ORDER
This matter is before the Court pursuant to the Motion for Class Certification, Doc. # 69, filed by Plaintiff Gladys S. Melton, by Ernie Dutton her power of attorney, on behalf of other persons similarly situated (“Plaintiff’) on October 25, 2011. Defendant Carolina Power & Light Company d/b/a Progress Energy Carolinas, Inc. (“PEC” or “Defendant”) filed a response on November 23, 2011. On May 18, 2012, this Court held a hearing on the Motion where it heard from all parties.
Background
Defendant is a public utility engaged in the business of electricity generation, procurement and transmission, as well as natural gas procurement, transportation and storage. Defendant maintains electricity rights-of-way, or easements, allowing it to transmit and distribute electric power to the public over Plaintiffs property and over the property of similarly situated individuals. Defendant has easements in South Carolina for two different types of power lines. Transmission lines are high-voltage lines that run from power-generating facilities to substations and from substation to substation. Distribution lines are lower-voltage lines that run from substations to individual customers. It is undisputed that the transmission line easements, which are at issue in this case, allow for the transmission of electricity and for communications in connection thereto, such as communicating between substations as to the amount of electricity to be transmitted. [See Mot. for Certification, Doc. # 69-1, at 2-3.]
In the 1980s, Defendant began installing fiber optic cable on some of these easements. To date, Defendant claims it has installed approximately 151 miles of fiber optic cable in both its transmission and distribution line easements in South Carolina. According to Plaintiff, the initial purpose of installing the fiber optic cable in the transmission line easements was to accomplish communications necessary to transmit electricity.
Plaintiff claims that Defendant has allowed telecommunications companies, for a fee, to use the fiber optic cable installed in the transmission line easements for general telecommunications purposes. Plaintiff claims that most of the transmission line easements do not, however, allow for this use, and that this use exceeds the scope of the easements that were granted to Defendant. Plaintiff alleges that Defendant never informed Plaintiff or similarly situated individuals of this general telecommunications use, and that Defendant has not compensated Plaintiff or others for this use. Accordingly, Plaintiff is seeking class certification in order to pursue their claims against Defendant.
The class definition for which Plaintiff seeks class certification is as follows:
All owners of real property in South Carolina over and/or under which PEC has transmission easements or other transmission line rights-of-way or easements used in connection with transmission of general*286 telecommunications and over and/or in which such easements PEC has constructed or allowed to be constructed fiber optic communication lines and/or wireless communication apparatuses that have been used to transmit communications other than PEC’s electricity-related internal communications without the right to do so. Excluded from the class are railroad rights-of-way, rights-of way owned by any federal, state and/or local governmental agency; and any judge who has decided some or all issues in the case and any persons related to the judge in a manner that would disqualify the judge from hearing the case.
[Mot. for Certification, Doc. # 69-1, at 20.]
Plaintiff has produced more than 700 easements that it claims prohibit the use of fiber optic cable for general telecommunications. Plaintiff has categorized the easements into five different easement forms, sorted by the “purpose clause” of the easement, or the key language within the easement grant that defines Defendant’s primary rights.
Standard of Review
“A district court has broad discretion in deciding whether to certify a class.” Thom v. Jefferson-Pilot Life Ins. Co.,
In determining the appropriateness of certification, courts should first consider the definition of the class. See Anselmo v. West Paces Hotel Gr., LLC, No. 9:09-2466,
Once an adequate class definition is set forth, the moving party bears the burden of proving that the purported class meets the requirements of Federal Rule of Civil Procedure 23. Rule 23 establishes a two part-test for class action certification: the action must satisfy the four subparts of Rule 23(a), as well as the additional requirements of either Rule 23(b)(1), 23(b)(2), or 23(b)(3). See Fed.R.Civ.P. 23(b). “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule.” Wal-Mart Stores, Inc. v. Dukes, — U.S. -,
I. Rule 23(a) requirements
A moving party must establish each of the four prerequisites set forth in Rule 23(a): 1) numerosity of the members of the class such that joinder of all members is impracticable; 2) questions of law and fact that are common to the class; 3) the claims or defenses of the class representatives are typical of the claims or defenses of the class members; and 4) adequacy of representation. Fed.R.Civ.P. 23(a).
