Combs et al v. Lounge KC, LLC., et al
ORDER AND OPINION DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION, 83 . Signed on 2/3/15 by District Judge Ortrie D. Smith. (Matthes, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
DANTE A.R. COMBS, individually and
on behalf of all others similarly situated,
and ADAM S. WILLIAMS, individually
and on behalf of all others similarly
THE CORDISH COMPANIES, INC.,
Case No. 14-0227-CV-W-ODS
ORDER AND OPINION DENYING
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Pending is Plaintiffs’ Motion for Class Certification. Defendants Cordish
Companies, Lounge KC, Entertainment Concepts Investors, and Entertainment
Consulting International (collectively “Cordish”) filed Suggestions in Opposition.
Defendant First Response filed separate Suggestions in Opposition that incorporates
Cordish’s arguments and presents some arguments focusing on First Response. The
Court has considered all of the parties’ arguments and materials, and now denies the
motion (Doc. # 83).
The Amended Complaint raises allegations about activities in “the Power and
Light District” (“the District”) – “an approximately eight-block neighborhood located in
downtown Kansas City” that consists of “a number of restaurants, bars, clubs, and other
entertainment venues . . . .” Amended Complaint, ¶¶ 12-13. Plaintiffs allege each
business in the District is “ultimately controlled, directly or indirectly, by” Cordish.
Plaintiff’s Suggestions in Support (Doc. # 84) at 6. First Response is generally
described as an entity retained to provide security in the District. Beyond these
allegations, the Defendants’ roles or connections to the District are not clearly
Within the District is a common area referred to as the “Living Room” or “Plaza,”
consisting of a patio area and the entrances (in some cases, the only entrances) to
various bars, restaurants and nightclubs. Amended Complaint, ¶¶ 16-17. The
Amended Complaint generally alleges Defendants have taken measures to preclude
African Americans from being in the Plaza, thereby denying them access to the
businesses accessed therefrom. Specifically, Defendants are alleged to have limited
African Americans’ access to the District through use of the following means:
Delayed or outright denial of entry, Id., ¶¶ 32-33,
Harassing and provoking patrons through the use of “excessive
questioning,” following patrons, and making “unfounded
accusations” about violations of the dress code or the District’s
rules of conduct, Id., ¶¶ 34-36, and
The use of one or more employees (termed “rabbits”) to initiate
altercations with African Americans in order to fabricate an excuse
to eject them. Id., ¶ 42-48.
The Amended Complaint identifies three specific instances in which these tactics
were employed: two involve Combs, and one involves both Combs and Williams. Id., ¶¶
49-90. In the first incident, Combs alleges a Caucasian male bumped into him and
knocked his cell phone to the ground, then “aggressively got in Plaintiff Combs’ face
and said words to the effect of ‘What are you looking at?’” Security guards arrived and
made Combs leave, but did not make the person who bumped into him leave.
Amended Complaint ¶¶ 51-55, 57-58. In the second incident, Combs attempted to
enter the Mosaic Lounge. Four or five Caucasians were admitted into the club without
problem, but he was stopped and required to produce identification. Once he did, he
was put into a different line, at which time he was ignored. His requests to see the
manager were also ignored. He was eventually told that his pants were “too baggy”
even though he was “professionally dressed in a tailor-made upscale suit, tie, and
shoes.” Combs continued to insist upon receiving the names of the persons refusing
him admittance, at which point he was ejected. Amended Complaint, ¶¶ 61-72. In the
third incident, Combs and Williams were at a restaurant in the District when a male
Caucasian approached them and started a scuffle. The scuffle was joined by more
Caucasian men. Despite being told that neither Combs nor Williams started the
incident, security guards from First Response handcuffed Williams, removed him from
the premises, held him for ninety minutes, and subjected him “to harassing questions
about what he was doing at [the District] and how often he came there.” After ninety
minutes, Williams was released. Amended Complaint, ¶¶ 78-90.
