Case 2:14-cv-04687-ER Document 1 Filed 08/11/14 Page 1 of 44

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOS SOUROVELIS, DOILA WELCH, and NORYS HERNANDEZ, on behalf of themselves and all others similarly situated,
Plaintiffs,
vs.
CITY OF PHILADELPHIA;
MICHAEL A. NUTTER, in his official capacity as Mayor of Philadelphia;
PHILADELPHIA DISTRICT ATTORNEY'S OFFICE;
R. SETH WILLIAMS, in his official capacity as District Attorney of Philadelphia; and
CHARLES H. RAMSEY, in his official capacity as Commissioner of the Philadelphia Police Department;
Defendants.

COMPLAINT-CLASS ACTION Civil Action No. - -

CLASS-ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION 1. Plaintiffs Christos Sourovelis, Doila Welch, and Norys Hernandez ("Named Plaintiffs") bring this civil-rights lawsuit on behalf of themselves and all others similarly situated under Rule 23(b)(2) of the Federal Rules of Civil Procedure for claims of primarily injunctive and declaratory relief for violations of their rights guaranteed by the Due Process Clause of the Fourteenth Amendment. 2. Under a little-known legal device called civil forfeiture, Philadelphia law enforcement has been confiscating property from its residents under the fiction that the property itself is "guilty" of a crime. Even if the owner of the property has no involvement or even knowledge of the alleged crime, as with the Named Plaintiffs in this action, the Philadelphia District Attorney's Office sues the property in civil actions (with unusual names like Commonwealth v. One 1958 Plymouth Sedan and Commonwealth v. 605 University Drive, State College, Pa.), and requires property owners to come to court to prove their innocence. Notwithstanding the direct conflict of interest, if the Philadelphia District Attorney's Office ("Philadelphia D.A.'s Office") wins the lawsuit against the property, it retains the property or proceeds from its sale for the office's own use. 3. While Pennsylvania law authorizes civil forfeiture, the Philadelphia D.A. 's Office has turned this tool into a veritable machine, devouring real and personal property from thousands of residents, many of whom are innocent, and converting that property into a $5.8 million average annual stream of revenue. Using a rigged system of copied "form" legal documents and endless proceedings in a court run by the prosecutors themselves, Philadelphia's "robo-forfeiture" program stripped thousands of City residents of over 1,000 residences, 3,200 vehicles, and $44 million in cash over an eleven-year period, ultimately raking in more than $64
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million in revenue wholly outside its appropriated budget.

4. Plaintiffs bring this class action to enjoin and declare unconstitutional

Philadelphia's civil-forfeiture policies and practices, which not only unconstitutionally deprive

people of their property, but also of their constitutional right to due process of law.

JURISDICTION

5. Plaintiffs bring this class-action, civil-rights lawsuit pursuant to 42 U.S.C. § 1983

for violations of their rights under the Due Process Clause of the Fourteenth Amendment; 42

U.S.C. § 1988; and the Declaratory Judgments Act, 28 U.S.C. §§ 2201, 2202. Plaintiffs seek

injunctive and declaratory relief against Defendants' policies and practices in investigating,

prosecuting, and profiting from civil-forfeiture actions.

6. Accordingly, this Court has jurisdiction over this action under 28 U.S.C. §§ 1331

(federal question jurisdiction) and 1343 (civil-rights jurisdiction).

VENUE

7. Venue is proper in the United States District Court for the Eastern District of

Pennsylvania under 28 U.S.C. § 1391(b)(2). A substantial part of the events or omissions giving

rise to Plaintiffs' claims occurred in Philadelphia, which is located in the Eastern District of

Pennsylvania. See 28 U.S.C. § 118.

8. Venue is also proper under 28 U.S.C. § 1391(b)(l) because all Defendants are

domiciled in the Commonwealth of Pennsylvania, and at least one Defendant is domiciled in

Philadelphia.

THE PARTIES

I.

THE PLAINTIFFS

9. Plaintiff Christos Sourovelis is an adult lawful permanent resident of the United

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States. Mr. Sourovelis owns and operates his own business in home construction, a trade his family practiced in Athens, Greece. He has lived in Philadelphia for over 30 years. In 2007, Mr. Sourovelis purchased a single-family home in North Philadelphia and has been living there with his family since December of that year. Mr. Sourovelis holds title to this property. He has never been charged with any crime. Yet, without any notice or opportunity to be heard, Mr. Sourovelis and his family were evicted from their home for seven days by officers of the Philadelphia Police Department due to Defendants' civil-forfeiture policies and practices. Mr. Sourovelis also stands to lose his family's home through a civil-forfeiture proceeding initiated by District Attorney Williams and the Philadelphia D.A.'s Office.
10. PlaintiffDoila Welch is an adult citizen of the United States. In the 1990s, her parents bought a three-story, six-bedroom, multi-family row home in South Philadelphia. When they passed away, Ms. Welch along with her siblings inherited the property which serves as a haven to her, her siblings, and their children. Ms. Welch is the administrator of the estate. Currently, Ms. Welch resides in this home with her children, brother, and sister. Ms. Welch suffers from lupus and severe rheumatoid arthritis which make it difficult for her to be mobile. Ms. Welch's sister, who lives with her, suffers from a cognitive disability. Neither Ms. Welch nor her siblings have been charged with any crime. Yet, she stands to lose her family home through a civil-forfeiture proceeding initiated by District Attorney Williams and the Philadelphia D.A.'s Office.
11. Plaintiff Norys Hernandez was born in Puerto Rico and is an adult citizen of the United States. After working for years in the financial sector at Wells Fargo, Mrs. Hernandez recently finished school to become a medical office assistant. Ms. Hernandez and her family have lived in Philadelphia for over 25 years and together with her sister, Sonia Gonzalez, she
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owns a two-story row house in North Philadelphia. Mrs. Hernandez and her family purchased this property to provide her sister and her sister's children with a home. Although police arrested Mrs. Hernandez's nephew for a drug crime, neither Mrs. Hernandez nor her sister were charged with any crime. Yet, Mrs. Hernandez and her sister stand to lose this property through a civilforfeiture proceeding initiated by District Attorney Williams and the Philadelphia D.A.'s Office.
12. Plaintiffs Mr. Sourovelis, Ms. Welch, and Mrs. Hernandez represent a putative class of all individuals who own property that is or will be the subject of a forfeiture petition brought by the Philadelphia D.A. 's Office. II. THE DEFENDANTS
13. Defendant City of Philadelphia is a municipality of the Commonwealth of Pennsylvania. The City of Philadelphia funds both the Philadelphia District Attorney's Office and the Philadelphia Police Department. The City of Philadelphia is Pennsylvania's only consolidated city-county and covers over 140 square miles with over 1.5 million residents.
14. Defendant Michael A. Nutter is the mayor of Philadelphia. As Mayor, he is responsible for supervising Police Commissioner Ramsey. Mayor Nutter is sued in his official capacity.
15. Defendant Philadelphia District Attorney's Office ("Philadelphia D.A.' s Office") is the largest prosecutor's office in Pennsylvania, employing 600 lawyers, detectives, and support staff. According to the website of the Philadelphia D.A. 's Office, the Public Nuisance Task Force-a specialized unit within the Philadelphia D.A.'s Special Operations Division"handles all forfeiture-related litigation, the maintenance of seized assets and the investigation of potentially forfeitable assets." The Philadelphia D.A.'s Office receives forfeited property or its proceeds. Under state law, the forfeited property and its proceeds must be used to enforce
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provisions of the Controlled Substance, Drug, Device, and Cosmetic Act. 16. Defendant R. Seth Williams is the District Attorney of Philadelphia, the chief law
enforcement officer for the City and County of Philadelphia. Under the Commonwealth of Pennsylvania's Constitution and statutes, D.A. Williams is an independent officer, directly elected by Philadelphia residents. D.A. Williams is responsible for overseeing all aspects of the Philadelphia D.A.'s Office, including the Public Nuisance Task Force. Upon information and belief, D.A. Williams has signed an agreement to share forfeiture proceeds with the Philadelphia Police Department. D.A. Williams is sued in his official capacity.
17. Defendant Charles H. Ramsey is the Commissioner of the Philadelphia Police Department, which is the City's primary law-enforcement agency. As head of the nation's fourth largest police department, Commissioner Ramsey is responsible for overseeing the 6,600 sworn members and 800 civilian personnel serving the 21 police districts in Philadelphia. Officers of the Philadelphia Police Department enforce civil-forfeiture laws, in part, by drafting arrest reports for predicate offenses, drafting receipts for property that has been seized for civil forfeiture, and enforcing orders to seize and seal real property for forfeiture. The Philadelphia Police Department has received forfeited property or its proceeds for the purpose of enforcing provisions of the Controlled Substance, Drug, Device, and Cosmetic Act. Upon information and belief, Commissioner Ramsey has signed an agreement on behalf of the Philadelphia Police Department to share in forfeiture proceeds with the Philadelphia D.A.'s Office. Commissioner Ramsey is sued in his official capacity.
18. Defendants the Philadelphia D.A.'s Office, D.A. Williams and Police Commissioner Ramsey are collectively referred to as Law-Enforcement Defendants.
19. At all relevant times, all Defendants were acting under color of state law.
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FACTUAL ALLEGATIONS

I.

PENNSYLVANIA's CONTROLLED SUBSTANCES FORFEITURE ACT

20. Civil forfeiture is a legal mechanism by which law enforcement can permanently

deprive individuals of real and personal property that is more likely than not connected to

specified crimes.

21. Based on the legal fiction that the property itself is guilty, a civil-forfeiture action

in Pennsylvania is an in rem proceeding against the property itself, with the Commonwealth as

the plaintiff and the property as the defendant.

22. Although forfeiture proceedings are civil in form, Pennsylvania courts have

recognized that forfeiture proceedings are quasi-criminal in nature because they involve

constitutional rights normally only implicated in criminal proceedings.

23. Nevertheless, property owners defending against forfeiture proceedings are not

guaranteed counsel and the allocations of burdens of proof mirror those of civil rather than

criminal proceedings. Specifically, in civil-forfeiture cases the government is only required to

prove the property's connection to a crime by a preponderance of the evidence, rather than the

more difficult "beyond a reasonable doubt" standard that applies in criminal proceedings.

24. In Pennsylvania, one of the most common statutory bases for forfeiture is the

Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. §§ 6801 and 6802. Enacted in 1988, the

Controlled Substances Forfeiture Act authorizes forfeiture of real and personal property

connected to a violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.

Con. Stat. §§ 780-101 to 780-144, (a "controlled-substance violation").

25. The Controlled Substances Forfeiture Act enumerates the kind of property subject

to forfeiture. 42 Pa. Cons. Stat. § 6801 (a). The Act specifically subjects the following property

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to forfeiture: • all vehicles "which are used or are intended for use to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment" of drugs, drug paraphernalia, or materials used to manufacture drugs; • "money, negotiable instruments, securities or other things of value" that are: 1. "furnished or intended to be furnished by any person in exchange for" drugs 2. traceable as proceeds of such an exchange; or 3. used or intended to be used to facilitate any controlled-substances violation; and • "[r]eal property used or intended to be used to facilitate" a controlled-substances violation.
/d.§ 680l(a)(4), (6). Additionally, money "found in close proximity" to illegal drugs is "rebuttably presumed to be proceeds derived from the selling of' illegal drugs. /d. § 680l(a)(6)(ii). Under the Act, law enforcement may seize the above-listed types of property without process if there is probable cause to believe that the property has been used or is intended to be used for a controlled-substance violation. /d.§ 680l(b).
26. The Controlled Substances Forfeiture Act outlines the procedures governing forfeiture. See 42 Pa. Cons. Stat. § 6802. First, it enumerates the required contents of a petition for forfeiture and where it should be filed. /d. § 6802(a). Second, it establishes the requirements for providing sufficient notice of the forfeiture petition to the property owner. /d. § 6802(b)-(e). Third, the Act implements a burden-shifting framework that puts the onus of proving innocence on the property owner; if the Commonwealth produces evidence that the property is subject to forfeiture, its owner must prove his or her lack of knowledge or consent of the conduct giving rise to the forfeiture. Id. § 6802(j). By judicial interpretation, the Act requires an evidentiary hearing in open court before property can be taken from an individual and forfeited to the Commonwealth. Commonwealth v. 605 University Drive, State College, Pa., 61 A.3d 1048,
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1054 (Pa. Commonw. Ct. 2012). 27. The Controlled Substances Forfeiture Act also provides an ex parte procedure to
obtain "a restraining order or injunction, require the execution of a satisfactory performance bond or take any other action to preserve the availability of [the] property ... for forfeiture." 42 Pa. Con. Stat.§ 6802(f). Under§ 6802(g), an ex parte temporary restraining order may be entered "if the Commonwealth demonstrates that there is probable cause to believe that the property with respect to which the order is sought would be subject to forfeiture [ ] and that provision of notice will jeopardize the availability of the property for forfeiture."
28. Finally, the Controlled Substances Forfeiture Act governs the use and distribution of forfeited property and its proceeds. Specifically, if the law enforcement authority seizing the property has county-wide jurisdiction (rather than statewide jurisdiction), the Act requires forfeited property to be transferred to the custody of the district attorney for that county. 42 Pa. Cons. Stat.§ 6801(e).
29. The Act also authorizes district attorneys to either sell forfeited property or retain it for official use. /d. If sold, proceeds from the sale of forfeited property must "be used to pay all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising and court costs." 42 Pa. Cons. Stat.§ 680l(e).
30. The balance of the forfeiture proceeds goes to the district attorney's office, or in cases in which both municipal and state law-enforcement entities were substantially involved, the proceeds are distributed equally between the district attorney and the Attorney General. 42 Pa. Cons. Stat. § 680l(f)-(g).
31. The Act further provides that the "entity having budgetary control shall not anticipate future forfeitures or proceeds therefrom in adoption and approval of the budget for the
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district attorney." 42 Pa. Cons. Stat.§ 6801(f). Consequently, these forfeiture funds are a

"bonus" to law-enforcement agencies and wholly outside oversight by the funding county.

32. The Act requires district attorneys to use forfeited property or derived proceeds to

enforce the provisions of the Controlled Substance, Drug, Device and Cosmetic Act. !d.

§ 680l(h). The Act also authorizes district attorneys to designate forfeiture proceeds for

community-based drug and crime-fighting programs. !d.

33. Based on information from the Attorney General's Office, D.A.'s offices in

Pennsylvania, including Philadelphia, use forfeiture funds to pay salaries and purchase vehicles,

equipment and other items and services of institutional value.

II.

PHILADELPHIA'S FORFEITURE PROGRAM Is UNPRECEDENTED IN SCALE.

34. Cashing in on the authority to retain forfeiture property and derived proceeds, the

Philadelphia District Attorney's Office has brought in more than $90 million in forfeiture

revenue since 1987. See Isaiah Thompson, "The $10 Million Question," Philadelphia City

Paper, Nov. 29, 2012, available at http://issuu.com/phillycp/docs/cp_2012-11-29.

35. Philadelphia has one of the largest municipal forfeiture programs in the country,

yielding an average of $5.8 million in forfeiture revenue each year.

36. By contrast in 2010, Kings County (Brooklyn), with a population 1.5 times that of

Philadelphia, and Los Angeles County, with a population more than 6.5 times that of

Philadelphia, each brought in $1.2 million in annual forfeiture revenue.

37. When measured against other counties in Pennsylvania-in other words, when

measured against other jurisdictions operating under the same state forfeiture law-Philadelphia

is in a class of its own. Between 2004 and 2009, Philadelphia collected approximately $36

million through civil forfeiture-an amount twice that of the three next-largest counties in

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Pennsylvania combined. And since 2009, Philadelphia's forfeiture pot has kept growing. 38. Forfeiture data obtained from the Pennsylvania Office of the Attorney General
reveal the extent to which Philadelphia's forfeiture activity far exceeds that of other Pennsylvania counties. From Fiscal Years 2002 through 2012, the Philadelphia D.A.'s Office collected a total of$64,219,356.00 in forfeiture revenue, while the remaining 66 county D.A.'s Offices collected a combined total of $84,419,638.50. That means that for this eleven-year period, Philadelphia's forfeiture revenue amounted to 43 percent of the statewide total. The amount each D.A.'s Office collected in forfeiture revenue is illustrated below in Table 1.

70000000 60000000 50000000 40000000 30000000 20000000

Table 1 Total Forfeiture Revenue

39. In statistical terms, the amount of Philadelphia's forfeiture revenue is almost 8 standard deviations above the mean. In laymen's terms, Philadelphia is as aberrant as a 7-foottall woman or an 8-foot-tall man.
40. Even accounting for differences in population size and assuming that more populous counties will take in more in forfeiture revenue, the Philadelphia D.A.'s Office is still an outlier. As illustrated below in Table 2, the Philadelphia D.A.'s Office collected $42.59 in per capita forfeiture revenue, more than twice that of the next most active county.
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Table 2 Total Forfeiture Revenue Per Capita

$45.00 ,--··-··-·~-·--·· $40.00

+ Philadelphia

$35.00

$30.00 +-----·- -· --- ··-····· ·-··········-·-·~- .. - ·····-····

$25 .00 +--·---·--·---·········-········· -~- ---- ··-···-----······· ·--·-····················-··············· ··--····-

. ·····-· • :::::~ +--=~=~==--~-· ···==-~=--=-:=-=:~:~--~~~-:

• $10.00 ~i ~~---•~---~-----,_~-~---• -·-···•··-···-

:,.•! f• •....~· ••:.:••• ·~ $5.00
w r $0.00 : •

·~ • • • · - • •

•ii,
-

....-
m

41. From Fiscal Years 2002 through 2012, the amount of civil-forfeiture revenue collected by the Philadelphia D.A. 's Office (prior to any disbursements by the Office) averaged close to one-fifth of the general budget of the D.A.' s Office as appropriated by the City of

Philadelphia. 42. By comparison, the civil-forfeiture revenue taken in by the District Attorney's
Office for Allegheny County, the second largest county in Pennsylvania, averaged approximately

8.7 percent of that office's general appropriated budget. 43. On the expense side of the equation, the Philadelphia D.A.'s Office spends much
of its forfeiture revenue to pay salaries, including the salaries of the prosecutors that administer Philadelphia's civil-forfeiture program.

44. Using forfeiture proceeds to pay the salaries of the very individuals responsible

for pursuing forfeiture presents a direct conflict of interest. 45. The Philadelphia D.A.' s Office spends twice as much of its forfeiture revenue on
salaries as all other county D.A.'s offices combined. From Fiscal Years 2002 through 2012, the

Philadelphia D.A.' s Office spent $25,516,155 of its forfeiture revenue on salaries, compared to

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$12,315,340.43 spent on salaries by all other D.A.' s Offices in the Commonwealth. The amount of forfeiture revenue D.A. offices in the Commonwealth spent on salaries during Fiscal Years 2002 through 2012 is illustrated below in Table 3.

Table 3 Amount of Forfeiture Revenue Spent
on Salaries

$30,000,000.00 $25,000,000.00

_. ------------------------------- --~-~--·--~~-----·-

Philadelphia
-··- ·-------

$20,000,000.00

$15,000,000.00

46. Again, taking into account population size, the total amount per capita that Philadelphia spent on salaries during this time period was $16.92, while all other counties combined only spent $1.11 per capita.
47. In contrast, from Fiscal Years 2002 through 2012, the Philadelphia D.A.'s Office spent none of its forfeiture revenue on community-based drug and crime-fighting programs under 42 Pa. Cons. Stat.§ 6801(h), despite its professed goal of helping communities combat drugs.
48. By written agreement, the Philadelphia D.A.'s Office has shared forfeiture proceeds with the Philadelphia Police Department. Under the terms of this agreement, the first $927,500 forfeited each fiscal year was apportioned as follows: $727,500 to the Philadelphia D.A.' s Office to cover "forfeiture related administrative expenses," including salaries; and
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$200,000 to the Philadelphia Police Department. After distributing the initial $927,500, the agreement calls on the balance of the forfeiture revenue to be divided, with 40 percent going to the Philadelphia D.A.' s Office and 60 percent going to the Philadelphia Police Department. Upon information and belief, District Attorney Williams and Police Commissioner Ramsey have executed a substantially similar agreement to share forfeiture proceeds that is in effect today.
A. Defendants Seize Large Quantities of Personal Property for Forfeiture. 49. Rather than being the product of a few large forfeitures from drug "kingpins," Philadelphia's forfeiture fund is amassed through seizing an unprecedented amount of personal and real property from thousands of ordinary-and often innocent-property owners. 50. The bulk of Philadelphia's forfeiture revenue comes from confiscating cash. 51. From Fiscal Years 2002 through 2012, Philadelphia seized and forfeited $44,291,178.00 in cash. 52. Notably, this amount was accumulated from thousands of cases involving small sums of money, rather than a few large busts. 53. In 2010, Philadelphia filed 8,284 currency forfeiture petitions, with an average of $550 involved in each case. 54. In a random sample of more than 100 currency-forfeiture cases from 2011 to 2012 that investigative reporter Isaiah Thompson reviewed, the median amount of cash at stake in each forfeiture case was only $178. See Isaiah Thompson, "The Cash Machine," Philadelphia City Paper, Nov. 29, 2012, available at http://citypaper.net/article.php?The-Cash-Machine19189. In many of these cases, the amount involved was less than $100. 55. Defendants' pattern, policy and practice of taking such small amounts of money from people who are never convicted of (or even charged with) a crime raises serious concerns
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about whether the seized money is in fact connected to criminal activity. 56. Defendants also seize a large number of vehicles through their forfeiture power.
From Fiscal Years 2002 through 2012, Philadelphia seized and forfeited 3,290 vehicles. 57. Vehicles are frequently seized on the grounds that they are connected to the crime
of soliciting prostitutes. However, neither Pennsylvania law nor the City of Philadelphia Code authorizes forfeiture for solicitation.
58. Philadelphia also relies on civil forfeiture to seize other kinds of personal property from individuals, including but not limited to cell phones, clothing, jewelry, prescription medication, licensed firearms, and in one instance, a woman's jumper cables.
B. Defendants "Seize and Seal" As Well As Restrain Numerous Real Properties for Forfeiture.
59. Philadelphia aggressively uses civil forfeiture to seize and restrain real property on a scale unlike that of any other county in Pennsylvania.
60. The Philadelphia D.A.'s Office files civil forfeiture petitions on 300 to 500 real properties (mostly private residences) annually. Approximately an average of 100 of these properties are forfeited and sold at auction annually with the D.A.'s Office retaining the proceeds. A significant majority of the remaining real property cases "settle" under the threat of civil forfeiture.
61. Meanwhile, from 2008 through 2011, the three next-largest counties in Pennsylvania combined took only a dozen real properties through civil forfeiture.
62. As illustrated in Table 4 below, from Fiscal Years 2002 to 2012, Philadelphia forfeited 1, 172 real properties compared to just 56 real properties forfeited by all other counties combined.
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Table4 Real Property Forfeitures
1400
200 t~----- --------------------------------~--~---~-----------------------
0 ~·······*'········································ ................
III. THIS HIGH VOLUME OF FORFEITURE Is ENABLED BY PHILADELPHIA'S ROBO-
FORFEITURE MACHINE.
63. The enormous volume of forfeiture cases-and ultimately the very substantial amount of revenue generated-is all accomplished through a mechanized, assembly-line system operated by a handful of prosecutors within a specialized unit of the Philadelphia D.A.'s Office called the Public Nuisance Task Force.
64. The Public Nuisance Task Force files thousands of forfeiture petitions each year. 65. In 2011 alone, the Public Nuisance Task Force filed 6,560 civil-forfeiture petitions. 66. By contrast, the Allegheny County D.A.'s Office-which serves the secondlargest county in Pennsylvania-filed roughly just 200 civil-forfeiture petitions from 2008 to 2011. 67. The Public Nuisance Task Force handles all forfeiture-related litigation, the maintenance of seized property, and the investigation of potentially forfeitable property. 68. The Public Nuisance Task Force consists of approximately nine prosecutors, and 15 prosecution assistants, paralegals, and other support staff.
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69. Each assistant district attorney in the Public Nuisance Task Force is assigned to a geographic area of Philadelphia.
70. Each assistant district attorney in the Public Nuisance Task Force is responsible for either civil-forfeiture cases involving personal property or civil-forfeiture cases involving real property.
A. Philadelphia's Forfeiture Machine Uses an Automated Assembly-Line System to Maximize Petitions for Forfeiture, and Ultimately Revenue.
71. The Public Nuisance Task Force generates the high volume of civil-forfeiture petitions by relying on its prosecution assistants, paralegals, and support staff to simply copy information from Philadelphia Police Department Arrest Reports and Property Receipts onto form documents that become the Notice of Forfeiture and Petition for Forfeiture.
72. Before filing petitions for forfeiture of real property, it is the policy and practice of the Public Nuisance Task Force to obtain ex parte temporary restraining orders for real property under 42 Pa. Cons. Stat. § 6802([) and (g) mandating that "no interest in this property (including but not limited to ownership, tenancy, easement, and purchase or rental option) may be sold, assigned, optioned, given, bequeathed or transferred in any manner." The temporary restraining order directs the Prothonotary to file the order without fee and index it as a lis pendens.
73. It is the policy and practice of the Philadelphia D.A.'s Office to apply for temporary restraining orders without making any evidentiary showing that providing the property owner with notice will jeopardize the availability of the property for forfeiture.
74. In addition to applying for temporary restraining orders to restrain the transfer of the target property, it is the policy and practice of the Public Nuisance Task Force to apply for an ex parte order to seize and seal the premises under 42 Pa. Cons. Stat. § 6802([) and (g).
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Applications to seize and seal contain the bald, conclusory allegation that Commonwealth is moving for forfeiture of the real property under 42 Pa. Cons. Stat. §§ 6801, 6802 "because it was used and/or continues to be used (or intended to be used) to commit, or to facilitate the commission of, violations of the Controlled Substances Act." The application also contains minimal factual allegations copied verbatim from the Philadelphia Police Department Arrest Report, which is incorporated and attached to the application.
75. It is the policy and practice of the Public Nuisance Task Force to apply for an order to seize and seal real property without providing any particularized evidence that the order is needed to preserve the specific property for civil forfeiture.
76. It is the policy and practice of the Public Nuisance Task Force to apply for an order to seize and seal real property without making any particularized showing of exigent circumstances or that a temporary restraining order restricting transfer of the property will be insufficient to protect Defendants' interests during the pendency of the civil-forfeiture proceedings.
77. It is the policy and practice of the Public Nuisance Task Force to apply for an order to seize and seal real property without giving property owners any notice or opportunity to be heard.
78. Members of the putative class often first learn that their horne is threatened with forfeiture when officers of the Philadelphia Police Department appear at their horne, and armed with the order to seize and seal the premises, forcibly evict them and all residents without any prior notice.
79. It is Defendants' policy and practice to send property owners threatened with civil forfeiture three form documents: (i) a notice of forfeiture; (ii) a verified petition for forfeiture;
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and (iii) a notice of hearing. 80. The notice of forfeiture is addressed "to the claimant of the within described
property," that is, the person claiming any interest in the property threatened with civil forfeiture. 81. The form notice states that "you are required to file an answer to this petition,
setting forth your title in, and right to possession of, said property within thirty (30) days from the service hereof, and you are also notified that if you fail to file an answer, a decree of forfeiture and condemnation will be entered against the property."
82. The petition for forfeiture contains allegations taken verbatim from the Police Department Arrest Report.
83. The form petition for forfeiture also contains a bare assertion that the property "was used and/or continues to be used (or intended to be used) to commit, or to facilitate the commission of, violations of the Controlled Substance[, Drug, Device and Cosmetic] Act."
84. The petition also includes a form affirmation that Assistant District Attorney Beth Grossman, the head of the Public Nuisance Task Force, or the assigned assistant district attorney "affirm that the facts set forth in the foregoing petition are true and correct to the best of her/his knowledge, information, and belief."
85. The notice of hearing states that a hearing on the forfeiture petition (and if applicable, on the entry of a restraining order and application to seize and seal the property) is set for a specified date and time in Courtroom 478, City Hall, Philadelphia, Pennsylvania.
86. Court records demonstrate that it is Defendants' policy and practice to list anywhere from 40 to 80 civil-forfeiture actions to be heard in Courtroom 478 in a single day.
B. Property Owners Must Make Their Way Down the Legal Rabbit Hole of "Courtroom" 478.
87. Property owners who seek to fight the civil forfeiture and reclaim their property
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must show up in Courtroom 478 in City Hall by 9:00a.m. 88. In Courtroom 478, property owners are instructed to sign in and indicate with a
checkmark on the sign-in sheet the kind of property they are there to save. The sign-in sheet lists the following categories of property: "house," "car," "money," or "gun."
89. Assistant district attorneys with the Public Nuisance Task Force fully control the proceedings inside "Courtroom" 478. There is no judge, no jury, and not even a court reporter to transcribe these "public hearings."
90. The prosecutors occupy both tables reserved for counsel, with prosecutors handling forfeiture cases for real property at the table on the right and prosecutors handling forfeiture cases for personal property at the table on the left.
91. The prosecutors call the civil-forfeiture cases by comparing the sign-in sheet with the docket calendar for Courtroom 478.
92. Upon information and belief, for listed cases in which property owners fail to appear in Courtroom 478, the prosecutors mark the case for default judgment, without any determination, judicial or otherwise, as to the reason the property owner did not appear.
93. For listed cases in which the property owner is present, the assigned prosecutor discusses the case with the property owner. These conversations frequently take place out in the hall, in the empty jury box, or at a small table in the back of the room.
94. On first listings, these conversations are typically short, lasting no more than several minutes. Invariably prosecutors ask the property owners to return with documentation supporting proof of legal ownership to the property.
95. Prosecutors frequently advise property owners that their civil-forfeiture case is not complicated and they do not need an attorney.
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96. Prosecutors routinely give property owners a set of more than 50 interrogatories,

with multiple discrete subparts. These interrogatories must be answered under penalty of

perJury. 97.

In cases in which there is an order to seize and seal, prosecutors compel property

owners to execute an agreement to unseal the residence on certain conditions, including but not

limited to, barring specified individuals including relatives from entering the residence

indefinitely and waiving in any future civil-forfeiture action their statutory innocent-owner

defense and their constitutional defense that the forfeiture constitutes an excessive fine.

98. Prosecutors routinely continue and relist civil-forfeiture cases and they

unilaterally determine whether any documentation provided by the property owner is sufficient.

99. When a case is relisted, the assigned assistant district attorney fills in a form from

the Forfeiture Program of the Civil Trial Division of the First Judicial District of Pennsylvania

Court of Common Pleas of Philadelphia County, which instructs the property owner to return to

Courtroom 478 in City Hall on a specified date (typically a month later) at 9:00a.m. The form

advises the property owner:

PLEASE BE ON TIME.
A FAILURE TO APPEAR MAY RESULT IN YOUR PETITION
BEING DISMISSED OR YOUR PROPERTY BEING FORFEITED.

100. Property owners contesting a forfeiture action may be required to appear as many

as a dozen times in Courtroom 478 over the course of months or even years before the case is

concluded. 101. In a review of 8,284 civil-forfeiture cases, property owners have been forced to

return to Courtroom 478 an average of five times, risking a default judgment if they failed to

appear just once. And more than 100 property owners were required to return to Courtroom 478

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ten times or more. See Isaiah Thompson, "The Cash Machine," Philadelphia City Paper, Nov. 28, 2012, available at http://citypaper.net/article.php?The-Cash-Machine-19189. IV. THE NAMED Pl,AINTIFFS GET ENSNARED IN PHILADELPHIA'S "ROBO-FORFEITURE"
MACHINE.
102. Defendants' policies and practices threaten each of the Named Plaintiffs with the loss of their property and have already violated their constitutional rights to due process of law.
A. Named Plaintiff Christos "Chris" Sourovelis 103. Around noon on March 27, 2014, Christos "Chris" Sourovelis received a phone call from his neighbor, an officer in the Philadelphia Police Department, informing him out of courtesy that police were at his home. 104. Mr. Sourovelis immediately called his wife, Markela, who was home at the time. When she answered, all Mr. Sourovelis could hear was her sounding very upset and some commotion before the phone fell silent. 105. Mr. Sourovelis promptly left work to drive the hour-long ride home, calling his wife multiple times en route with no answer. Mr. Sourovelis learned later from his wife that the police had taken the phone from his wife and refused to let her answer. 106. When Mr. Sourovelis arrived, he learned that four armed law-enforcement officers came to his home around noon to execute a search warrant, claiming that there were drugs in the house. 107. When the police arrived, Markela saw them from a window on the second floor of the house. They were outside the front door, which was unlocked. When she came downstairs, she found that the door had been opened and a gun placed next to their family dog Max's head. 108. After the police told her that they would shoot Max if she did not open the door, Markela agreed to let the officers in. But when Markela momentarily closed the front door in
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order to secure Max in an adjoining bedroom, the officers forced their way into the home. 109. The officers searched through the house and found Mr. Sourovelis's son, Y.S.,
with a small amount of drugs and drug paraphernalia. Y. S. had been observed by a police officer selling $40 worth of drugs. After being arrested and arraigned, Y.S., who had no prior record, was directed to a diversion program requiring him to attend a drug rehabilitation program.
110. Y. S. is an honors student and at the time of his arrest was preparing to attend Temple University. While working at a restaurant/bar as a cook, he fell in with the wrong crowd. He has never been in trouble with the law before.
111. A little over a month later, on May 7, 2014, Assistant District Attorney Daren Waite obtained an ex parte order to seize Mr. Sourovelis's home and seal it to prevent entry.
112. On or about the morning of May 8, 2014, Mr. Sourovelis was driving Y.S. to the drug rehabilitation center to begin treatment when he received a frantic call from his wife. Officers from the Philadelphia Police Department had come to the home, once again without any notice, to order the family to leave their home pursuant to the "seize and seal" order that ADA Waite had obtained the day before.
113. This was how Mr. Sourovelis and his family learned that they could permanently lose their entire home through civil forfeiture due to the small amount of drugs Y. S. had possessed and sold.
114. Mr. Sourovelis was instructed that to contest the forfeiture of his home and the order to seize and seal, he would have to attend a hearing set for May 14, 2014 at 9: 15 a.m. in Courtroom 478 in City Hall.
115. When Mr. Sourovelis and his wife arrived, there was no judge, no jury. They
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eventually spoke to ADA Waite who confirmed that they were not represented by counsel and then advised Mr. Sourovelis that he wouldn't need a lawyer for this proceeding.
116. ADA Waite further informed Mr. Sourovelis that in order for his house to be unsealed so his family could return home, he and his wife would have to agree to a number of conditions, including agreeing that Y.S. would not be permitted to enter his home for any reason for an indefinite period of time. Other conditions included relinquishing, in any future forfeiture action, both Mr. Sourovelis's innocent-owner defense under Pennsylvania law as well as his constitutional right to challenge the forfeiture of his home as an excessive fine.
117. Without the assistance of counsel, both Mr. Sourovelis and his wife reluctantly signed the agreement in order to be let back into their home.
118. In all, the seize-and-seal order caused the Sourovelis family to be forcibly evicted from their home for at least seven days. It took three to four more days after Mr. and Mrs. Sourovelis signed the agreement to get the front door lock fixed (after the police broke it) and to get the power, water and other utilities-which the City of Philadelphia had turned off-running agam.
119. The forfeiture case against their home was relisted for June 13, 2014. At that time, ADA Waite instructed Mr. and Mrs. Sourovelis to respond in handwriting to each allegation contained in the forfeiture petition. The case was then relisted once again for July 10, 2014.
120. On July 7, 2014, around 4:30PM, Mrs. Sourovelis received an email from ADA Waite instructing Mr. Sourovelis to answer the attached interrogatories within thirty days. The accompanying letter stated that the forfeiture action was next listed for July 10, 2014 and directed Mr. Sourovelis to complete the interrogatories and attach and mail all requested
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documents to ADA Waite. These interrogatories contained 50 questions with numerous subparts. The interrogatories contained an affirmation for Mr. Sourovelis to sign that all foregoing answers are true and correct to the best of his knowledge, information and belief, and that he "understands that the facts herein are verified subject to penalties for unsworn falsification to authorities."
121. At the July 10, 2014 hearing, ADA Waite personally handed Mr. Sourovelis a copy of the interrogatories and relisted the case until August 12, 2014.
122. Mr. Sourovelis's youngest son, Y.S., completed his drug rehabilitation program on or about June 10, 2014 and since that time has been living with his older brother.
123. Both Mr. and Mrs. Sourovelis want their youngest son to be back in their home so they can keep an eye on him and make sure that he complies with the requirements of the diversion program and keeps out of additional trouble.
124. Mr. Sourovelis and his family have suffered irreparable injuries from being evicted from their home without notice or an opportunity to be heard before a neutral arbiter.
125. Mr. Sourovelis continues to suffer hardship due to his son being barred from living in, or even entering, his home.
126. Mr. Sourovelis has suffered and continues to suffer hardship by being required to take off from work and drive 30-40 minutes fighting traffic to attend "hearings" in Courtroom 478.
127. Mr. Sourovelis has spent significant time, labor, and money in furnishing and renovating his home, including a garden in the backyard that contains custom masonry work built by Mr. Sourovelis himself.
128. Mr. Sourovelis is also threatened with irreparable injury of losing his home of
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almost seven years, where his wife, two daughters, and until recently his youngest son, live with Max the dog.
B. Named PlaintiffDoila Welch 129. On Saturday, February 1, 2014, while still in bed, Plaintiff Doila Welch was startled by police officers running upstairs to her bedroom with guns drawn. 130. Upon information and belief, the officers did not have a warrant to gain entry into the residence. 131. At the time, Ms. Welch's 12-year old daughter was showering in the second-floor bathroom and her 23-year old son was in his bedroom on the third floor. 132. Police ordered all occupants downstairs, barely allowing Ms. Welch's daughter to get dressed. Due to her physical disability, Ms. Welch required assistance in getting dressed and descending the stairs. A female officer was called to assist. 133. The police officers conducted a search of the house, kicking in Ms. Welch's son's bedroom door, breaking his gaming system, and taking $40 in cash that was on his bedside table, money Ms. Welch had given him to purchase a jacket. 134. The officers did not find any drugs or drug paraphernalia in Ms. Welch's son's room. 135. Unbeknownst to Ms. Welch, however, her husband had been selling marijuana out of her home. Ms. Welch and her husband had been alienated for some time due to martial problems. 136. At the time of the police entry, Ms. Welch's husband, Ronald Requena, Sr., was in the kitchen on the main floor. Police arrested Mr. Requena, Sr. for selling drugs. 137. Police also arrested Ms. Welch's son on conspiracy charges.
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138. Police officers informed Ms. Welch and the remaining occupants that they were not permitted to remain in the house and instructed them to gather their belongings.
139. After Ms. Welch's protests and pleading based on her and her sister's medical conditions, she was advised that they could remain in the house but that both Mr. Requena and Ms. Welch's son would not be permitted in the house.
140. On February 19,2014, Assistant District Attorney James Dellafiora filed a forfeiture petition against Ms. Welch's home.
141. On February 19, 2014, ADA Dellafiora also filed an ex parte application to seize Ms. Welch's home and seal it to prevent entry. The Court of Common Pleas entered a seize-andseal order for the property that same day.
142. On February 19, 2014, a "hearing" on the civil-forfeiture petition was set for March 3, 2014 in Courtroom 478. Due to a snowstorm, this "hearing" was postponed until March 27, 2014.
143. To attend the hearing on March 27, Ms. Welch had to cancel a doctor's appointment. With the assistance of her son, Ms. Welch made her way to Courtroom 478 using public transportation.
144. ADA Dellafiora, on the other hand, failed to show at this "hearing." 145. Ms. Welch was informed by Assistant District Attorney Clarence Dupree that the "hearing" was cancelled and she would have to return to Courtroom 478 on May 29, 2014. 146. Ms. Welch was also told that while her son could be in the home during the day to assist her, he was not permitted to stay overnight. 147. Although ADA Dupree informed Ms. Welch that she would receive a letter stating her son was permitted to remain in the home during the day, she never received this letter.
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Despite repeated attempts to contact the Philadelphia D.A.' s Office, she was unable to get anyone on the phone to respond.
148. Upon information and belief, there is no court order restraining Ms. Welch's son from her home.
149. Upon information and belief, after this "hearing" concluded, ADA Dupree went to Courtroom 504 in the Criminal Justice Center and presented a proposed order temporarily restraining the property from being "sold, assigned, optioned, given, bequeathed, or transferred in any manner" for the pendency of the litigation.
150. Judge Joan Brown signed the restraining order. 151. On May 29,2014, Ms. Welch, with the assistance of her son, again made her way on public transportation to Courtroom 478. She brought with her a copy of the probate papers showing that she was one of the rightful heirs to her parents' estate. 152. At this "hearing," ADA Dellafiora advised Ms. Welch that most likely the forfeiture action could be resolved without any complications if she would pay a fine. 153. ADA Dellafiora also advised Ms. Welch that he would send her an email containing a "questionnaire" for her to complete. 154. Upon information and belief, the "questionnaire" ADA Dellafiora was referencing is the same pattern form interrogatories received by Plaintiff Sourovelis. 155. To date, Ms. Welch has not received the promised "questionnaire." 156. At the May 29, 2014 hearing, ADA Dellafiora also informed Ms. Welch that her son would be able to stay overnight as the charges had been dismissed against him. He promised to send Ms. Welch documentation of this. 157. To date, Ms. Welch has not received any court order or letter from the
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Philadelphia D.A.'s Office documenting the initial restraining order against her son or the lifting of that order.
158. Because Ms. Welch was previously scheduled to be out of the country from midJune through August 8, her forfeiture case was relisted for August 12, 2014.
159. Ms. Welch has sustained irreparable injuries due to the threat of being evicted from her home without any notice or an opportunity to be heard.
160. Ms. Welch has sustained irreparable injuries due to her son being temporarily barred from living in her home and suffers anxiety from the uncertainty as to whether Defendants will permanently bar her son from her home.
161. Ms. Welch has also suffered hardship by being required to endure physical exertion to attend "hearings" in Courtroom 478 again and again at which she does not get an opportunity to be heard by a fair and neutral arbiter.
162. Ms. Welch is also threatened with irreparable injury of losing her home which has been in her family for 17 years.
C. Named Plaintiff Norys Hernandez 163. Plaintiff Norys Hernandez and her sister, Sonia Gonzalez, together own a rowhouse located at 3415 North Marshall Street, in which Sonia resided with her children. 164. On April17, 2014, Mrs. Hernandez's nephew was arrested outside 3415 North Marshall Street for selling and possessing a small amount of drugs. 165. On or about June 2, 2014, Assistant District Attorney Steven Agami filed an ex parte application to seize and seal3415 North Marshall Street. 166. On June 2, 2014, the Court of Common Pleas entered an order authorizing Defendants to seize and seal the property.
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167. At the same time, ADA Agami filed an ex parte application for a restraining order restraining the sale, encumbrance, assignment, gifting, or transfer of the property.
168. On or about June 2, 2014, Norys was informed that Defendants were pursuing civil forfeiture against the property and that, pursuant to the seize-and-seal order, no one could enter the property.
169. At the time, Ms. Gonalzez was in Puerto Rico. Accordingly, all of her clothing and personal effects remain in 3415 North Marshall Street, which she is still not allowed to enter.
170. A "hearing" on the order to seize and seal the property, the restraining order, and the petition for forfeiture was set for June 12, 2014.
171. At the "hearing" ADA Agami instructed Mrs. Hernandez to return to Courtroom 478 at the next listing with a copy of the deed and documentation of why Ms. Gonzalez needed to be let back into the house.
172. The forfeiture case was relisted for August 12, 2014 for a "hearing" in Courtroom 478.
173. Mrs. Hernandez suffers from irreparable injuries due to having her property seized and sealed without any notice or opportunity to be heard.
174. Mrs. Hernandez is also threatened with the irreparable injury of losing her property.
D. Plaintiff Members ofthe Class 175. These factual allegations pertaining to Plaintiffs Sourovelis, Welch, and Hernandez are similar to the experiences of other property owners in Philadelphia threatened with civil forfeiture. l76. Defendants' policies and practices have caused members of the class extreme
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hardship such as being left homeless or being left without needed medication after either it or the property housing the medication has been seized.
177. Defendants' policies and practices have resulted in the entry of default judgments, entered without notice or due process of law, which cause the permanent loss of property.
178. Defendants' policies and practices have forced property owners to evict friends and family members from living with them in order to have their properties unsealed and returned to them.
179. Defendants' policies and practices have forced property owners to agree to waive statutory and constitutional defenses to potential forfeiture proceedings in the future in order to have their properties unsealed and returned to them.
180. Defendants' policies and practices have forced property owners to repeatedly return to Courtroom 478 for "hearings" run by Defendants or else risk losing their property by a default judgment.
181. Defendants' policies and practices have forced property owners to appear in Courtroom 478 for "hearings" that are run by Philadelphia prosecutors who have a direct financial interest in the outcome of the proceedings.
CLASS ACTION ALLEGATIONS 182. Named Plaintiffs Christos Sourovelis, Doila Welch, and Norys Hernandez seek to maintain this action on behalf of themselves and all others similarly situated under Rule 23(b)(2) of the Federal Rules of Civil Procedure. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 183. The Named Plaintiffs propose the following class definition: "all persons who own property that is or will be the subject of a civil-forfeiture action brought by the Philadelphia
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D.A.'s Office." 184. This action meets all the Rule 23(a) prerequisites of maintaining a class action. 185. Numerosity under Rule 23(a)(l): The putative class is so numerous that joinder
of all members is impracticable. a. In 2011 alone, the Philadelphia D.A.'s Office filed 6,560 civil-forfeiture cases. b. Between June 1, 2014, and July 31, 2014, the Philadelphia D.A.'s Office listed 2,220 forfeiture cases for "hearings" in Courtroom 478 of City Hall.
186. Commonality under Rule 23(a)(2): This action presents questions of law and fact common to the putative class, resolution of which will not require individualized determinations of the circumstances of any particular plaintiff. Common questions of fact include, but are not limited to:
a. Do Defendants have a policy and practice of seizing real property without providing property owners notice or an opportunity to be heard? b. Do Defendants have a policy and practice of compelling property owners to sign agreements in which the owners waive statutory and constitutional defenses to unknown future forfeiture proceedings in order to have Defendants unseal their homes and other real property? c. Do Defendants have a policy and practice of failing to provide prompt post-seizure hearings to individuals whose property has been seized? d. Do Defendants have a policy and practice of repeatedly "relisting" forfeiture actions and requiring property owners to make monthly court appearances which increase the risk of a default judgment?
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e. Do the Law-Enforcement Defendants have a policy and practice of

retaining all forfeited property and its proceeds?

f.

Do Defendants have a policy and practice of having assistant district

attorneys control forfeiture proceedings in Courtroom 478?

Common questions of law include, but are not limited to, whether the above-described policies

and practices violate the Due Process Clause of the Fourteenth Amendment.

187. Typicality under Rule 23(a)(3): The Named Plaintiffs' claims are typical of the

claims of the putative class.

a. The Named Plaintiffs' claims as well as those of the putative class

members arise out of the same course of conduct by Defendants, are based on the

same legal theories, and involve the same harms.

b. Additionally, the Named Plaintiffs are seeking the same relief for

themselves and members of the putative class.

