The opinion of the court was delivered by: CHARLES WEINER, Senior District Judge
MEMORANDUM OPINION AND ORDER
In the case of Webb v. Merck, 206 F.R.D. 399 (E.D.
Pa. 2002), the twenty named plaintiffs brought an employment discrimination
action against Merck & Co., Inc. ("Merck"), alleging that Merck
engaged in intentional ("disparate treatment") discrimination in
the Civil Rights Act of 1866, 42 U.S.C. § 1981, Title VI of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000d and Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
Plaintiffs sought to have this court certify a class to adjudicate
"compensation disparity" claims made by or on behalf of the following
class members: "All black employees who work (or former employees who
have worked since January 1, 1989) for Merck & Co., (a) in the Merck
Manufacturing Division at a plant in Pennsylvania, New Jersey or Georgia,
or (b) as a Merck sales representative in the Mid-Atlantic Regional
Business Group of Merck's United States Human Health Division."
Webb, 206 F.R.D. at 401. Although plaintiffs sought
compensatory and punitive damages, they sought class certification only
as to liability issues as well as their damage claims seeking equitable
relief regarding compensation issues.
We denied the motion for class certification. At the outset, we noted
the enormity of the potential class. The class would have included "all
black employees at every level and every grade at six separate facilities
in five states, in two divisions, including union and non-union
employees and their supervisors, managers and non-managers, sales
representatives and secretaries and their supervisors and any other
employee from vice-president to janitor." Id. We noted that
plaintiffs themselves estimated that the number of potential class
members could exceed 5000.
We found that plaintiffs could not satisfy the commonality and
typicality requirements of Rule 23(a) of the Federal Rules of Civil
Procedure for class certification. We noted that "other than sharing the
common position of being black employees of Merck, the plaintiffs'
allegations are discrete and individualized. Plaintiffs were employed in
different states, in different divisions, in different facilities and at
different levels within the company hierarchy.
Their grievances are not susceptible to generalized proof or
defenses. In essence, this action is nothing more than a consolidation of
20 accounts of individualized disparate treatment." Id. at 408.
We also concluded that "resolution of the merits of the claims would
degenerate into an unmanageable plethora of multiple individual
determinations for each individual proposed class member."
Webb, 206 F.R.D. at 406.
We also found that there were too many individualized issues to allow a
class action to be maintained under Rule 23(b)(2). We stated that "in
order to resolve each putative class member's claim, the fact finder will
be forced to evaluate the individualized facts and circumstances
surrounding compensation decisions relating to initial assignments,
performance reviews, job postings, promotions and overall compensation."
Id. at 409.
The plaintiffs sought permission with our Court of Appeals pursuant to
Rule 23(f) of the Federal Rules of Civil Procedure to appeal this Court's
ruling denying class certification. Plaintiffs' request was denied by
Order dated June 18, 2002.
The above-captioned actions are all related to Webb and
indeed were filed by the same counsel who represented the plaintiffs in
Webb, Like Webb, the main impediment to class
certification in these actions is that they challenge hundreds if not
thousands of independent employment decisions. The Rodgers, Cates,
Thompson, and Martin actions were filed on behalf of a
class consisting of all African-Americans who have been employed or were
denied employment by Merck during a relevant time period. The
Stith action was filed "on behalf of present and former
African-American employees who work(ed) at Merck's facility in Rahway,
NJ." Stith Complaint at paragraph 7. The Chisom
action was filed "on behalf of present and former African-American
employees who work(ed) at Merck's facility in Whitehouse Station,
NJ. Chisom Complaint at paragraph 7. In all of the
actions, plaintiffs contend they have been subjected to a continuous and
pervasive pattern of racial discrimination by Merck in that Merck's
managers and supervisors have created a racially hostile work
environment, Merck's equal employment and anti-discrimination policies
are applied by its managers and supervisors in aa subjective manner with
little guidance from Merck, and Merck has condoned the general practice
of discriminating against Blacks in the areas of hiring, compensation,
promotion, demotion, job assignments, training, transfer, layoff,
discharge and discipline. In all of the actions, plaintiffs seek
declaratory and injunctive relief as well as compensatory and punitive
damages "in amounts to be determined at trial." Presently before the
Court is Merck's renewed motion to strike plaintiff's class allegations
in all of these actions pursuant to Rules 23(c)(1) and 23(d)(4) of the
Federal Rules of Civil Procedure. For the reasons which follow, the
motion is granted.
