Moore v. Walter Energy Inc et al

Filing 30

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 9/30/2013. (KAM, )

FILED
2013 Sep-30 PM 08:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LOUISE MOORE,

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Plaintiff,
v.
WALTER COKE, INC.,
Defendant.

CASE NO. 2:11-cv-1391-SLB

MEMORANDUM OPINION
This case is before the court on defendant, Walter Coke, Inc.’s Motion for Partial
Dismissal of Plaintiff’s Second Amended Class Action Complaint, (doc. 22), and plaintiff,
Louise Moore’s Motion for Leave to Amend Complaint, (doc. 26).1 Upon consideration of
the motions, the supporting and opposing memoranda, arguments of counsel and the relevant
law, the court finds, for the reasons stated below, that defendant’s Motion is due to be denied
and plaintiff’s Motion is due to be granted.
STANDARD OF REVIEW
A defendant may move to dismiss a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) if the plaintiff has failed to state a claim upon which relief may be
granted. To survive a 12(b)(6) motion, the complaint “does not need detailed factual
allegations;” however, the “plaintiff’s obligation to provide the ‘grounds’ of his

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.

‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal citations omitted).2 “Factual allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Id. The plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.” Id. at 570.
“When considering a motion to dismiss, all facts set forth in plaintiff’s complaint ‘are
to be accepted as true and the court limits its consideration to the pleadings and exhibits
attached thereto.’” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)
(per curiam) (quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993)). All
“reasonable inferences” are drawn in favor of the plaintiff. St. George v. Pinellas Cnty., 285
F.3d 1334, 1337 (11th Cir. 2002). “[U]nsupported conclusions of law or of mixed fact and
law have long been recognized not to prevent a Rule 12(b)(6) dismissal.” Dalrymple v.
Reno, 334 F.3d 991, 996 (11th Cir. 2003) (quoting Marsh v. Butler Cnty., Ala., 268 F.3d
1014, 1036 n.16 (11th Cir. 2001)).

2

In Bell Atlantic Corp. v. Twombly, the United States Supreme Court abrogated the oftcited standard that “a complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief,” which was set forth in Conley v. Gibson. See Twombly, 550 U.S. at
561 (quoting Conley, 355 U.S. 41, 45-46 (1957)). The Supreme Court stated that the “no set of
facts” standard “is best forgotten as an incomplete, negative gloss on an accepted pleading
standard: once a claim has been stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint.” Id. at 563. The “decision in Twombly
expounded the pleading standard for ‘all civil actions.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953
(2009).
2

FACTUAL BACKGROUND
Plaintiff is a resident citizen of Jefferson County, Alabama, and defendant is a
Delaware Corporation that operates facilities in Jefferson County, Alabama, where it
produces “furnace and foundry coke and slag fiber.” (doc. 20 ¶ 7). Plaintiff alleges that as
a result of its manufacturing operations, defendant has deposited “various waste substances”3
onto her property and has caused these substances to migrate onto her land through air
emissions, surface water, and discharge into waterways. (Id. ¶¶ 10-12.) She claims that as
a result, her property has been contaminated and its value has been reduced. (Id. ¶ 14.)
Therefore, she requests, on behalf of herself and the class she seeks to represent, (id. ¶ 4),
damages “for the time period from March 2, 1995 to the present,” (id. ¶ 15). She further
alleges that remediation is needed “to remove the hazardous substances referenced herein,”
(id. ¶ 14), because they “remain on [her] property and continue to cause damage,” (id. ¶ 15).

3

In her first Amended Complaint, (doc. 6), plaintiff did not specify the exact nature of
these substances, other than alleging that they “includ[ed] but [were] not limited to arsenic, BaP,
and other hazardous substances and waste materials,” (id. ¶ 17). In her Second Amended
Complaint, plaintiff now alleges that these substances specifically include “carcinogenic
polycyclic aromatic hydrocarbons, arsenic, benoz(a)anthracene, benzo(a)pyrene (BaP),
benzo(b)fluoranthene, benzo(k)fluoranthene, dibenzo(a,h)anthracene, chrysene, and
indeno(1,2,3-cd)pyrene.” (Doc. 20 ¶ 10.) These specific substances were also added to the
proposed class definition in response to the court’s concerns that “it must be determined whether
property was damaged, by any number of substances or hazardous materials not delineated by
plaintiff . . . .” (Doc. 18 at 31.)
3

Procedural Background
This is the second Motion to Dismiss in this case. Originally, on June 6, 2011,
plaintiff, on behalf of herself and a proposed class, filed her first Amended Class Action
Complaint, asserting the same state law claims of negligence, wantonness, nuisance, trespass,
and a claim for injunctive relief. (See doc. 6 ¶¶ 24-48.) Defendant subsequently moved to
dismiss the Complaint for (1) untimeliness under Alabama’s twenty-year common law rule
of repose; (2) failure to state a claim under Federal Rule of Civil Procedure 23; and (3)
failure to meet the pleading standards of Federal Rule of Civil Procedure 8(a)(2). (Doc. 9
at 1-2.) This court granted defendant’s motion on the grounds that plaintiff failed to
sufficiently plead an ascertainable class in accordance with the requirements of Rule 23. (See
doc. 18 at 2.) However, the court explicitly gave plaintiff leave to amend her class
allegation. (Id.) Notably, the court did “not address defendant’s argument addressing
whether plaintiff satisfie[d] the four explicit Rule 23 requirements.” (Doc. 18 at 31.)4
The court also dismissed plaintiff’s injunctive relief count because it failed to state a
claim on which relief could be granted (specifically, the court said that plaintiff had not pled
the elements of injunctive relief—namely, inadequate remedy at law and irreparable harm).
(Id. at 40.) The Order entered contemporaneously with the Memorandum Opinion stated that
“[d]efendant’s Motion to Dismiss on the basis of plaintiff’s failure to sufficiently plead an

