D. Arizona Grants Class Certification After Four-Year Delay Due to Unusual Procedural Posture and Lack of Prejudice

Per Arnold v. Arizona Dept. of Public Safety, 233 F.R.D. 537 (D.Ariz., Oct. 18, 2005) regarding Rule 23:

The Court must next determine whether that part of Plaintiffs' Motion seeking class certification should be denied as untimely filed. Plaintiffs commenced this action over four years ago and delayed in seeking class certification. Plaintiffs explain that such delay was the result of the complexity of the issues, the volume of discovery, the loss or destruction of critical evidence which prevented Plaintiffs from establishing the factors which Fed.R.Civ.P. 23 requires for class certification, the intervening appeal, and the parties' decision to participate in mediation. (document # 66 at 8) Defendants do not oppose class certification despite the significant delay in moving the Court to do so.

When Plaintiffs filed suit in 2001, Fed.R.Civ.P. 23 required a court to determine whether to certify a class “ as soon as practicable after commencement of an action.” Id. (Emphasis added). In 2003, while this case was pending in district court, Congress amended Federal Rule of Civil Procedure 23(c)(1)(A) to give federal courts more flexibility by permitting the court to consider class certification “ at an early practicable time.” Fed.R.Civ.P. 23 (2003). The amendment to Rule 23 accounts for the judicial practice of ruling on pretrial motions, including motions for summary judgment, before determining whether to certify a class. Managing Class Action Litigation: A Pocket Guide for Judges, Barbara J. Rothstein & Thomas E. Willging, FJC (2005). The advisory notes to Rule 23 provide that the more relaxed standard provides the parties and the court with the time necessary to gather information relevant to the certification decision. Advisory Committee Notes to Rule 23, Federal Rules of Civil Procedure, Rev. Ed., p. 129, Thomson/West (2004). In addition, the court may need to determine how the case will be tried, consider pretrial motions, and explore the designation of counsel before deciding whether to certify a class. Id. The Advisory Committee Notes, however, warn that the court should ensure that the certification decision is not “unjustifiably delayed.” Id. Unlike some districts, the District of Arizona has no Local Rule on timeliness for seeking class action certification.

Courts applying Rule 23, as amended, do not deny class certification based on timeliness unless the delay has prejudiced a defendant. In re Spring Ford Indus., 2004 WL 231010 (Bankr.E.D.Pa.2004). In addition, courts, including the Ninth Circuit, have held that so long as no prejudice results, it is permissible to proceed on the merits before class certification. Wright v. Schock, 742 F.2d 541, 543 (9th Cir.1984); Evans v. Taco Bell Corp., 2005 WL 2333841, *3 n. 6 (D.N.H.2005) (stating that “[i]t is well settled that, absent prejudice to the plaintiff, a court may decide a defendant's motion for summary judgment in a putative class action before taking up the issue of class certification.”).

In view of the flexibility now permitted in amended Rule 23, the unusual procedural posture of this case which contributed to the delay in seeking class certification, the Defendants' concurrence in the request for class certification, the apparent absence of any prejudice to any of the parties, and class certification would protect a larger group of people and enhance the public policy against the unlawful discriminatory practice of racial profiling, the Court finds that the motion for class certification is timely and should be considered on the merits. The Court, however, declines to rule on the merits of that motion at this time.