F. et al v. Blue Shield of California et al

Filing 159

ORDER by Judge Hamilton terminating 148 Motion to Certify Class; denying 157 Motion for Leave to File Motion for Reconsideration (pjhlc1S, COURT STAFF) (Filed on 6/22/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANIEL F., et al.,

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Plaintiffs,

No. C 09-2037 PJH

v.

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BLUE SHIELD OF CALIFORNIA, et al.,

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ORDER DENYING MOTION FOR
LEAVE TO FILE MOTION FOR
RECONSIDERATION

Defendants.
_______________________________/

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For the Northern District of California

United States District Court

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Before the court is plaintiffs' request for leave to file a motion for reconsideration of

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the order denying class certification. Having read the parties' papers and carefully

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considered their arguments and the relevant legal authority, the court hereby DENIES the

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motion.

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BACKGROUND

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Plaintiffs filed this proposed class action against defendant Blue Shield of California

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("Blue Shield") on May 8, 2009, alleging two causes of action in connection with a denial of

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coverage for residential treatment for mental illness. Plaintiffs did not specifically assert a

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cause of action under ERISA, but alleged jurisdiction under 29 U.S.C. § 1132(e)(1), and

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also alleged in the first cause of action for "violation of the terms of the contract" that "[t]he

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[c]ontract is governed by ERISA and the laws of the State of California." Cplt ¶¶ 7, 79.

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Blue Shield moved to dismiss the complaint for failure to state a claim. On August 9,

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2009, the court denied the motion, finding that it involved issues of fact that could not be

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resolved in a Rule 12(b)(6) motion. The court directed the parties to meet and confer

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regarding the scheduling of discovery and a proposed briefing and hearing schedule for an

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early summary judgment motion. The court stated that it would rule on that motion before

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authorizing any class discovery or hearing any motion for class certification.

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Following a number of continuances, the court heard argument in Blue Shield's

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motion for summary judgment on February 16, 2011, and on March 3, 2011, issued an

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order granting the motion, and a judgment. Plaintiffs filed a notice of appeal, and on

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January 22, 2013, the Ninth Circuit issued an order reversing the judgment and remanding

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the case "for further proceedings consistent with" its decision in Harlick v. Blue Shield of

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Calif., 686 F.3d 699 (9th Cir. 2012). The Ninth Circuit mandate issued on February 14,

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2013, and on February 27, 2013, this court set an initial case management conference

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("CMC") for March 21, 2013. The date was subsequently continued to April 25, 2013.

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At the CMC, the court instructed the parties to meet and confer regarding class

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discovery and the scope and definition of the class. On August 15, 2013, the parties
submitted a joint CMC statement specifying an October 30, 2013 deadline for completion of

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For the Northern District of California

United States District Court

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"[d]iscovery on matters relevant to certification of the proposed class," and a November 15,

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2013 deadline for filing a motion for class certification. On October 25, 2013, the parties

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submitted a stipulation agreeing to amend the CMC order to continue the class discovery

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deadline to December 13, 2013, and the deadline for filing the class certification motion to

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January 17, 2014.

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On January 16, 2014, the parties submitted a stipulation to vacate the briefing and

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hearing schedule for the class certification motion. They asserted that they had "completed

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all discovery on matters relevant to class certification, other than a 30(b)(6) deposition of

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Blue Shield and the depositions of Daniel F.'s [sic] parents[,]" but that they would be unable

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to complete discovery by the January 17, 2014 deadline. The court vacated the briefing

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and hearing schedule, and set a telephone status conference for March 20, 2014.

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On March 13, 2014, the parties submitted a joint CMC statement, in which they

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stated that they had "completed all discovery on matters relevant to class certification,

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other than the depositions of [p]laintiffs Daniel F. and Shan O. by Blue Shield," which were

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scheduled to occur on March 25, 2014. On March 14, 2014, the court issued an order

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setting a briefing and hearing schedule for plaintiffs' motion for class certification. The

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order was subsequently slightly modified at the request of the parties. Plaintiffs filed their

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motion for class certification on May 2, 2014.
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On August 11, 2014, the court issued an order denying the motion. On August 18,

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2014, the court set a further CMC for October 2, 2014. In the joint CMC statement,

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plaintiffs proposed deadlines for completion of "additional discovery;" filing amendments to

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pleadings, motions to add parties, and dispositive motions; completion of alternative

