Taylor v. City of Saginaw et al

Filing 105

Opinion and Order (1) Granting Plaintiff's 91 Motion to Certify, (2) Granting and Denying in Part Defendants' 94 Motion to File Second Motion for Summary Judgment and (3) Denying as Moot Plaintiff's 99 Motion for Leave to File Second Amended Complaint. Signed by District Judge Thomas L. Ludington. (KWin)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ALISON PATRICIA TAYLOR,
Plaintiff,

Case No. 1:17-cv-11067

v.

Honorable Thomas L. Ludington
United States District Judge

CITY OF SAGINAW and TABITHA HOSKINS,
Defendants.
_________________________________________/
OPINION AND ORDER (1) GRANTING PLAINTIFF’S MOTION TO CERTIFY, (2)
GRANTING AND DENYING IN PART DEFENDANTS’ MOTION TO FILE SECOND
MOTION FOR SUMMARY JUDGMENT AND (3) DENYING AS MOOT PLAINTIFF’S
MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
This matter is before this Court upon Plaintiff’s Renewed Motion for Class Certification,
ECF No. 91, Plaintiff’s Conditional Motion for Leave to File Second Amended Complaint, ECF
No. 99, and Defendants’ Motion for Leave to File Second Motion for Summary Judgment, ECF
No. 94. For the reasons stated below, Plaintiff’s Motion to Certify will be granted, Defendants’
Motion for Leave will be granted and denied in part, and Plaintiff’s Motion for Leave will be
denied as moot.
I.
This is a putative class action challenging an age-old practice in parking enforcement: tirechalking. On behalf of herself and a putative class of similarly situated motorists, Plaintiff Allison
Patricia Taylor alleges that the City of Saginaw (the “City”) violated the Fourth Amendment by
chalking the tires of vehicles to record how long they had been parked. See ECF No. 9 at
PageID.74. In addition to naming the City as a Defendant, Plaintiff also names the City’s “most

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prolific [parking-ticket] issuer,” Tabitha Hoskins, who allegedly ticketed Plaintiff on 14 separate
occasions. Id. at PageID.72.
Since being filed in April 2017, this case has been dismissed twice, appealed twice, and
remanded twice: first at the pleading stage and then at the summary-judgment stage. See Taylor v.
City of Saginaw, No. 17-CV-11067, 2017 WL 4098862, at *7 (E.D. Mich. Sept. 15, 2017), rev’d
and remanded, 922 F.3d 328 (6th Cir. 2019) [hereinafter Taylor I]; Taylor v. City of Saginaw, No.
17-CV-11067, 2020 WL 3064448, at *9 (E.D. Mich. June 9, 2020), aff’d in part, rev’d in part and
remanded, 11 F.4th 483 (6th Cir. 2021) [hereinafter Taylor II], reh’g denied (Sept. 14, 2021). In
the course of deciding those two appeals, the Sixth Circuit has held that (1) tire-chalking constitutes
a search under the trespass approach adopted in United States v. Jones, 565 U.S. 400 (2012), and
(2) neither the community-caretaker, automobile, nor administrative exceptions apply.1 See Taylor
I, 922 F.3d at 333–35 (holding that tire-chalking is a search that is not excused by communitycaretaker doctrine or automobile exception); Taylor II, 11 F.4d at 489 (holding that administrativesearch exception does not apply).
Shortly after the second remand, Plaintiff filed a renewed motion for class certification.2
ECF No. 91. Plaintiff seeks to certify (1) a primary, non-damages class and (2) and a damages
subclass. Plaintiff defines the primary class as:
All persons (excluding the presiding judicial officer, his staff, the case counsel and
their staff) who had and/or will have a vehicle tire chalked by a City of Saginaw
parking enforcement officer, without a warrant, from April 5, 2014 to present.

