1 United States Court of Appeals,

2

3 Fifth Circuit.

4

5 No. 94-60545.

6

7 Dessie Lee APPLEWHITE, et al., Plaintiffs-Appellants,

8

9 v.

10

11 REICHHOLD CHEMICALS, INC., Defendant-Appellee.

12

13 Oct. 31, 1995.

14

15 Appeal from the United States District Court for the Southern

16 District of Mississippi.

17

18 Before WISDOM, GARWOOD and DAVIS, Circuit Judges.

19

20 WISDOM, Circuit Judge.

21

22 The appellants seek review of the district court's refusal to

23 certify a class action lawsuit and its dismissal of the appellants'

24 complaint. We AFFIRM the district court's denial of class

25 certification but VACATE the dismissal and REMAND for

26 reconsideration of whether dismissal is appropriate in this case.

27 I.

28

29 Reichhold Chemicals, Inc., the defendant/appellee, operated a

30 chemical manufacturing plant in Columbus, Mississippi between

31 January 1975 and March 1977. Operations at the plant closed after

32 an explosion and fire in 1977. In 1984, the Reichhold site was

33 designated for cleanup under the EPA Superfund after the discovery

34 of toxic wastes at the site.

35 Numerous suits were filed against Reichhold Chemicals. In

36 1989, in one of these cases, Levell Mark et al. v. Reichhold

37 Chemicals, Inc., a class was certified under Federal Rule of Civil

38 Procedure 23(b)(1)(B) for the resolution of punitive damage claims

39 against Reichhold Chemicals. The notice of certification provided
 

1Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 471-72

(5th Cir.1986). 

1 that only those litigants with a lawsuit pending against Reichhold

2 or filed within sixty days from the date of notice seeking punitive

3 damages and who were found entitled to compensatory damages would

4 be eligible to share in the class's recovery.

5 The plaintiff/appellants filed this suit in response to the

6 punitive damages class notice. Dessie Lee Applewhite, along with

7 two hundred other plaintiffs, filed this suit seeking both

8 compensatory and punitive damages from Reichhold Chemicals for

9 injuries allegedly caused by the defendant's operations in

10 Columbus. This action was originally filed in the Mark case. The

11 case, however, was subsequently re-captioned Dessie Lee Applewhite

12 et al. v. Reichhold Chemicals, Inc.

13 In 1993, the plaintiffs, in a joint motion with plaintiffs in

14 the case of Delores Abram et al. v. Reichhold Chemicals, Inc.,

15 filed a motion for class certification under Rule 23(b)(3). After

16 some discovery, the district court denied the plaintiffs' motion

17 for class certification. The district court also dismissed the

18 plaintiffs' complaint without prejudice based on a March 3, 1992

19 order in the Mark case requiring all subsequent suits against

20 Reichhold Chemicals regarding the Columbus site to be filed

21 separately. On appeal, the plaintiffs challenge both of these

22 decisions.

23 II.

24

25 The district court has wide discretion in deciding whether to

certify a class action.1 26 We review this decision for an abuse of
 

2Id. at 472. 

 

3Zeidman v. J. Ray McDermott & Company, Inc., 651 F.2d 1030,

1038 (5th Cir.1981). 

 

4See, Jenkins, 782 F.2d at 472-73. 

 

5The district court's memorandum opinion denying class

certification and dismissing the plaintiffs' complaint, Record,

volume 2 at 272. 

 

6The plaintiffs' brief fails to address the requirements of

Rule 23(b)(3) that the common issues predominate over those

issues affecting individual litigants and that the movant show

that a class action is the superior method of adjudication. 

