WEBSTER et al v. CITY OF NOBLESVILLE et al

Filing 79

ENTRY - DENYING PLAINTIFFS' 54 MOTION FOR CLASS CERTIFICATION. Because Plaintiffs did not meet their burden of showing they are adequate class representatives under Rule 23(a)(4), the Court DENIES Plaintiffs' Motion for Class Certification. (See Entry.) Signed by Judge Tanya Walton Pratt on 2/12/2020. (NAD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WILLIAM J. WEBSTER, JOE DUEPNER, and
)
ANDREW DOLLARD, on behalf of themselves )
and all others similarly situated,
)
)
Plaintiffs,
)
)
v.
)
)
CITY OF NOBLESVILLE,
)
NOBLESVILLE POLICE DEPARTMENT,
)
KEVIN JOWITT, Chief of Police, in his official
)
capacity,
)
JOHN DITSLEAR, Mayor of Noblesville, in his
)
official capacity, and
)
COMMON COUNCIL OF THE CITY OF
)
NOBLESVILLE,
)
)
Defendants.
)

Case No. 1:18-cv-01132-TWP-DLP

ENTRY DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
This matter is before the Court on a Motion for Class Certification filed by Plaintiffs
William J. Webster (“Webster”), Joe Duepner (“Duepner”), and Andrew Dollard (“Dollard”)
(collectively, “Plaintiffs”). (Filing No. 54.) Defendants in this case are the City of Noblesville
(“Noblesville”); Noblesville Police Department; Kevin Jowitt, Chief of Police, in his official
capacity; John Ditslear, Mayor of Noblesville, in his official capacity; and the Common Council
of the City of Noblesville (collectively, “Defendants”). The Plaintiffs filed this action alleging the
Defendants violated their state and federal rights to due process by enforcing a city ordinance that
allowed Noblesville police officers to issue parking tickets but did not provide a means for the
recipients to contest those tickets. Plaintiffs seek to certify a class consisting of all persons who
received a notice of parking violation in Noblesville and paid a fine as a result since 1989. For the
reasons stated below, Plaintiffs’ Motion to Certify Class is denied.

I.
A.

BACKGROUND

Noblesville Traffic Code
In 1989, the town of Noblesville, Indiana enacted Ordinance No. 65-7-89 (“the

Ordinance”), the purpose of which was “regulating traffic upon the public streets and alleys of
[Noblesville] ….”. (Filing No. 55-1.) The Ordinance announced how citizens could lawfully
“stop, stand, or park a vehicle.” Id. at 14. The Ordinance also described how citizens would be
notified of parking violations (via a notice placed on the offending vehicle) and how those
violations would be penalized (a $10.00 fine if paid within one week) . Id. at 19-20.
The traffic regulations originally promulgated by the Ordinance were later codified as the
Noblesville Traffic Code (“NTC”), which currently regulates parking in Noblesville. Noblesville
Code of Ordinances, Title VII, Chapters 70-78. 1 Since 1989, the laws governing parking in
Noblesville have changed. For example, the NTC now includes a schedule of fines, increasing
each week until the parking ticket is paid. 2 Id. at § 70.99(A). The NCT also empowers Noblesville
to attach a “boot” to a car after the owner accumulates enough parking violations, rendering the
car immobile until the owner pays his prior fines and a fee to remove the boot. Id. at § 70.99(A)(3).
However, it was not until May 23, 2018, that Noblesville amended the NTC to establish a
procedure by which an individual can appeal a parking violation and associated fines. (Filing No.
55-2.) Before that date, there was no formal way for a person to challenge a parking violation
charged in Noblesville. Between August 17, 1989 and May 23, 2018, Noblesville handed out
thousands of parking tickets, none of which were appealable.

The Noblesville Code of Ordinances can be found at:
http://library.amlegal.com/nxt/gateway.dll/Indiana/noblesville/cityofnoblesvilleindianacodeofordinances?f=template
s$fn=default.htm$3.0$vid=amlegal:noblesville_in_mc
1

Violators of the parking code owe a fine of $20 dollars, but if that fine goes unpaid after 7 days, the fine rises to $30,
after 14 days it rises to $50, and so on.

