Defendants' Motion for Order Denying Class Certification in the Gratz Case

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

____________________________________

JENNIFER GRATZ, et al.,
             Plaintiffs

     v.

LEE BOLLINGER, et al.,
             Defendants,
____________________________________

)
)
)     Civil Action No. 97-75231
)
)     Hon. Patrick Duggan
)
)     Hon. Thomas A.Carlson
)
)
)
)

DEFENDANTS’ MOTION FOR ORDER DENYING CLASS CERTIFICATION
For the reasons set forth in the attached Memorandum of Law, defendants Lee Bollinger, James J. Duderstadt, and the Regents of the University of Michigan (“Defendants”) hereby move the Court for an order denying class certification pursuant to Rule 23(c)(1) of the Federal Rules of Civil Procedure.

On September 8, 1998 counsel for defendants sought concurrence in this Motion from counsel for plaintiffs, but concurrence was not obtained.


Respectfully submitted,

_______________________________________
John Payton
Jane Sherburne
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000

AND

_______________________________________
Leonard M. Niehoff

P36695
BUTZEL LONG
350 South Main Street, Suite 300
Ann Arbor, MI 48104
(313) 213-3625

Of Counsel:
John H. Pickering
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000

Dated: September 14, 1998

TABLE OF CONTENTS         Page

Table of Authorities      iv

Statement of Issues Presented      viii

Principal Authorities      ix

Introduction      2

I. Certification Under Rule 23(b)(1) Is Inappropriate      5

A. Rule 23(b)(1)(A) Does Not Authorize Certification Because This Lawsuit Primarily Seeks Damages, And, Therefore, Individual Lawsuits by Putative Class Members Pose No Risk Of Imposing Irreconcilable Standards Of Conduct On Defendants      5

1. Plaintiffs' Proposed Class Lacks Standing to Seek Injunctive Relief      6

2. The Type of Injunction That The Proposed Class Seeks Would Not Justify Certification Under Rule 23(b)(1)(A)      8

B. Certification Under Rule 23(b)(1)(A) Should Be Denied When the Party Opposing the Class Waives Protection Against the Risk of Incompatible Adjudications      11

C. Application of the ALimited Fund@ Rationale for Certification Under Rule 23(b)(1)(B) to This Case Is Misplaced      12

II. Inappropriate Certification Under Rule 23(b)(2) Is Inappropriate, As Plaintiffs= Proposed Class Seeks Damages, Not Injunctive Relief      13

A. Rule 23(b)(2) Is Available Only For Classes Seeking Primarily Injunctive Relief      13

B. Plaintiffs' Proposed Class Seeks Primarily Monetary Damages      14

C. Plaintiffs' Proposed Class Lacks Standing To Seek Injunctive Relief      16

D. Even If The Purported Class Had Standing To Seek Injunctive Relief, Certification Under Rule 23(b)(2) Would Still Be Unnecessary      16

Conclusion      19

TABLE OF AUTHORITIES

CASES

Adarand Constructors Inc. v. Peña,
515 U.S. 200 (1995)      7

Allison v. Citgo Petroleum Corp.,
F.3d__, No. 26-30489, 1998 WL 483970
(5th Cir. Aug. 18, 1998)      passim

Brock v. International Union,
889 F.2d 685 (6th Cir. 1989)      6

Brunet v. City of Columbus,
1 F.3d 390 (6th Cir. 1993)      8

Carey v. Piphus,
435 U.S. 247 (1978)      14

Chmieleski v. City Products Corp.,
71 F.R.D. 118 (W.D. Mo. 1976)      11

Cook County College Teachers Union, Local 1600, American Federation of Teachers,
AFL-CIO v. Byrd,
456 F.2d 882 (7th Cir. 1972)      1

Craft v. Memphis Light, Gas & Water Division,
534 F.2d 684 (6th Cir. 1976), aff'd, 436 U.S. 1 (1978)      16,18

Employers Insurance of Wausau v. FDIC,
112 F.R.D. 52 (E.D. Tenn. 1986)      9

Erebia v. Chrysler Plastic Products Corp.,
772 F.2d 1250 (6th Cir. 1985)      14

Fogie v. Rent-A-Center,
867 F. Supp. 1398 (D. Minn. 1993)      11

Fuller v. Fruehauf Trailer Corp.,
168 F.R.D. 588 (E.D. Mich. 1996)      4

Gray v. International Brotherhood of Electrical Workers,
73 F.R.D. 638 (D.D.C. 1977)      18

Green v. Williams,
94 F.R.D. 238 (E.D. Tenn. 1980)      18

Honig v. Doe,
484 U.S. 305 (1988)      6

In re Agent Orange Product Liability Litigation,
100 F.R.D. 718 (E.D.N.Y. 1983), aff'd, 818 F.2d 145 (2d Cir. 1987))      12

In re Bendectin Product Liability Litigation,
749 F.2d 300 (6th Cir. 1984)      6,9,12

In re Jackson Lockdown/MCO Cases,
107 F.R.D. 703 (E.D. Mich. 1985)      5,10

In re Rio Hair Naturalizer Product Liability Litigation,
No. MDL 1055, 1996 WL 780512 (E.D. Mich. Dec. 20, 1996)      12

