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Only One Bite at the Class Certification Apple: Court Denies Plaintiff’s Request for a “Do-Over” Based on Evidence that Could Have Been Brought Before

As a litigator, there’s nothing more important than pleading your case – and a recent case from the Eastern District of Pennsylvania reminds us that in litigation, more often than not, there are no chances for do-overs.

In Kelly v. Realpage, Inc., No. 2:19-cv-01706-JDW, 2021 U.S. Dist. LEXIS 842 (E.D. Pa. Jan. 5, 2021), plaintiffs brought a putative class action alleging that Realpage had violated the Fair Credit Reporting Act (FCRA) in collecting and disclosing information about eviction proceedings.  The court, however, denied plaintiffs’ motion for class certification.  In its Memorandum Opinion and Order, the court found that plaintiffs’ proposed classes were not ascertainable, as there was no easy way to tell which potential class members’ file contained a public record and could fall within the class, and that individual inquiries predominated over current issues.  Two weeks after the court issued the opinion, Plaintiffs moved for reconsideration based on three purportedly “new” pieces of evidence: excerpts of two depositions, taken in February 2020 and November 2020, and a declaration from December 2020.

With respect to the February and November depositions, the court found that the evidence was not new.  The February deposition took place months before the parties briefed Plaintiffs’ class certification motion, and Plaintiffs had even included another excerpt of the declaration in their class certification motion – so it was not “new”.  The November deposition was also taken before the court ruled on the motion, and the court explained that Plaintiffs had ample opportunities to put that evidence before the court, including by filing a supplemental brief.  Because Plaintiffs had both the February and November depositions available before the court ruled, the court found that they could not be considered “new” for the purposes of a reconsideration motion.  Plaintiffs had previously had the opportunity to put both pieces of evidence before the court, but had made the choice not to.

The court also considered the December declaration, which Plaintiffs had obtained after the court had already ruled on class certification – but Plaintiffs did not explain why they had waited until after the ruling to obtain the declaration.  The court noted that the issue that was the topic of the declaration – whether a manual search would be needed to determine class members – had been disputed in the briefing on the class certification motion, and Plaintiffs could have obtained the declaration then.  Instead, as the court put it: “they got [the] declaration so that they could respond to the Court’s ruling. But that’s not how litigation works.”

Because the Kelly court found that the evidence was not “new”, it also denied Plaintiffs leave to file a new class certification motion, finding that there was not “good cause” to amend the parties’ scheduling order.  The court noted that scheduling orders are intended to keep cases moving forward, which could not happen “if parties could file renewed motions any time they thought of a way to address a court’s decision.”

Kelly also demonstrates the critical importance of following the local rules, which can make or break a case.  Plaintiff had argued that class members could be identified administratively with the aid of computers – but did so in a footnote.  The court found that Plaintiffs had not satisfied their burden in arguing the point and noted that the judge’s policies and procedures explained that the court would not consider substantive arguments raised in footnotes – so even if the argument had been properly supported, the court would not have considered it.

As Kelly demonstrates, the applicable rules of civil procedure can have just as much of an impact on the outcome of a case as the merits.  Your time before the court is valuable – and limited.  

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 12
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About this Author

Christina Lamoureux Litigation Attorney Squire Patton Boggs Washington DC
Associate

Christina Lamoureux is an associate in the Litigation Practice in the Washington DC office. She represents a wide variety of clients in complex commercial matters.

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