Response in Opposition re 154 Motion for Reconsideration — Marshall v. Prestamos CDFI, LLC (Dkt. 161, E.D. Pa. No. 5:21-cv-04337)

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U.S. District Court for the Eastern District of Pennsylvania · No. 5:21-cv-04337-JMG · Doc. 161 · 2025-05-16 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT  
FOR THE EASTERN DISTRICT OF PENNSYLVANIA 
ALICIA MARSHALL, et al.,  
Plaintiffs, 
v. 
PRESTAMOS CDFI, LLC, 
Defendant. 
 
 
Civil Action No. 5:21-cv-04337-JMG 
 
 
 
 
MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR 
PARTIAL RECONSIDERATION OF THE COURT’S APRIL 30, 2025 RULING 
 
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TABLE OF CONTENTS 
Page 
PRELIMINARY STATEMENT .................................................................................................... 1 
ARGUMENT .................................................................................................................................. 1 
I. 
Plaintiffs Improperly Use Reconsideration as a Device to Invent a New Claim and 
a New Declaratory Judgment Class .................................................................................... 1 
II. 
The Court Properly Denied Certification of the Original DJ Class and Should Not 
Certify the New DJ Class Created in the Reconsideration Motion. ................................... 2 
A. 
Neither the New DJ Class nor the Original DJ Class Can Satisfy 
“Commonality” or “Typicality” as Required by Rule 23(a) ................................... 3 
B. 
Neither The Original DJ Class Nor the New DJ Class Is Cohesive as 
Required by Rule 23(b)(2) ...................................................................................... 4 
CONCLUSION ............................................................................................................................... 5 
 
 
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PRELIMINARY STATEMENT 
In their Motion for Reconsideration, Plaintiffs ask the Court to reverse the portion of its 
April 30 Order denying certification of the Declaratory Judgment Class (the “Original DJ Class”) 
under Fed. R. Civ. P. 23(b)(2).  As described below, the Motion comes nowhere near meeting the 
“clear error of law” or “manifest injustice” required for the “extraordinary remedy” of 
reconsideration.  Harrison v. City of Lancaster, No. 5:20-cv-01879-JMG, 2021 U.S. Dist. LEXIS 
112543, at *5 (E.D. Pa. June 16, 2021) (Gallagher, J.).   
ARGUMENT 
I. 
Plaintiffs Improperly Use Reconsideration as a Device to Invent a New Claim and a 
New Declaratory Judgment Class.  
“Granting a motion for reconsideration is ‘an extraordinary remedy’ and should only be 
done ‘sparingly.’”  Id. (citing D’Angio v. Borough of Nescopeck, 56 F.Supp.2d 502, 504 (M.D. 
Pa. 1999)); accord Gallagher J., Policies and Procedures § II.B.7.  A district court may 
reconsider and amend a judgment based on “the need to correct a clear error of law or prevent 
manifest injustice.”  In re Processed Egg Prods. Antitrust Litig., 962 F.3d 719, 729 (3d. Cir. 
2020).  Reconsideration motions “may not be used to relitigate old matters, or to raise arguments 
or present evidence that could have been raised prior to the entry of judgment.”  Exxon Shipping 
Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (citations omitted).  In contrast to a renewed motion 
for class certification pursuant to Rule 23(c)(1)(C)—which must be based on either “new 
evidence [or] a more narrow and clearer definition of a class,” and which Plaintiffs have not 
filed—a motion for reconsideration imposes more stringent standards and is not intended to 
provide parties “multiple bites at the apple throughout the litigation.”  Hargrove v. Sleepy’s LLC, 
974 F.3d 467, 476-77 (3d Cir. 2020). 
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Plaintiffs’ Motion defies each of these standards.  For starters, Plaintiffs never pled a 
cause of action that Prestamos wrongfully demanded repayment of unfunded loans.  While 
Plaintiffs have lodged unsubstantiated allegations that Prestamos pursued repayment of unfunded 
loans (among other false claims), the operative Complaint consists of a single count for breach of 
contract asserting that “Prestamos failed to complete its end of the bargain by failing to make the 
PPP loans to Plaintiffs and the members of the Classes . . . .”  See ECF No. 108 ¶ 427 (Third 
Am. Compl.).  Consistent with this theory, Plaintiffs sought to certify two classes:  a “Damages 
Class” and a “Declaratory Judgment Class,” and they defined both classes as consisting of 
individuals “who executed and submitted their Loan Documents and provided to Prestamos all 
required loan documentation, but as to whom Prestamos . . . failed to disburse the PPP loan 
proceeds.”  ECF No. 138 at 1-2 (Mot. for Class Certification); ECF No. 152 at 5-6 (Op. Denying 
Class Certification).   
In their Motion for Reconsideration, Plaintiffs have invented a new claim on behalf of a 
new “Declaratory Judgment Class,” consisting of individuals who did not receive PPP loans but 
from whom Prestamos nonetheless demanded repayment (hereinafter the “New DJ Class”).  It is 
difficult to conceive of a more inappropriate basis for reconsideration.1     
II. 
The Court Properly Denied Certification of the Original DJ Class and Should Not 
Certify the New DJ Class Created in the Reconsideration Motion. 
Quite apart from their abuse of the reconsideration standards, Plaintiffs cannot establish 
that their New DJ Class has the “commonality” or “cohesiveness” required for certification 
under Rule 23(b)(2).  Notwithstanding extensive class and merits discovery, Plaintiffs identify 
                                                 