Kardules v. Columbus,
95 F.3d 1335 (6th Cir. 1996)      7

Levels v. Akzo Nobel Salt, Inc.,
178 F.R.D. 171 (N.D. Ohio 1998)      10

Lewis v. Casey,
518 U.S. 343 (1996)      7

Los Angeles v. Lyons,
461 U.S. 95 (1983)      6,7,16

Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992)      8

Lukenas v. Bryce's Mountain Resort, Inc.,
538 F.2d 594 (4th Cir. 1976)      13

Moll v. Parkside Livonia Credit Union,
525 F. Supp. 786 (E.D. Mich. 1981)      15

Natural Resources Defense Council v. Peña,
F.3d , No. 97-5253, 97-5254, 1998 WL 396244 (D.C. Cir. July 17, 1998)      8

Pettco Enterprise v. White,
162 F.R.D. 151 (M.D. Ala. 1995)      11

Pruitt v. Allied Chemical Corp.,
85 F.R.D. 100 (E.D. Va. 1980)      11

Regents of the University of Cal. v. Bakke,
438 U.S. 265 (1978)      17

Senter v. General Motors Corp.,
532 F.2d 511 (6th Cir. 1976)      13,15

Smith v. Brown & Williamson Tobacco Corp.,
174 F.R.D. 90 (W.D. Mo. 1997)      10

Spirt v. Teachers Insurance & Annuity Association,
416 F. Supp. 1019 (S.D.N.Y. 1976)      18

Sprague v. General Motors Corp.,
133 F.3d 388 (6th Cir.), cert. denied, 118 S. Ct. 2312 (1998)      3

Steel Co. v. Citizens for a Better Environment,
118 S. Ct. 1003 (1998)      8

Turic v. Holland Hospitality, Inc.,
85 F.3d 1211 (6th Cir. 1996)      14

United States v. Burke,
504 U.S. 229 (1992)      15

CONSTITUTION

U.S. Const. amend. XIV      3

STATUTES

Fed. R. Civ. Proc. 23(a)      3

Fed. R. Civ. P. 23(b)(1)      passim

Fed. R. Civ. P. 23(b)(2)      passim

Fed. R. Civ. P. 23(b)(3)      4,5,16

Fed. R. Civ. P. 23(c)(1)      1

42 U.S.C. ' 2000d (Title VI of the Civil Rights Act of 1964)      3

BOOKS

5 J. Moore, Moore's Federal Practice (3d ed. 1995)      passim

1 H. Newberg & A. Conte, Newberg on Class Actions (3d ed. 1992)      passim

STATEMENT OF ISSUES PRESENTED

1. Whether the fact that all members of the putative class seek to impose the same standard of conduct on defendants makes class certification under Rule 23(b)(1)(A) inappropriate.

2. Whether the absence of a limited fund or a legitimate analogous situation makes class certification under Rule 23(b)(1)(B) inappropriate.

3. Whether the putative class lacks standing to bring this action principally for injunctive relief such that class certification under Rule 23(b)(2) is unwarranted.

4. Whether the benefit that the putative class seeks would accrue to the class if the plaintiff prevailed in her individual damages action such that class certification under Rule 23(b)(2) is unnecessary.

PRINCIPAL AUTHORITIES

Allison v. Citgo Petroleum Corp.,
___ F.3d ___, No. 96-30489, 1998 WL 483970 (5th Cir. Aug. 18, 1998).

Craft v. Memphis Light, Gas & Water Division,

534 F.2d 684 (6th Cir. 1976), aff=d, 436 U.S. 1 (1978).

Los Angeles v. Lyons,
461 U.S. 95 (1983).

Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992).

Steel Co. v. Citizens for a Better Environment,
118 S. Ct. 1003 (1998).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

_________________________________________
JENNIFER GRATZ and PATRICK
HAMACHER,

             Plaintiffs

     v.

LEE BOLLINGER, et al.,

             Defendants,
_________________________________________

)
)
)     Civil Action No. 97-75231
)
)     Hon. Patrick Duggan
)
)     Hon. Thomas A.Carlson
)
)
)
)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’
MOTION FOR ORDER DENYING CLASS CERTIFICATION

Plaintiffs purport to bring this action on behalf of a class. Rule 23(c)(1) of the Federal Rules of Civil Procedure provides that “[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” Opponents of a class action may move for a determination by the court that the dispute may not be maintained as a class action. See generally Cook County College Teachers Union, Local 1600, Amer. Fed'n. of Teachers, AFL–CIO v. Byrd, 456 F.2d 882, 884-885 (7th Cir. 1972); 5 J. Moore, Moore’s Federal Practice ' 23.61(6)(a) at 23-280 (3d ed. 1998)(“Moore”). Defendants Lee Bollinger, James J. Duderstadt and the Regents of the University of Michigan hereby move to deny class certification because plaintiffs fail to satisfy the requirements for a class action under Rule 23(b) of the Federal Rules of Civil Procedure.

INTRODUCTION

The University of Michigan enrolls, each year, a talented and diverse class of students. In order to do so, the University considers, among a broad array of factors, whether, and how, an applicant will contribute to the University’s diversity -- including its racial and ethnic diversity.

