### FILED April 6, 2017 released at 3:00 p.m. RORY L. PERRY, II CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2017 Term

No. 16-0331

GMS MINE REPAIR AND MAINTENANCE, INC.,

Defendant Below, Petitioner

v. JEFFREY S. MIKLOS, Plaintiff Below, Respondent

Petition for Writ of Prohibition WRIT GRANTED AND REMANDED WITH INSTRUCTIONS

Submitted: January 24, 2017 Filed: April 6, 2017

Avrum Levicoff, Esq. Jonathan R. Marshall, Esq. Sunshine R. Fellows, Esq. Patricia M. Kipnis, Esq. The Levicoff Law Firm, P.C. Sandra Henson Kinney, Es q. Pittsburgh, Pennsylvania Bailey & Glasser, LLP Counsel for Petitioner Charleston, West Virginia Jason E. Causey, Esq. Bordas & Bordas, PLLC Wheeling, West Virginia Rodney A. Smith, Esq. Todd S. Bailess, Esq.Bailess Smith, PLLC Charleston, West Virginia Counsel for Respondents
CHIEF JUSTICE LOUGHRY delivered the Opinion of the Court.SYLLABUS BY THE COURT
1. “A writ of prohibition is available to correct a clear legal error resulting from a trial court’s substantial abuse of its discr etion in regard to discovery orders.” Syl. Pt. 1, State Farm Mut. Auto. Ins. Co. v. Stephens ,188 W.Va. 622, 425 S.E.2d 577 (1992).

2. “Rule 16(b) of the West Virginia Rules of Civil Procedure [1998] requires active judicial management of a case, and mandates that a trial court ‘shall . . . enter a scheduling order’ establishing time frames for the joinder of parties, the amendment of pleadings, the completion of discovery, the filing of dispositive motions, and generally guiding the parties toward a prompt, fair and cost- effective resolution of the case.” Syl. Pt. 2, Caruso v. Pearce , 223 W.Va. 544, 678 S.E.2d 50 (2009).

3. Where the interests of judicial efficiency and economy warrant, a circuit court may defer ruling on class certification under Rule 23(c)(1) of West Virginia Rules of Civil Procedure until a motion for summary judgment directed to the purported class representative’s claim is decided.

4. When a circuit court elects to defer ruling on the issue of class certification pending its decision on a motion for summary judgme nt, class discovery should be stayed until such time as the circuit court decides the mo tion, unless the non-moving party has
idemonstrated that significant prejudice will result from a discovery stay. Whether a party has demonstrated significant prejudice will necessarily require the circuit court to consider the procedural posture of the case and fairness to the parties in conjunction with the objective of advancing the goal of a “just, speedy, and inexp ensive determination of every action.” See W.Va. R. Civ. P. 1.

iiLOUGHRY, Chief Justice:

The petitioner (defendant below), GMS Mine Repair a nd Maintenance, Inc., appeals the circuit court’s interlocutory order ent ered on March 3, 2016, through which it denied the petitioner’s motion to stay class discov ery. Assigning error in the circuit court’s ruling, the petitioner asserts that the stay was so ught to promote effective case management procedures and thereby achieve a just, speedy, and inexpensive resolution of this putative class action. Although the petitioner invites this Court to extend the collateral order doctrine to interlocutory discovery orders that implicate ca se management, we decline to do so. Instead, we choose to consider this matter as a petition for a writ of prohibition. 1 Upon our careful review of the parties’ briefs, the argument s of counsel, the appendix record submitted, and the applicable law, we grant the writ and reman d this action to the circuit court for further proceedings consistent with this opinion.

1 See W.Va. R. A. P. 2 (“In the interest of expediting de cision, or for other good cause shown, the Supreme Court may suspend the requiremen ts or provisions of any of these Rules in a particular case on application of a party or o n its own motion and may order proceedings in accordance with its direction. These Rules shal l be construed to allow the Supreme Court to do substantial justice.”); see also State ex rel. Register-Herald v. Canterbur y , 192 W.Va. 18, 19 n.1, 449 S.E.2d 272, 273 n.1 (1994) (“In thi s case, it is logical to treat the appeal filed by Mr. Thomas as a prohibition since it challenges the scope of the injunction entered by the circuit court.”); cf. State ex rel. Lloyd v. Zakaib , 216 W.Va. 704, 705 n.1, 613 S.E.2d 71, 72 n.1 (2005) (treating petition for writ of prohibiti on as petition for appeal). 1I. Facts and Procedural Background On June 9, 2015, the respondent (plaintiff below), Jeffrey S. Miklos, filed a putative class action alleging the petitioner had f ailed to pay him and other similarly situated employees their final wages within the time period mandated by the West Virginia Wage Payment and Collection Act, West Virginia Code §§ 2 1-5-1 to -18 (2013 & Supp. 2016) (the “Act”). Specifically, the respondent alleged the p etitioner terminated his employment on February 9, 2015, and then failed to pay his final wages within four business days of his termination from employment as required under the A ct. 2

On June 17, 2015, the respondent served his summons and complaint upon the petitioner. Having received an extension of time b y which to answer the complaint, the petitioner filed its answer on August 19, 2015.

