PAUL MAGNUSON, Senior District Judge
This matter is before the Court on several Motions. For the reasons that follow, the Court denies Plaintiffs' Motion for Class Certification, declines to exercise supplemental jurisdiction over Plaintiffs' claims and therefore denies the cross Motions for Summary Judgment, and denies Defendant's Motion for Sanctions.
BACKGROUND
Plaintiffs Lawrence Baer and Craig Kraft bring this action on behalf of themselves and other similarly situated individuals who applied for truck driver positions with Defendant GT Trucking Company ("GT"). They allege that the application forms that GT used violate the Minnesota Human Rights Act ("MHRA"). They initially brought an additional claim under the Americans with Disabilities Act ("ADA"), but withdrew that claim at the hearing on these Motions.
A. GT Trucking Company and its Truck Drivers
GT is a Minnesota corporation that operated as a trucking company from 1971 to August 2003. When GT ceased trucking operations in August 2003, it sold its trucking-related assets and has not employed or hired any truck drivers since. However, it still owns the property where its trucking operations were based and leases the property to other businesses.
As of January 1, 2005, GT does not have any employees and does not intend to hire any. Instead, GT intends to continue leasing its property to third parties.
When GT operated as a trucking company, it regularly ran newspaper advertisements to solicit applicants for truck driving positions. GT ran the advertisements even if it was not actively seeking to fill a truck driver position. Likewise, it accepted applications for truck driver positions even when it did not have a vacant position. When a position opened, GT would review the application materials that it had previously received and make a hiring decision.
GT generally required that a truck driver have a minimum of two to three consecutive years of experience driving a particular type of truck (e.g., a belly-dump truck, a heavy-equipment truck, a tanker truck, or an over-the-road truck). If an applicant had that level of experience, GT would proceed with the next step of the hiring process by conducting background checks, drivers license checks, drug and alcohol test checks, and previous employer checks.
GT opened the hiring process twice between June 2002 and August 2003: once in August 2002 and again in February 2003. Both times, it filled a heavy-equipment truck driver position.
B. Application Forms
Between 1991 and August 2003, GT used multiple application forms for truck driver applicants. The Court classifies these forms into two categories, Category A and Category B.
1. Category A
The application forms in Category A inquire about the applicant's physical history. Specifically, the forms request that the applicant identify any handicap that prevented the performance of certain kinds of work, whether the applicant had ever been injured on the job, and how much time the applicant had lost from work in the prior three years due to illness. (Dec. 1, 2004, Hemmelman Aff. Exs. 1-3.) The form also contains a section that starts with the phrase: "TO BE READ AND SIGNED BY APPLICANT." (Id.) By signing that section, the applicant permitted GT "to make such investigations and inquiries of my personal, employment, financial or medical history and other related matters as may be necessary in arriving at an employment decision." (Id.) Three potential class members received a Category A application: Baer, Kraft, and Terence Bryant. Although neither completed the physical history section, both Baer and Kraft allegedly signed the authorization consenting to a medical history check. GT did not hire Baer, Kraft, or Bryant.
2. Category B
The application forms in Category B do not contain any specific questions about an applicant's physical conditions, medical history, or inability to work due to illness or impairment. (Id. Exs. 4, 6.) They do contain a section where an applicant is to sign and thereby allow GT "to make such investigations and inquiries of my personal, employment, financial or medical history and other related matters as may be necessary in arriving at an employment decision." (Id.) However, the Category B applications explain that any inquiries regarding medical history generally would be made only if and after GT extended a conditional offer of employment. (Id.) Between thirty-six and forty-one potential class members completed a Category B application.
Notwithstanding the fact that GT used these forms, it never requested or obtained any information from a third party relating to an applicant's medical condition or treatment.
DISCUSSION
A. Class Certification
Baer and Kraft seek to represent the following class for alleged violations of the MHRA:
All applicants for truck driving positions whom Defendant required to fill out an application for employment that sought illegal medical information regarding applicants' physical health, prior injuries and/or disabilities during the time period August 26, 2001 to the present.
