Stinson et al v. The City of New York

Filing 34

MEMORANDUM & OPINION: For the reasons set forth above, Plaintiffs' motion for class certification is granted. The class certified is defined to include individuals who were issued summonses that were later dismissed upon a judicial finding of fa cial insufficiency and who were ticketed without probable cause. Individuals who were issued summonses that survived the defect review process but were dismissed upon a judicial finding of facial insufficiency are presumptive members of the class, bu t Defendants can challenge any presumptive class members on grounds that the summons at issue was dismissed for reasons other than a lack of probable cause. The applicable class period is May 25, 2007 to the present, pursuant to the three year statut e of limitations governing actions brought pursuant to 42 U.S.C. § 1983. The class is certified under both Rules 23 (b) (2) and 2 3 (b) (3), with the Rule 23 (b) (2) class seeking declaratory and injunctive relief and the Rule 23(b) (3) class se eking money damages. Plaintiffs Sharif Stinson, Ryburn Walkes, Gary Shaw, Michael Bennett, Chanel Meausa. David Thompson, Julius Dixon, Jeremy Thames, Leander Griffin, Ricardo Jones, Victor Breland and Lindsey Riddick will serve as class representati ves, and Jon Norinsberg, Esq. and Cohen & Fitch LLP will serve as class counsel. re: 12 MOTION to Certify Class. filed by Gary Shaw, Ricardo Jones, David Thompson, Mica Ancrum, Jamel Towe, Mariam Farnum, Brian Morris, Jocelyn Ferdinand, Sean Pett igrew, Michael Bennett, Sharif Stinson, Chanel Meausa, Christian Dudley, Joseph Sarpong, Ryburn Walkes, Julius Dixon, Jeremy Thames, Victor Breland, Michael Riddick, Lindsey Riddick, Charlene Finley, Leander Griffin. (Signed by Judge Robert W. Sweet on 4/23/2012) (djc)

~"~-'-"-""'-"-'--."

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

--x
SHARIF STINSON, et al.,
Plaintiffs,
10 Civ. 4228 (RWS)
against ­
OPINION
CITY OF NEW YORK, et al.,
Defendants.

- -x
A P PEA RAN C E S:
Attorneys for the Plaintiff
COHEN & FITCH LLP

225 Broadway, Suite 2700

New York, NY 10007

By: Joshua P. Fitch, Esq.

Gerald M. Cohen, Esq.
THE LAW OFFICES OF JON L. NORINSBERG, ESQ.

225 Broadway, Suite 2700

New York, NY 10007

By: Jon L. Norinsberg, Esq.

At

for the Defendants

MICHAEL A. CARDOZO

CORPORATION COUNSEL OF THE CITY OF NEW YORK

100 Church Street

New York, NY 10007

By: Qiana C. Smith Williams, Esq.

Sweet, D.J.

Plaintiffs Sharif Stinson, Mariam Farnum, Charlean
Finley, Ryburn Walkes, Jamel Towe, Christian Dudley, Joceley
Ferdinand, Gary Shaw, Michael Bennett, Chane 1 Meausa, David
Thompson, Julius Dixon, Joseph Sarpong, Jeremy Thames, Sean
Pettigrew, Leander Griffin, Brian Morris, Mica Ancrum, Ricardo
Jones, Victor Breland, Lindsey Riddick and Michael Riddick
(collectively,

"Plaintiffs"), bring this putative class action

against the City of New York, Raymond Kelly, the Commissioner of
the New York Police Department

("NYPD"), and unnamed New York

City Police Officers (collectively,

"Defendants"), alleging that

Defendants have implemented and sanctioned a policy, practice
and custom of issuing unconstitutional summonses, in violation
of 42 U.S.C.

§

1983, and the First, Fourth, Fifth, Eighth and

Fourteenth Amendments to the United States Constitution.

Plaintiffs allege that the NYPD is engaged in a
widespread pattern and practice of issuing summonses to
individuals without probable cause and that NYPD officers are
explicitly instructed to issue summonses regardless of whether
any crime or violation has occurred in order to meet a minimum
quota requirement set forth by the NYPD.

Plaintiffs contend

that the NYPD consistently punishes officers who issue fewer
1

summonses and rewards police officers who issue more summonses,
irrespective of whether probable cause existed for the
summonses' issuance.

Plaintiffs seek equitable relief in
declaration that Defendants' pol

form of (1) a

ies, practices and customs

violate the law and Constitution as

leged,

(2) a class -wide

injunction enjoining Defendants from enforcing a quota system
the issuance

summonses,

(3) an order directing that

immediate remedial training on the proper legal grounds for the
issuance of summonses be provided to all current members of the
NYPD (in the precincts and the police academy) and (4) an order
directing Defendants to put in place a system for monitoring the
summonses issued and the legal basis for their issuance such
that baseless summons can be dismissed.
Plaintiffs

compensatory and punit

to 42 U.S.C.

§

Additionally,
damages and, pursuant

1988, attorneys'

Plaintiffs now move

class certification, approval

class representatives and appointment of class counsel
pursuant to Rules 23 (a), 23 (b) (2), and 23 (b) (3) of the Federal
Rules

Civil Procedure.

2

Based on the

ts and conclusions set forth below,

aintiffs' motion is granted, a class is certified under both
Rules 23(b) (2) and 23(b) (3) and class representatives and class
counsel are appointed.

The class is defined to include

individuals who were issued summonses that were later dismissed
upon a judicial finding of facial insuff
ticketed without probable cause.

iency and who were

Individuals who were issued

summonses that survived the New York City Citywide Summons
Operations' defect review but were dismissed during the secondround review process upon a judicial finding of facial
insufficiency are presumptive members of the class, but
Defendants can challenge any presumptive class member on grounds
that the summons at issue was dismissed for reasons other than a
lack of probable cause.
declaratory and injunct

The class is ent

led to seek

relief, pursuant to its certification

under Rule 23(b) (2) ( as well as money damages, pursuant to its
certification under Rule 23(b) (3).

Plaintiffs Sharif Stinson,

Ryburn Walkes, Gary Shaw, Michael Bennett, Chanel Meausa{ David
Thompson, Julius Dixon{ Jeremy Thames, Leander Griffin{ Ricardo
Jones, Victor Breland and Lindsey Riddick 1 will serve as class

1

Pursuant to the Joint Consent Order, endorsed by the Court
on June 24{ 2011, Plaintiffs Joceley Ferdinand, Jamel Towe,
Joseph Sarpong, Sean Pettigrew and Michael Riddick were removed
as class representatives. Additionally, pursuant to the Order{
any proposed class representative who failed to appear
3

representatives, and Cohen & Fitch LLP and Jon L. Norinsberg,
Esq. shall serve as class counsel.

Prior Proceedings

This action was initiated on May 25, 2010.
filed an amended complaint on August 31, 2010
Class Action Complaint") .

Plaintiffs

(the "Amended

Plaintiffs filed the instant motion

for class certification on February 4, 2011.

Following the

resolution of various motions regarding pre-certification
discovery, the parties entered a stipulation as to the scope of
depositions to be conducted prior to the briefing of the instant
motion.

Following that discovery period and further briefing,

the class certification motion was marked fully submitted and
heard on November 16, 2011.

The Facts

The following facts are drawn from the Amended Class
Action Complaint and the declarations, exhibits and affidavits

deposition by July 15, 2011, would withdraw as a class
representative. Accordingly, PI ntiffs Mariam Farnum, Charlean
Finley, Christian Dudley, Brian Morris and Mica Ancrum are no
longer proposed class representatives since they failed to
timely appear for deposition.
4

submitted with respect to Plaintiffs' motion for class
certification.

These facts are not in dispute except as noted

below.

A. The Plaintiffs

According to the Amended Class Action Complaint,
Plaintiffs are twenty-two men and women between the ages of 18
and 44 years old.

Each Plaintiff alleges that

or she has

been issued one or more summonses by police officers without
probable cause, in Manhattan, Queens, the Bronx or Brooklyn and
that such summonses were subsequently dismissed.
have sustained inj

Each

aims to

es as a result of these encounters

including, but not limited to, fear of the possibility of
receiving summonses without probable cause in the future.

B. The Citywide Summons Operation

Accompanying their opposition to
for class certification, Defendants

aintiffs' motion

submitted excerpts from

the Annual Reports of the Criminal Court of the
for

ty of New York

years 2004, 2005, 2006, 2007, 2008 and 2009.

reports provide a description

the
5

These

tywide Summons Operation.

According to the reports, summonses can be issued from
over forty certified agencies, including the NYPD, Metropolitan
Transportation Authority and the New York City Fire Department,
among others.

These authorized agenc

deliver summonses to

the Criminal Court's Central Receiving Unit.

Once the summonses

are received, the Central Receiving Unit looks for"

ous

defects" that would prohibit the summons from being docketed.
Such serious defects include a missing signature or narrative or
an improper return date.

Following this review, the summonses

are then scanned into the Criminal Court's Summons Automated
Management System.

After data ent

staff log the information

and create a docket, the summonses are then forwarded to the
appropriate county's summons office where the Associate Court
Cl

in charge coordinates with the Supervising Judge's office

to ensure that, in the words

the Annual Reports, "a timely

review for legal sufficiency takes place."

In Bronx, Kings, New

York and Queens Counties, this review for "legal sufficiency"
takes place prior to the scheduled arraignment date.
that survive this judicial review are then
arraignment.

Summonses

endared for

In Richmond County, summonses are reviewed for

legal sufficiency at

scheduled arraignment session.

As

such, the Citywide Summons Operation involves two stages of
6

review: an initial

t review performed by the Central

Receiving Unit, and then a review for "legal
performed by a judici

ficiency"

ficer.

The charts accompanying the statistics in the Annual
Reports describe the two rounds of review as "De

t Review" and

"Facial Sufficiency Review," and the Annual Reports'
presentation of the data
ficiency" with "Facial

es the "timely review for legal
ficiency Review."

See N.Y.C. Crim.

Ct. Annual Rept. 2009 at 33 35 (describing summons

ew

s and presenting data, noting "Dism. Insuff." term
"represents the number of summonses dismissed as part
ing the number

pre-arraignment review" and
fi

the
summonses

surviving defect review minus the numbered dismissed as

insufficient to represent those "Summonses Surviving Faci
Suffic

Review."); see also N.Y.C. Crim. Ct. Annual

2008 at 37 39; N.Y.C. Crim. Ct. Annual Rept. 2007 at 35-37;
N.Y.C. Crim. Ct. Annual Rept. 2006 at 46-48.
"legal

As such,

terms

ficiency" as used in the Annual Reports and "facial

sufficiency" appear to be synonymous.

tywide Summons Operation can thus be described

7

as follows.

