“Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.”
How later courts described this case
- “Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.”
- holding that class representatives who allege different types of disparate 19 treatment claims to class are atypical
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ALDARESS CARTER, individually and on
behalf of a class of similarly situated persons,
Plaintiff,
v. Case No. 2:15-cev-555-RCL
THE CITY OF MONTGOMERY, et al.,
Defendants.
MEMORANDUM OPINION
Between 2009-2014, the Montgomery Municipal Court routinely jailed traffic offenders
for failing to pay fines without inquiring into their ability to pay. In carrying out that system, the
Municipal Court deprived offenders of their due process and equal protection rights not to be
incarcerated for their poverty. See Bearden v. Georgia, 461 U.S. 660, 672-73 (1983). During that
period, the City of Montgomery contracted on behalf of itself and the Municipal Court with
Judicial Correction Services, Inc., (“JCS”) to supervise Municipal Court-ordered misdemeanor
probation. The City also contracted with public defender Branch D. Kloess to serve as a public
defender in the Municipal Court.
Before the Court is plaintiff Aldaress Carter’s motion for class certification. ECF No. 306.
Mr. Carter seeks to certify four classes in his action against the defendants, the City, JCS, and Mr.
Kloess.
Today, the Court resolved a motion for class certification in a parallel case, See
McCullough y. City of Montgomery, No. 2:15-cv-463 (M.D. Ala. May 21, 2021) (McCullough
slip op.”). The disposition of the motion in McCullough, which the McCullough plaintiffs’ briefied
jointly with Mr. Carter, largely resolves the motion here as well. In this opinion, therefore, the
Court relies on its analysis in McCullough and reserves in-depth analysis for the issues unique to
Mr. Carter’s motion.
Upon consideration of the motions; briefs;! evidentiary submissions; all other papers of
record; and the arguments made, testimony offered, and evidence received over the course of a
ten-hour hearing, the Court will DENY the plaintiffs’ motion for class certification.
I. BACKGROUND
A. Factual Background?
For a full factual background to this case, see McCullough slip. op. 3-11. The following
facts are uniquely relevant here:
1. Public Defenders
Alabama requires municipalities that operate municipal courts to
provide counsel to indigent defendants. Ala. Code § 12-14-9. The
City purported to meet that obligation through a pair of contracts —
one with Mr. Kloess and one with a small Montgomery law firm.
See Second Am. Compl., Ex. 2 (ECF No. 145-2); Kloess Dep. 67:9—
14 (ECF No. 265-1). Each public defender worked in the Municipal
Court every other day, Kloess Dep. 79:23—-80:4, representing every
defendant who had been jailed prior to his court appearance, see id.
at 104:16-19. The City paid the defenders an hourly rate. /c. at 69:4—
' The plaintiffs’ brief in support of class certification (“Pls.’ Br.”) (ECF No. 307), the City’s brief in opposition to
class certification (“City’s Opp’n”) (ECF No. 320), JCS’s brief in opposition to class certification (“JCS’s Opp’n”)
(ECF No. 322), Mr. Kloess’s brief in opposition to class certification (““Kloess Opp’n’’) (ECF No. 325), the plaintiffs’
reply brief (‘“Pls.’ Reply”) (ECF No. 348), the plaintiffs’ supplemental brief (“Pls.” Supp. Br.”) (ECF No. 388), the
defendants’ joint supplemental brief (“Defs.’ Supp. Br.) (ECF No. 387), the plaintiffs’ supplemental reply □□□□□□□□
Supp. Reply”) (ECF No. 392), the defendants’ joint supplemental reply (“Defs.’ Supp. Reply”) (ECF No. 393), the
plaintiffs’ notice of additional authority (“Pls.’ Notice’) (ECF No. 395), and the defendants’ joint response to that
notice (“Defs. Resp, Notice”) (ECF No. 396) constitute the extensive briefing on class certification.
In describing the background to this case, the Court quotes extensively from its summary judgment opinion. See
Carter vy. City of Montgomery, 473 F. Supp. 3d 1273 (M.D. Ala. 2020). For ease of reference, in this section the Court
uses the following short forms to refer to the summary judgment record: Citations to “City Evid.” refer to Evid.
Submissions Supp. City’s Mot. Summ. J. (ECF No. 253). Citations to “Carter Evid.” refer to Evid. Submissions Supp.
Opp’n to Mots. Summ. J. (ECF No. 278). Citations to “Carter MSJ Evid.” refer to Evid. Submissions Supp. Pl,’s
Partial Mots. Summ. J. (ECF No. 72). The Court cites to depositions and declarations without reference to the
evidentiary compilation in which they appear; it references docket only in the first citation to a deposition or
declaration.
