Brooks et al v. Darling International, Inc.

Filing 74

ORDER Denying Plaintiffs' 47 Motion for Class Certification, Denying Defendant's 51 Motion to Strike Resident Data Sheets, and Denying Defendant's 52 Motion to Exclude Expert Reports, signed by District Judge Dale A. Drozd on 3/30/2017. (Thorp, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LINDA BROOKS, ET AL., 12 Plaintiffs, 13 14 v. DARLING INTERNATIONAL, INC., 15 Defendant. 16 No. 1:14-cv-01128-DAD-EPG ORDER DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION, DENYING DEFENDANT’S MOTION TO STRIKE RESIDENT DATA SHEETS, AND DENYING DEFENDANT’S MOTION TO EXCLUDE EXPERT REPORTS (Doc. Nos. 47, 51, 52) 17 18 This matter is before the court on plaintiffs’ motion for class certification as well as 19 20 defendant’s motion to strike and exclude evidence presented in support of plaintiffs’ motion, 21 specifically resident data sheets and expert reports. A hearing on the motions was held on 22 February 7, 2017. Attorney Nicholas Coulson appeared on behalf of plaintiffs. Attorneys 23 Christopher Hall, Jacob Rhode, and Joseph Callow appeared on behalf of defendant. Having 24 considered the parties’ briefs and oral arguments and for the reasons set forth below, the court 25 will deny defendant’s motion to strike the resident data sheets, deny defendant’s motion to 26 exclude the reports of plaintiffs’ experts, and deny plaintiffs’ motion for class certification. 27 ///// 28 ///// 1 1 BACKGROUND 2 Defendant operates an animal rendering facility at 795 W. Belgravia Avenue in Fresno, 3 California. (Doc. No. 49 at 5.) Animal rendering involves breaking down animal waste 4 products—generally carcasses—into usable products, such as “valuable ingredients for various 5 soaps, paints and varnishes, cosmetics, explosives, toothpaste, pharmaceuticals, leather, textiles, 6 and lubricants.” The Rendering Process, NATIONAL RENDERS ASSOCIATION, 7 (last visited Aug. 29, 2016). Defendant’s facility 8 is permitted to process up to 850,000 pounds of animal material each day. (Doc. No. 47-1 at 7.) 9 Defendant operates its plant—purportedly located in the middle of an industrial area that is also 10 home to other industrial facilities, farms, and agriculture businesses including some involved in 11 animal processing—“pursuant to an Odor Control Plan and under a [p]ermit issued by the 12 [District].” (Doc. No. 49 at 5.) 13 On May 7, 2014, Donna Conroe, Allen Conroe, and Kimberly Tapscott-Munson 14 (“plaintiffs”) filed suit against Darling Ingredients (“defendant”)—an owner and operator of a 15 rendering plant—in the Fresno County Superior Court. (Doc. No. 1.)1 Defendant removed the 16 case to this court pursuant to 28 U.S.C. §§ 1332, 1441. (Id.) On August 13, 2014, plaintiffs filed 17 their First Amended Complaint (“FAC”). (Doc. No. 20.) Therein, plaintiffs claim that the 18 rendering process, combined with defendant’s alleged failure to implement proper controls, has 19 infused their neighborhood with noxious odors and “forced [them] to live with the smell of rotting 20 death at their homes.” (Id. at 8.)2 21 On February 2, 2016, plaintiffs filed a motion pursuant to Federal Rule of Civil Procedure 22 23 to certify the class of owner/occupiers and renters of residential property who lived within 1.5 23 24 25 26 27 28 1 Linda and Donald Brooks were also plaintiffs in this action when it was initiated. However, on September 18, 2015 a stipulation of dismissal as to those two plaintiffs was filed with the court pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. (Doc. No. 43.) 2 Plaintiffs also note defendant has been the subject of odor complaints by residents made to the San Joaquin Valley Air Pollution Control District (“the District”) as well as a lawsuit brought by a citizens group. (Doc. No. 20 at 7) (citing Doc. Nos. 47-7, 47-17). However, these allegations do not appear relevant to resolution of the pending motion for class certification. 2 1 miles of defendant’s plant between May 12, 2011 and the date of class certification. (Doc. No. 2 47.) On March 1, 2016, defendant filed its opposition to that motion. (Doc. No. 49.) Plaintiffs 3 filed a reply on March 15, 2016. (Doc. No. 53.) In support of their motion, plaintiffs submitted 4 for the court’s review a trial plan (Doc. No. 47-2), a preliminary air modeling report drafted by 5 Board Certified Environmental Engineer David Weeks, P.E. (Doc. No. 47-3), a preliminary report 6 on odor sources and mitigation prepared by Professor of Food Process Engineering Dr. Timothy 7 Bowser, P.E. (Doc. No. 47-4), and 160 survey responses, which plaintiffs titled “Resident Data 8 Sheets” (Doc. Nos. 47-10, 47-11). 9 On March 15, 2016, defendant filed two separate motions attacking plaintiffs’ evidentiary 10 support for their motion for class certification. (Doc. Nos. 51, 52.) The first such defense motion 11 is a motion to strike an exhibit—labeled “Resident Data Sheets”—which plaintiffs’ attached to 12 their class certification motion. (Doc. No. 51.) The second motion is a motion to exclude the 13 reports of plaintiffs’ experts. (Doc. No. 52.) Plaintiffs filed oppositions to both of defendant’s 14 motions on March 30, 2016. (Doc. Nos. 54, 55.)3 Below, the court will first address defendant’s motions before turning to plaintiffs’ motion 15 16 for class certification. 17 MOTION TO STRIKE THE RESIDENT DATA SHEETS 18 Defendant moves to strike the Resident Data Sheets submitted by plaintiffs. The Resident 19 Data Sheet exhibit consists of seventy-two one-page surveys sent out by plaintiffs’ counsel to 20 residents in the neighborhood surrounding defendant’s plant. (Doc. No. 47-10, 47-11.) The 21 forms are marked as “advertising material” and were sent to residents in conjunction with a notice 22 explaining that plaintiffs’ counsel was “investigating the possibility of filing litigation against 23 Darling International for the emission of noxious odors.” (Doc. No. 51-2 at 3.) The survey asked 24 the respondent if he or she owns the home or is a tenant, the length of time he or she has resided 25 at the property, and whether he or she has “noticed odors from Darling International at [his or 26 her] home.” If the respondent answers yes to this last question, he or she was then requested to 27 28 3 The hearing on the motion for class certification and the motions to strike and exclude were continued several times pursuant to the parties’ stipulations. (Doc. Nos. 59, 63, 66 and 69.) 3 1 elucidate on the character, duration, effect of the offensive odors. The respondent was also asked 2 to sign and date the survey in the designated fields, above which reads “I swear that the above 3 answers are true and accurate to the best of my knowledge.” 4 Defendant argues the Resident Data Sheets constitute inadmissible hearsay because they 5 are not notarized and not signed under penalty of perjury. (Doc. No. 51-1 at 4.) Defendant also 6 argues the Resident Data Sheets are the equivalent of a “push poll” because “[t]here was no 7 option on the questionnaire to indicate that odors may have emanated from a third-party source . . 8 . .” (Id. at 2.) Plaintiffs contend the declarations should not be stricken because courts are not 9 prohibited from considering inadmissible evidence at the class certification stage of litigation. 10 “In determining whether a class is to be certified, the [c]ourt looks to the parties’ 11 allegations and other material ‘sufficient to form a reasonable judgment on each requirement.’” 12 Parkinson v. Hyundai Motor America, 258 F.R.D. 580, 599 (C.D. Cal. 2008) (quoting Blackie v. 13 Barrack, 524 F.3d 891, 901 (9th Cir. 1975)). Although the Ninth Circuit has not explicitly stated 14 as much, district courts have concluded that this “other material” need not be admissible in order 15 to be considered by the court at class certification. See Arredondo v. Delano Farms Co., 301 16 F.R.D. 493, 505 (E.D. Cal. 2014) (“Since a motion to certify a class is a preliminary procedure, 17 courts do not require strict adherence to the . . . Federal Rules of Evidence.”) (citing Eisen v. 18 Carlisle and Jacquelin, 417 U.S. 156, 178 (1974)). 