SOUROVELIS et al v. CITY OF PHILADELPHIA et al

Filing 187

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 02/23/2017. 02/23/2017 ENTERED AND COPIES E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHRISTOS SOUROVELIS, et al.,
Plaintiffs,
v.
CITY OF PHILADELPHIA, et al.,
Defendants.

:
:
:
:
:
:
:
:
:

CIVIL ACTION
NO. 14-4687

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

February 23, 2017

Table of Contents
I.

INTRODUCTION............................................ 2

II.

BACKGROUND.............................................. 4

III. PROCEDURAL HISTORY...................................... 7
IV.

PROPOSED CLASS......................................... 11

V.

LEGAL STANDARD......................................... 11

VI.

DISCUSSION ............................................ 13
A.

Rule 23(a)........................................ 13
1.
2.

Commonality.................................. 15

3.

Typicality................................... 18

4.
B.

Numerosity................................... 14

Adequacy of Representation................... 21

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

1.

Requests for Declaratory Relief and an
Injunction Enjoining the Allegedly
Unconstitutional Policy and Practice......... 26

2.

Request for an Entry of Judgment Requiring
the Return of Property....................... 28
a.

Restitution Claims Under Rule 23(b)(2).. 30

b.

Individualized Monetary Damages......... 36

VII. CONCLUSION............................................. 47
I.

INTRODUCTION
Named Plaintiffs Christos Sourovelis, Doila Welch,

Norys Hernandez, and Nassir Geiger (“Plaintiffs”), on behalf of
themselves and all others similarly situated under Federal Rule
of Civil Procedure 23(b)(2), bring this putative class action
pursuant to 42 U.S.C. § 1983 against the City of Philadelphia,
Mayor James F. Kenney, and Police Commissioner Richard Ross, Jr.
(collectively, the “City Defendants”); the Philadelphia District
Attorney’s Office (the “D.A.’s Office”) and District Attorney
Seth R. Williams (together, the “D.A. Defendants”); and Sheila
A. Woods-Skipper, Jacqueline F. Allen, Joseph H. Evers, and
Charles A. Mapp (the “First Judicial District Defendants”) (all
together, “Defendants”) to enjoin and declare unconstitutional
the City of Philadelphia’s civil forfeiture policies and
practices.

Plaintiffs’ Second Amended Complaint asserts seven

claims, all of which allege that Defendants’ policies and
practices violate the Due Process Clause of the Fourteenth
2

Amendment.

The parties have settled two of Plaintiffs’ seven

claims.
In the instant motion, Plaintiffs seek to certify a
Rule 23(b)(2) class on their fifth claim for relief (“Count
Five”).

In Count Five, Plaintiffs claim that the City and D.A.

Defendants1 have a policy and practice of retaining forfeited
property and its proceeds for use in funding the D.A.’s Office
and the Philadelphia Police Department, including paying the
salaries of the prosecutors who manage the civil forfeiture
program, thereby providing the D.A.’s Office and the
Philadelphia Police Department with a direct financial stake in
the outcome of civil forfeiture proceedings.

Plaintiffs allege

that this arrangement creates a conflict of interest, injects
impermissible bias into the civil forfeiture process, and
violates Plaintiffs’ rights to the fair and impartial
administration of justice under the Due Process Clause of the
Fourteenth Amendment.
For the reasons that follow, the Court will grant in
part and deny in part Plaintiffs’ motion to certify a Rule
23(b)(2) class with respect to Count Five.

The Court will

certify a Rule 23(b)(2) class with respect to Plaintiffs’
requests for (1) a declaratory judgment declaring
1

Throughout this memorandum, “the City and D.A.
Defendants” shall include all of the City Defendants and both of
the D.A. Defendants.
3

unconstitutional the City and D. A. Defendants’ policy and
practice of retaining forfeited property and its proceeds for
use by the D.A.’s Office and the Police Department; and (2) an
injunction enjoining that policy and practice.

However, the

Court will decline to certify a Rule 23(b)(2) class with respect
to Plaintiffs’ request for an injunction ordering the return of
forfeited property on the basis of the alleged constitutional
violations.
II.

BACKGROUND
Civil forfeiture statutes permit states and the

federal government to file actions, under certain circumstances,
to obtain ownership of private real and personal property that
is related to certain categories of criminal activity.

In

Pennsylvania, the Controlled Substances Forfeiture Act, 42 Pa.
Cons. Stat. Ann. §§ 6801 and 6802 (the “CSFA”), provides that
certain real and personal property that is connected to a
violation of Pennsylvania’s Controlled Substance, Drug, Device
and Cosmetic Act, 35 Pa. Cons. Stat. Ann. §§ 780-101 to 780-144,
is subject to forfeiture by the Commonwealth of Pennsylvania.
42 Pa. Cons. Stat. Ann. § 6801.

The CSFA sets forth the

property that is subject to forfeiture by the Commonwealth, see
id., and provides a procedure for the forfeiture proceedings,

4

which must be filed in the court of common pleas of the judicial
district where the property is located, see id. § 6802.
Plaintiffs’ claims in this action relate to property
forfeited through civil forfeiture proceedings brought by the
D.A.’s Office in the Court of Common Pleas of Philadelphia
County.

The majority of the property, Plaintiffs allege, was

forfeited pursuant to the CSFA.
ECF No. 157.

Second Am. Compl. (“SAC”) ¶ 41,

According to Plaintiffs, Philadelphia’s civil

forfeiture program is one of the largest municipal forfeiture
programs in the country, and “unprecedented in scale.”

Id. at

14, ¶ 54. Plaintiffs allege that the D.A.’s Office forfeited
over $90 million worth of property from 1987 to 2012 through
civil forfeiture proceedings, id. ¶ 53, yielding an average of
$5.6 million in forfeiture revenue each year, id. ¶ 54.
Forfeiture data Plaintiffs obtained from the Pennsylvania Office
of the Attorney General indicates that the D.A.’s Office
collected over $72.6 million in forfeiture revenue from fiscal
years 2002 through 2014.

Id. ¶ 57.

Plaintiffs allege that this

amount constitutes nearly one-fifth of the general budget of the
D.A.’s Office as appropriated by the City of Philadelphia.

Id.

¶ 60.
Plaintiffs allege that the City and D.A. Defendants
seize large quantities of personal property for forfeiture,
including cash, cell phones, clothing, jewelry, prescription
5

medication, and licensed firearms.

Id. ¶ 81.

Plaintiffs claim

that the majority of the cash seized involves small amounts of
money.

Id. ¶ 73.

For example, in 2010, Philadelphia filed

8,284 currency forfeiture petitions, with an average of $550 at
issue in each case.

Id. ¶ 74.

Plaintiffs also allege that the

City and D.A. Defendants file civil forfeiture petitions on 300
to 500 real properties (mostly private residences) each year.
Id. ¶ 83.

Approximately 100 of these real properties are

forfeited and sold at auction annually; and a significant
majority of the remaining cases settle under threat of civil
forfeiture.

Id.

Plaintiffs’ Second Amended Complaint alleges that a
number of Defendants’ civil forfeiture policies and practices
are unconstitutional.

With respect to Count Five, specifically,

Plaintiffs allege that the City and D.A. Defendants retain the
proceeds of civil forfeiture proceedings, which provide the
Defendants with a direct financial incentive in the outcome of
the proceedings.

Id. ¶¶ 339-43.

According to Plaintiffs, the

D.A.’s Office and Philadelphia Police Department have a written
agreement to share proceeds obtained from forfeiture
proceedings, id. ¶¶ 67, 342, and use a large portion of the
forfeiture revenue to pay salaries, id. ¶¶ 62, 64.

Plaintiffs

obtained data from the Pennsylvania Office of the Attorney
General indicating that the D.A.’s Office spent over $28.5
6

million of its forfeiture revenue on salaries from fiscal years
2002 through 2014, including the salaries of the prosecutors who
administer Philadelphia’s civil forfeiture program.
64.

