Daskalea v. the Washington Humane Society ( 2011 )

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UNITED STATES DISTRICT COURT
FGR THE DISTRICT OF COLUMBIA
SUNDAY DASKALEA, et al.,
Plaintijj’s,
V' Civil Action No. 03-02074 (CKK)
WASHINGTON HUMANE
SOCIETY, et al.,
Defendants.
MEMORANDUM OPINION
(August 10, 2011)
Plaintiff Willie A. Jackson ("Jackson") is the sole named representative of a putative
class of self-described pet owners in the District of Columbia who contend that their pets were
seized, detained, and damaged by Defendants without due process of law. Over the years, the
claims asserted in this action have been successively winnowed down through a series of
dispositive motions.l Following the resolution of those motions, Jackson filed a [87] Renewed
Motion for Class Certification ("Motion for Class Certification"), which now comes to this Court
on Magistrate Judge Alan Kay’s [94] Report and Recommendation, in which Magistrate Judge
Kay recommends that the Court deny Jackson’s Motion for Class Certification, and on Jackson’s
[95] Objections to Magistrate Judge Kay’s Report and Recommendation ("Objections"). Upon
consideration of the parties’ submissions, the relevant authorities, and the record as a whole, the
Court finds that Jackson’s Objections are unfounded and concurs with Magistrate Judge Kay’s
bottom-line conclusion that Jackson has failed to discharge his burden of showing that
l Some of those motions were resolved by Judge John Garrett Penn, to whom this action was
previously assigned; others were resolved by the undersigned upon reassignment.
certification of the class is appropriate. Accordingly, the Court will overrule Jackson’s
Objections, adopt Magistrate Judge Kay’s Report and Recommendation, and deny Jackson’s
Motion for Class Certification.
I. BACKGROUND
The Court assumes familiarity with its prior opinions in this action, which set forth in
detail the factual and procedural background of this case. See Daskalea v. Wa. Humane Soc.,
480 F. Supp. 2d 16 (D.D.C. 2007) (Penn, J.) ("Daskalea 1"); Daskalea v. Wa. Humane Soc., 577
F. Supp. 2d 82 (D.D.C. 2008) (Kollar-Kotelly, J.) ("Daskalea;"); Daskalea v. Wa. Humane Soc.,
577 F. Supp. 2d 90 (D.D.C. 2008) (Kollar~Kotelly, J.) ("Daskalea;"); Daskalea v. Wa. Humane
Soc., 710 F. Supp. 2d 32 (D.D.C. 2010) (Kollar-Kotelly, J.) ("Daskalea.¢"). Therefore, the Court
will confine its discussion here to setting forth those facts most germane to the pending motion.
A. The Remaim'ng Plaintijfs
Originally, there were three named plaintiffs seeking to represent the putative class in this
action-Sunday Daskalea ("Daskalea"), Francis S. Norris, M.D. ("Norris"), and Jackson. See
First Am. Compl., ECF No. [7], at l. On June 14, 2010, Plaintiffs’ counsel advised the Court
that Daskalea and Norris are unable to serve as class representatives as Norris is now deceased
and Daskalea has relocated out of the country. See Order (June l4, 201 l), ECF No. [83], at l.
Since then, Plaintiffs have proceeded with Jackson as the sole representative of the putative
class. However, Daskalea has ostensibly maintained her individual claims and remains a
member of the putative class. Meanwhile, in part because no fonnal suggestion of death has
been filed with the Court, Norris’s individual claims technically remain "live" in this action. See
z'nj’ra Part IV.C.
B. T he Remaim``ng Defendants
The remaining defendants in this action are the District of Columbia and several current
and former officers and employees of the Washington Humane Society (the "Humane Society").
The individual defendants include: Jody Huckaby, the former Executive Director of the Humane
Society, in her individual capacity; Lisa LaFontaine, in her official capacity as the Humane
Society’s current President and Chief Executive Officer; Adam Parascandola, the former
Director of Law Enforcement for the Humane Society, in his individual capacity; Zita Macinanti,
in her official capacity as the Humane Society’s current Director of Law Enforcement; Sonya
Scnoor, individually and in her official capacity as the Humane Society law enforcement officer
who allegedly seized and detained Daskalea’s dog; Rosemary Vozobule, individually and in her
official capacity as the Humane Society law enforcement officer who allegedly refused to return
Daskalea’s dog; Lindsay Gardewin, individually and in her official capacity as a Humane
Society law enforcement officer who allegedly seized and refused to return Jackson’s dog; and
H.O. Boozer, individually and in her official capacity as the law enforcement officer who
allegedly seized and refused to return Norris’s dog (collectively, the "Individual Defendants").
See First Am. Compl. 1111 ll-l6; Order (June 14, 2010) at l-4.
Originally, Plaintiffs also brought suit against the Humane Society itself and a series of
John Doc Defendants. See First Am. Compl. 1111 9, l7. Plaintiffs’ claims against the Humane
Society were dismissed because the Humane Society is non sui juris. See Daskalea 1, 480 F.
Supp. 2d at 22-24. Plaintiffs’ claims against the John Doe Defendants were dismissed for want
of prosecution. See Min. Order (Sept. 14, 2010).
In addition, the Court has already concluded that the Individual Defendants are entitled to
qualified immunity insofar as they are being sued for constitutional violations in their individual
capacities in connection with their enforcement of the statute at issue in this action as written.
See Daskalea3, 577 F. Supp. 2d at 104. The Court has so far declined to hold that the Individual
Defendants are entitled to qualified immunity in connection with the actions they are alleged to
have taken after seizing Plaintiffs’ pets or in connection with Plaintiffs’ common law claims for
damage to personal property and conversion. See ia'. at 104-05. Resolution of that question will
have to await further development of the factual record.
C. T he Remaining Claims
Plaintiffs’ [7] First Amended Complaint ("Complaint") was filed on March 1, 2004, and
it remains the operative iteration of the complaint in this action. lt includes a total of eight
counts-three constitutional claims and five common law tort claims-»each of which challenges,
in one way or another, Defendants’ administration and enforcement of the District of Columbia’s
Freedom from Cruelty to Animals Protection Act (the "Act"), D.C. CODE §§ 22-1001-22-1015,
in the form that it existed in the time period extending from on or about J unc 8, 2001 , when the
District of Columbia’s Freedom from Cruelty to Animals Protection Amendment Act of 2000
("the 2000 Act"), 2000 D.C. Legis. Serv. 13-303 (West), entered into effect, and on or about
December 5, 2008, when the District of Columbia’s Animal Protection Act of 2008 (the "2008
Amendment"), 2008 D.C. Legis. Serv. 17-281 (West) entered into effect, or March 27, 2009,
when its implementing regulations, D.C. MUN. REGS. tit. 24, §§ 1500-l5l5, were adopted.z
During this time period, the operative provision of the Act read as follows:
(a) Any person found violating the laws in relation to cruelty to
animals may be arrested and held without a warrant . . . .
The person making the arrest or the humane officer taking
2 There is some ambiguity as to whether Plaintiffs’ challenge is intended to conclude on
December 5, 2008, when the 2008 Amendment entered into effect, or March 27 , 2009, when the
implementing regulations were adopted. For purposes of resolving the pending motion, the
ambiguity is immateria1.
possession of an animal shall have a lien on said animals
for the expense of such care and provisions.
(b)
(l) A humane officer of the Washington Humane
Society may take possession of any animal to
protect it from neglect or cruelty. The person taking
possession of the animal or animals, shall use
reasonable diligence to give notice thereof to the
owner of animals found in the charge or custody of
the person arrested, and shall properly care and
provide for the animals until the owner shall take
charge of the animals; provided that, the owner
shall take charge of the animals within 20 days from
the date of the notice.
(2) If the owner or custodian of the animal or animals
fails to respond after 20 days, the animal or animals
shall become the property of the Washington
Humane Society and the Washington Humane
Society shall have the authority to:
(A) Place the animal or animals up for adoption
in a suitable home;
(B) Retain the animal or animals, or
(C) Humanely destroy the animal or animals.
D.C. CODE § 22-1004 (2002).
Of the eight counts identified in the Complaint, only five, discussed in greater detail
below, remain extant in full or in part. Plaintiffs’ claims for fraud (Count VI), negligent and
intentional infliction of emotional distress (Count VII), and extortion (Count VIIl) were
dismissed early on in this action for failure to state a claim for relief. See Daskalea 1, 480 F.
Supp. 2d at 37-39.
As a result, Plaintiffs’ five remaining counts are as follows:
~ Plaintiffs’ Count l, which Plaintiffs label "violation of due process," arises under
Section 1 of the Ku Klux Act of 1871, Rev. Stat. § l979, as amended, 42 U.S.C. §
1983 ("Section 1983"). Plaintiffs claim that Defendants (a) deprived them of
personal and property interests without due process of law, in violation of the Fifth
and Fourteenth Amendments to the Constitution3 and (b) violated their right to be free
from unreasonable searches and seizures, in violation of the Fourth Amendment to
the Constitution. See First Am. Compl. 1111 71-74.
- Plaintiffs’ Count ll originally had two components. In the first, Plaintiffs launched a
facial challenge to the constitutionality of the Act in the form that it existed prior to
the 2008 Amendment. See ia'. 1111 75-77. ln the second, Plaintiffs alleged that
Defendants had customarily enforced the Act in an unconstitutional fashion-
specifically, by failing to provide pet owners with meaningful notice and an
opportunity to be heard. See id. 1111 75, 78. Of these two components, only the second
remains extant. Tlie Court dismissed Plaintiffs Count ll insofar as it launched a facial
challenge to the constitutionality of the Act on May 2, 201 0, concluding that
Plaintiffs’ facial challenge had been rendered moot by the 2008 Amendment to the
Act, which Plaintiffs conceded rectified any facial due process problems.'l See
Daskalea,¢, 710 F. Supp. 2d at 44-45. As a result, Count ll remains "live" only
3 While due process violations are typically analyzed under the Fourteenth Amendment, the
District of Columbia_which is not a State_is subject to the Due Process Clause of the Fifth
Amendment. See Butera v. District of Columbia, 235 F.3d 637, 645 n.7 (D.C. Cir. 2001). To
date, no party has moved for dismissal of Plaintiffs’ claims under the Fourteenth Amendment on
this basis.
