Borum v. Brentwood Vill., LLC

ADRIANN BORUM, et al., Plaintiffs, v. BRENTWOOD VILLAGE, LLC, et al., Defendants.

Civil Action No.: 16-1723 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

February 12, 2018

Re Document No.: 43

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR CLASS CERTIFICATION; GRANTING PLAINTIFFS' MOTION FOR THE APPOINTMENT OF CLASS COUNSEL

I. INTRODUCTION

Plaintiff Adriann Borum seeks to represent a putative class of residents of her apartment complex, Brookland Manor, whom she alleges are at risk of being displaced should Defendants proceed with their plans to redevelop the complex, or who have already been displaced in anticipation of the redevelopment.¹ The planned redevelopment will eliminate four- and five-bedroom apartments in the complex, and will reduce the number of three-bedroom apartments as well. This policy, Ms. Borum claims, will have a disparate impact on hundreds of residents based on their familial status in violation of the Fair Housing Act ("FHA") and the D.C. Human Rights Act ("DCHRA"). Additionally, Ms. Borum claims that Defendants have made discriminatorystatements based on familial status in violation of the FHA and the DCHRA. Therefore, she has moved to certify a class of residents whom she believes have been harmed or are at risk of being harmed by the proposed redevelopment and activities surrounding it, and for the appointment of her lawyers as counsel for that class. Pls.' Mem. P. & A. Supp. Mot. Class Cert. & Appointment Class Counsel ("Pls.' Mem."), ECF No. 43-1. For the reasons set forth below, the Court grants in part and denies in part her motion for class certification, and grants her motion for the appointment of class counsel.

II. FACTUAL AND PROCEDURAL BACKGROUND

Defendants in this action—Brentwood Associates, L.P.; Mid-City Financial Corporation; and Edgewood Management Corporation—plan to redevelop Brookland Manor, an affordable housing complex in the Brentwood neighborhood of Washington, D.C. Brookland Manor currently contains 535 units, which range in size from one- to five-bedroom apartments. See Pls.' Mot. Class Cert. & Appointment Class Counsel ("Pls.' Mot."), Ex. 12 at 1-2, ECF No. 43-17. Once Brookland Manor has been transformed into the new Brentwood Village development, the complex will contain 2,235 rental apartments and for-sale homes. Id. at 1. While today Brookland Manor contains 75 three-bedroom apartments, 113 four-bedroom apartments, and 21 five-bedroom apartments, once Defendants have completed the redevelopment, Brentwood Village will have zero four- and five-bedroom apartments, and only 64 three-bedroom apartments. See Pls.' Mot., Ex. 4 at 5-6, ECF No. 43-9. It is this planned alteration in the composition of the complex that Ms. Borum challenges. As a resident of a four-bedroom apartment, which she occupies with her five children (two minor and three adult), she fears that once the redevelopment takes place, she will be, at best, stuck competing with 117 otherfamilies² for 64 three-bedroom units, or at worst, displaced altogether. Pls.' Mem. at 4. Additionally, she fears that even if she were able to procure a three-bedroom apartment, it would be too small for her family. See Decl. Adriann Borum ("Borum Decl.") ¶ 8-10, Pls.' Mot., Ex. 2, ECF No. 43-7.

Defendants began the process of seeking approval for this redevelopment in October 2014, when they submitted their application for a First-Stage planned unit development ("PUD") approval. See Zoning Case Records, Case No. 14-18, available at https://app.dcoz.dc.gov/Content/Search/ViewCaseReport.aspx?case_id=14-18. The application was approved in 2015. Id. Defendants filed their application for Second-Stage PUD approval in September 2016, one month after Ms. Borum had filed this action. That application is still pending. See Zoning Case Records, Case No. 14-18A, available at https://app.dcoz.dc.gov/Content/Search/ViewCaseReport.aspx?case_id=14-18A. Once that application has been approved, Defendants will be able to begin redeveloping the property. See generally 11 D.C. Mun. Regs. § 2408.1; see also Pls.' Mem. P. & A. Supp. Mot. Prelim. Inj. ("Pls.' Mot. Prelim. Inj."), ECF No. 4; Decl. William Merrifield ¶ 9, ECF No. 4-3.

