                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


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

                          MEMORANDUM OPINION AND ORDER
      (REGARDING CLASS NOTICE AND DECERTIFICATION OF SPECIAL DAMAGES CLASS)

I.     BACKGROUND AND PROCEDURAL HISTORY

       As more fully explained in this Court's earlier opinions, see, e.g., Barnes v. District of

 Columbia, 793 F. Supp. 2d 260, 265 (D.D.C. 2011), this case involves overdetentions and strip

 searches at the District’s jail facilities. This is the second of two virtually identical class actions

 filed against the District involving overdetentions and strip searches at its jails. The first one,

 Bynum v. District of Columbia, settled in January 2006 pursuant to an agreement designed to

 remedy the overdetention and strip search problems. 412 F. Supp. 2d 73 (D.D.C. 2006). The

 settlement required the District to set aside $3 million from the $12 million settlement fund to

 build a new inmate processing center. Id. at 83.

       This Court was initially hopeful that the Bynum settlement would produce “significant

 policy changes in the operation of the Department of Corrections.” Id. at 85. However, the

 overdetention and strip search problems continued unabated for well over a year, precipitating

 the filing of the instant lawsuit. Barnes, 793 F. Supp. 2d at 267–68. In February 2006, Carl
Barnes and several other named plaintiffs brought suit under 42 U.S.C. § 1983, alleging that the

District was liable for overdetentions and strip searches that violated the Constitution. Pls.’

Second Am. Compl. ¶¶ 43, 44, ECF No. 12. The Court later certified the case as a class action.

Barnes v. District of Columbia, 242 F.R.D. 113, 120 (D.D.C. 2007). Specifically, the Court

certified the case as a hybrid class action, with plaintiffs’ claims for injunctive and declaratory

relief certified under Rule 23(b)(2) of the Federal Rules of Civil Procedure, and plaintiffs’

claims for “monetary damages” certified under Rule 23(b)(3). Id. at 124. The Court defined

both an “overdetention” and “strip search” class, id. at 120–21, and later ordered the case

bifurcated into liability and damages phases. Order, Aug. 31, 2009, ECF No. 65.

      After discovery on liability concluded, the parties filed cross-motions for summary

judgment, and the Court ruled on those motions in June 2011. Barnes, 793 F. Supp. 2d at 273–

91. The Court held, inter alia, that the District was liable for overdetentions that occurred at its

jail facilities from September 1, 2005, up to and including December 31, 2006. Id. at 285. The

Court determined that genuine issues of material fact precluded a finding of summary judgment

for plaintiffs or for the District as to the District’s liability for overdetentions that occurred from

January 1, 2007, to February 25, 2008. Id. at 286. As to overdetentions that occurred from

February 26, 2008, to the present, the Court found that the District was not liable as a matter of

law. Id. However, as to any overdetentions caused by the DOC’s enforcement of the “10 p.m.

cut-off rule,” the Court found the District liable during all parts of the class period. Id. at 283.

As to the DOC’s policy of strip searching inmates entitled to release, the Court found that such

class members’ Fourth Amendment rights were violated and that the District was liable. Id. at

291. Following the Court’s issuance of this ruling, and upon the request of the parties, the

Court stayed the case for sixty days and referred it to a magistrate judge for mediation. Order,



                                                  2
    Aug. 9, 2011, ECF No. 311. Settlement discussions, however, failed. 1

          Thereafter, the parties submitted proposals for proceeding, discussing how the liability

    and damages trials should go forward. Barnes v. District of Columbia, 278 F.R.D. 14, 16

    (D.D.C. 2011).    On December 7, 2011, the Court made several rulings pursuant to these

    proposals, including decertifying the plaintiffs’ claims for special damages:

          As to “special” damages—such as damages for emotional distress, lost wages, or
          other types of compensatory damages other than general damages as defined
          above—the Court will decertify the class as to such individualized damages.
          While the Court previously certified plaintiffs’ claims for “monetary damages”
          generally pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure,
          Barnes, 242 F.R.D. at 120, plaintiffs’ clarification at this stage of their intention to
          seek special damages on a classwide basis necessitates this Court’s clarification
          that its class certification Order does not extend to such damages. Because not all
          members of the strip search and overdetention classes will have been impacted in
          the same way, because of differences in those experiences as well as differences
          in class members’ backgrounds and personal characteristics, questions affecting
          individual members of the class will necessarily predominate over any questions
          of law or fact common to the class. See Fed.R.Civ.P. 23(b)(3). Therefore
          certifying such damages under Rule 23(b)(3) is inappropriate. Adjudication of
          claims for special damages must proceed on an individual basis.