2

2

B.

The Proposed Class
Plaintiffs allege the prior lack of appeals process violates the due process clauses of the

United States Constitution and the Indiana Constitution. They seek to certify the following class
under Federal Rule of Civil Procedure 23:
All those who received a notice of parking violation in the City of Noblesville
between August 17, 1989 and May 23, 2018 and, as a result of their receipt of said
notice, paid any monetary fines (the fine for an alleged parking violation, late fees,
wheel boot fees, towing fees, and/or storage costs) and/or were deprived of the use
of their vehicle due to the application of a wheel boot or seizure by towing.
(Filing No. 54.) Plaintiffs also move to be appointed as Representatives of the Class and to have
their counsel, Wagner Reese, LLP, appointed as Class Counsel. Id.
C.

The Plaintiffs
The three Plaintiffs are attorneys working in Hamilton County, Indiana who have received

notice of parking violations from Noblesville dating back at least 22 years. During work hours,
Plaintiffs often used two-hour street parking and attempted to move their cars every two hours
before Noblesville ticketed them. (Filing No. 67-1 at 3-5; Filing No. 67-3 at 21.) This strategy
resulted in many parking tickets, often for “overtime” parking, (Filing No. 67-8), but sometimes
for other reasons such as “improper parking to curb.” (Filing No. 67-4.) The Court will detail
each Plaintiff’s parking history individually.
1.

Plaintiff Andrew Dollard

Dollard estimates that he has received hundreds of parking tickets over the last 22 years.
(Filing No. 67-1 at 6.) He had no need to dispute roughly 98% of these tickets because he admits
that he violated parking laws. Id. at 7. Dollard estimates that nine out of every ten tickets he
received was for parking in a two-hour spot for longer than two hours. Id. at 10. On at least two
occasions, Dollard took his parking tickets to the former City Court judge in Noblesville, explained

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that the tickets were frivolous, and was told by the judge not to worry about paying the tickets. Id.
at 8. He also, fewer than ten times, took his tickets to the Noblesville Police Department to
complain about them. Id. at 9. The Noblesville Police Department never voided his tickets, but
officers would hear him out and would allow him to speak with the parking enforcement officer
who issued the ticket if he or she was available. Id. at 11-12.
One ticket Dollard received, for “improper parking to curb” on March 7, 2018, is attached
to Plaintiffs’ Complaint. (Filing No. 1-2 at 80.) The ticket was placed on the Black Mercedes that
Dollard was driving, but Dollard is not the registered owner of that Mercedes. (Filing No. 67-5.)
Dollard believed he was within a foot of the curb 3 and testified at his deposition that he would
have challenged the ticket if there had been a formal way to do so. (Filing No. 67-1 at 27.) At the
time of his deposition, Dollard had not paid the fine associated with this ticket. Id. More recently,
Dollard received a ticket after parking his father’s truck in downtown Noblesville. Id. at 31-32.
He did not believe, at the time of his deposition, that the ticket had been paid or that Noblesville
attempted to collect the associated fine. Id.
2.

Plaintiff Joe Duepner

Like Dollard, Duepner is an attorney who works in downtown Noblesville and frequently
uses two-hour street parking during the workday.

Duepner estimated he has received

approximately 50 parking tickets in Noblesville. (Filing No. 67-3 at 7.) Also like Dollard, he has
received many tickets which he did not contest if there were a process to do so. Id. at 9. Duepner
twice attempted to dispute a parking ticket by talking to the Noblesville Police Department. Id. at
12. In both cases the parking enforcement officer listened to his defense to the ticket but
nevertheless told him he needed to pay the fine. Id. Four of Duepner’s tickets are attached to the
Ind. Code § 9-21-16-7 requires drivers parking parallel to the curb to be “parked with the right-hand wheels of the
vehicle parallel with and within twelve (12) inches of the right-hand curb.”
3

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Complaint. (Filing No. 1-2 at 76-79.) All four were issued for “overtime” parking between
February and September of 2016. Id.
3.

