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Does v. District of Columbia

October 5, 2006

JANE DOES I THROUGH III, PLAINTIFF,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs are three mentally retarded adult women who receive habilitation services from the District of Columbia through the Department of Human Services and the Mental Retardation and Developmental Disabilities Administration ("MRDDA"). This court previously certified this matter as a class action for purposes of resolving plaintiffs' and the class members' claims for injunctive and declaratory relief. Plaintiffs now move for class certification of their damage claims, pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. Upon consideration of the motion, the opposition thereto, and the record of the case, the court concludes that the motion must be denied.

I. BACKGROUND

Since at least 1978, it was the "custom" of the MRDDA to sign consent forms for elective surgery on its wards without having been appointed guardian and without consulting with the person having surgery. In April 1990, this longstanding policy was put in writing. Although the written policy has been amended on numerous occasions and has evolved over time, its salient aspects remained the same: MRDDA continued to be authorized to provide consent for elective medical procedures on its mentally retarded customers without making any subjective inquiry into those customers' wishes or values, and without attempting to ascertain what those customers would do if competent.

By their next friends, plaintiffs brought this action under 42 U.S.C. § 1983, asserting that their substantive and procedural due process rights secured by the Fifth and Fourteenth Amendments have been violated by the District's unlawful practice of authorizing elective surgical procedures on retarded persons in its care*fn1 without adequately attempting to ascertain their wishes or consult with family members. Plaintiffs asserted these claims on their own behalf as well as for a putative class of all mentally retarded persons who have received, or will receive, habilitation services from the District of Columbia and for whom District officials have consented to elective surgical procedures.*fn2

On November 21, 2005, the court granted plaintiff's motion for class certification in part, certifying a class for the purpose of determining plaintiffs' and the class members' claims for declaratory and injunctive relief. At the same time, the court entered partial summary judgment against the District and permanently enjoined the District from consenting to elective surgical procedures in violation of the substituted consent standard. The court, however, declined to certify the class for the purpose of determining plaintiffs' and the class members' claims for monetary relief, instead ordering the parties to brief the issue of the proper treatment of such claims. Having reviewed the parties submissions on this issue, the court concludes that class certification of the damage claims in this matter must be denied.

II. ANALYSIS

As the party moving for class certification, plaintiffs bear the burden of establishing that a class exists, that all four prerequisites of Rule 23(a) of the Federal Rules of Civil Procedure have been satisfied, and that the class falls within at least one of the three categories enumerated in Rule 23(b). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997); Hartman v. Duffey, 19 F.3d 1459, 1468 (D.C. Cir. 1994); In re Vitamins Antitrust Litig., 209 F.R.D. 251, 256 (D.D.C. 2002). A district court exercises broad discretion in deciding whether plaintiffs have carried their burden. Hartman, 19 F.3d at 1471 (citing Bermudez v. United States Dep't of Agric., 490 F.2d 718, 725 (D.C. Cir. 1973)). While courts may not conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177--78 (1974), the court may consider matters beyond the pleadings to ascertain whether the asserted claims or defenses are susceptible of resolution on a class-wide basis. McCarthy v. Kleindienst, 741 F.2d 1406, 1413 n.8 (D.C. Cir. 1984).

1. Rule 23(a) Requirements

The four threshold requirements of Rule 23(a) applicable to all class actions are (1) that the class be so large that joinder of all members is impracticable; (2) that there are questions of law or fact common to the class; (3) that the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) that the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). The court has previously determined that plaintiffs had satisfied these four requirements in the context of certifying a class for injunctive and declaratory relief. Mem. Op. & Order (Nov. 21, 2005) at 30. While the determination of whether the Rule23(a) requirements have been met for purposes of certify a class for damage purposes is slightly different than a determination of whether such certification is appropriate for injunctive and declaratory relief, the court nonetheless believes that plaintiffs have satisfied their burden, primarily for the reasons stated in court's previous memorandum opinion. Notably, the District does not dispute that Rule 23(a)'s requirements are satisfied.

3. Rule 23(b) Requirements

In addition to satisfying the four prerequisites stated in Rule 23(a), plaintiffs must also establish that the action falls within one of three categories of class action suits described in Rule 23(b). Having certified the class pursuant to Rule 23(b)(2) for equitable and declaratory relief, plaintiffs now seek to certify the class pursuant to Rule 23(b)(3) for their damage claims. Such certifications are referred to as "hybrid certifications." Eubanks v. Billington, 110 F.3d 87, 96 (D.C. Cir. 1997); Bynum v. Dist. of Columbia, 217 F.R.D. 43, 48--50 (D.D.C. 2003). In Eubanks, the D.C. Circuit recognized that "the assumption of cohesiveness for purposes of injunctive relief that justifies certification as a (b)(2) class [may be] unjustified as to claims that individual class members may have for monetary damages." 110 F.3d at 96. In such circumstances, a district court may adopt a hybrid approach and certify "a (b)(2) class as to the claims for declaratory or injunctive relief, and a (b)(3) class as to the claims for monetary relief, effectively granting (b)(3) protections including the right to opt out to class members at the monetary relief stage." Id.; see also Thomas v. Albright, 139 F.3d 227 (D.C. Cir. 1998).*fn3

In order to be certified under Rule 23(b)(3), plaintiffs bear the burden of demonstrating that common issues "predominate over any questions affecting only individual members" and that a class action would be "superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3). The advisory committee notes for Rule 23(b)(3) state that "[s]ubdivision (b)(3) encompasses those cases in which a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly ...


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