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Hizer v. Pulaski County

United States District Court, N.D. Indiana, South Bend Division

January 8, 2018

EMILY HIZER on her own behalf and on behalf of a class of those similarly situated, Plaintiffs,
v.
PULASKI COUNTY, INDIANA, Defendant.

          OPINION AND ORDER

          JON E. DEGUILIO, JUDGE UNITED STATES DISTRICT COURT

         The parties have filed an Amended Stipulation to settle all issues in this case [DE 32] (the “Proposed Stipulation”), as well as an Amended Joint Motion to set the matter for a fairness hearing and approve notice to the class members pursuant to Fed.R.Civ.P. 23(e). [DE 33] For the reasons stated herein, the Court will preliminarily approve the Proposed Stipulation and set the matter for a final approval hearing.

         BACKGROUND

         Plaintiff Emily Hizer, on her own behalf and on behalf of a class of those similarly situated, filed her complaint for declaratory and injunctive relief under the Americans with Disabilities Act (the “ADA”) and the Rehabilitation Act (the “RA”) against Pulaski County, Indiana, on December 27, 2016. [DE 1] On September 11, 2017, the Court certified this case as a class action under Fed. R. Civ. P 23(a) and (b)(2), approving a plaintiff class defined as:

[A]ll persons with mobility impairments or other physical disabilities who access or attempt to access, or who will access or will attempt to access, the Pulaski County Courthouse.

[DE 25] The Court further directed the parties to submit a proposed notice of certification for review and approval by November 27, 2017. [DE 25; DE 29] On November 27, the parties filed their original stipulation, joint motion for a fairness hearing, and proposed notice [DE 30; DE 31], but amended those documents shortly thereafter to reflect an adjusted timeline. [DE 32; DE 33 ¶ 1]

         The underlying allegations have been set forth in the Court's September 11, 2017, Order, and need not be rehashed here. According to the current Proposed Stipulation, since the filing of this lawsuit, the County has adequately altered the public restrooms in the courthouse to make them fully compliant with the ADA and RA. [DE 32 ¶ 6] Plaintiffs agree that no further action need be taken with respect to the courthouse's restrooms. Id. The Proposed Stipulation further indicates that the County will install a new ADA- and RA-compliant elevator in the courthouse no later than September 30, 2018. Id. ¶ 7. In the meantime, the County will use its best efforts to keep the existing elevator in operation and will otherwise provide temporary accommodations for persons with physical disabilities who wish to make use of services or attend meetings held on the upper floors of the courthouse. Id. Upon the Court's final approval of this Proposed Stipulation, the County will pay Ms. Hizer $12, 000, to be transferred to the ACLU of Indiana, a not-for-profit corporation, for attorneys' fees and costs accruing by the date of approval, or prior to June 30, 2018, whichever date is later. Id. ¶ 8. Once the elevator has been constructed and certified as compliant, the parties will file a joint motion to dismiss this case without prejudice. Id. ¶ 9. Attorneys for each side signed the Proposed Stipulation.

         DISCUSSION

         Federal Rule of Civil Procedure 23(e) governs the voluntary dismissal of class actions:

The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:
(1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal.
(2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.
(3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.
(4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier ...

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