6. It received invoices from the defenders every two weeks, listing
the number of hours the defenders worked but not the number of
clients or cases they handled. /d. at 72:19-23.
The defenders handled an enormous caseload. Over the course of
2012, Mr. Kloess handled 16,436 cases over 127 days in court.
Parrish Decl. at 14 (ECF No. 278-1). Many defendants appeared
for multiple cases, so Mr. Kloess represented fewer individuals than
cases. Id.
Although many of Mr. Kloess’s clients were poor, he does not
provide evidence that he routinely asked the Municipal Court to
consider their inability to pay fees. Mr. Kloess testified that he has
requested indigency determinations for some clients, but he was
unable to name a single client for whom he had requested such a
hearing. Kloess Dep. 163:1—-11. He does not remember ever filing a
written motion for an indigency hearing. /d. at 171:18-21.
Carter v. City of Montgomery, 473 F. Supp. 3d 1273, 1290 (M.D. Ala. 2020).
2. Mr. Carter
In May 2011, a Montgomery police officer arrested Mr. Carter on
outstanding warrants for failure to appear in the Municipal Court on
several traffic tickets. 2018 Carter Dep. 68:7—-10 [(ECF No. 163-
14)], Mr. Carter spent a night in jail and then appeared in court. Jd.
at 70:21-22. He could not afford to pay his fines, so the judge
offered him a choice between further incarceration and JCS
probation. /d. at 72:1-2. Mr. Carter elected to go on probation with
JCS. Jd. at 73:14-15, The probation order required Mr. Carter to pay
$140 per month. Carter MSJ Evid., Ex. 17 (ECF No. 73-17). Mr.
Carter made his first monthly payment in full but was never again
able to pay the full amount due in any month. 2018 Carter Dep.
118:9-12. Over nineteen months on probation with JCS, Mr. Carter
made a total of $833 in payments. Pl.’s Reply to CHC’s Opp’n to
Mot. Class Certification, Ex. 3 at 10-11 (ECF No. 174-3). JCS
allocated $460 of those payments to fines and kept the rest as
probation fees. /d. During those nineteen months Mr. Carter
attended sixty-six JCS appointments and missed fifty-seven. /d. at
8—10. Eventually his payments slowed and, in November 2012, he
missed several meetings and did not make a payment. See id. at 8,
10.
In December 2012, JCS petitioned the Municipal Court to revoke
Mr. Carter’s probation for failure to make payments and attend
meetings. Carter MSJ Evid., Ex. 10. JCS claims that it gave Mr.
Carter notice of the revocation hearing, see Pl.’s Reply to CHC’s
Opp’n to Mot. Class Certification, Ex. 3 at 2 (ECF No. 174-3); Mr.
Carter claims he never received the notice, 2018 Carter Dep.
125:16-19. Regardless, Mr. Carter did not attend his revocation
hearing. City Evid., Ex. 23. He claims that he believed he had
completed his probation because a JCS employee told him “You’re
done Mr. Carter” when he came in to make a payment in late
December 2012 or January 2013. See 2018 Carter Dep. 124:2-13.
Because Mr. Carter did not appear, the Municipal Court revoked his
probation and issued warrants for his arrest. City Evid., Ex. 23.
In January 2014, Mr. Carter was arrested during a traffic stop on ten
warrants for failing to appear in court. 2018 Carter Dep. 126:4-6.
Seven of the warrants were tied to tickets for which Mr. Carter had
been sentenced to JCS probation. Nixon Decl., Ex 5 at 205 [(ECF
No. 253-30]. Mr. Carter spent the weekend in jail and then appeared
before Judge Hayes. See id. at 205-206.
At the revocation hearing, Mr. Kloess nominally represented Mr.
Carter. On the day of the hearing, Mr. Kloess represented sixty-
seven individuals over three and one-half hours. Kloess Dep.
133:16-18; Parrish Decl. Ex. C at 9 (ECF No. 278-4). And Mr.
Kloess was not in the courtroom at all for Mr. Carter’s hearing.
Kloess Dep. 132:2-11. Mr. Carter alleges, however, that Mr. Kloess
consulted with him briefly and asked him if he would “pay or stay.”
2018 Carter Dep. 136:4:15. Mr. Carter told Mr. Kloess that he would
pay. /d. at 136:17.
But Mr. Carter could not pay his fines at the revocation hearing. His
girlfriend brought $120 — all but $20 of Mr. Carter’s liquid assets
— to the Municipal Court. /d. at 137:11-22; Carter Dep. 352:20-22
(Nov. 7, 2019) (ECF No. 262-3) (“2019 Carter Dep.”). Judge Hayes
rejected that proffered payment and sent Mr. Carter back to jail. /d.
at 138:1-15. Judge Hayes never asked Mr. Carter why he had not
paid his fines. 2019 Carter Dep. 373:3-7. If he had inquired, he
would have learned that Mr. Carter could not afford to pay much:
when he appeared before Judge Hayes, he netted $300 per week
from his job. 2018 Carter Dep. 221:10—11.
