UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ADRIANN BORUM, et al., : : Plaintiffs, : Civil Action No.: 16-1723 (RC) : v. : Re Documents Nos.: 72, 74 : BRENTWOOD ASSOCIATES, L.P., et. al, : : Defendants. : MEMORANDUM OPINION
DENYING DEFENDANTS’ MOTION TO DECERTIFY THE CLASS AND DENYING DEFENDANTS’ MOTION TO STAY DISCOVERY
I. INTRODUCTION
On February 12, 2018, this Court certified a class of residents of the Brookland Manor
apartment complex alleged to be at risk of harm by Defendants’ planned redevelopment of the
complex, which Plaintiffs argue will have a disparate impact on residents based on their familial
status in violation of the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601–19, and D.C. Human
Rights Act (“DCHRA”), D.C. Code §§ 2-1401 to 2-1404. Defendants now move for
decertification of the class, arguing that new developments have rendered named plaintiff
Adriann Borum an inadequate class representative. The Court agrees that, in light of her
changed circumstances, Borum can no longer adequately represent the class. However, the
Court finds that decertification is an inappropriate remedy when Plaintiffs have the ability to find
an adequate substitute class representative for Borum. The Court accordingly denies the motion
to decertify the class and orders Plaintiffs to put forward a substitute class representative within
30 days. The Court also denies as moot Defendants’ motion to stay or continue discovery. II. FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Dispute and Class Certification 1
The certified class of plaintiffs in this case are residents of Brookland Manor, an
affordable housing complex in the Brentwood neighborhood of Washington, D.C. See Borum v.
Brentwood Village, LLC, 324 F.R.D. 1, 20 (D.D.C. 2018). Defendants Brentwood Associates,
L.P., Mid-City Financial Corporation, and Edgewood Management Corporation have put
together a redevelopment plan for the complex that reduces the number of three-bedroom
apartments and fully eliminates four- and five-bedroom apartments. See id. at 6–7. Plaintiffs are
residents of three, four, and five-bedroom apartments at Brookland Manor who are at direct risk
of being displaced from a three, four, or five-bedroom apartment as a result of the proposed
redevelopment plan. See id. at 20. Adriann Borum, the class representative, resides in a four-
bedroom apartment at Brookland Manor with her five children, see id. at 6, including, inter alia,
her adult children Donta and Trayvon, see Defs.’ Mem. Supp. Mot. Decertify Class at 2, ECF
No. 72.
Borum and original co-plaintiffs Loretta Holloman and One DC filed suit on August 25,
2016, bringing claims against Defendants for disparate impact discrimination and discriminatory
statements in violation of the FHA and the DCHRA. Compl., ECF No. 2. Holloman voluntarily
dismissed her claims on November 27, 2017. Order Granting Unopposed Mot. for Voluntary
Dismissal, ECF No. 56. After Borum and One DC filed a motion for class certification, the
Court granted the motion in part and certified a class of plaintiffs on February 12, 2018. See
1 Having already set out the factual background for this case in detail in the February 12, 2018 memorandum opinion, see Borum v. Brentwood Village, LLC, 324 F.R.D. 1 (D.D.C. 2018), the Court assumes familiarity with its prior opinion and only briefly goes over facts already discussed.
2 Borum, 324 F.R.D. at 20. In particular, the Court found that Borum was an adequate
representative despite Defendants’ contention that there was disagreement amongst putative class
members regarding whether the development should go forward, and the Court rejected
Defendants’ argument that Borum’s interests conflicted with those of the class. See id. at 17–19.
B. Recent Developments Relating to Borum
On August 10, 2018, Defendants filed a motion to decertify the class. Defs.’ Mot.
Decertify Class, ECF No. 72. Defendants represent that members of Borum’s household have
engaged in three instances of criminal activity over the prior ten months, that Borum was issued
a notice to vacate her residence at Brookland Manor and will soon be facing eviction, and that as
a result she no longer adequately represents the interests of the class. See Defs.’ Mem. Supp. at
1. Both parties appear to be in agreement as to the facts underlying each alleged instance of
criminal activity.
First, Trayvon Borum was arrested for reckless driving, leaving after colliding, and
unlawful possession of ammunition on November 26, 2017. See Nov. 26, 2017 Police Report,
Defs.’ Mot. Decertify Class Ex. B, ECF No. 72-3. According to the police report, the incident
began when police officers investigated reports of gunshots being fired in the 500-600 block of
Edgewood Terrace and a witness identified a maroon car leaving the area at high speed. See id.
When a police vehicle attempted to stop the car, it crashed into another police cruiser and four
men fled the scene. See id. Trayvon Borum was subsequently stopped by police and admitted to
being the driver of the maroon car. See id. In the car’s glove compartment, police officers
located 28 rounds of ammunition. See id. Trayvon Borum pled guilty to leaving after colliding
and unlawful possession of unregistered ammunition on January 9, 2018. See Jan. 9, 2018
3 Sentence, Defs.’ Mot. Decertify Class Ex. C, ECF No. 72-4; Docket, United States v. Borum,
2017 CTF 020138 (D.C. Sup. Ct.). 2
Second, Trayvon Borum was arrested for possession of a controlled substance and drug
paraphernalia on March 20, 2018. See March 20, 2018 Police Report, Defs.’ Mot. Decertify
Class Ex. D, ECF No. 72-5. According to the police report, the police officers who approached a
parked vehicle identified, in plain view, three bags containing a “green leafy substance” that was
later identified as marijuana, a digital scale, and a box containing clear sandwich bags. Id. Two
days after corresponding misdemeanor charges were filed in D.C. Superior Court, the charges
were dismissed nolle prosequi on March 23, 2018. See Pls.’ Mem. Opp’n Defs.’ Mot. Decertify
Class at 4, ECF No. 75; Docket, United States v. Borum, 2018 CMD 004602 (D.C. Sup. Ct.).
