Faith Action For Community Equity et al v. State of Hawaii et al

Filing 202

ORDER DENYING MOTION TO CERTIFY CLASS UNDER RULE 23(B)(2) OF THE FEDERAL RULES OF CIVIL PROCEDURE re 148 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/20/2015. (emt, )CERTIFICATE OF SERVICEParticipants registe red to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FAITH ACTION FOR COMMUNITY
EQUITY; TOCHIRO KOCHIRO
KOVAC, individually and on
behalf of a class of persons
in the State of Hawaii who,
because of their national
origins, have limited English
proficiency

)
)
)
)
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
STATE OF HAWAII; HAWAII
)
DEPARTMENT OF TRANSPORTATION; )
GLENN OKIMOTO, in his
)
official capacity as the
)
Director of the Hawaii
)
Department of Transport,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 13-00450 SOM/RLP
ORDER DENYING MOTION TO
CERTIFY CLASS UNDER RULE
23(B)(2) OF THE FEDERAL RULES
OF CIVIL PROCEDURE

ORDER DENYING MOTION TO CERTIFY CLASS UNDER RULE 23(B)(2)
OF THE FEDERAL RULES OF CIVIL PROCEDURE
I.

INTRODUCTION.
Plaintiffs Faith Action for Community Equity and

Tochiro Kochiro Kovac (collectively, “FACE”) allege that
Defendant Hawaii Department of Transportation (“HDOT”) violated
the Fourteenth Amendment’s guarantee of equal protection and
Title VI’s prohibition against national origin discrimination in
federally funded programs when it failed to offer Hawaii’s
driver’s license examination in other languages in addition to
English.

Although Hawaii now offers translated versions of the

written driver’s license exam, FACE contends that the risk
remains that Hawaii might once again limit the exam to English.
FACE seeks certification of a class for injunctive
relief under Rule 23(b)(2) of the Federal Rules of Civil
Procedure.

FACE’s motion for class certification is denied.

FACE proposes an overly broad class definition and fails to
satisfy some of the requirements for a class action.

FACE’s

changing theories underscore this court’s determination that
certification is not appropriate under the circumstances
presented here.
II.

FACTUAL BACKGROUND.
The factual background for this case was set forth in

this court’s Order Denying Countermotions for Summary Judgment,
ECF No. 154, filed on February 23, 2015.

That factual background

is incorporated here by reference.
IV.

ANALYSIS.
“[T]he district court facing a class certification

motion is required to conduct ‘a rigorous analysis’ to ensure
that the Rule 23 requirements are satisfied.”

Conn. Ret. Plans &

Trust Funds v. Amgen Inc., 660 F.3d 1170, 1175 (9th Cir. 2011);
accord Parsons v. Ryan, 754 F.3d 657, 674 (9th Cir. 2014).
23 does not set forth a mere pleading standard.

“Rule

A party seeking

class certification must affirmatively demonstrate his compliance
with the Rule--that is, he must be prepared to prove that there

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are in fact sufficiently numerous parties, common questions of
law or fact, etc.”

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.

2541, 2551 (2011) (emphasis in original).

Analyzing whether Rule

23’s prerequisites have been met will “frequently entail overlap
with the merits of the plaintiff’s underlying claim . . .
[because] class determination generally involves considerations
that are enmeshed in the factual and legal issues comprising the
plaintiff’s cause of action.”

Comcast Corp. v. Behrend, 133 S.

Ct. 1426, 1432 (2013) (quotation marks and citations omitted).
“[C]ertification is proper only if the trial court is satisfied,
after a rigorous analysis, that the prerequisites of Rule 23(a)
have been satisfied.”

Wal-Mart, 131 S. Ct. at 2551 (quotation

marks and citation omitted).
A.

The Proposed Class Definition is Overbroad.