Municipal Court paperwork indicates that Judge Hayes commuted
to jail time the fines from tickets underlying the seven JCS warrants;
he gave Mr. Carter additional! time to pay the tickets underlying the
other three warrants. Nixon Decl., Ex 5 at 204-05. Four days after
his arrest (and one day after his commutation), Mr. Carter was
released from jail when his mother borrowed enough money to pay
his remaining fines. /d. at 206; 2018 Carter Dep. 138:22-23.
Id. at 1290-92
B. Procedural History
1. Early Proceedings
Mr. Carter’s operative complaint alleges causes of action under § 1983 and state law.
Second Am, Compl. (ECF No. 145). Through a motion for partial summary judgment and a motion
for judgment on the pleadings, the Court narrowed the claims in Mr. Carter’s case. See Order 15
(March. 29, 2019) (ECF No. 203) (dismissing claims for declaratory and injunctive relief); Order
(March 29, 2019) (ECF No. 207) (dismissing claims against City for money had and received and
false imprisonment). .
Therefore, prior to the summary judgment proceedings, claims remained in Mr. Carter’s
complaint for violations of the Due Process and Equal Protection Clauses, the Fourth, Sixth, and
Eighth Amendments, and his Bearden rights, and for false imprisonment and money had and
received. See Carter, 473 F. Supp. 3d at 1293.
2. Summary Judgment
The defendants moved for summary judgment. The Court granted in part and denied in part
the City’s and JCS’s motions for summary judgment, granted CHC’s motion for summary
judgment, and denied Mr. Kloess’s motion for summary judgment. /d. at 1309-10.
Accordingly, after summary judgment, only three claims remain live in this case:
e A claim against JCS, the City, and Mr. Kloess under § 1983 for violation of Mr.
Carter’s Bearden rights;
e Aclaim against the City and Mr. Kloess under § 1983 for violation of Mr. Carter’s
Sixth Amendment right to counsel; and
e Aclaim against JCS for false imprisonment.
3. Class Certification Proceedings?
After summary judgment, the Court set a briefing schedule for class certification. Order
(Aug. 14, 2020) (ECF No, 275). When Mr. Carter filed his motion, he also filed a declaration from
John Rubens, whom he hired to help produce information about potential class members for his
attorneys to review. Rubens Decl. (ECF No. 308-1)
The Court conducted a hearing on the motion for class certification-—and on JCS’s motion
to reconsider (ECF Nos. 332)—and received evidence. See Hr’g Tr. (Dec. 16, 2020) (ECF No.
389); Hr’g Tr: (Dee. 17, 2020) (ECF No, 390),
Following the hearing, the Court denied the plaintiffs’ motion for class certification,
holding that the proposed classes could not be ascertained. Mem. Op. 2 (Dec. 23, 2020) (ECF No.
369). It also denied JCS’s motion to reconsider. /d. Finally, the Court held that consolidation of
this case with McCullough was not warranted. /d
4, Interlocutory Appeal and Remand
Mr. Carter petitioned for review of the class certification decision under Rule 23(f). He
argued that the Court erroneously held “JCS probationers who served less [than one day of| jail
time before being released dtiould have been excluded from the class[es| because they were
‘uninjured,’” Notice of 23(f) Appeal 22-23 (ECF No. 373), and that the Court improperly
concluded that the classes were not ascertainable. Jd. at 23-34.
After Mr. Carter filed his petition, the Eleventh Circuit clarified the class ascertainability
standard in Cherry v. Dometic Corp., 986 F.3d 1296 (1 Ith Cir. 2021). The next day, it granted the
petition for interlocutory review, vacated the Court’s opinion on class certification, and remanded
* The Court previously denied a motion for class certification without prejudice, determining that it should address
class certification after summary judgment. Order (Mar. 29, 2019) (ECF No. 204).
the case to the Court for reconsideration in light of Cherry. Order, Carter v. City of Montgomery,
No. 21-90002-H (11th Cir. Feb. 3, 2021).
The Court, accordingly, ordered supplemental briefing on how Cherry affects class
certification. Order | (Feb. 3, 2021) (ECF No. 387), It also reaffirmed its order and memorandum
Opinion as to the motion for reconsideration. Jd. at 1-2.
Il. LEGAL STANDARDS
Class actions operate as an “an exception to the usual rule that litigation is conducted by
and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700-01
(1979). The party seeking class certification bears the burden of proving that class certification is
appropriate after rigorous analysis. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir.
