Michael McCarthy Arthur Waskow v. Richard G. Kleindienst

TAMM, Bеfore STARR, MIKVA and Cir- Judges. cuit STARR, Judge: Circuit This case arises “May out of the 1971 Day” throughout demonstrations Wash- ington, protest against D.C. in the Vietnam principal, ultimately disposi- War. tive, question presented by appeal whether the District Court abused its dis- cretion when it refused to this case as a class action. For the reasons that follow, we affirm.

This is of some considerable vintage, yet at this late date the entirely before us are proce- of a threshold dural nature. The was filed thirty-nine 1,1972, named May on seeking damages on behalf of themselves and at least other individuals. The officials, defendants were several federal including Attorney then General John Deputy Mitchell and then Attorney General Kleindienst, Richard the District of Colum- Tom, D.C., Washington, bia, K. Willard and several of its officials. The law- Yale-Loehr, Stephen whom challenged legality Francis M. suit of defendants’ response “May Day” policy. actions taken the Nation’s Southeast Asian Id. well-publicized plans demonstrators' to 111136-41. city Washington May close down the allegations These factual translated into According complaint, to the de- variety plain- causes of action: responding fendants’ actions tiffs asserted constitutional claims under “May Day” demonstrations violated the First, Fourth, Fifth, Sixth, Eighth rights and common constitutional law amendments, in addition to common-law plaintiffs putative the named and class arrest, tort claims such false malicious members. prosecution, process, conspir- abuse and gravamen complaint The was that 11111, acy. significantly Id. 2. Most federal and local law enforcement officials present purposes, the contained conspired illegal in engage had to tactics to allegations. class action Id. As H1119-23. “May Day” combat the demonstrations indicated, previously thirty-nine the named planned protest against in the Vietnam plaintiffs sought represent a class con- 23, Complaint Specifically, War. 24. M sisting of at least individuals whose complaint challenged decision, the ef- rights allegedly were violated the feder- early morning 3,1971, in May fective 3,1971. al May and local defendants on Id. Wilson, Jerry of then Police Chief pivotal To 1120.1 foreshadow events to Metropolitan Department, Police to sus- come, passing in we note here that as the pend procedures. proce- field arrest Those us, original comes to none of the normally required completion dures potential named repre- taking an arrest form and the of a contem- party sentatives is still a in this case. poraneоus photograph of each arrestee. The respective defendants filed their an- alleged Id. 25. Plaintiffs H that this sus- plaintiffs’ complaint August swers to in pension, procedures of field arrest led to procedural skirmishing 1972. After some illegal throughout thousands of arrests taking and the discovery, limited certain city May by Metropoli- officers of the defendants, of the federal namely Messrs. Department tan Police and the United Mitchell, Kleindeinst and then Assistant States Park Police.. Id. Plaintiffs Attorney Wilson, General Will moved for alleged used, also that the defendants had summary judgment ground on the responsible of, or were for the use exces- absolutely immune from dam- against putative sive force class members. ages arising lawsuits out of actions taken alleged

Id. 29. Plaintiffs further ITU capacities. in their official The District that members of the class had granted summary Court judgment as to illegally detained at more than ten 31, 1973, July these defendants on places throughout of confinement city. plaintiffs immediately ap- filed a notice of Id. 31. The conditions of confine- peal. On October obtaining ment District these locations were also stayed Court all challenged. Finally, proceedings further plain- Id. 111132-35. pending alleged appellate tiffs defendants had sub- resolution of the jeсted putative Approximately later, matter. class members to three months “cumber- processing procedures,” this court unpublished some such as issued an order dis- booking fingerprinting, missing appeal and to un- jurisdiction, want of prosecutions McCarthy Bork, (D.C.Cir. founded in order to v. No. 73-2023 criminal 14, 1974), penalize demonstrating against them for stay proceedings Jan. and the original plaintiffs sought represent 1. The also Court’s denial of certification with and, event, consist[ing] presently any problematic a "class of a undeter- this class it is persons, upon governing mined number of who informa- whether under law member of belief, subjected by standing will be defendants this class would have to seek declarato- Constitutional, statutory, ry injunctive City Angeles to violations of their relief. See Los rights...." Complaint Lyons, law and common f21. (1983). appear Appellants do not to contest the District thereupon expired by Upon the District District Court Court’s denial of class in the certification, (“the 266 individuals Abelman its own terms. intervenors”) promptly sought, but were McCarthy plaintiffs were un- While denied, leave intervene the lawsuit. persuade this court to determine able to appeal, this court On held that the Abel- federal defendants were whether granted man intervenors should have been immunity, plain- shielded absolute to intervene and leave to assert their sub- separate “May Day” case were tiffs in a stantive claims defendants. such a determi- subsequently able obtain Kleindienst, McCarthy v. appeal context of an from a nation in the (D.C.Cir.1977).2 1271-75 in- Abelman Wilson, Apton judgment. final requested tervenors also this court (D.C.Cir.1974), a case involv- F.2d 90-95 original determine plaintiffs’ ing defendants sued several of the federal motion for class certification had been McCarthy, rejected argu- court wrongly rejected but the court pro- ment that the federal defendants were ground invitation on the that the denial of by immunity, holding in- tected absolute class certification appeala- was not then an quali- entitled stead that Id. ble order. at 1276. light Apton, immunity. In of the Dis- fied Meanwhile, the federal defendants had summary judgment trict Court vacated the again summary judgment moved in the the McCar- as to the federal defendants Court, 23, 1979, May District and on 3, thy case July 1975. granted court this motion. In a memoran- opinion, dum the District Court held that 25, 1975, July years over three On after the federal defendants’ actions were within lawsuit, the McCarthy inception of this qualified scope of their immunity. plaintiffs for certification of a moved class holding, an alternative the court noted that comprised persons of all arrested аnd de- defendants, of namely two the federal May tained in the District of Columbia on Wilson, Messrs. Mitchell and were also en- 3, 1971. The District issued an order Court summary judgment titled ground on the denying class certification on September plaintiffs properly had never served 11, by Four reasons were advanced process upon them. for its the District Court action: With the federal defendants out of the (1) Motion for Certification [Plaintiffs’ parties case as of undertook set- filed, (2) timely of a Class was not such negotiations ultimately proved tlement certification would at this late date fur- successful, resulting in the dismissal of the delay ther the action and necessitate fur- “May Day” original thirty- claims of all the (3) discovery, ther this action on the mer- nine named and all in- Abelman its does not lend itself to such class ac- tervenors. When it became clear that nei- certification, (4) particular- original plaintiffs ther the nor the Abelman plaintiffs’ ized facts in each involved [sic] adequately protect intervenors could preclude and detention arrest action class, putative interests of the another treatment. group (“the of class members Kleindienst, McCarthy v. C.A. No. 844-72 “appellants”) Waskow intervenors” (D.D.C. 11, 1975) Sept. (reprinted in Joint sought leave to purposes intervene for 133). Appendix, appealing the denial of class certification. court held that the Abelman intervenors’ 2. This contested whether full intervention should be right certain claims permitted, to assert substantive or whether defendants had made a could be limited if defendants were defendants showing prejudice sufficient to warrant limit- specifically prejudice. to demonstrate That able ing rights the Abelman intervenors’ to assert could, held, demonstration the court be made By certain substantive claims. virtue of a su- showing original plaintiffs’ com- settlement, pervening the District Court never plaint provide adequate regarding did not notice had occasion to resolve the extent of the Abel- types of claims asserted the intervenors. rights. man intervenors’ intervention remand, hotly parties On F.2d at 1275. Although 1983) originally (adopting the District Court de- abuse of discretion stan- intervene, nied leave to this court subse- govern dard to district court dismissals quently McCarthy that denial. (“A reversed v. pursuant 19(b)) to Fed.R. Civ.P. district Kleindienst, (D.C.Cir. July No. 81-1738 judge, arena, closer to the is often better 1982) . On June the District Court appellate panel suited than is an survey on remand entered an order that allowed practicalities litiga- involved in the intervention, simultaneously but dismissed tion.”) (quotation omitted). While class group easе. It is thus this latter manifestly certification decisions are too maintaining intervenors who are the in- important to appellate be insulated from appeal. stant review, appellate may an court reverse a

