Court filing
Memo of Points and Authorities Memorandum of Points and Authorities — In re BofA Unemployment Litigation (Dkt. 311-1)
Filed September 27, 2024 in In re Bank of America California Unemployment Benefits Litigation; one of 1415 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of California |
|---|---|
| Filed | 2024-09-27 |
U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 311-1 · 2024-09-27 · Docket on CourtListener
Full text
Memorandum of Points and Authorities in Support of
Individual Plaintiffs’ Motion to Stay Proceedings
CASE No: 3:21-md-02992-LAB-MSB
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Joshua B. Swigart (SBN 225557)
Josh@SwigartLawGroup.com
SWIGART LAW GROUP, APC
2221 Camino del Rio S, Ste 308
San Diego, CA 92108
P: 866-219-3343
F: 866-219-8344
Liaison Counsel for Individual Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CASE: 3:21-md-02992-GPC-MSB
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
INDIVIDUAL PLAINTIFFS’
MOTION TO STAY
PROCEEDINGS PENDING
RESOLUTION OF RELATED
CLASS ACTION CERTIFICATION
Date: September 27, 2024
Time: 1:30 p.m.
Dept.: C
Judge: Hon. Gonzalo P. Curiel
IN RE BANK OF AMERICA
CALIFORNIA
UNEMPLOYMENT BENEFITS
LITIGATION
This Document Relates to All
Actions
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Memorandum of Points and Authorities in Support of
Individual Plaintiffs’ Motion to Stay Proceedings
CASE No: 3:21-md-02992-LAB-MSB
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TABLE OF CONTENTS
I.
INTRODUCTION .......................................................................................... 1
II.
RELEVANT FACTS AND PROCEDURAL HISTORY .............................. 3
III.
LEGAL STANDARD .................................................................................... 9
IV.
ARGUMENT .................................................................................................. 9
A. There Would Be Minimal (if any) Damage from Granting a Stay ............ 9
B. The Hardship or Inequity from Denying Stay Is Much More Severe ..... 10
C. A Stay Promotes Judicial Economy and Efficiency ................................ 12
D. Court Routinely Stay Individual Cases Pending Resolution of Related
Class Actions ........................................................................................... 14
V.
CONCLUSION ............................................................................................. 15
i
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Memorandum of Points and Authorities in Support of
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TABLE OF AUTHORITIES
Page(s)
Cases
Aleman ex rel. Ryder Sys., Inc. v. Sancez,
2021 WL 917969 (S.D. Fla. Mar. 10, 2021) .............................................................. 14
Ali v. Wells Fargo Bank, N.A.,
2014 WL 819385 (W.D. Okla. Mar. 3, 2014) ............................................................ 15
CMAX, Inc. v. Hall,
300 F.2d 265 (9th Cir. 1962) ................................................................................. 9, 12
Colo. River Water Conservation Dist. v. United States,
424 U.S. 800 (1976) .................................................................................................. 13
I.A. Durbin, Inc. v. Jefferson Nat’l Bank,
793 F.2d 1541 (11th Cir. 1986) .................................................................................. 13
Landis v. N. Am. Co.,
299 U.S. 248 (1936) .................................................................................................... 9
Leyva v. Certified Grocers of Cal. Ltd.,
593 F.2d 857 (9th Cir. 1979) ....................................................................................... 9
Lockyer v. Mirant Corp.,
398 F.3d 1098 (9th Cir. 2005) ............................................................................... 9, 12
Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist.,
112 F. App’x 89 (2d Cir. 2004) .................................................................................. 15
McDaniels v. Stewart,
2017 WL 132454 (W.D.WA. January 13, 2017) ....................................................... 13
Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist.,
559 F.3d 1191 (11th Cir. 2009) .................................................................................. 13
Richard K. v. United Behavioral Health,
2019 WL 3083019 (S.D.N.Y. June 28, 2019) ............................................................ 14
Taunton Gardens Co. v. Hills,
557 F.2d 877 (1st Cir. 1977) ................................................................................ 13, 15
Walker v. Long Island Railroad, Inc,
1982 WL 180 (S.D. NY 1982 .................................................................................... 15
Statutes
28 U.S. Code § 1407 .................................................................................................... 13
ii
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Memorandum of Points and Authorities in Support of
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I.
