CRAIG

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

TUSHAWN CRAIG, )

MARQUETTA STOKES, )

)

Plaintiffs, )

)

v. ) Case No. 1:23-cv-01575-TWP-MJD

)

CORNERSTONE TRADING GROUP, LLC, )

SETH SMITH, )

CITY OF RICHMOND, INDIANA, )

)

Defendants. )

________________________________________ )

)

CITY OF RICHMOND, INDIANA, )

)

Cross Claimant, )

)

v. )

)

CORNERSTONE TRADING GROUP, LLC, )

SETH SMITH, )

MY-WAY TRADING, INC., )

)

Cross Defendants. )

________________________________________ )

)

CORNERSTONE TRADING GROUP, LLC, )

)

Third Party Plaintiff, )

)

v. )

)

CITY OF RICHMOND, INDIANA, )

)

Third Party Defendant. )

________________________________________ )

ALLEN WELLMAN HARVEY KEYES

COOLEY, LLP,

Interested Party.

ORDER ON PENDING MOTIONS

This matter is before the Court on Defendant City of Richmond, Indiana's (the "City")

Motion to Decertify the Class (Filing No. 308), which is joined by Defendants Cornerstone Trading

Group, LLC ("CTG"), Seth Smith ("Smith"), and My-Way Trading, Inc. ("My-Way Trading")

(these three together, "My-Way") (Filing No. 311); and a combined Motion for Reconsideration of

the Court's Summary Judgment Order or in the alternative, Motion to Certify the Order for

Interlocutory Appeal (Filing No. 312). Plaintiffs Tushawn Craig ("Craig") and Marquetta Stokes

("Stokes") (together, "Plaintiffs") initiated this lawsuit on behalf of themselves and all others

similarly situated against Defendants CTG, Smith, and the City (the former two together,

"Cornerstone") alleging damages for the Defendants' failure to exercise reasonable care in their

engagement in ultra-hazardous activities, which resulted in a catastrophic fire in Plaintiffs'

neighborhood (Filing No. 1-2 at 23–30). Thereafter, CTG filed a Third-Party Complaint against

the City, id. at 69, and the City filed Crossclaims against My-Way (Filing No. 18). The Court

granted Plaintiffs' motion to certify the class on September 29, 2025 (Filing No. 287), and granted

in part and denied in part the City's summary judgment motion on March 27, 2026 (Filing No.

304). The City and My-Way now seek decertification of the class and reconsideration of the

Summary Judgment Order or in the alternative to certify the Summary Judgment Order for

interlocutory appeal. For the reasons discussed below, these Motions are denied.

I. BACKGROUND

The following facts are not meant to be a complete recitation of all that has transpired in

this case. Rather, the Court will recite only those facts relevant to the instant Motions.

A. Factual Background

In 2006, Smith, through his company My-Way Trading, began operating a plastics

brokerage business at 308 NW F Street (the "308 Property") in Richmond, Indiana. In December

2006, My-Way Trading purchased the 308 Property (Filing No. 241 at 10). At that time, two

neighboring parcels, 310 NW F Street (the "310 Property") and 358 NW F Street (the "358

Property") (together, the "310/358 Properties"), were owned and operated by Hoffco/Comet

Industries, Inc., which ceased operating the 310/358 Properties in 2010. Id. In 2012, My-Way

began expanding its activities onto the 310/358 Properties without owning or leasing the properties

or otherwise obtaining written consent to do so. Id.

In May 2019, Doug Gardner ("Gardner"), the Deputy Chief of Fire Prevention for the City,

inspected the 308 Property and the 310/358 Properties (Filing No. 251 at 8). Based on Gardner's

inspection of the three properties, the City's Unsafe Building Commission ("Building

Commission") issued preliminary orders to CTG and AFG Investment Fund1––the entities who

then owned the properties––on July 24 and 25, 2019, to "[r]epair, [d]emolish, or [v]acate" the

properties. Id. at 9.

The Building Commission held a hearing for the preliminary orders on September 24, 2019

(Filing No. 251-6 at 3 ¶8). It then issued orders finding the three properties "unsafe" and that the

"cumulative effect of the code violations present" on the premises rendered "the premises unsafe,

substandard, or a danger to the health and safety on the public as defined by I.C. § 36-7-94." Id. at

4–5 ¶¶17–18. The Building Commission affirmed the orders to repair or demolish and vacate the

three properties. Id. at 5 ¶18.

My-Way filed an action in state court seeking de novo review of the Building Commission

orders. The Wayne County Circuit Court affirmed the Building Commission orders finding that

the evidence presented at the hearings "clearly established that the [three properties] are unsafe to

1 AFG Investment Fund was the entity that owned the 310 and 358 Properties at the time the Building Commission

orders were issued. Wayne County received the 310 and 358 Properties from AFG following a tax sale, and the City

subsequently took title to the properties via a quitclaim deed in March 2021 (Filing No. 251-6).

people and property; constitute a fire hazard; are a hazard to public health; constitute a nuisance;

and are dangerous to people or property because of violations of statute and City Ordinance

concerning building condition and maintenance." Id. at 8 ¶35.

In 2018, the City applied for and received a brownfield community assessment grant from

the U.S. Environmental Protection Agency ("EPA") in the amount of $300,000.00 for investigating

brownfields, including the 310/358 Properties (Filing No. 241 at 10).2 On October 27, 2020, City

Attorney Andrew Sickmann ("Sickmann") sent a letter to My-Way demanding it vacate the

310/358 Properties (Filing No. 238-6 at 2–3 ¶9). On March 2, 2021, Wayne County acquired the

310/358 Properties by way of tax sale (Filing No. 251 at 10). Then, on March 22, 2021, Wayne

County transferred ownership of the 310/358 Properties to the City. Id. On June 16, 2021, My-

Way responded to Sickmann's letter stating that My-Way was still attempting to comply with the

Building Commission orders (Filing No. 238-6 at 3).

On July 9, 2021, a City employee accompanied two inspectors to perform a site

reconnaissance of the 310/358 Properties to determine, among other things, if there were

Recognized Environmental Conditions that might qualify the City as an innocent landowner

pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (Filing

No. 251 at 11). However, the site reconnaissance was limited because access to the majority of the

main site building was not possible due to the accumulation of plastic debris and storage. Id.

Reconnaissance was also difficult because Smith kept the 310/358 Properties under lock and key,

and five million pounds of materials remained in the buildings (Filing No. 238-1 at 678–685, pp.

669:8–676:20).

2 A brownfield is an abandoned, idled, or underused industrial and commercial facility/site where expansion of

redevelopment is complicated by real or perceived environmental contamination. EPA's Brownfields initiative helps

communities mitigate potential health risks and restore the economic viability of such areas or properties. See

https://cimc.epa.gov/ords/cimc/f?p=121:19::::0:P0_GRANT_ID:69604954 (last accessed June 10, 2026).

The City's Final Technical Report of the site was completed on December 29, 2022, and

submitted to the EPA (Filing No. 251-10). The Final Technical Report found that Smith's company,

My-Way Trading, had "created a hostile and potentially unsafe condition for site reconnaissance"

and "the volume of plastics storage inside and outside of structures complicated reconnaissance

conditions." Id. at 9.

On April 11, 2023, the industrial warehouse at the 358 Property—"containing large

amounts of chipped, shredded, and recycled plastics"—caught fire (Filing No. 251 at 11). A four-

alarm catastrophic fire alarm was issued, involving the burning of ordinary combustibles,

petroleum products, energized electrical materials, and combustible metals (Filing No. 251-11 at

33, pp. 127:2–15), with the plastics waste and other refuse contributing to the fire. Id. at 42, pp.