Plaintiff William Webster

Vehicles registered to Webster are associated with a least 37 parking tickets issued by
Noblesville since October 2014. (Filing No. 67-7; Filing No. 67-6 at 3.) Some of these tickets
would not have been worth his time to contest, were there a means to do so, but other tickets he
would have challenged. (Filing No. 67-2 at 8.) Webster testified at his deposition that he has
attempted to dispute some tickets with the Noblesville Police Department but could not recall
which specific tickets. Id. at 9. Five of his tickets are attached to the Complaint. (Filing No. 1-2
at 71-75.) Four tickets are for “overtime” parking and the fifth is for an expired meter. Webster
could not recall any specific grounds he would have had for disputing these five tickets, were there
a way to do so. (Filing No. 67-2 at 10-24.)
Webster testified at his deposition that a parking restraint device, or “boot” was attached
to his truck on January 18, 2017. Id. at 29. An immobilization notice was attached to his truck
which indicated that he had unpaid parking tickets. Id. at 30-31. Webster testified that he was
about to leave for an appointment with a potential client but, as a result of the booting, he had to
miss that meeting. Id. at 32-33. He testified that he believes the client ended up hiring a different
attorney. Id. at 34-35. Between March 23, 2016 and March 23, 2018, a total of 15 parking boots
were applied by the Noblesville Police Department to vehicles in Noblesville, and 12 citizens
(including Webster) paid for removal of the 14 boots. (Filing No. 67-6.)
D.

The Defendants
The Defendants are all people or governmental bodies that have some connection to

writing, enacting, or enforcing the NTC. Defendant Common Council of the City of Noblesville

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(“the Council”) was responsible for adopting ordinances governing Noblesville, including those
regulating vehicular parking. Noblesville Code of Ordinances § 32.01. The Council created
Noblesville’s Traffic Commission—which included Defendant Mayor John Ditslear—and
charged it with a duty to “recommend to the [Council] and to the traffic engineer, the chief of the
traffic division and other city officials ways and means for improving traffic conditions and the
administration and enforcement of traffic regulations.” Id. at §§ 35.17-35.18. The Council
required that “prior to … adoption of an ordinance concerning traffic control by the City Council,”
Noblesville’s Traffic Committee was to submit a “report, study, investigation, and
recommendation to the responsible body.” Id. at § 70.18. The NTC required Noblesville’s Police
Chief and Police Officers to “enforce the street traffic regulations of [Noblesville]; … to direct
other officers of [Noblesville] in the administration of traffic laws; … and to carry out those duties
specifically imposed upon said office by [the NTC].” Id. at § 70.16.
II.

LEGAL STANDARD

To certify a plaintiff class under Federal Rule of Civil Procedure 23, the Plaintiffs must
first satisfy all four elements of Rule 23(a) by demonstrating that: (1) the class is too numerous to
join all members; (2) there are questions of law or fact common to the class; (3) the claims or
defenses of representative parties are typical of those of the class members; and (4) the
representative parties will fairly and adequately represent the class. As the Seventh Circuit has
noted, plaintiffs must satisfy the trial court, “after a rigorous analysis,” that the prerequisites of
Rule 23(a) have been satisfied. Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir. 2003) (quoting
General Tel. Co. of S.W. v. Falcon, 475 U.S. 147, 160-61 (1982)). If these requirements are met,
plaintiffs must also satisfy at least one subsection of Rule 23(b).

