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(Cite as: 2002 WL 31941041)

 

United States District Court,

D. Kansas.

WYANDOTTE NATION, Plaintiff,

v.

CITY OF KANSAS CITY, KANSAS et al., Defendant.

No. 01-2303-CM.

Dec. 2, 2002.

REPORT AND RECOMMENDATION

WAXSE, Magistrate J.

NOTICE

*1 Within ten days after a party is served with a copy of these proposed findings and recommendations, that party may, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, file written objections to such proposed findings and recommendations, including any findings of fact and conclusions of law. A party must file objections within the ten-day period allowed if that party wants to have appellate review of the proposed findings of fact, conclusions of law, and the recommended disposition. If no objections are timely filed, no appellate review will be allowed by any Court. [FN1]

FN1. Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991).

REPORT AND PROPOSED FINDINGS

A. Introduction

Pending before the Court is a Joint Motion for Certification of a Defendants' Class (doc. 109-1) filed by Plaintiff and Defendant Unified Government of Wyandotte County/Kansas City, Kansas ("Unified Government") (collectively "Movants"). For the reasons stated below, the undersigned Magistrate Judge recommends the Motion be granted.

B. Factual Background

Plaintiff Wyandotte Nation is a federally-recognized Indian tribe. Plaintiff asserts all Defendants named in its First Amended Complaint are current record owners of lands allegedly belonging to Plaintiff. More specifically, Plaintiff alleges each of the 1,362 named Defendants in the First Amended Complaint assert an interest in, claim title to and/or otherwise purport to own lands to which Plaintiff legally holds title.

In this lawsuit, Plaintiff seeks declaratory judgment, recovery of possession of real property and monetary damages arising out of Defendants' alleged improper taking of, and trespass upon, the land at issue. Plaintiff asserts in its First Amended Complaint that it acquired the lands at issue by Treaty ratified in 1848, and that its interest was never legally or properly extinguished or transferred. Accordingly, Plaintiff asserts it still holds legal title to the lands, and that its title is superior to any title Defendants purport to hold.

In this Motion, Movants seek class action certification pursuant to Fed.R.Civ.P. 23(b)(1) and/or 23(b)(2) relating to the declaratory and equitable issues in this case. Movants submit Defendant Unified Government as the proposed representative of the prospective class. In support of their Motion, Movants assert service upon, and joinder of, the 1,362+ defendants in this matter is unlikely to be successful and, even if ultimately successful, such joinder would impose an undue burden given the number of parties involved and the complexity of the issues raised.

C. Applicable Law

Federal Rule of Civil Procedure 23 governs the certification of class actions. The decision whether to certify an action as a class action is committed to the discretion ofthe trial court. [FN2] In exercising its discretion, the court must perform a "rigorous analysis" of whether the class satisfies the requirements of Fed.R.Civ.P. 23. [FN3] "Whether a case should be allowed to proceed as a class action involves intensely practical considerations, most of which are purely factual or fact-intensive." [FN4]

FN2. Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir.1982); Schreiber v. National Collegiate Athletic Ass'n, 167 F.R.D. 169 (D.Kan.1996).

FN3. Heartland Communications, Inc. v. Sprint Corp., 161 F.R.D. 111, 114 (D.Kan.1995) (citing Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Midland Bancor, Inc. 158 F.R.D. 681 (D.Kan.1994)).

FN4. Id. (quoting Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir.1988)).

*2 The parties moving for certification have the burden of proving that all four requirements of Rule 23(a) are met by the purported class and the purported class representative and that at least one requirement of Rule 23(b) is met by the purported class and the purported class representative. [FN5]

FN5. Id. (citing Reed v. Bowen, 849 F.2d at 1309).

With regard to the four requirements within subsection (a), the Rule provides:

One or more members of a class may sue or be sued as representative parties on behalf of all 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). These four requirements are commonly referred to as numerosity, commonality, typicality and adequacy of representation.

With regard to Rule 23(b), Movants assert that either subsection 23(b)(1)(B) and/or subsection 23(b)(2) applies to the circumstances presented here:

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against individual members of the class would create a risk of

* * *

(B) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.

* * *

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. [FN6]

FN6. Fed.R.Civ.P. 23(b).

D. Analysis

1. The Requirements of Fed.R.Civ.P. 23(a)(1)

a. Numerosity

Rule 23(a)(1) requires that "the class [be] so numerous that joinder of all members is impracticable." The numerosity requirement calls for a practical judgment based on the particular facts of each case. [FN7] Thus, there is no set formula for determining whether the numerosity requirement is met. [FN8] Although it is not necessary for the party seeking class certification to show the exact size of the class, [FN9] the movant "must present some evidence or otherwise establish by reasonable estimate the number of class members who may be involved." [FN10]

FN7. Schreiber v. National Collegiate Athletic Ass'n, 167 F.R.D. at 173 (citations omitted).

