Case 6:11-cv-01473-MSS-DAB Document 28
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LUIS W. LEBRON, individually
and as class representative,
Plaintiff,
v.
Case No.: 6:11-cv-01473-Orl-35DAB
DAVID E. WILKINS, in his official
capacity as Secretary of the Florida
Department of Children & Families,
Defendant.
/
DEFENDANT’S RESPONSE
TO PLAINTIFF’S MEMORANDUM
ON PROVISIONAL CLASS CERTIFICATION
By “provisional” class certification, the plaintiff asks the Court to certify a class
without going through the rigorous and necessary business of determining whether the strict
requirements of Rule 23 are satisfied. Even when “provisionally” certifying a class, the Court
cannot relieve the proposed representative of his burden1 to demonstrate satisfaction with all
the pertinent requirements of the Rule.
Rule 23 does not enlarge the federal courts‟ Article III jurisdiction. Amchem
Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997). The Rule merely provides a convenient
procedural vehicle to facilitate judicial economy, to provide a means for vindicating rights of
1
The movant has the burden of proving that class certification is appropriate under Rule 23.
See Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 456 (11th Cir.1996); Gilchrist v. Bolger,
733 F.2d 1551, 1556 (11th Cir.1984); James D. Hinson Electric Contracting Co. v. Jensen
Civil Construction Inc., 2011 WL 2448924 *2 (M.D. Fla. 2011).
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those who might otherwise a day in court, and to ensure consistent results in cases potentially
affecting many parties. Bulford v. H&R Block Inc., 169 F.R.D. 340 (S.D. Ga. 1996).
Before entering class relief, the Eleventh Circuit demands that a district court conduct
a rigorous analysis to ensure that all the requirements of Rule 23 are met. Sacred Heart
Health Systems, Inc. v. Humana Military Healthcare Services Inc., 601 F.3d 1159, 1159
(11th Cir. 2010). As the Fourth Circuit has explained in no uncertain terms: “Federal courts
may only adjudicate the rights of putative class members upon certification of that class
under Federal Rule of Civil Procedure 23. . . . Certification is contingent upon the trial
court‟s satisfaction after a rigorous analysis, that the prerequisites of Rule 23(a) have been
satisfied. . . . Compliance with Rule 23 must be actual, not presumed.” Partington v.
American Intern. Specialty Lines Insurance Co.,443 F.3d 334, 340 (4th Cir. 2006) (emphasis
added).2
2
See also Pruell v. Caritas Christi, 645 F.3d 81, 84 (1st Cir. 2011) (“[C]lass members other
than the named plaintiffs are merely potential parties until subject matter jurisdiction for the
named plaintiffs is established and the district court has decided to certify a class. As one
circuit court explained, „a class action, when filed, includes only the claims of the named
plaintiff or plaintiffs. The claims of unnamed class members are added to the action later,
when the action is certified as a class under Rule 23.‟”); L.A. Haven Hospice, Inc. v. Sebelius,
638 F.3d 644, 664 (9th Cir. 2011) (“„[I]njunctive relief should be no more burdensome to the
defendant than necessary to provide complete relief to the plaintiffs‟ before the court. This
rule applies with special force where there is no class certification.”) (quoting Califano v.
Yamasaki, 442 U.S. 682, 702 (1979)); Gilman v. Schwarzenegger, 638 F.3d 1101, 1105
n.4 (9th Cir. 2011) (“Because class certification was on appeal, the motion for preliminary
injunction was evaluated and granted only as to the named Plaintiffs.”); Bowens v. Atlantic
Maintenance Corp., 546 F.Supp.2d 55, 76 (E.D. N.Y. 2008) (“The unnamed class members
are not technically part of the action until the court has certified the class; therefore, once the
named plaintiffs‟ claims are dismissed, there is no one who has a justiciable claim that may
be asserted.”).
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The Rule‟s requirements cannot be set aside even if the court terms certification
“provisional.” It must apply those requirements strictly, as written, and cannot deviate from
them. As the Court in Amchem said:
of overriding importance, courts must be mindful that the Rule as now
composed sets the requirements they are bound to enforce. Federal Rules
take effect after an extensive deliberative process involving many reviewers: a
Rules Advisory Committee, public commenters, the Judicial Conference, this
Court, the Congress. See 28 U.S.C. §§ 2073, 2074. The text of a rule thus
proposed and reviewed limits judicial inventiveness. Courts are not free
to amend a rule outside the process Congress ordered, a process properly
tuned to the instruction that rules of procedure “shall not abridge ... any
substantive right.” § 2072(b).