188. Adequacy of Representation under Rule 23(a)(4): The interests of the putative

class are fairly and adequately protected by the Named Plaintiffs and their attorneys.

a. The Named Plaintiffs adequately represent the putative class because their

interests are aligned and there are no conflicts of interest between the Named

Plaintiffs and members of the putative class.

b. The Named Plaintiffs and putative class members are ably represented pro

bono by the Institute for Justice and local counsel David Rudovsky. Founded in

1991, the Institute for Justice is a nonprofit, public-interest law firm that litigates

constitutional issues nationwide. The Institute for Justice has particular expertise

in protecting property rights, including challenging civil-forfeiture programs on

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constitutional grounds. In bringing this action, the Institute for Justice has done extensive work to identify and investigate Plaintiffs' claims. David Rudovsky, a founding partner of Kairys, Rudovsky, Messing & Feinberg, LLP, has practiced for over forty years and has considerable experience in bringing class actions. 189. This action also meets the requirements of, and is brought in accordance with Rules 23(b)(2) of the Federal Rules of Civil Procedure. Defendants have acted, or refused to act, on grounds generally applicable to the class. Final injunctive and declaratory relief is appropriate with respect to all of the members of the class.
CONSTITUTIONAL VIOLATIONS FIRST CLAIM FOR RELIEF:
FAILURE TO PROVIDE NOTICE OR A HEARING BEFORE SEIZING REAL PROPERTY VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
190. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in 'f<J[ 1 through 189 above.
191. Defendants and their agents have seized and sealed the homes of Named Plaintiff Christos Sourovelis and members of the putative class without providing notice or a meaningful opportunity to be heard.
192. Defendants and their agents have seized and sealed real property owned by Named Plaintiff Norys Hernandez and members of the putative class without providing notice or a meaningful opportunity to be heard.
193. Defendants and their agents have applied for and received an order authorizing them to seize and seal real property owned by Named Plaintiff Doila Welch and members of the putative class without providing notice or a meaningful opportunity to be heard.
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194. Defendants have a policy and practice of relying on 42 Pa. Cons. Stat. § 6802(f) and (g) to seize real property without providing owners or residents of the property notice or a meaningful opportunity to be heard.
195. Defendants have a policy and practice of obtaining ex parte orders to seize and seal real property without evidence that providing notice will jeopardize the availability of that particular property for forfeiture or any evidence of exigent circumstances that would justify sealing the real property.
196. Defendants' policy and practice of seizing real property without providing notice or a meaningful opportunity to be heard violates the Due Process Clause of the Fourteenth Amendment.
197. As a direct and proximate result of Defendants' actions, Plaintiffs Sourovelis and Hernandez and the members of the putative class have suffered irreparable injury to their constitutional rights, including but not limited to being forcibly evicted from their homes and having their real property seized.
198. As a direct and proximate result of Defendants' policies and practices of seizing real property including homes without providing owners or residents notice or an opportunity to be heard, members of the putative class will suffer irreparable injury to their constitutional rights, including but not limited to being forcibly evicted from their homes or having their real property seized.
199. Declaratory and injunctive relief is necessary to remedy Defendants' unconstitutional conduct of seizing real property without notice or a hearing. Without appropriate declaratory and injunctive relief, Defendants' unconstitutional policies and practices will continue.
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SECOND CLAIM FOR RELIEF: REQUIRING REAL PROPERTY OWNERS TO WAIVE STATUTORY AND CONSTITUTIONAL DEFENSES IN FUTURE CIVIL-FORFEITURE PROCEEDINGS VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT 200. Plaintiffs re-allege and incorporate by reference each and every allegation set
forth in 1.1 I through I99 above.
20 I. After seizing and sealing the homes of Plaintiff Christos Sourovelis and members of the putative class on the basis of ex parte applications that deprive them of notice or an opportunity to be heard, Defendants and their agents require property owners to agree to certain conditions in order to re-enter their properties.
202. Defendants have a policy and practice of requiring property owners to agree that should Defendants attempt to forfeit the property due to any future controlled-substance violations with a connection to the property, the property owner waives his rights to assert an innocent-owner defense under 42 Pa. Const. § 6802(j) or argue that forfeiture of the property would constitute an excessive fine.
203. Defendants' policy and practice of requiring property owners to prospectively waive their statutory and constitutional rights in order to have their homes and other real property unsealed violates the Due Process Clause of the Fourteenth Amendment because it seeks to impair the property owners' access to the courts to assert their constitutional rights.
204. Defendants' policy and practice of requiring property owners to prospectively waive their statutory and constitutional rights in order to have their homes and other real property unsealed violates the Due Process Clause of the Fourteenth Amendment because it unacceptably raises the risk of an erroneous deprivation, in that it would allow Defendants to forfeit the property no matter how innocent the property owner is or how disproportionate the
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forfeiture would be in light of the gravity of the offense. 205. Defendants' policy and practice of requiring property owners to prospectively
waive their statutory and constitutional rights in order to have their homes and other real property unsealed violates the Due Process Clause of the Fourteenth Amendment because such a waiver does not further any legitimate interest of Defendants.
206. As a direct and proximate result of Defendants' actions, policies, and practices, Plaintiff Sourovelis and members of the putative class have suffered injury to their constitutional rights, including their right to contest future forfeiture proceedings Defendants pursue against their real properties.
207. Declaratory and injunctive relief is necessary to remedy Defendants' unconstitutional practice of forcing property owners to waive their statutory and constitutional rights in order to re-enter their homes. Without appropriate declaratory and injunctive relief, Defendants' unconstitutional policies and practices will continue.
THIRD CLAIM FOR RELIEF: FAILURE TO PROVIDE A PROMPT, POST-DEPRIVATION HEARING VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT 208. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in 1[1[1 through 207 above. 209. After seizing or restraining property for civil-forfeiture determinations, Defendants and their agents failed to provide the Named Plaintiffs and members of the putative class with a prompt hearing at which they would have been able to challenge, before a neutral arbiter, the basis for the seizure, restraint, and/or indefinite retention of their property pending the civil-forfeiture determination. 210. Defendants have a policy and practice of seizing, restraining, or indefinitely
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retaining property for civil forfeiture without providing property owners a prompt hearing at which they can challenge, before a neutral arbiter, the basis for the seizure, restraint, and/or indefinite retention of their property pending the civil-forfeiture determination.
211. Defendants' policy and practice of failing to provide prompt post-deprivation hearings violates the Due Process Clause of the Fourteenth Amendment because it fails to give property owners a chance to contest the basis for the deprivation at a meaningful time and in a meaningful manner.
212. As a direct and proximate result of Defendants' actions, policies, and practices, the Named Plaintiffs and members of the putative class have suffered irreparable injury to their constitutional rights, including but not limited to being deprived of their property without a meaningful opportunity to be heard.
213. Declaratory and injunctive relief is necessary to remedy Defendants' unconstitutional conduct of seizing, restraining, and/or retaining property without a hearing. Without appropriate declaratory and injunctive relief, Defendants' unconstitutional policies and practices will continue.
FOURTH CLAIM FOR RELIEF: REPEATEDLY "RELISTING" FORFEITURE PROCEEDINGS VIOLATES THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT 214. Plaintiffs re-allege and incorporate by reference each and every allegation set
forth in 11 I through 213 above.
215. Defendants have relisted forfeiture actions against property owned by the Named Plaintiffs multiple times, requiring the Named Plaintiffs to return to Courtroom 478 for each listing in order to preserve their interest in the property, or else risk losing their property forever through default judgment.
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216. Defendants have a policy and practice of relisting forfeiture actions, typically on a monthly basis, forcing members of the putative class to return to Courtroom 478 for each listing in order to preserve their interest in the property, or else lose their property forever through a default judgment.
217. Upon information and belief, Defendants have a policy and practice of relisting forfeiture actions repeatedly until any underlying criminal case against anyone-including people other than the property's owners-is resolved rather than staying the forfeiture proceeding for the pendency of the criminal action.
218. Defendants' policy and practice of relisting forfeiture actions violates the Due Process Clause of the Fourteenth Amendment because it imposes a high risk of erroneous deprivation of property. The private interests affected by the "relisting" procedure outweigh Defendants' interests in maintaining the policy.
219. As a direct and proximate result of Defendants' actions, policies, and practices, the Named Plaintiffs and members of the putative class have suffered irreparable injury by the violation of their constitutional rights.
220. Declaratory and injunctive relief is necessary to remedy Defendants' unconstitutional conduct of repeatedly requiring Plaintiffs to appear for proceedings or else risk losing their property forever. Without appropriate declaratory and injunctive relief, Defendants' unconstitutional policies and practices will continue.
FIFTH CLAIM FOR RELIEF: THE RETENTION OF FORFEITED PROPERTY AND ITS PROCEEDS BY
LAW-ENFORCMENT DEFENDANTS VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT 221. Plaintiffs re-allege and incorporate by reference each and every allegation set
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forth in 'I'll through 220 above. 222. The Law-Enforcement Defendants' policy and practice of retaining forfeited
property and its proceeds injects a personal and institutional interest, financial and otherwise, into enforcing civil forfeiture that brings irrelevant and impermissible factors into the investigative and prosecutorial decision-making process and thereby creates actual bias, the potential for bias, and/or the appearance of bias.
223. The Philadelphia D.A.'s Office-the very agency charged with prosecuting civilforfeiture actions-has a direct financial incentive in the outcome of forfeiture proceedings because of the prospect of both economic profit through salaries as well as institutional gain through more and better law-enforcement equipment.
224. D.A. Seth Williams-the very official charged with prosecuting civil-forfeiture actions-has a direct financial incentive in the outcome of forfeiture proceedings because of the prospect of both economic profit through salaries as well as institutional gain through more and better law-enforcement equipment.
225. The Philadelphia D.A.'s Office has shared its forfeiture revenue with the Philadelphia Police Department. Upon information and belief, this practice continues.
226. Police Commissioner Ramsey-the very official charged with enforcing civilforfeiture laws on behalf of the Philadelphia Police Department-has a direct financial incentive in seizing property for civil forfeiture due to, upon information and belief, the prospect of both economic profit through salaries as well as institutional gain through more and better lawenforcement equipment.
227. The direct financial stake that these Law-Enforcement Defendants have in the seizure and retention of property for forfeiture poses a conflict of interest, the potential for bias,
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and the appearance of bias that violate Plaintiffs' rights to the fair and impartial administration of justice guaranteed by the Due Process Clause of the Fourteenth Amendment.
228. As a direct and proximate cause of the Law-Enforcement Defendants' actions, policies, and practices, Plaintiffs have suffered irreparable injury to their constitutional rights, including but not limited to the unjust taking of their property.
229. Declaratory and injunctive relief is necessary to remedy the Law-Enforcement Defendants' conflict of interest. Without appropriate declaratory and injunctive relief, the LawEnforcement Defendants' unconstitutional policies and practices will continue.
SIXTH CLAIM FOR RELIEF: DEFENDANTS' POLICY AND PRACTICE OF PROSECUTORS CONTROLLING COURTROOM 478 "HEARINGS" VIOLATES THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT 230. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in ')[<)[ 1 through 229 above. 231. Defendants have a policy and practice of having prosecutors run the forfeiture proceedings in Courtroom 478, including but not limited to calling the cases, determining whether property owners are in default, and assessing whether any evidence produced by property owners is sufficient. 232. These prosecutors, who are assistant district attorneys in the Public Nuisance Task Force of the Philadelphia D.A.' s Office, have a direct and institutional financial interest in the outcome of the forfeiture proceedings. 233. Defendants' policy and practice of having prosecutors, with a direct and institutional financial interest in the outcome of the forfeiture proceedings, run those very same forfeiture proceedings, violates the Due Process Clause of the Fourteenth Amendment.
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234. As a direct and proximate result of Defendants' actions, policies, and practices, the Named Plaintiffs and members of the putative class have suffered irreparable injury to their constitutional rights.
235. Declaratory and injunctive relief is necessary to correct Defendants' unconstitutional conduct of having those with a financial interest in the outcome of the proceedings run those proceedings. Without appropriate declaratory and injunctive relief, Defendants' unconstitutional policies and practices will continue for the foreseeable future.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request, on behalf of themselves and all others similarly situated, this Court: 1. For entry of judgment declaring as unconstitutional under the Due Process Clause of the Fourteenth Amendment:
a. Defendants' policy and practice of seizing real property without providing property owners notice or an opportunity to be heard; b. Defendants' policy and practice of requiring real property owners whose property has been seized and sealed to waive their future statutory and constitutional defenses as a condition of having their properties unsealed; c. Defendants' policy and practice of failing to provide prompt, postdeprivation hearings to individuals whose property has been seized, restrained and/or indefinitely retained; d. Defendants' policy and practice of "relisting" forfeiture actions and requiring property owners to make monthly court appearances, or else risk losing their property forever through default judgments;
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e. Law-Enforcement Defendants' policy and practice of retaining all forfeited property and its proceeds; and f. Defendants' policy and practice of having prosecutors, with a direct financial interest in the outcome of civil-forfeiture proceedings, control the civilforfeiture "hearings" in Courtroom 478; 2. For an entry of judgment declaring that the City of Philadelphia and the Philadelphia District Attorney's Office is liable for the above-described unconstitutional policies and practices. 3. For entry of preliminary and permanent injunctions against Defendants prohibiting them from engaging in the above-described policies and practices. 4. For a court order declaring the following statutory provisions unconstitutional: a. 42 Pa. Const. Stat. § 6802(f) and (g) are unconstitutional as applied to real
property to the extent these provisions authorize ex parte seizure of real property, without notice or a pre-deprivation opportunity to contest the seizure; b. 42 Pa. Const. Stat.§ 680l(b) is unconstitutional as applied to the extent it allows the seizure of real property without fair judicial process; c. 42 Pa. Const. Stat. §§ 680 I and 6802 are unconstitutional as applied to the extent these provisions fail to provide for a prompt post-deprivation hearing for any property; d. 42 Pa. Const. Stat. § 6801 (e)-(h) are unconstitutional as applied to the extent they create a conflict of interest that denies individuals the fair and impartial administration of justice.
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5. For a court order requiring Defendants to: a. dismiss, with prejudice, all civil-forfeiture proceedings against property owned by the Named Plaintiffs and class members; b. return all property seized from the Named Plaintiffs and class members; c. remove all restraints imposed against the Named Plaintiffs' and class members' real property as a consequence of the forfeiture petition, including but not limited to any lis pendens notices;
6. For an award of $1.00 in nominal damages for each of the six claims for relief. Plaintiffs seek this award for the class as a whole and do not request nominal damages for each class member;
7. For an award of attorney's fees, costs, and expenses in this action pursuant to 42 U.S.C. § 1988(b); and
8. For further legal and equitable relief as this Court may deem just and proper.

Dated:

August 11, 2014

Respectfully submitted,

INSTITUTE FOR JUSTICE
William H. Mellor* Scott G. Bullock* Darpana M. Sheth* Robert P. Frommer* 901 N. Glebe Road, Suite 900 Arlington, VA 22203 Tel: (703) 682- 9320 Fax: (703) 682- 932I E-mail: wmellor@ij.org; sbullock@ij.org; dsheth@ij.org; rfrommer@ij.org
*Pro Hac Vice applications to be submitted.

By: J:tlldr61fiiJ
KAIRYS, RUDOVSKY, MESSING & FEINBERG LLP David Rudovsky I.D. Number I5I68 The Cast Iron Building 7 I8 Arch Street, Suite 50 I South Philadelphia, PA 19106 Tel: (215) 925-4400 Email: drudovsky@ krlawphila.com

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 Case 2:14-cv-04687-ER Document 40 Filed 11/17/14 Page 1 of 59

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHRISTOS SOUROVELIS, DOILA WELCH, NORYS HERNANDEZ, and NASSIR GEIGER, on behalf of themselves and all others similarly situated,

Plaintiffs,
vs.
CITY OF PHILADELPHIA;
MICHAEL A. NUTTER, in his official capacity as Mayor of Philadelphia;
PHILADELPHIA DISTRICT ATTORNEY'S OFFICE;

FIRST AMENDED COMPLAINT-CLASS ACTION
Civil Action No. 2:14-cv-04687
Assigned to the Honorable Judge Robreno
Special Management Track

R. SETH WILLIAMS, in his official capacity as District Attorney of Philadelphia; and

CHARLES H. RAMSEY, in his official capacity as Commissioner of the Philadelphia Police Department;

Defendants.

FIRST AMENDED CLASS-ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:14-cv-04687-ER Document 40 Filed 11/17/14 Page 2 of 59
INTRODUCTION 1. This civil-rights lawsuit challenges six specific policies and practices Defendants use when filing, prosecuting, and ultimately profiting from civil-forfeiture actions. Plaintiffs Christos Sourovelis, Doila Welch, Norys Hernandez, and Nassir Geiger ("Named Plaintiffs") are Philadelphia property owners who seek primarily injunctive and declaratory relief against these policies and practices, which violate their due-process rights under the Fourteenth Amendment. Named Plaintiffs bring this lawsuit on behalf of themselves and all others similarly situated under Rule 23(b)(2) ofthe Federal Rules of Civil Procedure. 2. Under an increasingly controversial legal device known as civil forfeiture, Philadelphia law enforcement has been summarily confiscating property from its residents under the fiction that the property itself is "guilty" of a crime. Even if the owner of the property has no involvement or even knowledge ofthe alleged crime, the Philadelphia District Attorney's Office sues the property in civil actions (with unusual names like Commonwealth v. One 1993 Pontiac Trans Am and Commonwealth v. 605 University Drive, State College, Pa.) and requires property owners to prove their innocence. Should the Philadelphia District Attorney's Office ("Philadelphia D.A. 's Office") win the lawsuit against the property, it retains the property or proceeds from its sale for the office's own use, giving it a direct financial interest in the outcome of the proceedings. 3. While Pennsylvania law authorizes civil forfeiture, the Philadelphia D.A. 's Office has turned this tool into a veritable machine, devouring real and personal property from thousands of residents, many of whom are innocent, and converting that property into a $5.8 million average annual stream of revenue. Using a rigged system of copied "form" legal documents and endless proceedings in a courtroom run by the prosecutors themselves,
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Philadelphia's "robo-forfeiture" program stripped thousands of City residents of over 1,000 residences, 3,200 vehicles, and $44 million in cash over an eleven-year period, ultimately raking in more than $64 million in revenue. This is almost 20 percent of the general budget of the Philadelphia D.A.'s Office-funds that are wholly outside the oversight ofthe City Council.
4. Plaintiffs bring this class action to enjoin and declare unconstitutional the following six policies and practices of Defendants, which deprive people not only of their property, but of their rights to due process oflaw:
(i) Defendants' policy and practice of applying for and executing ex parte seizures of homes and other real properties without providing any evidence of exigent circumstances or necessity to justify proceeding without affording affected owners notice or an opportunity to be heard;
(ii) Defendants' policy and practice of requiring real property owners to waive their statutory and constitutional rights in order to be let back into their property or have the forfeiture petition withdrawn;
(iii) Defendants' policy and practice of failing to provide property owners with a prompt, post-deprivation hearing before a neutral arbiter where those owners may contest the basis for the seizure, restraint, or indefinite retention of their property pending an ultimate hearing on the merits;
(iv) Defendants' policy and practice of repeatedly "relisting" civil-forfeiture proceedings, which forces property owners to appear in person for these proceedings over and over again or else permanently lose their property through a default judgment;
(v) The policy and practice of retaining forfeited property and its proceeds for use by the Philadelphia District Attorney's Office and the Philadelphia Police Department; and
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(vi) Defendants' policy and practice of having prosecutors and employees of

the Philadelphia District Attorney's Office control "hearings" in Courtroom 478.

JURISDICTION

5. Plaintiffs bring this class-action, civil-rights lawsuit pursuant to 42 U.S.C. § 1983

for violations of their rights under the Due Process Clause of the Fourteenth Amendment; 42

U.S.C. § 1988; and the Declaratory Judgments Act, 28 U.S.C. §§ 2201, 2202. Plaintiffs seek

injunctive and declaratory relief against Defendants' policies and practices in investigating,

filing, prosecuting, and ultimately profiting from civil-forfeiture actions.

6. Accordingly, this Court has jurisdiction over this action under 28 U.S.C. §§ 1331

(federal-question jurisdiction) and 1343 (civil-rights jurisdiction).

VENUE

7. Venue is proper in the United States District Court for the Eastern District of

Pennsylvania under 28 U.S.C. § 1391(b)(2). A substantial part ofthe events or omissions giving

rise to Plaintiffs' claims occurred in Philadelphia, which is located in the Eastern District of

Pennsylvania. See 28 U.S.C. § 118.

8. Venue is also proper under 28 U.S.C. § 139l(b)(l) because all Defendants are

domiciled in the Commonwealth of Pennsylvania, and at least one Defendant is domiciled in

Philadelphia.

THE PARTIES

I.

THE PLAINTIFFS

9. Plaintiff Christos Sourovelis is an adult lawful permanent resident of the United

States. Mr. Sourovelis owns and operates his own business in home construction, a trade his

family practiced in Athens, Greece. He has lived in Philadelphia for over 30 years. In December

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2006, Mr. Sourovelis purchased a single-family home in the Somerton section of Philadelphia and has been living there with his family since approximately September 2007. Mr. Sourovelis holds title to this property. He has never been charged with any crime.
10. Yet, under Defendants' civil-forfeiture policies and practices, Mr. Sourovelis and his family were evicted from their home for more than a week without any notice or opportunity to be heard. Moreover, in order to be let back into his home, Mr. Sourovelis was forced to agree to a number of unconstitutional conditions, including barring his son from the property. Mr. Sourovelis also stands to permanently lose his family's home through a civil-forfeiture proceeding initiated by District Attorney Williams.
11. Plaintiff Doila Welch is an adult citizen of the United States. Born in Belize, Ms. Welch became a U.S. citizen over 25 years ago. In 1995, her parents bought a three-story, sixbedroom, multi-family row home in South Philadelphia. When they passed away, Ms. Welch along with her two sisters inherited the property, which serves as a haven to her, all of her siblings, and their children. Ms. Welch is the administrator of the estate. Currently, Ms. Welch resides in this home with her children, brother, and sister. Ms. Welch suffers from lupus and severe rheumatoid arthritis, which make it difficult for her to be mobile. Ms. Welch's sister, who lives with her, suffers from a cognitive disability. Neither Ms. Welch nor anyone else with an ownership interest in the property has been charged with any crime.
12. Yet, under Defendants' civil-forfeiture policies and practices, Ms. Welch was threatened with being evicted from her home, without any notice or opportunity to be heard. Additionally, Ms. Welch currently faces eviction if she does not agree to prohibit her son from residing in the home and prohibit her husband from entering the home at all. Ms. Welch also stands to permanently lose her family home through a civil-forfeiture proceeding initiated by
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District Attorney Williams. 13. PlaintiffNorys Hernandez was born in Puerto Rico and is an adult citizen of the
United States. After working for years in the financial sector at Wells Fargo, Mrs. Hernandez recently finished school to become a medical-office assistant. Mrs. Hernandez and her family have lived in Philadelphia for over 25 years and together with her sister, Sonia Gonzalez, she owns a two-story row house in North Philadelphia. Mrs. Hernandez and her family purchased this property to provide her sister and her sister's children with a home. Although police arrested Mrs. Hernandez's nephew for a drug crime, neither Mrs. Hernandez nor her sister were charged with any crime.
14. Yet, under Defendants' civil-forfeiture policies and practices, Mrs. Hernandez and Ms. Gonzalez were barred from their property for more than four months without any notice or opportunity to be heard. Additionally, due to Defendants' policies and practices, Mrs. Hernandez and Ms. Gonzalez must abide by a number of conditions. Violating any of those conditions would again bar them from their property without notice or a hearing. Mrs. Hernandez and Ms. Gonzalez stand to permanently lose their property through a civil-forfeiture proceeding initiated by District Attorney Williams.
15. PlaintiffNassir Geiger is an adult natural citizen of the United States. Mr. Geiger has lived in Philadelphia his entire life. He is a full-time sanitation worker for the City of Philadelphia. Under Defendants' civil-forfeiture policies and practices, Mr. Geiger's car, a 2000 Buick LeSabre, and $580.00 in cash were seized on January 17, 2014. District Attorney Williams initiated civil-forfeiture proceedings against both Mr. Geiger's money and his car. Mr. Geiger has been deprived of both his money and his car since January 17, 2014. According to court records, Mr. Geiger's cash was ordered forfeited as a result of a default judgment. Mr.
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Case 2:14-cv-04687-ER Document 40 Filed 11/17/14 Page 7 of 59

Geiger stands to permanently lose his car through civil forfeiture. 16. Plaintiffs Sourovelis, Welch, Hernandez, and Geiger represent a putative class of
all individuals who own property that currently is or will be the subject of a civil-forfeiture

petition brought by the Philadelphia D.A. 's Office.

II.

THE DEFENDANTS

17. Defendant City of Philadelphia is a municipality of the Commonwealth of

Pennsylvania. The City of Philadelphia funds both the Philadelphia District Attorney's Office

and the Philadelphia Police Department. The City of Philadelphia is Pennsylvania's only

consolidated city-county and covers over 140 square miles with over 1.5 million residents.

18. Defendant Michael A. Nutter is the mayor of Philadelphia. As Mayor, he is

responsible for supervising Police Commissioner Ramsey. Mayor Nutter is sued in his official

capacity. 19. Defendant Philadelphia District Attorney's Office ("Philadelphia D.A.'s Office")
is the largest prosecutor's office in Pennsylvania, employing 600 lawyers, detectives, and support staff. According to the website of the Philadelphia D.A. 's Office, the Public Nuisance Task Force-a specialized unit within the Philadelphia D.A.'s Special Operations Division"handles all forfeiture-related litigation, the maintenance of seized assets and the investigation of potentially forfeitable assets." The Chief of the Public Nuisance Task Force is Assistant District Attorney Beth Grossman. The Philadelphia D.A.'s Office receives forfeited property or its proceeds. Under state law, the forfeited property and its proceeds must be used to enforce

provisions of the Controlled Substance, Drug, Device, and Cosmetic Act. 20. Defendant R. Seth Williams is the District Attorney of Philadelphia, the chief law
enforcement officer for the City and County of Philadelphia. Under the Commonwealth of

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Case 2:14-cv-04687-ER Document 40 Filed 11/17/14 Page 8 of 59
Pennsylvania's Constitution and statutes, D.A. Williams is an independent officer, directly elected by Philadelphia residents. D.A. Williams is responsible for overseeing all aspects of the Philadelphia D.A. 's Office, including the Public Nuisance Task Force. Pennsylvania law authorizes District Attorney Williams to take custody of forfeited property and either sell it or retain it for official use. Upon information and belief, D.A. Williams has signed an agreement to share forfeiture proceeds with the Philadelphia Police Department. D.A. Williams is sued in his official capacity.
21. Defendant Charles H. Ramsey is the Commissioner of the Philadelphia Police Department, which is the City's primary law-enforcement agency. As head ofthe nation's fourth largest police department, Commissioner Ramsey is responsible for overseeing the 6,600 sworn members and 800 civilian personnel serving the 21 police districts in Philadelphia. Officers of the Philadelphia Police Department enforce civil-forfeiture laws, in part, by drafting arrest reports for predicate offenses, drafting receipts for property that has been seized for civil forfeiture, and enforcing orders to seize and seal real property for forfeiture. The Philadelphia Police Department has received forfeited property or its proceeds for the purpose of enforcing provisions of the Controlled Substance, Drug, Device, and Cosmetic Act. Upon information and belief, Commissioner Ramsey has signed an agreement on behalf of the Philadelphia Police Department to share in forfeiture proceeds with the Philadelphia D.A. 's Office. Police Commissioner Ramsey is sued in his official capacity.
22. The Philadelphia D.A.'s Office, D.A. Williams and Police Commissioner Ramsey are collectively referred to as the Law-Enforcement Defendants.
23. At all relevant times, all Defendants were acting under color of state law. 24.
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Case 2:14-cv-04687-ER Document 40 Filed 11/17/14 Page 9 of 59

FACTUAL ALLEGATIONS

I.

PENNSYLVANIA'S CONTROLLED SUBSTANCES FORFEITURE ACT

25. Civil forfeiture is a legal mechanism by which law enforcement can permanently

deprive individuals of real and personal property that is proven by a preponderance of the

evidence to be connected to specified crimes. 26. Civil forfeiture is distinct from criminal forfeiture (or what is sometimes referred

to in Pennsylvania as common-law forfeiture). Criminal forfeiture is an in personam proceeding brought against the guilty party. By contrast, civil forfeiture is an in rem proceeding against the property based on the legal fiction that the property itself is guilty. A civil-forfeiture action in Pennsylvania has the Commonwealth as the plaintiff and the property as the defendant.
27. Additionally, the allocations of burdens of proof differ between civil and criminal

forfeiture. While criminal forfeiture requires a conviction after proof beyond a reasonable doubt, under civil forfeiture, the government is only required to prove the property's connection to a

crime by a preponderance of the evidence.

28. Although Pennsylvania courts have recognized that civil-forfeiture proceedings are quasi-criminal in nature because they involve constitutional rights normally only implicated in criminal proceedings, property owners defending against civil-forfeiture proceedings are not

guaranteed counsel. 29. In Pennsylvania, one of the most common statutory bases for forfeiture is the
Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. §§ 6801 and 6802. Indeed the majority of civil-forfeiture petitions brought by the Philadelphia D.A.'s Office are brought under the

Controlled Substances Forfeiture Act. 30. Enacted in 1988, the Controlled Substances Forfeiture Act authorizes forfeiture of

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real and personal property connected to a violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa. Con. Stat. §§ 780-101 to 780-144, (a "controlled-substance violation").
31. The Controlled Substances Forfeiture Act enumerates the kind of property subject to forfeiture. 42 Pa. Cons. Stat. § 6801(a). The Act specifically subjects the following property to forfeiture:
• all vehicles "which are used or are intended for use to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment" of drugs, drug paraphernalia, or materials used to manufacture drugs;
• "money, negotiable instruments, securities or other things of value" that are: 1. "furnished or intended to be furnished by any person in exchange for" drugs 2. traceable as proceeds of such an exchange; or 3. used or intended to be used to facilitate any controlled-substances violation; and
• "[r]eal property used or intended to be used to facilitate" a controlled-substances violation.
!d. § 6801(a)(4), (6). Additionally, money "found in close proximity" to illegal drugs is "rebuttably presumed to be proceeds derived from the selling of' illegal drugs. !d. § 6801(a)(6)(ii).
32. The Act authorizes law enforcement to seize the above-listed types of property without process if there is probable cause to believe that the property has been used or is intended to be used for a controlled-substances violation. !d. § 6801(b).
33. The Controlled Substances Forfeiture Act outlines the procedures governing civil forfeiture. See 42 Pa. Cons. Stat. § 6802. First, it enumerates the required contents of a petition for civil forfeiture and where it should be filed. !d. § 6802(a). Second, it establishes the requirements for providing sufficient notice of the civil-forfeiture petition to the property owner. !d. § 6802(b)-(e). Third, the Act implements a burden-shifting framework that puts the onus of
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Case 2:14-cv-04687-ER Document 40 Filed 11/17/14 Page 11 of 59
proving innocence on the property owner; if the Commonwealth produces evidence that the property is subject to forfeiture, its owner must prove his or her lack of knowledge or consent of the conduct giving rise to the forfeiture. !d. § 6802(j). By judicial interpretation, the Act requires an evidentiary hearing in open court before property can be taken from an individual and forfeited to the Commonwealth. Commonwealth v. 605 University Drive, State College, Pa., 61 A.3d 1048, 1054 (Pa. Commonw. Ct. 2012).
34. The Controlled Substances Forfeiture Act also provides an ex parte procedure to obtain "a restraining order or injunction, require the execution of a satisfactory performance bond or take any other action to preserve the availability of [the] property ... for forfeiture." 42 Pa. Con. Stat. § 6802(£). Under § 6802(g), an ex parte temporary restraining order may be entered "if the Commonwealth demonstrates that there is probable cause to believe that the property with respect to which the order is sought would be subject to forfeiture [] and that provision of notice will jeopardize the availability of the property for forfeiture."
35. Finally, the Controlled Substances Forfeiture Act governs the use and distribution of forfeited property and its proceeds. Specifically, if the law-enforcement authority seizing the property has county-wide jurisdiction (rather than statewide jurisdiction), the Act requires forfeited property to be transferred to the custody of the district attorney for that county. 42 Pa. Cons. Stat. § 6801(e).
36. The Act also authorizes district attorneys to either sell forfeited property or retain it for official use. !d. If sold, proceeds from the sale of forfeited property must "be used to pay all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising and court costs." 42 Pa. Cons. Stat. § 6801(e).
37. The balance of the forfeiture proceeds goes to the district attorney's office, or in
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cases in which both municipal and state law-enforcement entities were substantially involved,

the proceeds are distributed equally between the district attorney and the Attorney General. 42

Pa. Cons. Stat. § 6801(f)-(g).

38. The Act further provides that the "entity having budgetary control shall not

anticipate future forfeitures or proceeds therefrom in adoption and approval of the budget for the

district attorney." 42 Pa. Cons. Stat. § 6801(f). Consequently, these forfeiture funds are a

"bonus" to law-enforcement agencies and wholly outside oversight by the funding county.

39. The Act requires district attorneys to use forfeited property or derived proceeds to

enforce the provisions of the Controlled Substance, Drug, Device and Cosmetic Act. !d.

§ 6801(h). The Act also authorizes district attorneys to designate forfeiture proceeds for

community-based drug and crime-fighting programs. !d.

40. Based on information from the Attorney General's Office, D.A.'s offices in

Pennsylvania, including Philadelphia, use forfeiture funds to pay salaries and purchase vehicles,

equipment, and other items and services of institutional value.

II.

PHILADELPHIA'S FORFEITURE PROGRAM IS UNPRECEDENTED IN SCALE.

41. Cashing in on the authority to retain forfeited property and derived proceeds, the

Philadelphia District Attorney's Office has brought in more than $90 million in forfeiture

revenue since 1987. See Isaiah Thompson, "The $10 Million Question," Philadelphia City

Paper, Nov. 29, 2012, available at http://issuu.com/phillycp/docs/cp_2012-11-29.

42. Philadelphia has one of the largest municipal forfeiture programs in the country,

yielding an average of $5.8 million in forfeiture revenue each year.

43. By contrast in 2010, Kings County (Brooklyn), with a population 1.5 times that of

Philadelphia, and Los Angeles County, with a population more than 6.5 times that of

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Philadelphia, each brought in $1.2 million in annual forfeiture revenue. 44. When measured against other counties in Pennsylvania-in other words, when
measured against other jurisdictions operating under the same state forfeiture law-Philadelphia is in a class of its own. Between 2004 and 2009, Philadelphia collected approximately $36 million through civil forfeiture-an amount twice that of the three next-largest counties in Pennsylvania combined. And since 2009, Philadelphia's forfeiture pot has kept growing.
45. Forfeiture data obtained from the Pennsylvania Office of the Attorney General reveal the extent to which Philadelphia's forfeiture activity far exceeds that of other Pennsylvania counties. From Fiscal Years 2002 through 2012, the Philadelphia D.A.'s Office collected a total of$64,219,356.00 in forfeiture revenue, while the remaining 66 county D.A.'s Offices collected a combined total of $84,419,638.50. That means that for this eleven-year period, Philadelphia's forfeiture revenue amounted to 43 percent of the statewide total. The amount each D.A. 's Office collected in forfeiture revenue is illustrated below in Table 1.

Table 1 Total Forfeiture Revenue

70000000 60000000

+ Philadelphia

50000000 ! -

40000000

30000000

20000000

I .- 10000000

~

-* -.

• -

-.

0 . . . . . . . . . . . . . . . . . . . . . . . ., . . ·...... ~ ...............

46. In statistical terms, the amount of Philadelphia's forfeiture revenue is almost 8 standard deviations above the mean. In laymen's terms, Philadelphia is as aberrant as a 7-foot-

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Case 2:14-cv-04687-ER Document 40 Filed 11/17/14 Page 14 of 59

tall woman or an 8-foot-tall man. 47. Even accounting for differences in population size and assuming that more
populous counties will take in more in forfeiture revenue, the Philadelphia D.A.'s Office is still an outlier. As illustrated below in Table 2, the Philadelphia D.A. 's Office collected $42.59 in per capita forfeiture revenue, more than twice that of the next most active county.

Table 2

Total Forfeiture Revenue Per Capita

$45.00 y----

+ Philadelphia

1-= $40.00
1 $35.00 I__

I$30.00 $25.00

..---=-.--·-.--- --.· !-~ . 1s2o.oo $15.00 $10.00

'·....... .......... . ~· $5.00
$0.00

-~ -

-• ...... ..~. ~ •

__JT ~

------'---... . .

48. From Fiscal Years 2002 through 2012, the amount of civil-forfeiture revenue collected by the Philadelphia D.A.'s Office (prior to any disbursements by the Office) averaged close to one-fifth of the general budget of the D.A.'s Office as appropriated by the City of Philadelphia.
49. By comparison, the civil-forfeiture revenue taken in by the District Attorney's Office for Allegheny County, the second largest county in Pennsylvania, averaged approximately 8.7 percent of that office's appropriated budget.
50. On the expense side of the equation, the Philadelphia D.A. 's Office spends much of its forfeiture revenue to pay salaries, including the salaries of the prosecutors that administer Philadelphia's civil-forfeiture program.
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Case 2:14-cv-04687-ER Document 40 Filed 11/17/14 Page 15 of 59

51. Using forfeiture proceeds to pay the salaries of the very individuals responsible for pursuing forfeiture presents a direct conflict of interest.
52. The Philadelphia D.A.'s Office spends twice as much of its forfeiture revenue on salaries as all other county D.A. 's offices combined. From Fiscal Years 2002 through 2012, the Philadelphia D.A.'s Office spent $25,516, 155 of its forfeiture revenue on salaries, compared to $12,315,340.43 spent on salaries by all other D.A.'s Offices in the Commonwealth. The amount of forfeiture revenue D.A. offices in the Commonwealth spent on salaries during Fiscal Years 2002 through 2012 is illustrated below in Table 3.

Table 3 Amount of Forfeiture Revenue Spent
on Salaries

$30,000,000.00 $25,000,000.00

+ Philadelphia

$20,000,000.00 .,
I Sls,ooo,ooo.oo I

$10,000,000.00

$5,000,000.00

53. Again, taking into account population size, the total amount per capita that Philadelphia spent on salaries during this time period was $16.92, while all other counties combined only spent $1.11 per capita.
54. In contrast, from Fiscal Years 2002 through 2012, the Philadelphia D.A.'s Office spent none of its forfeiture revenue on community-based drug and crime-fighting programs under 42 Pa. Cons. Stat. § 6801(h), despite its professed goal ofhelping communities combat
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drugs. 55. By written agreement, the Philadelphia D.A. 's Office has shared forfeiture
proceeds with the Philadelphia Police Department. Under the terms of this agreement, the first $927,500 forfeited each fiscal year was apportioned as follows: $727,500 to the Philadelphia D.A.'s Office to cover "forfeiture related administrative expenses," including salaries; and $200,000 to the Philadelphia Police Department. After distributing the initial $927,500, the agreement calls on the balance of the forfeiture revenue to be divided again, with 40 percent going to the Philadelphia D.A. 's Office and 60 percent going to the Philadelphia Police Department. Upon information and belief, District Attorney Williams and Police Commissioner Ramsey have executed a substantially similar agreement to share forfeiture proceeds that is in effect today.
A. Defendants Seize Large Quantities ofPersonal Property for Forfeiture. 56. Rather than being the product of a few large forfeitures from drug "kingpins," Philadelphia's forfeiture fund is amassed through seizing an unprecedented amount of personal and real property from thousands of ordinary-and often innocent-property owners. 57. When seizing personal property incident to an arrest or upon execution of a search warrant, it is the policy and practice of the Philadelphia Police Department to issue property receipts documenting the property that is seized. 58. It is the policy and practice of officers of the Philadelphia Police Department to routinely submit property receipts to the Philadelphia D.A.'s Office for the purpose of commencing a civil-forfeiture petition against the seized property. 59. The bulk of Philadelphia's forfeiture revenue comes from confiscating cash. 60. From Fiscal Years 2002 through 2012, Philadelphia seized and forfeited
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$44,291,178.00 in cash. 61. Notably, this amount was accumulated from thousands of cases involving small
sums of money, rather than a few large busts. 62. In 2010, Philadelphia filed 8,284 currency forfeiture petitions, with an average of
$550 involved in each case. 63. In a random sample of more than 100 currency-forfeiture cases from 2011 to 2012
that investigative reporter Isaiah Thompson reviewed, the median amount of cash at stake in each forfeiture case was only $178. See Isaiah Thompson, "The Cash Machine," Philadelphia City Paper, Nov. 29, 2012, available at http://citypaper.net/article.php?The-Cash-Machine19189. In many of these cases, the amount involved was less than $100.
64. Records from the Court of Common Pleas show sums as little as $9.00 being ordered forfeited.
65. Defendants' policy and practice oftaking such small amounts of money from people who are never convicted of (or even charged with) a crime raises serious concerns about whether the seized money is in fact substantially connected to criminal activity.
66. Defendants also seize a large number of vehicles through their forfeiture power. From Fiscal Years 2002 through 2012, Philadelphia seized and forfeited 3,290 vehicles.
67. It is Defendants' policy and practice to charge vehicle owners storage fees for their seized vehicles. These storage fees continue to accumulate until the owner of the vehicle files a motion for return of property. Defendants routinely fail to advise vehicle owners that storage fees will continue to accumulate until the owner files a motion for return of property.
68. Philadelphia also relies on civil forfeiture to seize other kinds of personal property from individuals, including but not limited to cell phones, clothing, jewelry, prescription
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medication, licensed firearms, and in one instance, a woman's jumper cables. B. Defendants "Seize and Seal" As Well As Restrain Numerous Real Properties for Fotfeiture. 69. Philadelphia aggressively uses civil forfeiture to seize and restrain real property
on a scale unlike that of any other county in Pennsylvania. 70. The Philadelphia D.A.'s Office files civil forfeiture petitions on 300 to 500 real
properties (mostly private residences) annually. Approximately an average of 100 ofthese properties are forfeited and sold at auction annually with the D.A.'s Office retaining the proceeds. A significant majority of the remaining real property cases "settle" under the threat of civil forfeiture.
71. Meanwhile, from 2008 through 2011, the three next-largest counties in Pennsylvania combined took only a dozen real properties through civil forfeiture.
72. As illustrated in Table 4 below, from Fiscal Years 2002 to 2012, Philadelphia forfeited 1,172 real properties compared to just 56 real properties forfeited by all other counties combined.

Table 4 Real Property Forfeitures

~1400
1200 1000 800

-----

• - PhHadetphia

600

400

200 0 ..................................................

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III. THIS HIGH VOLUME OF FORFEITURE Is ENABLED BY PHILADELPHIA'S ROBO-
FORFEITURE MACHINE.
73. The enormous volume of forfeiture cases-and ultimately the very substantial

amount of revenue generated-is all accomplished through a mechanized, assembly-line system

operated by a handful of prosecutors within a specialized unit of the Philadelphia D.A.'s Office

called the Public Nuisance Task Force.

74. The Public Nuisance Task Force files thousands of forfeiture petitions each year.

75. In 2011 alone, the Public Nuisance Task Force filed 6,560 civil-forfeiture

petitions.

76. By contrast, the Allegheny County D.A.'s Office-which serves the second-

largest county in Pennsylvania-filed roughly just 200 civil-forfeiture petitions from 2008 to

2011.

77. The Public Nuisance Task Force handles all forfeiture-related litigation, the

maintenance of seized property, and the investigation of potentially forfeitable property.

78. The Public Nuisance Task Force consists of approximately nine prosecutors, and

15 prosecution assistants, paralegals, and other support staff.

79. Each assistant district attorney in the Public Nuisance Task Force is assigned to a

geographic area of Philadelphia. 80. Each assistant district attorney in the Public Nuisance Task Force is responsible

for either civil-forfeiture cases involving personal property or civil-forfeiture cases involving real

property. A.

Philadelphia's Foifeiture Machine Uses an Automated Assembly-Line System to Maximize Petitions for Foifeiture, and Ultimately Revenue.

