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Elton Gates, et al v. City of Chicago

May 12, 2011

ELTON GATES, ET AL., PLAINTIFFS,
v.
CITY OF CHICAGO, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER

Plaintiffs Elton Gates ("Gates") and Luster Nelson ("Nelson") (collectively, "Plaintiffs") initiated this class action lawsuit under 42 U.S.C. § 1983 against the City of Chicago ("the City") and Chicago Police Superintendent Philip J. Cline (collectively, "Defendants").*fn1 (No. 1, Compl.) Plaintiffs challenge the constitutionality of the City's policies governing the inventorying and return of money seized from individuals upon their arrest by the Chicago Police Department. (No. 192, Fifth Amended Compl.) Pursuant to 28 U.S.C. § 636(c), the parties have now consented to the jurisdiction of the United States Magistrate Judge in this matter. (No. 514, Joint Consent to Exercise of Jurisdiction of U.S. Magistrate Judge.) Currently before the Court is Plaintiffs' motion for certification of a supplemental class under Federal Rule of Civil Procedure ("Rule") 23(b)(3). (No. 480, Pls.' Mot. for Certification of Supplemental Class ("Pls.' Supplemen- tal Class Mot.").) For the reasons set forth below, Plaintiffs' motion is hereby granted with modification.

I. BACKGROUND

This is the eighth opinion to be issued in this case, including six opinions from the Northern District of Illinois and two decisions handed down by the Seventh Circuit Court of Appeals. See Gates v. Towery, 331 F. Supp. 2d 666 (N.D. Ill. 2004) ("Gates I") (partially granting and partially denying Plaintiffs' motion to reconsider dismissal of their complaint); Gates v. Towery, No. 04 C 2155, 2004 WL 2583905 (N.D. Ill. Nov. 10, 2004) ("Gates II") (granting Plaintiffs' motion for class certification with modification), aff'd, 430 F.3d 429 (7th Cir. 2005) ("Gates III"); Gates v. Towery, 435 F. Supp. 2d 794 (N.D. Ill. 2006) ("Gates IV") (partially granting and partially denying Defendants' motion to dismiss); Gates v. Towery, 456 F. Supp. 2d 953 (N.D. Ill. 2006) ("Gates V") (redefining the certified class and partially granting Defendants' motion to dismiss); Gates v. Towery, 507 F. Supp. 2d 904 (N.D. Ill. 2007) ("Gates VI") (dismissing certain claims and granting summary judgment in favor of Defendants on remaining claims); Gates v. City of Chicago, 623 F.3d 389 (7th Cir. 2010) ("Gates VII") (holding that Plaintiffs' restitution claims were properly dismissed as moot, but that the grant of summary judgment to Defendants on the due process "notice" and "procedures" issues was in error). The factual background and extensive procedural history of this case have been outlined by both the District Court and the Seventh Circuit in past opinions and will not be recounted here except as pertinent to the pending motion. See, e.g., Gates V, 456 F. Supp. 2d at 957-58; Gates VII, 623 F.3d at 391-94.

Plaintiffs initially moved for class certification in May of 2004. (No. 11, Pls.' Mot. for Class Certification.) In response, the District Court certified a class on November 9, 2004 pertaining to Plaintiffs' federal due process claims.*fn2 Gates II, 2004 WL 2583905, at *9. This class was affirmed by the Seventh Circuit in Gates III, 430 F.3d at 429, and subsequently modified in Gates V, 456 F. Supp. 2d at 970. In Gates V, the District Court divided the original due process class into two subclasses, one for non-narcotics arrestees and one for narcotics arrestees. 456 F. Supp. 2d at 970. Plaintiff Gates was designated the representative of the non-narcotics subclass and Plaintiff Nelson was to represent the narcotics subclass. Id. at 968-70. These due process class definitions have remained unchanged since Gates V and are defined as follows:

A narcotics [or non-narcotics] class, composed of all those persons who, after March 23, 2002, and before December 14, 2004, had property taken from them upon their arrests by Chicago police officers provided: (a) the criminal charges against them have been resolved in the trial court; (b) no forfeiture action was commenced against the seized property; (c) the time for filing a forfeiture action has expired; (d) the property was not inventoried as evidence in any criminal investigation; (e) the arrestee was issued an inventory receipt when arrested indicating that the arrestee would be notified when the property was available for pick-up; (f) the arrestee never received notice that the property was ready for return; (g) the money has not been returned to the arrestee; and (h) the arrestee was [not] arrested for a narcotics offense.

Id. at 969-70.

