Moore v. Little Rock, City of et al
ORDER granting 17 motion to certify the proposed class with the clarification of the class definition. Plaintiff is appointed as the Representative of the class and Plaintiff's counsel is approved as the class counsel. Signed by Judge James M. Moody Jr. on 9/14/2020. (ljb)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ROBERT MOORE, on behalf of himself
and all other entities and persons
CITY OF LITTLE ROCK, et al,
Pending is Plaintiff’s motion for Rule 23 class certification. The Defendants have
responded to the motion. For the reasons set forth below, the motion is granted with certain
Plaintiff, on behalf of himself and others similarly situated, challenges the
constitutionality of Article IX of the City of Little Rock’s Code of Ordinances (the “Rental
Inspection Code” or “RIC”). The provisions of the Rental Inspection Code apply to all rental
housing units in Little Rock, including houses, apartments, manufactured homes and mobile
homes. Under the RIC, it is unlawful for an owner to rent any housing unit without a certificate
of compliance for each unit. Plaintiff contends that to obtain a certificate of compliance a
property owner must pay for a business license and preemptively agree to unlawful searches.
Plaintiff alleges that the Defendants have an established custom of coercing unlawful searches
through threat of loss of property, privacy, or liberty.
Rule 23 Class Certification Standard
To be certified as a class, a plaintiff has the burden of showing that all of the
requirements of Rule 23(a) are met. Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). Rule
One or more 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
impractical; (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
Fed. R.Civ. P. 23(a)). These requirements are commonly referred to as: (1) numerosity, (2)
commonality, (3) typicality, and (4) adequacy of representation.
In addition to the requirements of Rule 23(a), Plaintiff must also show that his claims fall
within one of the categories of Rule 23(b). Plaintiff seeks to certify his class under Rule 23(b)(3),
the so-called Acommon question@ or Adamages@ class action. To certify a class action under Rule
23(b)(3), the Court must find that: 1) common questions predominate over any questions
affecting only individual members; and 2) class resolution is superior to other available methods
for the fair and efficient adjudication of the controversy. Blades v. Monsanto Co., 400 F.3d 562,
568-569 (8th Cir. 2005) (citing Fed. R.Civ. P. 23(b)(3); Amchem Products, Inc. v. Windsor, 521
U.S. 591, 615(1997)). A district court has broad discretion in determining a motion for class
certification and should conduct a rigorous Rule 23 analysis before certifying a class. Spence v.
Glock, Ges.m.b.H, 227 F.3d 308, 310 (5th Cir. 2000).
“In performing this rigorous analysis, ‘[a] court is not bound by the proposed definitions
of the class,’ Smith v. Brown & Williamson Tobacco Corp., 174 F.R.D. 90, 92 n.2 (W.D. Mo.
1997) (citation omitted), and ‘has the authority to redefine a proposed class in such a way as to
allow the class action to be maintained.’” Murphy v. Gospel for Asia, Inc., 327 F.R.D. 227, 234
(W.D. Ark. 2018) (quoting In re Zurn Pex Plumbing Prods. Liability Litig., 267 F.R.D. 549, 558
(D. Minn. 2010); see also Davoll v. Webb, 194 F.3d 1116, 1146 (10th Cir. 1999) (courts have
“broad discretion” to “modify the definition” of the class); In re Monumental Life Ins. Co., 365
F.3d 408, 414 (5th Cir. 2004) (“[H]olding plaintiffs to the plain language of their definition
would ignore the ongoing refinement and give-and-take inherent in class action, particularly in
the formation of a workable class definition.”).
In his motion, Plaintiff seeks certification of the following class:
All owners or agents of any rental housing unit in Little Rock, Arkansas who were
subject to a search or a request for a search from November 3, 2014 through December
Plaintiff contends that the class members’ claims involve a common question of law: the
constitutionality of the Rental Inspection Code, including a violation of procedural and
substantive due process, unlawful searches, excessive fines, and equal protection violations
under the guise of the RIC. They make additional class-wide claims under the Arkansas Civil
Rights Act including retaliation, interference, coercion, and intimidation.
A. Rule 23(a)
“[T]he numerosity requirement of Rule 23(a)(1) requires an inquiry into whether the class
is “so numerous that joinder of all members is impracticable.” Paxton v. Union Nat. Bank, 688
F.2d 552, 559 (8th Cir. 1982). “No arbitrary rules regarding the necessary size of classes have
been established.” Id. (citing Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 54 (8th Cir. 1977)).