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dispute resolution; and a proposed trial date. Blue Shield argued that the parties had

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engaged in sufficient discovery to mediate plaintiffs' individual claims, and requested that

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the court order mediation to be completed within 90 days. Alternatively, Blue Shield

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proposed deadlines for completion of any remaining merits discovery, and the filing and

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hearing of dispositive motions.
At the CMC, the court set a deadline of November 12, 2014 for plaintiffs to file a

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For the Northern District of California

United States District Court

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motion to amend the complaint, a deadline of January 19, 2015, for completion of non-

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expert discovery, and a deadline of February 25, 2015 for the filing of dispositive motions.

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The court also referred the case for private mediation to be completed by February 11,

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2015. On January 29, 2015, the parties submitted a stipulation to continue for 30 days the

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deadlines for completion of mediation and filing dispositive motions.

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On March 27, 2015, the deadline for the parties to file dispositive motions, and

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without any prior notice to the court or to Blue Shield, plaintiffs filed a "renewed motion

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requesting class certification." In the "renewed" motion, plaintiffs set forth a revised class

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definition, and also attached copies of transcripts of deposition testimony which they had

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referred to in their original motion (but had not attached in support of the motion).

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Up to that point, the court (and apparently, Blue Shield) had been under the

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impression that following the denial of class certification, the parties were litigating only the

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plaintiffs' claim of denial of coverage. On April 8, 2015, Blue Shield moved to strike the

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"renewed" motion as unauthorized by the court, and as having been filed in violation of the

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CMC order.

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On April 15, 2015, plaintiffs filed an opposition to the motion to strike, asserting that

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where a motion for class certification is denied without prejudice, a renewed motion is

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"acceptable and common." They argued that their renewed motion was not a motion for
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reconsideration, but was a "new motion based on additional evidence and a new proposed

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definition of the class." They also claimed that the "renewed" motion did not violate the

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CMC order because the court had imposed no deadline for filing a another motion for class

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certification, and because the motion was filed within the time allowed by the court for filing

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dispositive motions.

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On May 21, 2015, the court issued an order denying the motion to strike, and

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directing plaintiffs to file a request for leave to file a motion for reconsideration, pursuant to

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Civil Local Rule 7-9. Plaintiffs filed the motion on May 29, 2015, and Blue Shield filed an

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opposition on June 5, 2015.
DISCUSSION

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For the Northern District of California

United States District Court

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A.

In seeking leave to file a motion for reconsideration, the moving party must

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Legal Standard

specifically show reasonable diligence in bringing the motion, and one of the following:
(1) That at the time of the motion for leave, a material difference in fact or law
exists from that which was presented to the Court before entry of the
interlocutory order for which reconsideration is sought. The party also must
show that in the exercise of reasonable diligence the party applying for
reconsideration did not know such fact or law at the time of the interlocutory
order; or

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(2) The emergence of new material facts or a change of law occurring after
the time of such order; or

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(3) A manifest failure by the Court to consider material facts or dispositive
legal arguments which were presented to the Court before such interlocutory
order.

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Civ. L.R. 7-9(b). In addition, "[n]o motion for leave to file a motion for reconsideration may

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repeat any oral or written argument made by the applying party in support of or in

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opposition to the interlocutory order which the party now seeks to have reconsidered." Civ.

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L.R. 7-9(c).

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B.

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Plaintiff's Motion
Although plaintiffs request leave to file a motion for reconsideration, they begin by

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arguing that they are seeking not reconsideration of the prior order denying class

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certification, but rather a new ruling on a motion under Federal Rule of Civil Procedure
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23(c)(1)(C), to certify the class under a new or revised class definition.

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Rule 23(c)(1)(C) provides in its entirety that "[a]n order that grants or denies class

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certification may be altered or amended before final judgment." Plaintiffs argue that this

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provision provides a sufficient basis for their "renewed" motion for class certification, and

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argue that there was no need for them to seek leave to file a motion for reconsideration

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under Local Rule 7-9, or to otherwise seek leave to file the "renewed" motion for class

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certification. However, Rule 23(c)(1)(C) does not reference motions to alter or amend class

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certification orders, and it is not a separate mechanism by which a party can seek

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reconsideration of a prior order relating to class certification. Rather it is simply a provision
authorizing the court to alter or amend an order relating to class certification at any time

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For the Northern District of California

United States District Court

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prior to judgment.