district court’s denial of class certification only if the applica- denial resulted from the II tion of incorrect if criteria or it consti- challenge The Waskow intervenors tuted an abuse of discretion. Bermudez v. District Court’s decision not to Department United States Agricul- aas class action. Our consideration cert, ture, (D.C.Cir.), challenge of this appropriately under- only against backdrop prop- taken of a (1973); see also National As- understanding respective er roles of Health, sociation Mental Inc. v. Cali- appellate trial and courts in class certifica- fano, 717 F.2d (D.C.Cir.1983); tion decisions. Hughes Helicopters, Inc., Moore v. is, course, (9th Cir.1983). It well established that F.2d This deferen- principal purpose of the class-action tial appellate standard means that an court mechanism is efficiency to advance the and may well affirm a district court’s decision economy multi-party litigation. See, of with to class certification vel non e.g., Telephone Company General though appellate even court would of have Falcon, 147, 155, Southwest v. 457 U.S. differently ruled in the first instance. See 2364, 2369, (1982) 102 S.Ct. Shroder v. Suburban Corp., Coastal 729 (quoting Yamasaki, v. 442 U.S. Califano (11th Cir.1984). F.2d 1371 at 1374 682, 701, 2545, 2557, 99 S.Ct. 61 L.Ed.2d It elementary is prerequisites that four (1979)); 176 Pipe American & Construc must be satisfied for a class action under Utah, 538, 553, 414 Co. 94 S.Ct. 23(a): “(1) Rule the class is so numerous 756, 766, (1974). 38 L.Ed.2d 713 It neces joinder of impractica- all members sarily follows, therefore, courts, that trial ble, (2) questions there are law fact charged the orderly management with class, (3) common to the the claims or de- litigation, uniquely are well situated to fenses of representative parties are make class certification decisions. See typical of the claims or defenses of the Burns v. United States Railroad Retire class, (4) representative and parties will Board, 189, (D.C.Cir. ment 701 F.2d fairly adequately protect the interests 1983) (court appeals declined to make 23(a). the class.” Fed.R. Civ.P. In the class certification decision in the first in- case, present it is conceded that the numer- “appellate stance pro- because mode of osity requirement turn, is satisfied. We ceeding compatible designation is not then, to the remaining requirements. three class”); management of a Oil cf. Gulf prerequisites Those interrelated Bernard, sеrve as Co. v. 101 S.Ct. “guideposts” 2200, determining (1981) (“a dis- respective sufficiently claims are duty trict court has similar both broad authority that a class action to exercise control will serve as an over class efficient action”); litigation control Standardbred Own- device that adequately Cloverleaf protects ers Association v. National Bank the interests of absent class mem- (D.C.Cir. Falcon, Washington, 699 F.2d bers. supra, 457 U.S. at 157-n. In light 2371 n. 13.3 Notwithstanding considerations, brought fact that this ease was as a dam- appellants argue that it was an abuse of action, however, ages dispositive class discretion for the District rely Court to certification issues are whether the com- upon the untimeliness of the class certifica- “predominate mon of law or fact tion motion denying as a reason for it. We any questions affecting over only individu- agree. cannot members, al a class action is [whether] Initially, we observe that Local Rule superior to other available methods for the l-13(b) Court, of the District which took adjudication fair and efficient of the contro- August effect on requires putative 23(b)(3). versy.” Fed.R.Civ.P. move class certifica Essentially, the District Court relied ninety days tion within filing after upon concluding two considerations in complaint. utterly reject While we present case should not be certified as suggestion 13(b) that Local Rule directly 1— First, a class action. the court found that governs case, us, such as the one before plaintiffs’ motion for class certification was filed date, before the rule’s effective untimely and that unwarranted further de- McCarthy Kleindienst, lay discovery and massive would necessari- (D.C.Cir.1977), 1273 n. 1 it would manifest ly Second, from result certification. ly be within the District Court’s discretion court found that this case was not amena- to refer to the rule as a non-binding bench ble to resolution on a classwide basis in mark which the timeliness of a light particularized of “the facts involved class certification motion could be meas plaintiffs' in each arrest and deten- [sic] ured. Dudo v. tion____” Schaffer, 91 F.R.D. Cf. We now examine these determi- (E.D.Pa.1981) (although the local rule governing nations under the standard of requiring class certification motion to be review, as set forth above. filed within days was not directly applicable, the court found Ill plaintiffs’ delay month violated the IIV2 A “spirit” rule), reh’g The first rationale advanced (E.D.Pa.1982). Indeed, F.R.D. 524 District Court delay was that further court has noted l-13(b) that Local Rule would be occasioned treatment of this “implements policy” already behind the case as a plain class action. At the time rеquirement extant 23(c)(1) of Fed.R. Civ.P. initially certification, tiffs moved for class that class certification decisions be made already case was over years three old practicable.” “as soon as Black Panther and defendants ‍‌​‌‌​‌​‌​‌​‌​‌​‌‌‌​‌​‌‌​​​​​‌‌​​​​​‌​‌​​​‌‌​‌​‌‌‍still had no idea whether Smith, Party v. (D.C. 1279 they facing thirty-nine plaintiffs or at Cir.1981), mem., vacated 458 U.S. 7,000 plaintiffs. least Furthermore, al (1982).4 S.Ct. 73 L.Ed.2d 1381 though the case pending had been for over time, years three at the view, the case was virtu 23(c)(1) our Fed.R.Civ.P. ally square proceed at one with to l-13(b) and Local upon Rule rest at least ing to an eventual determination on the policies. two fundamental The first is that merits. defendants are entitled to ascertain at the prerequisite, 3. The plaintiffs’ reinstated, fourth in addition to ad- dered that claims be it dressing general considerations outlined upheld in the District Court’s denial of class certifi- text, compe- "also raises concerns about the grounds. cation on untimeliness Id. at 1279. tency of class counsel and conflicts interest.” Supreme subsequently The Court vacated this Falcon, supra, 457 U.S. at n. 157-58 102 S.Ct. decision, court’s and ordered that the case be at 2371 n. 13. dismissed. 102 S.Ct. Thus, Supreme L.Ed.2d 1381. Court’s action Party, In Black Panther this court reversed a 4. vacating entirely the case was unrelated to upon district court dismissal of a lawsuit based the class certification issue. plaintiffs’ respond interrogatories. refusal to to Although 661 F.2d at 1247. the court thus or- 395, 404-05, practicable they Rodriguez, earliest moment whether Inc. v. 431 U.S. known, facing 1891, 1897, (1977), will be limited number 5.Ct. 52 L.Ed.2d 453 plaintiffs identifiable or whether will finding that the record contains no facing larger instead be a much mass of plaintiffs adequately repre- were unable generally plaintiffs. unknown Fundamen- Nevertheless, sent the class. we believe it fairness, orderly tal as well as the adminis- was within the District broad dis- Court’s justice requires tration of that defendants rely upon cretion to the untimeliness of the indefinitely into court not remain haled un- motion, class certification and the unfavor- certain as to the bedrock fact of consequences delay, able caused as parties the number of individuals or grounds denying for certification. But we they may ultimately held whom liable not, not, need and do decide whether these money damages. particularly for That is sup- considerations alone were sufficient to where, here, true the defendants were port the District Court’s denial of certifica- facing thirty-nine plaintiffs either named tion, inasmuch as the court below also a class of almost two hundred times the grounded upon its decision its view Second, original plaintiffs. number оf the plaintiffs’ claims were not suitable for reso- n judicial these rules foster the interests of lution on a classwide basis. It is to this efficiency, as well as the interests of the consideration that we now turn. parties, by encouraging proceed courts to controversy merits as soon as That, B bottom, practicable. is a matter of described, simple justice. previously As The second rationale advanced plaintiffs’ three-year delay moving particular District Court was that the indisputably class certification thwarted ized facts plaintiff’s involved in each arrest policies.5 precluded and detention maintenance of a damages. class action for In order to as recognize party’s delay We that a in mov- ground sess this ing for the District Court’s generally for class certification has denial, analyzed upon with reference we are called to examine ade- quacy-of-representation requirement, see, causes of action asserted e.g., Freight System, East Texas Motor on behalf of the class.6 We must Appellants' latter-day explanations respond 5. to defendant's motions to dismiss the case, case, original plaintiffs' delay moving for certifica- to transfer and to dissolve the woefully unconvincing. court), dismissed, Essentially, three-judge appeal tion are 430 U.S. appellants argue (1977); that it would have been 97 S.Ct. L.Ed.2d waste- Black original plaintiffs Party, supra, (citing ful for the Panther 661 F.2d at move for certifi- approval propriety point). cation while the of the District on this Court’s Coffin grant summary judgment in favor of the Appel- Appellants argue federal defendants was still unsettled. may seem to that a court decide, attempt support delay by rely- lants also in the context of a class certification determination, ing upon stayed the fact that the District Court what must demon- proceedings pending plaintiffs’ prevail all in the case strate in order to on their theories appeal summary judg- liability. Appellants, (citing to this court from the Brief for at 21 terms, however, By 156, 177, Jacquelin, ment order. its own Eisen v. Carlisle & stay (1974)). District Court’s was in three effect for thirty-six delay pertinent the aspect holding months at issue. Fur- of the Eisen is that of of thermore, uncertainty respect the with authority courts lack the to conduct a fact-based grant summary judgment only preliminary hearing involved regarding the the merits of the light stage. Nothing federal In of the fact that the defendants. lawsuit at- the class certification going against precludes scrutinizing class was to be the same both the in Eisen a court from defendants, plaintiffs’ legal Columbia fеderal and the District of causes of action to determine simply awaiting they there was for no sound reason are suitable for resolution on a uncertainty moving contrary, removal before scrutiny the of this classwide basis. To the such Secretary ordinarily ingredient certification. v. an essential of the deter- Cf. Coffin Health, 953, Welfare, F.Supp. proceed Education and 400 mination whether to allow a case to (D.D.C.1975) court) See, (three-judge e.g., Coopers Lybrand & n. 19 a class 956-57 action. & v. 463, 12, (plaintiff's timely 2454, Livesay, failure to move for class certi- 437 & U.S. 469 n. 98 S.Ct. 12, by (1978); was excused the & fication asserted need to 2458 n. Moore v.

