Simpson v. Carothers Holding Company,LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL ACTION NO. 3:23-CV-00217-KDB-SCR

HUBERT SIMPSON, ET AL.,

Plaintiffs,

v. ORDER

STONEMOR GP, LLC;

CAROTHERS HOLDING

COMPANY, LLC; STONEMOR

NORTH CAROLINA, LLC;

STONEMOR PARTNERS, LP;

STONEMOR NORTH

CAROLINA FUNERAL

SERVICES, INC.; AND

STONEMOR NORTH

CAROLINA SUBSIDIARY, LLC,

Defendants.

THIS MATTER is before the Court on Defendants’ Motions to Dismiss (Doc. Nos. 29,

32) and Plaintiffs’ Motion to Certify Class (Doc. No. 30). The Court has carefully considered these

motions, the parties’ briefs and exhibits, oral argument on the motions from the parties’ counsel

on December 12, 20231 and the Second Amended Complaint (“SAC”) (Doc. No. 68). In this case,

Plaintiffs assert multiple causes of action on behalf of thousands of putative class members

claiming that Defendants committed serious misconduct in operating York Memorial Cemetery,

where their “next of kin” are buried (or where they have purchased burial plots). However, despite

1 Following this hearing, the Court granted Plaintiffs’ oral motion to file a Second Amended

Complaint, to which Defendants’ then pending motions to dismiss were deemed to apply. Doc.

No. 65. Supplemental briefing on the Parties’ motions following the filing of the Second Amended

Complaint recently concluded on March 21, 2024.

Plaintiffs having now had three opportunities to define one or more viable classes, it is clear that

they cannot properly maintain their widely varying claims as a class action under Rule 23 of the

Federal Rules of Civil Procedure. Therefore, the Court will deny the Motion to Certify Class.

With this denial of class certification, the lone basis for federal jurisdiction over this very

local dispute no longer applies. Accordingly, the Court will remand this matter to the Superior

Court of Mecklenburg County, North Carolina, leaving the merits of the Defendants’ motions to

dismiss to be decided in the state courts, where similar claims related to the same cemetery are

pending and were the subject of earlier litigation ultimately resolved in the North Carolina Court

of Appeals.

I. LEGAL STANDARD

A class action allows representative parties to prosecute not only their own claims, but also

the claims of other individuals which present similar issues. Thorn v. Jefferson-Pilot Life Ins. Co.,

445 F.3d 311, 318 (4th Cir. 2006). Plaintiffs seeking class certification “must affirmatively

demonstrate [their] compliance” with Federal Rule of Civil Procedure 23. Wal–Mart Stores, Inc.

v. Dukes, 564 U.S. 338, 350 (2011). Courts have wide discretion to certify a class based on their

familiarity with the issues and consideration of both the potential efficiency and flexibility of a

class action and the potential difficulties arising in such litigation. See, e.g., Brown v. Nucor,2 785

F.3d 895, 921–22 (4th Cir. 2015); Ward v. Dixie Nat'l Life Ins. Co., 595 F.3d 164, 179 (4th Cir.

2010).

2 Carothers’ counsel’s quotation from the dissent in this case without informing the Court that it

was doing so, and then failing to address this misrepresentation in its Reply brief (after it was

pointed out by Plaintiffs), is of significant concern to the Court. Had this matter remained in this

Court, this issue would have been addressed with counsel, including consideration of revoking the

pro hac vice admission of any counsel responsible for the erroneous filing.

Rule 23(a) requires that a prospective class satisfy four prerequisites to ensure that class

claims are fairly encompassed by those of the named plaintiffs. See Fed. R. Civ. P. 23(a). These

prerequisites are often referred to as numerosity, commonality, typicality, and adequacy. See

Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 654 (4th Cir. 2019). The Fourth Circuit has also

recognized that Rule 23 “contains an implicit threshold requirement” of “ascertainability” – that

the members of a proposed class be “readily identifiable” by way of reference to objective criteria.

See id. at 654–55.

To satisfy the numerosity requirement, the proposed class must be so numerous that

“joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Commonality requires that a

class have “questions of law or fact common to the class” which are capable of classwide

resolution, such that the determination of the truth or falsity of the common issue “will resolve an

issue that is central to the validity of each one of the claims in one stroke.” Fed. R. Civ.

P. 23(a)(2); Dukes, 564 U.S. at 350. As for typicality, the named plaintiff proposed as the class

representative must be “typical” of the class in that the named plaintiff's claims and defenses “are

typical of the claims or defenses of the class” so that the prosecution of the claim will

“simultaneously tend to advance the interests of the absent class members.” Fed. R. Civ. P.

