Otto v. Variable Annuity Life Insurance , 98 F.R.D. 747 ( 1983 )

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiff moves this Court to reconsider its ruling of July 12, 1983, which held in abeyance briefing on defendants’ motion to strike and dismiss and for summary judgment pending a ruling on plaintiff’s motion for class certification. Plaintiff requests, in essence, that the Court rule on defendants’ motion prior to ruling on class certification.

It is well settled that under Rule 23 of the Federal Rules of Civil Procedure, class certification should be decided prior to a determination on the merits. Peritz v. Liberty Loan Corporation, 523 F.2d 349 (7th Cir.1975). See also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (no hearing on merits may be held prior to class determination). It has been held, however, that the rule of Peritz does not preclude a ruling prior to class determination on issues not based on factual matters beyond the face of the pleadings. See, e.g., McCray v. Standard Oil Co., 76 F.R.D. 490 (N.D.Ill.1977). The question here, then, is whether the nature of defendants’ motion is procedural and addressed solely to the face of the pleadings or whether it goes to the merits of plaintiff’s motion.

We have reviewed defendants’ motion and conclude that ruling on the motion would require us to go well beyond the face of the pleadings and into the merits of plaintiff’s claim. Although certain paragraphs of the motion allege failure to state a claim, the overwhelming nature of the motion is one for summary judgment requiring the consideration of depositions and other exhibits. We agree with defendants that consideration of their motion would violate the teachings of Peritz and Eisen.^*

For these reasons, plaintiff’s motion for' reconsideration is denied. Briefing on defendants’ motion will be stayed pending a ruling on plaintiff’s motion for class certification. It is so ordered.

* Plaintiff may be assured that despite alleged forays into the merits of the case in defendants’ response to the motion for certification, this Court will rule on the motion for certification without improper consideration of the merits.