Id. at 22. The Court officially “ORDERED that plaintiffs’ claims for special damages are

decertified and must proceed on an individual basis.” Id. at 23. Almost a year after this Court

ordered the plaintiffs’ special damages class decertified, the plaintiffs filed a Motion for Stay of

the Decertification Order, to Defer Class Notice, and For Order that Defendant Bear the Cost of

Notice When it is Approved, Dec. 4, 2012, ECF No. 400. The plaintiffs request that the stay of

the decertification be made retroactive, nunc pro tunc, to December 7, 2011. Id. at 1. The

District filed an opposition, agreeing to pay for notice, delay notice, and stay decertification; but

strenuously opposing a nunc pro tunc stay of the decertification order. Def.’s Mem. & P.&A. in

Partial Opp’n to Pls.’ Mot. (“Def.’s Partial Opp’n”), Dec. 12, 2012, ECF No. 405. Upon


1
 The Court has adopted the previous three paragraphs of background information from its opinion in Barnes v.
District of Columbia, 278 F.R.D. 14, 16–17 (D.D.C. 2011).

                                                     3
consideration of the plaintiffs’ motion, the defendant’s partial opposition, and the plaintiffs’

reply thereto, Pls.’ Reply, Dec. 28, 2012, ECF No. 406, the Court grants in part the plaintiffs’

motion. The Court will stay decertification of the special damages class nunc pro tunc to

December 4, 2012—the date the plaintiffs first asked for a stay. The Court will order the

defendant to bear the cost of such notice, and order that such notice be provided—at the

District’s option—within thirty days after the Court’s Order resolving the liability trial, or within

thirty days after the Court’s Order resolving all remaining class matters.

II.    DISCUSSION

       This is a difficult decision. On one hand, the Court believes if plaintiffs had asked for a

stay a year ago, the Court would have agreed. On the other hand, the plaintiffs provide no reason

why this request comes a year after the decertification order. Approaching this issue, the Court

considers its authority to issue stays nunc pro tunc, whether doing so would unduly prejudice the

District or would “reward” the plaintiffs’ lawyers for their lack of diligence, the interests of the

individual plaintiffs, and the Court’s interest in having the Barnes class action proceed in an

orderly manner.     After carefully considering these factors, the Court finds that a stay is

appropriate, and that the Court should enter it nunc pro tunc on December 4, 2012, the date

plaintiffs first requested a stay—not December 7, 2011, the date requested by plaintiffs.

       First, this Court believes it has the discretion to stay its special damages decertification

order, pending resolution of the remaining class claims.          The Court may have deferred

decertification of the special damages class—or notice thereof—until after the trial on liability as

an exercise of its broad power to manage class actions in an orderly and efficient manner. See,

e.g., In re Visa Check/MasterMoney Antitrust Litigation, 280 F.3d 124, 141 (2d Cir. 2001)

(“There are a number of management tools available to a district court to address any



                                                 4
individualized damages issues that might arise in a class action, including…(3) decertifying the

class after the liability trial and providing notice to class members concerning how they may

proceed to prove damages….We emphasize that the issue of manageability of a proposed class

action is always a matter of justifiable and serious concern for the trial court and peculiarly

within its discretion.”) (internal quotation marks omitted).

         Puffer v. Allstate Ins. Co., 614 F. Supp. 3d 905 (N.D. Ill. 2009) suggests that it may be

inappropriate for a court to stay the effect of its decertification order on the resumption of the

statute of limitations. As discussed later, the Court agrees it should not issue a broad order

retroactively tolling the statute of limitations for a wide class. However, Puffer does not prevent

the Court from entering a stay of its decertification order to protect the orderly resolution of the

remaining class issues.           In Puffer, the court never certified a class at all, denying class

certification outright. 614 F. Supp. 3d 907. Therefore, there was no reason to stay the denial of

certification, other than to give individual plaintiffs the benefit of a longer statute of limitations.

