Smith-Journigan et al v. Franklin County, Ohio, No. 2:2018cv00328 - Document 63 (S.D. Ohio 2022)
Court Description: OPINION and ORDER denying without prejudice 34 Motion to Certify Class. Signed by Judge Michael H. Watson on 8/29/2022. (jk)
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<(2) class seeking only injunctive and declaratory relief). "A district court has broad discretion to decide whether to certify a class," and "[c]lass certification is appropriate if the court finds, after conducting a rigorous analysis, that the requirements of Rule 23 have been met. " In re Whirlpool, 722 F. 3d at 850-51 (internal quotation marks and citations omitted). As the United States Court of Appeals for the Sixth Circuit has explained, Ordinarily, this means that the class determination should be predicated on evidence presented by the parties concerning the maintainability of the class action. On occasion it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question and rigorous analysis may involve some overlap between the proof necessary for class certification and the proof required to establish the merits of the plaintiffs' underlying claims. In re Whirlpool, 722 F. 3d 851 (cleaned up). Therefore, "[m]erits 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. Ret. Plans & Tr. Funds, 568 U. S. 455, 466 (2013). "The party seeking the class certification bears the burden of proof that CaseNo. 2:18-cv-328 Page 4 of 9 Case: 2:18-cv-00328-MHW-CMV Doc #: 63 Filed: 08/29/22 Page: 5 of 9 PAGEID #: 1215 the prerequisites to certification are met. In re Am. Med. Sys., Inc., 75 F. 3d 1069, 1079 (6th dr. 1996) (citing cases). III. ANALYSIS Plaintiff's motion for class certification fails because he has not established numerosity. To prove numerosity, Plaintiff must demonstrate that the putative class is "so numerous that joinder of all members is impracticable. " Fed. R. Civ. P. 23(a)(1). "There is no strict numerical test for determining impracticability of joinder. " In re Am. Med. Sys., Inc., 75 F. 3d at 1079 (6th Cir. 1996) (citation omitted). Indeed, "[t]he numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations. " Gen. Tel. Co. of the Nw., Inc., v. EEOC, 446 U. S. 318, 330 (1980). The "the exact number of class members need not be pleaded or proved. " McDonald v. Franklin Cnty., Ohio, 306 F. R. D. 548, 556 (S. D. Ohio 2015) (internal quotation marks and citations omitted). However, "impracticability of joinder must be positively shown, and cannot be speculative. " Young, 693 F. 3d at 541 (quoting Golden v. City of Columbus, 404 F. 3d 950, 966 (6th Cir. 2005)). That is, the moving party must "prove that there are in fact sufficiently numerous parties" to "demonstrate compliance" with the numerosity requirement. See Wal-Mart, 564 U. S. at 351 (emphasis in original). In support of numerosity, Plaintiff points to Defendant's annual report from 2012 (the "2012 Report"), which shows that there were "approximately" 37, 500 inmates processed at FCCF in 2010; 38, 000 in 2011 ; and 33, 000 in 2012. See CaseNo. 2:18-cv-328 Page 5 of 9 Case: 2:18-cv-00328-MHW-CMV Doc #: 63 Filed: 08/29/22 Page: 6 of 9 PAGEID #: 1216 Memo. 11, ECF No. 35; Mot. Ex. 4, ECF No. 34-4. 2 Plaintiff contends that a "sizeable portion of these admissions were for misdemeanor charges. " Memo. 11, ECF No. 35. However, Plaintiff does not provide any estimations of how many admissions were for misdemeanor charges, or of how many of those people indicated they had the financial means to afford bail. 3 Id. Plaintiff contends that numerosity is established through a "conservative estimate" based on these numbers. Id. Plaintiffs evidence in support of numerosity is too speculative. The Sixth Circuit's decision Golden is instructive. 404 F. 3d at 950. In Golden, the named plaintiff sought to represent a class of tenants in Columbus, Ohio whose water service had been or would be "terminated because of the landlord's or prior tenant's indebtedness. " Id. at 965-66. To establish numerosity, the named plaintiff relied solely on the total number of renters in the city of Columbus. Id. The Sixth Circuit agreed with the district court's conclusion that this was too 2 Plaintiff states that these numbers represent the number of inmates admitted to FCCFs in each year. However, the 2012 Report explains that these numbers reflect the number of identification records processed, including "old identification records" and "new identification records. " See Mot. Ex. 4, ECF No. 34-4 at PAGEID #: 909. Although it may be reasonable to assume that a newly processed identification record corresponds to a new inmate admission, the 2012 Report does not so explain, nor does it explain the difference between "old" and "new" records processed. Of course, this may be mere semantics, but the language differences are yet another reason why class certification is improper at this time. 3 Although Plaintiff does not cite to them, the 2012 Report lists the percentages of the felony inmate populations for FCCF. See Mot. Ex. 4, ECF No. 34-4 at PAGEID ##: 905-06. However, it is not clear whetherthese numbers refer to pre- or postsentence detainees, or how they relate to the "identifications records" numbers from PAGEID #: 909. So, these numbers offer little, if any, assistance to Plaintiffs position. CaseNo. 