19 On the other hand, the court “should not abandon admissibility standards entirely at the 20 certification stage,” Parkinson, 258 F.R.D. at 599, because it must still perform a “rigorous 21 analysis” when determining whether a party has satisfied the burden of establishing compliance 22 with Rule 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011). In this respect, 23 district courts are left to tread the line between not enforcing the Federal Rules of Evidence at the 24 class certification stage of the litigation while still ensuring that “[a] party seeking class 25 certification . . . affirmatively demonstrate[s] . . . that there are in fact sufficiently numerous 26 parties, common questions of law or fact, etc.” Dukes, 564 U.S. at 350. 27 28 One question on which there has been little consensus among district courts is how to treat declarations submitted in support of class certification that are not executed under penalty of 4 1 perjury. Generally, for a declaration to be admissible, the declarant must “declare . . . under 2 penalty of perjury . . . .” 28 U.S.C. § 1746. Some courts have found this requirement 3 inapplicable at class certification, noting that while the declarations may be inadmissible at later 4 stages, “strict adherence to the Federal Rules of Evidence” is not required at class certification. 5 Gonzalez v. Millard Mall Services, Inc., 281 F.R.D. 455, 459–60 (S.D. Cal. 2012) (citing Eisen, 6 417 U.S. at 178); see also Bell v. Addus Healthcare, Inc., No. CO6-5188RJB, 2007 WL 2463303, 7 at *3 (W.D. Wash. Aug. 27, 2007) (permitting submission of declarations not executed under 8 penalty of perjury). Other courts have been less forgiving. See Soto v. Castlerock Farming and 9 Transportation, Inc., No. 1:09-cv-00701-AWI-JLT, 2013 WL 6844377, at *10 (E.D. Cal. Dec. 10 23, 2013) report and recommendation adopted, No. 1:09-CV-00701-AWI, 2014 WL 200706 11 (E.D. Cal. Jan. 16, 2014) (striking declarations not signed under penalty of perjury); Charlebois v. 12 Angels Baseball, LP, No. SACV 10-0853 DOC (ANx), 2011 WL 2610122, at *8 (C.D. Cal. June 13 30, 2011) (declining “to consider any evidence submitted by Plaintiff that comes by way of an 14 unsigned declaration” because such evidence “lack[ed] any indicia of reliability”). 15 Though not signed specifically under penalty of perjury, the court notes that the signed 16 surveys at issue here cannot accurately be characterized as unsworn since the signers swore that 17 the information was true and correct to the best of the signer’s ability. In any event, strict 18 adherence to the rules of evidence is not required at this stage of the proceedings. Additionally, 19 the surveys are not being offered for the truth of the matters asserted therein, rather, as plaintiffs’ 20 counsel has explained, they are merely “illustrative of the resident testimony that plaintiffs will be 21 offering at the class certification stage in conjunction with scientific expert testimony.” (Doc. No. 22 73 at 6.) According to plaintiffs, the completed surveys “also demonstrate widespread interest in 23 the litigation.” (Id.) Courts that have struck declarations not signed under penalty of perjury 24 have done so because they lacked any indicia of reliability. See, e.g. Charlebois, 2011 WL 25 2610122, at * 8 (noting that, the declarations offered were “unsigned, or were not even written by 26 the declarants themselves, but were recounted by memory of counsel’s staff after speaking with 27 declarants.”) 28 ///// 5 1 Here, the signed surveys submitted by plaintiffs are accompanied by some indicia of 2 reliability: (1) the signers have themselves written out a description of the odors and how they 3 affect their ability to use and/or enjoy their home; and (2) the surveys are signed and sworn to be 4 true and accurate to the best of the signer’s knowledge. Accordingly, the court finds that the 5 Resident Data Sheet surveys should not be excluded at this stage of the proceedings and may be 6 considered by the court in determining whether class certification is warranted. Therefore, 7 defendant’s motion to strike the resident data sheets will be denied. 8 MOTION TO EXCLUDE THE OPINIONS OF DAVID WEEKS 9 AND TIMOTHY BOWSER 10 Defendant also moved to exclude the expert reports of Environmental Engineer David 11 Weeks and Professor of Food Process Engineering Dr. Timothy Bowser. Defendant argues the 12 opinions expressed in those reports are “irrelevant, unhelpful, and speculative” because plaintiffs’ 13 experts have yet to perform any relevant testing. (Doc. No. 52-1 at 5–6.) Defendant notes that 14 the reports posit only what testing could be performed rather than reporting results obtained from 15 testing that has been conducted. (Id. at 6.) Plaintiffs argue that defendant has failed to attack the 16 credentials of their experts or the reliability of their experts’ testimony. (Doc. No. 54 at 3.) 17 Instead, according to plaintiffs, defendant inappropriately seeks to exclude the expert reports on 18 the grounds that they do not address the merits of plaintiffs’ claims even though discovery with 19 respect to the merits has yet to commence in this case. (Id. at 1.) 20 21 a. Legal Standard Generally, the admission of expert testimony is controlled by Federal Rules of Evidence 22 702 and the decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 23 “[Federal Rule of Evidence 702] consists of three distinct but related requirements: (1) the subject 24 matter at issue must be beyond the common knowledge of the average layman; (2) the witness 25 must have sufficient expertise; and (3) the state of the pertinent art or scientific knowledge 26 permits the assertion of a reasonable opinion.” United States v. Finley, 301 F.3d 1000, 1007 (9th 27 Cir. 2002). “Prior to the evaluation of those three requirements, however, Daubert holds that a 28 trial court must make ‘a preliminary assessment of whether the reasoning or methodology 6 1 underlying the testimony is scientifically valid and of whether that reasoning or methodology 2 properly can be applied to the facts in issue.’” Spann v. J.C. Penny Corp., 307 F.R.D. 508, 515– 3 16 (C.D. Cal. 2015) (quoting Daubert, 509 U.S. at 592–93). However, “at the class certification 4 stage, district courts are not required to conduct a full Daubert analysis.” Tait v. BSH Home 5 Appliances Corp., 289 F.R.D. 466, 495 (C.D. Cal. 2012). The general standard by which district 6 courts perform their gatekeeping function during the merits phase of an action is replaced at class 7 certification with “an analysis tailored to whether an expert’s opinion was sufficiently reliable to 8 admit for the purpose of proving or disproving Rule 23 criteria, such as commonality and 9 predominance.” Id. “[T]he court should ask only if expert evidence is useful in evaluating 10 whether class certification requirements have been met.” Id; see also Herron v. Best Buy Stores, 11 LP, No. 2:12-cv-02103-TLN-CKD, 2016 WL 1572909, at *2 (E.D. Cal. Apr. 18, 2016) (noting 12 “robust gatekeeping of expert evidence is not required” at the class certification stage). 