ADRIANN BORUM, et al., Plaintiffs, v. BRENTWOOD VILLAGE, LLC, et al., Defendants.
Civil Action No. 16-1723 (RC)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Re Document No.: 43
GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION; GRANTING PLAINTIFFS’ MOTION FOR THE APPOINTMENT OF CLASS COUNSEL
I. INTRODUCTION
Plaintiff Adriann Borum seeks to represent a putative class of residents of her apartment complex, Brookland Manor, whom she alleges are at risk of being displaced should Defendants proceed with their plans to redevelop the complex, or who have already been displaced in anticipation of the redevelopment.1 The planned redevelopment will eliminate four- and five-bedroom apartments in the complex, and will reduce the number of three-bedroom apartments as well. This policy, Ms. Borum claims, will have a disparate impact on hundreds of residents based on their familial status in violation of the Fair Housing Act (”FHA”) and the D.C. Human Rights Act (”DCHRA”). Additionally, Ms. Borum claims that Defendants have made discriminatory
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendants in this action—Brentwood Associates, L.P.; Mid-City Financial Corporation; and Edgewood Management Corporation—plan to redevelop Brookland Manor, an affordable housing complex in the Brentwood neighborhood of Washington, D.C. Brookland Manor currently contains 535 units, which range in size from one- to five-bedroom apartments. See Pls.’ Mot. Class Cert. & Appointment Class Counsel (”Pls.’ Mot.”), Ex. 12 at 1–2, ECF No. 43-17. Once Brookland Manor has been transformed into the new Brentwood Village development, the complex will contain 2,235 rental apartments and for-sale homes. Id. at 1. While today Brookland Manor contains 75 three-bedroom apartments, 113 four-bedroom apartments, and 21 five-bedroom apartments, once Defendants have completed the redevelopment, Brentwood Village will have zero four- and five-bedroom apartments, and only 64 three-bedroom apartments. See Pls.’ Mot., Ex. 4 at 5–6, ECF No. 43-9. It is this planned alteration in the composition of the complex that Ms. Borum challenges. As a resident of a four-bedroom apartment, which she occupies with her five children (two minor and three adult), she fears that once the redevelopment takes place, she will be, at best, stuck competing with 117 other
Defendants began the process of seeking approval for this redevelopment in October 2014, when they submitted their application for a First-Stage planned unit development (”PUD”) approval. See Zoning Case Records, Case No. 14-18, available at https://app.dcoz.dc.gov/Content/Search/ViewCaseReport.aspx?case_id=14-18. The application was approved in 2015. Id. Defendants filed their application for Second-Stage PUD approval in September 2016, one month after Ms. Borum had filed this action. That application is still pending. See Zoning Case Records, Case No. 14-18A, available at https://app.dcoz.dc.gov/Content/Search/ViewCaseReport.aspx?case_id=14-18A. Once that application has been approved, Defendants will be able to begin redeveloping the property. See generally
Along with her complaint, Ms. Borum had filed a motion for a preliminary injunction asking the Court to bar ”Defendants from filing their second-stage PUD application with the Zoning Commission.” Pls.’ Mot. Prelim. Inj. at 15. Since Defendants filed their Second-Stage application before the Court ruled on Ms. Borum’s motion for a preliminary injunction, she
In response, Defendants filed a motion to dismiss on several grounds: lack of exhaustion of administrative remedies; lack of jurisdiction under the Rooker-Feldman doctrine; the Younger abstention doctrine; ONE DC’s lack of standing; and failure to state a claim. See Defs.’ Mem. in Supp. Mot. Dismiss, ECF No. 16. The Court denied both motions, see Borum v. Brentwood Village, LLC, 218 F. Supp. 3d 1 (D.D.C. 2016), and ordered the commencement of ”limited discovery for the purpose of exchanging information related to the demographics of Brookland Manor residents as necessary to adjudicate a motion for class certification.” Scheduling Order, ECF No. 34.