FN8. Id. (citing Wilcox Dev. Co. v. First Interstate Bank of Oregon, N.A., 97 F.R.D. 440, 443 (D.Ore.1983) (where court held 40 class members enough to satisfy numerosity requirement); Dale Elec., Inc. v. R.C.L. Elec., Inc., 53 F.R.D. 531, 534-36 (D.N.H.1971) (finding 13 members of class sufficient to satisfy numerosity requirement)).

FN9. Id. (citation omitted).

FN10. Heartland Communications, Inc. v. Sprint Corp., 161 F.R.D. at 115 (citing Rex v. Owens, 585 F.2d 432, 436 (10th Cir.1978)).

In support of numerosity, Movants refer to the 1,362 individuals and/or entities named as Defendants in the First Amended Complaint filed by Plaintiff. In the First Amended Complaint, Plaintiff alleges each of the 1,362 defendants assert an interest in, claim title to and/or otherwise purport to own lands to which Plaintiff legally holds title. Given the defendant class would number at least 1,362, the Court finds joinder is impracticable and, thus, the numerosity requirement is satisfied. [FN11]

FN11. See, Olenhouse v. Commodity Credit Corp., 136 F.R.D. 672, 679 (D.Kan.1991) (good faith estimate of at least 50 members sufficient size to maintain class action).

b. Commonality

*3 The next requirement of Rule 23(a) is that there be questions of law or fact common to the class. In support of commonality, Movants identify numerous key factual and legal issues that will arise in Plaintiff's claim against any defendant:

? whether Plaintiff can establish ownership of the disputed land under the 1848 Treaty and/or any subsequent treaty or conveyance;

? the identity and location of land referenced in the conveyances and treaties;

? Plaintiff's actions or inactions concerning the land over the past 150 years;

? Plaintiff's standing and legal status; and

? The application of laches and/or statutes of limitation or repose or other law that may bar Plaintiff's claims.

The Court finds the issues listed by Movants reflect the general liability of all those asserting an interest in the subject lands and are crucial to the survival of Plaintiff's action. Based on this information, the Court finds there are a sufficient number of common factual and legal issues surrounding Plaintiff's claim to meet the commonality requirement set forth in Fed.R.Civ.P. 23(a)(2).

c. Typicality

The third requirement of Rule 23(a) is that "the claims or defenses of the representative parties [be] typical of the claims or defenses of the class." More specifically, the typicality element requires that the representative party possess the same interests and suffer the same injuries as the proposed class members. [FN12] Claims may be typical without being identical; the representative's claim may differ factually and still be typical of the class if it arises from the same events or course of conduct and shares the same legal or remedial theory. [FN13] Like commonality, typicality results directly from the nature of Plaintiff's claims.

FN12. Heartland Communications, Inc. v. Sprint Corp., 161 F.R.D. at 117 (citing Olenhouse v. Commodity Credit Corp., 136 F.R.D. 672, 679 (D.Kan.1991)).

FN13. Id.

As noted in the preceding subsection, Plaintiff's claims against Defendant Unified Government arise from the same events or course of conduct and share the same legal and remedial theories as Plaintiff's claims against the rest of the proposed class. As such, the defenses raised by Defendant Unified Government are not antagonistic to, and are typical of, the defenses that would be raised by other class members. Since Defendant Unified Government must defend against the same major elements that the other members of the proposed class must defend, the Court finds that the typicality requirement is met.

d. Adequacy of Representation

In order to show that Defendant Unified Government will fairly and adequately protect the interests of the class, Movants must show that (1) Defendant Unified Government is able to defend the action vigorously through qualified counsel; and (2) there is no conflict between the interests of the Unified Government and the interests of the class members. [FN14]

FN14. Olenhouse v. Commodity Credit Corp., 136 F.R.D. at 680.

The Unified Government has a significant stake in the outcome of this suit. The interests of the Unified Government and class members in opposing Plaintiff's land claims in order to remove cloud on title of the subject land are identical and aligned. Thus, the Court finds that the Unified Government will vigorously and competently defend the interests of the defendant class.

*4 Movants maintain the Unified Government has the economic means to fund the defense of these interests on behalf of the other class members, who are its citizens or property owners and taxpayers. Furthermore, Movants have submitted documentation that it has engaged competent outside counsel to assist its own legal staff in representing the interests of the class. Based on this information, the Court finds Defendant Unified Government fairly and adequately will protect the interests of the class.