2009). Unless the proponents of a class action can show that all of Rule 23’s requirements have
been met, the Court must presume that the case should not be certified as a class action. Brown vy.
Electrolux Home Prod., Inc., 817 F.3d 1225, 1233 (11th Cir. 2016); Fed. R. Civ. P. 23.
Class certification often requires some examination of the merits of the underlying claims
and defenses. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-52 (2011). While that
examination should go only as far as required to decide whether the proponents of certification
have met Rule 23’s requirements, Babineau v. Fed. Express Corp., 576 F.3d 1183, 1190 (1 1th Cir.
2009), at the very least the proponents must produce enough evidence for a reasonable jury to
make findings that would sustain their theory of the case, see T7yson Foods, Inc. v. Bouaphakeo,
577 U.S. 442, 459 (2016) (discussing jury standard); Comcast Corp. v. Behrend, 569 U.S. 27, 35
(2013) (requiring consistency between theory of liability and evidence); see also Olean Wholesale
Grocery Coop., Inc. v. Bumble Bee Foods LLC, 993 F.3d 774, 785-86 (9th Cir. 2021).
.
A. Threshold Issues
Before a class can be certified, it must be “adequately defined and clearly ascertainable.”
Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012) (quotation marks omitted). “A
class 1s inadequately defined if it is defined through vague or subjective criteria. And without an
adequate definition for a proposed class, a district court will be unable to ascertain who belongs in
it.” Cherry, 986 F.3d at 1302. □
“A class is ‘clearly ascertainable’ if [a court is| certain that its membership is ‘capable of
being’ determined. But membership can be capable of determination without being capable of
convenient determination. Adinataristratiive feasibility is not an inherent aspect of ascertainability.”
at 1303. Whether a class would be difficult to ascertain is relevant to whether a class action is
a superior means of dispute resolution, but difficulty ascertaining class membership does not
preclude certification. /d. at 1303-04.
Finally, as in all cases, the plaintiffs in a class action—class representatives and class
members alike—must establish standing. Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1274 (11th
Cir. 2019). Thus, they must show (1) an injury-in-fact, (2) causation, and (3) redressability. /c. at
1273.
B. Rule 23(a)
Before a class may be certified, the Court must find the four Rule 23(a) requirements are
met: .
(1) the class is so numerous that joinder of all members its
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).
The first factor, numerosity, requires the Court to determine whether joinder of all class
members 1s a realistic alternative to a class action. While the proponents of class certification need
not meet any specific numerical threshold to establish numerosity, a class of more than forty
individuals is generally too large for joinder to be practicable. See Vega, 564 F.3d at 1266-67. The
Court need not determine the precise size of the class to make a numerosity finding. /d. at 1267.
The second factor, commonality, requires the Court to determine whether at least one
question of law or one question of fact is capable of classwide resolution. See Dukes, 564 U.S. at
350. The common question must be central to the litigation: resolving the question should
determine the validity of the claims. See id. The existence of factual differences does not prevent
a finding of commonality when common legal questions are central to the case. See 1 William B.
Rubenstein, Newberg on Class Actions § 3:21 nn.1—2 (Sth ed. 2011-2020) (collecting cases).
The third factor, typicality, requires the Court to determine whether the proposed class
representatives are aligned with the class. Prado-Steiman ex rel. Prado vy. Bush, 221 F.3d 1266,
1279 (11th Cir. 2000). Representatives’ claims must “share the same essential characteristics as
the claims of the class at large.” /d. at 1279 n.14 (quotation marks and emphasis omitted). But
factual differences between claims will not defeat a typicality finding when the claims of a
representative and the class members arise from a common practice and under a common legal
theory. Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1351 (11th Cir. 2001); see also Prado,
221 F.3d at 1279 n.14. Nor will vetatlone in the amount of damages between the representatives
and other class members. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir.
1984). Finally, while defenses unique to a class representative may establish atypicality, those
defenses must be a major focus of the litigation. See, ¢e.g., Beck v. Maximus, Inc., 457 F.3d 291,
300 (3d Cir, 2006) (collecting cases); see also 1 Newberg on Class Actions, supra § 3:45.
The fourth factor, adequacy, requires the Court to determine whether the proposed class
representatives have any fundamental conflicts of interest with the class and whether they are
qualified to serve as representatives. Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189
(11th Cir. 2003). A representative has a fundamental conflict of interest with the class, for example,
when some members of the class benefitted from the challenged conduct while others were harmed
or when he has fundamentally different economic incentives from other members. See id. at 1189--
90. And a representative is qualified if he has at least a little knowledge about the case. See
Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 366 (1966). Additionally, the Court must determine
that the proposed class counsel have the requisite experience and commitment to serve the class.
