Tardiff v. Knox County, Civil No. 07-10-P-H.

• Decision Date: 29 July 2008
• Docket Number: Civil No. 07-10-P-H.
• Citation: 567 F.Supp.2d 201
• Parties: Laurie TARDIFF, Plaintiff v. KNOX COUNTY, et al., Defendants.
• Court: U.S. District Court — District of Maine

567 F.Supp.2d 201

Laurie TARDIFF, Plaintiff v. KNOX COUNTY, et al., Defendants.

Civil No. 07-10-P-H.

United States District Court, D. Maine.

July 29, 2008.

COPYRIGHT MATERIAL OMITTED

William D. Robitzek, Paul F. Macri, Berman & Simmons, P.A., Lewiston, ME, for Plaintiff.

Peter T. Marchesi, William Gagne Holmes, Wheeler & Arey, P.A., Waterville, ME, for Defendants.

Sumner H. Lipman, Lipman, Katz & McKee, Augusta, ME, for Interested Party.

DECISION AND ORDER ON SUMMARY JUDGMENT PART I: GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON THE DEFENDANTS' AFFIRMATIVE DEFENSES AND COUNTERCLAIMS, BUT DENYING IT WITH REGARD TO THE PRECLUSIVE EFFECTS OF THE PRIOR CLASS ACTION LITIGATION

D. BROCK HORNBY, District Judge.

In February 2001, the plaintiff was arrested for witness tampering and taken to the Knox County Jail. There, a corrections officer performed a strip and visual body cavity search. The plaintiff's claim against Knox County for violation of her constitutional rights proceeded initially as part of a class action, with the plaintiff as the named class representative. Dissatisfied with the settlement agreement ultimately reached in the class action, the plaintiff opted out and then filed this separate suit under 42 U.S.C. § 1983.

The parties filed cross-motions for summary judgment that raise numerous legal issues resulting from the prior class action proceedings that are independent of the merits of the § 1983 claim. For ease of organization and understanding, I address the issues resulting from the prior class action in this opinion (Part I). I Will address the merits of the plaintiff's substantive claim that Knox County violated her Fourth Amendment rights in a separate opinion (Part II).

With regard to the prior class action proceedings, the plaintiff's motion for summary judgment presents two unusual issues.

1. Does a class action representative implicitly waive her individual rights as a class member when she signs a settlement agreement? I conclude that the answer is no. A contractual waiver of the individual rights granted by Fed.R.Civ.P. 23 must be explicit. Thus, summary judgment is GRANTED to the plaintiff on the defendants' counterclaims and affirmative defenses that are based on the class action's settlement.

2. Can the named class representative, in a federal class action that settles, later opt out of the class action and settlement, and bring her own separate lawsuit? I conclude that the answer is yes. But when she does so, she cannot successfully claim issue preclusion (collateral estoppel) and certain other benefits from court decisions or litigation decisions made in the class action. The plaintiff's request for summary judgment on the merits based on decisions reached in the class action litigation is therefore DENIED.

FACTUAL & PROCEDURAL BACKGROUND

(1) The Arrest and Search

The plaintiff Laurie L. Tardiff ("Tardiff") was arrested on February 7, 2001, on a charge of witness tampering, a felony under the Maine Criminal Code. She was then brought to Knox County Jail. There, a Knox County correctional officer performed a strip and visual, body cavity search.

(2) The Class Action

Tardiff initially was the named class representative in a class action in this District challenging Knox County's strip and visual body cavity search policy. See Dare v Knox County, Docket No. 02-251 (D.Me.).¹ The First Circuit affirmed Judge Gene Carter's certification of a litigation class. Tardiff v. Knox County, 365 F.3d 1 (1st Cir.2004). Later, on partial summary judgment, Judge Carter held that Knox County's blanket policy—that all felony arrestees were subject to a strip and visual body cavity search—was unconstitutional under the Fourth Amendment as applied to arrestees charged with only a nonviolent, non-weapon, non-drug-related felony. See Tardiff, 397 F.Supp.2d 115, 128-131 (D.Me.2005).² As the case approached trial, however, Judge Carter decertified the class with regard to damages. See Tardiff, 2006 WL 2827556 (D.Me. Sept.19, 2006).

After Judge Carter's summary judgment and decertification of the damage class, the parties participated in a settlement conference overseen by Judge George Z. Singal on September 29, 2006. Tardiff attended along with class counsel (three lawyers). PI. Laurie L. Tardiff's Statement of Material Facts, ¶¶ 24-25 (Docket Item 105) ("Pl.'s SMF"); Defs.' Response to Statement of Facts and Statement of Additional Facts, ¶¶ 24-25 (Docket Item 121) ("Defs.' SMF").³ Knox County was represented at the conference by six lawyers and four other representatives. PL's SMF ¶ 26; Defs.' SMF ¶ 26. At the conference, the parties signed a one-page, two-paragraph document:

Settlement Agreement

The parties hereby agree to settle this case in exchange for Defendants establishing a common fund of Three Million Dollars ($3,000,000.00), said amount to include all attorneys' fees and costs incurred, as well as all claims administration expenses. The parties agree that counsel for Plaintiff will seek to recover 30% of this fund to cover their fees and costs. The parties agree that they will jointly move for re-certification of the class only for purposes of facilitating settlement and disbursing the balance of the above common fund to qualifying class members.