(Pls.' Memo. in Supp. of Class Cert. at 6.)
The determination of whether class certification is appropriate is not perfunctory. The Court may certify a class action only if it is satisfied "after rigorous analysis" that the prerequisites of Federal Rule of Civil Procedure 23 have been met. Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982). Thus, the Court must carefully evaluate whether the named plaintiff is a proper class representative under Rule 23. Id. at 160.
In determining whether certification is appropriate, the Court looks at the individualized circumstances of the case and balances "between the convenience of maintaining a class action and the need to guarantee adequate representation to the class members." Wright v. Stone Container Corp., 524 F.2d 1058, 1061 (8th Cir. 1975). In addition, the Court may make a preliminary inquiry into the merits to determine whether the alleged claims can properly be resolved as a class action. Mathers v. Northshore Mining Co., 217 F.R.D. 474, 483 (D. Minn. 2003) (Davis, J.); see also Gen. Tel. Co. of the Southwest, 457 U.S. at 160.
1. Rule 23(a)
To satisfy Rule 23(a), Baer and Kraft must establish four threshold requirements: commonality, typicality, numerosity, and adequacy of representation. Fed.R.Civ.P. 23(a); Amchem Prods. v. Windsor, 521 U.S. 591, 613 (1997). Baer and Kraft fail to satisfy the commonality and typicality requirements to be sufficient representatives of the class as it pertains to Category B applications. However, they are proper class representatives of Category A applicants. Nonetheless, class certification is improper because the number of Category A applicants fails to satisfy the numerosity requirement of Rule 23(a).
a. Commonality
The purpose of Rule 23 is to promote judicial economy by allowing the litigation of at least one issue that affects every class member. Gen. Tel. Co. of the Southwest, 457 U.S. at 155. Thus, Baer and Kraft must share at least one question of fact or law with the claims of the prospective class. Fed.R.Civ.P. 23(a)(2). Commonality is satisfied when a single issue pervades the class members' claims "even though the individuals are not identically situated." Paxton v. Union Nat'l Bank, 688 F.2d 552, 561 (8th Cir. 1982). However, not every common question will suffice since "at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality." Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998). There must be a common issue that advances the litigation of all class members' claims. Id.
Baer and Kraft contend that this action involves a single question of whether the applications used by GT violate the MHRA. However, they define the issue too broadly and fail to differentiate between Category A and Category B applications. The record shows that Category A applications differed from Category B applications in several important aspects. Specifically, Category A applications ask three questions relating to the applicant's health condition. Category B applications do not ask such questions. In addition, Category A applications do not explain that GT would perform a medical history background check only after GT made a conditional job offer. These factual dissimilarities give rise to three distinct legal issues: (1) whether the medical questions asked in only Category A applications violate the MHRA, (2) whether the request for a release of medical records before a conditional job offer is made violates the MHRA, and (3) whether the request for a release of medical records after a conditional job offer is made violates the MHRA. These questions distinguish individuals who completed Category A applications from those who completed Category B applications. Because the factual and legal analysis differs depending on what type of application the individual completed, Baer and Kraft have failed to show commonality with Category B applicants.
b. Typicality
To meet the typicality requirement, Baer and Kraft must show that their claims or defenses are typical of the claims or defenses of the class. Fed.R.Civ.P. 23(a)(3). "Factual variations in the individual claims will not normally preclude class certification if the claim arises from the same event or course of conduct as the class claims, and gives rise to the same legal or remedial theory." Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996) (citations omitted). However, Baer and Kraft must show that the pursuit of their claims will advance the interest of class members and that their claims 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 Southwest, 457 U.S. at 158 n. 13.
Baer and Kraft maintain that they have satisfied the typicality requirement, as they each completed applications containing identical or substantially similar illegal medical questions. However, as explained above, there are great differences between Category A and Category B applications. The evidence and analysis of Category A applicants' claims will not answer issues relating to Category B applicants' claims. Moreover, by proving their own claims, Baer and Kraft will not prove the claims of individuals who received Category B applications. Thus, the maintenance of a class action will not advance "the efficiency and economy of litigation which is a principal purpose of the procedure." Gen. Tel. Co. of the Southwest, 457 U.S. at 159 (citation omitted). Therefore, the Court finds that Baer and Kraft have failed to satisfy the typicality requirement as it relates to Category B applicants.
