Case Information
*1 In the United States Court of Federal Claims No. 15-1297C
(Filed: May 27, 2016)
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DOUGLAS G. BROWN et al., For *
Themselves and As Representative of a *
Class of Similarly Situated Persons, *
* Rails-to-Trails; Motion to Certify a Class Plaintiffs, * Action; Failure to Satisfy All Requirements * of RCFC 23; Joinder Not Impracticable; v. * Wal-Mart Stores, Inc.
*
THE UNITED STATES, *
*
Defendant. *
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J. Robert Sears, St. Louis, MO, for plaintiffs.
Joanna K. Brinkman, United States Department of Justice, Washington, DC, for defendant. OPINION AND ORDER SWEENEY , Judge
In this Rails-to-Trails case, plaintiffs own real property in Cleveland County, North Carolina, adjacent to a railroad right-of-way. They contend that the United States, by authorizing the conversion of the railroad right-of-way into a recreational trail pursuant to the National Trail Systems Act (“Trails Act”), took their property without paying just compensation in violation of the Fifth Amendment to the United States Constitution. Plaintiffs bring suit in this court on behalf of themselves and those similarly situated, and now move to certify the case as a class action. For the reasons set forth below, the court denies plaintiffs’ motion.
I. BACKGROUND
The Trails Act, as amended, provides for the preservation of “established railroad rights- of-way for future reactivation of rail service” by authorizing the interim use of such rights-of-way as recreational and historical trails. 16 U.S.C. § 1247 (2012). This process is referred to as “railbanking,” and is overseen by the Surface Transportation Board (“Board”), id., the federal *2 agency with the exclusive jurisdiction to regulate “the construction, acquisition, operation, abandonment, or discontinuance” of most railroad lines in the United States, 49 U.S.C. § 10501(b) (2012).
Before railbanking can occur, the railroad company must seek to abandon its line, either by initiating abandonment proceedings with the Board pursuant to 49 U.S.C. § 10903, or by requesting that the Board exempt it from such proceedings pursuant to 49 U.S.C. § 10502. While considering the railroad company’s abandonment application or exemption request, the Board will entertain protests and comments from interested third parties, including requests from interested third parties for the interim use of the railroad line as a trail pursuant to 16 U.S.C. § 1247(d). 49 C.F.R. §§ 1152.25, 1152.29(a) (2014).
If an interested third party submits a trail use request to the Board that satisfies the requirements of 16 U.S.C. § 1247(d), the Board makes the necessary findings pursuant to 49 U.S.C. § 10502(a), and the railroad company agrees to negotiate a trail use agreement, the Board will issue a Notice of Interim Trail Use or Abandonment (“NITU”). Id. § 1152.29(b), (d). The effect of the NITU is to “[p]ermit the railroad to discontinue service, cancel any applicable tariffs, and salvage track and materials, consistent with interim trail use and rail banking . . . ; and permit the railroad to fully abandon the line if no agreement is reached 180 days after the NITU is issued, subject to appropriate conditions . . . .” Id. § 1152.29(d)(1). The Board will entertain requests to extend the 180-day deadline to enable further negotiations. If the railroad company and the interested third party execute a trail use agreement, then abandonment of the railroad line is stayed for the duration of the agreement. Id. § 1152.29(d); 16 U.S.C. § 1247(d). If no trail use agreement is executed, the railroad company is permitted to fully abandon the line. 49 C.F.R. § 1152.29(d). If the railroad company notifies the Board that it has fully abandoned the line, see id. § 1152.29(e)(2), the Board is divested of jurisdiction over the abandoned railroad line and “state law reversionary property interests, if any, take effect.” Caldwell v. United States, 391 F.3d 1226, 1228-29 (Fed. Cir. 2004).
On August 4, 2015, the Board issued a NITU pertaining to four segments of a railroad right-of-way in North Carolina over which Norfolk Southern Railroad Company (“Norfolk Southern”) formerly operated its railroad. These four segments are situated between milepost SB 144.55 and milepost SB 154.59, between milepost SB 158.10 and milepost SB 160.00, between milepost SF 384.6 and milepost SF 407.4, and between milepost SB 144.55 and milepost SB 141.35.
