                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                               File Name: 05a0179p.06

                        UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                           X
                                     Plaintiff-Appellant, -
 HAZEL GOLDEN,
                                                            -
                                                            -
                                                            -
                                                                No. 03-4252
            v.
                                                            ,
                                                             >
 CITY OF COLUMBUS; CHERYL ROBERTO, Director of              -
                                                            -
                                  Defendants-Appellees. -
 Public Utilities for the City Of Columbus,

                                                            -
                                                           N
                            Appeal from the United States District Court
                           for the Southern District of Ohio at Columbus.
                         No. 01-00710—James L. Graham, District Judge.
                                           Argued: October 27, 2004
                                     Decided and Filed: April 18, 2005
                         Before: KEITH, CLAY, and BRIGHT,* Circuit Judges.
                                              _________________
                                                    COUNSEL
ARGUED: Kimberly M. Skaggs, EQUAL JUSTICE FOUNDATION, Columbus, Ohio, for
Appellant. Susan E. Ashbrook, COLUMBUS CITY ATTORNEY’S OFFICE, Columbus, Ohio, for
Appellees. ON BRIEF: Kimberly M. Skaggs, EQUAL JUSTICE FOUNDATION, Columbus,
Ohio, for Appellant. Susan E. Ashbrook, COLUMBUS CITY ATTORNEY’S OFFICE, Columbus,
Ohio, for Appellees.
                                              _________________
                                                  OPINION
                                              _________________
         CLAY, Circuit Judge. Plaintiff Hazel Golden appeals the judgment below, in which the
district court: (1) granted summary judgment to Defendants      the City of Columbus, Ohio, and the
City’s Director of Public Utilities, Cheryl Roberto1 (collectively the “City”) on Golden’s claims that


         *
           The Honorable Myron H. Bright, Circuit Judge of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
         1
            At the time Golden filed this action, the Director of Public Utilities was John Doutt. Golden sued Doutt in
his official and personal capacities. The district court dismissed the claims against Doutt in his personal capacity, a
decision Golden does not appeal. After Doutt retired, the district court substituted his replacement, Cheryl Roberto, as


                                                           1
No. 03-4252               Golden v. City of Columbus, et al.                                                     Page 2


the City’s denial of water service to tenants whose predecessors left delinquent water accounts at
the premises violates the Due Process Clause of the Fourteenth Amendment and the Equal Credit
Opportunity Act, 15 U.S.C. §§ 1691 et seq. (the “ECOA”); (2) dismissed Golden’s claim that the
same constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment; and
(3) dismissed Golden’s motion for class certification. For the following reasons, we REVERSE the
district court as to Golden’s equal protection claim and AFFIRM as to her due process, ECOA, and
class certification claims.
                                                 BACKGROUND
        Prior to 1991, the City of Columbus, Ohio, permitted both tenants and landlords to contract
for water service. Although the landlord would be ultimately liable for unpaid water bills, a tenant
could establish a water account in her own name by directly contracting with the City. In 1990,
officials at the City’s Department of Public Utilities became concerned that permitting tenants to
directly contract for water service had the effect of impeding the collection of unpaid water bills.
The City code at the time did not require either the City or the contracting tenant to notify the
landlord when an account was created, or when an account became delinquent. Landlords
complained when they were left to settle accounts they never knew were delinquent after the
nonpaying tenants had vacated. These complaints caused further delays in payment. City utilities
officials concluded that the City could better insure efficient payment of water bills if it alerted
landlords to delinquencies as they occurred.
        Utilities officials also lamented the fact that the City code did not authorize the City to deny
service at premises encumbered by delinquent accounts. If a tenant vacated an apartment, leaving
a delinquent account, the code nevertheless permitted a new tenant to move in and establish a new
water account, even if the landlord had not yet satisfied the delinquency. Officials concluded that
this frustrated bill collection by depriving the City of its most effective bill collection tool. With
these problems in mind, the Columbus City Council amended the code in 1991. As amended, the
pertinent sections now read:
         The [City] will directly bill a tenant for water and sewer service if the property
         owner, or authorized agent of the property owner, along with the tenant, sign a
         written agreement authorizing direct billing of the tenant. Once a written agreement
         is signed, the [City] will simultaneously mail, to both the owner and the tenant,
         copies of any bills and notices concerning delinquent water and sewer charges. . . .
         Direct billing of a tenant shall be in no way construed as to relieve the owner of the
         real estate premises of liability for water and sewer service charges. No direct billing
         of a tenant will be allowed where all delinquent water and sewer charges are not paid
         in full up until the date the direct billing agreement is accepted by the [C]ity, or
         where water or sewer service has been terminated for real estate premises.
Columbus City Code §§ 1105.045(D), (E) (the “policy” or “City’s policy”).
      Plaintiff Hazel Golden moved into a single-family residence at 2209 Hamilton Avenue in
Columbus in either October or December of 2000.2 The lease between Golden and her landlord,


a defendant pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
         2
           The record is unclear as to precisely when Golden moved in. In her deposition, Golden said that she moved
in “[a]pproximately October of 2000.” (J.A. at 662.) Yet the lease between Golden and her landlord is dated December
17, 2001. Id. at 687. This date cannot be correct since Golden’s claims all relate to terminations of water service at the
2209 Hamilton Avenue residence during early 2001. Adding to the confusion, the City cites October 2000 as the date
No. 03-4252            Golden v. City of Columbus, et al.                                          Page 3


