BN v. Waltermann Murphy et al
Filing
72
OPINION AND ORDER denying 21 Motion to Certify Class. Signed by Judge Theresa L Springmann on 9/27/11. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
B.N., by his mother and next friend A.N.,
on behalf of himself and a class of those
similarly situated,
)
)
)
)
Plaintiffs,
)
)
v.
)
)
ANNE WALTERMANN MURPHY, et al, )
)
Defendants.
)
CAUSE NO.: 3:09-CV-199-TLS
OPINION AND ORDER
The Plaintiff, B.N., on behalf of himself and a putative class of others similarly situated,
has sued Anne Waltermann Murphy, in her official capacity as Secretary of the Indiana Family
and Social Services Administration; Pat Casanova, in her official capacity as Interim Director of
the Office of Medicaid Policy and Planning; and Megan Ornellas, in her official capacity as
Director of the Division of Aging. The Plaintiff asks for declaratory and injunctive relief because
a 2008 policy by the Indiana Family and Social Services Administration limits the number of
hours of respite care services per month available to individual enrollees under the Aged and
Disabled Waiver program. B.N., through his mother A.N., filed suit in LaPorte County, Indiana,
on April 14, 2009, alleging violations of the Americans with Disabilities Act of 1990, the
Rehabilitation Act of 1973, federal Medicaid law, and the Indiana Code’s promulgation
requirements. On May 1, 2009, the Defendants removed the case to this Court pursuant to 28
U.S.C. § 1331 and § 1367. On June 11, 2009, the Plaintiff filed a First Amended Class Action
Complaint for Declaratory and Injunctive Relief [ECF No. 20], alleging the same violations as
before, and additionally alleging violation of Indiana state Medicaid law. Also on June 11, the
Plaintiff filed an Amended Motion for Class Certification [ECF No. 21] with a corresponding
Memorandum of Law in Support of Amended Motion for Class Certification [ECF No. 22]. On
June 29, 2009, the Defendants filed Defendants’ Memorandum of Law in Opposition to
Plaintiff’s Amended Motion for Class Certification [ECF No. 25], and with subsequent
investigation filed Defendants’ Supplemental Brief and Evidentiary Materials in Opposition to
Plaintiff’s Amended Motion for Class Certification [ECF No. 35]. The Plaintiff responded on
October 15, 2009, with Plaintiffs’ Reply in Support of Amended Motion for Class Certification
[ECF No. 38]. Further, the parties have filed cross motions for summary judgment [ECF Nos. 39
& 45], but resolution of the Motion for Class Certification is appropriate before resolving the
summary judgment issue.1 The Defendants oppose maintenance of the Plaintiff’s lawsuit as a
class action.
BACKGROUND
B.N. is a severely handicapped minor2 who resides in LaPorte County, Indiana. He lives
with his parents, and due to cerebral palsy and other developmental handicaps, requires nearly
constant care. He cannot walk, talk, toilet, or eat, and is therefore fed by a tube inserted into his
small intestine.
1
Fed. R. Civ. P. 23(c)(1)(A) (“At an early practicable time after a person sues . . . , the court must
determine by order whether to certify the action as a class action.”). See Larson v. JPMorgan Chase &
Co., 530 F.3d 578, 581 (7th Cir. 2008) (opining that class certification issue should come before summary
judgment); Weismuller v. Kosobucki, 513 F.3d 784, 786–87 (7th Cir. 2008) (same); Bieneman v. City of
Chi., 838 F.2d 962, 964 (7th Cir. 2008) (“It is . . . difficult to imagine cases in which it is appropriate to
defer class certification until after a decision on the merits”); Lady Di’s, Inc. v. Enhanced Servs. Billing,
Inc., No. 1:09-CV-340-SEB-DML, 2010 WL 4751659, at *1 (S.D. Ind. Nov. 16, 2010) (stating that “the
general rule in the Seventh Circuit” is to resolve class certification first).
2
In June 2009, B.N. was eight years old. (First Am. Verified Class Action Compl. for Declaratory
and Injunctive Relief, ¶ 25, ECF No. 20.)
