The opinion of the court was delivered by: ROBERT W. SWEET
Plaintiffs have moved for class certification pursuant to Rule 23, Fed. R. Civ. P. Defendants have moved for dismissal and summary judgment on various grounds. For the reasons set forth below, plaintiffs' motion is granted as modified, Defendants motions are granted in part and denied in part as set forth below.
Plaintiff Jennifer German has resided at 1710 Montgomery Avenue (the "Montgomery Building"), Apartment 2H, Bronx, New York ("Apartment 2H"), since her birth in 1991. Her mother was informed that she was lead poisoned on December 9, 1992.
Plaintiff Wellington German has resided in the Montgomery Building, Apartment 2H since 1988. He was diagnosed with a blood lead level of 12 ug on or before October 22, 1992. Wellington was born in September 1988.
Plaintiff Ana Maritza German (together with Jennifer and Wellington German, the "Germans"), is the mother and natural guardian of Jennifer and Wellington German. She has resided in the Montgomery Building, Apartment 2H, since 1988.
Defendant Federal Home Loan Mortgage Corporation ("Freddie Mac"), is a privately-owned corporate instrumentality of the United States chartered by Congress to increase the supply of money that primary mortgage lenders can make available to home buyers. See 12 U.S.C. §§ 1451-1459. Freddie Mac fulfills its mission by purchasing mortgages from financial institutions covering residential dwellings located throughout the United States. 12 U.S.C. § 1454(a)(1). Freddie Mac allegedly was the owner of the Montgomery Building from December 1988 until October 31, 1991, and from May 8, 1992, until September 16, 1992.
Defendant City of New York (the "City") owned and operated the Montgomery Building from October 31, 1991, until May 8, 1992. In addition, the City receives and administers federal funds to operate buildings under section 8 (42 U.S.C. § 1437f) and the Community Development Block Grant ("CDBG") program (42 U.S.C. § 5301). The complaint alleges that the City, as a Public Housing Authority ("PHA") used federal funds in the German home to repair and rehabilitate as part of a Community Development Block grant program and thus is obligated to comply with the Lead Paint Poisoning Prevention Act (the "LPPPA") and related federal regulations.
Defendant CAISI Management Company ("CAISI") was retained as managing agent of the Montgomery Building between December 1, 1988 and October 31, 1991, and between May 8, 1992 and September 16, 1992. CAISI has its principal place of business in Melville, New York.
Defendant Harold Beck d/b/a Tebec Management Co. ("Tebec") was retained as managing agent of the Montgomery Building from January 1, 1990, to December 31, 1990.
Defendant Property Services Company ("PSC") has been the managing agent for the Montgomery Building from September 16, 1992, until the present. PSC is a domestic corporation with its principal place of business in Valley Stream, New York. 1710, Wittenstein, Wagman, Deutsch and PSC are collectively known as the "1710 defendants."
Plaintiff Marcus Coran was born on October 8, 1990, and has resided at 1061 St. Nicholas Avenue (the "St. Nicholas Building"), Apartment #5, New York, New York, since March 10, 1994. The building was allegedly built before 1960 and has peeling, scaling and cracked paint. The complaint alleges that the apartment contains paint on other chewable and lead dust generated surfaces that have been found to contain excessive levels of lead in violation of federal and local laws.
Plaintiff Raniqua Smith was born on January 3, 1991, and has resided at the St. Nicholas Building, Apartment #5, New York, New York since March 10, 1994. Plaintiffs claim that Marcus and Raniqua have been diagnosed with at least slightly elevated blood levels. Marcus' blood lead level was measured at 12 ug/dL.
Plaintiff Denise Goffin (together with Marcus Coran and Raniqua Smith, the "Goffins"), is the mother and natural guardian of Marcus and Raniqua. She has resided in the St. Nicholas Building, Apartment 2H, since 1988.
Defendant Freddie Mac allegedly owns the St. Nicholas Building, receives and uses federal Section 8
funds for the property.
Defendant NYCHA receives and administers federal Section 8 funds for residential property defendant Freddie Mac owns and operates.
Pursuant to a Summons with Notice and Verified Complaint dated July 26, 1993, the Germans instituted an action in Supreme Court, Bronx County, against PSC, CAISI, 1710, Freddie Mac, Deutsch, Wittenstein, and Wagman. The complaint sought damages for personal injuries to the infant Germans and sought relief for Ana German in her individual capacity as mother and natural guardian of the infant plaintiffs.
Pursuant to 28 U.S.C. § 1446(b), Freddie Mac, as an entity created by federal legislation, removed this action to this Court on October 5, 1993.
