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Borum v. Brentwood Village, LLC

United States District Court, District of Columbia

June 11, 2019

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



         Granting 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


         In the 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.

         The 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.

         The 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 substitute.


         A. Procedural History

         The 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 present motions.

         Original 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. ¶¶ 163-78.

         After 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 redevelopment.

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.

         On 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.

         B. The Proposed Substitute Representative

         Plaintiffs 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. ¶ 3.

         Moore 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.

         Moore 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 Dep. 36:5-19.

         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”).


         “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)). “[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)).

         IV. ...

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