2 At the time the respondent’s employment was termina ted, West Virginia Code § 21- 5-4 (2013), provided:

(b) Whenever a person, firm or corporation discharg es an employee, the person, firm or corporation shall pay the employee’s wages in full no later than the next reg ular payday or four business days, whichever comes first. Paym ent shall be made through the regular pay channels or, if reques ted by the employee, by mail. For purposes of this section, “ business day” means any day other than Saturday, Sunday or any le gal holiday as set forth in section one, article two, chapter t wo of this code. Id. Effective June 11, 2015, the Legislature amended West Virginia Code § 21-5-4 by, inter alia, deleting the words “four business days” and p roviding that final wages are to be paid to a discharged employee “on or before the next reg ular payday on which the wages would otherwise be due and payable[.]” Id. (Supp. 2016). 2Along with the summons and complaint, the responden t simultaneously served

the petitioner with interrogatories and requests fo r production of documents. These discovery requests were directed not only to the re spondent’s individual wage claim, but also to the scope and membership of the purported class, seeking the identification of all the petitioner’s employees in West Virginia who were di scharged within the last five years. For each discharged employee, the respondent sought inf ormation concerning the last day worked, the date the employee was informed of his/h er termination, the official termination date, the gross amount of wages paid upon terminati on of the employment, an itemized description of the wages paid, and the manner in wh ich the wages were paid. The respondent further sought records evidencing the date of disch arge for such employees, including copies of letters and memoranda regarding the employees’ d ischarge, notices, write-ups, e-mails, documentation regarding final paychecks, and the la st known home address and telephone number for each discharged employee.

The petitioner did not respond to the discovery req uests within the prescribed time period under the rules of civil procedure. Th ere were communications, however, between the parties’ attorneys concerning discovery . The petitioner’s counsel suggested that it would be a better use of the parties’ resources and energy to defer class discovery 3 pending

3 The parties use the terms “class discovery” and “cl ass-based discovery.” Under the current procedural posture of the litigation, such discovery may be more accurately described (continued...) 3the development and resolution of a threshold legal issue of statutory construction that could

be dispositive of the respondent’s wage claim. 4 The respondent’s counsel disagreed and rejected the petitioner counsel’s proposal. Therea fter, on December 18, 2015, the petitioner answered the respondent’s discovery requests direct ed to his individual claim but objected to the class discovery as being overly broad, undul y burdensome, 5 and premature.

On December 22, 2015, the petitioner filed a motionto stay class discovery, requesting that such broad and possibly needless di scovery be deferred pending the circuit court’s ruling on the central legal question, whichthe petitioner intended to raise in a motion

3 (...continued) as “precertification discovery” or “certification-r elated discovery.” See William B. Rubenstein, Newberg on Class Actions, § 7.14, p. 67 (5 th ed. 2013) (“Discovery related to the certification motion is sometimes referred to a s ‘precertification discovery’ though it is more accurate to label it ‘certification-related di scovery.”). We also recognize, however, that certification-related discovery may overlap with me rit-based discovery. Id. , § 7.17, p. 82. For purposes of our opinion today, we follow the parties’ lead and simply use the term “class discovery.”

4 The parties have differing interpretations of what constitutes a “discharge” for purposes of the timely payment of final wages under the Act. The respondent alleges he was involuntarily terminated from employment on February 9, 2015, making the payment of his final wages on February 20, 2015, untimely under th e Act. Conversely, the petitioner alleges that it made its decision to discharge the responde nt on February 14, 2015, making its payment of the respondent’s final wages timely unde r the Act. See supra note 2. The petitioner argues that the circuit court’s ruling o n what “discharge” means under the Act will be dispositive of the petitioner’s claim. We expre ss no opinion on the merits of this issue of statutory construction.

5 Because it does not maintain the information sought in discovery in a “conveniently accessible electronic form,” the petitioner alleges there is “considerable burden attendant upon compliance” with the class discovery sought. 4for summary judgment. 6 The petitioner argued that “with only a small amo unt of further

development,” the evidentiary record will show that the respondent received his final wages in accordance with the Act, at which point his clai m fails and he would not be a proper class representative. Arguing further, the petitioner st ated:

[It] should not be required to engage in overly bur densome, disruptive and expensive class discovery until Plai ntiff first makes a prima facie showing that he himself has a viable claim. Defendant therefore respectfully requests that this Court use its inherent authority to regulate the course of discov ery to minimize any unfair burden. Doing so will allow fo r an orderly progression of the case, and will not prejudice any parties or unnecessarily delay this action.

On February 29, 2016, the respondent filed a respon se in opposition to the motion for a stay. 7 The respondent argued that the petitioner had wai ved its objections by failing to either timely answer the discovery or re quest an extension of time to answer; that even if the objections had not been waived, they we re meritless; and that, in any event, discovery should not be stayed to allow the petitio ner to file a dispositive motion.

The circuit court held a hearing on the motion and subsequently entered an order on March 3, 2016, denying the request to stay class discovery. The circuit court simply

6 The circuit court’s docketing statement in the appe ndix record reflects that the petitioner filed its motion for summary judgment onMay 20, 2016.

7 The circuit court’s docketing statement in the appe ndix record reflects that the respondent filed a motion to compel discovery on Fe bruary 25, 2016. 5found, as the respondent had argued, that the petitioner had waived its objections to class

discovery, as they were untimely raised, and had fu rther failed to meet its burden of demonstrating why such discovery should not proceed . Relying upon Love v. GeorgiaPacific Corporation , 214 W.Va. 484, 590 S.E.2d 677 (2003), and Gulus v. Infocision Management Corporation , 215 W.Va. 225, 599 S.E.2d 648 (2004), 8 the circuit court found that class discovery is appropriate when there is f actual uncertainty. It is from these rulings that the petitioner seeks relief.

II. Standard of Review

The petitioner seeks our review of the circuit court’s interlocutory order under the collateral order doctrine. 9 While the petitioner describes the issue as one of case management, the circuit court’s order is a discovery ruling through which it denied a request to stay discovery on the grounds of timeliness and waiver. Although we decline to extend the collateral order doctrine to interlocutory disc overy rulings as the petitioner requested, there is an alternative mechanism for obtaining rev iew. In State Farm Mutual Automobile Insurance Co. v. Stephens , 188 W.Va. 622, 425 S.E.2d 577 (1992), we held tha t “[a] writ of

8 These cases are discussed infra

. See III. B.