23(a)(3); Deiter v. Microsoft Corp., 436 F.3d 461, 466-67 (4th Cir. 2006). Finally, the named

plaintiff must “fairly and adequately protect the interests of the class” without a conflict of interest

with the absent class members. Fed. R. Civ. P. 23(a)(4); Ward, 595 F.3d at 179-80. The adequacy

prerequisite also requires consideration of “the competency of class counsel.” Gen. Tel. Co. of Sw.

v. Falcon, 457 U.S. 147, 158 n.13 (1982).

To be maintained as a class action, a case must not only meet the four requirements of Rule

23(a) but it also must fit into one of the four categories of Rule 23(b), and it may fit into more than

one. Fed. R. Civ. P. 23; Krakauer, 925 F.3d at 655. In other words, Rule 23 recognizes that there

are cases that satisfy the Rule 23(a) criteria—numerous individuals with common questions whose

rights are being pursued by an adequate class representative with typical claims—but that are

unworthy of class certification on those grounds alone.

Rule 23(b)(1)(A) describes the “rarely used” category of class actions where the

prosecution of “separate actions by or against individual members of the class would create a risk

of incompatible standards of conduct for the adverse party due to inconsistent or varying

adjudications with respect to individual members of the class.” See 2 William Rubenstein et al.,

Newberg on Class Actions, § 4:1 (5th ed. 2020) (hereinafter “Newberg”); Reyes v. Julia Place

Condominiums Homeowners Ass'n, Inc., 2014 WL 7330602, *10 (E.D. La. 2014) (noting that Rule

23(b)(1)(A) category is “rarely utilized” and “does not cover situations in which multiple plaintiffs

sue a single defendant for money damages”). Rule 23(b)(1)(B) class actions are appropriate in

situations where an individual judgment, while not technically concluding the claims of other

members, might do so as a practical matter, for example a suit against a single defendant whose

funds are so limited that they are incapable of satisfying all the potential claimants. See Fed. R.

Civ. P. 23(b)(1)(B). Rule 23(b)(2) authorizes a class action when a party has taken or refused to

take action with respect to a class, and “final injunctive relief or corresponding declaratory relief

is appropriate with respect to the class as a whole.” See Fed. R. Civ. P. 23(b)(2). The (b)(2) class

action is often referred to as an “injunctive” class suit. See Newberg at § 4.1.

Finally, Rule 23(b)(3) permits a class action in all other circumstances where the

prerequisites of Rule 23(a) are met, and two additional criteria are satisfied: (1) that questions of

law or fact common to members of the class predominate over any questions affecting only

individual members and (2) that a class action is superior to other available methods for the fair

and efficient adjudication of the controversy. See Fed. R. Civ. P. 23(b)(3). This is the most common

category for money damage cases, especially small claims class actions, and hence is commonly

referred to as a “money damages” class action. See Krakauer, 925 F.3d at 655 (Rule 23(b)(3) is

the “common vehicle” for class actions “which seek damages for widespread wrongful conduct”);

Newberg at § 4.1.

Further, although it is Plaintiffs’ burden to demonstrate compliance with Rule 23, this

Court “has an independent obligation to perform a ‘rigorous analysis’ to ensure that all of the

prerequisites have been satisfied.” EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014)

(quoting Dukes, 564 U.S. at 350–51). As Rule 23’s criteria are often “enmeshed in the factual and

legal issues comprising the plaintiff's cause of action,” this analysis may entail some consideration

of the merits of the underlying claims. See Dukes, 564 U.S. at 351. However, “Rule 23 grants

courts no license to engage in free-ranging merits inquiries at the certification stage. Merits

questions may be considered to the extent—but only to the extent—that they are relevant to

determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v.

Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013).

II. FACTS AND PROCEDURAL HISTORY

York Memorial Cemetery (the “Cemetery”) is one of the oldest and largest historically

African American cemeteries in Charlotte, North Carolina, with approximately 28,000 individuals

having been buried there since its founding. SAC at ¶¶ 1, 33. Defendants are current and former

owners and operators of the Cemetery (and related entities). Id. at ¶¶ 2, 24-30. Nine of the ten named

plaintiffs are the alleged “next of kin” of parents, children and other family members buried in the

cemetery. Plaintiff Burlin Allen, Sr., the tenth named plaintiff, has purchased grave plots at the

cemetery for himself and other family members.

Plaintiffs allege in their verified SAC that Defendants are liable for negligence, breach of

contract, breach of fiduciary duty, desecration of gravesites and violation of North Carolina’s

Unfair and Deceptive Trade Practices Act based on numerous different acts of “egregious

treatment of human remains and gravesites” at the Cemetery. Id. at ¶ 1. Defendants’ alleged

wrongful conduct includes the failure to maintain adequate records of burials, burial sites, and

contracts; desecration of graves; the losing of deceased bodies; placing markers on the wrong

gravesites; failing to bury persons next to their loved ones; the encroachment of graves;

contractual breaches pertaining to the sale of burial sites; and false and misleading advertisements

since at least 1969 to the present. See id. at ¶ 47. Plaintiffs further allege that Defendants

intentionally concealed their actions from the Plaintiffs, other individuals whose families are

buried at the Cemetery and the community. Id. at ¶ 48.

