BELL et al v. CHESWICK GENERATING STATION, GENON POWER MIDWEST, L.P.

Filing 47

ORDER granting 44 Motion to Strike Class Allegations. For the reasons stated in the Memorandum Order, Defendant's Motion to Strike Class Allegations (Doc. 44 ) is GRANTED. IT IS HEREBY ORDERED that the Complaint's prayer for certificati on of a Plaintiff Class is STRICKEN without prejudice to a future motion by Plaintiffs for leave to amend the Complaint. If Plaintiffs intend to amend the Complaint, a Motion for Leave to Amend the Complaint with an attached proposed Amended Complaint shall be filed on or before February 5, 2015. IT IS SO ORDERED. Signed by Judge Cathy Bissoon on 01/28/15. (rld)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KRISTIE BELL and JOAN LUPPE,
Plaintiffs,
v.
CHESWICK GENERATING STATION,
GENON POWER MIDWEST, L.P.,
Defendant.

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Civil Action No. 12-929
Judge Cathy Bissoon

MEMORANDUM ORDER
For the reasons that follow, Defendant’s Motion to Strike Class Allegations (Doc. 44)
will be granted.
I. MEMORANDUM
BACKGROUND
Kristie Bell and Joan Luppe are the named Plaintiffs (“Plaintiffs”) in a class action
complaint (the “Complaint”) filed in the Court of Common Pleas of Allegheny County against
Cheswick Generating Station, GenOn Power Midwest, L.P. (“Defendant”) in April of 2012.
Compl. (Doc. 1, Ex. 2). Defendant removed the case to the Western District of Pennsylvania on
July 6, 2012. Notice of Removal (Doc. 1). Defendant filed a Motion to Dismiss the Complaint
for failure to state a claim, which was granted by District Court Judge McVerry on October 12,
2012. Bell v. Cheswick Generating Station, 903 F. Supp. 2d 314 (W.D. Pa. 2012) (holding that
property owners' putative class action against power company, alleging various claims, including
nuisance and negligence, relating to coal power plant emissions were preempted by the Clean
Air Act). Plaintiffs timely appealed to the Third Circuit Court of Appeals. Notice of Appeal
(Doc. 16). On August 20, 2013, the Third Circuit reversed and remanded the case back to

