DocketNumber： No. C00-1672MJP
Citation Numbers： 236 F.R.D. 659
Judges： Pechman
Filed Date： 6/5/2006
Status： Precedential
Modified Date： 11/26/2022
ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION
This case comes before the Court on Plaintiffs’ Third Motion for Class Certification. (Dkt. No. 261). The Court has reviewed Defendant’s opposition to this motion, Plaintiffs’ Reply and both parties’ Surreplies to this Motion (Dkt. Nos. 271, 282, 300 & 302), as well as all exhibits and papers submitted in support of the parties’ positions. Having also heard oral argument from Plaintiffs and Defendant (“the City”), the Court hereby CERTIFIES a third class in this matter and STRIKES Defendant’s late-filed surreply. The City’s surreply is struck because it was submitted at approximately 3:35 p.m. on the last business day before oral argument was held in this matter. Regardless of the Defendant’s actual intentions in making such a late filing, the Court will not condone such practices because they do not comply with court rules and are disrespectful of both opposing counsel and the Court.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
On November 30,1999, the ministerial conference of the World Trade Organization (“WTO”) convened in Seattle, WA. Dignitaries from 134 member nations, including U.S. President Clinton, came to Seattle to attend the conference. Tens of thousands of protesters also convened in the city to protest the policies and agenda of the WTO. While many of the protesters who gathered engaged in peaceful demonstrations, a noticeable portion of the protesters engaged in civil disobedience tactics, such as sit-ins at major intersections, designed to disrupt the conference. Still others employed violent protest strategies such as vandalism, setting fires, and looting businesses near the Convention Center, which housed most of the WTO meetings.
The size and intensity of the protest activities surpassed the ability of the Seattle police force to maintain order. At 3:30 on Tuesday, November 30, 1999, then-Mayor Schell de-
On the morning of December 1, 1999, Plaintiffs allege that the Seattle police trapped and arrested a group of approximately 200 people in or near Westlake Park, which was inside the No Protest Zone described by Emergency Order No. 3. Plaintiffs acknowledge that many of the Plaintiffs reached the park through different routes. Some marched in protest all the way from Denny Park as a group. Others joined the group once it was in downtown Seattle. Still others were members of the media, or people who were just at the park. Plaintiffs state that none of these individuals were engaged in violent protest and that the entire course of events at Westlake Park, including the arrests, took place peacefully. (Pi’s Mot. at 2-3). Plaintiffs allege that all of these individuals were arrested without being given a chance to disperse and that the police arrested them without findings of individualized probable cause. As they were arrested, Plaintiffs were allegedly loaded onto buses and transported to the Sandpoint Naval Station, where many “were forced to sit on buses for hours without food, water, or sanitation.” (Id. at 4). Plaintiffs claim that many of the individuals arrested at Westlake Park were detained for several days. (Id.)
Plaintiffs allege that the Seattle police used generalized, photocopied arrest records that only give a partial and inaccurate account of the event. In support of this allegation, Plaintiffs have submitted arrest records for the named Plaintiffs Kenneth Hankin, Stephanie Lane, and Jennifer Hudziec in this matter. Each Plaintiffs “Prisoner Identification Form” reads:
LT WHELAN GAVE ORDERS TO DISBURSE [sic] FROM WESTLAKE PARK ALL REFUSED TO LEAVE AND WERE BLOCKING THE SIDEWALKS. NO PHOTO TAKEN IN FIELD DUE TO NUMBER OF ARRESSTEES [sic] REFUSED TO GET OFF TRANSPORT BUS AT SANDPOINT PRISONER PROCESSING STATION
(Pi’s Exs. I-K at 88,104, and 126).
II. Procedural History
This case was originally filed before Judge Rothstein in this Court on October 2, 2000. This action was filed on behalf of a broad class of people arrested during the enforcement of Emergency Order No. 3 and the No-Protest Zone on December 1,1999. Early in the case, Plaintiffs filed a first motion for class certification for a comprehensive class involving all people arrested in the downtown area on that day. This motion for class certification became moot and was denied after a series of summary judgment rulings by Judge Rothstein. Plaintiffs sought and obtained a certificate of appealability of some of these issues to the Ninth Circuit, which originally denied an interlocutory appeal in this case.