         In this case, it makes sense to stay the decertification of the special damages class at least

until a jury has decided the District’s liability for overdetentions. It is a waste of judicial

resources to have plaintiffs individually argue that the District was liable for their overdetentions,

when a jury may resolve that issue class-wide in a few months. 2 While special damages claims

are not amenable to class-wide resolution, each special damages claim will likely incorporate a

legal determination—whether the District was liable for overdetentions that occurred at DOC

facilities—that is amenable to class-wide resolution.                      The District agrees that a stay of

decertification is appropriate, but argues that it should not be retroactive. See Def.’s Partial

Opp’n (District “opposes plaintiffs’ request to stay, nunc pro tunc, the effect of [the


2
  If there is no stay of decertification, and if notice of decertification is issued immediately, the individual plaintiffs
may rush to court to preserve their claims before the class-wide proceedings have had a chance to conclude.

                                                            5
decertification] decision to the date it issued.                   Any such stay should only be entered

prospectively.”); Def.’s Proposed Order, Dec. 12, 2012, ECF No. 405-1 (asking Court to

“ORDER[], that the Court’s decertification decision regarding the claims for special damages, as

reflected in the Memorandum and Order (Trial Plan) of December 7, 2011 (Doc. No. 328), at 14,

is hereby STAYED as of the date of this Order”) Exercising the Court’s considerable discretion

in managing a class action, it finds that staying the special damages class decertification is

appropriate. Later, the Court discusses whether such a stay should issue nunc pro tunc.

         The Court will also order that notice be provided at the expense of the District. The

District has already agreed to pay for notice. Def.’s Partial Opp’n 7 (“the District agrees that

notice should be provided to the class members regarding the Court’s decertification decision,

and conceded that it should pay the costs of such notice in light of the liability already

imposed”). The District has also agreed to delay such notice until after the Court determines

final liability in this matter. Def.’s Proposed Order 2 (asking Court to “ORDER[], that the

parties shall meet and confer on the mechanics of the notice (the reasonable costs of which will

be paid by the District), and present a joint proposed notice…no later than thirty (30) days after

the date of the Court’s Order determining final liability in this matter.”). Delaying notice until

after the Court determines liability mitigates the risk that individual plaintiffs will file a flood of

cases to preserve their rights. It is unclear from the District’s proposed order whether—in

referring to “final liability in this matter”—the District refers to the upcoming liability trial

alone, or the District’s total “liability,” including their financial “liability” for general damages. 3

The plaintiffs have argued that it would be more “economical” for the District to provide notice

once, after all class matters have been resolved. However, since the District is paying for notice,

3
  The Court thinks, based on the District’s statements at the last pretrial hearing, that the District wishes to send out
notice after the liability trial, not after the general damages trial. Out of an abundance of caution, and respect for the
wishes of the District, the Court will ask the District to clarify what it means in its proposed order.

                                                            6
the Court will allow it to decide when to provide notice, and asks the District to clarify what it

means by “final liability in this matter.” Therefore, the Court will order that proposed notice be

provided for this Court’s approval—at the District’s option—within thirty days after the Court’s

Order resolving the issues related to the upcoming liability trial, or within thirty days after the

Court’s Order resolving all remaining class matters.

       The parties have generally agreed: (1) the Court should stay the decertification order; (2)

that the District should pay for the cost of notice; and (3) notice should be delayed at least until

after the trial on liability is resolved. The only remaining question is whether the Court should

make its stay of the decertification order retroactive.

       In the background is how the special damages class decertification, or a retroactive stay

of that order, would affect the running of the statute of limitations for individual class members.

