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noting that failure to move for class certification within the allocated time frame constitutes an intentional abandonment and waiver of all class allegations
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00-CV-0120E(Sc)
June 28, 2002
MEMORANDUM and ORDER
Plaintiffs David McLean and Debora Isherwood filed this putative class action on behalf of themselves and all others similarly situated February 4, 2000 naming as defendants Brian Wing, as Commissioner of New York State Department of Social Services ("NYSDSS"), Antonia C. Novello, as Commissioner of New York State Department of Health ("NYSDOH") (collectively the "state defendants") and Deborah Merrifield, as Commissioner of Erie County Department of Social Services ("ECDSS"). Plaintiffs seek a declaratory judgment that defendants have violated (1) Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (2) 28 C.F.R. 35.105, (3) section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), (4) the Due Process Clause of the Fourteenth Amendment, U.S. Const. Amend. XIV, § 1 and (5) the Equal protection Clause of the Fourteenth Amendment, U.S. Const. Amend. XIV, § 1, by failing to provide reasonable accommodations to mentally retarded persons applying for and recertifying their respective eligibilities for public benefits. They also seek an injunction requiring defendants to adopt policies and procedures to implement such reasonable accommodations. The state defendants filed their Answer March 20, 2000. Defendant ECDSS failed to appear in this case and, because plaintiffs never requested the Clerk's entry of default against such defendant, this Court issued an order June 12, 2000 requiring plaintiffs to show cause why this case should not be dismissed as against such defendant.
In their Complaint, plaintiffs had alleged that "Defendant, BRIAN WING, is sued in his capacity as Commissioner of the New York State Department of Social Services, the department of New York State responsible for administration of public benefits such as TANF [Temporary Assistance to Needy Families], food stamps and Medicaid. As Commissioner, he promulgates regulations and administrative directives of these programs." Compl. ¶ 18. In their Answer, however, the state defendants denied that Wing is the Commissioner of NYSDSS and state that such agency had been abolished in 1997 and replaced by the Department of Family Assistance which is comprised of two separate agencies, the Office of Temporary and Disability Assistance and the Office of Children and Family Services. State Defs.' Answer ¶ 6. The state defendants are correct. See Welfare Reform Act of 1997, ch. 436, pt. B, § 122, 1997 N.Y. Laws 1146, 1202-1207. This Court will accordingly and sua sponte dismiss any and all complaints herein against defendant Brian Wing, as Commissioner of NYSDSS.
Although issue had not yet been fully joined, plaintiffs on June 22, 2000 filed a motion for class certification pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure ("FRCvP"). In response to this Court's June 12, 2000 Order, plaintiffs' counsel, Louise E. Carey, Esq., submitted an affidavit pursuant to Rule 41.2 of this Court's Local Rules of Civil Procedure ("LRCvP") June 28, 2000 stating that she had received a copy of ECDSS's Answer June 26, 2000 and, accordingly, this Court issued an Order July 11, 2000 finding that cause had been shown why this case should not be dismissed for failure to prosecute because, although ECDSS's Answer "has yet to be filed in the District Court Clerk's Office, it is nevertheless this Court's expectation that such soon will be * * *." On June 4, 2001, ECDSS never having formally answered the Complaint and plaintiffs still not having requested the Clerk's entry of default, this Court issued a second order requiring plaintiffs to show cause why this case should not be dismissed as against defendant ECDSS.
On June 14, 2001 plaintiffs' counsel, Ryan L. Everhart, Esq., requested the Clerk's entry of default against defendant ECDSS and such default was entered June 18, 2001. On June 29, 2001 ECDSS filed its Answer without having moved for or obtained an order from this Court vacating the Clerk's entry of its default and plaintiffs moved July 3, 2001 for the entry of default judgment against ECDSS. This Court issued an Order July 18, 2001 finding that cause had been shown why this case should not be dismissed against ECDSS for failure to prosecute based upon the Clerk's entry of default and plaintiffs' motion for default judgment. Counsel for ECDSS, Gary J. Wojtan, Esq., filed an affidavit in opposition to plaintiffs' motion for default judgment July 24, 2001 stating that another attorney for ECDSS had attempted to file its Answer in June 2000 but that the Clerk of this Court had refused to accept it for filing because it was not an original as is required by LRCvP 7.1(i). He states that he had not realized that ECDSS's Answer had not been filed until he received the Clerk's entry of default and that he then filed ECDSS's Answer. On July 30, 2001 this Court issued an Order lifting the Clerk's entry of default against ECDSS, denying plaintiffs' motion for default judgment against such defendant and denying plaintiffs' motion for class certification without prejudice to refiling such because it had been filed and argued before ECDSS had filed its Answer.
