Garner et al v. Roseville, City of et al

Filing 19

ORDER Consolidating Cases; Certifying Settlement Class; Preliminarily Approving Class Action Settlement Agreement and Setting Dates. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAWRENCE M. GARNER, CHRISTOPHER
GARNER, AND WILLIAM KAUPUS,
Plaintiffs,
v.

Case No. 16-10760
Hon. Victoria A. Roberts

CITY OF ROSEVILLE, GLENN SEXTON,
RODNEY BROWNING,
Defendants.
and
CORDIA MICHIGAN, LLC, RUDALEV I,
LLC, and GARNER PROPERTIES &
MANAGEMENT, LLC
Plaintiffs,
v.

Case No. 16-10986
Hon. Victoria A. Roberts

CITY OF ROSEVILLE, GLENN SEXTON,
RODNEY BROWNING,
Defendants.
______________________________________/
ORDER: (1) CONSOLIDATING CASES; (2) CERTIFYING
SETTLEMENT CLASS; (3) PRELIMINARILY APPROVING CLASS
ACTION SETTLEMENT AGREEMENT; AND (4) SETTING DATES
This matter coming before the Court on the parties’ Joint Motion for
Preliminary Approval of Class Action Settlement and Notice to the Class” (the “Joint
Motion”), after review and consideration of the Settlement Agreement, and after

hearing statements of the parties’ attorneys in open court on August 7, 2017, and
having been fully advised in the premises, IT IS HEREBY ORDERED as follows:
1.

U.S. District Court, Eastern District of Michigan case nos. 16-cv-10760

and 16-cv-10986 are CONSOLIDATED for purpose of settlement. All future Court
filings shall be filed into case no. 16-cv-10760.
2.

Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the

settlement of this action, as embodied in the terms of the Settlement Agreement
attached to the Joint Motion, is hereby preliminarily approved as a fair, reasonable,
and adequate settlement of this case in the best interests of the Settlement Class in
light of the factual, legal, practical, and procedural considerations raised by this case.
The Settlement Agreement is incorporated by reference into this Order (with
capitalized terms as set forth in the Settlement Agreement).
3.

Pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, by

stipulation of the parties, and for the purpose of settlement, the Court hereby certifies
the following Class and Sub-Class, also collectively referred to as “Settlement
Class”:
Class: All persons and entities who currently own or at one time owned any
non-owner occupied residential structures located within the City of Roseville
who or which has been issued a misdemeanor ticket for failure to obtain a
Certificate of Compliance under the City’s Non-Owner-Occupied Housing
Ordinance, and subsequently paid a fine at any time since January 1, 2010
through December 15, 2016.
Sub-Class: All persons and entities who were not owners of non-owner
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occupied residential structures located within the City of Roseville, yet were
issued a misdemeanor ticket for failure to obtain a Certificate of Compliance
under the City’s Non-Owner-Occupied Housing Ordinance from January 1,
2010 through December 15, 2016.
Excluded from the Settlement Class are Defendants, including any and all of their
departments, subsidiaries, affiliates or controlled persons of Defendants, as well as
the officers, directors, agents, servants, and employees of Defendants and the
immediate family members of such persons. Class Counsel is also excluded from
the Class.
4.

The Court finds that certification for purposes of settlement is

appropriate because: (a) the class is so numerous that joinder of all members is
impractical; (b) there are questions of law and fact common to the Class and they
predominate over any questions affecting only individual Class Members; (c)
Plaintiffs’ claims are typical of the claims of the Class; (d) Plaintiffs and their
attorneys will fairly and adequately protect the interests of the Class; and (e) a class
action is the superior means of resolving this controversy.
5.

The Court appoints Plaintiffs, Lawrence M. Garner, Christopher

Garner, William Kaupus, Cordia Michigan, LLC, Rudalev I, LLC and Garner
Properties & Management, LLC as the representatives of the Settlement Class
pursuant to Rule 23(a), and appoints their attorneys Aaron D. Cox and Mark K.
Wasvary as Class Counsel pursuant to Rule 23(g).

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6.

The Court finds that the Settlement Agreement’s plan for Class Notice

is the best notice practicable under the circumstances and satisfies the requirements
of due process and Rule 23(e)(1) of the Federal Rules of Civil Procedure. That plan
is approved and adopted. This Court further finds that, except for one omission, the
Class Notice (attached to the Settlement Agreement as Exhibit 2), and the Claim
Form included as part of the Class Notice, comply with Rules 23(e)(1) and
23(c)(2)(B) of the Federal Rules of Civil Procedure. Class Counsel must add
language to the Class Notice to comply with Rule 23(c)(2)(B)(iv) (providing that “a
class member may enter an appearance through an attorney if the member so
desires”). With the inclusion of that language, the Class Notice and Claim Form are
approved and adopted. The Court orders that the parties provide the notice to the
Class as proposed, with the one addition above.
7.

By this Order, the Court hereby orders that the Class Notice shall be

sent by either postcard or first class mailing for Class Members where Defendants
have that information. The Claims Administrator will cause an abbreviated version
of the Notice to be placed in a weekend edition of the Macomb Daily. The Settlement
Agreement, Class Notice and Claim Form shall also be made available on the Class
Counsel’s website. The Court finds and orders that no other notice is necessary.

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8.

Class Counsel is authorized to request and receive docket records from

the 39th District Court for the State of Michigan to verify claims of the Settlement
Class.
9.

The Court hereby sets deadlines and dates for the acts and events set

forth in the Settlement Agreement and directs the Parties to incorporate the deadlines
and dates in the Class Notice:
(a)

Plaintiffs must file an Amended Complaint with more specific

allegations as to Christopher Garner on or before August 17, 2017;
(b)

The Class Notice must be mailed by August 22, 2017;

(c)

Class Members must submit a Proof of Claim to the Claims

Administrator within 90 days after the Class Notice is sent;
(d)

Objections and motions to intervene, along with related

memoranda of law, shall be filed in this Court and postmarked and served on
Class Counsel and Defendants’ counsel on or before November 6, 2017, or
be forever barred;
(e)

Requests by any Class Member to opt out of the settlement must

be mailed to Class Counsel on or before November 6, 2017, or be forever
barred;
(f)

Class Counsel must file a motion for final approval of class
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action settlement on or before November 20, 2017. That motion must address
any objections that were filed, and it must set forth: (1) the total number of
Members who responded in the Class and Sub-Class; (2) the total number of
claims made under the Class and Sub-Class; and (3) the percentage of the fine
recovered by Class/Sub-Class Members based on the pro-rated formula (e.g.,
if a Class Member paid a $100 fine, and his or her pro-rated share of the
settlement fund is $75, he or she recovered 75% of the fine they paid). SubClass Members are entitled to make a claim for $350 for each misdemeanor
ticket in addition to a pro-rata share of fines paid;
(g)

Class Counsel must file a motion for attorney fees and expenses

pursuant to Rule 23(h) on or before November 20, 2017;
(h)

Defendants shall file proof of compliance with the notice

requirements of the Class Action Fairness Act of 2005, 28 U.S.C. § 1715(b),
no later than August 21, 2017; and
(i)

The Fairness Hearing, set forth in the Class Notice, is hereby

scheduled for January 16, 2018, at 9:00 a.m. in Room 226.
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: August 8, 2017

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