Three days after the Board issued the NITU, four individuals–Otis Mull Meacham, Montrose Meacham Ballard, Charles Jr. Shivers, and Rhonda K. Shivers–filed suit in this court alleging that the NITU effected a taking under the Fifth Amendment for which they were not paid just compensation. The case was captioned Meacham v. United States, No. 15-843L. An amended complaint was filed the following month; several plaintiffs were added to the suit and the caption of the case changed to Brooks v. United States, No. 15-843L. In November 2015, as publicized in an article appearing in the local newspaper, the attorney representing the plaintiffs in Brooks held two town hall meetings to explain the suit to potentially affected residents. A second article, published two days later, included the attorney’s website address for those who *3 wanted additional information regarding the suit. Eventually, on February 9, 2016, a second amended complaint was filed in Brooks that named 151 plaintiffs.
In the meantime, on November 2, 2015, four individuals filed the instant suit, on behalf of themselves and other similarly situated individuals, contending that the August 4, 2015 NITU effected a taking of their property for which they were not paid just compensation in violation of the Fifth Amendment. Fourteen additional plaintiffs were named in a February 23, 2016 amended complaint and two additional plaintiffs were named in a May 19, 2016 second amended complaint. In their second amended complaint, plaintiffs allege that Norfolk Southern owned an easement for railroad purposes underlying the four segments of the railroad right-of-way covered by the NITU; claim that Norfolk Southern’s easement lay across their property; and identify the specific parcels of land encumbered by the purported easement, each of which is located in Cleveland County, North Carolina. In addition, plaintiffs’ attorney asserts via affidavit that Norfolk Southern acquired its easement via condemnation, prescription, and right-of-way deeds, and that the deeds “are all of the same type and have the same or very similar operative language.” Pls.’ Ex. A ¶ 16.
Plaintiffs now move to certify the case as a class action pursuant to Rule 23 of the Rules of the United States Court of Federal Claims (“RCFC”), defining the proposed class as:
All persons who on August 4, 2015, owned an interest in lands constituting part of the railroad corridor or right-of-way on which a rail line was formerly operated by Norfolk Southern Railway Company (NSR), from milepost SB 144.55 to milepost SB 154.50 and from milepost SB 158.10 to milepost [SB] 160.00, in Cleveland County, North Carolina, and who claim a taking of their rights to possession, control and enjoyment of such lands due to the operation of the “rail banking” provisions of the National Trails System Act (“NTSA”), 16 U.S.C. § 1247(d). Excluded from this Class are the owners of land that abut segments of the subject right-of-way that the railroad acquired fee simple to; railroad companies and their successors in interest; [and] persons who have elected to pursue their claims in separate lawsuits against the United States for compensation for the same interests in land.
Pls.’ Mot. 1. The parties have fully briefed the motion and the court deems oral argument unnecessary.
II. DISCUSSION
RCFC 23 describes the requirements for maintaining a class action in the United States Court of Federal Claims (“Court of Federal Claims”):
(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: (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) (alterations in original). In other words, a putative class representative must
demonstrate: (i) numerosity–that the proposed class is so large that joinder is impracticable; (ii)
commonality–that there are common questions of law or fact that predominate over questions
affecting individual prospective class members and that the government has treated the
prospective class members similarly; (iii) typicality–that his or her claims are typical of the
proposed class; (iv) adequacy–that he or she will fairly represent the proposed class; and (v)
superiority–that a class action is the fairest and most efficient method of resolving the suit.
Toscano v. United States,
Plaintiffs contend that they have satisfied all of the requirements of RCFC 23, while defendant asserts that plaintiffs have not satisfied the numerosity, commonality, typicality, and superiority requirements. As explained below, the court concludes that the proposed class fails to completely satisfy any of the rule’s requirements.