Plaintiffs re-filed their motion for class certification August 10, 2001. Oral argument on plaintiffs' motion was held October 12, 2001 and such has thereafter been before this Court for disposition. Plaintiffs seek certification of a class consisting of
Although the primary reason this Court had denied plaintiffs' June 22, 2000 motion for class certification without prejudice had been to allow defendant ECDSS to file papers in response thereto, ECDSS did not file any such papers.
"[a]ll persons with mental retardation residing in New York State, who are eligible for a public assistance benefit such as cash assistance, food stamps or non-SSI Medicaid for themselves or their dependents and who want to receive such benefits, but who are or will be denied these benefits by reason of their disability." Mot. for Class Certification at 2.
Plaintiffs' definition of "mental retardation" is based upon the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. Compl. ¶ 23. Mental retardation vel non is measured or defined by three criteria — viz., (1) significantly sub-average intellectual functioning characterized by an IQ score of less than 70 — subject to a plus or minus deviation of five points —, (2) significant concurrent deficits, impairments or limitations in adaptive functioning and (3) onset thereof before the age of eighteen years. Compl. ¶ 24; Siragusa Aug. 17, 2000 Ex. A (American Psychiatric Association DSM-IV, Diagnostic and Statistical Manual of Mental Disorders, 4th Ed., pgs. 37, 39). Mental retardation is divided into four sub-categories — viz., (1) mild, (2) moderate, (3) severe and (4) profound. Siragusa Aug. 17, 2000 Ex. A (American Psychiatric Association DSM-IV, Diagnostic and Statistical Manual of Mental Disorders, 4th Ed., pgs. 39-40). Plaintiffs allege that all class members are unable to do the following ten things because of their mental retardation — viz., (1) read and complete application forms, (2) remember appointments and comply with time deadlines, (3) read letters from the ECDSS, (4) obtain documents from courts, doctors or institutions, (5) use public transportation, (6) fully comprehend the written word, (7) fully express themselves, (8) understand abstract language, (9) generalize from an experience in one situation to another situation and (10) obtain necessary information by asking relevant questions. Compl. ¶ 10.
Plaintiffs refer to the third edition; however, the fourth edition is the current manual.
Michael A. Siragusa, Esq., Assistant Attorney General for the State of New York.
There is also a fifth category of mental retardation, i.e., severity unspecified. "The diagnosis of Mental Retardation, Severity Unspecified, should be used when there is a strong presumption of Mental Retardation but the person cannot be successfully tested by standard intelligence tests. This may be the case when children, adolescents, or adults are too impaired or uncooperative to be tested or, with infants, when there is a clinical judgment of significantly subaverage intellectual functioning, but the available tests (e.g. the Bayley Scales of Infant Development, Cattell Infant Intelligence Scales, and others) do not yield IQ values. In general the younger the age, the more difficult it is to assess for the presence of Mental Retardation except in those with profound impairment." Siragusa Aug. 17, 2000 Ex. A (American Psychiatric Association DSM-IV, Diagnostic and Statistical Manual of Mental Disorders, 4th Ed., pg. 42).
"Mild Mental Retardation is roughly equivalent to what used to be referred to as the educational category of `educable.' This group constitutes the largest segment (about 85%) of those with the disorder. As a group, people with this level of Mental Retardation typically develop social and communication skills during the preschool years (ages 0-5 years), have minimal impairments in sensorimotor areas, and often are not distinguishable from children without Mental Retardation until a later age. By their late teens, they can acquire academic skills up to approximately the sixth grade level. During their adult years, they usually achieve social and vocational skills adequate for minimum self-support, but may need supervision, guidance, and assistance, especially when under unusual social or economic stress. With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings." Siragusa Aug. 17, 2000 Ex. A (American Psychiatric Association DSM-IV, Diagnostic and Statistical Manual of Mental Disorders, 4th Ed., pg. 41).