A. Numerosity
To satisfy the numerosity requirement of Rule 23(a), plaintiff must show that joinder is impracticable. Lienhart v. Dryvit Sys., Inc.,
B. Commonality
Commonality requires that there are questions of law or fact common to the class. Thorn,
C. Typicality
“Typicality requires that the claims of the named class representatives be typical of those of the class; ‘a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.’ ” Lienhart,
D. Adequacy of representation
Plaintiffs must be able to “fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). The adequacy of representation requirement involves two inquiries: 1) whether the plaintiff has any interest antagonistic to the rest of the class; and 2) whether plaintiffs counsel is qualified, experienced and generally able to conduct the proposed litigation. S.C. Nat’l Bank v. Stone,
The Fourth Circuit has stated that “the final three requirements of Rule 23(a) ‘tend to merge,’ with commonality and typicality ‘serving] as guideposts for determining ... whether maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.’ ” Broussard v. Meineke Disc. Muffler Shops, Inc.,
II. Rule 23(b)(3) requirements
In addition to meeting the numerosity, commonality, typicality, and adequacy of representation requirements of Rule 23(a), before a class can be certified, the putative class action must fall into one of the categories specified in Rule 23(b). Plaintiff here specifically seeks certification under only Rule 23(b)(3). Unlike class actions under Rule 23(b)(1) and (b)(2), actions under Rule 23(b)(3) are “[f]ramed for situations in which class-action treatment is not clearly called for,” but “may nevertheless be convenient and desirable.” Lienhart,
Under Rule 23(b)(3), a proposed class must satisfy two factors: predominance and superiority. See Thorn,
The predominance requirement ensures that a class is “sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc.,
The superiority requirement ensures that “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). Among the factors a district court should consider in deciding whether a class action meets these two requirements are:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigations of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed.R.Civ.P. 23(b)(3).
Discussion
Plaintiff has failed to show that she has met all requirements of class certification. Specifically, Plaintiffs proposed class definition depends upon the merits of the case and requires an extensive factual inquiry to determine class members, individual issues predominate over questions of law or fact common to the members of the class, and a class action is not the superior method for adjudication of the controversy.
I. Plaintiff’s proposed class definition is impermissible
As a threshold matter, Defendant challenges Plaintiffs proposed class definition as creating an impermissible “fail safe” class.
Plaintiffs proposed class includes those who own property encumbered by Defendant’s transmission line easements, where
Plaintiff contends that to the extent its original class definition is defective,
Both of Plaintiffs proposed definitions appear to have the effect of creating fail safe classes. While the second definition offered by Plaintiff eliminates the phrase “without the right to do so,” it adds the qualifier “as determined by the Court not to allow ... general telecommunications.” Under either definition, it seems the Court must first determine whether the easement language at issue allowed Defendant to transmit general telecommunications via the fiber optic cable installed on that easement.
Although either definition offered by Plaintiff appears to create a fail safe class, or to create a class definition dependent upon the merits of the ease, the Court is also mindful that “[d]efining a class so as to avoid, on one hand, being over-inclusive and, on the other hand, the fail-safe problem is more of an art than a science.” Messner,
Typically, courts examining class certification under Rule 23 begin by examining the four subparts of Rule 23(a) before analyzing the requirements of Rule 23(b).
A Plaintiff cannot satisfy the predominance requirement
There are a number of individual issues that predominate over any common questions that may exist as to the class, and Plaintiff thus fails to show that predominance under Rule 23(b)(3) is present in this ease.
Defendant argues that it notified many-putative class members that it was using its fiber optic cable for general telecommunications, a use which began sometime in the 1990s. [See Def.’s Resp., Doc. #84, at 3.] Defendant points to several communications and publications that it claims constituted such notice:
• According to retired PEC vice president Emerson Gower, from 1990 through the mid-2000s, representatives from Defendant gave numerous speeches with a focus on “highlight[ing] non-electric business ventures of [Defendant] ... [and] including] a discussion of [Defendant’s] telecommunications business—specifically, that [Defendant] was using excess capacity in its existing fiber optic cable system to provide telecommunications services to municipalities, small businesses, and other telecommunications companies.” [Gower Aff., Doc. #84-2, at ¶ 8.] During this time period, Mr. Gower himself made 24 speeches a year to civic groups across the state, including local chambers of commerce, while other employees gave approximately 40-50 similar speeches per year. [Id. at ¶7.] Attendance at these speeches ranged from 50 to 200 people. [Id.]
• In annual reports from 1994-2006, Defendant advised its shareholders that the company was installing fiber optic cable and planned to partner with telecommunications providers to use that cable. [See PEC Shareholder Reports, Doc. # 84-1, at 18-51.] For example, one report in 1994 advised shareholders that “the company expanded its internal fiber-optic cable system to accommodate the growing needs of telecommunications providers.” [IcL at 20.]
• Defendant disclosed its plans for installation and use of fiber optic cable at different times in the 1990s and 2000s through various regulatory filings. [See PEC Regulatory Filings, Doc. #84-1, at 55-106.]