In January 1995, plaintiff Jennifer Gratz applied for admission to the Integrated Pre-Medical/Medical Program (“Inteflex”) and the College of Literature, Science & Arts (“LSA” or “LSA College”) at the University of Michigan in Ann Arbor. In January 1995, her application to the Inteflex program was denied, and she was notified that a decision regarding whether she would be admitted to the LSA would be postponed. In April 1995, Gratz was offered a position on the extended wait list for admission to LSA fall class. LSA never received a response from Gratz accepting or rejecting the offer. See Answer (filed Dec. 3, 1997), & 4. Gratz was not admitted to LSA. She currently attends the University of Michigan at Dearborn. See Complaint (filed Oct. 14, 1997) (“Complaint”) & 4; Plaintiff Jennifer Gratz's Objections and Answers to Defendants' First Set of Interrogatories (served Feb. 13, 1998), Interrogatory No.1, (Ex. A) pp. 2-4.

In October 1996, plaintiff Patrick Hamacher applied for admission to the LSA. He was notified in November 1996 that a decision on his application would be postponed until April 1997. Hamacher was offered a position on the extended wait list in April 1997, which he did not accept. Instead, he attended Michigan State University. See Complaint & 5; Plaintiff Patrick Hamacher's Objections and Answers to Defendants' First Set of Interrogatories (served Feb. 13, 1998), Interrogatory No.1, (Ex. B) pp. 2-4.

Plaintiffs contend that the University of Michigan’s consideration of race as a factor in admissions “caused” their rejection. Complaint & 25. They further contend that insofar as the University’s efforts to achieve a diverse student body include the consideration of an applicant’s race or ethnicity, the University“s efforts violate the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, 42 U.S.C. ' 2000d. Complaint & 1.

Plaintiffs purport to be suing on behalf of a class consisting of Aall students who:

applied for and were not granted admission to the LSA College for all academic years since 1995-96 through the entry of a judgment in this action; and
were members of those racial or ethnic groups, including Caucasian, that defendants treated less favorably in considering their applications for admission to the LSA College.”

Complaint & 9. Plaintiffs “seek to maintain this class [action] pursuant to Rules 23(b) and 23(c)(4).” Complaint & 10. Class actions under Rule 23(b) are categorized according to the “nature or effect of the relief being sought.” Allison v. Citgo Petroleum Corp., __F.3d__, No. 26-30489, 1998 WL 483970, at *7 (5th Cir. Aug. 18, 1998). ¹ Specifically:

Rule 23(b)(1) addresses cases where separate individual actions would risk imposing “incompatible standards of conduct” or would, as a practical matter “be dispositive of the interests” of non-party class members. It is Adesigned to avoid prejudice to the defendant or absent class members if individual actions were prosecuted in contrast to a class suit yielding a unitary adjudication.” 1 H. Newberg & A. Conte, Newberg on Class Actions ' 4.01 (3d ed. 1992) (“Newberg”).

Rule 23(b)(2) is designed to address situations where “broad, class-wide injunctive or declaratory relief is necessary.” Allison, 1998 WL 483970, at *7. It may be invoked only where claims for injunctive or declaratory relief predominate over claims for damages. Fuller v. Fruehauf Trailer Corp., 168 F.R.D. 588, 603 (E.D. Mich. 1996).

Rule 23(b)(3) permits class-wide litigation for money damages. Allison, 1998 WL 483970, at *8. This provision makes class actions suitable only “when a class action is superior to other available methods for adjudication of the controversy and common questions predominate over individual ones.” 1 Newberg on Class Actions ' 4.01.

Class treatment is not warranted here because plaintiffs’ action does not fall into any of the three categories contemplated by Rule 23(b). Specifically, Rule 23(b)(1) is unavailable because it is limited to cases involving primarily equitable relief. Rule 23(b)(1)(B) is also inapplicable, because this case does not involve a “common pool” of money that needs to be divided among the members of the plaintiff class. Rule 23(b)(2) certification is appropriate only where a claim for injunctive relief predominates over any claim for monetary damages. The proposed class is made up only of those who applied to the LSA in the past, not those who face “imminent” risk of future injury that might be prevented by an injunction. Plaintiffs’ proposed class therefore has standing only to seek damages and cannot be awarded injunctive relief. Rule 23(b)(2) is thus unavailable. Defendants’ motion does not address Rule 23(b)(3) in detail, as it is plain that individual issues of causation, i.e., whether defendants’ consideration of race caused each plaintiff any injury, will predominate over common issues. Plaintiffs’ counsel, in moving for class certification in a similar lawsuit challenging the admissions policies at the University of Michigan Law School, has moved to certify a class, invoking only Rules 23(b)(1) and (b)(2) and not 23(b)(3). Plaintiff’s motion in that action, and defendants’ opposition thereto, are included herein as Exhibits C and D.

I. CERTIFICATION UNDER RULE 23(b)(1) IS INAPPROPRIATE

A. Rule 23(b)(1)(A) Does Not Authorize Certification Because This Lawsuit Primarily Seeks Damages, and, Therefore, Individual Lawsuits by Putative Class Members Pose No Risk of Imposing Irreconcilable Standards of Conduct on Defendants.

