Reader v. Magma-Superior Copper Co.

• Decision Date: 06 November 1973
• Docket Number: MAGMA-SUPERIOR,No. 10414--PR,10414--PR
• Citation: 110 Ariz. 115,515 P.2d 860
• Parties: Mark READER and Frances Reader, his wife, Albert Mayer and Jean Mayer, his wife, on behalf of themselves and all others similarly situated, Appellants, v.COPPER COMPANY, an Arizona corporation, Inspiration Consolidated Copper Company, a Maine corporation, Ray Mines Division, Kennecott Copper Corporation, a New York corporation, American Smelting and Refining Company, a New Jersey corporation, Phelps Dodge Corporation and Magma Copper Company, Appellees.
• Court: Arizona Supreme Court

Page 860

515 P.2d 860

110 Ariz. 115

Mark READER and Frances Reader, his wife, Albert Mayer and Jean Mayer, his wife, on behalf of themselves and all others similarly situated, Appellants, v. MAGMA-SUPERIOR COPPER COMPANY, an Arizona corporation, Inspiration Consolidated Copper Company, a Maine corporation, Ray Mines Division, Kennecott Copper Corporation, a New York corporation, American Smelting and Refining Company, a New Jersey corporation, Phelps Dodge Corporation and Magma Copper Company, Appellees.

No. 10414--PR.

Supreme Court of Arizona, In Banc.

Nov. 6, 1973.

Rehearing Denied Dec. 4, 1973.

Marks & Marks by Richard B. Wilks, Langerman, Begam & Lewis, P.A., by Robert G. Begam, Kenneth L. Abrams, Phoenix, for appellants.

Evans, Kitchel & Jenckes, P.C., by Earl H. Carroll and Harold J. Bliss, Jr., Phoenix, for appellees American Smelting & Refining Co. and Phelps Dodge Corp.

Fennemore, Craig, von Ammon & Udall by Philip E. von Ammon, Phoenix, for appellee Kennecott Copper Corp.

Twitty, Sievwright & Mills by Howard A. Twitty, Phoenix, for appellee Magma Copper Co.

G. Henry Ladendorff, Phoenix, for appellee Inspiration Consolidated Copper Co.

Farringer & Raftery by Leland C. Makemson, Phoenix, for appellee Magma-Superior Copper Co.

HAYS, Chief Justice.

Appellants bring suit against six alleged owners or operators of copper smelters in Arizona and claim to represent a class consisting of all 'persons living in Maricopa County who have occasion to and in fact do breathe and visualize air polluted by defendants.' This class is specifically described in appellants' motion for determination as '(that area) bounded by the Superstition Mountains on the east; the White Tank Mountains on the west; the McDowell Mountains on the north; and the South Mountains on the south. The class of people represented by the plaintiffs herein reside within the aforedescribed area and number approximately 700,000 persons.' Reader seeks compensatory and punitive damages for allegedly intentionally (first claim) and negligently (second claim) discharging pollutants into the air which were transported to the Salt River Valley and which restrict visibility and cause aesthetic injury to the environment. The third claim for relief seeks to exjoin the operation of devices which emit the toxic effluent to prevent continued irreparable injury to the ecology and to appellants' health, comfort and enjoyment of the environment.

Reader filed a motion in the trial court under Rule 23(a)(1) of the Rules of Civil Procedure, 16 A.R.S., for an order permitting the lawsuit to proceed as a class action. The trial court determined, without explanation, that the action could not be maintained as a class action and Reader appealed. The Court of Appeals dismissed the appeal on the ground that the trial court's order was interlocutory and not appealable. We vacated the order of the Court of Appeals without prejudice to either party, with directions to proceed in this court with the appeal on the merits, 108 Ariz. 186, 494 P.2d 708.

The sole question before us is whether the trial court erroneously dismissed appellants' suit as a class action.

Despite the large amount of background material and the history of the evolution and repeated amendments to Rule 23, at the time our opinion was being formulated rearly everything that need be known about the issue before us was contained in Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2 Cir. 1968) (hereinafter referred to as Eisen II). Unfortunately, as our labors and research were about to culminate in an opinion, the Eisen case was again appealed to the U.S. Court of Appeals, Second Circuit, and on May 1, 1973, it handed down a new opinion containing much new law. Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (hereinafter referred to as Eisen III). In our opinion, Eisen III effectively disposes of any previously existing possibility that the instant case could proceed as a class action.

We are well aware that at this juncture the United States Supreme Court has granted certiorari in the latest Eisen case. We consider it appropriate, however, to proceed with our disposition of the case.

Eisen III made it clear that it had not reversed Eisen II but that since the remand of Eisen II, many facts had become clearer because of the hearings held in the district court, and five years of effort in that court had made it clear that the class was unmanageable.