A. Numerosity
To prevail on their motion to certify a class action, plaintiffs must first satisfy the
numerosity requirement. RCFC 23(a)(1) specifies that a class action is appropriate only if “the
class is so numerous that joinder of all members is impracticable[.]” “‘Impracticable does not
mean impossible.’” Jaynes v. United States,
The number of potential class members is considered to be the most important factor of
the numerosity requirement. King,
Defendant’s contentions are more persuasive. It defies common sense to contend, as plaintiffs do, that it is impracticable for 156 claimants to proceed through joinder when, in a case involving the same railroad right-of-way and the same NITU, 151 claimants are, in fact, proceeding through joinder. Indeed, the fact that there are 151 plaintiffs in Brooks demonstrates that a 156-member class is not large enough to create a presumption that joinder is impracticable. [3] Additionally, the failure of all 307 potential claimants to join the Brooks suit reflects only that some potential claimants did not want to pursue a claim; the failure has no bearing on whether joinder is impracticable. Further, although plaintiffs are correct that class actions and joinder suits regarding the same railroad right-of-way and NITU have coexisted in this court on prior occasions, they ignore the salient fact that in all of the examples they cited, the class action was filed first; there was no preexisting joinder suit that might demonstrate that proceeding by joinder was practicable. [4] In short, plaintiffs have failed to demonstrate that the *7 number of members in their proposed class is a factor that weighs in their favor. Although the number of potential class members is the most important factor in the numerosity inquiry, the court examines other relevant factors–the geographic dispersal of the potential class members and the size of each potential class member’s claim–to ascertain whether plaintiffs have made a showing that can overcome this significant deficiency.
It is well settled that joinder is less practicable when potential class members are
dispersed geographically. Geneva Rock Prods., Inc.,
“The practical implications of class-member geographical distribution also require
consideration of a number of the factors applicable to numerosity: the facility of serving process,
the ease of identification, the ease of ascertaining addresses, and the distance between their
residences are all fact-specific inquiries that influence the impracticality of joinder.” Fauvergue,
a class action identifying all potential class members. That spreadsheet, however, only contains the potential class members’ street addresses, and not the associated cities and states. Nevertheless, the court accepts plaintiffs’ averment as true, especially given defendant’s failure to challenge it.
easily contact the potential claimants regarding joining the suit, cf. Jaynes,
A third factor that bears on the numerosity inquiry is the size of the prospective class
members’ individual claims, because in circumstances where there are numerous prospective
claimants with small claims, a class action allows those individuals to pursue their claims
without incurring litigation costs that would overwhelm their potential recoveries. Geneva Rock
Prods., Inc.,
Plaintiffs have not established that the size of the potential class members’ claims in this case render joinder impracticable. First, as defendant notes, plaintiffs do not articulate any reason why a claimant with a small claim would, as a general proposition, choose to opt into a class action but not join a suit as a plaintiff. Specifically, plaintiffs do not explain why a potential claimant would realize a smaller recovery by joining an existing suit as a plaintiff than the potential claimant would realize by becoming a member of a class. Second, plaintiffs do not indicate how the size of the claims of the 156 potential class members in this case are any different from the size of the claims of the 151 claimants who joined the Brooks suit as plaintiffs. If, as is likely, some of the plaintiffs in Brooks have small claims, then their decision to join the Brooks suit suggests that the size of their claims was not a deterrent.
In sum, plaintiffs have not established that the number of members in their proposed class is so large that joinder is impracticable. Nor have plaintiffs made a sufficient showing on the less important factors–the geographic dispersal of the potential class members and the size of each potential class member’s claim–that would enable them to demonstrate that joinder is impracticable. Accordingly, plaintiffs have not satisfied the numerosity requirement of RCFC 23(a)(1). This failure is fatal to plaintiffs’ motion. Nevertheless, for the sake of completeness, the court will address plaintiffs’ satisfaction of the remaining requirements of RCFC 23.
B. Commonality
The next requirement, commonality, comprises three separate inquiries. First, are there
factual or legal issues common to the proposed class? RCFC 23(a)(2). Second, do these
common issues predominate over issues that are not common to the proposed class? RCFC
23(b)(3). And third, has the government acted or refused to act on grounds applicable to the
entire proposed class? RCFC 23(b)(2). In analyzing whether the commonality requirement has
been satisfied, “the court must, where necessary, look beyond the pleadings, and seek to develop
an understanding of the relevant claims, defenses, facts and substantive law.” Barnes, 68 Fed.
