Georgia-Pacific Consumer Prods., LP v. Ratner

• Decision Date: 11 July 2014
• Docket Number: No. S13G1723.,S13G1723.
• Citation: 762 S.E.2d 419,295 Ga. 524
• Court: Georgia Supreme Court
• Parties: GEORGIA–PACIFIC CONSUMER PRODUCTS, LP v. RATNER et al.

295 Ga. 524

762 S.E.2d 419

GEORGIA–PACIFIC CONSUMER PRODUCTS, LP

v.RATNER et al.

No. S13G1723.

Supreme Court of Georgia.

July 11, 2014.

Hull Barrett, David E. Hudson, William J. Keogh III, Augusta, Ellis, Painter, Ratterree & Adams, Ryburn C. Ratterree, Tracy A. O'Connell, Savannah, for appellant.

Bell & Brigham, John C. Bell, Jr., Augusta, Oliver Maner, Benjamin M. Perkins, Timothy D. Roberts, Savannah, Melissa L. Bailey, for appellee.

Brinson Askew Berry Seigler Richardson & Davis, Robert M. Brinson, Norman S. Fletcher, Rome, Troutman Sanders, William M. Droze, Douglas A. Henderson, Atlanta, McNatt, Greene & Peterson, Hugh B. McNatt, Randall D. Quintrell, Robbins, Russell, Englert, Orseck, Untereiner & Sauber, Alan E. Untereiner, Matthew M. Madden, Skadden, Arps, Slate, Meagher & Flom, John H. Beisner, Geoffrey M. Wyatt, Jessica D. Miller, GreenLaw, Steven D. Caley, amici curiae.

BLACKWELL, Justice.

The named plaintiffs in this class action own real property in Mallard Pointe, a residential neighborhood in Effingham County. Nearby, since 1986, Georgia–Pacific Consumer Products, LP has operated the Savannah River Mill, a facility that includes more than a hundred acres of sludge fields, into which Georgia–Pacific puts the solid waste generated at the Mill. As this solid waste decomposes, the plaintiffs say, hydrogen sulfide gas is released from the sludge fields. Alleging that their real property has been contaminated by this gas—and that, as a result, they have been exposed to noxious odors, their use and enjoyment of their property has been impaired, and the value of their property has diminished—the plaintiffs sued Georgia–Pacific for nuisance, trespass, and negligence. The plaintiffs sought not only to recover monetary damages for themselves, but they proposed to seek relief for a class of other nearby property owners.

The trial court permitted them to do so, certifying a class that consists of the owners of 67 parcels of real property in and around Mallard Pointe. ¹ Georgia–Pacific appealed the certification of the class,² and the Court of Appeals affirmed, Georgia–Pacific Consumer Products, LP v. Ratner, 323 Ga.App. 203, 203–212, 746 S.E.2d 829 (2013), although three of its judges dissented. See id. at 213–221, 746 S.E.2d 829 (Branch, J., dissenting). Upon the petition of Georgia–Pacific, we issued a writ of certiorari to review the decision of the Court of Appeals. We conclude that the trial court abused its discretion when it certified the class, and we reverse the judgment of the Court of Appeals.

1. “The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only,” Comcast Corp. v. Behrend, ––– U.S. ––––, ––––(II), 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013) (citation and punctuation omitted), and consistent with its exceptional nature, a class action is permitted only in the limited circumstances described in OCGA § 9–11–23.³ The party seeking to represent a class “bear[s] the burden of proving that class certification is appropriate.” Carnett's, Inc. v. Hammond, 279 Ga. 125, 127(3), 610 S.E.2d 529 (2005) (citation omitted). See also McGarry v. Cingular Wireless, LLC, 267 Ga.App. 23, 25(1), 599 S.E.2d 34 (2004). In this case, to permit the certification of a class of plaintiffs, the named plaintiffs had to satisfy each of the four requirements described in OCGA § 9–11–23(a)—numerosity, ⁴ commonality,⁵ typicality,⁶ and adequacy of representation ⁷—as well as the predominance requirement of OCGA § 9–11–23(b)(3).⁸ See American Debt Foundation v. Hodzic, 312 Ga.App. 806, 808, 720 S.E.2d 283 (2011). To satisfy these requirements, it was not enough for the plaintiffs simply to have alleged that they were satisfied. Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, ––––(II)(A), 131 S.Ct. 2541, 2550–52, 180 L.Ed.2d 374 (2011). See also Fortis Ins. Co. v. Kahn, 299 Ga.App. 319, 321–322(1), 683 S.E.2d 4 (2009). Rather, the plaintiffs had to come forward with evidence to prove their satisfaction of the statutory requirements. See Dukes, ––– U.S. at ––––(II)(A), 131 S.Ct. at 2550–52. See also Jones v. Douglas County, 262 Ga. 317, 324(2), 418 S.E.2d 19 (1992); Rite Aid of Ga. v. Peacock, 315 Ga.App. 573, 574–575(1), 726 S.E.2d 577 (2012).