In the meantime, the Plaintiffs sought to certify a second class before Judge Roth-stein. This second class included people allegedly “herded” by police into an area around First Avenue and Broad Street, which was outside of the No Protest Zone, and arrested. Plaintiffs Hickey and Jackson were the named Plaintiffs for this second class. The Order certifying the second class also entered final judgment in the cases of five of the original named Plaintiffs (Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper, and Nicole Pearson), whose entire claims became moot in light of Judge Rothstein’s summary judgment rulings. These five Plaintiffs joined the appeal in the related Menotti v. City of Seattle case (C00
On August 19, 2003, the Hickey case was transferred to Judge Pechman. (Dkt. No. 135). On December 29, 2003, the Court issued an Order regarding the parties’ cross motions for summary judgment as to the second class. (Dkt. No. 184). In this Order Judge Pechman granted in part and denied in part the parties’ motions, finding issues of fact for trial regarding ratification of the police officer’s actions by people with final policymaking authority and liability. On July 15, 2004, Judge Pechman approved a final class settlement as to the second class and dismissed the claims of Hickey and Jackson and the class represented by them. (Dkt. No. 248).
On June 2, 2005, the Ninth Circuit issued its opinion in the Menotti case, which affirmed Judge Rothstein’s decision regarding the facial constitutionality of Emergency Order No. 3, but remanded the case for further proceedings as to the constitutionality of the order as applied to Plaintiffs. Menotti v. City of Seattle, 409 F.3d 1113, 1148 (9th Cir.2005). While the Ninth Circuit’s opinion in Menotti found that Emergency Order No. 3 was a lawful “time, place, and manner” restriction on its face and did not run afoul of the First Amendment, the Ninth Circuit also observed that statements of several individuals, including that of Kenneth Hankin, detained in or near to the No Protest Zone created issues of fact regarding “whether it was the policy of the City to apply Order No. 3 in a manner that excluded only anti-WTO protestors.” 409 F.3d at 1142, 1146-48.
The five Plaintiffs from this action requested to have the remainder of their case proceed separately from the remand in the Menotti case, because they claimed that Menotti is much closer to trial than this case. (See Joint Status Report, Dkt. No. 259). On remand, the Plaintiffs ask this Court to certify a class of:
[a]ll individuals arrested on the morning of December 1, 1999, in Seattle, Washington, in Westlake Park or the streets or sidewalks immediately adjacent to the park.
(Pi’s Mot. at 8). Plaintiffs propose that Kenneth Hankin, Denise Cooper, Jennifer Hud-ziec, and Stephanie Lane serve as class representatives, should the Court certify this class action. Defendant opposes certification of the class and challenges the proposed class on every prong of the criteria for class certification set forth in Fed.R.Civ.P. 23. Defendant also challenges the proposed class alleging that there has been insufficient time for discovery, that the class members do not have standing to proceed as a class, and that the proposed class is ill-defined.
ANALYSIS
I. Discovery Issues & Standing
A. Discovery
When this case was remanded, the parties filed a joint status report indicating that they agreed that a seven-month period of discovery would be appropriate in this matter. (Dkt. No. 259 at 2). However, the Court never entered a scheduling order in this matter after the joint status report was filed. On January 19, 2006, Plaintiffs filed this motion for class certification. The City maintains that it needs more discovery in this matter and contends that the class certification motion is premature. Fed.R.Civ.P. 23(e)(1) requires the Court to determine, “at an early practicable time” whether to certify an action as a class action. Nonetheless, pre-certification discovery and rulings on dis-positive motions may be appropriate to help focus the case. Federal Judicial Ctr., Manual for Complex Litigation 253 (4th ed.2004). Although the Court is deciding to certify the class in this order, the Court will also grant Defendant’s request for more time for discovery in this matter. The Court grants the parties an additional ninety days of discovery in this matter. This discovery period will be reflected in the scheduling order that will soon issue in this ease. Any extensions of this deadline, whether stipulated or not, must be approved by this Court to be valid.