Argument was heard on a motion to amend the complaint on May 11, 1994. An opinion on that motion was issued on June 28, 1994, granting the plaintiffs right to amend their complaint to include additional defendants and to supplement their claims. See German v. Federal Home Mortgage Corporation, 1994 U.S. Dist. LEXIS 8716, 1994 WL 319154 (S.D.N.Y.).
On August 17, 1994, this Court denied the Goffin plaintiffs' request for an order blocking the sale of the building,
(Proceedings, Aug. 17, 1994, at 20) and on August 22, 1994 the Goffins filed an intervening complaint in this action which sought individual and class relief.
A Second Amended Complaint (the "Complaint") was filed on September 14, 1994 in which the plaintiffs sought class certification and an order requiring defendants to take steps necessary to protect their tenants from lead poisoning.
In general, plaintiffs allege that none of the defendants ever notified any of the plaintiffs of the hazards of lead in their residences, nor did defendants maintain the premises so as to reduce or eliminate the lead hazard in the residence. Among the steps not undertaken by the defendants were inspection, maintenance and repair. Specifically, the plaintiffs allege that the defendants did not cover up, seal, and eliminate the lead paint or dust and otherwise prevent plaintiffs' exposure to lead. See Complaint at P 37.
Plaintiffs claim that their need for injunctive relief stems from the fact that they are being directly harmed by the immediately hazardous lead paint in their homes and that as a result of their continued exposure to lead paint, plaintiffs need the relief to ensure that the children are not now and will not become lead poisoned.
Specifically they seek an order requiring the defendants to: 1) notify their tenants regarding the lead hazards in defendants' buildings, 2) to take the steps necessary to minimize the harmful effects of lead to the tenants, 3) to create a fund, paid for by defendants, to provide medical surveillance and monitoring of the children in these buildings, 4) to refrain from evicting tenants and withholding security deposits, and 5) to abate the lead hazards in the buildings.
The complaint also states twenty causes of action and seeks damages and injunctive relief. The causes of action include: 1 and 2)
negligence; 3 and 4) negligence per se for violation of New York City Administrative Code §§ 27-2013(h) & 27-2126, 24 R.C.N.Y. § 173.13 and § 173.14 and 24 C.F.R. Part 35 and § 570 (claim against NYCHA and NYC does not include 173.13 and is § 882, not 173.13); 5 and 6) breach of contract and implied warranty of habitability; 7 and 8) products liability for selling a product defendants knew was inherently dangerous and for which they should be held strictly liable; 9 and 10) strict liability for ultra-hazardous substances; 11 and 12) nuisance and absolute nuisance for failure to inspect, warn or take action to prevent further poisoning after being informed of German plaintiffs' poisoning (including damages); 13 and 14) intentional infliction of mental distress in buildings where lead exposure is noticed and uncorrected; 15 and 16) negligent infliction of mental distress on the children and their parents; 17) violation of federal law by the City of New York; and 18) violation of federal law by NYCHA and Freddie Mac.
Damages are sought for the named plaintiffs, injunctive relief is sought for the named plaintiffs and the class.
The Plaintiffs seek an order pursuant to Rule 23, Fed. R. Civ. P., certifying this action as a class action on their own behalf and under Rule 23, Fed. R. Civ. P. as representative of the class and sub-classes defined herein.
All persons residing on premises either owned, managed, or operated by any of the defendants or where they administer assistance payments under a federal housing program.
All persons age 8 years and under and all women of childbearing age (12-50 years old) residing in buildings owned, managed, or operated by defendants or where they administer assistance payments under a federal housing program.
All persons age 8 years and under and all women of childbearing age (12-50 years old) residing in buildings owned, managed, or operated by defendants or where they administer assistance payments under a federal housing program, and where there is lead-based paint in or on the dwelling or common area.
Rule 23(c)(1), Fed. R. Civ. P., provides that "as soon as practicable after the commencement of an action brought as a class action, the Court shall determine by order whether it is to be so maintained."
In applying this Rule, courts have held that class action determinations are to be based solely on the allegations set forth in the complaint, which are accepted as true, see Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n.15 (2d Cir. 1978), and not on an inquiry into the merits of the plaintiff's claims, see Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974); Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87, 94 (S.D.N.Y. 1981). Thus, the only question to be determined is whether the requirements of Rule 23 have been satisfied, and in making this determination, any references to the plaintiffs' factual allegations set forth below are not to be construed as findings of fact regarding the issues raised by those allegations.
Furthermore, the Second Circuit has directed district courts to apply Rule 23 according to a liberal rather than a restrictive interpretation, see Korn v. Franchard Corp., 456 F.2d 1206, 1208-09 (2d Cir. 1972); Green v. Wolf Corp., 406 F.2d 291, 298, 301 (2d Cir. 1968), cert. denied, 395 U.S. 977, 23 L. Ed. 2d 766, 89 S. Ct. 2131 (1969), and has explicitly noted its preference for class certification in suits involving public housing because of the fluid composition of the public housing population. See Comer v. Cisneros, 37 F.3d 775, 797 (2d Cir. 1994).
