Johansson et al v. Nelnet, Inc. et al

Filing 172

ORDER - The Magistrate Judge's Findings and Recommendation (filing 166 ) are adopted. The plaintiffs' objection (filing 167 ) is overruled. The defendants' Motion to Strike the plaintiffs' class action allegations and Motion for Class Certification (filing 150 ) is granted. Ordered by Judge John M. Gerrard. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANDREW JOHANSSON, et al., on
behalf of themselves and the Class of
Members described herein,
20-CV-3069
Plaintiffs,
vs.

ORDER

NELNET, INC., a Nebraska
Corporation, et al.,
Defendants.
This matter is before the Court on the plaintiffs' objection (filing 167) to
the

Magistrate

Judge's

findings

and

recommendation

(filing

166),

recommending that the Court grant the defendants' Motion to Strike the
plaintiffs' class action allegations and Motion for Class Certification (filing
150). The Court has conducted a de novo review of the Magistrate Judge's
proposed findings and recommendation, see 28 U.S.C. § 636(b)(1), and will
adopt them.
While the Magistrate Judge thoroughly addressed the relevant issues,
the Court will briefly address the alternative modified class definition that the
plaintiffs raised for the first time in their objection to the Magistrate Judge's
findings and recommendation. See filing 168 at 14. The Court agrees with the
defendants that since this alternative definition does not change the substance
of the modified class definition, filing 168 at 14, it fails to adequately address
the issues outlined by the Magistrate Judge, as it still expands the size and
scope of the putative class and advances a theory of liability that is not
foreseeable based on the allegations in the operative complaint. See filing 166

at 9-12, 14-18; filing 169 at 27-28. In other words, the plaintiffs' alternative
modified definition does not bring the Court any closer to identifying a
workable class definition that is supported by the operative complaint and
would not prejudice the defendants.
Additionally, the Court agrees that the plaintiffs have abandoned the
class allegations in their original complaint. See filing 140 at 16-19. The class
allegations in the plaintiffs' complaint were centered on a theory of liability
that Nelnet improperly processed IDR plan renewal applications that were
properly and timely submitted. Filing 1 at 19-20. But the plaintiffs
acknowledged that these allegations created "issues of individualized proof."
See filing 166 at 16-18. And since the plaintiffs have indicated they are unable
to conceive of a viable class definition that tracks these allegations and
overcomes the issue of individualized proof, the Court agrees these allegations
have been abandoned. See filing 140 at 16-19.
Having concluded that the plaintiffs' modified and alternative modified
class definitions offered in support of their Motion for Class Certification are
unsupported by the operative complaint, and that the plaintiffs have
abandoned their original class allegations outlined in the operative complaint,
the Court will adopt the Magistrate Judge's findings and recommendation.
Accordingly,
IT IS ORDERED:
1.

The Magistrate Judge's Findings and Recommendation
(filing 166) are adopted.

2.

The plaintiffs' objection (filing 167) is overruled.

-2-

3.

The defendants' Motion to Strike the plaintiffs' class action
allegations and Motion for Class Certification (filing 150) is
granted.

Dated this 6th day of October, 2022.
BY THE COURT:

John M. Gerrard
United States District Judge

-3-