The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on the Plaintiffs' Motion for Class Certification (d/e 11) (Motion). The Plaintiffs Melvin and Patricia Genenbacher filed this action on February 10, 2006, as a class action in the Illinois Circuit Court of the Eighth Judicial Circuit, Adams County, Illinois. They alleged that Defendant CenturyTel Fiber Company II, LLC d/b/a/ LightCore, a CenturyTel Company (LightCore), or its predecessor Digital Teleport, Inc. (DTI), illegally installed a network of fiber optic telecommunication cables (Network) under their property and the property of the other putative class members without securing the proper authority to do so. They asserted claims for trespass, unjust enrichment, and declaratory relief for themselves and the other putative class members. Notice of Removal (d/e 1), Exhibit A, Class Action Complaint (Complaint). LightCore then removed the action to this Court pursuant to the Class Action Fairness Act of 2005 (CAFA). Notice of Removal; 28 U.S.C. §§ 1332(d) and 1453. This Court directed the Genenbachers to file a Motion for Class Certification so that the issue of certification could be addressed at an early practicable time in the proceeding. Text Order entered November 28, 2006; Fed. R. Civ. P. 23(c)(1)(A). In response, the Genenbachers filed the Motion. Neither side has asked for an evidentiary hearing on the issue of class certification. After careful review, the Court denies class certification because the class definition is improper and because common questions of law and fact do not predominate over individual issues.
DTI was formed in 1989 to construct and operate the Network over a five-state area in the central United States, including Illinois. According to the Genenbachers, DTI placed hundreds of miles of cable across Illinois without first securing permission of the landowners. The Genenbachers allege that DTI frequently may have contracted with public utilities such as SBC/Ameritech to use their easements to bury fiber optic cable for the Network. The Genenbachers allege that these utilities did not have the authority to grant permission to install the Network in their easements. Complaint, ¶¶ 16-19.
In 2000, DTI attempted to negotiate easements for the Network that it had already installed. DTI hired a company call Linderlake Corporation to investigate the title of property along DTI's route from Springfield, Illinois, to the Indiana border. Memorandum of Law in Support of Plaintiffs' Motion for Class Certification (d/e 12), Exhibit A, Affidavit of Danny L Cossich (Cossich Affidavit), ¶ 2. In 2001, however, DTI terminated its relationship with Linderlake Corporation. Id., ¶¶ 3-7.
In 2003, DTI was in bankruptcy. CenturyTel, Inc. (CenturyTel), bought the assets of DTI in a bankruptcy sale free and clear of all liens and claims. Memorandum in Support of Defendant CenturyTel Fiber Company II, LLC's Motion to Dismiss (d/e 7) (LightCore Memorandum to Dismiss), Exhibit 1, Order Approving Sale; 11 U.S.C. § 363. CenturyTel then formed LightCore to operate the Network. The Genenbachers allege that LightCore continues to wrongfully maintain and operate the Network in violation of the rights of the landowners in Illinois.
The Genenbachers bring three claims against LightCore. Counts I and II assert claims for damages for trespass and unjust enrichment. Count III asks for a declaratory judgment that LightCore has no valid easement or other right to occupy the putative class members' land and cannot exercise any dominion or control over the putative class members' land without the owners' consent or a decree of condemnation.
The Genenbachers ask the Court to certify the following class: All owners and former property owners in the State of Illinois whose land was not and is not subject to any easement for the purpose of operating a fiber optic telecommunications network but whose land CenturyTel Fiber Company II, LLC and or Digital Teleport, Inc. and their subsidiaries and affiliates have entered to install, maintain, or operate a fiber optic or other telecommunications cable network without obtaining the consent of the owner of the land.
Motion, ¶ 1. In order to certify a class action, the Genenbachers must propose a class over which the Court can enter a judgment that is enforceable, whether favorable or unfavorable, with respect to the members of the class. Fed. R. Civ. P. 23(c)(3). The Genenbachers must also show that the proposed class meets all of the requirements of Federal Rule of Civil Procedure 23(a) and the requirements in one of the three subsections of Rule 23(b). Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613-14 (1997); Fed. R. Civ. P. 23(a) & (b).
For purposes of determining whether class certification is appropriate, the Court should not assume the allegations in the Complaint are true. Rather, the evidence presented must show that the factual and legal requirements for class certification have been met. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001). The Genenbachers have the burden of establishing that these requirements have been met. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993).
The proposed class fails to meet the requirements of Rule 23(c)(3) because the Court cannot enter an adverse judgment that is enforceable against at least some of the proposed class members. The proposed class is limited to those property owners and former owners, of property that is not subject to an easement for installation and maintenance of fiber optic telecommunication cable, who did not consent to DTI's or LightCore's installation and maintenance of the Network. If LightCore proves that: (1) a particular parcel is subject to a valid easement, or (2) the property owner of a particular parcel consented to LightCore's use of that parcel, then LightCore should be entitled to a judgment in its favor with respect to the owners of that particular parcel. The Court, however, could not enter judgment against that particular owner because the owner would no longer fit the class definition, quoted above. This type of class definition is called a "fail safe" class because the class definition precludes the possibility of an adverse judgment against class members; the class members either win or are not in the class. Ostler v. Level 3 Communications, Inc., 2002 WL 31040337 (S. D. Ind. August 27, 2002). The proposed class definition, thus, is improper because the Court cannot enter an adverse judgment against the class. Id.; Fed. R. Civ. P. 23(c)(3). The Motion must be rejected on these grounds alone.
The Genenbachers have also failed to show that the proposed class meets the requirements of Rule 23(b).*fn1 The Genenbachers must show that the class claims meet the requirements of one of the three subsections of Rule 23(b). LightCore argues that the claims must meet the requirements of Rule 23(b)(3). Rule 23(b)(3) requires a showing that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. If Rule 23(b)(3) applies, class members must be given notice and an opportunity to opt out of participation in the class action. Fed. R. Civ. P. 23(b)(3) & (c)(2)(B).
The Genenbachers agree that Rule 23(b)(3) applies to the damage claims for trespass and unjust enrichment, but argue that Rule 23(b)(2) applies to the declaratory judgment claim. Rule 23(b)(2) applies when the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate injunctive or declaratory relief with respect to the class as a whole. The right to the equitable or declaratory relief in these types of cases is generally dependant on the actions of the party opposing the class rather than the class members, and the impact of the relief is generally also imposed on the party opposing the class rather than the ...