Ouellette v. International Paper Co.

86 F.R.D. 476, 29 Fed. R. Serv. 2d 789, 1980 U.S. Dist. LEXIS 10930
CourtDistrict Court, D. Vermont
DecidedApril 24, 1980
DocketCiv. A. No. 78-163
StatusPublished
Cited by29 cases

This text of 86 F.R.D. 476 (Ouellette v. International Paper Co.) is published on Counsel Stack Legal Research, covering District Court, D. Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ouellette v. International Paper Co., 86 F.R.D. 476, 29 Fed. R. Serv. 2d 789, 1980 U.S. Dist. LEXIS 10930 (D. Vt. 1980).

Opinion

OPINION AND ORDER

COFFRIN, District Judge.

In this diversity action for damages and injunctive relief, plaintiffs have moved for certification of two plaintiff classes pursuant to Fed.R.Civ.P. 23. The Complaint is styled in two “causes of action” and different classes are proposed for each. Defendant opposes certification of both proposed classes.

Facts

This action began on July 5, 1978, in Vermont’s Addison County Superior Court and defendant properly removed it to this court on July 25, 1978. Following removal several of the presently named plaintiffs were permitted to intervene. This case is the latest expression of some Vermonters’ unhappiness with the condition of Lake Champlain’s waters. It represents a continuation of both private, e. g., Zahn v. International Paper Co., 53 F.R.D. 430 (D.Vt. 1971), aff’d, 469 F.2d 1033 (2d Cir. 1972), aff’d, 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), and public efforts to impose liability on International Paper Company (IPC) for its discharges into Lake Champlain. Vermont v. New York, 406 U.S. 186, 92 S.Ct. 1603, 31 L.Ed.2d 785 (1972) (motion for leave to file bill of complaint granted), dismissed, 419 U.S. 955, 95 S.Ct. 246, 42 L.Ed.2d 260 (1974); see Note, The Battle of Lake Champlain — Interstate Pollution and the Inadequacy of the Judicial Process: Vermont v. New York, 1 Vt.L.Rev. 175 (1976).

Plaintiffs are Vermont residents who own property on or near the “south lake” area of Lake Champlain in the vicinity of the Crown Point Bridge; defendant is a New York corporation with its principal place of business in New York. It operates a paper mill near Ticonderoga, New York, across the south lake from plaintiffs’ property. Jurisdiction is grounded on 28 U.S.C. § 1332(a).

Plaintiffs request certification of two classes which we will refer to as the “water class” and the “air class.” The water class would consist of approximately 400 lake-shore property owners and lessees in the towns of Shoreham, Bridport and Addison. Plaintiffs claim on behalf of this class that IPC’s discharge of papermaking waste into Lake Champlain constitutes a nuisance that diminishes the value and interferes with the enjoyment of their property.

[479]*479The air class would consist of approximately 3150 property owners, lessees and residents in Shoreham, Bridport, Addison and Orwell. On behalf of this class plaintiffs claim that the airborne discharges from defendant’s paper mill travel across Lake Champlain and create a nuisance in the designated towns. In addition to diminished property value, plaintiffs claim this class has suffered impaired health as a result of defendant’s alleged air pollution.1

On behalf of both proposed classes plaintiffs seek monetary damages and equitable relief ordering IPC to relocate the source of its water intake system closer to the source of its waste discharge system.

Discussion

To maintain this as a class action, plaintiffs must satisfy the four prerequisites of Fed.R.Civ.P. 23(a) and the two elements of the rule 23(b)(3) form of action they propose. We consider these separately below.

1. Prerequisites

We have no difficulty finding that the proposed classes are sufficiently numerous that joinder is impracticable, Fed.R. Civ.P. 23(a)(1), and that there are questions of law or fact common to the classes. Id. (a)(2). Although numbers alone do not determine impracticability of joinder, see, e. g., EWH v. Monarch Wine Co., 73 F.R.D. 131, 133 (E.D.N.Y.1977), and geographical distribution of a proposed class is of considerable importance, Glover v. McMurray, 361 F.Supp. 235, 241 (S.D.N.Y.), rev’d and remanded on other grounds, 487 F.2d 403 (2d Cir. 1973), vacated and remanded on other grounds, 417 U.S. 963, 94 S.Ct. 3166, 41 L.Ed.2d 1136 (1974), we are nevertheless persuaded by the numbers involved in the proposed classes. Defendant does not dispute plaintiffs’ approximations of size — determined on the basis of information obtained from the respective Towns’ Clerks and population reports in the Vermont Year Book — and we have found such numbers to be convincing in the past. D. C. v. Surles, No. 78-91 (D.Vt. December 6, 1978).

Similarly we are satisfied that there are questions of law and fact common to the classes. Plaintiffs seek redress for injuries allegedly caused by continuing acts of defendant. Central to the claims of all members of the proposed classes are the fact questions of the quality, amount and distribution of defendant’s discharges and the legal questions of defendant’s liability therefor. In addition, defendant may have defenses that would be common to the claims of all the class members. These questions are “shared in the grievances of the prospective class[es] as defined,” 3B Moore’s Federal Practice ¶ 23.06-1, at 23-173 (2d ed. 1979), and we conclude that the requirement of rule 23(a)(2) is also met in this case. Although in its argument concerning rule 23(b)(3) defendant opposes certification on the basis of rules 23(a)(1) and (2) its primary contention is that rules 23(a)(3) and (4) are not satisfied.

Rule 23(a)(3) requires that the proposed representative’s claims be typical of the claims of the proposed class.

At least one commentator doubts that rule 23(a)(3) imposes a requirement of independent significance, 3B Moore’s Federal Practice ¶ 23.06 — 2, at 23-185 (2d ed. 1979), but we are more inclined to agree with Judge Muir that we should not lightly conclude that a meaningless provision was promulgated. In re Anthracite Coal Antitrust Litigation, 78 F.R.D. 709, 716 (M.D.Pa. 1978); see, e. g., Taylor v. Safeway Stores, Inc., 524 F.2d 263, 269-70 (10th Cir. 1975) (rule 23(a)(3) requires comparison of plaintiff's claims with those of proposed class). We are satisfied, however, that a comparison of the named plaintiffs’ claims with those of the proposed classes need not reveal identity to be “typical.” “Factual variations are not fatal to a proposed class when the claims arise out of the same remedial and legal theory.” Wofford v. Safeway [480]*480Stores, Inc., 78 F.R.D. 460, 488 (N.D.Cal. 1978). To be “typical,” plaintiffs’ claims must be “co-extensive with, and not inimical to, those of the proposed class,” Levine v. Berg, 79 F.R.D. 95, 97 (S.D.N.Y.1978), and they must not be subject to unique defenses that are inapplicable to other members of the proposed class. Greenspan v. Brassier, 78 F.R.D. 130, 132 (S.D.N.Y. 1978).

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Bluebook (online)
86 F.R.D. 476, 29 Fed. R. Serv. 2d 789, 1980 U.S. Dist. LEXIS 10930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ouellette-v-international-paper-co-vtd-1980.