United States District Court, E.D. Pennsylvania
February 4, 2004.
JULIE A. BECKER, et al.
CHICAGO TITLE INSURANCE COMPANY, et al
The opinion of the court was delivered by: MICHAEL BAYLSON, District Judge
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
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:
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
Count Two: Breach of Settlement Agreement
(against only Chicago Title
Insurance, Lawyers Title Insurance
and Commonwealth Land Title Insurance
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.
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
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.
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
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
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
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
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;
(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
statute of limitations of RESPA, and their claims will be
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
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
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.
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
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)).
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,
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.
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
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
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
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.
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).
1. Standing to Bring Count Two: Breach of Settlement
Defendants argue that Plaintiffs have no standing to bring Count Two
for breach of
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
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
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
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,
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),
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
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
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
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
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
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
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'
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
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
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
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
(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
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
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
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
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
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.
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.
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
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.
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.