Weathers v. Peters Realty Corporation

• Decision Date: 05 July 1974
• Docket Number: No. 73-1950.,73-1950.
• Citation: 499 F.2d 1197
• Parties: Dorothy WEATHERS, Plaintiff-Appellant, v. PETERS REALTY CORPORATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

499 F.2d 1197 (1974)

Dorothy WEATHERS, Plaintiff-Appellant, v. PETERS REALTY CORPORATION et al., Defendants-Appellees.

No. 73-1950.

United States Court of Appeals, Sixth Circuit.

Argued April 18, 1974.

Decided July 5, 1974.

Richard Brudzynski, Avery S. Friedman, Cleveland, Ohio, for plaintiff-appellant.

Stanley D. Gottsegen, Gottsegen, Tucker & Blake, Cleveland, Ohio, for defendants-appellees.

Before PHILLIPS, Chief Judge, and MILLER and LIVELY, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

The named plaintiff, Dorothy Weathers, a black person, filed the present class action against the defendants, Peters Realty Corporation and others, "on behalf of herself and all other black citizens of the United States who have been or will be seeking housing" at a thirteen rental suite apartment building owned by the Peters Realty Corporation in Cleveland Heights, Ohio.

The complaint sought injunctive relief and also monetary damages in the amount of $10,000 compensatory damages and $10,000 punitive damages for "the Plaintiff and the class she represents."

The genesis of the action occurred when the plaintiff visited the defendants' apartment building to inquire about renting an apartment suite and was told by Mrs. Dailey, wife of the apartment's custodian, that no suites were available. The plaintiff apparently had prior information about the pending availability of suite No. 1 in the apartment. She testified that she obtained the information from a Mr. Niermann, a friend of hers. Prior to the plaintiff's visit, Niermann and his wife, who are white, visited the apartment building, ostensibly seeking to rent a suite, and obtained a promise from Mrs. Dailey to hold for them the No. 1 suite which was about to be vacated. Niermann, obviously timing his call immediately to precede the plaintiff's visit to the apartment, telephoned Mrs. Dailey, according to his testimony, to withdraw his previously expressed interest in suite No. 1. After the plaintiff's visit, a Mr. and Mrs. Lind, a white couple and friends of the plaintiff and the Niermanns, visited the apartment, also to inquire about the availability of a suite. The Linds were shown suite No. 1 by the Daileys. There is testimony to indicate that they told the Linds of the Niermanns' interest in the suite, but nevertheless offered it for rental to them.

Following the institution of the present action, the defendants offered to rent an apartment suite to the plainiff under the same terms and conditions as extended to the previous tenant who was white. Plaintiff declined the offer.

After conducting a hearing on the plaintiff's request for injunctive relief, the district court dismissed the action at the plaintiff's cost. The dismissal order was based on four conclusions: (1) That the class aspect of the plaintiff's action was without support in fact and failed to meet the minimal requirements of Rule 23, Fed.R.Civ.P.; (2) That the plaintiff's motion for preliminary and permanent injunctive relief was mooted by virtue of the defendants' offer to lease the apartment suite to the plaintiff and her subsequent rejection of the offer; (3) That the plaintiff's charges of racial discrimination were discredited by the uncontroverted evidence that the apartment house is and has been integrated with a 23% minority occupancy; and (4) That the sale by an operating officer of Peters Realty (Ralph Peters) of his private residence to a black family and his continued residency on the same street at a newly acquired home would further "mitigate" sic militate against charges of racial discrimination.

The district court's holding that the complaint and the evidence presented at the injunction hearing were insufficient to sustain a class action was premature. Rule 23(a) Fed.R.Civ.P. provides:

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all 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.

The district court cited Cash v. Swifton, 434 F.2d 569 (6th Cir. 1970), and Pegues v. Bakane, 445 F.2d 1140 (5th Cir. 1971) to support its finding that the plaintiff had failed to meet these prerequisites for maintaining a class action. Since these two cases dismissed class actions because of a failure of the plaintiff to meet the numerosity requirement of Rule 23(a), we must assume that this was the same flaw that the district court in this case found in the plaintiff's action. In civil rights cases of the nature of the present case, the numerosity requirement is usually satisfied by the showing of a colorable claim by the named plaintiff who is a member of a larger class having potentially similar claims. See Wright and Miller, 7 Federal Practice and Procedure Sec. 1762 (1972). Although the district court has broad discretion in determining whether a particular action complies with Rule 23(a), by meeting all four requirements, the application of these requirements should not be so strictly applied that the policies underlying class actions would be undermined. The plaintiff made allegations that she was discriminated against because of her race. She also alleged that there are others of her race "who are, have been or will be seeking housing" at the defendants' property.

It is true that an action is not maintainable as a class action merely because it is designated as such in the pleadings. See generally, 3B Moore, Federal Practice, Par. 23.02-2, 230.5 (2d 1969). Mere repetition of the language of Rule 23(a) is not sufficient. There must be an adequate statement of the basic facts to indicate that each requirement of the rule is fulfilled. Maintainability may be determined by the court on the basis of the pleadings, if sufficient facts are set forth, but ordinarily the determination should be predicated on more information than the pleadings will provide. Huff v. N. D. Cass Co. of Alabama, 485 F.2d 710 (5th Cir. 1973). The district court conducted a preliminary hearing focused on the requested preliminary injunctive relief. The parties should be afforded an opportunity to present evidence on the maintainability of the class action. In making this determination the district court must in addition to applying the prerequisites of 23(a) ascertain if the class comes within one of the three categories of Rule 23(b). In this case, from the pleadings and the nature of the case itself, the plaintiff's class appears to be, if it qualifies as a class at all, a 23(b)(2) class. Rule 23(b)(2) provides:

the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

In attempting to define a (b)(2) class, it should be noted that the category may in some instances be quite broad in scope. The nature of the primary relief sought in this category, injunctive or declaratory relief, does not require that the class be as narrowly confined as under either (b)(1) or (b)(3). Of course some or all of the members of a (b)(2) class may seek additional relief, for example, monetary damages, as the present plaintiff has done. When monetary damages are sought the reasons that district courts may see fit to confine the class more narrowly are, first, to protect the defendant in preparing his defenses against various damage claims, and second, to make the disposition of the class action more manageable since the evidence as to individual claims may vary widely in scope and character. If both injunctive or declaratory relief, and monetary damages are sought, it is permissible under Rule 23(c)(4) to have sub-classes. All sub-classes must meet the same requirements as a class. But the practical differences between the members of the class seeking injunctive or declaratory relief and those members seeking monetary damages in addition, may make the division into sub-classes necessary in some cases. See Wright and Miller, 7 Federal...