Opinion
Case No. 2:02-cv-0196
January 08, 2004
REPORT AND RECOMMENDATION REGARDING CLASS ERTIFICATION AND MOTION FOR SANCTIONS
FACTUAL STATEMENT
On March 8, 1998, passengers of Delta Flight 1267 were in route from Salt Lake City to Missoula, Montana when problems with the plane's electrical systems 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 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.
Shortly after landing in Salt Lake City without any major incident, emergency personnel in protective suits boarded the plane and inspected it. Following an inspection of the plane the passengers exited and then returned to Missoula on other flights.
APPLICABLE LAW
Rule 23 of the Federal Rules of Civil Procedure sets forth the requirements for a matter to be certified as a class action. See Fed. R, Civ. P. 23,
Rule 23(a) states four threshold requirements applicable to all class actions: (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").Amchem Products, Inc., et al. v. Windsor et al., 521 U.S. 591, 613, 117 S.Ct. 2231, 2245 (1997). In addition to these prerequisites two additional requirements must be met in this case because Plaintiffs seek class certification under subsection 23(b)(3). These requirements are first, "questions of law or fact common to the members of the class predominate over any questions affecting only individual members," and second, "that a 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 party seeking class certification bears the burden of establishing that certification is proper. See Ditty v. Check Rite, Ltd., Inc., 182 F.R.D. 639, 641 (D. Utah 1998).
Subsection (b)(3) includes a "nonexhaustive list of factors pertinent to a court's `close look' at the predominance and superiority criteria."Amchem Products, 521 U.S. at 615, 117 S. Ct, at 2246. Rule 23(b)(3) states that pertinent matters include:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Fed R. Civ. P. 23(b)(3); see also Ditty, 182 F.R.D. at 644. Although the "interests of individuals in conducting separate lawsuits may be . . . strong" these interests may be outweighed when "`the amounts at stake for individuals [are] so small that separate suits would be impracticable.'"Amchem Products, 521 U.S. at 616, 117 S.Ct. at 2246 (citation omitted). As stated in Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997),
The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor.Id. Additionally, according to rule 23(e) "no class action may be `dismissed or compromised without [court] approval,' preceded by notice to class members." Amchem Products, 521 U.S. at 617, 117 S.Ct. at 2247; (quoting Fed.R.Civ.P. 23(e)).
ANALYSIS
As a preliminary matter, Defendant argues that "Plaintiff has not demonstrated that the members of the putative class have claims approaching in value the federal jurisdictional amount in diversity cases of $75,000." According to 28 U.S.C. § 1332(a)(1) , "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — [c]itizens of different States." Under § 1332
any plaintiff in a diversity class action — whether class representative or putative class member — who does not meet the jurisdictional amount in controversy must be dismissed from the action, and if no plaintiff can meet the amount in controversy, the entire class action must be dismissed.Leonhardt v. Western Sugar Co., 160 F.3d 631, 637-38 (10th Cir. 1998).
"The rule governing dismissal for want of jurisdiction in federal court is that, unless the law provides otherwise, the amount claimed by the plaintiff controls if the claim is apparently made in good faith." Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1183 (10th Cir. 2000);see also St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590 (1938). Dismissal of an action is not justified unless it appears as a "legal certainty that the claim is really for less than the jurisdictional amount." Adams, 225 F.3d at 1183.
In the instant case, Plaintiffs' complaint states that diversity jurisdiction is proper because Plaintiff "is a citizen of the state of Montana, and the total amount in controversy exceeds $75,000, exclusive of costs and interest, as to Plaintiff and as to each unnamed member of the Passenger Class." Plaintiffs' claims for relief included in the complaint include inter alia, negligence, medical monitoring, and per se negligence. Defendant argues that "none of the twenty-one declarants identified special damages, and none of them claim any significant disability." However, based on the passengers' experiences during the flight, their alleged injuries, and the claims for relief asserted in the complaint, the Court finds that the diversity jurisdiction minimum is met and therefore, jurisdiction is proper. See e.g., Pla's Rep. Brief in Support of Class Certification Exhibit PP.
Rule 12(b)(1) allows a court to dismiss a complaint for *lack of jurisdiction over the subject matter." Should the district court determine during the course of this case that members of the class fail to meet the amount in controversy requirement then they can be appropriately dismissed at that time. See Leonhardt v. Western Sugar Co., 160 F.3d 631, 637-38 (10th Cir. 1998).
