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Schonton v. MPA Granada Highlands LLC

United States District Court, D. Massachusetts

April 2, 2019

DANYELA SCHONTON, et al., Plaintiffs,
v.
MPA GRANADA HIGHLANDS LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         This is a putative class action in which the Plaintiffs, Brazilian tenants and tenant applicants, allege that Defendants MPA Granada Highlands LLC, Metropolitan Properties of America, Inc., Jeffrey J. Cohen, Marisa V. Cohen, Paula Nigro and Jacqueline Motta (collectively, “Defendants”) discriminated against them in violation of the Fair Housing Act, 42 U.S.C. § 3604 (Count I), the Civil Rights Act, 42 U.S.C. §§ 1981, 1982 (Count II) and Mass. Gen. L. c. 151B, § 4(6), (10) (Count III). All other counts of the amended complaint have been dismissed. D. 71. Plaintiffs have moved for class certification under Fed.R.Civ.P. 23(b)(2), (3). D. 109. For the reasons stated below, the Court DENIES the motion.

         II. Burden of Proof and Standard of Review

         A class action may be certified 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); see In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 18 (1st Cir. 2008). Where, as here, the putative class has moved to certify the class under Fed.R.Civ.P. 23(b)(3), D. 109 at 3, the Court must also determine whether “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed R. Civ. P. 23(b)(3); see New Motor Vehicles, 522 F.3d at 18. “[T]he district court must undertake a ‘rigorous analysis' to determine whether plaintiffs me[e]t the four threshold requirements of Rule 23(a) (numerosity, commonality, typicality, and adequacy of representation) and Rule 23(b)(3)'s two additional prerequisites.” In re Nexium Antitrust Litig., 777 F.3d 9, 17 (1st Cir. 2015) (“Nexium III”)[1] (quoting Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)).

         Plaintiffs also move for class certification under Rule 23(b)(2). D. 109 at 3. To certify the class under Rule 23(b)(2), the Court must determine whether Defendants have “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2); see New Motor Vehicles, 522 F.3d at 12 n.8. This form of class certification “ordinarily is used when broad, class-wide injunctive or declaratory relief is appropriate.” McKenna v. First Horizon Home Loan Corp., 475 F.3d 418, 427 (1st Cir. 2007). It “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Fed.R.Civ.P. 23(b)(2) advisory committee's note to 1966 amendment; see DeRosa v. Mass. Bay Commuter Rail Co., 694 F.Supp.2d 87, 95 (D. Mass. 2010). The plaintiffs bear the burden of showing that all the prerequisites for class certification have been met. Makuc v. Am. Honda Motor Co., Inc., 835 F.2d 389, 394 (1st Cir. 1987).

         III. Factual Background

         Plaintiffs are tenants and tenant applicants of Defendants' apartment complex, Granada Highlands (“Granada”), who allege discrimination based upon their Brazilian national origin between January 1, 2016 and the present. Defendant Granada is a complex of thirteen buildings and approximately nine hundred studio, one, two and three-bedroom apartments located on Kennedy Drive in Malden, Massachusetts. D. 46 ¶ 22. Defendant Metropolitan Properties of America, Inc. (“Metropolitan”) is the owner of Granada. Id. ¶ 23. Defendant Jeffrey J. Cohen is the Chief Executive Officer, President and sole director of Metropolitan. Id. ¶ 17. Defendants Marisa V. Cohen, Paula Nigro and Jacqueline Motta are employees, agents or servants of Metropolitan and/or Granada. Id. ¶¶ 18-20.

         Seven of the twelve Named Plaintiffs-Danyela Schonton, Sergio Luciano Schonton, Jehozadak Sanches Alves Pereira (“Pereira”), Missieli Mason Souza (“Mason Souza”), Jasson da Silva, Vinicios Jordao (“Jordao”) and Leonicio Geraldo Pimenta da Silva (“Leonicio da Silva”)- are current, Brazilian residents of Granada. Id. ¶¶ 4-6, 8-9, 14. Plaintiffs allege that Defendants have selectively applied “novel, variable, and contrived qualification requirements” for current Brazilian tenants that are not imposed on Caucasian Americans and have used the requirements “as pretext to deny renewal of annual leases, to impose short term tenancy at higher rents, and/or to order Brazilian tenants to vacate.” Id. ¶ 27. These alleged requirements included proof of citizenship or legal status, id. ¶ 42, multiple, specific forms of identification, id. ¶¶ 50, 69, and pet removal, id. ¶ 76.

         Three of the Named Plaintiffs-Ivonete Maximiano (“Maximiano”), Kwame Boadi Acheampong (“Boadi Acheampong”) and Luiz Silva (“Silva”)-are former Granada residents. Id. ¶¶ 7, 10, 13. Maximiano and Silva are from Brazil and Boadi Acheampong is from Ghana. Id. ¶¶ 7, 10, 13. Plaintiffs allege that similar discriminatory policies involving immigration status and identification were applied to these former residents as to the Plaintiffs who are current residents. Id. ¶¶ 59, 99.

