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Murphy v. Piper

United States District Court, D. Minnesota

September 29, 2017

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.

          Joseph 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.

          Janine Wetzel Kimble, Scott H. Ikeda, Assistant Attorneys General, Minnesota Attorney General's Office, counsel for Defendant.




         This 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.


         The 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.[1] 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 needed, below.

         Currently 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.


         I. Standard for Class Certification Under Rule 23

         “A 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 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). 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)).

         District 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.

         Plaintiffs 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'[2] lack of standardized conduct in planning, administering, and operating their Waiver service system.” (Doc. No. 51 at 2.)

         Defendant 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).

         The Court considers each of the requirements for class certification in light of the parties' arguments, below.

         II. Rule 23(a)

         A. Numerosity

         First, 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 (D.N.H. 2013).

         The 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).

         Plaintiffs 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).[3] 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.)

         Defendant 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.)

         In 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.

         First, 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.

         To 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 ...

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