Finally, Donta Borum was arrested for assault on a police officer on July 5, 2018,
following an altercation with police on Brookland Manor grounds. See July 5, 2018 Police
Report at 2, Defs.’ Mot. Decertify Class Ex. A, ECF No. 72-2. The charge was also dismissed
nolle prosequi on August 14, 2018. See Docket, United States v. Borum, 2018 CMD 010005
(D.C. Sup. Ct.).
On July 29, 2018, Edgewood Management served Borum with a notice to quit and
vacate, for violation of the terms of her lease that prohibit engaging in drug-related criminal
activity on or near the complex, engaging in criminal activity that threatens the health, safety, or
right to peaceful enjoyment of other residents or of persons residing in the immediate vicinity of
the complex, and engaging in criminal activity generally. See Defs.’ Mem. Supp. at 5; Notice to
2 The Court can, and does, take judicial notice of the dockets for the related cases involving Borum and her family members. See, e.g., Al-Aulaqi v. Panetta, 35 F. Supp. 3d 56, 67 (D.D.C. 2014) (“A court may take judicial notice of facts contained in public records of other proceedings[.]” (citing Covad Commc’ns Co. v. Bell Atlantic Co., 407 F.3d 1220, 1222 (D.C. Cir. 2005)).
4 Quit and Vacate, Young Decl. Ex. 1, ECF No. 71-1. On August 31, 2018, Edgewood initiated
eviction proceedings against Borum and her family in D.C. Superior Court. See Docket,
Edgewood Mgmt. Corp., et al. v. Borum, 2018 LTB 020834 (D.C. Sup. Ct.).
After Defendants filed their motion to decertify on August 10, 2018, Defendants also
filed a motion to stay or continue discovery pending the Court’s determination of the motion to
decertify on August 24, 2018. See Defs.’ Mot. Stay Discovery, ECF No. 74. The same day,
Plaintiffs filed their memorandum in opposition to the motion to decertify. See Pls.’ Mem.
Opp’n. Defendants filed their reply in further support of the motion on August 31, 2018. See
Defs.’ Reply, ECF No. 77. The motion to decertify is now ripe for review. 3
III. LEGAL STANDARD
“After a class is initially certified, Rule 23 expressly grants courts the discretion to revisit
the propriety of continued class certification in later stages of litigation.” DL v. District of
Columbia, 312 F.R.D. 1, 6 (D.D.C. 2015) (citing Fed. R. Civ. P. 23(c)(1)(C)). The D.C. Circuit
has emphasized that “class certification problems are constantly subject to reconsideration as the
facts develop.” Reynolds v. Sheet Metal Workers, Local 102, 702 F.2d 221, 226 (D.C. Cir.
1981). And “[a]s the proponent of continued class certification, Plaintiffs [retain] the burden of
establishing that [all] of the requirements for class certification ... are met.” Lightfoot v. District
of Columbia, 246 F.R.D. 326, 332 (D.D.C. 2007) (citing Amchem Prods., Inc. v. Windsor, 521
U.S. 591, 614 (1997)).
3 On January 2, 2019, Defendants filed a Notice of Supplemental Facts regarding the motion to decertify. See Defs.’ Notice Supp. Facts, ECF No. 111. In the notice, Defendants represent that additional criminal activity at Borum’s apartment was discovered pursuant to a search warrant on December 8, 2018. See id. at 2–3. The Court has reviewed the notice and the attached exhibits. Because the facts alleged in the notice do not alter the Court’s decision both with respect to whether Borum is an adequate class representative and whether the class should be decertified, the Court does not discuss the notice in its opinion.
5 IV. ANALYSIS
Defendants move to decertify the class because the eviction proceedings pending against
Borum render her an inadequate class representative. Defendants argue that Borum is likely to
be evicted and that she cannot adequately represent the class because she no longer has a long-
term stake in the redevelopment of Brookland Manor. See Defs.’ Mem. Supp. at 10. Plaintiffs
retort that any potential conflict is hypothetical, that Borum’s eviction is unlikely, and that her
interests remain consistent with those of the class. See Pls.’ Mem. Opp’n at 6–7. Plaintiffs also
argue that decertification would be an inappropriate remedy even if Borum was an inadequate
class representative. See id. at 5–6. In their reply, Defendants point out that the pending eviction
proceedings create a disqualifying conflict for Borum regardless of the outcome of those
proceedings. See Defs.’ Reply at 6, 9.
The Court first reviews whether Borum remains an adequate class representative, and
then whether decertification is an appropriate remedy. While the Court finds that Borum’s
interests conflict with the class and render her an inadequate representative, it finds that
substitution is the appropriate remedy. Accordingly, the Court denies the motion to decertify the
class.
