MEMORANDUM OPINION AND ORDER

SARA LIOI, District Judge.

Before the Court is plaintiffs' renewed motion for class certification (Doc. No. 1551), supported by a separately-filed brief (Doc. No. 158 ["Mot."]) and two separately-filed exhibits (Doc. No. 1592 and Doc. No. 1613). Defendant filed a memorandum in opposition (Doc. No. 162 ["Opp'n"]) and plaintiffs filed a reply (Doc. No. 164 ["Reply"]). Plaintiffs also submitted supplemental authority (Doc. No. 165)4, as did defendant (Doc. No. 169). For the reasons set forth herein, plaintiffs' renewed motion for class certification is denied.

Also before the Court is plaintiffs' motion for leave to serve a supplemental damages report, which belatedly seeks to add plaintiffs' expert's calculation of class-wide damages. (Doc. No. 170.) Defendant opposes this motion (Doc. No. 173), and plaintiffs filed a reply (Doc. No. 174). In view of the ruling herein denying class certification, supplementation of plaintiffs' expert report is not necessary; the original report already contains the expert's damages calculations for the named plaintiffs. Therefore, the motion for leave to supplement (Doc. No. 170) is denied.

I. BACKGROUND

Plaintiffs initiated this putative class action on September 30, 2009. (Doc. No. 1.) There are five named plaintiffs — four individuals (Regis F. Lutz, Marion L. Lutz, Leonard W. Yochman, and Joseph L. Yochman) and one limited liability company (C.Y.V., LLC). Each plaintiff is a lessor of interests in natural gas estates in tracts of land — the Lutzes' land and C.Y.V.'s land is in Trumbull County and the Yochmans' land is in Mahoning County. The complaint generally alleges that all of the plaintiffs have been underpaid on their natural gas royalties by Columbia Natural Resources, Inc. (renamed Chesapeake Appalachia, L.L.C. when it was acquired by Chesapeake Energy Corporation in 2005).

On June 10, 2018, this Court granted defendant's motion to dismiss, finding the contract claim time-barred and finding no independent basis for the remaining tort claims. (Doc. Nos. 68, 69.) On plaintiffs' appeal, the Sixth Circuit held that each royalty underpayment triggered a new accrual period, and concluded that the contract claim in Count I of the complaint should survive as to any claims for underpayment of royalties that occurred within four (4) years of the filing of the complaint, that is, back as far as September 30, 2005. Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 470 (6th Cir. 2013). The court of appeals also held that plaintiffs may be entitled to equitable tolling on the basis of fraudulent concealment, but that this was a matter for summary judgment or trial. Id. at 476. The court affirmed this Court's dismissal in all other respects. Id.

On remand, the parties filed cross-motions for summary judgment, and plaintiffs moved for class certification. On October 30, 2014, on the parties' joint motion, class certification briefing was suspended and the motion was denied without prejudice to renewal, pending the outcome of the dispositive motions. On April 1, 2015, having consulted with counsel, the Court certified a question of Ohio law to the Ohio Supreme Court (see Doc. No. 130), which, on June 3, 2015, accepted certification. But on November 2, 2016, Ohio's high court declined to answer the certified question. (See Doc. No. 135.)

On August 18, 2017, defendant renewed its motion for partial summary judgment. After full briefing, on October 25, 2017, the Court entered its ruling as to the four issues defendant's motion had raised:

(Doc. No. 142 ["MOO"] at 3998.) The Court linked issues (1) and (2), holding that, for "at the well" leases, "the location for valuing the gas for purposes of computing the royalty was `at the well'" (Id. at 4005 (emphasis in original).) The Court "decid[ed] only the legal question raised by these [first] two issues, not any factual question . . . of whether the dollar amounts paid by defendant at given time were correct under the legal interpretation that [was] determined [therein]." (Id. at 3998.)5

The third issue — "line loss" — was effectively mooted as to the "at the well" leases, and, for the remaining leases, the Court determined that plaintiffs' "three-sentence argument" was insufficient and that "[p]laintiffs [had] provided no evidence to support the allegations of line loss in their complaint . . . [and] made no effort to refute defendant's legal arguments, which the Court [found] persuasive." (Id. at 4006.) Summary judgment was granted on the line loss claim as to all leases.

Finally, as to the fourth issue, the Court determined that plaintiffs had "failed to establish that the doctrine of fraudulent concealment entitle[d] them to tolling of the four-year statute of limitations." (Id. at 4011.)