Following the 2010 remand of this case from the Seventh Circuit in Gates VII, Plaintiffs have sought to supplement the prior class certification order. (No. 480, Pls.' Supplemental Class Mot. at 1.) In Gates VII, the Seventh Circuit held that summary judgment had been granted to Defendants in error as to Plaintiffs' due process claims regarding the inventorying and return of money seized from them by Chicago police officers. 623 F.3d at 413. In so holding, the court made clear that "meaningful notice" and "adequate procedures" are two separate and distinct due process questions and that Plaintiffs had adequately raised and preserved both issues. Id. at 404-05. Based on this recent clarification of the due process questions at issue, Plaintiffs now propose a new due process "procedures" class to supplement the originally certified class that focused on the due process "notice" issues.

At present, the parties have reached an agreement to settle the bulk of this case, and substantial steps towards the preliminary approval of this proposed settlement have already been taken. The questions regarding the certification and legal merit of Plaintiffs' proposed supplemental class remain the last unresolved issues in the case. All parties have indicated their commitment to proceeding with the proposed settlement while simultaneously working towards the resolution of these remaining issues. Additionally, the parties have stated that the disposition and/or appeal of the supplemental class issues will not alter or delay the settlement that is currently underway.

II. LEGAL STANDARDS

Under Rule 23(c)(1)(C), a court retains broad power to modify the definition of a previously certified class at any time before final judgment if it believes that the class definition is inadequate. Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 322, 328-29 (N.D. Ill. 1995); see also Fed. R. Civ. P. 23(c)(1)(C) ("An order that grants or de-nies class certification may be altered or amended before final judgment."); William B. Rubenstein, Alba Conte & Herbert B. Newberg, 3 Newberg on Class Actions § 7:47 (4th ed. Supp. 2010) ("Because class rulings may be altered or amended at any time before a decision on the merits, class rulings are often reconsidered, and subsequently affirmed, altered, modified, or withdrawn."). Reconsideration of an original class ruling typically occurs as a result of a change in circumstances, Pope v. Harvard Bancshares, Inc., 240 F.R.D. 383, 387 (N.D. Ill. 2006), and "[i]n the absence of materially changed or clarified circumstances . . . courts should not condone a series of rearguments on the class issues by either the proponent or the opponent of the class[.]" Newberg on Class Actions § 7:47; see also 7AA Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1785.4 (3d ed. Supp. 2010) ("[A]lthough the court's initial decision under Rule 23(c)(1) . . . may be the final resolution of the [class certification] question, it is not irreversible and . . . the class description [can be] altered if later events suggest that it is appropriate to do so."). However, the decision to alter or amend a class-certification order is discretionary, Robin v. Doctors Officenters Corp., 686 F. Supp. 199, 203 (N.D. Ill. 1988), and a court is not required to revise a previous class-action order even when "circumstances surrounding its initial determination change." Wright, Miller & Kane § 1785.4.

Although Rule 23 gives a court discretion in deciding whether to amend or alter a previous class certification order, the party seeking modification still bears the burden of showing that the proposed class meets the federally mandated requirements for class certification. This first requires the moving party to demonstrate that the pro-posed class satisfies all of the elements of Rule 23(a): (1) the class must be so numerous that joinder of the class members is impracticable ("numerosity"); (2) there must be questions of law or fact common to the class ("commonality"); (3) the claims or defenses of the class representatives must be typical of the claims or defenses of the class as a whole ("typicality"); and (4) the representatives must be willing and able to fairly and adequately protect the class interests ("adequacy"). Fed. R. Civ. P. 23(a); see also Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir. 2000); Gates II, 2004 WL 2583905, at *1. A judge "should make whatever factual and legal inquiries are necessary" to ensure that all four elements are met. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001).

If the proposed class meets these Rule 23(a) prerequisites, the moving party must further show that the class satisfies at least one of the Rule 23(b) requirements. Fed. R. Civ. P. 23(b); see also Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir. 2000); Gates II, 2004 WL 2583905, at *1. In this case, Plaintiffs seek certification under Rule 23(b)(3) which provides for class certification if the court finds that "the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). In deciding this issue, courts are to consider: (1) class members' individual interests in controlling the course of litigation; (2) existing litigation concerning the same controversy; (3) the effects of concentrating litigation in the current forum; and (4) the difficulties of managing a class action. Id.