However, despite the liberal interpretation that this Court must give to Rule 23, it may certify this as a class action only after undertaking "rigorous analysis" to assure that the requirements of the Rule are satisfied. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 72 L. Ed. 2d 740, 102 S. Ct. 2364 (1982).
Before addressing the specific requirements of Rule 23, the Court must address the standing and mootness issues raised by defendants.
It is well-established that "the burden is on the party claiming jurisdiction to demonstrate that the court has jurisdiction over the subject matter." International Shipping Co., S.A. v. Hydra Offshore, Inc., 675 F. Supp. 146, 151 & n.5 (S.D.N.Y. 1987), aff'd, 875 F.2d 388 (2d Cir.), cert. denied, 493 U.S. 1003, 107 L. Ed. 2d 558, 110 S. Ct. 563 (1989). See also McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 80 L. Ed. 1135, 56 S. Ct. 780 (1936); Kheel v. Port of New York Authority, 457 F.2d 46, 49 (2d Cir.), cert. denied, 409 U.S. 983, 34 L. Ed. 2d 248, 93 S. Ct. 324 (1972). Standing is an essential element of subject matter jurisdiction, and the question presented is whether this action should be dismissed against any of these defendants for lack of subject matter jurisdiction because plaintiffs do not have standing to bring it.
The fundamental principles governing whether a plaintiff has standing to maintain an action in federal court are straightforward and familiar. A plaintiff must "allege such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial power on his behalf." Warth v. Seldin, 422 U.S. 490, 498-99, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975) (internal quotation omitted). "At the core of the standing doctrine is the requirement that a plaintiff 'allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.'" County of Riverside v. McLaughlin, 500 U.S. 44, 51, 111 S. Ct. 1661, 1667, 114 L. Ed. 2d 49, (quoting Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984)). The alleged injury cannot be "abstract" in character, O'Shea v. Littleton, 414 U.S. 488, 494, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974); it must be "distinct and palpable," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979) (internal quotation omitted). The Supreme Court has explained that the requirements for standing arise out of a "single basic idea -- the idea of separation of powers," Allen, 468 U.S. at 752, because they demarcate fundamental limits on the role of the federal courts in our tripartite system of government.
The Second Circuit has prescribed the following test to determine whether plaintiffs have the requisite standing, noting that, while it is "deceptively simple to state, standing entails a complex three-pronged inquiry":
First, plaintiffs must show that they have suffered an injury in fact that is both concrete in nature and particularized to them. Second, the injury must be fairly traceable to defendants' conduct. Third, the injury must be redressable by removal of defendants' conduct. The second and third prongs -- traceability and redressability -- often dovetail; essentially, both seek a causal nexus between the plaintiff's injury and the defendant's assertedly unlawful act. To establish standing, a plaintiff must plead all three elements.
In re United States Catholic Conference, 885 F.2d 1020, 1023-24 (2d Cir. 1989).
As this Court has noted before, a plaintiff may not use the procedural device of a class action to bootstrap himself into standing he lacks under the express terms of the substantive law. Angel Music Inc. v. ABC Sports, Inc., 112 F.R.D. 70, 74 (S.D.N.Y. 1986). It must be noted that the question of standing is totally separate and distinct from the question of plaintiff's right to represent a purported class under Rule 23. While standing to sue is an essential prerequisite to maintaining an action, whether in one's own right or as a representative of a class, these issues are not convertible. Standing to sue is an essential threshold which must be crossed before any determination as to class representation under Rule 23 can be made. Vulcan Society of Westchester County v. Fire Dep't of City of White Plains, 82 F.R.D. 379, 398 (S.D.N.Y. 1979).
There is no issue of standing with regard to the proposed class representatives and defendants NYCHA, Freddie Mac, the 1710 defendants, PSC, or the City in its capacity as a PHA. Each of the plaintiffs resides now or at the time that the action was filed in a dwelling unit owned or operated by these defendants. See Etuk v. Slattery, 936 F.2d 1433, 1440-41 (2d Cir. 1991). In the case of NYCHA, the Goffin home receives federal funds that are managed locally by NYCHA, as the local housing authority under Section 8. This was true at the time the action was filed and as far as the Court is aware is true at this time.