As a result of the summary judgment ruling, the sole remaining claim is the breach of contract claim in Count I of the complaint and, in particular, assertions that defendant both (1) paid royalties under all relevant leases based on an incorrect unit price and, (2) made impermissible cost deductions on royalties paid under leases that did not contain "at the well" language.

On February 18, 2018, plaintiffs filed this instant renewed motion for class certification under Fed. R. Civ. P. 23(a) and 23(b)(3). The motion is now fully briefed and ripe for determination.

II. DISCUSSION

A. Legal Standard

The sections of Rule 23 (Class Actions) relied upon by plaintiffs provide as follows:

Class actions are "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348, 131 S.Ct. 2541, 180 L. Ed. 2d 374 (2011) (quotation marks and citation omitted). "[A] district court may not certify any class without `rigorous analysis' of the requirements of Rule 23[,] [and] [n]o class that fails to satisfy all four of the prerequisites of Rule 23(a) may be certified[.]" Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998) (citation omitted). Further, "[c]lass certification is only appropriate when the proposed class is limited by definite and objective criteria." Zehentbauer Family Land LP v. Chesapeake Exploration, L.L.C., No. 4:15CV2449, 2018 WL 3496089, at *2 (N.D. Ohio July 20, 2018) (citation omitted). The burden is on the moving party to prove that the requirements for class certification have been met. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996) (citations omitted).

"In reviewing a motion for class certification, a court must first identify the purported `class' and determine that the named plaintiffs are members of the class." Henceroth v. Chesapeake Exploration, L.L.C., No. 4:15CV2591, 2018 WL 1453547, at *2 (N.D. Ohio March 23, 2018).

B. Analysis

Plaintiffs assert that there are 76 class leases, 43 of which do not have "at the well" royalty language. "As to [the 43] leases, [p]laintiffs seek class certification on both the claim as to incorrect price and the claim as to wrongful cost deductions." (Mot. at 4301.) They seek to certify the following two sub-classes:

(Reply at 4369, modifying Mot. at 4305.)6 In addition, plaintiffs seek to include in Sub-Class 1, the 32 "at the well" leases identified in their motion.

Defendant argues that plaintiffs cannot establish commonality, typicality, or adequacy of their representatives under Rule 23(a),7 nor can they establish predominance, manageability, and/or superiority under Rule 23(b)(3). Each failure, by itself, would be fatal to class certification.

1. Commonality and Typicality (Rule 23(a)(2) & (3)); Predominance (Rule 23(b)(3))

Commonality requires that there be "questions of law or fact common to the class." Rule 23(a)(2). Plaintiff must "demonstrate that the class members have suffered the same injury[.]" Dukes, 564 U.S. at 350 (quotation marks and citation omitted). To demonstrate commonality, plaintiffs must be able to show that "`[t]heir claims . . . depend upon a common contention . . . of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. Not every common question will suffice. "[A]t a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality. What [the court is] looking for is a common issue the resolution of which will advance the litigation." Sprague, 133 F.3d at 397.

The typicality requirement "often merges with the consideration of commonality because both are `guideposts' in determining if a class action is economical and whether the claims are interrelated." Zehentbauer Family Land LP, 2018 WL 3496089, at *4 (citations omitted). "Typicality will be found when the representative has aligned interests with the class members, and pursuing the personal claims will also advance the class members' interests." Henceroth, 2018 WL 1453547, at *5 (citation omitted).

"To meet the predominance requirement, a plaintiff must establish that issues subject to generalized proof and applicable to the class as a whole predominate over those issues that are subject to only individualized proof." Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 544 (6th Cir. 2012) (quotes and citations omitted).

Plaintiffs argue that "[d]efendant was obligated by the terms of the leases to pay each class member a royalty equal to 1/8thof the market value of the gas at the time it was produced." (Mot. at 4306.) They generalize that defendant used an improper method of calculation that was uniform across the putative class. They claim that the "common factual and legal questions[ ] . . . include whether the use of the fixed price complied with [d]efendant's royalty obligations and whether costs can be deducted from royalties under leases that do not have `at the well' royalty language." (Id. at 4307.)

