United States District Court, N.D. Illinois, Eastern Division
September 13, 2004.
EZELLA BARNER, MYRTHA BARNER, and DENARD EAVES, Plaintiffs,
CITY OF HARVEY, NICHOLAS GRAVES, CHRISTOPHER BARTON, PHILIP HARDIMAN, CAMILLE DAMIANI, FRANK PIEKARSKY, DONALD WHITTED, and MARY ANN SAMPSON, Defendants.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the following motions: (1)
Defendants' Motion to Decertify Due Process Class; (2)
Defendants' Motion to Dismiss Count I of the Seventh Amended
Complaint; and (3) Plaintiffs' Local Rule 78.5 Motion Calling
Previously Filed Motions to the Court's Attention and Renewed
Motions for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b)
and for Certification for Appeal Pursuant to Federal Rule of
Civil Procedure ("Rule") 54(b). For the reasons that follow: (1)
Defendants' motion to decertify is granted; (2) Defendants'
motion to dismiss is denied as moot; and (3) Plaintiffs' motions
for certification are denied.
The Court presumes familiarity with the extensive factual and
procedural background of this nine year-old case, but the Court
will briefly summarize the relevant events. On March 25, 1997, Judge Coar certified two classes in this case. See Barner v.
City of Harvey, No. 95 C 3316, 1997 WL 139469, at *5-6 (N.D.
Ill. Mar. 25, 1997) ("Barner I"). Class I consists of
African-Americans who were employed by the City of Harvey over a
specified period of time and were subject to adverse employment
actions because of their race and political support of the former
mayor of Harvey. Class II, often referred to as the "due process
class," consists of African-Americans employed by the City of
Harvey who were entitled to appear before a duly constituted
Civil Service Commission to contest adverse employment decisions
during a specified period of time but were denied those rights
due to their race and political support of the former mayor of
Harvey.*fn1 See id.
The classes were bifurcated for trial. On November 21, 2001,
after a four-week trial, a jury rendered a verdict in favor of
Defendants on three counts of Plaintiffs' complaint related to
Class I, finding no pattern or practice of racial and political
discrimination. On May 22, 2002, the Court found for Defendants
on Plaintiffs' claim that Defendants' practice of making
termination decisions based on job titles alone had a disparate
impact on African-American employees.
On March 28, 2003, the Court granted Defendants' motion to
sever the Plaintiffs' claims, leaving joined only the claims of
named plaintiffs Ezella Barner, Myrtha Barner, and Denard Eaves.
See Barner v. City of Harvey, No. 95 C 3316, 2003 WL 1720027,
*1 (N.D. Ill. Mar. 31, 2003) ("Barner III"). The six severed
named plaintiffs then filed individual actions, all of which have
since been settled. The three remaining plaintiffs filed a
Seventh Amended Complaint, which alleges various individual claims of discrimination and in Count
I realleges the Class II due process claim.*fn2
Meanwhile, on September 4, 2002, nineteen putative members of
Class I filed a separate complaint, Brewton v. City of Harvey,
No. 02 C 6289, which was assigned to Judge Bucklo. The Brewton
complaint alleges (1) racial discrimination in violation of the
Equal Protection Clause and Title VII and (2) retaliation in
violation of the First Amendment. On September 29, 2003, Judge
Bucklo granted in part and denied in part Defendants' motion to
dismiss the Brewton complaint, and she also granted Defendants'
request to sever the claims of all named plaintiffs. See Brewton
v. City of Harvey, 285 F. Supp. 2d 1121, 1128 (N.D. Ill. 2003)
On May 27, 2004, Judge Bucklo granted Defendants' motion to
certify for appeal, pursuant to 28 U.S.C. § 1292(b), one of the
issues in Brewton I: "the question of whether the statute of
limitations for class members' individual claims of
discrimination remain tolled throughout the liability phase of a
pattern or practice class action."*fn3 Brewton v. City of
Harvey, 319 F. Supp. 2d 890, 892-93 (N.D. Ill. 2004) ("Brewton
II"). Defendants have since filed a petition to appeal portions
of Brewton I in the Seventh Circuit.
