Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

1
United States Court of Appeals,
2
3
Fifth Circuit.
4
5
No. 94-60545.
6
7
Dessie Lee APPLEWHITE, et al., Plaintiffs-Appellants,
8
9
v.
10
11
REICHHOLD CHEMICALS, INC., Defendant-Appellee.
12
13
Oct. 31, 1995.
14
15
Appeal from the United States District Court for the Southern
16
District of Mississippi.
17
18
Before WISDOM, GARWOOD and DAVIS, Circuit Judges.
19
20
WISDOM, Circuit Judge.
21
22
The appellants seek review of the district court's refusal to
23
certify a class action lawsuit and its dismissal of the appellants'
24
complaint. We AFFIRM the district court's denial of class
25
certification but VACATE the dismissal and REMAND for
26
reconsideration of whether dismissal is appropriate in this case.
27
I.
28
29
Reichhold Chemicals, Inc., the defendant/appellee, operated a
30
chemical manufacturing plant in Columbus, Mississippi between
31
January 1975 and March 1977. Operations at the plant closed after
32
an explosion and fire in 1977. In 1984, the Reichhold site was
33
designated for cleanup under the EPA Superfund after the discovery
34
of toxic wastes at the site.
35
Numerous suits were filed against Reichhold Chemicals. In
36
1989, in one of these cases, Levell Mark et al. v. Reichhold
37
Chemicals, Inc., a class was certified under Federal Rule of Civil
38
Procedure 23(b)(1)(B) for the resolution of punitive damage claims
39
against Reichhold Chemicals. The notice of certification provided

1
that only those litigants with a lawsuit pending against Reichhold
2
or filed within sixty days from the date of notice seeking punitive
3
damages and who were found entitled to compensatory damages would
4
be eligible to share in the class's recovery.
5
The plaintiff/appellants filed this suit in response to the
6
punitive damages class notice. Dessie Lee Applewhite, along with
7
two hundred other plaintiffs, filed this suit seeking both
8
compensatory and punitive damages from Reichhold Chemicals for
9
injuries allegedly caused by the defendant's operations in
10
Columbus. This action was originally filed in the Mark case. The
11
case, however, was subsequently re-captioned Dessie Lee Applewhite
12
et al. v. Reichhold Chemicals, Inc.
13
In 1993, the plaintiffs, in a joint motion with plaintiffs in
14
the case of Delores Abram et al. v. Reichhold Chemicals, Inc.,
15
filed a motion for class certification under Rule 23(b)(3). After
16
some discovery, the district court denied the plaintiffs' motion
17
for class certification. The district court also dismissed the
18
plaintiffs' complaint without prejudice based on a March 3, 1992
19
order in the Mark case requiring all subsequent suits against
20
Reichhold Chemicals regarding the Columbus site to be filed
21
separately. On appeal, the plaintiffs challenge both of these
22
decisions.
23
II.
24
25
The district court has wide discretion in deciding whether to
26
certify a class action.1 We review this decision for an abuse of
1Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 471-72
(5th Cir.1986).

1
discretion.2 The party seeking class certification has the burden
of showing that the requirements for a class action have been met.3
2
3
There are six basic requirements for a Rule 23(b)(3) class action
4
suit. First, Rule 23(a) imposes four prerequisites: numerosity,
5
commonality, typicality, and adequacy of representation. In
6
addition, Rule 23(b)(3) requires that the common factual and legal
7
issues predominate and that the movant show that a class action is
the superior method of adjudication.4
8
9
The district court determined that the plaintiffs had
10
"totally failed to meet the requirements of Rule 23 for
11
certification of the proposed class."5 We agree. On appeal, the
12
plaintiffs' brief fails to address two of the six requirements for
13
class action certification.6 Failure to brief and argue these
14
issues constitutes waiver.7 Also, in regard to the commonality
2Id. at 472.
3Zeidman v. J. Ray McDermott & Company, Inc., 651 F.2d 1030,
1038 (5th Cir.1981).
4See, Jenkins, 782 F.2d at 472-73.
5The district court's memorandum opinion denying class
certification and dismissing the plaintiffs' complaint, Record,
volume 2 at 272.
6The plaintiffs' brief fails to address the requirements of
Rule 23(b)(3) that the common issues predominate over those
issues affecting individual litigants and that the movant show
that a class action is the superior method of adjudication.
7Gann v. Fruehauf Corporation, 52 F.3d 1320, 1328 (5th
Cir.1995) (deeming a claim abandoned on appeal because the
appellant did not "advance arguments in the body of his brief in
support of his appeal of his ... claims"); Cavallini v. State
Farm Mutual Auto Insurance Company, 44 F.3d 256, 260 n. 9 (5th
Cir.1995) (noting that "the failure to provide any legal or
factual analysis of an issue results in waiver of that issue");
United States v. Maldonado, 42 F.3d 906, 910 n. 7 (5th Cir.1995)
(refusing to consider an issue because it was not discussed in

