Michael McCarthy Arthur Waskow v. Richard G. Kleindienst

741 F.2d 1406, 239 U.S. App. D.C. 247, 39 Fed. R. Serv. 2d 1165, 1984 U.S. App. LEXIS 19473

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 17, 1984
• Docket: 83-1789
• Status: Published

Opinions

STARR, Circuit Judge:

This case arises out of the 1971 “May Day” demonstrations throughout Washington, D.C. in protest against the Vietnam War. The principal, and ultimately disposi-tive, question presented by this appeal is whether the District Court abused its discretion when it refused to certify this case as a class action. For the reasons that follow, we affirm.

I

This litigation is of some considerable vintage, yet at this late date the questions before us are entirely of a threshold procedural nature. The complaint was filed by thirty-nine named plaintiffs on May 1,1972, seeking damages on behalf of themselves and at least 7,000 other individuals. The defendants were several federal officials, including then Attorney General John Mitchell and then Deputy Attorney General Richard Kleindienst, the District of Columbia, and several of its officials. The lawsuit challenged the legality of defendants’ actions taken in response to “May Day” demonstrators' well-publicized plans to close down the city of Washington on May 3, 1971. According to the complaint, defendants’ actions in responding to the “May Day” demonstrations violated the constitutional and common law rights of the named plaintiffs and putative class members.

The gravamen of the complaint was that federal and local law enforcement officials had conspired to engage in illegal tactics to combat the “May Day” demonstrations planned in protest against the Vietnam War. Complaint M 23, 24. Specifically, the complaint challenged the decision, effective early in the morning of May 3,1971, of then Police Chief Jerry Wilson, of the Metropolitan Police Department, to suspend field arrest procedures. Those procedures normally required the completion of an arrest form and the taking of a contemporaneous photograph of each arrestee. Id. H 25. Plaintiffs alleged that this suspension, of field arrest procedures led to thousands of illegal arrests throughout the city on May 3 by officers of the Metropolitan Police Department and the United States Park Police.. Id. 1127. Plaintiffs also alleged that the defendants had used, or were responsible for the use of, excessive force against putative class members. Id. ITU 28, 29. Plaintiffs further alleged that members of the putative class had been illegally detained at more than ten places of confinement throughout the city. Id. 111130, 31. The conditions of confinement obtaining at these locations were also challenged. Id. 111132-35. Finally, plaintiffs alleged that the defendants had subjected putative class members to “cumbersome processing procedures,” such as booking and fingerprinting, and to unfounded criminal prosecutions in order to penalize them for demonstrating against the Nation’s Southeast Asian policy. Id. 111136-41.

These factual allegations translated into a variety of legal causes of action: plaintiffs asserted constitutional claims under the First, Fourth, Fifth, Sixth, and Eighth amendments, in addition to common-law tort claims such as false arrest, malicious prosecution, abuse of process, and conspiracy. Id. 11111, 2. Most significantly for present purposes, the complaint contained class action allegations. Id. H1119-23. As previously indicated, the thirty-nine named plaintiffs sought to represent a class consisting of at least 7,000 individuals whose rights were allegedly violated by the federal and local defendants on May 3,1971. Id. 1120.¹ To foreshadow the pivotal events to come, we note here in passing that as the litigation comes to us, none of the original named plaintiffs and potential class representatives is still a party in this case.

The defendants filed their respective answers to plaintiffs’ complaint in August 1972. After some procedural skirmishing and the taking of limited discovery, certain of the federal defendants, namely Messrs. Mitchell, Kleindeinst and then Assistant Attorney General Will Wilson, moved for summary judgment on the ground that they were absolutely immune from damages lawsuits arising out of actions taken in their official capacities. The District Court granted summary judgment as to these defendants on July 31, 1973, and plaintiffs immediately filed a notice of appeal. On October 12, 1973, the District Court stayed all further proceedings in the case pending appellate resolution of the matter. Approximately three months later, this court issued an unpublished order dismissing the appeal for want of jurisdiction, McCarthy v. Bork, No. 73-2023 (D.C.Cir. Jan. 14, 1974), and the stay of proceedings in the District Court thereupon expired by its own terms.