         The remaining two Named Plaintiffs-Diane Souza Hugueney (“Hugueney”) and Marcelo Ricardo Souza (“Ricardo Souza”)-are Brazilian applicants for rental units at Granada. Id. ¶¶ 11, 12. Plaintiffs allege that Defendants have “refused to rent, refused to negotiate for rental, and otherwise made unavailable and denied rental housing” to these Plaintiffs. Id. ¶ 26. As to Hugueney, Plaintiffs allege that she was denied the opportunity to view an apartment at Granada when she arrived for an appointment after she told Granada staff that she and her family were Brazilian and that she cleans houses for a living. Id. ¶¶ 83-87. As to Ricardo Souza, Plaintiffs allege that he was denied an appointment to visit a rental unit at Granada because he was not a citizen and did not have a green card. Id. ¶ 90. Plaintiffs further allege that Ricardo Souza was quoted a higher rental rate in person at Granada than online for unexplained reasons. Id. ¶ 93. Finally, Plaintiffs allege that during a subsequent visit to Granada, Granada management told Ricardo Souza that he would not qualify to rent an apartment because he was an international student. Id. ¶ 94.

         IV. Procedural History

         Plaintiffs initiated this case on October 24, 2016, D. 1, and filed the operative, amended complaint on July 11, 2017. D. 46. Defendants moved to dismiss, D. 55, which the Court granted in part and denied in part, D. 71, leaving Counts I-III as the only remaining counts. Plaintiffs now have moved to certify the class. D. 109. The Court heard the parties on the pending motion and took the matter under advisement. D. 112.

         V. Discussion

         Plaintiffs move for certification of the proposed class, comprised of:

[A]ll persons subjected to discrimination on the basis of Brazilian national origin in the leasing of rental housing at the defendants' apartment complex, Granada Highlands, from January 1, 2016 to date - whether they were denied leases, denied renewal or subject to less favorable terms and conditions of occupancy compared to other tenants.

D. 109 at 1. To have the class certified, Plaintiffs must meet all the requirements under Rule 23(a) and under Rule 23(b)(1), (2) or (3). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).

         A. Ascertainability

         Before addressing the Rule 23(a) and (b) requirements, the Court must determine if the class is ascertainable. Although not explicitly mentioned in Rule 23, an implicit prerequisite to class certification is that a “class” exists-that is, it must be “administratively feasible to determine whether a particular individual is a member.” Kent v. SunAmerica Life Ins. Co., 190 F.R.D. 271, 278 (D. Mass. 2000) (citing 7C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1760, 581 (2d ed. 1972)). A class must be determinable by “stable and objective factors” at the outset of a case, id.; not every class member must be identified, but the class must be sufficiently ascertainable to permit a court to “decide and declare who will receive notice, who will share in any recovery, and who will be bound by the judgment.” Id. (citing Crosby v. Soc. Sec. Admin. of the U.S., 796 F.2d 576, 580 (1st Cir. 1986)). “A class definition that is based on non-specific matters, such as ‘wrongful conduct,' or subjective factors, such as ‘a reasonable time,' is not objectively ascertainable.” Carrier v. Am. Bankers Life Assur. Co. of Fla., Civ. No. 05-cv-430-JD, 2008 WL 312657, at *4 (D.N.H. Feb. 1, 2008) (citing Crosby, 796 F.2d at 580).

         Here, the Defendants argue that ascertainability is not met because the proposed class definition is an impermissible “fail safe” class. D. 111 at 2. A fail-safe class is one that is “defined in terms of the legal injury.” Nexium III, 777 F.3d at 22; see Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (explaining that a fail-safe class “is defined so that whether a person qualifies as a member depends on whether the person has a valid claim”). A fail-safe class makes it “virtually impossible for the Defendants to ever ‘win' the case, ” Nexium III, 777 F.3d at 22 n.19, because the class members either “win or, by virtue of losing, they are not in the class, and therefore, not bound by the judgment, ” Randleman v. Fidelity Nat'l Title Ins. Co., 646 F.3d 347, 352 (6th Cir. 2011). Accordingly, the First Circuit has held that it is “inappropriate[]” to certify a fail-safe class. Nexium III, 777 F.3d at 22.

         Plaintiffs' proposed class is a fail-safe class because membership presumes a valid legal claim-namely, suffering discrimination based on Brazilian national origin. Plaintiffs have also failed to identify objective criteria by which Plaintiffs may be deemed part of the class. The only way to determine class membership under Plaintiffs' proposed definition would be to conduct individualized inquiries about each putative class member to see if they suffered discrimination, and if so, whether it was based on Brazilian national origin. Accordingly, the Court concludes that Plaintiffs have failed to make the initial showing of ascertainability. Even if they had succeeded, however, they have also failed to satisfy Rule 23(a) and (b), as discussed below.

         B. Rule 23(a) Requirements

         Even if Plaintiffs had made the threshold showing of ascertainability of the proposed class, they would still have to prove ...


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