Henke et al v. Wiltel Communications, L.L.C. et al

Filing 155

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion for Class Certification, [Doc. 98], is DENIED. 98 Signed by District Judge Henry E. Autrey on 3/12/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GLENN A. HENKE and LINDA KLUNER
INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,
v.
ARCO MIDCON, L.L.C., MAGELLAN
PIPELINE COMPANY, L.P., and
WILTEL COMMUNICATIONS, L.L.C.,
Defendants.

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) Case No. 4:10CV86 HEA
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OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Class Certification
[Doc. No. 98]. A Class Certification Hearing has been conducted in the matter
and the motion has been briefed and argued. For the reasons set forth below, the
Motion for Class Certification is denied.
FACTS AND BACKGROUND
The following facts are taken from the Plaintiffs’ complaint, as well as the
affidavits and other evidence submitted by the parties in briefing the motion for
class certification.
Plaintiffs bring this putative class action seeking recovery for damages to
property that Plaintiffs allege they and the putative class members incurred as a

result of Defendants’ ownership, maintenance and control of a pipeline and
easement on or beside the properties.
The pipeline is a segment of a former petroleum pipeline owned by a
predecessor of Defendant ARCO Midcon, LLC – ARCO Pipeline Company –
from 1950 to 1994. The segment runs from Mexico, Missouri to Wood River,
Illinois1
Over several decades, the pipeline was laid, repaired, reconditioned,
mothballed, and ultimately converted to a conduit for telecommunications cable.
ARCO Pipeline Company operated the pipeline as a petroleum pipeline for
decades until 1990, when it began the process of packing and purging it, i.e.,
mothballing the pipeline, by removing all petroleum products and pressurizing it
with nitrogen. After the pipeline was mothballed, a process that was completed by
the end of 1990, it was never again used to transport petroleum products. In 1994,
ARCO sold the pipeline to Williams Pipe Line Company, n/k/a Defendant
Magellan, as part of a larger transaction involving other pipeline segments.
Beginning in 1999, the pipeline segment was prepared for and ultimately had fiber
optic cable installed in it. In 2001, the pipeline segment was sold to Defendant

1

By their Motion to Amend By Interlineation, Plaintiffs have their limited
their claim to this segment of the pipeline.
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WilTel, a telecommunications company that currently uses the pipeline to house
its fiber optic network. WilTel acquired communication rights from all of the
landowners along the segment.
The 1994 “Pipeline Sale and Purchase Agreement Between ARCO Pipe
Line Company and Williams Pipe Line Company” (“the PSA,”) contained an
exhibit titled: “ARCO Pipe Line Company – Products Spills for Assets Being Sold
To Williams – APL Retained Environmental Liabilities – Exhibit 10.4.” Exhibit
10.4 is a list of remediated leaks for which ARCO agreed to retain liability. It lists
leaks by pipeline segment, including segments which are not part of Plaintiffs’
allegations. It was compiled by ARCO’s Safety, Health, and Environmental
Protection group (“SHEP”) and identifies a list of prior leaks known to the seller,
ARCO, for which ARCO agreed to remain responsible. Exhibit 10.4 does not
indicate specific property locations for the identified leaks. For example, a typical
entry under the column “Name of Line, Nearest Town, County,” would be “Wood
River to Mexico 8”, 4 Miles East of Peruque, MO, St. Charles County.”
Plaintiffs Glenn A. Henke and Linda Kluner together own a tract of land
along the pipeline. They allege that there is contamination on their property. There
are several additional active and inactive petroleum pipelines that run across the
Plaintiffs’ property. Plaintiffs’ experts indicate there is some contamination on
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Plaintiffs’ property, but do not opine as to its source or the extent – specifically
they do not offer any opinion that this contamination came from the old ARCO
pipeline.
Plaintiffs’ experts do not provide evidence of contamination at any other
property in Missouri along the old ARCO pipeline other than Plaintiffs’ property
and one other parcel.2
Defendant ARCO contends that it monitored its pipeline for spills and leaks.
Plaintiffs claim that widespread contamination from this pipeline presently
exists. This claim is primarily based on internal documentation from ARCO that
Plaintiffs claim demonstrates the existence of past leaks.
The 1994 PSA between ARCO and Williams and its Exhibit 10.4 lists past
leaks that Defendants assert were remediated. ARCO represented and warranted
to Williams at the time of sale that it was a complete and accurate list of past leaks
that had been remediated. ARCO was aware of all the releases on Exhibit 10.4
and represented in the Pipeline Purchase and Sale Agreement that it had complied

2

Since the sale of the old ARCO pipeline from ARCO to Williams in 1994,
there has been one lawsuit by another landowner claiming contamination from the
old ARCO pipeline. These landowners are neither plaintiffs nor putative class
members here, and the associated litigation did not result in a judicial
determination of the source of any contamination on the property.
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with and was operating the old ARCO pipeline within all the necessary laws and
regulations. Plaintiffs have not yet identified any duty or regulatory requirement
that Defendants keep records of how leaks were addressed and cleaned up, and
Defendants maintain that not even current operators are required to do so.
Exhibit 10.4 itself is not a leak report – it is a summary list of leaks. Exhibit 10.4
contains several column headings, including: “Report No.,” “Leak Date,” “Name
of Line, Nearest Town, County,” “Product,” “Leak Cause,” “Bbls Out,” and “Bbls
Rec.” The column heading “Report No.” gives the corresponding break and leak
report numbers. For additional information, one would need to look at the
corresponding break and leak report with that number. Plaintiffs’ experts reported
that they were shown examples of break and leak reports. Former ARCO
employee Mr. Dooley identified six break and leak reports prepared by him. These
leak reports contain information more specific than Exhibit 10.4 about where the
leak occurred, when, and what was done to repair the leak and clean it up. The
information on these six break and leak reports corresponds to six entries on
Exhibit 10.4 and can be identified by matching the report number from the lefthand column on Exhibit10.4 to the report number on the upper right corner of the
break and leak report.
Other records referenced by Plaintiffs include several separate form
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documents which in some instances indicate that they are for settlement in full for
all damages to the real and personal property of undersigned, or similar language.
Other documents state that they are for damages caused by repairing,
reconditioning, relaying, and the like.
ARCO (and prior operators) generated leak reports and maintenance reports
related to the cleanup of a leak or spill from the pipeline. The “break and leak”
reports were an initial report on a leak. Maintenance reports were follow-up
reports reflecting additional activity such as replacing pipeline, repairing pipeline,
excavation, removal of petroleum products, etc. Plaintiffs define their proposed
classes based on the non-existence of “break and leak” reports for property with a
leak or spill record. Plaintiffs exclude those properties for which a “break and
leak” report has been produced from their proposed classes. Defendants assert
that Exhibit 10.4 shows that these records were generated and did exist, for it was
assembled from “break and leak” reports: the column heading “Report No.”
corresponds to specific break and leak report numbers.
The petroleum industry is a highly regulated industry. The Department of
Transportation requires operators of petroleum pipelines to keep ten types of
records. As ARCO’s expert Mesavage observed, the recordkeeping and document
retention requirements set forth in 49 CFR 195 were all promulgated after 1980.
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Defendants assert that these document retention requirements do not include any
requirement to retain cleanup or remediation records from prior pipeline leaks.
Defendants note all of these requirements are directed to the operator of a pipeline.
Neither WilTel nor Magellan was ever an “operator” of the old ARCO pipeline –
that is, they never operated the pipeline to transport petroleum. Thus, according to
WilTel and Magellan, they could not have generated such records – and were not
required to keep them even if they came into possession of them.
The absence of documents, Defendants maintain, is not unusual given the
long time spans involved, the differences in documentation standards, the
relocation of records, the changes in ownership, and the resulting loss and damage
to records that occurs as a result of these factors.
Count I of Plaintiffs’ Amended Complaint is brought under a theory of
nuisance against ARCO only. Count II is brought against all Defendants for
trespass; Count III, against all Defendants for alleged negligence; and Count VI
against WilTel only for breach of contract.
Plaintiffs seek to bring these claims as a class action, proposing the following
class definitions, in pertinent part:
a. Regarding Counts I, II, and III:
All persons who currently own property on which there is a record
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indicating that there is a leak or spill of petroleum products or other
pollutants or chemicals from the Eastern Segment of the “Pipeline”
and for which there is no break and leak report identifying
remediation. The Eastern Segment of the “Pipeline” is defined as the
portion from Mexico, Missouri to the Missouri-Illinois border, near
West Alton, Missouri.
b. Regarding Count VI:
All persons who contracted with or whose predecessors in land
ownership contracted with Williams Communications (n/k/a Wiltel)
by signing a copy of the “Right of Way and Easement Agreement”
attached to this Complaint as Exhibit 2000, who currently own property on which
there is a record indicating that there is a leak or spill of petroleum products or
other pollutants or chemicals from the Eastern Segment of the “Pipeline” and for
which there is no break and leak report identifying remediation. The Eastern
Segment of the “Pipeline” is defined as the portion from Mexico, Missouri to the
Missouri-Illinois border, near West Alton, Missouri. […]
Based on these proposed definitions, Plaintiffs ask this Court to certify a
“testing class” under Rule 23(b)(2); a “liability class” under Rule 23(b)(3); or
alternatively an “issue class” under Rule 23(c)(4).
CLASS CERTIFICATION STANDARD
Under the Federal Rules of Civil Procedure, “[o]ne or more members of a
class may sue or be sued as representative parties on behalf of all members only 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

