191 F.R.D. 530 | S.D. Ohio | 1999
ENTRY REGARDING IMPACT OF ALLISON V. CITGO PETROLEUM CORPORATION, 151 F.3d 402 (5th Cir.1998) UPON PLAINTIFFS’ REQUEST FOR CLASS CERTIFICATION UNDER FED. R. CIV. P. 23(b)(2)
The Plaintiffs bring this litigation as a class action, on behalf of themselves and all others similarly situated, alleging that Defendant has engaged in a pattern and practice of “systematically excluding women from employment opportunities at its plants in Anna, Marysville and East Liberty, Ohio.” Plain
During a discovery conference conducted on June 27, 1998, the Court, at the Defendant’s request, directed the parties to brief the impact of the Fifth Circuit’s decision in Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.1998), on the Plaintiffs’ request that the Court certify this action as a class action pursuant to Rule 23(b)(2). Of particular importance, the Fifth Circuit therein addressed the impact of the availability of compensatory and punitive damages, under 42 U.S.C. § 1981a, on a request to certify an action pursuant to that Rule.
Rule 23(b)(2) provides:
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
According to the Advisory Committee’s Notes, Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” 39 F.R.D. 98, 102 (1966). As originally enacted, a Title VII plaintiff could obtain only equitable relief, such as reinstatement and back pay. The Sixth Circuit has indicated that the availability of an award of back pay in a Title VII action did not preclude certification of such an action under Rule 23(b)(2). Alexander v. Aero Lodge No. 735, 565 F.2d 1364, 1372 (6th Cir.1977); Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir.), cert. denied, 429 U.S. 870, 97
In its Memorandum (Doc. #90), the Defendant argues that Allison, as a matter of law, prevents the Plaintiffs from utilizing Rule 23(b)(2) to certify a class action, setting forth claims under Title VII and requesting compensatory and punitive damages under § 1981a. Therefore, for purposes of analyzing that position, the Court assumes that the Plaintiffs can establish the four requisite elements for the maintenance of a class action contained in Rule 23(a) (i.e., numerosity, commonality, typicality and adequacy of representation). The Court will also assume that the Defendant has acted “on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” The only question the Court addresses is whether a Title VII action, in which the plaintiffs seek compensatory and punitive damages, as well as injunc-tive, relief, can ever be certified under Rule 23(b)(2).
Allison was the first and, to date, the 'only Circuit to address the impact of § 1981a upon the certification of a class action under Rule 23(b)(2).
To ascertain the predominant form of relief sought, the district court considered whether: (1) the request for money damages was integral to and flowed directly from the injunctive or declaratory relief; (2) the request for money damages affected the cohesiveness of the class and the homogeneity of interests; (3) issues common to the claims for injunctive or declaratory relief predominated; and (4) the mon-fey damages arose out of conduct based on policies generally applicable to all plaintiffs. Applying these factors, the court concluded that the plaintiffs’ claims for money damages predominated over their claims for nonmonetary relief, making certification of the class inappropriate under (b)(2).
Upon appeal,
In sum, the predomination requirement of Rule 23(b)(2) serves essentially the same functions as the procedural safeguards and efficiency and manageability standards mandated in (b)(3) class actions. In balancing the competing interests underlying the class action device, (b)(2)’s predomi-nation requirement serves two basic purposes: first, it protects the legitimate interests of potential class members who might wish to pursue their monetary claims individually; and, second, it preserves the legal system’s interest in judicial economy.
Consistent with this analysis, we reach the following holding: monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief. Accord Williams v. Owens-Illinois, Inc., 665 F.2d 918, 928-29 (9th Cir.), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982). By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief. See Fed.R.Civ.P. 23(b)(2) (referring only to relief appropriate “with respect to the class as a whole”). Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. See Manual for Complex Litigation, supra, at 348 (citing Simer v. Rios, 661 F.2d 655 (7th Cir.1981)); see also, e.g., Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D.Cal.1994) (defendant’s liability entitled class to a statutorily mandated damage award). That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions.
151 F.3d at 414-15.
Like the Sixth Circuit, the Fifth had long held that the availability of an award of back pay under Title VII did not prevent an action
As the plaintiffs correctly point out, Pettway stated that the (b)(2) inquiry into whether one form of relief predominates over another involves consideration of the “pragmatic ramifications of adjudication” and the effect of the relief sought, rather than any special attributes of the class involved. See [494 F.2d] at 256 (citing 3B Moore’s Federal Practice § 23.45[1] at 703 (2d ed.1969)). The incidental damages standard actually takes these considerations into account. We recognize that, as a matter of degree, whether a given monetary remedy qualifies as incidental damages will not always be a precise determination. Nor is it intended to be. “[Cjomplex cases cannot be run from the tower of the appellate court given its distinct institutional role and that it has before it printed words rather than people.” Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir.), cert. denied, 464 U.S. 1009, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). The district courts, in the exercise of their discretion, are in the best position to assess whether a monetary remedy is sufficiently incidental to a claim for injunctive or declaratory relief to be appropriate in a(b)(2) class action.
