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Johnson v. Time Warner Entertainment-Advance/ Newhouse Partnership

United States District Court, D. South Carolina, Columbia Division

August 31, 2017

Stanley Johnson, individually and on behalf of all others similarly situated, Plaintiff,
Time Warner Entertainment-Advance/ Newhouse Partnership d/b/a/ Time Warner Cable, and Time Warner Cable Southeast LLC d/b/a Time Warner Cable, Defendants.



         This matter is before the court on three related motions: (1) Plaintiff's motion for class certification (ECF No. 163 (“Class Certification Motion”)); (2) Defendants' motion to exclude certain testimony of Plaintiff's expert John A. Kilpatrick, Ph.D. (“Dr. Kilpatrick”) (ECF No. 178 (“Daubert Motion”))[1]; and Plaintiff's motion to strike certain evidence on which Defendants rely in opposing the Class Certification Motion and pursuing their Daubert Motion (ECF No. 195 (“Motion to Strike”)). These motions are resolved as follows:

• Plaintiff's Class Certification Motion is denied (infra Discussion § I (pp. 6-24));
• Plaintiff's Motion to Strike is denied (infra Discussion § II (pp. 24-27));
• Defendants' Daubert Motion is granted (infra Discussion § III (pp. 27-38)).


         Plaintiff Stanley Johnson (“Johnson”) filed this action on April 21, 2015, seeking recovery on behalf of himself and others similarly situated for alleged unauthorized placement of cable transmission lines and related equipment (“Cable Facilities”) on land he purchased on July 1, 2014.[2] Johnson alleges the Cable Facilities were placed on his property (prior to his purchase) by Defendants Time Warner Entertainment-Advance/Newhouse Partnership d/b/a/ Time Warner Cable, and Time Warner Cable Southeast LLC d/b/a Time Warner Cable (collectively “TWC”) or their predecessors.

         Early motions practice.

         The matter has been before the court on a variety of procedural and potentially dispositive motions. These include motions to remand and dismiss, three motions for summary judgment, and a motion to deny class certification. See ECF No. 17, 39 (motion to remand and order denying motion); ECF Nos. 44, 57 (jurisdictional orders); ECF No. 35, 70, 73, 82, 84 (motions to dismiss and for summary judgment and orders resolving the same); ECF Nos. 90, 102, 109, 120 (second and third motions for summary judgment and orders denying those motions); ECF No. 110, 123 (motion to deny class certification and order granting that motion in part and denying it in part).

         Second and third motions for summary judgment.

         The second and third motions for summary judgment are of some significance to the present motions because they addressed arguments that may impact manageability of a class action. These motions raised potential factual and affirmative defenses to Johnson's claims that may not be susceptible to resolution on a class-wide basis including but not limited to whether the prior owner of Johnson's property consented to the presence of Cable Facilities and whether TWC acquired a prescriptive easement due to the more-than-twenty-year presence of the Cable Facilities on Johnson's property.

         Motion to deny class certification.

         TWC's motion to deny class certification is of even greater significance because it raised several arguments on which TWC now relies in opposing Johnson's motion for class certification. ECF No. 110. Most critically, TWC argued class members were not readily identifiable because it was not possible to identify potential class members without parcel-specific investigation including to determine whether (1) TWC Cable Facilities were located on (or above) the property and (2) if so, whether the Cable Facilities fell within an area of permissive use such as public rights-of-way or platted utility easements. E.g. ECF No. 110-1 at 8.[3]

         TWC raised related concerns as to manageability. See, e.g., id. at 10 n.3 (arguing any modification of the class definition that shifted resolution of these issues to a merits determination would pose manageability or common relief concerns precluding certification under Fed.R.Civ.P. 23(b)(3) or (b)(2)). In addition to concerns relating to identification of class members, TWC pointed to arguments raised in its motions for summary judgment on Johnson's individual claims as evidencing the need for individualized proof (e.g. whether an existing or prior landowner had given consent to the presence of the Cable Facilities and whether TWC had acquired a prescriptive easement).

