United States District Court, M.D. Pennsylvania
June 7, 2005.
KAREN CORBY, et al., Plaintiffs,
SCRANTON HOUSING AUTHORITY and its Executive Director, DANIEL E. BAKER, in his official capacity, Defendants.
The opinion of the court was delivered by: A. RICHARD CAPUTO, District Judge
Presently before the Court is Plaintiffs' Motion for Temporary
Restraining Order and Preliminary Injunction. (Doc. 2.) I will
grant the motion because I find that there is a likelihood of
success on the merits, there is a risk of irreparable harm to the
Plaintiffs if the injunction were not issued, there is no risk of
irreparable harm to the Defendants if I issue the injunction, and
the public interest is served by issuance of the injunction. The
Court has jurisdiction pursuant to 28 U.S.C. § 1331.
The facts of this case are undisputed. The Scranton Housing
Authority (hereinafter Housing Authority) owns and operates low
income housing for residents of Scranton, Pennsylvania, including
the Washington Plaza Apartments (hereinafter Washington Plaza).
The Housing Authority receives funds from the United States
Department of Housing and Urban Development (hereinafter HUD).
For several years, the Housing Authority has planned to renovate
and modernize Washington Plaza. They sought out and received
funds from HUD to perform the modernization. The Housing
Authority included the modernization in their five year plan. The
plan called for all residents to vacate Washington Plaza, thus permitting all
buildings to be renovated simultaneously. Residents could choose
to moved to other Housing Authority developments, Section Eight
housing, or private residencies. The Housing Authority offered to
compensate residents for the relocation. The plan further called
for new residents to move into the units after they were
reopened. On or about October 6, 2004, the Housing Authority sent
residents a letter informing them that they had ninety days to
begin relocation. The same letter informed residents that
information on relocation options and available housing could be
received from a person on site at Washington Plaza. Residents had
already begun moving out by the time the action was filed.
On November 19, 2004, Plaintiffs filed an Emergency Complaint
against the Scranton Housing Authority and its Executive
Director, David Baker, in his official capacity. (Doc. 1.) The
complaint alleged that the renovation plan violated the Uniform
Relocation Assistance Act, 42 U.S.C. § 4601, et seq., as well
as the federal regulations governing HUD funded projects,
24 C.F.R. § 968.105, et seq., and the Due Process clause of the
Fourteenth Amendment. On November 19, 2004, I held a hearing on
the Motion for Temporary Restraining Order and Preliminary
Injunction. After hearing testimony from both sides, I
conditionally certified the class and issued a temporary
restraining order enjoining the Housing Authority from moving
residents out of Washington Plaza. (Doc. 6.) I scheduled a
hearing on the preliminary injunction for December 1, 2004,
(id.) but it was canceled because the parties informed the
Court that a settlement was forthcoming (Docs. 10 & 11). After
several months of negotiations, the parties informed the Court
that settlement was not possible. (Doc. 22.) I held a hearing on
the preliminary injunction on April 18, 2005. Prior to the
hearing, the parties submitted legal memoranda. (Docs. 30 & 32.) The motion is now ripe for
There are two issues presently before the Court: whether I
should certify the class for purposes of this action, and whether
I should grant a preliminary injunction. I will address each of
these in turn.
A. Class Certification
At the November 19, 2004 hearing, I conditionally certified the
class. Now, I will revisit the issue to determine whether the
class should be certified for the purposes of this litigation.
Class relief is appropriate when the "issues involved are common
to the class as a whole" and when they "turn on questions of law
applicable in the same manner to each member of the class."
Califano v. Yamasaki, 442 U.S. 682, 701 (1979). Rule 23 of the
Federal Rules of Civil Procedure sets forth the requirements for
class certification. To be certified, a putative class must first
satisfy the four threshold requirements of Rule 23(a): (1)
numerosity; (2) commonality; (3) typicality; and (4) adequacy of
representation. See Amchem Products, Inc. v. Windsor,
521 U.S. 591, 613 (1997); FED. R. CIV. P. 23(a). In addition, a plaintiff
seeking class certification must show the action is maintainable
under Rule 23(b) (1), (2), or (3). Id. at 614.
For purposes of class certification, the Court does not
consider the merits of the plaintiff's claim. Eisen v. Carlisle
& Jacquelin, 417 U.S. 156, 178 (1974). Rule 23 is given liberal
rather than restrictive construction. See In re A.H. Robins
Co., 880 F.2d 709 (4th Cir. 1989). The "interests of justice
require that in a doubtful case . . . any error, if there is to
be one, should be committed in favor of allowing a class action."
In re Flat Glass Antitrust Litig., 191 F.R.D. 472, 476 (W.D. Pa. 1999)
(quoting Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir.
1985)). The ultimate burden, however, is on the plaintiff to
demonstrate that a class should be certified. See Davis v.
Romney, 490 F.2d 1360, 1366 (3d Cir. 1974).