With the materials from that discovery in hand, Ms. Borum has now moved for certification of the following hybrid class under Rules 23(b)(2) and (b)(3):
All households who reside or have resided at Brookland Manor in a three-, four-, or five-bedroom unit with one or more minor child, and (i) have been displaced from a three-, four-, or five-bedroom unit at Brookland Manor since October 1, 2014 (the date that Defendants proposed their First Stage PUD to the Zoning Commission), or (ii) are at risk of being displaced from a three-, four-, or five-bedroom unit at Brookland Manor.
Pls.’ Mot. at 1, ECF No. 43. She also moved for the appointment of her legal team as class counsel. Id. at 2. For the reasons set forth below, Ms. Borum’s motion for class certification is granted in part and denied in part, and her motion for the appointment of class counsel is granted.
III. LEGAL STANDARDS
”A district court exercises broad discretion in deciding whether to permit a case to proceed as a class action.” Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994). However,
When appropriate, district courts may redefine classes or subclasses sua sponte prior to certification. See
IV. ANALYSIS
Ms. Borum has moved for certification of the following hybrid class under Rules 23(b)(2) and (b)(3):
All households who reside or have resided at Brookland Manor in a three-, four-, or five-bedroom unit with one or more minor child, and (i) have been displaced from a three-, four-, or five-bedroom unit at Brookland Manor since October 1, 2014 (the date that Defendants proposed their First Stage PUD to the Zoning Commission), or (ii) are at risk of being displaced from a three-, four-, or five-bedroom unit at Brookland Manor.
Pls.’ Mot. at 1. For the reasons set forth below, the Court grants certification of the following class under Rule 23(b):
All individuals who reside at Brookland Manor in a three-, four-, or five-bedroom unit with one or more minor child, 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.
A. Rule 23(a) Requirements
Ms. Borum contends that she has satisfied each of Rule 23(a)’s four prerequisites for her entire proposed class, and Defendants claim that she has satisfied none. As explained below, the
1. Families displaced between October 1, 2014 and the conclusion of this litigation
Ms. Borum has moved to include in her class those ”who have resided at Brookland Manor in a three-, four-, or five- bedroom unit with one of more minor child and . . . have been displaced from [those apartments] since October 1, 2014.” Pls.’ Mot. at 1. For those individuals she seeks damages for ”monetary costs related to moving services or apartment brokerage fees and increased transportation costs to school and work.” Compl. ¶ 123. She also seeks an injunction for them, so that they ”will have a future opportunity to reside at Brookland Manor or the redevelopment property in a three-, four-, and five-bedroom unit.” Id. For the other group of individuals in her proposed class, those who ”are at risk of being displaced from a three-, four-,
”The underlying theme [of class certification] is flexibility; different cases call for different approaches.” Lamphere v. Brown Univ., 553 F.2d 714, 719 (1st Cir. 1977). And while the decision whether and how to certify a class is left to the district court, in some instances ”failure to limit overbroad cases by the use of appropriate subclasses may be an abuse of discretion.” Marcello v. Regan, 574 F. Supp. 586, 591–92 (D.R.I. 1983) (citing Geraghty v. U.S. Parole Comm’n, 579 F.2d 238, 253 (3d Cir. 1978), vacated on other grounds, 445 U.S. 388 (1980)); see also Fink v. Nat’l Sav. & Tr. Co., 772 F.2d 951, 960–61 (D.C. Cir. 1985) (”the reviewing court may require the district court to consider on the record the possibility of certifying subclasses”).
