Brooklyn Center for Independence of the Disabled et al v. Bloomberg et al
Filing
66
OPINION AND ORDER re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Center for Independence of the Disabled, New York, Brooklyn Center for In dependence of the Disabled, Tania Morales, Gregory D. Bell. For the foregoing reasons, plaintiffs' motion for class certification is hereby GRANTED as modified and subject to comment from the parties. Absent objections, the Court will certify a plaintiff class consisting of the following: All people with disabilities, as defined by the Americans with Disabilities Act, who are within the City of New York and the jurisdiction served by the City of New York's emergency preparedness progra ms and services. The parties shall have until November 13, 2012, at 12:00 p.m., to submit letter objections, not to exceed three pages, regarding the Court's proposed class definition. It is further ORDERED that defendants have until November 19, 2012, to respond to plaintiffs' motion to seal, showing good cause why maintaining the relevant materials under seal is consistent with the presumption of access created by both the common law and the First Amendment. See, e.g., Lugosch v. P yramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006). In any such response, defendants shall also address whether there is a basis to maintain the unredacted version of this Opinion and Order under seal. Absent a response, the Court will publicly file the unredacted version of this Opinion and Order and deny plaintiffs' motion to seal without further notice to the parties. In the meantime, the Clerk of Court is directed to maintain the unredacted version of this Opinion and Order under seal. It is important to note that the fact that plaintiffs have carried their burden at this stage, and class certification is appropriate, is not to say that the plaintiff class is entitled to the relief it ultimately seeks. It may be, as defendant s vigorously assert, that the plaintiffs' claims are "patently false" and that the City has "carefully developed sophisticated operational and logistical plans and supporting resources that effectively serve the health and safety needs of all New Yorkers during emergencies, including those with disabilities." (Defs.' Opp'n Mem. at 1- 2). The fact that plaintiffs have carried their present burden is only to say that they have satisfied the requirements for proceeding by way of a class action. Whether they ultimately prevail will be determined at the trial scheduled to begin on December 10, 2012. (Signed by Judge Jesse M. Furman on 11/7/2012) (lmb)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------------)(
BROOKLYN CENTER FOR INDEPENDENCE OF
THE DISABLED, a nonprofit organization, CENTER
FOR INDEPENDENCE OF THE DISABLED, NEW
YORK, a nonprofit organization, GREGORY D. BELL,
and TANIA MORALES,
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11 Civ. 6690 (JMF)
OPINION AND ORDER
Plaintiffs,
-v-
MICHAEL R. BLOOMBERG, in his official capacity as
Mayor ofthe City ofNew York, and THE CITY OF
NEW YORK,
Defendants.
----------------------------------------------------------------------)(
JESSE M. FURMAN, United States District Judge:
This case- filed shortly after Hurricane Irene in 2011 -raises the question of whether
the City of New York's emergency preparedness plans adequately address the needs of people
with disabilities. Brooklyn Center for Independence of the Disabled ("BCID") and the Center
for the Independence of the Disabled, New York ("CIDNY"), two non-profit organizations,
along with Gregory D. Bell and Tania Morales, two individual plaintiffs, bring suit against the
City ofNew York (the "City") and Mayor Michael R. Bloomberg under Section 504 of the
Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 United States Code, Section 794, et seq.;
Title II of the Americans with Disabilities Act ("ADA"), 42 United States Code, Section 12131;
and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Administrative Code, Section
8-101, et. seq., alleging a systematic failure to address the needs of persons with disabilities in
the City's emergency and disaster planning. (Amended Compl.
~~
1, 14).
Trial in this matter is scheduled for December 10, 2012. The question now pending
before the Court is not whether the plaintiffs’ allegations have merit, but whether the case should
proceed as a class action. On August 31, 2012, the plaintiffs moved to certify the following class
under Federal Rules of Civil Procedure 23(a) and (b)(2): “all persons with disabilities in the City
of New York who have been and are being denied the benefits and advantages of New York
City’s emergency preparedness program because of Mayor Bloomberg and New York City’s
continuing failure to address the unique need of this population in the City’s emergency planning
and preparations.” (Mot. to Certify Class (Docket No. 35)). Defendants oppose the motion,
principally on the ground that plaintiffs lack standing to bring their claims because they have not
proved an “injury in fact.” (Defs.’ Mem. in Opp’n to Pls.’ Mot. to Certify Class (“Defs.’ Opp’n
Mem.”) at 2 (Docket No. 59)). The motion was fully submitted on September 24, 2012.
