Opinion
Case No. 2:02-CV-196 TC.
June 7, 2004
ORDER
This matter comes before the court on Plaintiff Patrice Butler's Motion for Class Certification and Defendant Delta Air Lines, Inc.'s ("Delta") objection to United States Magistrate Judge Brooke Wells' Report Recommendation ("RR") recommending class certification in this diversity tort case. Also before the court is Ms. Butler's Motion to Strike Delta's Reply Memorandum in Support of its Objection.
Plaintiff Patrice Butler, in her Motion for Class Certification, seeks certification of a class action pursuant to Federal Rule of Civil Procedure 23(b)(3), under which she would serve as the class representative and potential class members could choose to "opt out" of the lawsuit. Delta opposed the motion and objects to Judge Wells' recommendation. Delta opposes certification on the basis that Ms. Butler's claims cannot satisfy the prerequisites for class certification and that the court does not have diversity jurisdiction over the claims of the proposed class members.
For the reasons set forth below, Ms. Butler's Motion for Class Certification is GRANTED. Specifically, based on a de novo review of the record, the court adopts Judge Wells' recommendation that the proposed class be certified. The court declines to reach the issue of diversity jurisdiction in the context of Ms. Butler's motion for class certification.
Also, for the reasons set forth below, Ms. Butler's Motion to Strike is GRANTED IN PART and DENIED IN PART.
BACKGROUND
On March 8, 1998, 128 passengers on Delta Flight 1267 were en route from Salt Lake City, Utah, to Missoula, Montana, when problems with the plane's electrical system lead to fumes, haze, and smoke entering the cabin where the passengers were seated. Some passengers experienced burning in their eyes, nose, and throat, presumably from the smoke, fumes, and haze that filled the cabin. During the course of the flight, the captain informed the flight attendants and passengers that because of the problems with the plane, they were returning to Salt Lake City. The crew told the passengers that preparations were underway for a possible emergency or crash landing and instructed them on emergency procedures and how to evacuate the aircraft. The plane was in the air for approximately 45 minutes.
Shortly after landing in Salt Lake City without any major incident, emergency personnel in protective suits boarded the plane and inspected it. The passengers got off the plane and returned to Missoula on other flights.
Ms. Butler, a resident of the State of Montana, was one of the 128 passengers. She filed a complaint against Delta, asserting claims of negligence and negligence per se on her behalf as well as on behalf of a proposed "Passenger Class" described as follows: "All persons who were passengers on Delta Airline Flight 1267 on March 8, 1998, departing from Salt Lake City [Utah] with intended destination of Missoula, Montana." (Pl.'s Mem. in Supp. at 18.)
The number of passengers was calculated based on two facts: (1) the capacity of the plane was 128 people; and (2) one of the flight attendants testified in her deposition that the plane was full. (See Pl.'s Br. in Supp. of Mot. for Class Cert. (citing to Ewell Depo. at 34, attached to Pl.'s Br. as Ex. CC).) Delta has not produced the full passenger list for various reasons. Nevertheless, neither party disputes the conclusion that 128 passengers experienced the problems that occurred during Flight 1267.
She also originally sued Boeing Corporation (the manufacturer of the plane), but Boeing was terminated as a party in January 2003.
In her claim for damages, she alleges that she and members of the potential passenger class were "exposed to noxious smoke, fumes and poison gas, endured a traumatic, life-threatening episode and sustained significant and permanent physical injuries including, but not limited to, damage to the airway and lungs and breathing difficulties." (Am. Compl. ¶ 27.) She further alleges that she and the passenger class suffered and continue to suffer from "severe mental and emotional distress and enjoyment of life." (Id. ¶ 28.) She alleges that some class members also suffered loss of income and loss of earning capacity. (Id. ¶ 29.) She seeks "reasonable and necessary medical, mental health and rehabilitation expenses" and medical monitoring for her and the proposed class. (See id. ¶¶ 29-30, 48(d).)
ANALYSIS
A. Ms. Butler's Motion to Strike Delta's Reply Memorandum
As a threshold matter, the court must address Ms. Butler's motion to strike Delta's Reply Memorandum pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. Ms. Butler asserts that the rules governing filing of objections to magistrate reports and recommendations do not allow the opportunity to file a reply memorandum and so Delta's Reply Memorandum should be stricken. As part of her Motion to Strike, she requests attorneys' fees incurred in bringing the motion to strike. Delta contends that Local Rule 7-1(b)(3), which governs the format and filing times for motions in general, supports Delta's filing of a reply to rebut matters raised in Ms. Butler's responsive memorandum.