Here, it is appropriate to consider those residents who have already been displaced or will displaced before the conclusion of this litigation as a separate subclass because without this separation, the class Ms. Borum has proposed would be overbroad and ineligible for certification. First, Ms. Borum has moved to include in the class those individuals who have been displaced since October 1, 2014, without specifying whether individuals included in that group need to have been displaced because of the redevelopment in order to be included. Therefore, it is impossible to tell from her proposed definition whether those individuals have any claims in common, as required by
As explained in Section IV.A.2, infra, once displaced individuals are removed from the class, current residents who are at risk of displacement do satisfy each of Rule 23(a)’s four prerequisites, including commonality and adequacy of representation. Therefore, in order to allow those class members who do satisfy Rule 23(a)’s prerequisites the opportunity to proceed with the litigation without undue delay, the Court exercises its discretion by separating Ms. Borum’s proposed class into two subclasses. It does this even though the subclass of displaced individuals does not meet the requirements of Rule 23(a) by itself, and therefore cannot be certified at this time.
When deciding whether to certify subclasses, district courts must ensure that each subclass satisfies the requirements of Rule 23. See D.L. v. District of Columbia, 713 F.3d 120, 129 (D.C. Cir. 2013). Ms. Borum’s briefing paid a great deal of attention to residents of Brookland Manor who she worries are at risk of being displaced by the elimination of four- and five-bedroom apartments and the reduction in the number of three-bedroom apartments. However, her briefing paid very little attention to those residents who have purportedly already been displaced by Defendants’ redevelopment plans. Indeed, Ms. Borum does not point to a single individual who has been displaced due to the proposed redevelopment since Defendants submitted their First Stage PUD to the Zoning Commission. As such, Ms. Borum has given no indication of how many former residents of Brookland Manor have been displaced, preventing the Court from performing any sort of numerosity analysis for that group. A class representative ”must be prepared to prove that there are in fact sufficiently numerous parties” to satisfy
Ms. Borum would also like to include in her class individuals who are currently at risk of being displaced, and are then displaced during the pendency of this litigation, so that they might recover money damages just like former residents who have already been displaced. Compl. ¶ 123. However, by definition, none of these individuals exist yet. Because these individuals do not yet exist, and indeed may never exist, if, for example, Plaintiffs succeed in securing an injunction that allows the entire class to remain on the property, this subgroup cannot satisfy Rule 23(a)’s numerosity requirement either.
If, however, this group does come into existence following the Court’s class certification order, or if Plaintiffs are subsequently able to identify individuals who have already been displaced because of the redevelopment, Ms. Borum may renew her motion for certification of this subclass. But it should be noted that unless Ms. Borum has also been displaced due to the redevelopment plan by then, her injury (a risk of displacement) will not be typical to those putative class members who have at that point already been displaced. Therefore, unless Plaintiffs have added a new named plaintiff whose injury is typical of the proposed subclass, and who will be able to fairly and adequately represent the interests of that class, Ms. Borum’s renewed motion for class certification would likely be denied then as well.
2. Families still living in three-, four-, or five-bedroom apartments
The remainder of Ms. Borum’s proposed class qualifies for certification as a subclass. As explained below, the Court finds that a class of individuals (rather than households) who are living in three-, four-, and five-bedroom apartments that contain minor children and their guardians and are at risk of being displaced solely due to the redevelopment’s elimination of four- and five-bedroom apartments and its reduction in the number of three-bedroom apartments satisfy the requirements of
a. Numerosity
Ms. Borum first contends that she has established that her proposed class is ”so numerous that joinder of all members is impracticable.”
Based on the most recently available data, Ms. Borum’s expert, Dr. Andrew Beveridge, estimates that there were 118 families (totaling 543 people) in three-, four-, and five-bedroom apartments in Brookland Manor in January 2017. Beveridge Decl. ¶ 9.3 Therefore, Ms. Borum argues that the class she proposes is ”so numerous that joinder would be impracticable.” Pls.’ Mem. at 10. Defendants object to Ms. Borum’s claim of numerosity on several grounds, which the Court addresses in turn below.