Defendants now move for the third time to decertify the due
process class and also to dismiss the due process count in the
Seventh Amended Complaint. Plaintiffs have renewed their motions for interlocutory appeal of the severance order pursuant to
28 U.S.C. § 1292(b) and for certification for appeal of "all
class-related rulings" pursuant to Rule 54(b).*fn4
I. Motion to Decertify
Courts have "broad discretion to determine whether
certification of a class is appropriate." Retired Chi. Police
Ass'n v. City of Chi., 7 F.3d 584, 596 (7th Cir. 1993); see
Chavez v. Ill. State Police, 251 F.3d 612, 629 (7th Cir. 2001).
Rule 23(a) establishes certain prerequisites that must be met
before a class may be certified:
One or more members of a class may sue or be sued as
representative parties on behalf of all only if (1)
the class is so numerous that joinder of all members
is impracticable, (2) there are questions of law or
fact common to the class, (3) the claims or defenses
of the representative parties are typical of the
claims or defenses of the class, and (4) the
representative parties will fairly and adequately
protect the interests of the class.
Fed.R. Civ. P. 23(a); see also Fed.R. Civ. P. 23(b) (listing
additional requirements that must be satisfied if the Rule 23(a)
prerequisites are met). Plaintiffs have the burden of
demonstrating that Rule 23's requirements have been fulfilled.
See Retired Chi. Police Ass'n, 7 F.3d at 596; see also Ellis
v. Elgin Riverboat Resort, 217 F.R.D. 415, 419 (N.D. Ill. 2003)
("[O]n a motion to decertify the class, [the plaintiffs] bear
the burden of producing a record demonstrating the continued
propriety of maintaining the class action.") (citation omitted). In analyzing whether a class should be certified, a court
generally must accept the plaintiffs' allegations as true. See
Ellis, 217 F.R.D. at 419 (citing Retired Chi. Police Ass'n,
7 F.3d at 598). "However, because `the class determination
generally involves considerations that are enmeshed in the
factual and legal issues comprising the plaintiff's cause of
action,' the court must sometimes `probe behind the pleadings
before coming to rest on the certification question.'" Id.
(quoting Gen. Tel. Co. v. Falcon, 457 U.S. 147
, 160 (1982)).
Rule 23(c)(1)(C) provides that: "An order [to certify a class]
under Rule 23(c)(1) may be altered or amended before final
judgment." Indeed, a court "remains under a continuing obligation
to review whether proceeding as a class action is appropriate,
and may modify the class or vacate class certification pursuant
to evidentiary developments arising during the course of
litigation." Ellis, 217 F.R.D. at 419 (citations omitted).
"Thus, the court's initial certification of a class `is
inherently tentative.'" Id. (quoting Coopers & Lybrand v.
Livesay, 437 U.S. 463, 469 n. 11 (1978)).
In his order certifying the due process class, Judge Coar cited
the following factors as supporting numerosity: (1) the due
process class contained at least thirteen members; (2) issues of
race and political discrimination were common to the class; (3)
his concern that class members could not pursue their claims
individually; and (4) the interest of judicial economy favored
litigating the claims together rather than individually. See
Barner I, 1997 WL 136469, at *3. The Court finds that new
developments in the litigation in the intervening seven-plus
years justify revisiting the original class certification order.
Plaintiffs, however, seek to hold the Court to its earlier
denial of Defendants' second motion to decertify, seizing upon
the Court's conclusion that the motion was denied "with
prejudice." Prior to that ruling, however, the Court had
cautioned Defendants that the motion would not be considered unless it presented new law or new facts that were not before
Judge Coar, and the motion failed to do so. See Barner II, 2000
WL 1369636, at *1-2. Plaintiffs further claim that there have
been no changes in this litigation other than the number of known
members of the due process class. The Court finds this argument
interesting, given that the actual changes in the litigation
include a jury verdict for Defendants on Plaintiffs' claims of a
pattern and practice of discrimination based on race or political
affiliation, this Court's finding that the practice of
terminating employees based on job title had no disparate impact
on African-American employees, severance of all but three named
Plaintiffs in this case, and settlement of all of the severed
Plaintiffs' individual claims. Moreover, even if the only change
in the litigation were the number of putative due process class
members, that change alone would justify decertification if
numerosity is now lacking.*fn5 See Gaspar v. Linvatec
Corp., 167 F.R.D. 51, 55 (N.D. Ill. 1996). "[T]he failure to
satisfy even one of Rule 23(a)'s prerequisites is fatal to
bringing a class action. . . .").
