Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bartek et al. v State Dept. of Natural Resources (09/21/2001) sp-5473

Bartek et al. v State Dept. of Natural Resources (09/21/2001) sp-5473

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.


HILL, ED PAQUETTE, ANNA VON   )    Supreme Court Nos. S-9084/9263
BERT KLEINENBERG, and MARLON  )    Superior Court No.
R. WILLIAMS,                  )    3PA-98-247 CI
             Appellants/      )    O P I N I O N
             Cross-Appellees, )
                              )    [No. 5473 - September 21, 2001]
     v.                       )
             Appellee/        )
             Cross-Appellant. )

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
                    Beverly W. Cutler, Judge.

          Appearances:  Peter Gruenstein and Daniel
Hickey, Gruenstein & Hickey, Anchorage, and John H. Hinderaker and
Gerard M. Nolting, Faegre & Benson, LLP, Minneapolis, Minnesota,
for Appellants and Cross-Appellees.  William F. Morse, Robert A.K.
Doehl, and Gary M. Guarino, Assistant Attorneys General, Anchorage,
and Bruce M. Botelho, Attorney General, Juneau, and Donna M. Meyers
and Megan R. Ludwig, Delaney, Wiles, Hayes, Gerety, Ellis & Young,
Inc., Anchorage, for Appellee and Cross-Appellant.

          Before:  Fabe, Chief Justice, Matthews, and
          Carpeneti, Justices.  [Eastaugh and Bryner,
Justices, not participating.]

          FABE, Chief Justice.

          In June 1996 the Miller's Reach Fire burned over 37,000
acres in the Matanuska/Susitna Valley.  The State, Department of
Natural Resources, Division of Forestry responded to the initial
fire and took control of firefighting operations from the local
fire departments on the scene.  A group of landowners who suffered
damage to their homes and property brought suit, claiming that the
State's firefighting activities were negligently conducted.  The
superior court certified a plaintiff class.  Two motions to dismiss
were filed -- one based on an alleged lack of a duty of care, the
other based on discretionary function immunity under AS 09.50.250. 
The superior court denied the first motion and granted the second. 
The plaintiffs appeal these decisions.  The State cross-appeals on
both its first motion to dismiss and the certification of the
          This appeal is closely related to the proceedings in
Angnabooguk v. State, Department of Natural Resources, Division of
Forestry, S-9439, and our opinion in Angnabooguk resolves most of
the issues in this appeal. [Fn. 1]
          The relevant facts are identical to those that were
considered in Angnabooguk. [Fn. 2]  Both appeals concern the
Miller's Reach Fire that burned from June 2 through June 15, 1996
in the Matanuska/Susitna Valley.
          Two suits were brought in superior court by different
groups of landowner plaintiffs, alleging negligence on the part of
the State, Department of Natural Resources, Division of Forestry
(Forestry): the case at bar, Bartek, before Superior Court Judge
Beverly W. Cutler, and Angnabooguk, before Superior Court Judge
John Reese.  Plaintiffs filed this action on March 24, 1998.  On
November 5, 1998, the action was converted into a class action when
Judge Cutler certified a plaintiff class.  The certified class is
apparently large enough to contain all of the plaintiffs in
Angnabooguk.  The class was defined as:
          All owners of real and/or personal property
who have suffered tangible property damage and other legally
compensable losses as a result of the Miller's Reach fire.

