Lowenberg v. Illinois Mutual Life Insurance Company

Opinion

FRANK LOWENBERG, et al., Case No. 21-cv-09739-HSG

Plaintiffs, ORDER DENYING MOTION FOR LEAVE v. Re: Dkt. No. 68 COMPANY, Defendant. FRANK LOWENBERG, Case No. 22-cv-05329-HSG Plaintiff, ORDER DENYING MOTION TO v. STRIKE OR DISMISS ILLINOIS MUTUAL LIFE INSURANCE Re: Dkt. No. 19

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

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