1

The Sixth Circuit nonetheless concluded that Hoskins enjoys qualified immunity from Plaintiff’s
claims given the novelty of Plaintiff’s claims. See Taylor II, 11 F.4th at 490 (“[E]very reasonable
parking officer would not understand from Jones that suspicionless chalking of car tires violates
the Fourth Amendment.”).
2
Plaintiff’s original motion to certify, ECF No. 47, was denied as moot after summary judgment
was entered for Defendants, see ECF No. 77 at PageID.1408.
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Id. at PageID.1463. Plaintiff defines the subclass as:
All persons within the above-named class who paid a parking ticket from April 5,
2014 to present as a result of the warrantless chalking of vehicle tire(s).
Id. For the primary class, Plaintiff seeks declaratory and injunctive relief. Id. at PageID.1469; see
also Am. Compl., ECF No. 9 at PageID.75 (requesting entry of an order declaring Defendants’
conduct unconstitutional and enjoining further tire-chalking). For the subclass, Plaintiff seeks to
recover the amount that the subclass paid in parking tickets. See ECF No. 91 at PageID.1474–75.
Defendants responded to Plaintiff’s Motion to Certify with a brief in opposition, ECF No.
92, and a motion for leave to file a second motion for summary judgment, ECF No. 94. In sum,
Defendants argue that before considering Plaintiff’s Motion to Certify, this Court should consider
additional summary-judgment briefing on the “other exceptions” to the warrant requirement. ECF
No. 92 at PageID.1553; ECF No. 94 at PageID.1670.
Plaintiff has also filed a “conditional” motion for leave to file a second amended complaint,
which would add a formal request for nominal damages on behalf of the subclass. See ECF No. 99
at PageID.2034. The motion is conditional because Plaintiff wants to amend her complaint only if
this Court declines to certify the subclass due to its damages theory. See id. (reasoning that the
subclass “would at least be entitled to nominal damages” even if not entitled to damages for paid
parking tickets).
II.
The first issue is whether this Court should permit Defendants to file a second motion for
summary judgment before it decides Plaintiff’s Motion to Certify. Defendants intend to seek
summary judgment on two separate grounds: (1) the “other exceptions” to the warrant requirement,
not yet discussed in this case; and (2) the lack of a policy or custom of tire-chalking attributable to
the City under Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978).
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ECF No. 94 at PageID.1669. By “other exceptions” to the warrant requirement, Defendants
presumably mean the issue of consent and the so-called “de minimis exception,” which Defendants
raised in their motion for summary judgment, but which this Court declined to consider. See Defs.’
Mot. Summ. J., ECF No. 64 at PageID.1029–35. Defendants claim that allowing them to raise
these issues before certification would avoid needless litigation. ECF No. 92 at PageID.1553. This
Court disagrees.
Under Rule 23, a district court must decide whether to certify a putative class action “[a]t
an early practicable time” after the action is filed. FED. R. CIV. P. 23(c). A district court may,
however, “consider a Rule 56 motion first . . . when early resolution of [such a] motion seems
likely to protect both the parties and the court from needless and costly further litigation.”
Thompson v. Cnty. of Medina, Oh., 29 F.3d 238, 241 (6th Cir. 1994). Similarly, “district courts
may in their discretion permit renewed or successive motions for summary judgment.” Lexicon,
Inc. v. Safeco Ins. Co. of Am., 436 F.3d 662, 670 n.6 (6th Cir. 2006).
Defendants have not shown that another precertification motion would avoid needless
litigation. Indeed, it seems just as likely to cause more needless litigation. Over the last five years,
Defendants have enjoyed two opportunities to obtain dismissal. In both instances, they advanced
a handful of theories for why tire-chalking was constitutionally permissible. Despite early success
at both the pleading and summary-judgment stage, Defendants twice failed to persuade the Sixth
Circuit that their conduct was lawful. Indeed, the Sixth Circuit has so far rejected three alternative
theories for why tire-chalking is reasonable under the Fourth Amendment. See Taylor I, 922 F.3d
at 333–35 (community-caretaker doctrine and automobile exception); Taylor II, 11 F.4d at 489
(administrative-search exception). Despite the Defendants’ track record (and that of this Court),
Defendants have not used their motion for leave to elaborate on their prior arguments or explain

