Colvin v. Citigroup Global Markets, Inc.

Filing 34

ORDER by Judge Claudia Wilken denying in part 24 Motion to (1) Withdraw as Representative Plaintiff, (2) Dismiss Plaintiff's Individual Claims Without Prejudice and (3) Conduct Discovery to Identify a Substitute Class Representative (cwlc3, COURT STAFF) (Filed on 10/13/2009)

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JUDITH COLVIN, Plaintiff, v. CITIGROUP GLOBAL MARKETS, INC., Defendant. / IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 09-00238 CW ORDER DENYING IN PART PLAINTIFF'S MOTION TO (1) WITHDRAW AS REPRESENTATIVE PLAINTIFF, (2) DISMISS PLAINTIFF'S INDIVIDUAL CLAIMS WITHOUT PREJUDICE and (3) CONDUCT DISCOVERY TO IDENTIFY A SUBSTITUTE CLASS REPRESENTATIVE On April 28, 2009, the Court conducted an initial case management conference for the present case. At the conference, the Court noted Plaintiff Judith Colvin's involvement in a related case, Bahramipour v. Citigroup Global Markets Inc., No. C 04-04440 CW, and indicated that it would initially limit discovery to Plaintiff's individual claims and permit the parties to file motions for summary judgment on those claims prior to proceeding with pre-class-certification discovery. Specifically, the Court On May 12, allowed 120 days for the parties to conduct discovery. 2009, Plaintiff moved to vacate the case management order, arguing 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that the order improperly allowed a merits determination prior to class certification. On June 11, 2009, the Court denied Plaintiff's motion because district courts may rule on the merits of a case before ruling on a motion for class certification. Wright v. Schock, 742 F.2d 541, 544 (9th Cir. 1984). On June 23, 2009, the parties' filed a joint statement outlining a summary judgment briefing schedule. On September 16, eight days before Defendant Citigroup Global Markets, Inc.'s (CGMI) motion for summary judgment was due, Plaintiff filed the present motion to (1) Withdraw as Representative Plaintiff, (2) Dismiss Plaintiff's Individual Claims Without Prejudice and (3) Conduct Discovery to Identify a Substitute Class Representative. Plaintiff also filed a motion to shorten time under which the Court will determine her underlying motion. The Court granted Plaintiff's motion to shorten time and it vacated the summary judgment briefing schedule. The Court now addresses Plaintiff's underlying motion. Plaintiff requests leave to withdraw as the representative plaintiff in this case "because she no longer wishes to serve in that capacity." explanation. Motion at 3. Plaintiff offers no further Although leave to add or subtract named plaintiffs after class certification is routinely granted, doing so prior to class certification is a different situation. After a class is certified, "`a class acquires a legal status separate from that of the named plaintiffs,' such that the named plaintiff's loss of standing does `not necessarily call for the simultaneous dismissal of the class action, if members of that class might still have claims.'" Velazquez v. GMAC Morg. Corp., 2009 WL 2959838 (C.D. Cal.) quoting Birmingham Steel Corp. v. Tennessee Valley Authority, 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 353 F.3d 1331, 1336 (11th Cir. 2003). Because no class has been certified in this action, Plaintiff's loss of standing would require simultaneous dismissal. Here, Defendant CGMI has already conducted discovery geared towards Plaintiff. This time will be entirely wasted if Plaintiff is allowed to withdraw and substitute a new class representative. Moreover, Plaintiff does not even have a substitute available and, in this motion, she seeks discovery to locate one. At the initial case management conference, the Court gave the parties 120 days to conduct discovery for the express purpose of allowing them to file motions for summary judgment prior to proceeding with pre-classcertification discovery. Thus, the discovery allowed to date was not for the purpose of locating an adequate class representative. However, Plaintiff appears to be asking for just that. The Court will not permit additional discovery to substitute a new class representative. The Court will allow Plaintiff to withdraw from the case, but with her absence, the case is left without a plaintiff and will be dismissed. Plaintiff shall notify the Court within three days from the date of this order whether she wishes to proceed with this action, either on an individual basis or as a class representative. If she does not, Plaintiff's claims will be dismissed with prejudice. If she chooses to go forward with the action, Defendant's motion for summary judgment will be due October 22; Plaintiff's opposition and cross motion for summary judgment will be due November 5; Defendant's reply and opposition to the cross motion will be due November 19; and Plaintiff's reply will be due December 3. The summary judgment motions will be heard on 3 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 December 17. IT IS SO ORDERED. Dated: 10/13/09 CLAUDIA WILKEN United States District Judge 4

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