United States District Court, District of Columbia
MEMORANDUM OPINION RE DOCUMENTS NOS. 117, 123,
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
in Part and Denying in Part Plaintiffs' Motion to
Substitute Class Representative; Granting in
Part and Denying in Part Defendants'
Cross-Motion to Decertify Class; Granting
Plaintiffs' Motion for Leave to File Under Seal
latest development in this contentious class action,
Plaintiffs move to substitute the current class
representative, which the Court earlier found inadequate,
while Defendants challenge the proposed substitute
representative and cross-move for decertification. The Court
ultimately agrees with both parties in part, finding that the
proposed substitute representative brings claims typical of
the class on only some of Plaintiffs' claims. The Court
accordingly grants in part and denies in part both motions.
Court originally certified a class of plaintiffs bringing
claims for violations 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, in February 2018. Plaintiffs,
residents of the Brookland Manor apartment complex and
community organization One D.C., alleged that the planned
redevelopment of the complex by Defendants would have a
disparate impact on residents based on their familial status.
Plaintiffs also alleged that some of Defendants'
statements made in connection with the redevelopment were
discriminatory statements under the FHA and DCHRA. After
Defendants moved to decertify the class, the Court found the
current class representative inadequate in January 2019 and
gave Plaintiffs 30 days to find a suitable substitute.
Plaintiffs have now moved to substitute Ms. Marita Moore
(“Moore”) as representative of the class.
Defendants argue-quite forcefully-that the class should be
decertified because Moore is not a member of the class, does
not bring claims that are typical of the class, and is an
inadequate class representative.
Court finds merit to some of Defendants' arguments, but
not enough to warrant denying Moore's substitution as
class representative on all claims. It finds that Moore
brings typical claims and is an adequate class representative
with respect to Plaintiffs' claims of disparate impact
discrimination. However, it concludes that Moore does not
bring discriminatory statements claims that are typical of
the class. Exercising its discretion in structuring the class
to best serve the efficient administration of this case, the
Court decertifies the class as to the discriminatory
statements claims but otherwise grants the motion to
Court has already set out the facts underlying
Plaintiffs' class claims in detail in its prior opinions.
See Borum v. Brentwood Vill., LLC (“Borum
I”), 218 F.Supp.3d 1, 5-8 (D.D.C. 2016); Borum
v. Brentwood Vill., LLC (“Borum
II”), 324 F.R.D. 1, 6-7 (D.D.C. 2018); Borum
v. Brentwood Vill., LLC (“Borum
III”), 329 F.R.D. 90, 91-93 (D.D.C. 2019). It
assumes familiarity with those prior opinions and only
briefly summarizes the procedural history leading to the
plaintiffs Adriann Borum, Loretta Holloman, and One D.C.
filed this case on August 25, 2016, bringing claims against
defendants Brentwood Village, LLC, Mid-City Financial
Corporation, and Edgewood Management Corporation, for
disparate impact discrimination and discriminatory statements
in violation of the FHA and DCHRA. Compl., ECF No. 2. They
alleged that the defendants' proposed redevelopment plan
for the Brookland Manor apartment complex, which would reduce
the number of three-bedroom apartments and fully eliminate
four- and five-bedroom apartments from the redesigned
property, would have a disparate impact on families based on
their familial status, in violation of the FHA and DCHRA.
Id. ¶¶ 140-62. And they alleged that the
defendants had further violated the FHA and DCHRA by making
statements that discriminated against families in connection
with the proposed redevelopment. Id. ¶¶
the parties stipulated to the dismissal of the claims against
Brentwood Village, LLC, see Stipulation of
Dismissal, ECF No. 12, and Holloman voluntarily dismissed her
claims on November 27, 2017, see Order Granting
Unopposed Mot. for Voluntary Dismissal, ECF No. 56, the Court
certified a class of Brookland Manor plaintiffs on February
12, 2018, see Borum II, 324 F.R.D. at 20. The Court
certified the class of:
All individuals who reside at Brookland Manor in a three-,
four-, or five-bedroom unit that houses one or more minor
child and his or her guardian, 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
Id. In doing so, the Court rejected Defendants'
argument that a class that included individuals who do not
qualify for familial status under the FHA or DCHRA-here,
individuals living in the same unit as minor children but who
were not themselves parents or guardians of minor
children-was overbroad. See Id. at 12-13. The Court
specifically found that such individuals “ha[d]
standing to sue under the FHA, ” stood to “suffer
the same injury-in-fact as the parents and minors contained
within the class-displacement due to the Defendants'
redevelopment plan, ” and sought the same relief,
“an injunction ordering Defendants to alter their
redevelopment plan.” Id. at 13. The Court also
rejected Defendants' argument that Borum was an
inappropriate representative for the class. While Defendants
argued that Borum's claims were not typical of the class
because, inter alia, she “ha[d]
‘non-protected individuals' (her adult children)
living with her, ” id. at 16, the Court
explained that the defenses Defendants claimed applied to
Borum also applied to other class members, id. at
17. And the Court disagreed that a purported dispute amongst
putative class members regarding whether the development
should go forward created an unsurmountable conflict of
interest for Borum. See Id. at 17-19.
August 10, 2018, Defendants moved to decertify the class.
See Defs.' Mem. Supp. First Mot. Decertify
Class, ECF No. 72; Borum III, 329 F.R.D. at 92.