While the McCarthy plaintiffs were unable to persuade this court to determine whether the federal defendants were shielded by absolute immunity, the plaintiffs in a separate “May Day” case were subsequently able to obtain such a determination in the context of an appeal from a final judgment. In Apton v. Wilson, 506 F.2d 83, 90-95 (D.C.Cir.1974), a case involving several of the federal defendants sued in McCarthy, this court rejected the argument that the federal defendants were protected by absolute immunity, holding instead that they were entitled only to qualified immunity. In light of Apton, the District Court vacated the summary judgment as to the federal defendants in the McCarthy case on July 3, 1975.

On July 25, 1975, over three years after the inception of this lawsuit, the McCarthy plaintiffs moved for certification of a class comprised of all persons arrested and detained in the District of Columbia on May 3, 1971. The District Court issued an order denying class certification on September 11, 1975. Four reasons were advanced by the District Court for its action:

(1) [Plaintiffs’ Motion for Certification of a Class was not timely filed, (2) such certification would at this late date further delay the action and necessitate further discovery, (3) this action on the merits does not lend itself to such class action certification, and (4) the particularized facts involved in each plaintiffs’ [sic] arrest and detention preclude class action treatment.

McCarthy v. Kleindienst, C.A. No. 844-72 (D.D.C. Sept. 11, 1975) (reprinted in Joint Appendix, at 133).

Upon the District Court’s denial of class certification, 266 individuals (“the Abelman intervenors”) promptly sought, but were denied, leave to intervene in the lawsuit. On appeal, this court held that the Abel-man intervenors should have been granted leave to intervene and to assert their substantive claims against defendants. McCarthy v. Kleindienst, 562 F.2d 1269, 1271-75 (D.C.Cir.1977).² The Abelman in-tervenors also requested that this court determine whether the original plaintiffs’ motion for class certification had been wrongly denied, but the court rejected this invitation on the ground that the denial of class certification was not then an appeala-ble order. Id. at 1276.

Meanwhile, the federal defendants had again moved for summary judgment in the District Court, and on May 23, 1979, the court granted this motion. In a memorandum opinion, the District Court held that the federal defendants’ actions were within the scope of their qualified immunity. In an alternative holding, the court noted that two of the federal defendants, namely Messrs. Mitchell and Wilson, were also entitled to summary judgment on the ground that plaintiffs had never properly served process upon them.

With the federal defendants out of the case as of 1979, the parties undertook settlement negotiations that ultimately proved successful, resulting in the dismissal of the “May Day” claims of all the original thirty-nine named plaintiffs and all Abelman in-tervenors. When it became clear that neither the original plaintiffs nor the Abelman intervenors could adequately protect the interests of the putative class, another group of putative class members (“the Waskow intervenors” or “appellants”) sought leave to intervene for purposes of appealing the denial of class certification. Although the District Court originally denied leave to intervene, this court subsequently reversed that denial. McCarthy v. Kleindienst, No. 81-1738 (D.C.Cir. July 26, 1982) . On June 24, 1983, the District Court on remand entered an order that allowed intervention, but simultaneously dismissed the ease. It is thus this latter group of intervenors who are maintaining the instant appeal.

II

The Waskow intervenors challenge the District Court’s decision not to certify this case as a class action. Our consideration of this challenge is appropriately undertaken only against the backdrop of a proper understanding of the respective roles of trial and appellate courts in class certification decisions.

