Johnson et al v. Allstate Insurance Company

Filing 305

ORDER, DENYING 251 MOTION to Clarify ECF Nos. 191, 238 filed by Allison Conrads, Larry Steier, Roy Hyman, Jerry L Nelson, Theodore Wolleydt, James B Bolen, Anna Anderson, Wilbon Johnson, Willie Holman, Ishmael Brown, Sr., Lonzie Autry, Jr., Marilyn Butler, Larsine Adams, Trina Perkins, Gloria Smith, Anthony L. Richardson, Donita Dale, Lewis Langston, Robert L. Johnson, Sr., Jack Calderone, Michael J Kozicki, Lonnie Griffin, Bhagavan Balaji.Signed by Judge Michael J. Reagan on 8/9/2011. (mmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT L. JOHNSON, SR., et al.,
Plaintiffs,
v.
ALLSTATE INSURANCE COMPANY,
Defendant.

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Case No. 07-cv-0781-SCW

MEMORANDUM AND ORDER
REAGAN, District Judge:
In this putative class action, Plaintiffs claim Defendant Allstate calculated
premium rates for certain insurance policy holders in contravention of the consumer fraud laws
of Illinois and other states. Class certification was denied on September 29, 2010 (Doc. 238).
On January 10, 2010, all parties consented to have this action decided by a Magistrate Judge, in
accordance with 28 U.S.C. § 636(c) (Doc. 248). The undersigned District Judge referred this
case to United States Magistrate Judge Stephen C. Williams for all further proceedings (Doc.
249), although the parties and Judge Williams all agreed that the undersigned District Judge
would rule on Plaintiffs’ impending motion to clarify its prior rulings.
Plaintiffs’ Motion for Clarification (Doc. 251) is now before the Court, as well as
Defendant Allstate Insurance Company’s Memorandum in Opposition (Doc. 255), and Plaintiffs’
Reply (Doc. 257). Plaintiffs seek “clarification” of the Court’s rulings regarding the timing of
discovery and production of opinion testimony, and the ruling denying class certification. From
Plaintiffs’ perspective, the rulings are inconsistent.

1. Relevant Procedural History
Discovery has been contentious and lengthy, Allstate having disclosed
approximately 3,000,000 documents, and Plaintiffs having had the unenviable task of combing
through this large amount of technical information. As a result, the Court has attempted to
accommodate the parties by amending the pretrial schedule.
Plaintiff’s initiated this action on November 5, 2007. On March 18, 2008, an
initial scheduling order was entered, setting a September 8, 2008, deadline for Plaintiffs to
disclose their experts regarding class certification; Plaintiffs’ motion for class certification was
due September 15, 2008; and trial was set for September 28, 2009 (Doc. 18). Discovery was
bifurcated, with a second round of discovery slated after the class certification issue was decided.
During 2008 and 2009, Allstate sent Plaintiffs around 2,000,000 documents in
response to Plaintiffs’ first round of interrogatories and document requests. Discovery was so
voluminous and technical that on December 15, 2008, the Court granted the parties a seven
month continuance (Doc. 58).

Under that revised schedule, Plaintiffs’ motion for class

certification was due by May 8, 2009; and trial was moved to April 26, 2010. Nonetheless,
Plaintiffs later complained of difficulty deciphering the documents relating to the algorithm
scores.

In particular, Plaintiffs had trouble determining the time periods that the various

insurance-scoring algorithms and rating manuals were used for the different plaintiffs (see Doc.
89-12).
Due to the volume and the technical complexity of the information discovered, on
May 5, 2009, the parties jointly filed a Motion for Extension of Class Certification Deadlines
(Doc. 73). The Court granted the motion on May 11, 2009 (Doc. 75), extending the deadline for
Plaintiffs’ motion for class certification by 60 days, to July 7, 2009, and setting the date for

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Plaintiffs’ expert disclosure at June 15, 2009, with no rebuttal experts without leave of the court.
Trial remained set for April 26, 2010.
Despite this 60-day extension, on July 2, 2009, the parties jointly moved for a
third extension, again citing the volume and complexity of the discovery (Doc. 82). The Court
granted the parties’ joint motion on July 8, 2009 (Doc. 83), extending Plaintiffs’ class
certification motion deadline to July 28, 2009. In an effort to afford Plaintiffs additional time,
they were given until July 28, 2009, to make their expert disclosure, and until September 4,
2009, to get their expert(s) deposed.