A. Borum Is Not an Adequate Class Representative
The Court first evaluates whether the eviction suit pending against Borum affects the
adequacy of her representation of the class of plaintiffs in this case. Without definitely
pronouncing itself as to the likelihood of Borum’s eviction, the Court finds that the eviction
proceedings sufficiently change Borum’s interests to render her an inadequate class
representative.
6 Under Rule 23(a)(4), Plaintiffs have an ongoing burden of showing that Borum will
“fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). As the
Supreme Court has explained, “[t]he adequacy inquiry under Rule 23(a)(4) serves to uncover
conflicts of interest between named parties and the class they seek to represent.” Amchem
Prods., 521 U.S. at 625. Amongst other requirements, the rule “mandates an inquiry into . . . the
willingness and ability of the representative to take an active role in and control the litigation and
to protect the interests of absentees.” Nat’l Ass’n for Mental Health, Inc. v. Califano, 717 F.2d
1451, 1458 (D.C. Cir. 1983) (quoting Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 471,
484 (5th Cir. 1982)). Courts have accordingly found inadequate representation when class
members’ “interests are antagonistic in fact to, or even ‘potentially conflicting’ with, the interests
of the ostensibly representative parties[.]” Phillips v. Klassen, 502 F.2d 362, 366 (D.C. Cir.
1974) (quoting Hansberry v. Lee, 311 U.S. 32, 41–42 (1940)). On the other hand, courts have
also recognized that “[o]nly conflicts that are fundamental to the suit and that go to the heart of
litigation prevent a plaintiff from meeting the Rule 23(a)(4) adequacy requirement.” Keepseagle
v. Vilsack, 102 F. Supp. 3d 205, 216 (D.D.C. 2015) (quoting Newberg on Class Actions § 3:58
(5th ed. 2014)).
Defendants argue that Borum is no longer an adequate class representative because her
interest in defending against the eviction conflicts with the interests of the class, and because her
pending eviction means she no longer has a long-term interest in the redevelopment of
Brookland Manor. See Defs.’ Mem. Supp. at 13–14, Defs.’ Reply at 9. Plaintiffs retort that
Defendants’ arguments are based on speculation over the outcome of eviction proceedings, when
Borum’s current interests are unchanged and in line with those of the class. Pls.’ Mem. Opp’n at
6–9. Plaintiffs separately argue that Borum’s eviction is unlikely. See id. at 10–11. The Court
7 first addresses Plaintiffs’ argument that any asserted conflict based on the pending eviction
proceedings is speculative. Because much of Defendants’ arguments rely on their assumption
that Borum will be evicted, the Court next reviews the parties’ arguments as to the likelihood of
Borum’s eviction. Finally, the Court reviews the parties’ arguments regarding how the potential
eviction could affect Borum’s interests in this litigation.
1. The Eviction Proceedings Create a Present Conflict for Borum
First, the Court briefly discusses, and rejects, Plaintiffs’ arguments that the pending
eviction proceedings raise an inherently speculative or hypothetical conflict between Borum and
the class. “Speculative or hypothetical conflicts will not defeat the adequacy requirement[,]”
Garza v. Hargan, 304 F. Supp. 3d 145, 158 (D.D.C. 2018). Plaintiffs state in their opposition
that the pending eviction proceeding do not create any conflict because “all that Defendants have
offered . . . is speculation that at some unknown point in the future, Borum may no longer be a
resident of Brookland Manor.” Pls.’ Opp’n at 8. Plaintiffs essentially argue that there can be no
conflict based on the eviction until the conclusion of the pending eviction proceeding. See id.
(noting that “[t]he status of Ms. Borum’s hypothetical future tenancy provides no ground for an
order decertifying the class” and that “Defendants’ motion is entirely premature”).
However, as Defendants argue in their reply, a verdict in the eviction proceedings is not
necessary for a conflict to arise between Borum and the class. Plaintiffs are correct that while a
clear conflict of interest would arise between Borum and other classmembers after her eviction,
such a conflict remains hypothetical until she is actually evicted. However, Defendants point to
a separate conflict between Borum and the class, based on how a likely eviction would affect her
current interests in pursuing this case. If the possibility of eviction alters Borum’s interests to
the point where they become antagonistic to those of the class, Borum’s representation becomes
8 inadequate regardless of the eventual outcome of the eviction suit. See Phillips, 502 F.2d at 366.
For instance, if faced with virtually certain eviction within a year, Borum could be incentivized
to seek a quick end to the case in order to ensure at least some recovery (or preservation of her
tenancy), regardless of the wishes of the class. Cf. Amchem Prods., 521 U.S. at 625–26 (noting
inadequacy of representation when class members with current injuries and need for immediate
payment had interests that conflicted with those of class members with future injuries). As
Defendants point out, Borum has received a notice of eviction and eviction proceedings against
her have already begun. See Defs.’ Reply at 7–8. Borum’s status as a long-term resident of
Brookland Manor is therefore already at risk, creating the possibility of a conflict with other
members of the class. Whether such a conflict sufficiently affects Borum’s interests to “go to the
heart of litigation[,]” Keepseagle, 102 F. Supp. 3d at 216 (quoting Newberg on Class Actions §
3:58), in part turns on the likelihood of the eviction proceeding being successful. The Court
therefore considers the parties’ argument regarding the eviction.