521 U.S. at 620 (emphasis added).
Thus, in light of Amchem, the Southern District of Florida has recently concluded that
“provisional” certification required that “a court must consider the same factors that it would
consider in connection with a proposed litigation class — i.e., all Rule 23(a) factors and at
least one subsection of Rule 23(b) must be satisfied.” In re Checking Account Overdraft
Litigation, 2011 WL 2258458 *2 (S.D. Fla. 2011).
The notion that a court cannot “provisionally” certify a class without conducting a
full review of Rule 23‟s requirements gains support from the recent Supreme Court opinion
in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541(2011). The pivotal question there was
whether the putative class plaintiffs had established sufficient commonality to maintain a
class in the suit. In the opinion, however, the Court re-emphasized the need to find
satisfaction with all Rule 23‟s elements before certifying a class and that a court could not
simply certify based on the plaintiff‟s suggestion or the allegations in the complaint:
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Rule 23 does not set forth a mere pleading standard. A party seeking class
certification must affirmatively demonstrate his compliance with the Rule —
that is, he must be prepared to prove that there are in fact sufficiently
numerous parties, common questions of law or fact, etc.
Wal-Mart Stores , 131 S.Ct. at 2551. Indeed, the Court reiterated that certification is justified
only after a rigorous analysis of the Rule‟s prerequisites and that actual — rather than
presumed — compliance is necessary before class certification. Id. at 2551. Here, plaintiff‟s
demand for provisional certification asks this Court to make the very presumption that the
Wal-Mart Court disapproved.
As the plaintiff has noted, many courts “provisionally” certify classes — that is, allow
for class relief at the preliminary injunction phase of a case.3 But they cannot do so — or
should not have done so — without a rigorous inquiry into whether the pertinent
requirements of Rule 23 are satisfied. Failure to take that essential step deviates from the
Eleventh Circuit‟s requirement for a rigorous analysis and from the teachings of Amchem and
Wal-Mart, because the Rule makes no provision for “provisional” certification based on a
mere assertion in a paper or a complaint. The Rule speaks only of certification — and only
when the requirements of the Rule are satisfied.4
Therefore, the plaintiff‟s request for “provisional” certification invites the Court to
commit error, to the extent the plaintiff urges certification without a rigorous and complete
3
In a broader sense, all class certification orders are provisional, because any certification
order can be altered as the case unfolds. Amchem, 521 U.S. at 620.
4
This Court‟s Local Rule 4.04 requiring the filing of a class certification motion within
ninety days of the filing of the complaint is premised upon the notion that the Court should
not be in the position of having to grant relief based on provisional notions regarding the
parties to whom relief should actually extend.
4
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consideration of whether the pertinent Rule 23 requirements are met. Because the plaintiff
has already filed a motion for class certification, the Court has only to take up that motion
when it is fully briefed.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
/s Jason Vail
_____________
Marion Drew Parker
General Counsel
Florida Bar No. 0676845
Florida Department of Children and
Families
1317 Winewood Blvd.
Bldg. 2 Rm. 204
Tallahassee, FL 32399
Tel: 850-488-2381
Fax: 850-922-3947
drew_parker@dcf.state.fl.us
Jason Vail
Assistant Attorney General
Florida Bar No. 298824
jay.vail@myfloridalegal.com
Lisa M. Raleigh
Special Counsel
Florida Bar No. 858498
lisa.raleigh@myfloridalegal.com
Office of the Attorney General
The Capitol, PL-01
Tallahassee, Florida 32399-1050
(850) 414-3300
Fax: (850) 414-9650
Jesse Panuccio
Florida Bar. No. 31401
Deputy General Counsel
Executive Office of the Governor
Room 209
400 S. Monroe St.
The Capitol
Tallahassee, FL 32399-6536
Tel: 850-488-3439
Fax: 850-922-0309
jesse.panuccio@
eog.myflorida.com
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished to counsel of
record through use of the Court‟s CM/ECF system on September 29, 2011.
/s Jason Vail
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