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representative parties will fairly and adequately protect the interests of the class.”
Fed.R.Civ.P. 23(a). The four Rule 23(a) requirements applicable to all class
actions are more commonly referred to as: (1) numerosity (a class so large that
joinder of all members is impracticable); (2) commonality (questions of law or fact
common to the class); (3) typicality (named parties' claims or defenses are typical
of the class); and (4) adequacy of representation (representatives will fairly and
adequately protect the interests of the class). Amchem Products, Inc. v. Windsor,
521 U.S. 591, 613-14 (1997). To initiate a class action, a group of Plaintiffs must
establish that the filed case meets all of these requirements. See Wal-Mart Stores,
Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011)(“A party seeking class certification
must affirmatively demonstrate his compliance with the Rule—that is, he must be
prepared to prove that there are in fact sufficiently numerous parties, common
questions of law or fact, etc.”). Courts should not suppress “doubt” as to whether
a Rule 23 requirement is met—no matter the area of substantive law. In re
Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 321 (3d Cir. 2009).
If a plaintiff is able to sufficiently demonstrate that they can meet the
requirements of 23(a), he or she can then maintain the class action by establishing
that the case fits under 23(b). The applicable sections cited by the Plaintiffs here
are 23(b)(2)(“the party opposing the class has acted or refused to act on grounds
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that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole”), and 23(b)(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.”)
To determine whether a plaintiff has met the requirements of Rule 23, the
Supreme Court has recognized that “sometimes it may be necessary for the court
to probe behind the pleadings before coming to rest on the certification question,”
… and that certification is proper only if ‘“the trial court is satisfied, after a
rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. . .
(“‘[A]ctual, not presumed, conformance with Rule 23(a) remains ...
indispensable”). Wal-Mart, 131 S. Ct. at 2551-52 (internal citations omitted).
The court’s initial “inquiry at the class certification stage may require the court to
resolve disputes going to the factual setting of the case, and such disputes may
overlap the merits of the case.” Blades v. Monsanto Co., 400 F.3d 562, 567 (8th
Cir. 2005); see also Wal-Mart, 131 S. Ct. at 2551-52 (“Frequently that “rigorous
analysis” will entail some overlap with the merits of the plaintiff's underlying
claim. That cannot be helped. “‘[T]he class determination generally involves
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considerations that are enmeshed in the factual and legal issues comprising the
plaintiff's cause of action.’ ”) “Nonetheless, such disputes may be resolved only
insofar as resolution is necessary to determine the nature of the evidence that
would be sufficient, if the plaintiff’s general allegations were true, to make out a
prima facie case for the class.” Id. Whether or not a plaintiff has met its burden of
demonstrating that it has satisfied the requirements of both Rule 23(a) and one of
the categories of Rule 23(b) “necessarily requires an examination of the
underlying elements necessary to establish liability for plaintiffs’ claims.” Id. at
568-69.
There are three related threshold requirements found by implication in Rule
23(a) which should begin any analysis of a putative class: (1) that a class must
exist; (2) that the representative parties are members of the class; and (3) that at
least one named class representative has Article III standing. Bynum v. District of
Columbia, 214 F.R.D. 27, 31 (D.D.C. 2003); McElhaney v. Eli Lilly & Co., 93
F.R.D. 875, 877 (D.S.D.1982); Prado-Steiman ex rel. Prado v. Bush, 221 F.3d
1266, 1279 (11th Cir.2000).
The first of these related requirements, that a class must exist, is
interchangeably referred to as ascertainability or identifiability. “If a class is so
vague that it is not susceptible to ready identification, problems may arise
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regarding the provision of notification to class members, the binding effect of any
judgment rendered in the case and the general concerns of propriety of an overly
large class.” See Ad Hoc Committee to Save Homer G. Phillips Hosp. v. City of St.
Louis, 143 F.R.D. 216, 219 (E.D.Mo. 1992). A proposed class may not be defined
in such a way as to make the actual composition of the class only determinable at
the conclusion of the proceedings. In re Paxil Litigation, 212 F.R.D. 539, 545
(C.D.Cal.2003); see also, McElhaney v. Eli Lily & Co., 93 F.R.D. 875, 877-88
(D.S.D.1982). A class should not be certified unless the class description is
“sufficiently definite so that it is administratively feasible for the court to
determine whether a particular individual is a member.” Kirkman v. N. Carolina R.
Co., 220 F.R.D. 49, 53 (M.D.N.C. 2004)(quoting 7A Wright, Miller & Kane,
Federal Practice and Procedure: Civil 3d § 1760 (3d ed.2005)). Certification is not
appropriate where the court would be required to engage in fact-intensive
individualized analysis to identify class members. Adair v. Johnston, 221 F.R.D.
573, 577-79 (D.Ala.2004); Daniels v. City of New York, 198 F.R.D. 409, 414
(S.D.N.Y.2001); Simer v. Rios, 661 F.2d 655, 669 (7th Cir.1981). Additionally,
the inability to ascertain which particular plaintiffs belong in the class makes it
difficult for the Court to determine whether requirements such as numerosity and
typicality are met. In re Paxil Litigation, 212 F.R.D. at 545.
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The second requirement is that, inherent in Rule 23, is the requirement that
the class representatives are members of the class, and a proffered representative
cannot represent the class where they cannot maintain their own claim. Alpern v.
UtiliCorp United, Inc., 84 F.3d 1525, 1540 n. 8 (8th Cir. 1996); Great Rivers Coop. of S.E. Iowa v. Farmland Indus., Inc., 120 F.3d 893, 899 (8th Cir. 1997); Hall
v. Lhaco, Inc., 140 F.3d 1190, 1196-97 (8th Cir. 1998).
Finally, it is well-settled that at least one named class representative must
have Article III standing to raise each class subclaim. Prado-Steiman, 221 F.3d at
1279; see also Veal v. Crown Auto Dealerships, Inc., 236 F.R.D. 572, 577
(M.D.Fla.2006). The constitutional requirements of Article III standing are well
known. First, the plaintiff must have suffered an injury in fact—an invasion of a
legally protected interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Second, there must be a
causal connection between the injury and the conduct complained of, i.e. the injury
must be fairly traceable to the challenged action of the defendant, and not the
result of the independent action of some third party not before the court. Id. Third,
it must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision. Id. at 561, 112 S.Ct. 2130.
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Plaintiffs’ foundational theory that no record of a cleanup means it did not
occur is incorporated into their class definitions, bringing into question
administrative feasibility. Plaintiffs propose two slightly different definitions
based on their substantive legal theories, but they include the identical phrase: “for
which there is no break and leak report identifying remediation.” Plaintiffs’
Motion raises questions as to their ability to meet all three of Rule 23(a)’s
threshold requirements.
First, Plaintiffs’ class definitions go beyond a level supported by the
evidence, for this presumes that remediation records are restricted only to “break
and leak reports.” Further, this definition raises the potential need for factintensive individualized analysis to identify class members. This Court would
have to conduct an inquiry regarding each person on Plaintiffs’ Exhibit 1 in order
to ascertain whether such a record could be found and correlated with their
property. Defendants have demonstrated that some records indicating prior
remediation do exist, both in the form of “break and leak reports” and tract file
documents alternately referred to as payment slips, damage receipts, and
settlements. Further, Plaintiffs’ Exhibit 1 fails to correlate any of the names and
properties on it to any “record indicating that there is a leak or spill…” as their
proposed class definitions require. Finally, Plaintiffs’ representative samples of
