Opinion
No. 01-00458 ACK-LEK
May 29, 2002
ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION AND REVISING CERTIFICATION ORDER DATED APRIL 25, 2002
BACKGROUND
On April 25, 2002, the Court issued an Order Granting in Part and Denying in Part Plaintiffs' Motion for Class Certification. While the Court found that the Class, sub-class I and sub-class II (assumedly for analytical purposes) met the requirements of Rule 23(a), it denied certification of the Class and sub-class II and conditionally certified sub-class I (with respect to Counts II, III, IV, V, VI, VII, IX, X, XI, XII, XIII, XIV and XV), defined as (1) non-residents of Hawaii (2) who paid $3.00 to enter the beach area of Hanauma Bay (3) after July 10, 1999(4) who at the time of payment were U.S. Citizens, as a 23(b)(3) class. Plaintiffs timely sought partial reconsideration of the Court's April 25, 2002 Certification Order on May 9, 2002. Defendants submitted an Opposition on May 20, 2002.
The facts of the instant dispute are outlined in detail in the Court's April 25, 2002 Order Granting in Part and Denying in Part: Plaintiffs' Motion for Class Certification and will not be repeated herein.
Plaintiffs' proposed Class was defined as "non-residents of Hawaii who have been required to pay $3.00 to access the public beach at Hanauma Bay." See Order, filed 4/25/02, at 7.
Plaintiffs' proposed sub-class I was defined as "those non-residents who have paid the $3.00 access fee." See Order, filed 4/25/02, at 7.
Plaintiffs' proposed sub-class II was defined as "those non-residents who have been unable or unwilling to access the beach at Hanauma Bay, despite a desire to do so, as the result of the imposition of the $3.00 access fee." See Order, filed 4/25/02, at 7.
Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without hearing.
STANDARD
In the Ninth Circuit a successful motion for reconsideration must accomplish two goals. First, a motion for reconsideration must demonstrate some reason why the Court should reconsider its prior decision. Second, the motion must set forth facts or law of a "strongly convincing" nature to induce the court to reverse its prior decision.Decker Coal Co. v. Hartman, 706 F. Supp. 745, 750 (D. Mont. 1988) (citingAll Hawaii Tours v. Polynesian Cultural Center, 116 F.R.D. 645, 649 (D. Haw. 1987), partially rev'd on other grounds, 855 F.2d 860 (9th Cir. 1988)). Courts have established three grounds justifying reconsideration: (i) an intervening change in controlling law, (ii) the availability of new evidence, and (iii) the need to correct clear error or prevent manifest injustice. Decker Coal, 706 F. Supp. at 750; All Hawaiian Tours, 116 F.R.D. at 616; Local Rule 60.1.
The Court notes that its April 25, 2002 Certification Order conditionally certified sub-class I as a Rule 23(b)(3) class pursuant to Rule 23(c)(1). By its terms, Rule 23(c)(1) gives the court discretion to alter or amend its order before decision on the merits. Fed.R.Civ.P. 23(c)(1) ("An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.")
DISCUSSION
Through the instant Motion for Reconsideration, Plaintiffs move the Court to "conditionally certify sub-class I, re-defined as (1) non-residents of Hawaii (2) who paid $3.00 to enter the beach area of Hanauma Bay (3) who at the time of payment were U.S. citizens, as a Rule 23(b)(2) class to the extent they seek injunctive and declaratory relief; and as a Rule 23(b)(3) class to prosecute their claims for money damages." Defs' Mot. for Recons., filed 5/09/02, at 17. Plaintiffs also seek "conditional certification of sub-class II, defined as (1) non-residents of Hawaii (2) who declined to enter the beach area of Hanuama Bay because of the $3.00 fee imposed by the City and County (3) who at the time they declined entry were U.S. citizens, as a Rule 23(b)(2) class to the extent they seek injunctive and declaratory relief." Id. In essence, Plaintiffs take issue with the Court's exclusion of the statute of limitations (SOL) — susceptible class members from both sub-classes, certification of sub-class I as a 23(b)(3) class, and refusal to certify sub-class II. The Court will address each issue in turn.