• Defendant published press releases that contained various information regarding Defendant’s growth and Defendant’s expansive use of fiber optic cable. [See PEC Press Releases, Doc. #84-1, at 107-121.] One such release, states that “[t]he combined fiber optic assets of [Defendant and others] will create a powerful super-regional telecommunications and Internet infrastructure company ... stretching along the east coast____” [Id. at 108.]
• Defendant contends that the class would also include its former employees, who might have first-hand knowledge that Defendant’s fiber optic communication lines were used for general telecommunications purposes. [See Def.’s Resp., Doc. # 84, at 12.]
• Defendant also argues that potential class members may have spoken with others who had received notice, or observed work crews and discovered the intended use of the fiber optic communication lines. [Id. at 28.]
In turn, Defendant argues that to the extent the easements at issue bar general telecommunications, whether or not a particular class member had notice could entitle Defendant to any number of affirmative defenses, including statute of limitations, waiver, estoppel, laches, or prescriptive easement.
The Court agrees. The presence of notice-based affirmative defenses would require individualized analyses of when potential class members knew or should have known that Defendant was using fiber optic cables for general telecommunications. This individualized analysis is fatal to Plaintiffs claim for class certification.
On its surface, Plaintiffs action appears to raise a common question: Does the easement language allows Defendant to use the easement for general telecommunications purposes? [See Mot. For Certification, Doc. # 69-1, at 6-7.] However, “[w]hat matters to class certification ... is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers
Plaintiff’s arguments to the contrary are unavailing.
i. Affirmative defenses and denial of class certification
Plaintiff argues that affirmative defenses do not normally justify denial of class certification. [Pl.’s Reply, Doc. # 88, at 6. (citing 2 Herbert B. Newberg, Newberg on Class Actions § 4:26, at 241 (4th ed. 2002)).] However, the authority cited by Plaintiff for this proposition does not address prescriptive easements, waiver, estoppel, or laches, and actually notes many times when statute of limitations defenses have, in fact, destroyed predominance. See 2 Herbert B. Newberg, Newberg on Class Actions § 4:26 (4th ed. 2002) . Moreover, in Gunnells v. Healthplan Services., Inc.,
ii. Whether the conduct is continuing or permanent is not dispositive
Plaintiff argues that any defense relating to statute of limitations or other equitable time-based limitations lacks merit because the trespass by Defendant is continuing, as opposed to permanent.
Section 15-3-530 of the South Carolina Code provides a three-year statute of limitations for trespass.
The parties vigorously dispute whether, based upon Plaintiffs allegations, Defendant’s use of fiber optic cable for general
First, although Plaintiff claims the continuing nature of Defendant’s conduct in this case would bar its proposed defense of laches,
Second, the nature of the trespass does nothing to impact Defendant’s notice-based defenses of waiver, estoppel, and prescriptive easement. See, e.g., Janasik v. Fairway Oaks Villas Horizontal Prop. Regime,
Hi. Defendant’s alleged notice is not inadequate as a matter of law and would thus require individualized inquiry in at least several cases
Plaintiff claims that the notice alleged by Defendant is deficient because potential class members never had notice or knowledge that the “fiber optic cable on their property was being used for the unauthorized [purpose] of transmitting general telecommunications as opposed to the authorized use of transmitting electricity.” [Pl.’s Reply, Doc. # 88, at 6-7.] Plaintiff makes two primary arguments
First, Plaintiff contends that potential class members would not have received the communications and documents referenced by Defendant, and it is wholly speculative to argue they would have received Defendant’s information. [Id. at 7-8.]
The Court agrees that based upon the record, there is no indication that Defendant’s various communications, filings, and press releases specifically targeted members of the proposed class—owners of property encumbered by transmission line easements containing fiber optic cable, through which Defendant allowed general telecommunications. However, it is probable that potential class members received Defendant’s information.
Based on the affidavit of Mr. Gower, he and his staff gave approximately sixty-four speeches per year, to groups of at least fifty, over a period of at least ten years. [Gower Aff., Doc. #84-2, at ¶ 7.] Moreover, these speeches were specifically delivered in South Carolina communities served by Defendant. [Id. at ¶ 6.] Thus, according to Mr. Gower’s sworn affidavit, Defendant’s communications were received by more than 32,000 individuals here in South Carolina.
It is also worth noting that Plaintiff has identified virtually no other potential class members, although she bears the burden of proving predominance under Rule 23(b)(3) is met. Gunnells,
Accordingly, this Court cannot say that the potential class members would not, or could not, have received notice. See, e.g., Neidhardt v. TCI Midcontinent LLC, No. 1:09-cv-078,
Second, Plaintiff claims the content of the information proffered by Defendant did not provide notice that Defendant was using its fiber optic cable for general telecommunications. Plaintiff supports this contention by way of several arguments.