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Rule 23(b)(1) provides for a non-opt-out class action where individual actions could
“‘establish incompatible standards of conduct for the party opposing the class’” or “[ ] ‘would be
dispositive of the interests of the other members not parties to the individual adjudications.’”
Spano v. Boeing Co., 294 F.R.D. 114, 119 (S.D. Ill. 2013) (quoting Fed. R. Civ. P. 23(b)(1)). Rule
23(b)(3) applies if 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.” Fed.
R. Civ. P. 23(b)(3).
The party seeking class certification bears the burden of proof in establishing each of the
requirements under Rule 23. Susman v. Lincoln Am. Corp., 561 F.2d 86, 90 (7th Cir. 1977). The
failure to satisfy any one of these elements precludes certification. Retired Chi. Police Ass’n v.
City of Chi., 7 F.2d 584, 596 (7th Cir. 1993). In deciding whether to certify a class, the court is
not required to accept the allegations in the complaint as true. The court should make any factual
and legal inquiries needed to ensure that the requirements for class certification are satisfied, even
if the underlying considerations overlap with the merits of the case. Szabo v. Bridgeport Machines,
Inc., 249 F.3d 672, 676 (7th Cir. 2001); In re Bromine Antitrust Litigation, 203 F.R.D. 403, 407
(S.D. Ind. 2001). In evaluating class certification, the court must take into consideration the
substantive elements of plaintiff’s cause of action, inquire into the proof necessary for the various
elements, and envision the form that trial on the issues would take. Cima v. WellPoint Health
Networks, Inc., 250 F.R.D. 374, 377 (S.D. Ill. 2008).
Throughout this analysis, the court bears in mind that a principal purpose of class
certification is to save the resources of both the courts and the parties by permitting an issue
potentially affecting every class member to be litigated in an economical manner. See Falcon, 457

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U.S. at 155. In doing so, Rule 23 gives the district courts “broad discretion to determine whether
certification of a class-action lawsuit is appropriate.” Arreola v. Godinez, 546 F.3d 788, 794 (7th
Cir. 2008) (internal quotations omitted). That said, “similarities of claims and situations must be
demonstrated rather than assumed.” Szabo, 249 F.3d at 677. “The propriety of class treatment
thus will turn on the circumstances of each case.” Spano v. The Boeing Co., 33 F.3d 574, 582 (7th
Cir. 2011).
III.

DISCUSSION

As stated earlier, Plaintiffs move to certify the following class:
All those who received a notice of parking violation in the City of Noblesville
between August 17, 1989 and May 23, 2018 and, as a result of their receipt of said
notice, paid any monetary fines (the fine for an alleged parking violation, late fees,
wheel boot fees, towing fees, and/or storage costs) and/or were deprived of the use
of their vehicle due to the application of a wheel boot or seizure by towing.
(Filing No. 54.) They argue this class satisfies the requirements of Rule 23. Defendants respond
that the proposed class is not ascertainable because an individualized inquiry must be made to
determine whether each class member has standing. (Filing No. 66 at 12.) The Court will first
address that preliminary argument and then address each Rule 23 requirement for certification.
A.

Standing
“A class must not be defined so broadly that it includes persons who have not suffered

injury, for ‘the description must not be so broad as to include individuals who are without standing
to maintain the action on their own behalf.’” Does v. City of Indianapolis, No. 1:06-cv-865-RLYWTL, 2006 WL 3365672 at *2 (S.D. Ind. Nov. 20, 2006) (citing Oshana v. Coca-Cola, 225 F.R.D.
575, 580 (N.D. Ill. 2005)). Citing Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2019), Defendants
argue that an allegation of “a bare procedural violation” does not confer Article III standing on a
plaintiff. By this logic, Defendants argue the class cannot be ascertained because it is limited to

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those who would have had a factual basis to challenge their parking ticket. (Filing No. 66 at 18.)
To determine standing would require an individualized inquiry into each putative class member,
Defendants argue, and thus a class action is not practicable.
Defendants’ argument, as the Seventh Circuit has noted, puts “the cart before the horse” in
a way that would “vitiate the economies of the class action procedure.” Kohen v. Pac. Inv.
Management Co. LLC, 571 F.3d 672, 676 (7th Cir. 2009). The effect of inquiring at this stage
which class members have standing would allow the trial to precede the certification. Id. As long
as one member of a certified class has a plausible claim to have suffered damages, the requirement
of standing is satisfied. United States Parole Commission v. Geraghty, 445 U.S. 388, 404 (1980);
Wiesmueller v. Kosobucki, 513 F.3d 784, 785-86 (7th Cir. 2008). Even if the named plaintiff lacks
standing, he might still be able to continue as class representative until a more suitable member of
the class was found to replace him. Id. at 786.
Here, it is clear that at least one named plaintiff has standing. All three Plaintiffs received
parking tickets from Noblesville, some of which are attached to their complaint. All three
Plaintiffs testified in their depositions that they would have disputed some of their parking tickets
if given the opportunity. And, despite Noblesville offering no formal means to dispute those
tickets, Plaintiffs Dollard and Duepner actually did attempt to dispute them to city officials. (Filing
No. 67-1 at 6; Filing No. 67-3 at 12.) Defendants argue that Dollard does not have standing
because he was not the registered owner of the car that was ticketed and because he did not pay
the ticket he would have challenged. (Filing No. 66 at 17.) They also argue that Duepner and
Webster lack standing because they did not have factual reasons to dispute their tickets, only
procedural reasons. Id. at 18. This assertion is contradicted by the deposition testimony of both
Duepner and Webster, who said that they would have challenged some of their tickets, were there