"Moderate Mental Retardation is roughly equivalent of what used to be referred to as the educational category of `trainable.' This outdated term should not be used because it wrongly implies that people with Moderate Mental Retardation cannot benefit from educational programs. This group constitutes about 10% of the entire population of people with Mental Retardation. Most of the individuals with this level of Mental Retardation acquire communication skills during early childhood years. They profit from vocational training and, with moderate supervision, can attend to their personal care. They can also benefit from training in social and occupational skills but are unlikely to progress beyond the second-grade level in academic subjects. They may learn to travel independently in familiar places. During adolescence, their difficulties in recognizing social conventions may interfere with peer relationships. In their adult years, the majority are able to perform unskilled or semiskilled work under supervision in sheltered workshops or in the general workforce. They adopt well to life in the community, usually in supervised settings." Siragusa Aug. 17, 2000 Ex. A (American Psychiatric Association DSM-IV, Diagnostic and Statistical Manual of Mental Disorders, 4th Ed., pg. 41).
"The group with Severe Mental Retardation constitutes 3%-4% of individuals with Mental Retardation. During their early childhood years, they acquire little or no communicative speech. During the school-age period, they may learn to talk and can be trained in elementary self-care skills. They profit to only a limited extent from instruction in pre-academic subjects, such as familiarity with the alphabet and simple counting, but can master skills such as learning sight reading of some `survival' words. In their adult years, they may be able to perform simple tasks in closely supervised settings. Most adopt well to life in the community, in group homes or with their families, unless they have an associated handicap that requires specialized nursing or other care." Siragusa Aug. 17, 2000 Ex. A (American Psychiatric Association DSM-IV, Diagnostic and Statistical Manual of Mental Disorders, 4th Ed., pg. 41).
"The group with Profound Mental Retardation constitutes approximately 1%-2% of people with Mental Retardation. Most individuals with this diagnosis have an identified neurological condition that accounts for their Mental Retardation. During the early childhood years, they display considerable impairments to sensorimotor functioning. Optimal development may occur in a highly structured environment with constant aid and supervision and an individualized relationship with a caregiver. Motor development and self-care and communications skills may improve if appropriate training is provided. Some can perform simple tasks in closely supervised and sheltered settings." Siragusa Aug. 17, 2000 Ex. A (American Psychiatric Association DSM-IV, Diagnostic and Statistical Manual of Mental Disorders, 4th Ed., pgs. 41-42).
According to the allegations in the Complaint regarding the proposed representative plaintiffs, McLean is mentally retarded and resides with his wife and minor daughter, both of whom are disabled and receive Supplemental Security Income ("SSI"). Compl. ¶ 26. McLean is eligible for TANF and Medicaid and has received such benefits in the past, but receipt of such has been cancelled several times because of his "failure to recertify, supply documentation and failure to comply with other requirements of defendants." Compl. ¶ 27. Specifically, in July of 1999 ECDSS informed McLean that in order to maintain eligibility for public assistance he had to participate in work activities; McLean "sought to obtain an exemption from work activities because he is needed when his severely disabled daughter is at home" and obtained two letters from physicians, but because ECDSS had found such to be inadequate, he concluded that he could not obtain the requested documentation and "`gave up.'" Compl. ¶¶ 28-30. McLean attempted to recertify for TANF cash assistance in August of 1999 and requested help to fill out the necessary form; the first "worker" he had asked refused but the second "worker" he had asked assisted him but determined that he was ineligible for TANF because he had not obtained an exemption from the work activities program. Compl. ¶¶ 31-32.
Neither McLean nor Isherwood provided affidavits.
See footnote 1.
Plaintiffs stated that McLean is needed at home because "he is the only parent who can use the feeding tube which his daughter needs for her regular feedings." Mem. of Law in Reply to Defs.' Opp'n to Pls.' Mot. for Class Cert. at 3.
