Ballard v. Navient Corporation et al

OCR transcription for search; preserved printed pages are authoritative

AUTHENTIC

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 1 of 40

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

JILL BALLARD, REBECCA : No. 3:18-CV-121
VARNO, and MARK POKORNI, :

on behalf of themselves and : (Saporito, J.)
the class members described

herein, : (Caraballo, M.J.)
Plaintiffs

Vv.

NAVIENT CORPORATION;
NAVIENT SOLUTIONS, INC.;
and NAVIENT SOLUTIONS,
LLC,

Defendants

REPORT AND RECOMMENDATION

I. Introduction

Plaintiffs Jill Ballard, Rebecca Varno, and Mark Pokorni
(collectively “the Plaintiffs”) commenced this putative class action
against several federal student loan servicing entities on January 16,
2018. Doc. 1. On December 19, 2024, the Court granted leave to file
the live third amended complaint, Doc. 118-3, and all defendants have
answered. Docs. 136; 183-84. The parties are in the midst of briefing

the Plaintiffs’ motion for class certification. Docs. 196; 208.

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 2 of 40

On June 20, 2025, Defendants Navient Corporation and Navient
Solutions, LLC, f/k/a Navient Solutions, Inc. (collectively “Navient”),
filed a motion for partial judgment on the pleadings (“the Motion’).

Doc. 158. In the Motion, Navient asserts that the Court should grant
judgment in its favor on Counts I, II, IV, V, and VI of the third amended
complaint, and dismiss or strike related class allegations. The Motion
is fully briefed, and this case was referred to the undersigned to issue
the instant Report and Recommendation (“R&R”). For the reasons set
forth below, the undersigned recommends that the Court deny the
Motion.

Il. Background

After eight years of litigation, the parties and the Court are
familiar with this action’s factual and procedural histories, much of
which are detailed in prior R&Rs issued by the Honorable Martin C.
Carlson. Docs. 56 at 2-8; 88 at 3-10. The undersigned therefore only
recites the background germane to this R&R.

In this putative class action, the Plaintiffs are student loan
borrowers who partook in income-driven repayment (“IDR”) programs,

and now seek recovery for Navient’s allegedly wrongful business

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 3 of 40

practices in servicing their federal student loans. See generally

Doc. 118-3. The Plaintiffs filed their first amended complaint on May
25, 2018. Doc. 29. The pleading instrument presented seven causes of
action on behalf of the Plaintiffs and the putative classes that they seek
to represent. Jd. The claims included: two counts for breach of
contract, one based on the alleged breach of Navient’s loan servicing
contract with the Department of Education, and another for supposed
violations of the Plaintiffs’ promissory notes with the Department of
Education (with an alternative cause of action for tortious interference
with those notes); and five counts alleging violations of California,
Pennsylvania, Illinois, and New York consumer protection statutes. Id.
at 40-57.

On July 12, 2018, Navient moved to dismiss the amended
instrument and to strike class allegations. Doc. 39. Navient first
asserted that the Court should strike the class allegations, on the basis
that Plaintiffs could not establish commonality, predominance, and
superiority under Federal Rule of Civil Procedure 23, because “[t]he
need to evaluate each of [the borrower's] claims individually creates an

insurmountable hurdle to class certification.” Doc. 40 at 22. Navient

Case 3:18-cv-00121-JFS-PJC Dacument 218 Filed 01/23/26 Page 4 of 40

also averred that Plaintiffs could not certify a class under Rule 23(b)(2),
because they sought money damages, not just the injunctive relief
permitted under the rule. Jd. at 22-23. And Navient further contended
that the first amended complaint failed to advance any cognizable
claims for relief under Federal Rules of Civil Procedure 12(b)(6) and 9(b)
for a myriad of reasons. Id. at 23-34.

_ Following briefing and oral argument, Judge Carlson issued an
R&R on March 81, 2021. Doc. 56. Judge Carlson first concluded that
Navient’s motion to strike class allegations, prior to conducting class
discovery, should be denied as premature, as “lt/he very nature of th[e]
fact-bound inquiry” for class certification under Rule 23(a) did not
warrant resolution of the class allegations on the pleadings alone. Id.
at 9-14. As noted by Judge Carlson in reviewing those pleadings, “if
the evidence supports what the plaintiffs have alleged, then class
certification may well be appropriate here.” Id. at 14. Thus, he
reasoned, “this is not one of those rare cases where class certification
could be denied through the expedient of striking class action
averments at the outset of the litigation as legally insufficient.” Id. at

13.

Case 3:18-cv-00121-JFS-PJC Document 218 : Filed 01/23/26 Page 5 of 40

Judge Carlson also recommended that Navient’s dismissal motion
be granted for the tortious interference with contract alternative cause
of action, but denied for the breach of contract claims. Id. at 19-25.
Specific to the breach of contract claims, Judge Carlson rejected
Navient’s contention that the plaintiff student loan borrowers were not
third-party beneficiaries of the loan servicing agreement between
Navient and the Department of Education. Id. at 19-23. Judge
Carlson also reasoned that the Plaintiffs advanced plausible breach of
contract claims against Navient premised on the promissory notes
between the plaintiff student loan borrowers and the Department of
Education, because the Department of Education allegedly assigned
certain loan servicing obligations under the promissory notes to
Navient. Id. at 24. Navient’s final ground for dismissal of the breach of
contract claims, premised on the Plaintiffs’ failure to name the
Department of Education as a defendant in this action, proved
unsuccessful, as Judge Carlson declined to deem the Department of
Education a necessary and indispensable party proscribed by Rule 19.

Id. at 25-80.

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 6 of 40

Finally, Judge Carlson concluded that the five counts premised on
state consumer protection statutes survived the dismissal motion. Id.
at 80-31. Deeming dismissal on the pleadings alone to be premature,
Judge Carlson declined to rule that student loan servicing disputes
were not cognizable under the California, Pennsylvania, Illinois, and
New York consumer protection statutes, and reviewed several
authorities endorsing such claims. Jd. On April 28, 2021, after
receiving no objections from the parties, the Court adopted Judge
Carlson’s R&R in its entirety. Doc. 57. The parties resumed litigation.