Maintenance of a class action under Rule 23(b)(1)(A) requires a risk of “inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). This provision necessarily applies only where injunctive relief is available; otherwise, there is no basis for a court affirmatively to order a party to comply with a “standard of conduct.” See In re Jackson Lockdown/MCO Cases, 107 F.R.D. 703, 713 (E.D. Mich. 1985) (“[s]ection (b)(1)(A) is designed for class actions involving equitable remedies” as opposed to damages). It does not apply in cases involving only damages, because the possibility that some plaintiffs might recover damages, while others might not, does not pose the prospect that defendants would face the conflicting, court-ordered relief that Rule 23(b)(1)(A) was crafted to prevent. See In re Bendectin Prod. Liab. Litig., 749 F.2d 300, 305 (6th Cir. 1984); see also Moore ' 23.41[5][a] at 23-162.

1.1. Plaintiffs’ Proposed Class Lacks Standing To Seek Injunctive Relief

Plaintiffs’ complaint states that they seek to maintain this suit as a class action on behalf of those applicants who -- in the past -- “applied for and were not granted admission to the LSA College.” See Complaint & 9. This proposed class lacks standing to seek injunctive relief, as there is no suggestion that the members of the plaintiff class have an immediate intention of applying for admission to the LSA. The Supreme Court and the Sixth Circuit have made clear that standing to seek damages is separate from standing to seek injunctive relief, and that a plaintiff must separately have standing to obtain each element of relief sought. As the Sixth Circuit noted in Brock v. International Union, 889 F.2d 685, 692 (6th Cir. 1989), the “Supreme Court has instructed that) for the purposes of assessing the likelihood’ that a complaining party will again be subjected to a particular action, the courts) generally have been unwilling to assume that the party seeking relief will repeat the type of [activity which was the focus of the judicial complaint and] that would once again place him or her at risk of that injury’.” (quoting Honig v. Doe, 484 U.S. 305, 320 (1988)).

For example, in Los Angeles v. Lyons, 461 U.S. 95 (1983), the Supreme Court held that a plaintiff who alleged that he was unlawfully placed in a chokehold by the police in the past lacked standing to enjoin the police practice of using chokeholds. “Lyons’ standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers. . . . That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat [of future injury].” Id. at 105. See also Adarand Constructors Inc. v. Peña, 515 U.S. 200, 210-11 (1995) (“Adarand’s allegation that it has lost a contract in the past because of a subcontractor compensation clause of course entitles it to seek damages for the loss of that contract . . . [But] the fact of past injury, while presumably affording the plaintiff standing to claim damages, does nothing to establish a real and immediate threat that he would again suffer similar injury in the future”) (internal quotations, brackets, and ellipses omitted); Kardules v. Columbus, 95 F.3d 1335, 1347 (6th Cir. 1996) (“Because Lyons did not show that he was likely to be subjected to another chokehold in the future, the Supreme Court concluded that Lyons lacked standing to seek injunctive relief.”). Likewise, allegations based on a past denial of admission to the LSA because of the University’s consideration of race are insufficient to demonstrate a real and immediate threat of future injury to the proposed class.

The requirement that a plaintiff allege that he or she will be subject to the challenged action in the future is “no less true with respect to class actions than with respect to other suits. That a suit may be a class action adds nothing to the question of standing, for even named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.” Lewis v. Casey, 518 U.S. 343, 357 (1996) (internal quotations and ellipses omitted). See also Steel Co. v. Citizens for a Better Env’t, 118 S. Ct. 1003, 1020 (1998) (“Because respondent alleges only past infractions . . . and not a continuing violation or the likelihood of a future violation, injunctive relief will not redress its injury.”); Natural Resources Defense Council v. Peña, __F.3d__, No. 97-5253, 97-5254, 1998 WL 396244, at *10 (D.C. Cir. July 17, 1998) (same). The proposed class faces no immediate risk of future injury. ² Accordingly, it lacks standing to seek injunctive relief, and Rule 23(b)(1)(A) has no application to this case.

2.2. The Type of Injunction That The Proposed Class Seeks Would Not Justify Certification Under Rule 23(b)(1)(A).

Even if the proposed class did have standing to obtain injunctive relief, the type of injunction that would be appropriate would not justify the invocation of Rule 23(b)(1)(A). Specifically, plaintiffs would be required to demonstrate not only a likelihood of differing results, but also a likelihood that such variation would trap defendants in a Catch–22 dilemma in which compliance with one judicial order necessarily would entail defiance of another. See 5 Moore ' 23.41[2][a] at 23–155. The Sixth Circuit has adopted this interpretation of 23(b)(1)(A), requiring more than mere potential variation among suits brought by putative class members. See In re Bendectin Prod. Liab. Litig., 749 F.2d 300, 305 (6th Cir. 1984) (issuing writ of mandamus to decertify class because, in part, “[t]he fact that some plaintiffs may be successful in their suits against a defendant while others may not is clearly not a ground for invoking Rule 23(b)(1)(A)”); see also Employers Ins. of Wausau v. FDIC, 112 F.R.D. 52, 55 (E.D. Tenn. 1986) (“the kind of incompatibility which Rule 23(b)(1)(A) is designed to prevent is something greater than inconsistent adjudications”).