Plaintiffs seek to represent two putative classes pursuant to Federal Rules of Civil

Procedure 23(a), 23(b)(1)(A) and 23(b)(3). Id. at ¶ 83. The first proposed class is “[a]ll individuals

who entered into a contract with Defendants for burial services at York Memorial Cemetery from

January 1, 1969, through the date of class certification (the "Contract Holder Class")” and the

second is “[a]ll individuals who are next of kin of any individual buried at York Memorial

Cemetery from January 1, 1969, through the date of class certification (the "Next of Kin Class").”

Id. at ¶¶ 84-85. Plaintiffs acknowledge that “the exact number of each Class is currently unknown,”

but allege that “there are thousands of individual members of the Proposed Classes” and “[f]or

purposes of defining the class period, discovery will reveal when the unlawful conduct occurred,

as well as Defendants' ongoing efforts to conceal their misconduct and the resulting injuries to

class members.” Id. at ¶¶ 86, 89.

This action was filed on March 17, 2023 in Mecklenburg County Superior Court, and was

removed to this Court on April 14, 2023 based only on the Class Action Fairness Act (“CAFA”),

28 U.S.C. § 1332(d) (a putative large class action satisfying the minimal diversity requirements).

See Doc. No. 1. Following removal, Defendants moved to dismiss the Complaint, which became

moot when the Court allowed Plaintiff to file an Amended Complaint. See Doc. Nos. 11, 16, 19.

Defendants then moved to dismiss the Amended Complaint, and Plaintiffs moved to certify their

proposed class. Doc. Nos. 29-30, 32. At the hearing on those motions, Plaintiffs orally moved to

file a Second Amended Complaint, which the Court granted. Doc. No. 65. The Court further

ordered that Defendants’ motions to dismiss would be “deemed to have been renewed to seek

dismissal of the Second Amended Complaint.” Doc. No. 65. Supplemental briefing on all of the

pending motions has concluded, and they are ripe for resolution.

III. DISCUSSION

This action raises important issues of intensely local concern, all governed by North

Carolina law and, according to Plaintiffs, North Carolina public policy. It was first filed in the state

Superior trial court for Mecklenburg County, North Carolina, where the Cemetery is located. But,

it was neither the first nor the last case in that court raising claims related to alleged wrongful

conduct at the Cemetery. See Birtha v. StoneMor, North Carolina, LLC, 220 N.C. App. 286, 298

(2012); Hardin v. York Memorial Park, 221 N.C. App. 317, 328 (2012); Natalie Little, et al. v.

Carothers, Holding Co., LLC, et al., 23-cvs-4924 (March 17, 2023, Mecklenburg County North

Carolina Superior Court) (pending action alleging similar claims). Thus, much of this dispute is

already familiar to the state courts. The only jurisdictional nexus to Federal Court lies in the alleged

nature of the case as a class action, and, if it is not a class action, there is a significant question

whether this Court should retain jurisdiction. Therefore, the Court will first consider below

whether Plaintiffs’ claims can properly be maintained as a class action and then, after holding that

it cannot, explain why the action will be remanded to state court for further proceedings.

A. Class Certification

1. Rule 23(a) Factors

a) Ascertainability

The initial factor to be considered with respect to certification under Rule 23 is whether

the class is adequately defined so that the members of the class are “readily identifiable”

through objective criteria. EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (internal

citations omitted). Where it is impossible to identify class members without “extensive and

individualized fact-finding or mini-trials,” a class cannot be certified. Id. See also, Krakauer v.

Dish Network, LLC, 925 F.3d 643, 654-55 (4th Cir. 2019); Anderson v. Laboratory

Corporation of America Holdings, 2023 WL 1970953 (M.D.N.C. Feb. 13, 2023) (class not

ascertainable where plaintiffs “failed to identify an objective and administratively feasible way”

to identify class members).

As described above, Plaintiffs seek to represent two broad classes, and for both of them

it will be difficult, if not practically impossible, to identify the members of the proposed class.

Plaintiffs define the "Contract Holder Class" as including everyone who entered into a contract

for burial services at the Cemetery since 1969. However, even if the names of all those who

entered into contracts related to the more than 40,000 burial plots at the Cemetery3 could be

found through “business records” (which Plaintiffs allege are either non-existent or unreliable),4

3 Plaintiffs allege that 28,000 persons have been buried at the Cemetery, but “Defendants sold

more than 40,000 burial plots.” SAC at ¶ 40.