On September 21, 2022, the Plaintiffs filed a contested motion to
compel class discovery and, if necessary, to file a second amended
complaint bearing modified class definitions with the same seven causes
of action asserted in the first amended complaint. Doc. 80. On June 29,
2023, the Court adopted an R&R issued by Judge Carlson (Doc. 88) in
its entirety, granted the motion to compel, and entered the second
amended complaint (Doc. 80-1) as the operative pleading. Doc. 89.

On March 28, 2024, after several months of class discovery, the
Plaintiffs moved for leave to file a third amended complaint. Doc. 118.

The third amended complaint modified the class allegations, but

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 7 of 40

otherwise advanced the same seven claims and substantive averments
as its predecessor.! See Doc. 118-2. Of the four putative classes
advanced in the third amended complaint, two are relevant for purposes

of the instant R&R:

(1) The Forbearance Without Written Consent Class: Each
member alleges that Navient failed to renew his or her IDR
plan and enrolled the borrower in a discretionary forbearance,
thus resulting in an increased principal balance and delayed
eligibility for loan forgiveness. Doc. 118-3 at 39-40. The
applicable subclasses include the New York and Illinois
subclasses. Id. at 40.

(2) The Improper Delay Class: Each member alleges that
he or she submitted a completed application to enroll in an
IDR plan, and that Navient failed to process the application
“until 45 days or more after it was received,” instead of 10 to
15 days, as allegedly required. Jd. at 40. The applicable
subclass is the Illinois subclass. Jd.

Following contested briefing, the Court entered the live third
amended complaint on December 19, 2024. Doc. 186. Navient
answered the third amended complaint, Docs. 140—42, and following
litigation seeking to strike those pleadings, filed amended answers.

Docs. 183-84.

1 The undersigned notes that, even though the Court granted Navient’s motion to
dismiss the Plaintiffs’ tortious interference with contract claim, Docs. 56 at 19-25;
57 at 6-7, 9, the third amended complaint still contains the claim’s associated
language. Doc. 118-3 at 46-48. In any event, the issue has no bearing on this R&R.

7

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 8 of 40

With the Plaintiffs’ pleading instrument having survived
numerous challenges and undergone several iterations, we now arrive
at Navient’s motion for partial judgment on the pleadings. On June 20,
2025, after answering the third amended complaint and while in the
| midst of class discovery, Navient filed the instant Motion. Doc. 158.
There, Navient requests that the Court grant judgment on Counts I
(breach of servicing contracts), II (breach of promissory notes), IV
(Pennsylvania Unfair Trade Practices and Consumer Protection Law),
V (New York General Business Law), and VI (Illinois Consumer Fraud
and Deceptive Business Practices Act), and dismiss or strike various
class allegations. See generally Doc. 163. The Plaintiffs filed an
opposition on August 18, 2025, Doc. 169, and Navient replied on
September 16, 2025, Doc. 178, leaving the Motion ripe for review.

Ill. Discussion

A. Rule 12 Legal Standards

The Defendants seek partial judgment on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c). A party may seek judgment on
the pleadings “[a]fter the pleadings are closed—but early enough not to

delay trial....” Fed. R. Civ. P. 12(c). “A motion for judgment on the

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 9 of 40

pleadings based on the defense that the plaintiff has failed to state a
claim is analyzed under the same standards that apply to a Rule
12(b)(6) motion.” Zimmerman v. Corbett, 873 F.8d 414, 417 (8d Cir.
2017) (quotation omitted) (quoting Revell v. Port Auth. of N.Y., N.J., 598
F.3d 128, 184 (8d Cir. 2010)).

Judgement under Rule 12(c) is granted only if “the movant clearly
establishes that no material issue of fact remains to be resolved and
that he is entitled to judgment as a matter of law.” Rosenau v. Unifund
Corp., 589 F.3d 218, 221 (8d Cir. 2008) (emphasis added) (quoting
Jablonski v. Ran Am. World Airways, Inc., 863 F.2d 289, 290-91 (3d
Cir. 1988)).

Regarding Rule 12(b)(6), a court may dismiss a complaint for its
“failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Connelly v. Lane Constr. Corp., 809 F.3d 780,
786 (8d Cir. 2016) (quotation omitted) (citing Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)); see also Fed. R. Civ. P. 8(a)(2) (“A pleading that states

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 10 of 40

a claim for relief must contain a short and plain statement of the claim
showing that the pleader is entitled to relief.”).

Plausibility in this context means neither possibility nor
probability. United States ex rel. Bookwalter v. UPMC, 946 F.3d 162,
177 (8d Cir. 2019). Instead, “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” Connelly, 809 F.3d at 786 (quotation omitted) (first citing
Iqbal, 556 U.S. at 678; and then citing Sheridan v. NGK Metals Corp.,
609 F.3d 239, 262 n.27 (8d Cir. 2010)).

The Court of Appeals employs a three-step inquiry when
determining a complaint’s sufficiency under Rule 12(b)(6). Santiago v.
Warminster Twp., 629 F.3d 121, 180 (8d Cir. 2010); see, e.g., Lutz v.
Portfolio Recovery Assocs., LLC, 49 F.4th 328, 328 (8d Cir. 2022);
Connelly, 809 F.3d at 787. First, the reviewing court “tak[es] note of the
elements [the] plaintiff must plead to state a claim.” Connelly, 809 F.3d
at 787 (second alteration in original) (quotation omitted) (quoting Iqbal,
556 U.S. at 675). The second phase is to “identify allegations that,

‘because they are no more than conclusions, are not entitled to the

10

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 11 of 40

assumption of truth.” Jd. (first quoting Iqbal, 556 U.S. at 679; and then
citing Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (8d Cir. 2011)).
Finally, “[w]hen there are well-pleaded factual allegations, [the]
court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Jd. (alterations in
original) (quotation omitted) (quoting Iqbal, 556 U.S. at 679). This last
step is done “in the light most favorable to [the plaintiff].” Kedra v.
Schroeter, 876 F.3d 424, 434 (8d Cir. 2017) (alteration in original)
(quotation omitted) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d
224, 228, 230 (8d Cir. 2008)). “If, after completing this process, the
complaint alleges ‘enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence of the necessary elements of a claim,
then it plausibly pleads a claim.” Lutz, 49 F.4th at 328 (alteration in
original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2009)).
If “a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” [d. (quotation omitted) (quoting
Bell Atl., 550 U.S. at 556). That is, “[clonclusory allegations of liability

are insufficient.” Garrett v. Wexford Health, 938 F.3d 69, 92 (8d Cir.

