Dropping the Spear: The Case for Enhanced Summary Judgment Prior to Class Certification

49 Pages Posted: 23 Jan 2013

Date Written: January 10, 2010


In the swamp of summary judgment literature, academics, commentators, treatise-writers, empiricists, and practitioners pay scant attention to the role of summary judgment in class action litigation, prior to class certification. This lacuna is perhaps justified by the corresponding scant attention paid by courts in reported decisions, at least to summary judgment prior to class certification. This is unfortunate.

This brief article makes the case for enhanced judicial scrutiny of summary judgment motions prior to the class certification decision. This argument is congruent (and convergent) with the Supreme Court's summary judgment trilogy, the Court's twin pleading decisions in Twombly and Iqbal, the Third Circuit's decision in Hydrogen Peroxide, and the suggestions from various quarters that courts ought to evaluate the merits of proposed class actions during the class certification process. Summary judgment prior to class certification, then, is a logical and desirable extension of these trends.

This article argues that summary judgment before class certification embodies a sensible timing accommodation between the heightened pleading requirements of Twombly/Iqbal and the heightened class certification requirements of Hydrogen Peroxide. The argument for a summary judgment determination prior to class certification is based on the fact that class certification changes the litigation dynamic, being disconnected from the underlying merits of the dispute. The argument for summary judgment prior to class certification is based on the simple premise that if an individual plaintiff's case is so fatally defective (factually and legally) even after discovery, then the court ought to end the case and not permit class certification to proceed. The argument for summary judgment prior to class certification is based on efficiency and fairness rationales; summary adjudication before class certification supports the goals of Federal Rule of Civil Procedure 1 to secure the just, speedy, and inexpensive determination of all civil actions. This is especially compelling when confronted with a legally and factually deficient complex litigation.

This proposal for pre-certification summary judgment adjudication does not violate the so-called Eisen rule. It has nothing to do with the Eisen rule, because the Eisen rule only comes into play at the point at which a judge must evaluate whether to certify a proposed class action. Pre-certification evaluation of a summary judgment motion effectively avoids the Eisen rule by forcing a merits determination prior to class certification, in an individual case setting. If an individual plaintiff has a viable claim, pre-certification summary judgment adjudication will not undermine the possibility for class litigation. On the contrary, if a plaintiff has a fatally defective case after summary judgment discovery, then courts ought not to sanction a plaintiff's advantage achieved through class certification of an aggregation of multiple bad claims. Moreover, if a plaintiff at summary judgment drops the spear of class litigation and no one else rises to champion the class, then the litigation ought to be at an end.

Keywords: Class certification, summary judgment, motion practice, Hydrogen Peroxide, Federal Rule 23, Federal Rule 56, rigorous analysis

Suggested Citation

Mullenix, Linda S., Dropping the Spear: The Case for Enhanced Summary Judgment Prior to Class Certification (January 10, 2010). Akron Law Review, Vol. 43, 2010, U of Texas Law, Public Law Research Paper No. 255, Available at SSRN: https://ssrn.com/abstract=2205505

Linda S. Mullenix (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)

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