Mullis v. Mountain State University, Inc.
Filing
55
MEMORANDUM OPINION AND ORDER: Plaintiff's failure to establish that the proposed class is so numerous that joinder is impracticable is sufficient to dispose of plaintiff's motion. As such, the court DENIES Plaintiff's 32 MOTION for Class Certification. Signed by Judge David A. Faber on 3/27/2014. (cc: attys; any unrepresented party) (msa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BECKLEY
REBECCA MULLIS, individually
and on behalf of a class of
similarly situated persons
Plaintiff,
v.
CIVIL ACTION NO. 5:12-03158
MOUNTAIN STATE UNIVERSITY, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s motion for class
certification (Doc. No. 32).
For the reasons that follow, the
court denies the motion.
I.
Factual and Procedural Background1
Plaintiff, Rebecca Mullis, is a former student of defendant
Mountain State University’s (“MSU”) online Diagnostic Medical
Sonography (“DMS”) program.
The alleged failure of MSU to
provide geographically convenient or otherwise practicable
clinical sites at which plaintiff and putative class members
could fulfill the DMS program’s clinical externship requirements
is the crux of this putative class action.
The complaint alleges
1
The following factual background is derived from exhibits presented by the
parties and the evidence presented at the hearing on the motion for class
certification held on December 18, 2013. The court makes these factual findings
for the sole purpose of deciding plaintiff’s motion for class certification.
1
five counts, consisting of breach of contract, negligence,
negligent misrepresentation, unjust enrichment/breach of quasicontract, and violation of the West Virginia Consumer Credit and
Protection Act (“WVCCPA”).
at 12-18.
See Doc. No. 12 (Amended Complaint)
Plaintiff moved for class certification and
appointment of class counsel on June 5, 2013.
Doc. No. 32.
Plaintiff seeks to certify the following class:
All individuals residing outside of West Virginia
who enrolled in an online Medical Diagnostic
Sonography program at Mountain State University at
any time from the program’s inception in 2007 to
the present, for whom Mountain State provided no
clinical externship site within three hours of the
student’s home or another practicable location in
the student’s area.2
Doc. No. 33 at 7.
This matter has been fully briefed, an
evidentiary hearing was held on December 18, 2013, and the
parties submitted proposed findings of fact and conclusions of
law.
MSU offered bachelors, associate, and certificate levels of
studies in DMS.
The bachelor’s program comprised 138 credit
hours, including five clinical rotations and forty hours of
prerequisites.
Students needed sixty-four DMS-specific credit
2
The initial proposed class detailed in plaintiff’s amended
complaint mentioned nothing about residing outside of West
Virginia, but is the same in all other respects. See Doc. No. 12
at 3. Any mention of the class or proposed class in this opinion
is referring to the proposed class as stated in plaintiff’s brief
in support of her motion for class certification which includes the
outside West Virginia qualifier.
2
hours to obtain an associate degree, including three required
clinical rotations and forty hours of prerequisites for a total
of 104 hours.
Such prerequisites were not required of students
having previously graduated from an AMA-approved health sciences
program or students who successfully completed the prerequisites
at another institution.
Doc. No. 41-1 (Declaration of Tammy L.
Mollohan) at ¶ 2.
MSU offered a traditional or “in-seat” DMS program beginning
in 1993.
The student handbook for that program included a travel
policy requiring students to travel up to three hours from
Beckley, West Virginia (the site of MSU) to attend clinical
externships.
Doc. No. 52 (Transcript of hearing on the motion
for class certification) at 88-89.
The online program started in
2007, and students from various parts of the country were
admitted.
The “three hours from Beckley” limitation applicable
to traditional students was generally interpreted to apply to the
online students to mean three hours from the student’s home.
at 55, 89.
Id.
This application of the three hour limitation to the
new online DMS students was not initially formalized by a written
policy.
Id. at 50, 122.
Beginning in the spring 2010 semester,
the three hour restriction for online DMS students was
eliminated, and new students were required to sign a written
Clinical Travel Agreement.
Id. at 90-91.
This agreement
provided that MSU would attempt to place students in clinical
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facilities within their areas, but that there might be times when
available sites were outside the students’ areas requiring the
students to make arrangements to travel to the sites.
Id. at 91.
This new agreement did not mention the three hour limitation that
had informally been utilized for the online DMS students.
Id.
Students admitted to the program prior to the spring 2010
semester were asked to sign the agreement, but they were not
required to do so.
Id. at 125.
In late 2011, the travel policy
was again amended to state that students would be expected to
travel or relocate for the purposes of completing the clinical
requirements.