I. Adequacy of Representation — Statute of Limitations
The Court found that Plaintiffs Daly and Burgess, having visited Hanauma Bay within the past two years, did not adequately represent those members of the class susceptible to Section 1983's statute of limitations defense. See Order, filed 4/25/02, at 20-21. The Court was concerned (1) about the existence of a conflict of interest stemming from the named-Plaintiffs' incentive to limit membership in the class so as to maximize individual recovery and (2) that the interests of the SOL-susceptible class members would be under-served, even if inadvertently. See id.
Plaintiffs contend that the Court's concerns are in one instance unwarranted, and in the other, inappropriate. With respect to the Court's first concern, Plaintiffs state that they seek to impose a constructive trust over the Hanauma Bay Fund and implement the fluid recovery system whereby funds would be distributed to individuals who present claims, the remainder to be used for the benefit of the class. See Plts' Mot. for Recons., filed 5/09/02, at 5-7. Plaintiffs argue that the Court's second concern is not an appropriate basis for finding representation inadequate. See id. at 7. Defendants contend, on the other hand, that Plaintiffs' constructive trust/fluid recovery plan not only fails to allay the Court's concerns, but actually reinforces the existence of a conflict. See Defs' Opp., filed 5/20/02, at 6-7.
Rule 23(a)(4)'s adequacy of representation requirement protects the due process interests of absent class members. See NEWBERG CONTE, 1 NEWBERG ON CLASS ACTIONS § 3.21 (3d ed. 1992); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). "The premise of a class action is that litigation by representative parties adjudicates the rights of all class members, so basic due process requires that named plaintiffs possess undivided loyalties to absent class members." Broussard v. Meineke Discount Muffler Shops, 155 F.3d 331, 338 (4th Cir. 1998). The Ninth Circuit instructs the Court to "carefully scrutinize the adequacy of representation in all class actions," Rutledge v. Electric Hose Rubber Co., 511 F.2d 668, 673 (9th Cir. 1975), and to consider the following: (1) whether the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) whether the named plaintiffs and counsel will vigorously prosecute the action on behalf of the class. Hanlon, 150 F.3d at 1020.
Notwithstanding Plaintiffs' explanation of their intentions, the Court is not satisfied that the interests of absent SOL-susceptible class members will be adequately represented. The Court agrees with Defendants that a conflict exists in that, according to Plaintiffs' constructive trust/fluid recovery system, the remaining unclaimed funds are to be used for the benefit of the class. See Plts' Mot. for Recons., filed 5/09/02, at 5-7. While the Court recognizes that such benefit may be realized indirectly, the named-Plaintiffs still have an incentive to limit class membership. Fewer individual claims made against the general fund will yield a greater sum to be used for the benefit of class members, including the named-Plaintiffs.
The Court notes that it appears that the fluid recovery system, as a method of aggregating damages as opposed to a distribution method, would not be appropriate here since Section 1983 requires proof of actual damages. See Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1305-06 (9th Cir. 1990) (circumvention of individual proof of injury, as accomplished by fluid recovery, not appropriate where statute requires showing of actual damage); Jolivet v. Deland, 966 F.2d 573 (10th Cir. 1992) (quoting Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986), for the proposition that "[n]o compensatory damages may be awarded absent proof of actual injury" in Section 1983 case).
Additionally, while the Court's concern that the named-Plaintiffs may inadvertently neglect or fail to anticipate issues particular to the SOL-susceptible class members may not be sufficient reason, standing alone, to find representation inadequate, it nevertheless intuitively raises red due process flags. The named-Plaintiffs have less incentive to dedicate resources to overcoming the statute of limitations defense on behalf of the absent class members given that they themselves are not in jeopardy. See Hanlon, 150 F.3d at 1020 (requiring the Court to inquire whether the named plaintiffs and counsel will prosecute the action vigorously on behalf of the class) Moreover, the particular circumstances of each individual SOL-susceptible class member, unknown and consequently ill-represented by the named-Plaintiffs, may be determinative of his/her ability to overcome such defense. Cf. Broussard, 155 F.3d at 342 (discussing equitable tolling).