          Two motions to dismiss were filed by Forestry -- the
first on the basis of an alleged lack of a duty of care, the second
on the basis that discretionary function immunity under AS
09.50.250 barred the suit.  The superior court denied the first
motion, but granted the second.  Judge Cutler issued an oral ruling
explaining her decision on February 9, 1999.
          A few months later, in the parallel Angnabooguk action,
Forestry moved to dismiss in that action under three different
theories -- the applicable statute of limitations, lack of a duty
of care, and immunity under the Alaska Tort Claims Act, AS
09.50.250.  Judge Reese dismissed the case under the immunity
theory; the order of dismissal did not mention the other two
theories.  In doing so, Judge Reese adopted Judge Cutler's February
9, 1999 oral ruling. [Fn. 3]
          This appeal requires this court to review the superior
court's grant of class certification, which is reviewed for abuse
of discretion. [Fn. 4]
          There are three issues in this appeal and cross-appeal:
(a) whether Forestry owed a duty of care to the plaintiff class;
(b) whether Forestry is immune from the plaintiffs' claims under AS
09.50.250; and (c) whether the superior court abused its discretion
by certifying the plaintiff class.  The first two questions have
already been resolved by our opinion in Angnabooguk, [Fn. 5] and we
will not revisit these issues here.  In Angnabooguk, we held that
Forestry owed the plaintiffs a duty of care, [Fn. 6] and we
reversed the dismissal of the plaintiffs' claims, because AS
09.50.250 does not immunize all claims of negligent firefighting
alleged by the plaintiffs. [Fn. 7]  Therefore, in this appeal we
need only address the issue of whether the Bartek class was
properly certified.
          Class certification is governed by Alaska Civil Rule 23,
which is patterned after Federal Rule of Civil Procedure 23. [Fn.
8]  For this reason, we have noted that federal decisions will be
"especially persuasive" in interpreting Alaska Civil Rule 23. [Fn.
          Forestry makes two general claims to support its argument
that the superior court abused its discretion by certifying the
plaintiff class: (1) the court should have held an evidentiary
hearing and allowed discovery before granting certification; and
(2) the requirements of Civil Rule 23 were not satisfied.  These
will be considered in turn.
     A.   It Was Within the Superior Court's Discretion to
Determine that No Evidentiary Hearing or Discovery Was Required
Prior to Class Certification.

          Forestry claims that an evidentiary hearing, or an
opportunity for discovery, should have been required before the
superior court certified the class.  Forestry made these claims
below as well, but the superior court granted class certification
without an evidentiary hearing or discovery on the class
certification issue.
          Forestry argues that because the superior court certified
the class without permitting discovery or holding an evidentiary
hearing, it failed to perform "the rigorous analysis the United
States Supreme Court had in mind."  However, no authority supports
the proposition that discovery or an evidentiary hearing is always
required.  Some authorities stand for the proposition that
discovery will sometimes be required, but only in particular
circumstances where a "fuller development" of the record is needed
or there is an insufficient basis for certification in the
pleadings; however, those courts do not hold that discovery or an
evidentiary hearing is required in every case. [Fn. 10]
          Similarly, the Eleventh Circuit requires an evidentiary
hearing if there is any "doubt" about certification issues;
however, this rule appears to have been applied only to benefit
plaintiffs whose request for certification had been denied without
a hearing. [Fn. 11]
          And other jurisdictions have explicitly disavowed the
evidentiary hearing requirement before class certification.  As the
Massachusetts Supreme Judicial Court noted:
          The defendants suggest that the judge abused
his discretion because he certified the class without holding an
evidentiary hearing.  Although it is within a judge's discretion to
hold an evidentiary hearing, there is no such requirement.  Here,
the motion judge reviewed the pleadings, affidavits, briefs, and
the earlier memorandum on summary judgment in light of the
requirements of [R]ule 23.  There is no indication that a reasoned
decision on the motion for class certification required anything
more.[ [Fn. 12]]

Other courts have similarly noted that a court may hold an
evidentiary hearing if it concludes that one is needed, but that
the matter is within the court's discretion. [Fn. 13]  An
evidentiary hearing or discovery may not be needed because the
plaintiffs may establish compliance with Rule 23 through the
pleadings alone; however, the plaintiffs who choose this approach
must establish a factual basis that satisfies all the requirements
of Rule 23. [Fn. 14]
          Therefore, an evidentiary hearing or discovery is not
always required before class certification; it is up to the trial
court to determine whether there are factual disputes which should
be resolved at an evidentiary hearing after discovery.  It is
within the discretion of the superior court to decide whether to
hold an evidentiary hearing or permit discovery before granting
class certification.
     B.   The Superior Court May Wish to Reconsider Whether the
Requirements of Rule 23 Are Met on Remand.

          Alaska Civil Rule 23 contains two sets of requirements
for certification, in sections (a) and (b) of that rule.  Rule
23(a) contains four separate threshold requirements
("prerequisites"), all of which must be met:
          (a)  Prerequisites to a Class Action.  One or
more members of a class may sue or be sued as representative
parties on behalf of all 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 typical of the claims or defenses of the
class, and (4) the representative parties will fairly and
adequately protect the interests of the class.

