Rebecca Mullis attended an online program for Medical Diagnostic Sonography through Mountain State University. The program required her to attend a clinical externship to graduate, but there were no externship sites within a three-hour drive for her. So she sued the university on behalf of students like herself, whom she was sure (or her lawyers were) numbered in the hundreds.

In its opinion denying certification in Mullis v. Mountain State Univ., Inc., No. 5:12–3158, 2014 U.S. Dist. LEXIS 40686 (S.D. W. Va. Mar. 27, 2014), the court disagreed. Its primary issue was that she had not offered any real evidence to support her guesses about numerosity.

Plaintiff’s mere speculation does not meet her burden, and she has provided no meaningful evidence that refutes the evidentiary support for a much more modest estimation of the size of the proposed class. Conclusory and speculative allegations as to the size of the class are insufficient to establish numerosity.

But the court went further, conducting a true “deep dive” into the numerosity requirement. Among the counter-intuitive (but still legally sound) points the court made about numerosity:

  • Identifying every class member may mean joinder is practicable. “Having access to this contact information, as plaintiff assures the court defendant does, means that each individual can be contacted to determine their interests in the litigation, their desire or lack thereof to join a class action, or their wish to bring an individual action.”
  • Larger damages may mean joinder is practicable. “Another critical consideration affecting the practicability of joinder is the ability and willingness of individual class members to bring individual actions. Perhaps most important to this inquiry is the size of the individual claims, because “small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.” A direct corollary to this notion is that joinder is more likely practicable when individual recoveries are substantial.”

This opinion is an excellent one for defense lawyers to study. In addition to offering a primer on the numerosity requirement, it also suggests a number of less-obvious but still valid arguments against certification.