There are two procedural rules that specifically govern pleadings relating to parties' objections to recommendations issued by United States magistrate judges. First, District of Utah Local Rule 74-1 provides that "[o]bjections to magistrate judge reports and recommendations must be filed and determined under Fed.R.Civ.P. 72(b)." DUCivR 74-1(a)(2) (emphasis added). Rule 72(b) of the Federal Rules of Civil Procedure contains the following relevant language:
Within 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations. A party may respond to another party's objections within 10 days after being served with a copy thereof.
Although Rule 72(b) does not expressly authorize the filing of a reply to the response, it does not specifically prohibit the filing of a reply. Still, despite Delta's reliance on Local Rule 7-1(b)(3), it appears that the other, more specific, rules addressing the procedure for objecting to reports and recommendations apply. This is particularly so given the mandatory language of DUCivR74-1(a)(2) ("must be filed" according to Rule 72(b)), and the language of Rule 72(b), which sets forth different filing times than those allowed in the local rule Delta cites.
Ms. Butler's request to strike is GRANTED. However, because the rules are not altogether clear, the court finds that an award of attorneys' fees to Ms. Butler is not warranted. Accordingly, her request for attorneys' fees is DENIED.
B. Plaintiff's Motion for Class Certification and Judge Wells' RR
The court reviews Judge Wells' RR under the de novo standard of review. 28 U.S.C. § 636(b)(1).
1. Requirements for Certification of a Class Under Rule 23(b)(3)
Ms. Butler has the burden of proving that the suit should proceed as a class action. Commander Properties Corp. v. Beech Aircraft Corp., 164 F.R.D. 529, 534 (D. Kan. 1995) (citing Rex v. Owens, 585 F.2d 432, 435 (10th Cir. 1978)). In order to obtain class certification under Rule 23(b)(3), Ms. Butler must satisfy six criteria. First, Rule 23(a) sets forth four threshold requirements applicable to all class actions:
a. numerosity (the class is so large that "joinder of all members is impracticable");
b. commonality ("there are questions of law or fact common to the class");
c. typicality (Ms. Butler's claims "are typical of the claims or defenses of the class"); and
d. adequacy of representation (Ms. Butler and her attorneys "will fairly and adequately protect the interests of the class").
Fed.R.Civ.P. 23(a); Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997). In addition, in order to obtain certification under Rule 23(b)(3), she must establish:
e. predominance (common questions of law or fact "predominate over any questions affecting only individual members"); and
f. superiority (format of class action is "superior to other available methods for the fair and efficient adjudication of the controversy").
Fed.R.Civ.P. 23(b)(3); Amchem, 521 U.S. at 615. Failure to satisfy any one of the criteria listed above precludes class certification. Stewart v. Associates Consumer Discount Co., 183 F.R.D. 189, 194 (E.D. Pa. 1998).
When determining whether to certify a class, a court must take the plaintiff's allegations as true and should not conduct a preliminary inquiry into the merits of the suit. Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177-78 (1974); Becher v. Long Island Lighting Co., 164 F.R.D. 144, 148 (E.D.N.Y. 1996) (citing Eisen). A "rigorous analysis" must be done to determine whether the requirements of Rule 23 are met. General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). Still, if the question of class certification is a close one, a court should err in favor of granting class certification, particularly because the class certification can always be re-evaluated in the future if necessary. Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968);Joseph v. General Motors Corp., 109 F.R.D. 635, 638 (D. Colo. 1986). See also, Stewart, 183 F.R.D. at 194 ("The requirements under Rule 23 should be given a liberal rather than a restrictive construction").
Before applying the above six criteria, the court must determine whether a well defined class exists and whether Ms. Butler is a member of the proposed class. Polich v. Burlington Northern, Inc., 116 F.R.D. 258, 261 (D. Mont. 1987). It is not necessary that every potential member be identified; rather, "the description of the class must be sufficiently definite so that it is administratively feasible for the court to ascertain whether a particular individual is a member." Joseph, 109 F.R.D. at 639. Ms. Butler seeks to have the following class certified:
All persons who were passengers on Delta Airline Flight 1267 on March 8, 1998, departing from Salt Lake City with intended destination of Missoula, Montana.
