Lowenberg v. Illinois Mutual Life Insurance Company

N.D. California

Lowenberg v. Illinois Mutual Life Insurance Company

DecidedApril 27, 2023

Docket4:21-cv-09739

StatusUnknown

This text of Lowenberg v. Illinois Mutual Life Insurance Company (Lowenberg v. Illinois Mutual Life Insurance Company) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lowenberg v. Illinois Mutual Life Insurance Company, (N.D. Cal. 2023).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FRANK LOWENBERG, et al., Case No. 21-cv-09739-HSG

8 Plaintiffs, ORDER DENYING MOTION FOR LEAVE 9 v. Re: Dkt. No. 68 10 ILLINOIS MUTUAL LIFE INSURANCE COMPANY, 11 Defendant. 12 FRANK LOWENBERG, 13 Case No. 22-cv-05329-HSG Plaintiff, 14 ORDER DENYING MOTION TO v. STRIKE OR DISMISS 15 ILLINOIS MUTUAL LIFE INSURANCE Re: Dkt. No. 19 16 COMPANY,

17 Defendant. 18 19 These are two related cases—one individual and one proposed class action—in which 20 Plaintiff alleges that Defendant unlawfully terminated health insurance policies. Plaintiff 21 requested leave to file a first amended complaint in the individual case, No. 21-cv-09739-HSG, 22 Dkt. No. 68, and Defendant filed a motion to strike or dismiss in the proposed class action, No. 23 22-cv-05329-HSG, Dkt. No. 19. The Court held a hearing on the motions. Since the Court 24 explained its reasoning at the hearing, it will only briefly summarize its findings here. 25 The Court denied the motion for leave file a first amended complaint at the hearing. See 26 No. 4:21-cv-09739-HSG, Dkt. No. 81. As the Court noted, Plaintiff has not shown “good cause” 27 for modifying the schedule under Federal Rule of Civil Procedure 16(b), which applies when a 1 Recreations, Inc., 975 F.2d 604, 607–09 (9th Cir. 1992). Plaintiff was not diligent in seeking to 2 amend the complaint, which is the primary consideration under Rule 16. See Zivkovic v. S. Cal. 3 Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (“If the party seeking the modification ‘was not 4 diligent, the inquiry should end . . . .’” (quoting Johnson, 975 F.2d at 609)). As mentioned at the 5 hearing, Plaintiff’s ability to file a related class action three days before the deadline for amending 6 the complaint undermines any credible argument that Plaintiff was diligent. Moreover, there are 7 no newly discovered facts that warrant amendment, and further prolonging this case—in which 8 Plaintiff’s counsel has repeatedly missed deadlines—would unduly prejudice Defendant. 9 As to the motion to strike or dismiss, the Court stated at the hearing it was inclined to deny 10 the motion, and it does so now. Defendant’s arguments are premature. The Court declines to 11 conduct a choice-of-law or class certification analysis at this stage; it simply does not have the 12 information required to assess such granular questions. See, e.g., Forcellati v. Hyland’s, Inc., 876 13 F. Supp. 2d 1155, 1159 (C.D. Cal. 2012) (“Courts rarely undertake choice-of-law analysis to strike 14 class claims at this early stage in litigation.”); Milan v. Clif Bar & Co., 489 F. Supp. 3d 1004, 15 1008 (N.D. Cal. 2020) (denying as premature a request to conduct a choice-of-law analysis). 16 Defendant also challenges Plaintiff’s standing, but does not actually argue that Plaintiff has failed 17 to meet the requirements of Article III. As to whether Plaintiff may bring claims on behalf of 18 another state’s residents, the Court declines to reach that question at this time. In re Toyota RAV4 19 Hybrid Fuel Tank Litig., 534 F. Supp. 3d 1067, 1125 (N.D. Cal. 2021) (exercising discretion to 20 “defer ruling on Plaintiffs’ nationwide class allegations until a later stage of the proceedings”). 21 Further, in response to the Court’s concern that class certification seems improbable, the parties 22 agreed to conduct limited discovery on the issue of numerosity, which may result in Plaintiff 23 dropping the class action entirely. See No. 4:22-cv-05329-HSG, Dkt. No. 33. Thus, the Court 24 DENIES the motion to strike or dismiss without prejudice. Id., Dkt. No. 19. 25 // 26 // 27 // 1 The parties have been directed to conduct targeted discovery regarding how many 2 || members are in the putative class and file a joint status report by May 31, 2023. See No. 4:22-cv- 3 05329-HSG, Dkt. No. 33. The Court will not address the case schedule until then. This order 4 || terminates Dkt. No. 30 in Case No. 4:22-cv-05329-HSG. The parties are DIRECTED to meet 5 and confer and submit a new stipulation and proposed order selecting private mediation and 6 setting a deadline. 7 IT IS SO ORDERED. 8 Dated: 4/27/2023 9 . ° naa 4: S. GILLIAM, JR. / 10 United States District Judge 11 12

