govinfo:USCOURTS-insd-1_23-cv-01575-9

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF INDIANA 
INDIANAPOLIS DIVISION 
 
TUSHAWN CRAIG, ) 
MARQUETTA STOKES, ) 
 ) 
Plaintiffs, ) 
 ) 
v. ) Case No. 1:23-cv-01575-TWP-MJD 
 ) 
CORNERSTONE TRADING GROUP, LLC, ) 
SETH SMITH, ) 
CITY OF RICHMOND, INDIANA, ) 
 ) 
Defendants. ) 
________________________________________ ) 
 ) 
CITY OF RICHMOND, INDIANA, ) 
 ) 
Cross Claimant, ) 
 ) 
v. ) 
 ) 
CORNERSTONE TRADING GROUP, LLC, ) 
SETH SMITH, ) 
MY-WAY TRADING, INC., ) 
 ) 
Cross Defendants. ) 
________________________________________ ) 
 ) 
CORNERSTONE TRADING GROUP, LLC, ) 
 ) 
Third Party Plaintiff, ) 
 ) 
v. ) 
 ) 
CITY OF RICHMOND, INDIANA, ) 
 ) 
Third Party Defendant. ) 
________________________________________ ) 
 
ALLEN WELLMAN HARVEY KEYES 
COOLEY , LLP, 
 
 
Interested Party. PageID #:
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ORDER ON PENDING MOTIONS 
This matter is before the Court on Defendant City of Richmond, Indiana's (the "City") 
Motion to Decertify the Class (Filing No. 308), which is joined by Defendants Cornerstone Trading 
Group, LLC ("CTG"), Seth Smith ("Smith"), and My -Way Trading, Inc. ("My-Way Trading") 
(these three together, "My-Way") (Filing No. 311); and a combined Motion for Reconsideration of 
the Court's Summary Judgment Order or in the alternative, Motion to Certify the Order for 
Interlocutory Appeal (Filing No. 312). Plaintiffs Tushawn Craig ("Craig") and Marquetta Stokes 
("Stokes") (together, "Plaintiffs") initiated this lawsuit on behalf of themselves and all others 
similarly situated against Defendants CTG, Smith , and the City (the former two together, 
"Cornerstone") alleging damages for the Defendants' failure to exercise reasonable care in their 
engagement in ultra -hazardous activities , which resulted in a catastrophic fire in Plaintiffs ' 
neighborhood (Filing No. 1- 2 at 23–30). Thereafter, CTG filed a Third- Party Complaint against 
the City, id . at 69, and the City filed Crossclaims against My- Way (Filing No. 18). The Court 
granted Plaintiffs' motion to certify the class on September 29, 2025 (Filing No. 287), and granted 
in part and denied in part the City's summary judgment motion on March 27, 2026 ( Filing No. 
304). The City and My -Way now seek decertification of the class and reconsider ation of the 
Summary Judgment Order or in the alternative to certify the Summary Judgment Order for 
interlocutory appeal. For the reasons discussed below, these Motions are denied. 
I. BACKGROUND 
The following facts are not meant to be a complete recitation of all that has transpired in 
this case. Rather, the Court will recite only those facts relevant to the instant Motions. 
A. Factual Background 
In 2006, Smith, through his company My- Way Trading, began operating a plastics 
brokerage business at 308 NW F Street (the "308 Property") in Richmond, Indiana. In December PageID #:
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2006, My- Way Trading purchased the 308 Property ( Filing No. 241 at 10). At that time, two 
neighboring parcels, 310 NW F Street (the "310 Property") and 358 NW F Street (the "358 
Property") (together, the "310/358 Properties"), were owned and operated by Hoffco/Comet 
Industries, Inc., which ceased operating the 310/358 Properties in 2010. Id. In 2012, My- Way 
began expanding its activities onto the 310/358 Properties without owning or leasing the properties 
or otherwise obtaining written consent to do so. Id. 
In May 2019, Doug Gardner ("Gardner"), the Deputy Chief of Fire Prevention for the City, 
inspected the 308 Property and the 310/358 Properties ( Filing No. 251 at 8 ). Based on Gardner's 
inspection of the three properties, the City's Unsafe Building Commission ("Building 
Commission") issued preliminary orders to CTG and AFG Investment Fund
1––the entities who 
then owned the properties ––on July 24 and 25, 2019, to "[r]epair, [d]emolish, or [v]acate" the 
properties. Id. at 9. 
The Building Commission held a hearing for the preliminary orders on September 24, 2019 
(Filing No. 251-6 at 3 ¶8). It then issued orders finding the three properties "unsafe" and that the 
"cumulative effect of the code violations present" on the premises rendered "the premises unsafe, 
substandard, or a danger to the health and safety on the public as defined by I.C. § 36-7-94." Id. at 
4–5 ¶¶17–18. The Building Commission affirmed the orders to repair or demolish and vacate the 
three properties. Id. at 5 ¶18. 
My-Way filed an action in state court seeking de novo review of the Building Commission 
orders. The Wayne County Circuit Court affirmed the Building Commission orders finding that 
the evidence presented at the hearings "clearly established that the [three properties] are unsafe to 
 
1 AFG Investment Fund was the entity that owned the 310 and 358 Properties at the time the Building Commission 
orders were issued. Wayne County received the 310 and 358 Properties from AFG following a tax sale , and the City 
subsequently took title to the properties via a quitclaim deed in March 2021 ( Filing No. 251-6). PageID #:
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people and property; constitute a fire hazard; are a hazard to public health; constitute a nuisance; 
and are dangerous to people or property because of violations of statute and City Ordinance 
concerning building condition and maintenance." Id. at 8 ¶35. 
In 2018, the City applied for and received a brownfield community assessment grant from 
the U.S. Environmental Protection Agency ("EPA") in the amount of $300,000.00 for investigating 
brownfields, including the 310/358 Properties (Filing No. 241 at 10).
2 On October 27, 2020, City 
Attorney Andrew Sickmann ("Sickmann") sent a letter to My- Way demanding it vacate the 
310/358 Properties (Filing No. 238-6 at 2–3 ¶9). On March 2, 2021, Wayne County acquired the 
310/358 Properties by way of tax sale ( Filing No. 251 at 10). Then, on March 22, 2021, Wayne 
County transferred ownership of the 310/358 Properties to the City. Id . On June 16, 2021, My-
Way responded to Sickmann's letter stating that My-Way was still attempting to comply with the 
Building Commission orders (Filing No. 238-6 at 3). 
On July 9, 2021, a City employee accompanied two inspectors to perform a site 
reconnaissance of the 310/358 Properties to determine, among other things, if there were 
Recognized Environmental Conditions that might qualify the City as an innocent landowner 
pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (Filing 
No. 251 at 11). However, the site reconnaissance was limited because access to the majority of the 
main site building was not possible due to the accumulation of plastic debris and storage. Id . 
Reconnaissance was also difficult because Smith kept the 310/358 Properties under lock and key, 
and five million pounds of materials remained in the buildings ( Filing No. 238-1 at 678–685, pp. 
669:8–676:20). 
 