Rule 23(b) imposes additional requirements, which can be satisfied
in any one of three ways under Rule 23(b)(1), (2), or (3).  Under
Rule 23(b)(3), considered by the superior court, the court must
find that "the questions of law or fact common to the members of
the class predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for the fair and efficient adjudication of the
controversy." [Fn. 15]
          The superior court found that the Bartek class satisfied
the requirements of Rule 23(a) and 23(b)(3).  We need not review
this ruling at this time, because at the time she granted the
motion to dismiss, Judge Cutler indicated that she might be
inclined to reconsider the issue of class certification:
          [I]f the court were not taking this action
with the complaint right now, . . . the court [would] probably sua
sponte revisit the issue of class certification . . . .  [M]aybe
this case should be like one of those cases where . . . 100 or 200
people around the state all join in challenging the new breath test
for DWI or something.  Maybe we should have large joinders . . .
maybe there shouldn't be a class certification.

Because we remand this case for further proceedings, we leave it to
the superior court to reconsider the issue.  It will be up to the
trial court to determine whether further discovery or an
evidentiary hearing is required.
          We note that Forestry has raised some concerns that
should be addressed in any reconsideration of class certification. 
According to Forestry, joinder of all who have claims is not
impractical:  The claims are relatively large, and those who have
claims will have to be identified at some point in the litigation.
[Fn. 16]  Further, the size of the claims ensures that individual
claimants have an adequate incentive to pursue individual claims.
[Fn. 17]  In addition, because the plaintiffs' injuries were
sustained over the course of a two-week period, there is a
possibility that individual issues of causation, damages, and
comparative negligence may exist.  Forestry has expressed doubt as
to whether the class representatives have asserted claims that are
"typical" of the class claims, [Fn. 18] whether there are no
conflicts of interest between class members and class
representatives, [Fn. 19] and whether common issues predominate
over individual issues. [Fn. 20]  We leave these to the superior
court to address on remand.
          For the reasons stated above and in our opinion in
Angnabooguk, we AFFIRM the denial of the first motion to dismiss,
on Forestry's duty of care, and REVERSE the grant of the second
motion to dismiss, on discretionary function immunity. [Fn. 21]  We
REMAND the issue of class certification for further consideration
by the superior court.


Footnote 1:

     26 P.3d 447 (Alaska 2001).

Footnote 2:

     Id. at 449-51.

Footnote 3:

     See id. at 450-51.

Footnote 4:

     See State, Dep't of Revenue v. Andrade, 23 P.3d 58, 65 (Alaska

Footnote 5:

     26 P.3d 447 (Alaska 2001).

Footnote 6:

     Id. at 452-53.

Footnote 7:

     Id. at 453-58.

Footnote 8:

     See Nolan v. Sea Airmotive, Inc., 627 P.2d 1035, 1041 (Alaska

Footnote 9:


Footnote 10:

