Opinion
Civil Action No: 00-2318, et seq. Section: "R" (2).
June 18, 2001.
ORDER AND REASONS
Before the Court is plaintiffs' amended motion to maintain action as a class action. For the following reasons, the Court grants the motion.
I. BACKGROUND
Plaintiffs have filed this consolidated class action against every sheriff in Louisiana and the Orleans Parish Clerk of Criminal District Court. plaintiffs propose certification of three classes, each consisting of arrestees who challenge the constitutionality of a surcharge allegedly added to their bond amounts. Class one will include all persons arrested or to be arrested and booked in every, parish in Louisiana except Orleans, Avoyelles, Livingston, St. James, and Lafayette Parishes, for all criminal offenses, contempts, attachments, and traffic violations, who within one year of the filing of this lawsuit, paid a defendant sheriff for accepting an appearance bond, promised to pay for accepting an appearance bond, or will be required to do so during the pendency of this litigation, before being released from jail. Classes two and three consist of all similarly situated persons arrested in Orleans Parish who paid defendant Sheriff Foti or defendant Clerk of Criminal District Court, Edwin Lombard, a similar appearance bond, respectively. In the complaint, plaintiffs pray to "enjoin the injurious conduct" of the defendants and for damages. Plaintiffs seek certification of the class under Federal Rule of Civil Procedure 23(b)(2). Plaintiffs have stipulated that they are only seeking injunctive relief and damages incidental to the injunctive relief limited to restitution, judicial interest, attorneys' fees, and costs. Defendants have stipulated that they do not oppose certification under Rule 23(b)(2) and will waive any claims and all defenses of res judicata and estoppel in the event that any individual arrestee seeks monetary damages other than restitution. Defendants also stipulate that Jack L. Dveirin and Samuel S. Dalton are competent and qualified to represent the three classes.
This consolidated case also includes a class action complaint by certain plaintiffs suing the Orleans Parish Sheriff under Civil Action Number 00-2318. These plaintiffs sue for special and punitive damages. A motion to certify this class is not before the Court at this time.
II. DISCUSSION
A district court has great discretion in certifying and managing a class. See Mullen v. Treasure Chest Casino, L.L.C., 186 F.3d 620, 624 (5th Cir. 1999). Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. To be certified, the class must first satisfy the following threshold requirements of Rule 23(a): (1) numerosity (a "class (so large] that joinder of all members is impracticable"); (2) commonality ("questions of law or fact common to the class"); (3) typicality ("named parties' claims or defenses are typical . . . of the class"); and (4) adequacy of representation (representatives "will fairly and adequately protect the interest of the class"). See Id. at 623 ( citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231 (1997)). In addition, the class must satisfy one of the three subsections of Rule 23(b). See Amchem Prods., 521 U.S. at 614, 117 S.Ct. at 2245. The party seeking class certification bears the burden of showing that all of the criteria are met. See Id.; Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996). The parties do not dispute that the classes satisfy the requirements of Rule 23(a); however, the Court will briefly address each requirement.
A. Rule 23(a)
First, plaintiffs satisfy the numerosity requirement because they represent the persons arrested by defendants during the period beginning one year prior to the filing of these lawsuits. Although plaintiffs have not provided specific numbers at this time, they allege that the classes consist of thousands of people. While there is no magic number, a class of more than 100 members generally satisfies the numerosity requirement. See Mullen, 186 F.3d at 624. Defendants do not contest that plaintiffs satisfy this requirement.
Second, plaintiffs also meet the commonality requirement because they identify at least one question of law that affects all potential class members. See Id. Plaintiffs question the constitutionality of the surcharge. Further, defendants do not assert that the commonality requirement is not satisfied.
Third, plaintiffs' claims are typical of the classes. Every potential member paid the surcharge upon posting bond. The purpose of this requirement is to ensure that the interests of the class representatives are similar to those of the other members of the class. See Cope, et al. v. Duggins, et al., 20 WL 381928, *3 (E.D. La. April 13, 2000). A claim is typical it arises from the same event or practice giving rise to the claims of other class members and is based on the same legal theory as the class members. See Id. ( citing Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)). Because plaintiffs base their claims on the same type of surcharge and the same legal theory, they satisfy the typicality requirement.
