Friedman v. Dollar Thrifty Automotive Group, Inc. et al

Filing 270

ORDER Denying 261 Plaintiffs Renewed Motion for Certification of a Question of Law to the Colorado Supreme Court, by Judge Wiley Y. Daniel on 4/13/2016.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-02432-WYD-KMT
DR. ALLEN FRIEDMAN,
MICHAEL J. NELLIS, individually and on behalf of all others similarly situated,
Plaintiff,
v.
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC., d/b/a DOLLAR RENT A CAR;
DOLLAR RENT A CAR, INC.; and
DTG OPERATIONS, INC. d/b/a/ DOLLAR RENT A CAR,
Defendants.

ORDER

THIS MATTER is before the Court on Plaintiff’s Renewed Motion for Certification
of a Question of Law to the Colorado Supreme Court filed March 3, 2016. Plaintiff
renews its previous motion asking the Court, pursuant to Colo. App. R. 21.1, to certify
the following question of law to the Colorado Supreme Court:
Can the language of Colo. Rev. Stat. § 6-1-113(2) be interpreted to bar
bringing, maintaining or certifying claims for relief brought on behalf of
similarly situated putative class members for violations of the “prohibited
acts” provisions of the Colorado Consumer Protection Act (“CCPA” or the
“Act”), such that persons who bring claims for violations of that Act can
only seek relief on behalf of themselves?
(Pl.’s Mot. at 1-2.) A response was filed by Defendants on March 24, 2016.
I find that Plaintiffs’ motion should be denied. First, I already allowed Plaintiffs to
seek an interlocutory appeal on the issue of whether Colo. Rev. Stat. § 6-1-113(2) bars
class claims for monetary damages. (See Orders of December 10, 2015, ECF Nos. 246

and 247.) In so ruling, I denied Plaintiffs’ alternative motion asking that I certify the
question to the Colorado Supreme Court. (Id.) I find that allowing Plaintiffs at this
juncture to certify a question to the Colorado Supreme Court, more than nine months
after my denial of class certification on July 1, 2015, and at this late stage of the
litigation, would unreasonably delay the case and cause unnecessary burden and
expense. See Pueblo Country Club v. Axa Corp. Solutions Ins. Co., No. 05-cv-01296WYD-MJW, 2007 WL 1576348, at *3 (D. Colo. 2007).
As I observed nine months ago, “[t]his case has been pending since 2012 and
needs to move forward.” (ECF No. 228 at 1.) Despite that admonition, this case has
not advanced in any material way. Instead, since I denied class certification in July
2015, over nine months ago, Plaintiffs have filed seven motions and petitions attacking
that order: (1) a motion to stay enforcement of the order; (2) a motion to reconsider the
order; (3) a motion to certify the order for interlocutory review; (4) a motion to certify a
question to the Colorado Supreme Court; (5) a petition pursuant to 28 U.S.C. § 1292(b)
in the Tenth Circuit, which also requested certification to the Colorado Supreme Court;
(6) a petition pursuant to Fed. R. Civ. P. 23(f) in the Tenth Circuit, which also requested
such certification; and now (7) the renewed motion to certify a question to the Colorado
Supreme Court.
I find that the denial of Plaintiffs’ renewed motion is particularly appropriate in
light of the fact that Plaintiffs did not seek certification to the Colorado Supreme Court
until after Plaintiffs received an unfavorable ruling from me. Federal courts have

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rejected motions for state law certification in this situation. See Armijo v. Ex Cam, Inc.,
843 F.2d 406, 407 (10th Cir. 1988); Pueblo Country Club, 2007 WL 1576348, at *3.
Moreover, the Tenth Circuit has held that state-law certification is appropriate
only where the state law question “may be determinative of the case at hand.” Colony
Ins. Co. v. Burke, 698 F.3d 1222, 1235 (10th Cir. 2012). The “generally accepted”
understanding of “determinative” in this context “is that one answer the responding court
gives will terminate the case, while another will not.” Moore v. United States, 864 F.
Supp. 163, 165 n.3 (D. Colo. 1994) (internal quotations omitted).
Here, I agree with Defendants that the issue of whether class certification is
barred under the CCPA when monetary damages are sought does not appear to be
“determinative” in this case because this issue was only one of several significant
questions that were decided in connection with class certification. Thus, in an earlier
order on class certification (January 27, 2015 Order, ECF No. 160), I rejected
certification for all of Plaintiffs’ Florida claims—which represented over 95% of the
transactions at issue—on multiple Rule 23 grounds. If this case is ultimately reviewed
in the Tenth Circuit, the affirmance or reversal of that order will have an enormous
impact on this case and will not affect the issue of class certification under the CCPA.
Granting certification now would merely delay the final resolution of the other 95% of
claims at issue in Plaintiffs’ original suit. Also, Defendants assert that they will contend
in any appeal that the analysis in the January 27, 2015 Order supported the rejection of
class certification in full, including with respect to the CCPA claims, on grounds of
commonality, predominance, and ascertainability, among others. The Tenth Circuit
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could affirm the rejection of class certification in this case in full without reaching the
question of class certification under the CCPA.
Finally, the Tenth Circuit has noted that certification to the Colorado Supreme
Court should be the exception, not the rule. See Armijo, 83 F.2d at 407 (“Certification is
not to be routinely invoked whenever a federal court is presented with an unsettled
question of state law.”). “[F]ederal courts have the duty to decide questions of state law
even if difficult or uncertain.” Copier v. Smith & Wesson Corp., 138 F.3d 833, 838 (10th
Cir. 1998). Here, Plaintiffs chose to invoke this Court’s diversity jurisdiction and asked
the Court to adjudicate the Colorado state law claims. The ruling at issue in connection
with class certification under the CCPA claim was made over nine months ago, and it is
time to proceed to the merits of the case.
Based on the foregoing, it is
ORDERED that Plaintiff’s Renewed Motion for Certification of a Question of Law
to the Colorado Supreme Court (ECF No. 261) is DENIED.
Dated: April 13, 2016
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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