David Matthews, states that the tenant is responsible for the payment of all utilities. However,
according to Golden, her rent included water service while she was to pay separately for gas and
electricity. At the time Golden began renting from Matthews, he was party to a direct billing
agreement with the prior tenant, Sarah Dean, which Dean and Matthews had entered into pursuant
to the City’s policy.
         Starting in late December 2000, the City began sending bills and notices to 2209 Hamilton
Avenue addressed to “Sarah E Dean.” On December 28, 2000, the City sent a Notice of
Delinquency for service provided to Sarah Dean between August 10, 1999 and November 7, 2000.
This was followed on February 12, 2001, by a Water Turn-Off Notice; on February 16, 2001, by a
bill; on February 22, 2001, by another bill; and on March 8, 2001, by termination of water service
to the residence. Service recommenced on March 9, 2001, at the request of the City’s Code
Enforcement department. Golden alleges that she contacted Code Enforcement after first contacting
the City, which explained to her that under the policy, water service would not be restored until the
account was paid. This pattern repeated itself during March and early April, with the City again
terminating water service on April 9, 2001, and recommencing it the next day at the request of Code
Enforcement. The City terminated service for a third time on April 23, 2001. Golden maintains that
the termination permanently deprived her of water service while the City maintains that it
recommenced service on May 9, 2001 without interruption until October 2001 when Golden moved
out.
        Each of the mailings sent to Golden’s residence during the period December 2000 through
May 2001 arrived in an enveloped marked “THIS IS YOUR WATER BILL.” See J.A. at 157, 161.
Each notice of delinquency and turn-off notice explains that customers have a right to request a
hearing to contest the termination of service but this information is printed on the notice itself, not
on the envelopes. The City’s Water Customer Service Coordinator, Susan Young, stated in an
affidavit that on February 2, 2001, the City sent a bill or a notice addressed to “Water Customer.”
J.A. at 158. The City does not dispute that all other bills and notices were addressed to “Sarah E
Dean.”
         Matthews and Golden signed a direct billing agreement on March 16, 2001. Golden
maintains that she sent the agreement to the City but received no response. J.A. at 737-38 (Golden
Depo.). In any event, Matthews apparently did not pay the balance Dean owed – which would have
been necessary to make Golden eligible for direct billing under the policy – and the record reflects
that bills and notices sent after March 16, 2001 were still addressed to Dean. See J.A. at 158-75.
Finally, Golden admits that the City left a notice of shut-off on her door contemporaneous with
terminating service but alleges that the notice did not inform her of a right to contest the termination
of service.
                                     PROCEDURAL HISTORY
         On July 25, 2001, Golden and an earlier plaintiff, Nikki Mara, filed a class-action complaint
in district court. The complaint, brought under 42 U.S.C. § 1983, alleged that the City’s practice
of terminating tenants’ water service without notice and the possibility of a hearing amounted to a
denial of tenants’ Fourteenth Amendment right to procedural due process. The complaint further
alleged that the City’s policy, which denies water service to premises encumbered by delinquent
accounts, violated tenants’ rights under the Equal Protection Clause of the Fourteenth Amendment
and under the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691 et seq. The complaint
also alleged that the City’s termination of plaintiffs’ water service constituted a breach of the City’s


Golden moved in, Brief of Appellee at 4, while Golden relies on December 17, 2000. Brief of Appellant at 4.
Inexplicably, the district court concluded that Golden began renting on January 17, 2001. (J.A. at 62).
No. 03-4252                Golden v. City of Columbus, et al.                                                       Page 4


common law duty to serve; Golden does not appeal the district court’s dismissal of this claim. The
relief sought in plaintiffs’ complaint included a declaratory judgment and damages. The original
plaintiffs filed a motion for class certification, the denial of which Golden appeals. Additionally,
Golden appeals the grant of summary judgment to the City on her procedural due process and ECOA
claims and the dismissal of her equal protection claim.
                                                    DISCUSSION
I.       Due Process
         A.        Standard of Review
         This Court reviews a district court’s decision to grant summary judgment de novo. E.g.,
Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir. 2001). Summary judgment shall
be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The
district court, and this Court in its review of the district court, must view the facts and any inferences
reasonably drawn from them in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Accordingly, we view the facts in the
light most favorable to Golden.
         B.        Merits of the Due Process Claim
        The text of the Fourteenth Amendment’s Due Process Clause makes clear that the state need
not afford due process every time it takes an action that impacts negatively on citizens’ lives. The
amendment makes a narrower guarantee: “No State shall . . . deprive any person of life, liberty, or
property, without due process of law.” U.S. CONST. amend. XIV. Golden contends that the City
denied her due process because her expectation of continued water service is “property” within the
meaning of the Due Process Clause; alternatively, she asserts that water is a “basic necessity [of]
life” and all necessities of life are “property.” Brief of Appellant at 13-16. The district court
rejected both theories.3 The court found that Golden did not enjoy a contractual relationship with
the City to support a claim of entitlement; nor could she point to a statute that created such an
entitlement. (J.A. at 78.) Finally, the court dismissed Golden’s “basic necessity for life” rationale,
concluding that whether water is “a basic necessity for life is irrelevant to the question of whether
water service is a property interest under the Fourteenth Amendment.” Id. at 87.
         In the absence of a claim that governmental action impinged on the other interests it protects
– life and liberty – it is well established that the Due Process Clause of the Fourteenth Amendment
regulates only those “actions of government that work a deprivation of interests enjoying the stature
of ‘property’ within the meaning of the Due Process Clause.” Memphis Light, Gas & Water Div.
v. Craft, 436 U.S. 1, 9 (1978); see also Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). But while
the Constitution does unequivocally protect “property,” nowhere does it define the term. To resolve
this question, as the Supreme Court held in the seminal case of Board of Regents v. Roth, the courts
are to turn elsewhere: “Property interests . . . are not created by the Constitution. Rather they are
created and their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law – rules or understandings that secure certain benefits and that
support claims of entitlement to those benefits.” Roth, 408 U.S. at 577. Thus for Golden to have
a constitutionally recognized property interest in the benefit of water service, she “must have more

