United States District Court, D. Minnesota
Tenner Murphy, by his guardians Kay and Richard Murphy; Marrie Bottelson; Dionne Swanson; and on behalf of others similarly situated, Plaintiffs,
Emily Johnson Piper in her capacity as Commissioner of The Minnesota Department of Human Services, Defendant.
W. Anthony, Esq., Peter McElligott, Esq., and Steven M.
Pincus, Esq., Anthony Ostlund Baer & Louwagie PA; Justin
H. Perl, Esq., Mid-Minnesota Legal Aid; and Sean B. Burke,
Esq., Mid-Minnesota Legal Aid, Minnesota Disability Law
Center, counsel for Plaintiffs.
Wetzel Kimble, Scott H. Ikeda, Assistant Attorneys General,
Minnesota Attorney General's Office, counsel for
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE
matter is before the Court upon Plaintiffs' motion for
class certification pursuant to Federal Rule of Civil
Procedure 23(b)(2). (Doc. No. 35.) Defendant opposes the
motion. (Doc. No. 45.) After considering the submissions of
the parties, and for the reasons stated, the Court finds that
certification of the proposed class is appropriate. Thus,
Plaintiffs' Motion for Class Certification is granted.
Court previously detailed the background facts of this case
in its May 18, 2017 Memorandum Opinion and Order, (Doc. No.
54), and the Court only briefly summarizes the facts
here. In short, Plaintiffs are individuals with
disabilities and Medicaid recipients who receive Home and
Community Based Disability Waivers (“Disability
Waivers”) from the State of Minnesota under the
direction of Defendant Emily Johnson Piper
(“Defendant”), Commissioner of the Minnesota
Department of Human Services (“DHS”). Plaintiffs
reside in Community Residential Setting (“CRS”)
facilities-otherwise known as corporate adult foster care-and
wish to access various individualized housing services
available under the Disability Waivers to pursue more
integrated housing options. Plaintiffs assert that their
current living situations isolate and segregate them from
their communities in violation of federal law. To access the
services they seek in a timely manner and with proper due
process, Plaintiffs seek declaratory and injunctive relief to
reform Defendant's administration of the Disability
Waiver programs. The Court supplements the relevant facts as
before the Court is Plaintiffs' motion to certify a class
of: “[I]ndividuals age 18 and older who are eligible
for and have received a Disability Waiver, live in a licensed
Community Residential Setting, and have not been given the
choice and opportunity to reside in the most integrated
residential setting appropriate to their needs.” (Doc.
No. 37 at 2.) Tenner Murphy (“Murphy”), Marrie
Bottelson (“Bottelson”), and Dionne Swanson
(“Swanson”) (collectively, the “Named
Plaintiffs”) assert their claims on behalf of
themselves and other similarly situated individuals
(collectively, the “Plaintiffs”) and seek to
represent the proposed class.
Standard for Class Certification Under Rule 23
class action serves to conserve the resources of the court
and the parties by permitting an issue that may affect every
class member to be litigated in an economical fashion.”
Ebert v. Gen. Mills, Inc., 823 F.3d 472, 477 (8th
Cir. 2016). To obtain class certification, a party must first
meet the requirements of Rule 23(a) by establishing that:
(1) the class is so numerous that joinder of all members is
(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). In addition, plaintiffs seeking
certification “must satisfy one of the three
subsections of Rule 23(b).” Ebert, 823 F.3d at
477 (quoting In re St. Jude Med., Inc., 425
F.3d 1116, 1119 (8th Cir. 2005)). The burden is on the
plaintiffs to “show that the class should be
certified and that the requirements of Rule 23 are
met.” Id. (quoting Luiken v. Domino's
Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013)).
courts retain “broad discretion” in determining
whether to certify a class. Id. (citation omitted).
However, the court must conduct a “rigorous
analysis” to ensure “that the prerequisites of
Rule 23(a) have been satisfied.” Comcast Corp. v.