Cl. at 494; accord Wal-Mart Stores, Inc.,
1. Common Issues
To establish the existence of a common factual or legal issue, plaintiffs must demonstrate
that the claims of the potential class members “depend upon a common contention” that “is
capable of classwide resolution[.]” Wal-Mart Stores, Inc.,
In this case, plaintiffs assert in their opening memorandum that there is a legal issue common to all potential members of the class: Did the Board’s issuance of the NITU on August 4, 2015, constitute a taking of the potential class members’ property interests without the payment of just compensation in violation of the Fifth Amendment? [7] Defendant acknowledges the existence of a common legal question, but, relying on the decision of the United States Supreme Court (“Supreme Court”) in Wal-Mart Stores, Inc., argues that plaintiffs cannot demonstrate that there is a common answer to this question applicable to all potential class members because “the question of whether a taking has occurred for each property turns on a series of individualized, fact-specific and property-specific inquiries, requiring the Court and the parties to assess each individual property claim to confirm whether a taking occurred for each parcel.” [8] Def.’s Resp. 10-11. In other words, defendant contends that the common legal issue is not capable of classwide resolution. Plaintiffs, in their reply, argue that Wal-Mart Stores, Inc. did not alter the standard for assessing the common-issue requirement. In addition, plaintiffs identify five issues common to their proposed class (four more than they identified in their opening memorandum):
The common questions of law and fact are (1) whether the NITU applies to the segment of the easement at issue in this case, (2) whether that NITU caused a taking of plaintiffs’ property interest, and (3) whether, under North Carolina *11 property law, plaintiffs owned the fee interest underlying the railroad easement. . . . [(4) T]he factual question, i.e., the terms of the easement deeds, is common to the entire class. [(5)] Whether the terms of the deeds created an easement under North Carolina law is likewise a . . . common question. [9]
Pls.’ Reply 7 (footnote added).
Plaintiffs’ contention that Wal-Mart Stores, Inc. had no effect on how courts assess the
common-issue requirement is unavailing. Decisions of the Supreme Court are binding on the
Court of Federal Claims, FCC v. Pottsville Broad. Co.,
The Court of Federal Claims’ class certification decisions in Rails-to-Trails cases that
predate Wal-Mart Stores, Inc. do not specifically address whether the identified common
issue–whether the NITU constituted a taking of the potential class members’ property interests
without the payment of just compensation in violation of the Fifth Amendment–was capable of
classwide resolution. See, e.g., Toscano,
*12
A review of post-Wal-Mart Stores, Inc. class certification decisions in federal courts
reveals only three decisions that address the common-issue requirement in a Fifth Amendment
takings context. All three decisions were issued by the Court of Federal Claims, and only one of
those decisions was in a Rails-to-Trails case. In the Rails-to-Trails decision, the court held that
the common legal issue was “whether the NITU issued on December 31, 2002 effected a taking
of the class members’ property.” Geneva Rock Prods., Inc.,
The other two class certification decisions are equally unhelpful to plaintiffs. In Starr
International Co. v. United States, the plaintiff proposed two classes, one related to a credit
agreement and one related to a reverse stock split.
In Bell v. United States, the parties agreed that plaintiffs’ property was encumbered by
easements owned by the government that allowed for the construction, operation, and
maintenance of levees for flood control purposes.
In contrast, the primary common legal issue identified by plaintiffs in this case–whether the Board’s issuance of the NITU on August 4, 2015, constituted a taking of the potential class members’ property interests without the payment of just compensation in violation of the Fifth Amendment–cannot be resolved for the proposed class as a whole. The NITU only effects a Fifth Amendment taking if, among other prerequisites, Norfolk Southern possessed an easement and the scope of the easement was limited to railroad purposes. See Ladd v. United States, 630 *13 F.3d 1015, 1019 (Fed. Cir. 2010) (noting that in Trails Act cases, a taking occurs when “government action destroys state-defined property rights by converting a railway easement to a recreational trail, if trail use is outside the scope of the original railway easement”). However, because Norfolk Southern acquired its property interests in the railroad right-of-way through condemnation, prescription, and various deeds, it is not possible to ascertain whether Norfolk Southern acquired an easement–or the scope of any such easement–in one fell swoop as required by Wal-Mart Stores, Inc. Rather, an examination of each of the deeds and other documents relied upon by plaintiffs is necessary. Such an examination may reveal that Norfolk Southern owns both fee simple estates and easements in the railroad right-of-way, and that the easements acquired by Norfolk Southern, if any, are of varying scopes. Accordingly, the answer to the primary common question identified by plaintiffs might be “yes” for some potential class members and “no” for other potential class members. The question therefore cannot be resolved on a classwide basis.
