In the United States Court of Federal Claims
No. 13-838L
(Filed: April 4, 2014)
)
STEPHANIE S. TURNER, et al., )
)
Plaintiffs, ) Rails-to-Trails; Class Action Denial;
) Lack of Superiority; Opportunity to
v. ) Join Prior Class Action Arising from
) Same NITU
THE UNITED STATES, )
)
Defendant. )
)
ORDER DENYING CLASS CERTIFICATION
Pending before the court is plaintiff’s motion to certify the above-captioned case as a
class action pursuant to Rule 23 of the Rules of the United States Court of Federal Claims
(“RCFC”). Plaintiff argues that a potential class of approximately 80 plaintiffs exists and
that class certification is the most effective method to bring those potential plaintiffs into the
litigation without any detrimental effect on the United States. In response, the United States
(“the government”) argues that the potential plaintiffs received notice to join class actions in
two predecessor cases, leaving few potential plaintiffs who are actually likely to join the
litigation and none who have not already received adequate notice. For the reasons
discussed below, the plaintiff’s motion is DENIED.
I. BACKGROUND
This case involves a recreational trail located between Memphis and Cordova in
Shelby County, Tennessee. On October 26, 2007, the Surface Transportation Board
(“STB”) issued a Notice of Interim Trail Use (“NITU”) for a 13.34-mile railroad corridor.
Counsel for plaintiffs have previously filed two cases regarding this corridor, Thomas v.
United States, No. 10-54, and Lambert v. United States, No. 12-395. The legal and factual
background of this case is discussed in the court’s August 29, 2012 opinion and order in
Thomas and will not be repeated here. Thomas v. United States, No. 10-54 (Fed. Cl. August
29, 2012).
Plaintiffs filed the present case on October 25, 2013, exactly one day before the six-
year statute of limitations would have run under 28 U.S.C. § 2501. Following briefing, oral
argument was held on March 10, 2014.
II. STANDARD OF REVIEW
In this court, the rules governing class actions are set forth in RCFC 23. That rule
states:
(a) Prerequisites. One or more members of a class may sue as representative
parties on behalf of all members 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 parties will fairly and adequately protect the
interests of the class.
(b) Class Actions Maintainable. A class action may be maintained if RCFC
23(a) is satisfied and if:
(1) [not used];
(2) the United States has acted or refused to act on grounds generally
applicable to the class; and
(3) the court finds 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. The matters
pertinent to these findings include:
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(A) the class members’ interests in individually controlling the
prosecution of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by class members;
(C) [not used]; and
(D) the likely difficulties in managing a class action.
RCFC 23(a)-(b). Under this rule, the requirements for a class action fall into five categories,
all of which must be satisfied: (1) numerosity of plaintiffs, (2) commonality of questions of
law or fact, (3) typicality of the representative parties’ claims, (4) adequacy of the
representative parties to fairly represent the class, and (5) superiority of the class action as
the fairest and most efficient means of resolving the case. Barnes v. United States, 68 Fed.
Cl. 492 (2005).
In considering a motion for class certification, a trial court is required to perform “a
rigorous analysis” before determining that certification is proper, which may involve “some
overlap with the merits of the plaintiff’s underlying claim.” Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541, 2551 (2011) (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147,
160-61 (1982)). This is because “[t]he class action is ‘an exception to the usual rule that
litigation is conducted by and on behalf of the individual named parties only.’” Id. at 2550
(quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). It is the party seeking class
certification that bears the burden of proving by a preponderance of the evidence that each
of the five requirements is satisfied. See Geneva Rock Prods., Inc. v. United States, 100
Fed. Cl. 778, 782 (2011) (citing Filosa v. United States, 70 Fed. Cl. 609, 615 (2006)).
III. DISCUSSION
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The issues facing the court are whether plaintiffs satisfy the numerosity and
superiority requirements of RCFC 23. There is no dispute between the parties that the
plaintiffs have satisfied the commonality, typicality, and adequacy requirements.
As discussed above, in order to demonstrate numerosity, plaintiffs must show that the
class is “so numerous that joinder of all members is impracticable.” RCFC 23(a)(1). This
analysis includes several factors, such as “the number of class members, the location of the
members of the proposed class, the size of the individual claims, and the nature of the
action.” King v. United States, 84 Fed. Cl. 120, 123-24 (2008) (citing 7A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1762 (3d ed.
2005)).
In order to demonstrate superiority, plaintiffs must show that “a class action would
achieve economies of time, effort, and expense, and promote uniformity . . . without
sacrificing procedural fairness or bringing about other undesirable results.” Barnes, 68 Fed.
Cl. at 499 (quoting Fed. R. Civ. P. 23, Advisory Committee Notes (1966)).
Plaintiffs argue that the class consists of 80 potential members encompassing 85
individual parcels abutting or underlying the railroad right-of-way. Plaintiffs further argue
that, although the parcels are all along a 13.34-mile strip, the potential class members are
dispersed throughout ten states. Additionally, plaintiffs argue that the size of the claims are
such that some individual claims may not be pursued separately due to the costs of
litigation. Concerning superiority, plaintiffs argue that certification as a class is superior
because it will allow the court to achieve economies of time, effort, and expense while
eliminating inconsistent adjudications.
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In response, the government argues that joinder of the parties is very practicable in
this case, obviating the need for class certification. Concerning numerosity, the government
argues that plaintiffs have identified all potential class members and, through notices made
for the classes in Thomas and Lambert, all potential class members have received some
form of notice in prior cases. The government does not dispute the number of potential
class members, but rather argues that the fact that all potential class members have already
received at least one opportunity to join a class in either Thomas or Lambert demonstrates
that the class is unlikely to contain many of the potential class members. Concerning
superiority, the government similarly argues that the notice made in the previous two cases
defeats any benefit that would otherwise be gained from class certification in this case.
Indeed, the government argues that the opposite is true in this case: because notice has
already been made, certifying a class in this case would impose significant burdens on the
court and the government without providing a benefit to the potential class members.
The court agrees with the government. For the reasons below, plaintiffs have failed
to demonstrate that they meet the numerosity or superiority requirements for class
certification.
First, plaintiffs have already identified all potential class members. In its motion,
plaintiffs include a list of those potential class members, containing a mailing address for
each one. Plaintiffs argue that class action status will allow them to provide notice to
further potential plaintiffs. In response, the government argues that all potential class
members have previously received notice in Thomas and Lambert, noting that all but 15
received mailed notices, while the remaining 15 presumably received notice by publication.
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The government also argues that plaintiffs’ counsel has already spent a significant amount
of time soliciting clients, indicating that there would be no benefit to further notice. Indeed,
plaintiffs’ counsel admits that he has been in contact with the potential class members in this
case. The court agrees with the government. Plaintiffs have not demonstrated that
certifying a class for the purpose of providing notice to potential plaintiffs is not redundant
on the grounds that all potential plaintiffs have received notice in prior cases and have had
previous opportunities to join a class covering this same trail. As a result, the court sees no
reason to authorize a third class action concerning this NITU.
Second, concerning superiority, because the threshold issues of liability for this trail
have already been resolved in Thomas and Lambert, class certification would provide no
economies of time, effort, or expense. For each of the plaintiffs that have joined this case,
the court must determine liability and just compensation with a factual analysis that is
unique to each individual claim.
IV. CONCLUSION
As the court has determined that plaintiffs have failed to demonstrate numerosity or
superiority, plaintiffs’ motion for class certification is hereby DENIED.
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Judge
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