2 A brownfield is an abandoned, idled, or underused industrial and commercial facility/site where expansion of 
redevelopment is complicated by real or perceived environmental contamination. EPA's Brownfields initiative helps 
communities mitigate potential he alth risks and restore the economic viability of such areas or properties. See 
https://cimc.epa.gov/ords/cimc/f?p=121:19::::0:P0_GRANT_ID:69604954 (last accessed June 10, 2026). PageID #:
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The City's Final Technical Report of the site was completed on December 29, 2022, and 
submitted to the EPA (Filing No. 251-10). The Final Technical Report found that Smith's company, 
My-Way Trading, had "created a hostile and potentially unsafe condition for site reconnaissance" 
and "the volume of plastics storage inside and outside of structures complicated reconnaissance 
conditions." Id. at 9. 
On April 11, 2023, the industrial warehouse at the 358 Property—" containing large 
amounts of chipped, shredded, and recycled plastics"—caught fire ( Filing No. 251 at 11). A four-
alarm catastrophic fire alarm was issued, involving the burning of ordinary combustibles, 
petroleum products, energized electrical materials, and combustible metals ( Filing No. 251-11 at 
33, pp. 127:2–15), with the plastics waste and other refuse contributing to the fire. Id . at 42, pp. 
165:14–21. While the cause of the fire may be disputed, Gardner determined the origin to be the 
exterior of the building at the 358 Property, which spread to the 310 Property and the 308 Property 
(Filing No. 251-5 at 6.) As a result of the fire, the Wayne County Emergency Management Agency 
issued an evacuation order of a half -mile radius from the origin of the fire —the 358 Property—
resulting in the evacuation of up to 2,000 individuals (Filing No. 251-5 at 5, pp. 18:19–19:8, Filing 
No. 251-3 at 18). The evacuation order remained in place for five days, ultimately being lifted on 
April 16, 2023. Id. at 6, pp. 24:12–23. The smoke from the fire caused air quality concerns in the 
area and significant disruption to the community. Id. 
The debris from the fire contained asbestos, hydrogen cyanide, benzene, chlorine, and 
carbon monoxide in the evacuation zone (Filing No. 251-13). After people were allowed to return 
to their homes, they were directed to clean the interior of their homes, arrange for the EPA to clean 
the exterior of their properties as it may contain asbestos, and to not mow their lawns or let their 
pets roam freely in their yards until this was completed (Filing No. 251 at 13). Plaintiffs own and PageID #:
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reside in homes that were subject to evacuation as a result of the April 11, 2023 fire (Filing No. 72 
at 4). Craig was injured when he fell off a ladder in late July 2023 while cleaning his home's gutters 
and power washing his white house because of the " dark color" of the homes in the area ( Filing 
No. 251-15 at 26). 
Plaintiffs' alleged damages include the following categories: (a) loss of use of land; (b) 
costs of housing during the fire; (c) lost wages; (d) medical costs for Craig only; (e) home 
repairs/cleaning; (f) groceries, meals, and other purchases required during the fire; (g) pet 
boarding; and (h) pain and suffering/emotional damages ( Filing No. 238 -10 at 124:23–125:5, 
129:19–134:5) (Filing No. 238-11 at 36, 103, 121:6–130:14). 
B. Procedural History 
On April 19, 2023, Craig sent a tort claim notice to the City ( Filing No. 128- 1 at 6). On 
April 20, 2023, the Plaintiffs filed their original Complaint against Cornerstone ( Filing No. 1). 
Stokes also promptly sent a tort claim notice to the City ( Filing No. 128-1 at 10). Plaintiffs filed 
an Amended Complaint adding claims against the City on July 17, 2023, and CTG filed a Third-
Party Complaint against the City in state court (Filing No. 1-2 at 69). That action was removed to 
federal court on September 1, 2023 (Filing No. 1). The City filed a Crossclaim against My Way on 
October 10, 2023 (Filing No. 18). Plaintiffs' motion for leave to file a Second Amended Complaint 
(Filing No. 57), was granted on April 22, 2024 (Filing No. 70). 
Plaintiffs filed the operative Second Amended Class Action Complaint the following day, 
April 23, 2024 ( Filing No. 72). The Second Amended Class Action Complaint alleges that 
"Defendants' tortious conduct of failing to maintain the Industrial Facility and the hazardous 
contents therein set in motion a chain of events resulting in a widespread fire which released 
noxious fumes and hazardous materials including asbestos into the air and ground water of the PageID #:
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surrounding area." Id. at 3. On September 13, 2024, Plaintiffs filed a Motion to Certify Class 
(Filing No. 116), and the several Motions before the Court followed. Plaintiffs' Motion to Certify 
Class was granted on September 29, 2025 (Filing No. 287). 
The Plaintiffs' Second Amended Class Action Complaint allege s the following Counts 
against CTG, Smith, and the City: Count I: Strict Liability (for Ultra-Hazardous Activities); Count 
II: Negligence; Count III: Res Ipsa Loquitur ; Count IV: Private Nuisance; Count V: Trespass; 
Count VI: Battery; and Count VII: Punitive Damages ( see Filing No. 72). The City move d for 
summary judgment on all Plaintiffs' claims against it (Filing No. 237); and Cornerstone moved for 
partial summary judgment, seeking judgment in its favor as to all claims asserted against Smith in 
his individual capacity (Filing No. 232). 
On March 27, 2026, the Court ruled on the City's and Cornerstone's motions for summary 
judgment. The Court dismissed with prejudice Counts I, III, V , and VI against the City (Filing No. 
304 at 60–61). In addition, the Court granted summary judgment in favor of the City for personal 
injury damages requiring expert testimony. However, the Court denied summary judgment for 
Count II: Negligence, and Count IV: Private Nuisance, against the City. Id. at 61. The Court found 
that those claims remained for settlement or trial. Id. In addition, all claims of the Plaintiffs' Second 
Amended Class Action Complaint against CTG and Smith remain. In the pending motions, the 
Defendants seek reconsideration of the S ummary Judgment Order or alternatively, interlocutory 
appeal. Defendants also seek decertification of the class. 
II. LEGAL STANDARD 
A. Motions to Reconsider 
Motions to reconsider "serve a limited function: to correct manifest errors of law or fact or 
to present newly discovered evidence." State Farm Fire & Cas. Co. v. Nokes, 263 F.R.D. 518, 526 PageID #:
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(N.D. Ind. 2009). The motion is to be used "where the Court has patently misunderstood a party, 
or has made a decision outside the adversarial issues presented to the Court by the parties, or has 
made an error not of reasoning but of apprehension." Bank of Waunakee v. Rochester Cheese Sales, 
Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citation omitted). A motion to reconsider under Rule 
54(b) may also be appropriate where there has been "a controlling or significant change in the law 
or facts since the submission of the issue to the Court." Id. (citation omitted). 
The purpose of a motion for reconsideration is to ask the Court to reconsider matters 
"properly encompassed in a decision on the merits." Osterneck v. Ernst & Whinney, 489 U.S. 169, 
174 (1989). The motion "will be successful only where the movant clearly establishes: (1) that the 
court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded 
entry of judgment." Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013) (citation 
and quotation marks omitted). 
Furthermore, 
Motion practice is not an exercise in trial and error or maybe -maybe not where a 
party can reserve arguments to present later if earlier ones fail. The Court is entitled 
to assume that, if [a party] had viable arguments to support its claim, it would have 
presented them. The Court will not conduct [a party's] research and build [the 
party's] analysis in order to find facts and law to support [the party's] own claims. 
 
