Sinclair v. Meisner et al

Filing 121

ORDER denying 99 Plaintiff Sinclair's Motion to Certify Class. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARION SINCLAIR, et al.,
Plaintiffs,
v.
COUNTY OF OAKLAND,

2:18-CV-14042-TGB-APP
HON. TERRENCE G. BERG
ORDER DENYING PLAINTIFF
SINCLAIR’S MOTION TO
CERTIFY CLASS
(ECF NO. 99)

Defendant.
Before the Court is Plaintiff Marion Sinclair (“Plaintiff”)’s Motion
to Certify a Class Action. Defendant Oakland County foreclosed on
Plaintiff Marion Sinclair’s property for failure to pay delinquent taxes.
The County then transferred the property to the City of Southfield for the
amount of due taxes and fees owed, and Southfield then conveyed it for
$1.00 to a for-profit company to repair and resell the property. Sinclair
alleges that the market value of her home at the time it was foreclosed
upon was greater than the amount of the delinquent taxes. But at no time
during this process did the County ever pay Sinclair for the equity in her
home.
Sinclair seeks to certify a class consisting of former Oakland County
property owners who lost their property through a tax foreclosure
process, where the property was then sold through a right of first refusal

program to a local municipality, whose property was worth more than the
tax delinquency, and who were never compensated for the surplus equity
of their homes. ECF No. 99. Defendant opposes certification. ECF No.
101.
For the reasons explained below, the Motion to Certify the Proposed
Class will be DENIED (ECF No. 99).
I.

BACKGROUND
The Court refers to its previous explanation of the background in

this case. ECF No. 90, PageID.1743–49. Sinclair owned a home in
Southfield, Michigan. After she fell behind on her property taxes—by
$22,047.46—the Oakland County Treasurer initiated forfeiture and
foreclosure proceedings against her under Michigan’s General Property
Tax Act, MCL §§ 211.1-211.157, eventually taking absolute title to her
home. Before Oakland County’s Treasurer put the tax-delinquent
property up for auction, the City of Southfield exercised its statutory
right of first refusal to buy the property for $28,424.84—a bid equal to
the delinquent tax amount plus any fees owed. See MCL § 211.78m(1)
(2015) (allowing municipalities to purchase foreclosed property for a
“minimum bid,” that is, the amount of delinquent taxes plus certain other
charges).1

1 The

statute has since been amended. See MCL § 211.78m(1) (2021)
(requiring municipalities to pay “the greater of the minimum bid or the
fair market value of the property” to purchase foreclosed property).
2

In September 2016, Southfield deeded the property for $1.00 to a
for-profit entity, the Southfield Neighborhood Revitalization Initiative
(“SNRI”), formed for the purpose of purchasing, improving, and reselling
foreclosed properties at market value. SNRI allegedly remains in
possession of Sinclair’s property at this point and has not yet resold it for
profit. Though the market value of her home was allegedly more than she
owed, Sinclair has not received any reimbursement for the difference
between the fair market value of her home and the amount of her
delinquent taxes. Plaintiff asserts SNRI purchased at least 140 taxforeclosed properties from Southfield from 2012 to 2023 through the same
scheme. ECF No. 99, PageID.2106.
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 23 governs class actions and sets

forth requirements to certify a class. Class certification is appropriate
when the moving party “affirmatively demonstrate[s] . . . compliance”
with Rule 23.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)
(noting that “Rule 23 does not set forth a mere pleading standard”).
This is a two-step process. The party seeking class certification first
must satisfy the four threshold showings under Rule 23(a) that:
(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

3

(4) the representative parties will fairly and adequately protect the
interests of the class.
Fed.

R.

Civ.

Proc.

23.