To warrant certification, the class must be "so numerous that
joinder of all members is impracticable." Fed.R. Civ. P.
23(a)(1). The rule does not require Plaintiffs to specify the
number of putative class members, but they "cannot rely on
conclusory allegations that joinder is impractical or on
speculation as to the size of the class in order to prove
numerosity." Marcial v. Coronet Ins. Co., 880 F.2d 954, 957
(7th Cir. 1989). "To determine whether joinder is impracticable
courts must consider the circumstances unique to each case." Ellis,
217 F.R.D. at 421; see Gaspar, 167 F.R.D. at 56.
Plaintiffs do not offer the actual number of due process class
members but concede that it is no greater than ten.*fn6
(Resp. Defs.' Mot. Decertify Due Process Class at 4.) Although a
small class, by itself, does not conclusively establish that the
class lacks numerosity under Rule 23(a)(1), there must be some
additional factor demonstrating that joinder is impracticable,
e.g., geographic dispersion or claims that cannot be pursued
individually. See Moreno v. DFG Foods, LLC, No. 02 C 4019, 2003
WL 21183903, at *6 (N.D. Ill. May 21, 2003); Cwiak v. Flint Ink
Corp., 186 F.R.D. 494, 497 (N.D. Ill. 1999); Riordan v. Smith
Barney, 113 F.R.D. 60, 62 (N.D. Ill. 1986); Allen v. Isaac,
99 F.R.D. 45, 53 (N.D. Ill. 1983).
Plaintiffs have made no showing that the putative class remains
sufficiently numerous to justify continued certification. Most,
if not all, of the due process class members have already filed
individual lawsuits alleging due process violations or related
claims. Assuming that there are class members who have not yet
filed individual lawsuits, there is no allegation that they
cannot do so or that they are geographically dispersed. See
Ellis, 217 F.R.D. at 521 (quoting Betts v. Sundstrand Corp.,
No. 97 C 50188, 1999 WL 436579, at *5 (N.D. Ill. June 21, 1999)
("[T]he `lack of geographic dispersion' of class members `weighs
against' class certification because joinder impracticability decreases where all class members can be found within the same
judicial district."). Therefore, the Court finds that the due
process Class II no longer meets the requirements of Rule 23(a),
and the class is decertified pursuant to Rule 23(c)(1)(C).
II. Certification of Severance Order Pursuant to
28 U.S.C. 1292(b)*fn7
Plaintiffs have renewed their request that this Court certify
for appeal its March 28, 2003 severance order, pursuant to
28 U.S.C. § 1292(b), which provides:
When a district judge, in making in a civil action an
order not otherwise appealable under this section,
shall be of the opinion that such order involves a
controlling question of law as to which there is
substantial ground for difference of opinion and that
an immediate appeal from the order may materially
advance the ultimate termination of the litigation,
he shall so state in writing in such order. The Court
of Appeals which would have jurisdiction of an appeal
of such action may thereupon, in its discretion,
permit an appeal to be taken from such order, if
application is made to it within ten days after the
entry of the order. . . .
28 U.S.C. § 1292(b).
As in their previous motion, Plaintiffs contend that "the issue
of whether a jury verdict of no pattern or practice of
discrimination necessarily precludes joinder of parties under
Rule 20" is an issue that may be certified under § 1292(b).
