Rowand v. City of Morgantown, West Virginia

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ANTHONY ROWAND,
personally and on behalf
of all others similarly situated,
Plaintiff,
v. 	CIVIL NO. 1:24-CV-41
(KLEEH)
CITY OF MORGANTOWN,
WEST VIRGINIA,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING JOINT MOTION FOR FINAL
APPROVAL OF CLASS ACTION SETTLEMENT [ECF NO. 14]
Pending 	before 	the 	Court 	is 	the 	parties’ 	Joint 	Motion 	for
Final Approval of Class Action Settlement [ECF No. 14]. 	The Court
previously 	entered 	the 	parties’ 	proposed 	Order 	Preliminarily
Approving 	Settlement 	and 	Directing 	Notice 	to 	Class 	[ECF 	No. 	13]
and 	convened 	for 	a 	hearing 	on 	the 	present 	motion 	on 	October 	9,
2025. 	The motion is ripe for decision.
I. 	BACKGROUND
Plaintiff filed suit against the City of Morgantown over the
City’s 	decision 	to 	enforce 	a 	long-standing 	ordinance 	prohibiting
panhandling. 	Specifically, 	he 	alleges 	that 	Morgantown 	City
Ordinance 	§ 	371.10 	violates 	his 	Constitutional 	rights 	under 	the
First and Fourteenth Amendments. 	ECF No. 1. 	The claim is brought
under 42 U.S.C. § 1983. 	Id. 	The challenged ordinance “prohibits
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APPROVAL OF CLASS ACTION SETTLEMENT [ECF NO. 14]
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persons 	from 	using 	the 	spoken, 	written, 	or 	printed 	word, 	bodily
gestures, 	signs 	or 	other 	means 	to 	solicit 	immediate 	donations 	of
money 	or 	other 	things 	of 	value.” 	Id. 	Plaintiff 	seeks 	monetary
damages, declaratory relief, and injunctive relief for himself and
the putative class members.
Without 	significant 	litigation, 	the 	parties 	negotiated 	a
settlement 	of 	Plaintiff’s 	and 	the 	putative 	class’s 	claims. 1 	The
Settlement 	Agreement 	[ECF 	No. 	12-1] 	outlines 	the 	parties’
agreement. 	The 	City 	would 	pay 	a 	total 	of 	$35,100 	as 	follows:
$10,000 to Plaintiff Rowland, 2 $25,000 to Mountain State Justice,
Inc., and $100 to the only class member who actually paid the fine
and/or costs associated with his or her citation. 	The City agreed
to 	vacate 	any 	convictions 	under 	the 	ordinance 	without 	requiring
any 	action 	by 	any 	class 	member. 	Moreover, 	the 	City 	agreed 	to
reimburse every class member who paid fines or court costs for any
conviction under the ordinance. 	The parties propose such payments
be made to class counsel who will disperse proceeds “provided the
City supplies proper identification of affected persons.” 	ECF No.
1 	Counsel 	advised 	during 	the 	October 	9, 	2025, 	hearing 	that
settlement 	discussions 	were 	underway 	before 	Plaintiff 	filed 	his
Complaint.
2 	Half 	of 	Plaintiff’s 	recovery 	- 	$5,000 	– 	would 	be 	paid 	directly
to the Florida Department of Revenue Child Support Program toward
his delinquent child support.
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14 at 3. 	The settlement agreement is silent on how any such funds
that cannot be disbursed to claimants will be handled.
II. 	DISCUSSION
“The claims, issues, or defenses of a certified class — or a
class proposed to be certified for purposes of settlement — may be
settled, 	voluntarily 	dismissed, 	or 	compromised 	only 	with 	the
court’s approval.” 	Fed. R. Civ. P. 23(e). 	“The court’s ultimate
role 	in 	overseeing class action settlements is 	to 	ensure 	that
any settlement proposed 	by 	the 	parties 	is 	‘fair, 	reasonable, 	and
adequate.’” 	Good v. W. Va.-Am. Water Co., No. CV 14-1374, 2017 WL
2884535, 	at 	*9 	(S.D.W. 	Va. 	July 	6, 	2017) 	(Copenhaver, 	J.).
Court approval of 	a 	proposed class action settlement proceeds 	in
two 	stages. 	See Rapuano 	v. 	Trs. 	of 	Dartmouth 	Coll., 	334 	F.R.D.
637, 	642 	(D.N.H. 	Jan. 	29, 	2020); see also 4 	William 	B.
