Thompson v. Allen

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

TREVA THOMPSON, et al., )

)

Plaintiffs, )

)

v. ) Case No. 2:16-cv-783-ECM

) [WO]

JOHN H. MERRILL, etc., et al., )

)

Defendants. )

MEMORANDUM OPINION and ORDER

Now pending before the Court is a motion for class certification (doc. 106), filed by

the Plaintiffs on May 10, 2018.

I. INTRODUCTION

The Plaintiffs filed a class action complaint for declaratory and injunctive relief on

September 26, 2016 (doc. 1), and a supplemental, amended complaint on March 1, 2018.

(Doc. 93). After rulings on motions to dismiss, the case is proceeding on several claims,

and the Plaintiffs have sought class certification as to some of those claims. Specifically,

Plaintiffs Darius Gamble (“Gamble”), Treva Thompson (“Thompson”), Timothy Lanier

(“Lanier”), and Pamela King (“King”) seek to represent a class pursuant to counts 1, 2, and

12 of the complaint as follows:

All persons otherwise eligible to register to vote in Alabama

who are now, or who may in the future be, denied the right to

vote pursuant to Section 177(b) because of conviction for a

felony “involving moral turpitude” as defined by section (c) of

Alabama Code Section 17-3-30.1.

(Doc. 106 at 7). Named Plaintiffs Gamble, Thompson, Lanier, and King also seek to

represent a subclass relevant to the Ex Post Facto claim in count 11 and the Due Process

claims in counts 16 and 17 as follows:

All persons otherwise eligible to register to vote in Alabama

who were convicted of a felony “involving moral turpitude” as

defined by section (c) of Alabama Code Section 17-3-30.1

before August 1, 2017 but are unable to register to vote

pursuant to Defendant Merrill’s retroactive implementation of

Alabama Code Section 17-3-30-1 to individuals with prior

convictions.

(Doc. 106 at 7). Named Plaintiffs Gamble and Thompson seek to represent a Legal

Financial Obligation (“LFO”) subclass to pursue the claim in count 13 as follows:

All persons otherwise eligible to register to vote in Alabama

who (1) are now, or who may in the future be, denied the right

to vote pursuant to Section 177(b) because of a conviction for

a felony “involving moral turpitude” as defined by section (c)

of Alabama Code Section 17-3-30.1; and (2) are unable to pay

their fines, fees, and/or restitution due to their socioeconomic

status; but (3) are otherwise eligible to apply for a CERV.

(Doc. 106 at 7-8). The Plaintiffs seek certification of the class and subclasses pursuant to

FED.R.CIV.P. 23(a) and (b)(2).

For reasons to be discussed, the motion for class certification is due to be DENIED.

II. STANDARD OF REVIEW

“The class action is ‘an exception to the usual rule that litigation is conducted by

and on behalf of the individual named parties only.’” Comcast Corp. v. Behrend, 133 S.

Ct. 1426, 1432 (2013); see also Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225,

1233 (11th Cir. 2016) (“All else being equal, the presumption is against class certification

because class actions are an exception to our constitutional tradition of individual

litigation.”). The burden is one of proof, not pleading. Brown, 817 F.3d at 1233. Although

this rigorous analysis frequently “entail[s] some overlap with the merits of the plaintiff’s

underlying claim,” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011), “the district

court can consider the merits ‘only’ to the extent ‘they are relevant to determining whether

the Rule 23 prerequisites for class certification are satisfied,’” Brown, 817 F.3d at 1234.

Class certification is governed by FED.R.CIV.P. 23. Under Rule 23(a), the party

seeking certification must demonstrate that the class is so numerous that joinder of all

members is impracticable; there are questions of law or fact common to the class; the

claims or defenses of the representative parties are typical of the claims or defenses of the

class; and the representative parties will fairly and adequately protect the interests of the

class.

The proposed class also must satisfy at least one of the three requirements listed in

Rule 23(b). In this case, the Plaintiffs rely on Rule 23(b)(2), which applies when “the party

opposing the class has acted or refused to act on grounds that apply generally to the class,

so that final injunctive relief or corresponding declaratory relief is appropriate respecting

the class as a whole. A “class representative must be part of the class and possess the same

interest and suffer the same injury as the class members.” Wal-Mart Stores, Inc., 564 U.S.

at 348–49 (quotation omitted).

III. DISCUSSION

As set forth above, to prevail on a motion seeking class certification, the Plaintiffs

must demonstrate that the putative class satisfies Rule 23(a)’s four prerequisites of

numerosity, commonality, typicality, and adequacy and also satisfies a subpart of Rule

23(b). Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1233 (11th Cir. 2016). The

Defendants do not contest numerosity. (Doc. 113 at 16). The Defendants do contest

commonality, but only as to count 12 (doc. 113 at 16) and typicality, but only as to counts

11, 16, and 17, (doc. 113 at 17). The Defendants also contest adequacy as to all counts.

