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Florence Wallace, et al v. Robert J. Powell

May 14, 2013

FLORENCE WALLACE, ET AL., PLAINTIFFS,
v.
ROBERT J. POWELL, ET AL.,
DEFENDANTS.
WILLIAM CONWAY, ET AL., PLAINTIFFS,
v.
MICHAEL T. CONAHAN, ET AL.,
DEFENDANTS.
H.T., ET AL., PLAINTIFFS,
v.
MARK A. CIAVARELLA, JR., ET AL., DEFENDANTS.
SAMANTHA HUMANIK, PLAINTIFF,
v.
MARK A. CIAVARELLA, JR., ET AL., DEFENDANTS.
RAUL CLARK, ET AL., PLAINTIFFS,
v.
MICHAEL T. CONAHAN, ET AL., DEFENDANTS.
WAYNE DAWN, ET AL., PLAINTIFFS,
v.
MARK A. CIAVARELLA, JR., ET AL., DEFENDANTS.
ANGELA RIMMER BELANGER, ET AL., PLAINTIFFS,
v.
MARK A. CIAVARELLA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: (judge Caputo)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MEMORANDUM

Presently before the Court is the Motion for Class Certification as to All Issues of Defendants' Liability to Plaintiffs (Doc. 1319) filed by Plaintiffs in H.T. v. Ciavarella, No. 09-0357, and Conway v. Conahan, No. 09-0291 (collectively, "Plaintiffs"). Plaintiffs seek certification pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(3), and 23(c)(4) of Classes and Subclasses as to Defendants' liability on Plaintiffs' 42 U.S.C. § 1983, Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1962(c) and 1962(d), and wrongful imprisonment claims. Defendants PA Child Care, LLC, Western PA Child Care, LLC, Mid-Atlantic Youth Services Corp., and Mark Ciavarella oppose Plaintiffs' request for class certification. Particularly, moving Defendants assert that certification of the proposed Classes is improper because Plaintiffs are unable to satisfy the threshold requirements for certification under Rule 23(a) or the predominance and superiority requirements of Rule 23(b)(3). Defendants further contend that too many individualized issues exist as to each class member to permit certification of the liability only Classes under Rule 23(c)(4). Lastly, Provider Defendants maintain that the Supreme Court's recent decision in Comcast Corp. v. Behrend, - - - U.S. - - -, 133 S. Ct. 1426 (2013), prohibits certification of liability only classes. For the reasons that follow, Plaintiffs' motion will be granted and the proposed Classes and Subclasses will be certified.

I. Background*fn1

A. Factual Background

This civil action arises out of the alleged conspiracy related to the construction of two juvenile detention facilities, and subsequent detainment of juveniles in these facilities, orchestrated by two former Luzerne County Court of Common Pleas judges, Michael Conahan ("Conahan") and Mark Ciavarella ("Ciavarella"). The juvenile detention facilities, PA Child Care ("PACC") and Western PA Child Care ("WPACC"), were both constructed by Mericle Construction, Inc. Plaintiffs in this action, juveniles or the parents of juveniles who appeared before Ciavarella, seek redress from the former judges, as well as the individuals and business entities involved in the construction and operation of these facilities, for the alleged unlawful conspiracy and resulting deprivations of Juvenile Plaintiffs' rights.

As set forth in the Master Complaint for Class Actions, Plaintiffs assert claims for violations of 42 U.S.C. § 1983 and conspiracy to violate § 1983; violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1962(c) and 1962(d) ("RICO"); and state-law false imprisonment against the following: Ciavarella and Conahan;*fn2 two entities controlled by Ciavarella and Conahan (Pinnacle Group of Jupiter, LLC, and Beverage Marketing of PA, Inc.);*fn3 PACC, WPACC, and Mid-Atlantic Youth Services Corp. ("MAYS") (collectively, "Provider Defendants"); Robert J. Powell; and Vision Holdings, LLC, an entity controlled by Powell that was a member of both PACC and WPACC (collectively, "remaining Defendants" or "Defendants").*fn4 The current claims against the remaining Defendants in the Master Complaint are: (a) Count I- violation of Juvenile Plaintiffs' right to an impartial tribunal pursuant to 42 U.S.C. § 1983, against Ciavarella and Conahan only; (b) Count II-conspiracy to violate Juvenile Plaintiffs' right to an impartial tribunal pursuant to 42 U.S.C. § 1983, against all remaining Defendants; (c) Count III- violation of Juvenile Plaintiffs' right to counsel and/or a knowing, intelligent, and voluntary guilty plea pursuant to 42 U.S.C. § 1983, against Ciavarella only; (d) Count IV- conspiracy to violate Juvenile Plaintiffs' right to counsel and/or a knowing, intelligent, and voluntary guilty plea pursuant to 42 U.S.C. § 1983, against all remaining Defendants; (e) Count V- violation of RICO, 18 U.S.C. § 1962(c), against Ciavarella, Conahan, Powell, Vision Holdings, Beverage Marketing, and Pinnacle Group only; (f) Count VII- conspiracy to violate RICO, 18 U.S.C. § 1962(d), against all remaining Defendants; and (g) Count IX- wrongful imprisonment against Powell and Provider Defendants only. (Doc. 136.)*fn5