2
Indiana participates in the federal Medicaid program, providing medical services to many
low-income individuals through the Indiana Family and Social Services Administration. To
receive federal matching funds, Indiana’s Medicaid program must be approved by the United
States Department of Health and Human Services. Under federal Medicaid law, the Department
of Health and Human Services may waive certain Medicaid requirements for states that provide
“home or community-based services” for individuals who would otherwise require
institutionalizing as long as the cost of the in-home health care is less than the cost of
institutionalizing. 42 U.S.C. § 1396n(c)(1), (2)(D). In early 2008, the Indiana Family and Social
Services Administration submitted a waiver request to the Department of Health and Human
Services. One of the waiver provisions was a sixty hour per month limit on respite care services
available to individuals enrolled in Indiana’s Aged and Disabled Waiver program. Prior to this
waiver provision, many individuals in Indiana were being approved for more than sixty hours per
month in respite care services. In May 2008, the Department of Health and Human Services
approved Indiana’s requested waiver, and the sixty hour limitation went into effect in July 2008.
The evidence before the Court shows that many individuals in Indiana are eligible to
receive funding for home or community-based services through the Medicaid prior authorization
program, and that many individuals in Indiana who were previously approved for more than sixty
hours of respite care services under the Aged and Disabled Waiver program were able to find
providers and funding for the hours they needed in excess of sixty hours through the Medicaid
prior authorization program. (Def.’s Mem. of Law in Opp’n to Pl.’s Am. Mot. for Class
Certification 2, ECF No. 25.) Indeed, as part of its Motion for Summary Judgment, the Plaintiff
could not show that there were more than thirteen individuals who were unable to obtain
3
replacement funding through the Medicaid prior authorization program. (Pl.’s Reply in Supp. of
Mot. for Summ. J. and Resp. in Opp’n to Defs.’ Mot. for Summ. J. 3, ECF No. 49; Filler Dep.
143, ECF No. 39-3.)
Prior to 2008, B.N. received a combination of in-home nursing services. He received 50
hours per month of in-home nursing services through the Medicaid prior authorization program,
but these services were only available during the day on weekdays. He also received 80 hours per
month of respite care services through the Aged and Disabled waiver program. When the 60 hour
per month cap went into effect, B.N. applied for 80 hours of respite care services per month and
was denied. He subsequently applied for 60 hours of respite care services per month and that
request was approved. Because of the specifics of B.N.’s case, he was unable to make up the
difference with funding from the Medicaid prior authorization program.
In the Plaintiff’s Amended Motion for Class Certification, he defines the putative class as
follows: “All persons in Indiana who are or will be enrolled in or eligible for the Aged and
Disabled Waiver program and for whom more than sixty (60) hours a month in respite services is
or will be medically necessary.” (Am. Mot. for Class Certification 1; ECF No. 21.) The
Defendants argue that the Plaintiff has not met the requirements of numerosity, commonality,
typicality, nor any of the requirements under Federal Rule of Civil Procedure 23(b), and thus the
putative class should not be certified.
DISCUSSION
4
A.
Requirements for Class Certification
Federal Rule of Civil Procedure 23 governs the certification of class actions in federal
court. It allows a member of a class to sue as a representative party on behalf of all the class
members if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the
class.
Fed. R. Civ. P. 23(a). If all of these prerequisites are met, a court must also find that at least one
of the subsections of Rule 23(b) is satisfied:
(1) prosecuting separate actions by or against individual class members would
create a risk of:
(A) inconsistent or varying adjudications with respect to individual
class members that would establish incompatible standards of
conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a
practical matter, would be dispositive of the interests of the other
members not parties to the individual adjudications or would
substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly and efficiently
adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
5
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b). The party seeking class certification assumes the burden of demonstrating
that it is appropriate, Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir. 1984), and “[f]ailure to
meet any of the Rule’s requirements precludes class certification,” Arreola v. Godinez, 546 F.3d
788, 794 (7th Cir. 2008). The Court has “‘broad discretion to determine whether certification of a
class-action lawsuit is appropriate.’” Id., 546 F.3d at 794 (quoting Chavez v. Ill. State Police, 251
F.3d 612, 629 (7th Cir. 2001)).