1413 nied, 916, 3146, the District Court 438 determine whether 98 S.Ct. 57 then Chesapeake deciding that a Faniel v. (1978); in abused its discretion Co., Telephone not the best method for & Potomac class action was 147, 404 A.2d controversy resolving this because v. (D.C.1979) (quoting Tocker Great 150 puta- questions common to the and factual Co., Atlantic & Tea 822, 190 A.2d Pacific predominate over those tive class did not (D.C.1963)). presumed 824 Unlawfulness is only mem- affecting individual place in cases where the arrest took with- bers. Dellums, supra, a out warrant. 566 F.2d Gandy, 175-76; District Columbia v. at Although original plaintiffs the asserted on action, 896, (D.C.), other of causes of these causes 450 A.2d 900 number modified devel- grounds, reh’g en adequately (D.C.1982), of action have never been A.2d 414 458 denied, banc oрed; day, appellants to this are somewhat (D.C.1983). 466 A.2d 851 The vague legal foundations for their as to the may presumption defendant then rebut this liability. examine theories of We will what demonstrating unlawfulness that appear principal the causes of to be two probable cause existed for the arrest. Del- present case: action asserted the false lums, supra, 566 F.2d at Gabrou v. 175; process.7 arrest and abuse of Stores, May Department 1102, 462 A.2d (D.C.1983) (per curiam). 1104 It is thus arrest claim is as While false apparent liability that determination in the Fourth serted under both Amendment present likely upon case is to turn law, requisite and the common ele highly proof, individualized inasmuch as plaintiff are that ments both cases probable may cause have existed against will for the was arrested his Powell, unlawful. Dellums v. arrest of arrest some class members was but cert. de- have been (D.C.Cir.1977), lacking 566 F.2d 175 to others.8 Inc., 480; Hughes Appellants’ Helicopters, supra, arguments against proposition F.2d at 708 R.R., First, unconvincing. Line 540 F.2d appellants argue Doctor v. Seaboard Coast are (4th Cir.1976). appellees may some of the District of Columbia collaterally estopped attempting from to es- conspir- probable 7. The also contained broad tablish cause as a dеfense reason of acy allegations against appellees. These con- Murphy, the decision them in Sullivan v. however, spiracy allegations, do not set forth (D.D.C.1974)(on an F.Supp. remand from action; instead, cert, independent cause such alle- (D.C.Cir.), F.2d gations underlying are sustainable after an (1973)). 38 L.Ed.2d See tort claim has established. Halberstam arrests, Sullivan, this court held that certain Welch, (D.C.Cir.1983) 705 F.2d ‍‌​‌‌​‌​‌​‌​‌​‌​‌‌‌​‌​‌‌​​​​​‌‌​​​​​‌​‌​​​‌‌​‌​‌‌‍including May those made on were ("Since liability conspiracy depends for civil presumptively subject invalid a demonstra- act, performance underlying of some tortious remand, validity tion of on remand. On actionable; conspiracy independently the rather, is not District of Columbia defendants were unable to establishing it is means for vicarious cause, probable demonstrate and the arrests tort."). liability underlying for the In the con- accordingly Contrary were declared invalid. case, present example, text of the alleging individuals here, however, appellants’ arguments Sullivan prove false arrest must preclude should not be read to the District of unlawfully conspir- arrested in order for appellees attempting justify Columbia from cognizable. acy claims to become We therefore solely the arrests. Sullivan was a suit limited suggestion, do not understand the dissent’s (i.e., equitable expungement relief of arrest reasoning Dissenting Opinion that our records); present stakes case are conspiracy allega- would favor resolution of the given money much different the claims for dam- a classwide basis while at the same tions on ages. greater litigate incentive to in this resolution of the time disfavor classwide false strongly against giving case militates Sullivan Contrary ap- arrest claims. dissent’s See, preclusive e.g., Depart- effect. Otherson conspiracy allegations proach, cannot be Justice, I.N.S., ment (D.C.Cir.1983). 275-76 underlying separately viewed tort from present case. If the District Court claims in Appellants’ argument second is that the Sulli- deciding against did not abuse its discretion appellees’ van remand at least indicates that underlying tort classwide resolution of claims, probable may contention that cause be estab- complaint also con- the fact that the plausi- lished as a defense in individual cases is allegations indepen- conspiracy is not an tained theory ble in but not in accord with the actual for reversal. dent basis 1414 (4th see also W. Prosser, of Torts 856 primary cause of ac