81. The Philadelphia D.A.'s Office generates the high volume of civil-forfeiture

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petitions by relying on prosecution assistants, paralegals, and support staff to simply copy information from Philadelphia Police Department Arrest Reports and Property Receipts onto form documents that become the Notice of Forfeiture and Petition for Forfeiture.
82. Before filing petitions for forfeiture of real property, it is the policy and practice of the Philadelphia D.A. 's Office to obtain, under 42 Pa. Cons. Stat. § 6802(f) and (g), ex parte temporary restraining orders for real property mandating that "no interest in this property (including but not limited to ownership, tenancy, easement, and purchase or rental option) may be sold, assigned, optioned, given, bequeathed or transferred in any manner." The temporary restraining order directs the Prothonotary to file the order without fee and index it as a lis pendens.
83. It is the policy and practice of the Philadelphia D.A. 's Office to apply for temporary restraining orders without making any evidentiary showing that providing the property owner with notice will jeopardize the availability of the property for forfeiture.
84. In addition to applying for temporary restraining orders to restrain the transfer of the target property, it is the policy and practice of the Philadelphia D.A.'s Office to apply for an ex parte order to seize and seal the premises under 42 Pa. Cons. Stat. § 6802(f) and (g). Applications to seize and seal contain the bald, conclusory allegation that the Commonwealth is moving for forfeiture of the real property under 42 Pa. Cons. Stat. §§ 6801, 6802 "because it was used and/or continues to be used (or intended to be used) to commit, or to facilitate the commission of, violations of the Controlled Substances Act." The application also contains minimal factual allegations copied verbatim from the Philadelphia Police Department Arrest Report, which is incorporated and attached to the application.
85. It is the policy and practice of the Philadelphia D.A. 's Office to apply for an order
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to seize and seal real property without providing any particularized evidence that the order is needed to preserve the specific property for civil forfeiture.
86. It is the policy and practice ofthe Philadelphia D.A.'s Office to apply for an order to seize and seal real property without making any particularized showing of exigent circumstances or that a temporary restraining order restricting transfer of the property will be insufficient to protect Defendants' interests during the pendency of the civil-forfeiture proceedings.
87. It is the policy and practice of the Philadelphia D.A.'s Office to apply for an order to seize and seal real property without giving property owners any notice or opportunity to be heard.
88. Under Defendants' policies and practices, Plaintiffs Sourovelis, Welch, and Hernandez, as well as members of the putative class first learn that their home is threatened with forfeiture when officers of the Philadelphia Police Department appear at their home, and, armed with the order to "seize and seal" the premises, forcibly evict them and all residents without any prior notice or opportunity to be heard.
89. It is the Philadelphia D.A.'s Office's policy and practice to send property owners threatened with civil forfeiture three form documents: (i) a notice of forfeiture; (ii) a verified petition for forfeiture; and (iii) a notice of hearing.
90. The notice of forfeiture is addressed "to the claimant ofthe within described property," that is, the person claiming any interest in the property threatened with civil forfeiture.
91. The form notice states that "you are required to file an answer to this petition, setting forth your title in, and right to possession of, said property within thirty (30) days from the service hereof, and you are also notified that if you fail to file an answer, a decree of
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forfeiture and condemnation will be entered against the property." 92. The petition for forfeiture contains allegations taken verbatim from the Police
Department Arrest Report. 93. The form petition for forfeiture also contains a bare assertion that the property
"was used and/or continues to be used (or intended to be used) to commit, or to facilitate the commission of, violations ofthe Controlled Substance[, Drug, Device and Cosmetic] Act."
94. The petition also includes a form affirmation that Assistant District Attorney Beth Grossman, the head of the Public Nuisance Task Force, or the assigned assistant district attorney "affirm that the facts set forth in the foregoing petition are true and correct to the best of her/his knowledge, information, and belief."
95. The notice of hearing states that a hearing on the forfeiture petition (and if applicable, on the entry of a restraining order and application to seize and seal the property) is set for a specified date and time in Courtroom 478, City Hall, Philadelphia, Pennsylvania.
96. Court records demonstrate that it is Defendants' policy and practice to cause to be listed anywhere from 40 to 80 civil-forfeiture actions to be heard in Courtroom 478 in a single day.
B. Property Owners Must Make Their Way Down the Legal Rabbit Hole of "Courtroom" 478.
97. Property owners who seek to fight the civil forfeiture and reclaim their property must show up in Courtroom 478 in City Hall by 9:00a.m.
98. In Courtroom 478, property owners are instructed to sign in and indicate with a checkmark on a sign-in sheet the kind of property they are there to save. The sign-in sheet lists the following categories of property: "house," "car," "money," or "gun."
99. Assistant district attorneys with the Public Nuisance Task Force fully control the
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proceedings inside "Courtroom" 478. There is no judge, no jury, and not even a court reporter to transcribe these "hearings."
100. Employees of the Philadelphia District Attorney's Office occupy both tables reserved for counsel, with prosecutors handling forfeiture cases for real property at the table on the right, and prosecutors, and frequently paralegals, handling forfeiture cases for personal property at the table on the left.
101. The prosecutors call the civil-forfeiture cases by comparing the sign-in sheet with the docket calendar for Courtroom 478.
102. Upon information and belief, for listed cases in which property owners fail to appear in Courtroom 478, the prosecutors mark the case for default judgment without any determination, judicial or otherwise, as to the reason the property owner did not appear.
103. For listed cases in which the property owner is present, the assigned prosecutor or paralegal discusses the case with the property owner. These conversations frequently take place at the counsel's table, out in the hall, in the empty jury box, or at a small table in the back of the room.
104. On first listings, these conversations are typically short, lasting no more than several minutes. Invariably, the prosecutors and paralegals demand that the property owners return with documentation supporting proof of legal ownership to the property.
105. Prosecutors and paralegals frequently advise property owners that their civilforfeiture case is not complicated and they do not need an attorney.
106. Prosecutors and paralegals routinely give property owners a set of more than 50 pattern interrogatories, with multiple discrete subparts, which they characterize as "questionnaires." These "questionnaires" must be answered under penalty of perjury.
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107. In cases in which there is an order to seize and seal, prosecutors compel property owners to execute an agreement to unseal the residence on certain conditions, including but not limited to, barring specified individuals including relatives from entering the residence indefinitely and waiving in any future civil-forfeiture action their statutory innocent-owner defense and their constitutional defense that the forfeiture constitutes an excessive fine.
108. Prosecutors and paralegals routinely continue and relist civil-forfeiture cases and they unilaterally determine whether any documentation provided by the property owner is sufficient.
109. When a case is relisted, the assigned prosecutor or paralegal fills in a form from the Forfeiture Program of the Civil Trial Division of the First Judicial District of Pennsylvania Court of Common Pleas of Philadelphia County, which instructs the property owner to return to Courtroom 478 in City Hall on a specified date (typically a month later) at 9:00a.m. The form advises the property owner:
PLEASE BE ON TIME.
A FAlLURE TO APPEAR MAY RESULT IN YOUR PETITION
BEING DISMISSED OR YOUR PROPERTY BEING FORFEITED .
110. Property owners contesting a forfeiture action may be required to appear as many as a dozen times in Courtroom 478 over the course of months or even years before the case is concluded.
111. In a review of 8,284 civil-forfeiture cases, property owners have been forced to return to Courtroom 478 an average of five times, risking a default judgment ifthey failed to appear just once. And more than 100 property owners were required to return to Courtroom 478 ten times or more. See Isaiah Thompson, "The Cash Machine," Philadelphia City Paper, Nov. 28, 2012, available at http://citypaper.net/article.php?The-Cash-Machine-19189.
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IV. THE NAMED PLAINTIFFS GET ENSNARED IN PHILADELPHIA'S "ROBO-FORFEITURE"
MACHINE.
112. Defendants' policies and practices threaten each of the Named Plaintiffs with the loss of their property and have already violated and continue to violate their constitutional rights to due process of law.
A. Named Plaintiff Christos "Chris" Sourovelis 113. Around noon on March 27, 2014, Christos "Chris" Sourovelis received a phone call from his neighbor, an officer in the Philadelphia Police Department, informing him out of courtesy that police were at his home. 114. Mr. Sourovelis immediately called his wife, Markela, who was home at the time. When she answered, all Mr. Sourovelis could hear was her sounding very upset and some commotion before the phone fell silent. 115. Mr. Sourovelis promptly left work to drive the hour-long ride home, calling his wife multiple times en route with no answer. Mr. Sourovelis learned later from his wife that the police had taken the phone from his wife and refused to let her answer. 116. When Mr. Sourovelis arrived, he learned that four or five armed law-enforcement officers came to his home to execute a search warrant, claiming that there were drugs in the house. 117. When the police arrived, Markela saw them from a window on the second floor of the house. However, at the time, she did not know they were police officers as none of the officers were wearing uniforms. They were outside the front door, which was unlocked. By the time Markela made her way downstairs, the officers had opened the door and their family dog Max was barking at the intruders. 118. One of the officers held a gun to Max's head, threatening to shoot ifMarkela did
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not restrain the dog so they could gain entry. Markela agreed but when she momentarily closed the front door in order to secure Max in an adjoining bedroom, the officers forced their way into the home and upstairs.
119. The officers searched through the house and found Mr. Sourovelis's then 22-yearold son, Y.S., with a small amount of drugs and drug paraphernalia. Y.S. had been observed by a police officer selling $40 worth of drugs to a confidential informant outside the home on a previous day.
120. Y.S. was an honors student at a community college and at the time of his arrest was in the process of trying to transfer to Temple University. While working at a restaurant-bar as a cook, he had fallen in with the wrong crowd. He has never been in trouble with the law before.
121. After arresting Y.S. and searching other rooms in the home, the officers showed Markela the search warrant. One of the officers said, "This house is gonna be ours. We're gonna break your walls and throw you out. You will be living in the street."
122. Y.S. was charged with seven drug offenses all relating to the same incident. On April22, 2014, most of these charges were dropped and Y.S. pleaded no contest to possession with intent to distribute and conspiracy. Because Y.S. had no prior record, he was directed, with the agreement of the Philadelphia D.A.'s Office, to the Philadelphia Treatment Court for a diversion program requiring him to attend a drug rehabilitation program.
123. With Y.S. poised to get the help he needed and his criminal case resolved, Mr. and Mrs. Sourovelis thought the worst was behind them.
124. But on the morning of May 8, 2014, while Mr. Sourovelis was driving Y.S. to the drug rehabilitation center to begin treatment, he received a frantic call from his wife. Officers
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from the Philadelphia Police Department had come to the home, once again without any notice, to order the family to leave their home.
125. The day before, Assistant District Attorney Daren Waite had applied for and received an ex parte order to seize Mr. Sourovelis's home and seal it to prevent entry.
126. This was how Mr. Sourovelis and his family learned that they could permanently lose their entire home through civil forfeiture due to the small amount of drugs Y.S. had possessed and sold.
127. When Markela protested about being kicked out of her home, one of the police officers told her, "We do this four, five times a week. You will see a judge in a week. You can plead your case to him."
128. The officers gave Markela legal documents including a "Notice of Hearing" which stated that a hearing was set for May 14,2014 at 9:15a.m. in Courtroom 478 in City Hall.
129. Made homeless, Mr. Sourovelis, along with his wife and two daughters, were forced to stay at his eldest son's home. Y.S. was still at the residential drug rehabilitation center as required by the Philadelphia Treatment Court and agreed to by the Philadelphia D.A.'s Office.
130. On May 13, 2014, Mr. Sourovelis mistakenly went to Courtroom 478 a day earlier than the scheduled hearing. He was informed that he had to return the next day, but that to expedite matters he could send Assistant District Attorney Daren Waite a letter explaining why he and his family needed to be let back into their home. Markela drafted a letter the same day explaining why the family immediately needed to be let back into its home and faxed it to ADA Waite .
131. On May 14, 2014, Mr. Sourovelis and his wife arrived at Courtroom 478 well before 9: 15 a.m. There was no judge in the courtroom.
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132. Eventually ADA Waite arrived and called Mr. Sourovelis's case. ADA Waite confirmed that they were not represented by counsel and then advised Mr. Sourovelis that he would not need a lawyer for these proceedings as the matter would not "go to court."
133. ADA Waite had in his hand the fax ofMarkela's letter explaining why the Sourovelises needed to be let back into their home. ADA Waite informed Mr. and Mrs. Sourovelis that in order to have their home "unsealed" and be let back into our house, he needed to put the contents of the letter onto a legal document for the judge to sign. He advised that after Mr. and Mrs. Sourovelis signed the legal document, he would take the letter over to a judge to sign and that after that, the Sourovelises would be let back into their home.
134. Distraught and overwhelmed, Mr. and Mrs. Sourovelis signed the document without reading it but believing, based on ADA Waite's representations, that they were signing a document that substantively explained why they needed to be let back into our home.
135. ADA Waite told Mr. and Mrs. Sourovelis to meet him outside the judge's chambers in a courthouse across the street. They waited outside the room for about 20 minutes before ADA Waite appeared and told them that they would now be allowed back into their home but that they needed to come back to Courtroom 478 on June 13, 2014. ADA Waite never explained the contents of the document signed by Mr. and Mrs. Sourovelis and never explained at that meeting that the document they signed barred their son from entering their home.
136. Mr. and Mrs. Sourovelis learned for the first time that their son was not permitted in their home for any reason while reading through the document on the car ride home after the May 14, 2014 "hearing." At that time, Mr. and Mrs. Sourovelis also learned that the document contained a number of other conditions but without counsel, they were unclear on what the other conditions meant. The other conditions included relinquishing, in any future forfeiture action,
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both Mr. Sourovelis's innocent-owner defense under Pennsylvania law as well as his constitutional right to challenge the forfeiture of his home as an excessive fine.
137. Because their son was going to be in the residential drug treatment program for the next month, Mr. and Mrs. Sourovelis decided to wait until the next "hearing" in Courtroom 478 to get clarification in person.
138. In all, the seize-and-seal order caused the Sourovelis family to be forcibly evicted from their home for at least seven days. Because ADA Waite had neglected to include language in the agreement directing utility companies to reinstate service, it took an additional three to four days after Mr. and Mrs. Sourovelis signed the initial agreement to get the electric and gas running again, as well as get the front door lock replaced.
139. The forfeiture case against their home was relisted for June 13, 2014. At that "hearing," Mr. and Mrs. Sourovelis asked about when their son could return home. ADA Waite responded that they would both need to follow the process and procedures and when the process was completed, their son could return home.
140. ADA Waite explained that the first step in the process was to respond to the forfeiture petition. He instructed Mr. and Mrs. Sourovelis to respond in handwriting to each allegation contained in the forfeiture petition, marking each allegation as true or false. ADA Waite then filed this hand-marked document as the answer to the forfeiture petition on behalf of the Sourovelises. The case was then relisted once again for July 10, 2014.
141. On July 7, 2014, around 4:30PM, Mrs. Sourovelis received an email from ADA Waite instructing Mr. Sourovelis to answer the attached interrogatories within thirty days. The accompanying letter stated that the forfeiture action was next listed for July 10, 2014 and directed Mr. Sourovelis to complete the interrogatories and attach and mail all requested
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documents to ADA Waite. These interrogatories contained 50 questions with numerous subparts. The interrogatories contained an affirmation for Mr. Sourovelis to sign that all foregoing answers are true and correct to the best of his knowledge, information and belief, and that he "understands that the facts herein are verified subject to penalties for unsworn falsification to authorities."
142. At the July 10, 2014 hearing, ADA Waite personally handed Mr. Sourovelis a copy of the interrogatories and relisted the case until August 12, 2014.
143. On or about August 11, 2004, ADA Waite received communication from the public defender representing Y.S. in his criminal matter. The public defender advised ADA Waite, that Y.S. had successfully completed an inpatient rehabilitation program and was attending an outpatient program. The public defender requested that Y.S. be permitted to return to the property to reside with his family. ADA Waite agreed to draft an agreement to permit Y.S. to return home.
144. However, at the August 12, 2014 hearing, ADA Waite offered Mr. Sourovelis a settlement agreement in which the Philadelphia D.A.'s Office would withdraw the forfeiture petition if Mr. Sourovelis would agree to:
• Waive his right to a trial on the merits of the forfeiture petition against his home, including his right to present evidence and cross-examine witnesses presented by the Commonwealth;
• Admit that his home was being used to commit and/or facilitate a controlledsubstance violation;
• Waive his innocent-owner defense under 42 Pa. Cons. Stat. § 68020); • Agree that any future controlled-substances violation with a "nexus" to his home
would result in the Commonwealth's ability to forfeit the property; • Subject "any prospective lessee, tenant, buyer or transferee of the property" to
prior review by the Commonwealth;
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• Give the Commonwealth power to reject any prospective lessee, tenant, buyer, or transferee;
• Screen prospective lessees, tenants, buyers, residents, or transferees ofthe property, including credit history and reference checks;
• Agree that the District Attorney's Office can re-file the forfeiture petition if it determines the agreement is violated; and
• Waive any affirmative defense based on res judicata, laches, innocent owner, or the Excessive Fine Clause, if the Commonwealth refiles the forfeiture petition in the future.
145. Due to these conditions, Mr. Sourovelis refused to sign the agreement. 146. Y.S., completed his residential drug rehabilitation program on or about June 10, 2014 and since that time has been living with his older brother, sleeping on the couch for the past five months. Y.S. is anxious to start his life over and feels he cannot really move past his mistakes while he is still living in limbo at his brother's place. He wants the security of being back at home with his parents. Additionally, Y.S. finds it difficult to apply for a job or apply to go back to school because he does not have reliable means of transportation at his brother's home. 147. Both Mr. and Mrs. Sourovelis want their youngest son to be back in their home so they can keep an eye on him and make sure that he complies with the requirements of the diversion program and keeps out of additional trouble. 148. Mr. Sourovelis and his family have suffered irreparable injuries from being evicted from their home without notice or an opportunity to be heard before a neutral arbiter. While evicted, they were forced to stay with their eldest son. Mr. Sourovelis and his wife had to sleep on one sofa while his two daughters, the older of whom was pregnant, slept on another sofa. The entire family had to go without many of their personal effects, including sufficient
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changes of clothes. Their daily family routine was interrupted. To take just one example, their youngest daughter was unable to attend school for six days because her brother's home was not on the bus route and Mr. and Mrs. Sourovelis's work schedules did not permit them to drive her to and from school.
149. Mr. Sourovelis continues to suffer hardship due to his son being barred from living in, or even entering, his home.
150. Mr. Sourovelis has suffered and continues to suffer hardship by being required to take off from work and drive 30-40 minutes fighting traffic to attend "hearings" in Courtroom 478.
151. Mr. Sourovelis is also threatened with irreparable injury of losing his home of almost eight years, where his wife, two daughters, and until recently his youngest son, live with Max the dog. Mr. Sourovelis has spent significant time, labor, and money in furnishing and renovating his home, including a garden in the backyard that contains custom masonry work built by Mr. Sourovelis himself.
B. Named PlaintiffDoila Welch 152. On Saturday, February 1, 2014, while still in bed in the front bedroom on the second floor, PlaintiffDoila Welch was startled by police officers running upstairs to her bedroom with guns drawn. 153. When the police arrived, Ms. Welch's daughter (who recently turned 12) was showering in the second-floor bathroom while her son (who was 23 at the time) was in his bedroom on the third floor. 154. Police ordered all occupants downstairs, barely allowing Ms. Welch's daughter to get dressed. Due to her physical disability, Ms. Welch required assistance in getting dressed and
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descending the stairs. A female officer was called to assist. 155. The police officers conducted a full search of the house, kicking in Ms. Welch's
son's bedroom door, breaking his gaming system, and taking $40 in cash that was on his bedside table, money Ms. Welch had given him as an allowance for assisting her with errands due to her disability.
156. The officers did not find any drugs or drug paraphernalia in Ms. Welch's son's room.
157. The officers also seized $30 from Ms. Welch's bedroom, money she had set aside to give her daughter to buy a school jacket with the school logo.
158. Unbeknownst to Ms. Welch, however, her husband had been selling marijuana out of her home. Ms. Welch and her husband had been alienated for some time due to marital problems. And because Ms. Welch is frequently bed-ridden on the second floor, while her husband stayed on the main floor, they do not interact often.
159. At the time of the police entry, Ms. Welch's husband, Ronald "Renal" Requena, Sr., was in the kitchen on the main floor. Police arrested Mr. Requena, Sr. for selling drugs.
160. Police also arrested Ms. Welch's son on conspiracy charges. 161. The police officers handed Ms. Welch a search warrant after taking her husband and son away. 162. Ms. Welch thought the nightmare was over. Putting aside her anger at her husband for placing her family in this situation, she focused on getting her son, who was innocent of any wrongdoing, out ofjail. 163. On February 21, 2014, police officers again showed up to Ms. Welch's home, without any notice. This time, the police informed Ms. Welch and the remaining occupants that
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everybody living in the house had to gather their belongings and leave because the City was seizing the house. Ms. Welch was handed a set of legal documents.
164. After Ms. Welch's protests and pleading based on her and her sister's medical conditions, police told her that they could remain in the house but that both Mr. Requena and Ms. Welch's son would not be permitted in the house.
165. On February 19,2014, Assistant District Attorney James Dellafiora had filed a forfeiture petition against Ms. Welch's home. On February 19,2014, ADA Dellafiora also submitted an ex parte application to seize Ms. Welch's home and seal it to prevent entry, which was granted the same day.
166. On February 19, 2014, a "hearing" on the civil-forfeiture petition was set for March 3, 2014 in Courtroom 478. Due to a snowstorm, this "hearing" was postponed until March 27,2014 at 9:00a.m.
167. To attend the hearing on March 27, Ms. Welch had to cancel a doctor's appointment. With the assistance of her son, Ms. Welch arrived around 9:00a.m. in Courtroom 478.
168. At around 9:35a.m., ADA Dellafiora called out her case. 169. ADA Dellafiora advised Ms. Welch that she did not need an attorney, but if she wanted one, she could call organizations that provide pro bono legal aid. 170. Ms. Welch did not call legal aid in reliance on ADA Dellafiora's advice that she did not need an attorney. 171. ADA Dellafiora asked Ms. Welch whether she knew her husband was selling marijuana. Ms. Welch replied, no, explaining her marital situation. ADA Dellafiora informed Ms. Welch that he would mail her a set of questions and that she should answer the questions to
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the best of her ability and should send them back to him. 172. Ms. Welch asked ADA Dellafiora whether her son could return home, explaining
how her son assisted her with daily tasks. ADA Dellafiora responded that her son could enter the home to assist her but that he would not be permitted to live there. ADA Dellafiora told Ms. Welch that he would send her documentation to that effect.
173. He also provided Ms. Welch with a notice to return to Courtroom 478 on May 29, 2014.
174. Because there was no judge in the courtroom and there did not appear to be any kind of hearing, Ms. Welch understood ADA Dellafiora to be saying that her hearing before the court was cancelled and rescheduled for May 29, 2014.
175. Upon information and belief, after this "hearing" concluded, an assistant district attorney went to Courtroom 504 in the Criminal Justice Center and presented a proposed order temporarily restraining the property from being "sold, assigned, optioned, given, bequeathed, or transferred in any manner" for the pendency of the litigation. The proposed order was signed the same day.
176. More than a week passed without Ms. Welch receiving any documentation on the status of her son or hearing anything from ADA Dellafiora. Ms. Welch left several messages for ADA Dellafiora that were not returned.
177. On May 29, 2014, Ms. Welch, with the assistance of her son, again made her way to Courtroom 478. She brought with her a copy of the probate papers showing that she was one of the rightful heirs to her parents' estate.
178. At this "hearing," ADA Dellafiora advised Ms. Welch that most likely the forfeiture action could be resolved without any complications if she would pay a fine.
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179. ADA Dellafiora also advised Ms. Welch that he would send her an email containing a "questionnaire" for her to complete.
180. Upon information and belief, the "questionnaire" ADA Dellafiora was referencing is the same pattern form interrogatories received by Plaintiff Sourovelis.
181. At the May 29, 2014 hearing, Ms. Welch informed ADA Dellafiora that all charges against her son were dismissed for lack of evidence and asked whether her son would be able to reside with her. ADA Dellafiora responded in the affirmative but indicated that her husband would still not be permitted to enter the property. He promised to send Ms. Welch paperwork documenting this arrangement.
182. No court has entered any order prohibiting Ms. Welch's son or husband from entering the property.
183. Because Ms. Welch was previously scheduled to be out ofthe country from midJune through August 8, her forfeiture case was relisted for August 12, 2014. The Institute for Justice secured pro bono counsel for Ms. Welch in her state forfeiture proceeding.
184. On August 12, 2014, ADA Dellafiora provided Ms. Welch's counsel in the state forfeiture proceeding and her counsel in the instant federal lawsuit with a copy of a proposed order permitting Ms. Welch to "unseal and re-enter" her home under the following conditions:
• Mr. Renal Requena is "not permitted to enter the property until the resolution of litigation on this matter";
• Ronald L. Requena, Jr. "is permitted to enter the property to assist in the daily care of Doila Welch" but "is not to reside at the property until this matter is settled";
• "Failure to abide by the above-listed conditions or [future] violations ofthe Controlled Substances Act with a nexus to the Property shall result in this unsealing order becoming NULL and VOID, and the property shall be immediately resealed"; and
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• Ms. Welch "shall lose the right to assert an innocent owner defense in this forfeiture matter."
185. Based on the clear language ofthis proposed order, Ms. Welch reasonably believes that she and her family will be evicted from their home if she fails to sign the order. Ms. Welch does not want to sign the proposed order because she believes her son should be allowed to reside in the home right now.
186. Ms. Welch has sustained irreparable injuries due to Defendants' civil-forfeiture policies and practices.
187. Ms. Welch has sustained irreparable injuries due to her son being temporarily barred from living in her home. Her son helps her with various tasks like cooking her breakfast, and taking her to her doctor's appointments. For almost two months, Ms. Welch was deprived of her son's assistance. During that time, Ms. Welch would have to take a taxi to any appointments because she cannot use public transportation without assistance.
188. Ms. Welch continues to sustain irreparable injuries due to the threat of being evicted from her home without any notice or an opportunity to be heard.
189. Ms. Welch suffers anxiety from the uncertainty as to whether her son is allowed to live with her or whether Defendants will permanently bar her son from her home.
190. Ms. Welch has also suffered hardship by being required to endure physical exertion to attend "hearings" in Courtroom 478 again and again at which she does not get an opportunity to be heard by a fair and neutral arbiter.
191. Ms. Welch is also threatened with irreparable injury of losing her home which has been in her family for almost 20 years.
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C. Named PlaintiffNorys Hernandez 192. PlaintiffNorys Hernandez and her sister, Sonia Gonzalez, together own a rowhouse located at 3415 North Marshall Street, in which Sonia resided with her children. 193. On April17, 2014, Mrs. Hernandez's nephew, who is the son of Sonia, was arrested outside 3415 North Marshall Street for selling and possessing a small amount of drugs. 194. On or about June 2, 2014, Assistant District Attorney Steven Agami filed an ex parte application to seize and seal 3415 North Marshall Street. 195. On June 2, 2014, the Court of Common Pleas entered an order authorizing Defendants to seize and seal the property. 196. At the same time, ADA Agami filed an ex parte application for a restraining order restraining the sale, encumbrance, assignment, gifting, or transfer of the property. 197. On or about June 3, 2014, Mrs. Hernandez was informed that Defendants were pursuing civil forfeiture against the property and that, pursuant to the seize-and-seal order, no one could enter the property. 198. At the time, Ms. Gonalzez was in Puerto Rico. Accordingly, Ms. Gonzalez was unable to retrieve any of her clothing, personal belongings, or even medication for the entire duration the "seize and seal" order was in effect. 199. A "hearing" on the order to seize and seal the property, the restraining order, and the petition for forfeiture was set for June 12, 2014. 200. At the "hearing" ADA Agami instructed Mrs. Hernandez to return to Courtroom 478 at the next listing with a copy of the deed and documentation of why Ms. Gonzalez needed to be let back into the house. ADA Agami did not propose any agreement to unseal the property. 201. The forfeiture case was relisted for August 12, 2014 for a "hearing" in Courtroom
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478. 202. At the August 12, 2014 "hearing," ADA Agami indicated Mrs. Hernandez and
Ms. Gonzales could return to their property if they would sign a proposed unsealing order containing conditions and provided their counsel in the state court forfeiture proceeding with a copy of the proposed unsealing order.
203. Mrs. Hernandez and Ms. Gonzalez signed the agreement on October 6, 2014 and were let back into their home. Under the terms of the agreement, Mrs. Hernandez's nephew, Ms. Gonzalez' s son, is prohibited from entering the property.
204. Mrs. Hernandez suffered from irreparable injury from having her property seized and sealed without any notice or opportunity to be heard.
205. Mrs. Hernandez is also threatened with irreparable injury of having her property seized and sealed again.
D. Named PlaintiffNassir Geiger 206. On January 17, 2014, around 9:00 p.m., Mr. Geiger was driving his 2000 Buick LeSabre through a McDonald's parking lot on the 2800 block of Cottman Avenue, Philadelphia, Pennsylvania. When he recognized an acquaintance of his, Mr. Geiger stopped to say hello. After a few minutes of small talk about the weekend, Mr. Geiger drove away. 207. Unbeknownst to Mr. Geiger, his acquaintance had been arrested shortly before for possession of 0.4 grams of powder cocaine. 208. Shortly thereafter, Mr. Geiger was stopped by police officers near the 3200 block of Cottman Avenue. The officers searched the car but did not find any drugs or drug residue. Nevertheless, the officers seized Mr. Geiger's car and $580 he was carrying because the police found empty ziplock bags in the car.
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209. Police arrested Mr. Geiger and only gave him a property receipt for $465.00 despite seizing $580.00. The police did not give Mr. Geiger a property receipt for his car.
210. On the advice of a court-appointed defense attorney, Mr. Geiger accepted a plea agreement whereby he pled guilty to one count of possession of drug paraphernalia-the empty ziplock bags. In exchange for paying a $200 fine and performing 20 hours of community service, Mr. Geiger's record would be expunged. The plea deal did not include forfeiture of his car or his money. To the contrary, Mr. Geiger's defense attorney advised him that accepting the plea agreement was the easiest way to get his car and money back.
211. Mr. Geiger believed that his car and money were simply seized as evidence and that they would be returned to him upon complying with the terms of the plea agreement. He learned only later that the Philadelphia D.A. 's Office was attempting to permanently keep his property through civil forfeiture.
212. The Philadelphia D.A.'s Office never informed Mr. Geiger that he would need to file a motion for return of property in order to stop storage fees from accruing on his vehicle.
213. Sometime after May 23, 2014, Mr. Geiger received a notice of forfeiture for his car. The notice stated that he must appear in Courtroom 478 in City Hall at 9:00 a.m. on June 25, 2014.
214. When Mr. Geiger appeared in Courtroom 478, there was no judge. Instead he spoke with a female employee of the Philadelphia D.A.'s Office. Upon information and belief, this female employee is not a prosecutor, but rather, a paralegal or other support personnel.
215. Mr. Geiger was told that, instead of completing a request for interrogatories, he could choose to forfeit his car. Mr. Geiger declined to consent to the forfeiture of his car and completed the interrogatories to the best of his ability without the assistance of counsel, as he
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was unrepresented at the time. 216. The cover letter to the interrogatories referenced "Request for Interrogatories,
Innocent Owner-Vehicle." The letter was unsigned and incorrectly dated January 14,2010. 217. Mr. Geiger inquired about his money that was seized. The Philadelphia D.A.'s
Office employee replied she would look into it. She also instructed Mr. Geiger to return to Courtroom 478 on August 13, 2014 for another "hearing".
218. At the August 13, 2014 "hearing," Assistant District Attorney Jennifer Kralle informed Mr. Geiger and his counsel that Mr. Geiger owed more than $1,800 in storage fees accrued since his car had been seized. She further informed him that he would need to pay those fees to get his car returned.
219. Based on a review of records of the Court of Common Pleas, the Philadelphia D.A.'s Office separately filed a forfeiture petition against $465.00 owned by Mr. Geiger. The "hearing" on that forfeiture petition was listed for March 11, 2014, and again on June 16, 2014. Mr. Geiger never received a copy of the hearing notice or forfeiture petition for his money. Because Mr. Geiger failed to appear at these "hearings," his money was forfeited through a default judgment.
220. Due to Defendants' policies and practices, Mr. Geiger was forced to go without any car for more than two months. During this period, instead of the 10-minute drive to work, he was forced to take public transportation, switching buses, thereby increasing his commuting time to 45 minutes to an hour. On other occasions, he was forced to borrow his mother's car.
221. Mr. Geiger found that being deprived of his car was unsustainable. Toward the end of March, he purchased a used 2006 Cadillac for $17,800. Mr. Geiger financed this purchased with a five-year bank loan in which he makes monthly payments of $340.00.
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222. Additionally, due to state law, Mr. Geiger is forced to pay more than twice as much for car insurance because his 2006 Cadillac is financed whereas he owned his 2000 Buick LeSabre outright.
E. PlaintiffMembers ofthe Putative Class 223. These factual allegations pertaining to Plaintiffs Sourovelis, Welch, Hernandez, and Geiger are similar to the experiences of other property owners in Philadelphia threatened with civil forfeiture. 224. Defendants' policies and practices have caused members of the class extreme hardship such as being left homeless or being left without needed medication after either it or the property housing the medication has been seized. 225. Defendants' policies and practices have resulted in the entry of default judgments, entered without notice or due process of law, which cause the permanent loss of property. 226. Defendants' policies and practices have forced property owners to evict friends and family members from living with them in order to have their properties unsealed and returned to them. 227. Defendants' policies and practices have forced property owners to agree to waive statutory and constitutional defenses to potential forfeiture proceedings in the future in order to have their properties unsealed and returned to them or to have the forfeiture petitions withdrawn. 228. Defendants' policies and practices have forced property owners to repeatedly return to Courtroom 478 for "hearings" run by Defendants or else risk losing their property by a default judgment. 229. Defendants' policies and practices have forced property owners to appear in Courtroom 478 for "hearings" that are run by Philadelphia prosecutors who have a direct
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financial interest in the outcome of the proceedings. CLASS ACTION ALLEGATIONS
230. Named Plaintiffs Sourovelis, Welch, Hernandez, and Geiger seek to maintain this action on behalf of themselves and all others similarly situated under Rule 23(b)(2) of the Federal Rules of Civil Procedure. A class action is superior to other available methods for the fair and efficient adjudication of this controversy.
231. The Named Plaintiffs propose the following class definition: "all persons who own property that currently is or will be the subject of a civil-forfeiture petition brought by the Philadelphia D.A.'s Office."
232. This action meets all the Rule 23(a) prerequisites of maintaining a class action. 233. Numerosity under Rule 23(a)(l): The putative class is so numerous that joinder of all members is impracticable.
a. In 2011 alone, the Philadelphia D.A.'s Office filed 6,560 civil-forfeiture cases. b. Between June 1, 2014, and July 31,2014, the Philadelphia D.A.'s Office listed 2,220 forfeiture cases for "hearings" in Courtroom 478 of City Hall. 234. Commonality under Rule 23(a)(2): This action presents questions oflaw and fact common to the putative class, resolution of which will not require individualized determinations of the circumstances of any particular plaintiff. Common questions of fact include, but are not limited to: a. Do Defendants have a policy and practice of seizing real property without providing property owners notice or an opportunity to be heard? b. Do Defendants have a policy and practice of compelling property owners
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to sign agreements in which the owners waive statutory and constitutional

defenses to unknown future forfeiture proceedings in order to have Defendants

unseal their homes and other real property or to withdraw forfeiture petitions

against homes and other real property?

c. Do Defendants have a policy and practice of failing to provide prompt

post-seizure hearings to individuals whose property has been seized?

d. Do Defendants have a policy and practice of repeatedly "relisting"

forfeiture actions and requiring property owners to make monthly court

appearances, each of which increase the risk of a default judgment?

e. Do the Law-Enforcement Defendants have a policy and practice of

retaining all forfeited property and its proceeds?

f.

Do Defendants have a policy and practice of having assistant district

attorneys control forfeiture proceedings in Courtroom 478?

Common questions of law include, but are not limited to, whether the above-described policies

and practices violate the Due Process Clause of the Fourteenth Amendment.

235. Typicality under Rule 23(a)(3): The Named Plaintiffs' claims are typical ofthe

claims of the putative class.

a. The Named Plaintiffs' claims as well as those of the putative class

members arise out of the same course of conduct by Defendants, are based on the

same legal theories, and involve the same harms.

b. Additionally, the Named Plaintiffs are seeking the same relief for

themselves and members of the putative class.

236. Adequacy ofRepresentation under Rule 23(a)(4): The interests of the putative

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class are fairly and adequately protected by the Named Plaintiffs and their attorneys.

a.

The Named Plaintiffs adequately represent the putative class because their

interests are aligned and there are no conflicts of interest between the Named

Plaintiffs and members ofthe putative class.

b. The Named Plaintiffs and putative class members are ably represented pro

bono by the Institute for Justice and local counsel David Rudovsky. Founded in

1991, the Institute for Justice is a nonprofit, public-interest law firm that litigates

constitutional issues nationwide. The Institute for Justice has particular expertise

in protecting property rights, including challenging civil-forfeiture programs on

constitutional grounds. In bringing this action, the Institute for Justice has done

extensive work to identify and investigate Plaintiffs' claims. David Rudovsky, a

founding partner ofKairys, Rudovsky, Messing & Feinberg, LLP, has practiced

for over forty years and has considerable experience in bringing class actions.

237. This action also meets the requirements of, and is brought in accordance with, Rules 23(b)(2) ofthe Federal Rules of Civil Procedure. Defendants have acted, or refused to act,

on grounds generally applicable to the class. Final injunctive and declaratory relief is

appropriate with respect to all of the members ofthe class.

CONSTITUTIONAL VIOLATIONS

FIRST CLAIM FOR RELIEF:

FAILURE TO PROVIDE NOTICE OR A HEARING BEFORE SEIZING REAL PROPERTY VIOLATES THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT

238. Plaintiffs re-allege and incorporate by reference each and every allegation set

forth in~~ 1 through 236 above.

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239. Under Defendants' policies and practices, Plaintiffs Sourovelis, Hernandez, and Welch, as well as members of the putative class, first learn that their home is threatened with forfeiture when officers of the Philadelphia Police Department appear at their home, and armed with the order to "seize and seal" the premises, forcibly evict them and all residents without any prior notice or opportunity to be heard.
240. Defendants and their agents have seized and sealed the homes ofNamed Plaintiff Sourovelis and members of the putative class like Ms. Gonzales without first providing them with notice and a meaningful opportunity to be heard.
241. Defendants and their agents have seized and sealed real property owned by Named Plaintiff Hernandez and members of the putative class without first providing them with notice and a meaningful opportunity to be heard.
242. Defendants and their agents have applied for and received orders to seize and seal the home ofNamed Plaintiff Welch and members of the putative class, like Ms. Gonzales, without first providing them with notice and a meaningful opportunity to be heard.
243. Defendants have a policy and practice of relying on 42 Pa. Cons. Stat. § 6802(f) and (g) to seize real property without first providing owners or residents of the property with notice and a meaningful opportunity to be heard.
244. It is the policy and practice of the Philadelphia D.A. 's Office to apply for ex parte orders to seize and seal real property without providing any particularized evidence that the order is needed to preserve the specific property for civil forfeiture or that providing notice will jeopardize the availability of the property for forfeiture.
245. It is the policy and practice of the Philadelphia D.A. 's Office to apply for ex parte orders to seize and seal real property without proffering any particularized evidence of exigent
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circumstances as defined by United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) and its progeny.
246. It is the policy and practice ofthe Philadelphia D.A. 's Office to treat mere possession or the single sale of controlled substances in a particular real property as exigent circumstances warranting ex parte seizure. However, the Supreme Court has recognized that the presence of controlled substances in real property does not by itself constitute exigent circumstances sufficient to justify ex parte seizure of real property.
247. It is the policy and practice of the Philadelphia D.A. 's Office to apply for an ex parte order to seize and seal real property without proffering any evidence that a temporary restraining order restricting transfer of the property or other less restrictive means will be insufficient to protect Defendants' interests during the pendency of the civil-forfeiture proceedings.
248. Defendants' policy and practice of seizing real property without first providing notice and a meaningful opportunity to be heard violates the Due Process Clause of the Fourteenth Amendment.
249. Defendants' policy and practice of applying for and executing ex parte seizures of real property without any evidence of exigent circumstances or necessity violates the Due Process Clause of the Fourteenth Amendment.
250. As a direct and proximate result of Defendants' actions, Plaintiffs Sourovelis, Hernandez, Welch, and the members of the putative class have suffered irreparable injury to their constitutional rights, including but not limited to being forcibly evicted from their homes and having their real property seized.
251. As a direct and proximate result of Defendants' policies and practices of seizing
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real property including homes without providing owners or residents notice or an opportunity to be heard, members of the putative class will suffer irreparable injury to their constitutional rights, including but not limited to being forcibly evicted from their homes or having their real property seized.
252. Declaratory and injunctive relief is necessary to remedy Defendants' unconstitutional conduct of seizing real property without notice or a hearing. Without appropriate declaratory and injunctive relief, Defendants' unconstitutional policies and practices will continue.
SECOND CLAIM FOR RELIEF: COMPELLING REAL PROPERTY OWNERS TO GIVE UP CONSTITUTIONAL AND
STATUTORY RIGHTS VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
253. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in ~~ 1 through 251 above.
254. After applying for and obtaining orders to seize and seal the homes of Plaintiffs Sourovelis, Hernandez, Welch, and members of the putative class on the basis of ex parte applications that deprive them of notice or an opportunity to be heard, Defendants and their agents require property owners to agree to certain conditions in order to re-enter their properties.
255. Defendants propose similar conditions as part of settlement deals. 256. Defendants have a policy and practice of compelling property owners to agree that if Defendants attempt to forfeit the property in the future, the property owner waives his or her rights to assert an innocent-owner defense under 42 Pa. Const. § 68020) or to assert a constitutional defense that forfeiture of the property would constitute an excessive fine. 257. Defendants also have a policy and practice of compelling property owners to
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agree to bar specific individuals from their property as a condition of being let back into their property after it has been seized ex parte or as a condition of withdrawing the forfeiture petition.
258. Defendants' policy and practice of compelling property owners to give up constitutional and statutory rights in order to have their homes and other real property unsealed violates the Due Process Clause of the Fourteenth Amendment because it seeks to impair the property owners' access to the courts to assert their constitutional rights.
259. Defendants' policy and practice of compelling property owners to give up constitutional and statutory rights in order to have their homes and other real property unsealed violates the Due Process Clause of the Fourteenth Amendment because it unacceptably raises the risk of an erroneous deprivation, in that it would allow Defendants to forfeit the property no matter how innocent the property owner is or how disproportionate the forfeiture would be in light of the gravity of the offense.
260. Defendants' policy and practice of requiring property owners to give up constitutional and statutory rights in order to have their homes and other real property unsealed violates the Due Process Clause of the Fourteenth Amendment because this kind of waiver does not further any compelling, substantial, or even legitimate interest of Defendants.
261. Defendants' policy and practice of compelling property owners to give up constitutional and statutory rights in order to settle the forfeiture action violates the Due Process Clause of the Fourteenth Amendment because it seeks to impair the property owners' access to the courts to assert their constitutional rights.
262. Defendants' policy and practice of compelling property owners to give up constitutional and statutory rights in order to settle the forfeiture action violates the Due Process Clause of the Fourteenth Amendment because it unacceptably raises the risk of an erroneous
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deprivation. 263. Defendants' policy and practice of requiring property owners to give up
constitutional and statutory rights in order to settle the forfeiture action violates the Due Process Clause of the Fourteenth Amendment because this kind of waiver does not further any compelling, substantial, or even legitimate interest of Defendants.
264. As a direct and proximate result of Defendants' actions, policies, and practices, Plaintiffs Sourovelis, Hernandez, Welch, and members of the putative class have suffered injury to their constitutional rights, including but not limited to their rights to free association and their right to contest future forfeiture proceedings Defendants pursue against their real properties.
265. Declaratory and injunctive relief is necessary to remedy Defendants' unconstitutional practice of forcing property owners to forego constitutional and statutory rights. Without appropriate declaratory and injunctive relief, Defendants' unconstitutional policies and practices will continue.
THIRD CLAIM FOR RELIEF: FAILURE TO PROVIDE A PROMPT, POST-DEPRIVATION HEARING VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT 266. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in ~~ 1 through 264 above. 267. After seizing or restraining property for civil-forfeiture determinations, Defendants and their agents failed to provide the Named Plaintiffs and members of the putative class with prompt hearings at which they would have been able to challenge, before a neutral arbiter, the basis for the seizure, restraint, and/or indefinite retention of their property pending the civil-forfeiture determination. 268. Defendants have a policy and practice of seizing, restraining, or indefinitely
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retaining property for civil forfeiture without providing property owners a prompt hearing at which they can challenge, before a neutral arbiter, the basis for the seizure, restraint, and/or indefinite retention of their property pending the civil-forfeiture determination.
269. Defendants' policy and practice of failing to provide prompt post-deprivation hearings violates the Due Process Clause of the Fourteenth Amendment because it fails to give property owners a chance to contest the basis for the deprivation at a meaningful time and in a meaningful manner.
270. As a direct and proximate result of Defendants' actions, policies, and practices, the Named Plaintiffs and members of the putative class have suffered irreparable injury to their constitutional rights, including but not limited to being deprived of their property without a meaningful opportunity to be heard.
271. Declaratory and injunctive relief is necessary to remedy Defendants' unconstitutional conduct of seizing, restraining, and/or retaining property without a hearing. Without appropriate declaratory and injunctive relief, Defendants' unconstitutional policies and practices will continue.
FOURTH CLAIM FOR RELIEF: REPEATEDLY "RELISTING" FORFEITURE PROCEEDINGS VIOLATES THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT 272. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in ~~ 1 through 270 above. 273. Defendants have relisted forfeiture actions against property owned by the Named Plaintiffs multiple times, requiring the Named Plaintiffs to return to Courtroom 478 for each listing in order to preserve their interest in the property, or else risk losing their property forever through default judgment.
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274. Defendants have a policy and practice ofrelisting forfeiture actions, typically on a monthly basis, forcing members of the putative class to return to Courtroom 478 for each listing in order to preserve their interest in the property, or else lose their property forever through a default judgment.
275. Upon information and belief, Defendants have a policy and practice ofrelisting forfeiture actions repeatedly until any underlying criminal case against anyone-including people other than the property's owners-is resolved rather than staying the forfeiture proceeding for the pendency of the criminal action.
276. Defendants' policy and practice ofrelisting forfeiture actions violates the Due Process Clause of the Fourteenth Amendment because it imposes a high risk of erroneous deprivation of property. The private interests affected by the "relisting" procedure outweigh Defendants' interests in maintaining the policy.
277. As a direct and proximate result of Defendants' actions, policies, and practices, the Named Plaintiffs and members of the putative class have suffered irreparable injury by the violation of their constitutional rights.
278. Declaratory and injunctive relief is necessary to remedy Defendants' unconstitutional conduct of repeatedly requiring Plaintiffs to appear for proceedings or else risk losing their property forever. Without appropriate declaratory and injunctive relief, Defendants' unconstitutional policies and practices will continue.
FIFTH CLAIM FOR RELIEF: THE RETENTION OF FORFEITED PROPERTY AND ITS PROCEEDS BY
LAW-ENFORCMENT DEFENDANTS VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT 279. Plaintiffs re-allege and incorporate by reference each and every allegation set
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forth in '1['1[1 through 277 above. 280. The Law-Enforcement Defendants' policy and practice of retaining forfeited
property and its proceeds injects a personal and institutional interest, financial and otherwise, into enforcing civil forfeiture that brings irrelevant and impermissible factors into the investigative and prosecutorial decision-making process and thereby creates actual bias, the potential for bias, and/or the appearance of bias.
281. The Philadelphia D.A.'s Office-the very agency charged with prosecuting civilforfeiture actions-has a direct financial incentive in the outcome of forfeiture proceedings because of the prospect of both economic profit through salaries as well as institutional gain through more and better law-enforcement equipment.
282. D.A. Seth Williams-the very official charged with prosecuting civil-forfeiture actions-has a direct financial incentive in the outcome of forfeiture proceedings because of the prospect of both economic profit through salaries as well as institutional gain through more and better law-enforcement equipment.
283. The Philadelphia D.A.'s Office has shared its forfeiture revenue with the Philadelphia Police Department. Upon information and belief, this practice continues.
284. Police Commissioner Ramsey-the very official charged with enforcing civilforfeiture laws on behalf of the Philadelphia Police Department-has a direct financial incentive in seizing property for civil forfeiture due to, upon information and belief, the prospect of both economic profit through salaries as well as institutional gain through more and better lawenforcement equipment.
285. The direct financial stake that these Law-Enforcement Defendants have in the seizure and retention of property for forfeiture poses a conflict of interest, the potential for bias,
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and the appearance of bias that violate Plaintiffs' rights to the fair and impartial administration of justice guaranteed by the Due Process Clause ofthe Fourteenth Amendment.
286. As a direct and proximate cause of the Law-Enforcement Defendants' actions, policies, and practices, Plaintiffs have suffered irreparable injury to their constitutional rights, including but not limited to the unjust taking of their property.
287. Declaratory and injunctive relief is necessary to remedy the Law-Enforcement Defendants' conflict of interest. Without appropriate declaratory and injunctive relief, the LawEnforcement Defendants' unconstitutional policies and practices will continue.
SIXTH CLAIM FOR RELIEF: DEFENDANTS' POLICY AND PRACTICE OF PROSECUTORS CONTROLLING COURTROOM 478 "HEARINGS" VIOLATES THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT 288. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in ~~ 1 through 286 above. 289. Defendants have a policy and practice of having prosecutors run the forfeiture proceedings in Courtroom 478, including but not limited to calling the cases, determining whether property owners are in default, and assessing whether any evidence produced by property owners is sufficient. 290. These prosecutors, who are assistant district attorneys in the Public Nuisance Task Force of the Philadelphia D.A.'s Office, have a direct and institutional financial interest in the outcome of the forfeiture proceedings. 291. Defendants' policy and practice ofhaving prosecutors, with a direct and institutional financial interest in the outcome of the forfeiture proceedings, run those very same forfeiture proceedings, violates the Due Process Clause of the Fourteenth Amendment.
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292. As a direct and proximate result of Defendants' actions, policies, and practices, the Named Plaintiffs and members of the putative class have suffered irreparable injury to their constitutio!Jal rights.
293. Declaratory and injunctive relief is necessary to correct Defendants' unconstitutional conduct of having those with a financial interest in the outcome of the proceedings run those proceedings. Without appropriate declaratory and injunctive relief, Defendants' unconstitutional policies and practices will continue for the foreseeable future.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request, on behalf of themselves and all others similarly situated, this Court: 1. For an order certifying this action as a class action under Federal Rule of Civil Procedure 23(b)(2); 2. For entry ofjudgment declaring as unconstitutional under the Due Process Clause of the Fourteenth Amendment:
a. Defendants' policy and practice of applying for and executing ex parte orders to seize real property without any evidence of exigent circumstances or necessity; b. Defendants' policy and practice oftreating the presence of drugs in real property alone as exigent circumstances; c. Defendants' policy and practice of requiring real property owners to waive their future statutory and constitutional defenses as a condition of having their properties unsealed or having the forfeiture petition withdrawn; d. Defendants' policy and practice of failing to provide prompt, post-
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Case 2:14-cv-04687-ER Document 40 Filed 11/17/14 Page 56 of 59

deprivation hearings to individuals whose property has been seized, restrained

and/or indefinitely retained;

e. Defendants' policy and practice of "relisting" forfeiture actions and

requiring property owners to make monthly court appearances, or else risk losing

their property forever through default judgments;

f.

