Opinion
No. 00 Civ. 8330 (RJH)(KNF).
July 13, 2004
Memorandum Opinion and Order
Plaintiffs brought this action on behalf of themselves and similarly situated African-Americans against Ford Motor Credit Company ("Ford") alleging racial discrimination under the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq., ("ECOA"). Presently before the Court are plaintiffs' motions for class certification and for an evidentiary hearing on class certification. Nine additional individuals have also filed a motion to intervene as plaintiffs. For the following reasons, the motion to intervene is granted; the motions for class certification and for an evidentiary hearing are denied without prejudice.
BACKGROUND
This putative class action has a long history. The matter was initiated on October 31, 2000, and originally assigned to the Honorable Lawrence M. McKenna, United States District Court for the Southern District of New York. On December 29, 2000, defendant Ford Motor Credit Company ("Ford") moved for (and was ultimately granted) leave to file a motion to dismiss of up to 50 pages in length. Since then, virtually every briefing in this action has included a request for a sur-reply or a page-limit extension or both. The lengthened briefing has also been accompanied by two judicial reassignments — first to the Honorable Lewis A. Kaplan, United States District Court for the Southern District of New York, on September 23, 2003, and then to this Court on November 6, 2003 — and by protracted discovery, with the class discovery completion date extended five times.
On January 9, 2004, plaintiffs moved for class certification. Ford opposes class certification on the grounds that, inter alia, the named plaintiffs are not adequate class representatives. ( See Mem. in Opp'n to Pls.' Mot. for Class Certification at 11-16.) Plaintiffs contest this assertion, see Pls.' Reply Mem. of Law in Further Supp. of their Mot. for Class Certification at 12-14; however, nine additional individuals moved to intervene as plaintiffs and putative class representatives on March 17, 2004.
Although the motion to intervene was filed one day after plaintiffs had filed their reply brief in their motion for class certification, the reply brief was not the last word on class certification. On March 30, 2004, Ford moved for (and was granted) leave to file a sur-reply to plaintiffs' motion for class certification. Then, on June 7, 2004, plaintiffs moved for an evidentiary hearing on their motion for class certification. On June 14, 2004, plaintiffs filed "supplemental authority" in further support of their motion for class certification. Ford duly responded to both of these briefs. The last document the Court received regarding class certification was a reply memorandum in further support of plaintiff's motion for an evidentiary hearing, filed July 1, 2004. Thus, the class action issues are fully briefed and are ripe for determination but for the impact of the pending motion to intervene.
DISCUSSION
Subpart (b) of Rule 24 of the Federal Rules of Civil Procedure allows parties to intervene in an action "when an applicant's claim or defense and the main action have a question of law or fact in common." Fed.R.Civ.P. 24(b). Though a court has discretion in deciding whether to allow "permissive" intervention, the court must "consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Id.
Ford does not dispute that the proposed plaintiffs have a question of law or fact in common with the current plaintiffs. Rather, Ford argues that "[a]llowing intervention at this late date . . . would essentially restart the case from plaintiffs' side, and the burden of this `do-over' would fall almost entirely on [Ford]." (Mem. in Opp'n to Pls.' Mot. to Intervene at 5 (hereinafter "Intervene Opp'n").) Ford also argues that plaintiffs' delay is inexcusable because the alleged inadequacy of the currently proposed class representatives has been known "to Plaintiffs' counsel since September 2002, at the latest." ( Id. at 9.)
Ford also argues that plaintiffs' motion is defective and should be denied because the motion is unaccompanied by a proposed pleading, as mandated by Rule 24(c). ( See Intervene Opp'n at 3-4.) However, plaintiffs cure this defect in their reply brief. (See Pls.' Reply Mem. of Law, Ex. 7.)
These arguments are not without merit. For whatever reason, this case has proceeded tortuously. Indeed, the Second Circuit has already noted "the normal utility of early decision of a motion for class certification" in this case. Jones v. Ford Motor Credit Co., 358 F.3d 205, 207 (2d. Cir. 2004) (reversing decision dismissing counterclaims because "discretion under subsection 1367(c) should not be exercised in this case until a ruling on the Plaintiffs' motion for class certification"). Allowing the proposed plaintiffs to intervene would certainly cause some delay in advancing the litigation and would burden Ford with some additional and unexpected discovery. Furthermore, the Court is concerned that plaintiffs have proposed the additional plaintiffs at the eleventh hour.
However, at this stage of the litigation, the Court must decide the most efficient way to move this matter forward, including the most efficient way to address the related class certification motion. Given Ford's arguments regarding the adequacy of the presently named purported class representatives, the Court finds that efficiency is best served by allowing intervention despite the immediate delay and burden to Ford. See, e.g., Bronson v. Crestwood Lake Section 1 Holding Corp., No. 89 Civ. 5386, 1990 WL 29366, at *2 (S.D.N.Y. Mar. 9, 1990) (allowing intervention and deciding to "consider the pending motion for class certification after the parties have submitted new briefs which reflect [new plaintiff's] substitution as the named plaintiff"). Cf. Clarkson v. Coughlin, 783 F. Supp. 789, 795 (S.D.N.Y. 1992) ("From the time a class action is filed until the time a final determination pursuant to Rule 23 is made, the action is treated if the class existed for purposed of mootness. This provides unnamed members of the plaintiff class an opportunity to intervene in the action and to pursue their claims.").
The Court will re-open class discovery until September 15, 2004, for the limited purpose of allowing Ford to take discovery as to the newly named plaintiffs. The Court finds that while this discovery will cause some delay, such delay is neither undue nor lengthy. Indeed, in the context of this suit, the brief delay and narrow additional discovery is not sufficiently prejudicial to warrant denial of the motion for permissive intervention. The Court is also heartened that Ford was able to depose the three currently named plaintiffs with little burden on the same day and expects that the additional discovery will proceed with similar efficiency. The additional discovery might even streamline, and thereby quicken, the litigation by removing the issue of adequacy of representation from the class certification dispute.
CONCLUSION
For the foregoing reasons, the motion to intervene [96-1] is GRANTED; the motions for class certification [89-1] and for an evidentiary hearing [108-1] are DENIED without prejudice.
Class discovery is hereby re-opened through September 15, 2004, for the limited purpose of allowing defendant to take discovery as to the newly named plaintiffs.
Plaintiffs may renew their motions for class certification and for an evidentiary hearing by September 22, 2004. The Court will deem the previously-filed motion papers to apply to the renewed motion and will allow plaintiffs to submit a single supplemental memorandum, not to exceed 15 pages (exclusive of possible exhibits), addressing the adequacy of the intervening named plaintiffs. Defendant shall oppose plaintiffs' renewed motions, if any, by September 29, 2004. The Court will deem the previously-filed opposition papers to apply to the renewed motions and will allow defendant to submit a single supplemental memorandum, not to exceed 15 pages (exclusive of possible exhibits), addressing the adequacy of the intervening named plaintiffs. No reply or sur-reply will be permitted. In anticipation of the foregoing, the Court has reserved October 7, 2004, at 10:00 a.m. for an evidentiary hearing on class certification.
SO ORDERED.