                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

                                                 )
CARL BARNES, et al.,                             )
                                                 )
               Plaintiffs,                       )
                                                 )
        v.                                       )   Civil No. 06-315 (RCL)
                                                 )
THE DISTRICT OF COLUMBIA                         )
                                                 )
              Defendant.                         )
                                                 )


                                 MEMORANDUM OPINION

        Upon consideration of the plaintiffs’ Motion to Extend Time [488] and the defendant’s

Opposition [489] thereto, the Court hereby GRANTS the plaintiffs’ Motion and extends the

deadline for filing claim forms to April 25, 2014.

   I.        BACKGROUND

        Prior opinions of this Court have detailed the complex factual and procedural background

of this litigation at length. See, e.g., Barnes v. District of Columbia, 793 F. Supp. 2d 260

(D.D.C. 2011). For present purposes, the Court will recount only those facts relevant to this

opinion.

        Plaintiffs—a class of individuals alleging improper detention and/or strip searching by

the District of Columbia Department of Corrections—filed suit in 2006, claiming violations of

the Fourth, Fifth, and Eighth Amendments. The parties reached a settlement agreement on

November 4, 2013, which the Court preliminarily approved on November 8, 2013. See Joint

Mot. For Prelim. Approval by the Court, ECF No. 465, Ex. 2 (Settlement Agreement, Nov. 4,

2013) [hereinafter Settlement Agreement]; Prelim. Order of Approval of Settlement, ECF No.
466 [hereinafter Prelim. Order]. As the class members include current or former prisoners

widely dispersed throughout the District and beyond, the Court’s Order required that the class

administrator provide the “best notice practicable under the circumstances.” Prelim. Order ¶ 10.

To this end, the settlement agreement provided for notice via newspapers, the internet, and

posting in correctional facilities. Settlement Agreement ¶ 50(a)–(c). Once class members were

notified of the settlement, the agreement required that members submit a Proof of Claim and

Release Form (“claim form”) by April 11, 2014. Id. Following a fairness hearing on March 18,

2014, the Court entered final approval of the settlement agreement. Final Order of Approval of

Settlement, ECF No. 484 [hereinafter Final Order].

         On April 10, 2014, class counsel filed the present motion, notifying the Court that,

despite making a good faith effort to obtain and submit claim forms prior to the deadline,

fourteen putative class members were unable to do so. Mot. for Extension of Time 2–3, ECF

No. 488 [hereinafter Pls.’ Mot.]. Each of these claimants requested a form in advance of the

deadline, but was unable to receive, complete, and return the form before April 11.             To

accommodate these class members, class counsel has requested that the Court modify the Final

Order and extend the claims deadline until April 25. For the reasons explained below, the Court

GRANTS the plaintiffs’ motion.

   II.      ANALYSIS

         Collectively, Federal Rules of Civil Procedure 6(b) and 60(b) provide that a court may

relieve a party from a final judgment in cases of “excusable neglect.” In the class action context,

the Court of Appeals has adopted the factors set forth by the Supreme Court in Pioneer Inv.

Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993), to determine whether

excusable neglect exists. In re Vitamins Antitrust Class Actions, 327 F.3d 1207, 1209 (D.C. Cir.



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2003).       These factors include: “(1) the danger of prejudice to the party opposing the

modification, (2) the length of delay and its potential impact on judicial proceedings, (3) the

reason for the delay, including whether it was within the reasonable control of the movant, and

(4) whether the movant acted in good faith.” Id. Significantly, excusable neglect “is a somewhat

elastic concept and is not limited strictly to omissions caused by circumstances beyond the

control of the movant.” Id. at 1210 (internal quotations omitted). Applying these factors to the

present case, the Court finds that modification of its Final Order is appropriate.

           First, any prejudice to the District is minimal. In its Opposition, the District argues that,

because the settlement agreement permits any funds not distributed to class members to revert to

the District, “even a few additional claims will reduce [the reversion amount] as a matter of

simple math.” Mem. in Opp. to Mot. for Extension of Time 3, ECF No. 489 [hereinafter Def.’s

Opp.].      Though true, that fact does not equate to any significant prejudice under these

circumstances. Based upon the class definition, there are between 5,000 and 10,000 persons who

are class members by virtue of being strip searched or improperly detained by the District. Pls.’

