85 F.R.D. 360 | E.D. Va. | 1980
MEMORANDUM
On 26 September 1979 the Court entered an order in the seven consolidated HOME cases granting to plaintiffs in six of those cases
The Court finds that the information on numerosity adduced by the plaintiffs is sufficient to show that the requirement is satisfied with respect to the claims asserted against each defendant. Accordingly, a plaintiff class will be certified in each of the above-captioned actions. Separate certification orders will issue in accordance with this memorandum.
With respect to the several actions, the class boundaries deserve comment. The parties plaintiff in these six cases,
Rule 23 of the Federal Rules of Civil Procedure provides, in pertinent part, that
[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if . (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a)(3), (4).
In considering whether the typicality requirement has been met, the emphasis of the Court’s examination is on the square alignment of the class representative’s interests with the interests of the class. See 1 H. Newberg, Class Actions § 1115a (1977). Although a plaintiff’s claim will be considered typical if it “arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and his or her claims are based on the same legal theory,” 1 H. Newberg, supra at § 1115b p. 185; Gerstle v. Continental Airlines, Inc., 50 F.R.D. 213, 219 (D.Colo.1970), aff’d. on other grounds, 466 F.2d 1374 (10th Cir. 1972), Rule 23(a)(3) typicality may “screen out class actions [or class representation] when the legal or factual position of the representatives is markedly different from that of other members, even though common issues of law or fact are raised.” 7 C. Wright & A. Miller, Federal Practice and Procedure § 1764 (1972 & Supp. 1979).
To be deemed an adequate representative of a class, a party must meet several criteria: plaintiff’s attorney must be professionally competent to conduct the particular litigation, Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247 (5th Cir.), cert. denied 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975), and the interests of the representative must neither be in conflict with nor antagonistic to those of the class as a whole. Barnett v. W. T. Grant Co., 518 F.2d 543, 548 (4th Cir. 1975), as limited by Hill v. Western Electric Co., 596 F.2d 99, 102 (4th Cir.), cert. denied 444 U.S. 929, 100 S.Ct. 271, 62 L.Ed.2d 186 (1979); Wetzel v. Liberty Mutual Insurance Co., supra. The antagonism between the representative party and the class which must be present before the certification will be denied is that which goes “to the subject matter of the suit.” 5 H. Newberg, supra at § 8675d p. 548 (citations omitted). To ensure the absence of such conflict between the class and the representative the “class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as class members.” East Texas Motor Freight System v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977), quoting Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2929, 41 L.Ed.2d 706 (1974). See 7 C. Wright & A. Miller, supra at §§ 1768-69. Further, a representative party’s claim should be co-extensive with those claims of the class he seeks to represent; this ensures the vigorous prosecution of the action by the representative which is implicit within the concept of Rule 23(a)(4) adequacy of representation. 1 H. Newberg, supra at § 1074. Thus, the Fourth Circuit recently held that a party may not “represent a class of people who suffered a different injury or those having similar claims but who [in the context of interfacility employment discrimination were] employed in other facilities.” Hill v. Western Electric Co., supra at 102.
nance of a class action. Roman v. ESB, Inc., supra at 1348.
II
Plaintiffs assert their claims of race-based injury in the rental of residential housing upon the Civil Rights Act of 1866, 42 U.S.C. § 1982,
A
The question of the standing of tester plaintiffs in housing discrimination cases to litigate racial steering claims asserted under the Fair Housing Act, 42 U.S.C. §§ 3601 et seq. as well as claims asserted under the Civil Rights Act of 1866, 42 U.S.C. § 1982, has not been resolved. Gladstone, Realtors v. Village of Bellwood, supra, 441 U.S. at 111, 99 S.Ct. at 1614; but see Wheatley Heights Neighborhood Coalition v. Jenna Resales Co., 429 F.Supp. 486, 488 (E.D.N.Y.1977) (tester plaintiffs state claim under 42 U.S.C. § 3604(b)). That question need not be resolved at this juncture in the pending actions. The issue of a plaintiff’s standing to sue is separate .and distinct from the issue of the adequacy of his representation of a class at the pre-trial certification stage.