4 ln his Motion for Class Certification, Jackson erroneously suggests that his facial challenge
under Count ll remains extant. See Pl.’s Mem. of P. & A. in Supp. of Pl.’s Renewed Mot. for
Class Certification ("Pl.’s Certif. Mem."), ECF No. [87], at 7.
insofar as it alleges that Defendants customarily enforced the Act in an
unconstitutional manner. In this regard, Count ll simply tracks Count l.5
~ Plaintiffs’ Count llI is essentially a sub-category of Count l. ln Count llI, Plaintiffs
claim that Defendants, in applying the Act to the named plaintiffs-that is, Daskalea,
Norris, and Jackson_"deprived [the named plaintiffs] of property without due
process of laW, by illegally seizing and detaining their pets, illegally refusing to return
the animals to them, failing to provide notice and a meaningful right to be heard, and
taking actions which permanently affected their property rights." First Am. Compl. 11
80.
- Plaintiffs’ Count lV, labeled "destruction of property," alleges that Defendants
damaged and destroyed Plaintiffs’ pets by sterilizing them, forcing them to undergo
surgery, and permanently preventing them from breeding. See id. 11 81. Previously,
the Court construed this count as a claim for "damage to personal property."
Daskalea 1, 480 F. Supp. 2d at 36.
- Plaintiffs’ Count V alleges Defendants committed conversion by seizing Plaintiffs’
pets. See First Am. Compl. 11 84.
Jackson, the sole remaining named representative of the putative class, had his dog seized
by the Humane Society. He alleges that on October ll, 2003, members of the Humane Society
5 ln the course of summarizing the extended procedural history of this action, Magistrate Judge
Kay suggests in a footnote that this Court dismissed Plaintiffs’ Count ll in its entirety. See
Report and Recommendation at 2 n.3. That is not strictly accurate. The Court dismissed
Plaintiffs’ Count ll "insofar as it asserts a facial challenge to the constitutionality of the Act."
Daskalea.¢, 710 F. Supp. 2d at 45. The Court left the claim intact insofar as it challenges the way
in which the Act had been "customarily enforced." First Am. Compl. 11 75. However, because
this aspect of Plaintiffs’ Count ll is essentially duplicative of Plaintiffs’ remaining claims, which
were the focus of Magistrate Judge Kay’s Report and Recommendation, this minor inaccuracy
had no impact on the actual substance of Magistrate Judge Kay’s Report and Recommendation.
"entered [his] family[’s] home and illegally seized [his dog]," a female Rottweiler that had
"developed terminal cancer," through a series of "threats and false statements." Id. 1111 59, 61.
"[D]espite numerous demands" to free the animal, the Humane Society "refused to return [his
dog]" until Jackson would "consent to, and pay for . . . maj or cancer surgery," even though his
veterinarian advised against such treatment. Id. 1111 61 , 64. ln an attempt to appease the Humane
Society, Jackson provided his pet’s veterinary records "for the prior four years, [which]
document[ed the animal’s] exemplary medical treatment." ld. 11 61. The Humane Society was
not satisfied, however, and demanded that the animal undergo "radical treatment." Ia'. 11 64.
"[U]nder compulsion from the Humane Society, [] Jackson was compelled to agree to the cancer
surgery." Id. 11 65. The treatment was unsuccessful and the animal died. Id. 11 64. At no time
during this process was Jackson given an opportunity to contest the seizure and terms of the
release of his pet, including the reasonableness of the cancer treatment. Id. 11 70.
ln addition to recounting the alleged events leading to the seizure of Jackson’s pet, the
Complaint includes allegations concerning Daskalea and Norris. Although Daskalea and Norris
no longer seek to serve as representatives of the putative class, see supra Part l.A, the allegations
in the Complaint specifically pertaining to them are useful in fleshing out the composition of the
proposed class.
On May l7, 2002, Daskalea left her dog unattended in her vehicle while "she went up to
her apartment to get some things." First Am. Compl. 1111 3l, 33. The dog, "a full-bred, pedigreed
‘Dogo Argentino,"’ which she had purchased "for breeding, as well as companionship"
purposes, "had just been walked, watered and fed, and was in absolutely no danger." Id. 11 31. lt
is not clear from the Complaint how long the animal was left unattended; however, while
Daskalea was in her apartment, Defendant Sonya Scnoor, a Humane Society law enforcement
officer, seized the dog from the car. Ia’, 11 36. Daskalea’s "[r]epeated efforts . . . to retrieve [her
dog] . . . were unsuccessful," and the Humane Society "refused to return" the animal. Id. 11 39.
While in the custody of the Humane Society, the dog was "forcibly sterilized." Ia’. 11 41.
Although the animal was eventually retumed, it was "permanently prevented from breeding" and
its "pei'sonality ha[d] changed." Id. 1111 43, 45 .
On July 19, 2002, Norris left her do g, a Schipperke lap do g, unattended in her car while
she "went to [a] nearby sports club." Id. 11 46. Norris "parked her car under a large shade tree . .
. cracked all four car windows, [and] left food and water for [the animal]." Id. Upon returning
to her car, "Norris found that officer H.O. Boozer . . . of the Humane Society had entered her car
and seized [her dog] without her perrnissi0n, knowledge or consent." Id. 11 48. Norris maintains
that her dog "was perfectly fine and in absolutely no danger" at the time of the seizure. Ia'. 11 49.
Her "[e]fforts . . . to retrieve [her dog] . . . were [initially] unsuccessful." Id. 11 54. The Humane
Society eventually "agreed to return [the dog], but only if [] Norris agreed to pay . . . [for]
unnecessary medical treatmen ." Ia'. 11 55. Norris "reluctantly agreed" to the treatment, realizing
it was the "on1y way" the Humane Society would retum her pet. Id. The dog was "bedraggled"
and "in terrible condition" when released. Id. 11 56.
D. Pre-Certification Discover_v
On J unc 14, 20l0, the Court granted Plaintiffs leave to conduct limited pre-certification
discovery. See Order (J unc 14, 2010) at 3-4. Specifically, the Court concluded that Plaintiffs
were entitled to receive three categories of documents in connection with each impoundment that
occurred during the putative class period: (l) the official notice of violation; (2) the police rcport;
and (3) the computerized docket sheet. See id. As part of the discovery allowed, counsel for the
Individual Defendants produced extensive computer records identifying those individuals whose
pets were seized during the putative class period and who met the definition of the proposed
class, and also made individual paper files available to Plaintiffs for inspection. See Ltr. From H.
Hamilton, Esq. to P. Zukerberg, Esq. (Aug. 20, 2010), ECF No. [9l-l], at l. According to the
record, it appears that Jackson’s counsel received and reviewed at least twenty-three boxes of
records, and attempted to conduct an informal survey of the impoundments documented by those
records, See Ltr. From P. Zuckerberg, Esq. to H. Hamilton, Esq. (Aug. 30, 2010), ECF No. [91-
l], at l-2.
E. Jackson ’s Motion for Class Certification
On October 7, 2010, Jackson filed the pending Motion for Class Certification.6 See Pl.’s
Certif. Mem. The District of Columbia and the Individual Defendants Hled separate oppositions.
See District of Columbia’s Mem. of P. & A. in Opp’n to Pl.’s Mot. for Class Certification, ECF
No. [90]; Individual Defs.’ Opp’n to Pl.’s Mot. for Class Certification ("Indiv. Defs.’ Certif.
Opp’n"), ECF No. [89]. Jackson filed a consolidated reply. See Pl.’s Reply Mem. in Supp. of
Class Certification ("Pl.’s Certif. Reply"), ECF No. [91].
ln his Motion for Class Certification, Jackson seeks to serve as the sole representative for
a class comprised of "[a]ll persons whose pets were seized in the District of Columbia by the
defendants" during the period that the 2000 Act "was the operative law"-that is, until the date
the 2008 Amendment and its implementing regulations entered into effect. Pl.’s Certif. Mem. at
4. Based on records produced during the course of pre-certification discovery, Jackson estimates
that there are between 3,000 and 6,000 members in the putative class. See id. at 1 1-l2.
6 The Court held a previous [19] Motion for Class Certification in abeyance pending resolution
of various dispositive motions. See Scheduling and Procedures Order, ECF No. [49], at 4-5.
The pending Motion for Class Certification supersedes that motion.
10
Jackson seeks certification of the putative class under Rule 23(b)(l) or (b)(3) of the
Federal Rules of Civil Procedure, though he indicates that his preference is for certification
under subdivision (b)(l) so that he might "avoid[] the often burdensome and costly notice
requirements applicable to (b)(3) classes." Id. at 3.
F. Magistrate Judge Kay’s Report and Recommendation
This Court referred Jackson’s Motion for Class Certification to Magistrate Judge Kay for
purposes of preparing a report and recommendation under Local Civil Rule 72.3(a). See Order
Referring Case to Magistrate Judge (Dec. 6, 2010), ECF No. [92]. On February 15, 201 l,
Magistrate Judge Kay held a hearing and heard argument concerning Jackson’s Motion for Class
Certification, See Min. Entry (Feb. 15, 201 1).
On May 26, 201l, Magistrate Judge Kay issued his written Report and Recommendation.
Therein, Magistrate Judge Kay addresses whether Jackson has (a) satisfied each of the four
prerequisites for class certification under Rule 23(a) and (b) established whether certification is
appropriate under one of the subdivisions of Rule 23(b). See infra Part II.B (describing the legal
standard for class certification). With respect to the prerequisites for class certification,
Magistrate Judge Kay concluded that Jackson had carried his burden with respect to three of the
four prerequisites_namely, numerosity, commonality, and adequacy of representation. See
Report and Recommendation at 6-12, 15-16. More Specifically, he found that Jackson’s estimate
that the purported class consists of between 3,000 and 6,000 members was supported by
documentary evidence showing the number of pets seized during the class period and satisfied
the legal standard for numerosity, see id. at 6-7; that the question of whether Plaintiffs can
demonstrate that the Act, as applied, resulted in a violation of their constitutional right to due
process provided a sufficient basis for the satisfaction of commonality, see id. at 7 -l2; and that
ll
putative class counsel’s qualifications and experience and his past record of representation in this
action were sufficient to satisfy the adequacy of representation requirement, see id. at 15-16.