Brownstone Publ'g, LLC v. AT&T, Inc., No. 07-cv-1630, 2009 U.S. Dist. LEXIS 25485, at *2 (S.D. 
Ind. Mar. 24, 2009). A motion to reconsider "is not an opportunity to relitigate motions or present 
arguments, issues, or facts that could and should have been presented earlier." Id. 
B. Motions to Decertify a Class 
Federal Rule of Civil Procedure 23(c)(1)(C) provides that orders determining whether to 
certify an action as a class action "may be altered or amended before final judgment." "[A] district 
court has broad discretion to determine whether certification of a class is appropriate." Retired Chi. PageID #:
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Police Ass'n v. City of Chi. , 7 F.3d 584, 596 (7th Cir. 1993). Under Rule 23(c)(1)(C), the Court 
retains authority to modify or vacate a class certification at any time prior to final judgment. "[T]he 
district court has the power at any time before final judgment to revoke or alter class certification 
if it appears that the suit cannot proceed consistent with Rule 23's requirements." All . to End 
Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977). "Even after a certification order is 
entered, the judge remains free to modify it in the light of subsequent developments in the 
litigation." Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982). 
On one hand, " a favorable class determination by the court is not cast in stone. If the 
certification of the class is later deemed to be improvident, the court may decertify, subclassify, 
alter the certification, or permit intervention." Eggleston v. Chi . Journeymen Plumbers' Local 
Union No. 130, 657 F.2d 890, 896 (7th Cir. 1981) (citations omitted); see also Ellis v. Elgin 
Riverboat Resort, 217 F.R.D. 415, 419 (N.D. Ill. 2003) ("The court's initial certification of a class 
'is inherently tentative.'" (citation modified)). "[W]hen a defendant moves to decertify a class, 'a 
district court must make whatever factual and legal inquiries are necessary to ensure that 
requirements for class certification are satisfied before deciding whether a class should [remain] 
certified, even if those considerations overlap the merits of the case.'" Jacks v. DirectSat USA, 
LLC, 118 F.4th 888, 895 (7th Cir. 2024) (alteration in original) (quoting Am. Honda Motor Co. v. 
Allen, 600 F.3d 813, 815 (7th Cir. 2010)). 
On the other hand, courts are generally reluctant to reconsider and modify previous orders, 
even in the class certification context, in part because of the law-of-the-case doctrine and to avoid 
costly delays to the proceedings. Outzen v. Kapsch Trafficcom USA, Inc., 20- cv-1286, 2022 WL 
4259675, at *2 (S.D. Ind. Sept. 15, 2022) (citing 3 Newberg & Rubenstein on Class Actions § 7:35 
(6th ed.)). "Rule 23(c)(1) . . . is not a Trojan Horse by which [a party] may endlessly reargue the PageID #:
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legal premises of their motion." Gardner v. First Am. Title Ins. Co., 218 F.R.D. 216, 218 (D. Minn. 
2003); see also Jaynes v. United States, 69 Fed. Cl. 450, 453 (2006). "[I]n the absence of materially 
changed or clarified circumstances, the Court cannot condone a series of rearguments on the class 
issues by either the proponent or the opponent of the class." Barron v. Paycor, Inc., No. 20-cv-264, 
2026 WL 431363, at *2 (S.D. Ill. Feb. 16, 2026) (cleaned up). 
III. DISCUSSION 
Before the Court are two Motions: a Motion for Reconsideration of the Summary Judgment 
Order or In the Alternative, a Motion to Certify the Order for Interlocutory Appeal; and a Motion 
to Decertify the Class; both filed by the City and joined by My- Way. The City argues in its 
decertification motion that the March 27, 2026 Summary Judgment Order (Filing No. 304), 
materially changed the class certification analysis , so the class should be decertified ( Filing No. 
309 at 14). The City also asks the Court to reconsider the Summary Judgment Order. The Court 
will address the Motion to Reconsider before turning to the Motion to Certify the Order for 
Interlocutory Appeal and the Motion to Decertify the Class. 
A. Motion for Reconsideration 
The City presents three arguments (which the Court will address in turn) why the Court 
should reconsider the Summary Judgment Order , in so far as it denied summary judgment for 
Count II: Negligence, and Count IV: Private Nuisance, against the City. The City argues that the 
Court (1) erroneously imposed a duty that Indiana law does not recognize, (2) erroneously imposed 
nuisance liability that Indiana law does not recognize, and (3) even if the Court w ere correct to 
impose such duty and liability, the City cannot be liable because it is immune under the Indiana 
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1. Count II: Negligence 
The City premises its Motion on the assertion that the Summary Judgment Order allowed 
the negligence claim to proceed "based on the City's mere ownership" of the 310/358 Properties 
(Filing No. 313 at 2, 6–7, 10). The City contends that the negligence claim turns on whether, under 
Indiana law, a municipality may be held to owe a duty based on ownership of property and 
knowledge of a hazardous condition, notwithstanding the absence of control over the premises or 
any qualifying relationship with the third party responsible for the alleged hazard. Id . at 6. The 
City argues that in cases involving real estate, the dispositive inquiry is control over the premises 
rather than mere ownership. 
The City then contends that Indiana law does not impose a duty to control the conduct of 
third parties absent a qualifying relationship. Id. at 8. The City concludes that because of this, the 
factors announced in Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991) relied upon in the Summary 
Judgment Order, are inapplicable. The City argues that the Court's determination that the 
accumulation of plastic on the property via a trash recycling business was an activity on the land 
rather than a condition is incorrect. And regardless of whether the accumulation of plastics on the 
City's property is classified as an activity or condition, the harm arose from the conduct of a third 
party, My-Way, and thus, Indiana law does not impose a duty on the City. 
In their response brief, the Plaintiffs point out that the City's Motion repeatedly 
characterizes the Summary Judgment Order as imposing liability based on "mere ownership" of 
property. The Plaintiffs contend that this characterization of the Summary Judgm ent Order is 
incorrect, and the Court instead applied Indiana law to the developed summary judgment record 
and found that Plaintiffs' negligence and nuisance claims could proceed because the City owned 
the 310/358 Properties, had actual knowledge of a long-standing fire hazard, knew that a fire could PageID
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result in neighborhood evacuation and property disruption, and failed to take effective action to 
abate that danger (Filing No. 315 at 6). 
The Plaintiffs note that the Court rejected on summary judgment the very framing the City 
now repeats—that the City cannot be liable because it was not in possession or control of the 
310/358 Properties and because My-Way retained physical control. The Plaintiffs contend that the 
City's Motion therefore does not identi fy any legal error in the Court's reasoning, but rather, 
substitutes the City's preferred factual characterization for the record the Court actually considered. 
Id. at 7–8. 
In its reply brief, the City again asserts that it had no possession or control, so the Court 
should not have used the Webb v. Jarvis factors (Filing No. 317 at 5). 
At the outset, the Court clarifies that the City's Motion is based on a misunderstanding of 
the Summary Judgment Order. To be clear, the Court did not hold that the law impose s a duty 
based on "mere ownership" of the 310/358 Properties. Indeed, the City made this exact same 
argument in its summary judgment briefing (Filing No. 241 at 25–27). The Court considered and 
rejected those arguments , instead finding that the designated evidence —the unsafe -building 
proceedings that addressed both the possibility of a fire event requiring a multi -agency response 
and possible evacuations , and an air plume study reflecting concerns for evacuation if a fire 
occurred—showed that the City had actual knowledge of both My- Way's failure to maintain the 
properties and the foreseeable possibility of ash, soot, and dislocation damages to nearby residents 
(Filing No. 304 at 16–17). 
Moreover, the Court found many of the cases the City now cites to be inapplicable because 
the Plaintiffs were not invitees; at no point did any of the Plaintiffs step onto the 310/358 
Properties. Accordingly, the Court found that premises liability principles—which impose a duty PageID
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to maintain property in a reasonably safe condition for business invitees, see Podemski v. Praxair, 
Inc., 87 N.E.3d 540, 547 (Ind. Ct. App. 2017) —are not applicable to this case ( Filing No. 304 at 
14). The Court correctly analyzed whether the City owes a duty to Plaintiffs under the factors first 
enumerated in Webb v. Jarvis. 
The City's Motion to Reconsider essentially attempts to relitigate issues already determined 
by the Court and substitute its version of the Court's ruling. The City contends that the Court 
accepted as undisputed that My-Way alone controlled the properties and held that Plaintiffs' claims 
could proceed solely because of mere ownership. As previously stated, this was not the Court's 
ruling. Instead, the Summary Judgment Order held that Plaintiffs had designated evidence 
sufficient to permit a jury to decide w hether the City's own conduct as property owner, including 
actual knowledge of a foreseeable harm, contributed to the foreseeable harm caused by the fire. 
On summary judgment a court may not make credibility determinations, weigh the 
evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder. Rather, 
the court has one task and one task only: to decide, based on the evidence of record, whether there 
is any material dispute of fact that requires a trial. See Johnson v. Advoc. Health & Hosps. Corp., 
892 F.3d 887, 893 (7th Cir. 2018). And where there is a material dispute of fact, as there is here, 
summary judgment is not appropriate. The City has provided no grounds on which the Court 
committed a manifest error of law , and a motion to reconsider is not an opportunity to simply 
relitigate matters previously before the Court. Accordingly, the Motion to Reconsider is denied as 
to Count II: Negligence of the Plaintiffs' Second Amended Class Action Complaint. 
2. Count IV: Private Nuisance 
The City contends that it cannot be held liable for nuisance because My- Way created the 
hazardous condition and physically occupied the property (Filing No. 313 at 11). The City asserts PageID
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that the Court recognized that a private nuisance arises when it has been demonstrated that one 
party has used his property to the detriment of the use and enjoyment of another's property, but the 
Court erroneously concluded that the City's conduct could create a nuisance because it did not use 
its property. The City explains that even where a qualifying relationship exists, liability depends 
on whether the owner participated in or consented to the condition giving rise to the alleged 
nuisance which can be shown where a lease or agreement permits the use that necessarily results 
in a nuisance, or where the owner has actual knowledge of the condition and consents to its 
continuation. Id. at 13. The City asserts that Indiana law is well settled that where the alleged 
nuisance arises from the manner in which a third party uses property, the owner cannot be liable 
based on ownership alone. 
In their response brief, Plaintiffs contend that the City once again substitutes its "no 
control" argument for the holding of the Court (Filing No. 315 at 11–12). The Plaintiffs assert that 
the fact that My-Way may have contributed to the issue does not eliminate the City's responsibility 
to abate a known fire hazard , nor does My-Way's involvement establish, as a matter of law, that 
the City lacked any legally meaningful control. Id. Plaintiffs point out that the Court did not create 
a broad rule that all municipal property ownership creates nuisance liability. Rather, the Court held 
only that, on this record, Plaintiffs designated enough evidence for a reasonable jury to decide 
whether the City's failure to remediate known hazardous conditions on its own property interfered 
with Plaintiffs' use and enjoyment of their homes. Id. at 13. 
The City's reply brief reasserts its argument that it is not liable in nuisance because it did 
not use its property (Filing No. 317 at 6). The City also contends that its lack of relationship with 
My-Way compels reconsideration of Plaintiffs' nuisance claims. Id. PageID
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Here, as with the negligence claim, the City misunderstands the Court's nuisance 
determination. The Court did not create a broad rule that ownership alone can be the basis of 
nuisance liability. Rather, the Court found Plaintiffs' designated evidence showed that for over two 
years, the City owned the 310/358 Properties and allowed combustible materials in tremendous 
volume to remain without fire suppression and limited access to egress and fire lanes ( Filing No. 
304 at 26). The designated evidence also show s that the City knew of and was warned of the 
potential for a large -scale fire resulting in evacuation of the surrounding area. The Court 
determined that pursuant to this record, the issue of nuisance "is a question for the trier of fact 
because a reasonable jury could conclude that the City's failure to remedy a known fire hazard for 
more than two years resulting in a large -scale fire dislocating Plaintiffs from their homes could 
constitute a private nuisance." Id. at 26–27. The City has provided no grounds on which the Court 
committed a manifest error of law. 
Moreover, the City is simply repeating arguments the Court already considered at summary 
judgment. The City argued in its summary judgment briefing that it did not engage in any activity 
beyond communicating with My- Way and thus could not be held liable for nuisance ( Filing No. 
241 at 31). As previously stated, reasserting the same arguments the Court rejected is not grounds 
for reconsideration. Accordingly, the Motion for Reconsider is denied as to Count IV: Private 
Nuisance, as well. 
3. Indiana Tort Claims Act ("ITCA") 
The City asserts that the Court erred because it should have applied the immunities 
provided by the ITCA, codified at Ind. Code §§ 34-13-3-0.1–25 (Filing No. 313 at 15). 
Specifically, the City contends that the Court should have applied immunity under Section 34-13-
3-3(a)(8) and (10). Id. PageID
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a. Section 34-13-3-3(a)(8) 
Indiana Code § 34-13-3-3(a)(8) grants immunity from claims against a governmental entity 
for the adoption and enforcement of or failure to adopt or enforce any law, including rules and 
regulations. The City argues that the allegations against the City are based on a failure to enforce 
laws against My-Way, but the Court nonetheless found that this provision did not apply (Filing No. 
313 at 15). The City contends that in doing so, the Court conflated a duty analysis for negligence 
with this specific ITCA immunity, which was an error, as the immunity analysis should be separate 
and distinct from that duty analysis. Id . (citing Henshilwood v. Hendricks County , 653 N.E.2d 
1062, 1065 (Ind. Ct. App. 1995)). 
The City points to the Plaintiffs' Second Amended Class Action Complaint referencing the 
Defendants' disregard of Building Commission orders and failure to comply therewith. The City 