i. Occupancy Standards
Defendants spend a large portion of their opposition brief attacking the analysis of Ms. Borum’s expert, Dr. Andrew Beveridge, and his estimation of how many individuals are at risk of being displaced by the redevelopment plan. See Defs.’ Opp’n Pls.’ Mot. Class Cert. (”Defs.’ Opp’n”) at 9–10, 12–24, ECF No. 45. Dr. Beveridge analyzed two things in his declaration: 1) ”[t]he number of family households residing in three-, four- and five-bedroom apartments at Brookland Manor and the family composition of those households,” and 2) ”[t]he number of family households living at Brookland Manor, their family composition, and the number of bedrooms for those family compositions required by applicable law and regulation.” Beveridge Decl. ¶ 3. In determining the appropriate number of bedrooms for these families, Dr. Beveridge used the D.C. Housing Authority’s voucher size determination regulations, id. ¶ 6, and found that in 2017, when excluding non-parent adults from the equation, 81 families totaling 419 people required apartments with three bedrooms or more, and including non-parent adults, 96 families totaling 486 people did. Beveridge Decl. tbls. 5 & 7. Defendants attack this analysis, arguing that
The 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 on residents based on their familial status. However, requiring a determination of which occupancy standards apply to which families at this stage in the litigation amounts to a requirement that each class member prove that they will prevail on the merits of their claim. ”The concern of
Defendants may be correct that Dr. Beveridge used the wrong standard in determining how many bedrooms each family requires, thereby inflating the number of individuals who will actually be forced to move should the redevelopment proceed unaltered. But such a standard is not relevant to determining how many families are currently living in large apartments who are at risk of displacement because they will not be able to move back into similarly large apartments when the redevelopment is complete, as the class is ”currently defined.” Id. At this point in the proceedings, Ms. Borum has demonstrated that that group, so defined, is sufficiently large to satisfy
ii. Non-Parental Adults
Next, Defendants argue that ”[t]he class which plaintiff[] define[s] is overbroad and runs contrary to this Court’s admonition because it seeks to include individuals not qualifying for familial status under the FHA and the DCHRA.” Defs.’ Opp’n at 5. The admonition to which Defendants are referring is the sentence in a footnote in the Court’s prior ruling on Plaintiffs’ motion for a preliminary injunction, in which the Court noted that ”by a plain reading of the statutory text, the FHA protects only minor children living with parents (or similar guardians).” Borum, 218 F. Supp. 3d. at 26 n.13 (citing
”[I]n order to maintain a class action, each member of the class must have standing to assert her own claims against the defendant.” Fort Worth Emps.’ Ret. Fund v. J.P. Morgan Chase & Co., 862 F. Supp. 2d 322, 331 (S.D.N.Y. 2012). The FHA provides that it shall be
One avenue of recourse for violations of
The current language of the ”familial status” and ”aggrieved person” provisions were added to the Fair Housing Act in 1988. ”Congress expanded the Fair Housing Act to protect against familial status discrimination in light of an express concern for the plight of single-parent families, young families with children, and poor families.” United States v. Branella, 972 F.
In Gladstone, the Court had held that, because Congress intended standing under the FHA ”to extend to the full limits of Art. III, the normal prudential rules do not apply[.] [A]s long as the plaintiff suffers actual injury as a result of the defendant’s conduct, he is permitted to prove that the rights of another were infringed.” Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 103 n.9 (1979). For example, white homeowners could challenge two real estate brokerage firms’ practice of ”steering” black homebuyers and white homebuyers to different neighborhoods based on their race, a violation of the FHA, even when the white homeowners who sued had not been steered to a different neighborhood based on their race, but rather already lived in the neighborhood to which black homebuyers were being steered. Id at 111–12. Their standing was based in ”the transformation of their neighborhood from an integrated to a predominantly Negro community[,] depriving them of ’the social and professional benefits of living in an integrated society.’” Id. The Court was persuaded that the white residents had alleged actual injury caused by the discrimination, including ”the loss of social and professional benefits,” as well as ”economic injury” in the form of the ”absolute or relative diminution in value of the individual respondents’ homes.” Id. at 115.
