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Text of Order Denying Class Certification

Posted by Kevin Brown on Friday, February 10 2006 at 4:13:02PM

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KEVIN BROWN,)
on behalf of himself and all others)
similarly situated,)
)
Plaintiff,)
)1:05-CV-1585-RLY-VSS
v. )
)
STATE OF INDIANA, et al.,)
)
Defendants.)

Entry Discussing Plaintiff’s Motion for Class Certification


Plaintiff Kevin Brown has filed a motion for class certification. The proposed class consists of “all residents of Marion County, the Consolidated City of Indianapolis, or traveling intra-County, who are or may be in the future parents, or custodians, or guardians of children, and who are attracted to minors (‘pedophiles’).”

Rule 23(a) of the Federal Rules of Civil Procedure establishes four prerequisites for class certification: “(1) [that] the class is so numerous that joinder of all its members is impracticable, (2) [that] there are questions of law or fact common to the class, (3) [that] the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) [that] the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). Class certification is not appropriate unless the named plaintiff establishes all four prerequisites, General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 156 (1982).

Due process mandates that the fourth requirement--competent representation--be “stringently applied,” because “members of [a] class are bound [by the judgment in a class action suit] unless they exercise their option to be excluded, even though they may not be actually aware of the proceedings.” Albertson’s Inc. v. Amalgamated Sugar Co., 503 F.2d 459, 463-64 (10th Cir. 1974); Michigan v. Art Capital Corp., 612 F. Supp. 1421, 432 (S.D.N.Y. 1985). Adequacy of representation is measured by a two-pronged test: there must be an “absence of…potential conflict between the named plaintiffs and the absent class members,” and “the parties’ attorneys [must] be qualified, experienced, and generally able to conduct the proposed litigation.” Margolis v. Caterpillar, Inc., 815 F. Supp. 1150, 1157 (C.D.Ill. 1991).

Mr. Brown meets neither prong. First, he is a member of the class he seeks to represent, and courts have held that “the potential for conflicts of interest militates against certifying a class in which the class representatives seek to also act as class counsel.” Loden v. Edgar, 1994 WL 97726, at *1 (N.D.Ill. Mar. 22, 1994); see also Wagner v. Taylor, 836 F.2d 578, 595-96 & n. 126 (D.C.Cir. 1987). Second, the plaintiff is a pro se litigant, states that he is unable to “finance class counsel from his personal resources” and does not have the training necessary to represent the class adequately. See Lasley v. Godinez, 833 F. Supp. 714, 715 n.1 (N.D.Ill. 1993) (pro se prisoners could not adequately represent class of inmates); Turner-El v. Illinois Bd. of Education, 1994 WL 27874, at *1 (N.D.Ill. Jan. 31, 1994) (“Because a layman does not ordinarily possess the legal training and expertise necessary to protect the interests of a proposed class, courts are reluctant to certify a class represented by a pro se litigant.”) (citations omitted) (citing Phillips v. Tobin, 548 F.2d 408, 413-14 (2d Cir. 1976); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); Ethnic Awareness Organization v. Gagnon, 568 F. Supp. 1186, 1187 (E.D.Wis. 1983)). The court does not view the plaintiff’s accompanying request for the appointment of counsel pursuant to Local Rule 4.1 as a means of remedying this deficiency, for that Rule was never intended to operate in this fashion.

On the basis of the foregoing, therefore, the plaintiff’s motion for class certification is denied.

IT IS SO ORDERED.


Date: 02/02/2006

[name omitted], JUDGE
United States District Court





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