Based upon the foregoing analysis, the Allison court concluded that the District Court had, in the main, utilized appropriate standards to determine whether the plaintiffs’ request for injunctive relief was predominant,
One could argue that Allison stands for certain unremarkable propositions, to wit: a ease cannot be certified under Rule 23(b)(2), if monetary damages are the predominant type of relief sought; the availability of compensatory and punitive damages, pursuant to § 1981a, is a factor to consider when determining the predominant type of relief sought;
However, Allison can also be read as establishing certain restrictive, formulaic principles of law, to wit: injunctive and declaratory relief predominate, only if the money damages sought are incidental (i.e., monetary relief predominates in a subsection (b)(2) analysis, unless it is incidental to requested injunctive or declaratory relief); money damages are incidental, only if they flow “directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief’ (151 F.3d at 415); and compensatory and punitive damages under § 1981a are not incidental damages. Accepting the Fifth Circuit’s definition of incidental and, further, given the necessity of individualized proof to support an award of compensatory and punitive damages under § 1981a in that Circuit, the Court assumes for present purposes that such damages do not constitute incidental damages. Thus, this Court turns to the question of whether to accept the Fifth Circuit’s conclusion that injunctive or declaratory relief will predominate only if the money damages sought are incidental, as defined by that court. If such conclusion is accepted by this Court, then the Plaintiffs cannot maintain this litigation as a class action under Rule 23(b)(2).
As is stated above, Rule 23(b)(2) provides that an action may be certified as a class action if the party opposing the class has acted in a manner generally applicable to the class, making final injunctive or corresponding declaratory relief appropriate to the class as a whole. Rule 23(b)(2) does not expressly prohibit courts from employing it to certify an action in which the class seeks both in-junctive relief and money damages. However, as has been seen, the Advisory Committee’s Notes, which have been endorsed by all Circuits that have addressed the issue, including the Fifth, indicate that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates ... predominantly to money damages.” 39 F.R.D. 98, 102 (1966) (emphasis supplied).
In sum, the Court concludes that an action in which both injunctive relief and money damages are sought may be certified as a class under Rule 23(b)(2), as long as money damages do not constitute the predominate type of relief requested. This Court will be able to decide what type of relief is predominate only after considering the evidence presented at a class certification hearing and the arguments of counsel. Accordingly, this Court declines to follow Allison, to the extent that, therein, the Fifth Circuit held that class certification under Rule 23(b)(2) is inappropriate whenever the plaintiffs seek damages under § 1981a, because such damages are not incidental.
In sum, the Sixth Circuit has stressed that a lawsuit can be certified as a class action, only after a “rigorous analysis” of the prerequisites of Rule 23. In re American Medical Systems, Inc., 75 F.3d 1069, 1078-79 (6th Cir.1996). The Court will engage in such an analysis, after hearing the evidence and considering the arguments of counsel. The Court will include in that calculus a consideration of the impact of § 1981a, on the Plaintiffs’ request to certify this litigation under Rule 23(b)(2).
. The Plaintiffs also contend that this litigation can be maintained as a class action under Rule 23(b)(1)(A), alleging that inconsistent or varying adjudications with respect to individual class members would establish incompatible standards of conduct for Defendant to follow. See Doc. #31 at V 27.
. The Plaintiffs also assert that this allegation states a violation of Chapter 4112 of the Ohio Revised Code and the common law of Ohio.
. Section 1981a is merely a remedial statute, affording the remedy of compensatory and punitive damages to a plaintiff who has been the victim of intentional discrimination in violation of Title VII. That statutory provision does not afford such a plaintiff a separate cause of action.
. The Plaintiffs had initially alleged that this litigation could be certified as a class action pursuant to Rule 23(b)(3). Such an allegation is absent from their Second Amended Complaint. During the June 27th discovery conference, the Plaintiffs, in response to the Defendant’s request to brief Allison, mentioned that they might seek to allege once again that this action may be maintained as a class action pursuant to that Rule. Although the Plaintiffs argue that the Court could employ a hybrid approach, under which Rule 23(b)(2) is utilized for claims for injunctive relief and Rule 23(b)(3) is reserved for claims for damages, the Plaintiffs have not sought leave to amend their most recent pleading to allege that this litigation may be maintained as a class action under Rule 23(b)(3).
