Opinion
Case No. CV 00-13002 DDP (SHx).
Motion filed on November 21, 2005 December 20, 2005
ORDER DENYING PLAINTIFFS' MOTION
This matter comes before the Court on the plaintiffs' motion for class notification. After reviewing the arguments, the Court denies the motion and adopts the following order.
I. Background
Roger Mortimer ("Mortimer"), Anthony Hart ("Hart"), Rodney Berry ("Berry"), and S.A. Thomas ("Thomas") bring this class action suit against Sheriff Leroy Baca ("Sheriff Baca") and members of the Los Angeles County Board of Supervisors. The class alleges that the Los Angeles Sheriff's Department ("LASD") over-detained them in violation of their constitutional rights.
Mortimer, Hart and Berry initially filed separate suits in the Central District of California. On May 2, 2005, the Court certified a class under Rule 23(b)(1) in the closely related caseBerry v. Baca, CV 01-02069 (DDP). See Fed.R.Civ.P. 23(b)(1). In that order, the Court defined the class as "the three named plaintiffs, the thirty-two Williams opt-outs who have live claims, the thirty-two post-2002 over-detainees who have not settled . . . and the unknown number of inmates who were over-detained for less than twenty-four hours." (See Order Granting Plaintiff's Motion for Class Certification, May 2, 2005 "May 2, 2005 Order" 12.)
Mortimer, Hart and Berry were previously involved in another over-detention class action suit brought against the County,Williams v. County of Los Angeles, No. 97-03826 CW (C.D. Cal. filed May 22, 1997). They, along with thirty-two other over-detainees, opted out of the Williams settlement. (See Berry v. Baca, 226 F.R.D. 398, 403 (C.D. Cal. 2005).
In determining the statute of limitations period for actions brought under § 1983, courts apply the period used by the forum state for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 273-75 (1985). The limitations period for personal injury actions in California is two years. Cal. C. Civ. P. § 335.1. The Court concluded that the limitations period began on November 23, 2002, two years before the plaintiff filed the original motion for class certification. (See May 2, 2005 Order 10.) The LASD had over-detained many individuals since November 2002. Defendant Sheriff Baca stated that, though the LASD settled claims with many of these individuals, thirty-two individuals did not settle. (Id.)
On May 25, 2005, the Court certified this class under Rule 23(b)(3). (See Order Granting In Part Motion for Certification of a Damages Class, May 25, 2005 "May 25, 2005 Order.") The Court further defined the class as "all LASD (Los Angeles Sheriff's Department) detainees who are not released within twelve hours of either (a) the expiration of the applicable sentence, or (b) a court-ordered release, and who have no outstanding releases, warrants or holds." (Id. 7.)
Accordingly, on August 11, 2005, plaintiffs Mortimer, Hart, Berry and Thomas filed a Third Amended Complaint in this case. The complaint contains the class allegations for both Rule 23(b)(1) and (3) class action categories. (See Third Amended Complaint ¶¶ 30-41.) The Third Amended Complaint also added members of the Los Angeles County Board of Supervisors as defendants. On September 1, 2005, Berry and Hart dismissed their separate suits because their over-detention claims are subsumed in this case. With this motion, the plaintiffs seek an order for class notification and submit a draft notice to the Court.
II. Legal Standard
Rule 23(c)(2)(B) states that for a class certified under Rule 23(b)(3):
the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must concisely and clearly state in plain, easily understood language:
• the nature of the action,
• the definition of the class certified,
• the class claims, issues, or defenses,
• that a class member may enter an appearance through counsel if the member so desires,
• that the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded, and
• the binding effect of a class judgment on class members under Rule 23(c)(3).
Generally, the plaintiffs prepare the notice for the court's review, giving the defendants an opportunity to object or suggest changes. Harriss v. Pan American World Airways, Inc., 74 F.R.D. 24, 52 (N.D. Cal. 1977); see also Wright Miller, Federal Practice and Procedure, § 1788 at 534 (2005). The court typically requires the plaintiffs to furnish the names and addresses of potential class members who are reasonably identifiable, and to bear the costs of providing notice. Eisen v. Carlisle Jacquelin, 417 U.S. 156, 179 (1974); Jones v. Diamond, 594 F.2d 997, 1023 (5th Cir. 1979).