The other four issues described by plaintiffs in their reply–“whether the NITU applies to the segment of the easement at issue in this case”; “whether, under North Carolina property law, plaintiffs owned the fee interest underlying the railroad easement”; “the terms of the easement deeds”; and “[w]hether the terms of the deeds created an easement under North Carolina law”–also cannot be used to satisfy the common-issue requirement. The first two issues are common to the proposed class only if the deeds and documents that established the railroad right- of-way created an easement. Although plaintiffs contend that all of the deeds contain “the same or similar operative language” creating an easement, Pls.’ Reply 7, they have not, as noted above, established that contention by sufficient evidence. This failure of proof also affects the remaining two issues described by plaintiffs; those issues cannot be resolved on a classwide basis unless the deeds contain sufficiently similar language.
In short, plaintiffs have not identified a common contention that can be resolved on a classwide basis, and therefore have not satisfied the common-issue requirement of RCFC 23(a)(2).
2. Predominance
In addition to determining whether plaintiffs have established the existence of common
factual or legal issues, the court must determine whether those issues predominate over issues
that are not common to the proposed class. This predominance inquiry “tests whether proposed
classes are sufficiently cohesive to warrant adjudication by representation” and “is far more
demanding” than the initial common-issue inquiry. Amchem Prods., Inc.,
Plaintiffs contend that they satisfy the predominance requirement because the central legal question applicable to all potential class members–whether the Board’s issuance of the NITU on August 4, 2015, constituted a taking of the potential class members’ property interests without the payment of just compensation in violation of the Fifth Amendment–predominates over any individual issues, such as the amount of compensation to which each potential class member might be entitled. Plaintiffs emphasize that there are “few factual differences” among the potential class members because the deeds that conveyed the property interests to create the railroad right-of-way contain similar language, and because all potential class members own property along the same “stretch of land.” Pls.’ Mem. 8. In response, defendant asserts that individual issues–(1) whether Norfolk Southern owned an easement, (2) the scope of any easement, (3) whether the potential class members owned property encumbered by an easement owned by Norfolk Southern on the date that the Board issued the NITU, and (4) the amount of just compensation–predominate over the common question of whether the Board’s issuance of the NITU effected a taking. Plaintiffs, in turn, characterize the individual issues raised by defendant as issues of fact, and contend that “the factual inquiry needed in this particular case is actually very limited and manageable.” Pls.’ Reply 7.
As an initial matter, plaintiffs mischaracterize the issues identified by defendant; some are factual in nature, but others require legal analysis. For example, determining whether a particular deed conveys an easement, and, if so, the scope of that easement, will require an examination of North Carolina law. More problematic for plaintiffs is the fact that they have not identified any issues common to the entire proposed class that can be resolved on a classwide basis. Thus, they cannot establish that common issues predominate over issues that require individual determinations, such as the issues identified by defendant.
3. Similar Treatment
The final aspect of the commonality requirement is determining whether the government
has “acted or refused to act on grounds generally applicable to the class.” RCFC 23(b)(2).
Plaintiffs contend, and defendant does not dispute, that the Board’s issuance of the NITU is a
*15
government action generally applicable to the entire proposed class. Plaintiffs are correct. See
Geneva Rock Prods., Inc.,
C. Typicality
The third general requirement for maintaining a class action is that the claims of the
proposed class representative(s) be typical of the claims of the other prospective class members.
See RCFC 23(a)(3). In many ways, the typicality requirement is similar to the commonality
requirement: “Both serve as guideposts for determining whether under the particular
circumstances maintenance of a class action is economical and whether the named plaintiff’s
claim and the class claims are so interrelated that the interests of the class members will be fairly
and adequately protected in their absence.” Gen. Tel. Co. of the Sw.,
Normally, plaintiffs’ contention that their claims and the claims of the proposed class are
premised on the same legal theory–that the Board’s issuance of the NITU on August 4, 2015,
effected a taking of their property interests without the payment of just compensation in violation
of the Fifth Amendment–would be sufficient to satisfy the typicality requirement. See
Fauvergue,
As previously noted, plaintiffs allege in their second amended complaint that Norfolk Southern owned an easement for railroad purposes underlying the segments of a railroad right-of- way situated between milepost SB 144.55 and milepost SB 154.59, between milepost SB 158.10 and milepost SB 160.00, between milepost SF 384.6 and milepost SF 407.4, and between milepost SB 144.55 and milepost SB 141.35–the same four segments covered by the August 4, 2015 NITU. They further allege that Norfolk Southern’s easement lay across their property, and identify the specific parcels of land encumbered by that easement. However, plaintiffs did not indicate which plaintiffs owned parcels of land adjacent to which segment(s) of Norfolk Southern’s purported easement. [11] Accordingly, from the facts alleged in the second amended complaint, the court can surmise only that each plaintiff owns one or more parcels of land adjacent to one or more of the four segments of the purported easement.
