Nelson et al v. Constant et al

Filing 60

OPINION: IT IS ORDERED that Plaintiffs' #2 Motion to Certify Class is DISMISSED WITHOUT PREJUDICE to give the parties additional time to conduct discovery and pursue, in good faith, an amicable resolution, as set forth in document. Parties shall jointly propose agreeable status conference dates to meet with the undersigned no later than October 23, 2018. Signed by Judge Ivan L.R. Lemelle on 9/25/2018. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TAMARA G. NELSON and TIMOTHEA
RICHARDSON, ET AL

CIVIL ACTION

VERSUS

NO. 17-14581

MAYOR BELINDA CONSTANT, ET AL

SECTION “B”(1)

OPINION
Plaintiffs Tamara G. Nelson and Timothea Richardson filed a
“Motion to Certify Class” (Rec. Doc. 2), seeking to certify two
classes of prospective plaintiffs.
FACTS AND PROCEDURAL HISTORY
On

December

complaint

seeking

[p]rotection

05,
to

2017,

Plaintiffs

rectify

violation[s]”

“[d]ue

in

the

filed

a

[p]rocess

Mayor’s

class

action

and

[e]qual

of

Gretna,

Court

Louisiana. 1 Rec. Doc. 1 at 1-2. Specifically, Plaintiffs allege
that the Mayor’s Court is improperly operated by Defendants as a
source of income for the municipality. See id. The fines and fees
that are assessed by the Mayor’s Court fund the City of Gretna,
the

Mayor’s

prosecutors,

Court,
and

and

judges.

the
See

salaries
id.

at

2.

of

police

Defendants

officers,
and

other

officials of the Mayor’s Court, who none of are disinterested or

1

In their Amended Complaint, filed on May 17, 2018, Plaintiffs brought forth
two claims for relief. See Rec. Doc. 28-1 at 16. The first claim is “Due Process
Challenge to the Financial Conflict of Interest in the Mayor’s Court.” Id. The
second claim is “Equal Protection and Due Process Challenge to Gretna’s Deferred
Prosecution Program.” Id. at 17.
1

neutral, are incentivized to maximize arrests and prosecutions.
See id. “A disproportionate number of those arrested are African
American citizens of Gretna.” Id. Plaintiffs further allege that
Defendants target the poor through their Deferred Prosecution
Program 2. See id. at 2-3.
The instant motion seeks to certify two classes of prospective
plaintiffs, Class A and Class B. See Rec. Doc. 2. Class A,
purportedly represented by Plaintiff Nelson, is comprised of “all
persons

with

criminal

prosecutions

pending

before

the

Gretna

Mayor’s Court who are awaiting trial of their criminal or traffic
offenses.” Rec. Doc. 2-1 at 2; see also Rec. Doc. 28-1 at 14. Class
B, purportedly represented by Plaintiff Richardson, is comprised
of “persons who in the past year were denied participation in,
terminated from, or threatened with termination from the Deferred
Prosecution Program due to their inability to pay program fees.”
Rec. Doc. 2-1 at 2; see also Rec. Doc. 28-1 at 15.
On June 20, 2018, this Court held oral argument on the Motion
(Rec. Doc. 2). Since then, pursuant to an Order by this Court (Rec.
Doc.

47),

the

parties

have

completed

limited

discovery

and

submitted additional briefing on legal questions raised at oral

2 This program offers arrestees the option to pay a set fine (usually lower than
the fine that would be imposed upon a finding of guilt) and then have their
charges dismissed. There is no similar option that allows arrestees that are
unable to afford the set fine to have their charges dismiss. As a result,
Plaintiffs allege, those that are least able to pay are sentenced to pay larger
fines and fees.

