Daskalea v. Wash. Humane Soc'y

Full title: SUNDAY DASKALEA, et al., Plaintiffs, v. WASHINGTON HUMANE SOCIETY, et al.…

Court: United States District Court, D. Columbia

Date published: Aug 10, 2011

275 F.R.D. 346 (D.D.C. 2011)

Opinion

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

         Paul H. Zukerberg, Zukerberg Law Center, PLLC, Washington, DC, for Plaintiff.

          Derek Ludwin, Covington & Burling LLP, Washington, DC, for Defendants.

         MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLy, District Judge.

          Plaintiff Willie A. Jackson (" Jackson" ) is the sole named representative of a putative class of self-described pet owners in the District of Columbia who contend that their pets were seized, detained, and damaged by Defendants without due process of law. Over the years, the claims asserted in this action have been successively winnowed down through a series of dispositive motions.^{1 1} Following the resolution of those motions, Jackson filed a [87] Renewed Motion for Class Certification (" Motion for Class Certification" ), which now comes to this Court on Magistrate Judge Alan Kay's [94] Report and Recommendation, in which Magistrate Judge Kay recommends that the Court deny Jackson's Motion for Class Certification, and on Jackson's [95] Objections to Magistrate Judge Kay's Report and Recommendation (" Objections" ). Upon consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court finds that Jackson's Objections are unfounded and concurs with Magistrate Judge Kay's bottom-line conclusion that Jackson has failed to discharge his burden of showing that certification of the class is appropriate. Accordingly, the Court will overrule Jackson's Objections, adopt Magistrate Judge Kay's Report and Recommendation, and deny Jackson's Motion for Class Certification.

1 Some of those motions were resolved by Judge John Garrett Penn, to whom this action was previously assigned; others were resolved by the undersigned upon reassignment.

1 Plaintiffs Sunday Daskalea, Willie Jackson and Francis S. Norris were initially class representatives; however, the Court's June 14, 2010 Order [83] indicates that " Plaintiffs advised the Court that Plaintiffs Sunday Daskalea and Francis S. Norris are unable to serve as class representatives as Dr. Norris is now deceased and Ms. Daskalea has relocated out of the country. Counsel for Plaintiffs indicated that Plaintiffs intend to proceed with Plaintiff Jackson as the sole representative of the putative class." ( [83] at 1.) Accordingly, the only representative of the putative plaintiff class is Willie Jackson and the Renewed Motion for Class Certification [87] is Mr. Jackson's motion.

         I. BACKGROUND

         The Court assumes familiarity with its prior opinions in this action, which set forth in detail the factual and procedural background of this case. See Daskalea v. Wa. Humane Soc., 480 F.Supp.2d 16 (D.D.C.2007) (Penn, J.) (" Daskalea 1 " ); Daskalea v. Wa. Humane Soc., 577 F.Supp.2d 82 (D.D.C.2008) (Kollar-Kotelly, J.) (" Daskalea 2 " ); Daskalea v. Wa. Humane Soc., 577 F.Supp.2d 90 (D.D.C.2008) (Kollar-Kotelly, J.) (" Daskalea 3 " ); Daskalea v. Wa. Humane Soc., 710 F.Supp.2d 32 (D.D.C.2010) (Kollar-Kotelly, J.) (" Daskalea 4 " ). Therefore, the Court will confine its discussion here to setting forth those facts most germane to the pending motion.

          A. The Remaining Plaintiffs

         Originally, there were three named plaintiffs seeking to represent the putative class in this action— Sunday Daskalea (" Daskalea" ), Francis S. Norris, M.D. (" Norris" ), and Jackson. See First Am. Compl., ECF No. [7], at 1. On June 14, 2010, Plaintiffs' counsel advised the Court that Daskalea and Norris are unable to serve as class representatives as Norris is now deceased and Daskalea has relocated out of the country. See Order (June 14, 2011), ECF No. [83], at 1. Since then, Plaintiffs have proceeded with Jackson as the sole representative of the putative class. However, Daskalea has ostensibly maintained her individual claims and remains a member of the putative class. Meanwhile, in part because no formal suggestion of death has been filed with the Court, Norris's individual claims technically remain " live" in this action. See infra Part IV.C.

          B. The Remaining Defendants

         The remaining defendants in this action are the District of Columbia and several current and former officers and employees of the Washington Humane Society (the " Humane Society" ). The individual defendants include: Jody Huckaby, the former Executive Director of the Humane Society, in her individual capacity; Lisa LaFontaine, in her official capacity as the Humane Society's current President and Chief Executive Officer; Adam Parascandola, the former Director of Law Enforcement for the Humane Society, in his individual capacity; Zita Macinanti, in her official capacity as the Humane Society's current Director of Law Enforcement; Sonya Scnoor, individually and in her official capacity as the Humane Society law enforcement officer who allegedly seized and detained Daskalea's dog; Rosemary Vozobule, individually and in her official capacity as the Humane Society law enforcement officer who allegedly refused to return Daskalea's dog; Lindsay Gardewin, individually and in her official capacity as a Humane Society law enforcement officer who allegedly seized and refused to return Jackson's dog; and H.O. Boozer, individually and in her official capacity as the law enforcement officer who allegedly seized and refused to return Norris's dog (collectively, the " Individual Defendants" ). See First Am. Compl. ¶ ¶ 11-16; Order (June 14, 2010) at 1-4.

          Originally, Plaintiffs also brought suit against the Humane Society itself and a series of John Doe Defendants. See First Am. Compl. ¶ ¶ 9, 17. Plaintiffs' claims against the Humane Society were dismissed because the Humane Society is non sui juris. See Daskalea 1 , 480 F.Supp.2d at 22-24. Plaintiffs' claims against the John Doe Defendants were dismissed for want of prosecution. See Min. Order (Sept. 14, 2010).

         In addition, the Court has already concluded that the Individual Defendants are entitled to qualified immunity insofar as they are being sued for constitutional violations in their individual capacities in connection with their enforcement of the statute at issue in this action as written. See Daskalea 3 , 577 F.Supp.2d at 104. The Court has so far declined to hold that the Individual Defendants are entitled to qualified immunity in connection with the actions they are alleged to have taken after seizing Plaintiffs' pets or in connection with Plaintiffs' common law claims for damage to personal property and conversion. See id. at 104-05. Resolution of that question will have to await further development of the factual record.

          C. The Remaining Claims

         Plaintiffs' [7] First Amended Complaint (" Complaint" ) was filed on March 1, 2004, and it remains the operative iteration of the complaint in this action. It includes a total of eight counts— three constitutional claims and five common law tort claims— each of which challenges, in one way or another, Defendants' administration and enforcement of the District of Columbia's Freedom from Cruelty to Animals Protection Act (the " Act" ), D.C. CODE §§ 22-1001-22-1015, in the form that it existed in the time period extending from on or about June 8, 2001, when the District of Columbia's Freedom from Cruelty to Animals Protection Amendment Act of 2000 (" the 2000 Act" ), 2000 D.C. Legis. Serv. 13-303 (West), entered into effect, and on or about December 5, 2008, when the District of Columbia's Animal Protection Act of 2008 (the " 2008 Amendment" ), 2008 D.C. Legis. Serv. 17-281 (West) entered into effect, or March 27, 2009, when its implementing regulations, D.C. MUN. REGS. tit. 24, §§ 1500-1515, were adopted.^{2 2}

2 There is some ambiguity as to whether Plaintiffs' challenge is intended to conclude on December 5, 2008, when the 2008 Amendment entered into effect, or March 27, 2009, when the implementing regulations were adopted. For purposes of resolving the pending motion, the ambiguity is immaterial.

2 The Court held in abeyance Plaintiffs' May 28, 2004 Motion for Class Certification [19] pending resolution of Plaintiffs' Motion for Partial Summary Judgment [42] and the Individual Defendants' Motion for Judgment on the Pleadings [54]. (Sch. and Proc. Order [49] at 5.) On September 9, 2008, the Court denied without prejudice the motion for partial summary judgment (Memorandum Opinion and Order [57/58] ) and denied in part and granted in part the motion for judgment on the pleadings (Memorandum Opinion and Order [59/60] ). The Individual Defendants were found to be entitled to " qualified immunity against Plaintiffs' personal-capacity constitutional claims for damages insofar as those claims relate to the Individual Defendants' alleged enforcement of the District of Columbia Freedom from Cruelty to Animals Protection Act of 2000, D.C. Code § 22-1001 et seq. , as written." (Memorandum Opinion [59] at 22.) Plaintiff's Renewed Motion for Class Certification [87] was filed on October 7, 2010.

         During this time period, the operative provision of the Act read as follows:

(a) Any person found violating the laws in relation to cruelty to animals may be arrested and held without a warrant.... The person making the arrest or the humane officer taking possession of an animal shall have a lien on said animals for the expense of such care and provisions.

(b)

(1) A humane officer of the Washington Humane Society may take possession of any animal to protect it from neglect or cruelty. The person taking possession of the animal or animals, shall use reasonable diligence to give notice thereof to the owner of animals found in the charge or custody of the person arrested, and shall properly care and provide for the animals until the owner shall take charge of the animals; provided that, the owner shall take charge of the animals within 20 days from the date of the notice.

(2) If the owner or custodian of the animal or animals fails to respond after 20 days, the animal or animals shall become the property of the Washington Humane Society and the Washington Humane Society shall have the authority to:

(A) Place the animal or animals up for adoption in a suitable home;

(B) Retain the animal or animals, or

(C) Humanely destroy the animal or animals.

D.C.CODE § 22-1004 (2002).

          Of the eight counts identified in the Complaint, only five, discussed in greater detail below, remain extant in full or in part. Plaintiffs' claims for fraud (Count VI), negligent and intentional infliction of emotional distress (Count VII), and extortion (Count VIII) were dismissed early on in this action for failure to state a claim for relief. See Daskalea 1, 480 F.Supp.2d at 37-39.

          As a result, Plaintiffs' five remaining counts are as follows:

• Plaintiffs' Count I, which Plaintiffs label " violation of due process," arises under Section 1 of the Ku Klux Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983 (" Section 1983" ). Plaintiffs claim that Defendants (a) deprived them of personal and property interests without due process of law, in violation of the Fifth and Fourteenth Amendments to the Constitution ^{3 3} and (b) violated their right to be free from unreasonable searches and seizures, in violation of the Fourth Amendment to the Constitution. See First Am. Compl. ¶ ¶ 71-74.

3 While due process violations are typically analyzed under the Fourteenth Amendment, the District of Columbia— which is not a State— is subject to the Due Process Clause of the Fifth Amendment. See Butera v. District of Columbia, 235 F.3d 637, 645 n. 7 (D.C.Cir.2001). To date, no party has moved for dismissal of Plaintiffs' claims under the Fourteenth Amendment on this basis.

3 Counts VI (fraud), VII (negligent or intentional infliction of emotional distress) and VIII (extortion) of the Amended Complaint were dismissed by the Honorable Judge John Garrett Penn, the previous judge to whom the case was assigned. (March 13, 2007 Memorandum Opinion and Order [28/29].) The Honorable Colleen Kollar-Kotelly (hereinafter referred to as " the Court" ) denied without prejudice Plaintiffs' motion for partial summary judgment with respect to Count II of the Amended Complaint. (September 9, 2008 Memorandum Opinion and Order [57/58] ) and subsequently dismissed Plaintiffs' Count II on grounds that the statute [the Act] " ha[d] in fact been rendered moot" by the passage of D.C. Act 17-493, the " Animal Protection Amendment Act of 2008." (May 2, 2010 Memorandum Opinion [77] at 1-2.)

• Plaintiffs' Count II originally had two components. In the first, Plaintiffs launched a facial challenge to the constitutionality of the Act in the form that it existed prior to the 2008 Amendment. See id. ¶ ¶ 75-77. In the second, Plaintiffs alleged that Defendants had customarily enforced the Act in an unconstitutional fashion— specifically, by failing to provide pet owners with meaningful notice and an opportunity to be heard. See id. ¶ ¶ 75, 78. Of these two components, only the second remains extant. The Court dismissed Plaintiffs Count II insofar as it launched a facial challenge to the constitutionality of the Act on May 2, 2010, concluding that Plaintiffs' facial challenge had been rendered moot by the 2008 Amendment to the Act, which Plaintiffs conceded rectified any facial due process problems.^{4 4} See Daskalea 4 , 710 F.Supp.2d at 44-45. As a result, Count II remains " live" only insofar as it alleges that Defendants customarily enforced the Act in an unconstitutional manner. In this regard, Count II simply tracks Count I. ^{5 5}

4 In his Motion for Class Certification, Jackson erroneously suggests that his facial challenge under Count II remains extant. See Pl.'s Mem. of P. & A. in Supp. of Pl.'s Renewed Mot. for Class Certification (" Pl.'s Certif. Mem." ), ECF No. [87], at 7.

4 WHS is no longer a defendant to this action because " Judge Penn determined that WHS is non sui juris and therefore granted WHS' motion to dismiss Plaintiffs' Amended Complaint against WHS." (09/09/11 Memorandum Opinion [58] at 5-6.) See also Daskalea v. Washington Humane Society, 480 F.Supp.2d 16, 22-24 (D.D.C.2007). Lisa LaFontaine, WHS's current President and CEO, and Zita Macinanti, WHS's current Director of Law Enforcement, have been substituted for Ms. Huckaby and Mr. Parascandola, in their official capacities as officers of WHS. (6/14/10 Order [83].) John Does 1-10 were dismissed by the Court in a 9/14/10 Minute Order.

5 In the course of summarizing the extended procedural history of this action, Magistrate Judge Kay suggests in a footnote that this Court dismissed Plaintiffs' Count II in its entirety. See Report and Recommendation at 2 n. 3. That is not strictly accurate. The Court dismissed Plaintiffs' Count II " insofar as it asserts a facial challenge to the constitutionality of the Act." Daskalea 4 , 710 F.Supp.2d at 45. The Court left the claim intact insofar as it challenges the way in which the Act had been " customarily enforced." First Am. Compl. ¶ 75. However, because this aspect of Plaintiffs' Count II is essentially duplicative of Plaintiffs' remaining claims, which were the focus of Magistrate Judge Kay's Report and Recommendation, this minor inaccuracy had no impact on the actual substance of Magistrate Judge Kay's Report and Recommendation.

5 The Individual Defendants and the District of Columbia each filed their own opposition to Plaintiff's Motion.

• Plaintiffs' Count III is essentially a sub-category of Count I. In Count III, Plaintiffs claim that Defendants, in applying the Act to the named plaintiffs— that is, Daskalea, Norris, and Jackson— " deprived [the named plaintiffs] of property without due process of law, by illegally seizing and detaining their pets, illegally refusing to return the animals to them, failing to provide notice and a meaningful right to be heard, and taking actions which permanently affected their property rights." First Am. Compl. ¶ 80.