INTRODUCTION
The 133 Individual Plaintiffs1 in this multi-district litigation respectfully request
that the Court stay their cases until the common issues of law and fact are adjudicated
in the consolidated Class Case. A temporary stay will serve the interests of judicial and
party economy in several ways. First, Class Plaintiffs’ motion for class certification is
due to be filed on August 29. If a class is certified, some of the Individual Plaintiffs
may choose not to opt out and may dismiss their separate lawsuits in order to participate
in the class proceedings, decreasing the number of individual cases to be litigated.
Second, because the individual and class claims substantially overlap, the Court’s
rulings in the Class Case will significantly streamline all proceedings in the Individual
Cases, including discovery.
The current state of discovery demonstrates the need for a temporary stay of the
Individual Plaintiffs’ cases. To date, the majority of Plaintiffs’ discovery has
concentrated on issues of fact that are common to the Class and Individual Plaintiffs.
While some of the Individual Plaintiffs’ records have been produced by the Bank, that
production has been spotty and is not complete for the 133 Individual Plaintiffs.
Notably, Judge Burns’s original case management order [ECF 48] permitted only the
Interim Co-Lead Counsel for the Class Plaintiffs to conduct discovery; counsel for the
Individual Plaintiffs were specifically ordered that they “may [not] make any request
for or response to discovery.” [Id. at 3.] Additionally, to avoid duplication of efforts as
ordered by the Court [id. at 2], Liaison Counsel for the Individual Plaintiffs have only
reviewed those records that relate directly to the Individual Plaintiffs and a small subset
of other documents. Liaison Counsel and other counsel for the Individual Plaintiffs have
1 The Second Amended Master Consolidated Complaint includes 21 class plaintiffs
(“Class Plaintiffs”) and 133 individual plaintiffs (the “Individual Plaintiffs”). An
additional 257 individual plaintiffs have asserted claims in later-filed cases that are not
included in the consolidated pleading and are stayed pursuant to the July 20, 2021
Order RE: Case Management [ECF 48 at 2 (“Any individual plaintiff’s claims alleged
in a member case but not included in the consolidated pleading are STAYED.”)].
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not had an opportunity to review the vast majority of the nearly one million pages of
documents produced to date that relate to issues common to the Class and Individual
Plaintiffs. This approach to discovery only makes sense if the efficiencies anticipated in
the adjudication of common issues of fact and law take place in the Class Case in the
first instance. If these common issues are not prioritized in the Class case, the Individual
Plaintiffs will be prejudiced.
Third, on August 9, 2024, BANA issued notices to take the depositions of 128
Individual Plaintiffs to be taken four-per-day over the course of two months. In addition
to being premature given BANA’s failure to produce all relevant records, the 128
deposition notices demonstrate the wastefulness of litigating the 133 individual cases
prior to the Courts’ adjudication of the Class claims which will narrow the issues to be
litigated and decrease the number of Individual Plaintiffs who will proceed on an
individual basis. The fact discovery cut-off is currently scheduled for December 12,
2024. [ECF 302.] At this point, even if the Court were to permit the Individual Plaintiffs
to conduct discovery for each of the 133 cases, without the benefit of the Court’s ruling
in the Class case, this four-month window would severely undermine the Individual
Plaintiffs’ ability to present their case.
Finally, as detailed in the table below, pursuant to the original case management
order in this case, the claims of 257 other plaintiffs who joined this MDL after the
Master Complaint was filed are currently stayed in their entirety. [See Order RE: Case
Management, ECF 48 at 2 (“Any individual plaintiff’s claims alleged in a member case
but not included in the consolidated pleading are STAYED.”)]. Each of these cases
were stayed upon filing by order of the Court. See, e.g., Abila et al v. Bank of America,
N.A., 3:21-cv-01766-GPC-MSB, Dkt. No. 8 (“The Court orders all deadlines in this
matter STAYED pending resolution of the related multidistrict litigation”). It makes
little sense to proceed with the claims of 133 Individual Plaintiffs when 257 other
individual plaintiffs’ cases are stayed and the only difference is that some filed before
the MDL cut off and some filed afterwards. None of these individual cases should
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proceed until after this Court has decided whether to certify a class and on what issues,
and the Court has ruled on the pre-trial issues of fact and law that are common to all of
the plaintiffs in the consolidated multi-district litigation, narrowing the issues to be
decided in all the individual cases.