2. The Requirements of Fed.R.Civ.P. 23(b)

In addition to meeting the requirements of Rule 23(a) for class certification, Movants also must show compliance with at least one of the subsections within Rule 23(b). Movants assert both subsections (b)(1)(B) and (b)(2) are applicable to the circumstances presented in this case.

a. Rule 23(b)(1)

While Fed.R.Civ.P. 23 does not explicitly address whether a defendant class may be certified, subsection (b)(1) contains language which indicates that the subsection is applicable to defendant class certification. [FN15] As a result, certification under (b)(1) would appear to be viable for both plaintiff and defendant classes.

FN15. See Fed.R.Civ.P. 23(b)(1) ("the prosecution of separate actions by or against individual members") (emphasis added).

While Rule 23(b)(1)(A) addresses the adverse risk of separate adjudications to the individual or entity opposing a prospective class, Rule 23(b)(1)(B) addresses the adverse risk of separate adjudications to individual members of the class, including potential defendants who are not joined in the action. [FN16] Relying heavily on the Court's analysis in Canadian St. Regis Band of Mohawk Indians v. State of New York, [FN17] Plaintiff and Defendant Unified Government argue the nature of Plaintiff's claims brings this action within the rubric of Rule 23(b)(1)(B). The Court agrees.

FN16. Fed.R.Civ.P. 26(b)(1)(B) (authorizing certification where "the prosecution of separate actions by or against individual members of the class would create a risk of ... adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.").

FN17. 97 F.R.D. 453 (N.D.N.Y.1983).

Analogous to the circumstances presented in this case, Canadian St. Regis was a class action brought on behalf of all descendants of Indians within a certain village. The plaintiff class of descendants brought suit seeking a declaration regarding ownership of, and the right to possess, approximately 12,000 acres of land in northern New York, plus damages for approximately 130 to 170 years during which the descendants had been out of possession. As in the case here, Plaintiffs moved to certify a defendant class.

In opposing the motion, one of the named defendants took the position that Rule 23(b)(1)(B) cannot accommodate a defendant class action, because the doctrine of collateral estoppel was sufficient to protect the defendant class members' interests. [FN18] In analyzing this issue, the Canadian St. Regis court agreed "that non-party landowners would not be legally bound by a determination on liability favorable to the plaintiffs, and that stare decisis alone will not warrant certification under Rule 23(b)(1)(B)." [FN19] The majority of courts agree with this conclusion. [FN20]

FN18. Canadian St. Regis, 97 F.R.D. at 458 (citing Blonder- Tongue Laboratories, Inc. v. Univ. of Illinois Found., 402 U.S. 313 (1971)) (members of a class can receive the benefit of prior determinations against the plaintiff--whether or not they were parties to those actions-- by invoking collateral estoppel defensively)).

FN19. Id.

FN20. In re Dennis Greenman Sec. Litig., 829 F.2d 1539, 1546 (11th Cir.1987) (citing Larionoff v. United States, 533 F.2d 1167, 1181 n. 36 (D.C.Cir.1976), aff'd, 431 U.S. 864 (1977); LaMar v. H & B Novelty and Loan Co., 489 F.2d 461, 467 (9th Cir.1973)); In re Arthur Treacher's Franchise Litigation, 93 F.R.D. 590, 593 (E.D.Pa.1982); Mudd v. Busse, 68 F.R.D. 522, 530 (N.D.Ind.1975); Kekich v. Travelers Indem. Co., 64 F.R.D. 660, 667 (W.D.Pa.1974); Landau v. Chase Manhattan Bank, 367 F.Supp. 992 (S.D.N.Y.1973); 3B Moore's Federal Practice ¶ 23.35[2] at 23- 281 (1985).

The court went on to find, however, that "adjudication favorable to the plaintiffs against the individual defendants on the liability issue would have a far greater impact than simply stare decisis consequences. [FN21] The court found that "[i]f the plaintiffs prevail on their claim against the present defendants, the value of all interests of land in the claim area will be effectively eliminated, including the interests of those landowners who are specifically excluded from the present suit." [FN22]

FN21. Id. (citing Oneida Indian Nation of Wisconsin v. State of New York, 85 F.R.D. 701, 706 (N.D.N.Y.1980)).

FN22. Id. (stating it is "an obvious and central point of Rule 23(b)(1)(B) ...to protect non-parties from the effects of determinations adverse to the individual class members who are in the action.").