9 See Credit Acceptance Corp. v. Front, 231 W.Va. 518, 523, 745 S.E.2d 556, 561 (2013) (“An interlocutory order would be subject to appeal under [the collateral order] doctrine if it (1) conclusively determines the disp uted controversy, (2) resolves an important issue completely separate from the merits of the ac tion, and (3) is effectively unreviewable on appeal from a final judgment.”) (internal citati on omitted). 6prohibition is available to correct a clear legal e rror resulting from a trial court’s substantial

abuse of its discretion in regard to discovery orde rs.” Id. , at 624, 425 S.E.2d at 579, syl. pt. 1; see also accord State ex rel. Potomac Trucking and Excavating, Inc. v. Courrier , No. 16-0183, 2016 WL 5851925 (W.Va. Oct. 6, 2016) (memo randum decision) (issuing writ of prohibition where circuit court acted outside scope of discovery rule by ordering defendant’s employee to participate in accident recreation); State ex rel. Erickson v. Hill , 191 W.Va. 320, 445 S.E.2d 503 (1994) (issuing writ of prohibition because circuit court had abused its discretion in ordering Ms. Erickson to respond to b urdensome and oppressive discovery). Accordingly, we elect to entertain this matter unde r our original jurisdiction in prohibition and review the circuit court’s ruling under an abus e of discretion standard.

III. Discussion The petitioner’s assignment of error involves issue s of case management and whether a threshold legal issue should be resolved prior to conducting class discovery. We consider these matters in turn below.

A. Case Management Through its motion to stay class discovery, the petitioner identified a potentially dispositive issue of statutory construc tion related to the respondent’s individual claim. The petitioner argues that the circuit court erred by ignoring this legal issue; by ruling

7that its objections to class discovery were waived as untimely asserted; and by summarily

rejecting its request for a stay. Maintaining that the circuit court’s failure to recognize the case management implications and the protective nature of its request for a stay is particularly onerous, the petitioner notes that the court had failed to implement any of the case management procedures provided under the West Virginia Rules of Civil Procedure. Specifically, the petitioner points to the absence of any scheduling order or scheduling conference under Rule 16, or a case management conf erence or discovery conference under Rules 26(f). Asserting that the need for efficient management of discovery is especially critical in putative class actions, the petitioner argues that in the absence of either a properlyconducted case management and/or discovery conferen ce or entry of a scheduling order, the circuit court’s refusal to defer class discovery pe nding a determination of a “narrow and fundamental dispositive legal issue in this litigation” constitutes an abuse of discretion.

The respondent counters that the circuit court corr ectly denied the petitioner’s motion for a stay on the basis that any objections to class discovery had been waived by the petitioner’s untimely assertion of such challenges. The respondent observes that the sequence of discovery and whether discovery should be stayed is within a trial court’s discretion.

8In this Court’s opinion, we are compelled to conclu de that the circuit court’s

waiver ruling 10 and finding that the petitioner had no excuse for not timely responding to discovery were exceptionally harsh where the partie s’ counsel had endeavored, albeit unsuccessfully, to resolve the timing of class disc overy; the petitioner soon thereafter fully answered the discovery directed to the respondent’s individual claim and filed its motion for a stay of class discovery; the respondent had not m oved to compel discovery responses prior to the petitioner moving for a stay; and the respon dent did not move to compel until two months after the petitioner filed its motion. 11 Further, although the lack of case management was identified in the petitioner’s motion for a sta y, the circuit court did not undertake to fulfill its role in that regard, prompting the peti tioner to file a motion on April 5, 2016, seeking a Rule 16 scheduling conference and a Rule 26(f) discovery conference.

When presented with these circumstances, the circu it court should have ruled upon the merits of the petitioner’s motion with particular consideration to its management of this putative class action, including whether cl ass discovery should be stayed pending resolution of the threshold legal issue that had be en identified. Rather than addressing the significant concerns raised in the petitioner’s motion related to the timing of class discovery,

10 “[A]s a practical matter interrogatories are seldom answered on time, for the simple fact that it is often very difficult to do so withi n time period set out under Rule 33(b)(3).” Franklin D. Cleckley, Robin J. Davis & Louis J. Pal mer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure , § 33(b)(3)[2], p. 877 (4th ed. 2012).

11 See supra note 7. 9the circuit court simply deemed the petitioner’s di scovery objections waived. Critically,

whether the petitioner’s objections were waived as untimely does not resolve the issue of whether such discovery should be stayed until such time as the circuit court rules on the dispositive legal issue that had been identified by the petitioner. Certainly, “Rule 26(c)(2) may be used to stay discovery pending the outcome o f a dispositive motion or other matter.” Cleckley, et al. , Litigation Handbook , § 26(c)(2)[2], p. 750. Here, the circuit court’s discovery ruling exacerbated the impact of its fail ure to hold a discovery conference under Rule 26(f); enter an order establishing a plan and schedule for discovery; set limitations on discovery, if any; or determine such other matters necessary for the proper management of discovery in the action. W.Va. R. Civ. P. 26(f).

In addition, the circuit court also failed to emplo y the case management tools provided under Rule 16:

In any action, the court may in its discretion dire ct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences before trial for such purposes as: (1) Expediting the disposition of the action; (2) Establishing early and continuing control so th at the case will not be protracted because of lack of managemen t; (3) Discouraging wasteful pretrial activities[.] W.Va. R. Civ. P. 16(a), in part. In fact,

10Rule 16 . . . “is the principal source of the powe rs and tools that . . . courts are to use to achieve the fundamental purpose articulated by Rule 1 of the . . . Rules of Civil P rocedure: securing ‘the just, speedy, and inexpensive determi nation of every action and proceeding.’” James Wm. Moore, 3 Moore’s Federal Practice, 3d Edition § 16.03 (2007).
Caruso v. Pearce , 223 W. Va. 544, 548, 678 S.E.2d 50, 54 (2009). I mportantly, Rule 16 mandates active judicial management of a case:

