United States District Court, District of Columbia
MEMORANDUM OPINION, DENYING DEFENDANTS' MOTION TO
DECERTIFY THE CLASS AND DENYING DEFENDANTS' MOTION TO
STAY DISCOVERY, RE DOCUMENTS NOS. 72, 74
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
February 12, 2018, this Court certified a class of residents
of the Brookland Manor apartment complex alleged to be at
risk of harm by Defendants' planned redevelopment of the
complex, which Plaintiffs argue will have a disparate impact
on residents based on their familial status in violation of
the Fair Housing Act (“FHA”), 42 U.S.C.
§§ 3601-19, and D.C. Human Rights Act
(“DCHRA”), D.C. Code §§ 2-1401 to
2-1404. Defendants now move for decertification of the class,
arguing that new developments have rendered named plaintiff
Adriann Borum an inadequate class representative. The Court
agrees that, in light of her changed circumstances, Borum can
no longer adequately represent the class. However, the Court
finds that decertification is an inappropriate remedy when
Plaintiffs have the ability to find an adequate substitute
class representative for Borum. The Court accordingly denies
the motion to decertify the class and orders Plaintiffs to
put forward a substitute class representative within 30 days.
The Court also denies as moot Defendants' motion to stay
or continue discovery.
FACTUAL AND PROCEDURAL BACKGROUND
Initial Dispute and Class
certified class of plaintiffs in this case are residents of
Brookland Manor, an affordable housing complex in the
Brentwood neighborhood of Washington, D.C. See Borum v.
Brentwood Village, LLC, 324 F.R.D. 1, 20 (D.D.C. 2018).
Defendants Brentwood Associates, L.P., Mid-City Financial
Corporation, and Edgewood Management Corporation have put
together a redevelopment plan for the complex that reduces
the number of three-bedroom apartments and fully eliminates
four- and five-bedroom apartments. See Id. at 6-7.
Plaintiffs are residents of three, four, and five-bedroom
apartments at Brookland Manor who are at direct risk of being
displaced from a three, four, or five-bedroom apartment as a
result of the proposed redevelopment plan. See Id.
at 20. Adriann Borum, the class representative, resides in a
four-bedroom apartment at Brookland Manor with her five
children, see Id. at 6, including, inter
alia, her adult children Donta and Trayvon, see
Defs.' Mem. Supp. Mot. Decertify Class at 2, ECF No. 72.
and original co-plaintiffs Loretta Holloman and One DC filed
suit on August 25, 2016, bringing claims against Defendants
for disparate impact discrimination and discriminatory
statements in violation of the FHA and the DCHRA. Compl., ECF
No. 2. Holloman voluntarily dismissed her claims on November
27, 2017. Order Granting Unopposed Mot. for Voluntary
Dismissal, ECF No. 56. After Borum and One DC filed a motion
for class certification, the Court granted the motion in part
and certified a class of plaintiffs on February 12, 2018.
See Borum, 324 F.R.D. at 20. In particular,
the Court found that Borum was an adequate representative
despite Defendants' contention that there was
disagreement amongst putative class members regarding whether
the development should go forward, and the Court rejected
Defendants' argument that Borum's interests
conflicted with those of the class. See Id. at
Recent Developments Relating to Borum
August 10, 2018, Defendants filed a motion to decertify the
class. Defs.' Mot. Decertify Class, ECF No. 72.
Defendants represent that members of Borum's household
have engaged in three instances of criminal activity over the
prior ten months, that Borum was issued a notice to vacate
her residence at Brookland Manor and will soon be facing
eviction, and that as a result she no longer adequately
represents the interests of the class. See
Defs.' Mem. Supp. at 1. Both parties appear to be in
agreement as to the facts underlying each alleged instance of
Trayvon Borum was arrested for reckless driving, leaving
after colliding, and unlawful possession of ammunition on
November 26, 2017. See Nov. 26, 2017 Police Report,
Defs.' Mot. Decertify Class Ex. B, ECF No. 72-3.
According to the police report, the incident began when
police officers investigated reports of gunshots being fired
in the 500-600 block of Edgewood Terrace and a witness
identified a maroon car leaving the area at high speed.
See Id. When a police vehicle attempted to stop the
car, it crashed into another police cruiser and four men fled
the scene. See Id. Trayvon Borum was subsequently
stopped by police and admitted to being the driver of the
maroon car. See Id. In the car's glove
compartment, police officers located 28 rounds of ammunition.