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FRANK LOWENBERG, et al., Case No. 21-cv-09739-HSG

8 Plaintiffs, ORDER DENYING MOTION FOR LEAVE 9 v. Re: Dkt. No. 68 10 ILLINOIS MUTUAL LIFE INSURANCE COMPANY, 11 Defendant. 12 FRANK LOWENBERG, 13 Case No. 22-cv-05329-HSG Plaintiff, 14 ORDER DENYING MOTION TO v. STRIKE OR DISMISS 15 ILLINOIS MUTUAL LIFE INSURANCE Re: Dkt. No. 19 16 COMPANY,

17 Defendant. 18 19 These are two related cases—one individual and one proposed class action—in which 20 Plaintiff alleges that Defendant unlawfully terminated health insurance policies. Plaintiff 21 requested leave to file a first amended complaint in the individual case, No. 21-cv-09739-HSG, 22 Dkt. No. 68, and Defendant filed a motion to strike or dismiss in the proposed class action, No. 23 22-cv-05329-HSG, Dkt. No. 19. The Court held a hearing on the motions. Since the Court 24 explained its reasoning at the hearing, it will only briefly summarize its findings here. 25 The Court denied the motion for leave file a first amended complaint at the hearing. See 26 No. 4:21-cv-09739-HSG, Dkt. No. 81. As the Court noted, Plaintiff has not shown “good cause” 27 for modifying the schedule under Federal Rule of Civil Procedure 16(b), which applies when a 1 Recreations, Inc., 975 F.2d 604, 607–09 (9th Cir. 1992). Plaintiff was not diligent in seeking to 2 amend the complaint, which is the primary consideration under Rule 16. See Zivkovic v. S. Cal. 3 Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (“If the party seeking the modification ‘was not 4 diligent, the inquiry should end . . . .’” (quoting Johnson, 975 F.2d at 609)). As mentioned at the 5 hearing, Plaintiff’s ability to file a related class action three days before the deadline for amending 6 the complaint undermines any credible argument that Plaintiff was diligent. Moreover, there are 7 no newly discovered facts that warrant amendment, and further prolonging this case—in which 8 Plaintiff’s counsel has repeatedly missed deadlines—would unduly prejudice Defendant. 9 As to the motion to strike or dismiss, the Court stated at the hearing it was inclined to deny 10 the motion, and it does so now. Defendant’s arguments are premature. The Court declines to 11 conduct a choice-of-law or class certification analysis at this stage; it simply does not have the 12 information required to assess such granular questions. See, e.g., Forcellati v. Hyland’s, Inc., 876 13 F. Supp. 2d 1155, 1159 (C.D. Cal. 2012) (“Courts rarely undertake choice-of-law analysis to strike 14 class claims at this early stage in litigation.”); Milan v. Clif Bar & Co., 489 F. Supp. 3d 1004, 15 1008 (N.D. Cal. 2020) (denying as premature a request to conduct a choice-of-law analysis). 16 Defendant also challenges Plaintiff’s standing, but does not actually argue that Plaintiff has failed 17 to meet the requirements of Article III. As to whether Plaintiff may bring claims on behalf of 18 another state’s residents, the Court declines to reach that question at this time. In re Toyota RAV4 19 Hybrid Fuel Tank Litig., 534 F. Supp. 3d 1067, 1125 (N.D. Cal. 2021) (exercising discretion to 20 “defer ruling on Plaintiffs’ nationwide class allegations until a later stage of the proceedings”). 21 Further, in response to the Court’s concern that class certification seems improbable, the parties 22 agreed to conduct limited discovery on the issue of numerosity, which may result in Plaintiff 23 dropping the class action entirely. See No. 4:22-cv-05329-HSG, Dkt. No. 33. Thus, the Court 24 DENIES the motion to strike or dismiss without prejudice. Id., Dkt. No. 19. 25 // 26 // 27 // 1 The parties have been directed to conduct targeted discovery regarding how many 2 || members are in the putative class and file a joint status report by May 31, 2023. See No. 4:22-cv- 3 05329-HSG, Dkt. No. 33. The Court will not address the case schedule until then. This order 4 || terminates Dkt. No. 30 in Case No. 4:22-cv-05329-HSG. The parties are DIRECTED to meet 5 and confer and submit a new stipulation and proposed order selecting private mediation and 6 setting a deadline. 7 IT IS SO ORDERED. 8 Dated: 4/27/2023 9 . ° naa 4: S. GILLIAM, JR. / 10 United States District Judge 11 12

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