The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Diana Rodriguez has sued the Chief of Police of the Village of Montgomery and the Village (the "Village Defendants"), as well as the Sheriff of Kane County, the State's Attorney of Kane County, and the County (the "County Defendants"), pursuant to 42 U.S.C. § 1983, seeking equitable relief and damages. Rodriguez alleges the defendants violated her constitutional due process rights by denying her right to a prompt post-seizure probable cause hearing after Village law enforcement officials seized her vehicle.
Rodriguez has moved pursuant to Federal Rule of Civil Procedure 23(b)(2) and (b)(3) for certification of a class consisting of all those persons who had vehicles seized in Kane County provided: (1) the vehicle was not immediately returned to the owner; (2) the vehicle was impounded pursuant to 720 ILCS 5/36-1 ("Article 36"); and (3) the vehicle was held for more than seven days without a hearing to determine probable cause to continue to detain the vehicle. For the reasons set forth below, the Court grants Rodriguez's motion with regard to her claims against the County Defendants but denies the motion with regard to her claims against the Village Defendants.
On January 24, 2008, Rodriguez's son was driving her car, when Village of Montgomery police stopped him and issued him a ticket for driving on a suspended license. The police towed Rodriguez's car to the Montgomery police station, where it was held in accordance with Article 36. For several weeks, Rodriguez contacted the Montgomery police to inquire about the return of her vehicle. The police informed Rodriguez, however, that her car would not be returned and that she would eventually receive notice about the forfeiture proceedings from the Kane County State's Attorney. Rodriguez learned nothing more until nearly two months later, when she received notice that the State's Attorney had filed a forfeiture action and that a hearing was scheduled for May 5, 2008.
Rodriguez argues that both sets of defendants failed to provide her with a prompt post-seizure hearing in violation of her due process rights. She alleges that the Village Defendants have a policy and practice to delay delivery of property seized pursuant to Article 36 to the County Defendants without conducting a hearing. As a result, Rodriguez contends, vehicles remain in the Village's possession for more than ten days without a hearing to determine whether the vehicle is actually subject to seizure under Article 36. Rodriguez also claims that the inherent delays in the Village's practice prevent the owner from posting bond to secure release of the vehicle. She maintains that further delays occur after the County Defendants are notified of the seizure and obtain possession of the vehicle. Once the Village turns the cars over to the County, Rodriguez alleges, they remain in the Sheriff's possession for an extended period without a hearing to determine the propriety of the seizure.
Rodriguez requests a declaratory judgment that the defendants violated her due process rights, an injunction against defendants' current practice of retaining seized property for weeks without a judicial determination of cause, and an award damages and attorney's fees.
A party seeking class certification bears the burden of showing that the conditions of Rule 23 are satisfied. See General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982); Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir. 1984). First, the putative plaintiff must satisfy the four prerequisites of Rule 23(a): the class is so numerous that joinder of the class members is impracticable; there are questions of law or fact common to the class; the claims or defenses of the class representatives are typical of the claims or defenses of the class as a whole; and the representatives will fairly and adequately protect the class interests. Fed. R. Civ. P. 23(a). Second, the moving party must demonstrate that the class satisfies at least one of the Rule 23(b) requirements. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993).
The Court notes preliminarily that Rodriguez claims that each group of defendants independently violated her due process rights.*fn1 Accordingly, the Court evaluates class certification separately as to each group of defendants.
1. Rule 23(a) Requirements
Rule 23(a)(1) requires that a class be so "numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). In determining numerosity, a court may not rely on conclusory allegations as to the size of a class or the impracticability of joinder, Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989), and may require plaintiff to establish class size through affidavits or other evidence. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001). A court may, however, make common sense assumptions to determine class size. Hispanics United of Du Page County v. Village of Addison, 160 F.R.D. 681, 688 (N.D. Ill. 1995).
Rodriguez contends that the alleged policy affects hundreds of people annually. She relies on the records obtained from the State's Attorney to support her position. These records reflect that law enforcement officials within Kane County impounded more ...