These

“four

requirements—numerosity,

commonality, typicality, and adequate representation—effectively limit
the class claims to those fairly encompassed by the named plaintiff’s
claims.” Wal-Mart Stores, Inc., 564 U.S. at 349 (quotations omitted).
Next, the moving party must show that its proposed class
“satisf[ies] at least one of the three requirements listed in Rule 23(b).” Id.
at 345. For Rule 23(b)(3) classes like Sinclair’s proposed class, the
plaintiff must show “predominance (that “the questions of law or fact
common to class members predominate over any questions affecting only
individual members”), superiority (that “a class action is superior to other
available

methods

for

fairly

and

efficiently

adjudicating

the

controversy”), and ascertainability (an implied requirement that the
putative class members can be readily identified based on the class
definition).” Tarrify Properties, LLC v. Cuyahoga County, Ohio, 37 F.4th
1101, 1105–06 (6th Cir. 2022)(emphasis added).
While district courts enjoy “broad discretion” in deciding whether
class certification is appropriate, In re Whirlpool, 722 F.3d 838, 850, they
must conduct a “rigorous analysis” that shows that all of Rule 23
prerequisites are met prior to certifying a class. In re Am. Med. Sys., Inc.,
75 F.3d 1069, 1078–79 (6th Cir. 1996).

4

III. DISCUSSION
On May 30, 2024, Plaintiff filed a Motion for Class Certification.
ECF No. 99. She seeks to certify a class defined as follows:
All persons and entities that owned real property in Oakland
County whose real property, during the relevant time period,
was seized through a real property tax foreclosure and
subsequently purchased via a local municipality’s right of first
refusal program (MCL 211.78m), which was worth more than
the total tax delinquency taxes owed and were not refunded
the surplus equity in excess of the delinquent tax amount.
Id. at PageID.2096–97.2 In view of recent Sixth Circuit case law, Plaintiff
faces an uphill battle in attempting to certify a class whose members seek
to recover their property’s surplus equity. This is because the major issue
in this case is the likely need for an individualized inquiry into the fair
market value of each putative class member’s property to determine (1)

2 Plaintiff confirmed her proposed class does not include real properties

purchased at a public auction. ECF No. 99, PageID.2108. Defendant
complains that Plaintiff improperly expanded the class definition from
the Complaint filed when she was representing herself in 2018 by
including properties throughout Oakland County as opposed to solely in
the City of Southfield. Judge Borman rejected such an expansion in Hall
v. Oakland County, 2024 WL 209702, at *14 (E.D. Mich. Jan. 19, 2024).
But this Court allowed an amended complaint including the class action
allegation, without evaluating any scope or timeliness issue, deeming
“problems with the scope of class definitions ultimately will be litigated
at class certification.” Sinclair v. Meisner, 2024 WL 1184674, at *7 (E.D.
Mich. Mar. 19, 2024). The Court need not decide whether the scope was
improperly expanded or whether the amendment fails to relate back to
the initial complaint because class certification will be denied on other
grounds.
5

who falls within the class and who does not as well as (2) individual
damages.
In recent decisions, the Sixth Circuit has explained, confirmed, and
repeated that the need for such an individualized inquiry “presents a
significant obstacle to class certification in class actions . . . in which
plaintiffs are seeking surplus equity.” In re Sabree, 2023 U.S. App. LEXIS
6218, at *3 (6th Cir. Mar. 15, 2023); see also Tarrify, 37 F.4th at 1107
(“Look

at

what

you

wish—ascertainability,

predominance,

or

superiority—the district court reasonably rejected this class-certification
motion given the individualized nature of each inquiry into the fair
market value of each property at the time of transfer.”). Indeed, after the
briefing on this motion closed, the Sixth Circuit issued another opinion
vacating and remanding the district court’s decision granting class
certification for a surplus equity class involving the same takings scheme
as in this case in part because of this very issue. See Bowles v. Sabree,
121 F.4th 539, 554–55 (6th Cir. 2024). In Bowles, the Sixth Circuit
emphasized its previous holding in Tarrify to the effect that
“[d]etermining fair market value involves an ‘individualized assessment’
of each property and requires ‘proof that is variable in nature and ripe
for variation in application.’ [cit. omitted] And when mini-trials ‘become
necessary to determine who is in and who is out, the class-action vehicle
imposes inefficiencies rather than ameliorates them.’” Id. at 550, citing
Tarrify, 37 F.4th at 1106–07.
6