Plaintiffs seek to assert actions on behalf of a class. The only remaining claim
appears in Count II,1 which is based on 42 U.S.C. § 1981. This statute provides that all
persons “shall have the same right . . . to make and enforce contracts . . . and to the full
and equal benefit of all laws and proceedings for the security of persons and property
as is enjoyed by white citizens . . . .” Plaintiffs propose a class consisting of all persons
of African American descent who were “excluded, ejected, harassed, or suffered other
discriminatory treatment” by Defendants within the District at any time after March 10,
Certification of a class action is governed by Rule 23 of the Rules of Civil
Procedure. A district court retains discretion to certify a class if (1) all of the
requirements of Rule 23(a) are satisfied and (2) the class qualifies under one of the
three categories in Rule 23(b). The district court must conduct a “rigorous analysis,”
which does not permit the Court to resolve the merits but requires the Court to
“consider[ ] . . . what the parties must prove.” Elizabeth M. V. Montenez, 458 F.3d 779,
786 (8th Cir. 2006). The district court must also probe behind the pleadings – again, not
to resolve the merits, but to understand the facts that will be utilized to support the
claims asserted. E.g., Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011);
Count I, which was premised on Title II of the Civil Rights Act, was dismissed on
August 26, 2014.
Bennett v. Nucor Corp., 656 F.3d 802, 814 (8th Cir. 2011), cert. denied, 132 S. Ct. 1807
In conducting this analysis it is helpful to consider the law governing section 1981
claims. Plaintiffs cite cases discussing section 1981 claims based on circumstantial
evidence, and for the sake of argument the Court will accept that Plaintiffs present a
case based on circumstantial (and not direct) evidence of discrimination. With that
understanding, Plaintiffs must establish a prima facie case of discrimination establishing
(1) they are a member of a racial minority, (2) one or more Defendants intended to
discriminate against them based on their race, and (3) the discrimination concerned an
area described in the statute. Williams v. Lindenwood Univ., 288 F.3d 349, 355 (8th Cir.
2002). The first and third components are not really at issue; there is no question that
Plaintiffs and the class are members of a racial minority, and there is no question that
the alleged discrimination concerns an area described in the statute.2 The second
component implies (and Williams’s ensuing discussion confirms) that the Plaintiffs must
present evidence demonstrating that they were somehow treated differently based on
their race (because merely having an intent to discriminate, alone, does not create the
cause of action). Id. at 355-56. Once the prima facie case has been satisfied, the
Cordish discusses at length the need for there to be an identified contractual
relationship that has been impaired. Cf. Withers v. Dick’s Sporting Goods, Inc., 636
F.3d 958, 963 (8th Cir. 2011). For present purposes – and until Cordish demonstrates
otherwise – the Court accepts that the attempt to enter a retail establishment for the
purpose of buying food and drink qualifies as a contractual relationship, and that
denying entry into the premises based on the customer’s race would impair the making
of that contract. The Court is also of the view that an attempt to pay a cover charge to
gain entry into a retail establishment (if one is required) would also qualify as a
contractual relationship. To the extent that Cordish intimates that Plaintiffs’ or the class
members’ contractual relationships somehow “ended” upon the completion of a
purchase, the Court notes that the making and enforcing of contracts within the statute’s
meaning “includes the making, performance . . . and the enjoyment of all benefits,
privileges, terms and conditions of the contractual relationship.” 42 U.S.C. § 1981(b).
The Court is presently of the view that one of the “terms and conditions” of a contract in
which a person buys food or drink in a restaurant or bar is the consumption of the food
or drink in the premises. The Court is also of the view that one of the terms and
conditions of a contract whereby a patron pays a cover charge is to stay in the premises
until the patron wants to leave or the contract expires on its own terms.
Defendant is entitled to rebut the presumption of discrimination by presenting evidence
demonstrating a legitimate, nondiscriminatory reason for its actions.