A class member who has been racially steered by a defendant and who, as a result, has rented an apartment in a racially segregated residential area suffers a distinctly different injury from that which may be suffered by a person employed simply to gather information regarding discriminatory housing practices of real estate agencies. Such difference goes to the nature and to the type of injury. An injured renter plaintiff has allegedly been denied an opportunity to rent a dwelling because of his race, thereby resulting in his living in a segregated neighborhood to his detriment; a tester plaintiff asserting a claim for relief based upon racial steering, if successful in surmounting standing challenges, may likely claim only that he has been denied only the “provision of services” because of his race, as the tester plaintiff has no intent whatsoever to rent a dwelling from the person or agency he questions. Compare 42 U.S.C. § 3604(a) with 42 U.S.C. § 3604(b). See Wheatley Heights Neighborhood Coalition v. Jenna Resales Co., supra. As a different
injury, if injury at all, accrues to a tester plaintiff from that which accrues to a renter plaintiff, such difference will preclude his designation by the Court as a class representative for those claiming monetary damage from being steered into a racially segregated neighborhood. See Hill v. Western Electric Co., supra.
B
The standing of an association, such as HOME, to sue on behalf of itself or on behalf of injured members has been addressed squarely by the Supreme Court. Gladstone, Realtors v. Village of Bellwood, supra; Warth v. Seldin, supra at 510-11;
Plaintiff HOME in five of the above captioned actions
certified. See Hill v. Western Electric Co., supra.
C
Renter plaintiffs in these separate actions
Ill
The Court will certify a class and subclass to include only black persons who have alleged injuries arising out of racial discrimination in residential housing in the Richmond metropolitan area. The Court finds that black renter class representatives would inadequately represent a class or subclass drawn to include white persons due to an absence of typicality between the positions maintained by the racial sub-groups.
renter plaintiff alleging a racial steering injury suffered at the hands of the defendants. The Court, mindful of the economies of the class device, is not so enamored of efficiency as to plunge into a class action where a serious question is present as to the typicality of the claims raised by the instant class representatives vis a vis the classes proposed by the plaintiff. Lack of sufficient Rule 23(a)(3) typicality implicates directly a lack of Rule 23(a)(4) adequate representation; lack of adequate representation raises due process issues concerning the res judicata effect of a final judgment in a class action upon absent class members.
Appropriate orders shall issue.
. On 20 December 1979, following the submission to the Court of briefs and affidavits setting forth information satisfying the criteria of Shelton v. Pargo, 582 F.2d 1298, 1314-16 (4th Cir. 1978) , the case of Young v. Rucker & Richardson, Inc., No. 79-0071-R (E.D.Va. filed Jan. 19, 1979) , was dismissed pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.
. Plaintiffs, on 13 November 1979, filed class-related interrogatories; this date being the last date permitted for the pursuit of class-related discovery, such interrogatories could not possibly have been answered by the date plaintiffs motion for class certification was due. See Initial Pre-Trial Order ¶ 13. As a result, plaintiffs’ motion and brief related to facts which had been disclosed through discovery months before and which had been available, although inadequately developed, at the time of plaintiffs’ original motion for class certification. This apparent ineptitude gives the Court pause to consider the advisability of proceeding to certify a class. Be that as it may, the Court can of course, revoke, alter, or modify the present ruling at a later point in the proceedings, should such be necessary. Fed.R.Civ.P. 23(c), (d).
. The complaint in the case of Turner v. A. B. Carter, Inc., No. 78-1071-R (E.D.Va., filed Dec. 22, 1978), lists five representative plaintiffs: Zenobia Turner, a black renter plaintiff, Jennifer E. Thomas, a black renter plaintiff, Sylvia Coleman, a black tester plaintiff, Linda Harmes, a white tester plaintiff, and Housing Opportunities Made Equal (hereinafter HOME), a non-profit association incorporated under the ■laws of the Commonwealth of Virginia whose multiracial membership is dedicated to the elimination of unlawful racial discrimination in residential housing in the Richmond, Virginia, metropolitan area. These plaintiffs seek to represent “a class composed of all persons who have rented or sought to rent residential property in the City of Richmond, Virginia since December 25, 1976 and who have been, or continue to be, adversely affected” by the defendants’ alleged racial steering practices.