Plaintiffs indicate an intention to argue (on the SOL-susceptible class members' behalf) that Section 1983's two year statute of limitations is not a bar to recovery based on a continuing harm/violation theory. See Plts' Mot. for Class Certification, filed 3/08/02, at 7. At least arguably, to establish "continuing harm" in this context, the plaintiff must not only show that the government continually enforced the ordinance, but that he/she acted diligently and vigilantly in pursing his/her remedies against the ordinance. See Jordan v. Rocco, 648 F. Supp. 942, 946 (N.D. Ohio 1986); see also Cowell v. Palmer Township, 263 F.3d 286, 295 (3d Cir. 2001) (citing Nat'l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1168 (4th Cir. 1991), and Ocean Acres Ltd. v. Dare County Bd. of Health, 707 F.2d 103, 107 (4th Cir. 1983), for the proposition that the continuing violations doctrine should not provide a means for relieving plaintiffs from their duty to exercise reasonable diligence in pursuing their claims). The Court finds it highly unlikely that the named-Plaintiffs can adequately represent the SOL-susceptible class membership without knowing, or at least being able to anticipate, whether and in what way each member acted diligently and vigilantly.
Finally, it is apparent to the Court that inclusion of the SOL-susceptible class members impedes certification under Rule 23(b). Rule 23(b)(2), as Plaintiffs point out, see Plts' Mot. for Recons., filed 5/09/02, at 10, is premised on homogeneity and cohesiveness. See Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 451 (N.D. Cal. 1994); Allison v. Citgo Petroleum, 151 F.3d 402, 413 (5th Cir. 1998) ("the b(2) class is, by its very nature, assumed to be a homogeneous and cohesive group with few conflicting interests among its members.");Broussard, 155 F.3d at 338 ("The problem of actual and potential conflicts is a matter of particular concern in a case [where the district court certifies the class under a Rule 23(b) class] which does not allow class members to opt out of the class action."). As the preceding discussion demonstrates, the availability of the statute of limitations defense as to certain class members undermines both the homogeneity and cohesiveness of the proposed classes. Similarly, Rule 23(b)(3) requires that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members" and class resolution to be "superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3). As mentioned in the Court's April 25, 2002 Order, limiting the Class to those who visited Hanauma Bay within the past two years preserves Rule 23(b)(3) predominance and superiority; failure to do so would create administrative problems in determining who would be entitled to pursue relief under Section 1983 (two year limitations period), Chapter 480 (four years) and the common law [arguably 6 years. See Order, filed 4/25/02, at 22 n. 6.
Plaintiffs argue that a six year statute of limitation applies to their unauthorized taxation and constructive trust claims. See Plts' Mot. for Recons., filed 5/09/02, at 5. Defendants do not concede this point. See Defs' Opp., filed 5/20/02, at 6 n. 2.
The apparent conflict of interest, due process and Rule 23(b) considerations counsel against inclusion of individuals who visited Hanauma Bay prior to July 10, 1999. Accordingly, the Court finds that reversal of its decision to exclude the SOL-susceptible members is not warranted.
II. Rule 23(b) Certification
A. Sub-class I
Plaintiffs argue in favor of divided certification; specifically that sub-class I be certified as a Rule 23(b)(2) class to the extent they seek injunctive and declaratory relief; and as a Rule 23(b)(3) class to prosecute their money damages claim. See Plts' Mot. for Recons., filed 5/09/02, at 17. Defendants contend that Rule 23(b)(2) certification is inappropriate because "Plaintiffs seek monetary damages that are not `merely incidental' to their claims for injunctive relief." Defs' Opp., filed 5/20/02, at 10. Plaintiffs contend that certification of their injunctive and declaratory claims under Rule 23(b)(2) is not precluded by their other claims for money damages.
The Court stated in its April 25, 2002 Order that Plaintiffs' claims for compensatory (in amounts to be proven at trial) and punitive damages as well as other equitable remedies made it difficult to characterize the damages aspect of the instant lawsuit as incidental to the claim for injunctive relief. See Order, filed 4/25/02, at 28. Moreover, the Court indicated that if the Plaintiffs sought to recoup merely $3.00 each and/or declaratory and injunctive relief only, it would be inclined to find that the money aspect of the case was ancillary to the claims for injunctive and declaratory relief. Based on Plaintiffs' representation that Plaintiff Daly's sub-class seeks no consequential damages other than a refund of the $3.00 entry fee assessed, see Plts' Mot. for Recons., filed 5/09/02, at 13-14, the Court now finds that certification of sub-class I (with respect to both injunctive/declaratory and monetary relief) under Rule 23(b)(2) is appropriate based on the information currently before it.