Defendant’s memorandum in opposition to class

certification was not due until September 29, 2009. Trial remained set for April 26, 2010.
Even after multiple extensions were granted, Plaintiffs still had difficulty
digesting the information related to algorithms and rating manuals contained in Allstate’s
documents. As a result, on July 21 and 23, 2009, Plaintiffs deposed Erin English, corporate
representative for Allstate, on 12 separate topics. English’s deposition was protracted due to
incomplete documentation (see Doc. 86, p. 2 ¶ 4; see also Doc. 89-21 and 89-22). On July 26,
2009, with the July 28 deadline for Plaintiffs’ motion for class certification fast approaching, and
not having finished the deposition, the parties jointly filed a fourth motion for an extension of
time (Doc. 86). The parties specified that there was a need for further production of documents,
the corporate representative’s deposition still needed to be completed, and these matters still
needed to be reviewed by Plaintiffs’ expert (Doc. 86, p. 2 ¶ 4). An extension of the expert
disclosure deadlines was also sought (Doc. 86, p. 3 ¶ 5).
On July 27, 2009, the court denied this joint motion for extension of time, noting
that “[c]ounsel practicing before this Court know from personal experience, as well as the

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Court's website, that the Court sets specific, not presumptive trial dates” (Doc. 87). As the
Order makes clear, the Court’s calendar simply could not accommodate another extension.
On August 3, 2009, having missed the July 28 deadline to disclose their experts
and to file their motion for class certification, Plaintiffs quickly moved for sanctions or,
alternatively, for this Court to reconsider its decision to deny a further extension of time (Doc.
89). Plaintiffs based this motion on the fact that Allstate had sent them an additional 850,000
documents on July 28. Plaintiffs argued:
It is simply impossible for Plaintiffs and their experts to (a) review this
mountain of information; (b) determine the effect that the information
has on class certification; and (c) make appropriate adjustments to both the
motion for class certification and any expert reports before the August 4
deadline. Under these circumstances, the
Court should enter an order
conditionally certifying this case as a class action.
****
Alternatively, Plaintiffs request that the Court reconsider, in part,
its Order denying the Parties Joint Motion for Extension of Time (Doc.
87), and extend Plaintiffs’ deadline to file their motion for class
certification and to submit expert reports for 30 days. Plaintiffs understand
the Court’s desire to hold the current trial setting, and they are not asking
the Court for a continuance. However, Plaintiffs reasonably believe that
they need 30 days to review the substantial volume of documents and
supplemental discovery response produced last week and incorporate that
information into their class certification motion and expert reports.
(Doc. 89, pp. 8-9).
In response, Allstate asserted that the 850,000 documents were in response to
Plaintiffs’ relatively recent second round of interrogatories and document requests concerning
new class definitions and named plaintiffs1, whereas the first 2,000,000 documents disclosed
were in response to the first round of interrogatories and document requests concerning the