The Plaintiff seeks to include in this action all persons who are or will be enrolled in the
Aged and Disabled Waiver program and for whom more than sixty hours per month of respite
care services are or will be medically necessary. The Plaintiff asserts that he has satisfied Rule
23(a)(1)–(4) and Rule 23(b)(2). Of the four criteria enumerated in Rule 23(a)—numerosity,
commonality, typicality, and adequacy of representation—the Defendants challenge the
Plaintiff’s ability to satisfy numerosity, commonality and typicality. Additionally, the Defendants
challenge the Plaintiff’s ability to meet any of the requirements of Rule 23(b). The Court will first
analyze the Defendants’ challenges to commonality, typicality, and under Rule 23(b)(2). The
Court finds that the Plaintiff has met all of these requirements. But because the Court concludes
the Plaintiff has failed to show numerosity, the Plaintiff’s Motion for Class Certification will be
denied.
B.
Commonality, Typicality, and the Requirements of Rule 23(b)(2)
6
The Court begins its analysis with an inquiry into commonality and typicality under Rule
23(a), and a further inquiry into whether the Plaintiff has met the requirements of Rule 23(b)(2).
The Defendants have not challenged whether the Plaintiff will fairly and adequately represent the
proposed class under Rule 23(a)(4), nor the qualifications and ability of the proposed class
counsel to conduct the litigation, and the Court therefore finds those requirements to be met.
1.
Commonality
The Court finds that the Plaintiff has satisfied the commonality requirement of Rule
23(a)(2). Commonality is usually satisfied by “[a] common nucleus of operative fact.” Rosario v.
Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). A common nucleus of facts is often present when
“defendants have engaged in standardized conduct towards members of the proposed class.”
Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (citing Chandler v. Sw. Jeep-Eagle, Inc., 162
F.R.D. 302, 308 (N.D. Ill. 1995)). Although some “facts pertaining to [the putative harm] vary
from case to case,” the commonality requirement of Rule 23(a)(2) is met where “[c]ommon
questions of law such as the interpretation and validity of the state and federal statutes and
regulations are present.” Like v. Carter, 448 F.2d 798, 802 (8th Cir. 1971); Rosario, 963 F.2d at
1017 (“some factual variation among the class grievances will not defeat a class action.”).
Here the question of whether the sixty hour cap on respite care services violates the
Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, federal and state
Medicaid law, and the promulgation requirements of the Indiana Code will be common to every
individual who is not receiving the necessary hours of services through the Medicaid prior
authorization program. The Defendants argue that each individual situation must be judged
7
differently since each individual may be approved for different numbers of hours and different
types of services. But here the Defendants have “engaged in standardized conduct towards
members of the proposed class.” Keele, 149 F.3d at 594. As the Plaintiff argues, the issue for
every member of the class will be the same—do these caps violate federal and state law? (Mem.
of Law in Supp. of Am. Mot. for Class Certification 3.) For every individual who falls in the gap
between the cap on respite care services and prior authorization funding, the common legal
questions will control, and thus commonality is present. See De La Fuente v. Stokely-Van Camp,
Inc., 713 F.2d 225, 232 (7th Cir. 1983) (“similarity of legal theory may control even in the face of
differences of fact”); Jones v. Blinziner, 536 F. Supp. 1181, 1190 (D.C. Ind. 1982) (commonality
met where “question of whether defendant’s policies . . . violate the Constitution of the United
States, the applicable federal laws and regulations and Indiana’s Rulemaking Act” was “common
to the class as a whole”); Rodriguez v. Swank, 318 F. Supp. 289, 294 (D.C. Ill. 1970)
(commonality met where questions of law including interpretation and constitutionality of the
regulations were common to the class).
2.
Typicality
The Plaintiff has also satisfied the typicality requirement of Rule 23(a)(3). As the Supreme
Court has noted, “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.”
