Wilson v. Ampride, Inc. (In re Motor Fuel Temperature Sales Practices Litig.)
| Decision Date | 19 January 2012 |
| Docket Number | Case No. 06-2582-KHV,Case No. 07-2053-KHV.,MDL No. 1840,Case No. 07-1840-KHV |
| Court | U.S. District Court — District of Kansas |
| Parties | In re: MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION This Document Relates To: Wilson, et al. v. Ampride, Inc., et al., and American Fiber & Cabling, LLC, et al. v. BP Products North America Inc., et al., |
Plaintiffs in Wilson v. Ampride, Inc., 06-2582-KHV (D. Kan.) and American Fiber & Cabling, LLC v. BP Products North America Inc., 07-2053-KHV (D. Kan.) bring class action claims for damages and injunctive relief against defendants which either own, operate or control gas stations in Kansas. Plaintiffs claim that because defendants sell motor fuel for a specified price per gallon without disclosing or adjusting for temperature expansion, they are liable under Kansas law for unjust enrichment, civil conspiracy and violating the Kansas Consumer Protection Act ("KCPA"), K.S.A. §§ 50-623 to 50-679a. On May 28, 2010, the Court certified classes under Rule 23(b)(2), Fed. R. Civ. P., as to the liability and injunctive relief aspects of plaintiffs' claims.1Memorandum And Order (Doc. #1675) at 34-35. It bifurcated and did not certify plaintiffs' claims for damages. Id. at 31-32. Two sets of defendants separately sought permission to appeal that decision under Rule 23(f), Fed. R. Civ. P., and the Tenth Circuit summarily denied both. Order (Doc. #01018487742) in Case Nos. 10-601 and 10-604. On June 20, 2011, the U.S. Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Defendants argue that Dukes requires the Court to decertify the (b)(2) classes. This matter is before the Court on Defendants' Motion To Decertify The Kansas Classes (Doc. #3039) filed November 12, 2011, which the Court construes as a motion for reconsideration of the class certification order,2 and Plaintiffs' Response In Opposition To Defendants' Motion To Decertify Class (Doc. #3133) filed December 21, 2011, which the Court construes as a motion to redefine the class and a renewed motion for class certification under Rules 23(b)(3) and (c)(4).3
Prior to final judgment, the Court has discretion under Rule 23(c)(1)(C) to decertify the class altogether, or to alter or amend its certification order. Fed. R. Civ. P. 23(c)(1)(C); DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1201 (10th Cir. 2010). Indeed, a class certification order is"inherently tentative," particularly before notice is sent to potential class members. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). To determine whether decertification or other alteration or amendment of its certification order is appropriate, the Court applies the rubric for class certification in Rule 23.
The Court has considerable discretion in making class certification decisions. DG, 594 F.3d at 1194. It must, however, conduct a rigorous analysis to determine whether the parties seeking certification have shown that the putative class satisfies the prerequisites of Rule 23. D. Kan. Rule 23.1(d); Dukes, 131 S. Ct. at 2551-52; DG, 594 F.3d at 1194. In doing so, the Court accepts as true the substantive allegations of the complaint but does not blindly rely on conclusory allegations, for "actual, not presumed, conformance with Rule 23(a) [is] . . . indispensable." Id. at 2551; Falcon, 457 U.S. at 160; Shook v. El Paso Cnty., 386 F.3d 963, 968 (10th Cir. 2004) (Shook I). Although the Court does not consider whether plaintiffs will prevail on the merits, this "rigorous analysis" often overlaps with the merits of the plaintiffs' claims. Dukes, 131 S. Ct. at 2251-52; see DG, 594 F.3d at 1194.