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In ruling on plaintiffs' original motion to certify the class under Rule 23(b)(3), this

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court found that the definition of the proposed class was not sufficiently definite, and that

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plaintiffs' failure to articulate a definition of the proposed class created a major barrier to

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certification. The court also found that the class was not clearly ascertainable by reference

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to objective criteria, because the definition in the moving papers included class members

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who were not similarly situated; because none of the proposed class definitions was limited

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as to time; because plaintiffs had not identified a workable method by which the members

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of the proposed class could be identified; and because some of the proposed definitions

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appeared to include individuals whose membership in the class could be determined only

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by resolving the merits of each individual's claim.

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The court ruled (based primarily on Blue Shield's failure to oppose that part of the

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motion) that plaintiffs had arguably established the Rule 23(a) factors – numerosity,

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commonality, typicality, and adequacy of representation. However, with regard to the Rule

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23(b)(3) factors, the court found that plaintiffs had failed to establish that common issues

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predominated over questions affecting only individual members, as to both liability and

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damages; and had failed to establish that a class action would provide a superior method of

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adjudicating the claims.
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First, with regard to predominance, the court noted that plaintiffs had identified only a

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care for serious mental illness as defined in the Act, notwithstanding the residential care

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exclusion in its health plans – a question that was answered by the Ninth Circuit in Harlick.

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The court found that numerous individualized issues were raised as to liability, both as to

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whether a particular claimant's plan is governed by ERISA, and as to whether a claimant's

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claim falls under the scope of the Parity Act. In addition, the court found that plaintiffs had

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offered no proof that damages could be calculated on a classwide basis, and that

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calculating damages would in fact require manual review of each claimant's records, as

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well as discovery into what each claimant had paid, what he/she still owed, the nature of

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For the Northern District of California

single common question – whether the Parity Act requires Blue Shield to cover residential

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United States District Court

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the services provided, and the amounts attributable to services covered under the Parity

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Act.

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Second, the court found that a class action would not be a superior method of

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adjudicating the claims of the proposed class (however defined) as determinations of both

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liability and damages as to each member of the proposed class would require an

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individualized inquiry. The court concluded that the members of the proposed class had a

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stronger interest in controlling the prosecution of the individual actions because their

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individual monetary claims were likely to be substantial, and that no efficiencies would be

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gained by the class action vehicle. The court also found that managing the case as a class

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action would be difficult given the individual liability and damages issues.

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In the present motion, plaintiffs request leave to file a "renewed" motion to amend

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the court's prior order denying class certification. They seek to modify their definition of the

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proposed class, to eliminate the ambiguities and lack of clarity resulting from their prior use

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of several different proposed definitions. They also seek to "rectify [the] error" of failing to

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attach copies of the deposition testimony of Christina Godoy and Sheri Glago, which they

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previously cited in their original motion.

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However, the "renewed" motion does not mention Rule 23(c)(1)(C), and by and

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large, plaintiffs simply repeat certain arguments they previously made in support of the
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original motion. Indeed, they state that they are incorporating into the motion all of the prior

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memoranda filed in support of the original motion. They cite to no evidence in the present

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motion or in the "renewed" motion, apparently intending for the court to revisit the prior

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motion, with the addition of the evidence they previously cited but did not attach. This is

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nothing more than a request that the court reconsider its prior ruling.

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Plaintiffs have not satisfied the requirements of Local Rule 7-9. First, the "renewed"

class certification, which demonstrates only minimal diligence. Plaintiffs suggest that the

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delay in filing the motion was due to their need to complete further discovery. However, the

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only evidence provided with the "renewed" motion is the copies of transcripts of deposition

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For the Northern District of California

motion for class certification was filed more than seven months after the order denying

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United States District Court

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testimony that they cited in the original motion (but did not submit with the motion). In

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addition, as noted above, more than six weeks before plaintiffs filed the original motion for

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class certification, the parties filed a joint CMC statement in which they represented to the

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court that they had "completed all discovery on matters relevant to class certification, other

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than the depositions of [p]laintiffs Daniel F. and Shan O. by Blue Shield."

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importantly, plaintiffs have not shown that at the time they filed the motion for leave, a

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material difference in fact or law existed from that which was presented to the court before

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entry of the order denying class certification. They concede that there is no material

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difference in the law, and argue only that the revised class definition and the copies of

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transcripts of deposition testimony constitute "new facts."

