Independent School District 89 v. Bolain Equipment, Inc.

90 F.R.D. 245, 32 Fed. R. Serv. 2d 150, 1980 U.S. Dist. LEXIS 16704
CourtDistrict Court, W.D. Oklahoma
DecidedFebruary 19, 1980
DocketNo. CIV-78-0173-D
StatusPublished
Cited by3 cases

This text of 90 F.R.D. 245 (Independent School District 89 v. Bolain Equipment, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Independent School District 89 v. Bolain Equipment, Inc., 90 F.R.D. 245, 32 Fed. R. Serv. 2d 150, 1980 U.S. Dist. LEXIS 16704 (W.D. Okla. 1980).

Opinion

ORDER

DAUGHERTY, Chief Judge.

This is a private antitrust action brought under § 4 of the Clayton Act, 15 U.S.C. § 15, by Plaintiff Independent School District No. 89 of Oklahoma County, Oklahoma, against six manufacturers of school bus bodies and six corresponding in-state distributors of those bus bodies as a class action on behalf of all school districts within the state of Oklahoma which have purchased school bus bodies from the Defendants. In its Amended Complaint Plaintiff alleges that the Defendants have conspired to fix and maintain prices for the sale of school buses in violation of § 1 of the Sherman Act, 15 U.S.C. § 1, to restrain interstate trade and commerce and to create a monopoly and to lessen competition in violation of § 2 of the Sherman Act, 15 U.S.C. § 2, and to fix the prices of school buses at artificially high levels contrary to 79 Okla. Stat.1971 §§ 1 qnd 3. It is asserted that the Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1337.

Plaintiff has filed herein a Motion to Certify as Class Action under Rule 23, Federal Rules of Civil Procedure. Said Motion is supported by a Brief. Defendants have filed several Briefs in opposition to Plaintiff’s Motion, and Plaintiff has replied [247]*247thereto. An evidentiary hearing was held in connection with the instant Motion on December 20, 1979. See Rossin v. Southern Union Gas Co., 472 F.2d 707, 711-712 (Tenth Cir. 1973).

Upon examination of Plaintiff’s pleadings, including the instant Motion and related Briefs, and from the evidence presented at the hearing conducted on said Motion, the Court is persuaded that Plaintiff has established the existence of a “class,” an essential prerequisite of an action under Rule 23, supra. 7 Wright and Miller, Federal Practice and Procedure: Civil § 1760, at 579 (1972). In this connection, Plaintiff defined the alleged class at the evidentiary hearing herein as all school districts within Oklahoma which have purchased school buses from the Defendants within the four years preceding the filing of this action. However, even if a class exists in a particular case, a class action may be maintained only if all four prerequisites of Rule 23(a) and at least one of the prerequisites of Rule 23(b) are satisfied. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 163, 94 S.Ct. 2140, 2145, 40 L.Ed.2d 732 (1974); Monarch Asphalt Sales Co. v. Wilshire Oil Co. of Texas, 511 F.2d 1073, 1077 (Tenth Cir. 1975); Stoner v. Ford, 390 F.Supp. 327, 328 (N.D.Okla.1974). The party seeking class action certification has the burden of showing that all the requirements of Rule 23 have been clearly met. Rex v. Owens ex rel. State of Oklahoma, 585 F.2d 432, 435 (Tenth Cir. 1978); Rossin v. Southern Union Gas Co., supra, 472 F.2d at 712; Stoner v. Ford, supra; 7 Wright and Miller, supra, at § 1759.

The first requirement that Plaintiff must satisfy is that the class be “so numerous that joinder of all members is impracticable.” Rule 23(a)(1), Federal Rules of Civil Procedure; Peterson v. Oklahoma City Housing Authority, 545 F.2d 1270, 1273 (Tenth Cir. 1976); Williams v. Wohlgemuth, 366 F.Supp. 541, 544 (W.D.Pa.1973), aff’d mem., 416 U.S. 901, 94 S.Ct. 1604, 40 L.Ed.2d 106 (1974); Tuma v. American Can Co., 367 F.Supp. 1178, 1188 (D.N.J.1973). In this regard, the number of class members is relevant, but the language of the rule as construed emphasizes that this criterion is not a “numerousness test,” but rather a determination of impracticability of joinder. 4 Newberg Class Actions § 7512, at 9 (1977). The determination of practicability depends on all the circumstances surrounding the case, Rex v. Owens ex rel. State of Oklahoma, supra, 585 F.2d at 436; Stoner v. Ford, supra; Goldblum v. Boyd, 60 F.R.D. 421, 426 (W.D.La.1973), including the magnitude of claims and the degree of dispersion of the prospective plaintiffs. Harriss v. Pan American World Airways, Inc., 74 F.R.D. 24, 45 (N.D.Cal.1977). Although the mere number in a class is not controlling on the issue of impracticability of joinder, it is most significant and a sine qua non to be considered. Goldblum v. Boyd, supra.

In the instant case, Plaintiff alleges that there are six hundred school districts in Oklahoma, all of which are potential class members. A closer look at this allegation reveals, however, that the same is merely a list of all the school districts in Oklahoma. Plaintiff has presented no evidence as to how many, if any, of the six hundred school districts purchased school bus bodies from the Defendants. Clearly, most if not all of these school districts would use some school buses. This fact does not help in the determination of how many such districts purchased school bus bodies from the Defendants as it appears that school bus bodies may be purchased new in Oklahoma from the named Defendants only, or leased or purchased from other sources. Furthermore, it was revealed at the evidentiary hearing that Plaintiff sent a letter to each of the six hundred school districts soliciting their participation in the instant action and requesting funds from each district to offset the expense of the instant litigation. Further solicitation of funds by Plaintiff was forbidden by Order of this Court on September 30, 1978. Only fifty-one of the six hundred school districts responded to Plaintiff’s letter, and only forty-one of the responding districts expresséd any interest in participating in the present action. [248]*248Thus, the evidence before this Court concerning the number of class members is that only forty-one of the six hundred districts have even a minimal interest in participating in the instant action. Additionally, there is an absence of evidence that the forty-one responding districts made any purchases from the named Defendants, thereby making said districts proper class members. Plaintiff has made no showing that joinder of the forty-one apparent class members would be impracticable. Where there is no showing by Plaintiff as to the size of the alleged class or that the number of the alleged class is so large that intervention or joinder is impracticable, class certification should be denied. See Rex v. Owens ex rel. State of Oklahoma, supra; Demarco v. Edens, 390 F.2d 836, 845 (Second Cir. 1968); Williams v. Wohlgemuth, supra; Tuma v. American Can Co., supra; William Goldman Theatres, Inc. v. Paramount Film Distributing Corp., 49 F.R.D. 35, 39 (E.D.Pa.1969);

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90 F.R.D. 245, 32 Fed. R. Serv. 2d 150, 1980 U.S. Dist. LEXIS 16704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/independent-school-district-89-v-bolain-equipment-inc-okwd-1980.