# Berardi v. City of Pekin, Illinois

> District Court, C.D. Illinois · April 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10136408

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** April 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10136408

## How later opinions describe it (automated extraction)

- finding predominance when “the key question upon which all of the litigation rises or falls can be answered for every plaintiff”

## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION

PATRICIA BERARDI; ROBERT )
CHRISWELL; ALICE ROSE MARY )
ORTIZ; AUSTIN CALLOWAY; ELLEN )
SUNDERLAND; & LISA LYNCH, as the )
parent and next friend of M.L., a minor ) Case No. 1:18-cv-01438
child, individually and on behalf of )
themselves and all other persons similarly )
situated, )
)
Plaintiffs, )
)
v. )
)
CITY OF PEKIN, ILLINOIS; MARK )
ROTHERT, in his official capacity as )
Pekin City Manager, & JOHN MCCABE, )
JOHN P. ABEL, MICHAEL GARRISON, )
MARK LUFT, LLOYD ORRICK, )
MICHAEL RITCHASON, & JIM )
SCHRAMM, in their official capacities as )
Council Members for the City of Pekin, )
)
Defendants. )

ORDER & OPINION
This case is before the Court on Plaintiffs’ Motion to Certify Class (doc. 27) and
Defendants’ Motion to Dismiss for Lack of Jurisdiction (doc. 41). These matters have
been fully briefed and are therefore ripe for review. For the following reasons, the
Motion to Certify Class is granted and the Motion to Dismiss is denied.
BACKGROUND
Plaintiffs Patricia Berardi; Robert Chriswell; Alice Rose Mary Ortiz; Austin
Calloway; Ellen Sunderland; and Lisa Lynch, as the parent and next friend of M.L.,
a minor child, are residents of the City of Pekin, Illinois, living with mobility
disabilities. (Doc. 40 at 3–4).1 Defendants are the City of Pekin, Illinois; its City
Manager, Mark Rothert; and its city council members: John McCabe, John P. Abel,

Michael Garrison, Mark Luft, Lloyd Orrick, Michael Ritchason, and Jim Schramm.
(Doc. 40 at 4–5).2 This lawsuit is a putative class action involving alleged violations
of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq., and the
Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq. (Doc. 40).
In a nutshell, Plaintiffs allege Defendant City of Pekin’s pedestrian rights-of-
way3 are “largely inaccessible to persons with mobility disabilities” in violation of

Title II of the ADA and Section 504 of the Rehabilitation Act. (Doc. 40 at 5–8). As a
remedy, Plaintiffs seek, inter alia, injunctive relief4 “prohibiting Defendants from
violating the ADA [and Rehabilitation Act] and compelling each Defendant to
undertake remedial measures to mitigate the effects of Defendants’ past and
ongoing violations of [the ADA, Rehabilitation Act], and regulations promulgated
thereunder” and specifically ordering Defendants to:
i. Develop ADA-compliant design guidelines for the City’s sidewalks,
curb ramps, and other pedestrian rights-of[-]way;
ii. Utilize the ADA-compliant design guidelines to conduct or cause to
be conducted a comprehensive survey of all pedestrian rights-of-way

1 The Court’s citations are to the page numbers created by the Court’s CMECF
system.
2 The individuals are sued solely in their official capacities. (Doc. 40 at 1).
3 “Pedestrian rights-of-way” include “curb ramps, sidewalks, school crosswalks, public
crosswalks, bus stops, pedestrian crossings, and other walkways.” (Doc. 40 at 4).
4 Plaintiffs also seek monetary damages, declaratory relief, and attorney’s fees and
costs in addition to “[a]ppointment of a monitor to verify Defendants’ compliance with
the ordered injunctive relief.” (Doc. 40 at 28, 30–31).
owned or maintained by the City to identify all areas of non-
compliance;
iii. Prepare a specific plan to remediate all non-compliant pedestrian
rights-of-way owned or maintained by the City; and
iv. Create and implement policies for inspection, repair, maintenance,
and construction/alteration of pedestrian rights-of-way to ensure
compliance with ADA-compliant design guidelines.
(Doc. 40 at 28, 30).
DISCUSSION
Prior to addressing the justiciability issue, it is necessary to clarify Plaintiffs’
claims. Title II of the ADA states “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132.5 This means public entities
“shall operate each service, program, or activity so that the service, program, or
activity, when viewed in its entirety, is readily accessible to and usable by individuals
with disabilities.” 28 C.F.R. § 35.150(a); see also 28 C.F.R. § 35.149.
A public entity may comply with the requirements of this section
through such means as redesign or acquisition of equipment,
reassignment of services to accessible buildings, assignment of aides to
beneficiaries, home visits, delivery of services at alternate accessible
sites, alteration of existing facilities and construction of new facilities,
use of accessible rolling stock or other conveyances, or any other
methods that result in making its services, programs, or activities
readily accessible to and usable by individuals with disabilities. A public

5 Similarly, Section 504 of the Rehabilitation Act prohibits, in pertinent part,
“discrimination under any program or activity receiving Federal financial assistance”
on the basis of disability. 29 U.S.C. § 794(a). Because “Rehabilitation Act claims are
analyzed under the same standards as those used for ADA claims,” Ozlowski v.
Henderson, 237 F.3d 837, 842 (7th Cir. 2001), the Court will focus on the ADA, but
any holding will apply to both statutes unless otherwise noted.
entity is not required to make structural changes in existing facilities
where other methods are effective in achieving compliance with this
section.
§ 35.150(b)(1). “In choosing among available methods for meeting the requirements
of this section, a public entity shall give priority to those methods that offer services,
programs, and activities to qualified individuals with disabilities in the most
integrated setting appropriate.” Id. Where structural changes are the chosen or only
available method, all alterations must be ADA-compliant. Id. And the regulations
explicitly require curb ramps be installed at intersections having curbs on all newly
constructed or altered pedestrian walkways, streets, roads, or highways. § 35.151(i).
Some courts have concluded municipality pedestrian rights-of-way as well as

