Massey Mount v. Pulte Home Company, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

BEVERLY MASSEY MOUNT;

TERESA JOHNSON; SHAQUATAN

NICOLE FLEMMING; QUINEISHA

HYLTON; and NATHANIEL

JACKSON,

Plaintiffs,

v. Case No. 6:20-cv-2314-RBD-LRH

PULTE HOME COMPANY, LLC;

and S&ME, INC.,

Defendants.

____________________________________

ORDER

Before the Court are:

1. Plaintiffs’ Motion and Memorandum in Support of Motion for Class

Certification (Doc. 77 (“Motion”));

2. Plaintiffs’ Supplemental Evidentiary Submission in Support of Class

Certification (Doc. 79);

3. Pulte Home Company, LLC’s Response and Legal Memorandum in

Opposition to Plaintiffs’ Motion for Class Certification (Doc. 87);

4. Defendant, S&ME, Inc.’s, Joinder in Defendant, Pulte Home

Company, LLC’s, Response and Legal Memorandum in Opposition

to Plaintiffs’ Motion for Class Certification (Doc. 89);

5. Plaintiffs’ Reply Regarding Motion for Class Certification (Doc. 94);

6. Pulte Home Company, LLC’s Surreply in Opposition to Plaintiffs’

Motion for Class Certification (Doc. 99); and

7. Defendant, S&ME, Inc.’s, Amended Joinder in Defendant, Pulte

Home Company, LLC’s, Surreply in Opposition to Plaintiffs’ Motion

for Class Certification (Doc. 101).

Plaintiffs’ Motion is due to be denied without prejudice.

BACKGROUND

This case involves the historic Oakland Tildenville Cemetery (“Cemetery”),

located along State Road 50 (“SR-50”). (See Doc. 1-2, ¶¶ 1, 73.) SME designed and

Pulte built a new luxury residential subdivision (“Subdivision”) just west of the

Cemetery. (Id. ¶¶ 11–12, 73–74.)

Residents had to drive through Oakland to get to the Subdivision, so for

easier access, Defendants built a new drive (“Drive”) to the Subdivision directly

off SR-50, running along the east side of the Cemetery. (See id. ¶¶ 13, 73–74.) Before

Defendants built the Drive, runoff water allegedly flowed east from the Cemetery

along SR-50 and into retention ponds on adjacent property. (Id. ¶ 74.) But when

the Drive was built between the Cemetery and that adjacent property, it allegedly

became clear the Drive would flood. (See id. ¶¶ 14, 73–74.) So, after obtaining a

permit, Defendants built a culvert that diverted water off the Drive and back in

the opposite direction—west, toward the Cemetery. (Id.)

In September 2020, it rained heavily in Oakland. (Id. ¶¶ 1, 17–18.)

Defendants’ culvert did what Plaintiffs say it was meant to do—diverted the water

off the Drive and into the Cemetery. (Id. ¶¶ 1, 74.) The resulting flood in the

Cemetery was so severe that caskets and remains rose up out of the ground,

“disturbing and desecrating the generations of graves and remains that had been

laid to rest there” and making it “too dangerous to visit.” (Id. ¶ 18.)

Plaintiffs, who are families of the deceased buried at the Cemetery, then

brought this class action suit against Defendants. (Id. passim.) The Complaint

asserts claims for: (1) injunctive and declaratory relief, seeking to bar Defendants

from further intruding on the Cemetery; (2) nuisance; (3) tortious interference with

remains; (4) intentional infliction of emotional distress (“IIED”); and

(5) interference with easement rights, as well as punitive damages. (Id.)

After several extended rounds of briefing, the pleadings finally closed.

(Docs. 60, 72, 73.) Plaintiffs now move to certify this matter as a class action, with

the class of families defined as, “All those who are or were next of kin of any

decedent laid to rest at Oakland Tildenville Cemetery on or before September 28,

2020.” (Doc. 77.) With another extended round of briefing (Docs. 87, 89, 94, 99,

101), the class certification Motion is ripe.

STANDARDS

The party seeking class certification bears the burden of proof. Brown v.

Electrolux Home Prods., Inc., 817 F.3d 1225, 1233 (11th Cir. 2016). A proposed class

must first be “adequately defined and clearly ascertainable.” Carriuolo v. Gen.

Motors Co., 823 F.3d 977, 984 (11th Cir. 2016) (cleaned up). If this requirement is

met, courts then turn to the four requirements of Rule 23(a): numerosity,

commonality, typicality, and adequacy of representation. See Sellers v. Rushmore

Loan Mgmt. Servs., LLC, 941 F.3d 1031, 1039 (11th Cir. 2019). Finally, to certify a

Rule 23(b)(3) class action, “the questions of law or fact common to class members

[must] predominate over any questions affecting only individual members” and

the class action must be “superior to other available methods.” Carriulo, 823 F.3d

at 985 (cleaned up). The certification analysis often “overlap[s] with the merits of

the plaintiff’s underlying claim.” Comcast Corp. v. Behrend, 569 U.S. 27, 33–34 (2013)

(cleaned up).