11

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 12 of 40

2019) (citing Iqbal, 556 U.S. at 678). “Evaluating a motion to dismiss is
‘a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Bookwalter, 946 F.3d at 177
(quoting Iqbal, 556 U.S. at 679).

B. Pokorni and the Improper Delay Class Standing

Though the standing issue is the last to be raised in the Motion,
Doc. 163 at 17-20, the undersigned addresses it first in consideration of
the judicial obligation to confirm federal jurisdiction at all times. See
Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76-77 (8d Cir. 2008).
Here, Navient requests that the Court dismiss plaintiff Pokorni and the
Improper Delay Class on the premise that their claimed injuries are too
speculative to establish Article III standing. Doc. 163 at 13-16.

As set forth in the third amended complaint, Pokorni and his
associated putative class aver that Navient’s delay in processing their
applications for an IDR plan resulted in two related injuries. Doc. 118-3
at 36-40, 56-58. Namely, and according to Pokorni, that delay
thwarted his ability to make an early qualifying payment towards loan
forgiveness, and the capitalized interest that accrued during the period

of delay enlarged the principal balance of the loan. Id. Navient deems

12

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 13 of 40

the claimed injury from allegedly delayed loan forgiveness speculative,
as Pokorni alleges neither “that he has made all such required
payments to reach loan forgiveness,” nor “that any delay has caused a
present financial or legal harm.” Doc. 163 at 19.

Pokorni and the putative Improper Delay Class do, however,
allege a tangible financial injury arising from the capitalized interest
accrued during the period of delay. Moreover, and in viewing the
allegations of the complaint in the light most favorable to the Plaintiffs,
Navient has not met its burden to establish the absence of unresolved
material facts germane to the Court’s determination of whether the
alleged injury arising from Navient’s supposed delays in processing IDR
applications is merely speculative. Navient’s standing challenge should
thus be denied at this juncture of the litigation.

Article III of the Constitution confines federal jurisdiction to
certain “Cases” and “Controversies.” U.S. Const. art. IIT, § 2, cl. 1.
Therefore, “[f]ederal courts are courts of limited jurisdiction,” wielding
“only that power authorized by Constitution and statute.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations

omitted). In other words, “subject matter jurisdiction is non-waivable.”

13

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 14 of 40

Nesbit, 347 F.3d at 77 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 278 (1977)). A party therefore may move to
dismiss for lack of subject matter jurisdiction at any time. See Fed. R.
Civ. P. 12(b)(1), 12(h)(8).

If, as here, a party challenges the Court’s “subject matter
jurisdiction on a Rule 12(c) motion, the court will treat a ‘motion for
judgment on the pleadings based upon a lack of subject matter
jurisdiction ... as a Rule 12(b)(1) motion to dismiss the complaint.”
Martin v. Piserchia, 2024 WL 3812071, at *8 (D.N.J. 2024) (quoting
Ricciardi Fam. LCC v. U.S. Postal Serv., 2011 WL 3022521, at *2
(D.N.J 2011)). And when addressing subject matter jurisdiction under
Rule 12(b)(1), the Court “must take care not to reach the merits of a
case....” Davis v. Wells Fargo, 824 F.3d 338, 348 (8d Cir. 2016)
(quoting CNA v. United States, 535 F.3d 132, 144 (8d Cir. 2008)).

Jurisdictional issues routinely are raised in the early stages of
litigation, as viable challenges may avert the unnecessary expenditure

of time and resources on litigation and discovery by the parties and the

Court. “Tardy jurisdictional objections can therefore result in a waste

14

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 15 of 40

of adjudicatory resources and can disturbingly disarm litigants.”
Sebelius v. Auburn Reg'l Med. Cir., 568 U.S. 145, 153 (2018).

Here, Navient advances a standing attack against allegations in
the third amended complaint that are identical to those averred in the
first amended complaint. Compare Doc. 118-3 at 7 86—94, 165-68,
with Doc. 29 at {§ 78-86, 157-68. Despite having ample opportunity to
challenge standing, including in their motion to dismiss the first
amended complaint,? or when contesting the entry of plaintiffs’ second
and third amended complaints, Navient offers no rationale for waiting
five years to advance this jurisdictional dispute.

To be sure, subject matter jurisdiction challenges may be raised at
any time, including in a Rule 12(c) motion following the defendant’s
responsive pleading. See, e.g., Martin, 2024 WL 3812071, at *8; M.N. v.
Sparta Twp. Bd. of Educ., 2022 WL 16743968, at *2—3 (D.N.J. 2022).
But the procedural timing is important, as it factors into the Court’s

determination of the appropriate standard of review.

2 Though the Plaintiffs claim that Navient “raised similar arguments in support of
their Rule (12)(b)(6) motion,” Doc. 169 at 27 (citing Doc. 40 at 34), the standing
challenge advanced now was not before the Court. Rather, Navient contested
whether it’s allegedly deceptive statements to Pokorni were related to the claimed
application processing delays, and thus gave rise to injury. Doc. 40 at 34.

15

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 16 of 40

There are two types of jurisdictional challenges: facial and factual.
Const. Party of Pa. v. Aichele, 757 F.3d 347, 357-58 (8d Cir. 2014) (first
citing In re Schering Plough Corp. Intron/Temodar Consumer Class
Action, 678 F.3d 235, 243 (8d Cir. 2012); and then citing Mortensen v.
First Fed. Sav. & Loan Ass‘n, 549 F.2d 884, 891 (8d Cir. 1977)). The
Court must first determine whether a Rule 12(b)(1) motion “presents a
‘facial’ attack or a ‘factual’ attack on the claim at issue, because that
distinction determines how the pleading must be reviewed.” Id.

