Edwards v. The City of Tupelo, Mississippi et al
Filing
161
ORDER denying 148 Motion to Strike. Signed by District Judge Debra M. Brown on 8/21/20. (jla)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
VINCENT EDWARDS, Individually, and
on behalf of all others similarly situated
V.
PLAINTIFF
NO. 1:17-CV-131-DMB-DAS
THE CITY OF TUPELO, MISSISSIPPI,
et al.
DEFENDANTS
ORDER
This proposed class action case is before the Court on the City of Tupelo’s motion to strike
certain paragraphs of a supplemental declaration submitted in support of Vincent Edwards’
supplemental motion for class certification. Doc. #148.
I
Procedural History
On October 1, 2019, Vincent Edwards, “Individually, and on behalf of all others similarly
situated,” filed “Plaintiff’s Second Amended Class Action Complaint for Violation of Civil
Rights” against the City of Tupelo, Mississippi, Lee County Mississippi, Ramierre Warren, and
certain fictious individuals. Doc. #124. The complaint proposes a class action of
municipal court defendants … who were and are incarcerated by Defendants City
of Tupelo and Lee County for contempt of court for nonpayment of fines, fees,
and/or costs … without a determination, following a meaningful inquiry into the
individual’s ability to pay the fines and court costs or adhere to the court’s
installment payments plans, that the individuals willfully refused to make the debt
payments.
Id. at 4.
On May 1, 2020, Edwards filed a supplemental motion to certify the proposed class. Doc.
#135. In support of the motion, Edwards submitted a “Declaration of Halbert E. Dockins Jr.,
Plaintiff’s Lead Counsel and Prospective Class Counsel.” Doc. #136-8. After the defendants
responded to the motion to certify,1 Edwards filed both a reply, Doc. #147, and a supplemental
declaration of Dockins, Doc. #147-1.
On June 1, 2020, the City filed a motion to strike paragraphs 8 and 9 of the supplemental
declaration. Doc. #148. The motion is fully briefed. Doc. ##156–57.
II
Analysis
The supplemental declaration of Dockins relates to the creation of Exhibit A to Edwards’
pending motion to certify. Doc. #147-1; see Doc. #136-1. In the declaration, Dockins explains
that Exhibit A was compiled from two documents produced by the defendants during discovery
listing “all defendant inmates received by Lee County from the City of Tupelo from 2012-2017.”
Doc. #147-1 at ¶ 1. Dockins and his staff then filtered the two documents to produce a list of
inmates charged with contempt of court “with an additional qualifier of ‘fines paid’” who were
confined for four days or more. Id. at ¶¶ 4–5. The names produced from this process were
compiled in Exhibit A. Id.
Paragraphs 8 and 9 of the supplemental declaration refer to the efforts of Dockins’ staff to
review the circumstances surrounding the confinement of the persons listed in Exhibit A. These
paragraphs provide:
8. Our review of the first 100+ files produced (Defendants refused to produce the
entire 400+ files we requested) indicated that not one defendant on the list was
jailed for any reason other than non-payment of fines or failure to adhere to a fine
payment plan.
9. We then did a sampling of phone calls to the defendants. Many of the phone
numbers we took from the files manually were inoperable or were incorrect,
however, out of the ones we were able to reach, every one confirmed that they were
jailed on the day they appeared for court without a hearing and that they had no
present financial ability to pay their fines or fine payment plans on the day they
were jailed.
1
Docs. #142, #143.
2
Id. at ¶¶ 8–9.
The City argues that paragraphs 8 and 9 should be stricken because they are based on
hearsay and, therefore, are “inherently unreliable.”2 Doc. #149 at 3.
A. Evidentiary Standard for Class Certification Motions
Federal Rule of Civil Procedure 23 provides, in relevant part:
(a) PREREQUISITES. One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:
(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.
(b) TYPES OF CLASS ACTIONS. A class action may be maintained if Rule 23(a) is
satisfied and if:
(1) prosecuting separate actions by or against individual class members
would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for the
party opposing the class; or
(B) adjudications with respect to individual class members that, as a
practical matter, would be dispositive of the interests of the other members
not parties to the individual adjudications or would substantially impair or
impede their ability to protect their 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 of law or fact common to class members
predominate over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.
Fed. R. Civ. P. 23. “To obtain class certification, parties must satisfy Rule 23(a)’s four threshold
requirements, as well as the requirements of Rule 23(b)(1), (2), or (3).” Maldonado v. Ochsner
2
The plaintiff also cites Lentz v. Spanky’s Restaurant II, Inc., 491 F. Supp. 2d 663 (N.D. Tex. 2007), apparently for
the proposition that conclusory statements in an affidavit are inadmissible. In Lentz, the district court held that an
affidavit with conclusory allegations, standing alone, could not support a finding of a similarly situated plaintiff for a
proposed Fair Labor Standards Act collective action. The opinion did not address admissibility.