I. Requirements of Rule 23(a)
A. NumerosityThe first requirement under rule 23 is that "the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). "To satisfy this requirement, the plaintiffs need not show that joinder of all members of the class is impossible, only that it is impracticable."Serfaty et. al v. International Automated Systems. Inc. et. al, 180 F.R.D. 418, 420 (D. Utah 1998). Trial courts often use "common sense assumptions in order to support a finding of numerosity." Id.
In this case, Plaintiffs estimate that "at least 105 of the class members" are unknown and therefore, they cannot be served with process or contacted. Plaintiffs' Reply Mem. In Support Of Class Certification p. 3. There are also approximately 21 other individuals in addition to the lead Plaintiff who provided declarations in support of Plaintiffs' Motion for Class Certification. See Exhibit List for Plaintiffs' Motion for Class Certification.
Based on the large number of both known and unknown class members and common sense, the Court finds that "the putative class is too large for joinder of each member to be practicable." Ditty, 182 F.R.D. at 641;compare Liberty Lincoln Mercury, Inc. v. Ford Mktg. Corp., 149 F.R.D. 65, 74 (D. N.J. 1993) (concluding that 123 members of a putative class were practicable to join because they were "known and readily identifiable by name and address" and "easily subject to service of process and notice,").
Accordingly, the Court finds that the numerosity requirement is met.
B. Commonality
"In order to demonstrate commonality, the plaintiffs must . . . show that there are questions of law or fact common to the class." Ditty, 182 F.R.D. at 642. Based on the record before the Court it is clear that there are common issues of fact and law. All members of the putative class were on the airplane and were exposed for a similar time frame to fumes, smoke, and haze that entered the cabin. Many of these same members also experienced mental trauma and anguish in anticipation of a possible crash or emergency landing. Although there may be some factual variation among class grievances due to the differences in suffering by class members as Defendant points out, the core facts about what caused the suffering, the circumstances that caused it and any possible negligence by Defendant in leading to the suffering are all quite similar. Such similar circumstances give rise to a common nucleus of operative facts and "[a] common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2)."Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). "The fact that there is some factual variation among the class grievances will not defeat a class action." Id. at 1017.
Based on the foregoing, the Court finds that Plaintiffs have shown that there are "questions of law or fact common to the class." Ditty, 182 F.R.D. at 642.
C. Typicality
The next requirement for a matter to be certified as a class action is typicality. "The question of typicality . . . is closely related to the . . . question of commonality." Rosario, 963 F.2d at 1018. Typicality requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). " [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, 963 F.2d at 1018 (quoting De La Fuente v. Stokley-Van Camp. Inc., 713 F.2d 225, 232 (7th Cir. 1983)).
In the instant case, all members of the putative class including the lead Plaintiff, have claims arising from their experiences on Delta Flight 1267. The legal theories regarding Defendant's liability will also be the same as they are based primarily on Defendant's possible negligence in maintaining the aircraft. Defendant argues that "there are wide differences between the claim of Mrs. Butler [lead Plaintiff,] . . . asserting a wide variety and large number of claims and damages, and the rather minor claims of the putative class members on the other." Defendant's argument is inapposite to the typicality requirement as it appears to focus on the severity of the damages and alleged number of possible claims rather than whether they "`arise from the same event [and] are based on the same legal theory.'" Id. (quoting De La Fuente, 713 F.2d at 232). "Where, as here, these two factors favor a finding of typicality, minor factual variations will not defeat the formation of the class." Ditty, 182 F.R.D. at 642.
Therefore, the Court finds that the requirement of typicality is met.
D. Adequacy of Representation
The last requirement under Rule 23(a) is that "the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). Two factors are important in determining whether this requirement is met: "(1) the class attorney's qualifications, experience, and ability to conduct the litigation and (2) whether the named plaintiffs have interests antagonistic to those of the class." Ditty, 182 F.R.D. at 642.
In the Exhibit List for Plaintiffs' Motion for Class Certification are the curriculum vitae for three attorneys of record in this case, William A. Rossbach, Macon Cowles, and Kathryn Collard. All three attorneys have extensive experience as class action attorneys and have represented plaintiff classes on a number of different occasions. See Exhibit List for Plaintiffs' Motion for Class Certification FF, GG, HH. For example, William Rossbach and Macon Cowles were both involved in class action suits regarding the Exxon Valdez oil spill litigation and Kathryn Collard has served as lead or co-counsel in a number of federal civil rights class action cases. The Court finds that these attorneys are well qualified to conduct the litigation before them. The Court further finds that based on the record before it, the named plaintiff, Mrs. Butler, does not have any antagonistic interest or conflict with the other members of the class.