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District Court. Bell v. Cheswick Generating Station, 734 F.3d 188 (3d Cir. 2013) (finding that,
as a matter of first impression, the Clean Air Act did not preempt private property owners’
putative class action state tort claims). United States District Court Judge McVerry recused
himself from the case, and it was transferred to the undersigned. Defendant appealed the
decision of the Third Circuit, petitioning the Supreme Court for Writ of Certiorari. See GenOn
Power Midwest, L.P. v. Bell, 134 S.Ct. 2696 (2014). That Petition was denied on January 8,
2014, and the case was reopened in the Western District of Pennsylvania. Id.; Notice of
Reinstatement of Case (Doc. 30).
Before the Court today is Defendant’s Motion to Strike Class Allegations from the
Complaint. (Doc. 44). Plaintiffs seek damages and injunctive relief under the theories of
nuisance, negligence and recklessness, trespass and strict liability, for “invasion of Plaintiffs’
property” by particulates, odors, air contaminants, and chemicals, which cause Plaintiffs to suffer
property damage.1 Compl. at ¶¶ 37-41. The putative class (the “Class”) is comprised of “at
least” 1,500 individuals who own or inhabit residential property within a one mile radius2 of
Defendant’s Generating Station, a coal-fired electrical generation facility in Springdale,
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Plaintiffs do allege in the Complaint that Defendant’s particulates and air contaminants invaded
“Plaintiffs’ person and property.” See, e.g., Compl. at ¶ 58. Defendant characterizes Plaintiffs’
Complaint as one alleging both personal injury and property damage. Def.’s Br. (Doc. 45) at 1.
Plaintiffs state in their Response that they are not alleging personal injury claims. Pl.’s Resp. at
5.
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Defendant accurately notes that Plaintiff inconsistently states that Class members reside within
a one-mile diameter, and one-mile radius, of the Plant. Compl. at ¶ 21. Plaintiffs clarify this
error in their Response, stating that they intend the geographic region to encompass a circle
around the Plant with a one-mile radius. Pl.’s Resp. (Doc. 46) at 8. Clarification in a briefing
alone does not cure a defect in the pleadings. Bell v. City of Philadelphia, 275 Fed. Appx. 157,
160 (3d Cir. 2008) (stating that a plaintiff “may not amend his complaint through arguments in
his brief in opposition to a motion for summary judgment”). If Plaintiffs seek leave to amend the
Complaint, the Court expects that they will correct this error in order to address Defendant’s
charge that a class so inconsistently defined lacks the requisite “particularity.” See Def.’s Br. at
11-12.
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Pennsylvania (the “Plant”), “who have suffered similar damages to their property by the invasion
of particulates, chemicals, and gases from Defendant’s facility which thereby caused damages to
their real property.” Compl. at ¶¶ 8(b), 20, 28.
ANALYSIS
Defendant requests that the Court strike Plaintiffs’ class allegations from the Complaint,
pursuant to Federal Rules of Civil Procedure 23(c)(1)(A) and 12(b). Def.’s Br. at 24. This
action would deny Plaintiffs’ class certification prior to completion of discovery and prior to
Plaintiffs filing a Motion for Class Certification. Id.
A. Legal Authority to Strike Class Allegations Pre-Discovery
As an initial matter, the authority to strike class allegations stems from Federal Rules of
Civil Procedure 12(f), 23(c)(1)(A), and 23(d)(1)(D), not 23(c)(1)(A) in conjunction with 12(b) as
stated by Defendant. See Gray v. BMW of North America, LLC, 22 F.Supp.3d 373 (D.N.J.
2014) (citing Fed. R. Civ. P. 12(f) as authority for the District Court to strike class allegations);
In re Paulsboro Derailment Cases, 2014 WL 1371712, *2 (D.N.J. 2014) (“A motion to strike
class allegations implicates Federal Rules of Civil Procedure 12(f) and 23(c)(1)(a). . . . A further
procedural vehicle is provided by Federal Rule of Civil Procedure Rule 23(d)(1)(D), which
provides that a ‘court may issue orders that ... require that the pleadings be amended to eliminate
allegations about representation of absent persons and that the action proceed accordingly.’”);
see also 1 Joseph M. McLaughlin, McLaughlin on Class Actions § 3:4 (11th ed. 2014) (Noting
that Federal Rule of Civil Procedure 23(d)(1)(D) “expressly authorizes a motion to strike class
action allegations by authorizing the court to issue an order ‘requiring that the pleadings be
amended to eliminate allegations about representation of absent persons . . . .’” Rule 12(f)
permits a district court to “strike from a pleading an insufficient defense or any redundant,

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immaterial, impertinent, or scandalous matter,” and Rule 23(c)(1)(A) directs the court to make
the class certification determination “[a]t an early practicable time.” Fed. R. Civ. P. 12(f),
23(c)(1)(A).
These Rules, together, provide authority for the Court to strike the class allegations from
Plaintiffs’ Complaint, if appropriate, even before Plaintiffs move for class certification. The
Court of Appeals for the Third Circuit has acknowledged that there are a “rare few [cases] where
the complaint itself demonstrates that the requirements for maintaining a class action cannot be
met,” although, “[i]n most cases, some level of discovery is essential.” Landman & Funk PC v.
Skinder-Strauss Assoc., 640 F.3d 72, 93, 93 at n. 30 (3d Cir. 2011). Class allegations may be
stricken only when no amount of discovery will demonstrate that the class can be maintained.
Goode v. LexisNexis Risk & Info. Analytics Group, Inc., 284 F.R.D. 238, 244 (E.D. Pa. 2012)
(citing Thompson v. Merck & Co., Inc., 2004 WL 62710 (E.D. Pa. 2004)); see also Woodard v.
FedEx Freight E., Inc., 250 F.R.D. 178, 182 (M.D. Pa.2008) (noting that a “district court will
strike class allegations without permitting discovery or waiting for a certification motion where
the complaint and any affidavits clearly demonstrate that the plaintiff cannot meet the
requirements for a class action”).
Plaintiffs argue that Defendant’s Motion is untimely, as Defendant cites Federal Rule of
Civil Procedure 12(b) as partial authority for its Motion, and the time for Motions to Dismiss has
passed. Pl.’s Resp., 3-4. Plaintiffs are correct that Rule 12(b) is inappropriately cited as
authority for Defendant’s Motion. See supra. Thus it cannot be the case that said rule
simultaneously time-bars the motion; the Federal Rules indeed give Defendant room to file such
a motion, and the Court the power to rule upon it. Id.