The complaint alleges the other necessary elements of standing. Namely that: 1) the plaintiffs have suffered an injury (elevated blood lead levels or exposure in their apartments to unacceptably high lead levels); 2) the defendants have failed to abate the lead as required by local and federal law, thus exposing the plaintiffs to the lead; and 3) that the injunctive relief sought, including notice, abatement of the lead and monitoring until such time as the abatement was complete, would address the harm, the exposure to the lead based paint.
According to the defendants, there are so many sources of lead that it should not be assumed that lead in the apartments is the source of the alleged injury. However, the law requires abatement of unacceptable levels of paint in the home, not just abatement when blood levels in children rise above a statutorily defined threshold. In addition, "the ingestion of household dust containing lead from deteriorating or abraded lead-based paint is the most common cause of lead poisoning in children." 42 U.S.C. § 4851; See Rosen Aff. P 24 (citing Agency for Toxic Substances and Disease Registry (ATSRD) of the Public Health Service's report: The Nature and Extent of Lead Poisoning in Children in the United States: A Report to Congress (1988) (the "ATSRD Report"). The causal connection alleged between the presence of lead in the homes and injury or threat of injury to the plaintiffs is sufficient to establish standing.
There are, however, issues regarding standing to pursue the injunctive relief sought with regard to the City, as an owner of a building, CAISI and Tebec. The City was a past owner of the Montgomery Avenue property at the time the action was filed by the German plaintiffs, but has not owned the building since May 8, 1992, fourteen months before the initial complaint was filed in this action. As a representative of the class, the Germans are seeking only injunctive relief against the defendant City. They have no standing to do this. The standing with respect to the damages claims is not contested by the City and relates to the individual relief sought by the Germans under the state law claims. Plaintiffs have alleged that the City is also liable to the class in its capacity as a PHA that provided funds to the unit through the CDBG program. The City does not deny that it is currently acting in such a capacity. There is standing for the class to sue the City as a PHA.
Caisi and Tebec are in a similar position. Neither of them was involved with the Montgomery Avenue property at the time the initial complaint was filed. For the same reasons, there is no standing to pursue the claims for injunctive relief against them.
C. Claims for Injunctive Relief are Not Moot with Respect to the 1710 Defendants, PSC, NYCHA, the City as a PHA or Freddie Mac
Defendants Freddie Mac and the City have also argued that the class claims for injunctive relief against them are moot as to these named plaintiffs. The standing doctrine evaluates a litigant's personal stake at the onset of a case, Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 2141 n. 4, 119 L. Ed. 2d 351 (1989); Robidoux v. Celani, 987 F.2d 931, 938 (2d Cir. 1993), "the mootness doctrine ensures that the litigant's interest in the outcome continues throughout the life of the lawsuit." Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993) (citing United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396-97, 100 S. Ct. 1202, 1208-09, 63 L. Ed. 2d 479 (1980); Etuk v. Slattery, 936 F.2d 1433, 1441 (2d Cir. 1991)).
Once the conduct of which a class representative complains is no longer directed at that person, the person's personal claim for injunctive relief from that conduct is moot. See Clarkson v. Coughlin, 783 F. Supp. 789, 795 (S.D.N.Y. 1992). For example, in Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (per curiam), the Second Circuit held that the plaintiff's claim for injunctive relief from solitary confinement was moot because the period of confinement had lapsed. The plaintiff could still pursue his claim for lost good time credits, however. Likewise, in Beyah v. Coughlin, 789 F.2d 986, 988-89 (2d Cir. 1986), the Court of Appeals held that the plaintiff's complaint directed at allegedly unconstitutional practices at a particular institution was moot to the extent it sought declaratory and injunctive relief once the plaintiff was transferred to a different institution. See also Lucas v. Hodges, 235 U.S. App. D.C. 63, 730 F.2d 1493, 1497 & n.10 (D.C. Cir.), vacated as moot, 738 F.2d 1392 (1984). To the extent that the Goffins seek such equitable relief individually against the Freddie Mac defendants, their claims are moot.
This does not mean, however, that this portion of the action should be dismissed. Under the more "flexible" approach applied to class claims, the complaint itself is not rendered moot merely because the named plaintiff's claim is moot. See County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 1667, 114 L. Ed. 2d 49 (1991); United States Parole Commission v. Geraghty, 445 U.S. 388, 400, 63 L. Ed. 2d 479, 100 S. Ct. 1202 (1980); Etuk v. Slattery, 936 F.2d 1433, 1441 (2d Cir. 1991); Washington v. Wyman, 54 F.R.D. 266, 270-71 (S.D.N.Y. 1971). From the time a class action is filed until the time a final determination pursuant to Rule 23 is made, the action is treated as if the class existed for purposes of mootness. See McLaughlin, 111 S. Ct. at 1167; Geraghty, 445 U.S. at 404. This provides unnamed members of the plaintiff class an opportunity to intervene in the action and to pursue their claims. Here, intervention was sought and obtained by the Goffins, indicating the strong likelihood that some other named plaintiff exists who will be able to represent the putative class adequately. See also Jane B. v. New York City Department of Social Services, 117 F.R.D. 64, 66-69 (S.D.N.Y. 1987).