2

argument, including but not limited to sub-classes, standing,
applicability of Younger, and numerosity. See Rec. Doc. Nos. 50,
51, 52, 54, 55, 56, 59.
Plaintiffs’ Contentions
Plaintiffs contend that they easily satisfy Rule 23(a) and
23(b)(2). See Rec. Doc. 2-1 at 3. The number of class members, for
both classes, range from the hundreds to the thousands. See id. at
4. That number will continue to grow as the Mayor’s Court continues
to hold court sessions. See id. The indeterminate number of future
class

members

makes

joinder

impracticable,

further

satisfying

numerousity. See id. There is a common question as to whether
Defendants are violating the class members’ equal protection and
due

process

rights,

satisfying

commonality.

See

id.

at

9.

Plaintiffs were subjected to the same practices and constitutional
violations as alleged in their complaint for the class members,
satisfying

typicality.

See

id.

at

9-10.

Of

the

two

named

Plaintiffs, one has a case pending before the Mayor’s Court and
the other is a current participant in the Mayor Court’s Deferred
Prosecution, satisfying adequate representation. See id. Their
counsel, MacArthur Justice Center, has experience in litigating
complex

civil

rights

matters,

further

satisfying

adequate

representation. See id. at 11. The relief sought by Plaintiffs for
the class is declaratory or injunctive, satisfying Rule 23(b)(2).
See id. at 12.
3

In their supplemental briefing, Plaintiffs further contend
that they meet the numerousity prong. See Rec. Doc. 51 at 1-2.
Plaintiffs offer more exact numbers 3 and suggest that Class B be
split into two sub-classes. See id. at 2-3. Sub-class B1 consists
of approximately 50 people and sub-class B2 consists of an unknown
number of people because of the shifting of people as new people
are cited and go to trial. See id. at 3. Plaintiffs believe that
this case “must be maintained as a class action because of the
scope of relief sought and to ensure that this Court’s ultimate
orders are enforceable.” Id. at 5. A class action is the only
efficient way to secure relief because a declaration that the
Mayor’s

Court

violates

due

process

will

not

operate

as

an

injunction against the practices of the court and this Court would
have to continuously adjudicate individual cases in the future.
See id.

at 6-7. The availability of declaratory relief does not

weigh against class certification. See Rec. Doc. 59 at 2. Younger
abstention does not apply here because the Mayor’s Court is biased
and there are no ongoing state court proceedings. See Rec. Doc. 51
at 7-8.

3

Through discovery, Plaintiff found that “the city filed 8,962 cases in the
Mayor’s Court in 2017 and 3,965 cases from January 1 to June 30 of [2018].”
Rec. Doc. 51 at 2. Plaintiff also found that approximately 50 people within the
last three years forfeited fees paid into the Deferred Prosecution Program when
they were terminated from the program from failure or inability to make all
payments and approximately 50 people are currently awaiting trial who were
terminated from the program at some point in the past. See id.
4

In

their

reply,

Plaintiffs

clarify

that

their

action

challenges only the Mayor’s Court’s practices not the Lawrason
Act. See id. at 3. Plaintiffs contend that Defendant’s concerns
regarding Class B and its potential sub-classes are unwarranted.
See id. at 2. Defendant’s settlement negotiations and policy
changes are allegations of voluntary cessation and do not serve as
a basis to deny class certification. See id. at 1. This Court will
be able “to quickly and accurately determine membership of Class
B and its potential sub-classes” through financial affidavits. Id.
at 2. Plaintiffs restate that Younger abstention is not applicable
and that this Court should not make a ruling on its applicability
without allowing parties a “full opportunity for discovery.” Id.
at 4-9.
Defendants’ Contentions
(1) Defendants Arthur Lawson, Jr. and Terri Brossette
(“Defendants 1”)
In

their

response,

Defendants

1

contend

that

class

certification should be denied and that jurisdiction over this
matter should be declined. See Rec. Doc. 55 at 15. Defendants 1’s
contentions regarding the denial of class certification focus on
Class B and its sub-classes. For example, the alleged numerousness
of the sub-class may be moot due to settlement negotiations and
policy changes. See id. at 5. Several of Plaintiffs’ requests for
relief are in the process of being remedied or have already been

