Leeman et al v. National Hockey League et al

Filing 85

MEMORANDUM OPINION AND ORDER denying without prejudice (874) Motion for Leave to File for Summary Judgment in case 0:14-md-02551-SRN-BRT (Written Opinion) Signed by Judge Susan Richard Nelson on 07/24/2017. Associated Cases: 0:14-md-02551-SRN-BRT, 0:14-cv-03233-SRN-BRT (SMD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

In Re: National Hockey League
Players’ Concussion Injury
Litigation

MDL No. 14-2551 (SRN/BRT)

MEMORANDUM OPINION
AND ORDER

This Document Relates to All Actions

Charles S. Zimmerman, Brian Gudmundson, David Cialkowski, and Wm Dane DeKrey,
Zimmerman Reed, PLLP, 1100 IDS Center, 80 South Eighth Street, Minneapolis,
Minnesota 55402; Bradley C. Buhrow and Hart L. Robinovitch, Zimmerman Reed, PLLP,
14646 North Kierland Boulevard, Suite 145, Scottsdale, Arizona 85254, for Plaintiffs
Stephen G. Grygiel, Steven D. Silverman, and William Sinclair, Silverman, Thompson,
Slutkin & White, LLC, 201 North Charles Street, Suite 2600, Baltimore, Maryland 21201,
for Plaintiffs
Jeffrey D. Bores, Bryan L. Bleichner, and Christopher P. Renz, Chestnut Cambronne PA,
17 Washington Avenue North, Suite 300, Minneapolis, Minnesota 55401, for Plaintiffs
Janine D. Arno, Kathleen L. Douglas, Stuart A. Davidson, and Mark J. Dearman, Robbins,
Geller, Rudman & Dowd, LLP, 120 East Palmetto Park Road, Boca Raton, Florida 33432,
and Leonard B. Simon, Robbins, Geller, Rudman & Dowd, LLP, 655 West Broadway,
Suite 1900, San Diego, California 92101, for Plaintiffs
Lewis A. Remele, Jr., Jeffrey D. Klobucar, and J. Scott Andresen, Bassford Remele, 33
South Sixth Street, Minneapolis, Minnesota 55402, for Plaintiffs
Thomas Demetrio, William T. Gibbs, and Katelyn I. Geoffrion, Corboy & Demetrio, 33
North Dearborn Street, Chicago, Illinois 60602, for Plaintiffs
Brian D. Penny, Goldman, Scarlato & Karon PC, 101 East Lancaster Avenue, Suite 204,
Wayne, Pennsylvania 19087, and Mark S. Goldman, Goldman, Scarlato & Karon, PC, 101
West Elm Street, Suite 360, Conshohocken, Pennsylvania 19428, for Plaintiffs
Vincent J. Esades and James W. Anderson, Heins Mills & Olson, PLC, 310 Clifton
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Avenue, Minneapolis, Minnesota 55403, for Plaintiffs
David I. Levine, The Levine Law Firm P.C., 1804 Intracoastal Drive, Fort Lauderdale,
Florida 33305, for Plaintiffs
Daniel E. Gustafson, David A. Goodwin, and Joshua J. Rissman, Gustafson Gluek, PLLC,
120 South Sixth Street, Suite 2600, Minneapolis, Minnesota 55402, for Plaintiffs
Thomas J. Byrne, Namanny, Byrne, & Owens, APC, 2 South Pointe Drive, Lake Forest,
California 92630, for Plaintiffs
Michael R. Cashman and Richard M. Hagstrom, Hellmuth & Johnson, PLLC, 8050 West
78th Street, Edina, Minnesota 55439, for Plaintiffs
Robert K. Shelquist, Lockridge, Grindal, Nauen, PLLP, 100 Washington Avenue South,
Suite 2200, Minneapolis, Minnesota 55401, for Plaintiffs
Shawn M. Raiter, Larson King, LLP, 30 East Seventh Street, Suite 2800, St. Paul,
Minnesota 55101, for Plaintiffs
Charles J. LaDuca, Cuneo, Gilbert & LaDuca, LLP, 8120 Woodmont Avenue, Suite 810,
Bethesda, Maryland 20814, for Plaintiffs
Daniel J. Connolly, Joseph M. Price, Linda S. Svitak, and Aaron D. Van Oort, Faegre
Baker Daniels, LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN
55402; John H. Beisner, Jessica D. Miller, and Geoffrey M. Wyatt, Skadden, Arps, Slate,
Meagher & Flom LLP, 1440 New York Avenue, Northwest, Washington, D.C. 200052111; Shepard Goldfein, James A. Keyte, Matthew M. Martino, and Michael H. Menitove,
Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York
10036; Matthew Stein, Skadden, Arps, Slate, Meagher & Flom, LLP, 500 Boylston Street,
Boston, Massachusetts 02116; Joseph Baumgarten and Adam M. Lupion, Proskauer Rose
LLP, Eleven Times Square, New York, New York 10036, for Defendant
_________________________________________________________________ _______

