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BECKER v. CHICAGO TITLE INSURANCE COMPANY

United States District Court, E.D. Pennsylvania


February 4, 2004.

JULIE A. BECKER, et al.
v.
CHICAGO TITLE INSURANCE COMPANY, et al

The opinion of the court was delivered by: MICHAEL BAYLSON, District Judge

MEMORANDUM

Plaintiffs allege overcharging of notary fees in connection with real estate transactions. Presently before this Court are three motions by Defendants. Defendants First American Title Company and Olde City Abstract, Inc. have filed a Motion to Sever. Defendants First American Title Company, Olde City Abstract, Inc., Fidelity National Title Insurance Company, Fidelity National Title Insurance of New York, and Chicago Title Insurance Company have brought a Motion to Strike and all Defendants have brought a Motion to Dismiss. For the reasons that follow, the Motion to Sever will be granted, the Motions to Strike and Dismiss will each be granted in part and denied in part, and Plaintiffs will be given leave to file an amended complaint.

I. Factual and Procedural Background

  Plaintiffs in this case are individuals who, between June 15, 2001 and December 16, 2002, participated in real estate closings at which they paid fees for notary services. Plaintiffs allege that Defendants overcharged them for notary fees incurred at these real estate closings, in violation of the fee schedule of permissible notary charges set forth in the Pennsylvania Notary Page 2 Public Law, 57 P.S. § 147, et seq. ("Notary Public Law").*fn1 It is alleged that Defendants not only overlooked, but also encouraged, title clerks to overcharge consumers for notary fees at real estate closings. Defendants are corporations who were either the title underwriters for the policies issued in these transactions, or the title agents in these transactions, acting as agents for one of the title underwriters. No plaintiff is alleged to have engaged in a transaction involving more than one title agent or more than one title underwriter, so that each plaintiff is discretely connected with one pair of Defendants in this case, as indicated below: Page 3

 

Plaintiff Defendant Defendant Notary Settlement Title insurer Title agent charge Date
Julie Decker Conestoga Title Insurance ABCO-Abstracting $20.00 Sept. 4, Co. Company 2002
Michael and Stewart Title Insurance Aracor Search & Abstract $25.00 Oct. 25, Sharon Blimm Services, Inc. 2001
Joan and Paul Commonwealth Land Title Savings Abstract Co. $25.00 Nov. 28, Donahue Insurance Co. 2001
Jacquelyne Commonwealth Land Title Savings Abstract Co. $25.00 Feb. 27, Shines Insurance Co. 2002
Walter McCall Lawyers Title Insurance Abstract Professionals, $20.00 June 15, Co. Ltd. 2001
Kevin and Fidelity National Title Realty Land Transfer, LLC $25.00 August 28, Kirsten Small Insurance Co. 2002
Margaret E. Chicago Title Insurance Statewide Abstract Group, $6.00 May 28, Hildebrandt Co. Inc. 2002
Christine First American Title Olde City Abstract, Inc. $30.00 Dec. 16, Burke Insurance Co. 2002
Darryl Smith Fidelity National Title Weichert Closing Services, $25.00 May 8, Insurance of New York Inc. 2002
Plaintiffs' Amended Complaint raises the following claims:
Count One: Violation of the Real Estate Settlement Procedures Act ("RESPA") 12U.S.C. § 2603. et seq.
Count Two: Breach of Settlement Agreement (against only Chicago Title Insurance, Lawyers Title Insurance and Commonwealth Land Title Insurance Company)
Count Three: Negligent Supervision
Count Four: Civil Conspiracy
Count Five: Violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Cons. Stat. § 201-1 et seq. ("UTPCPL")
Count Six: Unjust Enrichment
  Plaintiffs filed their original Complaint on April 14, 2003. Defendants filed a Motion to Dismiss on July 23, 2003. Plaintiffs filed their Amended Complaint on September 4, 2003. All Page 4 Defendants filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on September 30, 2003 and Defendants First American Title Insurance Company and Olde City Abstract, Inc. filed a Motion to Sever and a Motion to Strike on September 30, 2003. Defendants Fidelity National Title Insurance of New York, Fidelity National Title Insurance Company, and Chicago Title Insurance Company joined the Motion to Strike on October 14, 2003. Briefing was completed by the parties on October 30, 2003. The Court held oral argument on all pending motions on January 22, 2004.

  This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331, as Plaintiffs raise a claim under RESPA, 12 U.S.C. § 2603 et seq., which states "Any action pursuant to the provisions of section 6, 8, or 9 [12 U.S.C. § 2605, 2607, or 2608] may be brought in the United States district court or in any other court of competent jurisdiction, for the district in which the property involved is located, or where the violation is alleged to have occurred." 12 U.S.C. § 2614 (2003). Venue is proper as the transactions in question occurred in the Eastern District of Pennsylvania.

 II. Parties

  Both the Motion to Sever and the subject matter jurisdiction issue in the Motion to Dismiss implicate which parties will be allowed to continue in this Court. Thus, for efficiency's sake, the Court will first dispose of those issues.

 A. Motion to Sever

  Defendants First American Title Insurance Company ("First American") and Olde City Abstract, Inc. ("Olde City") filed a Motion to Sever the allegations of Plaintiff Christine Burke Page 5 against them. Plaintiff Burke does not oppose the Motion.

  Federal Rule of Civil Procedure 20 permits joinder of multiple plaintiffs whose claims (1) "aris[e] out of the same transaction, occurrence, or series of transactions or occurrences" and (2) will present some "question of law or fact [in] common." Fed.R.Civ.P. 20(a). When parties fail to satisfy the requirements of Rule 20(a), they are considered to be misjoined and severable pursuant to Federal Rule of Civil Procedure 21. See Norwood Co. v. RLI Insurance Co. et al., 2002 WL 523946 at *2 (E.D. Pa. April 4, 2002), citing C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1683 at 475 (3d ed. 2001) (finding parties improperly joined because they did not meet the requirements of Fed.R.Civ.P. 20(a)).