their construction, maintenance, and alteration fall within the definition of “services,
programs, or activities of a public entity.” E.g., Barden v. City of Sacramento, 292
F.3d 1073, 1076–77 (9th Cir. 2002); Culvahouse v. City of LaPorte, 679 F. Supp. 2d
931, 941 (N.D. Ind. 2009) (“[Municipalities have] exclusive jurisdiction and
responsibility for [their] sidewalks and an obligation to maintain [their] sidewalks so
that the sidewalk system, when viewed in its entirety, is readily accessible to and

usable by individuals with disabilities.” (internal quotation marks omitted)); Hamer
v. City of Trinidad, 441 F. Supp. 3d 1155, 1172 (D. Colo. 2020) (“The statutory text,
as well as its structure, legislative history, and broader statutory context, make clear
that sidewalks[, as well as their construction, maintenance, and alteration] are a
service, program, or activity, as those terms are plainly and ordinarily understood.”).6
Defining maintenance of pedestrian rights-of-way as a service arguably has
immediate consequences under the ADA, as it essentially eliminates the safe harbor

for “existing facilities”7 (i.e., that structural changes are not required unless the
facility undergoes an alteration, see §§ 35.150(a)(1), 35.151(b)) as to municipality
sidewalks. The service (maintenance) cannot be ADA-compliant without the facility
(pedestrian rights-of-way) also being ADA-compliant. It is therefore arguable that the
City of Pekin’s pedestrian rights-of-way were required to have been made ADA-
complaint no later than “three years [after] January 26, 1992,” § 35.150(c), regardless

of whether any portion thereof has been altered since enactment of the ADA. This,
however, is subject to the defense permitting municipalities to avoid modification
where the modification would create undue financial or administrative burdens. See
§ 35.150(a)(3).
The Court understands this lawsuit to assert decades of municipality policy or
inaction have resulted in a public sidewalk system that cannot be meaningfully or
safely accessed by individuals with mobility disabilities. Specifically, Plaintiffs’

Amended Complaint alleges the single proposition that, viewed in its entirety, the
Pekin sidewalk system is inaccessible to individuals with mobility disabilities, thus
denying such individuals the benefits of a city service (maintenance of pedestrian

6 The Court recognizes whether sidewalks and/or their maintenance are “services”
within the meaning of the ADA is an open question in the Seventh Circuit. That issue,
however, ought not be decided at this stage of the proceedings.
7 “Facility” includes “all or any portion of buildings, structures, . . . roads, walks,
passageways, [and] parking lots.” 28 C.F.R. § 35.104.
rights-of-way) in violation of Title II of the ADA (Count I) and Section 504 of the
Rehabilitation Act (Count II). (Doc. 40 at 23–31). Plaintiffs seek widespread
remediation of all noncompliant pedestrian rights-of-way in the City of Pekin so as to

facilitate citywide ADA compliance. In other words, the relief they seek is not limited
to remedying those particular instances of noncompliance alleged in the Amended
Complaint. It is clear Plaintiffs’ goal is for the Pekin sidewalk system, “when viewed
in [its] entirety, [be considered] readily accessible to and usable by individuals with
[mobility] disabilities,” see 28 C.F.R. § 35.150(a). (Docs. 40 at 28, 30–31; 29 at 14, 21;
35).

Defendants, however, frame the Complaint differently, seemingly describing
each individual Plaintiff’s and putative class member’s experiences as separate
claims for relief as opposed to evidence of the overarching claim that the Pekin
sidewalk system, in general, is inaccessible to those with mobility disabilities. (See,
e.g., doc. 32 at 19 (stating that “in order to determine whether Defendants are liable
to a given plaintiff under Title II and the Rehabilitation Act, the Court would need to
look at the particular barrier(s) encountered by each putative class member [and]

perform [an] individual-specific analysis” to determine both liability and damages)).
Defendants’ framing of Plaintiffs’ claims conflates the claims with the facts and
evidence necessary to prevail on those claims. To prevail, Plaintiffs must of course
identify noncompliant portions of the sidewalk system and point to enough defects to
prove the sidewalk system as a whole is impermissibly inaccessible. Contrary to
Defendants’ position, however, this necessity does not automatically divide Plaintiffs’
two claims into subclaims that only the identified defects are subject to this lawsuit
nor does Plaintiffs’ assertion the sidewalk system is noncompliant for a number of
different reasons, such as uneven sidewalks; noncompliant and nonexistent curb cuts;

inaccessible bus stops; and placement of sewer covers, light poles, fire hydrants, and
snow piles. To be sure, this lawsuit would require the factfinder to assess several
individual defects in the Pekin sidewalk system, but not to determine liability as to a
specific individual; rather, such consideration goes to the determination whether the
sidewalk system as a whole is impermissibly inaccessible to individuals with mobility
disabilities. A finding that a specific defect identified by one Plaintiff or putative class

member is not itself a violation of the ADA or Rehabilitation Act would not
automatically absolve Defendants of liability to that individual. If the factfinder is
persuaded that Defendants engaged in the systemic discrimination alleged, then
Defendants would still be liable to that individual, provided he or she is actually a
member of the putative class.
In short, Plaintiffs’ grievance is not limited to the specific instances of
noncompliance they allege in the Amended Complaint. Even if each of those specific

instances of alleged noncompliance were remedied today, Plaintiffs could potentially
maintain claims stemming from the alleged systemic, decades-long failure of
Defendants to bring the Pekin sidewalk system into compliance with the ADA and
Rehabilitation Act. For these reasons, the Court rejects Defendants’ framing of
Plaintiffs’ claims, which forms the basis of most of their arguments discussed herein.
I. Jurisdiction
There are two types of jurisdictional challenges: facial and factual. “Facial
challenges require only that the court look to the complaint and see if the plaintiff

has sufficiently alleged a basis of subject matter jurisdiction.” Apex Digit., Inc. v.
Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (emphasis omitted). “In
reviewing a facial challenge, the court must accept all well-pleaded factual allegations
as true and draw all reasonable inferences in favor of the plaintiff.” Silha v. ACT,
Inc., 807 F.3d 169, 173 (7th Cir. 2015). “In contrast, a factual challenge lies where the
complaint is formally sufficient but the contention is that there is in fact no subject
matter jurisdiction.” Apex Digit., 572 F.3d at 444 (internal quotation marks omitted).