2. Borum’s Eviction Is Not Certain
Much of Defendants’ arguments for decertification rely on the assumption that Borum’s
eviction from Brookland Manor is inevitable. See, e.g., Defs.’ Mem. Supp. at 11 (noting that
Borum “no longer has a personal interest” in the redevelopment of Brookland Manor because she
has an “obligation to vacate the premises”). By contrast, Plaintiffs argue that the eviction notice
against Borum is unlikely to be upheld in court. See Pls.’ Mem. Opp’n at 10–11. After
reviewing the parties’ arguments and D.C. landlord and tenant law, the Court concludes that
while there appears to be a significant risk that Borum will be evicted, the eviction is not as
inevitable as Defendants would have the Court believe.
9 Defendants argue that the three arrests and one conviction of members of Borum’s
household are sufficient to evict her because they trigger provisions of Borum’s lease that
prohibit engaging in certain types of illegal conduct. See Defs.’ Mem. Supp. at 8–9. Plaintiffs
retort that Defendants will “bear the burden of proving that these allegations [of illegal conduct]
both occurred and warrant an eviction[,]” when two of the three cases resulting from the arrests
were dismissed nolle prosequi and the third one involved an incident eight months prior to the
notice to vacate and not taking place on Brookland Manor grounds. See Pls.’ Mem. Opp’n at
10–11. Plaintiffs separately argue that Defendants likely triggered a statutory presumption that
the eviction proceedings were initiated in retaliation for Borum participating in the class action.
See id. at 11 (citing D.C. Code § 42-3505.02(b)). In their reply, Defendants assert that the
presumption of retaliation is overcome when, as in this case, the landlord’s actions are
“‘otherwise permitted by law.’” Defs.’ Reply at 5 (quoting Borger Mgmt., Inc. v. Sindram, 886
A.2d 52, 63 (D.C. 2005)).
On one hand, the criminal conduct allegedly engaged in by Trayvon and Donta Borum
provides a strong basis for eviction. As an initial matter, the parties do not dispute that Borum’s
lease lawfully authorizes eviction when a tenant or member of the tenant’s household engages in
certain types of criminal activity. Borum’s lease prohibits, inter alia, “drug related criminal
activity engaged in or on or near the premises” and “criminal activity . . . that threatens the
health, safety, or right to peaceful enjoyment of the premises by other residents . . . or . . . by
persons residing in the immediate vicinity of the premises[,]” Defs.’ Mem. Supp. at 5, both
provisions that are common in leases under Section 8 of the Fair Housing Act. Plaintiffs
similarly do not dispute the conviction or that the two other arrests occurred, and instead argue
10 that it will be a “significant burden” for Edgewood Management to show that the underlying
allegations of criminal conduct warrant eviction. The Court is unconvinced.
At least two of the three instances of criminality alleged appear well-supported and
directly applicable to the anti-criminality provisions of Borum’s lease. First, Trayvon Borum
pled guilty to leaving after colliding and unlawfully possessing ammunition on January 2018,
following an incident on November 26, 2017 where he crashed his car into a police cruiser and
fled the scene. Plaintiffs argue that the conduct underlying Trayvon Borum’s conviction “did not
occur on the Brookland Manor property.” Pls.’ Opp’n at 11. But Defendants point out that the
car crash occurred at most a block from Brookland Manor grounds. See Schapira Decl. ¶ 3,
Defs.’ Reply Ex. 1, ECF No. 77-1. Edgewood Management thus has a strong argument that
Trayvon Borum engaged in illegal activity that threatens the health, safety, or right to peaceful
enjoyment of residents in the immediate vicinity of Brookland Manor. Second, while the drug-
related charges stemming from Trayvon Borum’s arrest on Brookland Manor grounds in March
2018 were ultimately dismissed, the police report indicates that the substance found on him
tested positive for marijuana. See March 20, 2018 Police Report. As Defendants point out, a
conviction is not required for a court to uphold a notice to vacate based upon criminal activity.
See, e.g., Cook v. Edgewood Mgmt. Corp., 825 A.2d 939, 942–44, 950–953 (D.C. 2003) (noting
that an eviction action “is not a criminal case where the standard for conviction is extremely
high” and affirming eviction of tenant for drug-related criminal activity even absent criminal
conviction). Irrespective of any government decision or policy 4 against pursuing charges for
4 Plaintiffs argue that Edgewood Management will face “a significant burden to meet where criminal prosecutors have already deemed the allegations insufficient to support prosecution.” Pls.’ Mem. Opp’n at 10–11. But as Plaintiffs are undoubtedly aware, a nolle prosequi dismissal is not a determination on the merits, nor does it suggest that there is insufficient evidence to support a prosecution. A nolle prosequi is generally understood as “a
11 simple marijuana possession, the police report credibly supports the allegation that Trayvon
Borum engaged in drug-related activity on Brookland Manor grounds, in further violation of
Borum’s lease. Of course, Edgewood Management will have to prove its case in court and may
not prevail, but the documents Defendants provide in support of their motion provide strong
support for Edgewood Management’s arguments at least as to these two alleged instances of
criminal conduct.