The Court of Appeals has recently discussed, in great detail, the principles that underlie mootness doctrine with respect to the claims of the public housing population in Comer v. Cisneros, 37 F.3d 775, 797-99:
In general, "a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491 (1969) (internal quotation marks omitted)).
The mootness doctrine is riddled with exceptions, however. Among the exceptions pertinent to this case [is]...the "capable of repetition" doctrine, Sosna v. Iowa, 419 U.S. 393, 399- 400, 95 S. Ct. 553, 557-58, 42 L. Ed. 2d 532 (1975) (Iowa state court dismissed wife's petition for divorce because she failed to meet state's one-year residency requirement; not moot when wife met residency requirement because the problem to potential divorcees posed by the residency requirement was "capable of repetition, yet evading review"); Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S. Ct. 995, 998 n.2, 31 L. Ed. 2d 274 (1972) (challenge against Tennessee law barring persons from registering to vote unless, at the time of the next election, they resided in the State for at least one year and in a particular county for at least three months; not moot when litigant became eligible to vote); Roe v. Wade, 410 U.S. 113, 125, 93 S. Ct. 705, 712-13, 35 L. Ed. 2d 147 (1973) (pregnant woman challenged anti-abortion statute; not moot when pregnancy terminated); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911); see also DeFunis v. Odegaard, 416 U.S. 312, 319, 94 S. Ct. 1704, 1707, 40 L. Ed. 2d 164 (1974) (per curiam) (holding that equal protection claim in pre-Bakke affirmative action suit was mooted by plaintiff's being registered in his final quarter of law school).
The Court of Appeals has noted that the application of these various mootness doctrines depends in part on whether the court is presented with a class action because, in general, if the claims of the named plaintiffs become moot prior to class certification, the entire action becomes moot. Board of School Commissioners of Indianapolis v. Jacobs, 420 U.S. 128, 129-30, 95 S. Ct. 848, 849-50, 43 L. Ed. 2d 74 (1975) (per curiam). In contrast, class certification will preserve an otherwise moot claim. McLaughlin, 500 U.S. at 51-52. "In class actions ... courts have come to recognize that an individual plaintiff may continue to represent the interests of others even after any prospect of individual recovery has vanished." 13A Charles A. Wright, et al., Federal Practice and Procedure § 3533.9 (1984 & Supp.1994); see also Gerstein, 420 U.S. at 110 n. 11, 95 S. Ct. at 861 n. 11.
Under the appropriate circumstances, class certification may relate back to the filing of the complaint. Comer, 37 F.3d at 800 (citing McLaughlin, 500 U.S. at 52, 111 S. Ct. at 1667; Sosna, 419 U.S. at 402, n. 11, 95 S. Ct. at 559, n. 11. One such circumstance is where the claims are "'so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires.'" McLaughlin, 500 U.S. at 52, 111 S. Ct. at 1667 (quoting Geraghty, 445 U.S. at 399, 100 S. Ct. at 1210); Gerstein, 420 U.S. at 110 n. 11, 95 S. Ct. at 861 n. 11 (class action challenging state practice of holding for trial without probable cause hearing; named class representatives convicted prior to Supreme Court review; not moot because the nature of pretrial detention is such that "it was most unlikely" that the courts would determine the constitutional challenge prior to conviction or release; furthermore, the case was capable of repetition); Comer, 37 F.3d at 800. In such cases, the courts permit the class certification to relate back to the filing of the complaint and hold that the plaintiffs have properly preserved the merits of the case for judicial resolution. Swisher v. Brady, 438 U.S. 204 at 213 n.11, 98 S. Ct. at 2705 n.11 (1978); Sosna, 419 U.S. at 402 n.11, 95 S. Ct. at 559 n.11.
In Comer, even though a class had not yet been certified, the Court of Appeals held that when the claims of the named plaintiffs became moot prior to class certification, "we need not decide whether the potential mootness of the claims of the named plaintiffs moots the entire case because, as we stated above, this is certainly the type of harm that is 'capable of repetition, yet evading review.'" citing Sosna, 419 U.S. at 399-400, 95 S. Ct. at 557-58. Comer, 37 F.3d at 800. In Comer minority residents brought a class action on behalf of city public housing project residents and applicants for federal housing assistance alleging violations of the Fair Housing Act. In determining that the claims related back to the date of the original filing, the Court of Appeals stated in the circumstances of that case, "in particular, the transitory nature of the public housing market ...." the case would relate back to the original filing.