• References in the annual reports to the telecommunications business are contained in a limited number of pages, and the references themselves do not inform the proposed class member that their property in particular is being used for the transmission of general telecommunications. [Pl.’s Reply, Doc. #88, 9-10.]
• While the regulatory filings do contain statements that telecommunications businesses would use Defendant’s fiber optic cable, there is no indication that proposed class members knew of or read these detailed filings. Further, the filings would still not tell a particular individual that their property was being used for this purpose. [Id. at 10.]
*295 • The press releases are unclear as to where they originated, and are vague as to the extent to which Defendant’s fiber optic cable will be used for general telecommunications. [Id. at 12.]
• It is pure speculation for Defendant to claim that its employees would be class members, or that potential class members observed installation or maintenance activities. [Id. at 12.]
By asking this Court to find that the supposed notice alleged by Defendant was in fact no notice at all, Plaintiff is asking this Court to determine that the information disseminated by Defendant, even if received by a class member, did not constitute notice as a matter of law.
Under South Carolina law, notice can either be actual or constructive:
Generally, actual notice is synonymous with knowledge. Constructive notice is a legal inference which substitutes for actual notice. It is notice imputed to a person whose knowledge of facts is sufficient to put him on inquiry; if these facts were pursued with due diligence, they would lead to other undisclosed facts. Therefore, this person is presumed to have actual knowledge of the undisclosed facts.
Strother v. Lexington Cnty. Recreation Comm’n,
To be sure, the forms of the alleged notice proffered by Defendant range from the rather weak and hypothetical (potential class members approaching construction workers), to the rather sound and probable (meetings with South Carolina residents), with the remainder falling somewhere in between. Still, it is unnecessary for this Court to attempt to parse through the various forms of notice provided by Defendant because this Court cannot rule that all of the proposed forms of notice were inadequate as a matter of law.
For example, Defendant has produced sworn affidavits that its representative delivered in-person discussion speeches, likely to potential class members, where a company representative discussed Defendant’s plans to use its fiber optic cable to provide telecommunications services. [Gower Aff., Doc. # 84-2, at ¶¶ 6-8; Moore Aff., Doc. # 84-1, at ¶¶ 12-13.] Further, Defendant has produced a shareholder’s report, whose validity is uncontested, that the company was extending its fiber optic cable system to provide telecommunications services. [PEC Shareholder Reports, Doc. # 84-1, at 20.]
On the record before it, this Court cannot say that these communications failed to provide information sufficient to put a potential class member on inquiry that the fiber optic cable in their easements were being used for general telecommunications.
Accordingly, following a “close look” at Plaintiffs claims, and having conducted a “rigorous analysis” of those claims in light of Defendant’s affirmative defenses, the Court finds that Plaintiff has not met her burden under Rule 23(b)(3) of demonstrating that common issues predominate over individual issues.
2. Variations among purpose clauses in the easements
The easements at issue require varying degrees of individual examination, which further supports this Court’s finding that Plaintiff fails to demonstrate predominance.
Plaintiff has identified five easement forms that supposedly prohibit the conduct at issue here, sorted by the “purpose clause”—the key language within the easement grant. [See Easement Forms, Doc. # 88-3, at 2-19.] However, based on the language of these purpose clauses, some of the easement forms may arguably allow Defendant to use fiber optic cable for general telecommunications purposes.
Easement Forms 1 and 2 give Defendant the right “to do all things necessary or convenient” for the transmission of electricity, including “transmitting communications ... for use in conducting the Company’s business.” [Id. at 2-7, 4.] It is unclear how expansive the phrases “all things necessary and convenient” and “conducting the Company’s business” may be. Defendant was also involved in the telecommunications business from the early 1990s through the mid-2000s, allowing Defendant to argue that the conduct Plaintiff describes as “general telecommunications” was in fact a part of “the Company’s business” and therefore permitted under these easements.
Easement Form 3 contemplates the construction, operation, and maintenance of “all telephone, telegraph, and other wires ... and accessories desirable in connection therewith.” [Id. at 13.] The easements in Easement Form 4 contain grant language either allowing for the transmission of electricity or electric transmission lines, including all telephone, telegraph, and other wires, and accessories desirable in connection therewith, or allowing the transmission of electricity and all things necessary or convenient thereto including transmitting communications for use in conducting Defendant’s business. [Id. at 17.]
