OPINION AND ORDER
This is a diversity action in which the plaintiffs seek compensatory and punitive damages for impairment of their property rights as a result of the defendant’s alleged pollution of Lake Champlain. The named plaintiffs, allegedly owners of lakefront property in Orwell, Vermont, seek to maintain this suit as a class action under Rule 23(b) (3) of the Federal Rules of Civil Procedure. Plaintiffs allege that all lakefront landowners and lessees in the towns of Orwell, Shoreham, and Bridport, Vermont, numbering more than two hundred, are properly members of the class they seek to represent.
We must initially determine whether there is jurisdiction over all the members of the proposed class. The defendants contend that some members of the class are residents of New York and that the court does not have jurisdiction over these persons. This position is clearly untenable. One of the factors relied on by the Supreme Court in reaching its conclusion in Snyder v.
Under current doctrine, if one member of a class is of diverse citizenship from the class’ opponent, and no non-diverse members are named parties, the suit may be brought in federal court even though all other members of the class are citizens of the same State as the defendant and have nothing to fear from trying the lawsuit in the courts of their own State. See Supreme Tribe of Ben-Hur v. Cauble,255 U.S. 356 [41 S.Ct. 338 ,65 L.Ed. 673 ] (1921).
The defendant’s contention that many members of the proposed class fail to meet the $10,000 jurisdictional amount is crucial, however. The sums in good faith claimed by the plaintiffs control the determination of jurisdictional amount unless “from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff [s] cannot recover the amount claimed * * St. Paul Mercury Indemnity Co. v. Red Cab Co.,
This action would have been considered a “spurious” class action under Rule 23 before its amendment in 1966, because the claims of the class members are separate and distinct. See, e. g., Snyder v. Harris, supra,
In Snyder v. Harris, supra, the Supreme Court held that aggregation of damages to satisfy the jurisdictional amount is not permissible in “spurious” class actions. This doctrine, the Court held, is based upon its prior interpretation of the statutory phrase “matter in controversy” in 28 U.S.C. § 1332(a) and its predecessors, rather than on Rule 23 or any other rule of procedure. The Court looked for interpretation of this phrase to Troy Bank v. Whitehead & Co.,
To be sure, the basis of Snyder is a reaffirmation of quite well settled law as applied to the amended Rule 23, whereas it has never been settled by a square holding that every unnamed class member in a spurious class suit must individually satisfy the jurisdictional monetary limitation. Neither Snyder nor Clark involved named plaintiffs all of whom met the jurisdictional amount. Before the amendment of Rule 23 in 1966 the majority of the case law held that only named plaintiffs (i. e., the original parties and those who intervened under prior Rule 24) were bound by the result of a spurious class action. See C. Wright, supra, § 72 at 310. As amended, Rule 23 provides that all members of a class who do not request exclusion are bound by the resulting judgment. Thus only after the 1966 amendment did the issue of whether an unnamed plaintiff was required independently to meet the jurisdictional amount become significant. The aggregation issue resolved in Snyder, however, was always important as it related to the jurisdictional requirements for named as well as unnamed plaintiffs. Nevertheless, despite this possible distinction, we feel bound by the clear language of the Supreme Court; accordingly we hold that each class member in a spurious class action must independently satisfy the requirement as to jurisdictional amount. Nor do we find room in the Court’s language for the admittedly attractive distinction proposed by one commentator in discussing the jurisdictional requirements for intervention under the prior Rule 24: “Should a large number of claimants meet the jurisdictional requirements, a few claimants who do not meet them could be deemed within the ancillary jurisdiction of the court.” G. Fraser, Ancillary Jurisdiction and the Joinder of Claims in the Federal Courts,
We recognize that our decision today may conflict with that implied by Professor Moore’s conclusion that in a Rule 23(b) (3) suit “the several claim or claims of or against each member of the class appearing of record as an original party [has] to equal or exceed the specified amount in controversy.” 3B Moore’s Federal Practice ¶ 23.95 (2d ed. 1969) (emphasis added; footnote omitted). Professor Wright recognizes that there are “indications” that Snyder will be interpreted as we have interpreted it, but argues that “this is not an inevitable conclusion and it would aggravate the damaging effect the Snyder decision had had on the attempt to modernize the law of class actions.” C. Wright, supra, § 72 at 316. But see H. Hart & H. Wechsler, The Federal Courts and the Federal System 935-937 (1953).