iii. Residents of Three-Bedroom Apartments
Defendants also argue that Ms. Borum’s ”inclusi[on] in the headcount of families living in 3BR apartments when the record is uncontradicted that the Redevelopment Plan will include at least 64 3BR apartments” is another ”glaring deficienc[y]” in her numerosity analysis. Defs.’ Opp’n at 7. Defendants contend that this is a deficiency because fewer than 64 families currently occupy the 75 three-bedroom apartments at Brookland Manor, and therefore are at no risk of
iv. Families Whose Minor Children Have Now Turned 18
Defendants next question Ms. Borum’s inclusion in her headcount of families whose children were minors on October 1, 2014 (the date the First-Stage PUD application was filed) or on August 26, 2016 (the date the Complaint was filed), but have now turned 18, or will before 2020, when the anticipated next phase of the redevelopment plan proceeds. Defs.’ Opp’n at 11. Specifically, Defendants claim that 38% of the families occupying large apartments as of June 2017 will no longer qualify for familial status protection by 2020. Id. at 27. Ms. Borum does not respond to the contention that households with children who have since turned 18 and no longer
Plaintiffs must have live claims at the time of class certification. See Sosna v. Iowa, 419 U.S. 393, 403 (1975). Individuals living in apartments that no longer have minor children no longer fit within the class definition of people residing in large apartments with minor children and their guardians who are at risk of displacement. Therefore, individuals in households that no longer contain minor children cannot be counted as class members going forward. However, Defendants have not argued that excluding the residents of households that recently housed minor children, but no longer do, from the class member count decreases the number of putative class members to a number below forty residents. See Barnes v. District of Columbia, 242 F.R.D. 113, 121 (D.D.C. 2007) (citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (numerosity presumed at forty class members). Additionally, the number of households that aged out of the class definition between January 2017 and the certification of this class is likely small, and according to Defendants’ expert, likely fewer than 45. See Clark Decl. at 6. As such, with a count of 118 apartments housing 543 people as recently as last year, the Court finds that Ms. Borum has established numerosity, even excluding those households, which are likely few in number, that no longer contain minor children.
In order to satisfy
As explained in Coleman ex rel. Bunn, apart from the number of class members, ”additional factors that courts consider in assessing the practicability of joinder include: (1) judicial economy arising from avoidance of a multiplicity of actions; (2) geographic dispersion of class members; (3) size of individual claims; (4) financial resources of class members; and (5) the ability of claimants to institute individual suits.” Coleman ex rel. Bunn v. District of Columbia, 306 F.R.D. 68, 80 (D.D.C. 2015) (internal quotation marks omitted) (citing Newberg on Class Actions § 3:12 (5th ed. 2014)).
This case involves two claims—disparate impact and discriminatory statements—which can both be addressed through an injunction. As such, adjudicating each class members’ claims
b. Commonality
Ms. Borum also contends that she satisfies Rule 23(a)‘s commonality requirement because she is challenging a single policy or practice that has a disparate impact on Brookland Manor residents based on their familial status. Pls.’ Mem. at 11–14. Commonality requires a finding that there are “questions of law or fact common to the class,”
Defendants respond that Ms. Borum has not demonstrated that all of the putative class members “suffer[ed] the same injury.” Defs.’ Opp‘n at 38 (quoting Wal-Mart, 564 U.S. at 349). They continue that “District of Columbia precedent establishes that the alleged policy or practice must affect all members of the class in the same way to establish commonality, and plaintiff, at a minimum, must offer evidence that the class members have in common the elements of those claims.” Id. (citing Parker v. Bank of Am., N.A., 99 F. Supp. 3d 69, 80 (D.D.C. 2015)). Defendants contend that Ms. Borum has not demonstrated that all members of the putative class will be affected by the policy in the same way because the type of injury sustained by each plaintiff will be “a product of numerous factual inquiries such as how many individuals within a particular apartment enjoy familial status protection[;] which subsidy program, if any, applies to the specific family[;] what occupancy standard applies to the family[;] what size apartment is dictated by application or the correct occupancy standard[;] whether alternative apartment configuration, such as adjoining units, represent an effective measure to avert injury[;] and whether any particularized defenses (as are applicable to Plaintiff Holloman)5 apply.” Id. at 38–39.