  Defendants argue that each set of Plaintiff and Defendant title agent and Defendant title underwriter in this case involves a discrete set of claims arising out of a transaction independent from the others in this case. Thus, the first requirement of Rule 20 is not met. In addition, the fact that each set of Plaintiff and Defendants involves separate plaintiffs and companies, with different closing procedures, means that separate questions of fact will exist for each set of Plaintiff and Defendants, and thus the second requirement of Rule 20 is not met.

  In addition, at oral argument, the Court raised the issue of why, if Plaintiff Burke and the corresponding Defendants are severed, each set of Plaintiff and Defendants should not also be severed. The parties agreed that severing each set of Plaintiff and Defendants would be the appropriate course of action. In addition, at the Court's suggestion, the parties agreed, because there are common issues of law, that discovery and pretrial motions would be coordinated among the parties and that all claims and defenses would be contained in a single case. Accordingly, as Page 6 discussed at oral argument, the Court requests that Plaintiffs, assuming they do file an amended complaint, file a single complaint for all Plaintiffs, but assert on behalf of each Plaintiff the factual allegations and claims against the two defendants applicable to that Plaintiff, and incorporate by reference the allegations and claims that are common to all parties. As the Motion to Sever is unopposed and as the claims of each Plaintiff are subject to severance pursuant to Federal Rule of Civil Procedure 21, the Motion to Sever will be granted.

 B. Subject Matter Jurisdiction — Statute of Limitations

  Defendants argue that Count One should be dismissed with prejudice pursuant to Rule 12(b)(1) and/or Rule 12(b)(6) to the extent it purports to allege claims under RESPA on behalf of Plaintiffs Michael and Sharon Blimm, Joan and Paul Donahue, Jacqueline Shines, and Walter McCall, since their alleged claims arose from closings that took place earlier than one year before the complaint was filed, as RESPA imposes a one year statute of limitations. Additionally, Defendants argue that the allegations concerning Plaintiff Darrell Smith appeared only in the Amended Complaint filed September 4, 2003, which is also more than one year after the alleged transaction involving Plaintiff Smith and thus is barred by 12 U.S.C. § 2614.

  Plaintiffs concede that the claims brought by Plaintiffs Michael and Sharon Blimm under RESPA are untimely under 12 U.S.C. § 2614. Thus, these claims will be dismissed. Plaintiffs argue, however, that Plaintiffs Joan and Paul Donahue, Jacqueline Shines, and Walter McCall have all stated timely claims under RESPA due to the doctrine of equitable tolling. Plaintiffs also argue that Darryl Smith's claim was filed in the original complaint, within one year of his settlement, that the allegations in the amended complaint relate back to that original complaint, Page 7 and therefore, his claim is timely under 12 U.S.C. § 2614.

  a. Plaintiffs Donahue, Shines and McCall: Equitable Tolling

  The parties agree that 12 U.S.C. § 2614 applies to this issue, and that this Court lacks subject matter jurisdiction over any claim brought more than one year after the transaction occurred which allegedly gave rise to the cause of action. The parties disagree as to whether the doctrine of equitable tolling applies to § 2614 and whether, if the doctrine does apply, Plaintiffs have pled facts that properly invoke equitable tolling.

  The Third Circuit has held that, absent explicit statutory language to the contrary, namely an explicit link between expiration of a statute of limitations and the expiration of jurisdiction, equitable tolling will be read into a statute. Ramadan v. The Chase Manhattan Corp., 156 F.3d 499, 504 (3d Cir. 1998). In addition, two courts in this district have held that Ramadan requires equitable tolling principles to apply to RESPA because the one year statute of limitations is not explicitly jurisdictional. Solar v. Millenium Fin. Inc., 2002 U.S. Dist. LEXIS 8923, at *2 (E.D. Pa. May 17, 2002); Smith v. Equicredit Corp., 2002 U.S. Dist. LEXIS 19395, (E.D. Pa. October 4, 2002). Accordingly, this Court will apply the test for equitable tolling to this case.

  Equitable tolling stops "the statute of limitations from running when the date on which the claim accrued has already passed." Lake v. Arnold, 232 F.3d 360, 370 (3d Cir. 2000). This doctrine allows a court to "extend a statute of limitations on a case-by-case basis to prevent inequity." Colletti v. N.J. Transit Corp., 50 Fed. Appx. 513, 2002 U.S. App. LEXIS 15463 (3d. Cir. 2002). Equitable tolling is appropriate in three situations: (1) when the defendant has actively misled the plaintiff respecting the facts which comprise the plaintiffs cause of action; Page 8 (2) when the plaintiff in some extraordinary way has been prevented from asserting his rights; and (3) when the plaintiff has timely asserted his rights in the wrong forum. U.S. v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998) (quoting Kocian v. Getty Refining & Mktg. Co., 707 F.2d 748, 753 (3d. Cir. 1983)). In addition, a plaintiff must have "exercised reasonable diligence in investigating and bringing the claims." Miller v. New Jersey Dep't of Corrections, 145 F.3d 616, 618-19 (3d Cir. 1998).

  Plaintiffs Donahue, Shines, and McCall contend they all dealt with either Defendant Commonwealth or Defendant Lawyers' Title, and their respective agents. These Plaintiffs argue that these defendants were also parties to the Callahan order, see n. 1, supra, and thus had an affirmative duty to prevent consumers from being overcharged. Plaintiffs argue that Defendants misrepresented the correct notary charges and, thus, misled the Plaintiffs in such a way as to fulfill the requirements of equitable tolling. Even if all of Plaintiffs' allegations are true, as this Court must assume in deciding a motion to dismiss, Plaintiffs have not alleged any fraudulent actions by Defendants that would have concealed from Plaintiffs their claims in this case. In fact, according to Plaintiffs, the amounts charged for notary services were listed on the forms presented to Plaintiffs at closing, and the statutorily appropriate notary fees are clearly set forth in the Notary Public Law. Although Defendants may have charged Plaintiffs an improper notary fee, they did not prevent Plaintiffs from discovering through reasonable diligence the actual fee they had been charged or the statutorily appropriate fee. In addition, Plaintiffs have not presented any allegations that would otherwise show that Plaintiffs were prevented from asserting their rights within one year of their settlements with Defendants. Accordingly, equitable tolling is not appropriate here, Plaintiffs Donahue, Shines and McCall have not filed their claims within the Page 9 statute of limitations of RESPA, and their claims will be dismissed.

  b. Plaintiff Smith: Relation Back

  Defendants further argue that Plaintiff Smith's claims are time-barred because he did not make any factual allegations in the original Complaint, where his name only appeared in the caption of the case, but nowhere else. Defendants argue that, because Plaintiff Smith only raised his claims in the Amended Complaint, which was filed more than a year after his real estate closing, his claims are barred.