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a means to do so, and Duepner’s assertion at his deposition that he did go complain about tickets
on two occasions to the Noblesville Police Department. (Filing No. 67-3 at 12.)
Plaintiff’s proposed class is ascertainable because it is not vague nor is it based on
subjective criteria. It identifies a group of individuals (those who received a notice of parking
violation) harmed in a certain way (paid fines or were deprived the use of their vehicle) during a
specific period (August 17, 1989 through May 23, 2018) in a particular area (Noblesville). Even
under the strictest interpretation of Spokeo, Duepner and Webster have standing to challenge the
constitutionality of the NTC because they would have attempted or did attempt to challenge
parking tickets. The Court rejects Defendants’ argument that it should not certify the class because
the class is not ascertainable or the putative class members lack standing.
B.

Numerosity
Rule 23(a)(1) provides that the class must be so “numerous that joinder of all the members

is impracticable.” Fed. R. Civ. P. 23(a)(1). “Generally, where the membership of the proposed
class is at least 40, joinder is impracticable and the numerosity requirement is met.” Gentry v.
Floyd Cty., 313 F.R.D. 72, 77 (S.D. Ind. 2016), on reconsideration in part, No. 4:14-CV-00054RLY-TAB, 2016 WL 4088748 (S.D. Ind. July 25, 2016) (citation omitted). Defendants argue the
exact number of members in the putative class is unknown, but the limited material they have
received in discovery indicates the number of people who received a notice of parking violation
between January 1, 2016 and May 23, 2018 is at least 955. (Filing No. 55-5.) Given that the
proposed class goes back to 1989, the real number of class members would likely be greater than
that by hundreds or thousands of people. Defendants do not challenge numerosity as to the class
of individuals that have received parking tickets alone. In other words, Defendants only challenge
numerosity as to the class of individuals who have had a boot placed on their car. Because

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Plaintiffs’ Motion fails on a different prong of Rule 23, the Court need not address Defendants’
argument about the putative class members who had a boot placed on their car.
C.

Commonality
Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” Fed.

R. Civ. P. 23(a)(2). “[A] common nucleus of operative fact is usually enough to satisfy the
commonality requirement.” Spano, 294 F.R.D. at 120 (S.D. Ill. 2013). “A common nucleus of
operative facts exists where ‘defendants have engaged in standardized conduct towards members
of the proposed class.’” Gentry, 313 F.R.D. at 77-78 (S.D. Ind. 2016) (quoting Keele v. Wexler,
149 F.3d 589, 594 (7th Cir. 1998)). Courts in the Seventh Circuit have found claims based on the
constitutionality of a parking ordinance or the standardized conduct of a city enforcing that
ordinance to satisfy the commonality requirement of Rule 23(a)(2). See Van Harken v. City of
Chi., 906 F.Supp. 1182, 1186 (N.D. Ill. 1995), affirmed as modified by Van Harken v. City of Chi.,
103 F.3d 1346 (7th Cir. 1997); Robledo v. City of Chi., 444 F.Supp.2d 895, 907 (N.D. Ill. 2006).
Plaintiffs argue that commonality is satisfied here because “each class member’s claim
arises from the uniform application of the NTC” and “each and every class member shares the
very same legal claims.” (Filing No. 55 at 12.) Defendants respond that a broad allegation that
all class members have suffered a violation of due process rights is insufficient to satisfy the rule’s
commonality requirement. (Filing No. 66 at 25-26.) Additionally, Defendants argue that there is
no commonality amongst damages. Id. at 26. Some class members may not have damages because
they could not have successfully challenged their parking violation, while other class members
may have incurred late fees for not paying their fine, and those fees would be included in any
damages claim they have. Id.

