IN THE FOR THE SECOND CIRCUIT >> JANE DOE 1, on behalf of themselves and all similarly situated women, and

Transcription

1 CV IN THE United States Court of Appeals FOR THE SECOND CIRCUIT >> JANE DOE 1, on behalf of themselves and all similarly situated women, and >> Plaintiff-Appellant, JANE DOE 2, on behalf of themselves and all similarly situated women, v. Plaintiff, THE CITY OF NEW YORK, and Defendant-Cross-Defendant-Appellee, BENNY SANTIAGO, Defendant-Cross-Claimant-Appellee. On Appeal from the United States District Court for the Southern District of New York (New York City) BRIEF FOR AMICUS CURIAE THE NEW YORK CITY BAR ASSOCIATION IN SUPPORT OF PLAINTIFF-APPELLANT Allegra Glashausser CHAIR, CORRECTIONS AND COMMUNITY REENTRY COMMITTEE THE NEW YORK CITY BAR ASSOCIATION Attorneys for Amicus Curiae The New York City Bar Association 42 West 44th Street New York, New York

2 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, Amicus Curiae certifies that it does not have a parent corporation and that no publicly held corporation owns 10% or more of its stock. i

3 TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT... i TABLE OF AUTHORITIES... iii CONSENT OF THE PARTIES... 1 INTEREST OF AMICUS CURIAE... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 I. The District Court s application of Federal Rule of Civil Procedure 23 departs from settled precedent in civil rights class actions... 3 A. The fluidity of the population that constitutes the class does not mean the class is not ascertainable... 3 B. The fact that the representative plaintiffs are seeking damages does not mean that they lack commonality or typicality, or that they will fail to fairly and adequately protect the interests of the class... 5 C. The concept of plaintiff opt-out has no bearing on a civil rights class action predicated on Federal Rule of Civil Procedure 23(b)(2)... 7 II. The District Court s decision effectively leaves plaintiffs with no avenues of redress to seek institutional reform and systemic change... 8 CONCLUSION CERTIFICATE OF COMPLIANCE WITH FRAP 32(A) ii

4 TABLE OF AUTHORITIES Page(s) Cases Amchem Prod., Inc. v. Windsor, 521 U.S. 591 (1997)... 9 Augustin v. Jablonsky (In re Nassau County Strip Search Cases), 461 F.3d 219 (2d Cir. 2006)... 5 Biediger v. Quinnipiac Univ., No. 09 Civ. 621, 2010 WL (D. Conn. May 20, 2010)... 4 Daniels v. City of New York, 198 F.R.D. 409 (S.D.N.Y. 2001)... 3, 5, 7 Figueroa v. Dean, 2002 WL (S.D.N.Y. Oct. 30, 2002)... 8 Finch v. New York State Office of Children & Family Servs., 252 F.R.D. 192 (S.D.N.Y. 2008)... 4 German v. Federal Home Loan Mortgage Corp., 885 F.Supp. 537 (S.D.N.Y.1995)... 5 Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988)... 3 In re Visa/Mastermoney Antitrust Litig. v. Visa, United States, 280 F3d. 124 (2d Cir. 2001)... 6 Ingles v. City of New York, No. 01 Civ , 2003 WL (S.D.N.Y. Feb. 20, 2003)... 5 Ingraham v. Wright, 430 U.S. 651 (1977)... 5 Jones-Bey v. Caso, 535 F.2d 1360 (2d Cir. 1976)... 8 Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997)... 4 iii

5 Mental Disability Law Clinic v. Hogan, No. 06 Civ. 6320, 2008 WL (E.D.N.Y. 2008)... 4 Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970)... 9 Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968)... 9 Simer v. Rios, 661 F.2d 655 (7th Cir.1981)... 4 Sosna v. Iowa, 419 U.S. 393 (1975)... 4 Rules Federal Rule of Civil Procedure Rule , 4, 6 Federal Rule of Civil Procedure Rule 23(a)... 3 Federal Rule of Civil Procedure Rule 23(a)(4)... 6 Federal Rule of Civil Procedure Rule 23(b)(2)...passim Local Rule of Appellate Procedure 29.1(b)... 1 Other Authorities Brandon Garrett, Aggregation and Constitutional Rights, 88 NOTRE DAME L. REV. 593 (2012) Cindy Struckman-Johnson, David Struckman-Johnson, Lila Rucker, Kurt Bumby, Stephen Donaldson, Sexual Coercion Reported by Men and Women in Prison, THE JOURNAL OF SEX RESEARCH, Vol. 33, Iss. 1, Herbert Newberg, Alba Conte & William Rubenstein, Newberg On Class Actions 1:8 (5th Ed. 2011).... 9, 10 Marjorie R. Sable, Fran Danis, Denise L. Mauzy, Sarah K. Gallagher, Barriers to Reporting Sexual Assault for Women and Men: Perspectives of College Students, JOURNAL OF AMERICAN COLLEGE HEALTH, Vol. 55, Iss. 3, iv

