United States District Court, N.D. Indiana, Fort Wayne Division
OPAL MILLMAN, ERIC POWELL, and LAURY POWELL, on behalf of themselves and all others similarly situated, Plaintiffs,
UNITED TECHNOLOGIES CORPORATION, LEAR CORPORATION EEDS AND INTERIORS, as successor to United Technologies automotive, Inc., ANDREWS DAIRY STORE, INC., L.D. WILLIAMS, INC., CP PRODUCT, LLC successor to Preferred Technical Group, Inc., and LDW DEVELOPMENT, LLC, Defendants.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE.
matter is before the Court on the Plaintiffs' Motion to
Amend/Correct their Motion to Certify Class, and various
responses and sur-replies [ECF Nos. 223, 224, 228, 230, and
234]. For the reasons set forth below, the Plaintiffs'
Motion is taken under advisement.
18, 2018, the Plaintiffs filed their Motion for Class
Certification [ECF No. 214]. On July 18, 2018, the Plaintiffs
filed a Notice containing an additional case from the Sixth
Circuit [ECF No. 222]. On August 15, 2018, Judge Jon E.
Deguilio issued an opinion in Hostetler denying
class certification in a very similar case. See Hostetler
et al. v. Johnson Controls Inc., et al., Case No.
3:15-cv-226, ECF No. 343. As the Hostetler case
involved the same Plaintiffs' and Defendants'
counsel, and very similar issues, the Plaintiffs in this
matter filed a Motion to Amend/Correct their Motion to
Certify Class [ECF No. 223]. Some of the Defendants,
specifically United Technologies Corp., CP Product LLC, and
Lear Corp. Eeds and Interiors, filed a Motion in Opposition
[ECF No. 224, 225] to the Plaintiffs' Motion to Amend;
the Plaintiffs replied [ECF No. 228].
September 21, 2018, additional Defendants, specifically L.D.
Williams, Inc., and LDW Development LLC (“LDW
Defendants”) filed a “Notice of Joinder”
[ECF No. 230]. The Plaintiffs moved to strike, or in the
alternative, for permission to file a sur-reply to address
the additional arguments raised in the Notice of Joinder [ECF
No. 231]. The LDW Defendants responded [ECF No. 232], and the
Plaintiffs replied [ECF No. 233]. The Court denied the
Plaintiffs' Motion to Strike but granted them leave to
file a sur-reply [ECF No. 234], which the Plaintiffs filed on
October 16, 2018 [ECF No. 236]. Thus, the extensive briefing
on the Plaintiffs' Motion to Amend is complete.
The Parties' Arguments
Plaintiffs' Motion for Class Certification proposed eight
issues for potential certification. The Motion to Amend
suggests no changes to two issues, a minor
change to two others, significant changes related
to the phrasing of three more, and finally splitting one
issue, whether the Defendants acted with reckless
indifference, into two issues, whether the Defendants
negligently failed to investigate and whether it was
foreseeable to the Defendants that their handling of the
chemicals in question could cause contamination. See
generally Pls.' Mot. to Amend, Ex. 3, “Redline
Version of Rule 23(c)(4) Issues, ” ECF No. 223-3. The
Plaintiffs emphasize that they do not seek to alter their
Memorandum supporting their Motion for Class Certification;
the Plaintiffs specifically state that “no additional
briefing is proposed.” Pls.' Mot. to
Amend, ¶ 9.
the Defendants object to the proposed
amendments. Specifically, the Defendants argue that
(1) the deadline for the Plaintiffs' proposed class
issues is long past, and (2) the Defendants would be
prejudiced by the Plaintiffs' proposed amendments. For
the first issue, the Defendants rely primarily on Chapman
v. First Index, Inc., 796 F.3d 783 (7th Cir. 2015). For
the second, the Defendants state that their litigation
strategy would have changed; specifically, that they would
have directed additional fact discovery towards the
Plaintiffs on a variety of issues and would have sought
additional expert testimony to address the issues the
Plaintiffs now raise. See generally Dfs.' Mot. in
Opp., pp. 10-19.
Plaintiffs respond that, generally, class definitions can be
altered well into class litigation; as they seek only to
change the proposed issues and not the proposed class
definition, the Defendants should not be prejudiced by the
change. Additionally, the Plaintiffs argue that the proposed
new issues are not new, but are instead a
“narrower” restating of the previously defined
issues. See generally Pls.' Reply in Supp.
Specifically, the Plaintiffs argue that the two new issues,
governing negligence and foreseeability, were
“subsumed” into the issue governing reckless
Notice of Joinder filed by the LDW Defendants primarily
attacks the Plaintiffs' “subsumed” argument,
and the reframing of the amended, proposed issue 6 around the
Defendants' actions rather than the
“potential” for vapor intrusion. See
generally Notice of Joinder. The Plaintiffs'
sur-reply responds to this attack and points out that the LDW
Defendants “have not identified any additional
discovery they would need to take to adequately respond to
the Plaintiffs' Amended Motion.” See Pls.'
Sur-Reply, p. 5.
Amending Issues for Class Certification
Civ. P. 23(c)(1)(A) provides that, “[a]t an early
practicable time after a person sues or is sued as a class
representative, the court must determine by order
whether to certify the action as a class action”
(emphasis added). However, “deciding whether to certify
a class can take a long time, ” and while the Rule
“requires that the decision be made at ‘an early
practicable time, '” “early is often not
practicable.” Thomas v. UBS AG, 706 F.3d 846,
849 (7th Cir. 2013). Chapman, relied on by the
Defendants, is not directly on point. Chapman
involved a case that had continued for four and a half years,
and the Plaintiff wanted to change the definition of the
class itself rather than issues affecting the class. See
Chapman, 796 F.3d at 784-85. Therefore, while the
proposed amendment comes after the deadline to file the
motion for class certification, a deadline which had indeed
been extended, its timing alone does not warrant denying the
Motion to Amend.
prejudice to the Defendants, however, might warrant denying
the Plaintiff's Motion. The Defendants claim that they
would be prejudiced by the amendments. However, the
Defendants do not offer specifics. For example, although the
Defendants, in reference to the third proposed new issue, say
that they “would have directed fact discovery to
Plaintiffs concerning their theory of ‘foreseeability,
'” and that “Defendants also would have lined
up experts to address variations in the
‘foreseeability' analysis during the class period,
” much of their discussion focuses on the length of
time the Plaintiffs' proposed class period runs, and the
geographic area it covers. Defs.' Mot. in Opp.,
p. 14. The ...