CHRISTOPHER MIELO; SARAH HEINZL, individually and on behalf of all others similarly situated v. STEAK ‘N SHAKE
No. 17-2678
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
July 26, 2018
PRECEDENTIAL. Argued May 2, 2018. Before: SMITH, Chief Judge, HARDIMAN, and RESTREPO, Circuit Judges.
On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. No. 2-15-cv-00180) District Judge: Honorable Robert C. Mitchell
Maria G. Danaher
Patrick J. Fazzini
Ogletree, Deakins, Nash, Smoak & Stewart
One PPG Place, Suite 1900
Pittsburgh, PA 15222
David H. Raizman [ARGUED]
Ogletree Deakins
400 South Hope Street
Suite 1200
Los Angeles, CA 90071
Counsel for Appellant
Teresa L. Jakubowski
Barnes & Thornburg
1717 Pennsylvania Avenue, N.W.
Suite 500
Washington, DC 20006
Counsel for Amicus Appellants
Cary Silverman
Shook Hardy & Bacon
1155 F. Street, N.W., Suite 200
Washington, DC 20004
Counsel for Amicus Appellants
R. Bruce Carlson
Stephanie K. Goldin
Edwin J. Kilpela, Jr. [ARGUED]
Benjamin J. Sweet
Carlson Lynch Sweet & Kilpela
1133 Penn Avenue
5th Floor Suite 210
Pittsburgh, PA 15222
Counsel for Appellee
Sharon M. Krevor-Weisbaum
Brown Goldstein & Levy
120 East Baltimore
Suite 1700
Baltimore, MD 21202
Counsel for Amicus Appellee
Amy F. Robertston
Civil Rights & Enforcement Center
104 Broadway
Suite 400
Denver, CO 80203
Counsel for Amicus Appellees
OPINION
SMITH, Chief Judge.
TABLE OF CONTENTS
INTRODUCTION ..................................................................................... 5
I. BACKGROUND ....................................................................................... 6
A. Factual Background....................................................................... 6
B. Procedural History......................................................................... 9
C. Applicable Law and Theory of Harm ....................................... 11
II. PLAINTIFFS HAVE STANDING ............................................................. 19
A. Injury in Fact................................................................................ 20
B. Traceability.................................................................................... 26
C. Redressability................................................................................ 27
III. PLAINTIFFS FAIL TO SATISFY RULE 23(A) ........................................ 30
A. Numerosity .................................................................................... 34
B. Commonality ................................................................................. 44
C. The Need for Remand.................................................................. 53
CONCLUSION........................................................................................... 54
INTRODUCTION
In this class action lawsuit, two disability rights advocates have sued Steak ‘n Shake under the
As to the first question, we conclude that Plaintiffs have standing to bring their claims in federal court. Although a mere procedural violation of the ADA does not qualify as an injury in fact under Article III, Plaintiffs allege to have personally experienced concrete injuries as a result of ADA violations on at least two occasions. Further, Plaintiffs have sufficiently alleged that these injuries were caused by unlawful corporate policies that can be redressed with injunctive relief. We withhold judgment as to whether those corporate policies are indeed unlawful, as our standing inquiry extends only so far as to permit us to ensure that Plaintiffs have sufficiently pled as much.
As to the second question before us, we conclude that Plaintiffs have failed to satisfy Rule 23(a). The extraordinarily broad class certified by the District Court runs afoul of at least two of Rule 23(a)‘s requirements. In light of this conclusion, the District Court‘s judgment will be reversed, and this matter will be remanded to the District Court to reconsider if a class should be certified.
