262 F.R.D. 451 (D.N.J. 2009), Civ. 06-1810 (RMB), Rowe v. E.I. DuPont De Nemours and Co.

Docket Nº:Civil 06-1810 (RMB), 06-3080(RMB).
Citation:262 F.R.D. 451
Opinion Judge:BUMB, District Judge.
Party Name:Richard A. ROWE, et al., individually and on behalf of themselves and all others similarly situated, Plaintiffs, v. E.I. DUPONT DE NEMOURS AND COMPANY, Defendant. Misty Scott, on behalf of herself and all others similarly situated, Plaintiff, v. E.I. DuPont De Nemours and Company, Defendant.
Attorney:Andrew J. Chamberlain, Michael George Sinkevich, Jr., Shari M. Blecher, Stuart J. Lieberman, Lieberman & Blecher, P.C., Princeton, NJ, for Plaintiffs. Roy Alan Cohen, Porzio, Bromberg & Newman, PC, Morristown, NJ, for Defendant DuPont.
Case Date:October 09, 2009
Court:United States District Courts, 3th Circuit, District of New Jersey

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262 F.R.D. 451 (D.N.J. 2009)

Richard A. ROWE, et al., individually and on behalf of themselves and all others similarly situated, Plaintiffs,

v.

E.I. DUPONT DE NEMOURS AND COMPANY, Defendant.

Misty Scott, on behalf of herself and all others similarly situated, Plaintiff,

v.

E.I. DuPont De Nemours and Company, Defendant.

Civil Nos. 06-1810 (RMB), 06-3080(RMB).

United States District Court, D. New Jersey.

October 9, 2009

Page 452

[Copyrighted Material Omitted]

Page 453

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Page 454

Andrew J. Chamberlain, Michael George Sinkevich, Jr., Shari M. Blecher, Stuart J. Lieberman, Lieberman & Blecher, P.C., Princeton, NJ, for Plaintiffs.

Roy Alan Cohen, Porzio, Bromberg & Newman, PC, Morristown, NJ, for Defendant DuPont.

OPINION

BUMB, District Judge.

I. INTRODUCTION

This matter comes before the Court upon two motions for class certification of common law claims-one by the Rowe Plaintiffs [Dkt. No. 289 (06-1810) ] and one by the Scott Plaintiff [Dkt. No. 256 (06-3080) ] (collectively, " Plaintiffs" ). These motions were deemed filed upon the Court's Order, dated July 29, 2009 [Dkt. No. 320 (06-1810); Dkt. No. 275 (06-3080) ]. The Court received Defendant's opposition on August 28, 2009 [Dkt. No. 329 (06-1810); Dkt. No. 284 (06-3080) ] and Plaintiffs' Reply on September 8, 2009 [Dkt. No. 332 (06-1810); Dkt. No. 287 (06-3080) ]. Because the parties are familiar with the factual and procedural background of these cases, the Court will proceed directly to its analysis of the pending motions.

II. STANDARD OF REVIEW

In order to be certified, " a class must satisfy the prerequisites of Rule 23(a) and the ‘ parties seeking certification must also show that the action is maintainable under Rule 23(b)(1), (2), or (3).’ " Barnes v. American Tobacco Co., 161 F.3d 127, (3d Cir.1998) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). The party seeking class certification bears the burden of proving that each of the requirements under Rule 23 has been met. Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir.1994). " A party's assurance to the court that it intends or plans to meet the requirements is insufficient." In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 318 (3d Cir.2008).

The court has discretion under Rule 23 to certify a class but it must perform " a rigorous analysis" to satisfy itself that the prerequisites of Rule 23 have been met. Beck v. Maximus, Inc., 457 F.3d 291, 297 (3d Cir.2006). " ‘ Because the decision whether to certify a class requires a thorough examination of the factual and legal allegations, the court's rigorous analysis may include a preliminary inquiry into the merits, and the court may consider the substantive elements of the plaintiffs' case in order to envision the form that a trial on those issues would take.’ " Hohider v. United Parcel Service, Inc., 574 F.3d 169, 176 (3d Cir.2009) (quoting Hydrogen Peroxide, 552 F.3d at 317) (internal quotations omitted). If certification is warranted, the district court's certification order must include " a clear and complete summary of those claims, issues or defenses subject to class treatment." Wachtel v. Guardian Life Ins. Co. of America, 453 F.3d 179, 184 (3d Cir.2006); Fed.R.Civ.P. 23(c)(1)(B).

III. ANALYSIS

The Rowe Plaintiffs seek class certification of the following common law claims: nuisance,

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trespass, negligence and gross negligence. (Rowe Motion at 2). The Scott Plaintiff seeks certification of the following common law claims: private nuisance, public nuisance, negligence and strict liability. (Scott Motion at 2). To be certified as classes on these claims, Plaintiffs must provide precise definitions of their proposed classes and meet the requirements of Rule 23(a) and (b).

