Correspondence from Edmisten to Leonard; Defendants' Response to Pugh Plaintiffs' Motion for Class Certification; Memorandum in Support of Response to Pugh Plaintiffs' Motion for Class Certification

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RtJF.rS l.-. EDMISTEN
A''I 3F\:i GENERAL

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June 24,

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629

1982

The Honorabl-e J. Rich Leonard, Clerk
United States District Court
Eastern District of North Carolina
Federal Building
Raleigh, North Carolina 27611

Re: RALPH GINGLES v. EDMISTEN, Civil No. 82-803-CfV-5
PUGH v. IiUNT, Civil No. 81-1066-CIV-5

Dear IvIr. Leonard:

Due to certain clerical- errors discovered in Defendantsl
Memorandum rn support of Response to Pugh plaintiffs' Motion
for Class Certification, Defendants' submit herewith, for
filing, a corrected version of that Memorandum. Enclosed are
the original and three copies. Please mark one copy "Filed"
and return the same to me in the enclosed, stamped envelope.

My apologies for any inconvenience to you.
your usual- cooperation.

Thank you for

Very truly yours,

RUFUS L. EDMISTEN
ATTORNEY GENERAL

tuh
WaIIace,Jame

Depu y Attorney
tf Legal Aff

JWJR: ew

Enclosures

CC: A11 Attorneys



IN THE UNITED STATES DISTRICT COURT
F'OR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

RALPH GINGLES, et aI.,
Plaintiffs,

v.

RUFUS EDMISTEN, €t 31.,
Defendants

ALAN V. PUGH, €t dl.,
Plaintiffs,

)

)

)

)
)

)

, etc., et dI., )

Defendants. )

No.81-803-CIV-5

No. 81-I066-CIV-5v.

JAMES B. HUNT, JR.

DEFENDANTS' RESPONSE TO PUGH PLAINTIFFS'

NOW COI{E the Defendants, by and through their counsel of

record, responding, bY way of objection, to the Pugh Plaintiffs'

I,IOTION FOR DETERMINATION THAT ACTION MAY BE I"AINTAINED AS A

CLASS ACTION on the grounds set forth in the attached memorandum.

Defendants request that the motion be denied and the Pugh

Plaintiffs be allowed to proceed individually.

This the A"t daY of June , L982 -

RUFUS L. EDMTSTEN
Attorney General

Raleigh, North Carolina 27602
Telephone: (919) 733-3377

Norma Harrell
Tiare Smiley
Assistant AttorneYs General

>dr"k@
Gp/sociate Attorne

Jerris Leonard
Kathleen Heenan
Jerris Leonard & Associates, P.C.
900 ITth Street, N. w.
suire 1020
Washington, D. C. 20006
Telephone: (202) 872-1095

Attorneys for Defendants

Jdmd$ WaIIace, Jt.
,depufv Attorney @neral

r Legal Aff/.Lts
torney Gener6l's office

N. C. Department of Justice
Post Office Box 629



IN THE UNTTED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

RALPH GINGLES, et

v.

RUFUS EDMISTEN, et

dl. ,
Plainti ffs ,

d1. ,
Defendants

In order for a person

in a class action suit, the

tion requirements under the

Rules of Civil Procedure.

SYSTEM, INC. V. RODRIGUEZ,

IqE},IORANDUM TN
SUPPORT OF RESPONSE
TO PUGH PLAINTIFF'S I

I.{OTTON-FOR CLASS
CERTIFICATION

to be qualified to represent a class

person must meet various certifica-

strictures of Rule 23 of the Federal

See, e.9., EAST TEXAS MOTOR FREIGHT

431 U.S. 395, 97 S.Ct. 1891 , 52 L.Ed.

**:t

ALAN V. PUGH, €t al
Plaintiffs,

v.

JAMES B. HUNT, JR., etc., €t al.,
Defendants.

I. STATEMENT OF THE FACTS

Plaintiff Pugh is a Caucasian male employed as an attorney

in Asheboro, Randolph County, North Carolina. Plaintiff Griffin

is a Caucasian male employed as an attorney in Clinton, Sampson 
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County, North Carolina. Plaintiff lvlcCullough is a black male i

employed as a newspaper publisher in Statesville, Iredell County;

North Carolina. Plaintiff Eaglin is a black male employed as an,

attorneyinFayettevi11e,Cumber1andCounty,NorthCaroIina

Plaintiff Trotter is a Caucasian female housewife residing in 
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Robbins, iuloore County, North Carolina. Plaintif fs, through 
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their motion, seek to represent the entire class of black 
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citi-zens of North Carolina in the above titled action and further

the entire class of all voting citizens of North Carolina with

regard to allegations in the complaint not directly involved in

the discrimination against black citizens.