Accordingly, the Individual Plaintiffs respectfully request that their actions be
stayed pending adjudication of common issues of fact and law in the Class Case.
II.
RELEVANT FACTS AND PROCEDURAL HISTORY
This multi-district litigation arises from Bank of America’s (“BANA” or
“Defendant”) mishandling of the prepaid debit card accounts meant to disburse EDD
benefits to Californians who became unemployed during the Covid-19 pandemic. In
violation of its statutory, common law, and contractual obligations to Plaintiffs and
Class Members, BANA failed to take protect Plaintiffs from fraudulent transactions and
then deprived Plaintiffs of access to the EDD benefits to which they were entitled.
More than eighteen (18) actions were filed and then consolidated in this MDL,
including the Yick consolidated class action. Several of the individual actions included
hundreds of plaintiffs in a single complaint while others included only a few plaintiffs.
All actions not already in this district were transferred to for consolidated pretrial
proceedings by the Judicial Panel on Multidistrict Litigation. [Dkt. No. 1].
On July 19, 2021, the Court in the Southern District held a preliminary conference.
After hearing from counsel, the Court issued a case management order directing that a
master consolidated complaint be filed and that it include the Class Action and certain
individual plaintiffs’ cases (“the July 2021 Order”). [Dkt. No. 48, p. 2]. Pursuant to
the July 2021 Order, “Any individual plaintiff’s claims alleged in a member case but
not included in the consolidated pleading are STAYED.” Accordingly, all cases filed
after the filing of the Master Consolidated Complaint were effectively stayed pursuant
to the Court’s Order.
//
//
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The following table provides a summary of the Individual Plaintiffs’ cases,
including the 133 Individual Plaintiffs whose claims are currently not stayed and the
257 individual plaintiffs whose claims are currently stayed.
Case
Date Filed
# of Plaintiffs Stayed
Meza v. Bank of America, N.A.
No. 21-cv-00484
March 18, 2021
1
No.
Brotman v. Bank of America, N.A.
No. 21-cv-00520
March 24, 2021
1
No.
Morrell v. Bank of America, N.A.
No. 21-cv-00542
March 26, 2021
1
No.
Payton v. Bank of America, N.A.
No. 21-cv-00644
April 13, 2021
1
No.
Talia v. Bank of America, N.A.
No. 21-cv-00676
April 15, 2021
1
No.
Abarr et al v. Bank of America,
N.A. No. 21-cv-01203
July 1, 2021
230 (initially)
108 dismissed
No.
Rojas de Charolet v. Bank of
America, N.A. No. 21-cv-00925
May 14, 2021
1
No.
Hart v. Bank of America, N.A. No.
21-cv-01175
June 8, 2021
1
No.
Alvarez v. Bank of America, N.A.
No. 21-cv-01176
June 7, 2021
1
No.
Verdun v. Bank of America, N.A.
No. 21-cv-01196
May 28, 2021
1
No.
Adams v. Bank of America, N.A.
No. 21-cv-01327
July 7, 2021
1
No.
Abila v. Bank of America, N.A.
No. 21-cv-01766
Oct. 13, 2021
244
Yes.
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Woodears v. Bank of America,
N.A. No. 21-cv-01659
Aug. 16, 2021
1
Yes.
Delapaz v. Bank of America, N.A.
No. 21-cv-01660
Aug. 13, 2021
1
Yes.
Boyd v. Bank of America, N.A.
No 22-cv-00820
Jan. 5, 2021
1
Yes.
Holbrook v. Bank of America,
N.A. No. 22-cv-00168
Jan. 7, 2022
1
Yes.
Connor v. Bank of America, N.A.
No. 22-cv-00295
Jan. 27, 2022
1
Yes.
Cruz v. Bank of America, N.A. No.
22-cv-00761
Oct. 15, 2021
1
Yes.