Lastly, plaintiffs also demonstrate that they can fairly and adequately protect the interests of the classes. Plaintiffs are represented by qualified counsel and have no conflicting interests with other class members. Defendants do not contest that plaintiffs adequately represent the classes.
B. Certification under Rule 23(b)(2)
In this case, plaintiffs seek certification under Rule 23(b)(2). Rule 23(b)(2) permits "class actions for declaratory or injunctive relief when `the party opposing the class has acted or refused to act on grounds generally applicable to the class.'" Amchem Prods., 521 U.S. at 614, 117 S.Ct. at 2245; see also FED. R. Civ. P. 23(b)(2). The rule clearly states that claims seeking injunctive or declaratory relief may be appropriate for Rule 23(b)(2) class certification. If the plaintiffs sought only injunctive and declaratory relief, the Court would have no trouble certifying the proposed classes under Rule 23(b)(2). However, plaintiffs also seek restitution, interest, and attorneys' fees.
In Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998), the Fifth Circuit discussed when certification under Rule 23(b)(2) is appropriate. The court explained that although Rule 23(b)(2) is silent as to whether monetary remedies may be sought in conjunction with injunctive or declaratory relief, the Advisory Committee Notes on Rule 23 state that class certification under Rule 23(b)(2) "does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages." Id. at 411. The court found that this commentary implies that the drafters of Rule 23 intended that at least some form or amount of monetary relief would be permissible in a Rule 23(b)(2) class action. See Id. ( citing Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 257 (5th Cir. 1974)). The court determined that monetary relief may be obtained in a Rule 23(b)(2) class action so long as the predominant relief sought is injunctive or declaratory. See Id.
Monetary relief predominates in Rule 23(b)(2) class actions unless it is incidental to requested injunctive or declaratory relief. See Id. at 415. Incidental damages flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief. See id.; FED. R. Civ. P. 23(b)(2) (referring only to relief appropriate "with respect to the class as a whole"). "Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual's case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations." Id. Whether a given monetary remedy qualifies as incidental damages will not always be a precise determination. The Fifth Circuit in Allison found that the district court was in the best position to assess whether a monetary remedy is sufficiently incidental to a claim for injunctive or declaratory relief to be appropriate in a Rule 23(b)(2) class action. See id. at 416.
The Court finds that the relief sought here is primarily equitable. Plaintiffs seek injunctive relief to prevent defendants from continuing to impose the challenged surcharge. Plaintiffs have stipulated that they seek monetary relief only in the form of restitution in the amount of the surcharge, judicial interest, attorneys' fees, and costs. The amount of the surcharge is a flat rate of either five, seven, or fifteen dollars, depending upon the parish in which the individual was arrested. Thus, the monetary remedy can be determined objectively and does not involve complex, individualized computations. Nor does the remedy involve determination of the merits of claims for injury based on subjective differences among class members. Further, both plaintiffs and defendants agree that Rule 23(b)(2) is the appropriate vehicle for certifying the class.
In the amended motion for class certification, plaintiffs have abandoned their request that members of the class be given notice of and an opportunity to opt out of the class if they wish to seek nonrestitutionary money damages. Further, defendants have stipulated that they will not assert any claim or affirmative defense against individual arrestees who want to seek nonrestitutionary money damages in separate proceedings. The Court finds that because arrestees will not be barred from filing their own lawsuits seeking nonrestitutionary monetary damages, no notice is required. Cf. Johnson v. General Motors Corp., 598 F.2d 432, 437-38 (5th Cir. 1979) (noting that notice would be required if monetary and injunctive relief are sought in a Rule 23(b)(2) action if absent class members are to be bound). Accordingly, because the claims for monetary relief are incidental and the relief sought is primarily injunctive, the Court certifies the proposed classes pursuant to Rule 23(b)(2).
III. CONCLUSION
For the reasons stated above, the Court grants plaintiffs' motion to certify the classes under Rule 23(b)(2).