Opinion
No. 99 C 7885
June 20, 2001
MEMORANDUM OPINION
Before the Court is the motion to reconsider of Plaintiffs John Does 1 through 30 Inclusive and Unknown Illinois State University Football Players. Plaintiffs ask us to reconsider our ruling of April 12, 2001, granting their motion for class certification and certifying the class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. In support of this motion, they raise several concerns about the conduct required of them in order to satisfy the notice requirements of Rule 23 (b)(3). In light of the sensitive allegations in this case, we can understand Plaintiffs' concerns. Accordingly, we have reconsidered the class certification issue.
Plaintiffs seek injunctive relief and monetary damages. They also desire to avoid the notice and opportunity to opt out required by Rule 23 (b)(3) because of the delicate nature of this litigation. These dual desires — the pursuit of monetary damages but aversion to notice and opt-out provisions — can pose a predicament. Generally speaking, where plaintiffs seek money damages for their injuries, the Supreme Court has "stressed that proper interpretation of Rule 23, principles of sound judicial management, and constitutional considerations (due process and jury trial), all lead to the conclusion that in actions for money damages class members are entitled to personal notice and opportunity to opt out." Jefferson v. Ingersoll Int'l. Inc., 195 F.3d 894, 897 (7th Cir. 1999) (citing Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)). This general requirement may only be lifted where individual suits would confound the interest of other plaintiffs. See id; see also Fed.R.Civ.P. 23(b)(1), 23(b)(2). Examples of such suits are where a limited fund must be distributed ratably among stakeholders (making certification appropriate under Rule 23(b)(1)), or where an injunction would affect everyone alike (making certification appropriate under Rule 23(b)(2)). Both subsections have limited application, however, and both the Supreme Court and the Seventh Circuit have discouraged "creative use" of these two subsections in order to "override the rights of class members to notice and an opportunity to control their own litigation."Id. (citing Ortiz, 527 U.S. 815 (1999)).
Neither Rule 23(b)(1) nor Rule 23(b)(2) furnishes an appropriate basis for class certification in the case at bar. Because no limited fund is at play, nor would individual suits confound the interest of other plaintiffs, Rule 23(b)(1) does not apply. Furthermore, Rule 23(b)(2) cannot encompass the entire litigation, since Plaintiffs seek money damages as well as injunctive relief. The Seventh Circuit has held that certification of a class under Rule 23(b)(2), without notice or opportunity to opt out, is impermissible unless the requested monetary damage is "incidental" to the requested injunctive relief. See Lemon v. International Union of Operating Engineers, 216 F.3d 577, 581 (7th Cir. 2000) (vacating certification of a class under Rule 23(b)(2) where requested monetary damages were not incidental to the requested equitable relief). The term "incidental" is defined narrowly as "damages that flow directly from liability to the class as a whole on the claims forming the basis of injunctive or declaratory relief." Id. (quoting Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998)). Conversely, incidental damages do not depend on the "intangible, subjective differences of each class member's circumstances" nor require "additional hearings to resolve the disparate merits of each individual's case." Id. (quoting Allison, 151 F.3d at 415). The damages in the case at bar will be based on precisely such "intangible, subjective differences" among class members based on the nature of their exposure in the films. Assessing each individual's damages will necessarily require a hearing or some type of individual inquiry into that person's case. Accordingly, the damages in this case are not "incidental" to the desired injunctive relief', so class certification under Rule 23(b)(2) with respect to all claims is improper.
Instead, the most prudent course is to certify a class pursuant to Rule 23(b)(2) with respect to the injunctive relief sought by Plaintiffs. With respect to the portion of the case seeking monetary damages, however, we decline to certify a class action. Instead, each action will proceed individually. This resolution comports with the relevant rules and case law and accommodates Plaintiffs' desires as set forth on page five of their motion memorandum.