also points to the Plaintiffs' Statement of Claims asserting that the City failed to remediate fire 
hazards and unsafe conditions that were subject to orders to remediate. 
The City then points to the Court's statements that "the City did not have exclusive control 
and management of the injuring instrumentality," "My-Way kept the 310/358 Properties under lock 
and key," and "the injuring instrumentality occurred due to My- Way's plastic business[,]" (Filing 
No. 304 at 25), arguing that the Court found the undisputed facts establish My- Way's control of 
the 310/358 Properties. The City contends that without control, the only avenue for the City to 
protect Plaintiffs from the harm of the fire or to abate the nuisance was to initiate another legal 
action to enforce the Building Commission orders. 
The City then argues the Court's conclusion that the Building Commission orders were not 
orders "that fall within the scope of the City's purpose or operational power as a landowner," (Filing 
No. 304 at 37 (citing Johnson v. Marion Cnty. Coroner's Off., 971 N.E.2d 151, 157–58 (Ind. Ct. PageID
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App. 2012) (internal quotation marks and citation omitted)), is incorrect because those orders fall 
precisely within the City's purpose and operational power. The City asserts that it was the City of 
Richmond Fire Department that inspected the 310/358 Properties and the City of Richmond's 
Building Commission that issued the orders pertaining to the 310/358 Properties ( Filing No. 313 
at 18). 
The Plaintiffs respond that the City, just as it did in its summary judgment briefing, argues 
that Plaintiffs' claims are barred because they arise from the City's failure to enforce laws against 
My-Way. However, that is not the Plaintiffs' theory. Rather, Plaintiffs' theory is that the City owned 
the 3 10/358 Properties, knew they contained dangerous combustible materials, knew those 
conditions posed a serious fire and evacuation risk, and failed to take reasonable action as owner 
to abate or prevent the hazard from remaining on its land (Filing No. 315 at 14). The Plaintiffs then 
point out that the Court already rejected the City's attempt to transform that landowner-negligence 
theory into a regulatory-enforcement claim. 
Plaintiffs assert that the existence of the Building Commission orders, fire-code violations, 
or other enforcement mechanisms does not mean the City's only relevant role was regulatory. 
Plaintiffs assert that a municipality that owns property does not become immune from ordinary 
tort duties simply because the dangerous condition on its property also violates laws or local orders. 
If that were the rule, governmental entities could avoid landowner liability whenever a known 
hazard also happens to be code violative. Id. at 14–15. 
Plaintiffs also contend that the City's arguments prove too much. Id . at 15. Such position 
would mean that once a municipality identifies a dangerous condition through official proceedings, 
any later claim based on that same condition must be treated as a failure-to-enforce claim, even if 
the municipality owns the property and has authority to address the hazard as owner. That would PageID
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collapse the distinction between regulatory enforcement and proprietary responsibility. Plaintiff's 
argue that the Court properly refused to do so. Id. at 15. The Court agrees. 
Once again, the City mistakenly asserts that the Court concluded that it is undisputed that 
the City lacked any control over the 310/358 Properties. The Court's statement that the City did 
not have exclusive control does not mean that the City had absolutely no ability to do anything 
beyond either enforcing the Building Commission orders or waiting until the inevitable fire caused 
a mass-scale evacuation. Indeed, the City takes the Court's statement out of context in another 
attempt to substitute the record for its argument. 
The Court concluded that "Plaintiffs' invocation of res ipsa loquitur cannot succeed 
because the city did not have exclusive control and management of the injuring instrumentality." 
(Filing No. 304 at 25). However, the preceding language contained in the Summary Judgment 
Order explains that for res ipsa cases, a plaintiff must prove that the defendant had exclusive 
control of the injuring instrumentality and therefore only the defendant could be liable for the 
occurrence. See id. at 24–25. In other words, the Court could not (and did not) conclude that the 
City was the only entity with control over the 310/358 Properties. But stating that the City does 
not have exclusive control does not equate to saying it has no control. Such an assertion is an 
overextension of the Summary Judgment Order. 
Moreover, the existence of the Building Commission orders does not cause Plaintiffs' 
landowner liability claims to transform into governmental regulatory claims. Indeed, the City 
reasserts the same arguments it made in its summary judgment briefing. The Court already rejected 
those arguments stating that "the mere fact that the Building Commission orders were issued 
against My-Way does not lead to the conclusion that Plaintiffs' claims concern the City's failure to PageID
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enforce the Building Commission orders." Id . at 37. Rather, the Building Commission orders 
simply establish the City's knowledge of the fire hazard and nuisance. 
As stated in the Summary Judgment Order, the crux of Plaintiffs' Second Amended Class 
Action Complaint is that the City failed to use reasonable care and allowed a known fire hazard to 
persist on property it owned despite years of notice and opportunities to remedy the danger. The 
Plaintiffs' claims are not based on the Building Commission orders and any enforcement and 
failure thereof. Accordingly, because the Court has already addressed the City's arguments and the 
Court finds no manifest error of law, the Motion to Reconsider is denied as to this immunity 
provision of the ITCA. 
b. Section 34-13-3-3(a)(10) 
The City argues it is immune from liability under Indiana Code § 34-13-3-3(a)(10) because 
the fire and resulting damages were due to the action of My-Way. Indiana Code § 34-13-3-3(a)(10) 
provides immunity for the act or omission of anyone other than the governmental entity or the 
governmental entity's employee. The City argues that the Court's conclusion—that Plaintiffs' 
claims against the City are separate and distinct from the claims aga inst My-Way—is erroneous 
(Filing No. 313 at 19). It was My -Way who exerted possession and control over the 310/358 
Properties and accumulated combustible materials on the 310/358 Properties, and the City did not 
perform any act concerning the 310/358 Properties beyond reconnaissance. Id . at 20. The City 
contends that Plaintiffs' claims squarely address the actions of My- Way and the inactions by the 
City. Thus, the City is entitled to immunity because the fire and resulting damages were due to the 
act or omission of anyone other than the governmental entity or the governmental entity's 
employee—namely, My -Way. Id. at 21. PageID
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In their response brief, the Plaintiffs assert that their claims against the City are separate 
and distinct from their claims against My -Way (Filing No. 315 at 15). The Plaintiffs argue their 
claims against the City are premised upon the City owning the 310/358 Properties for more than 
two years before the fire and knowing that the 310/358 Properties posed a fire hazard, were a 
nuisance, and that a fire at the 310/358 Properties could result in multi-agency emergency response 
and possible evacuation. Id. 
Plaintiffs also argue that the City's proposed interpretation of Section 34- 13-3-3(a)(10) is 
far broader than the text permits, and were the Court to accept the City's interpretation, nearly 
every negligence case involving a governmental entity could invol ve some third- party conduct. 
Plaintiffs assert the City's interpretation is incorrect because a governmental defendant is not 
immune from its own negligence merely because another tortfeasor also contributed to the injury. 
Id. at 16. The Court agrees. 
Here, not only is the City reciting the same arguments it did at summary judgment, but 
those arguments are also incorrect. The Plaintiffs' claims against the City are based on the City's 
own inaction—which the City accurately points out. But the alleged negligence and nuisance 
claims against the City are wholly independent of the negligence of My-Way. The City may argue 
to a jury that My-Way is the sole party responsible for the Plaintiffs injuries and that the City in no 
way contributed to or exacerbated t he harms. However, that is a causation argument, not an 
immunity defense. 
Disagreement with the Court is not grounds for reconsideration and even if it were, the 
Court committed no manifest error of law. Accordingly, the Motion to Reconsider is denied as to 
this immunity. PageID
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Having concluded that the Court made no manifest error of law, the Motion to Reconsider 
is denied. 
B. Motion to Certify the Order for Interlocutory Appeal 
The City next asks the Court to certify the Summary Judgment Order for interlocutory 
appeal pursuant to 28 U.S.C. § 1292(b) (Filing No. 313 at 21). To certify an order for interlocutory 
appeal that is not otherwise appealable, the Court must make three findings: (1) that the "order 
involves a controlling question of law"; (2) "to which there is substantial ground for difference of 
opinion"; and (3) "that an immediate appeal from the order may materially advance the ultimate 
termination of the litigation." 28 U.S.C. § 1292(b). 
The City contends that its challenges to the Order meet all three standards. However, the 
Court need not move beyond the first , as the City's challenge does not involve a controlling 
question of law. On this standard, the City states that, "[t]he specific question for appeal will be 
whether a municipality, such as the City, owes a duty to the general public based solely on 
ownership of property, notwithstanding the municipality's absence of control over the property or 
any qualifying relationship with the party responsible for the alleged hazard." ( Filing No. 313 at 
22). As the Court has explained above, the City patently misunderstands the Summary Judgment 
Order and substitutes its argument for the Court's reasoning. 
The Court did not hold that the City could be liable "based solely on ownership of 
property." The Court rejected such an argument —which the City made many times at summary 
judgment—and instead, held that, on this record, a reasonable jury could conclude that the City is 
liable for failing to abate a known fire hazard and nuisance ( Filing No. 304 at 21). The Court 
further held that a reasonable jury could also conclude that the City's single demand letter was 
sufficient action. Id. Nonetheless, the Court's holding was based on specific evidence that the City PageID
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owned the 310/358 Properties for more than two years before the fire, was actually aware of the 
fire hazard and nuisance on its property, was aware that a fire could lead to a mass-scale evacuation 
of the surrounding area, and only demanded once that My- Way vacate the premises but failed to 
do anything beyond that. Id. 
The City's proposed question for appeal is therefore premised on a misunderstanding of the 
Summary Judgment Order. Accordingly, interlocutory appeal is inappropriate, and the City's 
Motion is denied. 
C. Motion to Decertify Class 
As stated above, under Rule 23(c)(1)(C) the Court retains authority to modify or vacate a 
class certification at any time prior to final judgment. "[T]he district court has the power at any 
time before final judgment to revoke or alter class certification if it appears that the suit cannot 
proceed consistent with Rule 23's requirements." Rochford, 565 F.2d at 977. While district courts 
have broad discretion on whether or not to certify a class, the Seventh Circuit has made clear that 
an order withdrawing cl ass certification must provide a reasoned Rule 23 analysis sufficient to 
permit review; generalized concerns about individualized proof do not suffice where the disputed 
issue remains capable of common resolution. Red Barn Motors, Inc. v. NextGear Capital, Inc., 915 
F.3d 1098, 1101–03 (7th Cir. 2019) (vacating district court's decision to decertify after finding the 
decision lacked sufficient reasoning). 
Accordingly, the Court will reanalyze the record under Rule 23's requirements keeping in 
mind that "in the absence of materially changed or clarified circumstances, the Court cannot 
condone a series of rearguments on the class issues by either the proponent or the opponent of the 
class." Barron, 2026 WL 431363, at *2 (cleaned up). PageID
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To certify a class under Rule 23, Plaintiffs must satisfy four prerequisite requirements of 
Rule 23(a): numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a)(1)–(4). Before 
evaluating the Rule 23 requirements, the Court must first determ ine whether the class is 
identifiable. Oshana v. Coca Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). A class is identifiable if 
class membership can be readily determined by reference to objective criteria. Jamie S. v. 
Milwaukee Pub. Schs ., 668 F.3d 481, 496 (7th Cir. 2012). If successful in that regard, Plaintiffs 
must overcome the final hurdle by showing that the circumstances of their case fit one of the three 
"types" of class actions which Rule 23(b) defines. The Court previously certified the class pursuant 
to Rule 23(b)(3). 
Where certification is sought under Rule 23(b)(3), Plaintiffs must show that questions of 
law or fact common to the members of the proposed class predominate over any questions affecting 
only individual class members and that a class action is the superior method of resolving the 
controversy. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). A party 
seeking class certification bears the burden of demonstrating that certification is appropriate by a 
preponderance of the evidence. Id. The determination of whether to certify a proposed class is 
within the broad discretion of the district court. Retired Chi. Police Ass'n. , 7 F.3d at 596. While 
consideration of class certification is not "a dress rehearsal for the trial on the merits," the court 
"must 'receive evidence . . . and resolve the disputes before deciding whether to certify the class.'" 
Messner, 669 F.3d at 811 (omission in original) (quoting Szabo, 249 F.3d at 676). 
The Court previously certified the following class: Those persons who resided within a 
half-mile radius evacuation zone around the fire at 358, 310, and 308 NW F Street from April 11 
through April 16, 2023 (the "Class") (Filing No. 287 at 7). The Court then certified two subclasses: 
the Owner Subclass and Non-Owner Subclass. Id. The City now moves to decertify the Class. PageID
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The City does not challenge that the Class is sufficiently identifiable, and the Court sees 
no reason or change in circumstances that would undermine its previous finding. Accordingly, the 
Court finds that the Class is still sufficiently identifiable via p roperty records for the Owner 
Subclass and leases, rental agreements, and tax records for the Non-Owner Subclass. 
1. Rule 23(a) Requirements 
The City contends that the Plaintiffs cannot meet their burden of satisfying the Rule 23(a) 
requirements (Filing No. 309 at 10). Pursuant to Rule 23, the named parties of a class of plaintiffs 
may sue on behalf of all members of a class 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. 
 
