Hurt v. Shelby County Board of Education et al

Filing 50

MEMORANDUM OPINION AND ORDER DENYING 27 MOTION to Certify Class. Signed by Judge Virginia Emerson Hopkins on 8/21/2014. (JLC)

FILED
2014 Aug-21 PM 03:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KRISTIN HURT, et al,
Plaintiffs,
v.
SHELBY COUNTY BOARD OF
EDUCATION, et al,
Defendants.

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) Case No.: 2:13-CV-230-VEH
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MEMORANDUM OPINION AND ORDER
INTRODUCTION
Before the court is a Motion for Class Certification under Federal Rule of Civil
Procedure 23. Doc. 27. The plaintiffs seek to certify an unnumbered class of female
students who matriculated through the Shelby County public school system during
the roughly twenty-five year period one of the defendants, the Shelby County Board
of Education, employed another of the defendants, Daniel M. Acker, Jr., as a teacher
and school bus driver. The plaintiffs specifically ask this court to certify a class
encompassing the following definition:
Any current or former female student during the time period that Dan Acker
worked for Shelby County School Board who was either injured, sexually
harassed, abused or molested by Dan Acker or who witnessed such conduct or
who was exposed to a sexually hostile educational environment through

Acker’s conduct.
Id. at 2. The named defendants include not only the Shelby County Board of
Education and Mr. Acker but also Dr. Lee Doebler, PhD, and Steven Martin, who
were members of the Board during the events in question.
As explained more fully below, the court finds several infirmities with the
plaintiffs’ proposed class definition. First, the putative class is not sufficiently
ascertainable. The proposed definition employs conclusory language to identify
certain class members – that is, it uses legal terminology whose application is linked
to the ultimate merits of this case. Class eligibility would (at least partially) hinge on
finding that any given plaintiff had a viable claim against Mr. Acker. The class
definition is thus impermissibly “fail-safe.” Although the plaintiffs could potentially
revise the definition to eliminate this discrepancy, it would jeopardize their ability to
meet Rule 23's numerosity requirement.
This is not the plaintiffs’ only problem here. Even were the putative class
ascertainable, the class lacks the required commonality to sustain certification.
Although the class plaintiffs possesses certain similarities, their essential contentions
against the defendants vary in certain material respects. Likewise, the named
plaintiffs’ claims are not adequately typical of those that other class members would
hypothetically allege. While the named plaintiffs all claim to be victims of Mr.
2

Acker’s molestation, the class they purport to represent would include an expansive
pool of female students who were not even aware of Mr. Acker’s predatory conduct.
For all of these reasons, Rule 23 therefore dictates that the court DENY certification.
STATEMENT OF THE CASE
I.

Factual Background1
Kristen Hurt and the four other anonymous plaintiffs were, at one point or

another relevant to this action, fourth grade students at elementary schools within the
Shelby County public school system. The Shelby County Board of Education (“the
Board”) operates public schools within Shelby County, Alabama. Mr. Acker was an
elementary school teacher and school bus driver within that school system from
approximately 1984 to 2009.2 He taught all of the plaintiffs fourth grade at various
points during that time period.
In late 1991, Ms. Hurt3 (through her mother) complained to the Alabama
Department of Human Resources (“DHR”) that Mr. Acker had molested her. In a
1

The following summation contains only those facts relevant to the certification issue at
hand and upon which the parties have been able to agree at this point in the litigation. They do
not represent formal findings and are not binding on the parties.
2

It is unclear from the record what the nature of Mr. Acker’s employment relationship
was with the Board after 2009. There is some indication he continued to work as a school bus
driver. However, he unquestionably retired from teaching in 2009.
3

At that time, Ms. Hurt was known as Kristen Hurt Lopez. See, e.g, Doc. 10 at 8. Because
she chooses to be identified as Kristen Hurt in the present action, the court will refer to her
throughout this opinion as Ms. Hurt.
3

formal report it issued on the subject, the DHR found that:
[t]he circumstances in which the touching occurred and the nature of the
touching indicated that the act was perpetrated for the sole purpose of
generating sexual pleasure for Danny Acker; the evidence shows the touching
was not accidental, nor did Danny Acker have a legitimate medical or hygenic
purpose for touching [Ms. Hurt’s] breast. The touching of [Ms. Hurt’s] breast
constitutes an act of child abuse as defined by the Code of Alabama and the
[DHR’s] administrative Code. The findings of the hearing should be entered
in the central register in order to protect children whose health and welfare may
be adversely affected by Acker’s regular and substantial contact with children.
At some point afterward, Dr. Norma Rogers, Shelby County Superintendent of
Education, learned of this report. On October 14, 1992, the DHR released a letter
indicating that – under its Administrative Rule 660-5-34(4)(j)(7) – the following
would occur:
the content of the investigation of reports of suspected child abuse/neglect
where school personnel are the alleged perpetrators must be furnished in
writing to the School Board on all indicated reports after the department
investigative [sic] is waived or held . . . This disclosure of information is being
made to the Shelby County School Board pursuant to Code of Alabama 1975,
26-14-8, to prevent or discover child abuse or neglect.
The letter also provided, “A founded determination has been entered into the State
Central Registry.” The Board noticed an intent to consider cancellation of Mr.
Acker’s employment at around that time.
On February 8, 1993, the Board conducted a hearing where they heard evidence
regarding Mr. Acker’s alleged sexual misconduct against Ms. Hurt. At that time, the

