Pitt v. City of Portsmouth

221 F.R.D. 438, 58 Fed. R. Serv. 3d 466, 2004 U.S. Dist. LEXIS 7435, 2004 WL 953421
CourtDistrict Court, E.D. Virginia
DecidedJanuary 20, 2004
DocketNo. CIV.A. 2:02CV489
StatusPublished
Cited by2 cases

This text of 221 F.R.D. 438 (Pitt v. City of Portsmouth) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pitt v. City of Portsmouth, 221 F.R.D. 438, 58 Fed. R. Serv. 3d 466, 2004 U.S. Dist. LEXIS 7435, 2004 WL 953421 (E.D. Va. 2004).

Opinion

MEMORANDUM OPINION AND ORDER

JACKSON, District Judge.

Before the Court are the United States Court of Appeals for the Fourth Circuit’s (“Fourth Circuit”) order remanding the above-captioned case to the Court for reconsideration of class certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure and Defendant Portsmouth Partners of Virginia, LLP’s (“PPV”) Motion to Decertify or, Alternatively, to Remove PPV as a Class Defendant.1 The Court has conducted a hearing on the matter and thoroughly reviewed the briefs and supporting memoranda regarding class certification. For the reasons set forth below, PPV’s Motion to Decer-tify or, Alternatively, to Remove PPV as a Class Defendant is DENIED.

I. FACTS AND PROCEDURAL HISTORY

Plaintiffs are former residents of Fairwood Homes, a housing complex built in the 1940’s as temporary war housing. Compl. 1137. Fairwood Homes originally consisted of 1500 single-family homes, and is currently owned by defendant Portsmouth Partners of Virginia, L.L.P. (“PPV”). Id. Plaintiffs assert that Fairwood Homes and the area surrounding it has remained segregated for several years. Compl. H179. Plaintiffs believe that the City of Portsmouth (“Portsmouth”) and Portsmouth Redevelopment and Housing Association (“PHRA”) have not disestablished official segregated housing policies nor have they built or developed affordable housing in non-racially impacted areas. Compl. H179. Plaintiffs allege that, over the years, Portsmouth has provided fewer municipal services [441]*441to the predominantly African-American Fair-wood Homes and surrounding area than it has to predominantly white areas of Portsmouth. Compl. H11138-42. In addition, Plaintiffs contend that PPV has discriminated against African-American residents of Fairwood Homes by subjecting them to different treatment in its maintenance of particular units and rental policies, among other things. Compl. HIT 90-92. Plaintiffs allege that poor maintenance and Portsmouth’s refusal to allow PPV to redevelop the property caused Fairwood Homes to deteriorate to a condition where continued occupancy was impossible. Compl. H154.2 Plaintiffs claim that such conduct amounts to intentional discrimination based on race. Compl. H141.

Since 1989, the City of Portsmouth (“Portsmouth”) has had official plans to purchase and redevelop Fairwood Homes. Compl. II41. Initially, Portsmouth planned to build a race track on the property. Plaintiffs claim that because of these plans, Portsmouth discouraged and prevented PPV from renovating or otherwise redeveloping Fair-wood Homes. Id. However, unable to obtain funding for the race track, Portsmouth began to consider alternative uses for the site and Portsmouth and Portsmouth Redevelopment and Housing Authority (“PHRA”) hired a consultant to complete a Market and Feasibility Study for commereial/industrial development of the site. Compl. 1143. Early in the redevelopment planning process, PHRA recommended that, to save money, Portsmouth not offer Fairwood home residents relocation benefits, but rather rely on evictions and turnover to remove residents from complexes.3 Compl. H 80. Based in part upon PHRA’s assessment and recommendation, Plaintiffs conclude and allege that Defendants, acted to “intentionally deprive the residents [of Fairwood Homes] of their Constitutional and statutory rights by displacing them knowing their actions would have a disparate impact on African-Americans, by intentionally excluding them from Portsmouth ... and by otherwise making housing unavailable ... based on their race.” Compl. 1153.

In 1997, Portsmouth and PPV executed a Master Development Agreement. Compl. If 48. The Development Agreement allowed Portsmouth to purchase parcels 1 and 2 of Fairwood Homes immediately and granted Portsmouth options to purchase parcels 3, 4A, and 4B of the Fairwood Homes community at later dates. Id. Plaintiffs allege that “[a]s a result of the 1997 Master Development Agreement and Portsmouth’s purchase of the first two parcels of the Fairwood Homes property, approximately 450 resident families, who were predominantly African-American, were evicted from their homes and the property was cleared of all housing units.” Compl. 1151. Plaintiffs further claim that the displaced Fairwood Home residents did not receive any relocation benefits. Id.

On or about October 9, 1998, Portsmouth and the City of Norfolk (“Norfolk”) submitted a joint application for a federal Empowerment Zone (“EZ”) designation for portions of both cities.4 One of the goals in the [442]*442application was to “leverage” funds that Portsmouth would receive to further redevelopment plans, including the purchase of Fair-wood Homes. Compl. 1158. In 1999, the United States Department of Housing and Urban Development (“HUD”) granted the EZ designation for an area that included Fairwood Homes and awarded Norfolk and Portsmouth a $100 million grant for activities and programs within this EZ designation area. Compl. 1156. Empowerment 2010, a non-profit organization, was created and assumed the task of implementing the cities’ strategic plan. Compl. H 57.

On May 28, 2002, PPV issued termination notices to all of the remaining residents and completed the eviction proceedings by early October. Compl. H11153-59. Plaintiffs have been denied relocation benefits or other assistance. Compl. H 51. Plaintiffs allege that PPV and Portsmouth have employed aggressive code enforcement in order to evict residents and redevelop Fairwood Homes as envisioned in 1997 Master Agreement and EZ grant agreement, and to deprive those residents of their constitutional and statutory rights. Compl. H156. Plaintiffs allege that such strict code enforcement was used in order to avoid paying required relocation benefits to evicted residents. Compl. 1111147-48. In addition, Plaintiffs assert that this code enforcement strategy was simply a pretext for discrimination against Plaintiffs. Id. Plaintiffs further contend that because of a lack of adequate, affordable housing in Portsmouth, Plaintiffs will likely be removed from Portsmouth altogether. Compl. H 43-45.

Plaintiffs filed their complaint on June 27, 2002. Initially, Plaintiffs’ Complaint consisted of eight counts alleging violations of the following: (1) Fair Housing Act (“FHA”) (2) Uniform Relocation Act (“URA”) (3) Housing and Community Development Act (“HCDA”) (4) Virginia Relocation Act (“VA Relocation Act”)5 (5) The Thirteenth Amendment (6) The Fourteenth Amendment (7) Title VI of the Civil Rights Act of 1964 (“Title VI”) and (8) Virginia Code § 55-222.6 On June 6, 2003, Plaintiffs moved for class certification pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, with a notice to opt out, akin to that provided by 23(b)(3) or, alternatively, pursuant to 23(b)(2) with the exception of compensatory damages, which they asserted should be certified under 23(b)(3). In the following weeks, Defendants filed briefs and supporting memoranda in opposition to Plaintiffs’ motion for class certification.

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221 F.R.D. 438, 58 Fed. R. Serv. 3d 466, 2004 U.S. Dist. LEXIS 7435, 2004 WL 953421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pitt-v-city-of-portsmouth-vaed-2004.