The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
Plaintiffs Shireen Deen, Latoya Nash, Terina Westmeyer, and Megan Kilian, former graduate students at Defendant New School University ("New School"), bring this action asserting claims for breach of contract and deceptive business practices based on changes made to Defendant's graduate drama program in 2005.*fn1 By notice of motion, dated April 27, 2007, Plaintiffs moved, pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(3), to certify this case as a class action. Defendant opposed the motion. For the reasons stated below, the motion is denied.
A more detailed description of the facts underlying this action is set forth in the Court's earlier Opinion and Order, familiarity with which is assumed. See Deen v. New School University, No. 05 Civ. 7174, 2007 WL 1032295, at *1 (S.D.N.Y. Mar. 27, 2007).
Defendant is an accredited university located in New York, NY.*fn2 (Compl. ¶ 8.) Beginning in 1994, Defendant contracted with The Actors Studio, Inc. ("The Actors Studio") to jointly offer a master's degree program in dramatic arts under the name "The Actors Studio Drama School of New School University." (Lupone Aff. Ex. 1, Dec. 12, 2006.) The contract between the parties expired in 2005, and the degree program was thereafter renamed "The New School for Drama." (Compl. ¶¶ 16, 18.)
Plaintiffs are professional artists who enrolled in Defendant's Actors Studio Drama School degree program as graduate students from 2003 through 2004. (Compl. ¶¶ 4-7.) In their Complaint, Plaintiffs allege that the name change and other alterations to the degree program following the termination of the contract between Defendant and The Actors Studio constitute breach of contract and deceptive practices under New York General Business Law § 349. (Compl. ¶ 22.) The Complaint also asserts claims of unjust enrichment and false advertising under New York General Business Law § 350. (Compl. § 22.)
On March 27, 2007, the Court dismissed Plaintiffs' unjust enrichment and false advertising claims, but upheld Plaintiffs' breach of contract and deceptive practices claims to the extent that they are based on Defendant's failure to award diplomas bearing The Actors Studio name. Deen, 2007 WL 1032295, at *4. Plaintiffs now move to certify a class of plaintiffs composed of "more than one hundred" students who enrolled in The Actors Studio Drama School of New School University from 2003 through 2004. (Pls.' Mem. Law 8.)
I. CLASS CERTIFICATION REQUIREMENTS UNDER RULE 23
Federal Rule of Civil Procedure 23 sets forth a two-step analysis for determining whether a court may certify a particular case as a class action. First, under Rule 23(a), Plaintiffs must show that (1) the proposed class is so numerous that joinder of all class members is impracticable, (2) there are questions of law or fact common to the class, (3) Plaintiffs' claims or defenses are typical of the claims or defenses of the class, and (4) Plaintiffs will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a) (2007).
Second, Plaintiffs must establish that the proposed class falls within one of the three subsections of Rule 23(b). Here, Plaintiffs rely on the third subsection, which authorizes class certification only where (1) the questions of law or fact common to the class predominate over those unique to its individual members, and (2) the class action is superior to other available forms of adjudication. Fed. R. Civ. P. 23(b)(3) (2007).
The burden of proving each of the requisite elements of Rule 23 is on the party seeking class certification, and failure to prove any of these elements precludes class certification. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997); Caridad v. Metro-North Commuter RR, 191 F.3d 283, 291 (2d Cir. 1999). Although "Rule 23 is given liberal rather than restrictive construction," Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997) (per curium) (quotations omitted), the Supreme Court has held that a reviewing court must undertake a "rigorous analysis" to determine whether class certification is appropriate in any given case, General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982).
Here, Plaintiffs fail to show that the proposed class is so numerous as to make joinder impracticable under Rule 23(a)(1). Class certification ...