For the reasons discussed below, plaintiffs’ motion to certify the class is GRANTED as
modified and subject to comment from the parties. 1
BACKGROUND
The City’s Office of Emergency Management (“OEM”) is responsible for planning and
preparing for emergencies, educating the public about preparedness for emergencies,
coordinating emergency responses and recovery efforts, and collecting and disseminating
emergency information to the public. (Parks Decl. Ex. G at 1 (Docket No. 51)). Part of OEM’s
mandate is to develop written, city-wide plans to address emergencies that might befall the City.
On August 31, 2012, plaintiffs filed a motion to seal their unredacted memorandum of
points and authorities in support of their motion for class certification. (Docket No. 52). As a
basis for their motion, plaintiffs cite the fact that defendants designated a number of documents
discussed in the memorandum as confidential. Inexplicably, defendants did not respond to the
motion. Nevertheless, and although it is not clear to the Court why some of this material should
be kept confidential, this Opinion and Order has been redacted in keeping with plaintiffs’ motion
pending comment by the parties as discussed below.
1
2
(See id. Ex. H). These plans cover emergencies ranging from natural disasters (for example,
hurricanes, floods, and winter weather) to other miscellaneous hazards (for example, downed
trees, power interruptions, and oil spills). (Id.).
Plaintiffs in this action allege that the City’s emergency plans are either inadequate with
respect to the needs of people with disabilities or that they fail to provide for their needs entirely.
(See Mem. in Support of Mot. to Certify Class (“Pls.’ Mem.”) at 3). In particular, the plaintiffs
identify four alleged problems with the City’s emergency plans. Xxxxxxxxxxxxxxxxxx
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Plaintiffs seek a declaration from this Court that the above failures (and others) violate
the ADA, the Rehabilitation Act, and the NYCHRL. (Amended Compl. ¶ 155). In addition,
they seek an injunction requiring the City to develop and implement an emergency preparedness
program that addresses the unique needs of people with disabilities. (Id. ¶ 156). For the
moment, however, the sole issue before the Court is plaintiffs’ motion to certify a plaintiff class
of “all persons with disabilities in the City of New York who have been and are being denied the
benefits and advantages of New York City’s emergency preparedness program because of Mayor
Bloomberg and New York City’s continuing failure to address the unique need of this population
in the City’s emergency planning and preparations.” (Mot. to Certify Class).
DISCUSSION
A.
Standing
In opposing class certification, defendants argue principally that both the individual
plaintiffs and the organizational plaintiffs lack standing. Standing “is a threshold question —
antecedent to class certification — that requires plaintiffs to have been personally injured . . . .”
Pub. Emps. Ret. Sys. v. Merrill Lynch & Co., 714 F. Supp. 2d 475, 480-81 (S.D.N.Y. 2010).
More specifically, to have standing,
[1] the plaintiff[s] must have suffered an injury in fact that is both concrete and
particularized and actual or imminent, not conjectural or hypothetical; [2] there
must be a causal connection between the injury and the conduct complained of
4
such that the injury is fairly traceable to the challenged action of the defendant[s];
and [3] it must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.
Bryant v. N.Y. State Educ. Dep’t, 692 F.3d 202, 211 (2d Cir. 2012) (quoting Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks omitted)).
In the present case, defendants contend that the plaintiffs have not suffered an “injury in
fact” sufficient to confer standing. (See Defs.’ Opp’n Mem. at 2). Significantly, although it is
plaintiffs’ burden to establish such injury, see Roxbury Taxpayers Alliance v. Delaware Cnty.
Bd. of Supervisors, 80 F.3d 42, 47 (2d Cir. 1996), “plaintiffs are not required to prove injury-infact at the class certification stage,” In re Amaranth Natural Gas Commodities Litig., 269 F.R.D.
366, 379 (S.D.N.Y. 2010). Instead, at this stage in the litigation, plaintiffs need only properly
allege such an injury. See, e.g., Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006)
(explaining that, for purposes of determining standing, the court “‘must accept as true all
material allegations of the complaint, and must construe the complaint in favor of the
complaining party’ (i.e., the class members)” (quoting Warth v. Seldin, 422 U.S. 490, 501
(1975))).
1.