The second Law 1971). tort, tion, ap ed. The essence of how- emphasized by onе most and the judicial proceed- ever, process. pre lies in the misuse of of To pellants, is for abuse ings. See, e.g., Foothill Industrial Bank claim, appellants vail must demon on this Mikkelson, v. 748, (Wyo.1981); (1) 623 P.2d 758 appellees were motivated strate that: Markets, Inc., v. Brockton Public Jones bringing legal by purpose an ulterior 484, them, (2) 387, pro 369 340 N.E.2d 485-86 proceedings against Mass. Barquis v. Merchants Collection (1975); perversion “a of the ceedings resulted in Association, 94, 745, Cal.Rptr. 101 achievement of some 7 Cal.3d judicial process and 752, 817, (1972). prose in the 496 P.2d 824 While abuse contemplated regular end not v. Mar Morowitz process may conceivably thus charge.” of claims be cution vel, 196, susceptible on a (D.C.1980). The of resolution classwide ba- A.2d 198 423 alleged is sis cases where it is that defend- probable cause not a defense existence of process part Chatterton judicial claim. ants abused the as process to an abuse Janousek, scheme, v. 719, (D.C.Cir.), problem a common in the 280 F.2d 721 cert, denied, 902, 235, present many 81 5 is that it is unclear U.S. S.Ct. how 364 City v. Williams (1960); allegedly were class members vic- L.Ed.2d 195 Co., 534, (D.C.1963); judicial Stores timized process.9 A.2d 537 abuses of 192 detentions, however, argument, lawful here. This arrests and warrantless ar- circumstances ignores appellees may entirely that be able to rests and effectuated inde- the fact detentions discovery help pendent judicial process sup- that would establish could conduct not finding importantly, port origi- process More a their defenses. an tort claim. The abuse demonstrated, ultimately unable appellees plaintiffs that would be nal never and to this support demonstrate, appellants defens- establish facts sufficient date are unable how impermissible stage actually es at many putative judi- would be class members had proceedings. Jacquelin, v. process See Eisen Carlisle & cial them. invoked 177, 156, S.Ct. 40 94 approach argues The that our with dissent (1974) (court may a L.Ed.2d not ‘‘conduct 732 process claim to the abuse of "drastical- preliminary inquiry into the merits of a suit in ly proof alters burden of certifica- class may it determine whether be main- order to questions." Dissenting Opinion at 1421. action"). properly tained as a class Courts have This difficult criticism is somewhat to fathom preclude recognized does not that Eisen consid- seeking party certifi- inasmuch as it is class beyond pleadings to de- eration of matters establishing cation that bears the burden of defense, assuming a claim or termine whether requirements. Eggleston Chicago class action merit, susceptible its of resоlution on a class- 103, Journeymen Local Union Plumbers’ No. 657 Devices, See, e.g., Sirota v. wide basis. Inc., Solitron cert, 890, Cir.1981), denied, (7th F.2d 455 cert, 566, (2d Cir.), denied, 570-72 673 F.2d 1710, 1017, (1982); U.S. 102 S.Ct. 72 L.Ed.2d 134 86, 838, S.Ct. 74 L.Ed.2d 80 and 459 U.S. R.R., Doctor v. Seaboard Coast Line 540 F.2d 213, 908, (1982); U.S. 103 S.Ct. (4th 1976); generally Cir. 3B J. 706-07 Eggleston Chicago Journeymen Lo- Plumbers' Kennedy, Moore & Moore’s J. Federal Practice (7th F.2d cal Union No. Cir. 23.02-2, (2d jf 1982). ed. at 23-96 The dissent’s cert, 1981), employed be recommendation that subclasses (1982); Doctor v. Seaboard Coast deserving to this be issue would serious con- 1976). R.R., (4th 707-09 Line Cir. suggested sideration had it been Court; to the District however, strongly disagree, We with our dis- opinion manifestly it was not. Our Dissenting colleague’s suggestion, Opin- senting precluding should not be read as creative uses ion the District Court could have judges attempting fairly of Rule 23 district Eisen, concluded, "probable consonant complex efficiently litigation. resolve signifi- be cause could demonstrated for [not] believe, however, appellate We do not that an the 8000 arrests at issue." cant number of court, years inception litiga- thirteen after probable existed individual cause Whether tion, creating should be in the business of likely the central issue in the arrests would suggested by classes and subclasses never case; of this it would liability phase of trial parties seeking certification. proper for the Court to District hаve been also contained claim that the of its certification context class conclude in the complained activities of were taken in order to probable defense cause determination penalize putative class members for the exercise lacked merit. right of their First Amendment demonstrate. claim, appears many puta- Such a somewhat akin example, it while to the com- while 9. For alleged process un- monlaw claim in that victims of abuse of tive members