Because Baer and Kraft do not meet either the commonality or typicality requirements as it relates to the proposed class members who received Category B applications, they are not proper class representatives of those individuals. Thus, the Court must determine whether Baer and Kraft satisfy the remaining requirements of Rule 23(a) as it pertains to Category A applicants.
c. Numerosity
Numerosity requires that "the class be so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). Because the determination of impracticability depends on the facts of the case, the Eighth Circuit has not established strict requirements regarding the size of a proposed class. See Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 54 (8th Cir. 1977). In determining whether the numerosity requirement is met, the Court considers the size of the proposed class, the nature of the action, the size of the individual claims, and the inconvenience of trying individual suits.Paxton, 688 F.2d at 559-60. Ultimately, the Court must determine whether the named plaintiffs will suffer a strong hardship or inconvenience if joinder is required.
The rule of thumb is that the existence of 40-plus class members raises a presumption that joinder is impracticable, and a class that size should meet the test of Rule 23(a)(1) on that fact alone. Newberg on Class Actions § 3.05 at 3-25; see also Lockwood Motors, Inc. v. Gen. Motors Corp., 162 F.R.D. 569, 574 (D. Minn. 1995) (Kyle, J.); 3B Moore's Federal Practice § 23.05[1] (2d ed. 1995) ("while there are exceptions, numbers in excess of forty . . . have sustained the [numerosity] requirement").
Only three individuals received a Category A application: Baer, Kraft, and another individual. Joinder of that additional person is not so impracticable as to justify class treatment. Therefore, Baer and Kraft fail to satisfy Rule 23(a) and are not proper representatives of the proposed class.
2. Rule 23(b)
Even if Baer and Kraft satisfied the requirements of Rule 23(a), their Motion for Class Certification must still fail because certification is not proper under Rule 23(b). In addition to satisfying all the requirements of Rule 23(a), Baer and Kraft must also demonstrate that class certification is appropriate under one of the subparts under Rule 23(b). Eisen v. Carlisle Jacquelin, 417 U.S. 156, 163 (1974). Baer and Kraft maintain that they certification under Rule 23(b)(1) and 23(b)(2) is appropriate.
Rule 23(b)(1) allows a class action to be maintained when the prosecution of individual actions would create the risk of inconsistent or varying adjudications "which would establish incompatible standards of conduct for the party opposing the class." Fed.R.Civ.P. 23(b)(1)(A). In this case, certification under Rule 23(b)(1) is inappropriate because all of the proposed class members are seeking the same relief. In re: St. Jude Med., Inc. Silizone Heart Valves Prods. Liab. Litig., MDL No. 01-1396, 2003 WL 1589527 at *17 (D. Minn. 2003) (Tunheim, J.); see also Fogie v. Rent-a-Center, Inc., 867 F. Supp. 1398, 1403 (D. Minn. 1993) (Murphy, J.) ("This case does not fit under 23(b)(1)(A) because plaintiffs are not suing for different or incompatible relief.").
Rule 23(b)(2) allows a class action when a defendant has "acted or refused to act on grounds generally applicable to the class, thereby make appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2). "However, certification under Rule 23(b)(2) is precluded where monetary relief is sought, unless such monetary relief is incidental to the requested injunctive or declaratory relief." Glenn v. Daddy Rocks, Inc., 203 F.R.D. 425, 430 (D. Minn. 2001) (Doty, J.).