1

Plaintiffs amend their class definition during the class certification hearing on January 7, 2010
(see Doc. 150; Doc. 159, pp. 72, 127-128 and 130).
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original class definitions and named plaintiffs (see Doc. 94). On August 4, 2009, Plaintiffs
submitted their Motion to Certify the Class (Doc. 91), although their motion for sanctions and for
reconsideration of the denial of an expanded schedule (Doc. 89) was still pending.
On September 3, 2009, the day before Allstate’s response to the motion for class
certification was due, Plaintiffs moved for leave to amend the complaint in order to add claims
under the laws of four groups of states (Doc. 106). This was, admittedly, a peremptory move by
Plaintiffs, should the Court conclude that Illinois law did not apply nationwide to Allstate’s acts
and practices.
On January 7, 2010, a hearing was held regarding the motion for class
certification and other related motions, including the motion for sanctions and/or for
reconsideration, and the motion to amend the complaint. On January 10, 2010, Allstate moved
for clarification regarding its submission of PowerPoint slides during the class certification
hearing (Doc. 152). In Plaintiffs’ response to this motion, months after their July 28, 2009,
deadline to disclose experts and after the class certification hearing, Plaintiffs moved to
supplement the hearing’s record with an affidavit from John Ulzheimer, an expert opining that
named plaintiff Robert Johnson would have paid a lower premium if scored under a different
algorithm active during the term of his insurance policy with Allstate (Doc. 162-6, pp. 1-3).
On March 29, 2010, the Court granted Plaintiffs leave to amend the complaint to
add additional plaintiffs from other states (Doc. 191). The Court reasoned that, although an
amendment two years into litigation would normally be prejudicial, the overall scheme at issue
was the same, except that the new plaintiffs’ policies and causes of action came from different
states (Doc. 191, p. 4). Furthermore, during the class certification hearing, the Court had already
permitted Plaintiffs to amend their class definition nunc pro tunc. The Court also ordered that a

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new motion for class certification be filed, and that the parties re-brief the issue (Doc. 191, pp. 56). Relative to Plaintiffs’ motion for sanctions against Allstate for “discovery dumping,” the
Court stated the following:
This motion [for sanctions] is no longer an issue. Given the developments
in the case, the Court will be giving the plaintiffs an opportunity to file a
new class certification motion. As their motion for sanctions was
premised on the prejudice caused by the voluminous and supposed late
response to the discovery requests, the additional time that the Court is
now granting to prepare a new motion for certification will cure whatever
prejudice resulted from the alleged discovery abuse. But the Court
cautions all sides that this type of discovery dumping will not be
countenanced.
(Doc. 191, p. 6). Plaintiffs were given until April 12, 2010, to file an amended motion for class
certification (Doc. 191, p. 7). Plaintiffs’ alternate request for further amendment of the precertification schedule-- specifically the deadline for expert disclosures-- was not addressed by the
Court.
On April 8, 2010, the parties jointly moved for an extension of time for Plaintiffs
to file an amended complaint, for Plaintiffs’ motion for class certification, and for Allstate’s
response, in order to accommodate the need for discovery related to the newly named plaintiffs
(Doc. 192). Although ongoing discovery was discussed, the motion did not request an extension
of time within which to identify experts. Ultimately, the Court granted a one-day extension of
time to file the amended complaint, but the parties’ motion was otherwise denied (Docs. 199 and
200). Plaintiffs also submitted their new Motion to Certify Class (Doc. 194).
On September 29, 2010, the Court issued a Memorandum and Order on Class
Certification, denying Plaintiffs’ Motion to Certify Class and Plaintiffs’ motion to supplement
the record of the class certification hearing with Mr. Ulzheimer’s affidavit (Doc. 238). The
Court found that Plaintiffs failed to demonstrate that they would adequately represent their