2

When an NYPD officer observes illegal conduct, he

issues a summons and, before the return date

l

files an

accusatory instrument with the New York City Criminal Court.
Once this accusatory instrument is filed and delivered to the
Court's Central Receiving Unit, it is screened for defects

l

such

as a missing signature or narrative, or improper return date.
Summonses that survive this defect review are then forwarded to
the appropriate county/s summons office, where the Associate
Court Clerk and Supervising Judge's office ensure
review

legal sufficiency takes place.

synonymous with faci

a timely

Legal sufficiency is

sufficiency, a term that is defined in

the New York Criminal Procedure Law.

C. Reports Generated by the Office of Court Administration

In addition to a description of New York City's
Citywide Summons Operation, the parties have also submitted
statistics obtained from the Office of Court Administration
(OCA).

These reports, entitl

"Caseload Activi

2

Report

The applicable New York State statutes empowering NYPD
officers to issue summonses, requiring NYPD officers to file an
accusatory instrument with the Criminal Court for the City of
New York subsequent to issuing a summons and outlining the
guidelines by which courts review summonses for facial
suff iency are described more fully in the section discussing
ascertainability.
8

Summons Cases,lI contain data for the years 2004, 2005, 2006,
2007, 2008 and 2009 and provide detail by geographic area of the
number of new summonses calendared, the total number of
dispositions and the means by which the disposition was reached,
dismissal, found

i.e. dismissed, adjourned in contemplation

guilty, pled guilty, acquitted or other disposition.

The OCA data reveals that, in total, over the period
from 2004 through 2009, there were 3,597,964 summonses filed.
Of those, 223,716 were dismissed during the first-round defect
review, and 620,149 were dismissed during the second round
facial sufficiency review.

In percentage terms, between 2004

and 2009, 6.2% of summonses filed were dismissed prior to
arraignment as defective and 17.2% of summonses filed were
dismissed prior to arraignment as facial

insufficient.

The

percentages have remained fairly constant from 2004 through
2009.

In 2004, 5.8% of summonses filed were dismissed as

defective, 16.7% of summonses filed were dismissed as
insufficient.

In 2005, it was 6.2% and 18.2%; in 2006

6.0% and 19.4%; in 2007,

ially
it was

1

it was 5.9% and 15.5%; in 2008

1

6.7%

and 17.6%; and in 2009[ it was 6.8% and 16.0%.

Plaintiffs note that, between 2004 and 2009, 2[291[425
9

summonses were adjudicated

the New York City Criminal Courts,

and 1,185,412 of those summonses (51.7% of the total
adjudicated) were dismissed.

Plaintiffs also highlight that of

the number of summonses that are adjudicated annually, the
number that are dismissed prior to trial is consistently over
50%:
2007 1

2004, it was 53.6%; in 2005, 53.5%; in 2006
50.7%; in 2008 1 50.5%; and in 2009 1 50.1%.

1

51.3%; in

According to

Plaintiffs, the fact that this percentage has consistently
remained above 50% demonstrates the existence of a pattern or
practice.

Defendants dispute Plaintiffs

l

conclusions concerning

the OCA statistics.

Of the summonses that were dismissed

l

1,945 (less than

.1%) resulted in an acquittal, which Plaintiffs interpret as

meaning these summonses were dismissed after trial.

According

to Plaintiffs, this reveals that over 99% (99.9%) of all
dismissals

l

numbering some 1,183,467, occurred prior to trial as

the result of a judicial finding that those summonses were
legally insufficient to support the charges alleged.

Again,

Defendants dispute the conclusions Plaintiffs have reached
concerning this data.

D. Tape Recordings of NYPD Roll Call Meetings
10

In addition to the OCA data, Plaintiffs have submitted
tape recordings obtained from NYPD Officers Adhyl Polanco
(nPolanco") and Adrian Schoolcraft (nSchoolcraft"), as well as
accompanying affidavits of authenticity.
provided have

The recordings

so been presented to the Honorable Shira A.
of New York, 813 F.

Scheindlin in the case of

Supp. 2d 417 (S.D.N.Y. 2011), a case in which African-American
suspects brought a putative class action, under 42 U.S.C.

§

1983, against the City of New York, the Police Commissioner, the
Mayor and police officers, alleging a pol

of stops and fri

by the NYPD on the basis of race or national origin, in
violation of Title VI and

Fourth and Fourteenth Amendments.

According to his affidavit, Polanco has been a member
of the NYPD since 2005 and, from 2006 to December 2009, served
as a patrol officer in the 41 st Precinct in the Bronx.
1S

currently suspended.

Polanco

In September and October 2009,

made audio recordings of precinct roll

anco

I meetings during

which officers would receive oral instructions from trainings
sergeants, patrol squad supervisors and platoon commanders,
among others.

Schoolcraft, according to his affidavit, is also

a suspended member of the NYPD.

From September 2003 through
11

October 2009, Schoolcraft worked as a patrol officer in the 81 st
Precinct in Brooklyn, and, between April 2008 and October 2009,
he made audio recordings of roll

I meetings.

According to the excerpted portions cited in

Class

Action Amended Complaint, Polanco's tape recordings from the 41 st
Precinct include the following comments from Polanco's superior
officers: "I spoke to the [commanding officer] for about an hour
and half.

The activi

[is] 20 and 1.

[summonses] and 1 [arrest].
so it's 20 and 1."

How?

. They want 20

I don't know.

Alright/

"Next week you could be at 25 [summonses]

and 1 [arrest], you could be at 35 [summonses] and 1 [arrest]
and guess what?

Until you

cide to quit this job and become a

pizza hut delivery man, this is what you're going to be doing
until then."

"Things are not going to get any better, it's

going to get a lot worse.

If you think 1 [arrest] and 20

[summonses] is breaking your balls, guess what you are going to
be doing?

You're going to be doing a lot more, a lot more than

what you think."

"It's real

non-negotiable,

don't do it now, I'm gonna have you work with

'cause if you
boss to make

sure it happens."

schoolcraft's recordings from the 81 st Precinct reveal
12

the

lowing comments from supervising officers: "He wants at

least 3 seatbelts [summonses]
others [summonses]
period or a month.

/I

f

1 cell phone [summons] and 11

"I see 8 fucking summonses for a 20 day
If you mess up, how the hell do you want me

to do the right thing by you?"
looking at the numbers.

"I told you last month, they're

Ain't about losing your job,

can make your job real uncomfortable."
how many losers do we have?
write?

"How many superstars and

How many summonses does the squad

ty.

We need more act

[but] they

If your productivity falls below

par, either you or the C.O. is going to have to answer."

"We

need 250's [a type of summons], we need arrests, quality of li
enforcement [C-summonses]

I

them in a car, 3 on foot."
numbers anyway.

deal.

"Go through

motions and get your

Donlt be the one caught out there.

yelling at everyone about
make 'em move.

community visits, we need, get 2 of

points.

II

Marino/s

"If they're on a corner,

If they don't want to move, lock 'em up.

Done

You can always articulate [a charge] later."

E. January 14, 2006 Ruling Of Arbitrator Bonnie Siber

Weinstock

In addition to the audio recordings, Plaintiffs have
submitted a January 14, 2006 decision from Arbitrator Bonnie
Siber Weinstock addressing the 75 th Precinct's
13

leged

enforcement of a traffic summons quota.

While the Arbitrator

received evidence regarding quotas for a variety of

leged

quotas, including moving violations, parking tickets, quality of
li

summonses and arrests, the arbitrator addressed only the

alleged quota for traffic violations.

In the decision, the

Arbitrator framed the issue in the proceeding to be: "Did the
New York City Police Department violate New York State Labor Law
Section 215 a by establishing and maintaining a summons quota
for traffic violations in the 75th Precinct and by penalizing
officers for failing to meet the stated number of traffic
violations, including parking, standing and stopping?

If so,

what shall be the remedy?"

Citing testimony from NYPD officers and various
documents describing how a police officer's failure to issue the
required number of summonses would result in a substandard
performance rating, the Arbitrator found that the 75 th Precinct
had instituted and enforced a traffic summons quota in violation
of New York State Labor Law Section 215-a:

The
aim raised
this proceeding is sustained in
accordance with the Opinion herein.
The New York City
Police Department violated New York State Labor Law Section
215-a by establishing and maintaining a summons quota for
traffic violations in the 75th Precinct and by penalizing
officers for failing to meet the stated number of traff
14

violations, including parking, standing and stopping.
The
City shall cease and desist from maintaining a vehicular
ticket quota.
The City shall, upon request, revise the
performance evaluation of any employee whose marks were
reflective of a failure to meet the illegal ticket quota.
Employees in the 75th Precinct shall have ninety calendar
(90) days from the date of this Award within which to
contact the Employer and express a desire to have their
performance evaluation(s) reviewed and revised.

The Standard For Class Certification

Class certification is appropriate where the proposed
class meets, by a preponderance of the evidence following a
court's "rigorous analysis," the requirements of Rule 23(a) and
the proposed class constitutes one of the types of classes
enumerated in Rule 23 (b)

See Wal-Mart Stores, Inc. v. Dukes,

131 S.Ct. 2541, 2551-52, 180 L.Ed.2d 374 (2011); In re Salomon
Analyst Metromedia Litig., 544 F.3d 474, 478

(2d Cir. 2008);

Teamsters Local 445 Freight Div. Pension Fund v. Bombardier
Inc., 546 F.3d 196, 202

(2d Cir. 2008); In re Initial Pub.

Offerings Secs. Litig., 471 F.3d 24, 29

(2d Cir. 2006).

"Frequently that 'rigorous analysis' will entail some overlap
with the merits of the plaintiff's underlying claim."
131 S.Ct. at 2551; accord Bombardier, 546 F.3d at 202.

Dukes,
However,

"in making such determinations, a district judge should not
assess any aspect of the merits unrelated to a Rule 23
15

requirement.

II

In re IPO, 471 F.3d at 41.

discretion on questions of

The Court has

ass certification because "the

district court is often in the best position to assess the
propriety

the class and has the ability

. to alter or

modify the

ass, create subclasses, and

ify the class

whenever warranted."
., 262 F.3d 134, 139 (2d Cir. 2001).

Rouse

------''---­

The four prerequisites of Rule 23(a) are as follows:

(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or
common to the class; (3) the claims or defenses of
representative parties are typical of the claims or
fenses of the class; and (4) the representative
ies
will fairly and adequately protect the interests of the
class.

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

Plaintiffs must also show the

tion is ascertainable.

def

identifiable class
re

to object

ass

In re IPO, 471 F.3d at 44 45.

"An

sts if its members can be ascertained by
criteria.

II

In re Fosamax Prods.