(b) Scheduling and Planning. — Except in categories of actions exempted by the Supreme Court of Appeals, the judge shall , after consulting with the attorneys for the parties and any unrepresented parties, by a scheduling conference, telephone, mail or other suitable means, enter a scheduling or der that limits the time: • • • • (3) To complete discovery. The scheduling order also may include: • • • • (5) Any other matters appropriate in the circumstan ces of the case. W.Va. R. Civ. P. 16(b), in part (emphasis added). This rule further provides that the circuit court may take appropriate action at any conference held under the rule concerning:

(1) The formulation and simplification of the issue s, including the elimination of frivolous claims or defenses; • • • • (5) The appropriateness and timing of summary adjud ication under Rule 56; (6) The control and scheduling of discovery; • • • • (12) The need for adopting special procedures for m anaging potentially difficult or protracted actions that ma y involve

11complex issues, multiple parties, difficult legal q uestions, or unusual proof problems; • • • • (16) Such other matters as may facilitate the just, speedy, and inexpensive disposition of the action. W.Va. R. Civ. P. 16(c), in part.

In short, the case at bar presents a clear example of a situation where the parties would have benefitted had the circuit court simply undertaken its managerial role that is mandated by our Rules of Civil Procedure. See Caruso , 223 W.Va. at 546, 678 S.E.2d at 52, syl. pt. 2 (“Rule 16(b) of the West Virginia Rules of Civil Procedure [1998] requires active judicial management of a case, and mandates that a trial court ‘shall . . . enter a scheduling order’ establishing time frames for the joinder of parties, the amendment of pleadings, the completion of discovery, the filing of dispositive motions, and generally guiding the parties toward a prompt, fair and cost-effective resolution of the case.”). Indeed, “[t]he absence of a Rule 16(b) scheduling order ‘can result in lack o f focus, inefficiency, and delays in disposition.’ James Wm. Moore, 3 Moore’s Federal Practice , 3d Edition § 16.10 [2].”
Caruso , 223 W.Va. at 549, 678 S.E.2d at 55.

Just as in Caruso , the circuit court failed to enter a scheduling or der despite the mandatory directive of Rule 16(b). Certainly, the entry of a scheduling order under Rule 16 and/or a discovery conference and management order under Rule 26(f) would have revealed

12the benefits of staying class discovery in this matter. Moreover, such conferences and orders

would have aided the circuit court in fulfilling th e mandate set forth in Rule 23(c)(1): “As soon as practicable after the commencement of an ac tion brought as a class action, the court shall determine by order whether it is to be so mai ntained.”

In summary, the parties’ briefs and the circuit cou rt’s docketing statement in the appendix record reveal that the circuit court abdicated its role to actively manage this putative class action. The respondent filed his co mplaint on June 9, 2015, yet the first order entered by the circuit court was not a mandatory sc heduling order or a discovery management order but instead the March 3, 2016, order denying the petitioner’s motion to stay class discovery. Through that order, the circuit court, which had yet to act, found waiver because the petitioner had failed to act quickly enough. R esultantly, the threshold legal issue 12 that could obviate the need for class discovery remains unaddressed. Under these circumstances, we find the circuit court substantially abused its discretion with its issuance of the subject discovery ruling.

B. Class Discovery and Motions for Summary Judgmen t We now turn to the issue of whether class discovery should proceed when a defendant files or intends to file a motion for summary judgment on the purported class

12 See supra note 4. 13representative plaintiff’s individual claim. The p etitioner asserts that a stay of class

discovery is a generally recognized method for deal ing with class issues, particularly where, as here, “there is substantial doubt about the viab ility of Respondent’s individual claim, and because the expense and burden of class discovery w ill be rendered meaningless if the summary judgment motion is successful[.]” The peti tioner maintains that “the circuit court did not consider the vast weight of authority throu ghout the country explicitly recognizing that a just, speedy, and inexpensive resolution of a putative class action can be obtained by resolving motions for summary judgment on the namedplaintiff's claims before conducting class discovery.” Conversely, the respondent argue s that Rule 23 of the West Virginia Rules of Civil Procedure requires a determination of clas s certification “‘[a]s soon as practicable after the commencement of an action brought as a cl ass action,’ 13 which “strongly supports a trial court’s decision to permit early class disc overy.” Citing a handful of federal decisions where courts refused to stay class discovery while a defendant sought summary judgment, 14

13 W.Va. R. Civ. P. 23(c).

14 See True Health Chiropractic Inc v. McKesson Corp., No. 13-cv-02219-JST, 2015 WL 273188 , * 1, *3 (N.D. Cal. Jan. 20, 2015) (observing that “[t]he de cision to bifurcate discovery in putative class actions prior to certif ication is committed to the discretion of the trial court” and finding that “bifurcation of disco very at this time is not warranted.”); Adams v. AllianceOne, Inc. , No. 08-CV-248-JAH (WVG), 2011 WL 2066617, *2 (S.D . Ca. May 25, 2011) (“Defendant resisted further class discovery on grounds that a grant of its summary judgment motion would vitiate the need for the disc overy. After consideration, the Court denied Defendant’s motion to stay discovery, again ordered Defendant to produce documents, and warned Defendant of the consequence of not complying.”); Donnelly v. NCO Fin. Sys., Inc. , 263 F.R.D. 500, 502 (N.D. Ill. 2009) (granting, i n part, plaintiff’s motion to compel discovery and denying defendant’s motion to stay class discovery pending resolution (continued...) 14the respondent asserts that staying such discovery would simply allow the petitioner, who

failed to produce any evidence demonstrating why a stay should be ordered, to further delay these proceedings. 15

As we begin our analysis, we are mindful that “‘a c lass cannot be certified unless the named plaintiffs have a cause of action. ’” Avery v. State Farm Mut. Auto. Ins. Co. , 835 N.E.2d 801, 827 (Ill. 2005) (internal citations omitted). 16 In Addo v. Aliloska , No. 1-14-

14 (...continued) of “‘to-be-filed’” motion for summary judgment); Wike v. Vertrue, Inc. , No. 3:06-0204, 2007 WL 869724, at *11 (M.D. Tenn. Mar. 20, 2007) (overruling as moot defendant’s challege to magistrate judge’s decision not to stay class di scovery pending district court's decision on dispositive motion). These cases confirm, as do the cases cited, infra , that whether to stay discovery is subject to a trial court’s discretion.

