# In th e United States Court of Federal Cl aims

No. 15-1297C (F iled: May

27, 2016)

************************************* DOUGLAS G. B ROW N et al., F or * Themselves and As Representative of a * Class of Similarly

Situated Persons, *

* Rails-to-Trails; Motion to Certify a Class Plaintiffs, * Action; F a ilure to Satisfy All Requirements

* of RCF C 23; J oinder Not I mpracticable;

v. * W al-Mart Stores, I nc.

* THE UNI TED STATES, *

* Defendant. *

*************************************

J . Robert Sears, St. L ouis, MO, for plaintiffs.

J oanna K. B rinkman, United States Department of J ustice, W ashing ton, DC, for defendant.

OP INION AND ORDER

SWEENEY , J udg e

I n this Rails-to-Trails case, plaintiffs own real property in Cleveland County , North Carolina, adjacent to a railroad rig ht-of-way . They

contend that the United States, by authoriz ing the conversion of the railroad rig ht-of-way into a recreational trail pursuant to the National Trail Sy stems Act (“Trails Act”), took their property without pay ing just compensation in violation of the F ifth Amendment to the United States Constitution. Plaintiffs bring suit in this court on behalf of themselves and those similarly situated, and now move to certify the case as a class action. F or the reasons set forth below, the court denies plaintiffs’ motion.

I. BACK G ROUND

The Trails Act, as amended, provides for the preservation of “established railroad rightsof-way for future reactivation of rail service” by authoriz ing the interim use of such rights-of-way as recreational and historical trails. 1 16 U.S.C. § 1247 (2012). This process is referred to as “railbanking ,” and is overseen by the Surface Transportation B oard (“B oard”), id., the federal

1 The court derives this backg round from the relevant statutes and reg ulations, the complaint, the amended complaints, the court’s docket, and the ex hibits attached to the parties’ briefs in support of and opposition to plaintiffs’ motion to certify a class action.ag ency

with the ex clusive jurisdiction to reg ulate “the construction, acquisition, operation, abandonment, or discontinuance” of most railroad lines in the United States, 49 U.S.C. § 10501(b) (2012).

B e fore railbanking

can occur, the railroad company must seek to abandon its line, either by initiating abandonment proceeding s with the B o ard pursuant to 49 U.S.C. § 10903, or by requestingthat the B o ard ex empt it from such proceeding s pursuant to 49 U.S.C. § 10502. W h ile consideringthe railroad company ’s abandonment application or ex emption request, the B o ard will entertain protests and comments from interested third parties, including requests from interested third parties for the interim use of the railroad line as a trail pursuant to 16 U.S.C. § 1247(d). 49 C.F .R. §§ 1152.25, 1152.29(a) (2014).

I f an interested third party submits a trail use request to the B oard that satisfies the requirements of 16 U.S.C. § 1247(d), the B oard makes the necessary finding s pursuant to 49 U.S.C. § 10502(a), and the railroad company ag rees to neg otiate a trail use agreement, the B oard will issue a Notice of I

nterim Trail Use or Abandonment (“NI TU”). I d. § 1152.29(b), (d). The effect of the NI TU is to “[ p] ermit the railroad to discontinue service, cancel any applicable tariffs, and salvag e track and materials, consistent with interim trail use and rail banking . . . ; and permit the railroad to fully abandon the line if no ag reement is reached 180 day s after the NI TU is issued, subject to appropriate conditions . . . .” I d. § 1152.29(d)(1). The B o ard will entertain requests to ex tend the 180-day deadline to enable further neg otiations. I f the railroad company and the interested third party ex ecute a trail use ag

reement, then abandonment of the railroad line is stay ed for the duration of the ag reement. I d. § 1152.29(d); 16 U.S.C. § 1247(d). I f no trail use
ag reement is ex ecuted, the railroad company is permitted to fully

abandon the line. 49 C.F .R. § 1152.29(d). I f the railroad company notifies the B o ard that it has fully abandoned the line, see id. § 1152.29(e)(2), the B oard is divested of jurisdiction over the abandoned railroad line and “state law reversionary

property interests, if any , take effect.” Caldwell v. United States, 391 F .3d 1226, 1228-29 (F e d. Cir. 2004).

On Aug ust 4, 2015, the B oard issued a NI TU pertainingto four seg ments of a railroad rig ht-of-way

in North Carolina over which Norfolk Southern Railroad Company (“Norfolk Southern”) formerly operated its railroad. These four seg ments are situated between milepost SB 144.55 and milepost SB 154.59, between milepost SB 158.10 and milepost SB 160.00, between milepost SF 384.6 and milepost SF 407.4, and between milepost SB 144.55 and milepost SB 141.35.

Three day s after the B o ard issued the NI TU, four individuals–Otis Mull Meacham, Montrose Meacham B allard, Charles J r. Shivers, and Rhonda K. Shivers–filed suit in this court alleg ing that the NI TU effected a taking under the F ifth Amendment for which they were not paid just compensation. The case was captioned Meacham v. United States, No. 15-843L . An amended complaint was filed the following month; several plaintiffs were added to the suit and the caption of the case chang ed to B rooks v. United States, No. 15-843L

. I n November 2015, as publiciz ed in an article appearing in the local newspaper, the attorney representing the plaintiffs in B rooks held two town hall meeting s to ex plain the suit to potentially affected residents. A second article, published two day s later, included the attorney ’s website address for those who

-2-wanted additional information reg arding the suit. Eventually , on F ebruary 9, 2016, a second

amended complaint was filed in B rooks that named 151 plaintiffs.

I n the meantime, on November 2, 2015, four individuals filed the instant suit, on behalf of themselves and other similarly situated individuals, contending that the Aug ust 4, 2015 NI TU effected a taking

of their property for which they were not paid just compensation in violation of the F ifth Amendment. F o urteen additional plaintiffs were named in a F ebruary 23, 2016 amended complaint and two additional plaintiffs were named in a May 19, 2016 second amended complaint. 2 I n their second amended complaint, plaintiffs alleg e that Norfolk Southern owned an easement for railroad purposes underly ing the four seg ments of the railroad rig ht-of-way covered by the NI T U; claim that Norfolk Southern’s easement lay across their property ; and identify the specific parcels of land encumbered by the purported easement, each of which is located in Cleveland County , North Carolina. In addition, plaintiffs’ attorney asserts via affidavit that Norfolk Southern acquired its easement via condemnation, prescription, and rig h t-of-way deeds, and that the deeds “are all of the same ty p e and have the same or very similar operative lang uag e.” Pls.’ Ex . A ¶ 16.

Plaintiffs now move to certify the case as a class action pursuant to Rule 23 of the Rules of the United States Court of F ederal Claims (“RCF C”), definingthe proposed class as:

All persons who on Augu st 4, 2015, owned an interest in lands constituting part of the railroad corridor or rig h t-of-way on which a rail line was formerly operated by Norfolk Southern Railway Company (NSR), from milepost SB 144.55 to milepost SB 154.50 and from milepost SB 158.10 to milepost [ SB ] 160.00, in Cleveland County , North Carolina, and who claim a taking of their rig hts to possession, control and enjoy

ment of such lands due to the operation of the “rail banking ” provisions of the National Trails Sy stem Act (“NTSA”), 16 U.S.C. § 1247(d). Ex cluded from this Class are the owners of land that abut seg ments of the subject rig ht-of-way

that the railroad acquired fee simple to; railroad companies and their successors in interest; [ and] persons who have elected to pursue their claims in separate lawsuits ag ainst the United States for compensation for the same interests in land.