It is, of course, well established that a principal purpose of the class-action mechanism is to advance the efficiency and economy of multi-party litigation. See, e.g., General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 2369, 72 L.Ed.2d 740 (1982) (quoting Califano v. Yamasaki, 442 U.S. 682, 701, 99 S.Ct. 2545, 2557, 61 L.Ed.2d 176 (1979)); American Pipe & Construction Co. v. Utah, 414 U.S. 538, 553, 94 S.Ct. 756, 766, 38 L.Ed.2d 713 (1974). It necessarily follows, therefore, that trial courts, charged with the orderly management of litigation, are uniquely well situated to make class certification decisions. See Burns v. United States Railroad Retirement Board, 701 F.2d 189, 191 (D.C.Cir. 1983) (court of appeals declined to make class certification decision in the first instance because the “appellate mode of proceeding is not compatible with designation and management of a class”); cf. Gulf Oil Co. v. Bernard, 452 U.S. 89, 100, 101 S.Ct. 2193, 2200, 68 L.Ed.2d 693 (1981) (“a district court has both the duty and the broad authority to exercise control over a class action”); Cloverleaf Standardbred Owners Association v. National Bank of Washington, 699 F.2d 1274, 1277 (D.C.Cir. 1983) (adopting abuse of discretion standard to govern district court dismissals pursuant to Fed.R. Civ.P. 19(b)) (“A district judge, closer to the arena, is often better suited than is an appellate panel to survey the practicalities involved in the litigation.”) (quotation omitted). While class certification decisions are manifestly too important to be insulated from appellate review, an appellate court may reverse a district court’s denial of class certification only if the denial resulted from the application of incorrect legal criteria or if it constituted an abuse of discretion. Bermudez v. United States Department of Agriculture, 490 F.2d 718, 725 (D.C.Cir.), cert, denied, 414 U.S. 1104, 94 S.Ct. 737, 38 L.Ed.2d 559 (1973); see also National Association for Mental Health, Inc. v. Cali-fano, 717 F.2d 1451, 1459 (D.C.Cir.1983); Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 479 (9th Cir.1983). This deferential standard means that an appellate court may well affirm a district court’s decision with respect to class certification vel non even though the appellate court would have ruled differently in the first instance. See Shroder v. Suburban Coastal Corp., 729 F.2d 1371 at 1374 (11th Cir.1984).

It is elementary that four prerequisites must be satisfied for a class action under Rule 23(a): “(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). In the present case, it is conceded that the numer-osity requirement is satisfied. We turn, then, to the three remaining requirements. Those interrelated prerequisites serve as “guideposts” for determining whether the respective claims are sufficiently similar that a class action will serve as an efficient litigation control device that adequately protects the interests of absent class members. Falcon, supra, 457 U.S. at 157- n. 13, 102 S.Ct. at 2371 n. 13.³ In light of the fact that this ease was brought as a damages action, however, the dispositive class certification issues are whether the common questions of law or fact “predominate over any questions affecting only individual members, and [whether] a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3).

Essentially, the District Court relied upon two considerations in concluding that the present case should not be certified as a class action. First, the court found that plaintiffs’ motion for class certification was untimely and that unwarranted further delay and massive discovery would necessarily result from certification. Second, the court found that this case was not amenable to resolution on a classwide basis in light of “the particularized facts involved in each plaintiffs' [sic] arrest and deten-tion____” We now examine these determinations under the governing standard of review, as set forth above.

Ill

A

The first rationale advanced by the District Court was that further delay would be occasioned by treatment of this case as a class action. At the time plaintiffs initially moved for class certification, this case was already over three years old and defendants still had no idea whether they were facing thirty-nine plaintiffs or at least 7,000 plaintiffs. Furthermore, although the case had been pending for over three years at the time, the case was virtually at square one with respect to proceeding to an eventual determination on the merits.

Notwithstanding these considerations, appellants argue that it was an abuse of discretion for the District Court to rely upon the untimeliness of the class certification motion as a reason for denying it. We cannot agree.

Initially, we observe that Local Rule l-13(b) of the District Court, which took effect on August 1, 1973, requires putative class plaintiffs to move for class certification within ninety days after filing their complaint. While we utterly reject the suggestion that Local Rule 1 — 13(b) directly governs a case, such as the one before us, filed before the rule’s effective date, see McCarthy v. Kleindienst, 562 F.2d 1269, 1273 n. 1 (D.C.Cir.1977), it would manifestly be within the District Court’s discretion to refer to the rule as a non-binding benchmark against which the timeliness of a class certification motion could be measured. Cf. Dudo v. Schaffer, 91 F.R.D. 128, 136 (E.D.Pa.1981) (although the local rule requiring class certification motion to be filed within 90 days of complaint was not directly applicable, the court found that plaintiffs’ IIV2 month delay violated the “spirit” of the rule), reh’g denied, 93 F.R.D. 524 (E.D.Pa.1982). Indeed, this court has noted that Local Rule l-13(b) “implements the policy” behind the already extant requirement of Fed.R. Civ.P. 23(c)(1) that class certification decisions be made “as soon as practicable.” Black Panther Party v. Smith, 661 F.2d 1243, 1279 (D.C. Cir.1981), vacated mem., 458 U.S. 1118,102 S.Ct. 3505, 73 L.Ed.2d 1381 (1982).⁴