The Defendants’ primary objections to certification, however, are based on ascertainability

and necessity within the context of Rule 23(b)(2). Therefore, the Court turns to those

arguments.

A. Ascertainability

The Defendants have argued that the proposed class and subclasses should not be

certified because the members of the class and subclasses are not identifiable. The

Plaintiffs respond that there is no ascertainability requirement when certification of a Rule

23(b)(2) class is sought, and even if there were, the classes are ascertainable.

In Braggs v. Dunn, 317 F.R.D. 634, 671 (M.D. Ala. 2016) (Thompson, J.), another

judge of this district reasoned that ascertainability is a requirement of a Rule 23(b)(3)

damages class, not a Rule 23(b)(2) injunctive relief class. The court examined the

reasoning in decisions from the Third Circuit, the First Circuit, and the Tenth Circuit, as

well as the Advisory Notes to Rule 23, and concluded that the class proposed for Rule

23(b)(2) certification did not have to be ascertainable. Id. at 673.

Some courts have noted that DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir.

1970),1 required ascertainability for a Rule 23(b)(2) certification, and have felt constrained

to follow, or distinguish, that precedent. See, e.g., O’Donnell v. Harris Cty., Tex., 2017

WL 1542457 (S.D. Tex. 2017). It appears to this Court, however, that binding authority

holds that ascertainability does not apply to a Rule (b)(2) class. In Carpenter v. Davis, 424

F.2d 257 (5th Cir. 1970), a case cited by the Plaintiffs in this case, the Fifth Circuit

explained that it is not necessary that members of the class be so clearly identified that any

member can be presently ascertained under Rule 23(b)(2), relying on the Advisory

Committee Notes to the rule, and citing to previous Fifth Circuit cases. Id. at 260.

In the Eleventh Circuit, if there is a conflict between two panel decisions, the earlier

panel decision controls. See In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (stating

“under this Court's prior-panel-precedent rule, ‘a prior panel's holding is binding on all

subsequent panels unless and until it is overruled or undermined to the point of abrogation

by the Supreme Court or by this court sitting en banc.’”). Carpenter, decided in April

1970, pre-dates DeBremaecker, decided in November 1970. Therefore, this Court finds

that there is no ascertainability requirement which poses a bar to certification of a Rule

23(b)(2) class in this case. See Braggs v. Dunn, 317 F.R.D. at 67.

B. Rule 23(b) and Necessity

The Plaintiffs request certification of the class and subclasses under Rule 23(b)(2).

Pursuant to that sub-part of Rule 23, a class action may be maintained if “the party opposing

1 Fifth Circuit decisions prior to October 1, 1981 are binding on this Court. Bonner v. City of

Prichard, 6661 F.2d 1206, 1207 (11th Cir. 1981).

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). The Plaintiffs contend that this case is the type of

civil rights litigation that the rule was designed to foster because there are no differences

among the class and subclass members, so injunctive and declaratory relief are appropriate

for the class as a whole.

The Defendants’ first objection to certification under Rule 23(b)(2) is that the

injunctive relief the Plaintiffs seek cannot be awarded against the Defendants who have

been named in this lawsuit. The Defendants then argue that although declaratory relief can

be awarded, that relief is available without the need for certification as a class.

The Defendants cite to M.R. v. Board of School Commissioners of Mobile County,

286 F.R.D. 510, 517 (S.D. Ala. 2012), and argue that there is a necessity requirement for a

class action which is not met in this case. The M.R. court reasoned that “the clear majority

rule is that ‘need’ is a proper consideration (even if not technically a “requirement” for

class certification), and that class certification may be properly denied where a class is

unnecessary to obtain the full measure of relief sought, such that it is not appropriate to

bog down the litigation with the expense, delay, complexity and burden of class

certification when there is no corresponding benefit to implementation of the resulting

judgment.” Id. at 519. The M.R. court acknowledged, however, that the “Eleventh Circuit

has never expressly stated whether it recognizes a necessity requirement in the Rule

23(b)(2) analysis.” Id. at 519.

The Plaintiffs contend that the more modern view of Rule 23(b)(2) is that it includes

no separate necessity argument, citing to non-binding cases and authorities which have

declined to adopt that requirement.

There appears to be a split among jurisdictions on the necessity issue. See Gayle v.

Warden Monmouth Cty. Corr. Inst., 838 F.3d 297, 310 (3rd Cir. 2016) (collecting cases).

Courts which have considered whether class certification is appropriate based on the

necessity of class action relief have reasoned that “there may be circumstances where class

certification is not appropriate because in view of the declaratory or injunctive relief

ordered on an individual basis, there would be no meaningful additional benefit to

prospective class members in ordering classwide relief.” Id.; see also M.R., 286 F.R.D. at

519. Courts have held that necessity cannot be considered a separate requirement, but is a

consideration within Rule 23(b)(2) of the appropriateness of the relief. Id.; Dionne v.