         3
            In her complaint, Golden did not plead that she had a property interest in water service; in its answer, the City
did not raise the issue either. But the district court instructed the parties to prepare supplemental briefs on the question.
(J.A. at 17-18.)
No. 03-4252               Golden v. City of Columbus, et al.                                                     Page 5


than an abstract need or desire for it[,] . . . more than a unilateral expectation of it. [She] must,
instead, have a legitimate claim of entitlement to it.” Id. The Supreme Court has identified two
bases for such non-unilateral legitimate claims of entitlement: state statutes and contracts, express
or implied, between the complaining citizen and the state or one of its agencies. Id. at 577-78; see
also Perry v. Sinderman, 408 U.S. 593, 601-602 (1972) (recognizing an express or implied contract
as sufficient to support a legitimate claim of entitlement); Goldberg v. Kelly, 397 U.S. 254, 262
(1970) (recognizing a state welfare code as supporting a legitimate claim of entitlement).
         Golden concedes that she is not a customer and therefore does not enjoy a contractual
relationship with the City for the provision of water services. Brief of Appellant at 12, 14. Instead
she relies on the Supreme Court’s decision in Memphis Light, Gas & Water Div. v. Craft, 436 U.S.
1 (1978), for the proposition that all inhabitants of a city, even those who are not customers of the
public utility provider, have a legitimate claim of entitlement to provision of utility service. Brief
of Appellant at 13. This interpretation of Craft is off the mark. In Craft, the Court considered
utility customers’ procedural due process claim against the City of Memphis for terminating the
customers’ service without affording them an opportunity to contest charges about which there was
a bona fide dispute. Craft, 436 U.S. at 5. The Court found in favor of the complaining customers,
because “[i]n defining a public utility’s privilege to terminate for nonpayment of proper charges,
Tennessee decisional law draws a line between utility bills that are the subject of a bona fide dispute
and those that are not.” Id. at 9. A thorough review of Tennessee case law, see id. at 9-11, revealed
that the state only permitted termination of service because of non-payment of undisputed charges
and that “[a]n aggrieved customer may be able to enjoin a wrongful threat to terminate, or to bring
a subsequent action for damages or a refund.” Id. at 11. The availability of “such local-law
remedies” to utility customers who dispute charges in good faith “is evidence of the State’s
recognition of a protected interest.” Id. Thus Craft is plainly limited to utility customers; moreover,
as Roth requires, the decision is completely determined by state law. See generally id.; see also
Myers v. City of Alcoa, 752 F.2d 196, 198 (6th Cir.) (recognizing that the holding in Craft depended
entirely on Tennessee law), cert. denied, 474 U.S. 901 (1985).
        Golden’s reliance on a decision of this Court, Mansfield Apartment Owners Ass’n. v. City
of Mansfield, 988 F.2d 1469 (6th Cir. 1993), is similarly misplaced. In Mansfield, this Court cited
Craft for the point that “[i]t is well settled that the expectation of utility services rises to the level
of a ‘legitimate claim of entitlement’ encompassed in the category of property interests protected
by the due process clause.” Id. at 1474 (citing Craft, 436 U.S. at 10). But as the district court below
observed, the complainants in Mansfield were property owners who had accounts with the City of
Mansfield’s utility department; it was appropriate, therefore, for the Mansfield Court to apply Craft.
Without evidence of a contractual relationship between Golden and the City, or of a statutory
entitlement to water service, it is not appropriate to do so here. But Golden presents no such
evidence, which, at least as to the existence of a contract, is not surprising. The City’s policy,
established by the 1991 amendment to the Code, effectively barred Golden from establishing a
contract with the City until Matthews paid the balance left unpaid by Dean. Indeed, it is abundantly
clear that Matthews is to blame for4 Golden’s predicament and ought to have been held to account
under Ohio’s landlord-tenant law. If Golden’s representation of the lease terms is true, Matthews

         4
             Golden stated in an affidavit that she called the City when she first moved into the house at 2209 Hamilton
Avenue in order to transfer the water account from Sarah Dean’s name to her name. J.A. at 736 (Golden Depo.). The
City sent her a direct billing agreement and informed her that she and Matthews would need to sign it. Id. at 736-37.
The record does not reflect when Golden received the agreement from the City, but it is clear that the signed agreement
is dated March 16, 2001. Id. at 691. Further, Golden maintains that she sent the completed agreement back to the City
as instructed but received no response. Id. at 738. It is undisputed, however, that Golden received bills and notices from
December 28, 2000 through mid-March 2001 addressed to Sarah Dean. Although she did not contact the City when a
bill or notice came in the mail, Golden maintains that she would call Matthews whenever she received one; his response
would be a promise to come by and pick the bill or notice up, but according to Golden, “it got to the point where he
didn’t [pick them up].” Id. at 739. The parties do not dispute that Matthews never paid the amount owed by Dean, nor
No. 03-4252              Golden v. City of Columbus, et al.                                   Page 6