I. BACKGROUND
The District Court had jurisdiction pursuant to
A. Factual Background
Christopher Mielo and Sarah Heinzl (“Plaintiffs“) are physically disabled individuals who claim they have personally experienced difficulty in ambulating through steeply graded parking facilities at one Steak ‘n Shake location each. Specifically, Mielo alleges that he “experienced unnecessary difficulty and risk due to excessive slopes in a purportedly accessible parking space and access aisle”1 at a Steak ‘n Shake in East Munhall, Pennsylvania. JA 90, 439. Heinzl alleges that she “experienced unnecessary difficulty and risk due to excessive surface slope in purportedly accessible parking spaces and access aisles, and excessive cross slope along the route connecting purportedly accessible parking spaces to the facility‘s entrance” at a Steak ‘n Shake in Pleasant Hills, Pennsylvania. JA 90, 404-07. After experiencing these alleged violations, neither Mielo nor Heinzl notified anyone at Steak ‘n Shake, although they did contact a lawyer. JA 408-10, 441–42; see also National Association of Convenience Stores, National Grocers Association, and Food Marketing Institute Amici Br. 8 (stating that “21 of the 135 [ADA] Title III lawsuits filed in federal court in Pennsylvania in 2014 were filed on behalf of one of the plaintiffs in this case, Christopher
Mielo“); Katherine Corbett, Julie Farrar-Kuhn, Carrie Ann Lucas, Julie Reiskin, and the Civil Rights Education and Enforcement Center Amici Br. 3 n.1, 18 (noting it is not uncommon for disability advocates to serve as repeat class representatives).
In addition to these two Pennsylvania locations, Plaintiffs allege specific ADA violations at six other Steak ‘n Shake restaurants located throughout Pennsylvania and Ohio. JA 90–92. Although Mielo and Heinzl do not claim to have personally experienced violations at the six other locations,2 the law firm representing them hired an investigator who visited these locations and recorded evidence purportedly supporting the existence of violations. JA 90. Relying on the investigator‘s discoveries at these six additional locations, as well as their own experiences at the East Munhall and Pleasant Hills locations, Mielo and Heinzl seek to enjoin Steak ‘n Shake on a national basis by requiring the company to adopt corporate policies relating to ADA compliance. There are over 500 Steak ‘n Shake restaurants located
throughout the United States, approximately 417 of which are at issue in this appeal.3
Plaintiffs’ complaint requests both “a declaration that [Steak ‘n Shake‘s] facilities violate federal law,” and “an injunction requiring [Steak ‘n Shake] to remove the identified access barriers so that [Steak ‘n Shake‘s] facilities are fully accessible to, and independently usable by individuals with mobility disabilities, as required by the ADA.” JA 87. Plaintiffs propose novel interpretations of the ADA and its corresponding regulations, according to which Steak ‘n Shake would not only be required to correct access barriers, but would also be required to adopt corporate policies directing Steak ‘n Shake employees to continually search for hypothetical access barriers that might need correcting. Despite the novelty of these
interpretations, Steak ‘n Shake has not yet filed a motion to dismiss or motion for summary judgment.
On April 27, 2017, the District Court granted Plaintiffs’ motion to certify a class under
All persons with qualified mobility disabilities who were or will be denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any Steak ‘n Shake restaurant location in the United States on the basis of a disability because such persons encountered accessibility barriers at any Steak ‘n Shake restaurant where Defendant owns, controls and/or operates the parking facilities.
JA 75. As part of its certification ruling, the District Court appointed Mielo and Heinzl as class representatives. JA 75.
In certifying the class, the District Court analyzed the underlying law in this case. Although discussion of such underlying law must necessarily be limited when conducting the standing analysis here, Cottrell v. Alcon Labs., 874 F.3d 154, 162 (3d Cir. 2017) (referring to the “fundamental separation between standing and merits at the dismissal stage“), that law is intertwined with our Rule 23 inquiry. Hydrogen Peroxide, 552 F.3d at 307 (“[T]he court must resolve all factual or legal disputes relevant to class certification, even if they overlap with the merits—including disputes touching on elements of the cause of action.“); Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 591 (3d Cir. 2012) (stating that a “court cannot be bashful” when determining “whether there is actual conformance with Rule 23“). In light of this overlap, we briefly lay out the law upon which Plaintiffs rest their claims.
