Davis, J., dissenting:
The majority opinion found that the circuit court erred by refusing to permit
discovery on the issue of class certification in this case.
(See footnote 1)
I disagree, and therefore
respectfully dissent.
The majority noted that “where issues related to class certification are present,
reasonable discovery related to class certification issues is appropriate.” Maj. op. at 6. I
agree that there is certainly ample authority for granting discovery on the issue of class
certification. Indeed, “[c]ourts may permit discovery on the single issue of certification if
it is shown to be desirable.” Franklin D. Cleckley, Robin J. Davis & Louis J. Palmer, Jr.,
Litigation Handbook on West Virginia Rules of Civil Procedure 474 (2002) (footnote
omitted). See, e.g., DeBruyne v. Equitable Life Assur. Soc'y, 920 F.2d 457, 462 (7th Cir.
1990) (relating district court proceedings and acknowledging that district court had granted
request to conduct discovery of class certification issues).
(See footnote 2)
Importantly, however, the circuit court has discretion as to whether to allow
discovery on the issue of class certification. See Stewart v. Winter, 669 F.2d 328, 331 (5th
Cir. 1982) (“Whether discovery will be permitted in connection with a motion for a class
certification determination 'lies within the sound discretion of the trial court.'” (quoting
Kamm v. California City Dev. Corp., 509 F.2d 205, 209) (9th Cir. 1975))). Under the
particular facts of this case, I do not believe the circuit court abused that discretion as Ms.
Love failed to demonstrate that she would adequately protect the interests of the class as
required by Rule 23(a)(4) of the West Virginia Rules of Civil Procedure. It has been
explained that “'[a]dequacy of representation' means that the class representative has
common interests with unnamed class members and will vigorously prosecute the interests
of the class through qualified counsel.” Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346
(11th Cir. 2001) (emphasis added). In this case there was clearly no attempt to vigorously
prosecute the interests of the class. “Failure to timely move for certification of a class 'bears
strongly on the adequacy of representation that those class members might expect to
receive.'” In re Folding Carton Antitrust Litig., 88 F.R.D. 211, 214 (N.D. Ill. 1980) (quoting
East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 405, 97 S. Ct. 1891, 1897,
52 L. Ed. 2d 453 (1977)). In this case there was a lapse of approximately four-and-one-half
years during which there was no action in the case, other than the withdrawal of one of the
plaintiffs in 1998. This represents a plain failure to adequately protect the interests of the
class.
(See footnote 3)
Other courts have denied class certification under comparable circumstances. See
McCarthy v. Kleindienst, 741 F.2d 1406, 1412 (D.C. Cir. 1984) (commenting, in case where
motion for certification was filed three years after suit was filed, “we believe it was within
the District Court's broad discretion to rely upon the untimeliness of the class certification
motion, and the unfavorable consequences caused by the delay, as grounds for denying
certification.”); In re Folding Carton Antitrust Litigation, 88 F.R.D. 211 (finding inadequate
representation where motion to certify was filed more than four-years after the start of the
litigation and two and one-half years from the court's denial of an earlier motion to certify);
Sanders v. Faraday Labs., Inc., 82 F.R.D. 99, 103 (E.D.N.Y. 1979) (finding denial of class
certification appropriate as delay of four years and eleven months “together with plaintiff's
failure to complete discovery and the potential change in class membership, . . . poses a
substantial risk of misleading potential class members in the belief that their claims . . . were
being vigorously pressed and their interests protected.”) (footnote omitted). See also East
Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 404-05, 97 S. Ct. 1891, 1897,
52 L. Ed. 2d 453, 463 (finding class action status not proper on other grounds, but
commenting that plaintiffs' failure to move for class certification prior to trial was a “strong
indicat[ion]” that plaintiffs would not “'fairly and adequately protect the interests of the
class.'” (quoting from Fed. R. Civ. P. 23(a)). Due to the plaintiffs utter failure for more than
four years to pursue this case, or to take any action to protect the interests of the putative
class, I cannot conclude that the circuit court abused its discretion either by denying
discovery or by declining to grant class certification.
In view of the foregoing, I dissent. I am authorized to state that Justice Maynard joins me in this dissenting opinion.