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B. Legal Standard
Plaintiffs set forth the Rule 12(b)(6) standard as that which governs the Court’s review of
Defendant’s Motion. Pl.’s Resp., 3. Courts are divided on the question of the appropriate
standard of review for pre-discovery motions to strike class allegations, and the Third Circuit has
not spoken on the issue. See, e.g., Bessette v. Avco Fin. Serv., Inc., 279 B.R. 442, (D.R.I. 2002)
(holding that in an evaluation of a motion to strike class allegations “the burden is not on the
party seeking class certification[;] rather, as the non-moving party, all reasonable inferences must
be construed in [its] favor”); Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 675-76 (7th Cir.
2001) (“The proposition that a district judge must accept all of the complaint’s allegations when
deciding whether to certify a class cannot be found in Rule 23 and has nothing to recommend it .
. . . Before deciding whether to allow a case to proceed as a class action, therefore, a judge
should make whatever factual and legal inquiries are necessary under Rule 23.”). The Court is
persuaded by the reasoning of the Court of Appeals for the Seventh Circuit, as well as that of the
vast majority of District Courts in this circuit, i.e., accelerating the class certification question
does not alter the traditional Rule 23 burdens, and Plaintiffs must advance a “prima facie
showing that the class action requirements of Fed.R.Civ.P. 23 are satisfied or that discovery is
likely to produce substantiation of the class allegations.” Trunzo v. Citi Mortg., 2014 WL
1317577, *5 (W.D. Pa. 2014) (internal citations omitted). Compare Id., and Szabo, 249 F.3d at
675-76, and Royal Mile Co., Inc., v. UPMC, --- F.Supp.2d ----, 2014 WL 4187129 (W.D. Pa.
2014) (holding that “regardless whether the defendant files a motion to strike class allegations
pursuant to Federal Rule of Civil Procedure 12(f) based upon insufficient class allegations in a
complaint, or a plaintiff files a motion to certify a class pursuant to Rule 23 based upon a more

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fully developed record, the plaintiff has the burden to prove that the requirements set forth in
Rule 23 are met, and the court must accordingly apply Rule 23”), with Luppino v. MercedesBenz USA, LLC, 2013 WL 6047556 (D.N.J. 2013) (“When evaluating a motion to strike
allegations of a complaint, the court must accept as true all factual allegations in the complaint
and view all reasonable inferences in the light most favorable to Plaintiffs, just as on a motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6).”), and In re Paulsboro Derailment Cases, 2014 WL
1371712, *2 (“[W]here a motion is brought in advance of the close of class discovery, it is
properly the defendant who must bear the burden of proving that the class is not certifiable.”)
(internal citations omitted). In this instance, the burden is on Plaintiffs to demonstrate that the
requirements of Rule 23 are satisfied.
C. Allegation of “Fail-Safe” Class
Defendant attacks the definition of the class itself, alleging that Plaintiffs have
impermissibly alleged a “fail-safe” class, defining “the members as including all, and only, those
who satisfy the elements of the class’ cause(s) of action.” Def.’s Br. at 9. To be certified, a class
must satisfy four explicit requirements set forth in Federal Rule of Civil Procedure 23(a): 1)
numerosity; 2) commonality; 3) typicality; and 4) adequacy of representation. In addition, courts
have incorporated the “implicit” requirement that a class be “definite” or “ascertainable.” See
Byrd v. Aaron’s, Inc., 2014 WL 1316055, *3 n. 3 (citing Marcus v. BMW of N. America, 687
F.3d 583, 596 (3d Cir. 2012)). “Before delving into the ‘rigorous analysis’ required by Rule 23,
a court first should consider whether a precisely defined class exists and whether the named
plaintiffs are members of the proposed class.” Bentley v. Honeywell Int'l, Inc., 223 F.R.D. 471,
477 (S.D.Ohio 2004). In order for a class to be ascertainable, the class must be precisely defined
“with reference to objective criteria” and “there must be a reliable and administratively feasible