requirement, the plaintiffs only assert one common issue.8
1
2
Although the threshold for commonality is not high, class
certification requires at least two issues in common.9
3
4
Furthermore, the plaintiffs seek a Rule 23(b)(3) class action which
5
requires that the common issues predominate. If the plaintiffs
6
cannot identify more than one common issue, they cannot argue that
7
the common issues predominate this litigation. Finally, the
8
omissions in the plaintiffs' appellate brief, as well as counsel's
9
conduct below, counsels against a finding that the class members
10
would be adequately represented. Since the plaintiffs have failed
11
to demonstrate that their case meets the requirements of Rule 23,
12
we hold that the district court did not abuse its discretion when
13
it denied class certification.
14
The plaintiffs also argue that the district court erred when
15
it dismissed their complaint without prejudice based on a blanket
16
order that all future suits against Reichhold Chemicals should be
17
filed separately.10 Generally, permissive joinder of plaintiffs
the appellant's brief).
8In their brief, the plaintiffs argue that the common issue
is the defendant's gross negligence. The plaintiffs close their
section on commonality by stating that "the parties to this
litigation have one or more issues of law or fact common to them
all". The plaintiffs choose not to identify what these
additional common issues are, if any. We will not attempt to
identify those issues on behalf of the plaintiffs.
9Stewart v. Winter, 669 F.2d 328, 335 n. 16 (5th Cir.1982)
(noting that "by its terms, Rule 23(a)(2) requires more than one
common question").
10The plaintiffs also maintain that the district court's
dismissal violates their rights to due process and equal
protection of the laws as well as the doctrine of separation of
powers. The plaintiffs cite no authority in support of these
arguments. In the light of the plaintiffs failure to adequately

1
under Federal Rule of Civil Procedure 20 is at the option of the
2
plaintiffs, assuming they meet the requirements set forth in Rule
3
20.11 Under Rules 20 and 21, the district court has the discretion
4
to sever an action if it is misjoined or might otherwise cause
5
delay or prejudice.12 Further, the district court also has
6
discretion to sever claims under Federal Rule of Civil Procedure
7
42(b), in furtherance of convenience or economy, or to prevent
8
prejudice. This discretion, however, should be exercised after an
9
examination of the individual case. Thus, we remand this case for
10
the district court to consider whether the plaintiffs are properly
11
joined and whether they should be allowed to continue in one
12
action.
13
III.
14
15
We AFFIRM the district court's decision not to certify a class
16
action under Rule 23(b)(3) but VACATE the dismissal and REMAND for
17
further proceedings on the issues of joinder and the advisability
18
of severance.
19

brief these issues and our decision to vacate the dismissal and
remand, we do not address the plaintiffs constitutional
arguments.
11Field v. Volkswagenwerk AG, 626 F.2d 293, 299 (3rd
Cir.1980). Rule 20 requires that all of the plaintiffs' claims
arise out of the same transaction or occurrence and that there is
a common issue of fact or law. See, Demboski v. CSX
Transportation, Inc., 157 F.R.D. 28, 29-30 (S.D.Miss.1994).
12Mosley v. General Motors Corporation, 497 F.2d 1330, 1332-
33 (8th Cir.1974); see also, Demboski, 157 F.R.D. at 29; Hanley
v. First Investors Corporation, 151 F.R.D. 76, 77-80
(E.D.Tex.1993).