United States District Court, N.D. Indiana, South Bend Division
EMILY HIZER, on behalf of herself and on behalf of a class of those similarly situated, Plaintiff,
PULASKI COUNTY, INDIANA, Defendant.
OPINION AND ORDER
DEGUILIO JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on a Motion for Class
Certification filed by Plaintiff Emily Hizer
(“Plaintiff”). [DE 4] Defendant Pulaski County
(“Defendant”) does not oppose certification of
the Plaintiff's proposed class. [DE 20] Also pending is
Plaintiff's Motion to Submit Evidentiary Material in
support of her Motion for Class Certification. [DE 23]
Plaintiff's Motion to Submit Evidentiary Material is
granted as unopposed. As to the Motion for Class
Certification, for the reasons stated herein, the Court will
grant the Motion, approve the Proposed Class, and appoint
class counsel. The Court will lastly direct the parties to
submit a proposed notice to class members for review and
presents a claims on her own behalf, and on the behalf of
those similarly situated, for a violation of both the
Americans with Disabilities Act (the “ADA”), 42
U.S.C. § 12131, et seq., and the Rehabilitation Act, 29
U.S.C. § 794. [DE 1 ¶¶ 1, 89] The Pulaski
County Courthouse is a three-story building located in the
county seat of Winamac, Indiana. [DE 1 ¶¶ 24-25]
The first floor of the Courthouse includes the offices of the
County Assessor and County Surveyor, the second floor of the
Courthouse holds the offices of the County Auditor, County
Treasurer, and the Clerk of the Courts, and the third floor
of the Courthouse houses the Pulaski Circuit Court, including
its offices and the courtroom. Id. ¶¶
25-26, 29. The Pulaski County Commissioners also meet several
times per month on the third floor of the Courthouse.
Id. ¶¶ 27-28.
floors of the Pulaski County Courthouse are connected by a
stairway as well as an elevator. Id. ¶ 30. The
elevator's dimensions measure approximately 3 feet by 4
feet, and it requires manual operation by way of holding a
button to make it move up or down. Id. ¶¶
37, 41. The elevator does not contain an automatic door and
instead must be opened manually. Id. ¶ 33.
Courthouse's public restrooms are located on the first
floor. Id. ¶ 58. Plaintiff alleges that the
entrances to these restrooms are not wide enough for a person
in a wheelchair to be able to enter them, nor are the stalls
in the restrooms large enough for a person with a physical
disability to maneuver within. Id. ¶¶ 59,
allegedly lives in Winamac, Indiana, and has multiple
sclerosis, which requires her to use a motorized scooter for
mobility. Id. ¶¶ 63, 65-66. For various
reasons, Plaintiff alleges that she is frequently required to
visit the Courthouse: she works as a legal assistant for her
father, which necessitates her access to the Clerk's
office and other parts of the Courthouse; and she sits on the
ADA Board, which meets regularly on the first floor of the
Courthouse. Id. ¶¶ 67-71. Based on her
physical condition and the structural characteristics of the
Courthouse's elevator and public restrooms, Plaintiff
alleges that she has great difficulty in accessing the
government services provided at the Courthouse and that other
persons with physical disabilities experience the same issue.
Id. ¶ 1.
Court has jurisdiction over Plaintiff's claims under 28
U.S.C. § 1331.
of the Federal Rules of Civil Procedure governs the
certification of class actions in federal court. Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541,
2548, 180 L.Ed.2d 374 (2011). Rule 23(a) ensures that the
named plaintiffs are appropriate representatives of the class
whose claims they wish to litigate. Id. at 2550.
Rule 23(a)'s four requirements- numerosity, commonality,
typicality, and adequacy-effectively limit the class claims
to those fairly encompassed by the named plaintiff's
claims. Id. (citations and internal quotations
omitted). If all of these prerequisites are met, a court must
also find that at least one of the subsections of Rule 23(b)
is satisfied. In this case, Plaintiff seeks class
certification under Rule 23(b)(2). Rule 23(b)(2) applies when
“the party opposing the class has acted or refused to
act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole.”
to meet any of the Rule's requirements precludes class
certification.” Arreola v. Godinez, 546 F.3d
788, 794 (7th Cir. 2008). The Plaintiff, as the party seeking
class certification, assumes the burden of demonstrating that
certification is appropriate. Trotter v. Klincar,
748 F.2d 1177, 1184 (7th Cir. 1984); Dukes, 131
S.Ct. at 2551 (“A party seeking class certification
must affirmatively demonstrate his compliance with the
Rule-that is, he must be prepared to prove that there are in
fact sufficiently numerous parties, common questions of law
or fact, etc.”).
district court has broad discretion to determine whether
certification of a class action lawsuit is appropriate.
