BROWN v. GOVERNMENT OF THE DISTRICT OF COLUMBIA

Filing 148

MEMORANDUM OPINION re: Plaintiffs' 70 Renewed Motion for Class Action Treatment. A separate Order will accompany this Memorandum Opinion. Signed by Judge Christopher R. Cooper on 7/27/2017. (lccrc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NICKOYA HOYTE, et al.,1
Plaintiffs,
v.

Case No. 1:13-cv-00569 (CRC)

DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
Over a dozen plaintiffs have sued the District of Columbia for damages stemming from
the seizure of their property incident to arrests that took place between 2010 and 2013. The
seizures were effected under the city’s former asset forfeiture statute, which authorized the
District of Columbia Metropolitan Police Department (“MPD”) to seize and seek civil forfeiture
of any property that it had probable cause to believe was involved in criminal activity, whether
or not the property was owned by the arrestee. Plaintiffs contend that various aspects of the
former law, and MPD’s implementation of it, violated their Constitutional due process rights.
Since the filing of this case in 2013, the Court has dismissed a number of specific claims
and Plaintiffs have voluntarily jettisoned others. Five claims survive, all of which involve
seizures of property, mainly cars, for the sole purpose of civil forfeiture. Plaintiffs now seek
class certification under Federal Rule of Civil Procedure 23 with respect to four of the remaining
claims. These four claims allege: that the now-repealed law denied Plaintiffs a prompt and
meaningful opportunity to seek the interim release of their property pending an ultimate

1

This case was previously captioned as Kimberly Brown, et al. v. District of Columbia.
Named Plaintiff Kimberly Brown dismissed all of her claims with prejudice on March 9, 2017.
See Consent Motion to Dismiss Claims, ECF No. 121 (Mar. 9, 2017).

forfeiture determination (Claim Three); that the District failed to take reasonable steps to notify
property owners that their property had been seized and was subject to forfeiture (Claim Five);
that MPD failed to return seized cars to their owners after it determined that the cars were no
longer subject to forfeiture (Claim Seven); and that MPD routinely denied (and discouraged
applications for) waivers of the statute’s requirement that property owners post a cash bond in
order to challenge the forfeiture (Claim Fourteen). For the reasons that follow, the Court will
certify Claims Three and Five for class action treatment, but will decline to certify Claims Seven
and Fourteen.
I.

Background
A. Civil Forfeiture in the District of Columbia
The District’s civil forfeiture regime existed without meaningful reform from 1981 to

2015. See D.C. Code § 48–905.02. Under the former statute, once MPD officers seized
property, the District was required to provide notice to any person having “a right of claim to the
seized property.” Id. § 48–905.02(d)(3)(A). After receiving such notice, an owner needed to file
a claim and pay a bond of the lower of $2,500 or 10 percent of the appraised value of the
property—but not less than $250—in order to assert an interest in the property and contest the
forfeiture. Id. § 48-905.02(d)(3)(B). A potential claimant could request a waiver or reduction of
the bond requirement, based on indigency. D.C. Mun. Regs. 6-A § 806.6–7. Once an owner
paid the bond (or secured a waiver), the District initiated civil forfeiture proceedings in D.C.
Superior Court. D.C. Code § 48-905.02(d)(3)(E). But if the owner failed to pay the bond or to
request a waiver, the MPD itself determined, ex parte, whether the property was forfeitable. Id.
at § 48-905.02(d)(3)(C). If the property was deemed forfeitable, the owner was permanently
dispossessed of ownership. Id. at § 48-905.02(d)(4). The former statute further provided that if

2

the property “is not deemed forfeitable under this chapter and is not otherwise subject to
forfeiture, the [District] shall return the property to its rightful owner.” Id. at § 48905.02(d)(3)(C).
The Council of the District of Columbia amended the civil forfeiture law in 2015. See
Civil Asset Forfeiture Amendment Act of 2014, 62 D.C. Reg. 1,920 (Feb. 13, 2015). Among
other changes, the new law shifted the burden of proof in forfeiture hearings from the property
owner to the government, eliminated drug possession as a forfeitable offense, and gave owners
an opportunity to request the interim release of their property. Id. Notwithstanding these
reforms, the District remains liable for any Constitutional deficiencies in the pre-amendment
forfeiture regime.
B.

Legal Claims and Procedural Background

The specific allegations raised by the representative Plaintiffs are recounted in the
Court’s prior ruling on the District’s Motion to Dismiss Plaintiffs’ Complaint. See Brown v.
District of Columbia, 115 F. Supp. 3d 56 (D.D.C. 2015). Plaintiffs filed suit on April 25, 2013,
bringing a total of sixteen different claims under both the Fourth and Fifth Amendments. The
District subsequently moved to dismiss the suit. The Court partially granted the District’s
motion in August 2015, striking all but five of the claims. See id. at 56. The parties then
proceeded to a lengthy period of discovery, and Plaintiffs moved for class certification on all
surviving claims except for Claim Ten, as described above.

3

C.