On August 17, 1999 the ECDSS sent McLean a notice of discontinuance of public assistance which stated that his public assistance grant was to be reduced from $306 to $0 per month effective August 31, 1999 and continuing until he "complies with work activities assigned by the department." The ECDSS noted that he had failed to return form B-4783 which had been due July 24, 1999. Compl. Ex. B. Plaintiffs allege that McLean is eligible for TANF and Medicaid and is entitled to an exemption from the work activities requirement pursuant to N.Y. Soc. Serv. Law § 332 because of his daughter's disability. Proposed representative plaintiff Isherwood receives SSI, food stamps and Medicaid and her daughter also receives food stamps and Medicaid. Compl. ¶ 38. After receiving a hospital bill, Isherwood learned that her daughter had been without Medicaid from November 30, 1996 through January 14, 1998 although she had been eligible for such during such period; she was unable to have her daughter's Medicaid reinstated until she received assistance from a private agency. Compl. ¶¶ 39-42. Plaintiffs also allege that Isherwood's daughter is eligible for TANF but is not receiving such because Isherwood has been unaware that such is available. Compl. ¶ 44.
Such form is apparently designed to justify vel non that a person is needed in the home to care for a relative.
"In accordance with federal requirements and this title an applicant for or a recipient of public assistance shall not be required to participate in work activities if such individual is determined by the social services district to be exempt because he or she is * * * a person whose presence in the home is required because of the illness or incapacity of another member of the household * * *." N.Y. Soc. Serv. Law § 332(1)(c).
After the state defendants had noted that plaintiffs had failed to provide any evidence that either of the proposed representative plaintiffs was actually mentally retarded — Siragusa Aug. 17, 2000 Aff. ¶¶ 5, 11 —, plaintiffs provided psychological reports on both McLean and Isherwood. According to a psychological report on McLean prepared by Dr. Thomas C. Dickinson, Ph.D., McLean is a licensed driver — who is unable to read street signs — but arrived at the appointment via taxicab. He cannot read his mail, the evening paper, television guide or bus schedule, but can read menus and telephone books. He cannot fill out job applications on his own but can supply personal data such as his name, address, telephone number and date of birth. McLean's reading, spelling and arithmetic abilities are below the third grade level; he had been in special classes in the East Aurora Schools and has "serious general educational deficits." Measured under the Wechsler Adult Intelligence Scale ("WAIS"), McLean has a Verbal IQ of 72, a Performance IQ of 78 and a Full Scale IQ of 74. Carey Sep. 8, 2000 Aff. Ex. D (July 27, 1993 Psychological Report of McLean by Thomas C. Dickinson, Ph.D.). According to a psychological report on Isherwood prepared by Dr. Kent E. Bath, Ph.D., Isherwood "could print all requested information" and "could read and spell words up to the difficulty level of `believe,' `eliminate,' and `conspiracy.'" Isherwood can read at a seventh grade level, spell at the fifth grade level and do math at the third grade level. Measured under WAIS, Isherwood has a Verbal IQ of 71, a Performance IQ of 65 and a Full Scale IQ of 67. Carey Sep. 8, 2000 Aff. Ex. D (April 29, 1985 Psychological Report of Isherwood by Kent E. Bath, Ph.D.).
Pursuant to FRCvP 23(a)
"[o]ne or more members of a class may sue * * * as representative parties on behalf of all 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 * * * of the representative parties are typical of the claims * * * of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."
