Just Us Realtors v. Nudge LLC et al

Filing 46

MEMORANDUM DECISION AND ORDER granting 33 Motion for Extension of Time to file a motion for class certification. Signed by Magistrate Judge Brooke C. Wells on 8/15/18 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
JUST US REALTORS, LLC, on Behalf of
Itself and All Others Similarly Situated,
Plaintiff,

MEMORANDUM DECISION AND ORDER
GRANTING MOTION FOR EXTENSION
OF TIME TO FILE MOTION FOR
CERTIFICATION

v.
Case No. 2:18-cv-128 TC
NUDGE, LLC, BUYPD, LLC, INCOME
PROPRTY USA, LLC et al.,
Defendants.

District Judge Tena Campbell
Magistrate Judge Brooke Wells

This matter is referred to the undersigned in accordance with 28 U.S.C. § 636(b)(1)(A). 1
Plaintiff seeks an extension of time to file a motion for class certification. 2 Multiple Defendants
oppose the motion and join in the opposition filed by Defendants American Legal & Escrow,
LLC, Invictus Law, LLC and Blair Jackson. 3 As set forth below the court will GRANT the
motion.
This case is a proposed class action brought on behalf of individuals and entities that
were offered to purchase real estate presented by Defendants at “Buying Summit” events. 4
Plaintiff alleges Defendants did not own certain “turnkey assets” that were offered for sale at
these events and Defendants engaged in a conspiracy to fraudulently sell the properties. Plaintiff
seeks an order extending the 90-day time-period following service of the Complaint to file a
motion seeking class certification. Plaintiff argues the extension is necessary because there are

1

ECF No. 42.

2

Motion, ECF No. 33.

3

See ECF No. 34, ECF No. 35, ECF No. 36 and ECF No. 39.

4

Complaint ¶ 1, ECF No. 2.

efficiencies that will be gained to defer class certification until after Defendants’ Rule 12(b)
motions to dismiss are decided.
Defendants oppose Plaintiff’s motion arguing Plaintiff is basically seeking to rescind
Local Rule 23-1(d), and the Federal Rule equivalent found in Rule 23, making them nonexistent. Plaintiff cannot seek class certification “’at their own leisure and when it is most
convenient for them.’” 5 Further, there are important reasons for deciding the class question
earlier including the need to define the scope of discovery and prevent a “large-scale fishing
expedition.” 6 As such, Defendants propose any extension be limited to “60 additional days.” 7
Rule 23(c)(1)(A) of the Federal Rules of Civil Procedure requires the court determine
whether to certify an action as a class action “[a]t an early practicable time” after a claim is
filed. 8 The Tenth Circuit has not specifically articulated the exact criteria for what constitutes an
“early practicable time,” but it has stated that “[i]n practice, however, this decision may take
time.” 9 Thus, there may be valid reasons that justify the deferral of deciding whether or not to
certify a class.
Local Rule 23-1(d), which is the counterpart to the Federal Rule, provides, in relevant
part:
Unless the court otherwise orders, the proponent of a class shall file a motion for
certification that the action is maintainable as a class action within ninety (90)
days after service of a pleading purporting to commence a class action . . . . 10
5

Op. p. 2, quoting Timothy v. Aqua Finance, Inc., No. 2:06-cv-921, 2007 WL 4299808, *5 (D. Utah Dec. 7, 2007)
(unpublished).
6

Op. p. 3.

7

Id. p. 4.

8

Fed. R. Civ. P. 23(c)(1)(A).

9

State Farm Mut. Auto. Ins. Co. v. Boellstorff, 540 F.3d 1223, 2008 WL 4183339, *9 (10th Cir.2008). See also
Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1785.3 (3d ed. 2005) (“The
reference to ‘at an early practicable time’ recognizes that there may be many valid reasons justifying the deferral of
the initial certification decision....”).

10

DUCivR 23-1(d).

2

Based on a plain reading of the Local Rule, the court finds there is flexibility in postponing
whether to certify a class.
This case is not analogous to Timothy v. Aqua Finance, Inc., 11 which Defendants
cite in support of their arguments against an extension. In Timothy, the Plaintiffs
“provided no explanation for their failure to attempt to conduct the necessary discovery at
the earliest possible time.” 12 Rather, they served class-related discovery requests near the
end of discovery. Here, there is not the same delay by Plaintiff. The court, therefore
finds the reasoning in Timothy unpersuasive.
In Trevizo v. Adams, 13 the Tenth Circuit stated that the onus is on the court to
decide whether class certification is appropriate “irrespective of whether the parties have
requested class action status.” 14 Thus, the court must take an active role in deciding
whether class certification is appropriate before such a determination is impracticable.
This case is in its relative infancy and there are four motions to dismiss currently
pending. Efficiencies will be gained by postponing the class certification decision until
after the motions to dismiss are decided. There is no need for an open-ended date that
Defendants argue eviscerates the Rules. Rather, a 90-day extension in accordance with
Plaintiff’s motion is warranted and will provide some definiteness to deciding the class
certification issue.

11

2007 WL 4299808.

12

Id. at *5.

13

455 F.3d 1155, 1161 (10th Cir. 2006).

14

Id. at

3

CONCLUSION
It is therefore
ORDERED that Plaintiff’s Motion for Extension of Time to File Motion for
Certification is GRANTED.
DATED this 15 August 2018.

Brooke C. Wells
United States Magistrate Judge

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