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FOX v. UNITED STATES HUD

June 24, 1976

BARBARA FOX, et al.
v.
THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al.



The opinion of the court was delivered by: NEWCOMER

Newcomer, District Judge.

 Presently before the court is plaintiffs' motion for class certification under Fed. R. Civ. P. 23(a) and 23(b)(2). The motion will be granted, as to all four subclasses. Certification of subclass I raises legal and factual issues which require discussion.

 Subclass I is defined as:

 
"Present residents (owners and renters) of the Washington Square West, Unit 2 Urban Renewal Area who are not now scheduled to be displaced through urban renewal activities, who do not qualify for federally assisted low or low-moderate income housing, but who have moved into the Project Area or remained in the Project Area understanding and relying on the fact that the Project Area was comprised of a diverse and integrated racial and ethnic mix of people and who desire and intend to live in such an area; this subclass is represented by plaintiffs Fox, Lerner and Teaford."

 The representative plaintiffs for subclass I allege a cause of action under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. ยง 3601, et seq. Their standing to bring an action under this section is being challenged. The defendants also contend that proposed subclass I does not satisfy the numerosity and typicality requirements of Rule 23. The basis of the numerosity objection is that the size of the class cannot be estimated because its members are to be identified by a vaguely defined state of mind, *fn2" and therefore it is impossible to know whether "the class is so numerous that joinder of all members is impracticable." Rule 23(a). On the issue of typicality, defendants urge that the proposed representatives of subclass I have interests adverse to other members of the subclass and of all three of the other subclasses.

 STANDING

 Defendants previously challenged this subclass on the grounds of standing in a motion to dismiss which was denied on June 26, 1975. We have allowed reconsideration of this issue because of the intervening Supreme Court decision in Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). The precise question for decision is whether Warth prevents plaintiffs from continuing to rely on Trafficante Metropolitan Life Insurance Co., 409 U.S. 205, 34 L. Ed. 2d 415, 93 S. Ct. 364 (1972) as a basis for standing. The plaintiffs in Trafficante were white tenants residing in an apartment complex. They were challenging alleged discrimination by the complex's owner against non-white persons seeking to become tenants there. The Court held that the plaintiffs suffered individualized injury *fn3" consisting of "the loss of important benefits from interracial associations." Further, the Court stated that Title VIII of the Civil Rights Act of 1968, was intended by Congress to be a far-reaching attack on discriminatory practices in the housing market, *fn4" and concluded that the Act extended standing to the fullest extent of the scope of Article III of the Constitution.

 Warth v. Seldin, supra, was a suit challenging alleged unconstitutional exclusionary zoning practices by Penfield, New York, a suburb of Rochester, New York. The Supreme Court denied standing to five putative plaintiffs (or groups of plaintiffs). Plaintiff Metro-Act of Rochester was a non-profit association dedicated to promoting open housing. Nine percent of its members were Penfield residents. In its decision denying standing to the association, the Court noted that these plaintiffs had not pleaded or argued a violation of Title VIII. Furthermore, the Court grounded its decision on the prudential, judicially created limitations to standing, without in any way criticizing its holding in Trafficante that Congress intended for standing under Title VIII to extend so far as Article III of the Constitution allows. 45 L. Ed. 2d at 363-364. Implicit in the defendants' position is the argument that the prudential limitations on standing override Congressional intent (in passing Title VIII). Warth lends no support to this conclusion.

 Moreover, Warth might be distinguished from the instant case on its facts. Throughout Warth, the Court stressed the attenuated nature of the cause and effect relationship that was said to connect the defendant's alleged unlawful practices to the plaintiffs' interests. It is particularly important that the association members who lived in Penfield were not alleging damage to their existing contractual or associational relationships, but that they were harmed by being denied the opportunity to form new relationships. 45 L. Ed. 2d at 364 n. 22.

 In the instant case, subclass I plaintiffs allegedly have existing social relationships with persons in the other subclasses, and these relationships have been and are being damaged by defendants' allegedly unlawful conduct. If it were necessary for us to decide the question, we would be inclined to find that these allegations satisfied not only the constitutional limitations on standing, but also the prudential ones. But this much is clear, the allegation of damage to existing relationships satisfies the Article III requirement of individualized injury, and Trafficante eliminates any basis for challenging the standing of these plaintiffs on prudential grounds.

 NUMEROSITY AND TYPICALITY

 Because the defendants' objections to certification on the grounds of numerosity and typicality raised disputed questions of fact, the court held an evidentiary hearing. Defendants produced no testimony; they introduced two documents into evidence. Plaintiffs offered several witnesses, but only one (Alan Lerner, Esquire) was permitted to testify, *fn5" because plaintiffs had not given notice to defendants of the identity of their witnesses, even though this information had been requested in interrogatories.

 Mr. Lerner's testimony may be summarized as follows. He is an attorney who lives in the Washington Square West Project Area. He and his wife moved from the Germantown section of Philadelphia into the project area in April, 1968, and they had a child afterwards. He was a renter until Fall, 1975, when he purchased a house in the project area. He now lives there with his family. Lerner was primarily interested in the project area because he wanted to live and raise his child in a racially integrated area. Other factors which influenced his choice were the ...


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