United States District Court, W.D. Washington, Seattle
ORDER DENYING PLAINTIFFS' MOTION FOR CLASS
CERTIFICATION AND DENYING PLAINTIFFS' MOTION FOR
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion for
Class Certification (Dkt. #2) and Plaintiffs' Motion for
Preliminary Injunction (Dkt. #93). Oral argument on this
matter was heard on September 7, 2017. Having considered the
parties' oral and written arguments, along with the
remainder of the record, the Court, for the reasons stated
herein, DENIES Plaintiffs' motions.
suit stems from Defendant City of Seattle's (the
“City”), Defendant Washington State Department of
Transportation's (“WSDOT”), and Defendant
Roger Millar's (collectively “Defendants”)
enforcement of rules and guidelines that authorize the
removal of unauthorized encampments from City-owned and
Washington State-owned property. See Dkt. #87
¶¶ 3, 5, 14-31, 90-96. In 2008, the City enacted
rules, the Multi-Departmental Administrative Rules 08-01
(“MDAR 08-01”), to establish, in part, standard
procedures for the removal of unauthorized encampments,
camping equipment, and personal property left on City-owned
property. See id. ¶ 97; also Dkt. #33,
Ex. A at 8. That same year, WSDOT also adopted guidelines,
entitled WSDOT's Guidelines to Address Illegal
Encampments within State Right of Way (“WSDOT
Guidelines”), establishing similar removal procedures
for unauthorized encampments. See Dkts. #87 ¶
97 and #33, Ex. B.
this suit was filed on January 19, 2017, the MDAR 08-01 were
still in effect. See Dkt. #33, Ex. A. At the time,
Plaintiffs' putative class action alleged the MDAR 08-01
and WSDOT Guidelines were unconstitutional on their face, and
as applied, because exceptions and exclusions within both
policies rendered their notice and storage provisions
meaningless. Dkt. #1 ¶¶ 65-90. Specifically, the
named individual plaintiffs alleged they were victims of
Defendants' ongoing policy and practice of seizing and
destroying the property of unhoused people living outside
without adequate notice, an opportunity to be heard, or a
meaningful way for them to reclaim any of their undestroyed
property. Id. ¶¶ 1, 5. Plaintiffs alleged
Defendants' policies, and actual encampment removal
practices, violated Plaintiffs' federal and state
constitutional rights. Id. ¶¶ 91-137,
January 31, 2017, the City proposed two new rules to modify
the MDAR 08-01. Dkt. #87 ¶ 123; also Dkt. #33,
Exs. C and D. The Finance and Administrative Services
Encampment Rule 17-01 (“Proposed FAS 17-01”)
proposed a uniform set of rules and procedures for removing
encampments on City property, while the Multi-Departmental
Administrative Rules (“Proposed MDAR 17-01”)
proposed a uniform set of rules and procedures for addressing
encampments on City property. See id.
February 6, 2017, Plaintiffs moved for a temporary
restraining order (“TRO”). Dkt. #23. A TRO
hearing was scheduled on February 13, 2017; Plaintiffs'
TRO motion was subsequently denied because Plaintiffs did not
demonstrate a likelihood of success on the merits or
irreparable harm. Dkt. #65 at 14-17. Following this denial,
Plaintiffs amended their initial Complaint. See Dkt.
#73. Subsequently, after a public comment period and
revisions, the City's MDAR 08-01 was superseded by the
final versions of the Proposed FAS 17-01 and the Proposed
MDAR 17-01. See Dkt. #94, Ex. C at 2 and Ex. D at 2.
On April 3, 2017, the FAS 17-01 and MDAR 17-01 (collectively
the “Updated Encampment Rules”) went into effect.
See id. Plaintiffs filed a Second Amended Complaint
on May 23, 2017. Dkt. #87.
Second Amended Complaint raises facial and as-applied
challenges to the City's Updated Encampment Rules and the
WSDOT Guidelines. Id. ¶¶ 102, 108-109,
111- 115, 124-138. Plaintiffs claim Updated Encampment Rule
exceptions governing “obstructions” and
“immediate hazards” allow the City to remove any
unauthorized encampment without notice. Id.
¶¶ 126-130. Plaintiffs also claim the City's
creation of “Emphasis Areas” force unhoused
persons to live in dangerous areas or leave them subject to
immediate removal. Id. ¶¶ 131-134.
