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Anderson v. Jackson, No. 07-31008 (5th Cir. Dec. 30, 2008); Lewis v. Asplundh Tree Expert Co., No. 08-11771 (11th Cir. Dec. 30, 2008); Tsai v. Maryland Aviation, No. 07-1511 (4th Cir. Dec. 31, 2008)

| Jan 4, 2009 | Daily Developments in EEO Law |

Leftovers from year’s end 2008. The Fifth Circuit tosses class certification (in a post-Katrina case) on a ground heretofore unknown — to me, anyway — that the “the district court abused its discretion by certifying a class based on claims not pleaded in the complaint.” Also, the Fourth and Eleventh Circuits come to different conclusions in two unpublished Title VII decisions about whether the district court erred in dismissing the cases without formally converting the motions to dismiss into motions for summary judgment under Fed. R. Civ. P. 56(c).

Anderson v. Jackson, No. 07-31008 (5th Cir. Dec. 30, 2008):  The court summarized the factual allegations of the lawsuit —

“Following Hurricane Katrina, HANO [the Housing Authority of New Orleans] planned to demolish and redevelop four deteriorated, storm-damaged public housing developments in New Orleans: B.W. Cooper, C.J. Peete, St. Bernard, and Lafitte (collectively known as ‘the Big Four’). . . . A group of displaced residents of the Big Four (the ‘Residents’) filed this lawsuit prior to HUD’s approval of the demolition plan, alleging that HANO and HUD’s failure to repair and reopen the Big Four violated the Fair Housing Act (42 U.S.C. § 3608) (the “FHA”), the U.S. Housing Act of 1937 (42 U.S.C. § 1437p), the HANO lease agreements, the Louisiana Civil Code, and the Fifth and Fourteenth Amendments of the U.S. Constitution. The Residents’ complaint asserted that HANO and HUD’s actions constituted race discrimination against displaced African American tenants.”

The district court dismissed several of the claims and declined to certify the residents as a single class, but certified a smaller class, defined as

[A]ll African-American citizens of the United States who resided in public housing developments in New Orleans, Louisiana, as of August 29, 2005, pursuant to a lease with the defendant Housing Authority of New Orleans who are involuntarily displaced as a result of this Hurricane Katrina who received vouchers or other forms of rental assistance from HUD or HANO and/or HANO’s pursuant to HUD’s regulations and which rental assistance did not provide for utility assistance leading to a disparity on how they were treated before Katrinas well as post-Katrina.

The Fifth Circuit accepted interlocutory appeal of the class pursuant to Fed. R. Civ. P. 23(f) and vacated the certification, solely on the ground that the “Residents’ complaint lacks any allegations regarding the  administration of the voucher program.”  As the panel briefly explained:

“Under Rule 8(a), a complaint must do more than name laws that may have been violated by the defendant; it must also allege facts regarding what conduct violated those laws. Id. In other words, a complaint must put the defendant on notice as to what conduct is being called for defense in a court of law. Here, the complaint does not mention the voucher program or reference the defendants’ conduct in administering the voucher program. Rather, the claims pleaded in the complaint are based on a totally different course of conduct-HANO and HUD’s actions leading up to demolition, the ultimate decision to demolish the buildings, and the demolition itself. These claims are not sufficient to put HANO and HUD on notice that they must defend the voucher program. Essentially, by defining the class based on treatment under the voucher program and limiting the class claims to those regarding the voucher program, the district court changed the nature of the lawsuit and rendered the complaint inadequate.”

I had supposed that the remedy for an insufficient complaint was to move to dismiss under Fed. R. Civ. P. 12(b)(6) or perhaps move for a more definite statement under Rule 12(e).  Never did I suppose, until now, that the defendants could wait until class certification to complain about the adequacy of the allegations. 

This seems, to me, the invention of a pure formality that is completely extrinsic to Rule 23. The opinion even acknowledges that “this problem may be remedied on remand by allowing the Residents to amend their complaint” (though noting that the plaintiffs had, in the year since the certification, not yet moved for leave to amend).  I resent the opening of yet another front in the assault on civil rights, class action lawsuits.  This decision also serves as a caution to district court judges that their equitable power to conform the class definition and subclass under Rule 23 may be hemmed in by the allegations of the complaint.

Lewis v. Asplundh Tree Expert Co., No. 08-11771 (11th Cir. Dec. 30, 2008):  The Eleventh Circuit enforces a virtual per se rule of vacating and reversing any dismissal that violates the notice requirements of Fed. R. Civ. P. 56(c) (i.e., that a summary judgment “motion must be served at least 10 days before the day set for the hearing”).  If a Rule 12(b)(6) motion includes materials from outside the pleading, such as affidavits, the court may only consider such materials by giving notice to the non-movant that it intends to convert the motion to summary judgment.  Notice gives the non-movant an opportunity to respond to the motion with cross-materials and legal arguments tailored to the standards of Rule 56.  A court that fails to give such notice, at least in the Eleventh Circuit, faces reversal.

And so, here, the district court considered materials attached to the employer’s motion to dismiss (including a declaration and correspondence) that argued that it was deprived of an opportunity to conciliate the EEOC charge.  By considering the materials and granting the motion, the Eleventh Circuit held that the district court violated the notice requirement of Rule 56(c). “Formalistic though they may be, ‘[p]roper procedures must be followed’ when motions to dismiss are converted to motions for summary judgment. [Citation omitted.]  We hold  . . . that the district court’s consideration of matters outside of the pleadings converted the City’s motion to dismiss regarding Lewis’s Title VII claims into one for summary judgment and that the required notice was not provided.”

Tsai v. Maryland Aviation, No. 07-1511 (4th Cir. Dec. 31, 2008):  Yet in the Fourth Circuit, another panel affirms dismissal, finding that the employee had enough notice from the caption of the motion that the defendant sought summary judgment and required no addition al notice from the district court: 

“MAA captioned its motion as a ‘Motion to Dismiss, or in the Alternative, Motion for Summary Judgment,’ and attached seven exhibits. Mr. Tsai captioned his opposition ‘Plaintiff’s Memorandum of Points and Authorities In Opposition To Defendant’s Motion to Dismiss or For Summary Judgment,’ (emphasis added), and attached the EEOC record as an exhibit to his memorandum. He cannot plausibly argue that he lacked notice that MAA was moving for summary judgment, given that he acknowledged as much in the title of his responsive pleading and even put addition al evidence before the court of his own volition.”

Thus “the district court here did not need to ‘convert’ the motion into one for summary judgment because defendant already had made such a motion and plaintiff had responded by attaching the complete EEOC record.”

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