HIZER v. PULASKI COUNTY, INDIANA
OPINION AND ORDER: The Court GRANTS 23 MOTION to Submit Evidentiary Material in Support of Motion for Class Certification by Plaintiff Emily Hizer. GRANTS 4 Motion to Certify Class by Plaintiff Emily Hizer; ORDERS that this case be certified as a class action with the class defined as stated in Section II.B.7; and APPOINTS Kenneth Falk of the ACLU of Indiana as class counsel. The Court DIRECTS the parties to meet and confer in order to draft a proposed notice of certification and to subm it said proposed notice to the Court for its review and approval within thirty (30) days of this Order. No notice of certification shall be issued to any class members prior to having its contents approved by the Court. Signed by Judge Jon E DeGuilio on 9/11/2017. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
EMILY HIZER, on behalf of herself
and on behalf of a class of those similarly
PULASKI COUNTY, INDIANA,
Case No. 3:16-CV-885-JD-MGG
OPINION AND ORDER
This matter is before the Court on a Motion for Class Certification filed by Plaintiff
Emily Hizer (“Plaintiff”). [DE 4] Defendant Pulaski County (“Defendant”) does not oppose
certification of the Plaintiff’s proposed class. [DE 20] Also pending is Plaintiff’s Motion to
Submit Evidentiary Material in support of her Motion for Class Certification. [DE 23]
Plaintiff’s Motion to Submit Evidentiary Material is granted as unopposed. As to the Motion for
Class Certification, for the reasons stated herein, the Court will grant the Motion, approve the
Proposed Class, and appoint class counsel. The Court will lastly direct the parties to submit a
proposed notice to class members for review and approval.
Plaintiff presents a claims on her own behalf, and on the behalf of those similarly
situated, for a violation of both the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §
12131, et seq., and the Rehabilitation Act, 29 U.S.C. § 794. [DE 1 ¶¶ 1, 89] The Pulaski County
Courthouse is a three-story building located in the county seat of Winamac, Indiana. [DE 1 ¶¶
24-25] The first floor of the Courthouse includes the offices of the County Assessor and County
Surveyor, the second floor of the Courthouse holds the offices of the County Auditor, County
Treasurer, and the Clerk of the Courts, and the third floor of the Courthouse houses the Pulaski
Circuit Court, including its offices and the courtroom. Id. ¶¶ 25-26, 29. The Pulaski County
Commissioners also meet several times per month on the third floor of the Courthouse. Id. ¶¶
The floors of the Pulaski County Courthouse are connected by a stairway as well as an
elevator. Id. ¶ 30. The elevator’s dimensions measure approximately 3 feet by 4 feet, and it
requires manual operation by way of holding a button to make it move up or down. Id. ¶¶ 37,
41. The elevator does not contain an automatic door and instead must be opened manually. Id.
The Courthouse’s public restrooms are located on the first floor. Id. ¶ 58. Plaintiff
alleges that the entrances to these restrooms are not wide enough for a person in a wheelchair to
be able to enter them, nor are the stalls in the restrooms large enough for a person with a physical
disability to maneuver within. Id. ¶¶ 59, 61.
Plaintiff allegedly lives in Winamac, Indiana, and has multiple sclerosis, which requires
her to use a motorized scooter for mobility. Id. ¶¶ 63, 65-66. For various reasons, Plaintiff
alleges that she is frequently required to visit the Courthouse: she works as a legal assistant for
her father, which necessitates her access to the Clerk’s office and other parts of the Courthouse;
and she sits on the ADA Board, which meets regularly on the first floor of the Courthouse. Id.
¶¶ 67-71. Based on her physical condition and the structural characteristics of the Courthouse’s
elevator and public restrooms, Plaintiff alleges that she has great difficulty in accessing the
government services provided at the Courthouse and that other persons with physical disabilities
experience the same issue. Id. ¶ 1.
This Court has jurisdiction over Plaintiff’s claims under 28 U.S.C. § 1331.
Rule 23 of the Federal Rules of Civil Procedure governs the certification of class actions
in federal court. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, 2548, 180 L.