13 Here, for the reasons explained below, the court concludes that the preliminary reports by 14 plaintiffs’ experts are useful for purposes of determining whether class certification requirements 15 have been met as of yet.4 16 b. Analysis 17 i. 18 David Weeks’s Report In his report, Environmental Engineer David Weeks concludes that potential class 19 members’ exposure to noxious odors over the duration of the proposed class period can be 20 assessed by using the American Meteorological Society/EPA Regulatory Model (“AERMOD”), 21 “the preferred model for short-range dispersion modeling” of the Environmental Protection 22 Agency. (Doc. No. 47-3 at 7.) AERMOD is a proven method, and its use in creating air 23 dispersion models has received approval from a federal regulatory agency. Defendant does not 24 challenge this fact; nor does it challenge the ability to apply AERMOD to the case at hand. 25 Moreover, Mr. Weeks states in his report that the data needed to construct a model is available 26 and that AERMOD can differentiate between “odor complaints originating from multiple 27 28 4 Although, this is the case more because of what those preliminary reports fail to establish as much, if not more, than because of what is set forth therein. 7 1 sources.” (Id. at 9.) Mr. Weeks concedes that AERMOD is not “100 percent accurate 100 2 percent of the time.” Nonetheless, this is an issue the parties could contest at the merits phase of 3 this litigation. (Id.) Ultimately, the Weeks report supports the notion that AERMOD can be used 4 to show the range, frequency, and impact of the alleged odor emissions; in other words, such 5 testing can be used to establish commonality and predominance. Accordingly, the court 6 concludes that Mr. Weeks’s expert report satisfies the requirements of Daubert for purposes of 7 determining the appropriateness of class certification. Furthermore, Mr. Weeks is a licensed 8 engineer who has experience with air dispersion modeling and is an expert under the 9 requirements of Federal Rule of Evidence 702. Finally, the subject matter is one that is 10 appropriate for expert opinion. Thus, as to Mr. Weeks’s expert report, defendant’s motion to 11 strike will be denied. 12 ii. 13 Dr. Timothy Bowser’s Report The court also finds Dr. Timothy Bowser’s report admissible for the purpose of these class 14 certification proceedings. In his report Dr. Bowser discusses testing methods that would allow 15 him to assess “[t]he sources within the rendering facility which are responsible for odor 16 emissions” as well as “[t]he effectiveness of mitigation efforts taken by [defendant], and the 17 potential effectiveness of further mitigation efforts.” (Doc. No. 47-4 at 10.) In his report, Dr. 18 Bowser also discusses the ability to perform a systematic odor assessment and states that 19 “[i]nternational standards are available to guide the methods and practices of odor measurement.” 20 (Id. at 4.) The court sees no reason not to consider this expert opinion that a method exists to 21 trace the source and level of odor emissions. Dr. Bowser’s report would appear to be helpful in 22 addressing the requirement of commonality under Rule 23. 23 Dr. Bowser is a Professor of Food Process Engineering at Oklahoma State University with 24 over 30 years of experience in the food processing industry and has written several papers and 25 book chapters on the subject. (Id. at 1.) Moreover, industrial food processing engineering is a 26 subject that lies beyond the knowledge of the average, untrained layperson. Accordingly, Dr. 27 Bowser satisfies the requirements of Federal Rule of Evidence 702. For these reasons, the court 28 denies defendant’s motion to strike the expert report of Dr. Bowser. 8 PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 1 2 a. Legal Standard 3 The class action is a procedural mechanism whereby the “usual rule that litigation be 4 conducted by and on behalf of the named parties only” is swept aside so that multiple parties— 5 unwieldly in number but possessing similar or identical claims—may pursue common redress in 6 an efficient and economical manner. Comcast v. Behrend, 569 U.S. —, —, 133 S. Ct. 1426, 1432 7 (2013) (quoting Dukes, 564 U.S. at 348). See also Abdullah v. U.S. Sec. Associates, Inc., 731 8 F.3d 952, 963–64 (9th Cir. 2013). Federal Rule of Civil Procedure 23 controls class certification 9 and imposes a two-step process designed to ensure not only that this system of representative 10 adjudication nets expediencies for the litigants and the judiciary, but that it does not sacrifice 11 procedural fairness or zealous advocacy in the process of doing so. 12 Rule 23(a) is a hurdle that must be overcome for a case to proceed as a class action. It 13 consists of four prerequisites, often described as: (1) numerosity, (2) commonality, (3) typicality, 14 and (4) adequacy. If—and only if—a putative class satisfies these four requirements may the 15 plaintiffs attempt to show that the class also satisfies one of the three subsections of Rule 23(b). 16 The party seeking class certification bears the burden of establishing conformity with these 17 requirements, and must do so by producing facts “affirmatively demonstrat[ing]” that certification 18 is warranted. Comcast, 133 S. Ct. at 1432; Dukes, 564 U.S. at 350; Just Film, Inc. v. Buono, 847 19 F.3d 1108, 1115 (9th Cir. 2017). A court must review the merits of a party’s substantive claim to 20 the extent that they overlap with issues touching on class certification. Dukes, 564 U.S. at 351 21 (“[T]he class determination generally involves considerations that are enmeshed in the factual and 22 legal issues comprising the plaintiff’s cause of action.’ [citations omitted]”); Ellis v. Costco 23 Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (“[I]t is not correct to say a district court may 24 consider the merits to the extent that they overlap with class certification issues; rather, a district 25 court must consider the merits if they overlap with the Rule 23(a) requirements.”) (citing Dukes, 26 564 U.S. at 350-51 and Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992)); see 27 also Blair v. The CBE Group, Inc., 309 F.R.D. 621, 625 (S.D. Cal. 2015). Only after it has 28 conducted a “rigorous analysis” of these facts and determined they show actual, and not 9 1 presumed, conformance with Rule 23(a) and (b), may a district court certify a class. Ellis, 657 2 F.3d at 980–81 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S 147, 160, 161 (1982)); see also 3 Comcast, 133 S. Ct. at 1432 (extending the “rigorous analysis” requirement to Rule 23(b)); Patel 4 v. Nike Retail Services, Inc., Case No. 14-cv-4781-RS, 2016 WL 1241777, at *3 (N.D. Cal. Mar. 5 29, 2016) (“This ‘rigorous’ analysis applies both to Rule 23(a) and Rule 23(b).”).5 6 As an initial and practical matter, however, the court should first determine whether the 7 class is ascertainable. That is a problematic question in this case, given the slim basis for the 8 class definition proposed by plaintiffs in their pending motion, and the court turns to it below.6 9 b. Definiteness “[T]he Ninth Circuit [and] the Supreme Court [have not] explicitly acknowledge[ed] in 10 11 any published opinion that ‘ascertainability’ or ‘definiteness’ is a required element of class 12 certification that imposes obligations independent of the enumerated Rule 23 factors.” Lilly v. 13 Jamba Juice Co., 308 F.R.D. 231, 236 (N.D. Cal. 2014). However, in dicta and unpublished 14 opinions, the Ninth Circuit has suggested that a class must nonetheless be ascertainable if it is to 15 be certified. See id. (citing Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1071, n.4 (9th Cir. 16 2014), Pierce v. County of Orange, 526 F.3d 1190, 1200 (9th Cir. 2008), and Martin v. Pac. 17 Parking Sys. Inc., 583 F. App’x. 803, 804 (9th Cir. 2014)). There are three concerns in 18 determining whether ascertainability is satisfied: 19 (1) whether the class action can be ascertained by reference to objective criteria; (2) whether the class includes members who are not entitled to recovery; and (3) whether the putative named plaintiff can show that he will be able to locate absent class members once a class is certified. 