THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Lavides v. Weilbacher ,
7 FSM Intrm. 591 (Pon. 1996)

[7 FSM Intrm. 591]

ERROL LAVIDES et al.
Plaintiffs,

vs.

BISMARCK A. WEILBACHER et al.,
Defendants.

CIVIL ACTION NO. 1995-029

MEMORANDUM OF DECISION

Andon L. Amaraich
Chief Justice

Opinion Entered:  September 26, 1996

APPEARANCES:
For the Plaintiffs:     John Hollinrake, Esq.
                    Law Offices of R. Barrie Michelsen
                    P.O. Box 1450
                    Kolonia, Pohnpei FM 96941

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HEADNOTES
Civil Procedure ) Class Actions
     A party invoking Rule 23 has the burden of showing that all four prerequisites ) numerosity, commonality, typicality, and adequacy of representation ) to utilizing the class action procedure have been satisfied.  A class action can then be maintained only if the court finds that questions of law or fact that pertain to the class members predominate over those questions affecting only individual

[7 FSM Intrm. 592]

members, and class action is superior to other available methods for fair and efficient adjudication of controversy. Lavides v. Weilbacher, 7 FSM Intrm. 591, 593 (Pon. 1996).

Civil Procedure ) Class Actions
     A class action may be maintained only if the class is so numerous that joinder of all members is impracticable.  Practicability of joinder depends on the size of the class, ease of identifying numbers and determining their addresses, facility of making service on members joined and their geographic dispersion.  There are no arbitrary rules regarding the size of classes.  Lavides v. Weilbacher, 7 FSM Intrm. 591, 593-94 (Pon. 1996).

Civil Procedure ) Class Actions
     While numbers alone are not usually determinative, a very small class may not meet the numerosity requirement for class certification because joinder of all members is practicable.  Lavides v. Weilbacher, 7 FSM Intrm. 591, 594 (Pon. 1996).

Civil Procedure ) Joinder
     Joinder is the act of uniting as parties to an action all persons who have the same rights or against whom rights are claimed as either co-plaintiffs or co-defendants.  Lavides v. Weilbacher, 7 FSM Intrm. 591, 594 n.2 (Pon. 1996).

Civil Procedure ) Class Actions
     Where joinder of nineteen plaintiffs was already accomplished when plaintiffs instituted suit a later request for certification as a class action will be denied although the plaintiffs later became geographically dispersed.  Lavides v. Weilbacher, 7 FSM Intrm. 591, 594 (Pon. 1996).

Civil Procedure ) Class Actions
     Courts are accorded broad discretion in determining whether a suit should proceed as a class action.  Lavides v. Weilbacher, 7 FSM Intrm. 591, 594 (Pon. 1996).

*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:

INTRODUCTION
     On January 19, 1996, plaintiffs filed two motions with the Court:  (1) a motion pursuant to FSM Civil Rule 15(d) for leave to supplement their complaint in order to allege a class action; and (2) a motion pursuant to FSM Civil Rule 23(c) for an order certifying this case as a class action.  On August 20, 1996, the Court denied plaintiffs' motions.  This Memorandum of Decision sets forth the reasoning for that ruling.

BACKGROUND
     Plaintiffs originally brought this action individually against defendants.  Plaintiffs now request that this matter be certified as a class action.  As the basis for this request, plaintiffs assert that this case was filed at a time when all 19 plaintiffs were residing on the island of Pohnpei.  However, since that time, all but two of the plaintiffs have returned home to the Philippines.  Plaintiffs propose that the two remaining plaintiffs, Reynoaldo Comunias and Diosdado Valencia, be designated as the class representative plaintiffs, because the claims of these two plaintiffs are typical of the claims of all

[7 FSM Intrm. 593]

members of the proposed class; because these two plaintiffs will fairly and adequately represent and protect the interests of all members of the proposed class; because there are common questions of law and fact which predominate over any questions affecting individual members only; and because a class action is superior and the most economical method of proceeding compared to other available methods for the fair and efficient adjudication of the controversies between the plaintiffs and the defendants.

DISCUSSION
I.  Motion to Certify the Class
     Plaintiffs have moved the Court to certify this case a class action, pursuant to FSM Civil Rule 23(c).  That rule states that "as soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.  An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits."  FSM Civ. R. 23(c)(1).

     FSM Civil Rule 23(a) provides the prerequisites to a class action.  That rule states that one or more members of a class may sue or be sued as representative parties on behalf of all only 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.

FSM Civ. R. 23(a).