Rubenstein, Newberg 	on Class Actions § 	13.10 	(5th 	ed. 	2019). 	At
the first stage, the court must determine whether it “will likely
be able to” both (1) certify the class for settlement purposes and
(2) 	find 	that 	the settlement is 	fair, 	reasonable, 	and 	adequate.
Fed. R. Civ. P. 23(e)(1)(B). 	Certification, moreover, is equally
as 	important 	in 	the settlement context 	as 	in 	the 	litigation
context. 	Good, 	2017 	WL 	2884535, 	at 	10 	(citation 	omitted); 	see
also 	Staton 	v. 	Boeing 	Co., 327 	F.3d 	938, 	952 	(9th 	Cir. 	2003)
(noting 	that 	when 	parties 	reach 	a settlement agreement 	prior 	to
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class 	certification, 	the 	Court 	has 	an 	obligation 	to 	“peruse 	the
proposed 	compromise 	to 	ratify 	both 	the 	propriety 	of 	the
certification and the fairness of the settlement”).
The parties’ Joint Motion glosses over a critical first step
of 	the 	analysis 	– 	whether 	class 	certification 	is 	appropriate 	in
this particular case. 	For the reasons discussed herein, the Court
finds it is not and, therefore, DENIES the motion.
Rule 	23(a) 	requires 	a 	district 	court 	to 	make 	the 	following
determinations before a class can be considered for certification:
(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.
Fed. R. Civ. P. 23(a). 	“A party seeking class certification must
affirmatively 	demonstrate 	[] 	compliance 	with 	the 	Rule,” 	Wal-Mart
Stores, 	Inc. 	v. 	Dukes, 	564 	U.S. 	338, 	350 	(2011), 	and 	must 	do 	so
with “evidentiary proof.” 	Comcast Corp. v. Behrend, 569 U.S. 27,
33 (2013). 	In other words, the burden of establishing class status
is on the Plaintiffs. 	See Int’l Woodworkers of Am., AFL—CIO, CLC
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v. 	Chesapeake 	Bay 	Plywood 	Corp., 	659 	F.2d 	1259, 	1267 	(4th 	Cir.
1981).
Rule 	23(a)(1) 	requires 	that 	a 	class 	be 	“so 	numerous 	that
joinder 	of 	all 	members 	is 	impracticable.” 	Fed. 	R. 	Civ. 	P.
23(a)(1). 	“Impracticable 	does 	not 	mean 	impossible.” 	Hewlett 	v.
Premier 	Salons 	Int'l, 	Inc., 	185 	F.R.D. 	211, 	215 	(D. 	Md. 	1997)
(citation omitted). 	“Practicability of joinder depends on factors
such as the size of the class, ease of identifying its numbers and
determining their addresses, facility of making service on them if
joined and their geographic dispersion.” 	Id.
No 	specific 	number 	is 	needed. 	See 	In 	re 	Under 	Armor
Securities Litigation, 631 F. Supp.3d 285, 300 (Md. 2022) (citation
omitted). 	A 	plaintiff 	is 	not 	required 	to 	identify 	the 	specific
number 	of 	class 	members. 	An 	unsubstantiated 	allegation 	as 	to
numerosity, 	however, 	is 	insufficient 	to 	satisfy 	Rule 	23(a)(1).
See Buford v. H&R Block, Inc., 168 F.R.D. 340, 348 (S.D. Ga. 1996)
(citation 	omitted). 	“Though 	‘[n]o 	specified 	number 	is 	needed 	to
maintain 	a 	class 	action,’ 	Cypress 	v. 	Newport 	News 	Gen. 	&
Nonsectarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967) ‘[a]s
a general guideline, . . . a class that encompasses fewer than 20
members will likely not be certified . . . while a class of 40 or
more 	members 	raises 	a 	presumption 	of 	impracticability 	of 	joinder
based 	on 	numbers 	alone,’ 	1 	Newberg 	on 	Class 	Actions 	§ 	3:12 	(5th
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ed. 	2021).” 	In 	re 	Zetia 	(Ezetimibe) 	Antitrust 	Litig., 	7 	F.4th
227, 	234 	(4th 	Cir. 	2021). 	For 	the 	“gray 	area” 	cases 	between 	20
and 40 members, “all the circumstances of the case should be taken
into consideration” in evaluating the impracticability of joinder.
Id. 	(citing 	Ballard 	v. 	Shield 	of 	S.W. 	Va., 	Inc., 	543 	F.2d 	1075,
1080 (4th Cir. 1976)).