(Pls.' Renewed Mots. for Interlocutory Appeal at 7.) However, as
fully explained in this Court's December 12, 2003 order denying
Plaintiffs' first motion for § 1292(b) certification, the
severance order did not find that the jury verdict "necessarily
precludes joinder." To the contrary, the order to sever was based
on a careful examination of specific factual issues raised at the trial, facts which
demonstrated that the claims of most of the named plaintiffs were
not transactionally related. Furthermore, as this Court stated in
its prior opinion, the fact that three plaintiffs were allowed to
remain joined clearly demonstrates that there was no mechanical
finding that the jury verdict precludes joinder. For these
reasons and those given in the December 12, 2003 order, the
severance order presented no controlling question of law to be
decided, there is no substantial ground for difference of
opinion, and an immediate appeal would not materially advance the
ultimate termination of the litigation. See Ahrenholz v. Bd. of
Trs. of Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000)
(holding that "[u]nless all [the § 1292(b)] criteria are
satisfied, the district court may not and should not certify its
order to us for an immediate appeal") (emphasis in original).
Plaintiffs next argue that the severance order should be
certified because the Seventh Circuit might address the order in
the Brewton appeal anyway. Plaintiffs contend that they will
ask the Seventh Circuit to review Judge Bucklo's decision to
sever the plaintiffs' claims in Brewton I, that because Judge
Bucklo's order relied on this Court's severance order, "the Court
of Appeals will necessarily be considering this Court's
decision," and further, that if Judge Bucklo's order is reversed,
"it logically follows that this Court's decision to sever also
would be erroneous." (Pls.' Renewed Mots. for Interlocutory
Appeal at 7-8.) The Court disagrees.
First, it appears highly doubtful that Judge Bucklo's severance
order will be addressed by the Seventh Circuit at all. While
Brewton I addressed both the motion to dismiss and motion to
sever, the § 1292(b) certification in Brewton II was limited to
an issue related to the motion to dismiss. Second, it is
difficult to comprehend how or why the appellate court would sua
sponte address the severance issue, because it does not appear
to be even tangentially related to the questions raised on appeal.*fn8 Finally, even if Plaintiffs' prediction is
proven correct, it does not change the fact that the question
sought to be certified does not satisfy even one of § 1292(b)'s
requirements. For the same reason, the Court rejects Plaintiffs'
unsupported argument that "allowing appellate review of this
Court's severance ruling could prevent the Barner class
members' claims from becoming further fragmented by precluding
numerous other courts from becoming involved in claims stemming
from the original Barner class action." (Pls.' Renewed Mots.
Interlocutory Appeal at 8.) Plaintiffs' motion for § 1292(b)
certification of the severance order is therefore denied.
III. Certification of Class-Related Claims Pursuant to Rule
Plaintiffs have also renewed their motion for leave to appeal
"all class-related rulings"*fn9 pursuant to Rule 54(b),
which provides: When more than one claim for relief is presented in
an action, . . . the court may direct the entry of a
final judgment as to one or more but fewer than all
of the claims or parties only upon an express
determination that there is no just reason for delay
and upon an express direction for the entry of
judgment. . . .
Fed.R. Civ. P. 54(b).
Although Plaintiffs do not list the "class-related rulings" to
which they refer, it must be assumed that an appeal is sought for
the Class I jury verdict and this Court's finding of no disparate
impact, which are the only rulings that adjudicated class claims.
Plaintiffs argue that a reversal of the class rulings would
affect the burden of proof necessary in their individual claims
and would render proceedings on the individual claims moot. As a
result, according to Plaintiffs, allowing an appeal now would
conserve judicial resources. Finally, Plaintiffs claim that
appellate resolution of "open legal issues" will promote
An entry of a final judgment "is only proper if the claim of
which the judgment disposes is truly a separate one," and "a
determination of whether two claims are separate is generally a
matter of sound judicial discretion." O'Brien v. Sage Group,
Inc., 141 F.R.D. 273, 275 (N.D. Ill. 1992). Certification for
appeal is appropriate only if there is minimal, if any, overlap
between the claim sought to be appealed and the remaining claims:
The test for separate claims under [Rule 54(b)] is
whether the claim that is contended to be separate so
overlaps the claim or claims that have been retained
for trial that if the latter were to give rise to a
separate appeal at the end of the case the court
would have to go over the same ground that it had
covered in the first appeal.
