NGUYEN THI NGA, et al., Plaintiffs,
v.
DAEWOOSA SAMOA, LTD., et al., Defendants.
High Court of
Trial Division
CA No. 133-99
CA No. 68-99
April 11, 2000
[1] Under T.C.R.C.P. 23(a), there are four
prerequisites to a class action: (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.
[2] Ability to identify the plaintiffs is not the
criterion used to determine whether plaintiffs have met the numerosity
requirement for class action; rather the court looks at the practicability of joinder, and to whether hearing the arguments as to a large
number of individual plaintiffs would be impractical and would severely strain
the limited resources of the court system.
[3] Although some allegations of numerous plaintiffs
may differ, where there are ample commonalities in their claims they may be
granted class action status.
[4] Under T.C.R.C.P. 23(b)(3),
the court may certify a class action when it finds 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,
and allows class certification when the plaintiffs seek primarily monetary or
injunctive relief.
[5] In determining whether common questions
predominate for class action certification, the court makes a pragmatic
assessment of whether common issues of both law and fact predominate in the
entire action, and may consider whether other potential plaintiffs have shown a
desire to have claims adjudicated separately. [4ASR3d136]
[6] Under T.C.R.C.P. 23(b)(3), a class action must be
superior to other methods of proceeding, and it is so when individual members
are likely unable or unwilling to bring an action on their own, as when many of
the plaintiffs do not speak English and have little understanding of the legal
system.
[7] Under T.C.R.C.P. 23(b)(1)(A)
class action is appropriate if the prosecution of separate actions would create
a risk of inconsistent or varying adjudications as to individual class members
and establish incompatible standards of conduct for the party opposing the
class.
Before
Counsel:
For Nguyen Plaintiffs, Virginia L. Sudbury and Christa Lin
For Shunzhe
Plaintiffs, Afoa L. Su`esu`e
Lutu
For Defendants, Malaetasi
M. Togafau
ORDER CONSOLIDATING CASES AND
CERTIFYING CLASS ACTION
I.
Consolidation of Actions
On March 28, 2000, plaintiffs in Shunzhe
et al. v. Daewoosa Samoa, Ltd., et al., CA No.
68-99, (“Shunzhe plaintiffs”) filed a
motion to consolidate their action with the action by plaintiffs in Nguyen et
al. v. Daewoosa Samoa, Ltd., et al., CA
No. 133-99 (“Nguyen plaintiffs”).
At a hearing on March 31, 2000, with counsel for the Nguyen plaintiffs
and defendants present, the Court orally granted this motion. Finding good cause shown, we affirm our oral
pronouncement granting the Shunzhe plaintiffs’
motion to consolidate their action with the Nguyen plaintiffs’ action.
II.
Certification of Class Action
A. Background
On January 27, 2000, as part of their request to amend
the amended complaint, the Nguyen plaintiffs requested class action
certification of all Vietnamese workers employed by defendant Daewoosa Samoa, Ltd. (“Daewoosa”). We issued an order on February 22, 2000,
amended on February 24, 2000, denying class action certification for claims
under the Fair Labor Standards Act and requiring additional briefing on
certification of the other claims.
The order laid out the prerequisites for a class
action required by T.C.R.C.P. 23(a). For
clarity, we repeat that discussion here, infra part [4ASR3d137] II.B., albeit with some modifications because the class
of workers for which the Court grants certification includes all garment
workers rather than just Vietnamese workers, see infra at 6, and
because the Court has consolidated this action with CA No. 68-99, see supra at
1, which involves a group of similarly situated Chinese workers.
B. Prerequisites
to a Class Action
[1-2] There are four prerequisites to a class action:
(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. T.C.R.C.P. 23(a).
Defendants have objected to class certification on the basis of the first
requirement, arguing that plaintiffs are not too numerous to identify. However,
ability to identify the plaintiffs is not the criterion used to determine
whether plaintiffs have met the standard in Rule 23(a)(1).
Instead, the Court looks at the practicability of joinder. There are presently at least 130 named
workers joined in the two actions.
Hearing the arguments regarding this number of individual plaintiffs
would be impractical at best and would severely strain the limited resources of
the court system. Plaintiffs meet the numerosity criterion for certification as a class.