In addition, two judges of the Eastern District of Michigan have
recently issued decisions denying certification of two similar surplus
equity classes earlier this year. See Hall v. Oakland County, 20-cv-12230,
2024 WL 209702, at *15 (E.D. Mich. Jan. 19, 2024) (Borman, J.); Taylor
v. County of Oakland, 19-cv-12548, 2024 WL 188376, at *8 (E.D. Mich.
Jan. 16, 2024) (Lawson, J.). The only class that was certified which
Plaintiff relies on was decided two years before Tarrify. See Arkona, LLC
v. County of Cheboygan, 2020 WL 4366027, at *1 (E.D. Mich. July 30,
2020).
As the courts held in Tarrify, Taylor, Hall, and Bowles, the need for
an individualized inquiry into the fair market value of each separate
property at the time of transfer weighs against finding that the class is
ascertainable, common issues predominate, and that class action is
superior to individual actions in this case. Thus, the Court will follow the
reasoning of those courts and similarly deny class certification.
A. Class Definition
For a class to be certified, “the class definition must be sufficiently
definite so that it is administratively feasible for the court to determine
whether a particular individual is a member of the proposed class.”
Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537–38 (6th Cir. 2012)
(citing 5 James W. Moore et al., Moore’s Federal Practice § 23.21[1]
(Matthew Bender 3d ed. 1997)). A class is sufficiently definite if the court
can resolve the question of who is in and who is out of the class by
7

reference to “objective criteria.” Id. at 538; see, e.g., Am. Copper & Brass,
Inc. v. Lake City Indus. Prods., Inc., 757 F.3d 540, 545 (6th Cir. 2014)
(finding that a record of fax logs listing each successful recipient by fax
number “demonstrates that the fax numbers are objective data satisfying
the ascertainability requirement”). But if “mini-trials” become necessary
to determine class membership, the “class-action vehicle imposes
inefficiencies rather than ameliorates them.” Tarrify, 37 F.4th at 1106
(citing to Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc.,
863 F.3d 460, 470 (6th Cir. 2017), as corrected on denial of reh’g en banc
(Sept. 1, 2017)).
Determination

of

class

membership

necessarily

must

be

accomplished at the outset of class litigation in order to supply the
required notice to putative Rule 23(b)(3) class members. Taylor, 2024 WL
188376, at *7; see also Fed. R. Civ. Proc. 23(c)(2)(B) (“For any class
certified under Rule 23(b)(3) . . . the court must direct to class members .
. . notice” of the action, class definition, class claims and defenses, binding
effect of class judgment, and ability to appear and to request exclusion);
Cole v. City of Memphis, 839 F.3d 530, 541 (6th Cir. 2016) (recognizing
that “ascertainability aids the inherent efficiencies of the class device by
ensuring administrative feasibility,” which includes “the practical need
to notify absent class members and to allow those members a chance to
opt-out and avoid the potential collateral estoppel effects of a final
judgment”); Fox v. Saginaw County, 67 F.4th 284, 302 (6th Cir. 2023) (“To
8

certify a class action, . . . a district court must forecast how the parties
will conduct the litigation from the certification stage through the trial
to the final judgment.”).
Here, recall that Sinclair seeks to certify a class defined as follows:
All persons and entities that owned real property in Oakland
County whose real property, during the relevant time period,
was seized through a real property tax foreclosure and
subsequently purchased via a local municipality’s right of first
refusal program (MCL 211.78m), which was worth more than
the total tax delinquency taxes owed and were not refunded
the surplus equity in excess of the delinquent tax amount.
ECF No. 99, at PageID.2096–97 (emphasis added). Ascertaining class
membership in Sinclair’s proposed class thus requires a determination of
what each putative class member’s property was “worth” at the time of
foreclosure. As to those whose property was “worth more than the total
tax delinquency taxes owed,” they are “in,” but for those whose property
was worth less than the total tax, they are “out.” Sinclair asserts that
determining whether the property was “worth more” is “easily calculable
by subtracting the tax delinquency amount from the real property’s fair
market value.” ECF No. 99, PageID.2116.
But the Sixth Circuit already found it unmanageable to ascertain
class membership by relying on fair market value because determining
such would require “proof that is variable in nature and ripe for variation
in application” and therefore an “independent and individualized
assessment of each absent class member’s property.” Tarrify, 37 F.4th at
9