165:14–21. While the cause of the fire may be disputed, Gardner determined the origin to be the

exterior of the building at the 358 Property, which spread to the 310 Property and the 308 Property

(Filing No. 251-5 at 6.) As a result of the fire, the Wayne County Emergency Management Agency

issued an evacuation order of a half-mile radius from the origin of the fire—the 358 Property—

resulting in the evacuation of up to 2,000 individuals (Filing No. 251-5 at 5, pp. 18:19–19:8, Filing

No. 251-3 at 18). The evacuation order remained in place for five days, ultimately being lifted on

April 16, 2023. Id. at 6, pp. 24:12–23. The smoke from the fire caused air quality concerns in the

area and significant disruption to the community. Id.

The debris from the fire contained asbestos, hydrogen cyanide, benzene, chlorine, and

carbon monoxide in the evacuation zone (Filing No. 251-13). After people were allowed to return

to their homes, they were directed to clean the interior of their homes, arrange for the EPA to clean

the exterior of their properties as it may contain asbestos, and to not mow their lawns or let their

pets roam freely in their yards until this was completed (Filing No. 251 at 13). Plaintiffs own and

reside in homes that were subject to evacuation as a result of the April 11, 2023 fire (Filing No. 72

at 4). Craig was injured when he fell off a ladder in late July 2023 while cleaning his home's gutters

and power washing his white house because of the "dark color" of the homes in the area (Filing

No. 251-15 at 26).

Plaintiffs' alleged damages include the following categories: (a) loss of use of land; (b)

costs of housing during the fire; (c) lost wages; (d) medical costs for Craig only; (e) home

repairs/cleaning; (f) groceries, meals, and other purchases required during the fire; (g) pet

boarding; and (h) pain and suffering/emotional damages (Filing No. 238-10 at 124:23–125:5,

129:19–134:5) (Filing No. 238-11 at 36, 103, 121:6–130:14).

B. Procedural History

On April 19, 2023, Craig sent a tort claim notice to the City (Filing No. 128-1 at 6). On

April 20, 2023, the Plaintiffs filed their original Complaint against Cornerstone (Filing No. 1).

Stokes also promptly sent a tort claim notice to the City (Filing No. 128-1 at 10). Plaintiffs filed

an Amended Complaint adding claims against the City on July 17, 2023, and CTG filed a Third-

Party Complaint against the City in state court (Filing No. 1-2 at 69). That action was removed to

federal court on September 1, 2023 (Filing No. 1). The City filed a Crossclaim against My Way on

October 10, 2023 (Filing No. 18). Plaintiffs' motion for leave to file a Second Amended Complaint

(Filing No. 57), was granted on April 22, 2024 (Filing No. 70).

Plaintiffs filed the operative Second Amended Class Action Complaint the following day,

April 23, 2024 (Filing No. 72). The Second Amended Class Action Complaint alleges that

"Defendants' tortious conduct of failing to maintain the Industrial Facility and the hazardous

contents therein set in motion a chain of events resulting in a widespread fire which released

noxious fumes and hazardous materials including asbestos into the air and ground water of the

surrounding area." Id. at 3. On September 13, 2024, Plaintiffs filed a Motion to Certify Class

(Filing No. 116), and the several Motions before the Court followed. Plaintiffs' Motion to Certify

Class was granted on September 29, 2025 (Filing No. 287).

The Plaintiffs' Second Amended Class Action Complaint alleges the following Counts

against CTG, Smith, and the City: Count I: Strict Liability (for Ultra-Hazardous Activities); Count

II: Negligence; Count III: Res Ipsa Loquitur; Count IV: Private Nuisance; Count V: Trespass;

Count VI: Battery; and Count VII: Punitive Damages (see Filing No. 72). The City moved for

summary judgment on all Plaintiffs' claims against it (Filing No. 237); and Cornerstone moved for

partial summary judgment, seeking judgment in its favor as to all claims asserted against Smith in

his individual capacity (Filing No. 232).

On March 27, 2026, the Court ruled on the City's and Cornerstone's motions for summary

judgment. The Court dismissed with prejudice Counts I, III, V, and VI against the City (Filing No.

304 at 60–61). In addition, the Court granted summary judgment in favor of the City for personal

injury damages requiring expert testimony. However, the Court denied summary judgment for

Count II: Negligence, and Count IV: Private Nuisance, against the City. Id. at 61. The Court found

that those claims remained for settlement or trial. Id. In addition, all claims of the Plaintiffs' Second

Amended Class Action Complaint against CTG and Smith remain. In the pending motions, the

Defendants seek reconsideration of the Summary Judgment Order or alternatively, interlocutory

appeal. Defendants also seek decertification of the class.

II. LEGAL STANDARD

A. Motions to Reconsider

Motions to reconsider "serve a limited function: to correct manifest errors of law or fact or

to present newly discovered evidence." State Farm Fire & Cas. Co. v. Nokes, 263 F.R.D. 518, 526

(N.D. Ind. 2009). The motion is to be used "where the Court has patently misunderstood a party,

or has made a decision outside the adversarial issues presented to the Court by the parties, or has

made an error not of reasoning but of apprehension." Bank of Waunakee v. Rochester Cheese Sales,

Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citation omitted). A motion to reconsider under Rule

54(b) may also be appropriate where there has been "a controlling or significant change in the law

or facts since the submission of the issue to the Court." Id. (citation omitted).

The purpose of a motion for reconsideration is to ask the Court to reconsider matters

"properly encompassed in a decision on the merits." Osterneck v. Ernst & Whinney, 489 U.S. 169,

174 (1989). The motion "will be successful only where the movant clearly establishes: (1) that the

court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded

entry of judgment." Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013) (citation

and quotation marks omitted).

Furthermore,

Motion practice is not an exercise in trial and error or maybe-maybe not where a

party can reserve arguments to present later if earlier ones fail. The Court is entitled

to assume that, if [a party] had viable arguments to support its claim, it would have

presented them. The Court will not conduct [a party's] research and build [the

party's] analysis in order to find facts and law to support [the party's] own claims.

Brownstone Publ'g, LLC v. AT&T, Inc., No. 07-cv-1630, 2009 U.S. Dist. LEXIS 25485, at *2 (S.D.

Ind. Mar. 24, 2009). A motion to reconsider "is not an opportunity to relitigate motions or present

arguments, issues, or facts that could and should have been presented earlier." Id.

B. Motions to Decertify a Class

Federal Rule of Civil Procedure 23(c)(1)(C) provides that orders determining whether to

certify an action as a class action "may be altered or amended before final judgment." "[A] district

court has broad discretion to determine whether certification of a class is appropriate." Retired Chi.

Police Ass'n v. City of Chi., 7 F.3d 584, 596 (7th Cir. 1993). Under Rule 23(c)(1)(C), the Court

retains authority to modify or vacate a class certification at any time prior to final judgment. "[T]he

district court has the power at any time before final judgment to revoke or alter class certification

if it appears that the suit cannot proceed consistent with Rule 23's requirements." All. to End

Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977). "Even after a certification order is

entered, the judge remains free to modify it in the light of subsequent developments in the

litigation." Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982).

On one hand, "a favorable class determination by the court is not cast in stone. If the

certification of the class is later deemed to be improvident, the court may decertify, subclassify,

alter the certification, or permit intervention." Eggleston v. Chi. Journeymen Plumbers' Local

Union No. 130, 657 F.2d 890, 896 (7th Cir. 1981) (citations omitted); see also Ellis v. Elgin

Riverboat Resort, 217 F.R.D. 415, 419 (N.D. Ill. 2003) ("The court's initial certification of a class

'is inherently tentative.'" (citation modified)). "[W]hen a defendant moves to decertify a class, 'a

district court must make whatever factual and legal inquiries are necessary to ensure that

requirements for class certification are satisfied before deciding whether a class should [remain]

certified, even if those considerations overlap the merits of the case.'" Jacks v. DirectSat USA,

LLC, 118 F.4th 888, 895 (7th Cir. 2024) (alteration in original) (quoting Am. Honda Motor Co. v.

Allen, 600 F.3d 813, 815 (7th Cir. 2010)).