This settlement is subject to the approval of both the County and the Risk Pool. It is understood that Defense counsel will be recommending approval and that the necessary meetings and votes by both entities will occur before 1 PM on Monday, October 2, 2006. Subject to obtaining this approval, the parties agree that the final settlement agreement presented to the Court for approval will utilize provisions and procedures found in the Amended Settlement Agreement approved in Nilsen v. York County (02-CV-212-P-H). The parties will file their final written agreement along with a motion to re-certify the class on or before Tuesday, October 3, 2006.

Pl.'s SMF, Ex. O ("September 29 Agreement" or "Agreement"). Before signing the Agreement, class counsel inquired whether it mattered to Knox County what percentage of the $3 million settlement Tardiff would receive. Defs.' SMF ¶ 63; Pl.'s Response to Defs.' SMF, ¶ 63 (Docket Item 144) ("Pl.'s Resp. SMF"). Knox County's counsel responded that it did not matter. Defs.' SMF ¶ 63; Pl.'s Resp. SMF ¶ 63. Sumner Lipman (listed as "Counsel for Plaintiff), Laurie Tardiff (listed as "Plaintiff Laurie Tardiff Class Representative"), and Peter Marchesi (listed as "Counsel for Defendant York County" and "Counsel for Defendant Sheriff Davey") then all signed the Agreement. Pl.'s SMF ¶¶ 33-34, 36 & Ex. O; Defs.' SMF ¶¶ 33-34, 36. When Tardiff signed the Agreement, she believed that her actual damages would come from the $3 million settlement fund and that she would not opt out. Defs.' SMF ¶ 71; Pl.'s Resp. SMF ¶ 71.

On October 2, 2006, Judge Carter was notified that a settlement had been reached, indicating that Knox County and the Risk Pool approved the September 29 Agreement.

On October 6, 2006, Tardiff wrote a letter to Judges Carter and Singal expressing her unwillingness to adhere to the settlement terms:

I am not in agreement of the settlement letter on Sept 29th.... I initially signed this off but with an assumption that my lgal [sic] reps would make sure that part of that settlement would cover my damages. At this time I am not signing off in this settlement until there is an agreement in place for my monetary damages individually as well as the class representative.

Pl.'s SMF, Ex. R. A proposed "Final Settlement Agreement" was submitted to the court on October 10, 2006. Tardiff and counsel for both parties appeared before Judge Carter on October 11, 2006, to discuss the terms of that proposed settlement. During that conference of counsel, Judge Carter stated: "It's obvious to me that there is no agreement to all of the essential terms of the settlement of this case. I'm intrigued by the possibility that after all of this effort both counsel seem to think that there's a possibility that agreement can be achieved." Pl.'s SMF ¶ 40; Defs.' SMF ¶ 40.⁴

Thereafter, Judge Carter refused to approve a $50,000 payment out of the settlement to Tardiff for her service as class representative. Dare v. Knox County, Order on Motion for Approval of Class Settlement, Docket No. 02-251, at 2-3 (D.Me. Oct. 24, 2006). He granted Tardiff's motion to withdraw as class representative on October 24, 2006. See Pl.'s SMF ¶¶ 42-43; Defs.' SMF ¶¶ 42-43.

The class action parties continued to wrangle over the settlement terms. Judge Carter denied the first motion for preliminary approval of the settlement, in part because it did not include a second opportunity for putative class members to opt out.⁵ See Dare, Order on Motion for Approval of Class Settlement, at 2-3 (D.Me. Oct. 24, 2006). At another hearing on November 27, 2006, Judge Carter told the parties: "It's my position that there was no enforceable agreement ever formed because, (A) the parties never agreed to all the essential terms, and (B) I never approved it.... [The Agreement] doesn't bind anybody. There's nobody in this room that's bound by it or out there in the class." Pl.'s SMF ¶ 44; Defs.' SMF ¶ 44. A new proposed settlement that permitted "[a]ll putative class members" a new right to opt out received preliminary approval on December 18, 2006. See Dare, Order on Motion for Approval of Third Final Class Settlement Agreement, Docket No. 02-251, at 3 (D.Me. Dec. 18, 2006).

On January 10, 2007, Tardiff formally notified the class administrator that she opted out of the class. Pl.'s SMF ¶ 47; Defs.' SMF ¶ 47. Knox County did not object to Tardiff's request to opt out. On April 24, 2007, Judge Carter gave final approval to the class action settlement. Pl.'s SMF ¶ 49; Defs.' SMF ¶ 49.

(3) Procedural Posture of this Proceeding

On February 1, 2007, Tardiff filed this lawsuit under 42 U.S.C. § 1983, solely on her own behalf, against Knox County and ...