The opinion of the court was delivered by: PRATT
Upon consideration of the pleadings, plaintiffs' Motion for Summary Judgment, Statement of Material Facts and Affidavits in Support Thereof, defendants' Opposition and Affidavit in Support Thereof, plaintiffs' Motion for Order Authorizing the Maintenance of this Suit as a Class Action, and oral argument of counsel, the Court determines, as set forth in the findings of fact and conclusions of law below, that there is no genuine issue of material fact so that plaintiffs are entitled to judgment and that plaintiffs may not maintain this suit as a class action.
1. Plaintiff Tenants Council of Tiber Island-Carrollsburg Square is a nonprofit corporation incorporated under the laws of the District of Columbia, comprised of approximately 460 tenants of the high rise and town house projects known as Tiber Island and Carrollsburg Square, located in the vicinity of Fourth and M Streets, S.W., Washington, D.C. These tenants occupy 400 of the more than 800 units of Tiber Island and Carrollsburg Square.
2. The individual plaintiffs, Dorothy S. Moskowitz and Walter H. Fleischer, are tenants, respectively, of Tiber Island and Carrollsburg Square projects.
3. Defendants Tiber Island Corporation and Carrollsburg Square Corporation are owners of the Tiber Island and Carrollsburg Square projects.
Defendant Frederick W. Berens Sales, Inc., is managing agent of both properties and receives rent in its name from the tenants of both projects on behalf of the owners. Defendant Hilliard L. Burnside is the property manager for Frederick W. Berens Sales, Inc., and is responsible for the enforcement of all rules and regulations promulgated by the owners and management.
4. The Tiber Island and Carrollsburg Square projects each have a swimming pool for the use of all tenants of both projects. The rentals charged tenants at Tiber Island and Carrollsburg Square are based upon a format which includes the cost of operating the swimming pool facilities. In renting apartments and town houses in the two complexes, defendants represent to prospective tenants that the swimming pool facilities will be available to them without additional charge.
5. The present controversy arises from defendants' refusal to issue passes necessary to gain admission to the swimming pools at the aforesaid projects to tenants including individual plaintiffs, who did not sign a form "Application For Swimming Pool Pass" provided by defendants, which form included the following exculpatory clause:
"In consideration of Tiber Island Corporation and Carrollsburg Square Corporation providing swimming pool facilities, the undersigned expressly agrees to assume the risk of any accidents or personal injury which he or any member of his family or any guest of the undersigned may sustain while using the said facilities, and agrees that Tiber Island Corporation, Carrollsburg Square Corporation and Frederick W. Berens Sales, Inc., Agent, will in no way be liable for any such injury. The undersigned further agrees to indemnify and save harmless Tiber Island Corporation, Carrollsburg Square Corporation and Frederick W. Berens Sales, Inc., Agent, for any injuries sustained by any member of his family or any guest of the undersigned while using the said facilities."
The record does not show the number of the tenants of Tiber Island and Carrollsburg Square who have applied for swimming pool passes or that all of these tenants have applied for passes. None of the tenants have been notified of this action pursuant to Rule 23(c)(2) of the Federal Rules of Civil Procedure.
6. Defendants, in late April of 1969, provided tenants with applications for swimming pool passes with the aforementioned exculpatory clause. On May 6, 1969, defendants sent a memorandum to all residents of Tiber Island and Carrollsburg Square, which in pertinent part stated that:
"We are receiving a few applications for the use of parking spaces and for the use of swimming pools which have been altered or rewritten.
"For obvious reasons, we cannot attempt to negotiate individual contracts. Accordingly, a form contract, designed to protect the interests of both parties, has been made available for use by all. Use of the facilities involved cannot be granted until the required agreements have been approved by ...