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proposed classes and that their class action would not qualify under either Rule 23(b)(2) or (3)
(Doc. 238, pp. 8-19).
In regards to the “adequacy of representation,” the Court noted that Plaintiffs
chose to define their classes broadly. The nationwide class, with some exceptions, consisted of
people: (1) named on an automotive, motorcycle, homeowners, or renters’ insurance policy, (2)
issued by an Allstate-affiliated entity between August 1, 1999, and September 15, 2007, (3)
whose premium was calculated at least in part through an insurance scoring algorithm, (4) the
person was assigned to a tier less than the most favorable tier, and (5) due to the use of an
algorithm that calculated a higher premium than another algorithm in effect at that time in the
same state, company, and line. The proposed subclasses had largely similar definitions (Doc.
238, pp. 8-9). The Court reasoned that these broad class definitions necessarily overlapped with
the merits of the case: “If the named plaintiffs actually satisfy the third, fourth and fifth criteria in
the class, then they would have necessarily suffered the ill-effects of being rated under old
algorithms when Allstate had moved on to another algorithm for the rest of its customers.” (Doc.
238, p. 9.) Thus, it was necessary for the Court to conduct a preliminary inquiry into the merits
of Plaintiffs’ claims.
Looking into the merits, the Court noted that Mr. Ulzheimer’s affidavit was the
only evidence Plaintiffs had submitted that demonstrated whether any plaintiffs had premiums
that would be lower under another algorithm. Ulzheimer’s affidavit only pertained to named
plaintiff Robert Johnson. The Court noted that this evidence was problematic because it was not
proffered at the hearing on class certification, but instead was proffered in the response to
Allstate’s motion to supplement the hearing, after the hearing (Doc. 162).

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The Court had previously ordered Plaintiffs’ expert to take place by July 28,
2009. Even without this deadline, Plaintiffs’ disclosure of Mr. Ulzheimer was well beyond the
30-day default deadline prescribed in Federal Rule of Civil Procedure 26(a)(2)(C). Additionally,
the Court found that Plaintiffs’ failure to disclose Ulzheimer was not “substantially justified” or
“harmless” under Federal Rule of Civil Procedure 37(c)(1) (Doc. 238, pp. 11-13). In January,
Plaintiffs had received the algorithms upon which Ulzheimer’s affidavit was based-- well before
the hearing or the so-called “discovery dump.” The Court also found that the Plaintiffs would
not qualify as a class action under either Rule 23(b)(2) as an equitable class, or Rule 23(b)(3) due
to the class being unmanageable (Doc. 238, pp. 15-19).

2. The Present Motion
Plaintiffs now move for the Court to “clarify” its September 29, 2009,
Memorandum and Order on Class Certification (Doc. 238) in light of perceived inequity
resulting from supposedly inconsistent prior rulings. Specifically, Plaintiffs ask the Court to
consider their expert John Ulzheimer as properly disclosed for the sake of proving Robert
Johnson’s damages, vacate the denial of Plaintiffs’ Motion to Certify Class, and clarify the
disposition of Plaintiffs’ Motion for Sanctions.
Plaintiffs’ “Motion for Clarification” is miscaptioned. The record speaks for itself
and the Court does not perceive a need to clarify or parse its prior orders. What Plaintiffs want is
for the Court to reconsider its rulings.

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3. The Applicable Legal Standard
The Court first notes that Plaintiffs cite no legal authority or basis for
“clarification” or reconsideration in its motion (Doc. 251). In their “Reply in Further Support of
Plaintiffs’ Motion for Clarification” (Doc. 257), Plaintiffs cite to Federal Rule of Civil Procedure
54(b), as well as Divane v. Krull Elec. Co., 194 F.3d 845, 848 (7th Cir. 1999), for the
propositions that a motion for clarification must be granted if the Court’s ruling contained “a
manifest error of law or fact.” The standard articulated in Divane pertained to a Rule 59(e)
motion, which is appropriate only “after the final judgment has been entered.” See Crestview
Village Apartments v. U.S. Dept. of Housing and Urban Development, 383 F.3d 552, 558 (7th
Cir. 2004). There has been no final judgment entered in this case, so Plaintiffs’ reference to Rule
59(e) is improper.2
In accordance with Federal Rule of Civil Procedure 54(b), an interlocutory order
may be revised at any time before entry of final judgment adjudicating all claims and all parties’
rights and liabilities. Accord Marconi Wireless Tel. Co. of Am. v. United States, 320 U.S. 1, 4748 (1943). Reconsideration of an interlocutory order is committed to a court’s sound discretion.
Lewis v. District of Columbia, 736 F.Supp.2d 98, 102 (D.D.C. 2010); see also Koelling v.
Livesay, 239 F.R.D. 517, 519 (S.D.Ill.2006); Harrisonville Tel. Co. v. Illinois Commerce
Comm'n, 472 F.Supp.2d 1071, 1074 (S.D.Ill.2006); Fisher v. National R.R. Passenger Corp.,
152 F.R.D. 145, 149 (S.D.Ind.1993).
The Seventh Circuit has a restricted view of motions to reconsider interlocutory
orders, stating that they serve a limited purpose: “to correct manifest errors of law or fact or to
2

