Memorandum in Opposition to Defendants Motion Pursuant to Rule 23

     [||5eab5bb4-14aa-47a9-8367-8647ccabb45d||] 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, 76-373 

METHODIST HOSPITAL OF GARY, INC., 

An Indiana Not-For-Profit 

Corporation, and JOSEPH CALIFANO, 

United States Secretary of Health, 
Education and Welfare. : 

Defendants. 
  

  

  

MEMORANDUM IN OPPOSITION TO DEFENDANTS MO- 
TION PURSUANT TO RULE 23 OF THE 
FEDERAL RULES OF CIVIL: PROCEDURE 

  

JACK GREENBERG 

BETH J. LIEF 

10 Columbus Circle 

New York, New York 10019 

JULIAN ALLEN 

2009 Broadway 

Gary, Indiana 

MARILYN G. ROSE 
CHRISTINE B. HICKMAN 

1751 N Street, N.W, 

Washington, D.C. 20036 

Attorneys for Plaintiffs 

 



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, : 

- NS 

L
L
 CAUSE NO, #76-373 

METHODIST HOSPITAL OF GARY, INC,, 

An Indiana Not-For-Profit 

Corporation, and JOSEPH CALIFANO, 

United States Secretary of Health, 
Education and Welfare, 

Defendants. 

MEMORANDUM IN OPPOSITION TO 
  

DEFENDANTS MOTION PURSUANT TO 
  

RULE 23 OF THE FEDERAL 
  

RULES OF CIVIL PROCEDURE 
  

This memorandum is submitted in opposition to the motion of 

defendant, Methodist Hospital of Gary, Inc. pursuant to Rules 23(c) and 

23(d) of the Federal Rules of Civil Procedure for an order determining 

that this action 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. 

I 

IT IS PREMATURE TO MAKE 

A CLASS ACTION DETERMINATION 
AT THE TIME 
  

Rule 23(c) (1) of the Federal Rules of Civil Procedure states: 

"As soon as practicable after the commencement of 
an action brought as a class action, the court 

shall determine by order whether it is to be so 

 



  

maintained. An order under this subdivision may 
be conditional, and may be altered or amended be- 

fore the decision on the merits." 

It is hardly practicable to make a class action determination at 

this time given the present posture of this case. Defendant Methodist 

Hospital of Gary, Inc. has not yet filed an answer and defendant Secre- 

tary of HEW has not even made an appearance. Moreover, a motion to 

dismiss by defendant Methodist Hospital is presently pending before 

the court on the grounds, inter alia, that the court lacks jurisdiction 
  

over the complaint. It is proper for a court to determine first whether 

it has jurisdiction prior to making a ruling on the propriety of the 

suit proceeding as a class action. City of Inglewood ve. City of Los 
  

Angeles, 451 F, 24° 948, 951 (9th Cir. 1972); 

The requirement that a class action determination be made "as soon 

as practicable" "leaves much room for descretion." Id. "[It] will ob- 

viously vary from case to case". Frankel: Some Preliminary Observa- 

tions Concerning Civil Rule 23, 43 F.R.D. 39, 41-42 (D.C. 1968). 

A Rule 23(b) (3) action must be certified early in the litigation to 

assure timely notice to class members and other preliminary determina- 

tions. In contrast, an action maintained under Rule 23(b) (2) requires 

only a reference to the class in the judgement. Accordingly, the 

certification issue in a 23(b) (2) action may be resolved concurrently 

with the merits without undermining the viability of the class action. 

Jimenez v. Weinberger, 523 F, 2d 689, 697-702 (7th Cir. 1975) (now, 
  

Mr. Justice Stevens) (and discussion and authorities cited therein) . 

The wise use of discretion dictates that a class action ruling be held 

in abeyance until issue is joined and until the court determines the 

 



jurisdictional issues raised in the defendant's motion to 

  

dismiss. 

II 

IT IS IMPROPER TO RE- 

QUIRE NOTICE TO MEMBERS 
OF THE CLASS 
  

It is important to stress that this action is prose- 

cuted as a class action under Rule 23(b) (2) of the Federal 

Rules of Civil Procedure and that the only relief sought is 

prospective injunctive relief, In cases arising under 

23(b) (2), putative class members cannot "opt out" of, the 

class, and the benefits of notice are dubious. To require 

notice at this time would, in addition, be unduly burden- 

some to the assertion by plaintiffs of their civil rights. 

A prospective injunctive such as plaintiffs seek can be 

awarded in the absence of a class determination. In such 

a situation, the need or wisdom for mandating notice is 

totally absent, C,f.,United States Allegheny-Ludlum In- 
  

dustries, Inc,, 517 F.2d 826 (5th Cir. 1975). 
  

Il 

CONCLUS ION 

For the reasons set forth above, any determination as 

to the propriety of this action proceeding as a class 

action should be held in abeyance pending the appearance 

of all parties, the filing of responsive pleadings, and 

the determination of the motion to dismiss. Notice should 

not be required on the grounds that it is unnecessary and 

unduly burdensome. The motion of defendant Methodist 

 



  

Hospital of Gary, Inc. pursuant to Rule 23 should be denied 

in all respects. 

Respectfully submitted, 

A , 
No ou A ( if, 0 7 
UA < jp AN § a \ A en A a 

JACK GREENBERG 
BETH J. LIEF 

10 Columbus Circle 

New York, New York 10019 

  

JULIAN ALLEN 

2009 Broadway 
Gary, Indiana 

MARILYN G. ROSE 

CHRISTINE HICKMAN 

1751 N Street, NW. 
Washington, D.C. 20036 

Attorneys for Plaintiffs 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that a copy of the foregoing MEMORANDUM 

IN OPPOSITION TO DEFENDANTS MOTION PURSUANT TO RULE 23 OF THE 

FEDERAL RULES OF CIVIL PROCEDURE was served by United States 

Mail, postage prepaid, on the 5th day of March, 1977, on 

counsel for defendants as follows: 

HODGES, DAVIS, GRUENBERG, COMPTON 

& SAYERS, BRUCE E., SAYERS, ESQ. 

5525 Broadway 
Gary, India 46401 

ATTORNEYS FOR DEFENDANT METHODIST 
HOSPITAL OF GARY, INC, 

} “ al \ / { 

ISAC Ve (IAA 

BETH J. LIEF b 
  

Attorney For Plaintiffs [||5eab5bb4-14aa-47a9-8367-8647ccabb45d||]