4 To be clear, the Court does not mean to suggest that Defendants’ alleged negligence in

maintaining records inures to their benefit in this analysis. (In fact, the allegation makes the Court

that would not necessarily identify any specific person to whom Defendants are allegedly liable

for breach of contract. That is, there is insufficient evidence (beyond the conclusory allegation

that the Cemetery’s record keeping is such a mess that no one can determine with any certainty

where any person is buried) to support a finding that Defendants breached every single contract

for the past 55 years. This is particularly true where the Contract Holder Class as defined in the

SAC includes many contracting parties (approximately 12,000 according to Plaintiffs’

allegations) who have not even used the burial services they contracted to receive. Thus, being

able to discern who entered into contracts that might plausibly have been breached over such a

long period would be a massive and doubtful undertaking that will not “readily identify”

members of Plaintiffs’ proposed (breach of) contract class.

Similar concerns extend to Plaintiffs’ proposed “Next of Kin Class.” This class also

reaches back to 1969 and indeed is even broader than the “Contract” class because it presumably

includes all those who might claim to be “next of kin” to those buried in the Cemetery. Again,

Plaintiff suggests “business records” along with “statutory and common law” definitions might

be used to identify class members, but it is unclear if that is practically possible.5 Moreover, the

definition of this class raises the same issue as to how to identify “next of kin” who are not only

reluctant to find that the class is not reasonably ascertainable). Rather, given the more than five

decades long class period proposed by Plaintiffs, whether any business would maintain accurate

contractual records for that long would be uncertain.

5 In North Carolina, “next of kin” “shall be construed to be to those persons who would take under

the law of intestate succession, unless a contrary intention appears by the instrument.” N.C. Gen.

Stat. § 41-6.1. In effect, North Carolina law makes “next of kin” synonymous with an individual’s

“heirs.” See Rawls v. Rideout, 74 N.C. App. 368, 371 (1985). Thus, to determine who any specific

decedent’s next of kin is for purposes of identifying putative class members, this Court might need

to conduct mini probate trials to determine each decedent’s heirs under the laws of intestate

succession. This only increases the difficulty of determining the members of the putative class.

See Krakauer, 925 F.3d at 658 (class treatment inappropriate where identifying members of class

would require “extensive and individualized fact-finding or mini-trials”).

merely related to someone buried at the Cemetery, but actually have a potential legal claim. In

sum, the Court finds that defining a class of the “next of kin” of everyone who has been buried

at the Cemetery over the past 55 years is not a reasonably “ascertainable” class.

b) Numerosity

Rule 23(a)(1) “requires that a class be so numerous that the joinder of all members is

impracticable.” In re Zetia (Ezetimibe) Antitrust Litig., 7 F.4th 227, 234 (4th Cir. 2021) (quoting

Fed. R. Civ. P. 23(a)(1)). “A party seeking class certification must affirmatively demonstrate his

compliance with the Rule, and must do so with evidentiary proof.” Id. (internal citations omitted.)

Thus, to establish numerosity, Plaintiffs must “show that the other class members exist and that

their joinder is impracticable; a court may not rely on mere speculation that numerosity has been

satisfied.” Yates v. NewRez, LLC, No. TDC-21-3044, 2023 WL 5108803, at *3 (D. Md. Aug. 9,

2023). However, “as a general guideline. . . a class that encompasses fewer than 20 members will

likely not be certified . . . while a class of 40 or more members raises a presumption of

impracticability of joinder based on number alone” In re Zetia, 7 F. 4th at 234 (quoting 1 Newberg

on Class Actions §3:12 (5th ed. 2021)). “Plaintiffs need not establish the precise number of class

members at the certification stage to satisfy the numerosity requirement so long as they provide a

reasonable estimate of the number of class members.’’ Id.

As discussed elsewhere, it is unclear how many members of the proposed classes share the

various specific claims against the Defendants; however, for purposes of this analysis the Court

finds that Plaintiffs have alleged sufficient evidence that joinder of all members of the class (if

they could be ascertained) would be “impracticable.” Given the thousands of graves and the

widespread wrongdoing alleged in the affidavits of former employees, it seems likely that the

number of class members would exceed the level (of a few dozen)6 at which individual joinder

would be presumptively impracticable.

c) Commonality

The commonality requirement of Fed. R. Civ. P. 23(a)(2) requires that Plaintiffs show “that

there are questions of law or fact common to the class. Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

338, 349 (2011). Commonality requires the plaintiff to demonstrate that the class members “have

suffered the same injury,” not “merely that they have all suffered a violation of the same provision

of law.” Id. at 349-350 (Noting that “Title VII, for example, can be violated in many ways … the

mere claim by employees of the same company that they have suffered a Title VII injury … gives

no cause to believe that all their claims can productively be litigated at once.”). Thus, the

“common” contentions at the heart of a certifiable class must “be of such a nature that [they are]

capable of classwide resolution—which means that determination of its truth or falsity will resolve

an issue that is central to the validity of each one of the claims in one stroke.” Id. at 350 (“What

matters to class certification ... is not the raising of common ‘questions'—even in droves—but

rather, the capacity of a class-wide proceeding to generate common answers apt to drive the

resolution of the litigation.”).