4

This is important because the argument that plaintiff has not explicitly pled the four
Rule 23(a) requirements is again made by defendant on the Motion for Partial Dismissal that is
now before the court.
4

ascertainable class is GRANTED,” and that “[d]efendant’s Motion to Dismiss regarding
plaintiff’s claim for injunctive relief is GRANTED. Plaintiff’s claim for injunctive relief
is DISMISSED.” (Doc. 19 at 1-2.) It further stated that “[p]laintiff is granted leave to
amend her Complaint and is DIRECTED to file a complete and fully integrated complaint
. . . .” (Doc. 19 at 2.) This has apparently created some confusion as to whether the court
allowed plaintiff to replead her injunctive relief claim. In accordance with the court’s
instructions, plaintiff filed her Second Amended Complaint on October 29, 2012, again
asserting the same state law claims of negligence, wantonness, nuisance, trespass, and a
claim for injunctive relief. (Doc. 20 ¶ 1.)
Defendant’s Motion for Partial Dismissal
Defendant has filed a Motion for Partial Dismissal of Plaintiff’s Second Amended
Class Action Complaint, (doc. 22), and brief in support, (doc. 22-1), alleging that (1) plaintiff
has again failed to plead an ascertainable class; (2) plaintiff has failed to plead a class that
meets the substantive requirements of Federal Rule of Civil Procedure 23(b) (focusing on
predominance); (3) plaintiff has again failed to allege any of the Rule 23(a) requirements;
and (4) plaintiff’s injunctive relief claim should be dismissed because the court never granted
her leave to replead that particular count, and because she only added a formulaic recitation
of the elements to the claim. (Doc. 22 at 1-2; doc. 22-1 at 5, 12, 19, 20.) Plaintiff conceded
in her Opposition, (doc. 25 at 20), that she did not ask the court for leave to replead her claim
for injunctive relief, and simultaneously filed a Motion for Leave to Amend Complaint, (doc.

5

26), regarding the injunctive relief claim. Defendant has filed a Response in Opposition to
the Motion for Leave to Amend. (Doc. 27.)

DISCUSSION
I.

Plaintiff’s Class Action Allegations

Defendant moves to dismiss plaintiff’s putative class allegations for three reasons:
plaintiff again failed to plead an ascertainable class (doc. 22-1 at 5); plaintiff failed to plead
a class that meets the substantive requirements of FED. R. CIV. P. 23(b) (focusing on
predominance) (id. at 12); and plaintiff failed to allege any of the Rule 23(a) requirements
(id. at 19). The court disagrees, and will take each reason in turn.
A.

Ascertainability

It is well-settled that a plaintiff bears the burden of establishing all prerequisites under
the Federal Rules of Civil Procedure before a class action is proper in the district court.
Gilchrist v. Bolger, 733 F.2d 1551, 1556 (11th Cir. 1984); see also Walker v. Jim Dandy Co.,
747 F.2d 1360, 1363 (11th Cir. 1984) (“For all practical purposes, [the Rule 23 prerequisites]
. . . effectively ‘limit the class claims to those fairly encompassed by the named plaintiffs’
claims.’” (quoting Gen. Tel. Co. v. Equal Emp’t Opportunity Comm’n, 446 U.S. 318, 330
(1980))). The foremost of Rule 23's requirements is an ascertainable class: “Although not
explicit in Rule 23 . . . courts have universally recognized that the first essential ingredient
to class treatment is the ascertainability of the class.” Grimes v. Rave Motion Pictures
Birmingham, L.L.C., 264 F.R.D. 659, 663 (N.D. Ala. 2010) (citations omitted).
6

Ascertainability depends on the class definition, and a successful definition is one that is
“precise, objective, and presently ascertainable . . . by reference to objective criteria.”
MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.222 (2004); see also DeBremaecker v.
Short, 433 F.2d 733, 734 (5th Cir. 1970) (per curiam) (“It is elementary that in order to
maintain a class action, the class . . . must be adequately defined and clearly ascertainable.”
(citations omitted)). Unsuccessful class definitions depend on “subjective standards . . . or
terms that depend on resolution of the merits (e.g., persons who were discriminated against).”
MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.222 (2004). Where a proposed class
definition in a complaint is so amorphous that it is not ascertainable, the court may dismiss
the class allegations on motion by the defendant. See Earnest v. Gen. Motors Corp., 923 F.
Supp. 1469, 1473-74 (N.D. Ala. 1996); John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443,
445 (5th Cir. 2007). “Class members need not actually be ascertained prior to certification,
but each individual’s class membership must be ascertainable at some stage in the
proceeding,” meaning it must be “administratively feasible for the court to determine whether
a particular individual is a member.” Bush v. Calloway Consol. Group River City, Inc., 3:10CV-841-J-37MCR, 2012 WL 1016871, at *4 (M.D. Fla. Mar. 26, 2012).
The plaintiff’s first class definition read as follows:
Any and all property owners who have been damaged by the
emission of waste and hazardous materials, including but not
limited to arsenic and BaP, by Defendant’s coke producing
activities from the Jefferson County, Alabama, facilities for the
time period of March 2, 1995 to the present.