1106–07 (noting that “the valuation of real property depends on many
circumstances, including the size, location, use, and condition of the
property and the relevant market conditions at the time of the transfer,”
which will vary for each property); see also Fox, 67 F.4th at 301 (noting
that determining “the difference between the fair market value of their
homes and the taxes they owe . . . necessitates fact-specific evidence about
the worth of each class member’s property on a property-by-property
basis”). Such an individualized assessment would lead to “mini-trials” to
ascertain class membership, making the class action mechanism
inefficient. Tarrify, 37 F.4th at 1110. Plainly, the Sixth Circuit later
confirmed

that

an

“equity-based

class”

could

not

meet

the

ascertainability requirement. Bowles, 121 F.4th at 550..
And district courts post-Tarrify have similarly found that
certification must be denied because an individualized inquiry is
necessary to determine what the fair market value of each property was
at the time of the foreclosure in order to know which properties were
seized to satisfy debts that fell short of their fair market value. See, e.g.,
Taylor, 2024 WL 188376, at *7; Hall, 2024 WL 209702, at *12. Here, even
though class membership turns on a seemingly simple question—“does
each property include surplus equity?”—each putative class member will
have to offer proof that is variable in nature to determine the fair market
value of the property at the time of foreclosure, leading to a myriad of

10

mini-trials that would make the class action process inefficient. Tarrify,
37 F.4th at 1106.
Sinclair offers alternative methods to ascertain class membership
without necessarily relying on fair market value. She argues there is an
alternative objective criterion that can determine class membership:
whether a government entity exercised its Right of First Refusal
(“ROFR”) to seize the property and transfer it to a third party. ECF No.
105, PageID.2455–56. But unless Sinclair can prove that all properties
seized under ROFR were worth more than the delinquent taxes owed,
this argument fails because otherwise the class would necessarily include
owners who suffered no injury.
Sinclair suggests narrowing the class definition to exclude
abandoned properties, condemned properties, or properties with serious
building ordinance violations—which are the kinds of properties more
likely to be worth less than the delinquent taxes owed. See Powers v.
Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 618 (6th Cir. 2007)
(affirming class certification but modifying class definition to exclude
persons not represented by the Public Defender because it could not be
held liable for harm to persons that it did not cause); In re Flint Water
Cases, 558 F. Supp. 3d 459, 486 (E.D. Mich. 2021) (noting that the Court
is “authorized to redefine the classes to provide narrower class-based
relief when necessary to ensure that the ‘class is properly constituted’”).

11

But even the exclusion of abandoned properties does not
affirmatively prove no other property could be worth less than the tax
amount owed. Houses that have not been condemned or violated an
ordinance could still be in such disrepair that they would be worth less
than the tax owed, and it is not inconceivable that a government entity
might exercise its ROFR on such an “undesirable property” in order to
revitalize the neighborhood. Even Sinclair’s house, Defendant alleges,
was “dilapidated and in severe disrepair[,] . . . [t]he roof needed
replacement, there was mold everywhere, the windows were essentially
non-functional, as well as the plumbing, heating and cooling,” and SNRI
spent almost $190,000 on repairs, ECF No. 100, highlighting the factintensive nature of the inquiry into the value of each house to determine
class membership.
Sinclair argues that the value of such non-excluded properties can
be determined using property valuations, but the Sixth Circuit, again,
already rejected that argument as property valuations are only a starting
point to determining fair market value. Tarrify, 37 F.4th at 1107;3 see
3 Judge Lawson in Taylor summarized Tarrify’s reasoning as to property

valuations: “(1) tax valuation is merely one data point that may have a
bearing on market value, not a determination of market value per se, (2)
variations in market conditions over time would require individualized
assessments of market conditions at the time of each foreclosure, (3) tax
valuations, unlike market sales, do not include any component of value
based on the interior condition of the premises, (4) the methodology of tax
valuation inherently is designed to be applied in gross, in order to achieve

