In Hull v. Viega, Inc., 2013 WL 759376 (D. Kan., Feb. 27, 2013), Judge Robinson found herself addressing more questions than she was able to answer. One question she did answer was the timeliness of the Defendants’ Motion to Strike the class allegations. This putative class action asserted claims on behalf of owners of homes and buildings with Defendants’ brass fittings, and those who had paid for repairs or damages caused by these allegedly defective brass fittings, seeking damages under various states’ deceptive trade practices acts, as well as under various common law claims.

Defendants raised twenty questions in their Motion to Dismiss, which the Court described as a “scorched earth approach” that was both “multi-layered” and “dismissive” in that it required the Court to independently research various nuances of Nevada law. Defendants’ Reply also incorporated rulings and raised new issues from a recent order in parallel action pending in the District of Nevada. Plaintiffs did not ask for a sur-reply. Not surprisingly, the Court found itself confronted with more questions than answers, and denied the Motion to Dismiss without prejudice subject to further briefing.

The Court found the Motion to Strike the Class Allegations a closer call, but found itself hampered by Plaintiffs’ failure to address the merits of the class issues. Instead, the Plaintiffs merely complained that any analysis of class certification issues was premature at the pleading stage. The Court summarily dismissed that concern, noting that Fed. R. Civ. P. 23(d)(1)(D) specifically authorizes a motion to strike class allegations, and recounted that numerous federal courts have stricken class allegations at the pleading stage when it was apparent that they suffered from fatal class defects. The Court specifically identified what it viewed as likely fatal choice of law, conflicts of law, and ascertainability issues, for which Plaintiffs had no answer apart from vague promises that these issues could be resolved prior to class certification briefing. Nor was the Court able to identify any additional discovery that might have cured these ailments. While recognizing that it had the authority to strike the class allegations, the Court declined to do so, and denied the Motion to Strike without prejudice, subject to additional briefing.

Aside from the clear restatement of the Court’s authority to strike class allegations at any stage, the odd procedural posture makes it difficult to draw further conclusions from this order. The Court’s denial of both motions seems to be wholly an artifact of the Court’s discomfort with either Defendants’ shotgun approach, or Plaintiffs’ refusal to engage the substantive issues. Hopefully Defendants will be able to focus their attack, and Plaintiffs will be able to provide a more substantive response when these issues are rejoined. We will keep an eye on this case and report what develops.

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