Ed. 2d 374 (2011). Rule 23(a) ensures that the named plaintiffs are appropriate representatives
of the class whose claims they wish to litigate. Id. at 2550. Rule 23(a)’s four requirements—
numerosity, commonality, typicality, and adequacy—effectively limit the class claims to those
fairly encompassed by the named plaintiff’s claims. Id. (citations and internal quotations
omitted). If all of these prerequisites are met, a court must also find that at least one of the
subsections of Rule 23(b) is satisfied. In this case, Plaintiff seeks class certification under Rule
23(b)(2). Rule 23(b)(2) applies when “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.”
“Failure to meet any of the Rule’s requirements precludes class certification.” Arreola v.
Godinez, 546 F.3d 788, 794 (7th Cir. 2008). The Plaintiff, as the party seeking class
certification, assumes the burden of demonstrating that certification is appropriate. Trotter v.
Klincar, 748 F.2d 1177, 1184 (7th Cir. 1984); Dukes, 131 S. Ct. at 2551 (“A party seeking class
certification must affirmatively demonstrate his compliance with the Rule—that is, he must be
prepared to prove that there are in fact sufficiently numerous parties, common questions of law
or fact, etc.”).
A district court has broad discretion to determine whether certification of a class action
lawsuit is appropriate. Arreola, 546 F.3d at 794. The United States Supreme Court has made
clear, however, that the district court is to perform a “rigorous analysis” to determine that the
prerequisites of Rule 23 are satisfied when a class is to be certified because actual, not presumed,
conformance with Rule 23(a) remains indispensable. Dukes, 131 S. Ct. at 2551–52 (citing Gen.
Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160–61 (1982)). Frequently, that “rigorous analysis”
will entail some overlap with the merits of the plaintiff’s underlying claim, and this cannot be
helped. Id. (noting that sometimes Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), is
mistakenly cited for the proposition that the merits of the claims for relief may not be considered
in adjudicating the motion for class certification, and clarifying that such a proposition is “the
purest dictum and is contradicted by other cases”). The purpose of the “rigorous analysis” is not
to test the merits of the claim, however, but to determine whether the claim meets the
requirements of Rule 23(a). See Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 677 (7th Cir.
2001). “In conducting this analysis, the court should not turn the class certification proceedings
into a dress rehearsal for the trial on the merits.” Messner v. Northshore Univ. Healthsys., 669
F.3d 802, 811 (7th Cir. 2012). However, “[i]f there are material factual disputes, the court must
‘receive evidence . . . and resolve the disputes before deciding whether to certify the class.’” Id.
(alteration in original) (citing Szabo, 249 F.3d at 676).
Importantly, a district court must conduct its own independent inquiry under the
“rigorous analysis” standard even where, as here, neither party opposes certification. See
Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 725 F.3d 1213, 1217, 1219
(10th Cir. 2013) (district court has independent obligation to conduct rigorous analysis to
determine whether requirements of both Fed. R. Civ. P. 23(a) and (b) have been met); Valley
Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1188 (11th Cir. 2003) (district court abused
its discretion when it failed to make complete independent inquiry, and wrongly certified class
after finding only that defendants had “not seriously contested” that plaintiff had met
requirements of Fed. R. Civ. P. 23(a)).
The Rule 23 analysis is distinct from the issue of standing, however. “That a suit may be
a class action … adds nothing to the question of standing, for even named plaintiffs who
represent a class ‘must allege and show that they personally have been injured, not that injury
has been suffered by other, unidentified members of the class to which they belong.’” Simon v.
Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 40 n. 20, 96 S. Ct. 1917, 48 L. Ed. 2d
450 (1976) (quoting Warth v. Seldin, 422 U.S. 490, 502, 95 S. Ct. 2197 (1975)); see also Herbert
Newberg et al., Newberg on Class Actions § 3:15 (5th ed. 2012) (“[S]tanding is one of the keys
necessary to open the door to the federal courthouse. Rule 23 merely provides a procedural
doorstop which holds the door open for qualified class members, once it has been opened by the
person or persons initially seeking entry.”) (citations omitted). But, while standing is a
prerequisite for the named Plaintiff, the passive class action members (once the lawsuit is
certified as such), “need not make any individual showing of standing because the standing issue
focuses on whether the named plaintiff is properly before the court, not whether represented
parties or absent class members are properly before the Court.” Newberg § 2:3.