Proposed Class Definitions

Plaintiffs propose the following class definitions for Claims Three, Five, Seven, and
Fourteen2:
Claim Three
[Claim Three consists of] each person whose vehicle at any time during the period
beginning three years before the date of filing of the original complaint (4/25/13) and
ending on June 2015 (1) had been taken by the District of Columbia for civil forfeiture and
was being detained in the custody of the Mayor; or (2) was taken for civil forfeiture and
detained in the custody of the Mayor; and (3) was not given a prompt post seizure hearing
within five days from the date of taking, or within 35 days of the date of taking if a
prosecution relating to the vehicle was initiated and the vehicle was also held for
investigation or evidence.
Pl.’s MCC, Proposed Order 2.
Claim Five
[Claim Five consists of] each person (who was not a member of either of the Hardy classes)
whose property at any time during the period beginning three years before the date of filing
of the original complaint (4/25/13) up until the termination of this action (1) had been taken
by the District of Columbia for civil forfeiture and was being detained in the custody of the
Mayor; or (2) was taken for civil forfeiture and detained in the custody of the Mayor; and
(3) did not receive Notice of Intent to Administratively Forfeit the Following Property.
Id.
Claim Seven
[Claim Seven consists of] each person whose property at any time during the period
beginning three years before the date of filing of the original complaint (4/25/13) up until
the termination of this action (1) had been taken by the District of Columbia for civil
forfeiture and was being detained in the custody of the Mayor; or (2) was taken for civil
forfeiture and detained in the custody of the Mayor; and (3) the District did not (i) return
the property or (ii) send notice and provide a hearing regarding the owner’s right to the
property (4) within two weeks after the latter of (a) the Property Clerk or the Office of
Attorney General determined that the property was not subject to forfeiture, or (b) 90 days
if the District did not conduct a forfeiture determination by that time.
2

While Plaintiffs proposed these definitions in their Renewed Motion for Class Action
Treatment, the Court will order the parties to propose revised class definitions for Claim Three
and Five that are consistent with this Memorandum Opinion and Federal Rule of Civil Procedure
23(c)(1)(B).
4

Id. at 2–3.
Claim Fourteen
[Claim Fourteen consists of] all persons who had been declared CJA eligible or who
satisfied the in forma pauperis criteria of the Superior Court at the time their property was
taken, whose property at any time during the three year period beginning three years before
the date of filing of the original complaint (4/25/13) and ending on 8/22/2013 when the
District adopted the Superior Court criteria for evaluating a litigant’s in forma pauperis
status (1) had been taken for civil forfeiture and was being detained by the District for civil
forfeiture or (2) was taken and detained for civil forfeiture; and (3) was declared forfeited
in a Mayor’s forfeiture determination hearing or who lost the property in a judicial
forfeiture proceeding for non payment of the penal bond.
Id. at 3.
II.

Legal Standards
A.

Federal Rule of Civil Procedure 23(a)

“The class action is an exception to the usual rule that litigation is conducted by and on
behalf of the individual named parties only.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432
(2013). To be certified as a class, Plaintiffs must meet the requirements of Federal Rule of Civil
Procedure 23. All putative classes must first meet the four requirements set forth in Rule 23(a),
which provides that class certification is appropriate only if:
(1) the class is so numerous that joinder of all members is impracticable; (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 class.
Fed. R. Civ. P 23(a). These four requirements are colloquially referred to as numerosity,
commonality, typicality, and adequacy. See Parker v. Bank of America, N.A., 99 F. Supp. 3d
69, 78 (D.D.C. 2015) (citing Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184,
1191 (2013)). Additionally, some courts have imposed an “implied” fifth requirement that the
class be adequately defined and clearly ascertainable—the purpose of which is to “require[ ]

5

plaintiffs to be able to establish that the general outlines of the membership of the class are
determinable at the outset of litigation.” Thorpe v. Dist. of Columbia, 303 F.R.D. 120, 139
(D.D.C. 2014).3 If a putative class fails to meet any of these requirements, that class may not be
certified.
Rule 23 does not specify a minimum number of members that a putative class must
contain in order to satisfy the numerosity requirement. Some appellate courts, however, have
held that numerosity is presumed at 40 members. See, e.g., Marcus v. BMW of North America,
LLC, 687 F.3d 583, 595 (3d Cir. 2012); Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993).
While the D.C. Circuit has not yet spoken on the issue, several district courts in this circuit have
applied that presumption. See, e.g., Hardy v. District of Columbia, 283 F.R.D. 20, 24 (D.D.C.
2012) (citing cases). Importantly, “[t]he general rule is that a plaintiff need not provide the exact
number of potential class members in order to satisfy this requirement . . . . The numerosity
requirement can be satisfied so long as there is a reasonable basis for the estimate provided.”
Feinman v. FBI, 269 F.R.D. 44, 50 (D.D.C. 2010) (emphasis in original) (internal quotations
omitted). Indeed, courts may “draw reasonable inferences from the facts presented to find the
requisite numerosity.” Coleman through Bunn v. District of Columbia, 306 F.R.D. 68, 76
(D.D.C. 2015) (quoting McCuin v. Sec’y of Health and Hum. Servs., 817 F.2d 161, 167 (1st Cir.
1987)). And “[w]here the balance of these factors is a close call, some courts err in favor of

3

The ascertainability requirement, while adopted by some courts in this district, has been
recently disavowed by four federal appellate courts. See Briseno v. ConAgra Foods, Inc., 844
F.3d 1121 (9th Cir. 2017); Sandusky Wellness Ctr., LLC, v. Medtox Sci., Inc., 821 F.3d 992 (8th
Cir. 2016); Rikos v. Procter & Gamble Co., 799 F.3d 497(6th Cir. 2015); Mullins v. Direct
Digital, LLC, 795 F.3d 654 (7th Cir. 2015); see also Geoffrey C. Shaw, Note, Class
Ascertainability, 124 Yale L. J. 2354, 2367 (2015) (discussing the ascertainability requirement’s
inconsistency with the text of Rule 23). Because the D.C. Circuit has not opined on the
requirement, the Court will apply it out of an abundance of caution.
6