15 The respondent has cited a few federal district cou rt cases in West Virginia where class discovery was ordered. Those discovery decis ions appear to have been tied to the particular facts and procedural posture of each cas e. Other courts caution against precertification class discovery, particularly wher e there is a question as to the viability of the purported class representative’s claim. See, e.g., First Am. Title Ins. Co. v. Superior Court , 53 Cal.Rptr.3d 734, 742 (Cal. Ct. App. 2007) (fin ding trial court abused its discretion in granting precertification discovery where named plaintiff was never member of purported class and observing that court “must weigh the dang er of possible abuses of the class action procedure against the rights of the parties under the circumstances”).

16 We observe that the Illinois class action rule, 735 ILCS 5/2-801, is similar to Rule 23 of the West Virginia Rules of Civil Procedure inthat both consider issues of typicality, commonality, numerosity, and adequacy of representa tion. See W.Va. R. Civ. P. 23(a), in part (“One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that jo inder of all members is impracticable, (2) there are questions of law or fact common to the cl ass, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately p rotect the interests of the class.”). 150765, 2015 WL 9594034 (Ill. App. Ct. Dec. 31, 2015) , the court addressed issues related to

the potential class action brought by the plaintiff , who had alleged, inter alia, statutory violations relating to her residential tenancy. Th e trial court found that the time-line in the payment of rent, as revealed in discovery directed to the plaintiff, demonstrated she would not be entitled to any damages nor be able to state a cause of action under a landlord tenant ordinance. Because the named plaintiff lacked a cl aim, the appellate court decided she could not bring a class action: “Where, as here, a putati ve class representative has no valid claim in her own right, she cannot bring such a claim on behalf of a putative class. . . . Since plaintiff could not maintain an individual claim un der class action count I, we affirm the . . . order dismissing class action count I.” Id. at *9.

In Perrine v. E.I. du Pont de Nemours and Co. , 225 W.Va. 482, 694 S.E.2d 815 (2010), this Court addressed three separate appeals in an environmental class action lawsuit. Justice Ketchum penned a separate opinion 17 in which he opined that the “[trial] court’s exclusion of evidence central to the claim of a lea ding class representative turns the class-action concept on its head.” Perrine , 225 W.Va. at 592, 694 S.E.2d at 925 (Ketchum, J., dissenting, in part, and concurring, in part). Justice Ketchum further observed that “[t]he class’s case depended on the class representatives’ case.” Id. , at 593, 694 S.E.2d at 926

17 Justice Ketchum concurred in the award of a new tri al and in the ruling that punitive damages are not recoverable in medical monitoring c laims, but otherwise dissented. 16(internal citations omitted). Citing the Illinois case of Avery with favor, Justice Ketchum

stated: Mrs. Perrine was a lead class representative in thi s case

. . . . The fact that she showed no signs of expos ure (much less significant exposure) counts against any award of c lass-wide relief. See , Avery v. State Farm Mut. Auto. Ins. Co. , 216 Ill.2d 100, 139, 296 Ill.Dec. 448, 835 N.E.2d 801, 827 (20 05) (“It is well settled that a class cannot be certified unles s the named plaintiffs have a cause of action.”). Fundamental t o a class action is that the class representative is “typical ” of and serves as a proxy for the absent class members, permitting the jury to evaluate the class’s claims by evaluating the class representative’s claims. Thorn v. Jefferson-Pilot Life Ins. Co. , 445 F.3d 311, 318 (4th Cir. 2006). (A class action “allows a representative party to prosecute his own claims an d the claims of those who present similar issues.”); Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 1:1, at 2 (4th ed. 2002) (Class actions are “[r]epresentative suits on behal f of others similarly situated.”).
Perrine , 225 W.Va. at 592, 694 S.E.2d at 925. We are info rmed by Justice Ketchum’s analysis in Perrine as we consider the issue currently before the Court.

Turning to the cases cited by the circuit court in refusing to stay class discovery, Love v. Georgia-Pacific Corp. , 214 W.Va. 484, 590 S.E.2d 677 (2003), and Gulas v. Infocision Managment Corp. , 215 W.Va. 225,599 S.E.2d 648 (2004), we agree with the petitioner that neither case supports the circuit c ourt’s decision. In Love , six years after the action was initially filed, the plaintiff filed a m otion to conduct class discovery and a motion to certify a class. The circuit court denied both motions. The plaintiff appealed the denial

17of class certification, arguing such decision was p remature. On appeal, the majority of this

Court found the circuit court erred in denying clas s certification without first allowing the plaintiff to conduct discovery on the prerequisites for class certification. Similarly, in Gulas , we addressed a circuit court’s denial of class certification. Finding the record on appeal insufficient to determine whether the denial shouldbe upheld, we remanded the action for limited discovery on class certification. We obser ved, as we had in Love , that “‘[t]he party who seeks to establish the propriety of a class action has the burden of proving that the prerequisites of Rule 23 of the West Virginia Rules of Civil Procedure have been satisfied.’” Gulas , 215 W.Va. at 228, 599 S.E.2d at 651 (internal cit ations omitted).