1415 presented determinations, examination now turn to an where initial We non, vel clearly erred liability the District Court such as the issue of of whether turn See, e.g., determining upon highly that a class action was individualized facts. Brands, Inc., Windham American resolving plain superior method 565 cert, apparently 59, (4th Cir.1977) (en banc), It is conceded tiffs’ claims. F.2d 65-72 denied, may vary greatly among pu damages 968, 1605, that 435 U.S. 98 S.Ct. 56 Appellants argue, (1978). tative class members. precisely L.Ed.2d 58 That is however, damage that the mere fact that here, where situation arrests were made in ultimately require awards will individual numerous locations the District of Co- by is insufficient ized fact determinations lumbia and where the duration and condi- preclude class certification. We itself greatly.10 tions of confinement varied We should, course, agree. A district court are therefore unable to conclude that it has ordinarily consider such well-established demonstrated, clearly in a manner bifurcating methods as the trial into liabili overturning sufficient to warrant our ty damages phases denying before cer District Court’s determination to the con- See, e.g., Hill v. Elec Western tification. trary,11 that superior a class action was the cert, Co., tric 381, (4th Cir.), F.2d resolving method for controversy. this denied, 981, 318, 459 U.S. 103 S.Ct. University Samuel (1982); L.Ed.2d 294 IV Pittsburgh, (3d 995-96 apart Even from the class certifica Cir.1976); Developments in the Law— issue, ground there is an additional Actions, Class 89 Harv.L.R. 1491-92 upon which we affirm the District court’s (1976). dismissal of the case with hand, Appellants On the other serious drawbacks to federal defendants. first sought the maintenance of a class action are leave to intervene in this action imper 11. The need to defer to a district court’s class must establish that defendants had an purpose seemingly legitimate missible behind greatly empha- certification decision has been actions, is broader than the common-law throughout claim opinion. sized is It this factor respect, conceivably in one because it would present that makes our decision in the beyond implicating judicial extend actions Powell, entirely consistent with both Dellums v. hand, cert, process. On the other the First Amend (D.C.Cir.1977), denied, 566 F.2d 167 ment claim would at the same time be narrower (1978) 98 S.Ct. claim, than the common-law inasmuch as de (D.C.Cir.), Murphy, and Sullivan v. cert, 478 F.2d 938 conceivably fendants would be able to avoid 414 U.S. 94 S.Ct. liability demonstrating would have (1973), previous "May Day” L.Ed.2d 125 cases in challenged taken the actions even absent the upheld which this court district court decisions impermissible purpose. Healthy City Mt. Bd. Cf. certify impor- a class. While there are other Doyle, Educ. v. of 576, tant distinctions those between cases (1977) (defendant may re present (e.g., one the class in Dellums consisted prima legitimate but facie case otherwise only persons steps of those arrested on the penalize plaintiff action was taken to for exer Capitol, group the U.S. a much more cohesive right by demonstrating First cise of Amendment approximately than the class that it would have taken the same action even throughout members here who were arrested consideration). impermissible absent the city; "(b)(2)” brought Sullivan was as a class possible existence of this individualized defense involving equitable action relief rather militates resolution of this cause of ac “(b)(3)” action), damages than as a we tion on a classwide basis. significant view the most distinction as the fact that in neither Dellums nor Sullivan was the upon pro- Appellants’ the abuse of reliance required uphold by reversing court a class support argument cess claim in district court’s determination. We are no certifying erred in not a class is District Court holding today means that it would have been extremely unconvincing. supra See note 9 case, certify error to a class accompanying justified We would not be text. Instead, question obviously not before us. we reversing simply District Court because simply holding are that the District Court did many causes of action asserted in the one of the ample declining not abuse its discretion in conceivably present common could present a class under the circumstances sub-group within questions as to an undefined here. putative class. the overall 1981, the began it tervenors. defendants during Spring the when to finally an end appear impending “May settlements able to envision to this that would the preclude Day” litigation when District of original and the Colum- adequately rep- from bia entered into settlements with ap- Abelman intervenors these proximately resenting putative seeking appel- class. In to 300 individuals. While clearly parties purposes this action for lants were entitled to intervene become to denial, point, Airlines, appealing certification that see the class United Inc. v. McDonald, appellants copies of their served interven- S.Ct. (1977), upon Columbia, right District of such a tion motion of inter- parties defendants. vention in who federal, slept but not the After the favor of have rights years them to inter- on their other for ten District Court denied leave vene, appellants appellate extraordinary. circumstances, their these served Under upon require it challenging briefs the denial the Dis- is not unfair to that such interve- Columbia, clearly federal, unequivocally trict of not the de- nors but indicate the parties against until entire fendants. It was not over two universe of whom years they original sought. Every their after filed inter- intervention is indication in motion, appellants present expressly vention that that latter-day case was pursue manifested an to litigants, succeeding intent claims in re- against the federal defendants. sponsibilities predecessors, long- of their no er pursue against intended to claims beyond persons It is that seeking cavil to Thus, regardless federal defendants. ongoing intervene in an action must serve a appellants’ respect inactions with copy upon of their to intervene motion to the federal defendants resulted from a parties 24(c). to the action. Fed.R.Civ.P. conscious instead decision or resulted from procedural While that recognizing defects oversight, the federal defendants were en- in connection with intervention motions titled to assume 1981 that after would court, generally should excused be longer no to in have answer a court of law C. Courts 507 n. Wright, Federal Law of May ed, actions taken in (4th 1983), view, appellants’ in our two-year inaction to feder- persuaded We are that it would be a sufficiently grievous al defendants was to injustice appellants manifest allow now warrant of the dismissal federal defend- against to assert their claims the federal ants from the case. Accordingly, defendants. we affirm the District Court’s of the dismissal case with We are explana- able to envision two respect to the federal defendants on this appellants’ tions for consistent failure to ground alternative well. papers serve their upon intervention federal appel- defendants. first is that V lants made a conscious decision 1981 not reasons, For foregoing we affirm the pursue against their claims the federal District Court’s decision possible explana- defendants. The second class. We hold apрellants further appellants’ failure, tion is that consistent properly against failed to intervene as two-year period, over a to serve the federal Accordingly, federal defendants. the Dis- papers defendants with intervention was trict Court’s dismissal of the case is oversight. mere hypothesis, Under either dismissal would Affirmed. years

