November 27, 2022

Volume XII, Number 331


Ninth Circuit Says Local Rule 90-Day Deadline to File Class Certification Motion Incompatible With Federal Rule 23

In a case with potentially nationwide ramifications, the Ninth Circuit reversed a California district court’s decision striking a motion for class certification as untimely, finding the district court’s local rule requiring class certification motions be filed within 90 days of the complaint was inconsistent with Federal Rule of Civil Procedure Rule 23. Several other districts, including the Northern District of Georgia, the Northern District of Texas, and the Middle District of Florida, contain similar local rules.

In August 2015, the plaintiffs in the underlying suit, owners of sound recordings, filed a putative class action against CBS alleging intellectual property and other California state law violations. A Central District of California Local Rule imposed a deadline of 90 days from the filing of the complaint for plaintiffs to move for class certification. On the eve of the deadline, the parties stipulated to extend the deadline, but the district court denied the stipulation for failure to show cause. Two days later, the court denied another joint stipulation to extend the deadline without explanation. The plaintiffs then filed a timely motion for class certification, which the district court struck for technical reasons unrelated to the local rule filing deadline.

On appeal of that decision and the court’s later grant of summary judgment, the Ninth Circuit reversed the order striking the class certification motion and class allegations. In so ruling, it found an inconsistency between the Local Rule’s strict 90-day deadline and the flexible approach of Rule 23, which provides for determination of class certification at “an early practicable time” after suit is filed. The court characterized the Local Rule’s deadline as “impracticable” and the bright-line imposed by it as incompatible with Rule 23. Accordingly, the court reversed and remanded for consideration on the merits of the class certification motion and whether pre-certification discovery is warranted.

This ruling calls into question the validity of the same local rule adopted by other districts. Class plaintiffs, nonetheless, should comply with those rules or seek to extend the deadline, either by motion or case management scheduling, at peril of having their class allegations stricken.

ABS Entm’t, Inc. v. CBS Corp., No. 16-55917 (9th Cir. Oct. 31, 2018).

©2011-2022 Carlton Fields, P.A. National Law Review, Volume IX, Number 4

About this Author

Thaddeus H. Ewald, Carlton Fields, Litigation lawyer

Thaddeus Ewald's practice focuses on class actions and complex civil litigation in the insurance and financial services industries.

Thaddeus completed a dual-degree program at Georgetown University, graduating in December 2012 with a bachelor’s degree in government and in August 2013 with a master’s degree in American government.

While in law school, Thaddeus served as senior executive editor of The George Washington Law Review. Additionally, he worked as a legal intern with the U.S. Department of Justice in the Fraud Section of the Criminal...

Matthew Allen Class Action Antitrust Litigator

Matt Allen has particular emphasis in class action and antitrust litigation, having litigated dozens of class actions last year alone. More broadly, his area of practice is complex litigation, including antitrust law, deceptive trade practice law, insurance litigation, appellate law, and general business disputes.

Matt is board certified by The Florida Bar in Antitrust and Trade Regulation Law.