“There Are 5,000 Stories to Tell”: Western District of Missouri Rejects Bid to Certify Power-and-Light Discrimination Class
Emphasizing the individualized nature of each putative class member’s experience, Judge Ortrie Smith denied the plaintiffs’ motion for class certification in Combs v. The Cordish Companies et al., No. 14-0227, 2015 WL 438154 (W.D. Mo. Feb. 3, 2015).
Alleging that the defendants unlawfully limited their access to Kansas City’s popular Power and Light District, the plaintiffs brought suit under 42 U.S.C. § 1981 and sought to certify a class comprised of all persons of African-American descent who were “excluded, ejected, harassed, or suffered other discriminatory treatment” at the hands of the defendants. In denying class certification, Judge Smith homed in on the need for detailed and individual factual inquiries. In particular, he focused on the fact that putative class members would have to prove more than that the defendants intended to discriminate against them – they would also have to demonstrate that they were in fact victims of discrimination. This, according to Judge Smith, “requires an individualized examination of the circumstances surrounding each and every ejection” and defeats a finding of predominance.
For example, each of the estimated 5,000 putative class members may have to testify about their particular harassment, wrote Judge Smith. And even if each person were to testify for only an hour, this would require 625 trial days – a figure that would likely be far greater, given that the defendants would be entitled to present their own witnesses as well. “It will literally take years to resolve these individualized issues, which means the common issues do not predominate over the individual issues.”
Although cognizant that the community as a whole may have been harmed by the defendants’ conduct, Judge Smith noted that such an observation does not mean that class certification is permitted under Rule 23: “There are 5,000 stories to tell, not one – and therein lies the difference between a permissible class action and what Plaintiffs propose.”