be almost ten warranted. For after MIKVA, Judge, concurring Circuit allegedly gave the actions that rise to their part part: dissenting slept injuries, appellants on their individual rights. period, same time During that the Whatever said of hard can be cases is equally pertinent defendants were forced to defend to old cases. This dis- thirty-nine original pute, plain- vintage claims of the is before this court on and, questions yet tiffs the 266 after Abelman in- that are at the threshold Force, politan ‍‌​‌‌​‌​‌​‌​‌​‌​‌‌‌​‌​‌‌​​​​​‌‌​​​​​‌​‌​​​‌‌​‌​‌‌‍might as it be find a Police an stage. Tempting issued order sus- swept, might rug under pending procedures. which the field arrest This I from I think it makes law. dissent bad suspension May remained effect until majority’s opinion which part 1971, at a.m. 5:40 right proceed as a parties denies the During period, nearly people wrong court is in hold- class. believe the Having foregone were arrested. the use of ing of law and fact com- however, procedures, po- formal arrеst mon to the members any by lice lacked records which estab- sufficiently predominate in this case do not probable Accordingly, they lish cause. ini- affecting only over individual special booking procedures tiated under class certification. members as to warrant attorneys which the Depart- volunteer from explain it is my dissenting, To basis ment of Justice were instructed to: develop necessary litiga- the facts of name, in in somewhat more detail than found the physical record address and majority’s opinion. the description of each arrestee. In the ‘Original Charge’ marked they blank piece The another of the case involves were instructed to enter the words ‘Dis- by response government troublesome taken orderly Conduct’. At their initial brief- “May Day” officials to the demonstrations ing, they given had been list containing a the War in The Vietnam 1971. names, badge the and unit numbers des- procedures” by “field the arrest referred to ignations police of seven officers. majority designed Under were to deal with mas- Officers,’ caption Arresting in the ‘Name of sive civil disorders the District of Colum- procedures contemplated bia. These told to they were insert ‘one name taken arresting seven’; after an arrest the officer would seriatim from list of and [this] complete filing in by a Field Arrest Form specifically told leave blank name, number, badge officer’s unit and portion of the form which the arrestee, identity of the circum- circumstances of arrest were to be re- stances of A of the photograph the arrest. corded. arresting together arrestee and the officer Murphy, Sullivan was also There- to be taken the scene. (D.C.Cir.1973). arrest, Following their after, the arrestee would be transferred to crowded, long arrestees were some for as police other personnel for removal from seventy hours, into detention centers arresting scene booking, allowing city. around the duty. officer to procedures return to The In a class Murphy, Sullivan action provided also expeditious post-arrest brought behalf on of all arrested those processing, completed in which the arrest forms, without field arrest declared all we photos forms accept- and Polaroid would be nearly presumptively these arrests by ed proba- the local courts as evidence of amendment; unlawful under the fourth testimony ble cause in lieu of direct photographs without field arresting arrest officer. forms, police simply could as a booking expedited With this arrest and general matter probable establish cause. procedure place, Washington Police noted, however, We probable that if cause Department faced antiwar demonstra- proven any could particular be case on early In April May, tions of late remand, particular arrest would be demonstrations, of these stages the initial government lawful. The on stated remand 3,1971, prior May Department the Police showing probable that “an affirmative hundred arrested several demonstrators cause not be made in [could] city. so, they throughout doing pertinent cases” and therefore final order initially proce- adhered to the field arrest by the was issued declaring district court At dures described above. 6:23 a.m. 3,1971, hov/ever, F.Supp. 867, all the arrests invalid. May Jerry defendant Wil- (D.D.C.1974). son, Washington Every then Metro- 868 member Chief of § (1972). class in this case was a member of at 538 To determine wheth- therefore, the class Sullivan and hence the arrest er class appropriate, treatment is every presump- individual in necessary the class is it is to look to the realities of the tively Against background, whether, unlawful. prac- and to assess as a presented I now turn to the issues tical matter rather than as an in- abstract this case. quiry, class treatment is the most efficient conducting

means of the action. “The I. proper determining standard [for action should be under that, certified] agree majority while 23(b)(3) pragmatic Rule is a one.” 7A Id. procedural defects in intervention motions § 1778, at 53. excused, generally should in the context of this case the failure to serve the inter- majority recognize seems to vention motion on the federal defendants principles in explaining its conclusion that years justifies dismissing for two the case class certification decisions are to be re- against these defendants. viewed under an abuse of discretion stan- majority dard. Yet the completely turns majority Because the concludes that its back on principles a mere two against the federal defendants should pages later when it states that a court is ground, be dismissed on this I assume that whether, foreclosed considering from as a majority’s discussion about the suitabil- matter, practical individual defenses to the ity applies of class treatment only to likely action are to be real factors at trial. against claims the District of Columbia and Maj.Op. Instead, at majori- See n. 8. as the its local officials. Were this in- discussion ty it, would long seem to have as such tended to cover the federal defendants as defenses in theory exist and as an abstract well, particularly troubling, it would be for possibility, they enough are to allow a trial indisputable it seems the dominant judge to that, refuse to an action question to the federal defend- viewed, pragmatically would best be run as ants would they be the extent to which a legal class suit. There is logical no were involved in and can respon- be held impractical basis for such an result. for sible the actions of local officials on 3,May question, view, my That To questions determine whether common would make class appropriate treatment predominate a judge trial inevitably must against for the suit the federal defendants. make some effort to assess the realities of I do not read majority opinion as ex- a lawsuit assay and to the issues that are pressing any view on the merits of a class likely actually to be in contention. For against defendants, suit the federal how- example, if several defenses are raised to a ever, and myself therefore address to complaint, class apply some of which to the allegations the class against the District entire class and some of which are more and its officials. individualized, judge the trial will of neces- sity have to make judgment some on which

