United States District Court, W.D. Virginia, Harrisonburg Division
JOANNE HARRIS, et al., on behalf of themselves and all others similarly situated, Plaintiffs,
JANET M. RAINEY, et al., Defendants.
MICHAEL F. URBANSKI, District Judge.
Plaintiffs Joanne Harris, Jessica Duff, Christy Berghoff, and Victoria Kidd brought this suit challenging Virginia's refusal to allow same-sex marriages and its refusal to recognize same-sex marriages performed by sister states. Defendants are Janet M. Rainey, in her official capacity as the State Registrar of Vital Records, and Thomas E. Roberts, in his official capacity as the Staunton Circuit Court Clerk. This matter is currently before the court on the plaintiffs' Motion to Certify Class, (Dkt. No. 26), and Motion to Amend Class Definition. (Dkt. No. 79). The court heard argument on the class certification motion on October 29, 2013, and the issue has been extensively briefed by the parties. The question of certification is thus ripe for adjudication.
Plaintiffs seek to certify this case as a class action pursuant to Federal Rule of Civil Procedure 23. Plaintiffs originally proposed two subclasses, one representing unmarried same-sex couples who wish to wed in Virginia and one representing same-sex couples legally wed out of state who wish to have their marriages recognized by Virginia. See Br. in Supp. re Mot. to Certify Class, Dkt. No. 27, at 4. Plaintiffs have now moved to amend the proposed class definition to the following:
(1) all same-sex couples in Virginia who have not married in another jurisdiction.
(2) all same-sex couples in Virginia who have married in another jurisdiction.
Mot. to Amend Class Definition, Dkt. No. 79, at 1. The court must therefore consider: (1) whether class certification is appropriate under the facts of the case, and (2) whether leave to amend the proposed class definition is warranted. Because the amended proposed class definition meets the requirements of Rule 23(a) and Rule 23(b)(2), the court will grant the plaintiffs' motions and certify the class. The court will exclude from the class any person who is a plaintiff in the pending case of Bostic v. McDonnell, 2:13cv00395 (E.D. Va. filed Sept. 18, 2013).
The court is required to conduct a "rigorous analysis" to ensure that a proposed class action complies with the requirements set forth in Rule 23. Thorn v. Jefferson-Pilot Life Ins. Co. , 445 F.3d 311, 318 (4th Cir. 2006) (citations omitted). "To be certified, a proposed class must satisfy Rule 23(a) and one of the three sub-parts of Rule 23(b)." Id.
I. Rule 23(a).
All class actions must, as an initial matter, satisfy the four requirements of Rule 23(a): (1) numerosity of parties, (2) commonality of factual or legal issues, (3) typicality of claims and defenses of class representatives, and (4) adequacy of representation. Thorn , 445 F.3d at 318 (citations omitted); Fed.R.Civ.P. 23(a). The court must examine each of these factors to ensure compliance with Rule 23(a).
For a class to meet the first requirement of Rule 23(a), it must be "so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). "No bright line test exists for determining numerosity and the determination rests on the court's practical judgment in light of the particular facts of the case." Savani v. Wash. Safety Mgmt. Solutions, LLC, No. 1:06-CV-02805-MBS, 2012 WL 3757239, at *2 (D.S.C. Aug. 28, 2012) (citing Lott v. Westinghouse Savannah River Co., Inc. , 200 F.R.D. 539, 550 (D.S.C. 2000)). Additionally, it is not required that the exact size of a class be established. Indeed, "where general knowledge and common sense would indicate that it is large, the numerosity requirement is satisfied." Mitchell-Tracey v. United Gen. Title Ins. Co. , 237 F.R.D. 551, 556 (D. Md. 2006) (citing 6 Alba Conte & Herbert Newberg, Newberg on Class Actions, § 3:3 (4th ed. 2006)); see also Haywood v. Barnes , 109 F.R.D. 568, 576-77 (E.D. N.C. 1986) (detailing the level of precision required for numerosity to be established). "Plaintiff[s] need only make a reasonable estimate of the number of class members." Wiseman v. First Citizens Bank & Trust Co. , 212 F.R.D. 482, 486 (W.D. N.C. 2003); see also Fitzgerald v. Schweiker , 538 F.Supp. 992, 1000 (D. Md. 1982) ("Plaintiffs' good faith estimate of the size of the class clearly is sufficient to establish numerosity.").
