BENTON et al v. OMTRON USA, LLC D/B/A TOWNSENDS

Filing 42

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 08/16/2012.ORDERED THAT: 1. The motion of Stephen S. Schmidly and J. Brooke Schmidly for leave to file an amicus curiae brief (Doc. 32 ) is GRANTED; 2. Defendant Omtrons Motion for Class Certification (Doc. 25 ) is DENIED; and 3. Omtrons motion for an evidentiary hearing pursuant to Local Rule 23.1(b) and Plaintiffs' request for a hearing are DENIED. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOHN BENTON, et al.

)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
OMTRON USA, LLC,
Defendant.

No. 1:11-cv-840

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This

is

Plaintiffs

a

who

(“Omtron”).

breach
had

Before

of

contract

contracts
the

with

court

is

case

involving

Defendant
Omtron’s

over
USA,

Omtron

motion

100
LLC

to

require

Plaintiffs to proceed as a class pursuant to Federal Rule of
Civil

Procedure

Plaintiffs
replied

23(b)(3).

oppose

(Doc.

the

30).

(Doc.

motion
At

the

25;

(Docs.
court’s

28,

see
29),

Docs.

26,

27.)

and

Omtron

has

direction,

the

parties

provided additional briefing on the court’s authority to require
Plaintiffs to proceed as a class against their wishes.
Docs. 31, 33.)

(See

In addition, Stephen S. Schmidly and J. Brooke

Schmidly, counsel for plaintiffs in a related lawsuit against
Omtron, seek leave to file an amicus brief opposing Omtron’s
motion.

(Doc. 32.)

The court accepts the amicus brief, and for

the reasons set forth below denies Omtron’s motion.

I.

BACKGROUND
According to the complaint, Plaintiffs are poultry farmers

who,

prior

to

January

2011,

contracted

to

provide

labor

and

services for poultry integrator Townsends, Inc. (“Townsends”).
(Doc. 8 (complaint) ¶ 84.)

In December 2010, Townsends filed

for bankruptcy protection, and two months later Omtron purchased
its assets, including its contractual obligations, and continued
operations with Plaintiffs.

(Id. ¶¶ 85, 86.)

In June 2011, Plaintiffs and Omtron entered into new threeyear

contracts,

subject

to

each

of

the

parties’

terminate under specific conditions.

(Id. ¶¶ 88-90.)

on

that

July

27,

2011,

Omtron

announced

it

would

right

to

However,
close

its

processing plant and, about two weeks later, notified Plaintiffs
the contracts would be terminated.

(Id. ¶¶ 91-92.)

On October 3, 2011, Plaintiffs filed this action for breach
of contract against Omtron in North Carolina state court.
¶¶ 95-101.)

Omtron timely removed the case to this court and

now moves to require Plaintiffs to proceed as a class.
25.)

(Id.

(Doc.

Noting that this lawsuit and seven others pending in this

court “arise out of alleged breaches of contracts between Omtron
and

growers,”

Omtron

proposes

a

“Plaintiff-Farmers”

class

pursuant to Rule 23(b)(3) to include “[a]ll Farmers who entered
into a written contract with Omtron to maintain, raise and grow
chickens and chicks and who believe that Omtron breached that

2

written contract by closing its poultry processing operations or
by

allegedly

2011.”

terminating

the

written

contract

on

August

9,

(Id.; Doc. 26 at 2; Doc. 27 ¶ 3.)

The

parties’

initial

briefing

focused

on

the

four

pre-

requisites to class certification set out in Rule 23(a) and on
the requirements of Rule 23(b)(3).

On June 4, 2012, the court

ordered the parties “to brief whether, under Rules 23(a) and
23(b)(3), this court has the authority to certify a plaintiff
class upon the motion of a defendant under the circumstances of
this

case.”

The

parties

have

responded,

and

counsel

for

plaintiffs in Atkinson v. Omtron USA, LLC, Civil No. 1:11CV910
(M.D.N.C.),
supports

where

Plaintiffs’

certification.
II.

similar

contractual

opposition

claims

are

any

forced

to

brought,
class

The issue is now ripe for determination.

ANALYSIS
Omtron argues that this court should require Plaintiffs to

proceed as a class because the case meets the requisites for
class

treatment.

