Opinion
Case No. 2:99-CV-00147PGC.
November 2, 2004
ORDER AMENDING PRIOR ORDER DENYING MOTION FOR CERTIFICATION OF CLASS ACTION
The court previously issued an Order Denying Plaintiff's Motion for Certification on the 1st, 2nd and 3rd Claims for Relief. The court mistakenly issued the Order before having received Plaintiff's reply brief. Having now received the reply brief, the court again DENIES the motion for certification, but does so for different reasons than stated in the prior order.
In its prior order the court held that plaintiff's motion for certification was untimely. Plaintiff's motion for certification was filed more than five years after the complaint was filed and after discovery was closed. Indeed, the motion for certification was filed on the final day motions could be filed. Nevertheless, the court's prior holding was incorrect. While plaintiff's motion for certification should have been filed earlier, the obligation to certify the class "[a]s soon as practicable after the commencement of an action brought as a class action" is upon the court. The Tenth Circuit has squarely held that "the trial court is obligated to take up class action status whether requested to do so or not by a party or parties where it is an element of the case." Thus, regardless of the timeliness of plaintiff's motion for certification, it was the court's obligation to ensure that class certification was determined as soon as practicable after the action was commenced.
Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 274 (10th Cir. 1977); see also, WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 1785 ("[T]he court has an independent obligation to decide whether an action brought on a class basis is to be so maintained even if neither of the parties moves for a ruling under subdivision (c)(1).").
See Castro v. Beecher, 459 F.2d 725, 731 (1st Cir. 1972) (noting that where class action allegations were in complaint, district court erred in denying motion for certification as untimely).
Because the court's prior decision was made on procedural grounds, the merits of certification were not addressed. Having now reviewed the merits of the issue, the court finds that plaintiff's not met the requirements of Rule 23(a) and therefore denies certification.
Rule 23(a) provides:
One or more members of a class may sue or be sues as representative parties on behalf of all 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.
"A party seeking class action certification must demonstrate, under a strict burden of proof, that all of the requirements of 23(a) are clearly met."
Rex v. Owens, 585 F.2d 432, 435 (10th Cir. 1978).
The first factor is impracticality of joinder, or numerosity. "The burden is upon plaintiffs seeking to represent a class to establish that the class is so numerous as to make joinder impracticable." The determination of numerosity is made on a case-by-case basis considering all relevant factors. "The most obvious consideration is the size of the class itself." There are 84 members of the proposed class, which is not an insignificant number, but is also not such a large number as to raise a presumption of numerosity. Plaintiffs also contend that joinder is impractical because most of the members of the potential class speak little or no English and are afraid of the legal system. However, most of the named parties also speak little or no English, and plaintiff has presented no evidence to this court that proposed class members are afraid of the legal system or otherwise could not be joined. Most importantly, the names and addresses of the potential class members were all provided to plaintiffs during discovery. Given this, the court cannot say that joinder is impracticable.
Peterson v. Oklahoma City Housing Authority, 545 F.2d 1270, 1273 (10th Cir. 1976).
WRIGHT, ET AL., § 1762.
See e.g., Monarch Asphalt Sales, Co. Inc. v. Wilshire Oil Co. of Texas, 511 F.2d 1073, 1077 (10th Cir. 1975) (upholding denial of certification of 37 potential class members stating "we doubt that joinder of all members was impractical"); Horn, 555 F.2d at 275 (upholding district court's determination that joinder of 41 employees in racial discrimination suit would not be impractical). Compare M.A.C. v. Betit, 284 F.Supp.2d 1298 (D. Utah 2003) (1,316 class members "geographically dispersed throughout Utah" and because on Medicare "by definition lack the financial resources on their own"); Ditty v. Check Rite, Ltd., 182 F.R.D. 639 (D. Utah 1998) (class of 15,000 too numerous to join).
Moreover, plaintiffs have presented no evidence in support of their motion for certification beyond the mere assertions contained in their pleadings and the affidavit of Rafael Gomez. Gomez's affidavit states that most of the potential class members speak little English; that except for two customers, all of the other potential class members were Hispanic; and that he has "personal knowledge that many of [his] former customers and employees have become fearful of the Salt Lake City Police Department and the American legal system." Gomez's vague and conclusory affidavit is not sufficient to show that joinder of the potential class members is impractical. Plaintiffs were provided with the names and addresses of all 84 potential class members and have made no showing that any particular class member cannot be joined or refuses to be joined out of fear of the legal system. After years of discovery, plaintiff's conclusory allegations are insufficient to demonstrate that joinder is impracticable.
Third Affidavit of Rafael Gomez at ¶¶ 5, 9.
Plaintiffs also argue that the court should take as true the facts pleaded in the complaint. However, whereas all of the discovery has been conducted, there is no reason for the court to take as true the facts pleaded in the complaint when making this determination. "The determination usually should be predicated on more information than the complaint itself affords." Indeed, Rule 23(c)(1) allows the court to make certification conditional so that it may be altered or amended as new facts present themselves. Moreover, when a record has been developed, class certification should be determined based on the record.
WRIGHT, ET AL., § 1785.
East Tex. Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 406 n. 12 (1977) (stating that where "class claims remain to be tried, the decision whether the named plaintiffs should represent a class is appropriately made on the full record. . . .").
In sum, based on the evidence before the court, the plaintiff has failed to meet its burden that potential class members are so numerous as to make joinder impracticable. As such, the court denies the motion for certification. Plaintiffs shall be allowed to proceed in their individual capacities.
The second requirement is that there be questions of law and fact common to all class members. Having now reviewed and ruled upon the defendants motion for summary judgment, the court recognizes that while there are certainly commonalities among the plaintiffs, the plaintiffs also present divergent fact patterns which make this case inappropriate for class action status. The jury's determination of reasonableness will rely on numerous factors which differ significantly as to many plaintiffs such as (1) how long the plaintiffs were detained; (2) where the plaintiffs were detained; (3) whether the plaintiff is an owner, employer, customer, or bystander; and (4) the degree of force used with each plaintiff, among many others. It seems clear to the court that the jury may award damages to some of the plaintiffs but find that others are not entitled to damages. These significant factual differences make certification as a class action appropriate.
In sum, the court expects that the trial in this matter will be highly fact-sensitive with respect to each plaintiff's claims. Because of the significant factual differences, along with plaintiffs' failure to demonstrate the impracticality of joinder, the court holds that class certification is inappropriate.
Plaintiffs' motion for certification is DENIED (#277-1).