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“payment slips” reveal that they are not necessarily leak or spill records.
Significant fact-intensive individual analysis would be required to evaluate
membership in Plaintiffs’ proposed classes.
Second, Plaintiffs have not sufficiently established that they are members of
the classes they seek to represent because they have not come forward with
evidence that they own property with a record of a leak or spill from the old
ARCO pipeline; or evidence that WilTel breached a contract with them.
Plaintiffs define their proposed classes as persons “who currently own
property on which there is a record indicating that there is a leak or spill of
petroleum products or other pollutants or chemicals from … the [old ARCO
pipeline].” However, as evidenced by Plaintiffs’ Exhibit 1, purportedly a list of
such persons, they do not meet this definition and are not members of the classes
they describe, as Plaintiffs’ names do not appear in the document.
Plaintiffs have made no showing that they have sustained any injury in fact,
they have no proof of causation, and thus they lack standing to bring suit in their
own right. Plaintiffs claim contamination on their property but all experts agree
that they do not know its source. An allegation of contamination alone is not a
cognizable injury.
Plaintiffs also allege trespass, but to establish a claim for trespass, “the
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pollution must be at a level so as to constitute an actual interference with the
possession of the land.” Williams v. Monsanto, 856 S.W.2d 338 (Mo. App. 1993).
Moreover, a claim for trespass encompasses an element of causation, i.e., did any
actions of defendant cause a trespass? See Kinealy v. Southwestern Bell
Telephone Company, 368 S.W.2d 400, 402 (Mo. 1963). “[T]respass involves
interference with the plaintiffs' possessory rights and requires an intentional act
that results in a physical invasion of the plaintiffs' property.” Cook v. DeSoto
Fuels, Inc., 169 S.W.3d 94, 102 (Mo. App. E.D. 2005). Here, Plaintiffs allege that
contamination from leaks or spills of petroleum products constitutes the trespass.
Yet, the evidence demonstrates that the alleged spills or leaks all occurred prior to
Magellan or WilTel’s respective ownership of the old ARCO pipeline, and that
neither of them ever used the pipeline to transport petroleum products. No action
on their part can be described as an intentional act that resulted in a physical
invasion of Plaintiffs’ property.
Plaintiffs are landowners who do not occupy their property. They have
never lived on it. Rather, they rent it out, and farming is the only use of the
property. There is no residence or even a structure on the property. They do not
claim any interference with their use of the land. As Defendants’ expert Rohlfs
explained, no petroleum compounds detected by the SCI testing exceed MDNR’s
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Tier 1 criteria for construction worker exposure or any non-residential pathways
for current land use. Further, the alleged contamination on the Henke property is
not able to mobilize, i.e., it cannot migrate anyplace else, given its location and
low concentration. Consequently, the mere apprehension of speculative future
injury is insufficient to satisfy the Article III injury-in-fact requirement. LaBauve
v. Olin Corp., 231 F.R.D. 632, 650 (S.D. Ala. 2005).
THE FOUR EXPLICIT REQUIREMENTS OF RULE 23(A)
Rule 23(a)(1): Numerosity
Rule 23(a)(1) requires an inquiry into whether the class is so numerous that
joinder of all members is impracticable. Paxton v. Union Nat. Bank, 688 F.2d 552,
559 (8th Cir. 1982). Factors relevant to this inquiry include the number of persons
in the proposed class, although no arbitrary rules regarding the necessary size of
classes have been established. Id. Moreover, the number of persons in the
proposed class is merely one of several factors. The court may also consider the
nature of the action, the size of the individual claims, the inconvenience of trying
individual suits, and any other factor relevant to the practicability of joining all the
putative class members. Id. at 559-60. Courts have held that the geographical
dispersion of class members is among the factors which may be considered in
determining numerosity – that is, whether the individuals affected could be simply
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joined into one cause of action, rather than proceeding as a class. Cf. Morgan v.
United Parcel Service of America, Inc., 169 F.R.D. 349, 355 (E.D.Mo.
1996)(finding joinder impractical where potential class members were dispersed
throughout the eleven UPS regions in the United States); and Gries v. Standard
Ready Mix Concrete, L.L.C., 252 F.R.D. 479, 486 (N.D. Iowa 2008)(finding
insufficient geographic dispersion where substantially all of the proposed class
members lived within the boundaries of the judicial district). Finally, Courts have
also considered the fact that the members of a prospective class are able to be
identified when contemplating whether joinder is impracticable and a class action
required. Gries, 252 F.R.D. at 486 (finding that since the plaintiff could contact
each class member, joinder was not impracticable).
Here, Plaintiffs have offered themselves as the single willing participant,
asserting that they have satisfied the numerosity requirement because they have
listed 250 properties in their Exhibit 1. However, as to any individual property,
Exhibit 1 neither meets nor makes reference to half of Plaintiffs’ proposed class
definitions – first, a record of a leak or spill – or second, no corresponding
remediation record.
Further, as to their contract cause of action Plaintiffs have not identified any
current class numbers, and based on the evidence presented, the proposed class
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cannot possibly exceed twelve.
As to the geographic considerations, Plaintiffs’ entire proposed class is
contained within the boundaries of the Eastern District, and Plaintiffs, through
framing of the proposed classes, have demonstrated an ability to contact the
prospective class members they have identified.
Rule 23(a)(2): Commonality
The commonality determination “requires a plaintiff to show that there are
questions of law or fact common to the class.” Wal-Mart Stores, Inc. v. Dukes, 131
S. Ct. 2541, 2550-51 (2011). As the Supreme Court has observed, that language is
easy to misread, because any competently crafted class complaint literally raises
common “questions.” Id. at 2551. Merely reciting questions is not sufficient to
obtain class certification; rather, commonality requires the plaintiff to demonstrate
that the class members “have suffered the same injury.” Id. Further, the claims
must depend upon a common contention which must be of such a nature that it is
capable of classwide resolution—which means that determination of its truth or
falsity will resolve an issue that is central to the validity of each one of the claims
in one stroke. Id. The Wal-Mart Court quoted Professor Nagareda to explain:
What matters to class certification ... is not the raising of common
‘questions’—even in droves—but, rather the capacity of a classwide
proceeding to generate common answers apt to drive the resolution of
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the litigation. Dissimilarities within the proposed class are what have
the potential to impede the generation of common answers.
Id. (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84
N.Y.U.L.Rev. 97, 132 (2009)).
Plaintiffs pose multiple questions, suggesting that the existence of these
questions satisfies the commonality requirement of Rule 23(a). These questions do
not demonstrate similarities between members of the proposed classes. Plaintiffs
do not provide any proof of a classwide injury, where they offer only themselves
as an example and provide insufficient evidence to link even their own claims to
the old ARCO pipeline. But even if they had provided such evidence for
themselves, Plaintiffs have not demonstrated that the determination of damages on
their own property has any bearing on whether the same damage would have
resulted on all or even one of the other class members.
For instance, Plaintiffs’ Motion highlights the pervasive individualized
questions here, e.g.: “whether unremediated leaks from the subject pipeline remain
in soil and groundwater.” This is not a question that can be answered on a
classwide basis. Whether or not any given property has any contamination and
whether or not it was from the old ARCO pipeline is not one question, but
multiple questions. Plaintiffs’ questions include allegations which have no