Pls.’ Mot. 1. The parties have fully briefed the motion and the court deems oral arg ument unnecessary

.

2 The twenty

named plaintiffs in the second amended complaint are Douglas G. B rown, Mary L o uise Kelley , Russell Keith, Dara Champion, J a ne B illedeaux , Hamrick S R Heirs et al., Susan B ax ter King , L inda Kirby O wensby , Tomjack Investments L L C, W ake Chapel Properties L L C, Knalda W rig h t, Doris B

. B ettis, Gene B ettis F amily Trust, Evely

n K. W allace Clark, Shirley K. Clark, Carl R. Porter, Kathern C. Porter, Tube Enterprises, I nc., Charles W . Tull Revocable Trust, and J oseph M. W ebb.

-3-II. DISCUSSION

RCF C 23 describes the requirements for maintaining a class action in the United States Court of F ederal Claims (“Court of F ederal Claims”):

(a) Prerequisites. One or more members of a class may sue as representative parties on behalf of all members 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 ty pical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

(b) Class Actions Maintainable. A class action may be maintained if RCF C 23(a) is satisfied and if: (1) [ not used] ; (2) the United States has acted or refused to act on g rounds g enerally applicable to the class; and (3) the court finds that the questions of law or fact common to class members predominate over any

questions affecting

only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy . The matters pertinent to these finding s include: (A) the class members’ interests in individually controlling the prosecution of separate actions; (B ) the ex tent and nature of any litig ation concerning the controversy already beg un by class members; (C) [ not used] ; and (D) the likely

difficulties in manag ing a class action.

RCF C 23(a)-(b) (alterations in orig inal). I

n other words, a putative class representative must demonstrate: (i) numerosity –that the proposed class is so larg e that joinder is impracticable; (ii) commonality

–that there are common questions of law or fact that predominate over questions affecting individual prospective class members and that the g overnment has treated the prospective class members similarly ; (iii) ty picality –that his or her claims are ty pical of the proposed class; (iv) adequacy –that he or she will fairly represent the proposed class; and (v) superiority

–that a class action is the fairest and most efficient method of resolving the suit. Toscano v. United States, 98 F ed. Cl. 152, 155 (2011); B arnes v. United States, 68 F ed. Cl. 492, 494 (2005). The class action’s proponent must satisfy each of the requirements by a preponderance of the evidence. Messner v. Northshore Univ. HealthSy s., 669 F .3d 802, 811 (7th Cir. 2012) (citing Teamsters L o cal 445 F reig ht Div. Pension F und v. B ombardier I nc., 546 F .3d 196, 202 (2d Cir. 2008)); see also W al-Mart Stores, I nc. v. Dukes, 564 U.S. 338, 350 (2011) (“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively

demonstrate his compliance with the Rule–that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”).

-4-Moreover, “[ t] hese requirements are in the conjunctive; hence, a failure to satisfy any one of them is fatal to class certification.” B arnes, 68 F ed. Cl. at 494. The court may certify a class only if, “after a rig orous analy sis,” it finds that the requirements of RCF C 23 have been met. Gen. Tel. Co. of the Sw. v. F alcon, 457 U.S. 147, 161 (1982).

Plaintiffs contend that they have satisfied all of the requirements of RCF C 23, while defendant asserts that plaintiffs have not satisfied the numerosity , commonality , ty

p icality , and superiority

requirements. As ex plained below, the court concludes that the proposed class fails to completely

satisfy any of the rule’s requirements.

A. Num erosity

To prevail on their motion to certify a class action, plaintiffs must first satisfy the numerosity

requirement. RCF C 23(a)(1) specifies that a class action is appropriate only if “the class is so numerous that joinder of all members is impracticable[ .] ” “‘I mpracticable does not mean impossible.’” J ay

nes v. United States, 69 F ed. Cl. 450, 454 (2006) (quoting Robidoux v. Celani, 987 F .2d 931, 935 (2d Cir. 1993)); see also F auverg ue v. United States, 86 F ed. Cl. 82, 96 (2009) (“The ability

to use joinder does not preclude certification.”), rev’d on other g rounds sub nom. B rig ht v. United States, 603 F .3d 1273 (F ed. Cir. 2010). Rather, a putative class representative need only

establish that “‘it is ex tremely difficult or inconvenient to join all the members of the class.’” J a y nes, 69 F ed. Cl. at 454 (quoting 7A Charles Alan W rig ht et al., F ederal Practice and Procedure § 1762 (3d ed. 2005) (“W rig ht 2005”)). A court must ex amine the facts of the case to determine whether the numerosity requirement has been satisfied. Gen. Tel. Co. of the Nw., I

nc. v. EEOC, 446 U.S. 318, 330 (1980). I n particular, a court should consider the number of potential class members, the g eog raphic dispersal of the potential class members, and the siz e of each potential class member’s claim. King v. United States, 84 F ed. Cl. 120, 123-24 (2008); accord J ay nes, 69 F ed. Cl. at 454; 5 J ames W m. Moore et al., Moore’s F ederal Practice ¶ 23.22[ 1] [ b] (3d ed. 2012); 7A Charles Alan Wrig ht et al., F ederal Practice and Procedure § 1762 (3d ed. 2016) (“W rig ht 2016”).

The number of potential class members is considered to be the most important factor of the numerosity

requirement. King , 84 F ed. Cl. at 124; F auverg ue, 86 F ed. Cl. at 96. Plaintiffs represent that based on a search of the records maintained by the Cleveland County Tax Administration Department, the proposed class includes 156 potential claimants. Rely ing on a statement in King that a proposed class of forty or more members is g enerally sufficient to satisfy the numerosity

requirement, see 84 F ed. Cl. at 124, plaintiffs arg ue that a proposed class of 156 members is larg e enoug h to presumptively render joinder impracticable. Defendant counters that plaintiffs ig nore the fact that in B rooks, another Rails-to-Trails case pending before the court pertaining to the same railroad rig ht-of-way and the same NI TU, 151 claimants are proceeding throug h joinder, and not by a class action. The similarity in the number of plaintiffs in B rooks and the number of potential class members in this case, defendant contends, establishes that joinder is not impracticable in this case. I n rebuttal, plaintiffs assert that the fact that only 151 of the 307 potential claimants joined the B rooks suit, even after the publicity g e nerated by the town hall meeting s and the newspaper articles, demonstrates that join der is impracticable. Plaintiffs

-5-further arg ue that there have been several instances in this court in which a class action, a joinder suit, and individual suits relating to the same NI TU have coex isted without difficulty