C. Applicable Law and Theory of Harm
The ADA seeks to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”
achievable,”
Plaintiffs seek injunctive relief to require Steak ‘n Shake to adopt centralized corporate policies crafted to ensure that potential discriminatory access violations are actively sought out and corrected. Plaintiffs seek to do so pursuant to the ADA, which permits private individuals to seek injunctive relief. As
(1) Availability of remedies and procedures. The remedies and procedures set forth in section 2000a-3(a)5 of this title are the
remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability . . . (2) Injunctive relief. In the case of violations of sections 12182(b)(2)(A)(iv)6 and section 12183(a)7 of
this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this subchapter. Where appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods, to the extent required by this subchapter.
Section 12182(b)(2)(A)(iv) states that, for purposes of
[P]hysical features that limit or prevent people with disabilities from obtaining the goods or services that are offered. They can include parking spaces that are too narrow to accommodate people who use wheelchairs; a step or steps at the entrance or to part of the selling space of a store; round doorknobs or door hardware that is difficult to grasp; aisles that are too narrow for a person using a wheelchair, electric scooter, or a walker; a
high counter or narrow checkout aisles at a cash register, and fixed tables in eating areas that are too low to accommodate a person using a wheelchair or that have fixed seats that prevent a person using a wheelchair from pulling under the table.
ADA Guide for Small Businesses, at 3, available at https://www.ada.gov/smbusgd.pdf. The Department of Justice promulgated guidelines pursuant to
One regulation,
Maintenance of accessible features. (a) A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part. (b) This section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs. . . .
Title III‘s implementing regulations . . . require places of public accommodation to maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities.
JA 62 (internal quotation marks omitted). Although we must refrain from engaging in a freewheeling merits analysis while undertaking our inquiries into standing and Rule 23‘s requirements, we nevertheless note the weight that Section 211 must bear in order to support Plaintiffs’ case in chief. To summarize Plaintiffs’ theory of harm, the ADA and its corresponding regulations not only require Steak ‘n Shake to correct discriminatory access violations, but also to adopt policies for ADA compliance that require Steak ‘n Shake to actively seek out potential violations.10
Plaintiffs implicitly argue that it would be good policy to interpret Section 211 to require places of public accommodation to actively seek out access violations, as compared to correcting access violations as they are discovered. See Appellee Br. 37 (arguing that Steak ‘n Shake “effectively . . . push[es] its obligation to maintain the accessibility of its restaurants onto customers“). But while relieving customers of the burden of bringing access violations to the attention of restaurants might be good policy, it appears to be in tension with the very policy which Congress codified in the text of the ADA.
In enacting the ADA, Congress made clear that “the nature and cost” of a particular action, as well as “the overall financial resources of the facility or facilities involved in the action,” must be taken into account when determining whether a particular access violation constitutes ADA “discrimination” that
II. PLAINTIFFS HAVE STANDING
To establish Article III standing, a plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). As “[t]he party invoking federal jurisdiction,” a plaintiff “bears the burden of establishing these elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1997); see also Finkelman v. Nat‘l Football League, 810 F.3d 187, 194 (3d Cir. 2016).
The text of the ADA seems to suggest, then, that disabled patrons like Mielo and Heinzl are better served when restaurants are required to spend their limited financial resources on correcting only the access violations that disabled patrons have actually brought to the restaurant‘s attention—rather than requiring those establishments to expend their limited resources in an ongoing search for potential violations that may not exist.
In the class action context, our standing inquiry focuses solely on the class representative(s). As we squarely held in Neale v. Volvo Cars of N. Am., LLC, “putative class members need not establish Article III standing. Instead, the ‘cases or controversies’ requirement is satisfied so long as a class representative has standing, whether in the context of a settlement or litigation class.” Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 362 (3d Cir. 2015). Given that restriction, we turn to the allegations put forward by Mielo and Heinzl and determine whether, as class representatives, they satisfy all three elements of standing.
