Opinion
6:21-cv-00663-MK
03-14-2023
MILES HART; and ELIZABETH TANENBAUM, on behalf of themselves and all others similarly situated, Plaintiffs, v. J.H. BAXTER & CO., INC.; J.H. BAXTER & CO., a California limited partnership; and GEORGIA BAXTER-KRAUSE, individually, Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, UNITED STATES MAGISTRATE JUDGE.
Plaintiffs Miles Hart and Elizabeth Tanenbaum (“Plaintiffs”) bring this putative class action on behalf of themselves and all others similarly situated against Defendants J.H. Baxter & Co., Inc., J.H. Baxter & Co., and Georgia Baxter-Krause (“Defendants”) based on alleged “fugitive contaminates and noxious odors” from Defendants' wood treatment facility. Am. Compl. ¶¶ 1-2, ECF No. 51.
Before the Court is Plaintiffs' Motion for Class Certification. For the following reasons, the Court should GRANT Plaintiffs' Motion for Class Certification.
BACKGROUND
Defendants J.H. Baxter & Co., Inc., J.H. Baxter & Co allegedly own and operate a wood preserving facility (“the Facility”) in Eugene, Oregon. Am. Comp. ¶¶ 6-7, 11, ECF No. 51. Defendant Georgia Baxter-Krause is an individual who Plaintiffs allege “exercised exclusive control over the financial and operational aspects of the business at the Facility. Id. ¶¶ 12-14. Plaintiffs allege individually and on behalf of the putative class that various chemical byproducts from the Facility have invaded their “groundwater, soil, properties, and persons.” Id. ¶¶ 17-21. They allege trespass, private nuisance, public nuisance, negligence, and gross negligence claims against Defendants. Id. at ¶¶ 67-115.
The named Plaintiffs are homeowners residing nearby the Facility and alleging impacts on themselves and their use and enjoyment of their properties. Id. ¶¶ 4-5, 28-29. Plaintiffs now seek class certification consisting of two subclasses for claims dating back to April 30, 2019:
Subclass A: All owner/occupants and renters of residential property located within the area bordered on the west by Randy Pape Beltline/highway 596, on the north by Royal Ave, on the east by Bethel Dr, and on the south by Roosevelt Blvd whose properties have been contaminated with substances consistent with those emitted from the Facility, as established by independent testing at the time of final settlement approval or trial; and
Subclass B: All owner/occupants and renters of residential property situated within one and one half (1.5) miles of the Facility's property boundary.Pl.'s Mot. 8, ECF No. 52. Plaintiffs also request that the Court appoint Plaintiffs' counsel as class counsel. Id. at 2. Defendants do not oppose the Motion. Sheets Decl. ¶ 17, ECF No. 52-2.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 23 governs class certification. “The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (internal quotation marks omitted). A party seeking class certification must satisfy each of the four prerequisites of Fed.R.Civ.P. 23(a) and at least one requirement of the provisions of Fed.R.Civ.P. 23(b).
Under Fed.R.Civ.P. 23(a), a district court may certify a class 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 will fairly and adequately protect the interests of the class.Fed. R. Civ. P. 23(a). In other words, the proposed class must satisfy the prerequisites of numerosity, commonality, typicality, and adequacy of representation. Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir. 2012). Fed.R.Civ.P. 23 sets forth more than a “mere pleading standard.” Wal-Mart, 564 U.S. at 350. A party seeking class certification “has the burden of affirmatively demonstrating” that each requirement of Fed.R.Civ.P. 23(a) is satisfied. Mazza, 666 F.3d at 588. That is, the movant must be “prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart, 564 U.S. at 350 (emphasis in original).
After showing that each of the Fed.R.Civ.P. 23(a) prerequisites is satisfied, the party seeking class certification must then establish “through evidentiary proof at least one of the provisions of [Fed. R. Civ. P. 23(b)].” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). As relevant here, Rule 23(b)(3) requires a court to find that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” This analysis, in accord with Rule 23's “principal purpose” of “promot[ing] efficiency and economy of litigation,” inquires into “the relationship between the common and individual issues in the case, and tests whether the proposed class is sufficiently cohesive to warrant adjudication by representation.” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 96364 (9th Cir. 2013) (quotation marks omitted). The focus of this inquiry, however, is on “questions common to the class”-plaintiffs need not, at this threshold, “prove that the predominating question[s] will be answered in their favor.” Amgen Inc. v. Conn. Ret. Plans & Tr.Funds, 568 U.S. 455, 459, 468 (2013) (emphasis in original).
DISCUSSION
I. Rule 23(a)
For the reasons set forth below, the Court finds that Plaintiffs have satisfied each of the four requirements under Rule 23(a).