Gardner v. Bank of America, N.A.
No. 22-cv-01014
June 1, 2022
1
Yes.
Delaney v. Bank of America, N.A.
No. 22-cv-01509
August 4, 2022
1
Yes.
Manukyan v. Bank of America,
N.A. No. 22-cv-01760
September 1,
2022
1
Yes.
Collom v. Bank of America, N.A.
No. 22-cv-01894
October 25,
2022
1
Yes.
Elekes v. Bank of America, N.A.
No. 22-cv-00754
April 14, 2022
1
Yes.
Tapper v. Bank of America, N.A.
No. 22-cv-00858
April 2022
1
Yes.
Gaitan v. Bank of America, N.A.,
No. 24-cv-01088
March 12, 2024
1
Yes.
The July 2021 Order designated Cotchett, Pitre, & McCarthy LLP and Altshuler
Berzon LLP as interim co-lead counsel (“Class Counsel”) to represent the interests of
the Class. That Order also appointed an interim liaison counsel (“Liaison Counsel”) to
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represent the interests of the Individual Plaintiffs. Liaison Counsel was comprised of
two of the attorneys who represented the individual cases.2
Under the July 2021 Order, the Class Counsel’s responsibilities included: (a)
determining the litigation strategy on behalf of Class Action Plaintiffs; (b) promoting
the orderly and efficient conduct of this litigation and avoiding unnecessary duplication
and unproductive efforts; (c) acting as spokesperson (either personally or by designee)
for the Plaintiff class at pretrial conferences; (d) delegating work responsibilities; (e)
entering into stipulations (either personally or by designee) necessary for the conduct
of the litigation with opposing counsel; and (f) communicating with Defendant’s
counsel and the Court on behalf of Class Action Plaintiffs and the class. [Dkt. No. 48,
pp. 2-3].
The July 2021 Order established that while BANA could engage in discovery
concerning both the Class Action and the Individual Plaintiffs, the authority to conduct
discovery was exclusively granted to Class Counsel. This restriction meant that only
Class Counsel had the ability to propound written discovery or notice depositions.
Notably, the July 2021 Order expressly restricted any other Plaintiff from engaging in
the discovery process. That Order provides,
No plaintiff may make any request for or response to discovery, initiate
or file any other pretrial or trial proceedings (except that individual
plaintiffs not already involved in a member case may file new
complaints), or file or respond to any dispositive motion except through
Interim Co-Class Counsel.
[Dkt. No. 48, p. 3].
Under the July 2021 Order, despite being tasked with representing the interests
of individual plaintiffs, Liaison Counsel was constrained from actively engaging in the
2 The Order provides, The Law Office of Daniel G. Shay was appointed and Joshua B. Swigart was
later appointed as co-Interim Liaison Counsel for individual plaintiffs. (Counsel then filed an Ex
Parte Motion to add as individual plaintiffs’ Co-Interim Liaison Counsel, Swigart Law Group which
motion the court granted [dkt. No56]).
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discovery process. This included being barred from propounding discovery, noticing
depositions, issuing subpoenas, or participating in any meaningful way. While Liaison
Counsel could attend depositions noticed by BANA or Class Counsel, their role was
limited to mere observation without the ability to actively participate. BANA
consistently reinforced these limitations. Liaison Counsel, anticipating a fair
opportunity to engage in discovery once this partial stay was lifted, did not contest the
terms set forth in the July 21 Order or the positions taken by BANA on discovery
matters.
Following the Court’s ruling on BANA’s initial motion to dismiss, discovery
between BANA and the Class Action commenced in June 15, 2023. [Dkt. No. 139]
During this process, Class Counsel received access to over two hundred sixty-two
thousand (262,000) files which equals nearly one million pages produced by BANA
and third parties. However, to avoid duplication of efforts until common issues of law
and fact are determined by the Court, Liaison Counsel was restricted from reviewing
the entirety of these documents. Instead, they were granted access only to files
specifically related to the Individual Plaintiffs and a small set of other documents.
Consequently, although a significant volume of files was produced, Liaison Counsel
could examine less than three percent of them.
