Opinion
CIVIL ACTION NO. 03-1214, SECTION: "E" (3)
October 7, 2003
On this date, the matters of class plaintiffs and defendant's Motions to Compel came on for hearing before the undersigned Magistrate Judge. The Court addresses the aforesaid motions serially, granting each of the motions in part and denying each in part as more specifically detailed below.
BACKGROUND
On December 5, 2002, Horizon filed this case as an individual action against BFI, a contractual matter involving a waste disposal contract. Since it was originally filed, the case became a class action and was removed. The claims in this class action case involve allegations that BFI allegedly overcharged its customers in violation of the standard contract. 1. Horizon's Motion to Compel Responses to Third Set of Discovery Requests
On August 15, 2003, Horizon propounded this third set of requests. On August 26, 2003, BFI responded. At issue are BFI's Responses to Interrogatory No. 1 and Request for Production No. 7. The parties positions and proposed resolution with respect to problematic responses are discussed serially below, to wit:
REQUEST FOR PRODUCTION NO. 1 ; Please produce certified copies of all CGL policies or other insurance policies concerning the operation of BFI which were issued from 1993 to the present, including but not limited to declaration pages, rider policies, excess policies, umbrella policies, etc.
BFI's RESPONSE : Objection, irrelevant, burdensome, and not calculated to lead to the discovery of admissible evidence.As to Horizon's Request for Production No. 1 , the plaintiffs' Motion to Compel is DENIED. The Policies sought do not relate to a claim or issue in the case. The defendant need only produce policies which may be liable to satisfy all or part of the judgment and BFI has no such policies. See In the Matter of the Complaint of Yugo Marine, Inc., 1997 WL 610878 * 2 (E.D. La.) (Wilkinson, M. J.).
INTERROGATORY NO. 7 : Your supplemental Rule 26(a)(1) disclosure (Document BFI-208) contains a comment which reads as follows: "Comments rec'd letter from customer's attorney demanding a formal explanation as to why they should have so many price increases. Forwarding to Mike and David Gain K.S." Please identify the full name, address and telephone number of individuals Mike and David Gain and specify their relationship to BFI, their job duties, and when each was hired.
BFI's RESPONSE : Plaintiffs request for information regarding individual handling of one complaint from one plaintiff is beyond the scope of class certification discovery. BFI does not see the pertinence of forwarding Horizon's complaint letter to the two employeesin question.
As to Horizon's Interrogatory No . 7, the plaintiffs motion to Compel is GRANTED.
II. BFI Waste's Motion to Compel Complete Responses to First Set of Discovery Requests
On July 17, 2003, BFI propounded several discovery requests upon Horizon. On August 15, 2003, Horizon responded. However BFI complains that the responses were deficient in several respects. The alleged incomplete and/or insufficient responses are addressed serially below.
INTERROGATORY NO. 6 : Identify the particular subsection of Rule 23(b) of the Federal Rules of Civil Procedure under which Horizon intends to proceed and explain how the putative class plaintiffs case satisfies the requirements of that subsection.
HORIZON'S RESPONSE : Plaintiffs responded with the objection of prematurity noting that the "relevant information will be disclosed in the plaintiff's brief in support of class certification." However, subject to the objection without waiving same, plaintiffs responded that they intend to proceed under all subsections of Rule 23(b).
BFI submits that the response could not be a serious one, considering that the various subsections are highly disparate. BFI argues that it would be a most unusual happenstance that all forms of class action would be applicable to one case. Moreover, the defendant notes that the Uniform Local Rules require that a complaint shall refer to the portions of FRCP 23 under which it is claimed that the suit is properly maintainable as a class action LR23.1(A)(1). Defendants seek an order requiring that Horizon bring their pleadings into compliance with the applicable rules. Since the suit originally commenced in state court, BFI submits that Horizon should now be required to bring their pleadings into compliance by responding more seriously to Interrogatory No. 6.
Horizon's response is that it is indeed seriously considering all types of class action, to wit: (1) Fed.R.Civ.P. 23(b)(1) (risk of inconsistent judgments); (2) Fed.R.Civ.P. 23(b)(2) (the case in which declaratory and injunctive relief predominates over any request for monetary relief; and (3) Fed.R.Civ.P. 23(b)(3) as well.
Rule 23(b)(1) permits class actions where Rule 23(a)'s requirements are met and, in addition, "the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudication with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair their ability to protect their interests."
Rule 23(b)(2) provides that an action may be maintained as a class if the requisites of 23(a) are met and, in addition, the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
Rule 23(b)(3) class members are legal strangers related only by some common question of law or fact. Simon v. World Omni Leasing, Inc., 146 F.R.D. 197, 202 (S.D.Ala. 1992). Class members under the other provisions have interests more closely aligned. Wright, Miller Kane explain the difference, to wit:
As several courts have noted, the critical problem raising due process concerns in actions under subdivision (b)(3) is not simply notice of the institution of the action, but whether the absent members actually are adequately represented. Effective representation is especially important in Rule 23(b)(3) actions because the class members are only loosely associated by common questions of law or fact, rather than by any pre-existing or continuing legal relationship.