However, Magistrate Judge Kay determined that Jackson failed to show that he satisfies the
typicality requirement of Rule 23(a). See id. at 12-15. ln addition, Magistrate Judge Kay found
that l ackson had failed to show that certification is appropriate under any of the relied-upon
subdivisions of Rule 23(b)-namely, subdivisions (b)( 1) and (b)(3). See id. at 16-25.
G. Jackson ’s Objections to the Report and Recommendation
On June 13, 2011, Jackson filed his Objections to Magistrate Judge Kay’s Report and
Recommendation. On June 30, 201 l, the District of Columbia and the Individual Defendants
filed separate responses to Jackson’s Objections. See District of Columbia’s Resp. to Pl.’s
Objections, ECF No. [97]; Individual Defs.’ Opp’n to Pl.’s Objections, ECF No. [96]. Jackson
did not file a timely reply.
Unsurprisingly, Jackson’s Objections are limited to those parts of Magistrate Judge Kay’s
Report and Recommendation adverse to him. Specifically, Jackson contends that Magistrate
Judge Kay erred by concluding that Jackson failed to establish that he satisfies the typicality
requirement of Rule 23(a) and that certification is appropriate under Rule 23(b)(l) or (b)(3). See
Pl.’s Objections at 2. In this regard, Jackson’s arguments by and large rehash the arguments he
made before Magistrate Judge Kay in the course of briefing the Motion for Class Certification.
II. LEGAL STANDARDS
A. Review of a Magistrate Judge’s Report and Recommendation
This Court referred Jackson’s Motion for Class Certification to Magistrate Judge Kay for
purposes of preparing a report and recommendation under Local Civil Rule 72.3(a). See Order
Referring Case to Magistrate Judge (Dec. 6, 2010). "Any party may file . . . written objections to
12
the magistrate judge’s proposed findings and recommendations," and must "specifically identify
the portions of the proposed findings and recommendations to which objection is made and the
basis for the objection." LCvR 72.3(b). Upon the filing of objections, the "district judge [must]
make a de novo determination of those portions of a magistrate judge’s findings and
recommendations to which objection is made," and may do so "based solely on the record
developed before the magistrate judge, or may conduct a new hearing, receive further evidence,
and recall witnesses." LCvR 72.3(c). The "district judge may accept, reject, or modify, in whole
or in part, the findings and recommendations of the magistrate judge, or may recommit the
matter to the magistrate judge with instructions." Id.
B. Motionsfor Class Certification
Class certification is governed by Rule 23 of the F ederal Rules of Civil Procedure. There
are two components to the certification inquiry under Rule 23. First, each of the four elements of
Rule 23(a) must be met. Richards v. Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C. Cir. 2006).
That is, the proponent of certification must establish: "(l) 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). These four requirements are commonly referred to in shorthand as
numerosity, commonality, typicality, and adequacy of representation, respectively. Second,
certification of the proposed class must be appropriate under at least one of the three categories
enumerated in Rule 23(b). ln this case, Jackson relies upon subdivisions (b)(l) and (b)(3), which
requirements are discussed in greater detail elsewhere. See infra Part IV.B.
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The proponent of the class bears the burden of proof. Harris v. Koenig, 271 F.R.D. 383,
388 (D.D.C. 2010) (citing Amchem Pr0ds., Inc. v. Windsor, 521 U.S. 591, 614 (1997)). The
Supreme Court has stated that "Rule 23 does not set forth a mere pleading standard"; rather, "[a]
party seeking class certification must affirmatively demonstrate [its] compliance with the Rule-
that is, [it] must be prepared to prove that there are in fact sufficiently numerous parties, common
questions of law or fact, etc." Wal-Mart Stores, Inc. v. Dukes, __ U.S. _, 131 S. Ct. 2541, 2551
(201 1) (emphasis in original).7 At times, determining whether the proponent has met its burden
will require the district court to "probe behind the pleadings" and address matters that are
enmeshed with the factual and legal issues relevant to the merits of the plaintiffs’ causes of
action. Gen. Tel. C0. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). At the same time, the district
court should "refrain from making determinations on the merits that are unnecessary to resolving
the class certification question." Lightfoot v. District of Columbia, 273 F.R.D. 3 14, 323 n.6
(D.D.C. 201 1). Ultimately, the district court’s detennination must rest on a "rigorous analysis"
to ensure that all the requirements are satisfied, and "[a]ctual, not presumed, conforrnance" with
Rule 23 is indispensable. Falcon, 457 U.S. at 160-61.
Because district courts are "uniquely well situated to make class certification decisions,"
McCarthy v. Kleindienst, 741 F.2d 1406, 1410 (D.C. Cir. 1984) (citing Burns v. U.S. R.R. Ret.
Bd., 701 F.2d 189, 191 (D.C. Cir. 1983)), they exercise "broad discretion in deciding whether to
pennit a case to proceed as a class action," Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir.
1994) (citing Bermudez v. U.S. Dep ’t of Agric., 490 F.2d 718, 725 (D.C. Cir.), cert a'enied, 414
U.S. 1104 (1973)). Provided the district court "‘applies the correct criteria to the facts of the
7 The Court notes that when Magistrate Judge Kay issued his Report and Recommendation on
May 26, 2011, he did not have the benefit of the Supreme Court’s decision in Dukes, which was
issued on June 20, 2011.
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case, the decision should be considered to be within [its] discretion."’ Bermudez, 490 F.2d at
725 (intemal quotation marks omitted; citation omitted).
III. PRELIMINARY MATTERS
Before reaching the merits of Jackson’s Objections to Magistrate Judge Kay’s Report and
Recommendation, the Court pauses to make two overarching observations about the nature of
Jackson’s Motion for Class Certification,
First, despite having been afforded the opportunity to conduct limited pre-certification
discovery, see supra Part I.D, Jackson’s Motion for Class Certification offers no meaningful
factual elaboration of the class beyond providing a rough estimate of the overall size of the class.
lnstead, l ackson has elected to rest almost exclusively on the factual allegations set forth in the
Complaint, a document which was filed long before this Court authorized the parties to engage in
pre-certification discovery and resolved various dispositive motions, narrowing the claims at
issue in this action and articulating the legal principles applicable to Plaintiffs’ extant claims.s
Notably, even though the Court granted Jackson leave to conduct pre-certification discovery to
obtain the official notice of violation, the police report, and the computerized docket sheet for
each impoundment occurring during the putative class period-and the record suggests that
Defendants produced a substantial volume of records responsive to Plaintiffs’ requests_.lackson
does not append this material to his Motion for Class Certification nor attempt to summarize or
distill the information gleaned during pre-certification discovery in an attempt to illuminate for
the Court the composition of the putative class and the overall propriety of allowing this case to
8 ln connection with his Motion for Class Certification, Jackson has submitted (a) a declaration
outlining the qualifications of his counsel, (b) correspondence between the parties concerning
pre-certification discovery, (c) pleadings relating to Jackson’s attempts to secure injunctive relief
before the Superior Court of the District of Columbia, and (d) limited documentation allegedly
evidencing some, but not all, of the damages suffered by the named p1aintiffs. See Pl.’s Certif.
Reply Exs. 1-8.
15
proceed as a class action. Of course, this is not necessarily fatal to Jackson’s Motion for Class
Certification. To the extent Jackson is still able to satisfy this Court, after a rigorous analysis,
that the requirements of Rule 23 are in fact satisfied in this case based upon the allegations set
forth in the Complaint and the arguments of his counsel, then he may secure leave to represent
the putative class. See Dukes, 131 S. Ct. at 2551. The Court merely notes that, as the proponent
of the class, the burden ultimately lies with Jackson.
Second, as set forth in greater detail above, five of the eight counts identified in the
Complaint remain extant in full or in part. See supra Part l.C. Some of those claims are
challenges to the constitutionality of the Act as administered and enforced by Defendants, while
others are common law claims sounding in conversion and damage to personal property. See id.
ln the course of reciting the procedural history of this case, Jackson mentions these five extant
claims in passing. See Pl.’s Certif``. Mem. at 6-7. Thereafier, in arguing in favor of class
certification, Jackson focuses his attention exclusively on Plaintiffs’ claim under Section 1983, a
claim that Defendants deprived members of the putative class of personal and property interests
without due process of law in violation of the Fifth and Fourteenth Amendments to the
Constitution and violated their right to be free from unreasonable searches and seizures in
violation of the Fourth Amendment to the Constitution. Consistent with this focus, when
Jackson speaks of commonality in the proposed class, he consistently refers to the
"constitutionality of defendants’ due process procedures for seizing and adjudicating the status of
seized pets," Pl.’s Certif``. Mem. at 13, the "lack of due process prior to the ultimate decision on
the pet’s fate," Pl.’s Certif. Reply at 5, the "deprivation of constitutional rights," Pl.’s Objections
at 12, and the like. By contrast, Jackson makes no substantive mention-none_of Plaintiffs’
common law claims for conversion and damage to personal property. This omission is
16
particularly troubling because the Individual Defendants argue at considerable length in their
opposition that certification of the proposed class with respect to Plaintiffs’ common law claims
is inappropriate, see Indiv. Defs.’ Certif``. Opp’n at 4-5, 16-17, an argument to which Jackson
offers no rejoinder whatsoever in his reply (or, for that matter, in his Objections to Magistrate
Judge Kay’s Report and Recommendation).9 Presented with this record, the Court simply has no
basis for concluding that the certification of the putative class is appropriate with respect to
Plaintiffs’ common law claims. At a bare minimum, Jackson has failed to carry his burden of
satisfying this Court that the requirements of Rule 23 are in fact satisfied in this case with respect
to Plaintiffs’ common law claims. See Dukes, 131 S. Ct. at 2551. Accordingly, the Court will
deny Jackson’s Motion for Class Certification insofar as it seeks certification of the putative
class in connection with these claims.
