Plaintiffs' Motion for Class Certification and for Bifurcation in Gratz, Argument I.B.---Class Fits Within Rule

Plaintiffs' Motion for Class Certification and for Bifurcation in Gratz

B. The Proposed Class Fits Squarely Within Rule 23(b)(1) & (2)

When the prerequisites of Rule 23(a) are satisfied, an action may be maintained as a class action when it qualifies under any one of three conditions set forth in Rule 23(b). An action can qualify and be certified under more than one of the Rule 23(b) scenarios. See, e.g., Mertz v. Harris, 497 F. Supp. 1134, 1139 (S.D. Tex. 1980) (certifying class under Rules 23(b)(1) & (2)); Dale Electronics, Inc. v. R.C.L. Electronics, Inc., 53 F.R.D. 531, 536-37 (D.N.H. 1971) (class certified under Rules 23(b)(1) & (2)); 1 NEWBERG, � 4.08. In this case, plaintiff seeks certification under both Rule 23(b)(1) & (2), or alternatively, under Rule 23(b)(3).

1. Plaintiff Hamacher's Claims Qualify for an Injunctive and
Declaratory Class Under Rule 23(b)(2)

Rule 23(b)(2) permits class certification when "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or corresponding declaratory relief with respect to the class as a whole." Fed. R. Civ. P. 23(b)(2). These elements are met in the present case. As discussed above, plaintiffs allege that defendants discriminate in a categorical manner on the basis of racial identity, and plaintiff Hamacher seeks both declaratory and injunctive relief from defendants' unlawful practices. Plaintiff Hamacher still desires to attend the LSA and would apply to transfer if defendants ceased their discriminatory practices. 3

"Lawsuits alleging class-wide discrimination are particularly well suited for 23(b)(2) treatment since the common claim is susceptible to a single proof and subject to a single injunctive

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³ Plaintiffs do not seek to have plaintiff Gratz named as a representative of a class certified under Rule 23(b)(2). Instead, plaintiffs additionally seek to have both Gratz and Hamacher certified as representatives of a Rule 23(b)(1)(B) class, or, alternatively, of a Rule 23(b)(3) class.
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remedy." Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976). This case, therefore, presents a paradigm for certification under Rule 23(b)(2). See also Amchem Products, Inc. v. Windsor. 117 S. Ct. 2231, 2245 (1997) ("[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples" of class actions permitted by 23(b)(2)); Fed. R. Civ. P. 23(b)(2) Advisory Committee's Notes (offering as an illustration of 23(b)(2) a civil rights case "where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of enumeration"); 1 Newberg � 4.11 at 4-39.

a. Plaintiff Hamacher Does not Seek Primarily Monetary

Damages

Plaintiff Hamacher seeks an order enjoining the use of illegal discriminatory admissions policies and practices. It is a singular policy and practice of illegal racial discrimination applied on a class-wide basis that plaintiff challenges in this lawsuit. That plaintiff also seeks compensatory damages is not a reason that he and the class lack entitlement to injunctive and equitable relief. Individual questions of damages would be decided in a separate proceeding that would not act as an impediment to this Court making a determination of whether class-wide injunctive and declaratory relief on the liability issue is appropriate under Rule 23(b)(2).

It is not necessary to look outside the Sixth Circuit to confirm that plaintiff may seek both injunctive relief and damages. In Jordan v. Dellway Villa of Tennessee, Ltd., 661 F.2d 588 (6th Cir. 1981), Rule 23(b)(2) was used to certify a civil rights discrimination class action that included the class members' claims for compensatory damages. See e.g., Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200-1201 (6th Cir. 1974) ("[i]f both injunctive or declaratory relief, and monetary damages are sought, it is permissible under Rule 23(c)(4) to have subclasses"). Consequently, plaintiff's ancillary request for damages and remedial relief is no bar to Rule

23(b)(2) certification and a request for injunctive and declaratory relief for himself and on behalf of the class.

b. Plaintiff and the Class Do Not Limit Their Claims to

Damages for Past Injury; The Class Includes Future

Applicants

Defendants assert that plaintiff is not even asking this Court to certify a class that includes those persons who apply in the future to defendants' law school. They are simply wrong. By pleading in the Complaint a class that includes applications made "through the date of the judgment," plaintiff is asking the Court to certify a class that includes all members over whom the Court could assume jurisdiction. Viewed from the date that class certification is being sought, it is obvious that applications through the date of the judgment necessarily include applications that have not yet been, but will be made by the time of entry of judgment. See Smith v. University of Washington Law School, No. 97-335Z, 1998 WL 199286 (W.D. Wash. April 22, 1998) (certifying injunctive class on the basis of similar motion for class certification). Moreover, plaintiffs' motion for certification makes clear that the proposed class includes those "who in the future intend to apply for admission into the LSA."