6 Maureen Carroll, Class Action Myopia, 65 DUKE L.J. 843 (2016)... 9 Newberg & Conte, Newberg On Class Actions, (3rd Ed. 1992) Richard Emery and Ilaan Margalit Maazel, Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution, 28 FORDHAM URB. L.J. 587 (2000) Summary Order Denying Motion for Class Certification, 15 Civ. 3849, Jan. 5, , 4, 11 v

7 CONSENT OF THE PARTIES No party withholds consent or objects to the filing of this amicus curiae brief by the New York City Bar Association. INTEREST OF AMICUS CURIAE The New York City Bar Association ( the Association ) was founded in 1870 and has been dedicated to maintaining the highest ethical standards of the profession, promoting reform of the law, and providing service to the profession and the public. 1 With over 24,000 members, the Association is among the nation s largest and oldest bar associations. The Association has long been committed to the fair, efficient, and just administration of the laws. The Association is interested in the vindication of civil rights for all persons and in promoting humane conditions of confinement in jails and prisons. Through its standing committees, the Association has issued numerous letters, reports, and amicus curiae briefs on civil procedure, civil rights, and conditions of confinement. The Association has consistently stressed the importance of access to courts and of fair procedures. 1 Pursuant to Local Rule of Appellate Procedure 29.1(b), Amicus states that: (a) No party's counsel authored any part of this brief in whole or in part; (b) No party's counsel contributed money that was intended to fund preparing or submitting this brief; and (c) No person contributed money that was intended to fund preparing or submitting this brief.

8 SUMMARY OF ARGUMENT The District Court s decision departs from settled precedent in civil rights class actions. Classes have been certified in similar actions seeking the protection of civil rights for those in public institutions, including jails. The fact that the representatives of the putative class are also seeking damages does not make them atypical or unsuitable to represent the class. The fluidity of the putative class women who are or will be held at the Rose M. Singer Center does not make it unascertainable; on the contrary, each and every member is known or will be known to defendant City of New York. Furthermore, the nature of the harm plaintiffs seek to address, sexual abuse, does not justify a different result from civil rights actions targeting excessive force, in which similarly situated classes of people who are (or will be) in the custody of correctional institutions have been certified. The inability of unidentified plaintiffs to opt out has no bearing in a civil rights class action seeking institutional reform. The District Court s rationale, if accepted, would preclude anyone seeking to protect civil rights in public institutions through injunctive relief from bringing claims aimed at institutional reform, unless the individual is willing, in order to represent the class, to forfeit her right to seek damages for harm she has suffered. This is an untenable and, indeed, nonsensical result that would discourage individuals who have been harmed from pursuing institutional reform. 2

9 ARGUMENT I. The District Court s application of Federal Rule of Civil Procedure 23 departs from settled precedent in civil rights class actions. In denying class certification, the District Court erred in three respects: finding that the class was not properly ascertainable, that the representative plaintiffs lack commonality and typicality in their claims, 2 and that the representative plaintiffs will not fairly and adequately protect the interests of the class. 3 Furthermore, the District Court s concern that future, unidentified plaintiffs could be precluded from suing for damages 4 has no basis in the law. A. The fluidity of the population that constitutes the class does not mean the class is not ascertainable. Although the ascertainability of a class is not a prerequisite to a class action under Federal Rule of Civil Procedure 23(a), it is a judicially-created requirement premised on the need to know who is in the class and who is out. 5 The fact that the 2 Although the District Court s order states that the named plaintiffs, who also seek monetary damages, lack typicality and commonality in their claims (Summary Order Denying Motion for Class Certification, 15 Civ (AKH), Jan. 5, 2016, p.1) this phrasing blurs the difference between the typicality and commonality requirements in Fed. R. Civ. P. 23(a). See Daniels v. City of New York, 198 F.R.D. 409, 417 (S.D.N.Y. 2001), citing Hassine v. Jeffes, 846 F.2d 169, 177 n.4 (3d Cir. 1988) ( [C]ommonality like numerosity evaluates the sufficiency of the class itself, and typicality like adequacy of representation evaluates the sufficiency of the named plaintiff ). 3 Summary Order Denying Motion for Class Certification, 15 Civ (AKH), Jan. 5, 2016, p.1. 4 Id. at 2. 5 This requirement is also called definiteness. See Daniels v. City of New York, 198 F.R.D. 409, 414 (S.D.N.Y. 2001) ( In addition to the requirements of Rule 23(a) and (b)(2),the 3

