Ascertainability Uber Alles? Not in a (b)(2) Class Action, Says the Third Circuit

Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015).  In Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), a damages class action under Federal Rule of Civil Procedure Rule 23(b)(3), the Third Circuit manufactured a wholly new and onerous requirement that the identities of class members be fully “ascertainable” in order to obtain class certification.  That was so even though the subject of the suit was a consumer product of which no sales records are normally kept by most retailers or by the defendant manufacturer, making it at best extremely difficult to certify many consumer class actions.  It appeared that Carrera might sweep all before it, as some courts elsewhere adopted its misguided viewpoint.  But some other courts rejected Carrera, and the fact that four experienced Third Circuit judges issued a compelling dissent from the denial of en banc review in Carrera gave reason to believe that the court might perceive that it had gone too far.

This opinion by Chief Judge McKee, one of the dissenters from the denial of en banc review in Carrera, joined by Judges Smith (who voted to deny en banc review in Carrera) and Sloviter (who, as a senior judge, did not participate in the en banc vote in that case) rejects the application of the Carrera ascertainability notion in a Rule 23(b)(2) class action.  The case involved a prisoner’s claim, on behalf of a putative class, that prison officials at a federal penitentiary in Pennsylvania for inmates with “violent tendencies” or “a  history of gang involvement” had a “pattern, practice, or policy of improperly placing inmates who are known to be hostile to each other in the same cell.”  Plaintiff sued under the Eighth Amendment and the Federal Tort Claims Act (“the FTCA”), and sought only injunctive and declaratory relief, under Rule 23(b)(2), not damages, so that Rule 23(b)(3) was not implicated.

The District Court granted defendants summary judgment as to both claims and denied certification of an injunctive relief class under Rule 23(b)(2).  Plaintiff appealed.  The Third Circuit upheld the dismissal of the FTCA claim for failure to exhaust administrative remedies before the Bureau of Prisons, but reversed the summary judgment that had been granted to defendants on the Eighth Amendment claim.  The panel also reversed the denial of class certification.

Chief Judge McKee provided a detailed discussion of the ascertainability idea, whose origins are “murky” and whose precise definition is “elusive.”  He observed that Rules 23(b)(2) and 23(b)(3) create “two remarkably different litigation devices.”  After a lengthy analysis of those differences, he concluded that “[b]ecause the focus in a (b)(2) class is more heavily placed on the nature of the remedy sought, and because a remedy obtained by one member will naturally affect the others, the identities of individual class members are less critical in a (b)(2) action than in a (b)(3) action.”  Thus, it did not follow that “ascertainability is always a prerequisite to class certification,” and Chief Judge McKee cited cases from other Courts of Appeal that had rejected ascertainability as a requirement for (b)(2) classes.

The panel did not jettison the idea that there must be a “class” in order to win class certification.  Instead, Chief Judge McKee emphasized that, in the (b)(2) context, “a properly defined ‘class’ is one that: (1) meets the requirements of Rule 23(a); (2) is sufficiently cohesive under Rule 23(b)(2) and our guidance in Barnes [v. American Tobacco Co.], 161 F.3d [127,] 143 [3d Cir. 1998)]; and (3) is capable of the type of description by a ‘readily discernible, clear, and precise statement of the parameters defining the class, as required by Rule 23(c)(1)(B), and our discussion in Wachtel [v. Guardian Life Ins. Co.], 453 F.3d [179,] 187 [(3d Cir. 2006)].  No additinal requirements need be satisfied.”

This opinion does not represent the overthrow of Carrera.  Quoting Marcus v. BMW of North America, LLC, 687 F.3d 583, 593 (3d Cir. 2012), Chief Judge McKee stated that, in (b)(3) cases, the ascertainability requirement “served several important objectives that either do not exist or are not compelling in (b)(2) classes.”  Nonetheless, the Third Circuit has for the first time limited the overly broad and unrealistic ascertainability doctrine that it established in Carrera, Marcus, and Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349 (3d Cir. 2013), all of which were (b)(3) damage class cases.  It is to be hoped that the court will recognize in future (b)(3) cases the need to pare back ascertainability in the (b)(3) context.

The panel’s ruling on the question of summary judgment was also an important one.  Plaintiff had submitted a Rule 56(d) affidavit in opposition to that motion, asserting that he needed discovery in order to respond properly to defendants’ summary judgment motion, and that the motion should be denied for that reason alone.  The District Court did not address that affidavit.

On appeal, defendants asserted that, in order to invoke Rule 56(d),  plaintiff was required not merely to submit an affidavit regarding his need for discovery to oppose the summary judgment motion, but to file a motion of his own regarding the need for discovery.  Defendants cited two cases (only one of them precedential) in which the Third Circuit appeared to require such a motion in order for a party to get the benefit of Rule 56(d).

But Chief Judge McKee did not read those opinions as “actually requiring” a motion.  He noted that “the text of the rule, Advisory Committee’s notes, our own precedent, and guidance from other circuit courts all indicate that a formal motion is not required by the Rule.”  Chief Judge McKee went on to analyze each of those sources in detail to support the panel’s result.  He also observed that “[i]f discovery is incomplete, a district court is rarely justified in granting summary judgment,” unless the requested discovery pertains to facts that are not material to the basis for the summary judgment motion or the Rule 56(d) affidavit is inadequate.  “An adequate affidavit or declaration specifies what particular information that is sought; how, if disclosed, it would preclude summary judgment; and why it has not been previously obtained.”

The District Court’s failure even to consider plaintiff’s Rule 56 affidavit was an “abuse of discretion.”  The panel reversed and remanded so that the District Court could consider that affidavit.