reneged on his promise to pay for water out of her rent. Further, it is undisputed that the City Code
makes Matthews liable for delinquent accounts at premises he owns. See Columbus City Code
§ 1105.045(E). However, a landlord’s failure to uphold his end of a bargain, even coupled with his
failure to comply with a city’s code provision regarding the payment of water bills, does not
constitute a violation of the Due Process Clause by the city.
        As to the second possible foundation for a property interest cognizable under the Fourteenth
Amendment – state statutory or common law – Golden cites to no Ohio statutes or case law in
support of her argument that she has a legitimate claim of entitlement to water service. We observe
infra that other circuits have held certain provisions common to landlord-tenant statutes to be
sufficient for this purpose. This circuit has not yet considered such an argument. We have applied
Craft in a case involving the due process claims of property owners who were water customers. See
Mansfield, 988 F.2d at 1473-74 (holding that customers’ expectation of continued utility service
constituted a protected property interest). And, in an unpublished opinion one year before
Mansfield, we were similarly faithful to Craft, rejecting a homeowner’s claim that Ohio law
guaranteed water services to its residents. Cadle v. City of Newton Falls, No. 91-3717, 1992 WL
88904, *4-5 (6th Cir. 1992) (unpublished opinion). But neither Mansfield nor Cadle offers guidance
on whether a tenant who is precluded from directly contracting for water service and from obtaining
water service at all, due to nonpayment by both the prior tenant and the landlord, may state a claim
for deprivation of a property interest without due process of law.
         In two cases, the Eleventh Circuit has held that tenants may state such a claim under
provisions of Florida’s landlord-tenant law. See James v. City of St. Petersburg, 33 F.3d 1304,
1306-1307 (11th Cir. 1994) (en banc) (finding a protectable property interest based on Florida law
to the effect that a landlord could not terminate a tenant’s utility service but finding that because
neither tenant nor landlord had established a contract with the utility, which either were allowed to
do, the interest did not attach); DiMassimo v. City of Clearwater, 805 F.2d 1536, 1539-40 (11th Cir.
1986) (finding a property interest because “it is clear that Florida’s Landlord and Tenant Act . . .
would not sanction the withdrawal of water services from . . . tenants by their landlords because such
action would constitute either the failure to provide necessary facilities for sustaining life or the
constructive eviction of tenants contrary to statutory directives for such action”). The Ninth Circuit
has issued a similar ruling pursuant to provisions of Oregon’s landlord-tenant law. See Turpen v.
City of Corvallis, 26 F.3d 978, 979 (9th Cir.), cert. denied, 513 U.S. 963 (1994). These circuits have
taken the novel approach of recognizing a property interest in a tenant’s right – under landlord-
tenant law – to bring an action to enjoin her landlord from constructively evicting her by terminating
water service or declining to pay for it. Dimassimo, 805 F.2d at 1539; Turpen, 26 F.3d at 979.
Depriving tenants of this important remedial right by failing to give proper notice before water
service terminates, the courts reasoned, is a due process violation. Dimassimo, 805 F.2d at 1539;
Turpen, 26 F.3d at 979.
        We express no opinion as to whether these precedents weigh in Golden’s favor because
Golden does not rely upon any provisions of Ohio’s landlord-tenant law in this appeal, nor did she
do so in the district court. Despite the clear command of the Supreme Court’s cases regarding what
constitutes a cognizable property interest for Fourteenth Amendment purposes, Golden rests her case
on the bare assertion that because water is “an absolute necessity of life,” the City’s termination of
her service was unconstitutional. As much as we may agree with Golden’s premise as a policy
matter, the law precludes us from adopting her conclusion. As support for the necessity-of-life
rationale, Golden relies on the now-discredited case of Koger v. Guarino, 412 F. Supp. 1375 (E.D.
Pa. 1976), in which the district court flatly stated, without support, that “water service is an
entitlement to which the requirements of due process attach.” Id. at 1384. Koger appears to be the


apparently the amount charged to the residence while Golden was a tenant there.
No. 03-4252              Golden v. City of Columbus, et al.                                                 Page 7


only reported federal case standing for such a proposition. Although Golden invokes Davis v. Weir,
497 F.2d 139 (5th Cir. 1974) for the same point, the city in that case conceded that “due process
demands pre-termination notice to the actual user [of water].” Id. at 143. In Davis, therefore, the
Fifth Circuit did not consider whether the mere use of water service, without more, constitutes a
legitimate claim of entitlement to continued service for purposes of the Fourteenth Amendment. Id.
at 143. In any event, it is clear that the plaintiff in Koger contested the termination of his water
service on substantive, rather than procedural, due process grounds. See Koger, 412 F. Supp. at
1383-84. Moreover, the Third Circuit rejected Koger’s substantive due process analysis in Ransom
v. Marrazzo, 848 F.2d 398 (3d Cir. 1988), concluding that a municipality’s denial of water service,
if it implicates any federal right, implicates   only the procedural protections of the Fourteenth
Amendment, not its substantive guarantees.5 See Ransom, 848 F.2d at 411-12.
        In conclusion, we return to the Supreme Court’s command in Roth: “Property interests . . .
are not created by the Constitution. Rather they are created and their dimensions are defined by
existing rules or understanding that stem from an independent source such as state law–rules or
understandings that secure certain benefits and that support claims of entitlement to those benefits.”
Roth, 408 U.S. at 577. While there may be relevant “rules or understandings” under Ohio law, see
discussion supra, Golden does not point us to any. Because she bears the burden       of doing so, we
affirm the district court’s grant of summary judgment to the City on this claim.6
II.     Equal Protection
        A.        Standard of Review
        We review the dismissal of a claim under FED. R. CIV. P. 12(b)(6) de novo. E.g., Gao v.
Jenifer, 185 F.3d 548, 552 (6th Cir. 1999). A motion to dismiss for failure to state a claim is a test
of the plaintiff’s cause of action as stated in the complaint, not a challenge to the plaintiff’s factual
allegations. Id. Thus this Court must assume that all allegations are true and dismiss the claim
“only if it is clear that no relief could be granted under any set of facts that could be proved
consistent with the allegations,” i.e., that the legal protections invoked do not provide relief for the
conduct alleged. Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996) (quoting Hishon
v. King & Spalding, 467 U.S. 69, 73 (1984)); see also Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In addition, “while liberal, this standard of review
does require more than the bare assertion of legal conclusions.” Columbia Natural Resources, Inc.
v. Tatum, 58 F.3d 1101, 1109 -1110 (6th Cir. 1995) (citing Allard v. Weitzman (In Re DeLorean
Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993)). “In practice, ‘a ... complaint must contain either
direct or inferential allegations respecting all the material elements to sustain a recovery under some
viable legal theory.’” Allard, 991 F.2d at 1240 (quoting Scheid v. Fanny Farmer Candy Shops, Inc.,
859 F.2d 434, 436 (6th Cir.1988)); see also Ana Leon T. v. Federal Reserve Bank, 823 F.2d 928, 930
(6th Cir.) (per curiam) (holding that the statement of mere legal conclusions is not entitled to liberal
Rule 12(b)(6) review), cert. denied, 484 U.S. 945 (1987).




