The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
MEMORANDUM OPINION AND ORDER
This Memorandum Opinion and Order resolves pending motions for consolidation and class certification.
These four cases concern the events of September 27, 2002, when approximately 3000 to 5000 people joined in demonstrations in the District of Columbia protesting the policies of the World Bank, the International Monetary Fund, and the United States government. See, e.g., Chang Compl. ¶¶ 33-34. On that date, all named and individual plaintiffs in these actions were at or near a demonstration taking place in General John Pershing Park ("Pershing Park"), located on Pennsylvania Avenue N.W. between 14th and 15th Streets N.W., when police officers surrounded them, along with approximately 400 other individuals who were in the Park, and arrested them. Id. ¶¶ 12, 47-53. Plaintiffs allege that they were subsequently handcuffed and held on buses for up to 13 hours, and later detained at the Police Academy Gymnasium for periods ranging from 18 to 36 hours with one wrist cuffed to the opposite ankle. Id. ¶¶ 12, 47-61.
Plaintiffs in all cases assert First, Fourth, and Fourteenth Amendment claims against the District of Columbia, alleging interference with protest, assembly, and journalism activities protected by the First Amendment, as well as violations of their Fourth Amendment right to be free of unreasonable searches and seizures. Additionally, plaintiffs in Chang and Barham assert common law claims of false arrest and false imprisonment against the District of Columbia. Barham plaintiffs also present an Equal Protection challenge to the District's alleged policy of offering only a"post and forfeit" option to those arrested in political demonstrations when a"post and trial" option, by which a detainee secures release without forfeiting any trial rights, is customarily offered to those arrested for other minor offenses. Certain individual plaintiffs in Barham assert conversion and trespass to chattel claims against the District based on seizure of their property, including video equipment, bags, and bicycles, at the time of their arrest. Finally, the Chang and Barham actions also name federal law enforcement agencies as defendants, seeking injunctive relief precluding those agencies from utilizing or participating in the challenged tactics.
All four actions seek common relief from the District of Columbia: entry of a judgment declaring the Metropolitan Police Department's so-called"trap and arrest" policies and practices unlawful under the First and Fourth Amendments, entry of a permanent injunction prohibiting defendants from utilizing such tactics, an order sealing or expunging the arrest records of all individuals arrested in Pershing Park on September 27, 2002, and individual compensatory damages pursuant to 42 U.S.C. § 1983.
Two of the above-captioned cases were commenced as class actions in which the proposed class would include all persons arrested in Pershing Park on September 27, 2002. The first such action, Barham v. Ramsey, Civil Action No. 02-2253, asserts class claims against Secretary of the Interior Gale Norton in her official capacity, based on plaintiffs' allegation that federal law enforcement agencies actively participated in the challenged conduct. In addition, Barham raises claims against the Metropolitan Police Department ("MPD") and the District of Columbia, as well as against MPD Chief Charles H. Ramsey and District of Columbia Mayor Anthony A. Williams in both their individual and official capacities. The second putative class action, Abbate v. Ramsey, Civil Action No. 03-767, interposes class claims analogous to Barham plaintiffs' claims against the District of Columbia and Chief Ramsey in his individual capacity only, and seeks similar relief.
District defendants move to consolidate these two putative class actions on the grounds that both seek to assert class claims based on the same events and transactions, and the"core issues" raised by the Abbate action"plainly overlap" with some of class claims presented by the Barham plaintiffs. They further submit, citing to the Manual for Complex Litigation, that as a general rule, a court should not certify more than one class action where different proposed class representatives and their counsel press competing claims. See Federal Judicial Center, Manual for Complex Litigation at 219 (3d ed. 1995) ("Rarely should more than one [class action] be certified, although under appropriate circumstances subclasses may be considered."). District defendants contend that consolidation of these cases would serve the interests of judicial economy and reduce the litigation burden on defendants, and ask the Court to direct counsel for plaintiffs in Barham and Abbate to cooperate in the filing of a single, consolidated amended complaint embracing the class allegations common to both cases.