Conceding

that

Rule

23

does

not

expressly

address its situation, Omtron points out that it is not aware of
any authority that prohibits the court from requiring plaintiffs
to proceed as a class, subject to their right to opt out.
31 at 1-2.)

(Doc.

Omtron notes that courts have enforced plaintiffs’

motions for certification of a defendant class, citing (with one
exception) cases certifying under Rule 23(b)(1) or (b)(2), and

3

concludes that this is evidence that the court has discretion to
enforce a plaintiff class here.

(Id. at 2-3.)

Certifying a

plaintiff class in this case, Omtron contends, would not violate
due process.

(Id. at 4-7.)

In response, Plaintiffs and amici

contend that neither Rule 23 nor any case has ever authorized a
defendant to force a collection of plaintiffs to proceed as a
class when they are unwilling to do so.
The

court

interpretation,

begins,
with

as

Rule

it

23’s

does
“plain

for

any

statutory

meaning.”

Business

Guides, Inc., v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533,
540 (1991) (“We give the Federal Rules of Civil Procedure their
plain meaning.” (citation omitted)).

The court’s inquiry “is

complete if [it] find[s] the text of the Rule to be clear and
unambiguous.”

Id. at 540-41.

The court’s task is “to apply the

text, not to improve upon it.”

Pavelic & LeFlore v. Marvel

Entm’t Grp., 493 U.S. 120, 123, 126 (1989) (“[G]enerally with
[the Rules] as with a statute, ‘[w]hen we find the terms . . .
unambiguous,

judicial

inquiry

is

complete.’”

(citation

omitted)).
Rule 23(a) provides that “[o]ne or more members of a class
may sue or be sued as representative parties on behalf of all
members” provided certain prerequisites are met and the action
falls under one or more of the three types of class actions
permitted by the Rule.

The Rule thus contemplates two groups of

4

litigants proceeding as a class:

those who “may sue,” and those

who “may . . . be sued.”
As to the former group, the phrase “may sue” is modified by
“[o]ne or more members of a class.”

The plain wording of the

Rule, therefore, authorizes members of the class to sue.
Doc. 31 at 1.)

(See

The Rule does not authorize others to force

unwilling class members to sue.

Here, no Plaintiff or member of

a putative class has expressed any desire to sue as a class.
Thus, Omtron’s request does not fall within the plain terms of
this portion of the Rule. 1
The Rule’s reference to the latter group, those who “may
. . . be sued,” contemplates cases where a plaintiff suing a
group of defendants (or a defendant counterclaiming against a
group of plaintiffs) seeks to have them named as a class.

By

its express terms, the Rule does not authorize a party being
sued to seek to have its adversaries proceed as a class against
it.

Omtron

applying

it

certification

nevertheless
for
by

the
the

action proceedings.”

relies

on

this

proposition

that

non-class

party

a
is

(Doc. 31 at 2-3.)

1

provision

and

cases

“[r]equest

for

class

in

class

permitted

This is true to the

This same expression of the Rule is found in Rule 23(c)(1)(A), which
provides, with emphasis added, that “[a]t an early practicable time
after a person sues or is sued as a class representative, the court
must determine by order whether to certify the action as a class
action.”
This language recognizes only two scenarios: (1) where “a
person sues . . . as a class representative”; and (2) where “a person
. . . is sued as a class representative.”

5

extent provided by the Rule.

The cases relied upon by Omtron

(Doc. 31) involve parties advancing a claim who seek to have
their

opposition

straightforward

designated

as

a

class

applications

of

the

and

Rule. 2

reflect
While

merely

in

those

circumstances a party being sued may be unwilling to proceed as
a class, the Rule expressly authorizes the court to require them
to

do

so.

So,

the

cases

upon

which

Omtron

relies

are

inapposite.
Omtron

rightly

points

out

that

this

court

has

discretion” in determining whether to certify a class.
at 5.)

“great

(Doc. 31

A court, however, cannot exercise discretion contrary to

the plain language of a statute or rule.

E.g., Spine Solutions,

Inc. v. Medtronic Sofamor Danek USA, Inc., 620 F.3d 1305, 1320
(Fed.

