Boos v. AT & T, Inc.

252 F.R.D. 319, 2008 WL 4286578
CourtDistrict Court, W.D. Texas
DecidedAugust 18, 2008
DocketCivil Action No. 07-CV-727-WWJ
StatusPublished

This text of 252 F.R.D. 319 (Boos v. AT & T, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boos v. AT & T, Inc., 252 F.R.D. 319, 2008 WL 4286578 (W.D. Tex. 2008).

Opinion

MEMORANDUM AND ORDER

WILLIAM WAYNE, Senior District Judge.

Before the Court is Plaintiffs’ Motion for Class Certification, pursuant to Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs in this action are Donald O. Boos, Wanda N. Myers, and Barbara B. Phillips, all retirees of Defendant BellSouth Corporation, which is now a subsidiary of Defendant AT & T, Inc. Plaintiffs bring this action on behalf of themselves and a putative class (Docket No. 33.) Through this action, they seek civil enforcement under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U. S.C. §§ 1001-1461 (2004), against Bell-South Corporation and AT & T, Inc., alleging that (1) a benefit known as telephone concession, which was provided to certain employees of BellSouth after retirement, constitutes a defined benefit pension plan under ERISA (hereinafter, “plan claims”); and (2) that Defendants violated ERISA in administering and maintaining the telephone concession plan (hereinafter, “benefit claims”).

Plaintiffs move that: (1) the plan claims class consists of themselves, along with current employees, former employees, and retirees eligible to receive the telephone concession outside the Defendants’ local service areas; and (2) the benefit claims class consists of all participants and beneficiaries of the telephone concession plan.

Plaintiffs’ Motion for Class Certification is unopposed. Nevertheless, pursuant to Federal Rule of Civil Procedure 23(c)(1)(A), “the court must determine by order whether to certify the action as a class action....” The Fifth Circuit has also held that in order to certify a class, a district court must specifically find that the proposed class satisfies the requirements of Rule 23. Vizena v. Union Pac. R.R. Co., 360 F.3d 496, 503 (5th Cir.2004).

Having considered the motion and response, this Court finds that Plaintiffs’ proposed class is sufficiently defined and meets the requirements of Federal. Rules of Civil Procedure 23(a) and (b). For the reasons stated herein, Plaintiffs’ motion is GRANTED.

A. Fed. Rule Civ. P. 23(a)

The requirements of Rule 23(a) are: (1) numerosity, (2) common questions of law or fact, (3) typicality of the claims of the representative plaintiffs, and (4) adequacy of representation by the named plaintiff Plaintiffs have satisfied the requirements of maintaining a class action of Federal Rule of Civil Procedure 23(a).

The two classes are intricately connected. Once the plan claims class is certified, if the Court then finds that the telephone concession plan is an ERISA pension plan, then members of the plan claims class shall seek the benefit claims and will thus need to be certified as the benefit claims class. The propriety of doing so has been addressed before both by the Fifth Circuit and this Court. Bertulli v. Indep. Ass’n of Cont’l Pilots, 242 F.3d 290, 298 (5th Circuit 2001); Stoffels v. SBC Commc’ns, Inc., 238 F.R.D. 446, 450 (W.D.Tex.2006). For the sake of simplicity, and given the relationship between the proposed classes, they shall be treated together for the Rule 23(a) analysis, although the Court notes that this is not a [322]*322judgment on the merits of the claims themselves.

1. Numerosity

Rule 23(a)(1) states that the moving party must show that “the class is so numerous that joinder of all parties is impracticable.” Plaintiffs have met this burden. To determine impracticability, the court may consider the following circumstances, among others: class size, geographic diversity of the class, and the ability to identify class members for the purpose of joinder. Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir.1999); Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir.1981).

In examining class size, the Fifth Circuit has found that classes numbering in the hundreds are sufficiently numerous to render joinder of all parties impracticable. Mullen, 186 F.3d at 624 (explaining that a class of 100 to 150 generally satisfies the numerosity requirement). Plaintiffs’ proposed class consists of current employees, former employees, and retirees who are eligible to receive the telephone concession outside of the Defendants’ local service area. According to Defendants’ answers to interrogatories, 7,610 retirees and 26,790 current employees are eligible for the telephone concession plan. Plaintiffs’ proposed class, therefore, meets the numerosity requirement.

Along with class size, courts also turn to geographic diversity in order to assess numerosity. Within the Fifth Circuit, the district courts have taken a permissive view with regards to geographic diversity. See, e.g., Choice Inc. of Tex. v. Graham, No. Civ.A. 04-1581, 2005 WL 1400408, at *3 (E.D.La. June 3, 2005) (finding that class representatives residing in two different states provides adequate geographic diversity); Ibarra v. Tex. Employment Comm’n, 598 F.Supp. 104, 108 (E.D.Tex.1984) (finding that class members “dispersed throughout Texas” provides adequate geographic diversity). Plaintiffs’ proposed class members reside in Pennsylvania, Alabama, and South Carolina, among other places, and the class is thus geographically diverse. (Pls.’ Mot. Mem. 7.)

Additionally, courts will turn to the parties’ ability to identify the class members, in order to determine whether the class is so numerous as to be impractical The “inability to readily ascertain [class members’] identities weights heavily in favor” of finding that joinder is impracticable. In re Dynegy, Inc. Secs. Litig., 226 F.R.D. 263, 286 (S.D.Tex.2004); see also Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d at 1038 (stating that one factor to determine numerosity and impracticability is “the ease with which class members may be identified”). Plaintiffs have requested discovery to establish a more exact counting of the class members, but Defendants have not been able to provide this information. (Pls.’ Mot. Mem. at 8.) As a result, neither party is able to identify the class members. The inability of either party to readily or easily identify all the class members illustrates the impracticability of joinder, and Plaintiffs have thus met the requirement of impracticability.

Plaintiffs have demonstrated that their proposed class is large and geographically diverse and that it is difficult for either party to identify all of the class members; therefore, they have fulfilled the numerosity and impracticability requirements of Federal Rule of Civil Procedure 23(a)(1).

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252 F.R.D. 319, 2008 WL 4286578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boos-v-at-t-inc-txwd-2008.