Plaintiffs' make the following representation: "The relative importance of the injunctive relief sought is underscored when compared to the modest damages of the individual claimants. Those who paid to enter Hanauma will seek to recover the $3.00 charge (or at most three times that amount under HRS chapter 480) from the City and County. Carol Daly does not allege that she suffered any consequential damages as a result of the improper charge." Plts' Mot. for Recons., filed 5/09/02, at 13-14.
Insofar as the Court makes this finding sua sponte, it has discretion to do so pursuant to Rule 23(c)(1). See O'Conner v. Boeing N. Am., Inc., 184 F.R.D. 311, 342 n. 49 (C.D. Cal. 1998) ("As the court has noted throughout this Order, as the evidentiary record develops and dispositive motions are filed, the court may sua sponte alter, amend, or vacate this certification Order at any time before a decision on the merits is made."); In re N. Dist. of Cal. "Dalkon Shield" IUD Products Liability Litigation, 521 F. Supp. 1188, 1192 (N.D. Cal. 1981), rev'd on other grounds, 693 F.2d 547 (9th Cir. 1982) ("Many of the trial court's responsibilities in maintaining a class action may be exercised even though no party to the lawsuit requests such action."); Barefield v. Chevron, USA, Inc., No. C 86-2427, 1988 WL 188433 *2 (N.D. Cal. Dec. 6, 1988) (citing F.R.C.P. 23(c)(1) and Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 633 (9th Cir. 1982), for the proposition that certification orders, including an order certifying a Rule 23(b)(2) class, are "inherently tentative in nature and may be modified as circumstances require"); cf. United States Parole Comm'n v. Geraghty, 445 U.S. 388, 408 (1980) (concluding that court has no sua sponte obligation to certify subclasses). The Court notes that many of the cases cited by Plaintiffs in support of their divided certification argument manifest the propriety of certifying all sub-class I proceedings under Rule 23(b)(2).
When Plaintiffs sue for both monetary damages and equitable relief, as in the instant case, it appears the Court has three options with respect to certification under Rule 23(b): (1) certify the class under Rule 23(b)(3) for all proceedings, (2) certify the class for purposes of pursuing equitable relief pursuant to Rule 23(b)(2) and pursuant to 23(b)(3) for monetary damages ("divided certification" or "hybrid certification"), or (3) certify all proceedings under Rule 23(b)(2) with discretionary notice and opt out pursuant to Rules 23(d)(2) and 23(d)(5). See Lemon v. Int'l Union of Operating Engineers, 216 F.3d 577, 581-82 (7th Cir. 2000). Notably, under option 2 (divided certification), it is likely that the damages claims would need to be adjudicated first to preserve the parties' right to a jury trial. See id. (citing Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962), Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959), Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 898 (7th Cir. 1999)). The Court finds that Option 3 is most appropriate here.
While the Ninth Circuit permits certification under Rule 23(b)(2) when money damages are incidental to injunctive and declaratory relief, see Williams v. Owens-Illinois, Inc., 665 F.2d 918, 928-29 (9th Cir. 1982) (citations omitted), it has not defined "incidental" or elaborated on what makes a particular form of relief "predominant." The Fifth Circuit in Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998), addressed this precise issue. After thoughtful analysis of the different Rule 23(b) categories and the rationale of Rule 23(b)(2), theAllison Court reasoned that "incidental" damages are those "that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief," that are "capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member's circumstances," and that "do not require additional hearings to resolve the disparate merits of each individual's case." Id. at 415. Restricting certification to those classes seeking "incidental" (as defined in Allison) money damages ensures that such damages do not splinter the homogeneity of the class. See Lemon, 216 F.3d at 580 ("A suit for money damages, even if the plaintiffs seek uniform, class-wide equitable relief as well, jeopardizes the presumption of cohesion and homogeneity because individual claims for compensatory or punitive damages typically require judicial inquiry into the particularized merits of each individual plaintiff's claim."). Homogeneity, the hallmark of Rule 23(b)(2), must necessarily be preserved in order to dispense with notice and giving class members the opportunity to opt out before judgment on the merits. See Arnold, 158 F.R.D. at 451 (citing Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 250 (3d Cir.), cert. denied, 421 U.S. 1011 (1975)) (further citations omitted), Barefield, 1988 WL 188433 at *3, Allison, 151 F.3d at 413.