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mechanism for determining whether putative class members fall within the class definition.”
Hayes v. Wal–Mart Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2013) (quoting Marcus, 687 F.3d at
593).
When a class is fail-safe – i.e., it “requires the court to address the central issue of
liability in the case,” – it is impermissibly vague and “may be untenable.” Jackson v. Se. PA
Transp. Auth., 260 F.R.D. 168, 182 (E.D. Pa. 2009); see also William H. Rubenstein, Newberg
on Class Actions § 3:6 (5th ed.) (“Class definitions that require a court to decide the merits of
prospective individual class members’ claims to determine class membership—sometimes
referred to as “fail-safe” classes—may also run afoul of the definiteness requirement.”). When a
class definition involves an ultimate issue of liability, the court must conduct mini-hearings in
order to determine who belongs within the class and who does not, rendering the process
administratively infeasible and therefore unascertainable. See Kondratik v. Beneficial Consumer
Disc. Co., 2006 WL 305399, *10 (E.D. Pa. 2006) (“[B]ecause mini-hearings on the merits are
required here to determine class membership, this class definition is untenable and cannot be
certified.”); Hayes, 725 F.3d at 355.
The Class in the instant matter is defined as follows:
All unnamed Plaintiff potential Class Members are residents or homeowners who
live or own real estate within one (1) mile of the Cheswick Facility who have
suffered similar damages to their property by the invasion of particulates,
chemicals, and gases from Defendant’s facility which thereby caused damages to
their real property.
Compl. at ¶ 28. The Court finds that the Class, as stated, is indeed “fail-safe.” In order to
determine whether one is a member of the Class, the Court must inquire into whether: 1) the
individual lives within one mile of the Plant; 2) he/she has suffered “similar damages” to their
property; 3) those damages resulted from the “invasion” of their property by particulates,

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chemicals and gases; and 4) the particulates, chemicals and gases originated from Defendant’s
Plant. These determinations would most certainly require mini-hearings into the particular facts
of each purported class member’s situation in order to determine ultimate issues of liability –
damage and causation. As such, the asserted “Class” is “fail-safe” and unascertainable and will
be stricken from the Complaint. See Kondratik, 2006 WL 305399 at*10; Hayes, 725 F.3d at
355. Albeit in dicta, and post-discovery, the Western District of Kentucky made a similar
finding after conducting a persuasive analysis:
Plaintiffs’ proposed class definition limits membership to those “whose property
was damaged by noxious odors, fallout, pollutants and contaminants which
originated from the LG & E Cane Run facility.” This definition seems to make the
ultimate issue in the case (property damage at the hands of LG & E) a component
of the class definition, thereby front-loading the individualized damage
determinations which ordinarily would be reserved until later in the proceedings.
To properly define the class as Plaintiffs propose it, the Court would be required
to determine on a person-by-person basis whether property damage had occurred
and whether LG & E was responsible, which would seem to completely subsume
the merits phase of the case into the class certification phase. This approach has
little to recommend it, and runs contrary to the admonition that a class definition
“should avoid ... terms that depend on resolution of the merits.”
Burkhead v. Louisville Gas & Elec. Co., 250 F.R.D. 287, 293-94 (W.D. Ky. 2008) (emphasis in
original) (quoting Manual for Complex Litigation (Fourth) § 21.222 (2004)). Plaintiffs’ Class
similarly “front-loads” the instant proceedings, requiring that the Court reach the merits of the
case at the class certification stage, contrary to law and policy.
In addition, a benchmark of having suffered “similar damages” is independently
problematic:
A “similarity” restriction presents its own problems, because a determination of
similarity would not be based on objective criteria, as Marcus and other recent
precedents demand, but on subjective degrees of likeness. Determining the degree
of similarity likewise would require a[n individual] analysis of each [proposed
class member’s situation], making the class not readily ascertainable.