See Kirkpatrick vy. J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987); see also Fed. R. Civ.
P, 23(g).
C. Rule 23(b)(3)
On top of meeting the.requirements of Rule 23(a), the proponents of class certification
must meet one of the provisions of Rule 23(b). Here, the relevant part is Rule 23(b)(3), which
requires that:
[T]he [C]ourt find[ ] 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. The matters pertinent to these findings include:
(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;
10
(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).
The predominance inquiry requires the Court to determine whether the proposed class is
“sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 623 (1997). In making that determination, the Court first characterizes the elements
of the claims and defenses as either individual or common questions. 2 Newberg on Class Actions,
supra, § 4.50. “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.’” 7yson Foods, 577 U.S. at 453 (quoting Newberg on
Class Actions); see Kerr v. City of W. Palm Beach, 875 F.2d 1546, 1558 (11th Cir. 1989). After
characterizing the issues, the Court must weigh them to see which predominate. This weighing is
not a counting exercise. Instead, it is a qualitative and “pragmatic assessment” of whether there
are enough common issues to make classwide resolution of those issues appropriate. See Cordoba,
942 F.3d at 1274. Indeed, a case may present many snctietlux! questions and still qualify for
certification. See Klay v. Humana, Inc., 382 F.3d 1241, 1254 (11th Cir. 2004), But “[w]here, after
adjudication of the classwide issues, plaintiffs must still introduce a great deal of individualized
proof or argue a number of individualized legal! points to establish most or all of the elements of
their individual claims, such claims are not suitable for class certification under Rule 23(b)(3).”
/d. at 1255. Finally, individualized damages are less of a barrier to finding that common issues
predominate than is individualized liability. Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248,
1261 (11th Cir. 2003), aff'd on other grounds, 545 U.S. 546 (2005).
11
The superiority inquiry requires the Court to decide whether a class action is the best means
to resolve the dispute between the parties. The rule provides four non-exclusive criteria to consider
in making that decision. See Amchem, 521 U.S. at 616. First, the Court must consider whether
class members should individually control their claims. Members have 4 stronger interest in
controlling their claims when they are entitled to larger individual damages. /d. at 617. Second,
the Court must consider whether other litigation is pending on the same controversy. If enough
actions are pending, then a class action may not be superior to individual cases. 2 Newberg on
Class Actions, supra § 4.70. Third, the Court must consider whether concentration of litigation in
the forum is appropriate. When a court has already resolved several preliminary issues,
concentrating the case before that court is generally appropriate. Klay, 382 F.3d at 1271. And
fourth, the Court must consider whether a class action would pose greater manageability issues
than other methods of resolving the dispute. When common issues predominate, a single case is
usually easier to manage than multiple individual suits. Williams vy. Mohawk Indus., Inc., 568 F.3d
1350, 1358 (11th Cir. 2009). Manageability “will rarely, if ever, be in itself sufficient to prevent
certification of a class.” Klay, 382 F.3d at 1272.
D. Rule 23(g)
Besides considering the adequacy of class counsel under Rule 23(a)(4), before appointing
class counsel the Court must also consider the following:
(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.
12
Fed. R. Civ. P. 23(g)(1)(A). The Court may also “consider any other matter pertinent to counsel’s
ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B).
IU. ANALYSIS
Mr. Carter moved to certify four classes: (1) a City class, (2) a JCS Bearden subclass, (3)
a Kloess subclass, and (4) a false-imprisonment class.
With respect to all the proposed classes, the proposed class counsel have adequate
experience’ and capacity to serve in that role and are able to fairly and adequately represent the
interests of the class based on the factors set forth in Fed. R. Civ. P. 23(g)(1)(A) and other pertinent
material of record.
The Court will address the other class-certification requirements for each class in turn.
A. City Class
Mr. Carter seeks to certify a City class “consisting of all individuals the Montgomery
Municipal Court placed on JCS-supervised probation, who (1) had debt commuted to jail time in
a JCS-supervised case after JCS petitioned the court to revoke probation; and (2) served any of
that jail time on or after August 3, 2013.” Mot. Class Certification 1. That class definition matches
the Bearden class definition in McCullough word-for-word, except that the City class period starts
thirty-three days later. Compare id., with McCullough Mot. Class Certification 1 (McCullough
ECF No, 281). .
‘The Evans Law Firm, P.C. and its senior attorney G. Danie! Evans represent that that they have litigated many class
actions as class counsel. Evans Decl. (ECF No, 308-10); see a/so Parrish Decl. (ECF No. 308-11), Public Justice and
its senior attorney Leslie A. Bailey represent that they have litigated many cases as class counsel, Bailey Decl. 4 □□
7, 10-12 (ECF No. 308-12). Terrell Marshall Law Group PLLC and its senior attorney Toby Marshall represents that
that they have litigated many class actions as class counsel. Marshall Dec]. 3-7 (ECF No. 308-13).