B. Class Certification Motion

On February 1, 2013, Plaintiffs filed a motion for class certification. (Doc. 1319.) Plaintiffs seek class certification of all issues as to Defendants' liability pursuant to Federal Rules of Civil Procedure 23(b)(3) and 23(c)(4). Plaintiffs propose the following Classes and Subclasses for certification:

Class A

Violations of Right to Impartial Tribunal All children who were adjudicated delinquent or referred to placement by Ciavarella between 2003 and May 2008, whose adjudications were vacated, expunged, and dismissed with prejudice by orders of the Pennsylvania Supreme Court dated October 29, 2009 or March 29, 2010. See in re Expungement of Juvenile Records and Vacatur of Luzerne County Juvenile Court Consent Decrees or Adjudications from 2003-2008, No. 81-MM-2008 (Pa.)

Subclass A.1

Violations of Right to Counsel and/or Colloquy All children in Class A who were adjudicated delinquent or referred to placement by Ciavarella without counsel and/or without colloquies on the record that informed them of their rights and the consequences of waiving those rights, before either waiving counsel and/or pleading guilty, during the time between 2003 and May 2008.

Subclass A.2

False Imprisonment All children in Class A who were referred to placement at PA Child Care and/or Western PA Child Care by Ciavarella between 2003 and May 2008.

Class B

Violations of RICO Act All children who were adjudicated delinquent or referred to placement by Ciavarella who paid fees, costs, fines, restitution, or any other monetary charges associated with their adjudications and/or placements during the time period between 2003 and May 2008, as well as all children's parents or guardians who paid fees, costs, fines, restitution, or any other monetary charges associated with their children's adjudications and/or placements during the same time period. (Doc. 1320, 12-14.)

Class A includes approximately 2,421 juveniles, and is represented by Paige Cicardo, Elizabeth Habel, Angelia Karsko, H.T., Jessica Van Reeth, Dezare Dunbar, and Alexandra Fahey. (Id. at 12.) Subclass A.1 includes at least 1,855 juveniles. Subclass A.1 is represented by Paige Cicardo, H.T., and Jessica Van Reeth. (Id. at 13.) Subclass A.2, represented by Paige Cicardo, Elizabeth Habel, and Angelia Karsko, contains approximately 1,442 juveniles. (Id. at 14.) Class B, estimated by Plaintiffs to be comprised of over 2,400 juveniles and parents, is represented by Elizabeth Habel and Jack Van Reeth. (Id. at 14.)

On March 1, 2013, Provider Defendants filed a brief in opposition to Plaintiffs' motion for class certification.*fn6 First, Provider Defendants dispute Plaintiffs' calculation of the size of the Classes, and assert that there "are no more than 1,787 actual class members, and as many as 535 have opted out." (Doc. 1345, 6.)*fn7 Second, Provider Defendants contend that Rule 23(c)(4) does not allow for certification of liability only classes in this case, which they claim is also supported by Comcast Corp. v. Behrend, - -- U.S. - - -, 133 S. Ct. 1426 (2013). Third, Provider Defendants argue that the Classes and Subclasses cannot be certified because Plaintiffs are unable to satisfy the requirements of Rules 23(a) and 23(b)(3).

On April 30, 2013, oral argument was held on the motion for class certification. The motion is now ripe for disposition.

II. Discussion

A. Legal Standard

Rule 23 of the Federal Rules of Civil Procedure provides for class action certification. Under Rule 23(a), class certification may be appropriate if the following requirements are satisfied:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). Once the requirements of 23(a) are satisfied, the class may be certified if at least one of the three subsections of 23(b) are met. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 309 n.6 (3d Cir. 2008). Here, Plaintiffs seek to certify the Classes and Subclasses pursuant to Rules 23(b)(3) and 23(c)(4).

A court may certify a class action only if it "is satisfied, after a rigorous analysis, that the [requirements of Rule 23] have been satisfied." Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982). In weighing the merits of class certification, a "district court must make whatever factual and legal inquiries are necessary and must consider all relevant evidence and arguments presented by the parties." Hydrogen Peroxide, 552 F.3d at 307. Specifically, a certifying court must find that each element of Rule 23 is met by a preponderance of evidence, and it "must resolve all factual or legal disputes relevant to class certification, even if they overlap with the merits- including disputes touching on elements of the cause of action." Id. at 305. This reflects the notion that Rule 23 is more than a "mere pleading standard," and a plaintiff "seeking class certification must affirmatively demonstrate his compliance with the Rule." Wal--Mart Stores, Inc. v. Dukes, - - - U.S. - - -, 131 S. Ct. 2541, 2551, 180 L. Ed. 2d 374 (2011).

