Doe v. Karadzic

192 F.R.D. 133, 2000 U.S. Dist. LEXIS 3845, 2000 WL 322774
CourtDistrict Court, S.D. New York
DecidedMarch 27, 2000
DocketNo. 93 Civ. 0878 PKL
StatusPublished
Cited by20 cases

This text of 192 F.R.D. 133 (Doe v. Karadzic) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe v. Karadzic, 192 F.R.D. 133, 2000 U.S. Dist. LEXIS 3845, 2000 WL 322774 (S.D.N.Y. 2000).

Opinion

OPINION AND ORDER

LEISURE, District Judge.

Plaintiffs in this class action seek compensatory and punitive damages for acts of genocide, including murder, rape, torture, and other torts, allegedly committed in Bosnia-Herzegovina by individuals under the command and control of defendant Radovan Karadzic. Following class certification, plaintiffs Jane Doe I et al. (the “Doe plaintiffs”) moved the Court for approval of their proposed class notice plan. Thereafter, plaintiffs S. Kadic et al. (the “Kadic plaintiffs”) sought decertification of the plaintiff class or, alternatively, certification of one or more subclasses. For the following reasons, the motion to decertify is granted, and the mo-' tion to approve class notice is denied as moot.

BACKGROUND

The litigation was originally before this Court as two separate but related actions, Kadic v. Karadzic, No. 93 Civ. 1163, and Doe v. Karadzic, No. 93 Civ. 0878. The factual background of these two cases has been explained at length in numerous previous opinions,1 and thus the Court presumes general familiarity with the facts set forth therein.

By Opinion and Order dated December 2, 1997, the Court granted the Doe plaintiffs’ motion to certify the case as a limited fund class action, pursuant to Federal Rule of Civil Procedure 23(b)(1)(B). At the time, the Kadic plaintiffs did not oppose certification. As per the December 2,1997 Order, the class consists of “all people who suffered injury as a result of rape, genocide, summary execution, arbitrary detention, disappearance, torture or other cruel, inhuman or degrading treatment inflicted by Bosnian-Serb Forces under the command and control of defendant between April 1992 and the present.”2 Doe, 176 F.R.D. at 461.

Following the certification order, however, the Kadic plaintiffs began a full-fledged campaign to withdraw from the mandatory class. On October 23, 1998, the Court denied their motion to opt out of the class. See Doe, 182 F.R.D. at 430. Thereafter, on January 7, 1999, the Court refused the Kadic plaintiffs’ request, for reconsideration of its previous ruling, see Doe, 1999 WL 6360, at *3, and declined to certify the issue for an interlocutory appeal, see id. at *4.

Despite these efforts, the litigation continued to move forward. On February 16,1999, the Doe plaintiffs sought an order approving their proposed notice plan, pursuant to Fed. R.Civ.P. 23(d)(2). See Doe Pl. Mem. at 3-6. However, on March 19,1999, the Kadic plaintiffs moved for decertification of the plaintiff class, pursuant to Fed.R.Civ.P. 23(c)(1), on the ground that the class no longer satisfied the basic requirements of Rule 23. See Kadic Pl. Mem. at 16-37. Alternatively, they requested certification of one or more subclasses, pursuant to Fed.R.Civ.P. 23(c)(4)(B). See Kadic Pl. Mem. at 38-42.3

While the two motions were pending before this Court, on June 23, 1999, the United [136]*136States Supreme Court issued its decision in Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999). The opinion set off a flurry of letters from counsel to the Court, replete with various enclosures, enlightening the Court as to the ruling’s effect on the pending decertification motion.4 Because Justice Souter’s well-reasoned opinion in Ortiz provides the Court with a new starting point for determining the appropriateness of class certification on a Rule 23(b)(1)(B) limited fund rationale, this Court must again “engage in a ‘rigorous analysis’ of whether the conditions for maintaining a class action have been satisfied.” Koppel v. 4987 Corp., 191 F.R.D. 360, 364-65 (S.D.N.Y. 2000) (quoting Non-Traditional Employment for Women v. Tishman Realty & Constr. Co., No. 88 Civ. 4620, 1989 WL 101940, at *1 (S.D.N.Y. Aug. 30, 1989) (quoting General Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982))).5

DISCUSSION

I. Standard of Review for a Motion for Decertification

Under Fed.R.Civ.P. 23(c)(1), a class certification order is “conditional, and may be altered or amended before the decisions on the merits.” Consequently, courts are “ ‘required to reassess their class rulings as the case develops.’ ” Boucher v. Syracuse Univ., 164 F.3d 113, 118 (2d Cir.1999) (quoting Barnes v. American Tobacco Co., 161 F.3d 127, 140 (3d Cir.1998)); see also In re Agent Orange Product Liab. Litig., 818 F.2d 145, 163 (2d Cir.1987) (“The court may reconsider [its decision to certify a class], by decertifying, modifying the definition of the class, or creating subclasses in the light of future developments in the case.”); Woe v. Cuomo, 729 F.2d 96, 107 (2d Cir.1984) (“It is often proper ... for a district court to view a class action liberally in the early stages of litigation, since the class can always be modified or subdivided as issues are refined for trial.”); Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir.1983) (“The district judge must define, redefine, subclass, and decertify as appropriate in response to the progression of the case from assertion to facts.”). In particular, prior to the point at which notice is sent to members of the class, a certification order “is inherently tentative.” Falcon, 457 U.S. at 160, 102 S.Ct. 2364.

Specifically, the Second Circuit has held that a “district court may decertify a class if it appears that the requirements of Rule 23 are not in fact met.” Sirota v. Solitron Devices, Inc., 673 F.2d 566, 572 (2d Cir.1982); see also Monaco v. Stone, 187 F.R.D. 50, 59 (E.D.N.Y.1999) (“A class may be decertified if later events demonstrate that the reasons for granting class certification no longer exist or never existed.”); In re Prudential Securities Inc. Ltd. Partnerships Litig., 158 F.R.D. 301, 304-05 (S.D.N.Y.1994) (decertifying class sua sponte). Although at least one district court has concluded that the burden of persuasion remains throughout the litigation with the party desiring to maintain certification, see Smith v. Armstrong, 968 F.Supp. 50, 53 (D.Conn.1997), the Court may not disturb its prior findings absent “some significant intervening event,” Langley v. Coughlin, 715 F.Supp. 522, 553 [137]*137(S.D.N.Y.1989), appeal dismissed,

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Bluebook (online)
192 F.R.D. 133, 2000 U.S. Dist. LEXIS 3845, 2000 WL 322774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-karadzic-nysd-2000.