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STEINBERG v. NATIONWIDE MUTUAL INSURANCE COMPANY

September 4, 2004.

STEPHEN R. STEINBERG, individually and on behalf of a class of policy-holders of Nationwide Mutual Insurance Company, Plaintiff,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant.



The opinion of the court was delivered by: ARTHUR SPATT, District Judge

MEMORANDUM OF DECISION AND ORDER

Presently before the Court are the following two motions: (1) a motion by the defendant Nationwide Mutual Insurance Company ("Nationwide" or the "defendant") to strike the legal arguments from the reply affidavit of D. Brian Hufford; and (2) a motion by the plaintiff Stephen R. Steinberg ("Steinberg" or the "plaintiff") for class certification pursuant to Federal Rule of Civil Procedure 23 (Fed.R. Civ. P.").

I. BACKGROUND

  A. Factual Background

  The following factual background is set forth in the Court's Memorandum of Decision and Order dated July 27, 2002. Familiarity with that decision is assumed; however, for the purposes of this motion, the Court repeats the pertinent facts.

  On an unspecified date, Nationwide sold Steinberg a contract for automobile insurance for his leased 1999 BMW 740I. The insurance contract states: "COMPREHENSIVE COVERAGE. We will pay for loss to your auto not caused by collision of upset. We will pay for the loss less your declared deductible." The contract defines the word deductible as "the amount of loss to be paid by the insured when a loss occurs." The contract also defines the word "loss" as "direct and accidental loss or damage to your auto including its equipment."

  The insurance contract also contains a provision entitled, "LIMITS OF PAYMENT." This section states, "ACTUAL CASH VALUE. The limit of our coverage is the cash value of your auto or its damaged parts at the time of loss. We will consider fair market value, age, and condition of the property at the time of loss to determine cash value. We may pay you directly for a loss. We may, at our option, replace your auto."

  In September 1999, the plaintiff's BMW engine was damaged by water that entered the engine and caused an "hydraulic lock." On behalf of Nationwide, an adjuster consented to the replacement of the engine and agreed to pay the repairing dealer an unspecified amount for the replacement engine and related work that was made necessary by the loss. The dealer repaired the automobile and Nationwide tendered a check to the plaintiff. However, the check did not reflect the sum upon which the dealer and the adjuster had agreed or the sum upon which the dealer and the plaintiff had agreed. Nationwide had subtracted from that agreed-upon sum the deductible, which is provided for in the insurance contract, and a "betterment charge" deduction of $563.17. The term "betterment" is not contained in the automobile insurance contract between Nationwide and Steinberg.

  Steinberg alleges that the deduction by Nationwide of the "betterment charge" constitutes a breach of the insurance contract between him and Nationwide because, under the contract, the only amount of the loss an insured must pay is the deductible. Steinberg further alleges that the term "deductible" as defined in the insurance contract does not reflect a "betterment charge." Steinberg also contends that Nationwide has breached the contract by applying the "betterment charge" to the loss of parts, such as the engine in the plaintiff's case.

  The complaint further alleges that, since on or about January 1, 1993, Nationwide has entered into automobile insurance contracts that are substantially similar to the contract described above with "millions" of people in every state except Hawaii, Massachusetts, and New Jersey. Steinberg seeks to maintain a class action on behalf of all individuals who entered into automobile insurance contracts with Nationwide and have had, since January 1, 1993, a collision or comprehensive loss (1) for which Nationwide paid the amount necessary for repair minus the deductible and a "betterment charge"; or (2) that was repaired at a Blue Ribbon Repair Shop where the insured paid a deductible and a "betterment charge."

  B. Procedural Background

  The plaintiff originally commenced this action against Nationwide on October 13, 1999, in the Supreme Court of the State of New York, Suffolk County. On November 24, 1999, Nationwide removed the action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. In papers dated December 9, 1999, the plaintiff moved to remand the action to state court on the ground that this Court lacked subject matter jurisdiction. In particular, the plaintiff argued that the amount in controversy did not exceed $75,000.

  In a decision and order dated April 6, 2000, Steinberg v. Nationwide, 91 F. Supp. 2d 540 (E.D.N.Y. 2000), this Court denied the plaintiff's motion for remand The Court held that, although it "[would] not aggregate the potential value of the class in order to sustain the $75,000 jurisdictional amount," the injunctive relief sought by the plaintiff furnishes the basis for federal jurisdiction. Steinberg, 91 F. Supp.2d at 543-44. The Court found that, with reasonable certainty, the imposition of an injunction prohibiting the practice of recognizing "betterment charges" would cause economic harm in excess of $75,000 to the defendant. Id. at 544. Accordingly, the Court concluded that the plaintiff's request for injunctive relief met the jurisdictional minimum of $75,000. Id.

  In papers dated September 12, 2001, Steinberg moved the Court for permission to file a Second Amended Complaint, which, he stated, would narrow the claims in the complaint. In particular, Steinberg sought to withdraw a claim that the defendant's use of used, reconditioned, or remanufactured parts when repairing a car is also a breach of contract. In papers dated September 19, 2001, Nationwide stated that it did not oppose the plaintiff's motion. In an order dated September 22, 2001, the Court granted the plaintiff's motion to file a Second Amended Complaint, and Steinberg filed the Second Amended Class Action Complaint on September 26, 2001.