A. Rule 23(a) and the Class Definition
To be certified, a class must satisfy the requirements of Rule 23(a). Those
1) The class is so numerous that joinder of all members is impracticable;
2) There are questions of law or fact common to the class;
3) The claims or defenses of the representative parties are typical of the
claims or defenses of the class; and
4) The representative parties will fairly and adequately protect the interests of
In addition, either before or as part of the Rule 23(a) analysis, the Court must
examine the proposed class definition to determine if it is sufficiently precise. “[T]he
definition should be sufficiently precise, standing alone, to afford the court and parties
the ability to ascertain who is a class member. . . . Class definitions inform the court, all
named parties, and the class members concerning the scope of putative members
entitled to notice of the proceedings, who can ultimately enforce a favorable ruling, and
who will be bound by an adverse one.” Carson P. ex rel. Foreman v. Heineman, 240
F.R.D. 456, 495 (D. Neb. 2007); see also In re Constar Int’l Inc. Securities Litig., 585
F.3d 774, 782 (3d Cir. 2009); In re Monumental Life Ins. Co., 365 F.3d 4908, 413 (5th
Cir. 2004); Manual for Complex Litigation (Fourth) § 21.222.
Plaintiffs’ proposed class definition is too ambiguous. The class is defined in
terms of people who were “excluded, ejected, harassed, or suffered other discriminatory
treatment.” Context suggests the class is actually limited to those who were ejected
based on their race or excluded based on their race – because African Americans who
were ejected for non-racial reasons have no claim under section 1981. It cannot be
Plaintiffs’ intent to suggest that the jury or Court must automatically conclude that all
ejections or exclusions were based on race. Thus, the class definition has to be
modified to reflect this facet of the claims. Second, the generalized phrase “or suffered
other discriminatory treatment” is too broad to be of any use in identifying the nature of
the claims asserted. Again, the class definition has to be modified to reflect the claims
asserted. The Court is not bound by the parties’ proposed class definition(s). E.g.,
Smith v. Brown & Williamson Tobacco Corp., 174 F.R.D. 90, 92 n.2 (W.D. Mo. 1997).
The problems identified can be alleviated (at least in part)3 by changing the class
All persons of African American descent who, while in or attempting to
enter the District at any time after March 10, 2010,
were excluded based on their race,
ejected based on their race, or
harassed based on their race through the use of excessive
questions, being followed, or subjected to unfounded accusations of
violations of District rules (including dress codes).
This definition encompasses the specific activities alleged in paragraphs 32-48 of the
Amended Complaint. In particular, the claims of delayed or denied entry are included in
#1, the harassment claims are included in #3, and the alleged use of “rabbits” to pick
fights with customers and provide an excuse to eject them is a subset of #2. Patrons
who allege to have been ejected based on race without the use of a rabbit would also
fall within #2. Presumably, subclasses could be created based on these three
categories of claims with some people (such as Combs) being members of multiple
It may be that the Court’s modified class definition is still insufficient. For
instance, some circuits have held that a “fail-safe class” – one in which a person’s
membership depends on them first having a valid claim – is impermissible. E.g.,
Messner v. Northshore Univ. HealthSystem, 689 F.3d 802 (7th Cir. 2012). Other circuits
have rejected this view. E.g., In re Rodriguez, 695 F.3d 360, 370-71 (5th Cir. 2012).
The Eighth Circuit has not addressed the issue. The Court tends to agree with the Fifth
Circuit’s view; although fail-safe classes sometimes present significant issues with
respect to Rule 23(b)(3)’s predominance requirement, they are usually less problematic
for classes under Rule 23(b)(1) and (b)(2) and nothing in Rule 23 prohibits them.
However, the Court will not delve further into this issue for a variety of reasons, the most
important of which is this: given that the class is not being certified on other grounds,
there is no reason to exert greater effort on the issue.
The Court will spend little time on the Rule 23(a) requirements of numerosity and
adequacy. Plaintiffs contend there are at least 5,000 class members. Defendants
dispute this conclusion, contending that Plaintiffs have no proof that 5,000 people have
been subjected to the conduct necessary to make them members of the class.
Plaintiffs’ number is based on an estimate on the number of African Americans who
have patronized the District within the relevant time period. For the sake of argument,
the Court will accept Plaintiffs’ calculation and the premise that there are potentially
5,000 class members. As for adequacy, the Court’s discussion of other issues makes it
unnecessary to examine the adequacy of either the would-be class representatives or
class counsel. The Court specifically cautions that nothing herein should be construed
as an opinion regarding the ability of counsel to adequately represent the class.