FACE seeks certification of the following class for
injunctive relief under Rule 23(b)(2) of the Federal Rules of
Civil Procedure:
all persons in the State of Hawai`i, who,
because of their Limited English Proficiency
and/or national origins, who were, are, or
will be improperly denied meaningful, timely
and accurate oral and written language access
in their efforts to obtain driver’s licenses
from the Hawai`i Department of
Transportation.
See ECF No. 148-1, PageID # 2488.
This proposed class definition mistakenly uses the word
“who” twice.

Even if the court ignores the second such usage,
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the proposed class definition is overbroad; it includes claims
that are not included in the First Amended Complaint.

That is,

the scope of the proposed class is not limited to the time-frame
applicable to the First Amended Complaint and includes persons
who fall outside the scope of what is asserted in the First
Amended Complaint.

For example, the First Amended Complaint

alleges that HDOT stopped providing translated written driver’s
license exams in 2009.

However, the proposed class definition

could be read as asserting claims before that date.

Similarly,

the First Amended Complaint asserts claims of national origin
discrimination in violation of 42 U.S.C. §§ 1983 and 2000d.

But

a fourth-generation United States citizen who has limited English
proficiency would be included in the proposed class even if his
or her inability to pass the written driver’s license examination
was due to a lack of English proficiency and not to national
origin discrimination.
The proposed class is not “sufficiently definite so
that it is administratively feasible for the court to determine
whether a particular individual is a member.”

7A Charles Alan

Wright, Arthur R. Miller, Mary Kay Kane, Fed. Practice & Proc. §
1760 (3d ed 2005).

Instead, it is “defined so broadly that it

encompasses individuals who have little connection with the claim
being litigated.”

Id.

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Although the court could be proactive and itself
suggest a definition of the class, it does not do so.

Because

FACE, in any event, fails to satisfy some of the requirements of
Rule 23 of the Federal Rules of Civil Procedure, certification is
unwarranted.
B.

FACE Does Not Satisfy Rule 23.

FACE has “the burden of demonstrating that [it] has met
each of the four requirements of Rule 23(a) and at least one of
the requirements of Rule 23(b).”

Zinser v. Accufix Research

Inst., Inc., 253 F.3d 1180 (9th Cir. 2001).

FACE seeks

certification under Rule 23(b)(2) of the Federal Rules of Civil
Procedure, which states:
A class action may be maintained if Rule
23(a) is satisfied and if:
. . . .
(2) 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[.]
Rule 23(a) states:
One or more members of a class may sue or be
sued as representative parties on behalf of
all 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;

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(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).
A class action is an exception to the rule that
“litigation is conducted by and on behalf of the individual named
parties only.”

Wal-Mart, 131 S. Ct. at 2550 (quotation marks and

citation omitted).

To justify any departure from that rule, the

class representative must be part of the class and have the same
interest and injury as the class members.

Id.

“Rule 23(a)

ensures that the named plaintiffs are appropriate representatives
of the class whose claims they wish to litigate.

The Rule’s four

requirements—numerosity, commonality, typicality, and adequate
representation—effectively limit the class claims to those fairly
encompassed by the named plaintiff’s claims.”
1.

Id.

Numerosity.

Rule 23’s numerosity requirement is satisfied when “the
class is so large that joinder of all members is impracticable.”
Fed. R. Civ. P. 23(a)(1).

“Although the absolute number of class

members is not the sole determining factor, where a class is
large in numbers, joinder will usually be impracticable.”

Jordan

v. Los Angeles Cnty., 669 F.2d 1311, 1319 (9th Cir. 1982).
“[G]enerally, courts will find that the numerosity requirement

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has been satisfied when the class compr[ises] 40 or more members
and will find that it has not been satisfied when the class
comprises 21 or fewer.”

McCluskey v. Trustees of Red Dot Corp.

Employee Stock Ownership Plan & Trust, 268 F.R.D. 670, 674 (W.D.
Wash. 2010) (internal quotation omitted) (surveying cases).
However, a class may be certified even when the exact membership
of the class is not immediately ascertainable, as long as
plaintiffs demonstrate that it is large enough that joinder is
impracticable.

