Category Archives Judge Smith

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,…

It appears not, at least not in the Western District of Missouri (or really anywhere else).  In Resurgent Capital Services v. Thomason, 2012 WL 5398189 (Nov. 5, 2012, W.D. Mo), the plaintiff in a debt collection case attempted exactly that when the defendant counterclaimed with a request to certify a class under the Fair Debt Collection Act.  Judge Smith remanded the case after an efficient analysis, relying on the plain language of CAFA itself (28 U.S.C. § 1441(a)) that limits removal to “any defendant” and finding nothing in CAFA’s legislative history indicating Congress had intended to alter the traditional rule that a counterclaim defendant may not remove a case to federal court.  As Judge Smith noted, his conclusion was consistent with those of other federal courts addressing the same issue.  So if you want to be in federal court, don’t wait for the counterclaim, even under CAFA.

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