                   IN THE COURT OF APPEALS OF IOWA

                                 No. 16-1230
                              Filed July 6, 2017


RESIDENTS OF ROYAL VIEW MANOR by and through JEANETTE
MCDOWELL, et. al.,
     Plaintiffs-Appellees,

vs.

THE DES MOINES MUNICIPAL HOUSING AGENCY d/b/a ROYAL VIEW
MANOR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



      The Des Moines Municipal Housing Agency appeals the district court

order certifying a class action. AFFIRMED.



      Eric G. Hoch, Kevin J. Driscoll and Kellen B. Bubach of Finley Law Firm,

P.C., Des Moines, and Gregory R. Brown and Joseph G. Gamble of Duncan,

Green, Brown & Langeness, P.C., Des Moines, for appellant.

      Steven P. Wandro and Kara M. Simons of Wandro & Associates, P.C.,

Des Moines, and Jeffrey M. Lipman of Lipman Law Firm, P.C., Clive, for

appellees.



      Heard by Vogel, P.J., and Doyle and McDonald, JJ.
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DOYLE, Judge.

       Fifty-five tenants of Royal View Manor filed a lawsuit on their own behalf

and on behalf of those persons similarly situated alleging the Des Moines

Municipal Housing Agency (DMMHA) breached warranties of habitability by

failing to properly remedy a bed bug infestation in the apartment building. The

DMMHA alleges the district court erred in certifying the class action because the

plaintiffs failed to prove joinder of all class members is impractical and individual

issues predominate over class questions. Because the district court properly

exercised its discretion in certifying the class action, we affirm.

       I. Background Facts and Proceedings.

       Royal View Manor is an eight-story, two-hundred-unit, apartment building

in Des Moines. It is owned and operated by the DMHAA, which provides housing

for low- and moderate-income individuals. The DMMHA has an income limit for

those who reside in its buildings and rents are income-based.

       In 2010, the DMMHA learned of a bed bug infestation at Royal View

Manor.    It retained a pest-control firm to treat the infestation in individual

apartment units based on resident complaints.           In June 2010, the DMMHA

changed to a preventative program, eventually retaining Preferred Pest Control

to investigate each apartment quarterly and treat any infestation detected

through a combination of heat and chemical treatments. Preferred Pest Control

made other recommendations for controlling the spread of bed bugs through the

building, and the DMMHA implemented some of those recommendations.

       The district court summarized the evidence regarding the extent of the bed

bug infestation at Royal View Manor:
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               When Preferred [Pest Control] completed its first full
       inspection at Royal View [Manor] in 2010, it detected bed bugs in
       forty-four apartments, which is twenty-two percent of the
       apartments. The [DMMHA] and Preferred [Pest Control] set a goal
       of getting to ten percent. The documents show some limited
       success for different periods of time. For example, Preferred [Pest
       Control]’s records show it detected bed bugs in thirteen apartments
       during the spring quarter of 2013. However, Royal View [Manor]
       has never met its goal of ten percent in a lasting sense. For
       example, bed bugs were detected in twenty-seven apartments in
       2011, thirty-one apartments in the fall of 2012, forty-four apartments
       in the winter of 2013, and thirty-six apartments in the summer of
       2014. In June of 2015, bed bugs were detected in seventy-two out
       of 183 apartments. . . .
               The bed bug detections were not confined to the same
       apartments as prior detections. For example, from September of
       2010 to April of 2015, bed bugs were detected in apartment 214 on
       five different occasions. However, bed bugs were not detected in
       some apartments (such as 202 and 201) for the first time until 2014
       and 2015. As a result, there has been a cumulative effect resulting
       in a large majority of the apartments at Royal View [Manor] having
       been detected to have bed bugs on at least one occasion over the
       period from 2010 to 2015.

       In October 2014, fifty-five current and former residents of Royal View

Manor filed a petition against the DMMHA alleging it had breached express,

implied, and statutory warranties of habitability.    The plaintiffs sought class

certification for “[a]ll tenants of Royal View Manor who were subject to infestation

of bed bugs from at least the date of 2007 to present,” estimating the class could

include between 300 and 600 residents.        They also sought declaratory and

injunctive relief as a class in addition to damages on behalf of themselves and

the class.

       The district court found the plaintiffs had met the requirements of the Iowa

Rules of Civil Procedure for class certification.    However, because only one

resident reported contact with bed bugs before 2010, the district court limited the
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class to “all tenants of Royal View Manor from January 1, 2010, to present.” The

DMMHA appeals from this order.