. Defendant’s contentions are more persuasive. I t defies common sense to contend, as plaintiffs do, that it is impracticable for 156 claimants to proceed throug hjoinder when, in a case involving the same railroad rig ht-of-way and the same NI TU, 151 claimants are, in fact, proceeding

throug hjoinder. I ndeed, the fact that there are 151 plaintiffs in B rooks demonstrates that a 156-member class is not larg e enoug h to create a presumption that joinder is impracticable. 3 Additionally , the failure of all 307 potential claimants to join the B rooks suit reflects only

that some potential claimants did not want to pursue a claim; the failure has no bearing on whether joinder is impracticable. F urther, althoug h plaintiffs are correct that class actions and joinder suits reg arding the same railroad rig ht-of-way and NI TU have coex isted in this court on prior occasions, they ig nore the salient fact that in all of the ex amples they cited, the class action was filed first; there was no preex isting joinder suit that mig ht demonstrate that proceeding

by joinder was practicable. 4 I n short, plaintiffs have failed to demonstrate that the

3 Even had B rooks not been filed, the court would decline plaintiffs’ invitation to establish a minimum number of proposed class members that would presumptively render joinder impracticable. Accord B ell v. United States, 123 F ed. Cl. 390, 397 (2015); Sing leton v. United States, 92 F ed. Cl. 78, 83 (2010); J ay nes, 69 F e d. Cl. at 454. The court notes, however, that the number of potential class members identified by plaintiffs–156–has been considered to be sufficient to weigh in favor of satisfy ing the numerosity

requirement in other Rails-to-Trails cases. See, e.g ., Geneva Rock Prods., I nc. v. United States, 100 F e d. Cl. 778, 788 (2011) (“[ T] he putative class comprises approx imately 23 members . . . . Thoug h this number is at the smaller end of the spectrum, it is still within the acceptable bounds for class certification.”); Doug las R. B ig elow Tr. v. United States, 97 F ed. Cl. 674, 676-77 & n.5 (2011) (concluding that a proposed class that included twenty

- f ive members satisfied the numerosity requirement and noting

that, in other Rails-to-Trails cases, the g overnment had stipulated to the certification of class actions with thirty -three, forty-eig ht, and forty -four class members); Sing leton, 92 F ed. Cl. at 84 (“[ J ] oinder of the estimated 135 potential claimants would entail a sufficient deg ree of ex tra difficulty

and/or

ex p ense that makes it ‘impracticable.’”); F auverg ue, 86 F ed. Cl. at 98 (concludingthat joinder was impracticable with a proposed class of 150 property owners); King , 84 F ed. Cl. at 124 (“The actual number of members of the class already identified, 152, . . . is likely sufficient to satisfy the numerosity

prong by itself.”).

4 Plaintiffs’ first ex ample of coex isting suits is Raulerson v. United States, No. 10-193L
, and I ng ram v. United States, No. 10-463L

. Raulerson was filed as a class action on March 31, 2010, and I ng ram, the joinder suit, was filed on J uly 19, 2010. Plaintiffs’ second ex ample is B r idg eman v. United States, No. 11-548L
, W illiams v. United States, No. 15-416L , and McClelland v. United States, No. 15-508L . B ridg eman was filed as a class action on Aug ust 30, 2011, W illiams, the first joinder su it, was filed on April 24, 2015, and McClelland, the second joinder suit, was filed on May 18, 2015. Plaintiffs’ third ex ample is F inch v. United States, No. 12-92L
, and Carpenter v. United States, No. 15-415L

. F inch was filed as a class action on F ebruary 9, 2012, and Carpenter, the joinder suit, was filed on April 24, 2015. Plaintiffs’ final

-6-number of members in their proposed class is a factor that weig hs in their favor. Althoug h the number of potential class members is the most important factor in the numerosity inquiry , the
court ex amines other relevant factors–the g eog raphic dispersal of the potential class members and the siz e of each potential class member’s claim–to ascertain whether plaintiffs have made a showing that can overcome this significant deficiency

.

I t is well settled that joinder is less practicable when potential class members are dispersed g eog raphically

. Geneva Rock Prods., I nc., 100 F ed. Cl. at 787; King , 84 F e d. Cl. at 124-25. Plaintiffs aver that potential class members are located in nine states, 5 and contend that such a g e og raphic distribution supports the satisfaction of the numerosity requirement. Defendant responds that the g eog r aphic distribution of potential class members has little relevance in a Rails-to-Trails case because the facts required to dispose of such a case relate to the property

at issue rather than the owners of that property . Plaintiffs, in their reply , recogniz e that the g eog raphic distribution of potential class members is not a sig nificant factor in the numerosity

inquiry
, but emphasiz e that a nine-state distribution is sufficient to tip the scale in their favor. The court ag

rees with plaintiffs; althoug h the g e og raphic distribution of potential class members is not a heavily w eig h ted factor, the fact that the potential class members identified by

plaintiffs reside in nine states does tilt the factor, albeit slig htly , in their favor. Accord Geneva Rock Prods., I nc., 100 F ed. Cl. at 788 (finding the numerosity requirement satisfied even thoug h “the putative class members reside[ d ] in relatively close prox imity to one another”); Hag g art v. United States, 89 F ed. Cl. 523, 531-32 (2009) (“[ G eog r aphic prox imity ] has been taken into account in such vary ing way s that it does not often contribute to a particular result. . . . However, the close g eog raphic prox imity of potential class members does not by itself preclude class certification.”).

“The practical implications of class-member g eog raphical distribution also require consideration of a number of the factors applicable to numerosity : the facility of servingprocess, the ease of identification, the ease of ascertaining addresses, and the distance between their residences are all fact-specific inquiries that influence the impracticality of joinder.” F auverg

u e, 86 F ed. Cl. at 97. Plaintiffs aver that they have identified 156 potential class members and their addresses. Given this averment, defendant remarks that plaintiffs fail to ex plain why certification of a class is a better option than simply inviting these already

-identified potential class members to join the suit. Althoug hdefendant correctly sug g ests that plaintiffs’ identification of potential class members and their addresses mig ht make joinder more practicable because plaintiffs could

ex ample is Hag g art v. United States, No. 09-103L , and Smith v. United States, No. 14-387L

. Hag g art was filed as a class action on F ebruary 19, 2009, and Smith, the joinder suit, was filed on May 6, 2014.

5 F or this averment, plaintiffs rely on a spreadsheet submitted with their motion to certify a class action identify

ing all potential class members. That spreadsheet, however, only contains the potential class members’ street addresses, and not the associated cities and states. Nevertheless, the court accepts plaintiffs’ averment as true, especially g iven defendant’s failure to challeng e it.

-7-easily

contact the potential claimants reg arding joining the suit, cf. J ay nes, 69 F ed. Cl. at 455, plaintiffs’ possession of such information does not preclude the certification of a class action, see Houser v. United States, 114 F ed. Cl. 576, 578-79 (2014). Rather, plaintiffs’ possession of this information “merely

means that assembling a class and communicating with its members will be relatively easy . . . .” I d. at 578; accord id. at 579 (“The g reater the ease of soliciting opt-ins [ and] communicating with the class, . . . the easier it will be to manag e the class.”).