Just like any other individual, a class representative’s standing is measured by the test
articulated in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351
(1992). Plaintiff must demonstrate that she (1) has suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision. Id., at 560-61, 112 S. Ct. 2130. Here, Plaintiff has sufficiently
alleged standing. Plaintiff suffers from a physical disability. Her job as a legal assistant and her
involvement on the County’s ADA Board require her to frequently visit the Courthouse, and she
is therefore repeatedly subjected to embarrassment and an enhanced burden when having to
manage the Courthouse’s allegedly inaccessible features, namely the elevator and public
restrooms. [DE 1 ¶¶ 65-72]
Because Plaintiff has standing to sue, the Court now turns to the issue of certification.
Rule 23(a) sets four requirements: numerosity, commonality, typicality, and adequacy of
representation. “A party seeking class certification must affirmatively demonstrate his
compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently
numerous parties, common questions of law or fact, etc.” Dukes, 131 S. Ct. at 2551. As
discussed above, the Court is to perform a “rigorous analysis” to determine that the prerequisites
of Rule 23 are satisfied when a class is to be certified because actual, not presumed, conformance
with Rule 23(a) remains indispensable. Id. at 2551–52 (citing Gen. Tel. Co. of Sw. v. Falcon,
457 U.S. 147, 160–61 (1982)). Frequently, that “rigorous analysis” will entail some overlap with
the merits of the plaintiff’s underlying claim, and this cannot be helped. Id. A district court has
broad discretion to determine whether certification of a class action lawsuit is appropriate.
Arreola, 546 F.3d at 794.
Here, Plaintiff seeks to certify the following class (the “Proposed Class”):
[A]ll persons with mobility impairments or other physical disabilities who access
or attempt to access, or who will access or will attempt to access, the Pulaski
[DE 4 at 1] In order for the Court to certify the Proposed Class, Plaintiff must establish that each
of the four Rule 23(a) elements has been met and that at least one of the Rule 23(b) elements has
been satisfied. In addition, the Seventh Circuit “and other courts have long recognized an
implicit requirement under Rule 23 that a class must be defined clearly and that membership be
defined by objective criteria rather than by, for example, a class member’s state of mind.”
Mullins v. Direct Digital, LLC, 795 F.3d 654, 657 (7th Cir. 2015), cert. denied, 136 S. Ct. 1161
(2016). To apply this “ascertainability standard,” the Court must ensure “that the class definition
satisf[ies] the established meaning of ascertainability by defining classes early and with objective
criteria.” Id. at 672.
Accordingly, the Court now turns to examine the Proposed Class under Rule 23.
The ascertainability requirement does not mean that all members of a class must be
identifiable at the time of certification. Id. at 662-72 (rejecting a “heightened ascertainability”
standard). “If the general outlines of the membership of the class are determinable at the outset
of the litigation, a class will be deemed to exist.” 7A Wright & Miller, Federal Practice and
Procedure § 1760 (3d ed.).
Here, the class meets the requirement that it be ascertainable. The class is defined using
objective criteria – persons with mobility impairments or other physical impairments who are
attempting, or who will attempt, to access the Pulaski County Courthouse. See, e.g., Matamoros
v. Starbucks Corp., 699 F.3d 129, 139 (1st Cir. 2012) (“The class is ascertainable under the
objective standard of job titles and includes those who worked as baristas during the class period.
The presence of such an objective criterion overcomes the claim that the class is
Plaintiff outlines in her complaint the ways that the Courthouse is allegedly not
accessible due to the layout of its restrooms and elevator. These are impediments that will be
burdensome to many persons who are mobility impaired and who have other physical
Rule 23(a)(1): Numerosity
The first requirement under Rule 23(a) is that the purported class be “so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). To be impracticable, joinder
need not be impossible, but instead must be shown to be inconvenient and difficult. See
Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993); Gomez v. Illinois State Bd. of Ed., 117
F.R.D. 394, 398–99 (N.D. Ill. 1987). When determining if joinder of all class members is
impracticable, courts often consider many factors, including: the class size; judicial economy
arising from the avoidance of a multiplicity of actions; the ease of identification of members of
the proposed class; the geographic dispersion of class members; the size of each plaintiff’s claim;
the financial resources of the class members; the ability of claimants to institute individual suits;
any requests for prospective injunctive relief which would involve future class members; and any
other factors relevant to the practicability of joining all the class members. Alba Conte & Herbert
Newberg, Newberg on Class Actions § 3:6 (2002 & Supp. 2011); see also Gomez, 117 F.R.D. at
399 (listing some similar factors). “Mere speculation” and “conclusory allegations” of the class
size will not support a finding that joinder is impractical. Arreola, 546 F.3d at 797; Marcial v.
Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989). A court must rely on simple common sense
when determining whether a class size meets the numerosity requirement. See Flood v.
Dominguez, 270 F.R.D. 413, 417 (N.D. Ind. 2010) (citing Redmon v. Uncle Julio’s of Ill., Inc.,
249 F.R.D. 290, 294 (N.D. Ill. 2008)).
The Proposed Class in this case consists of persons with physical disabilities who access
or attempt to access the Courthouse, or who will attempt to do so in the future. Even without
taking into account those who will attempt to access the Courthouse in the future, Plaintiff
maintains that, at this time, the exact size of the Proposed Class is uncertain and it may be
impossible, even after discovery, to identify the exact number of persons in the class. However,
as an active member of the disability community in Pulaski County, and as a member of the
County’s ADA Board, Plaintiff is personally aware of “many persons with physical disabilities
who are not able to access or readily access the Courthouse because of the elevator and the
bathrooms and the accessibility problems they pose.” [DE 5-1 ¶¶ 8, 12]
To demonstrate numerosity, Plaintiff attaches her own affidavit in which she describes
herself as a member of the Proposed Class based on her multiple sclerosis diagnosis and her
experiences attempting to access the Courthouse. [DE 5-1] She also knows of at least two
physically disabled individuals who have had difficulty accessing the Courthouse [DE 5-1 ¶ 13],
and further submits several affidavits that describe the difficulties encountered by five disabled
persons attempting to access the Courthouse – although, it is not clear whether any of these five
affidavits describe the same persons noted by Plaintiff in her own affidavit. [DE 23-1; 23-2; 233; 23-4; 23-5] Plaintiff also notes that, in the past, she has run a support group for persons with
multiple sclerosis, approximately 60 of whom were from Pulaski County. [DE 5-1 ¶ 15]
According to Plaintiff, many of these people “have mobility impairments because of the disease
and would have difficulty accessing or fully accessing the [Courthouse] because of the elevator
and restrooms.” Id.
To buttress the affidavits, Plaintiff submits statistical data from the United States Census
Bureau and a 2014 status report from Cornell University on the prevalence of disabilities in
Indiana. [DE 5-2; 5-3] As of July 1, 2015, the population of Pulaski County was 12,899. [DE
5-2] In 2014 the overall prevalence of disability in Indiana for institutionalized persons was
12.6% for persons aged 21 to 64, 27.2% for persons aged 65 to 74, and 51.8% for persons aged
75 or older. [DE 5-3] Persons with ambulatory difficulties were the largest percentage of noninstitutionalized persons in Indiana with disabilities over the age of 21. Id. Among all ages of
non-institutionalized persons in Indiana, 7.8% of the population reported having an ambulatory
disability alone. Id. Plaintiff argues that these statewide statistics can be can be applied to
Pulaski County, and she estimates that more than 1,000 people would have difficulty accessing
the Courthouse. [DE 5 at 5] Granted, this use of the statewide statistical data does not account
for the possibility that Pulaski County has a lower percentage of persons with ambulatory
disabilities than the statewide figure, but it also does not take into account persons living outside
of Pulaski County who still need to access the Courthouse, nor does it include persons with nonambulatory physical disabilities.
“It is well settled that a plaintiff need not allege the exact number or specific identity of
proposed class members.” Newberg § 3:15 (citing Phipps v. Sheriff of Cook Cnty., 249 F.R.D.
