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Borum v. Brentwood Village, LLC

United States District Court, District of Columbia

February 12, 2018

ADRIANN BORUM, et al., Plaintiffs,
v.
BRENTWOOD VILLAGE, LLC, et al., Defendants.

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS United States District Judge

         Granting in Part and Denying in Part Plaintiffs' Motion for Class Certification; Granting Plaintiffs' Motion for the Appointment of Class Counsel

         I. INTRODUCTION

         Plaintiff Adriann Borum seeks to represent a putative class of residents of her apartment complex, Brookland Manor, whom she alleges are at risk of being displaced should Defendants proceed with their plans to redevelop the complex, or who have already been displaced in anticipation of the redevelopment.[1] The planned redevelopment will eliminate four- and five-bedroom apartments in the complex, and will reduce the number of three-bedroom apartments as well. This policy, Ms. Borum claims, will have a disparate impact on hundreds of residents based on their familial status in violation of the Fair Housing Act (“FHA”) and the D.C. Human Rights Act (“DCHRA”). Additionally, Ms. Borum claims that Defendants have made discriminatory statements based on familial status in violation of the FHA and the DCHRA. Therefore, she has moved to certify a class of residents whom she believes have been harmed or are at risk of being harmed by the proposed redevelopment and activities surrounding it, and for the appointment of her lawyers as counsel for that class. Pls.' Mem. P. & A. Supp. Mot. Class Cert. & Appointment Class Counsel (“Pls.' Mem.”), ECF No. 43-1. For the reasons set forth below, the Court grants in part and denies in part her motion for class certification, and grants her motion for the appointment of class counsel.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         Defendants in this action-Brentwood Associates, L.P.; Mid-City Financial Corporation; and Edgewood Management Corporation-plan to redevelop Brookland Manor, an affordable housing complex in the Brentwood neighborhood of Washington, D.C. Brookland Manor currently contains 535 units, which range in size from one- to five-bedroom apartments. See Pls.' Mot. Class Cert. & Appointment Class Counsel (“Pls.' Mot.”), Ex. 12 at 1-2, ECF No. 43-17. Once Brookland Manor has been transformed into the new Brentwood Village development, the complex will contain 2, 235 rental apartments and for-sale homes. Id. at 1. While today Brookland Manor contains 75 three-bedroom apartments, 113 four-bedroom apartments, and 21 five-bedroom apartments, once Defendants have completed the redevelopment, Brentwood Village will have zero four- and five-bedroom apartments, and only 64 three-bedroom apartments. See Pls.' Mot., Ex. 4 at 5-6, ECF No. 43-9. It is this planned alteration in the composition of the complex that Ms. Borum challenges. As a resident of a four-bedroom apartment, which she occupies with her five children (two minor and three adult), she fears that once the redevelopment takes place, she will be, at best, stuck competing with 117 other families[2] for 64 three-bedroom units, or at worst, displaced altogether. Pls.' Mem. at 4. Additionally, she fears that even if she were able to procure a three-bedroom apartment, it would be too small for her family. See Decl. Adriann Borum (“Borum Decl.”) ¶ 8-10, Pls.' Mot., Ex. 2, ECF No. 43-7.

         Defendants began the process of seeking approval for this redevelopment in October 2014, when they submitted their application for a First-Stage planned unit development (“PUD”) approval. See Zoning Case Records, Case No. 14-18, available at https://app.dcoz.dc.gov/Content/Search/ViewCaseReport.aspx?caseid=14-18. The application was approved in 2015. Id. Defendants filed their application for Second-Stage PUD approval in September 2016, one month after Ms. Borum had filed this action. That application is still pending. See Zoning Case Records, Case No. 14-18A, available at https://app.dcoz.dc.gov/Content/Search/ViewCaseReport.aspx?caseid=14-18A. Once that application has been approved, Defendants will be able to begin redeveloping the property. See generally 11 D.C. Mun. Regs. § 2408.1; see also Pls.' Mem. P. & A. Supp. Mot. Prelim. Inj. (“Pls.' Mot. Prelim. Inj.”), ECF No. 4; Decl. William Merrifield ¶ 9, ECF No. 4-3.