“The standard for the court’s review of an interlocutory decision differs from the

standards applied to final judgments under Federal Rules of Civil Procedure 59(e) and
60(b).” Lewis v. District of Columbia, 736 F.Supp.2d 98, 101-102 (D.D.C. 2010) (offering a
thorough but succinct analysis of the differences between Rules 54(b), 59(e) and 60(b)).
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present newly discovered evidence.” Publishers Res., Inc. v. Walker-Davis Publ'ns, Inc., 762
F.2d 557, 561 (7th Cir.1985) (quoting Keene Corp. v. Int’l Fidelity Ins. Co., 561 F.Supp. 656,
665 (N.D.Ill.1982), aff'd, 736 F.2d 388 (7th Cir.1984)). Examples of manifest errors of law or
fact include when “the Court has patently misunderstood a party, or has made a decision outside
the adversarial issues presented to the Court by the parties, or has made an error not of reasoning
but of apprehension.” Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288
(N.D.Ill.1988) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101
(E.D.Va.1983). However, motions to reconsider are inappropriate for introducing evidence
previously available or for tendering new legal theories. Bally Export Corp. v. Balicar, Ltd., 804
F.2d 398, 404 (7th Cir.1986) (citing Publishers Res., Inc., 762 F.2d at 561). “In general, a
district court’s rulings ‘are not intended as mere first drafts, subject to revision and
reconsideration at a litigant’s pleasure,’ and ‘ill-founded requests for reconsideration of matters
previously decided . . . needlessly take the court’s attention from current matters and visit
inequity upon opponents who, prevailing in an earlier proceeding, must nevertheless defend their
position again and again.’” Harrisonville Tel. Co., 472 F.Supp.2d at 1074 (quoting Berger v.
Xerox Ret. Income Guar. Plan, 231 F.Supp.2d 804, 820 (S.D.Ill.2002)).
4. Discussion
In support of their present motion, Plaintiffs advance multiple arguments: that
Plaintiffs did not have access to discovery necessary to disclose John Ulzheimer as an expert;
that Allstate admitted as much in the March 8, 2010, joint motion for extended time; that
Plaintiffs actually did submit Mr. Ulzheimer’s affidavit prior to the Court’s deadline, which was
extended when Plaintiffs’ Motion for Sanctions was denied as moot; and that the Court should
vacate its ruling on the Motion to Certify Class because equity requires as much.

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a. Plaintiffs’ Access to Discovery Concerning Johnson’s Rate Calculation
In their Motion for Clarification, Plaintiffs claim they “did not have the discovery
necessary to prove damages for each of the named plaintiffs[.]” This statement is somewhat
misleading. Plaintiffs’ Motion to Certify Class was not denied on the basis of failing to prove
damages for each named plaintiff, but for failing to prove damages for any named plaintiff,
which meant that no one adequately represented the proposed nationwide class (see Doc. 238,
pp.8, 10 and 14). Plaintiffs needed only have available sufficient information to prove damages
for one named plaintiff. Therefore, the crucial question is whether Plaintiffs had sufficient
information available to them by the Court’s deadline to disclose an expert relative to Robert
Johnson.
Plaintiffs can only be excused from Rule 26(a)’s requirement of disclosing their
experts if their failure to do so was “substantially justified” or “harmless.”

Fed.R.Civ.P.