IV. DISCUSSION
The class action is "an exception to the usual rule that litigation is conducted by and on
behalf of the individual named parties only." Calzfano v. Yamasakz', 442 U.S. 682, 700-01
(1979). ln order to justify a departure from that rule, "a class representative must be part of the
class and ‘possess the same interest and suffer the same injury’ as the class members."’ E. Tex.
9 While the Court declines to reach the question in the absence of any argument from Jackson,
the Court pauses to observe that the Individual Defendants’ arguments as to why certification of
the class with respect to Plaintiffs’ common law claims is inappropriate appear at first glance to
be compelling. See Indiv. Defs.’ Certif``. Opp’n at 16-1 7. Briefly stated, there is reason to believe
that establishing liability for conversion would require the fact-finder to look at each
impoundment individually to detemiine whether the owner suffered a sufficiently substantial
deprivation of his or her property interests to rise to the level of conversion and whether
Defendants were in wrongful possession of the animal based upon the totality of the
circumstances surrounding the seizure. Similarly, there is reason to believe that establishing
liability for damage to personal property would require the fact-finder to look at each injury and
make individual determinations as to whether Defendants breached a duty to a class member and
caused a cognizable injury. Against these arguments, Jackson has offered nothing that would
suggest that these claims are readily amenable to class-wide resolution.
17
Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (quoting Schlesinger v.
Reservists C0mm. to Stop the War, 418 U.S. 208, 216 (1974)). ln this case, Jackson seeks to
serve as the sole representative for a class comprised of "[a]ll persons whose pets were seized in
the District of Columbia by the defendants" during the period that the 2000 Act "was the
operative law"_that is, until the date the 2008 Amendment and its implementing regulations
entered into effect. Pl.’s Certif. Mem. at 4. He seeks certification of the putative class under
Rule 23(b)(l) or (b)(3). Ia'. at 3. For the reasons set forth below, the Court concurs with and
adopts Magistrate Judge Kay’s bottom-line conclusion that Jackson has failed to discharge his
burden of showing that certification of the class is appropriate. Accordingly, the Court will
overrule Jackson’s Objections, adopt Magistrate Judge Kay’s Report and Recommendation, and
deny Jackson’s Motion for Class Certification.
A. Jackson Has Failed to Show that He Satisfies the "Typicality” Requirement
Under Rule 23(a)(3)
Rule 23(a) and its typicality requirement "ensure[] that the named plaintiffs are
appropriate representatives of the class whose claims they wish to litigate." Dukes, 131 S. Ct. at
2550. Generally speaking, "[t]ypicality is . . . satisfied when the plaintiffs’ claims arise from the
same course of conduct, series or events, or legal theories of other class members." In re XM
Satellite Radi0 Holdings Secs. Litig., 237 F.R.D. 13, 18 (D.D.C. 2006) (citations omitted). "The
facts and claims of each class member do not have to be identical to support a finding of
typicality; rather, typicality refers to the nature of the claims of the representative, not the
individual characteristics of the plaintif ." Raa'osti v. Envisi0n EMI, LLC, 717 F. Supp. 2d 37, 52
(D.D.C. 2010) (intemal quotation marks and notations omitted; citation omitted). At bottom, the
typicality requirement is used to ascertain "whether the action can be efficiently maintained as a
class and whether the named plaintiffs have incentives that align with those of the absent class
18
members so as to assure that the absentees’ interests will be fairly represented." 1n re
Lorazepam & Clorazepate Antitrust Litz``g., 202 F.R.D. 12, 27 (D.D.C 2001) (citations omitted).
lt has frequently been observed that "[t]he commonality and typicality requirements . . .
tend to merge," with "[b]oth serving as guideposts for determining whether under the particular
circumstances maintenance of a class action is economical and whether the named plaintiff s
claim and the class claims are so interrelated that the interests of the class members will be fairly
and adequately protected in their absence." Falcon, 457 U.S. at 157-58 n.l3. That sensible
observation is particularly apt in this case. Here, the members of the proposed class suffered a
wide range of deprivations, were provided with different kinds of notice at different points in
time, and claim distinct injuries. These differences are of constitutional significance and, as
such, implicate class members’ very ability to prevail on their claims. Simply put, Jackson’s
claims are not typical of all or even most of the different claims that comprise the class. lndeed,
the Court doubts that any single named plaintiff could serve as the representative for the entirety
of the broad class proposed.lo
The Court begins with an important observation about the limitations of Jackson’s
Motion for Class Certification in this respect. Jackson identifies the putative common question
uniting the class in the following manner:
[T]he common issue is whether the various Defendants, in
enforcing the prior Act, deprived Plaintiffs of "personal and
property interests without due process of law, in violation of the
Fifth and Fourteenth Amendments to the Constitution," as well as
their right to be free from unreasonable searches and seizures
pursuant to the Fourth Amendment to the Constitution.
10 Originally, there were three named plaintiffs seeking to represent the class-Daskalea, Norris,
and Jackson; Plaintiffs now attempt to proceed with Jackson as the sole representative of the
putative class. See supra Part l.A.
19
Pl.’s Certif Mem. at 13.11 However, at no point in his submissions does Jackson explain how the
Plaintiffs would go about proving this question in the context of a class action. lndeed,
completely absent from Jackson’s submissions is any meaningful description of the basic legal
principles governing Plaintiffs’ extant claims. This omission is both inexplicable and
unacceptable. lt is Jackson’s burden to establish that class members’ claims "depend upon a
common contention" and that the common contention is "of such a nature that it is capable of
classwide resolution-which means that determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in one stroke." Dukes, 131 S. Ct. at 2551
(emphasis added). By tendering only generalities and no meaningful legal analysis, Jackson has
failed to discharge his burden; his attempts to shift that burden to Defendants and this Court are
patently impermissible.
lt may be that that Jackson’s failure to address the legal framework goveming his
proffered common question was intentional since, once one takes a close look at that framework,
it becomes clear that Jackson’s claims are not typical of claims that are capable of class-wide
resolution. Critical to this conclusion is the fact that this Court has already rejected Plaintiffs’
facial challenge to the constitutionality of the Act, leaving only Plaintiffs’ as-applied
constitutional challenge, see Daskalea¢¢, 710 F. Supp. 2d at 41-42, something that Jackson
mentions but does not appear to appreciate. Instead, as he has consistently in this action, Jackson
continues to conflate Plaintiffs’ facial and as-applied challenges. See, e.g., Pl.’s Certif. Mem. at
14 ("The due process defects complained of were suffered by all class members, because the
former Act suffers from the same procedural flaw: the failure to provide pet owners with notice
n Despite Jackson’s passing references to "unreasonable searches and seizures," he never
attempts to distinguish that theory of liability from his contention that Defendants denied the
class due process, which is the only contention that receives any meaningful measure of attention
in Jackson’s submissions.
20
and an opportunity to be heard."). The Court has previously wamed Jackson to avoid the
conflation of these theories:
Plaintiffs appear to be under the misguided belief that a holding by
this Court that the Act is unconstitutional as previously written
would, in effect, serve as a litigation "short-cut." * * * In other
words, Plaintiffs contend that a finding in their favor as to the
facial unconstitutionality of the Act would permit them to proceed
directly to the damages stage, thereby avoiding litigation of their
as-applied claim. Under this theory, Plaintiffs would be entitled to
monetary damages for injuries caused by the enforcement of the
Act without being required to first prove the merits of their as-
applied claim, the litigation of which-unlike their facial
challenge-would require the time and expense of discovery.
Such an argument is patently incorrect. To the extent Plaintiffs
seek compensatory damages for individual injuries allegedly
sustained by application of the Act, they must proceed with
litigation of their as-applied challenges.
Daskalea.¢, 710 F. Supp. 2d at 45. Despite this admonition, Jackson never explains how
Plaintiffs would "proceed with litigation of their as-applied challenges" within a class action. Id.
Plaintiffs’ constitutional claims are predicated upon alleged violations of the Due Process
Clause, which provides that "[n]o personal shall . . . be deprived of life, liberty, or property,
without due process of law." There are three basic elements to a procedural due process claim:
there must be (l) a deprivation; (2) of life, liberty, or property; (3) without due process of law.
Propert v. District of Columbia, 948 F.2d 1327, 1331 (D.C. Cir. 1991). lt has long been
established that "[t]he fundamental requirement of due process is the opportunity to be heard ‘at
a meaningful time and in a meaningful manner."’ Mathews v. Eldridge, 424 U.S. 319, 333
(1976) (quoting Armstrong v. Manz0, 380 U.S. 545, 552 (1965)). However, it is equally
fundamental that due process is "not a technical conception with a fixed conception unrelated to
time, place and circumstances"; rather, it is "flexible and calls for such procedural protections as
the particular situation demands." Ia'. at 334.
21
Consistent with these principles, "[t]he precise form of notice and the precise kind of
hearing required [in a given circumstance] depend[] upon a balancing of the competing public
and private interests involved." Propert, 948 F.2d at 1332.12 ln determining what process is
due, three distinct factors are considered-commonly referred to as the "Mathews factors," a
reference to the Supreme Court decision in which they were first articulated:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the
[g]overnment’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.
Mathews, 424 U.S. at 335. "Depending on the tilt of the Mathews balance in a particular case,
the usual requirement of written notice may be relaxed, and the timing and content of the hearing
may vaiy." Propert, 948 F.2d at 1332 (internal citation omitted); see also United States v. James
Daniel Gooa’ Real Prop. , 510 U.S. 43, 53 (1993) (whether a post-deprivation hearing will suffice
"requires an examination of the competing interests at stake, along with the promptness and
adequacy of later proceedings."). Given the intensely fact-based nature of the inquiry, the
Supreme Court has chastised courts that have adopted a "sweeping and categorical" approach to
due pm¢ess. cuban v. H@mar, 520 U.s. 924, 931 (1997).‘3
12 ln his submissions, Jackson relies heavily upon the United States Court of Appeals for the
District of Columbia Circuit’s decision in Propert, but that case was a single-plaintiff case and
did not involve a class action. Moreover, the defendant in that case conceded that its policy was
to provide no pre- or post-deprivation hearing of any kind, and it was that concession that the
Court of Appeals found "fatal" to the policy’s constitutional validity. Propert, 948 F.2d at 1333.