Any reliance on Love and Gulas to resolve the specific discovery issue before the circuit court was improper. Critically, unlike those cases, we are not reviewing an order denying class certification, which has yet to be ad dressed by the circuit court. Further, the denial of a motion to amend a complaint is not befo re us, as it was in Gulas. Instead, the ruling before us is the circuit court’s denial of the petitioner’s motion for a stay of class discovery pending the resolution of a threshold leg al issue concerning the viability of the respondent’s claim, 18 particularly in the absence of a properly conducte d case management conference and scheduling order. Moreover, staying class discovery until such time as the

18 See supra note 4. 18circuit court rules on this potentially dispositive issue is not inconsistent with either Love or

Gulas.

In McFoy v. Amerigas, Inc. ,170 W.Va. 526, 295 S.E.2d 16 (1982), this Court addressed whether the circuit court had appropriate ly ruled on the question of liability before it defined the class of plaintiffs. Although decid ed under an earlier version of Rule 23, which did not contain a time component for determining wh ether a class action could be maintained, we observed that the federal rules requ ired such a determination to be made “‘as soon as practicable after the commencement of the a ction[.]’” Id. , at 531, 295 S.E.2d at 21 (internal citation omitted). We answered the question, stating that “[w]here the factual circumstances of a case make it appropriate to dete rmine liability before determining the class of plaintiffs, it is within the court’s discr etion to do so.” Id. We later cited McFoy with approval, noting: “This is not to say . . . that Ru le 23 mandates that a circuit court in every case must fully certify a class before proceeding t o a consideration of the merits.” In West Virginia Rezulin Litigation, 214 W.Va. 52, 63 n.7, 585 S.E.2d 52, 63 n.7 (2003).

In addition, we find overwhelming support for resol ving threshold legal issues in class actions prior to conducting class discovery and ruling on class certification both in the jurisprudence of other courts and in legal trea tises. As discussed in the seminal treatise on class actions, courts deciding dispositive motio ns before ruling upon class certification

19“rely on efficiency concerns, noting that if a plai ntiff’s case clearly lacks merit and can be

disposed of quickly, the court and parties avoid th e expense of adjudicating a class suit.” William B. Rubenstein, Newberg on Class Actions , § 7.8, p. 37 (5 thed. 2013). In fact, “courts have been willing to rule on motions for su mmary judgment prior to class certification in circumstances in which it would fa cilitate efficient resolution of the case.” Newberg on Class Actions , § 7.10, p. 50. As suggested in the Federal Judic ial Center, Manual for Complex Litigation,

[t]he court may rule on motions pursuant to Rule 12 , Rule 56, or other threshold issues before deciding on certifica tion; however, such rulings bind only the named parties. Most cou rts agree . . . that such precertification rulings on threshold d ispositive motions are proper, and one study found a substanti al rate of precertification rulings on motions to dismiss or f or summary judgment. Precertification rulings frequently disp ose of all or part of the litigation.

• • • • Early resolution of these questions may avoid expen se for the parties and burdens for the court and may minimize use of the class action process for cases that are weak on the merits. Federal Judicial Center, Manual for Complex Litigation (4th) § 21.133, p. 253 (internal footnotes omitted). Other commentators sagely adv ise that

[a] court should be vigilant in deciding a summary judgment motion before certifying a class to save litigants unnecessary expense and to economize on judicial time. For the se reasons, we encourage prompt judicial consideration of summary judgment motions in class actions.

20Bruent, E., Parry, J., and Redish, M., Summary Judgment: Federal Law and Practice, §10.16

(Nov. 2016). Further, “[w]here the factual circumstances of a ca se make it appropriate to determine liability before determining the class of plaintiffs, it is within the court’s discretion to do so.” Cleckley, et al. , Litigation Handbook , § 23(c)[2], p. 614. We concur with the petitioner that “the facts of the present situation unquestionably illustrate the fundamental flaw, and resulting unfairness, of permitting a pla intiff to invoke the class action mechanism and its attendant procedures without first establis hing the existence of a viable individual claim.” Other courts agree.

In Wright v. Schock , 742 F.2d 541 (9th Cir. 1984), the plaintiffs chal lenged the district court’s grant of summary judgment in favor of the defendants, arguing the district court should first rule on class certification. Inaddressing the issue, the Ninth Circuit turned to Federal Rule of Civil Procedure 23(c)(1), which at that time provided, as does the current version of West Virginia Rule of Civil Procedure 23 (c)(1), that the court shall rule on the issue of class certification “‘[a]s soon as practic able after the commencement of an action brought as a class action. . . .’” Wright , 742 F.2d. at 543. The Ninth Circuit found that this language left “‘much room for discretion’” and that the word “‘practicable’ . . . calls upon judges ‘to weigh the particular circumstances of particular cases and decide concretely what will work[.]’” Id. (internal quotations and citations omitted). After considering the decisions of other federal courts of appeal in which summary judgment rulings were made prior to

21addressing class certification, the Ninth Circuit d etermined that “the timing provision of Rule

23 is not absolute. Under the proper circumstances –where it is more practicable to do so and where the parties will not suffer significant preju dice–the district court has discretion to rule on a motion for summary judgment before it decides the certification issue.” Wright , 742 F.2d at 543-44. 19

InCurtin v. United Airlines, Inc. , 275 F.3d 88 (D.C. Cir. 2001), the appellate court explained that

it is often more efficient and fairer to the partie s to decide the class question first. But that was not so in this case where, as we discuss below, the district court readily and co rrectly