Cir.

imposing

2010)

(holding

extraterritorial

court

abused

restraints

its

contrary

discretion
to

the

in

plain

language of a statute).
Omtron further points to Rule 23(a)(4)’s requirement that
there be a fair and adequate class representative to protect the
interests of the class and notes that this provision has been
2

Further, the cited cases were brought pursuant to Rule 23(b)(1) or
Rule 23(b)(2) and not, as in this case, pursuant to Rule 23(b)(3).
See Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266, 269 (2d Cir.
2005) (noting district court certified a defendant class under Rule
23(b)(1)(B)); Doe v. Miller, 216 F.R.D. 462 (S.D. Iowa 2003)
(certifying defendant class under Rule 23(b)(1)(A)); Autry v.
Mitchell, 420 F. Supp. 967, 969 (E.D.N.C. 1976) (certifying defendant
class of district attorneys in constitutional challenge to state
statute, apparently pursuant to Rule 23(b)(2)).

6

construed as not to require a willing representative “but merely
an adequate one.”
F.R.D.

50

evidence

(E.D.N.Y.
that

appointed.
Monaco.

(Doc. 31 at 3 (citing Monaco v. Stone, 187

Rule

1999)).)
23

Omtron

permits

an

contends

that

involuntary

this

is

to

be

class

That is true in a Rule 23(b)(2) class action, like

Unlike the situation in Monaco, however, certification

of the proposed class here would require a willing party because
Omtron moves for certification pursuant to Rule 23(b)(3).
25 ¶ 3.)

(Doc.

Upon certification, the court would be required to

give notice that it “will exclude from the class any member who
requests exclusion.”

Fed. R. Civ. P. 23(c)(2)(B)(v); see Parker

v. Crown, Cork and Seal Co., Inc., 677 F.2d 391, 393 (4th Cir.
1982) (noting members of a Rule 23(b)(3) class “have a right to
‘opt out’ of the class”), aff’d, 462 U.S. 345 (1983).
present

case,

every

named

Plaintiff

opposition to proceeding as a class.

has

already

In the

noted

its

Certification would run

counter to promotion of judicial economy and render the class
action device ineffective as a result of numerous opt-outs by
individual defendants.

Cf. In re Integra Realty Res., Inc., 354

F.3d 1246, 1266 (10th Cir. 2004) (noting “a general preference
for certifying defendant classes under Rule 23(b)(1) or (b)(2)
rather

than

(b)(3)

in

order

to

promote

judicial

economy

and

prevent the class action device from becoming ineffective as a
result of numerous opt-outs by individual defendants.” (citing 2

7

Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 4:64
(4th ed. 2002))).
In the end, Omtron fails to cite a single case where a
court certified, or recognized it could certify, a plaintiff
class pursuant to a defendant’s motion.

The best Omtron can do

is assert that it can find no case to the contrary.
2.)

(Doc. 31 at

Sometimes there is a very good reason there are no cases

supporting

an

particularly

argument.

in

The

lack

light

the

plain

of

of

a

single

language

of

case
Rule

here,
23(a),

provides a blinding glimpse of the obvious: Omtron’s position is
wholly

unsupported.

As

a

result,

of

Rule

Omtron’s

motion

will

be

not

permit

a

denied. 3
III. CONCLUSION
The

plain

language

23(a)

does

defendant to seek certification of an unwilling plaintiff class
in this case.

Omtron’s motion also seeks a result that would be

ineffective and run counter to the goals of the class action
device.
IT IS, THEREFORE, ORDERED THAT:
1.

The

motion

of

Stephen

S.

Schmidly

and

J.

Brooke

Schmidly for leave to file an amicus curiae brief (Doc. 32) is
GRANTED;
3

The court does not reach the parties’ arguments regarding the four
pre-requisites of Rule 23(a) or the application of Rule 23(b)(3) on
the facts. The court thus offers no opinion whether this case could
proceed as a class action had Plaintiffs sought class treatment.

8

2.

Defendant

Omtron’s

Motion

for

Class

Certification

(Doc. 25) is DENIED; and
3.

Omtron’s motion for an evidentiary hearing pursuant to

Local Rule 23.1(b) (Doc. 25 at 2) and Plaintiffs’ request for a
hearing (Doc. 28 at 3) are DENIED.

/s/
Thomas D. Schroeder
United States District Judge
August 16, 2012

9