A class action may be maintained only if "the class is so
numerous that joinder of all members is impracticable." Rule
23(a)(1). "The question of what constitutes [numerosity] . . .
depends on the particular facts of each case and no arbitrary
rules regarding the size of classes have been established by the
courts." 7A WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE
§ 1762 (1986). In the present case, Washington Plaza contains
sixty units. Of these units, fifty to fifty-five families lived
in the units when the modernization planning began. Thus, I find
that the potential plaintiffs are numerous enough.
The commonality requirement states that there must be
"questions of law or fact common to the class." Rule 23(a)(2).
This requirement does not mean that every question must be common
to the entire class. See Weiss v. York Hosp., 745 F.2d 786, 809
(3d Cir. 1984); Edmondson v. Simon, 86 F.R.D. 375, 380 (N.D.
Ill. 1980). In the present case, the conduct in question is the
manner in which the Scranton Housing Authority planned and
intends to execute the modernization of Washington Plaza. Thus,
the legal issues as they relate to the individual plaintiffs are
"Typicality entails an inquiry into whether the named
plaintiffs' individual circumstances are markedly different or the legal theory upon
which the claims are based differs from that upon which the
claims of other class members will perforce be based." Reilly v.
Gould, Inc., 965 F. Supp. 588, 598 (M.D. Pa. 1997) (quoting
Hassine v. Jeffes, 846 F.2d 169, 177 (3d Cir. 1988)). Although
typicality measures the sufficiency of the named plaintiffs, it
does not require that "all putative class members share identical
claims." Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994). Rather,
the typicality requirement is intended "to screen out class
actions involving legal or factual positions of the class
representative which are markedly different from those of other
class members." Reilly, 965 F. Supp. at 600 (quoting Liberty
Lincoln Mercury v. Ford Marketing, 149 F.R.D. 65, 77 (D.N.J.
1993)). In the present case, the named Plaintiffs represent a
large cross-section of the residents of the complex. They are
mothers rearing children, people caring for elderly parents,
people suffering from ongoing medical conditions which require
frequent hospital visits, people who work, and people who rely
upon public transportation. Thus, I find the typicality
requirement is met.
Last is the question of adequacy of representation. This
requirement actually encompasses two factors. First, "the
interests of the named plaintiffs must be sufficiently aligned
with those of the absentees." Georgine v. Amchem Prods.,
83 F.3d 610, 630 (3d Cir. 1996). I find that this requirement has
been met. Plaintiffs are seeking to enforce their rights of
relocation assistance and participation provided under the
applicable statutes and regulations. The second component of Rule
23(a)(4) is that "class counsel must be qualified and must serve
the interests of the entire class." Id. at 630. After observing
Plaintiffs' counsel in two hearings and in camera meetings, and
after reviewing the filings before the Court, I am satisfied that Plaintiffs'
counsel is capable of providing adequate legal representation and
will serve the interests of the entire class.
Thus, I find that the putative class meets all of the
requirements for class certification. I will certify the class of
residents of Washington Plaza who resided there since the Housing
Authority's initiation of negotiations with HUD for modernization
B. Preliminary Injunction
"The test for preliminary relief is a familiar one. A party
seeking a preliminary injunction must show: (1) a likelihood of
success on the merits; (2) that it will suffer irreparable harm
if the injunction is denied; (3) that granting preliminary relief
will not result in even greater harm to the nonmoving party; and
(4) that the public interest favors such relief." KOS Pharms.,
Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir. 2004).
In the present case, the success on the likelihood on the
merits is clear. Defendants concede that they failed to provide
residents with participation required under the HUD regulations.
In particular, Plaintiffs presented evidence that Defendants
failed to give residents adequate notice of the planned
renovations during the planning stages, failed to involve the
residents and did not include them in the creation of goals,
needs, strategies, and priorities for the project, and failed to
have resident participation in the decision-making process to
determine that relocation was necessary. In addition, Plaintiffs
presented evidence that Defendants violated the Uniform
Relocation Assistance Act. Specifically, Plaintiffs presented
evidence that Defendants failed to provide comparable replacement
housing as part of the relocation and failed to provide the full
range of options for compensation for the relocation. Similarly, the likelihood of harm to the Plaintiffs is clear.
At the time the case was filed, Defendants were in the process of
moving residents out of Washington Plaza. Once residents leave
Washington Plaza, they lose certain rights to contest Defendants'
actions. In addition, Defendants' failure to have Plaintiffs
meaningfully participate in the planning is a harm that cannot be
undone once the lack of participation occurs. Thus, an injunction
requiring participation will prevent future harm.
Defendants contend that there is no longer a risk of
irreparable harm because they have stopped the renovation plans.
At the hearing, Defendants explained to the Court that they
intend to reinvestigate the options they have for renovations and
then permit the residents to comment on the new proposed plan.
While I do not doubt Defendants' intention to engage the
residents, I do not believe that the Defendants' representations
to the Court eliminate all possible injuries. In most recent
hearing, Defendants talked about conducting studies and then
notifying residents of the decisions. However, the duty to have
resident participation begins from the point that a housing
authority receives HUD money. 24 C.F.R. § 968.315. It is
unchallenged that Defendants have received HUD money for
modernization. Thus, no actions can be taken at this point,
including no decision-making or planning, without meaningful
resident participation. Therefore, it is clear to the Court that
even now Defendants' current plan will continue to cause harm to
Furthermore, even if Defendants' stated intentions were
compliant with the applicable statutes and regulations, the
unilateral actions of a Defendant cannot moot a case easily. The
burden is upon Defendants to show not only that they have ceased
activities, but that they will not reinitiate the illegal
activities in the future. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000).