ANALYSIS

I. Threshold Questions

A. Standing

First, before reaching Rule 23, Article III requires named plaintiffs to have

standing. Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987). Standing demands

(1) a concrete, particularized injury; (2) caused by the defendant; (3) that is

redressable. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992). An

injunction-seeking plaintiff must also show a real or immediate—rather than

conjectural or hypothetical—threat of future injury. Wooden v. Bd. of Regents of

Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001).

Here, Plaintiffs have standing to seek monetary relief. They allege emotional

distress—a concrete injury. (Doc. 60, ¶¶ 57, 63, 70); see Mraz v. I.C. Sys., Inc.,

No. 2:18-cv-254, 2020 WL 7125629, at *1 (M.D. Fla. Dec. 4, 2020). They trace the

distress to Defendants’ conduct—constructing a culvert that flooded the

Cemetery—and they seek to redress their injuries with money damages. (Doc. 60,

¶¶ 49, 56, 63.) Article III requires no more.1 Thus, Plaintiffs have standing.

B. Ascertainability

Next, the Court turns to Plaintiffs’ proposed class: “All those who are or

were next of kin of any decedent laid to rest at Oakland Tildenville Cemetery on

or before September 28, 2020.” (Doc. 77, p. 1.) A proposed class must be

“adequately defined and clearly ascertainable.” Carriuolo, 823 F.3d at 984 (cleaned

1 Though the Court finds below that Plaintiffs have not met their burden to seek an

injunctive class, Plaintiffs also have standing to sue for injunctive relief. They allege that

Defendants’ culvert caused the Cemetery to flood in September 2020, and they fear it will happen

again. (Doc. 60, ¶¶ 17, 35.) Defendants suggest this lone incident does not show an imminent risk

of future floods. (Doc. 87, p. 15.) But the flood occurred shortly after the culvert’s construction

(Doc. 87-1, p. 10), and the culvert is still in place. (Doc. 60, ¶¶ 49, 57, 63, 70; Doc. 87, p. 14.) So the

prospect of future flooding is likely enough to create a real threat of injury. See, e.g., St. Bernard

Par. Gov’t v. United States, 121 Fed. Cl. 687, 716–17, 739 (Fed. Cl. 2015), rev’d on other grounds, 887

F.3d 1354 (Fed. Cir. 2018) (finding real and immediate risk of future flooding based on a severe

flood six years prior and intermittent flooding after).

up). A class is ascertainable if membership is based on objective criteria. Karhu v.

Vital Pharm., Inc., 621 F. App’x 945, 946 (11th Cir. 2015). A class is not ascertainable

if membership turns on vague or subjective criteria. Cherry v. Dometic Corp.,

986 F.3d 1296, 1304 (11th Cir. 2021).

Here, the proposed class is adequately defined. Membership is based on a

legal term—next of kin—determinable by reference to objective statutory

definitions. See Fla. Stat. §§ 744.102, 731.201. So the class is ascertainable.

II. Rule 23(a)

Rule 23(a) has four requirements: numerosity, commonality, typicality, and

adequacy. Fed. R. Civ. P. 23(a). Defendants argue that the proposed class fails at

each step. The Court disagrees.

Generally, a class over forty is numerous enough for class treatment. Cox v.

Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986). Here, counsel for the

putative class asserts they have been retained by over 350 next of kin (Doc. 77-6,

¶ 5), making it numerous enough to prevent practicable joinder other than by class

treatment.

Commonality is a “light burden” that requires “at least one issue” that will

affect all or most of the putative class. Andreas-Moses v. Hartford Fire Ins. Co.,

326 F.R.D. 309, 315 (M.D. Fla. 2018). Whereas predominance and susceptibility of

key issues to common proof is a stickier wicket, commonality is easily met here as

there is at least one overarching question that affects the class: did Defendants

cause the Cemetery to flood? See, e.g., id.; James D. Hinson Elec. Contracting Co. v.

BellSouth Telecommunications, Inc., 275 F.R.D. 638, 642 (M.D. Fla. 2011).

“Typicality measures whether a sufficient nexus exists between the claims

of the named representatives and those of the class at large.” Wooden, 247 F.3d

at 1287 (cleaned up). A claim is typical if it is based on the same legal theory as the

class. Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1357 (11th Cir. 2009). Here, the

named representatives submitted discovery responses identifying themselves as

next of kin and suffering the same or similar injuries as the rest of the class based

on the interference with their gravesite rights given the overarching common

issue: the cause of the flood. (Docs. 77-1 to 77-5, p. 3.)