*5 The circumstances presented in Canadian St. Regis --as well as the circumstances presented in this case--are analogous to those contemplated by the Advisory Committee, who noted at the time the Rule was promulgated that subsection (b)(1)(B) would apply to "situations where the judgment in a nonclass action by or against an individual member of the class, while not technically concluding the other members, might do so as a practical matter." [FN23]

FN23. Advisory Committee Notes to the 1966 Amendments to Rule 23, 39 F.R.D. 69, 100-01 (1966).

This Court finds the analysis in Canadian St. Regis persuasive and, based on the facts presented here, concludes that the nature of Plaintiff's claims brings this action within the rubric of Rule 23(b)(1)(B).

b. Rule 23(b)(2)

Having found that Rule 26(b)(1)(B) is applicable to the case at bar, this Court need not address certification of the defendant class pursuant to Rule 23(b)(2).

c. Fed.R.Civ.P. 23(b)(3)

The Court notes that Plaintiff's First Amended Complaint also includes claims for money damages based upon allegations of trespass. In the proposed Second Amended Complaint, however, these claims are alleged against a Fed.R.Civ.P. 23(b)(3) class. The framework proposed by Movants in the pending Motion would defer certification of a Rule 23(b)(3) class on damage issues until the initial class issues are determined.

Rule 23(c)(4)(A) permits a class action to be brought or maintained with respect to particular issues. Indeed,

[t]he theory of Rule 23(c)(4)(A) is that the advantages and economies of adjudicating issues that are common to the entire class on a representative basis should be secured even though other issues in the case may have to be litigated separately by each class member. Accordingly, even if only one common issue can be identified as appropriate for class action treatment, that is enough to justify the application of the provision as long as the other Rule 23 requirements have been met. [FN24]

FN24. 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d, § 1790, at 271 (1986).

Because it is unnecessary to address issues surrounding such a class at this time in order to resolve the central issues of land ownership, and because there may be additional issues concerning a Rule 23(b)(3) class that require closer examination once initial issues are resolved, the Court recommends accepting Movants' proposed framework and deferring certification of a Rule 23(b)(3) class on damage issues until the initial class issues are determined. Accordingly, the Court recommends proceeding under Rule 23(c)(4)(A) and certifying a defendant class only with respect to the injunctive anddeclaratory aspects of the case.

4. Notice Requirements

"To comport with due process, notice must be fashioned which is 'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." ' [FN25] "There is also an important interest in settling disputes, and Mullane recognizes that '[a] construction of the Due Process Clause which would place an impossible or impractical obstacles in the way would not be justified." ' [FN26]

FN25. Canadian St. Regis, 97 F.R.D. at 461 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)).

FN26. Id. (citing Mullane, 339 U.S. at 313-14).

*6 Notably, a Rule 23(b)(3) class action is subject to the more demanding notice requirements of Rule 23(c)(2), which often requires individual notice to all class members who can be identified. In a Rule 23(b)(1)(B) class action such as this one, however, the more flexible notice provisions of Rule 23(d)(2) apply. "Such notice, however, must still satisfy the Mullane standard." [FN27]

FN27. Id.

In this case, the Court believes that individual notice to the owners of the subject lands sent by first class mail, coupled with publication notice, will satisfy the due process right to notice of all those with an interest in the subject lands, including those with derivative interests. "A combination of factors makes such notice 'reasonably calculated ... to apprise interested parties of the pendency of the action." ' [FN28]

FN28. Id. (quoting Mullane, 339 U.S. at 314).

The reasons this Court believes the referenced combination of factors satisfies the Mullane standard are the same as those set forth by the Canadian St. Regis court:

First, individualized notice to landowners will be apt to reach many of the individuals or institutions with derivative interests as well as title ownership. Second, individually notified landowners may be expected in many cases to convey their notice to those with derivative interests in their property, either formally--by virtue of their security agreements--or informally. Third, because of the relatively small size of the claim area and the large amount of publicity surrounding this lawsuit, at least some of those with derivative interests may be expected to inquire of the title holder about the status of their interest in view of the suit. Fourth, there is publication notice which, though not particularly effective in the ordinary case, should in this case generate enough interest and attention to be exceptionally effective in reaching interested persons not otherwise notified. [FN29]

FN29. Id. at 461-62.

The Court will order individual notice to the owners of the subject lands sent by first class mail, as well as notice by publication.

E. Recommendation

The undersigned Magistrate Judge recommends the following:

(1) The Joint Motion for Certification of a Defendants' Class (doc. 109-1) should be granted to the extent that

(a) the Court should proceed under Rule 23(c)(4)(A) to certify a defendant class with respect to the injunctive and declaratory aspects of the case; and

(b) the issue of certification of a Rule 23(b)(3) class on damage issues should be deferred until initial class issues are determined.

