Opinion
No. 4:02-CV-24-3 (CDL)
January 10, 2003
ORDER
The Court presently has pending before it Plaintiffs' motion to certify the above captioned lawsuit as a class action. Plaintiffs seek to certify the following class: all "Muslim citizens who practice the Islamic Faith and who wear the traditional headgear called the `kufi' and may seek to enter one of the 468 establishments owned and controlled by defendants." (Pls.' Br. Supp. Mot. at 1.) The Court finds that Plaintiffs have failed to satisfy the requirements for class certification as described in Rule 23 of the Federal Rules of Civil Procedure. Therefore, Plaintiffs' motion must be denied.
Plaintiffs initially in their Complaint sought certification of a far broader class defined as "approximately six million practicing American Muslims."
BACKGROUND
On January 5, 2002, the Lugo family, all of whom are Plaintiffs in this action, visited the Hollywood Connection, which is owned and operated by Defendant Carmike Cinemas, Inc. The Hollywood Connection contains a movie theater and an arcade room, as well as certain indoor rides and amusements, such as miniature golf and bumper cars. As the Lugo family walked from the movie theater section of the complex to the arcade area, David Posey, a security guard who is named as Defendant John Doe in Plaintiffs' Complaint, approached Mr. Juan Lugo and asked him to remove his headgear to abide by the Hollywood Connection's dress code policy. Mr. Lugo is Muslim and, pursuant to his religion, was wearing a kufi, a traditional Muslim headdress. None of the other members of the Lugo family are Muslim, and none were wearing a kufi. What ensued after the Lugo family was approached by the security guard is partly in dispute, although all parties agree that the family was eventually asked to leave the Hollywood Connection. Plaintiffs maintain that the security guard brought the family to Defendant James Lucas, a manager at the Hollywood Connection who is named as Defendant James Lukes in Plaintiffs' Complaint. Plaintiffs assert that Defendant Lucas promptly and forcibly expelled the entire family when Mr. Lugo refused to take off his kufi.
Members of the Lugo family are: Juan C. Lugo, his children Juanchristian (5 years), Milantra (3 years), and Nihiema (1 year), Tonya Lugo (Juan's wife), and her children Shakeidra Agront (14 years) and Raquel Agront (12 years).
In response to a perceived gang problem in the complex, Carmike Cinemas implemented a dress code policy for its employees and patrons of the Hollywood Connection. This dress code policy, in pertinent part, forbade the wearing of any irregular headgear, such as baseball caps worn in any manner other than forward-facing, bandannas, or skull caps. Carmike contends (and Plaintiffs do not dispute) that this dress code policy applies only to Carmike's single Hollywood Connection facility in Columbus, Georgia.
Defendant Carmike Cinemas, by contrast, maintains that the management of Hollywood Connection conceded that Mr. Lugo could continue to wear his kufi as soon as it learned that the headgear was religious in nature. However, the Lugo family had by this point grown so irate and unruly that the management felt that the best course of action was to escort the family from the premises.
Plaintiffs filed suit against the named Defendants on February 19, 2002, claiming that Defendants had discriminated against them in violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a to 2000a-6. In their Complaint, Plaintiffs sought in relevant part an "Order . . . against the defendants for permanent injunctive relief prohibiting the defendants from such discriminatory acts" as well as compensatory and punitive damages and all costs and expenses of the suit. Plaintiffs at that time also filed a brief in support of their request for class certification, to which Defendant Carmike Cinemas has filed a response.
DISCUSSION
Plaintiffs bear the initial burden of showing that their claim is suitable for class action certification under Rule 23. Rutstein v. Avis Rent-A-Car Systems, Inc., 211 F.3d 1228, 1233 (11th Cir. 2000). Preliminarily, Plaintiffs must meet the prerequisites of subsection (a) of Rule 23. Rule 23(a) permits a class action only if:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (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 protect the interests of the class.
Plaintiffs seek to represent all "Muslim citizens who practice the Islamic Faith and who wear the traditional headgear called the ` kufi' and may seek to enter one of the 468 establishments owned and controlled by defendants." (Pls.' Br. Supp. Mot. at 1). However, the undisputed record before the Court establishes that Carmike Cinemas only has a dress code policy at its Hollywood Connection facility in Columbus, Georgia. (Van Noy Aff. ¶ 4). Therefore, the only claims that could possibly arise from the facts alleged in Plaintiffs' Complaint would be restricted to "Muslim citizens who practice the Islamic Faith and who wear the traditional headgear called the ` kufi' and may seek to enter Defendant's Hollywood Connection facility." Since the class that Plaintiffs seek to certify includes numerous putative class members who have never stepped foot in Hollywood Connection nor plan to visit there, the Court finds that Plaintiffs' claims are not "typical of the claims . . . of the class." Accordingly, Plaintiffs have failed to satisfy the typicality requirement contained in Rule 23(a), and Plaintiffs' motion for class certification must be denied.
Significantly, Plaintiffs have failed even to allege in their Complaint or elsewhere that Defendant Carmike Cinema's Hollywood Connection dress code policy was implemented at any other location owned or operated by Defendant.
See also DeBremaecker v. Short, 433 F.2d 733 (5th Cir. 1970) (binding precedent under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)). In DeBremaecker, the Court held that the defined class was over-broad and not certifiable because it included all residents of Texas when the challenged conduct pertained only to a Houston city matter. Id. at 734. Although the Court in DeBremaecker did not specifically find that the plaintiffs there failed to meet Rule 23(a)'s "typicality" requirement, the Court's holding denying class certification, however it may be construed, applies directly to the case at bar in which Plaintiffs' putative class is likewise over-broad.
The Court observes that even if Plaintiffs narrowed their class to include only those Muslim citizens wearing kufis who visit Hollywood Connection, Plaintiffs would still be unable to satisfy the requirements of Rule 23(a). Although this more narrow class may satisfy the typicality requirement of Rule 23(a), it would fail to meet the numerosity requirement. To satisfy the numerosity requirement, "the class [must be] so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a). "Practicability of joinder depends on many factors, including, for example, the size of the class, ease of identifying its numbers and determining their addresses, facility of making service on them if joined and their geographic dispersion." Kilgo v. Bowman, 789 F.2d 859, 878 (11th Cir. 1986). Although "a plaintiff need not show the precise number of members in the class[,] . . . mere allegations of numerosity are insufficient to meet this prerequisite." Evans v. U.S. Pipe Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983).
Therefore, absent some showing that there are so many kufi-wearing Muslims who are likely to visit the Hollywood Connection that joinder of all members would be impracticable, this narrowed class still could not be certified because it would not meet the numerosity requirement of Rule 23(a).
CONCLUSION
For the foregoing reasons, Plaintiffs' Motion for Class Certification is denied.
IT IS SO ORDERED.