“The filing of a class action tolls the statute of limitations for all members of the class[.]” Culver

v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir. 2002). The filing of the original Complaint

tolled the statute of limitations for each class members’ claims as of February 26, 2006. Compl.,

ECF No. 1. The parties disagree over whether the statute of limitations began to run again when

the Court ordered the special damages class decertified. The District argues:

       “[D]ecertification has the same effect on the members of the class [as denying
       certification], so far as the running of the statute of limitations is concerned[.]”
       Culver, 277 F.3d at 915. Here, when the Court decertified plaintiffs’ claims for
       special damages, on December 7, 2011, the statute of limitations on those claims
       resumed running.

Def.’s Partial Opp’n 3. The plaintiffs claim that the District mistakenly relies on cases that “all

involved either outright denial of class certification at the outset…or complete decertification of

the class,” and argues that “because the class has been and remains certified and the class claims

have not been completely resolved, the statute of limitations is not running.” Pls.’ Reply 3–4.



                                                  7
       Despite their position on the statute of limitations, the plaintiffs still think a retroactive

stay is necessary, arguing:

       [T]he correct interpretation is that, because there remains a certified class, the
       statute of limitations does not run until the class claims are resolved.
       Nonetheless, in order to avoid having to litigate this issue later, and to provide
       class members complete certainty, the Court should enter an order staying its
       partial decertification order, and should do so nunc pro tunc. If the Court agrees
       with Plaintiffs’ analysis of the statute of limitations, it is still advisable to
       eliminate any potential confusion on the issue by entering a stay order.

Id. at 8.   It is not clear whether the statute of limitations began running after the partial

decertification order. There is no clear guidance from this Circuit on this issue. The Court feels

it is unnecessary to determine this issue at this time.

       Class counsel worries that individual plaintiffs will rush to file individual damages claims

unless they can be assured that they will not encounter statute of limitations problems. The

notice that the statute of limitations has begun to run typically creates the risk of a “rush.” The

parties have already agreed to delay notice until, at least, after the liability trial. Individual

plaintiffs, largely unaware that their special damages claims have been decertified for over a

year, have yet to flood the Court with individual claims. The Court does not see how making the

stay retroactive to December 2011 promotes the manageability of the class action before it.

       In effect, the plaintiffs ask the Court to either: (1) rule that the statute of limitations has

not run on special damages claims, and issue a stay nunc pro tunc to protect that ruling; or (2)

make a ruling applying equitable or retroactive tolling to all class members. It is not appropriate

for this Court, through a retroactive stay of a decertification order, to “make a ruling that

all…class member are entitled to equitable tolling of the statute of limitations.” Puffer, 614 F.

Supp. 2d at 908; see also id. at 917 (tolling analysis is “fact-specific” and issuing “blanket tolling

order” is inappropriate); Green v. Harbor Freight Tools USA, Inc., __ F. Supp. 2d. __, 2012 WL



                                                  8
6561261, *1 & n.6 (D. Kan. Dec. 14, 2012) (inappropriate to use broad tolling order because

tolling should be addressed case-by-case if and when individual plaintiffs file suit); Radanovich

v. Combined Ins. Co. of Am., 271 F. Supp. 2d 1075, 1079 (N.D. Ill. 2003) (determinations of

tolling must be made on case-by-case basis “if and when” individual files suit). The Court sees

no need to make such an across-the-board ruling on whether the statute of limitations has been

running on special damages claims, or whether equitable tolling applies to individual claims.

Such determinations would require premature resolution of questions for which there is no clear

guidance from the Circuit.

        Additionally, the Court feels that making the stay retroactive to December 2011 would be

an inappropriate use of its power to enter orders nunc pro tunc. As held by the D.C. Circuit, “A

judgment entered nunc pro tunc is one given effect as of a date in the past. The principle

underlying entry of a judgment or an order nunc pro tunc is that of fairness to the parties, seeking

to rectify any injustice suffered by them on account of judicial delay.” Weil v. Markowitz, 829

F.2d 166, 174–75 (D.C. Cir. 1987) (emphasis added). The Circuit continued:

        As the Supreme Court has stated, a “nunc pro tunc order should be granted or
        refused, as justice may require, in view of the circumstances of the particular
        case.” Mitchell v. Overman, 103 U.S. (13 Otto) 62, 65 (1881). Entry nunc pro
        tunc thus must have a proper factual basis.