• Plaintiffs' Count IV, labeled " destruction of property," alleges that Defendants damaged and destroyed Plaintiffs' pets by sterilizing them, forcing them to undergo surgery, and permanently preventing them from breeding. See id. ¶ 81. Previously, the Court construed this count as a claim for " damage to personal property." Daskalea 1 , 480 F.Supp.2d at 36.

• Plaintiffs' Count V alleges Defendants committed conversion by seizing Plaintiffs' pets. See First Am. Compl. ¶ 84.

          Jackson, the sole remaining named representative of the putative class, had his dog seized by the Humane Society. He alleges that on October 11, 2003, members of the Humane Society " entered [his] family['s] home and illegally seized [his dog]," a female Rottweiler that had " developed terminal cancer," through a series of " threats and false statements." Id. ¶ ¶ 59, 61. " [D]espite numerous demands" to free the animal, the Humane Society " refused to return [his dog]" until Jackson would " consent to, and pay for ... major cancer surgery," even though his veterinarian advised against such treatment. Id. ¶ ¶ 61, 64. In an attempt to appease the Humane Society, Jackson provided his pet's veterinary records " for the prior four years, [which] document[ed the animal's] exemplary medical treatment." Id. ¶ 61. The Humane Society was not satisfied, however, and demanded that the animal undergo " radical treatment." Id. ¶ 64. " [U]nder compulsion from the Humane Society, [ ] Jackson was compelled to agree to the cancer surgery." Id. ¶ 65. The treatment was unsuccessful and the animal died. Id. ¶ 64. At no time during this process was Jackson given an opportunity to contest the seizure and terms of the release of his pet, including the reasonableness of the cancer treatment. Id. ¶ 70.

         In addition to recounting the alleged events leading to the seizure of Jackson's pet, the Complaint includes allegations concerning Daskalea and Norris. Although Daskalea and Norris no longer seek to serve as representatives of the putative class, see supra Part I.A, the allegations in the Complaint specifically pertaining to them are useful in fleshing out the composition of the proposed class.

         On May 17, 2002, Daskalea left her dog unattended in her vehicle while " she went up to her apartment to get some things." First Am. Compl. ¶ ¶ 31, 33. The dog, " a full-bred, pedigreed ‘ Dogo Argentino,’ " which she had purchased " for breeding, as well as companionship" purposes, " had just been walked, watered and fed, and was in absolutely no danger." Id. ¶ 31. It is not clear from the Complaint how long the animal was left unattended; however, while Daskalea was in her apartment, Defendant Sonya Scnoor, a Humane Society law enforcement officer, seized the dog from the car. Id. ¶ 36. Daskalea's " [r]epeated efforts ... to retrieve [her dog] ... were unsuccessful," and the Humane Society " refused to return" the animal. Id. ¶ 39. While in the custody of the Humane Society, the dog was " forcibly sterilized." Id. ¶ 41. Although the animal was eventually returned, it was " permanently prevented from breeding" and its " personality ha[d] changed." Id. ¶ ¶ 43, 45.

         On July 19, 2002, Norris left her dog, a Schipperke lap dog, unattended in her car while she " went to [a] nearby sports club." Id. ¶ 46. Norris " parked her car under a large shade tree ... cracked all four car windows, [and] left food and water for [the animal]." Id. Upon returning to her car, " Norris found that officer H.O. Boozer ... of the Humane Society had entered her car and seized [her dog] without her permission, knowledge or consent." Id. ¶ 48. Norris maintains that her dog " was perfectly fine and in absolutely no danger" at the time of the seizure. Id. ¶ 49. Her " [e]fforts ... to retrieve [her dog] ... were [initially] unsuccessful." Id. ¶ 54. The Humane Society eventually " agreed to return [the dog], but only if [ ] Norris agreed to pay ... [for] unnecessary medical treatment." Id. ¶ 55. Norris " reluctantly agreed" to the treatment, realizing it was the " only way" the Humane Society would return her pet. Id. The dog was " bedraggled" and " in terrible condition" when released. Id. ¶ 56.

          D. Pre-Certification Discovery

          On June 14, 2010, the Court granted Plaintiffs leave to conduct limited pre-certification discovery. See Order (June 14, 2010) at 3-4. Specifically, the Court concluded that Plaintiffs were entitled to receive three categories of documents in connection with each impoundment that occurred during the putative class period: (1) the official notice of violation; (2) the police report; and (3) the computerized docket sheet. See id. As part of the discovery allowed, counsel for the Individual Defendants produced extensive computer records identifying those individuals whose pets were seized during the putative class period and who met the definition of the proposed class, and also made individual paper files available to Plaintiffs for inspection. See Ltr. From H. Hamilton, Esq. to P. Zukerberg, Esq. (Aug. 20, 2010), ECF No. [91-1], at 1. According to the record, it appears that Jackson's counsel received and reviewed at least twenty-three boxes of records, and attempted to conduct an informal survey of the impoundments documented by those records. See Ltr. From P. Zukerberg, Esq. to H. Hamilton, Esq. (Aug. 30, 2010), ECF No. [91-1], at 1-2.

          E. Jackson's Motion for Class Certification

         On October 7, 2010, Jackson filed the pending Motion for Class Certification. ^{6 6} See Pl.'s Certif. Mem. The District of Columbia and the Individual Defendants filed separate oppositions. See District of Columbia's Mem. of P. & A. in Opp'n to Pl.'s Mot. for Class Certification, ECF No. [90]; Individual Defs.' Opp'n to Pl.'s Mot. for Class Certification (" Indiv. Defs.' Certif. Opp'n" ), ECF No. [89]. Jackson filed a consolidated reply. See Pl.'s Reply Mem. in Supp. of Class Certification (" Pl.'s Certif. Reply" ), ECF No. [91].

6 The Court held a previous [19] Motion for Class Certification in abeyance pending resolution of various dispositive motions. See Scheduling and Procedures Order, ECF No. [49], at 4-5. The pending Motion for Class Certification supersedes that motion.

6 Plaintiff asserts that the " specificity found in [his] Amended Complaint" satisfies Rule 23(a)(2). (Reply at 3.) Plaintiff's Amended Complaint [7], ¶ 71, sets forth a list of deprivations of personal and property rights pursuant to 42 U.S.C. § 1983, including illegal seizure and detention of pets, forcible sterilization, extortion of unjustified fees and expenses from owners, compelling unwanted medical treatment, and other violations.

         In his Motion for Class Certification, Jackson seeks to serve as the sole representative for a class comprised of " [a]ll persons whose pets were seized in the District of Columbia by the defendants" during the period that the 2000 Act " was the operative law" — that is, until the date the 2008 Amendment and its implementing regulations entered into effect. Pl.'s Certif. Mem. at 4. Based on records produced during the course of pre-certification discovery, Jackson estimates that there are between 3,000 and 6,000 members in the putative class. See id. at 11-12.

         Jackson seeks certification of the putative class under Rule 23(b)(1) or (b)(3) of the Federal Rules of Civil Procedure, though he indicates that his preference is for certification under subdivision (b)(1) so that he might " avoid[ ] the often burdensome and costly notice requirements applicable to (b)(3) classes." Id. at 3.

          F. Magistrate Judge Kay's Report and Recommendation

         This Court referred Jackson's Motion for Class Certification to Magistrate Judge Kay for purposes of preparing a report and recommendation under Local Civil Rule 72.3(a). See Order Referring Case to Magistrate Judge (Dec. 6, 2010), ECF No. [92]. On February 15, 2011, Magistrate Judge Kay held a hearing and heard argument concerning Jackson's Motion for Class Certification. See Min. Entry (Feb. 15, 2011).

          On May 26, 2011, Magistrate Judge Kay issued his written Report and Recommendation. Therein, Magistrate Judge Kay addresses whether Jackson has (a) satisfied each of the four prerequisites for class certification under Rule 23(a) and (b) established whether certification is appropriate under one of the subdivisions of Rule 23(b). See infra Part II.B (describing the legal standard for class certification). With respect to the prerequisites for class certification, Magistrate Judge Kay concluded that Jackson had carried his burden with respect to three of the four prerequisites— namely, numerosity, commonality, and adequacy of representation. See Report and Recommendation at 6-12, 15-16. More specifically, he found that Jackson's estimate that the purported class consists of between 3,000 and 6,000 members was supported by documentary evidence showing the number of pets seized during the class period and satisfied the legal standard for numerosity, see id. at 6-7; that the question of whether Plaintiffs can demonstrate that the Act, as applied, resulted in a violation of their constitutional right to due process provided a sufficient basis for the satisfaction of commonality, see id. at 7-12; and that putative class counsel's qualifications and experience and his past record of representation in this action were sufficient to satisfy the adequacy of representation requirement, see id. at 15-16. However, Magistrate Judge Kay determined that Jackson failed to show that he satisfies the typicality requirement of Rule 23(a). See id. at 12-15. In addition, Magistrate Judge Kay found that Jackson had failed to show that certification is appropriate under any of the relied-upon subdivisions of Rule 23(b)— namely, subdivisions (b)(1) and (b)(3). See id. at 16-25.

          G. Jackson's Objections to the Report and Recommendation

         On June 13, 2011, Jackson filed his Objections to Magistrate Judge Kay's Report and Recommendation. On June 30, 2011, the District of Columbia and the Individual Defendants filed separate responses to Jackson's Objections. See District of Columbia's Resp. to Pl.'s Objections, ECF No. [97]; Individual Defs.' Opp'n to Pl.'s Objections, ECF No. [96]. Jackson did not file a timely reply.

         Unsurprisingly, Jackson's Objections are limited to those parts of Magistrate Judge Kay's Report and Recommendation adverse to him. Specifically, Jackson contends that Magistrate Judge Kay erred by concluding that Jackson failed to establish that he satisfies the typicality requirement of Rule 23(a) and that certification is appropriate under Rule 23(b)(1) or (b)(3). See Pl.'s Objections at 2. In this regard, Jackson's arguments by and large rehash the arguments he made before Magistrate Judge Kay in the course of briefing the Motion for Class Certification.

         II. LEGAL STANDARDS

          A. Review of a Magistrate Judge's Report and Recommendation

         This Court referred Jackson's Motion for Class Certification to Magistrate Judge Kay for purposes of preparing a report and recommendation under Local Civil Rule 72.3(a). See Order Referring Case to Magistrate Judge (Dec. 6, 2010). " Any party may file ... written objections to the magistrate judge's proposed findings and recommendations," and must " specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for the objection." LCvR 72.3(b). Upon the filing of objections, the " district judge [must] make a de novo determination of those portions of a magistrate judge's findings and recommendations to which objection is made," and may do so " based solely on the record developed before the magistrate judge, or may conduct a new hearing, receive further evidence, and recall witnesses." LCvR 72.3(c). The " district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the magistrate judge, or may recommit the matter to the magistrate judge with instructions." Id.

          B. Motions for Class Certification

          Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure. There are two components to the certification inquiry under Rule 23. First, each of the four elements of Rule 23(a) must be met. Richards v. Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C.Cir.2006). That is, the proponent of certification must establish: " (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). These four requirements are commonly referred to in shorthand as numerosity, commonality, typicality, and adequacy of representation, respectively. Second, certification of the proposed class must be appropriate under at least one of the three categories enumerated in Rule 23(b). In this case, Jackson relies upon subdivisions (b)(1) and (b)(3), which requirements are discussed in greater detail elsewhere. See infra Part IV.B.

          The proponent of the class bears the burden of proof. Harris v. Koenig, 271 F.R.D. 383, 388 (D.D.C.2010) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). The Supreme Court has stated that " Rule 23 does not set forth a mere pleading standard" ; rather, " [a] party seeking class certification must affirmatively demonstrate [its] compliance with the Rule— that is, [it] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (emphasis in original).^{7 7} At times, determining whether the proponent has met its burden will require the district court to " probe behind the pleadings" and address matters that are enmeshed with the factual and legal issues relevant to the merits of the plaintiffs' causes of action. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). At the same time, the district court should " refrain from making determinations on the merits that are unnecessary to resolving the class certification question." Lightfoot v. District of Columbia, 273 F.R.D. 314, 323 n. 6 (D.D.C.2011). Ultimately, the district court's determination must rest on a " rigorous analysis" to ensure that all the requirements are satisfied, and " [a]ctual, not presumed, conformance" with Rule 23 is indispensable. Falcon, 457 U.S. at 160-61, 102 S.Ct. 2364.

7 The Court notes that when Magistrate Judge Kay issued his Report and Recommendation on May 26, 2011, he did not have the benefit of the Supreme Court's decision in Dukes, which was issued on June 20, 2011.

7 The Lightfoot court noted that because the case had been pending for a number of years, it had the " benefit of a significantly more developed evidentiary record, as well as a more concrete sense of the nature of the claims and defenses remaining in this action." 273 F.R.D. at 323.

          Because district courts are " uniquely well situated to make class certification decisions," McCarthy v. Kleindienst, 741 F.2d 1406, 1410 (D.C.Cir.1984) (citing Burns v. U.S. R.R. Ret. Bd., 701 F.2d 189, 191 (D.C.Cir.1983)), they exercise " broad discretion in deciding whether to permit a case to proceed as a class action," Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C.Cir.1994) (citing Bermudez v. U.S. Dep't of Agric., 490 F.2d 718, 725 (D.C.Cir.), cert. denied, 414 U.S. 1104, 94 S.Ct. 737, 38 L.Ed.2d 559 (1973)). Provided the district court " ‘ applies the correct criteria to the facts of the case, the decision should be considered to be within [its] discretion.’ " Bermudez, 490 F.2d at 725 (internal quotation marks omitted; citation omitted).

         III. PRELIMINARY MATTERS

         Before reaching the merits of Jackson's Objections to Magistrate Judge Kay's Report and Recommendation, the Court pauses to make two overarching observations about the nature of Jackson's Motion for Class Certification.

          First, despite having been afforded the opportunity to conduct limited pre-certification discovery, see supra Part I.D, Jackson's Motion for Class Certification offers no meaningful factual elaboration of the class beyond providing a rough estimate of the overall size of the class. Instead, Jackson has elected to rest almost exclusively on the factual allegations set forth in the Complaint, a document which was filed long before this Court authorized the parties to engage in pre-certification discovery and resolved various dispositive motions, narrowing the claims at issue in this action and articulating the legal principles applicable to Plaintiffs' extant claims. ^{8 8} Notably, even though the Court granted Jackson leave to conduct pre-certification discovery to obtain the official notice of violation, the police report, and the computerized docket sheet for each impoundment occurring during the putative class period— and the record suggests that Defendants produced a substantial volume of records responsive to Plaintiffs' requests— Jackson does not append this material to his Motion for Class Certification nor attempt to summarize or distill the information gleaned during pre-certification discovery in an attempt to illuminate for the Court the composition of the putative class and the overall propriety of allowing this case to proceed as a class action. Of course, this is not necessarily fatal to Jackson's Motion for Class Certification. To the extent Jackson is still able to satisfy this Court, after a rigorous analysis, that the requirements of Rule 23 are in fact satisfied in this case based upon the allegations set forth in the Complaint and the arguments of his counsel, then he may secure leave to represent the putative class. See Dukes, 131 S.Ct. at 2551. The Court merely notes that, as the proponent of the class, the burden ultimately lies with Jackson.

