UNITED STATES COURT OF APPEALS

for the Fifth Circuit

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No. 95-31073

Summary Calendar

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IN RE: COMBUSTION

PLAINTIFFS' STEERING COMMITTEE

Plaintiffs-Appellees,

VERSUS

JOHN H. DAY, JR.; FRANKIE S. DAY; JOHN ALAN DAY;

DAVID MARK DAY; SHARON DAY HULGAN; WENDI S. DAY; and

MARTIE S. HUTCHINSON

Movants-Appellants.

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No. 95-31089

Summary Calendar

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IN RE: COMBUSTION

PLAINTIFFS' STEERING COMMITTEE,

Plaintiffs-Appellees,

VERSUS

PATRICK L. TESSIER,

Movant-Appellant.

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2

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No. 96-30208

Summary Calendar

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IN RE: COMBUSTION

PLAINTIFFS' STEERING COMMITTEE,

Plaintiffs-Appellees,

VERSUS

DIANNE P. COGLEY JOHNSON,

Movant-Appellant.

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No. 96-30210

Summary Calendar

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IN RE: COMBUSTION

PLAINTIFFS' STEERING COMMITTEE,

Plaintiffs-Appellees,

VERSUS

JOHN J. COGLEY, SR.; JOHN J. COGLEY, JR.,

Movants-Appellants.

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Appeal from the United States District Court

for the Western District of Louisiana

(94-MD-4000)

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November 13, 1996

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
 

1 Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

3

PER CURIAM:1

John J. Day, Jr., Patrick L. Tessier, Diane P. Cogley Johnson,

and John J. Cogley, Jr., all appeal the district court’s denial of

their requests for permission to file late proof of claims and be

included among the plaintiff class in this case. We affirm the

orders appealed by Mr. Day, Mr. Cogley and Mrs. Johnson. With

regard to Mr. Tessier's appeal, we vacate the district court's

order and remand for further proceedings.

I.

The above appeals all arise out of a mass disaster toxic tort

class action involving a hazardous waste dump site located in

Livingston Parish, Louisiana. The site served as a oil recycling

facility until 1980. It is now the Combustion, Inc. Superfund

site. The class contends that the defendants named in the action

are responsible for numerous damages including serious illnesses

suffered by those exposed to the toxic chemicals and also damage to

the property exposed to those chemicals. 

In 1991 the Combustion site class was certified by the state

district court. That same year, the state court ordered notice of

the class and the right to opt out of it be disseminated by mail to

the last known address of all class members and published in the

local newspapers. The deadline for opting out of the class was set
4

for May 1993. In 1993, the action was removed to federal district

court.

In July 1994, the district court ordered all putative class

members to file a proof of claim by December 31, 1994. The forms

were intended to assist the district court in claims evaluation and

trial preparation. The notice advised the putative class members

that failure to meet this deadline constituted waiver of any right

to participate in the litigation. This notice was also

disseminated by mail to last known address of all class members and

published in both local papers. By December 31, over 13,000

claimants had filed their proof of claim forms. In July of 1995

the district court approved a preliminary settlement agreement

between the class and some of the defendants. The court ordered a

September 1995 fairness hearing be held to consider the preliminary

settlement. The court further ordered that all class members who

had failed to timely file a proof of claim notify the court in

writing of their intention to appear at the fairness hearing and

show good cause for why they should be allowed to file a late proof

of claim and take part in the litigation. Appellants all appeared

at the hearing and were given an opportunity to justify their late

filing. The district court denied all of the appellants' requests

to file late claims and these appeals followed.

I.

A.
 

2 Day's brief lists seven members of the Day family as

appellants. However, we treat the brief as being submitted only on

behalf of John H. Day, Jr. because only John, Jr. signed the brief.

Parties appearing pro se must sign the documents they file. See

Local Rule 28.6; Robinson v. National Cash Register Co., 808 F.2d

1119, 1128 (5th Cir. 1987)(stating “a party appearing pro se must

sign the documents he files”).

 

3 Class members include “all persons or entities who or which

own real or personal property and/or live and/or operate places of

business . . . in Livingston Parish, Louisiana . . . .”

5

Johnson and Cogley argue that they were misled by the notice

informing them of the need to file a proof of claim. They argue

that they reasonably interpreted the notice as limiting eligible

filers to current property owners or residents of Livingston

Parish. The order is clearly not so limited and the district court

correctly rejected this argument. 

As to Mr. Day,2 he argues that he did not timely file because

he feared retaliation by his employer. He produced no evidence

tending to substantiate his fear and the district court was

entitled to reject this excuse as good cause to file a late proof

of claim. We have considered the other arguments made by Mr. Day,

and find them meritless.

B.

We now turn to Mr. Tessier’s appeal. In response to the

district court’s order regarding late proof of claim requests, Mr.

Tessier informed the district court by letter that he is a land

owner who qualifies as a class member3 and that he had not received
6

any notification of the suit until contacted after the December

deadline by an appraiser hired by one of the plaintiff attorneys:

Despite the fact that for more than 20 years I have owned over

100 acres of land less than one-quarter mile downstream form

the pollution source, no person notice was sent to me

regarding this lawsuit. I understand that notice was given in

the newspapers, but I have not seen any notices in the

Advocate. I do not read any newspapers from Livingston

Parish.

Mr. Tessier also attached a map of Livingston Parish that shows the

location of his property in relation to the Superfund site. The

court acknowledged receipt of this letter and instructed Mr.

Tessier to appear before the court on September 27, 1995.

At the hearing, Mr. Tessier stated that “his name and address

are readily ascertainable and [that] due process requires personal

notice when addresses are readily ascertainable through the public

records.” The court disagreed without discussion and issued an

order dismissing the request and stating “this Court found that

notice was reasonable and adequate in compliance with due process

requirements . . . .”

Federal Rule of Civil Procedure 23(c)(2) provides “[i]n any

class action maintained under subdivision (b)(3), the court shall

direct to the members of the class the best notice practicable

under the circumstances, including individual notice to all members

who can be identified through reasonable effort . . . .” FED. R.

CIV. P. 23(c)(2). In Eisen v. Charlisle & Jacquelin, the Supreme

Court held “the import of this language is unmistakable.
7

Individual notice must be sent to all class members whose names and

addresses may be ascertained through reasonable effort.” Eisen,

471 U.S. at 173; See also In re Nissan Motor Corp. Antitrust

Litigation, 552 F.2d 1088, 1097 (5th Cir. 1977)(stating that

publication is not a substitute for personal notice if the

individual’s name and address were ascertainable through reasonable

efforts). 

Mr. Tessier argues that his name and address were readily

discernable from the public records of Livingston Parish. If

reasonable effort would have uncovered his name and address, Mr.

Tessier did not receive the personal notification to which he is

entitled. Moreover, if he did not receive personal notification to

which he is entitled, this amounts to good cause for not filing a

timely proof of claim. Because it is not clear from the district

court’s order that the Eisen standard was applied or whether

reasonable effort would have uncovered Mr. Tessier’s name and

address, we remand this case to the district court to make such a

determination and for further proceedings. Specifically, the

district court’s inquiry should be whether reasonable effort would

have included a search of any public records that contain Mr.

Tessier’s name and address. If so, Mr. Tessier should be permitted

to file a late proof of claim and take part in the litigation.

III.

For the reasons stated above, we affirm the district court's

order denying Mr. Johnson, Mrs. Cogley and Mr. Day's requests to
8

file late claims. However we vacate the order denying Mr.

Tessier's request and remand this case to the district court for

further proceedings. 

AFFIRMED, VACATED and REMANDED.