The documents that Liaison Counsel were permitted to view were limited to
correspondence between BANA and some Individual Plaintiffs, computer print outs and
investigation notes that pertained to only that Individual Plaintiff. The reason for this
is because the files that Liaison Counsel was permitted to view were specific to a certain
plaintiff, not to BANA generally. The files did not contain any documents regarding
BANA’s policy and procedures, internal communications and memo, or other
documents that would assist in the prosecution of the cases of Individual Plaintiffs
whose cases had not been stayed. Additionally, the Bank’s production of the Individual
Plaintiffs’ records continues to be incomplete.
//
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On June 25, 2024, the Court issued a ruling granting in part and denying in part
Defendant’s motion to dismiss. [Dkt. No. 297.] On June 27, 2024, the Court issued an
Amended Scheduling Order (the “June 2024 Order”) setting forth dates for, inter alia,
the class certification briefing schedule (to be completed by November 21, 2024) and
the completion of discovery for the class and Individual Plaintiffs (to be completed by
December 12, 2024). [Dkt. No. 302].
Despite precluding Liaison Counsel from independently conducting discovery of
BANA, on August 9, 2024, BANA issued notices to take the depositions of 128
Individual Plaintiffs. BANA noticed four Individual Plaintiff depositions per day every
day for two months: two depositions at 9:00 AM and two depositions at 1:30 PM,
commencing on September 16 and continuing over consecutive days until November 7,
2024. Liaison Counsel objected to this unduly burdensome and prejudicial proposal and
proposed that the parties jointly seek a stay of discovery of the Individual Plaintiffs’
cases pending resolution of the class claims. BANA refused to agree to a stay.
Although Individual Plaintiffs do not oppose the delegation of litigation
responsibilities to Class Counsel—understanding the logic of allowing the class action
to proceed first—they respectfully ask for a stay to allow common issues of fact and
law to be adjudicated in the Class Case in the first instance. Liaison Counsel and other
counsel for the Individual Plaintiffs have not had an opportunity to review the vast
majority of the nearly one million pages of documents produced to date. This approach
to discovery only makes sense if the efficiencies anticipated in the adjudication of
common issues of fact and law take place in the Class Case in the first instance. If these
common issues are not prioritized in the Class case, the Individual Plaintiffs will be
unduly prejudiced in having to proceed without the benefit of full discovery and without
the benefit of the Court’s rulings on common issues of fact and law that are presented
in the Class Case.
//
//
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III.
LEGAL STANDARD
Federal courts have the inherent power to manage their dockets. Landis v. N. Am.
Co., 299 U.S. 248, 254 (1936). Incidental to this power is the discretion to stay
proceedings. See id.; see also Leyva v. Certified Grocers of Cal. Ltd., 593 F.2d 857, 863
(9th Cir. 1979) (“A trial court may, with propriety, find it is efficient for its own docket
and the fairest course for the parties to enter a stay of an action before it, pending
resolution of independent proceedings which bear upon the case.”).
That discretion is guided by balancing the harms and benefits that may arise from
a stay. In particular, courts weigh three factors: (1) “the possible damage which may
result from the granting of a stay;” (2) “the hardship or inequity which a party may
suffer in being required to go forward;” and (3) “the orderly course of justice measured
in terms of the simplifying or complicating of issues, proof, and questions of law.”
Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (quoting CMAX, Inc. v.
Hall, 300 F.2d 265, 268 (9th Cir. 1962)).
IV.
ARGUMENT
The Individual Plaintiffs request that this Court stay their cases pending
resolution of common issues of law and fact in the class action. As explained below,
the equities support granting a stay. That is, there is minimal, if any, possible damage
from granting the stay, whereas the Individual Plaintiffs would suffer extreme hardship
and have their due process rights violated by a denial of the stay. Furthermore, a stay
would promote judicial economy and efficiency, and streamline the issues in dispute.
A. There Would Be Minimal (if any) Damage from Granting a Stay
There is minimal, if any, possible damage should this Court grant a stay. The
Bank would not have to expend extra resources. Instead, Defendant would benefit by
not having to respond to discovery requests from the approximate 133 Individual
Plaintiffs (and 257 additional plaintiffs whose cases are currently stayed), freeing it to
focus on its response to the Interim Class Counsel’s upcoming motion for class
certification. Even if class certification is not granted, or, if granted, some or all of the
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Individual Plaintiffs (putative class members) choose to opt out of the class, any
prejudice against Defendant is nonexistent but for a brief delay in litigation.