13 The Court notes that its conclusions here also hold true for Plaintiffs’ constitutional claims to
the extent they are based on allegations that Defendants violated the prohibition against
unreasonable searches and seizures under the Fourth Amendment to the Constitution, a
component of Plaintiffs’ claim that is recited, but otherwise igriored, in l ackson’s submissions.
Even assuming the applicability of that prohibition in this case, determining the reasonableness
of a particular search or seizure demands "a careful balancing of the nature and quality of the
22
ln his Motion for Certification, Jackson does not even argue in favor of a "one-size-fits-
all" or "across-the-board" approach that could be applied in this case. Even if he had, the Court
agrees with Magistrate Judge Kay that such an approach would be unworkable. See Report and
Recommendation at 20 (concluding that "liability determinations will be based on individual
circumstances"). As the Court has previously had the occasion to observe, the operative iteration
of the Act during the putative class period conferred "considerable discretion" upon the Humane
Society and its employees. Daskalea 1, 480 F. Supp. 2d at 33. Once an animal had been deemed
to be neglected, the statute only required the Humane Society to use "‘reasonable diligence to
793
give notice to the animal’s owner, but did not specify the form or timing of the notice. Id.
(quoting D.C. CODE § 22-1004(b)(l) (2002)); see also Daskaleag, 577 F. Supp. 2d at 87-88.
Similarly, the Act left it to the Humane Society to determine the post-seizure actions that it
would apply in a given case: among other things, it could retum the animal to the owner, retain
the animal, place the animal up for adoption, or humanely destroy the animal. See D.C. CODE §
22-1004 (2002). And the Act did not attempt to define how the Humane Society might choose
among these options. ln short, the Act was sufficiently open-ended that the Humane Society’s
enforcement and administration of the Act were largely left to its discretion, and it therefore
comes as no surprise that there would be considerable variation among class members’
experiences. Cf Dukes, 131 S. Ct. at 2554 (faulting plaintiffs for failing to identify "a common
mode of exercising discretion"). lndeed, members of the proposed class allegedly suffered a
intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake." Graham v. C0nnor, 490 U.S. 386, 396 (1989) (intemal
quotation marks omitted; citations omitted). lt is well-established that "[t]his balancing test is . .
. fact-intensive; it looks to the totality of the circumstances . . . at the time of the challenged
conduct." Martin v. Malhoyt, 830 F.2d 237, 261 (D.C. Cir. 1987).
23
wide range of deprivations, were provided with different kinds of notice at different points in
time, and claim distinct injuries.
Of these differences, perhaps most important is that the putative class members are
alleged to have suffered a wide range of deprivations: some pets were temporarily detained,
others were permanently destroyed, and still others were forcibly sterilized or returned to their
owners only after requiring the payment of fees and expenses or unwanted medical treatment.
See First Am. Compl. 11 71. This is far from a trivial point; it goes to the very heart of Plaintiffs’
claims. This is because the due process inquiry turns in part on "the private interest . . . affected
by the official action," Mathews, 424 U.S. at 335, and "[t]he magnitude of [the] deprivation is of
critical significance in the due process calculus," Lassiter v. Dep ’t of Soc. Servs. of Durham
Cnty., 452 U.S. 18, 40 (1981) (Burger, J., dissenting) (citing Goldberg v. Kelly, 397 U.S. 254,
263 (1970)). lndeed, this Court has previously had the opportunity to explain why the magnitude
of the deprivation may be significant in this case, observing that Defendants "must provide an
owner notice and an opportunity for a hearing prior to permanently terminating an individual’s
interest in a seized animal," Daskalea 1, 480 F. Supp. 2d at 34 (emphasis added), but cautioning
that "animal cruelty or neglect will often justify [an] immediate seizure" temporarily terminating
an individual’s interest in a seized animal even in the absence of a pre-deprivation opportunity to
be heard, id. at 35; see also Propert, 948 F.2d at 1332 ("[A]lthough the provision of procedural
safeguards sometimes may be postponed, such safeguards must be provided prior to the time that
a deprivation becomes final.") (citation omitted). ln more concrete tenns, an owner whose pet
was humanely destroyed or put up for adoption will not be similarly situated to an owner whose
pet was merely detained and retumed to its owner. See Wall v. City of Broo/§Hela', 406 F.3d 458,
460 (7th Cir. 2005) (Posner, J.) (concluding that the "temporary deprivation" of a dog requires
24
only “modest process"). At bottom, the process that was constitutionally due will necessarily
vary depending upon the nature and magnitude of the deprivation at issue.14
Similarly, the process required will vary depending upon the strength of the Defendants’
interest in a given case. See Mathews, 424 U.S. at 335. ln this regard, the exigency of the
circumstances that lead to a particular seizure will affect the nature of the procedures required.
Simply by way of example, assume that Defendants provided Daskalea and Norris the same
notice and opportunity to be heard. Both Daskalea and Norris had their pets seized from their
automobiles while they were at another location. See First Am. Compl. 1111 31, 46. However,
whereas it is alleged that Norris "parked her car under a large shaded tree . . . [,] cracked all four
car windows, [and] left food and water," id. 11 46, no comparable allegations appear with respect
14 lndeed, the Court need look no further than the three named plaintiffs to conclude that there is
considerable variation among the deprivations allegedly suffered. Daskalea’s pet, which was
purchased in part for breeding, was temporarily detained and "forcibly sterilized" while in
Defendants’ custody; Norris’s dog was temporarily detained and released upon Norris’s
agreement to pay certain fees and ensure that her dog got "unnecessary medical treatment"; and
Jackson’s dog was temporarily detained and retumed only after he agreed to get his dog "radical
treatment" that led to the dog’s death. First Am. Compl. 1111 34, 41 , 55, 64. As proposed, the
deprivations within the putative class would sweep even more broadly: inevitably, some class
members will have had their dogs retumed to them only after paying for "the expense of . . . care
and provisions," D.C. CODE § 22-1004(a) (2002), others will have had their dogs "place[d] . . .
up for adoption in a suitable home," id. § 22-l004(b)(2)(A); still others will have their dogs
"humanely destroy[ed]" and permanently lost, ia'. § 22-1004(b)(2)(C). Within these categories,
there will be yet more variation, potentially constitutionally significant variation. F or instance,
for those dogs subjected to forced sterilization, it is arguably relevant whether the dog was
purchased or suitable for breeding, such as Daskalea’s, or merely a household pet, such as
Jackson’s. For those dogs that were temporarily detained but not destroyed, the length of the
detention will inevitably vary. See Mathews, 424 U.S. at 341 ("[T]he possible length of
wrongful deprivation of benefits . . . is an important factor in assessing the impact of official
action on the private interests."). ln other words, the alleged deprivations, and by extension the
process that was constitutionally required, will differ considerably from case to case.
Furthermore, although the Court need not reach the issue, the Court notes that there is some
authority from other jurisdictions suggesting that a temporary dispossession of personal property
may, in some circumstances, not even rise to the level of an actionable deprivation. See, e.g.,
Gall v. City of Vidor, 903 F. Supp. 1062, 1066 (E.D. Tex. 1995); Kostiuk v. T own of Riverheaa',
570 F. Supp. 603, 608 (E.D.N.Y. 1983)
25
to Daskalea. All other things being equal, it is at least arguable that Defendants’ interest in
seizing Daskalea’s dog would be stronger than their interest in seizing Norris’s dog. While this
may seem particularized, the Due Process Clause is fact-specific and only "calls for such
procedural protections as the particular situation demands." Mathews, 424 U.S. at 334.
Likewise, there are important variations within the class not just as to the process that
may have been constitutionally due, but also as to the process that was actually provided. ln this
regard, Jackson has never suggested that the form and the timing of the notice and the
opportunity to be heard provided to class members were consistent or even similar across the
class. lndeed, the Court need look no further than the differences among the three named
plaintiffs to concluderthat this was not the case. According to the Complaint, Jackson was
present at the time his pet was seized by the Humane Society, meaning that he was given
contemporaneous, if not prior, notice of the deprivation. See First Am. Compl. 11 61. ln contrast,
Daskalea and Norris, and certainly other class members, had their pets seized while they were in
another location. Ia’. 1111 36, 48. More broadly, given the open-endedness of the Act, and the
discretion afforded the Humane Society’s law enforcement officers, there is no doubt that the
process actually afforded to class members varied, which for obvious reasons has a central
bearing on the validity of Plaintiffs’ claims that they were denied due process.15 See Lightfoot,
273 F.R.D. at 331 ("[T]here is no definitive notice period supplied by Mathews or its progeny.")
(citation omitted).
15 Nor is it likely that the Defendants’ ability to provide notice was consistent from case to case.
Unlike the towing of automobiles at issue in Propert, where the owner’s identity could be easily
ascertained by licensing and registrations records, see Propert, 948 F.2d at 1334, class members’
pets may have been seized while in an owner’s vehicle or home, in a stranger’s vehicle or home,
or stray in the streets; some pets may have been tagged, others may not have been identified.
26
Collectively, these considerations illustrate how Plaintiffs’ as-applied challenges to
Defendants’ administration and enforcement of the Act are not amenable to resolution on a class-
wide basis. Despite Jackson’s mantra that "the prior Act fails to provide due process to pet
owners," Pl.’s Certif Reply at 5, this Court agrees with Magistrate Judge Kay that "liability
detenninations will be based on individual circumstances," Report and Recommendation at 20.
Simply put, Jackson has framed his claims and the class claims with such a level of generality
and abstraction as to render them essentially meaningless. lndeed, his "allegations reduce to an
empty invocation of the legal standard goveming procedural due process claims generally."
Lighzfoot, 273 F.R.D. at 325. From this perspective, Jackson’s proffered "common question" is a
perfect illustration of the United States Court of Appeals for the District of Columbia Circuit’s
464
sensible observation that, at a sufficiently abstract level of generalization, almost any set of
claims can be said to display commonality."’ Love v. Johanns, 439 F.3d 723, 729-30 (D.C. Cir.
