Borum v. Brentwood Village, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ADRIANN BORUM, et al., :
:
Plaintiffs, : Civil Action No.: 16-1723 (RC)
:
v. : Re Documents Nos.: 117, 123, 128
:
BRENTWOOD VILLAGE, LLC, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO SUBSTITUTE CLASS
REPRESENTATIVE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ CROSS-MOTION
TO DECERTIFY CLASS; GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE UNDER SEAL
I. INTRODUCTION
In the latest development in this contentious class action, Plaintiffs move to substitute the
current class representative, which the Court earlier found inadequate, while Defendants
challenge the proposed substitute representative and cross-move for decertification. The Court
ultimately agrees with both parties in part, finding that the proposed substitute representative
brings claims typical of the class on only some of Plaintiffs’ claims. The Court accordingly
grants in part and denies in part both motions.
The Court originally certified a class of plaintiffs bringing claims for violations of the
Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601–19, and D.C. Human Rights Act (“DCHRA”),
D.C. Code §§ 2-1401 to 2-1404, in February 2018. Plaintiffs, residents of the Brookland Manor
apartment complex and community organization One D.C., alleged that the planned
redevelopment of the complex by Defendants would have a disparate impact on residents based
on their familial status. Plaintiffs also alleged that some of Defendants’ statements made in
connection with the redevelopment were discriminatory statements under the FHA and DCHRA.
After Defendants moved to decertify the class, the Court found the current class representative
inadequate in January 2019 and gave Plaintiffs 30 days to find a suitable substitute. Plaintiffs
have now moved to substitute Ms. Marita Moore (“Moore”) as representative of the class.
Defendants argue—quite forcefully—that the class should be decertified because Moore is not a
member of the class, does not bring claims that are typical of the class, and is an inadequate class
representative.
The Court finds merit to some of Defendants’ arguments, but not enough to warrant
denying Moore’s substitution as class representative on all claims. It finds that Moore brings
typical claims and is an adequate class representative with respect to Plaintiffs’ claims of
disparate impact discrimination. However, it concludes that Moore does not bring
discriminatory statements claims that are typical of the class. Exercising its discretion in
structuring the class to best serve the efficient administration of this case, the Court decertifies
the class as to the discriminatory statements claims but otherwise grants the motion to substitute.
II. BACKGROUND
A. Procedural History
The Court has already set out the facts underlying Plaintiffs’ class claims in detail in its
prior opinions. See Borum v. Brentwood Vill., LLC (“Borum I”), 218 F. Supp. 3d 1, 5–8 (D.D.C.
2016); Borum v. Brentwood Vill., LLC (“Borum II”), 324 F.R.D. 1, 6–7 (D.D.C. 2018); Borum v.
Brentwood Vill., LLC (“Borum III”), 329 F.R.D. 90, 91–93 (D.D.C. 2019). It assumes
familiarity with those prior opinions and only briefly summarizes the procedural history leading
to the present motions.
Original plaintiffs Adriann Borum, Loretta Holloman, and One D.C. filed this case on
August 25, 2016, bringing claims against defendants Brentwood Village, LLC, Mid-City
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Financial Corporation, and Edgewood Management Corporation, for disparate impact
discrimination and discriminatory statements in violation of the FHA and DCHRA. Compl.,
ECF No. 2. They alleged that the defendants’ proposed redevelopment plan for the Brookland
Manor apartment complex, which would reduce the number of three-bedroom apartments and
fully eliminate four- and five-bedroom apartments from the redesigned property, would have a
disparate impact on families based on their familial status, in violation of the FHA and DCHRA.
Id. ¶¶ 140–62. And they alleged that the defendants had further violated the FHA and DCHRA
by making statements that discriminated against families in connection with the proposed
redevelopment. Id. ¶¶ 163–78.
After the parties stipulated to the dismissal of the claims against Brentwood Village,
LLC, see Stipulation of Dismissal, ECF No. 12, and Holloman voluntarily dismissed her claims
on November 27, 2017, see Order Granting Unopposed Mot. for Voluntary Dismissal, ECF No.
56, the Court certified a class of Brookland Manor plaintiffs on February 12, 2018, see Borum II,
324 F.R.D. at 20. The Court certified the class of:
All individuals who reside at Brookland Manor in a three-, four-, or five-bedroom
unit that houses one or more minor child and his or her guardian, and are at risk of
being displaced from a three-, four-, or five-bedroom unit at Brookland Manor as
a direct result of the proposed redevelopment.
Id. In doing so, the Court rejected Defendants’ argument that a class that included
individuals who do not qualify for familial status under the FHA or DCHRA—here, individuals
living in the same unit as minor children but who were not themselves parents or guardians of
minor children—was overbroad. See id. at 12–13. The Court specifically found that such
individuals “ha[d] standing to sue under the FHA,” stood to “suffer the same injury-in-fact as the
parents and minors contained within the class—displacement due to the Defendants’
redevelopment plan,” and sought the same relief, “an injunction ordering Defendants to alter
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their redevelopment plan.” Id. at 13. The Court also rejected Defendants’ argument that Borum
was an inappropriate representative for the class. While Defendants argued that Borum’s claims
were not typical of the class because, inter alia, she “ha[d] ‘non-protected individuals’ (her adult
children) living with her,” id. at 16, the Court explained that the defenses Defendants claimed
applied to Borum also applied to other class members, id. at 17. And the Court disagreed that a
purported dispute amongst putative class members regarding whether the development should go
forward created an unsurmountable conflict of interest for Borum. See id. at 17–19.
On August 10, 2018, Defendants moved to decertify the class. See Defs.’ Mem. Supp.