I I . ARGUI,IENTS

A. PLAINTIFF HAS NOT CARRIED THE BURDEN OF COMPLIANCE WITH



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2d 453 (L977)i NANCE v. UNrON CARBIDE CORP., 540 F.2d 718

(4th Cir. 1976); DANNER v. PHILLIPS PETROLEUI,I CO., 447 F.2d 159

(4th Cir, L97L); Local Rule 77 (b) (5). The affj-rmative burden

of demonstrating facts sufficient to satisfy the requirements of,

Ru1e231ieswiththep1aintiffs,See,a.9.,DoCToRv.SEABoARD

COAST LINE R.R., 540 F.2d 699, 706 (4th Cir. 1976)i POINDEXTER
i

v. TEUBERT, 462 F.2d 1096, 1097 (4th Cir. L972). Hence, neitheri

a simple recitation of the mandates of Rule 23 nor mere specula-

tion that Rule 23 requisites are met is sufficient. See, e.g.,

DOCTOR v. SEABOARD COAST LINE R.R., supra; POINDEXTER v. TEUBER!,

suprai CARACTER v. MORGAN, 491 F.2d 458, 459 (4th Cir. 1973).

Examined below are the various requirements of Rule 23 and the

case law apptication of them. As will be shown, the plaintiffs

fall far short of meeting several requirements of Rule 23 be-

cause of the nature of the case, the makeup of the plaintiffs 
I

and class and because of the plaintiffs' failure to provide the

requisite facts necessary to support class certification.

Hence, the plaintiffs have failed to meet their burden of

demonstrating that they have met each and every requisite of

Rule 23.

The plaintiffs' reliance upon the "across the board"

approach to class actions is misplaced. In EAST TEXAS I4OTOR

FREIGHT, INC. v. RODRIGUEZ, supra, the Supreme Court reversed

the Fifth Circuit, holding that qhe appeals court had "p1ainIy

erred" in its "across the board" approach to discrimination

cases. The Court said in reference to such an approach:

"we are not unaware that suits alleging racial
or ethnic discrimination are often by their
very nature class suits, involving classwide
wrongs. Common questions of law or fact are
typically present. But careful attention to
the requirements of Fed. Rule Civ Proc 23
remains nonetheless indispensible. The mere
fact that a complaint alleges racial or ethnic
discrimination does not in itself ensure that
the party who has brought the lawsuit will be
an adequate representative of those who may
have been the real victims of that discrimina-
tion." 431 U.S. at 405-406.

This passage leaves no doubt but that class action

discrimination su.i-ts must meet all requirements of Rule 23.

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B. PLAINTIFFS DO NOT REPRESENT THE CLASS AND ARE NOT

Rule 23 (a) requires that the representative party for a

class must meet the real party in interest requirement of Rule

17 (a) . A plaintiff who does not share the alleged grievance

common to the class, should one exi-st, is not a member of the

class; nor does he have standing to litigate regarding the

alleged grievance.

1. Plaintiff has failed to show the existence

Plaintiffs attempt to isolate two classes based on

particular allegations of their complaint. One class is a1I

black citizens of the State of North Carolina and the second is

aI1 voting citizens of the State of North Carolina.

The class of black citizens whose voting strength is sub-

merged is not defined with any detail in the Plaintiffsrmotj-on.

Though the courts have liberally construed the exacting of a

class, the general outlines must be determinable at the outset

of the litigation and their identity must be feasible.

DeBREI\4AECKER v. SHORT , 433 F.2d 733 (5th Cir. 1970) , TIJERINA v.

HENRY, 48 F.R.D. 274 (D.N.I'1. 1969). Plaintiffs have drawn

an overbroad class based on a litigable factor "submerged and

diluted voting strength. "

Similarly, ptaintiffs' allegations are based on the impact

of future elections. Determj-ning "future members of a c1ass" is

too broad and too ill-defined language with which to establish a

c1ass. BARCELO v. BROWN, 78 F.R.D. 531 (D.P.R. 1978), EDWARDS v

SCHLESINGER, 377 F.Supp. I091 (D.D.C. L974).