In our view, Fed.R.Civ.P. 23(c)(1) and Local Rule l-13(b) rest upon at least two fundamental policies. The first is that defendants are entitled to ascertain at the earliest practicable moment whether they will be facing a limited number of known, identifiable plaintiffs or whether they will instead be facing a much larger mass of generally unknown plaintiffs. Fundamental fairness, as well as the orderly administration of justice requires that defendants haled into court not remain indefinitely uncertain as to the bedrock litigation fact of the number of individuals or parties to whom they may ultimately be held liable for money damages. That is particularly true where, as here, the defendants were facing either thirty-nine named plaintiffs or a class of almost two hundred times the number of the original plaintiffs. Second, these rules foster the interests of judicial efficiency, as well as the interests of the parties, by encouraging courts to proceed to the merits of a controversy as soon as practicable. That, at bottom, is a matter of simple justice. As previously described, plaintiffs’ three-year delay in moving for class certification indisputably thwarted these policies.⁵

We recognize that a party’s delay in moving for class certification has generally been analyzed with reference to the adequacy-of-representation requirement, see, e.g., East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 404-05, 97 5. Ct. 1891, 1897, 52 L.Ed.2d 453 (1977), and that the record contains no finding that the plaintiffs were unable adequately to represent the class. Nevertheless, we believe it was within the District Court’s broad discretion to rely upon the untimeliness of the class certification motion, and the unfavorable consequences caused by the delay, as grounds for denying certification. But we need not, and do not, decide whether these considerations alone were sufficient to support the District Court’s denial of certification, inasmuch as the court below also grounded its decision upon its view that plaintiffs’ claims were not suitable for resolution on a classwide basis. ■ It is to this consideration that we now turn.

B

The second rationale advanced by the District Court was that the particularized facts involved in each plaintiff’s arrest and detention precluded maintenance of a class action for damages. In order to assess this ground for the District Court’s denial, we are called upon to examine the causes of action asserted in the complaint on behalf of the putative class.⁶ We must then determine whether the District Court abused its discretion in deciding that a class action was not the best method for resolving this controversy because legal and factual questions common to the putative class did not predominate over those questions affecting only individual members.

Although the original plaintiffs asserted a number of causes of action, these causes of action have never been adequately developed; to this day, appellants are somewhat vague as to the legal foundations for their theories of liability. We will examine what appear to be the two principal causes of action asserted in the present case: false arrest and abuse of process.⁷

While the false arrest claim is asserted under both the Fourth Amendment and the common law, the requisite elements in both cases are that the plaintiff was arrested against his will and that the arrest was unlawful. Dellums v. Powell, 566 F.2d 167, 175 (D.C.Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978); Faniel v. Chesapeake & Potomac Telephone Co., 404 A.2d 147, 150 (D.C.1979) (quoting Tocker v. Great Atlantic & Pacific Tea Co., 190 A.2d 822, 824 (D.C.1963)). Unlawfulness is presumed in cases where the arrest took place without a warrant. Dellums, supra, 566 F.2d at 175-76; District of Columbia v. Gandy, 450 A.2d 896, 900 (D.C.), modified on other grounds, 458 A.2d 414 (D.C.1982), reh’g en banc denied, 466 A.2d 851 (D.C.1983). The defendant may then rebut this presumption of unlawfulness by demonstrating that probable cause existed for the arrest. Del-lums, supra, 566 F.2d at 175; Gabrou v. May Department Stores, 462 A.2d 1102, 1104 (D.C.1983) (per curiam). It is thus apparent that the liability determination in the present case is likely to turn upon highly individualized proof, inasmuch as probable cause may have existed for the arrest of some putative class members but have been lacking with respect to others.⁸