7

(Doc. 6 ¶ 23.) The amended class definition states:
Any and all residential property owners whose property or any
part thereof falls within a two mile radius of the boundary of
the Walter Coke Facility at issue as the boundary and radius
are determined on the map attached hereto as Exhibit A,
who have been damaged by the emission of waste and hazardous
materials, specifically carcinogenic polycyclic aromatic
hydrocarbons, arsenic, benoz(a)anthracene, benzo(a)pyrene
(BaP), benzo(b)fluoranthene, benzo(k)fluoranthene,
dibenzo(a,h)anthracene, chrysene, and indeno(1,2,3cd)pyrene, by Defendant’s coke producing activities from the
Jefferson County, Alabama, facilities for the time period of
March 2, 1995, to the present.
(Doc. 20 at 6.)
Plaintiff amended the definition to add the bolded and underlined portion above in
response to the court’s concerns that
“[u]nder the proposed definition, it must be determined whether
property was damaged, by any number of substances or
hazardous materials not delineated by plaintiff, and whether or
not such damage was caused by the activities at defendant’s
facilities. Moreover, the class definition includes ‘any and all
property owners’ who sustained such damage, opening the
inquiry to any property, without geographic bounds, where the
alleged hazardous emissions could have traveled by air or
migrated through groundwater.”
(Doc. 18 at 31.) The court dismissed the class claims of the first Amended Complaint on
motion by the defendant because the court found the class definition “so open-ended that it
could potentially include any property owner anywhere depending on how far the alleged
emissions and groundwater migrations traveled.” (Id. at 29-30.) In other words, without any

8

objective geographical bounds, it was facially apparent that the class was not ascertainable
because the class–by definition–reached as far as wind and water go.
Defendant argues that the class is still not ascertainable because these problems
remain: the term “residential owner” is undefined, determining whether a property is
“damaged” is merits-based, whether it was caused by the defendant’s activities is meritsbased, and whether this was associated with the defendant’s conduct since March 2, 19955
(and not the operations beforehand) will be difficult to determine. (Doc. 22-1 at 8.)
These arguments are premature. When other courts have dismissed a plaintiff’s
complaint on the pleadings (i.e., before a motion for certification has been filed or any
preliminary discovery taken place) based on ascertainability, the class definitions have been

5

Though the court will not discuss the problems with the date limitation in this opinion,
the court agrees with defendant that this is a potential problem. However, it is worth noting that
“[c]ourts adjudicating pollution or toxic tort class actions tend to employ a . . . focused rubric, as
classes may be somewhat more difficult to compose in cases involving, for instance, air or
groundwater pollution in a particular geographic area. In these cases, courts often require
plaintiffs to satisfy a two-part test: they must (1) specify a particular group that was harmed
during a particular time frame, in a particular location, in a particular way; and (2) facilitate a
court’s ability to ascertain its membership in some objective manner. The first prong of this test
stipulates that plaintiffs construct a class definition that limits the boundaries of the class based
on geography, time, and injury suffered; the second prong echoes the test for administrative
feasibility, . . . [so that] the defined class is manageable and does not require extensive individual
factual inquiry.” 1 NEWBERG ON CLASS ACTIONS § 3:3 (5th ed.) (emphasis added).
9

intrinsically indefinite. For instance, the defendant cites in his brief a case in which the
district court dismissed a class complaint on a 12(b)(6) motion where the proposed class
definition consisted of:
National policyholders who sustained property
damages to . . . structures located in the State of
Louisiana on or after August 29, 2005 as a result
of hurricanes Katrina and/or Rita whose losses
were adjusted by or on behalf of National on an
‘actual cash value’ basis or ‘replacement cost’
basis for whom National . . . created a damages
assessment or estimate of costs to repair or
replace said damaged property that indicates the
involvement of more than one trade [contractor].
John v. Nat’l Sec. Fire & Cas. Co., No. 06-1407, 2006 WL 3228409, at *4 (W.D. La. 2006).
In finding the class not ascertainable, the court suggested that identifying even the first
absent member of the class would necessitate making individualized value judgments of who
needed what, when, and for what price, building by building. Id. On appeal, the panel did not
reach the issue as to whether this particular definition was ascertainable, but it did note when
it is appropriate to dismiss a class allegation on the pleadings alone: “[w]here it is facially
apparent from the pleadings that there is no ascertainable class.” John v. Nat’l Sec. Fire &
Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007).
In another example, a district court struck a class complaint on the pleadings when the
proposed class definition included: “all litigants who had personal-injury actions pending in
any jurisdiction of the United States alleging damages as a result of ingestion of Vioxx,
subject to the ‘all in’ provisions of the [Master Settlement Agreement] [who] consented to
10