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bearing on ultimate issues, for example, “whether defendants have a policy in
place to respond to old petroleum leaks.” Others are of the type criticized by the
Supreme Court in Wal-Mart: “Do all of us plaintiffs indeed work for Wal-Mart?”
and “Whether Exhibit 10.4 [a list of prior petroleum leaks] constitutes evidence of
prior petroleum leaks.” Another example of a question the Supreme Court
identified as having no bearing on ultimate issues is: “What remedies should we
get?” At least four of Plaintiffs’ questions fit this description, e.g., “Whether Class
Members are entitled to damages.”
But most importantly, the proposed class list does not include evidence
which would demonstrate that any or all of their members can (or will be able to)
answer the crucial two-part question to determine whether they have been injured
and should be included: “does my property have any contamination, and if so, is it
from the old ARCO pipeline?”
Additionally, the nature of Plaintiffs’ claim precludes satisfaction of the
commonality requirement. In Kirkman v. North Carolina R. Co., 220 F.R.D. 49
(M.D.N.C. 2004), a suit alleging trespass in the installation of fiber optic cable
across North Carolina was found to lack commonality because it included issues
such as the nature of the defendants’ property interest in each of the disputed
rights-of-way, the property interest of each potential class member in the right-of- 21 -

way at the time of the alleged trespass, and the possibility of statute of limitations
defenses for some class members. Id. at 52. All of these same problems exist here.
In Kirkman, the court found that by its nature as a property dispute, the inquiry
was necessarily an individual one, requiring a preliminary legal determination for
each potential class member before the Defendants’ conduct is even relevant. Id. at
52-53. The same complexities prevent a finding of commonality in this case as
well.
The Eighth Circuit defines typicality as requiring “a demonstration that
there are other members of the class who have the same or similar grievances as
the plaintiff.” Chaffin v. Rheem Mfg. Co., 904 F.2d 1269 (8th Cir. 1990). A
demonstration of typicality requires a plaintiff to demonstrate something more
than general conclusory allegations that prospective class members have suffered
the same injury as the plaintiff. Paxton, 688 F.2d at 562. A typicality analysis
necessarily involves a comparison of the plaintiffs and the prospective class
members. Thus, it is incumbent upon the plaintiff to submit sufficient evidence for
the court to conclude that prospective class members do, in fact, share in the
plaintiff's claims. TBK Partners v. Chomeau, 104 F.R.D. 127, 131 (E.D.Mo.
1985). Conversely, if the parties seeking to represent the class have claims or
defenses which are not shared by the proposed class members, then the class fails
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for lack of typicality. TBK Partners, 104 F.R.D. at 131. This point is illustrated by
the Burkhead case, where plaintiffs were residents of areas surrounding a power
plant who sought monetary and injunctive relief for damage allegedly resulting
from fallout and noxious odors. Id. 250 F.R.D. at 289. The Court rejected
plaintiffs’ motion for certification for failure to meet the requirement of Rule
23(a)(3), typicality, because the proposed representative plaintiffs did not
represent “an adequate cross-section” of the proposed class. Id. at 295. The Court
so concluded because plaintiffs’ geographic concentration made it unlikely that
their property damage claims would be “typical” of those that might be brought by
individuals elsewhere in the sizeable proposed class area. Id.
The typicality requirement also is not met where there is an apparent
conflict between a plaintiff's requested relief and those of potential class members.
TBK Partners, 104 F.R.D. at 131.
Here, Plaintiffs fail to meet both tests for typicality. First, Plaintiffs offer
only conclusory allegations that landowners along the old ARCO pipeline have
unremediated leaks, without presenting evidence showing that any class member
(including Plaintiffs) has unremediated contaminated property with the pipeline as
the source. Plaintiffs offer less than the statistical analysis deemed insufficient in

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Chaffin to demonstrate the existence of a class with the same or similar claims.
Their expert Deaver performed no statistical analysis – offering only speculation.
Plaintiffs also failed to support their assertion that there is documentation of prior
petroleum spills on their property, much less have they linked the alleged
contamination on their property to the old ARCO pipeline.
Plaintiffs also offer no basis for comparison of their claims across the class
– only conclusory allegations that assume prospective class members are similar.
There is no specific comparison of Plaintiffs to any prospective class member in
terms of their use or ownership of the land, the circumstances surrounding their
grievances, or the relief they may seek. Other members of the proposed class live
in areas subject to completely different influences, meaning that the factual and
legal issues of other proposed class members’ claims could differ dramatically
from one to the next. The nature and extent of each alleged site of contamination is
dependent upon numerous factors that are unique to each site and the individual
release. One plaintiff’s property may involve shallow ground water while another
site may not involve ground water at all. One site might involve a very large
release while another site may have had a very small release volume. One site
might have had contamination from a crude petroleum product while another site
might involve a refined petroleum product. Another site might involve significant
- 24 -

natural resources while another site may not. Land use varies from site to site. One
site may have exceeded a cleanup standard set by the MDNR, while another site
may not. Some plaintiffs may allege only property damage; other plaintiffs might
allege economic loss or even personal injury. Most significant however is that
causation is not typical across the Plaintiffs’ proposed classes.
Thus, the existence – much less the nature and extent – of any classwide
contamination is entirely speculative, Plaintiffs fail the typicality requirement
because the nature and extent of the potential contamination alleged for each
putative class member would be unique.
Second, Plaintiffs create a conflict between their requested relief and those
of potential class members by proposing a mandatory (b)(2) “testing class,” for
“[t]he Rule provides no opportunity for … (b)(2) class members to opt out….”
Wal–Mart, 131 S.Ct. at 2558. Granting Plaintiffs the injunctive relief they seek
would force all putative class members to submit their private property to testing
and cleanup activities as prescribed by Plaintiffs and limit their right to determine
future use of their land – a level of unanimity which cannot be presumed.
As to the breach of contract claim, the evidence presented shows that
Plaintiffs’ easement is atypical of easements along the fiber optic communications
cable and does not contain a claim that is applicable across the class.
- 25 -

Rule 23(a)(4): Adequacy
The adequacy of representation requirement under Rule 23(a)(4) seeks to
discover conflicts of interest between named representatives and the class they
seek to represent. Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 625-26 (1997). A
class representative must be part of the class, possess the same interest, and suffer
the same injury as the prospective class members. East Tex. Motor Freight Sys.,
Inc. v. Rodriguez, 431 U.S. 395, 403 (1977).
Additionally, several courts have found that a plaintiff proposing to be a
class representative cannot adequately do so where that plaintiff has voluntarily
foregone personal injury claims. See Burkhead v. Louisville Gas & Elec. Co., 250
F.R.D. 287, 296 (2008). These courts have repeatedly held that the failure to seek
full recovery by splitting out personal injury, property damage, and/or injunctive
relief claims creates a significant conflict of interest destroying adequacy of
representation. Martin v. Home Depot U.S.A., Inc., 225 F.R.D. 198, 203-04 (W.D.
Tex. 2004); see also In re MTBE 2002, 209 F.R.D. at 340.
The Burkhead court explained that under applicable state law, plaintiffs who
wished to pursue property damage claims on behalf of the entire proposed class
also would have imposed upon the entire proposed class their decision to give up
any personal injury claims that could be asserted against defendants.
- 26 -