         Johnson opposed this motion relying, in part, on a declaration by Dr. Kilpatrick. Dr. Kilpatrick asserted (and Johnson argued) the issues in this action are comparable to those in Barfield v. Sho-Me Power Elec. Coop, 2013 WL 3872181 (W.D. Mo. 2013), in which Dr. Kilpatrick served as a testifying expert.[4] ECF No. 122 ¶ 2. Dr. Kilpatrick explained his intended methodology could be used “to ascertain the scope of the class [using] documents that . . . are likely available and probative to this inquiry.” Id. ¶ 7. Dr. Kilpatrick opined this action is, “from an analytical and appraisal perspective, very similar” to Barfield, where “damages were determined to be a simple function of the linear distance of cable easement transiting each property.” Id. ¶ 8. He asserted determining “actual length and location of these easements or easement segments is relatively simple, since records of cable installations and locations will be produced during the discovery process.” Id. ¶ 9; see also Id. at ¶¶ 10, 11 (explaining mapping parcels at issue would involve a “straightforward” process using geographic information systems (“GIS”) software that would provide “a detailed listing of the portions of the cable transiting each property, and a simple valuation formula which is consistent and systematic across the entire class”).

         The court held oral argument on TWC's motion to deny class certification on July 12, 2016. See ECF No. 126 (transcript of hearing). During the hearing, the court noted the circumstances at issue in Barfield were “much, much simpler” than in this action. Id. at 4-5. The court expressed concerns as to how a class could be adequately identified and whether individualized issues beyond class identification might preclude certification. E.g., id. at 4.

         The court granted the motion to deny class certification as the class was then defined, a ruling Johnson conceded was proper because of a fail-safe problem with the proposed class definition. The court denied the motion to the extent it sought to preclude class discovery or post-discovery pursuit of certification of a more narrowly defined class. It, nonetheless, forewarned counsel the class would have to be defined so “membership may be determined based on objective criteria through a manageable process.” Id. at 31.

         Subsequent proceedings.

         On July 21, 2016, the court entered a scheduling order setting an April 18, 2017 deadline for completion of class discovery and a May 2, 2017 deadline to move for class certification. Discovery proceeded and concluded as scheduled with Johnson identifying Dr. Kilpatrick as an expert witness on class identification and damages. Dr. Kilpatrick was deposed on March 31, 2017.

         Johnson filed his Class Certification Motion on May 3, 2017. ECF No. 163. He subsequently amended the class definition to correct an oversight (exclusions addressed in second paragraph below), moving for certification of a class defined as follows:

All owners in fee of real property in South Carolina-other than owners of railroad rights-of-way, platted utility easements, and/or public rights-of-way, streets and/or highways-upon whose property Time Warner Cable has installed and maintained cable (i.e., coax or fiber) or other communication transmission lines and related equipment (i.e., strand, pole pedestals, amplifiers, etc.) above the land on third-party utility poles.
Excluded from the class are any federal, state, or local governmental agencies and any judges who have decided some or all issues in the case, any persons related to a judge in a manner that would disqualify the judge from hearing the case, and any chambers staff working for the assigned judge or other courthouse staff who perform tasks relating to this matter.

         ECF No. 169.

         Through his reply memorandum, Johnson proposes a further modification to remove the following exclusionary language from the first paragraph of the class definition: “other than owners of railroad rights-of-way, platted utility easements, and/or public rights-of-way, streets and/or highway.” ECF No. 194 at 10 (arguing this would “defer possible right-of-way and platted utility easement issues to the merits phase of the litigation” and suggesting the modification may be necessary to avoid creating a fail-safe class).[5]

         TWC also filed a Daubert Motion, seeking to exclude Dr. Kilpatrick's proffered opinion relating to class identification. ECF No. 178. Johnson opposed that motion and filed a Motion to Strike certain evidence on which TWC relies. All three motions are now ripe for resolution.


