Opinion
Civil Action No. 04-1581 Section "K"(4).
June 3, 2005
ORDER AND REASONS
Before the Court is Plaintiffs' Motion for Class Certification (Doc. No. 29). Having reviewed the pleadings, memoranda and the relevant law and having been informed during a telephonic status conference that plaintiffs seek class classification solely for injunctive relief, the Court finds the motion to have merit.
Plaintiffs are Choice Inc. of Texas d/b/a Causeway Medical Clinic, Dr. James Deguerce, and three named plaintiffs, Priscilla Cabrera, Jane Doe One and Jane Doe Four, who seek class certification. Plaintiffs have allegedly been harmed by the practices of William Graham ("Graham"), defendant herein. The proposed plaintiff class (the "Class") consists of all persons who have been or will be subject to the alleged misleading, deceptive and tortious acts committed by William A. Graham.
The general allegations are that William Graham has obtained a telephone listing for "CAUSEWAY CENTER FOR WOMEN" which is confusingly similar to plaintiff "CAUSEWAY MEDICAL CLINIC." He is listed in the Yellow Pages under "Abortion Services" which states "Businesses at this heading assert that they perform abortions or refer clients to businesses that do." There is a Yellow Page listing For "Abortion Alternatives" which states that the persons listed thereunder "assert that they provide assistance, counseling and/or information on abortion alternatives and that they do not provide abortion services or counseling or information on the attainment of abortions."
Plaintiffs contend that Graham misleadingly holds himself out as an abortion referral service and as a concerned medical healthcare advisor giving medical advice; that he leads women to believe that he will arrange a "safe" abortion for them, that the cost is less than $200.00; that the fee does not change in relation to the point in the pregnancy that the abortion is to occur (early or late term); that he can arrange for a legal abortion up to the 30th week (in Louisiana 24 weeks is the limit that an abortion can be had legally); that Causeway Medical Clinic is a "butcher shop"; that he strings women along with false appointments and dates for the abortion such that they are lulled into a belief that they are going to have an abortion (so that they take no medication for the pregnancy) and then find that they are past the time by which they can have an abortion and/or the cost because of the length of the pregnancy (when they go to a real provider) is such that they cannot afford it.
Plaintiffs contend that they are entitled to relief pursuant to, inter alia:
1. Trademark Infringement and Unfair Competition Under Federal and State law;
2. False Advertising under the Lanham Act;
3. Fraud under La. Civ. Code art. 1953; and
4. Breach of Duty (Negligence) La. Civ. Code art. 2315
After a hearing was held on August 4, 2004, a preliminary injunction was entered against Graham (1) which required him to disconnect his existing phone number that is attributable to Causeway Center for Women, (2) which enjoined his advertising or listing, under any name, be it in the yellow pages, online directories, or otherwise, under the headings "Abortion," "Abortion Services," "Abortion Providers," "Abortion Referrals," or similar heading language; and (3) which enjoined him from making false statements about Causeway Medical Clinic.
As noted, Priscilla Cabrera, Jane Doe One and Jane Doe Four seek to represent herein all persons who have been or will be subject to the misleading, deceptive and tortious acts committed by Graham. They maintain that this action satisfies each of the four prerequisites for class certification under Fed.R.Civ.P. 23(a) and further meet the criteria for class certification pursuant to Fed.R.Civ.P. 23(b)(2).
Certification of Class Pursuant to Rule 23
Rule 23 of the Federal Rules of Civil Procedure provides the criteria the Court must employ in determining whether to certify a class. Subsection (a) delineates four threshold requirements that must first be met before certification can occur. The rule states:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interest of the class.
Fed.R.Civ.P. 23(a). Then, Rule 23(b) delineates three different categories of class actions. The party moving for certification must demonstrate that the each of the elements of Rule 23(a) is met and that the action falls within one of the Rule 23(b) categories. In re Ford Motor Co. Bronco II Product Liability Litigation, 177 F.R.D. 360, 365 (E.D.La. 1997). As noted plaintiffs seek certification of the class under Fed.R.Civ.P. 23(b)(2).
Rule 23(b)(2) provides that a class may be certified if:
The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
Fed.R.Civ.P. 23(b)(2). The Court will now turn to the four prerequisites found in Rule 23(a).
