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
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 ...