United States District Court, S.D. New York
IN RE GENERAL MOTORS LLC IGNITION SWITCH LITIGATION This Document Relates To All Actions
MEMORANDUM OPINION AND ORDER
M. FURMAN, UNITED STATES DISTRICT JUDGE.
Plaintiffs' Motion for Leave to Amend the Fourth Amended
Consolidated Complaint and New GM's Partial Cross-Motion
to Dismiss and/or Strike Plaintiffs' Proposed Fifth
Amended Consolidated Complaint]
multidistrict litigation (“MDL”), familiarity
with which is presumed, Plaintiffs bring economic-loss claims
against Defendant General Motors LLC (“New GM”)
on behalf of a broad putative class of General Motors car
owners and lessors whose vehicles were subject to recalls
beginning in February 2014. In prior opinions addressing
partial motions to dismiss filed by New GM, the Court ruled
on the viability of Plaintiffs' independent claims under
federal law and the law of sixteen jurisdictions. See In
re: Gen. Motors LLC Ignition Switch Litig., No. 14-
MC-2543 (JMF), 2017 WL 2839154, at *2 (S.D.N.Y. June 30,
2017), as amended on reconsideration by No.
14-MC-2543 (JMF), 2017 WL 3443623 (S.D.N.Y. Aug. 9, 2017);
In re: Gen. Motors LLC Ignition Switch Litig., No.
14-MD-2543 (JMF), 2016 WL 3920353, at *3 (S.D.N.Y. July 15,
2016); see also In re Gen. Motors LLC Ignition Switch
Litig., No. 14-MC- 2543 (JMF), 2017 WL 3382071 (S.D.N.Y.
Aug. 3, 2017) (ruling on New GM's partial motion for
summary judgment with respect to Plaintiffs' successor
liability claims). Following the Court's most recent
decision, Plaintiffs filed a motion for leave to amend the
currently operative Fourth Amended Consolidated Complaint
(“FACC”). (Docket No. 4522). In their Proposed
Fifth Amended Consolidated Complaint (“PFACC”),
Plaintiffs seek to (1) add seven new named Plaintiffs and
proposed class representatives; (2) remove twenty-four named
Plaintiffs previously dismissed for failure to complete
discovery; and (3) remove nine named Plaintiffs who have
provided written consent to dismiss their claims. (Docket No.
4522 (“Pls' Mem.”), at 4). New GM opposes the
motion, and has also filed a cross-motion to dismiss or
strike certain claims in the PFACC. (Docket No. 4704).
review of the parties' submissions (Docket Nos. 4522,
4680, 4704, 4767, 4775), the Court grants Plaintiffs'
motion for leave to amend. In general, when a certified or
putative class is left without adequate representation,
courts hold that adding a new class representative is
appropriate, even required, to protect class interests.
See In re Nat'l Austl. Bank Sec. Litig., No.
03-CV-6537 (BSJ), 2006 WL 3844463, at *3 (S.D.N.Y. Nov. 8,
2006) (“[C]ourts not only may, but should,
‘respond to the pre-certification mooting of a class
representative's claims by permitting substitution of a
new class representative.'” (quoting In re
Thornburgh, 869 F.2d 1503, 1509 (D.C. Cir. 1989));
see also In re Currency Conversion Fee Antitrust
Litig., No. M 21-95 (WHP), 2005 WL 3304605, at *3
(S.D.N.Y. Dec. 7, 2005) (finding that when a “class
representative become inadequate, substitution of an adequate
representative is appropriate to protect the interests of the
class”); Manual for Complex Litigation (Fourth) §
21.26 (Fed. Judicial Ctr. 2004) (“Later replacement of
a class representative may become necessary if, for example,
the representative's individual claim has been mooted or
otherwise significantly altered.”). Here, housekeeping
aside, that is the reason for Plaintiffs' proposed
amendments. Each new Plaintiff that they seek to add fills a
gap in class representation due to (in Plaintiffs' words)
“natural attrition” or “death by legal
sword.” (Pls' Mem. 8; see Id. 5-6; Docket
No. 4522, Ex. B (“PFACC Redline”), at
¶¶ 23-43, 109-22, 231-45, 248-49, 254-59).
contends that leave to amend should nonetheless be denied
because Plaintiffs were not sufficiently diligent in
proposing the new representatives and because amendment would
be prejudicial. (Docket No. 4775 (“GM Reply”), at
2-3). With respect to the former argument, the
Court did previously state that whether Plaintiffs should be
permitted to amend might turn on “who knew what and
when.” (GM Reply 2 (quoting August 11, 2017 Hr'g
Tr. at 18)). Upon reflection, however, what Plaintiffs had to
“know” was not only that there were new potential
Plaintiffs, but also that there was need to fill a class
representative gap; from that standpoint, the Court is not
prepared to say that Plaintiffs were insufficiently diligent
to establish “good cause” within the meaning of
Rule 16(b)(4) of the Federal Rules of Civil Procedure.