Despite claiming that they own property adjacent to the four segments of the railroad right-of-way described in the NITU, plaintiffs, in their motion to certify this case as a class action, describe the proposed class as:
All persons who on August 4, 2015, owned an interest in lands constituting part of the railroad corridor or right-of-way on which a rail line was formerly operated by Norfolk Southern Railway Company (NSR), from milepost SB 144.55 to milepost SB 154.50 and from milepost SB 158.10 to milepost [SB] 160.00, in Cleveland County, North Carolina . . . .
Pls.’ Mot. 1 (emphasis added). Excluded from this proposed class definition are persons who own an interest in parcels of land adjacent to the segments of the railroad right-of-way situated between milepost SF 384.6 and milepost SF 407.4, and between milepost SB 144.55 and milepost SB 141.35. If any of the twenty named plaintiffs own parcels of land that are adjacent only to these two segments, then they might not be representative of the proposed class. As a result, any such plaintiffs might not have claims that are typical of the claims of the potential class members. This possibility precludes plaintiffs from satisfying the typicality requirement of RCFC 23(a)(3). [12]
D. Adequacy
In addition to establishing numerosity, commonality, and typicality, a putative class
representative must establish that he or she will “fairly and adequately protect the interests of the
class.” RCFC 23(a)(4). There are two aspects to the adequacy requirement: the existence of
conflicts between the putative class representative and the members of the proposed class, and
the qualifications and capabilities of proposed class counsel. Amchem Prods., Inc.,
1. Conflicts of Interest
The first component of the adequacy requirement concerns whether there are any conflicts
of interest precluding a plaintiff from serving as a class representative. See Gen. Tel. Co. of the
Nw., Inc.,
2. Proposed Class Counsel
The second component of the adequacy requirement focuses on the experience and competence of proposed class counsel. Before the court can appoint class counsel, it “must consider”:
(i) the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
(iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class[.] 144.55 and milepost SB 154.59, and between milepost SB 158.10 and milepost SB 160.00; (2) discontinue trackage rights over the segment situated between milepost SF 384.6 and milepost SF 407.4; and (3) discontinue service over the segment situated between milepost SB 144.55 and milepost SB 141.35. See Surface Transportation Board, Decision and Notice of Interim Trail Use or Abandonment: Norfolk Southern Railway Company–Abandonment, Discontinuance of Trackage Rights and Discontinuance of Service–In Cleveland and Rutherford Counties, N.C., and Cherokee County, S.C., https://www.stb.dot.gov/Decisions/readingroom.nsf/UNID/ 5F817A6B4689ED2385257E970069CE04/$file/44597.pdf (Aug. 4, 2015). It may be the case that all of the property owned by plaintiffs is adjacent to the two segments that Norfolk Southern sought to abandon (in other words, the two segments included in the proposed class definition). However, the court cannot to draw this conclusion based on the evidence currently before it. *18 RCFC 23(g)(1)(A). In addition, it “may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class[.]” RCFC 23(g)(1)(B). Although defendant does not challenge the experience or qualifications of plaintiffs’ counsel, the court must satisfy itself that the appointment of plaintiffs’ counsel as class counsel would be in the best interests of the proposed class. RCFC 23(g)(2).
In an affidavit submitted with plaintiffs’ motion to certify this case as a class action, plaintiffs’ counsel describes the work he performed to identify and investigate potential claims and his experience in handling Rails-to-Trails cases, including class actions. Further, there is no dispute that plaintiffs’ counsel possesses knowledge of the applicable law and the resources necessary to represent the proposed class. Based on the information before it, the court concludes that the appointment of plaintiffs’ counsel as class counsel would be in the best interests of the proposed class if the case were certified as a class action.