Id. There is no proper factual basis for an entry nunc pro tunc extending back to December

2011.    Justice does not require the retroactive application of the stay, when class counsel

provides no reason whatsoever why they could not have asked for the stay sooner. Class counsel

has not made out a particularly strong case for “prejudice”—their case being that if the stay is

not entered nunc pro tunc, each plaintiff may have to individually request equitable tolling, or

argue that the statute of limitations did not start running again in December 2011. This does not

rise to the level of “prejudice,” as several courts have found that such statute of limitations and

                                                 9
tolling decisions should be made on a case-by-case basis. See, e.g., Puffer, 614 F. Supp. 2d at

908; Harbor Freight Tools, 2012 WL 6561261, *1 & n.6; Radanovich, 271 F. Supp. 2d at 1079.

The Court is not convinced that the District would suffer considerable prejudice if the Court

made the stay retroactive, but this alone is not a reason to overlook class counsel’s unexcused

failure to ask for a stay earlier.

        Courts typically issue orders nunc pro tunc when the Court seeks to “rectify any injustice

suffered by [the parties] on account of judicial delay.” Markowitz, 829 F.2d at 175 (emphasis

added); see also Mitchell, 103 U.S. (13 Otto) at 64–65 (where delay has been caused either for a

court’s convenience, or by intricacy of the questions involved, or by any other cause not

attributable to the laches of the parties, the judgment or the decree may be entered

retrospectively: “[i]n such cases…it is the duty of the court to see that the parties shall not suffer

by the delay”). Here, most of the delay is not attributable to the Court. When no party asked the

Court to stay the partial decertification order, the Court can hardly be blamed for not doing so.

The plaintiffs do not argue that they could not have asked for a stay sooner because of some

procedural hurdle outside of their control. The Court is willing, in the interest of total fairness to

individual class members, to issue its stay nunc pro tunc to December 4, 2012—the date the

plaintiffs first asked for a stay. The Court finds no proper factual basis for making its stay

retroactive to December 7, 2011—the date the Court decertified the special damages class.

III.    CONCLUSION AND ORDER

        Upon consideration of the plaintiffs’ Motion for Stay of Decertification Order, to Defer

Class Notice, And for Order that Defendant Bear the Cost of Notice When it is Provided, Dec. 4,

2012, ECF No. 400, the defendant’s Partial Opposition to Plaintiffs’ Motion for Stay, Dec. 21,

2012, ECF No. 405, the plaintiffs’ Reply thereto, Dec. 28, 2012, ECF No. 406, the record herein,



                                                 10
and for the reasons stated in this memorandum opinion and order, the Court hereby

       ORDERS that plaintiffs’ motion for nunc pro tunc order staying the damages

decertification order [400] is GRANTED IN PART AND DENIED IN PART; the Court further

       ORDERS that the Court’s decertification decision regarding the claims for special

damages, as reflected in the Memorandum and Order (Trial Plan) of December 7, 2011 (ECF No.

328) at 14, is hereby STAYED nunc pro tunc as of December 4, 2012; the Court further

       ORDERS that plaintiffs’ motion to defer class notice and for defendant to bear the cost of

notice [400] is GRANTED IN PART AND DENIED IN PART; the Court further

       ORDERS that the plaintiffs shall draft a proposed notice that satisfies the purposes of

Fed. R. Civ. P. 23(d)(1) and submit it to the District for review and comment; the Court further

       ORDERS that the parties shall meet and confer on the mechanics of distribution of notice

(the reasonable costs of which will be paid by the District), and present a joint notice and

method(s) of publication to the Court for its approval; the Court further

       ORDERS that the District, at its option, may present such notice to the Court either:

       •   No later than thirty (30) days from the date of the Court’s Order determining
           the District’s liability for overdetentions for the period covering January 1,
           2007, to February 25, 2008, with the District also undertaking the costs and
           burdens of sending separate notice, if necessary, after the subsequent trial on
           general damages and after any other remaining class issues are resolved; or

       •   No later than thirty (30) days from the date of the Court’s Order resolving all
           class issues, including liability and general damages.

       IT IS SO ORDERED.

       Signed by Royce C. Lamberth, Chief Judge, on February 19, 2013.




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