A. Injury in Fact
The primary element of standing is injury in fact, and it is actually a conglomerate of three components. See Spokeo, Inc., 136 S. Ct. at 1547. To establish an injury in fact, a plaintiff must first “show that he or she suffered ‘an invasion of a legally protected interest.‘” Id. at 1548 (quoting Lujan, 504 U.S. at 560). Second, a plaintiff must show that the injury is both “concrete and particularized.” Id. Third, a plaintiff must also show that his or her injury is “actual or imminent, not conjectural or hypothetical.” Id.
In determining whether Plaintiffs have suffered an invasion of a legally protected interest, we must carefully “separate our standing inquiry from any assessment
The second component of injury in fact requires that an alleged injury be both “concrete” and “particularized.” To the extent that Plaintiffs allege only a harm in the mere existence or absence of particular corporate policies, Plaintiffs lack standing. As we recognized in Cottrell, “[b]are procedural or technical violations of a statute alone will not satisfy the concreteness requirement.” Cottrell, 874 F.3d at 167 (citing Spokeo, 136 S. Ct. at 1549).12 Therefore, even assuming that Steak ‘n Shake violated the ADA by failing to have an adequate ADA compliance policy in place, the mere nonexistence of such a policy would not afford Plaintiffs a basis to establish standing. In other words, Plaintiffs would still need to show how the lack of a policy resulted in a concrete harm that was particular to them. Because Plaintiffs do not allege how the mere nonexistence of a particular corporate policy constitutes a concrete harm in and of itself,13 they cannot rely on the want of such a policy as a basis for standing.
But although Plaintiffs’ complaint could be read as alleging no more than mere procedural violations of the ADA, our caselaw requires us to “examine the allegations in the complaint from a number of different angles to see if [plaintiffs‘] purported injury can be framed in a way that satisfies Article III.” Finkelman, 810 F.3d at 197. Further examining Plaintiffs’
Of course, Plaintiffs seek to require Steak ‘n Shake to correct alleged ADA violations at more than the two restaurant locations where they claim to have actually experienced injury. Highlighting Plaintiffs’ geographically expansive request, Steak ‘n Shake argues that Plaintiffs do not have standing to seek relief beyond the East Munhall and Pleasant Hills locations. Appellant Br. 57–59. In taking this tack, however, Steak ‘n Shake conflates Article III standing with requirements of
As we made clear in Neale, “a properly formulated
Finally, the third component of the injury in fact inquiry requires Plaintiffs to show that their injury is actual or imminent, rather than conjectural or hypothetical. After conceptualizing Plaintiffs’ alleged injury as experiencing physical difficulty in the form of ambulating through allegedly unlawful parking facilities, it is clear that this third subcomponent is easily satisfied. The physical injuries of which Plaintiffs complain are not merely hypothetical or conjectural, they have actually occurred.15
We conclude, therefore, that Plaintiffs have sufficiently alleged that they suffered an injury in fact.
B. Traceability
The second element of standing requires Plaintiffs to establish that their alleged injury in fact “is fairly traceable
This requirement is akin to “but for” causation in tort and may be satisfied even where the conduct in question might not have been a proximate cause of the harm. An indirect causal relationship will suffice, provided that there is a fairly traceable connection between the alleged injury in fact and the alleged conduct of the defendant.
Id. at 193-94 (internal citations omitted). Plaintiffs allege that their injuries were “caused” by Steak ‘n Shake‘s unlawful corporate policies. In other words, Plaintiffs allege that “but for” Steak ‘n Shake‘s policies there would be no injury. While Plaintiffs will face a heavier burden to establish causation should they eventually be put to their proof, their burden of establishing causation at the pleadings stage is less stringent. Lujan, 504 U.S. at 561 (“[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.“). Accordingly, we conclude that Plaintiffs have satisfied the traceability element of standing.