Rule 23(a)
(1) Numerosity
Rule 23(a)(1) requires that the proposed class be so numerous that joinder of all members is impracticable. Although the number of members in a proposed class is not determinative of whether joinder is impracticable, it has been noted that any class consisting of more than forty members "should raise a presumption that joinder is impracticable." Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999). As stated in San Antonio Hispanic Polic Officers' Organization, Inc. v. City of San Antonio, 188 F.R.D. 433 (W.D.Tex. 1999):
To meet this requirement [of numerosity] the exact number of potential members need not be established nor do the members of the class need to be identified individually. Celestine v. Citgo Petroleum Corp., 165 F.R.D. 463, 466 (W.D. La. 1995), aff'd, 151 F.3d 402 (5th Cir. 1998). Other factors in addition to the actual or estimated number of potential class members relevant to the numerosity element include, for example, "the geographical dispersion of the class, the ease with which class member may be identified, the nature of the action and the size of each plaintiff's claim." Zeidan v. J. Ray McDermott Co., 651 F.2d 1030, 1038 (5th cir. 1981). The proper focus is not solely on the number of members but "on whether joinder of all members is practicable in view of the numerosity of the class and all other relevant factors." Id. (quoting Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1022 (5th Cir. 1981). Moreover, in certifying a class seeking only injunctive relief, the numerosity requirement may be fulfilled even when the class is small because the benefits to be gained not only inure to the benefit of the known class but will benefit a future class of indeterminate size. Young v. Pierce, 544 F. Supp. 1010, 1028 (E.D. Tex. 1982). These unknown and future members should be properly considered an included as part of the class and "joinder of such persons is inherently impracticable."Id. at 442 (emphasis added).
In the instant matter, it appears that there are at least 35 persons identified as potential class members. Furthermore, there is geographical dispersion — Ms. Cabrera who once was a resident of Mississippi now resides in California. Another woman who has contacted plaintiffs' counsel previously resided in Louisiana, now lives in Ohio. Finally, as the remedy sought for the class is injunctive relief, the Court finds that the numerosity requirement is satisfied.
(2) Commonality
The test for commonality is not demanding and is met "where there is at least one issue, the resolution of which will affect all or a significant number of the putative class members." Mullen, 186 F.3d at 625 citing Lightbourn v. County of El Paso, 118 F.3d 421, 426 (5th Cir. 1997). Considering that the named plaintiffs are typical victims of Graham's alleged improper practices and willful misrepresentations, the commonality prong is satisfied. The potential Class's injuries arise out of the same course of conduct — that is Graham's use of "Causeway Center for Women" as a ruse for his alleged attempts at preventing legal abortions.
(3) Typicality
The test for typicality, like the test for commonality, is not demanding. Lightbourn v. County of El Paso, Texas, 118 F.3d 421, 426 (5th Cir. 1997). Typicality "focuses on the similarity between the named plaintiffs' legal and remedial theories and the theories of those whom they purport to represent." Mullens, 186 F.3d at 625. That focus dominates the inquiry over the relative strengths of named and unnamed plaintiffs' cases. Bertulli, 242 F.3d at 298 n. 32 citing Jenkins v. Raymark Ind., Inc., 782 F.2d 468, 472 (5th Cir. 1986). "Differences between named plaintiffs and class members render the named plaintiffs inadequate representatives only if those differences create conflicts between the named plaintiffs' interest and the class members' interests." Musmeci v. Schwegmann Giant Super Markets, 2000 WL 1010254 (E.D.La. July 20, 2000), citing Mullen, 186 F.3d at 626.
As stated in In re Ford Motor Company Vehicle Paint Litigation 182 F.R.D. 214 (E.D.La. 1998), citing Newberg on Class Actions § 3-13, at 3076 (3d 3d. 1992):
"[A] plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory." On of the purposes of the typicality requirement is to ensure that the representative's interest is "aligned with those of the represented group, and in pursuing his own claims, the named plaintiff will also advance the interests of the class members." In re American Medical Systems, Inc., 75 F.3d 1069, 1082 (6th Cir. 1996). See Bronco II, 177 F.R.D. at 366-67 (noting that purpose of typicality element is to ensure that interests of absent class members are protected).Id. at 218. Likewise, considering that plaintiffs allege that Graham's course of conduct of allegedly preventing legal abortions through deception and misrepresentations is the source of the harm sought to be remedied, this prong is satisfied.