E. Superiority
The final requirement that plaintiffs must satisfy to maintain a class action is superiority;
in other words, a class action must be “superior to other available methods for fairly and
efficiently adjudicating the controversy.” RCFC 23(b)(3). This requirement is met if the
prospective class representative establishes that “a class action would achieve economies of time,
effort, and expense, and promote uniformity of decision as to persons similarly situated, without
sacrificing procedural fairness or bringing about other undesirable results.” Fed. R. Civ. P. 23
Advisory Committee Note (1966 Amendment), quoted in Amchem Prods., Inc.,
*19 Neither party specifically addresses the factors described in RCFC 23(b)(3). However, their arguments generally pertain to the second and third factors. Plaintiffs argue that a class action is the superior method of litigating this case because it would achieve economies of time, effort, and expense, and prevent inconsistent adjudications. Specifically, they contend that it would be more efficient for the court to hear the claims of the 156 potential class members in one suit rather than in 156 separate suits, and more efficient for the parties to conduct title research and property appraisals in a class action. Defendant, in contrast, argues that litigating this case as a class action is not superior to proceeding through joinder. It asserts that parties and the court in Rails-to-Trails cases have developed efficient methods of litigating suits proceeding through joinder; that the notice to potential claimants required in a class action might confuse those claimants who have already joined the Brooks suit; and that the evidence required for each potential class member to establish their Fifth Amendment takings claim will be unique. In their reply, plaintiffs assert that defendant has not identified any problem with proceeding as a class action that the court has not already addressed or managed in other cases.
Although plaintiffs are correct that many Rails-to-Trails cases have proceeded as class actions in this court, they fail to meet their burden of proving that a class action is superior to other methods of litigating this particular case. As an initial matter, the court has already held that plaintiffs did not demonstrate that proceeding through joinder would be impracticable in this case. To the contrary, the fact that the Brown suit is proceeding through joinder reflects that joinder is a reasonable and practicable method of adjudicating whether the Board’s issuance of the August 4, 2015 NITU effected a taking of property interests without the payment of just compensation in violation of the Fifth Amendment. Moreover, plaintiffs’ failure to identify any common issues that can be resolved on a classwide basis strongly suggests that a class action is not superior to proceeding through joinder. Finally, there is no risk of inconsistent adjudications when proceeding through joinder.
In sum, the court cannot conclude that a class action would be a superior method of litigating this case. Rather, based on the evidence proffered by plaintiffs, proceeding through joinder is at least an equally effective means of litigating the claims of plaintiffs and the other potential claimants. Accordingly, plaintiffs have not established that a class action is superior to other means of litigating this case as required by RCFC 23(b)(3).
III. CONCLUSION
As set forth above, plaintiffs have not met the requirements set forth in RCFC 23 for maintaining a class action. In particular, they have not satisfied the numerosity, typicality, and superiority requirements, and they have failed to satisfy elements of the commonality and adequacy requirements. Each of plaintiffs’ failures is fatal to their motion to certify this case as a class action. Accordingly, plaintiffs’ motion is DENIED . By no later than Friday, June 10, , the parties shall file a joint status report containing a proposed schedule for the liability phase of this case.
IT IS SO ORDERED.
s/ Margaret M. Sweeney MARGARET M. SWEENEY Judge
Notes
[1] The court derives this background from the relevant statutes and regulations, the complaint, the amended complaints, the court’s docket, and the exhibits attached to the parties’ briefs in support of and opposition to plaintiffs’ motion to certify a class action.
[2] The twenty named plaintiffs in the second amended complaint are Douglas G. Brown, Mary Louise Kelley, Russell Keith, Dara Champion, Jane Billedeaux, Hamrick S R Heirs et al., Susan Baxter King, Linda Kirby Owensby, Tomjack Investments LLC, Wake Chapel Properties LLC, Knalda Wright, Doris B. Bettis, Gene Bettis Family Trust, Evelyn K. Wallace Clark, Shirley K. Clark, Carl R. Porter, Kathern C. Porter, Tube Enterprises, Inc., Charles W. Tull Revocable Trust, and Joseph M. Webb.