2:18-cv-328 Page 6 of 9 Case: 2:18-cv-00328-MHW-CMV Doc #: 63 Filed: 08/29/22 Page: 7 of 9 PAGEID #: 1217 speculative because "reference to the total number of tenants in Columbus is not probative of the number of tenants reasonably likely to face the harm for which [the named plaintiff] seeks redress. " Id. The same reasoning applies with even greater force here. First, the reports on which Plaintiff relies are from several years before the time period for the proposed class. Second, just as the named plaintiff in Golden unsuccessfully relied on only the total number of renters, so here Plaintiff relies on the total number of admissions to FCCF. Because Plaintiff does not provide any information of how that total number breaks down into persons arrested for misdemeanors and persons who had the financial ability to pay their bail upon arrest, the "reference to the total number of [admissions to FCCF] is not probative of the number of [arrestees] reasonably likely to face the harm for which [Plaintifq seeks redress. " Golden, 404 F.3d at 966. So, Plaintiff has not established numerosity. In some circumstances, it would be acceptable for a court to make a "reasonable inference" that numerosity is met. For example, in Young, 693 F.3d 532 (6th Cir. 2012), the district court considered an expert analysis of insurance policies written by the defendants. Id. at 541-42. Based thereon, the district court found that a 1 % error rate was fairly attributable to all the defendants, and that the error rate established numerosity. The Sixth Circuit held the district court did not abuse its discretion in making that determination. Id. CaseNo. 2:18-cv-328 Page 7 of 9 Case: 2:18-cv-00328-MHW-CMV Doc #: 63 Filed: 08/29/22 Page: 8 of 9 PAGEID #: 1218 That type of inference would be inappropriate here because Young is distinguishable from this case. In Young, the plaintiffs provided an expert analysis of the at-issue policies on which the district court could rely to draw a reasonable inference that numerosity had been met. Young, 693 F. 3d at 54142. Here, Plaintiff has given the Court a years-old report and points to only the total number of admissions to FCCF. Under the facts of this case, making the type of inference the district court made in Young would not be reasonable and instead would mean the Court had failed to conduct the requisite "rigorous analysis" for Rule 23 certification. See Golden, 404 F.3d at 966 ("Hhe district court must engage in a 'rigorous analysis' when evaluating the plaintiff's proof of numerosity. "). In short, Plaintiff has not "prove[d] that there are in fact sufficiently numerous parties. " See Wal-Mart, 564 U. S. at 351 (emphasis in the original). Accordingly, class certification is inappropriate at this juncture. The Court suspects, however, that further discovery may uncover facts necessary to support another motion to certify a class. If that happens, Plaintiff may move again for class certification.4 4 Failing to demonstrate any one ofthe 23(a) factors is fatal to class certification, so the Court need not address any of the other factors. However, the Court has concerns about some of the Rule 23 factors not addressed in this Order. Should Plaintiffdecide to re-move for class certification, he is encouraged to carefully consider Florence v. Bd. of Chosen Freeholders ofCnty. of Burlington, 566 U. S. 318 (2012) and this Court's analysis of Florence in McDonald, 306 F. R. D. 548, and what effect, if any, those cases have on the Rule 23 factors in this case. CaseNo. 2:18-cv-328 Page 8 of 9 Case: 2:18-cv-00328-MHW-CMV Doc #: 63 Filed: 08/29/22 Page: 9 of 9 PAGEID #: 1219 As a final matter, the Court is concerned that both Plaintiffs lack Article III standing to pursue injunctive relief in this case. See Williams v. City of Cleveland, 907 F. 3d 924, 932 (6th Cir. 2018) (finding, in a case challenging jail strip search policies, that the named plaintiff lacked standing to pursue injunctive relief). Accordingly, Plaintiffs are ORDEREDto file a brief, not to exceed fifteen pages, in support of Article III standing for injunctive relief within forty-five days. Defendant's response, not to exceed fifteen pages, is due within twenty-one days of Plaintiffs' brief. Plaintiffs' reply, if any, is due within fourteen days of Defendant's response. IV. CONCLUSION For these reasons, Plaintiff's motion is DENIEDWITHOUT PREJUDICE. The Clerk is DIRECTED to terminate ECF Nos. 34 and 3 . IT IS SO ORDERED. MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT CaseNo. 2:18-cv-328 Page 9 of 9
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