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158 n.13 (1982). The typicality requirement is
usually satisfied when the named representative’s claims “have the same essential characteristics
as the claims of the class at large.” Retired Chi. Police Ass’n v. City of Chi., 7 F.3d 584, 597 (7th
Cir. 1993) (quoting De La Fuente, 713 F.2d at 232). Typicality is also met when the plaintiff’s
8
claim “arises from the same event or practice or course of conduct that gives rise to the claims of
other class members and his or her claims are based on the same legal theory.” De La Fuente, 713
F.2d at 232.
Here the Plaintiff’s claim is typical of every member of the putative class. For every class
member the claim will be that denial of more than sixty hours per month in respite services and
the concomitant unavailability of prior authorization services violates state and federal law. The
Defendants argue that the differences in each individual situation make the Plaintiff’s claim
atypical of the class he seeks to represent. But the Plaintiff’s claim is typical because no matter
the minor factual variations, every claim will be based on the same legal theory. Id. Under the
Plaintiff’s proposed class definition, the typicality requirement of Rule 23(a)(3) is met.
3.
Rule 23(b)(2)
The Plaintiff’s proposed class meets the requirements of Rule 23(b)(2), which requires
that “the party opposing the class has acted or refused to act on grounds that apply generally to
the class, so that final injunctive relief or corresponding declaratory relief is appropriate
respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). As the Seventh Circuit has stated, Rule
23(b)(2) “was intended to cover civil-rights cases.” Fujishima v. Bd. of Ed., 460 F.2d 1355, 1360
(7th Cir. 1972); Tyson v. Grant Cnty. Sheriff, No. 1:07-CV-0010, 2007 WL 1395563, at *5 (N.D.
Ind. May 9, 2007) (“Rule 23(b)(2) was drafted specifically to facilitate relief in civil rights
suits.”).
Here the Plaintiff is seeking declaratory and injunctive relief in a civil rights case, and the
requirements of Rule 23(b)(2) are met. The Government briefly argues that Rule 23(b)(2) cannot
9
be satisfied because respite care services are “highly personalized” and “based on the needs of
each individual client.” (Defs.’ Mem. of Law in Opp’n to Pl.’s Am. Mot. for Class Certification
7.) But the state’s action will “apply generally” to every individual who meets the class definition
by denying respite care services, and thus injunctive or declaratory relief will be appropriate for
the class. As the Plaintiff argues, the cap will apply to every individual falling within the class
definition regardless of their individual needs. Accordingly, the Plaintiff has satisfied Rule
23(b)(2).
C.
The Plaintiff’s Proposed Class and Numerosity
The parties’ arguments for and against class certification center around the numerosity
requirement. In his Amended Motion for Class Certification, the Plaintiff contends that the
number of people in the class is in the hundreds. The Plaintiff makes this argument based on the
implicit assumption that every individual who formerly received more than sixty hours of respite
services would fall into the class. In their Memorandum of Law in Opposition to class
certification, the Defendants argue that the number of people in the class is in the range of twenty
to thirty; then, in their Supplemental Brief, based on newly-gathered information, the Defendants
argue that the number of people in the class is only nine. The Defendants make this argument
because their records show that once the caps were instituted, there were only nine individuals
approved for more than sixty hours of respite care services.3 Here the Plaintiff’s rebuttal argument
is well-taken—the Defendants are arguing the class is limited to those who received more than
3
Pursuant to other litigation in Indiana state court, an injunction was entered against enforcement
of a cap on attendant care services. The State apparently responded by allowing case managers to approve
hours in excess of the caps for attendant care services as well as for respite care services. (Filler Dep.
68–69.)
10
sixty hours per month over a year after the cap had been in place, but that number is naturally
small given that the state had been enforcing the cap for over a year. In its response, the Plaintiff
argues the number of individuals in the class is in the hundreds because of data suggesting that
just six months before the cap took effect there were more than 450 people receiving over sixty
hours per month. However, the Plaintiff is again assuming that every individual who formerly
received more than sixty hours per month of respite services will fit into the class definition.4
The Plaintiff’s arguments fail because of the class definition itself. The putative class
includes those for whom more than sixty hours of respite services per month will be medically
necessary. Nowhere in its Class Certification motions does the Plaintiff address the Medicaid
prior authorization program. The evidence before the Court suggests that many of those who
formerly received more than sixty hours per month in respite care services are now able to get
funding for the remainder of the necessary hours through the prior authorization program. (Filler
Dep. 142–43.) It follows that if all of an individual’s hours are being funded through one program
or the other, then more than sixty hours per month of respite care services specifically are not
medically necessary.5 The burden is on the Plaintiff to show that the numerosity requirement is
4
The Attorney for the Plaintiff confirmed this at the September 1, 2011, telephone conference
[ECF No. 71].