The District Court for the Western District of Washington, citingRobinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001), inquired "whether, in light of all the evidence . . . received and the arguments advanced, the plaintiffs would have brought suit to obtain injunctive relief which they seek even if they could not obtain a monetary recovery" to determine if injunctive relief was "predominant" in its Rule 23(b)(2) analysis. Beck v. Boeing Co., 203 F.R.D. 459, 466 (W.D. Wash. 2001). Under this test and based on Plaintiffs' representations, see Plts' Mot. for Recons., filed 5/20/02, at 14 (given the small damages claim, "it is likely that Daly would pursue her claim for injunctive relief even if compensatory damages were not available"), the Court agrees with Plaintiffs that injunctive relief is predominant. While the Court does not adopt Allison or imply that the Ninth Circuit will, because Allison appears to be stricter than the Robinson test utilized by the Seattle District Court, caution counsels in favor of careful consideration of the requirements imposed by Allison.
The Court finds that the money damages sought by Plaintiffs — $3.00 (potentially trebled) and punitive damages — are incidental to their request for injunctive and declaratory relief. First, all sub-class I members will be entitled to: $3.00 if successful under Section 1983 (Counts V, VI, and VII), $9.00 if liability is established under H.R.S. Chapter 480 (Count IX), and punitive damages if successful on Count XV. Thus, liability flows to the class as a whole as a result of liability on claims that form the basis of both declaratory and injunctive relief. Second, as Plaintiffs represent that they seek no consequential damages in addition to refund of the $3.00 assessed for entry, calculating each member of sub-class I's damages is "not dependent in any significant way on the intangible, subjective differences of each class member's circumstances" and will not "require additional hearings to resolve the disparate merits of each individual's case." Third, sub-class I's punitive and treble damage claims do not render the monetary component predominant in this case. See Barefield, 1988 WL 188433 at *3 (punitive damages does not preclude certification under Rule 23(b)(2)); In re Nasdaq Market-Makers Antitrust Litigation, 169 F.R.D. 493, (S.D.N.Y. 1996) (pursuit of antitrust treble damages insufficient to defeat class certification under Rule 23(b)(2)) If punitive damages are assessed against Defendant Harris, it is apparent to the Court that all members of sub-class I will be entitled to an award uniform in amount.See Barefield, 1988 WL 188433 *3 (class claim for punitive damage does not detract from homogeneity or cohesiveness of the class because it hinges on defendant's conduct to the class as a whole); Beck v. Boeing Co., 203 F.R.D. 459, 466 (W.D. Wash. 2001) ("Liability will hinge on that proof and the punitive damages assessed against defendants (if any) will flow from that finding. There is nothing about plaintiffs' request for punitive damages which disqualifies their case from certification under 23(b)(2)."). Similarly, computation of treble damages, if appropriate, will involve formulaic calculation as opposed to individual hearings and damage determinations. Thus, the Court finds that sub-class I's claims for money damages (limited to $3.00 in compensatory damages, treble and punitive damages) are incidental to their request for injunctive relief. Consequently, sub-class I meets the requirements of Rule 23(b)(2).
The Court anticipates that determination of Count XV (Punitive Damages) will not require "judicial inquiry into the particularized merits of each individual plaintiff's claim." See Lemon, 216 F.3d at 580 (commenting on typical aspect of compensatory and punitive damages).
