Opinion
[Copyrighted Material Omitted]
John A. Stewart-Sotomayor, Arecibo, PR, Joseph Gierbolini, Juris Zone Law Offices P.S.C., Vanessa Saxton-Arroyo, San Juan, PR, for Plaintiff(s)
Monica A. Sanchez-Rivera, Lopez Sanchez & Pirillo, LLC., Carlos R. Baralt-Suarez, Alfredo Fernandez-Martinez, Delgado & Fernandez, Alejandro Garcia-Carballo, Carlos A. Valldejuly-Sastre, O’Neill & Borges, Arlyn Gonzalez-Diaz, Fernando J. Valderrabano-Marina, Cancio, Nadal, Rivera & Diaz, Christian A. Munoz-Lugo, Maria Dolores Trelles-Hernandez, Pietrantoni Mendez & Alvarez LLC, Ramon E. Dapena, Ivan Llado-Rodriguez, Morell Bauza Cartagena & Dapena, LLC, Hector J. Ferrer-Rios, San Juan, PR, Michael Y. Kieval, Weiner Brodsky Kider PC, Mitchel H. Kider, Washington, DC, Coral Del Mar Lopez-Rosario, Alston & Bird, LLC, Los Angeles, CA, Andrew C. Glass, Gregory N. Blase, K & L Gates LLP, Boston, MA, for Defendant(s)
OPINION AND ORDER
DANIEL R. DOMÍNGUEZ, Senior United States District Judge
Pending before Court are: (a) Plaintiffs’ Amended Motion Reiterating Class Certification and Memorandum in Support filed on November 27, 2017, at Docket No. 8 (hereinafter "Plaintiffs’ Amended Motion to Certify Class"); (b) Preliminary Opposition to Amended Motion to Certify Class by Defendants Bayview Loan Servicing LLC and Lakeview Loan Servicing LLC filed on March 5, 2018, at Docket No 45; (c) Defendant Banco Popular of Puerto Rico’s Opposition to Plaintiffs’ Amended Motion Reiterating Class Certification filed on March 22, 2018, at Docket No. 67; and, (d) Defendants James B. Nutter & Company and Federal National Mortgage Association’s Opposition to Plaintiff’s Second Motion for Class Certification filed on March 22, 2018, at Docket No. 68.
For the reasons set forth below, Plaintiffs’ Amended Motion to Certify Class at Docket No. 8 is hereby DENIED, as moot.
The record shows that this case was originally assigned to the Hon. Judge Francisco A. Besosa, and reassigned to the undersigned on March 7, 2018. See Docket entries Nos. 56 and 57.
FACTUAL BACKGROUND
On October 27, 2017, Plaintiffs brought a class action suit on behalf of themselves and class members who allegedly either had been subject to illegitimate foreclosures or sought modifications of payment on their individual mortgage loans through the mortgage services of Defendants. See Docket No. 1. Plaintiffs filed a First Amended Complaint on October 29, 2017, at Docket No. 4. A Second Amended Complaint was filed on November 25, 2017, at Docket No. 7, wherein Plaintiffs alleged: breach of contract, dual tracking, due process violations, robo-signing, predatory lending, and failure to respond to qualified written requests (QWRs). Plaintiffs further reference violations to: the Constitution of the United States and Puerto Rico, Truth in Lending Act (TILA), Real Estate Settlement Procedures Act (RESPA), Home Mortgage Disclosure Act (MHDA), Home Ownership and Equity Protection Act (HOEPA), Equal Credit Opportunity Act (ECOA), Fair and Accurate Credit Transactions Act (FACTA), Home Owners Protection Act (HOPA), Gramm-Leach-Bliley Act (GLBA), Fair Credit Reporting Act (FCRA), Fair Debt Collection Practices Act (FDCPA), Consumer Financial Protection Bureau (CFPB), Dodd-Frank Financial Reform Act (Dodd-Frank Act), Home Affordable Refinance Program (HARP), Home Affordable Modification Program (HAMP), and Puerto Rican civil law.
On November, 27, 2017, Plaintiffs’ filed an Amended Motion to Certify Class and Memorandum in Support at Docket No. 8.
The original Motion to Certify Class was filed on November 23, 2017, at Docket No. 6. On February 5, 2018, the Court found the original Motion to Certify Class as moot at Docket No. 28, as a Second Amended Complaint was filed at Docket No. 7.