        5
         The Ransom court did not consider the plaintiffs’ procedural due process claims because they were moot.
See Ransom, 848 F.2d at 409-11.
        6
           Because Golden has not demonstrated that she was deprived of a property interest within the meaning of the
Fourteenth Amendment, we need not determine whether the City afforded her due process prior to terminating water
service to her residence.
No. 03-4252           Golden v. City of Columbus, et al.                                       Page 8


       B.      Merits of the Equal Protection Claim
          Golden’s complaint asserts an equal protection claim in rather general terms: “Defendants
. . . violated Plaintiffs’ right to equal protection under the Fourteenth Amendment . . . .” J.A. at 12
(Compl. ¶ 60). The pertinent factual allegations are similarly general: “Defendants have established
policies and customs and/or patterns and practices of requiring Plaintiffs and other consumers of and
applicants for water service to comply with conditions different from similarly situated customers
in order to restore water service, including but not limited to refusing to provide water service
accounts to applicants who are not landowners.” Id. (Compl. ¶ 56). The City contends that the
district court properly dismissed the claim because the only dissimilar treatment it can be read to
allege is dissimilar treatment as between landlords and tenants. Because landlords and tenants are
not similarly situated, the City’s argument runs, Golden’s complaint fails to state a claim upon which
relief can be granted. It is true that the district court dismissed Golden’s complaint in part on this
basis. However, the remainder of the district court’s analysis belies the City’s contention that the
complaint only alleges dissimilar treatment as between tenants and landlords.
         The district court’s opinion demonstrates that it dismissed Golden’s claim on the assumption
that the complaint alleged two forms of discrimination – first, as between tenants and landlords and,
second, as between those tenants whose circumstances permitted them to enter direct billing
agreements and those whose circumstances did not. See J.A. at 69-74. We think the district court’s
reading of the complaint was reasonable. Indeed, the parties apparently read the complaint in the
same broad fashion; both parties briefed the tenant versus tenant classification as well as the tenant
versus landlord classification in their motions before the district court. See J.A. at 111-15
(Defendant’s Motion for Partial Dismissal), 208-10 (Plaintiff’s Motion in response). In the end, the
district court considered, and dismissed, Golden’s equal protection claim under both theories. See
id. at 69-74. We note that in the context of determining whether a § 1983 plaintiff has adequately
pleaded the capacity in which she seeks to hold the defendant liable, we employ a “course of
proceedings” test such that our interpretation of the complaint will be informed by the manner in
which the parties and the district court interpreted it. Moore v. City of Harriman, 272 F.3d 769, 772-
73 (6th Cir. 2001) (en banc), cert. denied, 536 U.S. 922 (2002). We decline, therefore, to accept the
City’s representation that Golden alleges dissimilar treatment as between two classes of tenants for
the first time on appeal, see Brief of Appellee at 19, for this would be obviously inconsistent with
the course of the proceedings so far. We read the complaint as alleging that the City treated two
classes of tenants dissimilarly and two classes of residents, tenants and landlords, dissimilarly. We
hold that, as to the former theory, Golden states a claim upon which relief can be granted under our
case law.
         Several circuits, including ours, have considered whether the Equal Protection Clause
permits a municipality to deny water service to a residence where the prior inhabitant failed to pay
water bills. See O’Neal v. City of Seattle, 66 F.3d 1064 (9th Cir. 1995); Ransom v. Marrazzo, 848
F.2d 398 (3d Cir. 1988); DiMassimo v. City of Clearwater, 805 F.2d 1536 (11th Cir. 1986); Sterling
v. Vill. of Maywood, 579 F.2d 1350 (7th Cir. 1978), cert. denied, 440 U.S. 913 (1979); Craft v.
Memphis Light, Gas & Water Div., 534 F.2d 684 (6th Cir. 1976), aff’d on other grounds, 436 U.S.
1 (1978); Davis v. Weir, 497 F.2d 139 (5th Cir. 1974). Because there is no fundamental right to
water service, see discussion supra Part I; see also Mansfield Apartment Owners Ass’n v. City of
Mansfield, 988 F.2d 1469, 1477 (6th Cir. 1993), we apply rational basis scrutiny to the City’s water
policy. O’Neal, 66 F.3d at 1067; Dimassimo, 805 F.2d at 1541.
       Golden alleges that the City’s policy irrationally treats one group of tenants (those whose
landlords owe the City for water service) differently from another group of tenants (those whose
No. 03-4252               Golden v. City of Columbus, et al.                                                     Page 9


landlords do not).7 Brief of Appellant at 21. According to Golden, the City’s classification scheme
has a determinative effect on a tenant’s chances of securing water service. One class established by
the City’s policy is comprised of tenants who move into properties where there is no unpaid balance
on the water account; these tenants will receive water service. The other class is comprised of
tenants whose properties are encumbered by the water debts of the prior tenant; these tenants will
be deprived of water service until they or their landlords, who are liable for the debt, pay the amount
owed. Although it is true that no tenant in the City may establish a direct billing agreement with the
City without first securing her landlord’s consent, see Columbus City Code § 1105.045(D), Golden
maintains that the City’s policy nevertheless divides tenants in an irrational manner because it denies
water service only to those tenants whose predecessors or landlords failed to pay the water bills.
We agree.
         This Court held nearly thirty years ago that a water service policy in Memphis, similar to the
policy at issue here, violated water applicants’ equal protection rights by irrationally dividing
applicants into those who were permitted to contract for water and those who were not. Craft v.
Memphis Light, Gas & Water Div., 534 F.2d 684, 689-90 (6th Cir. 1976), aff’d on other grounds,
436 U.S. 1 (1978). In Craft, the dividing line between applicants permitted to contract for service
and applicants not permitted to contract was whether a water applicant’s predecessor owed an
unpaid balance at the property; if so, the applicant could not establish an account until the debt was
paid. Craft, 534 F.2d at 689. In Craft, this Court relied on the then-contemporary Fifth Circuit case
of Davis v. Weir, 497 F.2d 139 (5th Cir. 1974), which invalidated an analogous Atlanta policy.
Davis, 497 F.2d at 144-45. The Davis court concluded that “the Water works has divided those who
apply for its services into two categories: applicants whose contemplated service address is
encumbered with a pre-existing debt (for which they are not liable) and applicants whose residence
lacks the stigma of such charges.” Id. at 144. The court rejected Atlanta’s defense that its policy
facilitated the collection of unpaid bills at apartment buildings, holding that “[t]he City has no valid
governmental interest in securing revenue from innocent applicants who are forced to honor the
obligations of another or face constructive eviction from their homes for lack of an essential to
existence – water.” Id. at 145. The court acknowledged that Atlanta’s policy facilitated debt
collection but concluded that “[a] debt collection scheme . . . that divorces itself entirely from the
reality of legal accountability for the debt involved, is devoid of logical relation to the collection of
unpaid water bills from the defaulting debtor.” Id. at 144-45.
        The Davis court’s reasoning remains intact in the Fifth Circuit, was adopted by this circuit
in Craft, and has been adopted by the Ninth and Seventh Circuits. See O’Neal v. City of Seattle, 66
F.3d 1064, 1067-1068 (9th Cir. 1995); Sterling v. Vill. of Maywood, 579 F.2d 1350, 1355 (7th Cir.
1978). At least one circuit, the Third, has rejected Davis, concluding that “the classification of
service eligibility according to the presence or absence of encumbrances on the property [survives]
rational relationship scrutiny” because while it may be an irrational means of collecting debt from
the debtor, it is a rational way of accomplishing “the more general goal of collecting debts, period.”
Ransom v. Marrazzo, 848 F.2d 398, 412-13 (3d Cir. 1988). Having the benefit of both the Third and
Fifth Circuits’ approaches to consult, the Ninth Circuit “reject[ed] the Ransom court’s technical
narrowing of the legislative purpose and agree[d] with the Fifth Circuit’s opinion in Davis.” O’Neal,
66 F.3d at 1067-68.
         Even if we preferred the Third Circuit’s approach to the question, we are bound by Craft,
as that case is still good law in this circuit. Nevertheless, the City asserts that its policy is materially
distinguishable from those at issue in Craft, Davis, and O’Neal. The City contends that “the only
classification [its policy] makes is between property owners and tenants.” Brief of Appellee at 20.