       II. Scope and Standard of Review.

       Because the district court enjoys broad discretion in certifying class-action

lawsuits, we review the district court’s ruling granting certification of a class for an

abuse of discretion. See Freeman v. Grain Processing Corp., 895 N.W.2d 105,

113 (Iowa 2017). An abuse of discretion occurs when the district court certifies a

class action on clearly unreasonable grounds. See id. We will affirm a class

certification if the district court weighed and considered the factors before it and

reached a reasoned conclusion concerning whether the class action should be

permitted for a fair adjudication of the controversy. See id.

       III. Analysis.

       The objective of a class action is

       the efficient resolution of the claims or liabilities of many individuals
       in a single action, the elimination of repetitious litigation and
       possibly inconsistent adjudications involving common questions,
       related events, or requests for similar relief, and the establishment
       of an effective procedure for those whose economic position is
       such that it is unrealistic to expect them to seek to vindicate their
       rights in separate lawsuits.

Comes v. Microsoft Corp., 696 N.W.2d 318, 320 (Iowa 2005) (quoting 7A Charles

Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure

§ 1754, at 49 (2d ed. 1986)). With this objective in mind, the Iowa Rules of Civil

Procedure set forth four prerequisites that the plaintiffs must establish before the

court may certify a class action: (1) the class must be so numerous that joinder of

all members is impracticable, (2) there must be a question of fact or law common

to the class, (3) the class action must provide for the fair and efficient
                                         5


adjudication of the controversy, and (4) the representative parties must fairly and

adequately protect the interests of the class. See Iowa Rs. Civ. P. 1.261-.263.

Although failing to prove any one of these prerequisites is fatal, we note that the

burden on the class representatives at the class certification stage is “light.” See

Freeman, 895 N.W.2d at 114.         Furthermore, the rules should be “liberally

construed” to maintain class actions. See id. (citation omitted).

       A. Numerosity.

       The DMMHA argues the district court abused its discretion in certifying the

class action because the plaintiffs failed to establish the class is so large that

joinder of members would be impractical.         See Iowa Rs. Civ. P. 1.261(1),

1.262(2)(a). Although the district court cited the size of the class in determining

joinder would be impractical, the DMMHA argues that “sheer numbers are not

always determinative.”

       Iowa has adopted the general rule “that if the class is large, numbers

alone are dispositive to show impracticability.” Legg v. West Bank, 873 N.W.2d

756, 759 (Iowa 2016) (quoting City of Dubuque v. Iowa Trust, 519 N.W.2d 786,

792 (Iowa 1994)). If a class has forty or more members, it “is within the range

where impracticability is presumed.” Id. The district court noted that fifty-five

Royal View Manor residents were named plaintiffs at the time action was filed

and that the potential size of the class is estimated to be between 300 and 600

individuals.   However, it noted that “even a small number of additional suits

would not serve judicial economy.” The court also considered other factors in

determining that joinder was impracticable, citing the low incomes of residents

who “would not likely have the financial resources to bring an individual action”
                                         6

and the possibility that former residents may be dispersed over a wide area. See

Pa. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 120 (2d Cir. 2014)

(listing the financial resources of class members and geographical dispersion as

factors to be considered in determining whether a class is superior to joinder in a

particular case).

       The district court considered the appropriate factors in determining

whether joinder would be impracticable. The number of plaintiffs already named

in the action exceeds the threshold at which we presume impracticability. The

estimated size of the class is five to ten times larger. Additionally, “[a]ny doubts

regarding joinder impracticability should be resolved in favor of upholding the

class.” City of Dubuque, 519 N.W.2d at 792. For these reasons, the district

court’s determination that joinder is impracticable is neither untenable nor

unreasonable, and the district court was acting within its discretion in conclusion

that joinder would be impractical.

       B. Commonality and Predominance.

       The DMMHA also challenges the class certification by claiming that

individual issues predominate over class questions. It argues the district court

permitted class certification “based upon generalized proof relating to the building

as a whole” when the question of whether a warranty of habitability has been

breached for a particular apartment so as to render it uninhabitable depends on

the circumstances of each individual case.

       The predominance issue encompasses both the second and third

requirement for class certification. See Legg, 873 N.W.2d at 759-62 (analyzing

the “predominance” question under the commonality prong and acknowledging it
                                           7


as an element to be considered in determining whether a class action should be

permitted for the fair and efficient adjudication of the controversy).         But see

Freeman, 895 N.W.2d 115-19 (analyzing the questions of commonality and

predominance separately). In order to certify a class action, there must be a

question of law or fact that is common to the class.           See Iowa Rs. Civ. P.