B. Certification Under Rule 23(a)

Plaintiffs as the moving party bear the burden of first showing that the requirements of Rule 23(a) are satisfied, and then demonstrating that the elements of subsection (b)(3) are met. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997); Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 591 (3d Cir. 2012). The "threshold requirements" of Rule 23(a) are referred to as (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Amchem, 521 U.S. at 613, 117 S. Ct. 2231. Each requirement will be evaluated in turn.

1. Numerosity

The first requirement for a class action is that the class is so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). "'No single magic number exists satisfying the numerosity requirement." Logory v. Cnty. of Susquehanna, 277 F.R.D. 135, 140 (M.D. Pa. 2011) (quoting Florence v. Bd. of Chosen Freeholders, No. 05--3619, 2008 WL 800970, at *6 (D. N.J. Mar. 20, 2008)). However, the Third Circuit has opined that while there is technically no minimum class size, "generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met." Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001).

Here, Class A consists of approximately 2,421 juveniles that were adjudicated delinquent or referred to placement by Ciavarella between 2003 and May 2008. (Doc. 1367, Ex. 1.) Subclass A.1 is comprised of the approximately 1,855 juveniles adjudicated delinquent or referred to placement without counsel by Ciavarella during the class period, together with the juveniles who did not have a constitutionally adequate colloquy before pleading guilty. Subclass A.2 includes the approximately 1,442 juveniles placed at PACC and/or WPACC by Ciavarella between 2003 and May 2008. And, Class B is likely in excess of 2,400 Juvenile Plaintiffs and Parent Plaintiffs who made payments in connection with the juvenile adjudications between 2003 and May 2008. These Classes well surpass the lower limits for numerosity, and Rule 23(a)(1) has been met.

2. Commonality

To satisfy Rule 23(a)(2), there must be "questions of law or fact common to the class." Fed. R. Civ. P. 23(a). Commonality requires that plaintiffs demonstrate that their claims "depend upon a common contention," the resolution of which "will resolve an issue that is central to the validity of each one of the claims in one stroke." Dukes, 131 S. Ct. at 2551. "Commonality does not require an identity of claims or facts among class members; instead, [t]he commonality requirement will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class." Johnston v. HBO Film Mgmt., Inc., 265 F.3d 178, 184 (3d Cir. 2001) (internal quotation marks omitted); see also Marcus, 687 F.3d at 597-98 (3d Cir. 2012).

Recently, however, the Supreme Court opined that commonality is not the mere existence of a classwide question, but instead the potential for a "classwide resolution." Dukes, 131 S. Ct. at 2551. "What matters to class certification . . . is not the raising of common 'questions'- even in droves- but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation." Id. (citing Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).

In this case, the allegations raise a number of common issues capable of classwide resolution with respect to the liability of Defendants. For example, as to the constitutional claims, common issues include: whether the non-judicial Defendants willfully participated in joint activity with Ciavarella and Conahan; whether Defendants conspired with the former judges to deprive Juvenile Plaintiffs of their constitutional rights; and whether Powell had final policymaking authority for PACC, WPACC, MAYS, and/or Vision Holdings. The RICO claims implicate common issues such as whether an association-in-fact enterprise was established by Defendants, as well as whether a universal conspiracy existed to violate Plaintiffs' rights and to commit the predicate acts. See Wallace, 2010 WL 3398995, at *13-14. Lastly, as to the wrongful imprisonment claim, a common issue exists as to whether, based on the alleged conspiracy, Defendants knew Ciavarella's detention orders were invalid. See id. at *16. Since these issues can be answered commonly by way of a classwide proceeding, Rule 23(a)(2) is satisfied. See, e.g., Marcus, 687 F.3d at 597.

Provider Defendants, however, insist that commonality does not exist in this case pursuant to the Supreme Court's decision in Dukes. In Dukes, three current or former Wal-Mart employees, representing the 1.5 million members of the certified class, claimed that the company discriminated against them on the basis of their sex. Dukes, 131 S. Ct at 2548. The members of the class "held a multitude of different jobs, at different levels of Wal-Mart's hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed . . . ." Id. at 2557 (citation omitted). The class certified by the district court consisted of "'all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices.'" Id. at 2549 (quoting Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 141-42 (N.D. Cal. 2004)). The district court's certification order was substantially affirmed by a divided en ...


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