A third factor that bears on the numerosity inquiry is the siz e of the prospective class members’ individual claims, because in circumstances where there are numerous prospective claimants with small claims, a class action allows those individuals to pursue their claims without incurring litig a tion costs that would overwhelm their potential recoveries. Geneva Rock Prods., I nc., 100 F ed. Cl. at 787; King , 84 F ed. Cl. at 125; see also 5 Moore et al., supra, ¶ 23.22[ 1] [e] (“Numerosity may b e satisfied, on the basis that joinder is likely to be impracticable, if individual class members lack the ability or the motivation to institute individual actions. F or ex ample, if each class members’ individual claim involves only a small amount of damag es, each class member would be unlikely to file a separate action.”); 7A W rig ht 2016, supra, § 1762 (“A variety of factors, including . . . the siz e of the individual claims, . . .
may contribute to the court’s decision under Rule 23(a)(1) in a g iven case.” (footnote omitted)); cf. Amchem Prods., I

nc. v. W indsor, 521 U.S. 591, 617 (1997) (noting that althoug h class certification is not prohibited when numerous potential class members have larg e claims, the current class action scheme is aimed at vindicating the rig hts of individuals with small claims). Plaintiffs assert that some of the potential class members possess claims that “are fairly small relative to the cost necessary to present those claims individually ” because they own small parcels of land that are “encumbered by the easement a few hundred feet (or fewer) in leng th.” Pls.’ Mem. 6. Defendant, in turn, arg ues that the siz e of the individual claims is irrelevant because reg ardless of whether this case proceeds as a class action or throug h joinder, all potential claimants will be required to take an affirmative step to participate in the litig ation. And, defendant contends, plaintiffs have not ex plained why

a claimant with a small claim would choose to opt into a class action but not join the suit as a plaintiff. 6 I n response, plaintiffs contend that the court in King specifically

found the opposite of defendant’s contention–that “[ t] he smaller the siz e of the claim and the larg er the number of persons, the less likely it is that,

6 Defendant advances two additional related arg uments. F irst, defendant contends that plaintiffs have not ex plained why the 156 potential class members they identified would opt into a class action after declining to join the B rooks suit as plaintiffs. I n response, plaintiffs arg ue that it is not their burden to establish why potential claimants would opt into a class action after declining to join the B rooks suit. Plaintiffs are correct; they are not required to ex

plain the motivations of potential class members. Defendant also arg ues that information from other cases certified as class actions indicates that it is unlikely that all 156 potential class members identified by

plaintiffs would choose to participate in a class action. However, defendant cites no precedent for its proposition that the court should disreg ard the siz e of the proposed class and instead consider how many potential class members would actually opt into the class. I ndeed,
any efforts by

the court to ascertain the ultimate siz e of a class would be nothing more than pure speculation.

-8-without the benefit of a class action, any plaintiff will recover.” 84 F ed. Cl. at 120 (citing B a rnes, 68 F ed. Cl. at 499-500).

Plaintiffs have not established that the siz e of the potential class members’ claims in this case render joinder impracticable. F irst, as defendant notes, plaintiffs do not articulate any reason why

a claimant with a small claim would, as a g e neral proposition, choose to opt into a class action but not join a suit as a plaintiff. Specifically , plaintiffs do not ex plain why a potential claimant would realiz e a smaller recovery by joining an ex isting suit as a plaintiff than the potential claimant would realiz e by becoming a member of a class. Second, plaintiffs do not indicate how the siz e of the claims of the 156 potential class members in this case are any different from the siz e of the claims of the 151 claimants who joined the B rooks suit as plaintiffs. I f, as is likely , some of the plaintiffs in B rooks have small claims, then their decision to join the B r ooks suit sug g ests that the siz e of their claims was not a deterrent.

I n sum, plaintiffs have not established that the number of members in their proposed class is so larg e that joinder is impracticable. Nor have plaintiffs made a sufficient showing on the less important factors–the g eog raphic dispersal of the potential class members and the siz e of each potential class member’s claim–that would enable them to demonstrate that joinder is impracticable. According ly , plaintiffs have not satisfied the numerosity requirement of RCF C 23(a)(1). This failure is fatal to plaintiffs’ motion. Nevertheless, for the sake of completeness, the court will address plaintiffs’ satisfaction of the remaining requirements of RCF C 23.

B. Com m o nality

The nex t requirement, commonality , comprises three separate inquiries. F irst, are there factual or leg al issues common to the proposed class? RCF C 23(a)(2). Second, do these common issues predominate over issues that are not common to the proposed class? RCF C 23(b)(3). And third, has the g overnment acted or refused to act on g rounds applicable to the entire proposed class? RCF C 23(b)(2). I n analy z ing whether the commonality r e quirement has been satisfied, “the court must, where necessary
, look bey ond the pleading s, and seek to develop an understanding

of the relevant claims, defenses, facts and substantive law.” B arnes, 68 F ed. Cl. at 494; accord W al-Mart Stores, I nc., 564 U.S. at 350-52.

1. Com m on Issues

To establish the ex istence of a common factual or leg al issue, plaintiffs must demonstrate that the claims of the potential class members “depend upon a common contention” that “is capable of classwide resolution[ .] ” W al-Mart Stores, I nc., 564 U.S. at 350; see also King , 84 F ed. Cl. at 126 (ag reeing that “‘commonality is satisfied where the lawsuit challeng es a sy stem-wide practice or policy that affects all of the putative class members.’” (quoting Armstrong v. Davis, 275 F .3d 849, 868 (9th Cir. 2001))); B arnes, 68 F ed. Cl. at 496 (“[ T ] he questions underlying the claims of the class merely must share essential characteristics, so that their resolution will advance the overall case.”). A common contention can be resolved for the entire class if the “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” W al-Mart Stores, I nc., 564 U.S. at 350; accord

-9-id. (“‘W hat matters to class certification . . . is not the raising of common “questions”–even in droves–but, rather the capacity of a classwide proceeding to g enerate common answers apt to drive the resolution of the litig ation. Dissimilarities within the proposed class are what have the potential to impede the g eneration of common answers.’” (quoting Richard A. Nag areda, Class Certification in the Ag e of Ag g reg ate Proof, 84 N.Y.U. L . Rev. 97, 131-32 (2009))); Ty son F oods, I nc. v. B ouaphakeo, 136 S. Ct. 1036, 1045 (2016) (“[ A] common question is one where ‘the same evidence will suffice for each member to make a prima facie showing [ or] the issue is susceptible to g eneraliz ed, class-wide proof.’” (quoting 2 W illiam B . Rubenstein, Newberg on Class Actions § 4:50, at 196-97 (5th ed. 2012)). Only one sig nificant common contention capable of classwide resolution is necessary to satisfy the common-issue requirement. See B a rnes, 68 F ed. Cl. at 496 n.6.