The In re MTBE 2002 plaintiffs also failed to establish adequacy under Rule
23(a)(4) due to concerns over claims-splitting of plaintiffs lacking personal injury
claims. 209 F.R.D. at 338-41. More generally, where plaintiffs have purported to
represent two classes who allegedly suffered wrongs that plaintiffs apparently had
not, they have been deemed inadequate representatives. Homer G. Phillips, 143
F.R.D. 216 at [9] (no pinpoint cite available). Missouri adheres to the principle
that a single wrongful or negligent act which causes injury to both the person and
property of the same individual constitutes only one cause of action but with
separate items of damages. Collins v. Burg, 996 S.W.2d 512, 515-16 (Mo.
App.E.D. 1999). Such a cause action cannot be split; and a judgment in an action
for recovery for one item of damage will bar a separate action to recover for the
other item. Id.
Here, Plaintiffs assert claims only for injunctive relief and property
damages, not personal injury. As they state: “[t]he proposed Class is seeking
damages only arising out of property damage claims.” Thus, because Plaintiffs
assert claims only for property damage, they are not adequate representatives and
their proposed classes fail to meet this requirement.
RULE 23(B)(2) REQUIREMENTS
Class certification under Rule 23(b)(2) is proper only when the primary
- 27 -

relief sought is declaratory or injunctive. In re St. Jude Med., Inc., 425 F.3d 1116,
1121-22 (8th Cir. 2005). Injuries remedied through (b)(2) actions are really group,
as opposed to individual injuries, so the claims must be cohesive. Id. The key to
whether or not a (b)(2) class should be certified is “the indivisible nature of the
injunctive or declaratory remedy warranted—the notion that the conduct is such
that it can be enjoined or declared unlawful only as to all of the class members or
as to none of them.” Wal-Mart, 131 S.Ct. at 2557. As the Supreme Court put it,
“at a minimum, claims for individualized relief … do not satisfy the Rule.” Id.
Rule 23(b)(2) applies only when a single injunction or declaratory judgment
would provide relief to each member of the class. Id. The Rule does not authorize
class certification when each individual class member would be entitled to a
different injunction or declaratory judgment against the defendant; and neither
does it authorize class certification when each class member would be entitled to
an individualized award of monetary damages. Id. The Supreme Court also
pointed out that the Rule “does not require that class members be given notice and
opt-out rights, presumably because it is thought (rightly or wrongly) that notice
has no purpose when the class is mandatory, and that depriving people of their
right to sue in this manner complies with the Due Process Clause.” Id. at 2559.
In re MTBE 2002, 209 F.R.D at 343-44applied the principle that as
- 28 -

injunctive relief is not appropriate with respect to the class as a whole, where the
existence of individualized issues such as differences in the level of
contamination, the source of the contamination, how the contamination affects
each plaintiff, and the nature of relief that each will require. The court noted
specific factual issues such as plaintiffs with contamination levels below state
guidelines, the need for investigation at each site to characterize the source of
contamination, etc. Id. at 344. Since the existence of these issues destroyed
cohesiveness, no injunction could be sufficiently specific to provide a group-wide
remedy. Id. An injunction seeking remediation of contaminated wells was too
broad. Id. at 345.
Finally, certification under Rule 23(b)(2) can only be had under the plain
language of the rule when the injunctive relief sought will be “final injunctive
relief.” The word “final” in Rule 23(b)(2) refers to the nature of the relief, and not
merely the finality of the order entered. See Andrews v. Chevy Chase Bank, 545
F.3d 570, 576-77 (7th Cir. 2008). Courts reject the use of Rule 23(b)(2) as an
evidence-gathering tool to facilitate an award of damages. Kartman v. State Farm
Mutual Auto. Ins. Co., 634 F.3d 883 (7th Cir. 2011); Andrews v. Chevy Chase
Bank, 545 F.3d 570, 573 (7th Cir.2008); Bolin v. Sears, Roebuck & Co., 231 F.3d
970, 978 (5th Cir.2000). In Kartman, the Court specifically rejected an injunctive
- 29 -

class which would have required classwide reinspections at the expense of the
defendant to determine whether damage had been sufficiently addressed in the
past. 634 F.3d at 892. The Court found that such injunctive relief is neither “final”
nor “appropriate” under the language of the rule. Id.
Here, it is the requisite cohesiveness is lacking since Plaintiffs are not
primarily seeking injunctive relief with their “testing class.” The nature of
Plaintiffs’ requested relief is primarily for damages, not injunctive relief.
Plaintiffs seek the cost of restoration and cleanup of their property and eleven
other enumerated types of compensatory, consequential and incidental damages.
Plaintiffs do not even specifically request exploratory testing in their prayer for
relief. However, they now seek to characterize their “testing class” as having the
purpose of funding exploratory testing. But testing and remediation are not
injunctive relief – these costs are quantifiable as monetary damages. Plaintiffs’
proposal would impermissibly shift the cost of discovery of damages onto
Defendants.
Plaintiffs have failed to demonstrate or define a need for an injunction from
this Court spanning five counties in Missouri. The purported need for testing is
not indivisible. The test is not whether the relief could be applied to the whole
proposed class, it is whether it can only be applied to the whole class or none of it.
- 30 -

Nothing prevents Plaintiffs or any other landowner from conducting testing on
their own property to establish the existence or source of contamination. Nothing
prevented Plaintiffs from conducting self-limited testing on their own property.
Plaintiffs were able to do so without an injunction compelling 250 landowners to
submit to testing as well.
Furthermore, the disparate factual circumstances of class members have
been found to prevent a class from being cohesive and, therefore, make the class
unable to be certified under Rule 23(b)(2). Gates, 655 F.3d at 264. Plaintiffs may
not shift the inherent shortcomings of the class action device onto Defendants.
Further, Plaintiffs’ proposed injunction is not final: “[o]nly this testing can
identify any and all properties that are contaminated….” Their experts admit that
the extensive testing they propose will be insufficient to determine the source
and/or alternative sources of any contamination found, as well as other unresolved
issues. Even if the extensive testing reveals any contamination, it would not
produce any finality or resolve any classwide issues.
RULE 23(B)(3) REQUIREMENTS
Plaintiffs claim that the instant action is also maintainable under (b)(3). A
class action may be maintained pursuant to Rule 23(b)(3) where “the court finds
that questions of law or fact common to the members of the class predominate
- 31 -

over any questions affecting only individual members, and that a class action is
superior to other available methods for the fair and efficient adjudication of the
controversy.” Fed.R.Civ.P. 23(b)(3). In deciding whether a class is maintainable
under Rule 23(b)(3), this court must consider “the interest of the members of the
class in individually controlling the prosecution or defense of separate actions”
and “the difficulties likely to be encountered in the management of a class action.”
Id. The issue of manageability of a proposed class action is always a matter of
justifiable and serious concern for the trial court and peculiarly within its
discretion. In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d124, 140-41.
(2d Cir.2001). The overwhelming majority of courts refuse to certify mass tort
actions brought pursuant to Rule 23(b)(3). In re MTBE 2002, 209 F.R.D. at 349.
Predominance
Based on the predominance requirement of Rule 23(b)(3), courts deny
certification where individualized issues of fact abound. See, e.g., In re LifeUSA
Hldg., Inc., 242 F.3d 136, 144-46 (3d Cir.2001); Neenan v. Carnival Corp., 199
F.R.D. 372, 375 (S.D.Fla.2001). A claim is not appropriate for class treatment
where it requires individualized, fact intensive inquiry into facts and
circumstances unique to each putative class member. Blades v. Monsanto, 400
F.3d 562, 569-72 (8th Cir. 2005); see also Amchem Prods. v. Windsor, 521 U.S.
- 32 -