In this case, the Goffins' original complaint was filed on August 22, 1994. The complaint asked for class certification and for class action equitable relief. At the time that the complaint was filed the claims against Freddie Mac were not moot. The Court finds that the same issues of a transitory population exist in these circumstances. In addition, we have seen in the short life of this case how frequently ownership of buildings turns over. Applying the "capable of evading review" exception to this case, and following the direction established in Comer, the class certification relates back to the original filing and Freddie Mac is an appropriate defendant for the plaintiff class that the Goffins seek to represent.
Thus after reviewing the parties for standing and mootness, the defendants remaining in the motion for certification of the class include 1710, PSC and NYC as a PHA under the claims brought by the German plaintiffs and Freddie Mac as the owner and NYCHA as the PHA under the claims brought by the Goffin plaintiffs.
D. The Requirements of Rule 23(a)
Rule 23(a) provides that:
one or more members of a class may sue or be sued 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 or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
If these criteria are not met, an action may not be maintained as a class action. F. R. C. P. Rule 23(b). Each of these criteria is considered in turn below. In addition, since there are several defendants which have non-overlapping relationships with the proposed plaintiff class, the requirements of 23(a) will be assessed, where necessary, with respect to each defendant -- as defining a potential sub-class -- separately. See Fed. R. Civ. P. 23(c)(4)(B).
1. Numerosity and Impracticability
Rule 23(a)(1) requires that the class be "so numerous that joinder of all members is impracticable." Impracticability means difficulty or inconvenience of joinder; the rule does not require impossibility of joinder. Northwestern National Bank of Minneapolis v. Fox & Co., 102 F.R.D. 507, 511 (S.D.N.Y. 1984); Goldstein v. North Jersey Trust Company, 39 F.R.D. 363, 367 (S.D.N.Y. 1966). Precise quantification of the class members is not necessary because the court may make "common sense assumptions" to support a finding of numerosity. In re Data Access Sys. Sec. Litig., 103 F.R.D. 130, 137 (D.N.J. 1984), rev'd on other grounds, 843 F.2d 1537 (3d Cir.), cert. denied., 488 U.S. 849 (1988).
Plaintiffs' proposed class is so numerous that joinder of all members is impracticable. Occupied residential units acquired by Freddie Mac, between 1990 and August 1994, number 747 units nationwide, with 187 of them in New York City. This number does not include any units acquired before 1990 which may increase the size of the potential class. Many of these units may well house members of this class.
It is alleged that the City owns and administers funds under CDBG, as well as other federal programs to over 30,000 units. While there are no specific estimates of the number of units managed by NYCHA, plaintiffs place the number of individuals living in NYCHA associated housing in the thousands. NYCHA does not refute this.
The 1710 defendants own at least the 49 units in the Montgomery property. There is no information on the record regarding the number of potential class members in these units. The Court agrees with the 1710 defendants that the number is identifiable and that joinder of plaintiffs located at one address should be possible. The Court therefore denies a motion for class certification as it relates to the 1710 defendants.
In so far as there has been no individual estimate of the number of units managed by PSC, class certification is denied for lack of numerosity against this defendant as it was against the defendant owner of the building.
In the case of the remaining class defendants, joinder of the hundreds or thousands of individuals who fit within the specified classes here, where "the actual number of individuals cannot be ascertained with certainty," is surely impracticable. See Stenson v. Blum, 476 F. Supp. 1331, 1335 (S.D.N.Y. 1979). See also McCoy v. Ithaca Hous. Authority, 559 F. Supp. 1351, 1355 (N.D.N.Y. 1983).
Plaintiffs need not establish the precise number of class members in order to meet the numerosity requirement. Ellender v. Schweiker, 550 F. Supp. 1348, 1359 (S.D.N.Y. 1982), app. dism'd, 781 F.2d 314 (2d Cir. 1984), cert. denied, 479 U.S. 914 ... (1986). It is permissible for the plaintiffs to rely on reasonable inferences drawn from the available facts. McNeill v. New York City Housing Authority, 719 F. Supp. 233, 252 (1989).