See, e.g., McMillon v. Hawaii, 261 F.R.D. 536,

542 (D. Haw. 2009) (“Courts need not determine the exact size of
a class in order to find numerosity satisfied.”).
A court should “rely on ‘common sense’ to forgo precise
calculations and exact numbers” when a plaintiff “show[s]
sufficient circumstantial evidence specific to the products,
problems, parties, and geographic areas actually covered by the
class definition to allow [the court] to make a factual finding.”
Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 596 (3d Cir. 2012).
As noted in the court’s order of February 23, 2015, according to
an e-mail from Rey Domingo of HDOT, 4,199 foreign language exams
were administered in the City and County of Honolulu in 2007.
See ECF No. 135-10, PageID # 2273; see also ECF No. 135-13,
PageID # 2289 (indicating that 4,177 non-English tests were
administered in 2007).

FACE argues that, when HDOT stopped

providing translated written driver’s license exams, it

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intentionally discriminated against people based on their
national origins.

Given the number of translated tests

administered in the City and County of Honolulu alone in 2007,
the court infers that the numerosity requirement is satisfied
even though the court lacks an exact number of persons denied the
opportunity to take a translated version of the written driver’s
license exam.
2.

Commonality.

“Commonality exists where class members’ situations
share a common issue of law or fact, and are sufficiently
parallel to insure a vigorous and full presentation of all claims
for relief.”

Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d

1168, 1172 (9th Cir. 2010).

Not “every question of law or fact

must be common to the class; all that Rule 23(a)(2) requires is a
single significant question of law or fact.”

Abdullah v. U.S.

Sec. Associates, Inc., 731 F.3d 952, 957 (9th Cir. 2013)
(internal quotation omitted).
The Supreme Court explained,
Commonality requires the plaintiff to
demonstrate that the class members “have
suffered the same injury[.]” This does not
mean merely that they have all suffered a
violation of the same provision of law.
Title VII, for example, can be violated in
many ways--by intentional discrimination, or
by hiring and promotion criteria that result
in disparate impact, and by the use of these
practices on the part of many different
superiors in a single company. Quite
obviously, the mere claim by employees of the
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same company that they have suffered a Title
VII injury, or even a disparate-impact Title
VII injury, gives no cause to believe that
all their claims can productively be
litigated at once. Their claims must depend
upon a common contention—for example, the
assertion of discriminatory bias on the part
of the same supervisor. That common
contention, moreover, must be 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.
Wal-Mart, 131 S. Ct. at 2551 (citation omitted).
“What 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.

Dissimilarities within the

proposed class are what have the potential to impede the
generation of common answers.”

Id. (quotation marks,

alterations, and citations omitted).

In other words, plaintiffs

seeking class certification must demonstrate that class members
have suffered the same injury, not merely violations of the same
law.

See Parsons, 754 F.3d at 674-75.

“So long as there is even

a single common question, a would-be class can satisfy the
commonality requirement of Rule 23(a)(2).”

Id. at 675 (quotation

marks and citation omitted).
FACE’s claims do not meet the commonality requirement.
In its motion, FACE argued:

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there are overarching legal issues that apply
to all class members namely, whether HDOT
engaged in national origin discrimination in
violation of Title VI when it reverted to an
English only policy in 2008, refused to
reinstate written translations for 5½ years,
and continues to refuse to provide
interpretation of the road portion of the
driver’s exam.
ECF No. 148-1, PageID # 2494.

But in its Reply and at the

hearing on the motion, FACE argued that this case is about
whether a driver’s license is a “vital document.”

Local Rule 7.4

prohibits this kind of shifting theory, as it is patently unfair
to nonmoving parties.

Local Rule 7.4 states, “A reply must

respond only to arguments raised in the opposition.

Any argument

raised for the first time in the reply shall be disregarded.”
At most, FACE’s motion mentions “vital documents” in a
historical context: “The Language Access Law required State
agencies to provide free oral language services (interpretation),
to translate vital documents, and to provide free written
language services (translation).”