A. Numerosity
Rule 23(a)(1) requires Plaintiffs to demonstrate that the proposed class “is so numerous that joinder of all members is impracticable.” Rule 23(a)(1) provides no bright-line test or minimum number of class members necessary to meet the numerosity requirement; instead, the court must evaluate the specific facts of each case. Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980). In general, classes of 15 members or fewer are too small, and classes of 16 to 39 members may or may not be sufficiently numerous, depending on the facts of the case. See id.; Moore's Federal Practice § 23-05 (2d ed. 1987). In this district, there is a “rough rule of thumb” that 40 class members is sufficient to meet the numerosity requirement. Giles v. St.Charles Health Sys., Inc., 294 F.R.D. 585, 590 (D. Or. 2013); see also 1 McLaughlin on ClassActions § 4:5 (14th ed.) (“The rule of thumb adopted by most courts is that proposed classes in excess of 40 generally satisfy the numerosity requirement”).
Here, Plaintiffs show there are nearly 5,860 residences in the class area, including 260 households that have specifically documented impact of Facility odors. See Roman Aff. ¶ 6, ECF Nos. 52-1; Sheets Aff. ¶ 11, ECF No. 52-2. This is well over the 40 members that is the “rough rule of thumb” in this district. SeeGiles, 294 F.R.D. at 590. Thus, the Court finds that the class is sufficiently numerous to satisfy the numerosity requirement.
Relatedly, the Court also finds that the class is sufficiently identifiable and ascertainable based on the report of Plaintiffs' expert Dr. Cal's report, ECF No. 52-4 (“Cal Report”). See Ott v.Mortg. Invs. Corp. of Ohio, 65 F.Supp.3d 1046, 1064 (D. Or. 2014) (noting that ascertainability is an implicit requirement of a proposed class under Rule 23).
B. Commonality
Rule 23(a)(2) states that class certification is appropriate only when the case presents “questions of law or fact common to the class.” To satisfy the commonality requirement, Plaintiffs must show that the class members suffered the “same injury,” meaning that their claims depend upon a “common contention.” Wal-Mart, 564 U.S. at 350 (quotation marks omitted). “That common contention, moreover, must be of such a nature that it is capable of classwide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” id. But class members need not have every issue in common; commonality requires only “a single significant question of law or fact” in common. Mazza, 666 at 589; see also Wal-Mart, 564 U.S. at 359.
Here, Plaintiffs' Complaint identifies numerous questions of law and fact that are common to the class members, including:
a) Whether and how the Defendants wrongfully, intentionally, knowingly, recklessly, negligently, and/or grossly failed to construct, operate, and maintain the Facility;
b) Whether the Defendants owed any duties to the Class Members;
c) Which duties the Defendants owed to the Class Members;
d) Which steps the Defendants have and have not taken to control the escape of contaminates and noxious odors from the Facility;
e) Whether the Defendants met the standard of care with respect to their design, operation, and maintenance of the Facility;
f) Whether and to what extent the Facility's fugitive contaminates and noxious odors were dispersed over the Class Area;
g) Whether it was reasonably foreseeable that the Defendants' failure to properly design, operate, and maintain the Facility would result in an invasion of the Class Members' property interests;
h) Whether the degree of harm suffered by the Class Members constitutes a substantial annoyance or interference with their use and enjoyment of their properties; and i) The proper measure of damages incurred by the Class Members.Am. Compl. ¶ 58, ECF No. 51.
As Plaintiffs correctly note, there are many class-wide legal determinations that will require common evidence and involve common legal issues. See Pl.'s Mot 9-10, ECF No. 52. Under these circumstances, the Court finds that Plaintiffs have met the commonality requirement.
C. Typicality
In order to meet the typicality requirement, Plaintiffs must show that the named parties' claims or defenses are typical of the claims or defenses of the class. Fed.R.Civ.P. 23(a)(3). Under the “permissive standards” of Rule 23(a)(3), the “representative's claims are ‘typical' if they are reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). “The purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). To determine whether claims and defenses are typical, courts look to “whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010), quoting Hanon., 976 F.2d at 508.
Here, Plaintiffs have demonstrated that the named Plaintiffs' claims and defenses are typical. Based on the Complaint, they claim the same type of damages based on the same conduct by Defendants as compared to the putative class. Am. Compl. ¶¶ 61-63, ECF No. 51. There is no evidence that any unique injury or defenses apply to the named Plaintiffs that would not apply to the class members. Accordingly, the Court finds that Plaintiffs have satisfied the typicality requirement.
D. Adequacy of Representation
Rule 23(a)(4) states that before a class can be certified, a court must find that “the representative parties will fairly and adequately protect the interests of the class.” This requirement turns on two questions: (1) whether “the named plaintiffs and their counsel have any conflicts of interest with other class members”; and (2) whether “the named plaintiffs and their counsel [will] prosecute the action vigorously on behalf of the class.” Hanlon, 150 F.3d at 1020 . The adequacy requirement is based on principles of constitutional due process; a court cannot bind absent class members if class representation is inadequate. Hansberry v. Lee, 311 U.S. 32, 42
Here, there is no evidence that the named plaintiffs or their counsel have any conflicts with the other class members. Sheets Decl. ¶ 14, ECF No. 52-2. Instead, Plaintiffs' counsel notes that the named Plaintiffs have been “knowledgeable, proactive, and effective” as class representatives.” Id. at ¶ 13.
