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BARNER v. CITY OF HARVEY

September 13, 2004.

EZELLA BARNER, MYRTHA BARNER, and DENARD EAVES, Plaintiffs,
v.
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.

BACKGROUND

  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) ("Brewton I").

  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

  DISCUSSION

  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 ...


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