. . . the terms of the MSA for fear of losing their retained counsel.” In re Vioxx Products
Liab. Litig., MDL No. 1657, 2012 WL 2061883, at *3 (E.D. La. June 6, 2012). The court
found that the class would never be ascertainable–at least not before a jury found facts on
each potential class member–because, by definition, membership itself depended upon
“inherently subjective” criteria such as the “specific circumstances of a purported class
member’s attorney-client relationship and [his or her] individualized decision to enroll in the
MSA.” Id. This example is somewhat atypical, however, since it involves a motion to strike
a class complaint for a case that, while not having the benefit of pre-certification discovery,
hardly needed it: the case was one of thousands in an already-settled, seven-years-andcounting MDL proceeding. Plaintiffs usually do not have available such an abundance of prediscovery evidence from which to posture their class definition and claims.
Another amorphous definition appears in Earnest v. Gen. Motors Corp., where the
court struck the class allegations on the pleadings because the class definition included “any
persons in the State of Alabama who own or lease, or have in the past owned or leased
vehicles equipped with engines and/or engine control modules manufactured, sold,
assembled and/or designed by the Defendants such as those in the said vehicles of the named
Plaintiffs.” 923 F. Supp. 1469, 1473 (N.D. Ala. 1996). This failed to meet “the minimum
standards of definiteness” because it could “potentially mean anything . . . at any particular
time,” to the point that “membership in the class could fluctuate as persons who either owned
or leased motor vehicles ‘such as plaintiffs'’ drove those vehicles through the state, entering

11

at one border and exiting a few hours later at another.” Id. at 1473-74 & n.5. Without any
objective, permanent boundary enabling notification or preclusion, the definition was a sieve.
Outside of inherently subjective and indeterminate class definitions, striking a class
claim before a motion for certification (and before the benefit of pre-certification discovery)
is rare. Defendant cites other cases in its brief, but none of them involve a court dismissing
a claim so early on the grounds that it was “facially apparent . . . that there is no ascertainable
class.” John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007). This makes
sense: the class definition put forth in the complaint is often a working definition–one that
will serve to identify relevant inquiries in pre-certification discovery. See 7AA CHARLES
ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1785.4 at n.1 (3d ed.) (“In
making a determination of whether an action may proceed as a class action, the court
necessarily must pass on the appropriateness of the class proposed by plaintiff . . . [the class]
definition may be relevant to future discovery and to trial preparation, but it remains subject
to change before the decision on the merits and does not establish the class that will be bound
by the judgment.”). It might be tweaked as the pre-certification discovery process sheds light
on the contours of the potential class. See Campbell v. First Am. Title Ins. Co., 269 F.R.D.
68, 74 (D. Me. 2010) (“A court may, in an exercise of its discretion, revise a proposed class
definition to avoid [problems].”).
It is important to keep in mind the overarching reason that a class must be
ascertainable: to determine who will be bound by rulings once the class is certified. See

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MANUAL

FOR

COMPLEX LITIGATION (FOURTH) § 21.222 (2004). For a 23(b)(3) class,

ascertainability is also important because the “best notice practicable” must be given to all
class members, which often requires a list of addresses. See Krueger v. Wyeth, Inc., No. 03CV-2496, 2011 WL 8984448, at *2 (S.D. Cal. July 13, 2011) (“The California Court of
Appeals describes the purpose of the ascertainability requirement in the following way:
Ascertainability is required in order to give notice to putative class members as to whom the
judgment in the action will be res judicata.”) (internal quotations and citations omitted).
Plaintiff’s new proposed definition is not so indeterminate or subjective that it is
“facially apparent . . . that there is no ascertainable class.” John, 501 F.3d at 445. As noted
above, plaintiff proposes in her Second Amended Complaint the following class definition:
Any and all residential property owners whose
property or any part thereof falls within a two
mile radius of the boundary of the Walter Coke
Facility at issue as the boundary and radius are
determined on the map attached hereto as
Exhibit A, who have been damaged by the
emission of waste and hazardous materials,
specifically carcinogenic polycycic aromatic
hydr o car bons, ar senic, benzo(a)anthr acene,
benzo(a)pyrene (BaP), benzo(b)fluoranthene,
benzo(k)fluoranthene, dibenzo(a
,h)anthracene, chrysene, and indeno (1,2,3cd)pyrene, by Defendant’s coke producing
activities from the Jefferson County, Alabama,
facilities for the time period of March 2, 1995 to
the present.
(Doc. 20 at 6.) The most significant improvement for present purposes is the two-mile
boundary. The objective boundary transforms the class from being one whose outer
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limits were determined by long-term transient movement of wind and water (which is
obviously not ascertainable), to being one whose outer limits are marked on a map in
plaintiff’s Exhibit A. (Doc. 20-1 at 2.) Defendant correctly points out that this only
determines who “is not a class member,” (doc. 22-1 at 7), but the significance of this
should not be underplayed. The potential class now has a limited number of members
whose addresses can be ascertained.
Defendant emphasizes in its brief the remaining problem in the definition: it only
includes those “who have been damaged . . . by Defendant’s coke producing activities
. . . .” (See doc. 22-1 at 7-8.) This language echoes language that rendered the class
definitions in other cases unfit upon a motion for certification. See, e.g., Benefield v.
Int’l Paper Co., 270 F.R.D. 640, 644-45 (M.D. Ala. 2010) (finding a class not
ascertainable because of “contaminated by” language in the definition). But it does not
resemble the sort of criteria that the few other cases have found so inherently subjective
as to make it facially apparent that there is no ascertainable class from the pleadings
alone. That sort of criteria required the court to make value judgments that are only
measurable by a jury, such as an individual’s specific needs or the motivations of
parties within an attorney-client relationship. The likelihood of property damage within
a two-mile radius due to contamination can at least plausibly be measured objectively.

