Bobbitt v. Milberg, LLP

285 F.R.D. 424, 2012 U.S. Dist. LEXIS 135755, 2012 WL 4125848
CourtDistrict Court, D. Arizona
DecidedSeptember 18, 2012
DocketNo. CV 09-629-TUC-FRZ
StatusPublished
Cited by4 cases

This text of 285 F.R.D. 424 (Bobbitt v. Milberg, LLP) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bobbitt v. Milberg, LLP, 285 F.R.D. 424, 2012 U.S. Dist. LEXIS 135755, 2012 WL 4125848 (D. Ariz. 2012).

Opinion

ORDER

FRANK R. ZAPATA, Senior District Judge.

Pending before the Court is Plaintiffs’ motion for class certification and appointment of class counsel. For the reasons stated below, the motion is denied.1

BACKGROUND

Plaintiffs seek to certify a nationwide class action based on state based negligence and breach of fiduciary duty claims constituting legal malpractice. Plaintiffs’ current legal malpractice claims against their former class counsel arise from a nationwide class action litigated in the District of Arizona alleging securities violations based on federal law (the “Underlying Case”).

In the Underlying Case, the District Court granted two early motions to dismiss disposing of all of the state and common law claims, and gave counsel the opportunity to file an amended complaint. Counsel filed a notice with the District Court declining to file an amended complaint, and informed the District Court that it intended to only pursue the federal securities claims. The claims at issue in the Underlying Case were asserted against VALIC which was a major company in the annuities industry. VALIC sold annuities throughout all fifty states and it had more than one million customers. In the Underlying Case, plaintiffs claimed that VALIC representatives unreasonably induced clients to purchase tax sheltered annuities in situations where investments already received tax protected status (i.e., in retirement accounts, etc.); the clients were forced to pay a premium for these annuities, paid more fees over time, but received no benefit as the investments were already tax protected. Defendants filed a motion for summary judgment which was denied by the District Court. The District Court also summarily granted the motion for class certification in the Underlying Case without giving any explanation for certifying the nationwide federal securities class action. Prior to issuing an Order directing notice to the class and prior to issuing a follow up Order explaining the basis for class certification, it came to the District Court’s attention that plaintiffs in the Underlying Case failed to meet the deadline set by the District Court for expert disclosures. As such, the District Court struck plaintiffs’ experts, found that plaintiffs could no longer establish class wide damages, and therefore decertified the class; plaintiffs appealed, but the District Court was affirmed by the Ninth Circuit. Arising from these circumstances, Plaintiffs allege legal malpractice against their former class counsel (Milberg, as well as separate counsel from Washington D.C. and Arizona) based on negligence and breach of fiduciary duties; they now seek to certify the same nationwide class of plaintiffs that was summarily certified by the District Court in the Underlying Case.

STANDARD FOR CLASS CERTIFICATION2

Pursuant to Fed. R. Civ. Proc. 23 (“Rule 23”), the requirements for class certification are:

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
[426]*426(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
(b)Types of Class Actions. A class action maybe maintained if Rule 23(a) is satisfied and[3]
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.

“Parties seeking class certification bear the burden of demonstrating that they have met each of the four requirements of [Rule] 23(a) and at least one of the requirements of Rule 23(b).” Ellis v. Costco Wholesale Corporation, 657 F.3d 970, 979-980 (9th Cir.2011). A rigorous analysis of the Rule 23 factors is required to ensure that class certification is warranted. See Id. at 980. “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. ... Frequently [the required] rigorous analysis will entail some overlap with the merits of the plaintiffs underlying claim. That cannot be helped. [T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action.” Wal-Mart Stores, Inc. v. Dukes, -U.S. --, 131 S.Ct. 2541, 2551-2552, 180 L.Ed.2d 374 (2011).

DISCUSSION

NUMEROSITY

A proposed class satisfies the numerosity requirement if “the class is so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). The record reflects that the class may exceed one million members; 4 Defendants do not dispute numerosity. The Court finds that numerosity is satisfied.5

RULE 23(b)(3) AND CHOICE OF LAW ISSUES

Defendants argue that the law of up to fifty states is implicated in this case inasmuch as Plaintiffs assert a nationwide class action based on state causes of action for legal malpractice stemming from negligence and breach of fiduciary duties. Defendants further argue that Plaintiffs have failed to meet their burden to fully address the choice of law issues implicated in this case and failed to show that Rule 23(b)(3) has been satisfied.6 See Milberg’s Response at 19-26. The Court agrees.

[427]*427 Law of the Case and Estoppel

Plaintiffs initially argue that Defendants’ choice of law arguments can not be considered by the Court. First, Plaintiffs assert that the Court has definitively ruled that Arizona law is the sole law that applies in this case, and therefore it is the law of the case. See Reply at 2-4. Second, Plaintiffs argue that estoppel applies to bar Defendants from raising the choice of law issues. The Court disagrees.

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Related

Bobbitt v. Milberg, LLP
D. Arizona, 2021
Roberts v. C.R. England, Inc.
318 F.R.D. 457 (D. Utah, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
285 F.R.D. 424, 2012 U.S. Dist. LEXIS 135755, 2012 WL 4125848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bobbitt-v-milberg-llp-azd-2012.