In the instant case, we have concluded that this class is completely unmanageable because of the impossibility of distributing to the class without resorting to 'fluid recovery,' which has been stamped as improper by Eisen III. The instant case is even more difficult because of the vague and indefinite damage suffered, and the impossibility of the vast majority of the members of the class being able to put a value on their individual damages.

A review of the Eisen cases, plus a voluminous number of other class actions, illustrates the usual necessity for the trial court to apply the applicable standards and make appropriate findings of fact, as well as ultimate conclusions of law. See, e.g., City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295, 297 (2 Cir. 1969), Cusick v. N. V. Nederlandsche Combinatie Voor Chemische Industrie, 317 F.Supp. 1022--1023 (E.D.Pa.1970), Purdes v. Carvel Hall, Inc., 301 F.Supp. 1256, 1259 (S.D. Iowa 1969), Berman v. N. H. Jockey Club, Inc., 292 F.Supp. 993, 1000 (D.N.H.1968), rev'd, 414 F.2d 311 (1 Cir. 1969), School District of Philadelphia v. Harper & Row Publishers, Inc., 267 F.Supp. 1001, 1004 (E.D.Pa.1967).

In some cases it is reasonable for the trial judge to make his findings on the basis of the pleadings alone. Chicago v. General Motors Corp., 332 F.Supp. 285, 291 (N.D.Ill.1971). In other circumstances, hearings and the production of evidence may be necessary. Eisen v. Carlisle & Jacquelin, Supra. Illinois v. Harper & Row Publishers, Inc., 301 F.Supp. 484 (N.D.Ill.1969).

A careful examination of the facts and circumstances alleged in the pleadings indicates that the requirements of Rule 23(a)(2) ¹ are not met. There are not questions of law or fact common to the class; in fact, the class attempted to be established is so overbroad as to defeat the very definition of the word. The sheer number that plaintiffs try to embrace gives us pause. The differences in the place of residence, chronological age, length of residence, health and physical condition, economic and social interests of the seven hundred thousand proposed plaintiffs, coupled with the different locations, varying operations, diverse climatic conditions, and varying pollution propensities of the seven different smelter companies indicate everything but common questions of law and fact.

Since the case fails to meet the requirements of Rule 23(a)(2), it logically follows that neither does it comply with Rules 23(a)(3) and 23(a)(4).

This court is well aware that there is a need for viable class action relief within our judicial system. The overbreadth of the plaintiffs' action, however, compels us to affirm the action of the trial court.

Dismissal of plaintiff-appellants' suit as a class action affirmed.

HOLOHAN, J., and JACK L. OGG, Court of Appeals Judge, concur.

Note: Vice Chief Justice CAMERON did not participate in the determination of this matter. JACK L. OGG, Judge of the Court of Appeals, Division One, was called to sit in his stead.

STRUCKMEYER, Justice (dissenting).

It is my opinion that in rejecting plaintiffs' suit as appropriate for a class action the Court has thrown up almost insurmountable roadlocks to the prosecution of class actions in Arizona.

At the outset, I consider the findings and declarations of the Legislature of Arizona of significance to plaintiffs' suit.

'A The legislature finds and declares that air pollution exists with varying degrees of severity within the state, such air pollution is potentially and in some cases actually dangerous to the health of the citizenry, often causes physical discomfort, injury to property and property values, discourages recreational and other uses of the state's resources and is esthetically unappealing.' Air Pollution Control Act, A.R.S. § 36--1700, as amended.

Moreover, the Legislature specifically recognized that the courts have the power to suppress and abate air pollution and that other remedies as provided by the Legislature are in addition to and cumulative to those already existing in the courts.

'It is the purpose of this article to provide additional and cumulative remedies to prevent, abate, and control air pollution in the state. Nothing contained in this article shall be construed to abridge or alter rights of action or remedies in equity under the common law or statutory law, criminal or civil, nor shall any provisions of this article, or any act done by virtue thereof, be construed as estopping the state or any municipality, or owners of land from the exercise of their rights in equity or under the common law or statutory law to suppress nuisances or to abate pollution.' A.R.S. § 36--1718.01. Added Laws 1971, Ch. 190, § 21.

Arizona's Civil Rule 23 was amended in July of 1966 to conform to the amendment to Rule 23 of the Federal Rules. Following the Federal pronouncements it should be liberally construed so as to provide a vehicle to vindicate those claims which if taken singly would be too small to justify legal action.

'As has previously been stated, one of the primary functions of the class suit is to provide 'a device for vindicating claims which, taken individually, are too small to justify legal action but which are of significant size if taken as a group.' Escott v. Barchris Construction Corp., 340 F.2d 731, 733 (2d Cir. 1965), cert. denied Drexel & Co. v. Hall, 382 U.S. 816, 86 S.Ct. 37, 15 L.Ed.2d 63 (1966). * * * Indeed, we hold that the new rule should be given a liberal rather than a restrictive interpretation, * * * and that the...