19 In 2003, Federal Rule of Civil Procedure 23 was ame nded to provide for the determination of class certification “at an early p racticable time[,]” rather than “as soon as practicable,” as previously provided. The Advisory Committee drafting this change “noted that providing courts with additional time served s everal important goals, including the fact that ‘[t]he party opposing the class may prefer to win dismissal or summary judgment as to the individual plaintiffs without certification andwithout binding the class that might have been certified.’” Newberg on Class Actions § 7:8, pp. 38-39; see also Blake v. Financial Mgmt. Sys., Inc. , No. 11 C 612, 2011 WL 4361560, *3 (N.D. Ill. Sept . 19, 2011) (“The 2003 amendment to Rule 23 seems to recognize that timing will vary based on the circumstances of individual cases, and the class certification de cision may not always be the first substantive decision made in a case filed as a clas s action.”). Although our Rule 23 still provides that whether an action is to be maintainedas a class action is to be decided “as soon as practicable,” we find persuasive the federal dec isions ruling on dispositive motions prior to class certification, particularly since many of those decisions predate the 2003 change to the federal class action rule. Accord Newberg on Class Actions § 7:8 (“[T]he trend in the federal courts over the past few decades has been to . . . decide dispositive motions prior to the certification motion.”) (emphasis added). Further, “[b]ecause the West Virginia Rules of Civil Procedure are practically identical to the Federal Rules, we give substantial weight to federal cases . . . in determining the meaning a nd scope of our rules.” Painter v. Peavy , 192 W.Va. 189, 192 n.6, 451 S.E.2d 755, 758 n.6 (19 94). 22perceived fatal flaws in plaintiffs’ claims. Rever sing the usual order of disposition in such circumstances spares b oth the parties and the court a needless, time-consuming in quiry into certification. See F EDERAL J UDICIAL C ENTER , M ANUAL FOR C OMPLEX L ITIGATION (Third) § 30.11 (1995) (stating that “[w]hen it is clear that the action lacks merit, di smissal [before certification] will avoid unnecessary expense for the parties and burdens for the court”).

• • • • [W]here . . . the plaintiffs’ claims can be readily resolved on summary judgment, where the defendant seeks an earl y disposition of those claims, and where the plaintif fs are not prejudiced thereby, a district court does not abuse its discretion by resolving the merits before considering the ques tion of class certification.
Curtin , 275 F.3d at 93.

These cases demonstrate that the timing provision f or class certification under Rule 23 is not absolute and trial courts are authorized to assess whether to rule on a motion for summary judgment before deciding the issue of c ertification. Although Rule 23 favors early determination of the class certification issu e, courts frequently elect to first decide a motion for summary judgment where warranted by cons iderations of fairness and judicial economy. While “[i]t is true that Rule 23(c)(1) o f the civil rules requires certification as soon as practicable, which will usually be before the case is ripe for summary judgment[,] . . . ‘usually’ is not ‘always,’ and ‘practicable’ allows for wiggle room.” Cowen v. Bank United of Texas, FSB , 70 F.3d 937, 941 (7th Cir. 1995) (internal citati ons omitted).

23In short, an overwhelming number of courts allow trial courts the discretion

to defer class certification pending the court’s ru ling on a dispositive motion. See, e.g., U.S. v. Nat’l Ass’n of Securities Dealers, Inc. , 422 U.S. 694, 700 n.5 (1975) (observing that “[t] he District Court [for the District of Columbia] deferred determination of whether [other separately filed actions] could be maintained as cl ass actions under Rule 23 and additionally postponed discovery and other activity pending disp osition of the motion to dismiss in this case.”); White v. Coca-Cola Co., 542 F.3d 848, 854 (11 thCir. 2008) (“Because the district court was correct to grant summary judgment in favo r of Coca-Cola, the district court did not abuse its discretion in denying the motions . . . f or discovery and class certification. The resolution of the merits of this controversy obviat es any issue about these procedures.”); Thompson v. Cty. of Medina, Oh., 29 F.3d 238, 241(6 thCir. 1994) (finding where “neither plaintiffs nor the members of the class were prejud iced by the order of the court’s rulings, the district court acted well within its discretion in concluding that it should decide the motion for summary judgment first.”); Marx v. Centran Corp. , 747 F.2d 1536, 1552 (6 thCir. 1984) (“It has never been doubted that a complaint asserting a class action could be dismissed on the merits before determining whether the suit could be maintained as a class action.”); Hartley v. Suburban Radiologic Consultants, Ltd. , 295 F.R.D. 357, 368 (D. Minn. 2013) (“To require notice to be sent to all potenti al plaintiffs in a class action when the underlying claim is without merit is to promote ine fficiency for its own sake.”) (citing Marx v. Centran Corp. , 747 F.2d 1536, 1552 (6th Cir.1984)); Hager v. Vertrue, Inc. , No. 09-

2411245-GAO, 2011 WL 4501046, at *1 (D. Mass. Sept. 8 , 2011) (noting that at initial

scheduling conference court had determined that “di scovery should be phased, with the first phase focused on the plaintiffs[’] individual claim s, rather than issues related to any putative class of plaintiffs” where defendant represented it would be able to defeat plaintiffs’ claims on motion for summary judgment after completion of first phase of discovery); Hill v. Chase Bank, NA , No. 2:07-CV-82-AS, 2007 WL 4224073, at *5 (N.D. I nd. Nov. 26, 2007) (finding that granting defendant’s motion to stay class base d discovery until court rules on defendant’s motion to dismiss “will encourage the m ost efficient use of the parties’ time and effort[.]”); Talley v. NCO Financial Systems, Inc. , No. 2:06-CV-48-PPS-PRC, 2006 WL 2927596, at *2 (N.D. Ind. Oct. 12, 2006) (addressin g defendant’s motion to stay issue of class certification until court ruled on defendant’ s anticipated motion for summary judgment and granting stay on basis that “it is in the inter ests of judicial economy and efficiency for the Court to rule on the motion for summary judgmen t prior to the motion for class certification in order to determine whether the cla im of the named Plaintiff lacks merit and thus whether the motion for class certification is moot.”); Mallo v. Public Health Trust, 88 F.Supp.2d 1376 (S.D. Fla. 2000) (granting defendant ’s motion to stay discovery and class certification pending disposition of defendant’s mo tion to dismiss amended class action complaint); Mitchell v. Indus. Credit Corp., 898 F.Supp. 1518, 1521, 1537 (N.D. Ala. 1995) (noting that it had entered order that “first phase of this case would focus on the claims of the named plaintiffs and that discovery regarding p utative class members and class status