12

also Hall, 2024 WL 209702, at *11 (noting that the State Equalized Value
(SEV) of a foreclosed property is not an ultimate determination of the fair
market value of that property but instead just a measure of taxable value
and one factor for the Court to consider along with other data, such as
expert appraisals).
And Sinclair’s attempt to distinguish this case from Tarrify based
on Michigan’s yearly assessment of property value—as opposed to Ohio’s
six-year assessment period—also fails. Even Michigan courts recognize
that such an assessment does not determine with finality the fair market
value of a property and is often considered along with expert appraisals
offered by both parties and submitted to the fact-finder. See In re
Memorial Hall Site, 316 Mich. 215, 220 (1946) (holding that tax
assessment rolls, while “not controlling,” had a bearing on the value of a
condemned property and could be “considered in connection with all other
evidence” to determine fair market value of the property); see also City of
Muskegon v. Berglund Food Stores, Inc., 50 Mich. App. 305, 311 (1973)
(considering tax assessment along with “estimations of value by
recognized and admittedly qualified appraisers”); In re Urban Mass
Transp. Facilities Project Michigan-UTG-4, 28 Mich. App. 529, 533
uniformity in valuation and avoid peculiarly high or low valuations for
individual properties, and (5) due to the inherent nature of real estate,
the specific location of every property becomes a dominant component of
the valuation, which is a feature entirely overlooked by a generalized tax
valuation scheme.” 2024 WL 188376, at *7.
13

(1970) (noting that tax assessment and expert appraisals were offered by
both parties and presented to the jury, because tax assessments, while
having a material bearing on the issue, do not determine with finality the
market value of a property).
While Sinclair claims the Court can rely on modern appraisal
method reports—in addition to property valuations—such as those
provided by the website HouseCanary4 to determine fair market value
when issuing mortgages, both parties have the opportunity to present
their own expert appraisal. Such a need for expert appraisals in addition
to property valuations “underscore[s] the fact-intensive nature of value
determination” and the need for “mini-trials” to ascertain class
membership. See Taylor, 2024 WL 188376, at *7; Hall, 2024 WL 209702,
at *12. The problem is that Sinclair’s proposed method of relying on
property valuations, SEV, and expert appraisals cannot decisively
determine fair market value, it simply offers additional evidence for the
Court or jury to consider in their fact-intensive inquiry into the fair
market value of each putative class member’s foreclosed property.

Plaintiff asserts that HouseCanary provides real estate valuation
services and is used by national mortgage companies such as United
Wholesale Mortgage. See ECF No. 99, PageID.2116 n.2. HouseCanary
describes itself as the industry leading platform for AI-powered singlefamily real estate data and analytics. See HouseCanary Home Page,
https://www.housecanary.com (last visited Jan. 2, 2025).

4

14

Thus, despite Sinclair’s attempt to propose an objective criterion to
determine class membership, the need to rely on property valuations and
expert appraisals highlight the need to conduct “mini-trials” to ascertain
class membership at the outset of litigation here—a particularly crucial
requirement in Rule 23(b)(3) class actions where notice must be sent to
putative class members to advise them of their rights and the opportunity
to opt out. See Fed. R. Civ. Proc. 23(c)(2)(B). Therefore, because the class
is unascertainable without a prior individual assessment as to the
eligibility of each member, it cannot be certified. But the Court must
continue its analysis because even if “surplus equity claims are
unmanageable in takings class actions, . . . a rigorous analysis of Rule
23’s requirements” is still required. Bowles, 121 F.4th at 548.
B. Rule 23(a) Requirements
The burden is on Plaintiff to affirmatively demonstrate and provide
“significant evidentiary proof” that a class action is appropriate—that the
requirements for numerosity, commonality, typicality, and adequate
representation are met—especially when it is contested. See In re Ford
Motor Co., 86 F .4th at 726 (citations omitted). Defendant does not
address Plaintiff’s arguments regarding numerosity, commonality,
typicality, or adequate representation.
Here, there is at least one question common to the class whose
resolution will affect all putative class members: whether Oakland
County’s actions amount to an unlawful taking in violation of the Fifth
15