4

Board including Dr. Doebler (as President), Susan Bagley (as Vice President), Cindy
Forrester, Steven Martin, and Donna Morris. After several hours – in the early
morning of February 9, 1993 – the Board voted not to terminate Mr. Acker. He
consequently returned to work as a teacher within the Shelby County school system.
On January 4, 2012, Mr. Acker admitted to police investigators that he
molested over 20 different girls for his sexual gratification during his employment
within the Shelby County school system. This included the admission that in 1991 he
subjected Ms. Hurt, who was an eleven-year old fourth-grade student in his
Creekwood Elementary School class, to sexual contact for such personal gratification.
He also admitted to a similar incident in 2004-05 with a fourth grade student at
Thompson Intermediate School. Other than Ms. Hurt, he could not remember the
exact names of the other children he molested. On May 3, 2012, he plead guilty to
eight counts of criminal sexual abuse of a child less than twelve, which constitute
Class B and C felonies.
II.

Procedural Background
The plaintiffs filed a Class Action Complaint on February 1, 2013. Doc. 1. In

this Complaint, they accused Mr. Acker of sexually molesting and/or sexually
harassing them in various ways and in various circumstances over the many years he
was employed as a teacher and school bus driver within the Shelby County public
5

school system. Id. at 6-11, 17-21.4 They further accused the Board, Mr. Doebler, and
Mr. Martin of failing to take appropriate corrective measures to protect them and
other students after learning of Ms. Hurt’s accusation that Mr. Acker molested her in
1991. Id. at 13-17. They specifically faulted the Board for reinstating his employment
after the DHR found a preponderance of evidence showing that Mr. Acker sexually
abused Ms. Hurt and after the DHR added him to a central registry of sex offenders.
Id. The Complaint enumerated ten counts against the defendants. Id. at 22-38. These
counts included allegations of sex discrimination in violation of Title IX of the 1972
Education Amendments, 20 U.S.C. §§ 1681-1688; various violations of the plaintiffs’
rights under 42 U.S.C. § 1983; invasion of privacy; assault and battery; outrage;
negligent and/or wanton training, supervision, and retention; false imprisonment; and
loss of consortium. Id.
On February 8, 2013, the plaintiffs filed their First Amended Class Action
Complaint (“the Amended Complaint”). Doc. 10. The Amended Complaint did not
alter the counts alleged by the plaintiffs. Instead, its only major substantive revisions
appeared to be the following:

4

The paragraph numbering within the plaintiffs’ Class Action Complaint (and, later, the
Amended Class Action Complaint) was frequently inconsistent. See, e.g., Doc. 1 at 2; Doc. 10 at
2. All citations to the record in this opinion therefore employ the numbering system applied by
the Case Management/Electronic Case Files (CM/ECF) system.
6

•

the removal of “Jane Doe #5" as a plaintiff, compare doc. 1 at 5 with
doc. 10 at 4-5;

•

the addition of a section outlining the plaintiffs’ “Class Action
Allegations,” doc. 10 at 6-8;

•

the clarification of certain dates and details surrounding Mr. Acker’s
alleged 1993 reinstatement, id. at 15-18;

•

a description of the alleged harm Ms. Hurt suffered as a result of Mr.
Acker’s abuse and the resulting public fallout from her accusation, id.
at 18-20; and

•

the alteration of the plaintiffs’ Prayer for Relief to delineate the nature
of their compensatory damages request, id. at 40-41.

Mr. Acker answered on March 7, 2013 (doc. 16), and the other defendants separately
answered on March 27, 2013 (doc. 17). Each Answer raised several affirmative
defenses. The plaintiffs filed the present Motion for Class Certification on October
15, 2013. Doc. 27. The defendants responded in opposition on December 4, 2013.
Doc. 34. The plaintiffs replied on December 20, 2013. Doc. 40.
STANDARDS OF REVIEW
Federal Rule of Civil Procedure 23 governs Motions for Class Certification.
Fed. R. Civ. P. 23. The plaintiffs specifically invoke Rule 23(b)(3) to justify their
present Motion. Moreover, they are exclusively seeking certification as to their Title
IX sex discrimination claim. By way of framing its analysis below, the court will
therefore outline the legal standards dictated by these various provisions.
7

I.

Rule 23
The class action is “an exception to the usual rule that litigation is conducted

by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442
U.S. 682, 700–701 (1979). “In order to justify a departure from that rule, a class
representative must be part of the class and possess the same interest and suffer the
same injury as the class members.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___,
___, 131 S. Ct. 2541, 2550-52 (2011) (citing E. Tex. Motor Freight Sys., Inc. v.
Rodriguez, 431 U.S. 395, 403 (1977)) (internal quotation marks omitted). A plaintiff
seeking class certification therefore “bears the burden of satisfying all implicit and
explicit requirements of Federal Rule of Civil Procedure 23.” Bussey v. Macon
County Greyhound Park, Inc., 562 F. App’x 782, 787 (11th Cir. 2014) (unpublished)
(citing Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009); Valley
Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1187–88 (11th Cir. 2003)). Put
more specifically, “[f]or a district court to certify a class action, the named plaintiffs
must have standing and the putative class must meet each of the requirements
specified in Federal Rule of Civil Procedure 23(a), as well as at least one of the
requirements set forth in Rule 23(b).” Klay v. Humana, Inc., 382 F.3d 1241, 1250-51
(11th Cir. 2004) (citing City of Hialeah v. Rojas, 311 F.3d 1096, 1101 (11th Cir.
2002); Turner v. Beneficial Corp., 242 F.3d 1023, 1025 (11th Cir. 2001)) (footnotes
8

omitted), abrogated in part on other grounds by Bridge v. Phoenix Bond & Indem.
Co., 553 U.S. 639 (2008).
A.