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Lipstein v. UnitedHealth Group, 296 F.R.D. 279, 291 (D.N.J. 2013). The incorporation of a
standard that turns on subjective criteria is administratively infeasible and additionally renders
the Class un-certifiable. Not only is the “similarity criteria” subjective, but it further impedes
into the area of ultimate issue determination, as the “damages” alleged by Plaintiffs are, inter
alia, the result of the very nuisance and trespass that they allege. Compl.; see also Def.’s Br. at
12. If Plaintiffs were to move forward with the “Class” as constructed, the Court would be
forced to first determine the ultimate issue of damages suffered by Plaintiffs, and then compare
all potential class members to that subjective standard. Such a class is not ascertainable or
workable.
For the reasons set forth supra the Court will grant Defendant’s Motion to Strike Class
Allegations from the Complaint. As the Court has determined that the asserted Class, as
currently styled, is “fail-safe,” there is no need to reach the merits of Defendant’s additional
arguments in favor of striking the class allegations.
D. Plaintiffs’ Shifting Class Definition
It is noted by the Court that Plaintiffs respond to Defendant’s arguments largely by
redefining the putative class. The Court presumes that this redefinition reflects, in part,
Plaintiffs’ recognition that the Class as constructed in the Complaint in fact suffers from some or
all of the defects alleged by Defendant. Contrary to the Complaint, Plaintiffs’ Response states
that “all owner-occupants and renters of residential property in the class area, preliminarily3
defined as the area within one mile of the Cheswick facility, have in fact suffered similar
property damage. Membership in the class, like any appropriate class, will be ascertained by
reference to objective criteria, here geographic criteria, and nothing else.” Pl.’s Resp. at 8
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As a point of correction, nothing about a class definition as stated in a complaint may be
“preliminary.” Plaintiffs must carefully select the class construction they so choose, and litigate
their claim accordingly.
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(emphasis in original). Plaintiffs’ description of the Class in their Response clearly is
inconsistent with that of the Complaint. It appears that Plaintiffs are attempting to account for
Defendant’s arguments by amending the Complaint in their briefing; this is impermissible. Cf.
Bell v. City of Philadelphia, 275 Fed. Appx. 157, 160 (3d Cir. 2008) (stating that a plaintiff “may
not amend his complaint through arguments in his brief in opposition to a motion for summary
judgment”).
Under Rule 15, the Court should “freely” grant Plaintiffs leave to amend the complaint,
unless leave to amend would be futile. Fed. R. Civ. P. 15; see also Royal Mile Co., Inc., v.
UPMC, 2014 WL 4187129, *20 (acknowledging the Court’s ability to grant leave to amend the
complaint in the context of a motion to strike class allegations). If Plaintiffs amend the
Complaint in accordance with their Response and in light of Defendant’s arguments – proposing
a Class that is defined solely by objective, geographic criteria, as they state – such an amendment
may not be futile. While the Court does not render any opinion with respect to whether or not
the proposed amended class would ultimately merit certification, the amendment would directly
respond to Defendant’s concerns regarding their current class definition.
An amendment to Plaintiffs’ class, as contemplated in their Response, could cure
Defendant’s concerns regarding the “fail-safe” nature of the current Class. A class defined by a
clear, objective criteria – geographic terms, in this instance – would not necessitate minihearings or require the Court to delve into the merits of the case at the class certification stage.
A class so defined could not be said to be unascertainable, or untenable such that no amount of
discovery could support it. Goode, 284 F.R.D. at 244; see also Woodard, 250 F.R.D. at 182.
Thus, an amendment would not be futile with respect to Defendant’s fail-safe arguments. See
Fed. R. Civ. P. 15.