Accordingly, the Court concludes that the Plaintiffs have satisfied all the requirements found in Rule 23(a). See Fed.R.Civ.P. 23(a).
II. Rule 23(b)(3)
"To qualify for certification under Rule 23(b)(3), a class must meet two requirements beyond the Rule 23(a) prerequisites: Common questions must `predominate over any questions affecting only individual members'; and class resolution must be `superior to other available methods for the fair and efficient adjudication of the controversy.'" Amchem Products, 521 U.S. at 615, 117 S.Ct. at 2245-46 (citation omitted).Rule 23(b)(3) contains a "nonexhaustive list" of matters pertinent to a courts findings relating to the "predominance and superiority criteria."Id. They include:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Fed.R.Civ.P. 23(b)(3). The purpose behind these factors is for courts to "`consider the interests of individual members of the class in controlling their own litigations and carrying them on as they see fit.'"Amchem Products, 521 U.S. at 616, 117 S.Ct. at 2246 (citation omitted).
A. Predominance of Common Issues
"The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation."Id. at 623, 117 S.Ct. at 2249, Based on the record before the Court, the putative class in this case appears "sufficiently cohesive" as common issues predominate over any variations among members of the class. Id. Common issues of fact include, but are not limited to, the nature and creation of the fumes, and any possible acts by Defendant that lead to noxious substances being released into the cabin. While individual class members may have experienced differing levels of discomfort or fear because of what transpired, these differences alone do not outweigh the common circumstances that lead to the creation or content of the noxious substances. In similar fashion, the legal issues regarding Defendant and the class outweigh any potential individualized claims that the Court fails to find in this case.
The lead Plaintiff may possibly have some distinct issues regarding damages. However, contrary to Defendant's assertion that this possible difference should prohibit class certification, " [c]lass certification is not properly withheld merely because there may be some variation in damages among members of the plaintiff class." Ditty, 182 F.R.D. at 644;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.").
The cases relied upon by Defendant, Neenan v. Carnival Corp., 199 F.R.D. 372 (D. Florida 2001) and Commonwealth of Puerto Rico. v. The M.V. Emily et al., 158 F.R.D. 9 (D. Puerto Rico. 1994) are different factually than the case at issue. In Neenan, there were over a 1000 passengers that suffered differing "horrible experience[s]" that were not closely related enough to certify the class. Id., 199 F.R.D. at 375. For example, some passengers complained of damaged luggage while others alleged malfunctioning toilets. Id. In the instant case there is not this same type of variety in the passenger complaints. Instead, passenger complaints center around the fumes, smoke, and haze that entered the cabin, and the trauma associated with a possible emergency or crash landing because of these problems with the plane.
In Commonwealth of Puerto Rico, the class consisted of "over tens of thousands of persons." Id., 158 F.R.D. at 11. The court concluded that the facts in Commonwealth closely fit the type of "`mass accident' personal injury tort case that the drafters of Rule 23 identified as generally unsuited for class treatment." Id. at 12 (citation omitted). In the case at issue, there is not the same "`likelihood that significant questions, not only of damages but of liability and defenses to liability, would be present, affecting the individuals in different ways'" as exist in many cases involving mass accidents where courts deny class certification. Id. (citation omitted). In the present action, questions of liability and defenses to liability are likely to be the same among class members and can be proven within a single proceeding.
Based on the "lack of material variation among . . . members of the class" the Court finds that common issues predominate and that the first aspect of Rule 23(b)(3) is met. Ditty, 182 F.R.D. at 644.
B. Superiority of Class Action
The final requirement found in Rule 23(b)(3) is to determine whether "a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b). "Where classwide litigation of common issues will reduce litigation costs and promote greater efficiency, a class action may be superior to other methods of litigation." Valentino v. Carter-Wallace Inc., 97 F.3d 1227, 1234 (9th Cir. 1996).
A review of the four factors found in Rule 23(b) indicates that a class action is superior in this case. See Fed.R.Civ.P. 23(b). First, based on the record before the Court there is no indication that members of the class would be interested in individually controlling the prosecution of separate actions. There is no other litigation pending in this case and the Court is unaware of any prior litigation.
According to Defendant's Memoranda in Opposition to Class Certification the claim of one passenger was previously settled. See Defendants Opp. Memo at 16. Neither party, however, mentions any prior litigation that was settled before this suit was filed.