Mot. 5. To date, only 1,582 have submitted claim forms. Id. The inclusion of an additional

fourteen claims, and thus the danger of prejudice to the District, is infinitesimal in comparison to

the District’s potential exposure. Prejudice to the District is further reduced by the fact that,

despite not having completed formal claim forms, the District was notified of the additional

claims within the proper time. This situation is therefore distinguishable from cases wherein a

defendant is unfairly surprised by claimants who appear after the deadline has passed.

Moreover, whatever prejudice the District faces is easily outweighed by the remaining Pioneer

factors.




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       Second, the length of the delay—two weeks—will have no effect whatsoever on the

judicial proceedings. This litigation has meandered for eight years. Allowing a mere two-week

extension can only serve to enhance the fairness of these proceedings.

       Combining the third and fourth factors, the Court finds that although the submission of

claim forms was within the reasonable control of class members and class counsel, the reason for

the delay was reasonable and motivated by a good faith effort to comply with the settlement

agreement and subsequent order of this Court.

       There is absolutely no evidence before the Court that the administrator, class counsel, or

the class members have acted in bad faith; rather, it appears that the tardy submission of claim

forms is a result of the necessarily imperfect method of notice in this case. Because many of the

class members were incarcerated or difficult to locate, the settlement agreement provided for

notice by publication in newspapers, on the internet, and paper postings in prisons. While such

notice is generally adequate, it is not ideal. See, e.g., City of New York v. New York, N. H. & H.

R. Co., 344 U.S. 293, 296 (1953) (“Notice by publication is a poor and sometimes a hopeless

substitute for actual service of notice. Its justification is difficult at best.”). Indeed, “[i]n too

many instances notice by publication is no notice at all.” Walker v. City of Hutchinson, Kan.,

352 U.S. 112, 117 (1956). Each of the tardy claimants indicated that while they were notified of

the settlement, the notice did not include a claim form. The delay in submitting a timely claim

form was not caused by bad faith but rather an honest attempt to comply with the settlement

agreement. Accordingly, the Court finds that modification of the Final Order is proper as the

failure to submit timely claim forms was due to excusable neglect.

       The cases cited by the District are easily distinguishable. First, the District cites Pigford

v. Johanns, 416 F.3d 12 (D.C. Cir. 2005) to support its position that it is entitled to “rely on the



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hard-fought bargain struck between the parties.” Def.’s Opp 6. Although the Court of Appeals

in Pigford upheld the district court’s refusal to extend the claim deadline in a class action, the

Circuit noted that it would have been equally proper for the district court to grant an extension.

416 F.3d 12, 20 (D.C. Cir. 2005) (“Although the district court might have been warranted in

modifying the deadlines based on class counsel’s failure to meet deadlines, as we explained

supra, the court did not abuse its discretion in declining to do so.”). Indeed, the district court had

twice extended the time for submitting claims at the request of class counsel, Id. at 14–15, and

did not take the zero-tolerance position advanced by the District in this case.

       The second case cited by the District, Dahingo v. Royal Caribbean Cruises, Ltd., 312 F.

Supp. 2d 440, 447 (S.D.N.Y. 2004), is a district court case from another jurisdiction that is

contrary to the precedent in this Circuit. There, the court denied modification of a claims

deadline based upon a strict application of contract law principles and dismissed the Pioneer

factors as being “of little relevance . . . , since it concerned the construction of a term in the

Federal Rules of Bankruptcy, not principles for implementing settlement agreements.” Dahingo

is clearly inapplicable as the D.C. Circuit has adopted the Pioneer framework for excusable

neglect to determine whether modification of a class settlement agreement is warranted. See In

re Vitamins Antitrust Class Actions, 327 F.3d at 1209.

       For the foregoing reasons, paragraph twenty of the Court’s Final Order shall be modified

nunc pro tunc to read:


               20. Proof of Claim Forms not received or post-marked by April
               25, 2014, shall not be paid, although such persons shall
               nonetheless be bound by this Order.

       A separate Order consistent with this Memorandum Opinion shall issue this date.

       Signed by Royce C. Lamberth, United States District Judge, on May 1, 2014.

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