8 In connection with his Motion for Class Certification, Jackson has submitted (a) a declaration outlining the qualifications of his counsel, (b) correspondence between the parties concerning pre-certification discovery, (c) pleadings relating to Jackson's attempts to secure injunctive relief before the Superior Court of the District of Columbia, and (d) limited documentation allegedly evidencing some, but not all, of the damages suffered by the named plaintiffs. See Pl.'s Certif. Reply Exs. 1-8.

8 This argument is similar to that asserted by Defendants in the instant case.

          Second, as set forth in greater detail above, five of the eight counts identified in the Complaint remain extant in full or in part. See supra Part I.C. Some of those claims are challenges to the constitutionality of the Act as administered and enforced by Defendants, while others are common law claims sounding in conversion and damage to personal property. See id. In the course of reciting the procedural history of this case, Jackson mentions these five extant claims in passing. See Pl.'s Certif. Mem. at 6-7. Thereafter, in arguing in favor of class certification, Jackson focuses his attention exclusively on Plaintiffs' claim under Section 1983, a claim that Defendants deprived members of the putative class of personal and property interests without due process of law in violation of the Fifth and Fourteenth Amendments to the Constitution and violated their right to be free from unreasonable searches and seizures in violation of the Fourth Amendment to the Constitution. Consistent with this focus, when Jackson speaks of commonality in the proposed class, he consistently refers to the " constitutionality of defendants' due process procedures for seizing and adjudicating the status of seized pets," Pl.'s Certif. Mem. at 13, the " lack of due process prior to the ultimate decision on the pet's fate," Pl.'s Certif. Reply at 5, the " deprivation of constitutional rights," Pl.'s Objections at 12, and the like. By contrast, Jackson makes no substantive mention— none— of Plaintiffs' common law claims for conversion and damage to personal property. This omission is particularly troubling because the Individual Defendants argue at considerable length in their opposition that certification of the proposed class with respect to Plaintiffs' common law claims is inappropriate, see Indiv. Defs.' Certif. Opp'n at 4-5, 16-17, an argument to which Jackson offers no rejoinder whatsoever in his reply (or, for that matter, in his Objections to Magistrate Judge Kay's Report and Recommendation).^{9 9} Presented with this record, the Court simply has no basis for concluding that the certification of the putative class is appropriate with respect to Plaintiffs' common law claims. At a bare minimum, Jackson has failed to carry his burden of satisfying this Court that the requirements of Rule 23 are in fact satisfied in this case with respect to Plaintiffs' common law claims. See Dukes, 131 S.Ct. at 2551. Accordingly, the Court will deny Jackson's Motion for Class Certification insofar as it seeks certification of the putative class in connection with these claims.

9 While the Court declines to reach the question in the absence of any argument from Jackson, the Court pauses to observe that the Individual Defendants' arguments as to why certification of the class with respect to Plaintiffs' common law claims is inappropriate appear at first glance to be compelling. See Indiv. Defs.' Certif. Opp'n at 16-17. Briefly stated, there is reason to believe that establishing liability for conversion would require the fact-finder to look at each impoundment individually to determine whether the owner suffered a sufficiently substantial deprivation of his or her property interests to rise to the level of conversion and whether Defendants were in wrongful possession of the animal based upon the totality of the circumstances surrounding the seizure. Similarly, there is reason to believe that establishing liability for damage to personal property would require the fact-finder to look at each injury and make individual determinations as to whether Defendants breached a duty to a class member and caused a cognizable injury. Against these arguments, Jackson has offered nothing that would suggest that these claims are readily amenable to class-wide resolution.

9 " [I]t is commonly understood that class actions seeking injunctive and declaratory relief, ..., ‘ by their very nature’ present common questions of law and fact." Does I-III, 232 F.R.D. at 27 (citing 7A WRIGHT, MILLER & KANE, FEDERAL PRACTICE & PROCEDURE § 1763 at 226.) Plaintiff's claims for declaratory and injunctive relief in this case are moot in light of the enactment of the 2008 Amendment, leaving only claims for monetary damages.

         IV. DISCUSSION

          The class action is " an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). In order to justify a departure from that rule, " a class representative must be part of the class and ‘ possess the same interest and suffer the same injury’ as the class members.' " E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974)). In this case, Jackson seeks to serve as the sole representative for a class comprised of " [a]ll persons whose pets were seized in the District of Columbia by the defendants" during the period that the 2000 Act " was the operative law" — that is, until the date the 2008 Amendment and its implementing regulations entered into effect. Pl.'s Certif. Mem. at 4. He seeks certification of the putative class under Rule 23(b)(1) or (b)(3). Id. at 3. For the reasons set forth below, the Court concurs with and adopts Magistrate Judge Kay's bottom-line conclusion that Jackson has failed to discharge his burden of showing that certification of the class is appropriate. Accordingly, the Court will overrule Jackson's Objections, adopt Magistrate Judge Kay's Report and Recommendation, and deny Jackson's Motion for Class Certification.

          A. Jackson Has Failed to Show that He Satisfies the " Typicality" Requirement Under Rule 23(a)(3)

         Rule 23(a) and its typicality requirement " ensure [ ] that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate." Dukes, 131 S.Ct. at 2550. Generally speaking, " [t]ypicality is ... satisfied when the plaintiffs' claims arise from the same course of conduct, series or events, or legal theories of other class members." In re XM Satellite Radio Holdings Secs. Litig., 237 F.R.D. 13, 18 (D.D.C.2006) (citations omitted). " The facts and claims of each class member do not have to be identical to support a finding of typicality; rather, typicality refers to the nature of the claims of the representative, not the individual characteristics of the plaintiff." Radosti v. Envision EMI, LLC, 717 F.Supp.2d 37, 52 (D.D.C.2010) (internal quotation marks and notations omitted; citation omitted). At bottom, the typicality requirement is used to ascertain " whether the action can be efficiently maintained as a class and whether the named plaintiffs have incentives that align with those of the absent class members so as to assure that the absentees' interests will be fairly represented." In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. 12, 27 (D.D.C.2001) (citations omitted).

          It has frequently been observed that " [t]he commonality and typicality requirements ... tend to merge," with " [b]oth serving as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Falcon, 457 U.S. at 157-58 n. 13, 102 S.Ct. 2364. That sensible observation is particularly apt in this case. Here, the members of the proposed class suffered a wide range of deprivations, were provided with different kinds of notice at different points in time, and claim distinct injuries. These differences are of constitutional significance and, as such, implicate class members' very ability to prevail on their claims. Simply put, Jackson's claims are not typical of all or even most of the different claims that comprise the class. Indeed, the Court doubts that any single named plaintiff could serve as the representative for the entirety of the broad class proposed.^{10 10}

10 Originally, there were three named plaintiffs seeking to represent the class— Daskalea, Norris, and Jackson; Plaintiffs now attempt to proceed with Jackson as the sole representative of the putative class. See supra Part I.A.

10 Plaintiff has acknowledged that individual circumstances surrounding both the seizure and disposition of pets vary from plaintiff to plaintiff. For example, at the February 15, 2010 hearing, Plaintiff, through counsel, stated that some of the pets seized were sterilized; some received medical treatment; some were returned while others were placed for adoption or euthanized.

         The Court begins with an important observation about the limitations of Jackson's Motion for Class Certification in this respect. Jackson identifies the putative common question uniting the class in the following manner:

[T]he common issue is whether the various Defendants, in enforcing the prior Act, deprived Plaintiffs of " personal and property interests without due process of law, in violation of the Fifth and Fourteenth Amendments to the Constitution," as well as their right to be free from unreasonable searches and seizures pursuant to the Fourth Amendment to the Constitution.

Pl.'s Certif. Mem. at 13.^{11 11} However, at no point in his submissions does Jackson explain how the Plaintiffs would go about proving this question in the context of a class action. Indeed, completely absent from Jackson's submissions is any meaningful description of the basic legal principles governing Plaintiffs' extant claims. This omission is both inexplicable and unacceptable. It is Jackson's burden to establish that class members' claims " depend upon a common contention" and that the common contention is " of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity 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 (emphasis added). By tendering only generalities and no meaningful legal analysis, Jackson has failed to discharge his burden; his attempts to shift that burden to Defendants and this Court are patently impermissible.

11 Despite Jackson's passing references to " unreasonable searches and seizures," he never attempts to distinguish that theory of liability from his contention that Defendants denied the class due process, which is the only contention that receives any meaningful measure of attention in Jackson's submissions.

11 Lightfoot, supra, 246 F.R.D. 326.

         It may be that that Jackson's failure to address the legal framework governing his proffered common question was intentional since, once one takes a close look at that framework, it becomes clear that Jackson's claims are not typical of claims that are capable of class-wide resolution. Critical to this conclusion is the fact that this Court has already rejected Plaintiffs' facial challenge to the constitutionality of the Act, leaving only Plaintiffs' as-applied constitutional challenge, see Daskalea 4 , 710 F.Supp.2d at 41-42, something that Jackson mentions but does not appear to appreciate. Instead, as he has consistently in this action, Jackson continues to conflate Plaintiffs' facial and as-applied challenges. See, e.g., Pl.'s Certif. Mem. at 14 (" The due process defects complained of were suffered by all class members, because the former Act suffers from the same procedural flaw: the failure to provide pet owners with notice and an opportunity to be heard." ). The Court has previously warned Jackson to avoid the conflation of these theories:

Plaintiffs appear to be under the misguided belief that a holding by this Court that the Act is unconstitutional as previously written would, in effect, serve as a litigation " short-cut." * * * In other words, Plaintiffs contend that a finding in their favor as to the facial unconstitutionality of the Act would permit them to proceed directly to the damages stage, thereby avoiding litigation of their as-applied claim. Under this theory, Plaintiffs would be entitled to monetary damages for injuries caused by the enforcement of the Act without being required to first prove the merits of their as-applied claim, the litigation of which— unlike their facial challenge— would require the time and expense of discovery. Such an argument is patently incorrect. To the extent Plaintiffs seek compensatory damages for individual injuries allegedly sustained by application of the Act, they must proceed with litigation of their as-applied challenges.

Daskalea 4 , 710 F.Supp.2d at 45. Despite this admonition, Jackson never explains how Plaintiffs would " proceed with litigation of their as-applied challenges" within a class action. Id.

          Plaintiffs' constitutional claims are predicated upon alleged violations of the Due Process Clause, which provides that " [n]o personal shall ... be deprived of life, liberty, or property, without due process of law." There are three basic elements to a procedural due process claim: there must be (1) a deprivation; (2) of life, liberty, or property; (3) without due process of law. Propert v. District of Columbia, 948 F.2d 1327, 1331 (D.C.Cir.1991). It has long been established that " [t]he fundamental requirement of due process is the opportunity to be heard ‘ at a meaningful time and in a meaningful manner.’ " Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). However, it is equally fundamental that due process is " not a technical conception with a fixed conception unrelated to time, place and circumstances" ; rather, it is " flexible and calls for such procedural protections as the particular situation demands." Id. at 334, 96 S.Ct. 893.

          Consistent with these principles, " [t]he precise form of notice and the precise kind of hearing required [in a given circumstance] depend[ ] upon a balancing of the competing public and private interests involved." Propert, 948 F.2d at 1332.^{12 12} In determining what process is due, three distinct factors are considered— commonly referred to as the " Mathews factors," a reference to the Supreme Court decision in which they were first articulated:

12 In his submissions, Jackson relies heavily upon the United States Court of Appeals for the District of Columbia Circuit's decision in Propert, but that case was a single-plaintiff case and did not involve a class action. Moreover, the defendant in that case conceded that its policy was to provide no pre- or post-deprivation hearing of any kind, and it was that concession that the Court of Appeals found " fatal" to the policy's constitutional validity. Propert, 948 F.2d at 1333.

12 At the February 15, 2011 hearing, the Individual Defendants noted that Defendants Scnoor and Boozer were not involved in events relating to Mr. Jackson's dog and accordingly, they may have a unique defense against him. (Individual Defendants' Opposition at 19, n. 13.)

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [g]overnment's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews, Mathews Propert, see also United States v. James Daniel Good Real Prop., Gilbert v. Homar, ^{13 13}

          In his Motion for Certification, Jackson does not even argue in favor of a " one-size-fits-all" or " across-the-board" approach that could be applied in this case. Even if he had, the Court agrees with Magistrate Judge Kay that such an approach would be unworkable. See Report and Recommendation at 20 (concluding that " liability determinations will be based on individual circumstances" ). As the Court has previously had the occasion to observe, the operative iteration of the Act during the putative class period conferred " considerable discretion" upon the Humane Society and its employees. Daskalea 1 , 480 F.Supp.2d at 33. Once an animal had been deemed to be neglected, the statute only required the Humane Society to use " ‘ reasonable diligence to give notice’ " to the animal's owner, but did not specify the form or timing of the notice. Id. (quoting D.C.CODE § 22-1004(b)(1) (2002)); see also Daskalea 2 , 577 F.Supp.2d at 87-88. Similarly, the Act left it to the Humane Society to determine the post-seizure actions that it would apply in a given case: among other things, it could return the animal to the owner, retain the animal, place the animal up for adoption, or humanely destroy the animal. See D.C.CODE § 22-1004 (2002). And the Act did not attempt to define how the Humane Society might choose among these options. In short, the Act was sufficiently open-ended that the Humane Society's enforcement and administration of the Act were largely left to its discretion, and it therefore comes as no surprise that there would be considerable variation among class members' experiences. Cf. Dukes, 131 S.Ct. at 2554 (faulting plaintiffs for failing to identify " a common mode of exercising discretion" ). Indeed, members of the proposed class allegedly suffered a wide range of deprivations, were provided with different kinds of notice at different points in time, and claim distinct injuries.