II. defenses the lawsuit likely is to turn. That The class action mechanism set forth in judgment obviously require will a realistic the Federal Rules of appraisal Civil Procedure is an and estimation of the number of device, intensely practical designed, as the particularized individuals to whom the de- notes, majority to foster efficient and eco- likely fenses are apply. products In a Indeed, multi-party litigation. nomical liability class action drug suit a very purpose manufacturer, major instance, revisions made for the manufac- in 1966 to the class action rules may was to turer drug assert that the does not concep- “substitute functional tests for the cause the disease may at issue and also practice tualisms that argue many characterized under patients knew of the rele- Wright the former rule.” dangers C. & A. Mil- vant at the time took the drug. If the individual defense would be a ler, Federal Practice Procedure fact, precedent In defense, judge surely extent there is trial complete question, supports on this it the view that estimating, before he de- from not barred inquiry into the actual facts of a case is question, certification how the class cides ques- proper to determine whether common many individuals could be vulnerable Telеphone General predominate. tions procedural A mechanism de- that defense. Falcon, Company the Southwest v. can- pragmatic functional and signed to be U.S. hostage by defendant who held a not be (1982), the Court stated that a sufficient merely possibility theoretical raises employer indication that an used similar apply defenses will to all that individualized hiring means to discriminate both plaintiffs. promotion justify single decisions would a potential action on behalf of both class such a also no basis There is Id. potential promotees. hirees Jacquelin, & Eisen v. Carlisle result. corollary, 102 S.Ct. at 2371. As a when 40 L.Ed.2d S.Ct. plaintiffs claim class that some of the same not majority, does (1974), relied hiring decisional bases were used for a court can- proposition stand decisions, promotion a court will have to realistically appraise a overlap the extent evaluate to deter- common determine whether mine whether the common factors are Eisen ones. individual over predominate strong enough justify single class ac- cannot conduct merely that a court holds promo- tion on behalf of both hirees and merits and hearing” into the “preliminary Similarly, tees. to determine whether pre- likely to plaintiff is conclude standing injunctive have to seek shifting vail on the as a basis for injuries, relief for future courts must as- providing no- the defendant the cost sess real-world terms likelihood that tice to absent class members. Eisen thus subjected will be in the future requiring from prevents a district court City complained-of conduct. See to the pay to to a class action defendants Angeles Lyons, Los any definitive costs of the before (1983). S.Ct. forbidden, liability simply nothing has There is defendants’ or un- resolution usual, in surely Eisen does not the need for a court to look into made. But been the actual facts of a in an effort to determining how prevent a court from questions resolve threshold such as wheth- by certain many individuals will be affected er predominate common over in- gauge, in an to effort not whether defenses dividual ones. prevail, but whether common the class will merely individual ones. questions transcend Moreover, already this circuit has con- Strong v. Arkansas Blue Cross & See virtually question fronted the identical re- Shield, Inc., (E.D.Ark. 87 F.R.D. 496 Blue garding commonality presented in this case that, 1980) appropri- (holding while it is not way contrary and resolved it in a determining to consider the merits ate In Dellums majority’s disposition today. certification, admissibility of all evi- Powell, (D.C.Cir.1977), 566 F.2d 167 has relevance to the merits is dence which 2,000 people class of somе who had been purpose if it is relevant to the not barred during protest arrested an anti-war at the supporting ‍‌​‌‌​‌​‌​‌​‌​‌​‌‌‌​‌​‌‌​​​​​‌‌​​​​​‌​‌​​​‌‌​‌​‌‌‍the existence of a refuting or alia, from, inter Capitol damages sought Corp. Dura-Bilt v. Chase class); see also Chief James Powell of the United States (S.D.N.Y. Corp., 89 F.R.D. 87 Manhattan Capitol opposing Police. class certifica- 1981) (if tion, there is no chance at all that a pointed Chief Powell to several record investor would have been able reasonable facts which showed that some of the dem- fraud, alleged plaintiff need engaging to discover an had onstrators unlawful diligence and due dili- establish due conduct at the time of the arrest —four to not climbing lampposts, an individual one gence is thus removed as five had been possibly pre- writing on the of fact which could two had been walls question Capitol, group and a of around 100 had questions). over common dominate disobeyed disperse. well-accepted dealing orders to After a real- is a means for evidence, appraisal rejected istic of this we present one, actions similar to the then but argument possible existence of very asserts that a different situation is pre- these defenses should individualized when, presented as in the false arrest clude certification. Chief Powell’s ob- claims, the liability issue of vel non turns theoretical,” said, jections “largely we upon highly individualized facts such as because it was clear that at the time of the probable whether cause for the arrest ex- identifying” lawsuit he “had no means of purported isted. I view this distinction as any individuals who had been al- formalistic, highly viability for it makes the legedly lawfully. arrested Id. at 191. Del- depend of a class action on whether the clearly rejected thus majority’s lums very same issue is treated as a defense to position impermissible pierce it is the action or damage mitigation as a meas- theoretical individualized defenses evalu- emptiness ure. The of this distinction is ate the realistic likelihood at trial demonstrated the fact that the com- practice outweigh inwill the issues com- plaint counts, conspiracy also includes mon to the class. which it is no defense to assert that the case, Applying principles to this proper defendants also had motives for conclude that the class should have been conduct, Welch, see Halberstam v. claim, certified. As to the false arrest it (D.C.Cir.1983); such an simply reality think probable blinks assertion is conspiracy relevant to a charge cause could signifi- be demonstrated for a stage at the determining cant number of the arrests at issue. damages actual have been suffered. Appellees deliberately failed at the time to Thus, under the liability/damages distinc- and, proper maintain arrest records as in tion offered the majority, false ar- Dellums, virtually have thus foreclosed rest claim could proceed as a class any opportunity arresting to show that the could, action while the conspiracy counts probable officer had cause to make an ar- though even very potential same indi- any particular Indeed, rest case. vidualized defenses would be raised in remand in Murphy, Sullivan v. the com- sense, both. That result makes espe- little panion suit to expunge- this case in which cially in the designed context of a rule ment of sought, arrest records was practical. District stated that “an affirmative show- ing probable launching Without into an extended cause not be made de- [could] pertinent of bate with the majority the on the cases” and there- substantive fore a final by conspiracy, order was issued the law of civil district believe the con- court declaring all the spiracy allegations arrests invalid. 380 separate- can be viewed F.Supp. (D.D.C.1974). Similarly, ly from the underlying tort claims in this Powell, in Dellums v. damages First, action action. it is not the of this law arising out of during other mass arrests circuit that a conspiracy claim which arises May Day period, the defendants failed to under law is sustainable after federal discovery single take from a absent class underlying an tort claim has been estab- member. 566 F.2d at 191. In view of the lished; passage the to this effect in Hal- prior facts of this case and these encoun- Welch, bertsam v. 705 F.2d at cited ters with the District’s proce- mass arrest the majority, is no more than a statement dures, quite that, it seems clear to me necessary prove elements to a con- viewed, pragmatically the dominant if not spiracy under District of Columbia law. sole issue at trial on the false arrest claim Indeed, the court in Halberstam made damages would be the amount of that clear that expressing it was not opinion an ought to be awarded to the class or to on whether “the element of combination various sub-classes. may alone make certain acts unlawful— majority recognizes though even that bifurcation would per- not be so if liability of trials into damages phases formed independently by individuals.” Id. problem present case is that it is in the also 7; Prosser, 477 n. W. Law of 1971) § (4th (“[I]t many putative now members ed. how аt 293 unclear Torts although there has agreed, generally allegedly by abuses of the seems were victimized contrary, there authority the that matter, to empirical process.” As an judicial in which of conduct ... types certain are flawed; District ad- statement is the such a adds element of combination subject plaintiffs “almost all mits that it makes unlaw- coercion ... that power of juvenile pro- of criminal or to some sort might legiti- one man alone ful acts which detention, following ceedings this, do.”). such as In a case mately proceeding varypng] from forfei- form of are and local officials federal which papering prosecu- to no to ture of collateral rights civil charged plotting massive with impor- Brief tion.” District at 25. More violations, sense, policy sound common drastically tantly, majority’s position suggest agree- law all that governing proof of for class certifi- alters the burden liability. ment alone suffices establish questions. cation Wilson, 1 at 52 Hobson See majority correctly While the notes that (“To conspiracy (D.C.Cir.1984) make the ac- passing circuits have stated in that some tionable, an act in there must also be overt establishing of plaintiffs bear burden conspiracy object furtherance of requirements that fоr class treatment person prop- or injures plaintiff his that met, equally it is correct that have been action, 1985(3) which or, in a section erty, many have courts commentators con- exercising any deprives having him of Rule 23 is cluded that directed trial privilege a citizen the Unit- right or Rule court and that 23 determinations are States.”) added). Hobson ed (emphasis made in a nonadversarial context. to be suggest overt act must not does generally H. See Newberg, Moreover, Class Ac- tortious. to the extent itself be § (“Burden proof concepts underlying required, tions is there is an tort appropriate dealing with a ... are that each member of nothing suggest respecting determination whether ac- prove [an that he was plaintiff class need brought per- tion under Rule should be specific 23] victim of tortious action —it maintained.”); City Phila- mitted to be may conspirators that under- suffice delphia Corp., Emhart 50 F.R.D. took some tortious conduct (E.D.Pa.1970) (stating plaintiff has entity. requirement class as an That unnecessary showing clearly met in this case. It is he meets Rule 23 but burden these the sub- sponte then sua dividing to resolve about the claimed class conspiracy nature of federal civil allowing stantive ac- into the class subclasses law, however, in order to convince me that Moreover, if proceed). even ability questions, and the plaintiff matter the bears this bur- formal existence, scope, and na- to establish den, very majority cases cited any conspiracy among the defend- ture of cannot, judge clear the trial as in make ants, litiga- are much more central to this case, passively pleadings on the rest the defend- question tion than the and dismiss an action for failure of the probable for the can establish cause ants suggest viable subclasses unlawful arrest of some of the otherwise manageable; make the action as the would plaintiffs. Doctor v. Seaboard Coast court stated R.R., (4th Cir.1976): Line F.2d I therefore hold that the false would constitutional, arrest, conspiracy and determining plaintiff In whether the has claims, trial, the same basic all of which have burden, court met his or her the structure, class treat- appropriate are for pleadings de- may look to the “but [t]he ment. usually predicated termination should be complaint than the claim, on more information process As to the abuse may, The itself affords.” court and of- my less majority’s position is in mind even does, discovery relating permit ten to the convincing. majority The that “the states appropriate is thе most maintainability, action means of and a issues involved conducting particular a lawsuit. But the hearing may preliminary evidentiary vary extent of that discretion should with part appropriate essential a be or as the nature of determination which the role which the management the vital made; judge has district the less determi- in class ac- judge trial must exercise depends judge’s on the district fa- nation me- to assure that are both tions miliarity particular the facts and the (quoting aningful manageable, case, appellate the less the basis court Co., v. N.D. 485 F.2d Cass Huff example, in deference. For National Asso- Cir.1973) added). (5th (emphasis Health, ciation Mental Inc. Califa- Bay City also Dillon v. Construction See (D.C.Cir.1983), no, cit- 717 F.2d Co., (5th Cir.1975)(“Addi- by majority, entirely appropri- it ed was entitled to dis- tionally, plaintiffs were ate for this court to accord substantial def- always covery would bear on the which judge’s erence to a district determination this was of whether troublesome representation by representa- the class ought a class action ... to be considered adequate; had not been the district tive conditions, any, if on and the terms and judge uniquely was situated to make this proceed.”). which it could determination. this case situation process With to the abuse very Despite vintage different. of this claim, obvious, traditional, means litigation, proceedings yet no had taken majority’s dealing with the concern place judge made before the district be to sub-divide the class into those would potential him more familiar with the subject prosecution, those who were who complexities of class treatment of this collateral, subject to forfeiture of be; court would the dis- appellate than an subject papering, and to those to no award judge trict the certification issue decided damages damages, a accordingly; to collect essentially papers on the bare and without demonstrate, plaintiff would have to as al- conducting any hearing. Under these cir- belonged. ways, the class to which he The cumstances, deferring the rationales for require solution is not to sig- the discretion of the district court are make in their this demonstration nificantly attenuated. pain losing opportunity litigate importantly, More the fact that a district Contrary majority’s as a class. inti- judge has discretion in class certifica- some mation, 10, am not Maj.Op. at 1415 n. tion decisions does not mean that those engaging creating “in the business of way decisions can made in a that under- be suggested by classes аnd never subclasses purposes policies of Rule 23. cuts parties;” my simply contention is recognized, appeals As other courts of have explore the district court’s failure to “[although the district court has broad possibility through of subclass treatment determining partic- discretion whether a avenues, evidentiary hearing an and other treatment], ular action suitable for class [is creating discovery such as schedule for application requirements issue, probable sides on the cause both strictly applied should not so I would there- constitutes reversible error. policies underlying class action would be court, fore remand so that the after district Realty undermined.” Weathers v. Peters evidentiary hearing, an enter find- would (6th Cir.1974). Corp., 499 F.2d 1197 rule, ings why of fact the class action class, failure to which the ma- given a which is to be construction liberal approves jority only by turning its back on nothingness, into rather than be contracted spawning the actual circumstances treat- should not favor class or subclass lawsuit and on the issues that would in ment of this action. trial, practice predominate sufficiently true, majority purposes as the It is of course contravenes of the “function- states, significant “pragmatic” approach al” аnd judges that district have in embodied I determining in a class Rule that would overturn the district discretion I certify the class. judge’s refusal part dissent from that