The party seeking class certification bears the burden of demonstrating to the court that each of the above four prerequisites to class certification, which are commonly referred to as numerosity, commonality, typicality and representational adequacy, has been met and the district court, after a rigorous analysis of such factors, must be satisfied that each has been met. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982) (Court must carefully evaluate the class allegations and may need to "probe behind the pleadings before coming to rest on the certification question."); Baffa v. Donaldson, Lufkin Jenrette Securities Corp., 222 F.3d 52, 58 (2d Cir. 2000); Caridad v. Metro-North Commuter Railroad, 191 F.3d 283, 291 (2d Cir. 1999), cert. denied sub nom Metro-North Commuter Railroad v. Norris, 529 U.S. 1107 (2000); Kent-Chojnicki v. Runyon, 180 F.R.D. 237, 242 (W.D.N.Y. 1998). However, the district court "must not consider or resolve the merits of the claims of the purported class" because "a motion for class certification is not an occasion for examination of the merits of the case." Baffa, at 58. See also Eisen v. Carlisle Jacquelin, 417 U.S. 156, 178 (1974); Caridad, at 291, 293; Kent-Chojnicki, at 242. In addition to satisfying each of such four prerequisites, a party seeking class certification under FRCvP 23(b)(2) must also demonstrate that the "party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." FRCvP 23(b)(2). Certification of a class under FRCvP 23(b)(2) is appropriate in cases such as the present "where declaratory or injunctive relief is an important aspect of the relief sought." In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 516 (S.D.N.Y. 1996).
The first prerequisite to class certification is numerosity. A class action may only be certified if the "class is so numerous that joinder of all members is impracticable." FRCvP 23(a)(1).
"Determination of practicability depends on all the circumstances surrounding a case, not on mere numbers. Relevant considerations include judicial economy arising from the avoidance of a multiplicity of actions, geographic dispersion of class members, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members." Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993).
Citation omitted.
Although the party seeking class certification need not present evidence of the "exact class size or identity of class members" to establish that the proposed class is so numerous that joinder is impracticable, a reasonable estimate thereof is still required. Robidoux, at 935. See also DeMarco v. Edens, 390 F.2d 836, 845 (2d Cir. 1968) (Evidence regarding size of proposed class is required; speculation does not suffice.); DeFlumer v. Overton, 176 F.R.D. 55, 58-59 (N.D.N.Y. 1997) (same). Where the proposed class consists of at least forty members, however, the numerosity requirement is presumed to be satisfied. Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.), cert. denied, 515 U.S. 1122 (1995).
Plaintiffs allege that the proposed class members are distributed throughout the State of New York, are in poor financial condition, lack the ability to institute individual suits because they are mentally retarded and all seek prospective injunctive relief. However, plaintiffs have not attempted to provide this Court with a reasonable estimate of the class size upon which to determine if joinder is impracticable other than by stating that there are at least 708 mentally retarded individuals in Erie County who receive public benefits on behalf of themselves or their dependents. Carey July 19, 2000 Aff. Ex. A; Carey/Munger Aug. 8, 2001 Aff. ¶¶ 9-10. Plaintiffs do not, however, provide any information regarding how many of those 708 mentally retarded people have been or will be denied public benefits by reason of their disability so as to fall within the proposed class, other than by conclusory stating that "[m]any of these individuals * * * have lost or been denied benefits because of their disability of mental retardation." Carey July 19, 2000 Aff. Ex. C ¶ 3. Although this Court could very well presume that the class is so numerous that joinder would be impracticable based upon the information provided by plaintiffs, it is impermissible to presume that the requirements for class certification have been satisfied — Falcon, at 157-161; Rossini v. Ogilvy Mather, Inc., 798 F.2d 590, 596-598 (2d Cir. 1986) —; therefore plaintiffs have failed to demonstrate that the proposed class is so numerous that joinder is impracticable.
Exhibit C consists of four separate affidavits; however, paragraph 3 of each affidavit is identical.
The second and third prerequisites to class certification are commonality and typicality respectively; these two requirements, however, "`tend to merge' because `[b]oth serve as guideposts for determining whether . . . the named plaintiff's claim and the class claims are so inter-related that the interests of the class members will be fairly and adequately protected in their absence.'" Caridad, at 291 (quoting Falcon, at 157, n. 13). The commonality requirement is satisfied where the claims of the representative plaintiffs and the absent class members share a common question of law or fact. Kent-Chojnicki, at 242; In re NASDAQ Market-Makers Antitrust Litig., at 509-510. The "typicality requirement is satisfied when each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims." Robidoux, at 936-937. See also Caridad, at 293; In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir. 1992), cert. dismissed sub nom Hart Holding Co., Inc. v. Drexel Burnham Lambert Group, Inc., 506 U.S. 1088 (1993); In re NASDAQ Market-Makers Antitrust Litig., at 510-511; Kent-Chojnicki, at 242.