In such cases, “[t]he district court may properly look beyond the jurisdictional
allegations of the complaint and view whatever evidence has been submitted on the
issue to determine whether in fact subject matter jurisdiction exists.” Id. In any
event, the plaintiff “bears the burden of establishing that the jurisdictional
requirements have been met.” Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell,
770 F.3d 586. 588–89 (7th Cir. 2014).

“Federal courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute, which is not to be expanded by judicial
decree.” United States v. Alkaramla, 872 F.3d 532, 534 (7th Cir. 2017) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Whether a case
falls within the limited jurisdiction of the federal courts is both a constitutional and
a statutory question. “[T]he Constitution imposes a ceiling, albeit a high one, on the
potential jurisdiction of the federal courts” by “permit[ting] federal courts to hear only
certain claims.” Int’l Union of Operating Eng’rs, Loc. 150, AFL-CIO v. Ward, 563 F.3d
276, 280–81 (7th Cir. 2009); see also U.S. Const. art. III, § 2, cl. 1. Congress has the
authority “to further refine the actual scope of federal jurisdiction” because federal

jurisdiction must be exercised pursuant to a statutory grant. Id. Thus both the
Constitution and federal statutory law “must authorize a federal court to hear a given
type of case” for federal jurisdiction to lie. Id. at 280.
Defendants argue constitutional jurisdiction, i.e., standing, is facially lacking
in this case. “As the party invoking the court’s jurisdiction, the plaintiff bears the
burden of establishing the elements of standing.” Id. at 285 (citing Spokeo, Inc. v.

Robins, ___ U.S. ___, 136 S. Ct. 1540, 1547 (2016)). “Those elements are: (1) the
plaintiff suffered a concrete and particularized injury in fact; (2) the injury is fairly
traceable to the challenged conduct; and (3) the injury is likely to be redressed by a
favorable judicial decision.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–
60 (1992)). Defendants challenge the third element: redressability.8
Defendants maintain Plaintiffs’ request for injunctive relief is a veiled request
that the Court order Defendants to create the self-evaluation and transition plans

mandated by 28 C.F.R. §§ 35.105, 35.150 and 45 C.F.R. § 84.22. (Doc. 41 at 3–4). They
argue there is no private cause of action to enforce these regulations, so Plaintiffs

8 The Amended Complaint easily satisfies the first two elements; Plaintiffs allege
they were concretely and directly harmed by Defendants’ alleged failure to maintain
Pekin pedestrian rights-of-way in a manner that complies with the ADA and
Rehabilitation Act. See Spuhler, 983 F.3d at 285 (“Initially, a plaintiff may
demonstrate standing by clearly pleading allegations that “plausibly suggest” each
element of standing when all reasonable inferences are drawn in the plaintiff's
favor.”).
lack standing to request the injunctive relief sought in the Amended Complaint.9
(Doc. 41 at 3–6). Recognizing the Seventh Circuit has yet to decide whether
individuals have a private cause of action to enforce the regulations at issue,

Defendants argue “federal courts across the country have considered the issue and
have found that there is no private right of action to enforce these regulations,”
citing Lonberg v. City of Riverside, 571 F.3d 846 (9th Cir. 2009); Iverson v. City of
Bos., 452 F.3d 94, 104 (1st Cir. 2006); Ability Ctr. of Greater Toledo v. City of
Sandusky, 385 F.3d 901, 914 (6th Cir. 2004); Liberty Res., Inc. v. City of Philadelphia,
2020 WL 3642484, at *5-6 (E.D. Pa. 2020); Brown v. Dep’t of Pub. Safety & Corr.

Servs., 383 F. Supp. 3d 519, 555–56 (D. Md. 2019); and McBay v. City of Decatur, Ala.,
2014 WL 1513344, at *13 (N.D. Ala. 2014). (Doc. 41 at 4–5).
Plaintiffs argue Defendants misconstrue the injunctive relief sought. (Doc. 45
at 3–6). The Court agrees. The language Defendants quote for their erroneous
construction conveniently omits the immediately preceding sentence, which requests
“[a] preliminary injunction and a permanent injunction, prohibiting Defendants from
violating the ADA, 42 U.S.C. § 12133, et seq., and compelling each Defendant to

undertake remedial measures to mitigate the effects of Defendants’ past and ongoing
violations of Title II of the ADA, and regulations promulgated thereunder.” (Doc. 40
at 28).10 The only reasonable and logical interpretation of this language—that

9 Notably, Defendants only challenge Plaintiffs’ standing to seek the injunctive relief
sought in the Amended Complaint; they do not challenge the Court’s jurisdiction to
hear Plaintiffs’ substantive claims.
10 Plaintiffs request correspondingly identical relief in connection with their
Rehabilitation Act claim in Count II. (Doc. 40 at 31).
Plaintiffs seek actual remediation and prospective ADA compliance, not merely a
plan to remediate—wholly defeats Defendants’ argument. Defendants offer no
argument or authority holding Plaintiffs are precluded from seeking remedial

injunctive relief in this context; in fact, remedial injunctive relief is a type of remedy
typically sought and awarded in similar cases. See, e.g., Culvahouse, 679 F. Supp. 2d
at 947; Barden, 292 F.3d at 1075. Accordingly, Plaintiffs satisfy the redressability
requirement, and jurisdiction lies. The Motion to Dismiss must therefore be denied.
II. Class Certification
Plaintiffs ask the Court to certify a class defined as:
All persons with mobility disabilities who were residents of the city of
Pekin from December 11, 2016 through December 11, 2018 who have
been denied access to pedestrian rights[-]of[-]way in the City as a result
of Defendants’ policies and practices with regard to the City’s pedestrian
rights-of-way and disability access.
(Doc. 29 at 21).
“The party seeking class certification bears the burden of showing by a
preponderance of the evidence that certification is proper.” Orr, 953 F.3d at 497.
Firstly, the proposed class must be “sufficiently definite that its members are
ascertainable.” Lacy v. Cook Cty., Illinois, 897 F.3d 847, 864 (7th Cir. 2018) (internal
quotation marks omitted). Secondly, the movant(s) must comply with Federal Rule of
Civil Procedure 23, which requires satisfaction of “all four requirements of Rule
23(a)—numerosity, commonality, typicality, and adequacy of representation—and
any one of the general categories of Rule 23(b).” Orr v. Shicker, 953 F.3d 490, 497 (7th
Cir. 2020).
Defendants oppose the Motion to Certify Class because, they argue, each
Plaintiff’s and putative class member’s individual claim presents a unique fact-based
inquiry, precluding findings of sufficient definiteness, commonality, predominance,