Id. ¶¶ 62-

Plaintiffs claim that the City and D.A. Defendants’ direct

financial stake in civil forfeiture proceedings brings
irrelevant and impermissible factors into the investigative and
prosecutorial decision-making process, which in turn creates a
conflict of interest, actual bias, potential for bias, and/or
appearance of bias that violates Plaintiffs’ rights to the fair
and impartial administration of justice guaranteed by the Due
Process Clause of the Fourteenth Amendment.

Id. ¶¶ 339, 344.

III. PROCEDURAL HISTORY
Plaintiffs initiated this action on August 11, 2014,
ECF No. 1, and amended their complaint on November 17, 2014, ECF
No. 40.

Plaintiffs filed a Second Amended Complaint on

September 15, 2016.

ECF No. 157.

Plaintiffs Sourovelis, Welch,

and Hernandez are the owners of real property against which the
D.A. Defendants commenced, under the CSFA, forfeiture that were
pending in the Court of Common Pleas of Philadelphia County at
the time the First Amended Complaint was filed.

SAC ¶¶ 9-17.

Plaintiff Geiger is the owner of personal property against which
the D.A. Defendants commenced a civil forfeiture proceeding.

7

Id. ¶¶ 18-22.

Plaintiffs’ Second Amended Complaint asserts the

following seven claims:
(1)

the City and D.A. Defendants’ policy and practice
of failing to provide notice or a hearing before
seizing real property violates the Due Process
Clause of the Fourteenth Amendment (Count One);

(2)

the City and D.A. Defendants’ policy and practice
of requiring real property owners to waive their
constitutional and statutory rights in order to
obtain access to their property or have the
forfeiture petition withdrawn violates the Due
Process Clause of the Fourteenth Amendment (Count
Two);

(3)

Defendants’ policy and practice of failing to
provide a prompt, post-deprivation hearing
violates the Due Process Clause of the Fourteenth
Amendment (Count Three);

(4)

Defendants’ policy and practice of repeatedly
“relisting” forfeiture proceedings violates the
Due Process Clause of the Fourteenth Amendment
(Count Four);

(5)

the City and D.A. Defendants’ retention of
forfeited property and its proceeds violates the
Due Process Clause of the Fourteenth Amendment
(Count Five);

(6)

Defendants’ policy and practice of prosecutors
controlling forfeiture hearings violates the Due
Process Clause of the Fourteenth Amendment (Count
Six);

(7)

Defendants’ administration of civil forfeiture
and related proceedings, including notices to
property owners, the timing of filings, and
access to court hearings, violates the Due
Process Clause of the Fourteenth Amendment (Count
Seven).

Id. ¶¶ 290-360.

8

Plaintiffs initially sought class certification of
Counts One through Six under Rule 23(b)(2) of the Federal Rules
of Civil Procedure in a motion filed on August 11, 2014.2
No. 3.

ECF

The Court denied the motion without prejudice on June

17, 2015, after the parties represented at a hearing that they
were in the process of potentially stipulating to class
certification, at least as to Count Five.

ECF No. 82.

The

Court later indicated that any subsequent motion for class
certification would relate back to the time the initial motion
for class certification was filed.

ECF No. 87.

On March 16, 2015, Defendants filed a joint motion to
dismiss Plaintiffs’ claims.

ECF No. 52.

The Court denied the

motion in a memorandum and order dated May 12, 2015.
66, 67.

ECF Nos.

Defendants subsequently sought reconsideration of the

Court’s order with respect to their argument that Plaintiff
Geiger “failed to state a claim under the Due Process Clause of
the Fourteenth Amendment because a constitutionally adequate
post-deprivation remedy was available to him under Pennsylvania
law and he failed to avail himself of that remedy to challenge
the seizure, restraint, or retention of his vehicle.”
Joint Mot. for Reconsideration at 2, ECF No. 73.

2

Defs.’

The Court

At the time that Plaintiffs filed their first motion
for class certification, they had not yet filed their Second
Amended Complaint, which added Count Seven.
9

denied the motion for reconsideration on September 7, 2016.

ECF

No. 150.
The parties settled Counts One and Two in an agreement
the Court approved on November 3, 2015.

ECF No. 104.

On August

1, 2016, Plaintiffs filed a motion seeking to (1) join four
state court administrators as defendants for Counts Three, Four,
and Six; (2) file a Second Amended Complaint adding a seventh
claim and other new allegations; and (3) sever Count Five.
No. 139.

ECF

The Court granted the motion on September 14, 2016.

ECF No. 155.
On September 15, 2016, Plaintiffs filed the Second
Amended Complaint, which (1) substituted current Mayor of
Philadelphia James F. Kenney for former Mayor Michael A. Nutter;
(2) substituted current Philadelphia Police Department
Commissioner Richard Ross, Jr., for former Commissioner Charles
H. Ramsey; (3) added the First Judicial District Defendants; and
(4) added Count Seven.

ECF No. 157.

In response, the City

Defendants filed a motion to dismiss Counts Four and Six of the
Second Amended Complaint, ECF No. 158, the D.A. Defendants filed
an answer, ECF No. 161, and the First Judicial District
Defendants moved to dismiss all claims against them, ECF No.
173.
Plaintiffs filed the instant motion, which seeks to
certify a Rule 23(b)(2) class solely with respect to Count Five,
10

on May 17, 2016.3

ECF No. 118.

The City Defendants and the D.A.

Defendants each filed a response, ECF No. 137 and ECF No. 138,
and Plaintiffs filed a reply, ECF No. 141.

On September 19,

2016, the City Defendants filed a motion to submit a sur-reply,
which the Court will grant.

ECF No. 159.

The Court held a

hearing and is now ready to rule on the motion.
IV.

PROPOSED CLASS
Plaintiffs seek to certify the following class under

Rule 23(b)(2) with respect to their fifth claim for relief:
All persons who hold legal title to or
otherwise have a legal interest in property
against which a civil-forfeiture petition
was filed by the Philadelphia District
Attorney’s Office on or after August 11,
2012, or will in the future be filed, in the
Court
of
Common
Pleas
of
Philadelphia
County.
Pls.’ Mem. Support Mot. Certify Rule 23(b)(2) Class Pls.’ Fifth
Claim for Relief at 8, ECF No. 118-1 [hereinafter “Pls.’ Mem.”].
V.

LEGAL STANDARD
A party seeking class certification must satisfy Rule

23(a) of the Federal Rules of Civil Procedure and the
requirements of one of the subsections of Rule 23(b).
3

Wal-Mart

Plaintiffs’ motion and the parties’ subsequent
briefing were filed prior to Plaintiffs’ filing of the Second
Amended Complaint. Accordingly, the motion and briefing refer
to the Amended Complaint. As the Second Amended Complaint is
now the operative pleading in this case, the Court will refer to
the Second Amended Complaint in this memorandum.
11

Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011); In re
Prudential Ins. Co. Am. Sales Practice Litig., 148 F.3d 283, 309
(3d Cir. 1998).

Under Rule 23(a), Plaintiffs must demonstrate

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

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

With respect to Rule 23(b), Plaintiffs here seek to certify a
class under Rule 23(b)(2), which is appropriate when “the party
opposing the class has acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the
class as a whole.”

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

“Rule 23 does not set forth a mere pleading standard,”
but instead, “[a] party seeking class certification must
affirmatively demonstrate [her] compliance with the Rule - that
is, [she] must be prepared to prove that there are in fact
sufficiently numerous parties, common questions of law or fact,
etc.”

Dukes, 564 U.S. at 350.

The Supreme Court has repeatedly

“recognized . . . that ‘sometimes it may be necessary for the
court to probe behind the pleadings before coming to rest on the
certification question,’ and that certification is proper only
12

if ‘the trial court is satisfied, after a rigorous analysis,
that the prerequisites of Rule 23(a) have been satisfied.’”