25would be allowed, if appropriate, at a later time[; ]” that it had expressed concern at outset

of case regarding “the extensive discovery, time an d expense that would likely be involved on the class certification issue;” and finding it “ reasonable to rule on the motions for summary judgment without deciding on class certific ation”); Lawson v. Fleet Bank of Maine , 807 F.Supp. 136, 138 n.1 (D. Me. 1992) (“[T]he Court believes that its decision to defer action on the class certification motion and to sta y discovery until after resolution of the dispositive motions was the more prudent use of jud icial resources.”); Nee v. State Indus.,
Inc. , 3 N.E.3d 1290, 1296 n.4 (Ohio Ct. App. 2013) (obs erving that plaintiff’s claims were brought on behalf of himself and putative class andthat trial court stayed class discovery pending its ruling on summary judgment on plaintiff ’s individual claims); Baptist Hosp. of Miami, Inc. v. DeMario , 683 So.2d 641, 643 (Fla. Dist. Ct. App. 1996) (fi nd that “DeMario’s counsel [may not] utilize discovery as a device to solicit another class representative or potential class members for legal representation inthis cause” and ordering trial court to “stay the discovery in this cause pending its determination of DeMario’s standing to serve as the class representative”).

The breadth of authority cited above, as well as ou r own jurisprudence, establishes that a trial court may defer ruling on class certification until it first decides a dispositive motion directed to the named plaintiff’ s claim, and that the decision as to how best to proceed is dependent upon the facts and cir cumstances of a given case. Accordingly,

26we now expressly hold that where the interests of j udicial efficiency and economy warrant,

a circuit court may defer ruling on class certifica tion under Rule 23(c)(1) of West Virginia Rules of Civil Procedure until a motion for summary judgment directed to the purported class representative’s claim is decided.

While limited discovery directed to a purported cla ss representative may be necessary for summary judgment purposes, it would b e counterintuitive to allow class discovery to proceed where a court has elected to d efer ruling on class certification until it first decides a motion for summary judgment. See Conley v. Stollings , 223 W.Va. 762, 679 S.E.2d 594 (2009) (noting that trial court stayed f urther discovery pending its ruling on summary judgment motions that had been filed); Arnold Agency v. West Virginia Lottery Com’n, 206 W.Va. 583, 526 S.E.2d 814 (1999) (observing th at trial court stayed further discovery pending its ruling on dispositive motion) . Indeed, as a general proposition, allowing class discovery to proceed once a court ha s elected to first address a dispositive motion would be illogical and contrary to the very purpose for deferring class certification in the first instance. Accordingly, we further hol d that when a circuit court elects to defer ruling on the issue of class certification pending its decision on a motion for summary judgment, class discovery should be stayed until su ch time as the circuit court decides the motion, unless the non-moving party has demonstrate d that significant prejudice will result from a discovery stay. Whether a party has demonstrated significant prejudice will

27necessarily require the circuit court to consider the procedural posture of the case and

fairness to the parties in conjunction with the obj ective of advancing the goal of a “just, speedy, and inexpensive determination of every acti on.” See W.Va. R. Civ. P. 1.

We do not see anything in the appendix record demon strating that the respondent will be prejudiced by a stay of class di scovery. Certainly, a stay will not deny him the opportunity to brief and argue the potentia lly dispositive threshold issue of statutory construction. Further, we agree with the petitione r that staying class discovery “will allow for an orderly progression of the case, and will no t prejudice any parties or unnecessarily delay this action.”

Under these particular circumstances, we find the c ircuit court substantially abused its discretion in refusing to stay class dis covery pending a ruling on the threshold legal issue of statutory construction that bears onthe viability of the respondent’s individual claim. “[T]he essence of the dispute [is] [when], as a matter of law, [the respondent] was discharged within the meaning of the Wage Payment C ollection Act[.]” Ford v. GMS Mine Repair and Maint. , Inc. , No. 15-0225, 2016 WL 1417795 at*1 (W.Va. April 8, 2 016) (memorandum decision). 20 Critically, “[a] class action does not allow the class representative

20 In Ford , the plaintiff brought a wage claim, alleging his employer involuntarily terminated his employment and failed to pay his fin al wages within the time frame under the Act. The employer alleged that the plaintiff’s actions constituted a voluntary termination of (continued...) 28to avoid being confronted with the weaknesses in [h is] own case.” Perrine , 225 W.Va. at

592-93, 694 S.E.2d at 925-26 (Ketchum, J., dissenti ng, in part, and concurring, in part). Depending upon the circuit court’s decision on the petitioner’s motion for summary judgment, the respondent’s claim will either fail, as a matter of law, and he thus will not be permitted to serve as class representative under Ru le 23, or his claim will proceed, at which time issues attendant to class discovery and class certification may then be addressed. 21 To that end, we encourage the parties and the circuit court to move forward with reasonable alacrity.

IV. Conclusion

For the foregoing reasons, we find the petitioner t o be entitled to relief in prohibition. Accordingly, the circuit court’s Marc h 3, 2016, order denying the petitioner’s motion to stay class discovery is vacated. This ac tion is remanded for the entry of an order staying class discovery until such time as the circ uit court rules upon the petitioner’s motion for summary judgment and for additional proceedings consistent with this opinion. Writ Granted and Remanded with Instructions.

20 (...continued) his employment. On cross-motions for summary judgm ent, the circuit court ruled in favor of the employer, finding the plaintiff had voluntarily quit or resigned his employment, rather than having been discharged. Ford , at *1. We affirmed the ruling on appeal without n eeding to reach the issue of what constitutes a discharge under the Act.

21 We take no position on the merits of the parties’ r espective positions in this regard. 29