 

7Gann v. Fruehauf Corporation, 52 F.3d 1320, 1328 (5th

Cir.1995) (deeming a claim abandoned on appeal because the

appellant did not "advance arguments in the body of his brief in

support of his appeal of his ... claims"); Cavallini v. State

Farm Mutual Auto Insurance Company, 44 F.3d 256, 260 n. 9 (5th

Cir.1995) (noting that "the failure to provide any legal or

factual analysis of an issue results in waiver of that issue"); 

United States v. Maldonado, 42 F.3d 906, 910 n. 7 (5th Cir.1995)

(refusing to consider an issue because it was not discussed in

discretion.2 1 The party seeking class certification has the burden

of showing that the requirements for a class action have been met.3 2

3 There are six basic requirements for a Rule 23(b)(3) class action

4 suit. First, Rule 23(a) imposes four prerequisites: numerosity,

5 commonality, typicality, and adequacy of representation. In

6 addition, Rule 23(b)(3) requires that the common factual and legal

7 issues predominate and that the movant show that a class action is

the superior method of adjudication.4 8

9 The district court determined that the plaintiffs had

10 "totally failed to meet the requirements of Rule 23 for

certification of the proposed class."5 11 We agree. On appeal, the

12 plaintiffs' brief fails to address two of the six requirements for

class action certification.6 13 Failure to brief and argue these

issues constitutes waiver.7 14 Also, in regard to the commonality
the appellant's brief). 

 

8In their brief, the plaintiffs argue that the common issue

is the defendant's gross negligence. The plaintiffs close their

section on commonality by stating that "the parties to this

litigation have one or more issues of law or fact common to them

all". The plaintiffs choose not to identify what these

additional common issues are, if any. We will not attempt to

identify those issues on behalf of the plaintiffs. 

 

9Stewart v. Winter, 669 F.2d 328, 335 n. 16 (5th Cir.1982)

(noting that "by its terms, Rule 23(a)(2) requires more than one

common question"). 

 

10The plaintiffs also maintain that the district court's

dismissal violates their rights to due process and equal

protection of the laws as well as the doctrine of separation of

powers. The plaintiffs cite no authority in support of these

arguments. In the light of the plaintiffs failure to adequately

requirement, the plaintiffs only assert one common issue.8 1

2 Although the threshold for commonality is not high, class

certification requires at least two issues in common.9 3

4 Furthermore, the plaintiffs seek a Rule 23(b)(3) class action which

5 requires that the common issues predominate. If the plaintiffs

6 cannot identify more than one common issue, they cannot argue that

7 the common issues predominate this litigation. Finally, the

8 omissions in the plaintiffs' appellate brief, as well as counsel's

9 conduct below, counsels against a finding that the class members

10 would be adequately represented. Since the plaintiffs have failed

11 to demonstrate that their case meets the requirements of Rule 23,

12 we hold that the district court did not abuse its discretion when

13 it denied class certification.

14 The plaintiffs also argue that the district court erred when

15 it dismissed their complaint without prejudice based on a blanket

16 order that all future suits against Reichhold Chemicals should be

filed separately.10 17 Generally, permissive joinder of plaintiffs
brief these issues and our decision to vacate the dismissal and

remand, we do not address the plaintiffs constitutional

arguments. 

 

11Field v. Volkswagenwerk AG, 626 F.2d 293, 299 (3rd

Cir.1980). Rule 20 requires that all of the plaintiffs' claims

arise out of the same transaction or occurrence and that there is

a common issue of fact or law. See, Demboski v. CSX

Transportation, Inc., 157 F.R.D. 28, 29-30 (S.D.Miss.1994). 

 

12Mosley v. General Motors Corporation, 497 F.2d 1330, 1332-

33 (8th Cir.1974); see also, Demboski, 157 F.R.D. at 29; Hanley

v. First Investors Corporation, 151 F.R.D. 76, 77-80

(E.D.Tex.1993). 

1 under Federal Rule of Civil Procedure 20 is at the option of the

2 plaintiffs, assuming they meet the requirements set forth in Rule

20.11 3 Under Rules 20 and 21, the district court has the discretion

4 to sever an action if it is misjoined or might otherwise cause

delay or prejudice.12 5 Further, the district court also has

6 discretion to sever claims under Federal Rule of Civil Procedure

7 42(b), in furtherance of convenience or economy, or to prevent

8 prejudice. This discretion, however, should be exercised after an

9 examination of the individual case. Thus, we remand this case for

10 the district court to consider whether the plaintiffs are properly

11 joined and whether they should be allowed to continue in one

12 action.

13 III.

14

15 We AFFIRM the district court's decision not to certify a class

16 action under Rule 23(b)(3) but VACATE the dismissal and REMAND for

17 further proceedings on the issues of joinder and the advisability

18 of severance.

19