certification because a court always has the option to decertify the class if it is later found that
the class does not in fact meet the numerosity requirement.” Id.
Rule 23’s commonality requirement presents a more nuanced inquiry because “any
competently crafted class complaint literally raises common ‘questions.’” Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 349 (2011) (internal citation omitted); see also Love v. Johanns, 439
F.3d 723, 729–30 (D.C. Cir. 2006) (“[A]t a sufficiently abstract level of generalization, almost
any set of claims can be said to display commonality.”). Instead, “[w]hat matters to class
certification . . . is not the raising of common ‘questions’—even in droves—but, rather the
capacity of a classwide proceeding to generate common answers apt to drive the resolution of the
litigation.” Wal-Mart, 564 U.S. at 350 (internal quotations omitted). This requirement is
usually met when the class members “challenge policies or practices that apply to all members of
the class.” 5-23 Moore’s Federal Practice – Civil § 23.23 n.7.5.1.
The typicality requirement “aims at ensuring that the class representatives have suffered
injuries in the same general fashion as absent class members.” Hardy, 283 F.R.D. at 26 (internal
quotations omitted). “Generally speaking, typicality is satisfied when the plaintiffs’ claims arise
from the same course of conduct, series or events, or legal theories of other class members.”
Daskalea v. Washington Humane Soc., 275 F.R.D. 346, 358 (D.D.C. 2011) (citing In re XM
Satellite Radio Holdings Secs. Litig., 237 F.R.D. 13, 18 (D.D.C. 2006)). Importantly, “[t]he
facts and claims of each class member do not have to be identical to support a finding of
typicality; rather, typicality refers to the nature of the claims of the representative, not the
individual characteristics of the plaintiff.” Id. (citing Radosti v. Envision EMI, LLC, 717 F.
Supp. 2d 37, 52 (D.D.C. 2010)).

7

Rule 23(a)’s last requirement—adequacy of representation—imposes two criteria on
plaintiffs seeking to represent the class: “(1) the named representative must not have
antagonistic or competing interests with the unnamed members of the class, and (2) the
representative must appear able to vigorously prosecute the interests of the class through
qualified counsel.” Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997).
The adequacy requirement “serves to uncover conflicts of interest between named parties and the
class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997)
(internal citation omitted). This is not a stringent requirement, as a conflict “must be
fundamental” and “go to the heart of the litigation” in order to preclude certification. Gunnells v.
Healthplan Servs., Inc., 348 F.3d 417, 430–31 (4th Cir. 2003) (quoting 6 Alba Conte & Herbert
B. Newberg, Newberg on Class Actions § 18:14 (4th ed. 2002)).
B.

Federal Rule of Civil Procedure 23(b)

Once plaintiffs satisfy Rule 23(a)’s requirements, they must then choose a type of class
action under Rule 23(b) and meet the requirements of that class type as well. Plaintiffs here seek
certification under both Rule 23(b)(2) and 23(b)(3). Rule 23(b)(2) provides that a court may
certify a class if “the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(3) states that a
court may certify a class “if the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual members, and that a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). In short, a (b)(2) class is appropriate where plaintiffs

8

seek declaratory or injunctive relief, while the more stringent (b)(3) class is appropriate where
individualized monetary damages are sought.
Where, as here, a putative class seeks both declaratory relief and individualized damages,
the appropriate class type depends on which form of relief predominates. In Wal-Mart, the
Supreme Court reversed the decision of a district court to certify a class of female Wal-Mart
employees under Rule 23(b)(2) that had sought both injunctive and declaratory relief, along with
punitive damages and backpay stemming from alleged sex discrimination. 564 U.S. at 344–45.
In doing so, the Supreme Court held:
[R]espondents’ claims for backpay were improperly certified under Federal Rule
of Civil Procedure 23(b)(2). Our opinion in Ticore Title Ins. Co. v. Brown, 511
U.S. 117, 121 (1994) (per curiam) expressed serious doubts about whether claims
for monetary relief may be certified under that provision. We now hold that they
may not, at least where (as here) the monetary relief is not incidental to the
injunctive or declaratory relief . . . . In other words, Rule 23(b)(2) applies only when
a single injunction or declaratory judgment would provide relief to each member of
the class . . . . [I]t does not authorize class certification when each class member
would be entitled to an individualized award of monetary damages.
Wal-Mart, 564 U.S. at 360–61; see also Taylor v. Dist. of Columbia Water & Sewer Auth., 241
F.R.D. 33, 47 (D.D.C. 2007) (“Certification under Rule 23(b)(2) is not always appropriate,
however, when a class seeks monetary damages in addition to injunctive [or declaratory] relief;
indeed, it is not permitted if such monetary claims predominate.”). Because monetary damages
predominate each claim under which Plaintiffs seek class certification, the Court will evaluate
the claims under Rule 23(b)(3).
C.

Class Certification Standard and Burden of Proof

“Class certification motions have their own distinct burdens and fact finding
requirements.” Parker v. Bank of Am., N.A., 99 F. Supp. 3d 69, 80 (D.D.C. 2015). With respect
to factual findings, courts must make their own “to the extent necessary to rule on a motion for

9

class certification.” Id. at 80. The Supreme Court has characterized the required fact finding as
“rigorous,” and noted that it may “overlap with the merits of the plaintiff’s underlying claim.”
Wal-Mart, 564 U.S. at 354; see also id. at 351 (“The class determination generally involves
considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause
of action.”) (internal quotation marks omitted).
To satisfy their burden of persuasion, plaintiffs must generally show that they have met
the requirements of Rule 23 by a preponderance of the evidence. Id. at 354. However, the
Supreme Court’s decision in Wal-Mart suggests that a more stringent standard should apply to
proving Rule 23’s commonality and predominance requirements in certain cases. Id. In WalMart, the Supreme Court ostensibly heightened the standard for showing that a defendant’s
custom, policy, or practice caused a class-wide injury from a “preponderance of the evidence” to
“significant proof.” A fellow judge in this district has described the standard as follows:
Notably, when the commonality element of a class certification motion hinges on
the plaintiff’s contention that the defendant has engaged in a policy or practice that
has consistently and uniformly injured the putative class members, the plaintiff
must provide ‘significant proof’ that such a policy or practice exists. Wal-Mart,
564 U.S. at 354. In other words, the movant must do more than merely allege a
common contention that conceivably could give rise to the conclusion that there
has been the same classwide injury; he must support that allegation with significant
evidence. Id. Although it appears that ‘[c]ourts have taken different views of
whether Wal-Mart’s significant proof standard applies to all class certification
decisions or only to claims alleging systemic discrimination,’ Parsons v. Ryan, 754
F.3d 657, 684 n. 29 (9th Cir. 2014), . . . this Court sees no reason to make any such
distinction.
Parker, 99 F. Supp. 3d at 81 (emphasis in original). Consistent with this analysis, a
preponderance standard generally applies to Rule 23’s requirements. But when class
certification turns on an alleged custom, practice, or policy of the defendant, a heightened
standard applies to the relevant prongs of Rule 23.