ECF No. 148-1, PageID # 2485.

This statement did not provide notice that FACE was relying on a
“vital documents” rationale in positing commonality.

FACE could

have moved for a determination as a matter of law that a driver’s
license is a “vital document.”

That did not occur.

FACE cannot

place this issue before the court by belatedly raising it in its
Reply in support of its motion for class certification.

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Turning to the arguments that were indeed raised by
FACE’s moving papers, the court notes that FACE as an
organization will presumably not be a class member.

The court

therefore looks at whether Kovac’s situation is common to class
members.

Notwithstanding the general assertion that HDOT

intentionally discriminated against LEP persons based on their
national origins by failing to provide translated driver’s
license exams, the court does not view Kovac’s claims as
sufficiently like the claims of other purported class members or
as indicating that he shares any question in common with class
members.

For example, Kovac asserts intentional discrimination

arising out of a more than five-year delay in providing
translated written driver’s license exams after one, easily
translatable question was added to the previously translated
exam.

Had Kovac spoken one of the languages that the exam was

previously translated into and had he suffered a more than fiveyear delay in reinstatement of the translated exam, he might be
said to have a question in common with the speakers of those
languages.

But Kovac speaks Chuukese, which the written driver’s

license exam was not previously translated into.

Thus, with

respect to Kovac, any claim of discrimination relating to a delay
of more than five years would require an examination of whether
the exam should have been translated into Chuukese even before
that single question was added.

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As the court noted in its order of February 23, 2015,
HDOT has taken the position that it was not required to translate
the written driver’s license exam into Chuukese.

See ECF No.

154, PageID # 2600 (citing Decl. of Clifton Harty ¶ 9, PageID #s
1839-40).

Absent a demonstration that HDOT was required to

translate the exam into Kovac’s language, it cannot be said that
HDOT’s refusal to provide translated exams was discrimination
that Kovac suffered in common with all LEP persons.

Kovac’s

situation is also distinguishable from the situations of those
who speak languages that the written driver’s license exam is
even now not offered in.
The fact that Kovac failed the written driver’s license
exam means that he has not qualified to sign up to take the
practical exam or road test.

Accordingly, to the extent the

First Amended Complaint purports to encompass a claim that HDOT
has intentionally discriminated against individuals taking the
practical driver’s license exam by failing to allow them to have
a translator present during the road test, Kovac lacks standing
to assert that claim, not having suffered that form of alleged
discrimination at all.

See Hawkins v. Comparet-Cassani, 251 F.3d

1230, 1238 (9th Cir. 2001) (“A named plaintiff cannot represent a
class alleging . . . claims that the named plaintiff does not
have standing to raise.”).

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It may well be that the claims in this action are the
type amenable to class litigation.

Kovac, however, is not a

proper class representative given the circumstances in the
record.
3.

Typicality.

“[R]epresentative claims are ‘typical’ if they are
reasonably co-extensive with those of absent class members; they
need not be substantially identical.”

Hanlon, 150 F.3d at 1020.

However, a plaintiff’s motion for class certification should not
be granted when there is a danger that absent class members will
suffer because their representative is preoccupied with defenses
unique to the representative.

See Ellis v. Costco Wholesale

Corp., 657 F.3d 970, 984 (9th Cir. 2011).

The Ninth Circuit has

noted that “commonality and typicality requirements of FRCP 23(a)
tend to merge.”

Meyer v. Portfolio Recovery Assocs., LLC, 707

F.3d 1036, 1041 (9th Cir. 2012).

“Both serve as guideposts for

determining whether under the particular circumstances
maintenance of a class action is economical and whether the named
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.”

Gen. Tel. Co. of S.W. v. Falcon,

457 U.S. 147, 158 n.13.
Typicality, however, derives its independent legal
significance from its ability to “screen out class actions in

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which the legal or factual position of the representatives is
markedly different from that of other members of the class even
though common issues of law or fact are present.”

