United States District Court, W.D. Kentucky, Louisville Division
CHERRI BECKHART et al. PLAINTIFFS
JEFFERSON COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge.
matter is before the Court on Plaintiffs' Motion to
Certify Class and Appoint Class Counsel (DN 57), and
Plaintiffs' Motion for Oral Argument (DN 76). The motions
are ripe for decision. For the reasons stated below,
Plaintiffs' Motion to Certify Class and Appoint Class
Counsel is GRANTED, and Plaintiffs'
Motion for Oral Argument is DENIED.
STATEMENT OF FACTS AND CLAIMS
June 25, 2012, the Jefferson County Board of Education and
the Jefferson County Association of Educational Support
Personnel American Federation of State, County and Municipal
Employees on behalf of Local 4011 entered into a collective
bargaining agreement (“CBA”). (Verified Compl.
Ex. A, DN 1-2). Under the CBA, Defendants American Federal of
State, County and Municipal Employees, AFL-CIO
(“AFSCME”), AFSCME Indiana-Kentucky Organizing
Committee 962 (“Council 962”), and Jefferson
County Association of Educational Support Personnel, AFSCME,
Local 4011 (“Local 4011”) can collect a
“fair share fee” from non-members employed in the
Jefferson County Public Schools (“JCPS”).
(Verified Compl. Ex. A, at 7-8).
and 2015, Council 962 provided written notice to all fair
share fee payers as required by the CBA. (Verified Compl.
Exs. A-B, DN 1-3 to 1-4). On September 23, 2015,
Plaintiffs-who are fair-share-paying non-members of the
union-filed this action on behalf of themselves and others
alleging the CBA and its enforcement are violations of their
rights to free speech and association protected by the First
and Fourteenth Amendments which give rise to claims under 42
U.S.C. § 1983. (Verified Compl. ¶¶ 72-92).
have moved to certify a class of plaintiffs and for
appointment of class counsel, which Defendants emphatically
oppose. (Pls.' Mot. Class Certification & Appointment
Class Counsel, DN 57; Defs.' Resp. Pls.' Mot. Class
Certification & Appointment Class Counsel, DN 69).
Plaintiffs also request oral argument on the motion.
(Pls.' Mot. Oral Argument, DN 76).
Court has subject-matter jurisdiction of this matter based
upon federal question jurisdiction. See 28 U.S.C.
Motion to Certify Class & for Appointment of Class
outlined in the First Amended Complaint, Plaintiffs have
defined the class as follows:
The class consists of all union nonmember employees who, at
any time since September 23, 2014 (and while this action is
pending), are or were employed in the Job Family 1A job
classification and salary schedule for Jefferson County
Public Schools and are, were or will be required to pay a
compulsory fee to Defendants Local 4011, Council 962, and/or
AFSCME pursuant to a compulsory unionism agreement between
the Unions and the Board.
(1st Am. Compl. ¶ 13). In determining whether to certify
the proposed class, the Court must consider whether
Plaintiffs have satisfied the requirements of Fed.R.Civ.P.
23(a) and (b).
Fed. R. Civ. P. 23(a)
this Court has broad discretion in certifying a class action,
“it must exercise that discretion within the framework
of Rule 23.” Coleman v. Gen. Motors Acceptance
Corp., 296 F.3d 443, 446 (6th Cir. 2002) (citing
Cross v. Nat'l Tr. Life Ins. Co., 553 F.2d 1026,
1029 (6th Cir. 1977)). In relevant part, Fed.R.Civ.P. 23(a)
sets forth the prerequisites for certifying a class and
One 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 representative parties will fairly
and adequately protect the interests of the class.
as the moving party, Plaintiffs bear the burden of proof to
“satisfy Rule 23(a)'s requirements of numerosity,
commonality, typicality, and adequacy of
representation.” In re Am. Med. Sys.,
Inc., 75 F.3d 1069, 1079 (6th Cir. 1996) (citations
omitted); Coleman, 296 F.3d at 446 (citing
Fed.R.Civ.P. 23(a)). This Court may not certify a class
unless all four requirements are met, and Plaintiffs
“must demonstrate that the class fits under one of the
three subdivisions of Rule 23(b).” Coleman,
296 F.3d at 446.
numerosity requirement mandates that a class be “so
numerous that joinder of all members is impracticable . . .
.” The Sixth Circuit has held that “[t]here is no
strict numerical test for determining impracticability of
joinder.” Fed.R.Civ.P. 23(a)(1); In re Am. Med.