(Pl.'s Mem. in Supp. at 18.) Ms. Butler is clearly a member of the class, and the parameters of the proposed class are well-defined.
a. Numerosity
The numerosity criterion requires that "the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a). The issue of whether joinder would be impracticable encompasses not only the number of proposed class members but the size of individuals' claims, the individuals' ability to recover adequate compensation in light of realistic transaction costs, judicial economy, and geographic diversity of the proposed class members. See, e.g., Eisen v. Carlisle Jacquelin, 417 U.S. 156, 158 (1974) (there is numerosity if "[e]conomic reality dictates that petitioner's suit proceed as a class action or not at all."); Arenson v. Whitehall Convalescent Nursing Home, 164 F.R.D. 659, 663 (N.D. Ill. 1996). See also Stewart, 183 F.R.D. at 194 (the issue is "whether the representative plaintiff has demonstrated the probability of the existence of a sufficient number of persons similarly inclined and similarly situated to render the class action device the appropriate mechanism for obtaining judicial determination of the rights alleged."). In making this determination, the court is entitled to make common sense assumptions. Arenson, 164 F.R.D. at 662.
Here, the proposed class would have up to 127 members. This number is certainly within the realm of other cases where a number less than 127 people was still considered a sufficient size for a class action. (See, e.g., cases cited in Pl.'s Mem. in Supp. at 20.) And Ms. Butler suggests that the transaction costs involved in this litigation are and will be significant. "Where costs can be shared among members of the class, a higher percentage of eventual recoveries can be used to compensate plaintiffs." (Pl.'s Mem. in Supp. at 21.) Also, Delta has not provided Ms. Butler with a complete list of all of the passengers who would be included in the class as defined, and it is not clear whether Delta will ever be able to provide a complete list. (See Pl.'s Reply Mem. in Supp. of Class Cert. at 3 ("at least 105 of the class members" are unknown, and so cannot be served with process or contacted).) It appears, then, that it would not be possible to join all the passengers.
Delta settled a claim with one of the 128 passengers, so the potential class size is 127 people. (See Pl.'s Reply Br. at p. 5 n. 4.)
Delta unpersuasively reasons that only two claimants have come forward in the last six years and so there is no good reason to believe that parties are failing to bring their suits because of transaction costs. Delta further contends that "the only individuals who could appropriately bring claims of emotional distress would be those who suffered physical injury. Only two such individuals ever made such a claim against Delta, and only one of those brought suit." (Delta's Objection at 22.) Accordingly, Delta argues, Ms. Butler "has not demonstrated that joinder of all individuals who were actually injured is impracticable." (Id.) But Delta's argument, in addition to being speculative, goes to the merits of the case, which should not be evaluated at this stage in the litigation. Eisen, 417 U.S. at 177-78. See also Stewart, 183 F.R.D. at 194 ("a class may be certified even though the initial definition includes members who have not been injured or do not wish to pursue claims against the defendant").
Ms. Butler has satisfied the numerosity requirement, as Judge Wells concluded in her RR.
b. Commonality
The commonality criterion requires that there be "questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). But not all of the questions of law or fact raised in the suit need to be common. Stewart v. Associates Consumer Discount Co., 183 F.R.D. 189, 194 (E.D. Pa. 1998). Courts have found commonality when "the claim or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory." Id. at 195. "A common nucleus of operative facts is usually enough to satisfy the commonality requirement of Rule 23(a)(2)." Arenson, 164 F.R.D. at 663 (quoting Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)). A common nucleus of operative fact is found "where the defendants have engaged in standardized conduct toward members of the proposed class." Id. at 664.
Ms. Butler has satisfied this criterion. Every class member's claim arises from the same event and the same nucleus of facts. Some of the common questions of fact include:
• The nature of the fumes, haze and smoke released into the cabin of Flight 1267;
• How the fumes, haze and smoke were generated and released into the cabin;
• What acts or omissions of Delta caused the fumes, haze and smoke to be generated and released;
• Whether Delta failed to maintain and operate the plane safely; and
• The nature of the common experience of the passengers.