First Mot. Decertify Class, ECF No. 72; Borum III, 329 F.R.D. at 92. Defendants argued that
Borum no longer adequately represented the interests of the class because she had been issued a
notice to vacate and would soon be facing eviction. See Borum III, 329 F.R.D. at 92–93. And
Defendants contended that “decertification ‘[was] the appropriate step’ because ‘it [was] unlikely
that a substitute w[ould] be found,’” id. at 100 (quoting Defs.’ Mem. Supp. First Mot. Decertify
14), re-iterating their argument that there was “substantial evidence that many residents . . .
disagree[d] with the objectives of th[e] litigation,” id. at 101 (quoting Defs.’ Mem. Supp. First
Mot. Decertify 14). On January 7, 2019, the Court denied the motion. See Borum III, 329
F.R.D. at 101. While the Court agreed that Borum’s situation created a conflict that rendered her
an inadequate class representative, it found no reason to decertify the class before giving
Plaintiffs the opportunity to substitute another representative. Id. at 100–01. The Court again
rejected Defendants’ argument that there was a conflict amongst the class, noting that they
offered no evidence beyond that already rejected in Borum II. Id. at 101.
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B. The Proposed Substitute Representative
Plaintiffs filed their motion to substitute Moore as class representative on February 6,
2019. See Pls.’ Mot. Substitute, ECF No. 117. In a declaration attached to the motion, Moore
represents that she has been a resident of Brookland Manor since 1974. See Decl. of Marita
Moore ¶ 1, Pls.’ Mot. Substitute Ex. A., ECF No. 117-3. She currently shares a five-bedroom
apartment with her two sisters, Evelyn Moore and Melinda Moore; Rajon Edwards, Evelyn
Moore’s nine-year old grandson; and Chyler Smith, Evelyn Moore’s twelve-year old
granddaughter. Id. ¶ 2. Moore also represents in the declaration that her niece Denver Moore,
who is nineteen, lived in the apartment until the fall of 2017, continues to live in the apartment
during breaks in the school year, and “will return to full-time residence in the apartment” after
graduating from college. Id. ¶ 3.
Moore indicates in the declaration that she “know[s] that Mid-City Financial intends to
redevelop Brookland Manor Apartments,” which will involve tearing down the existing
apartments. Id. ¶ 4. While she acknowledges that Defendants have “told [her] and other tenants
that current residents in ‘good standing’ will be able to live in the new property,” id. ¶ 5, she also
indicates that she has been informed “that there will be no four- or five-bedroom apartments at
the redeveloped property,” id. ¶ 6. Moore also explains in the declaration why, given her
family’s current situation, she will not be able to remain a resident of Brookland Manor should
the redevelopment proceed as currently planned. See id. ¶¶ 9–12. She concludes by stating that
she “ha[s] become familiar with this case, including the facts that relate to the impact the
redevelopment will have on families,” and that she has “attended numerous community meetings
related to the redevelopment” over the years. Id. ¶ 15.
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Moore was deposed on February 22, 2019. See Moore Dep., Decl. of John Byron Ex. E,
ECF No. 124-5. During her deposition, Moore made a number of statements that potentially or
directly contradicted some of the statements she made in her declaration. She acknowledged that
she was not sure she had continuously lived at Brookland Manor for the past thirty years. Id. at
126:5–128:12. Whereas she had indicated in her declaration that Rajon Edwards was Evelyn
Moore’s adopted grandson, see Moore Decl. ¶ 2, she noted in the deposition that Evelyn Moore
only had legal custody of Rajon Edwards. Id. at 22:1–12. And she explained that Denver Moore
never actually stayed the night in the apartment, and did not appear to have plans to come back
to live there after college. See Moore Dep. 36:5–19.
Moore provided somewhat confusing statements on a range of other topics at the
deposition. While she stated that she had agreed to become class representative “to help those
out that need[] four and five bedroom[s] . . . like [her]self,” id. at 114:17–21, Moore was unsure
about the next steps in the litigation, the exact nature of the claims brought, and the size of the
class. E.g. id. at 115:1–116:15. She initially indicated that she was not worried her family
would be displaced as a result of the redevelopment, see id. at 81:13–82:1, although she later
noted “[i]f I sit up and worry about not having a place to go . . . I will be in worse condition than
I am now,” id. at 140:17–23. She also indicated that she did not remember any defendant
“saying that families would not be welcomed at the redeveloped [property],” or “ever sa[ying]
anything to [her] that ha[d] caused [her] harm.” Id. at 89:23 – 90:10. And, although she recalled
receiving Defendants’ interrogatories, see id. at 137:3–6, she did not remember preparing her
answers or signing them, e.g. id. at 100:5–7; 137:8–10. After Defendants followed up by asking
how frequently Moore had met with her attorneys since signing on as class representative a
month earlier, she was unable to remember a specific number of times. See id. at 119:25–120:3
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(four meetings altogether); id. at 138:16–139:19 (up to six meetings); id. at 156:3–20 (up to six
phone conversations in addition to in-person meetings); id. at 157:12–16 (potential additional in-
person meetings “for other little things, but I can’t recall what it was”).
III. LEGAL STANDARD
“After a class is initially certified, Rule 23 expressly grants courts the discretion to revisit
the propriety of continued class certification in later stages of litigation.” DL v. District of
Columbia, 312 F.R.D. 1, 6 (D.D.C. 2015) (citing Fed. R. Civ. P. 23(c)(1)(C)). “[A] district
court’s order . . . granting class status is inherently tentative,” Reynolds v. Sheet Metal Workers,
Local 102, 702 F.2d 221, 226 (D.C. Cir. 1981) (quoting Coopers & Lybrand v. Livesay, 437 U.S.
463, 469 n.11 (1978)), and the D.C. Circuit has emphasized that “class certification problems are
constantly subject to reconsideration as the facts develop,” id. “As the proponent of continued
class certification, Plaintiffs [retain] the burden of establishing that [all] of the requirements for
class certification . . . are met.” Lightfoot v. District of Columbia, 246 F.R.D. 326, 332 (D.D.C.
2007) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997)).
IV. ANALYSIS
After this Court determined that Borum was an inadequate representative for the class of
Brookland Manor residents, Plaintiffs now move to substitute Moore as class representative.