I n this case, plaintiffs assert in their opening memorandum that there is a leg a l issue common to all potential members of the class: Did the B oard’s issuance of the NI TU on Aug u st 4, 2015, constitute a taking of the potential class members’ property interests without the
pay ment of just compensationin violation of the F ifth Amendment? 7 Defendant acknowledg es the ex istence of a common leg al question, but, relying on the decision of the United States Supreme Court (“Supreme Court”) in W a l-Mart Stores, Inc., arg ues that plaintiffs cannot demonstrate that there is a common answer to this question applicable to all potential class members because “the question of whether a taking has occurred for each property turns on a series of individualiz ed, fact-specific and property -specific inquiries, requiring the Court and the parties to assess each individual property claim to confirm whether a taking occurred for each parcel.” 8 Def.’s Resp. 10-11. I n other words, defendant contends that the common leg al issue is not capable of classwide resolution. Plaintiffs, in their reply , argue that W al-Mart Stores, I nc. did not alter the standard for assessing the common-issue requirement. I n addition, plaintiffs identify five issues common to their proposed class (four more than they identified in their opening memorandum):

The common questions of law and fact are (1) whether the NI TU applies to the seg ment of the easement at issue in this case, (2) whether that NI TU caused a taking of plaintiffs’ property interest, and (3) whether, under North Carolina

7 Plaintiffs further contend in their opening memorandum that all facts arising f rom the issuance of the NI TU are common to all potential class members. W hile this contention may

be accurate, it is of no moment. I t is a common factual issue, not a common fact, that will satisfy the common-issue requirement of RCF C 23(a)(2).

8 Defendant advances this arg ument in the portion of its response devoted to the predominance requirement. However, as the Supreme Court ex plained in W al-Mart Stores, I nc., its “focus on the dissimilarities between the putative class members” was “not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to determine (as Rule 23(a)(2) requires) whether there is ‘[ e ] ven a sing le [ common] question.’” 564 U.S. at 359 (quoting Richard A. Nag areda, The Preex istence Principle and the Structure of the Class Action, 103 Colum. L . Rev. 149, 176 n.110 (2003)).

- 10-property law, plaintiffs owned the fee interest underly ing the railroad easement. . . . [ (4) T] he factual question, i.e., the terms of the easement deeds, is common to the entire class. [ (5)] W hether the terms of the deeds created an easement under North Carolina law is likewise a . . . common question. 9

Pls.’ Reply

7 (footnote added).

Plaintiffs’ contention that W al-Mart Stores, I nc. had no effect on how courts assess the common-issue requirement is unavailing . Decisions of the Supreme Court are binding on the Court of F ederal Claims, F CC v. Pottsville B r oad. Co., 309 U.S. 134, 140 (1940), and the Supreme Court in W al-Mart Stores, I nc. clearly

states that a common contention must be capable of being resolved on a classwide basis, 564 U.S. at 350. The court recog niz es that the facts of W a l-Mart Stores, Inc. differ significantly from those in this case. However, the Supreme Court’s

ex p lanation reg arding what a putative class representative must demonstrate to satisfy the common-issue requirement was not dependent upon the underly ing facts of the case before it. See id. at 349-50. I

ndeed, it is well established that the Supreme Court in W a l-Mart Stores, Inc. made it more difficult for all class action proponents to satisfy the common-issue requirement. See, e.g ., B rown v. Nucor Corp., 785 F .3d 895, 903 (4th Cir. 2015) (noting “W al-Mart’s heig htened requirement of commonality ”); M.D. v. Perry , 675 F .3d 832, 839 (5th Cir. 2012) (“[ T] he W a l-Mart decision has heightened the standards for establishing commonality under Rule 23(a)(2) . . . .”); Eliz a beth Chamblee B urch, Constructing I ssue Classes, 101 Va. L . Rev. 1855, 1863-64 (2015) (“W al-Mart Stores, I nc. v. Dukes streng thened the commonality standard under Rule 23(a) . . . . After Dukes, defendants have convinced courts to scrutiniz e the plaintiffs’ commonality

vis-à-vis one another and have thereby dodg ed class certification in tox ic-tort cases, environmental-law cases, products-liability cases, breach-of-contract claims, and Truth in L ending Act claims to name but a few.” (footnotes omitted)); Christine P. B artholomew, Redefining Prey

and Predator in Class Actions, 80 B r ook. L . Rev. 743, 772 (2015) (“I n W al-Mart v. Dukes, . . . the Supreme Court heightened the [ commonality ] requirement. . . . This heig htened commonality

requirement makes class certification harder and has already resulted in certification denials . . . . According ly , the standards for class certifications are more arduous than a decade ag o . . . .” (footnotes omitted)).

The Court of F e d e r al Claims’ class certification decisions in Rails-to-Trails cases that predate W a l-Mart Stores, Inc. do not specifically address whether the identified common issue–whether the NI TU constituted a takingof the potential class members’ property interests without the pay

ment of just compensation in violation of the F ifth Amendment–was capable of classwide resolution. See, e.g ., Toscano, 98 F e d. Cl. at 155; Doug las R. B ig elow Trust, 97 F e d. Cl. at 678; Sing leton, 92 F e d . Cl. at 84; J enkins v. United States, 104 F ed. Cl. 641, 644 (2009); Hag g art, 89 F ed. Cl. at 533; F auverg ue, 86 F ed. Cl. at 99. According ly , they lack persuasive value on this issue. Thus, the court turns its attention to more recent decisions.

9 L ike defendant, plaintiffs erroneously address the common-issue requirement in the portion of their reply

dedicated to the predominance requirement.

- 11-A review of post-W al-Mart Stores, I nc. class certification decisions in federal courts reveals only

three decisions that address the common-issue requirement in a F ifth Amendment taking s contex t. All three decisions were issued by the Court of F ederal Claims, and only one of those decisions was in a Rails-to-Trails case. I n the Rails-to-Trails decision, the court held that the common leg al issue was “whether the NI TU issued on December 31, 2002 effected a taking of the class members’ property .” Geneva Rock Prods., I nc., 100 F ed. Cl. at 789. The court did not address whether that issue was capable of classwide resolution. However, the court identified several subissues–“central leg a l questions”–that were capable of resolution using
g eneraliz ed proof. I d. One of those questions was whether the railroad acquired the rail line via “a sing le g rant pursuant to a federal statute in 1875,” as the plaintiff apparently alleg ed. I d. B e cause no individualiz ed inquiries were required to answer that question, it is clear that it was, under the standard set forth in W a l-Mart Stores, Inc., capable of classwide resolution. Thus, it was not necessary

for the court to address whether the overarching common question–whether the NI TU effected a taking –could be resolved on a classwide basis.

The other two class certification decisions are equally unhelpful to plaintiffs. I n Starr I nternational Co. v. United States, the plaintiff proposed two classes, one related to a credit
ag reement and one related to a reverse stock split. 109 F ed. Cl. 628, 631-32 (2013). The court identified a core leg al question for each proposed class: whether the credit ag r eement/reverse stock split constituted a taking without the pay ment of just compensation or an illeg al ex action. I d. at 633-34. The court then concluded that the resolution of the core leg al issue for each proposed class would affect all prospective members of that class and would require only
g eneraliz ed proof. I d. I n short, because no individualiz ed proof was necessary to establish a F ifth Amendment taking or illeg al ex action, it is unquestionable that the core leg al questions could be resolved on a classwide basis.