Defendants argued that Borum no longer adequately represented
the interests of the class because she had been issued a
notice to vacate and would soon be facing eviction. See
Borum III, 329 F.R.D. at 92-93. And Defendants contended
that “decertification ‘[was] the appropriate
step' because ‘it [was] unlikely that a substitute
w[ould] be found, '” id. at 100 (quoting
Defs.' Mem. Supp. First Mot. Decertify 14), re-iterating
their argument that there was “substantial evidence
that many residents . . . disagree[d] with the objectives of
th[e] litigation, ” id. at 101 (quoting
Defs.' Mem. Supp. First Mot. Decertify 14). On January 7,
2019, the Court denied the motion. See Borum III,
329 F.R.D. at 101. While the Court agreed that Borum's
situation created a conflict that rendered her an inadequate
class representative, it found no reason to decertify the
class before giving Plaintiffs the opportunity to substitute
another representative. Id. at 100-01. The Court
again rejected Defendants' argument that there was a
conflict amongst the class, noting that they offered no
evidence beyond that already rejected in Borum II.
Id. at 101.
The Proposed Substitute Representative
filed their motion to substitute Moore as class
representative on February 6, 2019. See Pls.'
Mot. Substitute, ECF No. 117. In a declaration attached to
the motion, Moore represents that she has been a resident of
Brookland Manor since 1974. See Decl. of Marita
Moore ¶ 1, Pls.' Mot. Substitute Ex. A., ECF No.
117-3. She currently shares a five-bedroom apartment with her
two sisters, Evelyn Moore and Melinda Moore; Rajon Edwards,
Evelyn Moore's nine-year old grandson; and Chyler Smith,
Evelyn Moore's twelve-year old granddaughter.
Id. ¶ 2. Moore also represents in the
declaration that her niece Denver Moore, who is nineteen,
lived in the apartment until the fall of 2017, continues to
live in the apartment during breaks in the school year, and
“will return to full-time residence in the
apartment” after graduating from college. Id.
indicates in the declaration that she “know[s] that
Mid-City Financial intends to redevelop Brookland Manor
Apartments, ” which will involve tearing down the
existing apartments. Id. ¶ 4. While she
acknowledges that Defendants have “told [her] and other
tenants that current residents in ‘good standing'
will be able to live in the new property, ”
id. ¶ 5, she also indicates that she has been
informed “that there will be no four- or five-bedroom
apartments at the redeveloped property, ” id.
¶ 6. Moore also explains in the declaration why, given
her family's current situation, she will not be able to
remain a resident of Brookland Manor should the redevelopment
proceed as currently planned. See Id. ¶¶
9-12. She concludes by stating that she “ha[s] become
familiar with this case, including the facts that relate to
the impact the redevelopment will have on families, ”
and that she has “attended numerous community meetings
related to the redevelopment” over the years.
Id. ¶ 15.
was deposed on February 22, 2019. See Moore Dep.,
Decl. of John Byron Ex. E, ECF No. 124-5. During her
deposition, Moore made a number of statements that
potentially or directly contradicted some of the statements
she made in her declaration. She acknowledged that she was
not sure she had continuously lived at Brookland Manor for
the past thirty years. Id. at 126:5-128:12. Whereas
she had indicated in her declaration that Rajon Edwards was
Evelyn Moore's adopted grandson, see Moore Decl.
¶ 2, she noted in the deposition that Evelyn Moore only
had legal custody of Rajon Edwards. Id. at 22:1-12.
And she explained that Denver Moore never actually stayed the
night in the apartment, and did not appear to have plans to
come back to live there after college. See Moore
provided somewhat confusing statements on a range of other
topics at the deposition. While she stated that she had
agreed to become class representative “to help those
out that need four and five bedroom[s] . . . like
[her]self, ” id. at 114:17-21, Moore was
unsure about the next steps in the litigation, the exact
nature of the claims brought, and the size of the class.
E.g. Id. at 115:1-116:15. She initially indicated
that she was not worried her family would be displaced as a
result of the redevelopment, see Id. at 81:13-82:1,
although she later noted “[i]f I sit up and worry about
not having a place to go . . . I will be in worse condition
than I am now, ” id. at 140:17-23. She also
indicated that she did not remember any defendant
“saying that families would not be welcomed at the
redeveloped [property], ” or “ever sa[ying]
anything to [her] that ha[d] caused [her] harm.”
Id. at 89:23 - 90:10. And, although she recalled
receiving Defendants' interrogatories, see Id.
at 137:3-6, she did not remember preparing her answers or
signing them, e.g. Id. at 100:5-7; 137:8-10. After
Defendants followed up by asking how frequently Moore had met
with her attorneys since signing on as class representative a
month earlier, she was unable to remember a specific number
of times. See Id. at 119:25-120:3 (four meetings
altogether); id. at 138:16-139:19 (up to six
meetings); id. at 156:3-20 (up to six phone
conversations in addition to in-person meetings);
id. at 157:12-16 (potential additional in-person
meetings “for other little things, but I can't
recall what it was”).
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)). “[A] district
court's order . . . granting class status is inherently
tentative, ” Reynolds v. Sheet Metal Workers, Local
102, 702 F.2d 221, 226 (D.C. Cir. 1981) (quoting
Coopers & Lybrand v. Livesay, 437 U.S. 463, 469
n.11 (1978)), and the D.C. Circuit has emphasized that
“class certification problems are constantly subject to
reconsideration as the facts develop, ” id.
“As 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)).