TJOFLAT, Circuit Judge:
Motel 6 Multipurpose, Inc. ("Motel 6") seeks a writ of mandamus
Motel 6 owns and operates over 750 motels across the United States. The instant petition for mandamus arises from two consolidated cases alleging that Motel 6 has a nationwide practice or policy of discriminating against its customers and its employees on the basis of race. In the first case, five Motel 6 patrons ("the Jackson plaintiffs") claim that Motel 6 unlawfully discriminated against them on the basis of their race. They claim that they were either denied accommodations at a Motel 6 motel or provided substandard accommodations pursuant to an alleged nationwide Motel 6 practice or policy of (1) refusing to rent otherwise vacant rooms to blacks and other non-white persons, (2) segregating black patrons and other non-white patrons from white patrons within a single facility, and (3) providing substandard housekeeping and other services to black patrons and other non-white patrons as compared to white patrons. Two of the five named plaintiffs allege that they were denied rooms at the same motel; the remaining three named plaintiffs each allege that they were subjected to discriminatory treatment at three separate other motels. The Jackson plaintiffs seek, on behalf of themselves and similarly situated patrons of Motel 6, injunctive relief and money damages under Title II of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a et seq.,
In the second case, five former Motel 6 employees ("the Petaccia plaintiffs") claim that, as Motel 6 employees, they were required to discriminate against black and other non-white patrons, that Motel 6 retaliated against them when they refused to do so, and that Motel 6's discrimination against blacks and other non-whites created a "hostile work environment." The Petaccia plaintiffs seek, on behalf of themselves and all Motel 6 employees who have been required to work in the alleged hostile environment, injunctive relief and money damages under § 1981 and the retaliation provision of Title II.
After the cases were consolidated, the plaintiffs moved for an order allowing them relief from the Middle District of Florida's Local Rule 4.04(e), which provides that
The district court granted relief from Local Rule 4.04(e) in a February 21, 1997, order that authorized the plaintiffs to:
The district court entered this order allowing communication with potential class members even though it had not yet ruled on either the Jackson plaintiffs' or the Petaccia plaintiffs' motions for class certification.
On August 15, 1997, the district court certified the Jackson plaintiffs as class representatives and referred the question of certification of the Petaccia plaintiffs to a magistrate judge for further consideration.
Motel 6 now petitions for mandamus again, arguing that the communications order was an abuse of discretion ab initio, and also that because the Jackson plaintiffs cannot properly be certified as class representatives, that portion of the communications order allowing the Jackson plaintiffs to advertise their allegations nationwide and to communicate with current and former Motel 6 employees is entirely unnecessary and an abuse of the district court's discretion.
In In re Estelle, 516 F.2d 480 (5th Cir.1975), we outlined the purview of mandamus:
Id. at 483 (internal citations and quotations omitted). We may issue the writ "only in drastic situations, when no other adequate means are available to remedy a clear usurpation of power or abuse of discretion." In re Temple, 851 F.2d 1269, 1271 (11th Cir. 1988).
We hold that the instant petition warrants the issuance of mandamus because the district court's order allowing the plaintiffs to communicate with potential class members was an abuse of discretion. The communications order was entered months prior to any decision regarding whether either of the two proposed classes would in fact be certified. While we cannot say that orders authorizing communication with potential class members may never precede class certification, district courts must strive to avoid authorizing injurious class communications that might later prove unnecessary. An order authorizing class communications prior to class certification is likely to be an abuse of discretion when (1) the communication authorized by the order is widespread and clearly injurious and (2) a certification decision is not imminent or it is unlikely that a class will in fact be certified. In such circumstances, the danger of abuse that always attends class communications — the possibility that plaintiffs might use widespread publication of their claims, disguised as class communications, to coerce defendants into settlement — is not outweighed by any need for immediate communications.
The advertisements and mass mailings allowed by the order at issue in the instant petition are nationwide in scope and are surely causing serious and irreparable harm to Motel 6's reputation and to its relationship with its employees. "The only conceivable alternative [to mandamus relief] — inevitable reversal by this court after the defendants have been forced to endure full discovery, full litigation, and a full trial—is scarcely adequate" to redress this injury. In re Cooper, 971 F.2d 640, 641 (11th Cir.1992) (internal quotations omitted). Moreover, the order was entered almost six months prior to the court's decision to certify the Jackson class and to refer the Petaccia plaintiffs' motion for class certification to a magistrate judge. (The Petaccia plaintiffs' motion for class certification is still pending.) Most important, the Jackson plaintiffs clearly could not properly be certified as class representatives.