I n B ell v. United States, the parties agreed that plaintiffs’ property was encumbered by easements owned by

the g o vernment that allowed for the construction, operation, and maintenance of levees for flood control purposes. 123 F e d. Cl. at 393-94. I n seeking to certify the case as a class action, the plaintiffs identified a common question of law: whether a structure erected by

the g overnment on their property ex ceeded the scope of the ex isting flood control easements and therefore constituted a taking of their property

interests without the pay ment of just compensation in violation of the F ifth Amendment. I d. at 400. The court did not specifically

assess whether the common leg al issue identified by the plaintiffs was capable of classwide resolution. However, there can be no dispute that whether the g overnment ex ceeded the scope of ex isting flood control easements by erecting a structure on the potential class members’ property

can be resolved either affirmatively or neg atively

for the putative class as a whole.

I n contrast, the primary common leg al issue identified by plaintiffs in this case–whether the B oard’s issuance of the NI T U on Aug ust 4, 2015, constituted a taking of the potential class members’ property

interests without the pay ment of just compensation in violation of the F ifth Amendment–cannot be resolved for the proposed class as a whole. The NI TU only effects a F ifth Amendment taking if, among other prerequisites, Norfolk Southern possessed an easement and the scope of the easement was limited to railroad purposes. See L a dd v. United States, 630

- 12-F .3d 1015, 1019 (F ed. Cir. 2010) (noting that in Trails Act cases, a taking occurs when “g overnment action destroy s state-defined property rig hts by convertinga railway

easement to a recreational trail, if trail use is outside the scope of the original railway easement”). However, because Norfolk Southern acquired its property interests in the railroad rig h t-of-way throug h condemnation, prescription, and various deeds, it is not possible to ascertain whether Norfolk Southern acquired an easement–or the scope of any such easement–in one fell swoop as required by W a l-Mart Stores, Inc. Rather, an ex amination of each of the deeds and other documents relied upon by

plaintiffs is necessary . Such an ex amination may reveal that Norfolk Southern owns both fee simple estates and easements in the railroad rig h t-of-way , and that the easements acquired by

Norfolk Southern, if any , are of vary ing scopes. 1 0 According ly , the answer to the primary common question identified by plaintiffs mig ht be “y es” for some potential class members and “no” for other potential class members. The question therefore cannot be resolved on a classwide basis.

The other four issues described by plaintiffs in their reply

– “whether the NI TU applies to the seg ment of the easement at issue in this case”; “whether, under North Carolina property law, plaintiffs owned the fee interest underly ing the railroad easement”; “the terms of the easement deeds”; and “[ w ] hether the terms of the deeds created an easement under North Carolina law”–also cannot be used to satisfy the common-issue requirement. The first two issues are common to the proposed class only if the deeds and documents that established the railroad rightof-way created an easement. Althoug h plaintiffs contend that all of the deeds contain “the same or similar operative lang

u ag e ” creating

an easement, Pls.’ Reply 7, they h ave not, as noted above, established that contention by sufficient evidence. This failure of proof also affects the remaining two issues described by plaintiffs; those issues cannot be resolved on a classwide basis unless the deeds contain sufficiently similar lang uag e.

I n short, plaintiffs have not identified a common contention that can be resolved on a classwide basis, and therefore have not satisfied the common-issue requirement of RCF C 23(a)(2).

1 0 Along with their motion to certify a class action, plaintiffs submitted an affidavit from their attorney

attesting that Norfolk Southern acquired an easement via condemnation, prescription, and right-of-way deeds, and that the deeds “are all of the same ty pe and have the
same or very

similar operative lang

u ag e.” Pls.’ Ex

. A ¶ 16. Plaintiffs also submitted copies of the deeds; however, many of the deeds are barely leg ible or not leg ible at all (most are handwritten, and some of the copies are of poor quality ) . Thus, the court is unable to verify plaintiffs’ attorney ’s broad representation that all of the deeds are of the same ty pe and contain similar operative lang

uag e. Moreover, plaintiffs’ attorney made no representations concerning the scope of the purported easements acquired by Norfolk Southern via condemnation, prescription, and deed. And, due to the leg ibility issues, the court could not determine whether the deeds, assumingthat they convey ed an easement, limited the scope of the easement to railroad purposes.

- 13-2. P redom inance

I n addition to determining whether plaintiffs have established the ex istence of common factual or leg al issues, the court must determine whether those issues predominate over issues that are not common to the proposed class. This predominance inquiry “tests whether proposed classes are sufficiently

cohesive to warrant adjudication by representation” and “is far more demanding ” than the initial common-issue inquiry . Amchem Prods., Inc., 521 U.S. at 623-24; accord Comcast Corp. v. B ehrend, 133 S. Ct. 1426, 1432 (2013). Common issues–those in which the same evidence could be used by each member of the class to make a prima facie showing

– predominate over individual issues–those in which each member of the class must present individualiz ed evidence to make a prima facie showing –if they “‘are more substantial than the issues subject only to individualiz ed proof.’” J ay nes, 69 F ed. Cl. at 457 (quoting Moore v. Pay neW ebber, I

nc., 306 F .3d 1247, 1252 (2d Cir. 2002)); accord Ty son F oods, I nc., 136 S. Ct. at 1045; Geneva Rock Prods., I nc., 100 F ed. Cl. at 789.

Plaintiffs contend that they satisfy the predominance requirement because the central leg al question applicable to all potential class members–whether the B o ard’s issuance of the NI TU on Aug ust 4, 2015, constituted a taking of the potential class members’ property interests without the pay

ment of just compensation in violation of the F ifth Amendment–predominates
over any individual issues, such as the amount of compensation to which each potential class member mig ht be entitled. Plaintiffs emphasiz e that there are “few factual differences” among the potential class members because the deeds that convey e d the property

interests to create the railroad rig ht-of-way

contain similar lang uag e, and because all potential class members own property along the same “stretch of land.” Pls.’ Mem. 8. I n response, defendant asserts that individual issues–(1) whether Norfolk Southern owned an easement, (2) the scope of any easement, (3) whether the potential class members owned property encumbered by

an easement owned by Norfolk Southern on the date that the B oard issued the NI TU, and (4) the amount of just compensation–predominate over the common question of whether the B oard’s issuance of the NI TU effected a taking . Plaintiffs, in turn, characteriz e the individual issues raised by defendant as issues of fact, and contend that “the factual inquiry n e eded in this particular case is actually very limited and manag eable.” Pls.’ Reply 7.

As an initial matter, plaintiffs mischaracteriz e the issues identified by defendant; some are factual in nature, but others require leg al analy sis. F or ex ample, determiningwhether a particular deed convey s an easement, and, if so, the scope of that easement, will require an examination of North Carolina law. More problematic for plaintiffs is the fact that they have not identified any issues common to the entire proposed class that can be resolved on a classwide basis. Thus, they cannot establish that common issues predominate over issues that require individual determinations, such as the issues identified by defendant.

3. Sim ilar Treatm ent

The final aspect of the commonality requirement is determining whether the g overnment has “acted or refused to act on g rounds g enerally

applicable to the class.” RCF C 23(b)(2). Plaintiffs contend, and defendant does not dispute, that the B oard’s issuance of the NI T Uis a

- 14-g overnment action g e nerally applicable to the entire proposed class. Plaintiffs are correct. See Geneva Rock Prods., I

nc., 100 F ed. Cl. at 789 (“The NI TU was a sing le act that affected all putative class members. This sing le act is the wellspring of all the putative class members’ claims.” (citations omitted)); see also L add, 630 F .3d at 1019 (“The NI TU is the g overnment action that prevents the landowners from possession of their property unencumbered by

the easement.”); Caldwell, 391 F .3d at 1233-34 (“The issuance of the NI TU is the only

g overnment action in the railbanking

process that operates to prevent abandonment of the corridor and to preclude the vesting

of state law reversionary interests in the rig ht-of-way

. ”). According ly
, plaintiffs have satisfied this aspect of the commonality requirement.