(2) Defendant Unified Government, individually and on behalf of all other persons who claim an interest in any portion of the subject land should be the designated class representative for the injunctive and declaratory aspects of the case;

(3) The injunctive and declaratory counts of this action should dismissed pursuant to Fed.R.Civ.P. 41(a) with respect to all named defendants other than the designated class representative, provided, that such other named defendants shall be fully bound, as members of the defendant class, as to all issues concluded by the judgment in the class action portion of this case.

*7 (4) Commencing within ten (10) days of entry of this Order, Movants

(a) should cause to be published three times, once each in three consecutive weeks, in the Wyandotte County Echo, the Kansas City Kansan and the Wyandotte County edition of the Kansas City Star; and

(b) should cause to be posted in a conspicuous place in the offices where Wyandotte County deeds are recorded in Wyandotte County; and

(c) should cause to be mailed by first class regular mail, to members of the defendant class listed upon the most current published rolls of persons assessed as owners of the real estate at issue in this lawsuit the following form of Notice bearing the caption of this action:

TO ALL PERSONS INTERESTED IN THIS LAW SUIT

This lawsuit involves claims for land located in Wyandotte County, Kansas. The Court has decided that parts of this lawsuit will be certified as a defendant class action. This means that all individuals and entities--with the exception of the United States and the State of Kansas--who claim an interest in any portion of those sections of land at issue (the "Claimed Lands") will be part of a class. The Claimed Lands are identified in paragraphs 27 and 30 of the Second Amended Complaint (Sections 27-10-25, 34-10-25, 3-11-25, 26-10-25, 35-10-25 and 2-11-25 on the official tax maps of Wyandotte County, Kansas) and are shown on the attached map.

If you claim that you either own or have a right to possess any of the "Claimed Lands," the class will be certified only for the purpose of determining who has the right to own and/or possess the land (the "injunctive and declaratory portions of the lawsuit"), as well as potential procedural and substantive issues relating to the claims that may be raised. In this lawsuit, Plaintiff Wyandotte Nation wants the Court to determine that it has a right to the Claimed Lands. Plaintiff asserts it acquired the lands at issue by Treaty ratified in 1848, and that it still holds legal title to the lands.

If you are a member of the defendant class, you will be represented by the Unified Government of Wyandotte County/Kansas City, Kansas ("Unified Government"), which is represented by Mark D. Hinderks of the law firm Stinson Morrison Hecker LLP, 11181 Overbrook Road, Leawood, Kansas 66211 (telephone number 913/451-8600). Plaintiff is represented by Sam Colville of the lawfirm Holman Hansen Colville & Coates, P.C., 10740 Nall Avenue, Suite 200, Overland Park, Kansas 66211 (telephone number 913/648-7272).

Whether the money damages portion of this lawsuit will be certified as a defendant class action is an issue that will be put off until the land ownership has been determined.

IF YOU ARE A MEMBER OF THE DEFENDANT CLASS AS DESCRIBED ABOVE AND YOU WANT TO OBJECT TO THIS CASE BEING A CLASS ACTION, OR YOU WANT TO OBJECT TO THE UNIFIED GOVERNMENT AND ITS ATTORNEYS BEING YOUR REPRESENTATIVE OR YOU WANT TO APPEAR INDIVIDUALLY ON THE QUESTION OF WHO OWNS THE CLAIMED LAND, YOU MUST, ON OR BEFORE [ date to be determined by the district court judge ] FILE THOSE OBJECTIONS OR REQUESTS TO APPEAR, AND YOUR REASONS, OR THOSE OBJECTIONS OR REQUESTS SHALL BE DEEMED WAIVED. COPIES OF OBJECTIONS ALSO MUST BE SERVED ON COUNSEL FOR PLAINTIFF AND COUNSEL FOR THE REPRESENTATIVE DEFENDANT.

*8 Movants should certify to the Court the names of the persons to whom such notice is mailed, the date of such notice, the name of the newspapers in which such notice has been posted, and the dates of posting. The envelopes forwarding the above notice by mailing should have the following recital affixed in large capital letters:

ATTENTION: THE ENCLOSED NOTIFICATION CONCERNS YOUR LEGAL RIGHT TO YOUR PROPERTY. IT SHOULD BE READ CAREFULLY.

(5) That pending receipt of responses to the notice called for in section (4), it generally would be undesirable to require responsive pleadings to the First or Second Amended Complaint, and it should be ordered that the time within which the representative Defendant must move, answer or otherwise plead to the Second Amended Complaint or bring cross or third-party actions should be extended until further order of the Court.

Respectfully submitted.

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