4) Adequacy of Representation
To meet the fourth requirement, the Court must find that the representative parties fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a)(4). The adequacy requirement looks at both the class representatives and their counsel. Jenkins v. Raymak Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986). "There is no formula for deciding this issue; the adequacy determination is made based on the circumstances of each individual case." In re Ford Co. Bronco II, 177 F.R.D. 360, 367 (E.D.La. 1997) citing McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 559 (5th Cir. 1981).
Thus, the proposed representative must have common interests with the class members and be able to properly prosecute the class action. It is fundamental that adequacy is lacking if the interests of the putative class representative are antagonistic to or in conflict with the interests of other class members. . . . Adequacy does not exist when the representative is immune to an affirmative defense which will apply to other class members. Markham R. Leventhal, Class Actions: Fundamentals of Certification Analysis, 72 May Fla. B.J. 10 (1998). It is clear to the Court that both counsel and the proposed class representatives will fairly and adequately protect the interests of the class. Counsel has demonstrated its competency and the named plaintiffs have demonstrated their resolves to represent the class. Furthermore, as only injunctive relief is sought, there is no potential for conflict, nor does there appear to be an affirmative defense which would preclude the class representatives from adequately representing the potential Class. Thus, all of the prerequisites under Rule 23(a) are met. The Court must now turn to Rule 23(b)(2).
Rule 23(b)(2)
The Named Plaintiffs seek certification of the class under Rule 23(b)(2), which as previously discussed, focuses on class actions where "broad, class-wide injunctive or declaratory relief is necessary." Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998). The Fifth Circuit explained in Allison the differences between all three types of classifications as follows:
In the Named Plaintiffs' briefing, Rule 23(b)(1)(A) is also mentioned as another possible avenue for class certification; however, the Court finds that as the primary relief sought class-wide is injunctive relief, the Court will limit its analysis to Rule 23(b)(2).
The (b)(1) class action encompasses cases in which the defendant is obliged to treat class members alike or where class members are making claims against a fund insufficient to satisfy all of the claims. . . . The (b)(2) class action was intended to focus on cases where broad, class-wide injunctive or declaratory relief is necessary. . . . [T]he (b)(3) class action was intended to dispose of all other cases in which a class action would be "convenient and desirable," including those involving large-scale, complex litigation for money damages.Allison, 151 F.3d at 412.
The appellate court then noted that different presumptions with respect to cohesiveness and homogeneity of interest among members of (b)(1), (b)(2) and (b)(3) were reflected in the drafter's use of different procedural safeguards provided for each class. Under (b)(2) there are no opt-out provisions which are provided under (b)(3) for class members who might wish to pursue their claims for money damages in individual lawsuits. Id. As monetary remedies are more often related directly to the disparate merits of individual claims, a class seeking substantial monetary remedies will more likely consist of members with divergent interests. Id. at 413. In contrast, the premise that a (b)(2) class is homogeneous and cohesiveness "begins to break down when the class seeks to recover back pay or other forms of monetary relief to be allocated based on individual injuries." Id., citing Eubanks v. Billington, 110 F. 3d 87, 95 (D.C.Dir. 1997). As such, class certification under (b)(2) becomes less appropriate where money damages begin to predominate the claims of the proposed class. However, in the case at bar, counsel has represented to the Court that the sole remedy sought class-wide is injuctive relief, thus classification pursuant to Rule 23(b)(2) is appropriate. The appellate court also found that "actions for class-wide injunctive or declaratory relief are intended for (b)(2) certification precisely because they involve uniform group remedies. Such relief may often be awarded without requiring a specific or time-consuming inquiry into the varying circumstances and merits of each class member's individual case." Id. at 414.
Thus, having met the necessary criteria under Fed.R.Civ.P. 23(a) and 23(b)(2), IT IS ORDERED that Plaintiffs' Motion for Class Certification is GRANTED, and a class is established herein of all persons who have been or will be subject to the misleading, deceptive, and tortious acts allegedly committed by the defendant, William A. Graham.