United States District Court, W.D. Arkansas, Texarkana Division
DAVID BRADEN and DALE BROWN, individually and on behalf of all others similarly situated PLAINTIFFS
FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN DEFENDANT
O. Hickey United States District Judge
the Court is Defendant Foremost Insurance Company Grand
Rapids, Michigan's Motion for Judgment on the Pleadings.
(ECF No. 48). Plaintiffs David Braden and Dale Brown filed a
response. (ECF No. 54). Defendant filed a reply. (ECF No.
64). The Court finds the matter ripe for consideration.
assert that Defendant unlawfully depreciated labor in
calculating their payment obligations under the parties'
insurance contracts. In their Class Action Complaint,
Plaintiffs allege that Arkansas law prohibits an insurance
company from depreciating the cost of labor. Plaintiffs claim
that, by depreciating this cost in initial "actual cash
value" payments made to insureds, Defendant breached its
contract with Plaintiffs.
December 1, 2016, Plaintiffs filed a motion for class
certification, seeking to certify a class of individuals
defined as follows:
All persons and entities that received "actual cash
value" payments, directly or indirectly, from Foremost
for loss or damage to a dwelling or other structure located
in the State of Arkansas, such payments arising from events
that occurred on or after November 21, 2008, where the cost
of labor was depreciated.
Excluded from the Class are: (1) all persons and entities
that received payment from Foremost in the full amount of
insurance shown on the declarations page; (2) Foremost and
its affiliates, officers, and directors; (3) members of the
judiciary and their staff to whom this action is assigned;
(4) all persons who have a pending bankruptcy or whose claims
were discharged in a bankruptcy proceeding; (5) all persons
who executed a release of the claims set forth herein; and
(6) Plaintiffs' counsel.
(ECF No. 43). Plaintiffs state that the putative class period
is based on the applicable five-year statute of limitations
under Arkansas law, and the fact that the five-year period
was tolled under American Pipe & Construction Co. v.
Utah, 414 U.S. 538 (1974) during the pendency of Keller
v. FCOA, LLC, d/b/a/ Foremost Insurance Co., No.
4:14-cv-4002-SOH, which was filed with this Court on November
21, 2013, and was dismissed with prejudice on January 8,
February 16, 2017, Defendant filed the instant motion for
judgment on the pleadings, moving the Court to limit
Plaintiffs' putative class period to only include claims
accruing on or after December 10, 2010, five years prior to
when this lawsuit was filed. Specifically, Defendant argues
that all putative class claims accruing before that date fall
outside of the applicable five-year limitations period,
barring them under Arkansas law. Defendant argues further
that American Pipe tolling cannot be applied in this
context to save the time-barred claims.
argue in response that American Pipe tolling applies
to save the pre-December 10, 2010 claims. Plaintiffs also
argue as a threshold matter that the Court need not reach the
instant motion's merits because the relief sought is
premature. Specifically, Plaintiffs argue that the putative
class members are not presently parties to the case who are
subject to being bound by any judgment, and this issue would
instead be properly raised after the class-certification
district court is required to rule on the issue of class
certification "[a]t an early practicable time after a
person sues or is sued as a class representative."
Fed.R.Civ.P. 23(c)(1). "As a general rule, courts decide
class certification motions before addressing dispositive
motions." Hartley v. Suburban Radiologic
Consultants, Ltd., 295 F.R.D. 357, 367 (D. Minn. 2013)
(citing Hyman v. First Union Corp., 982 F.Supp. 8,
11 (D.D.C. 1997)) (internal quotation marks omitted). This is
because "a plaintiff who files a proposed class action
cannot legally bind members of the proposed class before the
class is certified." Standard Fire Ins. Co. v.
Knowles, 568 U.S. 588, 593 (2013). "Accordingly,
any ruling on the merits of a proposed class action that
precedes class certification-whether in defendants' or
plaintiffs' favor-has no binding effect on any unnamed
class member." Hartley, 295 F.R.D. at 367;
see also Smith v. Bayer Corp., 564 U.S. 299, 313
(2011) (stating that "a nonnamed class member is [not] a
party to the class-action litigation before the class is
certified') (emphasis in original).
have recognized the right of defendants to seek a ruling on
the merits of putative class claims prior to class
certification. See Toben v. Bridgestone Retail
Operations, LLC, 751 F.3d 888, 896 (8th Cir. 2014);
Hartley, 295 F.R.D. at 367. However, such a
pre-certification ruling on the merits will bind only the
named plaintiff, and will not bind any putative class member.
Hartley, 295 F.R.D. at 368.
instant motion for judgment on the pleadings argues that all
putative class members whose claims arose prior to December
10, 2010 are time-barred due to the applicable statute of
limitations. Thus, Defendant asks the Court to limit the
putative class period to include only claims arising after
that date. Plaintiffs argue that Defendant's requested
relief is an impermissible pre-certification limitation on
putative class members, as it seeks dismissal of putative
claims on unnamed members of an uncertified class. Defendant
argues that it is not seeking a determination of any specific
putative class member's claim, but rather is seeking to
limit the rights of the named plaintiffs to represent
putative class members with time-barred putative claims.
Court agrees with Plaintiffs. Defendant's motion for
judgment on the pleadings does not seek dismissal of any of
Plaintiff Braden or Plaintiff Brown's claims. If the
Court were to grant the relief Defendant seeks-limiting the
class period-it would, in effect, require the Court to
dismiss certain putative class claims. The pre-certification
stage of litigation is not the proper time to address this
issue. Instead, this matter is better raised following class
certification, should a class be certified in this case.
reasons stated above, the Court finds that Defendant's
motion (ECF No. 48) should be and hereby is
DENIED as premature at this time. If the
Court orders certification of a class in this case,