The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Susan Srail, Jeffrey Srail, Janeen Brzeczek, and Ronald Brzeczek have sued the Village of Lisle ("Lisle"), individually and as parents and next friends of their minor children Ryan Srail, Derek Srail, and Hannah Brzeczek. Plaintiffs allege that Lisle violated their rights under the United States Constitution and Illinois common law in making decisions concerning the water system that supplies the area where they live and their children attend school.*fn1 They have moved to certify two classes of plaintiffs pursuant to Federal Rule of Civil Procedure 23(b)(3). Both Lisle and former third-party defendant Illinois-American Water Company ("IAWC") oppose class certification.*fn2 On February 4, 2008, the Court granted plaintiffs' motion as to one of the proposed classes and certified a second class consisting of residents of the subdivision where plaintiffs live. The Court deferred consideration of whether to certify a class relating to a separate subdivision until after plaintiffs identified one or more appropriate class representatives from that subdivision. Since that time, plaintiffs have informed the Court that they have elected not to amend their complaint to add residents from that subdivision as plaintiffs.
Lisle and IAWC each moved the Court to reconsider its order on plaintiffs' motion for class certification. After reconsidering the arguments of all parties, both in the initial briefs on class certification and in the briefs on the present motion, the Court withdraws its memorandum opinion and order of February 4, 2008 and issues the following opinion. For the reasons set forth below, the Court denies plaintiffs' motion for class certification as to one of the proposed classes; as to the other proposed class, the Court certifies a class consisting of residents of the subdivision where the named plaintiffs live. Because plaintiffs have elected not to identify an appropriate class representative from a second, separate subdivision, the Court dismisses without prejudice the claims of the residents of that subdivision. Because the matter was previously disputed, however, the Court will still explain why plaintiffs cannot adequately represent the residents of the second subdivision.
Plaintiffs have asserted claims relating to the water system serving Oak View, the Lisle subdivision in which the Srails and Brzeczeks live, and Meadows, a subdivision in unincorporated Lisle, as well as Lisle Junior High School and Schiesher Elementary School. Plaintiffs allege that the system does not deliver adequate water pressure to fight fires in either of the subdivisions or in the area of the two schools, endangering plaintiffs, the other residents of Oak View and Meadows, and the children attending the two schools.*fn3
Although Lisle has a municipally-owned water system, that system does not serve the residents of Oak View and Meadows or the two schools. Instead, IAWC pays Lisle to "wheel" (i.e., transport) Lake Michigan water that IAWC purchases from the DuPage Water Commission through Lisle's own municipal system to IAWC's intake. IAWC then transmits and supplies that water to Oak View and Meadows and to the schools.
Plaintiffs filed this lawsuit on May 10, 2007. In their third amended complaint, filed on October 10, 2007, plaintiffs contend that Lisle's refusal to supply water to the schools and the subdivisions at adequate firefighting pressure and volume, despite supplying water to other, similarly situated persons and entities within Lisle and its unincorporated areas, deprived plaintiffs, other residents of Oak View and Meadows, and children attending the schools of their rights under the Equal Protection Clause. Plaintiffs make a further claim against Lisle for common law negligence for failing to connect Oak View and Meadows to the municipal water system.
Plaintiffs seek certification of two separate classes. The proposed Schoolchildren Class consists of parents of children who attended the two schools in the school year beginning August 22, 2007. The Residential Class plaintiffs propose consists of individuals who own or reside in residential property in Oak View or Meadows and whose water systems are operated by IAWC.
Lisle and IAWC argue as a preliminary matter that the Court should deny plaintiffs' motion to certify the Schoolchildren Class for lack of standing. They cite Payton v. County of Kane, 308 F.3d 673 (7th Cir. 2002), for the proposition that a class cannot be certified if the named plaintiffs or the purported class lacks standing. Id. at 680. In that case, however, the Court preceded its standing analysis with an analysis of the question of class certification, "mindful of the Supreme Court's directive to consider issues of class certification prior to issues of standing." Id. (citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 831 (1999)). The Court will therefore defer until later in this decision consideration of the issue of standing regarding the Schoolchildren Class.
To prevail on a motion for class certification, a plaintiff must satisfy all of the requirements of Federal Rule of Civil Procedure 23(a) and the requirements of one of the subsections of Rule 23(b). Rule 23(a) sets out four threshold requirements for plaintiffs seeking class certification: numerosity (the class must be so large that "joinder of all members is impracticable"); commonality (there must be common questions of law or fact); typicality (the representatives' claims must be "typical" of those of the class); and adequacy of representation (the representatives must fairly and adequately protect the interests of the class"). Fed. R. Civ. P. 23(a)(1)-(4); see Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998).