Id. at 93.
This new policy applied to students
starting the online DMS program in the spring 2012 semester.
In late June of 2011, the Higher Learning Commission of the
North Central Association of Colleges and Schools (“HLC”) placed
MSU’s university-wide accreditation on “show cause” status.
No. 41-1 at 3.
Doc.
Students admitted to MSU thereafter were advised
of this show cause status in their acceptance letters.
Id.
On
March 30, 2012, the Commission on Accreditation of Allied Health
Education Programs (“CAAHEP”) placed MSU’s online DMS program on
probation partly due to delays in placing students in clinical
rotations and because MSU had not provided documentation
addressing how the delays would be alleviated.
2.
Doc. No. 42-10 at
MSU’s university-wide accreditation was eventually withdrawn
in July of 2012, and MSU’s subsequent appeal of that decision was
4
unsuccessful.
2012.
Doc. No. 41-1 at 4.
MSU closed on December 31,
In an attempt to minimize the impact of the closure on its
students, MSU developed a “teach-out” plan to permit students to
complete their studies at the University of Charleston.
However,
MSU did not continue the online DMS program – the subject matter
of this litigation.
II.
Analysis
Rule 23 provides for a two-step analysis to determine
whether to certify a class action.
First, a plaintiff must
satisfy all of the requirements of Rule 23(a).
That is, a
plaintiff must show that: (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 the class.
P. 23(a).
See
Fed. R. Civ.
The common short-hand for these requirements is
numerosity, commonality, typicality, and adequate representation.
Second, a plaintiff must establish that the proposed class falls
within one of the three subsections of Rule 23(b).
Civ. P. 23(b)(1)-(3).
See Fed. R.
Here, plaintiff relies on Rule 23(b)(3)
which authorizes certification when (1) questions of law or fact
common to class members predominate over any questions affecting
5
only individual members; and (2) a class action is superior to
other available methods of adjudication.
District courts have broad discretion to determine whether
class certification is proper under Rule 23, and the district
court will only be reversed upon a showing of abuse of that
discretion.
Stott v. Haworth, 916 F.2d 134, 139 (4th Cir. 1990);
see also Roman v. ESB, Inc., 550 F.2d 1343, 1349 (4th Cir. 1976)
(“[T]he determination of a district court that an action does not
meet the requirements of a class action will not be disturbed
unless it is clearly erroneous.”).
The party seeking
certification bears the burden of proving each of the requisite
elements of Rule 23.
Thorn v. Jefferson-Pilot Life Ins. Co., 445
F.3d 311, 321 (4th Cir. 2006).
The failure to establish these
elements precludes class certification.
As stated by the Supreme
Court,
[A] party must not only “be prepared to prove that
there are in fact sufficiently numerous parties,
common questions of law or fact,” typicality of
claims
or
defenses,
and
adequacy
of
representation, as required by Rule 23(a).
The
party must also satisfy through evidentiary proof
at least one of the provisions of Rule 23(b).
Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (quoting
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011)).
Certification is proper only if “the trial court is satisfied,
after a rigorous analysis, that the prerequisites of Rule 23(a)
have been satisfied.”
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.
6
147, 160 (1982).
It is often the case that this “‘rigorous
analysis’ will entail some overlap with the merits of the
plaintiff’s underlying claim.”
Dukes, 131 S. Ct. at 2551.
a. Numerosity
In this case, plaintiff’s motion for class certification
suffers from at least one dispositive defect.
Plaintiff has not
shown that the proposed class is so numerous that joinder is
impracticable.
Plaintiff summarily asserts that “[t]here can be
little question that the class of students proposed here, which
numbers in the hundreds, meets the numerosity requirement.”
No. 33 at 10-11.
Doc.
Defendant provides more than a “little
question” to this statement.
In fact, defendant positively
refutes it with evidence – evidence which plaintiff never
satisfactorily combatted despite the fact that it is her burden
to establish that joinder is impracticable.
In addressing whether the class is so numerous that joinder
is impracticable, “[t]here is no mechanical test.”
Kelley v.
Norfolk & W. Ry. Co., 584 F.2d 34, 35 (4th Cir. 1978).
Rather
than relying solely on numbers, the court is required to analyze
the factual circumstances of each case.
In re Serzone Products
Liab. Litig., 231 F.R.D. 221, 237 (S.D.W. Va. 2005).
The court
is free to consider, among other factors, the estimated size of
the class, the geographic diversity of the class, the difficulty
of identifying class members, and the negative impact on judicial
7
economy if individual suits were required.