and superiority. (Doc. 32 at 10–13, 13–16, 18–21). Defendants also argue the proposed
injunctive relief does not actually remedy the asserted claims. (Doc. 32 at 17–18). As
the Court has rejected Defendants’ construction of Plaintiffs’ claims and requested
relief, these arguments fail. The Court instead finds class certification is appropriate
in this case.
A. Definiteness of the Class
“Rule 23 requires that a class be defined, and experience has led courts to

require that classes be defined clearly and based on objective criteria.” Mullins v.
Direct Digit., LLC, 795 F.3d 654, 659 (7th Cir. 2015). In deciding whether a proposed
class is sufficiently defined, the proper emphasis is “on the adequacy of the class
definition itself,” not whether “it would be difficult to identify particular members of
the class.” Id. Recognizing this rule may be susceptible to misinterpretation, the
Seventh Circuit has directed courts to “focus on the three common problems that have

caused plaintiffs to flunk this requirement.” Id. “First, classes that are defined too
vaguely fail to satisfy the ‘clear definition’ component.” Id. “To avoid vagueness, class
definitions generally need to identify a particular group, harmed during a particular
time frame, in a particular location, in a particular way.” Id. at 660. “Second, classes
that are defined by subjective criteria, such as by a person’s state of mind, fail the
objectivity requirement.” Id. “Third, classes that are defined in terms of success on
the merits—so-called ‘fail-safe classes’—also are not properly defined.” Id.
Defendants contend the class is not sufficiently ascertainable because whether
an individual is a member of the putative class depends upon a highly specific
determination of whether the barrier identified by that individual was the result of a

city policy or practice and whether that barrier was ADA-compliant. (Doc. 32 at 10–
13). In support of their argument, Defendants cite Jamie S. v. Milwaukee Pub. Sch.,
668 F.3d 481, 495 (7th Cir. 2012). There, the plaintiffs sought certification of a class
including “disabled students who may have been eligible for special education but
were not identified and remain unidentified.” Id. (emphasis in original). In concluding
the class was insufficiently defined, the Seventh Circuit reasoned:

By what standard is class membership to be determined? How is the
court to decide whether there was reason to believe in 2000–2005 that a
presently unidentified child was potentially eligible for special-
education services from MPS? It’s not hard to see how this class lacks
the definiteness required for class certification; there is no way to know
or readily ascertain who is a member of the class.

Of course, unidentified but potentially eligible disabled students
are defined not only by having not been identified but also by having a
disability. If we could easily identify all Milwaukee students with
disabilities during the relevant time period, perhaps we could
crosscheck that list against a list of known disabled students to
determine which students MPS failed to identify and refer for an IEP
evaluation. But identifying disabled students who might be eligible for
special-education services is a complex, highly individualized task, and
cannot be reduced to the application of a set of simple, objective criteria.
Every step of the child-find inquiry and IEP process under the IDEA is
child specific and requires the application of trained and particularized
professional educational judgment. In short, a class of unidentified but
potentially IDEA-eligible disabled students is inherently too indefinite
to be certified.

Id. at 495–96 (emphasis in original). In short, whether a student “may have been
eligible for special education” was not a question that could be answered based on a
list objective criteria.
The proposed class definition here does not suffer the same obvious defect.
Under the proposed definition, an individual is a class member if he or she (1) has a
mobility disability; (2) resided in the City of Pekin, Illinois, between December 11,
2016, and December 11, 2018; (3) was denied access to the City’s pedestrian rights-
of-way; and (4) the denial of access was due to Defendants’ policies and practices with
regard to the city pedestrian rights-of-way and disability access. (See doc. 29 at 21).
The first three are clearly objective criteria that can be determined with relative ease.
Defendants’ quarrel lies with the fourth. They suggest this criterion essentially

requires a determination of whether the denial of access to the Pekin sidewalk system
is due to an ADA violation (doc. 32 at 10–13), which would implicate the third reason
proposed class definitions generally fail, see Mullins, 795 F.3d. at 660. The Court
disagrees. The question whether an individual’s denial of access is due to the
Defendants’ policies and practices does not require determining whether the alleged
barrier violates the ADA. Further, it is reasonable to assume the sidewalk system is
in its current state due to Defendants’ policies and practices, as the Court presumes—

at this stage of the proceedings—Defendants bear responsibility for the maintenance
and general upkeep of the Pekin sidewalk system. The fourth criterion thus appears
to be somewhat superfluous, but that does not necessarily render the definition
impermissibly indefinite.
Cases involving similar claims have defined classes similarly yet more simply

than the proposed definition here. In Culvahouse, the class was defined as:
“[A]ll persons who live or will live in or who visit or will visit the City of
LaPorte, Indiana, and who, because of a disability as defined by the
Americans with Disabilities Act, (1) use wheelchairs or other wheeled
devices for movement, or (2) have gait disturbances, or (3) have other
difficulties in ambulation.”