Fed. R. Civ. P. 23(a). Although Plaintiffs ultimately bear the burden of showing that the Rule 23 
requirements are met, this Court must engage in its own "rigorous analysis" to ensure that 
certification is appropriate. See Santiago v. City of Chi., 19 F.4th 1010, 1016 (7th Cir. 2021). Each 
of the subclasses must independently meet the requirements of Rule 23(a). See Fed. R. Civ. P. 
23(c)(5); Johnson v. Meriter Health Servs. Emp. Ret. Plan, 702 F.3d 364, 368 (7th Cir. 2012) ("[A]s 
long as each subclass is homogeneous, in the sense that every member of the subclass wants the 
same relief, and each subclass otherwise satisfies the requirements for certifying a class, so that 
each could be the plaintiff class in a separate class action, there is no objection to combining them 
in a single class action."). The Court will address each Rule 23(a) element in turn. PageID
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a. Numerosity 
"Mere allegations that a class action would make litigation easier for a plaintiff are not 
enough to satisfy Rule 23(a)(1)." Anderson v. Weinert Enters., Inc., 986 F.3d 773, 777 (7th Cir. 
2021). The rule requires that "the class must be so numerous that joinder of all class members is 
impracticable." Jones v. Blinziner , 536 F. Supp. 1181, 1189 (N.D. Ind. 1982). "While 
'impracticable' does not mean 'impossible,' a class representative must show 'that it is extremely 
difficult or inconvenient to join all the members of the class.'" Anderson, 986 F.3d at 777 (quoting 
7A Wright & Miller's Federal Practice & Procedure § 1762 (3d ed.)). 
In the Seventh Circuit, "a forty- member class is often regarded as sufficient to meet the 
numerosity requirement," though the proper focus should be the "practicability of joinder" rather 
than the number of putative class members. Id . This determination requires evaluation of "'the 
nature of the action, the size of the individual claims, and the location of the members of the class 
or the property that is the subject matter of the dispute.'" Id. (quoting 7A Wright & Miller's Federal 
Practice & Procedure § 1762 (3d ed.)). 
The City contends that the Court relied on Plaintiffs' citation to an unauthenticated report 
suggesting that 2,000 residents evacuated and not ing that 2,000 was more than double the 863 
properties the plaintiffs sought to certify in Denney in its class certification order (Filing No. 309 
at 12). The City contends that the Plaintiffs never deposed the author of the report and instead 
deposed Jonathan Duke, deputy director of Wayne County Emergency Management Agency, who 
testified that he did not personally believe that 2,000 people were evacuated. Id. (citing Filing No. 
309-1 at 6 pp. 15:21–25). The City argues that Plaintiffs' counsel admitted on the record, " The 
number was thrown around a lot, but how specific or how accurate it was, we don't know." Id . PageID
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(quoting Filing No. 309-1 at 15 pp. 53:6–8)3 The City also contends that Jonathan Duke testified 
that he "personally saw people inside the evacuation zone." Id. (quoting Filing No. 309-1 at 13 pp. 
42:3–7). 
The City contends that Plaintiffs' counsel has admitted to not knowing how many people 
were evacuated and the only reason for the estimated 2,000- person number was inadmissible 
hearsay. The City concludes by proffering that the Court's prior class certific ation order did not 
address the fact that 150 individuals initiated their own action based on the facts of this case , and 
that action remains pending in state court. Id. at 13. 
The Plaintiffs respond that the City's arguments rest on the false premise that Plaintiffs 
must prove the exact number of people who were physically evacuated before the class may 
proceed when Rule 23 does not impose such a requirement (Filing No. 314 at 8). Plaintiffs contend 
that the City overstates Jonathan Duke's testimony because even though he said he did not 
personally believe 2,000 people evacuated, he subsequently testified that there were "possibly 
2,000 people impacted[,]" but did not have personal knowledge of the figure cited in the incident 
report which stated that "the fire forced the evacuation of over 2,000 people from their homes." Id. 
at 8–9 (quoting Filing No. 309-1 at 6 pp. 15:21–25; Filing No. 122-3 at 18). 
The Plaintiffs note that they listed the author of the incident report , State Fire Marshal 
Joseph Tanasovish, on their witness list, and he intends to testify directly regarding his knowledge 
of the relevant events. Plaintiffs contend that the City cannot convert an evidentiary objection to 
one portion of the record into a basis for vacating certification. Id. at 9. 
The Plaintiffs argue that the Class is tied to residences within the evacuation zone; not the 
number of people who were physically forced from their homes by police. Id . at 10. They assert 
 