5

remedied. See id. at 6. Further, the definition that Plaintiffs
offer for Class B is not as fitting as they make it seem because
a class member’s ability to pay requires individual, case-by-case
determination, making it hard for this Court to determine who is
and who is not a member of the class. See id. at 4-6. Lastly, a
class action is not the only method available to Plaintiff to
adjudicate their alleged controversies. See id. at 7. The proper
avenue for Plaintiffs is a declaratory judgment action, without
class certification. See id. at 14-15.
Defendants

1

also

contend

that

Younger

abstention

is

appropriate. See id. at 8. Plaintiffs’ assertion that the Mayor’s
Court is biased does not preclude Younger abstention because
Plaintiffs do not have to file a declaratory judgment action in
the Mayor’s Court. See id. They can also file it in the District
Court as to the constitutionally of the Lawrason Act. See id.
Further, the mayor does not solely appoint court representatives
and the salaries of those representatives are not based on the
number of convictions they obtain. See id.
(2) Defendants Mayor Belinda C. Constant, Magistrate
Raymond A. Osborn, Jr., Magistrate Olden C. Toups, Jr., and
Prosecutor Walter J. LeBlanc (“Defendants 2”)
Defendants 2 adopt all arguments and position advanced by
Defendant 1. See Rec. Doc. 54 at 1. Defendants 2 add that the cases
Plaintiffs use to support their contentions are “inapposite to the
actual structure of Gretna’s Mayor’s Court and the Magistrates who
6

preside over it.” See id. Magistrate Toups and Osborn are salaried
employees so their salaries remain the same regardless of the fines
issued. See id.
LAW AND ANALYSIS
A. Fed. R. Civ. P. 23(a) and 23(b)(2)
District

courts

“maintain[]

substantial

discretion

in

determining whether to certify a class action . . . .” Allison v.
Citgo Petroleum Corp., 151 F.3d 402, 408 (5th Cir. 1998) (citing
Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 471-72 (5th Cir.
1986)). To certify a case as a class action, a plaintiff must
satisfy the four prerequisites of Fed. R. Civ. P. 23(a) and show
that its case fits into one of three class-action type categories
of Fed. R. Civ. P. 23(b). See FED. R. CIV. P. 23.
(1)
The

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

four

commonality,

prerequisites

typicality,

and

of

Rule

adequacy

23(a)
of

are

numerousity,

representation.

Specifically, Rule 23(a) states that a plaintiff must show:
(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.
7

Id.

FED. R. CIV. P. 23(a)(1)-(4).
(a) Numerosity
To satisfy the numerosity prong, a plaintiff must show that
the

class

is

so

numerous

that

joinder

of

all

members

is

impracticable. See FED. R. CIV. P. 23(a)(1). There is no absolute
number. See General Tel. Co. of the Northwest, Inc. v. Equal
Employment Opportunity Commission, 446 U.S. 318 (1980). There must
be an examination of the specific facts of each case. See id.
Plaintiff must offer some evidence as to the reasonable estimate
of the number of purported class members. See Zeidman v. J. Ray
McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir.1981). However,
Plaintiff is not required to offer evidence of exact class member
size or class member identity. See Mullen v. Treasure Chest Casino,
186 F.3d 620 (5th Cir. 1999).
Courts have found that joinder is impracticable when the
proposed class consists of more than forty people. See id. at 624
(citing 1 Newberg on Class Actions § 3.05, at 3-25 (3d ed. 1992))
(suggesting that a class of more than forty “should raise a
presumption that joinder is impracticable”); Boykin v. Ga.-Pac.
Corp.,

706

F.2d

1384,

1386

(5th

Cir.

1983)

(20

members

was

insufficient to meet the numerosity requirement but 317 members
was

sufficient)).

