Chesher v. Neyer

215 F.R.D. 544, 2003 U.S. Dist. LEXIS 10452, 2003 WL 21436109
CourtDistrict Court, S.D. Ohio
DecidedMay 13, 2003
DocketNo. C-1-01-566
StatusPublished
Cited by3 cases

This text of 215 F.R.D. 544 (Chesher v. Neyer) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chesher v. Neyer, 215 F.R.D. 544, 2003 U.S. Dist. LEXIS 10452, 2003 WL 21436109 (S.D. Ohio 2003).

Opinion

ORDER

SPIEGEL, Senior District Judge.

This matter is before the Court on Plaintiffs’ Motion for Class Certification (doc. 30), Defendant Parrott’s Memorandum in Opposition (doc. 46), Hamilton County’s Memorandum in Opposition (doc. 49), Defendant Con-don’s Memorandum in Opposition (doc. 50), and Plaintiffs’ Replies (doc. 70 & 73). The Court held a hearing on Plaintiffs’ Motion on May 7, 2003.

The following facts have been derived from the various pleadings, motions, and discovery created during the course of this litigation. This lawsuit involves Plaintiffs who are family members of deceased relatives held in custody of Hamilton County at the Hamilton County morgue during a five-month period ending January 2001 (doc. 31). Plaintiffs allege that Defendants either permitted or engaged in the practice of posing, disrupting, and photographing the remains of their relatives (Id.). Plaintiffs also allege that crime scene photographs and autopsy photographs of their relatives were illegally released to the public (Id.). Plaintiffs’ Amended Complaint, filed March 28, 2002, names as Defendants Hamilton County, Chief Deputy Coroner Robert Pfalzgraf, Staff Pathologist Gary Utz, Administrative Aide to the Coroner, Terry Daly, Administrator Rhonda Lindeman, (collectively, hereinafter “Hamilton County” Defendants), Hamilton County Cor[546]*546oner Carl L. Parrott, Pathologist Jonathan Tobias, and Thomas Condon (Id.).

Plaintiffs are either family members whose deceased relatives were posed and photographed by Defendant Condon, or whose deceased relatives were depicted in autopsy or crime scene photographs that were found in the possession of Defendant Condon. Plaintiffs’ Motion seeks certification of the following class:

the family members and estates of all the deceased whose bodies were accessed, viewed, manipulated, or photographed by Thomas Condon, by Jonathan Tobias, or by one of their agents between August 2000 and January 2001, while such bodies were in custody of the Hamilton County Coroner’s Officer, without permission from the legal representatives of the deceased (doc. 30).

Plaintiffs further seek to designate Plaintiffs John T. Brady and Mary Smith to serve as class representatives, and their current counsel as class counsel (Id.).

The district court has broad discretion in deciding whether to certify a class. Gulf Oil Co. v. Bernard, 452 U.S. 89, 100, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). A class action may only be certified if the court is satisfied after a “rigorous analysis” that the prerequisites of Rule 23(a) have been met. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Maintainability as a class action may be determined by the pleadings, although it may be necessary for the court to probe behind the pleadings to ensure that the prerequisites of Rule 23 have been met. Id. at 160, 102 S.Ct. 2364.

The party seeking to utilize the class action device bears the burden of proof. Senter v. General Motors Corp., 532 F.2d 511, 522 (6th Cir.1976). In order for a class to be certified, all four’ prerequisites of Rule 23(a) must be met. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Once those prerequisites are met, then the party seeking certification must demonstrate that the action qualifies under at least one of the subcategories of Rule 23(b). Id. In the ease at hand, Plaintiffs posit that they have met the requirements under the subcategory of Rule 23(b)(3).

I. Requirements of Federal Rule of Civil Procedure 23(a)

In order to proceed as a class action, the party seeking certification must demonstrate that:

(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.

Fed.R.Civ.P. 23(a). As no class action may be maintained without meeting these prerequisites, an analysis of these factors is appropriate.

A. Rule 23(a)(1): Numerosity

The first requirement of Rule 23(a) is that the class be so numerous that joinder of all members would be impracticable. Fed. R.Civ.P. 23(a)(1). The plaintiff need not demonstrate that it would be impossible to join all the class members; rather, he need simply show that joinder in this case would be difficult and inconvenient. Day v. NLO, Inc., 144 F.R.D. 330, 333 (S.D.Ohio 1992); see also Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 63 (S.D.Ohio 1991) (stating “[s]atisfaction of the numerosity requirement does not require that joinder is impossible, but only that plaintiff will suffer a strong litigational hardship or inconvenience if joinder is required.”). There is no strict numerical test used to determine whether joinder is impracticable. Senter, 532 F.2d at 523. Instead, the court must examine the specific facts of each case. General Tel. Co. of Northwest, Inc. v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). In determining numerosity, the court “may consider reasonable inferences drawn from facts before him at the stage of the proceedings.” Senter, 532 F.2d at 523. This court, in Basile v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 105 F.R.D. 506 (S.D.Ohio 1985) found that as few as twenty-three class members could satisfy [547]*547the requisite numerosity. Id. at 508 (“Paraphrasing another district court’s view of the first requirement of the rule, while 23 may not be a large number when compared to other classes that have been certified, it is a large number when compared to a single unit;' there is no reason to encumber the judicial system with 23 consolidated lawsuits when one will do.”)(citing Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452 (E.D.Pa.1968)).

Plaintiffs contend that their proposed class meets the numerosity requirement because there were at least 333 bodies at the morgue between August 2000 and January 2001, which they allege Condon had access to (doc. 30). Plaintiffs, based on year 2000 Census figures, state that the average family in Hamilton County was three, and that, on average, Hamilton County residents had at least three relatives not living with them (Id.). Extrapolating these figures and applying them to the 333 bodies, Plaintiffs argue that they clearly have a class number in excess of 1,000 people (Id.).

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Bluebook (online)
215 F.R.D. 544, 2003 U.S. Dist. LEXIS 10452, 2003 WL 21436109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chesher-v-neyer-ohsd-2003.