Opinion
Case No. 6:20-cv-00906-MK
03-16-2021
ERIC T. JACKSON et al, Plaintiffs, v. GREGORY GILL et al, Defendants.
FINDINGS AND RECOMMENDATION
Kasubhai, United States Magistrate Judge:
Pro se Plaintiff Eric T. Jackson filed this putative class action against twenty-seven defendants associated with the City of Eugene, Oregon (the "City"), Lane County, Oregon (the "County"), and St. Vincent de Paul, Inc. ("St. Vincent"). Plaintiff alleges claims for breach of contract, collusion, and violations of the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution under 42 U.S.C. § 1983. Am. Compl., ECF No. 20. Plaintiff seeks injunctive relief, money damages, punitive damages, and "retrospective damages." Id. at 1. Before the Court are Plaintiff's motions to certify a class for a class action and a motion for a settlement conference. ECF Nos. 5, 6. For the reasons set forth below, Plaintiff's motions should be DENIED without prejudice.
FACTUAL BACKGROUND
The following facts are taken from Plaintiff's amended complaint ("AC") and are accepted as true for the purposes of the pending motions. See AC, ECF No. 20. At all relevant times, Plaintiff has lived in Eugene, Oregon. Id. at 1. On several occasions, Plaintiff has been ticketed and arrested by officers of the Eugene Police Department and convicted in Eugene Municipal Court for violations of the Eugene Municipal Code ("EMC") that prohibit trespassing, camping in public spaces, and engaging in prohibited activities in the City's "Downtown Activity Zone." Id. at 12-16; See EMC 4.806 (criminal trespass in the second degree by a guest); EMC 4.807 (criminal trespass in the second degree); EMC 4.815 (prohibited camping); EMC 4.872 (downtown activity zone - prohibited acts). Plaintiff has also been ticketed and arrested while participating in protests prompted by the Ninth Circuit's decision in Martin v. Boise. Id. at 7-10. Defendants seized and disposed of Plaintiff's personal property while in custody. Id. at 21. In March 2020, the City suspended its no camping rules and adopted the Centers for Disease Control ("CDC") guidelines for shelter-in-place for houseless communities, providing porta-potties and hand wash stations throughout the City, sanitary units at established camps, and free bus transportation. Id. at 9. In June 2020, the City entered "Phase 2" of Oregon's COVID-19 response and began reinforcing no camping rules. Id. Plaintiff filed this action on June 12th, 2020. ECF No. 1.
LEGAL STANDARD
Federal Rule of Civil Procedure 23 governs class certification. "The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (internal quotation marks omitted). A party seeking class certification must satisfy each of the four prerequisites of Fed. R. Civ. P. 23(a) and at least one requirement of the provisions of Fed. R. Civ. P. 23(b). After showing that each of the Fed. R. Civ. P. 23(a) prerequisites is satisfied, the party seeking class certification must then establish "through evidentiary proof at least one of the provisions of [Fed. R. Civ. P. 23(b)]" Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013).
Under Fed. R. Civ. P. 23(a), a district court may certify a class only if:
1. the class is so numerous that joinder of all members is impracticable;Fed. R. Civ. P. 23(a). In other words, the proposed class must satisfy the prerequisites of numerosity, commonality, typicality, and adequacy of representation. Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir. 2012). Fed. R. Civ. P. 23 sets forth more than a "mere pleading standard." Wal-Mart, 564 U.S. at 350. A party seeking class certification "has the burden of affirmatively demonstrating" that each requirement of Fed. R. Civ. P. 23(a) is satisfied. Mazza, 666 F.3d at 588. That is, the movant must be "prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Wal-Mart, 564 U.S. at 350 (emphasis in original).
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 will fairly and adequately protect the interests of the class.
DISCUSSION
I. Motion for Class Certification
Plaintiff filed both his motion to certify the class (ECF No. 5) and motion for settlement conference (ECF No. 6) on behalf of eleven other named Plaintiffs, but none of the remaining Plaintiffs have signed those documents. ECF Nos. 5, 6. Plaintiff asserts "each member lacks the ability and breadth of experience to prepare and file these documents and therefore, [Plaintiff] provide[s] on the behalf of those named with their permission." Mot. Cert. Class at 7, ECF No. 5.
While parties may plead and conduct their own cases personally in all courts of the United States, an individual appearing pro se may not represent other individuals. 28 U.S.C. § 1654 (2009); see also Johns v. Cty. Of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) ("[A] non-lawyer has no authority to appear as an attorney for other than himself.") (citations and internal quotations omitted). "It is well established that the privilege to represent oneself pro se provided by §1654 is personal to the litigant and does not extend to other parties or entities." Simon v. Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir. 2008). Furthermore, the representative of a class cannot appear pro se because a litigant cannot "fairly and adequately protect the interests of the class." Williams v. Boardman, No. 1:10-cv-00038-AWI-SMS PC, 2010 WL 367794 at *1 (E.D.Cal. Jan. 27, 2010) (quoting Fed. R. Civ. P. 23(a)(4)); see also Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000)); 7A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1769.1 & n. 12 (2d ed.1986) (citing cases for rule that "class representatives cannot appear pro se").
Because Plaintiff cannot appear pro se as the proposed class representative, the fourth element for adequacy of representation has not been met. Fed. R. Civ. P. 23(a)(4); Mazza, 666 F.3d at 588. Because the failure to satisfy the fourth element of Fed. R. Civ. P. 23(a) is dispositive, the Court declines to address the remaining conjunctive elements. Accordingly, Plaintiff's motion for class certification should be denied without prejudice.
II. Motion for Settlement Conference
Plaintiff also moves for an "early neutral evaluation settlement conference." Mot. at 2, ECF No. 6. Plaintiff asserts "[Early Neutral Evaluation] is not a Local Rule in Eugene, yet it was born in the Jurisdiction of the [Ninth] Circuit by our Friends in the California District Court" as a basis to "settle the case before the discovery phase ends." Id. The Court construes Plaintiff's motion as a request for a settlement judge under LR 16-4(e)(2) ("ADR Options—Request for a Settlement Judge"). Under LR 16-4(e)(2), "[t]he assigned judge, on his/her own motion or at the request of a party, may schedule a settlement conference before a judicial officer of this Court." The Court, in exercising its discretion to schedule a settlement conference, notes the case is in the initial pleading stages and Defendants have not filed responsive pleadings. It is far too premature for the Court to order a settlement conference. Plaintiff's motion for settlement conference should be denied without prejudice.
RECOMMENDATION
The Court finds that Plaintiff has not satisfied the necessary prerequisite elements of Fed. R. Civ. P. 23(a) to certify a class and recommends Plaintiff's motion (ECF No. 5) be DENIED without prejudice. The Court similarly finds that Plaintiff's Motion for Settlement Conference (ECF No. 6) should be DENIED without prejudice.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed. R. Civ. P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED this 16th day of March 2021.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI (He / Him)
United States Magistrate Judge