The 	record 	that 	the 	parties 	established 	before 	the 	Court
clearly 	shows 	that 	the 	proposed 	class 	falls 	well 	short 	of 	the
typical 	bright 	line 	threshold. 	At 	hearing, 	counsel 	agreed 	that
the 	total 	class 	population 	was 	less 	than 	20 	– 	likely 	15 	total
persons. 	The parties confirmed this number at the Court’s request.
ECF No. 18. 	Thus, as precedent dictates, joinder does not appear
to be impracticable and the class will “not likely be certified.”
In 	re 	Zetia 	(Ezetimibe) 	Antitrust 	Litig., 	7 	F.4th 	at 	234 	(noting
that 	a 	class 	of 	40 	or 	more 	members 	raises 	a 	“presumption” 	of
impracticability). 	Nonetheless, in order to provide the necessary
“rigorous 	analysis” 	enabling 	thorough 	appellate 	review, 	if
necessary, 	the 	Court 	will 	go 	beyond 	the 	raw 	numbers 	assessment.
See 	General 	Telephone 	Co. 	of 	Southwest 	v. 	Falcon, 	457 	U.S. 	147,
161 (1982); In re Zetia, 7 F. 4th at 236.
Although 	it 	does 	not 	appear 	that 	the 	Fourth 	Circuit 	has
formally 	adopted 	the 	Third 	Circuit’s 	“non-exhaustive 	list 	of
factors” 	for 	the 	numerosity 	analysis, 	it 	did 	tacitly 	approve 	of
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those 	factors 	in 	In 	re 	Zetia. 	See 	In 	re 	Zetia, 	7 	F.4th 	at 	234
(citing 	In 	re 	Modafinil 	Antitrust 	Litig., 	837 	F.3d 	238, 	253 	(3d
Cir. 	2016)). 	Thus, 	the 	Court 	considers 	those 	here. 	The 	factors
include 	“judicial 	economy, 	the 	claimants’ 	ability 	and 	motivation
to litigate as joined plaintiffs, the financial resources of class
members, [and] the geographic dispersion of class members.” 	Id.
The Third Circuit also noted the relevance as to whether the claims
sought injunctive relief or damages. 	See In re Modafinil Antitrust
Litig., 837 F.3d at 253.
Considering 	judicial 	economy, 	a 	15-plaintiff 	civil 	case 	is
hardly 	an 	impossible 	lift, 	particularly 	here, 	where 	there 	are 	no
complex questions of liability or damages (as there are no specific
damages beyond the citation, court costs, and statutory damages).
This 	Court 	routinely 	handles 	criminal 	cases 	with 	a 	larger 	number
of criminal defendants and has likewise efficiently managed civil
cases 	with 	10-plus 	plaintiffs 	or 	defendants 	without 	the 	need 	to
certify 	the 	matters 	as 	class 	actions. 	Of 	course, 	as 	the 	Fourth
Circuit has noted, the impracticability of joinder – not the number
of 	trials 	or 	lawsuits 	– 	is 	the 	focus 	here. 	See 	In 	re 	Zetia
(Ezetimibe) Antitrust Litig., 7 F.4th at 235. 	The Court simply
cannot 	conclude 	that 	joinder 	of 	15 	plaintiffs 	is 	impracticable.
The 	identity 	of 	each 	class 	member 	is 	known 	to 	the 	parties 	and
counsel, despite claims to the contrary in the parties’ preliminary
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motion. 	The 	raw 	number 	of 	potential 	litigants 	is 	small 	– 	well
below 	the 	presumed 	threshold 	recognized 	in 	circuit 	courts 	around
the country, including the Fourth. 	This factor counsels strongly
against class certification.
Turning to the claimants’ ability and motivation to litigate
as 	joined 	plaintiffs, 	the 	record 	is 	devoid 	of 	any 	evidence 	upon
which 	the 	Court 	can 	rely 	to 	make 	a 	definitive 	decision 	on 	this
factor 	either 	way. 	The 	parties’ 	submissions 	to 	the 	Court 	urging
class certification and settlement approval do not address any of
the Rule 23 certification factors. 	Instead, the parties dedicate
their entire effort to the settlement approval analysis. 	The Court
cannot fill in evidentiary gaps solely because the parties jointly
move 	the 	Court 	to 	do 	so. 	They, 	therefore, 	have 	failed 	to 	meet
their 	burden. 	See 	General 	Telephone 	Co. 	of 	Southwest 	v. 	Falcon,
457 U.S. at 161.
The 	financial 	resources 	of 	class 	members 	factor 	cannot
clearly 	be 	discerned 	as 	to 	whether 	certification 	is 	appropriate.
“This primarily involves an examination of the stakes at issue for
the individual claims and the complexity of the litigation, which
will typically correlate with the costs of pursuing these claims.”