Citations omitted.
Plaintiffs argue that there are common questions of law and fact and that their claims are typical of the claims of the absent class members because they all suffer from mental retardation and are eligible for public benefits but have been denied access to such because of defendants' failure to adopt regulations designed to reasonably accommodate their common disability so they can obtain and retain such benefits. There are common questions of law and fact in regard to the claims against the existing state defendant and for the proposed representative plaintiffs and some of the proposed class members against the ECDSS. However, according to the definition of mental retardation relied upon by plaintiffs and the psychological reports submitted of the would-be representative plaintiffs, proposed representative plaintiff McLean facially is not retarded — although there is a remote possibility that he may be and, although representative plaintiff Isherwood facially is retarded, there is a fair possibility that she may not be and the United States Supreme Court has "repeatedly held that a class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Falcon, at 156. Inasmuch as it may be that neither of the representative plaintiffs falls within the proposed class their claims cannot, at this juncture, be considered typical of the claims of the absent class members. See Baffa, at 59 (affirming denial of class certification where proposed representative plaintiff was not a member of the class). Furthermore, even assuming arguendo that both proposed representative plaintiffs are mentally retarded, both would fall into the upper range of the category of mild mental retardation and based upon the substantial differences among persons suffering from mild, moderate, severe or profound mental retardation — see footnotes 6-9 — neither of the two proposed representative plaintiff's claims can be said to be typical of all persons with these varying degrees of mental retardation. Changes in and to defendants' policies which would be sufficient to reasonably accommodate the mildly mentally retarded would not equally accommodate the profoundly retarded — if indeed it is possible to reasonably accommodate the profoundly mentally retarded in the application process for public benefits based upon the characteristics of such disorder. See footnote 9.
See footnote 1.
The majority of the speculatively proposed class members are not served by the ECDSS. See footnote 20.
A person with a Full Scale IQ of 70 or below is considered to be mentally retarded and an IQ score is subject to a deviation of plus or minus five points. Siragusa Aug. 17, 2000 Ex. A (American Psychiatric Association DSM-IV, Diagnostic and Statistical Manual of Mental Disorders, 4th Ed., pgs. 39-40). Measured under the WAIS, McLean has a Full Scale IQ of 74 and Isherwood has a Full Scale IQ of 67. Carey Sep. 8, 2000 Aff. Ex. D (July 27, 1993 Psychological Report of McLean by Thomas C. Dickinson, Ph.D. and April 29, 1985 Psychological Report of Isherwood by Kent E. Bath, Ph.D.). Inasmuch as proposed representative plaintiff McLean has a Full Scale IQ of 74 and an IQ range of 69-79 and proposed representative plaintiff Isherwood has a Full Scale IQ of 67 and an IQ range of 62-72 it may well be that neither plaintiff falls within the definition of the proposed class.
The fourth and final prerequisite to class certification under FRCvP 23(a) is the adequacy of either or both of the proposed representative plaintiffs and their counsel to conduct the proposed class action. Baffa, at 60 (adequacy of class representative and class counsel are intertwined); In re NASDAQ Market-Makers Antitrust Litig., at 512.
"Inherent in any class action is the potential for conflicting interests among the class representatives, class counsel, and absent class members. The interest of lawyer and class may diverge, as may the interests of different members of the class. Both class representatives and class counsel have responsibilities to absent members of the class. Under Rule 23, the court cannot properly certify the action to proceed as a class action unless it is satisfied that the representative plaintiffs will fairly and adequately protect the interests of the class. Thus, class certification may properly be denied where the class representatives have so little knowledge of and involvement in the class action that they would be unable or unwilling to protect the interests of the class against the possibly competing interests of the attorneys. Once the action has been certified to proceed as a class action, it is incumbent on the class representatives to be alert for, and to report to the court, any conflict of interest on the part of class counsel, as for example, counsel's greater concern for receiving a fee than for pursuing the class claims." Maywalt v. Parker Parsley Petroleum Company, 67 F.3d 1072, 1077-1078 (2d Cir. 1995). See also Baffa, at 60 (Class representatives' interests must not be antagonistic to absent class members interests.).