B. Standing
Defendant argues that Plaintiffs have no standing to pursue certification of the
The court did not rule on the lawfulness of police behavior when arresting individuals. In fact, the court denied defendants’ motion for summary judgment on the issue of probable cause to arrest, because plaintiffs raised issues of fact that precluded summary judgment regardless of the constitutionality of Emergency Order No. 3 facially or “as applied” through creation of the restricted zone ... Given that plaintiffs’ individual claims have not been ruled on, the plaintiffs’ request for an order under Fed. R. Civ. Proc. 54(b) is DENIED.
(Dkt. No. 77 at 2-3). At docket number 78, Plaintiffs submitted a supplemental brief on class certification, aimed primarily at clarifying the posture of the case for the Court. In this submission, Plaintiffs state, “[p]ut simply, plaintiffs’ only claims for people arrested inside the No Protest Zone were based on the unconstitutionality of Order No. 3 and the No Protest Zone. After Judge Roth-stein’s summary judgment order and clarification, plaintiffs have no claims left for these people.” (Dkt. No. 78 at 2). Following this submission, Judge Rothstein denied certification of the first class, but granted a certificate of appealability on the issue of the constitutionality of Emergency Order No. 3. The Ninth Circuit rejected the certificate of ap-pealability and almost a year later, Judge Rothstein reversed her previous position and entered 54(b) judgment as to Plaintiffs Han-kin, Hudziec, Pearson, Cooper, and Lane (hereinafter, “the Hankin Plaintiffs”) and the class they represented so that they could join the Menotti appeal. (Dkt. No. 111). Between the entry of that order and now, the Court can find no order on the docket resolving the Fourth Amendment issues of the Hankin Plaintiffs.
There appears to be confusion on the part of the parties. The Hankin Plaintiffs seem to view their Fourth Amendment claims as part and parcel of how Order No. 3 was applied to them. However, given the Hankin Plaintiffs’ previous representations and the Court’s reversal of its position to enter judgment, the City’s view that Plaintiffs abandoned these claims is not surprising.
On May 2, 2006, the parties stipulated to the entry of Plaintiffs Second Amended Class Action Complaint (Dkt. No. 296). Paragraph 102(b) of this Complaint specifically puts at issue, “whether the arrests of plaintiffs and the Class while physically within one of the City’s declared curfew zones or ‘no protest’ zones violated the federal First and Fourth Amendment rights of plaintiffs and the Class.” (Id. at 27). Although this issue is not exactly the same as the issue remanded to this Court by the Ninth Circuit, whether or not the Seattle City police were violating the Fourth Amendment rights of people they perceived to be WTO-protesters is a pertinent inquiry for the Court because these issues were originally brought before the Court when this action commenced, but have not been resolved. Additionally, as evidenced by the Ninth Circuit’s discussion of Plaintiff Hankin’s declaration, these issues are related to the mandate given to this Court by the Ninth Circuit. Menotti, 409 F.3d at 1146-47. For these reasons, the Court will allow Plaintiffs to proceed as a class with their Fourth Amendment claims against Defendant.
II. Is the Proposed Class Well-Defined?
Before launching into its challenge to Plaintiffs’ proposed class certification under Fed.R.Civ.P. 23, the City objects to the class on the grounds that it is ill-defined. Defendant claims that Plaintiffs’ proposed class definition is too broad and ambiguous and that it will be difficult to identify who is a member of the class.
Plaintiffs’ proposed class definition reads: “[a]ll individuals arrested on the morning of December 1, 1999, in Seattle, Washington, in Westlake Park or the streets or sidewalks immediately adjacent to the park.” (Pi’s Mot. at 8).