In representative actions brought under the other provisions of Rule 23(b), the class generally will be more cohesive — for example, in many instances each member will be affected as a practical matter by a judgment obtained by another member if individual actions were instituted. Similarly, it is less likely that there will be special defenses or issues relating to individual members of a Rule 23(b)(1) or Rule 23(b)(2) class, than in the case of a Rule 23(b)(3) class. This means that there is less reason to be concerned about each member of the class having an opportunity to be present. Thus, in suits under subdivisions (b)(1) or (b)(2), once the court determines that the members are adequately represented as required by Rule 23(a)(4), it is reasonably certain that the named representatives will protect the absent members and give them the functional equivalent of a day in court.
In keeping with this philosophy, class members in Rule 23(b)(1) and Rule 23(b)(2) actions are not provided an opportunity by the rule to exclude themselves from the action as is true in Rule 23(b)(3) actions.
7B Charles A. Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure § 6 (1986) (footnotes omitted).
While plaintiffs purport to seek certification under Rule 23(b)(1) and Rule 23(b)(2) as well as Rule 23(b)(3), it is plain that Rule 23(b)(2) cannot be satisfied on the basis of the allegations with a primary focus on individual demands for monetary relief. See Fed.R.Civ.P. 23 (advisory committee notes) (class certification under (b)(2) "does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages"); cf. Allison v. Citgo Petroleum Corp., 51 F.3d 402, 411 (5th Cir. 1998) ("[M]onetary relief maybe obtained in a(b)(2) class action so long as the predominant relief sought is injunctive or declaratory.").
Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) addressed the extent to which nonequitable monetary relief may be obtained in a(b)(2) proceeding. Monetary relief which may be obtained in a Rule 23a(b)(2) class must be incidental to the injunctive or declaratory relief sought.
Recovery of funds may be permitted where such amounts are not individualized claims under Allison and are instead readily capable of computation by following the objective standards of calculating the increases charged and the determination is not at all dependent on intangible, subjective differences among class members and may not require additional hearings for each individual's case. If the amounts sought are truly in the nature of a group remedy then (b)(2) may be an appropriate vehicle for class certification.
As to BFI's Interrogatory No. 6 , the defendant's Motion to Compel is GRANTED in that, having indicated that plaintiffs intend to proceed under all three sections (i.e., Fed.R.Civ.P. (b)(1), (b)(2), (b)(3)), plaintiff must supplement its response to indicate in some rudimentary fashion how the class plaintiffs case fits within the parameters of each subsection, (b)(1), (b)(2) and (3).
INTERROGATORY NO. 10 : Provide a detailed description of your proposed "class" trial plan including: (a) Identify each cause for which you contend liability can be established for all class members based solely on evidence presented by class representatives; (b) identify each and every common issue that you contend can be resolved on a class wide basis; c) identify each issue that you contend should be resolved in the individual phase of the proposed trial plan.
HORIZON'S RESPONSE : Horizon objected on the basis of attorney-client privilege and that the interrogatory is premature. In this vein, Horizon notes that BFI has not completely responded to its discovery requests. Subject to the objections, Horizon responded generally noting that the Horizon-BFI contract is substantially the same form contract used between BFI and all other Louisiana customers. BFI further notes that certain terms and conditions appeared in customer contracts and issues regarding the terms of the contracts, definitions contained therein, the amount of customer rate increases, the formula for calculating increases, whether the increases are permissible, etc. are all common.
BFI notes that the response does not set forth Horizon's trial plan. It further argues that if in fact Horizon intends to proceed with a 23(b)(3) class, plaintiffs must be prepared to present the trial court with a workable plan.
The Court recognizes that clearing the predominance hurdle set by (b)(3) requires consideration of how a trial on the merits would be conducted if a class were certified, which entails identifying each of the substantive issues which will control the outcome, assessing which issues will predominate and then determining whether the issues are common to the class. This process prevents the class from degenerating into a series of individual mini-trials. It is clear, that absent such a plan, plaintiffs face an uphill battle in attempting to certify a (b)(3) class, because without such a plan it is difficult, at best, to demonstrate how the case can manageably proceed. See Spence v. Clock, 221 F.3d 308, 313 (5th Cir. 2000); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 420 n. 15(5th Cir. 1998).
As to BFI's Interrogatory No. 10 , the defendants' Motion to Compel is DENIED IN PART, insofar as it seeks a detailed synopsis of the plaintiffs "trial plan" or "litigation plan." See O'Sullivan v. Countrywide Home Loans, Inc., 202 F.R.D. 504, 514 (S.D. Tex.) (held no obligation to submit a "trial plan"), rev'd on other grounds, 319 F.3d 732 (5th Cir. 2003) (finding insufficient proof on the issue of manageability). Nevertheless, to the extent that the defendants seek information regarding each and every cause and each common issue that plaintiffs contend can be resolved on a class wide basis, defendant's Motion to Compel is GRANTED IN PART, and thus the plaintiff shall supplement its response to Interrogatory No. 10 in that regard. There should be no eleventh hour surprises with respect to the issues that the plaintiff maintains should be resolved on a class-wide basis.