13
Because the classes are essentially identical, the Court’s analysis denying certification of
the Bearden class in McCullough largely suffices to deny certification of the City class here. See
McCullough slip op. 20-37,
One issue, however, merit independent discussion. As it did with the proposed class
representatives in McCullough, the City objects to Mr. Carter as an atypical class representative.
In essence, the City argues that Mr. Carter’s case is factually distinguishable from the other class
members. But factual differences between class members and class representatives do not render
the representatives atypical. See Piazza, 273 F.3d at 1351. The class members and Mr. Carter all
allege the same ‘ype of harm, which is all that Rule 23 requires to show typicality.
For the reasons stated here and in the Court’s analysis denying certification of the Bearden
class in McCullough, the Court, with respect to the City class, finds that:
e The proposed class is ascertainable;
e The proposed class is too numerous to make joinder of class members practicable;
e There are issues of law and fact common to the class;
© Mr. Carter presents claims typical of the members of the class;
e Mr. Carter would be an adequate class representative;
e The Evans Law Firm, Public Justice, and Terrell Marshall Law Group PLLC would
be adequate class counsel;
e Common questions do not predominate over individual questions;
e Aclass action is not superior to other forms of dispute resolution; and,
e Upon consideration of the factors enumerated in Rule 23(g)(1)(A) and other
pertinent material of record, the Evans Law Firm, Public Justice, and Terrell
14
Marshall Law Group PLLC are able to fairly and adequately represent the interests
of the class.
See Fed. R. Civ. P. 23(a), (b)(3), (g). Therefore, because Mr. Carter did not meet his burden to
show that common issues predominate over individual issues or that a class action would be the
superior method of dispute resolution, certification of the City class is not warranted.
B. JCS Bearden Subclass
Mr. Carter seeks to certify a JCS Bearden subclass “consisting of all individuals in the City
Class who served any of their post-commutation jail time on or after September 11, 2013.’ Mot.
Class Certification 1. That class definition matches the Bearden class definition in McCullough
word-for-word, except that the City class period starts seventy-two days later. Compare id., with
McCullough Mot. Class Certification 1 (McCullough ECF No. 281).
Because the classes are essentially identical, the Court’s analysis denying certification of
the Bearden class in McCullough and its analysis denying certification of the City class here suffice
to deny certification of the JCS Bearden subclass. See McCullough slip op. 20-37; supra Part
HLA.
For the reasons stated here and in the Court’s analysis denying certification of the Bearden
class in McCullough, the Court, with respect to the JCS Bearden subclass, finds that:
e The proposed class is ascertainable;
e The proposed class is too numerous to make joinder of class members practicable;
e There are issues of law and fact common to the class;
e Mr. Carter presents claims typical of the members of the class;
e Mr. Carter would be an adequate class representative;
15
e The Evans Law Firm, Public Justice, and Terrell Marshall Law Group PLLC would
be adequate class counsel;
e Common questions do not predominate over individual questions;
e Aclass action is not superior to other forms of dispute resolution; and,
e Upon consideration of the factors enumerated in Rule 23(g)(1)(A) and other
pertinent material of record, the Evans Law Firm, Public Justice, and Terrell
Marshall Law Group PLLC are able to fairly and adequately represent the interests
of the class.
See Fed. R. Civ. P. 23(a), (b)(3), (g). Therefore, because Mr. Carter did not meet his burden to
show that common issues predominate over individual issues or that a class action would be the
superior method of dispute resolution, certification of the JCS Bearden subclass is not warranted.
C. Kloess Subclass
Mr. Carter seeks to certify a Kloess subclass “consisting of all individuals in the City Class
whose debt was commuted to jail time on a date when Branch Kloess was the public defender
assigned to the jail docket or for whom Benchmark court records or other documents indicate the
individuals were represented by Branch Kloess for the commutation.” Mot. Class Certification 2—
3. .
In the Eleventh Circuit, the failure of the overarching City class does not by itself prevent
certification of the Kloess subclass. See Klay, 382 F.3d at 1261-62; Rubenstein, supra § 7.29 n.1.
But as no overarching class can be certified, the Kloess subclass must independently satisfy the
Rule 23 requirements.
16
1. Threshold [ssues
(i) Ascertainability
The Court must first determine whether the Bearden class is “adequately defined and
clearly ascertainable.” Little, 691 F.3d at 1304 (11th Cir. 2012). That is, the Court must assure
itself that the class is not “defined through vague or subjective criteria” and that the class
membership is “‘capable of being’ determined.” Cherry, 986 F.3d at 1302-03.
