Bozes v. Parish of St. Bernard

252 F.R.D. 313, 2008 U.S. Dist. LEXIS 68793, 2008 WL 4271622
CourtDistrict Court, E.D. Louisiana
DecidedSeptember 11, 2008
DocketCivil Action No. 06-7127
StatusPublished
Cited by1 cases

This text of 252 F.R.D. 313 (Bozes v. Parish of St. Bernard) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bozes v. Parish of St. Bernard, 252 F.R.D. 313, 2008 U.S. Dist. LEXIS 68793, 2008 WL 4271622 (E.D. La. 2008).

Opinion

ORDER AND OPINION

STANWOOD R. DUVAL, JR., District Judge.

Before the Court is the “Motion for Class Certification Pursuant to Federal Rule of Civil Procedure 23” filed on behalf of plaintiffs John Bozes, et al. Having reviewed the pleadings, memoranda, and relevant law, the Court, for the reasons assigned, DENIES the motion.

BACKGROUND

On August 29, 2005, Hurricane Katrina struck St. Bernard Parish, Louisiana leaving vast destruction in its wake. Storm surge flooded the parish, forcing the evacuation of [314]*314the remaining residents. Some residents were able to take their dogs to Sebastian Middle School, PGT Beauregard Middle School, or St. Bernard High School when they evacuated from their homes to one of those schools, but later those residents were required to leave their dogs at the school when they were evacuated from the school to a location outside St. Bernard Parish. Other residents who were being evacuated from their homes were instructed by authorities to leave their pets at their home and were not allowed to take them to the evacuation staging area. Upon returning to St. Bernard Parish in late September, some residents found their dogs dead, apparently as a result of having been shot, and other residents or former residents heard that their dog(s) had died apparently of gunshot wounds.

John Bozes, Carol Ann Hamm, Robert Hamm, Annette Centorbi, Judy Migliori, Santo Migliori, Joyce Stubbs, Ronald Hallel, and Raymond Hallel filed suit individually and on behalf of others similarly situated alleging that in the weeks following Hurricane Katrina deputies and officers of the St. Bernard Sheriffs Office “with the authorization of, acquiescence by, or ratification of the Sheriffs Office — undertook a policy and practice of shooting dogs they knew had been left behind by their owners.” (Doc. 70). Plaintiffs and the putative class they represent, urge that the individual defendants,1 acting under color of state law violated plaintiffs’ Fourth Amendment right to be free of unlawful seizures of their private property, i.e., their dogs. Pursuant to 42 U.S.C. § 1983 plaintiffs seek damages for the killing of their dogs. Additionally, plaintiffs assert a Louisiana state law claim for intentional infliction of emotional distress.

Plaintiffs filed this motion seeking to have the following class certified: “All persons whose dogs were killed due to the acts of Defendants during the period of time from August 29, 2005-September 23,2005.”

Law and Analysis

In determining the propriety of a class action, a court has no authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Bertulli v. Independent Association of Continental Pilots, 242 F.3d 290, 297 n. 29 (5th Cir.2001); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). “[T]he question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Id. at 2153, citing Miller v. Mackey International, 452 F.2d 424, 427 (5th Cir.1971).

Rule 23 of the Federal Rules of Civil Procedure provides the criteria to be applied in determining whether to certify a class. A district court has great discretion in determining whether to certify a class; however, the Supreme Court has noted that certification should not be granted unless the Court is satisfied after rigorous analysis, that all prerequisites have been met. General Tel. Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The party moving to certify a class must demonstrate that each of the elements of Rule 23(a) is satisfied and that the action falls within one of the categories of class actions delineated in Rule 23(b). In re Ford Motor Co. Bronco II Product Liability Litigation, 177 F.R.D. 360, 365 (E.D.La.1997). Subsection (a) which sets forth the four prerequisites for a class action states:

One or more members of a class may sue or be sued as representative parties on behalf of all 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
[315]*315(4) the representative parties mil fairly and adequately protect the interest of the class.

Fed. R.Civ. P. 23(a).

Plaintiffs seek to have this class certified pursuant to Rule 23(b)(3) which requires that:

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 the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(A) the class members’ interest in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in a particular forum; and
(D) the likely difficulties in managing a class action.

Rule 23(a)(1) requires that the proposed class be so numerous that the joinder of all members is impracticable. Although there is no absolute limitation on the number of members necessary to certify a class action, the Supreme Court, in examining whether fifteen (15) employees was sufficient to constitute a class noted “[wjhen judged by the size of the putative class in various cases in which certification has been denied, this [number] would be too small to meet the numerosity requirement.” American Tel. Co. of the Northwest, Inc. v. Equal Employment Opportunity Commission, 446 U.S. 318, 320, 100 S.Ct. 1698, 1706, 64 L.Ed.2d 319 (1980).2 “In order to satisfy his burden with respect to this prerequisite, a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members.” Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030

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Cite This Page — Counsel Stack

Bluebook (online)
252 F.R.D. 313, 2008 U.S. Dist. LEXIS 68793, 2008 WL 4271622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bozes-v-parish-of-st-bernard-laed-2008.