A defendant defeats a motion for class certification in federal district court. Another plaintiff files an identical lawsuit, on behalf of the same putative class, in the same court, but the case is assigned to a different judge. Is the second judge bound by the first judge’s denial of class certification?
No, according to a recent decision from the Seventh Circuit. While a 2011 Supreme Court decision referred vaguely to “comity” with respect to federal courts’ class certification decisions in addressing a common dispute, the Seventh Circuit held that the Supreme Court’s language cannot be construed to preclude Judge #2 from granting class certification merely because Judge #1 denied it in a different case.
The Seventh Circuit case, Smentek v. Dart, actually involved two prior denials of class certification. All three cases were brought by former Cook County Jail inmates complaining about an insufficient number of dentists available to treat inmates in a timely manner. All three cases were filed in federal district court in Chicago, and were assigned to three different judges. (The Seventh Circuit questioned “why all three cases were not assigned to the same judge.”)
The judges in the first two cases denied class certification. The Smentek judge initially denied certification as well, on the basis of collateral estoppel, but reversed herself and granted certification in the wake of the Supreme Court’s 2011 opinion in Smith v. Bayer Corp. In Smith, a federal district court, having denied class certification, enjoined a state court from considering a class certification motion in a “copycat” class action filed by a different plaintiff. The Court reversed the injunction, holding that “neither a proposed class action nor a rejected class action may bind nonparties,” and thus a class certification ruling adverse to one plaintiff may not bind similarly situated persons whom that plaintiff was denied leave to represent.
The Court also said, however, that “we would expect federal courts to apply principles of comity to each other’s class certification decisions when addressing a common dispute.” The defendants in Smentek seized on this language to argue that the district court should have deferred, based on “comity,” to the first two courts’ denials of class certification.
The Seventh Circuit rejected this argument, concluding that the Supreme Court could not have intended its dictum in Smith to preclude the granting of class certification in copycat class action suits; otherwise, the Court would have affirmed, rather than reversed, the injunction against the state court proceeding. Instead, the panel held, comity is a doctrine that merely permits, and does not require, preclusion. To hold otherwise “would give comity greater force between two judges of the same court than between two nations each jealous of its sovereign authority and demanding respect from other nations.”
The court concluded that it was “left with a weak notion of ‘comity’ as requiring a court to pay respectful attention to the decision of another judge in a materially identical case, but no more than that even if it is a judge of the same court.” The panel noted that this “requirement” is limited not only by the phrase “pay respectful attention,” but also by the phrase “materially identical case.” Two class actions involving the same class are not necessarily “materially identical,” according to the Seventh Circuit, as to such issues as the adequacy of the class representative or the suitability of class counsel. While Stemken, according to the court, was “materially identical” to the two prior class actions, the judge “gave plausible reasons for her disagreement with the [first two] judges. . . . Can more be required?”
The most significant question raised by Stemken, however, is one in which the Seventh Circuit echoed the practical arguments of the defendants: “Without a rule of preclusion, class action lawyers can . . . keep bringing class actions until they draw a judge who is willing to certify the class. . . . How are courts or legislatures to prevent class action litigation from metastasizing?” The opinion offers no answer to this question.