C. Redressability
The third standing element requires Plaintiffs to show that their injury “is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S. Ct. at 1547. “This requires the plaintiff to show that it is ‘likely, as opposed to merely speculative,’ that the alleged injury will be redressed by a favorable decision.” Finkelman, 810 F.3d at 194 (quoting Lujan, 504 U.S. at 561). Although this third element of standing presents a close call, we conclude that Plaintiffs have satisfied it.
Courts must be cognizant of “the rule that a ‘remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.‘” Gill v. Whitford, 138 S. Ct. 1916, 1931 (2018) (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)). Bearing in mind that Plaintiffs do not have standing to seek remedies corresponding to mere procedural violations of the ADA, we consider whether the declaratory and injunctive relief Plaintiffs seek will likely satisfy the only injuries they have successfully alleged: physical injuries associated with ambulating through steeply graded parking facilities, and the deterrent effect that these injuries have on Plaintiffs’ ability to enjoy Steak ‘n Shake‘s services in the future.
Plaintiffs provide three examples of injunctions, any one of which they contend would remedy their injuries. First, Plaintiffs propose that the District Court could develop “training protocols” intended to “ensure” that Steak ‘n Shake‘s maintenance employees “are aware of the ADA‘s structural requirements and know how to identify access violations for prompt repair.” Appellee Br. 50. Second, Plaintiffs propose that the District Court direct Steak ‘n Shake “to conduct annual ADA-specific inspections to ensure accessibility has been maintained.” Id. Third, Plaintiffs propose that the District Court direct Steak ‘n Shake “to refrain from engaging in its current practice” of performing ADA inspections only in response to complaints brought to the company‘s attention by patrons. Id.
Each of the proposed injunctions suffer from the same flaw: Not one specifically directs that an allegedly non-compliant parking facility slope be corrected. And if an ADA-violative slope has not been
Yet even with this daylight between Plaintiffs’ proposed injunctions and the actual remedying of injuries, we recognize that a plaintiff need only establish that a favorable judicial decision be “likely” to remedy a plaintiff‘s injury in fact. Lujan, 504 U.S. at 561. Nothing before us suggests that individual Steak ‘n Shake locations would prove unable or unwilling to adhere to a new corporate policy requiring the company to actively seek out access violations. Moreover, Plaintiffs’ complaint includes a request that the District Court “retain jurisdiction over this matter for a period to be determined,” in part “to ensure that [Steak ‘n Shake] comes into compliance with the relevant requirements of the ADA.” JA 87. Such a retention of jurisdiction would permit the District Court to address any potential failures by Steak ‘n Shake to actually correct discriminatory barriers that were discovered as a result of new policies. We conclude, therefore, that the adoption of a policy similar to the three examples offered by Plaintiffs would likely remedy Plaintiffs’ alleged injuries. Plaintiffs have satisfied all three elements of standing.
III. PLAINTIFFS FAIL TO SATISFY RULE 23(A)
As former-Judge Posner has described it, “[t]he class action is an ingenious procedural innovation that enables persons who have suffered a wrongful injury, but are too numerous for joinder of their claims alleging the same wrong committed by the same defendant or defendants to be feasible, to obtain relief as a group . . . .” Eubank v. Pella Corp., 753 F.3d 718, 719 (7th Cir. 2014). Given that class actions are “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only,” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–701 (1979)), a plaintiff wishing to bring a lawsuit in federal court must first satisfy the explicit requirements set forth in
Here, Plaintiffs have sought to establish a
As we have previously explained, the “relaxed” class certification standard suggested in Eisenberg did not survive the 2003 amendments to
Although the trial court has discretion to grant or deny class certification, the court should not suppress ‘doubt’ as to whether a
Rule 23 requirement is met—no matter the area of substantive law. Accordingly, Eisenberg should not be understood to encourage certification in the face of doubt as to whether aRule 23 requirement has been met... Eisenberg predates the recent amendments toRule 23 which, as noted, reject tentative decisions on certification and encourage development of a record sufficient for informed analysis.