On the other hand, the Court also finds some merit in Plaintiffs’ contention that the
eviction could be barred as retaliatory. Under D.C. law, there is a presumption of retaliation
when a housing provider takes action against a tenant less than six months after, inter alia, the
tenant either “[m]ade an effort to secure or enforce any of the tenant's rights under the tenant's
lease or contract with the housing provider[,]” or “[b]rought legal action against the housing
provider.” D.C. Code § 42-3505.02(b)(5), (6). Plaintiffs argue that Defendants’ institution of
eviction proceedings against Borum, the class representative in this case, triggers the
presumption of retaliation. See Pls.’ Mem. Opp’n at 11. Defendants retort that under D.C. law,
“the presumption of retaliation is overcome where a landlord takes an action ‘otherwise
permitted by law[,]’” Defs.’ Reply at 5 (quoting Borger Mgmt, Inc. v. Sindram, 886 A.2d 52, 63
(D.C. 2005)), and as a result that any presumption “is rebutted in circumstances such as those
presented here” when the eviction is “irrefutably permitted by law[,]” id. at 4. Defendants are
formal entry of record by the prosecuting attorney by which he or she declares that he or she is unwilling to prosecute the case.” 21 Am. Jur. 2d Crim. Law § 685 (citations omitted). This decision can be motivated by any of a number of reasons, and, as in this case, those reasons are typically not elaborated on by the prosecutor at the time of dismissal. And given the policy considerations at play in the prosecution of low-level federal marijuana possession offenses in Washington, D.C.—when possession of small amounts of marijuana is not illegal under D.C. law, see D.C. Code § 48-904.01—the Court is unconvinced by the argument that the nolle prosequi dismissal represents a prosecutorial determination that the possession allegations were insufficient to support prosecution.
12 incorrect because what matters is the landlord’s purpose in initiating eviction proceedings, rather
than whether the stated rationale for initiating eviction is lawful.
In Borger Mgmt., the D.C. Court of Appeals evaluated the preclusive effect of an
administrative judge’s decision that, inter alia, had dismissed a tenant’s retaliation claim against
his landlord. See 886 A.2d at 59. The court explained that the administrative judge had
appropriately determined the presumption of retaliation to be defeated when the landlord had
taken an action “otherwise permitted by law[,]” as required under the D.C. Code. Id. at 61
(citing D.C. Code § 42-3505.02(b)). However, the court did not find that simply pointing to a
permissible reason for the alleged retaliatory act was sufficient to show that it was “otherwise
permitted by law.” In fact, the Court of Appeals specifically rejected that argument in another
retaliatory eviction case, noting that “once the tenant is eligible for the benefit of the statutory
presumption, the landlord bears the burden of proving a non-retaliatory purpose behind the
eviction.” Youssef v. United Mgmt. Co., 683 A.2d 152, 155 (D.C. 1996) (emphasis added). In
reversing the lower court’s eviction order, the Court of Appeals noted in Youssef that “while it
may be that [the landlord] had a basis in the lease to evict the tenants,” the tenants would benefit
from the presumption of retaliation until the landlord provided “clear and convincing evidence”
that the eviction was not motivated by a retaliatory purpose. Id.
Here, the parties dispute Edgewood Management’s ulterior motives in their briefs and
supporting documents. Defendants point to a declaration by the Senior Community Manager of
Brookland Manor, who, inter alia, states both that she was not aware of the January 2018
conviction and March 2018 arrest until July 2018, and that it is common practice for Edgewood
Management to issue a notice of eviction to tenants who engage in criminal activity. See Young
Decl. ¶¶ 3–4, 6, Defs.’ Sealed Mot. for Leave to File Doc. Under Seal, ECF No. 71-1. Plaintiffs
13 challenge the timeline for issuance of the notice of eviction in their opposition, see Pls.’ Mem.
Opp’n at 11, and the Court fully expects that Borum will similarly challenge Edgewood
Management’s version of events in the eviction proceedings. At this stage, the Court can only
gather, assuming the presumption of retaliation applies, 5 that the defense is not frivolous.
Ultimately, while there appear to be valid grounds for Borum’s eviction, Edgewood
Management will have to contend both with the evidentiary burden to prove the alleged criminal
acts underlying Trayvon and Donta Borum’s arrests and conviction, and more importantly with a
potential retaliatory eviction defense that would require it to show, by clear and convincing
evidence, that it initiated the eviction action with a legitimate purpose. The outcome of the
eviction proceedings is thus less than certain.
3. Borum’s Current Interests Render her an Inadequate Class Representative
Finally, having reviewed the parties’ arguments regarding the likelihood of Borum’s
eviction, the Court examines whether the risk of eviction sufficiently alters Borum’s interests to
cause a fundamental conflict with other class members. While this is a close question, and the
conflict asserted in this case is quite different from the types of conflicts usually at issue in
sustained adequacy challenges, the Court nonetheless finds that the risk of eviction renders
Borum inadequate as a class representative. The Court first reviews the argument that the
eviction proceedings have shifted Borum’s recovery incentives in this litigation, before
examining Defendants’ argument that the unique eviction defense Borum is subject to renders
her an inadequate representative.
5 Defendants do not argue that the presumption should not apply, so the Court does not address the issue.
14 First, Defendants argue that the likelihood of future eviction incentivizes Borum to seek
relief that would maximize her own interests rather than the interests of the class, see Defs.’