Threshold Requirements

The first threshold requirement is that any and all named plaintiffs have
standing. See Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987) (“[A]nalysis
of class certification must begin with the issue of standing.” ); see also Wooden v. Bd.
of Regents of the Univ. Sys. of Ga., 247 F.3d 1262, 1283 n.20 (11th Cir. 2001) (citing
Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331, 1339 n.6 (11th Cir. 2000))
(“[T]he fact that this suit was brought as a class action does not alter [the proposed
class representative's] obligation to show that he individually satisfies the
constitutional requirements of standing.”).
Standing is, in fact, particularly important with class actions. Before the court
even assesses whether the named plaintiffs’ claims and the class claims will share
common questions, it first must decide whether the plaintiffs have a cognizable claim
at all. Because an issue of Article III standing “directly implicates federal subject
matter jurisdiction,” the court must address it first. Focus on the Family v. Pinellas
Suncoast Transit Auth., 344 F.3d 1263, 1272 (11th Cir. 2003) (citation omitted). In
this action, the defendants do not challenge the named plaintiffs’ constitutional
standing to pursue the present action. Moreover, the court, in independently
9

reviewing the record, has not identified any standing problems or other “case or
controversy” concerns (e.g., ripeness or mootness) that would preclude the named
plaintiffs from serving as class representatives. Therefore, no Article III obstacles
exist to prevent this case from proceeding as a class action.
Another threshold requirement Rule 23 implies is that the plaintiffs’ proposed
class be “adequately defined and clearly ascertainable.” Bussey, 562 F. App’x at 787
(unpublished) (quoting Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir.
2012)) (footnote omitted). “An identifiable class exists if its members can be
ascertained by reference to objective criteria.” Id. (quoting Fogarazzo v. Lehman
Bros., Inc., 263 F.R.D. 90, 97 (S.D.N.Y. 2009)). “The analysis of the objective criteria
also should be administratively feasible.” Id. “Administrative feasibility means that
identifying class members is a manageable process that does not require much, if any,
individual inquiry.” Id. (quoting Newberg on Class Actions § 3.3 p. 164 (5th ed.
2012)) (internal quotation marks omitted). Where a plaintiff satisfies this threshold
issue, the district court then “conducts a rigorous analysis of the [R]ule 23
prerequisites.” Vega, 564 F.3d at 1266 (citation and internal quotation marks
omitted).
B.

Rule 23(a) Prerequisites

The Rule 23 prerequisites constitute: numerosity, commonality, typicality, and
10

adequacy. That is, under Rule 23(a), a court may only certify a proposed class if:
•

the class is so numerous that joinder of all members is impracticable
(“numerosity”);

•

there are questions of law or fact common to the class (“commonality”);

•

the claims or defenses of the representative parties are typical of the
claims or defenses of the class (“typicality”); and

•

the representative parties will fairly and adequately protect the interests
of the class (“adequacy”).

Fed. R. Civ. P. 23(a)(1)-(4). “Rule 23(a) ensures that the named plaintiffs are
appropriate representatives of the class whose claims they wish to litigate.” Wal-Mart,
131 S. Ct. at 2550. These prerequisites “effectively limit the class claims to those
fairly encompassed by the named plaintiff’s claims.” Gen. Tel. Co. of Sw. v. Falcon,
457 U.S. 147, 156 (1982) (quoting Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318, 330
(1980)) (internal quotation marks omitted).
Certain analytical principles apply when evaluating certification under Rule
23(a). It “may be necessary for the court to probe behind the pleadings before coming
to rest on the certification question.” Comcast Corp. v. Behrend, ___ U.S. ___, 133
S. Ct. 1426, 1430 (2013) (quoting Wal-Mart, 131 S. Ct. at 2551). Indeed,
“certification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that
the prerequisites of Rule 23(a) have been satisfied.’” Id. (quoting Wal-Mart, 131 S.

11

Ct. at 2551). This analysis will frequently “overlap with the merits of the plaintiff's
underlying claim.” Wal-Mart, 131 S. Ct. at 2551. That is so because the “class
determination generally involves considerations that are enmeshed in the factual and
legal issues comprising the plaintiff's cause of action.” Id. at 2551-52 (quoting
Falcon, 457 U.S. at 160) (footnote omitted).
C.

Rule 23(b)(3)

Having shown that each of the Rule 23(a) prerequisites apply, the plaintiff must
also satisfy at least one of the provisions of Rule 23(b). Here, the named plaintiffs
invoke Rule 23(b)(3). Doc. 27 at 2. They can only satisfy this provision if the court
finds that:
•

the questions of law or fact common to class members predominate over
any questions affecting only individual members; and

•

a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.

