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Riggleman v. Clarke

United States District Court, W.D. Virginia, Harrisonburg Division

April 29, 2019

Terry A. Riggleman, Plaintiff,
Harold Clarke and Mark Amonette, Defendants.



         This is a putative class action. Terry A. Riggleman (“Plaintiff”) is a Virginia inmate who claims he has endured cruel and unusual punishment through the Virginia Department of Corrections' (“VDOC”) refusal to treat his Hepatitis C infection. Before the Court is his second motion to certify a class of fellow inmates with Hepatitis C. Certification is inappropriate because Plaintiff is not an adequate class representative. Fed.R.Civ.P. 23(a)(4), 23(g).

         Specifically, Plaintiff's counsel is not adequate to handle this case as a class action. Counsel initially failed to provide evidence about their qualifications, experience, or financial ability to litigate a class action-despite binding case law placing a meaningful evidentiary burden on Plaintiff to prove he has adequate counsel. Following a hearing on the motion, Plaintiff's counsel did file two declarations, which the Court has considered. Also, counsel's filings in this case reveal a lack of substantive knowledge about class actions and a disregard for the privacy interests of their client. Lastly, counsel's performance in other cases in this District evinces, among other things, a shortfall in legal acumen and an inability to comply with basic procedural rules.

         I. Standard of Review

         Class certification is a discretionary decision. EQT Prod. Co. v. Adair, 764 F.3d 347, 357 (4th Cir. 2014). A plaintiff trying to certify a class must (1) propose a readily identifiable class, (2) satisfy all four requirements of Rule 23(a), and (3) satisfy at least one prong of Rule 23(b). See id. at 358; Fed.R.Civ.P. 23(a), (b). Further, Rule 23(g) sets out specific factors a court must consider in appointing class counsel. Fed.R.Civ.P. 23(g)(1).

         “A party seeking class certification must do more than plead compliance with . . . Rule 23['s] requirements. Rather, the party must present evidence that the putative class complies with Rule 23.” EQT Prod., 764 at 357.; see Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“A party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” (emphasis in original)). Critically here, a “district court has an independent obligation to perform a rigorous analysis to ensure that all of the prerequisites have been satisfied.” EQT Prod., 764 F.3d at 358.

         II. Adequacy of Counsel

         Because class certification fails if even one Rule 23 requirement for certification is not met, the Court can proceed directly to the one it finds most obviously lacking: adequacy of proposed class counsel. Rule 23(a) requires that the prospective class comply with four prerequisites: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. EQT Prod., 764 F.3d at 357; Fed.R.Civ.P. 23(a). In his brief in support of the motion for certification of a class, Plaintiff states that Rule 23(a)(4) turns on two inquiries: (1) whether the named plaintiffs have interests conflicting with those of absent class members and (2) whether class counsel are competent to conduct the class action and fairly represent the interests of the class. (Dkt. 101 at 19). At the December 20, 2018 hearing on Plaintiff's motion to certify a class, Defendants' counsel took no position on the adequacy of Plaintiff's counsel to represent a class in this case. (Dkt. 115 at 29-30).

         In 2003, Rule 23 was amended, in part, by adding subsection 23(g), which governs the appointment of class counsel. Rule 23(a)(4) sets out the requirements for adequate class representatives while Rule 23(g) and Rule 23(c)(1)(B) address the requirements for class counsel. Bell v. Brockett, ___ F.3d ___, 2019 WL 1848525, at *7 (4th Cir. 2019). Rule 23(g) “creates an explicit textual mooring for the class counsel analysis[, ] but most courts continue to employ the substantive standards generated under Rule 23(a)(4) prior to Rule 23(g)'s adoption in their analysis of counsel's adequacy.” 1 William B. Rubinstein, Newberg on Class Actions § 3:72 (5th ed.) (quoted in Sharp Farms v. Speaks, 817 F.3d 276, 290 n.7 (4th Cir. 2019)).

         To the extent Rule 23(g) governs the determination of the adequacy of proposed class counsel, a finding of adequacy remains a part of the certification decision. First, any order that certifies a class action must appoint counsel under Rule 23(g), meaning that a determination of counsel's adequacy must be made prior to entry of an order. See Fed. R. Civ. P. 23(c)(1)(B). Second, the Advisory Committee Note to the 2003 Amendment stated that while Rule 23(a)(4) continues to call for scrutiny of the proposed class representative, Rule 23(g) “will guide the court in assessing proposed class counsel as part of the certification decision.” Fed.R.Civ.P. 23, adv. comm. notes (2003 amendment). Third, adoption of Rule 23(g) did not change the long-standing rule that “[a] class action is appropriate only when both class representatives and class counsel adequately protect the interests of the class.” Bell, 2019 WL 1848525, at *6 (emphasis added). Thus, a finding that proposed counsel are adequate remains a requirement of certifying a class.

         When only one applicant seeks appointment, as here with respect to Plaintiff's counsel, the court may appoint the applicant only if the applicant is adequate under Rule 23(g)(1) and (4). Rule 23(g)(4) provides that any appointed class counsel must “fairly and adequately represent the interests of the class.”[1] Rule 23(g)(1) provides that the court must consider (1) the work counsel has done in identifying or investigating potential claims in the action; (2) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (3) counsel's knowledge of the applicable law; and (4) the resources that counsel will commit to representing the class. Fed.R.Civ.P. 23(g)(1)(A). The court may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class. Fed.R.Civ.P. 23(g)(1)(B).

         The inquiry focuses on whether counsel is competent, dedicated, qualified, and experienced enough to appropriately conduct the litigation as a class action. See, e.g., In re Serzone Prod. Liab. Litig., 231 F.R.D. 221, 238 (S.D. W.Va. 2005); McGlothlin v. Connors, 142 F.R.D. 626, 633-34 (W.D. Va. 1992) (same). “[B]ecause of the broad binding effect of class-action judgments, serious attention is given to the adequacy of representation of those absent class members who will be bound by the judgment.” Wright & Miller, 7A Fed. Prac. & Proc. Civ. § 1769.1 (Westlaw 3d ed. Sept. 2018). The “inquiry into the adequacy of class counsel” is of “extreme importance.” Id.

         A. Evidence about Qualifications of Counsel

         It is the plaintiff's burden to demonstrate compliance with Rule 23. EQT Prod., 764 F.3d at 358; see Wal-Mart, 564 U.S. at 350 (requiring plaintiff to “affirmatively demonstrate” compliance with Rule 23 “in fact”). ...

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