     See In re American Med. Sys., Inc., 75 F.3d 1069, 1079-86 (6th
Cir. 1996) ("[A finding that the requirements of federal Rule 23
are fulfilled] may be determined by the court on the basis of the
pleadings, if sufficient facts are set forth, but ordinarily the
determination should be predicated on more information than the
pleadings will provide. . . .  The parties should be afforded an
opportunity to present evidence on the maintainability of the class
action."); Chateau de Ville Prods., Inc. v. Tams-Witmark Music
Library, Inc., 586 F.2d 962, 966 (2d Cir. 1978) (vacating
certification because "the existing record [was] inadequate for
resolving the relevant issues," and in such a case, "fuller
development of the facts" was required and the parties should have
been allowed to conduct discovery) (citation omitted); Walker v.
World Tire Corp., 563 F.2d 918, 921 (8th Cir. 1977) ("The District
Court must have before it sufficient material . . . to determine
the nature of the allegations, and rule on compliance with the
Rule's requirements . . . .  Securing this material does not always
require a formal evidentiary hearing.  Where, however, the
pleadings themselves do not conclusively show whether the Rule 23
requirements are met, the parties must be afforded the opportunity
to discover and present documentary evidence on the issue.")
(internal quotation and citations omitted); In re Visa
Check/Mastermoney Antitrust Litigation, 192 F.R.D. 68, 79 (E.D.N.Y.
2000) ("In some cases, it may be possible to conduct the required
inquiry by looking no further than the pleadings, but in other
instances, the court may be required to probe behind the pleadings
before coming to rest on the certification question.  In some cases
in the latter group, it will be necessary to conduct discovery to
establish a sufficient evidentiary record from which to make the
class determination.") (citations omitted); Gross v. Medaphis
Corp., 977 F. Supp. 1463, 1475 (N.D. Ga. 1997) (summarily denying
class certification as "premature" because no "class discovery" had
been done); Alexander v. FBI, 971 F. Supp. 603, 612 (D.D.C. 1997)
(holding that discovery should be allowed to address specific
factual problems with proposed class definition -- specifically, to
enable the class to be defined in a way that "separate[s] the
noncommon issues"); Warner v. Waste Management, Inc., 521 N.E.2d
1091, 1098 n.9 (Ohio 1988) (noting, in dicta:  "We recognize a
trial court is not required to hold an evidentiary hearing for all
such cases.  It is rare, however, that the pleadings in a class
certification action will be so clear that a trial judge may find,
by a preponderance of the evidence, that certification is or is not
proper.") (citation omitted).

Footnote 11:

     In Morrison v. Booth, the Court of Appeals for the Eleventh
Circuit noted that, under its own (Fifth and Eleventh Circuit)
precedent, courts are "require[d] . . . to conduct an evidentiary
hearing on class certification when there is any doubt about the
issue, even when counsel fails to move for such a hearing."  730
F.2d 642, 643 (11th Cir. 1984).  The court also noted that if clear
grounds for denial of certification exist, then no evidentiary
hearing is required.  See id. at 644.  See also Satterwhite v. City
of Greenville, Tex., 578 F.2d 987, 993 (5th Cir. 1978) (noting that
evidentiary hearing should have been held before class
certification was denied); McGowan v. Faulkner Concrete Pipe Co.,
659 F.2d 554, 559 (5th Cir. Unit A Oct. 1981) ("[O]rdinarily an
evidentiary hearing might be required if a request were made or if
there were doubt as to the propriety of the [plaintiff's]

Footnote 12:

     Weld v. Glaxo Wellcome Inc., 746 N.E.2d 522, 527 (Mass. 2001)
(citations omitted).

Footnote 13:

     See In re Domestic Air Transp. Antitrust Litigation, 137
F.R.D. 677, 682 n.4 (N.D. Ga. 1991) (noting that "Rule 23 does not
mandate, or even suggest, that the Court conduct an evidentiary
hearing on a motion for class certification"); Ex parte First Nat'l
Bank of Jasper, 717 So. 2d 342, 346 (Ala. 1997) (declining to hold
"that a precertification evidentiary hearing is required in every
case -- or even in most cases.  As Falcon explained, the issues
[may be] plain enough from the pleadings to determine whether the
interests of the absent parties are fairly encompassed within the
named plaintiff's claim.") (citing General Tel. Co. of the
Southwest v. Falcon, 457 U.S. 147 (1982)); State ex rel. Byrd v.
Chadwick, 956 S.W.2d 369, 380 (Mo. App. 1997) (noting that "the
court can hold [an evidentiary] hearing, but . . . in its
discretion it may resolve the issue [of class certification] based
on briefs and affidavits, and other evidence submitted to it").

Footnote 14:

     See In re American Med. Sys., Inc., 75 F.3d at 1079-86 ("[A
finding that the requirements of federal Rule 23 are fulfilled] may
be determined by the court on the basis of the pleadings, if
sufficient facts are set forth, but ordinarily the determination
should be predicated on more information than the pleadings will
provide."); Martin v. Shell Oil Co., 198 F.R.D. 580, 590 (D. Conn.
2000) ("The court should accept the allegations in the complaint as
true and not conduct a preliminary inquiry into the merits of the
case.  Still, plaintiffs bear the burden of establishing each
requirement for class certification.  In doing so, they cannot rely
solely on the allegations of the complaint, but must provide
sufficient information on which the court can make a
determination.") (citations omitted); In re Jackson Nat'l Life Ins.
Co. Premium Litigation, 193 F.R.D. 505, 508 (W.D. Mich. 2000)
(placing burden of proof on the party seeking class certification);
In re Visa Check/Mastermoney Antitrust Litigation, 192 F.R.D. at 79
("In some cases, it may be possible to conduct the required inquiry
by looking no further than the pleadings, but in other instances,
the court may be required to probe behind the pleadings before
coming to rest on the certification question.").