     This rule is written in the conjunctive, that is, the party who is invoking Rule 23 has the burden of showing that all of the prerequisites to utilizing the class action procedure have been satisfied.  7A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, 1759, at 102 (1986).  If all four factors ) numerosity, commonality, typicality, and adequacy of representation ) favor certification, class action can be maintained only if the court then finds that questions of law or fact that pertain to members of the class predominate over those questions affecting only individual members, and class action is superior to other available methods for fair and efficient adjudication of controversy.  Killian v. McCulloch, 873 F. Supp. 938 (E.D. Pa. 1995).1

     It is arguable, with respect to the instant plaintiffs, that there are questions of law or fact common to the class, that the claims of each of the two proposed class representatives are the same except in the amount of damages claimed, and that the two proposed representative plaintiffs would fairly and adequately protect the interests of the class.  However, the Court need not address these prerequisites, because plaintiffs must meet all four of the criteria, and the Court finds that plaintiffs have not satisfied the numerosity requirement.

     Rule 23(a)(1) provides that a class action may be maintained only if "the class is so numerous that joinder of all members is impracticable."  Practicability of joinder depends on the size of the class,

[7 FSM Intrm. 594]

ease of identifying numbers and determining their addresses, facility of making service on members joined and their geographic dispersion.  Kilgo v. Bowman Transp., Inc., 789 F.2d 859 (11th Cir. 1986).  No arbitrary rules regarding the size of classes have been established by the courts.  7A Wright & Miller, supra, 1762, at 151-53 (1986).

     Nonetheless, courts have held that classes containing two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, fourteen, sixteen, eighteen, twenty, and twenty-one to twenty-six were too small to certify.  Id. at 170-75.  See also National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698 (5th Cir. 1994) (district court correctly denied certification of class where only eleven putative class members could complain of probative events); John Doe I v. Meese, 690 F. Supp. 1572 (S.D. Tex. 1988) (numerosity prerequisite not satisfied where only 59 to 62 aliens seeking asylum were denied interim employment authorization requests and 7 were subsequently granted).  Although there is no arbitrary cutoff at which point a class is too small for certification, the proposed class in the instant case is in the lower reaches of permissibility.

     Further, and more importantly, while numbers alone are not usually determinative, a very small class may not meet the numerosity requirement for class certification because joinder of all members is practicable.  Andrews v. Bechtel Power Corp., 780 F.2d 125 (1st Cir. 1985).  In the instant case, not only is joinder practicable, joinder2 of plaintiffs was already accomplished when plaintiffs instituted suit against defendants.  It was only after joinder that the parties requested that this case be made into a class action.

     The only thing in support of plaintiffs' motion for a class action is the geographical dispersion of plaintiffs after this action was instituted.  However, as noted above, the proposed class is small, plaintiffs have all been identified and their addresses, although in the Philippines, are known, and joinder of plaintiffs was done when plaintiffs originally filed suit individually.  See Klinkhammer v. Richardson, 359 F. Supp. 67 (D. Minn. 1973) (request to turn cases into class action denied where the potential class members were all recorded on files at their reserve unit and all class members gathered together once a month for drills and thus could be notified easily).  Thus, while the geographical dispersion of the plaintiffs is, perhaps, an inconvenience, in this case it does not mandate that this class be certified.

     Courts are accorded broad discretion in determining whether a suit should proceed as a class action.  Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994).  As noted above, a party seeking class certification must meet all of the prerequisites of Rule 23(a).  In the instant case, plaintiffs have not satisfied the numerosity requirement.  Therefore, class certification has been denied.

II.  Motion to Supplement Pleading to Allege Class Action
     Plaintiffs have also moved to supplement their complaint, pursuant to FSM Civil Rule 15(d), in order to allege a class action.  FSM Civil Rule 15(d) provides that:

Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.  Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense.  If the court deems it advisable that the

[7 FSM Intrm. 595]

adverse party plead to the supplemental pleading, it shall so order, specifying the  time therefore.

     Defendants have not opposed plaintiffs' Motion to Supplement.  However, because class certification has been denied, permitting the pleadings to be supplemented would serve no purpose.  Therefore, this motion has also been denied.
 
 
Footnotes:
 
1.  This Court has stated that it is appropriate to look to decisions of U.S. federal courts for guidance in interpreting FSM Rules of Civil Procedure where the FSM rules at issue are identical or nearly identical to the U.S. Rules of Civil Procedure.  See, e.g., Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992); Berman v. Santos, 6 FSM Intrm. 532 (Pon. 1994); Mailo v. Twum-Barimah, 2 FSM Intrm. 265, 267 (Pon. 1986).  FSM Civil Rule 23 is identical to Rule 23 of the U.S. Federal Rules of Civil Procedure.

2.  "Joinder" is the act of uniting as parties to an action all persons who have the same rights or against whom rights are claimed as either co-plaintiffs or co-defendants.  Black's Law Dictionary 750 (5th ed. 1979).