298, 300 (N.D. Ill. 2008) (stating that the plaintiffs were “not required to allege the exact number
of identify [sic] of the class members” and accepting the plaintiffs’ estimate of the size of the
class of wheelchair bound inmates who had been housed at the Cook County Correctional
Department)). That said, a district court may examine statistical data and then draw inferences
from the facts to determine whether the numerosity requirement has been met.” Pottinger v. City
of Miami, 720 F. Supp. 955, 958 (S.D. Fla. 1989). Several courts have taken census and
statistical data into account when evaluating the numerosity requirement of Rule 23(a), and the
Court will likewise consider the statistical estimates provided by Plaintiff. See Brooklyn Ctr. for
Independence of the Disabled v. Bloomberg, 290 F.R.D. 409, 413, 418 (S.D.N.Y. 2012)
(granting class certification where numerosity determined by census estimate of the number of
persons with disabilities in New York City); Kerrigan v. Philadelphia Bd. of Election, 248
F.R.D. 470, 473-74 (E.D. Pa. 2008) (finding numerosity where named plaintiffs provided a good
faith estimate of size of class of county voters with ambulatory disabilities); Assoc. for Disabled
Americans, Inc. v. Amoco Oil Co., 211 F.R.D. 457, 473 n.15 (S.D. Fla. 2002) (finding
numerosity requirement satisfied by census figures in ADA action).
As noted above, Plaintiff’s Proposed Class also includes “all persons with mobility
impairments … who will access or will attempt to access” the Courthouse. [DE 1 ¶ 9] (emphasis
added). These are “prospective” class members. Prospective class members are individuals
whose claims may not yet have manifested themselves, such as, for example, “individuals who
may work at a particular workplace or inhabit an institution (such as a jail or hospital) at a later
time.” Newberg § 3:15. But, the inclusion of these prospective class members does not cut
against class certification; indeed, their presence may have a tendency to make certification
more, not less, likely. See id. Indeed, prospective class members are difficult to count, and so
courts generally relax the numerosity requirement “due to the difficulty in determining the
number and identity of these future claimants.” Id. (citing Seuoka v. U.S., 101 Fed. Appx. 649,
653 (9th Cir. 2004); J.D. v. Nagin, 225 F.R.D. 406, 414 (E.D. La. 2009); Hawker v. Consovoy,
198 F.R.D. 619, 625 (D.N.J. 2001)). The Court agrees that the inclusion of prospective class
members weighs in favor of numerosity.
In Rosario v. Cook Cnty., 101 F.R.D. 659, 661 (N.D. Ill. 1983), the court determined that
the nature of the relief, a declaration regarding the defendant’s promotion procedures, and an
injunction against continued use of certain procedures, would “necessarily affect the interests of
future Hispanic applicants for sergeant.” See Valenti v. Hartford City, Indiana, No. 1:15-CV-63TLS, 2016 WL 5662097, at *4 (N.D. Oct. 3, 2016) (quoting 101 F.R.D. at 661). “Regardless of
their number, the joinder of future alleged discriminatees is inherently impracticable.” Rosario,
101 F.R.D. at 661. The same is true here with respect to persons with mobility impairments who
attempt to access the Courthouse in the future. The relief sought, declaratory and injunctive
relief, would impact future class members, and “[s]uch future members make joinder inherently
impracticable because there is no way to know who they will be.” Olson v. Brown, 284 F.R.D.
298, 408 (N.D. Ind. 2012).
“The Court may use common sense assumptions to support a finding of numerosity.”
Kerrigan, 248 F.R.D. at 474. Plaintiff states that many people with physical disabilities live in
Pulaski County, and the statistics provided indicate that that number may very well be in excess
of 1,000 individuals. Common sense dictates that when a proposed class is this large, “joinder of
all would be impracticable ….” Id. (quoting Stewart v. Assocs. Consumer Disc. Co., 183 F.R.D.
189, 194 (E.D. Pa. 1998)). Therefore, the number of potential class members, as well as the
judicial inefficiency of attempting to try a case with so many individual plaintiffs and future
class members, convinces the Court that the class is so numerous as to make joinder
Rule 23(a)(2): Commonality
The second requirement under Rule 23(a) is that the plaintiff must show that “there are
questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “Where the same
conduct or practice by the same defendant gives rise to the same kind of claims from all class
members, there is a common question.” Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th
Cir. 2014). Claims of individual class members may also be common if they arise from a
“common nucleus of operative fact,” which is usually satisfied where the defendant engaged in
standardized conduct towards members of the proposed class. Keele v. Wexler, 149 F.3d 589,
594 (7th Cir. 1998). Class certification cannot be defeated simply because there are some factual
variances among the proposed members. Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir.
1992); see also Dukes, 131 S. Ct. at 2556.