.,248 F.R.D. 389,395 (S.D.N.Y. 2008)

--'--""-­

Ether Prods. Liab. Lit
337 (S.D.N.Y. 2002)).

16

abo

(quoting In re
., 209 F.R.D. 323,

In addition to meeting the requirements of Rule 23(a),
the proposed class must constitute one of the types of classes
enumerated in Rule 23(b).

aintiffs have moved

class

certification under both Rule 23(b) (2) and Rule 23(b) (3).
23 (b) (2) provides for class certification if

Rule

requirements of

Rule 23(a) are met and:

the party opposing the class has acted or refused to
act on grounds that apply generally to the class, so
that final
unctive
f or corresponding
declaratory relief is appropriate respecting the class
as a whole [ . ]

Fed. R. Civ. P. 23 (b) (2).

Rule 23 (b) (3) provides for class

certification if the requirements

Rule 23(a) are met and:

the court finds that the questions of law or fact
common to class members predominate over any questions
affect
only individual members, and that a class
action is superior to other available methods for
fairly and efficiently adjudicating the controversy.
matters pertinent to
se findings include: (A)
the class members' interests in individually
cont
ling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation
concerning the controversy already begun by or against
class membersi (C) the desirability or undes
ility
of concentrating the litigation of the claims in the
particular forum; and (D)
likely difficulties in
managing a class action.

Fed. R. Civ. P. 23 (b) (3) .
17

The Second

rcuit has described the standard of proof

governing class certification as follows:

(1) a district judge may certify a class only after
making determinations that each of the Rule 23
requirements
been met; (2) such determinations can
be made only if the judge resolves factual disputes
relevant to
Rule 23 requirement and finds that
whatever underlying facts are relevant to a particular
Rule 23
rement have been establi
and is
persuaded to
, based on the relevant facts and the
applicable
standard, that the
rement is
met; (3)
obligation to make such determinations is
not les
by overlap between a
23 requirement
and a merits issue, even a merits issue that is
identical with a Rule 23 requirement; (4) in making
such determinations, a district judge should not
assess
aspect of the merits unrelated to a Rule 23
requirement; and (5) a district judge has ample
discret
to circumscribe both
extent of
discovery concerning Rule 23
rements and the
extent
a hearing to determine whether such
requirements are met in order to assure that a class
certif
ion motion does not become a pretext for
part
trial of the merits.

In re IPO, 471 F.3d at 41.
to evi

\\, [1']

proffered to meet'

requirements of Rule 23

a 'preponderance of the evidence. '"
~--~~~--~------------~~

(quot

standard of proof appli
[is]

In re Flag Telecom

, 574 F.3d 29, 35 (2d Cir. 2009)

Bombardier, 546 F.3d at 202) .

The Plaintiffs Have Satisfied The Rule 23(a) Requirements For

18

Class Certification

only if

As noted above 1 a class may be certif
satisf

the following prerequisites:

(1) the class is so

numerous that joinder of all members is impracticable;
are questions

law or fact common to the class;

(2) there

(3) the claims

or defenses of the representative parties are typical of the
class; and (4) the representat

claims or defenses of
part

will fairly and adequately protect the interests of the

class.
•

--""'-­

R. Civ. P. 23(a)
1

i

see also In re Pfizer Inc. Sec .

No. 04 Civ. 9866 (LTS) (HBP)

(S.D.N.Y. Mar. 29, 2012).

1

2012 WL 1059671

1

at *2

Courts have also found an implied

requirement of ascertainability to the express requirements set
forth in Rule 23(a).

See In re Sadia

F.R.D. 298 1 305 (S.D.N.Y. 2010)
30).

S.A. Sec. Lit

(citing In re IP0

1

'1

269

471 F.3d at

For the reasons set forth below 1 the class satisf

the

four requirements of Rule 23(a) as well as the additional
requirement of ascertainability.

1. Numerosity

For class certification to be appropriate, the
proposed class must be so numerous that joinder of all of its
19

individual members would be impracticable.
23 (a) (1)

ialists Sec. Lit

In re NYSE

i

70 (S.D.N.Y. 2009).

See Fed. R. Civ. P.
'1

260 F.R.D. 55

1

69

"The numerosity requirement in Rule

23 (a) (1) does not mandate that joinder of all parties be
only that

impossible

difficulty or inconvenience of

joining all members of the class make use of the class action
Cent. States Se. & Sw. Areas

appropriate. II

Fund v. Merck-Medco

Care

LLC

~~----------~-----------~~------~-----

Cir. 2007) i see also In re

I

504 F.3d 229

l

1

244-45 (2d

Market Makers Antitrust

--------~--~--~-----

Litig'

th & WeI

............~--------~~~

169 F.R.D. 493 1 508 (S.D.N.Y. 1996).

"Numerosity is

presumed when a class consists of forty members or more.
Specialists
of

---"'-----

Sadia l

at a

260 F.R.D. at 70 (citing Consolo Rail

l

I

47 F.3d 473

1

483

(2d Cir. 1995))

i

1I

NYSE
v. Town

see also In re

269 F.R.D. at 304 ("Sufficient numerosity can be presumed
1 of forty members or more. II) •

Here l

the proposed class like exceeds forty members.

Given the figures included in the OCA datal the number
individuals
of thousands. 3

the proposed class could number in the hundreds
AccordinglYI Plaintiffs have satisfied their

3

Because of the three year statute of limitations applicable
to 42 U.S.C. § 1983 1 the applicable class period begins in May
2007. The Criminal Court of the City of New York Annual Reports
establish that the number of summonses issued to putative
plaintiffs in the class as the class is defined below number
20
l

l

burden of establishing numerosity.

2. Commonality

"The commonality requirement is met if plaintiffs'
grievances share a common question of law or fact."
v. Giuliani, 126 F.3d 372, 376
Prod. Liab. Lit
1987)).

However,

(2d Cir. 1997)
'f

Marisol A.

(citing In re

818 F.2d 145, 166-67 (2d Cir.

"[c]ommonality does not mandate that all class

members make identical claims and arguments/ only that common
issues of fact or law affect all class members."
Bradstreet

., 144 F. R . D . 193 / 198

----------------~

( S . D . N . Y. 1 992 )

Port Auth. Police Benevolent Assfn v. Port Auth./
153 54

(2d Cir. 1983)).

Trief v. Dun &
(c

i ng

698 F.2d ISO,

"A court may find a common issue of law

even though there exists some factual variation among class
members' specific grievances."
Corp., 249 F.R.D. 29/ 37

Dupler v. Costco Wholesale

(E.D.N.Y. 2008)

(citation omitted)

some 99,317 in 2008 and 96,100 in 2009.
Data
2010 is not
part of the evidentiary record before the Court/ and statistics
for 2007 include summonses from the January through May 2007
period that are out de the class period.
However/ even when
only the 2008 and 2009 figures are considered, the number of
summonses at issue is at least 195/417. Although putative
plaintiffs may have received more than one summons/
large
quantity of summonses at issue in this litigation assures that
the numerosity requirement of Rule 23(a) is satisfied.
21

aintiffs have alleged that they were victims
of a pattern and practice set and enforced by city offic

s,

the NYPD and New York City Police Officers to stop, search,
seize, arrest and issue summonses to individuals without
probable cause in response to a requirement and constant
pressure to meet a summons quota.

The c

these Plaintiffs

seek to represent includes those who suffered similar injury
"The fact that the

pursuant to the same pattern and pract

claims of the proposed class stem from the same alleged
unconstitutional conduct of the defendants proves the
of common questions of law or fact."

stence

Daniels v.
------~-----~~~----~~

York, 198 F.R.D. 409, 417 (S.D.N.Y. 2001).

In addressing Rule 23(a) 's commonality requirement,
particular attention must be paid to the Supreme Court's recent
decision in Wal-Mart Stores

Inc. v. Dukes.

In the Dukes case,

named plaintiffs were three current and former female
employees of Wal Mart, each of whom alleged that she suffered
unlawful sexual discrimination in pay and promotion.
c

In seeking

certification to bring Title VII claims on behalf of all

current and former female Wal-Mart employees, the named
plaintiffs did not

lege an "express corporate policy against

the advancement of women," Dukes, 131 S.Ct. at 2548, or a
22

"uniform employment practice" that violated the law, id. at
2554.

Instead, the named plaintiffs alleged that Wal-Mart's

general corporate policy was to

low local managers discretion

over their employees' pay and promotion and that this policy of
allowing discretion, coupled with a "corporate culture" of
sexual stereotyping caused women to be disfavored in the
workplace.

Id. at 2548.

The District Court for the Northern

District of California certified the class, basing its finding
commonality on three types of evidence: statistics showing
pay and promotion disparities between men and women, anecdotal
evidence from some 120 women and expert testimony from a
sociologist to the effect that Wal-Mart's corporate culture
rendered it vulnerable to discrimination in discretionary pay
and promotion decision making.

Dukes, 131 S.Ct. at 2549.

The

Ninth Circuit affirmed certification, finding that the named
plaintiffs' evidence established commonality by raising the
issue "whether Wal Mart's female employees nationwide were
subjected to a single set

corporate poli

es (not merely a

number of independent discriminatory acts) that may have worked
to unlawfully discriminate against them
VII."

violation of

tle

Id. at 2549.

Reject

the Ninth Circuit's conclusion, the Supreme
23

Court summarized the commonality requirement as follows:

Commonality requires the pI
iff to demonstrate that the
class members "have suf
the same injury," (citation
omitted). This does not mean merely that they have all
suffered a violation of the same provision
law. Title
VII,
example, can be violated in many ways-by
discrimination, or by hiring and promotion
criteria that result in disparate impact, and by the use of
these practices on the part of many different superiors in
a single company. Quite obviously, the mere claim by
empl
of the same company that they have suffered a
t
VII injury, or even a disparate-impact
tIe VII
ury, gives no cause to
lieve that all t
can
productively be litigated at once. Their cl
must
depend on upon a common contention-for example, the
assertion of discriminatory bias on the part of the same
supervisor. That common contention, moreover, must be of
such a nature that it is capable of classwi
resolution­
which means that determination of its truth or falsity will
an issue that is central to the
idity of each
one of the claims
one stroke.

Dukes, 131 S.Ct. at 2551.

Supreme Court

d that such a

"common connection" was lacking in Dukes because the basis for
liability was not merely

sfavor in pay and promotion, but the

reason why each class member was disfavored.

five-justice

majority noted: "The only corporate policy that plaintiffs'
convincingly establishes is Wal-Mart's 'policyl of
allowing discretion by local supervisors over employment
matters.