See, e., g., Parker v. Columbia Pictures
Indus., 204 F.3d 326, 340 (2d Cir. 2000)
(“‘[G]ood cause' depends on the diligence of
the moving party.”). With respect to the latter argument,
New GM fails to establish that it would be prejudiced by
allowing amendment. Among other things, because discovery is
currently limited to three “bellwether” states
(California, Missouri, and Texas), granting Plaintiffs'
motion would require New GM to take no more than two
additional depositions by December 15, 2017. (See
Docket No. 4499, at ¶ 5; Pls' Reply 3). New GM
argues that adding seven new Plaintiffs would also require it
“to engage in further unnecessary motion practice on
meritless claims.” (See GM Opp. 5-6; GM Reply
1, 4-5). But expending “time, effort and money”
to litigate a matter, without more, does not constitute
prejudice. Pasternack v. Shrader, 863 F.3d 162, 174
(2d Cir. 2017). And whether the claims have merit is not a
question for this stage, except insofar as adding such claims
would be “futile.” See, e.g.,
Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d
162, 185 (2d Cir. 2012).
leaves the question of futility, which New GM raises as a
basis of both its opposition to Plaintiffs' motion for
leave to amend and its cross-motion to dismiss or strike.
(See GM Opp. 7-10; GM Reply 4-5). Significantly,
only two of New GM's arguments are truly contested:
first, that five of the seven new Plaintiffs fail to plead
sufficient “contact with or connection to” New GM
(GM Opp. 9), or “any actionable conduct” by New
GM (GM Reply 1), to support independent claims against New
GM; and, second, that a July 2017 ruling by the Bankruptcy
Court, see In re Motors Liquidation Co., 571 B.R.
565, 575 (Bankr. S.D.N.Y. 2017), bars used car purchasers of
non-Delta-Ignition-Switch-Defect Old GM vehicles, including
five of the new Plaintiffs, from bringing claims against New
GM based on Old GM conduct. (GM Opp. 8). The Court defers
both arguments to another day, however. The Court declines to
consider the first argument because it is inadequately
briefed: New GM devotes little more than a few stray
sentences to it, and cites no authority (other than the 2016
Second Circuit decision on the Sale Order, which is cited as
background for the definition of “independent
claims”) in support of the argument. See also In re
Gen. Motors, 2017 WL 2839154 at *40-45 (finding that at
least some of the claims of similarly situated plaintiffs -
who had purchased used Old GM vehicles after the Sales Order
from private, non-GM sellers and alleged only minimal contact
with New GM - were sufficient to survive New GM's motion
to dismiss). The Court declines to consider the second
argument because the Bankruptcy Court's ruling is the
subject of pending appeals to this Court. There is little
point in addressing the argument until the appeals are
foregoing reasons, the Court GRANTS Plaintiffs' motion
for leave to amend the FACC and DENIES New GM's motion to
dismiss and/or strike, except to the extent that it concerns
claims that the Court previously dismissed and claims on
behalf of new Plaintiffs that the Court previously found
unviable for similarly situated Plaintiffs.
Clerk of Court is directed to terminate Docket Nos. 4522 and
 GM argues that Plaintiffs'
proposed amendment is independently precluded by Order No.
50, which granted leave to file an earlier version of the
consolidated class action complaint and provided that
“it shall be presumed that no further amendment will be
permitted, except upon good cause shown as to factual matters
and claims that are thereafter revealed by discovery or
alleged for the first time in cases that are transferred to
or filed in the MDL.” (Docket No. 875 (“Order No.
50”) ¶ 4; see Docket No. 4680 (“GM
Opp.”), at 1). Putting aside the fact that Order No. 50
created only a “presum[ption]” (a fact that New
GM conspicuously leaves out), the Court plainly has
discretion to ensure that the limits set forth in its prior
Order “do not result in prejudice or hardship” to
Plaintiffs and members of the putative classes at issue.
Kassner v. 2d Avenue Delicatessen Inc., 496 F.3d
229, 243-44 (2d Cir. 2007).
 Admittedly, the arguable need for new
Plaintiffs from California, Maryland, and Virginia was known
before Plaintiffs filed the FACC, as those states were the
subject of the Court's first motion-to-dismiss ruling in
2016. (See Docket No. 3356). But only one of the
seven newly proposed Plaintiffs contacted Lead Counsel before
the FACC was filed - and just two days before, at that.
(See Docket No. 4767 (“Pls' Reply”),
at 2 n.3). And in any event, it would be perverse to require
Lead Counsel to seek leave to amend any time the need for a
new Plaintiff arises, as it “would simply burden the
Court and the parties with redundant, virtually identical
motions.” Scott v. Chipotle Mexican Grill,
Inc., 300 F.R.D. 193, 198-99 (S.D.N.Y. 2014).
 There is not much daylight between the
two sides with respect to New GM's other argument, which
concerns Plaintiffs' repleading of claims that the Court
previously dismissed and pleading of claims on behalf of new
Plaintiffs that the Court previously found “unviable
for similarly situated plaintiffs.” (Pls' Reply 7
& n.19; see GM Opp. 11-13; GM Reply 5-6).
Plaintiffs acknowledge that they include these claims only
“for purposes of appeal” and do not seek
“to relitigate” them. (Pls' Reply 8; see
also, e.g., Docket No. 4522, Ex. A
(“PFACC”), at 1 n.1, 20 n.10). Accordingly, those