Nonetheless,

“[s]maller

classes

are

less

objectionable where . . . the plaintiff is seeking injunctive
relief on behalf of future class members as well as past and

8

present members.” Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir.
1975) (citations omitted). Plus, “a number of facts other than the
actual or estimated number of purported class members may be
relevant to the ‘numerosity’ question; these include, for example,
the geographical dispersion of the class, the ease with which class
members may be identified, the nature of the action, and the size
of each plaintiff’s claim.” Zeidman, 651 F.2d at 1038 (citations
omitted).
Plaintiffs have satisfied the numerousity prong. There are
over three thousands cases filed in the Mayor’s Court on a yearly
basis. Class A, taking Plaintiffs allegations as true, is comprised
of thousands of class members. Defendants make no argument against
that conclusion. Class B, from the original information alleged,
is comprise of hundreds of class members or, at minimum, several
dozen of class members. From supplemental information, the subclasses of B seem to be comprised of at least 50 class members. 4
Both the classes and the sub-classes contain future members,
frustrating the practicability of joinder.
Even if some of those class members will, in the near future,
vanish because of settlement negotiations, more class members will

4

Defendants contend that it will be administratively unfeasible to determine
membership of Class B’s sub-classes because this Court will have establish which
potential members are actually unable to pay. See Rec. Doc. 55 at 2-5. Plaintiffs
suggest a financial affidavit or some other sworn declaration from each
potential members. See Rec. Doc. 59 at 2. Plaintiffs’ suggestion may work if
the sub-class remains around 50 class members but as the number increases
administrative unfeasibility increases.
9

appear as the Mayor’s Court continues to conduct court sessions.
The contention that new policy changes moot numerousity is not
convincing. See City News and Novelty v. City of Waukesha, 531
U.S. 278, 283 n.1 (2001) (stating that voluntary cessation of a
challenged

practice

rarely

moots

a

federal

case).

Therefore,

Plaintiffs have sufficiently alleged that both the classes and
sub-classes are comprised over forty class members as well as
future members, establishing that joinder is impracticable and
numerousity is met.
(b) Commonality
To satisfy the commonality prong, a plaintiff must show that
there are questions of law or fact common to the class. See FED.
R. CIV. P. 23(a)(2). Specifically, “[c]ommonality 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.” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 349-350 (2011)(quoting Gen.
Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). Rather,
“[t]heir claims must depend upon a common contention . . . [which]
must be of such a nature that it is capable of [class wide]
resolution . . . .” Id. at 350.
Plaintiffs

appear

to

satisfy

the

commonality

prong.

Examples of questions of law or fact that are common to the class
include but are not limited to whether alternatives to monetary
10

payments

are

accepted

for

participation

in

the

Deferred

Prosecution program or for the satisfaction of sentenced fines and
fees; whether the availability of the Deferred Prosecution program
only to those who can afford it is a violation of the Equal
Protection and Due Process clauses of the constitution; and whether
the summary imposition of penalties, without consideration of a
defendant’s financial ability to pay or offering of non-financial
alternatives,

violates

the

Due

Process

and

Equal

Protection

clauses of the Constitution. See Rec. Doc. 28-1 at 15. Plaintiffs
list a total of at least six questions of law or fact common to
all class members in their pleadings. See Rec. Doc. Nos. 28 & 2.
The resolution of those questions will affect all or a significant
number of the class members. However, financial ability to pay
for

program

costs

is

a

common

question

that

may

lead

to

uncommon results due to individualized financial assessments.
(c) Typicality
To satisfy the typicality prong, a plaintiff must show that
the claims or defenses of the representative parties are typical
of the claims or defenses of the class. See FED. R. CIV. P. 23(a)(3).
“The purpose of this requirement is to ensure that the interests
of the class representatives are similar to those of the other
members of the class.” Broussard v. Foti, No. 00-2318, 2001 WL
699525, at *2 (E.D. La. June 18, 2001) (citing Cope v. Duggins,
No. 98-3599, 2000 WL 381928, at *3 (E.D. La. Apr. 13, 2000)). Thus,
11

“[a] plaintiff’s claim is typical if it arises from the same event
or practice giving rise to the claims of other class members and
is based on the same legal theory as the class members.” Cope,
2000 WL 381928, at *3 (citing Rosario v. Livaditis, 963 F.2d 1013,
1018 (7th Cir. 1992)).
The

claims

of

Plaintiffs

appear

to

arise

from

the

same

practices giving rise to the claims of the class members. The legal
theories being advanced and the reliefs being sought are the same
for

the

named

Plaintiffs

and

the

putative

class

members.