c. Typicality
Ms. Borum next contends that her claims are typical of all class members’ claims, because she “assert[s] rights under both the FHA and DCHRA based on the systematic actions of the Defendants.” Pls.’ Mem. at 15. Defendants claim that Ms. Borum‘s claim is not typical because she has yet to suffer any displacement and is not at risk of being displaced until at least late 2020. Defs.’ Opp‘n at 36–37. Additionally, Defendants argue that Ms. Borum‘s claim is not typical of the class‘s because she has “non-protected individuals” (her adult children) living with her, and the protected individuals in her apartment (Ms. Borum and her two minor children)
Rule 23(a)(3) requires a plaintiff to show that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.”
Here, Defendants have not demonstrated that Ms. Borum‘s claims differ significantly from those of other class members who are still residing at Brookland Manor. The claims that she brings, and the claims that the class as a whole will bring, are claims of disparate impact and discriminatory statements under state and federal law, 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). And, if Defendants’ argumentation regarding the numerosity and commonality prongs of Rule 23(a) are any indication, the defenses that Defendants claim apply to Ms. Borum will also be the defenses they use to defend against the claims of other class members. Therefore, it is clear that Ms. Borum‘s claims, and the defenses she will need to
d. Adequacy of Representation
Last, Ms. Borum contends that she and her attorneys “will fairly and adequately protect the interests of the class.”
Defendants claim that Ms. Borum has not met the adequacy requirement for several reasons. First, they claim that Ms. Borum has a conflict of interest with a substantial number of putative class members because there is a “significant disagreement within the class” about whether the redevelopment should go forward as currently planned. Defs.’ Opp‘n at 32. In support of this contention, Defendants submitted declarations from thirty putative class members expressing “support of the Redevelopment Plan” and “disapproval of the instant litigation.” Id. at 33. Defendants also submitted a letter supporting the redevelopment plan signed by tenants of large apartments, as well as individual letters of support. Id. at 33–34.
However, none of these declarations or letters make clear that the signatories or authors knew that the redevelopment would not contain apartments as large as the ones they are currently
Defendants cite to several cases to support their contention that courts should not certify classes when some of the putative class members support the position of the defendant rather than the plaintiff. See Defs.’ Opp‘n at 35–36. However, in each of the cases cited, the interests of the named plaintiffs were deemed to be in actual conflict with those of the dissenting class members. For example, in Shulman v. Ritzenberg, forty-seven of fifty-three class members submitted affidavits explaining, among other things, that “that they d[id] not believe plaintiff‘s conduct [wa]s consistent with the best interests of the joint ventures of which they [we]re
In response, Ms. Borum cites to examples where courts found that disagreement among class members did not defeat a plaintiff‘s claim of adequacy where the disapproving class members’ interests were adequately represented by the defendants. See Pls.’ Reply at 21–22. The Court need not decide which philosophy should prevail, as in this case there does not appear to be any substantial conflict between Ms. Borum‘s interests and the interests of other putative class members, even the ones who submitted declarations supporting the redevelopment. As Ms. Borum explains, she did not file suit in order to permanently impede the redevelopment of Brookland Manor, but rather to ensure that she and other residents would not be displaced by the redevelopment in a way that discriminated against them based on their familial status. See Pls.’ Reply at 19 n.16. As such, the only class members whose interests conflict with Ms. Borum‘s would be those currently residing in large apartments who wish for those large apartments to be eliminated during the redevelopment. Since there is no evidence that any such resident exists, the