(See Pl.'s Mem. in Supp. at 29.) Some of the common issues of law are:
• Whether Delta breached duties of care owed to Ms. Butler and class members; and
• Whether Delta, as a common carrier, was negligent per se for the release of noxious fumes into the passenger cabin.
(See id. at 29-30.)
The event at issue was a single, discrete occurrence, confined in time and space, that naturally gives rise to common issues of fact and law. Judge Wells correctly concluded that the commonality criterion has been satisfied.
c. Typicality
The typicality criterion requires that "claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a). The purpose of the typicality criterion is to ensure that the absent class members will be adequately represented by the class representative. Sala v. National Passenger Corp., 120 F.R.D. 494, 497 (E.D. Pa. 1988). The typicality criterion is closely related to the commonality criterion. "[A] `plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.'" Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (internal citation omitted).
Clearly Ms. Butler's claim arises from the same event as the other passengers' purported claims, and the claims are certainly based on the same legal theory. Delta attempts to challenge this aspect of the class criteria by arguing that Ms. Butler's claimed injuries are not typical of the class. But Delta's argument goes to the merits of the case and demands a showing of more than is required under the typicality criterion. Moreover, "[d]ifferences in the degree of harm suffered, or even in the ability to prove damages, . . . do not vitiate the typicality of a representative's claims." Ouelette v. International Paper Co., 86 F.R.D. 476, 480 (D. Vt. 1980).
Ms. Butler submitted the declaration and preliminary opinions of Rosemarie Bowler, Ph.D, M.P.H., in support of the proposition that "every passenger suffered substantial injury in the form of emotional distress during [the] flight." (Pl.'s Response to Def.'s Objection at 11; see also Pl.'s Br. in Supp. of Mot. for Class Cert. at 11-12.) The court is not considering Dr. Bowler's declaration in making its class certification determination.
Judge Wells correctly found that the typicality criterion has been satisfied.
d. Adequacy of Representation
The adequacy of representation criterion requires that both Ms. Butler and her attorneys "fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a). This requirement has two parts: (1) the named representative's interest must not be antagonistic to the class interests, and (2) the named representative's attorneys must be qualified, experienced, and generally capable of conducting the litigation. See Amchem, 521 U.S. at 626, 626 n. 20; Ditty, 182 F.R.D. at 642.
The record clearly shows that Ms. Butler's attorneys are qualified to represent the class as legal counsel, and Delta does not dispute this. And nothing in the record demonstrates that Ms. Butler has any antagonistic interest or conflict with the other members of the class. Moreover, it appears that Ms. Butler will vigorously advocate the rights of the proposed class members.See Arenson, 164 F.R.D. at 664.
Judge Wells correctly found that both aspects of the adequacy of representation criterion have been satisfied by Ms. Butler.
e. Predominance
The criterion of predominance requires that common questions of law or fact "predominate over any questions affecting only individual members." Fed.R.Civ.P. 23(b)(3). "[T]he critical test is whether there is material variation in the defendants' posture towards the different plaintiffs." Ditty v. Check Rite, Ltd., 182 F.R.D. 639, 643 (D. Utah 1998) (quoting Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968)) (internal quotation marks omitted). When determining whether common questions predominate over individual questions, courts generally focus on the issue of liability. Gold Strike Stamp Co. v. Christensen, 436 F.2d 791, 796 (10th Cir. 1970); Stewart, 183 F.R.D. at 197;Zapata v. IBP, Inc., 167 F.R.D. 147, 163 (D. Kan. 1996).
Delta contends that individual choice of law issues and individual causation and damage questions predominate over any of the common issues identified by Ms. Butler. The court disagrees.
With respect to the choice of law issues, Delta has not presented evidence that a conflict of law even exists, which is what is needed to trigger the choice of law analysis in the first place. See Littlefield v. Mobil Exploration Producing, N. Am., Inc., 988 F. Supp. 1403, 1406 (D. Utah 1996) (initial step in resolving choice of law question is whether conflict exists);Jeffs v. Stubbs, 970 P.2d 1234, 1251 n. 14 (Utah 1998) (applying Utah law because no conflict with other state's law existed); Morris v. Sykes, 624 P.2d 681, 684 (Utah 1981) (same). Second, even if a conflict of law were identified, a relatively straightforward analysis under Utah's choice of law rules would be done.