With respect to the Proposed Class, Plaintiff argues that “[i]n this case all class members
are faced with a courthouse that is not properly accessible.” [DE 5 at 9] Furthermore, Plaintiff’s
allegation that the conditions at the Courthouse violate the ADA and Rehabilitation Act “poses a
question of law that is common to the class. The determination of that contention ‘will resolve an
issue that is central to the validity of each one of the claims in one stroke.’” Valenti, 2016 WL
5662097, at *5 (quoting Dukes, 131 S. Ct. at 2545). Therefore, commonality is established with
respect to the Proposed Class.
Rule 23(a)(3): Typicality
The third requirement under Rule 23(a) is that the plaintiff must show that “the claims or
defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R.
Civ. P. 23(a)(3). A claim is typical if it “arises from the same event or practice or course of
conduct that gives rise to the claims of other class members and . . . are based on the same legal
theory.” Livaditis, 963 F.2d at 1018. Even though some factual variations may not defeat
typicality, the requirement is meant to ensure that the named representative’s claims have the
same essential characteristics as the claims of the class at large. Oshana v. Coca-Cola Co., 472
F.3d 506, 514 (7th Cir. 2006). As the Supreme Court has noted, this requirement is intertwined
with the commonality requirement:
[t]he commonality and typicality requirements of Rule 23(a) tend to merge. 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 inter-related that the interests of the
classmembers will be fairly and adequately protected in their absence.
Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982).
With respect to the Proposed Class, Plaintiff maintains that all putative class members are
affected by the accessibility problems at the Courthouse. Indeed, her “claims have the same
essential characteristics as the claims of the class at large.” De La Fuente v. Stokely-Van Camp,
Inc., 713 F.2d 225, 232 (7th Cir. 1983). Accordingly, it appears that Plaintiff’s claims are typical
of the Proposed Class, in that each of those claims are based on the same legal theory that the
Courthouse’s alleged inaccessibility constitutes a violation of the ADA and the Rehabilitation
Act. Therefore, typicality is established with respect to the Proposed Class.
Rule 23(a)(4): Adequacy of Representation
The final requirement of Rule 23(a) is that “the representative parties will fairly and
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Adequacy of
representation is composed of two parts: “the adequacy of the named plaintiff’s counsel, and the
adequacy of representation provided in protecting the different, separate, and distinct interest” of
the class members. Retired Chicago Police Ass’n v. City of Chi., 7 F.3d 584, 598 (7th Cir.
1993). “A class is not fairly and adequately represented if class members have antagonistic or
conflicting claims.” Livaditis, 963 F.2d at 1018. The class representative’s interest must be such
that she can and will vigorously pursue the class’s interests as well as her own. See, e.g., Streeter
v. Sheriff of Cook Co., 256 F.R.D. 609, 613 (N.D. Ill. 2009). And, counsel for the named
plaintiff must be experienced and qualified and generally be able to conduct the litigation. See
Eggleston v. Chi. Journeymen Plumbers’ Local Union No. 130, 657 F.2d 890, 896 (7th Cir.
The Court finds that Plaintiff is adequate to represent the interests of the Proposed Class.
The claims of Plaintiff are identical to those of the other members of the Proposed Class and
there is no evidence of any unique defense or circumstance that would cause conflict between
Plaintiff and the other members of the Proposed Class. The relief she seeks “is not inconsistent in
any way with the interests of the members of the class.” Jones v. Blinziner, 536 F. Supp. 1181,
1190 (N.D. Ind. 1982). Likewise, due to her frequent need to access the Courthouse, she has a
stake in these proceedings that will “insure diligent and thorough prosecution of the litigation.”
Rodriguez v. Swank, 318 F. Supp. 289, 294 (N.D. Ill. 1970), aff’d, 496 F.2d 1110 (7th Cir. 1974).