On the other hand, courts are generally reluctant to reconsider and modify previous orders,

even in the class certification context, in part because of the law-of-the-case doctrine and to avoid

costly delays to the proceedings. Outzen v. Kapsch Trafficcom USA, Inc., 20-cv-1286, 2022 WL

4259675, at *2 (S.D. Ind. Sept. 15, 2022) (citing 3 Newberg & Rubenstein on Class Actions § 7:35

(6th ed.)). "Rule 23(c)(1) . . . is not a Trojan Horse by which [a party] may endlessly reargue the

legal premises of their motion." Gardner v. First Am. Title Ins. Co., 218 F.R.D. 216, 218 (D. Minn.

2003); see also Jaynes v. United States, 69 Fed. Cl. 450, 453 (2006). "[I]n the absence of materially

changed or clarified circumstances, the Court cannot condone a series of rearguments on the class

issues by either the proponent or the opponent of the class." Barron v. Paycor, Inc., No. 20-cv-264,

2026 WL 431363, at *2 (S.D. Ill. Feb. 16, 2026) (cleaned up).

III. DISCUSSION

Before the Court are two Motions: a Motion for Reconsideration of the Summary Judgment

Order or In the Alternative, a Motion to Certify the Order for Interlocutory Appeal; and a Motion

to Decertify the Class; both filed by the City and joined by My-Way. The City argues in its

decertification motion that the March 27, 2026 Summary Judgment Order (Filing No. 304),

materially changed the class certification analysis, so the class should be decertified (Filing No.

309 at 14). The City also asks the Court to reconsider the Summary Judgment Order. The Court

will address the Motion to Reconsider before turning to the Motion to Certify the Order for

Interlocutory Appeal and the Motion to Decertify the Class.

A. Motion for Reconsideration

The City presents three arguments (which the Court will address in turn) why the Court

should reconsider the Summary Judgment Order, in so far as it denied summary judgment for

Count II: Negligence, and Count IV: Private Nuisance, against the City. The City argues that the

Court (1) erroneously imposed a duty that Indiana law does not recognize, (2) erroneously imposed

nuisance liability that Indiana law does not recognize, and (3) even if the Court were correct to

impose such duty and liability, the City cannot be liable because it is immune under the Indiana

Tort Claims Act.

1. Count II: Negligence

The City premises its Motion on the assertion that the Summary Judgment Order allowed

the negligence claim to proceed "based on the City's mere ownership" of the 310/358 Properties

(Filing No. 313 at 2, 6–7, 10). The City contends that the negligence claim turns on whether, under

Indiana law, a municipality may be held to owe a duty based on ownership of property and

knowledge of a hazardous condition, notwithstanding the absence of control over the premises or

any qualifying relationship with the third party responsible for the alleged hazard. Id. at 6. The

City argues that in cases involving real estate, the dispositive inquiry is control over the premises

rather than mere ownership.

The City then contends that Indiana law does not impose a duty to control the conduct of

third parties absent a qualifying relationship. Id. at 8. The City concludes that because of this, the

factors announced in Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991) relied upon in the Summary

Judgment Order, are inapplicable. The City argues that the Court's determination that the

accumulation of plastic on the property via a trash recycling business was an activity on the land

rather than a condition is incorrect. And regardless of whether the accumulation of plastics on the

City's property is classified as an activity or condition, the harm arose from the conduct of a third

party, My-Way, and thus, Indiana law does not impose a duty on the City.

In their response brief, the Plaintiffs point out that the City's Motion repeatedly

characterizes the Summary Judgment Order as imposing liability based on "mere ownership" of

property. The Plaintiffs contend that this characterization of the Summary Judgment Order is

incorrect, and the Court instead applied Indiana law to the developed summary judgment record

and found that Plaintiffs' negligence and nuisance claims could proceed because the City owned

the 310/358 Properties, had actual knowledge of a long-standing fire hazard, knew that a fire could

result in neighborhood evacuation and property disruption, and failed to take effective action to

abate that danger (Filing No. 315 at 6).

The Plaintiffs note that the Court rejected on summary judgment the very framing the City

now repeats—that the City cannot be liable because it was not in possession or control of the

310/358 Properties and because My-Way retained physical control. The Plaintiffs contend that the

City's Motion therefore does not identify any legal error in the Court's reasoning, but rather,

substitutes the City's preferred factual characterization for the record the Court actually considered.

Id. at 7–8.

In its reply brief, the City again asserts that it had no possession or control, so the Court

should not have used the Webb v. Jarvis factors (Filing No. 317 at 5).

At the outset, the Court clarifies that the City's Motion is based on a misunderstanding of

the Summary Judgment Order. To be clear, the Court did not hold that the law imposes a duty

based on "mere ownership" of the 310/358 Properties. Indeed, the City made this exact same

argument in its summary judgment briefing (Filing No. 241 at 25–27). The Court considered and

rejected those arguments, instead finding that the designated evidence—the unsafe-building

proceedings that addressed both the possibility of a fire event requiring a multi-agency response

and possible evacuations, and an air plume study reflecting concerns for evacuation if a fire

occurred—showed that the City had actual knowledge of both My-Way's failure to maintain the

properties and the foreseeable possibility of ash, soot, and dislocation damages to nearby residents

(Filing No. 304 at 16–17).

Moreover, the Court found many of the cases the City now cites to be inapplicable because

the Plaintiffs were not invitees; at no point did any of the Plaintiffs step onto the 310/358

Properties. Accordingly, the Court found that premises liability principles—which impose a duty

to maintain property in a reasonably safe condition for business invitees, see Podemski v. Praxair,

Inc., 87 N.E.3d 540, 547 (Ind. Ct. App. 2017)—are not applicable to this case (Filing No. 304 at

14). The Court correctly analyzed whether the City owes a duty to Plaintiffs under the factors first

enumerated in Webb v. Jarvis.

The City's Motion to Reconsider essentially attempts to relitigate issues already determined

by the Court and substitute its version of the Court's ruling. The City contends that the Court

accepted as undisputed that My-Way alone controlled the properties and held that Plaintiffs' claims

could proceed solely because of mere ownership. As previously stated, this was not the Court's

ruling. Instead, the Summary Judgment Order held that Plaintiffs had designated evidence

sufficient to permit a jury to decide whether the City's own conduct as property owner, including

actual knowledge of a foreseeable harm, contributed to the foreseeable harm caused by the fire.

On summary judgment a court may not make credibility determinations, weigh the

evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder. Rather,

the court has one task and one task only: to decide, based on the evidence of record, whether there

is any material dispute of fact that requires a trial. See Johnson v. Advoc. Health & Hosps. Corp.,

892 F.3d 887, 893 (7th Cir. 2018). And where there is a material dispute of fact, as there is here,

summary judgment is not appropriate. The City has provided no grounds on which the Court

committed a manifest error of law, and a motion to reconsider is not an opportunity to simply

relitigate matters previously before the Court. Accordingly, the Motion to Reconsider is denied as

to Count II: Negligence of the Plaintiffs' Second Amended Class Action Complaint.

2. Count IV: Private Nuisance

The City contends that it cannot be held liable for nuisance because My-Way created the

hazardous condition and physically occupied the property (Filing No. 313 at 11). The City asserts

that the Court recognized that a private nuisance arises when it has been demonstrated that one

party has used his property to the detriment of the use and enjoyment of another's property, but the

Court erroneously concluded that the City's conduct could create a nuisance because it did not use

its property. The City explains that even where a qualifying relationship exists, liability depends

on whether the owner participated in or consented to the condition giving rise to the alleged

nuisance which can be shown where a lease or agreement permits the use that necessarily results

in a nuisance, or where the owner has actual knowledge of the condition and consents to its

continuation. Id. at 13. The City asserts that Indiana law is well settled that where the alleged

nuisance arises from the manner in which a third party uses property, the owner cannot be liable

based on ownership alone.