5
The Defendants have not raised the issue of whether more than sixty hours of services were in
fact medically necessary for individuals previously approved for more than sixty hours. The Plaintiff
argues that the agency’s prior evaluation, and approval of a number of hours in excess of the cap, shows
that such services were deemed medically necessary under Indiana Medicaid law. (Pl.’s Reply in Supp. of
Am. Mot. for Class Certification 5.) The Defendants have not challenged that contention. In order to
resolve the numerosity issue, and applying the agreed definition of a “medically reasonable and necessary
service” as a service “that is required for the care or well being of the patient and is provided in
accordance with generally accepted standards of medical or professional practice,”(First Am. Ver. Class
Action Compl. ¶ 24), the Court must decide how many individuals who formerly received more than sixty
hours of respite care services would still meet that definition of medical necessity for respite care services
in light of the availability of prior authorization services.
11
satisfied. Trotter, 748 F.2d at 1184. Moreover, the Plaintiff’s class must be more than speculative.
Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989) (plaintiff “cannot rely on
conclusory allegations that joinder is impractical or on speculation as to the size of the class in
order to prove numerosity”) (citing Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 1976)); Roe
v. Town of Highland, 909 F.2d 1097, 1100 n.4 (7th Cir. 1990) (“mere speculation” is not enough
to demonstrate numerosity). Here the Plaintiff has not met his burden. The evidence before the
Court shows that in past years hundreds of individuals were approved for more than sixty hours of
respite care services per month. But the evidence does not show that hundreds of individuals who
formerly received more than sixty hours are now unable—or will in the future be unable—to
make up the difference through the Medicaid prior authorization program.6 See Marcial, 880 F.2d
at 957 (“[p]laintiffs contend that the class consists of approximately 400–600 persons but have
failed to establish that 400–600 persons would have legitimate claims”). On the contrary, the
largest number before the Court of those who fall in the gap between the respite care cap and
prior authorization funding is thirteen.7
6
The Plaintiff argues that the number of class members will increase in the future (Pl.’s Reply in
Supp. of Am. Mot. for Class Certification 7–8), but no factual basis has been developed to support that
argument. The Plaintiff has not shown why the number of people previously approved for more than sixty
hours of respite service and who are unable to get funding for their excess hours through the prior
authorization program will increase over time. Indeed, the record indicates that the number of those
falling in the gap will decrease over time as the State makes efforts to find adequate solutions for those
affected by the cap. (See Filler Dep. 91.) Even if those efforts are unsuccessful, the Plaintiff has not stated
why the number of those falling in the gap—currently not shown to be a large number—would change
dramatically in the future.
7
The Plaintiff specifically alleges that at least thirteen individuals were unable to get funding
through the prior authorization program for their hours in excess of sixty, at least as of March 27, 2009.
(Pl.’s Reply in Supp. of Mot. for Summ. J. and Resp. in Opp’n to Defs.’ Mot. for Summ. J. 3; Filler Dep.