Id.

at 350-51 (quoting Gen. Tel. Co. of Southwest v. Falcon, 457
U.S. 147, 160-61 (1982)).
The Supreme Court has also recognized that
“[f]requently[,] th[is] ‘rigorous analysis’ will entail some
overlap with the merits of the plaintiff’s underlying claim.
That cannot be helped.’”

Dukes, 564 U.S. at 351 (quoting

Falcon, 457 U.S. at 160).

That is, “class determination

generally involves considerations that are enmeshed in the
factual and legal issues comprising the plaintiff’s cause of
action.”
VI.

Id. (quoting Falcon, 457 U.S. at 160).

DISCUSSION
A.

Rule 23(a)
The City and D.A. Defendants concede that Plaintiffs’

proposed class satisfies numerosity and that the proposed class
counsel adequately represents the class.

They challenge only

commonality, typicality, and Plaintiffs’ ability to adequately
represent the class.

See D.A. Defs.’ Mem. Law. Opp. Pls.’ Mot.

Class Certification (“D.A. Opp.”), ECF No. 138, at 7-12.
Nonetheless, the Court must satisfy itself, through a “rigorous
analysis,” that all of the prerequisites of Rule 23(a) are met.
See Dukes, 564 U.S. at 350-51 (quoting Falcon, 457 U.S. at 160).
13

For the reasons discussed below, the Court finds that
Plaintiffs have met their burden to demonstrate that their
proposed class satisfies the Rule 23(a) requirements of
numerosity, commonality, and adequacy of representation.
However, the Court finds that Plaintiffs’ claims are not typical
of the entire proposed class in one respect: Plaintiffs’
property was subject to civil forfeiture pursuant to the CSFA,
specifically, and Plaintiffs seek to certify a class of all
persons whose property was subject to civil forfeiture,
regardless of the legal basis for the forfeiture.
1.

Numerosity

Rule 23(a)(1) requires that the class be “so numerous
that joinder of all members is impracticable.”
23(a)(1).

Fed. R. Civ. P.

The Third Circuit has explained that “no minimum

number of plaintiffs is required to maintain a suit as a class
action, but generally if the named plaintiff demonstrates that
the potential number of plaintiffs exceeds 40, the [numerosity]
prong” has been met.

Stewart v. Abraham, 275 F.3d 220, 226-27

(3d Cir. 2001).
The putative class consists of thousands of
individuals who have a legal interest in property against which
a civil forfeiture petition was filed.

According to Assistant

District Attorney J. Andrew Jenemann, the Chief of the Public

14

Nuisance Task Force Unit (“PNTF”), the unit responsible for
filing civil forfeiture actions, PNTF has filed 20,590 civil
forfeiture petitions in the Court of Common Pleas of
Philadelphia County since August 11, 2012.
Jenemann ¶ 4, ECF No. 137-1.

See Decl. of Andrew

As this number is far greater than

forty, the Court finds that numerosity is satisfied.
2.

Commonality

Rule 23(a)(2) requires a showing of “questions of law
or fact common to the class.”

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

The

commonality element requires that the named plaintiffs “share at
least one question of fact or law with the grievances of the
prospective class.”

Rodriguez v. Nat’l City Bank, 726 F.3d 372,

382 (3d Cir. 2013) (quoting Baby Neal v. Casey, 43 F.3d 48, 56
(3d Cir. 1994)).

To satisfy the commonality requirement, class

claims “must depend upon a common contention . . . of such a
nature that it 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 one of the claims in one
stroke.”

Dukes, 564 U.S. at 350.

As the Third Circuit has

explained, “[m]eeting this requirement is easy enough: ‘[W]e
have acknowledged commonality to be present even when not all
members of the plaintiff class suffered an actual injury, when
class members did not have identical claims, and, most

15

dramatically, when some members' claims were arguably not even
viable.’”

In re NFL Players Concussion Injury Litig., 821 F.3d

410, 427 (3d Cir. 2016) (quoting In re Cmty. Bank Mortg. Lending
Practices Litig., 795 F.3d 380, 397 (3d Cir. 2015)).
Plaintiffs’ action challenges Defendants’ civil
forfeiture policies and practices.

In Count Five, Plaintiffs

challenge the City and D.A. Defendants’ policy and practice of
retaining forfeited property, alleging that the policy and
practice creates a conflict of interest that violates the Due
Process Clause.

See SAC ¶¶ 338-46.

The legal and factual

questions involved in determining whether or not there is a due
process violation and Plaintiffs are entitled to relief include
(1) how the proceeds of civil forfeiture actions are
distributed; (2) whether the manner in which the proceeds are
distributed creates a conflict of interest; (3) whether that
conflict of interest, if it exists, deprives litigants in civil
forfeiture proceedings of due process of law; and (4) whether an
order enjoining the City and D.A. Defendants’ retention of
forfeiture proceeds and declaring the City and D.A. Defendants’
practices unconstitutional would provide relief for the due
process violation.

See, e.g., Marshall v. Jerrico, Inc., 446

U.S. 238, 241 (1980) (reversing order granting summary judgment
in case alleging that Department of Labor’s retention of funds

16

collected as civil penalties for unlawful employment of civil
labor created an impermissible risk of bias).
These common questions are “capable of class-wide
resolution” because the City and D.A. Defendants allegedly
retain all of the property forfeited through civil forfeiture
proceedings, and, under Plaintiffs’ proposed class definition,
every putative class member has a legal interest in property
against which a civil forfeiture petition was filed.

See, e.g.,

Hardy v. District of Columbia, 283 F.R.D. 20, 24 (D.D.C. 2012)
(finding Rule 23(a) satisfied where plaintiffs challenged the
seizure of their property without adequate notice, despite
individual differences in the circumstances of each seizure).
The City and D.A. Defendants’ sole argument that
Plaintiffs cannot satisfy commonality is that certain members of
the class, including Plaintiff Geiger, did not take full
advantage of the procedures available to them and therefore do
not have viable due process claims.

See D.A. Opp. at 9-12.

The

D.A. Defendants rely on Alvin v. Suzuki, 227 F.3d 107 (3d Cir.
2000), which contains the unremarkable proposition that a
plaintiff cannot skip procedures that “provide due process” and
then complain that due process is unavailable.
(emphasis added).

Id. at 116

Where, as here, a plaintiff is claiming that

the available procedures do not satisfy due process, the

17

plaintiff need not have fully availed himself of those “patently
inadequate” processes in order to have a claim.
3.

Id.4

Typicality

Rule 23(a)(3) requires that the class representatives’
claims be “typical” of the claims of the class.
23(a)(3).

Fed. R. Civ. P.

The typicality inquiry is “intended to assess whether

the action can be efficiently maintained as a class and whether
the named plaintiffs have incentives that align with those of
absent class members so as to assure that the absentees’
interests will be fairly represented.”
57.

Baby Neal, 43 F.3d at

Where claims of the representative plaintiffs arise from

the same alleged wrongful conduct on the part of the defendant,
the typicality prong is satisfied.

See In re Warfarin Sodium

Antitrust Litig., 391 F.3d 516, 532 (3d Cir. 2004).

“‘[E]ven

relatively pronounced factual differences will generally not
preclude a finding of typicality where there is a strong
similarity of legal theories’ or where the claim arises from the
same practice or course of conduct.”

4

In re Prudential Ins. Co.,

The D.A. Defendants also argue that Mr. Geiger does
not have a valid claim because he failed to file a motion under
Pennsylvania Rule of Criminal Procedure 588, which, the D.A.
Defendants assert, provides constitutionally adequate due
process. This Court previously considered and rejected that
argument in its decision denying Defendants’ motion to dismiss,
see ECF No. 66 at 29-30, and its order denying Defendants’ joint
motion for reconsideration, see ECF No. 150.
18

148 F.3d at 311 (alteration in original) (quoting Baby Neal, 43
F.3d at 58).
The City and D.A. Defendants’ sole argument that
Plaintiffs’ claims lack typicality is that Mr. Geiger skipped
available processes.
reasons stated above.

