United States District Court, M.D. Tennessee, Nashville Division
ORDER DISMISSING DEFENDANT'S MOTION TO DENY CLASS
M. LAWSON UNITED STATES DISTRICT JUDGE.
their complaint, the plaintiffs made class allegations,
proposing to certify a class that included past and future
female Wal-Mart retail store employees (other than store
managers and pharmacists) in Wal-Mart's Region 43. The
plaintiffs later filed a motion to certify a class that
explicitly excluded co-managers from that class definition
and limited the class membership to pre-2009 employees.
Observing that apparent inconsistency, Wal-Mart filed a
separate motion to deny class certification, in which it asks
the Court to deny class certification to those individual
absent class members who might have been included in a
definition suggested in the complaint, but would be excluded
from the definition proposed in the plaintiffs' class
certification motion; and to direct the plaintiffs to notify
those individuals who could fall in that gap that they might
not be included in the proposed class.
the Supreme Court issued its decision in China Agritech,
Incorporated v. Resh, ___ S.Ct. ___, 2018 WL 2767565
(June 11, 2018), the plaintiffs withdrew their class
certification motion, conceding that any class claims would
be untimely. They do not intend to pursue their class claims
any longer, although they will proceed with the individual
claims in the case. Wal-Mart, however, has declined to
withdraw its own motion to deny class certification
and continues to ask the Court for a ruling on it. But
Wal-Mart's motion is not justiciable, because there no
longer is a “live” issue of class certification
before the Court; and China Agritech
notwithstanding, Wal-Mart is seeking a declaration on the
claims of individuals outside the scope of the proposed
class, which would be an advisory opinion on a hypothetical
state of facts or one that does not affect the right of
litigants before the Court. Therefore, the Court will dismiss
III prohibits federal courts from issuing opinions that do
not resolve ‘actual controversies' or bring about
change for the parties.” Flight Options, LLC v.
Int'l Brotherhood of Teamsters, Local 1108, 873 F.3d
540, 546 (6th Cir. 2017) (citing Muskrat v. United
States, 219 U.S. 346, 361 (1911) and Chi. & S.
Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113-14
(1948)). “Such opinions may arise where the parties are
not adverse, the issue is moot, or the court cannot grant
relief.” Id. (citations omitted); see also
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)
(“A case becomes moot - and therefore no longer a
‘Case' or ‘Controversy' for purposes of
Article III - ‘when the issues presented are no longer
“live”' . . . .”). “Federal
courts may not ‘decide questions that cannot affect the
rights of litigants in the case before them' or give
‘opinion[s] advising what the law would be upon a
hypothetical state of facts.'” Chafin v.
Chafin, 568 U.S. 165, 172 (2013) (quoting Lewis v.
Cont'l Bank Corp., 494 U.S. 472, 477 (1990)).
asks the Court in its motion to declare that certain
individuals, who are not part of this lawsuit in any
capacity, may not join it as absent class members. Such a
ruling would amount to nothing more than advice as to how
those individuals might fair if they would choose to press a
discrimination claim as a group against Wal-Mart. And the
decision would be made without their input, depriving them
and the Court of the “clear concreteness provided when
a question emerges precisely framed and necessary for
decision from a clash of adversary argument.”
United States v. Fruehauf, 365 U.S. 146, 157 (1961).
“It must be remembered that advisory opinions are not
merely advisory opinions. They are ghosts that slay.”
Felix Frankfurter, A Note on Advisory Opinions, 37
Harv. L. Rev. 1002, 1008 (1924). That is why it is
impermissible for the Court to issue a ruling affecting the
rights of individuals outside the proposed class. Because
unnamed class members may not be considered parties to a
class-action litigation until after the class is certified,
see Smith v. Bayer Corp., 564 U.S. 299, 314 (2011),
it plainly follows that those outside the scope of the
proposed class are not, and never will be, litigants before
the Court. The Court is constrained to decide issues
affecting only those litigants before it.
routinely deny as moot motions to deny class certification
once class claims are abandoned. See Hernandez v.
Dyck-O'Neal, Inc., No. 15-337, 2016 WL 2961262, at
*1 (M.D. Fla. May 23, 2016) (denying as moot motion to deny
class certification after plaintiff consented to striking
class allegation from complaint); Gates v. Sprint
Spectrum, L.P., No. 05-2340, 2007 WL 1455976, at *2 (D.
Kan. May 10, 2007) (denying as moot the defendant's
motion to deny class certification because the
plaintiff's proposed second amended complaint removed all
class allegations); see also Magallon v. Robert Half
Int'l, Inc., 311 F.R.D. 625, 630 n.1 (D. Or. 2015)
(“Because the class plaintiff seeks to certify is
different from the class addressed in defendant's motion
to deny class certification, defendant's motion is denied
as moot.”). Here, not only did the plaintiffs seek to
certify a class different from the class in Wal-Mart's
motion, but also the plaintiffs indicated in their second
supplemental brief that they have no objection to filing an
amended complaint which excludes reference to the class
claims. See [dkt. #296] (Pg ID 11036).
motion to deny class certification, Wal-Mart has not
presented an issue that ought to be decided by this Court,
especially now that the ...