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Plaintiffs have not pointed to any facts that "in the exercise of reasonable diligence"

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they "did not know . . . at the time of the interlocutory order.” See Civ. L. R. 7-9. A party

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seeking reconsideration "must show that the evidence was discovered after the dispositive

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order, that the evidence could not be discovered earlier through due diligence, and that the

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newly discovered evidence is of such a magnitude that had the court known of it earlier, the

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outcome would likely have been different.” Flintkote Co. v. Gen'l Accident Assur. Co. of

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Can., 692 F.Supp. 2d 1194, 1196-97 (N.D. Cal. 2010) (citing Dixon v. Wallowa Co., 336

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F.3d 1013, 1022 (9th Cir. 2003)). Neither a revised class definition nor deposition
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testimony that was available at the time of the original motion qualifies under these

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standards as a new fact or newly-discovered evidence.

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Nor have plaintiffs shown a manifest failure by the court to consider dispositive legal

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arguments that were presented to the court before the order denying class certification.

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Plaintiffs have addressed one portion of the court's finding regarding ascertainability – the

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finding that plaintiffs had provided no workable method by which the members of the class

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could be identified. Plaintiffs argue that the court failed to apply the correct test, and that in

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the Ninth Circuit "it is enough that the class definition describes a set of common

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characteristics sufficient to allow a prospective plaintiff to identify himself or herself as
having a right to recover based on the description. In support of this theory, plaintiffs cite

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For the Northern District of California

United States District Court

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Brazil v. Dole Packaged Foods, L.L.C., 2014 WL 2466559 at *4 (N.D. Cal. May 30, 2014)

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and McCrary v. Elations Co., LLC, 2014 WL 1779243 at *8 (C.D. Cal. Jan. 13, 2014).

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Both Brazil and McCrary were proposed consumer class actions alleging

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misrepresentations on product packaging. In both cases, the courts found that the class

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was ascertainable because the class definition provided "a description of the allegedly

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offending product and the eligible dates of purchase." In the McCrary court's view, this

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description of "a set of common characteristics" was sufficient to allow a prospective

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plaintiff to "identify himself or herself" as having a right to recover based on the description.

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McCrary, 2014 WL 1779243 at *8. Here, however, plaintiffs have not asserted a claim of

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false advertising in connection with the sale of a consumer product, but rather a claim of

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denial of coverage for residential treatment for mental illness, under an ERISA plan. The

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two scenarios are simply not analogous.

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More to the point for purposes of this motion, plaintiffs have not identified any

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dispositive legal argument that was presented to the court and which the court failed to

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consider. In the original motion, plaintiffs argued that the class definition must be

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sufficiently definite so that it is administratively feasible to determine whether a particular

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person is a class member. This is the same standard articulated by the court in its order

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denying class certification. Plaintiffs asserted further that it would be administratively
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feasible to determine whether a particular person is a class member because Blue Shield

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maintains a computer system that could identify the class members. The court considered

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this argument, and found, based on the evidence provided by Blue Shield, that unless Blue

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Shield conducted a series of individualized inquiries, it could not readily make that

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determination.

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The last requirement of Rule 7-9 is that a party seeking leave to file a motion for

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reconsideration may not repeat any oral or written argument it previously made in support

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of or in opposition to the interlocutory order for which it seeks reconsideration. As stated

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above, both the proposed "renewed" motion and the present motion can only be construed
as attempts to re-hash the arguments made in support of the original motion.

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For the Northern District of California

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Finally, while the class definition is relevant to the issue of ascertainability, the court

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previously found that the class was not ascertainable for numerous reasons apart from the

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lack of a comprehensible class definition. More importantly, the court denied class

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certification for reasons in addition to a lack of ascertainability – because plaintiffs failed to

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establish that common issues predominated, and failed to establish that a class action was

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superior to other available methods for the fair and efficient adjudication of the controversy.

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None of these findings are addressed in plaintiffs' proposed "renewed" motion.

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CONCLUSION
In accordance with the foregoing, the court DENIES plaintiffs' motion for leave to file
a "renewed" motion for class certification.
By separate clerk's notice, the court will set this case for a further CMC, to be
conducted telephonically.

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IT IS SO ORDERED.

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Dated: June 22, 2015
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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