1  
Moreover, the New DJ Class is based on a faulty factual premise.  While Plaintiffs have 
claimed that some Plaintiffs received demand for repayment in error, there is no evidence 
that Prestamos in fact pursued repayment of unfunded loans or that any plaintiff or borrower 
repaid money that they never received.   
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only three (out of the current ten) Named Plaintiffs and no specific putative class members from 
whom Prestamos allegedly sought repayment of unfunded PPP loans.  And although these 
Named Plaintiffs claimed in their depositions that they received emails demanding repayment, 
they never produced the alleged emails.2  See ECF No. 155 at 2-3 (Pls’ Mem. in Supp. of Mot. 
for Recons.).  Nor have Plaintiffs produced any evidence that Prestamos in fact pursued 
repayment of loans that Plaintiffs’ banks rejected (because Prestamos did not).  Plainly, any 
proof of class membership is inherently individualized because it would require a detailed review 
of each borrower’s files to assess whether Prestamos ever made a repayment demand and, if so, 
the circumstances and timeframe in which Prestamos pursued or withdrew any such demands.  
Plaintiffs have identified no classwide mechanism to make these essential determinations.  These 
myriad individualized issues prevent Plaintiffs from meeting the commonality requirement of 
Rule 23(a)(2) or the cohesiveness requirement of Rule 23(b)(2).  
A. 
Neither the New DJ Class nor the Original DJ Class Can Satisfy 
“Commonality” or “Typicality” as Required by Rule 23(a). 
As noted above, this case consists of a single count alleging that Prestamos breached a 
contract to fund PPP loans.  Plaintiffs correspondingly moved to certify a damages class and a 
declaratory judgment class, both consisting of borrowers whose PPP loans were unfunded. 
It is well settled that all putative classes, including a declaratory judgment class under 
Rule 23(b)(2), must “meet[] the requirements of Rule 23(a).”  Cave v. Saxon Mortg. Servs., Nos. 
11-4586, 12-5366, 2016 U.S. Dist. LEXIS 141033, at *31 (E.D. Pa. Oct. 11, 2016) (denying 
                                                 
