UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 95-31073
Summary Calendar
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IN RE: COMBUSTION
PLAINTIFFS' STEERING COMMITTEE
Plaintiffs-Appellees,
VERSUS
JOHN H. DAY, JR.; FRANKIE S. DAY; JOHN ALAN DAY;
DAVID MARK DAY; SHARON DAY HULGAN; WENDI S. DAY; and
MARTIE S. HUTCHINSON
Movants-Appellants.
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No. 95-31089
Summary Calendar
_____________________________________
IN RE: COMBUSTION
PLAINTIFFS' STEERING COMMITTEE,
Plaintiffs-Appellees,
VERSUS
PATRICK L. TESSIER,
Movant-Appellant.
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_____________________________________
No. 96-30208
Summary Calendar
_____________________________________
IN RE: COMBUSTION
PLAINTIFFS' STEERING COMMITTEE,
Plaintiffs-Appellees,
VERSUS
DIANNE P. COGLEY JOHNSON,
Movant-Appellant.
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_____________________________________
No. 96-30210
Summary Calendar
_____________________________________
IN RE: COMBUSTION
PLAINTIFFS' STEERING COMMITTEE,
Plaintiffs-Appellees,
VERSUS
JOHN J. COGLEY, SR.; JOHN J. COGLEY, JR.,
Movants-Appellants.
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Appeal from the United States District Court
for the Western District of Louisiana
(94-MD-4000)
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November 13, 1996
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
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PER CURIAM:1
John J. Day, Jr., Patrick L. Tessier, Diane P. Cogley Johnson,
and John J. Cogley, Jr., all appeal the district court’s denial of
their requests for permission to file late proof of claims and be
included among the plaintiff class in this case. We affirm the
orders appealed by Mr. Day, Mr. Cogley and Mrs. Johnson. With
regard to Mr. Tessier's appeal, we vacate the district court's
order and remand for further proceedings.
I.
The above appeals all arise out of a mass disaster toxic tort
class action involving a hazardous waste dump site located in
Livingston Parish, Louisiana. The site served as a oil recycling
facility until 1980. It is now the Combustion, Inc. Superfund
site. The class contends that the defendants named in the action
are responsible for numerous damages including serious illnesses
suffered by those exposed to the toxic chemicals and also damage to
the property exposed to those chemicals.
In 1991 the Combustion site class was certified by the state
district court. That same year, the state court ordered notice of
the class and the right to opt out of it be disseminated by mail to
the last known address of all class members and published in the
local newspapers. The deadline for opting out of the class was set
1
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
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for May 1993. In 1993, the action was removed to federal district
court.
In July 1994, the district court ordered all putative class
members to file a proof of claim by December 31, 1994. The forms
were intended to assist the district court in claims evaluation and
trial preparation. The notice advised the putative class members
that failure to meet this deadline constituted waiver of any right
to participate in the litigation. This notice was also
disseminated by mail to last known address of all class members and
published in both local papers. By December 31, over 13,000
claimants had filed their proof of claim forms. In July of 1995
the district court approved a preliminary settlement agreement
between the class and some of the defendants. The court ordered a
September 1995 fairness hearing be held to consider the preliminary
settlement. The court further ordered that all class members who
had failed to timely file a proof of claim notify the court in
writing of their intention to appear at the fairness hearing and
show good cause for why they should be allowed to file a late proof
of claim and take part in the litigation. Appellants all appeared
at the hearing and were given an opportunity to justify their late
filing. The district court denied all of the appellants' requests
to file late claims and these appeals followed.
I.
A.
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Johnson and Cogley argue that they were misled by the notice
informing them of the need to file a proof of claim. They argue
that they reasonably interpreted the notice as limiting eligible
filers to current property owners or residents of Livingston
Parish. The order is clearly not so limited and the district court
correctly rejected this argument.
As to Mr. Day,2 he argues that he did not timely file because
he feared retaliation by his employer. He produced no evidence
tending to substantiate his fear and the district court was
entitled to reject this excuse as good cause to file a late proof
of claim. We have considered the other arguments made by Mr. Day,
and find them meritless.
B.
We now turn to Mr. Tessier’s appeal. In response to the
district court’s order regarding late proof of claim requests, Mr.
Tessier informed the district court by letter that he is a land
owner who qualifies as a class member3 and that he had not received
2
Day's brief lists seven members of the Day family as
appellants. However, we treat the brief as being submitted only on
behalf of John H. Day, Jr. because only John, Jr. signed the brief.
Parties appearing pro se must sign the documents they file. See
Local Rule 28.6; Robinson v. National Cash Register Co., 808 F.2d
1119, 1128 (5th Cir. 1987)(stating “a party appearing pro se must
sign the documents he files”).
3
Class members include “all persons or entities who or which
own real or personal property and/or live and/or operate places of
business . . . in Livingston Parish, Louisiana . . . .”
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any notification of the suit until contacted after the December
deadline by an appraiser hired by one of the plaintiff attorneys:
Despite the fact that for more than 20 years I have owned over
100 acres of land less than one-quarter mile downstream form
the pollution source, no person notice was sent to me
regarding this lawsuit. I understand that notice was given in
the newspapers, but I have not seen any notices in the
Advocate. I do not read any newspapers from Livingston
Parish.
Mr. Tessier also attached a map of Livingston Parish that shows the
location of his property in relation to the Superfund site. The
court acknowledged receipt of this letter and instructed Mr.
Tessier to appear before the court on September 27, 1995.
At the hearing, Mr. Tessier stated that “his name and address
are readily ascertainable and [that] due process requires personal
notice when addresses are readily ascertainable through the public
records.” The court disagreed without discussion and issued an
order dismissing the request and stating “this Court found that
notice was reasonable and adequate in compliance with due process
requirements . . . .”
Federal Rule of Civil Procedure 23(c)(2) provides “[i]n any
class action maintained under subdivision (b)(3), the court shall
direct to the members of the class the best notice practicable
under the circumstances, including individual notice to all members
who can be identified through reasonable effort . . . .” FED. R.
CIV. P. 23(c)(2). In Eisen v. Charlisle & Jacquelin, the Supreme
Court held “the import of this language is unmistakable.
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Individual notice must be sent to all class members whose names and
addresses may be ascertained through reasonable effort.” Eisen,
471 U.S. at 173; See also In re Nissan Motor Corp. Antitrust
Litigation, 552 F.2d 1088, 1097 (5th Cir. 1977)(stating that
publication is not a substitute for personal notice if the
individual’s name and address were ascertainable through reasonable
efforts).
Mr. Tessier argues that his name and address were readily
discernable from the public records of Livingston Parish. If
reasonable effort would have uncovered his name and address, Mr.
Tessier did not receive the personal notification to which he is
entitled. Moreover, if he did not receive personal notification to
which he is entitled, this amounts to good cause for not filing a
timely proof of claim. Because it is not clear from the district
court’s order that the Eisen standard was applied or whether
reasonable effort would have uncovered Mr. Tessier’s name and
address, we remand this case to the district court to make such a
determination and for further proceedings. Specifically, the
district court’s inquiry should be whether reasonable effort would
have included a search of any public records that contain Mr.
Tessier’s name and address. If so, Mr. Tessier should be permitted
to file a late proof of claim and take part in the litigation.
III.
For the reasons stated above, we affirm the district court's
order denying Mr. Johnson, Mrs. Cogley and Mr. Day's requests to
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file late claims. However we vacate the order denying Mr.
Tessier's request and remand this case to the district court for
further proceedings.
AFFIRMED, VACATED and REMANDED.
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