Defendant argues in opposition that the Court should not ignore that "there are at least ten different lease types that remain at issue[.]" (Opp'n at 4327, citing Mot. at 4302-04.) "Whether Chesapeake breached any given putative class member's lease depends, of course, on the language of the lease." (Id. at 4328, citing Harris v. Ohio Oil Co., 48 N.E. 502, 506 (Ohio 1987) ("[Oil and gas] leases are contracts, and the terms of the contract with the law applicable to such terms must govern the rights and remedies of the parties.").) See also Lutz v. Chesapeake Appalachia, L.L.C., 71 N.E.2d 1010, 1013 (Ohio 2016) ("the rights and remedies of the parties are controlled by the specific language of their lease agreement"). Defendant asserts that the legal questions identified by plaintiffs "require a lease-by-lease inquiry — which destroys commonality[.]" (Opp'n at 4328 (citations omitted).)

Defendant also refutes plaintiffs' assertion that it employed a common methodology, claiming that "`[its] methodology for calculating royalties depends on a host of different factors that are unique to the geography of the wells, such as where the wells are located, what gathering system they are connected to, the governing lease language, and the arrangements that Chesapeake or its predecessors have or had for sales at or near the wellhead.'" (Id. at 4329-30, quoting Doc. No. 162-38 at 4352.)

Plaintiffs declare that variations in the leases are no barrier to class certification. (Reply at 4362-63, citing Mot. at 4308 n.2 (collecting cases where classes were certified despite allegedly differing royalty clauses).)9 They also claim that "[t]he Tawney fact findings establish" that the defendant calculated royalties using the fixed prices in the Mahonia contracts and took cost deductions for royalty owners in all the Appalachian states, including Ohio. (Reply at 4361.) Plaintiffs point to specific fact-findings from the ruling in Tawney (see id. at 4367-68), but they offer no legal authority for their assertion that such fact findings must be controlling here. That position seems to exceed the scope of judicial notice. See, e.g. Coach, Inc. v. Master of Handbags, No. CV 11-0041 SJO (FMOx), 2011 WL 13220295, at *6 (C.D. Cal. Sept. 20, 2011) (rejecting attempt to leverage the victory plaintiffs received in one case into findings of fact for another) (quoting Wyatt v. Terhune, 315 F.3d 1108, 1114 (9th Cir. 2003) ("[T]aking judicial notice of findings of fact from another case exceeds the limits of Rule 201.")); see also Marshall v. Bramer, 828 F.2d 355, 358 (6th Cir. 1987) (noting that "it is generally not appropriate to judicially notice findings of fact made in other cases").

The Court concludes that plaintiffs have failed to establish the requisite commonality, typicality, and/or predominance for class certification. Aside from failing to account for the notable variations in the language of the leases, plaintiffs also fail to refute defendant's interrogatory answers regarding the variation in the method of calculating royalties. Further, although plaintiffs argue that defendant used the fixed prices in the Mahonia contracts, there is no dispute that these prices expired in February 2006, and plaintiffs here cannot claim damages arising before September 2005. Thus, the Mahonia contracts that were central to the class certification in Tawney are relevant to only a small fraction of the months at issue here. Plaintiffs have presented no evidence that any other "fixed price" was used to calculate their royalties.

Generally speaking, although plaintiffs claim that they were all underpaid on their royalties, this is the type of "abstract level of generalization" that has been criticized by the Sixth Circuit as an insufficient basis to argue that there is a common question at issue for the entire putative class. See Sprague, 133 F.3d at 397.

2. Adequacy (Rule 23(a)(4))

The inquiry into whether class representatives will fairly and adequately protect the interests of the class has two prongs. First, the named plaintiffs must "have common interests with the unnamed members of the class," and, second, "it must appear that the representatives will vigorously prosecute the interest of the class through qualified counsel." In re Am. Med. Sys., Inc., 75 F.3d at 1083 (citation omitted).