This does not defeat typicality, for the
However, the Court finds that Plaintiffs’

claims are materially different from the claims of a portion of
the proposed class, which prevents Plaintiffs’ claims from being
typical of the claims of that subgroup of putative class
members.
Plaintiffs, like all other putative class members,
have a legal interest in property against which a civil
forfeiture petition was filed.

However, unlike a portion of the

proposed class, Plaintiffs’ property was subject to forfeiture
under the CSFA – i.e., the forfeiture of their property had a
statutory basis.

Plaintiffs do not limit their proposed class

to persons against whose property civil forfeiture proceedings
were filed pursuant to the CSFA or on any other statutory basis.
Instead, Plaintiffs seek to certify a class consisting of all
persons against whose property civil forfeiture proceedings were
filed, regardless of the legal basis for the forfeiture,
including forfeiture based on principles of common law.5

5

Plaintiffs allege that in addition to filing
forfeiture petitions pursuant to the CSFA, the D.A.’s Office
19

Given that the legal basis for the forfeitures,
including the extent to which the forfeitures were authorized by
state statute, may be highly relevant to Plaintiffs’ claims, the
Court finds that Plaintiffs’ claims are not typical of the
claims of those persons whose property was subject to forfeiture
pursuant to a legal basis other than the CSFA.

See Newton v.

Merrill Lynch, Pearce, Fenner & Smith, Inc., 259 F.3d 154, 183
(3d Cir. 2001) (“The typicality inquiry . . . . centers on
whether ‘the named plaintiffs’ individual circumstances are
markedly different or . . . the legal theory upon which the
claims are based differs from that upon which the claims of
other class members will perforce be based.’” (quoting Eisenberg
v. Gagnon, 766 F.2d 770, 786 (3d Cir. 1985)).

Here, putative

class members whose property was subject to civil forfeiture
also brings forfeiture actions that are not authorized by
statute. See SAC ¶ 40. At the time that Plaintiffs filed their
Second Amended Complaint, it appears that Pennsylvania district
attorneys’ offices had filed petitions for “common law”
forfeiture of both (1) contraband per se, which is property that
is “inherently illegal,” and (2) “derivative contraband” - that
is, “property which in and of itself is legal, but ‘nonetheless
constitutes the fruit of a criminal enterprise or is used to
perpetuate an unlawful act.’” Commonwealth v. 2010 Buick
Enclave, 99 A.3d 163, 165-66 & n.1 (Pa. Commw. Ct. 2014)
(quoting Commonwealth v. One 2001 Toyota Camry, 894 A.2d 207,
210 (Pa. Commw. Ct. 2006)). On January 13, 2017, the
Commonwealth Court of Pennsylvania held that common law
forfeiture does not exist in Pennsylvania, overruling One 2001
Toyota Camry, 894 A.2d 207. See Commonwealth v. Irland, No. 448
C.D. 2015, 2017 WL 128643, at *15 (Pa. Commw. Ct. Jan. 13,
2017). Here, Plaintiffs seek to certify a class that would
include persons whose property was subject to civil forfeiture
on the basis of common law principles.
20

proceedings based on common law forfeiture may have additional
arguments regarding the legality of those forfeiture proceedings
that Plaintiffs, and other putative class members whose property
was subject to forfeiture under the CSFA, do not have.
Accordingly, the Court will remove from the class definition
those persons whose property was subject to non-CSFA forfeiture.
Plaintiffs’ claims are typical of the claims of the remainder of
the proposed class – those persons whose property was subject to
forfeiture pursuant to the CSFA – and therefore the Court finds
that typicality is satisfied with respect to the narrower class
definition proposed by the Court.
4.

Adequacy of Representation

Rule 23(a)(4) requires representative parties to
“fairly and adequately protect the interests of the class.”
Fed. R. Civ. P. 23(a)(4).

This requirement “serves to uncover

conflicts of interest between named parties and the class they
seek to represent.”
591, 625 (1997).

Amchem Prods., Inc. v. Windsor, 521 U.S.

The Third Circuit applies a two-prong test to

assess the adequacy of the proposed class representatives.
First, the court must inquire into the “qualifications of the
counsel to represent the class,” In re Prudential Ins. Co., 148
F.3d at 312 (quoting In re Gen. Motors Corp. Pick-Up Truck Fuel
Tank Prods. Liab. Litig., 55 F.3d 768, 800 (3d Cir. 1995)), and

21

second, it must assess whether there are “conflicts of interest
between named parties and the class they seek to represent,” id.
(quoting Amchem, 521 U.S. at 625).

Class counsel must be

“qualified, experienced, and generally able to conduct the
proposed litigation.”

Clarke v. Lane, 267 F.R.D. 180, 197 n.16

(E.D. Pa. 2010) (quoting Walter v. Palisades Collection, LLC,
No. 06-0378, 2010 WL 308978, at *9 (E.D. Pa. Jan. 26, 2010)).
The Court finds that Plaintiffs’ proposed counsel, the
Institute for Justice and local counsel David Rudovsky, are
qualified to represent the putative class.

As the Court found

in its order granting final approval of the settlement of Counts
One and Two, Plaintiffs’ counsel have represented that they have
considerable experience litigating complex cases involving
constitutional issues, the Institute for Justice has substantial
knowledge of the applicable law given its previous experience in
civil forfeiture cases, counsel performed extensive work to
investigate potential claims and develop legal theories, and
counsel will devote sufficient resources to vigorously litigate
this case.

See ECF No. 104 at 3 n.2; Pls.’ Mem. at 17-19.

The

City and D.A. Defendants do not challenge the adequacy of class
counsel.
Regarding the adequacy of the class representatives,
the Court finds that Plaintiffs’ interests are aligned with
those of absent class members, given the Court’s narrower
22

definition of a class consisting of persons against whose
property civil forfeiture proceedings were initiated pursuant to
the CSFA.

See supra at 19-21.

Plaintiffs’ property was

forfeited pursuant to the same statute as absent class members,
and based on the same alleged policies and procedures challenged
in Plaintiffs’ fifth claim for relief.

The City and D.A.

Defendants’ sole argument that Plaintiffs will not adequately
represent the class is again that Mr. Geiger does not have a
claim because he failed to follow available procedures, which is
incorrect.
B.

See supra at 17-18.

Rule 23(b)(2)
A party seeking certification under Rule 23(b)(2) must

establish that “the party opposing the class has acted or
refused to act on grounds that apply generally to the class, so
that final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole.”
P. 23(b)(2).

Rule 23(b)(2) is “almost automatically satisfied

in actions primarily seeking injunctive relief.”
F.3d at 58.

Fed. R. Civ.

Baby Neal, 43

In the Third Circuit, a Rule 23(b)(2) class must

also be “cohesive” - that is, there must not be “disparate
factual circumstances” that render Rule 23(b)(2) certification
inappropriate.

Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 (3d

23

Cir. 1998) (quoting Geraghty v. United States Parole Comm’n, 719
F.2d 1199, 1206 (3d Cir. 1983)).
Plaintiff seek three forms of relief relating to their
claims in Count Five: (1) an entry of judgment declaring the
City and D.A. Defendants’ policy and practice of retaining all
forfeited property and its proceeds unconstitutional under the
Due Process Clause of the Fourteenth Amendment, SAC at 68; (2)
the entry of preliminary and permanent injunctions prohibiting
the City and D.A. Defendants from engaging in that
unconstitutional policy and practice, id. at 69; and (3) an
entry of judgment requiring the City and D.A. Defendants to
dismiss all civil forfeiture proceedings against Plaintiffs and
class members, provide “restitution in the form of return of all
property seized from the Named Plaintiffs and class members,”
and remove all restraints imposed against Plaintiffs’ and class
members’ real property as a consequence of the forfeiture
petition, id. at 70.
The City and D.A. Defendants do not object to the
certification of a class with respect to the first two forms of
relief.

Where the parties disagree, however, is whether or not

class certification is appropriate with respect to Plaintiffs’
request for “restitution.”