Repeating much of the same arguments they made in their opposition to class certification,
Defendants oppose the substitution and renew their motion to decertify the class. Before
addressing these arguments, the Court must note that, as Plaintiffs point out in their opposition,
Defendants’ arguments appear aimed more at the merits of this case than at class certification
issues. And Defendants’ aggressive characterization of this case as a class action run amok, led
by class counsel unmoored from the interests of a class that actively desires the redevelopment,
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has little basis in the record before the Court and distracts from Defendants’ meritorious
arguments.
With that being said, the Court addresses in turn Defendants’ three arguments for
rejecting Moore’s substitution as class representative: first, that Moore is not a member of the
class; second, that she does not bring claims that are typical of the class; and third, that she is not
an adequate representative. The Court briefly reviews Defendants’ first argument and concludes
that Moore is a member of the class. Next, the Court finds that while Moore brings typical
disparate impact discrimination claims, she does not bring typical discriminatory statements
claims. Third, the Court finds that Moore is an adequate representative for the class on the
disparate impact discrimination claims. And finally, the Court evaluates whether Moore’s
atypicality on the discriminatory statements claims warrants the decertification of the class on all
claims. The Court concludes that it does not, and it accordingly grants both motions in part,
decertifying the class as to the discriminatory statements claims but granting the motion for
Moore’s substitution as class representative on the disparate impact discrimination claims.
A. Moore Is a Member of the Class
First, the Court briefly addresses, and rejects, Defendants’ argument that Moore is not a
member of the class. Defendants contend that Moore is not a member of the class because she is
not at risk of displacement from Brookland Manor as a result of the redevelopment. See Defs.’
Mem. Supp. Second Mot. Decertify (“Defs.’ Mem. Supp.”) 19–21, ECF No. 123-1. The Court
finds that argument meritless.
It is axiomatic that the class representative in a class action must be a member of the
class. Here, the Court certified a class of residents who are “at risk of being displaced . . . as a
direct result of the proposed redevelopment.” Borum II, 324 F.R.D. at 20. Defendants contend
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that Moore is not a member of the class because she admitted in her deposition that she was not
worried about being displaced from, or did not think she was at risk of being displaced from,
Brookland Manor as a result of the redevelopment. Defs.’ Mem. Supp. at 19–20 (quoting Moore
Dep. at 81:6–82:13). They further assert that because Moore knows Defendants have committed
to “accommodate all current families in good standing” in appropriately sized housing, and she
has no reason to doubt that commitment, any decision to leave Brookland Manor will be of
Moore’s own making rather than a direct result of the redevelopment. Id. at 19–21.
This type of “gotcha” argument based on selected excerpts from Moore’s deposition—
which Defendants make repeatedly throughout their motion—is not very persuasive when the
Court has access to the full transcript of the deposition. As Plaintiffs point out, Moore later
indicated in the deposition that she said she was not worried because “[i]f I sit up and worry
about not having a place to go . . . I will be in worse condition than I am now.” Pls.’ Mem.
Opp’n Second Mot. Decertify 10, ECF No. 127 (quoting Moore Dep. at 140:21–23). And she
also explained in the deposition that she understood the “appropriately sized housing” promised
by Defendants to mean four- or five-bedroom apartments when applied to her particular living
situation. Moore Dep. at 141:24–142:8. She re-iterated at her deposition that she would not be
able to stay at Brookland Manor if the redeveloped property does not have four- or five-bedroom
apartments. Id. at 142:16–19. Defendants dispute the reasonableness of her asserted need for a
five-bedroom apartment, see, e.g., Defs.’ Reply 10–11, ECF No. 130, and they may well be
right, but this does not change the fact that Moore is “at risk of being displaced from a three-,
four-, or five-bedroom unit at Brookland Manor,” Borum II, 324 F.R.D. at 20, if the
redevelopment does not include four- or five- bedroom apartments. The Court therefore finds
that Moore is a member of the class.
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B. Only Moore’s Disparate Impact Discrimination Claims Are Typical of the Class
Next, Defendants argue that Moore does not bring claims that are typical of the class
either on her disparate impact discrimination claims or on her discriminatory statements claims.
See Defs.’ Mem. Supp. 21–30. Under Rule 23(a)(3), Plaintiffs must show that “the claims or
defenses of the representative parties are typical of the claims or defenses of the class.” Borum
II, 324 F.R.D. at 16 (quoting Fed. R. Civ. P. 23(a)(3)). The typicality requirement allows courts
to “screen out class actions in which the legal or factual position of the representatives is
markedly different from that of other members of the class even though common issues of law or
fact are present.” Id. (quoting 7A Charles Wright & Arthur Miller, Federal Practice and
Procedure § 1764 (3d ed. 2017)). Here, Defendants contend that Moore does not bring typical
disparate impact discrimination claims because she does not have protected familial status under
the FHA and has a unique living situation triggering unique defenses. See Defs.’ Mem. Supp.
21–28. And Defendants argue that Moore does not bring typical discriminatory statements
claims because she lacks standing, and again because she lacks protected familial status under
the FHA. See id. at 28–30. The Court addresses each argument in turn, and concludes that only
Moore’s disparate impact discrimination claims are typical of the class.
1. Moore Brings Typical Disparate Impact Discrimination Claims
The Court first reviews Defendants’ typicality arguments with respect to Moore’s
disparate impact discrimination claims. Defendants argue that Moore does not bring typical
claims because she “lacks the ‘familial status’ that is protected against discrimination by the
[FHA] and [DCHRA],” and will accordingly need to make an additional, “special showing” that
she was aggrieved by Defendants’ actions, a showing that protected individuals would not have
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to make in order to bring the claims. Id. at 22–23. Defendants also posit that Moore is subject to
unique defenses because “[t]here are [a] number of features of Ms. Moore’s particular living
circumstances that place her at the very edge of persons potentially affected even by Plaintiffs’
theory of the redevelopment.” Id. at 25. Both arguments essentially repeat points Defendants
have already made earlier in this litigation. See Borum II, 324 F.R.D. at 12–13 (discussing
“aggrieved person” requirement); id. at 15–16 (discussing purported unique defenses applicable
to Borum). Neither is any more persuasive now.