Id. at 321. Following Hydrogen Peroxide, we again dismissed Eisenberg‘s outdated view in In re Schering Plough Corp. ERISA Litig.:
Additionally, the Report and Recommendation invokes Eisenberg v. Gagnon for the proposition that “[u]ltimately, doubts are resolved in favor of class certification.” Our decision in Hydrogen Peroxide makes clear that Eisenberg should not be read in this manner....
In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 600 n.14 (3d Cir. 2009) (internal citations omitted). We repeat (hopefully for the last time): the “relaxed”
A. Numerosity
In recent years the numerosity requirement has been given “real teeth.” Robert H. Klonoff, The Decline of Class Actions, 90 WASH. U. L. REV. 729, 768 (2013). Although this strengthening of the numerosity inquiry has sometimes been criticized,18 our precedent nonetheless demands that a court “make a factual determination, based on the preponderance of the evidence, that
In Marcus, we considered the claims of a plaintiff who had leased a BMW automobile with four Bridgestone “run-flat tires”19 and had alleged that those tires were defective. Id. at 588. The district court in that case certified a “class action brought on behalf of all purchasers and lessees of certain model-year BMWs equipped with Bridgestone [run-flat tires] sold or leased in New Jersey with tires that have gone flat and been replaced.” Id. (internal quotations omitted). We vacated the district court‘s certification order, in part because the plaintiff had failed to satisfy his numerosity burden. Id. In outlining the requirements of a successful numerosity showing, we explained that:
Of course,
Rule 23(a)(1) does not require a plaintiff to offer direct evidence of the exact number and identities of the class members. But in the absence of direct evidence, a plaintiff must show sufficient circumstantial evidence specific to the products, problems, parties, and geographic areas actually covered by the class definition to allow a district court to make a factual finding. Only then may the court rely on “common sense” toforgo precise calculations and exact numbers.
Id. at 596. One of the shortcomings of the district court‘s numerosity analysis in Marcus was that although there was evidence of BMW purchases on a nationwide scale, there was no evidence indicating the portion of those purchases that might have occurred in New Jersey—the geographic limitation of the relevant class.
While we noted that it was “tempting to assume that the New Jersey class meets the numerosity requirement based on the defendant companies’ nationwide presence,” we rejected the idea that giving in to such temptation could excuse speculation. Id. at 597. Because the plaintiff had presented a “complete lack of evidence specific to BMWs purchased or leased in New Jersey with Bridgestone RFTs that have gone flat and been replaced,” we concluded that the district court‘s “numerosity ruling crossed the line separating inference and speculation.” Id.
Applying the reasoning of Marcus a year later in Hayes, we considered a plaintiff‘s allegations that a retailer violated a state consumer fraud statute by selling unredeemable service plans for products that were in reality sold “as-is.” Hayes, 725 F.3d at 352. In Hayes, the plaintiff presented evidence of over 3,500 transactions that included both the sale of a service plan and a price override. Id. at 353. Because a price override was something that a store cashier did when selling an “as-is” product, the district court had reasoned that numerosity was satisfied since, “if even 5% of those [3,500] price overrides were for as-is items ineligible for Service Plan protection, the class would be sufficiently numerous under
Although the district court in Hayes was correct in pointing out that a cashier would perform a price override when selling an “as-is” product, those cashiers also performed price overrides in other scenarios—such as when a customer “requests a discount because the item is sold for less elsewhere,” or when a customer “purchases an item and later finds it on sale.” Id. at 352. Transactions falling within these other scenarios were not part of the class definition, which was comprised of only customers who purchased a “Service Plan to cover as-is products.” Id. at 353.20 As we explained in Hayes:
[P]laintiff did not fulfill his burden of supplying circumstantial evidence specific to the products and problems involved [in] the litigation and instead premised his argument for numerosity on improper speculation. The only concrete numerical evidence presented to the court was that New Jersey Sam‘s Clubs had on record 3,500 transactions that included both a price-override and the sale of a Service Plan. But there is no factual basis for determining how many of these 3,500 transactions included the purchase of a Service Plan for an as-is item . . . . In short, the only conclusion that can be drawn from the evidence presented to the trial court is that the number of class members would be equal-to-or-less-than 3,500 and equal-to-or-greater-than zero. Within that range, we can only speculate as to the number of class members.
