Jane Doe v. Southern Gyms, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-140

JANE DOE

VERSUS

SOUTHERN GYMS, LLC, ET AL.

**********

APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 71767-B
HONORABLE THOMAS F. FUSELIER, DISTRICT JUDGE

**********

JOHN D. SAUNDERS
JUDGE

**********

Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Robert Jefferson David, Jr.
P. O. Drawer 51268
Lafayette, LA 70505-1268
(337) 269-0052
COUNSEL FOR DEFENDANT APPELLANT:
Southern Gyms, LLC

Timmy James Fontenot
P. O. Box 68
Mamou, LA 70554
(337) 468-4052
COUNSEL FOR PLAINTIFF APPELLEE:
Jane Doe

Douglas Michael Chapoton
Powers, Sellers & Chapoton
P. O. Box 15948
Baton Rouge, LA 70895
(225) 928-1951
COUNSEL FOR DEFENDANT APPELLANT:
Anytime Fitness, Inc.

A. Simone Manuel
701 Poydras Street, Ste 4800
New Orleans, LA 70139-4800
(504) 561-0400
COUNSEL FOR DEFENDANT APPELLANT:
Lexington Insurance Company

SAUNDERS, Judge.

This case involves a plaintiff who filed a class action against the assistant

manager of a fitness gym, the fitness gym, the parent company of the fitness gym,

and the fitness gym’s insurance company. This appeal deals solely with the issue

of whether the trial court correctly certified the class. We affirm.

FACTS AND PROCEDURAL HISTORY:

Plaintiff, Jane Doe (Doe), was contacted in April 2010 by the members of

the Baton Rouge Police Department. She was asked to identify pictures of herself

taken in various stages of undress. These pictures were taken by Terry Telschow

(Telschow), as assistant manager at Anytime Fitness, located at 200 Government

Street in Baton Rouge, Louisiana. Telschow, using a hidden pen camera, admitted

to placing the camera in the ladies locker room on ten to fifteen occasions between

November 1, 2009, and April 5, 2010. While meeting with the police, Doe learned

that there were several other victims of the actions of the Telschow.

On June 25, 2010, Doe filed a class action petition for damages against

Southern Gyms, LLC, Anytime Fitness, Inc., Terry Telschow, and eventually, after

amending her original petition on September 28, 2010, Lexington Insurance

Company (Southern Gyms, LLC; Anytime Fitness, Inc.; Telschow; and Lexington

Insurance Company collectively “Defendants” hereafter). After motions not

relevant to this appeal were made and writs taken on other issues, the trial court

certified the requested class as “all females who physically entered the women’s

restroom/locker room/ changing room at Anytime Fitness, 200 Government Street,

Baton Rouge, LA 70802 from November 1, 2009, through and including April 5

2010.”

Defendants perfected a timely appeal. In the appeal, they raise two

assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred and was manifestly erroneous in finding
that Jane Doe presented sufficient facts to prove by a preponderance
of evidence that class certification was proper under [La.Code Civ.P.
art.] 591.

2. The trial court abused its discretion in certifying the class under
[La.Code Civ.P. art.] 591.

DISCUSSION OF THE MERITS:

Defendants assert in their two assignments of error that the trial court

incorrectly certified the class. We find no merit in this assertion.

Louisiana Civil Procedure Article 591 states:

A. One or more members of a class may sue or be sued as
representative parties on behalf of all, only if:

(1) The class is so numerous that joinder of all members
is impracticable.

(2) There are questions of law or fact common to the
class.

(3) The claims or defenses of the representative parties
are typical of the claims or defenses of the class.

(4) The representative parties will fairly and adequately
protect the interests of the class.

(5) The class is or may be defined objectively in terms of
ascertainable criteria, such that the court may determine
the constituency of the class for purposes of the
conclusiveness of any judgment that may be rendered in
the case.