The Individual Plaintiffs Have Standing
Applying these standards here, Bell and Morales — the individual plaintiffs — have
standing to pursue claims against the defendants, at least to the extent those claims relate to their
individual disabilities. It may be true, as defendants contend, that neither plaintiff suffered a
concrete injury during Hurricane Irene that could be fairly traced to the City’s emergency
planning or procedures. (See Defs.’ Opp’n Mem. at 10-12). But that contention misses the point
of plaintiffs’ claims. The gravamen of plaintiffs’ claims is, first and foremost, that they have
been, and continue to be, deprived of benefits afforded to other citizens — namely, the benefits
5
of an adequate emergency preparedness program. (See Pls.’ Reply Mem. at 2; Amended Compl.
¶¶ 1-13). Plaintiffs’ allegations may or may not be true — that will be determined at trial — but
they are sufficient at this stage to establish plaintiffs’ standing. Cf. Henrietta D. v. Bloomberg,
331 F.3d 261, 274 (2d Cir. 2003) (stating that, under the ADA, public entities are “prohibited
from affording to persons with disabilities services that are ‘not equal to that afforded others,’ or
‘not as effective in affording equal opportunity’” and that, under the Rehabilitation Act,
reasonable accommodation must be made “to the known physical or mental limitations of an
otherwise qualified handicapped applicant or employee” (quoting 28 C.F.R. §§ 35.130(b)(1),
41.53 (2002))).
In addition, Bell and Morales have standing based on the threat of future harm and the
fear and apprehension caused by it. (See Amended Compl. ¶¶ 55, 58; see also Pls.’ Reply Mem.
at 3). To be sure, the threat of future harm gives rise to standing only where the likelihood of
such harm is “sufficiently real and immediate to show an existing controversy.” City of Los
Angeles v. Lyons, 461 U.S. 95, 103 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 496
(1974)); see also, e.g., Baur v. Veneman, 352 F.3d 625, 636 (2d Cir. 2003) (holding that fear or
anxiety must be based on more than “mere conjecture” to confer standing). But “one does not
have to await the consummation of threatened injury to obtain preventive relief. If the injury is
certainly impending, that is enough.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S.
289, 298 (1979) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923)). Moreover,
“[t]he difference between a threatened injury and a conjectural one is a matter of degree, and
since no precise test exists, each case must be considered on an individual basis.” Alliance of
Am. Insurers v. Cuomo, 854 F.2d 591, 596 (2d Cir. 1988). Notably, where the threatened injury
is particularly severe, courts are more likely to find standing. See, e.g., Baur v. Veneman, 352
6
F.3d 625, 637 (2d Cir. 2003) (“Because the evaluation of risk is qualitative, the probability of
harm which a plaintiff must demonstrate in order to allege a cognizable injury-in-fact logically
varies with the severity of the probable harm.”). Similarly, courts are more inclined to find
standing if “there is no better time” to resolve the issues raised by the parties — that is, when
they “will be in no better position later than . . . now.” Alliance of Am. Insurers, 854 F.2d at 599
(quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 145 (1974)).
Weighing these considerations here, the alleged injuries in this case are more substantial
than in many cases where plaintiffs have been found to have standing. See, e.g., Denney, 443
F.3d at 264-65 (holding that class members who had conducted transactions based upon
allegedly improper and fraudulent tax counseling had standing even though many were likely
“insulated from exposure” to penalties by the statute of limitations); Baur, 352 F.3d at 628
(holding that “exposure to an enhanced risk of disease transmission may qualify as injury-infact”); Caudle v. Towers, Perrin, Forster & Crosby, 580 F. Supp. 2d 273, 279-80 (S.D.N.Y.
2008) (holding that the risk of future identity theft and fraud arising from the theft of a laptop
containing personal information was sufficient to confer standing). It is, of course, not possible
to know with certainty if or when disaster will strike the City, but — as the tragic events of the
past few weeks make abundantly clear — it is beyond “mere conjecture” that another disaster,
whether natural or manmade, will occur and that it will seriously affect members of the proposed
class. Baur, 352 F.3d at 636; cf. Hargrave v. Vermont, 340 F.3d 27, 34 (2d Cir. 2003) (finding
that the threat of a statute’s enforcement was sufficient to confer standing). Additionally, at the
extreme, plaintiffs are threatened with an increased risk of death or serious injury. Finally, a
court would be in no better position later than now to resolve the claims presented. Indeed, to
conclude otherwise would be perverse, as it would mean that plaintiffs could bring their claims
7
only after their worst fears had been realized. See, e.g., Chang v. United States, 327 F.3d 911,
921 (9th Cir. 2003) (noting that the “court does not require Damocles’s sword to fall before . . .
recogniz[ing] the realistic danger of sustaining a direct injury” (internal quotation marks
omitted)). Accordingly, the individual plaintiffs have standing in the instant action.