c. Plaintiff Hamacher Has Standing to Represent a Rule

23(b)(2) Class

Plaintiff Hamacher applied for and was rejected for admission into the LSA on grounds that plaintiff alleges were unlawfully discriminatory. He wants not just compensatory damages, but also an order prohibiting defendants from engaging in illegal race discrimination. See Complaint at p. 10-11. Plaintiff has made it clear in h is pleadings and in his deposition that he still desires to attend the LSA and will apply to transfer if defendants cease their illegal discriminatory practices. See Complaint at ¶27; P. Hamacher deposition at pp. 125-126 (Ex. A). Declaratory

and injunctive relief would therefore undisputably afford a "remedy" for the "actual" and continuing harm that defendants' policies have caused plaintiff. In the cases relied upon by defendants, such as City of Los Angeles v. Lyons, 461 U.S. 95 (1983), and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the absence of standing was predicated on the fact that the plaintiff could not show that any immediate remedial benefit to the plaintiffs would follow from the granting of injunctive or declaratory relief. In this case, the relief would be both immediate and concrete: an order precluding illegal discriminatory practices, thereby permitting plaintiff Hamacher and others similarly situated to apply for admission under a legal system.

It is not necessary that the victims of discrimination allege that they continue to subject themselves to an illegally discriminatory system. See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 365 (1977) ("If an employer should announce his policy of discrimination by a sign reading 'Whites Only' on the hiring-office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs"). It is sufficient that a plaintiff be ready, able, and willing to compete on a nondiscriminatory or otherwise legal basis, which plaintiff Hamacher is. See also Northeastern Florida Chapter of Associated General Contractors of America v. City of Jacksonvill, 508 U.S. 656, 658, 666 (1993); Committee for Effective Cellular Rules v. F.C.C. 53 F.3d 1309, 1320 (D.C. Cir. 1995) (potential providers of cellular telephone service who asserted that they would apply for licenses if new regulations limiting the scope of "unserved areas" were declared unlawful had standing.)

d. No Rule of "Necessity" Precludes 23(b)(2) Certification

Defendants' argument that a rule of "necessity" should preclude 23(b)(2) certification contains conspicuous flaws. Having argued earlier in their brief that plaintiff's complaint is one predominantly for damages, not injunctive relief, defendants then reverse course by relying on a discretionary rule that courts have sometimes invoked when the requested certification under Rule 23(b)(2) is confined to injunctive relief. In the principal case relied upon by defendants, Craft v. Memphis light, Gas & Water Div., 534 F.2d 684 (6th Cir. 1976) affd. 436 U.S. 1 (1978), the Sixth Circuit affirmed the district court's determination that no class action for damages was available, leaving the plaintiff with only the prospect of declaratory and injunctive class certification. Under those circumstances, the Sixth Circuit concluded that the requested relief under Rule 23(b)(2) would inure to the benefit of all those similarly situated, whether brought as an individual or class action. Cf. Greene v. City of Memphis, 535 F.2d 976, 978 n.2 (6th Cir. 1976) ("[b]ecause the complaint prays for equitable relief...rather than for damages, whether there is one, or more than one, appellant is for present purposes insignificant") (citing Craft, 534 F.2d at 685-687). Although plaintiff Hamacher primarily seeks class-wide declaratory and injunctive relief, he and the class may also be entitled to compensatory damages in a separate proceeding. Where plaintiffs see ancillary damages, the doctrine of "necessity" is inapplicable. See, e.g., Gelb v. American Tel. & Tel. Co., 150 F.R.D. 76, 79 (S.D.N.Y. 1993); Copeland v. Perales, 141 F.R.D. 11, 17 (E.D.N.Y. 1992); Luyando v. Bowen, 124 F.R.D. 52, 59 (S.D.N.Y. 1989).

Defendants glide over concerns about potential mootness by contending that plaintiff still pursue a damages claim even if his request for injunctive relief became moot.

Defendants' Memorandum at 18. Cases such as Craft, however, have clearly rested on the proposition that an injunctive class may not be necessary where the same injunctive relief obtained by an individual plaintiff would benefit the entire class. Defendants have cited no case where a plaintiff's individual action for compensatory damages alone was held to be an adequate substitute for a class-wide determination of entitlement to declaratory and injunctive relief. 4 Because only class certification will assure an adjudication on the issue of declaratory and injunctive relief-which an individual claim subject to mooting would not--the Court should grant class certification. See, e.g., Guckenberger v. Boston University, 957 F. Supp. 306, 326 (D. Mass. 1997) (certifying class action by disabled students against university) ("[s]tudents graduate, transfer, drop out, move away, grow disinterested, fall in love... All too often student-initiated disputes escape review... The class action mechanism solves this potential mootness problem"). See also Penland v. Warren County Jail, 797 F.2d 332 (6th Cir. 1986) (reversing district court denial of class certification which had been based on finding that certification was neither necessary nor a superior method for providing relief); Johnson v. City of Opelousas, 658 F.2d 1065, 1069-70 (5th Cir. 1981) ("the district court abused its discretion in denying class certification [based upon doctrine of necessity] because it failed to consider the risk of mootness in this litigation...the substantial risk of mootness...was sufficient to create a need for certification...Certification of a class under Rule 23(b)(2) is especially appropriate where, as here, the claims of the members of the class may become moot as the case progresses) cited with