  Rule 15(c)(2) states: "An amendment of a pleading relates back to the date of the original pleading when . . . the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." "Amendments that merely correct technical deficiencies or expand or modify the facts alleged in the earlier pleading meet the Rule 15(c) test and will relate back. Thus, amendments that do nothing more than restate the original claim with greater particularity or amplify the details of the transaction alleged in the preceding pleading fall within Rule 15(c))." 6A Wright, Miller & Kane, Federal Practice and Procedure § 1497 (2d ed. 1990). See Egervary v. Young, 159 F. Supp.2d 132, 156 (E.D. Pa. 2001) (holding that the relation back doctrine applies where amended complaint restates original allegations with more specificity).

  In the original Complaint, the only mention of Plaintiff Smith is the listing of his name in the caption and the only mention of Defendants Fidelity New York and Weichert Closing Services ("Weichert") is in the caption and listing of parties. (Complaint ¶ 13-14). There is no description of the transaction that occurred between Smith and the two Defendants and there are Page 10 no allegations as to whether these Defendants were involved in a transaction with Smith, what amount these two Defendants charged Smith, or whether this amount represented an overcharge. In the Amended Complaint, Plaintiffs present factual allegations concerning the date of Smith's real estate transaction, the property involved, that Fidelity New York and Weichert were the insurance company and closing agent respectively, the amount charged for notary fees, and the allegation that this amount was a significant overcharge based on the number of notarizations required. (Amended Complaint ¶ 63-64). However, as noted above, the original pleading in this case did not allege any conduct, transaction, or occurrence involving Plaintiff Smith or these two Defendants. Thus, the Amended Complaint does more than correct technical deficiencies or amplify the facts contained in the allegations; rather, it presents facts and allegations involving Plaintiff Smith for the first time. Plaintiff Smith does not meet the standards of Fed.R.Civ.P. 15(c)(2) and his Amended Complaint does not relate back to the Original Complaint. Accordingly, Plaintiff Smith has failed to raise his claims under Count One within the one year limitations period of RESPA and his claims will be dismissed.

  As the sole basis for subject matter jurisdiction in this Court is the claim for violation of RESPA in Count One, the dismissal of Count One for Plaintiffs Blimm, Donahue, Shines, McCall, and Smith means that these parties may no longer remain as parties in this Court. Accordingly, all claims by these Plaintiffs will be dismissed without prejudice. Thus, the parties remaining before this Court are Plaintiffs Becker, Small, Hildebrandt, and Burke and the corresponding Defendants. Accordingly, the Motion to Strike and the Motion to Dismiss will only be addressed as they relate to these Plaintiffs. Page 11

 III. Motion to Strike

  Defendants First American and Olde City filed a Motion to Strike several items from the Amended Complaint, which was subsequently joined by Fidelity National Title Insurance of New York ("Fidelity New York"), Fidelity National Title Insurance Company ("Fidelity National"), and Chicago Title Insurance Company ("Chicago Title"). For the reasons that follow, the Court will deny the Motion to Strike in part and grant it in part.

 A. Legal Standard

  Federal Rule of Civil Procedure 12(f) provides that the court "may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R. Civ. P. 12(f). Motions to strike are generally disfavored. See, e.g., DiPietro v. Jefferson Bank, 1993 WL 101356, at *1 (E.D. Pa. March 30, 1993). This Court has observed that the "standard for striking under Rule 12(f) is strict" and that "only allegations that are so unrelated to plaintiffs' claims as to be unworthy of any consideration" should be stricken. Id. (quoting In re Catanella and E.F. Hutton and Co., Inc., 583 F. Supp. 1388, 1400 (E.D. Pa. 1984)).

 B. Discussion

  Defendants move to strike from the Amended Complaint Plaintiffs' requests for punitive damages, treble damages, and attorneys' fees as well as Plaintiffs' references to a fiduciary relationship. These motions will be addressed as they relate to each claim in the Complaint. As a preliminary matter, there is no motion to strike the claims for punitive or treble damages or attorneys' fees as pertains to Count One, the claim under RESPA. In addition, as discussed below, Count Two, the breach of settlement claim, will be dismissed for lack of standing. Thus, Page 12 the remaining claims for the purposes of the Motion to Strike are Claims Three through Six.

  1. Count Three: Negligent Supervision

  Defendants move to strike from the Amended Complaint Plaintiffs' requests for punitive damages in Count Three, Negligent Supervision, which is a state claim based in tort. The Pennsylvania Supreme Court adheres to the Restatement of Torts (Second) § 908(2), which states that "punitive damages maybe awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." See Feld v. Merriam, 485 A.2d 742, 747-8 (Pa. 1984) (stating that Pennsylvania has adopted Restatement § 908(2)). Plaintiffs have alleged that Defendants have, due to either indifference or malice, participated in a scheme to defraud consumers, in violation of state law and despite the consent decree in Callahan. If Plaintiffs' allegations are taken as true, as they must be at this early stage in the litigation, then there is the possibility that a court could find Defendants' actions to be sufficiently outrageous to allow for punitive damages. Given the strict standard of Rule 12(f) and the importance of allowing Plaintiffs discovery to develop their case, Defendants' Motion to Strike requests for punitive damages in Count Three will be denied.

  Defendants also move to strike Plaintiffs' request for treble damages under Count Three. Plaintiffs have conceded that treble damages are not appropriate for this claim. Defendants also move to strike Plaintiffs' request for attorneys' fees under Count Three and Plaintiffs have conceded that there is no statute authorizing attorneys' fees for this claim. Accordingly, Defendants' motion to strike requests for treble damages and attorneys' fees in Count Three will be granted. Page 13

  2. Count Four: Conspiracy

  Defendants also move to strike Plaintiffs' requests for punitive damages and attorneys' fees in Count Four, which is a claim for civil conspiracy. As discussed above with respect to negligent supervision, it is appropriate at this stage in the proceedings for a claim for punitive damages to proceed. Also for the reasons discussed above and because Plaintiffs concede that attorneys' fees are not authorized, Defendants' motion to strike requests for attorneys' fees will be granted.