2.
The Organizational Plaintiffs Also Have Standing
In any event, BCID and CIDNY also have standing to pursue the claims in this case.
There are two ways for an organization to establish standing. First, an organization may have
standing solely as a representative of its members. See, e.g., Disability Advocates, Inc. v. N.Y.
Coal. for Quality Assisted Living, Inc., 675 F.3d 149, 156-57 (2d Cir. 2012) (“DIA”); Bano v.
Union Carbide Corp., 361 F.3d 696, 713 (2d Cir. 2004). An association has standing to bring
suit on behalf of its members when “(a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.” DIA, 675 F.3d at 157 (quoting Hunt v. Washington State Apple Adver.
Comm’n, 432 U.S. 333, 343 (1977)). The first two of these requirements are constitutional in
nature; the third is “prudential” and “best seen as focusing on . . . matters of administrative
convenience and efficiency.” Alliance for Open Soc’y Int’l, Inc. v. USAID, 651 F.3d 218, 229
(2d Cir. 2011) (quoting United Food & Commercial Workers Union Local 751 v. Brown Grp.,
517 U.S. 544, 555-56 (1996)).
Alternatively, an organization may establish standing to sue on its own behalf so long as
it can independently satisfy the requirements of Article III standing — namely, injury-in-fact, a
causal connection, and redressability. See, e.g., Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir.
2011). Significantly, in Nnebe, the Second Circuit made clear that “scant” evidence of “only a
8
perceptible impairment of an organization’s activities is necessary for there to be an injury in
fact.” Id. at 157 (internal quotation marks omitted). In that case, the court held that the New
York Taxi Workers Alliance (“NYTWA”) had standing to challenge the City’s policy of
automatically suspending the licenses of taxi drivers who were arrested on criminal charges
given evidence that the organization “expended resources to assist its members who face
summary suspension by providing initial counseling, explaining the suspension rules to drivers,
and assisting the drivers in obtaining attorneys.” Id. at 157. “Even if only a few suspended
drivers are counseled by NYTWA in a year,” the court reasoned, “there is some perceptible
opportunity cost expended by the [NYTWA], because the expenditure of resources that could be
spent on other activities ‘constitutes far more than simply a setback to [NYTWA’s] abstract
social interests.’” Id. (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)).
The organizational plaintiffs in this case have both associational and direct standing.
First, BCID plainly satisfies the test for associational standing. As alleged in the complaint, it is
a membership organization; its members include people with disabilities, who have standing in
their own right for the reasons explained above; the interests it seeks to protect are germane to its
purpose, which is to “provid[e] services and advocacy toward independent living for individuals
with disabilities”; and neither the claims asserted nor the relief requested require the participation
of individual members, as the complaint seeks city-wide injunctive relief rather than damages.
(Amended Compl. ¶¶ 17-34). Aside from disputing that BCID’s members have standing to sue
in their own right, defendants’ sole argument in the face of these allegations is that BCID has
“refuse[d]” to identify any of its members by name. (Defs.’ Opp’n Mem. at 16). Defendants
have pointed to no cases suggesting that there is such a requirement for purposes of establishing
standing, however. At this stage, it is enough that BCID alleges that it is a membership
9
organization and that its members include people with disabilities. See In re Amaranth Natural
Gas Commodities Litig., 269 F.R.D. at 379.
CIDNY’s case for associational standing is weaker only because it is apparently not a
membership organization. Nevertheless, it is well established “that — assuming the other
criteria for associational standing are met — non-membership organizations may sue in a
representative capacity when they function effectively as a membership organization.” DIA, 675
F.3d at 157 (quoting In re Holocaust Victim Assets Litig., 225 F.3d 191, 196 (2d Cir. 2000)
(internal quotation marks and brackets omitted). That is the case here, as CIDNY’s purpose “is
to respond to . . . requests [from people with disabilities] and serve th[e] community of New
Yorkers with disabilities.” (Dooha Decl. ¶ 8). Moreover, among other things, over half of
CIDNY’s board members and over seventy percent of CIDNY’s staff are allegedly persons with
disabilities. (Amended Compl. ¶ 35). In short, CIDNY is a “service provider[] managed and
directed by persons with disabilities for the purpose of serving persons with disabilities.” (Pls.’
