VICKI MILES-LaGRANGE, District Judge.
Before the Court is Plaintiffs' Motion for Class Certification and Brief in Support, filed February 23, 2015. On March 27, 2015, defendants Freeport-McMoran, Inc., f/k/a Freeport-McMoran Copper & Gold Inc., Freeport Minerals Corporation f/k/a Freeport-McMoran Corporation f/k/a Phelps Dodge Corporation, Cyrus Amax Minerals Company, and Blackwell Zinc Company, Inc. (collectively "Defendants") responded. On June 25, 2015, plaintiffs replied, and on July 24, 2015, Defendants filed their surreply. Also before the Court are plaintiffs' Motion to Exclude Certain Opinions of Dr. Barbara Beck and Defendants' Motions to Exclude Plaintiffs' Expert Mark Berkman and Brief in Support, to Exclude Opinions of Plaintiffs' Expert J. Berton Fisher and Brief in Support, and to Exclude Opinions of Plaintiffs' Expert Richard DeGrandchamp and Brief in Support, filed June 26, 2015. Finally, before the Court are Defendants' Motion to Strike Rebuttal Reports of Plaintiffs' Experts and Brief in Support, filed July 10, 2015, and Defendants' Motion to Strike Second Rebuttal Report of Plaintiffs' Expert Richard DeGrandchamp, filed July 29, 2015. All of the above motions of plaintiffs and Defendants have been fully briefed. Based on the parties' submissions, the Court makes its determination.
This action stems from plaintiffs' allegations of continuous and ongoing pollution and contamination in and around the City of Blackwell, Kay County, Oklahoma.
Fir. Am. Compl. ¶ 122.
Plaintiffs filed this instant action seeking actual and punitive damages and injunctive relief against Defendants for (1) trespass; (2) private nuisance; (3) public nuisance; (4) negligence; (5) negligence per se; and (6) unjust enrichment. Plaintiffs now move this Court to certify this matter as a class action, pursuant to Federal Rules of Civil Procedure 23(b)(2)&(3).
Pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), plaintiffs have moved to exclude certain opinions of Defendants' expert Barbara Beck, and Defendants have moved to exclude the opinions of plaintiffs' experts Mark P. Berkman, J. Berton Fisher, and Richard DeGrandchamp. Further, Defendants have moved to strike the rebuttal reports of plaintiffs' experts and the second rebuttal report of plaintiffs' expert Richard DeGrandchamp.
Plaintiffs not only seek monetary damages but injunctive relief in the form of remediation and, therefore, move this Court for an order certifying classes in this action under Rules 23(b)(2)&(3). "The class action is 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, 131 S.Ct. 2541, 2550 (2011) (internal quotations and citation omitted). "To come within the exception, a party seeking to maintain a class action must affirmatively demonstrate his compliance with Rule 23." Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013) (internal quotations and citation omitted). Further, although the plaintiff ultimately bears the burden of showing that the Rule 23 requirements are met, this Court must engage in its own "rigorous analysis" to ensure that certification is appropriate. See Shook v. El Paso Cty., 386 F.3d 963, 968 (10th Cir. 2004).
Federal Rule of Civil Procedure 23 provides, in pertinent part:
Fed. R. Civ. P. 23(a),(b)(2)&(3).
Defendants contend that plaintiffs have failed to satisfy Rule 23(a) prerequisites and, further, that class certification under Rule 23(b)(2) is inappropriate and plaintiffs have failed to satisfy the requirements under Rule 23(b)(3). Having carefully reviewed the parties' submissions and applicable case law, the Court finds that plaintiffs have failed to satisfy the prerequisites of Rule 23(a). Specifically, the Court finds that plaintiffs have not established that the class is so numerous as to make joinder impracticable, pursuant to Rule 23(a)(1). See Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006) (In instances of a numerousity analysis, the Tenth Circuit has stated that there is "no set formula to determine if the class is so numerous" and "grant[s] wide latitude to the district court in making th[e] determination.").
Plaintiffs assert that joinder is impracticable in this matter based upon the size of the class and the geographic dispersion of the potential class members. The Court finds that joinder is not impracticable. Specifically, the potential class in this matter consists of property owners of 479 parcels in Blackwell, Oklahoma who opted out of the settlement class in the Coffey, et al. v. Freeport-McMoran Copper & Gold Inc. litigation, in the District Court of Kay County, State of Oklahoma. Further, over 100 potential class members have already been joined to this action. Outside of stating that the property owners "could be widely dispersed," plaintiffs have presented no evidence showing geographic dispersion among the class members, and, in fact, plaintiffs' own expert, Dr. J. Berton Fisher ("Fisher"), retained to provide testimony on the class boundary, stated that "[t]he identities of the land parcels within the Briggs Class Boundary, their physical addresses and their ownership [are] easily ascertained."
Further, even assuming plaintiffs could have been able to satisfy the prerequisites of Rule 23(a), the Court finds that, pursuant to its rulings in McCormick v. Halliburton Energy Services, Inc., Case No. CIV-11-1272-M, class certification under Rule 23(b)(2) & (3) would have been inappropriate. Specifically, as to plaintiffs' assertion that a class should be certified under Rule 23(b)(2) for injunctive relief requiring remediation of the potential class members' soil, the Court finds that the Environmental Protection Agency and the Oklahoma Department of Environmental Quality has had continuing jurisdiction over the remediation actions stemming from the pollution emanating from the Blackwell Smelter since 1994, and, therefore, the Court would have declined to certify a class under Rule 23(b)(2) as it would have interfered with the jurisdiction of the regulatory agencies already involved in remediation actions in Blackwell. See McCormick, 2012 WL 1119493, at *3 (W.D. Okla. April 3, 2012) ("[T]he Court finds that it should abstain from exercising jurisdiction under the RCRA in order to permit the ODEQ to continue its investigation, supervision, and remediation of the Site without the prospect of conflicting directive from this Court as to how the contamination should be remedied.") Additionally, as to class certification under Rule 23(b)(3), the Court determined in McCormick that the claims of nuisance, negligence, and trespass are all highly individualized claims requiring individualized evidence barring a class action. See id. 2015 WL 918767 (W.D. Okla. March 3, 2015).
Accordingly, for the reasons set forth above, the Court DENIES Plaintiffs' Motion for Class Certification and Brief in Support [docket no. 90] and DENIES plaintiffs' Motion to Exclude Certain Opinions of Dr. Barbara Beck [docket no. 107]; Defendants' Motions to Exclude Plaintiffs' Expert Mark Berkman and Brief in Support, to Exclude Opinions of Plaintiffs' Expert J. Berton Fisher and Brief in Support, and to Exclude Opinions of Plaintiffs' Expert Richard DeGrandchamp and Brief in Support [docket nos. 108, 109, & 110]; Defendants' Motion to Strike Rebuttal Reports of Plaintiffs' Experts and Brief in Support [docket no. 112] and Defendants' Motion to Strike Second Rebuttal Report of Plaintiffs' Expert Richard DeGrandchamp [docket no. 122] as MOOT.
Fir. Am. Compl. ¶116.