Here, as in McNeill, more precise information as to the numbers of persons affected is within defendants' control. Nevertheless, "there is something within the record from which it can be inferred that a class does exist," and "a rough estimate could be made." See Clarkson v. Coughlin, 783 F. Supp. 789, 798 (S.D.N.Y. 1992). Even where the estimated class membership is only in the "hundreds," and "the exact number of class members could not be determined because the pertinent information was within the defendants' control," class certification is proper. Id. (citing Folsom v. Blum, 87 F.R.D. 443, 445 (S.D.N.Y. 1980)). See also Lewis v. Gross, 663 F. Supp. 1164, 1169 (E.D.N.Y.) (estimated 2,000 members); Ventura v. New York City Health & Hospitals Corp., 125 F.R.D. 595, 599 (S.D.N.Y. 1989) (estimated class of at least 100 members). In fact, the courts in this circuit have routinely held that classes smaller than the class proposed here are sufficiently numerous for class certification. See, e.g., Korn v. Franchard Corp., 456 F.2d 1206, 1209 (2d Cir. 1972) (certifying class which may be limited to 70 investors); McNeill, 719 F. Supp. at 252 (1,059 Section 8 tenants whose subsidies were suspended or terminated); Fidelis Corp. v. Litton Industries, Inc., 293 F. Supp. 164, 170 (S.D.N.Y. 1968) (certifying class of 35 - 70 individuals). In sum:
there is no magic minimum number that breathes life into a class, see Bruce v. Christian, 113 F.R.D. 554, 556 (S.D.N.Y. 1986), and lack of knowledge of the exact number of persons affected is not a bar to certification where the defendants alone have access to such data, see McNeill v. New York City Housing Authority, 719 F. Supp. 233, 252 (S.D.N.Y. 1989); Folsom v. Blum, 663 F.R.D. 443, 445 (S.D.N.Y. 1980) ....
Clarkson v. Coughlin, 783 F. Supp. at 798.
The number of plaintiffs living in units owned by Freddie Mac or receiving funds through the City or NYCHA in their capacity as PHA's certainly meet the requirement of 23 (a)(1).
2. Commonality and Predominance
Rule 23(a)(2) and (3) require that, for an action to be properly maintained as a class action, there must be questions of law or fact common to the class which predominate over questions peculiar to individual members of the class. When such common questions do predominate, differences among the questions raised by individual members will not defeat commonality. See Shelter Realty Corp. v. Allied Maintenance Corp., 75 F.R.D. 34, 37 (S.D.N.Y. 1977); appeal dismissed, 574 F.2d 656 (2d Cir. 1978).
"It is not necessary that each and every issue be raised by each and every member of the class or class representatives and a grouping of similar claims has generally beer allowed." Vulcan Soc'y v. Fire Dep't, 82 F.R.D. 379, 401 (S.D.N.Y. 1979). In fact, a single common question has been sufficient to satisfy the commonality requirement. See Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y. 1992); McCoy v. Ithaca Housing Authority, 559 F. Supp. 1351, 1355 (N.D.N.Y. 1983).
Plaintiffs assert that the following questions of law or fact are common to all plaintiffs in the proposed class:
a) whether lead paint in residential dwellings creates a hazard to residents, particularly children and women of childbearing age;
b) whether defendants are aware of their obligations not to expose tenants to lead poisoning hazards in buildings that they own, manage or operate or where they administer federal funds;
c) whether defendants properly inspected these properties;
d) whether defendants properly maintained these properties full of lead hazards;
e) whether defendants warned plaintiffs on the lead hazards in these buildings;
f) whether children should be medically monitored to protect against lead poisoning and its effects;
g) whether defendants should be required to create a fund to pay for ongoing medical surveillance and monitoring to pay for ongoing medical surveillance and monitoring of children defendants have wrongfully exposed to lead poisoning;
h) whether defendants should be required to notify, warn, and provide monitoring for lead hazards that they know or should know exist on the properties that they own, manage, or operate or where they administer federal funds;
j) whether defendants' actions constitute negligence per se;
k) whether defendants are strictly liable for the injuries to plaintiffs;
l) whether defendants are liable for punitive damages
m) whether defendants should be prohibited from evicting any tenants without demonstrating that the premises are free of lead hazards;
n) whether defendants should be prohibited from withholding security deposits from tenants in apartments with lead hazards; and
o) whether defendants should be required to notify tenants of their right to withhold rent because of lead hazards.
The plaintiffs describe several sets of scenarios which define the sub-classes that they request including plaintiffs. The specific facts of the circumstances might arise in a case where damages were sought for every class member, but in this action for injunctive relief, the specific types of situations can be resolved by the designation of sub-classes.
Fed R. Civ. Proc. 23 (c)(4).
Further proceedings may reveal that some of the questions raised by the plaintiffs require individual inquiries, inappropriate for a class action, which can be resolved either by further defining the scope of the class action, by designating further sub-classes or by decertifying the class if that were to become necessary.
Even if "each member of the class presents a slightly different factual situation, each presents a common legal question." Stenson v. Blum, 476 F. Supp. at 1335 (citing Lyons v. Weinberger, 376 F. Supp. 248, 263 (S.D.N.Y. 1974); 3B Moore's Federal Practice P 23.06-1 at 23-176, 23-180 (3d ed. 1978)). Here, all plaintiffs have a number of legal claims against defendants.