2006) (quoting Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. l998)). If the Court
were to accept such a formulation, it would effectively be forced into the uncomfortable position
of relying upon the "sweeping and categorical" approach to due process rejected by the Supreme
Court. Gilbert, 520 U.S. at 931.
lnstructive in this regard is the United States District Court for the Northern District of
lllinois’s decision in Jones v. Takaki, 153 F.R.D. 609 (N.D. lll. 1993). There, the court found
that typicality was lacking where the plaintiffs "asserted a course of conduct and practice . . . of
not affording persons whose property ha[d] been seized illegally with a prompt post-deprivation
hearing." Ia'. at 61 l. Ultimately, the court concluded that the "alleged practice [was] insufficient
to meet the typicality requirement," reasoning that "[w]hether a delay in instituting [hearing]
proceedings violate[d] due process entail[ed] a fact specific inquiry to be made on a case by case
27
basis," with reference to such factors as the length of the delay, the reason assigned for the delay,
whether the plaintiff asserted a right to a hearing, and the prejudice to the plaintiff Id. at 61 l.
Because the putative class representatives could not establish "the bulk of the elements of each
class member’s claim in the process of proving their own, they . . . failed to meet the typicality
requirement." Ia'. at 612.
Those observations apply with no less force here. ln the final analysis, Jackson has failed
to supply a basis that would allow this Court to conclude that his claims are typical of claims that
are amenable to resolution on a class-wide basis. There is no reason to believe that this action
can be efficiently maintained as a class or that Jackson’s interests sufficiently align with those of
the class. See Lorazepam, 202 F.R.D. at 27 (D.D.C 2001). Accordingly, the Court will deny
Jackson’s Motion for Class Certification based on his failure to show that he satisfies the
typicality requirement under Rule 23(a)(3).
B. Jackson Has Failed to Establish that Certification of the Proposed Class Is
Appropriate Under 0ne of the Subdivisions of Rule 23 (b)
Even where each of the four prerequisites set forth in Rule 23(a) is satisfied, the
proponent of the class bears the further burden of establishing that the class is maintainable
under one of the subdivisions of Rule 23 (b). ln this case, Jackson relies upon subdivisions (b)(l)
and (b)(3). However, for the reasons set forth below, the Court concurs with Magistrate Judge
Kay’s conclusion that Jackson has failed to establish that certification of the proposed class is
appropriate under either of these subdivisions. See Report and Recommendation at 16-25. This
failure provides a sufficient basis for denying Jackson’s Motion for Class Certification, one that
exists separate and apart from Jackson’s failure to satisfy the typicality requirement of Rule
23(a)(3). See supra Part IV.A.
28
1. Certification Under Rule 23(b)(l) ls Inappropriate Because Plaintiffs’
Remaining Claims Seek Individualized Monetary Relief
Quite some time ago, the Supreme Court expressed serious doubt that claims for
individualized monetary relief could be properly certified under subdivisions (b)(l) and (b)(2) of
Rule 23, as opposed to subdivision (b)(3). See Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121
(1994) (per curiam). Recently, those expressions of doubt became law, when the Supreme Court
held in Dukes that "individualized monetary claims belong in Rule 23(b)(3)," Dukes, 131 S. Ct.
at 2558, "at least where . . . the monetary relief is not incidental," id. at 2557.
True, the Supreme Court’s decision in Dukes was rendered upon review of a motion for
class certification under subdivision G))(Z), not subdivision (b)(l), but neither the language nor
the logic of the Court’s holding was so limited. First, the fundamental underpinning of the
Court’s holding was that "[t]he procedural protections attending the (b)(3) class_predominance,
superiority, mandatory notice, and the right to opt out_are missing from [subdivision] (b)(2),"
Dukes, 131 S. Ct. at 2558, and those procedural protections are no less absent from subdivision
(b)(l), lndeed, the Supreme Court acknowledged as much, noting that "unlike (b)(l) . . . classes,
the (b)(3) class is not mandatory; class members are entitled to receive ‘the best notice that is
practicable under the circumstances’ and to withdraw from the class at their option."16 Dukes,
131 S. Ct. at 2558 (citing FED. R. CIV. P. 23(c)(2)(B)). Second, the Supreme Court plainly
16 Parenthetically, the Court notes that Jackson has never asked this Court to certify a class
under subdivision (b)(l) while engrafting onto that subdivision the procedural protections that
accompany classes certified under subdivision (b)(3), including opt-out rights. Even if he had,
adopting such an approach in this case by allowing parties to opt out of the class would
fundamentally undermine Jackson’s proffered justiHcations for certification under subdivision
(b)(l)_namely, that individual adjudications would create a risk of establishing "incompatible
standards of conduct" or be practically "dispositive of the interests of the other members not
parties to the individual adjudications." FED. R. CIV. P. 23(b)(1)(A)-(B); see also Keepseagle v.
J0hanns, 236 F.R.D. 1, 3 (D.D.C. 2006) ("[O]pt outs should not be permitted if it would
undermine the policies behind (b)( 1) . . . certification.") (citing Eubanks v. Billington, 110 F.3d
87, 94-95 (D.C. Cir. 1997)).
29
viewed subdivisions (b)(l) and (b)(2) to be in one category and subdivision (b)(3) to be in a
category of its own, observing that unlike the "adventuresome innovation" of Rule 23(b)(3),
"[c]lasses certified under (b)(l) and (b)(2) share the most traditional justifications for class
treatment-that individual adjudications would be impossible or unworkable, as in a (b)(l) class,
or that the relief sought must perforce affect the entire class at once, as in a (b)(2) class." Dukes,
131 S. Ct. at 2558 (intemal quotation marks omitted; citation omitted).
Afforded a fair construction, there is every reason to believe that the Supreme Court’s
holding that "individualized monetary claims belong in Rule 23(b)(3)," Dukes, 131 S. Ct. at
25 58, "at least where . . . the monetary relief is not incidental,” ia'. at 25 57, applies with equal
force to subdivision (b)(l ). lndeed, in the short time since Dukes was decided, the one court that
has had the opportunity to address the question has reached the same conclusion. See Altier v.
Catastrophe Response, LLC, Civil Action Nos. 11-241, 11-242, 2011 WL 3205229, at * 14-1 5
(E.D. La. July 26, 201 1) (reading Dukes as holding that certification under Rule 23(b)(l) is
inappropriate where monetary relief predominates). Even before Dukes, several courts had
concluded that certification under subdivision (b)(l) is inappropriate where the predominant
relief sought by the class is individualized monetary damages. See, e.g., Casa Orlando Apts.,
Ltd. v. Fed. Nat’l Mortg. Ass ’n, 624 F.3d 185, 197 (5th Cir. 2010); Babineau v. Fed. Express
Corp., 576 F.3d 1183, 1195 (11th Cir. 2009); Zinser v. Accufz``x Research Inst., Inc., 253 F.3d
1180, 1193 (9th Cir. 2001). The Court agrees that this is the proper approach.
The questions that remain are (a) whether Plaintiffs’ extant claims seek monetary relief
on behalf of the class and (b) whether such relief predominates over, or rather is merely
incidental to, other forms of relief. With respect to the second question, this Court has already
held that Plaintiffs’ claims for declaratory and injunctive relief have been rendered moot by
30
virtue of the 2008 Amendment to the Act. See Daskalea,¢, 710 F. Supp. 2d at 41-42. As a result,
monetary relief is now "the sole remedy sought" by Plaintiffs in this action, Richara's, 453 F.3d
at 531 n.8, meaning that the Court need not ask whether monetary relief is the predominant form
of relief or merely "incidenta " to other forms of relief. Cf Dukes, 131 S. Ct. at 2557
(suggesting that it is an open question whether "incidental" claims for monetary relief may be
sought in (b)(2) classes). With respect to the first question, the Court concurs with Magistrate
Judge Kay that class members’ damages in this case will be highly individualized and are not
susceptible to generalized, class-wide proof. See Report and Recommendation at 22 ("[T]he
compensable damages sought by each plaintiff . . . will vary widely based on the value of the
seized pet for breeding purposes, the alleged procedures performed by the [Humane Society], the
length of the pet’s detention, . . . and a host of other factors.") (intemal quotation marks omitted;
citation omitted). lndeed, although Jackson attempts to minimize the difference among class
members’ alleged damages, Jackson concedes that individualized determinations would be
required to assess "[t]he value associated with special pets, such as pedigree dogs, those
maintained for breeding purposes, or specially trained service animals." Pl.’s Certif``. Reply at 16.