INTERROGATORY NO. 11 : In paragraph XXIII of your First Supplemental and Amended Petition for Damages you also state that "the great majority of unnamed class members have no substantial interest in individually controlling the prosecution of their separate actions." Please state the basis for your contention and identify each individual (by name, last known address, telephone number, employer and position) who has or may have knowledge to support this contention and identify all documents and other evidence that support this contention. Additionally please answer the following questions:
A. The implied predicate to this assertion is that there are a large number of unnamed class members who would be substantially interested in participating in this case if brought as a class action. If you contend that this is so, please state the basis for your contention and identify each individual (by name, last known address, telephone number, employer and position) who has or may have knowledge to support this contention and identify all documents and other evidence that support this contention.
B. List the names and addresses of potential class members who have affirmatively indicated they would be substantially interested in participating in this case if brought as a class action.
C. State whether you have had any communication, either oral or written, with any unnamed proposed class member relating to this litigation, and, if so, please identify the recipient of the communication, whether the communication was oral or written, and the substance of each communication.
D. Identify by name, address, and telephone number any potential class member, other than Horizon, that may be added or, if necessary, substituted for Horizon as a class representative.
HORIZON'S RESPONSE: Horizon objects to the interrogatory as premature and notes that the information will be disclosed in the plaintiff's brief in support of class certification and on the date of the certification hearing established by the Court. Horizon further notes that BFI has not completely responded to discovery propounded to date and submits that Horizon is a proper class representative.
Horizon notes that contrary to BFI's suggestion, there are plenty of other businesses in addition to Horizon that were damaged. Horizon highlights the fact that there is another class action pending in Iberia Parish, which indicates that the sentiment against BFI is strong. Horizon notes that there is no requirement that it join all parties and that the whole purpose of the class action is that it should not be necessary to do so.
BFI submits that to its knowledge price increases were made for a variety of reasons, many of which were individual to particular customers.
As to BFI's Interrogatory No. 7 , the defendant's Motion to Compel is GRANTED. The plaintiff shall supplement its response in this regard informing the defendant of any other customers of which Horizon is aware, aside from the class in Iberia Parish, who plaintiff contends have been unjustifiably damaged. The Court is not persuaded by the plaintiffs prematurity argument and the information is relevant to the class certification issues. The Court notes that plaintiff has previously advised that it is proceeding with all three types of classes. Plaintiff should supply information in this regard now, subject to the obligation to supplement should additional information become available as discovery proceeds.
INTERROGATORY NO. 17 : Please explain in detail, including relevant dates, the relationship between Horizon Federal Savings and Loan Association and Horizon Security and Vault Complex.
HORIZON'S RESPONSE : Plaintiffs object to this interrogatory as it is irrelevant.
Horizon notes that the claim against BFI is based upon a 1993 contract entered between Horizon and BFI. Horizon submits that BFI wants to know about Horizon Federal Savings and Loan because it allegedly entered a contract with BFI before Horizon entered the subject 1993 contract. Horizon submits that, because Horizon Federal Savings and Loan is not a party and did not enter a contract during the relevant time period, BFI need not know anything other than that it is a separate entity. If more information is required, Horizon submits that it should be allowed to amend its class definition to enlarge the period of time for which damages are recoverable.
As to BFI's Interrogatory No. 11 , the defendant's Motion to Compel is DENIED, without prejudice to its right to re-propound the request in the merits phase, since it may be relevant to Horizon's individual contract claim. Horizon has in fact responded that Horizon Federal is a wholly separate entity that contracted during another time period, which is unrelated to the class Horizon seeks to certify. Horizon's response is sufficient for purposes of the class certification phase. The Court reserves ruling on the issue of whether a more complete response maybe relevant in phase II (i.e., the class action proceeding on the merits and/or Horizon's individual contract claim).
REQUEST FOR PRODUCTION NO. 3 : Please produce those portions of the personnel files of the individuals identified in Interrogatories Nos. 13 and 14 reflecting the information provided in Interrogatory 13 and 14 as well as any portion relating to interaction of the employee with BFI.
HORIZON'S RESPONSE : Plaintiffs object to this request as it is irrelevant and intended to harass, annoy, and embarrass. Also, the request seeks confidential, personal identity information.
Pursuant to the hearing in Chambers, counsel for the plaintiff agreed to re-review the subject personnel files again to provide any documents relating to the matters discussed.
As to BFI's Request for Production No. 3 . the defendant's Motion to Compel is DISMISSED AS MOOT pursuant to the agreement of the parties.
REOUEST FOR ADMISSION NO. 6 : Admit that the table attached hereto as Exhibit "P" is a true and correct copy of the Consumer Price Index table generated by the U.S. Department of Labor, Bureau of Labor and Statistics.
RESPONSE TO REOUEST FOR ADMISSION NO. 6 : Denied for lack of sufficient information to justify a belief therein. Plaintiffs are unaware of who created that document and the authenticity of the same.As to BFI's Request for Admission No. 6 , the defendant's Motion to Compel is DISMISSED AS MOOT pursuant to the agreement of the parties that there would be a stipulation as to authenticity after counsel for the defendant provided further documentation.