Plaintiffs seek certification under Rule 23(b)(3), which requires that "questions of law or fact common to the members of the class predominate over any question affecting only individual members," and that a class action be "superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3); see Amchem Prods. v. Windsor, 521 U.S. 591, 615 (1997). Having moved to certify the classes, plaintiffs bear "the burden of demonstrating that [class] certification is appropriate." Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993).
1. Rule 23(a) Requirements
Rule 23(a)(1) requires that a class be so numerous that joinder of all its members is impracticable. Fed. R. Civ. P. 23(a)(1). Although courts cannot rely on pure speculation as to the size of the class, plaintiffs need not "specify the exact number of persons in the class." Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989). The proposed Schoolchildren Class consists of the Srails, the Brzeczeks, and all other parents of children attending either or both of the schools in the school year beginning in fall 2007. Plaintiffs allege that approximately 900 children attend the two schools. Plaintiffs further allege that approximately 400 families reside in Oak View and 500 families reside in Meadows. Lisle does not dispute these figures, nor does it contend that plaintiffs do not satisfy the numerosity requirement for either proposed class. Plaintiffs have demonstrated that the members of the proposed Schoolchildren Class are sufficiently numerous that their joinder as individual parties would be impracticable. In addition, the number of families residing in Oak View is sufficiently numerous, even without the Meadows families, that their joinder as plaintiffs would be impracticable. Thus, a Residential Class consisting of the Oak View residents satisfies the numerosity requirement of rule 23(a)(1).
Rule 23(a)(2) requires the existence of questions of law or fact common to the class. "A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2)." Keele, 149 F.3d at 594. A common set of operative facts is ordinarily present when the defendants are claimed to "have engaged in standardized conduct towards members of the proposed class." Id.
Plaintiffs' claims present questions of both law and fact common to all class members. Plaintiffs contend that Lisle engaged in a common course of conduct with respect to the entire water system serving Oak View, Meadows, and the schools, and that Lisle's conduct has harmed all members of both proposed classes. The legal issue of whether Lisle's standardized conduct constitutes an equal protection violation or is actionable under state law is likewise common to all proposed class members. Lisle does not dispute that plaintiffs can satisfy the commonality requirement for either proposed class. The Court finds that both the proposed Schoolchildren Class and a Residential Class consisting of Oak View residents meet the commonality requirement.
The typicality requirement of Rule 23(a)(3), which is closely related to the commonality requirement of Rule 23(a)(2), is met if the class representatives' claims are typical of those of the class. The named plaintiffs' claims are typical if they "[arise] from the same event or course of conduct that gives rise to the claims of other class members and [their] claims are based on the same legal theory." De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (citations and internal quotation omitted). Factual distinctions between the claims of the named and represented plaintiffs do not defeat typicality. Retired Chicago Police Ass'n, 7 F.3d at 597. The claims of the named plaintiffs must, however, have "the same essential characteristics" as the claims of the proposed class. See id.
Lisle does not dispute that the Srails and Brzeczeks can satisfy the typicality requirement for the proposed Schoolchildren Class. As parents of children attending the two schools, their claims are identical to those of other parents of schoolchildren, in that they arise from the same course of conduct (Lisle's alleged failure to ensure that the schools have adequate water pressure and volume to fight fires). Furthermore, their claims are based on the same legal theory (deprivation of rights under the Equal Protection Clause). The Court concludes that the named plaintiffs satisfy Rule 23(a)(3)'s typicality requirement for the proposed Schoolchildren Class.
Lisle argues that the named plaintiffs' claims are not typical of those of the Residential Class. The Srails and Brzeczeks live in Oak View, which is within the village limits of Lisle, but over half of the members of the proposed Residential Class reside in Meadows, which is in unincorporated Lisle. Lisle contends that for this reason, the named plaintiffs' claims do not share the same "essential characteristics" as those of Meadows residents. Lisle/IAWC Resp. at 11.
First, Lisle contends that different legal standards apply to Lisle's decisions not to extend utility service to, respectively, Oak View and Meadows. It argues that although Lisle's actions are reviewed under a "rational basis" test with respect to the claims of Oak View residents, its actions with respect to Meadows residents should be governed by a different standard. Lisle cites Schroeder v. City of Grayville, 166 Ill. App. 3d 814, 817, 520 N.E.2d 1032, 1034 (1988), for the proposition that a municipality has no obligation to extend service to an area outside its borders that it has not elected to serve, absent a contractual undertaking to do so, and that it is only prohibited from discriminating unreasonably with respect to rates or services within an area when, Lisle argues, it "has elected to extend utility service to a given unincorporated area." Resp. at 11 n.6. Assuming that Schroeder is properly read as Lisle argues, a question the Court need not address at this juncture, it does not undercut a finding of typicality. Plaintiffs' claim is that they were treated differently from other incorporated and unincorporated areas of Lisle, and in this regard their claims have the same essential characteristics of those of the other class members.