Second, shortly after departing Salt Lake City International Airport problems arose with the plane. Due to these problems the crew terminated the flight to Missoula, Montana and returned to make an emergency landing in Utah. Therefore, it appears appropriate to hold the litigation in Utah. Defendant argues that a "district judge would face an impossible task of instructing a jury on the relevant law" because putative Plaintiffs reside in different states. The Court disagrees. In diversity cases district courts are required to apply the choice of law provisions of the forum state. See Electrical Distributors, Inc. v. SFR, Inc., 166 F.3d 1074, 1083 (10th Cir. 1999) ("It is well-settled that in `making a choice of law determination, a federal court sitting in diversity must apply the choice of law provisions of the forum state in which it is sitting,'") (quoting Shearson Lehman Bros., Inc. v. M L Inv., 10 F.3d 1510, 1514 (10th Cir. 1993)). Utah applies the "`most significant relationship' approach as described in the Restatement (Second) of Conflict of Laws in determining which state's laws should apply to a given circumstance." Waddoups v. Amalgamated Sugar Co. et al., 54 P.3d 1054, 1059 (Utah 2002). Accordingly, if Utah is selected as the forum state, the district court need only apply the most significant relationship approach in determining whether Utah law would apply to the putative Plaintiffs.See id.
Based 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, the Court finds that this class action is manageable. Any difficulties that may arise in managing this case are likely to be outweighed by the benefit of the efficiency for the courts and the decreased litigation costs by deciding this matter in a single action.
Accordingly, the Court finds that the superiority requirement is met in this case.
Finally, Defendant argues that "almost every court which [h]as considered class certification in the context of an aircraft accident has determined that class certification is not appropriate." The cases Defendant cites in support of this argument are distinguishable from the case at hand because the putative Plaintiffs in this action were not killed in a crash or accident. Defendant's cases support the general proposition that when passengers die in a crash, the next of kin have such a strong interest in controlling the litigation that it outweighs the potential benefits of a class action. See McDonnel Douglas Corp. v. United States District Court for the Central District of California, 523 F.2d 1083, 1087 (9th Cir. 1975) (vacating the district court's certification of a class of individuals consisting of next of kin who filed a wrongful death action).
In Marchesi v. Eastern Airlines. Inc., 68 F.R.D, 500, 501 (D. N.Y. 1975), the court ruled not to certify a class of passengers from "what has been described as the worst single-plane disaster in American History." Id. In the crash 107 passengers and 6 crew members lost their lives. See id. The court cited as support for its decision an excerpt from the Advisory Committee notes when the Rule 23 class action provisions were adopted. The Advisory Committee stated:
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 to liability, would be present, affecting the individuals in different ways. In these circumstances am action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried.Id. (quoting Advisory Committee Notes on Rule 23, 39 F.R.D. 69, 103 (1966)).
In contrast, the passengers on Delta Flight 1267 did not die in an aviation accident. Instead they suffered adverse effects from the release of fumes, smoke, and haze into the cabin. Given the presumed nature of damages and the assertion of common liability, it is unlikely that the litigation in this case will "degenerate in practice into multiple lawsuits [that are] separately tried." Id.
Accordingly, the Court finds that class certification is appropriate in this case for the airline passengers who suffered because of the problems on the plane. Even assuming that class certification were a closer question than the Court finds it to be in this case, the Court points toEsplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968) where the 10th Circuit stated the preference for maintaining a class action. See id. ("[I]f there is to be an error made, let it be in favor and not against the maintenance of the class action, for it is always subject to modification should later developments during the course of the trial so require.").
III. Attorney Fees
The Court also took under advisement Plaintiffs' Motion for Sanctions filed in conjunction with the previously decided Motion to Compel Discovery. See Minute Entry Oct. 9, 2003. Having considered Plaintiffs' motion, the Court denies Plaintiffs' Motion for Sanctions based on Defendant's good faith efforts to comply with the spirit of Rule 26.
RECOMMENDATION FOR CLASS CERTIFICATION AND DENIAL OF MOTION FOR SANCTIONS
Based on the foregoing, IT IS HEREBY RECOMMENDED that the Plaintiff's motion to certify class be GRANTED.
Plaintiffs' Motion for Sanctions is DENIED. Each party is to bear their own costs and attorney fees.
Copies of the foregoing report and recommendation are being mailed to all parties who are hereby notified of their right to object. The parties must file any objection to the Report and Recommendation within ten days after receiving it. Failure to object may constitute a waiver of objections upon subsequent review.