Here, Plaintiffs “commonly” allege that Defendants significantly mishandled the

operations of the Cemetery, but they also allege that their mismanagement injured Plaintiffs and

the putative classes in myriad, different ways. Thus, issues such as the existence and interpretation

of the terms of the Cemetery contracts and the scope of the Defendants’ alleged fiduciary and other

duties to the classes raise “common” questions and can generate common answers, while the

6 Also, in removing this action Defendant Carothers represented to the Court that the number of

proposed class members exceeded 100, as required under CAFA.

overall resolution of any individual class member’s claims will likely turn on the individual

circumstances of each class member. Therefore, the Court will hold, for the purposes of its Rule

23(a)(2) analysis, that there is a sufficient minimum of “commonality.” However, the Court notes

that the presence of significant individual issues is highly relevant to its ultimate decision not to

certify a class under Rule 23(b)(3). See Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 n.4 (4th

Cir. 2001) (stating that in “a class action brought under Rule 23(b)(3), the ‘commonality’

requirement of Rule 23(a)(2) is ‘subsumed under, or superseded by, the more stringent Rule

23(b)(3) requirement that questions common to the class predominate over’ other questions”

(quoting Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 609 (1997))); Jackson v. Am. Elec. Warfare

Assocs., Inc., No. CV TDC-22-1456, 2024 WL 556230, at *4 (D. Md. Feb. 12, 2024).

d) Typicality

Rule 23(a)(3) requires that, in order to maintain a class action, a plaintiff must show that

his claims “are typical of the claims. . . of the class.” Typicality requires that the plaintiff's claim

“cannot be so different from the claims of absent class members that their claims will not be

advanced by” proof of the plaintiff's own individual claim. Deiter v. Microsoft Corp., 436 F.3d

461, 466-67 (4th Cir. 2006); Jackson, 2024 WL 556230, at *4. A class representative must

“possess the same interest and suffer the same injury” as the class members. Gen. Tel. Co., 457

U.S. at 156; Soutter v. Equifax Info. Serv., LLC, 498 Fed. Appx. 260 (4th Cir. 2012) (typicality

“‘goes to the heart of a representative[s] ability to represent a class.’”); Deiter, 436 F.3d at

467 (class certification will be denied when a variation in claims between the class representative

and the putative class members “strikes at the heart of the respective causes of action”). The

claims do not have to be factually or legally identical, but the class members’ claims should be

fairly encompassed by those of the class representative. Broussard v. Meineke Disc. Muffler

Shops, Inc., 155 F.3d 331, 344 (4th Cir. 1998). “[T]he fact that the named plaintiffs have the

same general complaint against the defendant does not render their claims typical.” Waters v.

Electrolux Home Prod., Inc., No. 5:13CV151, 2016 WL 3926431, at *5 (N.D.W. Va. July 18,

2016).

The presence of individualized issues makes it difficult for a class representative to

demonstrate typicality. Electrolux, 2016 WL 3926431 at * 5 (“The named plaintiffs are not typical

of the proposed classes “because the proposed class members' substantive claims depend on

individual permutations .... Each plaintiff must individually prove that he or she experienced

personal injuries and/or property damage which was proximately caused by the use of the

defendant's products.”). In this action, Plaintiffs allege that Defendants’ “misconduct is

staggering in scope” and have “failed to disclose and have intentionally concealed thousands of

material and substantial facts that relate to grave sites at York Memorial Cemetery.” SAC at ¶

47 (emphasis added). Then, they allege at least 36 different ways in which Defendants wronged

the Plaintiffs and other class members. However, none of the named Plaintiffs was the alleged

victim of all of this misconduct nor have Plaintiffs alleged that at least one of them suffered each

of the alleged wrongs. Thus, while a few of the Plaintiffs allege they have been personally injured

in a few of the ways in which Defendants allegedly hurt class members, the Court cannot

conclude that Plaintiffs’ claims are “typical” of the broadly alleged claims of the proposed classes

sufficiently to find that Plaintiffs have satisfied the requirement of “typicality.”7

7 For example, Plaintiff, Simpson is not even a member of any class he seeks to represent. He does

not allege that he purchased interment rights, entered into any agreement authorizing members

of his family to be interred or that he is an “authorized representative” or “next of kin” of his

“cousins, aunts, uncles and several other family members” buried at the Cemetery. Simpson also

does not specifically allege that he was injured in any of the multitude of ways he claims the class

members were injured.

e) Adequacy of Class Representatives

The final requirement of Rule 23(a) is that the representative parties must “fairly and

adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Primarily, the adequacy

inquiry under Rule 23(a)(4) “serves to uncover conflicts of interest between named parties and the

class they seek to represent.” Sharp Farms v. Speaks, 917 F.3d 276, 295 (4th Cir. 2019) (quoting