Plaintiffs define the class moving this Court to certify as:
All persons in the United States of America or with real state property in the United States of America who have continued to be kicked out of their homes based on false documents and who have been told to stop making their mortgage payments and thus, having their financial situation affected by Defendants’ actions. They have allegations of misconduct in illegal, unlawful, wrongful and negligent origination and qualification, loan process and closing, predatory lending, robo-signing, faulty paperwork, dual tracking, illegal mortgage servicing, illegal foreclosure, among other misconduct. Also, all persons in the United States of America or with real state property in the United States of America whose loans have been serviced by Defendants and all related actions, who have complied with their obligation under a trial loan modification program and have not received a permanent modification pursuant to the loan modification agreement, who have been subjected to Loss Mitigation process at the same time that a foreclosure claim is been filed against them and/or have been subject to an illegal foreclosure and harmed thereby.See
Notwithstanding the above definition, Plaintiffs’ Amended Motion to Certify Class, defines class as a group composed of "more than 100,000 families [that] are facing a foreclosure procedure or are in loss mitigation programs." Docket No. 8 at 19. As opposed to the definition of class members included in Plaintiffs’ Amended Motion to Certify Class, the class members in the Second Amended Complaint are defined as "residents of the Commonwealth of Puerto Rico and/or the United States, with a real estate property located in Puerto Rico." Docket No. 7 at 15.
Generally, the unknown Plaintiffs and the class members they represent are likewise described in very broad terms as any person who has real estate in Puerto Rico and whose real estate is encumbered by a mortgage loan serviced by any of the Defendants in the instant case. Id. Defendants are banks or mortgage loan servicers committed to provide mortgage loans to qualified individuals in Puerto Rico. Id. Unknown Defendants, on the other hand, are any bank, financial institution or mortgage loan servicer devoted to providing mortgage loans to qualified individuals with offices, branches and subsidiaries in Puerto Rico. Id. at 16.
The Court notes that a Third Amended Complaint was wrongfully filed on December 5, 2017 at Docket No. 10, but later substituted with leave of Court on January 18, 2018, at Docket No. 17. Plaintiffs, however, failed to renew their request to certify the class after the filing of the Third Amended Complaint filed at Docket No. 17. Hence, at first glance, Plaintiffs’ Amended Motion to Certify Class filed at Docket No. 8 is moot, as this request was followed by the Third Amended Complaint filed at Docket No. 17. The Court now considers Defendants’ timely oppositions to Plaintiffs’ class certification. The Court’s analysis follows.
LEGAL STANDARDS
FEDERAL RULE OF CIVIL PROCEDURE 23
Federal Rule of Civil Procedure 23, "Rule 23" provides the factors to be met when requesting a Court certification of a class action:
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
(c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses.
(1) Certification Order.
(A) Time to Issue. At 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.
(B) Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g) .
(C) Altering or Amending the Order. An order that grants or denies class certification may be altered or amended before final judgment.
See Fed.R.Civ.P. 23.
The Supreme Court and by extension the district courts, have emphasized that there can be no class action suit without first identifying and certifying the class. See Rivera-Colon v. Torres-Diaz, 252 F.Supp.3d 68, 71 n.1 (D.P.R.2017) (citing Baxter v. Palmigiano, 425 U.S. 308, 310 n.1, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) ). The Supreme Court has also been consistent in holding that "the class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ " (Emphasis ours). (Comcast Corp. v. Behrend, 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979) ). To be part of this exception, and to classify as a class action, a party must therefore meet the requirements set forth in Rule 23. See generally Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).
Rule 23, however, should not be considered a pleading standard, rather, a party must "be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact," a set of claims or defenses, and adequacy of representation. (Emphasis ours). Wal-Mart Stores, Inc. v. Dukes, 564 U.S. at 350, 131 S.Ct. 2541.
The party seeking certification carries the burden of proof in proving that they complied with all the elements of Rule 23. See Comcast, 569 U.S. at 33, 133 S.Ct. 1426; see also P.R. College of Dental Surgeons v. Triple S. Management, 290 F.R.D. 19, 25 (D.P.R. 2013) ("[t]he moving party bears the burden of establishing the elements necessary for class certification"). In contrast to the past where a pleading standard was enough; the United States Court of Appeals for the First Circuit ("First Circuit") now requires evidence, since "[r]eviewing the complaint alone is not normally a suitable method for determining whether a class eventually can be certified." College of Dental Surgeons of P.R. v. Conn. Gen. Life Ins. Co., 585 F.3d 33, 41 (1st Cir. 2009). Henceforth, the District Court of Puerto Rico, via mandate of the College of Dental Surgeons of P.R., 585 F.3d 33, now requires parties "to present evidence, such as affidavits and experts reports, to support their argument in favor of or against certification of a class." In re P.R. Cabotage Antitrust Litigation, 269 F.R.D. 125, 130 (D.P.R. 2010); see also Comcast, 569 U.S. 27, 133 S.Ct. 1426. The Supreme Court has also expressed that "certification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’ " Id. at 350-51, 131 S.Ct. 2541 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) ). The same analytical principles oversee the application of Rule 23(b). See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).