Perhaps more importantly, the putative class members are alleged to have suffered a wide range
of deprivations: some pets were temporarily detained, others were permanently destroyed, and
still others were forcibly sterilized or retumed to their owners only after requiring fees and
expenses or unwanted medical treatment. See First Am. Compl. 11 71. The alleged deprivations,
and by extension the resultant damages to the owner, are not consistent from case to case. ln
short, Plaintiffs seek individualized monetary relief. Accordingly, certification under
subdivision (b)(l) is inappropriate,
31
2. Certification Under Rule 23(b)(l) ls Inappropriate Because Jackson
Has Failed to Show that the Subdivision’s Concerns Apply Here
Certification under Rule 23(b)(l) is appropriate where requiring the prosecution of
separate actions by individual class members would run the risk of establishing "incompatible
standards of conduct" for the defendants, FED. R. CIV. P. 23 (b)(l)(A), or where individual
adjudications would, "as a practical matter, . . . be dispositive of the interests of the other
members not parties to the individual adjudications or would substantially impair or impede their
ability to protect their interests," FED. R. CIV. P. 23G))(1)(B). Conceptually, subdivisions
(b)(l)(A) and (b)(l )(B) address "the same fact situation from the defendant[s’] and the class
members’ standpoints respective1y." 2 H. NEWBERG & A. CONTE, NEWBERG 0N CLASS ACTIONS
§ 4:3 (4th ed. 2002). ln this case, Jackson has failed to establish that certification is appropriate
under either subdivision (b)(l)(A) or (b)(l)(B), This provides a sufficient basis for denying
certification under these subdivisions, one that exists separate and apart from the fact that
Plaintiffs seek individualized monetary relief on behalf of the putative class. See supra Part
lV.B.1.
i. Subdivision (b)(l)(A)
Certification is appropriate under subdivision (b)(l)(A) where "prosecuting separate
actions by . . . individual class members would create a risk of . . . inconsistent or varying
adjudications with respect to individual class members that would establish incompatible
standards of conduct for the party opposing the class." FED. R. CIV. P. 23(b)(1)(A). This
language is susceptible to a broad, but ultimately untenable, reading: in the absence of
certification, there will always be the risk that the party opposing the class "may be exposed to
individual suits and conflicting judgments on liability." 2 H. NEWBERG & A. CONTE, NEWBERG
0N CLASS ACTIONS § 414 (4th ed. 2002). Therefore, certification under subdivision (b)(l)(A)
32
requires something more~namely, a legitimate risk that separate actions may establish
"incompatible standards of conduct." FED. R. CIV. P. 23(b)(1)(A). This requirement is an
outgrowth of the justification for certification under subdivision (b)(l)(A)-"that individual
adjudications would be impossible or unworkable." Dukes, 131 S. Ct. at 2558.
ln this case, Jackson’s arguments in favor of certification under subdivision (b)(l)(A) are
summary and unilluminating. ln this regard, he characterizes the basic question in this action as
whether Defendants afforded class members an opportunity to contest "the seizure and tenris of
release [of their pets]," noting that "these provisions did not exist in the defective former
statute,"17 Pl.’s Objections at 5 , and contends that certification under subdivision (b)(l)(A) is
appropriate because "[s]eparate actions by pet owners would create the risk of varying
adjudications with respect to the Defendants’ post-seizure rights and duties, and risk establishing
incompatible standards of conduct for both the District and the individual [Humane Society]
officers," Pl.’s Certif. Mem. at 18-19. The problem with this argument, like so many of the
arguments tendered by Jackson in favor of certification, is that it ignores the fact that this Court
has already dismissed Plaintiffs’ facial challenge to the constitutionality of the Act as moot in
light of the 2008 Amendment to the Act and the implementing regulations. See Daskalea,¢, 710
F. Supp. 2d at 41-42. As a result, Plaintiffs’ claims for forward-looking declaratory and
injunctive relief are no longer at issue in this action. See id. ln other words, in light of
superseding amendments to the Act, this action no longer involves delineating Defendants’
responsibilities to class members_or non-parties similarly situated to class members-in the
17 ln passing and with no meaningful explanation, Jackson appears to suggest that the current
iteration of the Act suffers from similar defects. See Pl.’s Certif. Reply at 12. The simple and
obvious response to this suggestion is that the current iteration of the Act is not at issue in this
action. ln any event, despite Jackson’s apparent belief to the contrary, the regulations
implementing the 2008 Amendment articulate the contours of the procedures for administering
and enforcing the Act. See D.C. MUN. REGS. tit. 24, §§ 1500-1515.
33
f11ture. As it now stands, this is a case about securing monetary relief for class members based
on individualized past harrns. Separate actions and determinations will not create the danger of
conflicting and incompatible court orders goveming Defendants’ conduct. Accordingly,
certification under subdivision Q))(I)(A) is inappropriate.
ii. Subdivision (b)(l)(B)
Certification under Rule 23(b)(1)(B) is appropriate where "prosecuting separate actions
by . . . individual class members would create a risk of . . . adjudications with respect to
individual class members that, as a practical matter, would be dispositive of the interests of the
other members not parties to the individual adjudications or would substantially impair or
impede their ability to protect their interests." FED. R. CIV. P. 23(b)(1)(B). The language of the
subdivision may at first glance appear sweeping, but "courts have long recognized that [its]
meaning . . . is not as broad as the plain language [might] impl[y]." 1n re Tectronics Pacing Sys.,
Inc., 221 F.3d 870, 877 (6th Cir. 2000) (citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 842
(1999)). lndeed, the Supreme Court has counseled against the "adventurous application of Rule
23(b)(1)(B)," Ortiz, 527 U.S. at 845, directing courts to take into account the historical models
for certification under the subdivision and waming that departures from the historical models
should not be undertaken li ghtly, id. at 842.
ln this regard, it is widely recognized that "[t]he traditional . . . use of subsection
(b)(l)(B) class actions is in ‘limited fiind’ cases where claims are aggregated against a res or
preexisting fund insufficient to satisfy all claims." Tectronics, 221 F.3d at 877. Other "classical
examples" include actions by shareholders to fix their rights, actions against a fiduciary to
restore the subject to the trust, and suits to reorganize fratemal benefit societies. See Ortiz, 527
U.S. at 834. All these examples implicate either (a) a shared or collective right or (b) limited
34
funds or resources to be allocated among claimants, with the common thread being that "the
shared character of rights claimed or relief awarded entails that any individual adjudication by a
class member disposes of, or substantially affects, the interests of absent class members." Id.
ln this case, certifying the class proposed by Jackson would constitute a significant and
inappropriate departure from these historical models. First, it is undisputed that there is no
limited fund or resource that would risk being depleted were class members’ claims prosecuted
on an individual basis. Each class member could hypothetically bring a separate action against
the District of Columbia and secure the same monetary relief sought in this action. Second,
because this Court has already held that Plaintiffs’ claims for declaratory and injunctive relief
have been rendered moot by virtue of the 2008 Amendment to the Act, see Daskalea,¢, 710 F.
Supp. 2d at 41-42, the claims that remain in this action are fundamentally retrospective, directed
towards compensating class members for harms they allegedly suffered in the past. ln other
words, in light of superseding amendments to the Act, this action no longer involves delineating
Defendants’ responsibilities to class members_or non-parties similarly situated to class
members-in the future. No truly shared or collective right remains at issue. Third, and perhaps
most importantly, Plaintiffs’ as-applied constitutional challenges to the Act-the only claims that
are afforded any meaningful measure of attention in Jackson’s submissions_turn on
individualized determinations of liability, see supra Part lV.A, and they will require
individualized determinations as to the damages sustained by each class member, see supra Part
IV.B. 1. Given the individualized nature of harm suffered by each class member, the only
practical effect of an individual adjudication would be the possibility that any disposition might
be cited for its precedential or persuasive force, which is insufficient to warrant certification
35
under subdivision (b)(1)(B).111 See Green v. Occidental Petroleum Corp., 514 F.2d 1335, 1340
n.10 (9th Cir. 1976) ("[T]he stare decisis consequences of an individual action . . . can[not]
supply . . . the practical disposition of the rights of the class, or the substantial impairment of
those rights."); see generally 2 H. NEWBERG & A. CoNri-:, NEWBERG oN CLAss AcrioNs § 4:l0
(4th ed. 2002). At bottom, this is a case about securing monetary relief for class members based
on individualized past harms. Under the circumstances presented, there is no reason to conclude
that separate actions "would be dispositive of the interests" of non-participating class members
or "substantially impair or impede their ability to protect their interests." FED. R. CIV. P.
23(b)(1)(B). As such, certification under subdivision (b)(l)(B) is inappropriate.
Notably, Jackson does not cite to a single case where certification was granted under
subdivision (b)(l)(B) under similar circumstances. lnstead, he claims to rely upon what he refers
to as the "govemment entity" or "public utility" application of subdivision G))(I)(B). See Pl.’s
Certif. Reply at 10. However, in making this argument, Jackson appears to be laboring under the
misapprehension that subdivision (b)(l)(B) may be invoked whenever the government is a
named defendant. The essential thrust of his argument is as follows:
The District of Columbia is a named defendant in this action. The
[C]ourt has previously found that plaintiff s claims against the
individual defendants, in their official capacities, is [sic] in effect a
suit against [the] District of Colurnbia also. Accordingly, class
certification pursuant to the government entity application of Rule
23(b)(1)(B) is appropriate.
Pl.’s Certif. Reply at 10; see also Pl.’s Objections at 6 (reiterating this argument verbatim). In a
similar vein, he contends elsewhere that "class actions are a ro er means for challen in
g g
111 Jackson does not, nor could he, argue that a judgment adverse to an individual class member
in one case could be cited as grounds for invoking claim or issue preclusion in a separate action.
36
statutory enactments, because the defendants, as government actors, are required to treat all class
members alike."19 Pl.’s Certif. Mem. at 19.
Quite simply, Jackson’s argument is misguided. While it is entirely non-controversial to
suggest that subdivision (b)(l) may be invoked where the defendant is "obliged to treat the
members of the class alike," Amchem, 421 U.S. at 614, that principle has no application to this
case. True, if Plaintiffs’ facial challenge to the constitutionality of the Act remained viable, there
would be a plausible argument that a determination as to the facial validity of the Act in one
individual action would impair or impede a non-participating class member’s ability to litigate
that issue in a separate action. But Plaintiffs’ facial challenge has been dismissed as moot, and
Plaintiffs’ claims for declaratory and injunctive relief are no longer extant. See Daskalea¢¢, 710
F. Supp. 2d at 41-42. At bottom, this action is now about compensating class members for
harms they allegedly suffered in the past. Because resolution of whether a particular class
member was denied due process will turn on the fact-intensive inquiry demanded by Mathews
and its progeny, see supra Part IV.A, an adjudication of one class member’s claims will not
substantially impair or impede another class member’s ability to pursue his or her claims in a
19 Throughout his submissions, Jackson cites to the same three authorities in support of this
proposition. In the first, the one l ackson relies upon most heavily and the one that he
characterizes as "dispositive," Pl.’s Certif``. Mem. at l7, the United States Court of Appeals for
the District of Columbia Circuit found no occasion to resolve the question whether certification
was appropriate under subdivision (b)(l)(B) because the govemment did not challenge the merits
of the certification ruling on appeal. United States v. Larionojf 533 F.2d 1167, 1181 n.36 (D.C.