         I. Class Certification Motion

         A. Rule 23 Standard

         Class certification is governed by Federal Rule of Civil Procedure 23. Rule 23(a) provides 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.” Fed.R.Civ.P. 23(a). In addition, a class must satisfy the requirements set forth in one of the three sub-parts of Rule 23(b), which allow certification where: (1) individual actions would risk inconsistent adjudications or adjudications dispositive of the rights of non-parties; (2) class-wide injunctive or declaratory relief is sought and appropriate; or (3) legal or factual questions, common to the proposed class members, predominate over questions affecting individual members. See Gunnells v. Healthplan Servs., 348 F.3d 417, 423 (4th Cir. 2003).

         In addition to these explicit requirements, “Rule 23 contains an implicit threshold requirement that the members of a proposed class be ‘readily identifiable.'” EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014). This is often referred to as the “ascertainability” requirement. Id.

         Certification is “proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Comcast v. Behrend, 569 U.S. 27, ___, 133 S.Ct. 1426, 1432 (2013) (internal marks omitted). The proponent of class certification carries the burden of establishing each of the requirements for class certification is satisfied. Id.; Gariety v. Grant Thornton, LLP, 368 F.3d 356, 362 (4th Cir. 2004). This burden does not shift even if the underlying issue is one on which the party opposing certification bears the burden of proof at trial. See Thorn v. Jefferson-Pilot Life Ins. Co. 455 F.3d 311');">455 F.3d 311, 321 (4th Cir. 2006).

         While class certification should not be conditioned on the merits of the case, findings necessary to the class certification decision may overlap with the merits. Brown v. Nucor, 785 F.3d 895, 903 (4th Cir. 2015). Where certification is sought under Rule 23(b)(3), the court must take a “‘close look' at whether common questions predominate.” Comcast, 569 U.S. at ___, 1335 S.Ct. at 1432. Ultimately, the court “has broad discretion in deciding whether to certify a class, but that discretion must be exercised within the framework of Rule 23.” Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001) (quoting In re American Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996)).

         B. Ascertainability

         1. Ascertainability Requirement

         As the Fourth Circuit explained in EQT Prod. Co. v. Adair:

We have repeatedly recognized that Rule 23 contains an implicit threshold requirement that the members of a proposed class be ‘readily identifiable.'” Hammond v. Powell, 462 F.2d 1053, 1055 (4th Cir. 1972); see also In re A.H. Robins Co., 880 F.2d 709, 728 (4th Cir. 1989) (“Though not specified in [Rule 23], establishment of a class action implicitly requires . . . that there be an identifiable class . . . .”), abrogated on other grounds, Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997). Our sister circuits have described this rule as an “ascertainability” requirement. See, e.g., Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 592-94 (3d Cir. 2012). . . .
However phrased, the requirement is the same. A class cannot be certified unless a court can readily identify the class members in reference to objective criteria. See Marcus, 687 F.3d at 593; see also Crosby v. Soc. Sec. Admin., 796 F.2d 576, 579-80 (1st Cir. 1986) (finding that a class failed to satisfy Rule 23 requirements because it would be impossible to identify class members without “individualized fact-finding and litigation”).
The plaintiffs need not be able to identify every class member at the time of certification. But “[i]f class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials, ' then a class action is inappropriate.” Marcus, 687 F.3d at 593; see also 7A Charles Alan Wright et al., Federal Practice & Procedure § 1760 (3d ed. 2005) (“[T]he requirement that there be a class will not be deemed satisfied unless . . . it is administratively feasible for the court to determine whether a particular individual is a member.”).

EQT, 764 F.3d at 358 (reversing decision to certify class and remanding for further consideration where “proposed classes raised serious ascertainability issues because they are defined to include both former and current gas estate owners” and “resolving ownership based on land records can be a complicated and individualized process[, ]” which the trial court failed to adequately address).[6]

         2. Arguments

         Johnson opening argument.

         Johnson argues the class may be readily identified using objective criteria by (1) comparing data on different GIS maps to identify parcels above which TWC has Cable Facilities and then (2) eliminating parcels that fall within the exclusions from the class definition (railroad rights-of-way, platted utility easements, and public rights-of-way, streets and highways), again using GIS databases. He relies on the report and testimony of Dr. Kilpatrick to support the feasibility and manageability of both steps in the process.

         TWC response.