Amchem, 521 U.S. at 625). For a conflict of interest to defeat adequacy, the “conflict must be

fundamental.” Id. Such a conflict does not exist where the class members “share common

objectives and the same factual and legal positions” and have “the same interest in establishing the

liability” of the defendants. Id. The adequacy requirement also requires a finding of “class

counsel's competency” to represent the class. 1988 Tr. for Allen Children Dated 8/8/88 v. Banner

Life Ins. Co., 28 F.4th 513, 524 (4th Cir. 2022). “In the absence of proof to the contrary, courts

presume that class counsel is competent and sufficiently experienced to prosecute vigorously the

action on behalf of the class.” Hewlett v. Premier Salons Int'l Inc., 185 F.R.D. 211, 218 (D. Md.

1997).

Here, while the Court finds that Plaintiffs’ allegations are not sufficiently “typical” of the

classes they seek to represent, Plaintiffs’ interests do not appear to be in conflict with other putative

class members. Also, the Court finds that class counsel has (and would continue to) competently

represent the class. Therefore, the Court concludes that, if the other Rule 23(a) requirements were

satisfied (which they are not) then Plaintiffs could fairly and adequately represent the proposed

classes.

2. Rule 23(b) Class Actions

Even though Plaintiffs have failed to meet all the Rule 23(a) prerequisites for class

certification, which alone requires the Court to decline to certify a class, the Court will also address

Plaintiffs’ Rule 23(b) arguments. Plaintiffs seek to pursue a class action under both Rule

23(b)(1)(A) and 23(b)(3). The Court finds that it would be inappropriate to certify a class under

either rule.

a) 23(b)(1)(A) – Risk of Incompatible Standards of Conduct

Plaintiffs seek certification under Rule 23(b)(1)(A). “In essence, Rule 23(b)(1)(A)

considers possible prejudice to the defendants, while 23(b)(1)(B) looks to possible prejudice to the

putative class members.” See Tatum v. R.J. Reynolds Tobacco Co., 254 F.R.D. 59, 66 (M.D.N.C.

2008). However, beyond arguing that the same contracts apply to all of the Cemetery’s gravesites

and that Defendants are subject to the same standard of care as cemetery owners (which would of

course be true for all cemetery owners or those who are subject to any generally applicable statute),

Plaintiffs do not articulate how Defendants would be held to “incompatible standards of conduct”

if, in individual actions, some class members proved a breach of contract, statutory violation or

common law wrong and others did not. See Newberg at § 4.1. (Noting that 23(b)(1) class actions

generally do not cover situations in which multiple plaintiffs sue a single defendant for money

damages with some plaintiffs prevailing and some losing because the fact that the defendant must

pay some claimants but not others does not create the danger at which the Rule is aimed). Indeed,

Defendants argue that instead of prejudicing the Defendants, individual actions will allow them to

assert individual defenses and that different results as to different class members in individual

actions would not necessarily lead to confusion concerning how the Defendants were required to

operate the Cemetery. Accordingly, Plaintiffs cannot properly maintain a Rule 23(b)(1) class

action.

b) 23(b)(3) – Action for Money Damages

Plaintiffs also seek certification of a class under Rule 23(b)(3). In addition to establishing

the requirements of Rule 23(a) have been met, to obtain certification under 23(b)(3) Plaintiffs bear

the burden of showing both that “(1) questions of law and fact common to class members

predominate over any questions affecting only individual class members, and (2) that a class action

is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.

R. Civ. P. 23(b)(3). Because the Court finds that the class action proposed by Plaintiffs fails both

the prongs of “predominance” and “superiority” it will decline to certify a class under Rule

23(b)(3).

First, questions affecting individual class members rather than common questions

predominate. The predominance element tests “whether proposed classes are sufficiently cohesive

to warrant adjudication by representation.” Amchem, 521 U.S. at 623. Predominance fails where

resolution of the purported liability to each class member turns on individualized circumstances.

See Lienhart, 255 F.3d at 149; Farrar & Farrar Dairy, Inc. v. Miller-St. Nazianz, Inc., 254 F.R.D.

68, 75 (E.D.N.C. 2008) (no predominance where causation and affirmative defenses would

“dominate most every class member’s case”). As explained above, while there are some common

issues, the need to consider and resolve claims on an individual basis pervades Plaintiffs’ claims.