Specifically, Plaintiff Nelson currently has a case pending before
the Mayor’s Court and awaits trial of a criminal or traffic offense
as the putative class members in Class A. Plaintiff Richardson is
currently a participant in the Deferred Prosecution Program as the
putative class members in Class B and its sub-classes. However,
there are questions of factual differences between the financial
circumstances

of

named

Plaintiffs

and

each

putative

class

member, potentially leading to atypical results.
(d) Adequacy of Representation
To satisfy the adequacy of representation prong, a plaintiff
must

show

that

the

representative

parties

will

fairly

and

adequately protect the interests of the class. See FED. R. CIV. P.
23(a)(4).

This

Court

previously

requirement “mandates inquiry into:

explained

that

the

adequacy

(1) [the] zeal and competence

of [the] representative’s counsel; and (2) [the] willingness and
12

ability of [the] representative to take [an] active role in and
control litigation and to protect [the] interests of absentees.”
J.D. v. Nagin, 255 F.R.D. 406, 415 (E.D. La. 2009)(citing Berger
v. Compaq Comput. Corp., 257 F.3d 475, 482-83 (5th Cir. 2001)).
Further, an “adequate representative” “will vigorously prosecute
the interests of the class through qualified counsel” and will
“have common interests with the unnamed members of the class.” Id.
(citing Gonzales v. Cassidy, 474 F.2d 67, 72 (5th Cir. 1973)).
Thus, “there must be no significant conflict of interest between
the named plaintiffs and the absent class members.” Id.
Plaintiffs

have

satisfied

the

adequacy

of

representation prong. Plaintiffs are represented by counsel with
experience in civil rights cases. See Rec. Doc. Nos 2-2 & 2-3.
Their experience establishes an ability to litigate this case and
protect the interests of class members. Plaintiffs do not at this
moment appear to have any conflict of interests with the putative
class members. Plaintiffs seek the same remedies that flow from the
same

event

mistaken
an

in

adequate

as

the

their

putative
argument

representative

class
that

for

Plaintiff

Class

the class members in that class, like

13

members.

B

and

Defendants

are

Richardson is not

its

sub-classes

as

Plaintiff Richardson, have claims that arise from their inability
to afford fines. 5
2. Fed. R. Civ. P. 23(b)
After satisfying the four prerequisites of Rule 23(a), the
case may be maintained as a class action if a plaintiff shows that
their case fits into one of the three categories listed in Rule
23(b). Specifically, the case must be one in which (1) prosecuting
separate actions would create a risk of inconsistency or impairment
of interests; (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; or (3) the court finds
that

the

questions

common

to

the

class

predominate

over

any

questions affecting individual members and that class action is
superior

to

other

adjudicating

methods.

See FED. R. CIV. P.

23(b)(1)-(3).
“Rule 23(b)(2)’s focus on injunctive and declaratory relief
presumes a class best described as a homogenous and cohesive group
with

few

conflicting

interests

among

its

members.