Behrend, 569 U.S. 27, 33 (2013) (citation omitted);
see also In re Target Corp. Customer Data Sec. Breach
Litig., 847 F.3d 608, 612 (8th Cir. 2017),
amended, 855 F.3d 913 (8th Cir. 2017). “The
class determination generally involves considerations that
are enmeshed in the factual and legal issues comprising the
plaintiff's cause of action.” IBEW Local 98
Pension Fund v. Best Buy Co., 818 F.3d 775, 783 (8th
Cir. 2016) (quoting Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 351 (2011)). The Eighth Circuit has noted that
“class certification is not the time to address the
merits of the parties' claims and defenses.”
Elizabeth M. v. Montenez, 458 F.3d 779, 786 (8th
Cir. 2006). However, “the ‘rigorous analysis'
under Rule 23 must involve consideration of what the parties
must prove.” Id.
argue that this case is particularly suited to Classwide
resolution because it asserts an integration mandate claim
under the Americans with Disabilities Act (“ADA”)
and the Supreme Court's landmark decision in Olmstead
v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). Plaintiffs
explain that “Olmstead claims are well suited
for class treatment because, among other issues, a
state's fundamental alteration defense necessarily
involves inquiries into the needs of all persons served by
the state's supportive services system.” (Doc. No.
37 at 12-13.) Emphasizing the systemic nature of their
claims, Plaintiffs assert that “[t]his case . . .
attacks the Defendants' lack of standardized conduct in
planning, administering, and operating their Waiver service
system.” (Doc. No. 51 at 2.)
identifies four key issues with Plaintiffs' motion for
class certification: (1) the Court cannot evaluate numerosity
based on Plaintiffs' vague proposed class; (2) individual
determinations prevent commonality among the proposed class;
(3) the Named Plaintiffs do not have injuries typical of the
class; and (4) Plaintiffs seek remedies that would be
improper under Rule 23(b).
Court considers each of the requirements for class
certification in light of the parties' arguments, below.
the proponent of class certification must prove that
“the class is so numerous that joinder of all members
is impracticable.” Fed.R.Civ.P. 23(a)(1). Regarding
numerosity, “[n]o arbitrary rules regarding the
necessary size of classes have been established.”
Paxton v. Union Nat'l Bank of Little Rock, 688
F.2d 552, 559 (8th Cir. 1982). In general, however, “a
class of 40 or more members raises a presumption of
impracticability of joinder based on numbers alone.”
William B. Rubenstein, Newberg on Class Actions
§ 3:12 (5th ed. 2017 Update). With respect to the
practicability of joinder, relevant factors include not only
“the size of the class, ” but “also . . .
the nature of the action, the size of the individual claims,
the inconvenience of trying individual suits, and any other
factor relevant to the practicability of joining all the
putative class members.” Paxton, 688 F.2d at
559-60. A court may also take into account factors such as
“the asserted disabilities of proposed class members,
and geographic diversity.” See Kenneth R. ex rel.
Tri-Cty. CAP, Inc./GS v. Hassan, 293 F.R.D. 254, 265
Eighth Circuit does not impose a separate ascertainability
requirement for class certification but “adheres to a
rigorous analysis of the Rule 23 requirements, which includes
that a class must be adequately defined and clearly
ascertainable.” Sandusky Wellness Ctr., LLC v.
Medtox Sci., Inc., 821 F.3d 992, 996 (8th Cir. 2016)
(quotation marks omitted). “A class may be
ascertainable when its members may be identified by reference
to objective criteria.” McKeage v. TMBC, LLC,
847 F.3d 992, 998 (8th Cir. 2017). Other Courts of Appeal
have determined that ascertainability is not required in the
context of a Rule 23(b)(2) class seeking declaratory and
injunctive relief. See, e.g., Shelton v.
Bledsoe, 775 F.3d 554, 562-63 (3d Cir. 2015). Even in
this Circuit, one court recently noted in evaluating a Rule
23(b)(2) class that “Plaintiffs are not required to
specify an exact number or to prove the identity of each
class member, rather, the plaintiffs must only show a
reasonable estimate of the number of class members.”
Postawko v. Mo. Dep't of Corr., Civ. No.
2:16-cv-04219-NKL, 2017 WL 3185155, at *6, 12 (W.D. Mo. July
26, 2017), appeal filed, No. 17-3029 (8th Cir. Sept.