First, Moore’s lack of protected familial status under the FHA and DCHRA does not
affect the typicality of her disparate impact discrimination claims. Under both the FHA and
DCHRA, any aggrieved person may bring a suit challenging perceived discrimination covered
by the respective acts. See 42 U.S.C. § 3613; D.C. Code § 2–1403.16. Defendants recognize
that, in certifying the class, the Court thus found that non-parental adults living in the same
apartment as minor children had standing to bring the same claims as other members of the class.
See Defs.’ Mem. Supp. 22 (citing Borum II, 324 F.R.D. at 12–13). But they argue that the Court
only addressed such plaintiffs’ standing to sue, which “is entirely different than appointing such
persons as a class representative to prosecute the claims of persons the statute directly protects
from discrimination.” Id. at 22–23. “After all,” Defendants contend, “asserting the rights of third
parties against discrimination requires a special showing,” id. at 23, and the need for Moore to
make that showing renders her claims atypical of the class.
Defendants are incorrect. The “aggrieved person” requirement of 42 U.S.C. § 3613merely “extend[s] broad standing principles to those seeking redress under the FHA.” Borum II,
324 F.R.D. at 12 (quoting Gorski v. Troy, 929 F.2d 1183, 1188 (7th Cir. 1991)); see also
Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91 (1979); Havens Realty Corp. v. Coleman,
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455 U.S. 363 (1982). 1 And the Court already found in its decision certifying the class that non-
parent adult members of the class “stand to suffer the same injury-in-fact as the parents and
minors contained within the class—displacement due to the Defendants’ redevelopment plan—
and seek the same relief.” Borum II, 324 F.R.D. at 13 (noting that “courts in other circuits have
recognized the broad meaning of ‘aggrieved person’ in the familial status context, and have
allowed other co-residents to challenge policies that discriminate against families”). 2 Nothing
more is required for Moore to be an “aggrieved person,” and her claims are therefore not atypical
simply because of that requirement.
Defendants also argue more generally that Moore’s lack of protected status renders her
claims atypical because a class of members of a protected group is typically represented by
members of the protected group. See Defs.’ Mem. Supp. 24–25. But the class the Court certified
is not solely composed of individuals who have protected familial status. “Defendants’
disagreement with the Court’s definition of who is included in the certified class does not render
Ms. Moore’s claims atypical.” Pls.’ Mem. Opp’n 13.
Second, Moore’s unique living circumstances also do not affect the typicality of her
disparate impact discrimination claims. Echoing the arguments they made against Borum in
their opposition to the class certification, Defendants argue here that Moore does not stand to
1
As does the DCHRA’s “claiming to be aggrieved” component. See, e.g., Molovinsky v.
Fair Emp’t Council of Greater Wash., Inc., 683 A.2d 142, 146 (D.C. 1996).
2
Defendants contend that Moore “seek[s] an injunction that will not redress h[er]
particular injury” because Plaintiffs only seek an injunction that would end the alleged
discrimination against individuals with protected familial status. Defs.’ Mem. Supp. 24. But, as
Defendants acknowledge in their briefs, Plaintiffs’ requested relief is an injunction to block the
current redevelopment. See id. at 1 (“This lawsuit is seeking to stop the redevelopment of
Brookland Manor’s 80-year-old, crime-ridden apartment complex.”). Such relief would remedy
Moore’s claimed injury.
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suffer the same injury as the rest of the class because her “entitlement to a five-bedroom
apartment is very attenuated.” Defs.’ Mem. Supp. 26. Defendants represent that “Moore’s
living situation is at the fringe of the debate over the appropriate occupancy standard” because
she is only one of five individuals living in a five-bedroom apartment, and because there are
disputes over how many people will stay in the apartment in the longer term and what are the
motivations of individuals in Moore’s household for not wanting to share a room. Id. at 26–27.
Defendants “fail to focus on the claims of the class actually certified in this case.” Pls.’
Mem. Opp’n 13. Moore is not bringing claims relating to her own individual situation; she is
bringing claims of class-wide disparate impact. As the Court explained in its certification
opinion, “[c]lass members need not be identically situated” for such a claim, Borum II, 324
F.R.D. at 16, because the claim relates to the impact of the redevelopment on the class as a
whole, “the resolution of which will be subject to common proof (i.e. the policy will either have
a disparate impact on residents based on their familial status, or it will not), id. at 17. It may well
be that, on an individual basis, some members of the class will be less impacted by the
redevelopment than others, while the class as a whole suffers a disparate impact. 3
Moreover, Defendants’ argument that Moore is not entitled to a five-bedroom apartment
given the low number of individuals in her household is the same argument they made against
Borum at the certification stage, and likely the same argument they will raise against all class
3
The Court notes that under the occupancy standards advanced by Plaintiffs at the
certification stage, and assuming that non-protected individuals are not excluded from occupancy
calculations (a merits issue the Court does not address at the certification stage), Moore’s
household would require at a minimum a three-bedroom apartment, and possibly a four-bedroom
apartment should Chyler continue to live in the apartment. See Decl. of Andrew A. Beveridge,
Ph.D. ¶ 6, Pls.’ Mot. Class Cert. Ex. 1, ECF No. 43-6. Given that Plaintiffs challenge the
planned elimination of all four-bedroom and five-bedroom apartments, and reduction in the
number of three-bedrooms, the Court therefore disagrees that Moore is “at the fringe of the
debate over the appropriate occupancy standard.” Defs.’ Mem. Supp. 26–27.