Plaintiffs here ground their good faith estimate on the 2010 United States Census, which reported over 15, 000 same-sex households in the Commonwealth. Br. in Supp. re Mot. to Certify Class, Dkt. No. 27, at 5. While defendants question the reliability of the census data cited by plaintiffs, there can be little doubt that the numerosity requirement is satisfied. Defendants' argument is akin to the one rejected by the court in Thomas v. Louisiana-Pacific Corp., 246 F.R.D. 505 (D.S.C. 2007). "Although Defendants contest numerosity, Defendants in substance simply argue Plaintiffs' estimate is incorrect. Even assuming the accuracy of Defendants' estimates, the numerosity requirement is satisfied[.]" Id . at 509. The same is true in this case. Even if the census data is off by an order of magnitude, the numerosity requirement is plainly met. See, e.g., Gunnells v. Healthplan Servs., Inc. , 348 F.3d 417, 425 (4th Cir. 2003) (noting with approval the district court's observation that "1400 employees plus their families" "easily" satisfied Rule 23(a)(1)'s numerosity requirement). Recent experience in Utah makes this point clear. In an article posted on January 8, 2014, CNN reported that "[o]fficials say more than a thousand marriage licenses between gay and lesbian couples were issued in the 17 days between the initial ruling and the high court's Monday order blocking enforcement." Bill Mears, Utah Will Not Recognize Same-Sex Marriages Performed Before High Court Stay, CNN Political Ticker (Jan. 8, 2014, 1:17 PM), http://politica/ticker.blogs.cnn.com/2014/01/08/utah-will-not-recognize-same-sex-marriages-performed-before-high-court-stay/. The 2010 census data, coupled with the actual experience in Utah, amply supports the conclusion that the number of same-sex couples in Virginia seeking to be married under the laws of the Commonwealth far exceeds any number which would be practical for joinder. Plaintiffs' good faith estimate meets the numerosity requirement.
Commonality requires the presence of questions of law or fact common to the class, Fed.R.Civ.P. 23(a)(2), such that "classwide resolution" can be provided "in one stroke." Wal-Mart Stores, Inc. v. Dukes , 131 S.Ct. 2541, 2551 (2011). It is clear that here, whatever factual nuances may exist among putative class members, the legal relief sought is the same: a declaratory judgment striking down Virginia's laws banning same-sex marriage and a permanent injunction barring their enforcement. No other relief is sought. Such relief rests on identical questions of law and would clearly resolve the claims "classwide" and in "one stroke." The arguments raised by defendants against commonality are really arguments about the ascertainability of the proposed class. See Br. in Opp'n re Mot. to Certify Class, Dkt. No. 30, at 4 (arguing that commonality does not exists because the proposed class is "defined in individualized, subjective terms"). Moreover, this argument is sidestepped by the amended class definition. As such, the court finds that the commonality requirement is met.
Typicality requires that "the claims or defenses of the representative parties [be] typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). "The essence of the typicality requirement is captured by the notion that as goes the claim of the named plaintiff, so go the claims of the class.'" Deiter v. Microsoft Corp. , 436 F.3d 461, 466 (4th Cir. 2006) (citing Broussard v. Meineke Disc. Muffler Shops, Inc. , 155 F.3d 331, 340 (4th Cir. 1998)). Thus, in pursuing their own case, the representative parties "must simultaneously tend to advance the interests of the absent class members." Id . The typicality requirement tends to merge with that of commonality. Id . (citing Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 626, n.20 (1997) and Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 157 n.13 (1982)). Here, the plaintiffs meet the typicality requirement for the same reason that they meet the commonality requirement - the relief sought would benefit all class members in an identical manner.
D. Adequacy of Representation.
Finally, adequacy of representation requires that "the representative parties will fairly and adequately protect the interests of the class." Fed R. Civ. P. 23(a)(4). "The adequacy inquiry... serves to uncover conflicts of interest between named parties and the class they seek to represent." Monroe v. City of Charlottesville, No. CIV. 3:05CV00074, 2007 WL 2461746, at *2 (W.D. Va. Aug. 27, 2007) (quoting Amchem Prods. , 521 U.S. at 625), aff'd sub nom., Monroe v. City of Charlottesville, Va. , 579 F.3d 380 (4th Cir. 2009). This inquiry also tends to merge with the preceding inquiries into commonality and typicality. Id . (citing Amchem Prods. , 521 U.S. at 626 n.20). A conflict must be fundamental to defeat adequacy of representation; a conflict is not fundamental when all class members "share common objectives and the same factual and legal positions and have the same interest in establishing the liability of defendants." Ward v. Dixie Nat. Life Ins. Co. , 595 F.3d 164, 180 (4th Cir. 2010) (internal alterations omitted) (quoting Gunnells v. Healthplan Servs., Inc. , 348 F.3d 417, 431 (4th Cir. 2003)); see also Amchem Prods. , 521 U.S. at 625 (quoting E. Tex. Motor Freight Sys. Inc. v. Rodriguez , 431 U.S. 395, 403 (1977)) ("A class representative must be part of the class and possess the same interest and suffer the ...