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why those arguments warrant immediate attention; they simply assert that deferring the
certification issue would conserve judicial resources.
Ultimately, the Sixth Circuit, an appellate court with the unique authority to address
“novel” constitutional issues, has had two opportunities to address the applicability of the
exceptions to the Fourth Amendment’s warrant requirement and has declined to do so. Defendants
have not offered any reason to think that the Sixth Circuit would appreciate a third opportunity. In
the end, Defendants’ claim of judicial efficiency is dubious.
Even so, Defendants will be granted leave to file another motion for summary judgment
after certification. First, Defendants’ unaddressed arguments, though not immediately compelling,
may have merit and certainly deserve to be considered if Plaintiff seeks summary judgment after
certification. See ECF No. 93 at PageID.1660–61 (“Plaintiff’s [Motion for Certification] should
be granted[,] so Plaintiff[] can then move for summary judgment.”). Second, this Court recently
directed supplemental briefing on two issues: (1) whether the subclass could legally recover
damages for parking tickets under 42 U.S.C. § 1983, and (2) whether the subclass could prove that
tire-chalking proximately caused the parking tickets. See Order Directing Supp. Br., ECF No. 96
at PageID.1680–83. Although this Court now agrees with Plaintiff that these issues do not preclude
certification, see Pl.’s Supp. Br., ECF No. 103, they can and should be addressed in future
dispositive briefing. Therefore, Defendants will be permitted to file a cross-motion for summary
judgment after certification in accordance with this Court’s forthcoming scheduling order.
III.
The next issue is whether class certification should be granted. The answer turns on Rule
23’s familiar, multi-step analysis.

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A.
The first step is to determine whether both the primary non-damages class and the damages
subclass meet Rule 23(a)’s four requirements: “numerosity, commonality, typicality, and adequate
representation.” See Hicks v. State Farm Fire & Cas. Co., 965 F.3d 452, 457 (6th Cir. 2020); see
also FED. R. CIV. P. 23(c)(5) (stating that subclasses should be “treated as a class under [Rule 23]”).
Importantly, “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 350 (2011). “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.” Id. A court may certify a class “only if
[it] is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.
Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s
underlying claim. That cannot be helped.” Id. at 350–51 (cleaned up).
As explained below, both the primary class and subclass meet Rule 23’s four requirements.
i.
First, both classes are sufficiently numerous as to make joinder “impracticable.” See FED.
R. CIV. P. 23(a)(1). Notably, the word “impracticable” does not mean “impossible.” Under Rule
23(a)(1), the plaintiff must show only that, as a matter of “common sense,” “it would be difficult
or inconvenient to join all class members.” Varacallo v. Mass. Mut. Life Ins., 226 F.R.D. 207, 229
(D.N.J. 2005); see also Beattie v. CenturyTel, Inc., 234 F.R.D. 160, 168 (E.D. Mich. 2006)
(“Where the exact size of the class is unknown but general knowledge and common sense indicate
that it is large, the numerosity requirement is satisfied.”), aff’d 511 F.3d 554 (6th Cir. 2007).
Given the frequency of tire-chalking, Plaintiff admits that the exact number of class
members is “functionally unknown” but “easily in the tens of thousands.” ECF 91 at PageID.1465.

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Relying on data produced by the City, Plaintiff claims that Defendants used tire-chalking to issue
at least 4,820 parking tickets with the help of tire-chalking between April 2014 and April 2019. Id.
at PageID.1466. Defendants deny that all those tickets involved tire-chalking. ECF No. 92 at
PageID.1560 (claiming that “no chalk was used after suit was filed in this case”). But even if only
a small fraction did, joinder would still be impracticable. See Peters v. Cars To Go, Inc., 184
F.R.D. 270, 276 (W.D. Mich. 1998) (“While there is no set rule for determining whether the
numerosity requirement is satisfied, a class numbering more than 40 members usually satisfies the
impracticability requirement, and classes containing 100 or more members routinely satisfy the
numerosity requirement.” (internal citations omitted)).
Accordingly, both classes satisfy the numerosity requirement.
ii.
Second, both classes share common issues of fact and law. See FED. R. CIV. P. 23(a)(2).
The commonality requirement is “easy to misread, since any competently crafted class complaint
literally raises common questions.”