Mem. Supp. at 12–14; Defs’ Reply at 9–10. Setting aside the fact that Defendants’ arguments
are premised on the incorrect assumption that Borum’s eviction is essentially certain, as
discussed above, 6 the Court finds the argument unpersuasive. As Defendants note, courts have
recognized that a proposed class representative is inadequate when the proposed representative is
incentivized to seek a different type of relief from other class members. See Defs.’ Mem. Supp.
at 12–13; AmChem Prods., 521 U.S. at 626; Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d
170, 187–89 (3d Cir. 2012); In re Nat’l Football League Players’ Concussion Injury Litig., 307
F.R.D. 351, 376 (E.D. Pa. 2015); In re Navy Chaplaincy, 306 F.R.D. 33, 54–55 (D.D.C. 2014).
However, the conflicts at issue in those cases arose in circumstances distinct from those at issue
here.
Conflicts based on recovery incentives typically pit plaintiffs with an immediate injury
and an interest in seeking immediate relief against other plaintiffs with an interest in delayed
compensation. See, e.g., AmChem Prods., 521 U.S. at 626. In AmChem Prods., the Supreme
Court upheld the decertification of a class of plaintiffs injured by asbestos exposure because the
named plaintiffs were presently injured but some of the class members, while at risk of
6 In both their motion and reply, Defendants make a number of conclusory assertions regarding Borum’s allegedly changed interests. Defendants posit that Borum “will not be living with the consequences of [her] decisions” and thus “does not have the same interests at stake as someone who will be living in the redeveloped property.” Defs.’ Mem. Supp. at 11. They contend that, as a “non-tenant,” Borum “simply does not share the same interests as the rest of the class.” Defs.’ Reply at 6–7. And they conclude that Borum therefore has changed incentives in terms of the ultimate outcome she seeks in the litigation—“[a]t the very most, . . . she will be a detached bystander pressing a policy goal regarding how Brookland Manor should be redeveloped.” Defs.’ Mem. Supp. at 13. But as discussed above, at least based on the parties’ arguments and on the record here, Borum’s eviction is not “only a question of time[.]” Id. at 12.
15 developing future injuries, were not presently injured. See id. at 626–28. The Court explained
that the interests of presently injured plaintiffs in obtaining immediate payments fundamentally
conflicted with the interests of those plaintiffs at risk of future injury, who would benefit from
the availability of “an ample, inflation-protected fund for the future.” Id. at 626. In Dewey, the
Third Circuit similarly rejected a proposed class of injured plaintiffs who would have recovered
from a single, shared fund, when two groups of plaintiffs within the class received different
benefits and one group had priority access to the fund. See 681 F.3d at 187. In In re Nat’l
Football League, a proposed class of retired NFL players alleging concussion-related injuries
was composed of both currently injured individuals and individuals at risk of future injury. See
307 F.R.D. at 376. To avoid a conflict between the two groups, the class was divided into two
subclasses, each with its own representative and counsel. See id. And in Navy Chaplaincy, the
named plaintiffs were deemed inadequate in part because their strategy to seek “wide-ranging
institutional reform” through declaratory and injunctive relief significantly lengthened the case,
and in doing so “repeatedly subordinated the proposed class members’ interests in prompt
adjudication[.]” 306 F.R.D. at 54. By contrast, in this case there is no separation within the class
as to relief sought.
Nonetheless, Defendants posit that “the central premise of Amchem remains relevant
here: plaintiffs with divergent interests on the critical goals of the litigation are inadequate.”
Defs.’ Reply at 9. Defendants argue that because she is at risk of eviction and “will not have to
live with the consequences of any policy decisions resulting from this matter[,]” Borum “now
has incentives to maximize her own interests at the expense of the class.” Defs.’ Mem. Supp. at
13. Defendants appear to believe this incentive would push Borum, as a “detached bystander[,]”
to seek her policy goals at all costs, regardless of class interests. See id. While Defendants offer
16 only vague assertions regarding the conflict between Borum’s policy objectives and the
objectives of the class, the Court can deduce how Defendants believe such a conflict could arise:
as in Navy Chaplaincy, where class representatives inadequately focused on their policy
objectives to the detriment of the potentially viable monetary claims of other class members, see
306 F.R.D. at 54, Borum could focus all her efforts on obtaining declaratory and injunctive relief
at the expense of compensatory damages, which she is less likely to receive than other residents.
But the Court is not persuaded that this potential conflict currently rises above the “speculative
or hypothetical,” Garza, 304 F. Supp. 3d at 158, especially given that Defendants provide no
new evidence 7 to suggest that class members might seek a different form of relief from Borum.
Conversely, the Court sees another potential conflict regarding Borum’s recovery
incentives. The courts in Amchem Prods., Dewey, and In re Nat’l Football League dealt with
differences in incentives as to the timing of recovery amongst class members. While not directly
comparable, here the pending eviction proceedings against Borum create a similar time
constraint with respect to her recovery: while she may ultimately defeat the eviction, there is a
non-negligible chance that she will no longer be a part of the class within a relatively short time
frame. Because of the risk of eviction, Borum is thus incentivized to obtain relief in this
litigation as soon as possible, in order to ensure at least some recovery. This incentive could
alter her position in any settlement negotiations with Defendants, and push her to seek a
resolution that guarantees at least some recovery for her, at the expense of a better resolution in
the future for the class. But as with the policy objectives-based conflict above, the Court is not
7 Defendants briefly reassert the argument made at the certification stage that there is “substantial evidence that many residents . . . disagree with the objectives of this litigation[.]” Defs.’ Mem. Supp. at 14. But as discussed in the Court’s opinion certifying the class, the “evidence” put forward by Defendants does not support that conclusion. See Borum, 324 F.R.D. at 17.