37(c)(1). In the September 29, 2009, Memorandum and Order on Class Certification, the Court
looked to “(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the
ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the
bad faith or willfulness involved in not disclosing the evidence at an earlier date.” David v.
Caterpillar, Inc., 324 F.3d 851 (7th Cir. 2003); see also Doc. 238, pp. 11-14.
In the present motion, Plaintiffs claim that Allstate’s first round of disclosures
“did not contain the information necessary for Plaintiffs to calculate the insurance scores and
premiums of the named plaintiffs.” According to Plaintiffs, this prompted their second round of
interrogatories and document requests, which in turn led to Allstate’s subsequent 850,000 page
disclosure, which they could not digest in time to disclose their expert.

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The Court takes issue with various aspects of Plaintiffs’ portrayal of discovery
practice in this case. It is true that Allstate’s disclosure in response to the first round of
discovery was quite voluminous. Because of this, the Court granted a seven-month continuance
and then two subsequent extensions. However, Allstate’s 850,000 page disclosure related to
Plaintiffs’ second round of interrogatories and document requests, which did not contain
information necessary to calculate Robert Johnson’s insurance scores and premiums. Instead,
the new information related to the amended class definitions and newly named plaintiffs (Doc.
192, p. 2). Allstate’s second round of disclosures, although voluminous, does not evince “bad
faith or willfulness involved in not disclosing the evidence” that would prevent Plaintiffs from
disclosing an expert relative to Robert Johnson.
Plaintiffs have presented no information that would suggest they were missing
critical information to disclose their expert. In fact, the docket suggests they had access to all
necessary information to disclose an expert by the deadline.

As the Court noted in its

Memorandum and Order, Plaintiffs had available sufficient information by the Court’s deadline
to disclose an expert to opine about Robert Johnson’s damages (Doc. 238, p. 12). For example,
as early as May 5, 2008, Plaintiffs had access to an “IFS table” containing Robert Johnson’s
insurance issuing company, Johnson’s policy numbers and policy types, the date his insurance
scores were determined, the period each policy was in effect, the rating manual in effect at the
time the insurance scores were determined, the “IS group,” and the algorithm used to determine
the insurance score (Doc. 89-12, p. 13; Doc. 89-20, p. 12). In fact, Plaintiffs have proffered
nothing that suggests information related to Robert Johnson’s rate calculation was unavailable
(see Doc. 162-6, p. 2).
As noted in his affidavit, Mr. Ulzheimer listed the Bates numbers of the documents

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he relied upon (Doc. 162-6, p. 2). Parties’ correspondence contained in the docket shows that, at
a minimum, documents through Bates No. A1543363 were disclosed by June 23, 2009 (Doc. 8915, p. 1). The only documents used by Mr. Ulzheimer that were not disclosed before the expert
disclosure deadline were IFS spec sheets provided by Allstate to the FTC, at Bates Nos.
A3697181–88 (Doc. 89-15, p. 1; Doc. 155). Plaintiffs have advanced no arguments as to why
these specific documents were critical to an expert opinion relative to Robert Johnson. It appears
Mr. Ulzheimer reviewed these documents to help determine whether Mr. Johnson’s credit score
would be raised due to a “clean” credit report, or lowered due to an “unacceptable” report. In the
end, though, Ulzheimer did not use these factors at all: “[F]or calculation of score I did not
include either a deduction for "clean" or an addition for ‘unacceptable’” (Doc. 162-6, p. 9).
Thus, although apparently not disclosed before the expert disclosure deadline, the contents of
these documents were not necessary for Mr. Ulzheimer, or any expert, to give an opinion about
Robert Johnson’s damages. Plaintiffs were not prejudiced by the absence of these documents.
Accordingly, the Court was not clearly erroneous in finding Plaintiffs’ failure to timely disclose
their expert was not “substantially justified” or “harmless.”

b. Joint Motion for Extension of Time
Plaintiffs next assert that Allstate, in jointly moving for a time extension with
Plaintiffs, implicitly admitted it had not produced sufficient discovery to allow Plaintiffs to
disclose their expert. This is not supported by the docket. The parties’ joint motion was entitled
Plaintiffs’ and Defendant’s Agreed Motion for an Extension of Time for Deadlines to File
Amended Complaint, Motion for Class Certification, and Response to Motion for Class
Certification (Doc. 192). Notably, the caption does not suggest this was a motion to extend the

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expert disclosure deadline. In fact, there is no language in this motion seeking extension of the
expert disclosure deadline. Nor does the motion concern information related to disclosure of an
expert opining about Robert Johnson’s damages.