The class of all voting citizens for those allegations not

involving discrimination against black citizens is even less

defined. Plaintiffs give no reasoning of why a separate class

must be created and more importantly which of the allegations

are at issue. Plaintiffs filed a complaint with seven causes of

action and amended said complaint with six additional causes.

In answering interrogatories filed with the court, plaintiffs

admit that several issues are moot; certain information regard-

ing allegations is currently unavailable and only certain



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districts are now in controversy. Plaintiff must list the

issues to which it seeks to represent this "class" and illus-

trate how these allegations affect this "C1aSS." I"IILLER v.

KRAWCZYK, 4L4 F.Supp. 998 (E.D. Wis. 1976).

2. Llaintiffs are not me
classes they seek to rePresent

fn order to represent a c1ass, the plaintiffs must show a

nexus between themselves and the members of the class. WELLS

v. RAMSEY, SCARLETT & CO., INC., 506 ?.2d 436 (5th Cir. 1975)-

A simple review of the identity of the plaintiffs and the over-

broad classes they would have the court certify exposes the

lack of nexus.

Two of the plaintiffs are black citizens and three are

white citizens. By definition, the three white plaintiffs must

meet a strong standard before they may represent all black vot-

ers whose voting strength has been submerged. Courts have con-

sj-stently held an individual cannot bring an action on behalf

of other persons unless they are similarly situated. KRAMER v.

UNION FREE SCHOOL DISTRICT NO. 15, 282 F.Supp. 70 (E.D.N.Y.

1968). SHIPP v. MEMPHIS AREA OFFICE, TENN. DEPT. OF EMPLOYMENT

sEcuRITY, 581 F.2d Ll67 (6th Cir. 1978), cert. denied 440 u.s.

980, 99 S.Cr. 1788, 60 L.Ed. 2d 240 (1979).

A plaintiff who does not share the alleged grievance common

to the class is neither a member of the class nor has standing

to Iitigate regarding the alleged grievance. Under RuIe 23(a) a

plaintiff must show membership in a class. The membership re-

quirement of Rute 23 (a) entails a showing that the representa-

tive plaintiff is personally "aggrieved" or harmed So that the

class representative has a personal stake in the outcome.

DOCTOR v. SEABOARD COAST LINE R.R., 540 F.2d 699, 705 (4th Cir.

L976). ("... /go support a class action which puts in issue

whether such a system is i-n violation of the Act /Trtte VT{/

there must be a representative party who has been personally

aggrieved.") see aIso, OATES v. CROWN ZELLERBACH CORP., 398

F.2d 496 (5th cir. 1968); WHITE v. GATES RUBBER CO., 53 F.R.D.

4L2 (D. Colo. 1971); NEWI{AN v. ANCO CORP., 313 F.Supp 1069



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(M.D. Tenn. 1970).

A civil plaintiff must be sufficiently injured by the acts

they assail so that they can be expected to conduct a precisely

defined, vigorous litigation. Segr €.g., SfMON v. EASTERN KY. 
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WELFARE RTGHTS ORGANTZATION , 426 U.S. 26 (L976) i WORTH v. SELDINT
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422 U.S. 490 (L975) i SIERRA CLUB v. MORTON, 405 U.S. 727 (1972).

StandingandRu1e23aretwinhurd1es.Thefactthat''asuit
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may be a class actj-on, ... adds nothing to the question of 
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standing, for even named plaintiffs who represent a class 'must 
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a11ege and show that they personally have been injured, not that I

the injury has been suffered by other, unidentified, members of
,

the class to which they belong and which they purport to 
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represent. " /citation omittedZ. SIMON, supra, 426 U.S. at 40 n,,l

20. See a1so, SOSNA v. IOWA, 4L9 U.S. 393, 403 (1975). 
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iIn EAST TEXAS MOTOR FREIGHT SYSTEM INC., v. RODRIGUEZ, 431 
I

U.S. 395 (1977) the representatives of the class certified were 
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inappropriate because "the trial court proceedings made clear

that/Ehenamedp1aintitta7werenotmembersofthec1aSS

of discriminatees they purported to represent. As this Court
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has repeatedly he1d, a class representative must be part of the 
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class and 'possess the same interest and suffer the same injury' I

as the class members. SCHLESINGER v. RESERVISTS COMMITTEE TO i

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STOP THE WAR, 4LB U.S. 208, 2L6. See, €.9., KREMENS v. BARTLEY, i

431 U.S. 119, 131 n. 12 (t977); SoSNA v. IOWA, 4!9 U.S. 393, 
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403 (1975); ROSARIO v. ROCKEFELLER, 410 U.S. 752, 759 n. 9 (1975);l

HALL v. BEALS, 396 U.S. 45, 49 (1959); BAILEY v. PATTERSON, 369

U.S. 31, 32-33 (1962)."431 U.S. at 403.