         Of these differences, perhaps most important is that the putative class members are alleged to have suffered a wide range of deprivations: some pets were temporarily detained, others were permanently destroyed, and still others were forcibly sterilized or returned to their owners only after requiring the payment of fees and expenses or unwanted medical treatment. See First Am. Compl. ¶ 71. This is far from a trivial point; it goes to the very heart of Plaintiffs' claims. This is because the due process inquiry turns in part on " the private interest ... affected by the official action," Mathews, 424 U.S. at 335, 96 S.Ct. 893, and " [t]he magnitude of [the] deprivation is of critical significance in the due process calculus," Lassiter v. Dept. of Soc. Servs. of Durham Cnty., 452 U.S. 18, 40, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (Burger, J., dissenting) (citing Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)). Indeed, this Court has previously had the opportunity to explain why the magnitude of the deprivation may be significant in this case, observing that Defendants " must provide an owner notice and an opportunity for a hearing prior to permanently terminating an individual's interest in a seized animal," Daskalea 1 , 480 F.Supp.2d at 34 (emphasis added), but cautioning that " animal cruelty or neglect will often justify [an] immediate seizure" temporarily terminating an individual's interest in a seized animal even in the absence of a pre-deprivation opportunity to be heard, id. at 35; see also Propert, 948 F.2d at 1332 (" [A]lthough the provision of procedural safeguards sometimes may be postponed, such safeguards must be provided prior to the time that a deprivation becomes final." ) (citation omitted). In more concrete terms, an owner whose pet was humanely destroyed or put up for adoption will not be similarly situated to an owner whose pet was merely detained and returned to its owner. See Wall v. City of Brookfield, 406 F.3d 458, 460 (7th Cir.2005) (Posner, J.) (concluding that the " temporary deprivation" of a dog requires only " modest process" ). At bottom, the process that was constitutionally due will necessarily vary depending upon the nature and magnitude of the deprivation at issue.^{14 14}

14 Indeed, the Court need look no further than the three named plaintiffs to conclude that there is considerable variation among the deprivations allegedly suffered. Daskalea's pet, which was purchased in part for breeding, was temporarily detained and " forcibly sterilized" while in Defendants' custody; Norris's dog was temporarily detained and released upon Norris's agreement to pay certain fees and ensure that her dog got " unnecessary medical treatment" ; and Jackson's dog was temporarily detained and returned only after he agreed to get his dog " radical treatment" that led to the dog's death. First Am. Compl. ¶ ¶ 34, 41, 55, 64. As proposed, the deprivations within the putative class would sweep even more broadly: inevitably, some class members will have had their dogs returned to them only after paying for " the expense of ... care and provisions," D.C.CODE § 22-1004(a) (2002), others will have had their dogs " place[d] ... up for adoption in a suitable home," id. § 22-1004(b)(2)(A); still others will have their dogs " humanely destroy[ed]" and permanently lost, id. § 22-1004(b)(2)(C). Within these categories, there will be yet more variation, potentially constitutionally significant variation. For instance, for those dogs subjected to forced sterilization, it is arguably relevant whether the dog was purchased or suitable for breeding, such as Daskalea's, or merely a household pet, such as Jackson's. For those dogs that were temporarily detained but not destroyed, the length of the detention will inevitably vary. See Mathews, 424 U.S. at 341, 96 S.Ct. 893 (" [T]he possible length of wrongful deprivation of benefits ... is an important factor in assessing the impact of official action on the private interests." ). In other words, the alleged deprivations, and by extension the process that was constitutionally required, will differ considerably from case to case. Furthermore, although the Court need not reach the issue, the Court notes that there is some authority from other jurisdictions suggesting that a temporary dispossession of personal property may, in some circumstances, not even rise to the level of an actionable deprivation. See, e.g., Gall v. City of Vidor, 903 F.Supp. 1062, 1066 (E.D.Tex.1995); Kostiuk v. Town of Riverhead, 570 F.Supp. 603, 608 (E.D.N.Y.1983).

14 Defendant D.C. does not address certification under Rule 23(b)(1) in its Opposition.

          Similarly, the process required will vary depending upon the strength of the Defendants' interest in a given case. See Mathews, 424 U.S. at 335, 96 S.Ct. 893. In this regard, the exigency of the circumstances that lead to a particular seizure will affect the nature of the procedures required. Simply by way of example, assume that Defendants provided Daskalea and Norris the same notice and opportunity to be heard. Both Daskalea and Norris had their pets seized from their automobiles while they were at another location. See First Am. Compl. ¶ ¶ 31, 46. However, whereas it is alleged that Norris " parked her car under a large shaded tree ... [,] cracked all four car windows, [and] left food and water," id. ¶ 46, no comparable allegations appear with respect to Daskalea. All other things being equal, it is at least arguable that Defendants' interest in seizing Daskalea's dog would be stronger than their interest in seizing Norris's dog. While this may seem particularized, the Due Process Clause is fact-specific and only " calls for such procedural protections as the particular situation demands." Mathews, 424 U.S. at 334, 96 S.Ct. 893.

         Likewise, there are important variations within the class not just as to the process that may have been constitutionally due, but also as to the process that was actually provided. In this regard, Jackson has never suggested that the form and the timing of the notice and the opportunity to be heard provided to class members were consistent or even similar across the class. Indeed, the Court need look no further than the differences among the three named plaintiffs to conclude that this was not the case. According to the Complaint, Jackson was present at the time his pet was seized by the Humane Society, meaning that he was given contemporaneous, if not prior, notice of the deprivation. See First Am. Compl. ¶ 61. In contrast, Daskalea and Norris, and certainly other class members, had their pets seized while they were in another location. Id. ¶ ¶ 36, 48. More broadly, given the open-endedness of the Act, and the discretion afforded the Humane Society's law enforcement officers, there is no doubt that the process actually afforded to class members varied, which for obvious reasons has a central bearing on the validity of Plaintiffs' claims that they were denied due process.^{15 15} See Lightfoot, 273 F.R.D. at 331 (" [T]here is no definitive notice period supplied by Mathews or its progeny." ) (citation omitted).

15 Nor is it likely that the Defendants' ability to provide notice was consistent from case to case. Unlike the towing of automobiles at issue in Propert, where the owner's identity could be easily ascertained by licensing and registrations records, see Propert, 948 F.2d at 1334, class members' pets may have been seized while in an owner's vehicle or home, in a stranger's vehicle or home, or stray in the streets; some pets may have been tagged, others may not have been identified.

15 Guadamuz, supra, involved a request for declaratory and injunctive relief brought by plaintiffs challenging the Government's authority to withhold funds appropriated by Congress under two congressionally approved programs, the Rural Environmental Assistance Program and the Federally Assisted Code Enforcement Program, and the court determined that the class was certifiable under either Rule 23(b)(1) or 23(b)(2). 368 F.Supp. at 1235.

         Collectively, these considerations illustrate how Plaintiffs' as-applied challenges to Defendants' administration and enforcement of the Act are not amenable to resolution on a class-wide basis. Despite Jackson's mantra that " the prior Act fails to provide due process to pet owners," Pl.'s Certif. Reply at 5, this Court agrees with Magistrate Judge Kay that " liability determinations will be based on individual circumstances," Report and Recommendation at 20. Simply put, Jackson has framed his claims and the class claims with such a level of generality and abstraction as to render them essentially meaningless. Indeed, his " allegations reduce to an empty invocation of the legal standard governing procedural due process claims generally." Lightfoot, 273 F.R.D. at 325. From this perspective, Jackson's proffered " common question" is a perfect illustration of the United States Court of Appeals for the District of Columbia Circuit's sensible observation that, " ‘ at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality.’ " Love v. Johanns, 439 F.3d 723, 729-30 (D.C.Cir.2006) (quoting Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir.1998)). If the Court were to accept such a formulation, it would effectively be forced into the uncomfortable position of relying upon the " sweeping and categorical" approach to due process rejected by the Supreme Court. Gilbert, 520 U.S. at 931, 117 S.Ct. 1807.

          Instructive in this regard is the United States District Court for the Northern District of Illinois's decision in Jones v. Takaki, 153 F.R.D. 609 (N.D.Ill.1993). There, the court found that typicality was lacking where the plaintiffs " asserted a course of conduct and practice ... of not affording persons whose property ha[d] been seized illegally with a prompt post-deprivation hearing." Id. at 611. Ultimately, the court concluded that the " alleged practice [was] insufficient to meet the typicality requirement," reasoning that " [w]hether a delay in instituting [hearing] proceedings violate[d] due process entail[ed] a fact specific inquiry to be made on a case by case basis," with reference to such factors as the length of the delay, the reason assigned for the delay, whether the plaintiff asserted a right to a hearing, and the prejudice to the plaintiff. Id. at 611. Because the putative class representatives could not establish " the bulk of the elements of each class member's claim in the process of proving their own, they ... failed to meet the typicality requirement." Id. at 612.

         Those observations apply with no less force here. In the final analysis, Jackson has failed to supply a basis that would allow this Court to conclude that his claims are typical of claims that are amenable to resolution on a class-wide basis. There is no reason to believe that this action can be efficiently maintained as a class or that Jackson's interests sufficiently align with those of the class. See In re Lorazepam, 202 F.R.D. at 27 (D.D.C.2001). Accordingly, the Court will deny Jackson's Motion for Class Certification based on his failure to show that he satisfies the typicality requirement under Rule 23(a)(3).

          B. Jackson Has Failed to Establish that Certification of the Proposed Class Is Appropriate Under One of the Subdivisions of Rule 23(b)

         Even where each of the four prerequisites set forth in Rule 23(a) is satisfied, the proponent of the class bears the further burden of establishing that the class is maintainable under one of the subdivisions of Rule 23(b). In this case, Jackson relies upon subdivisions (b)(1) and (b)(3). However, for the reasons set forth below, the Court concurs with Magistrate Judge Kay's conclusion that Jackson has failed to establish that certification of the proposed class is appropriate under either of these subdivisions. See Report and Recommendation at 16-25. This failure provides a sufficient basis for denying Jackson's Motion for Class Certification, one that exists separate and apart from Jackson's failure to satisfy the typicality requirement of Rule 23(a)(3). See supra Part IV.A.

         1. Certification Under Rule 23(b)(1) Is Inappropriate Because Plaintiffs' Remaining Claims Seek Individualized Monetary Relief

         Quite some time ago, the Supreme Court expressed serious doubt that claims for individualized monetary relief could be properly certified under subdivisions (b)(1) and (b)(2) of Rule 23, as opposed to subdivision (b)(3). See Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121, 114 S.Ct. 1359, 128 L.Ed.2d 33 (1994) ( per curiam ). Recently, those expressions of doubt became law, when the Supreme Court held in Dukes that " individualized monetary claims belong in Rule 23(b)(3)," Dukes, 131 S.Ct. at 2558, " at least where ... the monetary relief is not incidental," id. at 2557.

          True, the Supreme Court's decision in Dukes was rendered upon review of a motion for class certification under subdivision (b)(2), not subdivision (b)(1), but neither the language nor the logic of the Court's holding was so limited. First, the fundamental underpinning of the Court's holding was that " [t]he procedural protections attending the (b)(3) class— predominance, superiority, mandatory notice, and the right to opt out— are missing from [subdivision] (b)(2)," Dukes, 131 S.Ct. at 2558, and those procedural protections are no less absent from subdivision (b)(1). Indeed, the Supreme Court acknowledged as much, noting that " unlike (b)(1) ... classes, the (b)(3) class is not mandatory; class members are entitled to receive ‘ the best notice that is practicable under the circumstances' and to withdraw from the class at their option." ^{16 16} Dukes, 131 S.Ct. at 2558 (citing FED.R.CIV.P. 23(c)(2)(B)). Second, the Supreme Court plainly viewed subdivisions (b)(1) and (b)(2) to be in one category and subdivision (b)(3) to be in a category of its own, observing that unlike the " adventuresome innovation" of Rule 23(b)(3), " [c]lasses certified under (b)(1) and (b)(2) share the most traditional justifications for class treatment— that individual adjudications would be impossible or unworkable, as in a (b)(1) class, or that the relief sought must perforce affect the entire class at once, as in a (b)(2) class." Dukes, 131 S.Ct. at 2558 (internal quotation marks omitted; citation omitted).

16 Parenthetically, the Court notes that Jackson has never asked this Court to certify a class under subdivision (b)(1) while engrafting onto that subdivision the procedural protections that accompany classes certified under subdivision (b)(3), including opt-out rights. Even if he had, adopting such an approach in this case by allowing parties to opt out of the class would fundamentally undermine Jackson's proffered justifications for certification under subdivision (b)(1)— namely, that individual adjudications would create a risk of establishing " incompatible standards of conduct" or be practically " dispositive of the interests of the other members not parties to the individual adjudications." FED.R.CIV.P. 23(b)(1)(A)-(B); see also Keepseagle v. Johanns, 236 F.R.D. 1, 3 (D.D.C.2006) (" [O]pt outs should not be permitted if it would undermine the policies behind (b)(1) ... certification." ) (citing Eubanks v. Billington, 110 F.3d 87, 94-95 (D.C.Cir.1997)).

16 Moysey involved a determination of the legality of a uniform OPM employment practice affecting the treatment of rehabilitated disability annuitants age 60 or older. 481 F.Supp. 850.

          Afforded a fair construction, there is every reason to believe that the Supreme Court's holding that " individualized monetary claims belong in Rule 23(b)(3)," Dukes, 131 S.Ct. at 2558, " at least where ... the monetary relief is not incidental," id. at 2557, applies with equal force to subdivision (b)(1). Indeed, in the short time since Dukes was decided, the one court that has had the opportunity to address the question has reached the same conclusion. See Altier v. Catastrophe Response, LLC, Civil Action Nos. 11-241, 11-242, 2011 WL 3205229, at *14-15 (E.D.La. July 26, 2011) (reading Dukes as holding that certification under Rule 23(b)(1) is inappropriate where monetary relief predominates). Even before Dukes, several courts had concluded that certification under subdivision (b)(1) is inappropriate where the predominant relief sought by the class is individualized monetary damages. See, e.g., Casa Orlando Apts., Ltd. v. Fed. Nat'l Mortg. Ass'n, 624 F.3d 185, 197 (5th Cir.2010); Babineau v. Fed. Express Corp., 576 F.3d 1183, 1195 (11th Cir.2009); Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1193 (9th Cir.2001). The Court agrees that this is the proper approach.