A facial attack “contests the sufficiency of the pleadings.” Jd. at
358 (quotation omitted) (quoting Schering, 678 F.3d at 248). More
specifically, “[a] facial attack, as the adjective indicates, ... considers a
claim on its face and asserts that it is insufficient to invoke the subject
matter jurisdiction of the court ... because some . . . jurisdictional
defect is present.” Jd. Thus, a facial attack properly “occur[s| before the
moving party has filed an answer or otherwise contested the factual
allegations of the complaint.” Jd. (citing Mortensen, 549 F.2d at 889—
92).

“In reviewing a facial attack, ‘the court must only consider the

allegations of the complaint and documents referenced therein and

16

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 17 of 40

attached thereto, in the light most favorable to the plaintiff.’ ... Thus,
a facial attack calls for a district court to apply the same standard of
review it would use in considering a motion to dismiss under Rule
12(b)(6), t.e., construing the alleged facts in favor of the nonmoving
party.” Id. (quoting Schering, 678 F.3d at 243, and then quoting Gould
Elecs. Inc. v. United States, 220 F.3d 169, 176 (8d Cir. 2000)).

In contrast, a factual challenge stresses “the actual failure” to
comply “with the jurisdictional prerequisites.” Id. (quotation omitted)
(quoting CNA, 535 F.3d at 139). More specifically, such an attack
asserts “that there is no subject matter jurisdiction because the facts of
the case... do not support the asserted jurisdiction.” Jd. A factual
attack therefore necessarily involves the Court’s consideration of
“evidence outside the pleadings.” Id. (quotation omitted) (first quoting
Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (8d Cir. 2000); and
then citing Gotha v. United States, 115 F.3d 176, 178-79 (8d Cir. 1997)).
And unlike the generous standard of review afforded a facial attack, in
which “presumptive truthfulness attaches to [a] plaintiffs allegations,”
if a factual challenge is presented, “the plaintiff will have the burden of

proof that jurisdiction does in fact exist.” Mortensen, 549 F.2d at 891.

17

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 18 of 40

Here, Navient advances a facial attack, despite challenging
standing in a Rule 12(c) motion after filing their answers. Navient’s
contentions that Pokorni and the Improper Delay Class lack standing
are all premised solely on the sufficiency of the allegations in the third
amended complaint, not on any extraneous evidence offered into the
record. See Doc. 163 at 18-19. Navient’s averments thus “are properly
understood as facial attacks because they contend that the [Third]
Amended Complaint|] lack[s] sufficient factual allegations to establish
standing.” Schering, 678 F.3d at 243; see also In re Horizon Healthcare
Servs. Inc. Data Breach Litig., 846 F.3d 625, 632 (8d Cir. 2017)
(“Because Horizon did not challenge the validity of any of the Plaintiffs’
factual claims as part of its motion, it brought only a facial challenge.”).
Accordingly, the Plaintiffs do not bear the burden of establishing
standing for purposes of the Motion, which the Court adjudicates by
viewing the challenged allegations in the third amended complaint with
a presumption of truthfulness. See Mortensen, 549 F.2d at 891.

That analysis, in turn, is informed by the principles of Article III

standing, which evaluates: (1) an injury in fact (i.e., a “concrete and

particularized” invasion of a “legally protected interest”); (2) causation

18

Case 3:18-cv-00121-JFS-PJC Document 218 _ Filed 01/23/26 Page 19 of 40

(i.e., a “fairly ... traceable” connection between the alleged injury in
fact and the alleged conduct of the defendant); and (8) redressability
(i.e., it is “likely” and not “merely speculative” that the plaintiffs injury
will be remedied by the relief plaintiff seeks in bringing suit). Sprint
Commce'ns Co., L.P. v. APCC Serus., Inc., 554 U.S. 269, 278 (2008)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
Regarding the first requirement, a qualifying injury is “concrete
and particularized,” as well as “actual or imminent.” Gilles v. Davis,
427 F.3d 197, 208 (2005) (quotations omitted) (quoting Lujan, 504 U.S.
at 560-61). Imminence, the disputed issue here, means neither
“conjectural” nor “hypothetical.” City of L.A. v. Lyons, 461 U.S. 95, 102
(1988) (citations and quotations omitted). Instead, an imminent injury
means that the threatened harm is “certainly impending,” Whitmore v.
Arkansas, 495 U.S. 149, 158 (1990) (citations and quotations omitted),
and has “a high degree of immediacy, so as to reduce the possibility of
deciding a case in which no injury would have occurred at all.” Lujan,
504 U.S. at 564 n.2 (citations omitted). Put simply, the “threatened

2, 666

injury must be certainly impending’; “possible future injur[ies]’ are not

19

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 20 of 40

sufficient.” Clapper v. Amnesty Intl USA, 568 U.S. 398, 409 (2013)
(citations omitted) (emphases in original).

Further, in a class action, the “named plaintiffs who represent a
class ‘must allege and show that they personally have been injured, not
that injury has been suffered by other, unidentified members of the
class to which they belong and which they purport to represent.”

Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 40 n.20 (1976) (quoting

Warth v. Seldin, 422 U.S. 490, 502 (1975)). A corollary is that putative
class actions must be dismissed if standing is absent. See, e.g., Reilly v.
Ceridian Corp., 664 F.3d 38, 42-46 (8d Cir. 2011). .

With that framework in mind, the allegations in the third
amended complaint, taken as true, readily aver injuries in fact
sufficient to establish Article ITI standing on the pleadings. One of the
two categories of claimed injuries resulting from Navient’s alleged delay
in processing IDR applications lies in the addition of capitalized interest
accrued during the period of delay to the principal balance of the loans;
a practice that allegedly put borrowers “deeper and deeper into debt.”