Amendment. ECF No. 99, PageID.2110. Common evidence will be used
to prove such liability to every class member. Id. at PageID.2105.
And Sinclair’s claim is typical of the class that she seeks to
represent because it “arises from the same event or practice or course of
conduct that gives rise to the claims of other class members,” and because
her claims are “based on the same legal theory” as class members’ claims,
namely Oakland County’s unconstitutional taking of her surplus equity
following the foreclosure of real property, and class members all “share[]
a desire to obtain both monetary” relief—the surplus equity in the
property beyond the taxes owed—”and injunctive relief” from Oakland
County, such that Sinclair has “common interests with unnamed
members of the class.” See Vassalle v. Midland Funding LLC, 708 F.3d
747, 757 (6th Cir, 2013).
And it appears to the Court that Sinclair and her attorneys, as
representatives, will “vigorously prosecute the interests of the class
through qualified counsel.” Id. No attack on their credibility has been
made, and their competency appears satisfactory, especially given the
lawyers’ vital role in obtaining the favorable Hall decision which held
surplus equity to be a protected right.
However, it appears Sinclair has more difficulty proving
numerosity. She alleges the class contains at least 140 individuals in
Southfield, and up to 800 members in Oakland County. ECF No. 99,
PageID.2109–10. Numerosity is a “low bar to clear”, and the Sixth Circuit
16

has permitted classes of 35 members, but the plaintiff bears the burden
to provide evidence supporting the estimated numbers. See Bowles, 121
F.4th at 553. Sinclair provides evidence that SNRI obtained 140
foreclosed properties in Southfield. ECF No. 99-1, PageID.2132. But this
evidence does not show how many properties were “purchased via a local
municipality’s right of first refusal program,” nor how many were “worth
more than the total tax delinquency taxes owed.” See Bowles, 121 F.4th
at 553 (“We don’t just need to estimate how many properties were sold at
auction; we need to estimate how many properties were sold at auction
for more than the former owner’s tax debt.”) (emphasis added). Therefore,
and unsurprisingly, Sinclair cannot definitively show how numerous the
class is for the same reason the Court cannot ascertain class membership.
C. Rule 23(b)(3) Requirements
For Rule 23(b)(3) classes like Sinclair’s proposed class, the plaintiff
must show “predominance (that ‘the questions of law or fact common to
class members predominate over any questions affecting only individual
members’) [and] superiority (that ‘a class action is superior to other
available

methods

for

fairly

and

efficiently

adjudicating

the

controversy’)[.]” Tarrify, 37 F.4th at 1105–06. But problems emerge on
the predominance and superiority fronts when a “controlling issue
requires individualized determinations ill-equipped for classwide proof.”
Id. at 1106. Indeed, the major issue in this case, as in Tarrify, Taylor,
Hall, and Bowles, is the need for an individualized inquiry into the fair
17

market value of each putative class member’s property to ascertain class
membership and determine damages. This individualized inquiry weighs
against finding that the class is ascertainable (as explained earlier), that
common issues predominate, and that class action is superior to
individual actions. See Tarrify, 37 F.4th at 1107 (“Look at what you
wish—ascertainability, predominance, or superiority—the district court
reasonably

rejected

this

class-certification

motion

given

the

individualized nature of each inquiry into the fair market value of each
property at the time of transfer.”).
Sinclair asserts that “common evidence will be used to prove
Oakland County’s liability to every class member” such that common
issues predominate over individual ones. But the “predominance
criterion” is “more demanding” than the commonality requirement.
Zehentbauer Family Land, LP v. Chesapeake Expl., LLC, 935 F.3d 496,
503 (6th Cir. 2019) (citation omitted). “[C]ommon questions do not alone
make a class[, w]e then have to add up all the suit’s common issues . . . .
and all of its individual issues to qualitatively evaluate which side
predominates over the other.” Bowles, 121 F.4th at 554 (quotations
omitted). The fact that the computation of damages is the “only
individualized issue” does not mean it cannot overwhelm the common
liability questions. See id. (vacating certification order and remanding for
further analysis addressing potential difficulties that could hamper
damages calculations).
18