Law-Enforcement Defendants' policy and practice of retaining all

forfeited property and its proceeds; and

g. Defendants' policy and practice of having prosecutors, with a direct

financial interest in the outcome of civil-forfeiture proceedings, control the civil-

forfeiture "hearings" in Courtroom 478;

3. For an entry ofjudgment declaring that the City of Philadelphia and the

Philadelphia District Attorney's Office is liable for the above-described unconstitutional policies

and practices. 4. For entry of preliminary and permanent injunctions against Defendants

prohibiting them from engaging in the above-described policies and practices.

5. For an entry ofjudgment declaring the following statutory provisions

unconstitutional:

a. 42 Pa. Const. Stat. § 6802(f) and (g) are unconstitutional as applied to real

property to the extent these provisions authorize ex parte seizure of real

property, without notice or a pre-deprivation opportunity to contest the

seizure;

b. 42 Pa. Const. Stat. § 6801(b) is unconstitutional as applied to the extent it

allows the seizure of real property without fair judicial process;

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Case 2:14-cv-04687-ER Document 40 Filed 11/17/14 Page 57 of 59

c.

42 Pa. Const. Stat. §§ 6801 and 6802 are unconstitutional as applied to the

extent these provisions fail to provide for a prompt post-deprivation hearing for

any property;

d. 42 Pa. Const. Stat. § 6801(e)-(h) are unconstitutional as applied to the

extent they create a conflict of interest that denies individuals the fair and

impartial administration ofjustice.

6. For an entry ofjudgment requiring Defendants to:

a. dismiss all civil-forfeiture proceedings against property owned by the Named

Plaintiffs and class members;

b. return all property seized from the Named Plaintiffs and class members;

c. remove all restraints imposed against the Named Plaintiffs' and class

members' real property as a consequence of the forfeiture petition, including

but not limited to any lis pendens notices;

7. For an award of$1.00 in nominal damages for each ofthe six claims for relief.

Plaintiffs seek this award for the class as a whole and do not request nominal damages for each

class member; 8. For an award of attorney's fees, costs, and expenses in this action pursuant to 42

U.S.C. § 1988(b); and 9. For further legal and equitable relief as this Court may deem just and proper.

Dated:

November 17, 2014

Respectfully submitted,

By: David Rudovsky
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Case 2:14-cv-04687-ER Document 40 Filed 11/17/14 Page 58 of 59

INSTITUTE FOR JUSTICE
William H. Mellor* Scott G. Bullock* Darpana M. Sheth* Robert P. Frommer* 901 N. Glebe Road, Suite 900 Arlington, VA 22203 Tel: (703) 682-9320 Fax: (703) 682-9321 E-mail: wmellor@ij.org; sbullock@ij.org; dsheth@ij .org; rfrommer@ij .org
*Admitted pro hac vice

KAIRYS, RUDOVSKY, MESSING & FEINBERG
LLP
David Rudovsky I.D. Number 15168 The Cast Iron Building 718 Arch Street, Suite 501 South Philadelphia, PA 19106 Tel: (215) 925-4400 Email: drudovsky@krlawphila.com

-58-

Case 2:14-cv-04687-ER Document 40 Filed 11/17/14 Page 59 of 59
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 17th day ofNovember, 2014, a true and correct copy of this FIRST AMENDED COMPLAINT was served upon the following counsel of record by U.S. Mail to: Dimitrios Mavroudis City of Philadelphia Law Department 1515 Arch Street, 14th Floor Philadelphia, PA 19102 Tel: (215) 683-5444 Email: dimitrios.mavroudis@phila.gov Attorney for Defendants City ofPhiladelphia, Mayor Michael A. Nutter, and Police Commissioner Charles H Ramsey
Elizabeth J. Rubin Bryan Hughes Office of the District Attorney Three South Penn Square Philadelphia, PA 191 07 Tel: (215) 686-8787 Email: bj .graham-rubin@phila.gov Attorney for Defendants Philadelphia District Attorney's Office and District Attorney R. Seth Williams
W~R~
David Rudovsky Attorney for Plaintiffs
-59-

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOS SOUROVELIS, et al., Plaintiffs,
v. CITY OF PHILADELPHIA, et al.,
Defendants.

: CIVIL ACTION : No. 14-4687 : : : : : : :

M E M O R A N D U M EDUARDO C. ROBRENO, J.

May 12, 2015

Table of Contents
BACKGROUND AND PROCEDURAL HISTORY . . . . . . . . . . . . . . 2 LEGAL STANDARD. . . . . . . . . . . . . . . . . . . . . . . . 6 DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. Voluntary Cessation, Mootness, and Standing . . . . 9 1. Defendants’ Voluntary Cessation. . . . . . . . 10 2. Voluntary Dismissal of Forfeiture Actions. . . 14 3. Traceability to Defendants’ Conduct. . . . . . 18 a. Defendants’ “Seize and Seal” Policy . . . 19 b. Defendants’ Proceedings in Courtroom 478. 21
B. Younger Abstention. . . . . . . . . . . . . . . . . 24 C. The Complaint States Claims Under Rule 12(b)(6) . . 25
1. Count Two. . . . . . . . . . . . . . . . . . . 25 2. Count Three. . . . . . . . . . . . . . . . . . 28 3. Count Four . . . . . . . . . . . . . . . . . . 30 4. Count Five . . . . . . . . . . . . . . . . . . 31 5. Count Six. . . . . . . . . . . . . . . . . . . 32 D. The D.A.’s Office is a Proper Party . . . . . . . . 33 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 39

Named Plaintiffs Christos Sourovelis, Doila Welch, Norys Hernandez, and Nassir Geiger (“Plaintiffs”), on behalf of themselves and all others similarly situated under Federal Rule of Civil Procedure 23(b)(2), bring this class action to enjoin

and declare unconstitutional Philadelphia’s civil-forfeiture policies and practices.
This suit is brought against the City of Philadelphia, Mayor Michael A. Nutter, Police Commissioner Charles H. Ramsey (together, “City Defendants”), the Philadelphia District Attorney’s Office (“D.A.’s Office”), and District Attorney R. Seth Williams (together, “D.A. Defendants”) (all together, “Defendants”). Defendants have filed a joint motion to dismiss Plaintiffs’ claims. For the reasons that follow, the Court will deny Defendants’ motion to dismiss.
I. BACKGROUND AND PROCEDURAL HISTORY On November 17, 2014, Plaintiffs filed their Amended
Complaint. ECF No. 40. Named Plaintiffs Sourovelis, Welch, and Hernandez are the owners of real property against which forfeiture proceedings commenced by the D.A. Defendants under the Controlled Substances Forfeiture Act (“Forfeiture Act”), 42 Pa. C.S. §§ 6801-6802, were pending in the Court of Common Pleas of Philadelphia County (“Court of Common Pleas”) at the time the Amended Complaint was filed. Am Compl. ¶¶ 9-14. Plaintiff Geiger, who was first named in the Amended Complaint, is the owner of a 2000 Buick LeSabre, against which a proceeding under
2

the Forfeiture Act is presently pending in the Court of Common Pleas. See id. ¶ 15.
In their Amended Complaint, Plaintiffs allege that Defendants have been unconstitutionally employing civil forfeiture procedures to confiscate property from residents for the properties’ alleged involvement in crime--even when property owners have no involvement in or even knowledge of the crimes alleged. Id. ¶ 2. Plaintiffs state that Philadelphia’s “roboforfeiture” program uses “form” legal documents and “endless proceedings” to generate millions of dollars in revenue outside of its appropriated budget. Id. ¶ 3. Plaintiffs allege that through these boilerplate allegations, officials execute ex parte “seize and seal” orders against homes and other real property, without providing constitutionally adequate procedures for citizens to challenge the orders--thus violating their due process rights. See id. ¶ 21. Accordingly, Plaintiffs’ six claims challenge the following “policies and practices”:
(i) Defendants’ policy and practice of applying for and executing ex parte seizures of homes and other real properties without providing any evidence of exigent circumstances or necessity to justify proceeding without affording affected owners notice or an opportunity to be heard; (ii) Defendants’ policy and practice of requiring real property owners to waive their statutory and constitutional rights in order to be let back into
3

their property or have the forfeiture petition withdrawn;
(iii) Defendants’ policy and practice of failing to provide property owners with a prompt, postdeprivation hearing before a neutral arbiter where those owners may contest the basis for the seizure, restraint, or indefinite retention of their property pending an ultimate hearing on the merits;
(iv) Defendants’ policy and practice of repeatedly “relisting” civil-forfeiture proceedings, which forces property owners to appear in person for these proceedings over and over again or else permanently lose their property through a default judgment;
(v) The policy and practice of retaining forfeited property and its proceeds for use by the Philadelphia District Attorney’s Office and the Philadelphia Police Department; and
(vi) Defendants’ policy and practice of having prosecutors and employees of the Philadelphia District Attorney’s Office control “hearings” in Courtroom 478.
Id. ¶ 4.
Defendants filed a joint motion to dismiss Plaintiffs’
Amended Complaint on March 16, 2015, arguing that Plaintiffs’
claims should be dismissed on the following grounds:
(1) Because the underlying forfeiture proceedings against the real property owned by Plaintiffs Sourovelis and Welch have been discontinued, the claims of these plaintiffs have been rendered moot and must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1).
(2) Because, since on or about September 22, 2014, the D.A. Defendants have not submitted an application for an ex parte “seize and seal” order, which is the source of the constitutional violations alleged in the first and second counts of the amended complaint, and
4

a policy established by the District Attorney on October 1, 2014, ensures that subsequent applications will be warranted by exigent circumstances, a case or controversy is not presented as to the first and second counts of the amended complaint, which must be dismissed pursuant to Rule 12(b)(1).
(3) Because Plaintiffs cannot demonstrate an “injury in fact” that is “fairly traceable” to the conduct alleged in counts one, three, and six of the amended complaint that will likely be remedied by the requested relief, they lack Article III standing to bring these claims, which must be dismissed pursuant to Rule 12(b)(1).
(4) Insofar as the named plaintiffs are the owners of property against which civil forfeiture petitions are presently pending in the Court of Common Pleas, their constitutional claims could be raised in their state court forfeiture proceedings and this court should abstain from deciding them in this case.
(5) Because Defendant Philadelphia District Attorney’s Office is not an entity amenable to suit under 42 U.S.C. § 1983, this defendant must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).
(6) Because the amended complaint fails to state a claim upon which relief may be granted as to Plaintiff Geiger, the claims of this plaintiff must be dismissed pursuant to Rule 12(b)(6).
(7) Because the second, fourth, fifth, and sixth counts of the amended complaint fail to state claims upon which relief may be granted, those claims must be dismissed pursuant to Rule 12(b)(6).
Defs.’ Mem. 3-4, ECF No. 52. Plaintiffs filed a response on April
3, 2015 (ECF No. 55), and Defendants filed a reply1 on April 13,
2015 (ECF No. 56). The motion is now ripe for disposition.

1

More specifically, Defendants filed a joint motion for

leave to file a reply brief, which the Court will grant.

5

II. LEGAL STANDARD
A party may move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering such a motion, a court must “accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” DeBenedictis v. Merrill Lynch & Co., 492 F.3d 209, 215 (3d Cir. 2007) (internal quotation marks omitted). To withstand a motion to dismiss, the complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. Although a plaintiff is entitled to all reasonable inferences from the facts alleged, a plaintiff’s legal conclusions are not entitled to deference and the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986) (cited with approval in Twombly, 550 U.S. at 555).
The pleadings must contain sufficient factual allegations so as to state a facially plausible claim for
6

relief. See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation marks omitted). In deciding a Rule 12(b)(6) motion, the Court limits its inquiry to the facts alleged in the complaint and its attachments, matters of public record, and undisputedly authentic documents if the complainant’s claims are based upon these documents. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
As is relevant here, “[i]f a claim does not present a live case or controversy, the claim is moot, and a federal court lacks jurisdiction to hear it.” United States v. Virgin Islands, 363 F.3d 276, 285 (3d Cir. 2004). A challenge for mootness is properly brought by a Rule 12(b)(1) motion, and constitutes a factual attack on the jurisdictional facts; thus, the court may consider evidence outside the pleadings. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176-77 (3d Cir. 2000). “[T]he standard for surviving a Rule 12(b)(1) motion is lower than that
7

for a Rule 12(b)(6) motion,” however, and “[a] claim may be dismissed under Rule 12(b)(1) only if it ‘clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction’ or is ‘wholly insubstantial and frivolous.’” Id. at 178 (quoting Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
“A motion to dismiss for want of standing is also properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter.” Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007). “In evaluating whether a complaint adequately pleads the elements of standing,” however, “courts apply the standard of reviewing a complaint pursuant to a Rule 12(b)(6) motion to dismiss for failure to state a claim: ‘Court[s] must accept as true all material allegations set forth in the complaint, and must construe those facts in favor of the nonmoving party.’” In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012) (alteration in original) (quoting Ballentine, 486 F.3d at 810).
III. DISCUSSION
The Court will first address Defendants’ factual challenges to the Court’s jurisdiction over four of Plaintiffs’ six claims and over claims of named Plaintiffs Sourovelis and
8

Welch on the grounds of voluntary cessation, mootness, and standing. Next, the Court will address Defendants’ argument that this Court should abstain from exercising its jurisdiction over Plaintiffs’ claims under Younger v. Harris, 401 U.S. 37 (1971). The Court will then address Defendants’ arguments that Plaintiffs fail to state claims under Rule 12(b)(6). Finally, the Court will discuss whether the D.A.’s Office is a proper party to this constitutional challenge under § 1983.
A. Voluntary Cessation, Mootness, and Standing Defendants assert that because the D.A.’s Office has
recently changed its “seize and seal” order practice, Plaintiffs’ first two claims (challenging Defendants’ “seize and seal” policy and practice of imposing unconstitutional conditions) are moot. Defs.’ Mem. 10–14. Defendants also argue that the voluntary dismissal of state forfeiture actions against homes owned by Sourovelis and Welch--after this lawsuit was filed--has mooted those Plaintiffs’ claims. Id. at 6–10. Additionally, Defendants contend that Plaintiffs’ first, third, and sixth counts are not “fairly traceable” to Defendants’ conduct, but instead are caused by the state court system, and therefore must be dismissed for lack of standing. Id. at 14–17. The Court disagrees.
9

1. Defendants’ Voluntary Cessation Defendants assert that “[t]he D.A. Defendants have not applied for an ex parte ‘seize and seal’ order since on or about September 22, 2014.” Id. at 12. Moreover, “[o]n October 1, [2014,] . . . the District Attorney implemented a policy ensuring that any future application for an ex parte ‘seize and seal’ order comports with the requirements of James Daniel Good Real Property2,” id.--in that “approval by the First Assistant District Attorney, or his or her designee” is required, and “such approval may be given only where ‘exigent circumstances’ are presented, as that term is defined in James Daniel Good Real Property.” Id. 13–14. Thus, Defendants argue, Plaintiffs’ first and second claims are moot. Plaintiffs correctly contend, however, that these purported changes to Defendants’ procedures--enacted only after litigation ensued--do not moot said claims. See Knox v. Serv. Employees Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012) (noting that post-litigation “maneuvers” that may be “designed

2

In United States v. James Daniel Good Real Property,

the Supreme Court held that “[u]nless exigent circumstances are

present, the Due Process Clause requires the Government to

afford notice and a meaningful opportunity to be heard before

seizing real property subject to civil forfeiture.” 510 U.S. 43,

62 (1993).

10

to insulate a decision from review . . . must be viewed with a critical eye”). As was recently emphasized by the Supreme Court,
[A] defendant cannot automatically moot a case simply by ending its unlawful conduct once sued. Otherwise, a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends. Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013) (citation omitted) (citing City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982) (“It is well settled that 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.”)). Accordingly, the Supreme Court has held that “a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (citing United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968)). As discussed below, Defendants fail to meet this stringent test. See City of Mesquite, 455 U.S. at 289 n.10.
Defendants point to the declaration of First Assistant District Attorney (“ADA”) Edward F. McCann, Jr., in the attempt to substantiate the definitive nature of these policy changes.
11

However, this declaration emphatically denies that it has ever had any unconstitutional policy or practice, and it essentially indicates that it will continue to require the demonstration of “exigent circumstances” as defined by James Daniel Good Real Property--albeit with an added layer of required approval. Defs.’ Mem. Ex. C, McCann Decl. ¶¶ 3, 6. But if the D.A.’s Office charted a course that may have run afoul of due process rights before--as Plaintiffs allege that it has3--then a directive to essentially stay the course cannot, of itself, ensure that the D.A.’s Office will not run aground on rocky constitutional shoals again.
What’s more, nothing in the McCann declaration makes this policy permanently binding on future district attorneys.

3

In this vein, Plaintiffs’ response to Defendants’

motion to dismiss reads as follows:

As illustrated by Plaintiff Sourovelis’s experience, it has been the Philadelphia D.A.’s practice to treat simple possession or the single sale of a controlled substance as exigent circumstances, justifying ex parte seizure-—in direct contravention of James Daniel Good and its progeny. (Am. Compl. ¶ 246; Sourovelis Decl. ¶¶ 4,7.) Since the Philadelphia D.A.’s Office claims there is nothing impermissible in its past practices, the so-called “new” policy is hardly a definitive or permanent change, as opposed to a possible gloss on past practices. After all, how can Defendants [] remedy a problem they claim never existed?

Pls.’ Resp. 18-19.

12

Conceivably, these procedures could be changed or revoked just as easily as the two-page declaration was drafted--rendering this policy no more than a parchment barrier. Cf. City of Mesquite, 455 U.S. at 289 (holding that “the city’s repeal of the objectionable language would not preclude it from reenacting precisely the same provision”). Ultimately, this declaration fails to provide the kind of “unconditional and irrevocable” promise found sufficient to moot a claim. See Already, LLC, 133 S. Ct. at 728.
With respect to Plaintiffs’ second claim, the McCann declaration does not address Plaintiffs’ challenge to the alleged unconstitutional conditions imposed in settlement agreements and agreements to vacate “seize and seal” orders. Defendants’ allegedly changed policies and practices make no guarantees as to these settlement arrangements, and accordingly, this second claim is not moot.
Finally, regardless of Defendants’ ostensibly altered procedures, named Plaintiffs Sourovelis, Welch, and Hernandez are also entitled to seek nominal damages and a declaration that Defendants’ “seize and seal” policy and practice of imposing unconstitutional conditions violated their rights to due process. See Houchins v. KQED, Inc., 438 U.S. 1, 25–26 (1978)
13

(“[A] defendant’s corrective action . . . following commencement of suit does not deprive the court of power to decide whether the previous course of conduct was unlawful.”); see, e.g., Burns v. Pa. Dep’t of Corr., 544 F.3d 279, 283-84 (3d Cir. 2008) (holding that although the Department of Corrections “promise[d] to refrain from the future seizure of funds from [an inmate’s] account,” “[a] completed violation, if proven, would entitle [the plaintiff] to at least an award of nominal damages”).
Thus, Plaintiffs’ first and second claims are not mooted by Defendants’ voluntary cessation. See Knox, 132 S. Ct. at 2287 (“A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” (internal quotation marks omitted)).
2. Voluntary Dismissal of Forfeiture Actions Defendants also argue that “[b]ecause the state court forfeiture proceedings against Plaintiffs Sourovelis and Welch have been discontinued . . . [t]heir claims are now moot and must be dismissed.” Defs.’ Mem. 6. Defendants assert that “[d]ismissal of a class action complaint is required . . . when the named plaintiffs’ claims are rendered moot prior to class certification if ‘there is no plaintiff (either named or unnamed) who can assert a justiciable claim against any defendant and
14

consequently there is no longer a “case or controversy” within the meaning of Article III of the Constitution.’” Defs.’ Mem. 78 (quoting Lusardi v. Xerox Corp., 975 F.2d 964, 974-75 (3d Cir. 1992)) (citing Brown v. Phila. Hous. Auth., 350 F.3d 338, 343 (3d Cir. 2003)). Defendants conclude that, because “a case or controversy is no longer presented as to the claims of Mr. Sourovelis and Ms. Welch by virtue of the December 18, 2014, orders of the Court of Common Pleas . . . discontinu[ing] . . . the underlying forfeiture proceedings,” said claims must be dismissed. Id. at 9-10. But Defendants are mistaken.
To begin with, regardless of the discontinuance of the forfeiture proceedings, Plaintiffs Sourovelis and Welch may still properly continue to seek class certification and request prospective injunctive relief on behalf of the proposed class. In United States Parole Commission v. Geraghty, the Supreme Court held that “an action brought on behalf of a class does not become moot upon expiration of the named plaintiff’s substantive claim, even though class certification has been denied.” 445 U.S. 388, 404 (1980); see also Wilkerson v. Bowen, 828 F.2d 117, 121 (3d Cir. 1987) (applying Geraghty to circumstances where named plaintiffs’ claims expired while a class certification
15

motion was pending).4 The Geraghty Court also discussed the relevance of the exception to mootness for inherently transitory claims. 445 U.S. at 399.
Plaintiffs aptly argue that “[a]s in Geraghty . . . Plaintiffs’ claims are inherently transitory. Every day the D.A.’s Office brings forfeiture actions which then cycle through Courtroom 478 [of the Philadelphia Court of Common Pleas] where most of these actions are resolved through default judgment or settlement.” Pls.’ Resp. 23. According to Plaintiffs, “[u]nder these circumstances[,] when any plaintiff will not be in the challenged system throughout the federal litigation, courts have applied the inherently transitory exception, particularly in the

4

The cases Defendants cite are distinguishable, as the

complaints or motions for class certification were filed after

the named plaintiffs’ claims expired. See Brown, 350 F.3d at 343

(plaintiffs’ claim was moot “at the time the Complaint was

filed,” and thus, “subject matter jurisdiction was also lacking

in the District Court”); Lusardi, 975 F.2d at 982, 983 (noting

that “district court review of a pending certification motion

relates back to its filing, if plaintiff had a live claim at

that time,” and that “[n]o motion to certify was pending at the

time plaintiffs’ claims were settled”).

Moreover, Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013)--a Fair Labor Standards Act (“FLSA”) case cited at length by Defendants--did not center on Rule 23 class jurisprudence, but instead on the FLSA provision permitting an action on behalf of an individual and “other employees similarly situated.” Id. at 1529 (quoting 29 U.S.C. § 216(b)). The Court stressed that cases like Geraghty were “inapposite” because “Rule 23 actions are fundamentally different from collective actions under the FLSA.” Id.

16

class-action context, to allow plaintiffs to continue to litigate their claims.” Id. at 24 (citing Geraghty, 445 U.S. at 399). And Defendants do not dispute these assertions in their reply to Plaintiffs’ response.
District courts in the Third Circuit have relied on Geraghty and Wilkerson to permit named plaintiffs to continue to litigate on behalf of a class even though their own claims for prospective injunctive relief became moot before a class was certified. See, e.g., Williams v. City of Philadelphia, 270 F.R.D. 208, 220 (E.D. Pa. 2010) (noting that because Wilkerson controlled, it was not necessary to rule on the issue of dismissing the named plaintiffs, as it could create a “black hole . . . to constantly add new named plaintiffs or file new class-action complaints when previous named plaintiffs’ claims are resolved” (internal quotation marks and citation omitted)); Brist v. Cnty. of Delaware, No. 94-1426, 1995 WL 50954, at *6 (E.D. Pa. Feb. 7, 1995) (permitting named plaintiff with a precertification mooted claim for damages and injunctive relief to continue representing the class).
Here, Plaintiffs filed their motion for class certification roughly four months before the D.A.’s Office dismissed the forfeiture actions of Plaintiffs Sourovelis and
17

Welch in December 2014. ECF No. 3. Consequently, dismissal of Plaintiffs Sourovelis and Welch’s claims is not warranted.
And finally, as was discussed supra p. 9, Plaintiffs Sourovelis and Welch may also request nominal damages and declaratory relief based on the violation of their due-process rights, as nominal damages are properly awarded for violations of procedural due process. See Carey v. Piphus, 435 U.S. 247, 266 (1978) (“By making the deprivation of such rights actionable for nominal damages . . . the law recognizes the importance to organized society that those rights be scrupulously observed.”).
3. Traceability to Defendants’ Conduct Defendants next assert that Plaintiffs lack standing to raise their first, third, and sixth claims (which challenge, respectively, Defendants’ “seize and seal” policy, the lack of a prompt post-deprivation hearing, and the practice of the D.A.’s Office running Courtroom 478), because the injuries recited in those claims are not traceable to Defendants’ conduct--but instead are attributable to the actions of the Court of Common Pleas and the Pennsylvania court administration. Defs.’ Mem. 14– 17. The Court is not persuaded.
18

a. Defendants’ “Seize and Seal” Policy Defendants contend that the actual cause of the Plaintiffs’ injuries under their challenge to Defendants’ “seize and seal” policy is “not from the D.A. Defendants applying for such relief, but from the state court granting it.” Defs.’ Mem. 14. Defendants argue that, because Plaintiffs’ injuries are not “fairly traceable to the challenged action of the [Defendants]” and are “the result of the independent action of some third party not before the court,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and alterations omitted), Plaintiffs lack standing to raise their first claim. Plaintiffs are not challenging the final judicial stamp of approval on the “seize and seal” orders, however, but the “bald, conclusory allegation[s]” found in the orders that fail to provide any “particularized showing of exigent circumstances.” Am. Compl. ¶¶ 84–86. Plaintiffs further assert that it has been the policy and practice of the D.A.’s Office to claim exigency when the facts showed only “mere possession or the single sale of [a] controlled substance[].” Id. ¶ 246. Plaintiffs have sufficiently pled a traceable injury, and Defendants’ argument that the state court’s granting of the
19

application breaks the causal chain is not persuasive. As stated
by the Supreme Court in Malley v. Briggs,
the . . . “no causation” rationale in this case is inconsistent with our interpretation of § 1983. As we stated in Monroe v. Pape, 365 U.S. 167, 187 (1961), § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Since the common law recognized the causal link between the submission of a complaint and an ensuing arrest, we read § 1983 as recognizing the same causal link. 475 U.S. 335, 344 n.7 (1986) (parallel citation omitted).
Although the specific facts of Malley concerned the
immunity afforded a police officer whose request for a warrant
allegedly caused an unconstitutional arrest, the Court’s
rejection of this “no causation” argument applies with equal
force to the case at bar. The fact that state court judges have
approved these ex parte “seize and seal” applications does not
break the causal chain. Indeed, Plaintiffs allege that the
D.A.’s Office has had a policy and practice of claiming exigent
circumstances when none were present--for instance, in
“treat[ing] mere possession or the single sale of controlled
substances in a particular real property as exigent circumstances
warranting ex parte seizure.” Am. Compl. ¶ 246. Viewing the
factual allegations in the light most favorable to the nonmoving
Plaintiffs, Plaintiffs have shown injury traceable to Defendants’
actions, and Defendants have failed to shift responsibility for
20

the execution of its policies and practices onto the shoulders of state judicial officials and administrators.
b. Defendants’ Proceedings in Courtroom 478 Defendants make similar traceability arguments as to their role in Plaintiffs’ third and sixth claims (challenging, respectively, the lack of a prompt post-deprivation hearing, and the practice of the D.A.’s Office running Courtroom 478), asserting that proceedings in Courtroom 478 are “attributable to court administration, and not to the D.A. Defendants.” Defs.’ Mem. 16. Plaintiffs, too, echo their earlier argument, contending that “the facts contradict Defendants’ characterization that it is the state court system, rather than the Philadelphia D.A.’s Office, that runs Courtroom 478.” Pls.’ Resp. 30. Plaintiffs point to a number of different federal courts that have ruled on similar claims without requiring plaintiffs to sue judicial officers or the court system. See Pls.’ Resp. 30 (citing Smith v. City of Chicago, 524 F.3d 834, 835 (7th Cir. 2008) (permitting a suit against the City of Chicago, superintendent of police department, and state’s attorney addressing entitlement to “prompt, postseizure, probable cause hearing”), vacated as moot sub nom. Alvarez v. Smith, 558 U.S. 87 (2009); Krimstock v. Kelly, 306 F.3d 40, 43
21

n.1, 45 (2d Cir. 2002) (permitting a suit against Commissioner of the New York City Police Department, Property Clerk of the New York City Police Department, and City of New York considering lack of “prompt post-seizure hearing”); Simms v. District of Columbia, 872 F. Supp. 2d 90, 95 (D.D.C. 2012) (permitting a suit against the District of Columbia, chief of police, and mayor “considering what post-seizure process is required”).
Defendants attempt to distinguish these cases by arguing that “[i]n none of those cases, however, was the practice at issue directly attributable to court administration, as is the case in Philadelphia.” Defs.’ Reply Br. 13. In support, Defendants point to the notice5 of hearing--bearing the heading of the Court of Common Pleas--which property owners receive as to when they must appear in Courtroom 478. Id. at 14– 15. Defendants also proffer the declaration of ADA Beth Grossman, which essentially explains that no court reporter or “Quarter-Sessions clerk” has assigned to said proceedings6 “[b]ecause [judicial] resources have been withheld”--and thus

5

Plaintiffs point out that, “[w]hile these notices

nominally bear the heading of the Court of Common Pleas[,] . . .

in practice prosecutors and paralegals of the D.A.’s Office fill

out this notice by hand after talking with property owners. See

Am. Compl. ¶ 109.” Pls.’ Resp. 31.

6

Not to mention the fact that no judges preside over

the proceedings in Courtroom 478. See Am. Compl. ¶ 99.

22

“prosecutors in Courtroom 478 have been forced to [] assume roles traditionally held by court personnel.” Defs.’ Reply Br. Ex. A, Grossman Decl. ¶¶ 3, 7.
The facts in the Amended Complaint clearly and plausibly allege that it is the Task Force of the D.A.’s Office that runs Courtroom 478. Am. Compl. ¶¶ 99-109. Defendants’ assertion that it is “[s]elf-evident[]” that “the D.A. Defendants do not control the allocation of judicial resources in the Court of Common Pleas,” Defs.’ Mem. 16, does not insulate the D.A. Defendants from scrutiny into how they use the resources they have been given, and into the constitutional adequacy of the proceedings they administer with those resources.
Further, the focus of Plaintiffs’ third and sixth claims is not on the logistics of Courtroom 478, but instead on what prosecutors and other employees of the D.A.’s Office do in that room. Plaintiffs’ factual allegations clearly claim that the D.A.’s Office exercises complete control over the proceedings in Courtroom 478: the ADAs call the forfeiture cases; mark cases for default judgment; explain the forfeiture process to property owners; dictate settlement conditions and conditions to vacate “seize and seal” orders; relist cases for subsequent hearings; and determine whether property owners must
23

return with additional information or documentation. Am. Compl. ¶¶ 101–09.
The funding laments laced through ADA Grossman’s declaration--that because of such constraints, “prosecutors in Courtroom 478 have been forced to [] assume roles traditionally held by court personnel”--essentially admit to the due process infirmities that may exist in the proceedings they administer. Accordingly, this Court, like other federal courts that have addressed this issue, has subject matter jurisdiction to hear Plaintiffs’ third claim challenging the failure to provide a prompt post-deprivation hearing and Plaintiffs’ sixth claim on prosecutorial bias in Courtroom 478 proceedings.
B. Younger Abstention It is well settled that federal courts have a
“virtually unflagging obligation . . . to exercise the jurisdiction given them.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). Thus, “[t]he doctrine of abstention . . . is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in . . . exceptional circumstances.” Id. at 813.
24

Nevertheless, Defendants urge this Court to abstain under Younger v. Harris, 401 U.S. 37 (1971), due to the pendency of forfeiture proceedings in state court. Defs.’ Mem. 18–23. However, Defendants’ argument is unavailing because, as Defendants have admitted, named Plaintiffs Sourovelis and Welch no longer have pending forfeiture actions, id. at 5, 20, and therefore there is no ongoing state proceeding for the Court to abstain in favor of. Defendants do not dispute this state of affairs in their reply to Plaintiffs’ response. Accordingly, this claim must fail.
C. The Complaint States Claims Under Rule 12(b)(6) Defendants further assert that the second, third,7
fourth, fifth, and sixth counts of Plaintiffs’ Amended Complaint fail to state claims upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6). The Court disagrees.
1. Count Two Plaintiffs’ second claim alleges that Defendants require property owners to surrender constitutional rights in order to either have their homes or other real property unsealed or to settle or dismiss the forfeiture petitions against their property. Am. Compl. ¶¶ 254–65. Pursuant to the unconstitutional

7

As to named Plaintiff Geiger only.

25

conditions doctrine, “the government may not deny a benefit to a person because he exercises a constitutional right.” Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2594 (2013) (internal quotation marks omitted); see also Koslow v. Pennsylvania, 302 F.3d 161, 174 (3d Cir. 2002) (“The unconstitutional conditions doctrine is based on the proposition that government incentives may be inherently coercive.” (internal quotation marks omitted)). The Supreme Court has invoked this doctrine with respect to various kinds of government action, beyond discretionary government benefits alone. See, e.g., Camara v. Mun. Court, 387 U.S. 523, 540 (1967) (“[A]ppellant had a constitutional right to insist that the inspectors obtain a warrant to search and that appellant may not constitutionally be convicted for refusing to consent to the inspection.”).
Plaintiffs plausibly plead that Defendants impose excessively coercive and unconstitutional conditions--for instance, requiring that property owners prospectively waive the right to assert constitutional defenses in future actions, and indefinitely barring individuals, such as relatives, from entering property. Am. Compl. ¶¶ 254–65. Although Defendants
26

claim8 that “no constitutional concern would seem to be implicated” by the challenged conditions in settlement agreements, Defs.’ Mem. 12 n.6, Defendants are incorrect--at least as to the fact that restricting access by relatives may implicate constitutional issues. See Moore v. City ofco E. Cleveland, 431 U.S. 494, 504 (1977) (“The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.”). Viewing the factual allegations in the light most favorable to the nonmoving Plaintiffs, the Plaintiffs have sufficiently pled an unconstitutional conditions claim alleging excessively coercive settlement and unsealing arrangements. See Frost v. R.R. Comm’n of Cal., 271 U.S. 583, 593 (1926) (“In reality, the carrier is given no choice, except a choice between the rock and the whirlpool--an option to forego a privilege which may be vital to his livelihood or submit to a requirement which may constitute an intolerable burden.”).

8

Defendants also assert that this claim is

“duplicative” of Plaintiffs’ first claim. Defs.’ Mem. 29.

Defendants are mistaken, however, as this second claim

challenges both a practice that occurs after the “seize and

seal” of real property, as well as the conditions offered in

subsequent settlement deals.

27

2. Count Three The third count of Plaintiffs’ Amended Complaint claims that Defendants fail to provide a prompt post-deprivation hearing to individuals whose property has been seized. See Am. Compl. ¶¶ 266–71. Defendants concede that this claim is sufficiently pled, but assert that it does not apply to Plaintiff Geiger because he was represented by counsel in his criminal case. Defs.’ Mem. 25. But that is immaterial. Whatever procedures Plaintiff Geiger may have been afforded in his criminal case have no bearing on his claim as to the inadequate procedures in his civil forfeiture case. See Am. Compl. ¶ 211 (noting Plaintiff Geiger believed his car and money were seized as evidence and “learned only later that the Philadelphia D.A.’s Office was attempting to permanently keep his property through civil forfeiture”). Defendants also aver that Plaintiff Geiger “cannot[] allege that [he] was deprived of any right to due process because he failed to take advantage of an available and adequate procedure for return of his property,” via a motion for return of personal property pursuant to Pennsylvania Rule of Criminal Procedure 588. Defs.’ Mem. 26. But as the Plaintiffs aptly assert, “[t]he ability of criminal defendants to move for return
28

of property under Pennsylvania Rule of Criminal Procedure 588 is of no moment as Pennsylvania Rules of Civil Procedure govern civil-forfeiture actions.” Pls.’ Resp. 41 (citing Commonwealth v. All That Certain Lot or Parcel of Land Located at 605 Univ. Drive, 104 A.3d 411, 430 (Pa. 2014) (“We therefore hold that the [Pennsylvania] Rules of Civil Procedure apply to forfeiture proceedings.”)).9 Plaintiffs argue that “Defendants’ policy and practice of failing to provide prompt post-deprivation hearings violates the Due Process Clause of the Fourteenth Amendment because it fails to give property owners a chance to contest the basis for the deprivation at a meaningful time and in a meaningful manner.” Am. Compl. ¶ 269. Regardless of cases finding Rule 588 to provide sufficient post-deprivation process in other contexts, it is not clear as a matter of law that Plaintiffs were on notice of the availability of this remedy, and--even if they were aware--it is unclear whether a Rule 588 motion would provide a constitutionally sufficient “chance to contest the basis for the deprivation at a meaningful time and

9

In Defendants’ reply to Plaintiffs’ response, they

point to McKenna v. Portman, which found that “Pennsylvania Rule

of Criminal Procedure 588 provides an adequate post-deprivation

remedy when police seize property pursuant to an investigation.”

538 F. App’x 221, 225 (3d Cir. 2013). But this non-precedential

opinion concerned police seizures of personal property pursuant

to a search warrant, and it did not speak to the adequacy of the

civil forfeiture proceedings at issue in the instant case.

Simply pointing to Rule 588 does not end the inquiry here.

29

in a meaningful matter” in this context. Drawing all factual inferences in favor of the nonmoving Plaintiffs, count three adequately pleads a claim for relief.
3. Count Four The fourth count of Plaintiffs’ Amended Complaint concerns Defendants’ practice of repeatedly “relisting” forfeiture proceedings. Id. ¶¶ 272–78. As to this claim, Defendants simply remark that “it is unclear how the alleged ‘policy and practice’ of the D.A. Defendants deprives a property owner of a due process right,” and “it is not clear what process is denied Plaintiffs by virtue of this alleged conduct over and above the conduct alleged in the third count.” Defs.’ Mem. 29. However, Plaintiffs specifically allege that repeatedly relisting forfeiture actions “forc[es] members of the putative class to return to Courtroom 478 for each listing in order to preserve their interest in the property, or else lose their property forever through a default judgment,” Am. Compl. ¶ 274, which “imposes a high risk of erroneous deprivation of property.” Id. ¶ 276. Further, Plaintiffs assert that “[t]he private interests affected by the ‘relisting’ procedure outweigh Defendants’ interests in maintaining the policy.” Id. ¶ 276. Despite Defendants’ skepticism, viewed in the light most
30

favorable to the nonmoving Plaintiffs, this claim sufficiently pleads a due process violation.
4. Count Five Plaintiffs’ fifth Claim asserts that Defendants’ retention of forfeited property and monetary proceeds constitutes a violation of due process. Id. ¶¶ 279–287; see also id. ¶¶ 50– 55 (citing data from the state Attorney General’s Office that shows how the D.A.’s Office allocates forfeiture proceeds for both institutional and personal benefit and further alleging a profit-sharing agreement with the Philadelphia Police Department). In their motion to dismiss, Defendants dispute Plaintiffs’ factual allegations as to the distribution of these proceeds. Defs.’ Mem. 30 (“Any such [financial] incentive, however, is not realized by the prosecutors themselves [because] the proceeds are [statutorily] allocated for specific purposes subject to annual audits.”). As this claim appears to be inherently a factual issue, resolution via a Rule 12(b)(6) motion would be improper--which is illustrated by the posture of the cases cited by Defendants. See Marshall v. Jerrico, Inc., 446 U.S. 238, 241 (1980) (addressing a similar claim on summary judgment); State ex rel. Cnty. of Cumberland v. One 1990 Ford Thunderbird, 852 A.2d 1114, 1118-24 (N.J. Super. Ct. App. Div
31

2004) (same; cataloguing relevant U.S. Supreme Court case law on the subject).10
5. Count Six Plaintiffs’ sixth claim alleges that prosecutors essentially act like judges in running forfeiture proceedings in Courtroom 478. Am. Compl. ¶¶ 288-93. Coupled with Defendants’ alleged direct pecuniary interest in the outcome of the forfeiture proceedings, these allegations state a claim11 based on a violation of the due-process guarantee of an impartial neutral arbiter. See Tumey v. Ohio, 273 U.S. 510, 531 (1927) (finding a due process violation where a village mayor’s compensation was derived, in part, from fines he imposed).

10

In referring to the case law on this issue, Defendants

remark that “[i]t is not at all clear why” Plaintiffs classify

this claim as “‘inherently a factual issue,’” when “directly

analogous case law . . . suggests there could be no due process

violation.” Defs.’ Reply Br. 18 (quoting Pls.’ Resp. 42).

However, the cases cited by Defendants do not address the

particular statutory and financial schemes at issue in the

instant case, and thus, there are factual questions to resolve

as to Plaintiffs’ fifth claim--a claim which truly goes to the

heart of this case.

11

Defendants incorrectly assert that this claim is

duplicative of Plaintiffs’ third claim regarding the lack of a

prompt post-deprivation hearing. Defs.’ Mem. 29. A claim

regarding the lack of a prompt post-deprivation hearing is not

coextensive with a claim regarding the lack of a neutral

arbiter.

32

* * * Overall, viewing the facts in the light most favorable to the nonmoving Plaintiffs, the Court concludes that each of the six counts of Plaintiffs’ Amended Complaint have sufficiently stated claims for relief under Rule 12(b)(6).
D. The D.A.’s Office Is a Proper Party Defendants also assert that the D.A.’s Office is “not
an entity amenable to suit under 42 U.S.C. § 1983.” Defs.’ Mem. 4.12 In support of this view, Defendants rely on two sources of authority for dismissing the D.A.’s Office as a Defendant in this case: 53 P.S. § 16257 and Reitz v. County of Bucks, 125 F.3d 139 (3d Cir. 1997), and its progeny. But contrary to these sources, the D.A.’s Office is a proper party under § 1983.
Defendants principally rely on § 16257, which requires that all suits lodged against any “department” of the City of Philadelphia be brought “in the name of” the City. See Defs.’ Mem. 24.13 However, this provision is inapplicable, as the D.A.’s

12

“As a preliminary matter,” Plaintiffs allege,

“Defendants’ arguments are inconsequential: Dismissing the

Philadelphia D.A.’s Office would save neither judicial nor

parties’ resources as Plaintiffs have also sued D.A. Williams

and the City of Philadelphia and will still need the same

discovery from these parties.” Pls.’ Resp. 43.

13

Specifically, § 16257 states as follows:

33

Office is technically not a department of the City, but is a
separate entity created by state law. 16 P.S. §§ 7701–7742.
Pennsylvania State law dictates that the District Attorney of
Philadelphia is independently elected, and vests the D.A. with
authority to appoint the First Assistant District Attorney,
Assistant District Attorneys, and Detectives. Id. §§ 7701, 7721,
7723, 7741. Moreover, Article III, § 3-100 of Philadelphia’s
Home Rule Charter establishes the “offices, departments, boards,
commissions, and agencies” of the City of Philadelphia--and,
importantly, the Philadelphia D.A.’s Office is not among the
many agencies listed.
Accordingly, Pennsylvania courts limit dismissal of
departments of the City under § 16257 to departments created
All bonds, contracts and obligations heretofore executed, judgments entered, claims filed, and suits now pending in the name of any department of said city, formerly having had a corporate existence, are declared to be good and valid, and to inure to the use of the city; but no such department shall be taken to have had, since the passage of the act to which this is a supplement, a separate corporate existence, and hereafter all suits growing out of their transactions, and all claims to be filed for removing nuisances, together will all bonds, contracts and obligations, hereafter to be entered into or received by the said departments, shall be in the name of the city of Philadelphia.
34

under the authority of the Home Rule Charter or City Code.14 In like manner, the Third Circuit has dismissed defendants under § 16257 when they were found to be departments created by the Home Rule Charter. See Russell v. City of Philadelphia, 428 F. App’x 174, 177 (3d Cir. 2011) (holding that the Philadelphia Prison System, established by the City’s Home Rule Charter, § 3100(d), and a prison within the system, were departments of the City under § 16257); Kent v. Phila. D.H.S., 503 F. App’x 128, 130 n.2 (3d Cir. 2012) (holding that the Department of Human Services, formerly known as the Department of Public Welfare and established by Home Rule Charter § 3-100(d), was a department of the City under § 16257).
Defendants’ argument also rests on the Third Circuit’s decision in Reitz v. County of Bucks, a case about municipal liability and--in Plaintiffs’ words--a “source of much mischief

14

See, e.g., HSP Gaming, L.P. v. City Council, 939 A.2d

273, 276 n.4 (Pa. 2007) (holding that the Planning Commission,

established by the Home Rule Charter under § 3-100(e), was a

department of the City under § 16257); Phila. Entm’t & Dev.

Partners, L.P. v. City of Philadelphia, 939 A.2d 290, 292 n.1

(Pa. 2007) (holding that the Department of Licenses and

Inspections, established by the Home Rule Charter under § 3-

100(d), was a department of the City under § 16257); Wood v.

City of Philadelphia, No. 1348 C.D. 2013, 2014 WL 1004119, at *1

(Pa. Commw. Ct. Mar. 13, 2014) (discussing how the Philadelphia

Parking Authority and the Bureau of Administrative

Adjudications, established under Philadelphia Code, §§ 12-2801

to 12-2809, were departments of the City under § 16257).