Doc. 118-3 at § 6. Specific to Pokorni, the Plaintiffs aver that,

“[blecause all interest that accrues during periods of forbearance is

20

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 21 of 40

capitalized, a larger sum was added to Mr. Pokorni’s principal loan
balance than would have been added if the IDR application had been
processed within the period established by the Department of
Education’s guidelines.” Jd. at { 92. That theory of loss is echoed in the
corresponding class allegations. Jd. at J 95, 164.

Although the potential magnitude of those claimed losses are not
evident, the allegations, taken as true, readily particularize a tangible
financial loss for purposes of the Court’s standing analysis. Further, as
the Plaintiffs correctly note, Navient’s standing challenge does not
address “the issue of increased interest,” and is premised solely on their
allegedly delayed loan forgiveness. Doe. 169 at 27. Navient, in turn,
acknowledges that it “is not challenging standing as it relates to
additional accrued interest for purposes of this Motion.” Doc. 178 at 10
n.b.

The Court is thus left with a puzzling scenario, where Navient
requests dismissal of Pokorni, his associated putative class, and their
related claims on standing grounds, despite effectively conceding that
their interest-based claim of injury in fact sufficiently pleads Article ITI

standing. Navient offers no explanation for how, as a procedural and

21

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 22 of 40

practical matter, the Court can grant judgment under Rule 12(c)(1)
against those parties and claims, simply because one of their two
claimed injuries is allegedly speculative. A plaintiff either has
standing, or it does not.

Navient offers no authority for the notion that, once standing for a
party to advance a claim is confirmed, the Court should analyze each
individual allegation in support of the claim to determine whether it
presents speculation. That approach bears the hallmarks of a motion to
strike class allegations, advanced under the guise of a Rule 12(c)
motion. As the Court previously noted, “striking these class allegations
without the benefit of class discovery would be premature and
improper.” Doc. 56 at 14.

Moreover, the Court cannot determine, at the pleading stage,
whether Pokorni’s allegedly delayed eligibility for loan forgiveness
presents only speculative injury insufficient for Article III standing.
Navient, relying on In re Fedloan Student Loan Serv. Litig., 2025 WL
539681 (E.D. Pa. 2025), may well ultimately advance a meritorious
argument that “any alleged harm concerning a delay in reaching loan

forgiveness was speculative and contingent on future events that may

22

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 23 of 40

never occur.” Doc. 163 at 19 (citation omitted); Fedloan, 2025 WL
539681, at *8-10. That determination, however, cannot be made here
absent further factual development.

The Plaintiffs aver that, “[b]y enrolling Mr. Pokorni in the Income-
Based Repayment plan a month and a half after receiving his IDR plan
application, Navient ... prevented him from making a qualifying
payment toward loan forgiveness in the month of March of 2016, which
thereby extended the duration of his loans. In other words, because
Navient delayed the processing of Mr. Pokorni’s IDR plan application,
the date on which Mr. Pokorni will become eligible for loan forgiveness
has been delayed by a month.” Doc. 118-3 at § 91. He likewise claims
that he “suffered ascertainable loss and actual damages as a direct and
proximate result of Defendants’ deceptive and unfair practices,
including, but not limited to... financial harm associated with delayed
progress towards loan forgiveness, due to individuals not making
qualifying payments that would count toward same.” Id. at 164.

Taking those allegations as true and viewing them in the light
most favorable to the Plaintiffs, see Connelly, 809 F.3d at 786; Kedra,

876 F.3d at 484, the delays in processing IDR applications and

23

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 24 of 40

obtaining loan forgiveness may have already happened or even be
ongoing, thus presenting a realistic financial injury, instead of just a
speculative possibility. Absent further factual development, the Court
cannot fully evaluate Navient’s challenge. Indeed, a review of the
Plaintiffs’ contrary authority simply confirms the fact-based nature of
this particular standing challenge. See Nigro v. Pa. Higher Educ.
Assistance Agency, 2020 WL 5369980, at *6—7 (M.D. Pa. 2020) (denying
motion to dismiss on premise that “resolution of .. . standing argument
requires the court to resolve [factual] question” concerning temporal
eligibility for student loan forgiveness, without prejudice to defendant
“re-raising the argument at a later stage of litigation.”).

Under Rule 12(c), Navient must clearly establish “that no material
issue of fact remains to be resolved,” Rosenau, 539 F.3d at 221; a
burden it has not met. Therefore, as the third amended complaint,
construed in the light most favorable to the Plaintiffs, sufficiently
pleads standing for Pokorni and the Improper Delay Class, the

undersigned recommends that the Motion be denied on this issue.

24

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 25 of 40

C. Discretionary Forbearance Allegations for Counts IV
and V

The undersigned recommends that the Court deny judgment on
the pleadings for Counts IV (Pennsylvania Unfair Trade Practices and
Consumer Protection Law) and V (New York General Business Law) of
the third amended complaint. As set forth below, Navient presents no
valid reason to disturb the Court’s prior ruling, on Navient’s motion to
dismiss, that both counts plead plausible claims for relief.

Navient introduces a dispute over regulatory construction in
challenging Counts IV and V in the third amended complaint. Doc. 1638
at 18-15. Specifically, Navient challenges Paragraph 50 of the third
amended complaint, which states:

50. The only time a discretionary forbearance may be applied

without the borrower’s written consent is after the borrower's

loans have gone into default status, but before the loans have

been transferred to collections. See 34 CFR § 682.211 (d)(1).

In this situation, a limited, 120-day forbearance may be based

on the borrower’s “oral affirmation.” Jd. at (d)(2)(1).

Doc. 118-3 at § 50. That challenge extends to the related averments
concerning Varno, and in Counts IV and V of the third amended
complaint, including:

77. In May of 2017, Ms. Varno called the Navient customer
service line to inquire as to the status of her IBR plan. A

25

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 26 of 40

Navient representative, speaking to Ms. Varno from
Defendants’ call center in Wilkes-Barre, Pennsylvania,
informed Ms. Varno that her renewal application had been
approved, but it would not be “applied to her account” for
several more months. Until such time, Ms. Varno’s monthly
payment amount would be increased to approximately $1,800
under the standard repayment plan. Because she could not
afford payments in that amount, Navient Corp., through its
duly appointed agent, NSL, placed Ms. Varno’s loans into
forbearance status until her IBR plan was renewed, even
though she never submitted a written request for the
forbearance. This action was taken by Navient Corp., through
its agent, NSL, at their offices in Wilkes-Barre, Pennsylvania.
All interest that accrued during this forbearance period was
capitalized, or added to Ms. Varno’s principal loan balance.