The commonality requirement is barely satisfied, if at all. Plaintiffs correctly
contend that there is no need for every question of law and fact to be common to all
class members, and suggest that the following common questions exist: (1) whether
Defendants had policies or practices that denied African Americans the right to make
contracts in the District and (2) whether such policies were actually employed with the
intent of denying African Americans the rights to make such contracts or to otherwise
limit the number of African Americans in the District. These questions are common in a
broad and abstract sense. But, as the Supreme Court has counseled, any competently
crafted class complaint will raise questions that appear common. Dukes, 131 S. Ct. at
2551. The Supreme Court explained that a question is properly regarded as common to
all class members if it produces common answers that are capable of promoting
resolution of the litigation. Id. at 2555; see also Smith, 174 F.R.D. at 94 (noting that
resolution of the supposedly common issues must advance resolution of the individual
cases). Convincing a jury that Defendants have such policies does not mean that any
particular Plaintiff or class member is entitled to relief; to get relief, each Plaintiff and
class member must demonstrate that the policy was actually employed in whatever
situation(s) they were involved in. For instance, proving that Defendants had a practice
of employing “rabbits” to pick fights with African Americans in order to fabricate an
excuse to evict such patrons will not resolve whether any particular ejected individual
was properly or improperly ejected – so the answer to the common question does little
to advance any particular person’s legal claim.
The situation is similar to the one confronted by the Supreme Court in Dukes and
before that in General Telephone Co. of the SW v. Falcon, 457 U.S. 147 (1982). The
Court recognized that there is a difference between (1) an individual’s claim that he or
she has been subjected to discrimination and (2) “the existence of a class of persons
who have suffered the same injury as that individual, such that the individual’s claim will
share common questions of law or fact and the individual’s claim will be typical of the
class claims.” Falcon, 457 U.S. at 157-58. There are two means of bridging the gap.
The first – utilization of a biased testing procedure or other discrete and universally
applicable method or standard – is not applicable in this case because there is no
universal method or standard alleged. The second method requires “significant proof”
that Defendants operated under a general policy of discrimination. Dukes, 131 S. Ct. at
2553. Plaintiffs have not presented significant proof – at best, they have presented
proof that Defendants sometimes employed the practices they have identified. The
problem is that – like the plaintiffs in Dukes – they have no evidence demonstrating the
extent to which these practices were actually employed. Cf. Dukes, 131 S. Ct. at 255354 (plaintiffs’ evidence did not establish with specificity how regularly stereotypes and a
policy of discretionary decision combined to play a meaningful role in defendant’s
employment decisions). Absent evidence as to the frequency with which the
discriminatory practices were employed, Plaintiffs are unable to demonstrate the degree
of commonality necessary to bridge the gap between their individual situations and a
common question with a common answer. Cf. id. at 2554-55.
Even if commonality were satisfied, Plaintiffs’ proposed class presents a problem
with typicality. Typicality and commonality are related concepts (and both are related to
adequacy). Falcon, 457 U.S. at 157-58. “Typicality . . . requires a demonstration that
there are other members of the class who have the same or similar grievances as the
plaintiff.” Tate v. Weyerhaeuser Co., 723 F.2d 598, 608 (8th Cir. 1983), cert. denied,
469 U.S. 847 (1984) (quotation omitted). Combs and Williams have presented
allegations that, if believed by the jury, might persuade the jury that they were ejected
from the District based on their race. However, neither Combs nor Williams have
presented any evidence that the individuals who started the confrontations culminating
in their ejection were the so-called “rabbits” to which they have repeatedly referred.
Thus, their claims of discriminatory ejection are not typical of all class members’ claims.
