Opinion
Civ. No. 96-513, (REF: ALL CASES), SECTION "L" (1).
March 1, 2000.
ORDER AND REASONS
Before the Court is plaintiffs' motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. For the following reasons, plaintiffs' motion is DENIED.
I. BACKGROUND
On July 1, 1990, defendants Western Atlas International ("Western") and Texaco, Inc. ("Texaco") entered into a contract for geological services whereby Western agreed to conduct seismic surveys for Texaco in search of subsurface geological structures containing accumulations of oil and gas. The seismic surveys consisted of transporting and discharging explosives and other energy sources including air guns in part on state-owned water bottoms leased to the plaintiffs for oyster fanning. Plaintiffs are lessees of the state-owned oyster beds in the South Marsh Island area of Louisiana where Western conducted its surveys for Texaco. They allege that the contract between Western and Texaco, as well as the requirements of the state permits and regulations, required Western to obtain entry permits or permission lease holders and/or at least notify the lease holders of the nature and extent of the seismic activities.
Plaintiffs claim that Western failed to obtain their permission or consent and, in fact, did not even notify them before conducting seismic activities using air guns on or over their leases. In short, they assert that Western breached its duty established by its contract with Texaco as well as the requirements of its permits and state regulations. This breach of duty, explain plaintiffs, resulted in an unlawful entry or trespass on or over their lease holds for which they are entitled to remuneration or compensatory damages.
Plaintiffs now seek to certify a class consisting of "any and all persons or entitles who have held or maintain leases in or from the State of Louisiana for the maintenance and/or operation of oyster beds or reefs and who entered agreements with defendant Western, permitting defendant Western to conduct certain seismic activities on their leases, but who were not adequately notified by Western that Western identified to use air guns as an energy source and, who, because of the failure of Western to disclose the use of air guns as an energy source, did not give Western permission to discharge air guns on their oyster reefs or beds." Pls.' Supp. Mem. at 2.
Plaintiffs previously sought certification of a class of individuals who allegedly sustained physical damages to their oyster leases as a result of Western's actions.
II. ANALYSTS
Class actions permit representative plaintiffs to litigate their claims on behalf of members of the class not before the court. The purpose of a class action is to avoid multiple actions and to allow claimants who could not otherwise litigate their claims individually to bring them as a class. See Crown, Cork Seal Co. v. Parker, 462 U.S. 345, 349 (1983). A district court has great discretion in certifying and managing a class action. See Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999) (citing Montelongo v. Meese, 803 F.2d 1341, 1351 (5th Cir. 1986). The party seeking class certification bears the burden of proving all the requirements set out in Rule 23 of the Federal Rules of Civil Procedure.
Plaintiffs seek to certify their class under the provisions of Rule 23(b)(3). A class may be certified under Rule 23(b)(3) if it meets the four prerequisites found in Rule 23(a) and an additional requirement found in Rule 23(b)(3). The four prerequisites for certifying a class include: (1) numerosity (a class so large that joinder of all members is impracticable); (2) commonality (questions of law or fact common to the class); (3) typicality (named parties' claims or defenses are typical of the class); and (4) adequacy of representation (representatives will fairly and adequately protect the interests of the class). Mullen, 186 F.3d at 623 (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997)).
If the four prerequisites of 23(a) have been demonstrated, then the plaintiffs must satisfy one of the elements of 23(b). In the present case, plaintiffs seek to certify their class under 23(b)(3) which requires:
the court [to] find that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
The plaintiffs in this case would seem to satisfy the numerosity, typicality and adequacy of representation requirements of 23(a). The plaintiffs satisfy the numerosity requirement because there are at least one hundred potential class members even by defendant Western's estimation. See Mullen, 186 F.3d at 624 (finding that a class sized between 100-150 members generally satisfied the numerosity requirement). Typicality is met because the claims and offenses of the named plaintiffs are typical of the claims as well as the defenses of the class. See id. at 625 (quoting Lightbourn v. County of El Paso, 118 F.3d 421, 426 (5th Cir. 1997); Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (holding that a plaintiff's claim is typical if it arises from the same event or practice giving rise to the claims of other class members and is based on the same legal theory as the class members). Finally, the representative parties or plaintiffs would fairly and adequately protect the interest of the class and plaintiffs' counsel are certainly adequately experienced and skilled in the handling of class actions. See Mullen, 186 F.3d at 626 (stating that named plaintiffs are inadequate representatives only if they have conflicts with interests of the other class members).
The prerequisite of commonality under 23(a)(1) and predominance and superiority under 23(b)(3), however, present insurmountable hurdles for certifying plaintiffs' class. First, the plaintiffs fail to demonstrate the common status of the parties to bring a valid claim of trespass. Plaintiffs assert that Western committed a trespass because it neither notified nor obtained the consent of oyster farmers before conducting air shots. Yet, their trespass claims were filed more than one year after the alleged trespass. Potential class members can only survive prescription if the alleged trespass were fraudulently concealed and they did not know that the period of prescription was running. Whether the claims of class members are prescribed, therefore, proves a factual issue unique to each claimant dependent upon what each claimant knew or should have known.
Similarly, if the potential class members base their claims on breach of contract rather than tort, then claimants will need to show the type of contracts and conditions to which they agreed. Plaintiffs contend that they did not know about the use of air guns but defendants point to testimony that some oyster lessees did know in advance about the use of air guns. Def.'s Ex. A at 34-35, 62. While Western concedes that it did not routinely notify oyster farmers about the use of air guns, the potential class is divided between those who knew and those who did not know of the use of air guns. Therefore, the issues of notification and consent are factually specific and differ with each oyster farmer.
Plaintiffs also cannot show that violations of Louisiana law predominate in every case. The Louisiana Administrative Code restricts the discharge of explosives or other energy sources to 250 feet of any oyster reef or bed. La. Admin. Code tit. 76, § 301(P). The question of whether seismographic activity occurred within 250 feet of an oyster reef or bed depends upon the location of thousands of air shots across hundreds of oyster leases. Plaintiffs cannot represent that Western violated Louisiana law with respect-to each lessee without inquiring into the distinct facts of every claimant's case.
Plaintiffs fail to satisfy the necessary requirements for class certification because they cannot demonstrate that common issues of law and fact predominate and make a class action the superior method for resolving their claims. Issues of fact and law differ according to each lessee and therefore make class certification inappropriate. The plaintiffs, however, have made valid prima facie claims. Thus, the matter will proceed regularly before the Court.
III. CONCLUSION
For the foregoing reasons, plaintiffs' motion for class certification is DENTED.
Done this 29 day of February, 2000, New Orleans, Louisiana