         7
          Even if the prior tenant had a direct billing agreement with the City, the landlord is ultimately liable for any
unpaid water bills. Thus, any amounts owed to the City at the time that a new tenant moves in are owed by the landlord.
No. 03-4252               Golden v. City of Columbus, et al.                                                    Page 10


According to the City, all tenants are treated equally since all tenants must obtain their landlords’
consent before establishing a direct billing agreement. The City further argues that its policy does
not require tenants to pay bills for which they are not liable; instead, the policy imposes financial
liability on landlords only. These points, while true, are irrelevant. The critical issue is whether
terminating a tenant’s water service is a rational means of collecting the landlord’s water service
debt. We hold that it is not.
        We do not see a meaningful distinction between the policy before us and those held
unconstitutional in Craft, Davis, Sterling, and O’Neal. Moreover, to the extent there are distinctions,
we see no reason to depart in this8 case from the Fifth Circuit’s rationale in Davis – a rationale which
we adopted as our own in Craft. In practical terms, as Golden’s own experience shows, the City’s
policy works as follows. A tenant moves into an apartment; water is available at the time the tenant
moves in, so there is no reason for the tenant to question its future availability. However, at some
point later the City terminates water service to the residence for the sole reason that the landlord
owes the City for the prior tenant’s water usage. When the new tenant inquires with the City, she
learns that water service will recommence only once her landlord has satisfied the debt that he alone
owes. This is a debt collection scheme “that divorces itself entirely from the reality of legal
accountability for the debt involved,” Davis, 497 F.2d at 144-45, because the person directly
penalized by the scheme is not the debtor but an innocent third party with whom the debtor
contracted.
         The City submits that because the policy does not explicitly require tenants to pay their
predecessors’ debts, but instead imposes that obligation on landlords, it is constitutional. Whether
the City’s goal is that it be repaid by the person who owes the debt or by the tenant who is directly
affected by its collection scheme is immaterial for constitutional purposes. Neither goal gives “the
City license to pursue payment by refusing water service to an unrelated, unobligated third party,
whether that third party be the new tenant or any other stranger to the prior service agreement.”
O’Neal, 66 F.3d at 1068. We conclude, as the Ninth Circuit did in O’Neal, that “[p]ursuing payment
from the prior tenant and the landlord would be rationally related to the City’s goal; refusing service
to an unobligated new tenant is not.” Id. To be sure, the City has at its disposal various means to
recover from the landlord or the prior tenant without jeopardizing the new tenant’s water service.
In fact, after the events that prompted Golden to bring this action, the City implemented one obvious
approach. Under a rule adopted by the Director of Public Utilities, tenants facing termination of
water service – or, we may assume, seeking to reinstate service already terminated – may pay their
rent into an escrow account maintained by the Municipal9 Court for Franklin County.10We express
no opinion as to whether the particulars of this new rule pass constitutional muster; we refer to


         8
           In addition, we are not persuaded by the Eleventh Circuit’s equal protection rationale in Dimassimo v. City
of Clearwater, 805 F.2d 1536 (11th Cir. 1989), a case the City urges us to follow. In Dimassimo, the court rejected an
equal protection claim similar to Golden’s. The Eleventh Circuit did not consider our opinion in Craft, nor the Fifth
Circuit’s opinion in Davis. For the reasons stated in our discussion, we adhere to those opinions.
         9
           A 2002 version of the rule is reprinted in the Joint Appendix. See J.A. at 603-605 (City of Columbus Dep’t
of Pub. Utils. Rule and Regulation No. 2002-01).
         10
            Neither do we construe this new rule as mooting the present controversy. We have no way of knowing
whether the new rule is permanent or temporary and the City does not contend that it moots Golden’s equal protection
claim. As a general rule, “‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court
of its power to determine the legality of the practice’ unless it is ‘absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.’” Buckannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res.,
532 U.S. 598, 609 (2002) (quoting Friends of the Earth, Inc., v. Laidlaw Environmental Servs., Inc., 528 U.S. 167, 189
(2000)). “[A] heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start
up again lies with the party asserting mootness.” Adarand Const., Inc. v. Slater, 528 U.S. 216, 222 (2000). Because
the City does not assert mootness, it follows that its adoption of the new rule does not moot Golden’s equal protection
No. 03-4252               Golden v. City of Columbus, et al.                                                   Page 11


