United States District Court, S.D. Alabama, Southern Division
ORDER
TERRY
F. MOORER, UNITED STATES DISTRICT JUDGE
Pending
before the Court is Plaintiffs' Motion for Class
Certification and Memorandum of Law in Support Thereof
(“motion to certify class”). Doc. 143, filed June
26, 2018. Plaintiff Carrie Bowens[1] (“Plaintiff” or
“Bowens”), individually and on behalf of all
others similarly situated, moves the Court, pursuant to
Fed.R.Civ.P. 23, to certify their class claims that
Defendants violated Alabama's Deceptive Trade Practices
Act (“ADTPA”), Ala. Code. §§ 8-19-1 to
19-15. Doc. 143, at 13.[2]
PROCEDURAL
BACKGROUND
On
December 16, 2016, Shamika Jones filed a Class Action
Complaint in this Court in which she brought claims against
Defendants that were based on personal injury and were
alleged to have been caused by her use of a hair coloring
product, Clairol Balsam Color that contained
p-Phenylenediamine. Doc. 1. Jones's Complaint included a
purported nationwide class and an Alabama subclass.
Id., ¶¶ 82 & 84. Subsequently filed
actions were transferred to this Court and consolidated with
this action. Docs. 27, 30, 43, & 85. Those actions
include the complaint of Bowden that was filed on February
28, 2017, in the United States District Court for the
Northern District of Alabama (Doc. 29-1); the complaint of
Bowens that was filed on March 1, 2017, in the United States
District Court for the Middle District of Alabama, Bowens
v. Coty, Inc., No. 1:17-cv-00192-MU, Doc. 20 (S.D. Ala.
May 2, 2017); the complaint of Breonna Franks that was filed
on May 25, 2017, in the United States District Court for the
Southern District of Mississippi, Franks v. Coty,
Inc., No. 1:17-cv-00321-N, Doc. 1 (S.D. Ala. May 25,
2017); and the complaint of Tara Taylor that was filed on
October 23, 2017, in the United States District Court for the
Western District of Louisiana, Taylor v. Coty, Inc.,
No. 1:18-cv-00070-WS-B, Doc. 1 (S.D. Ala. Oct. 23, 2017).
On June
26, 2018, Defendants filed their motions for summary judgment
against each of the named plaintiffs in this action as well
as on certain class claims. See generally Docs.
136-37 & 139-42. On the same date, Plaintiffs filed their
motion to certify class and motion to appoint class counsel.
See generally Docs. 143 & 145. After the Court
entered its ruling on Defendants' motions for summary
judgment and on certain class claims, only Plaintiff's
ADTPA claim and Franks's Mississippi state law claims
survived. Doc. 169, at 37-38. On October 2, 2018,
Franks's claims were dismissed without prejudice for lack
of subject matter jurisdiction and because the Court declined
to exercise supplemental jurisdiction pursuant to 28 U.S.C.
§ 1367. Doc. 170.
On
January 29, 2019, Plaintiff filed her Request for Briefing
Schedule or Ruling on Plaintiff's Motion for Class
Certification in which she requested the Court to either
enter a briefing schedule for, or rule on, her motion to
certify class. Doc. 172. The Court granted Plaintiff's
request that the Court enter a briefing schedule for her
motion to certify class but denied her request that the Court
rule on her motion to certify class. Doc. 174. Defendants
filed their response to the motion to certify class, Doc.
176, and Plaintiff filed her reply, Doc. 181.
DISCUSSION
Plaintiff's
original proposed class definition in their motion to certify
class is as follows:
All resident citizens of the State of Alabama who purchased
the Clairol Balsam Color hair dye “Black | 618”,
“Natural Black | 12”, and/or “Dark Brown |
615” for personal, family, or household use from
February 20, 2013, to the present day.
Excluded from the class are (i) any person who purchased
Clairol Balsam Color hair dye “Black | 618”,
“Natural Black | 12”, and/or “Dark Brown |
615” for resale and not personal, family, or household
use, (ii) any person who signed a release of any Defendant in
exchange for consideration, (iii) any officers, directors, or
employees, or immediate family members of the officers,
directors, or employees of any Defendant or any entity in
which any Defendant has a controlling interest, (iv) any
legal counsel of employee of legal counsel for any Defendant,
and (v) the presiding Judges in this legal action, as well as
the Judges' staff and their immediate family members.
Doc. 143, at 32 (footnote omitted).
Defendants'
response to Plaintiff's motion to certify class addresses
Plaintiff's original proposed class definition,
compare Id. with Doc. 176, at 6-25; however, in
Plaintiff's reply to the motion to certify class, she
proposes a class definition that is modified to conform to
the rulings of this Court, which have left her as the sole
remaining plaintiff.[3] Plaintiff's proposed modified class
definition is as follows:
All resident citizens of the State of Alabama who purchased
the Clairol Balsam Color hair dye “Black | 618”
and/or “Natural Black | 12”, ” within the
State of Alabama for personal, family, or household use from
March 1, 2013, to the present day. Excluded from the class
are (i) non-resident citizens of the State of Alabama, (ii)
any resident citizen of the State of Alabama who purchased
Clairol Balsam Color hair dye “Black | 618”
and/or “Natural Black | 12” outside of the State
of Alabama, (iii) any person who purchased Clairol Balsam
Color hair dye “Black | 618” and/or
“Natural Black | 12” for resale and not personal,
family, or household use, (iv) any person who signed a
release of any Defendant in exchange for consideration, (v)
any officers, directors, or employees, or immediate family
members of the officers, directors, or employees of any
Defendant or any entity in which any Defendant has a
controlling interest, (vi) any legal counsel of employee of
legal counsel for any Defendant, and (vii) the presiding
Judges in this legal action, as well as the Judges' staff
and their immediate family members.
Doc. 181, at 1-2 (footnote omitted).[4] Based on the rulings of the
Court, it finds Plaintiff's proposed modified class
definition should be considered, but she should specifically
file a motion and brief the newly proposed class.
Additionally, Defendants will receive a full and fair
opportunity to address the modified proposed class
definition. Further, the Court finds the original proposed
...