Certification under Rule 23(b)(1)(A) is appropriate only where there is a risk that “incompatible standards of conduct” will be imposed on the party opposing the class. Fed. R. Civ. P. 23(b)(1)(A). It “is designed to protect against the nonclass party’s being placed in a stalemated or conflicted position and is applicable only to actions in which there is not only a risk of inconsistent adjudications but also where the nonclass party could be sued for different and incompatible affirmative relief.” Employers Ins. of Wausau, 112 F.R.D. at 54 (emphasis omitted). See also Moore ' 23.41[2][a] at 23–155–56 (“Rule 23(b)(1)(A) is satisfied only if inconsistent judgments in separate suits would place the party opposing the class in the position of being unable to comply with one judgment without violating the terms of another judgment”). But even plaintiffs do not suggest that they are entitled to have the Court order the University to adopt any particular admissions policy. Plaintiffs, and the members of the putative class, contend only that the University should be forbidden from considering race (or from considering it in a particular way). And no one in the putative class seeks an injunction requiring the University to consider race. Cf. Pl’s Mem. in Opp. to Mot. For Intervention at 5 (“what defendants are allegedly permitted to do” is not the same as what they are required to do) (emphasis in original). Accordingly, there is no risk that defendants might face the kinds of conflicting awards of affirmative relief with which Rule 23(b)(1)(A) is concerned. ³

If there were merit to plaintiffs= underlying challenge to the University’s admissions policy, the possibility that only certain members of the class would prevail would not impose “incompatible standards.” Rather, such a result would be expected in light of differences among the putative class members’ individual circumstances. See Levels v. Akzo Nobel Salt, Inc., 178 F.R.D. 171, 180 (N.D. Ohio 1998) (“Because the conduct each Plaintiff complains of varies with individual circumstances, the Court finds no risk of inconsistent adjudications”); Smith v. Brown & Williamson Tobacco Corp., 174 F.R.D. 90, 99 (W.D. Mo. 1997) (denying certification of 23(b)(1)(A) class seeking medical monitoring because “the relief in question is fraught with individualized issues”). As the court observed in In re Jackson, supra, 107 F.R.D. at 711, “[t]he Rule 23(b)(1)(A) class action is designed to avoid inconsistent adjudications in identical fact situations.” The rule does not apply simply by virtue of the fact that some class members may be entitled to relief, while others are not. See Newberg ' 4.04 at 4-14 (“The most commonly used and accepted limitation on Rule 23(b)(1)(A) is that this subdivision was not designed to cover class situations where some members recover and others do not”). In this case, potential plaintiffs’ “fact situations” are hardly identical; in fact, they are unique. Hence, this case does not fall within the intended design of 23(b)(1)(A).

B. Certification Under Rule 23(b)(1)(A) Should Be Denied When the Party Opposing the Class Waives Protection Against the Risk of Incompatible Adjudications.

Even if defendants could face conflicting judicial orders, defendants can decline to employ the shield of Rule 23(b)(1)(A). Rule 23(b)(1)(A) views the fact situation from the perspective of the defendant. See 1 Newberg on Class Actions ' 4.03 at 4-11. As the intended beneficiary of 23(b)(1)(A), the class-opposing defendant can waive the protection it affords. See Pettco Enter. v. White, 162 F.R.D. 151, 155 (M.D. Ala. 1995) (“it is inappropriate to certify a Rule 23(b)(1)(A) class over objection of the party opposing the class”); Fogie v. Rent-A-Center, 867 F. Supp. 1398, 1403 (D. Minn. 1993) (“Rule 23(b)(1)(A) was designed to protect the party opposing the class and the defendant may waive it by opposing certification”); Pruitt v. Allied Chem. Corp., 85 F.R.D. 100, 106-07 (E.D. Va. 1980) (“Subsection (b)(1)(A) is designed to protect the interests of the party opposing the class. Where that party does not seek the protection of a (b)(1)(A) class action . . . the availability of the class action asserted under Rule 23(b)(1)(A) is questionable.”); Chmieleski v. City Prod. Corp., 71 F.R.D. 118, 155 (W.D. Mo. 1976) (“[D]efendants in this action[] have vigorously opposed certification of a class under Rule 23(b)(1)(A) and thereby have declined the protection afforded to them by that provision of Rule 23.”).

C. Application of the "Limited Fund" Rationale for Certification Under Rule 23(b)(1)(B) to This Case Is Misplaced.

Rule 23(b)(1)(B) was intended to protect the proportionate interests of plaintiffs with respect to each other. It permits certification when suits by individual plaintiffs “would as a practical matter be dispositive of the interests of the other members . . . or substantially impair or impede their ability to protect their interests.” Fed. R. Civ. P. 23(b)(1)(B). The “most common use of subsection (b)(1)(B) class actions is in limited fund cases.” 1 Newberg, ' 4.09 at 4–31. A limited fund is defined in monetary terms -- “a fixed asset or piece of property . . . in which all class members have a preexisting interest, and an apportionment or determination of the interests of one class member cannot be made without affecting proportionate interests of other class members similarly situated,” 1 Newberg ' 4.09 at 4-31, 4-33.

Rule 23(b)(1)(B) certification of the proposed class under a limited fund rationale is not justified. The Sixth Circuit has permitted certification of 23(b)(1)(B) “limited fund” classes only on proof of a finite monetary fund or financial asset from which plaintiffs can recover. See, e.g., In re Bendectin, 749 F.2d at 305; In re Rio Hair Naturalizer Prod. Liab. Litig., No. MDL 1055, 1996 WL 780512, at *4 (E.D. Mich. Dec. 20, 1996) (identifying the Sixth Circuit test for a limited fund as “[w]hether there is a substantial probability . . . that if damages were awarded, the claims of earlier litigants would exhaust the defendants’ assets”) (quoting In re Agent Orange Prod. Liab. Litig., 100 F.R.D. 718, 726 (E.D.N.Y. 1983), aff’d, 818 F.2d 145 (2d Cir. 1987)). There can be no suggestion that such a situation is presented here.