143.) While this number comes from the Plaintiff’s Summary Judgment briefing, it is nevertheless a
pertinent statement before the Court of the number of class members falling within the class definition. If
the Plaintiff determines that the number of those falling in the gap is larger than thirteen, the Plaintiff
could put that information before the Court. See Kohen v. Pacific Inv. Mgmt. Co., 571 F.3d 672, 679 (7th
12
Given the class definition as set forth by the Plaintiff, and given no evidence that there are
more than thirteen individuals who would fit in the class, the question for the Court is whether
joinder of approximately thirteen disabled individuals all residing in the State of Indiana would be
impracticable. “[T]here is no magic number needed to establish numerosity.” Levitan v. McCoy,
No. 00 C 5096, 2003 WL 1720047, at *3 (N.D. Ill. Mar. 31, 2003) (citation omitted). See
Swanson v. Am. Consumer Indus., Inc. 415 F.2d 1326, 1333 n.9 (7th Cir. 1969) (151 is
“[c]ertainly . . . a sufficient number to permit a class suit to proceed”; even 40 “is a sufficiently
large group to satisfy Rule 23(a)”); EEOC v. Printing Indus. of Metro. Washington, D.C., Inc., 92
F.R.D. 51, 53 (D.C.D.C. 1981) (“as few as 25–30 members should raise a presumption that
joinder would be impracticable”); Allen v. Isaac, 99 F.R.D. 45, 53 (D.C. Ill. 1983) (certifying
class of 17 in light of geographic dispersion); Rosario v. Cook County, 101 F.R.D. 659, 661–62
(D.C. Ill. 1983) (certifying class of 20, and considering future class members); Cross v. Nat’l
Trust Life Ins. Co., 553 F.2d 1026, 1030 (6th Cir. 1977) (certifying class of 7, and considering
future class members). But see Arreola, 546 F.3d at 798 (“[w]e can assume that 14 would not be
enough”); Ansari v. N.Y. Univ., 179 F.R.D. 112, 114 (S.D.N.Y. 1998) (numerosity “satisfied
when the class comprises 40 or more members and . . . not . . . satisfied when the class comprises
21 or fewer”). Although there is no magic number, when the class is large, “numbers alone” tend
to be dispositive. Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D. Ill. 1986). But “when the
class is small,” courts must consider other factors to determine whether joinder is impracticable.
Cir. 2009) (advising that if new evidence surfaced, a party “could urge the district court to revisit its
decision” regarding certification). But when asked on September 1, 2011, if there was any new evidence
regarding numerosity, attorney for the Plaintiff stated there was none, ECF No. 71, and continued to
argue the number of class members included a percentage of all who formerly received more than sixty
hours of respite care services per month. For the reasons discussed above, that argument fails.
13
Id. Some of these factors include: “the geographical dispersion of the class, the ease with which
class members may be identified,” Laramore v. Ill. Sports Facilities Auth., No. 89 C 1067, 1993
WL 45959, at *3 (N.D. Ill. Feb. 19, 1993), judicial economy, and the financial ability of the
potential class members to bring individual suits, Arenson v. Whitehall Convalescent and Nursing
Home, Inc., 164 F.R.D. 659, 663 (N.D. Ill. 1996) (citing Tenants Associated for a Better
Spaulding v. U.S. Dep’t of Housing and Urban Dev., 97 F.R.D. 726, 729 (N.D. Ill. 1983)).
The Plaintiff emphasizes the financial ability factor, arguing that because every potential
member of the class is disabled and low–income, joinder for these particular class members
would be impracticable for financial reasons. But financial ability is only one factor the Court
must consider. The ease of joining the parties is also a significant factor. Here, the evidence
before the Court suggests a class no more numerous than thirteen, all of whom are known to the
Plaintiff based on discovery materials received. (See Filler Dep. 143; Dep. Ex. 16, ECF No. 39-5.)
If the Plaintiff wishes to join these class members, identifying them should not be burdensome.
Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981) (one important factor
on the numerosity question is “the ease with which class members may be identified”); Andrews
v. Bechtel Power Corp., 780 F.2d 124, 132 (1st Cir. 1985) (“where class members can be easily
identified, joinder is more likely to be practicable”); Laramore, 1993 WL 45959, at *3 (citing
Zeidman). In the present case, the potential class members must either have a legal guardian to
handle their affairs or be capable of deciding for themselves whether to join a lawsuit. If no
guardian existed, then presumably these individuals would be institutionalized instead of
receiving services through the Aged and Disabled Waiver program.