The complaint in the case of Thomas v. Paul Gordon Assoc., Inc., No. 79-0070-R (E.D.Va. filed Jan. 17, 1979), lists four representative plaintiffs: Jennifer E. Thomas, a black renter plaintiff, Sylvia Coleman, a black tester plaintiff, John Barr, a white tester plaintiff, and HOME, a Virginia non-profit corporation. These plaintiffs seek to represent “a class composed of all persons who have rented or sought to rent residential property in the City of Richmond and Henrico County, Virginia, and who have been, or continue to be, adversely affected” by the defendants’ racial steering practices.
The complaint in the case of Turner v. W. D. Nelson & Co., No. 79-0072-R (E.D.Va. filed Jan. 19, 1979), lists five representative plaintiffs: Zenobia Turner, a black renter plaintiff, Sylvia Coleman, a black tester plaintiff, Arthur Kreiger, a white tester plaintiff, John Barr, a white tester plaintiff, and HOME, a Virginia non-profit corporation. These plaintiffs seek to represent “a class composed of all persons who have rented or sought to rent residential property in the City of Richmond, Virginia who have been, or continue to be, adversely affected” by the defendants’ racial steering practices.
The complaint in the case of Jones v. Joseph A. Lange Real Estate, No. 79-0111-R (E.D.Va., filed Feb. 5, 1979), lists three representative plaintiffs: Patricia Jones, a black renter plaintiff, Sylvia Coleman, a black tester plaintiff, and HOME, a Virginia non-profit corporation. These plaintiffs seek to represent “a class composed of all persons who have rented or sought to rent residential property in the City of Richmond, Virginia, who have been, or continue to be, adversely affected” by the defendants’ racial steering practices.
The complaint in the case of Thornton v. Tepper Brothers Realty, No. 79-0112-R (E.D.Va. filed Feb. 5, 1979), lists five representative plaintiffs: Leon Thornton, a black renter plaintiff, Brenda Lee, a black renter plaintiff, Sylvia Coleman, a black tester plaintiff, and HOME, a Virginia non-profit corporation. These plaintiffs seek to represent “a class composed of all persons who have rented or sought to rent residential property in the City of Richmond and Henrico County, Virginia, and who have been, or continue to be, adversely affected” by the defendants’ racial steering practices. None of these described actions lists, as representative or individual party plaintiffs, a single white renter plaintiff who seeks to represent a class of all white persons in the Richmond, Virginia, metropolitan area who have suffered injury as a result of the defendants’ alleged racial steering practices.
. The plaintiff class is to be limited to those persons, who, within the relevant statutory period, suffered monetary injury; as the Court noted in its ruling of 26 September 1979, the instant cases present classes for certification under Rule 23(b)(2) where the injunctive relief demanded will be effectuated class-wide by the granting of relief to a single plaintiff. Certification for injunctive relief in such a case is unnecessary. Sandford v. R. L. Coleman Realty Co., 573 F.2d 173, 178 (4th Cir. 1978). Thus, only ancillary monetary relief remains to be accorded plaintiff class members via the class action device. Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th Cir.), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971); Paxman v. Wilkerson, 390 F.Supp. 442, 449 (E.D.Va. 1975). Should subsequent discovery or other inquiry reveal that the monetary damage claims are insubstantial, the Court may revoke the certification as improvidently granted. Fed.R.Civ.P. 23(c), (d); cf. Lukenas v. Bryce’s Mountain Resort, Inc., 538 F.2d 594, 595-96 (4th Cir. 1976).