3 The Court notes that counsel's proposed admission was not testimonial, but rather a comment made preceding a 
question being asked during Jonthan Duke's deposition (See Filing No. 309-1 at 15 pp. 53:6–8). PageID
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that the City's arguments that the evacuation was not mandatory because officials did not drag 
residents out, arrest noncompliant residents, or erect barriers at every point of entry is beside the 
point. Rather, the fact that an emergency evacuation order was issued to residents and persons 
within a residential half-mile radius is what matters for numerosity. Id. 
The City replies that Plaintiffs have failed to meet their burden because they have offered 
no admissible evidence to establish the numerosity of the Class—exactly or generally ( Filing No. 
316 at 4). The City argues that the Court is required to consider Jonathan Duke's testimony, and 
the Plaintiffs cannot simply state that Joseph Tanasovich will be called at trial. Rather, they must 
provide the Court with admissible evidence as to numerosity. Lastl y, the City contends that the 
150-person mass action in state court proves that joinder is practical. Id. at 6. 
Upon consideration of both parties arguments, the Court finds that numerosity is still 
satisfied and the personal belief from one individual that 2,000 people did not actually evacuate is 
not enough to warrant overturning the Court's previous finding.
4 As Plaintiffs point out, their 
claims are not based on being dragged out of their homes or arrested for not complying with an 
emergency evacuation order. 
In addition, the Plaintiffs intend to call Joseph Tanasovich to testify about his personal 
knowledge of the figure , and whose incident report states that "the fire forced the evacuation of 
over 2,000 people from their homes." ( See Filing No. 122- 3 at 18). Moreover, Jonathan Duke 
testified that it was possible that 2,000 people were impacted ( Filing No. 309- 1 at 6 pp. 15:25–
16:1). Accordingly, even if the incident report is hearsay, the very testimony the City now relies 
 