Sys., Inc., 75 F.3d at 1079 (citation omitted). Rather,
“[t]he numerosity requirement requires examination of
the specific facts of each case and imposes no absolute
limitations.” Gen. Tel. Co. of Nw., Inc. v.
EEOC, 446 U.S. 318, 330 (1980). The “sheer number
of potential litigants in a class, especially if it is more
than several hundred, can be the only factor needed to
satisfy Rule 23(a)(1).” Bacon v. Honda of Am. Mfg.,
Inc., 370 F.3d 565, 570 (6th Cir. 2004) (citation
omitted). The Court may also consider the following factors
in determining numerosity:
(1) judicial economy arising from the avoidance of a
multiplicity of actions; (2) the geographic dispersion of
class members; (3) the financial resources of class members;
(4) the ability of claimants to institute individual
lawsuits; (5) the amount of each member's individual
claim; (6) knowledge of the names and existence of the
potential class members; and (7) whether potential class
members have already joined other actions.
Powell v. Tosh, 280 F.R.D. 296, 303 (W.D. Ky. 2012)
(internal quotation marks omitted) (quoting Primavera
Familienstiftung v. Askin, 178 F.R.D. 405, 410 (S.D.N.Y.
their motion, Plaintiffs estimate that the proposed class
includes approximately 900 non-members, and Defendants have
previously admitted that “the number of persons in the
class exceeds 700 persons for the 2014-15 and subsequent
school years.” (Pls.' Mem. Supp. Mot. Class
Certification & Appointment Class Counsel 9; Defs.'
Answer ¶ 14, DN 55). Thus, the likely size of the
proposed class would satisfy the numerosity requirement.
See Bacon, 370 F.3d at 570.
geographical dispersion of the potential class members,
however, weighs against numerosity. All of JCPS employees
likely live in the area. (Pls.' Mem. Supp. Mot. Class
Certification & Appointment Class Counsel 10). Thus, the
close proximity of the potential class members would make
financial resources factor weighs in favor of numerosity. As
this Court has noted:
One of the basic reasons for promulgating Rule 23 was to
provide small claimants with a method of obtaining redress
for claims which would otherwise be too small to warrant
individual litigation. Therefore, when the size of each claim
is significant, and each proposed class member therefore
possesses the ability to assert an individual claim, the goal
of obtaining redress can be accomplished without the use of
the class action device.
Powell, 280 F.R.D. at 304 (internal quotation marks
omitted) (internal citation omitted) (quoting Primavera
Familienstiftung, 178 F.R.D. at 411). The record
developed thus far reflects that the “fair share”
fees at issue per relevant fee year are as follows: $79
(September through December 2014); $239 (2015), and $212
(2016). (1st Am. Compl. Ex. D; Cochran Decl. ¶ 7, DN
57-2; Diemer Decl. ¶ 7, DN 57-3; Shina Decl. ¶ 7,
DN 57-4; Thomas Decl. ¶ 7, DN 57-5; Thomas Decl. Ex. 1,
57-6). Due to the relatively small amount potentially owed to
each class member, it would likely be cost-prohibitive for
each member to pursue the claims individually.
addition, it would appear to be relatively straightforward to
identify the names and existence of the class members. This
information should be readily available in Defendants'
records. Thus, this factor would weigh against finding that
the numerosity requirement has been met. See Powell,
280 F.R.D. at 304.
allowing these claims to proceed together as a class would be
beneficial to judicial economy. Having more than 700 separate
lawsuits involving the same issues and facts would be
extremely inefficient, which supports allowing this matter to
proceed with the proposed class.
considering all of the factors, the Court concludes that the
class of putative plaintiffs would meet the numerosity
requirement of Fed.R.Civ.P. 23(a). While the proposed class
members are in close geographical proximity, the sheer number
of potential class members would make joinder impractical.
must also satisfy the commonality requirement, which requires
that “there [be] questions of law or fact common to the
class . . . .” Fed.R.Civ.P. 23(a)(2). In general, this
requirement may be satisfied if there is a “single
issue common to all members of the class.” In
re Am. Med. Sys., 75 F.3d at 1080 (internal
quotation marks omitted) (citation omitted). As the Supreme
Court has stated, “[c]ommonality requires the plaintiff
to demonstrate that the class members ‘have suffered
the same injury . . . .'” Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 349-50 (2011) (quoting Gen.
Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). As
this Court has stated:
The claims of the class members must depend upon a common
contention; additionally, that common contention “must
be of such a nature that it is capable of class[-]wide
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.”
Powell, 280 F.R.D. at 305 (alteration in original)
(quoting Dukes, 564 U.S. ...