679 F. Supp. 2d at 938 n.2. And in Barden, the class was defined as “all persons with
mobility and/or vision disabilities who seek full and equal access pertaining to curb
cuts and sidewalks in the City of Sacramento’s public rights of way.” Barden v. City
of Sacramento, No. 2:99-cv-00497, Doc. 15 (E.D. Cal. July 11, 2000) rev’d on other
grounds 292 F.3d 1073 (9th Cir. 2002).11
In consideration of Seventh Circuit precedent and class definitions in similar
cases, the Court believes the following definition will best represent the class
Plaintiffs seek to represent in pursuing the claims stated in the Amended Complaint:
All persons with mobility disabilities who were residents of the City of
Pekin from December 11, 2016, through December 11, 2018, and who
were denied meaningful access to public pedestrian rights-of-way in the
City during that timeframe.

This definition eliminates the language Defendants contest and which the Court has
determined superfluous. Further, specifying “meaningful access” as opposed to any

11 The Court recognizes the class definitions in both Culvahouse and Barden were
stipulated to by both parties, but they nevertheless can provide helpful guidance on
acceptable class definitions in this context.
“access” resonates with Plaintiffs’ clear desire for full and equal access to city services
and ensures class membership for those individuals who have used or attempted to
use the Pekin sidewalk system despite encountering the alleged risks and barriers so

as to avoid risky alternatives, such as ambulating in roadways. Thus, in its discretion
and in the interests of judicial economy, the Court hereby modifies the class
definition. See Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir. 2003) (noting the district
court may redefine the class in its consideration under Rule 23); Kress v. CCA of
Tennessee, LLC, 272 F.R.D. 222, 232 (S.D. Ind. 2010), aff’d, 694 F.3d 890 (7th Cir.
2012) (“[T]he Court has broad discretion to modify the class definition if necessary.”);

Beaton v. Software, No. 13-CV-08389, 2017 WL 4740628, at *3 (N.D. Ill. Oct. 19,
2017), aff’d sub nom., Beaton v. SpeedyPC Software, 907 F.3d 1018 (7th Cir. 2018)
(“[N]othing prevents this Court from considering a revised definition or, indeed, sua
sponte revising the definition of a proposed class.”). Should the parties believe this
definition is deficient, they may file a motion to amend the class definition.
B. Rule 23(a) Requirements
The Court next considers the four requirements under Rule 23(a).

1. Commonality
Commonality requires a plaintiff to show that “there are questions of law or
fact common to the class.” Fed. R. Civ. P. 23(a)(2). To satisfy this requirement,
plaintiffs “must assert a common injury that is ‘capable of class[-]wide 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.’ ” Lacy, 897 F.3d at 865
(quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). “The key to
commonality is not the raising of common questions . . . but, rather, the capacity of a
class-wide proceeding to generate common answers apt to drive the resolution of the
litigation.” Id. (alteration in original and internal quotation marks omitted). “The

critical point is the need for conduct common to members of the class.” Id. (alteration
in original and internal quotation marks omitted).
As in Lacy, commonality abounds here. Plaintiffs and the putative class
members are all Pekin residents with mobility disabilities; they face common physical
barriers in the City of Pekin when they confront allegedly noncompliant or
nonexistent “curb ramps, sidewalks, school crosswalks, public crosswalks, bus stops,

pedestrian crossings and other walkways” (doc. 40 at 5). Compare with id. at 865
(“The plaintiffs share a common physical impairment, as they are all confined to
wheelchairs when attending court. Furthermore, they face common physical barriers
when they confront steep ramps and noncompliant bathroom facilities.”).
Additionally, Plaintiffs seek a common remedy12: an injunction requiring Defendants
to, inter alia, prospectively cease violating the ADA and Rehabilitation Act in their
duty to maintain the city sidewalk system and to remediate the existing points of

noncompliance (doc. 40 at 28, 30–31). Compare with id. (“And finally, they seek

12 Of course, Plaintiffs also seek monetary damages (doc. 40 at 28, 30–31), but a
request for individualized monetary damage awards does not preclude a finding of
commonality, e.g., Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013)
(“If the issues of liability are genuinely common issues, and the damages of individual
class members can be readily determined in individual hearings, in settlement
negotiations, or by creation of subclasses, the fact that damages are not identical
across all class members should not preclude class certification.”).
common modifications in the form of mandatory policies for assistance in pushing
them up and down the ramps and escorting them to ADA-compliant restrooms.”).
These common characteristics evoke the common question whether the City of

Pekin has maintained its sidewalk system in a manner that complies with the ADA
and Rehabilitation Act, a threshold question of liability applicable to each Plaintiffs’
and putative class members’ claims. As in Lacy, [t]his is not a situation where the
defendant’s allegedly injurious conduct differs from plaintiff to plaintiff; rather, they
all complain about the same failure to implement and enforce policies” that would
accommodate all individuals with mobility disabilities.13 Id. at 865–66 (internal

quotation marks and citations omitted); see also Chicago Tchrs. Union, Loc. No. 1 v.
Bd. of Educ. of City of Chi., 797 F.3d 426, 440 (7th Cir. 2015) (CTU) (“The plaintiffs
have demonstrated commonality by asserting that a uniform employment practice
(the set of criteria used to evaluate the school) used by the same decision-making body
to evaluate schools was discriminatory.”). The commonality requirement is satisfied
here.14
2. Typicality

The “commonality and typicality requirements . . . tend to merge.” Wal-Mart,
564 U.S. at 349 n.4 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13

13 Plaintiffs could have framed their claims as Defendants would have the Court
interpret them; that is, they could have raised individual claims challenging specific
barriers. But that is not what they have chosen to do. Rather, they have chosen to
allege the Pekin sidewalk system is generally inaccessible to individuals with
mobility disabilities in violation of the ADA and Rehabilitation Act. Thus, each
Plaintiff’s and putative class member’s claims are one in the same.
14 Defendants also assert their argument raised in opposition to standing against a
finding of commonality; however, the Court has already rejected that argument.
(1982)). However, the two differ in that “the commonality inquiry focuses on what
characteristics are shared among the whole class while the typicality inquiry focuses
on the desired attributes of the class representative.” Howard v. Cook Cty. Sheriff's