C. Typicality

The third g eneral requirement for maintaining a class action is that the claims of the proposed class representative(s) be ty pical of the claims of the other prospective class members. See RCF C 23(a)(3). I

n many way s, the ty

picality requirement is similar to the commonality requirement: “B oth serve as g u ideposts for determiningwhether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately

protected in their absence.” Gen. Tel. Co. of the Sw., 457 U.S. at 157 n.13. Nevertheless, ty

p icality and commonality

are distinct requirements. Ty picality is demonstrated “when ‘each class member’s claim arises from the same course of events, and each class member makes similar leg al arg

uments to prove the defendant’s liability

. ’” B arnes, 68 F ed. Cl. at 498 (quoting I n re Drex el B urnham L ambert Grp., I nc., 960 F .2d 285, 291 (2d Cir. 1992)). I t “may be satisfied even if some factual differences ex ist between the claims of the named representatives and the claims of the class, provided that the named representatives’ claims share the same essential characteristics as the claims of the class at larg e.” F isher v. United States, 69 F ed. Cl. 193, 200 (2006) (citingPiaz z a v. EB SCO I ndus., I n c ., 273 F .3d 1341, 1351 (11th Cir. 2001)). According ly , “[ t] he threshold requirement for ty picality is . . . not hig h.” I d.

Plaintiffs arg ue that they

have satisfied the ty

picality requirement because their claims and the claims of the proposed class are “premised on a common leg al theory of recovery ,” and because both they

and the proposed class “alleg e that they own fee simple title to lands alongthe Railroad L ine in Cleveland [ County ] , North Carolina.” Pls.’ Mem. 9. Defendant counters that plaintiffs have not met the ty picality requirement because they “have not established that the named plaintiffs have an ownership interest in the subject corridor or that the deeds for the named plaintiffs’ properties are representative or ty pical of the deeds affecting the claims of the putative class members.” Def.’s Resp. 9-10. I n response, plaintiffs arg

ue that defendant is apply ing a stricter standard for ty picality than is warranted.

Normally , plaintiffs’ contention that their claims and the claims of the proposed class are premised on the same leg al theory –that the B oard’s issuance of the NI TU on Aug ust 4, 2015, effected a taking

of their property interests without the pay ment of just compensation in violation of the F ifth Amendment–would be sufficient to satisfy the ty picality requirement. See F auverg ue, 86 F ed. Cl. at 100 (“Plaintiffs have satisfied their burden in proving ty picality under RCF C 23(a)(3). The named representatives’ claims share the same essential characteristics as

- 15-the claims of the entire putative class: all plaintiffs’ claims in the proposed class arose under the

Trails Act when the same NI TU was issued.”). However, upon review of the second amended complaint, it appears that some or all of the named plaintiffs may not have claims ty

pical of the proposed class.

As previously

noted, plaintiffs alleg e in their second amended complaint that Norfolk Southern owned an easement for railroad purposes underly ing the seg ments of a railroad right-ofway situated between milepost SB 144.55 and milepost SB 154.59, between milepost SB 158.10 and milepost SB 160.00, between milepost SF 384.6 and milepost SF 407.4, and between milepost SB 144.55 and milepost SB 141.35–the same four segments covered by the Aug ust 4, 2015 NI TU. They

further alleg e that Norfolk Southern’s easement lay across their property , and identify the specific parcels of land encumbered by that easement. However, plaintiffs did not indicate which plaintiffs owned parcels of land adjacent to which seg ment(s) of Norfolk Southern’s purported easement. 1 1 According ly , from the facts alleg ed in the second amended complaint, the court can surmise only that each plaintiff owns one or more parcels of land adjacent to one or more of the four seg ments of the purported easement.

Despite claiming that they own property adjacent to the four seg ments of the railroad rig ht-of-way

described in the NI TU, plaintiffs, in their motion to certify this case as a class action, describe the proposed class as:

All persons who on Augu st 4, 2015, owned an interest in lands constituting part of the railroad corridor or rig h t-of-way on which a rail line was formerly operated by Norfolk Southern Railway Company (NSR), from milepost SB 144.55 to milepost SB 154.50 and from milepost SB 158.10 to milepost [ SB ] 160.00, in Cleveland County , North Carolina . . . .

Pls.’ Mot. 1 (emphasis added). Ex cluded from this proposed class definition are persons who own an interest in parcels of land adjacent to the seg ments of the railroad rig

h t-of-way situated between milepost SF 384.6 and milepost SF 407.4, and between milepost SB 144.55 and milepost SB 141.35. I f any of the twenty

named plaintiffs own parcels of land that are adjacent only to these two seg ments, then they mig ht not be representative of the proposed class. As a result, any such plaintiffs mig ht not have claims that are ty pical of the claims of the potential class members. This possibility precludes plaintiffs from satisfy ing the ty picality requirement of RCF C 23(a)(3). 1 2

1 1 F or ex ample, plaintiffs alleg e that Doug las G. B r own owns parcel number 71228, but do not identify

the seg ment or seg ments of the purported easement to which parcel number 71228 is adjacent.

1 2 The court recog

niz es that the incong ruity between the alleg ations in the second amended complaint and the proposed class definition may be the result of imprecise drafting

. The August 4, 2015 NI TU, which neither party submitted with their pleading s or briefs, reflects that Norfolk Southern soug h t to (1) abandon the two seg ments situated between milepost SB

- 16-D. Adequacy

I n addition to establishing numerosity , commonality , and ty picality , a putative class representative must establish that he or she will “fairly and adequately protect the interests of the class.” RCF C 23(a)(4). There are two aspects to the adequacy requirement: the ex istence of conflicts between the putative class representative and the members of the proposed class, and the qualifications and capabilities of proposed class counsel. Amchem Prods., I nc., 521 U.S. at 625-26 & n.20; Gen. Tel. Co. of the Sw., 457 U.S. at 157 n.13.

1. Conf licts of Interest

The first component of the adequacy requirement concerns whether there are any conflicts of interest precluding

a plaintiff from serving as a class representative. See Gen. Tel. Co. of the Nw., I nc., 446 U.S. at 331. B ecause plaintiffs have not established the ex istence of common issues resolvable on a classwide basis or that their claims are ty pical of the claims of the potential class members, it is not possible to conclude that plaintiffs lack any conflicts of interest with the proposed class. See Amchem Prods., I nc., 521 U.S. at 626 n.20 (“The adequacy

- ofrepresentation requirement ‘tend[ s] to merg e’ with the commonality and ty picality criteria of Rule 23(a) . . . .”). Plaintiffs therefore have not satisfied the conflicts-of-interest requirement.

