TOSCANO, ET AL. v. USA
Filing
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ORDER granting 21 Motion to Certify Class. The parties are directed to confer and propose to chambers by April 22, 2011, a proposed schedule for further proceedings in this case. Signed by Senior Judge Eric G. Bruggink. (mc5) Copy to parties.
In the United States Court of Federal Claims
No. 08-910
(Filed: April 13, 2011)
**********************
MARIA AND MARCOS TOSCANO,
Rails to Trails Act; statute of
limitations; motion for class
certification; Bright v. United
States, 603 F.3d 1273 (Fed. Cir.
2010)
Plaintiffs,
v.
THE UNITED STATES,
Defendant.
**********************
Steven M. Wald, St. Louis, MO, for plaintiff.
E. Barrett Atwood, United States Department of Justice, Environment
and Natural Resources Division, San Francisco, CA, with whom was Ignacia
S. Moreno, Assistant Attorney General, for defendant.
_________
OPINION
_________
BRUGGINK, Judge.
Pending is plaintiffs’ motion to certify a class action pursuant to Rule
23 of the Rules of the Court of Federal Claims (“RCFC”) for an alleged taking
of their property under the Rails to Trails Act, 16 U.S.C. §§ 1241-51 (2006).
Defendant opposes the motion, arguing that the statute of limitation bars the
claims of those putative class members who are not currently plaintiffs and
that, in any event, plaintiffs cannot satisfy the requirements for a class action.
The motion is fully briefed, and we heard argument on April 5, 2011. For the
reasons explained below, we grant plaintiffs’ motion.
1
BACKGROUND 1
The three plaintiffs currently named in the complaint own real estate in
Weber and Davis Counties, Utah, that underlies or abuts an approximately 24mile railroad right-of-way. This railway was owned by Union Pacific Railroad
Company, which, in November of 2002, filed a notice of exemption with the
Surface Transportation Board (“STB”), seeking authority to abandon the
railroad line. The Utah Transit Authority (“UTA”) subsequently filed with the
STB a request for the issuance of a Notice of Interim Trail Use (“NITU”),
which would allow it to negotiate with Union Pacific for interim use. The
STB issued the NITU on December 31, 2002. Union Pacific and the UTA
subsequently reached an agreement transferring the railway to the UTA for use
as a public recreational trail and for possible future reactivation as a railroad.
On December 22, 2008, not quite six years after the NITU, plaintiffs
filed suit here, alleging a Fifth Amendment taking of their property. The
complaint’s caption identifies the named plaintiffs as acting “For Themselves
and As Representatives of a Class of Similarly Situated Persons.” Compl. 1.
Count one of the complaint identifies the stretch of railroad at issue, alleges
that it lay across plaintiffs’ property, recites the background leading to the
NITU, and claims that the operation of the Trails Act affected a taking. Count
two of the complaint alleges that the proposed class satisfies each of the
requirements of RCFC 23. The complaint explicitly “request[s] certification
of the class as identified herein . . . .” Id. at 3-4. Shortly thereafter, and before
any action had been taken on the request for certification, the six-year statute
of limitations ran on December 30, 2008.
The parties subsequently jointly requested that the case be stayed
pending the appeal of Fauvergue v. United States, 86 Fed. Cl. 82 (2009), to the
Federal Circuit. Because of the similarity of the issue presented in
Fauvergue—“whether putative class members are allowed to opt in after the
six-year statute of limitations has expired, when the class-action complaint was
filed before the expiration as to one plaintiff and was amended after expiration
to add other plaintiffs as putative class members,” id. at 84—we granted the
stay. The Federal Circuit subsequently reversed the Fauvergue trial court’s
dismissal of the class action claims. Bright v. United States, 603 F.3d 1273
1
The relevant facts are drawn from the allegations in the complaint and
the parties’ briefs and appended material. The government does not dispute
these facts, though it challenges the sufficiency of the support proffered.
2
(Fed. Cir. 2010). We then lifted the stay and ordered plaintiffs to file a motion
for class certification.
DISCUSSION
We have jurisdiction under the Tucker Act, which gives this court
jurisdiction over Fifth Amendment takings claims against the United States.
See 28 U.S.C. § 1491 (2006); Morris v. United States, 392 F.3d 1372, 1375
(Fed. Cir. 2004) (“[T]he Tucker Act provides the Court of Federal Claims
exclusive jurisdiction over takings claims for amounts greater than $10,000.”