         Along with her complaint, Ms. Borum had filed a motion for a preliminary injunction asking the Court to bar “Defendants from filing their second-stage PUD application with the Zoning Commission.” Pls.' Mot. Prelim. Inj. at 15. Since Defendants filed their Second-Stage application before the Court ruled on Ms. Borum's motion for a preliminary injunction, she amended the relief she sought in her reply brief and asked the Court to “preliminarily enjoin Defendants from displacing families from their homes during the adjudication of these families' fair housing rights in this action.” Pls.' Reply at 3, ECF No. 20.

         In response, Defendants filed a motion to dismiss on several grounds: lack of exhaustion of administrative remedies; lack of jurisdiction under the Rooker-Feldman doctrine; the Younger abstention doctrine; ONE DC's lack of standing; and failure to state a claim. See Defs.' Mem. in Supp. Mot. Dismiss, ECF No. 16. The Court denied both motions, see Borum v. Brentwood Village, LLC, 218 F.Supp.3d 1 (D.D.C. 2016), and ordered the commencement of “limited discovery for the purpose of exchanging information related to the demographics of Brookland Manor residents as necessary to adjudicate a motion for class certification.” Scheduling Order, ECF No. 34.

         With the materials from that discovery in hand, Ms. Borum has now moved for certification of the following hybrid class under Rules 23(b)(2) and (b)(3):

All households who reside or have resided at Brookland Manor in a three-, four-, or five-bedroom unit with one or more minor child, and (i) have been displaced from a three-, four-, or five-bedroom unit at Brookland Manor since October 1, 2014 (the date that Defendants proposed their First Stage PUD to the Zoning Commission), or (ii) are at risk of being displaced from a three-, four-, or five-bedroom unit at Brookland Manor.

Pls.' Mot. at 1, ECF No. 43. She also moved for the appointment of her legal team as class counsel. Id. at 2. For the reasons set forth below, Ms. Borum's motion for class certification is granted in part and denied in part, and her motion for the appointment of class counsel is granted.

         III. LEGAL STANDARDS

         “A district court exercises broad discretion in deciding whether to permit a case to proceed as a class action.” Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994). However, “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Instead, a plaintiff “must affirmatively demonstrate [her] compliance with the Rule-that is, [she] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. “Frequently that ‘rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped.” Wal-Mart, 564 U.S. at 351. However, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Retirement Plans & Tr. Funds, 568 U.S. 455, 466 (2013).

         When appropriate, district courts may redefine classes or subclasses sua sponte prior to certification. See Rule 23(c)(5); In re General Motors Corp. Engine Interchange Litigation, 594 F.2d 1106, 1129 n.38 (7th Cir.), cert. denied sub nom. General Motors Corp. v. Oswald, 444 U.S. 870 (1979); Santillan v. Gonzalez, 388 F.Supp.2d 1065, 1072 (N.D. Cal. 2005); Am. Fin. Sys. Inc. v. Harlow, 65 F.R.D. 94, 107 (D. Md. 1974). Because it is the plaintiff, and not the court, who bears the burden of fashioning appropriate class definitions and demonstrating that the requirements of Rule 23 are met for each, it is left to the court's discretion to choose whether to intervene in this way. See U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 408 (1980). Subclasses must also satisfy all of Rule 23's requirements in order to be certified. See D.L. v. District of Columbia, 713 F.3d 120, 129 (D.C. Cir. 2013); see also Bynum v. District of Columbia, 214 F.R.D. 27, 41 (D.D.C. 2003).

         IV. ANALYSIS

         Ms. Borum has moved for certification of the following hybrid class under Rules 23(b)(2) and (b)(3):

All households who reside or have resided at Brookland Manor in a three-, four-, or five-bedroom unit with one or more minor child, and (i) have been displaced from a three-, four-, or five-bedroom unit at Brookland Manor since October 1, 2014 (the date that Defendants proposed their First Stage PUD to the Zoning Commission), or (ii) are at risk of being displaced from a three-, four-, or five-bedroom unit at Brookland Manor.

Pls.' Mot. at 1. For the reasons set forth below, the Court grants certification of the following class under Rule 23(b):

All individuals who reside at Brookland Manor in a three-, four-, or five-bedroom unit with one or more minor child, and are at risk of being displaced from a three-, four-, or five-bedroom unit at Brookland Manor as a direct result of the proposed redevelopment.

         A. Rule 23(a) Requirements

         Rule 23(a) contains four requirements for the certification of any class. It provides that “members of a class may sue or be sued as representative parties on behalf of all members 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 protect the interests of the class.” Fed.R.Civ.P. 23(a). These requirements are often referred to as “numerosity, ” “commonality, ” “typicality, ” and “adequacy of representation.”