In their response brief, Plaintiffs contend that the City once again substitutes its "no

control" argument for the holding of the Court (Filing No. 315 at 11–12). The Plaintiffs assert that

the fact that My-Way may have contributed to the issue does not eliminate the City's responsibility

to abate a known fire hazard, nor does My-Way's involvement establish, as a matter of law, that

the City lacked any legally meaningful control. Id. Plaintiffs point out that the Court did not create

a broad rule that all municipal property ownership creates nuisance liability. Rather, the Court held

only that, on this record, Plaintiffs designated enough evidence for a reasonable jury to decide

whether the City's failure to remediate known hazardous conditions on its own property interfered

with Plaintiffs' use and enjoyment of their homes. Id. at 13.

The City's reply brief reasserts its argument that it is not liable in nuisance because it did

not use its property (Filing No. 317 at 6). The City also contends that its lack of relationship with

My-Way compels reconsideration of Plaintiffs' nuisance claims. Id.

Here, as with the negligence claim, the City misunderstands the Court's nuisance

determination. The Court did not create a broad rule that ownership alone can be the basis of

nuisance liability. Rather, the Court found Plaintiffs' designated evidence showed that for over two

years, the City owned the 310/358 Properties and allowed combustible materials in tremendous

volume to remain without fire suppression and limited access to egress and fire lanes (Filing No.

304 at 26). The designated evidence also shows that the City knew of and was warned of the

potential for a large-scale fire resulting in evacuation of the surrounding area. The Court

determined that pursuant to this record, the issue of nuisance "is a question for the trier of fact

because a reasonable jury could conclude that the City's failure to remedy a known fire hazard for

more than two years resulting in a large-scale fire dislocating Plaintiffs from their homes could

constitute a private nuisance." Id. at 26–27. The City has provided no grounds on which the Court

committed a manifest error of law.

Moreover, the City is simply repeating arguments the Court already considered at summary

judgment. The City argued in its summary judgment briefing that it did not engage in any activity

beyond communicating with My-Way and thus could not be held liable for nuisance (Filing No.

241 at 31). As previously stated, reasserting the same arguments the Court rejected is not grounds

for reconsideration. Accordingly, the Motion for Reconsider is denied as to Count IV: Private

Nuisance, as well.

3. Indiana Tort Claims Act ("ITCA")

The City asserts that the Court erred because it should have applied the immunities

provided by the ITCA, codified at Ind. Code §§ 34-13-3-0.1–25 (Filing No. 313 at 15).

Specifically, the City contends that the Court should have applied immunity under Section 34-13-

3-3(a)(8) and (10). Id.

a. Section 34-13-3-3(a)(8)

Indiana Code § 34-13-3-3(a)(8) grants immunity from claims against a governmental entity

for the adoption and enforcement of or failure to adopt or enforce any law, including rules and

regulations. The City argues that the allegations against the City are based on a failure to enforce

laws against My-Way, but the Court nonetheless found that this provision did not apply (Filing No.

313 at 15). The City contends that in doing so, the Court conflated a duty analysis for negligence

with this specific ITCA immunity, which was an error, as the immunity analysis should be separate

and distinct from that duty analysis. Id. (citing Henshilwood v. Hendricks County, 653 N.E.2d

1062, 1065 (Ind. Ct. App. 1995)).

The City points to the Plaintiffs' Second Amended Class Action Complaint referencing the

Defendants' disregard of Building Commission orders and failure to comply therewith. The City

also points to the Plaintiffs' Statement of Claims asserting that the City failed to remediate fire

hazards and unsafe conditions that were subject to orders to remediate.

The City then points to the Court's statements that "the City did not have exclusive control

and management of the injuring instrumentality," "My-Way kept the 310/358 Properties under lock

and key," and "the injuring instrumentality occurred due to My-Way's plastic business[,]" (Filing

No. 304 at 25), arguing that the Court found the undisputed facts establish My-Way's control of

the 310/358 Properties. The City contends that without control, the only avenue for the City to

protect Plaintiffs from the harm of the fire or to abate the nuisance was to initiate another legal

action to enforce the Building Commission orders.

The City then argues the Court's conclusion that the Building Commission orders were not

orders "that fall within the scope of the City's purpose or operational power as a landowner," (Filing

No. 304 at 37 (citing Johnson v. Marion Cnty. Coroner's Off., 971 N.E.2d 151, 157–58 (Ind. Ct.

App. 2012) (internal quotation marks and citation omitted)), is incorrect because those orders fall

precisely within the City's purpose and operational power. The City asserts that it was the City of

Richmond Fire Department that inspected the 310/358 Properties and the City of Richmond's

Building Commission that issued the orders pertaining to the 310/358 Properties (Filing No. 313

at 18).

The Plaintiffs respond that the City, just as it did in its summary judgment briefing, argues

that Plaintiffs' claims are barred because they arise from the City's failure to enforce laws against

My-Way. However, that is not the Plaintiffs' theory. Rather, Plaintiffs' theory is that the City owned

the 310/358 Properties, knew they contained dangerous combustible materials, knew those

conditions posed a serious fire and evacuation risk, and failed to take reasonable action as owner

to abate or prevent the hazard from remaining on its land (Filing No. 315 at 14). The Plaintiffs then

point out that the Court already rejected the City's attempt to transform that landowner-negligence

theory into a regulatory-enforcement claim.

Plaintiffs assert that the existence of the Building Commission orders, fire-code violations,

or other enforcement mechanisms does not mean the City's only relevant role was regulatory.

Plaintiffs assert that a municipality that owns property does not become immune from ordinary

tort duties simply because the dangerous condition on its property also violates laws or local orders.

If that were the rule, governmental entities could avoid landowner liability whenever a known

hazard also happens to be code violative. Id. at 14–15.

Plaintiffs also contend that the City's arguments prove too much. Id. at 15. Such position

would mean that once a municipality identifies a dangerous condition through official proceedings,

any later claim based on that same condition must be treated as a failure-to-enforce claim, even if

the municipality owns the property and has authority to address the hazard as owner. That would

collapse the distinction between regulatory enforcement and proprietary responsibility. Plaintiff's

argue that the Court properly refused to do so. Id. at 15. The Court agrees.

Once again, the City mistakenly asserts that the Court concluded that it is undisputed that

the City lacked any control over the 310/358 Properties. The Court's statement that the City did

not have exclusive control does not mean that the City had absolutely no ability to do anything

beyond either enforcing the Building Commission orders or waiting until the inevitable fire caused

a mass-scale evacuation. Indeed, the City takes the Court's statement out of context in another

attempt to substitute the record for its argument.

The Court concluded that "Plaintiffs' invocation of res ipsa loquitur cannot succeed

because the city did not have exclusive control and management of the injuring instrumentality."

(Filing No. 304 at 25). However, the preceding language contained in the Summary Judgment

Order explains that for res ipsa cases, a plaintiff must prove that the defendant had exclusive

control of the injuring instrumentality and therefore only the defendant could be liable for the

occurrence. See id. at 24–25. In other words, the Court could not (and did not) conclude that the

City was the only entity with control over the 310/358 Properties. But stating that the City does

not have exclusive control does not equate to saying it has no control. Such an assertion is an

overextension of the Summary Judgment Order.

Moreover, the existence of the Building Commission orders does not cause Plaintiffs'

landowner liability claims to transform into governmental regulatory claims. Indeed, the City

reasserts the same arguments it made in its summary judgment briefing. The Court already rejected

those arguments stating that "the mere fact that the Building Commission orders were issued

against My-Way does not lead to the conclusion that Plaintiffs' claims concern the City's failure to

enforce the Building Commission orders." Id. at 37. Rather, the Building Commission orders

simply establish the City's knowledge of the fire hazard and nuisance.