(citing Palm Beach Isles Assocs. v. United States, 208 F.3d 1374, 1383 n.10
(Fed. Cir. 2000))). The Fifth Amendment states in pertinent part that private
property shall not “be taken for public use, without just compensation.” U.S.
Const. amend. V. A property owner may recover the value of property taken
by the government even where there was no formal exercise of the power of
eminent domain. Moden v. United States, 404 F.3d 1335, 1342 (Fed. Cir.
2005) (citing United States v. Clarke, 445 U.S. 253, 257 (1980)).
We need not recite at length the legal framework of the Trails Act,
which has been thoroughly explained in published opinions of this court and
the Federal Circuit. See Bright v. United States, 603 F.3d 1273, 1275-76 (Fed.
Cir. 2010); Rasmuson v. United States, 91 Fed. Cl. 204, 205-07 (2010). Of
note here is that Trails Act takings claims, like all claims brought under the
Tucker Act, are subject to a six-year statute of limitations, 28 U.S.C. § 2501
(2006), which begins to run on the date the NITU is issued. Barclay v. United
States, 443 F.3d 1368, 1374 (Fed. Cir. 2006).
Here, we confront two issues. First, we must decide, when a complaint
requesting class certification is timely filed but a motion for class certification
is not filed until after the statute has run, whether the complaint tolls the statute
of limitations. If we answer that question in the affirmative, we must then
determine whether plaintiffs here satisfy the requirements set forth in Rule 23
to proceed as a class.
I.
Statute of Limitations
Our analysis of the first issue is guided primarily by the Federal
Circuit’s recent decision in Bright. On facts that were similar, though not
identical to those here, the Federal Circuit held that so long as class
certification was timely sought, the statute of limitations was tolled during the
opt-in period:
3
[W]hen a class action complaint is filed and class certification
is sought prior to the expiration of section 2501’s limitations
period, the limitations period is subject to class action tolling
during the period the court allows putative plaintiffs to opt in to
the class.
Bright, 603 F.3d at 1290. The Federal Circuit, however, left “for another day
the question of whether tolling would be allowed where class certification was
sought after expiration of the limitations period.” Id. at 1290 n.9. Here, the
government argues that this case falls in the category of cases described in
Bright’s footnote nine because plaintiffs did not file their motion for class
certification until after the statute of limitations had run. We disagree,
however, and think that this case falls squarely within Bright’s holding, thus
tolling the statute of limitations.2
Key to our conclusion is Bright’s repeated statement that the limitations
period is tolled when a class action complaint is filed and “class certification
is sought prior to the expiration of the section 2501 limitations period.” Id. at
1274 (emphasis added); see also id. at 1290. Here, plaintiffs’ complaint
specifically requests certification of the proposed class. The complaint alerts
the government of the type of claim brought, identifies the specific act giving
rise to the claim, specifies the location of the parcels at issue, and requests
certification of a class consisting of the owners of those parcels. While we
recognize that plaintiffs in Bright had filed a timely motion for class
certification, the court never declared that a motion was required. Rather, it
held it sufficient that class certification was “sought.”
This interpretation comports with Rule 23, which neither requires nor
mentions a motion for class certification. Rather, the rule assumes that the
court may certify a class on the basis of the complaint: “At an early practicable
time after a person sues as a class representative, the court must determine by
order whether to certify the action as a class action.” RCFC 23(c)(1)(A).3 The
2
Even if this case does raise a question which was preserved by Bright,
we believe the correct result is the one adopted here.
3
Wright and Miller recognize a similar implication in Rule 23 of the
Federal Rules of Civil Procedure: “Either plaintiff or defendant may move for
a determination of whether the action may be certified under Rule 23(c)(1).
However, the court has an independent obligation to decide whether an action
brought on a class basis is to be so maintained even if neither of the parties
4
clear implication is that the court may certify or deny the class on the basis of
the complaint.4
Here, plaintiffs explicitly sought class certification in their complaint.
We believe this is sufficient to toll the statute of limitations during the opt-in
period. Any concerns noted in Bright about the adequacy of notice to
defendant are amply satisfied here where the complaint clearly notified the
government of the collective nature of the claim and general outline of the
class.
II.
