Opinion
No. X04 CV 06 4006233S
November 13, 2007
RULING ON MOTION FOR CLASS CERTIFICATION
The plaintiff Cheryl Gregor, purporting to act on behalf of herself and those similarly situated, claims that the defendants have engaged in negligent and unconstitutional conduct and have violated their statutory duties with regard to providing safe and habitable low income housing. She alleges that she is a tenant of the Thames River Apartments and has brought this action against the defendants New London Housing Authority ("Authority"), its commissioners and executive director, the City of New London ("City"), and the city's police chief and director of health. She has moved (#104) for an order that the action proceed as a class action on behalf of all persons situated similarly to herself.
The general test whether to certify a class action has been stated several times by our Supreme Court. For example, the court said recently in Collins v. Anthem Health Plans, Inc. ( Collins II), 275 Conn. 309, 320-23 (2005):
[W]e set forth the standard of review governing class certification orders. A trial court must undertake "a rigorous analysis" to determine whether the plaintiff's have borne the burden of demonstrating that the class certification requirements of Practice Book §§ 9-7 and 9-8 have been met. (Internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., [ 266 Conn. 12, 23 (2003)]. A trial court nonetheless "has broad discretion in determining whether a suit should proceed as a class action." (Internal quotation marks omitted.) Id. As long as the trial court "has applied the proper legal standards in deciding whether to certify a class, its decision may . . . be overturned [only] if it constitutes an abuse of discretion." (Internal quotation marks omitted.) In re Visa Check/Mastermoney Antitrust Litigation, 280 F.3d 124, 132 (2d Cir. 2001), cert. denied, 536 U.S. 917, 122 S.Ct. 2382, 153 L.Ed.2d 201 (2002).
"[I]n determining whether to certify the class, a [trial] court is bound to take the substantive allegations of the complaint as true." (Internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., supra, 266 Conn. 24. That does not mean, however, that a court is limited to the pleadings when determining whether the requirements for class certification have been met. On the contrary, we stated in Collins that "[t]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the [plaintiffs'] cause of action"; (internal quotation marks omitted) id.; and that "it [sometimes] may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." (Internal quotation marks omitted.) Id. "In determining the propriety of a class action, [however] the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of [the class action rules] are met." (Internal quotation marks omitted.) Id., 24-25. "Although no party has a right to proceed via the class mechanism . . . doubts regarding the propriety of class certification should be resolved in favor of certification." (Citation omitted; internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 743, 818 A.2d 731 (2003).
The rules of practice set forth a two step process for trial courts to follow in determining whether an action or claim qualifies for class action status. First, a court must ascertain whether the four prerequisites to a class action, as specified in Practice Book § 9-7, are satisfied. These prerequisites are: "(1) numerosity — that the class is too numerous to make joinder of all members feasible; (2) commonality that the members have similar claims of law and fact; (3) typicality that the [representative] plaintiffs claims are typical of the claims of the class; and (4) adequacy of representation — that the interests of the class are protected adequately." Id., 738, citing Practice Book § 9-7; accord Collins v. Anthem Health Plans, Inc., supra, 266 Conn. 33. Second, if the foregoing criteria are satisfied, the court then must evaluate whether the certification requirements of Practice Book § 9-8 are satisfied. These requirements are: (1) predominance that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members"; and (2) superiority — that "a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Practice Book § 9-8. Because our class certification requirements are similar to those embodied in rule 23 of the Federal Rules of Civil Procedure,[fn. 8] and our jurisprudence governing class actions is relatively undeveloped, we look to federal case law for guidance in construing the provisions of Practice Book §§ 9-7 and 9-8. See Collins v. Anthem Health Plans, Inc., supra, 266 Conn. 32.
With these principles in mind, we turn to the allegations of the complaint. The currently operative complaint is dated July 18, 2006. The complaint contains nine counts. A set of "general allegations" sets forth the status of the parties and the nature of the complaint. Briefly, the plaintiff Cheryl Gregor is alleged to be a resident of the Thames River Apartments in New London. Those premises are owned and operated as low income housing by the authority. Ms. Gregor claims to represent approximately 280 current tenants, as well as all other past and future tenants of the premises. She claims that the defendants have failed to provide safe and habitable housing at the Thames River Apartments in disregard of their duties as defined in General Statutes §§ 8-40 et seq. and 47a-7. It is alleged that the requirements for maintaining a class action are satisfied.