Whether to certify a class is a matter committed to the discretion of the trial court, State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 499–500(1), 556 S.E.2d 114 (2001), but any exercise of that discretion must comport with the statutory requirements. Moreover, the certification of a class is appropriate only to the extent that “the trial court is satisfied, after a rigorous analysis, that [the statutory requirements] have been satisfied.” Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161(III), 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). See also Rite Aid, 315 Ga.App. at 574–575(1), 726 S.E.2d 577; Kahn, 299 Ga.App. at 321(1), 683 S.E.2d 4. As a part of this rigorous analysis, “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Falcon, 457 U.S. at 160(II), 102 S.Ct. 2364. Indeed, as the United States Supreme Court has explained:

Frequently that rigorous analysis will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped. The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.

Dukes, ––– U.S. at ––––(II)(A), 131 S.Ct. at 2551–52 (citation and punctuation omitted). See also Rite Aid, 315 Ga.App. at 575(1), 726 S.E.2d 577; McGarry, 267 Ga.App. at 25(1), 599 S.E.2d 34.

Upon our review of the record, we conclude that the plaintiffs failed to come forward with evidence sufficient to show the commonality of the particular class that was certified. Georgia–Pacific raises some fair questions about typicality and predominance as well,⁹ but we do not have to reach those questions today. Because commonality is lacking, the trial court abused its discretion when it certified the class, and the Court of Appeals should have reversed the certification.

2. To show commonality, the plaintiffs had to demonstrate that “[t]here are questions of law or fact common to the class,” OCGA § 9–11–23(a)(2), but as the United States Supreme Court recently explained in Dukes, “[t]hat language is easy to misread, since any competently crafted class complaint literally raises common questions.” ––– U.S. at ––––(II)(A), 131 S.Ct. at 2551 (citation and punctuation omitted). Every putative class action presents questions that are, in a sense, “common” to the class. But for commonality under OCGA § 9–11–23(a)(2), not just any “common” questions will do. Commonality depends on the presence of a particular sort of “common” question, and simply reciting a list of questions that are “common” in another sense contributes nothing to the commonality inquiry. ¹⁰Dukes, ––– U.S. at ––––(II)(A), 131 S.Ct. at 2550–52.

To establish the sort of commonality that OCGA § 9–11–23(a)(2) requires, the plaintiffs were required to show “that the class members have suffered the same injury.” ¹¹Dukes, –––U.S. at ––––(II)(A), 131 S.Ct. at 2551 (citation and punctuation omitted). See also Rite Aid, 315 Ga.App. at 575(1), 726 S.E.2d 577(a). To do so, the plaintiffs had to point to a “common contention” that each member of the class had suffered the same instance or course of wrongful conduct, see Dukes, –––U.S. at ––––(II)(A), 131 S.Ct. at 2551, and the plaintiffs also had to show that this “common contention” “is capable of classwide 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.” ¹² Id. “What matters to class certification is not the raising of common questions—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. (citation and punctuation omitted; emphasis in original). Although Dukes makes these points more clearly than our own precedents, it is entirely consistent with those precedents. See Carnett's, 279 Ga. at 129(4), 610 S.E.2d 529 (“A common question is not enough when the answer may vary with each class member and is determinative of whether the member is properly part of the class.” (Citation omitted; emphasis in original.)).

The plaintiffs in this case pointed to a “common contention” that might properly form the basis for a finding of commonality, namely, that their properties were contaminated with hydrogen sulfide gas released from the sludge fields at the Mill. But pointing to a “common contention” is only the first step. The plaintiffs also had to show that this “common contention” is “capable of classwide resolution” with respect to the particular class that the trial court certified. And that is where they came up short.

We do not find in the record evidence by which the plaintiffs might be able to prove on a classwide basis that the entire area by which the class was defined, in fact, was contaminated with hydrogen sulfide gas from the sludge fields. There is, for instance, no scientific evidence of the amounts of gas released from the sludge fields, no evidence of the rate of release, no evidence of the extent to which the amounts released and rates of release varied over time, and no evidence of exactly how the gas would be expected to move through the air upon its release. As for the direction in which gas would be expected to move, the only evidence of local wind patterns is that the prevailing winds over the sludge fields blow away from the class area, and the winds blow from the sludge fields toward any specific location within the class area only about four percent of the time. There is no evidence of the rate at which the gas would be expected to dissipate following its release, and there is no evidence of...