As a result, the Sixth Circuit in Fox required court to “forecast how
the parties will conduct the litigation from the certification stage through
the trial to the final judgment” before certifying a class action. Fox, 67
F.4th at 302. (citation omitted). The Sixth Circuit identified several
individual issues that could plague takings class litigation, including “(1)
whether [the court] would calculate damages formulaically or with factspecific mini trials, (2) whether the county would have unique defenses,
like res judicata or standing, against individual class members, and (3)
how non-class lienholders, like banks holding mortgages on certain
properties, would factor into any recovery.” Bowles, 121 F.4th at 554
(citing to Fox, 67 F.4th at 301–02).
Particularly relevant to our case here is the damages inquiry. Fox
suggested that “[i]f a court may identify the amount of damages using a
‘formulaic calculation’ for each class member, common issues may well
predominate. Fox, 67 F.4th at 301. But “if fact-specific damage trials ‘will
inevitably overwhelm’ common liability questions, individual issues may
predominate.” Id. (citation omitted). In Fox, the court explained that
damages calculated as the “difference between the fair market value of
their homes and the taxes they owe . . . necessitate[] fact-specific evidence
about the worth of each class member’s property on a property-byproperty basis . . . [which] could ‘overwhelm’ any common liability issues.”
Id.; see also Tarrify, 37 F.4th at 1107 (“The shifting facts and
circumstances about the value of each property likely will dominate the
19

proceedings . . . and run the risk of undercutting the efficiencies and ease
of administration that otherwise might favor classwide resolution of the
claims.”); In re Sabree, 2023 U.S. App. LEXIS 6218, at *2 (recognizing
that the individualized factual inquiry into the value of each foreclosed
property “might predominate over class issues and reduce the class
action to ‘myriad mini-trials’ that defeat superiority”).
As explained earlier, determining fair market value in this case will
similarly require an individualized, fact-intensive, adversarial process
which will overwhelm the somewhat comparatively straightforward
question of constitutional violation. And the parties have not agreed on a
different formula to determine the worth of each property at this time.
Sinclair suggests, like she did to ascertain class membership, that the
Court could rely on property valuation and expert appraisals to
determine fair market value, thereby reducing the need for mini-trials.
But these methods were rejected by the Sixth Circuit and other district
courts not only for the ascertainability prong, but also for the
predominance and superiority prongs. See Tarrify, 37 F.4th at 1107; Hall,
2024 WL 209702, at *11.
The only new proposal Sinclair raises is that the fair market value
“can easily be determined by appointing a special master to appraise
properties and determine damages.” ECF No. 99, PageID2116–18. But
this is not so new. The Sixth Circuit already explicitly rejected the
assertion that appointing a special master to determine fair market value
20

disputes would make classwide relief “more palatable” because the
proposal did not “cure the problem that this case will boil down to mini
trials over each property’s value upon transfer.” Tarrify, 37 F.4th at 1109.
And the Sixth Circuit also warned that “determining the fair market
value of each potential class member’s property” is “no easy task, even for
experts,” leading to “difficulties figuring out class membership” and
undercutting the “efficiencies and ease of administration that might
otherwise favor class-wide resolution.” Bowles, 121 F.4th at 547
(emphasis added). Furthermore, the decision to appoint a special master
is not only discretionary, but solely warranted by “some exceptional
condition” or “the need to . . . resolve a difficult computation of damages.”
Fed. R. Civ. Proc. 53(B). Sinclair relies on a 1966 case from this District
in which the court appointed a special master to argue this Court should
do the same. See Foster v. City of Detroit, Mich., 254 F. Supp. 655, 669
(E.D. Mich. 1966), aff’d, 405 F.2d 138 (6th Cir. 1968).
In Foster, after the court held the City of Detroit took property
without just compensation, the court decided to appoint a special master
to hear claims of unnamed parties for six months, determine their
membership in the class, and assess the extent of their damages in
accordance with the formula adopted by the court. Id. at 666–69.5 That
5 The court in Foster deemed it possible to determine class membership

after the rendition of a favorable verdict where there was an identifiable
class. 254 F. Supp. at 668. The court noted the class “has been identified

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damages formula was the difference between the value of the property
before and after the taking (plus interest, but minus any amounts which
accrued to plaintiffs from their possession of the property) and the court
used appraisals made for the City as a starting point. Id. at 666–67. The
court found exceptional circumstances to appoint a special master
“because of the extremely large number of potential intervenors”—over
50 persons in an area encompassing 25 city blocks—and “because as to
most of these intervenors there will be no new question of law or fact, but
merely matters of proof and computation of claimed damages.” Id. at
668–69 n.25, n.32.
Here, while it is unclear how numerous Sinclair’s proposed class is,
it is allegedly more numerous than Foster’s. But unlike the court in
Foster, this Court has not yet found Oakland County liable, and while the
Sixth Circuit has announced the damages formula—fair market value at
the time of the foreclosure—there is no “cognizable common theory for
measuring the value in each property at the time of transfer,” as
explained earlier. See Tarrify, 37 F.4th at 1104. While the court in Foster
chose the City’s appraisal as the minimum value, it does not seem that
Plaintiff in this case has agreed to the use of appraisals—or two times
the State Equalized Value (SEV)—to determine damages because they