591, 624-25 (1997). Simply showing that common questions of law or fact may
exist is insufficient to satisfy Rule 23(b)(3)'s predominance requirement. Smith v.
Brown & Williamson Tobacco, 174 F.R.D. 90, 94 (W.D. Mo. 1997). The standard
for certification imposed by Rule 23(b)(3) is “far more demanding” than the
commonality requirement of Rule 23(a). Amchem, 521 U.S. at 624; In re
Genetically Modified Rice Litig., 251 F.R.D. 392, 397 (E.D. Mo. 2008).
While there are many individualized questions presented by Plaintiffs’
claims, the overwhelming predominant issue is: what is the cause of any
discovered contamination? This issue is incapable of classwide resolution where
Plaintiffs propose a class stretching across hundreds of different properties in five
counties, spanning over a hundred miles. Plaintiffs assert that liability can be
resolved for the entire class with a trial on common issues, leaving only damages
to individual hearings. However, Plaintiffs have not identified common questions
that are capable of predominating over the myriad individual inquiries which
would remain, including:
•

whether a petroleum release in fact occurred on a particular property;

•

whether a particular property is contaminated;

•
the source of any actual release or contamination on a particular
property (e.g. other active or dormant pipelines, other land uses unrelated to
pipelines);
- 33 -

•
the proximate cause of a release on a particular property, including
whether it was caused by the pipeline operator, the landowner, or a third
party such as an adjacent landowner, a utility, or contractor (for instance
striking the pipeline during excavating or farming activities);
•
whether remediation or clean-up activities were taken in response to
any alleged leak or release, by whom, and at what time, or whether
remediated at a later time;
•
the level of remediation required, permitted or authorized (by the
property owner or a governmental agency) at the time of alleged release;
•
whether a current or prior property owner declined remediation at any
point in time, or whether any payments were made to a property owner in
lieu of remediation;
•

whether any subsequent events may have affected a property;

•
the extent to which any original contamination has been resolved
through natural attenuation;
•

the damages, if any, sustained by each particular property owner; and

•
affirmative defenses, including the significant statute of limitations
issues that are presented.
Common questions do not predominate over individual questions in this
matter because the nature of the evidence Plaintiffs would need to offer to resolve
the questions described above varies from class member to class member, and
from property to property. As such, Plaintiffs’ ability to satisfy the predominance
requirement of Rule 23(b)(3) is obviated by the very nature of Plaintiffs’ claims.
Multiple different events in multiple locations over a long time
- 34 -

In re MTBE Prods. Liab. Litig., 209 F.R.D. 323 (S.D.N.Y. 2002), concerned
multiple actions by well owners in four states who alleged that their wells were
contaminated, or were in danger of being contaminated, by MTBE. Id. at 329. The
court found that the proposed class did not meet the requirements of Rule
23(b)(3). Id. at 350. The court began its analysis by noting that the overwhelming
majority of courts refuse to certify mass tort actions brought pursuant to Rule
23(b)(3). Id. at 349. The court also distinguished cases cited by the plaintiffs
before it as well as Plaintiffs here, on the grounds that those class representatives
had alleged a single accident, caused by a single or few actors who released the
chemical within a specific geographic location. Id. at 349-50. That is not this case.
In In re MTBE 2002, factors including the existence of third parties, the differing
degree of contamination from property to property, and the nature and extent of
damages and relief were all found to depend on site-specific examination, thus
destroying predominance. Such factors are on all fours with the facts of this case.
The Third Circuit distinguishes single events as well:
Not all claims of property damage based on exposure are alike. Single
instances or simple theories of contamination may be more apt for
consolidated proceedings than extensive periods of contamination
with multiple sources and various pathways.
Gates v. Rohm & Haas Co., 655 F.3d 255, 271 (3d Cir. 2011).

- 35 -

Gates involved plaintiffs seeking class certification of a class of village
residents including a class for compensation for property damage from alleged
vinyl chloride exposure under theories including negligence and trespass. Id. at
258, 271. In Gates, the court found that common issues did not predominate
because of the potential differences in contamination on the properties and
rejected plaintiffs’ motion for class certification under Rule 23(b)(3). Id. at 272,
274.
Likewise, in Reilly v. Gould, Inc., 965 F.Supp. 588 (M.D.Pa.1997) residents
of an area surrounding an industrial plant sued for lead exposure, seeking
certification of a property damage class. The court refused to certify a property
damage class due to “the presence of additional individualized factors affecting
individual plaintiffs which wreaks havoc on the notion that all plaintiffs’ injuries
have been caused solely by the defendant’s actions.” Id. at 602. The court noted
that the impact of exposure would have to be analyzed on a property by property
basis. Id. at 605. That property by property analysis would be further complicated
here by the lack of a centralized group of putative class members.
The instant case fits with those described above: the alleged period of
contamination nears almost a century; the alleged leaks span over a hundred miles
of the old ARCO pipeline; and Plaintiffs’ own property demonstrates the existence
- 36 -

of multiple sources and pathways such as other pipelines.
Plaintiffs rely exclusively on authority based on single event and single
location incidents where classes have been certified. However, when considering
multiple events in different locations over long periods of time, courts have
recognized that these types of suits are ill-suited to the class action device. Even
more specifically, class action certification has been rejected under these
circumstances in the setting of alleged environmental contamination.
The lack of any single, operative event or conduct that may have “caused”
injury to each individual plaintiff renders this case extremely ill-suited for class
resolution. Courts have recognized the difficulties inherent in certifying a class in
mass tort cases and product liability cases, which, like this case, present numerous
individual inquiries. But this case, unlike “mass tort” cases, also lacks a single
“event” or conduct that suggests some common evidence of liability.
If there was a single release of petroleum from a pipeline affecting large
numbers of plaintiffs, it may be possible to litigate issues such as: where did the
release come from; who caused or contributed to cause it; etc. But here, there is no
single “happening” or conduct that Plaintiffs can point to or rely upon as proof of
a common proximate cause or single set of operative facts. This is particularly true
given that Plaintiffs seek relief against three different Defendants, all of whom
- 37 -

played a different role at different times, and against whom different claims are
asserted. Although Plaintiffs’ Motion for Certification attempts to group all
defendants together, the multiple defendants will necessarily have varying degrees
of liability, if any. Significant differences exist as to what each entity did, what
each entity knew, what duties (if any) each entity owed, what actions each entity
took, and which property owners were affected by each.
The existence of contamination, causation, and damages
In Fisher v. Ciba Specialty Chems. Corp., 238 F.R.D. 273 (S.D.Ala.2006),
the plaintiffs requested certification of a class of owners of property within an
approximately 2.1 mile radius of a chemical manufacturing facility, seeking
damages for diminution in property values. Id. at 276-77. The court rejected
plaintiffs’ motion for certification for a failure to satisfy Rule 23(b)(3). Id. at 302310. The Fisher court found that individual proof substantially outweighed
common proof, in summary:
Any theory of liability predicated on intrusion of … contaminants on
a plaintiff’s property (e.g., nuisance, trespass, negligence) finds
common issues being overwhelmed by individual issues for four
reasons, to-wit: (a) individual proof will be necessary to show the
existence of contamination; (b) individual proof will be necessary to
show the causation of any observed contamination; (c) individual
proof will be necessary on the issue of damages; and (d) individual
proof will be necessary to assess defendants’ limitations defense.