Given this variant language among the easement forms, determining the rights under one type of easement will not provide a classwide resolution to address the scope of all of the easements at issue. See Dukes,
3. Plaintiff’s reliance on supposedly factually similar cases is misplaced
In arguing that this class action should move forward, Plaintiff discusses several cases that also involved the use of fiber optic cable for purposes exceeding the scope of a company’s easement. See Fisher v. VEPCO,
i. Although seemingly analogous, Fisher is readily distinguishable
Understandably, Plaintiff relies most heavily on Fisher, where a district court within the Fourth Circuit granted class certi
First, the Fisher court certified the class primarily under Rule 23(b)(2), which discusses declaratory relief and has no predominance requirement. Id. at 226, 228; see also Fed.R.Civ.P. 23(b)(2); Califano v. Yamasaki,
Second, the reason the Fisher court spent so little time discussing predominance is that, according to the court, the parties addressed only the manageability aspect of Rule 23(b)(3). Id. at 213. In its limited discussion of predominance, the Fisher court noted that “there is no evidence that consent or the statute of limitations are an issue for more than a handful of the potential class members,” and later noted that “there is some potential that individual issues may arise solely on the issue of damages .... ” Id. at 217, 227 (emphasis added). As this Court has previously discussed, there is evidence here of numerous affirmative defenses necessitating individual inquiry.
Third, Fisher only addressed the limited affirmative defenses raised by the defendants under the commonality prong of Rule 23(a) (2), and held that “the law in this circuit is that differences in the availability of certain defenses do not defeat class certification where, as here, all the class claims are based on the same legal and remedial theory.” Id. at 217. To the extent this is an accurate statement of current law in the Fourth Circuit, it can only be accurate for purposes of Rule 23(a)(2) commonality and not Rule 23(b)(3) predominance. In Gunnells, which was decided only a few months after Fisher, the Fourth Circuit discussed predominance under Rule 23(b)(3) and reaffirmed that in the Fourth Circuit, “when [a] defendants] affirmative defenses ... depend on facts peculiar to each plaintiffs ease, class certification is erroneous.’” Gunnells,
ii. State court cases cited by Plaintiff are similarly unavailing
Although the state cases cited by Plaintiff all involved a company allegedly exceeding the scope of the use of fiber optic cable within property owners’ easements, they are more easily distinguishable than Fisher.
Gressette was a class action brought in South Carolina state court. It does not appear from the record that the Gressette court discussed the potential problems regarding affirmative defenses and other individual issues in any great detail. This makes sense, as South Carolina’s class certification rule has no predominance or superiority requirement. See S.C. R. Civ. P. 23. It is well-settled that South Carolina’s Rule 23 “endorses a more expansive view of class action
Although the state class certification rules applied in Schexnayder and Seven Hills, from Louisiana and Florida respectively, discuss some form of predominance, the cases are still distinguishable. See Schexnayder,
B. Plaintiff cannot satisfy the superiority requirement
Plaintiffs failure to meet the predominance requirement under Rule 23(b)(3) requires that this Court deny certification. See Zimmerman v. Bell,
1. Scant progress has been made toward identifying the relevant information
As an initial matter, little momentum has been made toward positively identifying the two most critical components to this case: the easements at issue and the relevant class members. Although they disagree on the organization of the present easements, both Plaintiff and Defendant appear to agree that there are more easements at issue than those listed by Plaintiff. [See Def.’s Resp., Doc. # 84, at 20-21; Pl.’s Reply, Doc. # 88, at 3; Byrd Dep., Doc. # 84-4, at 38:12-25.]
Moreover, other than Plaintiff, virtually no other class members have been identified, and the parties cannot agree as to how class members may be best identified. It is undisputed that because the easements may encompass several properties, “there are many more class members than the ... easements applicable to this case.” [Mot. For Cert., Doc. # 69-1, at 6.] In examining how to appropriately identify class members, the manageability problems of this case become crystalized.
2. Title searches would be required
The parties offer two primary ways to identify class members: title searches and tax records.
According to Defendant, the process for identifying class members must begin with determining the exact location of the fiber optic cable at issue. [Moore Aff., Doc. # 84-1, at ¶21.] Once it is determined which parcels are actually impacted by fiber optic cable, the owners must be identified by individual title searches on each parcel of property. [Id. at ¶ 21.] These title searches would, of course, require a detailed examination of thousands of properties across multiple counties. [See Mot. for Certification, Doc. # 69-1, at 6 (explaining that the 734 easements currently produced have since been subdivided into multiple properties).]