DISCUSSION
CLASS CERTIFICATION
A. Mootness
On August 17, 2018 the Court filed an Opinion and Order on Reconsideration denying Plaintiffs’ reconsideration request. See Gonzalez-Camacho v. Banco Popular de Puerto Rico, 318 F.Supp.3d 461, 506 (D.P.R. 2018). Gonzalez-Camacho is a sister case to the case at bar, and not only both actions share the same causes of action and legal subject matter, but the actions were brought by the same counsel and even share some Plaintiffs and Defendants. The Court incorporates herein the section on Rule 15 of the Federal Rules of Civil Procedure of the Gonzalez-Camacho ’s Opinion and Order on Reconsideration herein for easy reference. See 318 F.Supp.3d at 517. In Gonzalez-Camacho, supra, the Court discussed the procedural requirements and limitations of amending a complaint.
Rule 15(a) provides in its relevant part:
(a) Amendments Before Trial .
(1) Amending as a matter of course . A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it; or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.
On July 16, 2018, the First Circuit decided In re Fustolo, 896 F.3d 76 (1st Cir. 2018), and the applicability of Rule 15(a) and (b) was an important issue of the opinion. The First Circuit held:
The decision whether to grant or deny an amendment [to a complaint] is within the discretion of the trial court, see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), and we review its determinations of implied consent for an abuse of that discretion, Premier Capital, LLC v. Crawford (In re Crawford), 841 F.3d 1, 6 (1st Cir. 2016). This standard is "generally differential," although a "material error of law is invariably an abuse of discretion." Charbono v. Sumski (In re Charbono), 790 F.3d 80, 85 (1st Cir. 2015) (citing Berliner v. Pappalardo (In re Sullivan), 674 F.3d 65, 68 (1st Cir. 2012). 896 F.3d at 83.
...
It is "the defendant’s inalienable right to know in advance the nature of the cause of action being asserted against him," [Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1171 (1st Cir. 1995) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1119 (1st Cir. 1989) ]. 896 F.3d at 84. (Emphasis ours).
See also United States ex rel. D’Agostino v. EV3, Inc., 802 F.3d 188, 193 (1st Cir. 2015) ("We hold, without serious question, that a plaintiff may amend a complaint only once as a matter of course under Rule 15(a)(1).... It follows that the district court did not err in concluding that the relator exhausted his one-time right to amend as a matter of course when he filed his first amended complaint ..."). 318 F.Supp.3d 461, 518.
In the instant case, the first fact to be reviewed by the Court when considering Plaintiffs’ class certification for mootness purposes, is to examine whether Plaintiffs’ amended pleadings were made before, during, or after trial including the post-judgement stage. The short answer is that Plaintiffs’ amendments requests were filed before trial, and some were made without leave of Court, as explained below.
Plaintiffs’ original Complaint was filed on October 27, 2017, at Docket No. 1. On October 29, 2017, that is, 2 days after filing the original complaint, Plaintiffs timely and appropriately filed the First Amended Complaint at Docket No. 4, since no responsive pleading had been filed by any defendant. The First Amended Complaint was timely filed as a matter of right, as provided by Fed.R.Civ.P. 15(a)(1)(A).
On November 25, 2017, Plaintiffs filed a Second Amended Complaint without leave of Court or opposing party’s consent, at Docket No. 7. Rule 15(a)(2) provides for amendments to the complaint "[i]n all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave." On December 6, 2017, the Court granted leave for a Third Amended Complaint originally filed on December 5, 2017, at Docket No. 10, then refiled or substituted with leave of Court on January 18, 2018, at Docket No. 17.
On November 27, 2017, Plaintiffs filed an Amended Motion to Certify Class at Docket No. 8. The Third Amended Complaint followed on January 18, 2018, at Docket No. 17. The record shows, however, that Plaintiffs failed to renew the class certification after the Third Amended Complaint was filed, as provided by Fed.R.Civ.P. 23.
