Memorandum in Support of Defendants' Motion RE: Class Action Status

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IN THE. UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 
HAMMOND DIVISION 

BARBARA LEEK WESSON, 
BERNICE TERRY, 
EDDIE GRAY, 
AND ROSA KEETON, 

Plaintiffs 

VS. CAUSE NO. H 76-373 

METHODIST HOSPITAL OF 

GARY, INC., An Indiana 

Not-For-Profit 
Corporation and DAVID 
MATTHEWS, Secretary Dept. 
of Health, Education and 

Welfare of the United 
States of America, 

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Defendants 

MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION 
CONCERNING THE STATUS OF THIS SUIT AS A CLASS ACTION 
  

  

The defendant, Methodist Hospital of Gary, Inc., has 

moved the Court pursuant to Rule 23(c) and (d) of the Federal 

Rules of Civil Procedure for an order determining that this 

action should not be brought as a class action or in the 

alternative for an order requiring the representative plaintiffs 

to give written notice to all members of the class as defined 

by the Court. 

1. 

A. It is an elementary rule of class actions that the 

representative plaintiffs must have a cause of action against 

the defendants in order to claim that their claims are 

typical of the claims of all members of the class. La Mar v 

  

H & B Novelty & Loan Co., 489 F.2d 461 (9th Cir. 1973). The   

plaintiffs herein, while they may be black residents of 

Gary, do not allege that they have been denied any services 

by the defendant Methodist. The claim of the class is that 

the class has been denied some service by defendant Methodist. 

 



  

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While Methodist asserts that no member of the class has been 

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denied any services, it is clear that the nameqd Plaintiffs 
claims are not substantially identical to the alleged claims of the class they purport to represent. 

B. The requirement that the representative Plaintiffs 

presents something of a dilemma for the Court. The plaintiffs ask the Court to order the second loan guarantee to Methodist withheld by the defendant Matthews. While this will clearly have a punitive effect on Methodist, it will likewise be 
detrimental to many of the black citizens of Gary. The 

plaintiffs? Complaint Paragraph 10). This building is 
designed to attract physicians to the Gary location thereby 
improving the health care ang health care facilities for not 
only the black citizens but al} citizens of Gary. The 
reépresentatives' aims therefore appear to be at odds with 
the best interest of the members of the class they seek to 
protect. 

require notice to be given to all members of the defined 
class in a suit under Rule 23(b) (2). 

(d) Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the court may make appropriate orders:... (2) requiring, for the pro- tection of the members of the class or otherwise for the fair conduct of the action, that notice be given in 

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such manner as the court may direct to some or all 'the 
members of any step in the action..., or of the opportunity 
of members to signify whether they consider the representation 
fair and adequate, to intervene and present claims or 
defenses, or otherwise to come into the action.... 

Federal Rules of Civil Procedure 
Rule 23 (4d). 

Many courts have held that notice is required as a 

matter of due process in all class actions. Zachary v. 

Chase Manhattan Bank, N.A., 52 F.R.D. 532 (D.C.N.Y. 1971);   

U. 5S. ex rel. Walker v. Mancuse, 338 F. Supp. 311lL {(b.C.N.Y. 
  

1971) However other courts maintain that the decision to 

require notice is discretionary. United States v. Allegheny~- 
  

Ludlum Industries, Inc., 517 F.2d 826 (C.A.Ala. 1975): 
  

Bijeal v. Benson, 513 F.2d 965 (7th Cir. 1975). 
  

The defendant therefore appeals to the discretion of 

this Court. From an examination of the consequences of the 

Court's grant of the plaintiffs' prayer for relief it should 

be apparent to the Court that a denial of financial assistance 

to defendant Methodist will have a substantial adverse 

impact on the availability of adequate health care facilities 

for not only the black citizens of Gary, but also for all 

citizens, black and white, in the Northwest Indiana Region. 

Specifically, the failure to approve the new Loan Guarantee 

Program challenged in division two of the plaintiffs’ prayer 

for relief would prevent the construction of a health service 

building in Gary designed to attract physicians and other 

health care providers to the downtown Gary location. 

Thus, defendant asserts that plaintiffs should be 

required to notify each member of the class herein in writing 

 



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of the terms and consequences of the action filed on their 

  

behalf by the plaintiffs named herein. 

RESPECTFULLY SUBMITTED, 

     

HODGES, DAVIS, GRUENBERG, COMPTON & 
ATTORNEYS FOR DEFENDANT, METHODIST | 
OF GARY, INC. [Yr / a Ve ’ 

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EDWARD J. HUSSEY 

   
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Vv # : 

5525 Broadway 
Gary, Indiana 46410 
Ph. 981-2557 [||2c038a7a-1ce2-4407-bd80-e97a98e2d3ee||]