Defendants also argue that Ms. Borum cannot serve as an adequate representative of the class when she “lack[s] any real and immediate injury or threat of injury.” Defs.’ Opp‘n at 28. This purported lack of a threat of injury is due to her household containing several non-parental adults whom Defendants argue are not entitled to protection under the FHA or DCHRA. Id. at 28–29. By excluding the non-covered adults, Defendants argue that covered members of Ms. Borum‘s family would be able to fit into an apartment with two bedrooms or fewer, of which there will be plenty in the redeveloped complex. Id. In support of this contention, Defendants cite to E. Tex. Motor Freight Sys. Inc. v. Rodriguez, an employment discrimination case in which the Supreme Court held that plaintiffs who had already been determined to lack the necessary qualifications for the employment at issue could not have suffered any injury as a result of the employer‘s alleged discriminatory practices, and therefore could not adequately represent a class of plaintiffs challenging the discriminatory policy. 431 U.S. 395, 403 (1977); Defs.’ Opp‘n at 31–32. However, in that case, it had already been determined after a trial on the merits, which was held prior to the debate over class certification, that the plaintiffs had not been harmed by the challenged policy. See Rodriguez v. E. Tex. Motor Freight, Inc., No. SA-71-CA-302, 1973 WL 200, at *1 (W.D. Tex. Mar. 22, 1973). As such, no question of fact remained as to whether they were appropriately members of the class being considered.
Here, Ms. Borum has alleged injuries under the FHA and DCHRA, both past (discriminatory statements) and future (displacement that disparately impacts families). These allegations are sufficient to make her an adequate representative. Whether she and the putative class may succeed on the merits of their disparate impact and discriminatory statement claims are
B. Rule 23(b)(2)
Defendants argue that Ms. Borum has not demonstrated that her class meets the requirements of Rule 23(b)(2), a type of class action that may be maintained when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”
Defendants assert that Rule 23(b)(2)‘s requirements have not been met because, in their opinion, not all class members are similarly situated. For example, Defendants argue that, occupants of three-bedroom apartments will not be impacted by the redevelopment in the same way as residents of four- and five-bedroom apartments, nor will occupants of apartments that contain multiple small families be impacted in the same way as apartments that contain one large one. Defs.’ Opp‘n at 39. Because these various class members are not identically situated, Defendants claim that “it cannot be concluded that any single injunction or declaratory judgment would provide relief to each member of the class.” Id.
However, as Ms. Borum explains in her motion for class certification, she is seeking an injunction that would do two things: require “Defendants to modify their redevelopment plan in a manner so as to eradicate disparate impact,” Pls.’ Reply at 22, and preclude “Defendants from making further statements that discriminate against families.” Pls.’ Mem. at 19. Ms. Borum is
C. Class Counsel
Ms. Borum also moves, unopposed, for the appointment for her legal team as class counsel. See Pls.’ Mem. at 24–25. Rule 23(g) provides that a court must appoint
adequate class counsel to represent the class after considering: (1) the work counsel has done in identifying or investigating potential claims in this action, (2) counsel‘s experience in handling class actions, other complex litigation, and claims of the type asserted in the action, (3) counsel‘s knowledge of the applicable law, and (4) the resources counsel will commit to representing the class.
Johnson v. District of Columbia, 248 F.R.D. 46, 58 (D.D.C. 2008) (internal quotation marks and citation omitted). Ms. Borum‘s legal team, comprised of multiple attorneys with experience in complex civil and civil rights litigation, meets all of these requirements. See Decl. Maureen F. Browne, ECF No. 43-3; Decl. Matthew Handley, ECF No. 43-4. As such, the Court grants Ms. Borum‘s motion to appoint her current legal team as class counsel.
V. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Class Certification (ECF No. 43) is GRANTED IN PART AND DENIED IN PART, and Plaintiffs’ Motion for Appointment of Class Counsel (ECF No. 43) is GRANTED. The following class is hereby CERTIFIED under Rule 23(b)(2):
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.
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: February 12, 2018
RUDOLPH CONTRERAS
United States District Judge