. In those cases, the Sixth Circuit did not expressly endorse or reject the position contained in the Advisory Committee's Notes. The Circuits which have addressed the question have unanimously concluded that a class may be certified under Rule 23(b)(2), only if the predominant relief sought is injunctive or declaratory. Allison, 151 F.3d at 410; Eubanks v. Billington, 110 F.3d 87, 92 (D.C.Cir.1997); Boughton v. Cotter Corp., 65 F.3d 823 (10th Cir.1995); Zimmerman v. Bell, 800 F.2d 386, 389-90 (4th Cir.1986); In re School Asbestos Litigation, 789 F.2d 996, 1008 (3rd Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986); Holmes v. Continental Can Co., 706 F.2d 1144 (11th Cir.1983); Simer v. Rios, 661 F.2d 655 (7th Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982); Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2nd Cir.1968). Accord, In re Jaclcson National Life Insurance Company Premium Litigation, 183 F.R.D. 217 (W.D.Mich.1998) ("The Court has carefully considered plaintiffs' motion for class certification and found it wanting. Notwithstanding their satisfaction of the requirements of Rule 23(a), plaintiffs have failed to demonstrate that nationwide class certification is appropriate under Rule 23(b)(2) by showing that the relief sought is primarily declaratoiy and injunctive, rather than monetary.”).
. Compensatory and punitive damages are not available in disparate impact cases. Herein, the Plaintiffs have not relied upon a disparate impact theory.
. Thus, the Court rejects the Plaintiffs’ argument that it should not address the impact of Allison, until they have had an adequate opportunity to conduct discovery. Herein, the Court addresses a legal question, rather than one of a factual nature.
. The Plaintiffs cite Eubanks v. Billington, 110 F.3d 87 (D.C.Cir.1997), wherein the District of Columbia Circuit approved the certification of a Title VII class action under Rule 23(b)(2), even though the plaintiffs had sought monetary relief in the form of back pay and front pay. (Of course, back pay and front pay, in lieu of reinstatement, are considered forms of equitable relief, rather than compensatory damages). Although Eubanks was decided after the effective date of § 1981a, that litigation arose out of a charge of discrimination that had been filed in 1975. Given that the remedies provided by § 1981a are not to be applied retroactively, the District of Columbia Circuit was not called upon to address the impact of that statute upon certification under Rule 23(b)(2).
. The District Court had certified its decision for an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b).
. The Fifth Circuit did hold that it had been inappropriate for the District Court to consider whether common issues predominated over other issues; however, any error in that regard was harmless, since the District Court's analysis of this factor had been separate from and in addition to its consideration of the appropriate factors. 151 F.3d at 416.
. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir. 1996), cert. denied, 519 U.S. 1091, 117 S.Ct. 767, 136 L.Ed.2d 713 (1997).
. The Plaintiffs argue that it defies logic to hold that the availability of compensatory and punitive damages under § 1981a can serve as the basis for preventing the certification of a Title VII class action pursuant to Rule 23(b)(2). As
. The Plaintiffs argue that predominance has no place in the determination of whether to certify a class under Rule 23(b)(2). The case cited by Plaintiff for this proposition is inapposite. In Forbush v. J.C. Penney Co., 994 F.2d 1101 (5th Cir.1993), the court merely indicated that the question of whether common issues predominate over individual ones is not implicated by Rule 23(b)(2). Indeed, that question is a concern for Rule 23(b)(3). The issue addressed by the Fifth Circuit in Allison, in accordance with the directive set forth in the Advisory Committee's Notes, was whether the type of relief sought by the plaintiffs was predominantly money damages.
. Outside the Fifth Circuit, there have been very few cases addressing Allison. In Faulk v. Home Oil Co., Inc., 184 F.R.D. 645 (M.D.Ala. 1999), the court endorsed the Fifth Circuit's analysis, while in Carter v. West Publishing Co., 1999 WL 376502 (M.D.Fla.1999), the court concluded, as has this Court herein, that Allison did not mandate the conclusion that an action could not be certified, merely because the plaintiffs were seeking monetary damages.
. The Defendant also argues that the Seventh Amendment poses an irreducible impediment to the Plaintiffs’ request for certification under Rule 23(b)(2). In particular, the Defendant contends that the problems of predominance could not be avoided by separating the Plaintiffs' claims for injunctive relief from their request for compensatory and punitive damages under § 1981a, since that would constitute a violation of the Seventh Amendment. While the Seventh Amendment may prevent this Court from certifying this litigation as a class action, the Court will not make that determination until it has heard the evidence, considered the arguments of counsel and determined whether this litigation can be otherwise certified under Rule 23(b)(2).
. By letter to the Court under date of July 26, 1999, Plaintiffs’ counsel submitted an affidavit from James T. McClave (“McClave”), an expert witness retained by Plaintiff. Therein, McClave states that there is a reliable econometric approach, which could be used to calculate, on a class-wide basis, the economic impact of the Defendant's alleged discriminatory practices in hiring and promotions. Herein, the Court has addressed the issue of whether it should follow Allison and hold that the availability of money damages under § 1981a means, as a matter of law, that an action under Title VII can never be certified under Rule 23(b)(2). Accordingly, the Court has not considered McClave's affidavit or any other evidence.