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Defendants’ argument misapplies Rule 23’s commonality requirement. The requirement
is that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The
critical point, as the Seventh Circuit has said, is “the need for conduct common to the members of
the class.” In re IKO Roofing Shingle Products Liability Litigation, 757 F.3d 599, 602 (7th Cir.
2014). Commonality of damages is not an element of Rule 23(a)(2) and treating it as such would
render “class actions about consumer products … impossible.” Id. Different damages are only
relevant to a Rule 23(a)(2) inquiry if they stem from different underlying conduct. Id. Here, the
underlying conduct is the same for every member of the putative class. Plaintiffs allege that every
class member was given a notice of parking violation they had no opportunity to challenge or that
a boot was attached to their car and they were unable to challenge the fees associated with that.
The question of whether Noblesville’s ordinance afforded citizens of Noblesville their
constitutional right to due process is common to all members of the putative class. Thus, Rule
23(a)(2)’s commonality requirement is met in this case.
D.

Typicality
Typicality is closely related to commonality. Spano, 294 F.R.D. at 120. “The typicality

requirement is ‘meant to ensure the named representative’s claims have the same essential
characteristics as the claims of the class at large.’” Id. (quoting Oshana, 472 F.3d at 514). A claim
is typical if it arises from the same event, practice or course of conduct that gives rise to the claims
of other class members and the class representatives’ claims are based on the same legal theory
and are subject to the same defenses. Oshana at 514.
Defendants argue that the class representatives are not typical of the class. (Filing No. 66
at 30.) They point out that Dollard was not the registered owner of the vehicle he parked when he
received his parking ticket, and that he never paid that ticket. Id. They argue that Webster is the

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only named plaintiff who could represent the class members who have had a boot attached to their
vehicle, and that none of the named plaintiffs had his vehicle towed. Id. And Defendants reiterate
their argument, which the Court has rejected, that Duepner did not have a factual basis to dispute
any of the tickets he received. Id.
Each of these arguments ignore the standard for typicality under Rule 23, which aims to
ensure the class representative’s claims have the same “essential characteristics” of the class.
Spano, 294 F.R.D. at 120 (internal quotation omitted). The essential characteristics of Plaintiffs’
claims are a negative action taken by Noblesville or city officials under the NTC, an inability to
challenge that action, and damages. The named Plaintiffs are typical of the putative class because
their claims arise from the same conduct or practice of the Defendants and those claims are based
on the same legal theory and subject to the same defenses. Plaintiffs satisfy Rule 23(a)’s typicality
requirement.
E.

Adequacy
The last requirement of Rule 23(a) is that “the representative parties will fairly and

adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “[T]here is a constitutional
dimension to this part of the inquiry: absentee members of a class will not be bound by the final
result if they were represented by someone who had a conflict of interest with them or who was
otherwise inadequate.” Spano, 633 F.2d at 586-87. The adequacy standard has two elements: (1)
the plaintiffs must be qualified, experienced, and able to conduct the proposed litigation, and (2)
the plaintiffs must not have interests conflicting with those of the putative class. Susman v. Lincoln
Am. Corp., 561 F.2d 86, 90 (7th Cir. 1977).
Defendants challenge various Plaintiffs’ adequacy to serve as class representative on four
grounds. First, they argue that “Webster previously represented the three named Plaintiffs in this