35

on Section 1983 liability for D.A. Offices in the Commonwealth.” Pls.’ Resp. 45.
In the Reitz case, plaintiffs--“members of a large family of which one was convicted of violating Pennsylvania narcotics laws” and whose property had been seized for civil forfeiture--filed suit against Bucks County, the Bucks County D.A.’s Office, and individual prosecutors, claiming “that the named defendants failed to comply with court orders directing the return of their property and intentionally or negligently mishandled said property.” 125 F.3d at 141, 142.
In contrast to the instant case, the plaintiffs in Reitz specifically argued “that the prosecutors are the employees of the County, and that the County is liable for the misconduct of its employees, and thus the County is liable for the misconduct of the prosecutors.” Id. at 144. Thus, the crucial question was decidedly not whether the Bucks County D.A.’s Office was an entity that could be sued under § 1983, but instead whether the D.A.’s Office was liable for an “actionable custom or policy on the part of this Office in its prosecutorial capacity” or for a “failure to train its employees that constitutes a deliberate indifference to the constitutional rights of the plaintiffs.” Id. at 145. Moreover, for purposes of
36

deciding the issue, the Third Circuit “accept[ed] plaintiffs’[]
proposition that the District Attorney’s Office is a separate
entity,” id., and stated, in relevant part,
[t]he plaintiffs recognize both “that the County and the District Attorney’s Office are separate entities” and that the District Attorney is, under the Constitution of Pennsylvania, Article IX, § 4, an independently elected official of the County, as “opposed to non-elected County offices controlled by the elected County Commissioners.” Nonetheless, plaintiffs contend “that the District Attorney’s Office and its staff are employees of the County of Bucks.” Further, plaintiffs assert that the evidence here shows that the County of Bucks “is the employer of the defendant District Attorney as a matter of policy and practice [and] with deliberate indifference failed to adequately discipline, train . . . or otherwise direct” their employees and agents concerning the rights of citizens.
Id. at 146 (alterations in original). The Reitz Court’s central
holding, as to the Bucks County D.A. Office, was that plaintiffs
had “presented no evidence of any actionable custom or policy on
the part of this Office in its prosecutorial capacity nor of any
failure to train its employees that constitutes a deliberate
indifference to the constitutional rights of the plaintiffs.”
Id. at 145. Thus, the Court held that “the district court did
not err in also granting summary judgment in favor of the Bucks
County District Attorney’s Office.” Id.
At the end of the opinion--essentially in one line
that is arguably dicta--the Reitz Court summarily remarked that
37

“the Bucks County District Attorney’s Office is not an entity for purposes of § 1983 liability.” Id. at 148. The Third Circuit neither explained nor cited authority for this proposition, but simply referenced the district court’s similarly uncited remark that “[t]he Bucks County District Attorney’s Office is not a legal entity for the purpose of § 1983 liability.” Reitz v. Cnty. of Bucks, No. 95-6603, 1996 WL 530021, at *2 (E.D. Pa. Sept. 17, 1996).
Since Reitz, district courts have relied on this single line without any explanation, independent analysis, or scrutiny into the precise contours of § 16257, and have thus held that the D.A.’s Office is not an independent state entity for purposes of § 1983 liability. See, e.g., Brinson v. City of Philadelphia, No. 11-7479, 2012 WL 642057, at *2 (E.D. Pa. Feb. 28, 2012); Allen v. Dist. Attorney’s Office of Phila., 644 F. Supp. 2d 600, 611 (E.D. Pa. 2009); Domenech v. City of Philadelphia, No. 06-1325, 2007 WL 172375, at *2 (E.D. Pa. Jan. 18, 2007). This Court declines to walk down this unexamined path--a path not supported by a close reading of Reitz. Accordingly, the Court concludes that neither § 16257 nor Reitz bars suit against the D.A.’s Office under the circumstances of this case.
38

V. CONCLUSION For the foregoing reasons, the Court will deny
Defendants’ motion to dismiss Plaintiffs’ Amended Complaint. An appropriate order follows.
39

 
 Case 2:14-cv-04687-ER Document 91 Filed 07/29/15 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOS SOUROVELIS, DOILA WELCH, NORYS HERNANDEZ, and NASSIR GEIGER, on behalf of themselves and all others similarly situated,
Plaintiffs,
vs.
CITY OF PHILADELPHIA; MICHAEL A. NUTTER, in his official capacity as Mayor of Philadelphia; PHILADELPHIA DISTRICT ATTORNEY’S OFFICE; R. SETH WILLIAMS, in his official capacity as District Attorney of Philadelphia; and CHARLES H. RAMSEY, in his official capacity as Commissioner of the Philadelphia Police Department;

Civil Action No. 2:14-cv-04687-ER Assigned to the Honorable Judge Robreno
Special Management Track

Defendants.

PROPOSED SETTLEMENT AGREEMENT FOR PLAINTIFFS’ FIRST AND SECOND CLAIMS FOR RELIEF

Pursuant to Federal Rule of Civil Procedure 23(e), Plaintiffs Christos Sourovelis, Doila

Welch, Norys Hernandez, and Nassir Geiger (“Named Plaintiffs”), Defendants City of

Philadelphia, Mayor Michael A. Nutter, Police Commissioner Charles H. Ramsey (collectively,

“City Defendants”), and the Philadelphia District Attorney’s Office and District Attorney R. Seth

Williams (collectively, “District Attorney Defendants”) respectfully submit this proposed

settlement agreement to the Court for preliminary approval. This agreement is intended to set

forth the full and final terms by which the Named Plaintiffs, on behalf of themselves and all

members of the settlement classes defined herein, the City Defendants, and the District Attorney

Defendants settle and resolve the First and Second Claims for Relief set forth in Plaintiffs’ First

Amended Class-Action Complaint.

Case 2:14-cv-04687-ER Document 91 Filed 07/29/15 Page 2 of 30
I. INTRODUCTION WHEREAS, on August 11, 2014, Plaintiffs Sourovelis, Welch and Hernandez , owners of real property against which a civil-forfeiture petition had been filed in the Court of Common Pleas of Philadelphia County, commenced this class-action litigation challenging the constitutionality of specific policies and practices of the City Defendants and the District Attorney Defendants in prosecuting civil-forfeiture cases pursuant to the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. §§ 6801 et seq.; WHEREAS, on November 17, 2014, the Named Plaintiffs, including Nassir Geiger, an owner of personal property against which a civil-forfeiture petition had been filed in the Court of Common Pleas of Philadelphia County, filed a First Amended Class-Action Complaint (“Amended Complaint”); WHEREAS, Plaintiffs’ First Claim for Relief in the Amended Complaint alleges that the following policies and practices of the Defendants related to applying for and obtaining ex parte “seize and seal” orders violate the Due Process Clause of the Fourteenth Amendment: (1) “[the] policy and practice of relying on 42 Pa. Cons. Stat. § 6802(f) and (g) to seize real property without first providing owners or residents of the property with notice and a meaningful opportunity to be heard”; (2) “the policy and practice . . . [of] apply[ing] for ex parte orders to seize and seal real property without providing any particularized evidence that the order is needed to preserve the specific property for civil forfeiture or that providing notice will jeopardize the availability of the property for forfeiture”; (3) “the policy and practice of . . . apply[ing] for ex parte orders to seize and seal real property without proffering any particularized evidence of exigent circumstances as defined by United States v. James Daniel Good Real Property, 510 U.S. 43 (1993)[,] and its progeny” [“James Daniel Good”]; (4) “the
2

Case 2:14-cv-04687-ER Document 91 Filed 07/29/15 Page 3 of 30
policy and practice of . . . treat[ing] mere possession or the single sale of controlled substances in a particular real property as exigent circumstances warranting ex parte seizure”; and (5) “the policy and practice of . . . apply[ing] for an ex parte order to seize and seal real property without proffering any evidence that a temporary restraining order restricting transfer of the property or other less restrictive means will be insufficient to protect Defendants’ interests during the pendency of the civil-forfeiture proceedings” (Am. Compl., ECF No. 40, ¶¶ 243-47);
WHEREAS, the District Attorney Defendants dispute liability as to Plaintiffs’ First Claim for Relief;
WHEREAS, Defendants represent that since on or about September 22, 2014, the District Attorney Defendants have not filed any applications for an ex parte “seize and seal” order;
WHEREAS, Plaintiffs’ Second Claim for Relief in the Amended Complaint alleges that the following policies and practices of the Defendants related to conditions required by prosecutors in agreements to “unseal” real property following execution of an ex parte “seize and seal” order (“unsealing agreement”), or in agreements to withdraw a forfeiture petition against property (“settlement agreement”), violate the Due Process Clause of the Fourteenth Amendment: (1) “[the] policy and practice of compelling property owners to agree that if Defendants attempt to forfeit the property in the future, the property owner waives his or her rights to assert an innocent-owner defense under 42 Pa. Const. [Stat.] § 6802(j) or to assert a constitutional defense that forfeiture of the property would constitute an excessive fine”; and (2) “[the] policy and practice of compelling property owners to agree to bar specific individuals from their property” (Am. Compl. ¶¶ 256-57);
3

Case 2:14-cv-04687-ER Document 91 Filed 07/29/15 Page 4 of 30
WHEREAS, the Amended Complaint further alleges that individual prosecutors within the Philadelphia District Attorney’s Office have required, as conditions of an unsealing agreement or settlement agreement, that property owners subject “any prospective lessee, tenant, buyer or transferee of the property” to prior review by the Commonwealth; “[g]ive the Commonwealth power to reject any prospective lessee, tenant, buyer, or transferee;” and to “[s]creen prospective lessees, tenants, buyers, residents, or transferees of the property, including credit history and reference checks” (Am. Compl. ¶ 144 (emphasis removed));
WHEREAS, the District Attorney’s Office reviewed all settlement and unsealing agreements entered into since August 11, 2014, and compiled a representative list of conditions appearing in agreements involving real property and produced representative conditions in settlement agreements involving personal property;
WHEREAS, Defendants imposed similar conditions as part of settlement negotiations in forfeiture actions involving personal property, including, but not limited to, requiring that the respondent will not permit specific individuals to possess, use, or operate the seized vehicle and providing for the “automatic forfeiture” of the vehicle if it is “used in violation of the law”;
WHEREAS, the District Attorney Defendants dispute liability as to Plaintiffs’ Second Claim for Relief;
WHEREAS, Defendants represent that since on or about November 5, 2014, the District Attorney Defendants have not required property owners to waive any statutory or constitutional defense in any future civil-forfeiture proceeding as a condition of an unsealing agreement or settlement agreement;
WHEREAS, Defendants represent that since on or about March 16, 2015, the District Attorney Defendants have not required real property owners to agree to bar relatives from
4

Case 2:14-cv-04687-ER Document 91 Filed 07/29/15 Page 5 of 30
entering the property or residing together at the property as a condition of an unsealing or settlement agreement;
WHEREAS, Defendants represent that since April 1, 2015, the District Attorney Defendants have not required real property owners to give the Commonwealth power to prior review or reject any prospective lessees, tenants, buyers, residents, or transferees of the property or require property owners to screen prospective lessees, tenants, buyers, residents, or transferees of the property as conditions of unsealing agreements or settlement agreements;
WHEREAS, Defendants represent that since June 11, 2015, the District Attorney Defendants have neither required personal property owners to restrict specific individuals from using their property nor provided for the “automatic forfeiture” of personal property in the future as conditions of a settlement agreement; and
WHEREAS, the Parties have engaged in settlement negotiations to resolve the First and Second Claims for Relief in the Amended Complaint,
IT IS HEREBY AGREED, by and among the Parties, as follows: II. TERMS OF AGREEMENT
A. DEFINITIONS In addition to terms identified and defined elsewhere in this Agreement, the following
terms will have the following meanings as used in this Agreement and its Appendices: 1. “Agreement” means this proposed settlement agreement on the First and Second
Claims for Relief in Plaintiffs’ Amended Complaint. 2. “Controlled Substances Forfeiture Act” means 42 Pa. Cons. Stat. §§ 6801 and
6802.
5

Case 2:14-cv-04687-ER Document 91 Filed 07/29/15 Page 6 of 30
3. “Court” means the United States District Court for the Eastern District of Pennsylvania, or United States District Judge Eduardo C. Robreno.
4. “District Attorney” means Philadelphia District Attorney R. Seth Williams and any official successors during the term of this Agreement.
5. “District Attorney’s Office” means the Office of the District Attorney of Philadelphia, all of its divisions, subdivisions, and all of its agents and employees.
6. “Ex parte ‘seize and seal’ order” means an order of the Court of Common Pleas of Philadelphia County, applied for by the Philadelphia District Attorney’s Office, which authorizes the seizure and sealing of real property without providing pre-seizure notice or an opportunity to be heard before a judge.
7. “The Parties” means the Named Plaintiffs, the City Defendants, and the District Attorney Defendants in Sourovelis v. City of Philadelphia, Civil Action No. 2:14-cv-04687-ER (E.D.Pa.).
8. “Relative” means any person connected by blood, marriage, or adoption, up to and including fifth-degree relatives, such as first cousins once removed and second cousins.
9. “Respondent” means any person who was in legal possession of real or personal property at the time a civil-forfeiture petition against the property was filed and/or any person who is the record title holder of the property subject to civil forfeiture. B. JURISDICTION AND VENUE
The Parties agree that this Court has jurisdiction over the Parties and the subject matter of this action and that venue is proper. The Parties ask this Court to retain jurisdiction over the First and Second Claims for Relief in the Amended Complaint for the duration of this Agreement to ensure substantial compliance with its terms. The Parties agree that the Court may extend the
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term of its jurisdiction based on a finding of substantial noncompliance with the terms of this Agreement. C. EFFECTIVE DATE OF THE AGREEMENT
This Agreement will become effective on the date the Court finally approves, signs, and enters the Agreement (“effective date”). Beginning on the effective date, the Agreement will become binding on the Parties, their agents, and their successors. D. CLASS CERTIFICATION
Without waiver or concession of any of their respective positions regarding class certification as to other counts of Plaintiffs’ First Amended Complaint, the Parties stipulate to certification of the following settlement classes solely for purposes of this Agreement:
1. For purposes of the First Claim for Relief in the Amended Complaint, the settlement class will consist of all persons holding legal title to or otherwise having a legal interest in real property against which an ex parte “seize and seal” order is presently in effect, or will in the future be in effect.
2. For purposes of the Second Claim for Relief in the Amended Complaint, the settlement class will consist of all persons holding legal title to or otherwise having a legal interest in real or personal property against which a civil-forfeiture petition has been filed, or will in the future be filed, in the Court of Common Pleas of Philadelphia County and who entered into an unsealing agreement or a settlement agreement.
For purposes of this Agreement only, the settlement classes will be certified pursuant to Fed. R. Civ. P. 23(a) and (b)(2).
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E. GENERAL PROVISIONS 1. Applications for Ex Parte “Seize and Seal” Orders The District Attorney Defendants shall not seek an ex parte “seize and seal” order against
any real property under the Controlled Substances Forfeiture Act, except when all of the following circumstances are satisfied:
a. Prior Approval. Any application for an ex parte “seize and seal” order will be approved in advance by a person specifically designated by the District Attorney’s Office, previously identified to Plaintiffs, before it is submitted to the Court of Common Pleas of Philadelphia County. This designee will ensure that the application is in accord with the terms of this Agreement.
b. Exigent Circumstances. Any application for an ex parte “seize and seal” order will provide specific, particularized, and credible facts demonstrating that exigent circumstances exist under James Daniel Good.
(1) Exigent circumstances include, but are not limited to, persistent illegal activity occurring at the property, after, on multiple occasions, (i) arrests have been made or search warrants have been executed, and (ii) contraband has been discovered at the property during those arrests or executions of search warrants.
(2) The mere fact that law enforcement observed controlled substances present at a property, that law enforcement observed controlled substances being sold or distributed at a property, that a property was purchased with criminal proceeds, or that a property is considered deteriorated does not constitute exigent circumstances.
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(3) Conclusory allegations are insufficient to establish exigent circumstances.
(4) Merely attaching a copy of any police report concerning the alleged criminal activity that serves as the predicate for civil forfeiture is insufficient to establish exigent circumstances. c. Inadequacy of Less Restrictive Measures. An ex parte “seize and seal” order will not be submitted to the Court of Common Pleas of Philadelphia County unless the application also provides specific, particularized, and credible facts demonstrating that less restrictive measures are insufficient to protect the Commonwealth’s interests in preventing the sale, destruction, or continued unlawful use of the real property.
(1) Any application for an ex parte “seize and seal” order based on the District Attorney’s belief that such relief is necessary to protect the Commonwealth’s interest in preventing the sale or destruction of the property will set forth specific, particularized, and credible facts showing that less restrictive measures (such as a lis pendens, restraining order, or bond) are insufficient to protect this interest and that providing notice to the owner or respondent would jeopardize this interest.
(2) Any application for an ex parte “seize and seal” order based on the District Attorney Defendants’ belief that such relief is necessary to protect the Commonwealth’s interest in preventing the continued unlawful use of the real property will set forth specific, particularized, and credible facts showing that law enforcement powers (such as execution of search and seizure warrants or arrest warrants) are insufficient to prevent ongoing illegal drug activity at the property
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and that providing notice to the owner or respondent would jeopardize this interest. 2. Existing Ex Parte “Seize and Seal” Orders No later than thirty (30) days from execution of this Agreement, the District Attorney Defendants will move to vacate any ex parte “seize and seal” order presently in effect. If, after vacatur of a prior order, the District Attorney Defendants determine that exigent circumstances are presented and less restrictive measures are inadequate, they will comply with the abovestated procedures to apply for a new ex parte “seize and seal” order and will provide notice as specified in this Agreement. If a property owner, whose property is currently subject to a “seize and seal” order, is represented by counsel and knowingly and voluntarily agrees in writing to the continued sealing of his or her property, the District Attorney Defendants can, within thirty (30) days of the execution of this Agreement, seek to reinstate the “seize and seal” order after providing the property owner with proper notice and presenting the petition to reinstate the “seize and seal” order at a hearing before a judge of the Court of Common Pleas. 3. Unsealing Agreements a. The following conditions contained in an unsealing agreement entered into between the District Attorney Defendants and Respondents are void and will not be enforced by the Defendants:
(1) Prospective waiver of statutory or constitutional defenses or claims in any future proceedings, including any condition providing for automatic forfeiture;
(2) Restricting access to the property by any relative;
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Case 2:14-cv-04687-ER Document 91 Filed 07/29/15 Page 11 of 30
(3) Restricting access to the property by any non-relative, unless the non-relative has been convicted of distributing illegal controlled substances;
(4) Giving the Commonwealth the prerogative to review, approve, or reject prospective lessees, tenants, buyers, residents, or transferees of the property; and
(5) Requiring property owners to screen or disclose personal information (including, but not limited to, social security numbers and dates of birth) about prospective lessees, tenants, buyers, residents, or transferees of the property. Within thirty (30) days of execution of this Agreement, the District Attorney Defendants will provide notice to all Respondents who have entered into unsealing agreements containing such conditions, that such conditions no longer apply. b. In drafting the terms of an unsealing agreement vacating a prior ex parte “seize and seal” order, the District Attorney Defendants will use, as a template, the Model Unsealing Agreement, attached as Appendix A, to obtain a consent order vacating a prior ex parte “seize and seal” order and allowing the Respondent to re-enter and repossess the property. The Parties agree that the content of such agreements may vary depending upon the factual circumstances of a given case, but that in no event will such agreement contain conditions enumerated in Section E, paragraph 3a above. c. In drafting the terms of an unsealing agreement vacating a prior “seize and seal” order after notice and an opportunity for an adversarial hearing before a judge of the Court of Common Pleas of Philadelphia County, the District Attorney Defendants will use, as a template, the Model Unsealing Agreement, attached as Appendix B, to obtain a
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Case 2:14-cv-04687-ER Document 91 Filed 07/29/15 Page 12 of 30
consent order vacating the “seize and seal” order and allowing the Respondent to re-enter and repossess the property. The Parties agree that the content of such agreements may vary depending upon the factual circumstances of a given case, but that in no event will such agreement contain conditions enumerated in Section E, Paragraph 3a. 4. Settlement Agreements (Consent Motions for Discontinuance)
a. The following conditions contained in settlement agreements entered into between the District Attorney Defendants and Respondents are void and will not be enforced by the Defendants:
(1) Prospective waiver of statutory or constitutional defenses or claims in any future proceedings, including any condition providing for “automatic forfeiture”;
(2) Restricting access to the property by any relative; (3) Restricting access to the property by any non-relative, unless the non-relative has been convicted of distributing illegal controlled substances; and (4) Giving the Commonwealth the prerogative to review, approve, or reject prospective lessees, tenants, buyers, residents, or transferees of the property; and (5) Requiring property owners to screen or disclose personal information (including, but not limited to, social security numbers and date of birth) about prospective lessees, tenants, buyers, residents, or transferees of the property. Within thirty (30) days of execution of this Agreement, the District Attorney Defendants will provide notice to all Respondents who have entered into
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Case 2:14-cv-04687-ER Document 91 Filed 07/29/15 Page 13 of 30
settlement agreements containing such conditions that the conditions no longer apply. b. In drafting the terms of a settlement agreement involving real property, the District Attorney Defendants will use, as a template, the Model Consent Motion for Discontinuance, attached as Appendix C. The Parties agree that the content of such consent motions may vary depending upon the factual circumstances of a given case, but that in no event will such consent motions contain any condition enumerated in Section E, Paragraph 4a. c. In drafting the terms of a settlement agreement involving a vehicle, the District Attorney Defendants will use, as a template, the Model Consent Motion for Discontinuance, attached as Appendix D. The Parties agree that the content of such consent motions may vary depending on the factual circumstances of a given case, but that in no event will such consent motions contain any condition enumerated in Section E, Paragraph 4a. F. NOTICE 1. The District Attorney Defendants agree to produce the following documents on a rolling basis beginning thirty (30) days from the execution of this Agreement and to complete production within sixty (60) days of the execution of this Agreement:
a. All applications for ex parte “seize and seal” orders and related documents (including, but not limited to, supporting affidavits, the forfeiture petition, lis pendens, application for a temporary restraining order, and any court orders) filed since August 11, 2012.
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b. All unsealing and settlement agreements and corresponding forfeiture petitions and court orders filed since August 11, 2012. 2. Additionally, for a period of eighteen (18) months from the effective date, the District Attorney Defendants will produce to Plaintiffs the following documents on a monthly basis:
a. The complete miscellaneous docket report of the Court of Common Pleas of Philadelphia County in all civil-forfeiture cases in which a “seize and seal” order is currently in place;
b. All documents, with any attachments, filed in the miscellaneous docket in the Court of Common Pleas of Philadelphia County in the civilforfeiture actions referenced in Section F, Paragraph 2a, including but not limited to applications for temporary restraining orders, lis pendens, interrogatories, and responses to interrogatories;
c. Any and all applications made in the Court of Common Pleas of Philadelphia County for a “seize and seal” order (whether filed ex parte or after notice), including all supporting documentation, affidavits, and police reports, unless such production would be prohibited under Pennsylvania or federal law, in which case the District Attorney Defendants will provide redacted copies of the documentation, where appropriate, along with an explanation of why redaction is necessary;
d. Any court order regarding an application for a “seize and seal” order;
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e. The complete miscellaneous docket report of the Court of Common Pleas of Philadelphia County of all civil-forfeiture cases in which an unsealing agreement is executed;
f. All documents, with any attachments, filed in the miscellaneous docket in the Court of Common Pleas of Philadelphia County in forfeiture actions referenced in Section F, Paragraph 2e, including but not limited to applications for temporary restraining orders, lis pendens, interrogatories, and responses to interrogatories;
g. Copies of all documents verifying that a Respondent has consented to a “seize and seal” order and is represented by counsel, including but not limited to all written agreements, all petitions to reinstate the “seize and seal” order, and all orders issued thereunder;
h. The complete miscellaneous docket report of the Court of Common Pleas of Philadelphia County in all civil-forfeiture cases in which a settlement agreement is executed;
i. All documents, with any attachments, filed in the miscellaneous docket in the Court of Common Pleas of Philadelphia County in forfeiture actions referenced in Section F, Paragraph 2h, including but not limited to applications for temporary restraining orders, lis pendens, interrogatories, and responses to interrogatories.
j. All unsealing agreements entered into between Respondents and the District Attorney’s Office; and
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k. All settlement agreements entered into between Respondents and the District Attorney’s Office. G. COMPLIANCE This Court retains jurisdiction over the First and Second Claims for Relief in the Amended Complaint for eighteen (18) months after the effective date, but may extend the term of its jurisdiction based on a finding of substantial noncompliance. If Plaintiffs believe there has been substantial noncompliance with any material provision of the Agreement, the Parties agree to the following procedure to resolve any dispute: 1. A claim of substantial noncompliance can be made on the following grounds: a. the District Attorney Defendants submitted an application for an ex parte “seize and seal” order to the Court of Common Pleas of Philadelphia County that was not supported by exigent circumstances or necessity, as required under James Daniel Good; b. the District Attorney Defendants executed an unsealing or settlement agreement that included any of the following unconstitutional conditions: (1) prospective waiver of statutory or constitutional defenses or claims in any future proceeding, including any condition providing for automatic forfeiture; (2) restricting access to the property by any relative; (3) restricting access to the property by any non-relative who has not been convicted of distributing an illegal controlled substance; (4) giving the Commonwealth the prerogative to review, approve, or reject prospective lessees, tenants, buyers, residents, or transferees of the property; or (5) requiring property owners to screen or disclose personal information (including, but not limited to social security numbers and dates of birth) about prospective lessees, tenants, buyers, residents, or transferees of the property; or
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Case 2:14-cv-04687-ER Document 91 Filed 07/29/15 Page 17 of 30
c. the District Attorney Defendants executed an unsealing or settlement agreement containing any other condition on the exercise of constitutional rights where the Respondent was not represented by counsel. 2. Plaintiffs will confer with the District Attorney’s Office over any claim of substantial noncompliance and the Parties will attempt to resolve any such claim in good faith. 3. If the Parties are unable to resolve any claim of substantial noncompliance through this initial conference, Plaintiffs will submit a written Notice of Substantial Noncompliance to the City Defendants and the District Attorney Defendants, specifying their basis for believing there has been substantial noncompliance. 4. The City Defendants and the District Attorney Defendants will respond, in writing, to any such Notice of Substantial Noncompliance within thirty (30) days. 5. Within fourteen (14) days after Defendants’ service of their written responses on Plaintiffs, the Parties will again meet and confer to attempt to resolve the dispute in good faith without seeking court intervention. 6. In the event the Parties are unable to resolve the dispute, any party may petition the Court to order specific performance of the Agreement. 7. The prevailing party on a claim of substantial noncompliance may petition the Court to extend the noticing period and may seek an award of reasonable attorneys’ fees and costs associated with drafting and litigating the Notice of Substantial Noncompliance. H. ATTORNEY FEES AND COSTS Except as expressly provided herein, no party may petition the Court to recover attorneys’ fees or costs associated with enforcing this Agreement, including any fees or costs associated with the notice provisions. Nothing in this Agreement, however, will preclude a party from filing a petition to recover attorneys’ fees or costs resulting from prior litigation of Plaintiffs’ First and Second Claims for Relief in Plaintiffs’ Complaint or Amended Complaint. The amount of any attorneys’ fees and costs paid to Plaintiffs will be made public.
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I.

RESERVATIONS AND LIMITATIONS

Plaintiffs reserve the right to challenge any condition contained in future unsealing or

settlement agreements that are not contained in agreements reviewed as part of this settlement

agreement as an unconstitutional condition.

Dated this 29th day of July, 2015.

Respectfully submitted,

For Plaintiffs

For the City Defendants

By: /s/ Darpana M. Sheth INSTITUTE FOR JUSTICE William H. Mellor* Scott G. Bullock* Darpana M. Sheth* Robert P. Frommer* 901 North Glebe Road, Suite 900 Arlington, VA 22203 Tel: (703) 682-9320 Fax: (703) 682-9321 E-mail: wmellor@ijorg; sbullock@ij.org; dsheth@ij.org; rfrommer@ij.org Admitted Pro Hac Vice
Lead Counsel for Plaintiffs
KAIRYS, RUDOVSKY,MESSING &FEINBERG David Rudovsky (I.D. Number 15168) The Cast Iron Building 718 Arch Street Suite 501 South Philadelphia, PA 19106 Tel: (215) 925-4400 Email: drudovsky@krlawphila.com
Local Counsel for Plaintiffs

By: /s/ Shelley Smith CITY SOLICITOR CITY OF PHILADELPHIA LAW DEPARTMENT Shelley Smith 1515 Arch Street, 17th Floor Philadelphia, PA 19102 Counsel for Defendants City of Philadelphia, Mayor Michael A. Nutter, and Police Commissioner Charles H. Ramsey
For the District Attorney Defendants
By: /s/ R. Seth Williams District Attorney R. Seth Williams
By: /s/ Bryan C. Hughes OFFICE OF THE DISTRICT ATTORNEY Elizabeth J. Rubin Bryan C. Hughes Douglas M. Weck, Jr. Three South Penn Square Philadelphia, PA 19107 Tel: (215) 686-8787 Email: bj.graham-rubin@phila.gov; bryan.hughes@phila.gov; douglas.weck@phila.gov
Counsel for Defendants Philadelphia District Attorney’s Office and District Attorney R. Seth Williams

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APPENDIX A [INSERT CAPTION] CONSENT MOTION TO VACATE ORDER AND NOW, this [DATE], the COMMONWEALTH OF PENNSYLVANIA, through the Philadelphia District Attorney’s Office (“Commonwealth”) and [RESPONDENT] (“Respondent”) respectfully submit this consent motion to vacate the [DATE OF ORDER], order of this Court authorizing the preliminary seizure and sealing of the subject property. As support, the parties state as follows: 1. On [DATE], the Commonwealth commenced this action by filing a civilforfeiture petition against the real property and improvements known as [INSERT ADDRESS] (“the Property”), alleging that the Property was subject to forfeiture pursuant to the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. §§ 6801 et seq. 2. On [DATE], the Commonwealth applied ex parte for an order authorizing the preliminary seizure and sealing of the Property (“seize and seal order”) and separately moved for a temporary restraining order prohibiting the transfer of any interest in the Property pending further litigation in this action. 3. On [DATE], this Court granted the Commonwealth’s motion for temporary restraining order and issued a seize and seal order. 4. On [DATE], officers of the Philadelphia Police Department executed the seize and seal order and served any occupants with the forfeiture petition, the application for the seize and seal order, the seize and seal order itself, the temporary restraining order, and notice of a prompt post-deprivation hearing.
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5. On [DATE], the Commonwealth served the foregoing documents on the record

title holder of the Property.

6. On [DATE], Respondent appeared in court, made a prima facie showing of his or

her legal claim to ownership of the Property, and indicated that he or she will take reasonable

measures to ensure that no activity that would constitute a violation of the Controlled Substance,

Drug, Device and Cosmetic Act, 35 Pa. Cons. Stat. §§ 780-101 to -144 will occur at the Property

subsequent to the execution of this agreement.

7. The Commonwealth has advised Respondent that any activity that would

constitute a violation of the Controlled Substances, Drug, Device and Cosmetic Act, 35 Pa.

Cons. Stat. §§ 780-101 to -144 occurring at the Property subsequent to the execution of this

agreement may result in the Commonwealth (a) applying for a new seize and seal order, and (b)

arguing at any trial on the merits that Respondent should not be entitled to the “innocent owner”

defense set forth at 42 Pa. Cons. Stat. § 6801(a)(6)(ii) and § 6802(j).

8. In light of the foregoing, the Commonwealth consents to vacatur of the seize and

seal order in this matter.

WHEREFORE, the Commonwealth, upon consent of the parties, requests an order:

(1) Vacating the [DATE OF ORDER], order authorizing the seizure and sealing of

the Property pending further litigation;

(2) Permitting Respondent(s) to re-enter and take possession of the Property; and

(3) Decreeing that all utility services that were in place at the time the prior order was

executed be reinstated.

____________________________ [RESPONDENT]

____________________________ PROSECUTOR

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[INSERT CAPTION] ORDER
Upon consideration of the Consent Motion to Vacate Order filed by the Commonwealth, it is this ___ day of [MONTH AND YEAR], by the Court of Common Pleas of Philadelphia County, ORDERED that:
1. The order dated [DATE], authorizing the Commonwealth to seize and seal the real property and improvements known as [INSERT ADDRESS] (“the Property”) BE, and the same hereby IS, VACATED;
2. The Commonwealth is directed promptly to UNSEAL the Property and to permit Respondent [NAME] to RE-ENTER AND REPOSSESS the Property; and
3. All utility services at the Property that were in place at the time of the prior order may be REINSTATED by Respondent [NAME].
BY THE COURT:
____________________________________ J.
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APPENDIX B [INSERT CAPTION] CONSENT MOTION TO VACATE ORDER AND NOW, this [DATE], the COMMONWEALTH OF PENNSYLVANIA, through the Philadelphia District Attorney’s Office (“Commonwealth”) and [RESPONDENT] (“Respondent”) respectfully submit this consent motion to vacate the [DATE OF ORDER], order of this Court authorizing the preliminary seizure and sealing of the subject property. As support, the parties state as follows: 1. On [DATE], the Commonwealth commenced this action by filing a civilforfeiture petition against the real property and improvements known as [INSERT ADDRESS] (“the Property”), alleging that the Property was subject to forfeiture pursuant to the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. §§ 6801 et seq. 2. On [DATE], the Commonwealth submitted an application for an order authorizing the preliminary seizure and sealing of the Property (“seize and seal order”), and separately moved for a temporary restraining order prohibiting the transfer of any interest in the Property pending further litigation in this action. 3. On [DATE], this Court granted the Commonwealth’s motion for temporary restraining order and scheduled a hearing on the application for seize and seal order on [DATE]. 4. On [DATE], the Commonwealth served the record title holder of the Property, all occupants, and Respondent with the forfeiture petition, the temporary restraining order, the application for the seize and seal order, and notice of the hearing on the Commonwealth’s application for seize and seal order.
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5. At the [DATE OF HEARING] hearing, the Court granted the Commonwealth’s

application and issued a seize and seal order, which was subsequently executed by the

Philadelphia Police Department.

6. Respondent has made a prima facie showing of his or her legal claim to

ownership of the Property, and indicated that he or she will take reasonable measures to ensure

that no activity that would constitute a violation of the Controlled Substance, Drug, Device and

Cosmetic Act, 35 Pa. Cons. Stat. §§ 780-101 to -144 will occur at the Property subsequent to the

execution of this agreement.

7. The Commonwealth has advised Respondent that any activity that would

constitute a violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa. Cons.

Stat. §§ 780-101 to -144 occurring at the Property subsequent to the execution of this agreement

may result in the Commonwealth (a) applying for a new seize and seal order, and (b) arguing at

any trial on the merits that Respondent should not be entitled to the “innocent owner” defense set

forth at 42 Pa. Cons. Stat. § 6801(a)(6)(ii) and § 6802(j).

8. In light of the foregoing, the Commonwealth consents to vacatur of the seize and

seal order in this matter.

WHEREFORE, the Commonwealth, upon consent of the parties, requests an order:

(1) Vacating the [DATE OF ORDER], order authorizing the seizure and sealing of

the Property pending further litigation;

(2) Permitting Respondent(s) to re-enter and take possession of the Property; and

(3) Decreeing that all utility services that were in place at the time the prior order was

executed be reinstated.

____________________________ [RESPONDENT]

____________________________ PROSECUTOR

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[INSERT CAPTION] ORDER
Upon consideration of the Consent Motion to Vacate Order filed by the Commonwealth, it is this ___ day of [MONTH AND YEAR], by the Court of Common Pleas of Philadelphia County, ORDERED that:
1. The order dated [DATE], authorizing the Commonwealth to seize and seal the real property and improvements known as [INSERT ADDRESS] (“the Property”) BE, and the same hereby IS, VACATED;
2. The Commonwealth is directed promptly to UNSEAL the Property and to permit Respondent [NAME] to RE-ENTER AND REPOSSESS the Property; and
3. All utility services at the Property that were in place at the time of the prior order may be REINSTATED by Respondent [NAME].
BY THE COURT:
____________________________________ J.
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APPENDIX C [INSERT CAPTION] CONSENT MOTION FOR DISCONTINUANCE AND NOW, this [DATE], the COMMONWEALTH OF PENNSYLVANIA, through the Philadelphia District Attorney’s Office (“Commonwealth”), and [RESPONDENT] (“Respondent”) respectfully submit this consent motion for discontinuance, pursuant to Rule 229 of the Pennsylvania Rules of Civil Procedure. As support, the parties state as follows: 1. On [DATE], officers of the Philadelphia Police Department executed a [TYPE OF WARRANT] warrant at [ADDRESS] (“the Property”), during which [LIST PEOPLE ARRESTED] was/were arrested and [LIST SPECIFIC ITEMS SEIZED] was/were seized. 2. On [DATE], the Commonwealth commenced this action by filing a civilforfeiture petition against the Property, alleging that the Property was subject to forfeiture pursuant to the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. §§ 6801 et seq. 3. On [DATE], the Commonwealth filed [LIST OTHER MOTIONS FILED OR APPLICATIONS MADE]. 4. On [DATE], this Court granted [LIST RELIEF GRANTED AND/OR HEARING SCHEDULED]. 5. On [DATE], the Philadelphia Police Department [IF EX PARTE SEIZE AND SEAL, INDICATE EXECUTION] and the Commonwealth served the record title holder of the Property and any occupants with [LIST DOCUMENTS SERVED]. 6. [IF LIS PENDENS WAS FILED] The Commonwealth subsequently filed the temporary restraining order among the land records associated with the Property, which currently operates as a lis pendens (“lis pendens”).
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7. On [DATE], [LIST RELEVANT EVENTS AT COURT APPEARANCES (e.g., HEARINGS OR RULINGS ON SEALING APPLICATIONS, UNSEALING AGREEMENTS AND ORDERS)].
8. Respondent [NAME] has made a prima facie showing of his or her legal claim to the Property, and indicated that he or she will take reasonable measures to ensure that no activity that would constitute a violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa. Cons. Stat. §§ 780-101 to -144 will occur at the Property subsequent to the execution of this agreement.
9. In light of the foregoing, the Commonwealth consents to withdrawal of the civilforfeiture petition against the Property, to vacatur of all underlying orders, and to removal of the lis pendens.
WHEREFORE, the Commonwealth, upon consent of the parties, requests that this matter be discontinued and that [LIST PRIOR ORDERS] previously issued in this matter be vacated and the lis pendens removed.

____________________________ [RESPONDENT]

____________________________ PROSECUTOR

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[INSERT CAPTION] ORDER
Upon consideration of the Consent Motion for Discontinuance filed by the Commonwealth, it is this ___ day of [MONTH AND YEAR], by the Court of Common Pleas of Philadelphia County, ORDERED that:
1. This matter BE, and the same hereby IS, DISCONTINUED; 2. The [LIST ORDERS] issued [LIST DATES], BE, and the same hereby [IS/ARE], VACATED; and 3. The Commonwealth is DIRECTED, within five (5) business days, to take all necessary measures to removes the lis pendens associated with the underlying property from the land records associated with the property.
BY THE COURT: ____________________________________
J.
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APPENDIX D [INSERT CAPTION] CONSENT MOTION FOR DISCONTINUANCE AND NOW, this [DATE], the COMMONWEALTH OF PENNSYLVANIA, through the Philadelphia District Attorney’s Office (“Commonwealth”), and [RESPONDENT] (“Respondent”) respectfully submit this consent motion for discontinuance, pursuant to Rule 229 of the Pennsylvania Rules of Civil Procedure. As support, the parties state as follows: 1. On [DATE], officers of the Philadelphia Police Department seized [DESCRIBE PROPERTY SEIZED] (“the Vehicle”) incident to the arrest of [PERSON FROM WHOM SEIZED] [OR UPON EXECUTION OF A WARRANT AT SPECIFIED ADDRESS] based on conduct related to the alleged possession and/or distribution of illegal narcotics. 2. On [DATE], the Commonwealth commenced this action by filing a civilforfeiture petition against the Vehicle, alleging that the Vehicle was subject to forfeiture pursuant to the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. §§ 6801 et seq. 3. On [DATE], [LIST RELEVANT EVENTS AT COURT APPEARANCES, IF ANY]. 4. Respondent [NAME] has made a prima facie showing of his or her legal claim to the Vehicle, and has provided assurance that he or she will take reasonable measures to ensure that the Vehicle is not used to facilitate a subsequent violation of the Controlled Substances Forfeiture Act. 5. The parties agree [SET FORTH PERMISSIBLE TERMS OF AGREEMENT, SUCH AS SPLIT OF PROCEEDS, REIMBURSEMENT OF FEES].
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6. In light of the foregoing, the Commonwealth consents to withdrawal of the civilforfeiture petition and to return of the Vehicle to [RESPONDENT], subject to the requirements of the Philadelphia Police Department regarding [IF APPLICABLE] proof of identification, registration, insurance, and title.
WHEREFORE, the Commonwealth, upon consent of the parties, requests that this matter be discontinued.

____________________________ [RESPONDENT]

____________________________ PROSECUTOR

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Case 2:14-cv-04687-ER Document 91 Filed 07/29/15 Page 30 of 30 [INSERT CAPTION] ORDER
Upon consideration of the Consent Motion for Discontinuance filed by the Commonwealth, it is this ___ day of [MONTH AND YEAR], by the Court of Common Pleas of Philadelphia County, ORDERED that:
1. This matter BE, and the same hereby IS, DISCONTINUED; 2. [SPECIFY TERMS OF AGREEMENT]; and 3. Thereafter, the Commonwealth is DIRECTED promptly to return the Vehicle to Respondent, subject to the requirements of the Philadelphia Police Department regarding proof of identification, registration, insurance, and title.
BY THE COURT: ____________________________________
J.
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 Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 1 of 46

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SOUROVELIS, et al., Plaintiffs,

CIVIL ACTION No. 14-4687

v.

CITY OF PHILADELPHIA, et al.,

Defendants.

Order Granting Unopposed Motion to Certify Settlement Classes and Grant Final Approval of Settlement of Plaintiffs' First and
Second Claims for Relief and Dismissing Plaintiffs' First and Second Claims Without Prejudice

AND NOW, this 3rd day of November, 2015, after a

fairness hearing with counsel for the parties on November 2,

2015, it is hereby ORDERED that Plaintiffs' Unopposed Motion to

Certify Settlement Classes and Grant Final Approval of

Settlement of Plaintiffs' First and Second Claims for Relief,

ECF No. 102, is GRANTED as follows:

1. The Court certifies the following settlement

classes pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2) 1 :

1

Rule 23(a) provides that a class action may be

maintained only if:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and
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a. For purposes of the First Claim for Relief
in the Amended Complaint, ECF No. 40, the settlement class will
consist of all persons holding legal title to or otherwise
having a legal interest in real property against which an ex
adequately protect the interests of the class.
Fed. R. Civ. P. 23(a) (1)-(4)
Here, numerosity is satisfied because the classes of property owners potentially number in the thousands, making joinder impracticable. Mem. in Support of Pls.' Mot. 20, ECF No. 102-1. Commonality is also satisfied because numerous factual and legal issues are common to all class members--specifically, whether Defendants' policies and practices violate Due Process. Id. at 20. As the Third Circuit has stated, "injunctive actions by their very nature of ten present common questions" where "they do not also involve an individualized injury for the determination of damages awards." Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994). Next, the named plaintiffs' First and Second Claims are typical of the class because they arise out of Defendants' same course of conduct relating to the investigation and prosecution of civilforfeiture actions. Mem. in Support of Pls.' Mot. 33. Finally, the Court finds that the interests of the class will be adequately represented by the named plaintiffs and by Plaintiffs' counsel.
Where Rule 23(a) 's requirements are satisfied, the class must fit into one of the three categories of class actions contemplated by Rule 23(b). Applicable here, a class action may proceed under Rule 23(b) (2) if "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b). Rule 23(b) (2) 's requirements are satisfied because the named plaintiffs' seek declaratory and injunctive relief as to the First and Second Claims, which would benefit benefit the entire class. See Baby Neal, 43 F.3d at 58 (explaining that a Rule 23 (b) (2) class is "almost automatically satisfied in actions primarily seeking injunctive relief").
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parte "seize and seal" order is presently in effect, or will in the future be in effect.
b. For purposes of the Second Claim for Relief in the Amended Complaint, ECF No. 40, the settlement class will consist of all persons holding legal title to or otherwise having a legal interest in real or personal property against which a civil-forfeiture petition has been filed, or will in the future be filed, in the Court of Common Pleas of Philadelphia County and who entered into an unsealing agreement or a settlement agreement.
2. The Court appoints Christopher Sourovelis, Norys Hernandez, and Doila Welch as class representatives for Plaintiffs' First Claim for Relief. The Court appoints Christopher Sourovelis, Norys Hernandez, Doila Welch, and Nassir Geiger as class representatives for Plaintiffs' Second Claim for Relief.
3. The Court appoints the Institute for Justice as lead class counsel and David Rudovsky as local class counsel for Plaintiffs' First and Second Claims for Relief under Federal Rule of Civil Procedure 23(g) . 2

2

Under Rule 23(g), a court must consider:

(i)

the work counsel has done in

identifying

or

investigating

potential claims in the action;

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4. The Settlement Agreement is approved pursuant to Federal Rule of Civil Procedure 23(e) . 3 The full text of the

(ii) counsel's experience in handling

class

actions,

other

complex

litigation, and the types of claims

asserted in the action;

(iii) counsel's knowledge of the applicable law; and

(iv) the resources that counsel will commit to representing the class.

Fed. R. Civ. P. 23(g) (1) (A) (i)-(iv). The court may also consider other matters pertinent to counsel's ability to fairly and adequately represent the interests of the class. Id. at (1) (B).

Here, the class is represented by the Institute for Justice ("IFJ") and local counsel David Rudovsky. Plaintiffs' counsel avers that: (1) counsel "performed extensive pre-filing work to identify and investigate potential claims"; (2) IFJ is a nationwide, public interest law firm with substantial experience in constitutional challenges of this kind; (3) IFJ has substantial knowledge of the applicable law given its substantial experience with civil forfeiture cases; and (4) "Plaintiffs' counsel will devote sufficient resources to vigorously represent the class." Mem. in Support of Pls.' Mot. 22-23. The Court finds no concern with IFJ and Mr. Rudovsky's representation of the class.

3

Under Federal Rule of Civil Procedure 23(e), the

settlement of a class action requires court approval. Fed. R.