10

III.

Discussion
The Court now turns to whether Plaintiffs have met Rule 23’s requirements with respect

to each claim on which they seek certification. The Court finds that Plaintiffs have cleared the
bar for Claims Three and Five, but have failed to do so for Claims Seven and Fourteen.
A.

Claim Three: Interim Post-Seizure Hearings
1.

Rule 23(a) Factors

Plaintiffs satisfy Rule 23(a)’s requirements for Claim Three, which alleges that the
former statute violated their due process rights by failing to provide interim hearings at which
they could challenge the seizure and continued retention of their vehicles pending a final
forfeiture determination. First, Plaintiffs have met their burden to establish numerosity.
Plaintiffs’ Exhibit 35 is the District’s response to a Freedom of Information Act request that
contains annual reports from the MPD’s Asset Forfeiture Unit. See Pl.’s MCC, Ex. 35. The
reports provide statistics on the number of vehicles that MPD seized for forfeiture in 2010, 2011,
and 2012. Id. at 3–14. The MPD seized at least 229 vehicles in 2012, alone. Id. at 4. And for
the three-year period from 2010 to 2012, which roughly aligns with the class period, the MPD
seized at least 839 vehicles. See id. at 4–12. This tally is more than enough for the Court to find
that there is a “reasonable basis” for determining that numerosity has been satisfied. Feinman,
269 F.R.D. at 50.
Moving to the commonality requirement for Claim Three, the Court agrees with Plaintiffs
that the District’s civil forfeiture statute constitutes a “uniform policy or practice that affects all
class members,” Pl.’s MCC 14–15, insofar as the absence of interim hearings was a feature of
the statute itself. See Brown, 115 F. Supp. 3d at 63–68. In other words, every person whose
vehicle was seized pursuant to the District’s forfeiture law during the class period sustained the

11

constitutional injury alleged in Claim Three. See Second Amend. Order & J., Krimstock v.
Kelly, 2005 U.S. Dist. LEXIS 43845, at *2–3 (S.D.N.Y. Nov. 29, 2005) (certifying a class of
persons whose vehicles were seized by the police without a prompt post-seizure hearing, and
noting that Rule 23(a)’s requirements were met “because the issues in this action are entirely
issues of law and recur whenever a vehicle is seized by the Police Department at the time of the
arrest of a driver”). Thus, class action treatment for this claim will “generate common answers
apt to drive the resolution of litigation.” Wal-Mart, 564 U.S. at 350.
With respect to typicality, the District maintains that the claims of the representative
Plaintiffs are too distinct to meet this requirement. For example, the District argues that
Plaintiffs Ishebekka Beckford, Nickoya Hoyte, and Steven May are atypical because they could
have received a post-seizure hearing under Superior Court Rule of Criminal Procedure 41(g),
thus obtaining “the post-seizure hearing they claim they were entitled to under the Fifth
Amendment.” Def.’s Opp’n 20.4 This argument misses the mark. To be sure, “[c]ourts in this
district have generally found Rule 41(g) to be a constitutionally adequate means of obtaining the
return of seized property in criminal cases.” Jenkins v. Dist. of Columbia, No. 16-cv-118, slip
op. at 8 (D.D.C. Mar. 28, 2017). But the same cannot be said of Rule 41(g) motions in the civil
forfeiture context, specifically. As the D.C. Court of Appeals has explained, “the reason for the
difference is substantive, because instead of only the [property owner] laying claim to the
property, his right to it has been disputed by the government’s seizure of the property [for
forfeiture].” Dist. of Columbia v. Dunmore, 749 A.2d 740, 745 (D.C. 2000). The D.C. Court of

4

D.C. Superior Court Rule of Criminal Procedure 41(g) provides that “[a] person
aggrieved by an unlawful search and seizure of property or by the deprivation of property may
move for the property’s return . . . . If it grants the motion, the court must return the property to
the movant, but may impose reasonable conditions to protect access to the property and its use in
later proceedings.” Sup. Ct. R. Crim. P. 41(g).
12

Appeals went on to describe a motion brought under Rule 41(g) as a “simple matter” that is
“inapplicable where ‘competing claimants’ vie for property.” Id. at 744–45 (quoting Stevens v.
United States, 462 A.2d 1137, 1339 (D.C. 1983)). Notwithstanding its current position on the
issue, the District voiced agreement with this characterization in a prior case:
A Rule 41(g) motion is not directly relevant to the civil forfeiture proceedings.
Under District of Columbia law, a Rule 41(g) motion may be used to seek release
of property that was unlawfully seized and thus not admissible as evidence in the
criminal case, but it may not be used to adjudicate forfeiture issues, which may only
be addressed in civil forfeiture proceedings.
Brown, 115 F. Supp. 3d at 65 n.2 (citing Defs.’ Suppl. Filing, Simms v. Dist. of Columbia, No.
12–cv–00701, at *2 (D.D.C. June 22, 2012)). Thus, because Rule 41(g) motions do not provide
the full relief sought by Plaintiffs, the availability of these hearings to certain Plaintiffs does not
render those Plaintiffs’ claims atypical. The District’s additional attempts to highlight minor
factual differences among the putative class representatives to defeat a finding of typicality are
similarly unavailing. See Def.’s Opp’n 21–22. After all, “the facts and claims of each class
member do not have to be identical to support a finding of typicality; rather, typicality refers to
the nature of the claims of the representative.” Daskalea, 275 F.R.D. at 358. The Court
therefore finds that Plaintiffs have satisfied Rule 23(a)’s typicality requirement.
Plaintiffs also satisfy Rule 23(a)’s final requirement of adequacy of representation.
Plaintiffs all share the same interest in obtaining damages from the District’s failure to provide
post-seizure hearings, and the District has not alleged that Plaintiffs lack competent legal
representation. And to the extent the Court is required to consider the definiteness and
ascertainability of the proposed class, the Court finds these implicit requirements met as well.
The class is adequately defined, as it includes any individual whose property was seized and was
not provided with a prompt interim hearing. See Pl.’s MCC, Proposed Order 2. And the class is