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SUSAN RICHARD NELSON, United States District Court Judge
This matter is before the Court on Defendant’s Motion for Leave to File for
Summary Judgment [Doc. No. 874]. For the reasons set forth herein, Defendant’s motion
is denied without prejudice.
I.

BACKGROUND
In December 2016, Plaintiffs moved for class certification under Federal Rule of

Civil Procedure 23 [Doc. No. 638]. In April 2017, when the National Hockey League
(“NHL”) filed its memorandum and exhibits in opposition to the class certification motion
in this MDL, it also filed a summary judgment motion in Leeman v. NHL, 14-CV-3233
(SRN/BRT) [Doc. No. 62], seeking judgment against Plaintiffs Leeman and Nicholls, two
of the six proposed MDL class representatives. Specifically, the NHL presented argument
concerning the applicable statute of limitations and noticed the hearing for the same date
as the class certification oral argument in the MDL. (Notice of Hr’g [Doc. No. 63].)
Plaintiffs objected to Defendant’s summary judgment filing, (Pls.’ Letter of 5/5/17 [Doc.
No. 837]), arguing that the NHL should have raised the statute of limitations in its
adequacy argument in opposition to Plaintiffs’ class certification motion. (See Teleconf.
Tr. at 12 [Doc. No. 843].) By filing a separate motion, Plaintiffs argued, the NHL
circumvented the Court’s class certification page limitations, which had already been
extended. (Id. at 12-13.) Following a May 8, 2017 teleconference with the parties, and
further discussion at the May 12, 2017 status conference, the Court directed Defendant to
move for leave to bring a motion for summary judgment, observing that the procedures
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applicable to motion practice in this District had not been followed. (See 5/12/17 Hr’g Tr.
at 25; see D. Minn. L.R. 7.1(c).)
In seeking leave to move for summary judgment, the NHL argues that it is proper
under these circumstances to seek dispositive relief concerning the claims of Plaintiffs
Leeman and Nicholls prior to the Court ruling on class certification. (Def.’s Mem. Supp.
Mot. for Leave at 6 [Doc. No. 876].)1 The League contends that unlike other issues on the
merits, the applicability of the statute of limitations is distinct, and discovery on this issue
is complete. (Id. at 4.) Thus, the NHL contends that it would be efficient for the Court to
rule on this motion now, rather than later. (Id. at 5.) Further, it argues that the statute-oflimitations arguments concerning Leeman and Nicholls are unrelated to their adequacy as
class representatives. (Id. at 9.)
II.

DISCUSSION
Under Rule 56, a party may move for summary judgment, identifying each claim or

defense, or portion thereof, on which summary judgment is sought, but the rule is silent as
to the number of summary judgment motions that a party may file, or the timing of such
motions. Fed. R. Civ. P. 56 (a). Rule 23, applicable to class actions, states that decisions
on class certification are to be made “‘at an early practicable time.’” Fed. R. Civ. P.
23(c)(1). Courts also possess administrative and procedural authority over the course of
class action proceedings. Fed. R. Civ. P. 23(d)(1)(A); 23(d)(1)(E). In addition to the