Lawyers Title Ins. Corp. v. Dearborn Title Corp.,
118 F.3d 1157, 1162 (7th Cir. 1997).
In this case, the final judgments of the pattern or practice
claim and the disparate impact claim arguably do not overlap
Plaintiffs' remaining individual claims of discrimination. See
Cooper v. Fed. Reserve Bank, 467 U.S. 867, 877 (1984) (holding that
there are no common issues between the first stage of a pattern
or practice claim and an individual discrimination lawsuit).
Plaintiffs, however, argue that if the Seventh Circuit were to
reverse the class verdicts, then it may also order new trials of
Plaintiffs' individual claims. Plaintiffs therefore assert that
there is substantial overlap between the final judgments on the
class issues and the remaining individual claims. Although the
Court does not necessarily agree, the Court will accept
Plaintiffs' contention in an abundance of caution. Because
Plaintiffs concede that the class claims are not separate from
the individual claims, the jury verdict and the Court's finding
of no disparate impact cannot be certified for appeal.
The Court notes, as an additional matter, that this order
decertifying the due process class is not subject to either Rule
54(b) or § 1292(b) but is instead governed by Rule 23(f), which
A court of appeals may in its discretion permit an
appeal from an order of a district court granting or
denying class action certification under this rule if
application is made to it within ten days after entry
of the order. An appeal does not stay proceedings in
the district court unless the district judge or the
court of appeals so orders.
Fed.R. Civ. P. 23(f); see Richardson Elecs., Ltd. v. Panache
Broad. of Pa., Inc., 202 F.3d 957
, 959 (7th Cir. 2000)
("[D]istrict judges should not, and we shall not, authorize
appeal under 28 U.S.C. § 1292(b) when appeal might lie under Rule
IV. Notice to Class of Decertification Order
Finally, Plaintiffs request that if decertification is ordered,
notice be given to all class members advising them of their right
to file an individual due process claim. Defendants do not oppose
Plaintiffs' request for notice but argue that the cost of any
such notice be borne by Plaintiffs. The Seventh Circuit has held that "decertification has the same
effect on the members of the class, so far as the running of the
statute of limitations is concerned, as dismissal of the class
action it is tantamount to dismissal and so it should be
treated the same under Rule 23(e)." Culver v. City of
Milwaukee, 277 F.3d 908, 915 (7th Cir. 2002). Pursuant to Rule
23(e), "[t]he court must direct notice in a reasonable manner to
all class members who would be bound by a proposed settlement,
voluntary dismissal, or compromise." Fed.R. Civ. P. 23(e)(1)(B).
Rule 23(e) imposes on courts a "nondelegable" duty to the class
"to order notice unless the risk of prejudice to absent class
members is nil and to review for adequacy the form of notice
proposed by class counsel in response to the order." Culver,
277 F.3d at 915. The Court therefore orders Plaintiffs to file a
proposed notice pursuant to Rule 23(e) no later than fifteen days
from the date of this Memorandum Opinion and Order. The cost of
the notice will be borne by the class. See Culver,
277 F.3d at 915. CONCLUSION
For the foregoing reasons: (1) Defendants' Motion to Decertify
Due Process Class [doc. no. 425-1] is granted; (2) Defendants'
Motion to Dismiss Count I of the Seventh Amended Complaint [doc.
no. 422-1] is denied as moot; and (3) Plaintiffs' Local Rule 78.5
Motion Calling Previously Filed Motions to the Court's Attention
and Renewed Motions for Interlocutory Appeal Pursuant to
28 U.S.C. § 1292(b) and for Certification for Appeal Pursuant to
Rule 54(b) [doc. nos. 434-1, 434-2] is denied. Class II,
originally certified on March 25, 1997, is hereby decertified
pursuant to Rule 23(c)(1)(C). Plaintiffs are ordered to file a
proposed notice of the due process class decertification order
pursuant to Rule 23(e) no later than fifteen days from the date
of this Memorandum Opinion and Order.