Additionally, the Court finds certification of subclass I under 23(b)(2) not only permissible, but superior to divided certification and certification under 23(b)(3). See discussion supra n. 10. Although Plaintiffs' argue for divided certification, before such certification is appropriate, "there must be some reason to believe that the assumption of cohesiveness underlying a subsection (b)(2) class action does not apply to the individual claims for monetary damages." Thomas v. Albright, 139 F.3d 227, 235-36 (D.C. Cir. 1998). In light of Plaintiffs' clarification of the damages they seek, the Court finds that sub-class I fits squarely within the 23(b)(2) paradigm. Certification of sub-class I's damage claims under 23(b)(3) is not necessary because, as discussed above, they do not diminish the cohesiveness of the class. With respect to 23(b)(3), "[w]here an action would qualify under either (b)(2) or (b)(3), the courts favor certification under the former because, by compelling inclusion, such actions promote `judicial economy, consistency of result, and binding adjudication more effectively than 23(b)(3).'"Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 451 (N.D. Cal. 1994) (citing Robinson v. Union Carbide Corp., 544 F.2d 1258, 1260 (5th Cir.), cert. denied, 434 U.S. 822 (1977)) (further citations omitted) ; NEWBERG CONTE, 1 NEWBERG ON CLASS ACTIONS § 4.20 (3d ed. 1993) (uniform endorsement by cases and commentators of proposition that when requirements met, certification under (b)(1) and/or (b)(2) is preferable to (b)(3)); but see Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 899 (7th Cir. 1999) (citing Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), for the proposition that "class members' right to notice and an opportunity to opt out should be preserved whenever possible"). Moreover, as discussed, because the class is highly cohesive and homogenous, even with respect to the money damages sought, due process does not require that notice and the opportunity to opt out be given. See Arnold, 158 F.R.D. at 451 (citing Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 250 (3d Cir.), cert. denied, 421 U.S. 1011 (1975)) (further citations omitted), Barefield, 1988 WL 188433 at *3,Allison, 151 F.3d at 413. Upon careful consideration of the circumstances of this case, the Court finds that certification of sub-class I, with the Court retaining discretion under Rule 23(d)(2) and (d)(5) to give notice and opt out opportunities if warranted, (option 3), is most appropriate.
Given the small damage amount sought, it is unlikely that potential sub-class I members would prefer to prosecute the action independently.
B. Sub-class II
Plaintiffs request that the Court certify sub-class II under Rule 23(b)(2) for purposes of prosecuting their claims for injunctive and declaratory relief. Defendants oppose certification on grounds that monetary relief predominates and that sub-class II fails to meet the numerosity requirement of Rule 23(a), thereby rendering certification under any 23(b) category impermissible.
The Court finds that certification of sub-class II under Rule 23(b)(2), even for purposes of pursuing injunctive and declaratory relief only, is inappropriate. As the Court acknowledged in its April 25, 2002 Order, establishing liability with respect to sub-class II's First Amendment claim (Count I) would vary from person to person as "[o]ne beach-goer may have sought entry to leaflet or participate in a protest; another, like Plaintiff Burgess, may have desired to communicate and associate with family members; [and] others likely desired to enter simply to enjoy the recreational activities." See Order, filed 4/25/02, at 31. This demonstrates, that even with respect to injunctive and declaratory relief, in which Plaintiffs request the Court to declare that the challenged ordinance "violates the First Amendment to the United States Constitution . . ." and to enjoin the Defendants from enforcement of the ordinance on this basis, sub-class II lacks the requisite cohesiveness and homogeneity fundamental to Rule 23(b)(2) classes. See discussion supra Section I. Binding absent sub-class II members, especially without providing notice and the opportunity to opt out, is wholly inappropriate given sub-class II's First Amendment claim. Alternatively, the Court finds that sub-class II fails to meet Rule 23(a)(1) numerosity, insofar as it requires Plaintiffs to demonstrate the existence of a class. See Order, filed 4/25/02, at 11-12.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiffs Motion for Reconsideration. Inclusion of individuals who visited Hanauma Bay prior to July 10, 1999, divided certification with respect to sub-class I, and certification of sub-class II under Rule 23(b)(2) for purposes of pursuing injunctive and declaratory relief is not warranted. The Court revises its April 25, 2002 Order conditionally certifying sub-class I under Rule 23(b)(3). Based on the information currently before the Court, and in accordance with Rule 23(c)(1), sub-class I, defined as (1) nonresidents of Hawaii (2) who paid $3.00 to enter the beach area of Hanauma Bay (3) after July 10, 1999(4) who at the time of payment were U.S. citizens, will be certified as a Rule 23(b)(2) class with respect to Counts II, III, IV, V, VI, VII, IX, X, XI, XII, XIII, XIV, and XV. As stated in the April 25, 2002 Order, Plaintiff Burgess may proceed individually with her claims if she so chooses, subject to further motion. The Court notes that Rule 23(d)(2) and (d)(5) provide it with discretion to order sub-class I members be given notice and/or the opportunity to opt out; such measures will be ordered taken if and when circumstances deem it appropriate.
IT IS SO ORDERED.