Duane Morris Class Action Review - 2023 - Report - Page 350
certification where it found that the plaintiffs had failed to satisfy the numerosity
requirement pursuant to Ohio Rule of Civil Procedure 23 (Civ. R. 23). The plaintiffs were
a group of owners, renters, and occupants of residential property located within a 500foot radius of two large LED billboards owned by Norton Outdoor Advertising, Inc.
(Norton) and located on property owned by LAL Properties, LLC (LLC). Id. at *2. The
plaintiffs alleged that the color-changing billboards - which changed light every eight
seconds, and resulted in frequent “flashes”- were a nuisance to the surrounding
neighbors. Id. The plaintiffs filed a class action seeking redress for nuisance, trespass
and negligence, against Norton, LAL, Leesman Lighting, LLC (a tenant of LAL
properties), the Village of St. Bernard (St. Bernard), and Flora Byrnes (a nearby
property owner). Id. *4. The plaintiffs further alleged procedural and substantive due
process violations under the United States and Ohio Constitutions against St. Bernard.
Id. Following removal of the matter, the plaintiffs dismissed St. Bernard, along with their
trespass claims, before the case was remanded back to state court. Id. at *5. The trial
court then denied the plaintiffs’ motion for class certification. Reviewing for an abuse of
discretion, the Ohio court of appeals affirmed the trial court’s denial of class certification
where it determined that the plaintiffs had failed to demonstrate numerosity as required
under Civ. R. 23(A)(1). Ohio state courts have found that classes with 40 or more
members likely satisfies numerosity, while less than 25 does not. Id. at *11. In this case,
the proposed class included 17 “residential structures” encompassing 23 residences.
The plaintiffs argued that assuming each residence encompassed at least two people,
the proposed class had 46 members, sufficient to satisfy numerosity. Id. at *12. In
support of their assumption, the plaintiffs relied on a 2010 U.S. Census that found the
average household size in St. Bernard to be 2.2 people. Id. at *13. The trial court
refused to speculate as to the number of people per household, and determined that,
given the class comprised only 23 residences, it would not be difficult or inconvenient to
identify and join all members of the proposed class. Id. The trial court further concluded
that the plaintiffs had failed to demonstrate that joinder was impracticable, particularly
where the number of proposed class members was already low. Id. at ¶15. Having
failed to satisfy one of the seven requirements for class certification under Civ. R. 23,
the trial court denied class certification. The court of appeals agreed with the trial court’s
reasoning and affirmed.
Pennsylvania
Plaintiffs in Doe, et al. v. Franklin County, 272 A.3d 1022 (Pa. Commw. 2022), were
licensed to carry firearms by the Franklin County Sheriff. The plaintiffs brought claims
against Franklin County, the Sheriff’s Office, and Sheriff Dane Anthony (the County) for
disclosing the status of their licenses to the public in violation of Section 6111(i) of the
state Firearms Act, 18 Pa. C.S. § 6111(i), by mailing postcards notifying licensees of the
approval, renewal, denial, or revocation of their firearm licenses. Id. at 1026. The
plaintiffs alleged that the identifying information on the postcard (e.g., the licensee’s
name, address, and license application status) constituted a “public disclosure,” of
confidential information in violation of 18 Pa. C.S. §6111(i). Id. The County filed a
preliminary objection in the nature of a demurrer, which the trial court sustained on the
basis that the complaint failed to plead facts sufficient to show that the County had
publicly disclosed confidential information in violation of the statute. Id. at 1027. The
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Duane Morris Class Action Review – 2023