4 The designated evidence shows as a result of the fire, the Wayne County Emergency Management Agency issued an 
evacuation order of a half -mile radius from the origin of the fire —the 358 Property— resulting in the evacuation of 
up to 2,000 individuals (Filing No. 251-5 at 5, pp. 18:19–19:8, Filing No. 251-3 at 18). The evacuation order remained 
in place for five days, ultimately being lifted on April 16, 2023. Id. at 6, pp. 24:12–23. The smoke from the fire caused 
air quality concerns in the area and significant disruption to the community. Id. PageID
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on indicates that 2,000 individuals may have been impacted by the fire. The circumstances in 
which the Court previously found numerosity satisfied have not changed. Numerosity therefore 
remains satisfied. 
b. Commonality 
To satisfy the commonality requirement, the claims of the proposed class members "must 
depend upon a common contention that is capable of class-wide resolution." Chi. Teachers Union, 
Local No. 1 v. Bd. of Educ. of City of Chi., 797 F.3d 426, 434 (7th Cir. 2015). A "common nucleus 
of operative fact" generally fulfills this requirement. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th 
Cir. 1992). This common nucleus is typically found "where the defendant has engaged in some 
standardized conduct toward the proposed class members." Mejdreck v. Lockformer Co., No. 01 C 
6107, 2002 U.S. Dist. LEXIS 14785, at *8–9 (N.D. Ill Aug. 12, 2002), aff'd sub nom., Mejdrech v. 
Met-Coil Sys. Corp., 319 F.3d 910 (7th Cir. 2003). 
The City contends that for Plaintiffs to meet their burden on this prerequisite, there must 
be a more specific common issue than, "[w]ere the [d]efendants negligent?" (Filing No. 309 at 13 
(quoting Jamie S., 668 F.3d at 497)). Rather, Rule 23(a)(2) requires a common answer capable of 
resolving "an issue that is central to the validity of each one of the claims in one stroke." Id . 
(quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). 
The City contends that there is not a common answer that will resolve an issue that is 
central to the validity of each one of the claims in one stroke because the Summary Judgment 
Order dismissed some of Plaintiffs' claims against the City. The City asserts that because the Court 
dismissed Plaintiffs' strict liability, res ipsa loquitur, trespass, and battery claims against the City 
but those claims remain against Cornerstone, there cannot be a resolution of a central issue in one 
stroke. Id. at 14. PageID
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Plaintiffs respond that under Rule 23(a)(2), they need not show that every issue is common, 
but rather that the class claims depend upon a common contention capable of class wide resolution, 
"which means that determination of its truth or falsity will reso lve an issue that is central to the 
validity of each one of the claims in one stroke." ( Filing No. 314 at 11 (quoting Lacy v. Cook 
County, 897 F.3d 847, 865 (7th Cir. 2018) (citation omitted))). 
Plaintiffs note that the City's Motion identifies no relevant development since the Court 
considered this issue and misapprehends the standard by focusing on asserted differences among 
class members' experiences and damages, while ignoring the central, uni fying issues that will 
resolve liability. Plaintiffs assert that the claims of every class member arise from the same discrete 
event and turn on the same course of conduct by the same Defendants. Id. at 12. 
The City replies that other courts have decertified classes specifically on nuisance claims 
like Plaintiffs' (Filing No. 316 at 7). The City contends that because nuisance contains subjective 
elements, the claims are not common or typical to all members of the Class. The Court disagrees. 
The Court previously found that commonality was satisfied because for the Class members 
to recover, they will all need to prove that Defendants were negligent or otherwise liable in the 
way they handled combustible materials and allowed the fire to occur, thus requiring common 
answers ( Filing No. 287 at 15). The Court further found that the inevitability that some class 
members may have different damages does not disturb a finding of commonality. Id. 
Here, nothing has changed, and the Court once again finds that commonality is satisfied. 
The Class members will still all need to prove that Defendants were negligent or otherwise liable 
in the way they handled combustible materials and allowed the fire to occur. The fact that the Court 
dismissed some of Plaintiffs' claims against the City does nothing to undermine the Court's 
previous finding. Accordingly, commonality is satisfied. PageID
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c. Typicality 
"A claim is typical if it 'arises from the same event or practice or course of conduct that 
gives rise to the claims of other class members and . . . [plaintiffs'] claims are based on the same 
legal theory.'" Oshana, 472 F.3d at 514. "Although '[t]he typicality requirement may be satisfied 
even if there are factual distinctions between the claims of the named plaintiffs and those of other 
class members,' the requirement 'primarily directs the district court to focus on whether the named 
representatives' claims have the same essential characteristics as the claims of the class at large.'" 
Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009) (alteration in original) (quoting De La 
Fuente v. Stokely-Van-Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)). 
The City argues that Plaintiffs cannot show typicality for the same reason they cannot show 
commonality—Class members have different legal causes of action, legal theories, and damages 
requests pending against three different types of Defendants (Filing No. 309 at 14). The City likens 
this case to Millman v. United Techs. Corp., No. 16- cv-312, 2019 WL 6112559, at *5 (N.D. Ind. 
Nov. 18, 2019), where a district court found that the legal theories asserting in that case—such as 
negligence, trespass, nuisance, and state law claims —were not universally applicable to all 
proposed class members. Id. at *4. 
Plaintiffs respond that the Court already rejected the City's attempts to defeat typicality by 
focusing on differences in damages (Filing No. 314 at 13). Plaintiffs note that the Court explained 
in its class certification order that Defendants were "focus[ing] on the typicality of damages rather 
than the claims," and held that the Plaintiffs' claims were typical because the two subclass 
members' claims "all rely on the same legal theories" and "arose from the same course of conduct 
by Defendants." Id. (quoting Filing No. 287 at 15). PageID
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The City's reply brief asserts the same reasoning for typicality as it did above in 
commonality. As with commonality, the Court disagrees. 
The Court previously found that typicality was met for the same reasons commonality was 
met (Filing No. 287 at 15–16). The Summary Judgment Order dismissing some of Plaintiffs' claims 
against the City does nothing to undermine such a finding. Accordingly, for the same reasons 
commonality is still satisfied, typicality is as well. 
d. Adequacy 
To satisfy the adequacy prerequisite, a representative party must "fairly and adequately 
protect the interests of the class." Fed. R. Civ. P. 23(a)(4). "Adequacy of representation is composed 
of two parts: the adequacy of the named plaintiff[s'] counsel, and the adequacy of representation 
provided in protecting the different, separate, and distinct interest of the class members." Retired 
Chi. Police Ass'n., 7 F.3d at 598 (citation modified). "In order to be an adequate representative, the 
named plaintiff[s] must 'be part of the class and possess the same interest and suffer the same injury 
as the class members.'" Conrad v. Boiron, Inc., 869 F.3d 536, 539 (7th Cir. 2017) (quoting Amchem 
Prods. v. Windsor, 521 U.S. 591, 625–26 (1997)). 
The City contends that the named Plaintiffs will not protect the interests of the Class 
because they both claim to be property owners ( Filing No. 309 at 15 ). Thus, they will not 
adequately represent the Non-Owner subclass. Id. 
In response, the Plaintiffs argue that the Court already dealt with this issue holding that 
"the separation of the class into subclasses resolves any issues," because ownership- dependent 
claims, such as private nuisance, would be asserted by the Owner Subclass, while the Non-Owner 
Subclass would pursue only claims for which ownership is not required ( Filing No. 314 at 14 
(quoting Filing No. 287 at 16–17)). The Plaintiffs argue that even if the Court concludes that the PageID
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Non-Owner Subclass requires an additional representative, the appropriate remedy is not 
decertification but modification under Rule 23(c)(1) (c), including appointment or substitution of 
an additional subclass representative and they respectfully request that opportunity in the 
alternative. Id. 
The City replies that trial for this case is set to begin in three months. Thus, modification 
is not the appropriate remedy, and the Court should instead decertify the class ( Filing No. 316 
at10). The Court disagrees. 
Circumstances concerning adequacy appear to have changed. In the parties' initial briefing 
for class certification, the City challenged adequacy on the grounds that Craig was not a property 
owner and therefore would not represent the Class adequately (see Filing No. 287 at 16). The Court 
rejected that challenge finding that the creation of the Owner Subclass and the Non- Owner 
Subclass rectified any issues. However, the City is now challenging the adequacy of the 
representatives on the ground that Craig is a property owner. 
Nonetheless, this does not disturb the Court's finding that the named representatives will 
adequately represent the Class. That is because both representatives will be pursuing all claims in 
this case. To use the example above, both named representatives w ill pursue claims for private 
nuisance and all other claims alleged in the Second Amended Class Action Complaint. The mere 
fact that the Non-Owner Subclass may not be able to pursue private nuisance claims does not mean 
that the named representatives will not adequately represent that subclass in the claims the subclass 
may assert. In other words, there is not a single claim which the Non-Owner Subclass pursues that 
the Owner Subclass is not also pursuing. Accordingly, the Court is satisfied that adequacy is met, 
and modification is not necessary. PageID
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The Court once again finds that the Rule 23(a) prerequisites are satisfied. Thus, the Court 
moves on to the Rule 23(b) requirements. 
2. Rule 23(b) Requirements 
For class certification to be proper, Plaintiffs must also show that the circumstances of their 
case are such that one of the three available options for class certification under subsection (b) of 
the rule applies. The Court certified the Class pursuant to Rule 23(b)(3). Under Rule 23(b)(3), 
Plaintiffs must show that questions of law or fact common to the class members predominate over 
any questions affecting individual members and that a class action is superior to other available 
methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). The burden 
is on Plaintiffs to demonstrate, by a preponderance of the evidence, that they have met each 
requirement of Rule 23. Messner, 669 F.3d at 811. 
a. Predominance 
The predominance requirement is related to commonality in that common questions must 
exist class-wide, but "the predominance criterion is far more demanding." Amchem, 521 U.S. at 
623–24. To meet this requirement, Plaintiffs must show "'common questions represent a significant 
aspect of [their] case and . . . can be resolved for all members of [the] class in a single 
adjudication.'" Messner, 669 F.3d at 815 (omission in original) (quoting 7AA Wright & Miller 's 
Federal Practice & Procedure § 1778 (3d ed. 2011 )). Predominance is "a qualitative rather than a 
quantitative concept. It is not determined simply by counting noses: that is, determining whether 
there are more common issues or more individual issues, regardless of relative importance." Parko 
v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014). 
In Mejdrech v. Met-Coil Systems Corp., a class of residents located within a one-mile radius 
of a factory alleged contaminants from defendant's factory leaked into the soil and groundwater, PageID
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which then migrated to the nearby residential area. 319 F.3d 910 (7th Cir. 2003). There, the 
defendant argued that various causation issues, like the varying degree of contaminations on each 
property, precluded class certification. Id. at 911. The Seventh Circuit affirmed the district court in 
finding that common issues predominated because "[t]he questions whether Met-Coil leaked TCE 
in violation of law and whether the TCE reached the soil and groundwater beneath the homes of 
the class members are common t o all the class members." Id. ; see also Pella Corp. v. Saltzman, 
606 F.3d 391, 394–95 (7th Cir. 2010) (noting that even though class members still must prove 
individual issues of causation and damages, this does not prevent class certification). The Seventh 
Circuit in Mejdrech explained its reasoning stating, "If there are genuinely common issues, issues 
identical across all the claimants, issues moreover the accuracy of the resolution of which is 
unlikely to be enhanced by repeated proceedings, then it mak es good sense, especially when the 
class is large, to resolve those issues in one fell swoop while leaving the remaining, claimant -
specific issues to individual follow-on proceedings." 319 F.3d at 911. 
The City argues that due to the Court's dismissal of some of the Plaintiffs ' claims against 
it, the remaining claims against the City and Cornerstone are not the same ( Filing No. 309 at 17). 
The City contends that because of this, there will be numerous issues with Plaintiffs' claims against 
Cornerstone, which will be different from and not applicable to the City. The City then argues that 
personal injury damages will be subjective and different for every Class member. 
Plaintiffs respond that predominance is not defeated merely because class members may 
later need to prove the amount of their damages, the length of their displacement, or the particular 
expenses they incurred ( Filing No. 314 at 15). Plaintiffs contend that the Court already applied 
that standard relying on Mejdrech , where the Seventh Circuit affirmed certification despite 
property-specific contamination and causation issues because the core questions were common PageID
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and would not be answered more accurately through repeated individual trials. Id . (citing 
Mejdrech, 319 F.3d at 911). 
Plaintiffs contend that the Court already anticipated varying damages expressly 
recognizing that "individuals may still have to prove individual causation and damages," but held 
that this did not preclude certification because "it is common to have a final phase in which 
individualized proof must be submitted." Id . at 16 (quoting Filing No. 287 at 18–20). Plaintiffs 
assert that they do not need a single formula that mechanically calculates every Class member's 
damages to preserve certification. Rather, Plaintiffs need only show that the central questions are 
common, and their resolution will drive the outcome for every class member. Plaintiffs assert that 
a separate phase can address class membership and damages and if necessary, any unusually 
individualized damages claims can be reserved, excluded from class treatment, or handled through 
follow-on procedures. But none of this requires decertification. Id. at 18–19. The Court agrees. 
The Court previously found predominance to be satisfied, and nothing has occurred 
subsequently that warrants an opposite finding. Every Class member's claims still depend on 
central questions the resolution of which will drive the outcome for all claims. A s the Court 
previously stated, the fact that individualized proof may be required in the final phase of this 
litigation does not disturb such a finding. Accordingly, predominance is still satisfied. 
b. Superiority 
In addition to establishing that common issues predominate over individual ones, Plaintiffs 
seeking class certification under Rule 23(b)(3) must show that "a class action is superior to other 
available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). 
This requirement is satisfied "'if a class action would achieve economies of time, effort, and 
expense and promote . . . uniformity of decisions as to persons similarly situated, without PageID
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sacrificing procedural fairness or bringing about other undesirable results." Bruzek v. Husky Oil 
Operations Ltd., 520 F. Supp. 3d 1079, 1099 (W.D. Wis. Feb. 19, 2021) (omission in original) 
(quoting Amchem, 521 U.S. at 615). To determine superiority, the Court considers: 
(A) the class members' interests in individually controlling the prosecution or 
defense of separate actions; 
 