II. CERTIFICATION UNDER RULE 23(b)(2) IS INAPPROPRIATE, AS PLAINTIFFS’ PROPOSED CLASS SEEKS DAMAGES, NOT INJUNCTIVE RELIEF

A. Rule 23(b)(2) Is Available Only For Classes Seeking Primarily Injunctive Relief.

Rule 23(b)(2) provides that a class action may be maintained where Afinal injunctive relief or corresponding declaratory relief with respect to the class as a whole@ is appropriate. Certification under Rule 23(b)(2) is reserved for those cases in which a class of plaintiffs seeks primarily injunctive or declaratory relief. See Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976) (permitting certification under Rule 23(b)(2) where “[a]ppellant’s primary prayer was for injunctive relief”); Lukenas v. Bryce’s Mountain Resort, Inc., 538 F.2d 594, 596 (4th Cir. 1976) (“It is a monetary judgment that the plaintiffs seek and that is obvious from the phrasing of their prayer. Such an action is not suitable for treatment as a class action under Rule 23(b)(2)”).

While a claim for monetary relief does not necessarily preclude certification under Rule 23(b)(2), certification is available only where the monetary awards sought are “either (1) equitable in nature or (2) secondary or ancillary to the general scheme of injunctive or declaratory relief sought by the plaintiff.” 1 Newberg on Class Actions ' 4.14. Where claims for monetary damages predominate, however, certification under Rule 23(b)(2) is inappropriate. Allison, 1998 WL 483970, at *8.

The case law makes clear that claims for monetary damages predominate over equitable relief unless the monetary relief is “incidental to the requested injunctive or declaratory relief.” Allison, 1998 WL 483970, at *9 (emphasis added); Senter, 532 F.2d at 525. “By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis for injunctive or declaratory relief.” Allison, 1998 WL 483970, at *9.

B. Plaintiffs’ Proposed Class Seeks Primarily Monetary Damages.

There can be no question that the plaintiffs’ proposed class seeks primarily monetary damages. For example, plaintiffs contend that they each have suffered “humiliation, emotional distress, and pain and suffering as a consequence of his or her application being rejected,” Complaint & 25, and that each plaintiff separately “suffered humiliation, emotional distress, and pain and suffering upon learning that defendants had discriminated against him or her on the basis of race.” Id. Plaintiffs further allege that they suffered economic damages because they were “forced to attend undergraduate institutions that were either less prestigious or more expensive (or both) resulting in higher educational costs and lower future earnings.” Complaint & 26. Thus, they seek to recover “compensatory and punitive damages in an amount to be proven at trial.” Complaint at p. 8. Plaintiffs’ claims are purportedly typical of the class.

These alleged damages cannot be described as “incidental” to any claim for injunctive or declaratory relief because such damages may not, as a matter of law, flow directly from a determination that injunctive or declarative relief is warranted. To the contrary, further evidence must be presented to show an entitlement to the claimed damages. Indeed, the Sixth Circuit has expressly held that “emotional distress” damages, such as those plaintiffs seek to recover, “will not be presumed and must be proven by >competent evidence.’” Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1215 (6th Cir. 1996) (citing Carey v. Piphus, 435 U.S. 247, 263-64 & n.20 (1978)). See also Erebia v. Chrysler Plastic Prods. Corp., 772 F.2d 1250, 1259 (6th Cir. 1985) (plaintiff claiming emotional distress must come forward with evidence demonstrating “distress injury” with sufficient “specificity”).

To prove these claims, each plaintiff will, therefore, be required to present witnesses and evidence demonstrating his or her injury. Thus, plaintiffs’ damages do not “flow directly from liability,” Allison, 1998 WL 483970, at *9, and are not “incidental” to a claim for declaratory or injunctive relief. Consequently, class certification under Rule 23(b)(2) is inappropriate.

Plaintiffs’ own actions demonstrate that they view their claims as claims for compensatory damages, rather than for injunctive or declaratory relief. Specifically, by filing a demand for jury trial with respect to their damages claims -- which is appropriate only in cases seeking legal damages, not equitable or declaratory relief -- plaintiffs effectively concede that treatment under Rule 23(b)(2) would be inappropriate. See Demand For Jury Trial (filed Dec. 19, 1997). ⁴

Plaintiffs’ claims for punitive damages also seek a form of “legal” damages, not equitable relief. See Moll v. Parkside Livonia Credit Union, 525 F. Supp. 786, 793 (E.D. Mich. 1981) (“Punitive damages obviously are a legal rather than equitable remedy.”). While plaintiffs might argue that their claims for punitive damages render this case more suitable for class certification under Rule 23(b)(2) than it would be without this claim because the predominance of plaintiffs’ claims for legal damages defeats Rule 23(b)(2) certification, precisely the opposite is true.

