The district court entered judgment for the school district, adopting the findings of fact and conclusions of the board. A panel of this court reversed, finding reliance on those proceedings an improper substitute for an evidentiary hearing in the district court. Ward v. Kelly, 476 F.2d 963 (5th Cir. 1973). On remand the district judge conducted a full evidentiary hearing.
Joinder of such a small number of inmates housed in the same location was thus not impracticable, and the district court did not err in determining that numerosity was not established. See Ibe v. Jones, 836 F.3d 516, 528 (5th Cir. 2016); FED. R. CIV. P. 23(a); see also Ward v. Kelly, 476 F.2d 963, 964 (5th Cir. 1973); cf. In re: TWL Corp., 712 F.3d 886, 895 (5th Cir. 2012).
A case is not a proper class action when the size of the class is demonstrably small. See Ward v. Kelly, 476 F.2d 963, 964 (5th Cir. 1973). Other facts which may be relevant to the numerosity inquiry include "the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiff's claim."
Id. Other factors courts have looked at include: (1) " whether each member of the purported class could be joined without an undue burden on the plaintiff, see, e.g.,Ward v. Kelly, 476 F.2d 963, 964 (5th Cir.1973); (2) the geographic location of class members, see, e.g.,DeMarco v. Edens, 390 F.2d 836, 845 (2d Cir.1968); and (3) " the geographical dispersions of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiff's claim," see, e.g.,Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir.1981). As stated by the court in DeMarco, it is essential that courts " not be so rigid as to depend upon mere numbers as a guideline on the practicality of joinder."
Because all minority applicants who took the examination or who took and passed the examination and were accordingly ranked are identifiable, the class is neither numerous nor is joinder of all members impracticable. Ward v. Kelly, 476 F.2d 963 (5th Cir. 1973). Although the requirements of Rule 23 may be liberally applied in Title VII cases, see, e.g., Lamphere v. Brown University, supra, Plaintiffs have not met the requirement of Rule 23(a)(1) in this case.
Second, as a necessary corollary to his argument that the veracity of the charges against the plaintiff must be established independently in this Court, the plaintiff contends that "[a] hearing before the school board cannot be substituted as a trial of the issues before the District Court." Ward v. Kelly, 476 F.2d 963, 964 (C.A.5, 1973); Thompson v. Madison County Board of Education, 476 F.2d 676, 678 (C.A.5, 1973). Not only do the unique factual circumstances of those cases render their precedential value questionable, but also the plaintiff's interpretation of the language is inconsistent with subsequent Fifth Circuit decisions which applied a substantial evidence test to the review of school board hearings.
This is particularly true where, as here, the size of the class is demonstrably small and all plain indications are that its alleged members could be joined without undue burden on plaintiffs. Ward v. Kelly, 476 F.2d 963 (5 Cir. 1973). Plaintiffs' counsel, in a supplemental legal memorandum, urges us to interpret the class definition broadly by considering all resident aliens within Mississippi as members, or potential members, of the class.