Consolidation is provided for by Fed. R. Civ. P. 42(a), which states:
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay."The decision whether to consolidate cases under Rule 42(a) is within the broad discretion of the trial court." Stewart v. O'Neill, 225 F. Supp.2d 16, 20 (D.D.C. 2002). Generally speaking, when exercising their discretion with respect to consolidation of actions, courts weigh considerations of convenience and economy against considerations of confusion and prejudice. Id. Consolidation may increase judicial efficiency by reducing presentation of duplicative proof at trial, eliminating the need for more than one judge to familiarize themselves with the issues presented, and reducing excess costs to all parties and the government. Id. Consolidation is particularly appropriate where, as here,"two cases each involve review of the same underlying decision." See Biochem Pharma, Inc. v. Emory University, 148 F. Supp.2d 11, 12 (D.D.C. 2001).
Plaintiffs in both class actions oppose the motion for consolidation, although Barham plaintiffs do not oppose coordination of pre-trial and discovery matters in the two cases. Predictably, both groups of putative class representatives submit that it would be more expeditious to simply certify their class and deny the motion for class certification in the other case than to consolidate the two proposed class actions. Barham plaintiffs argue that their action should be certified as a class action because it was the first filed, tolling any applicable statutes of limitation with respect to District defendants two months earlier than the Abbate action. Conversely, the Abbate case was filed nearly two months after Barham, wholly fails to toll the statute with respect to federal defendants, and asserts more limited claims against only the District of Columbia and its Chief of Police. Barham plaintiffs therefore contend that, at best, commencement of the Abbate action reflects a desire on the part of the five named plaintiffs in that case to opt-out of the broader claims presented by the Barham class.
Abbate plaintiffs respond by conceding that no more than one class action should be certified based on the events in question, but take issue with defendants' recommendation that they be required to"negotiate" with plaintiffs in Barham in order to file a single, consolidated class complaint. According to Abbate plaintiffs,"[t]his approach would severely prejudice plaintiffs' ability to represent the class in the manner that they think is best, as reflected in their complaint." They further state that it is"unnecessary and prejudicial to plaintiffs to require them at this stage to abandon their complaint and to negotiate a new one with the Barham plaintiffs," suggesting instead that the Court should simply decide which class should be recognized based on which class action best represents the interests of the class to be certified.
Moreover, Abbate plaintiffs maintain that their action best serves the common interests of the class because it advances class members' interest in obtaining prompt and full compensation from and injunctive relief against the District and Chief Ramsey, the parties most directly responsible for their injuries. They further allege that, by adding federal defendants to their class action, Barham plaintiffs have assumed an additional burden of proof, which will lead to significant delays in the proceedings, without increasing or enhancing the compensation or injunctive relief available. In support of this contention, Abbate plaintiffs claim that any injunctive relief obtained against the District would necessarily reach any federal agencies or officers acting in concert with the MPD, thus effectively barring any law enforcement agencies operating within the District from engaging in the challenged practices. They further argue that any benefit to be gained by the Barham plaintiffs' assertion of Bivens claims against federal officers and FBI agents is minimal, and would not inure to the entire class. Abbate plaintiffs therefore contend that Barham plaintiffs' pursuit of additional federal defendants actually harms the interests of absent class members in obtaining full and prompt relief. Finally, they submit that certifying the Abbate class action will not prejudice those plaintiffs who wish to proceed against the federal government or officers, as they would remain free to do so either in a separate class action or individually, and the statute of limitations for such an action would remain tolled by virtue of the filing of the Barham action.
Federal defendants also oppose the motion to consolidate, arguing that, at least as to them, the cases raise no common issues of fact or law, and consolidation would thus lead only to confusion with respect to which claims are asserted against federal defendants as opposed to District defendants. In the alternative, they ask that the Court first resolve their pending potentially dispositive motion before ruling on District defendants' motion to consolidate.*fn1
Notwithstanding the concerns raised by the parties, the Court orally granted District defendants' motion to consolidate the Barham and Abbate actions at the conclusion of the hearing on pending motions held on September 11, 2003, with one significant amendment -- the Court directed plaintiffs in Abbate and Barham to file a single consolidated complaint joining all of the claims raised in both cases. The Court believed that this approach, rather than selecting from among the two competing class actions, would ultimately best serve the interests of absent proposed class members in vindicating their constitutional and common law rights by enabling them to assert the broadest range of claims against all alleged perpetrators of the harm claimed, while benefitting from the wealth of talent brought by plaintiffs' counsel in both cases. Furthermore, during oral argument on the pending motions, plaintiffs' counsel in the Abbate case dispelled any concerns regarding potential conflicts among the interests of members of a consolidated class by assuring the Court and parties that Abbate plaintiffs had no intention of contesting federal defendants' liability for their injuries, but rather had simply made a strategic decision not to pursue claims against those defendants. The Court remains persuaded that consolidation would not result in any undue delay in resolving claims against the District. Abbate plaintiffs were unable to offer any persuasive reason why the District claims would proceed any more quickly than those against the federal government, given that the issues raised by the claims against the District of Columbia are no less complex than those presented by the federal claims. Furthermore, the Court concluded that no one would be prejudiced through consolidation, as any plaintiff who absolutely wished to pursue the strategic approach vigorously advocated by Abbate counsel remained free to opt out of the class action and pursue claims against the District on an individual basis.
