HUGHES v. KORE OF INDIANA ENTERPRISE, INC.

Filing 118

ORDER - The Court ORDERS Plaintiff to conduct whatever research is necessary and to provide a report to the Court by June 26, 2013, detailing a plan to either provide individual notice to the class members or to provide relevant legal authority supporting his position that such notice is not required. ***SEE ORDER***. Signed by Judge Jane Magnus-Stinson on 6/10/2013. (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DAVID HUGHES, individually and on behalf of
all other similarly situated,
Plaintiff,
vs.
KORE OF INDIANA ENTERPRISE, INC., et al.,
Defendants.

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1:11-cv-1329-JMS-MJD

ORDER
The parties have filed a joint report, informing the Court that Plaintiff requests that notice
be provided to the class members in three different ways: 1) ATM notice; 2) newspaper notice;
and 3) website notice. [Dkt. 117 at 1.] Defendants object to having notice placed on the ATMs.
[Id.]
This matter was certified as a class action under Federal Rule of Civil Procedure 23(b)(3)
in August 2012. [Dkt. 65 at 2.] Rule 26(c)(2)(B) provides that “the court must direct to class
members the best notice that is practicable under the circumstances, including individual notice
to all members who can be identified through reasonable means.”
“An elementary and fundamental requirement of due process in any proceeding which is
to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections.” Schroeder v. City of New York, 371 U.S. 208, 211 (1962) (holding that newspaper
notice along with posting signs in the vicinity of a landowner’s property still did not satisfy the
requirements of due process). The United States Supreme Court has detailed the importance of
providing individual notice to members of a Rule 23(b)(3) class who can be identified through
reasonable effort, specifically noting that the cost of doing so does not excuse the requirement:
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[I]ndividual notice to identifiable class members is not a discretionary consideration to be waived in a particular case. It is, rather, an unambiguous requirement
of Rule 23. As the Advisory Committee’s Note explained, the Rule was intended
to insure that the judgment, whether favorable or not, would bind all class members who did not request exclusion from the suit. Accordingly, each class member who can be identified through reasonable effort must be notified that he may
request exclusion from the action and thereby preserve his opportunity to press his
claim separately or that he may remain in the class and perhaps participate in the
management of the action. There is nothing in Rule 23 to suggest that the notice
requirements can be tailored to fit the pocketbooks of particular plaintiffs.
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 (1974) (citations omitted). “Plaintiff must bear
the cost of notice to the members of his class.” Id. at 177.
The Court, as the “fiduciary of the class,” is concerned that Plaintiff’s proposed methods
of notice do not comport with the standards set forth above. See Culver v. City of Milwaukee,
277 F.3d 908, 915 (7th Cir. 2002) (noting that the district court has a nondelegable duty to protect the interests of the class, since it is the “fiduciary of the class”). Specifically, the parties
have access to the account numbers of the bank cards that used the ATMs in question during the
class period. It seems likely that through reasonable means, the addresses associated with those
bank cards could be located and notice could be mailed to those addresses, thereby providing
more particularized notice.
For these reasons, the Court ORDERS Plaintiff to conduct whatever research is necessary and to provide a report to the Court by June 26, 2013, detailing a plan to either provide individual notice to the class members or to provide relevant legal authority supporting his position
that such notice is not required.
06/10/2013
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

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Distribution via ECF only:
Eric G. Calhoun
TRAVIS, CALHOUN & CONLON PC
[e-mail]
Ryan R. Frasher
RYAN FRASHER P.C.
[e-mail]
Kevin G. Kerr
HOEPPNER, WAGNER & EVANS LLP--Merrillville
[e-mail]
Thomas Edward Rosta
METZGER ROSTA LLP
[e-mail]
Michael Eugene Tolbert
HOEPPNER, WAGNER & EVANS LLP--Merrillville
[e-mail]

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