The U.S. Court of Appeals for the Sixth Circuit has affirmed the district court’s denial of class action status in litigation arising from a 2002 incident in which a Norfolk Southern train derailed, causing a chemical spill.  See Turnage v. Norfolk Southern Corp., No. 07-6033,  2009 WL 140479 (6th Cir. 2009).

While so much of the focus in class actions is on Rule 23 (b) provisions, the court found that plaintiffs had not demonstrated that the number of people allegedly harmed by the spill, but not already fully compensated, was so numerous as to make joinder impractical. While this 23(a)requirement is commonly referred to as a “numerosity” requirement, the real issue is whether the plaintiff seeking class certification has demonstrated impracticability of joinder.

The incident had led to a mandatory evacuation of homes within a 1 mile radius of the site, and a voluntary evacuation of those within a 3 mile radius.  Nevertheless, the class definition, and the number of putative class members, was a moving target throughout the litigation.

The proximity of class members to each other, and the discrete and obvious nature of the alleged harm, made identifying class members easy.  And made joinder easier too. So, while some courts find the proximity of class members a factor in favor of certification under Rule 23 (b), the 6th Circuit noted the opposite effect on the 23(a) factor.

After the incident, the defendant had set up claim centers and reimbursed a vast majority of households within the 1 mile radius for out-of-pocket expenses related to food, clothing, and lodging. Plaintiffs made an insufficient showing that the residents included in their numbers suffered actual damage. Plaintiffs failed to show how many of the 15,000 supposedly uncompensated residents actually evacuated. The excludable group includes those who were out of town during the evacuation, those in the voluntary zone who chose not to evacuate and whose daily routines were little disturbed, and those who were able to relocate temporarily to other quarters with little inconvenience or expense.