Wal-Mart, 564 U.S. at 349 (cleaned up). In essence,

commonality requires “a common contention” that is “capable of classwide resolution”—in other
words, a contention whose resolution “[would] resolve an issue that is central to the validity of
each one of the claims in one stroke.” Id. at 350.
All members of both classes share at least one significant question in common: Did the
City’s warrantless tire-chalking violate the Fourth Amendment? The answer to that question is
central to each of their claims and capable of class-wide resolution. Cf. id.
Defendants argue that the classes share “no commonality,” because (1) “it is currently
unknown which pu[tative] class members had a tire of their vehicle chalked before being issued a
ticket,” and (2) the reason for a parking ticket might vary because “there are several parking

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ordinance violations a person could commit.” ECF No. 92 at PageID.1561. Neither assertion is
persuasive.
To begin, Defendants’ argument is irrelevant to the primary class, as only the subclass
would seek relief for the parking tickets. Moreover, whether each subclass member “had a tire
chalked before being issued a ticket” is simply a threshold question for class membership, not a
strike against commonality. See ECF No. 91 at PageID.1463 (defining subclass as “[a]ll persons
within the [primary] class who paid a parking ticket from April 5, 2014 to present as a result of
the warrantless chalking of vehicle tire(s).” (emphasis added)). Further, Plaintiff has already
introduced evidence that when a City parking officer issues a parking ticket, she photographs the
vehicle and its chalked tire. See Example Tickets and Photos, ECF No. 68-2. Finally, the reason
why a ticket was issued seems irrelevant. For purposes of the subclass, the question is whether the
tire-chalking proximately caused the ticket, and that question is likely capable of class-wide
resolution, at least to some extent. See infra Section III.B.ii.
Accordingly, both classes satisfy the commonality requirement.
iii.
Third, Plaintiff’s claims are “typical of the [class] claims.” See FED. R. CIV. P. 23(a)(3).
Although the analysis for typicality and commonality “tend[s] to merge,” the two concepts remain
distinct for purposes of Rule 23. In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig.,
722 F.3d 838, 853 (6th Cir. 2013). In essence, “[t]ypicality is met if the class members’ claims are
fairly encompassed by the named plaintiffs’ claims.” Id. at 852 (internal quotation marks omitted).
The purpose of the typicality requirement is to ensure “that the representatives’ interests are
aligned with the interests of the represented class members so that, by pursuing their own interests,
the class representatives also advocate the interests of the class members.” Id. at 852–53.

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Plaintiff brings the same claim for the same type of injury as every other member of the
two classes: a Fourth Amendment claim for the City’s warrantless chalking of her tires. Cf. Beattie
v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007) (finding typicality where plaintiff’s claims
“ar[ose] from the same allegedly deceptive billing practice that g[ave] rise to the claims of the
other class members”). The only difference between Plaintiff’s claims and the claims of other class
members is the dollar amount sought for the parking tickets. And as this Court previously held,
“[a] variance in damages does not destroy commonality or typicality provided that the same event
or practice or course of conduct gives rise to the claims of other class members, and if the named
representatives’ claims are based on the same legal theory.” Klender v. United States, 218 F.R.D.
161, 165 (E.D. Mich. 2003) (cleaned up).
Defendants argue that the classes do not satisfy typicality because “Plaintiff’s class
definition sweeps too broadly and includes individuals . . . who may have paid their tickets, or who
may own the vehicle, but were not operating the vehicle at the time of the violation.” ECF No. 92
at PageID.1562. According to Defendants, such distinctions could affect the availability of relief
or of a particular defense. Id. Defendants’ argument is unpersuasive.
At bottom, a class as large as Plaintiff’s primary class is likely to include claims with
various factual differences. The purpose of typicality is not to ensure complete identity between
the class representative and the class members but to ensure that their interests align. See In re
Whirlpool, 722 F.3d at 852–53. If any of the distinctions Defendants noted prove legally relevant,
the primary class can be further divided into additional subclasses. See FED. R. CIV. P. 23(c)(5).
At this juncture, however, such distinctions do not preclude a finding of typicality.
Accordingly, both classes meet the typicality requirement.