14

In the future, the “damaged by” language might prevent plaintiff’s class from
being certified, and it might not. But plaintiff is entitled to pre-certification discovery
to determine which will be the case.
After reviewing expert testimony and other evidence, other courts have had a
better vantage point from which to decide why a definition fails or succeeds. For
instance, in a strikingly similar case, the plaintiffs’ two-mile boundary failed on motion
for certification because their experts could not say whether every home within the
boundary showed signs of damages that could have been caused by defendant’s papermanufacturing activity. See Benefield, 270 F.R.D. at 644.
Nevertheless, the court finds that it is not facially apparent that plaintiff’s class
as defined in the Second Amended Complaint is not ascertainable. Defendant’s motion
to dismiss on that ground is denied.
B.

The Rule 23(b) inquiry

The Federal Rules of Civil Procedure require specific conditions to be met if a
lawsuit is to proceed as a class action. Rule 23(a) contains four prerequisites,
commonly referred to as the requirements of numerosity, commonality, typicality, and
adequacy of representation. To represent a class of absent parties, a plaintiff must
show that it and the class meet the four requirements of Rule 23(a) and the
requirements of at least one of the categories in Rule 23(b). The requirements of Rule
23 prevent a plaintiff from representing absent entities when it would violate due

15

process. See Hansberry v. Lee, 311 U.S. 32, 44 (1940); Phillips Petroleum Co. v.
Shutts, 472 U.S. 797, 809-812 (1985). The inquiry determines whether a class should
be certified so that the case can move forward without the presence or affirmative
consent of people whose interests the case puts at stake. Shutts, 472 U.S. at 812-813.
Before class certification, no absent interests are at stake, and when class certification
is denied, only the named plaintiffs–not the absent class members plaintiff sought to
represent–are bound by the judgment. Smith v. Bayer Corp., 131 S. Ct. 2368, 2379-80
(2011).
Before a motion for certification, a plaintiff’s complaint should simply put the
defendant on fair notice of “potentially viable” class claims that are being brought
against it. Cf. Burton v. Dist. of Columbia, 277 F.R.D. 224, 230 (D.D.C. 2011) (“The
Supreme Court's ruling in Wal-Mart confirms that pre-certification discovery should
ordinarily be available where a plaintiff has alleged a potentially viable class claim
because Wal-Mart emphasizes that the district court’s class certification determination
must rest on a ‘rigorous analysis’ to ensure ‘[a]ctual, not presumed, conformance’ with
Rule 23.”) (emphasis added).
Defendants argue in their brief that “class claims that fail to meet the
requirements of Rule 23 may be properly dismissed by granting a Rule 12(b)(6)
motion.” (Doc. 22-1 at 4-5) (citing McCrary v. Stifel, Nicolaus & Co., 687 F.3d 1052,
1059 (8th Cir. 2012)). In McCrary, the district court had deferred its decision on a

16

plaintiff’s pending motion for class certification and instead dismissed all–both class
and individual–claims on the pleadings for failure to meet the requirements of Rule
23(b)(3). Id. at 1055-56. On appeal plaintiffs argued that a district court must first
analyze a plaintiff’s individual claims before analyzing (or dismissing) class claims.
Id. at 1059. After noting that the proper question on a motion to dismiss “is not whether
a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence
to support his [or her] claims,” the court of appeals held that the district court did not
have to analyze individual claims first, and affirmed the dismissal of class claims. Id.
at 1057-59 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)) (internal quotation
marks omitted). However, the holding in McCrary is too narrow to help defendant in
the present case.
For clarity, it should be noted that defendant’s quotation of McCrary omits a
critical clause. The full sentence reads: “As discussed above, class claims that fail to
meet the requirements of Rule 23 may be properly dismissed by granting a Rule
12(b)(6) motion.” McCrary, 687 F.3d at 1059 (emphasis added). The “above”
discussion to which the court is referring cites three cases for the proposition that “a
court may dismiss securities fraud allegations similar to the ones in this case when the
claims do not satisfy Rule 23.” Id. at 1057 (emphasis added). All three cases involve
certain securities fraud claims that are categorically dependant on each individual