Class

certification centers on the defendants’ alleged unlawful conduct,
not on individual injury.” In re Rodriguez, 695 F.3d 360, 365 (5th
Cir. 2012). In other words, “the defendant’s actions or refusal to

5

Defendants contend that Plaintiffs must split Class B into more than two subclasses and find representatives for those classes. See Rec. Doc. 50 at 15-16.
14

act are generally applicable to the class as a whole . . . .” Id.
at 365 (citing Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 975
(5th Cir. 2000)). “Decades ago, the Fifth Circuit explained that
because it is not necessary for class members to “be so clearly
identified that any member can be presently ascertained, the
23(b)(2) class action is an effective weapon for an across-theboard attack against systematic abuse. Indeed, its usefulness in
the civil rights area was foreseen by the drafters of the revised
rule.” Jones, 519 F.2d at 1100 (footnote and internal citations
omitted).
Plaintiffs “seek [injunctive and declaratory] relief as to
Defendants’ unconstitutionally biased adjudications and wealthbased [D]eferred [P]rosecution [P]rogram.” Rec. Doc. 2-1 at 12.
Plaintiffs’ cause of action is one in which the Defendants are,
allegedly, carrying out practices in a common fashion to all
putative class members. See Casa Orlando Apartments, Ltd. V. Fed.
Nat’l Mortg. Ass’n, 624 F.3d 185, 198 (5th Cir. 2010)(“23(b)(2)
requires

common

behavior

by

the

defendant

towards

the

class

members). The predominate prong of 23(b)(3) may not be satisfied
if

each

putative

class

member’s

financial

resources

requires

calculation to assess their ability to afford deferred program
costs and fees.6 If the Mayor’s Court had a written policy or

6

Defendants contend that declaratory judgment without class certification is
proper. See Rec Doc.55 at 14-15 But, Plaintiffs contend that that would be
insufficient as it would only stop the practices against the two named
15

consistent practice to assess financial ability and proceed within
constitutional

boundaries

of

due

process

and

equal

protection, this action may no longer be necessary.
B. Younger Abstention
Younger

abstention

applies

to

suits

for

injunctive

and

declaratory relief and to “three exceptional categories of state
proceedings:

ongoing

criminal

prosecutions,

certain

civil

enforcement proceedings akin to criminal prosecutions, and pending
civil proceedings involving certain orders . . . uniquely in
furtherance of the state courts’ ability to perform their judicial
functions.” Google, Inc. v. Hood, 822 F.3d 212, 222 (5th Cir.
2016). “If state proceedings fit into one of these categories, a
court appropriately consider[s] . . . whether there is (1) an
ongoing state judicial proceeding, which (2) implicates important
state interests, and (3) . . . provides an adequate opportunity to
raise federal challenges.” Id.
Plaintiff Nelson, as she alleges, “currently has a case
pending before the Mayor’s Court and awaits trial of a criminal
and/or traffic offense.” Plaintiff Richardson is participating in
the

Mayor’s

Court’s

Deferred

Prosecution

Program,

which

the

Defendant refers to as a federal proceeding. The City of Gretna

Plaintiffs. See Rec Doc. 51 at 6. However, a declaration on the
individual claims
that
finds
constitutional
violations
in
the
set
structure
and
typical operations
of
the
Mayor’s
Court
will
have
application beyond the named Plaintiffs.
16

has a state interest in enforcing criminal and traffic offenses to
ensure

the

welfare

of

its

citizens.

Plaintiffs are able to

raise their constitutional challenge in a state or federal court
district court where available remedies exist in due course.
Without more and given the history of this litigation,
including this court's involvement, it would not be fair at this
stage to invoke the Younger abstention. Accordingly,
IT

IS

ORDERED

Class” (Rec. Doc.
the

parties

2)

that
is

Plaintiffs’

DISMISSED

“Motion

WITHOUT

to

Certify

PREJUDICE

to

give

additional time to conduct discovery and pursue, in

good faith, an amicable resolution. It appears that this case
has

core

issues

that

preclude

certification

of

a

class,

including individualized calculations of a potential claimant’s
financial

ability

prosecution

and

to

pay

associated

workable

costs

for

deferred

alternatives to same. Those and

related issues should be collectively considered by all parties
with assistance of counsel.
propose

agreeable

status

To that end, parties shall jointly
conference

dates

to

meet

with

the

undersigned no later than October 23, 2018.
New Orleans, Louisiana, this 25th day of September, 2018.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

17