Both sets of parties urge the Court

to separately consider Plaintiffs’ restitution claim: (1)
Plaintiffs request that, should the Court decline to certify
24

Plaintiffs’ restitution claim, the Court alternatively certify a
class as to Count Five with respect to liability only, deferring
the question of restitution until a later date, see Pls.’ Mem.
at 23; and (2) the City and D.A. Defendants request that, should
the Court decide to certify Plaintiffs’ claims for declaratory
and injunctive relief with respect to Count Five, the Court
refuse to certify Plaintiffs’ restitution claim, see City Opp.
at 12-13; D.A. Opp. at 26-27.
The Third Circuit explained in In re Hydrogen Peroxide
Antitrust Litigation, 552 F.3d 305 (3d Cir. 2008), that a
district court “possesses broad discretion to control
proceedings and frame issues for consideration under Rule 23.”
Id. at 310 (citing Amchem, 521 U.S. at 630).

As part of that

discretion, Rule 23(c)(4) provides that, “[w]hen appropriate, an
action may be brought or maintained as a class action with
respect to particular issues.”

Fed. R. Civ. P. 23(c)(4).

This

provision permits a district court to grant partial
certification of an action, including certification of specific
claims, elements, or issues.

Gates v. Rohm & Haas Co., 655 F.3d

255, 272-73 (3d Cir. 2011) (discussing considerations when
certifying particular claims or issues under Rule 23(c)(4)).
Accordingly, the Court may certify a class with respect to only
certain portions of Plaintiffs’ claims.

With that framework in

mind, the Court will separately address the suitability of class
25

treatment under Rule 23(b)(2) for each of Plaintiff’s three
requests for relief in Count Five.
For the reasons discussed below, the Court agrees that
Plaintiffs’ requests for (1) a declaration that the City and
D.A. Defendants’ policies and procedures are unconstitutional
and (2) an injunction enjoining those practices and procedures
are suitable for class certification under Rule 23(b)(2).
However, the Court finds that Plaintiffs’ request for a judgment
ordering the return of property should not be certified under
Rule 23(b)(2).
1.

Requests for Declaratory Relief and an Injunction
Enjoining the Allegedly Unconstitutional Policy
and Practice

The first two forms of relief Plaintiffs request in
Count Five are (1) a declaration that the City and D.A.
Defendants’ policy and practice of retaining forfeited property
violates due process; and (2) an injunction enjoining that
policy and practice.

See SAC at 68-69.

The City and D.A.

Defendants do not challenge the certification of Count Five with
respect to these two requests for relief; they do not dispute
that the policies and procedures used in civil forfeiture
proceedings “apply generally to the class,” Fed. R. Civ. P.
23(b)(2), nor do they argue that a claim seeking a declaration

26

that those policies and procedures are unconstitutional is not
suitable for class treatment under Rule 23(b)(2).
Plaintiffs’ requests for a declaration that certain
governmental policies and practices are unconstitutional and an
injunction enjoining those policies and practices are classic
examples of the types of claims that should be certified under
Rule 23(b)(2).

See Baby Neal, 43 F.3d at 58-59 (noting that

“[i]t is the (b)(2) class which serves most frequently as the
vehicle for civil rights actions and other institutional reform
cases that receive class action treatment”); Dukes, 564 U.S. at
361 (reviewing the history of Rule 23(b)(2) and observing that
civil rights cases are “‘prime examples’ of what (b)(2) is meant
to capture” (quoting Amchem, 521 U.S. at 614)).
Plaintiffs claim that the D.A. and City Defendants
retain proceeds from all civil forfeiture proceedings the D.A.
Defendants initiate, which would impact the civil forfeiture
proceedings of all of the putative class members.

Plaintiffs

therefore allege that the City and D.A. Defendants have “act[ed]
on grounds that apply generally to the class.”
23(b)(2).

Fed. R. Civ. P.

A declaration that the City and D.A. Defendants’

policy and practice is unconstitutional and an injunction
enjoining that policy and practice would benefit the entire
putative class equally, and thus would be “appropriate
respecting the class as a whole.”
27

Id.

There are also no

“disparate factual circumstances” relating to the
constitutionality of the City and D.A. Defendants’ retention of
civil forfeiture profits, and cohesiveness is therefore
satisfied.

Barnes, 161 F.3d at 143 (quoting Geraghty, 719 F.2d

at 1206).
Accordingly, class certification of Plaintiffs’
request for declaratory and injunctive relief in Count Five is
appropriate under Rule 23(b)(2), and the Court will grant
Plaintiffs’ motion for class certification with respect to these
two requests for relief.
2.

Request for an Entry of Judgment Ordering the
Return of Property

The bulk of the parties’ arguments regarding class
certification of Count Five relate to Plaintiff’s third request
for relief: an injunction ordering the return of forfeited
property.

See SAC at 70 (requesting “an entry of judgment

requiring Defendants to . . . return . . . all property seized
from the Named Plaintiffs and class members”).
The City and D.A. Defendants argue that this
particular request for relief cannot be certified under Rule
23(b)(2) because the rule does not permit certification of
claims for “restitution.”
23-25.

See City Opp. at 10-11; D.A. Opp. at

The City and D.A. Defendants further argue that because

the majority of the property forfeited in Philadelphia is cash,
28

and the amount of forfeited cash will differ for each class
member, Plaintiffs’ request for restitution amounts to an claim
for “individualized monetary damages,” which is prohibited in a
Rule 23(b)(2) class action under the Supreme Court’s holding in
Dukes.

The City and D.A. Defendants also argue that these

damages are not “incidental” to Plaintiffs’ request for
injunctive and declaratory relief.
Opp. at 23-25.

See City Opp. at 4-5; D.A.

Finally, the City and D.A. Defendants argue that

the proposed class cannot be certified under Rule 23(b)(2)
because it is not sufficiently cohesive, as required by the
Third Circuit in Barnes v. American Tobacco Co., 161 F.3d 127
(3d Cir. 1998).

See City Opp. at 11-12; D.A. Opp. at 25-26.

In response, Plaintiffs contend that “incidental
restitution, even when it consists of returning monies, is
appropriate under Rule 23(b)(2),” and that their request for the
return of property falls into that category.

See Pls.’ Reply

Mem. Law Support Mot. Class Certification (“Pls.’ Reply”) at 1114, ECF No. 141.

Plaintiffs further argue that this incidental

restitution in no way conflicts with Dukes because the “relief
here requires no calculation or case-by-case analysis - simply
the mechanistic return of property,” id. at 15, and all of the
City and D.A. Defendants’ asserted “individualized” defenses are
either waived or invalid, see id. at 16-27.

29

For the reasons discussed below, the Court does not
agree with the City and D.A. Defendants that restitution claims
may never be certified under Rule 23(b)(2).

However, the Court

finds that the Supreme Court’s decision in Dukes, 564 U.S. at
360-61, prevents the certification of Plaintiffs’ request for an
injunction ordering the return of property, because (1) the
relief to which the putative class members are entitled includes
individualized monetary damages, and (2) the restitution sought
is not incidental to Plaintiffs’ requests for injunctive and
declaratory relief.

As a result, the Court need not address the

City and D.A. Defendants’ separate argument that certification
of Plaintiffs’ restitution claim is not permissible because the
class is not sufficiently cohesive.
a.

Restitution Claims Under Rule 23(b)(2)

The City and D.A. Defendants argue that restitution
claims of any kind cannot be certified under Rule 23(b)(2),
citing In re School Asbestos Litigation, 789 F.2d 996, 1008 (3d
Cir. 1986).

See City Opp. at 10-11; D.A. Opp. at 24-25.

The

D.A. Defendants further argue that Rule 23(b)(2) does not
encompass restitution claims because (1) Rule 23(b)(2) permits
only “final injunctive relief or corresponding declaratory
relief,” and does not specifically list “restitution” as an
available remedy, and (2) restitution requires ascertainability

30

so it properly fits under Rule 23(b)(3), which also requires
ascertainability.

See D.A. Opp. at 13-14.

The City and D.A.

