Action Item: Bell provides some optimism for defendants seeking to dismiss class action allegations pre-discovery and certification.
Too many times a defendant is forced to foot the bill for costly discovery and motion practice before being able to successfully challenge class allegations. The recent decision in Bell v. Cheswick Generating Station, et al., Civ. A. No. 12-929 (W.D. Pa., January 28, 2015), however, provides some optimism that defendants faced with ill-defined class action allegations may be able to avoid the expense of class-wide discovery and briefing a class certification opposition by filing a motion to strike class allegations pre-discovery.
In Bell, the Plaintiffs alleged a class comprised of individuals that live or own property within one mile of the Cheswick Generating Station "who have suffered similar damages to their property by the invasion of particulates, chemicals, and gases from the Defendant's facility which thereby caused damages to their real property." The Defendant filed a motion to strike the Plaintiffs' class allegations, relying on Federal Rules of Civil Procedure 23(c)(1)(A) and 12(b). In an opinion by Judge Cathy Bissoon, the United States District Court for the Western District of Pennsylvania acknowledged that authority to strike class allegations stems from Federal Rules of Civil Procedure 12(f), 23(c)(1)(A) and 12(d)(1)(D)—not Rule 12(b). The Court also noted that Third Circuit decisions support striking class allegations where "no amount of discovery will demonstrate that the class can be maintained."
In deciding the Defendant's motion to strike, the Bell Court rejected the Plaintiffs' argument that the Defendant's pre-discovery motion to strike was subject to the standard of review for a Rule 12(b) motion. Rather than accepting the class certification allegations as true, the Court was persuaded by the reasoning of the Seventh Circuit and a majority of District Courts considering the issue, and required the Plaintiffs to make a "prima facie showing that the class action requirements of Fed.R.Civ.P. 23 are satisfied or that discovery is likely to produce substantiation of the class allegations."
After examining the class definition, the Court determined that the class, as alleged, was a "fail-safe" class and was unascertainable in that the Court would be required to conduct mini-hearings to determine who belonged within the class. The Court also rejected the Plaintiffs' attempt to "amend[] the Complaint in their briefing," but indicated that an amended complaint that defines the class by "clear, objective criteria" may not be futile. Accordingly, the Court granted the motion to strike without prejudice to the Plaintiffs' filing a motion to amend, but cautioned that no further amendments would be permitted.
While it is too early to tell, Bell could signal a shift in this District requiring greater scrutiny of class allegations at the early stages of litigation.
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