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iv.
Finally, Plaintiff “will fairly and adequately protect the interests of the class.” See FED. R.
CIV. P. 23(a)(4). The Sixth Circuit has identified “two criteria for determining adequacy of
representation: 1) the representative must have common interests with unnamed members of the
class, and 2) it must appear that the representatives will vigorously prosecute the interests of the
class through qualified counsel.” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996).
As discussed above, Plaintiff brings the same claims as every other class member, and there
is no reason that her interests and those of the two classes are antagonistic. Indeed, Plaintiff and
the two classes appear to have the same goal: to obtain an injunction against the City and, if
applicable, recover the amount paid in parking tickets.
Still, Defendants claim that “Plaintiff’s situation may vary drastically from other members
of the class.” ECF No. 92 at PageID.1563. Their only example, however, is that Plaintiff paid her
parking tickets while other class members presumably did not. Defendants do not explain why this
distinction undermines adequacy, and this Court does not see how it could. To begin, the subclass
is defined to include only those members of the primary class who received and paid a parking
ticket. So, this “drastic” variation would only exist between subclass members and some unknown
portion of primary class members who have yet to pay a parking they received. But the principal
interest of both groups must be in avoiding further warrantless intrusions, as the highest parkingticket fine is merely $30.00. See ECF No. 91 at PageID.1474 (claiming that tire-chalking ticket
fines ranged between $15.00 and $30.00) Accordingly, this Court finds no antagonism between
Plaintiff and the classes that would preclude a finding of adequacy.
Defendants also question the capability of Plaintiff’s counsel, stating that despite
“[counsel’s] knowledge and experience in civil rights litigation, a class action requires the

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knowledge, resources, and experience maintain [sic] such a lofty case.” ECF No. 92 at
PageID.1563. Defendants further claim that “[n]either attorney for Plaintiff has put forth any action
plan or otherwise [sic] to indicate their capability of maintaining such a class.” Id.
Defendants’ objection is without merit. Plaintiff’s counsel have successfully prosecuted
this “lofty case” for nearly five years, obtaining two appellate victories on complex questions of
law. They also have prior experience serving as class counsel. See infra Section III.C (discussing
appointment of class counsel). As for an “action plan,” Plaintiff represents that discovery is already
completed and that she will move for summary judgment after obtaining certification. See ECF
No. 93 at PageID.1661, 1664. In sum, this Court has not doubt that Plaintiff’s counsel can
effectively represent the two classes.
Accordingly, Plaintiff and her counsel satisfy the adequacy requirement.
B.
Having decided that both classes satisfy the four requirements of Rule 23(a), the second
step is to determine whether they “fit[] within one of the three subsections of Rule 23(b).” Hicks
v. State Farm Fire & Cas. Co., 965 F.3d 452, 457 (6th Cir. 2020). As explained below, the primary
class fits within subsection (b)(2), and the subclass fits within subsection (b)(3).
i.
Rule 23(b)(2) allows a district court to certify a class 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.” FED. R.
CIV. P. 23(b)(2). Subsection (b)(2) classes are referred to as “mandatory classes” because the
district court need not “provide individual members of the class with notice and the opportunity to
‘opt out’ of the class action.” Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443, 447 (6th