Defendants are incorrect.
Certification of a class action under Rule 23(b)(2) is
warranted only where “final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a
whole.”

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

Neither the Supreme Court

nor the Third Circuit has addressed whether an action seeking
restitution is the sort of injunctive relief properly sought
under Rule 23(b)(2).

However, district courts in other circuits

that have addressed the question have classified an order
requiring the return of property as the type of injunctive
relief that is permissible under Rule 23(b)(2).6
Although the Supreme Court has not addressed the
question of restitution, it has made clear that where plaintiffs
solely seek monetary damages, their claims may be certified only
6

See, e.g., Gates v. Towery, No. 04-C-2155, 2004 WL
2583905, at *8 (N.D. Ill. Nov. 10, 2004), aff’d, 430 F.3d 429
(7th Cir. 2005) (certifying Rule 23(b)(2) class where plaintiffs
sought “injunctive relief requiring Defendants to return
Plaintiffs’ property” in addition to compensatory damages
consisting of reasonable interest); Gete v. Immigration &
Naturalization Serv., No. C94-881Z, 1999 U.S. Dist. LEXIS 11806,
at *5-6 (W.D. Wash. July 22, 1999) (certifying Rule 23(b)(2)
class where plaintiffs challenged the constitutionality of
immigration proceedings and sought “a final order declaring the
administrative proceedings void and requiring the INS to either
reopen the proceedings or return the plaintiffs’ property or
money” in addition to separately requesting money damages).

31

under Rule 23(b)(3), not Rule 23(b)(2).
364.

See Dukes, 564 U.S. at

On the basis of the prohibition against certifying class

actions under Rule 23(b)(2) for claims solely involving monetary
damages, the Third Circuit has previously rejected attempts by
putative class action plaintiffs to shoehorn damages claims into
Rule 23(b)(2) by asking for an injunction instead of damages.
In In re School Asbestos Litigation, the Third Circuit affirmed
the district court’s denial of a Rule 23(b)(2) class where
plaintiffs sought “mandatory injunctive relief in the form of
certain remedial action and restitution for expenditures already
incurred to ameliorate asbestos hazards.”

789 F.2d at 1008.

The district court concluded, and the Third Circuit agreed, that
“despite the plaintiffs’ ingenuity the claims in this suit were
essentially for damages.”

Id.

The class therefore could not be

certified under Rule 23(b)(2), because the rule does not permit
certification of “an action for money damages.”

Id.

Following In re School Asbestos Litigation, other
courts in this Circuit have denied certification of a Rule
23(b)(2) class where plaintiffs’ request for restitution was
actually a request for money damages and plaintiffs sought no
other declaratory or injunctive relief.

See, e.g., Smith v.

John Hancock Ins. Co., No. 06-3876, 2008 WL 4145709, at *3 (E.D.
Pa. Sept. 3, 2008) (refusing to certify a Rule 23(b)(2) class
for restitution where it was clear that plaintiff was “actually
32

seeking money damages and request[ed] restitution as an
alternate means of obtaining the same”).

The D.A. Defendants

point to In re School Asbestos Litigation and Smith in support
of their argument that restitution claims cannot be certified
under Rule 23(b)(2).

See D.A. Opp. at 24.

However, these cases

establish only that restitution claims cannot be certified under
Rule 23(b)(2) where the request for an injunction ordering
restitution is merely a disguise for seeking monetary damages as
the sole relief.

These cases do not, as the D.A. Defendants

claim, provide support for a blanket prohibition on the
certification of restitution claims under Rule 23(b)(2).
The D.A. Defendants’ additional arguments that
restitution claims can never be certified under Rule 23(b)(2)
also fail.

The D.A. Defendants argue that restitution is not

permissible under Rule 23(b)(2) because restitution cannot be
implemented unless class members are ascertainable, and Rule
23(b)(2) does not require ascertainability.
13-14.

This argument does not follow logic.

See D.A. Opp. at
The exclusion of

Rule 23(b)(3)’s ascertainability requirement from Rule 23(b)(2)
does not mean that actions satisfying the ascertainability
requirement cannot be certified under Rule 23(b)(2).7

7

To the extent the D.A. Defendants intend to argue that
the ascertainability requirement is omitted from Rule 23(b)(2)
because ascertainability is not necessary for the types of
relief that are proper under Rule 23(b)(2), and therefore that
33

The D.A. Defendants also claim that restitution is
prohibited under Rule 23(b)(2) because the rule does not
specifically list “restitution” as an available remedy, and
instead refers only to “injunctive relief or corresponding
declaratory relief.”

See D.A. Opp. at 12.

But an injunction

ordering restitution is itself a form of injunctive relief,8 and
the sole case the D.A. Defendants cite in support of their
argument does not hold otherwise.

In Thorn v. Jefferson-Pilot

Life Ins. Co., 445 F.3d 311 (4th Cir. 2006), the Fourth Circuit
affirmed the district court’s refusal to certify a Rule 23(b)(2)

any type of relief requiring ascertainability is not properly
certified under Rule 23(b)(2), the Supreme Court has expressly
declined to prohibit certification monetary damages claims –
which would clearly require ascertainability - in Rule 23(b)(2)
actions. See Dukes, 564 U.S. at 366.
8

Indeed, the idea that restitution is impermissible
because it is not a form of injunctive relief conflicts with the
Supreme Court’s previous characterization of restitution. In
Great-West Life & Annuity Ins. Co. v. Knudson, the Supreme Court
explained that restitution may be either a legal or equitable
remedy, and “whether it is legal or equitable depends on ‘the
basis for [the plaintiff’s] claim’ and the nature of the
underlying remedies sought.” 534 U.S. 204, 213 (2002)
(alteration in original) (quoting Reich v. Cont’l Cas. Co., 33
F.3d 754, 756 (7th Cir. 1994)). Restitution is equitable, as
opposed to legal, when the action “seek[s] not to impose
personal liability on the defendant, but to restore to the
plaintiff particular funds or property in the defendant’s
possession.” Id. at 214. Likewise, suits seeking “compensation
for loss resulting from the defendant’s breach of legal duty”
are suits for “money damages,” id. at 210 (quoting Bowen v.
Massachusetts, 487 U.S. 879, 918-19 (1998) (Scalia, J.,
dissenting)), the “classic form of legal relief,” whether such
relief is sought by judgment, injunction, or declaration, id.
(quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 255 (1993)).
34

class where the plaintiffs sought (1) an injunction prohibiting
the defendant insurance company from collecting any future
premiums on its allegedly discriminatory policies, (2)
restitution in the form of money equivalent to the difference in
premium payments made by African-American and white
policyholders, and (3) punitive damages and legal fees.
316, 330-32.

Id. at

The court found that the plaintiffs’ sole

injunctive relief had already been granted, leaving only the
plaintiffs’ claims for monetary restitution, punitive damages,
and legal fees.

Id. at 330-32.

Applying the pre-Dukes standard

that monetary damages are permitted under Rule 23(b)(2) so long
as they do not predominate over a request for injunctive or
declaratory relief – a standard that is no longer good law - the
court concluded that Rule 23(b)(2) certification was not
appropriate because the plaintiffs’ only requested relief was
monetary damages.

Id.

Like the other cases the D.A. Defendants

cite, Thorn supports only the well-established principle that
plaintiffs cannot obtain Rule 23(b)(2) class certification when
they are solely seeking monetary damages.
Therefore, as Plaintiffs correctly point out, the City
and D.A. Defendants have not identified any blanket prohibition
against seeking restitution in a Rule 23(b)(2) action.

The

cases the City and D.A. Defendants cite establish only that
restitution claims may not be certified under Rule 23(b)(2) if
35

the restitution sought is merely another means of seeking
monetary damages as the sole relief.
That rule does not bar Plaintiffs’ restitution claim
here.

The “restitution” Plaintiffs seek is the return of

property, some of which is personal property, including cash,
but some of which is also real property.