  3. Count Five: UTPCPL

  Defendants also move to strike Plaintiffs' requests for punitive damages and treble damages in Count Five, which is a claim under the UTPCPL. The UTPCPL specifically authorizes the grant of treble damages. 73 Pa. Cons. Stat. § 201-9.2(a). Although, as Defendants note, some cases require a finding of outrageous or unconscionable behavior for such damages, at this stage in the litigation, the claim will be permitted. See McClelland v. Hyundai Motor Am., 851 F. Supp. 680, 681 (E.D. Pa. 1994) (denying treble damages under UTPCPL because defendant did not act outrageously); Smith v. Chrysler Motors Corp., 1990 U.S. Dist. LEXIS 5963, 1990 WL 65700 (E.D. Pa. May 15, 1990) (same); In re Brvant, 111 B.R. 474 (E.D. Pa. 1990) (under UTPCPL, treble damages are appropriate when defendant's conduct is unconscionable). Accordingly, Defendants' motion regarding Count Five will be denied. The Court notes that, assuming Plaintiffs file an Amended Complaint, they should replead these claims for damages as required by the statute. Page 14

  4. Count Six: Restitution

  Defendants also move to strike Plaintiffs' request for attorneys' fees under Count Six, which is a claim for restitution. As there is no statute authorizing an award of attorneys' fees for this claim, Defendants' motion will be granted and Plaintiffs, assuming they file an Amended Complaint, should replead this claim as a request for equitable relief.

  5. Fiduciary Relationship

  Defendants move to strike Plaintiffs' references to a fiduciary relationship and fiduciary duty in the Amended Complaint, arguing that Plaintiffs raise no claim for breach of fiduciary duty, but state the legal conclusion that such a duty existed. In addition, Defendants argue that Pennsylvania law does not recognize a fiduciary relationship between a borrower and a title insurer in a transaction, citing In re Johnson, 292 B.R. 821, 828 (Bankr. E.D. Pa. 2003).

  At oral argument, Plaintiffs argued that they are not suggesting that a fiduciary relationship exists between an insurer and an insured due to the insurance contract, but, rather, they are suggesting that a fiduciary relationship exists between a title agent and the insured due to the role of the title agent during settlement. Plaintiffs suggest that the title agent acts in a role analogous to that of an escrow agent at settlement and that, because of that role, a fiduciary relationship exists.

  This argument is flawed in theory and the facts alleged by Plaintiffs do not support this allegation. A fiduciary relationship arises under Pennsylvania law where "`one person has reposed a special confidence in another to the extent that the parties do not deal with each other on equal terms, either because of an overmastering dominance on one side, or weakness, Page 15 dependence or justifiable trust, on the other.'" L&M Bev. Co. v. Guinness Import Co., 1995 U.S. Dist. LEXIS 19443, * 13-14 (E.D. Pa. Dec. 29, 1995) (quoting Commonwealth. Dep't of Transp. v. E-Z Parks, 620 A.2d 712, 717 (Pa. Commw. 1993)). After establishing that a fiduciary duty exists, the plaintiff must then show that a subsequent breach occurred. Id. Plaintiffs make no allegations that the title agents and Plaintiffs were on unequal terms, either because the title agents had more power or information or because Plaintiffs had a dependence on the title agents.

  In addition, Plaintiffs' theory of fiduciary duty is not implicated in the facts that Plaintiffs allege. The role of the agent at settlement is to disburse the funds as listed on the HUD-1 Settlement Statement. Plaintiffs make no allegations that any defendant instructed the agent not to disburse the notary funds listed on the HUD-1 Statement, to disburse them in different amounts, or to remove the funds from the Statement. The injury complained of is not mismanagement of the escrow funds, but rather overcharging for the notary service, which does not implicate the alleged fiduciary duty. For these reasons, Plaintiffs' argument of a fiduciary duty fails and Defendants' Motion to Strike references to a fiduciary relationship or fiduciary duty will be granted.

 IV. Motion to Dismiss

  As to the remaining arguments in the Motion to Dismiss, Defendants argue that Count Two should be dismissed because none of the named Plaintiffs has standing to bring the claim, that counts Three through Six should be dismissed because there is no private right of action under the Pennsylvania Notary Public Law, that Counts Three through Five should be dismissed for failure to state a claim, and that Count Six should be dismissed to the extent it requests Page 16 injunctive relief. Defendants' argument regarding subject matter jurisdiction has already been addressed and each remaining argument will be addressed, in turn, below.

 A. Legal Standard

  When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox. Rothschild. O'Brien & Frankel, 20 F.3d 1251, 1261 (3d Cir. 1994). The Court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be granted only when it is certain that no relief could be granted under any set of facts that could be proved by the plaintiff. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).

  When deciding a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff bears the burden of persuading the Court that subject matter jurisdiction exists. Kehr Packages. Inc. v. Fidelcor. Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). This Court is required to accept as true all factual allegations and any reasonable inferences that can be derived therefrom. See Frederick v. Dep't of Pub. Welfare, 157 F. Supp.2d 509, 515 (E.D. Pa. 2001) citing Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

 B. Discussion

  1. Standing to Bring Count Two: Breach of Settlement

  Defendants argue that Plaintiffs have no standing to bring Count Two for breach of Page 17 settlement because they were not parties to the original consent decree in Callahan. see n. 1, supra, or, in the alternative, because they were not intended third party beneficiaries of the consent decree. Plaintiffs argue that they have standing to bring Count Two against Defendants Chicago Title, Commonwealth, and Lawyers Title, since these defendants were all parties to the consent decree that Plaintiffs are seeking to enforce, and because Plaintiffs, as intended third party beneficiaries, can properly bring such an action. As Plaintiffs Donahue, Shines and McCall will be dismissed from this action, per the above discussion on the statute of limitations, the only parties that would remain under Count Two are Plaintiff Hildebrandt and the corresponding Defendant, Chicago Title.