17

plaintiff’s state of mind and relationship with their broker, and thus never appropriate
for class treatment.
In the first case, Rowe v. Morgan Stanley Dean Witter, the court defined the
main claim, “churning,” as “a shorthand expression for a type of fraudulent conduct in
a broker-customer/investor relationship.” 191 F.R.D. 398, 407 (D.N.J. 1999) (quoting
Craighead v. E.F. Hutton & Co., 899 F.2d 485, 489 (6th Cir.1990)). Churning occurs
“when a broker ‘overtrades’ the account of a customer to generate inflated sales
commissions, in violation of Rule 10(b)-5,” and as such “is necessarily premised on
. . . the investment objectives of a given plaintiff.” Rowe, 191 F.R.D. at 410 (emphasis
added). Individuality was likewise embedded in the elements of the claims asserted in
the other two cases. See Moscarelli v. Stamm, 288 F. Supp. 453, 462 (E.D.N.Y. 1968)
(dismissing class claims where all “[f]our theories of recovery . . .suggested in the
complaint . . . disclose individual factors inherent in the relationship between broker
and customer involved in the various purchases.”); Souter v. Tatro, No. 03-CV-6141,
2004 WL 1574562, at *7 (W.D.N.Y. 2004) (dismissing class claims because “fraud
claims based on individualized misrepresentations . . . made to each member of the
proposed class . . . [require] proof of the statements made to each plaintiff, the nature
of the varying material misrepresentations, and the reliance of each plaintiff upon those
misrepresentations” (quoting Moore v. PaineWebber, Inc., 306 F.3d 1247, 1253 (2d
Cir. 2002)) (internal quotation marks omitted)).

18

In other words, some claims in McCrary depended on each potential class
member’s individual investment needs to determine whether the defendants’ trades
were “excessive in size and frequent” as applied to them, and other claims depended
on the absent class member’s relevant state of mind (such as their reliance or
awareness). McCrary, 687 F.3d at 1057. The holding in McCrary is narrow in that it
only speaks to certain types of securities fraud claims, which by their very elements are
incapable of class-wide proof.
Defendant also draws attention to Kamm v. Cal. City Dev. Co., 509 F.2d 205 (9th
Cir. 1975), in which the court dismissed class claims “without discovery where it was
clear from the complaint and associated public records that the class could not satisfy
Rule 23(b).” (Doc. 28 at 8.) Kamm adds nothing new. It is distinguishable both as a
securities fraud case and as a case in which well-underway parallel proceedings brought
by state officials were clearly superior to the class action proposed. Kamm, 509 F.2d
at 207, 211.
Unlike the plaintiffs in the securities fraud cases above, plaintiff is “entitled to
offer evidence to support [her class] claims.” McCrary, 687 F.3d at 1057. Plaintiff
does not assert statutory claims that categorically depend on an individualized inquiry,
such as the inner workings and motivations of a broker-client relationship. If her
allegations are true, which the court is required to assume at this stage, plaintiff’s class
members all have the same, simple relationship with defendant: they own pieces of

19

property around defendant’s facility, a facility that allegedly emits harmful substances
on property owned by plaintiff and proposed class members. And if these allegations
are true, it is at least plausible that plaintiff could prove the elements of trespass,
nuisance, negligence, wantonness, and injunctive relief on a class-wide basis. None of
these causes of action are categorically unfit for class treatment. This is not to say that
once plaintiff offers her evidence it will be sufficient to certify a class, only that she
is entitled to offer it and argue its merit.
Defendant’s brief can perhaps be read to argue that claims for nuisance, trespass,
and negligence in the environmental mass tort context are categorically unfit for class
treatment, (see doc. 22-1 at 15-16), at least under a Rule 23(b)(3) theory.6 (But see doc.
22-1 at 18 n.9) (“[T]his case is analogous to Fisher and Labauve and distinct from the
very few environmental contamination cases certified for class treatment under Rule
23(b)(3).”) Defendant’s brief states that “[d]istrict court[s] in Alabama and elsewhere
routinely hold that [these tort claims] . . . cannot be certified under Rule 23(b)(3)
because individual, rather than common issues, predominate,” and cites a string of
cases, each of which was decided on a motion for class certification. (Id. at 15-16.) But
precedent concerning motions for class certification cannot help defendant at this stage

6

It is unclear at this time under which 23(b) theory plaintiff might attempt to certify a
class, since the complaint does not make it explicit. As defendant points out in its brief, the claim
for monetary damages makes 23(b)(3) the most likely candidate.
20

unless the case holds that no plaintiff can state a claim for class-wide relief based on
these tort claims.
LaBauve approaches such a holding. In two “illustrations,” the court analyzed
why the elements of claims for indirect trespass and nuisance under Alabama law are
“chock full of individual-specific inquiries” that “counsel[] strongly against class
certification.” LaBauve v. Olin Corp., 231 F.R.D. 632, 673, 678 (S.D. Ala. 2005). The
court found that the first and fourth elements of trespass–“an invasion affecting an
interest in the exclusive possession of his property” and “substantial damage to the
res”–require “substantial individualized proof and legal argument.” Id. at 673. But the
court did not expound on whether this problem is truly inherent and debilitating in the
elements rather than the particular facts of a case. As for nuisance, the court held that
proving “(1)activities that worked hurt, inconvenience, or damage to the complaining
party . . . (3) causal relation between the conduct or activity complained of and the hurt,
inconvenience, or damage sued for, and (4) damages” requires “considerable
individualized showings.” Id.
Factual circumstances, however, are important. While noting the very real
problems with class action treatment for trespass and nuisance claims, the court in
LaBauve qualified that it had the benefit of having “pored over extensive record
evidence.” LaBauve, 231 F.R.D. at 674. What the court could not find in that record
was an “across-the-board formula” that could propel class claims forward in the case.