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members at the summary judgment stage. That argument reaches the merits of the case: “[t]he
question of what size apartment class members require based on their family size will be crucial
in determining whether Defendants’ redevelopment plan has a disparate impact.” Id. at 11. And
while Defendants may ultimately be correct about which occupancy standard applies—as they
may also be correct that separating individuals not protected by the FHA or DCHRA from
protected individuals does not create a disparate impact on families, see Borum I, 218 F. Supp.
3d at 26 n.13—the issue is not one for the Court to decide at the certification stage. As the Court
noted in Borum II, Defendants’ invocation of this occupancy argument against Moore makes
“clear that [Moore’s] claims, and the defenses she will need to address when this case is decided
on the merits, will be typical of the class as a whole.” 324 F.R.D. at 17.
2. Moore Does Not Bring Typical Discriminatory Statements Claims
Next, the Court evaluates whether Moore brings discriminatory statements claims that are
typical of the class. Defendants argue, inter alia, that Moore lacks standing to bring her claims
because she has not suffered a cognizable injury. Defs.’ Mem. Supp. 28–29. The Court agrees.
Under the familiar framework for establishing constitutional standing, a plaintiff “must
show (1) [she] has suffered a ‘concrete and particularized’ injury (2) that is ‘fairly traceable to
the challenged action of the defendant’ and (3) that is ‘likely’ to be ‘redressed by a favorable
decision,’ i.e., a decision granting the plaintiff the relief [she] seeks.” Elec. Privacy Info. Ctr. v.
Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 376–77 (D.C. Cir. 2017)
(quoting West v. Lynch, 845 F.3d 1228, 1230 (D.C. Cir. 2017)). And to meet the “injury in fact”
requirement, a plaintiff must establish that “she suffered ‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual or imminent.’” Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1548 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
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Although “intangible injuries can . . . be concrete[,]” this “does not mean that a plaintiff
automatically satisfies the injury-in-fact requirement whenever a statute grants a person a
statutory right and purports to authorize that person to sue to vindicate that right.” Id. at 1549.
In evaluating discriminatory advertisement under § 3604(c) of the FHA, multiple courts
have expressed doubt that the injury component of standing could be established simply by
virtue of the plaintiff reading the advertisement, without at least the allegation of some more
discrete injury. See McDermott v. N.Y. Metro LLC, 664 F. Supp. 2d 294, 305 (S.D.N.Y. 2009)
(listing cases; noting that “a person who reads a discriminatory advertisement has standing to sue
only if they allege some form of personal injury, including psychic injury or substantial insult or
distress”); ; Wilson v. Glenwood Intermountain Props., Inc., 98 F.3d 590, 596 (10th Cir.
1996) (“[W]e conclude that mere receipt by plaintiffs of the discriminatory advertisements in this
case could cause only the kind of ‘abstract stigmatic injury’ . . . insufficient to establish
standing” (quoting Allen v. Wright, 468 U.S. 737, 755 (1984)). Contra Saunders v. General
Servs. Corp., 659 F. Supp. 1042, 1053 (E.D. Va. 1987) (noting that standing could be established
merely by plaintiff reading discriminatory advertisement). The D.C. Circuit, in the context of a
discriminatory advertising claim, noted more generally that it “question[ed] whether Congress
intended [3604(c)] to confer a legal right on all individuals to be free from indignation and
distress.” Spann v. Colonial Vill., Inc., 899 F.2d 24, 29 n.2 (D.C. Cir. 1990).
Here, the proposed amended complaint contains extremely sparse allegations as to what
injury Moore suffered as a result of Defendants’ alleged discriminatory statements. It indicates
that “Defendants injured . . . Moore” by making statements violating § 3604(c), Proposed Am.
Compl. ¶¶ 168, 176, Pls.’ Mot. Substitute Ex. C, ECF No. 117-5, and that as a result Moore
“suffered violations of [her] civil rights,” id. ¶¶ 169, 177. The first allegation is simply a
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conclusory legal statement that does not indicate what injury Moore suffered. And as to the
second, because Moore does not have protected status under the FHA (or DCHRA), the Court
cannot see how her civil rights were violated, as opposed to the rights of protected individuals.
To the extent Plaintiffs would argue that Moore’s awareness of the alleged discriminatory
statements was in itself sufficient to create the required injury to establish standing, the Court
disagrees. As discussed by courts in multiple circuits in the context of discriminatory
advertisement, recognizing such an abstract injury, particularly when the plaintiff is not a
member of the protected class, would impermissibly expand the scope of standing.
While litigating the motion to substitute, Plaintiffs have not offered any other evidence to
show that Moore was injured by Defendants’ alleged discriminatory statements. Plaintiffs’
motion focuses entirely on Moore’s suitability to represent the class on their first claim. See
generally Pls.’ Mem. Supp. Mot. Substitute, ECF No. 117-1. Moore does not mention the
Defendants’ alleged discriminatory statements anywhere in her declaration. See generally
Moore Decl. And while the Court agrees with Plaintiffs that the statements Moore made on the
issue at her deposition do not amount to much, see Pls.’ Opp’n 15 n.5, 4 the opposition does not
otherwise respond to Defendants’ argument that Moore has not suffered an injury in fact—or
provide a supplemental declaration by Moore discussing the statements. See generally id. The
Court is therefore left with no indication that Moore has actually suffered an injury stemming
from Defendants’ alleged discriminatory statements. It finds that Moore lacks standing to bring
4
Defendants make much of the fact that Moore admitted she did not remember any
defendant “saying that families would not be welcomed at the redeveloped [property],” or “ever
sa[ying] anything to [her] that ha[d] caused [her] harm.” Moore Dep. 89:23 – 90:10. But
Defendants are not alleged to have specifically stated that “families would not be welcomed” at
the redeveloped Brookland Manor. See Proposed Am. Compl. ¶¶ 59–62. Nor are any of the
defendants alleged to have orally made discriminatory statements directed at Moore. See id.
Moore’s failure to recall such statements is therefore not, in itself, dispositive.