  The issues in dispute are whether a non-party to the Callahan consent decree can enforce that agreement if that party was an intended third party beneficiary of the agreement and, if so, whether Plaintiff Hildebrandt is an intended third party beneficiary. The controlling case on this issue is Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), a case addressing a consent decree entered into by the government, which states that it is well settled "that a consent decree is not enforceable directly or in a collateral proceeding by those who are not parties to it even though they were intended to be benefitted by it." Despite the language of Blue Chip, some courts have allowed intended third party beneficiaries of consent decrees to enforce the decrees. See Hook v. State of Arizona, 972 F.2d 1012 (9th Cir. 1992). Berger v. Heckler, 771 F.2d 1556 (2d Cir. 1985). But see Raffertv v. NYNEX Corp., 60 F.3d 844, 849 (D.C. Cir. 1995), Aiken v. City of Memphis, 37 F.3d 1155 (6th Cir. 1994), Gautreaux v. Pierce, 743 F.2d 526 (7th Cir. 1984).

  The Third Circuit has not expressly addressed the issue of whether Blue Chip allows for Page 18 third party beneficiaries to enforce a consent decree. The implicit application of Blue Chip by courts in this circuit reaches results that, although not explicitly addressing the issue, suggest that third party beneficiaries cannot enforce a consent decree. In Washington Hospital v. John F. White. Jr., 889 F.2d 1294 (3d Cir. 1989), the Third Circuit found that a third party beneficiary to a stipulation with the same effect as a consent decree, who was specifically mentioned in the stipulation as a beneficiary, had standing to enforce the court's order. In that case, the court did not mention Blue Chip, instead relying on the provision in Fed.R.Civ.P. 71 providing that "when an order is made in favor of a person who is not a party to the action, that person may enforce obedience to the party by the same process as if a party." In Ford Motor Co. v. Summit Motor Products, the Third Circuit recognized the holding in Blue Chip as controlling authority, and noted the conflict between it and the enforcement provisions of RICO, before finding that a non-party to a consent decree could allege the violation of that decree as a predicate act for a RICO claim. 930 F.2d 277, 285 (3d Cir. 1991). In Coca-Cola Bottling Co. v. Coca-Cola Co., 988 F.2d 386, 401-02 (3d Cir. 1993), the Third Circuit affirmed a district court decision that used Blue Chip to determine that only parties who could trace their contractual rights to the original parties to a consent decree had standing to enforce the consent decree, reasoning that these individuals were intended beneficiaries within the scope of the language of the consent decree, see Coca-Cola Bottling Co. v. Coca-Cola Co., 654 F. Supp. 1419 (D. Del. 1987). In Cicerello v. New York Telephone Co., 123 F.R.D. 523, 526 (E.D. Pa. 1989), the court construed the enforcement provision of a consent decree to not allow standing for third party beneficiaries, but noted that some consent decrees could reflect an understanding that non-party beneficiaries could enforce those decrees. Finally, in Local 634 School Cafeteria Workers v. Hanley, 1996 Page 19 U.S. Dist LEXIS 4422, at *6-7 (E.D. Pa. April 4, 1996), the court found that Blue Chip and Ford Motor, together, dictated that a non-party to a consent decree did not have standing to enforce it, even if the decree was intended, in part, to benefit organizations like that non-party.

  Of the applications of Blue Chip in this circuit, the only case that narrowly follows the language of Blue Chip is Local 634. The court in Local 634 relies on Ford Motor, using that case as clear precedent in this circuit for the proposition that third party beneficiaries can never enforce consent decrees. In all of the other cases, the courts decide not to allow third party beneficiaries to enforce consent decrees, despite noting explicitly or implicitly that a circumstance could exist where third party beneficiaries may enforce such a decree. This Court concludes that cases in both this circuit and this district have followed Blue Chip in not allowing third party beneficiaries to enforce consent decrees, and this Court will do the same. Accordingly, Plaintiff Hildebrandt does not have standing to bring a claim for breach of settlement and that claim will be dismissed.*fn2

  2. Counts Three Through Six: Private Right of Action under the Pennsylvania Notary Public Law

  Defendants argue that Counts Three through Six should be dismissed with prejudice Page 20 because there is no private right of action under the Pennsylvania Notary Public Law, 57 Pa. Cons. Stat. § 147 et seq. Defendants argue that Plaintiffs are attempting to create a private right of action with Counts Three through Six, when the Notary Public Law does not explicitly provide a right of action, and when one cannot be implied. Plaintiffs argue that they can allege state law actions based on common law and statutory claims and that the Notary Public Law does not preclude Plaintiffs' causes of action set forth in the Third through Sixth Counts of the Amended Complaint. Plaintiffs contend that their claims in Counts Three through Six do not arise under the Notary Public Law, rather they are raising state law claims for which the fees authorized in the Notary Public Law are evidence.

  The Court believes that Defendants are trying to "shoehorn" Plaintiffs' state law claims into the Notary Public Law because the latter does not provide for a private right of action. Defendants cannot force Plaintiffs, at the pleading stage of this case, to plead a violation of the Notary Public Law itself, rather than common law or other statutory claims with the Notary Public Law's fee provision as evidence. As this Court is considering a motion to dismiss, all of Plaintiffs' allegations must be accepted as true and Plaintiffs have pled causes of action in Counts Three through Six that stand on their own under Pennsylvania law. See Alfred M. Lutheran v. A.P. Weilersbacher. Inc., 650 A.2d 83, 86, n. 6 (Pa. Super. 1994) (finding that a statute's enforcement provisions do not preclude a party from obtaining remedies otherwise authorized by statute or common law). In this case, Plaintiffs have pled claims for negligent supervision, civil conspiracy, unjust enrichment, and violation of the UPTCPL. These claims, taken as true as they must be in this stage of the proceedings, are not private actions under the Notary Public Law, but rather independent claims under state law. The Court requests, however, Page 21 that assuming Plaintiffs file an Amended Complaint, these claims include greater specificity. Accordingly, Defendants' Motion to Dismiss Counts Three through Six will be denied.