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Defendant further argues that Plaintiffs’ Class is insufficiently particular. Def.’s Br. at
11. This argument turns on the inconsistency within the Complaint regarding Plaintiffs’
simultaneous reference to a geographic area surrounding the Plant with a one-mile diameter, and
a one-mile radius. Id. As Plaintiffs clarify in their Response that they intended to define the
geographic scope of the allegedly affected area as having a one-mile radius, not diameter, from
the Plant outward, an amendment to the Complaint would not be futile with respect to this
argument either. See supra at n. 2.
Lastly, Defendant posits that the Class as currently constructed elevates individualized
issues over common claims. Def.’s Br. at 12-24. The gravamen of this argument turns on
Class’s reference to the putative class members’ suffering similar damages to that of the
Plaintiffs – i.e., loss of use of enjoyment of their properties, diminution in property value, and
“mental anguish, suffering, embarrassment, humiliation, distress, agony and other related
nervous conditions and emotional sequelae” – as a result of proximity to Defendant’s Plant.
Compl. ¶¶ 44-74. An amendment to the Class as framed by Plaintiffs, which would omit the
reference to damages and turn solely on the objective criteria of geographic proximity to the
Plant, would further cure this alleged defect. These amendments would result in Plaintiffs’
heavy burden at the post-discovery class certification stage of these proceedings, to be sure. See,
e.g., Burkhead, 250 F.R.D. at 292 (“Plaintiffs have presented no evidence from which the Court
could infer that similar circumstances, whether ultimately attributable to [Defendant] or not, exist
throughout the proposed two mile radius of [Defendant’s] facility class area. Though Plaintiffs
repeatedly describe the proposed class definition as ‘objectively reasonable,’ they offer no
evidence whatsoever that the airborne contaminants might have spread in all directions from
[Defendant’s] facility for a distance of up to two miles.”); Boggs v. Divested Atomic Corp., 141

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F.R.D. 58, 61–62 (S.D.Ohio 1991) (“[t]he fact that radioactive materials have escaped the
confines of the plant, is, by itself, not sufficient to justify defining the class to include everyone
who lives or owns property within six miles of the plant's boundaries. Although the class
definition is subject to refinement . . . there should be some evidence at this stage of the case that
plaintiffs' definition is reasonable. This requires an examination of the plaintiffs’ evidence of the
dispersion of hazardous emissions.”). Nonetheless, amendment could cure the defects alleged at
this early stage of the proceedings, considering the legal standard. Goode, 284 F.R.D. at 244; see
also Woodard, 250 F.R.D. at 182.
CONCLUSION
In light of Defendant’s arguments regarding “fail-safe” classes, and Plaintiffs’ failure to
defend the Class as currently articulated in response to those arguments, the Court will grant
Defendant’s Motion to Strike the Class Allegations – as stated – from the Complaint. Fed. R.
Civ. P. 12(f), 23(c)(1)(A), 23(d)(1)(D). The Court is cognizant that an “order granting a motion
to strike class allegations is tantamount to a denial of class certification after a motion to certify.”
Royal Mile Co., Inc., v. UPMC, 2014 WL 4187129 at *20 (internal citations omitted). This
action, however, will be without prejudice to Plaintiffs’ amending the class allegations in their
Complaint.4 Fed. R. Civ. P. 15; see Zeiger v. Advance America, 2014 WL 7388365, *7 (D. Del.
2014) (granting Motion to Strike Class Allegations and granting leave to amend the class

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Absent unforeseen and extraordinary circumstances, no further amendments will be permitted.
Although, generally, leave to amend freely is given, this rule cannot be read so broadly as to
allow or require the Court and opposing parties to entertain endless requests for amendment.
The purpose of Federal Rule 15 is not “to make the complaint ‘a moving target,’” Minter v.
Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006), and any further requests for amendment
most likely will raise significant issues regarding undue delay and prejudice in this nearly threeyear-old case. Accordingly, if Plaintiffs choose to seek leave to amend the class allegations in
the Complaint, their second amended complaint must make a last, best effort to state any and all
allegations and viable claims that Plaintiffs intend to pursue in this lawsuit.
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allegations in the complaint). To the extent that Plaintiffs can cure the deficiencies in the
Complaint, they have until February 5, 2015, to do so.
II. ORDER
For the reasons stated above, Defendant’s Motion to Strike Class Allegations (Doc. 44) is
GRANTED.
IT IS HEREBY ORDERED that the Complaint’s prayer for certification of a Plaintiff
Class is STRICKEN without prejudice to a future motion by Plaintiffs for leave to amend the
Complaint.
If Plaintiffs intend to amend the Complaint, a Motion for Leave to Amend the Complaint
with an attached proposed Amended Complaint shall be filed on or before February 5, 2015.
IT IS SO ORDERED.

January 28, 2015

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

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