2  
Plaintiffs never produced the alleged emails sent to Johnson or Townsend, despite these 
emails being within the scope of Prestamos’s discovery requests.  See ECF No. 142-24 at 
RFP Nos. 5, 7 (Opp’n to Class Certification Ex. 19).  At the Court’s direction, each 
Named Plaintiff submitted signed certifications indicating that he or she was unable to 
locate and produce certain responsive documents regarding their PPP loans.  See ECF 
No. 157-4 at Def_Appx_0386-97 (Def.’s Mot. for Summ. J. App. Vol. 2). 
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certification of (b)(2) class).  Properly applying this standard, the Court denied certification of 
the damages class and the Original DJ Class for failure to meet the commonality requirement of 
Rule 23(a)(2) or the typicality requirement of Rule 23(a)(3).  Thus, the Court held that “the 
central question is not common because each Plaintiffs’ loans were canceled for . . . different 
reasons,” ECF No. 152 at 14, and that Plaintiffs “cannot meet typicality because they are subject 
to unique defenses,” id. at 16.   
In short, the individualized circumstances regarding the return of each Plaintiff’s loan 
funds precluded class certification.  Even as improperly redefined, the New DJ Class would 
involve similarly individualized review of loan files.  Moreover, Plaintiffs developed no factual 
record to support this New DJ Class, which is not surprising given that this new class is an 
afterthought designed to manufacture a colorable basis to seek reconsideration of this Court’s 
denial of their Motion for class certification.   
For this reason alone, neither the Original DJ Class nor the New DJ Class meets the 
requirements of Rule 23(a), and there is no basis to seek reconsideration of the Court’s decision 
denying class certification. 
B. 
Neither the Original DJ Class Nor the New DJ Class Is Cohesive as Required 
by Rule 23(b)(2). 
In addition to satisfying the requirements of Rule 23(a), a declaratory judgment class also 
has to be “sufficiently cohesive under Rule 23(b)(2).”  Cave, 2016 U.S. Dist. LEXIS 141033, at 
*31.  Cave denied certification of a (b)(2) class for lack of cohesiveness in circumstances 
strikingly similar to those in this case.  The plaintiffs in Cave sued a lender for breach of contract 
on behalf of a putative class of distressed mortgage borrowers who were denied permanent 
Home Affordable Modification Program contracts but failed to receive timely notification of the 
denials.  The court declined to certify a class under Rule 23(b)(2) based on the lack of 
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cohesiveness, explaining that adjudication would require “reviewing the contents of each 
borrower’s loan file and thus raises myriad individual issues.”  Id. at *37. 
Similarly, here, the purported evidence Plaintiffs identify in support of Prestamos’s 
alleged repayment demands is inherently individualized.  For two of these individuals (Johnson 
and Townsend), the sole evidence is deposition testimony proffered in this case.  For the third 
individual (Lloyd), Plaintiffs also identified personalized troubleshooting correspondence 
between Lloyd and Prestamos.3  In each case, individualized reviews of the borrowers’ files—as 
well as fact-intensive depositions of each borrower—were necessary to assess whether and why 
requests for repayment were made and, if so, whether and why they were rescinded.  And even 
after this individualized analysis, potentially important information remained unavailable for 
certain borrowers.  See supra note 2 (Plaintiffs failed to produce documents borrowers claimed 
to have received evidencing repayment requests).  In short, because determining whether a 
person is included within the putative class definition “requires reviewing the contents of each 
borrower’s loan file and thus raises myriad individualized issues,” the New DJ Class, like the 
Original DJ Class, lacks the necessary cohesion required under Rule 23(b)(2).   
CONCLUSION 
For the foregoing reasons, the Court should deny Plaintiffs’ Motion for Reconsideration. 
 
 
 
                                                 
3  
Lloyd’s circumstances also present the unique issue of whether his PPP loan was 
“unfunded.”  Unlike the rest of the Named Plaintiffs, Lloyd’s bank accepted Prestamos’s 
disbursement of Prestamos’s disbursement of PPP funds to Lloyd, allowed the funds to 
remain in Lloyd’s account for nearly a year-and-a-half, but froze Lloyd’s account and his 
ability to access the funds.  ECF No. 142 at 18. 
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Dated: May 16, 2025 
Respectfully submitted, 
BALLARD SPAHR LLP 
By: /s/ Marcel S. Pratt 
Marcel S. Pratt (Pa. ID 307483) 
Edward D. Rogers (Pa. ID 69337) 
Thomas J. Gallagher IV (Pa. ID 316269) 
J. Chesley Burruss (Pa. ID 331521) 
Travis W. Watson (Pa. ID 330753) 
1735 Market Street, 51st Floor 
Philadelphia, PA  19103 
T: 215-665-8500 
prattm@ballardspahr.com 
rogerse@ballardspahr.com 
gallaghert@ballardspahr.com  
burrussc@ballardspahr.com 
watsontw@ballardspahr.com 
 
 
 
 
 
 
Counsel for Defendants 
 
HERRERA ARELLANO LLP 
Roy Herrera (admitted pro hac vice) 
Daniel A. Arellano (admitted pro hac vice) 
Jillian Andrews (admitted pro hac vice) 
Austin T. Marshall (admitted pro hac vice) 
Jane Ahern (admitted pro hac vice) 
1001 North Central Avenue, Suite 404 
Phoenix, AZ  85004 
T: 602-567-4820 
Roy@ha-firm.com 
Daniel@ha-firm.com 
Jillian@ha-firm.com 
Austin@ha-firm.com 
Jane@ha-firm.com 
 
Beatriz Aguirre (admitted pro hac vice) 
600 Pennsylvania Avenue, Suite 300 
Washington, DC 20003 
T: 202-798-6488 
Beatriz@ha-firm.com 
 
 
 
 
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CERTIFICATE OF SERVICE 
I, Thomas J. Gallagher IV, hereby certify that on this 16th day of May 2025, I caused a 
copy of the foregoing Defendant Prestamos’s Memorandum of Law in Opposition to Plaintiffs’ 
Motion for Partial Reconsideration, to be served on all counsel of record via email. 
 
/s/ Thomas J. Gallagher IV 
 
Thomas J. Gallagher IV 
 
 
 
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