  3. Count Three: Economic Loss Doctrine

  Defendants argue that Count Three should be dismissed with prejudice pursuant to Fed.R.Civ.P. 12(b)(6) because Plaintiffs fail to state a claim for negligent supervision, as they have not alleged physical harm. Defendants argue that Plaintiffs' claims are barred by the Economic Loss Doctrine, stating that economic losses may not be recovered in tort, absent physical injury or property damage. Plaintiffs argue they have pled each element necessary to sustain an action for negligent supervision and that the Economic Loss Doctrine is inapplicable to the facts of this case, as evidenced by courts in this district that have allowed the tort of negligent supervision to proceed in cases where the harm was purely economic.

  The Economic Loss Doctrine, although not explicitly adopted by the Pennsylvania Supreme Court, has been widely applied by both the appellate courts of Pennsylvania and the federal courts in the Third Circuit. Contrary to Defendants' characterization, the Economic Loss Doctrine's rationale turns less on the absence of physical injury and more on the fact that a party's claims flow from failed commercial expectations. The doctrine "prohibits plaintiffs from recovering in tort economic losses to which their entitlement flows only from a contract." Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 618 (3d Cir. 1995). The doctrine has been held to apply to transactions involving services contracts, claims brought by individuals, and claims of intentional and statutory fraud. See Werwinski v. Ford Motor Co., 286 F.3d 661, 673-81 (3d Cir. 2002) (applying doctrine to individual consumers and to intentional fraud claim), Page 22 Factory Market. Inc. v. Schuller International. Inc., 987 F. Supp. 387, 396-97 (E.D. Pa. 1997) (applying doctrine to contract for services). The Economic Loss Doctrine has traditionally been applied to products liability actions, while the corresponding "gist of the action" doctrine is applied to other types of actions. The gist of the action doctrine provides "to be construed as in tort . . . the wrong ascribed to defendant must be the gist of the action, the contract being collateral." Etoll. Inc. v. Elias/Savion Advertising. Inc., 2002 Pa. Super. 347, 811 A.2d 10, 14 (Pa. Super. 2002). "In other words, a claim should be limited to a contract claim when the parties' obligations are defined by the terms of the contracts, and not by the larger social policies embodied in the law of torts." Id. (quoting Bohler-Uddeholm Am., Inc. v. Ellwood Grop. Inc., 247 F.3d 79, 104 (3d Cir. 2001)).

  As compared to cases where plaintiffs are raising tort claims for a harm that is addressed in the terms of the contract and can be remedied by traditional contract claims, Plaintiffs here raise no claims arising from an express contract for title insurance or for notary services with Defendants. Rather, they are raising tort and statutory claims for which any contract would provide evidence. See O'Keefe v. Mercedes-Benz. U.S.A., LLC, 214 F.R.D. 266, 278 (E.D. Pa. 2003) (finding that economic loss doctrine does not apply because Plaintiff raised statutory and common law tort claims and Plaintiffs claims do not stem solely from contract law).

  The relationship between purchasers of real estate and the person administering the settlement might give rise to an implied contract, but also encompasses professional services, requiring a certain level of expertise, the lack of which could give rise to a tort claim. See Commonwealth to Use of Willow Highlands Co. v. United States Fidelity & Guaranty Co., 364 Pa. 543, 73 A.2d 422 (Sup.Ct. 1950) (holding that a notary is a public officer and, as such, owes Page 23 a duty to the public to discharge his functions with diligence); Commonwealth for Use of Smolovitz v. American Surety Company of New York, 188 Pa. Super. 513, 149 A.2d 515 (Super. Ct. 1959) (same). It is also important to note that, at this stage in the litigation, the parties have not even addressed the issue of whether there were contracts for real estate closing services between the Plaintiffs and Defendants and, if such contracts exist, their terms have not been presented to the Court. Accordingly, the principles of the Economic Loss Doctrine and the Gist of the Action Doctrine do not apply to this case and Defendants' Motion to Dismiss Count Three will be denied.

  4. Count Four: Failure to State a Claim for Civil Conspiracy

  Defendants argue that Count Four should be dismissed with prejudice pursuant to Fed.R.Civ.P. 12(b)(6) because Plaintiffs fail to state a claim for conspiracy under Pennsylvania law. Plaintiffs argue that they have properly pled the elements of conspiracy. Further, at oral argument, Plaintiffs clarified that the conspiracy they are alleging is a vertical one, between the title insurers and their title agents, rather than a horizontal conspiracy among the various insurers.

  Defendants first argue that, because a conspiracy claim must be predicated on an actionable offense and Plaintiffs have only pled a violation of the Notary Public Law, the conspiracy claim cannot stand. As discussed above, Plaintiffs have raised independent state law tort claims as well as a claim under RESPA, and have not, as Defendants argue, only raised a claim under a nonexistent private right of action under the Notary Public Law. Accordingly, Defendants first argument as to the conspiracy claim fails.

  In the alternative, Defendants argue that Plaintiffs have not adequately pled their Page 24 conspiracy claim because they have not provided the required minimum description of the alleged conspiracy, namely "the general composition of the conspiracy, some or all of its broad objectives, and defendant's general role in the conspiracy." Mowrer v. Armour Pharmaceutical Co., 1993 U.S. Dist LEXIS 18367, at *8 (E.D. Pa. Dec. 30, 1993). Defendants argue that, consistent with other cases in this district, Plaintiffs have not adequately alleged a conspiracy claim here because they have not made any factual allegations as to how the defendants conspired, the role of any particular defendant, or any other description of the alleged conspiracy. In addition, Defendants argue that Plaintiffs have failed to allege the requisite malice or intent to injure.

  Pennsylvania law provides that the elements of a civil conspiracy are "(1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage." Bristol Township v. Independence Blue Cross, 2001 U.S. Dist. LEXIS 16594 (E.D. Pa. October 12, 2001). An essential element of proof for conspiracy is malice or intent to injure. Strickland v. University of Scranton, 700 A.2d 979, 987 (Pa. Super. 1997). Pennsylvania courts have found that this element of malice will only be found when the sole purpose of the conspiracy is to cause harm to the party who has been injured. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 472 ( Pa. 1979). In addition, where the facts show that a person acted to advance his own business interests, and not solely to injure the party injured, those facts negate any alleged intent to injure. Id.