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matter and may have a conflicting interest in securing a fee award for his firm’s previous work on
this case.” (Filing No. 66 at 32.) Second, the large number of tickets received and paid by the
named Plaintiffs give them different incentives than the average class member, who likely received
a handful of tickets at most. Id. Third, Dollard testified at his deposition that he did not know
what his duties as a class representative were and that he had thrown away a ticket he claims in
this case. (Filing No. 67-1 at 30.) And last, Defendants argue that they have “a unique defense to
all three Plaintiffs in this case in that they have failed to timely assert their rights after becoming
aware of the facts giving rise to their cause of action in 2013.” (Filing No. 66 at 33.)
Of these four issues Defendants raise, the Court is primarily concerned with the first,
although it is scarcely mentioned in the briefing. Defendants suggest that Webster, as former
counsel in this case, has interests conflicting with those of the class because of his incentive to win
a high fee for class counsel. They cite no cases in support of this contention. Plaintiffs offer a
response which, likewise, comes with no citations to caselaw:
Nor does Mr. Webster’s prior service as counsel of record create a conflict with the
putative class. The Court, as opposed to the representative Plaintiffs will ultimately
determine what, if any, attorneys’ fees are awarded in this matter and to whom. Mr.
Webster’s prior representation of the named Plaintiffs is therefore irrelevant to a
determination of whether he is appropriate representative of the class.
(Filing No. 73 at 15-16.) After reviewing caselaw, the Court disagrees with Plaintiffs’ response
and finds Webster’s prior involvement as counsel in this case highly relevant to his adequacy as a
class representative.
The Seventh Circuit has said that “[i]f the interests of a class are to be fairly and adequately
protected, if the courts and the public are to be free of manufactured litigation, and if proceedings
are to be without cloud, the roles of class representative and class attorney cannot be played by the
same person.” Susman v. Lincoln American Corp., 561 F.2d 86, 94-95. In Susman, the Court of

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Appeals explicitly rejected the argument that Plaintiffs make here—that the Court’s supervision
of any award and corresponding attorney fee obviate the need to enforce Rule 23(a)(4). Id. at 95
(“We do not accept under the circumstances of this case plaintiffs’ argument that reliance on the
court’s control of settlement and attorney’s fees renders strict enforcement of the requirements of
Rule 23(a)(4) unnecessary.”) Susman establishes that it is generally improper for an attorney to
act both as class counsel and class representative.
Distinguishing Webster’s situation from Susman is the fact that he does not seek to act as
class counsel going forward. Webster and his firm, Webster Legal, LLC 4, were Plaintiffs’ counsel
when this case was removed to this Court on April 13, 2018. (Filing No. 1.) He and his associates
worked on this case for nearly a year, but on March 5, 2019, approximately two weeks before
Plaintiffs filed this Motion to Certify Class, Webster and his associates moved to substitute
attorney (Filing No. 47), which the Court granted (Filing No. 50). Neither Webster nor anyone
from his law firm appears on this case, but they did nearly a year’s worth of work on the case. 5
Despite that fact, the Court finds that Webster cannot adequately represent the members of
the putative class because his interest in the attorneys’ fees conflicts with the interest a
representative must have in the ultimate class award. Plaintiffs’ reply brief does not contest that
Webster stands to receive a share of whatever attorneys’ fees may be awarded in this case. (Filing
No. 73 at 15-16.) Because Webster’s interest in obtaining a high attorneys’ fee may be antagonistic
to the class, he is disqualified as a class representative.

4
In other filings the firm is known as Webster and Garino, LLC. The Court assumes the firm changed its name at
some point. For sake of clarity, the Court will refer to Webster’s law practice as “Webster Legal, LLC.”

Plaintiffs’ counsel is currently Stephen M. Wagner and Timothy L. Karns of Wagner Reese, LLP. (Filing No. 45;
Filing No. 46.) Defendants do not challenge the adequacy of those attorneys.
5