I find in the current situation that Defendants have not met
their burden. Thus, the dispute is not moot.
As for the third prong of the test for a preliminary
injunction, potential harm to Defendants, I find that Defendants
would suffer no irreparable harm from the issuance of an
injunction. Defendants have openly admitted that they have
voluntarily postponed the renovation project. Thus, an injunction
requiring that action will cause no harm. Furthermore, Defendants
have certain legal obligations to the Plaintiffs under the
Uniform Relocation Assistance Act and the federal regulations. An
injunction requiring Defendants to follow those laws and
regulations presents no additional burden upon Defendants.
The last prong of the test for a preliminary injunction is
whether the public interest is served. It is the Court's opinion
that the public interest is always served when parties are
required to comply with the laws. In addition, there is a strong
public interest is providing protection against relocation from
one's home, particularly when the affected population is composed
of low-income individuals who rely upon government services to
provide affordable, safe housing.
I will certify the class because they demonstrate the necessary
numerosity, typicality, commonality, and adequacy of
representation. I find that there is a likelihood of success on
the merits, there is a risk of irreparable harm to the Plaintiffs
if the injunction were not issued, there is no risk of
irreparable harm to the Defendants if I issue the injunction, and
the public interest is served by issuance of the injunction.
Therefore, I will grant Plaintiffs' motion for Preliminary
Injunction. An appropriate Order follows. ORDER
NOW, this 7th day of June, 2005, IT IS HEREBY ORDERED that
Plaintiffs' Motion for Temporary Restraining Order and
Preliminary Injunction (Doc. 2) is GRANTED:
(1) I hereby CERTIFY the class of plaintiffs
comprised of the individuals who resided at the
Washington Plaza Apartments since the Scranton
Housing Authority began negotiations with the United
States Department of Housing and Urban Development
for modernization funding. Any persons withdrawn from
the class up to this point shall remain withdrawn
from the class.
(2) Defendants are hereby ENJOINED from relocating
or displacing any residents of Washington Plaza
Apartments until such time as they comply with the
Uniform Relocation Assistance Act and the regulations
governing funding from the United States Department
of Housing and Urban Development for modernization of
(3) Defendants shall notify and provide Class members
the right to reside at Washington Plaza Apartments after the completion of
(4) Defendants shall take all steps feasible to
minimize the temporary displacement of Class members
from Washington Plaza Apartments during the
(5) Defendants shall notify and provide Class members
the right to participate in a process which ensures
that Class members are involved in a meaningful way
in all phases of modernization planning and
implementation, including decisions regarding the
feasibility of conducting the renovations with onsite
relocation only or with partial onsite relocation, in
order to recognize the hardships associated with
displacement and relocation and develop solutions
thereto. This resident participation process shall
meet the standards and procedures set forth at
42 U.S.C. § 4625(a), 49 CFR § 24.205(a) and
24 CFR Part 968 which shall the include the following:
a. Defendants shall provide Plaintiff Class counsel
with all information relevant to any proposed
renovation and relocation. If any information is not
provided to Plaintiff Class counsel, such information
may not be relied upon by the Defendants to determine
the feasibility of conducting renovations with onsite
relocation only or with partial onsite relocation;
b. Class members may utilize a consultant to evaluate
the feasibility of conducting renovations with onsite
relocation only or with partial onsite relocation.
Defendants shall provide for the reasonable cost of such technical assistance as an eligible
management improvement cost from the Capital Grant
awarded to the Defendants;
c. Defendants shall carry out the resident
participation process by conducting meetings with
Class members; and,
d. Defendants shall arrange for a record of the
proceedings to be established.
(6) Defendants shall notify and provide Class members
the full range of the moving options, relocation
payments and advisory services to which they are
entitled by law.
(7) Defendants shall notify and provide Class members
the right to participate in a hearing consistent with
due process to protect against the erroneous
deprivation of their vested property interest to
continued occupancy at Washington Plaza.
(8) Defendants shall notify and provide Class members
who have already moved from Washington Plaza
Apartments of the option to immediately return to the
property, moving expenses to be paid by the
(9) The Temporary Restraining Order issued November
19, 2004 and the amendment of December 16, 2004 are
hereby vacated and replaced by this Order. In the
cases of Daveen Coello and Mildred Reyes, members of
the Plaintiff Class who had already relocated prior
to the Order of November 19, 2004, IT IS HEREBY
ORDERED that the Order of November 19, 2004 and this
Order shall not prevent the finalization of these two
moves by the Defendants, provided, however, that
these two class members shall not be prejudiced as a result of their moving as to any
rights, protections or benefits should the Plaintiffs
prevail in this litigation.
The Court shall retain jurisdiction as necessary and
appropriate to enforce and implement this Order.