Bouley, 757 F.2d 1344, 1356 (1st Cir. 1985).

In the Third Circuit, where necessity is not a freestanding requirement, courts are

directed to rigorously analyze the appropriateness of Rule 23(b)(2) relief in terms of,

among other things, (1) the nature of the claims and of the parties; (2) the relief available

to an individual plaintiff and the extent to which that relief would benefit putative class

members; (3) the strength of the evidence that a defendant will abide by a court's ruling on

an individual plaintiff's claim with respect to others who are similarly situated; (4) the ease

with which putative class members would be able to vindicate their rights following a

defendant's noncompliance; and (5) whether there are other circumstances, such as

impending mootness of the individual claims, that nonetheless render classwide relief

“appropriate.” Warden Monmouth Cty. Corr. Inst., 838 F.3d at 312.

The Plaintiffs argue in this case that even if the Court were to consider necessity of

relief, the substantial risk of mootness requires class certification. The Plaintiffs do not

point to any reason for the need for certification other than potential mootness. In support

of their position, the Plaintiffs point out that some previously named Plaintiffs have already

been dismissed as parties because their claims have been mooted by receipt of a Certificate

of Eligibility to Register to Vote (CERV). (Doc. 114 at 15). The Plaintiffs also argue that

actions such as receipt of a pardon, receipt of a CERV, remission of outstanding fines, an

unexpected change in the ability to pay, or a move out of state may moot a Plaintiff’s claim.

This case does not involve a single Plaintiff, but instead involves multiple Plaintiffs,

four of whom have been designated as putative class representatives in the motion for class

certification. In evaluating the Plaintiffs’ mootness argument, the Court has examined the

claims of those named putative class representatives as alleged in the Plaintiffs’ pleadings.

The amended complaint alleges that Gamble meets the requirements for a CERV except

that he owes $63,073.30 and is not able to pay his fines at any time in the “foreseeable

future.” (Doc. 93 at 7). The Plaintiffs allege that Thompson was removed from the voter

registration list even though her crime of conviction does not appear as a disqualifying

felony, and that she meets the requirements of the CERV, except that she owes $40,000 in

legal financial obligations that she will not be able to pay at any time in the foreseeable

future. (Doc. 1 at 10). The complaint alleges that Pamela King is not eligible to apply to

restore her voting rights, but had been registered to vote in Montgomery County and wishes

to vote in future elections. Plaintiff Timothy Lanier is alleged to have been convicted of

several felonies which he is unsure are disqualifying. (Doc. 1 at 14).

Under the facts alleged, the Court cannot conclude that there is a basis for finding

that there is a substantial threat of mootness to any of the named Plaintiffs’ claims. See

Pederson v. Louisiana State Univ., 213 F.3d 858, 867 & n.8 (5th Cir. 2000) (stating “the

substantial risk of mootness here created a necessity for class certification in this case.”);

Ruiz v. Robinson, 2012 WL 3278644, at *3 (S.D. Fla. 2012) (examining evidence presented

and stating “[t]his Court does not find an imminent threat of mootness which would require

this case to be certified as a class action in order to protect putative class members'

interests.”). The financial obligations required for receiving a CERV are alleged in the

complaint and amended complaint as being too great to be paid off in the foreseeable future,

so there is no reason to conclude that those Plaintiffs will receive a CERV during the

pendency of this case. The case has been pending on motions to dismiss for several months

without any of the other actions identified by the Plaintiffs occurring, and there is no

evidence presented or allegations of fact from which to conclude that there is a substantial

threat that any Plaintiff will be pardoned or move from the state during the remainder of

these proceedings or any appeal.

In M.R., the court explained that the plaintiffs identified no other reasons that might

warrant class-based relief in this case and that “proceeding as a class action would yield

inefficiencies and complexities that would needlessly burden litigant and judicial resources

alike, all for the sake of obtaining a class injunction that would be identical in scope,

breadth and effect to an individual injunction awarded in favor of the individual plaintiffs

alone.” Id. at 521. This Court is persuaded that the same reasoning applies in this particular

case. To the extent that the Court has facts before it which are pertinent to the factors

considered in the evaluation of appropriateness, see Warden Monmouth Cty. Corr. Inst.,

838 F.3d at 312, this Court concludes that those factors weigh in favor of a finding that

injunctive and/or declaratory relief has not been shown by the Plaintiffs to be appropriate

relief respecting the class as a whole under Rule 23(b)(2).

V. CONCLUSION

For the reasons discussed, it is hereby ORDERED as follows:

1. The Motion for Class Certification (doc. 106) is DENIED.

2. The Motion for Status Conference (doc. 165) is DENIED as moot, the Court

having ruled on the pending motions.

Done this 24th day of January, 2020.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE