DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION TO CERTIFY THE DEFENDANT CLASS

NIXON, HARGRAVE, DEVANS & DOYLE llp

G. Robert Witmer, Jr., Esq.
Attorneys for Defendants

Clinton Square
Rochester, New York 14603

(716) 263-1000
David M. Schraver, Esq., Of Counsel,
Timothy E. Delahunt, Esq., On the Brief.

Plaintiffs the Oneida Indian Nation of New York and the Oneida Tribe of Indians of Wisconsin (collectively, "Plaintiffs") move to certify a defendant class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs seek a declaration of their rights to possession of some 250,000 acres of land in New York State, as well as other relief, including monetary damages. Plaintiffs seek certification of the proposed defendant class for the purpose of determining the liability of the proposed class defendants and also seek "conditional certification" of the defendant class for purposes of determining the remedies to which they are entitled from the proposed class defendants.

Plaintiffs propose six defendants serve as representative defendants: (1) the State of New York, (2) the New York State Thruway Authority, (3) the County of Oneida, (4) the County of Madison, (5) Niagara Mohawk Power Corporation, and (6) Oneida Valley National Bank. Plaintiffs seek to have the named defendants represent a class comprised of all persons or entities that occupy or have or claim an interest in any of the lands in dispute.

Defendants Oneida County and Madison County submit this Memorandum of Law in opposition to Plaintiffs’ motion to certify the proposed class.

I. THE RIGHTS OF INDIVIDUAL LANDOWNER-DEFENDANTS

TO POSSESS AND INHABIT THEIR HOMES CANNOT

BE DETERMINED IN A DEFENDANT CLASS ACTION

Plaintiffs declare that the time has now come to resolve the "liabilities of the occupiers" of the disputed lands and that a "defendant class action is by far the most efficient and fairest method of accomplishing this." (Plaintiffs’ Memorandum of Law in Support of Their Motion to Certify the Defendant Class, p. 2) ("Plaintiffs’ Memo"). Plaintiffs’ assertion as to efficiency is dubious, and their assertion as to fairness is simply wrong. A defendant class action under Rule 23 of the Federal Rules of Civil Procedure is not available to determine the rights of private landowner-defendants to possess and inhabit their homes. Plaintiffs’ proposed defendant class does not qualify for certification under Rule 23. Furthermore, certification of the proposed class would constitute a violation of the Fifth Amendment of the United States Constitution.

The class action mechanism under Rule 23 is a procedural expedient. It is not a substantive right. See, Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332, 100 S. Ct. 1166, 63 L. Ed. 2d 427, reh’g den., 446 U.S. 947, 100 S. Ct. 177, 64 L. Ed. 2d 804 (1980). Class actions inherently encroach upon the right of due process guaranteed by the Constitution because they create binding judgments on individuals not present in the actual adjudication of their rights. The constitutionality of Rule 23 rests on the principle that, in certain cases, expediency and efficiency permit a class action, as long as the absent plaintiffs’ or defendants’ due process rights are satisfied through adequate representation. See, Hansberry v. Lee, 311 U.S. 32, 42, 61 S. Ct. 115, 85 L. Ed. 2d 22 (1940). Rule 23 imposes several prerequisites to class certification in order to ensure that due process is protected. The various prerequisites imposed by Rule 23 are not wholly distinct and tend to merge with each other. See, Amchem Products, Inc v. Windsor, 521 U.S. 591, ___, n. 20, 1997 U.S. LEXIS 4032, *61, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997). The cardinal constitutional inquiry in determining the propriety of every class action, however, is whether the putative class representatives can adequately represent the protected rights of absent class members.

Plaintiffs’ proposed defendant class fails to satisfy nearly all of the prerequisites in Rule 23. Moreover, the infirmities of the proposed class under Rule 23 forcefully show that the proposed class is unconstitutional.

Rule 23(a)(2) requires that there are "questions of law or fact common to the class." Plaintiffs’ proposed defendant class includes "all persons or entities that currently occupy or have or claim an interest in the subject lands, and their successors and assigns." (Plaintiffs’ Memo, p. 3; Amended Complaint, ¶19). In asserting commonality under Rule 23(a)(2), Plaintiffs fixate on the fact that they will pursue recovery against each one of the putative class defendants on the basis of the same three theories, i.e., violations of the federal common law, the Trade and Intercourse Act of 1793, and the Treaty of Canandaigua. (Plaintiffs’ Memo, pp. 5-6). Plaintiffs’ commonality argument, however, completely omits the fact that their claims are founded upon more than thirty separate instruments, documents, and letters patent. (Amended Complaint, ¶38, 40). The Court has yet to determine which instruments, documents, and letters patent cover which putative class action defendants, let alone the legal validity of each separate instrument, document, and letter patent. Determining the legal effect of each of the more than thirty instruments, documents, and letters patent at issue entails more than thirty different mixed inquiries of law and fact into their creation and subsequent recognition. The question of the coverage of each instrument, document, and letter patent entails more than thirty different inquiries of fact. Accordingly, each individual defendant in the proposed class would only have a common question with those individuals who own an interest within the coverage of the same instrument, document, or letter patent. There is simply no common question of fact or law among the entire class as proposed by Plaintiffs. Plaintiffs have therefore failed to prove commonality for purposes of Rule 23(a)(2).

Rule 23(a)(3) requires that the "claims or defenses of the representative parties are typical of the claims or defenses of the class." Plaintiffs, noting the "obvious" typicality of defenses among and between the putative defendant class representatives and the other class members, state: "All class members have the same interest, however vain, in establishing that New York State’s transactions were legal and effective." (Plaintiffs’ Memo, p. 8, internal citation omitted). This assertion is meaningless. It states the obvious fact that all putative class defendants (both representatives and other class members) share the common objective of avoiding defeat, but it fails to identify any defenses or to suggest how the proposed representatives’ defenses are actually typical of those of the class as a whole.

The fact is, however, that the proposed class representatives’ defenses are not, as a matter of law, typical of those of the class as a whole. Although the Supreme Court rejected certain defenses in another case on a different record, see County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 236-250, 105 S. Ct. 2173, 85 L. Ed. 2d 491, reh’g den., 471 U.S. 1062, 105 S. Ct. 2173, 85 L. Ed. 2d 491 (1985), each individual member of the proposed class has or may have various defenses based on the individual circumstances of his, her, or their acquisition of title or claim to particular property within the disputed lands. Each individual member of the proposed class will expectedly present arguments and proofs to show that his, her, or their acquisition of property was legally effective. Defenses of this nature are inherently individualized and unique in nature and are therefore not capable of being presented by a representative defendant. See, Catawba Indian Tribe, 973 F.2d 1133, 1137-1138 (4th Cir. 1992); Joseph L. v. Office of Judicial Support, 516 F.Supp. 1345, 1351-1353 (E.D. Penn. 1981); Coniglio v. Highwood Services, Inc., 60 F.R.D. 359, 363-364 (W.D.N.Y. 1972). The Rule 23(a)(3) typicality requirement cannot therefore be satisfied in this case.

Furthermore, a finding of sufficient typicality in this case would be unconstitutional. Each and every individual identified within the proposed class has the due process right to present individual defenses. See, Newburg On Class Actions, 3d Ed., §4.46, p. 4-185 ("Newburg"), citing, Mayor of York v. Pilkington, 25 Eng. Rep. 946, 947 (Ch. 1737). Plaintiffs cannot seriously contest this point. They do, however, attempt to obfuscate it by confusing defenses with "remedies". In their memorandum, Plaintiffs assert that: "It is solidly established that a possible need for individual relief should not deter a court from certifying a class at the stage of the proceedings when the court is engaged only in resolving the merits of plaintiffs’ claims." (Plaintiffs’ Memo, p. 9, quoting, Marcera v. Chinlund, 595 F.2d 1231, 1239 (2d Cir. 1979), vacated on other grounds, 442 U.S. 915, 99 S. Ct. 2833, 61 L. Ed. 2d 281 (1979), op. on remand, 91 F.R.D. 579 (W.D.N.Y. 1981)). The individual defenses implicated by Plaintiffs’ claims, however, go to liability, not remedies. Plaintiffs seem to adopt the view that individualized inquiry may be necessary only at the point when the Court must determine what the victorious Plaintiffs are entitled to from each member of the proposed defendant class. What Plaintiffs fail or refuse to recognize is that the remedial stage of this lawsuit will never occur if the putative defendants prove their individual defenses, which due process guarantees them the right to present. As support for the proposed class action, Plaintiffs glibly state that the Court will have a "variety of procedural devices" at its disposal to resolve remedies issues. If certified, however, the proposed class action (itself just another "procedural device") would deprive the putative class members of the chance to defend themselves in the first place.

Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of the class." Although the "adequacy" inquiry contained in Rule 23(a)(4) is just one of several prerequisites to class certification stated in the Rule, it is nonetheless the single most important because the adequacy inquiry is, at bottom, a basic due process inquiry. See, Hansberry v. Lee, 311 U.S. 32, 42 (1940); Newburg, §4.46, p. 4-185. No class can be constitutionally certified unless the representatives will adequately represent the interests of persons bound by the judgment but absent from the proceedings. Accordingly, from the constitutional perspective, considerations of typicality and commonality (as well as the prerequisites in Rule 23(b), see below) are only associational inquiries regarding the due process bellwether of adequate representation. See, Amchem Products, Inc. v. Windsor, 521 U.S. 591, ___, n. 20, 1997 U.S. LEXIS 4032, *61 (1997); In re Broadhollow Funding Corp., 66 B.R. 1005, 1010-1011 (E.D.N.Y. 1986); Newburg, §4.46, pp. 4-186-187.

1. The Proposed Class Violates Due Process

The United States Constitution will not tolerate the use of a defendant class action to determine the rights of individuals in a community at large to possess and inhabit their homes. If one’s home is not the single greatest property right protected by due process, it is undoubtedly one of the greatest:

Miller v. United States, 357 U.S. 301, 307, 8 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958) (quoting William Pitt). See also, O’Bannon v. Town Court Nursing Center, 447 U.S. 773, 792, 100 S. Ct. 2467, 65 L. Ed. 2d 506 (1980) (Blackmun, concurring, noting that the right to possess one’s home is at the very center of Fifth Amendment due process, which evolved from the Magna Carta’s similar exaltation of the home); Lombard v. Louisiana, 373 U.S. 267, 275, 83 S. Ct. 1122, 10 L. Ed. 2d 338 (1963) (Douglas, concurring, "The principle that a man’s home is his castle is basic to our system of jurisprudence"); United States v. James Daniel Good Real Property, 510 U.S. 43, 114 S. Ct. 492, 126 L. Ed. 2d 490 (1993) (the right to control over one’s home is a "private interest of historic and continuing importance"); United States v. The Premises and Real Property at 4492 South Livonia Road, 889 F.2d 1258, 1264 (2d Cir. 1989) ("an individual’s expectation of privacy and freedom from governmental intrusion in the home merits special constitutional protection"), reh’g denied, 1990 U.S. App. LEXIS 3198 (2d Cir. March 2, 1990). The class action is a procedural device justified in very limited circumstances by efficiency and expediency, and no class action fails to extract its price from due process. Plaintiffs’ assertion that a class action is the fairest way to determine the ownership and habitation rights of whole communities of private citizens is untenable from the due process perspective, regardless of the expediency value from Plaintiffs’ perspective. Certification of the proposed class would require the Court to impose a three-times aggravated violation of the putative individual defendants’ due process rights.

First, as stated above, the Rule 23 class action mechanism itself presents an inherent strain on due process, justified only in certain circumstances as dictated by the Rule and due process itself. Second, it is universally recognized that a defendant class action (as opposed to the far more prevalent plaintiff class action) presents a particularly significant strain on due process. See, Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 808-810, 105 S. Ct. 2965, 86 L. Ed. 2d 628 (1985); Follette v. Vitanza, 658 F.Supp. 492, 507 (N.D.N.Y. 1987); Akerman v. Oryx Communications, 609 F.Supp. 363, 374 (S.D.N.Y. 1984), aff’d in part, app. dismissed in part, 810 F.2d 336 (2d Cir. 1987); Newburg, §4.46, p. 4-187, §4.47. The courts recognize that, for purposes of due process, there is a significant qualitative difference between a non-representative class plaintiff possibly not gaining something as a result of representative litigation and a non-representative class defendant affirmatively losing something as a result of judicial proceedings in which it never actually participated.

The third and fatal encroachment on due process is Plaintiffs’ demand that the Court use a defendant class action, already a constitutionally-suspect mechanism, to determine the rights of thousands of private individuals to keep possession of their very homes – the judicial equivalent of placing an anvil on a three-legged wicker table. The class action mechanism as adopted by Rule 23 was intended primarily to facilitate suits involving many plaintiffs where the small potential recovery for each plaintiff would otherwise render the suit a practical impossibility, thereby allowing a common transgressor to escape liability. See, Amchem, 521 U.S. at ___, 1997 U.S. LEXIS 4032, *46. Plaintiffs seek the opposite. They form a monolithic plaintiff, and wish to use the class action mechanism to take away the most intimate and vital property right from each of thousands of defendants. The due process violation is plain. The drafters of the Fifth Amendment would have no doubt found it ludicrous that citizens could lose their homes without the choice to defend themselves in a court of law.

2. This Court’s Prior Decisions Do Not Support the Proposed Class

In support of certification of the proposed defendant class, Plaintiffs primarily rely on the Court’s past certification of defendant classes in Indian land claim actions. (Plaintiffs’ Memo, p. 2, citing, Canadian St. Regis Band of Mohawk Indians v. State of New York, 97 F.R.D. 453 (N.D.N.Y. 1983)("Mohawk"); Cayuga Indian Nation v. Carey, 89 F.R.D. 627 (N.D.N.Y. 1981)("Cayuga"); Oneida Indian Nation v. State of New York, 85 F.R.D. 701 (N.D.N.Y. 1980)("Oneida")). Beyond purely facial consistencies, however, the cited decisions do not support Plaintiffs’ proposed class in this case.

First and foremost, the plaintiffs-proponents of defendant class certification in the Mohawk and Oneida actions sought to exclude the vast majority of private individual land owners from the defendant class. This distinguishing fact alone renders those decisions totally inapposite to this case. Because the plaintiffs in those actions did not seek a liability determination or remedies against residential landowners, the most compelling due process arguments against certification were never precipitated or made. It cannot be gainsaid that the stakes of the current proposed defendant class are much higher than the classes certified in the Oneida and Mohawk decisions. Defendants’ opposition to the proposed defendant class in this case is in large part driven by the fact that Plaintiffs seek a liability determination against the thousands of private citizens making their homes in the disputed areas. It is no secret that the tremendous public outcry and publicity surrounding the current litigation is largely the result of Plaintiffs’ attempt to dispossess the thousands of families and homeowners who would comprise the proposed class. The defendant class certifications in the prior decisions simply do not have precedential value for Plaintiffs in this case because the proposed class here directly implicates the core due process rights of thousands of individuals not of the type included in the earlier proposed classes. As this Court recognized in Oneida, exclusion of private landowners from a defendant class ensures that "their legal rights with regard to the land will not be directly in jeopardy since they cannot be bound by a determination on liability favorable to plaintiff’." Id. at 708, citing, Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979). If those legal rights are to be put in direct jeopardy, due process dictates that a defendant class action cannot be the mechanism.

3. Impracticability of Joinder Is Insufficient Reason to Support a Class Action

Defendants anticipate that Plaintiffs will offer a reply argument emphasizing that joinder of approximately 20,000 landowners is impossible, and that a class action is therefore the only viable alternative. Rule 23(a)(1) clearly establishes impracticability of joinder as a prerequisite to any class action. Impracticability of joinder, however, is a necessary prerequisite under Rule 23, not a sufficient one. Moreover, impracticability of joinder is simply irrelevant to the propriety of a class action from the constitutional perspective. The defendant class as proposed by Plaintiffs does not adequately protect the due process rights of those it would bind to judgment. The practical impossibility of joining 20,000 landowners in one proceeding notwithstanding, the Court may not sacrifice the due process rights of the proposed class members. Inelegantly but accurately stated, in this case due process is a round hole and the proposed defendant class is a square peg. Neither Rule 23 nor due process can be reshaped to fit the exigencies of Plaintiffs’ claim.