The second primary cause of action, and the one most emphasized by appellants, is for abuse of process. To prevail on this claim, appellants must demonstrate that: (1) appellees were motivated by an ulterior purpose in bringing legal proceedings against them, and (2) the proceedings resulted in “a perversion of the judicial process and achievement of some end not contemplated in the regular prosecution of the charge.” Morowitz v. Marvel, 423 A.2d 196, 198 (D.C.1980). The existence of probable cause is not a defense to an abuse of process claim. Chatterton v. Janousek, 280 F.2d 719, 721 (D.C.Cir.), cert, denied, 364 U.S. 902, 81 S.Ct. 235, 5 L.Ed.2d 195 (1960); Williams v. City Stores Co., 192 A.2d 534, 537 (D.C.1963); see also W. Prosser, Law of Torts 856 (4th ed. 1971). The essence of the tort, however, lies in the misuse of judicial proceedings. See, e.g., Foothill Industrial Bank v. Mikkelson, 623 P.2d 748, 758 (Wyo.1981); Jones v. Brockton Public Markets, Inc., 369 Mass. 387, 340 N.E.2d 484, 485-86 (1975); Barquis v. Merchants Collection Association, 7 Cal.3d 94, 101 Cal.Rptr. 745, 752, 496 P.2d 817, 824 (1972). While abuse of process claims may thus conceivably be susceptible of resolution on a classwide basis in cases where it is alleged that defendants abused the judicial process as part of a common scheme, the problem in the present case is that it is unclear how many putative class members were allegedly victimized by abuses of the judicial process.⁹

We now turn to an examination of whether the District Court clearly erred in determining that a class action was not the superior method for resolving plaintiffs’ claims. It is apparently conceded that damages may vary greatly among putative class members. Appellants argue, however, that the mere fact that damage awards will ultimately require individualized fact determinations is insufficient by itself to preclude class certification. We agree. A district court should, of course, ordinarily consider such well-established methods as bifurcating the trial into liability and damages phases before denying certification. See, e.g., Hill v. Western Electric Co., 672 F.2d 381, 387 (4th Cir.), cert, denied, 459 U.S. 981, 103 S.Ct. 318, 74 L.Ed.2d 294 (1982); Samuel v. University of Pittsburgh, 538 F.2d 991, 995-96 (3d Cir.1976); Developments in the Law— Class Actions, 89 Harv.L.R. 1318, 1491-92 (1976).

On the other hand, serious drawbacks to the maintenance of a class action are presented where initial determinations, such as the issue of liability vel non, turn upon highly individualized facts. See, e.g., Windham v. American Brands, Inc., 565 F.2d 59, 65-72 (4th Cir.1977) (en banc), cert, denied, 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978). That is precisely the situation here, where arrests were made in numerous locations in the District of Columbia and where the duration and conditions of confinement varied greatly.¹⁰ We are therefore unable to conclude that it has been clearly demonstrated, in a manner sufficient to warrant our overturning the District Court’s determination to the contrary,¹¹ that a class action was the superior method for resolving this controversy.

IV

Even apart from the class certification issue, there is an additional ground upon which we affirm the District court’s dismissal of the case with respect to the federal defendants. Appellants first sought leave to intervene in this action during the Spring of 1981 when it began to appear that impending settlements would preclude the original plaintiffs and the Abelman intervenors from adequately representing the putative class. In seeking to become parties to this action for purposes of appealing the class certification denial, appellants served copies of their intervention motion upon the District of Columbia, but not the federal, defendants. After the District Court denied them leave to intervene, appellants served their appellate briefs challenging the denial upon the District of Columbia, but not the federal, defendants. It was not until 1983, over two years after they filed their original intervention motion, that appellants expressly manifested an intent to pursue their claims against the federal defendants.

It is beyond cavil that persons seeking to intervene in an ongoing action must serve a copy of their motion to intervene upon the parties to the action. Fed.R.Civ.P. 24(c). While recognizing that procedural defects in connection with intervention motions should generally be excused by a court, see C. Wright, Law of Federal Courts 507 n. 44 (4th ed, 1983), in our view, appellants’ two-year inaction with respect to the federal defendants was sufficiently grievous to warrant dismissal of the federal defendants from the case.

We are able to envision only two explanations for appellants’ consistent failure to serve their intervention papers upon the federal defendants. The first is that appellants made a conscious decision in 1981 not to pursue their claims against the federal defendants. The second possible explanation is that appellants’ consistent failure, over a two-year period, to serve the federal defendants with intervention papers was mere oversight.