Federal defendants in the Chang v. United States ease made a similar argument, stating that the court would have to make individualized findings regarding the circumstances of each class members’ arrest that would undermine the representative purpose of the class action. 217 F.R.D. 262, 270 (D.D.C.2003). The court in Chang dismissed that argument, observing that the arrests in question resulted from a mass arrest action on the part of the police, who were trying to quell a protest. Id. The Chang court noted the overriding factual and legal similarities of the cases of the Plaintiffs before it and analogized the case to the Dellums case, which certified a class of “all persons who were arrested while assembled on the Capitol steps on May 5, 1971” in protest of the Vietnam War. See Dellums v. Powell, 566 F.2d 167 (D.C.Cir.1977). Other courts have also followed this rationale, finding that in cases of mass arrest or detention, plaintiffs’ factual and legal claims were sufficiently similar to justify certification of a class, despite alleged individualized defenses to these claims. See e.g. Patrykus v. Gomilla, 121 F.R.D. 357 (N.D.Il.1988); Johns v. DeLeonardis, 145 F.R.D. 480 (N.D.Il.1992). Plaintiffs also observe that the fact of each individual Plaintiffs arrest can be shown via the arrest records for these people. (See Weaver Deck, Ex. D). Regarding Defendant’s objections to the use of the word “morning” and the non-specific geographic boundaries in the class definition, the Court agrees with the City that the vagueness of these terms could pose problems for this litigation as this case progresses. However, these flaws are not fatal to class certification because they are problems that are easily corrected. Almost all of the arrest records submitted in support of this motion by Plaintiffs indicate an arrest time of 9:00 a.m. (Weaver Deck, Exs. E-G, I-L, O-X). The only exceptions are the arrest records of Dana Schuerholtz and Abraham Haim, which indicate an arrest time of 7:40 a.m. (Id., Ex. C, Haim Deck). While there is evidence that the arrest records are not completely accurate (See Haim Deck, H14), a twelve hour window for arrests seems broader than necessary. Accordingly, the Court will certify a class of people arrested between 6 a.m. and 12 p.m. on December 1, 1999, in Westlake Park. Similarly, Plaintiffs indicate in their Reply that they could easily designate the streets that border Westlake Park. In the interest of making the class members as easily identifiable as possible, the Court will certify a class of
all individuals arrested between 6 a.m. and 12 p.m. on December 1, 1999, in Seattle, Washington, in Westlake Park, or on the streets or sidewalks on Fourth Avenue, between Pike Street and Pine Street, or on Pike or Pine Streets between Fourth and Fifth Avenues.
III. Fed.R.Civ.P. 23(a)
Under Fed.R.Civ.P. 23(a) Plaintiffs must show that the proposed class meets the prerequisites of (a) numerosity, (b) commonality, (c) typicality, and (d) adequacy of representation. E.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Failure to adequately fulfill any of Rule 23’s requirements will preclude certification of a proposed class action. Rutledge v. Electric Hose & Rubber Co., 511 F.2d 668, 673 (9th Cir.1975). The parties seeking certification bear the burden of demonstrating that all of the requisites set forth in Fed.R.Civ.P. 23 have been met. Chang, 217 F.R.D. at 268.
A. Numerosity
A proposed class meets the numerosity requirement if “the class is so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). Here, Plaintiffs argue that with a proposed class of between 128-200 individuals, numerosity is not an issue in this case. Defendants, however, argue that the issue of numerosity is not necessarily an easy issue for Plaintiffs because they have
While there are cases where a court has declined to certify a large class because Plaintiffs have not demonstrated impracticability of joinder, there is much more precedent supporting the notion that actions involving of hundreds of plaintiffs are sufficiently numerous to be certified as a class. See e.g. Chang, 217 F.R.D. at 269 (citing Franklin v. Barry, 909 F.Supp. 21, 30 (D.D.C.1995), which held that a class of 200 satisfied the numerosity requirement). Additionally, Plaintiffs have asserted that some of the individuals involved in the arrest at Westlake Park have moved out of state, or even out of the country, since this litigation was originally filed. (Am. Compl. at 4-5). Given the strong precedent in this area and Plaintiffs’ claim that some members of the class have relocated, the Court finds that the proposed class is sufficiently numerous for certification and that joinder of all of the Plaintiffs in this action would be impracticable.