A request to amend the complaint (#120) was filed on September 25, 2007. The request was objected to, and has not been ruled on. I will briefly mention the request infra. I am considering, for the purpose of this motion, the state of the pleadings when the motion was filed.
The complaint goes on to allege nine counts. The first two are brought against the authority, its executive director and commissioners. They claim negligence in the first count and public nuisance in the second, and assert as damages that "the plaintiffs have suffered, and continue to suffer, psychological and psychiatric trauma and severe emotional distress for which they are likely to require counseling and therapy." The third count is brought in negligence against the city, pursuant to General Statutes § 52-557n. It claims the same damages as the prior counts. The fourth count claims public nuisance against the city. The fifth and sixth are brought in negligence against the public health director and the police chief, and the seventh is an indemnification count against the city. The eighth count is a federal civil rights count, alleging, inter alia, a denial of equal protection, and is brought against all of the defendants. Each of the first eight claims appears to claim money damages for personal injury; the same damages are claimed as to each count.
The language regarding the claimed damages was quoted in the discussion regarding the first and second counts.
The ninth count is a request for a mandatory injunction against the authority, its executive director and its commissioners. It claims that the authority has the statutory obligation to provide safe and habitable housing and that it has not done so. It alleges that the plaintiffs continue to live in squalor as a result, and claims irreparable harm and no adequate remedy at law. As relief, the plaintiffs seek an injunction directing the "defendants" to provide housing as required by statute, the appointment of a receiver for the Thames River Apartments, compensatory and punitive damages, attorneys fees and costs, and whatever other relief the court deems appropriate.
The task of the court, as noted in Collins II, supra, and Collins v. Anthem Health Plans, Inc. ( Collins I), 266 Conn. 12 (2003), is to analyze the pleadings with reference to the requirements of Practice Book §§ 9-7 and 9-8. See also General Statutes § 52-105; Ahmad v. Yale New Haven Hospital, Inc., 104 Conn.App. 380 (2007). Section 9-7 of the Practice Book states that "[o]ne or more members of a class may sue or be sued as representatives parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately represent, protect the interests of the class." It is the burden of the party seeking class certification, in this case the plaintiff, to show that each of the factors is satisfied.
It also should be noted that our Supreme Court has recognized that "partial class actions" are in some circumstances appropriate; that is, a class may be certified for the purpose of litigating some of the specific claims raised in a complaint, while proceeding by class action may be an inappropriate vehicle for the litigation of other claims. CT Page 19527 Collins I, supra, 25.
We now turn to a consideration of each of the Practice Book § 9-7 factors, starting with numerosity. Although the number of putative class members appears to be somewhat disputed, there would appear to be at least 125 members of the proposed class, based on 125 units, and perhaps many more. As stated in Arduini v. Automobile Ins. Co. of Hartford, Connecticut, 23 Conn.App. 585, 590 (1990), there is no "magic number" that provides a watershed, because "numerosity is tied to the impracticability of joinder under the particular circumstances of the case." Id. In Arduini, ten or eleven prospective members did not justify the certification of a class where joinder was available. In Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993), the Second Circuit suggested that a group of forty might presumptively be considered large enough to make joinder unwieldy and impractical. It is true, as suggested by the defendants, that geographic proximity might militate against the numerosity factor, in that joinder is easier. It is also true, however, that the proposed class members are likely to be indigent and thus less suitable to joinder. I find, on balance, that the plaintiff has sustained her burden in this case of satisfying the numerosity factor; joining more than a hundred cases would be unwieldy.
The factual materials submitted in connection with the motion indicate that there are, from time-to-time, a significant number of vacancies. There are also, however, frequently more that one tenant per unit. Gregor has a four-bedroom unit.
I next consider the factors of commonality and typicality. Commonality is relatively easy to satisfy: the members of the class must satisfy "a common element of law or fact." Collins II, supra, 323. If all class members would share a common argument as to an issue in the case, the commonality factor is satisfied. Id., 324. The question whether there are also individualized positions is relevant to considerations of predominance and superiority, the factors listed in Practice Book § 9-8, but are not pertinent to the inquiry regarding commonality. Id., 325.
