It’s the antithesis of rest in peace.
More than a decade after Menorah Gardens cemeteries made headlines for digging up occupied graves, similar litigation lingers with families suing other South Florida cemeteries on claims of disturbed or lost graves.
Menorah Gardens in Palm Beach and Broward counties settled a class action lawsuit for $100 million in 2004.
Now families in two other lawsuits against cemeteries in Miami-Dade and Broward counties find themselves unable to clear the hurdle of class certification.
“I thought the problem after Menorah Gardens was exposed would be addressed, but I’m afraid it may be more prevalent than I thought,” said attorney Ervin Gonzalez, a partner at Colson Hicks Eidson in Coral Gables. He was a co-lead counsel for the plaintiffs class in the Menorah Gardens litigation and spearheaded a Miami-Dade Circuit Court lawsuit against Graceland Memorial Park South.
But his litigation and a separate action against a North Lauderdale cemetery have reached roadblocks on the class certification issue.
“The trend has been to not allow class actions, not just in the state of Florida but nationally,” Gonzalez said. “It’s becoming more difficult.”
Appeals are pending in the Florida Supreme Court and the U.S. Court of Appeals for the Eleventh Circuit as plaintiffs ask to reverse rulings that bar them from suing as a class.
A team from GrayRobinson in Miami led by partner Ted C. Craig scored dual victories earlier this year on the class question for two cemeteries.
The Third District Court of Appeal in Miami reversed a lower court ruling certifying a 5,400-member class action against Graceland. The lawsuit claimed the cemetery lost track of older graves due to mismanagement. It was estimated the cost of locating the remains would cost about $9 million.
The Third District found the individual facts were too dissimilar to allow class litigation. The Florida Supreme Court has not indicated whether it will hear an appeal.
In March, U.S. District Judge Kenneth Ryskamp in West Palm Beach dismissed a lawsuit filed against SCI Funeral Services Inc., which runs Star of David Memorial Gardens in Fort Lauderdale.
The complaint claims graves were crushed to make room for others and that remains were dug up and moved without legal consent, sometimes across the graveyard. As a result, the plaintiffs claim burial plots they bought are now unusable.
Ryskamp found the name plaintiffs were bringing claims on behalf of others without specifically stating an injury.
The Third District opinion dovetails with Ryskamp’s decision in finding each individual burial dispute must be investigated to determine whether there is indeed problem.
“It is our position that the allegations of widespread wrongdoing at any of these cemeteries are false,” Craig said.
The final briefs were filed this month in the Eleventh Circuit.
Attorney Michael J. Avenatti of Eagan Avenatti in Newport Beach, California, argued for the plaintiffs suing Star of David Memorial Gardens “there is no question that this is a class action,” adding the SCI Funeral Services should never have been allowed to remove the litigation to federal court.
“This action is brought on behalf of a class of Florida citizens against Florida citizens,” Avenatti states. He said SCI aimed to divest the class of its ability to frame its own complaint and be heard in the forum of its choosing.
But attorney Jamie Isani, a Miami appellate attorney representing SCI, said in her brief the plaintiffs don’t even have individual claims, much less constitute a class. A claim of emotional distress was negated by Ryskamp.
“This case is less viable than a classic ‘buyer’s remorse’ case. It is a speculative, anticipatory ‘buyer’s remorse,’ ” she wrote.
Gonzalez considers the Third District decision wrong and said his plaintiffs had more similarities than differences on their claims. But not being blessed as a class action won’t shield the defendants because the claims still can be litigated as a group, he said.
“Any cemetery is supposed to take care of your loved one for perpetuity. If they lose them or can’t find them or mistreat them, they are liable under the law,” Gonzalez said.