         The questions that remain are (a) whether Plaintiffs' extant claims seek monetary relief on behalf of the class and (b) whether such relief predominates over, or rather is merely incidental to, other forms of relief. With respect to the second question, this Court has already held that Plaintiffs' claims for declaratory and injunctive relief have been rendered moot by virtue of the 2008 Amendment to the Act. See Daskalea 4 , 710 F.Supp.2d at 41-42. As a result, monetary relief is now " the sole remedy sought" by Plaintiffs in this action, Richards, 453 F.3d at 531 n. 8, meaning that the Court need not ask whether monetary relief is the predominant form of relief or merely " incidental" to other forms of relief. Cf. Dukes, 131 S.Ct. at 2557 (suggesting that it is an open question whether " incidental" claims for monetary relief may be sought in (b)(2) classes). With respect to the first question, the Court concurs with Magistrate Judge Kay that class members' damages in this case will be highly individualized and are not susceptible to generalized, class-wide proof. See Report and Recommendation at 22 (" [T]he compensable damages sought by each plaintiff ... will vary widely based on the value of the seized pet for breeding purposes, the alleged procedures performed by the [Humane Society], the length of the pet's detention, ... and a host of other factors." ) (internal quotation marks omitted; citation omitted). Indeed, although Jackson attempts to minimize the difference among class members' alleged damages, Jackson concedes that individualized determinations would be required to assess " [t]he value associated with special pets, such as pedigree dogs, those maintained for breeding purposes, or specially trained service animals." Pl.'s Certif. Reply at 16. Perhaps more importantly, the putative class members are alleged to have suffered a wide range of deprivations: some pets were temporarily detained, others were permanently destroyed, and still others were forcibly sterilized or returned to their owners only after requiring fees and expenses or unwanted medical treatment. See First Am. Compl. ¶ 71. The alleged deprivations, and by extension the resultant damages to the owner, are not consistent from case to case. In short, Plaintiffs seek individualized monetary relief. Accordingly, certification under subdivision (b)(1) is inappropriate.           2. Certification Under Rule 23(b)(1) Is Inappropriate Because Jackson Has Failed to Show that the Subdivision's Concerns Apply Here

         Certification under Rule 23(b)(1) is appropriate where requiring the prosecution of separate actions by individual class members would run the risk of establishing " incompatible standards of conduct" for the defendants, FED.R.CIV.P. 23(b)(1)(A), or where individual adjudications would, " as a practical matter, ... be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests," FED. R. CIV. P. 23(b)(1)(B). Conceptually, subdivisions (b)(1)(A) and (b)(1)(B) address " the same fact situation from the defendant[s'] and the class members' standpoints respectively." 2 H. NEWBERG & A. CONTE, NEWBERG ON CLASS ACTIONS § 4:3 (4th ed. 2002). In this case, Jackson has failed to establish that certification is appropriate under either subdivision (b)(1)(A) or (b)(1)(B), This provides a sufficient basis for denying certification under these subdivisions, one that exists separate and apart from the fact that Plaintiffs seek individualized monetary relief on behalf of the putative class. See supra Part IV.B.1.

         i. Subdivision (b)(1)(A)

         Certification is appropriate under subdivision (b)(1)(A) where " prosecuting separate actions by ... individual class members would create a risk of ... inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class." FED.R.CIV.P. 23(b)(1)(A). This language is susceptible to a broad, but ultimately untenable, reading: in the absence of certification, there will always be the risk that the party opposing the class " may be exposed to individual suits and conflicting judgments on liability." 2 H. NEWBERG & A. CONTE, NEWBERG ON CLASS ACTIONS § 4:4 (4th ed. 2002). Therefore, certification under subdivision (b)(1)(A) requires something more— namely, a legitimate risk that separate actions may establish " incompatible standards of conduct." FED.R.CIV.P. 23(b)(1)(A). This requirement is an outgrowth of the justification for certification under subdivision (b)(1)(A)— " that individual adjudications would be impossible or unworkable." Dukes, 131 S.Ct. at 2558.

          In this case, Jackson's arguments in favor of certification under subdivision (b)(1)(A) are summary and unilluminating. In this regard, he characterizes the basic question in this action as whether Defendants afforded class members an opportunity to contest " the seizure and terms of release [of their pets]," noting that " these provisions did not exist in the defective former statute," ^{17 17} Pl.'s Objections at 5, and contends that certification under subdivision (b)(1)(A) is appropriate because " [s]eparate actions by pet owners would create the risk of varying adjudications with respect to the Defendants' post-seizure rights and duties, and risk establishing incompatible standards of conduct for both the District and the individual [Humane Society] officers," Pl.'s Certif. Mem. at 18-19. The problem with this argument, like so many of the arguments tendered by Jackson in favor of certification, is that it ignores the fact that this Court has already dismissed Plaintiffs' facial challenge to the constitutionality of the Act as moot in light of the 2008 Amendment to the Act and the implementing regulations. See Daskalea 4 , 710 F.Supp.2d at 41-42. As a result, Plaintiffs' claims for forward-looking declaratory and injunctive relief are no longer at issue in this action. See id. In other words, in light of superseding amendments to the Act, this action no longer involves delineating Defendants' responsibilities to class members— or non-parties similarly situated to class members— in the future. As it now stands, this is a case about securing monetary relief for class members based on individualized past harms. Separate actions and determinations will not create the danger of conflicting and incompatible court orders governing Defendants' conduct. Accordingly, certification under subdivision (b)(1)(A) is inappropriate.

17 In passing and with no meaningful explanation, Jackson appears to suggest that the current iteration of the Act suffers from similar defects. See Pl.'s Certif. Reply at 12. The simple and obvious response to this suggestion is that the current iteration of the Act is not at issue in this action. In any event, despite Jackson's apparent belief to the contrary, the regulations implementing the 2008 Amendment articulate the contours of the procedures for administering and enforcing the Act. See D.C. MUN. REGS. tit. 24, §§ 1500-1515.

17 The general authority of the WHS to impound animals is not challenged.

         ii. Subdivision (b)(1)(B)

         Certification under Rule 23(b)(1)(B) is appropriate where " prosecuting separate actions by ... individual class members would create a risk of ... adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests." FED.R.CIV.P. 23(b)(1)(B). The language of the subdivision may at first glance appear sweeping, but " courts have long recognized that [its] meaning ... is not as broad as the plain language [might] impl[y]." In re Telectronics Pacing Sys., Inc., 221 F.3d 870, 877 (6th Cir.2000) (citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 842, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999)). Indeed, the Supreme Court has counseled against the " adventurous application of Rule 23(b)(1)(B)," Ortiz, 527 U.S. at 845, 119 S.Ct. 2295, directing courts to take into account the historical models for certification under the subdivision and warning that departures from the historical models should not be undertaken lightly, id. at 842, 119 S.Ct. 2295.

          In this regard, it is widely recognized that " [t]he traditional ... use of subsection (b)(1)(B) class actions is in ‘ limited fund’ cases where claims are aggregated against a res or preexisting fund insufficient to satisfy all claims." Telectronics, 221 F.3d at 877. Other " classical examples" include actions by shareholders to fix their rights, actions against a fiduciary to restore the subject to the trust, and suits to reorganize fraternal benefit societies. See Ortiz, 527 U.S. at 834, 119 S.Ct. 2295. All these examples implicate either (a) a shared or collective right or (b) limited funds or resources to be allocated among claimants, with the common thread being that " the shared character of rights claimed or relief awarded entails that any individual adjudication by a class member disposes of, or substantially affects, the interests of absent class members." Id.

          In this case, certifying the class proposed by Jackson would constitute a significant and inappropriate departure from these historical models. First, it is undisputed that there is no limited fund or resource that would risk being depleted were class members' claims prosecuted on an individual basis. Each class member could hypothetically bring a separate action against the District of Columbia and secure the same monetary relief sought in this action. Second, because this Court has already held that Plaintiffs' claims for declaratory and injunctive relief have been rendered moot by virtue of the 2008 Amendment to the Act, see Daskalea 4 , 710 F.Supp.2d at 41-42, the claims that remain in this action are fundamentally retrospective, directed towards compensating class members for harms they allegedly suffered in the past. In other words, in light of superseding amendments to the Act, this action no longer involves delineating Defendants' responsibilities to class members— or non-parties similarly situated to class members— in the future. No truly shared or collective right remains at issue. Third, and perhaps most importantly, Plaintiffs' as-applied constitutional challenges to the Act— the only claims that are afforded any meaningful measure of attention in Jackson's submissions— turn on individualized determinations of liability, see supra Part IV.A, and they will require individualized determinations as to the damages sustained by each class member, see supra Part IV.B.1. Given the individualized nature of harm suffered by each class member, the only practical effect of an individual adjudication would be the possibility that any disposition might be cited for its precedential or persuasive force, which is insufficient to warrant certification under subdivision (b)(1)(B).^{18 18} See Green v. Occidental Petroleum Corp., 541 F.2d 1335, 1340 n. 10 (9th Cir.1976) (" [T]he stare decisis consequences of an individual action ... can[not] supply ... the practical disposition of the rights of the class, or the substantial impairment of those rights." ); see generally 2 H. NEWBERG & A. CONTE, NEWBERG ON CLASS ACTIONS § 4:10 (4th ed. 2002). At bottom, this is a case about securing monetary relief for class members based on individualized past harms. Under the circumstances presented, there is no reason to conclude that separate actions " would be dispositive of the interests" of non-participating class members or " substantially impair or impede their ability to protect their interests." FED.R.CIV.P. 23(b)(1)(B). As such, certification under subdivision (b)(1)(B) is inappropriate.

18 Jackson does not, nor could he, argue that a judgment adverse to an individual class member in one case could be cited as grounds for invoking claim or issue preclusion in a separate action.

18 Individual Defendants further argue that the Plaintiff's Renewed Motion fails to comply with the notice requirements for a Rule 23(b)(3) class, which would be another grounds to defeat applicability of 23(b)(3).

         Notably, Jackson does not cite to a single case where certification was granted under subdivision (b)(1)(B) under similar circumstances. Instead, he claims to rely upon what he refers to as the " government entity" or " public utility" application of subdivision (b)(1)(B). See Pl.'s Certif. Reply at 10. However, in making this argument, Jackson appears to be laboring under the misapprehension that subdivision (b)(1)(B) may be invoked whenever the government is a named defendant. The essential thrust of his argument is as follows:

The District of Columbia is a named defendant in this action. The [C]ourt has previously found that plaintiff's claims against the individual defendants, in their official capacities, is [sic] in effect a suit against [the] District of Columbia also. Accordingly, class certification pursuant to the government entity application of Rule 23(b)(1)(B) is appropriate.

Pl.'s Certif. Reply at 10; see also Pl.'s Objections at 6 (reiterating this argument verbatim). In a similar vein, he contends elsewhere that " class actions are a proper means for challenging statutory enactments, because the defendants, as government actors, are required to treat all class members alike." ¹⁹ Pl.'s Certif. Mem. at 19.

19 Throughout his submissions, Jackson cites to the same three authorities in support of this proposition. In the first, the one Jackson relies upon most heavily and the one that he characterizes as " dispositive," Pl.'s Certif. Mem. at 17, the United States Court of Appeals for the District of Columbia Circuit found no occasion to resolve the question whether certification was appropriate under subdivision (b)(1)(B) because the government did not challenge the merits of the certification ruling on appeal. Larionoff v. United States, 533 F.2d 1167, 1181 n. 36 (D.C.Cir.1976), aff'd, 431 U.S. 864, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977). In the second, a nearly four-decade-old, non-binding opinion from this Court, the Court merely stated in formulaic fashion the required analysis under Rule 23, offering no meaningful explanation of how those principles applied to the case. See Guadamuz v. Ash, 368 F.Supp. 1233, 1235 (D.D.C.1973). In the third, a nearly four-decade-old, non-binding opinion from the United States District Court for the Eastern District of Pennsylvania, the court merely held that certification under subdivision (b)(1)(B) was appropriate where the defendant was required to maintain a uniform set of rules and regulations governing the responsibilities of the plaintiffs. See Pa. Ass'n for Retarded Children v. Commonwealth of Pennsylvania, 343 F.Supp. 279, 291-92 (E.D.Pa.1972).

         Quite simply, Jackson's argument is misguided. While it is entirely non-controversial to suggest that subdivision (b)(1) may be invoked where the defendant is " obliged to treat the members of the class alike," Amchem, 521 U.S. at 614, 117 S.Ct. 2231, that principle has no application to this case. True, if Plaintiffs' facial challenge to the constitutionality of the Act remained viable, there would be a plausible argument that a determination as to the facial validity of the Act in one individual action would impair or impede a non-participating class member's ability to litigate that issue in a separate action. But Plaintiffs' facial challenge has been dismissed as moot, and Plaintiffs' claims for declaratory and injunctive relief are no longer extant. See Daskalea 4 , 710 F.Supp.2d at 41-42. At bottom, this action is now about compensating class members for harms they allegedly suffered in the past. Because resolution of whether a particular class member was denied due process will turn on the fact-intensive inquiry demanded by Mathews and its progeny, see supra Part IV.A, an adjudication of one class member's claims will not substantially impair or impede another class member's ability to pursue his or her claims in a separate action. In this legal context, it is entirely unremarkable to suggest that different outcomes may be reached on the facts presented in different cases.²⁰           In the final analysis, Jackson has failed to provide a credible basis for concluding that separate actions " would be dispositive of the interests" of non-participating class members or " substantially impair or impede their ability to protect their interests." FED.R.CIV.P. 23(b)(1)(B). Accordingly, certification under subdivision (b)(1)(B) is inappropriate.

20 The same holds true for Jackson's related argument that certification under (b)(1)(B) is appropriate because some of the Defendants have raised, or are expected to raise, defenses concerning qualified immunity. Pl.'s Certif. Mem. at 18. In this regard, Jackson contends that " [a] decision adverse to the Plaintiffs on ... these governmental immunity defenses would, as a practical matter, substantially impair or impede the ability of non-parties to protect their interests." Id. However, because any qualified immunity defense would necessarily mirror Plaintiffs' as-applied challenges to the Defendants' administration and enforcement of the Act, any determination in this regard would be similarly individualized and thus have no discernible actual or practical effect in separate actions apart from possibly having some precedential or persuasive value, which alone is insufficient. Furthermore, the qualified immunity inquiry turns, in part, on a reasonableness inquiry that will necessarily vary from case to case, limiting the precedential and persuasive value of a decision from one case in another. See Kalka v. Hawk, 215 F.3d 90, 94 (D.C.Cir.2000) (" Qualified immunity shields officials from liability for damages so long as their actions were objectively reasonable, as measured in light of the legal rules that were ‘ clearly established’ at the time of their actions." ) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In short, despite Jackson's protestations to the contrary, there is no reason to presume that " thousands of plaintiffs [would be asked] to live with the immunity and privilege decision arrived at in the litigation of a single claimant." Pl.'s Objections at 9.

         3. Jackson Has Failed to Establish that Certification Under Rule 23(b)(3) Is Appropriate

         Jackson also seeks certification under Rule 23(b)(3). Certification under subdivision (b)(3) is appropriate where " the questions of law or fact common to class members predominate over any questions affecting only individual members, and ... a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Ultimately, " [t]he object is to get at the cases where a class action promises important advantages of economy of effort and uniformity of result without undue dilution of procedural safeguards for members of the class or for the opposing party." Benjamin Kaplan, Continuing Work of the Civil Committee, 81 HARV. L.REV.. 356, 390 (1967). In this case, Jackson has failed to show that either the " predominance" or " superiority" criteria are satisfied.