Our holding is in accord with Alvarez v. Pan American Life Ins. Co.,
We reach our decision today with great reluctance. For if a construction of Rule 23 were controlling, rather than the phrase “amount in controversy” in the jurisdictional statute, our decision would be different. Rule 23 contemplates a suit brought by representatives of an appropriately defined class; members of the class other than the named representatives need never come into court. In fact, the court may not even know the identity of the unnamed plaintiffs: notice of the action may be by publication if individual notice is not feasible. Thus the requirement that each class member meet the jurisdictional amount clearly undermines the usefulness of Rule 23(b) (3) class suits, because the problem of defining an appropriate class over which the court has jurisdiction will often prove insuperable.
Indeed, we think this problem is insuperable in the ease at bar, for we can find no appropriate class over which we have jurisdiction. A class defined as all lakefront landowners and lessees in the towns of Orwell, Shoreham, and Brid-port having $10,000 in controversy would not be feasible. The class would have to be further defined either before or after trial on the liability issue. A determination before trial of the landowners actually encompassed within this class would require the unnamed class members to appear and at least plead, and perhaps prove facts substantiating, an amount in controversy. This would eliminate any advantage of a class action over joinder; a class action would therefore not be properly maintainable because class treatment would not be “superior to other available methods for the fair and efficient adjudication of the controversy,” as required by Rule 23(b) (3). Nor could further definition of the class be postponed until after trial on the liability issue. As the notes of the advisory committee indicate, the 1966 revision of Rule 23 was meant to exclude “one-way intervention” and to lessen problems relating to the res judicata effect of judgments. But if liability were found not to exist in the case at bar, the res judicata effect of the judgment would depend on an evaluation at some future date of whether a given class member had $10,000 in controversy at the time of this action. This is clearly an impossible task. And if liability were found to exist, the question of ju
Accordingly, it is hereby ordered that reference to all persons other than the four named plaintiffs be stricken from the complaint and that this action not be permitted to proceed as a class action.
Application for Certification Under 28 U.S.C. § 1292(b)
Plaintiffs have moved that this court amend its previous order so as to permit appeal under 28 U.S.C. § 1292(b). Although we recognize that appeals under section 1292(b) should be granted only in very limited cases, Gottesman v. General Motors Corp.,
We assume, without deciding, that our order denying class treatment is interlocutory rather than final in nature. See generally Caceres v. International Air Transport Ass’n,
Finally, we also think that an immediate appeal on the propriety of class treatment may materially advance the ultimate termination of the litigation. This case involves a particularly complicated issue of liability and is likely to involve protracted and costly litigation. If our opinion as to the jurisdictional requirements for Rule 23(b) (3) class suits is erroneous, reversal after trial on the merits may require a new trial, and failure of the named plaintiffs to prosecute an appeal on our ruling may result in a multiplicity of protracted
Accordingly, plaintiffs’ motion is granted.
Notes
. Cf. C. Wright, Handbook of the Law of Federal Courts § 72, at 316 (2d ed. 1970) (emphasis added; footnote omitted) : “There are indication that [Snyder] also means that [Rule 23(b) (3)] cannot be used in diversity cases save for the extraordinary situation in which every member of the class has a claim in excess of $10,000 * *
. See Comment, Interlocutory Appeals from Orders Striking Class Action Allegations, 70 Colum.L.Rev. 1292, 1293-1294 (1970) (footnote omitted) :
Even if the named plaintiff * * * succeeds on the merits in his individual capacity, he may then abandon his original goal of reducing his own expenses by representing a class rather than pay the costs of an appeal that might possibly fail to win a reversal of the order. The remainder of the class would consequently be left without a representative or “champion.” On the other hand, if the named plaintiff does appeal the order after prevailing on the merits, his success on appeal may be a dubious blessing from his point of view: he may be permitted to represent the class but be required to prosecute a new trial. [The commentator then states the reasons why a new trial may be required ]