The First Circuit has held that "[a]n amended complaint, once filed, normally supersedes the antecedent complaint... [t]hereafter, the earlier complaint is a dead letter and "no longer performs any function in the case." ConnectU LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008) (citing InterGen N.V. v. Grina, 344 F.3d 134, 145 (1st Cir. 2003); 6 Wright et al., supra § 1476, at 556-57; Kolling v. Am. Power Conversion Corp., 347 F.3d 11, 16 (1st Cir. 2003) ).
Further several District Courts in the District of Columbia, Michigan, New York, Tennessee, among others, have rendered motions resting on original complaints "irrelevant" after filing superseding complaints. See Bancoult v. McNamara, 214 F.R.D. 5 (D.D.C. 2003); Zainea v. Shermeta, Adams & Von Allmen, P.C., No. 1:14-CV-836, 2014 WL 12543875 (W.D. Mich. Aug. 15, 2014); Law v. Stewart, No. 1:09-cv-503, 2010 WL 2998515, at *1 (W.D. Mich. July 23, 2010); Ketron v. Law Offices of Gammons, No. 3:12-cv-516, 2013 WL 4494988, at *1 (E.D. Tenn. Aug. 20, 2013) (slip copy); Hooker v. Greystone Alliance, LLC, No. 13-12369, 2014 WL 1032189, at *2 (E.D. Mich. March 14, 2014) (slip copy) (directing plaintiff to refile new motion to certify class based on allegations in amended complaint); Kiobel v. Royal Dutch Petroleum Co., No. 02-CV-7618 KMW HBP, 2006 WL 7150834 (S.D.N.Y. Feb. 10, 2006) ("general practice upon filing of an amended complaint is to deny any pending class certification motions as moot").
Notwithstanding the above mentioned caselaw, the substance matter of all the amended complaints filed in the instant case did not vary noticeably. The only changes amongst all the amended complaints were additional Plaintiffs.
The Court, however, cannot certify a class when Plaintiffs are still figuring the class membership itself as shown by filing additional amended complaints with the sole purpose of adding Plaintiffs. Further, as held in ConnectU LLC, 522 F.3d 82, 91, any superseding complaint renders motions resting in the original complaint unusable. Consequently, Plaintiffs’ Amended Motion to Certify Class at Docket No. 8 is DENIED as moot.
FEDERAL RULES OF CIVIL PROCEDURE RULE 23 : CLASS ACTION REQUIREMENTS
Numerosity
Plaintiffs’ Amended Motion to Certify Class at Docket No. 8 is not only moot, as further amended complaints followed, but it does not comply with any of the Rule 23 requirements, including Rule 23(a)(1) about numerosity. Fed.R.Civ.P. 23. "Plaintiffs, however, may not rely on speculation regarding the size of the class... they must proffer some evidence of the numbers of members in the purported class, or at least a reasonable estimate". Collazo v. Calderon, 212 F.R.D. 437, 442 (D.P.R. 2002). Plaintiffs limit themselves to state that in Puerto Rico "more than 100,000 families are facing a foreclosure procedure or are in loss mitigation programs where Defendants have incurred in the actions and/or omissions alleged in this case." Docket No. 8 at 19.
In the instant case, Plaintiffs do not meet the requirement of numerosity, Rule 23(a)(1), since they do not present any proof of their numbers. College of Dental Surgeons of P.R. v. Conn. Gen. Life Ins. Co., 585 F.3d 33, 41 (1st Cir. 2009). Plaintiffs simply continue to file amended complaints and adding more plaintiffs without identifying the facts as to each violation, and without connecting the facts to any law nor to any particular defendant.
Commonality
Plaintiffs do not provide evidence that "there are questions of law or fact common to the class." Fed.R.Civ.P. 23(a) (2). The Supreme Court has determined that "[w]hat matters to class certification is not the raising of common ‘questions’— even in droves— but, rather, the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. at 350, 131 S.Ct. 2541 (2011). (Emphasis in original, ellipses omitted). The "determination of its [commonality] truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. In the instant matter, Plaintiffs asking "[w]hether Defendants" "breached" or "violated" several federal and state laws does not constitute a strong legal analysis able to comply with Puerto Rico College of Dental Surgeons v. Triple S Management Inc., 290 F.R.D. 19, 26 (D.P.R. 2013) ("superficial and outdated" legal analysis on the question of commonality fail as a matter of law).
As explained fully in Defendant Banco Popular of Puerto Rico’s Opposition to Plaintiffs’ Amended Motion Reiterating Class Certification at Docket No. 67, "Plaintiffs’ allegations do not distinguish between what happened to any specific named Plaintiffs." The lack of factual evidence tying claims to specific Plaintiffs and Defendants is not enough to meet the commonality requirement. Puerto Rico College of Dental Surgeons, 290 F.R.D. at 26.