Plaintiff claims, and the Defendants do not dispute, that there are 1,138 class members which
Plaintiff has ascertained from the Defendants’ records. The Court finds that eleven hundred class
members is more than enough to satisfy the numerosity requirement in this case. Joinder of this
many individuals would be impracticable.
“Rule 23(a)(2) requires that there be common questions of law or fact among the
members of the class. The rule does not require that every question of law or fact be common to
every member of the class[.]” Paxton, 688 F.2d at 561 (citing Mosley v. General Motors Corp.,
497 F.2d 1330, 1334 (8th Cir. 1974); Like v. Carter, 448 F.2d 798, 802 (8th Cir. 1971), cert.
denied, 405 U.S. 1045, 92 S.Ct. 1309, 31 L.Ed.2d 588 (1972)). “To satisfy Rule 23(a)(2),
plaintiffs must show their claims involve a common question or contention “of such a nature that
it is capable of classwide resolution—which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one stroke. The mere
presence of one or more common questions is not enough; rather, the district court must examine
the capacity of a class-wide proceeding to generate common answers apt to drive the resolution
of the litigation.” Postawko v. Missouri Dep't of Corr., 910 F.3d 1030, 1038 (8th Cir. 2018)
(internal quotes and citations omitted).
Plaintiff argues that Defendants have engaged in the same course of conduct with all
class members. Plaintiff states that some of the evidence which the class will use to prove its
claims are the Defendants’ letters demanding to perform warrantless inspections, letters and
reports documenting warrantless inspections, and certificates of compliance documenting
warrantless inspections. Plaintiff contends that these documents will prove that, pursuant to the
RIC, the Defendants require all class members to surrender their rights and their tenants’ rights
to be free from unlawful searches as a condition to renting property. Plaintiff contends that this
evidence will also prove that that members of the class had to give up this right without notice
that they could refuse to consent to a search or that they could request a pre-deprivation hearing
before an impartial decisionmaker. The letters also state that Plaintiff and class members who
fail to correct a life safety violation of the RIC within seven days will be issued a citation for
appearance in municipal court. Plaintiff claims that Defendants enforced these unlawful practices
against Plaintiff and class members in the same way.
Defendants argue that there cannot be commonality because the claims alleged and the
law applicable to the class require analysis on a case by case basis. The Court finds that Plaintiff
has met his burden of establishing the commonality requirement. All class members share the
common questions of whether the RIC and ordinances supporting it are unconstitutional and
whether Defendants should be enjoined from enforcing the RIC. The answer to these questions
will resolve issues central to the validity of each class members’ claim.
“Typicality under Rule 23(a)(3) means that there are ‘other members of the class who
have the same or similar grievances as the plaintiff.’” Alpern v. UtiliCorp United, Inc., 84 F.3d
1525, 1540 (8th Cir. 1996) (quoting Donaldson v. Pillsbury Co., 554 F.2d 825, 830 (8th Cir.
1977)). The burden is “fairly easily met so long as other class members have claims similar to
the named plaintiff.” DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir. 1995). “Factual
variations in the individual claims will not normally preclude class certification if the claim
arises from the same event or course of conduct as the class claims, and gives rise to the same
legal or remedial theory.” Alpern, 84 F.3d at 1540 (quoting Donaldson, 554 F.2d at 830).
“Commonality and typicality ‘tend to merge’ because both of them ‘serve as guideposts for
determining whether under the particular circumstances maintenance of a class action is
economical and whether the plaintiff’s claim and the class claims are so interrelated that the
interests of the class members will be fairly and adequately protected in their absence.’” Young v.
Nationwide Mut. Ins. Co., 693 F.3d 532, 542 (6th Cir. 2012) (quoting Wal-Mart Store, Inc. v.
Dukes, 1564 U.S. 338, 349 n.5 (2011)).
Defendants do not make any argument regarding typicality of the class. As stated, the
claims made by Plaintiff on behalf of the class members involve the same course of conduct by
Defendants. Defendants may have individualized defenses to the claims of some class members.