13

ascertainable because Plaintiffs have shown that MPD has the names and addresses of the
owners of seized vehicles in a database. Pl.’s MCC, Ex. 80, 1–2 (Affid. of Michael Hamman).
2.

Rule 23(b) Factors

Because Plaintiffs seek individualized monetary damages, they must meet Rule
23(b)(3)’s requirements of predominance and superiority. See supra Part II.B. These
requirements are met because Plaintiffs can prove injury on a class-wide basis without
conducting individualized inquiries. See In re Rail Fuel Surcharge Antitrust Litigation-MDL No.
1869, 725 F.3d 244, 252–53 (D.D.C. 2013) (noting that in determining if Rule 23(b)(3)’s
requirements have been satisfied, a district court may assess “whether the plaintiffs could show,
through common evidence, injury in fact to all class members from the alleged [unlawful actions
of the defendant]”). The alleged injury in Claim Three—the failure to provide prompt postseizure hearings—was the result of a systemic District policy implemented consistent with the
former asset forfeiture statute, which did not require such hearings. There is no need to assess
the injury on a member-by-member basis because the District did not provide the required
hearings to any property owners. This was the District’s policy and practice, and thus, from a
pragmatic standpoint, class adjudication is appropriate.
The District’s arguments to the contrary are unavailing. It contends that Claim Three
“will require an examination of each class member’s individualized circumstances” because: (1)
some class members may have sought the return of property by filing a motion under Superior
Court Rule of Criminal Procedure 41(g); (2) some class members may have filed a petition for
remission or mitigation of an administrative forfeiture under D.C. Code § 48–905.02(d)(3)(F);
(3) some class members may have submitted a property claim form; and (4) some of the seized
vehicles were held as evidence in criminal proceedings. Def.’s Opp’n 31.

14

The first argument fails because, as stated in the above discussion on typicality, Rule
41(g) motions would not have provided the full relief sought even if they were available to some
class members. The second argument falters because petitions for remission or mitigation of an
administrative forfeiture are not available until after property has been forfeited. See D.C. Code
§ 48–905.02(d)(3)(F); Simms v. District of Columbia, 872 F. Supp.2d 90, 93 n. 3 (D.D.C. 2012)
(“A person with ‘an interest in forfeited property’ may file with the Mayor a petition for
remission or mitigation of the forfeiture . . . but . . . this administrative option is not available
until after the property has been declared forfeited.”). The third argument misses the mark
because while some class members may have gone through the process of filing a claim and
paying the bond—which would have initiated forfeiture proceedings in D.C. Superior Court—
this process was by no means “prompt,” and would not have provided Plaintiffs an opportunity
to obtain temporary possession of the cars pending an ultimate forfeiture determination. And
while the District’s fourth argument is on point, it is irrelevant to the certification of this class
because the Court has ruled that individuals whose property was seized as evidence in an
ongoing criminal proceeding do not have a due process right to a prompt post-seizure hearing
and thus cannot be members of the class. See Jenkins, No. 16-cv-118, slip op. at 1.
Finally, the parties dispute how the issue of damages affects predominance and
superiority. The District claims that the “individualized determination of damages precludes
certification under Rule 23(b)(3).” Def.’s Opp’n 41. Not so. In Wal-Mart, the Supreme Court
found it “clear that individualized monetary claims belong in Rule 23(b)(3).” 564 U.S. at 362.
The D.C. Circuit has likewise held that “the mere fact that damage awards will ultimately require
individualized fact determinations is insufficient by itself to preclude class certification.”
McCarthy v. Kleindienst, 741 F.2d 1406, 1415 (D.C. Cir. 1984).

15

The District also asserts that the individualized damages sought cannot be computed by a
mathematical formula, and thus would require the Court to conduct separate “mini-trials.” See
Def.’s Opp’n MCC 41–42. A formulaic approach to determining individualized damages is
indeed consistent with Rule 23, and has been used in others cases. See, e.g., Brown v. Pro
Football, Inc., 146 F.R.D. 1, 5 (D.D.C. 1992) (noting that plaintiffs relied on a “simple, common
formula” to measure damages for each class member); see also Windham v. Am. Brands, 565
F.2d 59, 68 (4th Cir. 1977) (“[I]n cases where the fact of injury and damage breaks down on
what may be characterized as virtually a mechanical task, capable of mathematical or formula
calculation, the existence of individualized claims for damages seems to offer no barrier to class
certification.”) (internal quotation marks omitted). But importantly, “Plaintiffs do not need to
supply a precise damage formula at the certification stage.” Meijer, Inc. v. Warner Chilcott
Holdings Co., 246 F.R.D. 293, 310–11 (D.D.C. 2011). Rather, “[a]t the certification stage, the
preliminary inquiry in assessing the proposed methods [of calculating damages] is limited: The
inquiry is not whether the methods are valid, but is only to assess whether the methods are
available to prove damages on a class-wide basis.” In re Vitamins Antitrust Litigation, 209
F.R.D. 251, 268 (D.D.C. 2002). Plaintiffs have, nonetheless, offered a three-step formula for
calculating each class member’s damages:
The first step is to calculate the number of over-detention days for each vehicle.
Step two is to determine the per day rental value of the vehicle based on the fair
market value of the vehicle . . . Step three is to multiply the number of overdetention days (Seizure Date minus Hearing Date) by the per day rental value of
the vehicle.
Pl.’s MCC 36. Plaintiffs further assert that the data concerning the number of over-detention
days and the value of each seized vehicle is available in MPD’s property database, and that the
rental value of the seized vehicles can be determined by an expert witness. Id. (citing Ferrari v.
County of Suffolk, 2015 WL 3853489, at *2 (E.D.N.Y. 2015) (noting that an expert witness
16

