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Gutierrez v. City of East Chicago

United States District Court, N.D. Indiana, Hammond Division

March 2, 2017

MARY GUTIERREZ and SHAWN POLK, on their own behalfs and on behalf of a class of those similarly situated, Plaintiffs,



         This 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.


         On 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.

         On 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.

         On 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.

         The 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.


         Plaintiffs 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.

         Federal 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.

         First, 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).

         However, 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 Preliminary Injunction.

         Second, 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).

         Although 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.[1] 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 ...

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