United States District Court, D. Vermont
DAVID McGEE, RICHARD PAHL, JOSE TORRES, KEVIN KIMBER, DANIEL MUIR, JAMES ANDERSON, and all other inmates similarly situated,  Plaintiffs,
ANDREW PALLITO, Commissioner, Vermont Department of Corrections, ROBERT HOFMAN, KEITH TALLON, CELESTE GIRRELL, JOHN GORCZYK, KATHLEEN LANMAN, MICHAEL O'MALLEY, ANITA CARBONNEL, STUART GLADDING, DANIEL FLORENTINE, RAYMOND FLUM, and CAROL CALLEA, Defendants.
MEMORANDUM AND ORDER ON MOTION TO DECERTIFY THE CLASS (Doc. 344)
J. GARVAN MURTHA, District Judge.
The Court assumes familiarity with the facts and background of the case. The Plaintiffs seek an injunction barring the Vermont Department of Corrections from continuing their policy of constant illumination in prison cells. On October 16, 2006, this Court adopted the Magistrate Judge's recommendation and certified a class of "inmates who have been subjected, are currently being subjected, or who will be subjected to constant illumination in Vermont prison cells and who suffer injuries as a result." (Doc. 189.) On December 20, 2010, the Court adopted the Magistrate Judge's recommendation and granted Defendants' motion for summary judgment on the class claims. (Doc. 288.) In short, the Court concluded the Plaintiffs had not presented evidence indicating constant illumination had caused them harm or that constant illumination of prison cells was not justified by legitimate penological interests. (Doc. 276, at 17, 20.)
Plaintiff Kevin Kimber appealed the Court's order granting summary judgment, and the Second Circuit vacated and remanded the case after concluding the Court abused its discretion in appointing as class counsel the Prisoner's Rights Office of the Vermont Defender General. See Kimber v. Tallon, 556 F.Appx. 27, 28 (2d Cir. 2014). The Second Circuit explained that "[o]n remand, the district court will consider an appropriate way forward, " indicating the options included "decertification of the class or appointing new class counsel for the currently certified class." Id . The Court has appointed Phillips Lytle LLC as class counsel (Doc. 325), and now addresses the Defendants' motion to decertify the class. (Doc. 344.) Defendants argue, in short, that decertification is appropriate at this time due to intervening changes in the law and new developments in the facts. (Doc. 344.) Plaintiffs opposed the motion to decertify the class (Doc. 351), and Defendants filed a reply (Doc. 360). For the reasons stated below, the motion to decertify the class is DENIED.
Defendants argue new law and facts defeat commonality and typicality and require decertification. Ultimately, Defendants provide no persuasive reason to decertify the class. Their arguments fail generally for two reasons: first, Defendants fail to provide new law or evidence, and second, Defendants fail to recognize the difference in the requirements of Rule 23(b)(2) and Rule 23(b)(3) classes.
A. Standard of Review
Under Federal Rule of Civil Procedure 23(c)(1)(C), "[a]n order that grants or denies class certification may be altered or amended before final judgment." Fed.R.Civ.P. 23(c)(1)(C). Accordingly, courts must "reassess their class rulings as the case develops." Boucher v. Syracuse Univ., 164 F.3d 113, 118 (2d Cir. 1999) (quoting Barnes v. The Am. Tobacco Co., 161 F.3d 127, 140 (3d Cir. 1998)). A court may not disturb its prior findings, however, "absent some significant intervening event or a showing of compelling reasons to reexamine the question." Gulino v. Bd. of Educ. of City Sch. Dist. of N.Y., 907 F.Supp.2d 492, 504 (S.D.N.Y. 2012). Compelling reasons "include an intervening change of controlling law, the availability of new evidence, or the need to correct clear error or prevent manifest injustice." Id . (quoting Doe v. Karadzic, 192 F.R.D. 133, 137 (S.D.N.Y. 2000). A defendant seeking decertification of a class "bear[s] a heavy burden to prove the necessity of... the drastic step of decertification." Gordon v. Hunt, 117 F.R.D. 58, 61 (S.D.N.Y. 1987).
Defendants argue that since the class was certified in 2006, both the law and facts have changed. Specifically, they contend the Supreme Court's decisions in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011), and Comcast v. Behrend, 133 S.Ct. 1426 (2013), render class treatment inappropriate; new expert evidence undermines Plaintiffs' arguments twenty-four hour lighting reduces melatonin; and individual medical issues will outweigh common questions with respect to the claim that security lighting exacerbates other health conditions.
B. No New Law
There has been no relevant change in the legal landscape since this Court first certified the class in 2006. Thus, in moving to decertify the class, Defendants face a high bar.
Defendants argue the Supreme Court's decision in Wal-Mart, 131 S.Ct. 2541, "established a standard of proof plaintiffs must meet to obtain class certification and defined the proper use of Rule 23(b)(3) classes." (Doc. 344, at 8-9.) To the extent Defendants suggest Wal-Mart introduced the concept of "rigorous analysis" at the class certification stage, they are incorrect. "Rigorous analysis" - an examination of facts supporting class certification - is not new. See Gen. Tele. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982) ("[W]e reiterate today that a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied."); Heerwagen v. Clear Channel Commc'ns, 435 F.3d 219, 225 (2d Cir. 2006), overruled in part on other grounds, Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196 (2d Cir. 2008). Additionally, Wal-Mart is not factually analogous to this case, because the defendants there did not have a unitary policy that the class challenged and plaintiffs sought non-incidental monetary compensation in the form of backpay. Defendants also point to the Supreme Court's decision in Comcast, 133 S.Ct. 1426, but that decision addresses the predominance requirement in a Rule 23(b)(3) class action - this case is a Rule 23(b)(2) class seeking injunctive relief, for which there is no predominance requirement. These two decisions comprise the entirety of the "new law" on which Defendants premise their motion for decertification, but for the foregoing reasons it is not clear to the Court that Wal-Mart or Comcast alters the analysis in this Rule 23(b)(2) class action.
C. Commonality and Typicality
As explained above, Defendants have not cited an intervening change in the law of class actions. But the parties do raise new arguments concerning the commonality and typicality requirements of Rule 23(a). Before the Court's original 2006 certification order, the parties did not extensively brief these issues. Here, the Court will consider whether there is a "need to correct clear error or prevent manifest injustice." Gulino, 907 F.Supp.2d at 504; see also Sirota v. Solitron Devices, Inc., 673 ...