This multidistrict litigation includes two cases which plaintiffs filed in the U.S. District Court for the District of Kansas. This order concerns only those two cases. In Wilson v. Ampride, Inc., No. 06-2582 (D. Kan.), Zachary Wilson and Wonderland Miracle Carnival Company bring suit against BP Products North America, Inc. a/k/a BP Corporation North America, Inc.; Casey's General Stores, Inc.; Chevron USA, Inc.; Circle K Stores, Inc.; ConocoPhillips Company; Costco Wholesale Corporation; Petro Stopping Centers, LP; 7-Eleven, Inc.; Equilon Enterprises, LLC d/b/aShell Oil Products US;4 Valero Marketing and Supply Company; and Wal-Mart Stores, Inc. d/b/a Sam's Club.5 In American Fiber & Cabling, LLC v. BP West Coast Products, LLC, No. 07-2053 (D. Kan.), Mathew Cook brings suit against BP West Coast Products, LLC a/k/a BP Corporation North America, Inc.; Casey's General Stores, Inc.; Chevron USA, Inc.; ConocoPhillips Company; Kroger Company; Kum & Go, LC; Quiktrip Corporation; 7-Eleven, Inc.; Equilon Enterprises, LLC d/b/a Shell Oil Products US; and Valero Marketing and Supply Company.6
On May 28, 2010, the Court certified several classes in both Kansas cases. Memorandum And Order (Doc. #1675). In the Wilson case, the Court certified a class under Rule 23(b)(2) as to the liability and injunctive relief aspects of plaintiffs' unjust enrichment and KCPA claims against BP Products North America, Inc. a/k/a BP Corporation North America, Inc., Casey's General Stores, Inc., Chevron USA, Inc., Circle K Stores, Inc., ConocoPhillips Company, 7-Eleven, Inc., Shell Oil Company, Valero Marketing and Supply Company and Wal-Mart Stores, Inc. d/b/a Sam's Club.7It also certified a class under Rule 23(b)(2) as to the liability and injunctive relief aspects of plaintiffs' civil conspiracy claims against BP Products North America, Inc. a/k/a BP Corporation North America, Inc.; Chevron USA, Inc.; Circle K Stores, Inc.; ConocoPhillips Company; and Shell Oil Company. The Court excluded from these classes plaintiffs' claims against Costco Wholesale Corporation, Flying J, Inc. and Petro Stopping Centers, LP.8
In the American Fiber & Cabling case, the Court certified a class under Rule 23(b)(2) as to the liability and injunctive relief aspects of plaintiffs' unjust enrichment and KCPA claims againstConocoPhillips Company; Kum & Go, LC; Quiktrip Corporation; Shell Oil Company; and Valero Marketing and Supply Company. The Court also certified a class under Rule 23(b)(2) as to the liability and injunctive relief aspects of plaintiffs' civil conspiracy claims against ConocoPhillips Company; Kum & Go, LC; Quiktrip Corporation; and Shell Oil Company. The Court excluded from these classes plaintiffs' claims against BP West Coast Products, LLC; Casey's General Stores, Inc.; Chevron USA, Inc.; Kroger Company; and 7-Eleven, Inc.9
On August 20, 2010, the Court consolidated the two Kansas cases and designated Wilson v. Ampride, 06-2582, as the lead case. Order (Doc. #1708). On November 1, 2011, Magistrate Judge James P. O'Hara entered the Pretrial Order (Doc. #2558) which supersedes all pleadings with respect to the issues scheduled for trial on May 7, 2012. Under the Pretrial Order, plaintiffs are limited to three theories: (1) violations of the KCPA, (2) unjust enrichment and (3) civil conspiracy. On behalf of the (b)(2) classes, plaintiffs seek attorneys fees under the KCPA, K.S.A. § 50-634(e)(1) and (2), declaratory judgment that certain motor fuel sales practices are unlawful and violate the KCPA, and various forms of injunctive relief.
On plaintiffs' claims for unjust enrichment and civil conspiracy, the class certification order defined the liability and injunctive relief classes as "All individuals and entities that, at any time between January 1, 2001 and the present, purchased motor fuel at retail at a temperature greater than 60 degrees Fahrenheit, in the State of Kansas, from a gas station owned, operated or controlled by one or more of the Defendants." Memorandum And Order (Doc. #1675). With regard to plaintiffs' KCPA claims, the Court defined the liability and injunctive relief classes as "All individuals, soleproprietors and family partnerships that, at any time between January 1, 2001 and the present, purchased motor fuel at retail at a temperature greater than 60 degrees Fahrenheit, in the State of Kansas, from a gas station owned, operated or controlled by one or more of the Defendants." Id. The Court excluded from all classes (1) federal judges who have presided over this case, (2) persons employed by defendants and (3) affiliates of defendants. Id.
The Court now addresses (1) whether to reconsider its prior certification of the (b)(2) classes in light of Dukes; (2) whether to redefine the classes; and (3) whether to certify classes as to the liability and injunctive relief aspects of plaintiffs' three claims under Rules 23(b)(3) and (c)(4).10
In light of Dukes, defendants ask the Court to reconsider its class certification decision and decertify the classes. Specifically, they argue that plaintiffs' claims do not satisfy the commonality requirement of Rule 23(a)(2) and do not qualify for class certification under Rule 23(b)(2). Although Dukes certainly clarified certain aspects of the commonality requirement and narrowed the permissible scope of classes certified under Rule 23(b)(2), it is not fatal to plaintiffs' class action. In responding to defendants' motion, plaintiffs ask the Court to redefine the already-certified Rule 23(b)(2) classes and to certify classes under Rules 23(b)(3) and (c)(4) as to the liability aspects of plaintiffs' claims. Although plaintiffs have asked the Court to recalibrate the class definitions, the changes do not affect the Court's original class certification decision.
As noted above, the Court has certified several classes in the two Kansas cases. Plaintiffs' Response In Opposition To Defendants' Motion To Decertify Class (Doc. #3133) filed December 21, 2011, asks the Court to redefine the already-certified (b)(2) classes and to certify classes as to the liability aspects of plaintiffs' claims under Rules 23(b)(3) and (c)(4).
The Court has broad authority to redefine a class before final judgment. See Fed....
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