147. Defendants violated 738 Pa. Stats. § 201-1 et seq. by
falsely representing that the following actions had the
approval or sponsorship of the federal government: .. .
improperly placing Rebecca Varno’s loans into forbearance
status during Defendants’ processing delays.

157. In the course of Defendants’ business, they engaged in
the following deceptive acts and practices: ...c. applying a
forbearance to Plaintiffs account during the processing of her
IDR application, in violation of federal law, while
representing to Plaintiff that said action had the approval of
the federal government.

Id. at [§ 77, 147(e), 157(c).
Navient deems these allegations faulty because Title 34, Code of

Federal Regulations, Section 682.211(d)(1) merely proscribes “one

26

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 27 of 40

permissible use of forbearance.” Doc. 163 at 18. According to Navient,
discretionary forbearance, including on oral instead of written
affirmation, may also be granted pre-default. Jd. at 14-15. Indeed, the
relevant regulation provides that:
A guaranty agency may authorize a lender to grant
forbearance to permit a borrower or endorser to resume
honoring the agreement to repay the debt after default but
prior to claim payment. The forbearance agreement in this
situation must include a new agreement to repay the debt

signed by the borrower or endorser or a written or oral
affirmation of the borrower's or endorser’s obligation to repay

the debt.

34 C.F.R. § 682.211(d)(1) (emphasis added).

Further, Navient observes that other sources permit discretionary
forbearance on oral affirmation in other instances. Specifically,
Sections 682.211(b)(1) and 211(c) of the same regulation “also include
language that references the ability of a lender to grant the borrower a
verbal forbearance outside of being in default.” Doc. 168 at 13-14; see
also 34C.F.R. § 682.211(b)(1), (c). As such regulatory provisions
contradict the Plaintiffs’ allegations, Navient reasons, the Court should
dismiss Counts [V and V, and the Forbearance Without Written

Consent Class. Doc. 163 at 15.

27

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 28 of 40

The Plaintiffs, in turn, concede that Section 682.211(d)(1) is
“ambiguous,” but support their interpretation by relying on other
subsections, related regulations, and commentary from the rulemaking
process. See Doc. 169 at 10-18 (discussing 34 C.F.R. § 685.205 and 78
Fed. Reg. 65775). More importantly, the Plaintiffs note that their
allegations in support of Varno and Counts IV and V concerning when
forbearance premised on oral affirmation is permissible are but one part
of their broader claims that Navient’s practices are “unlawful for
multiple reasons.” Id. at 22-23 (emphasis omitted). The reasons
include:

1. A discretionary forbearance is permitted only when the

borrower is unable to make scheduled payments due to a

temporary hardship, but Varno’s IDR application established

her intent to remain on a 12-month payment schedule.

(Compl. J 81).

2. An administrative forbearance is the only type of

forbearance specifically designated for periods when an [DR

application is processed, but Navient used _ costly.

discretionary forbearances for this purpose. (Compl. {{ 80,

82).

3. <A discretionary forbearance may only be granted for the

“benefit of a borrower,” but Navient enrolled borrowers in

discretionary forbearances to increase profits for its debt
collection subsidiaries. (Compl. § 7).

28

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 29 of 40

4. Except after default, a discretionary forbearance should
be supported by documentation from the borrower, but
Varno’s forbearances were based on oral affirmation. (Compl.

{ 49).

Id. As noted by the Plaintiffs, Navient challenges only that fourth
premise, Doc. 169 at 23; an approach that does not warrant dismissal of
claims premised on additional allegations.

Moreover, the challenged allegations in the third amended
complaint concerning Varno, including the averments concerning the
placement of loans into forbearance during processing delays without
written affirmation approval, see Doc. 118-3 at |] 77, 147(e), 157(c),
mirrored their counterparts in the first amended complaint. See Doc.
29 at J 70, 1389(e), 149(c). Each of those allegations was, in turn,
incorporated by reference into Counts IV and V. Id. at {§ 185, 145. In
denying Navient’s motion to dismiss the first amended complaint, the
Court already ruled that those counts, which necessarily included the
allegations challenged here, advanced viable claims for relief. Docs. 56
at 30-81; 57 at 8-9.

In addition to the reasons set forth above, the undersigned
recommends that the Motion be denied for Navient’s failure to prove

that it is entitled to judgment on the pleadings on both legal and factual

29

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 30 of 40

grounds. Regarding the legal aspect, neither Navient nor the Plaintiffs
offer definitive or precedential authority clarifying the ambiguous
language and applicability of Section 682.211(d)(1). Docs. 163 at 9-11;
169 at 16-18. Consequently, the undersigned remains unconvinced
that a Rule 12(c) judgment for Navient is warranted, as it failed to meet
its burden of establish that it is “entitled to judgment as a matter of
law.” Rosenau, 539 F.3d at 221.

Compounding that uncertainty in the pleadings, Navient seeks to
introduce extraneous factual evidence that it deems relevant to
interpreting the challenged regulation. Namely, Navient offers the
Common Manual on Unified Student Loan Policy (“the Common
Manual”) in support of its regulatory interpretation of Section 682.211.
Doc. 163 at 2, 9-11. The Plaintiffs, in turn, dispute the authoritative
value of the Common Manual, claiming that it “was drafted by a
consortium of debt collection entities.” Doc. 169 at 21. The Court
cannot, however, entertain this factual dispute or consider the Common
Manual, as it is neither part of the pleadings nor a matter of public
record. See Wolfington v. Reconstructive Orthopaedic Assocs. IT PC, 935

F.3d 187, 197 (8d Cir. 2019) (stating that 12(b)(6) and 12(c)(1) motions

30

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 31 of 40

“may be decided based only on the ‘complaint, exhibits attached to the
complaint, matters of public record, as well as undisputedly authentic
documents if the complainant’s claims are based upon those
documents.” (quoting Mayer v. Belichick, 605 F.3d 228, 230 (8d Cir.
2010))); see also Fed. R. Evid. 803(8) (defining public records). This
potential factual dispute concerning the Common Manual’s applicability
to this action—one that cannot be determined in the Rule 12(c)
context—emphasizes that a “material issue of fact remains to be
resolved.” Rosenau, 589 F.3d at 221.