1.261(2), 1.262(2)(a). Additionally, class certification must provide for “the fair

and efficient adjudication of the controversy.” Iowa R. Civ. P. 1.262(2)(b). One

of the factors the court must “consider and give appropriate weight” 1 in

determining whether class certification will lead to fair and efficient adjudication is

“[w]hether common questions of law or fact predominate over any questions

affecting only individual members.” Iowa R. Civ. P. 1.263(1)(e); accord Freeman,

895 N.W.2d at 115.

       The district court found there are “unquestionably” common issues of law

and fact, noting that the claims against the DMMHA are limited to tenants of the

same apartment building and based on a bed bug infestation at that building.

The court observed that although some tenant’s apartments were not infested by

bed bugs during their residency at Royal View Manor, the infestation was

widespread and covered “the vast majority of the apartments” at Royal View

Manor at some point. On that basis, the court noted that some of the tenants

may have stronger claims but concluded that, if necessary, it could create

subclasses to manage the litigation.           Ultimately, the court concluded class

1
   We note that the district court has “considerable discretion” in weighing the factors
listed in rule 1.263(1). See Freeman, 895 N.W.2d at 115. Even if we were to find
individual questions predominate, this factor is only one of thirteen the court must
consider in determining whether the class action would provide fair and efficient
adjudication of the controversy. See Iowa R. Civ. P. 1.263(1).
                                          8


certification would benefit judicial economy because that there would be

“considerable duplication of evidence showing the nature of the bed bug problem

at Royal View and the efforts the [DMMHA] used to attempt to combat the

problem” if the suits were brought individually. It noted that “[t]he policy at the

very core of the class action mechanism is to overcome the problem that small

recoveries do not provide the incentive for any individual to bring a solo action

prosecuting his or her rights . . . by aggregating the relatively paltry potential

recoveries into something worth [an attorney’s] labor.” Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 617 (1997). Because the class of Royal View Manor

tenants “consists of low-income individuals who do not likely have the resources

to file and present a claim on their own” and that some of whose claims “may be

relatively small,” the district court determined that class certification would satisfy

this policy. Finally, the court noted that fifty-five residents were already plaintiffs

in the lawsuit, and determined there is no reason for believing class certification

“will otherwise interfere with the rights any of the class members would have if

filing or maintaining a separate cause of action.”

       Our supreme court has noted that the test for predominance is a

pragmatic one. See Luttenegger v. Conseco Fin. Servicing Corp., 671 N.W.2d

425, 437 (Iowa 2003). The facts relating to each class member need not be

identical. Id. Nor must they be dispositive. See id. The common questions

need not even be determinative or significant. See id. As long as one or more

significant common questions of fact or law can be resolved for all members of

the class in a single adjudication, class certification is justified. See id. If the

defendant’s liability is based on a common course of conduct, variation in the
                                             9


amount of individual class members’ damages will not defeat certification of the

class action. Id.

       There is a common nucleus of operative fact with regard to the DMMHA’s

conduct, which creates a basis for its liability. The plaintiffs allege a widespread

bed bug infestation existed at Royal View Manor for a number of years, which

affected the majority of apartment units at some point in time. The plaintiffs

allege that the DMMHA rented units at Royal View Manor with knowledge of the

bed bug infestation while failing to disclose the condition. They also allege the

DMMHA failed to take reasonable measures to remedy the infestation after

receiving notice of it.       Although the DMMHA argues there are questions

concerning whether the infestation affected each class member’s individual

apartment unit, the underlying basis for the plaintiffs’ claim is that the bed bug

infestation rendered Royal View Manor uninhabitable as a whole—regardless of

whether the infestation was present in an individual’s apartment unit. 2               Even

though those class members with infestations in individual apartment units

sustained greater damages than those who did not, this disparity will not defeat

certification of the class action.

       The district court appropriately considered and weighed the factors before




2
  With regard to the merit of the plaintiffs’ claims as a whole, “[o]ur class action rules do
not permit an inquiry into the merits of class action claims for relief.” See Luttenegger,
671 N.W.2d at 438. Class certification is a procedural question. See id. Because the
DMMHA did not move for summary judgment, the question of whether the actual is
legally or factually meritorious is not before us. See id. at 438.
                                          10


it in determining the class certification would provide a fair and efficient

adjudication of the controversy. Because we are unable to find the district court

abused its discretion in certifying the class action, we affirm.

       AFFIRMED.