16
her discriminatory statements claims, and that she fails the typicality (and adequacy) requirement
to represent the class on those claims.
C. Moore is an Adequate Representative for the Class’s Disparate Impact Claims
Having determined that Moore brings typical disparate impact discrimination claims, the
Court reviews whether she is an adequate representative of the class on those claims. Defendants
make a multitude of arguments for why Moore is inadequate: they repeat their argument that
Moore does not bring typical claims, contend that she does not have sufficient knowledge of and
control over the litigation, that she lacks the credibility necessary to represent the class, and
finally argue that proposed class counsel—plaintiffs’ counsel throughout this litigation—has a
conflict that would impact its representation of the class. See Defs.’ Mem. Supp. 30–37. At the
onset, typicality is not an obstacle to Moore’s representation of the class because the Court has
found that she brings typical claims. The Court addresses Defendants’ other arguments in turn.
While Moore’s apparently limited knowledge of the litigation and the inconsistencies in her
statements give the Court some pause, the Court ultimately finds that she meets the low standard
for adequacy there. Finding Defendants’ other arguments meritless, the Court concludes that
Moore is an adequate representative for the class as to the disparate impact discrimination
claims.
1. Moore Has Sufficient Familiarity With the Litigation to Act as Class Representative
The Court first addresses whether Moore has shown the requisite knowledge and control
over the litigation to be an adequate representative of the class. “[T]he adequacy of
representation prong requires that the class representative[] have a commitment to, knowledge
of, and interest in the litigation, although they need not have expert knowledge of all aspects of
the case.” Harris v. Koenig, 271 F.R.D. 383, 391 (D.D.C. 2010). This requirement creates a low
17
bar: “[o]nly a ‘total lack of interest and unfamiliarity with [the] suit would be sufficient grounds
to deny plaintiffs’ motion [to certify the class].’” Id. (alteration in original) (quoting In re
Newbridge Networks Sec. Litig., 926 F. Supp. 1163, 1177 (D.D.C. 1996)); see also Newberg on
Class Actions § 3:67 (“While a lack of knowledge about the facts or legal theories of a particular
case will usually not bar a finding that the proposed representative can adequately represent the
class, courts are more troubled if the proposed representative lacks any understanding of [her]
role in class litigation.”). 5 And “[p]articularly in complex cases, ‘the qualifications of class
counsel are generally more important in determining adequacy than those of the class
representatives.’” Howard v. Liquidity Servs. Inc., 322 F.R.D. 103, 135 (D.D.C. 2017) (quoting
Harris, 271 F.R.D. at 392); see also Thorpe v. District of Columbia, 303 F.R.D. 120, 151
(D.D.C. 2014) (“[G]iven the circumstances of the named plaintiffs, it is unrealistic to expect that
they understand the legal intricacies of class actions, which remain a mystery to many in the
legal profession.”).
Here, Defendants argue that Moore has not shown the requisite knowledge of and control
over the litigation because “she does not know what the claims are . . . and . . . . how the class
she seeks to represent is defined,” Defs.’ Mem. Supp. 32, she “has no idea what the next steps
are . . . or what types of experts have been retained,” id., and she “has not even assisted in key
filings that require her participation as a party,” id. at 33. The Court disagrees. While Moore’s
deposition does highlight her relative lack of knowledge about the case, and her statements there
5
Defendants take issue with Plaintiffs’ invocation of this standard in their reply. See
Defs.’ Reply 14. They argue that “[c]lass counsel’s argument is an existential threat to the
integrity of the class action device,” and designed to further a “runaway class action, driven by a
downtown law firm and an anti-development activist organization.” Id. Setting aside the fact
that Defendants’ counsel is itself a “downtown law firm,” Plaintiffs’ argument relies on a legal
standard generally accepted in the class action context, that Defendants do not otherwise
meaningfully challenge with contrary case law.
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at times conflicted with the declaration filed in support of the motion to substitute, the Court
does not find these issues sufficient to render her inadequate.
With respect to Moore’s knowledge of the case, she indicated in her declaration that she
“ha[d] become familiar with this case, including the facts that relate to the impact the
redevelopment will have on families,” Moore Decl. ¶ 15, and stated at the deposition that she
understood her responsibilities as class plaintiff to be “help[ing] those out that need[] four and
five bedroom just like [her]self,” Moore Dep. 114:20–21. She also stated at the deposition that
she understood the class to be “people . . . fighting to keep their families together, so they wanted
[sic] to split them apart.” Id. at 115:6–7. However, Moore did not know how the class was
defined, what the next steps in the litigation were, how many people were in the class, or what
experts Plaintiffs may have retained to speak on the class’s behalf. See id. at 116:9–117:15.
Defendants argue that this shows Moore “does . . . [not] have any knowledge of the objectives of
this litigation.” Defs.’ Reply 15. 6 The Court disagrees. While it is true that Moore appears to
have limited knowledge about the legal claims at issue and the litigation process, the deposition
indicates that she knows about the core issue central to the claims: displacement of families
currently living in three-, four-, and five-bedroom apartments at Brookland Manor as a result of
the redevelopment. The Court cannot conclude that Moore has a “total lack of interest and
unfamiliarity with [the] suit.” Harris, 271 F.R.D. at 391 (alteration in original) (quoting
Newbridge, 926 F. Supp. at 1177).
6
Defendants also argue in their reply that Moore “knows nothing about the
redevelopment other than what she was told at a community meeting two to three years ago.”
Defs.’ Reply 16 (citing Moore Dep. 75:21–76:24). But Moore testified at the deposition that she
frequently attends resident association meetings where the redevelopment is discussed. See
Moore Dep. 109:13–112:8; see also Moore Decl. ¶ 15 (noting that Moore “attended numerous
community meetings related to the redevelopment” over the years).
19
Nor does Moore’s inability to recall participating in the drafting of responses to
Defendants’ interrogatories warrant finding her inadequate for lack of control over the litigation.
