Doe v. Southern Gyms, LLC

112 So. 3d 822, 2013 WL 1131001, 2013 La. LEXIS 576
CourtSupreme Court of Louisiana
DecidedMarch 19, 2013
DocketNos. 2012-C-1566, 2012-C-1572, 2012-C-1580
StatusPublished
Cited by18 cases

This text of 112 So. 3d 822 (Doe v. Southern Gyms, LLC) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe v. Southern Gyms, LLC, 112 So. 3d 822, 2013 WL 1131001, 2013 La. LEXIS 576 (La. 2013).

Opinion

CLARK, Justice.1

hWe granted certiorari in these three consolidated writ applications to determine whether the lower courts correctly applied [825]*825the standards for analyzing class action certification set forth in La. C.C.P. art. 591, et seq. After reviewing the record and the applicable law, we find the lower courts erred in concluding the plaintiff satisfied the threshold requirement of numer-osity, necessary for class certification. Accordingly, we reverse the judgment of the district court which granted plaintiffs motion for class certification.

FACTS AND PROCEDURAL HISTORY

Sometime in April of 2010, the plaintiff in this matter, Jane Doe,2 was contacted by detectives in the Baton Rouge Police Department and asked to identify whether she was the subject of a photograph, obtained from a video, captured by a pen camera which had been surreptitiously placed in the women’s 12shower/changing room of a fitness center in downtown Baton Rouge, Louisiana.3 The plaintiff was a member of a gym called “Anytime Fitness,” a fitness center owned by Southern Gyms, LLC (“Southern Gyms”). Southern Gyms purchased a franchise for the fitness center from an out-of-state corporation known as Anytime Fitness, Inc.4 The plaintiff identified herself for police as the woman in the photograph.

Further investigation by police revealed that an assistant manager and trainer at the fitness center, Terry Telschow (“Tel-schow”), secretly videotaped the plaintiff and other women in the women’s shower/changing room of the gym. The police told the plaintiff her image was one of four women discovered on the pen camera when the pen camera was turned over to police on April 5, 2010. Telschow was arrested on April 23, 2010, and was prosecuted for video voyeurism. He ultimately pleaded guilty to four counts of video voyeurism — one count for each of the four women whose images were found on the pen camera — and was sentenced to a nine month term of imprisonment.

On June 25, 2010, plaintiff filed a pleading entitled “Class Action Petition for Damages” in Evangeline Parish on behalf of herself and others similarly situated.5 [826]*826Made defendants in the action were Tel-schow; Southern Gyms; Anytime | ¡jFitness; and Southern Gyms’ insurer, later identified as Lexington Insurance Company. The plaintiff alleged causes of action in negligence against Southern Gyms, Anytime Fitness, and its employees for failing to properly supervise its employees and in failing or neglecting to protect its patrons from the criminal acts of others. In addition, the plaintiff directed allegations of invasion of privacy and intentional infliction of emotional distress toward Telschow, individually.

A hearing on the motion for class certification was held on August 5, 2011. Tel-schow’s deposition was admitted into evidence without objection. In his deposition, Telschow stated he placed the pen camera in the women’s shower/changing room at the gym on 10-15 days between mid-November of 2009 until the pen camera was discovered on April 5, 2010. On each of these days, the pen camera would record from 1-2 hours. There were many days he would fail to obtain any images, since the camera angle would be wrong. However, in addition to the images of the four women found on the pen camera by police on April 5, 2010, Telschow admitted he had videotaped at least five other women in various stages of undress, and about 20 women doing non-intimate things like washing their hands or face, or combing their hair. Telschow stated he erased the video images after he viewed them; thus, the only videotapes which remained on the pen camera were of the four women found by police, which Telschow never saw. Tel-schow denied ever downloading the images of women videotaped to his computer or sending them to others.

The plaintiff testified in person at the hearing, describing how she found out from the police that she had been surreptitiously videotaped. The plaintiff explained her willingness to be class representative in the proceeding and her general knowledge about the suit. She introduced into evidence a “Club Usage Report,” which showed all of the members (men and women) who used the gym ^between November 2, 2009 and February 8, 2010, based on the key swipe system for entrance into the fitness center.6

The parties’ memoranda, including exhibits, were also admitted in evidence. One of the exhibits to a defense memorandum was a copy of the bill of information charging Telschow with four counts of video voyeurism.7 The defendants also introduced copies of two separate lawsuits filed in East Baton Rouge Parish against them by two other women who were videotaped by Telschow on April 5, 2010. At the conclusion of the hearing, the district judge took the question of class certification under advisement and requested post-hearing briefs.

The hearing on the motion for class certification was again heard on August 24, 2011, in connection with the defendants’ motion to transfer for forum non conve-niens. Although the district judge expressed doubt as to the correctness of proceeding with the case as a class action due to the speculative nature of the plaintiffs evidence of other aggrieved parties, he decided to err on the side of caution and certify the class. In a judgment on the motion for class certification signed on [827]*827September 21, 2011, the district judge defined the class as:

All females who physically entered the women’s restroom/locker room/changing room at Anytime Fitness, 200 Government Street, Baton Rouge, Louisiana 70802, from November 1, 2009, through and including April 5, 2010.

Defendants appealed the ruling to the court of appeal, arguing the plaintiff failed to bear her burden of proving that class certification, under La. C.C.P. art. 591 et seq., was the proper procedural vehicle for maintaining this action. The main focus of the defendants’ argument was their assertion the plaintiff failed to prove the threshold requirement of showing the class was so numerous as to make joinder impractical.

IsThe court of appeal disagreed with the defendants’ assertions and affirmed the district court’s ruling.8 The appellate court noted Anytime Fitness, the franchisor, was “a nationwide business entity which allows its members to use any location, nationwide;” therefore, the appellate court believed “there is potential for aggrieved parties to be located not only in Louisiana, but other states as well and, certainly, from areas outside of Baton Rouge, Louisiana.”9 As to the threshold requirement of numerosity, the court of appeal stated:

The number of women provided by Doe and the various potential locations of aggrieved parties provide a basis for the trial court to find that the lack of a class action could unduly burden the courts and joinder of all interested parties is impractical. Given the above and our directive of erring on the side of maintaining the class action because the judge may always modify or amend the class at any time prior to a decision on the merits, we find no abuse of discretion by the trial court in ruling that Doe has met the numerosity requirement.10

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Bluebook (online)
112 So. 3d 822, 2013 WL 1131001, 2013 La. LEXIS 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-southern-gyms-llc-la-2013.