See Id. Trayvon Borum pled guilty to leaving after
colliding and unlawful possession of unregistered ammunition
on January 9, 2018. See Jan. 9, 2018 Sentence,
Defs.' Mot. Decertify Class Ex. C, ECF No. 72-4; Docket,
United States v. Borum, 2017 CTF 020138 (D.C. Sup.
Trayvon Borum was arrested for possession of a controlled
substance and drug paraphernalia on March 20, 2018.
See March 20, 2018 Police Report, Defs.' Mot.
Decertify Class Ex. D, ECF No. 72-5. According to the police
report, the police officers who approached a parked vehicle
identified, in plain view, three bags containing a
“green leafy substance” that was later identified
as marijuana, a digital scale, and a box containing clear
sandwich bags. Id. Two days after corresponding
misdemeanor charges were filed in D.C. Superior Court, the
charges were dismissed nolle prosequi on March 23,
2018. See Pls.' Mem. Opp'n Defs.' Mot.
Decertify Class at 4, ECF No. 75; Docket, United States
v. Borum, 2018 CMD 004602 (D.C. Sup. Ct.).
Donta Borum was arrested for assault on a police officer on
July 5, 2018, following an altercation with police on
Brookland Manor grounds. See July 5, 2018 Police
Report at 2, Defs.' Mot. Decertify Class Ex. A, ECF No.
72-2. The charge was also dismissed nolle prosequi
on August 14, 2018. See Docket, United States v.
Borum, 2018 CMD 010005 (D.C. Sup. Ct.).
29, 2018, Edgewood Management served Borum with a notice to
quit and vacate, for violation of the terms of her lease that
prohibit engaging in drug-related criminal activity on or
near the complex, engaging in criminal activity that
threatens the health, safety, or right to peaceful enjoyment
of other residents or of persons residing in the immediate
vicinity of the complex, and engaging in criminal activity
generally. See Defs.' Mem. Supp. at 5; Notice to
Quit and Vacate, Young Decl. Ex. 1, ECF No. 71-1. On August
31, 2018, Edgewood initiated eviction proceedings against
Borum and her family in D.C. Superior Court. See
Docket, Edgewood Mgmt. Corp., et al. v. Borum, 2018
LTB 020834 (D.C. Sup. Ct.).
Defendants filed their motion to decertify on August 10,
2018, Defendants also filed a motion to stay or continue
discovery pending the Court's determination of the motion
to decertify on August 24, 2018. See Defs.' Mot.
Stay Discovery, ECF No. 74. The same day, Plaintiffs filed
their memorandum in opposition to the motion to decertify.
See Pls.' Mem. Opp'n. Defendants filed their
reply in further support of the motion on August 31, 2018.
See Defs.' Reply, ECF No. 77. The motion to
decertify is now ripe for review.
a class is initially certified, Rule 23 expressly grants
courts the discretion to revisit the propriety of continued
class certification in later stages of litigation.”
DL v. District of Columbia, 312 F.R.D. 1, 6 (D.D.C.
2015) (citing Fed.R.Civ.P. 23(c)(1)(C)). The D.C. Circuit has
emphasized that “class certification problems are
constantly subject to reconsideration as the facts
develop.” Reynolds v. Sheet Metal Workers, Local
102, 702 F.2d 221, 226 (D.C. Cir. 1981). And “[a]s
the proponent of continued class certification, Plaintiffs
[retain] the burden of establishing that [all] of the
requirements for class certification ... are met.”
Lightfoot v. District of Columbia, 246 F.R.D. 326,
332 (D.D.C. 2007) (citing Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 614 (1997)).
move to decertify the class because the eviction proceedings
pending against Borum render her an inadequate class
representative. Defendants argue that Borum is likely to be
evicted and that she cannot adequately represent the class
because she no longer has a long-term stake in the
redevelopment of Brookland Manor. See Defs.'
Mem. Supp. at 10. Plaintiffs retort that any potential
conflict is hypothetical, that Borum's eviction is
unlikely, and that her interests remain consistent with those
of the class. See Pls.' Mem. Opp'n at 6-7.
Plaintiffs also argue that decertification would be an
inappropriate remedy even if Borum was an inadequate class
representative. See Id. at 5-6. In their reply,
Defendants point out that the pending eviction proceedings
create a disqualifying conflict for Borum regardless of the
outcome of those proceedings. See Defs.' Reply
at 6, 9.
Court first reviews whether Borum remains an adequate class
representative, and then whether decertification is an
appropriate remedy. While the Court finds that Borum's
interests conflict with the class and render her an
inadequate representative, it finds that substitution is the