17 entirely convinced that this potential conflict, alone, is sufficiently tangible to prevent Borum
from adequately representing the class. Unlike in cases involving different types of injury,
where there is a clear demarcation between plaintiffs with current injuries and plaintiffs with a
future risk of injury, here it is unclear whether the eviction will ultimately succeed, and therefore
just how much the time constraint posed by the eviction proceeding truly affects Borum’s
incentives. Because it finds Defendants’ second argument regarding Borum’s changed
incentives persuasive, the Court does not discuss the issue further.
Defendants next argue in their reply that because Borum is now the subject of a pending
eviction action, she is the subject of a unique defense that warrants her disqualification as a class
representative. See Defs.’ Reply at 6, 9–10. Defendants argue 1) that the pending eviction
could incentivize Borum to focus the proceedings in this Court away from issues common to the
class and towards her individual eviction defense, id. at 9, and 2) that defending against the
eviction more generally changes Borum’s ‘“incentives in terms of how much time, energy, and
money she is willing to spend pursuing the claim[,]’” id. at 6 (quoting In re Schering Plough
Corp. Litig., 509 F.3d 585, 602 (3d Cir. 2009)).
First, Defendants explain that “[w]here ‘unique defenses could conceivably become the
focus of the entire litigation and divert much of [the class representative’s] attention from the suit
as a whole, the remaining members of the class could be severely disadvantaged.’” Id. at 9
(citing Zenith Labs, Inc. v. Carter-Wallace, Inc., 530 F.2d 508, 512 (3d Cir. 1976)). Defendants
conclude that Borum’s “unique interest in defending against eviction could conceivably become
her sole focus in this litigation,” thus rendering her an atypical plaintiff and an inadequate
representative. Id.
18 The Court is unconvinced that the potential eviction incentivizes Borum to change her
strategy in this litigation. Defendants are correct that courts typically reject as inadequate
proposed class representatives who are the subject of unique defenses because the proposed
representatives would have to direct at least some of their litigation efforts to defeating those
defenses, disadvantaging the members of the class not subject to them. See, e.g., Zenith Labs,
530 F.2d at 512; Koos v. First Nat’l Bank of Peoria, 496 F.2d 1162, 1164–65 (7th Cir. 1974);
Fleck v. Cablevision VII, Inc., 763 F. Supp. 622, 626–27 (D.D.C. 1991); Weber v. Turner, 92
F.R.D. 749, 751 (D.D.C. 1981). However, these cases typically involve circumstances where the
proposed class representative faces unique defenses directly linked to the claims asserted in the
class action, rather than the circumstances here where Borum is faced with separate legal
proceedings that could operate to deny recovery, in a sort of indirect defense to the claims in the
class action. In Zenith Labs, the proposed representative was subject to a res judicata defense on
the claims he purported to represent the class on. See Zenith Labs, 530 F.2d at 512. Similarly in
Weber, the proposed class representative in an employment discrimination case had a “highly
unusual” employment history and the defendant disputed her status as a “professional
employee[,]” when she purported to represent a class of women professional employees at the
CIA. See Weber, 92 F.R.D. at 751. The district court explained that “an individual plaintiff
should not be allowed to represent a class where the litigation will concentrate on issues unique
to the named plaintiff.” Id. (citing Koos, 496 F.2d 1162). As the Seventh Circuit explained in
Koos, the rationale behind denying certification in these cases is that by certifying a class with a
plaintiff subject to unique defenses, “much of the [plaintiff’s] effort would . . . necessarily be[]
devoted to [its] own problems[,] . . . [which] may well . . . result[] in less attention to the issue
which would be controlling for the rest of the class.” 496 F.2d at 1165.
19 But here, Borum is not subject to unique defenses that could become the focus of this
litigation. She brings FHA and DCHRA claims similar to those of other class members, and
Defendants do not argue that any defense applies on her claims that does not apply to other class
members’ claims. Rather, she is separately sued in an eviction action in D.C. Superior Court that
may ultimately operate to preclude recovery in this case. This eviction “defense” will be
litigated in a separate proceeding, where Borum is represented by separate counsel. See Docket,
United States v. Borum, 2018 LTB 20834 (D.C. Sup. Ct.) (noting Borum’s representation by
attorneys from Neighborhood Legal Services). There is therefore no risk that defending against
eviction could become Borum’s “sole focus in this litigation[.]” Defs.’ Reply at 9.
On the other hand, a second, closely-related argument alluded to by Defendants bears
closer scrutiny. Defendants point to In re Schering, where the Third Circuit explained that a
plaintiff potentially barred from recovery through a unique defense “may have different
incentives in terms of how much time, energy, and money she is willing to spend pursuing the
claim.” 589 F.3d at 602; see also Mwantembe v. T.D. Bank, N.A., 268 F.R.D. 548, 559 (E.D. Pa.
2010) (similarly noting that “if the named class members are subject to unique defenses, they
may have little, if any, incentive to spend the time, energy and money pursuing the claim”); In re
Bell S. Corp. ERISA Litig., No. 1:02-CV-2440-JOF, 2005 WL 8154294, at *9 (N.D. Ga. Sept.