it only to illustrate that cities in this circuit are not without means to recover water service debts
merely because the Equal Protection Clause of the Fourteenth Amendment bars them from
terminating the water service of a tenant whose landlord owes water bills.
III.     Equal Credit Opportunity Act
         A.       Standard of Review
        The district court granted summary judgment to the City on Golden’s ECOA claim. We
therefore review the district court’s judgment on this point de novo. E.g., Cockrel v. Shelby County
Sch. Dist., 270 F.3d 1036, 1048 (6th Cir. 2001). In addition, we view the relevant facts in the light
most favorable to Golden. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
         B.       Merits of the ECOA Claim
        Golden asserts that the policy, which authorizes direct billing of a tenant only if (1) the
landlord agrees in writing and (2) any existing balance on the account is immediately paid, violates
the ECOA, 15 U.S.C. § 1691(a)(1). Golden’s theory of liability is that the policy has the effect of
rejecting a higher proportion of female and minority applicants for water service than other
applicants. See Brief of Appellant at 24. This theory is based on the findings of Golden’s expert
witness to the effect that women and minorities are under-represented in the population of
homeowners in the City. According to Golden, because the policy permits only homeowners to
directly contract for water service, the policy has a disparate impact on anyone who is under-
represented among homeowners. The district court assessed the statistical evidence furnished by
the expert in support of Golden’s disparate impact claim and concluded that this evidence did not
make the type of comparison necessary to state such a claim. Finding that Golden had failed to
make out a prima facie case of disparate impact discrimination, the court granted summary judgment
to the City. We affirm.
         The ECOA provides, in relevant part: “It shall be unlawful for any creditor to discriminate
against any applicant, with respect to any aspect of a credit transaction on the basis of race, color
. . . sex or marital status.” 15 U.S.C. § 1691(a)(1). We make the following assumptions for
purposes of resolving Golden’s ECOA claim. First, we assume that Golden is an applicant, that the
City is a creditor, and that a transaction for water service is a11credit transaction. Second, we assume
that disparate impact claims are permissible under ECOA.
        To prove her claim that the City’s policy has a disparate impact on women and minorities,
Golden must show that the policy “has a significantly greater discriminatory impact on [women and
minorities].” A.B. & S. Auto Service, Inc. v. South Shore Bank of Chicago, 962 F. Supp. 1056, 1060
(N. D. Ill. 1997) (citation omitted). The conventional way to do this is “to compare representation
of the protected class in the applicant pool with representation in the group actually accepted from


claim.
         11
             Neither the Supreme Court nor this Court have previously decided whether disparate impact claims are
permissible under ECOA. However, it appears that they are. See Coleman v. General Motors Acceptance Corp., 196
F.R.D. 315, 325-26 (M.D.Tenn. 2000), modified on other grounds, 296 F.3d 443 (6th Cir. 2002) (discussing cases in
the federal district courts, one court of appeals case, and ECOA’s legislative history and concluding that “there is clear
support for the use of a disparate impact theory in an ECOA case”). See also S. Rep. No. 94-589 (instructing that
“judicial constructions of anti-discrimination legislation in the employment field,” such as in cases where the Supreme
Court has sustained disparate impact claims, should serve as guidelines in ECOA cases); Gwen A. Ashton, The Equal
Credit Opportunity Act from a Civil Rights Perspective: The Disparate Impact Standard, 17 ANN. REV. BANKING L. 465,
478-81 (1998).
No. 03-4252               Golden v. City of Columbus, et al.                                                  Page 12


the pool.” Cherry v. Amoco Oil Co., 490 F. Supp. 1026, 1030 (N. D. Ga. 1980). “If the statistical
disparity is significant, then [the] plaintiff is deemed to have made out a prima facie case.” Id. In
some cases, a plaintiff may rely on general population characteristics if it is reasonable to assume
that the applicant pool is representative of the general population. However, “this assumption is not
valid in every case. Plaintiff must demonstrate why the use of general population statistics would
be valid.” A.B.& S. Auto Service, Inc., 962 F. Supp. at 1061 (citing Cherry, 490 F. Supp. at 1031
n. 9).
        From what we are able to discern, Golden has not attempted to identify the actual applicant
pool for water service in Columbus and has instead relied upon characteristics of the City’s general
population. As just mentioned, this approach is permissible in cases where the plaintiff
demonstrates that any possible applicant pool would be representative of the population as a whole.
Golden has not offered evidence or argument on this score. Golden relies on the work of an expert
whose conclusion that the City’s policy has a disparate impact on women and minorities depends
on which groups of residents he chose to compare. Without explanation or citation to authority,
Golden contends that it was appropriate for the expert to compare the demographics of all renters
to the demographics of all homeowners as a proxy for a comparison between the actual pool of
applicants for water service in Columbus and the subset of the pool who succeed in securing service.
We disagree.
        The parties agree on two critical points: first, in order to be eligible to apply for water
service, an applicant must live in a residential unit – whether a house or an apartment – that has its
own water meter; and, second, those eligible to apply for water service without needing to secure
anyone else’s approval include not only people who own residences      with water meters but also those
who live with people who own residences with water meters.12 In reality, then, the applicant pool
for water service in the City of Columbus is comprised of people who either rent a residence with
a water meter, own such a residence, or live with someone who owns such a residence. Those who,
all things being equal, will secure water service from the City without having to obtain another’s
approval are people who either own a residence with a water meter or live with the owner of such
a residence. If there were a statistically significant disparity between the representation of women
and minorities in the first group and their representation in the second group, a finding that the
policy has a disparate impact on women and minorities would be appropriate. E.g., Cherry, 409 F.
Supp. at 1030. The expert’s statistics do not address this question, however. The expert’s
comparison between all renters and all homeowners does not indicate one way or the other whether
the proportion of women and minorities in the actual applicant pool is larger, in a statistically
significant sense, than the proportion of women and minorities in the group of successful applicants.
Moreover, Golden does not attempt to explain why the group of all renters is an accurate proxy for
the actual applicant pool and the group of all homeowners an accurate proxy for the group of
successful applicants for water service. We need not inquire further because the law requires
Golden to proffer such an explanation. See A.B.& S. Auto Serv., Inc., 962 F. Supp. at 1062
(observing that plaintiff must show that the actual applicant pool bears “approximately the same
characteristics as the general population surveyed”). We note parenthetically, however, that the
group of all renters is obviously over-inclusive if designed to serve as a useful proxy for the actual
applicant pool because it includes many renters who live in a large subset of residences that do not
have individual water meters, i.e., apartments. In this respect, the expert’s approach was not
sensitive to a baseline qualification all applicants for water service in Columbus must meet. As the
Supreme Court has said in the context of employment discrimination, “when special qualifications
are required to fill particular jobs, comparisons to the general population (rather than to the smaller
group of individuals who possess the necessary qualifications) may have little probative value.”


