Articles from February 2011

Litigators from outside California’s Central District are often astonished to learn of the Central District Local Rule requiring that all motions for class certification be filed within 90 days of the case’s commencement. See C.D. L.R. 23-3 (available here). This astonishment is grounded in the fact that, in virtually all circumstances, it is impossible to file class certification papers within just 90 days.

The typical pre- and early-litigation chronology leaves a plaintiff with no discovery at the end of the 90-day period. Yet far from being a toothless, ignored local rule, the Central District’s 90-Day Rule is enforced, often without mercy, resulting in the dismissal of perfectly meritorious class actions because they could not comply with an impracticable deadline.

To obtain the discovery necessary to support class certification, there must first be a Scheduling Order in place— which itself regularly takes longer than 90 days. Moreover, once discovery is propounded and in the (quite likely) event that the defendant facing class-wide liability did not provide perfectly responsive and comprehensive discovery responses, a motion to compel is necessitated. However, once the parties have met and conferred (within 10 days of the movant’s request to do so), drafted a joint stipulation (7 days), drafted a response (another 7 days) and noticed the motion to compel (21 more days, if there is perfect congruence with the judge’s law and motion schedule), half of the 90-day period is already consumed, assuming that a Scheduling Order had been issued on day one of the case. Thus, even under this best-case scenario, it is effectively impossible to properly support a class certification motion with evidence within the prescribed 90-day window.

What about extensions? Defendants can, of course, agree to stipulate to an extension—or not. In any event, it is ultimately up to the particular judge to decide whether or not to enter a stipulation excusing compliance with the 90-Day Rule, and the preferences of Central District judges varies widely.

A better solution: Eliminate the 90-Day Rule. The Southern District of New York recently abandoned a similarly unrealistic deadline when members of the bar spoke up and educated the Rules Committee as to the problem. Here in the Central District, there is now an opportunity to take action on this issue. Eric B. Kingsley (of Kingsley & Kingsley, APC) is currently circulating an “open letter” to the Central District Rules Committee detailing the 90-Day Rule’s failings and the need for change. Mr. Kingsley is asking that members of the Central District bar undersign and endorse the letter. This is the proverbial “no-brainer”; every practitioner should support the reform of the 90-Day Rule, even defendants’ counsel that sometimes benefit from it. The 90-Day Rule is antiquated and unfair, and it is time for all concerned to take steps to eliminate it.