as consisting of those property owners within the ‘Mich. 1-11’ area who
have been subject to the dual condemnation actions.” Id. at 667.
Importantly, the class was not defined by fair market value.
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would be less than fair market value, ECF No. 105, PageID.2454 n.1, and
courts in the Sixth Circuit have been clear that appraisals and property
valuations are but one factor to consider. As a result, questions of fact
remain which must be adjudicated by a jury. Unlike in Foster, most of
the “intervenors” will have new questions of facts which will need to be
submitted to the Court for determination, thereby undermining the
special master’s purpose.
Thus, in addition to causing problems in ascertaining class
membership and showing numerosity, the need to determine fair market
value predominates over common questions because it will require “factspecific mini-trials” plaguing the takings class litigation, “potentially to
the point of vitiating its worth” compared to individual suits. See Bowles,
121 F.4th at 554.
In a final attempt to obtain certification, Sinclair argues the Court
should follow the majority view of other Circuits and not refuse to certify
the class “merely on the basis of manageability concerns.” Mullins v.
Direct Digital, LLC, 795 F.3d 654, 663 (7th Cir. 2015) (citing to In re Visa
Check/MasterMoney Antitrust Litig., 280 F.3d 124, 140 (2d Cir. 2001));
Freund v. McDonough, 114 F.4th 1371, 1378 (Fed. Cir. Aug. 20, 2024)
(rejecting the “minority view” requiring “administrative feasibility” as
part of the ascertainably test). But Sinclair acknowledges the Sixth
Circuit adopted the minority view. ECF No. 105, PageID.2453; see
Tarrify, 37 F.4th at 1106 (noting that the predominance requirement
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“prompt[s] us to ask whether the proposed class action beats the
conventional approach of resolving disputes on a case-by-case basis in
terms of efficiency and administrability) (emphasis added). And even
courts adopting the majority view recognized that “administrative
feasibility may bear on whether class resolution is superior to individual
resolution.” Freund, 114 F.4th at 1378.
It is true that “if many proposed class members . . . have limited
resources, one case pooling all claims might be better on time and cost
fronts than several individual ones, for both the litigants and the
judiciary.” Bowles, 121 F.4th at 554; see also Amchem Prod., Inc. v.
Windsor, 521 U.S. 591, 617 (1997) (noting that class actions help
vindicate “the rights of groups of people who individually would be
without effective strength to bring their opponents into court at all”);
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985) (noting that
class actions provide plaintiffs with a voice who “would have no realistic
day in court if a class action were not available”). However, “[b]y enabling
enormous aggregation of claims and parties, class actions represent a
significant departure from ‘our constitutional tradition of individual
litigation[,]”‘ and thus class actions “are the exception, not the rule[.]” In
re Ford Motor Co., 86 F.4th 723, 725–26 (6th Cir. 2023) (citing to Brown
v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1233 (11th Cir. 2016)).
Therefore, the Court concludes that the need for an individualized
inquiry into the fair market value of each property at the time of
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foreclosure will predominate over common issues because it will require
mini-trials to determine class membership and damages, thereby
“impos[ing] inefficiencies rather than ameliorat[ing] them.” See Tarrify,
37 F.4th at 1106.
All in all, because Sinclair failed to develop a “cognizable common
theory for measuring the value in each property at the time of transfer,”
see id. at 1104, the proposed class definition failed to meet Rule 23(a)
requirement of numerosity, Rule 23(b)(3) requirements of predominance
and superiority, and the implied requirement of ascertainability.
Sinclair’s motion for class certification is DENIED.
IV.

CONCLUSION

For the reasons explained above, Plaintiff’s Motion for Class
Certification is DENIED (ECF No. 99).
SO ORDERED this 7th day of January, 2025.
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge

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