Civ. P. 23(e) (2). A district court may approve a settlement

agreement only "after a hearing and on finding that it is fair,

reasonable, and adequate." Id. The Third Circuit has enumerated

certain factors to consider in determining whether to grant

final approval of a class action settlement. Girsh v. Jepson,

521 F.2d 153, 157 (3d Cir. 1975). The factors include:

(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of
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establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation
See In re Prudential Ins. Co. Am. Sales Litig., 148 F.3d 283, 317 (3d Cir. 1998) (quoting Girsh, 521 F.2d at 157.
In light of the "sea-change in the nature of class actions," id. at 299, the Third Circuit has also identified a series of non-exclusive factors to consider for a "thoroughgoing analysis of settlement terms." Id. at 323 (listing the additional factors) . "While the Court must make findings as to the Girsh factors to approve a settlement as fair, reasonable, and adequate, the Prudential factors are illustrative of additional factors that may be useful even though they are not essential or inexorable depending upon the specific circumstances." Harlan v. Transworld Systems, Inc., No. 13-5882, 2015 WL 505400, at *7 (E.D. Pa. Feb. 6, 2015).
Here, the first Girsh factor favors approval because early settlement of two out of Plaintiffs' six claims for relief would reduce the complexity, expense, and duration of the litigation.
The second Girsh factor also favors approval because, after posting notice, no objections were received by counsel for the parties and no objections were filed with the Court. Mem. in Support of Pls.' Mot. 23, 26; see In re Rite Aid Corp. Secs. Litig., 396 F.3d 294, 305 (3d Cir. 2005) (holding that the district court did not abuse its discretion in finding the absence of substantial objections where only two out of 300,000 class members objected).
The third Girsh factor, on balance, favors approval. Although Plaintiffs did not conduct discovery with respect to their First and Second Claims, the parties engaged in motion practice for over one year and conducted substantial legal research. Id. at 28. As such, counsel "had an adequate understanding and appreciation of the strengths and weaknesses of Plaintiffs' case." In re Processed Egg Prods. Antitrust
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Litig., 284 F.R.D. 249, 271 (E.D. Pa. 2012). The fourth and fifth Girsh factors are neutral because the injunctive and declaratory relief sought in the Amended Complaint is largely mirrored in the Settlement Agreement. Mem. in Support of Pls.' Mot. 29; see, e.g., Kaplan v. Chertoff, No. 06-5304, 2008 WL 200108, at *11 (E.D. Pa. Jan. 24, 2008) (approving a settlement where the injunctive relief embodied in the proposed settlement was similar to the relief that would have been available if plaintiffs succeeded at trial) . Here, "there is no indication this case was brought in bad faith simply to generate attorneys' fees, or that the case is too weak to succeed under most circumstances." Ripley v. Sunoco, Inc., 287 F.R.D. 300, 312 (E.D. Pa. 2012).
The sixth Girsh factor is likewise neutral. Of course, "[c]lass certification is always conditional and may be reconsidered," Saunders v. Berks Credit & Collections, Inc., No. 00-3477, 2002 WL 1497374, at *12 (E.D. Pa. July 11, 2002). Here, however, "there is no apparent reason why the Court would decertify or modify the class at any time during the litigation." Ripley, 287 F.R.D. at 313.
The seventh Girsh factor "is concerned with whether [the defendant] could withstand a judgment for an amount significantly greater than the Settlement." In re Cendant Corp. Litig., 264 F.3d 201, 240 (3d Cir. 2001). This factor is neutral given the declaratory and injunctive nature of the relief sought for the First and Second Claims.
Finally, the eighth and ninth Girsh factors, which "ask whether the settlement is reasonable in light of the best possible recovery and the risks the parties would face if the case went to trial," Prudential, 148 F.3d at 322, are likewise neutral because the parties seek declaratory and injunctive relief. See Pastrana v. Lane, No. 08-468, 2012 WL 602141, at *5 (E.D. Pa. Feb. 24, 2012) (explaining that these factors are neutral where the "action was certified under Rule 23(b) (2) for injunctive relief").
One of the most pertinent Prudential factor asks whether any provision for attorneys' fees is reasonable. Prudential, 148 F.3d at 323. "In determining the appropriate amount of attorneys' fees to be paid to class counsel, the principal consideration is the success achieved by the plaintiffs under the terms of the settlement." Schwartz v. Dallas Cowboys Football, Ltd., 157 F. Supp. 2d 561, 578 (E.D.
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Settlement Agreement is attached hereto and made part of the Order. Under the terms of the Settlement Agreement:
a. Defendants City of Philadelphia, Mayor Michael A. Nutter, Police Commissioner Charles H. Ramsey (collectively, "City Defendants"), and the Philadelphia District Attorney's Office and District Attorney R. Seth Williams (collectively, "District Attorney Defendants") cannot seek an ex parte "seize and seal" order against real property under the Controlled Substances Forfeiture Act, except when all of the following circumstances are met: (1) prior approval of the application from a person specifically designated (and previously identified to Plaintiffs) by the Philadelphia District Attorney's Office before it is submitted to the Court of Common Pleas of Philadelphia County; (2) specific, particularized, and credible facts demonstrating that exigent circumstances exist under United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993); and (3) specific, particularized, and credible facts demonstrating that less restrictive measures are insufficient to protect the Commonwealth's interests in preventing the sale, destruction, or
Pa. 2001). Of course, the traditional multi-factorial assessment of attorneys' fees is not applicable here, where the settlement terms are non-monetary. However, this Court has stressed that any assessment and award of attorneys' fees should be made public, and the Settlement Agreement ensures such.
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continued unlawful use of the real property and that providing notice would jeopardize this interest.
i. Exigent circumstances include, but are not limited to, persistent illegal activity occurring at the property, after, on multiple occasions, (1) arrests have been made or search warrants have been executed, and (2) contraband has been discovered at the property during those arrests or executions of search warrants. Moreover, the mere fact that law enforcement observed controlled substances present at a property, that law enforcement observed controlled substances being sold or distributed at a property, that a property was purchased with criminal proceeds, or that a property is considered deteriorated does not constitute exigent circumstances. Further, conclusory allegations are insufficient to establish exigent circumstances and merely attaching a copy of any police report concerning the alleged criminal activity that serves as the predicate for civil forfeiture is insufficient to establish exigent circumstances.
b. The District Attorney Defendants must move to vacate any ex parte "seize and seal" order presently in effect on a property owner's home within thirty (30) days of the date of this Order. If--after vacatur of a prior order--the District Attorney Defendants determine that exigent circumstances are presented and less restrictive measures are inadequate, they
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must comply with the above-stated procedures to apply for a new

ex parte "seize and seal" order. If a property owner whose

property is currently subject to a "seize and seal" order is

represented by an attorney, and knowingly and voluntarily agrees

--in writing--to the continued sealing of his or her property,

the District Attorney Defendants may--within thirty (30) days of

the date of this Order--seek to reinstate the "seize and seal"

order after providing the property owner with proper notice and

presenting the petition to reinstate the "seize and seal" order

at a hearing before a judge of the Court of Common Pleas.

c. Within thirty (30) days of the date of this

Order, the District Attorney Defendants must provide notice to

civil-forfeiture respondents that have entered into an unsealing

agreement (an agreement allowing re-entry by homeowners after a

"seize and seal" order has been lifted) or a settlement

agreement (an agreement to withdraw a forfeiture petition) with

the following conditions--all of which are now void and

unenforceable--that the conditions no longer apply:

i.

Prospective waiver of statutory or

constitutional defenses or claims in any future proceedings,

including any condition providing for "automatic forfeiture";

ii. Restricting access to the property by

any relative, defined to include up to fifth-degree relatives;

iii.

Restricting access to the property by

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any non-relative, unless the non- relative has been convicted of distributing illegal controlled substances;
iv. Giving the Commonwealth the power to review, approve, or reject prospective lessees, tenants, buyers, residents, or transferees of the property;
v. Requiring property owners to screen or disclose personal information (including, but not limited to, social security numbers and dates of birth) about prospective lessees, tenants, buyers, residents, or transferees of the property.
d. In drafting the terms of unsealing agreements vacating prior ex parte "seize and seal" orders, and in drafting the terms of settlement agreements involving real property or vehicles, the District Attorney Defendants shall use, as templates, the model forms attached as appendices to the Settlement Agreement.
e. The District Attorney Defendants must produce the following documents on a rolling basis beginning thirty (30) days from the date of this Order and must complete production within sixty (60) days of the date of this Order:
i. All applications for ex parte "seize and seal" orders and related documents (including, but not limited to, supporting affidavits, the forfeiture petition, lis pendens, application for a temporary restraining order, and any court
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Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 11 of 46

orders) filed since August 11, 2012; and

ii.

All unsealing and settlement agreements

and corresponding forfeiture petitions and court orders filed since August 11, 2012.

f. For a period of eighteen (18) months from the date of this Order, the District Attorney Defendants must

produce to Plaintiffs the following documents on a monthly basis:

i.

The complete miscellaneous docket

report of the Court of Common Pleas of Philadelphia County in

all civil-forfeiture cases in which a "seize and seal" order is currently in place and all documents, with any attachments,

filed in these dockets, including but not limited to

applications for temporary restraining orders, lis pendens,

interrogatories, and responses to interrogatories;

ii. Any and all applications made in the Court of Common Pleas of Philadelphia County for a "seize and seal" order (whether filed ex parte or after notice) , including

all supporting documentation, affidavits, and police reports,

unless such production would be prohibited under Pennsylvania or federal law, in which case the District Attorney Defendants will provide redacted copies of the documentation, where appropriate, along with an explanation of why redaction is necessary;

iii. Any court order regarding an application

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for a "seize and seal" order;

iv.

The complete miscellaneous docket report

of the Court of Common Pleas of Philadelphia County of all civil-

forfeiture cases in which an unsealing agreement is executed and

all documents, with any attachments, filed in these dockets, including but not limited to applications for temporary

restraining orders, lis pendens, interrogatories, and responses

to interrogatories;

v.

Copies of all documents verifying that a

civil-forfeiture respondent has consented to a "seize and seal"

order and is represented by counsel, including but not limited to

all written agreements, all petitions to reinstate the "seize and

seal" order, and all orders issued thereunder;

vi. The complete miscellaneous docket report

of the Court of Common Pleas of Philadelphia County in all civil-

forfeiture cases in which a settlement agreement is executed and

all documents, with any attachments, filed in these dockets,

including but not limited to applications for temporary restraining orders, lis pendens, interrogatories, and responses to interrogatories;

vii.

All unsealing agreements entered into

between civil-forfeiture respondents and the District Attorney's

Office; and

viii. All settlement agreements entered into

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between civil-forfeiture respondents and the District Attorney's Office.
5. The Court retains jurisdiction over the Plaintiffs' First and Second Claims for Relief for a term of eighteen (18) months beginning on the date this Order is entered on the docket, but may extend the term of its jurisdiction based on a finding of substantial noncompliance. 4 A claim of substantial noncompliance can be made on the following grounds:
a. The District Attorney Defendants submitted an application for an ex parte "seize and seal" order to the Court of Common Pleas of Philadelphia County that was not supported by

4

A district court may expressly retain jurisdiction to

enforce the provisions of a private settlement agreement where

the agreement dismisses the litigation that the settlement

addresses. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 381-82 (1994). The Supreme Court in Kokkonen explained that

If the parties wish to provide for the court's enforcement of a dismissal-producing settlement agreement they can seek to do so. When the dismissal is pursuant to Federal Rule of Civil Procedure 4l(a) (2), which specifies that the action "shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper," the parties compliance with the terms of the settlement contract (or the court's "retention of jurisdiction" over the settlement contract) may, in the court's discretion, be one of the terms set forth in the order.

Id. at 381 (emphasis in original); accord, e.g., Shaffer v. GTE North, Inc., 284 F.3d 500, 503 (3d Cir. 2002) .
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exigent circumstances or necessity, as required under James Daniel Good;
b. The District Attorney Defendants executed an unsealing or settlement agreement that included any of the following unconstitutional conditions: (1) prospective waiver of statutory or constitutional defenses or claims in any future proceeding, including any condition providing for automatic forfeiture; (2) restricting access to the property by any relative; (3) restricting access to the property by any nonrelative who has not been convicted of distributing an illegal controlled substance; (4) giving the Commonwealth the prerogative to review, approve, or reject prospective lessees, tenants, buyers, residents, or transferees of the property; or (5) requiring property owners to screen or disclose personal information (including, but not limited to social security numbers and dates of birth) about prospective lessees, tenants, buyers, residents, or transferees of the property; or
c. The District Attorney Defendants executed an unsealing or settlement agreement containing any other condition on the exercise of constitutional rights where the civilforfeiture respondent was not represented by counsel.
6. The First and Second Claims for Relief in the Amended Complaint, ECF No. 40, are DISMISSED without prejudice pursuant to Fed. R. Civ. P. 4l(a) (2).
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7. Each named plaintiff as class representative has approved and agreed to the terms of the Settlement Agreement.
8. Individually, each of the City Defendants and the District Attorney has approved and agreed to the terms of the Settlement Agreement. Additionally, Seth Williams as District Attorney with the authority to bind the District Attorneys' Office, and Shelley Smith as City Solicitor for the City of Philadelphia Law Department with the authority to bind the City of Philadelphia, have approved and agreed to the terms of the Settlement Agreement.
9. Upon conclusion of the litigation, Plaintiffs may file a petition to recover reasonable attorneys' fees and costs as may be appropriate. Any agreement by the parties concerning the amount of fees to be recovered is subject to court approval. The amount of attorneys' fees requested by counsel and any amount approved by the Court shall be disclosed on the record.
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO, J.
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CaCsaese2:21:144-c-cvv-0-044668877--ER Doccuummeenntt110024-2 FFilieledd 1110//0340/155 PPaaggee11o6f o3f146
EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOS SOUROVELIS, DOILA WELCH, NORYS HERNANDEZ, and NASSIR GEIGER, on behalf of themselves and all others similarly situated,

Civil Action No. 2:14-cv-04687-ER

Plaintiffs,

Assigned to the Honorable Judge Robreno

VS.
CITY OF PHILADELPHIA; MICHAEL A. NUTTER, in his official capacity as Mayor of Philadelphia; PHILADELPHIA DISTRICT ATTORNEY'S OFFICE; R. SETH WILLIAMS, in his official capacity as District Attorney of Philadelphia; and CHARLES H. RAMSEY, in his official capacity as Commissioner of the Philadelphia Police Department;

Special Management Track

Defendants.

PROPOSED SETTLEMENT AGREEMENT FOR PLAINTIFFS' FIRST AND SECOND CLAIMS FOR RELIEF

Pursuant to Federal Rule of Civil Procedure 23(e), Plaintiffs Christos Sourovelis, Doila

Welch, Norys Hernandez, and Nassir Geiger ("Named Plaintiffs"), Defendants City of

Philadelphia, Mayor Michael A. Nutter, Police Commissioner Charles H. Ramsey (collectively,

"City Defendants"), and the Philadelphia District Attorney's Office and District Attorney R. Seth

Williams (collectively, "District Attorney Defendants") respectfully submit this proposed

settlement agreement to the Court for preliminary approval. This agreement is intended to set

forth the full and final terms by which the Named Plaintiffs, on behalf of themselves and all

members of the settlement classes defined herein, the City Defendants, and the District Attorney

Defendants settle and resolve the First and Second Claims for Relief set forth in Plaintiffs' First

Amended Class-Action Complaint.

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 18 of 46
I. INTRODUCTION WHEREAS, on August 11, 2014, Plaintiffs Sourovelis, Welch and Hernandez, owners of real property against which a civil-forfeiture petition had been filed in the Court of Common Pleas of Philadelphia County, commenced this class-action litigation challenging the constitutionality of specific policies and practices of the City Defendants and the District Attorney Defendants in prosecuting civil-forfeiture cases pursuant to the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. §§ 6801 et seq.; WHEREAS, on November 17, 2014, the Named Plaintiffs, including Nassir Geiger, an owner of personal property against which a civil-forfeiture petition had been filed in the Court of Common Pleas of Philadelphia County, filed a First Amended Class-Action Complaint ("Amended Complaint"); WHEREAS, Plaintiffs' First Claim for Relief in the Amended Complaint alleges that the following policies and practices of the Defendants related to applying for and obtaining ex parte "seize and seal" orders violate the Due Process Clause of the Fourteenth Amendment: (1) "[the] policy and practice of relying on 42 Pa. Cons. Stat. § 6802(f) and (g) to seize real property without first providing owners or residents of the property with notice and a meaningful opportunity to be heard"; (2) "the policy and practice ... [of] apply[ing] for ex parte orders to seize and seal real property without providing any particularized evidence that the order is needed to preserve the specific property for civil forfeiture or that providing notice will jeopardize the availability of the property for forfeiture"; (3) "the policy and practice of ... apply[ing] for ex parte orders to seize and seal real property without proffering any particularized evidence of exigent circumstances as defined by United States v. James Daniel Good Real Property, 510 U.S. 43 ( 1993)[,] and its progeny" ["James Daniel Good']; (4) "the
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policy and practice of ... treat[ing] mere possession or the single sale of controlled substances in
a particular real property as exigent circumstances warranting ex parte seizure"; and (5) "the policy and practice of ... apply[ing] for an ex parte order to seize and seal real property without
proffering any evidence that a temporary restraining order restricting transfer of the property or other less restrictive means will be insufficient to protect Defendants' interests during the
pendency of the civil-forfeiture proceedings" (Am. Comp!., ECF No. 40, iii! 243-47);
WHEREAS, the District Attorney Defendants dispute liability as to Plaintiffs' First Claim for Relief;
WHEREAS, Defendants represent that since on or about September 22, 2014, the District Attorney Defendants have not filed any applications for an ex parte "seize and seal" order;
WHEREAS, Plaintiffs' Second Claim for Relief in the Amended Complaint alleges that the following policies and practices of the Defendants related to conditions required by prosecutors in agreements to "unseal" real property following execution of an ex parte "seize and seal" order ("unsealing agreement"), or in agreements to withdraw a forfeiture petition against property ("settlement agreement"), violate the Due Process Clause of the Fourteenth Amendment: (1) "[the] policy and practice ofcompelling property owners to agree that if Defendants attempt to forfeit the property in the future, the property owner waives his or her rights to assert an innocent-owner defense under 42 Pa. Const. [Stat.] § 6802(j) or to assert a constitutional defense that forfeiture of the property would constitute an excessive fine"; and (2) "[the] policy and practice of compelling property owners to agree to bar specific individuals
from their property" (Am. Comp!. iii! 256-57);
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WHEREAS, the Amended Complaint further alleges that individual prosecutors within the Philadelphia District Attorney's Office have required, as conditions of an unsealing agreement or settlement agreement, that property owners subject "any prospective lessee, tenant, buyer or transferee of the property" to prior review by the Commonwealth; "[g]ive the Commonwealth power to reject any prospective lessee, tenant, buyer, or transferee;" and to "[s]creen prospective lessees, tenants, buyers, residents, or transferees of the property, including credit history and reference checks" (Am. Comp!.~ 144 (emphasis removed));
WHEREAS, the District Attorney's Office reviewed all settlement and unsealing agreements entered into since August 11, 2014, and compiled a representative list of conditions appearing in agreements involving real property and produced representative conditions in settlement agreements involving personal property;
WHEREAS, Defendants imposed similar conditions as part of settlement negotiations in forfeiture actions involving personal property, including, but not limited to, requiring that the respondent will not permit specific individuals to possess, use, or operate the seized vehicle and providing for the "automatic forfeiture" of the vehicle if it is "used in violation of the law";
WHEREAS, the District Attorney Defendants dispute liability as to Plaintiffs' Second Claim for Relief;
WHEREAS, Defendants represent that since on or about November 5, 2014, the District Attorney Defendants have not required property owners to waive any statutory or constitutional defense in any future civil-forfeiture proceeding as a condition of an unsealing agreement or settlement agreement;
WHEREAS, Defendants represent that since on or about March 16, 2015, the District Attorney Defendants have not required real property owners to agree to bar relatives from
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entering the property or residing together at the property as a condition of an unsealing or settlement agreement;
WHEREAS, Defendants represent that since April 1, 2015, the District Attorney Defendants have not required real property owners to give the Commonwealth power to prior review or reject any prospective lessees, tenants, buyers, residents, or transferees of the property or require property owners to screen prospective lessees, tenants, buyers, residents, or transferees of the property as conditions of unsealing agreements or settlement agreements;
WHEREAS, Defendants represent that since June 11, 2015, the District Attorney Defendants have neither required personal property owners to restrict specific individuals from using their property nor provided for the "automatic forfeiture" of personal property in the future as conditions ofa settlement agreement; and
WHEREAS, the Parties have engaged in settlement negotiations to resolve the First and Second Claims for Relief in the Amended Complaint,
IT IS HEREBY AGREED, by and among the Parties, as follows: II. TERMS OF AGREEMENT
A. DEFINITIONS In addition to terms identified and defined elsewhere in this Agreement, the following
terms will have the following meanings as used in this Agreement and its Appendices: 1. "Agreement" means this proposed settlement agreement on the First and Second
Claims for Relief in Plaintiffs' Amended Complaint. 2. "Controlled Substances Forfeiture Act" means 42 Pa. Cons. Stat. §§ 6801 and
6802.
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3. "Court" means the United States District Court for the Eastern District of

Pennsylvania, or United States District Judge Eduardo C. Robreno.

4. "District Attorney" means Philadelphia District Attorney R. Seth Williams and

any official successors during the term of this Agreement.

5. "District Attorney's Office" means the Office of the District Attorney of

Philadelphia, all of its divisions, subdivisions, and all of its agents and employees.

6. "Ex parte 'seize and seal' order" means an order of the Court of Common Pleas

of Philadelphia County, applied for by the Philadelphia District Attorney's Office, which

authorizes the seizure and sealing of real property without providing pre-seizure notice or an

opportunity to be heard before a judge.

7. "The Parties" means the Named Plaintiffs, the City Defendants, and the District

Attorney Defendants in Sourovelis v. City ofPhiladelphia, Civil Action No. 2:14-cv-04687-ER

(E.D.Pa.).

8. "Relative" means any person connected by blood, marriage, or adoption, up to

and including fifth-degree relatives, such as first cousins once removed and second cousins.

9. "Respondent" means any person who was in legal possession ofreal or personal

property at the time a civil-forfeiture petition against the property was filed and/or any person

who is the record title holder of the property subject to civil forfeiture.

B.

JURISDICTION AND VENUE

The Parties agree that this Court has jurisdiction over the Parties and the subject matter of

this action and that venue is proper. The Parties ask this Court to retain jurisdiction over the

First and Second Claims for Relief in the Amended Complaint for the duration of this Agreement

to ensure substantial compliance with its terms. The Parties agree that the Court may extend the

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Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 23 of 46
term of its jurisdiction based on a finding of substantial noncompliance with the terms of this Agreement.
C. EFFECTIVE DATE OF THE AGREEMENT
This Agreement will become effective on the date the Court finally approves, signs, and enters the Agreement ("effective date"). Beginning on the effective date, the Agreement will become binding on the Parties, their agents, and their successors.
D. CLASS CERTIFICATION
Without waiver or concession of any of their respective positions regarding class certification as to other counts of Plaintiffs' First Amended Complaint, the Parties stipulate to certification of the following settlement classes solely for purposes of this Agreement:
1. For purposes of the First Claim for Relief in the Amended Complaint, the settlement class will consist of all persons holding legal title to or otherwise having a legal interest in real property against which an ex parte "seize and seal" order is presently in effect, or will in the future be in effect.
2. For purposes of the Second Claim for Relief in the Amended Complaint, the settlement class will consist of all persons holding legal title to or otherwise having a legal interest in real or personal property against which a civil-forfeiture petition has been filed, or will in the future be filed, in the Court of Common Pleas of Philadelphia County and who entered into an unsealing agreement or a settlement agreement.
For purposes of this Agreement only, the settlement classes will be certified pursuant to Fed. R. Civ. P. 23(a) and (b)(2).
7

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 24 of 46

E.

GENERAL PROVISIONS

1. Applications for Ex Parte "Seize and Seal" Orders

The District Attorney Defendants shall not seek an ex parte "seize and seal" order against

any real property under the Controlled Substances Forfeiture Act, except when all of the

following circumstances are satisfied:

a. Prior Approval. Any application for an ex parte "seize and seal" order

will be approved in advance by a person specifically designated by the District

Attorney's Office, previously identified to Plaintiffs, before it is submitted to the Court of

Common Pleas of Philadelphia County. This designee will ensure that the application is

in accord with the terms of this Agreement.

b. Exigent Circumstances. Any application for an ex parte "seize and seal"

order will provide specific, particularized, and credible facts demonstrating that exigent

circumstances exist under James Daniel Good.

(1) Exigent circumstances include, but are not limited to, persistent

illegal activity occurring at the property, after, on multiple occasions, (i) arrests

have been made or search warrants have been executed, and (ii) contraband has

been discovered at the property during those arrests or executions of search

warrants.

(2) The mere fact that law enforcement observed controlled substances

present at a property, that law enforcement observed controlled substances being

sold or distributed at a property, that a property was purchased with criminal

proceeds, or that a property is considered deteriorated does not constitute exigent

circumstances.

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Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 25 of 46
(3) Conclusory allegations are insufficient to establish exigent circumstances.
(4) Merely attaching a copy of any police report concerning the alleged criminal activity that serves as the predicate for civil forfeiture is insufficient to establish exigent circumstances. c. Inadequacy of Less Restrictive Measures. An ex parte "seize and seal" order will not be submitted to the Court of Common Pleas of Philadelphia County unless the application also provides specific, particularized, and credible facts demonstrating that less restrictive measures are insufficient to protect the Commonwealth's interests in preventing the sale, destruction, or continued unlawful use of the real property.
(1) Any application for an ex parte "seize and seal" order based on the District Attorney's belief that such relief is necessary to protect the Commonwealth's interest in preventing the sale or destruction of the property will set forth specific, particularized, and credible facts showing that less restrictive measures (such as a !is pendens, restraining order, or bond) are insufficient to protect this interest and that providing notice to the owner or respondent would jeopardize this interest.
(2) Any application for an ex parte "seize and seal" order based on the District Attorney Defendants' belief that such relief is necessary to protect the Commonwealth's interest in preventing the continued unlawful use of the real property will set forth specific, particularized, and credible facts showing that law enforcement powers (such as execution of search and seizure warrants or arrest warrants) are insufficient to prevent ongoing illegal drug activity at the property
9

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 26 of 46
and that providing notice to the owner or respondent would jeopardize this interest. 2. Existing Ex Parte "Seize and Seal" Orders No later than thirty (30) days from execution of this Agreement, the District Attorney Defendants will move to vacate any ex parte "seize and seal" order presently in effect. If, after vacatur of a prior order, the District Attorney Defendants determine that exigent circumstances are presented and less restrictive measures are inadequate, they will comply with the abovestated procedures to apply for a new ex parte "seize and seal" order and will provide notice as specified in this Agreement. If a property owner, whose property is currently subject to a "seize and seal" order, is represented by counsel and knowingly and voluntarily agrees in writing to the continued sealing of his or her property, the District Attorney Defendants can, within thirty (30) days of the execution of this Agreement, seek to reinstate the "seize and seal" order after providing the property owner with proper notice and presenting the petition to reinstate the "seize and seal" order at a hearing before a judge of the Court of Common Pleas. 3. Unsealing Agreements a. The following conditions contained in an unsealing agreement entered into between the District Attorney Defendants and Respondents are void and will not be enforced by the Defendants:
(1) Prospective waiver of statutory or constitutional defenses or claims in any future proceedings, including any condition providing for automatic forfeiture;
(2) Restricting access to the property by any relative;
10

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 27 of 46
(3) Restricting access to the property by any non-relative, unless the non-relative has been convicted of distributing illegal controlled substances;
(4) Giving the Commonwealth the prerogative to review, approve, or reject prospective lessees, tenants, buyers, residents, or transferees of the property; and
(5) Requiring property owners to screen or disclose personal information (including, but not limited to, social security numbers and dates of birth) about prospective lessees, tenants, buyers, residents, or transferees of the property. Within thirty (30) days of execution of this Agreement, the District Attorney Defendants will provide notice to all Respondents who have entered into unsealing agreements containing such conditions, that such conditions no longer apply. b. In drafting the terms of an unsealing agreement vacating a prior ex parte "seize and seal" order, the District Attorney Defendants will use, as a template, the Model Unsealing Agreement, attached as Appendix A, to obtain a consent order vacating a prior ex parte "seize and seal" order and allowing the Respondent to re-enter and repossess the property. The Parties agree that the content of such agreements may vary depending upon the factual circumstances of a given case, but that in no event will such agreement contain conditions enumerated in Section E, paragraph 3a above. c. In drafting the terms of an unsealing agreement vacating a prior "seize and seal" order after notice and an opportunity for an adversarial hearing before a judge of the Court of Common Pleas of Philadelphia County, the District Attorney Defendants will use, as a template, the Model Unsealing Agreement, attached as Appendix B, to obtain a
11

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 28 of 46
consent order vacating the "seize and seal" order and allowing the Respondent to re-enter and repossess the property. The Parties agree that the content of such agreements may vary depending upon the factual circumstances of a given case, but that in no event will such agreement contain conditions enumerated in Section E, Paragraph 3a. 4. Settlement Agreements (Consent Motions for Discontinuance)
a. The following conditions contained in settlement agreements entered into between the District Attorney Defendants and Respondents are void and will not be enforced by the Defendants:
(1) Prospective waiver of statutory or constitutional defenses or claims in any future proceedings, including any condition providing for "automatic forfeiture";
(2) Restricting access to the property by any relative; (3) Restricting access to the property by any non-relative, unless the non-relative has been convicted of distributing illegal controlled substances; and (4) Giving the Commonwealth the prerogative to review, approve, or reject prospective lessees, tenants, buyers, residents, or transferees of the property; and (5) Requiring property owners to screen or disclose personal information (including, but not limited to, social security numbers and date of birth) about prospective lessees, tenants, buyers, residents, or transferees of the property. Within thirty (30) days of execution of this Agreement, the District Attorney Defendants will provide notice to all Respondents who have entered into
12

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 29 of 46

settlement agreements containing such conditions that the conditions no longer

apply.

b. In drafting the terms of a settlement agreement involving real property, the

District Attorney Defendants will use, as a template, the Model Consent Motion for

Discontinuance, attached as Appendix C. The Parties agree that the content of such

consent motions may vary depending upon the factual circumstances of a given case, but

that in no event will such consent motions contain any condition enumerated in Section

E, Paragraph 4a.

c. In drafting the terms of a settlement agreement involving a vehicle, the

District Attorney Defendants will use, as a template, the Model Consent Motion for

Discontinuance, attached as Appendix D. The Parties agree that the content of such

consent motions may vary depending on the factual circumstances of a given case, but

that in no event will such consent motions contain any condition enumerated in Section

E, Paragraph 4a.

F.

NOTICE

1. The District Attorney Defendants agree to produce the following

documents on a rolling basis beginning thirty (30) days from the execution of this

Agreement and to complete production within sixty (60) days of the execution of this

Agreement:

a. All applications for ex parte "seize and seal" orders and related

documents (including, but not limited to, supporting affidavits, the forfeiture

petition, !is pendens, application for a temporary restraining order, and any court

orders) filed since August 11, 2012.

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Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 30 of 46
b. All unsealing and settlement agreements and corresponding forfeiture petitions and court orders filed since August 11, 2012. 2. Additionally, for a period of eighteen (18) months from the effective date, the District Attorney Defendants will produce to Plaintiffs the following documents on a monthly basis:
a. The complete miscellaneous docket report of the Court of Common Pleas of Philadelphia County in all civil-forfeiture cases in which a "seize and seal" order is currently in place;
b. All documents, with any attachments, filed in the miscellaneous docket in the Court of Common Pleas of Philadelphia County in the civilforfeiture actions referenced in Section F, Paragraph 2a, including but not limited to applications for temporary restraining orders, /is pendens, interrogatories, and responses to interrogatories;
c. Any and all applications made in the Court of Common Pleas of Philadelphia County for a "seize and seal" order (whether filed ex parte or after notice), including all supporting documentation, affidavits, and police reports, unless such production would be prohibited under Pennsylvania or federal law, in which case the District Attorney Defendants will provide redacted copies of the documentation, where appropriate, along with an explanation of why redaction is necessary;
d. Any court order regarding an application for a "seize and seal" order;
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Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 31 of 46

e. The complete miscellaneous docket report of the Court of

Common Pleas of Philadelphia County of all civil-forfeiture cases in which an

unsealing agreement is executed;

f.

All documents, with any attachments, filed in the miscellaneous

docket in the Court of Common Pleas of Philadelphia County in forfeiture actions

referenced in Section F, Paragraph 2e, including but not limited to applications

for temporary restraining orders, !is pendens, interrogatories, and responses to

interrogatories;

g. Copies of all documents verifying that a Respondent has consented

to a "seize and seal" order and is represented by counsel, including but not

limited to all written agreements, all petitions to reinstate the "seize and seal"

order, and all orders issued thereunder;

h. The complete miscellaneous docket report of the Court of

Common Pleas of Philadelphia County in all civil-forfeiture cases in which a

settlement agreement is executed;

i. All documents, with any attachments, filed in the miscellaneous

docket in the Court of Common Pleas of Philadelphia County in forfeiture actions

referenced in Section F, Paragraph 2h, including but not limited to applications

for temporary restraining orders, !is pendens, interrogatories, and responses to

interrogatories.

j.

All unsealing agreements entered into between Respondents and

the District Attorney's Office; and

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Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 32 of 46
k. All settlement agreements entered into between Respondents and the District Attorney's Office. G. COMPLIANCE This Court retains jurisdiction over the First and Second Claims for Relief in the Amended Complaint for eighteen (18) months after the effective date, but may extend the term of its jurisdiction based on a finding of substantial noncompliance. If Plaintiffs believe there has been substantial noncompliance with any material provision of the Agreement, the Parties agree to the following procedure to resolve any dispute: 1. A claim of substantial noncompliance can be made on the following grounds: a. the District Attorney Defendants submitted an application for an ex parte "seize and seal" order to the Court of Common Pleas of Philadelphia County that was not supported by exigent circumstances or necessity, as required under James Daniel Good; b. the District Attorney Defendants executed an unsealing or settlement agreement that included any of the following unconstitutional conditions: (1) prospective waiver of statutory or constitutional defenses or claims in any future proceeding, including any condition providing for automatic forfeiture; (2) restricting access to the property by any relative; (3) restricting access to the property by any non-relative who has not been convicted of distributing an illegal controlled substance; (4) giving the Commonwealth the prerogative to review, approve, or reject prospective lessees, tenants, buyers, residents, or transferees of the property; or (5) requiring property owners to screen or disclose personal information (including, but not limited to social security numbers and dates of birth) about prospective lessees, tenants, buyers, residents, or transferees of the property; or
16

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 33 of 46
c. the District Attorney Defendants executed an unsealing or settlement agreement containing any other condition on the exercise of constitutional rights where the Respondent was not represented by counsel. 2. Plaintiffs will confer with the District Attorney's Office over any claim of substantial noncompliance and the Parties will attempt to resolve any such claim in good faith. 3. Ifthe Parties are unable to resolve any claim of substantial noncompliance through this initial conference, Plaintiffs will submit a written Notice of Substantial Noncompliance to the City Defendants and the District Attorney Defendants, specifying their basis for believing there has been substantial noncompliance. 4. The City Defendants and the District Attorney Defendants will respond, in writing, to any such Notice of Substantial Noncompliance within thirty (30) days. 5. Within fourteen (14) days after Defendants' service of their written responses on Plaintiffs, the Parties will again meet and confer to attempt to resolve the dispute in good faith without seeking court intervention. 6. In the event the Parties are unable to resolve the dispute, any party may petition the Court to order specific performance of the Agreement. 7. The prevailing party on a claim of substantial noncompliance may petition the Court to extend the noticing period and may seek an award ofreasonable attorneys' fees and costs associated with drafting and litigating the Notice of Substantial Noncompliance. H. ATTORNEY FEES AND COSTS Except as expressly provided herein, no party may petition the Court to recover attorneys' fees or costs associated with enforcing this Agreement, including any fees or costs associated with the notice provisions. Nothing in this Agreement, however, will preclude a party from filing a petition to recover attorneys' fees or costs resulting from prior litigation of Plaintiffs' First and Second Claims for Relief in Plaintiffs' Complaint or Amended Complaint. The amount of any attorneys' fees and costs paid to Plaintiffs will be made public.
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Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 34 of 46

I.

RESERVATIONS AND LIMITATIONS

Plaintiffs reserve the right to challenge any condition contained in future unsealing or

settlement agreements that are not contained in agreements reviewed as part of this settlement

agreement as an unconstitutional condition.

Dated this 29th day of July, 2015.

Respectfully submitted,

For Plaintiffs

For the City Defendants

By: Isl Darpana M. Sheth
INSTITUTE FOR JUSTICE
William H. Mellor* Scott G. Bullock* Darpana M. Sheth* Robert P. Frommer* 901 North Glebe Road, Suite 900 Arlington, VA 22203 Tel: (703) 682-9320 Fax: (703) 682-9321 E-mail: wmellor@ijorg; sbullock@ij.org; dsheth@ij.org; rfrommer@ij.org Admitted Pro Hae Vice
Lead Counsel for Plaintiffs
KAIRYS, RUDOVSKY,MESSING &FEINBERG
David Rudovsky (l.D. Number 15168) The Cast Iron Building 718 Arch Street Suite 501 South Philadelphia, PA 19106 Tel: (215) 925-4400 Email: drudovsky@krlawphila.com
Local Counsel for Plaintiffs

By: Isl Shelley Smith
CITY SOLICITOR CITY OF PHILADELPHIA LAW DEPARTMENT
Shelley Smith 1515 Arch Street, 17th Floor Philadelphia, PA 19102 Counsel for Defendants City ofPhiladelphia, Mayor Michael A. Nutter, and Police Commissioner Charles H Ramsey
For the District Attorney Defendants
By: Isl R. Seth Williams District Attorney R. Seth Williams
By: Isl Bryan C. Hughes
OFFICE OF THE DISTRICT ATTORNEY
Elizabeth J. Rubin Bryan C. Hughes Douglas M. Weck, Jr. Three South Penn Square Philadelphia, PA 19107 Tel: (215) 686-8787 Email: bj.graham-rubin@phila.gov; bryan.hughes@phila.gov; douglas.weck@phila.gov
Counsel for Defendants Philadelphia District Attorney's Office and District Attorney R. Seth Williams

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Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 35 of 46
APPENDIX A [INSERT CAPTION] CONSENT MOTION TO VACATE ORDER AND NOW, this [DATE], the COMMONWEALTH OF PENNSYLVANIA, through the Philadelphia District Attorney's Office ("Commonwealth") and [RESPONDENT] ("Respondent") respectfully submit this consent motion to vacate the [DATE OF ORDER], order of this Court authorizing the preliminary seizure and sealing of the subject property. As support, the parties state as follows: 1. On [DATE], the Commonwealth commenced this action by filing a civilforfeiture petition against the real property and improvements known as [INSERT ADDRESS] ("the Property"), alleging that the Property was subject to forfeiture pursuant to the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. §§ 6801 et seq. 2. On [DATE], the Commonwealth applied ex parte for an order authorizing the preliminary seizure and sealing of the Property ("seize and seal order") and separately moved for a temporary restraining order prohibiting the transfer of any interest in the Property pending further litigation in this action. 3. On [DATE], this Court granted the Commonwealth's motion for temporary restraining order and issued a seize and seal order. 4. On [DATE], officers of the Philadelphia Police Department executed the seize and seal order and served any occupants with the forfeiture petition, the application for the seize and seal order, the seize and seal order itself, the temporary restraining order, and notice of a prompt post-deprivation hearing.
1

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 36 of 46

5. On [DATE], the Commonwealth served the foregoing documents on the record title holder of the Property.
6. On [DATE], Respondent appeared in court, made aprimafacie showing of his or her legal claim to ownership of the Property, and indicated that he or she will take reasonable measures to ensure that no activity that would constitute a violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa. Cons. Stat.§§ 780-101 to -144 will occur at the Property subsequent to the execution of this agreement.
7. The Commonwealth has advised Respondent that any activity that would constitute a violation of the Controlled Substances, Drug, Device and Cosmetic Act, 35 Pa. Cons. Stat. §§ 780-101 to -144 occurring at the Property subsequent to the execution of this agreement may result in the Commonwealth (a) applying for a new seize and seal order, and (b) arguing at any trial on the merits that Respondent should not be entitled to the "innocent owner" defense set forth at 42 Pa. Cons. Stat.§ 6801(a)(6)(ii) and§ 6802G).
8. In light of the foregoing, the Commonwealth consents to vacatur of the seize and seal order in this matter.
WHEREFORE, the Commonwealth, upon consent of the parties, requests an order: (1) Vacating the [DATE OF ORDER], order authorizing the seizure and sealing of the Property pending further litigation; (2) Permitting Respondent(s) to re-enter and take possession of the Property; and (3) Decreeing that all utility services that were in place at the time the prior order was executed be reinstated.

[RESPONDENT]

PROSECUTOR

2

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 37 of 46
[INSERT CAPTION] ORDER
Upon consideration of the Consent Motion to Vacate Order filed by the Commonwealth, it is this_ day of [MONTH AND YEAR], by the Court of Common Pleas of Philadelphia County, ORDERED that:
1. The order dated [DATE], authorizing the Commonwealth to seize and seal the real property and improvements known as [INSERT ADDRESS] ("the Property") BE, and the same hereby IS, VACATED;
2. The Commonwealth is directed promptly to UNSEAL the Property and to permit Respondent [NAME] to RE-ENTER AND REPOSSESS the Property; and
3. All utility services at the Property that were in place at the time of the prior order may be REINSTATED by Respondent [NAME].
BY THE COURT:
J.
3

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 38 of 46
APPENDIXB [INSERT CAPTION] CONSENT MOTION TO VACATE ORDER AND NOW, this [DATE], the COMMONWEALTH OF PENNSYLVANIA, through the Philadelphia District Attorney's Office ("Commonwealth") and [RESPONDENT] ("Respondent") respectfully submit this consent motion to vacate the [DATE OF ORDER], order of this Court authorizing the preliminary seizure and sealing of the subject property. As support, the parties state as follows: 1. On [DATE], the Commonwealth commenced this action by filing a civilforfeiture petition against the real property and improvements known as [INSERT ADDRESS] ("the Property"), alleging that the Property was subject to forfeiture pursuant to the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. §§ 6801 et seq. 2. On [DATE], the Commonwealth submitted an application for an order authorizing the preliminary seizure and sealing of the Property ("seize and seal order"), and separately moved for a temporary restraining order prohibiting the transfer of any interest in the Property pending further litigation in this action. 3. On [DATE], this Court granted the Commonwealth's motion for temporary restraining order and scheduled a hearing on the application for seize and seal order on [DATE]. 4. On [DATE], the Commonwealth served the record title holder of the Property, all occupants, and Respondent with the forfeiture petition, the temporary restraining order, the application for the seize and seal order, and notice of the hearing on the Commonwealth's application for seize and seal order.

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 39 of 46

5. At the [DATE OF HEARING] hearing, the Court granted the Commonwealth's application and issued a seize and seal order, which was subsequently executed by the Philadelphia Police Department.
6. Respondent has made a prima facie showing of his or her legal claim to ownership of the Property, and indicated that he or she will take reasonable measures to ensure that no activity that would constitute a violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa. Cons. Stat.§§ 780-101 to -144 will occur at the Property subsequent to the execution of this agreement.
7. The Commonwealth has advised Respondent that any activity that would constitute a violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa. Cons. Stat. §§ 780-101 to -144 occurring at the Property subsequent to the execution of this agreement may result in the Commonwealth (a) applying for a new seize and seal order, and (b) arguing at any trial on the merits that Respondent should not be entitled to the "innocent owner" defense set forth at 42 Pa. Cons. Stat. § 6801(a)(6)(ii) and§ 68020).
8. In light of the foregoing, the Commonwealth consents to vacatur of the seize and seal order in this matter.
WHEREFORE, the Commonwealth, upon consent of the parties, requests an order: (1) Vacating the [DATE OF ORDER], order authorizing the seizure and sealing of the Property pending further litigation; (2) Permitting Respondent(s) to re-enter and take possession of the Property; and (3) Decreeing that all utility services that were in place at the time the prior order was executed be reinstated.

[RESPONDENT]

PROSECUTOR 2

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 40 of 46
[INSERT CAPTION] ORDER
Upon consideration of the Consent Motion to Vacate Order filed by the Commonwealth, it is this _ day of [MONTH AND YEAR], by the Court of Common Pleas of Philadelphia County, ORDERED that:
1. The order dated [DATE], authorizing the Commonwealth to seize and seal the real property and improvements known as [INSERT ADDRESS] ("the Property") BE, and the same hereby IS, VACATED;
2. The Commonwealth is directed promptly to UNSEAL the Property and to permit Respondent [NAME] to RE-ENTER AND REPOSSESS the Property; and
3. All utility services at the Property that were in place at the time of the prior order may be REINSTATED by Respondent [NAME].
BY THE COURT:
J.
3

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 41 of 46
APPENDIXC [INSERT CAPTION] CONSENT MOTION FOR DISCONTINUANCE AND NOW, this [DATE], the COMMONWEALTH OF PENNSYLVANIA, through the Philadelphia District Attorney's Office ("Commonwealth"), and [RESPONDENT] ("Respondent") respectfully submit this consent motion for discontinuance, pursuant to Rule 229 of the Pennsylvania Rules of Civil Procedure. As support, the parties state as follows: 1. On [DATE], officers of the Philadelphia Police Department executed a [TYPE OF WARRANT] warrant at [ADDRESS] ("the Property"), during which [LIST PEOPLE ARRESTED] was/were arrested and [LIST SPECIFIC ITEMS SEIZED] was/were seized. 2. On [DATE], the Commonwealth commenced this action by filing a civilforfeiture petition against the Property, alleging that the Property was subject to forfeiture pursuant to the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. §§ 6801 et seq. 3. On [DATE], the Commonwealth filed [LIST OTHER MOTIONS FILED OR APPLICATIONS MADE]. 4. On [DATE], this Court granted [LIST RELIEF GRANTED AND/OR HEARING SCHEDULED]. 5. On [DATE], the Philadelphia Police Department [IF EX PARTE SEIZE AND SEAL, INDICATE EXECUTION] and the Commonwealth served the record title holder of the Property and any occupants with [LIST DOCUMENTS SERVED]. 6. [IF LIS PENDENS WAS FILED] The Commonwealth subsequently filed the temporary restraining order among the land records associated with the Property, which currently operates as a !is pendens ("!is pendens").

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 42 of 46
7. On [DATE], [LIST RELEVANT EVENTS AT COURT APPEARANCES (e.g., HEARINGS OR RULINGS ON SEALING APPLICATIONS, UNSEALING AGREEMENTS AND ORDERS)].
8. Respondent [NAME] has made a prima facie showing of his or her legal claim to the Property, and indicated that he or she will take reasonable measures to ensure that no activity that would constitute a violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa. Cons. Stat.§§ 780-101 to -144 will occur at the Property subsequent to the execution of this agreement.
9. In light of the foregoing, the Commonwealth consents to withdrawal of the civilforfeiture petition against the Property, to vacatur of all underlying orders, and to removal of the /is pendens.
WHEREFORE, the Commonwealth, upon consent of the parties, requests that this matter be discontinued and that [LIST PRIOR ORDERS] previously issued in this matter be vacated and the !is pendens removed.

[RESPONDENT]

PROSECUTOR

2

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 43 of 46
[INSERT CAPTION] ORDER
Upon consideration of the Consent Motion for Discontinuance filed by the Commonwealth, it is this_ day of [MONTH AND YEAR], by the Court of Common Pleas of Philadelphia County, ORDERED that:
1. This matter BE, and the same hereby IS, DISCONTINUED; 2. The [LIST ORDERS] issued [LIST DATES], BE, and the same hereby [IS/ARE], VACATED; and 3. The Commonwealth is DIRECTED, within five (5) business days, to take all necessary measures to removes the !is pendens associated with the underlying property from the land records associated with the property.
BY THE COURT:
J.
3

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 44 of 46
APPENDIXD [INSERT CAPTION] CONSENT MOTION FOR DISCONTINUANCE AND NOW, this [DATE], the COMMONWEALTH OF PENNSYLVANIA, through the Philadelphia District Attorney's Office ("Commonwealth"), and [RESPONDENT] ("Respondent") respectfully submit this consent motion for discontinuance, pursuant to Rule 229 of the Pennsylvania Rules of Civil Procedure. As support, the parties state as follows: 1. On [DATE], officers of the Philadelphia Police Department seized [DESCRIBE PROPERTY SEIZED] ("the Vehicle") incident to the arrest of [PERSON FROM WHOM SEIZED] [OR UPON EXECUTION OF A WARRANT AT SPECIFIED ADDRESS] based on conduct related to the alleged possession and/or distribution of illegal narcotics. 2. On [DATE], the Commonwealth commenced this action by filing a civilforfeiture petition against the Vehicle, alleging that the Vehicle was subject to forfeiture pursuant to the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. §§ 6801 et seq. 3. On [DATE], [LIST RELEVANT EVENTS AT COURT APPEARANCES, IF ANY]. 4. Respondent [NAME] has made aprimafacie showing of his or her legal claim to the Vehicle, and has provided assurance that he or she will take reasonable measures to ensure that the Vehicle is not used to facilitate a subsequent violation of the Controlled Substances Forfeiture Act. 5. The parties agree [SET FORTH PERMISSIBLE TERMS OF AGREEMENT, SUCH AS SPLIT OF PROCEEDS, REIMBURSEMENT OF FEES].
1

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 45 of 46
6. In light of the foregoing, the Commonwealth consents to withdrawal of the civilforfeiture petition and to return of the Vehicle to [RESPONDENT], subject to the requirements of the Philadelphia Police Department regarding [IF APPLICABLE] proof of identification, registration, insurance, and title.
WHEREFORE, the Commonwealth, upon consent of the parties, requests that this matter be discontinued.