III. ANALYSIS

Plaintiffs seek certification of a supplemental class because they maintain that the currently certified class "do[es] not fully resolve the important issues of law in this litigation." (No. 480, Pls.' Supplemental Class Mot. at 2.) Specifically, Plaintiffs contend that while the existing class addresses the adequacy of the notice provided to arrestees regarding the return of their inventoried property, a supplemental class is necessary to address the adequacy of the City's procedures. (Id.) As a primary basis for this argument, Plaintiffs rely upon the Seventh Circuit's opinion in Gates VII. In assessing Plaintiffs' due process challenge to the City's inventorying policies, the Seventh Circuit emphasized the two distinct elements of Plaintiffs' argument: (1) "the City did not provide meaningful notice of its inventory and property return procedures"; and (2) "the City failed to provide adequate procedures for the return of [arrestees'] money." Gates VII, 623 F.3d at 394. The Seventh Circuit thereby clarified the issues before the Court in this case, and rejected Defendants' claim that Plaintiffs had waived the due process "procedures" arguments. Id. at 404-05. Plaintiffs thus contend that the certification of a supplemental "procedures" class is appropriate at this time to consider whether the "City is constitutionally obligated to return all inventoried cash at the conclusion of the underlying criminal cases, unless the City secures a court order allowing it to retain the inventoried cash beyond the final disposition." (No. 522, Pls.' Reply to Defs.' Supplemental Resp. to Pls.' Supplemental Class Mot. at 5.)

In their most recent brief supporting this new "procedures" class, Plaintiffs proposed two subclasses that mirror the narcotics and non-narcotics distinction in the cur-rently certified "notice" class. (No. 522, Pls.' Reply to Defs.' Supplemental Resp. to Pls.' Supplemental Class Mot. at 6.) However, the Court has been informed that in the time since the last briefing on this issue, the parties have agreed to resolve the non-narcotic claims outside of court. Therefore, with the agreement of all parties, this opinion will focus on the certification of a "procedures" class for narcotics arrestees represented by Plaintiff Nelson.

For such a narcotics class, Plaintiffs offer four main changes to the current "notice" narcotics subclass.*fn3 (Id. at 12.) First, the end date of the proposed "procedures" class would be extended through the present date.*fn4 (Id.) Second, the proposed class definition does not exclude the claims of arrestees whose property was inventoried as evidence. (Id.) Third, the proposed class definition adds the requirement that the City has not secured a court order to retain the property at issue. (Id.) Finally, the proposed class would eliminate the current class definition elements related to the content of the no-tice received by the class member. (Id.) The proposed "procedures" narcotics class represented by Nelson would therefore consist of:

All those persons who had money taken from them upon their arrests by Chicago police officers for a narcotics related arrest from March 23, 2002 to the present provided: (a) an inventory receipt was issued to them for the cash that was seized; (b) the criminal charges that resulted in that arrest have been resolved in the trial court; (c) no forfeiture action was commenced against the seized money; (d) the time for filing a forfeiture action has expired; (e) the City of Chicago did not secure a court order to retain the property beyond the final resolution of the criminal charges; and (f) the inventoried money, plus interest accruing from the date the criminal charges were resolved, has not been returned to the class member. (Id.)

In opposing Plaintiffs' motion, Defendants argue that the supplemental class motion is "fatally flawed" for four basic reasons. First, Defendants claim that the proposed class does not comply with the specific requirements of Rule 23. (No. 497, Defs.' Resp. to Pls.' Mot. for Certification of a Supplemental Class at 2; No. 526, Defs.' Additional Resp. to Pls.' Mot. For Certification of a Supplemental Class at 5.) Second, Defendants contend that Plaintiffs have failed to establish the requisite showing of changed circumstances to support modification of the existing certified class, and have waived their opportunity to revisit the class definition issue by failing to appeal previous rulings concerning the terminus date for the class. (No. 497, Defs.' Resp. to Pls.' Mot. for Certification of a Supplemental Class at 2.) Third, Defendants argue that the claims of the proposed supplemental class are not viable as a result of the recent settlement of related litigation and the resulting changes to City inventorying policy. (No. 497, Defs.' Resp. to Pls.' Mot. for Certification of a Supplemental Class at 1-2; No. 526, Defs.' Addi- tional Resp. to Pls.' Mot. For Certification of a Supplemental Class at 3.) Finally, Defendants claim that additional discovery is required as to the "procedures" issues because the parties have been litigating a "notice" class. (No. 497, Defs.' Resp. to Pls.' Mot. for Certification of a Supplemental Class at 2.) The Court will address each of these arguments in turn.

A. Rule 23 Class Certification Requirements

Defendants' primary Rule 23 argument is that Nelson does not share the requisite "commonality" and "typicality" with the proposed "procedures" class. (No. 497, Defs.' Resp. to Pls.' Mot. for Certification of a Supplemental Class at 14-15; No. 526, Defs.' Additional Resp. to Pls.' Mot. For Certification of a Supplemental Class at 2.) Because this Court cannot certify a class unless all Rule 23 requirements are satisfied, we choose to consider more than just the commonality and typicality elements challenged by Defendants. Specifically, we assess whether the proposed class meets all of the requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). Many of these class ...


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