However, “[s]light factual variations in the individual claims will not normally preclude class
certification.” Walls v. Sagamore Ins. Co., 274 F.R.D. 243, 254 (W.D. Ark. 2011) (citing Alpern,
84 F.3d at 1540). The Court finds Plaintiff’s claims are typical of the class.
4. Fair and Adequate Representation of the Class
“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest
between named parties and the class they seek to represent. [A] class representative must be part
of the class and possess the same interest and suffer the same injury as the class members.”
Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 625–26, 117 S. Ct. 2231, 2250–51, 138 L. Ed. 2d
689 (1997) (internal citations omitted). Plaintiff’s claims are based upon the same evidence as
will be used by the class members. Plaintiff may have some individual evidence to present.
However it does not predominate over the class claims. There is no evidence that Plaintiff has a
conflict of interest with the class. He has diligently prosecuted this case and has retained
competent legal counsel. Plaintiff’s attorneys, Kevin Lemley and Chris Corbitt, appear to have
extensive class action experience and there has been no argument or evidence presented by
Defendants that Mr. Lemley and Mr. Corbitt cannot fully and adequately represent this class.
(ECF No. 18-6). From the record, the Court finds that the Plaintiff has proven that he and his
counsel can fairly and adequately protect the interests of the class.
B. Rule 23(b)(3)
The focus of Rule 23(b)(3) is that common issues predominate over individual issues and
that a class action is superior to other available methods for the fair and efficient adjudication of
the controversy. ATo satisfy the >predominance= standard, plaintiffs must show that [their claims]
can be proven on a systematic, class-wide basis.@ In re Prempro, 230 F.R.D. 555, 566 (quoting
Blades, 400 F.3d at 569). This requirement "tests whether the proposed classes are sufficiently
cohesive to warrant adjudication by representation." Amchem, 521 U.S. at 623-24. ADetermining
whether common issues predominate and the class action is superior requires consideration of
the relevant claims, defenses, facts, and substantive law presented.@ In re Prempro, 230 F.R.D. at
566. AIf, to make a prima facie showing on a given question, the members of a proposed class
will need to present evidence that varies from member to member, then it is an individual
question. If the same evidence will suffice for each member to make a prima facie showing, then
it becomes a common question.@ Blades, 400 F.3d at 566.
With regard to the claim that the RIC is unconstitutional on its face, Defendants appear to
concede that common issues predominate over individual issues. However, Defendants argue
that Plaintiff’s claims regarding the constitutionality of the RIC as it has been applied to class
members cannot be determined on a class-wide basis because the facts relating to each
inspection, or request for inspection, will vary.
The main issue with regard to all class members is whether Defendants should be
enjoined from executing the RIC and its supporting ordinances. The Court has already found that
common questions of law and fact predominate over individual questions of law and fact in this
dispute. Resolving the issues on a class-wide basis will be more efficient and cost-effective than
litigating the issues as to each of the hundreds of owners or agents of rental housing units in
Little Rock who were subject to a search, or a request for a search, within the given time frame.
As for individual damage claims, the Court will consider bifurcation of those issues if the
C. Class Definition
“The requirement that a class be clearly defined is designed primarily to help the trial
court manage the class. It is not designed to be a particularly stringent test, but plaintiffs must at
least be able to establish that the general outlines of the membership of the class are determinable
at the outset of the litigation.” Id. (quoting Bynum v. Dist. of Columbia, 214 F.R.D. 27, 31
(D.D.C. 2003)). The Court finds that the inclusion of the word “licensed” in the class definition
would make the class more clearly ascertainable. Although it is implied that all owners or agents
of rental housing units in Little Rock must be licensed because licensing is part of the Plaintiff’s
allegation of unconstitutionality, the Court finds that requiring class members to be licensed
clarifies the boundaries of the definition. See Murphy, 327 F.R.D. at 558 (“The description of a
proposed class must be sufficiently definite to permit class members to be identified by objective
The defined class will be as follows:
All licensed owners or agents of any rental housing unit in Little Rock, Arkansas who
were subject to a search or a request for a search from November 3, 2014 through
December 31, 2017.
Plaintiff’s motion to certify the proposed class (ECF No. 17) is GRANTED with the
clarification of the class definition. Plaintiff is appointed as the Representative of the class and
Plaintiff’s counsel is approved as the class counsel.
IT IS SO ORDERED this 14th day of September, 2020.
James M. Moody Jr.
United States District Judge
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