         TWC responds that neither step has been or can be done using Dr. Kilpatrick's proposed methodology. It argues Dr. Kilpatrick's work to date is deficient for reasons addressed below as to TWC's Daubert Motion (infra Discussion § III). It maintains the class cannot, in any event, be identified without physical examination of each parcel and a search of its title history, precluding a finding the class is readily ascertainable using the methods applied or proposed by Dr. Kilpatrick.

         Johnson reply.

         Dr. Kilpatrick's Second Supplemental Declaration describes Dr. Kilpatrick's work to date as identifying a preliminary class list. It offers assurances he can and will employ additional steps to evaluate additional data to fully identify the class at later stages of the litigation. The data and methods are only generally described but all appear to be based on examination and comparison of electronic data rather than any physical examination of property or search of public records. Kilpatrick 2d Supp. Decl. ¶¶ 4, 5, 8-10. Johnson does not suggest any means of identifying the class other than through Dr. Kilpatrick's past and intended future work.

         As noted above, Johnson also suggests, through his reply, that the class definition should be modified to remove the clause excluding class members whose parcels are burdened by Cable Facilities falling within Excluded Areas of Permissive Use. ECF No. 194 at 9, 10. He argues this modification would simplify identification of the class as it would only be necessary to determine the “owners in fee of real property in South Carolina . . . upon whose property Time Warner Cable has installed and maintained [Cable Facilities] above the land on third-party utility poles.” Id.

         3. Discussion -Merits (Ascertainabiltity)

         Effect of ruling on and overlap with Daubert Motion.

         For reasons explained in Section III of this order, the court excludes Dr. Kilpatrick's opinion on class identification. Because Johnson suggests no other means of identifying the class, this leaves him with no evidence to support ascertainability. Even if the court did not exclude Dr. Kilpatrick's opinion on class identification, it would find his opinion on this issue unpersuasive for the same reasons the court grants TWC's Daubert motion as summarized below.

         Limited nature of work to date.

         Dr. Kilpatrick's Report and Johnson's motion for class certification suggest the class has been identified, subject to possible minor modifications. See, e.g., Kilpatrick Report ¶¶ 9, 10, 26, 59; ECF No. 163-1 at 15-17 (Johnson's opening memorandum referring to identification of class of 179, 827 landowners). In contrast, in his March 31, 2017 deposition, Dr. Kilpatrick described his work, thus far, as identifying only “people who at max may be in the class” or a “universe of potential claimants” and acknowledged substantial additional work was needed to address inaccuracies in the data used and to address Excluded Areas of Permissive Use. Kilpatrick dep. at 63, 64, 80, 92, 93, 113-14.[7] Similarly, in his July 5, 2017 Second Supplemental Declaration, Dr. Kilpatrick describes his work, thus far, as identifying a “preliminary list of class members” and addresses multiple additional steps needed to identify the class. Kilpatrick 2d. Supp. Decl. ¶¶ 4, 9 (dated July 5, 2017).

         In his Second Supplemental Declaration, Dr. Kilpatrick effectively concedes, as TWC argues, that his staff only used two of the three GIS layers he believed had been used to identify the class at the time of his deposition. Kilpatrick 2d Supp. Decl. ¶¶ 8, 9. He, nonetheless, maintains the layers that have been used allow him to show the “easement length for valuation purposes, ” “length of trespass for each parcel, ” or “amount of trespass (in linear feet).” Id. ¶ 10 (averring this method was accepted in Barfield). He fails to explain how his ability to measure the length of an alleged trespass for purposes of valuation cures the deficiencies in determining whether there is, in fact, a trespass.

         In sum, Dr. Kilpatrick concedes he has not yet completed even the first step required to identify the class: determining whether, in fact, TWC Cable Facilities exist over parcels proposed to be included in the class. He has, at most, identified a universe of parcels that may, through future quality control steps, reveal parcels actually burdened by TWC Cable Facilities. Thus, even using Johnson's proposed Reply Class Definition, Dr. Kilpatrick has, by his own admission, not yet identified the class (or even parcels whose owners are class members). Using Johnson's Opening Class Definitioin, the problems ...

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