Under either hypothesis, dismissal would be warranted. For almost ten years after the actions that allegedly gave rise to their injuries, appellants slept on their individual rights. During that same time period, the defendants were forced to defend against the claims of the thirty-nine original plaintiffs and, after 1975, the 266 Abelman in-tervenors. In 1981, the defendants were finally able to envision an end to this “May Day” litigation when the District of Columbia entered into settlements with these approximately 300 individuals. While appellants were clearly entitled to intervene at that point, see United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), such a right of intervention in favor of parties who have slept on their other legal rights for ten years is extraordinary. Under these circumstances, it is not unfair to require that such interve-nors clearly and unequivocally indicate the entire universe of parties against whom intervention is sought. Every indication in the present case was that these latter-day litigants, in succeeding to the litigation responsibilities of their predecessors, no longer intended to pursue claims against the federal defendants. Thus, regardless of whether appellants’ inactions with respect to the federal defendants resulted from a conscious decision or instead resulted from oversight, the federal defendants were entitled to assume after 1981 that they would no longer have to answer in a court of law for actions taken in May 1971.

We are persuaded that it would be a manifest injustice to allow appellants now to assert their claims against the federal defendants. Accordingly, we affirm the District Court’s dismissal of the case with respect to the federal defendants on this alternative ground as well.

V

For the foregoing reasons, we affirm the District Court’s decision not to certify a class. We further hold that appellants failed properly to intervene as against the federal defendants. Accordingly, the District Court’s dismissal of the case is

Affirmed.

1 . The original plaintiffs also sought to represent a "class consist[ing] of a presently undetermined number of persons, who upon information and belief, will be subjected by defendants to violations of their Constitutional, statutory, and common law rights...." Complaint f21. Appellants do not appear to contest the District Court’s denial of certification with respect to this class and, in any event, it is problematic whether under governing law any member of this class would have standing to seek declaratory or injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 1667, 75 L.Ed.2d 675 (1983).

2 . This court held that the Abelman intervenors’ right to assert certain substantive claims against defendants could be limited if defendants were able specifically to demonstrate prejudice. That demonstration could, the court held, be made by showing that the original plaintiffs’ complaint did not provide adequate notice regarding the types of claims asserted by the intervenors. 562 F.2d at 1275. On remand, the parties hotly contested whether full intervention should be permitted, or whether defendants had made a sufficient showing of prejudice to warrant limiting the Abelman intervenors’ rights to assert certain substantive claims. By virtue of a supervening settlement, the District Court never had occasion to resolve the extent of the Abel-man intervenors’ intervention rights.

4 . In Black Panther Party, this court reversed a district court dismissal of a lawsuit based upon plaintiffs’ refusal to respond to interrogatories. 661 F.2d at 1247. Although the court thus ordered that plaintiffs’ claims be reinstated, it upheld the District Court’s denial of class certification on untimeliness grounds. Id. at 1279. The Supreme Court subsequently vacated this court’s decision, and ordered that the case be dismissed. 458 U.S. 1118, 102 S.Ct. 3505, 73 L.Ed.2d 1381. Thus, the Supreme Court’s action in vacating the case was entirely unrelated to the class certification issue.

3 . The fourth prerequisite, in addition to addressing the general considerations outlined in the text, "also raises concerns about the competency of class counsel and conflicts of interest.” Falcon, supra, 457 U.S. at 157-58 n. 13, 102 S.Ct. at 2371 n. 13.

5 . Appellants' latter-day explanations for the original plaintiffs' delay in moving for certification are woefully unconvincing. Essentially, appellants argue that it would have been wasteful for the original plaintiffs to move for certification while the propriety of the District Court’s grant of summary judgment in favor of the federal defendants was still unsettled. Appellants also attempt to support the delay by relying upon the fact that the District Court stayed all proceedings in the case pending plaintiffs’ appeal to this court from the summary judgment order. By its own terms, however, the District Court’s stay was in effect for only three of the thirty-six months of delay at issue. Furthermore, the uncertainty with respect to the grant of summary judgment involved only the federal defendants. In light of the fact that the class was going to be the same against both the federal and the District of Columbia defendants, there simply was no sound reason for awaiting the removal of this uncertainty before moving for certification. Cf. Coffin v. Secretary of Health, Education and Welfare, 400 F.Supp. 953, 956-57 & n. 19 (D.D.C.1975) (three-judge court) (plaintiff's failure to move timely for class certification was not excused by the asserted need to respond to defendant's motions to dismiss the case, to transfer the case, and to dissolve the three-judge court), appeal dismissed, 430 U.S. 924, 97 S.Ct. 1539, 51 L.Ed.2d 789 (1977); Black Panther Party, supra, 661 F.2d at 1279 (citing Coffin with approval on this point).