As stated in the Summary Judgment Order, the crux of Plaintiffs' Second Amended Class

Action Complaint is that the City failed to use reasonable care and allowed a known fire hazard to

persist on property it owned despite years of notice and opportunities to remedy the danger. The

Plaintiffs' claims are not based on the Building Commission orders and any enforcement and

failure thereof. Accordingly, because the Court has already addressed the City's arguments and the

Court finds no manifest error of law, the Motion to Reconsider is denied as to this immunity

provision of the ITCA.

b. Section 34-13-3-3(a)(10)

The City argues it is immune from liability under Indiana Code § 34-13-3-3(a)(10) because

the fire and resulting damages were due to the action of My-Way. Indiana Code § 34-13-3-3(a)(10)

provides immunity for the act or omission of anyone other than the governmental entity or the

governmental entity's employee. The City argues that the Court's conclusion—that Plaintiffs'

claims against the City are separate and distinct from the claims against My-Way—is erroneous

(Filing No. 313 at 19). It was My-Way who exerted possession and control over the 310/358

Properties and accumulated combustible materials on the 310/358 Properties, and the City did not

perform any act concerning the 310/358 Properties beyond reconnaissance. Id. at 20. The City

contends that Plaintiffs' claims squarely address the actions of My-Way and the inactions by the

City. Thus, the City is entitled to immunity because the fire and resulting damages were due to the

act or omission of anyone other than the governmental entity or the governmental entity's

employee—namely, My-Way. Id. at 21.

In their response brief, the Plaintiffs assert that their claims against the City are separate

and distinct from their claims against My-Way (Filing No. 315 at 15). The Plaintiffs argue their

claims against the City are premised upon the City owning the 310/358 Properties for more than

two years before the fire and knowing that the 310/358 Properties posed a fire hazard, were a

nuisance, and that a fire at the 310/358 Properties could result in multi-agency emergency response

and possible evacuation. Id.

Plaintiffs also argue that the City's proposed interpretation of Section 34-13-3-3(a)(10) is

far broader than the text permits, and were the Court to accept the City's interpretation, nearly

every negligence case involving a governmental entity could involve some third-party conduct.

Plaintiffs assert the City's interpretation is incorrect because a governmental defendant is not

immune from its own negligence merely because another tortfeasor also contributed to the injury.

Id. at 16. The Court agrees.

Here, not only is the City reciting the same arguments it did at summary judgment, but

those arguments are also incorrect. The Plaintiffs' claims against the City are based on the City's

own inaction—which the City accurately points out. But the alleged negligence and nuisance

claims against the City are wholly independent of the negligence of My-Way. The City may argue

to a jury that My-Way is the sole party responsible for the Plaintiffs injuries and that the City in no

way contributed to or exacerbated the harms. However, that is a causation argument, not an

immunity defense.

Disagreement with the Court is not grounds for reconsideration and even if it were, the

Court committed no manifest error of law. Accordingly, the Motion to Reconsider is denied as to

this immunity.

Having concluded that the Court made no manifest error of law, the Motion to Reconsider

is denied.

B. Motion to Certify the Order for Interlocutory Appeal

The City next asks the Court to certify the Summary Judgment Order for interlocutory

appeal pursuant to 28 U.S.C. § 1292(b) (Filing No. 313 at 21). To certify an order for interlocutory

appeal that is not otherwise appealable, the Court must make three findings: (1) that the "order

involves a controlling question of law"; (2) "to which there is substantial ground for difference of

opinion"; and (3) "that an immediate appeal from the order may materially advance the ultimate

termination of the litigation." 28 U.S.C. § 1292(b).

The City contends that its challenges to the Order meet all three standards. However, the

Court need not move beyond the first, as the City's challenge does not involve a controlling

question of law. On this standard, the City states that, "[t]he specific question for appeal will be

whether a municipality, such as the City, owes a duty to the general public based solely on

ownership of property, notwithstanding the municipality's absence of control over the property or

any qualifying relationship with the party responsible for the alleged hazard." (Filing No. 313 at

22). As the Court has explained above, the City patently misunderstands the Summary Judgment

Order and substitutes its argument for the Court's reasoning.

The Court did not hold that the City could be liable "based solely on ownership of

property." The Court rejected such an argument—which the City made many times at summary

judgment—and instead, held that, on this record, a reasonable jury could conclude that the City is

liable for failing to abate a known fire hazard and nuisance (Filing No. 304 at 21). The Court

further held that a reasonable jury could also conclude that the City's single demand letter was

sufficient action. Id. Nonetheless, the Court's holding was based on specific evidence that the City

owned the 310/358 Properties for more than two years before the fire, was actually aware of the

fire hazard and nuisance on its property, was aware that a fire could lead to a mass-scale evacuation

of the surrounding area, and only demanded once that My-Way vacate the premises but failed to

do anything beyond that. Id.

The City's proposed question for appeal is therefore premised on a misunderstanding of the

Summary Judgment Order. Accordingly, interlocutory appeal is inappropriate, and the City's

Motion is denied.

C. Motion to Decertify Class

As stated above, under Rule 23(c)(1)(C) the Court retains authority to modify or vacate a

class certification at any time prior to final judgment. "[T]he district court has the power at any

time before final judgment to revoke or alter class certification if it appears that the suit cannot

proceed consistent with Rule 23's requirements." Rochford, 565 F.2d at 977. While district courts

have broad discretion on whether or not to certify a class, the Seventh Circuit has made clear that

an order withdrawing class certification must provide a reasoned Rule 23 analysis sufficient to

permit review; generalized concerns about individualized proof do not suffice where the disputed

issue remains capable of common resolution. Red Barn Motors, Inc. v. NextGear Capital, Inc., 915

F.3d 1098, 1101–03 (7th Cir. 2019) (vacating district court's decision to decertify after finding the

decision lacked sufficient reasoning).

Accordingly, the Court will reanalyze the record under Rule 23's requirements keeping in

mind that "in the absence of materially changed or clarified circumstances, the Court cannot

condone a series of rearguments on the class issues by either the proponent or the opponent of the

class." Barron, 2026 WL 431363, at *2 (cleaned up).

To certify a class under Rule 23, Plaintiffs must satisfy four prerequisite requirements of

Rule 23(a): numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a)(1)–(4). Before

evaluating the Rule 23 requirements, the Court must first determine whether the class is

identifiable. Oshana v. Coca Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). A class is identifiable if

class membership can be readily determined by reference to objective criteria. Jamie S. v.

Milwaukee Pub. Schs., 668 F.3d 481, 496 (7th Cir. 2012). If successful in that regard, Plaintiffs

must overcome the final hurdle by showing that the circumstances of their case fit one of the three

"types" of class actions which Rule 23(b) defines. The Court previously certified the class pursuant

to Rule 23(b)(3).

Where certification is sought under Rule 23(b)(3), Plaintiffs must show that questions of

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

only individual class members and that a class action is the superior method of resolving the

controversy. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). A party

seeking class certification bears the burden of demonstrating that certification is appropriate by a

preponderance of the evidence. Id. The determination of whether to certify a proposed class is

within the broad discretion of the district court. Retired Chi. Police Ass'n., 7 F.3d at 596. While

consideration of class certification is not "a dress rehearsal for the trial on the merits," the court

"must 'receive evidence . . . and resolve the disputes before deciding whether to certify the class.'"

Messner, 669 F.3d at 811 (omission in original) (quoting Szabo, 249 F.3d at 676).

The Court previously certified the following class: Those persons who resided within a

half-mile radius evacuation zone around the fire at 358, 310, and 308 NW F Street from April 11

through April 16, 2023 (the "Class") (Filing No. 287 at 7). The Court then certified two subclasses:

the Owner Subclass and Non-Owner Subclass. Id. The City now moves to decertify the Class.

The City does not challenge that the Class is sufficiently identifiable, and the Court sees

no reason or change in circumstances that would undermine its previous finding. Accordingly, the

Court finds that the Class is still sufficiently identifiable via property records for the Owner

Subclass and leases, rental agreements, and tax records for the Non-Owner Subclass.

1. Rule 23(a) Requirements

The City contends that the Plaintiffs cannot meet their burden of satisfying the Rule 23(a)

requirements (Filing No. 309 at 10). Pursuant to Rule 23, the named parties of a class of plaintiffs

may sue on behalf of all members of a class if:

(1) The class is so numerous that joinder of all members is impracticable;

(2) There are questions of law or fact common to the class;

(3) The claims or defenses of the representative parties are typical of the claims

or defenses of the class; and

(4) The representative parties will fairly and adequately protect the interests of

the class.