B. An action may be maintained as a class action only if all of the
prerequisites of Paragraph A of this Article are satisfied, and in
addition:

(1) The prosecution of separate actions by or against
individual members of the class would create a risk of:

(a) Inconsistent or varying adjudications
with respect to individual members of the
class which would establish incompatible
standards of conduct for the party opposing
the class, or
2

(b) Adjudications with respect to individual
members of the class which would as a
practical matter be dispositive of the
interests of the other members not parties to
the adjudications or substantially impair or
impede their ability to protect their interests;
or

(2) The party opposing the class has acted or refused to
act on grounds generally applicable to the class, thereby
making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class
as a whole; or

(3) The court finds that the questions of law or fact
common to the members of the class predominate over
any questions affecting only individual members, and
that a class action is superior to other available methods
for the fair and efficient adjudication of the controversy.
The matters pertinent to these findings include:

(a) The interest of the members of the class
in individually controlling the prosecution or
defense of separate actions;

(b) The extent and nature of any litigation
concerning the controversy already
commenced by or against members of the
class;

(c) The desirability or undesirability of
concentrating the litigation in the particular
forum;

(d) The difficulties likely to be encountered
in the management of a class action;

(e) The practical ability of individual class
members to pursue their claims without
class certification;

(f) The extent to which the relief plausibly
demanded on behalf of or against the class,
including the vindication of such public
policies or legal rights as may be implicated,
justifies the costs and burdens of class
litigation; or

(4) The parties to a settlement request certification under
Subparagraph B(3) for purposes of settlement, even
3

though the requirements of Subparagraph B(3) might not
otherwise be met.

C. Certification shall not be for the purpose of adjudicating claims or
defenses dependent for their resolution on proof individual to a
member of the class. However, following certification, the court shall
retain jurisdiction over claims or defenses dependent for their
resolution on proof individual to a member of the class.

“The appellate courts will only decertify a class where there is an abuse of

the trial judge’s vast discretion.” Banks v. New York Life Ins. Co., 98-551, p. 6 (La.

12/7/98), 722 So.2d 990, 993-94, cert. denied, 528 U.S. 1158, 120 S.Ct. 1168

(2000). Under La.Code Civ.P. art. 591.

In order for class certification to be proper, “the burden is on the
plaintiffs to establish that the statutory criteria for a class certification
are met.” Duhe v. Texaco, Inc., 99-2002, p. 11 (La.App. 3 Cir 2/7/01),
779 So.2d 1070, 1078, writ denied, 01-637 (La.4/27/01), 791 So.2d
637; see also Clark v. Trus Joist MacMillian, 02-676, 02-512 (La.App.
3 Cir. 12/27/02), 836 So.2d 454, 459, writ denied, 03-275
(La.4/21/03), 841 So.2d 793 (“Plaintiffs must establish by
preponderance of the evidence that each of the elements for class
certification has been met.”). However, “[t]he district court has wide
discretion in deciding whether to certify a class and the decision will
not be overturned absent a finding of manifest error or abuse of
discretion.” Roberson v. Town of Pollock, 05-332, p. 9 (La.App. 3 Cir.
11/9/05), 915 So.2d 426, 432, writ denied, 06-213 (La.4/24/06), 926
So.2d 550. Further, “[t]he court should err on the side of maintaining
the class action since the judge may always modify or amend the class
at any time prior to a decision on the merits.” Clark, 836 So.2d at 459-
60 (citing La.Code Civ.P. art. 592 A(3)(c) ).

Gunderson v. F. A. Richard & Assoc., Inc., 07-331, 07-264, 07-400, p. 9 (La.App.

3 Cir. 2/27/08), 977 So.2d 1128, 1136-37, writs denied, 08-1069, 08-1063, 08-

1072 (La. 9/19/08), 992 So.2d 953 (alterations in original). The threshold

requirements of La.Code Civ.P. art. 591(A) are numerosity, commonality,

typicality, designation of class representatives and definition of the class using

objective criteria. Clark, 836 So.2d 454.

NUMEROSITY:

4

Defendants’ objection to this class certification focuses mainly on the

assertion that Doe failed to prove numerosity. “Generally, this requirement is

satisfied upon a showing the plaintiffs are so numerous that separate suits would

unduly burden the courts and joinder of all claims is impractical.” Clark, 836 So.2d

at 461 (citing Duhe, 779 So.2d 1070; Johnson v. Orleans Parish Sch. Bd., 00-825

(La.App. 4 Cir. 6/27/01), 790 So.2d 734).

There is no set number at which a class is considered so numerous as
to make joinder impracticable. Whether a class is so numerous as to
make joinder impracticable is based upon the facts and circumstances
of each individual case. Dumas v. Angus Chemical Co., 25,632
(La.App. 2 Cir. 3/30/94), 635 So.2d 446, writ denied, 94-1120 (La.
6/24/94), 640 So.2d 1349. It is within the trial court’s great discretion
to determine if, under the facts and circumstances of the case before it,
it is in the best interest of judicial efficiency and economy to certify
the action as a class action. See Atkins v. Harcross Chemicals, Inc.,
93-1904-1911 (La.App. 4 Cir. 5/17/94), 638 So.2d 302, writ denied,
94-2158 (La. 11/11/94), 644 So.2d 396; Dumas, 635 So.2d 446.
Therefore, a trial court’s decision on whether a class meets the
numerosity requirement will not be disturbed absent an abuse of
discretion.