On its face,

course

l

that is just the opposite of a

uniform employment practice that would provide the commonali
for a class act

i

it is a policy against having uniform
24

employment pract

Id. at 2554.

II

plaintiffs had not

identified a corporate policy that led to the local managers'
discretion being exercised in a uniformly

scriminatory way,

the Supreme Court held commonality to be lacking.

See id. at

2556-57 ("Because respondents provide no convincing proof of a
companywide discriminatory pay and promotion

icy, we have

concluded that they

stence of any

common question. lI )

not established the

•

where the plaintiffs alleged a

unlike in
corporate policy

scretion to local managers and a corporate

culture hostile to the advancement of women, PIa
have alleged a specific

iffs here

icy promulgated by Defendants,

namely, that Defendants

established a practice by which

NYPD officers issue summonses without probable cause
meet a summons quota.

order to

As such, the Supreme Court's holding in

Dukes supports a finding

Rule 23{a)'s commonality element

s been established in this case.

3. Typicali ty

Rule 23(a) (3) requires that the class representatives
have

ims typical of those

by the class members.
25

"To

establish typicality under Rule 23(a) (3), the party seeking
certi

cation must show that 'each class member's claim arises

from the same course of events and each class member makes
similar legal arguments to prove the defendant's liability.'"
See In re Fl

Telecom, 574 F.3d at 35 (quot

Celani, 987 F.2d 931, 936

(2d Cir. 1993).

satisfied when each class member's claim

Robidoux v.
"Rule 23 (a) (3) is
ses from the same

course of events, and each class member makes similar arguments
to prove the defendant's liability."
291.

In re Drexel, 960 F.2d at

When the same unlawful conduct was directed at or affected

both the named plaintiffs and the prospective class, typicality
is usually met.

See Robidoux, 987 F.2d at 936-37i see also

Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 155 (2d
r. 2001)

(the typicality requirement "is satisfied when each

class member's claim

ses from the same course of events, and

each class member makes similar 1
defendant's liability.II).

arguments to prove the

Typicality may be found to fail in

cases where the named plaintiff was not harmed by the conduct
alleged to have injured the class.

Newman v. RCN Telecom Servs.,

Inc., 238 F.R.D. 57, 64 (S.D.N.Y. 2006).

Here,

proposed class representatives are New

Yorkers who have all allegedly been issued at least one summons
26

without probable cause and suffered injury as a result of an
alleged unconstitutional NYPD
liability in

ice.

The sole theory of

s case is that Defendants have a pattern and

practice of issuing summonses without probable cause for
behavior that did not occur or that does not constitute a
summonsable offense.

As such, the claims here"

same course of events, and

se[] from the

class member makes similar legal

arguments to prove the defendant1s liability."

Cent. States,

504 F.3d at 245 (quotation marks and citation omitted) .

4. Adequacy

The adequacy
23(a) considers "whe

representation inquiry under Rule
1) plaintiff's

rests are

antagonistic to the interest of other members of the class and
2) pIa

iff's attorneys are qualified,

Baffa v. Donaldson, Lufkin & Jenrette Sec.

conduct litigation."
'1

---'=-­

enced and able to

222 F.3d 52, 60

(2d Cir. 2000)

--------- , 260 F.R.D. at 73.

In

i

see also NYSE
to defeat c

certification, there must be "a showing of a genuine conflict"
between the proposed class representative's interests and those
the other members of the class, In re Drexel, 960 F.2d at
291, and "only a

lict that goes to the very subject matter
27

of the litigation will defeat a party's claim of representative
status."

Hirschfeld v. Stone, 193 F.R.D. 175, 183 (S.D.N.Y.

2000) .

fferences in the amount

recoverable damages

generally do not give rise to a conflict.

See, e.g., In re

NASDAQ, 169 F.R.D. at 513.

In this case, Plaintiffs have demonstrated both the
first and second prongs of the test outlined in the Second
rcuit's Baffa decision to be fulfilled.

Plaintiffs' interests

are identical to those of the putative class, as all plaintiffs
have been allegedly injured by the same unconstitutional actions
on the part of Defendants.

See Darquea v. Jarden Corp., No. 06

Civ. 722 (CLB) , 2008 WL 622811

1

at *3

(S.D.N.Y. Mar. 6, 2008)

("All claims alleged arise from the same wrongful conduct, and
thus, Plaintiff's interests
simi

l

recouping money invested, are

to those of the proposed class. As such, named

aintiffs will

rly and adequately protect the interests of

the class.").

With respect to the second prong of the Baffa test
concerning adequacy, Plaintiffs have retained Jon L. Norisberg,
Esq. and the law firm of Cohen & Fitch LLP.

These attorneys are

competent and experienced in federal class action and federal
28

civil rights litigation.

Jon L. Norinsberg is a civil rights

attorney with nearly twenty years of civil litigation
experience l

including civil rights litigation against state and

local governments.

See, e.g.,

ia v. Ci

of New York, No.

11 Civ. 2141 (JGK) , 2012 WL 906958 (S.D.N.Y. Mar. 19, 2012);
__________~~__ , No. 07-CV-4793 (CBA) (RML) , 2011 WL 4625996
(E.D.N.Y. Sept. 30, 2011); Stamile v.

of Nassau, No. CV

10-2632 (SJF) (AKT) , 2011 WL 1754125 (E.D.N.Y. Jan. 31, 2011);
=B=r=a:~n~d~o~n~v~.~C=i~L-0~f-=N=e=w-=Y=o=r~k=,

2010) ;