10 class here is defined as every woman who is or will be incarcerated at the Rose M. Singer Center 6 is no obstacle to making such a determination. This Circuit s precedents recognize that the concept of ascertainability is flexible, especially when plaintiffs seek institutional reform. 7 Plaintiffs are not required to name, at the outset, every person who will become a member of the class, and classes composed of similarly fluid populations have been certified in this and other circuits. 8 Moreover, when the class is defined as present and future inmates of a city jail, the task of ascertaining the class members could hardly be easier because every inmate becomes known to the defendant city upon admission to the jail. 9 proposed class must also meet a requirement not contained within the express provisions of Rule 23 the class must be sufficiently definite citing Simer v. Rios, 661 F.2d 655, 669 (7th Cir.1981) ( It is axiomatic that for a class action to be certified a class must exist ). 6 Transcript of oral arguments on motion to certify the class, 15 Civ (AKH), Jan. 4, 2016, p See Marisol A. v. Giuliani, 126 F.3d 372, (2d Cir. 1997) (certifying a class of children who are or will be at risk of neglect or abuse and whose status is or should be known to a City agency; Rule 23(b)(2) satisfied because the plaintiffs seek injunctive relief and they predicate the lawsuit on the defendants acts and omissions with respect to the class). 8 See Biediger v. Quinnipiac Univ., No. 09 Civ. 621, 2010 WL , at *7 (D. Conn. May 20, 2010) (certifying a class of all present and future female students who want to end Quinnipiac University s sex discrimination ); Mental Disability Law Clinic v. Hogan, No. 06 Civ. 6320, 2008 WL , at *18 (E.D.N.Y. 2008) (certifying a class of all individuals who (1) suffer from mental illness and explaining that because only declaratory and injunctive relief is sought, individual assessments of disability need not be made ); Finch v. New York State Office of Children & Family Servs., 252 F.R.D. 192, 203 (S.D.N.Y. 2008) (injunctive classes need not be precisely defined). 9 Analogously, in Sosna v. Iowa, 419 U.S. 393 (1975), the certified class was defined as persons residing in Iowa for less than a year who desire to initiate divorce actions. The members of this 4

11 B. The fact that the representative plaintiffs are seeking damages does not mean that they lack commonality or typicality, or that they will fail to fairly and adequately protect the interests of the class. The fact that Jane Doe 1 and Jane Doe 2 asserted damages claims for sexual assault does not disqualify them from serving as representatives of a class seeking injunctive relief. 10 In other jail-related cases, courts in this Circuit have certified classes in which plaintiffs acted as class representatives while also pursuing their own damages claims. 11 Although the District Court s order states that the named plaintiffs, who also seek monetary damages, lack typicality and commonality in their claims, neither the Summary Order nor the transcript of oral argument reflects any direct statement by the District Court about why the representative plaintiffs claims are not typical or why there are no common questions of law or class were unnamed and unknown at the outset, but would become known to the state upon filing for divorce. 10 See, e.g., Ingraham v. Wright, 430 U.S. 651, 653 (1977) (decision involved a class action certified pursuant to Rule 23(b)(2), where plaintiffs also asserted claims for individual damages; class was defined as: All students of the Dade County School system who are subject to the corporal punishment policies issued by the Defendant, Dade County School Board ). 11 See Ingles v. City of New York, 01 Cv , 2003 WL , at *6 (S.D.N.Y. Feb. 20, 2003) (finding that lead plaintiffs are entitled to seek a separate cause of action for damages and to serve as class representatives because regardless of the relief sought, the proposed lead plaintiffs' claims rest on the same theory of liability as do the claims of other class members. ); Daniels v. City of New York, 198 F.R.D. 409, 416 (S.D.N.Y. 2001) ( The fact that the named plaintiffs are seeking damages on their own behalf does not make them inappropriate as class representatives. )(citing German v. Federal Home Loan Mortgage Corp., 885 F.Supp. 537, 555 (S.D.N.Y.1995)); Augustin v. Jablonsky (In re Nassau County Strip Search Cases), 461 F.3d 219, 229 (2d Cir. 2006) ( Although defendants have conceded liability to these plaintiffs, there is no guarantee that they would concede liability in a case or series of cases involving significantly higher damages. ). 5

