Pope v. City of Clearwater

138 F.R.D. 141, 1991 U.S. Dist. LEXIS 9833, 1991 WL 133131
CourtDistrict Court, M.D. Florida
DecidedJuly 12, 1991
DocketNo. 90-1062-CIY-T-17A
StatusPublished
Cited by6 cases

This text of 138 F.R.D. 141 (Pope v. City of Clearwater) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pope v. City of Clearwater, 138 F.R.D. 141, 1991 U.S. Dist. LEXIS 9833, 1991 WL 133131 (M.D. Fla. 1991).

Opinion

ORDER ON MOTION TO CERTIFY CLASS ACTION

KOVACHEVICH, District Judge.

This cause is before the Court on Plaintiff’s motion to certify a class action, and the' Court having reviewed Plaintiff’s brief supporting class certification, and Defendant’s brief in opposition to Plaintiff’s motion to certify class action, as well as other memoranda filed by the parties, reserves ruling on the motion to certify the first and second proposed classes of plaintiffs pending the replacement of current counsel with acceptable counsel. The Court denies certification of the third class of plaintiffs and the proposed class of defendants pursuant to Rule 23(b) of the Federal Rules of Civil Procedure.

The following facts are assumed for purposes of the motion to certify a class action. Plaintiff made an application to Defendant for water service in July of 1990 and was informed that he would have to pay a fifteen (15) dollar nonrefundable service charge and a three hundred and thirty (330) dollar security deposit pursuant to City of Clearwater Ordinance to have his service turned on. Plaintiff’s required deposit was determined by multiplying the average monthly bill for all utility services at the existing address. Plaintiff paid the deposit under protest as it was essential to have water service to his home.

The complaint in this case was filed August 24, 1990, and contained the following counts: 1) an action for relief against Defendant under provisions of the United States and Florida Constitutions, and 2) Defendant’s method of calculating deposits is unreasonable, unjust and inequitable, in violation of § 180.13, Florida Statutes.

The action was brought as a class action, on his own behalf and on behalf of all others similarly situated under the provi[143]*143sions of Rule 23(b)(1), 23(b)(2), and/or 23(b)(3) of the Federal Rules of Civil Procedure.

Defendant filed a motion to dismiss which is denied the instant date.

Specifically, Plaintiff alleges that he represents three proposed plaintiff classes. Plaintiff proposes that the first class (Class 1) consist of all present, past and future applicants for utilities from Clearwater who have paid or will pay a deposit to guarantee the payment of their account. While Plaintiff does not know the exact size of the proposed class, he estimates Class 1 to be in excess of ten thousand members.

The second proposed class (Class 2) would consist of all present, past and future applicants for utilities who were forced to pay a deposit equal to three times the average monthly bill for services of the previous customer at the same address. While Plaintiff does not know the exact size of Class 2, he believes that Class 2 consists of more than ten thousand persons.

Plaintiff proposes that the third class (Class 3) should consist of all present, past and future applicants for utilities operated by governmental entities within the Middle District of Florida who have paid or will pay a deposit to guarantee payment of their account. Members of this class must have dealt with a governmental entity which required a deposit, invested such a deposit, and retained the interest on their customer’s deposit. Class 3 is believed to consist of more than five hundred thousand persons.

Plaintiff also proposes a defendant class in this case. Plaintiff suggests that the City of Clearwater represent a class of all governmental entities within the Middle District of Florida that operate public utilities pursuant to Chapter 180, Florida Statutes, which require deposits from applicants for such utilities, which invest such deposits and which retain the interest earned on such deposits. The proposed defendant class is believed to consist of approximately 100 municipalities, but less than 189 municipalities.

DISCUSSION

Plaintiff has brought this action pursuant to Rule 23 of the Federal Rules of Civil Procedure and seeks to have this cause certified as a class action.

Rule 23 provides that:

(a) One or more members of a class may sue or be sued as representative parties on behalf of all only if (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.
(b) An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudication or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings [144]*144include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.

The party requesting a class action has the burden of showing that all the prerequisites of Rule 23 are satisfied. Barlow v. Marion County Hospital District, 88 F.R.D. 619, at 623 (M.D.Fla.1980).

“Determination of the question whether a lawsuit may proceed as a class action is committed to the sound discretion of the district court, and its determination will not be overturned absent a showing that it has abused its discretion.” In re Dennis Greenman Securities Litigation, 829 F.2d 1539, 1543-44, (11th Cir.1987).

Classes 1 and 2

There is no dispute that Classes 1 and 2, as defined by Plaintiff, satisfy the numerosity requirement of Fed.R.Civ.P.

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Bluebook (online)
138 F.R.D. 141, 1991 U.S. Dist. LEXIS 9833, 1991 WL 133131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pope-v-city-of-clearwater-flmd-1991.