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Borum v. Brentwood Associates, L.P.

United States District Court, District of Columbia

January 7, 2019

ADRIANN BORUM, et al., Plaintiffs,
BRENTWOOD ASSOCIATES, L.P., et. al, Defendants.




         On 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.


         A. Initial Dispute and Class Certification[1]

         The 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.

         Borum 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 17-19.

         B. Recent Developments Relating to Borum

         On 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 criminal activity.

         First, 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. Ct.).[2]

         Second, 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.).

         Finally, 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.).

         On July 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.).

         After 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.[3]


         “After 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)).

         IV. ANALYSIS

         Defendants 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.

         The 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 ...

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