Second, Lisle argues that there are significant factual distinctions between the claims of Oak View residents like the Srails and Brzeczeks and those of Meadows residents. For example, Lisle contends that under Illinois statute, before a municipality may provide water service to an area outside its corporate limits, a majority of that area's property owners must petition the municipality for service. Because the Srails and Brzeczeks all live in Oak View, Lisle points out, they faced no such requirement. And even with a non-residents' petition in hand, Lisle contends, a municipality retains discretion in deciding whether to provide water service outside its corporate limits. Again, however, given plaintiffs' claims of differential treatment as compared with others similarly situated, this argument does not undermine a finding of typicality.
Lisle also contends that the named representatives' claims are atypical of the claims of Meadows residents because Lisle requires persons living in unincorporated areas to sign pre-annexation agreements (providing that the property will be annexed once the corporate limits of Lisle are contiguous to it) before it will supply services to them. They argue that certifying the proposed Residential Class would therefore "almost certainly foist annexation upon residents of the Meadows" along with "its attendant cost of municipal taxes and other related charges." Lisle/IAWC Resp. at 12. Whether Meadows residents wish to be annexed, Lisle contends, is an issue unique to those residents that the named plaintiffs do not face. The flaw in this argument is that because of the application of Rule 23(b)(3), the only provision under which plaintiffs seek class certification, no Meadows resident would be compelled against his or her will to be a party to a lawsuit as a result of which he or she could be forced to connect to Lisle's municipal water system or be annexed to Lisle. Because of Rule 23(b)(3)'s notice requirements, every proposed class member will have the ability to opt out of any class that may be certified. Proper disclosure in the notice that must be sent to class members can and will ensure that all are fully informed of the implications of class membership. In any event, the record at present reflects that non-residents are not required to sign pre-annexation agreements until they actually choose to connect to the municipal water supply. See Lisle/IAWC Mem. Ex. 25, Dep. of Joseph Broda at 201:20-23.
The claims of the named plaintiffs and the claims of Residential Class members in both Oak View and Meadows involve the same course of conduct--Lisle's alleged failure to connect them to the municipal water supply or otherwise provide them with a water supply adequate to fight fires. In addition, the claims of the named plaintiffs are based on the same underlying legal theories (negligence and violation of the Equal Protection Clause), whether they live in Oak View or Meadows. At present, it does not appear to the Court that matters unique to the claims of the Meadows residents will become a significant focus of the litigation.
That said, the differences between Oak View and Meadows residents do give the Court concern regarding the appropriateness of having the case proceed with a unitary residential class as opposed to two separate classes. The Court will discuss this point further in the following section of this decision, concerning adequacy of representation, a point that sometimes overlaps with the issue of typicality. See Amchem Prods., 521 U.S. at 626 n.20 ("The adequacy-of-representation requirement 'tend[s] to merge' with the commonality and typicality criteria of Rule 23(a), which 'serve as guideposts for determining whether . . . maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.'") (quoting Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982)). The Court concludes that the named plaintiffs' claims are typical of those of the Schoolchildren Class and of those of the part of the proposed Residential Class consisting of Oak View residents. The matter is much closer with regard to Meadows residents who are part of the proposed class, a point that the Court need not decide definitively in light of its conclusion in the next section that the named representatives do not adequately represent Meadows residents.
d. Adequacy of Representation
Rule 23(a)(4) requires that the named plaintiffs fairly and adequately represent the class as a whole. See Fed. R. Civ. P. 23(a)(4). To evaluate whether plaintiffs have fulfilled this criterion, the Court looks at both "'the adequacy of the named plaintiff's counsel, and the adequacy of representation provided in protecting the different, separate, and distinct interest' of the class members." Retired Chicago Police Ass'n, 7 F.3d at 598 (citing Sec'y of Labor v. Fitzsimmons, 805 F.2d 682, 697 (7th Cir. 1986)). A named plaintiff is generally considered to be adequate so long as his or her claims neither conflict with nor are antagonistic to those of other class members. See Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992).
Lisle does not dispute plaintiffs' contention that their lawyers are adequate because they have substantial class action experience, have been appointed class counsel in several major cases, and have obtained multi-million dollar recoveries for classes they have represented. The Court has no doubt that plaintiffs' counsel will be able to litigate the case fairly and adequately on behalf of both proposed classes.