Reply Mem. at 8). As such, it has sufficient “indicia of membership” to “function effectively as
a membership organization” for the purposes of associational standing. DIA, 675 F.3d at 157
(quoting In re Holocaust Victim Assets Litig., 225 F.3d 191, 196 (2d Cir. 2000)); see also id. at
158-59 (looking for the “indicia of membership,” such as whether the people purportedly
represented by the relevant organization “have the power to elect its directors, make budget
decisions, or influence [its] activities or litigation strategies”).
In any event, even if BCID and CIDNY did not have standing to bring this suit on behalf
of their (real or functional) members, they have standing to sue on their own behalf. As alleged
in both the amended complaint and documents submitted in support of the present motion, both
organizations have expended considerable resources counseling constituents, gathering and
10
coordinating information, and documenting problems with the City’s plans. (See Pls.’ Mem. at
6). For example, before Hurricane Irene, BCID issued a press release and attempted to call its
1,400 members and constituents in evacuation zones to advise them of proper evacuation
procedures. (See Wasserman Decl. ¶¶ 7-8). CIDNY representatives visited shelters during
Hurricane Irene to assess accessibility and interviewed volunteers to determine their level of
knowledge about issues related to people with disabilities. (See Dooha Decl. ¶¶ 27-30).
Weighed against the “scant” evidence found sufficient to confer standing in Nnebe, this evidence
is plainly enough for BCID and CIDNY to sue on their own behalf. 644 F.3d at 157 (internal
quotation marks omitted). Notably, in arguing otherwise, defendants not only ignore the Second
Circuit’s decision in Nnebe, but they rely on out-of-circuit precedent expressly rejected in Nnebe.
(Defs.’ Opp’n Mem. at 17 (citing Fair Hous. Council v. Montgomery Newspapers, 141 F.3d 71,
78 (3d Cir. 1998), cited in Nnebe, 644 F.3d at 157)).
Defendants also maintain that the organizational plaintiffs lack standing because the
outreach and services they provide are “precisely the type of services that they routinely provide
as part of their respective organizational missions.” (Defs.’ Opp’n Mem. at 17-18). But as the
Nnebe court made clear, “so long as the economic effect on an organization is real, the
organization does not lose standing simply because the proximate cause of that economic injury
is ‘the organization’s noneconomic interest in encouraging [a particular policy preference].’”
644 F.3d at 157 (quoting Havens Realty Corp., 455 U.S. at 379 n.20).
B.
Class Certification
Having found that plaintiffs have standing to pursue their claims, the Court turns to
whether the proposed class should be certified. Plaintiffs seeking class certification must first
meet the requirements of Rule 23(a) of the Federal Rules of Civil Procedure — namely:
11
numerosity, commonality, typicality, and adequacy of representation. See FED. R. CIV. P. 23(a).
If those threshold requirements are met, the proposed class must also fit within one of the
subdivisions of Rule 23(b). See FED. R. CIV. P. 23(b); see also, e.g., Brown v. Kelly, 609 F.3d
467, 475-76 (2d Cir. 2010). In determining whether to certify a class, a district court is required
to consider only the allegations set forth in the complaint and to take all of plaintiffs’ allegations
as true. See, e.g., Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656, 661 n.15 (2d Cir.
1978). Plaintiffs bear the burden of showing, by a preponderance of the evidence, that the
requirements of Rule 23 are met. See Teamsters Local 445 Freight Div. Pension Fund v.
Bombardier, Inc., 546 F.3d 196, 201-04 (2d Cir. 2008).
The Court will address each of the Rule 23 requirements in turn.
1.
Numerosity
The first requirement for class certification — the only requirement defendants really
contest (see Defs.’ Opp’n Mem. at 24-25) — is that “the class is so numerous that joinder of all
members is impracticable.” FED. R. CIV. P. 23(a)(1). The Second Circuit has held that
“numerosity is presumed at a level of 40 members.” Consolidated Rail Corp. v. Town of Hyde
Park, 47 F.3d 473, 483 (2d Cir. 1995). At the same time, “[c]ourts have not required evidence of
exact class size or identity of class members in order to satisfy the numerosity requirement.”
Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). Moreover, insofar as practicability is the
ultimate touchstone of the analysis, courts are instructed to consider all the circumstances
surrounding the case, not merely the number of potential class members. See id. at 936.
“Relevant considerations include judicial economy arising from the avoidance of a multiplicity
of actions, geographic dispersion of class members, financial resources of class members, the
ability of claimants to institute individual suits, and requests for prospective injunctive relief
12
which would involve future class members.” Id.
Here, the proposed class easily satisfies the numerosity requirement. Relying on the
2008 American Community Survey from the United States Census Bureau — “a recognized data
set to determine the population of people with disabilities” (Blanck Decl. ¶ 15 & Ex. B at 5) —
plaintiffs estimate that there are roughly 900,000 people with disabilities in New York City (Pls.’
Mem. at 13), a number clearly rendering joinder impracticable. Moreover, given the injunctive
nature of the relief requested, the diverse financial resources of the class members, and the
burden on the court system of multiple, individual requests for injunctive relief, certification is
plainly appropriate under Rule 23(a)(1). In contending otherwise, defendants largely rehash their
arguments about standing (Defs.’ Opp’n Mem. at 22-24), rejected above. In addition, defendants
assert that plaintiffs have come forward with no more than “pure speculation” about the size of
the proposed class. (Defs.’ Opp’n Mem. at 24). But that assertion is based on the same
fundamental misunderstanding of plaintiffs’ claims that drove defendants’ arguments about
standing. As discussed above, the gravamen of plaintiffs’ claims is not that they or other class
members were injured during Hurricane Irene or some other disaster, but that they have been
deprived of a benefit — namely, appropriate emergency preparedness planning — that the rest of
the population has been given. Put simply, the relevant class of people is therefore all people
with disabilities in the City. Accordingly, the numerosity requirement is plainly satisfied.
2.
Commonality
The second requirement for class certification is that “there are questions of law or fact
common to the class.” FED. R. CIV. P. 23(a)(2). Members of the class must have claims that
“depend upon a common contention,” that is “capable of classwide resolution — which means
that determination of its truth or falsity will resolve an issue that is central to the validity of each
13
one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).
The test for commonality, however, “‘is not demanding’ and is met so long as there is at least
one issue common to the class.” Raymond v. Rowland, 220 F.R.D. 173, 179 (2004) (Kravitz, J.)
(quoting Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir. 1999)).
Plaintiffs have met this burden. To be sure, the class members have diverse disabilities
and will not all be affected by the alleged omissions in the City’s plan the same way. 2 But
“[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.” Stinson v. City of N.Y., 282
F.R.D. 360, 369 (S.D.N.Y. 2012) (quoting Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 198
(S.D.N.Y. 1992)); see also Port Auth. Police Benevolent Ass’n v. Port Auth., 698 F.2d 150, 15354 (2d Cir. 1983)). In other words, “[a] court may find a common issue of law even though there
exists some factual variation among class members’ specific grievances.” Stinson, 282 F.R.D. at
369 (quoting Dupler v. Costco Wholesale Corp., 249 F.R.D. 29, 37 (E.D.N.Y. 2008)). Here, at
issue is a City-wide policy and its alleged failure to take into account the needs of disabled
citizens. This issue is common to the proposed class because it challenges “acts and omission of
the [City] that are not specific to any particular Plaintiff.” Raymond, 220 F.R.D. at 180; see also
Henrietta D. v. Giuliani, No. 95 Civ. 0641 (SJ), 1996 WL 633382, at *14 (E.D.N.Y. Oct. 25,
1996)). Accordingly, the commonality requirement has been met.
2
According to the Amended Complaint, approximately 180,000 non-institutionalized New
York City residents have a hearing disability, approximately 210,000 non-institutionalized New
York City residents have a vision disability, and approximately 535,000 non-institutionalized
New York City residents have a mobility disability. (Amended Compl. ¶ 110).
14
3.
Typicality
The third Rule 23(a) requirement is that “the claims or defenses of the representative
parties are typical of [those] of the class.” FED. R. CIV. P. 23(a)(3). The Supreme Court has
observed that “the commonality and typicality requirements of Rule 23(a) tend to merge.” Gen.
Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982). More specifically, typicality
“is satisfied when 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.” Sykes v. Mel
Harris & Assocs. LLC, 09 Civ. 8486 (DC), 2012 U.S. Dist. LEXIS 125336, 17-18 (S.D.N.Y.
Sept. 4, 2012) (quoting Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir.
2001)). Where, as here, the alleged “injuries derive from a unitary course of conduct by a single
system,” typicality is generally found. Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997).
Based on the above discussion of commonality, and the fact that, together, the named plaintiffs
have “mobility, speech, hearing, vision, and mental health disabilities, as well as chronic
illnesses” (Pls.’ Reply Mem. at 9-10), the representatives satisfy the typicality requirement.
4.
Adequacy of Representation
Finally, Rule 23(a)(4) requires that the class representatives will “fairly and adequately
protect the interests of the class.” FED. R. CIV. P. 23(a)(4). In particular, the Court must inquire
as to whether “1) plaintiff’s interests are antagonistic to the interest of other members of the class
and 2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.” Baffa v.
Donaldson, Lufkin & Jenrette Secs. Corp., 222 F.3d 52, 60 (2d Cir. 2000). Here, there is no
dispute that these conditions are met. The plaintiffs, both individual and organizational, are
advocating for equal treatment for all people with disabilities under the City’s emergency plan,
and there is no indication of any conflict between them and the members of the class.
15
Additionally, plaintiffs’ counsel are experienced litigators. Indeed, Disability Rights Advocates
has successfully litigated a similar case regarding emergency preparedness in California. (See
Parks Decl. ¶ 8). Accordingly, the adequacy of representation requirement is satisfied. 3
5.
Rule 23(b)
The Rule 23(a) requirements having been met, the only remaining question is whether the
proposed class falls within one of the categories set forth in Rule 23(b). That question is easily
resolved, as the proposed class plainly satisfies Rule 23(b)(2), which applies when “the party
opposing the class has acted or refused to act on grounds that apply generally to the class, so that
the final injunctive relief or corresponding declaratory relief is appropriate respecting the class as
a whole.” FED. R. CIV. P. 23(b)(2). Plaintiffs allege that defendants have failed to act to protect
the interests of the class as a whole by ignoring the unique problems faced by people with
disabilities in times of emergency. Instead of seeking damages, they seek only injunctive relief,
which would require the City to address the alleged deficiencies and plainly benefit the proposed
class as a whole. Notably, cases like this one, “alleging systemic failure of governmental bodies
to properly fulfill statutory requirements, have been held to be appropriate for class certification
under Rule 23(b)(2).” Raymond, 220 F.R.D. at 181 (citing Brown v. Giuliani, 158 F.R.D. 251,
3
In addition to the requirements set forth in Rule 23(a), the Second Circuit recognizes an
implied requirement of “ascertainability.” In re Initial Pub. Offering (“IPO”) Sec. Litig., 471
F.3d 24, 45 (2d Cir. 2006). It is not clear that the ascertainability requirement applies to Rule
23(b)(2) class actions, however, as notice is not obligatory and the relief sought is injunctive
rather than compensatory. See, e.g., Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. (In
re Vitamin C Antitrust Litig.), 279 F.R.D. 90, 116 (E.D.N.Y. 2012) (explaining that “the
ascertainability requirement is less important in a Rule 23(b)(2) class, since a chief objective of
this rule is to provide broad injunctive relief to ‘large and amorphous’ classes not capable of
certification under Rule 23(b)(3)” (quoting Marisol A., 126 F.3d at 378)). In any event, if the
requirement does apply, class members need not be ascertainable prior to class certification; they
need only be ascertainable at some point in the case. See In re IPO Sec. Litig., 471 F.3d at 45.
Here, there is a clear enough delineation of the class for the Court to determine whether a
particular individual is a member in this case.
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269 (E.D.N.Y. 1994)). Indeed, courts have held that “[c]lass certification under Rule 23(b)(2) is
particularly appropriate in civil rights litigation.” Stinson, 282 F.R.D. at 379 (citing Loper v.
N.Y.C. Police Dep’t, 135 F.R.D. 81, 83 (S.D.N.Y. 1991)). Accordingly, the Court holds that
class certification under Rule 23(b)(2) is appropriate in this case.
C.