         12
            The City denominates people who own residences with water meters as “heads of households.” Golden does
not dispute that the City contracts with people who live with heads of households, e.g., spouses of heads of households.
No. 03-4252           Golden v. City of Columbus, et al.                                      Page 13


Hazlewood Sch. Dist. v. United States, 433 U.S. 299, 308 n.13 (1977). In addition, the expert’s
proxy for the group of successful applicants, i.e., all homeowners, is under-inclusive because it
excludes a group of residents who are eligible to apply for water service without having to obtain
approval from another, i.e., those who live with owners of residences that have water meters.
        With these points in mind, we conclude that the comparison relied upon by the expert in
fashioning Golden’s disparate impact claim does not, at least not in a discernible way, indicate that
the City’s policy has a disparate impact on women and minorities. Since Golden does not attempt
to illuminate any hidden meaning the expert’s comparison may have, we must affirm the district
court’s grant of summary judgment to the City.
IV.    Class Certification
       A.      Standard of Review
        We review a district court’s denial of class certification for abuse of discretion. Alkire v.
Irving, 330 F.3d 802, 810 (6th Cir. 2003); In Re American Med. Sys., Inc., 75 F.3d 1069, 1079 (6th
Cir. 1996). As the party seeking class certification, Golden bears the burden of proof. Gen. Tel. Co.
v. Falcon, 457 U.S. 147, 161 (1982); In Re American Med. Sys., Inc., supra, at 1079.
       B.      Merits of the Class Certification Claim
         As we reiterated recently, “[i]n order to obtain class certification, [a] plaintiff must first
satisfy Rule 23(a)’s requirements of numerosity, commonality, typicality, and adequacy of
representation.” Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443, 446 (6th Cir. 2002). The
district court concluded that Golden failed to prove numerosity. FED. R. CIV. P. 23(a)(1). This
conclusion was not an abuse of the court’s discretion; we therefore affirm.
         To prove numerosity, Golden must demonstrate that the putative class is “so numerous that
joinder of all members is impracticable.” FED. R. CIV. P. 23(a)(1). We have observed that “[t]here
is no strict numerical test for determining impracticability of joinder.” In Re American Med. Sys.,
Inc., 75 F.3d at 1079 (citing Senter v. Gen. Motors Corp., 532 F.2d 511, 523 n.24 (6th Cir.), cert.
denied, 429 U.S. 870 (1976)). Indeed, “[t]he numerosity requirement requires examination of the
specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. of the Northwest,
Inc., v. EEOC, 446 U.S. 318, 330 (1980). Nevertheless, while “the exact number of class members
need not be pleaded or proved, impracticability of joinder must be positively shown, and cannot be
speculative.” McGee v. East Ohio Gas Co., 200 F.R.D. 382, 389 (S. D. Ohio 2001) (quotation and
citations omitted); see also 7A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 1762 (3d Ed. 2001) (observing that the party seeking class certification “bear[s]
the burden of showing impracticability and mere speculation as to the number of parties involved
is not sufficient to satisfy Rule 23(a)(1)”).
        With respect to Golden’s equal protection claim – the only claim we sustain – the putative
class of plaintiffs consists of tenants in Columbus whose water service was or will be terminated
because of the landlord’s or prior tenant’s indebtedness. J.A. 9-10 (Compl.); 91 (Motion for Class
Cert.). As proof of impracticability of joinder, Golden relies exclusively on one figure – the number
of renters in Columbus, which, according to Golden, is 150,000. We have no reason to question this
figure but we agree with the district court that merely referring to it does not suffice for purposes
of proving numerosity under Rule 23(a)(1). Golden must offer something more than bare
speculation to link the gravamen of her claim for liability to the class of individuals she purports to
represent. The gravamen of Golden’s equal protection claim is that the City irrationally terminates
certain tenants’ water service. Golden does not allege that all tenants in Columbus are at risk of
constitutional harm, only those whose predecessors or landlords are indebted to the City. Thus,
reference to the total number of tenants in Columbus is not probative of the number of tenants
No. 03-4252           Golden v. City of Columbus, et al.                                      Page 14


reasonably likely to face the harm for which Golden seeks redress. Of course, the total number of
tenants in Columbus is probative in the very limited sense that it represents the absolute maximum
number of plaintiffs that could be in any class action brought by a tenant against the City. But the
district court must engage in a “rigorous analysis” when evaluating the plaintiff’s proof of
numerosity, see Falcon, 457 U.S. at 161. We cannot say the district court abused its discretion in
concluding that such an unrefined measure as the total tenant population in Columbus is too
speculative for purposes of the numerosity requirement. See Alkire, 330 F.3d at 820 (holding that
the plaintiff’s hypothesis that hundreds of people might be unconstitutionally incarcerated for failure
to pay civil debts or court costs was insufficient to prove numerosity); Gevedon v. Purdue Pharma,
212 F.R.D. 333, 337-38 (E. D. Ky. 2002) (holding, in a products liability case, that the total sales
volume of the product in question is not in itself sufficient proof of numerosity).
       Accordingly, we affirm the district court’s denial of Golden’s motion for class certification.
                                          CONCLUSION
        We AFFIRM the district court’s grant of summary judgment to the City with respect to
Golden’s claims under the ECOA and the Due Process Clause of the Fourteenth Amendment. We
similarly affirm the court’s denial of the motion for class certification. However, we REVERSE the
district court’s dismissal of Golden’s equal protection claim. Accordingly, we remand for
proceedings consistent with this opinion.