  Plaintiffs' claims for conspiracy are woefully inadequate and will be dismissed without prejudice and, if the facts so support, Plaintiffs may amend their complaint to allege the requisite Page 25 elements with specificity.*fn3

  5. Count Five: Failure to State a Claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law

  Defendants argue that Count Five should be dismissed with prejudice pursuant to Fed.R.Civ.P. 12(b)(6) because Plaintiffs fail to state a claim for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL") 73 Pa. Cons. Stat. § 201-1. et seq. since: (1) the UTPCPL does not create a private right of action for alleged violations of the Notary Public Law; (2) plaintiffs have failed to plead the required elements of common law fraud; and (3) recovery under the UTPCPL is barred here by the Economic Loss Doctrine. Plaintiffs argue that they have properly set forth a claim under the UTPCPL. Plaintiffs assert that, because of the 1996 amendments to that statute, adding the element of deception, the UTPCPL has been interpreted to mean that proof of common law fraud is not required. Plaintiffs also assert that the Economic Loss Doctrine is inapplicable to Plaintiffs' claim.

  Defendants' contentions regarding a private right of action under the Notary Public Law and the Economic Loss Doctrine have been addressed above. In short, as explained above in reference to Plaintiffs' other claims, Plaintiffs are not attempting to bring a private right of action under the Notary Public Law, rather they are raising independent claims. In addition, the Economic Loss Doctrine is not applicable, at least at this stage of the case, on a motion to dismiss. See O'Keefe v. Mercedes-Benz. U.S.A., LLC., 214 F.R.D. 266 (E.D. Pa. 2003) (Van Page 26 Antwerpen, J.) (affirming a class action settlement, by holding that the Economic Loss Doctrine does not preclude relief under the UTPCPL, even where the consumer suffers only monetary damages).

  As to whether the UTPCPL requires Plaintiffs to allege the elements of common law fraud, this Court adopts the reasoning of Judge McLaughlin in Flores v. Shapiro & Kreisman, 246 F. Supp.2d 427, 432 (E.D. Pa. 2002) and Judge Sigmund in In re Patterson, 263 B.R. 82, 92-93 (Bankr. E.D. Pa. 2001). Relying on the 1996 amendments to the statute, these two colleagues held that other cases in this district and in the Third Circuit, that are not precedential, and which rely on Booze v. Allstate Ins. Co., 750 A.2d 877, 880 ( Pa. Super. 2000), should not control.*fn4 The Superior Court in Booze held that a claim under the UTPCPL requires proof of the elements of common law fraud, but the Superior Court did not discuss the 1996 Amendments and relied on pre-1996 precedents to reach its conclusion. Thus, Booze and the federal cases that cite it cannot properly be relied upon for the proposition that, despite the 1996 Amendments, the elements of common law fraud are still required for a claim under the UTPCPL. In addition, the Commonwealth Court in Commonwealth v. Percudani, 825 A.2d 743, 747 (Pa. Commw. 2003) did discuss the 1996 Amendments, as did Judges McLaughlin and Sigmund, and concluded that the Page 27 1996 Amendments, by amending the UTPCPL to prohibit both fraudulent conduct and deception instead of solely fraud, eliminated the need to plead all of the elements of common law fraud. This Court adopts this reasoning and, thus, Plaintiffs in this case are required to plead either deception or fraudulent conduct. Plaintiffs have not alleged facts with enough specificity to sustain a claim for deception under the UTPCPL, and will thus be given leave to amend to plead facts with the proper specificity.

  As to fraud, the parties dispute whether the elements are properly pled. Defendants argue that Plaintiffs have failed to properly plead the elements of reliance and materiality. The elements of common law fraud are:

(1) a false representation of an existing fact or a non-privileged failure to disclose; (2) materiality, unless misrepresentation is intentional or involves a non-privileged failure to disclose; (3) scienter, which may either be actual knowledge or reckless indifference to the truth; (4) justifiable reliance on the misrepresentation, so that the exercise of common prudence or diligence could not have ascertained the truth; and (5) damage as a proximate result.
Dawson v. Dovenmuehle Mortg., Inc., 214 F.R.D. 196 (E.D. Pa. 2003). With regard to the element of reliance, Plaintiffs argue that it is unnecessary to prove reliance when a confidential relationship exists between the parties, and that a finding of a fiduciary duty relieves a plaintiff of proving reliance, as reliance is inherent in such a relationship. Basile v. H&R Block Eastern Tax Services. Inc., 777 A.2d 95, 108 (Pa. Super. 2001). Plaintiffs correctly state Pennsylvania law on this point, but even taking Plaintiffs' allegations as true, the facts in this case will not allow allegations of a fiduciary relationship, as discussed above regarding the Motion to Strike. See In re Johnson, 292 B.R. 821, 828 (Bankr. E.D. Pa. 2003) (finding that Pennsylvania law does not Page 28 recognize a fiduciary relationship between an insurer and an insured). As Plaintiffs cannot properly plead a fiduciary relationship, they must plead reliance. Their Complaint does not do so and, thus, Plaintiffs will be given leave to amend this claim with the proper specificity.

  As to materiality, Plaintiffs are required to allege materiality and they have properly done so. As recognized in Callahan, the small amount per overcharge does not necessarily make Plaintiffs' claims inconsequential. Rather, Plaintiffs' allegations of overcharging, especially when viewed through the lens of a putative class action, allege a significant liability. In addition, Defendants' arguments that Plaintiffs would have consummated their real estate transactions, even if they knew they were being overcharged, draws conclusions that are both premature and unsupported by Plaintiffs' allegations.

  Accordingly, Defendants Motion to Dismiss Count Five will be granted without prejudice and Plaintiffs will be given leave to amend the Complaint with sufficient specificity to plead a claim for deception and/or fraudulent conduct under the UTPCPL.