20 21 22 Ebarle v. Lifelock, Inc., No. 15-cv-00258-HSG, 2016 WL 234364, at *5 (N.D. Cal. Jan. 20, 23 2016). Determining that a class is ascertainable is “meant to ensure the proposed class definition 24 5 25 If a court does certify a class, it must define the class claims and issues and appoint class counsel. Fed. R. Civ. P. 23(c)(1), (g). 26 6 27 28 Whether one views it as an issue of ascertainability, commonality or predominance, the problem here is a definitional deficiency in plaintiffs’ rationale for seeking certification of a class defined as those located within a 1.5-mile radius of defendant’s facility—a definition that does not appear to be grounded upon any sufficiently supported objective justification. 10 1 will allow the court to efficiently and objectively ascertain whether a particular person is a class 2 member.” Pena v. Taylor Farms Pacific, Inc., 305 F.R.D. 197, 206 (E.D. Cal. 2005); see also 3 Henry v. Home Depot, Case No. 14-cv-4858-JST, 2016 WL 1755398, at *8 (N.D. Cal. May 3, 4 2016) (“[A] class definition is sufficient if the description of the class is ‘definite enough so that it 5 is administratively feasible for the court to ascertain whether an individual is a member.”’) 6 Vietnam Veterans of Am. v. C.I.A., 288 F.R.D. 192, at 211-12 (N.D. Cal. 2012) (“Where the class 7 definition proposed is overly broad or unascertainable, the court has the discretion to narrow it.”). 8 9 Defendant argues that here the proposed class definition is overbroad and not ascertainable. Specifically, defendant notes that in their complaint plaintiffs alleged a class made 10 up of those within three miles of its facility, that they now propose a class made up of those 11 within a 1.5-mile radius of the facility, that plaintiffs have presented no evidence showing that 12 defendant “bears any relationship to the proposed 1.5-mile geographic area,” and that the class 13 definition incorporating that 1.5-mile radius is baseless, improper and purely speculative. (Doc. 14 No. 49 at 12.) Additionally, defendant contends that plaintiffs have not offered any evidence 15 indicating how owners/occupants and renters who are class members will be identified. (Id. at 16 13.) Furthermore, according to defendant, the proposed class definition includes “individuals 17 who have not suffered any harm” because there is no evidence that all the owners, occupants, or 18 renters within the 1.5-mile radius of the facility were affected by any odors. (Id. at 13–14.) 19 Plaintiffs respond that the class “clearly includes two categories of persons, 20 ‘owner/occupants’ and ‘renters’ of residential property. (Doc. No. 53 at 5.) According to 21 plaintiffs, persons who own but do not occupy residential property within the 1.5-mile radius area 22 are therefore outside the class definition. (Id.) Plaintiffs contend, however, that “while renters 23 and owner/occupants will have differing damages, they are indeed similarly situated for purposes 24 of this litigation.” (Id. at 5–6.) While this contention may be apt for purposes of ascertaining the 25 class members, the court finds plaintiffs’ objective criteria establishing the geographic boundaries 26 of the class proposed for certification to be far more questionable. 27 28 An adequate basis for a proposed class definition is uniquely important in class action cases presenting toxic tort or nuisance claims based on alleged environmental harm. As one court 11 1 2 3 4 5 6 7 8 9 has observed in addressing the definition of the class in such a case: Often an objective characterization of exposure to a particular substance defines class members. Other times, courts define classes by geographical boundaries, but in such circumstances, courts often seek a reasonable relationship between the proposed boundary and the defendants’ allegedly harmful activities. Regardless, courts have rejected proposed classes where plaintiffs failed to “identify any logical reason . . . for drawing the boundaries where they did.” See, e.g., Daigle v. Shell Oil Co., 133 F.R.D. 600, 603 (D. Colo. 1990) (holding that plaintiffs had “failed to identify a class” where the proposed boundaries did not appear to “relat[e] to the defendants’ activities”). Usually, scientific or objective evidence closely ties the spread of the alleged pollution or contamination to the proposed class boundaries. See, e.g., Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 61 (S.D. Ohio 1991). 10 Brockman v. Barton Brands, Ltd., No. 3:06CV-322-H, 2007 WL 4162920, at *2 (W.D. Ky. Nov. 11 21, 2007); Burkhead v. Louisville Gas & Electric Company, 250 F.R.D. 287, 293 (W.D. Ky. 12 2008) (“To be clear, the Court is not troubled by the lack of such evidence merely because the 13 Court fears individualized or non-uniform damage calculations, but rather because without it 14 there seems to be virtually no evidence in the record that distinguishes members of the proposed 15 class from the general public based upon acts of LG & E.”); see also Powell v. Tosh, 280 F.R.D. 16 296, 312 (W.D. Ky. 2012), on reconsideration, No. 5:09-CV-121, 2012 WL 2601946 (W.D. Ky. 17 July 5, 2012) (granting class certification in a nuisance/negligence suit brought by landowners 18 against owners of a swine barn over noxious orders after considering plaintiffs’ expert report 19 “stating that the barn produces an effect that extends 1.25 miles from the Ron Davis Hog Barn in 20 all directions” and which supported a finding that the class as defined was definite); O’Connor v. 21 Boeing N. Am. Inc., 180 F.R.D. 359, 368 (C.D. Cal. 1997) (noting that, “[c]ourts have found that 22 a definable class may be established by geographic boundaries[,]” and listing cases where the 23 class was certified based on those boundaries as determined in the reports of experts). 24 Here, nothing in the expert reports before the court indicates any rationale behind 25 plaintiffs’ choosing of a 1.5-mile radius as the geographic boundary for the proposed class. 26 Indeed, the only mention of the area involved appears to be in Dr. Bowser’s report where it is 27 indicated that residential areas are located within a quarter mile of defendant’s facility. (Doc. No. 28 47-4 at 7, Ex. 3.) At oral argument on the pending motion, plaintiffs’ counsel explained that the 12 1 1.5-mile radius aspect of the proposed class definition was based upon a “preponderance of the 2 people who have contacted [the] firm either through resident data sheets or otherwise, or who 3 have, I believe, made complaints to a governmental entity.” (Doc. No. 73 at 18.) Plaintiffs’ 4 counsel also represented that the 1.5-mile radius currently includes people most severely 5 impacted by the odor issue and is, therefore, a conservative geographic boundary. The court 6 construes these representations as essentially indicating that plaintiffs’ counsel based the 7 definition of the class now proposed for certification, not upon any preliminary finding made by 8 their experts or upon a thorough analysis of a detailed survey of those possibly impacted areas, 9 but rather upon their own interpretation of the limited information available to them. 10 11 12 13 14 15 16 17 18 The court in Brockman found a similar basis insufficient for purposes of ascertaining a class definition: At bottom, Plaintiffs’ motion rests upon complaints of residents in the Bardstown area about various substances and odors on their property, a recital of the emissions of the Defendant’s facility, and Dr. Wabeke’s report that it is possible that emissions from Defendant’s plant could be related to those substances. Nowhere in Plaintiffs’ evidence has the Court found, for example, test results for any substances Plaintiffs allege have fallen onto their property, or any sort of analysis of where the emissions of Defendant’s plant spread once they leave Defendant’s smokestack. These omissions are particularly glaring given how seemingly easy it would be for Plaintiffs to have obtained such information and how frequently such information plays a key role in class certification decisions for other courts in similar cases. 