705 F. Supp. 2d 261

~~~~-=~~____
N~e_w__
Y_o~r_k,

(S.D.N.Y.

No. CV 07-4143 (RJD) (JO), 2008

WL 3884388 (E.D.N.Y. Aug. 13, 2008); Richardson v.
York, No. 02 CV 3651(JG), 2006 WL 2792768
2006).

of New

(E.D.N.Y. Sept. 27,

Similarly, Cohen & Fitch LLP has previously litigated

civil rights actions against the City of New York.
~N=i=b=b=s.-=v=.-=C=i~-=o=f-=N=e=w _Y=o=r-=k,
_

800 F. Supp. 2d 574

Plaintiffs' counsel claim that collective

See, e.g.,

(S.D.N.Y. 2011).

,the two firms have

litigated thousands of civil rights claims against the City of
New York.

Plaintiffs also represent that the partners of Cohen

& Fitch LLP maintain a significant criminal defense practice
and, in that capacity, have spent hundreds
York City Criminal Court's Summons Parts.

hours

the New

As such, Jon L.

Norisberg, Esq. and Cohen & Fitch LLP are qualified to represent
the proposed class and, along with
29

aintif

,will protect the

class members' interests.

Accordingly, the adequacy requirement

Rule 23 (a) (4) has been satisfied.

Defendants contend that Plaintiffs' depos

ion

testimony reveals a lack of competence and is indicative of a
lack

responsibility toward the absent class members.

In

particular, Defendants highlight the testimony of Stinson, who
according to Defendants! testified that he was in a daze when he
met with his attorneys! was distracted by a Yankee game and at
the end of his deposition stated that he did not understand some
of

terms used in the deposition even when he was initi

ly

instructed to inform opposing counsel if he did not fully
understand the questions.

Defendants also contend that other

Plaintiffs demonstrated incompetency concerning basic issues
such as

number of

ass representatives in the case! the

advantages of pursuing the putative plaintiffs! as a class!
Plaintiffs! duties as class representatives!

procedural

posture and goals of the litigation and the general facts of the
case.

Notwithstanding Defendants! contentions! a review of

Plaintiffs! deposition testimony demonstrates that Plaintiffs
have a working knowledge

the litigation and the

30

responsibilities of class representatives. 4

4

See, e.g., Bennett Dep. at 28:23 30:21 ("Q. What is your
understanding about your role in this lawsuit? A. It's to give
testimony on what has happened to me at the hands of the NYPD.
Q. What is the Fourth Amendment? A. It's
right that protects
me against illegal search and seizure for no probable cause. Q.
? A. Yes. Q. As
Do you understand you are a class represent at
you sit here today, what is your understanding of what it means
to be a
ass representative? A. It means that I'm representing
all the people that this has happened to in the
of New
York. Q. Do you understand that as a class representative you
have duties and responsibilities to
class? A. Yes. Q. What
is your understanding of what those duties and responsibilities
are? A. It's to show up, to participate, to give testimony when
you need me, to
in court when I'm needed.
. Q. Are there
other class representatives. A. Yes. There are. Q. What is your
understanding about how many other class representatives there
are? A. Roughly 20."); Meausa Dep. at 29:20 30:23 ("Q. What is
your understanding of your claims in
complaint? A. You'll
understand one of my claims is basically I know what I've been
through and I want to let my story be heard. So I'm going to
tell my side of the story. Even though, you know, it's people
behind me that has their side of the story too, along with the
class act. Q. What is the story you're referring to? A. That the
cops, they feel that they could stop people, innocent people and
do whatever they want and treat them how they want and give them
summonses and walk away and it's okay.
. Q. What do you
bel
that the people are doing illegally? A. I believe the
people are stopped - - innocent people - - and is giving out
summonses for no apparent reason."); Shaw Dep. at 53:18-54:1
("Q. Do you understand the allegations in the complaint? A. Yes.
Q. Tell me what your understanding is? A. Well basically, the
complaint, we're complaining about officers who are pulling over
people in their cars, writing them tickets, taking away
ir
liberties, that's a violation of our civil rights.") i Dixon Dep.
at 38:10 25 ("Q. You said you understand the legal bases for the
claims. Can you explain to me
legal bases? A. I just
explained to you that my Fourth Amendment was being violated.
More than a hundred thousand people's Fourth Amendments are
being violated as far as illegal search and procedures, people
being pulled over or you just getting a BS summons. All right.
Here's a ticket for this. Go to court.
. Q. What rights does
the Fourth Amendment guarantee to you that you
I were
31

Defendants also contend that Plaintiffs are inadequate
as

ass representatives because of their lack of understanding

of the fee structure in the litigation.

Courts have repeatedly

held that the financial resources of the proposed class
representatives are relevant in determining adequacy, and class
certification may be denied where the named plaintiffs fail to
assume the responsibility for costs of litigation.
Goodman, 9 F. Supp. 2d 163, 172 (E.D.N.Y. 1998).

See Weber v.
Here,

aintiffs' deposition testimony

according to Defendants,

displays their lack of knowledge concerning the fee arrangement
with counsel, most Plaintiffs testified that class counsel were
responsible for the costs of the litigation, and Plaintiffs were
unaware that class counsel could later bill Plaintiffs for the
cost of the suit.

Defendants claim that none of the Plaintiffs

appear to have the financial resources necessary to pay attorney
fees and costs if Plaintiffs' claims are unsuccessful.

Defendants' argument concerning Plaintiffs' financial
ability to pay defendants

I

costs is unavailing

l

as it is

"irrelevant that [the] named plaintiffs were unaware of
potential liability

defendants

I

fees and costs, particularly

violated? A. That I can/t just unlawfully be stopped and you
just unlawfully search me. You have to have probable cause.")
32

as plaintiffs! counsel are likely paying the costs of this
action."

Casale v. Kel

257 F.R.D. 396! 412

(S.D.N.Y. 2009)

With respect to the contention that Plaintiffs! deposition
testimony suggested a lack of understanding concerning their
ultimate responsibility for fees! the deposition testimony! in
several instances! reveals Plaintiffs! understanding that they
are responsible for the fees associated with the litigation.
See! e.g.! Meausa Dep. 36:1 7 ("Q. Are you aware that you could
potentially be liable for costs if this case loses? A. Yes. Q.
What do you understand that to mean? A. If everybody in the
class act drops out! I!m the only one there! that I will be
responsible for the costs."); Thames Dep. 52:3 12

("Q. Are you

aware of your potential liability if you lose this case? A. Yes.

Q. What is your liability if you

what is your potential

liability if you lose this case? A. I think I have to pay some
fees or something like that! if I!m not mistaken. Q. You!re
aware that if you do not win! you may be liable for attorneys

I

fees and cost? A. Yes.").

Defendants also criticize the adequacy of the proposed
class representatives! criti
competency and credibility.

zing Plaintiffs! reliabilitYt
Defendants note that certain

Plaintiffs! backgrounds contain criminal arrests and
33

convictions, a failure to pay taxes and examples of conduct
demonstrating a proclivity for untruthfulness.
Court has observed,

However, as this

"According to the leading commentator on

class actions, most courts have rejected challenges to adequacy
based on allegations that plaintiffs backgrounds were alleged to
include 'unrelated unsavory, unethical or even illegal conduct.'
As set forth above, a proposed class representative's interest
may only be said to be in conflict with those other class
members where the class representative is vulnerable to unique
defenses and sharp attacks relevant to the issues in the
litigation."

German v. Federal Home Mortg. Corp., 168 F.R.D.

145,155 (S.D.N.Y. 1996)
on Class Actions,

(citing 1 H. Newberg
§

&

3.36 (2d ed. 1992)).

A. Conte,
Other courts

in this district have rejected similar attempts to use the named
plaintiffs' background or credibility as a basis for challenging
the adequacy of class representatives.
F.R.D. at 412

See, e.g., Casale, 257

("Frankly put, defendants' assault on named

plaintiffs' capability to represent the interests of similarly
situated individuals is disrespectful and blatantly selfserving.")

i

Cromer Fin. Ltd.

(S.D.N.Y. 2001)

, 205 F.R.D. 113, 125

(refusing to bar class representatives on the

grounds of credibility where it was not clear that plaintiffs
fabricated testimony) .
34

Accordingly, Plaintiffs have established their burden
of demonstrating the adequacy of both class counsel and the
class representatives.

5. Ascertainabili ty

Although not expressly stated in the Rule, courts have
found an implied requirement of ascertainability to the express
requirements set forth in Rule 23(a).

See In re Sadia, 269

F.R.D. at 305 (citing In re IPO, 471 F.3d at 30).
above,

As noted

"[a]n identifiable class exists if its members can be

ascertained by reference to objective criteria."
248 F.R.D. at 395 (quoting In re MTBE

t

In re Fosamax,

209 F.R.D. 337).

Put

another waYt the ascertainability requirement means that "the
class description is sufficiently definite so that it is
administratively feasible for the court to determine whether a
particular individual is a member.1f Casale

t

257 F.R.D. at 406;

see also In re Amaranth Natural Gas Commodities
F.R.D. 366, 376-77 (S.D.N.Y. 2010)

ion, 269

(" [T]he requirement that

there be a class will not be deemed satisfied unless the class
description is sufficient

definite so that it is

administratively feasible for the court to determine whether a
35

particular individual is a member. II) •
ascertainability "is not demanding.

1I

The standard for
Gortat v. Capala Bros.,

Inc., No. 07 CV-3629 (ILG) , 2010 WL 1423018, at *2,
9, 2010).

(E.D.N.Y. Apr

"It is designed only to prevent the certification of

a class whose membership is truly indeterminable.

1I

rd.

In their motion for class certification, Plaintiffs
seek to define the class "consisting of all persons who have
been or will be issued a summons in the absence of probable
cause for offenses that were never committed and whose summonses
were ultimately dismissed prior to trial.

1I

Plaintiffs,

subsequent to limiting the applicable class period to all
summonses dismissed from May 2007 to the present based on the
three year statute of limitations, assert that "the class is
readily ascertainable by the identi

cation of those individuals

who had their summonses dismissed prior to trial.
Plaintiffs'

1I

However,

fort to demarcate cleanly the boundaries of the

class fail, as Plaintiffs cannot ascertain which summonses were
issued without probable cause merely by reference to the number
of summonses dismissed.

Dismissal of a summons does not, by itself, indicate
that the summons was issued without probable cause.
36

As

described above, the Citywide Summons Operation involves a twostep review process: first, the Central Receiving Unit conducts
a defect review/ dismissing those summonses that include a
serious defect such as a missing signature or narrative or
improper return date; second, the Associate Court Clerk and
Supervising Judge in each county coordinates a process where the
summonses are reviewed for facial sufficiency.

A review of relevant New York statutes is necessary to
precisely describe what is meant by the term "facial
sufficiency."

The first issue concerns the colloquial use of

the term "summons" to describe the notice served upon an
individual by a police officer who observes illegal activity.
The Criminal Court of the City of New York Annual Reports
describe these notices as "summonses/" and many New York State
statutes

so use that term.

However, comparing the Criminal

Procedure Law's definition of "appearance ticket" and "summons"
reveals that the notices at issue in this present action are
more accurately described as "appearance tickets/If as that term
is defined

§

the CPL:

150.10 Appearance ticket; definition, form and content

1. An appearance ticket is a written notice issued and
subscribed by a police officer or other public servant
37

authorized by state law or local law enacted pursuant to
the provisions of the municipal home rule law to issue the
same, directing a designated person to appear in a
designated local criminal court at a designated future time
in connection with his alleged commission of a designated
offense. A notice conforming to such definition
constitutes an appearance ticket regardless of whether it
is referred to in some other provision of law as a summons
or by any other name or title.

§

130.10 Summonsi definition, function, form and content

1. A summons is a process issued by a local criminal court
directing a defendant designated in an information, a
prosecutor's information, a felony complaint or a
misdemeanor complaint filed with such court, or by a
superior court directing a defendant designated in an
indictment filed with such court, to appear before it at a
designated future time in connection with such accusatory
instrument.
The sole function of a summons is to achieve a
defendant's court appearance
a criminal action for the
