United States District Court, D. New Jersey
September 16, 2005.
Engers, et al.
AT&T, et al.
The opinion of the court was delivered by: JOSE LINARES, District Judge
LETTER-OPINION & ORDER
This matter is before the Court on plaintiffs' Rule 72.1(c)(2)
objection to Judge Hedges' Order denying modification of the
class definition. The Court has considered all submissions. There
was no oral argument. See Fed.R.Civ.P. 78.
On November 17, 2004, Judge Hedges denied plaintiffs' motion to
amend the class definition, set forth in the Court's Order dated
November 19, 2001, to remove the proviso that a class member must
be "currently over age forty." (Hedges, J., Order of 11/17/04 ¶
Plaintiffs appeal the Order under Local Civil Rule 72.1(c)(2).
They argue that defendants originally agreed in principle to
remove the age-forty limitation, that the current definition is
under-inclusive and ambiguous, that Judge Hedges failed to submit
his findings in accordance with Rule 72.1(a)(2), and that changed
factual circumstances warrant amendment. Discussion
Preliminarily, the Court addresses the proper standard of
review. The relevant statute, 28 U.S.C. § 636, provides that a
magistrate judge ruling on "a motion . . . to dismiss or to
permit maintenance of a class action" is, upon objection by the
losing party, reviewable de novo. See § 636(b)(1)(A)-(C).
Plaintiffs' motion to amend this Court's November 2001 Order to
redefine the class can be characterized as a motion under Federal
Rule of Civil Procedure 23(c)(1)(C). Consequently, the Court is
satisfied that Judge Hedges' Order of November 17, 2004 concerned
"maintenance of a class action," and it will review the Order de
Under Rule 23(c)(1)(C), the Court may amend its previous order
certifying a class "if, upon fuller development of the facts, the
original determination appears unsound." Fed.R.Civ.P.
23(c)(1), advisory committee's note to 1966 amend.; accord
Zenith Labs., Inc. v. Carter-Wallace, Inc., 530 F.2d 508, 512
(3d Cir. 1976). The Court is "obliged to take cognizance of a
changed factual situation. . . ." Zenith, 530 F.2d at 512.
In support of their motion, plaintiffs purport to identify two
such changes: first, the Court's dismissal of the last age
discrimination claim on June 6, 2001, supposedly rendering the
age-forty limitation arbitrary; and second, the confusion over
the meaning of the word "currently" that has allegedly surfaced
since the class was certified. The Court deems neither of these
With respect to the Court's dismissal of the age discrimination
claims, that dismissal was effectuated in the very same order
that certified the class. Indeed, the Court did not explicitly
define the class until November 19, 2001, more than five months
after its dismissal of the age discrimination claims, when it set
forth the class definition in a formal order. Therefore, the
supposedly changed circumstance of dismissal occurred, at the
earliest, concurrently with certification of the class, and
arguably even before the class was certified. Clearly, then,
dismissal of the age discrimination claims more than three years
ago does not constitute a "changed factual circumstance."
With respect to alleged confusion over the word "currently,"
the Court deems this irrelevant. The proper remedy for class
members confused by class definitions is an explanation from
counsel, not a vast expansion of the class through elimination of
words that may or may not be confusing to laymen. This confusion
the existence of which, incidentally, is supported only by an
e-mail from one putative class member cannot fairly be
characterized as a change in circumstances.
Putting aside plaintiffs' failed assertions of changed factual
circumstances, the Court has reviewed the record and finds no
basis for amending its class definition pursuant to Rule
23(c)(1)(C). Neither in their original moving brief nor in their
instant motion do plaintiffs address the prerequisites for
certification set forth in Rule 23(a). The arguments they do
advance, set forth above, have little or no bearing on class
certification. It is indisputable that removing the age-forty limitation will expand the class, thereby
creating issues concerning, at a minimum, adequate representation
and the need to reopen discovery.*fn1 In the absence of even
an attempt by plaintiffs to demonstrate that Rule 23(a)'s
requirements would be met were the class expanded, the Court will
not redefine the class. This is especially so considering
plaintiffs' inexplicable failure to raise this issue, of which
they have been aware for several years, until this action reached
the heart of its summary judgment phase. See Sobel v. Yeshiva
Univ., 85 F.R.D. 322, 325 (S.D.N.Y. 1980).
For the reasons set forth above, plaintiffs' motion  to
vacate Judge Hedges' Order denying modification of the class
definition is DENIED.
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