BANA has stated that it opposes this request for stay. One has to wonder why.
The most likely reason is that BANA has recently been seeking to take 128 individual
class members’ depositions as an end-run around the presumptive ten deposition limits
in the Class Case. Class Counsel has asked BANA to compromise by agreeing that the
depositions of Individual Plaintiffs will not be used by either side with respect to class
certification, but BANA has declined. Despite Judge Berg’s explicit guidance to BANA
that it could only take 10 depositions before filing its opposition to the Class Plaintiffs’
motion for class certification (which could be a combination of Class Representatives
and Individual Plaintiffs), BANA’s position that it must take 128 depositions, as soon
as possible, is an obvious attempt to end run around Judge Berg’s sequencing of the
case, calculated to evade the presumptive limits provided in the Federal Rules of Civil
Procedure.
B. The Hardship or Inequity from Denying a Stay Is Much More Severe
The Individual Plaintiffs would suffer extreme hardship and inequity should this
Court deny a stay, including having to defend 128 deposition without having had access
to all of the Individual Plaintiffs’ records and to the hundreds of thousands of documents
comprising nearly a million pages that the Bank has produced to date, and without the
anticipated benefit of the Court’s rulings on common issues of law and fact in the Class
Case. It cannot reasonably be disputed that the Individual Plaintiffs have been unable
to meaningfully participate in discovery following Judge Burns’s July 2021 Order.
Without permission to “make any request for or response to discovery,” the Individual
Plaintiffs have not been permitted to draft, serve, and/or receive any written discovery
from Defendant. Swigart Decl. ¶¶ 9-11. They have also not been involved in the
drafting, reviewing, or discussion with Interim Class Counsel of any discovery
propounded on Defendant. Id. Moreover, the Individual Plaintiffs have had extremely
limited access to discovery produced by Defendant in response to Interim Class
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Counsel’s discovery requests. Id. ¶ 10. Even more, the Individual Plaintiffs have not
been invited to the many meet and confer conferences held between Interim Class
Counsel and Defendant. Id. ¶ 11. At most, counsel for the Individual Plaintiffs have
been invited to “observe” the depositions of BANA’s Rule 30(b)(6) witnesses, but they
were not allowed to ask any questions. Id. ¶ 12. In fact, the Individual Plaintiffs’
participation in the discovery process has been limited to requesting only their
individual files, responding to written discovery served by Defendant, and sitting for
their depositions.3 Swigart Decl. ¶¶ 11–12, 14–15.
With the June 2024 Amended Scheduling Order, a hard discovery cut off
deadline has been set. However, the Individual Plaintiffs have been hamstrung from
conducting any discovery due to Judge Burns’s July 2021 Order. Without a stay, they
would be forced to scramble to propound and respond to discovery in 133 cases (let
alone the 257 individual cases that are currently stayed), review hundreds of thousands
of pages of documents, bring motions to compel (should they become necessary), and
conduct an unwieldly number of depositions, all in the next three months. This would
cause severe prejudice to the Individual Plaintiffs, and it is not necessary for the efficient
litigation of their claims.
Individual Plaintiffs accordingly request a stay in order to sequence the case and
promote judicial and party efficiencies by having common issues of law and fact
determined in the Class Case in the first instance. Many of the Individual Plaintiffs may
be absent class members of the Class Case, and, in any event, the substantive issues of
fact and law in the Class Case and the Individual Cases substantially overlap. In the
event the Court certifies a class, Individual Plaintiffs who are members of the class may
dismiss their individual claims to join the class, decreasing the number of individual
cases to be litigated. Because the individual and class claims substantially overlap, the
Court’s rulings in the Class Case will significantly streamline all proceedings in the
3 This issue is particularly acute now as Defendant is demanding the remaining depositions of over
120 Individual Plaintiffs before the discovery cut off.
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Individual Cases, including discovery. On the other hand, without the benefit of the
Court’s rulings, if the common issues are not prioritized in the Class Case, the
Individual Plaintiffs will be severely prejudiced in their attempt to play “catch up” in a
very short amount of time.
