Melton v. Carolina Power & Light Co., Civil Action No.: 4:11-cv-00270-RBH

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtR. Bryan Harwell
PartiesGladys S. Melton, by Ernie Dutton her power of attorney, on behalf of other persons similarly situated, Plaintiff, v. Carolina Power & Light Co., Defendant.
Decision Date25 June 2012
Docket NumberCivil Action No.: 4:11-cv-00270-RBH

Gladys S. Melton, by Ernie Dutton her power of attorney, on behalf of other persons similarly situated, Plaintiff,
Carolina Power & Light Co., Defendant.

Civil Action No.: 4:11-cv-00270-RBH


Dated: June 25, 2012


This matter is before the Court pursuant to the Motion for Class Certification, Doc. # 69, filed by Plaintiff Gladys S. Melton, by Ernie Dutton her power of attorney, on behalf of other persons similarly situated ("Plaintiff") on October 25, 2011. Defendant Carolina Power & Light Company d/b/a Progress Energy Carolinas, Inc. ("PEC" or "Defendant") filed a response on November 23, 2011. On May 18, 2012, this Court held a hearing on the Motion where it heard from all parties.1 For the reasons discussed below, Plaintiff's Motion is denied.


Defendant is a public utility engaged in the business of electricity generation, procurement and transmission, as well as natural gas procurement, transportation and storage. Defendant maintains electricity rights-of-way, or easements, allowing it to transmit and distribute electric power to the public over Plaintiff's property and over the property of similarly situated individuals.

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Defendant has easements in South Carolina for two different types of power lines. Transmission lines are high-voltage lines that run from power-generating facilities to substations and from substation to substation. Distribution lines are lower-voltage lines that run from substations to individual customers. It is undisputed that the transmission line easements, which are at issue in this case, allow for the transmission of electricity and for communications in connection thereto, such as communicating between substations as to the amount of electricity to be transmitted. [See Mot. for Certification, Doc. # 69-1, at 2-3.]

In the 1980s, Defendant began installing fiber optic cable on some of these easements. To date, Defendant claims it has installed approximately 151 miles of fiber optic cable in both its transmission and distribution line easements in South Carolina. According to Plaintiff, the initial purpose of installing the fiber optic cable in the transmission line easements was to accomplish communications necessary to transmit electricity.

Plaintiff claims that Defendant has allowed telecommunications companies, for a fee, to use the fiber optic cable installed in the transmission line easements for general telecommunications purposes. Plaintiff claims that most of the transmission line easements do not, however, allow for this use, and that this use exceeds the scope of the easements that were granted to Defendant. Plaintiff alleges that Defendant never informed Plaintiff or similarly situated individuals of this general telecommunications use, and that Defendant has not compensated Plaintiff or others for this use. Accordingly, Plaintiff is seeking class certification in order to pursue their claims against Defendant.

The class definition for which Plaintiff seeks class certification is as follows:

All owners of real property in South Carolina over and/or under which PEC has transmission easements or other transmission line rights-of-way or easements used

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in connection with transmission of general telecommunications and over and/or in which such easements PEC has constructed or allowed to be constructed fiber optic communication lines and/or wireless communication apparatuses that have been used to transmit communications other than PEC's electricity-related internal communications without the right to do so. Excluded from the class are railroad rights-of-way, rights-of way owned by any federal, state and/or local governmental agency; and any judge who has decided some or all issues in the case and any persons related to the judge in a manner that would disqualify the judge from hearing the case.
Mot. for Certification, Doc. # 69-1, at 20.

Plaintiff has produced more than 700 easements that it claims prohibit the use of fiber optic cable for general telecommunications. Plaintiff has categorized the easements into five different easement forms, sorted by the "purpose clause" of the easement, or the key language within the easement grant that defines Defendant's primary rights.

Standard of Review

"A district court has broad discretion in deciding whether to certify a class." Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 317 (4th Cir. 2006). The party seeking class certification bears the burden of demonstrating that all requirements of class certification are met. In re A.H. Robins Co., 880 F.2d 709, 728 (4th Cir. 1989).

In determining the appropriateness of certification, courts should first consider the definition of the class. See Anselmo v. West Paces Hotel Gr., LLC, No. 9:09-2466, 2011 WL 1049195, at *18 (D.S.C. Mar. 18, 2011); Cuming v. S.C. Lottery Comm'n, Civil Action No. 3:05-3608, 2008 WL 906705, at *1 (D.S.C. Mar. 31, 2008). "Although not specifically mentioned in the rule, an essential prerequisite of an action under Rule 23 is that there must be a 'class.' "Anselmo, 2011 WL 1049195, at *18 (citing 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1760 (1986 & Supp. 2007)). "The proposed class definition must not depend on

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subjective criteria or the merits of the case or require an extensive factual inquiry to determine who is a class member." Cuming, 2008 WL 906705, at *1 (citing In re Copper Antitrust Litig., 196 F.R.D. 348, 353 (W.D. Wis. 2000)).

Once an adequate class definition is set forth, the moving party bears the burden of proving that the purported class meets the requirements of Federal Rule of Civil Procedure 23. Rule 23 establishes a two part-test for class action certification: the action must satisfy the four subparts of Rule 23(a), as well as the additional requirements of either Rule 23(b)(1), 23(b)(2), or 23(b)(3). See Fed. R. Civ. P. 23(b). "Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule." Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011). To meet this burden, a party must do more than articulate a hypothetical application of the rule. Instead, a party must produce enough evidence to demonstrate that class certification is, in fact, warranted. Id. "[C]ertification is proper only if 'the trial court is satisfied, after a rigorous analysis, that the prerequisites of [Rule 23] have been satisfied.' " Id. (internal citations omitted); see also Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982).

I. Rule 23(a) requirements

A moving party must establish each of the four prerequisites set forth in Rule 23(a): 1) numerosity of the members of the class such that joinder of all members is impracticable; 2) questions of law and fact that are common to the class; 3) the claims or defenses of the class representatives are typical of the claims or defenses of the class members; and 4) adequacy of representation. Fed. R. Civ. P. 23(a).

A. Numerosity

To satisfy the numerosity requirement of Rule 23(a), plaintiff must show that joinder is

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impracticable. Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 147 (4th Cir. 2001). No specific number is needed to satisfy this requirement. Brady v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir. 1984). The "practicability of joinder depends on many factors, including, for example, the size of the class, ease of identifying its numbers and determining their addresses, facility of making service on them if joined and their geographic dispersion." Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986); see also Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir.1980); Christman v. Am. Cyanamid Co., 92 F.R.D. 441, 451 (D.W.Va.1981).

B. Commonality

Commonality requires that there are questions of law or fact common to the class. Thorn, 445 F.3d at 319. "A common question is one that can be resolved for each class member in a single hearing, such as the question of whether an employer engaged in a pattern and practice of unlawful discrimination against a class of its employees." Id. In other words, "[the class] claims must depend upon a common contention 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." Dukes, 131 S.Ct. at 2551. "What matters to class certification [ ] is not the raising of common questions . . . but, rather the capacity of a class[-]wide proceeding to generate common answers apt to drive the resolution of the litigation." Id. (internal citation and quotation marks omitted).

C. Typicality

"Typicality requires that the claims of the named class representatives be typical of those of the class; 'a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.' " Lienhart, 255 F.3d at 146. "A plaintiffs claim cannot be so

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different from the claims of absent class members that...

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