The Court will need to determine, for each proposed class member, 1) their relationship with the

person buried at the Cemetery; 2) if, how and when8 Defendants allegedly breached a contract,

8 Defendants have raised numerous defenses related to the statute of repose and statutes of

limitations, which would need to be resolved for each class member (particularly as the proposed

“desecrated” their buried relative’s grave or otherwise harmed the class member; 3) the nature and

amount of damages they claim to have suffered; and 4) particularized evidence supporting any

claim of reliance on misrepresentations. In other words, even though Defendants may have acted

in similarly wrongful ways with respect to many people (and indeed there may well be little dispute

that much of the conduct alleged, if it occurred, was wrongful), to determine if any specific class

member is entitled to relief (and how much) will require the Court to determine if the wrongful

conduct actually happened to their loved one, which would involve the resolution of numerous

questions based on a particular grave, etc. Therefore, Plaintiffs cannot satisfy the “predominance”

element of a Rule 23(b)(3) class action.

Rule 23(b)(3) also requires that a class action be “superior to other available methods for

fairly and efficiently adjudicating the controversy.” In evaluating the superiority of a class action,

a court should “compare the possible alternatives to determine whether Rule 23 is sufficiently

effective to justify the expenditure of the judicial time and energy that is necessary to adjudicate a

class action and to assume the risk of prejudice to the rights of those who are not directly before

the court.” Stillmock v. Weis Mkts., Inc., 385 Fed. Appx. 267, 274 (4th Cir. 2010). Rule

23(b)(3)(A)-(D) sets forth a non-exhaustive list of factors for the Court to consider, including the

interests of class members to bring individual claims, the extent to which any such cases have

already been filed, the desirability of litigating all the claims in a single forum and the difficulties

in manageability of the case.

classes begin in 1969 and continue to the present). More generally, notwithstanding evidence of

wrongful conduct generally, a class seeking individual monetary damages “cannot be certified ...

[if a defendant] will not be entitled to litigate its statutory defenses to individual claims,” Dukes,

564 U.S. at 367.

Those factors weigh against a finding that a class action would be “superior.” In making

their allegations, Plaintiffs emphasize the personal and emotional nature of their claims. The Court

readily accepts that claims related to the final resting place of a loved one is deeply personal, but

this supports a conclusion that each individual may well have an interest in controlling their

separate claim. See Payne v. Tri-State CareFlight, LLC, 332 F.R.D. 611, 678 (D.N.M. 2019) (“The

proposed class members’ emotional connection to the case may also be relevant: the stronger the

attachment, the more reticent the court should be to certify the case.”). Next, as noted above,

another case asserting nearly identical claims against the same defendants on behalf of five

plaintiffs (who are represented by the same counsel as Plaintiffs here) was filed on the same day

in the same state court. And, with respect to the third factor, although there would be a benefit in

similar claims being resolved in the same forum, it appears that would happen regardless of class

certification because individual actions would likely be filed in the same state court that the prior

actions involving the Cemetery have been filed.

Finally, for all the reasons discussed above, the prevalence of individual issues, which may

even necessitate “mini-trials” or separate adjudications (not to mention the difficulties in

determining information related to individual graves), suggests that class litigation would be

exceedingly hard to manage. See Farrar, 254 F.R.D. at 74, n.4 (“difficulties in managing a class

action in which the court would need to address individual issues over and over again would far

outweigh any marginal increase in judicial efficiency that might result from class certification.”);

Gaston v. LexisNexis Risk Sols., Inc., 483 F. Supp. 3d 318, 345 (W.D.N.C. 2020) (concluding that

class action was “not a superior framework in which to adjudicate Plaintiffs’ money damages

claims because of the Defendants’ intention to seek an individualized assessment of the right to

recover such damages”); Gresser v. Wells Fargo Bank, N.A., No. 12- 987, 2014 WL 1320092, *9

(D. Md. March 31, 2014) (individualized inquiries necessary to resolve class members’ claims

rendered class “unmanageable.”). In sum, the Court finds that a class action under these

circumstances would not be “superior” to individual actions.

B. Remand of Motions to Dismiss to State Court

As already noted several times, this is an intensely local dispute in which numerous claims

are alleged involving North Carolina common law, statutes and public policy. The sole grounds

for federal jurisdiction is CAFA, 28 U.S.C. § 1332(d)(2), which gives this Court original

jurisdiction over any class action in which the matter in controversy exceeds $5,000,000 and there

is “minimal diversity” (any member of a plaintiff class is a citizen of a state different from any

defendant). Having now made a final determination that this matter cannot proceed as a class

action, jurisdiction cannot be maintained under Section 1332(d). Therefore, the Court must decide

whether it will continue to exercise jurisdiction over Plaintiffs’ state court claims or remand the

action to state court. See 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that

the district court lacks subject-matter jurisdiction, the case shall be remanded.”). Indeed,

Defendants acknowledged at oral argument that if no class was certified then the Court had the

discretion to send the case back to state court (although, of course, indicating their preference for

the Court retaining jurisdiction just long enough to dismiss Plaintiffs’ claims). See Doc. No. 69 at

69. Because the basis for federal jurisdiction doesn’t exist, and the merits of this matter should be

resolved in the state courts which are already well acquainted with the very serious allegations

underlying this dispute, the Court will remand this matter to the Superior Court for Mecklenburg

County, North Carolina.

