         In the United States Court of Federal Claims
                                         No. 13-838L
                                    (Filed: April 4, 2014)

                                            )
STEPHANIE S. TURNER, et al.,                )
                                            )
                      Plaintiffs,           )      Rails-to-Trails; Class Action Denial;
                                            )      Lack of Superiority; Opportunity to
v.                                          )      Join Prior Class Action Arising from
                                            )      Same NITU
THE UNITED STATES,                          )
                                            )
                      Defendant.            )
                                            )

                      ORDER DENYING CLASS CERTIFICATION

       Pending before the court is plaintiff’s motion to certify the above-captioned case as a

class action pursuant to Rule 23 of the Rules of the United States Court of Federal Claims

(“RCFC”). Plaintiff argues that a potential class of approximately 80 plaintiffs exists and

that class certification is the most effective method to bring those potential plaintiffs into the

litigation without any detrimental effect on the United States. In response, the United States

(“the government”) argues that the potential plaintiffs received notice to join class actions in

two predecessor cases, leaving few potential plaintiffs who are actually likely to join the

litigation and none who have not already received adequate notice. For the reasons

discussed below, the plaintiff’s motion is DENIED.

I.     BACKGROUND

        This case involves a recreational trail located between Memphis and Cordova in

Shelby County, Tennessee. On October 26, 2007, the Surface Transportation Board
(“STB”) issued a Notice of Interim Trail Use (“NITU”) for a 13.34-mile railroad corridor.

Counsel for plaintiffs have previously filed two cases regarding this corridor, Thomas v.

United States, No. 10-54, and Lambert v. United States, No. 12-395. The legal and factual

background of this case is discussed in the court’s August 29, 2012 opinion and order in

Thomas and will not be repeated here. Thomas v. United States, No. 10-54 (Fed. Cl. August

29, 2012).

          Plaintiffs filed the present case on October 25, 2013, exactly one day before the six-

year statute of limitations would have run under 28 U.S.C. § 2501. Following briefing, oral

argument was held on March 10, 2014.

II.       STANDARD OF REVIEW

          In this court, the rules governing class actions are set forth in RCFC 23. That rule

states:

          (a) Prerequisites. One or more members of a class may sue as representative
          parties on behalf of all members only if:
                 (1) the class is so numerous that joinder of all members is
                 impracticable;
                 (2) there are questions of law or fact common to the class;
                 (3) the claims or defenses of the representative parties are typical of the
                 claims or defenses of the class; and
                 (4) the representative parties will fairly and adequately protect the
                 interests of the class.
          (b) Class Actions Maintainable. A class action may be maintained if RCFC
          23(a) is satisfied and if:
                 (1) [not used];
                 (2) the United States has acted or refused to act on grounds generally
                 applicable to the class; and
                 (3) the court finds that the questions of law or fact common to class
                 members predominate over any questions affecting only individual
                 members, and that a class action is superior to other available methods
                 for fairly and efficiently adjudicating the controversy. The matters
                 pertinent to these findings include:


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                      (A) the class members’ interests in individually controlling the
                      prosecution of separate actions;
                      (B) the extent and nature of any litigation concerning the
                      controversy already begun by class members;
                      (C) [not used]; and
                      (D) the likely difficulties in managing a class action.

RCFC 23(a)-(b). Under this rule, the requirements for a class action fall into five categories,

all of which must be satisfied: (1) numerosity of plaintiffs, (2) commonality of questions of

law or fact, (3) typicality of the representative parties’ claims, (4) adequacy of the

representative parties to fairly represent the class, and (5) superiority of the class action as

the fairest and most efficient means of resolving the case. Barnes v. United States, 68 Fed.

Cl. 492 (2005).

       In considering a motion for class certification, a trial court is required to perform “a

rigorous analysis” before determining that certification is proper, which may involve “some

overlap with the merits of the plaintiff’s underlying claim.” Wal-Mart Stores, Inc. v. Dukes,

131 S. Ct. 2541, 2551 (2011) (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147,

160-61 (1982)). This is because “[t]he class action is ‘an exception to the usual rule that

litigation is conducted by and on behalf of the individual named parties only.’” Id. at 2550

(quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). It is the party seeking class

certification that bears the burden of proving by a preponderance of the evidence that each

of the five requirements is satisfied. See Geneva Rock Prods., Inc. v. United States, 100

Fed. Cl. 778, 782 (2011) (citing Filosa v. United States, 70 Fed. Cl. 609, 615 (2006)).

