The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
This matter comes before the Court on plaintiffs' motion for class certification [6-1], which was filed on July 26, 2002, and defendant's motion for an enlargement of time to file a brief in opposition to the "strip search" component of plaintiffs' motion [41-2]. Upon consideration of the parties' motions, the opposition and reply briefs filed thereto, and the applicable law in this case, the Court finds that plaintiffs' motion should be granted in part and denied in part, and that defendant's motion should be denied.
This action arises under section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiffs are persons who have been, are, or will be incarcerated by the District of Columbia Department of Corrections as detainees or prisoners. They seek monetary damages and injunctive relief for defendant's alleged violations of the Fourth, Fifth, and Eighth Amendments to the U.S. Constitution.
Plaintiffs seek the formation of a class and subclass in this case pursuant to Rule 23 of the Federal Rules of Civil Procedure. The alleged injury inflicted by defendant against the putative class consists of holding the putative class members in a Department of Corrections facility past midnight on the date of their scheduled release from custody. The alleged injury inflicted by defendant against the putative subclass consists of subjecting the putative subclass members to strip searches after the members were returned to a Department of Corrections facility following a judicial determination that there was no longer any basis for the members' detention, apart from processing for release from custody.
Plaintiffs filed their second amended complaint on July 23, 2002. On July 26, plaintiffs moved for an order from this Court certifying the proposed class and subclass described above. Defendant submitted its opposition brief on December 16, and plaintiffs filed a reply brief in support of their motion on January 13, 2003. On December 9, 2002, plaintiffs dismissed the claims of all of the named plaintiffs except for Marcus Bynum, Kim Nabinette, Leroy S. Thomas, Dianne Johnson, Gloria Scarborough, and Julian Ford. On the same date, defendant moved for a further enlargement of time to respond to plaintiffs' motion to certify a subclass in this action. Plaintiffs submitted their brief in opposition to defendant's motion for an enlargement of time on December 20.
II. DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME
Although defendant has filed an opposition brief to plaintiffs' motion for class certification, that brief contains no discussion of plaintiffs' proposal to certify a subclass in this action consisting of inmates allegedly subjected to unconstitutional strip searches. Instead, in conjunction with its motion for partial summary judgment, defendant filed a motion for an extension of time in which to file a brief in opposition to plaintiffs' motion to certify a subclass. The sole justification presented by defendant for its request for an enlargement of time was that if the Court were to grant its motion for partial summary judgment, plaintiffs' motion to certify the subclass would be mooted. In a separate memorandum and order filed this date, the Court denied defendant's motion for partial summary judgment. The Court will also deny defendant's motion for an enlargement of time.
Rule 23(c) of the Federal Rules of Civil Procedure states that "[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained." Plaintiffs' motion to certify the class and subclass in this action has been pending since July 26, 2002, yet defendant has filed no brief in opposition to plaintiffs' motion to certify the subclass. Defendant has apparently been operating under the assumption that such a filing would be unnecessary while its summary judgment motion was pending. That assumption has proven incorrect.
Moreover, such an assumption was unwarranted, given the fact that the issue of whether to certify a class (or subclass) proceeds without an examination of the merits of the case, as in a summary judgment motion. Because eight months is more than enough time for defendant to have filed a brief in opposition to plaintiffs' motion to certify the subclass, and because the mandate of Rule 23(c) is clear, the Court will not brook any further delay of the certification question. Accordingly, it will deny defendant's motion for a further enlargement of time, and deem defendant to have waived its right to file a brief in opposition to plaintiffs' motion to certify the subclass. Although the Local Rules of the District of Columbia permit the Court to treat such a motion as conceded, the Court will nevertheless examine the merits of plaintiffs' motion before determining whether the certification of a subclass is appropriate.
III. PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
"The party requesting class certification under Rule 23 bears the burden of showing the existence of a class, that all the prerequisites of Rule 23(a) are satisfied, and that the class falls within one of the categories of Rule 23(b)." Franklin v. Barry, 909 F. Supp. 21, 30 (D.D.C. 1995). The evidence that plaintiffs have presented in support of class certification is presumably the same evidence that plaintiffs will rely upon to prove the merits of their case at trial. However, as noted above, the class certification inquiry does not extend to an examination of the merits of the case. Instead, the legal standard is whether the evidence presented by plaintiffs establishes a "reasonable basis for crediting [plaintiffs'] assertion[s]." Wagner v. Taylor, 836 F.2d at 578, 587 n. 57 (D.C. Cir. 1987) (quoting Kuck v. Berkey Photo, Inc., 81 F.R.D. 736, 739 (S.D.N.Y. 1979)); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) ("In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.") (quoting Miller v. Mackey Int'l, 452 F.2d 424, 427 (5th Cir. 1971)).
The initial inquiry by the Court is whether a class exists that can be certified. Additionally, Rule 23 of the Federal Rules of Civil Procedure, which governs class certification, requires a party seeking certification to satisfy the requirements of subdivisions (a) and (b). Rule 23(a) mandates that a class should be certified 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 represent the interests of the class.
Finally, in order to maintain an action as a class action, the party seeking certification must demonstrate that one of the relevant provisions of Rule 23(b) have been satisfied. In the instant case, plaintiffs represent that the putative class satisfies subsections (b)(2) and (b)(3) of Rule 23. Rule 23(b)(2) requires a showing that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Rule 23(b)(3) requires the Court to find that "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
The Court will examine each of these requirements in turn.
"It is axiomatic that for a class action to be certified a `class' must exist." Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981). On the subject of whether a class exists, this Court has explained that
[a]lthough Rule 23 of the Federal Rules of Civil
Procedure does not specifically require plaintiffs to
establish that a class exists, this is a common-sense
requirement and courts routinely require it. The
requirement that a class be clearly defined is
designed primarily to help the trial court manage the
class. It is not designed to be a particularly
stringent test, but plaintiffs must at least be able
to establish that the general outlines of the
membership of the class are determinable at the outset
of the litigation. In other words, the class must be
sufficiently definite that it is administratively
feasible for the court to determine whether a
particular individual is a member.
Pigford v. Glickman, 182 F.R.D. 341, 346 (D.D.C. 1998) (internal citations and punctuation omitted); see also Rodriguez v. U.S. Dep't of the Treasury, 131 F.R.D. 1, 7 (D.D.C. 1990). Defendant argues that plaintiffs have failed to provide a meaningful definition of the proposed class, and cites two cases in which district courts denied class certification because the proposed class definition was considered to be too amorphous. In Mueller v. CBS, 200 F.R.D. 227, 233-34 (W.D.Pa. 2001), the plaintiffs sought to certify a class consisting of all of the defendant's former employees over forty years of age who had been terminated in order "to interfere with their benefits." The court denied certification, explaining that it would be necessary to hold a series of individualized causation hearings to determine which of the employees had been fired in order to prevent them from receiving retirement benefits. In the second case, In re Copper Antitrust Litig., 196 F.R.D. 348, 350 (W.D.Wis. 2000), the district court denied certification to a proposed class consisting of "[a]ll copper or metals dealers . . . that purchased physical copper" during a specified time period "at prices expressly related to LME or Comex copper future prices." The court noted that the plaintiffs' proposed definition fell "far short of communicating to copper purchasers what they [would] need to know to decide whether they [were] in or outside the proposed class" because it failed to explain the meaning of the terms "copper or metals dealers," "physical copper," and "expressly related to." Id. at 358-60.
The Court must determine whether plaintiffs' proposed class definition sets forth general parameters that limit the scope of the class to such a degree that it is administratively feasible for this Court to determine whether a particular individual is a member of the class. Plaintiffs' second amended complaint defines the proposed class as
consisting of each person who, in the three years
preceding the filing of this action, up until the date
this case is terminated [(a)], has been, is, or will
be incarcerated at any Department of Corrections
facility, and [(b)] who was not released, or, in the
future, will not be released [(i)] by midnight on the
day on which the person is entitled to be released by
court order or [(ii)] the date on which the basis for
his or her detention has otherwise expired.
Pls.' Second Am. Compl. ¶ 8. In Pigford, this Court concluded that the plaintiffs had sufficiently outlined the boundaries of the class because "by looking at the class definition, counsel and putative class members can easily ascertain whether they are members of the class." Pigford, 182 F.R.D. at 346. Having reviewed plaintiffs' class definition, the Court is satisfied that an individual would be able to determine, simply by reading the definition, whether he or she was a member of the proposed class.