Instead, the motion seeks additional time to

review the disclosed information after Plaintiffs “requested that Allstate provide the insurance
scoring information pertaining to the new plaintiffs.” Because of this, this joint motion is neither
evidence that Allstate engaged in “discovery dumping” that prejudiced Plaintiffs’ ability to
disclose Mr. Ulzheimer before the Court’s deadline, nor that Allstate admitted the same.”

c. Submission of the Affidavit Prior to the Court’s Revised Deadline and
Plaintiffs’ Motion for Sanctions
As the Court notes in its Memorandum and Order, the date of Plaintiffs’ deadline
for expert disclosure was given with the utmost clarity: “Plaintiffs expert disclosure and written
reports pursuant to Federal Rule of Civil Procedure 26 shall be provided by July 28, 2009”
(Doc. 83). Despite this, Plaintiffs claim that the Court implicitly extended the July 28 deadline
in the March 29, 2010, Memorandum and Order. Plaintiffs’ point specifically to the following
language:
As [Plaintiffs’] motion for sanctions was premised on the prejudice caused
by the voluminous and supposed late response to the discovery requests,
the additional time that the Court is now granting to prepare a new motion
for certification will cure whatever prejudice resulted from the alleged
discovery abuse.
(Doc. 191, p. 6). Plaintiffs’ argue that because they “could not provide expert reports without
discovery,” they were given carte blanche to “cure whatever prejudice resulted from the alleged
discovery abuse”—meaning Plaintiffs could submit Ulzheimer’s report any time prior to the new
class certification motion (Doc. 251, p. 3).

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Plaintiffs’ interpretation of the March 29, 2010, Memorandum and Order is not
reasonable. The alleged discovery abuse pertained to Allstate’s 850,000 document disclosure
during the second round of discovery. That round of discovery did not concern Robert Johnson
(Doc. 192).

In granting time to cure any prejudice resulting from this second round of

disclosures, the Court found the Motion for Sanctions had become moot. Plaintiffs’ ability to
meet the Court’s expert disclosure deadline relative to Robert Johnson was unaffected. Any
reading of the Court’s language to mean all deadlines were extended, including those unaffected
by alleged discovery abuse, would not be a reasonable one.
Instead, Plaintiffs should have known the Court would strictly stand by its July
28, 2009, deadline. The Court has previously reminded the parties that it strictly adheres to its
deadlines: “Counsel practicing before this Court know from personal experience, as well as the
Court’s website, that the Court sets specific, not presumptive trial dates” (Doc. 87). As Allstate
identifies, whenever the Court has extended deadlines it has done so expressly and without
confusion (see e.g. Docs. 75 and 87). In light of the Court’s policy to use a “firm hand” in
“adhering to the deadlines established,” Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d
843, 851-852 (7th Cir. 2002), Plaintiffs’ should have known that their failure to meet the July 28,
2009, expert disclosure deadline would be fatal to Mr. Ulzheimer’s opinions.
Leave to amend the complaint was not granted in order for Plaintiffs to cure their
failure to timely disclose and expert (see Doc. 191, p. 4). Consequently, when the Court allowed
Plaintiffs an opportunity to file an amended motion for class certification the perceived discovery
abuse was cured, thereby obviating the need for sanctions or a revised schedule (see Doc. 191, p.
6). Thus, the Court’s rulings regarding class certification and sanctions are consistent.