Here, the Kloess subclass criteria are not vague and are facially objective. Each criterion
asks whether certain historical facts are true of an individual: (1) whether he had debt commuted
to jail time and (2) whether (a) Mr. Kloess was the public defender assigned to the jail docket that
day or (b) records indicate that Mr. Kloess represented the individual in commutation proceedings.
See Mot. Class Certification 1-2. While a jury may ultimately need to establish the relevant
historical facts, class membership can be determined.
Therefore, the proposed Kloess subclass meets the Cherry ascertainability standard.
(ii) Improper Pleading
Mr. Kloess argues that Mr. Carter did not properly plead class allegations against him. That
argument presents a close question. On one hand, Mr. Carter adequately pleaded Sixth Amendment
and Bearden claims against Mr. Kloess. See Carter, 473 F. Supp. 3d at 1300. And Mr, Carter
alleged that Mr. Kloess engaged in a systemic practice of not asserting his clients’ Bearden rights.
2d Am. Compl. §§ 7, 144. On the other hand, the Court denied Mr. Carter leave to amend his
complaint to expressly allege class claims against Mr. Kloess. See Mem. Op. 3-7 (Dec. 20, 2019)
(ECF No. 246); Order (Dec. 20, 2019) (ECF No. 247); see also Pls. Mot. for Leave to File 3d Am.
Compl. (ECF No. 231).
17
Ultimately, the Court does not need to resolve that question, because it cannot certify a
Kloess subclass in any case. Therefore, it reaches no decision on whether Mr. Carter’s complaint
properly pleaded class claims against Mr. Kloess,
2. Rule 23(a)
(i) Numerosity
At least fifty members constitute the Kloess subclass.° Rubens Decl. 29. Joining that fifty
plaintiffs borders on practicability. But a fact-intensive trial—like this cause of action would
demand—would be unmanageable with fifty plaintiffs. See Vega, 564 F.3d at 1266-67. Therefore,
the class is too numerous to be practicably joined.
(ii) Commonality
Whether and when the City knew about the actions of Mr. Kloess is a question common to
every Sixth Amendment claim against the City. The question is all-or-nothing. If the City lacked
knowledge, none of the claims can proceed. If the City had knowledge, all the claims surmount a
key hurdle. That one issue satisfies commonality for the Kloess subclass’s claims against the City.
See Dukes, 564 U.S. at 350.
Whether Mr. Kloess is a state actor for purposes of § 1983 is a question common to every
Sixth Amendment claim against Mr. Kloess. That question too is all-or-nothing. If Mr. Kloess was
not a state actor, none of the claims can proceed. If he was, all the claims surmount a key hurdle.
That one issue satisfies commonality for the Kloess subclass’s claims against Mr. Kloess. See id.
* Mr. Kloess contests the accuracy of those records. Kloess Br. 26. At minimum, however, Mr. Carter has presented
cnough evidence to present a contested question of fact on the number of individuals who meet the class criteria. See
Tyson Foods, 577 U.S. at 459.
18
(iii) Typicality
Typicality requires that the class representative and class members proceed under a
common legal theory. Piazza, 273 F.3d at 1351 (11th Cir. 2001). Here, Mr. Carter and the class
members argue that Mr. Kloess violated their Sixth Amendment right to counsel in different ways:
the class asserts ineffective assistance of counsel, while Mr. Carter asserts total deprivation of
counsel. For that reason, Mr. Carter’s claims are not typical of the class.
Mr. Kloess was absent from the courtroom during Mr. Carter’s commutation hearing.
Kloess Dep. 132:2-11. His absence totally denied Mr. Carter counsel at a critical stage of a
criminal proceeding. See Golden v. Newsome, 755 F.2d 1478, 1483 (11th Cir, 1985) (citing United
States v. Cronic, 466 U.S. 648, 659 (1984)). That failure was presumptively prejudicial. See id.;
see also Strickland v. Washington, 466 U.S. 668, 692 (1984) (“Actual or constructive denial of the
assistance of counsel altogether is legally presumed to result in prejudice.”),
In contrast, the record does not contain evidence that Mr. Kloess was out of the courtroom
for the hearings of all the other class members. Their claims must rest on allegations that Mr.
Kloess systemically failed to seek determinations of indigency or that he was too overwhelmed to
provide constitutionally adequate representation. See P!.’s Br. 62-63.