Fed. R. Civ. P. 23(b)(3). The following considerations are “pertinent” in rendering
this analysis:
•

the class members' interests in individually controlling the prosecution
or defense of separate actions;

•

the extent and nature of any litigation concerning the controversy
already begun by or against class members;

•

the desirability or undesirability of concentrating the litigation of the
12

claims in the particular forum; and
•

the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3)(A)-(D).
The same analytical principles identified above regarding Rule 23(a) also
govern certification under Rule 23(b). Comcast, 133 S. Ct. at 1432. “If anything, Rule
23(b)(3)'s predominance criterion is even more demanding than Rule 23(a).” Id.
(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623–624 (1997)). Rule
23(b)(3) is an “adventuresome innovation,” and it is “framed for situations in which
class-action treatment is not as clearly called for.” Wal-Mart, 131 S.Ct. at 2558
(quoting Amchem, 521 U.S. at 614-615) (internal quotation marks omitted). “That
explains Congress's addition of procedural safeguards for (b)(3) class members
beyond those provided for (b)(1) or (b)(2) class members (e.g., an opportunity to opt
out), and the court's duty to take a ‘close look’ at whether common questions
predominate over individual ones.” Comcast, 133 S. Ct. at 1432 (quoting Amchem,
521 U.S. at 615).
II.

Title IX

Title IX provides that “[n]o person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial
13

assistance.” 20 U.S.C. § 1681(a). “The Supreme Court has recognized an implied
right of action for money damages in Title IX cases of intentional sexual
discrimination and has held that a teacher's sexual harassment of a student constitutes
actionable discrimination under Title IX.” Doe v. Sch. Bd. of Broward County, Fla.,
604 F.3d 1248, 1254 (11th Cir. 2010) (citing Franklin v. Gwinnett County Pub. Schs.,
503 U.S. 60, 75–76 (1992)). However, “not all sexual harassment by teachers is
sufficient to impose liability on a school district.” Id. (citing Gebser v. Lago Vista
Indep. Sch. Dist., 524 U.S. 274, 290 (1998)). In order to establish such liability, the
plaintiff must satsify three different inquiries. J.F.K. v. Troup County Sch. Dist., 678
F.3d 1254, 1255 (11th Cir. 2012) (citing Doe, 604 F.3d at 1254). The plaintiff must
be able to:
•

identify a person with “authority to take corrective measures in response
to actual notice of sexual harassment” (the “appropriate person” prong);

•

demonstrate that the notice was “sufficient to alert the school official of
the possibility of the Title IX plaintiff's harassment” (the “actual notice”
prong); and

•

show that the authority figure acted with deliberate indifference to the
notice of harassment (the “deliberate indifference” prong).

Id. at 1255-56 (citing Doe, 604 F.3d at 1254).
The premise of this type of liability is “an official decision by the [Title IX]
recipient not to remedy the violation.” Gebser, 524 U.S. at 290. It “finds a rough
14

parallel in the standard of deliberate indifference.” Id. “Deliberate indifference is an
exacting standard; school administrators will only be deemed deliberately indifferent
if their ‘response to the harassment or lack thereof is clearly unreasonable in light of
the known circumstances.’” Doe, 604 F.3d at 1259 (quoting Davis v. Monroe County
Bd. of Ed., 526 U.S. 629, 648 (1999)). In sum, “[t]he Title IX inquiry is contextual:
it does not require school districts to simply do something in response to sexual
harassment; rather, they must respond in a manner that is not ‘clearly unreasonable
in light of the known circumstances.’” Id. at 1263 (quoting Davis, 526 U.S. at 648)
(emphasis in original).5
DISCUSSION
I.

The Proposed Class Is Unascertainable Because Membership Hinges On
Mr. Acker’s Ultimate Liability.
A.

The plaintiffs describe an impermissible “fail-safe” class.

The defendants first argue that the plaintiffs’ putative class definition is not
“adequately defined and clearly ascertainable” because it “includes elements subject
to ultimate proof.” Doc. 34 at 14-15. They specifically cite language in the definition
encompassing students who were “harassed, abused, or molested.” Id. at 14 (citing
5

The Supreme Court in Davis recognized an actionable Title IX claim against school
districts for student-on-student sexual harassment that occurs on school premises. 526 U.S. at
643-49. Importantly, the standard for evaluating liability under such claims is more rigorous than
that for teacher-on-student sexual harassment. Sauls v. Pierce County Sch. Dist., 399 F.3d 1279,
1284 (11th Cir. 2005) (citing Davis, 526 U.S. at 650-53).
15

Doc. 27-1 at 2). They observe that this court could only identify which individuals
meet that definition “after each individual plaintiff proved her injury and liability is
determined.” Id. at 15. According to the defendants, there is no way to identify such
persons at the present point, and such a class definition is thus improperly “fail-safe”
in that it is “in essence framed as a legal conclusion.” Id.
The court finds this argument somewhat persuasive. On the one hand, the
question of whom Mr. Acker physically molested is a factual one that is realistically
ascertainable. This observation is particularly true in the present case, as Mr. Acker
has admitted to physically molesting over twenty female students over the years.
However, the identities of the students Mr. Acker “sexually harassed” is not nearly
so clear at this point. This applies a fortiori to the question of which students he
“exposed to a sexually hostile educational environment” by virtue of his conduct.
These are qualitatively different inquires than that of physical molestation. They
fundamentally require legal determinations that this court can only render after a trial
on the merits. For this reason, the court finds that the plaintiffs describe a “fail-safe”
class.
A fail-safe class is “a class whose membership can only be ascertained by a
determination of the merits of the case because the class is defined in terms of the
ultimate question of liability.”Rodriguez v. Countrywide Home Loans, Inc., 695 F.3d
16