therefore Idella MURRAY majority’s opinion that holds otherwise. WEINBERGER, Casper Secretary of III. Defense, Appellant. am troubled ma-

I also somewhat No. approval deny 83-1680. jority’s decision to grounds class certification on the Appeals, United States Court untimely. I would motion was District of Columbia Circuit. other require, as have most courts and as Argued April been eminent commenta- has advocated tors, that a class certification motion not be Decided 24 Aug. 1984. grounds on timeliness denied unless showing can some defendants make actually prejudiced by the have

delay. See Senter v. Motors General cert, (6th Cir.), Corp., 532 F.2d (1976); see also Larionoff States, (D.C. United

Cir.1976) (“absent showing of actual some either

prejudice Government members,

the absent class con- we cannot entry

clude the simultaneous

judgment and the class action certification ‍‌​‌‌​‌​‌​‌​‌​‌​‌‌‌​‌​‌‌​​​​​‌‌​​​​​‌​‌​​​‌‌​‌​‌‌‍error.”); generally reversible 7A

was Wright & A. C. Miller, Federal Practice § (1972 Supp.). & 1982

and Procedure showing such a Whether could be made unclear; case is no discovery tak- was original thirty-nine

en be- the class certification

fore motion was filed hence it would be somewhat anamalous delay defendants to assert that the moving for certification undermined discovery I see no efforts. reason my question

elaborate views however, light

length, adop- l-13(b) if Local Rule few by majority’s cases will be affected merely

timeliness therefore discussion. my question. on this

note reservation

Case Details

Case Name: Michael McCarthy Arthur Waskow v. Richard G. Kleindienst

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 17, 1984

Citation: 741 F.2d 1406

Docket Number: 83-1789

Court Abbreviation: D.C. Cir.