[RESPONDENT]

PROSECUTOR

2

Case 2:14-cv-04687-ER Document 104 Filed 11/04/15 Page 46 of 46
[INSERT CAPTION] ORDER
Upon consideration of the Consent Motion for Discontinuance filed by the Commonwealth, it is this_ day of [MONTH AND YEAR], by the Court of Common Pleas of Philadelphia County, ORDERED that:
1. This matter BE, and the same hereby IS, DISCONTINUED; 2. [SPECIFY TERMS OF AGREEMENT]; and 3. Thereafter, the Commonwealth is DIRECTED promptly to return the Vehicle to Respondent, subject to the requirements of the Philadelphia Police Department regarding proof of identification, registration, insurance, and title.
BY THE COURT:
J.
3

 
 Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 1 of 75

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOS SOUROVELIS, DOILA WELCH, NORYS HERNANDEZ, and NASSIR GEIGER, on behalf of themselves and all others similarly situated,

FILED

Plaintiffs,

vs.

CITY OF PHILADELPHIA;

JAMES F. KENNEY, in his official capacity as Mayor of Philadelphia;
RICHARD ROSS JR., in his official capacity as Commissioner of the Philadelphia Police Department;
PHILADELPHIA DISTRICT ATTORNEY'S OFFICE;
R. SETH WILLIAMS, in his official capacity as District Attorney of Philadelphia;
SHEILA A. WOODS-SKIPPER, in her official capacity as Chair of the Administrative Governing Board of the First Judicial District of Pennsylvania;

Assigned to the Honorable Judge Robreno
Special Management Track
SECOND AMENDED CLASS-ACTION COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF
COMPLAINT-CLASS ACTION

JACQUELINE F. ALLEN, in her official capacity as a member of the Administrative Governing Board of the First Judicial District of Pennsylvania;

JOSEPH H. EVERS, in his official capacity as Court Administrator of the First Judicial District of Pennsylvania; and

CHARLES A. MAPP, in his official capacity as Chief Deputy Court Administrator of the First Judicial District of Pennsylvania;

Defendants.

Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 2 of 75

TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

JURISDICTION ..............................................................................................................................3

VENUE ............................................................................................................................................3

TIIE PARTIES.................................................................................................................................4

I.

THE PLAINTIFFS ........................................................................................................4

IL

THEDEFENDANTS .....................................................................................................6

FACTUAL ALLEGATIONS ........................................................................................................ 10

I.

PENNSYLVANIA'S CONTROLLED SUBSTANCES FORFEITURE ACT ........................... 10

II.

PHILADELPHIA'S FORFEITURE PROGRAM IS UNPRECEDENTED IN SCALE ................ 14

A. The City and District Attorney Defendants Seize Large Quantities of Personal Property for Forfeiture ...............................................................18

B. The City and District Attorney Defendants Seize and Restrain Numerous Real Properties for Forfeiture ...................................................................20

III. THIS HIGH VOLUME OF FORFEITURE IS ENABLED BY PHILADELPHIA'S ROBO-
FORFEITURE MACHINE............................................................................................21
A. Philadelphia's Forfeiture Machine Uses an Automated Assembly-Line System to Maximize Petitions for Forfeiture, and Ultimately Revenue .....22
B. The Creation of "Courtroom" 478 ............................................................25
C. The Legal Rabbit Hole of "Courtroom" 478.......................~ .....................27
D. Despite Incremental Reforms, Constitutional Violations Remain .............30

IV. THE NAMED PLAINTIFFS GET ENSNARED IN PHILADELPHIA'S "Roso-FORFEITURE" MACHINE ................................................................................................................33
A. Named Plaintif!Christos "Chris" Sourovelis ...............................33
B. Named PlaintiffDoila Welch .........................................................41

Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 3 of 75
Page C. Named PlaintiffNorys Hernandez .................................................46 D. Named PlaintiffNassir Geiger.......................................................48 E. PlaintiffMembers of the Putative Class ........................................51 CLASS ACTION ALLEGATIONS ..............................................................................................53 CONSTITUTIONAL VIOLATIONS ............................................................................................55 FIRST CLAIM ASSERTED AGAINST THE CITY AND DISTRICT ATTORNEY DEFENDANTS..•... .55 SECOND CLAIM ASSERTED AGAINST THE CITY AND DISTRICT ATTORNEY DEFENDANTS...58 THIRD CLAIM ASSERTED AGAINST ALL DEFENDANTS ....•.•.......................•........................61 FOURTH CLAIM ASSERTED AGAINST ALL DEFENDANTS ...................................•................63
FIFTH CLAIM ASSERTED AGAINST THE CITY AND DISTRICT ATTORNEY DEFENDANTS ......64 SIXTH CLAIM ASSERTED AGAINST ALL DEFENDANTS .. ~ .....................................................66 SEVENTH CLAIM ASSERTED AGAINST ALL DEFENDANTS ...................................................67 REQUEST FOR RELIEF ..............................................................................................................68
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INTRODUCTION 1. This civil-rights lawsuit challenges the constitutionality of Philadelphia's forfeiture program, one of the largest municipal forfeiture programs in the country. Named Plaintiffs Christos Sourovelis, Doila Welch, Norys Hernandez, and Nassir Geiger are Philadelphia property owners who seek primarily injunctive and declaratory relief on behalf of themselves and all others similarly situated for violations of their due-process rights under the Fourteenth Amendment. 2. Under an increasingly controversial legal device known as civil forfeiture, Philadelphia law enforcement has been summarily confiscating. property from its residents under the fiction that the property itself is "guilty" of a crime. Even if the owner of the property has no involvement or even knowledge of the alleged crime, the Philadelphia District Attorney's Office sues the property in civil actions (with unusual names like Commonwealth v. 12011 Ferndale Street and Commonwealth v. 2000 Buick and Contents) and requires property owners to affirmatively prove their innocence. Should the Philadelphia District Attorney's Office win the lawsuit against the property, it retains the property or proceeds from its sale for the office's own use, giving it a direct financial interest in the outcome of the proceedings. 3. While Pennsylvania law authorizes civil forfeiture, Philadelphia has turned this tool into a veritable machine, devouring real and personal property from thousands of residents, many of whom are innocent, and converting that property into a $5 .6 million average annual stream of revenue. Using a rigged system of copied "form" legal documents and endless proceedings in a courtroom run by the prosecutors themselves, Philadelphia's "robo-forfeiture" program stripped thousands of City residents of over 1,200 residences, 3,500 vehicles, and $50 million in cash over a thirteen-year period, ultimately raking in more than $72 million in revenue. This is more
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than 18 percent of the general budget of the Philadelphia D.A.'s Office-funds that are wholly outside the oversight of the City Council.
4. Plaintiffs bring this class action to declare unconstitutional and enjoin the following seven policies and practices, which deprive people not only of their property, but of their rights to due process of law:
(i) The policy and practice of the City and District Attorney's Office of applying for and executing ex parte seizures of homes and other real properties without providing any evidence of exigent circumstances or necessity to justify proceeding without affording affected owners notice or an opportunity to be heard;
(ii) The policy and practice of the City and District Attorney's Office of requiring real property owners to waive their statutory and constitutional rights in order to be let back into their property or have the forfeiture case dismissed;1
(iii) The policy and practice of the City, the District Attorney's Office, and the First Judicial District of failing to provide property owners with a prompt, post-deprivation hearing before a neutral arbiter where those owners may contest the basis for the seizure, restraint, or indefinite retention of their property pending an ultimate hearing on the merits;
(iv) The policy and practice of the City, the District Attorney's Office, and the First Judicial District of repeatedly "relisting" civil-forfeiture proceedings, which forces property owners to appear in person for these proceedings over and over again or else permanently lose their property through a default judgment;
(v) The policy and practice of the City and District Attorney's Office of retaining forfeited property and its proceeds for use by the Philadelphia District Attorney's
1 On November 4, 2015, the Court approved a class-wide settlement agreement that stopped these first two policies and practices. (Order, ECF No. 104.)
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Office and the Philadelphia Police Depaitmerit; (vi) The policy and practice of the City, the District Attorney's Office, and the
First Judicial District of having prosecutors and employees of the Philadelphia District Attorney's Office control "hearings" in Courtroom 478; and
(vii) The policy and practice of the City, the District Attorney's Office, and the First Judicial District denying property owners of due process in how forfeiture and related proceedings are conducted.
.JURISDICTION 5. Plaintiffs bring this class-action, civil-rights lawsuit pursuant to 42 U.S.C. § 1983 for violations of their rights under the Due Process Clause of the Fourteenth Amendment; 42 U.S.C. § 1988; and the Declaratory Judgments Act, 28 U.S.C. §§ 2201, 2202. Plaintiffs seek injunctive and declaratory relief against Defendants' policies and practices concerning civil forfeiture. 6. Accordingly, this Court has jurisdiction over this action under 28 U.S.C. §§ 1331 (federal-question jurisdiction) and 1343 (civil-rights jurisdiction).
VENUE 7. Venue is proper in the United States District Court for the Eastern District of Pennsylvania under 28 U.S.C. § 1391(b)(2). A substantial part of the events or omissions giving rise to Plaintiffs' claims occurred in Philadelphia, which is located in the Eastern District of Pennsylvania. See 28 U.S.C. § 118. 8. Venue is also proper under 28 U.S.C. § 1391(b)(l) because all Defendants are domiciled in the Commonwealth of Pennsylvania, and at least one Defendant is domiciled in Philadelphia.
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THE PARTIES

I.

THE PLAINTIFFS

9. Plaintiff Christos Sourovelis is an adult lawful permanent resident of the United

States. Mr. Sourovelis owns and operates his own business in home construction, a trade his

family practiced in Athens, Greece. He has lived in Philadelphia for over 30 years. In December

2006, Mr. Sourovelis purchased a single-family home in the Somerton section of Philadelphia

and has been living there with his family since approximately September 2007. Mr. Sourovelis

holds title to this property. He has never been charged with any crime.

10. Yet, under Defendants' civil-forfeiture policies and practices, Mr. Sourovelis and

his family were evicted from their home for more than a week without any notice or opportunity

to be heard. Moreover, in order to be let back into his home, Mr. Sourovelis was forced to agree

to a number of unconstitutional conditions, including barring his son from the property.

11. At the time of the filing of the First Amended Complaint, Mr. Sourovelis stood to

permanently lose his family's home through a civil-forfeiture proceeding initiated by the

Philadelphia D.A.'s Office.

12. Plaintiff Doila.Welch is an adult citizen of the United States. Born in Belize, Ms.

Welch became a U.S. citizen over 25 years ago. In 1995, her parents bought a three-story, six-

bedroom, multi-family row home in South Philadelphia. When they passed away, Ms. Welch

along with her two sisters inherited the property, which serves as a haven to her, all of her

siblings, and their children. Ms. Welch is the administrator of the estate. Currently, Ms. Welch

resides in this home with her children, brother, and sister. Ms. Welch suffers from lupus and

severe rheumatoid arthritis, which make it difficult for her to be mobile. Ms. Welch's sister, who

lives with her, suffers from a cognitive disability. Neither Ms. Welch nor anyone else with an

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ownership interest in the property has been charged with any crime. 13. Yet, under Defendants' civil-forfeiture policies and practices, Ms. Welch was
threatened with being evicted from her home, without any notice or opportunity to be heard. Additionally, Ms. Welch faced eviction if she did not agree to prohibit her son from residing in the home and prohibit her husband from entering the home at all.
14. At the time of the filing of the First Amended Complaint, Ms. Welch stood to permanently lose her home through a civil-forfeiture proceeding initiated by the Philadelphia D.A.'s Office.
15. Plaintiff Norys Hernandez was born in Puerto Rico and is an adult citizen of the United States. After working for years in the financial sector at Wells Fargo, Mrs. Hernandez recently finished school to become a medical-office assistant. Mrs. Hernandez and her family have lived in Philadelphia for over 25 years and together with her sister, Sonia Gonzalez, she owns a two-story row house in North Philadelphia. Mrs. Hernandez and her family purchased this property to provide her sister and her sister's children with a home. Although police arrested Mrs. Hernandez's nephew for a drug crime, neither Mrs. Hernandez nor her sister were charged with any crime.
16. Yet, under Defendants' civil-forfeiture policies and practices, Mrs. Hernandez and Ms. Gonzalez were barred from their property for more than four months without any notice or opportunity to be heard.
17. At the time of the filing of the First Amended Complaint, Ms. Hernandez stood to permanently lose her property through a civil-forfeiture proceeding initiated by the Philadelphia D.A.'s Office.
18. Plaintiff Nassir Geiger is an adult natural citizen of the United States. Mr. Geiger
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 9 of 75
has lived in Philadelphia his entire life. He is a full-time sanitation worker for the City of Philadelphia. Under Defendants' civil-forfeiture policies and practices, Mr. Geiger's car, a 2000 Buick LeSabre, and $580.00 in cash were seized on January 17, 2014. The Philadelphia D.A.'s Office initiated civil-forfeiture proceedings against both Mr. Geiger's money and his car.
19. On June 16, 2014, Mr. Geiger's cash was ordered forfeited as a result of a default judgment.
20. At the time of the filing of the First Amended Complaint, Mr. Geiger also stood to permanently lose his car through a civil-forfeiture proceeding initiated by the Philadelphia D.A.'s Office.
21. On May 3, 2015, Mr. Geiger settled the forfeiture action and received his car back after paying $500 in storage fees. Mr. Geiger was deprived of his car for 15 months.
22. Plaintiffs Sourovelis, Welch, Hernandez, and Geiger represent a putative class of all individuals who own property that currently is or will be the subject of a civil-forfeiture petition brought by the Philadelphia _D.A.' s Office.
II. THE DEFENDANTS
23. Defendant City of Philadelphia is a municipality of the Commonwealth of Pennsylvania. The City of Philadelphia funds both the Philadelphia District Attorney's Office and the Philadelphia Police Department. The City of Philadelphia is Pennsylvania's only consolidated city-county and covers over 140 square miles with over 1.5 million residents.
24. Defendant James F. Kenney is the Mayor of Philadelphia. As Mayor, he is responsible for supervising Police Commissioner Ross. Mayor Kenney is sued in his official capacity.
25. Defendant Richard Ross Jr. is the Commissioner of the Philadelphia Police
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Department, which is the City's primary law-enforcement agency. (At the time the First Amended Complaint was filed, Charles H. Ramsey was the Police Commissioner.) As head of the nation's fourth-largest police department, Commissioner Ross is responsible for overseeing the 6,600 sworn members and 800 civilian personnel serving the 21 police districts in Philadelphia. Officers of the Philadelphia Police Department enforce civil-forfeiture laws, in part, by drafting arrest reports for predicate offenses, drafting receipts for property that has been seized for civil forfeiture, and enforcing orders to seize and seal real property for forfeiture. The Philadelphia Police Department has received forfeited property or its proceeds for the purpose of enforcing provisions of the Controlled Substance, Drug, Device, and Cosmetic Act. Former Police Commissioner Ramsey had an agreement on behalf of the Philadelphia Police Department to share in forfeiture proceeds with the Philadelphia D.A.'s Office. Police Commissioner Ross has continued this practice of sharing in forfeiture proceeds. Police Commissioner Ross is sued in his official capacity.
26. Defendants City of Philadelphia, Police Commissioner Ross, and Mayor Kenney are referred to collectively as the "City Defendants."
27. Defendant Philadelphia District Attorney's Office is the largest prosecutor's office in Pennsylvania, employing 600 lawyers, detectives, and support staff. According to the website of the Philadelphia D.A.'s Office, the Public Nuisance Task Force-a specialized unit within the Philadelphia D.A.'s Special Operations Division-"handles all forfeiture-related litigation, the maintenance of seized assets and the investigation of potentially forfeitable assets." At the time the First Amended Complaint was filed, the Chief of the Public Nuisance Task Force was Assistant District Attorney Beth Grossman. The current Chief of the Public Nuisance Task Force is Assistant District Attorney Andrew Jenemann. The Philadelphia D.A.'s Office receives
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forfeited property and its proceeds. Under state law, the forfeited property and its proceeds must be used to enforce provisions of the Controlled Substance, Drug, Device, and Cosmetic Act.
28. Defendant R. Seth Williams is the District Attorney of Philadelphia, the chief lawenforcement officer for the City and County of Philadelphia. Under the Commonwealth of Pennsylvania's Constitution and statutes, D.A. Williams. is an independent officer, directly elected by Philadelphia residents. D.A. Williams is responsible for overseeing all aspects of the Philadelphia D.A.'s Office, including the Public Nuisance Task-Force. Pennsylvania law authorizes D.A. Williams to take custody of forfeited property and either sell it or retain it for official use. Upon information and belief, D.A. Williams has signed an agreement to share forfeiture proceeds with the Philadelphia Police Department. D.A. Williams is sued in his official capacity.
29. Defendants Philadelphia D.A.'s Office and R. Seth Williams are referred to collectively as the "District Attorney Defendants."
30. Defendant Sheila A. Woods-Skipper is President Judge of the Court of Common Pleas of Philadelphia, and in that capacity, serves as chair of the Administrative Governing Board of the First Judicial District of Pennsylvania. The Administrative Governing Board has authority over all operations of the courts and departments in the First Judicial District, including the monitoring of overall performance, as well as annual reporting of that performance to the Pennsylvania Supreme Court. According to the First Judicial District's website, Judge WoodsSkipper "[i]s responsible for the implementation of local rules as adopted by the Board of Judges, and for the initiation of administrative orders, directives, or general court regulations as may be mandated or authorized by various court rules and directives, as well as legislative enactments." President Judge Woods-Skipper is sued in her official capacity as chair of the
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Administrative Governing Board. 31. Defendant Jacqueline F. Allen is Administrative Judge for the Trial Division of the
Court of Common Pleas of Philadelphia, and in that capacity serves on the Administrative Governing Board. The Pennsylvania Supreme Court appointed Judge Allen to "approv[e] authority for all administrative matters associated with the Trial Division." According to the First Judicial District's website, Judge Allen is responsible for the "[a]ssignment ofjudges within the Trial Division, along with designation and use of all rooms assigned to the Division for judicial use, excepting chambers for each judge." Defendant Jacqueline F. Allen is sued in her official capacity as a member of the Administrative Governing Board.
32. Defendant Joseph H. Evers is the Court Administrator of the First Judicial District of Pennsylvania, and in that capacity serves on the Administrative Governing Board. The Court Administrator is the highest non-judicial leadership position in the First Judicial District of Pennsylvania. According to the First Judicial District's website, "The Office of the Court Administrator was instituted to complement the [Administrative Governing] Board and carry out their directives, to propose solutions to problems and innovative ideas for improvements, and to oversee the day-to-day management of the District." "The Office provides centralized management for major service centers that affect the work of the courts throughout the District, and coordinates the ministerial activities of Deputy Court Administrators located in specific courts and divisions of the [First Judicial District]." Defendant Joseph H. Evers is sued in his official capacity.
33. Defendant Charles A. Mapp is the Chief Deputy Court Administrator of the First Judicial District of Pennsylvania. According to the First Judicial District's website, "[t]he Chief Deputy Court Administrator is responsible for carrying out high level initiatives as identified by
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the Court Administrator, and these include caseflow management, technology acquisition and

implementation, facility design and management, system restructuring, labor relations, and

records management." Defendant Charles A. Mapp has been involved in deciding how forfeiture

proceedings are conducted. Defendant Charles A. Mapp is sued in his official capacity.

34. President Judge Woods-Skipper, Administrative Judge Allen, Mr. Evers and Mr.

Mapp are collectively referred to as the "State Court Administrators."

35. At all relevant times, all Defendants were acting under color of state law.

FACTUAL ALLEGATIONS

I.

PENNSYLVANIA'S CONTROLLED SUBSTANCES FORFEITURE ACT

36. Civil forfeiture is a legal mechanism by which law enforcement can permanently

deprive individuals of real and personal property that is proven by a preponderance ofthe

evidence to be connected to specified crimes.

37. Civil forfeiture is distinct from criminal forfeiture. Criminal forfeiture is an in

personam proceeding brought against the guilty party. By contrast, civil forfeiture is an in rem

proceeding against the property based on the legal fiction that the property itself is guilty. A

civil-forfeiture action in Pennsylvania has the Commonwealth as the plaintiff or petitioner and

the property as the defendant or the respondent, with parties who have an interest in the property

subject to forfeiture as the claimant.

38. Additionally, the allocations of burdens of proof differ between civil and criminal

forfeiture. While criminal forfeiture requires a conviction after proof beyond a reasonable doubt,

under civil forfeiture, the government is only required to prove the property's connection to a

crime by a preponderance of the evidence.

39. Although Pennsylvania courts have recognized that civil-forfeiture proceedings are

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quasi-criminal in nature because they involve constitutional rights normally only implicated in criminal proceedings, property owners defending against civil-forfeiture proceedings are not guaranteed counsel.
40. In Pennsylvania, district attorney's offices, including the Philadelphia D.A.'s Office, also bring forfeiture actions that are not authorized by statute-so-called "common law forfeitures." To the extent "common law forfeitures" are authorized under Pennsylvania law, they can only be pursued for derivative contraband where there is evidence of a conviction. See Commonwealth v. 2010 Buick Enclave, 99 A.3d 163 (Pa. Cmwlth. 2014). It is the policy and practice of the Philadelphia D.A.'s Office to file petitions for "common law forfeiture" before obtaining a conviction.
41. In Pennsylvania, one of the most common statutory bases for forfeiture is the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. §§ 6801 and 6802. Indeed, the majority of civil-forfeiture petitions brought by the Philadelphia D.A.'s Office are brought under the Controlled Substances Forfeiture Act.
42. Enacted in 1988, the Controlled Substances Forfeiture Act authorizes forfeiture of real and personal property connected to a violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa. Con. Stat.§§ 780-101 to 780-144 (a "controlled-substance violation").
43. The Controlled Substances Forfeiture Act enumerates the kind of property subject to forfeiture. 42 Pa. Cons. Stat. § 6801(a). The Act specifically subjects the following property to forfeiture:
• all vehicles "which are used or are intended for use to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment" of drugs, drug paraphernalia, or materials used to manufacture drugs;
• "money, negotiable instruments, securities or other things of value" that are:
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1. "furnished or intended to be furnished by any person in exchange for" drugs;
2. traceable as proceeds of such an exchange; or 3. used or intended to be used to facilitate any controlled-substances
violation; and • "[r]eal property used or intended to be used to facilitate" a controlled-substances
violation. Id. § 6801(a)(4), (6). Additionally, money "found in close proximity" to illegal drugs is "rebuttably presumed to be proceeds derived from the selling of' illegal drugs. Id. § 6801(a)(6)(ii).
44. The Act authorizes law enforcement to seize the above-listed types of property without process if there is probable cause to believe that the property has been used or is intended to be used for a controlled-substances violation. Id. § 6801(b).
45. The Controlled Substances Forfeiture Act outlines the procedures governing civil forfeiture. See 42 Pa. Cons. Stat. § 6802. First, it enumerates the required contents of a petition for civil forfeiture and where it should be filed. Id. § 6802(a). Second, it estab.lishes the requirements for providing sufficient notice of the civil-forfeiture petition to the property owner. Id. § 6802(b)-(e). Third, the Act implements a burden-shifting framework that puts the onus of proving innocence on the property owner: If the Commonwealth produces evidence that the property is subject to forfeiture, its owner must prove his or her lack of knowledge of or consent to the conduct giving rise to the forfeiture. Id. § 68020). By judicial interpretation, the Act requires an evidentiary hearing in open court before property can be taken from an individual and forfeited to the Commonwealth. Commonwealth v. 605 University Drive, State College, Pa., 61A.3d1048, 1054 (Pa. Commonw. Ct. 2012).
46. The Controlled Substances Forfeiture Act also provides an ex parte procedure to obtain "a restraining order or injunction, require the execution of a satisfactory performance
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bond or take any other action to preserve the availability of [the] property ... for forfeiture." 42 Pa. Con. Stat. § 6802(f). Under§ 6802(g), an ex parte temporary restraining order may be entered "ifthe Commonwealth demonstrates that there is probable cause to believe that the property with respect to which the order is sought would be subject to forfeiture [ ] and that provision of notice will jeopardize the availability of the property for forfeiture."
47. Finally, the Controlled Substances Forfeiture Act governs the use and distribution of forfeited property and its proceeds. Specifically, if the law-enforcement authority seizing the property has county-wide jurisdiction (rather than statewide jurisdiction), the Act requires forfeited property to be transferred to the custody of the district attorney for that county. 42 Pa. Cons. Stat. § 6801(e).
48. The Act also authorizes district attorneys to either sell forfeited property or retain it for official use. Id. If sold, proceeds from the sale of forfeited property must "be used to pay all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising and court costs." 42 Pa. Cons. Stat. § 6801(e).
49. The balance of the forfeiture proceeds goes to the district attorney's office, or in cases in which both municipal and state law-enforcement entities were substantially involved, the proceeds are distributed equally between the district attorney and the Attorney General. 42 Pa. Cons. Stat. § 6801(f)-(g).
50. The Act further provides that the "entity having budgetary control shall not anticipate future forfeitures or proceeds therefrom in adoption and approval of the budget for the district attorney." 42 Pa. Cons. Stat. § 6801(f). Consequently, these forfeiture funds are a "bonus" to law-enforcement agencies that exist wholly outside oversight by the funding county.
51. The Act requires district attorneys to use forfeited property or derived proceeds to
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enforce the provisions of the Controlled Substance, Drug, Device and Cosmetic Act. Id. § 6801(h). The Act also authorizes district attorneys to designate forfeiture proceeds for community-based drug and crime-fighting programs. Id.
52. Based on information from the Attorney General's Office, D.A.'s offices in Pennsylvania, including Philadelphia, use forfeiture funds to pay salaries and purchase vehicles, equipment, and other items and services of institutional value. ·II. PHILADELPHIA'S FORFEITURE PROGRAM IS UNPRECEDENTED IN SCALE.
53. Cashing in on the authority to retain forfeited property and derived proceeds, the Philadelphia District Attorney's Office has brought in more than $90 million in forfeiture revenue since 1987. See Isaiah Thompson, "The $10 Million Question," Philadelphia City Paper, Nov. 29, 2012, http://issuu.com/phillycp/docs/cp_2012-ll-29.
54. Philadelphia has one of the largest municipal forfeiture programs in the country, yielding an average of $5.6 million in forfeiture revenue each year.
55. By contrast in 2010, Kings County (Brooklyn), with a population 1.5 times that of Philadelphia, and Los Angeles County, with a population more than 6.5 times that of Philadelphia, each brought in $1.2 million in annual forfeiture revenue.
56. When measured against other counties in Pennsylvania-in other words, when measured against other jurisdictions operating under the same state forfeiture law-Philadelphia is in a class of its own. Between 2004 and 2009, Philadelphia collected approximately $36 million through civil forfeiture-an amount twice that of the three next-largest counties in Pennsylvania combined. And since 2009, Philadelphia's forfeiture pot has kept growing.
57. Forfeiture data obtained from the Pennsylvania Office of the Attorney General reveal the extent to which Philadelphia's forfeiture activity far exceeds that of other
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Pennsylvania counties. From Fiscal Years 2002 through 2014,2 the Philadelphia D.A.'s Office collected a total of $72,627,100.00 in forfeiture revenue, while the remaining 66 county D.A.'s Offices collected a combined total of $102,253,009.65. That means that for this thirteen-year period, Philadelphia's forfeiture revenue amounted to 42 percent of the statewide total. The amount each D.A.'s Office collected in forfeiture revenue is illustrated below in Table 1.

Table 1 Total Forfeiture Revenue

$80,000,000 ~-------------------------­
• $70,000,000 +---------------------'-~------

$60,000,000

Philadelphia

!
$50,000,000 + - - - - - - - - ' - - - - - - - - - - - - - - - - - - - - -

$40,000,000 + - - - - - - - - - - - - - - - - - - - - - - - - - - -

$30,000,000 + - - - - - - - - - - - - - - - - - - - - - - - - - -

$20,000,000 .

$10,000,000 +·:···············--·-···:;;a,;:··········-····--·-·-·····-···-·---··----·-····-·-···-···-········-··-··-····-···;.c·········-----···-···-·--"''--·-·--···--··-·······-··-························································o.11L···········

County D.A. Offices

58. In statistical terms, the amount of Philadelphia's forfeiture revenue is almost 8 standard deviations above the mean. In laymen's terms, Philadelphia is as aberrant as a 7-foottall woman or an 8-foot-tall man.
59. Even accounting for differences in population size and assuming that more populous counties will take in more in forfeiture revenue, the Philadelphia D.A.'s Office is still an outlier. As illustrated below in Table 2, the Philadelphia D.A.'s Office collected $47.91 in per capita forfeiture revenue, more than twice that of the next most active county.

2 Data for Fiscal Year 2015 and 2016 have not been released to Plaintiffs yet. - 15 -

Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 19 of 75

$60.00 $50.00 $40.00 $30.00 $20.00 $10.00
$0.00

Table 2 Total Forfeiture Revenue Per Capita
County D.A. Offices

60. From Fiscal Years 2002 through 2014, the amount of civil-forfeiture revenue collected by the Philadelphia D.A.'s Office (prior to any disbursements by the Office) averaged close to one-fifth of the general budget of the D.A.'s Office as appropriated by the City of Philadelphia.
61. By comparison, the civil-forfeiture revenue taken in by the District Attorney's Office for Allegheny County, the second largest county in Pennsylvania, averaged approximately 8 percent of that office's appropriated budget.
62. On the expense side of the equation, the Philadelphia D.A.'s Office spends much of its forfeiture revenue to pay salaries, including the salaries of the prosecutors that administer Philadelphia's civil-forfeiture program.
63. Using forfeiture proceeds to pay the salaries of the very individuals responsible for pursuing forfeiture presents a direct conflict of interest.
64. The Philadelphia D.A. 's Office spends nearly twice as much of its forfeiture revenue on salaries as all other county D.A.'s offices combined. From Fiscal Years 2002
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 20 of 75
through 2014, the Philadelphia D.A.'s Office spent $28,545,692.00 of its forfeiture revenue on salaries, compared to $15,712,597.91 spent on salaries by all other D.A.'s Offices in the Commonwealth. The amount of forfeiture revenue D.A. offices in the Commonwealth spent on salaries during Fiscal Years 2002 through 2014 is illustrated below in Table 3.
Table 3 Amount of Forfeiture Revenue Spent on Salaries
s • P_h_ila_d_e~lp_h_ia_ $30,000,000 ~------------------------­ 2s,OOO,OOO - + - - - - - - - - - - - - - - - - - - - -_'_
$20.,0001000 ....................................................................................................................................-........... $15,000,000 + - - - - - - - - - - - - - - - - - - - - - - - - - $10,000,000 + - - - - - - - - - - - - - - - - - - - - - - - - - -
$5,000,000 ·I·················-·-·-·················································-·······················-·-·······························································-····································································································································--···············································
County D.A. Offices
65. Again, taking into account population size, the total amount per capita that Philadelphia spent on salaries during this time period was $18.83, while all other counties combined only spent $1.42 per capita.
66. In contrast, from Fiscal Years 2002 through 2014, the Philadelphia D.A.'s Office spent none of its forfeiture revenue on community-based drug and crime-fighting programs under 42 Pa. Cons. Stat. § 6801(h), despite its professed goal of helping communities combat drugs.
67. By written agreement, the Philadelphia D.A.'s Office has shared forfeiture proceeds with the Philadelphia Police Department. Under the terms of this agreement, the first $927,500 forfeited each fiscal year was apportioned as follows: $727,500 to the Philadelphia D.A.'s
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 21 of 75
Office to cover "forfeiture related administrative expenses,'' including salaries; and $200,000 to the Philadelphia Police Department. After distributing the initial $927,500, the agreement calls on the balance of the forfeiture revenue to be divided again, with 40 percent going to the Philadelphia D.A.'s Office and 60 percent going to the Philadelphia Police Department. District Attorney Williams and former Police Commissioner Ramsey had a substantially similar agreement to share forfeiture proceeds. Today, District Attorney Williams and Police Commissioner Ross have a substantially similar agreement to share in forfeiture proceeds.
A. The City and District Attorney Defendants Seize Large Quantities ofPersonal Property for Forfeiture.
68. Rather than being the product of a few large forfeitures from drug "kingpins,'' Philadelphia's forfeiture fund is amassed through seizing an unprecedented amount of personal and real property from thousands of ordinary-and often innocent-property owners.
69. When seizing personal property incident to an arrest or upon execution of a search warrant, it is the policy and practice of the Philadelphia Police Department to issue property receipts documenting the property that is seized.
70. It is the policy and practice of officers of the Philadelphia Police Department to routinely submit property receipts to the Philadelphia D.A.'s Office for the purpose of commencing a civil-forfeiture petition against the seized property.
71. The bulk of Philadelphia's forfeiture revenue comes from confiscating cash. 72. From Fiscal Years 2002 through 2014, Philadelphia seized and forfeited $50,440,292.00 in cash. 73. Notably, this amount was accumulated from thousands of cases involving small sums of money, rather than a few large busts. 74. In 2010, Philadelphia filed 8,284 currency forfeiture petitions, with an average of
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 22 of 75
$550 involved in each case. 75. In a random sample of more than 100 currency-forfeiture cases from 2011 to 2012
that investigative reporter Isaiah Thompson reviewed, the median amount of cash at stake in each forfeiture case was only $178. See Isaiah Thompson, "The Cash Machine," Philadelphia City Paper, Nov. 29, 2012, http://citypaper.net/article.php?The-Cash-Machine-19189. In many of these cases, the amount involved was less than $100.
76. Records from the Court of Common Pleas show sums as little as $9.00 being ordered forfeited.
77. The City and District Attorney Defendants' policy and practice of taking such small amounts of money from people who are never convicted of (or even charged with) a crime raises serious concerns about whether the seized money is in fact substantially connected to criminal activity.
78. The City and District Attorney Defendants also seize a large number of vehicles through their forfeiture power. From Fiscal Years 2002 through 2014, Philadelphia seized and forfeited 3,541 vehicles.
79. It is the City and District Attorney Defendants' policy and practice to charge vehicle owners storage fees for their seized vehicles. These storage fees continue to accumulate until the owner of the vehicle files a motion for return of property.
80. Defendants routinely fail to advise vehicle owners that storage fees will continue to accumulate until the owner files a motion for return of property.
81. Philadelphia also relies on civil forfeiture to seize other kinds of personal property from individuals, including but not limited to cell phones, clothing, jewelry, prescription medication, licensed firearms, and, in one instance, a woman's jumper cables.
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 23 of 75

B. The City and District Attorney Defendants Seize and Restrain Numerous Real Properties for Forfeiture.
82. Philadelphia aggressively uses civil forfeiture to seize and restrain real property on a scale unlike that of any other county in Pennsylvania.
83. The Philadelphia D.A.'s Office files civil-forfeiture petitions on 300 to 500 real properties (mostly private residences) annually. Approximately an average of 100 of these properties are forfeited and sold at auction annually with the D.A.'s Office retaining the proceeds. A significant majority of the remaining real property cases "settle" under the threat of civil forfeiture.
84. Meanwhile, from 2008 through 2011, the three next-largest counties in Pennsylvania combined took only a dozen real properties through civil forfeiture.
85. As illustrated in Table 4 below, from Fiscal Years 2002 to 2014, Philadelphia forfeited 1,248 real properties compared to just 72 real properties forfeited by all other counties combined.

Table 4 Real Property Forfeitures

1400 .

1200 -1--~~~~~~~~~~~~~~~~~~~-·-'-""'-i--~~~~~~

1000 ............. ··············--·--

""- Philadelphia

600
200 0 - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ···-·County D.A. Offices