Typicality stands on somewhat different footing. This factor is satisfied if the named plaintiff's claims are typical of the claims of the class. According to Collins I, at 266 Conn. 33-34:
The United States Supreme Court has explained that . . . [commonality and typicality] "tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff[s'] claim [for which the court has granted class certification] and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises [other] concerns . . ." General Telephone Co. of the Southwest v. Falcon, supra, 457 U.S. 157 n. 13. "These requirements effectively limit the class claims to those fairly encompassed by the named plaintiff[s'] claims." (Internal quotation marks omitted.) Id., 156.
As the United States Court of Appeals for the Second Circuit has stated, "[t]he commonality requirement is met if [the] plaintiffs' grievances share a common question of law or of fact . . . Typicality, by contrast, requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." (Citations omitted; internal quotation marks omitted.) Marisol A. v. Giuliani, supra, 126 F.3d 376. The typicality "criterion does not require that the factual background of each named plaintiff's claim be identical to that of all class members; rather, it requires that the disputed issue of law or fact occupy essentially the same degree of centrality to the named plaintiff's claim as to that of other members of the proposed class." (Internal quotation marks omitted.) Caridad v. Metro-North Commuter R., 191 F.3d 283, 293 (2d Cir. 1999), cert. denied, 529 U.S. 1107, 120 S.Ct. 1959, 146 L.Ed.2d 791 (2000). (Footnotes omitted).
Again, the typicality factor does not require identity of issue; rather, the more limited inquiry is whether the disputed issue of law or fact occupies the same degree of centrality to the plaintiff's claim as to that of the other members of the proposed class. The analysis is similar to that used in the consideration of the commonality element: the plaintiff's factual position in its entirety need not he "typical" of that of all of the members of the proposed class. The plaintiff's position as to a central, disputed issue must be "typical" of that of the remainder of the class, which must share the same central, disputed issue.
The pleadings suggest that the plaintiff shares a common issue with the other members of the proposed class, which is suggested to consist of all tenants past, present and future of the Thames River Apartments. A common claim is that the authority has not fulfilled its responsibilities and common redress of some sort is sought. The plaintiff's claim would appear to be typical, as defined above, of that of the class: the plaintiff is a resident (for seventeen years) of the premises. I find that the plaintiff has satisfied her minimal burden of showing commonality and typicality.
The final factor required by Practice Book § 9-7 is adequacy of representation. Again, for the purpose of § 9-7, the requirement is not stringent. It is two-fold: counsel must be competent and the plaintiff must not have a conflict of interest with other members of the proposed class, such that representation of both counsel and the representative plaintiff will be fair and vigorous. Collins II, supra, 326. The defendants agree that counsel is competent. An examination of the pleadings reveals that the plaintiff does not have a direct conflict of interest with other members of the proposed class, at least as to injunctive relief, if the class is narrowed to present tenants: the plaintiff claims to have lived on the premises and to have suffered as a result. The tenants may not all agree as to the ideal form of the specific relief, but in general, as may be distilled from the factual materials, all appear to want safe and healthful housing, at a minimum, and apparently — though not so clearly — the appointment of a receiver. There perhaps could be a tenuous and indirect conflict regarding other relief requested, in that any personal injury damages would surely vary. At least insofar as the relief is limited to injunctive relief for present tenants, however, it is quite clear that there is no direct conflict of interest. The plaintiff has satisfied the burden of showing compliance with the adequacy factor.
The requirements of Practice Book § 9-7 are, then, satisfied. The inquiry, however, does not end here. Practice Book § 9-8 states:
An action may be maintained as a class action if the prerequisites of Section 9-7 are satisfied and the judicial authority finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. (Emphasis added.)