1

The Court cites to the page numbers as they appear in Defendant’s
Memorandum.
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administrative authority conferred by Rule 23(d), courts maintain the inherent authority
“to manage their own affairs so as to achieve the orderly and expeditious disposition of
cases.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (quoting Link v. Wabash Ry.
Co., 370 U.S. 626, 630-31 (1962)).
As to the sequence and timing in which courts consider motions for summary
judgment and for certification in class actions, a certification decision is usually
“‘practicable’ before the case is ripe for summary judgment. . . .” Curtin v. United
Airlines, Inc., 275 F.3d 88, 92 (2001); see also Newberg on Class Actions, § 7:10 (5th ed.)
(“Typically summary judgment motions come only at the close of the discovery process,
which, generally speaking, is not ‘an early practicable time’ in the lawsuit, implying that
class certification motions ought to precede summary judgment motions.”). Thus, as a
“general rule,” courts have traditionally considered class certification prior to addressing
dispositive motions. Hartley v. Suburban Radiologic Consultants, Ltd., 295 F.R.D. 357,
367 (D. Minn. 2013) (quoting Hyman v. First Union Corp., 982 F. Supp. 8, 11 (D. D. C.
1997)). One reason for doing so is because merits-based decisions that precede class
certification have no binding effect on unnamed class members. Id. (citing Smith v. Bayer
Corp., 564 U.S. 299, 313-14 (2011)). As with many rules, however, there are exceptions.
The 2003 Advisory Committee Notes indicate that ruling on summary judgment prior to
class certification is permissible, see Fed. R. Civ. P. 23(c)(1)(A) 2003 Amendments; see
also Toben v. Bridgestone Retail Operations, LLC, 751 F.3d 888, 896 (8th Cir. 2014),
particularly where doing so “would facilitate efficient resolution of the case.” Newberg, §
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7:10. For example, this Court has ruled on summary judgment prior to class certification
where doing so disposed of the entire case, see Nelson v. Am. Family Mut. Ins. Co., 13cv-607 (SRN/SER), 2017 WL 2773522, at *1 (D. Minn. June 26, 2017), or narrowed the
issues in the case. See Hartley, 295 F.R.D. at 368. In making this sequencing
determination, courts also consider whether ruling on summary judgment prior to class
certification would potentially prejudice either party. See Curtin, 275 F.3d at 93.
While consideration of class certification prior to summary judgment is permissible,
“federal courts have noted problems with piecemeal consideration of successive motions
for summary judgment.” United States. v. Copar Pumice Co., Civ. No. 09-1201 JP/KBM,
2013 U.S. Dist. LEXIS 197525, at *9 (D. N.M. Sept. 12, 2013) (collecting cases). For
example, “filing summary judgment motions seriatim on one’s own initiative not only
makes the court’s task of shuffling paperwork more complex, but also permits any number
of permutations of the page-limitation rule. . . .” Id. (quoting Cole v. Convergys Customer
Mgt. Grp., Inc., No. 12-3404-SAC, 2013 U.S. Dist. LEXIS 50673, at *2-3 (D. Kan. Apr. 9,
2013)). In addition, the value of summary judgment motion practice would be lessened if
a party attempted to assert one theory in a motion for summary judgment, “and then,
should that theory prove unsound, come back long thereafter and fight on the basis of
some other theory.” Id. (quoting Doherty v. Portland Cmty. Coll., 2000 WL 33200560, at
*3 (D. Ore. Nov. 15, 2000)).
The Court does not ascribe any bad faith or an improper purpose to the NHL’s
efforts to file its contemplated summary judgment motion. The NHL correctly notes that
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their argument is not one of adequacy, it is not designed to evade the Court’s page limits,
and the record is complete on this issue. Nevertheless, the Court finds, in its sound
discretion, that the most appropriate approach here is for summary judgment motions to be
filed on a consolidated basis, after the Court’s consideration of class certification. As
Defendant itself acknowledges, (Def.’s Mem. Supp. Mot. for Leave at 10), a ruling in its
favor on the proposed summary judgment motion would not eliminate Plaintiffs’ class as a
whole, as it would only apply to Leeman and Nicholls. In this proceeding, consolidated
summary judgment motion practice is preferable to a piecemeal approach and minimizes
prejudice to both sides. Defendant may therefore refile its summary judgment motion, at a
later time and as part of a consolidated motion, at which time Plaintiffs will have a full and
fair opportunity to respond.
THEREFORE, IT IS HEREBY ORDERED THAT:
1.

Defendant’s Motion for Leave to File for Summary Judgment [Doc. No.
874] is DENIED WITHOUT PREJUDICE; and

2.

Defendant shall withdraw its Motion for Summary Judgment without
prejudice, filed in Leeman v. NHL, 14-CV-3233 (SRN/BRT) [Doc. No. 62].

Dated: July 24, 2017
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Court Judge

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