          First, the predominance inquiry " duplicates the commonality analysis in many respects," albeit " delving further into ... the relative importance of the common issues to the case." Barnes v. District of Columbia, 242 F.R.D. 113, 123 (D.D.C.2007) (citation omitted). In other words, one " requires that common questions exist" ; the second " requires that they predominate." 2 H. NEWBERG & A. CONTE, NEWBERG ON CLASS ACTIONS § 4:22 (4th ed. 2002). Generally speaking, predominance will exist where issues that may be proven or disproven through " generalized evidence" on a " simultaneous, class-wide basis" overshadow issues that require examination of each class member's individualized circumstances. In re Vitamins Antitrust Litig., 209 F.R.D. 251, 262 (D.D.C.2002) (internal quotation marks omitted; citation omitted). The Supreme Court has characterized the showing required for predominance as " far more demanding" that the one required to satisfy the commonality requirement under Rule 23(a). Amchem, 521 U.S. at 624, 117 S.Ct. 2231. At bottom, the essential question is whether the proposed class is " sufficiently cohesive to warrant adjudication by representation." Id. at 623, 117 S.Ct. 2231.

          In this case, the Court agrees with Magistrate Judge Kay that certification is inappropriate under subdivision (b)(3) because Jackson has failed to show that common questions predominate over individual ones. In this regard, the essential underpinning of Jackson's argument is that " [t]he procedural due process [inquiry] ... is the same for all plaintiffs, because the statute is the same," Pl.'s Objections at 14, and he claims that " [w]hether the challenged Act deprived plaintiffs of their constitutionally protected rights— the liability issue in this case— is subject to generalized proof, because every seizure was made pursuant to the same statute." Pl.'s Certif. Mem. at 20. However, as explained in depth elsewhere in this opinion, Jackson's argument is misplaced, and the Court concurs with Magistrate Judge Kay that liability determinations will necessarily be individualized and that Plaintiffs' claims are not amenable to class-wide resolution. See supra Part IV.A. Furthermore, despite Jackson's efforts to minimize the difference between class members, it is also clear that this action would require individual determinations as to each class member's damages.²¹ See supra Part IV.B.1.

21 The Court notes that damages will require individualized determinations in this case not because the presence of individualized damage determinations is necessarily fatal to certification under subdivision (b)(3)— district courts may, in appropriate circumstances, bifurcate liability and damage determinations or use a variety of other case management tools to minimize the adverse impact of individualized damage questions— but rather because Jackson claims that damages are " subject to generalized, class-wide proof" and contends that the question of damages actually supports certification. Pl.'s Certif. Mem. at 21-22. However, the nature of the damages inquiries in this case, if anything, counsels against certification. See supra Part IV.B.1.

         Second, " the superiority requirement ensures that resolution by means of a class action will ‘ achieve economies of time, effort, and expense, and promote ... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable consequences.’ " Vista Healthplan v. Warner Holdings Company, 246 F.R.D. 349, 360 (D.D.C.2007) (quoting Amchem, 521 U.S. at 615, 117 S.Ct. 2231). This Court concurs with Magistrate Judge's Kay's assessment that Jackson's " cursory" treatment of the factors relevant to establishing superiority is insufficient to demonstrate that allowing this case to proceed as a class action would be superior to other means of adjudication. Report and Recommendation at 25. Jackson's arguments are made in summary form and are unaccompanied by any meaningful factual elaboration. Pl.'s Certif. Mem. at 22-23. Again, the Court reiterates that it is Jackson's burden to establish the propriety of certification, and he has failed to discharge that burden. In any event, for all the reasons previously discussed, the Court remains unconvinced that certification would bring with it advantages of economy or uniformity of results.²²

22 Furthermore, there is no reason to believe that the issues with certification identified by Magistrate Judge Kay and this Court could be softened by the judicious application of Rule 23(c)(4) and (5), or by any of the other case management tools available to a court in overseeing a class action. In any event, Jackson has failed to articulate any specific proposal that would allow the Court to reach that conclusion.

         In sum, the Court concludes that Jackson has failed to show that either the " predominance" or " superiority" criteria are satisfied in this case. Accordingly, certification under subdivision (b)(3) is inappropriate.

          C. Plaintiffs' Counsel Will Be Required to File a Formal Suggestion of Norris's Death with the Court

          There is one final, unrelated matter to address. During a status hearing held on June 14, 2010, Plaintiffs' counsel orally advised the Court that Norris is now deceased. See Order (June 14, 2011) at 1. The procedure to be followed after a party dies during the pendency of an action is prescribed by Rule 25(a)(1):

If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.

FED.R.CIV.P. 25(a)(1). However, " the ninety-day period under Rule 25(a)(1) is not triggered unless a formal suggestion of death is made on the record, regardless of whether the parties have knowledge of a party's death." Lightfoot v. District of Columbia, 629 F.Supp.2d 16, 18 (D.D.C.2009) (internal quotation marks omitted; citation omitted); see also McSurely v. McClellan, 753 F.2d 88, 98 (D.C.Cir.) (" [A] suggestion of death does not set in motion Rule 25(a)(1)'s ninety-day limitation unless the suggestion ‘ identif[ies] the successor ... who may be substituted as a party.’ " ) (quoting Rende v. Kay, 415 F.2d 983, 986 (D.C.Cir.1969); notations in original), cert. denied, 474 U.S. 1005, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985). Plaintiffs' counsel's oral representations in open court were not sufficient to trigger Rule 25(a)(1)'s ninety-day deadline to file a motion for substitution. Accordingly, the Court will require Plaintiffs' counsel to file a formal suggestion of death with the Court by no later than August 24, 2011. Any party wanting to file a motion for substitution will have to and including November 22, 2011 to do so. If no motion for substitution is filed by the designated date, the Court will dismiss Norris's claims from this action. In addition, the Court requests that Plaintiffs' counsel exercise his best efforts to promptly determine whether an estate was opened at the time of Norris's death or whether there is any other appropriate successor or representative who might seek to be substituted in Norris's place so that the resolution of this action is not further delayed.

         V. CONCLUSION

         For the reasons set forth above, the Court concludes that Jackson has failed to establish that he satisfies the typicality requirement under Rule 23(a)(3) and that certification is appropriate under any of the subdivisions of Rule 23(b). Accordingly, the Court will overrule Jackson's Objections, adopt Magistrate Judge Kay's Report and Recommendation, and deny Jackson's Motion for Class Certification. An appropriate Order accompanies this Memorandum Opinion.

          REPORT AND RECOMMENDATION

          ALAN KAY, United States Magistrate Judge.

         This matter was referred to the undersigned, pursuant to Local Civil Rule 72.3(a), for a Report and Recommendation regarding Plaintiff Willie A Jackson's Renewed Motion for Class Certification [87].¹ (Order Referring Case to Magistrate Judge [92].) On February 15, 2011, the undersigned held a hearing on the Renewed Motion for Class Certification (" Renewed Motion" ) [87]. ² Upon consideration of the Renewed Motion and the argument presented at the hearing, the undersigned recommends that Renewed Motion for Class Certification be denied.

         I. Background

          This case involves claims for deprivation of due process pursuant to 42 U.S.C. § 1983 and freedom from unreasonable search and seizure (Count I); violation of due process through application of the Freedom from Cruelty to Animal Protection Act (the " Act" ), D.C. Code § 22-1001 (2002) et seq., to the Plaintiffs (Count III); damage to property (Count IV); and conversion (Count V).³ Plaintiff Willie Jackson (hereinafter " Plaintiff" ) alleges that at all times relevant to the Amended Complaint, he was a pet owner in the District of Columbia who " had [his] pet seized, detained and damaged without due process of law." (Am.Compl. [7] ¶ 1.)

         The Amended Complaint names as Defendants the Washington Humane Society (" WHS" ); the District of Columbia (the " District" or " D.C." ); Jody Huckaby, individually and in her official capacity as Executive Director at the WHS; Adam Parascandola, individually and in his official capacity as Director of Law Enforcement at the WHS; Sonya Scnoor, individually and in her capacity as a WHS law enforcement officer; Rosemary Vozobule, individually and in her official capacity as Director of Programs at the WHS; Lindsay Gardewin, individually and in her official capacity as a WHS law enforcement officer; and H.O. Boozer, individually and in her official capacity as a WHS law enforcement officer (collectively, the " Individual Defendants" ) and John Does 1-10 ⁴

         The proposed class includes " similarly situated pet owners living in the District of Columbia, and those persons not residents of the District, but who have had their animals seized by defendants, on or after August 4, 2000" (Am. Compl. [7] ¶ 142), the date the Act became effective, and continuing until the Animal Protection Amendment Act of 2008 (" 2008 Amendment" ) became effective on or about December 5, 2008. At the time the lawsuit was filed and the events noted therein occurred, the relevant portion of the Act consisted of the following paragraphs, reprinted below:

(a) Any person found violating the laws in relation to cruelty to animals may be arrested and held without a warrant.... The person making the arrest or the humane officer taking possession of an animal shall have a lien on said animals for the expense of such care and provisions.

(b)(1) A humane officer of the Washington Humane Society may take possession of any animal to protect it from neglect or cruelty. The person taking possession of the animal or animals, shall use reasonable diligence to give notice thereof to the owner of animals found in the charge or custody of [a] person arrested, and shall properly care for the animals until the owner shall take charge of the animal; provided that, the owner shall take charge of the animals within 20 days from the date of the notice.

(2) If the owner or custodian of the animal or animals fails to respond after 20 days, the animal or animals shall become the property of the Washington Humane Society and the Washington Humane Society shall have the authority to:

(A) Place the animal or animals up for adoption in a suitable home;

(B) Retain the animal or animals; or

(C) Humanely destroy the animal or animals.

D.C. Code § 22-1004.

         The 2008 Amendment, in relevant part, added a new substantive subsection (c) of D.C. Code § 22-1004, as follows:

(c)(1) The Mayor shall establish by rulemaking a notice and hearing process for the owner of the animal to contest the seizure, detention, and terms of release and treatment of the animal, the allegation of cruelty, abandonment, or neglect, and the imposition of the lien and costs assessed for caring and providing for the animal.

(2) Within 30 days of December 5, 2008, the proposed rules shall be submitted to the Council for a 45-day period of review, excluding weekends, legal holidays, and days of Council recess. If the Council does not approve or disapprove of the proposed rules, by resolution, within the 45-day review period, the rules shall be deemed approved.

D.C. Code § 22-1004(c)

         II. Legal Standard

         Federal Rule of Civil Procedure 23(a) establishes four prerequisites to a class action:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (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). A plaintiff moving for class certification carries the burden of establishing all four prerequisites and courts may exercise broad discretion in determining whether they have been met. Jane Does I-III v. District of Columbia, Civil Action No. 01-02398(HHK), 2006 WL 2864483, at *1 (D.D.C. October 5, 2006) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). See also Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C.Cir.1994) (" A district court exercises broad discretion in deciding whether to permit a case to proceed as a class action." (citing Bermudez v. Dep't of Agriculture, 490 F.2d 718, 725 (D.C.Cir.1973))).

         A failure to adequately demonstrate any of these four requirements is " fatal to class certification." Garcia v. Johanns, 444 F.3d 625, 631 (D.C.Cir.2006) (citing In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 106 (D.C.Cir.2002)). If these four requirements are satisfied, a class action may be maintained under one of the types of class actions enumerated in Rule 23(b), if the standards therein are met. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., __ U.S. __, 130 S.Ct. 1431, 1437, 176 L.Ed.2d 311 (2010); Garcia, 444 F.3d at 631, n. 6.

         Rule 23(b)(1) requires the Plaintiff to demonstrate that:

prosecuting separate actions by or against individual class members would create a risk of (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to individual adjudications or would substantially impair or impede their ability to protect their interests[.]

Fed.R.Civ.P. 23(b)(1)(A) & (B).

         Rule 23(b)(3) requires that:

the court finds that questions of law or fact common to the members of the class predominate over any questions affecting individual members, and that a class action is superior to other available methods for the fair efficient adjudication of the controversy.

Fed.R.Civ.P. 23(b)(3).

         In determining whether class certification is appropriate, a court may have to " probe behind the pleadings before coming to rest on the certification question." Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). See also Jones v. Rossides, 256 F.R.D. 274, 276 (D.D.C.2009) (" The court may ... consider matters beyond the pleadings to ascertain whether the claims or defenses are susceptible to resolution on a class-wide basis." (citing McCarthy v. Kleindienst, 741 F.2d 1406, 1413, n. 8 (D.C.Cir.1984))).

         III. Analysis

         A. Rule 23(a) Requirements

         1. Numerosity

          The first prong of Rule 23(a) requires the representative party to demonstrate numerosity. Plaintiff seeks to certify a class consisting of all " similarly situated pet owners living in the District of Columbia, and those persons who are not residents of the District, but who have had their animals seized by defendants, on or after August 4, 2000," the date on which the Act became law, until such time as the Amendment became effective on or about December 5, 2008. (Renewed Motion at 7; Am. Compl. ¶ 142.) Plaintiff estimates that the purported class consists of 3,000-6,000 members. (Renewed Motion at 11-12.)

         The Individual Defendants do not contest that Plaintiff satisfies the numerosity requirement of Rule 23(a)(1), and based on the number supplied by Plaintiff, the putative class clearly satisfies that standard.⁵ See, e.g., Bynum v. D.C., 214 F.R.D. 27, 32 (D.D.C.2003) (" Generally speaking, courts have found that a proposed class consisting of at least forty members will satisfy the impracticability requirement." (citation omitted)). See also Stewart v. Rubin, 948 F.Supp. 1077, 1088 (D.D.C.1996) (finding that a 245 member class spread throughout the United States satisfied numerosity), aff'd, 124 F.3d 1309 (D.C.Cir.1997). Plaintiff argues that the Individual Defendants' " concession on numerosity should be dispositve." (Plaintiff's Reply Memorandum in support of Class Certification (" Reply" ) [91] at 2.)

         Defendant District of Columbia, however, contests numerosity on grounds that Plaintiff has not presented evidence to establish a " reasonable basis for the estimate provided...." (District of Columbia Memorandum of Points and Authorities in Opposition to Plaintiff's Renewed Motion (" District of Columbia Opposition" ) [90] at 5.) See Feinman v. FBI, 269 F.R.D. 44, 49-50 (D.D.C.2010) (finding that the plaintiff's class size estimate of 200 lacked a reasonable basis); see also Bynum, 214 F.R.D. at 31 (" [P]laintiffs must at least be able to establish that the general outlines of the membership of the class are determinable at the outset of the litigation." (citations omitted)).

         Plaintiff indicates that his proposed class estimate is based on a review of a computer printout provided by the Individual Defendants (a Washington Humane Society record) that contains the names of thousands of individuals whose pets were seized during the relevant class period. In light of the fact that the Individual Defendants provided Plaintiff with records naming putative plaintiffs and conceded numerosity, the undersigned finds that Plaintiff's basis for the estimate provided was reasonable and further recommends a finding that Plaintiff has satisfied the numerosity prong of Fed.R.Civ.P. 23(a).