Internal citations and punctuation omitted.
Internal citations and punctuation omitted.
The court must "carefully scrutinize the adequacy of representation in all class actions" "because the judgment conclusively determines the rights of absent class members." Eisen v. Carlisle Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968). The proposed representative plaintiffs are not capable of adequately representing the class. Both reside in Erie County and, although they aspire to represent a class encompassing all "persons with mental retardation residing in New York State," they have only named Erie County's Department of Social Services as a defendant. Therefore they have already failed to adequately represent the proposed class members who reside in and are serviced by the respective departments of social services — or their functional equivalent — in the remaining 61 counties in New York State. Furthermore, based upon the ten characteristics the proposed representative plaintiffs are alleged to share with all class members including, inter alia, the inability to read, to fully express themselves and to obtain necessary information by asking relevant questions, neither McLean nor Isherwood would be able to adequately represent the absent class members by, inter alia, being "alert for, and * * * report[ing] to the court, any conflict of interest on the part of class counsel * * *." Maywalt, at 1078; Baffa, at 62 (Class representative must possess necessary knowledge to protect the interests of the class.).
Inasmuch as this Court will be denying the motion for class certification, this Court expresses no opinion as to whether intellectually-impaired persons such as McLean and Isherwood could serve as representative plaintiffs in a class action.
A review of the materials submitted by plaintiffs causes this Court to ponder whether they are even aware that they are seeking to represent class members residing in all of New York State as opposed to only those who reside in Erie County. See e.g., Mem. of Law in Reply to Defs.' Opp'n to Pl's Mot. for Class Cert. at 10 ("There are also numerous questions of fact and law common to the named plaintiffs and all plaintiff class members as to [the ECDSS]."). Any questions of fact and law regarding the ECDSS are absolutely irrelevant to the vast majority of the proposed class members who reside in the other 61 counties in New York State, however.
"[A]n essential concomitant of adequate representation is that the party's attorney be qualified, experienced and generally able to conduct the proposed litigation." Eisen, 391 F.2d at 562. See also Baffa, at 60; Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997); In re Joint Eastern and Southern Dist. Asbestos Litig., 78 F.3d 764, 778 (2d Cir. 1996); Maywalt, at 1078; In re Drexel Burnham Lambert Group, Inc., at 291; In re NASDAQ Market-Makers Antitrust Litig., at 513-515. The proposed class counsel in the present case are three attorneys employed by the legal department of Heritage Centers — viz., (1) Louise E. Carey, Esq., (2) Judith K. Munger, Esq. and (3) Ryan L. Everhart. Carey and Munger each state that she has practiced law in excess of thirty-five years and has worked with the mentally retarded for over ten years. Carey/Munger Aug. 8, 2001 Aff. ¶¶ 17-21. Plaintiffs' counsel asserts that because defendants do not dispute their qualifications, such portion of FRCvP 23(a)(4) is satisfied; however, it is the responsibility of the district judge to ensure that plaintiffs' counsel are competent to represent the proposed class and the identity of the proposed class counsel must be considered by the court in deciding whether to certify a class action. Maywalt, at 1078; Foe v. Cuomo, 892 F.2d 196, 198 (2d Cir. 1989), cert. denied, 498 U.S. 972 (1990).
Everhart entered this case after plaintiffs had moved for class certification and, accordingly, no information on his experience or qualifications has been provided.
This Court does not find, at this point, that plaintiffs' counsel are qualified, experienced and generally able to conduct this proposed class action litigation. They have demonstrated a thorough unfamiliarity with this Court's Local Rules of Civil Procedure — to the extent that they are unaware, for example, that the plaintiffs had abandoned and waived all class allegations even before they moved for class certification. LRCvP 23(d) states that
"Within 120 days after the filing of a pleading alleging a class action, unless this period is extended on motion for good cause filed prior to the expiration of said 120-day period or in the scheduling order, the party seeking class certification shall move for a determination under Federal Rule of Civil Procedure 23(c)(1) as to whether the case is to be maintained as a class action."