In addition, Plaintiffs' counsels' experience in similar cases establishes the adequacy of their representation. See, e.g. Averett v. Metalworking Lubricants Co., No. 115CV01509JMSMPB, 2017 WL 4284748 (S.D. Ind. Sept. 27, 2017); ECF No. 52-5. Plaintiffs Counsel has experience prosecuting class actions, has devoted time to investigating Plaintiffs' claims, and has the resources necessary to represent the class. Sheets Decl. ¶¶ 7-12, ECF No. 522. The Court finds that Plaintiffs' representation is adequate.
II. Rule 23(b)(3)
For the reasons set forth below, the Court also finds that questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” See Fed.R.Civ.P. 23(b)(3).
A. Predominance
“[T]here is substantial overlap between” the test for commonality under Rule 23(a)(2) and the predominance test under 23(b)(3). Wolin, 617 F.3d at 1172. The predominance test, however, “is ‘far more demanding,' and asks ‘whether proposed classes are sufficiently cohesive to warrant adjudication by representation.'” id. (quoting Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997)). To determine whether common questions predominate, the Court begins with “the elements of the underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011).
As already addressed earlier in this opinion, Plaintiffs have met the commonality requirement given the common questions of law and fact between class members. The Court additionally finds that these common questions of law and fact predominate over any individual issues in the case. Other courts have recognized that “common issues predominate in air pollution cases when the paramount issue concerns whether a plant's emissions are substantially interfering with the local residents' use and enjoyment of their real and personal property.” Stanley v. U.S. Steel Co., No. 04-74654, 2006 WL 724569, at *7 (E.D. Mich. Mar. 17, 2006); see also Ponca Tribe of Indians of Oklahoma v. Cont'l Carbon Co., No. CIV-05-445-C, 2008 WL 11338389, *5 (W.D. Okla. July 1, 2008) (collecting cases finding common issues predominate in pollution cases).
Here, Plaintiffs intend to put on expert evidence on the issues of the extent, severity, and frequency of the alleged emissions in the class area, evidence which applies to the class as a whole. Cal Report, ECF No. 52-4. Plaintiffs intend to use this evidence to establish liability on a class-wide basis for each claim. Pl.'s Mot. 13-15., ECF No. 52. The Court has reviewed Plaintiffs' expert's report and finds that the common evidence Plaintiffs intend to use to show class-wide liability establishes that such questions predominate over individual issues in the case.
While the issue of damages may be individualized, that is not fatal to class certification when it is clear that liability can be determined on a class-wide basis. See Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013). Moreover, Plaintiffs have already created subclasses to address differing damages, and additional subclasses may be created as necessary. Because Plaintiffs have provided sufficient evidence that liability issues can be evaluated classwide, the Court finds that Plaintiffs have met the predominance requirement of Rule 23(b)(3).
B. Superiority
Rule 23(b)(3)'s superiority requirement tests whether “classwide litigation of common issues will reduce litigation costs and promote greater efficiency.” Valentino v. Carter-Wallace,Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). To make this determination, a court looks to “whether the objectives of the particular class action procedure will be achieved in the particular case.” Hanlon, 150 F.3d at 1023. In turn, this inquiry “necessarily involves a comparative evaluation of alternative mechanisms of dispute resolution.” id. The Ninth Circuit recognizes that “[d]istrict courts are in the best position to consider the most fair and efficient procedure for conducting any given litigation, and so must be given wide discretion to evaluate superiority.” Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010) (quotation marks and citation omitted). Relating to superiority, the purpose of Rule 23(b)(3) is “to allow integration of numerous small individual claims into a single powerful unit.” id. at 722. This allows plaintiffs that otherwise likely would be “unable to proceed as individuals because of the disparity between their litigation costs and what they hope to recover.... ‘to pool claims which would be uneconomical to litigate individually.'” Local Joint Exec. Bd. of Culinary/Bartender Tr. Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1163 (9th Cir. 2001) (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985)).
Rule 23(b)(3) provides four non-exhaustive factors for courts to consider. These factors are:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.Fed. R. Civ. P. 23(b)(3).
Based on the above factors, for the reasons set forth in Plaintiffs' unopposed motion, the Court finds that class-wide litigation of common issues will reduce costs and promote efficiency such that a class action is superior to other available methods of adjudication. See Pl.'s Mot. 1517, ECF No. 52.
III. Appointment of Counsel
Rule 23(g) provides that a court certifying a class must appoint class counsel. The Court has considered the factors required under Rule 23(g)(1)(A), and-for the same reasons explained in section I.D. of this opinion-finds that appointment of Plaintiffs' counsel as class counsel in this case satisfies the requirements of Rule 23(g).
RECOMMENDATION
For the above reasons, Plaintiffs' Motion for Class Certification (ECF No. 52) should be GRANTED. The subclasses should be defined as follows:
Subclass A: All owner/occupants and renters of residential property located within the area bordered on the west by Randy Pape Beltline/highway 596, on the north by Royal Ave, on the east by Bethel Dr, and on the south by Roosevelt Blvd whose properties have been contaminated with substances consistent with those emitted from the Facility, as established by independent testing at the time of final settlement approval or trial; and
Subclass B: All owner/occupants and renters of residential property situated within one and one half (1.5) miles of the Facility's property boundary.Plaintiffs' counsel should be appointed as class counsel.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).