Because the class that plaintiffs seek to maintain primarily seeks damages, the only possible route by which this class could have been certified would have been by Rule 23(b)(3), which would require -- as Due Process would seem to mandate -- that individual plaintiffs receive notice and the opportunity to opt out of the class (and thereby control their own lawsuits). Defendants do not believe that the requirements of Rule 23(b)(3), namely, that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members,” Fed. R. Civ. P. 23(b)(3), and that “a class action is superior to other available methods for the fair and efficient adjudication of this controversy,” id., are satisfied here.

C. Plaintiffs’ Proposed Class Lacks Standing to Seek Injunctive Relief Standing to seek injunctive relief is available only when the plaintiff can establish “a real and immediate threat [of future injury].” Lyons, supra, 461 U.S. at 105; see supra at 6-8. As plaintiffs described the proposed class, the class members have no present intention of applying for admission to the LSA. Consequently, the proposed class faces no imminent threat of future injury because the class is composed solely of past applicants to the LSA. Thus, the proposed class is not an injunctive class because it can neither seek nor obtain injunctive relief.

D. Even If The Purported Class Had Standing To Seek Injunctive Relief, Certification Under Rule 23(b)(2) Would Still Be Unnecessary.

Even if the proposed class had standing to seek injunctive relief, which it does not, and even if the class’s claims for declaratory or injunctive relief predominated over its damages claims, which they do not, there still would be no reason to certify this class under Rule 23(b)(2). The Sixth Circuit has ruled that where an adjudication of an individual plaintiff’s claim will provide the class with whatever injunctive relief it is entitled to receive, there is no reason for a class to be certified. See Craft v. Memphis Light, Gas & Water Div., 534 F.2d 684, 686 (6th Cir. 1976), aff=d, 436 U.S. 1 (1978). This is precisely such a case.

The LSA College and the University of Michigan as a whole are deeply committed to achieving diversity in the student body. Defendants firmly believe that the Supreme Court was correct in stating that institutions of higher education have a “substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.” Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 320 (1978). ⁵ Defendants will vigorously defend against this lawsuit. See Response to First Amended Motion to Intervene (filed Feb. 24, 1998).

At the end of the day, however, defendants will of course respect the results of the judicial process. If it is ultimately determined that the educational interest in achieving a diverse student body does not justify the consideration of race in the admissions process, defendants would comply with that judgment. Cf. Bakke, 438 U.S. at 318-19 (“good faith [of university officials] would be presumed in the absence of a showing to the contrary”). Accordingly, any future applicant who would benefit from any injunctive relief this Court might order, would receive that same benefit (the opportunity to be considered for admission under a system that did not consider race as a factor) without a class action simply by virtue of having plaintiff Gratz’s and plaintiff Hamacher’s individual claims for damages adjudicated on the merits. Thus, class certification is unnecessary.

The Sixth Circuit recognized exactly this principle in Craft, where it found that class certification was inappropriate because “no useful purpose would be served by permitting this case to proceed as a class action,” Craft, 534 F.2d at 686. As another district court in the Sixth Circuit has observed, “[t]he rule in this circuit seems to be well-settled that certification of an action as a class-action under Rule 23(b)(2), is inappropriate where the injunctive and declaratory relief sought, to the extent granted, would automatically accrue to the benefit of the class members.” Green v. Williams, 94 F.R.D. 238, 241 (E.D. Tenn. 1980). ⁶

While plaintiffs may argue that a class action is required because of the possibility that plaintiffs’ claims will moot out, it is only plaintiffs’ purported claims for injunctive relief that could become moot. As explained above, because the plaintiffs and their “class” would receive the benefit of any injunction by litigating the damages claim on the merits, this concern is misplaced. In fact, certifying plaintiffs’ class would simply “complicate, delay, and prejudice” the adjudication of the underlying legal issues. See Plaintiffs’ Memorandum In Opposition To Motion To Intervene (filed Feb. 22, 1998) at 18.

CONCLUSION

For the foregoing reasons, defendants submit that the plaintiffs’ proposed class should not be certified as a class action.
_______________________________________
Footnotes:

¹ The Sixth Circuit recently emphasized that a “district court may not certify any class without (rigorous analysis' of the requirements of Rule 23.” Sprague v. General Motors, Corp., 133 F.3d 388, 397 (6th Cir.)(en banc), cert. denied, 118 S. Ct. 2312 (1998). To be certified, each class must satisfy all four prerequisites of Rule 23(a) and fall into at least one of the categories described in Rule 23(b). Id. Rule 23(a) requires the named plaintiff to establish numerosity, commonality, typicality, and representativeness. See Fed. R. Civ. Proc. 23(a). The failure of the class described by plaintiffs to satisfy the requirements of 23(b) requires that class certification be denied. Defendants preserve their arguments regarding plaintiffs“ failure to satisfy the Rule 23(a) requirements.