[3] Even had Brooks not been filed, the court would decline plaintiffs’ invitation to
establish a minimum number of proposed class members that would presumptively render
joinder impracticable. Accord Bell v. United States,
[4] Plaintiffs’ first example of coexisting suits is Raulerson v. United States, No. 10-193L, and Ingram v. United States, No. 10-463L. Raulerson was filed as a class action on March 31, 2010, and Ingram, the joinder suit, was filed on July 19, 2010. Plaintiffs’ second example is Bridgeman v. United States, No. 11-548L, Williams v. United States, No. 15-416L, and McClelland v. United States, No. 15-508L. Bridgeman was filed as a class action on August 30, 2011, Williams, the first joinder suit, was filed on April 24, 2015, and McClelland, the second joinder suit, was filed on May 18, 2015. Plaintiffs’ third example is Finch v. United States, No. 12-92L, and Carpenter v. United States, No. 15-415L. Finch was filed as a class action on February 9, 2012, and Carpenter, the joinder suit, was filed on April 24, 2015. Plaintiffs’ final
[6] Defendant advances two additional related arguments. First, defendant contends that plaintiffs have not explained why the 156 potential class members they identified would opt into a class action after declining to join the Brooks suit as plaintiffs. In response, plaintiffs argue that it is not their burden to establish why potential claimants would opt into a class action after declining to join the Brooks suit. Plaintiffs are correct; they are not required to explain the motivations of potential class members. Defendant also argues that information from other cases certified as class actions indicates that it is unlikely that all 156 potential class members identified by plaintiffs would choose to participate in a class action. However, defendant cites no precedent for its proposition that the court should disregard the size of the proposed class and instead consider how many potential class members would actually opt into the class. Indeed, any efforts by the court to ascertain the ultimate size of a class would be nothing more than pure speculation.
[7] Plaintiffs further contend in their opening memorandum that all facts arising from the issuance of the NITU are common to all potential class members. While this contention may be accurate, it is of no moment. It is a common factual issue, not a common fact, that will satisfy the common-issue requirement of RCFC 23(a)(2).
[8] Defendant advances this argument in the portion of its response devoted to the predominance requirement. However, as the Supreme Court explained in Wal-Mart Stores, Inc., its “focus on the dissimilarities between the putative class members” was “not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to determine (as Rule 23(a)(2) requires) whether there is ‘[e]ven a single [common] question.’”564 U.S. at 359 (quoting Richard A. Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176 n.110 (2003)).
[9] Like defendant, plaintiffs erroneously address the common-issue requirement in the portion of their reply dedicated to the predominance requirement.
[10] Along with their motion to certify a class action, plaintiffs submitted an affidavit from their attorney attesting that Norfolk Southern acquired an easement via condemnation, prescription, and right-of-way deeds, and that the deeds “are all of the same type and have the same or very similar operative language.” Pls.’ Ex. A ¶ 16. Plaintiffs also submitted copies of the deeds; however, many of the deeds are barely legible or not legible at all (most are handwritten, and some of the copies are of poor quality). Thus, the court is unable to verify plaintiffs’ attorney’s broad representation that all of the deeds are of the same type and contain similar operative language. Moreover, plaintiffs’ attorney made no representations concerning the scope of the purported easements acquired by Norfolk Southern via condemnation, prescription, and deed. And, due to the legibility issues, the court could not determine whether the deeds, assuming that they conveyed an easement, limited the scope of the easement to railroad purposes.
[11] For example, plaintiffs allege that Douglas G. Brown owns parcel number 71228, but do not identify the segment or segments of the purported easement to which parcel number 71228 is adjacent.
[12] The court recognizes that the incongruity between the allegations in the second amended complaint and the proposed class definition may be the result of imprecise drafting. The August 4, 2015 NITU, which neither party submitted with their pleadings or briefs, reflects that Norfolk Southern sought to (1) abandon the two segments situated between milepost SB
[13] There are several other methods of adjudicating the claims of multiple individuals arising from the same course of conduct: the permissive joinder of parties under RCFC 20; the filing of a related case under RCFC 40.2; and consolidation under RCFC 42(a). Procedurally, RCFC 20 requires a motion to amend the complaint to join new plaintiffs, while RCFC 40.2 and RCFC 42(a) require the filing of separate complaints.