The class and Mr. Carter thus assert fundamentally different injuries. The alleged injury to
the class stems from Mr. Kloess’s failure to provide constitutionally adequate representation while
he was in the courtroom with his clients; the injury to Mr. Carter stems from Mr. Kloess’s failure
to attend Mr. Carter’s commutation hearing. The class claims are not fairly encompassed within
Mr. Carter’s claim. See, e.g., Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566,
1569-70 (11th Cir. 1992) (holding that class representatives who allege different types of disparate
19
treatment claims to class are atypical). That Mr. Carter and the other class members would need
to introduce substantially different evidence to support their claims only underscores that point.
Unlike mere factual differences surrounding an injury, differences in types of injury or
legal theories prevent courts from finding that a named plaintiff 1s typical. Because Mr. Carter
suffered a different injury fom the rest of the class, he is not a typical class representative. See
Blum v. Yaretsky, 457 U.S. 991, 999 (1982) (“The complaining party must also show that he is
within the class of persons who will be concretely affected. Nor does a plaintiff who has been
subject to injurious conduct of one kind possess by virtue of that injury the necessary stake in
litigating conduct of another kind, although similar, to which he has not been subject.”).
(iv) Adequacy ©
Mr. Carter would be an adequate class representative—if, of course, his claims
encompassed the class claims.
Mr. Carter would be inadequate only if he had a conflict of interest with the class. The legal
differences between his injury and the class’s injury are not antagonistic to each other. While the
claims are distinct, advancing one claim does not defeat the other. Thus, Mr. Carter’s differences
with the class would not rise to the level of a conflict of interest. See Valley Drug, 350 F.3d at
1189.
The proposed representative and counsel are adequate.
3. Rule 23(b)(3)
As the Mr. Carter has not satisfied the Rule 23(a) criteria, no Rule 23(b)(3) analysis is
required.
* Ok
For the reasons stated here, the Court, with respect to the Kloess subclass, finds that:
20
e The proposed class ts ascertainable;
e The proposed class is too numerous to make joinder of class members practicable;
e There are issues of law and fact common to the class;
e Mr. Carter doesust present claims typical of the members of the class;
e Mr. Carter would be an adequate class representative;
e The Evans Law Firm, Public Justice, and Terrell! Marshall Law Group PLLC would
be adequate class counsel; and,
e Upon consideration of the factors enumerated in Rule 23(g)(1)(A) and other
pertinent material of record, the Evans Law Firm, Public Justice, and Terrell
Marshall Law Group PLLC are able to fairly and adequately represent the interests
of the class.
See Fed. R. Civ. P. 23(a), (b)(3), (g). Therefore, because Mr. Carter did not meet his burden to
show that his claims are typical of the class, certification of the Kloess subclass is not warranted.
D. False-Imprisonment Class
Mr. Carter seeks to certify a false-imprisonment class “consisting of all individuals the
Montgomery Municipal Court placed on JCS-supervised probation, who (1) had debt commuted
to jail time in a JCS-supervised case after JCS petitioned the court to revoke probation; and (2)
served any of that jail time on or after September 11, 2009.” Mot. Class Certification 2, That class
definition matches the false-imprisonment class definition in McCullough word-for-word, except
that the City class period starts seventy-two days later. Compare id., with McCullough Mot. Class
Certification 1 (McCullough ECF No. 281).
21
Because the classes are essentially identical, the Court’s analysis denying certification of
the false-imprisonment class in McCullough suffices to deny certification of the false-
imprisonment class here. See McCullough slip op. 37-44.
For the reasons stated here and in the Court’s analysis denying certification of the false-
imprisonment class in McCullough, the Court, with respect to the false-imprisonment class, finds
that:
e The proposed class is ascertainable;
e The proposed class is too numerous to make joinder of class members practicable;
e There are issues of law and fact common to the class;
e Mr. Carter presents claims typical of the members of the class;
e Mr. Carter would be an adequate class representative;
e The Evans Law Firm, Public Justice, and Terrell Marshall Law Group PLLC would
be adequate class counsel;
e Common questions do not predominate over individual questions;
e Acclass action is not superior to other forms of dispute resolution; and,
e Upon consideration of the factors enumerated in Rule 23(g)(1)(A) and other
pertinent material of record, the Evans Law Firm, Public Justice, and Terrell
Marshall Law Group PLLC are able to fairly and adequately represent the interests
ofthe class. .
See Fed. R. Civ. P. 23(a), (b)(3), (g). Therefore, because Mr. Carter did not meet his burden to
show that common issues predominate over individual issues or that a class action would be the
superior method of dispute resolution, certification of the false imprisonment class is not
warranted.
22
IV. CONCLUSION
Based on the foregoing, the Court will DENY the plaintiffs’ motion for class certification.
A separate order accompanies this memorandum opinion.
'
Slat ec. Lalor
Date: 2 IL Royce C. Lamberth
United States District Judge
23