The factors to consider in deciding whether common questions of fact and law predominate over individualized issues, and, relatedly, whether a class action is superior to other available methods, ultimately derive from the theoretical and practical underpinnings of class actions in general: whether the economies in proceeding as a class outweigh any procedural unfairness. Collins I, supra, 27, 50; Collins II, supra, 329. Considerations of procedural unfairness relate in large part to the protection of the interests of members of the proposed class, who, after all, are bound by the results. Our Supreme Court analyzed the predominance and superiority requirements in Collins II. The following quotation is lengthy, but aptly and thoroughly summarizes the standards applied by this court and the analysis used to reach its conclusion:
[T]he fundamental purpose of the predominance inquiry is to determine "whether the economies of class action certification can be achieved . . . without sacrificing procedural fairness or bringing about other undesirable results." (Citation omitted; internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., supra, 266 Conn. 50. We stated that "[c]lass-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof." (Emphasis added; internal quotation marks omitted.) Id., 48.
In order to determine whether common questions predominate, [a court must] . . . examine the [causes] of action asserted in the complaint on behalf of the putative class . . . Whether an issue predominates can only be determined after considering what value the resolution of the class-wide issue will have in each class member's underlying cause of action. (Citation omitted; internal quotation marks omitted.) Rutstein v. Avis Rent-A-Car Systems, Inc., 211 F.3d 1228, 1234 (11th Cir. 2000); cert. denied sub nom. Zeirei Agudath Israel Bookstore v. Avis Rent-A-Car Systems, Inc., 532 U.S. 919, 121 S.Ct. 1354, 149 L.Ed.2d 285 (2001). "Common issues of fact and law predominate if they ha[ve] a direct impact on every class member's effort to establish liability and on every class member's entitlement to injunctive and monetary relief . . . [When], after adjudication of the classwide issues, [the] 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[ized] claims, such claims are not suitable for class certification . . . See Perez v. Metabolife Int'l. Inc., 218 F.R.D. 262, 273 (S.D. Fla. 2003) (declining class certification in part because any efficiency gained by deciding the common elements will be lost when separate trials are required for each class member in order to determine each member's entitlement to the requested relief). (Citation omitted; internal quotation marks omitted.) Klay v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir. 2004).
[N]umerous [federal] courts have recognized [however] that the presence of individualized damages issues does not prevent a finding that the common issues in the case predominate. Allapattah Services, Inc. v. Exxon Corp., 333 F.3d 1248, 1261 (11th Cir. 2003), aff'd sub nom. Exxon Mobil Corp. v. Allapattah Services, Inc., U.S., 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). In assessing the predominance requirement in cases involving individualized damages, "the [c]ourt's inquiry is limited to whether . . . the proposed methods [for computing damages are so insubstantial as to amount to no method at all . . . [The plaintiffs] need only come forward with plausible statistical or economic methodologies to demonstrate impact on a class-wide basis." (Internal quotation marks omitted.) Klay v. Humana, Inc., supra, 382 F.3d 1259, quoting In re Terazosin Hydrochloride Antitrust Litigation, 220 F.R.D. 672, 698 (S.D. Fla. 2004). "Particularly [when] damages can be computed according to some formula, statistical analysis, or other easy or essentially mechanical methods, the fact that damages must be calculated on an individual basis is no impediment to class certification.
It is primarily when there are significant individualized questions going to liability that the need for individualized assessments of damages is enough to preclude [class] certification. See, e.g., [ Sikes v. Teleline, Inc., 281 F.3d 1350, 1366 (11th Cir.)] (These claims will involve extensive individualized inquiries on the issues of injury and damages — so much so that a class action is not sustainable.) [cert. denied sub nom. Sikes v. American Telephone Telegraph Co., 537 U.S. 884, 123 S.Ct. 117, 154 L.Ed.2d 143 (2002)]; [ Rutstein v. Avis Rent-A-Car Systems, Inc., supra, 211 F.3d 1234, 1240] (declining to certify a class because most, if not all, of the plaintiffs' claims will stand or fall . . . on the resolution of . . . highly case-specific factual issues and liability for damages is a necessarily individualized inquiry). Klay v. Humana, Inc., supra, 382 F.3d 1259-60; see also Kohn v. American Housing Foundation, Inc., 178 F.R.D. 536, 542-44 (D. Colo. 1998) (class certification inappropriate because injury suffered by each class member was highly individualized and could not be separated from causation inquiry).