testified as to a vehicle’s rental value)). While the Court need not adopt this precise damages
framework now, it is satisfied that methods are available to determine damages on a class-wide
basis. It therefore finds that Plaintiffs have satisfied the requirements of Rule 23(a) and 23(b)(3),
and will grant Plaintiffs’ Motion for Class Certification with respect to Claim Three.
B.

Claim Five: Post-Seizure Notice

The Court next turns to Claim Five, which alleges that the District had a custom and
practice of failing to notify property owners that their property had been seized and was subject
to forfeiture. While the former forfeiture law required the District to provide notice to any
person having “a right of claim to the seized property,” D.C. Code § 48-905.02(d)(3)(A),
Plaintiffs contend that the District violated their due process rights by mailing the required
notices to obviously incorrect addresses or by not mailing them at all.5
1.

Rule 23(a) Factors

Plaintiffs satisfy Rule 23(a)’s factors for Claim Five. To demonstrate numerosity,
Plaintiffs have filed with the Court an affidavit from their expert, Samuel Strickland. See Pl.’s
Claim 5 Reply MCC, Ex. A (“Strickland Affid.”). Mr. Strickland asserts that he is an attorney

5

The Court previously dismissed three additional claims by Plaintiffs related to the
former forfeiture law’s notice requirement. First, the Court rejected Plaintiffs’ contention that
due process required the District to provide notice at the time the property was seized. Brown,
115 F. Supp. 3d at 68. The Court also dismissed Plaintiffs’ claim that the content of the notice
was constitutionally inadequate. Id. at 69–70. While these notices already included the property
that was seized and the legal basis for the seizure and potential forfeiture, Plaintiffs contended
that due process also required them to list “the underlying factual basis for the seizure, the court
case or arrest number connected with the seizure, and various details of the forfeiture process.”
Id. at 69. Finally, the Court dismissed Plaintiffs’ challenge to the ex parte proceedings that
occurred when an owner of seized property failed to file a claim and pay the bond (or secure a
bond waiver). Id. at 70 (citing D.C. Code § 48-905.02(d)(3)(C)). Specifically, Plaintiffs alleged
that the District allowed some property owners to participate in the proceedings—
notwithstanding their ex parte nature—and failed to notify all owners of seized property that
participation was possible. Id.
17

with 16 years of “experience analyzing data and documents for the development of evidence in
litigation.” Id. at ¶ 2. According to the affidavit, Strickland reviewed the records that the
District provided to Plaintiffs during discovery from MPD’s “EvidenceOnQ” property database.
See id. at ¶¶ 1–3. The data was exported into a spreadsheet that, according to Strickland, “has
fields which seem to be populated when the District sends notice of intent to administratively
forfeit property to the owners of vehicles and money which the District has seized for forfeiture
determinations.” Id. at ¶ 4. Strickland further asserts that these fields “are populated in only
about 57% of the [more than 10,000] seizure records,” id. at ¶ 5, indicating that the District failed
to send notices to thousands of property owners. Strickland’s declaration goes on to contend that
even in the many cases where the District sent the requisite notice, it is not clear whether the
notice was actually received by the property owner. Id. at ¶¶ 6–7. Strickland bases this
contention on additional documents generated by the District in connection with individual
seizures, including “postal documents indicating that a notice of intent to administratively forfeit
property was sent by registered mail and whether the letter was received or ‘signed for.’” Id. at ¶
6. He claims that “proof of receipt of notice by the addressee is present in only three out of more
than 10,000 records of property seizure.” Id. at ¶ 7.
The District has not offered any documentary evidence to rebut Strickland’s conclusions.
It argues instead that Strickland may not have considered other materials in which MPD could
have memorialized the mailing of notices, such as “[n]otes and [e]dits logs produced to
plaintiffs.” Def.’s Claim 5 Surreply 4 (internal quotation marks omitted). The District points to
the deposition testimony of Lt. Derek Gray, who managed the MPD division responsible for
mailing out the required notices. Id. Lt. Gray testified that when MPD sent out a forfeiture
notice, it placed an entry in the “notes field” of the corresponding EvidenceOnQ seizure record.

18

Def.’s Claim 5 Surreply, Ex. A at 150:15 (“Gray Dep.”). This testimony, however, does not
appear to contradict Strickland’s assertion that he based his analysis on the “[EvidenceOnQ]
fields which seem to be populated when the District sends notice.” Strickland Affid. at ¶ 4.
There is, moreover, no evidence in the record to suggest that MPD memorialized its mailing of
forfeiture notices anywhere other than the data fields identified by Plaintiffs’ expert.
Plaintiffs’ position on numerosity is further supported by Lt. Gray’s prior deposition
testimony in the Hardy litigation. See Pl.’s MCC, Ex. 75 (“Gray Dep.”). To be sure, Hardy
concerned allegations that the District failed to provide forfeiture notices to incarcerated
prisoners; MPD’s evidence control division allegedly did not check if a property owner was
incarcerated before mailing the notice to the owner’s last known address. 283 F.R.D. at 22–23.
However, Lt. Gray stated that as a general matter, MPD’s evidence control division did not
follow up on undelivered returned mail by looking for alternate addresses. Id. at 24 (citing Gray
Dep. at 56–57). From these facts, the Court can reasonably infer that there are at least 40 class
members for Claim Five, and that Plaintiffs have thus satisfied numerosity.
The Court reaches the same conclusion for commonality. True, the alleged failure to
provide notice was not an explicit policy; the former forfeiture statute, after all, required the
District to provide notice. But the EvidenceOnQ data provided to Plaintiffs suggests that the
District’s failure to provide notice was sufficiently widespread to constitute a common custom or
practice. See Affid. of Samuel Strickland ¶¶ 3–7 (indicating that notice was not provided to
property owners in 43% of the more than 10,000 seizures). And, as stated above, the District has
failed to meaningfully refute the factual assertions in the Strickland affidavit. Accordingly, a
class action is likely “to generate common answers apt to drive the resolution of the litigation.”
Wal-Mart, 564 U.S. at 350 (emphasis in original). Judge Wilkins reached the same conclusion in