Lisle does dispute, however, that the Srails and Brzeczeks are adequate representatives for either class. First, Lisle contends that plaintiffs have not demonstrated that absent class members desire the injunctive relief plaintiffs seek. To the contrary, Lisle contends, many absent class members may not want to be connected to Lisle's municipal water system or receive a new water system. In June 2006, Lisle offered the schools and nineteen Oak View homeowners the opportunity to pay to connect to the Lisle water mains and be removed from IAWC's system. Out of the nineteen homeowners, only one accepted the offer, which Lisle regards as evidence that the rest did not wish to switch water providers. Lisle disputes plaintiffs' contention that when the homeowners were given this option, they were unaware of the alleged inability of IAWC's water system to fight fires. Rather, Lisle argues, allegations regarding the water system's firefighting insufficiency were already available to the public by that time. It contends, for example, that in a public meeting on January 30, 2006, Mrs. Srail and other members of Lisle's Water Task Force presented findings on "health and safety" to the Village Board of Trustees. Opp. Ex. 14, 1/30/06 Meeting Minutes. Lisle further contends that the "health and safety" section of the Task Force's ensuing report was made available to the public on Lisle's website and that it quoted Lisle Fire Chief Thomas K. Freeman as saying "the available water for firefighting is woefully inadequate." Opp. Ex. 8, Task Force Report § 3.1.
Plaintiffs respond that the Task Force was created to investigate high water and sewer prices, not fire protection issues and that its report made only a "modest reference" to fire protection concerns limited to an area near the junior high school. Pl. Resp. to Surreply at 3. Indeed, out of a twenty-page report, only six paragraphs are devoted to "Health and Safety." Opp. Ex. 8 at 8-9. And those six paragraphs are not limited to a discussion of fire protection; included in the same section is a discussion of discolored water and unsafe drinking water. Id. at 8. Plaintiffs also note that Lisle has offered nothing to suggest that any of the families who rejected Lisle's offer to connect them to the municipal water service were aware of or received the Task Force's report.
Lisle cites as further evidence of inadequate class representation the fact that "only 162 of the 403 homes in Oak View" that Mrs. Srail contacted as part of a 2006 letter-writing campaign asking IAWC to discontinue water service signed such letters. Lisle/IAWC Resp. at 14. Lisle contends that all of this evidence "strongly suggests that many--and perhaps most--residents of Oak View and Meadows may not want" the injunctive relief plaintiffs seek. Id. at 13.
The Court cannot draw such an inference based on the present record. The fact that eighteen families in the proposed Residential Class decided not to accept an offer to pay thousands of dollars to connect to Lisle's water system, when they may well have been entirely unaware of the core allegations underlying this suit, does not suggest that the injunctive relief plaintiffs seek would be unacceptable to most of the class, let alone that the plaintiffs are inadequate class representatives. Indeed, the evidence plaintiffs have provided leads the Court to the opposite conclusion. Contrary to Lisle's argument, the results of Mrs. Srail's letter-writing campaign demonstrate significant support for plaintiffs' desired relief. First of all, positive responses from 162 homes is a significant number, especially in view of the fact that the letter Mrs. Srail sent concerned only ownership of the water system and made no mention of fire safety issues. Furthermore, there is every reason to believe that even more homeowners would have sent in favorable survey responses had the letter-writing campaign been allowed to continue; once Mrs. Srail informed Lisle at a board meeting that she had received 162 favorable responses, Lisle directed her to cease her survey work and hire her own attorney if she wished to continue to pursue connection to the Lisle water system. See Pl. Reply at 8. And in any case, even if some residents were unconcerned about the fire safety issues plaintiffs allege, their lack of interest in injunctive relief would "'. . . not [be] relevant . . . because a judge may not refuse to certify a class simply because some class members may prefer to leave the violation of their rights unremedied.'" Hispanics United of DuPage County v. Village of Addison, 160 F.R.D. 681, 689 n.9 (N.D. Ill. 1995) (quoting Martino v. McDonald's Sys., Inc., 81 F.R.D. 81, 85 (N.D. Ill. 1979)). In addition, Lisle seems to ignore the fact that plaintiffs are seeking not only injunctive relief, but damages compensating residents for the difference between what plaintiffs and class members have paid IAWC and what customers of Lisle's municipal water system pay Lisle. Lisle, citing no precedent, argues that plaintiffs must prove that class members want monetary relief. See Lisle's Mot. for Reconsid. at 6. But plaintiffs have already ...