Footnote 15:

     Alternatively, Rule 23(b) can be satisfied if either of the
requirements of Rule 23(b)(1) or (2) is met:

               (1)  The prosecution of separate actions
by or against individual members of the class would create a risk

               (A)  Inconsistent or varying
adjudications with respect to individual members of the class which
would establish incompatible standards of conduct for the party
opposing the class, or

               (B)  Adjudications with respect to
individual members of the class which would as a practical matter
be dispositive of the interests of the other members not parties to
the adjudications or substantially impair or impede their ability
to protect their interests; or

               (2)  The party opposing the class has
acted or refused to act on grounds generally applicable to the
class, thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as a

Footnote 16:

     Amenability to jurisdiction should not be an issue.  The
alleged torts were committed in the state, and the potential
claimants have minimum contacts with the state by reason of their
interest in the local property that was damaged or destroyed.

Footnote 17:

     These factors are relevant to the numerosity factor of Rule
23(a)(1) and the superiority factor of 23(b)(3).

Footnote 18:

     See Alaska R. Civ. P. 23(a)(3); Marisol A. v. Giuliani, 126
F.3d 372, 376 (2d Cir. 1997) ("Typicality . . . requires that the
claims of the class representatives be typical of those of the
class, and is satisfied when each class member's claim arises from
the same course of events, and each class member makes similar
legal arguments to prove the defendant's liability.") (internal
quotation omitted); Weil v. Long Island Savings Bank, FSB, 200
F.R.D. 164, 169 (E.D.N.Y. 2001) ("[The typicality] requirement is
satisfied if plaintiffs show that the representative plaintiff's
claims are based on the same legal theory and arise from the same
practice or course of conduct as the other class members.")
(internal quotation omitted); Weld v. Glaxo Wellcome Inc., 746
N.E.2d 522, 528-29 (Mass. 2001) ("Typicality is established when
there is a sufficient relationship . . . between the injury to the
named plaintiff and the conduct affecting the class, and the claims
of the named plaintiff and those of the class are based on the same
legal theory.") (internal quotation omitted).

Footnote 19:

     See Alaska R. Civ. P. 23(a)(4); Local Joint Executive Bd. of
Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d
1152, 1162 (9th Cir. 2001) ("Adequate representation depends on the
qualifications of counsel for the representatives, an absence of
antagonism, a sharing of interests between representatives and
absentees, and the unlikelihood that the suit is collusive.")
(internal quotations omitted); Hawker v. Consovoy, 198 F.R.D. 619,
626 (D.N.J. 2001) ("The following two-prong test determines whether
the representation has been adequate: (a) the plaintiff's attorney
must be qualified, experienced, and generally able to conduct the
proposed litigation, and (b) the plaintiff must not have interests
antagonistic to those of the class.") (internal quotations

Footnote 20:

     See Alaska R. Civ. P. 23(b)(3); Local Joint Executive Bd., 244
F.3d at 1162 ("Rule 23(b)(3) focuses on the relationship between
the common and individual issues.  When common questions present a
significant aspect of the case and they can be resolved for all
members of the class in a single adjudication, there is clear
justification for handling the dispute on a representative rather
than on an individual basis."); Begley v. Academy Life Ins. Co.,
200 F.R.D. 489, 496 (N.D. Ga. 2001) ("The Rule 23(b)(3)
predominance inquiry tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation. 
In order to determine whether common questions predominate, [the
court is] called upon to examine the cause[s] of action asserted in
the complaint on behalf of the putative class.  To qualify as a
Rule 23(b)(3) class action, 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.") (internal quotations and citations

Footnote 21:

     Because we reverse the dismissal of the plaintiffs' claims, we
need not consider the issue of whether the motion to dismiss should
have been converted into an Alaska Civil Rule 56 motion for summary
judgment, which is raised by the parties.