360, 369-70 (5th Cir. 2012) (citation omitted); accord Messner v. Northshore Univ.
HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012) (defining a fail-safe class as “one
that is defined so that whether a person qualifies as a member depends on whether the
person has a valid claim”). The problems with such classes are both logical and
practical. On the logical front, the class definition is essentially circular. It defines its
members on the presumption that such members have viable claims against the
defendant. So, the class definition assumes what it ostensibly seeks to prove. This is
itself problematic. See, e.g., Mazzei v. Money Store, 288 F.R.D. 45, 55 (S.D.N.Y.
2012) (holding that proposed class definition limited to those charged fees that “were
not permitted” wrongly “defines the class . . . by the very liability the plaintiff seeks
to establish”).
The problems compound, however, when one considers the practical
complications such definitions introduce. First, they permit plaintiffs to circumvent
res judicata and basically rig the certification process so that they cannot lose. That
is, “[e]ither the class members win or, by virtue of losing, they are not in the class
and, therefore, not bound by the judgment.” Randleman v. Fid. Nat'l Title Ins. Co.,
646 F.3d 347, 352 (6th Cir. 2011) (footnote and citations omitted). “A fail-safe class
thus creates a ‘heads I win, tails you lose’ situation, where class members either
receive a favorable judgment or are defined out of the class.” Erin L. Geller, The Fail17

Safe Class As an Independent Bar to Class Certification, 81 Fordham L. Rev. 2769,
2771 (2013). This scenario is patently unfair to the defendant. Finally – and most
obviously – a fail safe class “is unmanageable because the members of the class could
only be known after a determination of liability.” Eager v. Credit Bureau Collection
Servs., Inc., No. 1:13-CV-30, 2014 WL 3534949, at *4 (W.D. Mich. July 16, 2014)
(quoting Mazzei, 288 F.R.D. at 55). In short, fail safe classes preclude the court from
ascertaining the contours of the class, which is the sine qua non of Rule 23
certification. See Moore v. Walter Coke, Inc., 294 F.R.D. 620, 624 (N.D. Ala. 2013)
(quoting Grimes v. Rave Motion Pictures Birmingham, L.L.C., 264 F.R.D. 659, 663
(N.D. Ala. 2010)) (“[T]he first essential ingredient to class treatment is the
ascertainability of the class.”).
A fail-safe class definition does not necessarily doom certification. Indeed,
some courts have allowed plaintiffs to amend such flawed definitions in order to cure
the identified deficiencies. See, e.g., Messner, 669 F.3d at 825 (“[T]he fail-safe
problem is more of an art than a science . . . and often should be solved by refining
the class definition rather than flatly denying class certification on that basis.”)
(citations omitted); see also St. Louis Heart Ctr., Inc. v. Forest Pharm., Inc., No.
4:12-CV-02224, 2013 WL 1076540, at *6 n.7 (E.D. Mo. Mar. 13, 2013) (collecting
cases where courts have either revised class definitions to cure fail-safe deficiencies
18

or permitted plaintiffs to do so); but see Randleman, 646 F.3d at 352 (relying on failsafe definition as one of two reasons to bar class certification). The defendants argue
that the court should not afford the plaintiffs such an opportunity here. Doc. 34 at 1617.
B.

The plaintiffs’ fail-safe class definition implicates their ability to
satisfy numerosity.

The court need not evaluate these arguments. It does not believe the plaintiffs
– even if afforded the opportunity – could revise their class definition adequately to
sustain certification. That is because their fail-safe class definition is arguably
tethered to their ability to satisfy Rule 23's numerosity prerequisite. As noted,
although he only plead guilty to eight counts of child sexual abuse, Mr. Acker
admitted to molesting “over twenty" female students within the Shelby County public
school system over the years. The Eleventh Circuit has indicated in dicta that “while
there is no fixed numerosity rule, generally less than twenty-one is inadequate, more
than forty adequate, with numbers between varying according to other factors.” Cox
v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (internal quotation
marks omitted); see also Dujanovic v. MortgageAmerica, Inc., 185 F.R.D. 660, 666
(N.D. Ala. 1999) (“As a general rule, classes of more than 40 members are deemed
to satisfy the numerosity requirement.”) (citing Cox, 784 F.2d at 1553). “Although

19

mere allegations of numerosity are insufficient to meet this prerequisite, a plaintiff
need not show the precise number of members in the class.” Evans v. U.S. Pipe &
Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983) (citations omitted). “Nevertheless,
a plaintiff still bears the burden of making some showing, affording the district court
the means to make a supported factual finding, that the class actually certified meets
the numerosity requirement.” Vega, 564 F.3d at 1267 (emphasis in original).
The plaintiffs maintain that their proposed class easily satisfies this element.
They argue in the following manner:
Acker himself cannot remember the names of all the girls he molested, but he
admitted that it was more than twenty girls spanning his entire tenure as a
teacher and bus driver. Daniel Acker taught from 1984 through his retirement
in May 2009. The proposed class includes all female students in Acker’s class
and bus route starting from 1991 through 2009. Only looking at a small sample
of Acker’s class size shows that there are potentially hundreds of plaintiffs, and
likely more than forty (40). In 2000 Acker was assigned twenty-six (26)
children in his class, 13 female. In 2002 Acker was assigned twenty-nine (29)
children in his class, 10 female. In 2003 Acker was assigned twenty-six (26)
children in his class, 11 females. (Ex. 7) Assuming that during the span of 18
years Acker only had 11 girls in each class each year, then on this formulation
of the proposed class it is reasonable to assume that these prospective class
members number 198 females. This calculation does not even take into account
those girls who were on Acker’s bus route. Accordingly, the likely class size
is too large to make joinder practicable.
Doc. 27-1 at 19 (emphasis added). The extremity of this class description is telling.
Indeed, as the defendants observe, its breadth likely outstrips the confines of the
plaintiffs’ proffered definition. Doc. 34 at 15-16. This fact strongly implies that the
20