         2. Commonality

          The second prong of Rule 23(a) requires a showing of commonality, which is met " when there is at least one issue, the resolution of which will affect all or a significant number of the putative class members." Meijer, Inc. v. Warner Chilcott Holdings Co. III, Ltd., 246 F.R.D. 293, 300 (D.D.C.2007) (citing In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. 12, 26 (D.D.C.2001)) (quotation omitted). Not every issue of law or fact must be the same for each class member; rather, " if there is some aspect or feature of the claims which is common to all," the requirement is satisfied. Barnes v. District of Columbia, 242 F.R.D. 113, 121 (D.D.C.2007) (citing Pendleton v. Schlesinger, 73 F.R.D. 506, 508 (D.D.C.1977), aff'd, 628 F.2d 202 (D.C.Cir.1980)); see also In re Vitamins Antitrust Litig., 209 F.R.D. 251, 259 (D.D.C.2002) (Because the commonality requirement may be satisfied by a single common issue, courts have noted that it is " often easily met." )

         Plaintiff asserts that the common issue in this litigation is " whether various Defendants, in enforcing the prior Act, deprived Plaintiffs of ‘ personal and property interests without due process of law, in violation of the Fifth and Fourteenth Amendments of the Constitution,’ as well as their ‘ right to be free from unreasonable searches and seizures pursuant to the Fourth Amendment to the Constitution.’ " (Renewed Motion at 13, see Am. Compl. ¶ ¶ 71-74.) Plaintiff further explains that the Court's " resolution of the constitutionality of defendants' due process procedures for seizing pets and adjudicating their status will impact each individual whose pet was seized during the operative period." (Renewed Motion at 13.)           While the Individual Defendants do not challenge Plaintiff's assertion of commonality, Defendant District of Columbia argues that Plaintiff must provide a " greater degree of specificity" to demonstrate commonality. (District of Columbia Opposition at 6.) See Lightfoot v. District of Columbia, 273 F.R.D. 314, 325 (D.D.C.2011) (where plaintiffs' proffered " common issue" illustrated the principle that almost any set of claims demonstrates commonality " at a sufficient [ ][ ] level of generalization" (citing Love v. Johanns, 439 F.3d 723, 729 (D.C.Cir.2006) (quotation omitted))). See also Karvaly v. eBay, Inc., 245 F.R.D. 71, 81 (E.D.N.Y.2007) (" [T]he common issues must be expressed with a degree of particularity and specificity in order to satisfy this requirement, because ‘ at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality.’ " (citing Lewis Tree Serv., Inc. v. Lucent Techs. Inc., 211 F.R.D. 228, 232 (S.D.N.Y.2002) (quotation omitted))).⁶

         In Lightfoot, 273 F.R.D. 314, the Honorable Colleen Kollar-Kotelly granted a motion to decertify the class, in part because the plaintiffs [former employees], who brought a putative class action against the District to challenge policies and procedures applied to terminate, suspend and modify disability compensation benefits, failed to satisfy the commonality element even after nearly a decade of litigation.⁷ Plaintiffs therein broadly characterized their " common issue" as defendants' policy and practice of failing to provide members of the plaintiff class with due process prior to termination of disability compensation benefits and they failed to identify a particular policy or practice common to the class. 273 F.R.D. 314, 325-27.

         The court characterized plaintiffs' " common issue" as a " somewhat amorphous claim of systemic or widespread misconduct on the part of the defendant" and found " myriad fissures" within the class that raised " substantial questions" about satisfaction of commonality. 273 F.R.D. at 324. The court further noted that " [u]nder Plaintiffs' interpretation, certification would be appropriate wherever class members allege a harm with some connection to the Due Process Clause— no matter how disparate the class members' individual injuries may be and no matter their origins." 273 F.R.D. at 325.

          But see Lightfoot v. D.C., 246 F.R.D. 326, 337 (D.D.C.2007) (an earlier decision upholding class certification despite defendant's argument that plaintiffs could not demonstrate commonality because their " ‘ as-applied’ theory of the case require[d] a case-by-case review...." ) ⁸ The court found that commonality was satisfied and reaffirmed its prior observation that " all members of the class will be affected by the resolution of the constitutionality of the District of Columbia's disability benefits program, as it was applied during the class period." Id. at 338. The court noted that it had refrained from assessing the merits of the plaintiffs' claims in the context of its class certification analysis. Id. at 338, n. 9.

          See also Does I-III v. District of Columbia, 232 F.R.D. 18, 27 (D.D.C.2005) (finding the commonality requirement was satisfied where plaintiffs sought declaratory and injunctive relief challenging the defendant's policy and practice of giving consent to elective surgeries on behalf of plaintiffs and putative class members, without following the substituted judgment standard), rev'd in part on other grounds, Doe ex rel. Tarlow v. D.C., 489 F.3d 376 (D.C.Cir.2007); Bynum, supra. (satisfying commonality in a case seeking injunctive relief and monetary damages in connection with a challenge to D.C.'s policy of incarcerating putative class members after the time for their scheduled release from custody, even where the length of detention was not consistent.) In Bynum, Plaintiffs identified several questions satisfying commonality " including whether Defendant follow[ed] the practice of holding persons in its custody later than their scheduled release date, and whether this alleged practice violate[d] the Constitution." ⁹ Bynum, 214 F.R.D. at 34.

         At the February 15, 2011 hearing in the instant case, Plaintiff argued that while the seizures of animals may or may not have been justified and the conditions of release may have been fair or unfair, if there was no minimum due process, no taking was allowed and all putative plaintiffs are thus entitled to a refund of fees and expenses paid in connection with the seizure and disposition of their pets, which satisfies commonality. The undersigned rejects Plaintiff's argument that entitlement to a refund of monies paid satisfies " commonality[,]" in part because the Court previously rejected the suggestion that a favorable finding of facial unconstitutionality of the Act " would permit putative plaintiffs to proceed directly to the damages stage, thereby avoiding litigation of their as-applied claim." (05/02/10 Memorandum Opinion [77] at 20.) The Court further determined that " Plaintiffs' facial challenge to the Act has been rendered moot by the enactment of the 2008 Amendment, which Plaintiffs themselves agree has rectified any alleged due process violations in the Act." ( [77] at 19.)

         The Court noted however that " plaintiffs' as-applied challenge to the constitutionality of the Act ... remains extant at this time." ( Id. ) The Court further held that " to the extent Plaintiffs can demonstrate that the prior Act, as applied, resulted in a violation of their constitutional right to due process and that they were injured as a result of that constitutional violation, Plaintiffs are arguably entitled to compensatory damages." ( Id. at 19.) ¹⁰ The undersigned finds that the Court's rulings provide a basis for satisfaction of commonality that is similar to the basis in the earlier Lightfoot decision.¹¹ The undersigned also recognizes that the Individual Defendants have conceded commonality. The undersigned accordingly recommends a finding that Plaintiff has satisfied commonality under Rule 23(a)(2).

         3. Typicality

         The third prong of Rule 23(a) requires that Plaintiff demonstrate that " the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). " The typicality prerequisite is ‘ intended to assess whether the action can be efficiently maintained as a class, and whether the named plaintiffs have incentives that align with those of the absent class members, so as to assure that the absentees' interests will be fairly represented.’ " Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174, 177 (D.D.C.1999) (quoting Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 57 (3d Cir.1994)). " The commonality and typicality requirements of Rule 23(a) tend to merge." Falcon, 457 U.S. at 158, n. 13, 102 S.Ct. 2364. The focus of commonality however is the nature of the claims asserted on behalf of all members of the putative class, while typicality emphasizes whether the class representative suffered a similar injury from the same course of conduct. Bynum, 214 F.R.D. at 34.

          Plaintiff argues that the typicality requirement is satisfied " if each class member's claim arises from the same course of events that led to the claims of representative parties, and each class member makes similar legal arguments to prove the defendant's liability." Pigford v. Glickman, 182 F.R.D. 341, 349 (D.D.C.1998) (citing Casey, 43 F.3d at 57). Plaintiff asserts that his incentives are " sufficiently aligned with those of the absent class members, because all putative class members suffered the same injury— the unconstitutional seizure and final disposition of their pets without due process of the law." (Renewed Motion [77] at 14.) Plaintiff further contends that the same due process defects were experienced by all class members " because the former Act suffers from the same procedural flaw: the failure to provide pet owners with notice and an opportunity to be heard" and accordingly, the putative plaintiffs' legal arguments will be identical ( Id. )

         The Individual Defendants and the District of Columbia both contest that Plaintiff has satisfied the typicality element of Rule 23, but for different reasons. Defendant District of Columbia asserts that a finding of typicality cannot be supported on the mixed factual and legal claims in this case, and that such claims vary even among the three original class representatives, as " one [proposed representative] had her pet seized and merely detained, one had her pet seized and ‘ forcibly sterilized,’ while [another] had a pet seized and forced to go [for] ‘ unwanted cancer surgery.’ " (District of Columbia Opposition [90] at 7.) The District contends that typicality is not met by merely asserting that all the putative Plaintiffs suffered similar constitution violations. " [T]ypicality has been deemed lacking in cases ... claiming the violation of various constitutional rights, when the representative's claims have been deemed unique." (District of Columbia's Opposition at 7 (citing 5 Wright, Miller & Kane, FED.PRAC & PROC. § 1764 (3d ed.))).

         Plaintiff asserts however that he is contesting due process violations relating to both the seizure and disposition of his pet, which are " typical" of the claims asserted by the class as a whole. (Renewed Motion at 14.) While the conditions surrounding the seizure and disposition of Plaintiff's pet are admittedly unique to him as are the conditions surrounding the seizure and disposition of all putative class members' pets, Plaintiff does satisfy typicality generally insofar as he claims injuries similar to other putative class members, resulting from the same course of conduct [seizure and detention of his pet.]

         The Individual Defendants contend that typicality is not satisfied because the legal or factual position of the Plaintiff is " markedly different from that of other [putative class] members, even though common issues of law or fact are raised." (Individual Defendants' Opposition at 18 (citing Pendleton v. Rumsfeld, 628 F.2d 102, 105 (D.C.Cir.1980))). The Individual Defendants urge the court to look at " the representatives' position with respect to the defendants' conduct, and [to find that] where the representative parties are subject to unique defenses, their claim is not typical of the class." (Individual Defendants' Opposition at 18 (citing Kas. v. Fin. Gen. Bankshares, Inc., 105 F.R.D. 453, 461 (D.D.C.1985))). In this case, Mr. Jackson sought relief by filing a pro se civil complaint in the D.C. Superior Court to compel the transfer of his seized pet from the custody of the WHS to the medical office of his private veterinarian, and this is a " defense unique to him." ¹² (Individual Defendants' Opposition [89] at 18-19.) ¹³

          The Individual Defendants assert [and the District agrees] that Plaintiff's " unique circumstances" in having taken advantage of post-deprivation process and having claims against only some of the Defendants " make it impossible for him to prosecute the action for money damages on behalf of the entire class ... [and] would impair his ability as a representative." (Individual Defendants' Opposition at 19; see also District of Columbia Opposition at 8-9.) The District argues that " [i]f Mr. Jackson is precluded from proceeding, there are no class representatives, and hence, no class. (District of Columbia Opposition at 9); see Nelson v. Greenspan, 163 F.Supp.2d 12, 19 (D.D.C.2001) (because the single named representative plaintiff was barred from proceeding by a previous settlement agreement, the class-action count was dismissed for lack of standing.)

         In light of the fact that class representative Jackson sought relief in the D.C. Superior Court prior to disposition of his pet, and it appears that this is atypical for the members of the putative class, the undersigned recommends a finding that Plaintiff has not satisfied the Rule 23 typicality requirement since Jackson's legal defenses differ from the defenses of the class.

         4. Adequate Representation

         The final prong of Rule 23(a) requires that the class representatives must " fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). The Rule 23(a)(4) adequacy-of-representation requirement " tends to merge" with the commonality and typicality requirements of Rule 23(a) which " serve as guideposts" for determining whether a class action should be maintained and whether the class representative's claim and class claims are " so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Amchem, 521 U.S. at 625, n. 20, 117 S.Ct. 2231 (quoting Falcon, 457 U.S. at 157, n. 13, 102 S.Ct. 2364).

          " [A] class representative must be part of the class and ‘ possess the same interest and suffer the same injury’ as class members." East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977) (quotation omitted). The named Plaintiff must also demonstrate sufficient willingness, interest and ability to pursue claims on behalf of the class. See Hassine v. Jeffes, 846 F.2d 169, 179 (3rd Cir.1988). Plaintiff asserts that Mr. Jackson has " actively participated in this case during the seven years it has been pending" (Renewed Motion at 15.)

          To further satisfy the Rule 23(a)(4) adequacy requirement, " the [class] representatives must appear able to vigorously prosecute the interests of the class through qualified counsel." (Individual Defendants' Opposition at 20 (citing Bynum v. District of Columbia, 217 F.R.D. 43, 47 (D.D.C.2003))). See also Rule 23(g)(1)(A)(iv) (Among the considerations in appointing counsel are " the resources that counsel will commit to representing the class." ) The Court " must [additionally] assess whether the putative class counsel is qualified to prosecute the action...." (Renewed Motion at 15). See Twelve John Does v. District of Columbia, 117 F.3d 571, 575 (D.C.Cir.1997). Plaintiff asserts that class counsel has " vigorously and actively represented the plaintiff's interest in this case on behalf of Plaintiffs...." (Renewed Motion at 15.) Plaintiff further notes that his counsel is " committed to advancing whatever sums are necessary to litigate this case, including [ ] advancing the costs associated with notice [to] the absent class members." (Plaintiff's Reply [91] at 9.) In connection with the Reply, counsel provides a Declaration of Counsel (Reply [91], Exh. B), setting forth counsel's qualifications and experience and confirming that counsel's law firm will advance funds to further the litigation.

         The undersigned recommends a finding that Plaintiff has satisfied the requirements of Rule 23(a)(4) in light of the Plaintiff's involvement in this case and the Declaration provided by counsel as well as counsel's record of representation in this case.

         B. Fed.R.Civ.P. 23(b)(1 )

          Assuming arguendo that the Court finds that Plaintiff meets all four prerequisites set forth in Rule 23(a), Plaintiff must also satisfy the standards for maintaining a class action, as set forth in Rule 23(b). Plaintiff contends that a class action may be maintained under Rule 23(b)(1)(A) because prosecution of separate actions by individual members of the class would create a risk of " inconsistent or varying adjudications with respect to individual class members" and " incompatible standards of conduct for the party opposing the class[.]" Fed.R.Civ.P. 23(b)(1)(A). Alternatively, Plaintiff asserts that a class action could be certified pursuant to Rule 23(b)(1)(B) because adjudications of individual putative class members would be " dispositive of the interests of the other members" or " would impair or impede their ability to protect their interests." Fed.R.Civ.P. 23(b)(1)(B). See generally Guadamuz v. Ash, 368 F.Supp. 1233, 1235 (D.D.C.1973) (where a challenge to the government's application of a statute was certified under both 23(b)(1)(A) and 23(b)(1)(B)). The Individual Defendants argue that Plaintiff fails to demonstrate the applicability of the risks posed by Rule 23(b)(1)(A) or (B).¹⁴

         1. Fed.R.Civ.P. 23(b)(1)(A )

         Rule 23(b)(1)(A) requires Plaintiff to demonstrate that denial of a class action would result in inconsistent or varying adjudications that establish incompatible standards of conduct for the Defendants. Plaintiff asserts generally that the Court must examine the actions taken by Defendants after the seizures, and because both the Act and the 2008 Amendment are silent regarding post-seizure requirements, there is accordingly a " risk of varying adjudications regarding Defendants' post-seizure rights and duties and a risk [of] establishing incompatible standards of conduct for both the District and the individual WHS officers...." (Renewed Motion at 18-19.)