The Fourth Circuit has not decided the questions of whether Article III permits jurisdiction

to be conferred on a federal court when an action is merely alleged to fall within CAFA

jurisdiction, but has been held not actually to do so. Or, put somewhat differently, must9 a district

court, on finding that a case cannot proceed as a class action, still adjudicate state law claims rather

than remand them to state court.

A number of district courts have concluded that a determination that a class cannot be

certified defeats subject matter jurisdiction under CAFA. See Rovinelli, 2021 WL 752822, at *13–

16; Avritt v. Reliastar Life Ins. Co., No. 07-cv-1817 (JNE/JJG), 2009 WL 1703224, at *1–2 (D.

Minn. June 18, 2009); Muehlbauer v. Gen. Motors Corp., No. 05 C 2676, 2009 WL 874511, at *9

(N.D. Ill. Mar. 31, 2009); Salazar v. Avis Budget Grp., Inc., No. 07-cv-0064-IEG (WMC), 2008

WL 5054108, at *5–6 (S.D. Cal. Nov. 20, 2008); Jones v. Jeld-Wen, Inc., No. 07-22328-CIV,

2008 WL 4541016, at *3 (S.D. Fla. Oct. 2, 2008); Falcon v. Philips Elecs. N. Am. Corp., 489 F.

Supp. 2d 367, 368 (S.D.N.Y. 2007). These courts ground their decisions on the plain language of

the statute (CAFA provides original jurisdiction in 28 U.S.C. § 1332(d)(8) “to any class action

before or after the entry of a class certification order by the court with respect to that action”), the

limited jurisdiction of the federal courts, and a conclusion that “where there is no reasonably

foreseeable possibility that the plaintiffs could propose a satisfactory class in the future, there is

not and never was CAFA jurisdiction.” See Rovinelli, 2021 WL 752822 at *16; Falcon, 489 F.

Supp. 2d at 368 (finding that CAFA jurisdiction is terminated if class certification is denied on a

9 It is clear that district courts can generally retain jurisdiction over state-law claims with minimally

diverse parties when the class-action component of the complaint is dismissed after the case is

removed to federal court. See Rovinelli v. Trans World Ent. Corp., No. CV 19-11304-DPW, 2021

WL 752822, at *13–16 (D. Mass. Feb. 2, 2021) (collecting cases at n.11).

“basis that precludes even the reasonably foreseeable possibility of subsequent class

certification”); Avritt, 2009 WL 1703224, at *2 (concluding that, “when class certification has

been denied and there is no reasonably foreseeable possibility that a class could ever be certified,

jurisdiction under CAFA does not exist”).

The Court agrees with these decisions. Where, as here, a class action is merely alleged but

will never be certified because of fundamental impediments then the Court’s subject matter

jurisdiction ought not continue after a final resolution of the question of class certification.

Otherwise, actions could be removed and maintained in federal court with no basis other than

inadequate allegations of a putative class. See, e.g., F5 Capital v. Pappas, 856 F.3d 61, 77 n.14

(2d Cir. 2017) (“We do not suggest that any class action pleading – even one lacking a good faith

basis in law and fact – can support the continued exercise of CAFA jurisdiction.”); Metz v. Unizan

Bank, 649 F.3d 492, 501 n. 4 (6th Cir. 2011) (“Of course, if the jurisdictional allegations are

frivolous or defective from the outset, then jurisdiction never existed in the first place, regardless

of the plaintiff's invocation of a class action under CAFA.”); Rovinelli, 2021 WL 752822, at *16.

Moreover, the specific circumstances of this case strongly counsel in favor of remand.

Again, this is a matter of particularly local concern involving serious allegations of wrongdoing,

governed by state law and alleged state public policy, and similar cases involving the Cemetery

are pending and have already been decided in North Carolina’s courts. Therefore, the Court will

remand this action to state court for further proceedings. With respect to the pending motions to

dismiss, the Court will not reach (or express any view on) their merits and deny them as moot.

Without federal class action status, there can be no justification for the exercise of further

jurisdiction, especially in ruling on whether Plaintiffs’ claims should be dismissed or allowed to

proceed.

IV. ORDER

NOW THEREFORE IT IS ORDERED THAT:

1. Plaintiffs’ Motion to Certify Class (Doc. No. 30) is DENIED;

2. Defendants’ Motions to Dismiss (Doc. Nos. 29, 32) are DENIED as moot; and

3. The Clerk is directed to REMAND this action to the Superior Court for

Mecklenburg County, North Carolina and thereafter close this matter in accordance

with this Order.

SO ORDERED ADJUDGED AND DECREED.

Signed: March 28, 2024

Kenneth D. Bell

United States District Judge □□ i

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