On the other hand, Plaintiff maintains that most class members’ names could be obtained from county tax records. [Pl.’s Reply, Doc. # 88, at 5.] Specifically, a map of Defendant’s fiber optic system could be overlaid across a county tax map, and the owners of the property encumbered by that fiber optic system could than be obtained from the county tax records. [Id]
i. Title search will accurately identify members of the class and give those class members proper notice
First, a title search is the only reliable way to determine the relevant class members. Tax records are both “inaccurate and incomplete,” as they do not accurately reflect the ownership of heirs and devisees, they do not reflect parties claiming an interest by adverse possession, they do not reflect areas of disputed ownership due to deep overlaps, and they could incorrectly show receivers of false conveyances as true owners. [Moore Aff., Doc. # 84-1, at ¶ 26; Byrd Dep., Doc. # 84-4, at 51:10-22.]
Plaintiffs own expert,
Second, a title search would be the only way to comport with the notice requirements for a Rule 23(b)(3) class. When a party seeks certification under Rule 23(b)(3), “the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Fed.R.Civ.P. 23(c)(2) (emphasis added). Such notice is required for a 23(b)(3) class so that class members have the opportunity to opt out and pursue their claims separately. See Fed.R.Civ.P. 23(e)(3)(B).
ii. A lesser form of notice is impermissible
Plaintiff suggests that a process less cumbersome than individual notice
One, the Supreme Court has long held that, in a class action brought under Rule 23(b)(3), individual notice to identifiable class members is not a “discretionary consideration” to be waived in a particular case, nor may notice requirements be tailored to fit “pocketbooks of particular plaintiffs.” Eisen v. Carlisle and Jacquelin,
Two, the state court cases cited by Plaintiff for the proposition that identification via tax records is acceptable for notice purposes did
Three, relying again on Fisher, Plaintiff indicates that even if the tax records could not identify each class member for purposes of individual notice, the Court could use its discretion to provide an alternative form of notice. See Fisher,
Four, Petitioner’s suggestion that this Court should also follow Fisher by moving forward with the case now and waiting until some later date to determine whether actual owners are identified by tax records is untenable. Fisher was decided prior to December 1, 2003, before Federal Rule of Civil Procedure 23(c)(1) was amended to remove the language authorizing conditional certification. See Fed.R.Civ.P. 23 advisory committee’s note (2003). As noted in the committee note, the former provision that class certification “may be conditional” was deleted because “[a] court that is not satisfied that the requirements of Rule 23 have been met should refuse certification until they have been met.” Id. Although it did not style its certification as conditional, the Fisher court specifically certified the class “on the condition that” easement scope questions and notice issues “do[ ] not require extensive individual adjudication.” Fisher,
Although the Fourth Circuit has not squarely addressed how the elimination of conditional certification from Rule 23 impacts class actions, the Third Circuit has examined this precise issue.
A trial court must make a definitive determination that the requirements of Rule 23 have been met before certifying a class. While courts retain discretion under Rule [23] ... to alter[ ] or amend [ ] before final judgment an order granting or denying class certification, courts should not grant certification except after searching inquiry, and ... should not rely on later developments to determine whether certification is appropriate.
Hohider v. United Parcel Service, Inc.,
It seems that the Fisher court adopted a conditional posture which would be impermissible under current Rule 23. Fisher, 217
3. Managing this class action would be problematic
The difficulties in proceeding with this class action abound.
First, the work required to simply identify the relevant class members via title searches is a substantial task. Assuming all relevant parcels of property impacted by Defendant’s fiber optic cable are identified,
Seeond, there is likely additional work required to identify the universe of relevant easements. According to Defendant, the collection of easements provided by Plaintiff is not complete, and the only way to locate all relevant easements would be to perform title searches
Third, the Court must also deal with the interplay between transmission line easements and the potentially more inclusive distribution line easements.
Plaintiff contends that distribution line easements make up a small portion of Defendant’s fiber optics system and that this small portion can be excluded from the class if Defendant “produces evidence demonstrating” a distribution line for which easements allowing general telecommunications have been issued. [Pl.’s Reply, Doc. # 88, at 20-21.] However, it is Plaintiff who bears the burden of demonstrating that “a class action is superior to other available methods for ... adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). Further, to accept Plaintiffs contention that we certify the class and then determine the impact of distribution line easements as we move along would require the Court to certify this class before making a “definitive” determination that the requirements of Rule 23 have been met. Hohider,
Conclusion
To certify this class action would be to open a Pandora’s box from which would emerge scores of individual issues, unmanageable identification problems, and untold temporal and financial costs. In addition to an improper class definition, Plaintiff has not met her burden under Rule 23(b)(3), as individual issues predominate over common questions of law or fact, and a class action is not the superior method for adjudication of the controversy. See Fed.R.Civ.P. 23(b)(3).
Based on the foregoing, it is ORDERED that Plaintiffs Motion for Class Certification, Doc. # 69, is DENIED.
IT IS SO ORDERED.