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Id. at 306-07. Regarding the first of these, the court noted that common proof
would not show that any given plaintiff’s property was, in fact, contaminated. Id.
at 307. As to the second, the court explained that causation would unquestionably
be an individual-specific enterprise, as the mere presence of a chemical at a
location says nothing about causation for purposes of holding a defendant liable.
Id. at 307.
In LaBauve, the court rejected the plaintiffs’ motion for class certification
under Rule 23(b)(3) for failure to meet its predominance requirement, focusing on
the need for individualized damages calculations, combined with the numerous
liability and limitations issues requiring plaintiff-by-plaintiff scrutiny. 231 F.R.D.
at 678. The court noted numerous fundamental issues that would demand
individual-specific resolution, including: “[w]hether a plaintiff’s property is
contaminated, the source(s) of such contamination, the extent of such
contamination, the cause and timing of harm, and the resulting damage (measured
in diminution of property value).” Id. at 673. Based on these issues, the LaBauve
court concluded that plaintiffs would still need to introduce extensive
individualized proof or argue substantial individualized legal points to establish
most of the elements of their claims. Id. The Court illustrated its point in the
context of the trespass claim, noting that elements concerning causation and
- 39 -

damages would require substantial individualized proof and legal argument even if
plaintiffs proved all common issues regarding a history of releases of toxic
materials by the defendant. Id.
As to the third reason why the Fisher court found that individual proof
substantially outweighed common proof, computation of damages to property will
inevitably be a property-specific enterprise here. The Fisher court observed that
while this reason is frequently noted as not being sufficient in and of itself to
preclude a finding of predominance, where significant individualized questions
going to liability coincide as well, the need for property-specific damages
calculations will militate strongly against certification under Rule 23(b)(3).
In Steering Comm. v. Exxon Mobil, 461 F.3d 598, 602 (5th Cir. 2006), the
Court recognized that “separate types of proof would be necessary for … property
damage, devaluation, and business loss claims.” The Court further held that where
“individual damages cannot be determined by reference to a mathematical or
formulaic calculation, the damages issue may predominate over any common
issues shared by the class,” class certification is likely improper. Id. These issues
will “require plaintiff-by-plaintiff scrutiny” and “will remain unanswered in a
class proceeding.” Gates v. Rohm & Haas, 265 F.R.D. at 233.
Individualized proof of contamination (injury), causation, and damages
- 40 -

would be necessary for the negligence and trespass counts plead against
Defendants here. These claims would require claimant-specific proof of the
essential elements for each claim, including: (I) is a particular property
contaminated?; (2) what was the source and/or cause of the contamination?; (3)
whether there are any damages to each particular property, e.g. the amount of
remediation required, loss of value, diminished use or enjoyment of the property,
and any other compensatory losses suffered by individual property owners.
Plaintiffs acknowledge this problem by seeking to shift the burden of
demonstrating classwide petroleum contamination to Defendants by their “testing
class.” And, as in Burkhead, “what remains missing is any evidence that the cause
of the entire class’s damages could be determined in a single proceeding.”
(emphasis in original). 250 F.R.D. at 299. For each property owner, as a threshold
matter, Plaintiffs will need to establish contamination, or actual injury. Plaintiffs
neither offer nor even suggest any common proof that can establish that all
putative class members in fact have contaminants on their individual properties.
Evidence of contamination will vary from class member to class member and from
property to property. There is also no common evidence of source, or cause.
While common evidence may offer one potential source of contaminants,
many other explanations may exist that are specific to a particular property. But
- 41 -

Plaintiffs offer only their own property as an example – albeit one that illustrates
this problem, for their property includes other potential sources – other pipelines,
including pipelines which are currently transporting petroleum products.
Plaintiffs present evidence of contamination on their own property (but not
the source or cause of that contamination) and even if there was evidence that the
old ARCO pipeline was the source, this evidence would only be applicable to their
property alone, and could not be used to establish any other property owner’s
claim in the proposed “liability class.” Even if Plaintiffs were permitted to proceed
to trial, and it was judicially determined that the old ARCO pipeline was the
source, it would not be a determination of a common issue because it would have
no application to any other property. Causation is individual to each putative class
member. Plaintiffs’ experts acknowledge that similar testing would need to be
conducted on each property – an expansive and costly process in and of itself –
which would only establish either the lack of or presence of contamination at each
site. Then, even if actual contamination is found on a particular property, Plaintiffs
must still further establish that the source of such contamination was the old
ARCO pipeline and still further, attributable to some conduct of one of the
Defendants. Plaintiffs’ experts acknowledge that more extensive and more
expensive testing would be required at each site to determine the source, extent,
- 42 -

and many other salient details of any contamination found. Such individualized
proof of contamination and causation render class treatment ineffective.
Plaintiffs seek unspecified monetary damages for: loss in property value, the
cost of restoration and clean-up of a property, for “loss of use” of a property, for
“annoyance and discomfort” to each property owner, for loss of business
opportunity to a property owner, for loss of rental value for a particular property,
for decreased marketability of the property, and other economic or “noneconomic” losses. All of these claimed damages are specific to each individual
property owner and each individual property, and are not subject to any classwide
proof. There is no reasonable “formula” that can be used to assess damages.
Rather, a property-by-property, claimant-specific assessment must be made.
Additional individual issues exist, including whether a particular property owner
remediated the property or will consent to any proposed remediation. Plaintiffs
seek monetary damages and classwide remediation, yet an individual property
owner may have already declined or may choose to decline remediation.
Claims that Defendants were negligent, caused leaks, or may have failed to
clean them up during varying periods and types of ownership of the pipeline over
decades is insufficient to maintain a class, as the questions of causation,
maintenance, operation, and actions taken by each pipeline owner will need to be
- 43 -

addressed for each individual leak, at each discrete point in time for the old ARCO
pipeline. Nor can Plaintiffs simply claim that some general pattern by Defendants
of “failing to maintain” the old ARCO pipeline or “failing to investigate” past
leaks led to or caused all of these individual events, without offering proof as to
the cause and alleged negligence of each leak. Exhibit 10.4 is just one illustration
of the various “causes” for each of the leaks identified therein, e.g. “external
corrosion,” “equipment failure,” and “third party.” Many of Plaintiffs’ claims do
not even apply to Magellan or WilTel, who never operated the pipeline. The same
is true for Plaintiffs’ trespass claims. Each property will require an individual
assessment, and the same issues of causation, contamination and injury are still
present.
Affirmative defenses
The fourth reason Fisher held that common issues were overwhelmed by
individual issues was the existence of affirmative defenses. The Fisher court
found that disparate, individualized assessment of a statute of limitations issue
may cause individual considerations to predominate, especially where plaintiffspecific timeliness defenses could reasonably be expected to become a focal point
of the litigation, overshadowing common issues and negating the benefits of the
class certification mechanism. Id. at 309-10.
- 44 -