(B) the extent and nature of any litigation concerning the controversy already 
begun by or against class members; 
 
(C) the desirability or undesirability of concentrating the litigation of the claims 
in the particular forum; and 
 
(D) the likely difficulties in managing a class action. 
 
Fed. R. Civ. P. 23(b)(3). 
The City focuses on the fourth factor and contends that Plaintiffs have failed to submit a 
litigation plan demonstrating class litigation is superior to individual trials (Filing No. 309 at 24). 
The City cites cases from the Eleventh and Fifth Circuit s; both of which found the respective 
plaintiffs' class arguments lacking because they did not provide a litigation plan as to how the 
district court could manage all class claims. Id. (citing Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 
1278–79 (11th Cir. 2009) (the named plaintiff had done "nothing to acknowledge [the difficulties 
in managing a class action] or propose a trial plan that would feasibly address them, and the district 
court [did] not appear to have given any meaningful consideration to how thi s case, with its 
individualized claims and defenses, would be tried."); Robinson v. Tex. Auto Dealers Ass'n, 387 
F.3d 416, 425 (5th Cir. 2004) ("The district court failed to indicate how it would manage the 
gigantic plaintiff class and the large number of defendants.")). 
Plaintiffs respond that superiority remains satisfied for the same reason it was satisfied at 
certification ( Filing No. 314 at 19). Plaintiffs argue that this case involves common liability 
questions arising from one fire, one hazardous site, one evacuation order, and one affected PageID
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residential area. Trying these issues once on a class wide basis is more efficient, more consistent, 
and fairer than requiring residents to litigate the same liability questions separately. 
Plaintiffs point out that the Court already found that a class action was far more efficient 
than individual trials for up to 2,000 individuals, and they argue nothing changes that analysis. The 
same witnesses, records, property history, fire -origin evidence, emergency- response evidence, 
evacuation evidence, and liability proof would have to be presented in every individual case. 
Decertification would not eliminate individualized damages issues; it would merely force those 
issues to be litigated alongside the same common liability evidence again and again. Id. at 20. 
Under these circumstances , superiority is satisfied. The City does not challenge the first 
three factors and thus, the Court finds that they still weigh in favor of superiority. The Court 
previously found that managing the class action would not be overly difficult and that, if anything, 
individual trials would cause greater difficulties and expend more judicial resources than necessary 
(Filing No. 287 at 20). As stated above, nothing subsequent to the Court's class certification order 
necessitates an opposite finding. Accordingly, the Court finds that superiority remains satisfied. 
Having concluded that Plaintiffs still satisfy Rule 23(a) and (b)(3), the Court finds that the 
Class should not be decertified, and the Motion to Decertify is denied. 
IV. CONCLUSION 
Surviving a summary judgment motion means that the court has determined—based on the 
record before it—that there are genuine, disputed issues of material fact that must be decided by a 
jury at trial. The City has provided no grounds on which the Court committed a manifest error of 
law in the Summary Judgment Order, and the Motion for Reconsideration and alternative Motion 
to Certify the Order For Interlocutory Appeal ( Filing No. 312) are DENIED. In addition, for the 
reasons discussed in this Order, the Motion to Decertify Class (Filing No. 308) is DENIED. PageID
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SO ORDERED. 
 
Date: 6/11/2026 
 
 
 
 
Distribution: 
 
MY-WAY TRADING, INC. 
c/o Seth Smith 
P.O. Box 1282 
308 NW F St. 
Richmond, IN 47374 
plasticman1@earthlink.net 
 
Benjamin D. Felton 
DYER GAROFALO MANN & SCHULTZ 
bfelton@dgmslaw.com 
 
Arie J. Lipinski 
Lipinski Law 
lipinski@lipinski-law.com 
 
Andrew M. McNeil 
BOSE MCKINNEY & EV ANS, LLP (Indianapolis) 
amcneil@boselaw.com 
 
Jackson Lee Schroeder 
Bose McKinney & Evans LLP 
jschroeder@boselaw.com 
 
John Smalley 
Dyer, Garofalo, Mann, & Schultz 
jsmalley@dgmslaw.com 
 
Brad R. Sugarman 
BOSE MCKINNEY & EV ANS, LLP (Indianapolis) 
bsugarman@boselaw.com 
 
Seth M. Thomas 
BOSE MCKINNEY & EV ANS, LLP (Indianapolis) 
sthomas@boselaw.com PageID
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