  6. Count Six: Failure to State a Claim Upon Which Injunctive Relief Can Be Granted

  Defendants argue that injunctive relief is inappropriate in Count Six. Plaintiffs admit that they are not entitled to injunctive relief under RESPA or the UTPCPL, but argue that equitable relief in the form of an injunction is available to the Plaintiffs for the other claims set forth in the Amended Complaint. Defendants do not disagree. Accordingly, the Court will dismiss Plaintiffs' claims for injunctive relief under RESPA and the UTPCPL and Plaintiffs, assuming they submit an Amended Complaint, should plead their claims for injunctive relief with the proper specificity. Page 29

 V. Conclusion

  For the reasons above, Defendants' Motion to Sever will be granted, Defendants' Motion to Strike will be granted in part and denied in part and Defendants' Motion to Dismiss will be granted in part and denied in part.

  Plaintiffs are given leave to file an Amended Complaint. In accordance with this opinion, the remaining parties before this Court are:

Plaintiff Defendant Title Insurer Defendant Title Agent
Julie Decker Conestoga Title Insurance Co. ABCO-Abstracting Company
Kevin and Kirsten Small Fidelity National Title Insurance Co. Realty Land Transfer, LLC
Margaret E. Hildebrandt Chicago Title Insurance Co. Statewide Abstract Group, Inc.
Christine Burke First American Title Insurance Co. Olde City Abstract, Inc.
Each set of Plaintiff and Defendants are severed into a separate cause of action. The remaining claims, to be repleaded in an Amended Complaint are: (1) Violation of the Real Estate Settlement Procedures Act 12 U.S.C. § 2603, et seq., (2) Negligent Supervision, (3) Civil Conspiracy, (4) Violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Cons. Stat. § 201-1 et seq., and (5) Unjust Enrichment.

 A. Case Management

  Following the oral argument on the Motion to Dismiss, the Court had a discussion with counsel concerning future proceedings in the case. All parties requested that the Court allow a period of time for discovery and briefing on the class action issue before beginning general discovery on the merits. The Court agreed to this request, however, noting that there was not Page 30 necessarily a bright line distinction between class action discovery and merits discovery. The Defendants will be permitted to request documents from and take the depositions of Plaintiffs, and Plaintiffs will be able to obtain discovery from Defendants of their general policies, practices and procedures concerning the subject matter of this case, i.e., notary fees charged at real estate settlements.

  The Court notes that it is also interested in the economic aspects of this case proceeding as a class action, including such topics as who retains the notary fees that are charged to members of the putative class, whether the Defendants received any benefit from the allegedly improper fees, how the cost of attorneys' fees, management, and administration of this case as a class action would compare to any benefits to members of the class, and whether the Defendants, or any other persons or parties, would be unjustly enriched by being allowed to retain improper notary fees, assuming arguendo that such were collected from members of the putative class. In other words, the Court believes it is appropriate for class action discovery to focus on the economic aspects of the case from all relevant perspectives.

  An appropriate order follows. Page 31

  ORDER

  AND NOW, this day of February, 2004, for the reasons stated in the foregoing Memorandum, it is hereby ORDERED that:

  1. All claims by Plaintiffs Michael and Sharon Blimm, Joan and Paul Donahue, Jacqueline Shines, Walter McCall, and Darrell Smith under Count One are DISMISSED WITH PREJUDICE. As this Court, then, lacks subject matter jurisdiction over these Plaintiffs, all remaining claims by Plaintiffs Michael and Sharon Blimm, Joan and Paul Donahue, Jacqueline Shines, Walter McCall, and Darrell Smith are DISMISSED WITHOUT PREJUDICE.

  2. The Motion to Sever by Defendants First American Title Insurance Co. and Olde City Abstract, Inc. (Doc. No. 19) is GRANTED and the claims of each Plaintiff against the corresponding Defendants are severed from the clams of the other Plaintiffs.

  3. The Motion to Strike by Defendants First American Title Insurance Co., Olde City Abstract, Inc., Chicago Title Insurance Co., Fidelity National Title Insurance Co., and Fidelity National Title Insurance Co. of New York (Doc. No. 20) is GRANTED IN PART AND DENIED IN PART. Page 32

   4. The Motion to Dismiss by all Defendants (Doc. No. 17) is GRANTED IN PART and DENIED IN PART.

   5. The Motion to Sever (Doc. No. 11), Motion to Strike (Doc No. 12), and Motion to Dismiss (Doc. No. 13) filed July 23, 2003 are DISMISSED AS MOOT.

   6. Plaintiffs may file an amended complaint in accordance with this Order within 14 days.

   7. The parties are subject to the following schedule:

   a. Track Assignment: The parties agree that this case is properly assigned to the Special Management Track pursuant to Sections 1:01-1:05 of this Court's Expense and Delay Reduction Plan.

   b. Initial Disclosures and Class Discovery and Briefing: The parties will follow the following schedule:

   i. Rule 26(a)(1) disclosures and initial Requests for Production of Documents shall be served by all parties by February 20, 2004.

   ii. Discovery shall initially be limited to class certification issues before the Court's ruling on any class certification motion, and such discovery shall be completed by June 15, 2004.

   iii. The Court will hold a telephone conference on the status of discovery on April 5, 2004 at 4:30 p.m. Any then existing disputes about discovery that the parties have been unable to resolve shall be the subject of a Motion to Compel filed not later than April 1, 2004.

   iv. Plaintiffs shall identify their expert witness(es) on class certification issues, if any, and provide Rule 26(a)(2)(B) reports for those experts on or before April 30, 2004. Page 33

   v. Defendants shall identify their expert witness(es) on class certification issues, if any, and provide Rule 26(a)(2)(B) reports for those experts on or before June 1, 2004.

   vi. Plaintiffs shall file their class certification motion and brief in support together with all supporting affidavits and all other evidence as to each defendant on or before June 30, 2004.

   vii. Defendants shall file their responses to the class certification motion and brief in support together with all supporting affidavits and all other evidence on July 22, 2004.

   viii. Plaintiffs shall file their reply brief on the class certification motion (which shall be limited to a discussion of only new points raised by Defendants) on July 29, 2004.

   ix. The Court shall then schedule a hearing in early August on the class certification motion.

   c. After rendering its decision(s) as to class certification and notice, the Court shall set a further scheduling conference to address the completion of discovery, dispositive motion practice, trial preparation, and trial.


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