Moreover, neither Combs nor Williams present a claim of harassment: Combs alleges
he was denied entry, and both Combs and Williams allege they were ejected, but
neither presents a claim of harassment falling short of ejection or barred entry. Thus,
their claims are not typical of those class members who claim harassment that did not
involve ejection or denial of entry.4
B. Rule 23(b)(3)
Even if the issues discussed above could be obviated, Plaintiffs’ proposal
presents insurmountable problems that preclude qualification under Rule 23(b). As
stated earlier, a would-be class must satisfy the requirements of Rule 23(a) and qualify
under one of the categories under Rule 23(b). Plaintiffs suggest their proposed class
satisfies Rule 23(b)(3); the Court holds otherwise.
Rule 23(b)(3) requires
1) the common questions of law and fact found to exist under Rule 23(a)(2)
“predominate over any questions affecting only individual members,” and
2) “a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.”
The rule then sets forth factors to be considered in evaluating these two matters; as
related to this case, the most significant factor is the “likely difficulties in managing a
class action.” Rule 23(b)(3)(D).
The common questions – assuming they are common within the meaning of Rule
23(a)(2) – do not predominate over the individual questions. The mere presence of
These observations also suggest difficulties with Plaintiffs’ ability to adequately
represent the class, but there is no need to discuss this issue further.
individual issues does not automatically destroy predominance; the Court must compare
the common questions to the individual questions to determine if the latter predominate
over the latter. E.g., Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 815–16
(7th Cir. 2012); Beattie v. CenturyTel, Inc., 511 F.3d 554, 564 (6th Cir. 2007), cert.
denied, 555 U.S. 1032 (2008); Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d
32, 40 (1st Cir. 2003); Bertulli v. Independent Ass'n of Continental Pilots, 242 F.3d 290,
298 (5th Cir. 2001). In conducting this comparison, the Court must focus particularly on
“whether a prima facie showing of liability can be proved by common evidence or
whether this showing varies from member to member.” Halvorson v. Auto-Owners Ins.
Co., 718 F.3d 773, 778 (8th Cir. 2013). In addition, “the need for detailed and individual
factual inquiries concerning the appropriate remedy for any violation still weighs strongly
against class certification.” In re St. Jude Med., Inc., 522 F.3d 836, 840 (8th Cir. 2008).
Plaintiffs’ arguments presume that merely proving one or more Defendants
intended to discriminate means each class member will prevail. This is incorrect. Each
class member must prove they were actually the victim of such discrimination. For
instance, with respect to the claim involving rabbits: it is not enough for Plaintiffs to
convince a jury that Defendants employed “rabbits” to pick fights in order to
manufacture an excuse to eject a customer – each class member must prove that this is
actually what happened to him or her. This requires an individualized examination of
the circumstances surrounding each and every ejection. It may be that some were
ejected for discriminatory reasons while others were ejected for legitimate,
nondiscriminatory reasons. Only those who were ejected for discriminatory reasons are
entitled to a recovery. Significantly, Defendants are entitled to “individualized
determinations” of each class member’s eligibility to recover monetary damages; absent
such an individualized determination, there is no basis for awarding relief. Dukes, 131
S. Ct. at 2560-61.
Conceptually, the common issues are dwarfed by the individual issues. This is
true as a practical matter as well. Individualized testimony about each person’s
ejection, harassment, or denied entry will be required. Plaintiffs recognize that each of
the 5,000 class members may have to testify and estimate they can relate their
individual circumstances in one or two hours each. Plaintiffs’ Suggestions in Support at
23. Assuming that this is accurate, and further assuming the low end of Plaintiffs’
estimate, this would require 5,000 hours of trial testimony – or, 625 trial days. In truth,
however, Plaintiffs’ estimation is woefully inadequate. It is doubtful that each class
member’s testimony (including cross-examination and redirect) will only be one hour. It
is also doubtful that each class member will be content with offering only their own
testimony to support their version of events; for instance, Williams will probably want
Combs to testify about the events surrounding his ejection. And, most importantly,
Defendants are entitled to bring their own witnesses to describe the events in question.
This means that for each class member, there will be multiple witnesses: the claimant,
any witnesses the claimant wishes to offer to support his/her version of events, and any
witnesses the Defendants wish to present to counter this testimony. Certification would
essentially require a separate trial to adjudicate each claimant’s situation. It will literally
take years to resolve these individualized issues, which means the common issues do
not predominate over the individual issues.
