Dugan et al v. Lloyds TSB Bank, PLC

Filing 217

ORDER DENYING MOTION FOR RECONSIDERATION, DENYING MOTION TO MODIFY CASE MANAGEMENT ORDER, AND VACATING HEARING by Hon. William Alsup denying 209 Motion to Amend/Correct ;.(whalc1, COURT STAFF) (Filed on 5/3/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOHN DUGAN, et al.,

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For the Northern District of California

United States District Court

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No. C 12-02549 WHA

Plaintiffs,
v.

ORDER DENYING MOTION FOR
RECONSIDERATION, DENYING
MOTION TO MODIFY CASE
MANAGEMENT ORDER, AND
VACATING HEARING

LLOYDS TSB BANK, PLC,

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Defendant.
/

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The case management order in this action set deadlines of November 30, 2012, for

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pleading amendments and March 7, 2013, for filing a motion for class certification (Dkt. No. 47

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at 2). After substantial briefing, a January 17 order permitted plaintiffs to file an amended

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complaint and add additional plaintiffs (Dkt. No. 98). It later became apparent that plaintiffs’

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purpose in amending was to expand the potential scope of their class certification motion.

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Plaintiffs timely filed their motion for class certification by the March 7 deadline (Dkt.

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Nos. 163–64). The motion sought to certify five classes and subclasses implicating residents of

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31 countries, with claims potentially subject to the laws of at least eight domestic and foreign

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jurisdictions. Plaintiffs were clearly “seeking certification of all the classes they could imagine,

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evidently hoping that the Court [would] filter the confusion into something coherent” (Dkt. No.

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203 at 3). Nevertheless, after extensive oral argument and four rounds of supplemental

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submissions, an April 19 order granted plaintiffs’ motion in part and certified two “120% clause”

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classes. Plaintiffs’ request to certify various “Cost of Funds” classes, however, was denied (Id.
at 7–12).

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Plaintiffs have now filed a motion for reconsideration, styled as a motion under

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Rule 21(c)(1)(C) to amend the class certification order. In the alternative, plaintiffs request that

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the case management order deadlines be modified so that they may file a second amended

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complaint and a second motion for class certification (Dkt. No. 209). Plaintiffs seek to reopen

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the class certification phase and certify an additional, “narrower” version of the rejected “Cost of

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Funds” classes.

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Leaving aside the procedural propriety of the instant motion, resolving plaintiffs’ class

classes in plaintiffs’ overbroad proposals. After much work and wading through voluminous

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materials, two potentially manageable classes were certified. Plaintiffs had the opportunity to

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For the Northern District of California

certification motion required a substantial investment of time and effort to identify certifiable

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United States District Court

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present a reasonable, narrow Cost of Funds class during the prior rounds of briefing. That

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opportunity has been lost. This order declines to reopen the class certification phase once again.

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A prior order warned plaintiffs that “[c]ounsel should be careful not to overreach lest

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their Rule 23 motions eventually collapse of their own weight” (Dkt. No. 92 at 6). Counsel

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should have heeded the admonition to avoid overreaching and to present manageable and

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coherent candidates for certification. To allow them to try again would reward an

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uncommendable tactic. And, the Court continues in the view that control over any cost-of-funds

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claim is best left to each borrower to be asserted individually if and when the bank asserts a

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default against said individual.
Plaintiffs’ motion for reconsideration is DENIED. Plaintiffs have not shown good cause

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under Rule 16(b) to modify the case management order. Accordingly, plaintiffs’ alternative

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motions are also DENIED. The June 6 hearing is VACATED. This ruling is without prejudice to

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any potential motion to narrow the certified classes or otherwise streamline the action prior to

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trial.

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IT IS SO ORDERED.

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Dated: May 3, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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