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d. Other Grounds for Denying Plaintiffs’ Motion to Certify Class
In the September 29, 2010, Memorandum and Order (Doc. 238), aside from
denying Plaintiffs’ Motion to Certify Class on the grounds that the named plaintiffs did not
adequately represent their putative classes, the Court also held that Plaintiffs’ proposed classes
did not satisfy the requirements of either Rule 23(b)(2) or (3). Rule 23(b)(2) requires that
“injunctive or declaratory relief be the predominant remedy requested for the class members[,]”
Doe v. Guardian Life Ins. Co. of Am., 145 F.R.D. 466, 477 (N.D.Ill. 1992), or in other words that
“damages are only ‘incidental,’” to the relief sought. In re Allstate Ins. Co., 400 F.3d 505, 507
(7th Cir. 2005). In the September 29, 2010, Memorandum and Order, the Court found that
damages here were not incidental, and so this case cannot proceed under Rule 23(b)(2) (Doc.
238, pp. 16-17). Plaintiffs do not challenge this specific determination.
The Court also found that Plaintiffs failed to meet the requirements of Rule 23(b)(3)
(Doc. 238, pp. 18-19). This rule “requires that ‘the questions of law or fact common to the
members of the class predominate over any questions affecting only individual members, and
that a class action is superior to other available methods for the fair and efficient adjudication of
the controversy.’” Pella Corp. v. Salzman, 606 F.3d 391, 393 (7th Cir. 2010) (quoting Fed. R.
Civ. P. 23(b)(3)). In its Memorandum and Order, the Court held that “ascertaining the members
of either the nationwide class or the subclasses would be time consuming and a 23(b)(3) class . . .
is not necessarily better than individual adjudication,” and that Plaintiffs failed to demonstrate
that their class definitions would be manageable (Doc. 238, p. 18). Accordingly, the Court found
that Plaintiffs’ could not proceed under Rule 23(b)(3).
determination.

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Plaintiffs do not challenge this

Plaintiffs’ Motion to Certify Class has failed to satisfy the requirements of either Rule
23(b)(2) or (3).

Whether the Court erred in failing to consider Mr. Ulzheimer’s affidavit is

independent of these two grounds. Therefore, the Court’s findings on Plaintiffs’ Motion to
Certify cannot be reversed even if the Court erred with respect to Ulzheimer’s affidavit.
e. Equity does Not Require Vacating the Court’s Ruling on Plaintiffs’
Motion to Certify Class
Lastly, Plaintiffs argue that, due to Allstate’s discovery abuses, equity requires the
Court to vacate its ruling on Plaintiffs’ Motion to Certify the Class. As previously discussed, any
alleged discovery abuse concerns Allstate’s second round of disclosures, which did not concern
Robert Johnson or impact Ulzheimer’s opinion (Doc. 192). Therefore, any discovery abuse
could not have affected Plaintiffs’ ability to disclose an expert to give an opinion about Robert
Johnson’s damages before the Court’s deadline. Aside from declining to accept Mr. Ulzheimer’s
affidavit, and then finding that Plaintiffs do not adequately represent their class, the Court denied
Plaintiffs’ motion on the grounds that Plaintiffs would not qualify for class action under either
Rule 23(b)(2) as an equitable class, or 23(b)(3) due to the class being unmanageable (Doc. 238
pp. 15-19). Therefore, equity does not require the Court to vacate its ruling.
Insofar as Plaintiffs ask that the undersigned Judge “clarify” that Plaintiffs may
resubmit a motion for class certification to Judge Williams, any such decision is for Judge
Williams to decide, upon a proper motion.

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5. Conclusion
In light of the foregoing, Plaintiffs’ Motion for Clarification (Doc. 251) is DENIED in all
respects. Plaintiffs have failed to highlight a manifest error of law or fact that would warrant
reconsideration and a change of the Court’s prior rulings.
IT IS SO ORDERED
DATED: August 9, 2011
s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

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