Rule 23(b)(3) sets forth a non-exhaustive list of factors to consider in determining
whether a class action is “superior to other available methods for fairly and efficiently
adjudicating the controversy.” One of these – “the likely difficulties in managing a class
action” – is of particular relevance to this suit. “[T]his consideration 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).
The Court has already addressed the need to essentially conduct 5,000
individual trials. This requires inordinate amounts of preparation by the attorneys, and a
degree of devotion to a single case that would be unprecedented for the Court. Most
significantly, the feasibility of asking a single jury to sit and hear the entire case from
beginning to end is simply impossible.5 As the undersigned wrote in connection with a
class less than half the size of the one Plaintiffs propose,
Plaintiffs cannot suggest that different juries be empaneled because the jury that
decides the case has to be the jury that heard and resolved the common issues – and if
The Court is also concerned that forcing the plethora of individual issues
into a class action constitutes a disservice to both potential class members
and the Defendant. Given the number, magnitude and importance of the
individual issues, certain class members' voices may be lost amidst the
sheer number of fellow plaintiffs—each with different stories to tell.
Conversely, the Defendant will be in a position where it has to prepare for
nearly 2000 different trials simultaneously. Finally, neither party can
seriously expect a jury's full attention and consideration for the length of
such proceedings, nor can they expect evenhanded, consistent treatment
from beginning to end.
Smith, 174 F.R.D. at 98. This does not mean that large classes are per se disallowed.
The problem is the sheer number of individualized issues that must be resolved. There
are 5,000 stories to tell, not one – and therein lies the difference between a permissible
class action and what Plaintiffs propose.
Plaintiffs seemingly anticipate this problem by suggesting that the jury can simply
determine whether Defendants are liable and award a sum necessary to compensate
the class as whole. Class members can then file claims with the fund and thereby
prove to a Special Master that they are entitled to an award from the fund and
demonstrate the amount they are entitled to receive. This procedure is impossible for at
least two reasons. First, as discussed above, liability and damages are highly
individualized questions. Thus, the jury cannot ascertain liability or the extent of
damages without considering the individual events involving each and every class
member. Second, Defendants are entitled to a jury’s resolution of all factual issues
related to liability and damages.
Plaintiffs also suggest that a class action is a superior method of resolution
because this is a negative value suit – that is, actual damages are likely to be less than
the cost of bringing the suit. The Court is not convinced this is true, but if this is a
negative value suit it is unlikely that each of the class members will submit to
depositions and produce the witnesses necessary to establish facts attendant to their
individual situations – which means certification does not advance any interests
Plaintiffs suggest this is not necessary, then Plaintiffs will have essentially confessed
the common issues are not important and, hence, do not predominate over the
whatsoever. The Court is also not convinced that there is any “stigma” associated with
bringing a suit such as this, much less that any such stigma is strong enough to be a
factor favoring the superiority of certification. Regardless, any factors that may suggest
a class action is superior to other methods are dwarfed by the manageability concerns,
so on balance certification is not a superior means of resolving these disputes.
Plaintiffs present a variety of arguments contending that discrimination and
racism are evils that have effects beyond the immediate victims or targets. The Court
has no doubt this is true: society as a whole is diminished when discrimination occurs.
However, in presenting this argument, Plaintiffs do not explain how it advances any of
the Rule 23 factors. From a sociological perspective, the community as a whole may
have been harmed; this observation does not mean that Plaintiffs can pursue legal
claims on behalf of society as a whole, nor does it mean that the law permits a class to
be certified.6 Plaintiffs also seem intent on putting Defendants on trial in the abstract for
their wrongdoing, but this is not the object of litigation. Plaintiffs may put Defendants on
trial for what Defendants did to Plaintiffs. Plaintiffs’ arguments suggest to the Court that
Plaintiffs may have lost sight of this distinction.
The Motion for Class Certification is denied.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: February 3, 2015
It should be noted that the entire analysis would be different if Plaintiffs
were seeking only injunctive relief and attempting to proceed under Rule 23(b)(1)
or Rule 23(b)(2). However, Plaintiffs are not pursuing this tactic.
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