LRCvP 23(g) states that
"Failure to move for class determination and certification within the time required herein shall constitute and signify an intentional abandonment and waiver of all class action allegations contained in the pleading and the action shall proceed as an individual, non-class action thereafter. If any motion for class determination or certification is filed after the deadline provided herein, it shall not have the effect of reinstating the class allegations unless and until it is acted upon favorably by the Court upon a finding of excusable neglect and good cause."
Plaintiffs commenced this action February 4, 2000 but did not move for class certification until June 22, 2000 — i.e., 141 days after the filing of a pleading alleging a class action and therefore plaintiffs are deemed to have intentionally abandoned and waived all class action allegations. Seils v. Rochester City School Dist., 192 F. Supp.2d 100, 125-126 (W.D.N.Y. 2002) (denying motion for class certification on ground that plaintiff had failed to so move within 120 days of filing class action complaint and had thereby intentionally abandoned and waived all class allegations); American Fed'n of Grain Millers v. Int'l Multifoods Corp., No. 92-CV-0828, 1996 WL 378175, at *1 n. 1 (W.D.N.Y. June 16, 1996), aff'd, 116 F.3d 976 (2d Cir. 1997) (noting that failure to move for class certification within the allocated time frame constitutes an intentional abandonment and waiver of all class allegations); Cottone v. Blum, 571 F. Supp. 437, 440-441 (W.D.N.Y. 1983) (denying motion for class certification, inter alia, on the ground that such was untimely filed under former LRCvP 15 8(c)). Furthermore, plaintiffs' counsel did not submit a memorandum of law in support of their motion for class certification but, after the state defendants had filed a memorandum of law in opposition to class certification, plaintiffs' counsel filed a seventeen-page reply memorandum of law — in violation of LRCvP 7.1(f) which states that, without prior approval of the Court, reply briefs shall not exceed ten pages in length. Moreover, dismissal of an action for failure to prosecute operates as an adjudication on the merits — FRCvP 41(b), LRCvP 41.2(b) — and if this Court were to certify this case as a class action there is a reasonable chance that plaintiffs' counsel would allow such to occur because, as noted above, this Court has twice already had to order plaintiffs' counsel to show cause why this case should not be dismissed for failure to prosecute. Finally, although the state defendants noted in their Answer that defendant NYSDSS had been abolished in 1997 — see footnote 1 —, plaintiffs' counsel has never sought leave to amend the Complaint to remedy this error which had been brought to their attention over two years ago.
Admittedly, such is not explicitly required under the LRCvP.
Although this Court will be denying plaintiffs' motion for class certification, such has no practical effect upon this case. If plaintiffs are ultimately successful in obtaining the relief they are seeking — i.e. a declaration that defendants have unlawfully failed to provide reasonable accommodations to the mentally retarded in the application and re-certification for public benefits and an injunction requiring them to adopt and implement regulations to ensure that such reasonable accommodations are provided in the future — such relief will necessarily benefit those who would have been members of the proposed class and, if they are ultimately unsuccessful, those who would have been members of the class will not be bound by the unfavorable judgment. Berger v. Heckler, 771 F.2d 1556, 1566-1567 (2d Cir. 1985); Bragg v. Perales, No. Civ.-90-602E, 1991 WL 37844, at *2 (W.D.N.Y. Mar. 8, 1991); Denenberg v. Blum, 93 F.R.D. 131, 133-134 (S.D.N.Y. 1982); Feld v. Berger, 424 F. Supp. 1356, 1363 (S.D.N.Y. 1976).
Accordingly, it is hereby ORDERED that plaintiffs' motion for class certification is denied, that plaintiffs shall inform this Court whether they desire to continue this case on an individual basis within thirty days of the filing of this Order, that all claims against defendant Brian Wing, as Commissioner of New York State Department of Social Services are dismissed and that the caption shall be changed to:
"DAVID McLEAN and DEBORA ISHERWOOD, Plaintiffs,
-vs-
DEBORAH MERRIFIELD, As Commissioner of Erie County Department of Social Services, and ANTONIA C. NOVELLO, As Commissioner of New York State Department of Health, Defendants."