The common questions of law generally pertain to whether defendants have failed to abide by the laws' requirements that housing owners and administrators of federal housing program funds provide and assure provision of decent, safe, and sanitary housing to the residents, in compliance with federal, state, and local housing standards, including, e.g., requirements of LPPPA, 42 U.S.C. § 4822 et seq., and federal regulations thereunder, 24 C.F.R. pt. 35; 42 U.S.C. § 1437(f) and federal regulations thereunder, 24 C.F.R. §§ 882.109(i), 882.116, 882.404(c); New York City Administrative Code §§ 27-2013(h) and 27-2126(b); and 24 R.C.N.Y. §§ 173.13(d) and 173.14.
In terms of the common law claims, there is a question as to what level of lead constitutes a danger. While certain levels have been recited in local and federal laws, the plaintiffs argue lower levels constitute harm.
There are sufficient common questions of fact and law to satisfy this requirement.
Rule 23(a)(3) requires that the claims asserted by plaintiffs on behalf of a proposed class be typical of the claims of the other members of the class.
Typicality refers to the nature of the claim of the class representatives and not to the specific facts from which the claim arose or relief is sought. The proper inquiry is whether other members of the class have the same or similar injury, whether the action is based on conduct not special or unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.
Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87, 99 (S.D.N.Y 1981); see Gary Plastic Packaging Corp. v. Merrill Lynch, 903 F.2d 176, 179 (2d Cir. 1990).
The plaintiffs in this action, like every other member of the proposed Class, are tenants in multiple dwellings in New York City that receive federal funding whose health is the concern of local, state and federal regulations. The fact that the named plaintiffs are seeking damages on their own behalf does not make them inappropriate as class representatives. See Green v. Wolf, Corp., 406 F.2d 291, 300 (holding that differing levels of damages does not dictate against use of class action); Probe v. State Teachers' Retirement Sys., 780 F.2d 776, 780 (9th Cir. 1986) (holding that plaintiffs' individual request for damages does not prevent class certification under 23(b)(2)); Gelb v. A.T.& T. Co., 150 F.R.D. 76 (S.D.N.Y. 1983) (same). Nor does the Court believe that the putative class representatives are subject to such individualized defenses which threaten to become the focus of litigation. See Gary Plastic Packaging, 903 F.2d at 179. If this were to become the case, certainly other class representatives could be appointed to represent the class on the common issues relating to the injunctive relief sought.
In its motion to dismiss, NYCHA has raised its objection to plaintiffs holding NYCHA liable as an owner of buildings. While it is undisputed that NYCHA owns many dwelling units in the City, none of the named plaintiffs live in such units. As such, NYCHA can be a defendant only in its capacity as a public housing authority. For the reasons discussed above in the standing section, the City will also be a defendant in the class action as a public housing authority.
This requirement has been met, however, as to the other remaining defendants liable to the proposed class.
Rule 23(a)(4) requires that the plaintiffs be adequately representative of the class. The Court of Appeals has held plaintiffs must satisfy both prongs of a two-pronged test to qualify as adequate representatives: (1) the named plaintiffs' interests must not conflict with the class members' interests, and (2) the named plaintiffs and their attorney must be able to prosecute the action vigorously. General Tel. Co. v. Falcon, 457 U.S. 147, 157 & n.13, 72 L. Ed. 2d 740, 102 S. Ct. 2364 (1982); Dean v. Coughlin, 107 F.R.D. 331 at 334. The commonality and typicality requirements blend together in determining whether the representative plaintiffs' claims are typical enough of the classwide claims that the representatives will adequately represent the class. General Tel. Co. v. Falcon, 457 U.S. at 157 & n.13.
The plaintiffs must show, first, that there is an absence of conflict and antagonistic interests between them and the class members, and second, that the plaintiffs' counsel is "qualified, experienced and capable." Ross v. A.H. Robins Co., 100 F.R.D. 5, 7 (S.D.N.Y. 1982); accord In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir. 1992).
The named plaintiffs' representatives have stated a substantial stake in the controversy and are able to protect the interests of the class. See McNeill v. New York City Housing Authority, 719 F. Supp. at 253. While defendants have raised issues with regard to the depth of understanding that the named plaintiffs have about the class action component of this suit, the Court is satisfied that they understand it sufficiently well to act as class representatives.
The Court finds no fundamental conflict or inconsistency between the claims of the proposed class members. See Caleb v. DuPont De Nemours, 110 F.R.D. 316, 319 (1986). Each of the class members has an interest in seeing that any dangerous lead-paint conditions are fixed in their homes. The class ...