Plaintiffs also assert the Updated Encampment Rules do not
contain a prior MDAR 08-01 requirement that allowed unhoused
persons to return to an encampment location to pack up their
belongings, and thus fail to provide an opportunity for
unhoused persons to contest the seizure and destruction of
their property. Id. ¶ 135. Finally, Plaintiffs
contend the Updated Encampment Rules do not require training
for City personnel, and they claim the enforcement of the
rules remains discretionary. See id. ¶¶
136-37. Plaintiffs likewise claim that exceptions and
exclusions to the WSDOT Guidelines “exempt many, if not
most, people living outside from even the most minimal of
notice protections, ” and they claim the WSDOT
Guidelines lack provisions to ensure pre- and
post-deprivation due process. Id. ¶¶ 102,
from their facial challenges, Plaintiffs also claim
Defendants' actual cleanup practices are
unconstitutional. Dkt. #87 ¶¶ 139-188.
Plaintiffs' Second Amended Complaint identifies eight
practices that allegedly result in the inadequate,
inconsistent, inaccurate, inaccessible, and/or misleading
provision of notice. Id. ¶¶ 144-157. These
practices include Defendants' alleged provision of notice
less than 72-hours before a cleanup, posting notice in
inconspicuous areas, notices that fail to specify where a
cleanup will occur, notices that do not reflect the date a
cleanup actually occurs, and notices that are inaccessible to
unhoused persons who cannot read written English.
the seizure of property, Plaintiffs' Second Amended
Complaint identifies six practices they claim are
unconstitutional. See id. ¶¶ 162-173.
These practices include Defendants alleged use of heavy
equipment machinery to summarily seize and destroy the
property of unhoused persons, Defendants' physical
seizure and destruction of property on site, the off-site
disposal of items unilaterally determined to be garbage or of
insufficient value, Defendants' practice of piling up all
items at an encampment site (including garbage),
Defendants' seizure and destruction of property without
an owner's permission (notwithstanding that the owner is
present), and the seizure and destruction of unabandoned
property left momentarily unattended. Id.
also identify several storage and storage-retrieval practices
they claim are unconstitutional. See Dkt. #187
¶¶ 174, 178-88. These practices include: (1)
Defendants' alleged “official sanctioned
practice” of ignoring policies that govern whether an
item should be stored; (2) Defendants ignore policies that
require them to notify unhoused persons of whether their
property will be stored, where it will be stored, for how
long it will be stored, and how it may be retrieved; (3) when
Defendants provide storage information, they only provide a
phone number, thus leaving people without phone access or
money for phone access without recourse; (4) Defendants do
not inventory or keep track of destroyed or confiscated
items, thus preventing unhoused persons from knowing whether
their property was stored; and (5) Defendants impose
additional barriers-including the location of Defendants'
storage facilities and the facilities' limited operating
hours-that burden an unhoused person's ability to
retrieve their personal property. Id.
individual named Plaintiffs, Lisa Hooper, Brandi Osborne,
Kayla Willis, and Reavy Washington (collectively the
“Individual Plaintiffs”), live outside, on public
property, in the City of Seattle. Dkt. #87 ¶¶ 34,
41, 50, 55. They allege they are victims of Defendants'
ongoing policy and practice of seizing and destroying the
property of unhoused people living outside without adequate
and effective notice, an opportunity to be heard, or a
meaningful way for them to reclaim any of their undestroyed
property. Id. ¶¶ 34-59. Plaintiffs further
allege they have had critical personal belongings taken and
destroyed during cleanups conducted by the City and WSDOT,
and were not given an opportunity to contest the confiscation
and destruction of their property. Id. ¶¶
35-36, 42-43, 46-47, 51, 56-57. They further assert they were
not given notice or reason to believe their property would be
stored and could later be retrieved. See id.
¶¶ 35-59. Three organizational plaintiffs, the
Diocese of Olympia, Trinity Parish of Seattle, and Real
Change, also join the Individual Plaintiffs' suit.
Id. ¶¶ 61-71.
this suit, Plaintiffs seek a declaratory judgment that
Defendants' alleged policy and practice of confiscating
and/or destroying the personal property of unhoused persons
without a warrant, probable cause, and the requisite due
process safeguards is unlawful under federal and state law.
Id. at 51. Plaintiffs also seek injunctive relief.
Rule of Civil Procedure 23 governs class certification.
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345
(2011). Under Rule 23(a), the party seeking certification
must demonstrate “(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). After satisfying the
Rule 23(a) requirements, the proposed class must also satisfy
at least one of the three requirements listed in Rule 23(b).