While the cash

Plaintiffs seek could be considered a form of monetary damages,
it is clearly not the sole relief Plaintiffs seek, as they also
seek the return of other forms of property, as well as other
declaratory and injunctive relief.

Therefore, the Court will

not deny certification of Plaintiffs’ restitution claim under
Rule 23(b)(2) on that basis.
b.

Individualized Monetary Damages

The City and D.A. Defendants also argue that
Plaintiffs’ restitution claim cannot be certified under Rule
23(b)(2) pursuant to Dukes, 564 U.S. at 360, because the
restitution Plaintiffs seek constitutes “individualized monetary
damages.”

See City Opp. at 4-5, D.A. Opp. at 23-24.
In Dukes, the Ninth Circuit affirmed the district

court’s certification of a Rule 23(b)(2) class of approximately
one and a half million current and former female employees of
Wal-Mart with respect to the plaintiffs’ claim that Wal-Mart
engaged in gender discrimination, in violation of Title VII of

36

the Civil Rights Act of 1964, by denying female employees equal
pay and/or promotions.

Id. at 342.

Plaintiffs sought

injunctive and declaratory relief, punitive damages, and back
pay.

Id.

The Supreme Court reversed the Ninth Circuit order

affirming the district court’s certification of the class,
finding that the plaintiffs’ claims for back pay could not be
certified under Rule 23(b)(2) because that rule “does not
authorize class certification when each class member would be
entitled to an individualized award of monetary damages.”

Id.

at 360-61.
The Supreme Court explained that “claims for
individualized relief” do not satisfy Rule 23(b)(2) because
“[t]he key to the (b)(2) class is ‘the indivisible nature of the
injunctive or declaratory remedy warranted — the notion that the
conduct is such that it can be enjoined or declared unlawful
only as to all of the class members or as to none of them.’”
Id. at 360 (emphasis in original) (quoting Richard A. Nagareda,
Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L.
Rev. 97, 132 (2009)).

Just as Rule 23(b)(2) “does not authorize

certification when each individual class member would be
entitled to a different injunction or declaratory judgment
against the defendant,” it similarly does not authorize class
certification when each class member would be entitled to an
individualized award of monetary damages.
37

Id. at 360 (emphasis

in original).

Instead, the Court explained, “individualized

monetary claims belong in Rule 23(b)(3).”

Id. at 362.

Relying on Dukes, the City and D.A. Defendants claim
that Plaintiffs’ restitution claim cannot be certified because
it requires the Court to award “individualized monetary
damages.”

First, the City and D.A. Defendants argue that the

monetary damages Plaintiffs seek are individualized because each
putative class member forfeited a different amount of cash or
property, suffered varying amounts of emotional and mental harm,
and spent varying amounts on legal services.
5; D.A. Opp. at 23-24.

See City Opp. at

Second, the City and D.A. Defendants

argue that they have defenses to restitution for certain
categories of putative class members and individual putative
class members that they are entitled to litigate on an
individual basis.

See City Opp. at 5-10; D.A. Opp. at 14-21.

In response, Plaintiffs argue that the injunction they
seek is not “individualized” because the “relief here requires
no calculation or case-by-case analysis - simply the mechanistic
return of property.”

Pls.’ Reply at 15.

Plaintiffs explain

that the Court could issue one single classwide order requiring
the City and D.A. Defendants to return all property that was
seized from the putative class members, that is, property seized
in civil forfeiture proceedings initiated in the Court of Common
Pleas of Philadelphia County after August 11, 2012.
38

See Pls.’

Mem. at 21-22.

In this way, Plaintiffs argue, their request for

restitution cannot be compared to a case in which “each
individual class member would be entitled to a different
injunction or declaratory judgment against the defendant,” as
the Supreme Court characterized an individualized award.
id. at 22 (quoting Dukes, 564 U.S. at 360-61).

See

Plaintiffs

further argue that the Court’s ability to satisfy their
restitution claim through one single injunction also
distinguishes the instant action from the post-Dukes cases cited
by the City and D.A. Defendants in which courts denied Rule
23(b)(2) class certification.9
Plaintiffs may be correct that the Court could award
the relief that Plaintiffs seek through the issuance of one
single injunction, and therefore that their request for relief
is not “individualized” in that manner.

However, the question

is not whether the relief Plaintiffs are seeking is
9

See Boyle v. Int’l Bhd. of Teamsters Local 863 Welfare
Fund, 579 F. App’x 72, 76 (3d Cir. 2014) (affirming denial of
Rule 23(b)(2) class certification where plaintiffs’ requested
monetary relief included “repayment of health insurance,
reimbursement of medical expenses, liquidated damages,
compensation for unjust enrichment, interest, reasonable
attorneys’ fees, and costs of suit” and would require a separate
evaluation for each class member of the specific harms caused by
the defendants); Martin v. Ford Motor Co., 292 F.R.D. 252, 286
at n.36 (E.D. Pa. 2013) (denying Rule 23(b)(2) class
certification in an automobile products liability action where
class members resided in different states with different recall
rules and experienced different problems with their vehicles,
because a single injunction could not provide relief to each
member of the class).
39

individualized, but whether the relief putative class members
are entitled to is individualized.

See Dukes, 564 U.S. at 360-

61 (holding that Rule 23(b)(2) “does not authorize class
certification when each class member would be entitled to an
individualized award of monetary damages” (emphasis added)).
As the City Defendants note, plaintiffs in actions
brought pursuant to 42 U.S.C. § 1983 may seek recovery for
emotional and mental harm, legal fees, and other compensatory
and punitive damages.

See City Opp. at 5; Memphis Cmty. Sch.

Dist. v. Stachura, 477 U.S. 299, 312-13 (1986) (holding that
plaintiffs in a § 1983 action may be awarded compensatory
damages for their injuries, as well as punitive damages).
Plaintiffs do not dispute that the calculation of these types of
additional damages would require individualized inquiries.
Instead, Plaintiffs argue that they are not seeking those types
of damages here, so the fact that such damages may require
individualized inquiries is not relevant to the question of
whether or not Plaintiffs’ restitution claim itself is
individualized.

See Pls.’ Reply at 12.

However, Plaintiffs

miss the point.

The potential that individual class members may

have valid claims for damages that Plaintiffs are not pursuing
in this action implicates the precise due process concerns
identified by the Supreme Court in Dukes, and it is therefore

40

highly relevant to this Court’s evaluation of whether or not it
should certify Plaintiffs’ restitution claim.
The Supreme Court explained in Dukes that where
monetary relief is sought in a class action, particular class
members may be collaterally estopped from individually seeking
compensatory damages that they might otherwise be entitled to
receive.

See 564 U.S. at 364.

A class judgment only binds

class members as to matters actually litigated, see Cooper v.
Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984), and some
federal courts have therefore concluded that a class action
seeking only injunctive relief does not bar later claims for
monetary damages.10

Where, by contrast, plaintiffs in a class

action seek a form of monetary damages, later claims for
additional or different damages could be precluded.
District courts in this circuit have acknowledged the
possibility of preclusion where named plaintiffs seek
certification of only certain types of damages claims and absent
class members may have additional, different damages claims.

10

See, e.g., Fortner v. Thomas, 983 F.2d 1024, 1031
(11th Cir. 1993) (explaining that “a prisoner’s claim for
monetary damages or other particularized relief is not barred if
the class representative [in another class action] sought only
declaratory and injunctive relief”); Morrow v. Washington, 277
F.R.D. 172, 204 (E.D. Tex. 2011) (finding that certification of
declaratory and injunctive relief regarding plaintiffs’ claims
that traffic stops were unconstitutional would not foreclose
individual lawsuits for damages based on the individual
circumstances of a particular stop).
41

For example, in Gaston v. Exelon Corp., 247 F.R.D. 75 (E.D. Pa.
2007), the court noted that it was “likely” that were
plaintiffs’ equitable claims to be litigated on a class basis,
“claim preclusion would bar members of the class from later
seeking compensatory and punitive damages.”

Id. at 88 n.22.