The court may, however, exercise its discretion under Rule 23(d) and order the defendants to compile the list if the Court determines that the defendants can complete the task more efficiently. Fed.R.Civ.P. 23(d); Oppenheimer Fund, Inc v. Sanders, 437 U.S. 340, 356 (1978). Generally, the plaintiffs must bear the defendants' costs of compiling the list.Oppenheimer Fund, 437 U.S. at 359. The court may, however, order the defendants to bear the costs if it determines that "the expense involved [is] so insubstantial as not to warrant the effort required to calculate it and shift it to the representative plaintiff . . . [or] the task ordered is one that the defendant must perform in any event in the ordinary course of its business . . ." Id.
III. Discussion
A. Plaintiffs' Draft Notice Fails to Meet Requirements of Rule 23(c)(2)(B)
The Court agrees with the plaintiffs that it is appropriate to provide notice of this action to potential class members. The Court finds, however, that the plaintiffs' draft notice fails to meet the requirements of Rule 23(c)(2)(B).
1. Nature of the Action
The draft notice states that individuals over-detained in the Los Angeles County jails may be entitled to damages as a member of the class. (Mot. 4-5.) The notice to potential class members "should include some description of the nature of the suit and the issues being litigated so that each class member can make a rational judgment on whether to request exclusion from the action." Wright Miller, Federal Practice and Procedure, § 1787 at 512. The description in the draft notice fails to explain the class claims or why the individuals may be entitled to damages. Therefore, the Court finds that the notice does not adequately state the nature of the action. See Fed.R.Civ.P. 23(c)(2)(B).
2. Definition of Class
The plaintiffs argue that the Court has defined the class as "all those Los Angeles County jail detainees who may have been over-detained for period November 18, 2000 to date." (Mot. 3.) The defendants estimate that the five-year range proposed by the plaintiffs would require sending of the notice to over one million people. (Defs' Opp'n 6.) The defendants argue that it is premature to send out notice of the action because the Court has not fully defined the class. (Id. 3, 6.) The defendants also argue that providing notice to all detainees would be prohibitively expensive and wasteful. (Id. 3.)
The draft notice, however, states that the class includes those persons over-detained from December 11, 2000 to date. (Mot. 4.) It appears that this is an inadvertent error because the plaintiffs provide an explanation in their reply for using the November 18, 2000 date. (See Pls' Reply 5-6.)
On May 2, 2005, the Court defined the class as, inter alia, those individuals over-detained after November 23, 2002 who had not settled their claims with the Sheriff's Department. (See May 2, 2005 Order 12.) The Court based the date of class membership on the two-year statute of limitations period used by California for personal injury actions. See Cal. C. Civ. P. § 335.1; Wilson, 471 U.S. at 273-75.
As previously noted, the class also includes the thirty-twoWilliams opt-outs who have live claims and the unknown number of inmates who were over-detained for less than twenty-four hours. (See May 2, 2005 Order 12.)
Section 352.1 of the California Code of Civil Procedure tolls the two-year statute of limitations period for bringing a personal injury suit in actions for damages brought under § 1983. Specifically, the tolling provision applies to individuals who were imprisoned on a criminal charge at the time the cause of action accrued. Cal. C. Civ. P. § 352.1. Although state law determines the length of the limitations period, "federal law determines when a civil rights claim accrues." Morales v. City of Los Angeles, 214 F.3d 1151, 1153-54 (9th Cir. 2000). Under federal law, "a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action."Id. at 1154. Under § 352.1, the applicable limitations period does not commence until the prisoner is released from prison, but in no event is the statute tolled for more than two years. See Flahavan, Rea Kelly, Cal. Prac. Guide: Personal Injury
¶ 5:142 (The Rutter Group 2005).