19 Brockman, 2007 WL 4162920 at *4. Similarly, the undersigned concludes that plaintiffs have 20 failed to adequately define the proposed class here. Plaintiffs argue that, in a literal sense, class 21 members are certainly ascertainable based upon their proposed 1.5-mile radius class definition. 22 The problem is that the 1.5-mile radius aspect of the class definition has no acceptable basis in 23 objective fact and is therefore arbitrary. This failure would appear to be based at least in part 24 upon plaintiffs’ decision not to conduct any preliminary scientific testing, or even to undertake a 25 thorough analysis of a detailed survey of those possibly impacted areas, for submission in support 26 of their class certification motion and to rest instead on their argument that testing was relevant 27 only to the merits phase of this litigation. In short, plaintiffs have failed to carry their burden of 28 demonstrating that certification of their proposed class is warranted. See Haight v. Bluestem 13 1 Brands, Inc., Case No. 6:13-cv-1400-ORL-28KRS, 2015 WL 12830482, at *3–4. (M.D. Fla. May 2 14, 2015), report and recommendation adopted, No. 6:13-cv-1400-ORL-28KRS, 2015 WL 3 12835994 (M.D. Fla. June 1, 2005) (noting that, it is the plaintiffs’ burden to establish 4 ascertainability and concluding that due to their failure to present reasonably available evidence 5 the court was unable to conclude that plaintiffs had met that burden), report and recommendation 6 adopted 2015 WL 12835994 (M.D. Fla. June 1, 2015); Groussman v. Motorola, Inc., Case No. 10 7 C 911, 2011 WL 5554030, at *7 (N.D. Ill. Nov. 15, 2011) (“Plaintiffs, as movants, had the burden 8 to delineate an appropriate proposed class definition and have failed to do so.”); Humphrey v. 9 Int’l Paper, Case No. 02 C 4147, 2003 WL 22111093, at *5 (N.D. Ill. Sept. 11, 2003) (“Since it is 10 the burden of the plaintiffs to establish all of the requirements for class certification . . . the 11 serious inadequacy of the proposed class definition is reason enough to deny the motion.”). 12 Nonetheless, below the court will address whether the additional requirements for class 13 certification have been met since the deficiency discussed above may be capable of being cured 14 through the submission of results from preliminary scientific testing or other means providing 15 some adequate basis for the proposed class definition. See Briseno v. ConAgra Foods, Inc., 844 16 F.3d 1121, 1124, n. 4 (9th Cir. 2017) (“[W]e have addressed the types of alleged definitional 17 deficiencies other courts have referred to as “ascertainability” issues . . ., through analysis of Rule 18 23’s enumerated requirements. See, e.g., Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136– 19 39 (9th Cir. 2016) (addressing claim that class definition was overbroad—and thus arguably 20 contained some members who were not injured—as a Rule 23(b)(3) predominance issue); Probe 21 v. State Teachers’ Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986) (recognizing that a class must not 22 be vaguely defined and must be “sufficiently definite to conform to Rule 23”)).7 23 ///// 24 ///// 25 7 26 27 28 “It is appropriate to deny a motion without prejudice where . . . the plaintiffs have failed to submit sufficient evidence in support of class certification.” Newberry v. County of San Bernardino, No. EDCV 14-2298 JGB (SPX), 2015 WL 9701153, at *7 (C.D. Cal. July 23, 2015); see also In re Apple ipod iTunes Antitrust Litig., No. C 05-00037 JW, 2008 WL 5574487, at *5, 9 (N.D. Cal. Dec. 22, 2008). 14 1 2 c. Rule 23(a) i. Numerosity 3 Rule 23 requires a class be so numerous that joinder of all members individually is 4 “impracticable.” Fed. R. Civ. P. 23(a). This “does not mean that joinder must be impossible, but 5 rather means only that the court must find that the difficulty or inconvenience of joining all 6 members of the class makes class litigation desirable.” Millan v. Cascade Water Servs., Inc., 310 7 F.R.D. 593, 603 (E.D. Cal. Oct. 8, 2015) (quoting In re Itel Sec. Litig., 89 F.R.D. 104, 112 (N.D. 8 Cal. 1981)). See also Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913–14 (9th 9 Cir.1964); Parkinson v. Hyundai Motor Am., 258 F.R.D. 580, 588 (C.D. Cal. 2008). A plaintiff 10 seeking class certification is not required to show that the number of potential class members 11 exceeds an established threshold. Gen. Tel. Co. v. E.E.O.C., 446 U.S. 318, 330 (1980). That 12 said, a potential class consisting of at least forty members will generally be treated as satisfying 13 the numerosity requirement. See Odgen v. Bumble Bee Foods, LLC, 292 F.R.D. 620, 624 (N.D. 14 Cal. 2013); Collins v. Cargill Meat Solutions Corp., 274 F.R.D. 294, 300 (E.D. Cal. 2011) 15 (“Courts have routinely found the numerosity requirement satisfied when the class comprises 40 16 or more members.”). 17 Plaintiffs assert the proposed class here consists of “approximately 4,745 residential 18 properties.” (Doc. No. 47-1 at 12.) While this number consists of properties, and not individuals, 19 assuming that each residence has at least one owner/occupier or renter, the proposed class would 20 consist of close to 5,000 people. Moreover, defendant does not challenge this number. Thus, it 21 would appear that if the deficiency with respect to the class definition discussed above were to be 22 corrected, numerosity would likely be satisfied in this case. 23 24 ii. Commonality Rule 23(a)(2) requires that there exists “questions of fact and law which are common to 25 the class.” Fed. R. Civ. P. 23(a)(2). However, “[a]ll questions of fact and law need not be 26 common to satisfy the rule.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). 27 Rather, “the plaintiff [must] demonstrate that the class members ‘have suffered the same injury.’” 28 Dukes, 564 U.S. at 350 (quoting Gen. Tel. Co. of Sw. Falcon, 457 U.S. 147, 157 (1982)). Absent 15 1 a showing of “common contentions,” a class proceeding is not justified because common 2 answers—capable of resolving “the validity of each one of the claims in one stroke”—cannot be 3 generated. Id.; see also Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012) 4 (“[C]ommonality requires that the class members’ claims ‘depend upon a common contention’ 5 such that ‘determination of its truth or falsity will resolve an issue that is central to the validity of 6 each claim in one stroke.’”). 7 According to plaintiffs, the potential class members here all share the same contention: 8 defendant harmed them by allegedly releasing noxious odors into the community surrounding its 9 rendering plant. (Doc. No. 47-1 at 13.) It is true that the two causes of action plaintiffs levy 10 against defendant—nuisance and negligence—are both susceptible to common proof because 11 they focus, for the most part, on defendant’s behavior and not the behavior of the potential class 12 members. 13 It is clear that the ascertainability and class definition issues discussed above overlap to a 14 significant degree with the commonality determination. See Briseno, 844 F.3d at 1124, n. 4. For 15 the reasons discussed above in addressing ascertainability, the court concludes plaintiffs’ have 16 failed to meet their burden of establishing commonality. Again, if this deficiency were to be 17 cured through the submission of some evidence as to the source of the noxious order which is the 18 subject of this action and the geographic area impacted thereby, it would appear to the 19 undersigned that commonality could be established. 