United States District Court, N.D. Indiana, Hammond Division
MARY GUTIERREZ and SHAWN POLK, on their own behalfs and on behalf of a class of those similarly situated, Plaintiffs,
CITY OF EAST CHICAGO and the HOUSING AUTHORITY OF THE CITY OF EAST CHICAGO, Defendants.
OPINION AND ORDER
R. CHERRY, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiffs' Motion to
Compel Discovery [DE 59], filed by Plaintiffs Mary Gutierrez
and Shawn Polk on behalf of the certified class on January 6,
2017. Defendant Housing Authority of the City of East Chicago
(“ECHA”) filed a response on January 20, 2017.
Plaintiffs filed their reply on January 25, 2017.
October 5, 2016, the Court granted Plaintiffs' Motion for
Preliminary Injunction, issuing a preliminary injunction
prohibiting ECHA from conducting warrantless, non-consensual
searches of tenant apartments when there are no exigent
circumstances and requiring ECHA to obtain consent from the
tenant or, if consent is not given or cannot be obtained, to
obtain a warrant for all administrative searches that are not
based on exigent circumstances. The Court also issued a
preliminary injunction requiring ECHA and the City of East
Chicago to end their warrantless drug search policy using
drug-sniffing dogs as well as all other warrantless searches
without exigent circumstances or consent. The same date, the
Court granted Plaintiffs' Motion for Class Certification
under Federal Rule of Civil Procedure 23(b)(2), certifying a
class consisting of “all current and future tenants of
properties owned and managed by the East Chicago Housing
Authority (ECHA).” (ECF 54, p. 2). The Court found that
the class consisted of approximately 645 members.
November 17, 2016, Plaintiffs served Defendant ECHA with
their First Interrogatory, requesting “the names and
mailing addresses of all tenants currently residing in
properties owned and managed by ECHA” as well as the
addresses of unoccupied units owned and managed by ECHA.
December 21, 2016, ECHA served a written response, objecting
that the interrogatory is unreasonably overbroad. ECHA also
objected that the Federal Rules of Civil Procedure do not
mandate that class members be addressed by name and that
“sufficient notice can be provided to all tenants
without addressing them by name.” (ECF 59-2). ECHA
proposed providing the addresses of current residents, but
not the names.
following day, counsel conferred telephonically in an attempt
to resolve the dispute. Counsel for Plaintiffs explained that
Plaintiffs sought the names of the tenants not only for
purposes of notification of the preliminary injunction but
also to identify individuals who, by virtue of being subject
to ECHA's search and inspection policy, had information
relevant to Plaintiffs' claims. The parties were unable
to reach an agreement. On January 6, 2017, Plaintiffs filed
the instant Motion to Compel Discovery.
seek to compel Defendant ECHA to release the names and
mailing addresses of all current residents and a list of the
unoccupied units in buildings owned and managed by Defendant
ECHA. Plaintiffs argue that the information is required for
Plaintiffs' counsel to provide adequate notice of the
preliminary injunction and to assist Plaintiffs' counsel
in the discovery process by identifying relevant witnesses
and facts about ECHA's warrantless search policy.
Rule of Civil Procedure 37(a)(3)(B) provides, in relevant
part, that a “party seeking discovery may move for an
order compelling an answer . . . if . . . a party fails to
answer an interrogatory submitted under Rule 33.”
Fed.R.Civ.P. 37(a)(3)(B)(iii). ECHA, the objecting party,
bears the burden of showing why the discovery request is
improper. McGrath v. Everest Nat'l Ins. Co., 625
F.Supp.2d 660, 670 (N.D. Ind. 2008). The Court addresses each
of Plaintiffs' bases for seeking this discovery in turn.
Plaintiffs argue that the names and addresses of tenants
currently living in an ECHA owned property, as well as a list
of vacant properties, are necessary to provide adequate
notice to the members of the certified class of their rights
and of the content of the Preliminary Injunction issued by
the Court. In informal discussions, ECHA communicated its
belief that Plaintiffs can sufficiently contact the class
members without using their names. Plaintiffs argue that
Federal Rule of Civil Procedure 23(c)(2)(B) requires
“the best notice that is practicable under the
circumstances, including individual notice to all members who
can be identified through reasonable effort.”
Fed.R.Civ.P. 23(c)(2)(B); see also Oppenheimer Fund, Inc.
v. Sanders, 437 U.S. 340, 349 (1978).
the citation to Rule 23(c)(2)(B) is inapposite for two
reasons. First, Plaintiffs are not asking for the class
members' names and addresses to provide class-wide notice
within the meaning of Rule 23(c)(2)(A), which governs classes
certified under Rule 23(b)(2), as in this case. For a Rule
23(b)(2) class, the “court may direct appropriate
notice to the class.” Fed.R.Civ.P. 23(c)(2)(A). The
Court has not done so in this case. Rather, Plaintiffs use
the term “notice” to mean their intention to
communicate with class members on important developments in
their case, including the Court's entry of the
even if Plaintiffs were seeking formal notice, Rule
23(c)(2)(B) and its notice requirement of “best notice
that is practicable, ” cited by Plaintiffs, applies
only to a class certified under Rule 23(b)(3). Again, the
class in this case was certified under Rule 23(b)(2) and is
governed by the notice provision of Rule 23(c)(2)(A), which
does not include the “best notice that is
practicable” language of Rule 23(c)(2)(B). The United
States Supreme Court has recognized that members of a class
certified under Rule 23(b)(2) are not entitled to notice or
opt out rights as are members of a class certified under Rule
23(b)(3). Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 360, 362-63 (2011).
Plaintiffs' reliance on the notice requirements of Rule
23(c)(2)(B) is misplaced, counsel's desired intent to
communicate with the class is well taken, especially to make
them aware of the Preliminary Injunction. The class in this
case has already been certified, and ECHA offers no argument
why class counsel should not be in communication with the
members of the class regarding the preliminary injunction and
the ongoing litigation. The Court ...