Delta also suggests that different statutes of limitations may apply, including a statute of limitation set forth in the Warsaw Convention. (See Delta's Objection at 12.) This argument is not persuasive. Delta has not provided any evidence that any of the known passengers on board Flight 1267 were originally on international flights (or whether Delta Flight 1267, clearly a domestic flight, would even qualify as an international flight under any provision or interpretation of the Warsaw Convention). "Claims regarding theoretical issues that might arise are not sufficient to defeat class certification. Robertson v. National Basketball Ass'n, 389 F. Supp. 867, 899 (S.D.N.Y. 1975) (class action status will not be denied in the absence of a showing that the alleged potential conflicts are real probabilities and not mere imaginative speculation)." Serfaty v. International Automated Sys., Inc., 180 F.R.D. 418, 420 (D. Utah 1998).
With regard to causation, there are common areas of proof that outweigh any differences that might arise. For common questions to predominate over individual ones, the group should be "more bound together by a mutual interest in the settlement of common questions than it is divided by the individual members' interest in the matters peculiar to them." Stewart, 183 F.R.D. at 197. Even if various Plaintiffs brought their own actions, each would have to present much of the same evidence in order to prove liability, including aspects of causation. Moreover, the fact that the event was a single occurrence, confined in both space and time, under identical circumstances, supports a finding of predominance. See, e.g., Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1988) (affirming class certification of personal injury action relating to ingestion of contaminated water by individuals living in vicinity of landfill; "where the defendant's liability can be determined on a class-wide basis because the cause of the disaster is a single course of conduct which is identical for each of the plaintiffs, a class action may be the best suited vehicle to resolve such a controversy").
The cases cited by Delta to support its argument, including In re Three Mile Island Litigation, 87 F.R.D. 433 (M.D. Pa. 1980), and Sanna v. Delta Airlines, 132 F.R.D. 47 (N.D. Ohio 1990), are distinguishable. In Three Mile Island, the court was asked to certify a class that consisted of "[a]ll those individuals within a twenty-five mile radius of Three Mile Island who suffered personal injury, incurred medical expenses, are threatened with medical expenses and/or illness, suffered emotional distress and/or will require medical detection services, including independent inspections and surveys, for a reasonable number of years in the future to monitor the possibility of latent defects of said exposure, as a result of the nuclear incident" at Three Mile Island Id. at 435. The court denied class certification in part because the claims were too "diverse and personal." Id. at 441. For instance, the court found that one plaintiff's decision to undergo an abortion had little in common with another plaintiff's hypertension, and another plaintiff's diarrhea, headaches and nausea. Here, the proposed class members are much more bound together in their experience: they were on the same airplane, breathing the same type and amount of fumes and smoke over the same amount of time; they experienced the same panicked reactions of passengers, and the same instructions and reactions of the flight attendants and flight crew; they experienced the same emergency landing preparation and similar concern about the plane's viability in the air.
As for Sanna, that case was governed by the Warsaw Convention and a different standard of liability applied. See Sanna, 132 F.R.D. at 50. Moreover, the plaintiff in Sanna had failed to satisfy other class certification criteria, including numerosity.Id.
Further, the language in the 1966 Advisory Committee Note to Rule 23 does not preclude a finding of predominance in this case. The Advisory Committee Note reads:
A "mass accident" resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways. In these circumstances an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried.
Fed.R.Civ.P. 23 advisory committee's 1966 note to rule subdivision (b)(3), reprinted in 39 F.R.D. 69, 103 (1966). The import of this comment, however, has eroded over time. See, e.g., Amchem, 521 U.S. at 625 ("the text of the Rule does not categorically exclude mass tort cases from class certification, and District Courts, since the late 1970's, have been certifying such cases in increasing number"). In addition, the event here was not a mass accident presenting the same types of problems inherent in, for example, the asbestos litigation cases where levels, duration, and timing of exposure varied greatly.
Looking at the damage issues, Delta claims that these issues will actually generate "128 mini-trials" and that the issues are too individual to be represented by a bellwether damage representative (a method Ms. Butler suggests for solving any individual issues), particularly when it comes to medical monitoring and emotional distress damages. But, "[c]lass certification is not properly withheld merely because there may be some variation in damages among members of the plaintiff class." Ditty v. Check Rite, Ltd., Inc., 182 F.R.D. 639, 644 (D. Utah 1998). See also Gold Strike Stamp Co. v. Christensen, 436 F.2d 791, 798 (10th Cir. 1970) ("The fact that there may have to be individual examinations on the issue of damages has never been held [to be] a bar to class actions").