         Ms. Borum contends that she has satisfied each of Rule 23(a)'s four prerequisites for her entire proposed class, and Defendants claim that she has satisfied none. As explained below, the Court finds that Ms. Borum has not satisfied the four prerequisites for the entire class she proposes, and therefore, her entire class cannot be certified. But once her original class definition has been divided into two subclasses, Ms. Borum does satisfy each of the four prerequisites for the subclass of individuals who “are at risk of being displaced from a three-, four-, or five-bedroom unit at Brookland Manor.” However, she has not yet satisfied the prerequisites for the subclass of individuals who “have been displaced from a three-, four-, or five-bedroom unit at Brookland Manor since October 1, 2014 (the date that Defendants proposed their First Stage PUD to the Zoning Commission).” And as explained further below, this subdivision is appropriate because it will allow members of the class that the Court is already able to determine satisfies the Rule 23(a) prerequisites to proceed to the next stage of this litigation without undue delay. See Yaffe v. Powers, 454 F.2d 1362, 1367 (1st Cir. 1972) (“[U]nless a claim is patently frivolous, [a certifying] court should ask itself: assuming there are important rights at stake, what is the most sensible approach to the class determination issue which can enable the litigation to go forward with maximum effectiveness from the viewpoint of judicial administration?”)

         1. Families displaced between October 1, 2014 and the conclusion of this litigation

         Ms. Borum has moved to include in her class those “who have resided at Brookland Manor in a three-, four-, or five- bedroom unit with one of more minor child and . . . have been displaced from [those apartments] since October 1, 2014.” Pls.' Mot. at 1. For those individuals she seeks damages for “monetary costs related to moving services or apartment brokerage fees and increased transportation costs to school and work.” Compl. ¶ 123. She also seeks an injunction for them, so that they “will have a future opportunity to reside at Brookland Manor or the redevelopment property in a three-, four-, and five-bedroom unit.” Id. For the other group of individuals in her proposed class, those who “are at risk of being displaced from a three-, four-, or five-bedroom unit at Brookland Manor, ” she only seeks an injunction that would eradicate the disparate impact she alleges the redevelopment plan will have on minors and their guardians. Pls.' Reply at 22, ECF No. 52.

         “The underlying theme [of class certification] is flexibility; different cases call for different approaches.” Lamphere v. Brown Univ., 553 F.2d 714, 719 (1st Cir. 1977). And while the decision whether and how to certify a class is left to the district court, in some instances “failure to limit overbroad cases by the use of appropriate subclasses may be an abuse of discretion.” Marcello v. Regan, 574 F.Supp. 586, 591-92 (D.R.I. 1983) (citing Geraghty v. U.S. Parole Comm'n, 579 F.2d 238, 253 (3d Cir. 1978), vacated on other grounds, 445 U.S. 388 (1980)); see also Fink v. Nat'l Sav. & Tr. Co., 772 F.2d 951, 960-61 (D.C. Cir. 1985) (“the reviewing court may require the district court to consider on the record the possibility of certifying subclasses”).

         Here, it is appropriate to consider those residents who have already been displaced or will displaced before the conclusion of this litigation as a separate subclass because without this separation, the class Ms. Borum has proposed would be overbroad and ineligible for certification. First, Ms. Borum has moved to include in the class those individuals who have been displaced since October 1, 2014, without specifying whether individuals included in that group need to have been displaced because of the redevelopment in order to be included. Therefore, it is impossible to tell from her proposed definition whether those individuals have any claims in common, as required by Rule 23(a)(2). See Wal-Mart, 564 U.S. at 350 (“Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.'” (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). Second, at this point, none of the large apartments on which putative class members rely to house their families have been eliminated. Therefore, the cause of displacement for any of these putative class members will not be the mere elimination of large apartments, which is the foundational cause of the other class members' claims. See Hartman v. Duffey, 19 F.3d 1459, 1472 (D.C. Cir. 1994) (“[T]here is more to a showing of commonality than a demonstration that class plaintiffs suffered discrimination on the basis of membership in a particular group . . . plaintiffs must make a significant showing to permit the court to infer that members of the class suffered from a common policy of discrimination that pervaded all of the [defendant's] challenged [] decisions.”). Third, Ms. Borum seeks damages only for displaced individuals, in order to reimburse them for the costs of their displacement. Those individuals will therefore have different ...


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