Fed. R. Civ. P. 23(a). Although Plaintiffs ultimately bear the burden of showing that the Rule 23

requirements are met, this Court must engage in its own "rigorous analysis" to ensure that

certification is appropriate. See Santiago v. City of Chi., 19 F.4th 1010, 1016 (7th Cir. 2021). Each

of the subclasses must independently meet the requirements of Rule 23(a). See Fed. R. Civ. P.

23(c)(5); Johnson v. Meriter Health Servs. Emp. Ret. Plan, 702 F.3d 364, 368 (7th Cir. 2012) ("[A]s

long as each subclass is homogeneous, in the sense that every member of the subclass wants the

same relief, and each subclass otherwise satisfies the requirements for certifying a class, so that

each could be the plaintiff class in a separate class action, there is no objection to combining them

in a single class action."). The Court will address each Rule 23(a) element in turn.

a. Numerosity

"Mere allegations that a class action would make litigation easier for a plaintiff are not

enough to satisfy Rule 23(a)(1)." Anderson v. Weinert Enters., Inc., 986 F.3d 773, 777 (7th Cir.

2021). The rule requires that "the class must be so numerous that joinder of all class members is

impracticable." Jones v. Blinziner, 536 F. Supp. 1181, 1189 (N.D. Ind. 1982). "While

'impracticable' does not mean 'impossible,' a class representative must show 'that it is extremely

difficult or inconvenient to join all the members of the class.'" Anderson, 986 F.3d at 777 (quoting

7A Wright & Miller's Federal Practice & Procedure § 1762 (3d ed.)).

In the Seventh Circuit, "a forty-member class is often regarded as sufficient to meet the

numerosity requirement," though the proper focus should be the "practicability of joinder" rather

than the number of putative class members. Id. This determination requires evaluation of "'the

nature of the action, the size of the individual claims, and the location of the members of the class

or the property that is the subject matter of the dispute.'" Id. (quoting 7A Wright & Miller's Federal

Practice & Procedure § 1762 (3d ed.)).

The City contends that the Court relied on Plaintiffs' citation to an unauthenticated report

suggesting that 2,000 residents evacuated and noting that 2,000 was more than double the 863

properties the plaintiffs sought to certify in Denney in its class certification order (Filing No. 309

at 12). The City contends that the Plaintiffs never deposed the author of the report and instead

deposed Jonathan Duke, deputy director of Wayne County Emergency Management Agency, who

testified that he did not personally believe that 2,000 people were evacuated. Id. (citing Filing No.

309-1 at 6 pp. 15:21–25). The City argues that Plaintiffs' counsel admitted on the record, " The

number was thrown around a lot, but how specific or how accurate it was, we don't know." Id.

(quoting Filing No. 309-1 at 15 pp. 53:6–8)3 The City also contends that Jonathan Duke testified

that he "personally saw people inside the evacuation zone." Id. (quoting Filing No. 309-1 at 13 pp.

42:3–7).

The City contends that Plaintiffs' counsel has admitted to not knowing how many people

were evacuated and the only reason for the estimated 2,000-person number was inadmissible

hearsay. The City concludes by proffering that the Court's prior class certification order did not

address the fact that 150 individuals initiated their own action based on the facts of this case, and

that action remains pending in state court. Id. at 13.

The Plaintiffs respond that the City's arguments rest on the false premise that Plaintiffs

must prove the exact number of people who were physically evacuated before the class may

proceed when Rule 23 does not impose such a requirement (Filing No. 314 at 8). Plaintiffs contend

that the City overstates Jonathan Duke's testimony because even though he said he did not

personally believe 2,000 people evacuated, he subsequently testified that there were "possibly

2,000 people impacted[,]" but did not have personal knowledge of the figure cited in the incident

report which stated that "the fire forced the evacuation of over 2,000 people from their homes." Id.

at 8–9 (quoting Filing No. 309-1 at 6 pp. 15:21–25; Filing No. 122-3 at 18).

The Plaintiffs note that they listed the author of the incident report, State Fire Marshal

Joseph Tanasovish, on their witness list, and he intends to testify directly regarding his knowledge

of the relevant events. Plaintiffs contend that the City cannot convert an evidentiary objection to

one portion of the record into a basis for vacating certification. Id. at 9.

The Plaintiffs argue that the Class is tied to residences within the evacuation zone; not the

number of people who were physically forced from their homes by police. Id. at 10. They assert

3 The Court notes that counsel's proposed admission was not testimonial, but rather a comment made preceding a

question being asked during Jonthan Duke's deposition (See Filing No. 309-1 at 15 pp. 53:6–8).

that the City's arguments that the evacuation was not mandatory because officials did not drag

residents out, arrest noncompliant residents, or erect barriers at every point of entry is beside the

point. Rather, the fact that an emergency evacuation order was issued to residents and persons

within a residential half-mile radius is what matters for numerosity. Id.

The City replies that Plaintiffs have failed to meet their burden because they have offered

no admissible evidence to establish the numerosity of the Class—exactly or generally (Filing No.

316 at 4). The City argues that the Court is required to consider Jonathan Duke's testimony, and

the Plaintiffs cannot simply state that Joseph Tanasovich will be called at trial. Rather, they must

provide the Court with admissible evidence as to numerosity. Lastly, the City contends that the

150-person mass action in state court proves that joinder is practical. Id. at 6.

Upon consideration of both parties arguments, the Court finds that numerosity is still

satisfied and the personal belief from one individual that 2,000 people did not actually evacuate is

not enough to warrant overturning the Court's previous finding.4 As Plaintiffs point out, their

claims are not based on being dragged out of their homes or arrested for not complying with an

emergency evacuation order.

In addition, the Plaintiffs intend to call Joseph Tanasovich to testify about his personal

knowledge of the figure, and whose incident report states that "the fire forced the evacuation of

over 2,000 people from their homes." (See Filing No. 122-3 at 18). Moreover, Jonathan Duke

testified that it was possible that 2,000 people were impacted (Filing No. 309-1 at 6 pp. 15:25–

16:1). Accordingly, even if the incident report is hearsay, the very testimony the City now relies

4 The designated evidence shows as a result of the fire, the Wayne County Emergency Management Agency issued an

evacuation order of a half-mile radius from the origin of the fire—the 358 Property— resulting in the evacuation of

up to 2,000 individuals (Filing No. 251-5 at 5, pp. 18:19–19:8, Filing No. 251-3 at 18). The evacuation order remained

in place for five days, ultimately being lifted on April 16, 2023. Id. at 6, pp. 24:12–23. The smoke from the fire caused

air quality concerns in the area and significant disruption to the community. Id.

on indicates that 2,000 individuals may have been impacted by the fire. The circumstances in

which the Court previously found numerosity satisfied have not changed. Numerosity therefore

remains satisfied.

b. Commonality

To satisfy the commonality requirement, the claims of the proposed class members "must

depend upon a common contention that is capable of class-wide resolution." Chi. Teachers Union,

Local No. 1 v. Bd. of Educ. of City of Chi., 797 F.3d 426, 434 (7th Cir. 2015). A "common nucleus

of operative fact" generally fulfills this requirement. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th

Cir. 1992). This common nucleus is typically found "where the defendant has engaged in some

standardized conduct toward the proposed class members." Mejdreck v. Lockformer Co., No. 01 C

6107, 2002 U.S. Dist. LEXIS 14785, at *8–9 (N.D. Ill Aug. 12, 2002), aff'd sub nom., Mejdrech v.

Met-Coil Sys. Corp., 319 F.3d 910 (7th Cir. 2003).

The City contends that for Plaintiffs to meet their burden on this prerequisite, there must

be a more specific common issue than, "[w]ere the [d]efendants negligent?" (Filing No. 309 at 13

(quoting Jamie S., 668 F.3d at 497)). Rather, Rule 23(a)(2) requires a common answer capable of

resolving "an issue that is central to the validity of each one of the claims in one stroke." Id.

(quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)).

The City contends that there is not a common answer that will resolve an issue that is

central to the validity of each one of the claims in one stroke because the Summary Judgment

Order dismissed some of Plaintiffs' claims against the City. The City asserts that because the Court

dismissed Plaintiffs' strict liability, res ipsa loquitur, trespass, and battery claims against the City

but those claims remain against Cornerstone, there cannot be a resolution of a central issue in one

stroke. Id. at 14.

Plaintiffs respond that under Rule 23(a)(2), they need not show that every issue is common,

but rather that the class claims depend upon a common contention capable of class wide 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." (Filing No. 314 at 11 (quoting Lacy v. Cook

County, 897 F.3d 847, 865 (7th Cir. 2018) (citation omitted))).

Plaintiffs note that the City's Motion identifies no relevant development since the Court

considered this issue and misapprehends the standard by focusing on asserted differences among

class members' experiences and damages, while ignoring the central, unifying issues that will

resolve liability. Plaintiffs assert that the claims of every class member arise from the same discrete

event and turn on the same course of conduct by the same Defendants. Id. at 12.

The City replies that other courts have decertified classes specifically on nuisance claims

like Plaintiffs' (Filing No. 316 at 7). The City contends that because nuisance contains subjective

elements, the claims are not common or typical to all members of the Class. The Court disagrees.

The Court previously found that commonality was satisfied because for the Class members

to recover, they will all need to prove that Defendants were negligent or otherwise liable in the

way they handled combustible materials and allowed the fire to occur, thus requiring common

answers (Filing No. 287 at 15). The Court further found that the inevitability that some class

members may have different damages does not disturb a finding of commonality. Id.

Here, nothing has changed, and the Court once again finds that commonality is satisfied.

The Class members will still all need to prove that Defendants were negligent or otherwise liable

in the way they handled combustible materials and allowed the fire to occur. The fact that the Court

dismissed some of Plaintiffs' claims against the City does nothing to undermine the Court's

previous finding. Accordingly, commonality is satisfied.

c. Typicality

"A claim is typical if it 'arises from the same event or practice or course of conduct that

gives rise to the claims of other class members and . . . [plaintiffs'] claims are based on the same

legal theory.'" Oshana, 472 F.3d at 514. "Although '[t]he typicality requirement may be satisfied

even if there are factual distinctions between the claims of the named plaintiffs and those of other

class members,' the requirement 'primarily directs the district court to focus on whether the named

representatives' claims have the same essential characteristics as the claims of the class at large.'"

Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009) (alteration in original) (quoting De La

Fuente v. Stokely-Van-Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)).

The City argues that Plaintiffs cannot show typicality for the same reason they cannot show

commonality—Class members have different legal causes of action, legal theories, and damages

requests pending against three different types of Defendants (Filing No. 309 at 14). The City likens

this case to Millman v. United Techs. Corp., No. 16-cv-312, 2019 WL 6112559, at *5 (N.D. Ind.

Nov. 18, 2019), where a district court found that the legal theories asserting in that case—such as

negligence, trespass, nuisance, and state law claims—were not universally applicable to all

proposed class members. Id. at *4.

Plaintiffs respond that the Court already rejected the City's attempts to defeat typicality by

focusing on differences in damages (Filing No. 314 at 13). Plaintiffs note that the Court explained

in its class certification order that Defendants were "focus[ing] on the typicality of damages rather

than the claims," and held that the Plaintiffs' claims were typical because the two subclass

members' claims "all rely on the same legal theories" and "arose from the same course of conduct

by Defendants." Id. (quoting Filing No. 287 at 15).

The City's reply brief asserts the same reasoning for typicality as it did above in

commonality. As with commonality, the Court disagrees.

The Court previously found that typicality was met for the same reasons commonality was

met (Filing No. 287 at 15–16). The Summary Judgment Order dismissing some of Plaintiffs' claims

against the City does nothing to undermine such a finding. Accordingly, for the same reasons

commonality is still satisfied, typicality is as well.

d. Adequacy

To satisfy the adequacy prerequisite, a representative party must "fairly and adequately

protect the interests of the class." Fed. R. Civ. P. 23(a)(4). "Adequacy of representation is composed

of two parts: the adequacy of the named plaintiff[s'] counsel, and the adequacy of representation

provided in protecting the different, separate, and distinct interest of the class members." Retired

Chi. Police Ass'n., 7 F.3d at 598 (citation modified). "In order to be an adequate representative, the

named plaintiff[s] must 'be part of the class and possess the same interest and suffer the same injury

as the class members.'" Conrad v. Boiron, Inc., 869 F.3d 536, 539 (7th Cir. 2017) (quoting Amchem

Prods. v. Windsor, 521 U.S. 591, 625–26 (1997)).

The City contends that the named Plaintiffs will not protect the interests of the Class

because they both claim to be property owners (Filing No. 309 at 15). Thus, they will not

adequately represent the Non-Owner subclass. Id.

In response, the Plaintiffs argue that the Court already dealt with this issue holding that

"the separation of the class into subclasses resolves any issues," because ownership-dependent

claims, such as private nuisance, would be asserted by the Owner Subclass, while the Non-Owner

Subclass would pursue only claims for which ownership is not required (Filing No. 314 at 14

(quoting Filing No. 287 at 16–17)). The Plaintiffs argue that even if the Court concludes that the

Non-Owner Subclass requires an additional representative, the appropriate remedy is not

decertification but modification under Rule 23(c)(1)(c), including appointment or substitution of

an additional subclass representative and they respectfully request that opportunity in the

alternative. Id.

The City replies that trial for this case is set to begin in three months. Thus, modification

is not the appropriate remedy, and the Court should instead decertify the class (Filing No. 316

at10). The Court disagrees.

Circumstances concerning adequacy appear to have changed. In the parties' initial briefing

for class certification, the City challenged adequacy on the grounds that Craig was not a property

owner and therefore would not represent the Class adequately (see Filing No. 287 at 16). The Court

rejected that challenge finding that the creation of the Owner Subclass and the Non-Owner

Subclass rectified any issues. However, the City is now challenging the adequacy of the

representatives on the ground that Craig is a property owner.

Nonetheless, this does not disturb the Court's finding that the named representatives will

adequately represent the Class. That is because both representatives will be pursuing all claims in

this case. To use the example above, both named representatives will pursue claims for private

nuisance and all other claims alleged in the Second Amended Class Action Complaint. The mere

fact that the Non-Owner Subclass may not be able to pursue private nuisance claims does not mean

that the named representatives will not adequately represent that subclass in the claims the subclass

may assert. In other words, there is not a single claim which the Non-Owner Subclass pursues that

the Owner Subclass is not also pursuing. Accordingly, the Court is satisfied that adequacy is met,

and modification is not necessary.

The Court once again finds that the Rule 23(a) prerequisites are satisfied. Thus, the Court

moves on to the Rule 23(b) requirements.

2. Rule 23(b) Requirements

For class certification to be proper, Plaintiffs must also show that the circumstances of their

case are such that one of the three available options for class certification under subsection (b) of

the rule applies. The Court certified the Class pursuant to Rule 23(b)(3). Under Rule 23(b)(3),

Plaintiffs must show that questions of law or fact common to the class members predominate over

any questions affecting individual members and that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). The burden

is on Plaintiffs to demonstrate, by a preponderance of the evidence, that they have met each

requirement of Rule 23. Messner, 669 F.3d at 811.

a. Predominance

The predominance requirement is related to commonality in that common questions must

exist class-wide, but "the predominance criterion is far more demanding." Amchem, 521 U.S. at

623–24. To meet this requirement, Plaintiffs must show "'common questions represent a significant

aspect of [their] case and . . . can be resolved for all members of [the] class in a single

adjudication.'" Messner, 669 F.3d at 815 (omission in original) (quoting 7AA Wright & Miller's

Federal Practice & Procedure § 1778 (3d ed. 2011)). Predominance is "a qualitative rather than a

quantitative concept. It is not determined simply by counting noses: that is, determining whether

there are more common issues or more individual issues, regardless of relative importance." Parko

v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014).