Adequacy similarly “requires that both the named plaintiffs and their

counsel will fairly and adequately protect the interests of the class.” Andreas-Moses,

326 F.R.D. at 316. Defendants focus on the causation issue—discussed later—but

do not otherwise challenge the adequacy of the individually named plaintiffs.

(Doc. 87, p. 13.) Rather, Defendants argue that Plaintiffs’ counsel has not devoted

enough resources. (Id.) But the putative class counsel are experienced, and there is

no affirmative showing they could not protect the interests of the class. (See

Doc. 77-6.)

With the Rule 23(a) requirements met, the Court turns to the more

challenging requirements of Rule 23(b).

III. Rule 23(b)

Rule 23(b) offers two certification paths: Rule 23(b)(2) is reserved for classes

seeking class-wide injunctive relief, whereas Rule 23(b)(3) is available where class-

wide questions predominate and class litigation is the superior method of

adjudication. Plaintiffs mainly focus on the latter vehicle here.2

Rule 23(b)(3) certification is available when common questions of law or fact

“predominate” over individual questions. Fed. R. Civ. P. 23(b)(3). To gauge

predominance, courts must identify the elements of the claims and defenses, then

classify the issues as common or individual. Brown, 817 F.3d at 1234. Common

issues are susceptible to evidence that resolves the issue on a simultaneous, class-

wide basis. Id. Once classified, courts must determine whether common issues

predominate over individual ones; common issues predominate when they have

a more direct effect on liability than individualized issues. Vega v. T-Mobile USA,

Inc., 564 F.3d 1256, 1270 (11th Cir. 2009).

Here, Plaintiffs bring four monetary claims: (1) nuisance; (2) tortious

interference with remains; (3) IIED; and (4) easement interference. (Doc. 60.) Each

2 Plaintiffs make the briefest of stabs at Rule 23(b)(2) certification, given their first count

for injunctive relief. (Doc. 77, pp. 18–19.) But their emotional distress damages, which they seek

on every other cause of action (Doc. 60, ¶¶ 49, 57, 63, 70, 81), require individualized injury

inquiries, so they belong in Rule 23(b)(3). See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 363

(2011); Murray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001). And Plaintiffs make no convincing

argument for any sort of hybrid class, which can prove unwieldy anyway.

is anchored to the contention that Defendants desecrated graves by diverting

floodwater into the Cemetery. (Id. ¶¶ 35, 41, 50, 58, 64.) These claims feature

several common issues, including: whether the culvert caused floodwater to flow

into the Cemetery; whether Defendants’ use of the property was reasonable;

whether Defendants acted with the requisite state of mind; and whether Plaintiffs

have an enforceable right in their family member’s remains and in an easement.

(Doc. 77, pp. 7–14.) Several affirmative defenses also turn on common questions,

including: whether Defendants obtained the necessary permits for the culvert;

whether those permits bar liability; whether an “act of God” caused the flooding;

whether Defendants can shift liability to one another or a third party; whether

Plaintiffs’ relief amounts to economic waste; and whether Defendants’

remediation of the stormwater system bars Plaintiffs’ claims. (Id. at 14–16.)

Notably, all four counts share two core questions: (1) did floodwater

interfere with Plaintiffs’ rights;3 and (2) did Defendants’ culvert cause the

interference? Defendants argue that individualized evidence is necessary to prove

interference and causation. (Doc. 87, p. 9.) They point to a report by their expert,

who states that topographical variations in the Cemetery affected the extent of

3 Tortious interference with a dead body requires proof that floodwater actually affected

the remains. See Williams v. City of Minneola, 575 So. 2d 683, 688–89 (Fla. 5th DCA 1991). Plaintiff’s

IIED claim requires the same. (Doc. 60, ¶¶ 58–59; Doc. 24, pp. 11–13.) Easement interference

similarly requires proof that floodwater actually interfered with Plaintiffs’ ability to access and

maintain their kin’s grave. Mingledorff v. Crum, 388 So. 2d 632, 636 (Fla. 1st DCA 1980). And

nuisance requires proof of either. (Doc. 60, pp. 12–13.)

flooding, concluding that each gravesite must be individually evaluated to

determine whether floodwater affected the area and whether floodwater

specifically from the culvert caused the alleged damage. (Doc. 87-1, pp. 13, 16–17.)

