The opinion of the court was delivered by: RICHARD HOLWELL, District Judge
Memorandum Opinion and Order
Plaintiffs brought this action on behalf of themselves and
similarly situated African-Americans against Ford Motor Credit
Company ("Ford") alleging racial discrimination under the Equal
Credit Opportunity Act, 15 U.S.C. § 1691 et seq., ("ECOA").
Presently before the Court are plaintiffs' motions for class
certification and for an evidentiary hearing on class
certification. Nine additional individuals have also filed a
motion to intervene as plaintiffs. For the following reasons, the
motion to intervene is granted; the motions for class
certification and for an evidentiary hearing are denied without
This putative class action has a long history. The matter was
initiated on October 31, 2000, and originally assigned to the
Honorable Lawrence M. McKenna, United States District Court for
the Southern District of New York. On December 29, 2000,
defendant Ford Motor Credit Company ("Ford") moved for (and was
ultimately granted) leave to file a motion to dismiss of up to 50 pages in
length. Since then, virtually every briefing in this action has
included a request for a sur-reply or a page-limit extension or
both. The lengthened briefing has also been accompanied by two
judicial reassignments first to the Honorable Lewis A. Kaplan,
United States District Court for the Southern District of New
York, on September 23, 2003, and then to this Court on November
6, 2003 and by protracted discovery, with the class discovery
completion date extended five times.
On January 9, 2004, plaintiffs moved for class certification.
Ford opposes class certification on the grounds that, inter
alia, the named plaintiffs are not adequate class
representatives. (See Mem. in Opp'n to Pls.' Mot. for Class
Certification at 11-16.) Plaintiffs contest this assertion, see
Pls.' Reply Mem. of Law in Further Supp. of their Mot. for Class
Certification at 12-14; however, nine additional individuals
moved to intervene as plaintiffs and putative class
representatives on March 17, 2004.
Although the motion to intervene was filed one day after
plaintiffs had filed their reply brief in their motion for class
certification, the reply brief was not the last word on class
certification. On March 30, 2004, Ford moved for (and was
granted) leave to file a sur-reply to plaintiffs' motion for
class certification. Then, on June 7, 2004, plaintiffs moved for
an evidentiary hearing on their motion for class certification.
On June 14, 2004, plaintiffs filed "supplemental authority" in
further support of their motion for class certification. Ford
duly responded to both of these briefs. The last document the
Court received regarding class certification was a reply
memorandum in further support of plaintiff's motion for an
evidentiary hearing, filed July 1, 2004. Thus, the class action issues are fully briefed and are ripe for
determination but for the impact of the pending motion to
Subpart (b) of Rule 24 of the Federal Rules of Civil Procedure
allows parties to intervene in an action "when an applicant's
claim or defense and the main action have a question of law or
fact in common." Fed.R.Civ.P. 24(b). Though a court has
discretion in deciding whether to allow "permissive"
intervention, the court must "consider whether the intervention
will unduly delay or prejudice the adjudication of the rights of
the original parties." Id.
Ford does not dispute that the proposed plaintiffs have a
question of law or fact in common with the current plaintiffs.
Rather, Ford argues that "[a]llowing intervention at this late
date . . . would essentially restart the case from plaintiffs'
side, and the burden of this `do-over' would fall almost entirely
on [Ford]." (Mem. in Opp'n to Pls.' Mot. to Intervene at 5
(hereinafter "Intervene Opp'n").) Ford also argues that
plaintiffs' delay is inexcusable because the alleged inadequacy
of the currently proposed class representatives has been known
"to Plaintiffs' counsel since September 2002, at the
latest."*fn1 (Id. at 9.)
These arguments are not without merit. For whatever reason,
this case has proceeded tortuously. Indeed, the Second Circuit
has already noted "the normal utility of early decision of a
motion for class certification" in this case. Jones v. Ford
Motor Credit Co., 358 F.3d 205, 207 (2d. Cir. 2004) (reversing
decision dismissing counterclaims because "discretion under
subsection 1367(c) should not be exercised in this case until a
ruling on the Plaintiffs' motion for class certification").
Allowing the proposed plaintiffs to intervene would certainly
cause some delay in advancing the litigation and would burden
Ford with some additional and unexpected discovery. Furthermore,
the Court is concerned that plaintiffs have proposed the
additional plaintiffs at the eleventh hour.
However, at this stage of the litigation, the Court must decide
the most efficient way to move this matter forward, including the
most efficient way to address the related class certification
motion. Given Ford's arguments regarding the adequacy of the
presently named purported class representatives, the Court finds
that efficiency is best served by allowing intervention despite
the immediate delay and burden to Ford. See, e.g., Bronson v.
Crestwood Lake Section 1 Holding Corp., No. 89 Civ. 5386, 1990
WL 29366, at *2 (S.D.N.Y. Mar. 9, 1990) (allowing intervention
and deciding to "consider the pending motion for class
certification after the parties have submitted new briefs which
reflect [new plaintiff's] substitution as the named plaintiff").
Cf. Clarkson v. Coughlin, 783 F. Supp. 789, 795 (S.D.N.Y. 1992)
("From the time a class action is filed until the time a final
determination pursuant to Rule 23 is made, the action is treated
if the class existed for purposed of mootness. This provides
unnamed members of the plaintiff class an opportunity to
intervene in the action and to pursue their claims.").
The Court will re-open class discovery until September 15,
2004, for the limited purpose of allowing Ford to take discovery
as to the newly named plaintiffs. The Court finds that while this
discovery will cause some delay, such delay is neither undue nor lengthy. Indeed, in the context of this suit, the brief delay
and narrow additional discovery is not sufficiently prejudicial
to warrant denial of the motion for permissive intervention. The
Court is also heartened that Ford was able to depose the three
currently named plaintiffs with little burden on the same day and
expects that the additional discovery will proceed with similar
efficiency. The additional discovery might even streamline, and
thereby quicken, the litigation by removing the issue of adequacy
of representation from the class certification dispute.
For the foregoing reasons, the motion to intervene [96-1] is
GRANTED; the motions for class certification [89-1] and for an