6 . Appellants seem to argue that a court may not decide, in the context of a class certification determination, what plaintiffs must demonstrate in order to prevail on their legal theories of liability. Brief for Appellants, at 21 (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974)). The pertinent aspect of the Eisen holding is that courts lack the authority to conduct a fact-based preliminary hearing regarding the merits of the lawsuit at- the class certification stage. Nothing in Eisen precludes a court from scrutinizing plaintiffs’ legal causes of action to determine whether they are suitable for resolution on a classwide basis. To the contrary, such scrutiny is ordinarily an essential ingredient of the determination whether to allow a case to proceed as a class action. See, e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 & n. 12, 98 S.Ct. 2454, 2458 & n. 12, 57 L.Ed.2d 351 (1978); Moore v. Hughes Helicopters, Inc., supra, 708 F.2d at 480; Doctor v. Seaboard Coast Line R.R., 540 F.2d 699, 707 (4th Cir.1976).

7 . The complaint also contained broad conspiracy allegations against appellees. These conspiracy allegations, however, do not set forth an independent cause of action; instead, such allegations are sustainable only after an underlying tort claim has been established. See Halberstam v. Welch, 705 F.2d 472, 479 (D.C.Cir.1983) ("Since liability for civil conspiracy depends on performance of some underlying tortious act, the conspiracy is not independently actionable; rather, it is a means for establishing vicarious liability for the underlying tort."). In the context of the present case, for example, individuals alleging false arrest must prove that they were unlawfully arrested in order for their conspiracy claims to become cognizable. We therefore do not understand the dissent’s suggestion, see Dissenting Opinion at 1421, that our reasoning would favor resolution of the conspiracy allegations on a classwide basis while at the same time disfavor classwide resolution of the false arrest claims. Contrary to the dissent’s approach, the conspiracy allegations cannot be viewed separately from the underlying tort claims in the present case. If the District Court did not abuse its discretion in deciding against classwide resolution of the underlying tort claims, the fact that the complaint also contained conspiracy allegations is not an independent basis for reversal.

8 . Appellants’ arguments against this proposition are unconvincing. First, appellants argue that some of the District of Columbia appellees may be collaterally estopped from attempting to establish probable cause as a defense by reason of the decision against them in Sullivan v. Murphy, 380 F.Supp. 867 (D.D.C.1974) (on remand from 478 F.2d 938 (D.C.Cir.), cert, denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973)). In Sullivan, this court held that certain arrests, including those made on May 3, 1971, were presumptively invalid subject to a demonstration of validity on remand. On remand, the District of Columbia defendants were unable to demonstrate probable cause, and the arrests were accordingly declared invalid. Contrary to appellants’ arguments here, however, Sullivan should not be read to preclude the District of Columbia appellees from attempting to justify the arrests. Sullivan was a suit limited solely to equitable relief (i.e., expungement of arrest records); the stakes in the present case are much different given the claims for money damages. The greater incentive to litigate in this case militates strongly against giving Sullivan preclusive effect. See, e.g., Otherson v. Department of Justice, I.N.S., 711 F.2d 267, 275-76 (D.C.Cir.1983).

Appellants’ second argument is that the Sullivan remand at least indicates that appellees’ contention that probable cause may be established as a defense in individual cases is plausible in theory but not in accord with the actual circumstances here. This argument, however, ignores the fact that appellees may be able to conduct discovery that would help establish their defenses. More importantly, a finding that appellees would be unable ultimately to establish facts sufficient to support their defenses would be impermissible at this stage of the proceedings. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974) (court may not ‘‘conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action"). Courts have properly recognized that Eisen does not preclude consideration of matters beyond the pleadings to determine whether a claim or defense, assuming its merit, is susceptible of resolution on a class-wide basis. See, e.g., Sirota v. Solitron Devices, Inc., 673 F.2d 566, 570-72 (2d Cir.), cert, denied, 459 U.S. 838, 103 S.Ct. 86, 74 L.Ed.2d 80 and 459 U.S. 908, 103 S.Ct. 213, 74 L.Ed.2d 170 (1982); Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 895 (7th Cir. 1981), cert, denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982); Doctor v. Seaboard Coast Line R.R., 540 F.2d 699, 707-09 (4th Cir. 1976). We strongly disagree, however, with our dissenting colleague’s suggestion, Dissenting Opinion at 9, that the District Court could have concluded, consonant with Eisen, that "probable cause could [not] be demonstrated for a significant number of the 8000 arrests at issue." Whether probable cause existed for individual arrests would likely be the central issue in the liability phase of any trial of this case; it would not have been proper for the District Court to conclude in the context of its class certification determination that the probable cause defense lacked merit.