         Individual Defendants contend that because the [remaining] claims in this matter involve a request for monetary relief, as opposed to declaratory or injunctive relief, this action should not be certified as a class action under Rule 23(a)(1)(A). (Individual Defendants' Opposition at 11-12.) Compare Franklin v. Barry, 909 F.Supp. 21, 31 (D.D.C.1995) (in a case where plaintiffs sought equitable relief, the court noted that " [a] haunting specter of inconsistency, resulting in incompatible standards of conduct for prison officials, is raised by the threat of individual suits rather than a class action." )

         The undersigned finds that certification of a class in this case will not minimize the risk of " varying adjudications" because of the need to focus on individualized circumstances to determine whether post-seizure actions were warranted [resulting in individual adjudications]. The undersigned recommends denial of class certification pursuant to Rule 23(b)(1)(A) for the reasons that Plaintiff has not carried his burden in demonstrating that (b)(1)(A) is applicable to this case, and furthermore, this section is more appropriate when a class action seeks declaratory or injunctive relief, as opposed to monetary relief.

         2. Fed. R.Civ. P. 23(b)(1)(B )

         Rule 23(b)(1)(B) requires Plaintiff to demonstrate that denial of a class action will result in adjudications for individual class members that dispose of the interests of members who are not parties to the adjudication and impair their ability to protect their own interests. Plaintiff asserts that " Rule 23(b)(1)(B) has been found to be the appropriate mechanism to challenge government statutes under the " practical effect standard," because the Government unlike private litigants, is required to treat all class members alike." (Renewed Motion at 16 (citing Guadamuz v. Ash, 368 F.Supp. 1233, 1235 (D.D.C.1973) (class certification under Rule 23(b)(1)(B) is appropriate where a ruling on government's interpretation of statute would be dispositive of the rights and interests of members not party to the suit))).¹⁵ See also Larionoff v. United States, 533 F.2d 1167, 1181 n. 36 (D.C.Cir.1976), aff'd, 431 U.S. 864, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977) (" In deciding not to challenge the merits of the District Court's ruling, the Government apparently concludes that this case meets the practical effect standard of Rule 23(b)(1)(B) precisely because the Government, unlike private litigants, is required to treat all class members alike" (citations omitted)).

          Larionoff, supra, was a lawsuit filed by enlisted personnel in the United States Navy who alleged entitlement to receive " variable reenlistment bonuses" by contract or under the promissory estoppel doctrine. Larionoff involved the interpretation of regulations issued by the Department of Defense and the Department of the Navy. 533 F.2d at 1175. The appeal in Larionoff challenged the timing of the certification decision but not the District Court's decision with respect to Rule 23(b)(1)(B). 533 F.2d at 1181 n. 36.

         Plaintiff broadly relies upon Larionoff for the proposition that because this suit against the WHS and individual defendants in their official capacities is " actually a suit against the District of Columbia," the District is required to " treat all class members alike" which permits the Plaintiff to obtain class certification pursuant to Rule 23(b)(1)(B). (Renewed Motion at 17-18.) Individual Defendants concede that there is no dispute the Defendant District of Columbia " is obligated to treat equally all citizens when interpreting its government statutes" (Individual Defendants' Opposition at 10) but they distinguish Larionoff on grounds that " this is not a case about declaring duties going forward" but rather " [it] seeks retrospective relief in the form of money damages, in which— unlike Larionoff — highly individualized facts ... will be dispositive." (Individual Defendants' Opposition at 10-11.)

         Individual Defendants argue that class actions should be certified under Rule 23(b)(1)(B) only in a limited number of circumstances, primarily where plaintiffs would " compet[e] for scarce, or limited resources" as its purpose is to " preclud[e] an award of individual relief which would ignore the interests of other similarly situated parties." (Individual Defendants' Opposition at 9 (citing Moysey v. Andrus, 481 F.Supp. 850, 854 (D.D.C.1979))).¹⁶ This Rule has been used where the " shared character of rights claimed or relief awarded entails that any individual adjudication by a class member disposes of, or substantially affects, the interests of absent class members." Ortiz v. Fibreboard Corp., 527 U.S. 815, 834, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) The Rule is typically applied in cases involving " actions by shareholders to declare a dividend or otherwise to ‘ fix [their] rights' " or where there is " property which call[s] for a distribution or management." Id. (citations and quotation omitted).

         Plaintiff alleges that a determination on behalf of one putative class member regarding a violation of due process claim and/or the qualified immunity defense would substantially impair another putative class member's ability to bring a claim. (Renewed Motion at 17-18.) Individual Defendants argue however that the adjudication in this case would not be dispositive of the interests of others where, as here, the determinations of liability are highly individualized and " the only practical effect" could be " a stare decisis effect," which does not satisfy Rule 23(b)(1)(B). (Individual Defendants' Opposition at 16.) The undersigned agrees with the Individual Defendants' assessment that liability determinations will be based on individual circumstances, and thus, adjudication would not be dispositive of the interests of others or impair their right to bring an action. Accordingly, the undersigned recommends denial of class certification pursuant to Rule 23(b)(1)(B).

         C. Fed.R.Civ.P. 23(b)(3 )

         Fed.R.Civ.P. 23(b)(3) provides an alternative basis for class certification where questions of law or fact that are common to the members of the class predominate over any questions affecting only individual members and a class action is superior to other available methods for adjudicating the controversy. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); see also Thomas v. Albright, 139 F.3d 227, 234 (D.C.Cir.1998) (" The requirements of predominance and superiority in subsection (b)(3) are, of course, additional to the requirements of subsection (a), which applies to all class actions." ), cert. denied, 525 U.S. 1016, 119 S.Ct. 539, 142 L.Ed.2d 448 (1998).

         1. Predominance

          " Predominance is met ‘ when there exists generalized evidence which proves or disproves an element on a simultaneous, class-wide basis, since such proof obviates the need to examine each class members' individual position.’ " Meijer, Inc. v. Warner Chilcott Holdings Co. III, Ltd., 246 F.R.D. 293, 307 (D.D.C.2007) (quoting In re Vitamins Antitrust, 209 F.R.D. 251, 262 (D.D.C.2002)). Plaintiff asserts that common issues predominate in this case, in part because " [w]hether the challenged Act deprived Plaintiffs of their constitutionally protected rights— the liability issue in this case— is subject to generalized proof, because every seizure was made pursuant to the same statute." (Renewed Motion at 20.) Plaintiff's argument relies upon his principal contention that liability has been established by the failure of the Act to provide a method to challenge the seizure and detention of pets by means of notice and a hearing to contest the seizure. The undersigned notes that the Court previously rejected Plaintiff's contention that a favorable finding of facial unconstitutionality of the Act would permit the class to proceed directly to the damages stage.

         Defendant District of Columbia contends that the seizure of putative plaintiffs' pets by WHS is insufficient to demonstrate predominance. " Even if Rule 23(a)'s commonality requirement may be satisfied by [plaintiffs'] shared experience, the predominance criterion is far more demanding." (District of Columbia Opposition at 11 (citing Amchem, 521 U.S. at 623-24, 117 S.Ct. 2231)). Individual Defendants argue that the class certification pursuant to Rule 23(b)(3) is not appropriate in this case because individual questions regarding the alleged breach of constitutional and common law duties and similar inquiries relating to proximate cause analysis predominate over questions common to the proposed class. (Individual Defendants' Opposition at 13-14.) See generally Garcia v. Veneman, 211 F.R.D. 15, 24 (D.D.C.2002) (in denying class certification to farmers suing the USDA regarding loans where the loan applications would have to be evaluated to determine if denial was objective or discriminatory, the court noted that the proposed class action " would quickly devolve into hundreds or perhaps thousands of individual inquiries about each claimant's particular circumstances." )

         Individual Defendants further assert that a liability determination on the due process claim would require an examination of individual circumstances to see whether the detention was substantial enough to constitute a constitutional deprivation; whether the owner had notice of deprivation and procedural rights; and whether the owner exercised any recourse (such as Mr. Jackson's suit in D.C. Superior Court).

Plaintiff must also prove individualized elements to establish liability for conversion [; i.e.] [t]he Court would have to look at each impoundment and release separately to determine whether the owner suffered a sufficiently substantial deprivation of chattel and whether an Individual Defendant was in wrongful possession of an animal considering the circumstances surrounding its impoundment.

(Individual Defendants' Opposition at 16.) ¹⁷

         In this case, the Court has already found that to the extent putative plaintiffs seek compensatory damages for individual injuries sustained by application of the Act, they must litigate their " as-applied challenges." (May 2, 2010 Memorandum Opinion [77] at 19.) Defendant District of Columbia argues that the compensable damages sought by each plaintiff are, however, " unique to each individual victim, and will vary widely based on the value of the seized pet for breeding purposes, the alleged procedures performed by the WHS, the length of each pet's detention, the emotional " attachment" between the pet and owner, and a host of other factors." (District of Columbia Opposition at 14.) The undersigned agrees with that assessment.

          " If the calculation of the damage claims were a mechanical task the presence of individualized claims would not be a barrier to class certification. However, when ‘ computation of damages will require separate mini-trials, then the individualized damage determinations predominate over common issues and a class should not be certified.’ " Jane Does I-III, 2006 WL 2864483, at *3. See also Ward v. Dixie Nat'l Life Ins. Co., 595 F.3d 164, 180 (4th Cir.2010) (" [I]individualized damage determinations cut against class certification under Rule 23(b)(3)." (citing Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 342-43 (4th Cir.1998))).

         Plaintiff acknowledges that the damage determination is individualized but claims this does not affect predominance because the Court can bifurcate liability and damages; appoint a special master to preside over individual damages proceedings; decertify the class after the liability trial; create subclasses, or alter or amend the class. (Renewed Motion at 21 (citing Johnson v. District of Columbia, 248 F.R.D. 46, 57 (D.D.C.2008) (citation omitted))).

         Bifurcation does not solve Plaintiff's ‘ predominance’ argument because Defendant District of Columbia further notes that even if the putative plaintiffs could calculate damages on a class basis, they must still prove that each class member suffered injury because actual injury cannot be presumed and the defendants have the right to raise individual defenses. They conclude that proving actual injury as to each class member " necessarily involves individual questions that predominate over common ones." (District of Columbia Opposition at 16.) See Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 188, 191-92 (3d Cir.2001). See also Butt v. Allegheny Pepsi-Cola Bottling Co., 116 F.R.D. 486, 492 (E.D.Va.1987) (finding that although the suit involved allegations of a common antitrust violation, the " highly individualized" issues of injury and damage overwhelmed the common ones, thus defeating predominance.)

         The undersigned recommends a finding that Plaintiff has not met the Rule 23(b)(3) requirement for demonstrating predominance because the individual issues in this case relating to both liability (for example, the determination of breach of duties and deprivation) and damages predominate over issues common to the putative class.

         2. Superiority

         Rule 23(b)(3) not only requires the Plaintiff to demonstrate that common issues predominate but Plaintiff must also show that class certification is " superior" to other available methods of adjudication. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In making this determination, courts should consider the following factors: 1) the class members' interests in individually controlling the prosecution or defense of separate actions; 2) the extent and nature of any litigation concerning the controversy already started by or against class members; 3) the desirability vel non of concentrating litigation of the claims in a particular forum; 4) the likely difficulties in managing a class action. Rule 23(b)(3); Amchem, 521 U.S. at 616, 117 S.Ct. 2231.

         Plaintiff responds to these four factors in a cursory fashion by asserting that " the small potential recovery to each plaintiff reduces individual interest in controlling the prosecution of separate actions[; ]" there is no other pending litigation; forum considerations favor a class so all claims can be adjudicated here; and " [t]here are no foreseeable difficulties in managing this class action." (Renewed Motion at 22.)

         In challenging the superiority of a class action, Defendants rely on their arguments regarding the individualized nature of this case. Courts have recognized that " as the number of individual issues rises, the class action device becomes a less superior method for adjudication." Miller v. Hygrade Food Products Corp., 198 F.R.D. 638, 643 (E.D.Pa.2001) (citing Allison v. Citgo Petroleum Corp., 151 F.3d 402, 419 (5th Cir.1998)). See also Butt, 116 F.R.D. at 493 (because of the complexities of proving highly individual damages which cannot be proved by common evidence or computed with a mathematical formula, the class action becomes unmanageable and devolves into numerous mini-trials.) ¹⁸

          Defendants further assert that Plaintiff's responses to the factors set forth in Amchem are unsupported in fact. For example, Plaintiff conclusion that " [t]here are no foreseeable difficulties in managing this class action" is challenged by Defendant District of Columbia's assertion that " the issue of damages will likely require a lengthy inquiry defeating any pretense of ‘ predominance’ and presenting a formidable management issue [; ] [furthermore,] [not only do common issues not predominate, but class certification simply is not the ‘ superior’ way to handle this litigation." (District of Columbia Opposition at 16.)

         The undersigned finds that Plaintiff's cursory responses to the four Amchem factors do not support a finding that a class action in this case is superior to other methods of adjudication. Thus, the undersigned recommends a finding that Plaintiff has failed to satisfy the requirement of superiority pursuant to Rule 23(b)(3).

         IV. Recommendation

         In light of the fact that Plaintiff has not satisfied one of the four requirements set forth in Fed.R.Civ.P. 23(a), typicality, and further, that the Plaintiff has not demonstrated that a proposed class action may be maintained pursuant to Fed.R.Civ.P. 23(b)(1)(A) or (b)(1)(B), or that the requirements of predominance and superiority under Fed.R.Civ.P. 23(b)(3) have been met, the undersigned recommends denial of Plaintiff's Renewed Motion for Class Certification [87].

         V. Review by the District Court

         The parties are hereby advised that under the provisions of Local Rule 72.3(b) of the United States District Court for the District of Columbia, any party who objects to the Report and Recommendation must file a written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the report and/or recommendation to which objection is made, and the basis for such objections. The parties are further advised that failure to file timely objections to the findings and recommendations set forth in this report may waive their right of appeal from an order of the District Court that adopts such findings and recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

         DATED: May 26, 2011