purpose of arraignment upon the accusatory instrument by
which such action was commenced.

2. A summons must be subscribed by the issuing judge and
must state or contain (a) the name of the issuing court,
and (b) the name of the defendant to whom it is addressed,
and (c) the name or title of an offense charged in the
underlying accusatory instrument, and (d) the date of
issuance of the summons, and (e) the date and time when it
is returnable, and (f) a direction that the defendant
appear before the issuing court at such time.

N.Y. C.P.L.

§§

150.10, 130.10.

accompanying N.Y. C.P.L.

§

The "Practice Commentaries"

150.10 assist in demarcating the

boundary between an appearance ticket and a summons:

Due to the fact that an appearance ticket may be referred
to as a summons or a traffic ticket or, as the statute
38

says, "by any other name or title", this section defines
the appearance ticket in terms of a concept that embraces
all notices that
1 within
description, as
distinguished from defining a specific, designated
document.
For example, an instrument designated by the
statute as a "summons" mayor may not
an appearance
ticket.
If the summons is issued pursuant to CPL Article
130, it obviously is not an appearance ti
,as quickly
can be determined by comparing
definition in CPL §
130.10 with the def
ion in the present sect
But
another type of summons may well be an appearance ticket ­
e.g., the traffic summons (see Vehicle & Traffic Law, §
207). Thus the question of whether an instrument 1
ed
"summons", for example, is for CPL purposes a summons or an
appearance ticket depends upon the statute that describes
it and authorizes its issuance.

Preiser, Practice Comment
2012).

es, N.Y. C.P.L.

§

150.10 (McKinney's

Although an "appearance ticket" and a "summons" are both

methods of requiring a defendant's appearance in local criminal
court for arraignment, an appearance ticket is available when
"no criminal action against a person has been commenced in any
court," while a summons is available only "[a]fter a criminal
action has been commenced in a local criminal court by the
filing
110.10.

an accusatory instrument therewith./I

N.Y. C.P.L.

§

Because the notices served on Plaintiffs in this action

represent instances where a police officer has observed illegal
conduct, written a citation and served an individual, these
notices are more accurately described as "appearance ti

39

sft

rather than "summonses. lls

Police officers are authorized to

serve an appearance ticket, in lieu of making an arrest,
offense other than a Class A, B, C or D f
of certa
jumping.

sexual of

or offenses

See N.Y. C.P.L.

§

any

ony or in violation
ated to escape or bail

150.20(1).

"At or prior to the court date, the officer or other
public servant who issued the appearance ticket will file an
accusatory instrument
criminal court.1I
150.10.

typically an information - in local

Preiser, Practice Commentaries, N.Y. C.P.L.

The police

§

ficer issuing the appearance ticket files

the accusatory instrument pursuant to N.Y. C.P.L.

§

150.50:

§ 150.50 Appearance ticket; filing a local criminal court

accusatory instrument; dismissal of insufficient instrument

1. A police
ficer or other public servant who has issued
and served an appearance ticket must, at or
fore the time
such appearance ticket is returnable, file or cause to be
filed with
local criminal court in which it is
returnable a local criminal court accusatory instrument
charging the person named in such appearance ticket with
the offense
fied there
Nothing
in contained
shall authorize the use of a simplified information when
not authorized by law.
2. If such accusatory instrument is not sufficient on its
face, as prescribed in section 100.40, and if the court is
5

This distinction in terminology is relevant in terms of
describing how these notices are reviewed for
ial
ficiency.
sewhere in this opinion, the colloquial term
"summons" is used.
40

satisfied that on the basis of the available facts or
evidence it would be impossible to draw and file an
accusatory instrument which is
ficient on its face,
must dismiss such accusatory instrument.

N.Y. C.P.L. § 150.50.
other authorized off

Accordingly, once the NYPD officer or
ial issues the citation, the officer then

files an accusatory instrument in the Criminal Court of the City
of New York.

This accusatory instrument must be suff

ient on

its face, as mandated in N.Y. C.P.L. § 100.40, which itself
refers to N.Y. C.P.L.

§

100.15:

100.40 Local criminal court accusatory instruments;
sufficiency on face

§

1. An information, or a count thereof, is sufficient on its
face when:
(a) It substant
ly conforms to the requirements
prescribed in section 100.15i and
(b) The allegations of the factual part of the
information, together with those of any supporting
depositions which may accompany it, provide reasonable
cause to believe that the defendant committed the
offense charged in the accusatory part of the
information; and
(c) Non-hearsay
legations of
factual part
information and/or of any supporting depositions
establish, if true, every element of the offense
charged and the defendant's commission thereof.

the

100.15 Information, misdemeanor complaint and felony
complaint; form and content

§

41

1. An information, a misdemeanor complaint and a
felony compl
must each specify
name of the
court with which it is filed and the title of the
action, and must be subscribed and
fied by a
person known as the "complainant."
complainant
may be any person having knowledge, whether personal
or upon information and belief,
commission of
the offense or offenses charged.
instrument must
contain an accusatory part and a
1 part. The
complainant/s verification of the
rument is deemed
to apply only to the factual part thereof and not to
the accusatory part.
2.
accusatory part of each such instrument must
designate the offense or of
s charged. As in the
case of an indictment, and subject to the rules of
applicable to indictments, two or more
may be charged in
counts. Also as
case of an indictment, such instrument may
charge two or more defendants provided that all such
defendants are jointly charged with every offense
all
therein.
3.
factual part of such
trument must contain a
statement of the complainant
leging facts of an
iary character supporting or tending to support
charges. Where more than one offense is charged,
the factual part should consist of a single factual
account applicable to all
counts of the accusatory
The factual all
may be based either
upon personal knowledge
complainant or upon
information and belief. Nothing contained in this
section, however, limits or affects the requirement,
prescribed in subdivision one of section 100.40/ that
order for an informat
or a count thereof to be
sufficient on its facet
element of the of
charged and the defendant/s commission thereof must be
supported by non-hearsay allegations of such
information and/or any supporting depositions.

N.Y. C.P.L.

§§ 100.40/

100.15.

42

A review of these statutes reveals that the fac
suffic

ew conducted as part of the Citywide Summons

Operat

s a judicial determination of whether the

summons issued lacked probable cause.
C.P.L.

§

As noted above, N.Y.

100.40(1) (b) requires the reviewing court to determine

whether
summons.

e cause" existed for the issuance of the
The term "reasonable cause" is synonymous with

"probable cause."
Cir. 1985)

See Raysor v. Port Auth., 768 F.2d 34, 40 (2d

('" [R]

probable cause.")
(N.D.N.Y. 1993)

cause,'
i

[is] the equivalent of

Hahn v.

--------------~--------~~

, 820 F. Supp. 54, 58

("Reasonable cause is defined substantially the

same as probable cause under the Fourth Amendment.").

Although other reasons
sufficiency review stage are

dismissal at the facial
sible, it is unlikely that these

alternative rationales apply to
litigation.

summonses at issue in this

As noted above, N.Y. C.P.L.

dismissal of a summons that

§

100.15 requires

ils to state the court in which it

is filed, the title of the action, the name of
complainant, the offense charged or a suffi
factual statement, and

§

ently

100.40(1) (c) requires non

allegations to establish each element of the of
summons review process described above, the techni
43

subscribing
criptive
ay
Under the
errors

enumerated in N.Y. C.P.L. § 100.15 are addressed in the defect
review conducted prior to the judicial determination of facial
sufficiency.

With respect to N.Y. C.P.L. § 100.40(1) (c), the

offenses for which the summonses in this case are being issued
establi

lack

non-hearsay all

reason for dismissal.

ions to be an improbable

According to the OCA statistics, the

offenses for which the most summonses were issued include
consumption of alcohol on the street, disorderly conduct,
violations of motor vehicle safety rules, bicycle on the
sidewalk, trespass, offensive matter in the street/public
ilure to comply with s

ace,

/parking offenses, reckless driving,

littering, unlawfully being the park a

er hours, unlawful

possession of marijuana, unreasonable noise, unlicensed
operation of a vehicle, unlicensed vending and operation of a
motor vehic

with a suspended registration.

of these offenses, and

Given the nature

aintiffs' deposition testimony

describing how summonses were issued on the basis of NYPD
officers' personal observations, an overwhelming number of the
summonses found to be facially sufficient would not be dismissed
on hearsay grounds pursuant to N.Y. C.P.L.

§

100.40(1) (c).

Thus, the Citywide Summons Operation's two-step review process
and the nature of the offenses involved establish the vast
majority

those summonses

ling to survive judici
44

review

for

ial sufficiency to have been dismissed for want of

probable cause.

If, as Plaintiffs propose, the class were def
include

to

1 summonses that were dismissed, this class would

include those summonses dismissed at the de

ct review stage,

thereby including individuals who had their summonses dismissed
for reasons such as a missing signature or invalid return date.
It is not necessarily the case that these summonses that are
dismis

as defective were issued without probable cause.

common theory binding together the putat
is that the NYPD and other city off

The

plaintiffs' claims

ials have engaged in a

pattern and practice of issuing summonses to individuals without
probable cause in response to a requirement and constant
pressure to meet a summons quota.

Certifying a class that

includes individuals whose summonses were dismissed as
de

ive, without any judgment rendered as to whether those

individuals' summonses were issued without probable cause, fails
to capture the group of putat
by the wrong

aintiffs allege.

plaintiffs who

been harmed

Accordingly, Plaintiffs'

definition of the class is modified to capture only those
summonses dismissed for want of probable cause.

45

ass is not overly-

In order to ensure that

inclusive, the class certified will be defined to include
individuals who were issued summonses that were later dismissed
upon a judici

finding of fac

insufficiency and who were

ticketed without probable cause.

This judicial finding of

facial insufficiency is understood to occur at the Citywide
Summons Operation's second st
stage de

of review, a

review has been conducted.

ticket that was later dismi

the first

Merely being issued a

is not, by itself, considered

tantamount to having been ticketed without probable cause.
Individuals who were issued summonses that survived the defect
review process but were dismissed upon a judicial finding of
facial

ficiency are presumptive members of the class, but

Defendants can challenge any of these presumptive class members
on grounds that their summonses were dismi

for reasons

than a lack of probable cause. 6

6

Defendants, in their opposition br
,highlight various
aspects of Plaintiffs' deposition testimony suggesting that at
some of the summonses Plaintiffs received were issued with
probable cause and object to the Court "rubber-stamping a
proposed class to include anyone who has had a summons
di
ssed." For this reason, the boundaries of the class have
been narrowed to include only those putative plaintiffs whose
summonses were dismissed during the second-step, facial
ficiency review process, where the applicable statutes
suggest the reason
dismissal to
a lack of probable cause.
Additionally, af
Defendants the ability to challenge any
putative plaintiff's membership in
class will ensure that
the class is not
-inclusive.
46

Defendants contend that, without some evidence linking
the rates of dismissal with a judicial determination concerning
the probable cause for the underlying issuance of the summonses,
the Court would be required to engage in tens of thousands of
individualized inquiries on the merits of each putative
plaintiff's case in order to determine who is in the class.
However, an argument similar to that raised by Defendants in the
present action was addressed by the Second Circuit in Brown v.
Kelley, 609 F.3d 467 (2d Cir. 2010) and by this Court in Casale
v. Kelley, 257 F.R.D. 396 (S.D.N.Y. 2009).

Although both Brown

and Casale addressed the ascertainability of a class in the
context of a Rule 23(b) (3) inquiry, the legal conclusions in
these cases are equally applicable to class ascertainability in
a Rule 23(a) context.

See Brown, 609 F.3d at 483 n.17.

In Brown, an arrestee brought a putative class action