desired expansion is essential to the plaintiffs’ requested certification. That is, if the
proposed class were limited to only those students Mr. Acker physically molested –
the only group that can be presently ascertained – then certification would almost
certainly fail because the group would be insufficiently numerous. Therefore, the
plaintiffs likely appended to its class those girls whom Mr. Acker “sexually harassed”
and “exposed to a sexually hostile educational environment” to compensate for this
deficiency. The court, of course, does not have sufficient evidence to independently
conclude that the plaintiffs fail the numerosity requirement. However – considered
with the plaintiffs’ unascertainable fail-safe class definition – the court has sufficient
grounds to deny the plaintiffs class certification.6
II.

The Proposed Class Lacks Commonality and Typicality Because Its
Members Assert Distinct Contentions Against The Defendants That Will
Require Different Analysis and Possibly Produce Different Answers.
A.

There is not sufficient commonality because the putative class reflects
discrete injury allegations against the defendants.

6

Because the plaintiffs’ class fails Rule 23's threshold ascertainability requirement, the
court could stop here. See, e.g., Adair v. Johnston, 221 F.R.D. 573, 578 (M.D. Ala. 2004)
(“Because Adair's putative class is not adequately definite and ascertainable . . . [t]he court need
not reach whether Adair's putative class would satisfy the other requirements of Fed. R. Civ. P.
23.”). But, mindful of its duty to perform a “rigorous analysis” of their class certification motion,
Wal–Mart, 131 S.Ct. at 2551, the court will proceed to show why the plaintiffs’ class also fails
Rule 23(a)’s commonality and typicality prerequisites. See Wright v. Farouk Sys., Inc., 701 F.3d
907, 911 (11th Cir. 2012) (recognizing that alternative rulings “enable [the Eleventh Circuit] to
decide the case in one appeal, if there is an appeal, and will avoid the risk that another remand
might be required”).
21

Commonality requires that “there are questions of law or fact common to the
class.” Fed. R. Civ. P. 23(a)(2). The Supreme Court in Wal-Mart has recently
explained this requirement in the following manner:
That language [of Rule 23(a)(2)] is easy to misread, since any competently
crafted class complaint literally raises common questions. For example: Do all
of us plaintiffs indeed work for Wal–Mart? Do our managers have discretion
over pay? Is that an unlawful employment practice? What remedies should we
get? Reciting these questions is not sufficient to obtain class certification.
Commonality requires the plaintiff to demonstrate that the class members have
suffered the same injury. This does not mean merely that they have all suffered
a violation of the same provision of law. Title VII, for example, can be violated
in many ways—by intentional discrimination, or by hiring and promotion
criteria that result in disparate impact, and by the use of these practices on the
part of many different superiors in a single company. Quite obviously, the mere
claim by employees of the same company that they have suffered a Title VII
injury, or even a disparate-impact Title VII injury, gives no cause to believe
that all their claims can productively be litigated at once. Their claims must
depend upon a common contention – for example, the assertion of
discriminatory bias on the part of the same supervisor. That common
contention, moreover, must be of such a nature that it is capable of classwide
resolution – which means that determination of its truth or falsity will resolve
an issue that is central to the validity of each one of the claims in one stroke.
Wal-Mart, 131 S. Ct. at 2551 (internal quotations and alterations omitted) (emphasis
added). In short, “[w]hat matters to class certification is not the raising of common
questions – even in droves – but, rather the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of the litigation.” Id. (quotation
and internal alterations omitted) (emphasis in original). “Dissimilarities within the
proposed class are what have the potential to impede the generation of common
22

answers.” Id. (quotation omitted). However, when the class does pose common legal
and factual questions that meet these qualifications, “even a single common question
will do.” Id. at 2556 (quotation omitted).
There are, to be sure, certain similarities within the plaintiffs’ proposed class.
They are all females, they were all (at different times) fourth graders at schools within
Shelby County, and their gravamen in every case concerns the conduct of Mr. Acker
and the Board (as well as its individual members). The class plaintiffs also all invoke
Title IX and claim relief under its provisions. These commonalities, however, are
insufficient – as is obvious from the Supreme Court’s explanation above. It is not
enough that the plaintiffs are all of the same sex, lived and went to school within the
same locality, and invoke the same law against the same defendants. What is
dispositive is whether they “suffered the same injury,” such that they are essentially
voicing a common contention (or contentions) against the defendants and can
consequently secure class-wide relief. Wal-Mart, 131 S. Ct. at 2551. Such is not the
case in the present action. Although they all fault the Board’s “deliberate
indifference” under Title IX, the putative plaintiffs here allege several distinct
injuries.
This becomes clear when one scrutinizes the proposed class definition:
Any current or former female student during the time period that Dan Acker
23