Notes
. The Court also heard arguments relating to Defendant’s Motion to Partial Summary Judgment, Doc. # 56, and Plaintiff’s Motion for Sanctions, Doc. #78. The Court's order on Defendant’s Summary Judgment Motion is at Doc. # 95. However, as discussed in this Court’s order at Doc. # 96, the Court would like additional information before ruling on Plaintiff’s Motion for Sanctions.
. The Manual for Complex Litigation (Fourth) counsels against federal judges certifying fail safe classes. "The order defining the class should avoid ... terms that depend on resolution of the merits (e.g., persons who were discriminated against).” Manual for Complex Litigation (Fourth) § 21.222 (2004). Although it appears that the Fourth Circuit has not squarely addressed the permissibility of a "fail safe” class, several decisions from this Court and other district courts within the Fourth Circuit have held that a "proposed class definition must not depend on ... the merits of the case ... to determine who is a class member.” Cuming,
. While Plaintiff references a number of transmission line class action cases, only a South Carolina state court case used a definition with similar language that would require the court to make a determination on the merits before the class could proceed. [See Pl.’s Reply, Doc. # 88, at 3-4 (citing Gressette v. SCE & G, No. 2004—CP-10-2006,
. As discussed in Section 1(A)(2), the various language of the different easements could raise predominance issues.
. Even if this Court were to undertake an effort to revise the class definition to correct a possible fail safe problem, the class definition also fails because it is not administratively feasible for the Court to determine whether a particular individual is a member. [Def.’s Resp., Doc. # 84, at 20.] The proposed class definition would require an "extensive factual inquiry to determine who is a class member.” Cuming,
. Several courts have considered the factors under Rule 23(b)(3) before moving on to the requirements of Rule 23(a), particularly when consideration of Rule 23(b)(3) would be dispositive. See, e.g., Wu v. Pearson Educ., Inc.,
. Given that Rule 23(b)(3) is dispositive in this case it is unnecessary for this Court to decide whether Plaintiff has met the requirements of Rule 23(a). However this Court has doubts as to whether Rule 23(a) is satisfied in this case. As to adequacy and typicality, the single named Plaintiff possesses only one of five different types of easements as categorized by Plaintiff. Yet these groups of easements vary in terms of their purpose language. [See Easement Forms, Doc. # 88-3, at 2-19; Mot. For Certification, Doc. # 69-1, at 13-14.] By Plaintiffs own admission, some contain language allowing Defendant to do "all things necessary or convenient” for the transmission of electricity, including "transmitting communications ... for use in conducting the Company’s business,” some include the phrase "but not limited to" before listing the ways in which Defendant may use the easements, while others "clearly” prohibit general telecommunications use. [Pl.’s Reply, Doc. # 88-3, at 2; Mot. for Certification, Doc. # 69-1, at 14.] Although this Court is not in a posture to issue a ruling on the merits and determine what conduct is permitted under the easements at issue, the variant granting language in the easement makes it possible that one or more groups of easements may prohibit the conduct complained of by Plaintiff, while other groups might allow it. Given that Plaintiff possesses an easement that might actually allow the conduct at issue, this variation seems to "strikef] at the heart of the respective causes of action[,]” Deiter,
As to commonality under Rule 23(a)(2), evaluating Plaintiff's claim would require this Court to analyze several different easements that may or may not allow the challenged conduct, and, as discussed herein, would require the Court to resort to individualized evidence of notice, waiver, consent, and laches. These individualized determinations could make it unlikely that any supposed common question is "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.” Dukes,
. This Court is aware that the Dukes court discussed the "common answer” analysis in terms
. Prior to April 5, 1988, section 15-3-530 of the South Carolina Code provided a six-year statute of limitations for trespass.
. Although South Carolina authority references both continuous and permanent trespass, South Carolina courts primarily analyze the contours of permanent versus continuous behavior in terms of nuisance. See Hedgepath v. AT & T,
. Classifying the trespass in this case is not an easy task. The limited South Carolina authority on point tends to focus on (1) whether abatement—or elimination of the challenged conduct—is reasonably and practically possible; and (2) whether the injury is divisible. See, e.g., Hedgepath,
. Plaintiff also alleges that there is no available statute of limitations defense against the potential class members' unjust enrichment claims because “the unjust enrichment that Plaintiff alleges [is] of a continuing nature....” [Pl.’s Reply, Doc. # 88, at 6.] Again, Plaintiff cites no authority for the proposition that the statute of limitations period for an unjust enrichment is dependent upon whether the opposing party’s conduct is continuous or permanent. Further, Defendant would still have a potential defense of laches against the unjust enrichment claims.