20 21 iii. Typicality “The claims or defenses of the representative parties [must be] typical of the claims and 22 defenses of the class.” Fed. R. Civ. P. 23(a)(3). They need not be clones; rather, all that is 23 required is that the claims or defenses be “reasonably co-extensive.” Hanlon, 150 F.3d at 1020 24 (The standard is a “permissive” one and requires only that the claims of the class representatives 25 be “reasonably co-extensive with those of absent class members; they need not be substantially 26 identical.”); see also In re NJOY, Inc. Consumer Class Action Litig., 120 F. Supp. 3d 1050, 1098 27 (C.D. Cal. 2015). “The test of typicality ‘is whether other members have the same or similar 28 injury, whether other class members have been injured by the same course of conduct.’” Hannon 16 1 v. Dataproducts Corp., 976 F.2d at 508 (quoting Schwartz v. Harp, 108 F.R.D. 279, 282 2 (C.D.Cal.1985)). Typicality is not satisfied when a class representative is subject to defenses 3 atypical to the class. Ellis, 657 F.3d at 984; Hanon, 976 F.2d at 508 (Typicality may be lacking 4 “if ‘there is a danger that absent class members will suffer [because] their representative is 5 preoccupied with defenses unique to it.’”) (quoting Gary Plastic Packaging Corp. v. Merrill 6 Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990)). 7 Plaintiffs argue that their claims are typical of the class and any differences defendant now 8 is attempting to raise “are superficial and/or irrelevant to the typicality determination.” (Doc. No. 9 47-1 at 14.) Plaintiffs assert that their injury and that of the class members originate from the 10 same course of conduct attributable to the defendant and claim that “[t]he named plaintiffs are 11 pursuing the same claims possessed by absent class members on the same legal theories.” (Id.) 12 Finally, plaintiffs maintain that no further showing is required and that typicality has been 13 satisfied. (Id.) 14 Defendant argues that plaintiffs’ claims and those of the putative class arise from a 15 multitude of events that posit different legal arguments necessary to establish defendant’s 16 liability. (Doc. No. 49 at 15.) Further, defendant contends that plaintiffs have failed to establish 17 typicality because they do not explain “their own theory or theories of liability much less 18 demonstrate that they share the theory with the all members of the putative class.” (Id.) 19 Accordingly, defendant urges the court to deny plaintiffs’ motion for class certification due to the 20 lack of supporting evidence presented. (Id. at 16.) 21 As noted above, the movant for class certification bears the burden of proving that 22 certification is warranted. Comcast, 133 S. Ct. at 1432; Dukes, 564 U.S. at 350. The Supreme 23 Court has not specified the burden of proof borne by the plaintiff with respect to satisfying the 24 requirements of Rule 23 and lower courts have adopted divergent approaches with respect to that 25 burden. See Reyes v. Netdeposit, LLC, 802 F.3d 469, 484 (3d Cir. 2015) (applying the 26 preponderance of the evidence standard and rejecting the district court’s application of an 27 absolute proof standard); Alaska Elec. Pension Fund v. Flowserve Corp., 572 F.3d 221, 228–29 28 (5th Cir. 2009) (applying a preponderance of the evidence standard); see also Vega v. T-Mobile 17 1 USA, Inc., 564 F.3d 1256, 1268 (11th Cir. 2009) (noting that, the burden of proof is “relatively 2 light”). The Ninth Circuit has not explicitly adopted the preponderance of the evidence standard 3 in this regard, though some district courts within the Circuit have recognized this as the trend. 4 See Smilovits v. First Solar, Inc., 295 F.R.D. 423, 427 (D. Ariz. 2013) (noting that, the Ninth 5 Circuit has not adopted a particular approach, but that at least four circuits apply a preponderance 6 of the evidence standard and observing “[t]his standard appears to be the trend in federal courts, 7 and ‘merely requires that [plaintiffs] demonstrate that it is more likely than not that a particular 8 requirement of Rule 23 [ ] has been satisfied.’” (quoting Shepherd v. Babcock & Wilcox of Ohio, 9 No, C-3-98-391, 2000 WL 987830, at *1 n.5 (S.D. Ohio Mar. 3, 2000))). 10 Assuming that the preponderance of the evidence standard applies to this inquiry, it has 11 nonetheless been recognized that “sometimes it may be necessary for the court to probe behind 12 the pleadings before coming to rest on the certification question,” and certification is proper only 13 if “the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have 14 been satisfied.” Dukes, 564 U.S. at 350–51. Thus, where plaintiffs provide a conclusory 15 statement that their claims are typical of the class and that the injuries arise from the same course 16 of conduct by the defendant, the court may look to the complaint to ascertain whether typicality 17 has been satisfied. See Shook v. El Paso County, 386 F.3d 863, 968 (10th Cir. 2004) (noting that, 18 in conducting its own rigorous analysis, “the court must accept the substantive allegations of the 19 complaint as true, although it ‘need not blindly reply on conclusory allegations which parrot Rule 20 23’ and ‘it may consider the legal and factual issues presented by plaintiff’s complaints.’”). 21 Here, the proposed class includes “all persons who were owners/occupiers and renters of 22 residential property within 1.5-miles of Defendant’s rendering plant at any point between May 12, 23 2011 and the date the Class is certified.” (Doc. No. 47-1 at 9.) Named plaintiffs Donna and 24 Allen Conroe and Kimberly Tapscott-Munson purportedly reside within 1.5 miles of the 25 rendering plant. (Doc. No. 49 at 5.) While the degree and impact of the alleged injury may vary 26 depending on where within the impacted radius each class member lives, the basic nature of the 27 injury is likely to be the same and will have arisen from the defendant’s alleged conduct 28 involving the emission of noxious odors. Thus, were plaintiffs to cure the deficiency noted above 18 1 with respect to ascertainability and class definition, the undersigned believes that typicality would 2 likely also be satisfied at least with respect to the issue of defendant’s liability. 3 4 iv. Adequacy of Representation Plaintiffs seeking class certification must also show that they “will fairly and adequately 5 protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “To determine whether named 6 plaintiffs will adequately represent a class, courts must resolve two questions: ‘(1) do the named 7 plaintiffs and their counsel have any conflicts of interest with the other class members and (2) 8 will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the 9 class?’” Ellis, 657 F.3d at 985 (quoting Hanlon, 150 F.3d at 1020). “An absence of material 10 conflicts of interest between the named plaintiffs and their counsel with other class members is 11 central to adequacy and, in turn, to due process for absent members of the class.” Rodriguez v. 12 West Publ’g Corp., 563 F.3d 948, 959 (9th Cir. 2009) (citing Hanlon, 150 F.3d at 1020). 13 Accordingly, “[c]lass certification will be inappropriate if fundamental conflicts of interest are 14 determined to exist among the proposed class members.” Allied Orthopedic Appliances, Inc. v. 15 Tyco Healthcare Grp., L.P., 247 F.R.D. 156, 177 (C.D. Cal. 2007). 