30, 2005) (finding that named plaintiffs subject to unique defenses “cannot bring claims on
behalf of the class with the same vigor and interest as someone [not subject to a unique
defense]”).
The Court finds the reasoning of In re Schering applicable here. Unlike in most
situations involving unique defenses, the potential eviction affecting Borum will have little
impact on the issues litigated in this case. But the eviction action is still likely to significantly
20 occupy Borum’s time and energy, diverting at least some resources away from this litigation.
And more importantly, the central rationale behind the argument recognized in In re Schering
and In re Bell S. Corp. is that the potentially valid unique defenses a named class plaintiff is
subject to incentivizes that plaintiff against pursuing her claims as vigorously as she could, given
the obstacles to recovery. Here, Borum is facing the potential loss of her home, so the eviction
action is likely to be a significant focus of her attention as it unfolds. And an eviction would
exclude her from the class and bar recovery entirely. As in Mwantembe, she currently has “little
. . .incentive to spend . . . time, energy and money pursuing th[is] claim[,]” 268 F.R.D. at 559,
when more pressing legal proceedings with significant consequences, including barring her
recovery in this action, are ongoing in parallel. At the very least, Borum “cannot bring claims on
behalf of the class with the same vigor and interest” as a Brookland Manor resident who is not
currently facing eviction. In re Bell, 2005 WL 8154294, at *9. Moreover, given the litigation
leverage Defendants hold over her that is unique to her but not other class members, Borum
could be incentivized to seek a settlement that preserves her tenancy at the expense of the other
class members’ interests. She is accordingly not an adequate class representative.
B. Decertification Is Not an Appropriate Remedy
The Court next considers whether Borum’s inadequacy as a class representative warrants
decertification. Defendants contend that decertification “is the appropriate step” because “it is
unlikely that a substitute will be found.” Defs.’ Mem. Supp. at 14. Plaintiffs reply that class
decertification is not an appropriate remedy when, as here, the class representative is found to be
inadequate after certification but no additional circumstances warranting decertification exist.
See Pls.’ Mem. Opp’n at 5–6. The Court agrees.
21 The Supreme Court has explained that upon certification of a class, “the class of
unnamed persons described in the certification acquire[s] a legal status separate from the interest
asserted by [the representative].” Sosna v. Iowa, 419 U.S. 393, 399 (1975). While this Circuit
has not authoritatively spoken on the issue, multiple circuit courts have correspondingly held
that, following disqualification of a class representative, the next step is to provide for
substitution rather than decertification. See, e.g., Walters v. Edgar, 163 F.3d 430, 432 (7th Cir.
1998) (noting that “the proper course” when an event occurring after certification disqualifies the
named plaintiff is substitution); Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608, 617–
18 (5th Cir. 1983) (explaining that when a class representative is disqualified as inadequate, “the
appropriate step is appointment of new representatives from the existing class, not
decertification”); Sirota v. Solitron Devices, Inc., 673 F.2d 566, 572 (2d Cir. 1982) (noting that a
district court “need not decertify whenever it later appears that the named plaintiffs were . . .
inappropriate class representatives”).
Here, Defendants make several arguments for going beyond substitution and for
decertifying the class. None are persuasive. First, Defendants argue that inadequacy of a class
representative “regularly results in decertification.” Defs.’ Reply at 10. But the cases
Defendants cite in support of this proposition are easily distinguishable as involving
circumstances very different from the inadequacy issue in this case. See Georgine v. Amchem
Prods., Inc., 83 F.3d 610, 630–31 (3d Cir. 1996) (providing for decertification based on
fundamental conflict of interest between two subgroups of class members rather than between a
single class representative and rest of the class); Key v. Gillette Co., 782 F.2d 5, 7 (1st Cir. 1986)
(providing for decertification because of inadequate representation by class counsel rather than
22 by class representative). 8 Second, Defendants argue that, given the “substantial evidence that
many residents . . . disagree with the objectives of this litigation . . . [,] it is unlikely that a
substitute will be found.” Defs.’ Mem. Supp. at 14. Because Defendants offer no evidence
beyond that presented in their opposition to the motion for certification, and rejected by the
Court in its opinion granting the motion, see Borum, 324 F.R.D. at 17, the Court agrees that this
is “nothing more than a thinly-veiled attempt to revisit this Court’s prior certification decision[.]”
Pls.’ Mem. Opp’n. at 6. Finally, Defendants argue that “[c]lasses are decertified where class
counsel has made no effort to find a replacement representative.” Defs.’ Reply at 10. But of
course here, the Court is only just now finding that the current class representative is inadequate,
so Plaintiffs have not yet had the opportunity to seek a replacement. Defendants’ argument is
premature, and the Court rejects it as well. Instead, the Court will provide a reasonable period of
time for Plaintiffs to seek a replacement representative.
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Decertify the Class is DENIED.
Plaintiffs shall have thirty (30) days to find a replacement representative for Adriann Borum,
who the Court finds is not an adequate representative for the class. Defendants’ Motion to Stay
Discovery is DENIED as moot. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: January 7, 2019 RUDOLPH CONTRERAS United States District Judge
8 Defendants also cite to Mayfield v. Meese, 704 F. Supp. 254, 258 (D.D.C. 1988). But the section of the opinion Defendants point to involves the District Court’s decision not to expand a class rather than to decertify the class. See id. The opinion is inapposite to the argument Defendants make here.