United States District Court, D. South Carolina, Columbia Division
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.
OPINION AND ORDER ON MOTIONS FOR CLASS CERTIFICATION,
TO EXCLUDE EXPERT WITNESS, AND TO STRIKE EXHIBITS ECF NOS.
163, 178, 195
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
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”)); 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)).
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. 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
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).
and third motions for summary judgment.
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
to deny class certification.
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
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).
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. 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
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.
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.
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.
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
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
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
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.
Class Certification Motion
Rule 23 Standard
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).
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.
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
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)).
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
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
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).
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.
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.
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.
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.”
Discussion -Merits (Ascertainabiltity)
of ruling on and overlap with Daubert
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.
nature of work to date.
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. 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).
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.
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 ...