Arreola, 546 F.3d at 794. The United States Supreme
Court has made clear, however, that the district court is to
perform a “rigorous analysis” to determine that
the prerequisites of Rule 23 are satisfied when a class is to
be certified because actual, not presumed, conformance with
Rule 23(a) remains indispensable. Dukes, 131 S.Ct.
at 2551-52 (citing Gen. Tel. Co. of Sw. v. Falcon,
457 U.S. 147, 160-61 (1982)). Frequently, that
“rigorous analysis” will entail some overlap with
the merits of the plaintiff's underlying claim, and this
cannot be helped. Id. (noting that sometimes
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177
(1974), is mistakenly cited for the proposition that the
merits of the claims for relief may not be considered in
adjudicating the motion for class certification, and
clarifying that such a proposition is “the purest
dictum and is contradicted by other cases”). The
purpose of the “rigorous analysis” is not to test
the merits of the claim, however, but to determine whether
the claim meets the requirements of Rule 23(a). See Szabo
v. Bridgeport Machs., Inc., 249 F.3d 672, 677 (7th Cir.
2001). “In conducting this analysis, the court should
not turn the class certification proceedings into a dress
rehearsal for the trial on the merits.” Messner v.
Northshore Univ. Healthsys., 669 F.3d 802, 811 (7th Cir.
2012). However, “[i]f there are material factual
disputes, the court must ‘receive evidence . . . and
resolve the disputes before deciding whether to certify the
class.'” Id. (alteration in original)
(citing Szabo, 249 F.3d at 676).
a district court must conduct its own independent inquiry
under the “rigorous analysis” standard even
where, as here, neither party opposes certification. See
Wallace B. Roderick Revocable Living Trust v. XTO Energy,
Inc., 725 F.3d 1213, 1217, 1219 (10th Cir. 2013)
(district court has independent obligation to conduct
rigorous analysis to determine whether requirements of both
Fed.R.Civ.P. 23(a) and (b) have been met); Valley Drug
Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1188 (11th
Cir. 2003) (district court abused its discretion when it
failed to make complete independent inquiry, and wrongly
certified class after finding only that defendants had
“not seriously contested” that plaintiff had met
requirements of Fed.R.Civ.P. 23(a)).
Rule 23 analysis is distinct from the issue of standing,
however. “That a suit may be a class action …
adds nothing to the question of standing, for even named
plaintiffs who represent a class ‘must allege and show
that they personally have been injured, not that injury has
been suffered by other, unidentified members of the class to
which they belong.'” Simon v. Eastern Ky.
Welfare Rights Organization, 426 U.S. 26, 40 n. 20, 96
S.Ct. 1917, 48 L.Ed.2d 450 (1976) (quoting Warth v.
Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197 (1975));
see also Herbert Newberg et al., Newberg on
Class Actions § 3:15 (5th ed. 2012)
(“[S]tanding is one of the keys necessary to open the
door to the federal courthouse. Rule 23 merely provides a
procedural doorstop which holds the door open for qualified
class members, once it has been opened by the person or
persons initially seeking entry.”) (citations omitted).
But, while standing is a prerequisite for the named
Plaintiff, the passive class action members (once the lawsuit
is certified as such), “need not make any individual
showing of standing because the standing issue focuses on
whether the named plaintiff is properly before the court, not
whether represented parties or absent class members are
properly before the Court.” Newberg § 2:3.
like any other individual, a class representative's
standing is measured by the test articulated in Lujan v.
Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992). Plaintiff must demonstrate that she (1)
has suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.
Id., at 560-61, 112 S.Ct. 2130. Here, Plaintiff has
sufficiently alleged standing. Plaintiff suffers from a
physical disability. Her job as a legal assistant and her
involvement on the County's ADA Board require her to
frequently visit the Courthouse, and she is therefore
repeatedly subjected to embarrassment and an enhanced burden
when having to manage the Courthouse's allegedly
inaccessible features, namely the elevator and public
restrooms. [DE 1 ¶¶ 65-72]
Plaintiff has standing to sue, the Court now turns to the
issue of certification.