7A Charles

Alan Wright, Arthur R. Miller, Mary Kay Kane, Fed. Practice &
Proc. § 1764 (3d ed 2005).

Kovac’s claims do not meet the

typicality prong.
Kovac’s need to demonstrate entitlement to a translated
exam concerns a matter not applicable to numerous other purported
class members.

Additionally, Kovac’s failure to pass the

translated exam when he took it recently raises the question of
whether Kovac lacks the requisite knowledge of laws and
regulations to pass the exam.

Kovac’s unique background and

factual situation require him to address defenses not typical of
defenses that may be raised against other purported class
members.
4.

Adequacy.

A class representative must fairly and adequately
protect the interests of the class.

Fed. R. Civ. P. 23(a)(4).

With respect to the adequacy of a class representative, the Ninth
Circuit says that “courts must resolve two questions: (1) do the
named plaintiffs and their counsel have any conflicts of interest
with other class members and (2) will the named plaintiffs and
their counsel prosecute the action vigorously on behalf of the
class?”

Ellis, 657 F.3d at 985 (quotation marks and citation

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omitted).

At first blush, it appears that Kovac satisfies the

adequacy prong.

Kovac is represented by qualified counsel and

appears able to prosecute this action without conflicts.
However, Kovac’s inability to date to pass a translated version
of the written driver’s license exam not only raises a special
factual issue that may distract from common questions, it may
also mean that Kovac lacks standing to represent certain class
members who have suffered injuries he did not suffer.

The same

is true if HDOT was not required to translate the exam into
Chuukese.
C.

Rule 23(b)(2).

FACE seeks certification under Rule 23(b)(2) of the
Federal Rules of Civil Procedure, which allows a class action to
be maintained if Rule 23(a) is satisfied and “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[.]”
The Supreme Court has explained,
The key to the (b)(2) class is the
indivisible nature of the injunctive or
declaratory remedy warranted—the notion that
the conduct is such that it can be enjoined
or declared unlawful only as to all of the
class members or as to none of them. . . .
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. It does not authorize class
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certification when each individual class
member would be entitled to a different
injunction or declaratory judgment against
the defendant. Similarly, it does not
authorize class certification when each class
member would be entitled to an individualized
award of monetary damages.
Wal-Mart, 131 S. Ct. at 2557.

“Civil rights cases against

parties charged with unlawful, class-based discrimination are
prime examples” of what Rule 23(b)(2) is designed to reach.
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).
In its motion, FACE contends that it meets Rule
23(b)(2) because:
HDOT’s unilateral and universal
discontinuation of the translated written
examinations, its inability to provide timely
translations of a single question for 5½
years, and its current blanket prohibition on
oral interpretation of the road portion of
the driver’s examination are generally
applicable to the class as a whole.
As the only named class representative, Kovac speaks a language
that the written driver’s license exam was not originally
translated into.

This makes any reference to a delay of five and

a half years in translating one question at least arguably
irrelevant to him.

Additionally, Kovac has not attempted to take

the practical portion or road test and so has not been subjected
to any alleged discrimination in that regard.

There may well be

class-wide injunctive relief that could be warranted.

However,

given the lack of a good class definition and an appropriate

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class representative, the court cannot say that such class-wide
injunctive relief has been shown to be appropriate.
The written driver’s license exam is now being offered
in various translations.

Thus, any request for injunctive relief

would presumably be seeking to prevent HDOT from ending its
practice of offering translated exams.
V.

CONCLUSION.
The court denies the present motion for class

certification.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 20, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Faith Action For Community Equity; Tochiro Kochiro Kovac, individually and on behalf of
a class of persons in the State of Hawaii who, because of their national origins, have
limited English proficiency v. State of Hawaii; Hawaii Department of Transportation;
Glenn Okimoto, in his official capacity; Civ. No. 13-00450 SOM/RLP; ORDER DENYING
MOTION TO CERTIFY CLASS UNDER RULE 23(B)(2) OF THE FEDERAL RULES OF CIVIL PROCEDURE

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