Here, plaintiffs state that there are five named plaintiffs — four individuals and a limited liability company. Two of the four individuals (Regis and Marion Lutz) — whose leases are of the "at the well" variety — are actually joint lessors, both of whom, by plaintiffs' admission, are no longer capable of participating as class representatives due to their ages. (Mot. at 4309.) The other two individuals (Leonard Yochman and Joseph Yochman) are father and son, and again plaintiffs admit that Leonard Yochman's age prohibits him from participating as a party representative. Id. The final named plaintiff is a limited liability company. It is unclear how a corporate entity can qualify as a suitable representative for the putative class. But defendant acknowledges that Joseph Yochman operates C.Y.V. and is its corporate representative (Opp'n at 4333 n.7), and the Court notes that Joseph Yochman was deposed as the Rule 30(b)(6) representative of C.Y.V., LLC.10

Defendant points out that C.Y.V. is not a suitable class representative because its two leases each have different royalty language (one valuing the royalty payment "at the well" and the other requiring payment of royalties on oil and gas "produced and saved" from the land, "free of cost[.]" (Opp'n at 4333, citation omitted.)11 In addition, one of the sub-classes plaintiffs seek to certify would include lessors who had post-production costs deducted from their royalties. But, according to defendant, C.Y.V. is not among that group. (Id.)

Defendant has not specifically challenged Joseph Yochman as a class representative,12 but the Court concludes that plaintiffs' singular assertion that Yochman "is in good health, has a good working knowledge of the case, understands his responsibilities as a class representative and will continue to serve competently as a class representative[,]" (Mot. at 4309), is little more than unsupported conclusory statements. The adequacy of a class representative has to be based on more than good health and good will.

Defendant also challenges the adequacy of class counsel, asserting that they have not demonstrated the requisite "standard of practice which exceeds the `usual quality of practice' before a federal court." (Opp'n at 4334, quoting Kurczi v. Eli Lilly & Co., 160 F.R.D. 667, 679 (N.D. Ohio 1995) (emphasis added by defendant) (further citation omitted).) In particular, defendant challenges counsel's pre-suit investigation as it relates to the adequacy of class representatives, noting that the time between counsel's solicitation letter to potential plaintiffs and the filing of the complaint was only three weeks. (Opp'n at 4334.) Defendant also argues that counsel's "fail[ure] to conduct a single deposition of anyone despite having ample opportunity to do so[]" is further proof of their inadequacy. (Id. at 4334-35.)

The Court is in no position to comment on the professional competency of class counsel, but it can comment on the adequacy of counsel's representation as evidenced by the record in this case. The Court would be hard-pressed to conclude other than that class counsel's entire argument for class certification is based on the fact that classes have been certified in other cases. In addition, it appears to the Court that class counsel are relying almost entirely on successes in some other cases, and assuming that those successes will require a certain outcome here. They even go so far as to suggest that this Court should simply accept as true findings of fact made by another court, without offering any legal authority for doing so and without showing that this case bears any relationship to the other case from a factual standpoint.13 From the outset of this case, whenever a substantive motion has been filed and briefed, plaintiffs' position has been very poorly articulated and, at times, has been a "moving target." Perhaps this may be the result of a certain complacency regarding the need to separately establish plaintiffs' legal theories and prove their facts before this Court, but the Court may only decide this case based upon the information that is properly before it.

For these reasons, the Court concludes that, at the very least, the class representatives — now consisting of C.Y.V., LLC (apparently represented by Joseph Yochman) and Joseph Yochman, individually — are inadequate to represent either of the two classes proposed by the plaintiffs. That fact alone, even if counsel is adequate, would be reason under the case law to deny certification.

3. Manageability and Superiority (Rule 23(b)(3))

Finally, defendant argues that, "[g]iven the many differences [already] outlined above, as well as the fact that any classwide recovery is less than $21,000, it is clear that a class action here is neither manageable nor superior." (Opp'n at 4336; Doc. No. 162-2, Declaration of Ragan Naresh ¶ 7.) Defendant claims that "where, as here, a case would devolve into many different mini-trials, class certification satisfies neither `manageability' or `superiority.'" (Id.) In addition, "[w]hen the potential recovery in a class action is low, courts have found that the superiority requirement is not met." (Opp'n at 4337, citing Gallego v. Northland Grp. Inc., 814 F.3d 123, 129-30 (2d Cir. 2016).)

Plaintiffs argue in reply that defendant's premise that there will need to be mini-trials is incorrect, as evidenced by the Tawney case where there were 35 different royalty clauses, but just one issue: whether it was proper to base royalties on the Mahonia sale price. (Reply at 4373.)

As already pointed out, the Mahonia contract price was the key issue in certifying the class in Tawney, whereas here, due to the time parameters, that fixed contract price has more limited impact from a class certification standpoint. Defendant has the better view on manageability and superiority.

III. CONCLUSION

For the reasons set forth herein, plaintiffs' renewed motion for class certification (Doc. No. 155) is denied.

IT IS SO ORDERED.