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⁴ Defendants themselves make the point elsewhere in their brief when they argue "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." Defendants' Memorandum at 6. It is disingenuous for defendants to claim both that damages are different from injunctive relief and that an award of damages will necessarily accomplish the same thing as would an injunction.
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approval in Penland, 797 F.2d 332, 335; Smith v. University of Washington Law School, No. 97-335Z, 1998 WL 199286 (W.D. Wash. April 22, 1998) (rejecting defendants' argument that the court should exercise its discretion to deny certification of an injunctive class under the doctrine of necessity); 1 NEWBERG at � 4.19 at p. 4-70 ("[t]he Sixth Circuit has also rejected class denial based on need") (citing Penland).

2. Plaintiffs' Claims Also Qualify for Class Certification
Under Rule 23(b)(1)(B)

A class action may be certified under Rule 23(b)(1)(B) if the "prosecution of separate actions by or against individual members of the class would create risk of":

(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.

Federal Rule of Civil Procedure 23(b)(1)(B). The language of 23(b)(1)(B) addresses the concern of members of the plaintiff class that litigation of the named plaintiff's case may impair or impede the ability to protect the interests of the remaining members of the class. Cases, for example, where there is a limited fund from which a large class of plaintiffs seek to recover are frequently certified as a class action under Rule 23(b)(1)(B). See, e.g., In re Jackson Lockdown/MCO Cases, 107 F.R.D. 703, 711-12 (E.D. Mich. 1985); 1 NEWBERG, � 4.09, at 4-31 ("most common use of (b)(1)(B) class actions is in limited fund cases").

In this case, plaintiffs seek certification under Rule 23(b)(1)(B) in addition to certification under Rule 23(b)(2). The application of the "limited fund" rationale of Rule 23(b)(1)(B) to this case is demonstrated by a similar case involving a large class of federal retirement beneficiaries. In Moysey v. Andrus, 481 F. Supp. 850 (D.D.C. 1979), plaintiff sought to represent

a class of former federal retirees in a challenge to a reemployment practice that discriminated on the basis of age. The court granted the plaintiff's motion for class certification under both Rule 23(b)(1)(B)&(2) and noted that:

...even though [the named plaintiff], if he prevails, may eventually be competing with other class members for a limited number of federal positions, he may fairly and adequately protect the interests of the class. Suits under Rule 23(b)(1)(B) inevitably involve class representatives and class members competing or scarce, or limited, resources; the purpose of class adjudication under this provision is to present the Court with the entire matter, thereby precluding an award of individual relief which would ignore the interests of other similarly situated parties.

481 F. Supp. At 854.

That the "limited fund" rationale has application broader than to funds of money is made clear in the Advisory Notes to the rule:

...[P]roblems, however, can arise in the absence of a fund either present or potential. A negative or mandatory injunction secured by one of a numerous class may disable the opposing party from performing claimed duties toward the other members of the class or materially affect his ability to do so.

See Advisory Notes to Federal Rule of Civil Procedure 23(b)(1)(B). In this case, defendants receive approximately 14,000 applications for admission to each year's class, which is limited in number to less than 5,000 students. See Exhibits C,D and E. A determination that any one applicant was wrongfully denied admission could affect the claims of others similarly situated. Certification under Rule 23(b)(1)(B) based on the "limited fund" rationale is ideally suited to such a case.

Defendants' argument that the Sixth Circuit has only permitted 23(b)(1)(B) 'limited fund' classes on "proof of a finite monetary fund or financial asset" (Defendants' Memorandum at 12) merely begs the question whether the Rule has application in cases involving other kinds of limited assets (as Moysey holds). Nothing in any of the cases they cite suggests that 23(b)(1)(B) has no application to situations outside of, but analogous to, the "limited fund," and they do not deny that both the text of the rule and the advisory notes support other applications. Thus, defendants are reduced to arguing that there "can be no suggestion" that the Rule applies here. Defendants' Memorandum at 12.

Rule 23(b)(1)(B) is ideally suited to this case because if individual plaintiffs were to bring claims against defendants and succeed, later plaintiffs would be faced with the argument that the limited number of open slots have already been judicially-recognized as belonging to others. As a "practical matter," the rights of those later plaintiffs to relief would be "substantially impair[ed] or impede[ed]"-precisely the situation that Rule 23(b)(1)(B) contemplates and remedies.

Memorandum Argument, I.C., D.--
Plaintiffs' Certification,
Punitive Damages Claims Qualify;
II. Bifurcation is Appropriate;
Conclusion (next sections)

Memorandum
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