The Court's citations to ROSARIO and BAILEY are noteworthy.

Both of these cases hold that a class representative does not

have standing to litigate about injuries suffered by some mem-

bers of the class but by himself, even though he and the entire

c1ass may share other, common, injuries. Hence, the teaching of

RODRfGUEZ is that a class representative may litigate on behalf



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of the class only those issues which he would have standing to

litigate individually. Even prior to RoDRIGUEZ, courts have

recognized that a representative's failure to satisfy the stand-

ing doctrine disqualifies him from rePresenting the c1ass. see,

e.g., JACOBS v. MARTIN SWEETS, 550 F.2d 364 (6th Cir. t977)i 
,

FREEI,IAN v. I{OTOR CONVOY, INC., 409 F.SuPp. 1100 N.D. Ga. L976) i

JAMES v. SCHLESINGER, II E.P.D. Para. 10, go4 (E.D. Mich. 1976) i

PooLE v. WILLIAMS, 7 F.E.P. Cases Lo2 (S.o. Tex. 1974).

The Supreme Court,s concept of standing does not permit

combining the distinctly different injuries alleged by the

named plaintiff and alleged on behalf of the class by labeling

them a single harm under the rubric of discrimination' BAILEY

v. PATTERSON, 369 U.S. 31, 32-33, 82 S'Ct ' 549 ' 7 L'Ed ' 2d 5L2'

5L4,(Lg62).Standingcannotbeconferredbyamerely''con.
jectural" injury. WARTH v. SELDIN, 422 U'S' 490' 509' 45 L'Ed'

2d 343 , 360, 95 S. Ct . 2L97 (1975 ) '

3. The Plaintiffs an@ classes
an

act

Similar to the inabilitY of the

sent black citizens, the total grouP

represent aIt voting citizens due to

and fact.

In determining the question of commonatity of questions,

differences between the plaintiffs and members of the proposed

class must be scrutinized, as the differences may turn on the

facts of the individual case and predominate over any common

questions.Theincongruityisapparentintheverynatureof

theplaintiffs'complaint.BlackvotersarerePresentedfor

submergence of voting strength and all voters are represented

for an unknown list of issues. Broad generalizations cannot be

used to establish the existence of common questions of law or

fACt. WTLSON V. POST CONVICTION HEARING ACT OF THE COIVIMONWEALTH

OF PENNSYLVANIA , 32L F.SuPp ' L234 (W'O' Pa' 1971) '

Lookingattheallegationsofclassandcomparingthemto

the plaintiffs' answers to interrogatories filed with the court'

white ptaintiffs to rePre-

of citizens is unable to

differing questions of 1aw



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it would appear that the plaintiffs have Iittle in common with

the voting citizenry they al1ege to represent. Malapportionment

and dilution of minority voting strength are cited in Wake,

Guilford, Mecklenburg, Cabarrus, Forsyth, Durham, Cumberland

and the Northeastern counties yet the plaintiffs reside in

Randolph, Sampson, Irede11, Moore and Cumberland Counties.

Only plaintiff Eaglin has geographic commonality. Similar1y no

allegations of malapportionment and dilution are made for the

other home counties. Class members all must be victims of the

discriminatory policy or the required common question will not

be found to exist. HYATT v. UNfTED AIRCRAFT, 50 F.R.D. 242

(D.C. Conn. L970) , SOUTHERN v. BOARD OF TRUSTEES FOR THE DALLAS

INDEPENDENT SCHOOL DIST., 318 F.Supp. 355, aff'd.,461 F.2d L267

(5th Cir. L972) .

C. PLAINTIFFS SEEK TO PROMOTE THEIR OWN INTEREST

RuIe 23 (a) ( ) requires the representative to fairly and

adequately protect the interests of the class. This issue is of

critical importance in all class actions and the court is under

an obligation to pay careful attention to this prov.l-sion in

every case. EISEN v. CARLISLE & JACQUELfN, 391 F.2d 555

(2nd Cir. 1968).