3
Clinic Found., 493 F.3d 521, 523 (5th Cir. 2007).
“Rule 23 does not set forth a mere pleading standard. Instead, 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, and so on.” Chavez v. Plan Benefit Servs., Inc., 957 F.3d 542, 545–46 (5th Cir. 2020) (cleaned
up). To satisfy the rigorous standard, a court “will often have to probe behind the pleadings
because the class determination generally involves considerations that are enmeshed in the factual
and legal issues of the case.” Id. at 546 (cleaned up). This duty includes conducting an
“investigation” into disputed facts. Id.
As this Court previously observed in this case:
While the Fifth Circuit does not appear to have addressed the propriety of
considering hearsay in an ordinary motion for class certification, it has held that
certification of a securities class action dependent on a fraud-on-the-market theory
“must be made based on adequate admissible evidence to justify class
certification.” Unger v. Amedisys Inc. 401 F.3d 316, 319 (5th Cir. 2005).
Notwithstanding Unger’s holding, courts in this circuit, in non-securities class
actions, have held that “the rules of evidence do not apply in full force” to a motion
to certify class when the evidence is “not offered as evidence of the merits of
Plaintiffs’ claims, but to support their class certification motion.” Steward v. Janek,
315 F.R.D. 472, 478 (W.D. Tex. 2016). This approach is consistent with the
holdings of “most district courts … that evidence need not be admissible under the
Federal Rules of Evidence—or that the rules should not be applied strictly—on a
motion for class certification.” Flores v. Anjost Corp., 284 F.R.D. 112, 124 n.3
(S.D.N.Y. 2012) (collecting cases); see Paxton v. Union Nat’l Bank, 688 F.2d 552,
562 n.14 (8th Cir. 1982) (“Hearsay testimony may be admitted to demonstrate
typicality.”).
Edwards v. City of Tupelo, No. 1:17-cv-131, 2019 WL 4643989, at *4 n.9 (N.D. Miss. Sept. 24,
2019). Based on this law, the Court noted that “[b]ecause nothing in Unger suggested the
admissibility requirement was intended to extend beyond fraud-on-the-market class certifications,
the Court would be inclined to follow the majority rule that evidence supporting a motion for class
certification need not be admissible under the Federal Rules of Evidence.” Id.
4
Having further reviewed relevant case law, the Court concludes that Unger did not impose
a requirement that class certification evidence be admissible under the Rules of Evidence and that
even if it did, such holding would not extend to class actions which do not rely on a fraud-on-themarket theory. The Court further concludes that, based on the nature of class certification
proceedings, the Federal Rules of Evidence should not be strictly applied in such proceedings.
1. The meaning of Unger
In Unger, a class action alleging securities fraud, “[t]he crux of th[e] appeal [was] the legal
basis for and sufficiency of evidence supporting the district court’s finding of predominance under
Rule 23(b)(3).” 401 F.3d at 321. The Unger panel held that “[i]f the circumstances surrounding
each plaintiff’s alleged reliance on fraudulent representations differ, then reliance is an issue that
will have to be proven by each plaintiff, and the proposed class fails Rule 23(b)(3)’s predominance
requirement.” Id. Accordingly, the panel held that “[o]nly by invoking the fraud on the market
theory can these plaintiffs establish a classwide rebuttable presumption of reliance on [the
defendant’s] misrepresentations.” Id. at 322. To this end, Unger held that “[w]hen a court
considers class certification based on the fraud on the market theory, it must engage in thorough
analysis, weigh the relevant factors, require both parties to justify their allegations, and base its
ruling on admissible evidence.” Id. at 325 (emphasis added).
While Unger referred broadly to admissibility, it never defined the term as meaning
admissible under the Federal Rules of Evidence. The definition of the word “admissible” is not
so limited. See Admissible Black’s Law Dictionary (11th ed. 2019) (defining “admissible” as
“Capable of being legally admitted; allowable; permissible”).
