United States District Court, D. Utah, Central Division
JUST U.S. REALTORS, LLC, on Behalf of Itself and All Others Similarly Situated, Plaintiff,
NUDGE, LLC, BUYPD, LLC, INCOME PROPRTY USA, LLC et al., Defendants.
Campbell District Judge.
MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR
EXTENSION OF TIME TO FILE MOTION FOR CERTIFICATION
C. Wells United States Magistrate Judge.
matter is referred to the undersigned in accordance with 28
U.S.C. § 636(b)(1)(A).Plaintiff seeks an extension of
time to file a motion for class certification. Multiple
Defendants oppose the motion and join in the opposition filed
by Defendants American Legal & Escrow, LLC, Invictus Law,
LLC and Blair Jackson. As set forth below the court will GRANT
case is a proposed class action brought on behalf of
individuals and entities that were offered to purchase real
estate presented by Defendants at “Buying Summit”
events.Plaintiff alleges Defendants did not own
certain “turnkey assets” that were offered for
sale at these events and Defendants engaged in a conspiracy
to fraudulently sell the properties. Plaintiff seeks an order
extending the 90-day time-period following service of the
Complaint to file a motion seeking class certification.
Plaintiff argues the extension is necessary because there are
efficiencies that will be gained to defer class certification
until after Defendants' Rule 12(b) motions to dismiss are
oppose Plaintiff's motion arguing Plaintiff is basically
seeking to rescind Local Rule 23-1(d), and the Federal Rule
equivalent found in Rule 23, making them nonexistent.
Plaintiff cannot seek class certification “'at
their own leisure and when it is most convenient for
them.'” Further, there are important reasons for
deciding the class question earlier including the need to
define the scope of discovery and prevent a
“large-scale fishing expedition.” As such,
Defendants propose any extension be limited to “60
23(c)(1)(A) of the Federal Rules of Civil Procedure requires
the court determine whether to certify an action as a class
action “[a]t an early practicable time” after a
claim is filed. The Tenth Circuit has not specifically
articulated the exact criteria for what constitutes an
“early practicable time, ” but it has stated that
“[i]n practice, however, this decision may take
time.” Thus, there may be valid reasons that
justify the deferral of deciding whether or not to certify a
Rule 23-1(d), which is the counterpart to the Federal Rule,
provides, in relevant part:
Unless the court otherwise orders, the proponent of a class
shall file a motion for certification that the action is
maintainable as a class action within ninety (90) days after
service of a pleading purporting to commence a class action .
. . .
on a plain reading of the Local Rule, the court finds there
is flexibility in postponing whether to certify a class.
case is not analogous to Timothy v. Aqua Finance,
Inc.,  which Defendants cite in support of
their arguments against an extension. In Timothy,
the Plaintiffs “provided no explanation for their
failure to attempt to conduct the necessary discovery at the
earliest possible time.” Rather, they served
class-related discovery requests near the end of discovery.
Here, there is not the same delay by Plaintiff. The court,
therefore finds the reasoning in Timothy
Trevizo v. Adams,  the Tenth Circuit stated that
the onus is on the court to decide whether class
certification is appropriate “irrespective of whether
the parties have requested class action
status.” Thus, the court must take an active role
in deciding whether class certification is appropriate before
such a determination is impracticable. This case is in its
relative infancy and there are four motions to dismiss
currently pending. Efficiencies will be gained by postponing
the class certification decision until after the motions to
dismiss are decided. There is no need for an open-ended date
that Defendants argue eviscerates the Rules. Rather, a 90-day
extension in accordance with Plaintiff's motion is
warranted and will provide some definiteness to deciding the
class certification issue.
that Plaintiffs Motion for Extension of Time to File Motion