The point made in the previous argument is poignant here

in that the plaintiffs reside j-n counties differing from those

complained, yet they claim to represent all interests. Should

the plaintiffs prevail on a1I or portions of their claims,

certain other claims may be barred for other members of the

cIass. Even more dangerous is the effect of a 1oss. The

potential res judicata effect on members of the class may prove

harsher than any complained of by the plaintiffs.

Several basic factors need to be used in determining both

the motive and adequacy of representation of the class by the

plaintiffs. First, there must be quality representation. See

EISEN above. Quality of representation embraces both the

competence of the legal counsel of the representati.ves and the



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stature and interest of the plaintiffs. JOHNSON v. GEORGIA

HIGHWAY EXPRESS, INC., 417 F.2d ll22 (5th Cir. 1969), CARPENTER

v. HALL, 311 F.Supp. 1099 (S.O. Tex. 1970). Second, the

plaintiffs must have a reasonable interest in the outcome of the

litigation. RODRIGUEZ v. SWANK, 318 F.Supp. 289 (N.o. I11.

1970) aff'd.,403 U.S. 90I, 91 S.Ct. 2202, 29 L.Ed. 2d 677

(1971). Third, the representative cannot have conflicting

interests with the members of the cIass. See EISEN. (Not a1l

voters have been shown to agree with the plaintiffs' position

and, perhaps, many are antagonistic. SCHY v. SUSQUEHANNA CORP.,

4L9 F.2d 1112, cert. denied, 400 U.S. 826, 91 S.Ct. 51 , 27 L.Ed.

55 (1970)). Fourth, the interests of the representative must be

co-extensive with the class. GOLDEN v. LOCAL 55 OF THE

TNTERNATTONAL ASSOC. OF FTREFTGHTERS, 633 F.2d 817 (9th Cir.

1980). The concerns voiced above about commonality raise con-

siderable questions of motive and position. FinalIy, the court

needs to evaluate the experience and competence of counsel for

the plaintiffs. Voting Rights Act and redistricting litigation

is complicated and difficult. The court should ensure adequate

protection for the class before authorj-zing particular counsel

to serve in their behalf.

III. SUMMARY

Defendants oppose the motion for certification of class for

the reasons stated above and urge the court to fo11ow the weII

charted guidelines set out by case 1aw before entrusting the

legal rights of millions of North Carolinians into the hands of

the plaintiffs. The responsibility of class representation is

one that should not be taken lightly.

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This the )f day of ilune , Lg82.

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RUFUS L. EDI,TISTEN
Attorney General

Ral.eigh, North Carolina 27502
Telephone: (919) 733-3377

Norma HarreLl
Tiare Smiley
Assistant Attorneys General

M.4dr8_/y%
$#ociate Attorney General

Jerris Leonard
KathLeen Heenan
Jerris Leonard &

900 17th Street,
Suite 1020
Washington, D. C.
Telephone: (202)

Associates, P.C.
N. W.

2 0005
872-L095

Attorneys for Defendants

Attorney Gener
Lega1 Affairs

AEt,orney General r s
N, C. Department of
Post Office Box 529



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CERTITICATE OT' SERVICE

I hereby certify that I

DEFENDANTSI RESPONSE TO PUGE

CERTIFICATION and }IETITORANDUM

: placing
il

a copy of same in the

addressed to:ll prepaid,

This the

have this day served the foregoing

PI,AINTIFTS I }TOTION FOR CLASS

IN SUPPORT OF' SAID RESPONSE bY

United States Post Office, Postage

J. Levonne Chambers
Leslie Winner
Chambers, Ferguson, Watt, Wallas,

Adkins & F'uller, P. A.
951 South Independence Boulevard
Charlotte, North Carolina 28202

Jack Greenberg
,James M. Nabrit, III
Lani Guinier
10 Columbus Circle
New York, New York 10019

Arthur J. Donaldson
Burke, Donaldson, Holshouser & Kenerly
309 North Main Street
Salisbury, North Carolina 28L44

Robert N. Hunter, Jt.
Attorney at Law
Post Office Box 3245
201 West l,tarket Street
Greensboro, North Carolina 27402

A+ day of June , Lg82.

ociate Attorney General