against various city defendants, including Police Commissioner
Kelly, alleging that these defendants engaged in the unlawful
enforcement of a statute, which had been declared
unconstitutional on First Amendment grounds, prohibiting
loitering with the purpose of begging.

After the district court

certified the class, the defendants appealed.
47

Although the

Circuit rejected the district court's decision to certi
statewide plaintiff

a

ass, the district court's decision to

certify a citywide plaintiff class was affirmed.

In reaching

its conclusion, the Second Circuit addressed the defendant's
argument that "certification is inappropriate because the claims
at issue in this case require individualized inquiries to
establish liability."

Brown, 609 F.3d at 483.

this argument, the Circuit held, first,

In rejecting

that several common

questions of law and fact were shared by the plaintiffs,
including whether New York City had a policy of enforcing the
loitering statute, whether

City

iled to train its officers

regarding the statute's unconstitutionality and whether
Commissioner Kelly had knowledge

the unlawful acts of his

subordinates, among other common issues.

See id. at 483-84.

Second, the Circuit noted that the claims of the plaintiffs in
the citywide class all arose from the same core allegation,
namely that the defendants had continued to enforce the
loitering statute notwithstanding the Second Circuit's ruling
that doing so violated the

rst Amendment.

See id. at 484.

though the Circuit recognized that some of the claims in the
complaint, particularly those for false arrest, may require
individualized factual inquiries into the issue of whether
probable cause existed, "the fact that some defendants may have
48

a probable cause defense in some cases does not render
certification inappropriate
issues in this action."

light of the common central

Brown, 609 F.3d at 484.

Similarly, in Casale, the district court addressed an
argument raised by the defendants that certifying a class would
require a ftparade of mini-trials."

The Court rejected this

contention, noting that "[t]he Second Circuit recently held in a
similar Fourth Amendment class action that,

'[i]n light of the

pervasive character of the common liability issues and the
admitted de minimis nature of individualized liability issues,'
a dist

ct court had abused its discretion by finding that

individual issues predominated.
mistake."
Strip

This Court will not repeat that

Casale, 257 F.R.D. at 414 (c

Search~Cases,

461 F.3d 219, 225

ing In re Nassau

(2d Cir. 2006)}.

The

district court in Casale also rejected another argument that
Defendants, citing

v. Alford, 543 U.S. 146, 125 S.Ct.

----~~--------------

588, 160 L.Ed.2d 537 (2004), raise, namely that mini-tri

s

would be required because probable cause may have existed for
another crime at the time the summons was issued.

See Casale,

257 F.R.D. at 411 ("[T]his does not demand the denial of class
certification.

It is implausible that in more than a de minimis

number of cases did police officers have probable cause to
49

arrest a plaintiff for another crime but chose solely to charge
of an unconstitutional provision.

Nor have

s presented evidence to that effect.") .

Defendants object to the applicability of Casale on
basis that membership in the class in that case was easily
ascertainable because the claim was limited solely to
teria of whether an individual was arrested or summonsed in
connection with the specific unconstitutional statutes at issue l
while in this case

l

membership in the c

is not so easily

determined as Plaintiffs do not claim

members of the

putative class were all summonsed for

a specific

unconstitutional statute nor that putat

pIa

issued summonses at a specific event.

Court/s modification

of the proposed class definition to

iffs were all

lude only those putative

plaintiffs who were issued summonses without probable cause
serves to address Defendantsl concerns.

As described above
a common theory of liabili
pattern and pract

I

I

aintiffs in this action present
namely that they were victims of a

set and enforced by city officials, the

NYPD and New York City

ice Officers to issue summonses to

individuals without probable cause in response to a requirement
50

and constant pressure to meet a summons quota.

Brown,

As

common questions are applicable to Plaintiffs' claims, and each
individual plaintiff's allegations are linked by a single
theory.

Accordingly, Defendants' contention that mini trials

are required to ascertain which individuals belong in the class
is insufficient to

feat class certification.

any individualized issues arise affecti

To the extent

the manageability of

class, it is within the Court's capability to address them.
See Brown, 609 F.3d at 486 ("The district court, of course,
possesses tools with which to manage the individualized
inquiries that

s action may require,

uding creat

subclasses, decertifying the class with respect to claims where
individualized inquiries become too burdensome, and holding
separate trials for plaintiffs subject to individual defenses
that remain after the common questions of law and fact are
resolved.

We leave the management of these issues to the sound

discretion of the court. H

)

•

The P1aintiffs Have Satisfied The Ru1e 23(b) Requirements For
C1ass Certification

In addition to meeting the

rements

a proposed class must also constitute one
classes enumerated in Rule 23(b).
51

Rule 23(a),

the types

aintiffs have moved for

class certification under both Rule 23(b) (2) and Rule 23(b) (3),
aintiffs have carried

and, for the reasons discussed below,

their burden of establishing by a preponderance of the evidence
that class certification is appropriate under each of these
Rules.

1. he Class Is Certified Pursuant To Rule 23(b) (2) For
T
Purposes Of Adjudicating Declaratory and Injunctive
Relief

To certify a class seeking prospective declaratory or
injunctive relief, Plaintiffs must show that Defendants "acted
or refused to act on grounds generally applicable to the class,
thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as a
whole."

Fed. R. Civ. P. 23 (b) (2).

"Rule 23 (b) (2)

is designed

to assist and is most commonly relied upon by litigants seeking
institutional reform in the form of injunctive relief,"
A. v. Giuliani, 929 F. Supp. 662, 692
126 F.3d 372

(2d Cir. 1997).

Marisol

(S.D.N.Y. 1996), aff'd,

Class certification under Rule

23(b) (2) is particularly appropriate in civil rights litigation.
See
(S.D.N.Y. 1991)

I

135 F.R.D. 81

1

83

{"Without class certification, their case - as

its requested relief with respect to all similarly situated
52

persons - could fail on technicality.

Indeed, it is in part for

concerns such as these that civil rights actions are
paradigmatic 23 (b) (2) class suits. 1/)

In this case, PI

seek declaratory and injunctive

J.n the form of a

declaration

Defendants' pol

violate the law and Constitution as
injunction

f

iffs

practices and customs
leged, a class wide

oining Defendants from enforcing a quota system

for the issuance of summonses, an order directing that immediate
remedial training on the proper legal grounds for
of summonses be provided all current members of

issuance
NYPD and an

order directing Defendants to put in place a system for
monitoring the summonses issued and the legal basis for their
issuance such that baseless summons can be dismissed.

ass certification under Rule 23(b) (2)

is appropriate

in this case, as the class includes those individuals who have
been issued summonses without probable cause pursuant to an
alleged unconstitutional

ice whereby NYPD officers are

instructed to issue summonses regardless of whether any
violation has occurred in order to meet a minimum quota
requirement.

The Amended Class Action Complaint includes

instances where Plaintiffs have been repeat

issued

summonses, suggesting declaratory and injunctive relief in the
53

form requested by Plaintiffs to be appropriate.
thus established that Defendants "acted .

Plaintiffs have

. on grounds

generally applicable to the class, thereby making appropriate
final injunctive relief or corresponding declaratory relief with
respect to the class as a whole."

Fed. R. Civ. P. 23(b) (2).

As was the case in evaluating the commonality
requirement under Rule 23(a), addressing whether this class can
be certified under Rule 23(b) (2) requires particular attention
to be paid to the Supreme Court's Dukes decision.
Supreme Court's second holding concerned the effect
for monetary relief on the dist

In Dukes, the
claims

ct court's decision to certify

an injunction class pursuant to Rule 23(b) (2).

In a unanimous

holding, the Supreme Court noted:

Rule 23(b) (2) allows class treatment when"
party
opposing the class has acted or refused to act on grounds
that apply generally to
class, so that final
unctive
ief or corresponding
aratory relief is appropriate
respecting the
ass as a whole." One possible reading of
this provision is that it applies only to requests for such
injunct
or declaratory relief and does not authorize the
ass certification of monetary claims at all. We need not
that broader question in this case, because we think
at a minimum, claims
individualized relief (like
the backpay at issue here) do not satisfy
Rule.
key to
(b) (2) c
is "the indivisible nature of the
injunctive or declaratory remedy warranted-the notion that
the conduct is such that it can be
oined or declared
unlawful only as to all of the class members or as to none
of them." (citation omitted).
In other words, Rule
I

54

23(b) (2) applies only when a single injunction or
declaratory judgment would provide relief to each member
class.
It does not authorize class certification when
individual class member would be entitled to a
injunction or declaratory judgment against
Similarly, it does not authorize class
certification when each class member would be entitled to
an individualized award of monetary damages.

Dukes, 131 S.Ct. at 2557.

The Supreme Court concluded that "the

combination of individualized and classwide relief in a
class" is inconsistent wi
rule, and claims

(b) (2)

the history and structure of the

monetary relief may not be certified under

Rule 23 (b) (2) where"

monetary relief is not incidental to

the injunctive or decl

relief."

Id. at 2557.

"[I]ncidental damage should not require additional hearings to
resolve the disparate

ts of each individual's case; it
antial legal or factual

should neither introduce new

issues, nor entail complex individualized determinations."

Id.

at 2560 (citing A_
_ I_I_i_s_o_n v_.____~~______________~~., 151 F.3d 402,
___
415

(5th Cir. 1998)).

In reaching

rejected precedent relied upon by

s holding, the Court
Court

Ninth Circuit that permitted combinat
as the individualized monetary reI
over injunctive relief.

Appeals for the

(b) (2) classes so long
not "predominate"

See id. at 2557; see

Mart Stores, Inc., 603 F.3d 571, 616 (9th

55

so Dukes v. Wal-

r. 2010).

Both

Second Circuit and this Court have followed

the "predominates" approach the Supreme Court rejected in Dukes.
Robinson, 267 F.3d at 164; MacNamara v. Ci
275 F.R.D. 125, 139 (S.D.N.Y. 2011).

of New York,

Plaintiffs, in seeking

certification pursuant to Rule 23 (b) (2), cite the Robinson
holding and the "predominates" approach as precedent supporting
their position.

Relying on such precedent in the

the Supreme Court's opinion would be inappropriate.

termath of
On its

face, the holding in Dukes would appear to defeat Plaintiffs
efforts to certify a class under Rule 23(b) (2), as declaratory
relief as well as money damages are both being

and injunct
sought.

However, it must be recognized that the

ass be

the Supreme Court in the Dukes case was certified only under
Rule 23(b) (2).

Recent precedent from this Court establishes

that when a di

ct court engages in

analysis required

under Rule 23(b) (2) and Rule 23(b) (3), a class can be certified
seeking both declaratory and injunctive relief as well as money
damages.

In

.

Stores

L.P., 276 F.R.D. 167

~= :.:~~~~~~~~,~~~~~~~~

(S.D.N.Y. 2011), the Honorable Colleen McMahon addressed
defendant Best Buy's motion for

ass decertification, which the

defendant filed following the Dukes decision.
56

The plaintiffs in

were New York customers of defendant Best Buy who were
refused a "price match" at the defendant's store.

Best Buy

advertised that it would meet any competitors price on products
it sells, subject to various conditions.

In a ruling prior to

the Dukes opinion, this Court certified as a class New York
customers

Best Buy who were denied valid price matches, under

both Rule 23(b) (2) and Rule 23(b) (3).

In certifying the class,

Judge McMahon identified as a common question whether, as
alleged by plaintiffs, Best Buy maintained and communicated to
local branches a corporate policy of denying valid price
matches.

If Best Buy did engage in this conduct, then Best

would be liable under New York's General Business Law
misleading consumers.

In addressing Best Buy's contention that the Dukes
decision mandated that the class be decertified, Judge McMahon
noted:

Dukes, like Robinson, was concerned with Rule 23(b) (2)
classes that sought both injunctive and monet
relief.
In this case, by contrast, I have certified a class both
under Rule 23(b) (2) and under Rule 23(b) (3), after finding