[3] There is
also no impediment to a class action under the other three prerequisites. There are many factual and legal issues
common to the class. To cite a few
examples, all plaintiffs allege that defendants have held all of plaintiffs’
passports and have required payment of an illegal settlement check as a
prerequisite to working at Daewoosa. All plaintiffs were brought to the Territory
to live and work on the Daewoosa compound, and all
have been subject to Daewoosa’s rules regarding such
issues as when and whether plaintiffs may leave both their rooms and the
compound.
Some allegations differ. For example, the allegation of a due process
violation by sending plaintiffs out of
C. Certification
of Class Action under T.C.R.C.P. 23(b)(3)
[4] There
are several types of class actions, and each type is maintainable [4ASR3d138] in a different set of
circumstances. We find that
certification under T.C.R.C.P. 23(b)(3) is appropriate
in this case. The court may certify a
class action under T.C.R.C.P. 23(b)(3) when it finds 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.” Unlike the other types of
class actions, certification is allowed under this section regardless of
whether plaintiffs seek primarily monetary or injunctive relief. 5 James W. Moore et al., Moore’s
Federal Practice ¶ 23.45 [1] (2d ed. 1985). In the present case, plaintiffs’ claims for
monetary relief are a significant part of their complaint.
[5] In
determining whether common questions predominate, courts have used varying
formulations. See Edgington v. R.G. Dickenson and Co., 139
F.R.D. 183, 190 (D. Kan., 1991) (common questions should be central to all
claims); Doe v. Guardian Life Ins. Co., 145 F.R.D. 466,
476 (N.D. Ill. 1992) (mutual interest in resolving common questions must be
greater than individual interests). The
common theme, however, is that the court make a pragmatic assessment of whether
common issues predominate in the entire action.
As discussed above the prerequisites to class certification, there are
many commonalities in questions of both law and fact. The claims are highly similar, and other
potential plaintiffs have not shown a desire to have claims adjudicated
separately. Despite the likelihood of
individual damage issues if plaintiffs are successful, common questions
predominate as to liability, providing sufficient predominance of common
questions to make certification appropriate. See Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th
Cir. 1988) (certification appropriate despite individual damages issues).
[6] Under
T.C.R.C.P. 23(b)(3), a class action must also be
superior to other methods of proceeding.
A class action is superior when individual members are likely unable or
unwilling to bring an action on their own. Rodriguez v.
Carlson, 166 F.R.D. 480, 482 (E.D. Wash. 1996) (class action superior for
migrant workers who did not speak English and had little understanding of the
American legal system). In the
present case, individual actions and test cases are not feasible, not only
because of the large number of plaintiffs, but also due to the fact that many
of them do not speak English and would therefore have difficulty pursuing their
claims.
[7] A
T.C.R.C.P. 23(b)(3) class action is more appropriate
under the present circumstances than the other types of class actions. Rule 23(b)(1)
defines two types of class actions, one under Rule 23(b)(1)(A) and one under
Rule 23(b)(1)(B). A class action is
maintainable under Rule 23(b)(1)(A) if the prosecution
of separate actions would create a risk of “inconsistent or varying
adjudications with respect to individual [4ASR3d139]
members of the class which would establish incompatible standards of
conduct for the party opposing the class.”
There is no indication that certification would result in incompatible
standards of conduct, meaning that the defendants would be forced to act
inconsistently with one judgment in order to satisfy another judgment. 5 James W. Moore et al., Moore’s
Federal Practice ¶ 23.41[2] [a] (2d ed. 1985). Furthermore, this section is inappropriate if
monetary claims predominate.
Under Rule 23(b)(2), parties may bring a class action
if “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.” This section, often used in civil rights cases, is not appropriate when
monetary damages are at issue unless they are incidental to injunctive or
declaratory relief, and is therefore inappropriate here.
Order
1. CA No. 133-99 and CA No. 68-99 are consolidated.
2. Plaintiffs’ motion for class action certification
under T.C.R.C.P. 23(b)(3) is granted. The class shall include all non-Samoan
garment workers who presently work and formerly worked at Daewoosa.
The class excludes all Daewoosa managers. The Court, however, may redefine the members
of the class if it becomes appropriate to do so.
3. Plaintiffs shall draft a proposed notice conforming
with T.C.R.C.P. 23(c)(2)(A-C) to advise all members of
the class of their right to exclude themselves from the class if they so
choose. Plaintiffs shall submit the
proposed notice, and propose the means of disseminating the notice, to the
Court for approval no later than April 24, 2000 and, upon the Court’s approval,
shall direct the notice to the members of the class by the best means
available.
It is so ordered.