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Buckley v. Countrywide Home Loans, Inc.

United States District Court, W.D. Washington, at Seattle

May 20, 2015

RANDALL D. BUCKLEY, an individual man; and JUNE TAYLOR, an individual woman, on behalf of themselves and all others similarly situated, Plaintiffs,
COUNTRYWIDE HOME LOANS, INC., a New York corporation; and COUNTRYWIDE FINANCIAL CORPORATION, a Delaware corporation, Defendants.


RICARDO S. MARTINEZ, District Judge.


This matter comes before the Court on Plaintiff's Renewed Motion for Class Certification. Dkt. #55. Plaintiff, Randall Buckley, renews a prior motion for class certification arguing that new evidence demonstrates common issues predominate amongst the proposed class and a class action would be superior to other methods of resolving this case. Id. Defendants respond that the evidence upon which Plaintiff now relies was available at the time he made his previous motion, but he chose to pursue certification under a different theory. Dkt. #64. Defendants further respond that the instant motion is untimely for several reasons and that the Court need not reach a substantive analysis of the issues raised. Id. Having reviewed the record before it, and for the reasons discussed herein, and having determined that no oral argument is necessary on this motion, the Court agrees with Defendants that Plaintiff's motion is not timely and DENIES Plaintiff's motion.


Relevant background to this matter was set forth in the Court's prior Order denying Defendants' Motion for Protective Order, and is incorporated herein as follows. See Dkt. #42 at 2-3. Plaintiff is a personal homeowner who brought suit against Countrywide Home Loans, Inc. and Countrywide Financial Corporation ("Countrywide") under the Washington Consumer Protection Act, (the "CPA"), RW ยง 19.86.010. Plaintiff alleges that Countrywide changed the terms of a home mortgage refinance transaction without informing Plaintiff before they closed the deal. Plaintiff previously attempted to certify a class action on these allegations. As part of a Multidistrict Litigation ("MDL"), the Court transferred the case to Judge Sabraw in the Southern District of California for coordinated pretrial proceedings and to determine class issues for certification. Judge Sabraw denied class certification and the Ninth Circuit subsequently affirmed. Judge Sabraw then remanded Plaintiff's individual case to this Court.

After Judge Sabraw remanded the case to this Court, Plaintiff served deposition notices to Kari A. Kuipers, William E. Bailey III, and Lisa Jollife. These witnesses previously made declarations, which stated that Defendants always verbally explain any changes in loan terms to borrowers before the parties close the deal. Defendants used these declarations in their opposition to class certification. Plaintiff sought to depose the witnesses so that he can disprove or test their statements about Defendants' practices, and Defendants sought a protective order precluding Plaintiff from taking the depositions.

In reviewing the motion for protective order, this Court noted that in the prior proceedings, Plaintiff sought to depose these same witnesses, but Judge Sabraw denied the request in three separate orders. The first order was in 2010, after Judge Sabraw's denial of class certification. In that order, Judge Sabraw ruled that discovery for Plaintiff's individual case should be stayed pending a ruling from the Ninth Circuit. Dkt. # 38, Ex. D at 3. The second order was issued after the Ninth Circuit affirmed Judge Sabraw's denial of class certification. Dkt. # 35, Ex. A at 156. In that order, Judge Sabraw denied Plaintiff's request to depose the witnesses because "Plaintiff had ample opportunity to request the discovery he now seeks during the briefing and pendency of the motion for class certification." Id. Finally, the remand order stated that "any remaining pretrial and trial proceedings in the remaining component cases will - in the discretion of the transferor courts - concern only the named plaintiffs' individual claims based upon the individual facts and circumstances of their loans." Dkt. # 35, Ex. C at 3. However, after remand, this Court allowed the depositions to occur as related to Plaintiff's individual claims. Dkt. #42.

Plaintiff then sought to depose a non-party, Steven Cupples. See Dkt. #45. Defendants again moved for a protective order to preclude Plaintiff from taking the deposition. This Court denied the motion. Dkt. #54. Several months later, the instant motion followed.


A. Legal Standard for Class Certification

Plaintiff moves for class certification under Federal Rule of Civil Procedure 23(b)(3). "Before certifying a class, the trial court must conduct a rigorous analysis' to determine whether the party seeking certification has met the prerequisites of [Federal Rule of Civil Procedure] 23." Mazza v. American Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012) (citation and quotation omitted). The party seeking class certification must affirmatively demonstrate that the class meets the requirements of Rule 23. Wal-Mart Stores, Inc. v. Dukes, U.S., 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011); see also Gen'l Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Thus, in order for a plaintiff class to be certified, the plaintiff must prove that he/she meets the requirements of Federal Rule of Civil Procedure 23(a) and (b). As a threshold matter, and apart from the explicit requirements of Rule 23, the party seeking class certification must also demonstrate that an identifiable and ascertainable class exists. Mazur v. eBay Inc., 257 F.R.D. 563, 567 (N.D. Cal. 2009).

Rule 23(a) requires that plaintiffs demonstrate numerosity, commonality, typicality and adequacy of representation in order to maintain a class. Mazza, 666 F.3d at 588. That is, the class must be so numerous that joinder of all members individually is "impracticable;" there must be questions of law or fact common to the class; the claims or defenses of the class representative must be typical of the claims or defenses of the class; and the class representative must be able to protect fairly and adequately the interests of all members of the class. See Fed.R.Civ.P. 23(a)(1)-(4).

If the class is ascertainable and all four prerequisites of Rule 23(a) are satisfied, the court must also find that the plaintiff has "satisf[ied] through evidentiary proof" at least one of the three subsections of Rule 23(b). Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013). A class may be certified under Rule 23(b)(1) upon a showing that there is a risk of substantial prejudice or inconsistent adjudications from separate actions. Fed.R.Civ.P. 23(b)(1). A class may be certified under Rule 23(b)(2) if "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." Fed.R.Civ.P. 23(b)(2). Finally, a class may be certified under Rule 23(b)(3) if a court finds that "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." Fed.R.Civ.P. 23(b)(3).

"[A] court's class-certification analysis... may entail some overlap with the merits of the plaintiff's underlying claim.'" Amgen Inc. v. Conn. Ret. Plans and Trust Funds, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013) (quoting Dukes, 131 S.Ct. at 2551). Nevertheless, "Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage." Id. at 1194-95. "Merits questions may be considered to the extent - but only to the extent - that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Id. at 1195. If a court concludes that the moving party has met its burden of ...

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