Indeed, case law has long
recognized evidence may be “admissible” for introduction in a proceeding without being
admissible under the Federal Rules of Evidence. For example, hearsay testimony which is
5
inadmissible under the Federal Rules of Evidence may be “admissible at a suppression hearing,”
United States v. Sundsboe, 65 F. App’x 509, 509 n.1 (5th Cir. 2003), and may also be “admissible
in preliminary injunction hearings,” Nelson ex rel. N.L.R.B. v. Advoc. Health & Hosps. Corp., 273
F. Supp. 3d 919, 929 n. 5 (N.D. Ill. 2017) (collecting cases).
Consistent with the broad meaning of “admissible,” nothing in Unger suggests that the
panel intended to require complete compliance with the Federal Rules of Evidence for evidence to
be admissible in a class certification proceeding. Indeed, in evaluating the evidence supporting
the plaintiffs’ fraud-on-the-market theory, the Unger panel did not rely on the Federal Rules of
Evidence in any respect. Rather, when finding error in the district court’s reliance on certain
internet printouts, the Unger panel held that “[a]t the certification stage, reliance on unverifiable
evidence is hardly better than relying on bare allegations.”3 Unger, 401 F.3d at 324. Thus, Unger
held that “unverifiable” evidence is inadmissible in class certification proceedings.
Additionally, in dicta, the Unger panel quoted with approval Bell v. Ascendant Solutions,
Inc., which held that “[i]n order to consider [a] motion for class certification with the appropriate
amount of scrutiny, the Court must first determine whether Plaintiffs’ expert testimony supporting
class certification is reliable” after a “Daubert-type review” (rather than a full Daubert review).
No. 301cv166, 2004 WL 1490009, at *2 (N.D. Tex. July 1, 2004). Thus, the panel seemed less
concerned with the evidence’s strict compliance with the Federal Rules of Evidence than with the
veracity or reliability of such evidence.
Even if the Unger panel intended to import a Federal Rule of Evidence requirement into
class certification proceedings, the plain language of the opinion limits such a holding to
3
Unger also cited with approval a district court’s observation that “[i]n order to consider Plaintiffs’ motion for class
certification with the appropriate amount of scrutiny, the Court must first determine whether Plaintiffs’ expert
testimony supporting class certification is reliable.” 401 F.3d at 323 n.6.
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certification proceedings premised on a fraud-on-the-market theory. For all these reasons, the
Court finds that Unger does not require that evidence used in support of a motion for class
certification be admissible under the Federal Rules of Evidence.
2.
The proper standard
Four circuits have addressed the applicability of the Federal Rules of Evidence with respect
to class certifications proceedings. The Third and Seventh Circuits have held that expert testimony
in a class certification proceeding must meet the admissibility requirements of Federal Rule of
Evidence 702 and the related Daubert standard. See Am. Honda Motor Co., Inc. v. Allen, 600 F.3d
813, 815–16 (7th Cir. 2010) (“[T]he district court must perform a full Daubert analysis before
certifying the class if the situation warrants.”); In re Blood Reagents Antitrust Litig., 783 F.3d 183,
187 (3d Cir. 2015) (“[A] plaintiff cannot rely on challenged expert testimony, when critical to class
certification, to demonstrate conformity with Rule 23 unless the plaintiff also demonstrates, and
the trial court finds, that the expert testimony satisfies the standard set out in Daubert.”).
The Eighth Circuit, in In re Zurn Pex Plumbing Products Liability Litigation, reached a
different conclusion. 644 F.3d 604, 613–14 (8th Cir. 2011). In In re Zurn, the Eighth Circuit
observed that unlike a summary judgment proceeding which then relied only on admissible
evidence, “a court’s inquiry on a motion for class certification is ‘tentative,’ ‘preliminary,’ and
‘limited.’” Id. at 613. Noting Supreme Court precedent that a class certification proceeding is “of
necessity … not accompanied by the traditional rules and procedure applicable to civil trials,” the
Eighth Circuit held that the district court did not err in conducting a less rigorous “Daubert analysis
which scrutinized the reliability of the expert testimony in light of the criteria for class certification
and the current state of the evidence.” Id. at 613–14.
In Sali v. Corona Regional Medical Center, the Ninth Circuit considered an appeal from a
7
denial of class certification alleging employment claims. 909 F.3d 996, 1000 (9th Cir. 2018). On
appeal, the plaintiffs challenged the district court’s decision to strike a declaration because the
declarant could not authenticate the information in the declaration due to a lack of personal
knowledge and because the declaration contained improper opinion testimony. Id. at 1003. In
reversing the district court, the Sali court rejected the holdings of the Seventh Circuit in American
Honda and the Third Circuit in In re Blood Reagents as premised on “conclusory presumptions.”4
Id. at 1005. The court then cited with approval the Eighth Circuit’s In re Zurn focus on “the
differences between Rule 23, summary judgment and trial that warrant greater evidentiary freedom
at the class certification stage.” Id. Additionally, the Ninth Circuit further found a relaxed
evidentiary standard to be supported by the “analogous field of standing,” which “varies at the
complaint, summary judgment and trial phases.” Id. at 1006. Ultimately, the Ninth Circuit held:
When conducting its “rigorous analysis” into whether the Rule 23(a) requirements
are met, the district court need not dispense with the standards of admissibility
entirely. The court may consider whether the plaintiff’s proof is, or will likely lead
to, admissible evidence. Indeed, in evaluating challenged expert testimony in
support of class certification, a district court should evaluate admissibility under
the standard set forth in Daubert. But admissibility must not be dispositive. Instead,
an inquiry into the evidence’s ultimate admissibility should go to the weight that
evidence is given at the class certification stage.