19, 2017) (quotation marks and citation omitted).
assert that approximately 13, 800 individuals receiving
Disability Waivers live in corporate foster care facilities
in Minnesota. Acknowledging that not all of these individuals
would fit within the proposed Class, Plaintiffs contend that
Defendant's own actions “make it difficult to
identify the precise number of potential Class Members and
the full scope of unnecessary segregation of persons in
corporate foster care facilities.” (Doc. No. 37 at
13-14.) However, Plaintiffs point to a 2016 DHS Lead Agency
Review of Hennepin County which Plaintiffs suggest
illustrates that approximately five percent of DD waiver
recipients living in CRS facilities in the county “may
be better served in more individualized housing
options.” (Id. at 14.) Thus, Plaintiffs
estimate that the proposed Class would be made up of
approximately 690 individuals (5% of 13, 800). Plaintiffs
emphasize that they need not identify an exact number of
Class Members and suggest that a class may be made up of as
few as twenty individuals. Plaintiffs also assert that
“the class is characterized by size, geographic
diversity, and disabling limitations that make joinder of all
member impracticable.” (Id. at 15.)
argues that “the proposed class members are not
ascertainable.” (Doc. No. 45 at 10.) Specifically,
Defendant identifies a number of questions that would be
necessary for Plaintiffs to answer to evaluate whether an
individual is a member of the class and suggests that
Plaintiffs have offered no support to the Court to answer
these questions. For example, such questions include
“Does the person live in a CRS?” and “Does
the person want to live in a place other than a CRS?”
Defendant also suggests that ascertaining the Class would
require determining whether a CRS is the most integrated
setting for each person's needs, whether he or she could
afford another setting, and how long each person has waited
for services. Regarding Plaintiffs' proposed class size,
Defendant argues that Plaintiffs mischaracterize the DHS
report that they use to support their class estimate.
Defendant asserts that “Plaintiffs may not rely on mere
speculation about the size of the proposed class” and
suggest that they “must at least provide a reasonable
estimate.” (Id. at 14-15.)
response, Plaintiffs argue that ascertainability is merely an
implied judicial requirement that applies with much less
force in a Rule 23(b)(2) class. Even if the Court considers
ascertainability, Plaintiffs suggest, the proposed Class
would meet this requirement. Specifically, Plaintiffs
emphasize that their proposed Class can be ascertained by
objective criteria based on two components: (1)
“persons who are 18 and older and eligible for and
receiving a Waiver and live in corporate foster care, ”
and (2) “persons who want the choice and
opportunity to live in the most integrated setting
appropriate to their needs.” (Doc. No. 51 at 7.) The
answers to these questions, Plaintiffs argue, could be
determined based on objective data available in Waiver
program records. With regard to numerosity, Plaintiffs also
contend that their proposed Class would meet the numerosity
requirement even if Plaintiffs relied on the figures in the
DHS report that Defendant claims is relevant.
the Court considers the size of the proposed class.
Plaintiffs cite their Amended Complaint for the proposition
that 13, 800 Disability Waiver recipients are served in CRS
facilities in the state. (See Doc. No. 37 at 13
(citing Doc. No. 33 (“Am. Compl.”) ¶ 65).)
In her Answer, Defendant provides updated figures
“affirmatively stat[ing] that as of May 22, 2017, there
are approximately 3, 598 corporate foster care licenses,
” and that “[t]hese facilities are licensed to
serve up to a capacity of approximately 13, 500 Disability
Waiver recipients.” (Doc. No. 55 (“Answer”)
¶ 65.) The Court will rely on the updated figures to
support that there are approximately 13, 500 individuals
residing in CRS facilities throughout the State.
narrow this large group of individuals to those who would
fall within the proposed class of individuals who “have
not been given the choice and opportunity to reside in the
most integrated residential setting appropriate to their
needs, ” Plaintiffs direct the Court to a March 2016
DHS Lead Agency Review report for Hennepin County. (Doc. No.
38 (“Burke Aff.”) ¶ 6, Ex. 5.) This report
states that 93.7% of individuals on the Developmental
Disabilities (“DD”) Waiver in Hennepin County
qualified as having “high needs” in 2014.
(Id. at 5-6.) The report also identifies a total of
3, 175 DD ...