Off., ___ F.3d ___, No. 20-1723, 2021 WL 822744, at *12 (7th Cir. Mar. 4, 2021)
(quoting Newberg on Class Actions § 3:31). Specifically, “[a] plaintiff’s claim is typical
if it arises from the same event or practice or course of conduct that gives rise to the
claims of other class members and [is] based on the same legal theory.” Lacy, 897
F.3d at 866 (internal quotation marks omitted and alteration in original). “The logic
behind the typicality requirement ‘is that a class representative will adequately

pursue her own claims, and if those claims are “typical” of those of the rest of the
class, then her pursuit of her own interest will necessarily benefit the class as well.’”
Howard, 2021 WL 822744, at *12 (quoting Newberg on Class Actions § 3:28).
Pursuit of the named Plaintiffs’ claims will benefit the class as a whole because
the named Plaintiffs’ claims and the putative class members’ claims are one in the
same: the Pekin sidewalk system is impermissibly inaccessible to those with mobility
disabilities due to the City’s alleged failure to maintain its sidewalk system in a

manner that complies with the ADA and Rehabilitation Act. No named Plaintiff
raises any separate or independent claim. For this reason and those discussed above,
the Court finds Plaintiffs have carried their burden to prove their claims “have the
same essential characteristics as the claims of the class at large.” Lacy, 897 F.3d at
866 (internal quotation marks omitted).
3. Numerosity
The Court further finds Plaintiffs have carried their burden to prove sufficient
numerosity. To meet the numerosity requirement, the proposed class must be “so

numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). In
the Seventh Circuit, “a forty-member class is often regarded as sufficient to meet the
numerosity requirement,” though the proper focus ought to be the “practicability of
joinder” rather than the number of putative class members. Anderson v. Weinert
Enterprises, Inc., 986 F.3d 773, 777 (7th Cir. 2021). This requires evaluation of “the
nature of the action, the size of the individual claims, and the location of the members
of the class or the property that is the subject matter of the dispute.” Id. (quoting 7A

C. Wright & A. Miller, Federal Practice & Procedure § 1762 (3d ed.)).
Though the central locality of the putative class members might make joinder
less burdensome, the Court finds the nature of the action and the size and type of
individual claims favor a finding of sufficient numerosity. Plaintiffs and the putative
class members assert the same claims; it makes sense to answer all common
questions in one proceeding. And although individual monetary damages may be

relatively small, the injunctive relief sought would have a major effect benefitting all
class members if awarded.
Furthermore, Plaintiffs have submitted declarations of an additional 35
individuals who meet the class definition (doc. 29-2) and cited sufficiently reliable
data to indicate the proposed class could reasonably include hundreds if not
thousands of individuals (doc. 29 at 26–28 (citing statistics and data from the Census
and the U.S. Department of Housing and Urban Development)). The likely possibility
that the putative class will include hundreds if not thousands of individuals is also
strong support for a finding of numerosity, as it would be extremely difficult if not
impossible to manage a single case with hundreds or thousands of named plaintiffs.

For these reasons, the Court finds Plaintiffs have carried their burden of proving
joinder would be impracticable.
4. Adequacy of Representation
Finally, the Court finds Plaintiffs have carried their burden of proving they
and their counsel will provide adequate representation. Class representatives “must
be part of the class and possess the same interest and suffer the same injury as the
class members.” Wal-Mart, 564 U.S. at 348–49 (internal quotation marks omitted);

Fed. R. Civ. P. 23(a)(4) (“[T]he representative parties [must] fairly and adequately
protect the interests of the class.”); Levie v. Sears, Roebuck & Co., 496 F. Supp. 2d
944, 950 (N.D. Ill. 2007) (“[T]he interests of the class representative must coincide
with those of the rest of the class, and the class representative’s attorney must be
prepared to prosecute the action vigorously, tenaciously and with adequate financial
commitment.”). The named Plaintiffs are members of the proposed class. They are

individuals who require the use of canes, walkers, and wheelchairs or scooters to
ambulate and who have resided in various neighborhoods of the City of Pekin at all
relevant times. (Doc. 40 at 15–23). Each named Plaintiff has suffered the same injury
as all putative class members: they have been denied meaningful access to the Pekin
sidewalk system due to various issues such as, but not limited to, the lack of curb
cuts, uneven and cracked sections of sidewalk, and barriers blocking wheelchair and
scooter passage. (Doc. 40 at 15–23). The named Plaintiffs do not assert any claims
that are not common to all putative class members, and no conflict of interest has
been identified. In short, the evidence before the Court sufficiently demonstrates the
named Plaintiffs will adequately represent the putative class.

Similarly, Plaintiffs have demonstrated their chosen counsel will adequately
represent the class. “[A] court that certifies a class must appoint class counsel,” upon
consideration of:
(i) the work counsel has done in identifying or investigating potential
claims in the action;
(ii) counsel’s experience in handling class actions, other complex
litigation, and the types of claims asserted in the action;
(iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class[.]
Fed. R. Civ. P. 23(g)(1)(A). Plaintiffs’ counsel has extensive combined experience in
municipal law, disability civil rights actions, and class action lawsuits; counsel have
also conducted “a significant investigation into the potential claims in this action,”
totaling 700 hours thus far and including scores of interviews, town hall meetings,
and consultations with expert architects. (Docs. 29 at 34–35; 29-7, 29-8). Plaintiffs
have met their burden to prove current counsel will provide competent
representation.

