Mora v. Harley-Davidson Credit Corp.

Filing 130

ORDER REQUESTING SUPPLEMENTAL Briefing on the Parties' Joint Motion for Preliminary Approval of Class Action Settlement 129 . Supplemental briefing by 7/16/2013. signed by Magistrate Judge Barbara A. McAuliffe on 7/11/2013. (Herman, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LUIS MANUEL MORA, individually, and
on behalf of the class,

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Plaintiff,
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vs.
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HARLEY-DAVIDSON CREDIT CORP., a )
corporation; and DOES 1 through 10,
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inclusive,
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Defendants.
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Case No.: 1:08-CV-01453-AWI-BAM
ORDER REQUESTING SUPPLEMENTAL
BRIEFING ON THE PARTIES’ JOINT
MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT

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Having reviewed the parties’ Joint Motion for Preliminary Approval of Class Action

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Settlement (Doc. 129), the Court requires additional briefing. Specifically, the Court is

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concerned with the parties’ request to narrow the scope of the already-certified Class. Despite

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substantial briefing on Plaintiff’s Motion for Class Certification (Doc. 85, 92, 100, 104), neither

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party argued that Class members subject to “pre-action judgments,” defined as Class members

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whose rights have been determined by a judgment taken prior to the filing of this action, could

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not be included in the certified class. This Court has serious concerns excluding these Class

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members at this late stage in the proceedings.

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Contrary to the parties’ representation, the California Court of Appeals decision in In re
Fireside Bank Cases, 187 Cal. App. 4th 1120 (Cal. App. 6th 2010) is not controlling authority

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because California law is not at issue. Rather, the parties’ motion concerns Federal Rule of Civil

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Procedure 23, and whether certain California-based affirmative defenses - namely, res judicata

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and collateral estoppel - should preclude the inclusion of some class members in a certified class.

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This Court has already held that “Rule 23 does not require that class certification be denied when

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a defendant may be able to assert unique defenses against putative class members.” Doc. 102,

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18: 25-26. Moreover, even if California law were at issue, a California Court of Appeal decision

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is not controlling authority for a federal court presiding over a diversity action. Gravquick A/S v.

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Trimble Navigation Int'l, Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003) (“In the absence of a

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controlling California Supreme Court decision, the panel must predict how the California

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Supreme Court would decide the issue, using intermediate appellate court decisions, statutes, and

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decisions from other jurisdictions as interpretive aids.”)

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The parties have not provided any logical rationale for excluding those class members.

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For instance, while the parties seek to exclude class members who are subject to a judgment

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taken prior to the filing of this action, the parties provide no authority or argument for why this

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rationale would not apply to class members who were subject to judgments taken after the filing

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of the complaint and before class certification, or indeed, for class members who had judgments

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taken against them post-certification. As this Court has already noted, “until a class is certified

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and the opt-out period has expired, unnamed Class members are not parties to this action, and

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their claims are not at issue.” Doc. 102, 22: 24-27.

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Finally, the parties have not provided any information concerning the class members they

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now seek to exclude, e.g., the number of “pre-action judgment” class members or the amount of

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damages associated with those class members. The Court will not exclude these Class members’

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claims without understanding the scope of these claims.

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The Court requires the parties submit a joint supplemental brief, not to exceed 10 pages

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in length, addressing these concerns no later than July 16, 2013, at 1:00 PM. Specifically, the

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supplemental brief shall provide basic information concerning the class members sought be

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excluded, e.g., the number of class members and the amount of their potential damages. The

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supplemental brief will also include a discussion as to why “pre-action judgment” class members

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should now be excluded from the certified Class. If so, the supplemental brief will also explain

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why any class member subject to a judgment, regardless of the time-frame, should be included in

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the Class.

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IT IS SO ORDERED.
Dated:
10c20k

July 11, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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