Defendants note that Moore “recalled signing” the answers to their interrogatories, but because
she “did not recall participating in the preparation of [the] answers,” they contend that she must
not have participated at all in the drafting of the responses. Defs.’ Mem. Supp. 33. Based on the
deposition, the Court does not agree. Moore’s admission that she could not recall preparing her
answers to Defendants’ interrogatories is troubling. But, taking into account Moore’s other
statements and her difficulties recalling other events throughout the deposition, the Court cannot
infer from it that Moore simply did not participate in the drafting of the answers, rather than
simply failed to remember her participation. As Defendants acknowledge, Moore recalled
signing the answers to the interrogatories. And she recalled being told about Defendants
“ha[ving] questions that they wanted [her] to answer.” Moore Dep. 137:3–7. Although with
some difficulty, Moore also recalled meeting and talking to her attorneys on multiple occasions
during the period following her nomination as proposed substitute class representative. See
Moore Dep. 119:25–120:3, 138:16–139:19, 156:3–20, 157:12–16. Given that Moore is legally
blind, it is plausible to infer that these conversations resulted in the preparation of the
interrogatories on her behalf even if Moore did not recognize that they were for that purpose.
Without more, the Court cannot find that her failure to recall working on the answers to
interrogatories was due to her ceding control of the litigation to her attorneys.
2. Moore Is Sufficiently Credible to Act as Class Representative
Defendants next argue that Moore lacks the requisite credibility to act as class
representative, based on inconsistencies between her declaration and the statements she made at
her deposition, and on her allegedly admitting to submitting false information on federal
20
government forms. See Defs.’ Mem. Supp. 34–36. The Court is unconvinced. Courts typically
decline certification on credibility issues “only in ‘flagrant cases, where the putative class
representatives . . . are so lacking in credibility that they are likely to harm their case.’” Garnett
v. Zeilinger, 301 F. Supp. 3d 199, 210–11 (D.D.C. 2018) (quoting Howard, 322 F.R.D. at 135).
This is not such a case.
First, several of the inconsistencies Defendants point to between Moore’s sworn
declaration and her deposition testimony are immaterial. Moore stated that she had lived at
Brookland Manor since 1972 in her declaration, see Moore Decl. ¶ 1, whereas she indicated at
the deposition that she had lived in Waldorf, Maryland at some point in the past and could not
remember if she had lived in Waldorf at any point in the past 30 years, see Moore Dep. 126:5–
128:12. Moore also stated in her declaration that Rajon Edwards was her sister Evelyn’s
grandson and that her sister had adopted him. See Moore Decl. ¶ 2. But she explained at the
deposition that Evelyn only had legal custody of Rajon. Moore Dep. 22:10–12. And Evelyn was
not related to Rajon by blood; she had raised his mother Keyana Edwards and was now raising
him. See Moore Dep. 19:25–22:12. Both inconsistencies relate to narrow details, neither of
which reaches a “core issue[] in the case,” Defs.’ Reply 17 n.1, or “casts doubt on the credibility
and integrity of Ms. Moore,” Defs.’ Mem. Supp. 35.
More troubling is the inconsistency between Moore’s statement in her declaration that her
niece Denver Moore resided in her apartment during school breaks and planned to return to live
in the apartment after graduation, see Moore Decl. ¶ 3, and her testimony at the deposition that
Denver never stayed the night in the apartment, nor did she appear to have plans to come back to
live there after graduating from college, see Moore Dep. 36:5–19. Defendants are correct that
this inconsistency comes closer to the central legal issue in this case because it impacts how
21
many people actually live in Moore’s apartment. See Defs.’ Reply 17. That being said, Denver
Moore is nineteen, see Moore Decl. ¶ 3, and does not have protected familial status under the
FHA or DCHRA. And, as discussed above, Moore still brings typical claims even with only four
other individuals living in the apartment. See supra Part IV.B.1. Unlike the cases cited by
Defendants, the inaccuracy therefore does not actually reach a “core issue[].” Defs.’ Reply 17
n.1; see CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 727–28 (7th Cir. 2011)
(finding lack of credibility sufficient to warrant inadequacy when it “raise[d] a substantial
question” regarding a consent defense); Savino v. Comput. Credit, Inc., 164 F.3d 81, 87 (2d Cir.
1998) (“The fact that Savino offered differing accounts about the letters that form the very basis
for his lawsuit surely would create serious concerns as to his credibility at . . . trial.”); cf. Shiring
v. Tier Techs., Inc., 244 F.R.D. 307, 316–17 (E.D. Va. 2007) (finding that plaintiff’s
inadvertence or indifference to certification requirements under Private Securities Litigation
Reform Act’s certification requirements, together with failure to comply with his company’s
insider trading policy, showed he lacked “the requisite standards of honesty and integrity
required of a fiduciary for the putative class”).
More generally, as with Defendants’ arguments regarding Moore’s responses to their
interrogatories, the Court finds no indication of bad faith on Plaintiffs’ or Moore’s part. The
transcript reflects that Moore appeared concerned with providing truthful answers to Defendants’
questions. While any inaccuracies in her declaration might reflect poorly on the preparation of
Plaintiffs’ motion to substitute—as does Plaintiffs’ failure to submit an amended declaration
clarifying Moore’s statements—the Court does not believe that the discrepancies between the
declaration and deposition testimony render Moore “so lacking in credibility” that she is “likely
to harm [her] case.” Garnett, 301 F. Supp. 3d at 210–11 (quoting Howard, 322 F.R.D. at 135);
22
see also CE Design, 637 F.3d at 728 (noting that “[f]or an assault on the class representative’s
credibility to succeed, the party mounting the assault must demonstrate that there exists
admissible evidence so severely undermining plaintiff’s credibility that a fact finder might
reasonably focus on plaintiff’s credibility, to the detriment of the absent class members’
claims”).