A. Class Definitions

Before delving into the requirements of Rule 23(a) and (b), the Court must determine whether Plaintiffs' proposed class definitions are " readily ascertainable based on objective criteria." Agostino v. Quest Diagnostics Inc., 256 F.R.D. 437, 478 (D.N.J.2009) (citing Crosby v. Social Sec. Admin. of U.S., 796 F.2d 576, 580 (1st Cir.1986); Simer v. Rios, 661 F.2d 655, 669 (7th Cir.1981); Teamsters Local 445 Freight Div. Pension Fund v. Bombardier, Inc., 2006 WL 2161887, at *3 (S.D.N.Y.2006), aff'd, 546 F.3d 196 (2d Cir.2008)). " While class definitions obviously are tailored to the specifics of every case, important elements of defining a class include: (1) specifying a particular group that was harmed during a particular time frame, in a particular location, in a particular way; and (2) facilitating a court's ability to ascertain its membership in some objective manner." Bentley v. Honeywell Int'l Inc., 223 F.R.D. 471, (S.D.Ohio 2004) (citing Crosby, 796 F.2d at 580). Although " Plaintiffs need not prove that class members have been injured for purposes of defining the [classes], Plaintiffs' class definitions must have some relation to the Defendant['s] activities." O'Connor v. Boeing North American, Inc., 184 F.R.D. 311, 320 (C.D.Cal.1998).

Rowe and Scott Plaintiffs each propose a class of " all individuals who, as of the time a class is certified in this case, either are residential water customers of Penns Grove Water Supply Company (‘ PGWS') that have an ownership interest (meaning own or lease) in their real property served by PGWS or are persons who have an ownership interest in a private well within a two-mile radius of DuPont's Chambers Works plant, which supplies drinking water containing [PFOA]...." (Rowe Motion at 14; Scott Motion at 13). The Court finds that this definition specifies an identifiable group (residents who receive water from PGWS or certain wells), location (PGWS service area and various private wells within a two-mile radius of the Chambers Works plant) and time 1 (as of the certification of the class). Class membership can be obtained through objective evidence-namely, PGWS's customer records and public well documentation. (Rowe Motion at 15; Scott Motion at 13). Accordingly, this definition satisfies the standard of a practicable class definition.

B. Rule 23(a) Requirements

Rule 23(a) contains four requirements: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.2 The Court will discuss each of these requirements in turn with respect to Plaintiffs' common law claims.

1. Numerosity

The numerosity requirement requires that the class be " so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a). As the Court found in its prior Opinion, " the proposed Rowe class definition covers thousands of residential PGWS water customers and will include approximately 14,000 to 15,000 people in total" and " the proposed Scott class numbers over 10,000 people." (Opinion, dated Dec. 12, 2008, at 13-14) (citing Rowe Initial Motion for Cert. at 35; Nov. 10, 2008 Hearing Tr. 19:4-9). DuPont does not dispute the numerosity

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of either class. ( Id. at 14). Although there is no minimum number required, " generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met." Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir.2001). Accordingly, the Court finds that both the Rowe Plaintiffs and the Scott Plaintiff have satisfied the numerosity requirement.

2. Commonality

The second requirement is commonality, which requires that there be " questions of law or fact common to the class." Fed.R.Civ.P. 23(a). This does not mean that all the factual and legal questions in the case must be identical for all proposed class members. To the contrary, " [t]he commonality requirement will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class." Baby Neal, 43 F.3d at 56.

Although there are some individualized issues in connection with Plaintiffs' common law claims, discussed infra, " the existence of individualized issues in a proposed class action does not per se defeat commonality." Brooks v. Educators Mut. Life Ins. Co., 206 F.R.D. 96, 101 (E.D.Pa.2002) (citing Johnston v. HBO Film Mgt., Inc., 265 F.3d 178, 191 (3d Cir.2001)). Indeed, the commonality requirement " may be satisfied by a single common issue...." Baby Neal, 43 F.3d at 56. In this case, the Court finds that there are issues relevant to Plaintiffs' common law claims that are common to all class members, such as whether DuPont released PFOA from its Chambers Works Plant in New Jersey into the surrounding air and water. Thus, the commonality prerequisite is satisfied.

3. Typicality

Although " ‘ [t]he concepts of commonality and typicality are broadly defined and tend to merge[,]’ " the Court will address typicality separately. Barnes, 161 F.3d at 141 (quoting Baby Neal, 43 F.3d at 56). The typicality requirement considers whether " the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a). This inquiry " is intended to assess whether the action can be efficiently maintained as a class and whether the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees' interests will be fairly represented." Baby Neal, 43 F.3d at 57. However, the typicality requirement " does not mandate that all putative class members share identical claims." Barnes, 161 F.3d at 141. Rather, it is well settled that " ‘ [f]actual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory.’ " Id....

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