L v. Scottsdale Healthcare Corporation Health Plan et al

Filing 41

OPINION AND ORDER that Defendants' 32 Motion to Strike is denied. The parties have until 01/31/12 to conduct discovery on the class allegations. Signed by Judge Robert E Jones on 11/08/11.(ESL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
ELLEN LEMBERG,

)
)
Plaintiff,
)
)
v.
)
)
SCOTTSDALE HEALTHCARE CORPORATION )
HEALTH PLAN; ET AL.,
)
)
Defendants.
)
Daniel L. Bonnett
Jennifer L. Kroll
Susan J. Martin
MARTIN & BONNETT PLLC
1850 N. Central Avenue, Suite 2010
Phoenix, AZ 85004
Attorneys for Plaintiff
Barry D. Halpern
Jefferson R. Hayden
Joseph G. Adams
SNELL & WILMER LLP
1 Arizona Center, 400 E. Van Buren
Phoenix, AZ 85004-2202
Attorneys for Defendants

No. 2:11-cv-00271-REJ
OPINION AND ORDER

JONES, Judge:
Plaintiff brings this action against defendants Scottsdale Healthcare Corp. Health Plan,
Plan Administrator of the Scottsdale Healthcare Corp. Health Plan, and Scottsdale Healthcare
Corp., alleging claims for breach of contract, recovery of benefits, and enforcement of
rights under various provisions of the Employment Retirement Income Security Act
and under the terms of the Scottsdale Healthcare Corp. Health Plan. Plaintiff styles the action as
a class action, and alleges the existence of three subclasses.
The case is now before the court on defendants’ motion to strike class allegations (# 32).
For the reasons stated below, the motion is denied.
DISCUSSION
The Ninth Circuit recently held that as a procedural matter, Federal Rule of Civil
Procedure 23 “does not preclude a defendant from bringing a ‘preemptive’ motion to deny
certification” where the class action plaintiff has yet to seek certification. Vinole v. Countrywide
Home Loans, Inc., 571 F.3d 935, 939, 941 (9th Cir. 2009) (collecting cases and other
authorities). Defendants in this case, however, seek to deny class certification through the
vehicle of a Rule 12 motion to strike plaintiff’s class action allegations, an approach for which
defendant cites no direct authority and for which this court has located none.
Indeed, in Vinole the court cited with approval In re Wal-Mart Stores, Inc. Wage and
Hour Litigation, 505 F.Supp.2d 609 (N.D. Cal. 2007), noting that the district court properly
exercised its discretion in denying defense Rule 12 motions to dismiss and strike class allegations
because “defendant had not yet answered the complaint, discovery had not yet commenced, and

2 - OPINION AND ORDER

no motion to certify a class had been filed.” Vinole, 571 F.3d at 941 (citing In re Wal-Mart
Stores, 505 F.Supp.2d at 614-16).
In this case, defendants have filed an answer to plaintiff’s amended complaint, and it
appears that plaintiff initiated discovery in late September 2011. In her opposition brief to
defendants’ motion, plaintiff requests an opportunity to conduct discovery on her class
allegations, a request that this court will exercise its discretion to grant before considering the
merits of class certification. See Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1312,
1313 (9th Cir.1977) (“the better and more advisable practice for a District Court to follow is to
afford the litigants an opportunity to present evidence as to whether a class action was
maintainable. And, the necessary antecedent to the presentation of evidence is . . . enough
discovery to obtain the material, especially when the information is within the sole possession of
the defendant”.).
In sum, I deny defendants’ present motion and grant plaintiff’s request for discovery on
the class allegations. The cut-off date for this discovery will be January 31, 2012. I am
compelled to state, however, that I am skeptical that plaintiff’s proposed subclasses can meet the
rigorous commonality requirements described in detail by the Supreme Court in Wal-Mart
Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551-52 (2011), that is, a common contention “of such a
nature that it is capable of classwide resolution – which means that determination of its truth or
falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
131 S.Ct. at 2551.

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CONCLUSION
Defendants’ motion (# 32) is denied. The parties have until January 31, 2012, to conduct
discovery on the class allegations.
DATED this 8th day of November, 2011.

/s/ Robert E. Jones
ROBERT E. JONES
U.S. District Judge

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