12 fact. 12 Other than speculation that the representative plaintiffs would do better to seek damages individually, unencumbered by the class they wish to represent, 13 the District Court identified no reason why they are legally impermissible representatives. The District Court implied that a conflict could arise between the representative plaintiffs and the rest of the class, but speculative conflict is not an appropriate consideration at the class certification stage. 14 To decide that the representative plaintiffs are unsuitable, as the District Court did here, is to deprive a class of those plaintiffs who are most harmed by the illegal conduct and therefore most motivated to represent the class. Such a result is illogical. The District Court applied a standard that goes far beyond what Rule 23 requires and what courts have required for similarly situated plaintiffs in civil rights class actions. 12 See n. 2, supra. 13 At oral argument the District Court stated, And if they can advance their claims for money, why should they want to slow it up and complicate it by class procedures? They don t have the motivation, it seems to me [...] to stick with a class action when they can do a lot faster and better jobs taking care of themselves and getting a big monetary recovery. Transcript of oral arguments on motion to certify the class, January 4, 2016, p In re Visa/Mastermoney Antitrust Litig. v. Visa, United States, 280 F3d. 124, 145 (2d Cir. 2001), citing Newberg & Conte, Newberg On Class Actions, (3rd Ed. 1992) 3.26 at ( The conflict that will prevent a plaintiff from meeting the Rule 23(a)(4) prerequisite must be fundamental. ). 6

13 C. The concept of plaintiff opt-out has no bearing on a civil rights class action predicated on Federal Rule of Civil Procedure 23(b)(2) The District Court s stated concern that unidentified plaintiffs who may be subject to the harm addressed in this action have no ability to opt out of the class is a misapprehension of Rule 23(b)(2). Under subdivision (b)(2), a class action may be maintained if the prerequisites to a class action are met and the party opposing the class has acted or refused to act on grounds generally applicable to the class. 15 Subdivision (b)(2) is intended to reach situations where a party has acted (or refused to act) with respect to a class, and final relief of an injunctive nature that determines the legality of the behavior with respect to the class as a whole is appropriate. 16 Class actions under subdivision (b)(2) differ from other types of class actions that seek class-wide damages and in which the ability to opt out makes sense for individual plaintiffs who may prefer to pursue their damages claims separately. In contrast, in a class certified under subdivision (b)(2), which is focused on the opposing party s conduct, all persons comprising the class become mandatory members. 17 Thus, no opt-out provision exists, nor is there any reason that such provision would be necessary. 15 Fed. R. Civ. P. 23(b)(2). 16 Advisory Committee Notes to Fed. R. Civ. P. 23(b)(2). 17 Daniels v. City of New York, 198 FRD 409, 415 (S.D.N.Y. 2001). 7

14 The District Court s related concern that future plaintiffs complaining of sexual abuse in New York City jails will be precluded from bringing their own actions for monetary damages is also unfounded. Second Circuit jurisprudence establishes that an individual plaintiff s claim for monetary damages is not precluded by a class action where the disposition of the class action did not by its terms dispose of individual damage claims. 18 II. The District Court s decision effectively leaves plaintiffs with no avenues of redress to seek institutional reform and systemic change. If the District Court s rationale for denying class certification stands, class action redress of sexual abuse in jails and other public institutions will become extremely onerous. If class representatives such as Jane Doe 1 and Jane Doe 2 are ruled out because they seek damages in addition to injunctive relief, it is hard to imagine who could be an appropriate class representative. The search for perfect class representatives who could meet the District Court s standard would inevitably add time and expense to such litigation. And this would, in turn, tend to limit the 18 Figueroa v. Dean, 2002 WL , *3 (S.D.N.Y. Oct. 30, 2002) (citing Jones-Bey v. Caso, 535 F.2d 1360, (2d Cir. 1976) (damages case concerning jail conditions not precluded by earlier injunctive class action concerning same conditions). 8