The Individual Plaintiffs thus seek a stay of their cases until common issues of
law and fact are determined in the Class Case. Granting the Individual Plaintiffs’ stay
request will preserve the Individual Plaintiffs’ due process rights and streamline the
future discovery process of the Individual Plaintiffs after the class certification question
is resolved.
There does not appear to be any prejudice to the Bank if the Court stays the
Individual Plaintiffs’ cases pending resolution of common issues in the Class case. The
Bank has stated that it must complete the individual depositions before the end of fact
discovery, but the Court can sequence Individual Plaintiffs’ fact discovery after the
Class Case claims have been adjudicated, and the discovery at that time will be
significantly reduced by virtue of the Class Case going first. In fact, as discussed below,
it would streamline litigation for BANA, as well as the Court, to stay the Individual
Plaintiffs’ cases. Denying this motion, on the other hand, will greatly prejudice the
Individual Plaintiffs’ ability to litigate their individual cases by forcing them to conduct
extensive discovery during in extremely short timeframe without having the benefit of
BANA’s produced discovery in this case to date.
C. A Stay Promotes Judicial Economy and Efficiency
The interests of “simplifying or complicating issues, proof and questions of law”
all dictate granting a stay in this instance. Lockyer v. Mirant Corp., 398 F.3d 1098, 1110
(9th Cir. 2005) (quoting CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)). Federal
courts routinely exercise their power to stay a proceeding where it would promote
judicial economy and efficiency. See, e.g., McDaniels v. Stewart, 2017 WL 132454
(W.D.WA. January 13, 2017) (staying plaintiffs’ individual case during pendency of
class action for purposes of judicial economy). That is especially so when a related case
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is “likely to have a substantial or controlling effect on the claims and issues in the stayed
case,” Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191,
1198 (11th Cir. 2009), and a stay would therefore “avoid duplicative litigation,” Colo.
River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976); see also
I.A. Durbin, Inc. v. Jefferson Nat’l Bank, 793 F.2d 1541, 1551 (11th Cir. 1986) (“It is
well established that as between federal district courts, the general principle is to avoid
duplicative litigation.” (alterations and internal quotation marks omitted)).
Here, the direct impact of the ruling on the class certification and the dispositive
motions of a class action lawsuit on the Individual Plaintiffs’ cases weighs in favor of
granting a stay. See Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist.,
559 F.3d 1191, 1198 (11th Cir. 2009)).
The Interim Class Counsel is scheduled to file a motion for class certification on
August 29, 2024, and briefing will be completed by the end of November 2024. The
resolution of the class certification question will have a substantial or controlling effect
on the Individual Plaintiffs’ lawsuits. Taunton Gardens Co. v. Hills, 557 F.2d 877 (1st
Cir. 1977). Additionally, the Courts’ orders on any dispositive motions will reduce
issues for the Individual Plaintiffs to litigate and will streamline this multi-district
litigation for the Court and all the parties, including BANA. Many of the Individual
Plaintiffs are absent class members who have brought the same claims as the Class
Plaintiffs and the issue of fact and law are substantially identical. The Court’s rulings
on common issues of law and fact will necessarily reduce the issues to be litigated by
those Individual Plaintiffs, if any, who choose to opt out of the Class. Indeed, the
Individual Plaintiffs’ complaints were consolidated with the class action based on the
common questions of facts as prescribed by 28 U.S. Code § 1407. Because of the
similarity of the questions, a risk of overlap and duplication is indisputable. Conversely,
litigating the individual cases concurrent to the class action, while these absent class
members may choose to become part of the class action, will necessarily result in
redundancy in the parties’ and judicial resources. Richard K. v. United Behavioral
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Health, 2019 WL 3083019, at *7 (S.D.N.Y. June 28, 2019). Similarly, allowing the
individual lawsuits to proceed would undermine the efficiency goals of the multidistrict
litigation. Specifically, requiring the Individual Plaintiffs to pursue the discovery
process while the class certification question is still pending creates the risk of
duplicates and would drain the Court’s resources without any apparent benefit to
Defendant.