19

Hardy, where he held that the District’s alleged failure to provide notice as required under the
statute presented a common question of law or fact and constituted a “custom, practice, or
policy” that warranted class action treatment. Hardy, 283 F.R.D. at 24. The Court is thus
satisfied that Plaintiffs’ allegation that the District failed to make reasonable efforts to provide
notice here poses a common question of law or fact.
Turning to typicality, the District offers evidence that it contends establishes that certain
named Plaintiffs for Claim Five were, in fact, given notice that their property was subject to
forfeiture. Specifically, the District has provided copies of the notices that were ostensibly sent
to several Claim Five Plaintiffs, including Kelly Hughes, Terrence Thomas, and Shane Lucas.
See Def.’s Opp’n MCC, Ex. 17. The District contends that because these Plaintiffs received
notices, their claims are not typical of the proposed class. But the District’s evidence is
unavailing because the relevant notices do not indicate whether they were actually received.
Indeed, Plaintiffs Hughes and Lucas have sworn that they did not receive these notices. See Pls.’
MCC, Ex. 14 at ¶ 26 (Decl. of Kelly Hughes) (“I never received the notice [of forfeiture] by mail
at [my] address nor did anyone else at that address receive notice from the District about my
car.”); Ex. 44 at ¶ 8 (Decl. of Shane Lucas) (“The District never sent me a notice of any kind
indicating that the money was subject to forfeiture.”).6 Moreover, even if these Plaintiffs
received a forfeiture notice, there remains at least one named Plaintiff who satisfies typicality.
See, e.g., Pl.’s MCC, Ex. 13 (Affid. of Nickoya Hoyte) (alleging that while the District seized
both her vehicle and cash, she only received a forfeiture notice for the vehicle). Rule 23, after
all, provides that “[o]ne or more members of a class may sue or be sued as representative parties

6

Plaintiff Thomas does not indicate in his affidavit whether he eventually received a
forfeiture notice, asserting only that he did not receive a forfeiture notice at the time of seizure.
See Pl.’s MCC, Ex. 72.
20

on behalf of all members.” Fed. R. Civ. P. 23(a) (emphasis added). Since Plaintiffs have
demonstrated that at least one of their named representatives for Claim Five satisfies typicality,
the Court finds that typicality is satisfied for Claim Five.
The Court next turns to adequacy of representation. After closely reviewing the record,
the Court finds no basis for the District’s contention that the named Plaintiffs would not fairly
and adequately protect the interests of the class.7 The District, moreover, does not argue that
Plaintiffs’ counsel is unable to vigorously prosecute the interests of the class. The Court is thus
satisfied that Plaintiffs meet Rule 23’s adequacy requirement. And to the extent that the Court is
required to consider the definiteness and ascertainability of the proposed class, the Court finds
these implied requirements satisfied. The Claim Five class is adequately defined, see Pl.’s MCC,
Proposed Order 3, and it is ascertainable given that the District has provided Plaintiffs with
specific seizure records from its EvidenceOnQ database that indicate whether notice was sent.
2.

Rule 23(b) Factors

The Court also finds that Plaintiffs satisfy Rule 23(b)(3)’s requirements of predominance
and superiority for Claim Five. Given the EvidenceOnQ data obtained in discovery, which
provides more than 10,000 seizure records, it would appear that Plaintiffs can present evidence
of injury on a class-wide basis without conducting individualized inquiries. And as Judge
Wilkins noted in certifying a very similar notice claim in Hardy, “[e]ven assuming the District
has evidence that it did follow up on any particular undelivered notice, the District can come

7

The District has suggested that the depositions of the named Plaintiffs, which occurred
after briefing was closed on Plaintiffs’ class certification motion, could reveal information that
would call into question the adequacy of class representation. See Hr’g Tr. 59:21–60:8 (Mar.
13, 2017). Now that those depositions have taken place, the District is free to move to decertify
the Claim Three and Claim Five classes if it believes that the named Plaintiffs do not clear Rule
23’s relatively low adequacy bar.
21

forward with that evidence without disrupting the class action.” Hardy, 283 F.R.D. at 28 (citing
7AA Charles Alan Wright, et al., Federal Practice and Procedure § 1778 (3d ed. 2005) (“[W]hen
one or more of the central issues in the action are common to the class and can be said to
predominate, the action may be considered proper under Rule 23(b)(3) even though other
important matters will have to be tried separately.”)).
The Court is also satisfied that individualized damages can be calculated for Claim Five
without resorting to separate mini-trials. While Plaintiffs initially asserted that the measure of
damages is the value of the property seized, they later contended that the same formula for
determining damages in Claim Three could be used for Claim Five. See Pls.’ MCC 42–43; Pls.’
Reply MCC for Claim Five 19. The Court is satisfied that either of the above approaches would
be generally consistent with Rule 23(b)(3). The former approach was approved for calculating
damages on the notice claim in Hardy. See 283 F.R.D. at 28 (“[T]he damages are fixed in that
the District’s own records . . . reflect the monetary amount that each plaintiff lost. Even
assuming interest were to apply to those sums, the calculation of damages claims in this case
would clearly be a mechanical task.”). While this claim, unlike in Hardy, also concerns vehicle
seizures, the additional step of determining a vehicle’s value is no barrier to class certification
because Plaintiffs have already established that this can be determined by an expert. See supra
Part III.A.2. And with respect to the formulaic approach for Claim Five, the Court again need
not endorse any precise formula or valuation method at this stage or determine whether some
variation of the same formula used for Claim Three would be appropriate here. See id. It
suffices for class certification purposes that damages can be determined from the general
formulaic approach proposed by Plaintiffs. The Court is thus satisfied that class action treatment