15 possibility of class litigation, even for cases addressing blatant civil rights violations. 19 If denial of class certification becomes common in cases where a relatively small number of plaintiffs have claims for damages but wish to represent a class seeking injunctive relief, such plaintiffs will be forced to sue individually. This outcome would run contrary to the purpose of the Rule 23(b)(2) class action. 20 As the Supreme Court has stated, Rule 23(b)(2) was designed for civil rights cases against parties charged with unlawful, class-based discrimination. 21 One of the chief virtues of the class action is that it deters misconduct by harnessing private attorneys general to assist in the enforcement of important public policy. 22 As the Supreme Court has recognized, public agencies are unable to enforce the laws alone because they simply cannot detect and deter all wrongdoing. 23 Robust private enforcement via class actions is important because, 19 See Maureen Carroll, Class Action Myopia, 65 DUKE L.J. 843, 851 (2016) ( Increases in the transaction costs associated with injunctive civil-rights class actions can only further suppress this type of class litigation. ). 20 See Advisory Committee Notes to Fed. R. Civ. P. 23(b)(2) ( Illustrative [of Subdivision (b)(2) actions] are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration. ). 21 Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 614 (1997). 22 Herbert Newberg, Alba Conte & William Rubenstein, Newberg On Class Actions 1:8 (5th Ed. 2011). 23 Id. (citing Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401 (1968); Mills v. Electric Auto-Lite Co., 396 U.S. 375, (1970)). 9

16 in certain circumstances, private enforcement may be superior to public enforcement. 24 Specifically, private enforcement may be more efficient than public enforcement, private enforcers may be less conflicted than public agencies, and private enforcers may be less politically restrained than public enforcers. 25 The District Court s vision of how sexual abuse plaintiffs in correctional institutions ought to proceed contravenes the purpose and protections provided by the class action format and ignores reality. There is a growing body of evidence demonstrating that victims of sexual abuse are extremely hesitant to report it. 26 Reporting is even less common among women involved in the criminal justice system. 27 Without recourse to a Rule 23(b)(2) class action, women who have endured sexual victimization while incarcerated and still have the courage to take action must go it alone, hoping to interest an attorney in the case. 24 Herbert Newberg, Alba Conte & William Rubenstein, Newberg On Class Actions 1:8 (5th Ed. 2011). 25 Id. 26 See, e.g., Marjorie R. Sable, Fran Danis, Denise L. Mauzy, Sarah K. Gallagher, Barriers to Reporting Sexual Assault for Women and Men: Perspectives of College Students, JOURNAL OF AMERICAN COLLEGE HEALTH, Vol. 55, Iss. 3, See, e.g., Cindy Struckman-Johnson, David Struckman-Johnson, Lila Rucker, Kurt Bumby, Stephen Donaldson, Sexual Coercion Reported by Men and Women in Prison, THE JOURNAL OF SEX RESEARCH, Vol. 33, Iss. 1,

17 Despite the District Court s statements about million-dollar judgments, 28 it is far from clear that such cases promise awards large enough to incentivize attorneys. Thus, rather than facilitating individual plaintiffs access to justice, the District Court s rationale would have the opposite effect: victims of sexual abuse would rarely bring suit on their own behalf and, when they do, those isolated cases could not be expected to bring about systemic institutional reform. 29 Such suits for damages are less likely than injunctive class actions to affect the defendant city s policies and practice. 30 The withering of the civil rights class action would be detrimental to governments as well as plaintiffs, because class actions help to avoid unpredictable and burdensome costs of repeated, individual litigation. 31 When there is ongoing harm to a vulnerable population, it is bad public policy to channel those who have suffered the harm toward suits for damages after the fact, excluding efforts to prevent future harm by way of injunctions. If 28 Transcript of oral arguments on motion to certify the class, 15 Civ (AKH), Jan. 4, 2016, page See Brandon Garrett, Aggregation and Constitutional Rights, 88 NOTRE DAME L. REV. 593, 597 (2012) (noting that individual injunctions are not clearly enforceable by non-parties, making class actions highly preferable when challenging statutes, policies, and practices ). 30 See Richard Emery and Ilaan Margalit Maazel, Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution, 28 FORDHAM URB. L.J. 587 (2000) (noting that a city s representation and indemnification of its law enforcement employees insulates those employees from the consequences of their actions). 31 See Garrett, supra, at

18 permitted to stand, the District Court s decision would be tantamount to silencing women subject to past, present and future sexual abuse at Rikers Island. CONCLUSION For the foregoing reasons as well as those set forth in Plaintiffs-Appellants brief, the District Court s decision should be overturned in its entirety. Dated: New York, New York May 13, 2016 Respectfully submitted, /s/ Allegra Glashausser Alex Lesman Of Counsel Chair, Corrections and Community Reentry Committee The New York City Bar Association 42 West 44th Street New York, New York

19 CERTIFICATE OF COMPLIANCE WITH FRAP 32(A) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 3,110 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word in Times New Roman, 14 point font. Dated: New York, New York May 13, 2016 Respectfully submitted, /s/ Allegra Glashausser Alex Lesman Of Counsel Chair, Corrections and Community Reentry Committee The New York City Bar Association 42 West 44th Street New York, New York