C. Rule 23(b) Requirements
Having complied with Federal Rule of Civil Procedure 23(a), Plaintiffs must
also satisfy “one of the general categories of Rule 23(b).” Orr, 953 F.3d at 497. Here,
Plaintiffs seek hybrid certification under Rules 23(b)(2) and (b)(3). The Court will
address each in turn.
1. Rule 23(b)(2)
Rule 23(b)(2) permits class certification if “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[.]” This consideration is comprised of two requirements: the act
requirement and the injunction requirement.
The “act requirement properly focuses on the single question of whether the
defendant maintains a policy that affects a group of persons similar to those proposed
to constitute the class in the present case.” Newberg on Class Actions § 4:28 (5th ed.).
This requirement is clearly met on these facts, and Defendants offer no argument to

the contrary. Here, the entire basis of Plaintiffs’ claim is that Defendants’ policies
and/or practices fail to ensure the Pekin sidewalk system is safe and meaningfully
accessible to those with mobility disabilities. These policies and practices affect
Plaintiffs and all putative class members similarly in that each are allegedly denied
safe and meaningful access to the Pekin sidewalk system.
The injunction requirement encompasses three components: the requested

relief must be (1) final, (2) injunctive or declaratory, and (3) appropriate to the class
as a whole. Newberg on Class Actions § 4:29 (5th ed.). Plaintiffs easily satisfy the first
two components; they seek a permanent injunction enjoining Defendants from
continuing to discriminate on the basis of disability with regard to maintenance of
the Pekin sidewalk system and compelling them to eliminate existing points of ADA
noncompliance. (See docs. 40 at 28, 30–31; 35). The parties’ disagreement lies in the
third component, as Defendants argue the injunctive relief sought by Plaintiffs does
not actually benefit the class as a whole. (Doc. 32 at 17–18). However, as discussed
above, this argument is based on an erroneous construction of the injunctive relief
sought by Plaintiffs. Supra at 10–11. Contrary to Defendants’ argument, Plaintiffs

do not merely seek an injunction requiring Defendants to create a plan to remediate
instances of noncompliance; they seek citywide remediation—relief that will
undoubtedly benefit the class as a whole by making the Pekin sidewalk system safe
and meaningfully accessible to Plaintiffs and the putative class members. (Docs. 40
at 28, 30–31; 35).
“ ‘[C]ivil rights cases against parties charged with unlawful, class-based

discrimination are prime examples’ of Rule 23(b)(2) classes.” CTU, 797 F.3d at 441
(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997)). The Rule is
satisfied where the plaintiffs “seek the same declaratory and[/or] injunctive relief for
everyone.” Id. at 442. That is exactly what Plaintiffs have done here. Certification
under Rule 23(b)(2) is therefore appropriate.
2. Rule 23(b)(3)
Classes certified under Rule 23(b)(3) are those that seek monetary damages,

and putative class members have the right to opt out of a class certified under Rule
23(b)(3) if they so choose. Fed. R. Civ. P. 23(c)(2)(B). A class may be certified under
Rule 23(b)(3) if “the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual members, and
that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.”
Defendants raise the same faulty defense as to predominance and superiority
as they raise throughout—namely, that each individual Plaintiff’s and putative class
member’s claim requires an individualized assessment not only to calculate damages

but also to determine liability. (Doc. 32 at 18–22). Again, this is an incorrect framing
of this lawsuit.
“The predominance inquiry tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation.” Tyson Foods, Inc. v.
Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (internal quotation marks omitted). It
“builds on commonality; whereas Rule 23(a)(2) requires the existence of a common

question, Rule 23(b)(3) requires the common question(s) to ‘predominate’ over the
individual ones.” Howard v. Cook Cty. Sheriff's Off., 989 F.3d 587, 607 (7th Cir. 2021).
“An individual question is one where ‘members of a proposed class will need to
present evidence that varies from member to member,’ while a common question is
one where ‘the same evidence will suffice for each member to make a prima facie
showing [or] the issue is susceptible to generalized, class-wide proof.’ ” Tyson Foods,
136 S. Ct. at 1045 (quoting Newberg on Class Actions § 4:50). “To gauge whether a

class action would be more efficient than individual suits, ‘[t]he predominance inquiry
“asks whether the common, aggregation-enabling, issues in the case are more
prevalent or important than the non-common, aggregation-defeating, individual
issues.” ’ ” Howard, 989 F.3d at 607 (quoting Tyson Foods, 136 S. Ct. at 1045 (quoting
Newberg on Class Actions § 4:49)).
To establish a claim under the ADA or Rehabilitation Act, a claimant must
show “(1) that he is a qualified individual with a disability; (2) that he was denied the
benefits of the services, programs, or activities of a public entity . . . and (3) that the

denial or discrimination was by reason of his disability.” Lacy, 897 F.3d at 853
(internal quotation marks omitted); see also Hahn v. Walsh, 915 F. Supp. 2d 925, 956
(C.D. Ill. 2013) (citation omitted). Monetary damages available under the ADA and
Rehabilitation Act include those available in contract claims, e.g., compensatory
damages. See 1 Americans with Disab.: Pract. & Compliance Manual § 2:216.15 And
to recover compensatory damages, “the party requesting damages must show

causation, that is that the alleged [discrimination] is the cause of those damages, with
reasonable certainty.” TAS Distrib. Co. v. Cummins Engine Co., 491 F.3d 625, 633
(7th Cir. 2007) (citations omitted)).
But the inquiry does not stop there. To recover compensatory damages under
the Title II of the ADA—and the Rehabilitation Act, for that matter16—Plaintiffs and
the putative class members must prove their damages are the result of intentional

15 “Because Title II, Part A of the Americans with Disabilities Act (ADA)[, 42 U.S.C.
§ 12133,] incorporates the remedial provisions of § 505 of the Rehabilitation Act of
1973 (29 U.S.C. § 794a), which, in turn, incorporates the remedies, procedures and
rights of Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d to 2000d-7), [29
U.S.C. § 794a(a)(2),] the damages available under ADA Title II are the same as those
available under Title VI, that is, contract damages.” 1 Americans with Disab.: Pract.
& Compliance Manual § 2:216.
16 Kennington v. Carter, No. IP02-0648, 2004 WL 2137652, at *7 (S.D. Ind. June 28,
2004) (noting the Rehabilitation Act borrows remedies from Title VI of the Civil
Rights Act of 1964, 29 U.S.C. § 794a(2), and citing Alexander v. Sandoval, 532 U.S.
275, 280–81 (2001) for its holding that private individuals may not recover
compensatory damages under Title VI except for intentional discrimination).
discrimination. Lacy, 897 F.3d at 862. In the Seventh Circuit, a plaintiff establishes
“intentional discrimination . . . by showing deliberate indifference.” Id. at 863. This,
in turn, requires both “(1) knowledge that a harm to a federally protected right is

substantially likely, and (2) a failure to act upon that likelihood.” Id. (internal
quotation marks omitted).
While the calculation of compensatory damages can present inherently
individualized inquiries,17 the Court nevertheless finds common questions of law and
fact predominate in this case. Threshold questions of liability must be answered in
the affirmative before turning to any individualized questions as to damages; such

questions include whether Defendants’ policies and/or practices with regard to
maintenance of the Pekin sidewalk system are discriminatory against individuals
with mobility disabilities, whether such discrimination was intentional, and whether
there is a defense to the alleged discrimination. These questions can be resolved on a
class-wide basis, and their relative importance is such that they predominate over
the questions pertaining to individual damages calculations; consolidation of these
questions in a single lawsuit will achieve economies of time and expense and avoid

inconsistent rulings. In this way, this case is similar to CTU, 797 F.3d at 444 (finding
predominance when “the key question upon which all of the litigation rises or falls
can be answered for every plaintiff”).