The plaintiffs argue that, under § 352.1, the class includes inmates who were over-detained for periods prior to November 2002. (Pls' Reply 6.) The Court finds, however, that the tolling provision does not apply to this case. Under § 352.1, the limitations period for individuals who were over-detained prior to November 23, 2002 did not begin until they were released from prison. These individuals are in the class if they were released from prison after November 23, 2002. They are not in the class if they were released prior to that date.
On May 25, 2005, the Court also certified the class as a damages class under Rule 23(b)(3). (See May 25, 2005 Order.) The class closed in this case on the date of the second certification order. The Court notes that closing the class on May 25, 2005 promotes an efficient resolution of the case and ensures that as many class members as possible are given adequate, timely notice of the action.
The class is defined as "all LASD detainees who are not released within twelve hours of either (a) the expiration of the applicable sentence, or (b) a court-ordered release, and who have no outstanding releases, warrants or holds." (May 25, 2005 Order 7.) The dates of class membership are limited from November 23, 2002 to May 25, 2005. The notice should be provided to individuals who meet the class definition and fall within the dates of class membership.
3. Class Claims, Issues or Defenses
The draft notice does not explain to potential class members that they may make an appearance through counsel. (Mot. 5-6.)
4. Opt-Out Clause
The draft notice asks potential class members whether they wish to be members of the class. (Id.) This is an inadequate opt-out clause. The notice "should inform the recipient exactly how to express the desire to opt out, to whom it should be directed, and the date by which it must be received." Wright Miller, Federal Practice and Procedure, § 1787 at 521.
5. Binding Effect of Judgment
Finally, the draft notice fails to explain the binding effect of a judgment on class members. (Mot. 5-6.)
B. The Defendants Must Compile List of Potential Class Members and the Plaintiffs Must Bear Costs of Providing Notice
The plaintiffs argue that Sheriff Baca should provide notice to potential class members because he has the relevant data on those persons over-detained. (Mot. 7.) The Sheriff's Department has the ability to compile a list of individuals who meet the class definition in this case, as well a list of individuals who may not have been individually identified. Therefore, the Court finds that it is more efficient for the defendants to compile the list of potential class members. See Fed.R.Civ.P. 23(d);Oppenheimer Fund, 437 U.S. at 356.
The plaintiffs also maintain that Sheriff Baca should bear the costs of providing notice because "the costs of making the notifications easily will not exceed the contempt fines that could have been imposed on, but were not requested against, Baca for his overdetentions of class members." (Mot. 7.) Following the plaintiffs' logic, defendants in any class action would have to bear the costs of providing notice. The Court may only shift the costs of providing notice to the defendants in exceptional circumstances. See Eisen, 417 U.S. at 179; Schwarzer, Tashima Wagstaffe, Cal. Prac. Guide, Fed. Civ. Pro. Before Trial 10:673 (The Rutter Group, 2005). The plaintiffs offer no evidence that there are exceptional circumstances in this case.
The plaintiffs must also bear the defendants' costs for compiling the list of potential class members. The Court finds no evidence that the cost of performing the task is unsubstantial or that the task is part of the defendants' ordinary course of business. See Oppenheimer Fund, 437 U.S. at 359.
C. The Parties Must Meet and Confer Regarding Notice
The Court orders the Sheriff's Department to provide the plaintiffs with a list of individuals who meet the class definition in this case and include the individuals' addresses. The Court orders the parties to meet and confer for the purposes of: (1) preparing the jointly proposed notice, and (2) agreeing on and proposing the appropriate method by which notice to the class should be given, including potential class members who may not have been individually identified. The Court is not suggesting that the notice be individual notice to each inmate of the entire inmate population. Further, the Court orders the Sheriff's Department to provide the plaintiffs with a statement of the expenses of compiling the list of potential class members with a breakdown thereof.
III. Conclusion
Based on the foregoing reasons, the Court denies the motion.
IT IS SO ORDERED.