In re Modafinil Antitrust Litig., 837 F.3d at 257. 	However, that
examination here would be made more on assumption and speculation
than 	record 	evidence. 	As 	discussed 	at 	the 	October 	9 	hearing,
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counsel 	observed 	that 	most 	class 	members 	were 	without 	permanent
housing. 	The class notice provisions from the Court’s Preliminary
Order 	sought 	to 	account 	for 	this 	in 	the 	locations 	of 	notice
postings. 	Most 	of 	the 	purported 	class 	members 	neglected 	to 	pay
the nominal citation and court costs. 	The Court could, therefore,
assume that the class members’ financial resources are lacking.
The 	other 	aspects 	of 	this 	factor, 	as 	expounded 	upon 	by 	the
Third Circuit, weigh against certification. 	Although framed as a
deprivation of constitutional rights claim, the issues at stake in
this case are not complex. 	The parties have effectively agreed on
every 	aspect, 	even 	undertaking 	settlement 	discussions 	before
Plaintiff 	filed 	suit. 	Defendant 	agreed 	not 	to 	enforce 	the
challenged 	ordinance 	and 	has 	repealed 	it. 	Even 	so, 	assuming
arguendo 	that 	this 	factor 	supports 	certification, 	it 	alone 	is
insufficient 	to 	outweigh 	the 	other 	considerations 	to 	require
certification. 	Moreover, the parties have failed to satisfy their
evidentiary burden here as well. 	See id.
Lastly, 3 	the 	geographic 	dispersion 	of 	the 	class 	does 	not
assist 	the 	parties 	in 	their 	joint 	motion. 	Like 	the 	ability 	and
3 The final factor – the relief sought – was not expressly adopted
or 	discussed 	In 	re 	Zetia. 	Regardless, 	it 	is 	an 	appropriate
consideration here as the Court finds the Third Circuit’s analysis
persuasive. 	It 	simply 	does 	not 	alter 	the 	analysis 	in 	a 	material
way 	as 	Plaintiff 	seeks 	both 	injunctive 	relief 	and 	damages — also
contrary to the parties’ contention in their preliminary motion.
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motivation 	factor, 	the 	record 	is 	devoid 	of 	relevant 	evidence.
Counsel report that most, if not all, of the class members live a
nomadic or transient lifestyle. 	Again, this is very likely true.
However, 	there 	is 	no 	indication 	whether 	any 	of 	the 	class 	members
continue 	to 	reside 	in 	the 	greater 	Morgantown 	area 	or 	even 	the
Northern 	District. 	Nor 	do 	the 	parties 	point 	the 	Court 	to 	any
evidence that the individuals are scattered about such that class
certification would be an efficient and fair mechanism to resolve
any 	alleged 	claims. 	Again, 	the 	parties 	have 	set 	forth 	no
“evidentiary proof” upon which the Court can rely. 	Comcast Corp.
v. 	Behrend, 	569 	U.S. 	at 	33. 	The 	Court, 	therefore, 	cannot 	find
this factor favors certification either.
This 	case 	is 	far 	from 	“general 	knowledge 	and 	common 	sense
indicat[ing] the class is so large that joinder of all members is
impracticable.” 	In 	re 	Under 	Armor 	Securities 	Litigation, 	631 	F.
Supp.3d at 300 (citation omitted). 	Quite the opposite, actually.
The 	potential 	class 	is 	but 	15 	members. 	Each 	is 	identifiable 	and
known 	to 	the 	parties. 	The 	factors 	the 	Court 	can 	properly 	assess
with the record before it do not weigh in favor of certification.
The factors that could tilt toward certification are not properly
addressed 	or 	supported 	with 	the 	required 	evidentiary 	proof.
Therefore, 	the 	Court 	cannot 	conclude 	that 	class 	certification 	is
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appropriate and cannot consider the other aspects of the parties’
proposed settlement agreement under Rule 23.
With 	class 	certification 	improper 	here, 	the 	Court 	does 	not
reach the second step of the analysis as to whether the settlement
agreement is fair, reasonable, and adequate under Rule 23.
III. CONCLUSION
For 	the 	foregoing 	reasons, 	the 	parties’ 	Joint 	Motion 	is
DENIED. 	The parties SHALL meet and confer within twenty-one (21)
days 	of 	entry 	of 	this 	order 	and 	submit 	a 	proposed 	schedule 	to
govern the case going forward, if one is necessary, within twenty-
eight (28) days of entry of this order.
It is so ORDERED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Memorandum
Opinion and Order to counsel of record.
DATED: December 17, 2025
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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