In Mejdrech v. Met-Coil Systems Corp., a class of residents located within a one-mile radius

of a factory alleged contaminants from defendant's factory leaked into the soil and groundwater,

which then migrated to the nearby residential area. 319 F.3d 910 (7th Cir. 2003). There, the

defendant argued that various causation issues, like the varying degree of contaminations on each

property, precluded class certification. Id. at 911. The Seventh Circuit affirmed the district court in

finding that common issues predominated because "[t]he questions whether Met-Coil leaked TCE

in violation of law and whether the TCE reached the soil and groundwater beneath the homes of

the class members are common to all the class members." Id.; see also Pella Corp. v. Saltzman,

606 F.3d 391, 394–95 (7th Cir. 2010) (noting that even though class members still must prove

individual issues of causation and damages, this does not prevent class certification). The Seventh

Circuit in Mejdrech explained its reasoning stating, "If there are genuinely common issues, issues

identical across all the claimants, issues moreover the accuracy of the resolution of which is

unlikely to be enhanced by repeated proceedings, then it makes good sense, especially when the

class is large, to resolve those issues in one fell swoop while leaving the remaining, claimant-

specific issues to individual follow-on proceedings." 319 F.3d at 911.

The City argues that due to the Court's dismissal of some of the Plaintiffs' claims against

it, the remaining claims against the City and Cornerstone are not the same (Filing No. 309 at 17).

The City contends that because of this, there will be numerous issues with Plaintiffs' claims against

Cornerstone, which will be different from and not applicable to the City. The City then argues that

personal injury damages will be subjective and different for every Class member.

Plaintiffs respond that predominance is not defeated merely because class members may

later need to prove the amount of their damages, the length of their displacement, or the particular

expenses they incurred (Filing No. 314 at 15). Plaintiffs contend that the Court already applied

that standard relying on Mejdrech, where the Seventh Circuit affirmed certification despite

property-specific contamination and causation issues because the core questions were common

and would not be answered more accurately through repeated individual trials. Id. (citing

Mejdrech, 319 F.3d at 911).

Plaintiffs contend that the Court already anticipated varying damages expressly

recognizing that "individuals may still have to prove individual causation and damages," but held

that this did not preclude certification because "it is common to have a final phase in which

individualized proof must be submitted." Id. at 16 (quoting Filing No. 287 at 18–20). Plaintiffs

assert that they do not need a single formula that mechanically calculates every Class member's

damages to preserve certification. Rather, Plaintiffs need only show that the central questions are

common, and their resolution will drive the outcome for every class member. Plaintiffs assert that

a separate phase can address class membership and damages and if necessary, any unusually

individualized damages claims can be reserved, excluded from class treatment, or handled through

follow-on procedures. But none of this requires decertification. Id. at 18–19. The Court agrees.

The Court previously found predominance to be satisfied, and nothing has occurred

subsequently that warrants an opposite finding. Every Class member's claims still depend on

central questions the resolution of which will drive the outcome for all claims. As the Court

previously stated, the fact that individualized proof may be required in the final phase of this

litigation does not disturb such a finding. Accordingly, predominance is still satisfied.

b. Superiority

In addition to establishing that common issues predominate over individual ones, Plaintiffs

seeking class certification under Rule 23(b)(3) must show that "a class action is superior to other

available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).

This requirement is satisfied "'if a class action would achieve economies of time, effort, and

expense and promote . . . uniformity of decisions as to persons similarly situated, without

sacrificing procedural fairness or bringing about other undesirable results." Bruzek v. Husky Oil

Operations Ltd., 520 F. Supp. 3d 1079, 1099 (W.D. Wis. Feb. 19, 2021) (omission in original)

(quoting Amchem, 521 U.S. at 615). To determine superiority, the Court considers:

(A) the class members' interests in individually controlling the prosecution or

defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already

begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims

in the particular forum; and

(D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3).

The City focuses on the fourth factor and contends that Plaintiffs have failed to submit a

litigation plan demonstrating class litigation is superior to individual trials (Filing No. 309 at 24).

The City cites cases from the Eleventh and Fifth Circuits; both of which found the respective

plaintiffs' class arguments lacking because they did not provide a litigation plan as to how the

district court could manage all class claims. Id. (citing Vega v. T-Mobile USA, Inc., 564 F.3d 1256,

1278–79 (11th Cir. 2009) (the named plaintiff had done "nothing to acknowledge [the difficulties

in managing a class action] or propose a trial plan that would feasibly address them, and the district

court [did] not appear to have given any meaningful consideration to how this case, with its

individualized claims and defenses, would be tried."); Robinson v. Tex. Auto Dealers Ass'n, 387

F.3d 416, 425 (5th Cir. 2004) ("The district court failed to indicate how it would manage the

gigantic plaintiff class and the large number of defendants.")).

Plaintiffs respond that superiority remains satisfied for the same reason it was satisfied at

certification (Filing No. 314 at 19). Plaintiffs argue that this case involves common liability

questions arising from one fire, one hazardous site, one evacuation order, and one affected

residential area. Trying these issues once on a class wide basis is more efficient, more consistent,

and fairer than requiring residents to litigate the same liability questions separately.

Plaintiffs point out that the Court already found that a class action was far more efficient

than individual trials for up to 2,000 individuals, and they argue nothing changes that analysis. The

same witnesses, records, property history, fire-origin evidence, emergency-response evidence,

evacuation evidence, and liability proof would have to be presented in every individual case.

Decertification would not eliminate individualized damages issues; it would merely force those

issues to be litigated alongside the same common liability evidence again and again. Id. at 20.

Under these circumstances, superiority is satisfied. The City does not challenge the first

three factors and thus, the Court finds that they still weigh in favor of superiority. The Court

previously found that managing the class action would not be overly difficult and that, if anything,

individual trials would cause greater difficulties and expend more judicial resources than necessary

(Filing No. 287 at 20). As stated above, nothing subsequent to the Court's class certification order

necessitates an opposite finding. Accordingly, the Court finds that superiority remains satisfied.

Having concluded that Plaintiffs still satisfy Rule 23(a) and (b)(3), the Court finds that the

Class should not be decertified, and the Motion to Decertify is denied.

IV. CONCLUSION

Surviving a summary judgment motion means that the court has determined—based on the

record before it—that there are genuine, disputed issues of material fact that must be decided by a

jury at trial. The City has provided no grounds on which the Court committed a manifest error of

law in the Summary Judgment Order, and the Motion for Reconsideration and alternative Motion

to Certify the Order For Interlocutory Appeal (Filing No. 312) are DENIED. In addition, for the

reasons discussed in this Order, the Motion to Decertify Class (Filing No. 308) is DENIED.

SO ORDERED.

Date: _ 6/11/2026 Oa atten Uarcath

Hon. Tanya Walton Pratt, Judge

United States District Court

Southern District of Indiana

Distribution:

MY-WAY TRADING, INC.

c/o Seth Smith

P.O. Box 1282

308 NW F St.

Richmond, IN 47374

plasticman1 @earthlink.net

Benjamin D. Felton

DYER GAROFALO MANN & SCHULTZ

bfelton@dgmslaw.com

Arie J. Lipinski

Lipinski Law

lipinski@lipinski-law.com

Andrew M. McNeil

BOSE MCKINNEY & EVANS, LLP (Indianapolis)

amcneil@boselaw.com

Jackson Lee Schroeder

Bose McKinney & Evans LLP

jschroeder@boselaw.com

John Smalley

Dyer, Garofalo, Mann, & Schultz

jsmalley@dgmslaw.com

Brad R. Sugarman

BOSE MCKINNEY & EVANS, LLP (Indianapolis)

bsugarman@boselaw.com

Seth M. Thomas

BOSE MCKINNEY & EVANS, LLP (Indianapolis)

sthomas@boselaw.com

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