If, during the prescribed time period, he or she was incarcerated in a Department of Corrections facility, all that he or she would need to determine is whether he or she was not released by midnight on the date he or she was entitled to be released, either because a court order had been issued to that effect, or because the basis for his or her detention had expired. Unlike in Copper Antitrust, there are no terms in the definition that require further clarification. And unlike the proposed definition in Mueller, plaintiffs' definition would not require the Court to hold individualized hearings to decide whether a particular individual fell within the scope of the definition. Therefore, the Court concludes that plaintiffs have successfully demonstrated the existence of an ascertainable class.
B. Prerequisites of a Class Action under Rule 23(a)
1. Impracticability of Joinder
Rule 23(a)(1) provides that a class action may be maintained only if "the class is so numerous that joinder of all members is impracticable." "The numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations." Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330 (1980); see also Civic Ass'n of Deaf of New York City v. Giuliani, 915 F. Supp. 622, 632 (S.D.N.Y. 1996) (explaining that a "precise quantification of the class members is not necessary because the court may make `common sense assumptions' to support a finding of numerosity") (citation omitted). Generally speaking, courts have found that a proposed class consisting of at least forty members will satisfy the impracticability requirement. See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1993) (observing that "numerosity is presumed at a level of 40 members"); Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.), cert. denied, 479 U.S. 883 (1986) (explaining that "while there is no fixed numerosity rule, generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors") (internal punctuation omitted). The general rule is that a plaintiff need not provide the exact number of potential class members in order to satisfy this requirement. See, e.g., Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174, 176 (D.D.C. 1999) ("So long as there is a reasonable basis for the estimate provided, the numerosity requirement can be satisfied without precise numbers."); Pigford, 182 F.R.D. at 347 ("Mere conjecture, without more, is insufficient to establish numerosity, but plaintiffs do not have to provide an exact number of putative class members in order to satisfy the numerosity requirement."). Vargas v. Meese, 119 F.R.D. 291, 293 (D.D.C. 1987).
At present, there are six named plaintiffs in this action. Additionally, plaintiffs have alleged, upon information and belief, that at any particular time, up to 5-20% of the population in the Department of Corrections — a population of approximately 2700 — is being held later than their release date. However, the Court need not rely solely on plaintiffs' conjecture as to the number of persons who are being held later than their release date. In its supplemental opposition brief, defendant has provided a chart that it represents as "the most recent tabulation of `late releases' from the D.C. Jail, as determined by the Department of Corrections." Def.'s Supp. Opp. Br., Second Supp. Dec. of Steven Smith ¶ 2. The chart represents that, between May 2002 and January 2003, ninety-seven inmates were detained for 48 hours or more after their scheduled release date.*fn1 Even assuming that each of the named plaintiffs are included in this tally, defendant has provided evidence indicating that at least ninety-three persons fall within the definition of plaintiffs' proposed class.*fn2 The Court therefore concludes that the class proposed by plaintiffs is so numerous that it would be impracticable to join all of its members in a single action. Accordingly, the Court deems the impracticability requirement of Rule 23(a) to be satisfied.
Rule 23(a)(2) requires that there be "questions of law or fact common to the class." It is not necessary that every issue of law or fact be the same for each class member. Forbush v. J.C. Penney, Inc., 994 F.2d 1101, 1106 (5th Cir. 1993); Cox, 784 F.2d at 1557. Indeed, factual variations among the class members will not defeat the commonality requirement, so long as a single aspect or feature of the claim is common to all proposed class members. See Pendleton v. Schlesinger, 73 F.R.D. 506, 508 (D.D.C. 1977), aff'd, 628 F.2d 102 (D.C. Cir. 1980) ("In passing on commonality, it is not appropriate to examine the likeness or relation of the several claims of all members of the class and their representatives. The only proper inquiry is, as the language [of Rule 23(a)(2)] suggests, whether there is some aspect or feature of the claims which is common to all."); Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662, 690 (S.D.N.Y. 1996), aff'd, 126 F.3d 372 (2d Cir. 1997) ("Rule 23(a)(2) ...