² Recent Supreme Court precedent has emphasized the requirement that “allegations of future injury be particular and concrete.” Steel Co. v. Citizens for a Better Env’t, 118 S. Ct. 1003, 1020 (1998). And as the Supreme Court reiterated, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 & n.2 (1992), only those who face an imminent threat of unlawful conduct have standing to seek injunctive relief. As in Lujan, “imminence” is “stretched beyond the breaking point when, as here, the plaintiff[s] allege[] only an injury happen at some indefinite future time, and the acts necessary to make the injury are at least partly within the plaintiff[s’] own control. In such circumstances, we have insisted that the injury proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all.” Id. See also id. at 564 (“Such >some day= intentions -- without any description of concrete plans, or indeed even any specification of when the some day will be -- do not support a finding of the >actual or imminent’ injury that our cases require.”) (emphasis in original); Brunet v. City of Columbus, 1 F.3d 390, 396 (6th Cir. 1993) (“If the injury is not actual, but imminent, the plaintiff cannot simply allege possible injury at some indefinite, future time.”).

³ Unlike the typical 23(b)(1)(A) case, this case is not a situation where the government is required to afford “unitary treatment” -- without consideration of individual circumstances -- to an entire class. See 5 J. Moore, Moore’s Federal Practice '' 23.41[2][a] & [4] at 23-156 & 159 (3d ed. 1995) (certification under 23(b)(1)(A) may be appropriate, even if separate suits would not leave the party “unable to comply with one judgment without violating the terms of another judgment,” where the party opposing the class must provide Aunitary treatment@ to all class members).

⁴ The predominance of plaintiffs’ claims for compensatory damages distinguish this case from other civil rights actions, where certification under Rule 23(b)(2) is generally proper. See Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976). In the typical employment civil rights action where a plaintiff class is seeking equitable relief, such as back pay (which is a form of equitable restitution, see United States v. Burke, 504 U.S. 229, 238-39 (1992)), class treatment under Rule 23(b)(2) is generally appropriate. Because plaintiffs’ suit is one for legal compensatory and punitive damages, it is wholly unlike the typical suit challenging “class-wide discrimination” for which treatment under Rule 23(b)(2) is “particularly well suited.” Senter, 532 F.2d at 525.

⁵ As defendant Bollinger and Provost Nancy Cantor observed elsewhere, this lawsuit “is at the center of a great public debate over one of the most important issues of our time: how our governing constitutional principles permit us to use race to achieve a truly integrated society.” Lee Bollinger and Nancy Cantor, The Educational Importance of Race, Wash. Post (Apr. 28, 1998) at A17; see also Statement of Dean Jeffrey S. Lehman, University of Michigan Law School (this case is part of a “nationwide campaign to change the way the Constitution is applied to universities”) (available at http://www.law.umich.edu/lawsuit/statement.htm).

⁶ See also Gray v. International Brotherhood of Elec. Workers, 73 F.R.D 638, 640-41 (D.D.C. 1977) (“[T]here exists no need for this case to be certified as a class action. This Court has consistently and emphatically adhered to the view that when, as here, the relief being sought can be fashioned in such a way that it will have the same purpose and effect as a class action, the certification of a class action is unnecessary and inappropriate. This view . . . has now become a well-settled rule employed by numerous district courts, discussed by at least one commentator, and recognized by several circuit courts of appeal.”) (citing, inter alia, the Sixth Circuit’s opinion in Craft; other quotations, citations and footnotes omitted); Spirt v. Teachers Ins. & Annuity Ass’n, 416 F. Supp. 1019, 1024-25 (S.D.N.Y. 1976) (same).


Respectfully submitted,

_______________________________________
John Payton
Jane Sherburne
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000

AND

_______________________________________
Leonard M. Niehoff
   P36695
BUTZEL LONG
350 South Main Street, Suite 300
Ann Arbor, MI 48104
(313) 213-3625

Of Counsel:

John H. Pickering
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000

Dated: September 14, 1998

CERTIFICATE OF SERVICE

I hereby certify that on this 14th day of September, 1998, true and correct copies of the foregoing Defendants’ Opposition to Plaintiff’s Motion To Certify a Class Action and to Bifurcate Liability From Damages were served by first–class mail on:


Respectfully submitted,

David F. Kerr, Esq.
Kirk Kolbo, Esq.
Maslon, Edelman, Borman & Brand
3300 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402

Michael E. Rosman, Esq.
Michael P. McDonald, Esq.
Hans F. Bader, Esq.
Center for Individual Rights
1233 20th Street, N.W.
Washington, D.C. 20036

Kerry L. Morgan, Esq.
Pentiuk, Couvreur & Kobiljak, P.C.
Suite 230, Superior Place
20300 Superior Street
Taylor, MI 48180

_________________________________
                Craig Goldblatt

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

_________________________________________
JENNIFER GRATZ, et al.,

             Plaintiffs

     v.

LEE BOLLINGER, et al.,

             Defendants,
_________________________________________

)
)
)     Civil Action No. 97-75231
)
)     Hon. Patrick Duggan
)
)     Hon. Thomas A.Carlson
)
)
)
)

EXHIBITS TO MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR ORDER DENYING CLASS CERTIFICATION

A. Plaintiff Jennifer Gratz’s Objections and Answers to Defendants’ First Set of Interrogatories (served Feb. 13, 1998)

B. Plaintiff Patrick Hamacher’s Objections and Answers to Defendants’ First Set of Interrogatories (served Feb. 13, 1998)

C. Grutter: Plaintiff's Motion for Class Certification and for Bifurcation of Liability and Damages Trials

D. Grutter: Defendants’ Opposition to Plaintiff’s Motion to Certify A Class Action and to Bifurcate Liability from Damages

Gratz briefs – Table of Contents