Thus, given both these regulatory and factual uncertainties, the
allegations of the third amended complaint, construed in a light most
favorable to Plaintiffs, cannot be dismissed at this stage of the
litigation. As Navient falls short of its legal and factual burdens under
Rule 12(c), the undersigned recommends that the Motion be denied for
Counts IV and V.

D. Delayed Application Processing Allegations for
Counts I, IT, IV, and VI

The undersigned recommends that the Court deny judgment on
the pleadings for Counts I (breach of servicing contracts), II (breach of

promissory notes), [IV (Pennsylvania Unfair Trade Practices and

31

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 32 of 40

Consumer Protection Law), and V (New York General Business Law), of
the third amended complaint. As set forth below, Navient raises factual
disputes that cannot be adjudicated on a Rule 12(c) motion.

Navient contends that the Plaintiffs err in asserting that Navient
was required to process borrowers’ IDR program applications within 10
to 15 days. Doc. 163 at 16. Specifically, Navient refutes the Plaintiffs’
reliance on the “Mitchell Memorandum,” a July 2016 missive issued by
the Department of Education, that supports the Plaintiffs’ contention.
Id.; Doc. 118-3 at J 48. Navient avers that the Mitchell Memorandum
is mere guidance for “inform|[ing] future rulemaking” that was not
codified in law or regulation, and that was rescinded in 2017. Doc. 163
at 16.

In response, the Plaintiffs note that the servicing contracts
between Navient and the Department of Education (included as an
exhibit to their pleading instrument) required Navient to service loans
in a manner consistent with policies and guidance. Doc. 169 at 24. The
Plaintiffs also highlight allegations in the third amended complaint,
both generally and using Pokorni as an example, averring that loan

servicers were subject to the 10- to 15-day application processing

32

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 33 of 40

deadline, irrespective of the Mitchell Memorandum. Id. at 24—25.
Indeed, Plaintiffs advance Pokorni’s allegation that “as early as April
2016—four months before Mitchell’s memorandum was issued—[the
Department of Education] directed loan services to process IDR
applications within 10-15 days.” Id. at 25 (citing Doc. 118-3 at § 48).
Navient refutes these allegations by claiming that “[a]ny limits on the
processing time for IDR applications would be found in a rule or
regulation.” Doc. 178 at 7.

In sum, the parties’ dueling positions are anchored in their
respective factual allegations, bereft of any cognizable issue that can be
decided purely as a matter of law. The Court thus is confronted with a
factual dispute concerning whether and when loan servicers, including
Navient, were required to process applications for income-driven
repayment programs within 10 to 15 days. Construing the allegations
of the third amended complaint in the light most favorable to the
Plaintiffs—particularly, that the processing deadline existed prior to
the Mitchell Memorandum—judgment on the pleadings is not

warranted. See Rosenau, 539 F.3d at 221.

33

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 34 of 40

Navient’s reliance on U.S. ex rel. Hlywiak v. Great Lakes Educ.
Loan, Servs., Inc., 2022 WL 787957 (D.N.J. 2022), where the court
dismissed claims premised on the Mitchell Memorandum, does not
change that analysis. Doc. 163 at 16-17. Navient is correct that the
Hlywiak court observed that the Mitchell Memorandum, along with a
presidential memorandum issued by former President Barack H.
Obama, “merely expressed a policy preference, not a binding legal
requirement.” Doc. 168 at 17; 2022 WL 787957, at *8-9. But unlike
here, where the Plaintiffs present factual averments above and beyond
the Mitchell Memorandum, the Hlywiak relator premised her claims
entirely on those unofficial memoranda. 2022 WL 787957, at *3—-5, 7-9.

Therefore, as Navient fails to establish that it is entitled to Rule
12(c)(1) judgments as to Counts J, IT, IV, V, and VI, the undersigned
recommends that the Motion be denied on those five claims.

E. Requests to Strike Class Allegations

As the Plaintiffs note, “Defendants have not filed a motion to
strike the class allegations.” Doc. 169 at 20. Though technically true,
many of Navient’s requests that the Court “dispose of’ the [Improper

Delay and Forbearance Without Written Consent Classes and their

34

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 35 of 40

related allegations, Doc. 163 at 18, 15, 17, 20, read as a motion to strike
appearing in the guise of a Rule 12(c) motion. To the extent that any of
Navient’s positions can be construed as a motion to strike class
allegations, the undersigned recommends that they be denied.

Navient contends that, as the underlying causes of action are
implausible as a matter of law, the associated class allegations are also
invalid. Doc. 163 at 18, 15, 17, 20. In response, the Plaintiffs present a
threefold argument: (1) “[t]he proper means of attacking a class
definition is... a motion to strike”; (2) such a motion is premature
under Third Circuit precedents; and (8) the class allegations “may
require further modifications, which is permitted by Rule 23.” Doc. 169
at 29-30.

Class allegations include “allegations about representation of
absent persons and that the action proceed accordingly.” Fed. R. Civ. P.
23(d)(1)(D). Defendants in putative class actions often rely on Rule
12(b)(6) and Rule 12(f) when seeking to strike class allegations before
the class certification stage.

Regarding Rule 12(b)(6), “[i]t would be error for a court to apply

the ... plausibility standard ... to ‘dismiss’ class action allegations in a

35

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 36 of 40

complaint.” Royal Mile Co., Inc. v. UPMC, 40 F. Supp. 3d 552, 579
(W.D. Pa. 2014) (citing In re Cmty. Bank of N. Va., 622 F. 3d 275, 303
(3d Cir. 2010)). This is so because, as the Court of Appeals explained,
“the requirements set out in Rule 23 are not mere pleading rules,” and a
court may go beyond the pleadings when examining class certification.
In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 316 (8d Cir.
2008). Thus, “the court must apply Rule 23[,|” instead of Rule 12(b)(6),
“to determine whether class treatment is actually appropriate in this
case.” See Royal, 40 F. Supp. 3d at 579 (emphasis omitted).

