Opinion
Civil Action No. 00-1317 Section "K" (1)
July 26, 2001
Before the Court is plaintiff Dewey Street's Request to Send Notice of Denial of Class Certification. Plaintiff previously filed a Motion for Class Certification which was denied by this Court on May 25, 2001. In this motion, plaintiff invokes Fed.R.Civ.P. 23(d)(2) to obtain an order from this court requiring notice be given to the members of the putative class that the certification was denied. In support of this request, plaintiff relies primarily on a citation from Manual for Complex Litigation for Complex Litigation (3d ed. 2001) at 269; C. Wright, A. Miller M. Kane, 7B Federal Practice Procedure, § 1793, pp. 308-09 n. 45 (2d ed. 1986), and the language of the cited rule. Counsel for plaintiff has presented no proof of actual prejudice to any of the putative class members; rather, plaintiffs counsel invoked the specter of the statute of limitation.
The Court finds plaintiffs arguments unpersuasive. In this instance, there has been no dismissal or compromise. Rather, the only action taken was the denial of class certification. As such, the Court finds the extensive analysis found in Rineheart v. Ciba-Geigy Corp., 190 F.R.D. 197 (M.D.La. 1999) persuasive and adopts the analysis found therein. As that court concluded, there is no jurisprudential precedent in the Fifth Circuit or in other districts for public notice of the mere denial of class certification when dismissal or settlement is not involved. Id. at 201.
In addition, this court is leery of ordering such a notice as it might be perceived by some potential plaintiffs as "a tacit suggestion of the Court that a lawsuit should be filed under the circumstances of the present case." Id. at 201 n. 17. As stated in Maddox Starbuck. Ltd. v. British Airways, 97 F.R.D. 395 (S.D.N.Y. 1983):
Furthermore, any concern about possible prejudice to absent class members is outweighed by an important policy of our jurisprudence. In determining whether notice should be given to putative class members when class certification has been denied, the Court will take care to avoid giving rise to barratry. Cf. Norman v. Arcs Equities Corp., 72 F.R.D. 502, 504 (S.D.N.Y. 1976). If this Court were to require notice to the putative class members without an adequate showing of reliance, not only would it be sanctioning barratry, but it would be actively promoting.Id. at 397. Accordingly,
IT IS ORDERED that plaintiff's Request to Send Notice of Denial of Class Certification is DENIED.