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Cir. 2002). “These procedural protections are considered unnecessary for a Rule 23(b)(2) class
because its requirements are designed to permit only classes with homogenous interests.” Id.
The primary class clearly fits within subsection (b)(2). As indicated, Plaintiff seeks an order
enjoining Defendants from further warrantless tire-chalking and declaring their prior tire-chalking
unconstitutional. See ECF No. 9 at PageID.74. In this way, the interests of primary class members
are “homogenous” and need not be protected by the procedures afforded to a damages class. See
Coleman, 296 F.3d at 448 (“The additional requirements of notice and the opportunity to opt out
are necessary in Rule 23(b)(3) classes precisely because claims for money damages involve
individual interests that are necessarily heterogenous in nature.”).
Accordingly, the primary class will be certified under subsection (b)(2).
ii.
Subsection (b)(3) allows a district court to certify a class where it finds (1) that “questions
of law or fact common to class members predominate over any questions affecting only individual
members,” and (2) that “a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” FED. R. CIV. P. 23(b)(3). These two requirements are
necessary in the (b)(3) context to ensure that “a class action would achieve economies of time,
effort, and expense.” See FED. R. CIV. P. 23(b)(3) advisory committee’s note to 1966 amendment.
As explained below, the subclass meets both requirements.
First, the subclass’s common questions of fact and law predominate over the individual
ones. “To evaluate predominance, ‘[a] court must first characterize the issues in the case as
common or individual and then weigh which predominate.’” Martin v. Behr Dayton Thermal
Prods. LLC, 896 F.3d 405, 413 (6th Cir. 2018) (quoting 2 William B. Rubenstein, Alba Conte &
Herbert B. Newberg, Newberg on Class Actions § 4:50 (5th ed. 2010)). An action is proper under

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Rule 23(b)(3) “[w]hen one or more of the central issues in the action are common to the class and
can be said to predominate,” even if “other important matters will have to be tried separately, such
as damages or some affirmative defenses peculiar to some individual class members.” Id. at 414
(quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016)).
Here, the common questions are (1) whether the tire-chalking was unconstitutional, (2)
whether the tire-chalking was attributable to a City policy or custom, and (3) whether the subclass
can, as a matter of law, recover the amount it paid in parking tickets. The primary individual
question is one of causation; namely, whether Defendants’ tire-chalking proximately caused the
subsequent parking ticket. Another individual question is the dollar amount of the parking ticket.
On balance, the common questions predominate over the individual ones. The most
significant questions for the subclass are those that can be resolved as a matter of law and on the
basis of generalized proofs: specifically, (1) the constitutionality of Defendants’ tire-chalking, (2)
the existence of a policy or custom attributable to the City, and (3) the scope of damages under §
1983. Even the proximate-cause question could largely be resolved on a class-wide basis if
Defendants choose to argue that some common fact severed the link between the tire-chalking and
the payment of the parking ticket. As for the inevitable differences in damages, it is well settled
that “individual damages calculations do not preclude class certification under Rule 23(b)(3).” In
re Whirlpool, 722 F.3d at 861.
Second, a class action is the superior method of adjudicating the subclass claims. In
evaluating superiority, district courts should consider “the difficulties of managing a class action,”
the comparative costs and benefits of “other means of disposing of the suit,” and “the value of
individual damage awards, as small awards weigh in favor of class suits.” Martin, 896 F.3d at 416