Ducote v. City of Alexandria, 95-1197, p. 14 (La.App. 3 Cir. 3/6/96), 670 So.2d

1378, 1387.

Here, the record provides that Telschow admitted to videotaping women in

various states of undress from November 1, 2009, to April 5, 2010, on ten to

fifteen occasions. He also admitted that there are at least five other women that he

videotaped during that time that he could not identify. Doe submitted evidence of

a list approximately 250-300 women that went into Anytime Fitness during that

time period. Any of those women that entered into the area Telschow was

videotaping could have been exposed to his camera. Thus, each woman could

potentially have suffered damages due to the fear of images surfacing depicting

them in various states of undress. We note that Anytime Fitness is a nationwide

business entity which allows its members to use any location, nationwide. Thus,

5

there is potential for aggrieved parties to be located not only in Louisiana, but other

states as well and, certainly, from areas outside of Baton Rouge, Louisiana.

The number of women provided by Doe and the various potential locations

of aggrieved parties provide a basis for the trial court to find that the lack of a class

action could unduly burden the courts and joinder of all interested parties is

impractical. Given the above and our directive of erring on the side of maintaining

the class action because the judge may always modify or amend the class at any

time prior to a decision on the merits, we find no abuse of discretion by the trial

court in ruling that Doe has met the numerosity requirement.

COMMONALITY:

This requirement is met if plaintiffs can demonstrate that there is “one issue,

the resolution of which will affect all or a significant number of plaintiffs.” Duhe,

779 So.2d at 1078. In this case, the common issue for all potential plaintiffs is

whether they have suffered harm due to Telschow’s admission to videotaping

women in various states of undress from November 1, 2009, to April 5, 2010.

Defendants contend that class certification must fail because each plaintiff would

have differing degrees of injury. This contention is without merit. It is not

necessary that all plaintiffs suffer identical damage and “individual questions of

quantum do not preclude a class action when predominant liability issues are

common to the class.” McCastle v. Rollins Env’t Servs. of Louisiana, Inc., 456

So.2d 612, 620 (La.1984). Accordingly, we find no abuse of discretion by the trial

court in concluding that Doe has met the commonality requirement.

TYPICALITY:

Typicality necessitates that the claims of class representatives are typical of

all members. “It satisfies typicality if the representative plaintiffs’ claims arise out

of the same event or course of conduct as the class members’ claims and are based
6

on the same legal theory.” Duhe, 779 So.2d at 1079. Here, Doe was positively

identified in pictures by the Baton Rouge Police Department. Her damages arise

out of the same events as the class. Thus, Doe has met the typicality requirement.

DESIGNATION OF CLASS REPRESENTATIVES:

“The test for adequate representation requires that class representatives have

sufficient interest in the outcome of the case to insure vigorous advocacy of the

cause. Additionally, it must be shown that counsel for the representatives are

competent and experienced and will adequately represent members of the class.”

Clark, 836 So.2d at 462. Here, defendants have not disputed that Doe has

sufficient interest in the outcome of the case, nor have they disputed that Doe’s

counsels are competent, experienced, and will adequately handle this case.

DEFINITION OF THE CLASS USING OBJECTIVE CRITERIA:

“This element requires the class be defined objectively in terms of

ascertainable criteria for purposes of the conclusiveness of the judgment.” Id. Here,

the trial court defined the class as, “all females who physically entered the

women’s restroom/locker room/ changing room at Anytime Fitness, 200

Government Street, Baton Rouge, LA 70802 from November 1, 2009, through and

including April 5 2010.” We find no error in this class definition.

CONCLUSION:

Southern Gyms, LLC, Anytime Fitness, Inc., Terry Telschow, and

Lexington Insurance Company raise two assignments of error. Both assignments

contend that the trial court erred in certifying the class under La.Code Civ.P. art.

591.

We find no error by the trial court in certifying the class. Thus, we find no

merit to the assignments of error and affirm the trial court in this regard. All costs

7

of these proceedings are assessed to Southern Gyms, LLC, Anytime Fitness, Inc.,

Terry Telschow, and Lexington Insurance Company.

AFFIRMED.

8