21

Id. at 676. Perhaps factual differences in this case will allow plaintiff to uncover such
a formula in pre-certification discovery.
Denying defendant’s motion to dismiss at this early stage heeds warnings about
the case-specific information required to decide class certification issues. The Eleventh
Circuit has stated that “precedent . . . counsels that the parties’ pleadings alone are
often not sufficient to establish whether class certification is proper, and the district
court will need to go beyond the pleadings and permit some discovery and/or an
evidentiary hearing to determine whether a class may be certified.” Mills v. Foremost
Ins. Co., 511 F.3d 1300, 1309 (11th Cir. 2009). After the parties conduct such
discovery, a court will better “understand the claims, defenses, relevant facts, and
applicable substantive law in order to make a meaningful determination of the
certification issues.” Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir.
1996); see also Fisher v. Ciba Specialty Chemicals Corp., 238 F.R.D. 273, 317 n. 51
(S.D. Ala. 2006) (stating that Castano indicates “it is ‘necessary’ for a district court to
go beyond the pleadings for Rule 23 analysis . . . .”). In fact, such caution was the
apparent reason for the 2003 amendment to Rule 23(c)(1)(A), which replaced the
mandate that a court determine whether to certify a class “as soon as practicable” with
the current, more lenient time frame: “at an early practicable time.” See FED . R. CIV .
P. Advisory committee’s notes, 2003 Amendments.

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For the reasons stated above, defendant’s motion to dismiss on the ground that
plaintiff has failed to meet the requirements of Rule 23(b) is due to be denied.
C.

Alleging Rule 23 Requirements

Defendant asserts that plaintiff’s class complaint should be dismissed because
it fails “to plead facts in support of Fed. R. Civ. P. 23(a)’s four explicit class
requirements.” (Doc. 22-1 at 19.)

The Eleventh Circuit has said that “[i]n a class

action, it is sufficient that a complaint generally give the defendant notice of the nature
and scope of the plaintiffs’ claims; it is not necessary that the class representatives
plead evidence or otherwise meet any burden beyond the minimal Rule 8 standard.”
United States v. Baxter Int'l, Inc., 345 F.3d 866, 882 (11th Cir. 2003). Other than that,
however, case law is sparse as to the threshold style and content of a class action
complaint because class complaints are so rarely dismissed on the pleadings alone.
Defendant’s argument is apparently that, at a bare minimum, plaintiff should have
recited Rule 23, inserting her facts into the correct subsections. (Doc. 9-1 at 25.) Facing
the same contention, one court’s survey of various commentaries on class actions7
concludes, unremarkably, that “the complaint must set forth facts sufficient to show

7

The survey includes 3B JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE §
23.02-2 (“[T]he complaint . . . should allege the existence of necessary facts showing that the
prerequisites of (Rule 23(a)) have been satisfied.”); 7A CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE & PROCEDURE § 1798 (“[F]or an action to go forward under Rule
23, the pleader must establish that the four requirements set forth in subdivision (a) are satisfied
and that the action falls within one of the three categories described in subdivision (b).”); and 4
NEWBERG, CLASS ACTIONS § 7985 (“As a general proposition, facts illustrating compliance with
Rule 23 prerequisites should be accommodated by the complaint.”).
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that the case complies with (the) four criteria listed in Rule 23(a), and that it falls
within one of the subsections of Rule 23(b).” Peak v. Topeka Hous. Auth., City of
Topeka, 78 F.R.D. 78, 81-83 (D. Kan. 1978).
Plaintiff’s complaint includes the necessary ingredients. Reading the Second
Amended Complaint liberally, sufficient facts are alleged to support the requirements
of Rule 23(a)(1) and Rule 23(a)(2). Rule 23(a)(1) (numerosity) is supported by the
two-mile radius in the class definition. The exact number of class members is not
needed; only the approximate size. See United States v. Baxter Int’l, Inc., 345 F.3d
866, 882 (11th Cir. 2003) (“It is not necessary . . . that class members be specifically
identified; the plaintiff need not name names. In addition, the complaint need not set
forth the exact number of class members. It is sufficient to indicate the approximate
size of the class and provide or describe facts making ultimate identification of class
members possible when that identification becomes necessary.”). Rule 23(a)(2)
(commonality) is supported by allegations in the Second Amended Complaint such as
“[p]laintiff brings this action for the damages that she (and the Class she seeks to
represent) have been subjected to, and are currently subjected to through today, on the
property they own.” (Doc. 20 ¶ 4.) Rule 23(a)(3) (typicality) presents more of a
problem because unlike Rules 23(a)(1) and (2), it seems more difficult to allege solely
through facts. However, “[t]he commonality and typicality requirements of Rule 23(a)
tend to merge[,] [b]oth serv[ing] as guideposts for determining whether under the

24

particular circumstances maintenance of a class action is economical and whether the
named plaintiff’s claim and the class claims are . . . interrelated . . . .” Wal-Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 n.5 (2011). Therefore, typicality can be
inferred from the same allegations that support commonality.
Finally, “adequate representation is usually presumed.” 6 Newberg on Class
Actions §18:46. Plaintiff did state that “[p]laintiff Moore is a representative for the
Class listed below.” (Doc. 20 ¶ 5.) The court finds adequacy of representation can be
inferred here under a liberal reading of the Complaint.
For the reasons stated above, defendant’s motion to dismiss on the ground that
the complaint fails to allege any of the explicit Rule 23 requirements is denied.
II.