With respect to the adequacy of class counsel, the Court agrees that counsel is certainly
skilled and experienced in this type of litigation, and has appeared before this Court in similar
circumstances. Counsel has evidenced his skill in the past by successfully appealing matters
before this Court and following its rules in seeking to certify classes. See, e.g., Olson, 284
F.R.D. at 413. Mr. Falk also personally represents that he is skilled and experienced in this type
of litigation, and that his employer, the ACLU of Indiana, has the resources and ability to
vigorously litigate the matter. [DE 5 at 10] The Court believes that named counsel will work for
the benefit of the proposed class in seeking relief that will protect the rights of class members
both known and to become known. The Court is therefore satisfied that Mr. Falk will be an
adequate representative of the Proposed Class.1
Rule 23(b)(2): Common Grounds for Injunctive and Declaratory
Plaintiff requests that her prayer for declaratory relief be certified under Rule 23(b)(2).
Rule 23(b)(2) covers cases where “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.” See Lemon v. Int’l Union of
Operating Eng’rs, Local No. 139, AFL-CIO, 216 F.3d 577, 580–81 (7th Cir. 2000) (noting that
Rule 23(b)(2) certification does not ensure personal notice or an opportunity to opt out even if
some or all of the plaintiffs pray for monetary damages).
Rule “23(b)(2) is the appropriate rule to enlist when the plaintiffs’ primary goal is not
monetary relief, but rather to require the defendant to do or not do something that would benefit
the whole class.” Chicago Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chicago, 797
F.3d 426, 441 (7th Cir. 2015). Here, Plaintiff is attempting to accomplish the same – to obtain
Plaintiff submitted a proposed order additionally asking that Jan Mensz be named class counsel.
However, Plaintiff did not support this request as to Attorney Mensz in her Motion, and so the Court will
decline to appoint Attorney Mensz as class counsel at this time.
declaratory and injunctive relief that is designed to benefit the whole class. Thus, the Rule
23(b)(2) requirement is met as to the Proposed Class.
Conclusion and Class Certification
Because Plaintiff has demonstrated that certification is appropriate pursuant to Fed. R.
Civ. P Rule 23, the Court ORDERS that this case be certified as a class action. The Court
certifies a class comprised of all persons with mobility impairments or other physical disabilities
who access or attempt to access, or who will access or will attempt to access, the Pulaski County
Courthouse. The class may pursue claims for relief under the ADA, 42 U.S.C. § 12131, et seq.,
and the Rehabilitation Act, 29 U.S.C. § 794. The Court appoints Plaintiff as representative of
this class. Either party may petition the Court for modification of the class definition if
subsequent evidence suggests that the class as defined is inappropriate. Fed. R. Civ. P.
Appointment Of Class Counsel
Rule 23 requires that a court certifying a class also appoint class counsel. Fed. R. Civ. P.
23(c)(1)(B), (g). Class counsel must fairly and adequately represent the interests of the class.
Fed. R. Civ. P. 23(a)(4). In appointing class counsel, the court must consider the following: “the
work counsel has done in identifying or investigating potential claims in the action; counsel’s
experience in handling class actions, other complex litigation, and the types of claims asserted in
the action; counsel’s knowledge of the applicable law; and the resources that counsel will
commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A). The court may also consider
“any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of
the class.” Fed. R. Civ. P. 23(g)(1)(B).
As previously detailed, the Court finds that the Kenneth Falk at the ACLU of Indiana will
fairly and adequately represent the interests of the class. Mr. Falk has reviewed and investigated
the potential claims in this case, represents that he has experience in handling class action
litigation, has knowledge of the law relative to the claim asserted, and has access to the resources
that are necessary to represent the class. Therefore, in compliance with Rule 23(g)(1), and as
requested by Plaintiff, Mr. Falk at the ACLU of Indiana is appointed as class counsel.
In conclusion, the Court hereby GRANTS Plaintiff’s Motion to Submit Evidentiary
Material [DE 23] as unopposed. Furthermore, because Plaintiff has demonstrated that
certification is appropriate pursuant to Fed. R. Civ. P. Rules 23(a) and (b)(2), the Court
GRANTS Plaintiff’s Motion for Class Certification [DE 4]; ORDERS that this case be certified
as a class action with the class defined as stated in Section II.B.7, above; and APPOINTS
Kenneth Falk of the ACLU of Indiana as class counsel. Lastly, the Court DIRECTS the parties
to meet and confer in order to draft a proposed notice of certification and to submit said proposed
notice to the Court for its review and approval within thirty (30) days of this Order. No notice of
certification shall be issued to any class members prior to having its contents approved by the
ENTERED: September 11, 2017
/s/ JON E. DEGUILIO
United States District Court
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