At the outset, we note that plaintiffs argue that this court lacks
authority to strike class action allegations from the complaint until
after the plaintiffs have filed a motion for class certification. We do
not agree. Rule 23(c) provides that the court should make a
determination as to whether a class action is maintainable "as soon as
practicable after the commencement of an action." If the court determines
that the prerequisites of Rule 23 are not satisfied, then the court may
issue an order "requiring that the pleadings be amended to eliminate
therefrom allegations as to representation of absent persons." Fed.R.Civ.
Despite the length of time which has expired since these actions were
filed, plaintiffs have never filed a motion for class certification in
any of them. There is no point in waiting any further. It is clear from
the allegations in the complaints and the affidavits plaintiffs
have since submitted that plaintiffs' claims cannot satisfy the
requirements of Rule 23(b)(2) or (b)(3). No amount of additional class
discovery will alter this conclusion. To the contrary, additional
discovery will in all likelihood further illuminate the subjective and
intangible differences of each class member's individual circumstances.
To obtain class certification, plaintiffs must establish all four
elements of Rule 23(a) of the Federal Rules of Civil Procedure along with
one provision of Rule 23(b). Johnston v. HBO Film Management.
Inc., 265 F.3d 178, 183 (3d Cir. 2001). If all four elements of
Rule 23(a) are satisfied, the court must also find that the class is
maintainable under Rule 23(b)(1), (2) or (3). In these cases, plaintiffs
seek certification pursuant to either 23(b)(2) or 23(b)(3). Because
plaintiffs cannot satisfy either Rule 23(b)(2) or (3), we need not
address whether the proposed class meets the requirements of Rule 23(a).
Rule 23(b)(2) allows certification where, "the party opposing the class
has acted or refused to act on grounds generally applicable to the class,
thereby making appropriate final injunctive relief or corresponding
declaratory relief with respect to the class as a whole." Class actions
certified under (b)(2) are restricted to those cases where the primary
relief sought is injunctive or declaratory relief. Barnes v.
American Tobacco Co., 161 F.3d 127, 142-43 (3d Cir. 1998), cert
denied, 526 U.S. 1114 (1999). The reason for this restriction is
that unnamed members of classes certified under Rule 23(b)(2) cannot opt
out as they can in Rule 23(b)(3) actions. As a result, class cohesion is
necessary and is presumed where a class suffers from a common injury and
seeks class-wide injunctive relief. Id. at 142-143. In
contrast, when a class seeks monetary relief, the class becomes less
cohesive because assessing these damages often necessitates an
examination into individual claims.
The Court of Appeals for the Fifth Circuit has held that "monetary
relief predominates in (b)(2) class actions unless it is incidental to
requested injunctive or declaratory relief." Allison v. Citgo
Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998).
Incidental damages are those "that flow directly from liability to the
class as a whole on the claims forming the basis of the
injunctive or declaratory relief." Id. (emphasis in original).
The Allison Court also identified the following three factors
that would define "incidental" damages:
(1) whether such damages are of a kind to which
class members would be automatically entitled;
(2) whether such damages can be computed by
"objective standards" and not standards
significantly reliant upon "the tangible,
subjective differences of each class member's
(3) whether such damages would require additional
hearings to determine.
The Allison standard has been adopted by the Fifth, Sixth,
Seventh and Eleventh Circuit Courts of Appeal. See Coleman v.
General Motors Acceptance Corp., 296 F.3d 443, 447-49 (6th Cir.
2002); Murray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001);
James v. City of Dallas, 254 F.3d 551, 571 (5th Cir. 2001);
Lemon v. International Union of Operating Engineers,
216 F.3d 577, 589 (7th Cir. 2000). It has also been adopted by several courts
within this Circuit. See Miller v. Hygrade Food Products Corp.,
198 F.R.D. 638, 641 (E.D.Pa. 2001) petition for appeal denied,
No. 01-8005 (3d Cir. March 21, 2001); Reap ...