that the additional requirements
(b) (3)-"predominance"
of common questions over individualized questions and
"superiority" of class resolution-are satisfied here.
In
this case, unlike Dukes, a (b) (2) class is not seeking
monetary reI f, but
an injunction against further
statutory violations.
It is a separately certified (b) (3)
57

class that
money damages. Because violation of the
[New York General Business Law] entit
both classes to
relief, only one liability trial will need to be held to
determine the
stence vel non of
Anti Matching
Policy.

Jermyn, 276 F.R.D. at 173 74 (citations omitted).

Judge

McMahon's reasoning in Jermyn applies equally to the present
action.

Just as New York's General Bus

Jermyn plaintiffs both injunctive reI
too does 42 U.S.C.
seek relief

§

s Law afforded the
f and money damages, so

1983, the statute under which Plaintiffs

this action.

So long as the Court here engages

in the analysis necessary under
just as Judge McMahon did in

23 (b) (2) and Rule 23 (b) (3),

~~-=--

, the Dukes decision

s not

preclude certification of a class under Rule 23 (b) (2) for
purposes

injunctive relief and under Rule 23(b) (3)

for

purposes of money damages.

Defendants, in addition to opposing certif

ion

pursuant to Rule 23(b) (2) on the basis of Dukes, contend that
Rule 23(b) (2) certification should be denied because Plaintiffs'
individualized compensatory damages, rather than injunctive
reI

f,

is the predominant form of relief sought.

However,

Defendants' alleged unconstitutional practice of issuing
summonses without probable cause represents a threat to personal
58

liberty, and the Amended Class Action Complaint includes
allegations that some Plaintiffs have been subject to repeated
harassment.

Although the size of the class is large, the

Amended Class Action Complaint reveals Plaintiffs to have each
suffered a small amount of quantifiable damage, thereby
suggesting that receipt of monetary damages is not the
motivation behind this suit, but rather "incidental to requested
injunctive or declaratory relief."

Dukes, 131 S.Ct. at 2560;

see also Jermyn v. Best Buy Stores, L.P., 256 F.R.D. 418, 434
(S.D.N.Y. 2009)

("Such damages are insufficient to incent a

plaintiff to bring suit; they are exceeded by the filing fee.
However, a reasonable plaintiff aggrieved by Best Buy's policy
would want to prevent Best Buy from committing wrongful acts in
the future.

Accordingly, the class meets the requirements of

Rule 23(b) (2) .").

Although the class does seek money damages,

Defendants' contention that money damages are the predominant
form of relief sought is unsupported.

Defendants also attack Plaintiffs' standing to seek
injunctive relief.

"To qualify for standing, a claimant must

present an injury that is concrete, particularized, and actual
or imminent; fairly traceable to the defendant's challenged
behavior; and likely to be redressed by a favorable ruling."
59

Davis v. Fed.

tion Comm'n, 554 U.S. 724, 733, 128 S.Ct.

----~----~~~~--~~--~~~-

2759, 171 L.Ed.2d 737 (2008).

Moreover,

[p]laintiffs seeking
unctive relief must establish a
fourth element to
standing, namely a "real and
immediate threat of
injury" demonstrated by more
than "past exposure to ill
I conduct." City of Los
Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75
L.Ed.2d 675 (1983) (quot
O'Shea v. Littleton, 414 U.S.
488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)).
In
other words, plaintiffs assert
an injunction claim must
allege the probability of a
encounter with the
defendant which is likely to
to a similar violation of
some protected right. See - " ' - - - ­ , 461 U.S. at 105-06.

Roe v. City of New York, 151 F. Supp. 2d 495, 501-02 (S.D.N.Y.
2001).

In other words, it must be "Ii

ly, as opposed to merely

speculative, that the injury will be
decision."

sed by a favorable

Lujan v. Defenders of Wildli

,504 U.S. 555, 560,

112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)

(citations omitted).

support of their standing argument, De

In

s cite to this

Court's holding in MacNamara v. City of New York, in which
individuals arrested during the Republican National Convention
sought injunctive relief relating to alleged NYPD
protestors, but the Court held that
future harm, namely that they faced potent
class representatives "plan to at

ices of
aintiffs'
arrest
demonstrates

New York in the future," was "too speculative and conjectural
60

to supply a predicate
F.R.D. at 140 141.

prospective injunctive relief."

275

However, the fact that several Plaintiffs in

this case have received multiple summonses alleged to have been
issued without probable cause suggests the potential for future
harm to rise above the speculative level.

Finally, according to Defendants, certification
pursuant to Rule 23(b) (2)

is also inappropriate because

Plaintiffs have not established Defendants to have "acted
on grounds generally applicable to the class," as Plaintiffs'
allegation of a citywide practice of issuing summonses without
probable cause cannot be reasonably inferred from tape
recordings taken at two police precincts.

Defendants also

contend that Plaintiffs have failed to identi
policy or its equivalent.

an official

However, notwithstanding Defendants'

contentions, the OCA data reveals that a large number of
summonses are dismissed upon a judicial finding of facial
insufficiency and that these dismissals occur throughout the
ty of New York.

Because Plaintiffs have alleged the existence of a
citywide policy that poses a legitimate, non-speCUlative threat
to the putative plaintiffs' constitutionally protected
61

liberties r a

ass seeking declaratory and injunctive relief is

certified pursuant to Rule 23(b) (2).

2. The Class Is Certified Pursuant To Rule 23(b) (3) For
Purposes Of Adjudicating Claims For Money Damages

In addition to certifying a Rule 23(b) (2)

ass for

purposes of adjudicating declaratory and injunctive relief r
Plaintiffs have established the need to certify the class
pursuant to Rule 23(b) (3) for purposes of adjudicating claims
for money damages.

Rule 23(b) (3) provides that a class action

may be maintained if "the court finds that the questions of law
or fact common to class members predominate over any questions
affecting only individual members r and that a class action is
superior to other avail

e methods for fairly and eff

adjudicating the controversy."

i.

iently

Fed. R. Civ. P. 23(b) (3).

Predominance

"Class-wide issues predominate if resolution of some
of

legal or factual questions that qualify each class

memberrs case as a genuine controversy can be achieved through
generalized proof r and if these particular issues are more
substantial than the issues subject only to individualized
62

proof.

Moore v. PainWebber, Inc., 306 F.3d 1247, 1252 (2d Cir.

If

2002).

To determine whether

aintiffs have met this burden,

the Court turns to the elements of the underlying causes of
action.

Erica P. John Fund, Inc. v. Halliburton Co., 131 S.Ct.

2179! 2184-87, 180 L.Ed.2d 24
'questions
begins,
action.

(2011)

("Considering whether

law or fact common to class members predominate'
course, with the elements of the underlying cause of

lf

)

Although predominance is a more stringent inquiry,

"satisfaction of

typicality requirement of Rule 23(a)

goes a long way toward satisfying the Rule 23(b) (3) requirement
of commonality."

Rossini v. Ogilvy & Mather, Inc.! 798 F.2d

590, 598 (2d Cir. 1986).

In the present case, common questions of fact and law
apply to the claims of each potential plaintiff, including
whether Defendants engaged in a pattern and practice of issuing
summonses in the absence of probable cause, whether that
practice has been motivated by a quota, whether that practice
has been perpetuated by inadequate training and whether
potential plaintiffs' constitutional rights have been infringed
upon as a result

the NYPD's alleged summonsing practices.

See Brown, 609 F.3d at 483-84 (upholding certification of Rule
23(b) (3) citywide class because several common questions of law
63

iffs including whether City

and fact were shared by all pIa

had a policy of enforcing an unconstitutional statute, whether
the City

led to adequately train officers and whether

Commissioner

ly had knowledge of the unlawful acts of his

subordinates, among others) .

Defendants, in arguing that common issues of law and
fact do not predominate, attack Plaintiffs' interpretation of
OCA data and raise the possibility that individual minitrials will be required to ascerta

whether probable cause was

lacking in each instance a summons was issued.

However, as

described above in the discussion of ascertainability, these
contentions do not preclude certif

ion of the proposed class.

aintiffs in this action present a common theory of liability
involving an NYPD policy of issuing summonses to individuals
without probable cause in response to a quota requirement.
Because the potential plaintiffs' claims brought under this
theory involve sufficient common issues of law and fact subject
to generalized proof, the predominance requirement of Rule
23 (b) (3) is fulfilled.

ii.

Superiority

64

The second prong of Rule 23(b) (3) requires that
Plaintiffs demonstrate that a class action is "superior to other
lable methods
controversy."

fairly and efficiently adjudicating the

Fed. R. Civ. P. 23(b) (3).

Rule 23(b) (3) provides

a list of factors that courts should consider when analyzing
superiority.

These include:

(1)

"the class members

I

interests

in individually controlling the prosecution or defense of
separate actions;"
concerning
members;

II

(2)

"the extent and nature of any ligation

controversy already begun by or against
(3)

ass

"the desirability or undesirability of

concentrating the litigation of the claims in the particular
forum;1I and (4)
action.11

rd.

"the likely difficulties in managing a class
"Class actions are the superior method for

resolving controversies when the main objectives of Rule 23 are
served

l

namely the efficient resolution

the claims or

liabilities of many individuals in a single action, as well as
elimination of repetitious litigation and possibly
inconsistent adjudications. 1I

Rodolico v. Unisys Corp.

F.R.D. 468,479 (E.D.N.Y. 2001)

I

199

(citing Califano v. Yamasaki

I

442 U.S. 682, 700 01 1 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)).

Given the large number of potent

class members, a

class action represents a superior method for adjudicating this
65

dispute.

Consolidat

a class involving so many potential

plaintiffs would promote judicial economy, and individual
lawsuits could lead to inconsistent results.

Furthermore,

without class certification, it is likely that the
constitutional violations Plaintiffs allege would go
unadjudicated, as many of the potential class members do not
possess the knowledge or resources to prosecute a lawsuit, and
the relatively small amount of damages suffered by each
individual plaintiff decreases the possibility of individual
lawsuits being filed.
(S.D.N.Y. 1983)

See Rios v. Marshall, 100 F.R.D. 395, 409

("[T]he relative

small amount likely in any

individual recovery, the availability of treble damages
notwithstanding! renders certification of a plaintiff class in
this action particularly appropriate. H ) .

Plaintiffs' claims

allege a single unconstitutional practice! making class
certification especially appropriate.

See Brown! 609 F.3d at

484 ("[W]here plaintiffs were allegedly aggrieved by a single
policy

the defendants! and there is strong commonality of the

violation of the harm, this is precisely the type of situation
for which the class action device is suited.")
omitted).

(citations

As such, a class action represents a superior means

of adjudicating Plaintiffs' claims.

66

By establishing, by a preponderance of the evidence,
the predominance of common legal and factual issues as well as
the superiority of a class action approach, Plaintiffs have
demonstrated certification of a

ass under Rule 23(b) (3) to be

appropriate.

Conclusion

For

reasons set forth above, Plaintiffs' motion

for class certification is granted.

The

ass certified is

defined to include individuals who were issued summonses that
were later dismissed upon a judicial finding of facial
insufficiency and who were ticketed without probable cause.
Individuals who were issued summonses that survived the defect
review process but were dismissed upon a judicial finding of
facial insufficiency are presumptive members of the class, but
Defendants can challenge any presumptive class members on
grounds that the summons at issue was dismissed for reasons
other than a lack of probable cause.

The applicable class

period is May 25, 2007 to the present, pursuant to the three
year statute of limitations governing actions brought pursuant
to 42 U.S.C.

§

1983.

The class is certified under both Rules

23 (b) (2) and 2 3 (b) (3), wi

the Rule 23 (b) (2) class seeking
67

declaratory and injunctive relief and the Rule 23(b) (3) class
seeking money damages.

Plaintiffs Sharif Stinson, Ryburn

Walkes, Gary Shaw, Michael Bennett, Chanel Meausa l

David

Thompson, Julius Dixon, Jeremy Thames, Leander Griffin, Ricardo
Jones, Victor Breland and Lindsey Riddick will serve as class
representatives, and Jon Norinsbe

I

Esq. and Cohen & Fitch LLP

will serve as class counsel.

It is so ordered.

New York I NY
April ~3' 2012

U.S.D.J.

68