United States District Court, D. Colorado
DR. ALLEN FRIEDMAN and MICHAEL J. NELLIS, individually and on behalf of all others similarly situated,
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC., d/b/a DOLLAR RENT A CAR; DOLLAR RENT A CAR, INC.; and DTG OPERATIONS, INC. d/b/a/ DOLLAR RENT A CAR, Defendants. PAUL R. PEAVY, and WENDY REPOVICH, Plaintiff-Intervenors,
Wiley Y. Daniel Senior United States District Judge
This matter is before the Court in connection with three pending motions filed on July 15, 2015: (1) Plaintiffs’ Motion for Reconsideration or to Alter or Amend Court’s July 1, 2015 Order Vacating Class Certification and on Motion for Judgment on the Pleadings; (2) Plaintiffs’ Motion to Amend July 1, 2015 Order to Permit Certification for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b); and (3) Plaintiffs’ Motion for Certification of a Question of Law to the Colorado Supreme Court. All three of these motions relate to my Order of July 1, 2015, which granted Defendants’ Motion for Reconsideration Regarding Class Certification, denied Plaintiffs’ and Intervenor- Plaintiffs’ Motion for Class Certification, and granted in part and denied in part Defendants’ Motion for Judgment on the Pleadings and Motion to Strike with Respect to Plaintiffs’ Fourth Amended Complaint.
More specifically, in my Order of July 1, 2015, I granted Defendants’ motion to reconsider my previous decision that granted Plaintiffs’ Revised Motion for Class Certification, and found that Plaintiffs’ motion should now be denied. I found that Plaintiffs’ class action for damages under the Colorado Consumer Protection Act [“CCPA”] was barred under the plain language of Colo. Rev. Stat. § 6-1-113. I also denied Plaintiffs’ alternative attempt to certify a class on the unjust enrichment and breach of contract claims. Defendants’ Motion for Judgment on the Pleadings was granted to the extent it sought judgment on the class action claim for damages and denied as to the individual claims. Plaintiffs were ordered to file a Fifth Amended Complaint that removed the class allegations and dismissed claims, which was filed on July 21, 2015.
Plaintiffs now seek reconsideration of my July 1, 2015 Order denying their motion for class certification. Alternatively, they seek an amendment of that Order to include language pursuant to 28 U.S.C. § 1292(b) that would allow for an interlocutory appeal. Finally, Plaintiffs ask that the Court certify the question of whether Colo. Rev. Stat. § 6-1-113(2) can be interpreted to bar bringing, maintaining or certifying claims for relief brought on behalf of similarly situated putative class members for violations of the “prohibited acts” provisions of the CCPA to the Colorado Supreme Court.
A. Plaintiffs’ Motion for Reconsideration or to Alter or Amend Court’s July 1, 2015 Order
Plaintiffs argue that I erred in denying their motion for class certification, and assert that not reconsidering that ruling would be manifest error as the ruling is in derogation of the United States Supreme Court’s decision in Shady Grove Orthopedic Assoc's, P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010) and the Eleventh Circuit’s decision in Lisk v. Lumber One Wood Preserving, LLC, 792 F.3d 1331 (11th Cir. July 10, 2015). I construe my July 1, 2015 Order as an interlocutory order which “is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Raytheon Constructors, Inc. v. Asarco Inc., 368 F.3d 1214, 1217 (10th Cir. 2003). Indeed, “‘every order short of a final decree is subject to reopening at the discretion of the district judge.’” Elephant Butte Ir. Dist. of New Mexico v. U.S. Dep’t of Interior, 538 F.3d 1299, 1306 (10th Cir. 2008) (quotation omitted); see also Been v. O.K. Industries, Inc., 459 F.3d 1217, 1225 (10th Cir. 2007) (“district courts generally remain free to consider their earlier interlocutory orders”).