Plaintiffs attempt to carry their numerosity burden by offering three
In assessing the sufficiency of these three strands of evidence, we begin by noting that although “[n]o minimum number of plaintiffs is required to maintain a suit as a class action,” a plaintiff in this circuit can generally satisfy
Plaintiffs point to a large number of disabled persons living in the United States. Yet they have presented no evidence that would permit us to use “common sense” to determine—rather than speculate about—the portion of those disabled individuals who have actually patronized a relevant Steak ‘n Shake restaurant, let alone the portion who have experienced or will experience an ADA violation at one of those restaurants. As we explained in Hayes, “where a putative class is some subset of a larger pool, the trial court may not infer numerosity from the number in the larger pool alone.” Id. at 358; see also Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267–68 (11th Cir. 2009) (“[T]he district court‘s inference of numerosity for a Florida-only class without the aid of a shred of Florida-only evidence was an exercise in sheer speculation. Accordingly, the district court abused its discretion by finding the numerosity requirement to be satisfied with respect to a Florida-only class.“).
Plaintiffs’ second strand of evidence advances their
Perhaps sensing the weakness of their numerosity showing, Plaintiffs would have this court adopt the reasoning of the District Court that
In Modafinil, we noted that:
We have not had occasion to list relevant factors that are appropriate for district court judges to consider when determining whether joinder would be impracticable. We do so now. This non-exhaustive list includes: judicial economy, the claimants’ ability and motivation to litigate as joined plaintiffs, the financial resources of class members, the geographic dispersion of class members, the ability to identify future claimants, and whether the claims are for injunctive relief or for damages.
In re Modafinil Antitrust Litig., 837 F.3d at 252–53. We start by simply highlighting that the injunction versus damages question referred to in Modafinil represents but a single factor within a non-exhaustive list of six. But even more fundamentally, Modafinil does not state—nor should it be read to suggest—that a plaintiff seeking injunctive relief will have an easier time satisfying
In sum, because Plaintiffs have failed to present evidence sufficient to permit us to go beyond speculation as to the impracticability of joinder, we conclude that Plaintiffs have failed to satisfy their
B. Commonality
The broad class definition certified by the District Court includes a commonality issue. As previously set forth, the District Court certified a class defined as:
All persons with qualified mobility disabilities who were or will be denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any Steak ‘n Shake restaurant location in the United States on the basis of a disability because such persons encountered accessibility
barriers at any Steak ‘n Shake restaurant where Defendant owns, controls and/or operates the parking facilities.
JA 75 (District Court Order).21 Although the final clause in this one sentence definition refers to “parking facilities,” the definition does not strictly limit membership to those who have suffered harm within those parking facilities. The language adopted by the District Court is looser than that, and covers not only persons who allege that they have experienced ADA violations within a Steak ‘n Shake parking facility but also class members who encountered “accessibility barriers at any Steak ‘n Shake restaurant.” JA 75. This could include claims, for instance, regarding the bathroom of a Steak ‘n Shake that had maintained a perfectly ADA-compliant parking facility.
To comprehend just how large the potential universe of ADA violations covered by this broad class definition is, consider the Department of Justice‘s ADA Guide for Small Businesses, which defines “architectural barriers” as:
[P]hysical features that limit or prevent people with disabilities from obtaining the goods or services that are offered. They can include parking spaces that are too narrow to accommodate people who use wheelchairs; a step or steps at the entrance or to part of the selling space of a store; round doorknobs or door hardware that is difficult to grasp; aisles that are too narrow for a person using a wheelchair, electric scooter, or a walker; a high counter or narrow checkout aisles at a cash register, and fixed tables in eating areas that are too low to accommodate a person using a wheelchair or that have fixed seats that prevent a person using a wheelchair from pulling under the table.