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The Court’s inquiry on this issue does not end there; questions remain as to whether
Duepner and Dollard are adequate representatives of the class. The Seventh Circuit has said
plainly that it is improper for class counsel to serve as a class representative, but it has gone beyond
that, declaring that consensus among lower courts is that neither “class attorneys, their relatives,
or business associates” should act as class representative. Susman at 95. That is because even if
the plaintiff does not expect to share in the attorneys’ fees, “there exists a possibility that one so
situated will become more interested in maximizing ‘return’ to his counsel than in aggressively
presenting the proposed class action.” Id. (quoting the District Court). That sentiment has led
courts in the Seventh Circuit to find the following relationships improper under Rule 23(a)(4): (1)
one named plaintiff was class counsel’s father-in-law, Eubank v. Pella Corp., 753 F.3d 718 (7th
Cir. 2014); (2) two named plaintiffs were personal stockbrokers of class counsel, In re Discovery
Zone Securities Litigation, 169 F.R.D. 104, 109 (N.D. Ill. 1996); (3) a named plaintiff was cocounsel with the class counsel law firm on twenty-five pending cases, Jaroslawicz v. Safety Kleen
Corp., 151 F.R.D. 324 (N.D. Ill. 1993); and (4) one named plaintiff was class counsel’s brother
and another was a member of class counsel’s law firm, Mowry v. JP Morgan Chase Bank, 2007
WL 1772142 (N.D. Ill. June 19, 2007). The Court recognizes that other cases have examined close
relationships between class counsel and class representatives and found that they did not violate
Rule 23(a)(4). In re Southwest Airlines Voucher Litigation, 799 F.3d 701 (7th Cir. 2015); CE
Design v. Beaty Const., Inc., 2009 WL 192481 (N.D. Ill. January 26, 2009). However, in CE
Design, the Seventh Circuit said that class counsel, who was co-counsel with the named plaintiff
in an unrelated matter, had a potential conflict that should have been disclosed. 799 F.3d at 71516. The Court upheld the adequacy of the class based on a different representative plaintiff.
Because of the undisclosed conflict of interest, the Court stripped the conflicted class

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representative of his $15,000.00 incentive award and reduced class counsel’s fee by the same
amount.
Webster, Duepner, and Dollard are all Noblesville attorneys who at one point—circa 2013,
perhaps—had offices in the same building. (Filing No. 67-1 at 35.) The Seventh Circuit has
affirmed a district court that found adequacy lacking where class counsel rented office space from
the named plaintiffs—a law firm—and shared that office space. Susman, 561 F.2d at 95. “The
fact that an individual rents office space from a law firm does not by itself render a member of that
firm or a relative of a member of that firm an inadequate class representative.” Id. Accordingly,
the Seventh Circuit instructs lower courts to evaluate such circumstances on a case-by-case basis.
Here, there is scant evidence in the record that would illuminate Duepner’s and Dollard’s
relationship to Webster. The three men merely shared an office building approximately seven
years ago. As far as the Court knows, neither Duepner nor Dollard have ever acted as co-counsel
with Webster in a different matter. The Court does not have enough information to form an opinion
on whether Duepner or Dollard have an interest in the fees class counsel—including Webster—
will ultimately receive in this case.
Still, the dearth of evidence weighs against Plaintiffs, who bear the burden of proof in
establishing each of the requirements under Rule 23. Id. at 90. The failure to satisfy any one of
these elements precludes certification. Retired Chi. Police Ass’n, 7 F.2d at 596. Moreover, the
Seventh Circuit has said that adequacy can be defeated by “even an appearance of improper
conflict of interest.” Susman at 91. Irrespective of Duepner’s and Dollard’s actual interest in the
attorneys’ fees in this case, the longstanding relationship of Duepner, Dollard, and Webster gives
this case “the appearance of manufactured litigation.” Jaroslawicz, 151 F.R.D. at 330 (omitting
quotations).

Because Duepner’s and Dollard’s posture as class representatives creates an

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impression of impropriety, and because Plaintiffs have failed to meet their burden of showing they
are adequate class representatives under Rule 23(a)(4), Duepner and Dollard are disqualified as
class representatives.
Having determined that none of the named Plaintiffs satisfy Rule 23(a)(4)’s adequacy
requirement, the Court must deny Plaintiffs’ Motion for Class Certification.
As the issue of adequacy is dispositive, the Court need not address the issue of
predominance or any statute of limitations concerns raised by Defendants.
IV.

CONCLUSION

Because Plaintiffs did not meet their burden of showing they are adequate class
representatives under Rule 23(a)(4), the Court DENIES Plaintiffs’ Motion for Class Certification.
SO ORDERED.
Date: __2/12/2020____________
DISTRIBUTION:
Timothy Loren Karns
WAGNER REESE LLP
[e-mail]
Stephen M. Wagner
WAGNER REESE LLP
[e-mail]
Adam Spencer Ira
KIGHTLINGER & GRAY - Evansville
[e-mail]
Robert M. Kelso
KIGHTLINGER & GRAY, LLP (Indianapolis)
[e-mail]

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