III.   DISCUSSION




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       The issues facing the court are whether plaintiffs satisfy the numerosity and

superiority requirements of RCFC 23. There is no dispute between the parties that the

plaintiffs have satisfied the commonality, typicality, and adequacy requirements.

       As discussed above, in order to demonstrate numerosity, plaintiffs must show that the

class is “so numerous that joinder of all members is impracticable.” RCFC 23(a)(1). This

analysis includes several factors, such as “the number of class members, the location of the

members of the proposed class, the size of the individual claims, and the nature of the

action.” King v. United States, 84 Fed. Cl. 120, 123-24 (2008) (citing 7A Charles Alan

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1762 (3d ed.

2005)).

       In order to demonstrate superiority, plaintiffs must show that “a class action would

achieve economies of time, effort, and expense, and promote uniformity . . . without

sacrificing procedural fairness or bringing about other undesirable results.” Barnes, 68 Fed.

Cl. at 499 (quoting Fed. R. Civ. P. 23, Advisory Committee Notes (1966)).

       Plaintiffs argue that the class consists of 80 potential members encompassing 85

individual parcels abutting or underlying the railroad right-of-way. Plaintiffs further argue

that, although the parcels are all along a 13.34-mile strip, the potential class members are

dispersed throughout ten states. Additionally, plaintiffs argue that the size of the claims are

such that some individual claims may not be pursued separately due to the costs of

litigation. Concerning superiority, plaintiffs argue that certification as a class is superior

because it will allow the court to achieve economies of time, effort, and expense while

eliminating inconsistent adjudications.


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       In response, the government argues that joinder of the parties is very practicable in

this case, obviating the need for class certification. Concerning numerosity, the government

argues that plaintiffs have identified all potential class members and, through notices made

for the classes in Thomas and Lambert, all potential class members have received some

form of notice in prior cases. The government does not dispute the number of potential

class members, but rather argues that the fact that all potential class members have already

received at least one opportunity to join a class in either Thomas or Lambert demonstrates

that the class is unlikely to contain many of the potential class members. Concerning

superiority, the government similarly argues that the notice made in the previous two cases

defeats any benefit that would otherwise be gained from class certification in this case.

Indeed, the government argues that the opposite is true in this case: because notice has

already been made, certifying a class in this case would impose significant burdens on the

court and the government without providing a benefit to the potential class members.

       The court agrees with the government. For the reasons below, plaintiffs have failed

to demonstrate that they meet the numerosity or superiority requirements for class

certification.

       First, plaintiffs have already identified all potential class members. In its motion,

plaintiffs include a list of those potential class members, containing a mailing address for

each one. Plaintiffs argue that class action status will allow them to provide notice to

further potential plaintiffs. In response, the government argues that all potential class

members have previously received notice in Thomas and Lambert, noting that all but 15

received mailed notices, while the remaining 15 presumably received notice by publication.


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The government also argues that plaintiffs’ counsel has already spent a significant amount

of time soliciting clients, indicating that there would be no benefit to further notice. Indeed,

plaintiffs’ counsel admits that he has been in contact with the potential class members in this

case. The court agrees with the government. Plaintiffs have not demonstrated that

certifying a class for the purpose of providing notice to potential plaintiffs is not redundant

on the grounds that all potential plaintiffs have received notice in prior cases and have had

previous opportunities to join a class covering this same trail. As a result, the court sees no

reason to authorize a third class action concerning this NITU.

       Second, concerning superiority, because the threshold issues of liability for this trail

have already been resolved in Thomas and Lambert, class certification would provide no

economies of time, effort, or expense. For each of the plaintiffs that have joined this case,

the court must determine liability and just compensation with a factual analysis that is

unique to each individual claim.

IV.    CONCLUSION

       As the court has determined that plaintiffs have failed to demonstrate numerosity or

superiority, plaintiffs’ motion for class certification is hereby DENIED.

IT IS SO ORDERED.



                                                           s/Nancy B. Firestone
                                                           NANCY B. FIRESTONE
                                                           Judge




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