Bafus v. Aspen Realty, Inc.

236 F.R.D. 652, 2006 U.S. Dist. LEXIS 42683, 2006 WL 1749648
CourtDistrict Court, D. Idaho
DecidedJune 23, 2006
DocketNos. CV-04-121-S-BLW, CV-06-059-S-BLW, CV-06-060-S-BLW, CV-06-061-S-BLW
StatusPublished
Cited by1 cases

This text of 236 F.R.D. 652 (Bafus v. Aspen Realty, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Idaho primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bafus v. Aspen Realty, Inc., 236 F.R.D. 652, 2006 U.S. Dist. LEXIS 42683, 2006 WL 1749648 (D. Idaho 2006).

Opinion

MEMORANDUM DECISION AND ORDER

WINMILL, Chief Judge.

INTRODUCTION

The Court has before it four separate motions for class certification in four separate eases (Case No. CV-04-121-S-BLW, Docket No. 92) (Case No. CV-06-59-S-BLW, Docket No. 12) (Case No. CV-06-60-S-BLW, Docket No. 12) and (Case No. 06-61-S-BLW, Docket No. 14). Although the cases are proceeding separately, the Court held a combined hearing in all four cases because the legal issues are similar in each case. This Memorandum Decision and Order will address all four motions, making separate determinations for each case where necessary. The Court will reference “Plaintiffs” when referring to all plaintiffs in all four eases, and “Defendants” when referring to all defendants in all four cases. The Court will refer to a plaintiff or defendant by proper name when referring to them individually.

BACKGROUND

In their complaints, Plaintiffs claim that Defendants illegally charged them a commission based on the price of an undeveloped lot plus the price of the house to be built on the lot, instead of a commission based solely on the price of the undeveloped lot. Plaintiffs’ central cause of action alleges that Defendants’ actions constitute a tying arrangement in violation of the Sherman Antitrust Act. In each case, Plaintiffs assert that they are simply one of hundreds of individuals who were illegally charged the commission by one of the defendants when they purchased a lot in a subdivision exclusively marketed by the defendant. Plaintiffs therefore seek class certification in each case.

ANALYSIS

A. Legal Standard for Class Certification

Plaintiffs seek certification of the following class:

All persons who: (1) bought an undeveloped lot in a subdivision in the Boise, Idaho greater metropolitan area in which Defendant has or had the exclusive right to market or sell the subdivision lots on behalf of the developer; (2) were required to build a house on the lot in order to buy the lot; and (3) were required to pay Defendant a commission based on the cost of the [655]*655lot plus the actual or estimated cost of the house in order to buy the lot.1

Plaintiffs have the burden of establishing whether the proposed class satisfies the four requirements of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. See Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir.1998). Additionally, Plaintiffs must show that the action is maintainable under Federal Rule of Civil Procedure 23(b)(1), (2) or (3). Id. at 1022. In these four cases, Plaintiffs seek certification under 23(b)(3), which allows certification where the court determines that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

Classes may be certified only if the Court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) and (b) have been satisfied. See Chamberlan v. Ford Motor Co., 402 F.3d 952, 961 (9th Cir.2005) (internal citations omitted). However, sometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiffs claim. Id. Thus, the rigorous analysis does not always result in a lengthy explanation or in-depth review of the record. Id. “It has long been established that some cases simply require more explication than others.” Id.

B. Rule 23(a) Requirements

As noted above, Plaintiffs have the burden of establishing that the proposed class satisfies the four requirements of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.

1. Numerosity

The numerosity requirement is fulfilled if “the class is so large that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). The leading treatise on class actions states that “when the class is very large, for example, number in the hundreds, joinder will be impracticable; but in most cases, the number that will, in itself, satisfy the Rule 23(a)(1) prerequisite should be much lower.” 1 Newberg on Class Actions, § 3:5 (4th Ed.2004). “The difficulty in joining as few as 40 class members should raise the presumption that joinder is impracticable, and the plaintiff whose class is that large or larger should meet the test of Rule 23(a)(1) on that fact alone.” Id.

Plaintiffs estimate that the proposed class in each case contains hundreds of members. Plaintiffs assert that, based on discovery responses, somewhere between 24 and 101 subdivisions are encompassed by the proposed class definition in each case. (See Berman Affidavit, Attachment 2, in each case). Plaintiffs contend that because each subdivision comprises numerous lots, the number of class members far exceeds the minimum required.

Defendants do not necessarily disagree with the assertion that each defendant exclusively marketed somewhere between 24 and 101 subdivisions. Defendants contend, however, that the buyers of the lots in those subdivisions, including Plaintiffs, do no fit within the putative class defined by Plaintiffs.

Defendants assert that the buyers, including Plaintiffs, did not purchase undeveloped lots. However, the evidence now before the Court suggests that lots were undeveloped when the buyers entered into the purchase and/or construction agreements with the sellers. (See Miller Deck, Ex A in Case No. CV-06-59, Pennigton Aff., Ex. C in Case No. CV-06-61, Evans Aff., Ex. 1 in Case No. CV-06-60, and Thomas Aff., Ex. 2 in Case No. CV-04-121). Moreover, it does not appear that any buyer was able to purchase a lot without being required to build a house [656]*656on the lot. Additionally, although Defendants argue that it was the home builders, not Defendants, who required the buyers to build houses on the lots, this does not necessarily defeat Plaintiffs’ claim that they were required to pay Defendants a commission based on the cost of the lot plus the cost of the house.

Defendants also contend that the sellers, not Plaintiffs, paid the commissions to Defendants, as shown in the closing documents. Plaintiffs counter that the question is not where the legal incidence is deemed to have fallen, but whether Defendants’ alleged tying violations caused Plaintiffs to suffer antitrust injuries. Plaintiffs suggest that they ultimately paid higher prices for the lots and houses in order to cover the tied commissions. For purposes of determining class certification, the Court agrees with Plaintiffs. This issue, however, will likely be fleshed out on summary judgment, after further discovery has occurred.

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Bluebook (online)
236 F.R.D. 652, 2006 U.S. Dist. LEXIS 42683, 2006 WL 1749648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bafus-v-aspen-realty-inc-idd-2006.