In sum, a temporary stay will serve the interests of judicial and party economy.
In the event the Court certifies a class, Individual Plaintiffs who are members of the
class may dismiss their individual claims to join the class, decreasing the number of
individual cases to be litigated. And because the individual and class claims
substantially overlap, the Court’s rulings in the Class Case will significantly streamline
all proceedings in the Individual Cases, including discovery.
D. Courts Routinely Stay Individual Cases Pending Resolution of Related
Class Actions
Finally, courts routinely stay an individual case in favor of a class action. Indeed,
this Court previously determined that a stay is warranted as to the member cases. The
Individual Plaintiffs now request that this Court likewise stay their cases.
A stay here would be consistent with other courts’ recognition that a stay is
generally warranted where “resolution of the issues raised in” a related class action “will
necessarily impact” the case before them. Aleman ex rel. Ryder Sys., Inc. v. Sancez, 21-
cv-20539, 2021 WL 917969, at *2 (S.D. Fla. Mar. 10, 2021) (noting that “the Court
entered an order staying proceedings” pending resolution of a related class action,
“recognizing that the cases are related, and that the resolution of the issues raised in the
Class Action will necessarily impact the proceedings in” the case); Richard K. v. United
Behavioral Health, 2019 WL 3083019, at *7 (S.D.N.Y. June 28, 2019), report and
recommendation adopted, 2019 WL 3080849 (S.D.N.Y. July 15, 2019) (explaining that
stay and dismissal without prejudice “are routinely found appropriate where, as here,
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the claims made in an individual lawsuit overlap with the claims being pursued by a
certified class of which the individual plaintiff is a member”).
These remedies are routinely found appropriate where the claims made in an
individual lawsuit overlap with the claims being pursued by a certified class of which
the individual plaintiff is a member. See Mackey v. Bd. of Educ. for Arlington Cent. Sch.
Dist., 112 F. App’x 89, 91 (2d Cir. 2004) (affirming dismissal without prejudice “based
on the rule against duplicative litigation” where plaintiff's allegations “duplicated
claims that had been included in separate class actions” against the defendant, and
plaintiffs “were members of those classes”); Walker v. Long Island Railroad, Inc., 1982
WL 180, at *2 (S.D. NY 1982) (dismissing individual claim of race discrimination
"without prejudice" to plaintiff's ability "to pursue his rights as a member of the plaintiff
class in [the earlier-filed certified class action]”); Taunton Gardens Co. v. Hills, 557
F.2d 877, 879 (1st Cir. 1977) (affirming stay of individual proceedings pending
resolution of related class action proceeding). “The standard in such circumstances does
not require that the parties be identical, only that . . . there be overlapping issues and
parties.” Id.; see also Ali v. Wells Fargo Bank, N.A., 2014 WL 819385, at *3 (W.D.
Okla. Mar. 3, 2014) (“[c]ourts routinely exercise this power and grant stays” when a
pending class action settlement could impact the claims in the case before them)
(collecting cases). Accordingly, Individual Plaintiffs request to stay their cases pending
the resolution of common questions of law and fact in the Class Case is well-supported
by the law and imminently reasonable under the circumstances outlined above.
V.
CONCLUSION
The Individual Plaintiffs request that a temporary stay be granted in their cases
pending resolution of common issues of law and fact in the Class Case. Granting the
motion would not harm Defendant or impair its ability to litigate any of their individual
cases. However, denying a stay will greatly impact the Individual Plaintiffs’ ability to
litigate their respective cases by forcing them to conduct extensive discovery during an
extremely short timeframe without the benefit of the Court’s rulings on common issues
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of law and fact that will necessarily streamline this litigation. Finally, granting the
motion would promote judicial economy and efficiency by focusing the litigation on
issues common to both the putative class and the Individual Plaintiffs, reducing
duplication of efforts, and the expenditure of judicial and party resources.
Respectfully submitted,
SWIGART LAW GROUP, APC
Date: August 13, 2024
By: /s/ Joshua B. Swigart
Joshua B. Swigart, Esq.
Josh@SwigartLawGroup.com
Co-Liaison Counsel for Individual
Plaintiffs
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