Baer and Kraft contend that they are not seeking monetary damages relating to failures to hire. However, they are seeking monetary damages for emotional distress, punitive damages, treble damages under Minn. Stat. §§ 363.14 and 363.071, and civil penalties pursuant to Minn. Stat. §§ 363.14 and 363.071. Even so, they maintain that the request for monetary relief is secondary. Assuming that is true, the Court finds injunctive relief is inappropriate in this case. "The purpose of an injunction is to prevent future violations" and therefore is appropriate only when a cognizable danger exists of recurrent violation. Dyer v. SEC., 291 F.2d 774, 780-81 (8th Cir. 1961). Because GT is no longer in the trucking business and no longer hires employees, an injunction would serve no purpose. Thus, Baer and Kraft fail to satisfy the requirements of Rule 23(b) and class certification is inappropriate.
The Court notes that the Amended Complaint alleges that Baer and Kraft have "suffered and will continue to suffer loss of pay and benefits and emotional anguish," as well as attorneys' fees and costs. (Am. Compl. ¶¶ 27-28.) In addition, the Prayer for Relief seeks "damages for lost pay and benefits," as well as other monetary damages. (Id. at 7.) However, at the hearing on these Motions, Baer and Kraft withdrew their request for monetary damages relating to the failures to hire.
B. Summary Judgment
Baer and Kraft initially asserted claims under both the ADA and the MHRA. However, they withdrew the ADA claim at the hearing on these Motions. Baer and Kraft acknowledge that the Court no longer has original jurisdiction over this action. Consequently, they ask the Court to exercise supplemental jurisdiction.
A court may decline to exercise supplemental jurisdiction over a claim if it has dismissed all claims over which the court has original jurisdiction or if the claim raises a novel or complex issue of state law. 28 U.S.C. § 1367(c); see also Fielder v. Credit Acceptance Corp., 188 F.3d 1031, 1038 (8th Cir. 1999) (court "should hesitate to exercise § 1367 supplemental jurisdiction" when the case involves novel and important issues of state law on which state appellate courts have given little or no prior guidance). This case now solely involves the interpretation of MHRA provisions, and no Minnesota court has addressed the issues raised here. The Court refuses to speculate as to how Minnesota courts will interpret the state law provisions. Accordingly, the Court declines to exercise supplemental jurisdiction over the remaining claims in this case. The Court does not address the merits of the cross Motions for Summary Judgment and dismisses the Amended Complaint without prejudice.
C. Rule 11 Motion
GT asks that the Court sanction Plaintiffs' counsel for failing to withdraw class allegations that lack either factual or legal support. In particular, GT argues that Plaintiffs' attorneys refuse to withdraw allegations of a pattern or practice of ongoing violations — even though they know that GT no longer operates a truck driving business. GT further submits that it has been forced to respond to certification under Rule 23(b)(2) even though injunctive relief is clearly not available.
Federal Rule of Civil Procedure 11 requires that an attorney conduct a reasonable inquiry of the factual and legal basis for a claim before filing a complaint. Fed.R.Civ.P. 11(b); Coonts v. Potts, 316 F.3d 745, 753 (8th Cir. 2003) (citation omitted). To constitute a reasonable inquiry, the pre-filing investigation must uncover a factual and legal basis for the allegations in the Complaint. Coonts, 316 F.3d at 753. A court may impose sanctions under Rule 11 if the advancement of a claim is unsupported by the facts and law. Fed.R.Civ.P. 11(c). The Court has broad discretion in determining whether sanctions are appropriate. Id.
Notwithstanding the fact that the Court finds little merit in the allegations of ongoing violations, the Court is not convinced that sanctions are appropriate in this case. Until January 2005, GT still employed an individual and has yet to dissolve as a corporation. Thus, although the Court now finds that injunctive relief is inappropriate, the initial request for injunctive relief was not entirely baseless.
CONCLUSION
Accordingly, based on all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Plaintiffs' Motion for Class Certification (Clerk Doc. No. 64) is DENIED;
2. Plaintiffs' Motion for Summary Judgment (Clerk Doc. No. 76) is DENIED;
3. Defendant's Motion for Summary Judgment (Clerk Doc. No. 81) is DENIED;
4. Defendant's Motion for Sanctions (Clerk Doc. No. 83) is DENIED;
5. Count I of the Amended Complaint is DISMISSED with prejudice; and
6. Count II of the Amended Complaint is DISMISSED without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.