It is black letter law that the decision whether to certify a class lies within the District Court’s discretion.  Of course, the court must be able to control its docket and to make appropriate decisions as to time, case management logistics, and a host of similar issues.  Some of these issues are echoed in the text of Rule 23 in terms of superiority of class action treatment (Rule 23(b)(3)) and, to some extent, in the adequacy of representation under Rule 23(a).

So, if you ’re a plaintiff’s attorney who wants the court to certify your case, wouldn’t you want to demonstrate to the court certification would be the most expeditious means of proceeding?  Further, wouldn’t you want to show that the case will not be a burden on the court’s docket?  Wouldn’t you want to comply with the court’s orders? Wouldn’t you want to stay on the court’s good side?

Apparently not if you are the attorneys in McCullough v. Office Depot, Inc.pdf., Case No. CV 10-4987-GHK (C.D. Cal. June 26, 2012).   The McCullough case was brought in 2010.  The court set a deadline for the filing of motions to certify, and subsequently granted several requests by the plaintiff to extend it.  On September 9, 2011, the court granted, in effect, a “last chance” extension to move for certification by October 7, 2011.  The plaintiff did so, but then noticed the hearing for the motion for several months later, effectively extending the time again.  In the meantime, the parties took the deposition of the plaintiff’s expert six weeks after the deadline set by the court. 

The court ultimately expressed the opinion that both parties were circumventing its orders by agreements it never approved and that never appeared on the docket.  It also noted problems in the plaintiff’s failure to meet and confer with counsel for the defendants before filing his motion.

As a result of these failings, the court not only denied the plaintiff’s motion for class certification, but actually struck it.  First, it found that the plaintiff had failed on numerous occasions to comply with the court’s directives.  Moreover, it found that even if it considered the motion, the plaintiff’s counsel’s failures to comply with the court’s orders and local rules reflected questions about the adequacy of representative under Rule 23(a). 

The Bottom Line:  If you’re going to ask the court to certify your case, you might want to comply with its orders and rules before doing so.