B. Commonality
The commonality requirement is satisfied “if there are questions of fact and law which are common to the class.” Fed.R.Civ.P. 23(a)(2). Defendants claim that Plaintiffs do not fulfill the commonality requirement because “each class member’s claims necessitate individual determinations of liability.” (Defs Resp. At 19). However, “ ‘[t]he commonality test is met where there is at least one issue, the resolution of which will affect all or a significant number of the putative class members.’ ” Chang, 217 F.R.D. at 269. Here, all of the Plaintiffs were allegedly scooped up by the police in a mass arrest, without an individualized probable cause determination as to each Plaintiff. Although Defendants are correct that probable cause determinations are normally individualized processes that are inappropriate for representative adjudication, other courts have certified classes of protesters swept up in mass arrests. Id. at 274; Dellums v. Powell, 566 F.2d 167 (1977). Additionally, the Southern District of New York certified a class of people who had been allegedly strip searched pursuant to an indiscriminate strip search policy of all potential inmates. Maneely v. City of Newburgh, 208 F.R.D. 69 (2002). Although the Maneely court acknowledged that there would be some individual issues regarding reasonable suspicion under the Fourth Amendment, the court found that these issues could be dealt with individually at the damages stage of that litigation. Id. at 78-79. The Maneely court found it efficient to certify a class to resolve the issue of whether or not a policy existed that mandated indiscriminate strip searches and that the efficacy of resolving this issue en masse trumped any difficulties that might arise because of individual reasonable suspicion determination.
This case is analogous because Plaintiffs will have to show that the Seattle police acted pursuant to a policy or that a decision maker ratified the actions of the arresting police officers in order to demonstrate the liability of the municipal government of Seattle. See Christie v. Iopa, 176 F.3d 1231, 1235-41 (9th Cir.1999). The common factual allegations surrounding each Plaintiffs arrest, as well as these common legal issues justify a finding on the part of this Court that Plaintiffs have satisfied the commonality inquiry.
C. Typicality
The Court may find typicality if “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). The Ninth Circuit has held that Rule 23(a)(3) should be interpreted somewhat permissively and that “representative claims are ‘typical’ if the are reasonably co-extensive with those of the absent class members; they need not be substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.1997).
Given this permissive standard, and the affidavits submitted by the named and unnamed Plaintiffs in this action, typicality is met. Plaintiffs Hudziec, Cooper and Hankin arrived at Westlake Park from Denny Park, while Plaintiff Lane states that she joined the protest downtown. Plaintiffs Haim’s and Worden’s affidavits seem to support the fact that the named Plaintiffs experiences were
D. Adequacy of Representation
The fourth and final prong of Rule 23(a) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). In order to satisfy this prong, the Plaintiffs must show that the named Plaintiffs do not have any conflicts of interest with other class members. Additionally, the Court must examine whether the named Plaintiffs and counsel will vigorously prosecute the case. Hanlon, 150 F.3d at 1020. Here, Defendants make a flat statement that Plaintiffs have not demonstrated this prong of the class certification analysis, but provide no support for this statement. (Defs Resp. at 21). Plaintiffs claim that the class representatives’ interests are entirely coincident with that of other class members. (Pi’s Mot. at 14). Additionally, they note that Judge Rothstein already found counsel in this matter to be adequate professional representatives. (See Dkt. No. 111). The Hagens Berman law firm representing Plaintiffs in this matter has experience representing complex class actions. Additionally, Defendants have raised no serious challenges regarding any conflicts of interest that named Plaintiffs may have. The Court finds that the adequacy of representation prong is satisfied.
IV. Fed.R.Civ.P. 23(b)
In addition to meeting the requirements set forth in Fed.R.Civ.P. 23(a), Plaintiffs must also demonstrate that the class can be maintained under the requirements of either Fed.R.Civ.P. 23(b)(1), (2), or (3). Hanlon, 150 F.3d. at 1022. The Plaintiffs in this case claim that this action satisfies the requisites of Rule 23(b)(3).