These standards inform us that a court should engage in a three part inquiry to determine whether common questions of law or fact predominate in any given case. First, the court should review the elements of the causes of action that the plaintiffs seek to assert on behalf of the putative class. Rutstein v. Avis Rent-A-Car Systems, Inc., supra, 211 F.3d 1234. Second, the court should determine whether generalized evidence could be offered to prove those elements on a class-wide basis or whether individualized proof will be needed to establish each class member's entitlement to monetary or injunctive relief. Klay v. Humana, Inc., supra, 382 F.3d 1255. Third, the court should weigh the common issues that are subject to generalized proof against the issues requiring individualized proof in order to determine which predominate. See Collins v. Anthem Health Plans, Inc., supra, 266 Conn. 48. Only when common questions of law or fact "will be the object of most of the efforts of the litigants and the court" will the predominance test be satisfied. Snyder Communications, L.P. v. Magana, 142 S.W.3d 295, 300 (Tex. 2004).
Collins II, supra, 329-32.
We now apply the three-step analysis to the circumstances of this case. The elements of the causes of action which the plaintiff seeks to assert on behalf of the class involve, in the first eight counts, the conduct by the defendants in creating or allowing unsafe and unsanitary housing conditions, and the plaintiffs claim damages as a result. The ninth count incorporates the prior allegations and seeks injunctive relief of providing safe and sanitary housing and the appointment of a receiver. Money damages are sought as to the first eight counts, apparently, and injunctive relief as to the ninth. The city defendants are not named in the ninth count.
The second step is to determine which elements may be proved — or, presumably, disproved as well — by generalized evidence and which will require individualized evidence. This part of the analysis necessarily involves a degree of prediction and, therefore, estimation. In any event, it seems clear that the conditions of the premises — at least as to common areas — are subject to generalized evidence, as are the legal questions regarding ability to provide relief, defenses and perhaps the necessity of the presence of other parties. The ability to move residents is subject to generalized evidence. Individualized evidence, on the other hand, would be required to prove damages: each proposed class member's damages, if any, would vary according to the conditions he or she specifically lived in, how long he or she lived there, particularized injury, and the like. I find, on an analysis of the pleadings, that the predominance factor is satisfied as to injunctive relief, as alleged in the ninth count, but not as to items of damage as alleged in the first eight counts. As to the ninth count, I also find that a class action is superior to other available remedies: the economies of presenting one set of generalized proof, in both prosecution and defense, far outweigh any potential procedural unfairness. Over a hundred individual actions, whether or not joined, would foster expense, burdensomeness, and perhaps inconsistent results, with little benefit. I find, then, that a partial class action as to injunctive relief satisfies the predominance and superiority requirements and that the plaintiff has satisfied the burden of showing the same.
The situation is different as to the claims of damages, however. To a greater or lesser degree, these items of damages require individualized proof that may well vary from plaintiff to plaintiff and are not "formulaic." Depending of course on factors that are difficult to predict with precision, it may well be that the generalized proof will be routine and limited, while the individualized proof may be more detailed and protracted. In these circumstances, the plaintiff has not shown that a class action as to other than injunctive relief satisfies the requirements of predominance and superiority.
I therefore certify the class, limited to present tenants, as to the ninth count for injunctive damages, but not as to the other counts for other types of claimed damages. The plaintiff shall prepare an order consistent with this decision for submission to the court.
Perhaps future tenants may be substituted in. No ruling is suggested on that issue at this point.
The defendants have objected to the recent request to amend the complaint to include "relocation costs" as damages. I do not believe that such costs are an important consideration at this point in the proceedings. Should a variety of obstacles be overcome and should an injunction issue, relocation costs may perhaps be considered as relief ancillary to the injunction and perhaps could be proportioned in a formulaic way.
Finally, it should be noted that the defendants have argued vigorously that the class action cannot proceed without the participation of federal and state agencies, who apparently control the purse strings and without whose participation nothing can be done. This may be true. Those parties may have to be joined. There may well be enormous and insurmountable obstacles to obtaining relief, and the relief requested may turn out to be inappropriate in any event. This decision as to class certification simply says nothing about the merits of the case or the perceived need for joinder.