To combat this, Plaintiffs submit photographs of the flooded Cemetery (Doc. 94-

2), which they contend show that “the entire Cemetery was flooded, injuring and

impairing the rights of every family.” (Doc. 94, p. 6.) Plaintiffs also rely on an

affidavit by Sharon Ranson,4 president of the board that oversees the Cemetery,

generically claiming that flooding interfered with the families’ ability to visit the

graves and that the Cemetery did not flood before the culvert’s construction.

(Doc. 79-1, p. 1.) True, the photographs show a high level of flooding, but it is

unclear whether every grave is flooded and to what extent.5 And it is unclear

whether all floodwater in the Cemetery was attributable to the culvert. So on the

current record, the Court cannot sufficiently determine whether these core

issues—which cut across all four claims—are susceptible to common evidence or

not.6

4 As this question requires more evidence, the Court need not evaluate at this stage

Defendants’ argument that Ranson’s affidavit should be disregarded. (Doc. 87, p. 5.) They may

re-address this issue on Plaintiffs’ renewal.

5 Plaintiffs also argue that the amount of floodwater affecting each grave only relates to

damages, not liability. (Doc. 94, p. 7.) True, but the issue is not the amount of floodwater affecting

each grave, but whether floodwater affected each grave—and that goes to liability, not damages.

See Cordoba v. DIRECTTV, LLC, 942 F.3d 1259, 1273 (11th Cir. 2019) (“The issue of liability includes

not only the question of violation, but also the question of fact of injury.” (cleaned up)).

6 Plaintiffs’ damages will also require individualized inquiry. See Kim v. Jung Hyun Chang,

249 So. 3d 1300, 1305 (Fla. 2d DCA 2018) (regarding IIED damages). While this is relevant to

With it being unclear whether certain key questions are susceptible to

common proof, the Court cannot conclude—at this point—that common issues

predominate.7 Proof of causation especially could require nuanced scientific

evidence. (See Doc 87-1, pp. 13–14.) The critical question, then, is whether Plaintiffs

can prove through common evidence that all floodwater in the Cemetery affected

all graves and was attributable to the culvert. Ranson’s affidavit suggests that

these issues are susceptible to common evidence, but the conclusory nature of that

affidavit and the photographs prevents the Court from determining that at this

stage.8 But more discovery—the bulk of which has taken place during the

pendency of this Motion, and which will close soon on the merits—will likely

clarify the issue. So while the Motion is due to be denied, it is only without

prejudice subject to renewal.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs’ Motion

predominance, individual damages questions generally do not defeat certification. Brown,

817 F.3d at 1239. Plaintiffs concede that their emotional distress damages could vary based on

individualized evidence. (Doc. 60, ¶¶ 49, 57, 63, 70.) So they ask the Court to bifurcate the

proceedings, certify the liability issues, and reserve damages for individualized treatment.

(Doc. 77, p. 21.) The Court will take up this issue on renewal if Plaintiffs can show that common

issues predominate on liability.

7 Because the predominance analysis “has a tremendous impact on the superiority

analysis,” Sacred Heart Health Sys., Inc. v. Humana Mil. Healthcare Servs., Inc., 601 F.3d 1159, 1184

(11th Cir. 2010), the Court also finds that added discovery on causation will help clarify whether

a class action is superior to other available methods.

8 Typically, plaintiffs proffer experts who propose a method for determining the extent of

flooding on a class-wide basis. See, e.g., Navelski v. Int’l Paper Co., 244 F. Supp. 3d 1275 (N.D. Fla.

2017).

(Doc. 77) is DENIED WITHOUT PREJUDICE.

Having found the rest of the prerequisites met, noting that added discovery

may make the common proof and causation questions clearer as they are tied up

in the merits liability inquiry, and with the overall case discovery closing soon, the

Court finds that renewal of the certification motion is permitted.? The Court will

permit Plaintiffs to renew their motion by December 5, 2022, via a brief of no more

than fifteen pages, with Defendant’s response due by Friday, December 30, 2022,

and limited to ten pages. The parties need not address the threshold or Rule 23(a)

inquiries, as the Court has found those satisfied; the briefing should solely address

whether the Rule 23(b)(3) inquiry is satisfied and provide more evidence as

necessary.

DONE AND ORDERED in Chambers in Orlando, Florida, on August 17,

2022.

fi}

;

i x -

we ROY B. DALTON JR:

United States District Judge

° See Chrysler Int'l Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002); e.g. Moore v. GNC

Holdings, Inc., No. 12-61703, 2013 WL 12237746, at *3 (S.D. Fla. July 9, 2013); Terrill v. Electrolux

Home Prod., Inc., 274 F.R.D. 698, 701 (S.D. Ga. 2011); cf. Narvaez v. L. Offs. of Antonio Duarte, II,

No. 8:14-cv-1646, 2014 WL 12872855, at *2 (M.D. Fla. Sept. 12, 2014).

12