16 Plaintiffs allege that they have “vigorously advanced the claims of the class and will 17 continue to do so.” (Doc. No. 47-1 at 14.) Plaintiffs assert that before bringing this case, they 18 retained counsel with substantial experience in litigating similar cases. (Id.) Further, plaintiffs 19 maintain that they have complied with discovery requests, have provided deposition testimony, 20 and have assisted counsel with investigation in connection with this action. (Id.) 21 Defendant maintains that the named plaintiffs cannot adequately represent the putative 22 class because they cannot identify the location of the facility “or the source, frequency, or degree 23 of odor they purport to have suffered.” (Doc. No. 49 at 16.) For example, according to 24 defendant, “Ms. Conroe testified that she had never been to the facility, driven by it, does not 25 know what it looks like, does not know any of the companies around it, does not know the 26 direction of the plant from her house, or which way the wind blows from the plant, does not recall 27 telling anyone the odor originated from Darling.” (Id. (citing Donna Conroe Dep. (Doc. No. 49- 28 6) at 19:19–20:2, 23:13-24, 31:22–32:6, and 36:2-9).) Additionally, defendant points out, 19 1 plaintiff Allen Conroe testified at his deposition that he had no personal knowledge or facts to 2 support the allegation that the odors came from Darling. (Id. (citing Allen Conroe Dep. (Doc. No. 3 49-2) at 19:7-18 and 32:3-7). Defendant contends that plaintiff Mr. Conroe could not even testify 4 how often the odors occurred (e.g., weekly, daily, monthly) or whether the odor was better or 5 worse or continuous or intermittent since 1981. (Id. at 17 citing Allen Conroe Dep. (Doc. No. 49- 6 2) at 14:3-16, 21:20–22:11, 25:11-25, 25:24–26:3, and 27:20–28:1). Defendant states that 7 plaintiff Tapscot-Munson “also could not specify the details of her odor accusation.” (Id. (citing 8 Kimberly Tapscott-Munson Dep. (Doc. No. 49-3) at 24:22–25:4).) 9 Plaintiffs respond that “the Ninth Circuit has never imposed a knowledge requirement on 10 class representatives at the certification stage.” (Doc. No. 53 at 8) (citing Trosper v. Styker Corp., 11 No. 13-cv-0607-LHK, 2014 WL 4145448, at *42 (N.D. Cal. Aug. 21, 2014)). Rather, plaintiffs 12 maintain that where district courts within the Ninth Circuit have imposed a knowledge standard 13 as to the named plaintiffs in a class action, the threshold has not been high and only a 14 “rudimentary understanding” of the action and “a demonstrated willingness to assist counsel in 15 the prosecution of the litigation” has been required. (Id.) (quoting and citing Trosper, 2014 WL 16 4145448, at *42, In Re Live Concert Antitrust Litig., 247 F.R.D. 98, 120 (C.D. Cal. 2007) and In 17 re Tableware Antitrust Litig., 241 F.R.D. 644, 649 (N.D. Cal. 2007)). Plaintiffs maintain that 18 “[d]efendant asks for the sort of detailed understanding of the facts of the case that named 19 plaintiffs are not required to have.” (Id.) Finally, plaintiffs assert that they will adequately 20 represent the class because there are no conflicts of interest and their counsel will vigorously 21 litigate the case on behalf of the putative class. (Id.) 22 Although a demanding knowledge requirement on the part of named plaintiffs is not 23 imposed, “[b]ecause class representatives serve as a guardian of the interests of the class, the 24 representatives must have some minimal familiarity with the litigation.” In re Tableware 25 Antitrust Litig., 241 F.R.D. at 649 (citing Burkhalter Travel Agency v. MacFarms Int’l, Inc., 141 26 F.R.D. 144, 153 (N.D. Cal. 1991)); see also Mendez v. C-Two Group, Inc., Case No. 13-cv- 27 05914-HSG, 2015 WL 8477487, at *6 (N.D. Cal. Dec. 10, 2015). The representatives cannot 28 “blindly rely on counsel to the extent he lacks familiarity with the case.” In re THQ, Inc. Sec. 20 1 Litig., No. CV 00-1783AHM(EX), 2002 WL 1832145, at *6 (C.D. Cal. Mar. 22, 2002). 2 Accordingly, class certification has been denied “in flagrant cases, where the putative class 3 representatives display ‘an alarming unfamiliarity with the suit.’” Id. (quoting In re Frontier Ins. 4 Grp., Inc. Sec. Litig., 172 F.R.D. 31, 46 (E.D.N.Y. 1997)). 5 Here, defendant maintains that the named plaintiffs have never been to the facility. 6 However, in the court’s view it cannot fairly be said that the named plaintiffs lack an 7 understanding of where the offending odor emanates from. Specifically, the named plaintiffs 8 demonstrated some knowledge of where defendant’s plant is generally located and that the odor 9 in question originates from there. (Doc. Nos. 49-2 at 7; 49-3 at 4.) In any event, unfamiliarity 10 with the defendant is not the type of “alarming unfamiliarity with the suit” that would be 11 sufficient to defeat class certification. See In re THQ, Inc. Sec. Litig., 2002 WL 1832145, at *7 12 (C.D. Cal. Mar. 22, 2002) (noting that, plaintiffs’ unfamiliarity with the names of six of the seven 13 defendants was not sufficient to defeat class certification). Thus, at least general knowledge of 14 where the defendant’s plant is located or where the odor stems from is sufficient. 15 Moreover, each of the named plaintiffs has expressed an understanding of the underlying 16 theory of the case, that defendant’s operations at the rendering plant release noxious odors into 17 the air. (Doc. Nos. 49-2 at 4; 49-3 at 4; 49-6 at 3.) Notably, plaintiff Kimberly Tapscott-Munson 18 testified at her deposition that, “it is such an offensive odor it makes you immediately sick to your 19 stomach or you need to flee inside.” (Doc. No. 49-3 at 3.) This is sufficient for purposes of 20 establishing adequacy of representation. See In re Tableware Antitrust Litig., 241 F.R.D. at 649– 21 50 (finding that, plaintiffs adequately represented the class because despite their lack of detailed 22 understanding of the facts of the case, plaintiffs understood the underlying theory of the action: 23 “that plaintiffs overpaid for tableware due to the exclusion of Bed, Bath & Beyond from the 24 market.”). 25 Plaintiffs have also indicated that they are willing to protect the interests of the class. For 26 example, when asked why he chose to become a plaintiff in the lawsuit, Allen Conroe testified 27 that he wanted to be 28 ///// 21 1 2 a representative for the ones involved in the complaint and because of the problems that we’re having in our neighborhoods. As far as the smell goes and the things we have to deal with that I feel shouldn’t be, that I didn’t create or have any doing with creating it. 3 4 (Doc. No. 49-2 at 4.) While plaintiffs have not conducted their own investigations or filed other 5 complaints against defendant, they have spoken with neighbors, and as indicated have complied 6 with discovery requests, provided deposition testimony, and assisted counsel with the 7 investigation. (Doc. No. 47-1 at 14.) 8 Accordingly, were the deficiencies with respect to ascertainability and class definition to 9 be adequately addressed, on the present record the court would conclude that the named plaintiffs 10 have sufficient familiarity with the case to serve as adequate representatives for the putative class. 11 d. Rule 23(b)(3) 12 Certification under Rule 23(b)(3) is permitted when “the questions of law or fact common 13 to class members predominate over any questions affecting only individual members, and . . . a 14 class action is [deemed to be] superior to other available methods for fairly and efficiently 15 adjudicating the controversy.” Dukes, 564 U.S. at 362 (quoting Fed. R. Civ. P. 23(b)(3)); see also 16 Tyson Foods, Inc. v. Bouaphaeko,—U.S. —, —, 136 S. Ct. 1036, 1045 (2016). “The Rule 17 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant 18 adjudication by representation,” Amchem, 521 U.S. at 622, whereas the superiority requirement 19 demands courts “assess the relative advantages of alternative procedures for handling the total 20 controversy” in order to determine that a “class action is the ‘superior’ method of resolution.” 21 Fed. R. Civ. Pro. 23(b)(3), Advisory Committee’s Note; see also Pointer v. Bank of Am. Nat’l 22 Ass’n, No. 2:14-cv-0525 KJM-CKD, 2016 WL 696582, at *8 (E.D. Cal. Feb. 22, 2016). Below, 23 the court will address these two requirements in the context of the pending motion. 