worked for Shelby County School Board who was either injured, sexually
harassed, abused or molested by Dan Acker or who witnessed such conduct or
who was exposed to a sexually hostile educational environment through
Acker’s conduct.
Doc. 27 at 2. Quite apparently, there are at least two – and likely three – sub-classes
of female students within this class. The first is those who were “either injured,
sexually harassed, abused or molested by Dan Acker.” The second is those who
“witnessed such conduct” and therefore may have been put in imminent apprehension
of such abuse. The final sub-class is those who were “exposed to a sexually hostile
educational environment through Acker’s conduct.” In the latter case, the plaintiffs
implicitly concede that this group includes those who were not even subjectively
conscious of Mr. Acker’s abuse. Still, the court admits – without deciding – that each
set of individuals above may have viable Title IX claims against the defendants.
However, the various groups describe fundamentally different injuries. At the very
least, those who were conscious of Mr. Acker’s abuse are qualitatively (and
quantitatively) distinct from those who were not.
The plaintiffs’ court filings unintentionally make this point clear. They argue
that there are in fact “several” common contentions capable of class-wide resolution.
Doc. 27-1 at 22. The common class questions – which, presumably, the plaintiffs
contend generate common contentions – are allegedly the following:

24

•

whether the defendants received actual notice of Mr. Acker’s sexually
abusive conduct in 1992;

•

whether the Board, Dr. Doebler, and Mr. Martin are “appropriate school
officials” under Title IX;

•

whether, in returning Mr. Acker to the classroom, the other defendants
were deliberately indifferent to an unreasonable risk of harm;

•

following Mr. Acker’s return to the classroom in 1992, whether Mr.
Acker’s continued and repeated sexual abuse of female students created
a sexually hostile educational environment for female students in his
fourth grade classes and on his bus route in violation of Title IX; and

•

whether, given actual notice and deliberate indifference despite this
notice, the plaintiffs may recover damages from Mr. Acker’s creation of
a sexually hostile educational environment following his return to the
classroom from 1992 until his retirement.

Id. at 22-23. This recitation avoids addressing the primary inquiry under the
commonality prong. Indeed, it resembles the “droves” of common questions that the
Supreme Court derided in Wal-Mart as arising in any case and which were irrelevant
to the commonality determination. Instead, what is paramount is whether the class
plaintiffs suffered the same injuries and whether those injuries permit common
answers.
The plaintiffs more directly address these concerns in their Reply, but their
arguments undermine their attempt to show commonality. They argue that “each
student suffered the same injury to her educational opportunities.” Doc. 40 at 9 n.4

25

(internal quotation marks and citation omitted). Relying on Reeves v. C.H. Robinson,
594 F.3d 798 (11th Cir. 2010) and Jennings v. University of North Carolina, 482 F.3d
686 (4th Cir. 2007), they maintain that “every female student of Acker has a cause of
action based on the common circumstance of having been subjected to Acker’s sexual
abuse of her similarly-situated peers.” Doc. 40 at 10-11 (footnote omitted) (emphasis
added). In other words, “Acker’s conduct gives rise to liability for any student within
his ‘target’ area – that is the protected group of girls who were students in Acker’s
fourth grade classrooms, and the class therefore includes every female student of
Acker.” Id. at 5-6 (quoting Reeves, 594 F.3d at 811). The plaintiffs further elaborate:
Under the “target area” theory reasoning of Jennings and C.H. Robinson, each
female child in Acker’s “target area” of female students in his classroom was
subject to a hostile environment based on sex and, as a result, was denied equal
educational opportunities and has a claim under Title IX. This should be clear
when one considers the effect of Acker’s abuse of girls in the classroom. For
those who understood the sexual motivations behind Acker’s conduct, the fear
was that she or her friends would become Acker’s next target. For those girls
who didn’t understand the sexual nature of Acker’s conduct, Acker’s abuse
manifested itself as favoritism and heightened attention toward his “targets.”
This apparent favoritism resulted in lower self-esteem for those girls who did
not understand that being Acker’s “favorite” was not a desirable thing to be.
The injuries suffered by the girls who were targeted, those who feared being
targeted, and those who suffered lowered self-esteem as a result of perceived
favoritism are all injuries cognizable under Title IX as similarly depriving
female students of access to educational opportunities.
Id. at 12-13 (footnote omitted). The plaintiffs additionally argue that “the issue of [the
Board’s] deliberate indifference is a common contention capable of classwide
26

resolution” and that “class treatment will resolve the common questions of notice and
deliberate indifference on a classwide basis ‘in one stroke’ and avoid conflicting
determinations that might otherwise result if the class members were forced to bring
multiple suits” Id. at 14-15.
The court does not find this argument persuasive, for several reasons.
Certainly, all putative class members would be attacking the Board’s deliberate
indifference under Title IX. On a very general level, they all allege that Mr. Acker
and the Board denied them educational opportunities on the basis of their sex. But,
Wal-Mart makes clear that the plaintiffs may not abstract the commonality inquiry to
this level. The court must instead discern whether they were all denied educational
opportunities in similar ways. Moreover, Reeves concerned a Title VII (not Title IX)
hostile work environment claim by an adult female worker against her former
employer. 594 F.3d at 803-806. It was not a class action. The Eleventh Circuit there
held that gender-specific verbal abuse did not have to be directed specifically at a
plaintiff in order for her to have a viable Title VII disparate treatment claim. Id. at
811 (citing Yuknis v. First Student, Inc., 481 F.3d 552, 553–54 (7th Cir. 2007)).
Rather, if such abuse were directed at her “target area” – i.e., her protected group –
that would be enough. Id. The plaintiffs’ attempt here to shoehorn this legal theory
into the Title IX teacher-on-student harassment class action context is, at the very
27