. The crucial question in a case where a class representative’s adequacy of representation is at issue is the impact of a final judgment upon absent class members; absént class members who stand to be bound by the effect of a final • judgment in a class action must be assured of representation which is of sufficient factual and legal identity with their own claims that principles of due process are not offended. Where a representative party’s “substantial interests are not necessarily or even probably the same as those whom they are deemed to represent . . [such representation] does not afford that protection to absent parties which due process requires.” Hansberry v. Lee, 311 U.S. 32, 45, 61 S.Ct. 115, 119-120, 85 L.Ed. 22 (1940). See Hill v. Western Electric Co., supra at 101; Roman v. ESB, Inc., 550 F.2d 1343, 1356 (4th Cir. 1976); Barnett v. W. T. Grant Co., supra at 547 n. 4; Johnson v. Georgia Highway Express Inc., 417 F.2d 1122, 1125-27
Regarding the adequacy of class representation of specific racial groups by non-members, compare Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 490-91 (N.D.Cal.1978) (where minority female plaintiff in discrimination action claims that defendant impermissibly prefers whites over minorities and men over women, plaintiff may not represent separate classes of both minority men and white women due to inter-class antagonism), and Rodrigues v. Pacific Tel. & Tel. Co., 70 F.R.D. 414, 416-17 (N.D.Cal.1976) (Portuguese American plaintiff not “Spanish surnamed”, therefore inadequate representative of such a class where plaintiff not injured in same fashion as other minority class members), with Jones v. Milwaukee County, 68 F.R.D. 638, 640-41 (E.D.Wis.1975) (black plaintiffs may represent class containing other minority racial and ethnic groups in Title VII action), and Ellis v. Naval Air Rework Facility, Alameda, Cal., 404 F.Supp. 391, 396 (N.D.Cal.1975) (plaintiffs of black and chicano ancestry may adequately represent claims of minority workers including those of native American or Asian descent). Also see Hernandez v. United Fire Ins. Co., 79 F.R.D. 419, 428 (N.D.Ill.1978) (Hispanic and black plaintiffs certified to represent class including whites where interests of whites were inseparably bound with those of minority members).
. The Civil Rights Act of 1866, Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27, re-enacted by § 18 of the Enforcement Act of 1870, Act of May 31, 1870, ch. 114, § 18, 16 Stat. 140, 144, and codified in §§ 1977 and 1978 of the Revised Statutes of 1874, now 42 U.S.C. §§ 1981 and 1982.
Section 1982 of Title 42 provides that [a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.
42 U.S.C. § 1982 (1978).
The Supreme Court has held unequivocally that § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property .
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 2189, 20 L.Ed.2d 1189 (1968) (emphasis in original).
A claim for relief under § 1982, in Virginia, is governed by the two-year statute of limitations for personal injury actions set forth in Va.Code § 8.01-243 (Repl. Vol. 1977). Allen v. Gifford, 462 F.2d 615 (4th Cir. 1972); Brown v. Blake & Bane, Inc., 409 F.Supp. 1246, 1248 (E.D.Va.1976).
. 42 U.S.C. § 3604 provides that:
[a]s made applicable by section 803 [42 U.S.C. § 3603] and except as exempted by sections 803(b) and 807 [42 U.S.C. §§ 3603(b), 3607] it shall be unlawful—
(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin.
(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, or national origin.
(c) To make, print, publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, or national origin, or an intention to make any such preference, limitation, or discrimination.
(d) To represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.
(e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, or national origin.
42 U.S.C. § 3604 (1973 & Supp. 1979).
42 U.S.C. § 3612, provides, in pertinent part, that:
(a) [t]he rights granted by section 803, 804, 805 and 806 [42 U.S.C. §§ 3603-06] may be enforced by civil actions in appropriate United States district courts without regard to the amount in controversy and in appropriate State or local courts of general jurisdiction. A civil action shall be commenced within one*366 hundred and eighty days after the alleged discriminatory housing practice occurred
(c) The Court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, and may award to the plaintiff actual damages and not more than $1,000 punitive damages, together with court costs and reasonable attorney fees in the case of a prevailing plaintiff: Provided, That the said plaintiff in the opinion of the court is not financially able to assume said attorney’s fees.