A class action lawsuit is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only. Id. Moreover, there is no factual link between each Plaintiff and each Defendant. See Gonzalez-Camacho v. Banco Popular de Puerto Rico, 318 F.Supp.3d 461, 516 (D.P.R. 2018).
Typicality
The element of typicality is not met either. Fed.R.Civ.P. 23(a)(3). To meet this requirement "[t]he representative’s claim must arise from the same event, practice or conduct, and be based on the same legal theory as those of other class members." Collazo, 212 F.R.D. at 443. "Typicality may be defeated, however, if factual differences predominate to the extent where the court must make highly fact-specific or individualized determination in order to establish a defendant’s liability to each class member." Id.
In the instant case, not even the namesake representative of the case, Yiries Joseph Aseph Saad Maura, who was included in Plaintiffs’ Amended Motion to Certify Class is factually tied to the alleged legal violations included in the complaints filed. See Spokeo, Inc. v. Robins, 578 U.S. __, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) ("That a suit may be a class action adds nothing to the question of Article III standing, for even named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class..."). Again, the lack of evidence renders Plaintiffs’ Amended Motion to Certify Class filed at Docket No. 8, unmeritorious. Comcast, 569 U.S. 27, 133 S.Ct. 1426, 185 L.Ed.2d 515.
Adequacy
Finally, Plaintiffs also fail to meet the requirement of adequacy. Fed.R.Civ.P. 23(a)(4). The lack of evidence prevents the Court from determining if "the representative parties will fairly and adequately protect the interests of the class." Id. See also Rodriguez-Feliciano v. P.R. Elec. Power Auth., 240 F.R.D. 36, 39 (D.P.R. 2007) ("Plaintiffs provide the Court with no supporting evidence... [hence, Plaintiffs] have failed to show this Court that they would fairly and adequately protect the interest of the class").
In the instant case, Plaintiffs reference Rule 23(b)(2) as the type of class action intended. Docket No. 8 at 13 and 25. The Supreme Court exemplified the scope of Rule 23(b), in particular Rule 23(b)(2), when it ruled in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360-361, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (Scalia, J.) that:
Rule 23(b)(2) allows class treatment when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." One possible reading of this provision is that it applies only to requests for such injunctive or declaratory relief and does not authorize the class certification of monetary claims at all. We need nor reach that broader question in this case, because we think that, at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule. The key to the (b) (2) class is "the indivisible nature of the injunctive or declaratory remedy warranted - the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them." Nagareda, 84 N.Y.U.L.Rev., at 132. In other words, Rule 23(b) (2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when a class member would be entitled to an individualized award of monetary damages.
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. at 360-361, 131 S.Ct. 2541 (Emphasis in the original).
Plaintiffs herein do not meet Rule 23(b) (2) requirement since that option is for injunctive or declaratory reliefs and Plaintiffs are asking for a monetary remedy of $9,999,000. Dukes, 564 U.S. at 360-361, 131 S.Ct. 2541; Fed.R.Civ.P. 23(b) (2).
CONCLUSION
"[C]ertification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’ " Id. at 350-51, 131 S.Ct. 2541 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) ).
The same analytical principles oversee the application of Rule 23(b). See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) . The absence of evidence prevents a rigorous analysis by the Court. Hence, lack of proof renders Plaintiffs’ Amended Motion to Certify Class filed at Docket No. 8, unmeritorious. See Comcast Corp. v. Behrend, 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013).
The Court finds that Plaintiffs’ Amended Motion to Certify Class, Docket No. 8, is now moot for resting in the Second Amended Complaint filed at Docket No. 7, which was superseded by the Third Amended Complaint filed on January 18, 2018, at Docket No. 17. See ConnectU LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008).
For the aforementioned reasons, the Court hereby DENIES Plaintiffs’ Amended Motion to Certify Class filed at Docket No. 8.
Lastly, the Court wishes to reiterate that "[a party] cannot expect a trial court to do his homework for him.... Rather, [parties have] an affirmative responsibility to put [their]... best foot forward in an effort to present a legal theory that will support [their]... claim." Cruz-Báez, et als. v. Negrón-Irizarry, 220 F.Supp.2d 77, 79 n. 3 (D.P.R. 2002) (citing McCoy v. Massachusetts Institute of Technology, 950 F.2d 13, 22-23 (1st Cir. 1991) ) (internal citations omitted).
IT IS SO ORDERED.