United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
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.
Burden of Proof and Standard of Review
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”) (quoting Comcast Corp.
v. Behrend, 569 U.S. 27, 33 (2013)).
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).
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.
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.
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.
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.
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.
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).
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
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.
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.
Rule 23(a) Requirements
Plaintiffs had made the threshold showing of ascertainability
of the proposed class, they would still have to prove ...