The Supreme Court recently affirmed this bedrock principle. In Amchem Products, Inc. v. Windsor, 521 U.S. 591, 1997 U.S. LEXIS 4032, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997), the Court affirmed the lower court’s rejection of a global class action settlement of asbestos claims because the settlement inherently failed to satisfy the requirements of Rule 23, including the adequacy requirement found in Rule 23(a)(4). The Court noted that, "of overriding importance, courts must be mindful that [Rule 23] as now composed sets the requirements they are bound to enforce." Id. at ___, 1997 U.S. LEXIS 4032, *52. The Amchem decision emphasized that departure from the prerequisites of a proper class action is not justified simply because an objective (in Amchem, a global settlement) cannot seemingly be obtained any other way. This is so, as the Court recognized, even in those cases where the only true resolution requires legislation, yet Congress nevertheless fails to act. Id. at ___, 1997 U.S. LEXIS 4032, *15-16, 65-66. As this Court previously recognized of the Oneida land claims:

One unavoidable ramification of the parties’ continued failure to achieve a non-judicial resolution is that Plaintiffs cannot proceed against the residential landowners of Madison and Oneida Counties in a defendant class action.

D. The Proposed Class Cannot Be Maintained Under Rule 23(b)

Plaintiffs erroneously contend that the proposed class action can be maintained under either Rule 23(b)(1)(B) or Rule 23(b)(3). (Plaintiffs’ Memo, p. 11).

1. The Proposed Class Cannot Be Maintained Under Rule 23(b)(1)(B)

Rule 23(b)(1)(B) contemplates class actions involving a fund or other source of recovery common to all putative plaintiffs. See, County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1303 (2d Cir. 1990); Doe v. Karadzic, 182 F.R.D. 424, 426 (S.D.N.Y. 1998), recon. den., 1999 U.S. Dist. LEXIS 24 (S.D.N.Y. January 7, 1999); United States Trust Company of New York v. Alpert, 163 F.R.D. 409, 419 (S.D.N.Y. 1995), citing, In re Joint Eastern and Southern District Asbestos Litigation, 982 F.2d 721, 735 (1992), mod. on other grounds on reh’g, 993 F.2d 7 (2d Cir. 1993); Kekich v. Travelers Indemnity Co., 64 F.R.D. 660, 667 (W.D.Pa. 1974). Maintenance of an otherwise-qualified class action under Rule 23(b)(1)(B) ensures that one or a relative handful of plaintiffs do not exhaust limited sources of recovery at the expense of other putative plaintiffs.

Plaintiffs’ various claims in this case do not involve a limited or common source of recovery. Rather, their proposed class action is merely the accumulation of thousands of claims against individual defendants. Accordingly, Plaintiffs’ proposed class action is inappropriate for maintenance under Rule 23(b)(1)(B). See, McDonnell Douglas Corp. v. United States District Court, 523 F.2d 1083, 1085 (9th Cir. 1975) (23(b)(1)(B) certification vacated upon writ of mandamus), cert. den., 425 U.S. 911, 96 S. Ct. 1506, 47 L. Ed. 2d 761 (1976); National Auto Brokers Corp. v. General Motors Corp., 60 F.R.D. 476, 491 (S.D.N.Y. 1973). The mere fact that one individual defendant may prevail and another may lose in subsequent litigations if the proposed class is not certified is insufficient to maintain a class under 23(b)(1)(B). Plaintiffs’ potential administrative and financial burdens in bringing separate suits are irrelevant for purposes of Rule 23(b)(1)(B). See, McDonnell Douglas, 523 F.2d at 1086. Rule 23(b)(1) focuses on the nature of the remedies sought and the effects on availability of such remedies in the event a class is not certified. See, Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d, §1777, p. 516 ("Wright, Miller & Kane"). Whether Plaintiffs’ proposed class is certified has absolutely no effect on the ultimate availability of the remedies to which Plaintiffs claim they are entitled.