In

Gates v. Rohm & Haas Co., 265 F.R.D. 208 (E.D. Pa. 2010), aff’d,
655 F.3d 255 (3d Cir. 2011), the court identified a potential
conflict where the named plaintiffs brought only medical
monitoring and property loss claims and absent class members may
have had additional personal injury claims that could have been
precluded in later actions.

See id. at 217-18.

The court

ultimately determined that the risk of preclusion was not fatal
to certification because plaintiffs sought certification under
Rule 23(b)(3), which would provide class members with notice and
the opportunity to opt out of the class.

See id. at 218.

The preclusion issue identified in Gaston and Gates is
a concern here, as the restitution Plaintiffs seek could be
considered a form of compensatory damages for the purposes of
preclusion.

And, in contrast to Gates, Plaintiffs here seek

certification under Rule 23(b)(2), not Rule 23(b)(3).

Unlike in

a Rule 23(b)(3) class action, absent class members in a Rule
23(b)(2) class action ordinarily receive no notice of their
membership in the class and no right to opt out of the

42

litigation.11

As the Supreme Court explained in Dukes, these

protections are not included in a Rule 23(b)(2) class action
because they are presumed “unnecessary” where a class “seeks an
indivisible injunction benefiting all its members at once.”
U.S. at 362-63.

564

Where a Rule 23(b)(2) class action includes

claims for monetary relief, by contrast, it creates the
possibility that “individual class members’ compensatory-damages
claims would be precluded by litigation they had no power to
hold themselves apart from.”

Id. at 364 (emphasis in original);

see also Rice v. City of Phila., 66 F.R.D. 17, 21 (E.D. Pa.
1974) (Rule 23(b)(2) presents a risk that “individuals who may
never learn of the pendency of [the] case might encounter

11

While Rule 23(c)(2) explicitly provides that a
district court “may direct appropriate notice to the class” for
any class certified under Rule 23(b)(2), see Fed. R. Civ. P.
23(c)(2)(A), the rules do not establish a basis for the
provision of opt-out rights in a Rule 23(b)(2) class. The
Second and Fifth Circuits have held that a district court has
the discretion under Rule 23 to grant opt-out rights in a Rule
23(b)(2) class action. See McReynolds v. Richards-Cantave, 588
F.3d 790, 800 (2d Cir. 2009) (“[T]he language of Rule 23 is
sufficiently flexible to afford district courts discretion to
grant opt-out rights in (b)(1) and (b)(2) class actions.”
(quoting Eubanks v. Billington, 110 F.3d 87, 94 (D.C. Cir.
1990))); In re Monumental Life Ins. Co., 365 F.3d 408, 416 (5th
Cir. 2004) (noting that while opt-out rights are not required, a
district court has the discretion to order notice and opt-out
rights when certifying a Rule 23(b)(2) class). However, the
Third Circuit has not addressed the issue, and, in any case,
Plaintiffs have not requested opt-out rights as an alternative
to the denial of class certification, nor have they provided the
Court with sufficient information to determine that class
members are ascertainable, such that the provision of opt-out
rights would be feasible.
43

difficulty in pursuing meritorious individual litigation in the
future, on the basis of lis pendens, res judicata, or collateral
estoppel”).

Accordingly, as the D.A. Defendants point out,

“[w]ith such claims, class members must be permitted ‘to decide
for themselves whether to tie their fates to the class
representatives’ or go it alone – a choice that Rule 23(b)(2)
does not ensure that they have.’”

D.A. Opp. at 23 (quoting

Dukes, 564 U.S. at 364 (emphasis in original)).
Plaintiffs’ dogged insistence that their restitution
claim should be certified because they are not seeking
“individualized” compensatory and punitive damages on behalf of
putative class members highlights a related concern identified
by the Supreme Court:

permitting monetary damages in a Rule

23(b)(2) action “creates perverse incentives for class
representatives to place at risk potentially valid claims for
monetary relief” in order to obtain certification.
U.S. at 364.

Dukes, 564

Perhaps Plaintiffs are not pursuing other types of

damages in this action precisely because it would make obtaining
certification under Rule 23(b)(2) more difficult.

Class

representatives should not be permitted to preference one form
of available relief over another that might be more beneficial
to certain putative class members - in this case, choosing
restitution over other forms of compensatory damages – in an
action in which individual class members are not notified about
44

the action and are not given the ability to opt-out.

Indeed,

the very reason that notice and opt-out rights are not required
in a Rule 23(b)(2) class action – as the Supreme Court explained
– is that the relief is beneficial to the class as a whole.
Here, restitution may be adequate relief for some
class members, but it may be inadequate for others.

For

example, the City and D.A. Defendants state that large portions
of the forfeited property at issue has been sold or liquidated.12
For putative class members whose property has been sold,
liquidated, or lost, a simple order awarding that property
returned may be insufficient to compensate for their losses.
Even if the injunction were to order the City and D.A.
Defendants to pay the value of the property in the case of lost
or sold property, that value may be difficult to determine and,
accordingly, whatever metric is used to compute the value may
not adequately compensate all class members for their losses.
This is especially true in the case of the putative class
members who forfeited their real property.

Further, for those

putative class members – like Plaintiffs Sourovelis, Hernandez,
and Geiger – whose property has already been returned,
restitution alone would not provide any compensation for the
losses they suffered as a result of the deprivation of their
12

The CSFA specifically includes a procedure for the
sale or liquidation of forfeited property.
45

property for weeks or months, such as the need to find alternate
living arrangements.

See SAC ¶¶ 181, 240-46, 267-71.

Thus,

restitution would not necessarily benefit “the class as a
whole.”

See Fed. R. Civ. P. 23(b)(2).
As putative class members are entitled to

“individualized monetary damages,” certification of Plaintiffs’
restitution claim under Rule 23(b)(2) is not appropriate under
Dukes.13

In accordance with the reasoning expressed by the

Supreme Court in Dukes, in an action where class members will be
bound by the outcome and will not be aware of the action or have
the ability to opt out, the Court will not force the entire
putative class to accept one particular form of damages and be
precluded from receiving other forms of damages to which they
may be entitled.

As a result, the Court will not certify a

class under Rule 23(b)(2) with respect to Plaintiffs’ request
for restitution on their fifth claim for relief.
13

Plaintiffs also argue that even if the restitution
they seek constitutes “monetary damages,” their restitution
claim may still be certified under Rule 23(b)(2) because it is
incidental to the injunctive and declaratory relief they seek.
See Pls.’ Mem. at 22-23. Plaintiffs are correct that Dukes
expressly left open whether certain “incidental” claims for
monetary relief may be permissible under Rule 23(b)(2). See 564
U.S. at 366. However, the Supreme Court emphasized that such
“incidental” damages, if available, must still be “consistent
with the interpretation of Rule 23(b)(2) we have announced” and
“comply with the Due Process Clause.” Id. As discussed above,
Plaintiffs’ restitution claim is not consistent with the Supreme
Court’s interpretation of Rule 23(b)(2) in Dukes. Therefore,
the Court need not reach Plaintiffs’ argument that restitution
is incidental to the other forms of relief they seek.
46

VII. CONCLUSION
For the reasons discussed above, the Court will grant
in part and deny in part Plaintiffs’ motion for class
certification.

The Court will certify a class on Count Five of

Plaintiff’s Second Amended Complaint pursuant to Rule 23(b)(2)
with respect to Plaintiff’s requests for (1) a declaration that
the City and D.A. Defendants’ policy and practice of retaining
forfeited property and its proceeds violates the Due Process
Clause; and (2) an injunction enjoining that policy and
practice.

However, the Court will not certify a Rule 23(b)(2)

class with respect to Plaintiff’s request for the entry of
judgment requiring the return of property.

In addition, the

Court will modify the class definition to limit the class to
those persons against whose property civil forfeiture
proceedings were initiated pursuant to the CSFA.
An appropriate order follows.14

14

Nothing in this order is intended to determine or
decide whether this class, or any other putative class, may be
certified in this action pursuant to Rule 23(b)(3).
47