Reader v. Magma-Superior Copper Company

515 P.2d 860, 110 Ariz. 115, 1973 Ariz. LEXIS 454

• Court: Arizona Supreme Court
• Decided: November 6, 1973
• Docket: 10414-PR
• Status: Published

Opinions

HAYS, Chief Justice.

Appellants bring suit against six alleged owners or operators of copper smelters in Arizona and claim to represent a class consisting of all “persons living in Maricopa County who have occasion to and in fact do breathe and visualize air polluted by defendants.” This class is specifically described in appellants’ motion for determination as “[that area] bounded by the Superstition Mountains on the east; the White Tank Mountains on the west; the McDowell Mountains on the north; and the South Mountains on the south. The class of people represented by the plaintiffs herein reside within the aforedescribed area and number approximately 700,000 persons.” Reader seeks compensatory and punitive damages for allegedly intentionally (first claim) and negligently (second claim) discharging pollutants into the air which were transported to the Salt River Valley and which restrict visibility and cause aesthetic injury to the environment. The third claim for relief seeks to enjoin the operation of devices which emit the toxic effluent to prevent continued irreparable injury to the ecology and to appellants’ health, comfort and enjoyment of the environment.

Reader filed a motion in the trial court under Rule 23(a)(1) of the Rules of Civil Procedure, 16 A.R.S., for an order permitting the lawsuit to proceed as a class action. The trial court determined, without explanation, that the action could not be maintained as a class action and Reader appealed. The Court of Appeals dismissed the appeal on the ground that the trial court’s order was interlocutory and not appealable. We vacated the order of the Court of Appeals without prejudice to either party, with directions to proceed in this court with the appeal on the merits, 108 Ariz. 186, 494 P.2d 708.

The sole question before us is whether the trial court erroneously dismissed appellants’ suit as a class action.

Despite the large amount of background material and the history of the evolution and repeated amendments to Rule 23, at the time our opinion was being formulated nearly everything that need be known about the issue before us was contained in Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2 Cir. 1968) (hereinafter referred to as Eisen II). Unfortunately, as our labors and research were about to culminate in an opinion, the Eisen case was again appealed to the U.S. Court of Appeals, Second Circuit, and on May 1, 1973, it handed down a new opinion containing much new law. Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (hereinafter referred to as Eisen III). In our opinion, Eisen III effectively disposes of any previously existing possibility that the instant case could proceed as a class action.

We are well aware that at this juncture the United States Supreme Court has granted certiorari in the latest Eisen case. We consider it appropriate, however, to proceed with our disposition of the case.

Eisen III made it clear that it had not reversed Eisen II but that since the remand of Eisen II, many facts had become clearer because of the hearings held in the district court, and five years of effort in that court had made it clear that the class was unmanageable.

In the instant case, we have concluded that this class is completely unmanageable because of the impossibility of distributing to the class without resorting to “fluid recovery,” which has been stamped as improper by Eisen III. The instant case is even more difficult because of the vague and indefinite damage suffered, and the impossibility of the vast majority of the members of the class being able to put a value on their individual damages.

A review of the Eisen cases, plus a voluminous number of other class actions, illustrates the usual necessity for the trial court to apply the applicable standards and make appropriate findings of fact, as well as ultimate conclusions of law. See, e. g., City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295, 297 (2 Cir. 1969), Cusick v. N. V. Nederlandsche Combinatie Voor Chemische Industrie, 317 F.Supp. 1022-1023 (E.D.Pa.1970), Purdes v. Carvel Hall, Inc., 301 F.Supp. 1256, 1259 (S.D. Iowa 1969), Berman v. N. H. Jockey Club, Inc., 292 F.Supp. 993, 1000 (D.N.H. 1968), rev’d, 414 F.2d 311 (1 Cir. 1969), School District of Philadelphia v. Harper & Row Publishers, Inc., 267 F.Supp. 1001, 1004 (E.D.Pa.1967).

In some cases it is reasonable for the trial judge to make his findings on the basis of the pleadings alone. Chicago v. General Motors Corp., 332 F.Supp. 285, 291 (N.D.Ill.1971). In other circumstances, hearings and the production of evidence may be necessary. Eisen v. Carlisle & Jacquelin, supra. Illinois v. Harper & Row Publishers, Inc., 301 F.Supp. 484 (N. D.Ill.1969).

A careful examination of the facts and circumstances alleged in the pleadings indicates that the requirements of Rule 23(a)(2)¹ are not met. There are not questions of law or fact common to the class; in fact, the class attempted to be established is so overbroad as to defeat the very definition of the word. The sheer number that plaintiffs try to embrace gives us pause. The differences in the place of residence, chronological age, length of residence, health and physical condition, economic and social interests of the seven hundred thousand proposed' plaintiffs, coupled with the different locations, varying operations, diverse climatic conditions, and varying pollution propensities of the seven different smelter companies indicate everything but common questions of law and fact.

Since the case fails to meet the requirements of Rule 23(a)(2), it logically follows that neither does it comply with Rules 23(a)(3) and 23(a)(4).

This court is well aware that there is a need for viable class action relief within our judicial system. The overbreadth of the plaintiffs’ action, however, compels us to affirm the action of the trial court.

Dismissal of plaintiff-appellants’ suit as a class action affirmed.

HOLOHAN, J., and JACK L. OGG, Court of Appeals Judge, concur.

Note: Vice Chief Justice CAMERON did not participate in the determination of this matter. JACK L. OGG, Judge of the Court of Appeals, Division One, was called to sit in his stead.

1 . 23(a) Prerequisites to a class action. 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.