Dukes, 564 U.S. at 345; also Leyva v. Medline
Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013). In this
case, Plaintiffs seek to certify a class under Rule 23(b)(2).
Dkt. #2 at 7-8. Rule 23(b)(2) requires Plaintiffs to
demonstrate “the party opposing the class has 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). “Rule 23(b)(2) applies only when
a single injunction or declaratory judgment would provide
relief to each member of the class.” Dukes,
564 U.S. at 360.
Rule 23 “does not set forth a mere pleading
standard.” Id. at 350. Instead, the party
seeking certification must “affirmatively demonstrate
his compliance with the Rule-that is, he must be prepared to
prove that there are in fact sufficiently numerous parties,
common questions of law or fact, etc.” Id.
“Certification is proper only if the trial court is
satisfied, after a rigorous analysis, that the prerequisites
of Rule 23(a) have been satisfied.” Id. at
350-51 (internal quotation omitted). “[I]t may be
necessary for the court to probe behind the pleadings before
coming to rest on the certification question.” Gen.
Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982).
This is because “the class determination generally
involves considerations that are enmeshed in the factual and
legal issues comprising the plaintiff's cause of
action.” Id. (internal quotation omitted).
Nonetheless, the ultimate decision regarding class
certification “involve[s] a significant element of
discretion.” Yokoyama v. Midland Nat'l Life
Ins. Co., 594 F.3d 1087, 1090 (9th Cir. 2010).
obtain a preliminary injunction, Plaintiffs must establish
the following: (1) their likelihood to succeed on the merits;
(2) that it is likely they will suffer irreparable harm in
the absence of preliminary relief; (3) that the balance of
equities tips in their favor; and (4) that an injunction is
in the public interest. Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). Where a moving party's
assertions are “substantially controverted by
counter-affidavits, ” relief should not be granted
unless that party makes a “further showing” that
it will “probably succeed on the merits.” K-2
Ski Co. v. Head Ski Co., 467 F.2d 1087, 1089 (9th Cir.
Class Certification Motion.
Individual Plaintiffs seek certification of a class comprised
of all unhoused people who live outside within the City
of Seattle and who keep their personal possessions on public
property. Dkt. #2 at 1, 8. They assert certification is
proper because they satisfy the requirements of Rule 23.
Defendants do not dispute that Plaintiffs have established
Rule 23(a)(1)'s numerosity requirement, but disagree that
Plaintiffs demonstrate the remaining requirements needed for
class certification. The Court addresses each requirement in
Plaintiffs Establish Numerosity.
Rule 23(a)(1), a class action may only be maintained if
“the class is so numerous that joinder of all members
is impracticable.” Courts consider several factors to
determine if joinder of class members is impracticable, and
plaintiffs need not demonstrate that joinder is impossible.
7A Charles Alan Wright, Arthur R. Miller, & Mary Kay
Kane, Federal Practice & Procedure § 1762 (3d ed.
2017). The size of the proposed class, the location of
putative class members, the nature of the action and relief
sought, and the class members' reluctance, or inability,
to sue on their own may all contribute to a court's Rule
23(a)(1) analysis. Id.; also Gray v. Golden Gate
Nat. Recreational Area, 279 F.R.D. 501, 508 (N.D. Cal.
2011); Jordan v. L.A. Cnty., 669 F.2d 1311, 1319
(9th Cir. 1982), vacated on other grounds, 459 U.S.
satisfy numerosity for three reasons. First, Plaintiffs have
submitted a report indicating there are at least 2, 942
people in Seattle without fixed, regular, or adequate
housing, and at least 2, 000 of these people live outside.
See Dkt. #202, Ex. 1 at 3. Second, considering that
unhoused persons typically lack the financial means to pursue
individual litigation, and because this population may be
transient, the Court agrees with Plaintiffs that individual
joinder is unlikely. See Dkt. #2 at 9-10. Finally,
the Court also agrees that because the proposed class may
contain unknown members who may also be subject to
Defendants' alleged policies and practices, joinder is
impracticable. In summary, given the potential size and
demographics of the proposed class, the Court agrees that
joinder is impracticable, if not impossible. Plaintiffs thus
satisfy Rule 23(a)(1)'s numerosity requirement.