Next, Defendants contend that “there is evidence that suggests that Ms. Moore and her
sisters provided false information on Tenant Income Certifications required under the HUD
Section 8.” Defs.’ Mem. Supp. 35. They go further in their reply, arguing that Moore
“conceded” that she was not listed on the rental application for the apartment she lives in at
Brookland Manor until 2012 “so that [her] government benefits would not be counted as
household income, thereby increasing the rent that would need to be paid.” Defs.’ Reply 18.
But Moore’s deposition simply does not bear this out. Defendants’ counsel asked why Moore’s
name was not on the lease of her Brookland Manor apartment until 2012. See Moore Dep.
128:13–18. After Moore answered that her sister must not have put her on the lease, Defendants’
counsel asked whether this was “so [Moore’s] benefits didn’t have to be counted in the
calculation of rent.” Id. at 128:23–25. Moore stated that she did not know. See id. at 129:1–11.
After repeating that she did not know in response to counsel’s renewed questions on the issue,
Moore eventually stated: “It could have been. I don’t know.” Id. at 133:23–24. This is far from
the concession of fraudulent conduct Defendants represent was made. And it is also far from the
conduct at issue in the case Defendants cite in support of their argument, where the individual
empowered to act on the proposed representative’s behalf in the lawsuit had prior convictions for
filing false federal income tax returns. See Pope v. Harvard Banschares, Inc., 240 F.R.D. 383,
390 (D.D.C. 2006). The Court agrees with Plaintiffs that “Defendants . . . seek to impute fraud
23
to Ms. Moore and her family based on . . . speculation.” Pls.’ Mem. Supp. at 21. Because
Defendants’ arguments do not suggest that Moore is entirely lacking in credibility, the Court
declines to find her inadequate on that basis.
3. Class Counsel Does Not Have a Disqualifying Conflict
Finally, the Court briefly touches on Defendants’ last argument as to inadequacy, that
class counsel has a conflict that renders it inadequate because Borum, the prior representative,
has different incentives from the rest of the class, and Plaintiffs’ counsel continues to represent
her as a class member. See Defs.’ Mem. Supp. 36–37 (citing Borum III, 329 F.R.D. at 100).
Defendants cite no law to support that argument. Nor can they. If a single class member’s
differing incentives could create a conflict disqualifying class counsel from representing the rest
of the class, no class would ever be found to be adequate. Plaintiffs’ counsel are obligated to
“fairly and adequately represent the interests of the class,” Fed. R. Civ. P. 23(g)(4), not to ensure
that the interests of each individual class member be satisfied. The Court finds that this
“conflict” is not sufficient grounds to render class counsel inadequate.
D. The Court Decertifies the Class Only as to the Discriminatory Statements Claims
Having found that Moore is an atypical and inadequate representative on some, but not
all, of Plaintiffs’ claims, the Court must now determine what the appropriate course of action is
with regards to the continued certification of the class. Defendants appear to argue that because
Moore is atypical and inadequate on half of the class’s claims, the class must be decertified on all
claims. See Defs.’ Reply 11–12. 7 The Court disagrees. Because it retains broad discretion in
7
Defendants also repeat the argument made at the certification stage and in their first
motion to decertify that the majority of the class does not support this litigation. See Defs.’
Mem. Supp. 38–39. But beyond unsupported assertions regarding Plaintiffs’ counsel’s efforts to
find a substitute representative, e.g. id. at 38 (“Lawyers went door-to-door on the hunt for
24
shaping the class, the Court instead will decertify the class as to the discriminatory statements
claims and grant the motion to substitute Moore as class representative on the disparate impact
claims.
As discussed above, “a district court’s order . . . granting class status is inherently
tentative.” Reynolds, 702 F.2d at 226 (quoting Coopers & Lybrand, 437 U.S. at 469 n.11).
Because “class certification problems are constantly subject to reconsideration as the facts
develop,” id., “Rule 23 expressly grants courts the discretion to revisit the propriety of continued
class certification in later stages of litigation,” DL, 312 F.R.D. at 6 (citing Fed. R. Civ. P.
23(c)(1)(C)). In parallel, Rule 23 also affords courts broad discretion in structuring the class,
including the discretion to certify a class only on some of a plaintiff’s claims. See Borum II, 324
F.R.D. at 7–8; Fox v. Prudent Res. Trust, 69 F.R.D. 74, 77 (E.D. Pa. 1975) (“The court has
power to dismiss the suit as a class action, maintain it as to only some of the counts of the
complaint, or create subclasses as to one or more counts of the complaint.”) (citing Fed. R. Civ.
P. 23(c)(4)); see also, e.g., Kaplan v. Pomerantz, 131 F.R.D. 118, 127 (N.D. Ill. 1990) (certifying
class on two out of three counts because proposed class representative was atypical as to third
count).
Here, the Court agrees with Defendants that, in light of Plaintiffs’ failure to propose a
suitable substitute class representative within a reasonable time, decertification is an appropriate
remedy. See Defs.’ Mem. Supp. 37; Borum III, 329 F.R.D. at 100–01 (discussing cases and
noting that the Court would give Plaintiffs a reasonable time to put forward a substitute
representative before considering decertification). But the Court does not believe that
someone, anyone, who could step in and continue to carry Class Counsel’s torch.”), Defendants
do not substantiate those allegations.
25
decertification of the class on all claims is warranted, because Moore remains a typical and
adequate representative with respect to disparate impact discrimination claims. The Court
accordingly decertifies the class on Plaintiffs’ two discriminatory statements claims, but grants
Plaintiffs’ motion to substitute Moore as class representative on the two disparate impact
discrimination claims.
V. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion to substitute class representative (ECF No.
117) is GRANTED IN PART AND DENIED IN PART. Defendants’ cross-motion to
decertify the class (ECF No. 123) is GRANTED IN PART AND DENIED IN PART.
Plaintiffs’ motion for leave to file documents under seal (ECF No. 128) is GRANTED. An
order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: June 11, 2019 RUDOLPH CONTRERAS
United States District Judge
26