Plaintiff’s Claim for Injunctive Relief

“[T]o obtain a permanent injunction, a party must show: (1) that he has prevailed
in establishing the violation of the right asserted in his complaint; (2) there is no
adequate remedy at law for the violation of this right; and (3) irreparable harm will
result if the court does not order injunctive relief.” Alabama v. U.S. Army Corps of
Engineers, 424 F.3d 1117, 1128 (11th Cir. 2005).
Additionally, because injunctive relief is not a cause of action on its own, but
rather a remedy, it “must be based upon a claim which would withstand scrutiny under
Fed. R. Civ .P. 12(b)(6).” Kimerling Truck Parts, Inc. v. City of Birmingham, No. CV-

25

04-CO-00767-S, 2005 WL 4157440, at *6 (N.D. Ala. Nov. 17, 2005) aff’d sub nom.
Kimerling Truck Parts, Inc. v. Feigelson, 180 F. App’x 846 (11th Cir. 2006).
Defendant argues that plaintiff’s claim for injunctive relief should be dismissed
with prejudice because: (1) the court did not grant her leave to replead in its previous
Order, and (2) her Second Amended Complaint alleges only a “formulaic recitation of
the elements.” (Doc. 22-1 at 20.)
The previous Order dismissing plaintiff’s claim for injunctive relief did not say
whether the dismissal was with or without prejudice. (See doc. 18 at 40-41.) In light of
this ambiguity, plaintiff included an amended claim for injunctive relief in its Second
Amended Complaint. (Doc. 20 at 11-12.) Conceding that the inclusion violated Rule
15(a), plaintiff now requests that the court grant leave “to allow the filing of a Third
Amended Complaint to include an injunctive relief claim.” (Doc. 26 at 2.) The court
will grant plaintiff leave to do so with respect to the claim for injunctive relief.
Plaintiff alleges the elements of a claim for injunctive relief in her Second
Amended Complaint as well as facts that arguably support the claim: “[p]laintiff’s
claim is for property damage to the property listed above for contamination emanating
from Defendant’s property. Plaintiff’s property has been, and is being, damaged in that
it has lessened value, and Plaintiff is in need of remediation to remove the hazardous
substances referenced herein.” (Doc. 20 ¶ 14.) Without injunctive relief, plaintiff
alleges that “the hazardous substances . . . [will] continue to emanate from Defendant’s

26

facilities . . . [and will] remain on Plaintiff’s property and continue to cause damage.”
(Id. ¶ 15.) Assuming these facts are true, plaintiff’s assertion that “there is continuing
irreparable injury to Plaintiff and the Class” and that “Plaintiff and the Class lack
adequate remedy at law,” (id. ¶ 42) enables her to request “an Order enjoining
Defendant from continuing the conduct described above and requir[ing] Defendant to
remove contaminated soil from the affected property.” (Id. ¶ 41).
It is well established that cases involving continuing harm to land may be
appropriate candidates for injunctive relief. See Shell Offshore Inc. v. Greenpeace, Inc.,
864 F. Supp. 2d 839, 850 (D. Alaska 2012) (“[I]f plaintiff demonstrates that effective
legal relief can be secured only by a multiplicity of actions, as, for example, when the
injury is of a continuing nature . . . [or] if defendant’s acts pose a threat to some unique
property interest . . . the court may issue an injunction . . . .” (quoting 11A CHARLES
ALAN WRIGHT & ARTHUR R. MILLER , FEDERAL PRACTICE AND PROCEDURE § 2944 (2d
ed. 1987))); see also, e.g., In re Gen. Dev. Corp., 84 F.3d 1364, 1370 (11th Cir. 1996)
(“[G]iven the unique nature of land, it is well established that money damages to a
purchaser of land is inadequate.”); OM Group, Inc. v. Mooney, No. 2:05-CV-546, 2006
WL 68791, at *9 (M.D. Fla. 2006) (noting that a substantial threat of losing one’s home
constitutes irreparable harm). Allowing plaintiff to amend her complaint to dot the i’s
of this claim will be allowed.

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The court will grant plaintiff’s Motion for Leave to Amend Complaint to replead
a claim for injunctive relief and deny defendant’s Motion for Partial Dismissal.
CONCLUSION
For the reasons stated above and as directed in the Order entered
contemporaneously herewith:
Defendant’s Motion to Dismiss on the basis that plaintiff failed to plead an
ascertainable class will be denied because the court finds the proposed definition is
sufficient at this stage.
The defendant’s motion to dismiss on the basis of the inability of plaintiff to
show a viable Rule 23(b) class will be denied because the court finds that defendant’s
motion is premature at this stage.
The defendant’s motion to dismiss on the basis of plaintiff’s omission of Rule
23's elements will be denied because plaintiff’s complaint alleges sufficient facts to
assert a plausible Rule 23 class.
The defendant’s motion to dismiss on the basis of plaintiff’s failure to
sufficiently plead a valid state law claim of injunctive relief will be denied, and the
court will grant plaintiff leave to amend the complaint to add that count.
DONE, this 30th day of September, 2013.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE
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