Nor is Rule 12¢f) appropriate at this stage. Granted, “courts [may]
strike any ‘redundant, immaterial, impertinent, or scandalous matter’
from a pleading.” Bernstein v. Service Corp. Intl, 2018 WL 64133816, at
*3 (E.D. Pa. 2018) (quoting Fed. R. Civ. P. 12(f)). Further, “[clourts
may|]|... strike class allegations prior to a motion for class
certification.” Jd. But such incidents are “rare,” and present only if
“Tnlo amount of additional class discovery will alter thle] conclusion’
that the class is not maintainable.” Goode v. LexisNexis Risk & Info.
Analytics Grp., Inc., 284 F.R.D. 238, 244-45 (E.D. Pa. 2012) (first

alteration added) (quoting Thompson v. Merck & Co., Inc., 2004 WL

36

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 37 of 40

62710, at *2 (E.D. Pa. 2004)). Third Circuit courts often deny such
motions without prejudice to the movant’s ability to reraise the issue at
the class certification stage. See, e.g., Bombin v. Southwest Airlines,
529 F. Supp. 411, 422-23 E.D. Pa. 2021); see also Bernstein, 2018 WL
6413316, at *8—-4; Andrews v. Home Depot U.S.A., Inc., 2005 WL
1490474, at *3 (D.N.J. 2005).

Moreover, granting a motion to strike class allegations would
violate the law of the case doctrine. The law of the case doctrine “posits
that[,] when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same
case.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815—
16 (1988) (quotation omitted) (quoting Arizona v. California, 460 U.S.
604, 618 (1988)). “The law of the case doctrine[] .. . acts to preclude
review of only those legal issues that the court .. . actually decided,
either expressly or by implication; it does not apply to dicta.” Id. at 718
(citing Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 988
F.2d 414, 429 (8d Cir. 1993)); see also Christianson, 486 U.S. at 816

(‘the doctrine applies... to a court’s own decisions.”).

oT

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 38 of 40

Therefore, whether the rule applies depends on two primary
considerations: “(1) whether [the Court’s] prior determination . . . was
dicta; and (2) whether th[e] case falls into any of the categories of
extraordinary circumstances which would free [the Court] from the
constraints of the law of the case doctrine.” Phila. Litig., 158 F.3d 711,
718 (8d Cir. 1998). A dictum is “a statement in a judicial opinion that
could have been deleted without seriously impairing the analytical
foundations of the holding—that, being peripheral, may not have
received the full and careful consideration of the court that uttered it.”
In re Natl Football League Players Concussion Inj. Litig., 775 F.3d 570,
583 n.18 (citations and quotation omitted). As for extraordinary
circumstances, the Court of Appeals identified three instances: (1) the
availability of “new evidence”; (2) the announcement of “a supervening
new law”; and (8) the “clearly erroneous” nature of the earlier decision,
which “would create manifest injustice.” Phila. Litig., 158 F.3d at 718
(citing Pub. Int. Research Gr. of N.J. v. Magnesium Elektron, Inc., 128
F.3d 111, 116-17 (8d Cir. 1997)).

Here, the Motion fails to satisfy the inquiry under the law of the

case doctrine. Judge Carlson’s R&R of March 31, 2021, subsequently

38

Case 3:18-cv-00121-JFS-PJC Document 218 _ Filed 01/23/26 Page 39 of 40

adopted by the Court, recommended against granting Navient’s earlier
12(f) motion, concluding that resolution of the class allegations on the
pleadings alone was not warranted, as “this is not one of those rare
cases where class certification could be denied [by]. . . striking class
action averments at the outset of the litigation... .” Doc. 56 at 13-14.
That conclusion was not dictum. Nor does Navient satisfy any of the
three scenarios that may warrant reassessment of the Court’s prior
decision, as it presents no new evidence, supervening law, or argument
establishing that Judge Carlson’s R&R was clearly erroneous. See
Phila. Litig., 158 F.3d at 718.

Accordingly, the undersigned recommends that Navient’s motion
to dismiss or strike class allegations be denied without prejudice to its
ability to advance their contentions at a subsequent stage of this
litigation.

IV. Conclusion

For the reasons set forth above, it is RECOMMENDED that the
motion for partial judgment on the pleadings (Doc. 158) be DENIED,
and the Court refer this matter back to the undersigned for further

pretrial management.

39

Case 3:18-cv-00121-JFS-PJC Document 218 Filed 01/23/26 Page 40 of 40

All parties are further placed on notice that, pursuant to Local
Rule 72.3:

Any party may object to a magistrate judge’s proposed
findings, recommendations or report addressing a motion or
matter described in 28 U.S.C. § 636 (b)(1)(B) or making a
recommendation for the disposition of a prisoner case or a
habeas corpus petition within fourteen (14) days after being
served with a copy thereof. Such party shall file with the clerk
of court, and serve on the magistrate judge and all parties,
written objections which shall specifically identify the
portions of the proposed findings, recommendations or report
to which objection is made and the basis for such objections.
The briefing requirements set forth in Local Rule 72.2 shall
apply. A judge shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made and may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge,
however, need conduct a new hearing only in his or her
discretion or where required by law, and may consider the
record developed before the magistrate judge, making his or
her own determination on the basis of that record. The judge
may also receive further evidence, recall witnesses or
recommit the matter to the magistrate judge with
instructions.

M.D. Pa. L. R. 72.8. The failure to file timely. objections to the foregoing
R&R may constitute a waiver of any appellate rights. See Nara v. Frank,
488 F.3d 187, 194 (8d Cir. 2007).

Date: January 23, 2026 s/ Phillip J. Caraballo

Phillip J. Caraballo
United States Magistrate Judge

40