9 . For example, while it appears that many putative class members were alleged victims of unlawful arrests and detentions, warrantless arrests and detentions effectuated entirely independent of the judicial process could not support an abuse of process tort claim. The original plaintiffs never demonstrated, and to this date appellants are unable to demonstrate, how many putative class members actually had judicial process invoked against them.

The dissent argues that our approach with respect to the abuse of process claim "drastically alters the burden of proof for class certification questions." Dissenting Opinion at 1421. This criticism is somewhat difficult to fathom inasmuch as it is the party seeking class certification that bears the burden of establishing the class action requirements. Eggleston v. Chicago Journeymen Plumbers’ Local Union No. 103, 657 F.2d 890, 895 (7th Cir.1981), cert, denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982); Doctor v. Seaboard Coast Line R.R., 540 F.2d 699, 706-07 (4th Cir. 1976); see generally 3B J. Moore & J. Kennedy, Moore’s Federal Practice jf 23.02-2, at 23-96 (2d ed. 1982). The dissent’s recommendation that subclasses be employed as to this issue would be deserving of serious consideration had it been suggested to the District Court; it was not. Our opinion manifestly should not be read as precluding creative uses of Rule 23 by district judges attempting fairly and efficiently to resolve complex litigation. We do not believe, however, that an appellate court, thirteen years after the inception of litigation, should be in the business of creating classes and subclasses never suggested by the parties seeking certification.

The complaint also contained a claim that the activities complained of were taken in order to penalize putative class members for the exercise of their First Amendment right to demonstrate. Such a claim, while somewhat akin to the com-monlaw abuse of process claim in that plaintiffs must establish that defendants had an impermissible purpose behind seemingly legitimate actions, is broader than the common-law claim in one respect, because it would conceivably extend beyond actions implicating the judicial process. On the other hand, the First Amendment claim would at the same time be narrower than the common-law claim, inasmuch as defendants would conceivably be able to avoid liability by demonstrating that they would have taken the challenged actions even absent the impermissible purpose. Cf. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977) (defendant may rebut prima facie case that otherwise legitimate action was taken to penalize plaintiff for exercise of First Amendment right by demonstrating that it would have taken the same action even absent the impermissible consideration). The possible existence of this individualized defense militates against resolution of this cause of action on a classwide basis.

10 . Appellants’ reliance upon the abuse of process claim in support of their argument that the District Court erred in not certifying a class is extremely unconvincing. See supra note 9 and accompanying text. We would not be justified in reversing the District Court simply because one of the many causes of action asserted in the complaint could conceivably present common questions as to an undefined sub-group within the overall putative class.

11 . The need to defer to a district court’s class certification decision has been greatly emphasized throughout this opinion. It is this factor that makes our decision in the present case entirely consistent with both Dellums v. Powell, 566 F.2d 167 (D.C.Cir.1977), cert, denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978) and Sullivan v. Murphy, 478 F.2d 938 (D.C.Cir.), cert, denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973), previous "May Day” cases in which this court upheld district court decisions to certify a class. While there are other important distinctions between those cases and the present one (e.g., the class in Dellums consisted only of those persons arrested on the steps of the U.S. Capitol, a much more cohesive group than the approximately 7,000 putative class members here who were arrested throughout the city; Sullivan was brought as a "(b)(2)” class action involving equitable relief only rather than as a “(b)(3)” damages class action), we view the most significant distinction as the fact that in neither Dellums nor Sullivan was the court required to uphold a class by reversing a district court’s determination. We are by no means holding today that it would have been error to certify a class in this case, and that question is obviously not before us. Instead, we are simply holding that the District Court did not abuse its ample discretion in declining to certify a class under the circumstances present here.