Christman v. Am.
Cyanamid Co., 92 F.R.D. 441, 451 (N.D.W. Va. 1981).
First, it is unclear exactly what the estimated size of the
class is.
Plaintiff’s estimations amount to mere speculation
unaccompanied by evidentiary support.
Plaintiff alleges that
“[n]umerosity is established here by the nearly 500 students
Mountain State previously acknowledged were enrolled in the
online DMS program.”
Doc. No. 42 at 20.
This number is derived
from a July 2010 MSU enrollment summary chart which indicates
that 493 online students were majoring in DMS.
11.
Doc. No. 42-13 at
However, from additional testimonial and documentary
evidence it is clear that this number is merely students who
chose DMS as a major – not those who were actually accepted into
the online DMS program.
Indeed, only an estimated fifteen to
twenty percent of students that declared DMS as a major were
accepted to the program.
Doc. No. 52 at 82.
From July 2007 to
December 2012 - the entire history of the online DMS program only 209 students were actually admitted to the program.
76-77; Doc. No. 41-1 at 29.
Id. at
The “pre-DMS” students who simply
declared DMS as their major were taking prerequisite courses, and
they were not required to complete clinical externships.
No. 52 at 129-30.
Doc.
As such, they cannot be included in a proposed
class where the primary grievance is the failure to provide a
clinical externship site.
8
The evidence supports a much more modest estimated size of
the proposed class.
Of the 209 students admitted to the program
throughout its history, 110 graduated with a bachelor and/or
associate degree in DMS.
See Doc. No. 41-1 at 29-46.
Two other
students completed their clinical rotations, but failed to
complete all of the prerequisites.
Thirty online DMS students
were dismissed from the program for various reasons including
failing courses, failing to submit clinical paperwork, felony
conviction, and excessive absences at clinical facilities.
Id.
An additional thirty-nine students withdrew from the online DMS
program for a variety of reasons including financial reasons,
military service, leaves of absence, or otherwise abandoning
studies by failing to register or return after a period of
probation.
Id.
Of these thirty-nine students, sixteen withdrew
for reasons not reflected in MSU’s records.
As such, what the
actual number of this proposed class would be is unclear.
Yet,
one thing is certain – it would be significantly less than the
hundreds that plaintiff estimates.
Plaintiff’s mere speculation does not meet her burden, and
she has provided no meaningful evidence that refutes the
evidentiary support for a much more modest estimation of the size
of the proposed class.
Conclusory and speculative allegations as
to the size of the class are insufficient to establish
numerosity.
See Abby v. Paige, 282 F.R.D. 576,578 (S.D. Fla.
9
2012) (“Here, numerosity is, at best speculative.
Instead of
directing the Court to record evidence, Plaintiff Abby asserts in
the motion that the ‘numerosity element has easily been met as a
reasonable and common sense estimate . . . .’”).
Second, plaintiff concedes that locating class members will
not be difficult because defendant possesses the contact
information for each member.
Doc. No. 33 at 16; Doc. No. 42 at
18 (“Indeed, it would be absurd for Mountain State to assert that
it does not have name and address information for its students,
because Mountain State has produced a list in this litigation
that includes the student’s city and state.”).
This seems like a
logical conclusion which is supported by the information in
defendant’s exhibits.
From the record, it appears that the class
members can be easily located.
Yet, plaintiff seems to think
this fact supports her contention that joinder is impracticable.
On the contrary, it buttresses the conclusion that joinder is not
impracticable.
See Ansari v. New York Univ., 179 F.R.D. 112, 115
(S.D.N.Y. 1998) (“Although knowledge of the whereabouts of
proposed class members does not automatically make joinder
practicable, it should provide comfort to [plaintiff] who, if he
so chooses, can contact each of his former classmates, apprise
each of his lawsuit, and invite each to join.”).
Having access
to this contact information, as plaintiff assures the court
defendant does, means that each individual can be contacted to
10
determine their interests in the litigation, their desire or lack
thereof to join a class action, or their wish to bring an
individual action.
Such “[k]knowledge of names and existence of
members has been called the most important factor, precisely
because it renders joinder practicable.”
Primavera
Familienstiftung v. Askin, 178 F.R.D. 405, 410 (S.D.N.Y. 1998)
(internal quotations omitted) (denying class certification) ; see
also Kennedy v. Virginia Polytechnic Inst. & State Univ., 7-08CV-00579, 2010 WL 3743642 at *4 (W.D. Va. Sept. 23, 2010)
(“Joinder is not impractical because the named plaintiffs . . .
have access to the names, current addresses, and salary histories
of all potential plaintiffs whose rights may be affected by the
pending litigation.”).
