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Pre-certification Motions for Summary Judgment in Class Action LitigationJeremy N. Nash

Defendants in class action lawsuits often seek a summary judgment ruling before plaintiffs have moved for class certification, but it is always a gamble to do that. Defendants who go down that road and who are fortunate enough to prevail have bound only the named plaintiff. They still run the substantial risk that a member of the proposed class will pick up the spear and take the place of the original plaintiff by filing a subsequent action.

As the Ninth Circuit explained in Schwarzschild v. Tse, “when the defendant himself moves for summary judgment before a decision on class certification. . . ‘[it] assume[s] the risk that a judgment in [its] favor will not protect [it] from subsequent suits by other potential class members, for only the slender reed of stare decisis stands between [it] and the prospective onrush of litigants.’” 69 F.3d 293, 297 (9th Cir. 1995) (quoting Haas v. Pittsburgh Nat'l Bank, 381 F. Supp. 801, 805 (W.D. Pa. 1974), rev'd on other grounds, 526 F.2d 1083 (3d Cir. 1975)).

Plaintiffs in class action cases, on the other hand, hardly ever file pre-certification motions for summary judgment. While they have no more ability to bind would-be class members than do defendants prior to class certification, see McNulty v. Fed. Hous. Fin. Agency, 954 F. Supp. 2d 294, 298 n.2 (M.D. Pa. 2013) (holding “any ruling by the court prior to class certification would bind only the named parties.”), they are not filing pre-certification motions because, more often than not it seems, courts simply will not allow it.

The problem is that pre-certification motions for summary judgment filed by plaintiffs allow members of the proposed class to preview the viability of the named plaintiffs’ claims before subjecting themselves to the binding effect of the court’s ruling. If the named plaintiff obtains a favorable ruling, would-be class members can take advantage of that outcome if the class is later certified. If the ruling is unfavorable, however, they are not bound by it and can file elsewhere. Many courts have found that even the possibility of such “one-way intervention” is unfair and raises due process concerns.

The rule against one-way intervention is therefore a double standard, but it is widely accepted and exists to protect defendants from “being pecked to death by ducks. One plaintiff could sue and lose; another could sue and lose; and another and another until one finally prevailed; then everyone else would ride on that single success.” Premier Elect. Constr. Co. v. Nat’l Elec. Contractors Assn., Inc., 814 F.2d 358, 362 (7th Cir. 1987).

The district courts still retain discretion to hear motions for summary judgment before class certification, see McNulty, 954 F. Supp. 2d at 297-98, and defendants can—and do—waive an objection based on the one-way intervention rule whenever they file their own pre-certification motions for summary judgment, Mendez v. Radec Corp., 260 F.R.D. 38, 45 (W.D.N.Y. 2009). Yet, in the absence of an express or implied waiver by the defendant, the courts appear unwilling to exercise their discretion to consider pre-certification summary judgment motions filed by plaintiffs. See Villa v. San Francisco Forty-Niners, Ltd., 104 F. Supp. 3d 1017, 1021 (N.D. Cal. 2015).

In any event, the general rule is (and is likely to remain) that class certification must be resolved before motions for summary judgment.