22

of Claim Five would serve the interests of judicial economy and efficiency without sacrificing
procedural fairness.
Finding that Plaintiffs have satisfied the requirements of Rule 23(a) and 23(b), the Court
will grant Plaintiffs’ Motion for Class Certification with respect to Claim Five.
C.

Claim Seven: Failure to Promptly Return Non-Forfeitable Property

The Court next turns to Claim Seven, which alleges that MPD violated certain Plaintiffs’
due process rights by failing to promptly return their property after it determined the property
was no longer subject to forfeiture. Plaintiffs have not satisfied Rule 23’s requirements for this
claim primarily because they have not offered evidence showing the frequency with which the
alleged injury occurred. For example, Plaintiffs argue that numerosity is satisfied for Claim
Seven because “since January 1, 2010, approximately 598 vehicles have been initially seized for
forfeiture in connection with criminal activity but later released before forfeiture.” Pl.’s MCC at
11 (citing Pl.’s MCC, Ex. 3 at ¶ 4(a) (Second Supp. Decl. of Lt. Gray in Simms v. Dist. of
Columbia, 12-cv-701 (D.D.C. June 9, 2012)). While this statistic may be true, it says nothing
about how many vehicles the MPD failed to promptly return. And since Plaintiffs offer no
additional evidence that numerosity has been satisfied, the Court must find that this requirement
is not met for Claim Seven.
While the Court must deny Plaintiffs’ Motion for Class Certification with respect to
Claim Seven since numerosity has not been satisfied, it will briefly address the remaining Rule
23 factors out of an abundance of caution. First, commonality is not satisfied. Plaintiffs have
not shown that a class action can answer the question of whether the District failed to promptly
return vehicles, primarily because they have not provided any evidence that this was a
widespread practice. Without such evidence, the question begs an individualized inquiry. For

23

this reason, Plaintiffs also cannot satisfy typicality, predominance, and superiority. The Court
must therefore decline to certify Claim Seven.
D.

Claim Fourteen

Finally, the Court turns to Claim Fourteen, which concerns the former civil forfeiture
statute’s bond waiver requirement. Claim Fourteen initially contained both a facial challenge
and an as-applied challenge. See Brown, 115 F.3d at 71. The former alleged that the statute’s
bond requirement was unconstitutional on its face. The latter alleged that the District violated
the due process rights of some Plaintiffs by discouraging them from applying for bond waivers,
and by unreasonably denying waivers to others. The Court granted the District’s Motion to
Dismiss the facial challenge, allowing only the as-applied challenge to proceed. See id. at 70–
72. What remains of Claim Fourteen, however, is clearly inappropriate for class-wide resolution.
Plaintiffs attempt to satisfy numerosity by arguing that the class for Claim Fourteen
includes every property owner who was deemed eligible for a bond waiver. Not so. Because the
Court dismissed Plaintiffs’ facial challenge, the potential class for what remains of Claim
Fourteen includes anyone who was discouraged from applying for bond waivers, and anyone
who was unreasonably or arbitrarily denied a bond waiver. Plaintiffs’ Motion for Class
Certification identifies only two plaintiffs—Dorian Urquhart and Steven May—who claim that
they suffered either or both of these injuries. Pl.’s MCC at 21–22 (citing Ex. 16 at ¶¶ 15–16
(“Affid. of Steven May”); Ex. 73 at ¶¶ 11–14 (“Affid. of Dorian Urquhart”)). The remaining
Plaintiffs in the Second Amended Complaint who were labeled “Penal Bond Named Plaintiffs”
appear to be individuals who paid the bond—and thus sought to challenge the facial validity of
the bond requirement—but were neither discouraged from seeking a waiver nor improperly
denied a waiver. See, e.g., Pl.’s MCC, Ex. 13 at ¶¶ 24–28 (“Affid. of Nickoya Hoyte”).

24

Plaintiffs have not offered additional evidence in support of numerosity. The Court, therefore,
must find that numerosity has not been satisfied.
Rule 23’s remaining requirements are also not satisfied for Claim Fourteen. Plaintiffs
address the commonality requirement by arguing that “[t]he uniform policy or practice that
affects all class members [in Claim Fourteen] is that the Property Clerk had a practice of
virtually never granting applications for waiver or reductions bonds . . . when the District
adopted the Superior Court criteria for evaluating a litigant’s in forma pauperis status.” Pl.’s
MCC at 21. But Plaintiffs have not offered any proof in support of the contention that this
occurred on a class-wide basis. For this reason, Plaintiffs also fall well short of meeting Rule
23(b)(3)’s requirements that class-wide issues predominate over individual issues, and that a
class action is superior to other forms of adjudication. The Court will therefore deny Plaintiffs’
Motion for Class Certification with respect to Claim Fourteen.
IV.

Conclusion
For the foregoing reasons, the Court will grant Plaintiffs’ motion with respect to Claims

Three and Five, and will deny the motion with respect to Claims Seven and Fourteen. A separate
Order accompanies this Memorandum Opinion.

________________________
CHRISTOPHER R. COOPER
United States District Judge
Date: July 27, 2017

25