Assuming, arguendo, that Plaintiffs could properly invoke Rule 23(b)(1)(B) to maintain their proposed class action, maintenance of the proposed class under Rule 23(b)(1)(B) is nevertheless inappropriate. Rule 23(b)(1)(B) supports a class action where separate adjudications "would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests." It is clear that the potential stare decisis effect of litigation against individual landowners on other non-party landowners is insufficient to maintain a class under Rule 23(b)(1)(B). Beyond stare decisis principles, defendants acknowledge that if the proposed class is not certified, a finding of liability against a single residential landowner might have a negative effect on the perceptions regarding the quality of the other residential landowners’ title. Nevertheless, even if, arguendo, this negative effect may indeed be sufficient to satisfy Rule 23(b)(1)(B) in other circumstances, it is clearly not sufficient here. Plaintiffs’ Rule 23(b)(1)(B) argument assumes that the landowners’ protected "interest" for purposes of the rule is the value (presumably in dollars) of their property. This assumption is constitutionally myopic. In this case, the individual landowners possess an exclusive constitutional right to protect their homes from adverse claimants seeking ejectment. This interest is the proper interest to consider for purposes of Rule 23(b) – the Constitution does not assure the landowners that their property will not lose monetary value, but it does assure them that they have an exclusive right to meet individually any challenges to possession of their homes. The constitutional nature of this interest not only necessarily forecloses the proposed class under Rule 23(a)(4), see above, it dictates that the proposed class cannot be maintained under Rule 23(b)(1)(B).

2. The Proposed Class Cannot Be Maintained Under Rule 23(b)(3)

A class action can be maintained under Rule 23(b)(3) if the prerequisites of Rule 23(a) are satisfied and (1) questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and (2) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Not only does the proposed class action fail to satisfy Rule 23(a) (foreclosing maintainability in any event), it independently fails to satisfy the maintenance prerequisites of Rule 23(b)(3). Proof of liability against each putative class defendant depends on questions of law and fact unique to each putative defendant. See above, part I, B. Thus, common questions, if any, clearly do not predominate. See, Wright, Kane & Miller, §1778 at p. 535 ("if the main issues in a case require the separate adjudication of each class member’s individual claim or defense, a Rule 23(b)(3) action would be inappropriate."); see also, Catawba Indian Tribe, 973 F.2d 1133, 1137-1138 (4th Cir. 1992); Joseph L. v. Office of Judicial Support, 516 F.Supp. 1345, 1351-1353 (E.D. Penn. 1981), Coniglio v. Highwood Services, Inc., 60 F.R.D. 359, 363-364 (W.D.N.Y. 1972). Furthermore, the proposed class would violate each landowner’s due process rights, see above, part I, C, and is therefore clearly not "superior" in any sense of the word.

Aside from the constitutional infirmities of certifying the proposed class, the text of Rule 23(b)(3) itself indicates the inappropriateness of maintaining the proposed class. First, Rule 23(b)(3)(A) directs the court to consider "the interest of the members of the class in individually controlling the prosecution or defense of separate actions." The landowners’ overwhelming interest in individual control of their defenses in this action is unassailable, regardless of the degree to which the Constitution protects such interest.

Second, Rule 23(b)(3)(D) directs the court to consider "the difficulties likely to be encountered in the management of a class action." The difficulties of maintaining the Plaintiffs’ proposed class under any section of Rule 23(b) would be extraordinary. Aside from the matter of notice, the insertion of individual landowners as defendants could conceivably grind the litigation in this case to a halt as the representatives of the landowners interpose individually-based legal and factual defenses. See, Wright, Miller & Kane, §1780, at p. 576-577 ("The severity of the management problems in a particular case may be reflected in such matters as the size or contentiousness of the class, the onerousness of complying with the notice requirements, the number of class members that may seek to intervene and participate, or the presence of special individual issues."); see also, Defendants’ Memorandum of Law in Opposition to Plaintiffs’ and Intervenor’s Motions for Leave to File Amended Complaints, part I (describing the significant delays if leave to amend to join the class is granted). Already, a motion to intervene in this action has been served by a citizens’ group purporting to represent the interests of some landowners, and further such efforts are likely in the near future.

In considering whether a class action is superior, the Court should also take into account the fact that this case is being referred to a special master and that all parties have expressed a preference for resolving this case by settlement. Where settlement of a case of this magnitude is likely, or even possible, the Court should avoid certifying a class which could result in the unnecessary expenditure of time and resources, or worse, have a deleterious effect on settlement negotiations. See, Wright, Miller & Kane, §1779 at p. 560. The Court should also consider the potential civil and social upheaval in the community that will result if the proposed class is certified versus the reassurance and calming effect that denial of certification will have in the affected community. See, Wright, Miller & Kane, §1780, at p. 584.