Id. (citation omitted). Applying this standard, the Ninth Circuit concluded that the district court
erred by striking evidence “that likely could have been presented in an admissible form at trial.”
Id.
This Court finds the Ninth Circuit approach, which focused on the “ultimate admissibility”
of a piece of evidence to be not only persuasive but more consistent with Unger’s focus on whether
4
The Sali court included Unger in its analysis, observing that it “held that admissible evidence is required to support
class certification.” 909 F.3d at 1005. For the reasons above, the Court concludes that this appears to have been a
misreading of Unger.
8
the proffered evidence is verifiable or reliable, as opposed to “admissible” under a specific rule.
This flexible approach is also consistent with the Fifth Circuit’s recent clarification that, even at
the summary judgment stage, the “substance or content” of evidence need not be admissible under
the Federal Rules of Evidence so long as the material may be presented at trial in an admissible
form. Patel v. Tex. Tech. Univ., 941 F.3d 743, 746 (5th Cir. 2019).
Accordingly, the Court concludes that at the class certification stage, evidence need not be
admissible under the Federal Rules of Evidence. Rather, a court should consider to what extent
the proffered evidence complies with the Federal Rules of Evidence, including whether the
evidence could be presented in an admissible form at trial, and determine its weight accordingly.
In this sense, the weight afforded evidence in a class certification proceeding is best described as
inversely related to the evidence’s admissibility under the Federal Rules of Evidence. Evidence
which is inadmissible under the Federal Rules of Evidence or likely inadmissible at trial should
necessarily be entitled to little weight. Evidence which is admissible under the Federal Rules of
Evidence or likely able to be so admissible, should be given greater weight. Finally, evidence
which is so deficient as to be “unverifiable,” like the internet printouts in Unger, should be given
no weight and deemed inadmissible. See generally, 401 F.3d at 424.
B. The Motion to Strike
Here, aside from arguing that the challenged paragraphs are insufficient standing alone to
support class certification (an argument wholly unrelated to the evidence’s admissibility), the City
contends that even if the Federal Rules of Evidence do not strictly apply, the declaration’s use of
the word “we” “does not indicate who actually made the calls to the[] individuals,” so as to
preclude a finding of personal knowledge. Doc. #149 at 6–7. The City further argues that
[t]he alleged statements by unidentified individuals pertaining to their memory of
the procedures carried out in Tupelo Municipal Court are clearly hearsay and the
9
fact that no name of any declarant is mentioned in the declaration makes this
“evidence” unreliable to the point that it should not be considered evidence.
Id. at 7.
Edwards responds that his counsel used “I” and “we” interchangeably and that Dockins
“spoke directly with the potential class members,” as reflected by certain “transcripts” and exhibits
submitted in opposition to the motion to strike. Doc. #156 at 3–4. The City does not dispute the
representation that Dockins spoke with the prospective class members, so as to have personal
knowledge of the conversations. Rather, it replies that the exhibits “show that none fit within the
proposed class definition and highlight the inherent unreliability” of Exhibit A. Doc. #157 at 2.
Thus, at its heart, the motion to strike argues that because the declaration does not identify
the prospective class members who made the statements, the challenged paragraphs are simply too
unreliable to be considered at the class certification stage. However, the Court does not find the
declaration, which is based on Dockins’ personal knowledge and supported, at least in part, by
other exhibits, to be so deficient as to be deemed unverifiable and inadmissible. Indeed, the fact
that the parties can argue over the reliability of the statements based on extrinsic evidence suggests
that the challenged paragraphs are verifiable. Accordingly, the challenges to the accuracy and
reliability of paragraphs 8 and 9 are properly characterized as challenges “to credibility, not
admissibility.” Romeo v. Antero Res. Corp., No. 1:17CV88, 2020 WL 1430468, at *6 (N.D.W.V.
Mar. 23, 2020). Under such circumstances, motions to strike such evidence should be denied. Id.
III
Conclusion
For the reasons above, the City’s motion to strike [148] is DENIED.
SO ORDERED, this 21st day of August, 2020.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE
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