The Proposed Class Definition
For the foregoing reasons, certification of a plaintiff class is appropriate in this case. The
next question is whether the definition of the class proposed by plaintiffs — namely, “all persons
with disabilities in the City of New York who have been and are being denied the benefits and
advantages of New York City’s emergency preparedness program because of Mayor Bloomberg
and New York City’s continuing failure to address the unique need of this population in the
City’s emergency planning and preparations” (Mot. to Certify Class) — is an appropriate one.
Under Rule 23, district courts have the power to amend class definitions or decertify classes as
necessary. See, e.g., Morangelli v. Chemed Corp., 275 F.R.D. 99, 114 (E.D.N.Y. 2011)
(explaining that “[t]he court may, in its discretion . . . modify the definition of the proposed class
to provide the necessary precision or to correct other deficiencies”) (quoting 5 James Wm.
Moore et al., Moore’s Federal Practice § 23.21[6]). “In fact, the court has a duty to ensure that
the class is properly constituted and has broad discretion to modify the class definition as
appropriate to provide the necessary precision.” Id.
In the Court’s view, the plaintiffs’ proposed class definition here is potentially
problematic insofar as it appears to presume a finding in plaintiffs’ favor on the merits. For
example, if it turns out that defendants did not “fail[] to address the unique need” of the disabled
population, an argument could be made — after the fact — that the plaintiff class lacked any
members. That, in turn, could effectively undermine the value of defendants’ victory. As the
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Seventh Circuit explained in rejecting a similarly conclusory class definition:
Using a future decision on the merits to specify the scope of the class makes it
impossible to determine who is in the class until the case ends, and it creates the
prospect that, if the employer should prevail on the merits, this would deprive the
judgment of preclusive effect: any other former worker could file a new suit,
given that the losing ‘class’ lacked any members.
Bolden v. Walsh Constr. Co., 688 F.3d 893, 895 (7th Cir. 2012).
Accordingly, using as a model the class certified in the similar challenge to the
emergency preparedness plans of the City of Los Angeles, see Communities Actively Living
Indep. & Free v. City of Los Angeles, CV 09-0287 (CBM) (RZX), 2011 WL 4595993, at *12
(C.D. Cal. Feb. 10, 2011), the Court intends to certify the following class: “All people with
disabilities, as defined by the Americans with Disabilities Act, who are within the City of New
York and the jurisdiction served by the City of New York’s emergency preparedness programs
and services.” Before doing so, however, the Court will allow each party an opportunity to
comment on the proposed class definition as modified. If no objections are raised, the Court will
certify the class as proposed without further notice.
CONCLUSION
For the foregoing reasons, plaintiffs’ motion for class certification is hereby GRANTED
as modified and subject to comment from the parties. Absent objections, the Court will certify a
plaintiff class consisting of the following: “All people with disabilities, as defined by the
Americans with Disabilities Act, who are within the City of New York and the jurisdiction
served by the City of New York’s emergency preparedness programs and services.” The parties
shall have until November 13, 2012, at 12:00 p.m., to submit letter objections, not to exceed
three pages, regarding the Court’s proposed class definition.
It is further ORDERED that defendants have until November 19, 2012, to respond to
18
plaintiffs' motion to seal, showing good cause why maintaining the relevant materials under seal
is consistent with the presumption of access created by both the common law and the First
Amendment. See, e.g., Lugosch v. Pyramid Co. a,[ Onondaga, 435 F.3d 110, 126 (2d Cir. 2006).
In any such response, defendants shall also address whether there is a basis to maintain the
unredacted version of this Opinion and Order under seal. Absent a response, the Court will
publicly file the unredacted version of this Opinion and Order and deny plaintiffs' motion to seal
without further notice to the parties. In the meantime, the Clerk of Court is directed to maintain
the unredacted version of this Opinion and Order under seal.
It is important to note that the fact that plaintiffs have carried their burden at this stage,
and class certification is appropriate, is not to say that the plaintiff class is entitled to the relief it
ultimately seeks. It may be, as defendants vigorously assert, that the plaintiffs' claims are
"patently false" and that the City has "carefully developed sophisticated operational and
logistical plans and supporting resources that effectively serve the health and safety needs of all
New Yorkers during emergencies, including those with disabilities." (Defs.' Opp'n Mem. at 12). The fact that plaintiffs have carried their present burden is only to say that they have satisfied
the requirements for proceeding by way of a class action. Whether they ultimately prevail will
be determined at the trial scheduled to begin on December 10,2012.
SO ORDERED.
Dated: November 7, 2012
New York, New York
United States District Judge
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