Along with her complaint, Ms. Borum had filed a motion for a preliminary injunction asking the Court to bar "Defendants from filing their second-stage PUD application with the Zoning Commission." Pls.' Mot. Prelim. Inj. at 15. Since Defendants filed their Second-Stage application before the Court ruled on Ms. Borum's motion for a preliminary injunction, sheamended the relief she sought in her reply brief and asked the Court to "preliminarily enjoin Defendants from displacing families from their homes during the adjudication of these families' fair housing rights in this action." Pls.' Reply at 3, ECF No. 20.

In response, Defendants filed a motion to dismiss on several grounds: lack of exhaustion of administrative remedies; lack of jurisdiction under the Rooker-Feldman doctrine; the Younger abstention doctrine; ONE DC's lack of standing; and failure to state a claim. See Defs.' Mem. in Supp. Mot. Dismiss, ECF No. 16. The Court denied both motions, see Borum v. Brentwood Village, LLC, 218 F. Supp. 3d 1 (D.D.C. 2016), and ordered the commencement of "limited discovery for the purpose of exchanging information related to the demographics of Brookland Manor residents as necessary to adjudicate a motion for class certification." Scheduling Order, ECF No. 34.

With the materials from that discovery in hand, Ms. Borum has now moved for certification of the following hybrid class under Rules 23(b)(2) and (b)(3):

All households who reside or have resided at Brookland Manor in a three-, four-, or five-bedroom unit with one or more minor child, and (i) have been displaced from a three-, four-, or five-bedroom unit at Brookland Manor since October 1, 2014 (the date that Defendants proposed their First Stage PUD to the Zoning Commission), or (ii) are at risk of being displaced from a three-, four-, or five-bedroom unit at Brookland Manor.

Pls.' Mot. at 1, ECF No. 43. She also moved for the appointment of her legal team as class counsel. Id. at 2. For the reasons set forth below, Ms. Borum's motion for class certification is granted in part and denied in part, and her motion for the appointment of class counsel is granted.

III. LEGAL STANDARDS

"A district court exercises broad discretion in deciding whether to permit a case to proceed as a class action." Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994). However,"Rule 23 does not set forth a mere pleading standard." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Instead, a plaintiff "must affirmatively demonstrate [her] compliance with the Rule—that is, [she] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Id. "Frequently that 'rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped." Wal-Mart, 564 U.S. at 351. However, "Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Amgen Inc. v. Conn. Retirement Plans & Tr. Funds, 568 U.S. 455, 466 (2013).

When appropriate, district courts may redefine classes or subclasses sua sponte prior to certification. See Rule 23(c)(5); In re General Motors Corp. Engine Interchange Litigation, 594 F.2d 1106, 1129 n.38 (7th Cir.), cert. denied sub nom. General Motors Corp. v. Oswald, 444 U.S. 870 (1979); Santillan v. Gonzalez, 388 F. Supp. 2d 1065, 1072 (N.D. Cal. 2005); Am. Fin. Sys. Inc. v. Harlow, 65 F.R.D. 94, 107 (D. Md. 1974). Because it is the plaintiff, and not the court, who bears the burden of fashioning appropriate class definitions and demonstrating that the requirements of Rule 23 are met for each, it is left to the court's discretion to choose whether to intervene in this way. See U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 408 (1980). Subclasses must also satisfy all of Rule 23's requirements in order to be certified. See D.L. v. District of Columbia, 713 F.3d 120, 129 (D.C. Cir. 2013); see also Bynum v. District of Columbia, 214 F.R.D. 27, 41 (D.D.C. 2003).

IV. ANALYSIS

Ms. Borum has moved for certification of the following hybrid class under Rules 23(b)(2) and (b)(3):

All households who reside or have resided at Brookland Manor in a three-, four-, or five-bedroom unit with one or more minor child, and (i) have been displaced from a three-, four-, or five-bedroom unit at Brookland Manor since October 1, 2014 (the date that Defendants proposed their First Stage PUD to the Zoning Commission), or (ii) are at risk of being displaced from a three-, four-, or five-bedroom unit at Brookland Manor.

Pls.' Mot. at 1. For the reasons set forth below, the Court grants certification of the following class under Rule 23(b):

All individuals who reside at Brookland Manor in a three-, four-, or five-bedroom unit with one or more minor child, and are at risk of being displaced from a three-, four-, or five-bedroom unit at Brookland Manor as a direct result of the proposed redevelopment.

A. Rule 23(a) Requirements

Rule 23(a) contains four requirements for the certification of any class. It provides that "members of a class may sue or be sued as representative parties on behalf of all members 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 protect the interests of the class." Fed. R. Civ. P. 23(a). These requirements are often referred to as "numerosity," "common...