Cir. 1976), ajj"d, 431 U.S. 864 (1977). ln the second, a nearly four-decade-old, non-binding
opinion from this Court, the Court merely stated in formulaic fashion the required analysis under
Rule 23, offering no meaningful explanation of how those principles applied to the case. See
Guadamuz v. Ash, 368 F. Supp. 1233, 1235 (D.D.C. 1973). ln the third, a nearly four-decade-
old, non-binding opinion from the United States District Court for the Eastem District of
Pennsylvania, the court merely held that certification under subdivision (b)(l)(B) was
appropriate where the defendant was required to maintain a uniform set of rules and regulations
goveming the responsibilities of the plaintiffs. See Pa. Ass ’n for Retarded Children v.
Commonwealth of Pennsylvania, 343 F. Supp. 272, 291-92 (E.D. Pa. 1972).
37
separate action. ln this legal context, it is entirely unremarkable to suggest that different
outcomes may be reached on the facts presented in different cases.?'o
ln the final analysis, Jackson has failed to provide a credible basis for concluding that
separate actions "would be dispositive of the interests" of non-participating class members or
"substantially impair or impede their ability to protect their interests." FED. R. CIV. P.
23G))(1)(B). Accordingly, certification under subdivision (b)(l)(B) is inappropriate.
3. Jackson Has Failed to Establish that Certification Under Rule
23(b)(3) ls Appropriate
Jackson also seeks certification under Rule 23(b)(3). Certification under subdivision
(b)(3) is appropriate where "the questions of law or fact common to class members predominate
over any questions affecting only individual members, and . . . a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy." Ultimately, "[t]he
object is to get at the cases where a class action promises important advantages of economy of
effort and uniformity of result without undue dilution of procedural safeguards for members of
20 The same holds true for Jackson’s related argument that certification under (b)(l)(B) is
appropriate because some of the Defendants have raised, or are expected to raise, defenses
concerning qualified immunity. Pl.’s Certif. Mem. at 18. lri this regard, Jackson contends that
"[a] decision adverse to the Plaintiffs on . . . these governmental immunity defenses would, as a
practical matter, substantially impair or impede the ability of non-parties to protect their
interests." Ia'. However, because any qualified immunity defense would necessarily mirror
Plaintiffs’ as-applied challenges to the Defendants’ administration and enforcement of the Act,
any determination in this regard would be similarly individualized and thus have no discernible
actual or practical effect in separate actions apart from possibly having some precedential or
persuasive value, which alone is insufficient. Furthermore, the qualified immunity inquiry tums,
in part, on a reasonableness inquiry that will necessarily vary from case to case, limiting the
precedential and persuasive value of a decision from one case in another. See Kalka v. Hawk,
215 F.3d 90, 94 (D.C. Cir. 2000) ("Qualified immunity shields officials from liability for
damages so long as their actions were objectively reasonable, as measured in light of the legal
rules that were ‘clearly established’ at the time of their actions.") (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818-19 (1982)). In short, despite Jackson’s protestations to the contrary, there is
no reason to presume that "thousands of plaintiffs [would be asked] to live with the immunity
and privilege decision arrived at in the litigation of a single claimant." Pl.’s Objections at 9.
38
the class or for the opposing party." Benjamin Kaplan, Continuing Work of the Civil Committee,
81 HARV. L. REV. 356, 390 (1967). ln this case, Jackson has failed to show that either the
"predominance" or "superiority" criteria are satisfied.
First, the predominance inquiry "duplicates the commonality analysis in many respects,"
albeit "delving further into . . . the relative importance of the common issues to the case."
Barnes v. District of Columbia, 242 F.R.D. 113, 123 (D.D.C. 2007) (citation omitted). In other
words, one "requires that common questions exist"; the second "requires that they predominate."
2 H. NEWBERG & A. CoNTE, NEWBERG oN CLAss ACTIONS § 4:22 (4th ed. 2002). Generally
speaking, predominance will exist where issues that may be proven or disproven through
"generalized evidence" on a "simultaneous, class-wide basis" overshadow issues that require
examination of each class member’s individualized circumstances. In re Vitamins Antitrust
Litig., 209 F.R.D. 251, 262 (D.D.C. 2002) (internal quotation marks omitted; citation omitted).
The Supreme Court has characterized the showing required for predominance as "far more
demanding" that the one required to satisfy the commonality requirement under Rule 23(a).
Amchem, 521 U.S. at 624. At bottom, the essential question is whether the proposed class is
"sufficiently cohesive to warrant adjudication by representation." ld. at 623.
ln this case, the Court agrees with Magistrate Judge Kay that certification is inappropriate
under subdivision (b)(3) because Jackson has failed to show that common questions predominate
over individual ones. ln this regard, the essential underpinning of Jackson’s argument is that
"[t]he procedural due process [inquiry] . . . is the same for all plaintiffs, because the statute is the
same," Pl.’s Objections at 14, and he claims that "[w]hether the challenged Act deprived
plaintiffs of their constitutionally protected rights -the liability issue in this case - is subject to
generalized proof, because every seizure was made pursuant to the same statute." Pl.’s Certif.
39
Mem. at 20. However, as explained in depth elsewhere in this opinion, Jackson’s argument is
misplaced, and the Court concurs with Magistrate Judge Kay that liability determinations will
necessarily be individualized and that Plaintiffs’ claims are not amenable to class-wide
resolution. See supra Part IV.A. Furthermore, despite Jackson’s efforts to minimize the
difference between class members, it is also clear that this action would require individual
determinations as to each class member’s damages.21 See supra PartlV.B.1.
Second, the superiority requirement ensures that resolution by means of a class action
will ‘achieve economies of time, effort, and expense, and promote . . . uniformity of decision as
to persons similarly situated, without sacrificing procedural faimess or bringing about other
undesirable consequences."’ Vista Healthplan, 246 F.R.D. at 360 (quoting Amchem, 521 U.S. at
615). This Court concurs with Magistrate Judge’s Kay’s assessment that Jackson’s "cursory"
treatment of the factors relevant to establishing superiority is insufficient to demonstrate that
allowing this case to proceed as a class action would be superior to other means of adjudication.
Report and Recommendation at 25. Jackson’s arguments are made in summary form and are
unaccompanied by any meaningful factual elaboration. Pl.’s Certif. Mem. at 22-23. Again, the
Court reiterates that it is Jackson’s burden to establish the propriety of certification, and he has
failed to discharge that burden. ln any event, for all the reasons previously discussed, the Court
21 The Court notes that damages will require individualized determinations in this case not
because the presence of individualized damage determinations is necessarily fatal to certification
under subdivision (b)(3)_district courts may, in appropriate circumstances, bifurcate liability
and damage determinations or use a variety of other case management tools to minimize the
adverse impact of individualized damage questions~but rather because Jackson claims that
damages are "subj ect to generalized, class-wide proof’ and contends that the question of
damages actually supports certification, Pl.’s Certif Mem. at 21-22. However, the nature of the
damages inquiries in this case, if anything, counsels against certification, See supra Part lV.B.l.
40
remains unconvinced that certification would bring with it advantages of economy or uniformity
of results.zz
In sum, the Court concludes that Jackson has failed to show that either the
"predominance" or "superiority" criteria are satisfied in this case. Accordingly, certification
under subdivision (b)(3) is inappropriate.
C. Plaintiffs’ Counsel Will Be Required to File a Formal Suggestion of Norris ’s
Death with the Court
There is one final, unrelated matter to address. During a status hearing held on June 14,
2010, Plaintiffs’ counsel orally advised the Court that Norris is now deceased. See Order (June
14, 2011) at 1. The procedure to be followed after a party dies during the pendency of an action
is prescribed by Rule 25(a)(1):
lf a party dies and the claim is not extinguished, the court may
order substitution of the proper party. A motion for substitution
may be made by any party or by the decedent’s successor or
representative. lf the motion is not made within 90 days after
service of a statement noting the death, the action by or against the
decedent must be dismissed.
FED. R. CIV. P. 25(a)(1). However, "the ninety-day period under Rule 25(a)(l) is not triggered
unless a formal suggestion of death is made on the record, regardless of whether the parties have
knowledge of a party’s death." Lightfoot v. District of Columbia, 629 F. Supp. 2d 16, 18 (D.D.C.
2009) (intemal quotation marks omitted; citation omitted); see also McSurely v. McClellan, 753
F.2d 88, 98 (D.C. Cir.) ("[A] suggestion of death does not set in motion Rule 25(a)(1)’s ninety-
day limitation unless the suggestion ‘identif[ies] the successor . . . who may be substituted as a
22 Furtherrnore, there is no reason to believe that the issues with certification identified by
Magistrate Judge Kay and this Court could be softened by the judicious application of Rule
23(0)(4) and (5), or by any of the other case management tools available to a court in overseeing
a class action. ln any event, Jackson has failed to articulate any specific proposal that would
allow the Court to reach that conclusion.
41
party."’) (quoting Rende v. Kay, 415 F.2d 983, 986 (D.C. Cir. 1969); notations in original), cert.
denied, 474 U.S. 1005 (1985). Plaintiffs’ counsel’s oral representations in open court were not
sufficient to trigger Rule 25(a)(1)’s ninety-day deadline to file a motion for substitution.
Accordingly, the Court will require Plaintiffs’ counsel to file a formal suggestion of death with
the Court by no later than August 24, 201 1. Any party wanting to file a motion for substitution
will have to and including November 22, 2011 to do so. lf no motion for substitution is filed by
the designated date, the Court will dismiss Norris’s claims from this action. ln addition, the
Court requests that Plaintiffs’ counsel exercise his best efforts to promptly detennine whether an
estate was opened at the time of Norris’s death or whether there is any other appropriate
successor or representative who might seek to be substituted in Norris’s place so that the
resolution of this action is not further delayed.
V. CONCLUSION
For the reasons set forth above, the Court concludes that Jackson has failed to establish
that he satisfies the typicality requirement under Rule 23(a)(3) and that certification is
appropriate under any of the subdivisions of Rule 23(b). Accordingly, the Court will overrule
Jackson’s Objections, adopt Magistrate Judge Kay’s Report and Recommendation, and deny
Jackson’s Motion for Class Certification. An appropriate Order accompanies this Memorandum
Opinion.
Dare: Augusrio, 2011 m )