17 Here, there appear to be a mix of damages at play; some Plaintiffs seek specific
compensatory damages for injuries sustained while encountering allegedly
noncompliant barriers or sections of the Pekin sidewalk system while others seek
generalized compensatory damages for the alleged discrimination. (See doc. 40 at 17–
23).
Defendants’ reliance on Hudson v. City of Chi., 242 F.R.D. 496 (N.D. Ill. 2007),
is misguided. In Hudson, the plaintiffs sought class certification in a case alleging,
inter alia, the City of Chicago enforced a policy of arresting panhandlers without

probable cause. Id. at 501. The court determined predominance was lacking in part
because the existence of probable cause to arrest a particular plaintiff would be a
complete defense to liability to that plaintiff. Id. at 505. Defendants argue a finding
that a particular barrier is ADA-compliant is a complete defense to liability to the
individual identifying that barrier, like the complete defense of probable cause in
Howard. However, that is not the case, as previously discussed. A finding that a

particular barrier is ADA-compliant does not preclude a finding that Defendants’
maintenance of the Pekin sidewalk system as a whole is discriminatory under the
ADA and Rehabilitation Act, meaning liability to the individual identifying that
barrier is not necessarily destroyed. And while it is true a finding of ADA compliance
as to a specific barrier may destroy the causation required to award compensatory
damages for injuries sustained due to that barrier, such a finding does not necessarily
preclude any compensatory damages for that Plaintiff; he or she may simply be

entitled to general damages rather than specific damages (see supra at n.17), provided
Plaintiffs carry their burdens of proof. In sum, the Court concludes common questions
of fact and law predominate over individual questions in this case.
Finally, a class action must also be “superior to other available methods for
fairly and efficiently adjudicating the controversy” to satisfy Rule 23(b)(3). In making
this determination, courts must consider:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3).
Defendants again argue a class action is not superior to individual litigation
because of the “need to conduct an individualized assessment of each putative class
member’s claim based on the barrier(s) allegedly encountered[.]” (Doc. 32 at 22).
However, the Court has rejected that line of reasoning throughout this Order.
Contrary to Defendants’ argument, threshold questions of liability can be answered
in one fell swoop. To the extent individualized assessments of particular barriers are
required in this case, such considerations go to the ultimate question of whether
maintenance of the Pekin sidewalk system as a whole is discriminatory or to
individual damage calculations—not to whether Defendants are liable to any

particular individual.
Having considered the requisite factors, the Court concludes a class action is
the superior method of litigation in this case. As previously stated and in
consideration of Rule 23(b)(3)(C), adjudicating Plaintiffs’ and the putative class
members’ claims in one lawsuit will achieve economies of time, expense, and effort
and will avoid inconsistent rulings on the common questions of law and fact presented
in this case. This factor weighs heavily in favor of class certification. See Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 815 n.5 (7th Cir. 2012) (“[T]he more
common issues predominate over individual issues, the more desirable a class action
lawsuit will be as a vehicle for adjudicating the plaintiffs’ claims.” (quoting Klay v.

Humana, Inc., 382 F.3d 1241, 1269 (11th Cir. 2004)). Certification under Rule
23(b)(3) is therefore also appropriate.
III. Redaction
As a housekeeping matter, Plaintiffs are directed to Federal Rule of Civil
Procedure 5.2 for redaction guidance. The pleadings and documents currently on file
redact more than is seemingly necessary, making it difficult to understand portions
of Plaintiffs’ filings. If Plaintiffs believe the redactions mandated by Rule 5.2 are

insufficient, they may seek leave to file under seal where necessary and appropriate.
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Certify Class (doc.
27) is GRANTED. The Court certifies the following Class:
All persons with mobility disabilities who were residents of the City of
Pekin from December 11, 2016, through December 11, 2018, and who
were denied meaningful access to public pedestrian rights-of-way in the
City during that timeframe.
The Class claims are that Defendants have violated Title II of the Americans with
Disabilities Act, 42 U.S.C. §§ 12132, and Section 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794(a), by denying Class Members the benefits of city services, programs,
or activities—namely, meaningful access to the Pekin sidewalk system and
pedestrian rights-of-way—on the basis of the Plaintiffs’ and Class Members’ mobility
disabilities.
Plaintiffs Patricia Berardi; Robert Chriswell; Alice Rose Mary Ortiz; Austin
Calloway; Ellen Sunderland; and Lisa Lynch, as the parent and next friend of M.L.,
a minor child, are hereby designated as Class Representatives. The following

attorneys are designated as Class Counsel: Andres J. Gallegos and Jennifer Lundy
Sender of Robbins, Salomon, & Patt LTD and Carl F. Reardon.
The Class is certified as a hybrid class under Federal Rules of Civil Procedure
23(b)(2) and 23(b)(3). Plaintiffs are directed to file within fourteen (14) days a
memorandum detailing their suggested procedures for notification and opting out;
Defendants may respond with seven (7) days. The Court will thereafter enter an

Order pursuant to Rule 23(c)(2).
Defendants’ Motion to Dismiss for Lack of Jurisdiction (doc. 41) is DENIED.

SO ORDERED.

Entered this 19th day of April 2021.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10136408. Public record. Not legal advice.