Defenses such as the statute of limitations, mitigation or affirmative release
of claims will require an individualized determination for each class member
because these defenses turn in large part on each class member’s knowledge and
conduct, or a prior owner’s knowledge and conduct.
The individual issues raised by affirmative defenses can “clearly” preclude
certification. Barnes v. Am. Tobacco. Co., 176 F.R.D. 479, 502 (E.D. Pa. 1997);
see also In re Dalkon Shield IUD Prods. Liab. Litig., 693 F.2d at 853 (individual
issues may outnumber common issues where affirmative defense “may depend on
facts peculiar to each plaintiff’s case”). As noted in Barnes v. Am. Tobacco Co.,
175 F.R.D. 479, 502 (E.D. Pa. 1997), “the individual issues that are involved in
determining whether affirmative defenses and the statute of limitations apply to
each and every plaintiff” can be “staggering” and preclude certification. In Barnes
v. Am. Tobacco Co., 175 F.R.D. 479, 502 (E.D. Pa. 1997), the Court noted that in
determining a limitations defense, it would “have to examine when plaintiff's
injury accrued, and whether plaintiff knew or should have known of the injury and
its cause” which the Court recognized was “clearly an individual issue.” In
LaBauve, the court cited limitations issues (i.e., “…when each plaintiff knew or
should have known of the alleged contamination...”) among other problems
requiring plaintiff-by-plaintiff scrutiny in concluding the plaintiffs had failed to
- 45 -

meet Rule 23(b)(3)’s predominance requirement. 231 F.R.D. at 673, 678.
Likewise here, the Court would have to examine when a putative plaintiff’s
injury accrued, whether a plaintiff knew or should have known of the injury, as
well all the notice or knowledge of all prior property owners. Further, with respect
to the affirmative release of claims defense, the Court will need to examine
whether a property owner provided a release and the scope of such release. Here,
the individual issues for each affirmative defense would be complex and require
an individual assessment for each and every putative class member.
Breach of contract
Plaintiffs offer no common proof to establish a “classwide breach,” as they
would need to show whether defendant WilTel breached its contract vis-a-vis the
individual signatory to each contract. This type of claim requires proof – in each
instance for each particular property – first, the threshold issue of whether that
particular tract of land was in fact contaminated, and then, that WilTel actually
“knew” of such contamination and failed to live up to its contractual obligations.
There is no potential for common or classwide proof as to WilTel’s independent
actual knowledge of actual contamination on a particular piece of land. WilTel’s
liability to the entire class for breach of contract cannot be established with
common evidence. See Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023 (8th Cir.
- 46 -

2003) (denying certification for breach of contract claim where individualized
extrinsic evidence would be needed and liability could not be established on
classwide basis).
Superiority
Rule 23(b)(3) also requires Plaintiffs to prove the proposed action “is
superior to other available methods for fairly and efficiently adjudicating the
controversy.” This analysis “encompasses the whole range of practical problems
that may render the class action format inappropriate for a particular suit.” Eisen v.
Carlisle & Jacquelin, 417 U.S. 156, 164 (1974).
As discussed above, there are simply too many individualized inquiries
relating to liability and damages to suggest that a class action is the superior
method for handling this litigation. The collective presentation of individual
liability evidence will not advance the parties' interests, nor will judicial economy
of administration result from certification. The “missing link, causation [and
contamination], will have to be proved in the case of each plaintiff before other
individual issues such as damages can be reached.” See Caruso v. Celsius
Insulation Resources, Inc., 101 F.R.D. 530, 535-537 (M.D. Pa. 1984). Given the
numerous individualized factual and legal issues that exist here, the Court would
be faced with the classic case of having a lengthy series of “mini-trials” for each
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claim and for virtually every element of those claims. See, e.g., In re Genetically
Modified Rice Litig., 251 F.R.D. 392, 399-400 (E.D. Mo. 2008) (class action not
superior where case would “devolve into an endless series of ‘mini-trials’ that
would fail to meet the goals of class certification.”)
There would be no gain in judicial efficiency by conducting the individual
trials which would still be necessary if this case were certified and reached the
fourth and final step proposed by Plaintiffs. Hundreds of property owners would
receive notices about the litigation just before that step. At that point all of the
predominant individual issues would still remain. Because there is no common
proof of negligence or causation, each class member would still have to establish
at a minimum (1) his or her geographic connection to the old ARCO pipeline
and/or an identified leak; (2) conclusive evidence demonstrating actual
contamination on the property; (3) evidence that the contamination, if any, on their
property was attributable to the old ARCO pipeline (and for the period of time it
was in operation), and (4)it specifically was attributable to some action taken by
one of the Defendants. The litigation would immediately devolve into a series of
mini-trials for each class member and each instance of a leak.
There is also no way to determine the identity of class members without
individualized inquiry. Plaintiffs seek to have an injunction entered against all
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Defendants ordering them to test each putative class member’s property to
determine if there is contamination – after a class has already been certified.
Plaintiffs have not come forward with evidence that property along the old
ARCO pipeline has been affected classwide. Plaintiffs have not identified
common issues of liability leaving only damages for mini-trials. There would be
no increased efficiency under Plaintiffs’ proposal, for the litigation would still
comprise an unavoidable series of mini-trials on multiple issues other than and
including damages. Plaintiffs offer no evidence that leaks remain in the soil across
a widespread area. Their proposed classes are not superior to individual litigation,
and due to the many individual mini-trials necessitated by the nature of their
claims and the nature of the evidence they will need to present, cannot be feasibly
managed by the Court. Separate trials held outside of the class action device would
not be repetitive due to the multiplicity of unique issues here. Accordingly,
Plaintiffs cannot show that class treatment would be an efficient and superior
means for handling this litigation.
“ISSUE CERTIFICATION”
The Eighth Circuit has previously declined to choose a side in what it
characterized as a “conflict of authority” as to whether a class can be separately
certified as an “issue class” under Rule 23(c)(4). In re St. Jude Med., Inc., 522
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F.3d 836, 841 (8th Cir. 2008)(citing cases on both sides of the split). At issue is
whether “issue certification” is permitted as a separate fourth avenue for
certification, on equal footing with Rules 23(b)(1), 23(b)(2), and 23(b)(3), where
Plaintiffs otherwise fail to meet the requirements of Rule 23(b)(3).
Having considered these authorities, this Court concludes that the better
reasoned approach is found in Castano v. Am. Tobacco Co., 84 F.3d 734, 745 (5th
Cir.1996), where the Fifth Circuit rejected an attempt to avoid the predominance
requirement of Rule 23(b)(3) by seeking certification pursuant to Rule 23(c)(4):
A district court cannot manufacture predominance through the nimble
use of subdivision (c)(4). The proper interpretation of the interaction
between subdivisions (b)(3) and (c)(4) is that a cause of action, as a
whole, must satisfy the predominance requirement of (b)(3) and that
(c)(4) is a housekeeping rule that allows courts to sever the common
issues for trial ... Reading rule 23(c)(4) as allowing a court to sever
issues until the remaining common issue predominates over the
remaining individual issues would eviscerate the predominance
requirement of rule 23(b)(3); the result would be automatic
certification in every case where there is a common issue, a result that
could not have been intended.
Castano, 84 F.3d at 745, n. 21. In this Court’s view, absent authority within this
Circuit’s precedent indicating otherwise, Rule 23(c)(4) should not be used as a
separate avenue for certification and will not certify a class based upon it.
CONCLUSION
Certification of the classes which Plaintiffs attempt to define would be
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unprecedented. Plaintiffs have no evidence of contamination on their property
from the old ARCO pipeline, much less widespread contamination across five
counties and over a hundred miles. They have asked the Court to certify one class
and order defendants who never placed any petroleum in the pipeline to fund a
massive speculative testing project. Even though the results of this testing project
would not reveal the source of anything found, Plaintiffs then propose a second
class based upon it.
For the following reasons, Plaintiffs’ Motion for Class Certification is
denied: (1) Plaintiffs have failed to show that an ascertainable class exists, that
they are members of the class, and that they have standing; (2) Plaintiffs’ claims
fail to satisfy the numerosity requirement of Rule 23(a)(1); (3) Plaintiffs’ claims
fail to satisfy the commonality requirement of Rule 23(a)(2); (4) Plaintiffs’ claims
fail to satisfy the typicality requirement of Rule 23(a)(3); (5) Plaintiffs’ claims fail
to satisfy the adequacy requirement of Rule 23(a)(4); (6) Plaintiffs’ proposed
“testing class” does not primarily seek final injunctive relief as required by Rule
23(b)(2); (7) Plaintiffs’ proposed “liability class” does not raise questions of law
or fact that predominate over individual issues, and is not a superior method of
adjudication as required Rule 23(b)(2); (8) finally this Court declines to recognize
Rule 23(c)(4) as a separate avenue for certification where other requirements are
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not met.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Class Certification,
[Doc. 98], is DENIED.
Dated this 12th day of March, 2014

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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