2. P roposed Class Counsel

The second component of the adequacy requirement focuses on the ex perience and competence of proposed class counsel. B efore the court can appoint class counsel, it “must consider”:

(i) the work counsel has done in identify ing or investig ating potential claims in the action; (ii) counsel’s ex p erience in handling class actions, other complex litig ation, and the ty pes of claims asserted in the action; (iii) counsel’s knowledg e of the applicable law; and (iv) the resources that counsel will commit to representing the class[ .]

144.55 and milepost SB 154.59, and between milepost SB 158.10 and milepost SB 160.00; (2) discontinue trackag e rig h ts over the seg ment situated between milepost SF 384.6 and milepost SF 407.4; and (3) discontinue service over the seg ment situated between milepost SB 144.55 and milepost SB 141.35. See Surface Transportation B oard, Decision and Notice of I nterim Trail Use or Abandonment: Norfolk Southern Railway Company –Abandonment, Discontinuance of Trackag e Rig hts and Discontinuance of Service–I n Cleveland and Rutherford Counties, N.C., and Cherokee County , S.C., https://www.stb.dot.g ov/Decisions/reading room.nsf/UNI D / 5F 817A6B 4689ED2385257E970069CE04/$file/44597.pdf (Aug . 4, 2015). I t may be the case that all of the property

owned by

plaintiffs is adjacent to the two seg ments that Norfolk Southern
soug h t to abandon (in other words, the two seg ments included in the proposed class definition). However, the court cannot to draw this conclusion based on the evidence currently before it.

- 17-RCF C 23(g )(1)(A). I n addition, it “may

consider any

other matter pertinent to counsel’s ability to fairly and adequately

represent the interests of the class[ .] ” RCF C 23(g )(1)(B ). Althoug h defendant does not challeng e the ex perience or qualifications of plaintiffs’ counsel, the court must satisfy

itself that the appointment of plaintiffs’ counsel as class counsel would be in the best interests of the proposed class. RCF C 23(g )(2).

I n an affidavit submitted with plaintiffs’ motion to certify this case as a class action, plaintiffs’ counsel describes the work he performed to identify and investig a te potential claims and his ex perience in handling Rails-to-Trails cases, including class actions. F urther, there is no dispute that plaintiffs’ counsel possesses knowledg e of the applicable law and the resources
necessary to represent the proposed class. B ased on the information before it, the court concludes that the appointment of plaintiffs’ counsel as class counsel would be in the best interests of the proposed class if the case were certified as a class action.

E. Superiority

The final requirement that plaintiffs must satisfy to maintain a class action is superiority ; in other words, a class action must be “superior to other available methods for fairly and efficiently adjudicating the controversy .” 1 3 RCF C 23(b)(3). This requirement is met if the prospective class representative establishes that “a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bring ing about other undesirable results.” F ed. R. Civ. P. 23 Advisory Committee Note (1966 Amendment), quoted in Amchem Prods., I n c., 521 U.S. at 615. Among the factors to consider in determining superiority

are (1) the potential “class members’ interests in individually

controlling the prosecution of separate actions”; (2) “the ex tent and nature of any

litig ation concerning

the controversy

already beg un by

class members”; and (3) “the likely

difficulties in manag ing a class action.” RCF C 23(b)(3). “Essentially , under this
prong of the analy sis, the court is oblig ed to conduct a cost/benefit analysis, weig hing any potential problems with the manag eability or fairness of a class action ag ainst the benefits to the
sy stem and the individual members likely to be derived from maintaining such an action.” B a rnes, 68 F ed. Cl. at 499, quoted in Geneva Rock Prods., I nc., 100 F ed. Cl. at 790; see also J ay nes, 69 F ed. Cl. at 459 (“I n making [ the superiority ] assessment, the court must consider what alternative procedures are available for disposing of the dispute and compare the possible alternatives to determine whether Rule 23 will be sufficiently effective to justify the class action approach. The superiority requirement is most clearly satisfied ‘if a comparative evaluation of other procedures reveals no other realistic possibilities.’” (citation omitted) (quoting 7AA W rig ht 2005, supra, § 1779)).

1 3 There are several other methods of adjudicating the claims of multiple individuals arising from the same course of conduct: the permissive joinder of parties under RCF C 20; the filing of a related case under RCF C 40.2; and consolidation under RCF C 42(a). Procedurally
, RCF C 20 requires a motion to amend the complaint to join new plaintiffs, while RCF C 40.2 and RCF C 42(a) require the filing of separate complaints.

- 18-Neither party specifically addresses the factors described in RCF C 23(b)(3). However, their arg uments g enerally pertain to the second and third factors. Plaintiffs arg ue that a class action is the superior method of litig ating this case because it would achieve economies of time, effort, and expense, and prevent inconsistent adjudications. Specifically, they contend that it would be more efficient for the court to hear the claims of the 156 potential class members in one suit rather than in 156 separate suits, and more efficient for the parties to conduct title research and property

appraisals in a class action. Defendant, in contrast, arg ues that litig a ting this case as a class action is not superior to proceeding throug h joinder. I t asserts that parties and the court in Rails-to-Trails cases have developed efficient methods of litig a ting suits proceedingthroug h joinder; that the notice to potential claimants required in a class action mig ht confuse those claimants who have already joined the B rooks suit; and that the evidence required for each potential class member to establish their F ifth Amendment taking s claim will be unique. I n their reply , plaintiffs assert that defendant has not identified any problem with proceeding as a class action that the court has not already addressed or manag e d in other cases.

Althoug h plaintiffs are correct that many Rails-to-Trails cases have proceeded as class actions in this court, they fail to meet their burden of proving that a class action is superior to other methods of litig ating this particular case. As an initial matter, the court has already held that plaintiffs did not demonstrate that proceeding throug h joinder would be impracticable in this case. To the contrary , the fact that the B rown suit is proceeding throug h joinder reflects that joinder is a reasonable and practicable method of adjudicating whether the B oard’s issuance of the Aug ust 4, 2015 NI TU effected a taking of property interests without the pay ment of just compensation in violation of the F ifth Amendment. Moreover, plaintiffs’ failure to identify any common issues that can be resolved on a classwide basis strong ly sug g ests that a class action is not superior to proceeding throug h joinder. F inally , there is no risk of inconsistent adjudications when proceeding throug h joinder.

I n sum, the court cannot conclude that a class action would be a superior method of litig ating this case. Rather, based on the evidence proffered by plaintiffs, proceeding

throug h joinder is at least an equally effective means of litig ating the claims of plaintiffs and the other potential claimants. According ly , plaintiffs have not established that a class action is superior to other means of litig ating this case as required by RCF C 23(b)(3).

III. CONCLUSION

As set forth above, plaintiffs have not met the requirements set forth in RCF C 23 for maintaining a class action. I n particular, they have not satisfied the numerosity , ty picality , and superiority

requirements, and they

have failed to satisfy

elements of the commonality and adequacy requirements. Each of plaintiffs’ failures is fatal to their motion to certify this case as a class action. According ly
, plaintiffs’ motion is DENIED . B y no later than F riday, June 10,

- 19-2016 , the parties shall file a joint status report containing a proposed schedule for the liability phase of this case.

IT IS SO ORDERED.

s/ Marg aret M. Sweeney MARGARET M. SW EENEY J udg e

- 20-