Saey v. Compusa, Inc.

174 F.R.D. 448, 39 Fed. R. Serv. 3d 255, 1997 U.S. Dist. LEXIS 12060, 1997 WL 467141
CourtDistrict Court, E.D. Missouri
DecidedAugust 14, 1997
DocketNo. 4:96CV365 CDP
StatusPublished
Cited by2 cases

This text of 174 F.R.D. 448 (Saey v. Compusa, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Saey v. Compusa, Inc., 174 F.R.D. 448, 39 Fed. R. Serv. 3d 255, 1997 U.S. Dist. LEXIS 12060, 1997 WL 467141 (E.D. Mo. 1997).

Opinion

MEMORANDUM AND ORDER

PERRY, District Judge.

This matter is before the Court on plaintiffs’ amended motion to certify this litigation as a class action. On June 26, 1997, the Court held a class certification hearing on plaintiffs’ motion. Because plaintiffs fail to satisfy Federal Rule of Civil Procedure 23(a)(l)’s requirement of numerosity, the Court will deny plaintiffs’ amended motion to certify the class.

This case arises out of plaintiff Thomas Saey’s January 17, 1996, purchase of a computer from defendant CompUSA’s Maryland Heights, Missouri, retail store. After using the computer for less than a day, Saey discovered that the computer contained various pornographic images in the computer’s hard-drive data storage device; Saey later discovered that these images were placed there by the computer’s previous owner, although CompUSA had sold the computer to him as a new unit. Plaintiffs allege that defendant frequently allows customers to return computers after using them, and then repackages and resells those “used” computers as “new” without informing the second purchasers and without providing a discount.

I. Proposed Class Definition

For purposes of class certification, plaintiffs are proceeding solely on their first amended complaint’s allegation that defendant engaged in Merchandising Practices Act Violations (Count I). Plaintiffs, in their December 4, 1996, class definition, seek to define the putative class as consisting of:

all persons or entities who purchased computer hardware ... from defendant between February 9, 1990 and the present which had previously been purchased and returned to defendant and which defendant re-sold but not at a reduced price. Plaintiffs further propose to limit the certification to Count I, Missouri’s Deceptive Trade Practices Act and all other states which have a Deceptive Trade Practices Act, that do not require proof of intent to deceive or reliance, that allow the recovery of damages, and do not prohibit class actions.

(Footnote omitted). Plaintiffs alternatively propose a class consisting of:

individuals who fit the above definition, and who purchased products from defendant’s store in Maryland Heights, Missouri under the Missouri Merchandising Practices Act only.

II. Class Action Standard

Federal Rule of Civil Procedure 23(a) allows one or more individuals to sue as representative parties on behalf of a class “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.” Fed.R.Civ.P. 23(a); see also Alpern v. Utili-Corp United, Inc., 84 F.3d 1525, 1539 (8th Cir.1996); Morgan v. United Parcel Service of America, Inc., 169 F.R.D. 349, 354 (E.D.Mo.1996). In addition to satisfying the four prerequisites of numerosity, commonality, typicality, and adequacy of representation, the proposed class must fall within one of the subcategories of Rule 23(b). Morgan, 169 F.R.D. at 354. The Court has broad discretion in determining whether an action may be maintained as a class action. Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir.1980), cited in Ad Hoc Committee v. City of St. Louis, 143 F.R.D. 216, 219 (E.D.Mo.1992); see also Mira v. Nuclear Measurements Corp., 107 F.3d 466, 474 (7th Cir.1997).

III. Discussion

To determine whether plaintiffs meet Rule 23(a)(l)’s numerosity requirement, the Court [450]*450must consider the number of persons in a proposed class, the nature of the action, the size of the individual claims, the inconvenience of trying individual suits, and any other factors relevant to the practicability of joinder. Fed.R.Civ.P. 23(a)(1); see Paxton v. Union Nat’l Bank, 688 F.2d 552, 559-60 (8th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983), cited in Emanuel v. Marsh, 828 F.2d 438, 444 (8th Cir.1987); see also Morgan, 169 F.R.D. at 355; Ad Hoc Committee, 143 F.R.D. at 220.

At the class action certification hearing, plaintiffs presented the testimony of three individuals other than Saey who purchased computers as new from defendant that they later came to believe were previously opened and/or used. Putative class member Trudy Sample purchased her computer from defendant’s Maryland Heights store. When she attempted to register her computer with the manufacturer she learned that it had already been registered to a previous owner. In her case, although the sealed box containing the computer was “absolutely pristine” on the outside, it contained trash and only one manual and no packing list when she opened it. Sample subsequently returned the computer, received a full refund, and purchased a computer from a different store. Saey testified at the hearing that Sample is not a member of his class because customers who received a full refund from defendant were not included.

Gregg Sehinzing likewise discovered that the Compaq computer he purchased from defendant for his business was registered to a previous owner when he discovered the prior owner’s personal address book, among other items, on the computer’s hard drive. Sehinzing returned to defendant’s store, received a credit, and did not return the computer. Because Sehinzing purchased the computer for his business, he does not have standing to bring a claim under Missouri’s Merchandise Practices Act, and so is not a member of the class. See Mo. Ann. Stat. § 407.025.1 (Vernon 1990).

David Varwig, who is also not a putative class member, purchased a computer from defendant that contained someone else’s files. He returned his computer to defendant and was given a new one; Varwig testified that he was satisfied with this resolution of his situation. Varwig was unable to say that defendant’s employees re-packaged the box containing the allegedly used computer.

Saey testified that he was unaware of putative class members other than those who testified at the hearing. Two potential class members who were identified during discovery testified by deposition. Jaddin Hanson purchased a computer which she was told had been a “floor model,” although the box bore a yellow sticker indicating “Super Value” and “Customer Return.” Larry Smith had two different computers delivered which did not work properly, but knew of no evidence that those computers had been used and resold as new. He received all of his money back.

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174 F.R.D. 448, 39 Fed. R. Serv. 3d 255, 1997 U.S. Dist. LEXIS 12060, 1997 WL 467141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saey-v-compusa-inc-moed-1997.