Furthermore, though the potential class members live in different parts of Indiana, the
14
degree of geographic diversity is nowhere near to the geographic diversity that would be present
if they lived all across the country. Compare Allen, 99 F.R.D. at 53 (geographic diversity
controlling when class members lived in seven states and were “scattered throughout the United
States”) and Riordan, 113 F.R.D. at 62 (geographic diversity controlling when class members
lived in nine states) with Winokur v. Bell Fed. Savings & Loan Assn., 1972 WL 123067, at *2
(N.D. Ill. Mar. 27, 1972) (declining to certify a class of 86 when potential class members were
“located within a small geographic area”). Accordingly, the Court finds geographical diversity
not dispositive where potential class members are located in only one state and are easily
identifiable.
The Plaintiff has asserted that “certification would doubtless promote judicial economy”
(Pl.’s Reply in Supp. of Am. Mot. for Class Certification 6), without showing why this is so.
Given the small number of potential class members, a class action may or may not promote
judicial economy in this case. Balancing the administrative requirements of a class action against
the possibility of joining the relatively few known class members, the Court finds that the judicial
economy factor is not dispositive.
Finally, the number of potential class members before the Court is significantly smaller
than in the cases the Plaintiff cites concerning the financial ability factor. The Plaintiff argues that
when the class members are disabled and low-income, their financial status militates strongly for
impracticability of joinder because they are unable to bring individual suits. But the Plaintiff cites
to cases where courts were certifying classes significantly larger than thirteen, and where
financial ability was only one factor to be considered. Arenson, 164 F.R.D. at 663 (certifying
class of at least 159 members, and considering, inter alia, the financial ability of nursing home
15
residents to pursue individual claims); Matyasovszky v. Hous. Auth. of City of Bridgeport, 226
F.R.D. 35, 40–41 (D. Conn. 2005) (certifying class of approximately 197, where members were
“low income, disabled, and in some cases, homeless”); Cortigiano v. Oceanview Manor Home for
Adults, 227 F.R.D. 194, 204–05 (E.D.N.Y. 2005) (certifying class of more than 150, and
considering, inter alia, that the class members may have “inadequate resources to prosecute their
own claims”); Fields v. Maram, No. 04 C 0174, 2004 WL 1879997, at *4 (N.D. Ill. Aug. 17,
2004) (certifying class of at least 200, and perhaps more than 800, and considering, inter alia, that
the potential class members were “disabled and therefore . . . often of limited financial
resources”); Raymond v. Rowland, 220 F.R.D. 173, 179 (D. Conn. 2004) (certifying class in the
thousands, and considering, inter alia, that the potential class members were “by definition
people of limited financial resources”); Tenants Associated, 97 F.R.D. at 729 (certifying class of
at least 26, and considering, inter alia, “the likelihood that the individual plaintiff class members
would be unable, financially or otherwise, to pursue their individual claims”). The Plaintiff’s
cases do not prove, and the Court declines to hold, that in every case where potential class
members are disabled, joinder would therefore be impracticable for financial reasons. The
Plaintiff has cited many cases where the disability and financial wherewithal of the potential class
members was one of several factors used in a determination that a class more numerous than
thirteen should be certified.8 But given the small number of potential class members, the ease of
8
The only case the Plaintiff has cited where financial difficulty of bringing individual lawsuits
was a factor in the numerosity calculus and where the number of potential class members was similar to
the number before the Court is Tenants Associated, 97 F.R.D. at 729 (certifying class of at least 26). But
another factor that the Tenants Associated court found persuasive was the very real possibility that class
members “would be dissuaded from individually pursuing” remedies because of “the possibility of
retribution.” Id. The Plaintiff has not contended, nor is there any reason to conclude, that potential class
members in the matter before the Court would fear retribution by the Indiana Family and Social Services
Administration.
16
identifying the few who fit in the class definition, the degree of geographic diversity, and the lack
of any argument by the Plaintiff concerning judicial economy, the Court finds the Plaintiff has
failed to show why joinder of these few class members would be impracticable in this case.
Accordingly, the Plaintiff has failed to show numerosity.
CONCLUSION AND ORDER
The Plaintiff has not satisfied numerosity under Rule 23(a)(1). Because the Plaintiff has
failed to establish a requisite element under Rule 23, his Amended Motion for Class Certification
[ECF No. 21] is DENIED.
SO ORDERED on September 27, 2011.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION
17
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