. Plaintiff also argued that potential class members would not have known whether or not they had fiber optic cable because, even if a person saw lines being installed in the late 1980s or
. At neither the hearing nor in its briefings did Plaintiff dispute the veracity of Mr. Gower's testimony that he and his staff delivered such speeches.
. The Court notes that were the presence of former employees the only issue standing in the way of predominance, the Court could exclude current and former employees of Defendant from the class.
. Plaintiff actually concedes that the regulatory filings, which are matters of public record, contained information that Defendant was using its fiber optic cable for general telecommunications purposes. [See Pl.’s Reply, Doc. # 88, at 6-7.]
. Defendant argues that damages can only be determined on a case-by-case basis while Plaintiff argues damages can be determined on a uniform per foot or per mile basis. The Court takes no opinion as to the proper method for evaluating damages in this case. However, while an individual damages determination would be a factor to support this Court’s finding that Plaintiff has not demonstrate predominance, individual damage determinations alone would not be a basis for denying class certification. "Rule 23 contains no suggestion that the necessity for individual damage determinations destroys commonality, typicality, or predominance, or otherwise forecloses class certification.” Gunnells,
. Other courts have dealt with the issue of grouping easements by their purpose language, and the Court could potentially create subclasses that might cure this deficiency. However, when considered in light of the individual issues that are already pervading the common issues, the variation among the purpose clauses further counsels against predominance and, accordingly, class certification.
. Plaintiff also uses these cases to illustrate the supposed manageability of this class action. As discussed throughout Section II, this reliance is equally misplaced.
. At least two district court cases decided since Fisher have specifically taken issue with Fisher's conclusion. See, e.g., Genenbacher v. CenturyTel Fiber Co. II,
. Plaintiff's expert, Jennifer Byrd, graduated from Florence-Darlington Technical College in 1994 with an Associates Degree as a Paralegal and works as an independent title abstractor. [See Byrd Report, Doc. # 50-1, at ¶ 1.]
. Depending on the procedural posture of a class action, Federal Rule of Civil Procedure 23 allows for at least three different forms of notice to potential class members, which vary in their rigorousness. Class actions certified under Rule 23(b)(1) or 23(b) (2) require what is likely the least demanding notice to class members. See Fed.R.Civ.P. 23(c)(2)(A). For these classes, a court need only “direct appropriate notice to the class.” Id. Settlement classes require a slightly more onerous notice procedure, as "[t]he court must direct notice in a reasonable manner to all class members who would be bound by the proposal.” See Fed.R.Civ.P. 23(e)(1). The most rigorous notice requirement is reserved for classes, like the one at bar, which are certified under Rule 23(b)(3). For these classes, a "court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language [the seven requirements laid out in the Rule.]” See Fed.R.Civ.P. 23(c)(2)(B) (emphasis added).
. Although the class was certified under Rule 23(b)(2), the Fisher court initially ordered the parties to provide notice to class members under 23(c)(2)(b), which is the notice provision governing classes certified under 23(b)(3). See Fisher,
. Plaintiff's contention that the conduct at issue creates a continuous trespass further complicates this case by way of damages calculations. With regard to those potential class members who may have been aware that Defendant was using fiber optic cable for general telecommunications purposes (and subject to notice-based affirmative defenses), Defendant could argue that damages for those class members are limited based on their knowledge of Defendant’s "unauthorized” use. Although South Carolina law does not impose a statute of limitations for bringing a continuous trespass claim, it does limit recovery to those damages that occurred within the statutory period. See Hedgepath,
. Identifying the relevant fiber optic cable may be equally as problematic. According to Defendant, "there is no single source available to determine the exact location of [Defendant's] fiber optic cables.” [Moore Aff., Doc. # 84-1, at ¶ 23.] To further complicate matters, in addition to installing its own fiber optic cable, Defendant has entered into Joint Use Agreements ("JUAs”) with numerous third parties that allow those third parties to install their own fiber optic cable on Defendant’s facilities throughout South Carolina. [Id. at ¶ 10.] Defendant claims it is not aware of the location of fiber optic cable owned by third parties and placed in Defendant's rights of way pursuant to the JUAs. [Id.]
. This is a significant task. During a hearing on Plaintiff's Motion for Sanctions, Doc. #78, Plaintiff's counsel informed the Court that it had spent untold man hours and nearly $70,000 to uncover only a small subset of the easements ultimately provided to the Court.
. The distribution line easements further separate the case at bar from Fisher and the state cases upon which Plaintiff relies. Those cases do not appear to have dealt with the interplay between transmission line easements and the far more inclusive distribution line easements.
. Defendant claims that a title search is required to find potentially relevant distribution line easements. [Moore Aff., Doc. # 84-1, at ¶ 34.]