A Numerosity Argument Defeats Class Certification
The "numerosity" argument has become the bastard child of the defense arsenal, seldom seen and even less frequently mentioned. And yet a recent Sixth Circuit decision reminds us that a well-crafted numerosity argument can carry the day, defeating class certification just as effectively as the tow-headed twins of predominance and superiority.
The dispute in Turnage v. Norfolk Southern Corp., Case No. 07-6033 (6th Cir. Jan. 22, 2009), arose out of a train derailment. As the good folks of Knox County, Tennessee were at church on a September Sunday morning, a train derailed, causing a tanker leak that released a cloud of sulfuric acid and water over portions of Knox and Blount counties. A mandatory evacuation was imposed on a 1.3-mile radius of the derailment site, along with a voluntary evacuation of residents living within a 3-mile radius of the site. There were 963 households within the 1.3-mile radius, and an additional 6,047 households within the larger 3-mile radius. Those who had evacuated were able to return to their homes between 34 and 45 hours later.
The defendant acted quickly to assist those inconvenienced by the derailment, establishing claim centers where residents could receive immediate reimbursement for food, clothing, lodging, and other evacuation-related expenses. Nearly 86% of the mandatory evacuees had received some sort of compensation from the defendant, and roughly 17% of the households within the larger voluntary evacuation zone had received some sort of compensation from the defendant.
Plaintiffs lived within the mandatory evacuation zone, and they brought their putative class action for compensatory and punitive damages on behalf of a class of "all persons who were evacuated from the surrounding area." Slip op. at 3. The trial court held a two-day class certification hearing, concluding that the plaintiffs had not satisfied their burden to demonstrate that the class was so numerous as to make joinder impracticable. At a subsequent trial, plaintiffs were awarded $3,480 in damages.
The Sixth Circuit affirmed the holding that Rule 23(a)(1)'s numerosity requirement was not met. As the court noted, the class members' "proximity to each other and the discrete and obvious nature of the harm make identifying and contacting them relatively easy." Slip op. at 5. "[T]he real issue," the court explained, "is whether the plaintiff seeking class certification has demonstrated the impracticability of joinder." Id. (citing In re American Medical Systems, 75 F.3d 1069, 1079 (6th Cir. 1996)).
Thus, despite the fact that there were some large numbers of people -- particularly in the voluntary evacuation area -- who might (or might not) be eligible for membership in the class, the court focused on the fact that so many people in the mandatory evacuation area already had received compensation, and that plaintiffs had failed to provide evidence that there were many other people who actually relocated and suffered an inconvenience or expense that was not reimbursed by the defendant:
Given the close geographical proximity of supposedly thousands of class members, the task of gathering concrete evidence of numerosity should not have been difficult. Yet [plaintiff] did not submit evidence to the district court of even one additional person who wished to seek a legal remedy against [the defendant]. Therefore the district court did not abuse its discretion when it found that the evidence of numerosity was too speculative to merit certification.
Slip op. at 9.
The Turnage decision should be a strong reminder to defense counsel to scrutinize more carefully whether plaintiffs have actually provided the court with evidence that there are sufficient numbers of people with real disputes against the defendant such that the joinder of all interested parties is truly impracticable. Where joinder of all claimants in one suit is a possibility, a class action should not be certified.