A. Predominance and Superiority
Under Fed.R.Civ.P. 23(b)(3), the Court must determine “whether the proposed class[...] [is] sufficiently cohesive to warrant adjudication by representation.” Id., 150 F.3d at 1022 (citing Amchem, 521 U.S. at 623, 117 S.Ct. 2231). To make this decision, the Court must find that, “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3). The Court must also make a finding that a class action is “superior to other available methods for the fair and efficient adjudication of the controversy.” Id. In making these findings, the Court must consider four factors: 1) the interest individual members of the class may have in controlling their own actions, rather than proceeding as part of a class; 2) whether or not any members of the proposed class have already engaged in related litigation; 3) the appropriateness of the chosen forum; and 4) difficulties in managing the proposed class. Id.
The Court has already ruled that the claims set forth by the Hankin Plaintiffs in this case satisfy the commonality prong of Fed.R.Civ.P. 23(b). However, commonality alone will not satisfy the predominance inquiry. Hanlon, 150 F.3d at 1022. Instead, the predominance inquiry looks to the relationship between the common claims and individual issues. Id. “ When common questions present a significant aspect of the ease and they can be resolved for all members of the class in a single adjudication, there is a clear justification for handling the dispute on a representative basis.’” Id., quoting 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure § 1778 (2d ed.1986).
As stated before, Defendants claim that individual issues surrounding the probable cause determination and the legality of Plaintiffs’ arrests will predominate over the common issues in this action and make it unmanageable. Based on case examples to which this Court has referred, supra, unwieldy individual claims need not dominate the case if it is structured properly. For this reason, in the scheduling order that will follow this Order, the Court will bifurcate this action. In the first stage of the litigation, the Court will examine whether or not there was a
Having addressed the issues that Defendants raise, the Court will also address the four factors set forth in Fed.R.Civ.P. 23(b)(3). In this matter, Plaintiffs will likely be more interested in pursuing this matter as a class, rather than individually, because the damages in this case will likely not be high enough to warrant each individual pursuing a case on his or her own. Second, there have been several other permutations of the WTO litigation, in addition to this matter and the Menotti case. Because Plaintiffs have been tied up in this litigation since 2000, they may have missed their chance to join other cases and this Court should hear these Plaintiffs’ claims. Regarding the appropriateness of the forum, the Western District of Washington is appropriate because it is where the events occurred, it is the locus of the Seattle municipal government, and many Plaintiffs still reside here. Additionally, this case has been proceeding in this Court since 2000. Finally, as to the difficulties in class management, these challenges can be addressed by allowing more discovery early on in this case, so that the validity of named Plaintiffs’ cases can be evaluated, and by bifurcating the trial in this case so that common issues are addressed in the liability stage and individual issues are addressed in the damages stage. Having considered Defendants objections to class certification, as well as the four areas for inquiry under 23(b)(3), this Court finds that the proposed class action satisfies both the predominance and superiority requirements.
CONCLUSION
The Court hereby CERTIFIES a third class in this matter to include:
all individuals arrested between 6 a.m. and 12 p.m. on December 1, 1999, in Seattle, Washington, in Westlake Park, or on the streets or sidewalks on Fourth Avenue, between Pike Street and Pine Street, or on Pike or Pine Streets between Fourth and Fifth Avenues.
The Court will grant an additional ninety days of discovery in this matter. This case shall be bifurcated. The liability stage of this case shall proceed first. During the first stage, the Court will also determine if any common facts exist regarding Plaintiffs’ arrests. If the ease survives, then the Court will address the damages issues as to each individual Plaintiff separately. A scheduling order will follow that reflects these decisions. The parties should not agree to modify this scheduling order without approval by the Court. Finally, the Court STRIKES Defendant’s late-filed surreply for being out of conformity with the local rules.
The Clerk is directed to send copies of this order to all counsel of record.
. Judge Rothstein retains the Menotti case.