In short, the court finds that the similarities among members of the class outweigh the possible differences. Accordingly, Judge Wells was correct in concluding that Ms. Butler has satisfied the criterion of predominance.
f. Superiority
The criterion of superiority requires that the "class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3). The four factors relevant to a finding of superiority are:
• the interest of the members of the class in individually controlling the prosecution or defense of separate actions;
• the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
• the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
• the difficulties likely to be encountered in the management of a class action.Id.
Here, there is no indication that potential class members have an interest in individually controlling the prosecution of their own actions. There is no other past or present litigation addressing this incident (although there was a minimal settlement between one passenger and Delta unrelated to any litigation). According to Ms. Butler, "no difficulties in managing the case in this forum have been presented. Because many class members come from Missoula and the class is relatively small and class counsel are well-organized with the home office of lead counsel in Missoula, coordination and management should be relatively efficient." (Pl.'s Mem. in Supp. at 31.) Also, as Judge Wells pointed out, "[b]ased on the number of putative Plaintiffs, the ability of the district court to determine whether Utah law would apply, and the overlap of issues in this case, . . . this class action is manageable." (RR at 16.)
Delta suggests that the "[c]lass litigation will also require dragging 127 unwanting plaintiffs to a potentially foreign jurisdiction to be exposed to intrusive, unwanted discovery into their family lives and medical histories, including depositions, medical record disclosures, and independent medical examinations." (Delta's Objection at 19.) But given the opt-out provision of the 23(b)(3) class action, this "problem" seems avoidable.
Delta speculates that because it has not heard from any other passenger on the flight (other than the one with whom they settled for a sum of less than $1,000), the other passengers are not interested in the litigation at all and do not believe that they have any claim against Delta. According to Delta, "allowing class certification to proceed in this case will simply resurrect stale claims that no passenger but Butler thought significant enough to merit suit." Delta unpersuasively relies on unsubstantiated assumptions to support its argument. There is not enough information in the record to conclude that Delta correctly surmises the reason for lack of claims from other passengers. This is simply too tentative a reason not to certify the class.
The court finds that Judge Wells correctly found that Ms. Butler has satisfied the superiority requirement.
2. Diversity Jurisdiction Issue
Although Delta does not challenge the court's jurisdiction over Ms. Butler's claims, Delta contends that members of the proposed class cannot establish diversity jurisdiction because their claims do not exceed the minimum $75,000 amount in controversy requirement. Delta's challenge is not in the form of a motion to dismiss, although Delta says that if the class is certified, it will file a motion to dismiss based on failure to satisfy the amount in controversy requirement of diversity jurisdiction.
If Delta had challenged the proposed plaintiffs' ability to satisfy the minimum jurisdictional amount in a motion to dismiss (which it could not do earlier because the Plaintiff class had not yet been approved), the Plaintiffs would have the burden of showing "that it does not appear to a legal certainty that [each of the proposed plaintiffs] cannot recover' the jurisdiction amount." Woodmen of the World Life Ins. Soc'y v. Manganaro, 342 F.3d 1213, 1216 (10th Cir. 2003) (emphasis added; internal citation omitted). But, given the current stage of proceedings, Plaintiffs should be given the chance to establish the jurisdictional requirements in a separate proceeding, not in a motion for class certification (where allegations in the complaint are to be taken as true).
ORDER
1. Ms. Butler's motion to strike Delta's Reply Memorandum is GRANTED IN PART and DENIED IN PART. Specifically, the reply memorandum (Dkt. #94) is stricken, because the applicable rules do not allow such an additional pleading when challenging a magistrate's report and recommendation, but Ms. Butler's request for attorneys' fees is denied.
2. Judge Wells reached the correct conclusion that the proposed class should be certified. Accordingly, the court ADOPTS Judge Wells' recommendation that the proposed class be certified. Specifically, the court ORDERS that Plaintiff Patrice Butler is designated as the class representative for the following class: All persons who were passengers on Delta Airline Flight 1267 on March 8, 1998, departing from Salt Lake City, Utah, with the intended destination of Missoula, Montana.
3. Counsel for the parties are to submit to the court within thirty days of the date of this Order a proposed notice to the class.