In deciding a motion to reconsider an interlocutory order, the court is not bound by the stricter standards for considering a Rule 59(e) or 60(b) motion. Trujillo v. Bd. of Educ. of Albuquerque Pub. Sch., 212 F. App’x 760, 765 (10th Cir. 2007). Instead, a court has “plenary power to revisit and amend interlocutory orders as justice requires.” Spring Creek Exploration & Prod. Co. v. Hess Bakken, No. 14-cv-00134-PAB-KMT, 2015 WL 3542699, at *2 (D. Colo. June 5, 2015). However, “in order to avoid the inefficiency which would attend the repeated re-adjudication of interlocutory orders, judges in this district have imposed limits on their broad discretion to revisit interlocutory orders.” Spring Creek, 2015 WL 3542699, at *2 (citing cases). “Regardless of the analysis applied, the basic assessment tends to be the same: courts consider whether new evidence or legal authority has emerged or whether the prior ruling was clearly in error.” Id.; see also Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (“Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice. Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party’s position, or the controlling law.”)
I first address Defendants’ contention that I should not consider Plaintiffs’ argument as it was raised for the first time in the motion for reconsideration. While I have discretion to not consider the issue, see Lincoln Gen. Ins. Co. v. Smith, 416 F. App’x 795, 802, I believe it should be considered on the merits in the interest of justice. Notably, the Lisk decision that Plaintiffs rely on, which addressed Shady Grove in the context of a statute similar to the CCPA, was not decided until after issuance of the Order of July 1, 2015. Moreover, I considered the statutory bar of class actions raised in Defendants’ prior motion for reconsideration which had not been properly developed in its initial briefing.
I now turn to the Shady Grove decision that is at the heart of Plaintiffs’ motion for reconsideration. In that case, the district court had dismissed a class action seeking statutory interest under a New York statute that precluded class actions to recover a penalty. The Second Circuit affirmed. In a split decision, the Supreme Court found that since the New York statute limited “a plaintiff’s power to maintain a class action”, it conflicted with the provisions of Fed.R.Civ.P. 23 which “creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.” Shady Grove, 559 U.S. at 397-400. Because the two could not be reconciled, the plurality opinion looked at whether the federal rule regulated procedure, noting that it if it did so, it would be “valid in all jurisdictions, with respect to all claims, regardless of its incidental effect upon state-created rights.” Id. at 410. It found that Fed.R.Civ.P. 23 regulated procedure and governed the issue, and thus reversed the Second Circuit’s decision. Id. at 409-10. The plurality opinion was authored by Justice Scalia and joined in by Justices Roberts, Thomas and Sotomayor. Justice Stevens issued a concurring opinion. Justices Ginsburg, Kennedy, Breyer, and Alito dissented. Thus, the opinion was split 4-1-4.
In Lisk, the Eleventh Circuit addressed Shady Grove’s applicability in the context of an Alabama statute that, like the CCPA, precluded class actions for consumer claims under the Alabama Deceptive Trade Practices Act (“ADTPA”). The district court had dismissed the class action under the ADTPA. Lisk, 792 F.3d at 1333. The Eleventh Circuit acknowledged that if the case were pending in an Alabama state court, the statute would preclude a class action. However, since the case was in federal court, it had to determine whether Fed.R.Civ.P. 23 applied or whether it was “displaced by the contrary provision of the ADTPA”. Id. at 1334. The Eleventh Circuit found that the Shady Grove decision governed, and that it “compels the same result here.” Id. However, it stated there was “room for debate only because of the Court’s split of 4-1-4. Id. at 1335. It found that even though the plurality opinion was joined by only four justices, Justice Stevens joined with the portion of the opinion that found under the federal Rules Enabling Act, “a state statute precluding class actions for specific kinds of claims conflicts with Rule 23 and so is displaced for claims in federal court so long as applying Rule 23 does not abridge, enlarge, or modify any substantive right.” Id. (internal quotation marks omitted). The five justices further found “that applying Rule 23 to allow a class action for a statutory penalty created by New York law did not abridge, enlarge, or modify a substantive right; Rule 23 controlled.” Id. The Lisk court stated:
There is no relevant, meaningful distinction between a statutorily created penalty of the kind at issue in Shady Grove, on the one hand, and a statutorily created claim for deceptive practices of the kind at issue here, on the other hand. Each is a creature of state law. For each, state law allows an injured person to seek redress in an individual action but precludes the person from maintaining a class action. The state's purpose in precluding class actions, while perhaps not completely clear, is essentially the same-to allow individual redress but to prelude class recoveries that, in the legislature's view, may go too far.
Id. at 1335-36. Thus, the Lisk court held that the Alabama statute restricting class actions, like the New York statute at issue in Shady Grove, did not apply in federal court. Rule 23 of the ...