  In papers dated October 5, 2001, Nationwide moved to dismiss the Second Amended Complaint on the ground that the Court lacked subject matter jurisdiction. Nationwide stated that Steinberg's Second Amended Complaint did not request the injunctive relief that this Court previously held satisfied the amount in controversy element of diversity jurisdiction. As such, Nationwide argued that the amount in controversy did not exceed $75,000 and that the Court must dismiss the complaint for lack of subject matter jurisdiction. Steinberg conceded that the request for injunctive relief was missing from his Second Amended Complaint and explained that he had inadvertently deleted the request. On October 24, 2001, Steinberg requested permission to supplement the pleading pursuant to Fed.R. Civ. P. 15(a) so as to include the request for injunctive relief.

  In an order dated July 27, 2002, the Court granted Nationwide's motion to dismiss the Second Amended Complaint. The Court also granted Steinberg's motion to file an amended complaint that differed from the Second Amended Complaint only in that it contained a request for injunctive relief. On August 7, 2002, Steinberg filed the Third Amended Class Action Complaint.

  II. DISCUSSION

  A. The Defendant's Motion to Strike Legal Argument from Reply Affidavit of D. Brian Hufford

  The defendant moves to strike the legal arguments from the reply affidavit of D. Brian Hufford in support of the plaintiff's motion for class certification. In response, the plaintiff moves to strike the legal arguments from the declaration of Adam S. Levy. A review of the reply affidavit shows that, unlike the Levy declaration, it raises a multitude of legal arguments and citations. Local Civil Rule 7.1 provides:
Except as otherwise permitted by the court, all motions and all oppositions thereto shall be supported by a memorandum of law, setting forth the points and authorities relied upon in support of or in opposition to the motion, and divided, under appropriate headings, into as many parts as there are points to be determined. Willful failure to comply with this rule may be deemed sufficient cause for the denial of a motion or for the granting of a motion by default.
Although the plaintiff did forth his legal arguments in his reply memorandum of law, his attorney's affidavit also contains a number of legal arguments. The legal arguments set forth in the affidavit are improper and have the effect of circumventing the Court's page limits on memoranda which is 10 pages for a reply memorandum. Accordingly, the Court grants the defendant's motion to strike the legal arguments set forth in the reply affidavit by the plaintiff's counsel.

  B. Standards for Class Certification

  In determining whether a putative class qualifies for certification, the only question is whether the requirements of Fed.R. Civ. P. 23 have been met. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974). The Court assumes the allegations in the complaint to be true, and the burden is on the plaintiff to prove that the putative class meets the four threshold requirements of Rule 23(a) and satisfies the requirements of at least one of the categories enumerated in Rule 23(b). See In re: Visa Check/Mastermoney Antitrust Litig., 280 F.3d 124, 133 (2d Cir. 2001); Caridad v. Metro-North Commuter RR, 191 F.3d 283, 291 (2d Cir. 1999); Vengurlekar v. Silverline Technologies, Ltd., 220 F.R.D. 222, 226 (S.D.N.Y. Nov. 2003).

  In deciding certification, courts must take a liberal rather than a restrictive approach in determining whether the plaintiff satisfies these requirements and may exercise broad discretion in weighing the propriety of a putative class. See In re NASDAQ Market — Makers Antitrust Litig., 169 F.R.D. 493, 504 (S.D.N.Y. 1996) (citing Korn v. Franchard Corp., 456 F.2d 1206, 1208-09 (2d Cir. 1972)); See also Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 69 (E.D.N.Y May 2000). Whether the plaintiffs have stated a cause of action or will prevail on the merits is not a consideration for resolution of a motion for class certification. See Vengurlekar, 220 F.R.D. at 226. While the district court must engage in a "rigorous analysis" to establish whether the plaintiff has met its burden of proof as to certification, Caridad, 191 F.3d at 291, such a determination must not evolve into a "preliminary inquiry into the merits." Eisen., 417 U.S. at 177.

  1. Rule 23(a) Requirements

  To qualify for class certification, the plaintiff must first prove that the putative class meets the four threshold requirements of Rule 23(a):
(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.
Fed.R. Civ. P. 23(a); See also In re Visa Check/Mastermoney Antitrust Litigation, 280 F.3d 124, 132-33 (2nd Cir. 2001).

  a. Numerosity

  Rule 23(a)(1), generally referred to as the numerosity requirement, requires that the class be "so numerous that joinder of all members is impracticable." Fed.R. Civ. P. 23(a)(1). `Impracticable,' in this context, is not to be confused with impossible. Rule 23(a)(1) only requires that, in the absence of a class action, joinder would be "difficult" or "inconvenient." Vengurlekar, 220 F.R.D. at 227 (internal quotations and citations omitted).

  b. Commonality

  The commonality requirement set forth in Rule 23(a)(2) requires a showing that common issues of fact or law exist and affect all class members. However, the individual circumstances of the class members can differ without precluding class certification. See Vengurlekar, 220 F.R.D. at 227. "The critical inquiry is whether the common questions are at ...


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