24 25 i. Predominance Rule 23(b)(3) requires a plaintiff to show “(1) that the existence of individual injury 26 resulting from the alleged . . . violation . . . [is] capable of proof at trial through evidence that is 27 common to the class rather than individual to its members; and (2) that the damages resulting 28 from that injury [are] measureable on a class-wide basis through use of a common methodology.” 22 1 Comcast, 133 S. Ct. at 1430. Rule 23(b)(3)’s predominance requirement is more demanding than 2 the commonality requirement of Rule 23(a). Id. at 1432; Abdullah v. U.S. Sec. Assocs., Inc., 731 3 F.3d 952, 963 (9th Cir. 2013). However, the rule does not demand that all issues be common, but 4 rather only that common issues predominate over individual issues. Id. at 964. For example, 5 where liability can be proved on a class-wide basis but proof of damages may depend on 6 individual determinations, certification is not necessarily precluded. Leyva v. Medline Indus. Inc., 7 716 F.3d 510, 514 (9th Cir. 2013); see also Jiminez v. Allstate Ins. Co., 765 F.3d 1161, 1167–68 8 (9th Cir. 2014). When deciding if a plaintiff has satisfied Rule 23(b)(3), a court must “consider 9 [ ] all factors that militate in favor of, or against, class certification.” Vinole v. Countrywide 10 Home Loans, Inc., 571 F.3d 935, 946 (9th Cir. 2009) (citation omitted). 11 Plaintiffs argue that common issues of fact and law predominate here because the two 12 underlying causes of action—nuisance and negligence—both largely premise liability on 13 objective standards concerning defendant’s behavior. (Doc. No. 47-1 at 16–17.) Plaintiffs 14 contend the “substantial” and “unreasonable” elements of a nuisance claim are judged against an 15 objective standard, and thus, are independent of the idiosyncratic sensitivities of the individual 16 potential class members. (Id. at 16.) Plaintiffs also assert, in regard to their negligence claim, 17 that the issue of what duty defendant owed to potential class members is an issue of law that does 18 not require individualized determination. (Id. at 17.) While defendant argues otherwise, the court 19 agrees that such objective determinations as will be required in this action are potentially well 20 suited for class treatment where common evidence can be presented, and that the duty of care 21 defendant owes to the putative class members is “a question of law for the court” under California 22 law. Lockheed Martin Corp. v. Superior Court, 29 Cal. 4th 1096, 1106 (2003). 23 Defendant argues that establishing liability in this case will require individualized proof to 24 determine the source of the odor. Defendant also contends that the odor in question may instead 25 come from other nearby plants or other sources or practices such as those identified by Dr. 26 Bowser, including trucks, routes, leaks and spills, unloading operations, rendering materials, as 27 well as drainage and rainfall. 28 ///// 23 1 The court is persuaded that factual inquiries required by both state law torts alleged here 2 are potentially capable of class wide proof through the use of AERMOD air modeling. 3 AERMOD can determine the frequency, intensity, and duration of odor contamination in 4 particular areas. This data can be used to determine if (and when) defendant created a nuisance 5 by modeling if odors released by defendant crossed the nuisance threshold (i.e., reached a level 6 that would disrupt a reasonable person’s enjoyment of his or her property). It is certainly very 7 possible that the same data would also be capable of proving the causation and injury elements of 8 a nuisance claim. 9 Nonetheless, for the same reasons discussed above with respect to ascertainability, the 10 court concludes that plaintiffs have failed to satisfy their burden of establishing that Rule 11 23(b)(3)’s predominance requirement has been met here.8 See Briseno, 844 F.3d at 1124 n.4 12 (citing Torres, 835 F.3d at 1136–39 (9th Cir. 2016) (contention that a class definition was 13 overbroad and thus arguably contained members who were not injured addressed as an issue of 14 predominance under Rule 23(b)(3)). 15 ii. Superiority 16 17 When deciding if a class action is a superior method of adjudicating the claims, courts consider the following factors: (A) the class members’ interests in individually controlling the prosecution or defense of 18 19 20 separate actions; ///// 21 8 22 23 24 25 26 27 28 Defendant argues that proving damages, or the nature and extent of any harm suffered, will require individualized proof in this case. Specifically, defendant contends that “the alleged severity of the odor is personal to each property,” damages will vary depending on whether the particular plaintiff has a physical illness, and “[t]he alleged interruption of the enjoyment of property varies per claimant based on the activities he or she enjoys, whether family are involved, [and] the presence of outdoor recreational structures on the property.” (Doc. No. 49 at 23.) Defendant asserts that these issues are, therefore, not conducive to class-wide proof. It may be that proving the severity or degree of impact the noxious odor has had on each member of a class could require individualized proof to account for idiosyncrasies such as illnesses, distance, wind patterns, and climate conditions to such an extent as to justify the bifurcation of liability and damages. However, because the pending class certification motion will be denied without prejudice, the court need not reach the issue at this time. 24 1 (B) the extent and nature of any litigation concerning the controversy already begun by or 2 against the class members; 3 (C) the desirability or undesirability of concentrating the litigation of the claims in the 4 particular forum; and 5 6 (D) the likely difficulties in managing the class action. Fed. R. Civ. P. 23(b)(3). 7 Here, defendant argues that there is already ongoing litigation being pursued on behalf of 8 area residents. (Doc. No. 47-1 at 24.) Plaintiffs, however, point out that the litigation commenced 9 by “Concerned Citizens of West Fresno,” although currently in mediation, has not made progress 10 and would not compensate the area residents for the alleged nuisance caused by defendant. (Doc. 11 No. 47-1 at 8, n.2.) 12 The court agrees that in this case class litigation appears potentially superior to any other 13 forms of dispute resolution. In the event an appropriate class can be identified, each class 14 member’s claim would be too small to justify the litigation costs that would be incurred 15 individually and the basis for the claims of each class member would be identical. It also does 16 not appear that any one class member would have a materially greater interest in controlling the 17 litigation. Moreover, under those circumstances, if class certification were to be denied, the only 18 alternative for the putative class members would be to bring actions in their individual capacities, 19 which would waste the resources of the parties and the court. Finally, individual actions would 20 have preclusive effect only as to the individual who brought such actions. Thus, in the event that 21 the deficiencies with respect to ascertainability and class definition were to be cured, it would 22 appear that superiority could be established as well. 23 ///// 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 25 1 CONCLUSION 2 For the reasons stated above: 3 1. Plaintiffs’ Motion for Class Certification (Doc. No. 47) is denied without prejudice; 4 2. Defendant’s Motion to Strike the Resident Data Sheets (Doc. No. 51) is denied; and 5 3. Defendant’s Motion to Exclude the Reports of David Weeks and Dr. Timothy Bowser 6 7 8 9 (Doc. No. 52) is denied. IT IS SO ORDERED. Dated: March 30, 2017 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26

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