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Class Certification Discussed in Beach Fee Suit

Plaintiffs challenged a $3.00 beach access fee and sought class
certification, proposing subclasses of those who had paid the fee and those
who had not paid and consequently couldn't go to the beach.

Impracticability of joinder "does not mean impossibility, but only the
difficulty or inconvenience of joining all members of the class. . . .
Thus, impracticability of joinder can be demonstrated without reference to
class size, for example in cases where class members are difficult to
locate or are unknown." (186)

Certification under Rule 23(1)(B) (where multiple suits would create a risk
of adjudications which would be dispositive of the interests of other
members or would substantially impair or impede their ability to protect
their interests) is not appropriate in the absence of a limited fund or
other situation similar to those described in the Advisory Committee Notes
to Rule 23.

Certification under Rule 23(b)(2) is not appropriate because plaintiffs
also seek claims for compensatory damages in amounts to be proven at trial,
punitive damages, and treble damages under a state statute, as well as
common law remedies such as disgorgement of benefits and imposition of a
constructive trust. The court therefore will not characterize the damages
aspect of the case as "incidental to the claim for injunctive relief." At
192: "Had Plaintiffs sought to recoup merely $3.00 each and/or requested
declaratory and injunctive relief only, the Court would be inclined to find
that injunctive relief was primary to the monetary damage aspect of the

The court certifies the subclass of those who paid the beach fee, but not
the subclass of those who didn't pay, under Rule 23(b)(3)'s more rigorous

On motion for reconsideration, the plaintiffs asked that the subclass of
those who paid be certified under Rule 23(b)(2) for injunctive relief and
Rule 23(b)(3) for damages, and limited their damages request to recoupment
of the $3.00 fee (potentially trebled under state law) and punitive
damages. The court instead certifies the whole case for that subclass
under Rule 23(b)(2). The amended damages request flows to the class as a
whole and can legitimately be characterized as incidental to the injunctive
claims; there will be no damages that have to be determined separately for
each class member. Under these circumstances due process does not require
notice and the opportunity to opt out, though the court will retain
discretion to provide these opportunities if they are appropriate. See:
Daly v. Harris, 209 F.R.D. 180 (D.Haw. 2002).

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