Plaintiffs Fail to Establish Commonality.
can be established if Plaintiffs demonstrate they and the
proposed class members “‘have suffered the same
injury.'” Dukes, 564 U.S. at 349-50
(quoting Falcon, 457 U.S. at 157). This can be done
if Plaintiffs raise a “common contention” between
them and the proposed class members of “such a nature
that it is capable of classwide resolution.”
Id. at 350. A contention is capable of classwide
resolution if determining its truth or falsity resolves
“an issue that is central to the validity of each one
of the claims in one stroke.” Id.
Consequently, “what matters to class certification . .
. is not the raising of common questions-even in droves- but,
rather the capacity of a classwide proceeding to generate
common answers apt to drive the resolution of the
litigation.” Id. Commonality is thus usually
satisfied where plaintiffs allege that the same conduct or
practice by the same defendant underlies their claims. 1
Joseph M. McLaughlin, McLaughlin on Class Actions: Law and
Practice § 4:7, at 623 (13th ed. 2016). This requirement
is construed permissively, and all questions of fact and law
need not be common to satisfy Rule 23(a)(2). See Hanlon
v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).
“In the civil rights context, commonality is satisfied
‘where the lawsuit challenges a system-wide practice or
policy that affects all of the putative class
members.'” Parsons v. Ryan, 289 F.R.D.
513, 516 (D. Ariz. 2013) (quoting Armstrong v.
Davis, 275 F.3d 849, 868 (9th Cir. 2001)). However,
Plaintiffs must present “significant proof” of
the alleged system-wide practice or policy. Id. at
521-22 (“[T]he crucial question is whether there is
sufficient evidence of systemic issues in the provision of
health care or whether Plaintiffs' allegations are simply
many examples of isolated instances of deliberate
do not meet the evidentiary burden necessary to demonstrate
commonality. As explained by the Ninth Circuit in Parsons
v. Ryan, 754 F.3d 657, 679 (9th Cir. 2014), in analyzing
commonality, it is critical for district courts to identify
the policies and practices plaintiffs allege they and the
proposed class members are exposed to. By identifying these
policies and practices, the Court can then determine if
Plaintiffs demonstrate that the proposed class members are
all exposed to the challenged policies, which in turn allows
the Court to assess whether determining common questions
raised by these policies will “resolve an issue that is
central to the validity of each one of the [individual class
members'] claims in one stroke.” Dukes,
564 U.S. at 350.
although Plaintiffs' Second Amended Complaint identifies
several notice, storage, and storage-retrieval practices
Defendants allegedly engage in, Plaintiffs' class
certification motion does not try to demonstrate the
existence of the practices alleged. See Dkts. #2 at
10-11 and #87 ¶¶ 139-188. Instead, in their Reply,
Plaintiffs refer to declarations, videos, and photographs
they contend support the existence of Defendants' alleged
unlawful practices. See Dkt. #159 at 2, 4. However,
Plaintiffs' conclusory statement is not supported by the
evidence cited. See Dkts. #94, Exs. J-R and #121.
The declarations, photographs, and videos cited do not
provide enough context for the Court to determine at which
point in the City's multi-stage cleanup process the
declarants observed the alleged destruction of property.
Notably, at least one source of the videos and photographs
admits not knowing this critical information, and
Plaintiffs' own counsel admitted at oral argument he did
not know at which stage in the cleanup process the videos and
photographic evidence were taken. See Dkts. #180,
Ex. E at 209-211 and #208 at 13. This is unlike
Parsons, where the plaintiffs submitted significant
proof of the existence of the systemic policies and practices
alleged. 754 F.3d at 681-84. Here, Plaintiffs fail to do the
raising of five questions they claim are common to the entire
proposed class also fails to satisfy commonality.
See Dkt. #2 at 11. Plaintiffs contend they satisfy
commonality because the proposed class members share common
questions of fact and law. Plaintiffs list the following as
representative questions shared by the proposed class:
1. Whether Defendants have a practice and policy of seizing
and destroying the personal property of people living outside
without a warrant, probable cause, adequate notice, an
opportunity to have a meaningful pre- or post-deprivation
hearing, or an opportunity to retrieve vital personal
property before its seizure or destruction?;
2. Whether Defendants' policy and practice violates
Plaintiffs' constitutional rights against unreasonable
search and seizures under the U.S. Constitution?;
3. Whether Defendants' custom, policy, or practice
violates class members' right to privacy under Article I,
Section 7 of the Washington State Constitution?;
4. Whether Defendants' custom, policy, or practice
violates class members' constitutional rights to due