Moser v. Health Insurance Innovations, Inc.
- Proceeding
- district
- Area
- civil
- Panel
- William Q. Hayes (author)
Analysis
Following the Ninth Circuit's vacatur of the prior class certification order, the district court resolved a dispute between the parties regarding the scope of briefing on remand. The court ordered the plaintiff to file a renewed motion for class certification by January 14, 2022, and set a schedule for the defendants' opposition and the plaintiff's reply.
| What the court decided | The model |
|---|---|
The court ordered the plaintiff to file a renewed motion for class certification by January 14, 2022, and set a briefing schedule for the defendants' opposition and the plaintiff's reply.“IT IS HEREBY ORDERED that Plaintiff shall file any motion for class certification or before January 14, 2022. Defendants shall file any opposition to the motion for class certification on or before February 28, 2022. Plaintiff shall file any reply on or before March 30, 2022.” | agree with court The court correctly treated the Ninth Circuit's vacatur as nullifying the prior certification. Because the appellate court explicitly left the merits of the personal jurisdiction objection and the Rule 23 factors for the district court on remand, the plaintiff bears the burden of re-establishing the class. The court's decision to require a full motion and opposition, rather than limiting briefing solely to the jurisdictional issue as requested by the plaintiff, is a proper exercise of case management authority to ensure the court has a complete record on all issues left open by the mandate. |
The order itself: sound — The order is a procedural scheduling order that correctly implements the Ninth Circuit's mandate. It accurately reflects that the prior certification is vacated and that the plaintiff must re-file a motion to establish the class. The court's refusal to limit the briefing solely to the Bristol-Myers issue is legally sound because the Ninth Circuit explicitly declined to reach the other Rule 23 arguments, leaving them open for the district court to decide on the renewed motion.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENNETH J. MOSER, individually and Case No.: 17-cv-1127-WQH-KSC on behalf of all others similarly situated, 12 ORDER Plaintiff, 13 v. 14 HEALTH INSURANCE 15 INNOVATIONS, INC., a Delaware 16 corporation; NATIONAL CONGRESS OF EMPLOYERS, INC., a Delaware 17 corporation; COMPANION LIFE 18 INSURANCE COMPANY, a South Carolina corporation; DONISI JAX, INC., 19 a Florida corporation also known as 20 Nationwide Health Advisors; HELPING HAND HEALTH GROUP, INC., a 21 Florida corporation; ANTHONY 22 MARESCA, an individual; and MATTHEW HERMAN, an individual, 23 Defendants. 24 25 HAYES, Judge: 26 On December 3, 2018, Plaintiff Kenneth J. Moser filed a Motion for Class 27 Certification. (ECF No. 3). On August 7, 2019, the Court issued an Order granting the 28 Motion for Class Certification. (ECF No. 145). The Court declined to consider Defendant 1 Health Insurance Innovations’ (“HII”) argument that the Court “cannot exercise specific 2 jurisdiction over a non-resident defendant with respect to non-resident class claims” 3 pursuant to Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017). (Id. at 8). 4 The Court determined that “HII waived its personal jurisdiction challenge,” because HII 5 did not raise the challenge in a pre-answer motion. (Id. at 9). The Court further determined 6 that Plaintiff met the requirements of Rule 23(a) and Rule 23(b)(3) of the Federal Rules of 7 Civil Procedure and certified two nationwide subclasses. 8 Defendants HII and National Congress of Employers, Inc. (“NCE”) appealed. On 9 September 1, 2021, the Court of Appeals for the Ninth Circuit issued an Opinion vacating 10 this Court’s class certification Order and remanding. (ECF No. 171 at 4-25; Moser v. 11 Benefytt, Inc,, 8 F.4th 872 (9th Cir. 2021)). The Ninth Circuit stated: 12 We hold that the district court erred in concluding that HII waived its personal jurisdiction objection to class certification by failing to assert the defense at 13 the Rule 12 stage. 14 . . . Because it found the issue waived, the district court did not address the merits 15 of HII’s Bristol-Myers objection to class certification. Although HII asks us 16 to resolve that issue now, . . . we leave that matter for the district court on remand. . . . And because the permissible scope of the certified class (and 17 record) may change, we do not reach HII’s other arguments on why class 18 certification under Rule 23 was otherwise improper.
19 We vacate the class certification order and remand this case to the district 20 court for proceedings consistent with this decision.
21 (ECF No. 171 at 13, 17). The mandate was issued on September 1, 2021. 22 On November 17, 2021, the parties filed status reports. (ECF Nos. 175, 176). 23 Plaintiff requests that the Court allow supplemental briefing “solely” on “the application 24 of Bristol-Myers.” (ECF No. 175 at 1-2). Plaintiff contends that “[a]ll of the remaining 25 issued related to class certification that were previously ruled on should still apply,” 26 because “[t]he Ninth Circuit’s ruling did not touch the Rule 23 class factors in any way.” 27 (Id. at 2). Defendants Donisi Jax, Inc., HII, Companion Life Insurance Company Inc., and 28 1 || NCE (collectively, “Defendants”) request that the Court issue a briefing schedule for any 2 ||renewed motion for class certification. Defendants contend that “there is no certified class 3 ||in this case,” and “[i]f Plaintiff chooses to seek class certification again, he has the burden 4 ||to establish that his proposed class meets the requirement of [Rule 23]. (ECF No. 176 at 5 ||4). The Ninth Circuit has vacated this Court’s class certification Order. 6 IT IS HEREBY ORDERED that Plaintiff shall file any motion for class certification 7 or before January 14, 2022. Defendants shall file any opposition to the motion for class 8 ||certification on or before February 28, 2022. Plaintiff shall file any reply on or before 9 || March 30, 2022. Any motion for class certification will be without oral argument, unless 10 || otherwise ordered by the Court. 11 || Dated: November 19, 2021 BE: eg Ze. A a 12 Hon, William Q. Hayes 13 United States District Court 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28