Far from rendering this litigation more unwieldy, consolidation would increase efficiency by reducing the possibility of duplicative discovery and by achieving judicial economy in the adjudication of potentially dispositive motions involving similar material facts, a single group of actors present during the events at issue, and common questions of law. Furthermore, in an effort to address plaintiffs' concerns that undue delay will result from consolidation of the two actions, an accelerated briefing schedule was put in place to ensure that the litigation proceeds apace.
Notwithstanding the Court's direction that counsel for plaintiffs in both cases make every effort to reach an agreement as to how to proceed with a consolidated class action that would best serve the interests of named plaintiffs as well as absent class members, it appears that the Abbate plaintiffs and their counsel remain unyielding in their approach. By letters dated September 15, 2003, plaintiffs' counsel in both Barham and Abbate advised the Court that they were unable to reach an agreement with respect to a consolidated class action. Based on these letters, it appears that, rather than make a good faith effort to negotiate a way forward, Abbate plaintiffs merely persevered in their opposition to consolidation. While such inflexibility is unfortunate, in light of the parties' apparently entrenched positions, the Court will reconsider its decision to consolidate the two proposed class actions. Instead, it will pursue the alternative approach suggested by both Barham and Abbate plaintiffs, and provisionally certify the Barham case as a class action and treat Abbate plaintiffs as though they have opted out of the class and have elected to proceed individually against the District with more narrow claims. Forced to choose among the two competing class actions, the Court has selected the Barham action on the grounds that it best serves the interests of absent class members to certify the class asserting the broadest claims against the greatest number of allegedly responsible parties.
It appears clear based on the record currently before the Court, and particularly the revelations contained in recently disclosed reports summarizing internal MPD investigations into the events of September 27, 2002,*fn2 that certification of a class of persons arrested in Pershing Park on that date is appropriate under these circumstances.*fn3
In support of their effort to proceed as a class, Barham plaintiffs allege that approximately 400 persons were subject to mass arrest in Pershing Park on September 27, 2002, and therefore the class is too numerous for joinder. They further submit that their First, Fourth, and Fourteenth Amendment claims, as well as their common law false arrest and false imprisonment claims, present common questions of law and fact. Barham plaintiffs argue that, by arresting all persons found in the park on the morning in question without giving a lawful order to disperse or allowing class members to obey any such order, defendants engaged in a singular police action on grounds generally applicable to the class. As a result, common questions of law and fact bearing on the alleged absence of probable cause justifying the ensuing arrests and detentions are the predominant questions presented. Moreover, all plaintiffs make similar allegations with respect to detention conditions, claiming that they suffered significant pain from excessively tight handcuffs, were held on buses for hours with their hands in cuffs, were taken to the gymnasium of the Institute for Police Science and handcuffed with one wrist attached to the opposing ankle for up to 36 hours, photographed, questioned by FBI agents, and deliberately misinformed of their rights. Plaintiffs therefore contend that the circumstances of arrest experienced by all class members were virtually identical, even though some individuals may have suffered additional injuries, such as deprivation of access to medication. Plaintiffs further maintain that these differences do not predominate, and can be addressed at the damages stage."It is, of course, well established that a principal purpose of the class-action mechanism is to advance the efficiency and economy of multi-party litigation." McCarthy v. Kleindienst, 741 F.2d 1406, 1410 (D.C. Cir. 1984). While certification of a class action pursuant to Fed. R. Civ. P. 23 is"an exception to the usual rule ...