And while it appears that the proposed
class is geographically dispersed, the access to this contact
information mitigates the problems raised by geographic
dispersion.
See Ansari, 179 F.R.D. at 115.
Another critical consideration affecting the practicability
of joinder is the ability and willingness of individual class
members to bring individual actions.
Perhaps most important to
this inquiry is the size of the individual claims, because “small
recoveries do not provide the incentive for any individual to
bring a solo action prosecuting his or her rights.”
Prods. Inc. v. Windsor, 521 U.S. 591, 617 (1997).
Amchem
A direct
corollary to this notion is that joinder is more likely
11
practicable when individual recoveries are substantial.
Indeed,
it is the very policy of class actions to avoid the problem that
arises when small claims do not provide the incentive to any
individual to bring an action on his own behalf.
“A class action
solves this problem by aggregating the relatively paltry
potential recoveries into something worth someone’s (usually an
attorney’s) labor.”
Mace v. Van Ru Credit Corp., 109 F.3d 338,
344 (7th Cir. 1997).
Here, the damages alleged are anything but insubstantial.
As alleged by plaintiff in her complaint, tuition for the DMS
bachelor degree program costs $68,310 excluding any
prerequisites, and the associate degree DMS program costs $51,480
exclusive of prerequisites.
Doc. No. 12 at ¶¶ 24-25.
Plaintiff
alleges she incurred approximately $60,000 in student loan debt
to pursue a DMS degree.
Id. at ¶ 19.
consequential and incidental damages.
Plaintiff also alleges
Potential recoveries of
this nature provide a strong incentive to putative class members
to pursue individual actions or join plaintiff’s action.
As then
Judge Mukasey of the Southern District of New York stated in a
case that also involved a putative class action against an
educational institution,
Assuming that each member of the proposed class
has a claim similar to [plaintiff’s] – as he
himself urges – then each could expect to recover
the amount of the tuition, $30,000, plus the
opportunity cost of having attended the program,
12
which [plaintiff] estimates about $60,000 for
himself. A potential award of around $90,000 is
hardly the type of de minimis recovery that would
discourage individual class members from joining
[plaintiff’s] suit or from filing suits on their
own behalf.
Ansari, 179 F.R.D. at 116; see also Deen v. New School Univ.,
2008 WL 331366 at *4 (S.D.N.Y. 2008) (finding joinder to be
practicable where the potential damages award could be up to
$60,000 per individual despite the fact that the proposed class
consisted of approximately 110 students).
On this record, plaintiff has failed to establish
numerosity.
This court is required to perform a “rigorous
analysis” into the Rule 23(a) requirements, and plaintiff is not
entitled to the benefit of the doubt when little to no evidence
supports a finding that joinder is impracticable.
The likelihood
of a very modest size of this class, in conjunction with the
other factors discussed above which strongly suggest that joinder
is not impracticable illustrate that plaintiff has not met her
burden of establishing numerosity.
Having not satisfied the
court that joinder is impracticable, plaintiff is not entitled to
certification of the proposed class.
b. Remaining Rule 23 Requirements
Having failed to establish numerosity, the court declines to
address the remaining Rule 23(a) elements of commonality,
typicality, and adequacy of representation.
13
The court also
declines to address the Rule 23(b)(3) requirements in depth.
Nonetheless, the court notes that plaintiff’s evidentiary
submissions are likely insufficient to meet her burden
established by the Supreme Court.
See Comcast Corp. v. Behrend,
133 S. Ct. 1426, 1432 (2013) (requiring “evidentiary proof” of at
least one Rule 23(b) provision).
Additionally, the discussion
above concerning the significant amount of the potential
individual damages awards as it applies to the practicability of
joinder applies equally to the predominance and superiority
requirements of Rule 23(b)(3).
See Amchem Prods. Inc. v.
Windsor, 521 U.S. 591, 617 (1997).
That is, when potential
individual damages awards are substantial as they are here, a
class action is more likely not superior to other available
methods for fairly and efficiently adjudicating the controversy.
III. Conclusion
Plaintiff’s failure to establish that the proposed class is
so numerous that joinder is impracticable is sufficient to
dispose of plaintiff’s motion.
As such, the court DENIES
plaintiff’s motion for class certification (Doc. No. 32).
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED this 27th day of March, 2014.
ENTER:
David A. Faber
Senior United States District Judge
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