42 U.S.C. § 3612 (1973).
Jones v. Joseph A. Lange Real Estate, No. 79-0111-R (E.D.Va., filed Feb. 5, 1979), is brought solely under 42 U.S.C. § 1982 and does not allege a claim for relief under the Fair Housing Act.
. See note 3, supra.
. A “tester” plaintiff may be defined, for the purposes of this action as a person who through pretense has sought information from a lessor or real estate agency concerning the availability of residential rentals without a good faith intent to actually lease available property, but rather with the goal in mind of developing evidence for use in a later prosecution of a racial discrimination claim. A “renter” plaintiff, conversely, is a person who has sought residential rental information from a lessor or real estate agency with the good faith intent, at the time, to actually lease an available parcel of property.
. In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise. In both dimensions it is founded in concern about the proper — and properly limited — role of the courts in a democratic society. In its constitutional dimension, standing imports justiciability . . the standing question is whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf. ... A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered ‘some threatened or actual injury resulting from the putatively illegal- action. . .
Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (citations omitted).
The issue of a class representative’s adequacy under Rule 23(a)(4) assumes that the class representative fully satisfies constitutional and prudential standing doctrines.
Though there is no additional standing requirement for the plaintiff who seeks to represent a class, a proper class action requires a similarity of claims between • the named plaintiff and the class members. This similarity of claims is tested, not by principles of standing, but by the application of Rule 23(a)(3) criteria. If a class action is proper, then by definition the class representative’s claims will be typical of the class. Thus,' the class plaintiffs individual standing, linked to his or her asserted claim, becomes automatically linked to class claims. Having standing which a class representative ‘shares’ with the members of a class is another way of saying that the class representative is a proper party to raise a particular issue common to the class.
1 H. Newberg, supra at § 1072b pp. 124-25.
. There is no question that an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy. Moreover, in attempting to secure relief from injury to itself the association may assert the rights of its members, at least so long as the challenged infractions adversely affect its members’ associational ties. . Even in the absence of injury to itself, an association may have standing solely as the representative of its members. The possibility of such representational standing, however, does not eliminate or attenuate the constitutional requirement of a case or controversy. The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court’s jurisdiction.
Warth v. Seldin, supra, 422 U.S. at 511, 95 S.Ct. at 2211-2212 (citations omitted).
. See note 3, supra.
. Plaintiff HOME typically alleges that it has been frustrated by defendants’ racial steering practices in its efforts to assist equal access to housing through counseling and other referral services. Plaintiff HOME has had to devote significant resources to identify and counteract the defendants’ racially discriminatory steering practices. HOME members have, as a result of defendants’ practices, been deprived of the right to the important social, professional, business and economic, political and aesthetic benefits of interracial associations that arise from living in integrated communities free from discriminatory housing practices, in violation of the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq.
. See note 3, supra.
. In Thornton v. Tepper Brothers Realty, No. 79-0112-R (E.D.Va., filed Feb. 5, 1979), Thornton, a black renter plaintiff, will not be certified as a class representative to represent a subclass of black persons injured within the 180-day statutory period of the Fair Housing Act. Plaintiff Thornton, from the face of the complaint, asserts a racially motivated housing discrimination claim based upon events transpiring on 14 and 15 March 1978. Such a claim is clearly without the statutory period set forth by the Fair Housing Act. See 42 U.S.C. § 3612. Not possessing a claim under the Fair Housing Act, plaintiff Thornton would be an inadequate representative for plaintiffs having claims arising under the Act.
. This decision avoids the necessity for the Court to consider whether § 1982 is applicable to and creates a cause of action in white persons based upon the allegations of racial steering in the instant cases. See Gladstone, Realtors v. Village of Bellwood, supra, 441 U.S. at 116 n. 33, 99 S.Ct. at 1616 n. 33; Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 209 n. 8, 93 S.Ct. 364, 367 n. 8, 34 L.Ed.2d 415 (1972). See also Runyon v. McCrary, 427 U.S.
. See note 5, supra.