Finally, as a general matter, defendants submit that the proposed class: (1) offers no good faith benefit to Plaintiffs; (2) would not result in any efficiency gains for the Court, the parties, or the community at large; and (3) in reality would impose great costs on the Court, the parties, and the community. Even if Plaintiffs were to prevail against the current Defendants, Plaintiffs cannot reasonably contest that the individual landowners included in the proposed class have the right to present their individual defenses prior to any of the owners being ejected and the individually-owned parcels being transferred to Plaintiffs. Accordingly, individual actions against the approximately 20,000 residential landowners would be inevitable before Plaintiffs could repossess the disputed properties (barring some sort of legislative intervention). Yet, if Plaintiffs fail to prove the invalidity of each of the approximately thirty instruments, documents, and letters patent at issue in this case (or Defendants assert a successful defense), then Plaintiffs’ claims against the individual landowners cannot succeed. Therefore, the question necessarily arises: If Plaintiffs do not need to join the landowners to litigate the invalidity of the instruments, documents, and letters patent, and it would cost Plaintiffs a great deal of time, money, and other resources to join a class of 20,000 private landowners, why wouldn’t Plaintiffs wait to secure a finding of liability against the current Defendants before taking action against the private landowners?

In short, from the legal perspective, no rational actor in Plaintiffs’ place would seek to certify a defendant class including a significant portion of the private population of two counties, particularly given the strong likelihood that such a class would be found unconstitutional. Plaintiffs’ proposed class exposes them to an array of defendants, intervenors, new defenses, expenses, appealable rulings, motions, discovery demands, and delays – none of which have to be incurred to litigate the most important aspect of their case, namely the validity or invalidity of the instruments, documents, and letters patent at issue. It is plain to see that the proposed class is being pursued simply to take whatever advantage lies in stirring-up the fears and anger of the community and the landowners who are the current Defendants’ constituents. See, Defendants’ Memorandum of Law in Opposition to Plaintiffs’ and Intervenor’s Motions for Leave to File Amended Complaints, part III (Plaintiffs’ motion to seek leave to join the class is the product of bad faith).

II. IN THE EVENT A DEFENDANT CLASS IS CERTIFIED,

DUE PROCESS REQUIRES NOTICE TO EACH REPRESENTED

LANDOWNER AND THE PROVISION OF AN OPT-OUT

Certification of a class pursuant to Rule 23(b)(3) requires that each non-representative member of the class be furnished individual notice and the right to opt-out of the class. See, Rule 23(c)(2); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974) ("[I]ndividual notice to identifiable class members is not a discretionary consideration to be waived in a particular case. It is, rather, an unambiguous requirement of Rule 23.").

Rule 23 does not expressly require individual notice or mandatory opt-out rights for classes certified under Rule 23(b)(1). However, the particular circumstances of a Rule 23(b)(1) class action may require individual notice and mandatory opt-out rights as a matter of due process. See, County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1303 (2d Cir. 1990); Newburg; §4.62; see also, Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812, 105 S. Ct. 2965, 86 L. Ed. 2d 628 (1985) (Supreme Court directs that Fourteenth Amendment requires mandatory opt-out for plaintiffs in state law class action where forum state lacked personal jurisdiction over out-of-state plaintiffs). Plaintiffs apparently concede that individualized notice is called for in this case. (Plaintiffs’ Memo, p. 12).

Plaintiffs naturally do not address the propriety of opt-out rights under 23(b). However, in light of the fact that any defendant class action triggers heightened constitutional scrutiny and given the magnitude of the loss faced by each putative class member, it is clear that due process requires mandatory opt-out rights in this case. If the Court is indeed willing to hold that due process allows an individual to potentially forfeit his or her home by means of a defendant class action, the Court should preserve the individual’s right to be excluded. The defendant class action is a blunt instrument at its best; a mandatory defendant class action seeking possession of individual homes is an unconstitutional bludgeon.

CONCLUSION

For the foregoing reasons, defendants respectfully request the Court to deny Plaintiffs’ motion to certify the proposed defendant class.

Respectfully Submitted,

NIXON, HARGRAVE, DEVANS & DOYLE llp
Attorneys for Defendants

__________________________________

G. Robert Witmer, Jr., Esq.
Bar Roll No. 104937
Clinton Square
Rochester, New York 14603
Telephone: (716) 263-1000
Facsimile: (716) 263-1600
David M. Schraver, Esq., Of Counsel,
Timothy E. Delahunt, Esq., On the Brief.