The Supreme Court has noted that,
General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 2370, 72 L.Ed.2d 740 (1982) (footnotes omitted). The
A class action may be maintained only when it satisfies all the requirements of Fed.R.Civ.P. 23(a)
Fed.R.Civ.P. 23(b)(3). "In other words, `the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, must predominate over those issues that are subject only to individualized proof.'" Kerr v. City of West Palm Beach, 875 F.2d 1546, 1557-58 (11th Cir. 1989) (quoting Nichols v. Mobile Bd. of Realtors, Inc., 675 F.2d 671, 676 (5th Cir. Unit B 1982)).
The Jackson plaintiffs have argued that the issue common to the claims of all the named plaintiffs and all putative class members—whether Motel 6 has a practice or policy of discriminating against patrons and employees on the basis of race—predominates over all the legal and factual issues that will attend various plaintiffs' and class members' individual claims. The district court agreed, on the ground that "forum-by-forum resolution of each and every issue in
The Jackson plaintiffs' claims will require distinctly case-specific inquiries into the facts surrounding each alleged incident of discrimination. The issues that must be addressed include not only whether a particular plaintiff was denied a room or was rented a substandard room, but also whether there were any rooms vacant when that plaintiff inquired; whether the plaintiff had reservations; whether unclean rooms were rented to the plaintiff for reasons having nothing to do with the plaintiff's race; whether the plaintiff, at the time that he requested a room, exhibited any non-racial characteristics legitimately counseling against renting him a room; and so on. Even more variegated issues would certainly be present in the claims of hundreds or even thousands of members of an improperly certified class. Furthermore, even factual issues that are common to many of the Jackson plaintiffs — such as whether any rooms were in fact available when a particular plaintiff inquired—will require highly case-specific determinations at trial. These issues are clearly predominant over the only issue arguably common to the class — whether Motel 6 has a practice or policy of racial discrimination. Indeed, we expect that most, if not all, of the plaintiffs' claims will stand or fall, not on the answer to the question whether Motel 6 has a practice or policy of racial discrimination, but on the resolution of these highly case-specific factual issues.
This failure of predominance is readily apparent from a reading of the Jackson plaintiffs' complaint. We therefore hold that the district court's certification of the Jackson class was erroneous as a matter of law and was therefore an abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). We have in the past issued mandamus to direct a district court to decertify an improperly certified class, when the certification of that class was a clear abuse of discretion. See, e.g., In re Temple,
In sum, we hold that the district court abused its discretion in entering an order allowing communication with potential class members when the authorized communications would be nationwide in scope and would cause serious and irreparable injury to the defendant, when a decision on class certification was not imminent, and when the proposed Jackson class was clearly not certifiable. Under these circumstances, there was no need for the plaintiffs immediately to begin the highly injurious publication of their claims authorized by the order — publication that could and did continue for months, as the court contemplated the plaintiffs' motions for class certification. We therefore grant Motel 6's petition for mandamus relief and issue the writ, directing the district court to decertify the Jackson class and to vacate the portion of its February 21 order that authorizes preliminary class communications by the Jackson plaintiffs.
As noted above, the Petaccia plaintiffs allege that they were required as part of their employment by Motel 6 to participate in discrimination against non-white customers, that they were retaliated against when they refused to do so, and that Motel 6's discrimination against non-white customers, along with other instances of discriminatory treatment, created a hostile work environment at Motel 6 motels around the country.
The Petaccia plaintiffs' claim for "retaliation" is brought under 42 U.S.C. §§ 1981
As explained above, we find the February 21 communications order to have been an abuse of discretion, because it is clearly injurious and, with regard to the Petaccia plaintiffs, because the court's decision on certification of the Petaccia class was not and still may not be imminent. Certification of that class is still pending before the magistrate judge, ten months after the communications order was entered. We therefore grant the petition for mandamus and direct the district court to vacate the portion of the order allowing the Petaccia plaintiffs to advertise their claims and conduct mass mailings to Motel 6 employees.
For the foregoing reasons, we GRANT Motel 6's petition for mandamus relief. We direct the district court to decertify the Jackson class and vacate that part of the February 21 order allowing the Jackson plaintiffs to conduct preliminary class communications. We also direct the district court to vacate the portion of the February 21 order that authorizes
42 U.S.C. § 2000a (1994).
42 U.S.C. § 1981 (1994).
42 U.S.C. § 2000a-2 (1994). As we discuss infra, the Petaccia plaintiffs do not have standing to bring a claim for injunctive relief under this section.
Fed.R.Civ.P. 23(b). For the reasons recited in the text, in considering the factors listed in Rule 23(b)(3), we find that management of the Jackson class action would involve overwhelming difficulties, and that concentration of the highly case-specific claims of dozens or hundreds of plaintiffs from around the country in the Middle District of Florida would be undesirable.