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(quoting Pipefitters Loc. 636 Ins. Fund v. Blue Cross Blue Shield of Mich., 654 F.3d 618, 630 (6th
Cir. 2011)).
Here, class resolution is clearly superior to individual resolution. The most obvious reason
is that “the cost of litigation would dwarf any potential recovery,” In re Whirlpool, 722 F.3d at
861, effectively closing the door for relief on thousands of affected motorists. See also Carnegie
v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004) (“The realistic alternative to a class
action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues
for $30.”). Fairness is a central part of the superiority analysis, and it would be neither fair nor
realistic to expect tire-chalked motorists to seek their claims individually in federal court.
Class resolution would also achieve significant “economies of time, effort, and expense.”
See FED. R. CIV. P. 23(b)(3) advisory committee’s note to 1966 amendment. All subclass claims
turn on common and complex questions of law that are best answered in a single proceeding. Even
the individual questions, like the date and time of tire-chalking and ticketing, rely on data that can
be analyzed and compiled in a systematic way. Indeed, according to Plaintiff, the City has already
produced the necessary data in discovery. See ECF No. 93 at PageID.1665.
Accordingly, the subclass will be certified under subsection (b)(3).
C.
The final step of certification is the appointment of class counsel. See FED. R. CIV. P.
23(g)(1) (“[A] court that certifies a class must appoint class counsel.”). In appointing class counsel,
the district court must consider several factors:
(i) the work counsel has done in identifying or investigating potential claims in
the action;
(ii) counsel’s experience in handling class actions, other complex litigation, and
the types of claims asserted in the action;
(iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class.
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FED R. CIV. P. 23(g)(1)(A). As discussed below, each of these factors weighs in favor of appointing
Plaintiff’s counsel, Messrs. Philip L. Ellison and Matthew E. Gronda, as class counsel.
First, Plaintiff’s counsel have been at the helm of this case since they filed it in April 2017.
As a result of their efforts, Plaintiff has earned two victories in the Sixth Circuit, resulting in two
precedential opinions that have since been cited in other tire-chalking cases. See, e.g., Safaie v.
City of L.A., No. CV193921FMOPJWX, 2021 WL 4786677, at *7 (C.D. Cal. July 12, 2021)
(certifying class of motorists tire-chalked by the City of Los Angeles). Second, Plaintiff’s counsel
are career-long trial attorneys with substantial experience in class-action and civil-rights litigation.
See Gronda Decl., ECF Nos. 91-3; Ellison Decl., ECF No. 91-4. Third, Plaintiff’s counsel appear
well versed in the Fourth Amendment and the law of § 1983. Fourth, Plaintiff’s counsel represent
they are prepared to contribute “significant resources” to this case, and last five years prove that
they are capable of doing so. See ECF No. 91 at PageID.1471.
Accordingly, Plaintiff’s counsel will be appointed as class counsel.
IV.
As mentioned above, Plaintiff has also filed a conditional motion for leave to file a second
amended complaint. ECF No. 99. Plaintiff asks for leave to add a claim for nominal damages on
behalf of the subclass in the event that this Court declines to certify the subclass on the basis of its
damages theory. Id. at PageID.2034. But because the subclass will be certified, see supra Section
III.B.ii, Plaintiff’s conditional motion for leave will be denied as moot. Ultimately, whether the
subclass can recover the amount paid in parking tickets under 42 U.S.C. § 1983 is a question of
law that can be addressed at a later date if Plaintiff prevails on summary judgment.

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Case 1:17-cv-11067-TLL-PTM ECF No. 105, PageID.2248 Filed 01/21/22 Page 16 of 16

V.
Accordingly, it is ORDERED that Plaintiff’s Renewed Motion to Certify, ECF No. 91, is
GRANTED. The primary non-damages class and damages subclass, defined in Section I, supra,
are certified under Federal Rule of Civil Procedure 23(b)(2) and (b)(3), respectively. Plaintiff is
APPOINTED as class representative, and her counsel, Messrs. Philip L. Ellison and Matthew E.
Gronda, are APPOINTED as class counsel.
Further, it is ORDERED that Defendant’s Motion for Leave to File a Second Motion for
Summary Judgment, ECF No. 94, is GRANTED AND DENIED IN PART. Defendants may file
a cross-motion for summary judgment in accordance with this Court’s forthcoming scheduling
order.
Further, it is ORDERED that Plaintiff’s Conditional Motion for Leave to File Second
Amended Complaint, ECF No. 99, is DENIED AS MOOT.
Dated: January 21, 2022

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

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