least, not self-evident.
Most importantly, though, the court need not decide now whether the plaintiffs’
“target area” theory is valid under Title IX. What instead sways the court’s judgment
is that the plaintiffs here assert disparate injuries that will require disparate analysis
and possibly merit disparate relief. Proving that those who were molested were denied
educational opportunities would be different – perhaps categorically different — from
proving the same with those who were unwittingly exposed to such an environment.
Because of this fact, it is conceivable that the former group could secure relief
whereas the latter group (or certain members of the latter group) could not. This
conclusion bars the court from finding that the putative class is asserting common
contentions capable of achieving “class-wide resolution . . . in one stroke.” Wal-Mart,
131 S. Ct. at 2551. The court, of course, does not want to minimize the various
injuries alleged. Those who experienced molestation and abuse suffered greatly, as
did those who witnessed such molestation and those who were exposed to such a
predatory environment. Their injuries are simply not “common” under Rule 23.
B.

The named plaintiffs are atypical of their proposed class because the
factual claims of the named group differ materially from the class.

For similar reasons, the putative class lacks the required typicality. The
Supreme Court has stated the following on this element:

28

The commonality and typicality requirements of Rule 23(a) tend to merge.
Both serve as guideposts for determining whether under the particular
circumstances maintenance of a class action is economical and whether the
named plaintiff's claim and the class claims are so interrelated that the interests
of the class members will be fairly and adequately protected in their absence.
Falcon, 457 U.S. at 157 n.13. In other words, “[a] class representative must possess
the same interest and suffer the same injury as the class members in order to be
typical under Rule 23(a)(3).” Cooper v. So. Co., 390 F.3d 695, 713 (11th Cir. 2004)
(quoting Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001)), overruled on
other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457–58 (2006). “Although
the commonality and typicality requirements may overlap, traditionally, commonality
refers to the group characteristics of the class as a whole and typicality refers to the
individual characteristics of the named plaintiff or plaintiffs in relation to the class.”
Bryant v. Southland Tube, 294 F.R.D. 633, 648 (N.D. Ala. 2013) (citing Cooper, 390
F.3d at 714) (internal quotation marks and alterations omitted). “The claim of a class
representative is typical if ‘the claims or defenses of the class and the class
representative arise from the same event or pattern or practice and are based on the
same legal theory.’” Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1357 (11th Cir.
2009) (quoting Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th
Cir. 1984)). However, “typicality may be defeated if factual differences dominate.”
Wright v. Circuit City Stores, Inc., 201 F.R.D. 526, 544 (N.D. Ala. 2001) (quoting
29

Hively v. Northlake Foods, Inc., 191 F.R.D. 661, 668 (M.D. Fla. 2000)).
Material factual differences prevail between the named plaintiffs and the
putative class. Each of the named plaintiffs claims to have suffered direct physical
molestation at Mr. Acker’s hands. See Doc. 10 at 8-12, 20-24. Such is not necessarily
the case with the class they seek to represent. The class would include a potentially
large group of female students whose participation in the case depends simply on
their membership within one of Mr. Acker’s fourth-grade classes over the roughly
twenty-five years he taught. See Doc. 40 at 6 (“The class is ascertainable by reference
to class rosters containing sufficient information for the parties to locate class
members.”). As noted, this group would include female students who had no
awareness of Mr. Acker’s abuse whatsoever. They may have indeed have a Title IX
claim against the Board for placing them in such a situation, but their injuries are
distinct from the named plaintiffs.
Further, the defendants assert a statute of limitations defense that will only
apply selectively to the class. Doc. 17 at 4. This is a relevant concern regarding
certification. See Vega, 564 F.3d at 1266 (quoting Castano v. Am. Tobacco Co., 84
F.3d 734, 744 (5th Cir. 1996)) (“Going beyond the pleadings is necessary, as a court
must understand the claims, defenses, relevant facts, and applicable substantive law
in order to make a meaningful determination of the certification issues.”) (emphasis
30

added). Although the contours of the defendants’ statute of limitations defense are not
precisely clear, they will certainly assert it against Ms. Hurt. See Doc. 34 at 25-26.
This fact further drives a wedge between the named plaintiffs and the putative class.
Considered with the enumerated differences above, the court finds that it precludes
typicality under Rule 23. See Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990) (“[C]lass certification is
inappropriate where a putative class representative is subject to unique defenses
which threaten to become the focus of the litigation.”) (citations omitted).7
CONCLUSION
For the foregoing reasons, the court hereby DENIES the plaintiffs’ Motion for
Class Certification under Rule 23. This is a grave matter, and the plaintiffs describe
serious accusations against the defendants. Nothing in the court’s analysis is intended
to diminish these facts or to question the substantive merits of their claims. The court
simply concludes that the plaintiffs have failed to satisfy the procedural requirements
of Rule 23. The plaintiffs are still fully entitled to seek recourse outside of the class
action format.

7

The defendants’ unique defense against Ms. Hurt would also undercut her ability to
adequately represent the class under Rule 23(a)(4). See, e.g, 7A Wright, Miller & Kane, Federal
Practice and Procedure § 1765 (3d ed. 2005) (citing cases in which a unique defense defeated
adequacy of representation).
31

DONE and ORDERED this the 21st day of August, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

32