ADA Guide for Small Businesses, at 3, available at https://www.ada.gov/smbusgd.pdf (emphases added). Moreover, the Department of Justice‘s 2010 Title III ADA Regulations further illustrate the wide variety of different ADA violations that any one particular class member might allege to have encountered. For example,
Removal of Barriers.
(a) General. A public accommodation shall remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.
(b) Examples. Examples of steps to remove barriers include, but are not limited to, the following actions—
(1) Installing ramps;
(2) Making curb cuts in sidewalks and entrances; (3) Repositioning shelves;
(4) Rearranging tables, chairs, vending machines, display racks, and other furniture;
(5) Repositioning telephones;
(6) Adding raised markings on elevator control buttons;
(7) Installing flashing alarm lights;
(8) Widening doors;
(9) Installing offset hinges to widen doorways;
(10) Eliminating a turnstile or providing an alternative accessible path;
(11) Installing accessible door hardware;
(12) Installing grab bars in toilet stalls;
(13) Rearranging toilet partitions to increase maneuvering space;
(14) Insulating lavatory pipes under sinks to prevent burns;
(15) Installing a raised toilet seat;
(16) Installing a full-length bathroom mirror;
(17) Repositioning the paper towel dispenser in a bathroom;
(18) Creating designated accessible parking spaces;
(19) Installing an accessible paper cup dispenser at an existing inaccessible water fountain;
(20) Removing high pile, low density carpeting; or
(21) Installing vehicle hand controls.
In Dukes, the Court considered a class of female employees alleging Title VII gender discrimination. Dukes, 564 U.S. at 343. In conducting a
Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury,” Falcon, supra, at 157, 102 S.Ct. 2364. This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. 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. at 349–50 (emphasis added).
Applying the Court‘s teaching in Dukes to the matter at hand, we conclude that Plaintiffs’ class presents a similar commonality challenge. Although all class members might allege a violation of the ADA—even the very same provision of the ADA—this only establishes that putative class members “merely” allege to “have all suffered a violation of the same provision of law.” Id. at 350. For purposes of satisfying
Even assuming, arguendo, that a proper interpretation of the class definition would limit the class to members who suffered injuries within a Steak ‘n Shake parking facility,22 the wide variety of regulations quoted above reveal that there are still various types of ADA violations that could occur specifically in a parking facility. Plaintiffs’ own complaint, for example, lists seven different categories of parking facility violations. JA 90–92. The complaint refers to: (1) parking space slopes; (2) access aisle slopes; (3) slopes relating to the route leading to a facility entrance; (4) lack of proper parking signage; (5) lack of proper “van accessible” designations; (6) improper mounting of “accessible” parking signage; and (7) “curb ramp” slopes. Id. Although all seven of these categories allegedly constitute ADA violations, they harm class members in materially different ways.
A class member, for example, complaining that “accessible” parking signage was “mounted less than 60 inches above the finished surface o[f] the parking area,” JA 91, has experienced harm different from that of a class member complaining that “[t]he surfaces of one or more access aisles had slopes exceeding 2.1%.” JA 92. As Dukes makes clear, suffering “a violation of the same provision of law” is not enough. Dukes, 564 U.S. at 349. Instead, class members’ claims must “depend upon a common contention” that “is capable of classwide resolution . . . in one stroke.” Id. at 350. The wide variety of potential ADA violations captured in the broad class definition certified by the District Court does not lend itself to such a resolution. We therefore conclude that Plaintiffs have failed to satisfy
C. The Need for Remand
In light of our resolution of the
Specifically, as to
CONCLUSION
Plaintiffs seek to utilize the class action device to enforce one of our nation‘s landmark civil rights laws. However commendable the ultimate result Mielo and Heinzl seek may be, our analysis here is limited to two questions: First, whether Plaintiffs have Article III standing, and second, whether Plaintiffs have met their burdens under