Rule 23 Requirements for Class Certification
Having determined that this complaint is sufficient to toll the statute of
limitations, we must next determine whether plaintiffs satisfy the requirements
set forth in Rule 23 to proceed as a class. We conclude that they do. Rule 23
sets out essentially five criteria:
(i) numerosity—a class so large that joinder is impracticable; (ii)
commonality—in terms of the presence of common questions of
law or fact, the predominance of those questions, and the
treatment received by the class members at the hands of the
United States; (iii) typicality—that the named parties’ claims are
[typical] of the class; (iv) adequacy—relating to fair
representation; and (v) superiority—that a class action is the
fairest and most efficient way to resolve a given set of
controversies.
Rasmusen, 91 Fed. Cl. at 210 (quoting Barnes v. United States, 68 Fed. Cl.
482, 494 (2005)). Plaintiffs have the burden of proving they satisfy these
moves for a ruling under subdivision (c)(1).” 7AA Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 17850
(3d ed.1998) (internal citations omitted).
4
The government argues that if a complaint is the sole criterion on
which class certification is “sought,” then all the elements necessary to support
class certification should not only be plead but established with the same
degree of certainty as in a motion. We disagree. Tolling of the statute merely
requires that certification be “sought,” not established. A complaint that seeks
certification and identifies the class is sufficient to put the government on
notice of the claim and to toll the statute of limitations.
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requirements. Id. (“[T]he party moving for class certification bears the burden
of establishing, by a preponderance of the evidence, the requirements set forth
in RCFC 23.” (citing Filosa v. United States, 70 Fed.Cl. 609, 615 (2006);
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974))).
Here, we believe the requirement of numerosity is satisfied. Plaintiffs
counsel estimates the putative plaintiffs may number greater than 800, and the
government does not dispute the sufficiency of this number to satisfy the
requirement. See King v. United States, 84 Fed. Cl. 120, 124 (2008) (“[I]f
there are more than forty potential class members, this prong has been met.”
(citing Stewart v. Abraham, 275 F.3d 220, 226-27 (3rd Cir. 2001))). In
addition, these putative plaintiffs are dispersed over a broad area. See id. at
124-25 (citations omitted) (“Another factor to consider in determining
numerosity is the geographical location of the potential class members. If
plaintiffs are dispersed geographically, then a court is more likely to certify a
class action.”).
Likewise, we believe that the putative plaintiffs here have sufficient
commonality. There are common questions of law and fact presented that
predominate over any questions affecting individuals only, and the United
States has acted on grounds applicable to the entire class. See id. at 125. Here,
there is the requisite “‘one core common legal question that is likely to have
one common defense,’” id. (quoting Fisher v. United States, 69 Fed. Cl. 193,
199 (2006)), namely whether landowners’ property rights were taken by the
issuance of the NITU. This common issue certainly predominates over any
individual variations such as differences of title or differing damages allegedly
due. And the government, through the issuance of the NITU, has acted
generally toward all members of the class. Ultimately, while the class
members’ claims will not be identical, they have sufficient commonality to
warrant class treatment.
Similarly, we believe the named plaintiffs’ claims are typical of the
putative class members. “The threshold for typicality . . . is not high.” Id. at
126 (citations and internal quotation marks omitted). Here, the allegations
plead by the named plaintiffs, like any brought by putative class members,
involve a taking under the Trails Act. We are further convinced that plaintiffs
here are adequately represented by experienced counsel and that no conflicting
interests appear within the class. See id. at 127 (citing Barnes v. United States,
68 Fed. Cl. 492, 499 (2005)). Plaintiffs’ counsel have extensive experience,
including in the area of litigation presented here. Finally, we have no doubt
as to the superiority of proceeding with these claims as a class, rather than
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through piecemeal litigation of individual claims. Proceeding as a class here
will “achieve economics of time, effort, and expense, and promote
uniformity.” Barnes, 68 Fed. Cl. at 499 (citations omitted). In sum, we are
persuaded that all five of Rule 23’s requirements are satisfied here.
CONCLUSION
For the reasons explained above, we hold that a timely class action
complaint that specifically requests class certification is sufficient to toll the
statute of limitations during the period the court allows putative plaintiffs to
opt in to the class. We also hold that plaintiffs here have satisfied the
requirements to proceed as a class. Accordingly, we grant plaintiffs’ motion
and certify a class composed of all claimants who owned land as of December
30, 2002, underlying or abutting the Union Pacific Railroad Company railway
between mileposts 754.31 and 778.00 in Davis and Weber Counties, Utah.
The parties are directed to confer and propose to chambers by April 22, 2011,
a proposed schedule for further proceedings in this case.
s/ Eric G. Bruggink
ERIC G. BRUGGINK
Judge
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