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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 24 of 75
III. THIS HIGH VOLUME OF FORFEITURE Is ENABLED BY PHILADELPHIA'S ROBO-
FORFEITURE MACHINE.
86. The enormous volume of forfeiture cases-and ultimately the very substantial amount of revenue taken in-is all accomplished through a mechanized, assembly-line system operated by a handful of prosecutors within a specialized unit of the Philadelphia D.A.'s Office called the Public Nuisance Task Force.
87. The Public Nuisance Task Force files thousands of forfeiture petitions each year. 88. In 2011 alone, the Public Nuisance Task Force filed 6,560 civil-forfeiture petitions. 89. By contrast, the Allegheny County D.A.'s Office-which serves the second-largest county in Pennsylvania-filed roughly just 200 civil-forfeiture petitions from 2008 to 2011. 90. Since August 11, 2012, the Public Nuisance Task Force has filed 20,590 forfeiture petitions related to controlled-substance forfeitures: 451 or 2 % of those petitions were filed against real property and 20,139 (approximately 98%) of those petitions were filed against personal property, mostly against cash and vehicles. 91. The Public Nuisance Task Force handles all forfeiture-related litigation, the maintenance of seized property, and the investigation of potentially forfeitable property. 92. The Public Nuisance Task Force consists of approximately nine prosecutors and 15 prosecution assistants, paralegals, and other support staff. 93. Each assistant district attorney in the Public Nuisance Task Force is assigned to a geographic area of Philadelphia. 94. Each assistant district attorney in the Public Nuisance Task Force is responsible for either civil-forfeiture cases involving personal property or civil-forfeiture cases involving real property.
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 25 of 75
A. Philadelphia's Forfeiture Machine Uses an AutomatedAssembly-Line System to Maximize Petitions for Forfeiture, and Ultimately Revenue.
95. The Philadelphia D.A.'s Office generates the high volume of civil-forfeiture petitions by relying on prosecution assistants, paralegals, and support staff to simply copy information from Philadelphia Police Department Arrest Reports and Property Receipts onto form documents that become the Notice of Forfeiture and Petition for Forfeiture.
96. Until on or about September 22, 2014, it was the policy and practice of the Philadelphia D.A.'s Office to, before filing forfeiture petitions for real property, obtain, under 42 Pa. Cons. Stat. § 6802(f) and (g), ex parte temporary restraining orders for real property mandating that "no interest in this property (including but not limited to ownership, tenancy, easement, and purchase or rental option) may be sold, assigned, optioned, given, bequeathed or transferred in any manner." The temporary restraining order directs the Prothonotary to file the order without fee and index it as a lis pendens.
97. Until on or about September 22, 2014, it was the policy and practice of the Philadelphia D.A.'s Office to apply for temporary restraining orders without making any evidentiary showing that providing the property owner with notice will jeopardize the availability of the property for forfeiture.
98. In addition to applying for temporary restraining orders to restrain the transfer of the target property, it was the policy and practice of the Philadelphia D.A.'s Office, until on or about September 22, 2014, to apply for an ex parte order to seize and seal the target property under 42 Pa. Cons. Stat. § 6802(f) and (g). Applications to seize and seal contained the bald, conclusory allegation that the Commonwealth is moving for forfeiture of the real property under 42 Pa. Cons. Stat. §§ 6801, 6802 "because it was used and/or continues to be used (or intended to be used) to commit, or to facilitate the commission of, violations of the Controlled Substances
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 26 of 75
Act." The application also contained minimal factual allegations copied verbatim from the r Philadelphia Police Department Arrest Report, which was incorporated and attached to the
application. 99. Until on or about September 22, 2014, it was the policy and practice of the
Philadelphia D.A.'s Office to apply for an order to seize and seal real property without providing any particularized evidence that the order was needed to preserve the specific property for civil forfeiture.
100. Until a partial settlement was approved on behalf of a class of property owners, it was the policy and practice of the Philadelphia D.A.' s Office to apply for an order to seize and seal real property without making any particularized showing of exigent circumstances or that a temporary restraining order restricting transfer of the property would be insufficient to protect Defendants' interests during the pendency of the civil-forfeiture proceedings.
101. Until a partial settlement was approved on behalf of a class of property owners, it was the policy and practice of the Philadelphia D.A.' s Office to apply for an order to seize and seal real property without giving property owners any notice or opportunity to be heard.
102. Under the City and District Attorney Defendants' policies and practices, Plaintiffs Sourovelis, Welch, and Hernandez, as well as members of the putative class, first learned that their homes were threatened with forfeiture when officers of the Philadelphia Police Department appeared at their home, and, armed with the order to "seize and seal" the premises, forcibly evicted them and all residents without any prior notice or opportunity to be heard.
103. It is the Philadelphia D.A.'s Office's policy and practice to send property owners threatened with civil forfeiture three form documents: (i) a notice of forfeiture; (ii) a verified petition for forfeiture; and (iii) a notice of hearing.
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 27 of 75
104. The notice of forfeiture is addressed "to the claimant of the within described property," that is, the person claiming any interest in the property threatened with civil forfeiture.
105. The form notice states that "you are required to file an answer to this petition, setting forth your title in, and right to possession of, said property within thirty (30) days from the service hereof, and you are also notified that if you fail to file an answer, a decree of forfeiture and condemnation will be entered against the property."
106. The petition for forfeiture contains allegations taken verbatim from the Police Department Arrest Report.
107. The form petition for forfeiture also contains a bare assertion that the property "was used and/or continues to be used (or intended to be used) to commit, or to facilitate the commission of, violations of the Controlled Substance[, Drug, Device and Cosmetic] Act."
108. The petition also includes a form affirmation that Assistant District Attorney Beth Grossman, the head of the Public Nuisance Task Force, or the assigned assistant district attorney "affirm that the facts set forth in the foregoing petition are true and correct to the best of her/his knowledge, information, and belief."
109. The notice of hearing states that a hearing on the forfeiture petition (and if applicable, on the entry of a restraining order and application to seize and seal the property) was set for a specified date and time in a specific courtroom. Until January 6, 2016, forfeiture proceedings took place in Courtroom 478, City Hall, Philadelphia, Pennsylvania.
110. For some time during the summer and fall of 2015, the District Attorney Defendants stopped filing new forfeiture petitions. However, during that time, the City and District Attorney Defendants continued to seize people's property for civil forfeiture. Although the District Attorney Defendants resumed filing new forfeiture petitions for a brief period, they
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 28 of 75
again stopped filing new petitions in February 2016. Yet since then, the City and District Attorney Defendants have continued to seize property for civil forfeiture. Consequently, during this period people whose property has been seized have been deprived of their property without any notice of how to obtain their property back or what procedures will govern.
111. Court records demonstrate that it is the Defendants' policy and practice to list anywhere from 40 to 95 civil-forfeiture actions to be heard in Courtroom 478 in a single day.
B. The Creation of"Courtroom" 478. 112. The First Judicial District of Pennsylvania is composed of two courts which make up the Philadelphia County Court System: the Court of Common Pleas and the Municipal Court. The Court of Common Pleas is responsible for providing a judicial forum for civil-forfeiture actions. 113. State Court Administrators have a history of vacillating between having the judiciary control forfeiture proceedings ahd then relinquishing control over those proceedings to the Philadelphia D.A.'s Office. In addition, State Court Administrators have a history of intermittently allowing forfeiture proceedings to be conducted with no judge present. 114. Prior to January 2, 2007, predecessors of the State Court Administrators assigned forfeiture matters to various courtrooms in the Criminal Justice Center-often overseen by a Court of Common Pleas judge. 115. Upon information and belief, from 1999 to approximately 2004, predecessors of the State Court Administrators assigned a criminal court judge to hear all forfeiture cases in a dedicated courtroom in the Criminal Justice Center. This courtroom was equipped with a complete court staff, including a stenographer, a Clerk of Quarter Sessions, and criminal listing support staff.
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 29 of 75
116. Upon information and belief, the judge in the dedicated courtroom in the Criminal Justice Center was also responsible for a second courtroom in the Criminal Justice Center, which only handled initial listings of forfeitures cases involving personal property.
117. Upon information and belief, law clerks for the Philadelphia D.A. 's Office handled initial listings in this secondary courtroom-providing some information to property owners and determining whether forfeiture cases were contested.
118. Upon information and belief, law clerks for the Philadelphia D.A.'s Office presented forfeiture cases to the criminal court judge: Contested cases would move forward to trial and non-contested cases would be reviewed by the criminal court judge.
119. Upon information and belief, from approximately 2004 to 2007, predecessors of the State Court Administrators assigned forfeiture cases to the presiding criminal motions judge in Courtroom 504 of the Criminal Justice Center.
120. Upon information and belief, from approximately 2004 to 2007, predecessors of the State Court Administrators eliminated the courtrooms that handled only initial listings of forfeiture cases and combined those cases with forfeiture cases set for status conferences in a separate courtroom.
121. Upon information and belief, predecessors of the State Court Administrators assigned a Criminal Listings Trial Commissioner, a Clerk of Quarter Sessions, a stenographer, and criminal listings support staff to this courtroom.
122. Upon information and belief, within six months of creating this new courtroom, a shortage of personnel resulted in no Clerk of Quarter Sessions or stenographer in this new courtroom.
123. Upon information and belief, on or about January of 2007, representatives of the
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State Court Administrators, including Defendant Civil Court Administrator Charles Mapp, informed then Assistant District Attorney Beth Grossman and Assistant District Attorney Clarence Dupree that forfeiture and related proceedings would eventually be transferred to the Civil Court Division. Accordingly, initial listings and status listings for forfeiture and related proceedings would be held in Courtroom 478 in City Hall. But Courtroom 504 of the Criminal Justice Center would be available for any cases referred to the criminal motions judge.
124. Courtroom 478 lacked a presiding judge or any officer with the adjudicative ability, and consequently, there was no stenographer or court reporter. Courtroom 478 also lacked a Clerk of Quarter Sessions, who would maintain the court records and update the court docket.
125. Upon information and belief, State Court Administrators never completed the transition of forfeiture and related proceedings to the Civil Court Division.
C. The Legal Rabbit Hole of "Courtroom" 478. 126. Until approximately October 2015, Courtroom 478 operated as follows: 127. Property owners who sought to fight the civil forfeiture and reclaim their property had to show up in Courtroom 478 in City Hall by 9:00 a.m. 128. In Courtroom 478, property owners were instructed to sign in and indicate with a checkmark on a sign-in sheet the kind of property they were there to save. The sign-in sheet listed the following categories of property: "house," "car," "money," or "gun." 129. Assistant district attorneys with the Public Nuisance Task Force fully controlled the proceedings inside "Courtroom" 478. There was no judge, no jury, and not even a court reporter to transcribe these "hearings." 130. Employees of the Philadelphia District Attorney's Office occupied both tables reserved for counsel, with prosecutors handling forfeiture cases for real property at the table on
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 31 of 75
the right, and prosecutors, and frequently paralegals, handling forfeiture cases for personal property at the table on the left.
131. The prosecutors called the civil-forfeiture cases by comparing the sign-in sheet with the docket calendar for Courtroom 478.
132. Upon information and belief, for listed cases in which property owners failed to appear in Courtroom 478, the prosecutors marked the case for default judgment without any determination, judicial or otherwise, as to the reason the property owner did not appear.
133. For listed cases in which the property owner was present, the assigned prosecutor or paralegal discussed the case with the property owner. These conversations frequently took place at the counsel's table, out in the hall, in the empty jury box, or at a small table in the back of the room.
134. On first listings, these conversations were typically short, lasting no more than several minutes. Invariably, the prosecutors and paralegals demanded that the property owners return with documentation supporting proof of legal ownership of the property.
135. Prosecutors and paralegals frequently advised property owners that their civilforfeiture case was not complicated and they did not need an attorney.
136. Prosecutors and paralegals routinely gave property owners a set of more than 50 pattern interrogatories, with multiple discrete subparts, which they characterized as "questionnaires." These "questionnaire's" had to be answered under penalty of perjury.
137. In cases in which there was an order to seize and seal, prosecutors compelled property owners to execute an agreement to unseal the residence on certain conditions, including but not limited to, barring specified individuals including relatives from entering the residence indefinitely and waiving in any future civil-forfeiture action their statutory innocent-owner
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 32 of 75
defense and their constitutional defense that the forfeiture constitutes an excessive fine. 138. Prosecutors and paralegals routinely continued and relisted civil-forfeiture cases,
and they unilaterally determined whether any documentation provided by the property owner was sufficient.
139. When a case was relisted, the assigned prosecutor or paralegal filled in a form from the Forfeiture Program of the Civil Trial Division of the First Judicial District of Pennsylvania Court of Common Pleas of Philadelphia County, which instructed the property owner to return to Courtroom 478 in City Hall on a specified date (typically a month later) at 9:00 a.m. The form advised the property owner:
PLEASE BE ON TIME.
A FAILURE TO APPEAR MAY RESULT IN YOUR PETITION
BEING DISMISSED OR YOUR PROPERTY BEING FORFEITED.
140. Property owners contesting a forfeiture action were sometimes required to appear as many as a dozen times in Courtroom 478 over the course of months or even years before the case was concluded.
141. In a review of 8,284 civil-forfeiture cases, property owners had been forced to return to Courtroom 478 an average of five times, risking a default judgment if they failed to appear just once. And more than 100 property owners were required to return to Courtroom 478 ten times or more. See Isaiah Thompson, "The Cash Machine," Philadelphia City Paper, Nov. 28, 2012, http://citypaper.net/article.php?The-Cash-Machine-19189.
142. On or about June 2, 2015, the Philadelphia D.A.'s Office sent the State Court Administrators a memorandum that summarized the process at that time for administering forfeiture cases and proposed alternatives. This memorandum explained that forfeiture proceedings were conducted in the following way:
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 33 of 75
(a) Civil-forfeiture proceedings were being adjudicated in criminal court, notwithstanding their civil form and the applicability of the Pennsylvania Rules of Civil Procedure;
(b) Courtroom 478 was being staffed by the State Court Administrators with only a trial commissioner who served a ministerial role, and no judge was present;
(c) Instead, proceedings in Courtroom 478 were being run by prosecutors who advised property owners as to the process going forward, discussed settlement, and presented owners with interrogatories to be completed;
(d) There was no record of proceedings in Courtroom 478 as no court reporter or stenographer was assigned to the room;
(e) There was no opportunity to challenge the seizure or retention of property before an ultimate hearing on the merits of the forfeiture;
(f) Cases were relisted on a monthly basis by the prosecutors numerous times prior to any hearing; and
(g) Very few of these cases proceeded to a hearing on the merits; most were resolved either by agreement or by a default order when the claimant failed to appear. If a claimant failed to appear for a relisting date, the case was usually listed for default.
143. On or about June 25, 2015, State Court Administrators met with the Philadelphia D.A.'s Office to discuss changes to the administration of forfeiture proceedings, including limiting the Philadelphia D.A.'s Office interaction with property owners contesting forfeiture.
D. Despite Incremental Reforms, Constitutional Violations Remain. 144. As an interim measure starting on October 19, 2015, Court of Common Pleas Trial Commissioners, assisted by courtroom clerks, began presiding over all forfeiture and related
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 34 of 75
proceedings in Courtroom 478, which was also equipped with digital recording technology to ensure records of these proceedings. As of that date, the Trial Commissioners began referring all disputed matters to the judge presiding over the Criminal Motions Court in the Criminal Justice Center.
145. On or about January 2016, State Court Administrators assigned a dedicated courtroom in the Criminal Justice Center to handle forfeiture and related cases in place of Courtroom 478. Wednesdays are dedicated to forfeiture and related proceedings involving vehicles.
146. Upon information and belief, under the State Court Administrators' forfeiture proceedings, when property owners are served with forfeiture petitions, they also receive an order signed by the Administrative Judge-Trial Division stating the date for an "Initial Listing," also termed a "Pretrial Conference."
147. Property owners are required to answer the forfeiture petition within 30 days of being served. This means that the answer is often due before the Initial Listing where a neutral judicial officer informs property owners-most of whom are unrepresented-both of their rights and of the procedures applicable in forfeiture proceedings.
148. Property owners typically appear at this Initial Listing without any understanding of what is happening to their property and often believe that the proceedings is actually a hearing in their underlying criminal case-not a separate, civil-forfeiture action.
149. Forfeiture proceedings, including Initial Listings, begin at 9:30 a.m. and are divided into two approximately hour-long proceedings. A Common Pleas Court Trial Commissioner oversees the first hour and a Common Pleas Court Judge, presently Senior Judge William J. Mazzola, oversees the second hour when available.
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 35 of 75
150. Forfeiture matters are assigned a criminal docket number when they are opened and remain docketed as criminal matters unless the property owner requests a jury trial.
151. As of at least July 25, 2016, property owners were not advised of their right to request a jury trial until the Initial Listing. If a property owner requests a jury trial, the matter is transferred to the civil division of the Court of Common Pleas and receives a civil docket number.
152. On July 25, 2016, State Court Administrators posted on the First Judicial District's website General Court Regulation No. 2 of 2016 (hereinafter, "General Court Regulation No. 2" or "GCR"), entitled "Proceedings Seeking Civil Forfeiture ofReal Estate and Seized Property."
153. By its own terms, the procedures adopted in the GCR apply neither to motions for return of property under Pennsylvania Rule of Criminal Procedure 588 nor to proceedings involving common law forfeitures.
154. The GCR is also problematic in the following ways: (a) It requires that civil-forfeiture petitions be filed and docketed in the
Criminal Court Division, and that civil-forfeiture proceedings be administered by criminal judges applying criminal rules;
(b) It implicates Fifth Amendment rights by requiring an answer to be filed, with the risk of default judgment as a penalty, without any notice that the answer may be used by the Commonwealth in related criminal proceedings;
(c) It increases the risk of erroneous deprivation of property by deferring an explanation of the forfeiture process until the Pretrial Conference;
(d) It seems to authorize Trial Commissioners to perform adjudicative acts beyond the scope of their authorities, such as deciding whether a case presents any genuine issue
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 36 of 75
of material fact, or whether property owners are knowingly and voluntarily waiving their right to a jury trial;
(e) Property owners are not advised of the burdens of proof that they should need to meet either in the forfeiture action itself or in proving any affirmative defense;
(f) It does not notify property owners of the right to request a prompt postdeprivation hearing until the Pretrial Conference, which occurs after an answer is due and up to 60 days after the forfeiture petition is filed, assuming that the forfeiture petition must be served within 30 days of filing; and
(g) It does not clarify or explain any of the procedures that will apply in a prompt post-deprivation hearing. IV. THE NAMED PLAINTIFFS GET ENSNARED IN PHILADELPHIA'S "ROBO-FORFEITURE"
MACHINE.
155. Defendants' policies and practices threaten each of the Named Plaintiffs with the loss of their property and have already violated and continue to violate their constitutional rights to due process of law.
A. Named PlaintiffChristos "Chris" Sourovelis 156. Around noon on March 27, 2014, Christos "Chris" Sourovelis received a phone call from his neighbor, an officer in the Philadelphia Police Department, informing him out of courtesy that police were at his home. 157. Mr. Sourovelis immediately called his wife, Markela, who was home at the time. When she answered, all Mr. Sourovelis could hear was her sounding very upset and some commotion before the phone fell silent. 158. Mr. Sourovelis promptly left work to drive the hour-long ride home, calling his wife multiple times en route with no answer. Mr. Sourovelis learned later from his wife that the
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 37 of 75
police had taken the phone from his wife and refused to let her answer. 159. When Mr. Sourovelis arrived, he learned that four or five armed law-enforcement
officers came to his home to execute a search warrant, claiming that there were drugs in the house.
160. When the police arrived, Markela saw them from a window on the second floor of the house. However, at the time, she did not know they were police officers as none of the officers were wearing uniforms. They were outside the front door, which was unlocked. By the time Markela made her way downstairs, the officers had opened the door and their family dog Max was barking at the intruders.
161. One of the officers held a gun to Max's head, threatening to shoot if Markela did not restrain the dog so they could gain entry. Markela agreed but when she momentarily closed the front door in order to secure Max in an adjoining bedroom, the officers forced their way into the home and upstairs.
162. The officers searched through the house and found Mr. Sourovelis's then 22-yearold son, Y.S., with a small amount of drugs and drug paraphernalia. Y.S. had been observed by a police officer selling $40 worth of drugs to a confidential informant outside the home on a previous day.
163. Y.S. was an honors student at a community college and at the time of his arrest was in the process of trying to transfer to Temple University. While working at a restaurant-bar as a cook, he had fallen in with the wrong crowd. He has never been in trouble with the law before.
164. After arresting Y.S. and searching other rooms in the home, the officers showed Markela the search warrant. One of the officers said, "This house is gonna be ours. We're
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 38 of 75
gonna break your walls and throw you out. You will be living in the street." 165. Y.S. was charged with seven drug offenses all relating to the same incident. On
April 22, 2014, most of these charges were dropped and Y.S. pleaded no contest to possession with intent to distribute and conspiracy. Because Y.S. had no prior record, he was directed, with the agreement of the Philadelphia D.A.'s Office, to the Philadelphia Treatment Court for a diversion program requiring him to attend a drug rehabilitation program.
166. With Y.S. poised to get the help he needed and his criminal case resolved, Mr. and Mrs. Sourovelis thought the worst was behind them.
167. But on the morning of May 8, 2014, while Mr. Sourovelis was driving Y.S. to the drug rehabilitation center to begin treatment, he received a frantic call from his wife. Officers from the Philadelphia Police Department had come to the home, once again without any notice, to order the family to leave their home.
168. The day before, Assistant District Attorney Daren Waite had applied for and received an ex parte order to seize Mr. Sourovelis's home and seal it to prevent entry.
169. This was how Mr. Sourovelis and his family learned that they could permanently lose their entire home through civil forfeiture due to the small amount of drugs Y.S. had possessed and sold.
170. When Markela protested about being kicked out of her home, one of the police officers told her, "We do this four, five times a week. You will see a judge in a week. You can plead your case to him."
171. The officers gave Markela legal documents including a "Notice of Hearing" which stated that a hearing was set for May 14, 2014, at 9:15 a.m. in Courtroom 478 in City Hall.
172. Made homeless, Mr. Sourovelis, along with his wife and two daughters, were
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 39 of 75
forced to stay at his eldest son's home. Y.S. was still at the residential drug rehabilitation center as required by the Philadelphia Treatment Court and agreed to by the Philadelphia D.A.'s Office.
173. On May 13, 2014, Mr. Sourovelis mistakenly went to Courtroom 478 a day earlier than the scheduled hearing. He was informed that he had to return the next day, but that to expedite matters he could send Assistant District Attorney Daren Waite a letter explaining why he and his family needed to be let back into their home. Markela drafted a letter the same day explaining why the family immediately needed to be let back into its home and faxed it to ADA Waite.
174. On May 14, 2014, Mr. Sourovelis and his wife arrived at Courtroom 478 well before 9:15 a.m. There was no judge in the courtroom.
175. Eventually ADA Waite arrived and called Mr. Sourovelis's case. ADA Waite confirmed that they were not represented by counsel and then advised Mr. Sourovelis that he would not need a lawyer for these proceedings as the matter would not "go to court."
176. ADA Waite had in his hand the fax of Markela's letter explaining why the Sourovelises needed to be let back into their home. ADA Waite informed Mr. and Mrs. Sourovelis that in order to have their home "unsealed" and be let back into their house, he needed to put the contents of the letter onto a legal document for the judge to sign. He advised that after Mr. and Mrs. Sourovelis signed the legal document, he would take the letter over to a judge to sign and that after that, the Sourovelises would be let back into their home.
177. Distraught and overwhelmed, Mr. and Mrs. Sourovelis signed the document without reading it but believing, based on ADA Waite's representations, that they were signing a document that substantively explained why they needed to be let back into their home.
178. ADA Waite told Mr. and Mrs. Sourovelis to meet him outside the judge's
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chambers in a courthouse across the street. They waited outside the room for about 20 minutes before ADA Waite appeared and told them that they would now be allowed back into their home but that they needed to come back to Courtroom 478 on June 13, 2014. ADA Waite never explained the contents of the document signed by Mr. and Mrs. Sourovelis and never explained at that meeting that the document they signed barred their son from entering their home.
179. Mr. and Mrs. Sourovelis learned for the first time that their son was not permitted in their home for any reason while reading through the document on the car ride home after the May 14, 2014 "hearing." At that time, Mr. and Mrs. Sourovelis also learned that the document contained a number of other conditions but without counsel, they were unclear on what the other conditions meant. The other conditions included relinquishing, in any future forfeiture action, both Mr. Sourovelis's innocent-owner defense under Pennsylvania law as well as his constitutional right to challenge the forfeiture of his home as an excessive fine.
180. Because their son was going to be in the residential drug treatment program for the next month, Mr. and Mrs. Sourovelis decided to wait until the next "hearing" in Courtroom 478 to get clarification in person.
181. In all, the seize-and-seal order caused the Sourovelis family to be forcibly evicted from their home for at least seven days. Because ADA Waite had neglected to include language in the agreement directing utility companies to reinstate service, it took an additional three to four days after Mr. and Mrs. Sourovelis signed the initial agreement to get the electric and gas running again, as well as get the front door lock replaced.
182. The forfeiture case against their home was relisted for June 13, 2014. At that "hearing," Mr. and Mrs. Sourovelis asked about when their son could return home. ADA Waite responded that they would both need to follow the process and procedures and when the process
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was completed, their son could return home. 183. ADA Waite explained that the first step in the process was to respond to the
forfeiture petition. He instructed Mr. and Mrs. Sourovelis to respond in handwriting to each allegation contained in the forfeiture petition, marking each allegation as true or false. ADA Waite then filed this hand-marked document as the answer to the forfeiture petition on behalf of the Sourovelises. The case was then relisted once again for July 10, 2014.
184. On July 7, 2014, around 4:30 PM, Mrs. Sourovelis received an email from ADA Waite instructing Mr. Sourovelis to answer the attached interrogatories within thirty days. The accompanying letter stated that the forfeiture action was next listed for July 10, 2014 and directed Mr. Sourovelis to complete the interrogatories and attach and mail all requested documents to ADA Waite. These interrogatories contained 50 questions with numerous subparts. The interrogatories contained an affirmation for Mr. Sourovelis to sign that all foregoing answers are true and correct to the best of his knowledge, information and belief, and that he "understands that the facts herein are verified subject to penalties for unsworn falsification to authorities."
185. At the July 10, 2014 hearing, ADA Waite personally handed Mr. Sourovelis a copy of the interrogatories and relisted the case until August 12, 2014.
186. On or about August 11, 2004, ADA Waite received communication from the public defender representing Y.S. in his criminal matter. The public defender advised ADA Waite that Y.S. had successfully completed an inpatient rehabilitation program and was attending an outpatient program. The public defender requested that Y.S. be permitted to return to the property to reside with his family. ADA Waite agreed to draft an agreement to permit Y.S. to return home.
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187. However, at the August 12, 2014 hearing, ADA Waite offered Mr. Sourovelis a settlement agreement in which the Philadelphia D.A.'s Office would withdraw the forfeiture petition if Mr. Sourovelis would agree to:
• Waive his right to a trial on the merits of the forfeiture petition against his home, including his right to present evidence and cross-examine witnesses presented by the Commonwealth;
• Admit that his home was being used to commit and/or facilitate a controlledsubstance violation;
• Waive his innocent-owner defense under 42 Pa. Cons. Stat. § 68020); • Agree that any future controlled-substances violation with a "nexus" to his home
would result in the Commonwealth's ability to forfeit the property; • Subject "any prospective lessee, tenant, buyer or transferee of the property" to
prior review by the Commonwealth; • Give the Commonwealth power to reject any prospective lessee, tenant, buyer, or
transferee;
• Screen prospective lessees, tenants, buyers, residents, or transferees of the property, including credit history and reference checks;
• Agree that the District Attorney's Office can re-file the forfeiture petition if it determines the agreement is violated; and
• Waive any affirmative defense based on resjudicata, laches, innocent owner, or the Excessive Fines Clause, if the Commonwealth refiles the forfeiture petition in the future.
188. Due to these conditions, Mr. Sourovelis refused to sign the agreement. 189. Y.S. completed his residential drug rehabilitation program on or about June 10, 2014 and since that time has been living with his older brother, sleeping on the couch for the past five months. Y.S. was anxious to start his life over and felt he could not really move past his mistakes while he was still living in limbo at his brother's place. He wanted the security of being back at home with his parents. Additionally, Y.S. found it difficult to apply for a job or
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apply to go back to school because he does not have reliable means of transportation at his brother's home.
190. Both Mr. and Mrs. Sourovelis wanted their youngest son to be back in their home so they could keep an eye on him and make sure that he complies with the requirements of the diversion program and keeps out of additional trouble.
191. Mr. Sourovelis and his family suffered irreparable injuries from being evicted from their home without notice or an opportunity to be heard before a neutral arbiter. While evicted, they were forced to stay with their eldest son. Mr. Sourovelis and his wife had to sleep on one sofa while his two daughters, the older of whom was pregnant, slept on another sofa. The entire family had to go without many of their personal effects, including sufficient changes of clothes. Their daily family routine was interrupted. To take just one example, their youngest daughter was unable to attend school for six days because her brother's home was not on the bus route and Mr. and Mrs. Sourovelis's work schedules did not permit them to drive her to and from school.
192. Mr. Sourovelis continued to suffer hardship due to his son being barred from living in, or even entering, his home.
193. Mr. Sourovelis has suffered and continues to suffer hardship by being required to take off from work and drive 30-40 minutes fighting traffic to attend "hearings" in Courtroom 478.
194. Mr. Sourovelis was also threatened with irreparable injury of losing his home of almost eight years, where his wife, two daughters, and until recently his youngest son, live with Max the dog. Mr. Sourovelis has spent significant time, labor, and money in furnishing and renovating his home, including a garden in the backyard that contains custom masonry work
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built by Mr. Sourovelis himself.

195. In December of 2014, four months after Named Plaintiff Sourovelis brought this

federal class action, the Philadelphia D.A. 's Office submitted a consent motion for

discontinuance of the forfeiture action against Mr. Sourovelis's home. Under the terms of this

discontinuance, Mr. Sourovelis agreed to take reasonable measures to ensure that no controlled-

substance violations occur on his property. At the time of the filing of the First Amended

Complaint, Mr. Sourovelis faced irreparable injury oflosing his family's home.

B.

Named PlaintiffDoila Welch

. 196. On Saturday, February 1, 2014, while still in bed in the front bedroom on the

second floor, Plaintiff Doila Welch was startled by police officers running upstairs to her

bedroom with guns drawn.

197. When the police arrived, Ms. Welch's daughter (who recently turned 12) was

showering in the second-floor bathroom while her son (who was 23 at the time) was in his

bedroom on the third floor.

198. Police ordered all occupants downstairs, barely allowing Ms. Welch's daughter to

get dressed. Due to her physical disability, Ms. Welch required assistance in getting dressed and

descending the stairs. A female officer was called to assist.

199. The police officers conducted a full search of the house, kicking in Ms. Welch's

son's bedroom door, breaking his gaming system, and taking $40 in cash that was on his bedside

table, money Ms. Welch had given him as an allowance for assisting her with errands due to her

disability.

200. The officers did not find any drugs or drug paraphernalia in Ms. Welch's son's

room.

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201. The officers also seized $30 from Ms. Welch's bedroom, money she had set aside to give her daughter to buy a school jacket with the school logo.
202. Unbeknownst to Ms. Welch, however, her husband had been selling marijuana out of her home. Ms. Welch and her husband had been alienated for some time due to marital problems. And because Ms. Welch is frequently bed-ridden on the second floor, while her husband stayed on the main floor, they do not interact often.
203. At the time of the police entry, Ms. Welch's husband, Ronald "Renal" Requena, Sr., was in the kitchen on the main floor. Police arrested Mr. Requena, Sr. for selling drugs.
204. Police also arrested Ms. Welch's son on conspiracy charges. 205. The police officers handed Ms. Welch a search warrant after taking her husband and son away. 206. Ms. Welch thought the nightmare was over. Putting aside her anger at her husband for placing her family in this situation, she focused on getting her son, who was innocent of any wrongdoing, out of jail. 207. On February 21, 2014, police officers again showed up to Ms. Welch's home, without any notice. This time, the police informed Ms. Welch and the remaining occupants that everybody living in the house had to gather their belongings and leave because the City was seizing the house. Ms. Welch was handed a set of legal documents. 208. After Ms. Welch's protests and pleading based on her and her sister's medical conditions, police told her that they could remain in the house but that both Mr. Requena and Ms. Welch's son would not be permitted in the house. 209. On February 19, 2014, Assistant District Attorney James Dellafiora had filed a forfeiture petition against Ms. Welch's home. On February 19, 2014, ADA Dellafiora also
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submitted an ex parte application to seize Ms. Welch's home and seal it to prevent entry, which was granted the same day.
210. On February 19, 2014, a "hearing" on the civil-forfeiture petition was set for March 3, 2014 in Courtroom 478. Due to a snowstorm, this "hearing" was postponed until March 27, 2014 at 9:00 a.m.
211. To attend the hearing on March 27, Ms. Welch had to cancel a doctor's appointment. With the assistance of her son, Ms. Welch arrived around 9:00 a.m. in Courtroom 478.
212. At around 9:35 a.m., ADA Dellafiora called out her case. 213. ADA Dellafiora advised Ms. Welch that she did not need an attorney, but if she wanted one, she could call organizations that provide pro bono legal aid. 214. Ms. Welch did not call legal aid in reliance on ADA Dellafiora's advice that she did not need an attorney. 215. ADA Dellafiora asked Ms. Welch whether she knew her husband was selling marijuana. Ms. Welch replied, no, explaining her marital situation. ADA Dellafiora informed Ms. Welch that he would mail her a set of questions and that she should answer the questions to the best of her ability and should send them back to him. 216. Ms. Welch asked ADA Dellafiora whether her son could return home, explaining how her son assisted her with daily tasks. ADA Dellafiora responded that her son could enter the home to assist her but that he would not be permitted to live there. ADA Dellafiora told Ms. Welch that he would send her documentation to that effect. 217. He also provided Ms. Welch with a notice to return to Courtroom 478 on May 29, 2014.
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218. Because there was no judge in the courtroom and there did not appear to be any kind of hearing, Ms. Welch understood ADA Dellafiora to be saying that her hearing before the court was cancelled and rescheduled for May 29, 2014.
219. Upon information and belief, after this "hearing" concluded, an assistant district attorney went to Courtroom 504 in the Criminal Justice Center and presented a proposed order temporarily restraining the property from being "sold, assigned, optioned, given, bequeathed, or transferred in any manner" for the pendency of the litigation. The proposed order was signed the same day.
220. More than a week passed without Ms. Welch receiving any documentation on the status of her son or hearing anything from ADA Dellafiora. Ms. Welch left several messages for ADA Dellafiora that were not returned.
221. On May 29, 2014, Ms. Welch, with the assistance of her son, again made her way to Courtroom 478. She brought with her a copy of the probate papers showing that she was one of the rightful heirs to her parents' estate.
222. At this "hearing," ADA Dellafiora advised Ms. Welch that most likely the forfeiture action could be resolved without any complications if she would pay a fine.
223. ADA Dellafiora also advised Ms. Welch that he would send her an email containing a "questionnaire" for her to complete.
224. Upon information and belief, the "questionnaire" ADA Dellafiora was referencing is the same pattern form interrogatories received by Plaintiff Sourovelis.
225. At the May 29, 2014 hearing, Ms. Welch informed ADA Dellafiora that all charges against her son were dismissed for lack of evidence and asked whether her son would be able to reside with her. ADA Dellafiora responded in the affirmative but indicated that her
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husband would still not be permitted to enter the property. He promised to send Ms. Welch paperwork documenting this arrangement.
226. No court has entered any order prohibiting Ms. Welch's son or husband from entering the property.
227. Because Ms. Welch was previously scheduled to be out of the country from midJune through August 8, her forfeiture case was relisted for August 12, 2014. The Institute for Justice secured pro bono counsel for Ms. Welch in her state forfeiture proceeding.
228. On August 12, 2014, ADA Dellafiora provided Ms. Welch's counsel in the state forfeiture proceeding and her counsel in the instant federal lawsuit with a copy of a proposed order permitting Ms. Welch to "unseal and re-enter" her home under the following conditions:
• Mr. Renal Requena is "not permitted to enter the property until the resolution of litigation on this matter";
• Ronald L. Requena, Jr. "is permitted to enter the property to assist in the daily care of Doila Welch" but "is not to reside at the property until this matter is settled";
• "Failure to abide by the above-listed conditions or [future] violations of the Controlled Substances Act with a nexus to the Property shall result in this unsealing order becoming NULL and VOID, and the property shall be immediately resealed"; and
• Ms. Welch "shall lose the right to assert an innocent owner defense in this forfeiture matter."
229. Based on the clear language of this proposed order, Ms. Welch reasonably believed that she and her family would be evicted from their home if she failed to sign the order. Ms. Welch did not want to sign the proposed order because she believed her son should be allowed to reside in the home.
230. Ms. Welch has sustained irreparable injuries due to Defendants' civil-forfeiture policies and practices.
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231. Ms. Welch has sustained irreparable injuries due to her son being temporarily barred from living in her home. Her son helps her with various tasks like cooking her breakfast and taking her to her doctor's appointments. For almost two months, Ms. Welch was deprived of her son's assistance. During that time, Ms. Welch would have to take a taxi to any appointments because she cannot use public transportation without assistance.
232. Ms. Welch suffered anxiety from the uncertainty as to whether her son is allowed to live with her or whether the City and District Attorney Defendants will permanently bar her son from her home.
233. Ms. Welch has also suffered hardship by being required to endure physical exertion to attend "hearings" in Courtroom 478 again and again at which she did not get an opportunity to be heard by a fair and neutral arbiter.
234. In December of 2014, four months after Named Plaintiff brought this federal class action, the Philadelphia D.A.'s Office submitted a consent motion for discontinuance of the forfeiture action against Ms. Welch's home. Under the terms of this discontinuance, Ms. Welch agreed to take reasonable measures to ensure that no controlled-substance violations occur on her property. At the time of the filing of the First Amended Col!}plaint, Ms. Welch faced irreparable injury oflosing her family's home.
C. NamedPlaintiffNorysHernandez 235. Plaintiff Norys Hernandez and her sister, Sonia Gonzalez, together own a rowhouse located at 3415 North Marshall Street, in which Sonia resided with her children. 236. On April 17, 2014, Mrs. Hernandez's nephew, who is the son of Sonia, was arrested outside 3415 North Marshall Street for selling and possessing a small amount of drugs. 237. On or about June 2, 2014, Assistant District Attorney Steven Agami filed an ex
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parte application to seize and s.eal 3415 North Marshall Street. 238. On June 2, 2014, the Court of Common Pleas entered an order authorizing the
City and District Attorney Defendants to seize and seal the property. 239. At the same time, ADA Agami filed an ex parte application for a restraining order
restraining the sale, encumbrance, assignment, gifting, or transfer of the property. 240. On or about June 3, 2014, Mrs. Hernandez was informed that the City and District
Attorney Defendants were pursuing civil forfeiture against the property and that, pursuant to the seize-and-seal order, no one could enter the property.
241. At the time, Ms. Gonalzez was in Puerto Rico. Accordingly, Ms. Gonzalez was unable to retrieve any of her clothing, personal belongings, or even medication for the entire duration the "seize and seal" order was in effect.
242. A "hearing" on the order to seize and seal the property, the restraining order, and the petition for forfeiture was set for June 12, 2014.
243. At the "hearing" ADA Agami instructed Mrs. Hernandez to return to Courtroom 478 at the next listing with a copy of the deed and documentation of why Ms. Gonzalez needed to be let back into the house. ADA Agami did not propose any agreement to unseal the property.
244. The forfeiture case was relisted for August 12, 2014 for a "hearing" in Courtroom 478.
245. At the August 12, 2014 "hearing," ADA Agami indicated Mrs. Hernandez and Ms. Gonzales could return to their property if they would sign a proposed unsealing order containing conditions and provided their counsel in the state court forfeiture proceeding with a copy of the proposed unsealing order.
246. Mrs. Hernandez and Ms. Gonzalez signed the agreement on October 6, 2014 and
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were let back into their home. Under the terms of the agreement, Mrs. Hernandez's nephew, Ms. Gonzalez's son, was prohibited from entering the property.
247. Mrs. Hernandez suffered from irreparable injury from having her property seized and sealed without any notice or opportunity to be heard.
248. On or about June of 2016, the Philadelphia D.A.'s Office entered a consent motion for discontinuance of the forfeiture matter, whereby Mrs. Hernandez and Ms. Gonzalez agreed to take reasonable measures to ensure that no controlled-substance violations would occur on their property subsequent to the execution of the agreement. At the time of the filing of the First Amended Complaint, Mrs. Hernandez faced irreparable injury of losing her family's home.
D. Named PlaintiffNassir Geiger 249. On January 17, 2014, around 9:00 p.m., Mr. Geiger was driving his 2000 Buick LeSabre through a McDonald's parking lot on the 2800 block of Cottman Avenue, Philadelphia, Pennsylvania. When he recognized an acquaintance of his, Mr. Geiger stopped to say hello. After a few minutes of small talk about the weekend, Mr. Geiger drove away. 250. Unbeknownst to Mr. Geiger, his acquaintance had been arrested shortly before for possession of 0.4 grams of powder cocaine. 251. Shortly thereafter, Mr. Geiger was stopped by police officers near the 3200 block of Cottman Avenue. The officers searched the car but did not find any drugs or drug residue. Nevertheless, the officers seized Mr. Geiger's car and $580 he was carrying because the police found empty ziplock bags in the car. 252. Police arrested Mr. Geiger and only gave him a property receipt for $465.00 despite seizing $580.00. The police did not give Mr. Geiger a property receipt for his car. 253. On the advice of a court-appointed defense attorney, Mr. Geiger participated in
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the Accelerated Misdemeanor Program, Tier I ("AMP-I"), which is a nonconviction program. 254. As part of the AMP-I program, in exchange for paying a $200 fine and
performing 20 hours of community service, all records of Mr. Geiger's arrest on January 17, 2014 were expunged.
255. Participation in AMP-I did not include forfeiture of Mr. Geiger's car or his money. To the contrary, Mr. Geiger's defense attorney advised him that participation in AMP-I was the easiest way to get his car and money back.
256. Mr. Geiger believed that his car and money were simply seized as evidence and that they would be returned to him upon complying with the terms of the plea agreement. He learned only later that the Philadelphia D.A.'s Office was attempting to permanently keep his property through civil forfeiture.
257. The Philadelphia D.A.'s Office never informed Mr. Geiger that he would need to file a motion for return of property in order to stop storage fees from accruing on his vehicle.
258. Sometime after May 23, 2014, Mr. Geiger received a notice of forfeiture for his car. The notice stated that he must appear in Courtroom 478 in City Hall at 9:00 a.m. on June 25, 2014.
259. When Mr. Geiger appeared in Courtroom 478, there was no judge. Instead he spoke with a female employee of the Philadelphia D.A.'s Office. Upon information and belief, this female employee is not a prosecutor, but rather, a paralegal or other support personnel.
260. Mr. Geiger was told that, instead of completing a request for interrogatories, he could choose to forfeit his car. Mr. Geiger declined to consent to the forfeiture of his car and completed the interrogatories to the best of his ability without the assistance of counsel, as he was unrepresented at the time.
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261. The cover letter to the interrogatories referenced "Request for Interrogatories, Innocent Owner-Vehicle." The letter was unsigned and incorrectly dated January 14, 2010.
262. Mr. Geiger inquired about his money that was seized. The Philadelphia D.A.'s Office employee replied she would look into it. She also instructed Mr. Geiger to return to Courtroom 478 on August 13, 2014 for another "hearing."
263. At the August 13, 2014 "hearing," Assistant District Attorney Jennifer Kralle informed Mr. Geiger and his counsel that Mr. Geiger owed more than $1,800 in storage fees accrued since his car had been seized. She further informed him that he would need to pay those fees to get his car returned.
264. Based on a review of records of the Court of Common Pleas, the Philadelphia D.A.'s Office separately filed a forfeiture petition against $465.00 owned by Mr. Geiger. The "hearing" on that forfeiture petition was listed for March 11, 2014, and again on June 16, 2014. Mr. Geiger never received a copy of the hearing notice or forfeiture petition for his money. Because Mr. Geiger failed to appear at these "hearings," his money was forfeited through a default judgment.
265. On or about October 22, 2014, Mr. Geiger appeared with his counsel in the forfeiture action before the Honorable Vincent Melchiorre in Courtroom 504 to, among other things, request an extension for the next "hearing."
266. During this hearing, Assistant District Attorney Kralle was "baffled" when Mr. Geiger's counsel indicated he was prepared for a preliminary hearing because, as she stated on the record: "[I]n forfeiture cases there are no preliminary hearings." The court later concurred, stating that"[o]nee you leave 478, you go to trial; no preliminary hearing."
267. Due to the City and District Attorney Defendants' policies and practices, Mr.
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Geiger was forced to go without any car for more than two months. During this period, instead of the 10-minute drive to work, he was forced to take public transportation, switching buses, thereby increasing his commuting time to 45 minutes to an hour. On other occasions, he was forced to borrow his mother's car.
268. Mr. Geiger found that being deprived of his car was unsustainable. Toward the end of March, he purchased a used 2006 Cadillac for $17,800. Mr. Geiger financed this purchased with a five-year bank loan in which he makes monthly payments of $340.00.
269. Additionally, due to state law, Mr. Geiger was forced to pay more than twice as much for car insurance because his 2006 Cadillac is financed whereas he owned his 2000 Buick LeSabre outright.
270. At the time the First Amended Complaint was filed, Mr. Geiger faced the irreparable injury of losing his car.
271. About April 6, 2015, Mr. Geiger entered into a settlement agreement whereby he agreed to pay $500 in storage fees in exchange for return of his vehicle. Assistant District Attorney Kralle filed a Praecipe to Settle, Discontinue and End the forfeiture matter on or about May 3, 2015.
E. PlaintiffMembers ofthe Putative Class. 272. These factual allegations pertaining to Plaintiffs Sourovelis, Welch, Hernandez, and Geiger are similar to the experiences of other property owners in Philadelphia threatened with civil forfeiture. 273. The City and District Attorney Defendants' policies and practices have caused members of the class extreme hardship such as being left homeless or being left without needed medication after either it or the property housing the medication has been seized.
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274. The City and District Attorney Defendants' policies and practices have forced property owners to evict friends and family members from living with them in order to have their properties unsealed and returned to them.
275. The City and District Attorney Defendants' policies and practices have forced property owners to agree to waive statutory and constitutional defenses to potential forfeiture proceedings in the future in order to have their properties unsealed and returned to them or to have the forfeiture petitions withdrawn.
276. The City and District Attorney Defendants' practice ofretaining forfeited property and its proceeds has injected a direct financial incentive and conflict of interest that has impermissibly tainted the seizure and forfeiture of the property.
277. Defendants' policies and practices have deprived property owners a prompt postdeprivation hearing to challenge the retention of their property before a neutral arbiter prior to final disposition of their forfeiture matter.
278. Defendants' policies and practices have forced property owners to repeatedly return to Courtroom 478 for "hearings" run by Defendants or else risk losing their property by a default judgment.
279. Defendants' policies and practices have resulted in the entry of default judgments, entered without notice or due process of law, which cause the permanent loss of property.
280. Defendants' policies and practices have forced property owners to appear in Courtroom 478 for "hearings" that are run by Philadelphia prosecutors who have a direct financial interest in the outcome of the proceedings.
281. Defendants' policies and practices in administering forfeiture cases have deprived property owners of notice and due process.
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CLASS ACTION ALLEGATIONS 282. Named Plaintiffs Sourovelis, Welch, Hernandez, and Geiger seek to maintain this action on behalf of themselves and all others similarly situated under Rule 23(b)(2) of the Federal Rules of Civil Procedure. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 283. The Named Plaintiffs propose the following class definition: All persons who hold legal title to or otherwise have a legal interest in property against which a civil-forfeiture petition was filed by the Philadelphia District Attorney's Office on or after August 11, 2012, or will in the future be filed, in the Court of Common Pleas of Philadelphia County. 284. This action meets all the Rule 23(a) prerequisites of maintaining a class action. 285. Numerosity under Rule 23(a)(l): The putative class is so numerous that joinder of all members is impracticable.
a. In 2011 alone, the Philadelphia D.A.' s Office filed 6,560 civil-forfeiture cases.
b. Between June 1, 2014, and July 31, 2014, the Philadelphia D.A.'s Office listed 2,220 forfeiture cases for "hearings" in Courtroom 478 of City Hall.
c. Since August 11, 2012, the Public Nuisance Task Force filed 20,590 forfeiture petitions related to controlled-substance forfeitures.
286. Commonality under Rule 23(a)(2): This action presents questions of law and fact common to the putative class, resolution of which will not require individualized determinations of the circumstances of any particular plaintiff. Common questions of fact include, but are not limited to:
a. Do Defendants have a policy and practice of failing to provide prompt post-seizure hearings to individuals whose property has been seized?
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b. Do Defendants have a policy and practice of repeatedly "relisting" forfeiture actions and requiring property owners to make monthly court appearances, each of which increase the risk of a default judgment? c. Do the City and District Attorney Defendants have a policy and practice of retaining all forfeited property and its proceeds? d. Do Defendants have a policy and practice of having assistant district attorneys control forfeiture proceedings in Courtroom 478? e. Do the procedures governing administration of forfeiture and seized property cases deprive property owners of due process? Common questions of law include, but are not limited to, whether the above-described policies and practices violate the Due Process Clause of the Fourteenth Amendment. 287. Typicality Under Rule 23(a)(3): The Named Plaintiffs' claims are typical of the claims of the putative class. a. The Named Plaintiffs' claims as well as those of the putative class members arise out of the same course of conduct by Defendants, are based on the same legal theories, and involve the same harms. b. Additionally, the Named Plaintiffs are seeking the same relief for themselves and members of the putative class. 288. Adequacy ofRepresentation under Rule 23(a)(4): The interests of the putative class are fairly and adequately protected by the Named Plaintiffs and their attorneys. a. The Named Plaintiffs adequately represent the putative class because their interests are aligned and there are no conflicts of interest between the Named Plaintiffs and members of the putative class.
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b. The Named Plaintiffs and putative class members are ably represented pro bono by the Institute for Justice and local counsel David Rudovsky. Founded in 1991, the Institute for Justice is a nonprofit, public-interest law firm that litigates constitutional issues nationwide. The Institute for Justice has particular expertise in protecting property rights, including challenging civil-forfeiture programs on constitutional grounds. In bringing this action, the Institute for Justice has done extensive work to identify and investigate Plaintiffs' claims. David Rudovsky, a founding partner of Kairys, Rudovsky, Messing & Feinberg, LLP, has practiced for over forty-five years and has considerable experience in bringing class actions. 289. This action also meets the requirements of, and is brought in accordance with, Rules 23(b)(2) of the Federal Rules of Civil Procedure. Defendants have acted, or refused to act, on grounds generally applicable to the class. Final injunctive and declaratory relief is appropriate with respect to all of the members of the class.
CONSTITUTIONAL VIOLATIONS3
FIRST CLAIM FOR RELIEF ASSERTED AGAINST THE CITY AND DISTRICT ATTORNEY DEFENDANTS:
Failing to Provide Notice or a Hearing Before Seizing Real Property Violates the Due Process Clause of the Fourteenth Amendment.
290. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in ,-r,-r 1 through 289 above.
291. Under the City and District Attorney Defendants' policies and practices, Plaintiffs
3 On November 4, 2015, the Court approved a class-wide settlement agreement on the first two Claims for Relief. (Order, ECF No. 104; Ex. A.) This Court dismissed these claims without prejudice under Rule 41(a)(2), but still retains jurisdiction over these two claims to enforce the terms of the settlement. (Id. at 13.) In the interest of avoiding confusion regarding how the claims are referenced, Plaintiffs retained the numbering of the claims from the original complaint.
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Sourovelis, Hernandez, and Welch, as well as members of the putative class, first learn that their home is threatened with forfeiture when officers of the Philadelphia Police Department appear at their home, and armed with the order to "seize and seal" the premises, forcibly evict them and all residents without any prior notice or opportunity to be heard.
292. The City and District Attorney Defendants and their agents have seized and sealed the homes of Named Plaintiff Sourovelis and members of the putative class like Ms. Gonzales without first providing them with notice and a meaningful opportunity to be heard.
293. The City and District Attorney Defendants and their agents have seized and s.ealed real property owned by Named Plaintiff Hernandez and members of the putative class without first providing them with notice and a meaningful opportunity to be heard.
294. The City and District Attorney Defendants and their agents have applied for and received orders to seize and seal the home of Named Plaintiff Welch and members of the putative class, like Ms. Gonzales, without first providing them with notice and a meaningful opportunity to be heard.
295. The City and District Attorney Defendants have a policy and practice of relying on 42 Pa. Cons. Stat. § 6802(f) and (g) to seize real property without first providing owners or residents of the property with notice and a meaningful opportunity to be heard.
296. It is the policy and practice of the Philadelphia D.A. 's Office to apply for ex parte orders to seize and seal real property without providing any particularized evidence that the order is needed to preserve the specific property for civil forfeiture or that providing notice will jeopardize the availability of the property for forfeiture.
297. It is the policy and practice of the Philadelphia D.A.'s Office to apply for ex parte orders to seize and seal real property without proffering any particularized evidence of exigent
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 60 of 75
circumstances as defined by United States v. James Daniel Good Real Property, 510 U.S. 43 (1993), and its progeny.
298. It is the policy and practice of the Philadelphia D.A.'s Office to treat mere possession or the single sale of controlled substances in a particular real property as exigent circumstances warranting ex parte seizure. However, the Supreme Court has recognized that the presence of controlled substances in real property does not by itself constitute exigent circumstances sufficient to justify ex parte seizure of real property.
299. It is the policy and practice of the Philadelphia D.A. 's Office to apply for an ex parte order to seize and seal real property without proffering any evidence that a temporary restraining order restricting transfer of the property or other less restrictive means will be insufficient to protect Defendants' interests during the pendency of the civil-forfeiture proceedings.
300. The City and District Attorney Defendants' policy and practice of seizing real property without first providing notice and a meaningful opportunity to be heard violates the Due Process Clause of the Fourteenth Amendment.
301. The City and District Attorney Defendants' policy and practice of applying for and executing ex parte seizures of real property without any evidence of exigent circumstances or necessity violates the Due Process Clause of the Fourteenth Amendment.
302. As a direct and proximate result of the City and District Attorney Defendants' actions, Plaintiffs Sourovelis, Hernandez, Welch, and the members of the putative class have suffered irreparable injury to their constitutional rights, including but not limited to being forcibly evicted from their homes and having their real property seized.
303. As a direct and proximate result of the City and District Attorney Defendants'
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 61 of 75
policies and practices of seizing real property including homes without providing owners or residents notice or an opportunity to be heard, members of the putative class will suffer irreparable injury to their constitutional rights, including but not limited to being forcibly evicted from their homes or having their real property seized.
304. Declaratory and injunctive relief is necessary to remedy the City and District Attorney Defendants' unconstitutional conduct of seizing real property without notice or a hearing. Without appropriate declaratory and injunctive relief, the City and District Attorney Defendants' unconstitutional policies and practices will continue.
SECOND CLAIM FOR RELIEF ASSERTED AGAINST THE CITY AND DISTRICT ATTORNEY DEFENDANTS:
Compelling Property Owners to Give Up Constitutional Rights Violates the Due Process Clause of the Fourteenth Amendment. 305. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in ,-r,-r 1 through 304 above. 306. After applying for and obtaining orders to seize and seal the homes of Plaintiffs Sourovelis, Hernandez, Welch, and members of the putative class on the basis of ex parte applications that deprive them of notice or an opportunity to be heard, the City and District Attorney Defendants and their agents require property owners to agree to certain conditions in order to re-enter their properties. 307. The City and District Attorney Defendants propose similar conditions as part of settlement deals. 308. The City and District Attorney Defendants have a policy and practice of compelling property owners to agree that if the City and District Attorney Defendants attempt to forfeit the property in the future, the property owner waives his or her rights to assert an
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innocent-owner defense under 42 Pa. Const. § 68020) or to assert a constitutional defense that forfeiture of the property would constitute an excessive fine.
309. The City and District Attorney Defendants also have a policy and practice of compelling property owners to agree to bar specific individuals from their property as a condition of being let back into their property after it has been seized ex parte or as a condition of withdrawing the forfeiture petition.
310. The City and District Attorney Defendants' policy and practice of compelling property owners to give up constitutional and statutory rights in order to have their homes and other real property unsealed violates the Due Process Clause of the Fourteenth Amendment because it seeks to impair the property owners' access to the courts to assert their constitutional rights.
311. The City and District Attorney Defendants' policy and practice of compelling property owners to give up constitutional and statutory rights in order to have their homes and other real property unsealed violates the Due Process Clause of the Fourteenth Amendment because it unacceptably raises the risk of an erroneous deprivation, in that it would allow the City and District Attorney Defendants to forfeit the property no matter how innocent the property owner is or how disproportionate the forfeiture would be in light of the gravity of the offense.
312. The City and District Attorney Defendants' policy and practice ofrequiring property owners to give up constitutional and statutory rights in order to have their homes and other real property unsealed violates the Due Process Clause of the Fourteenth Amendment because this kind of waiver does not further any compelling, substantial, or even legitimate interest of the City and District Attorney Defendants.
313. The City and District Attorney Defendants' policy and practice of compelling
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 63 of 75
property owners to give up constitutional and statutory rights in order to settle the forfeiture action violates the Due Process Clause of the Fourteenth Amendment because it seeks to impair the property owners' access to the courts to assert their constitutional rights.
314. The City and District Attorney Defendants' policy and practice of compelling property owners to give up constitutional and statutory rights in order to settle the forfeiture action violates the Due Process Clause of the Fourteenth Amendment because it unacceptably raises the risk of an erroneous deprivation.
315. The City and District Attorney Defendants' policy and practice ofrequiring property owners to give up constitutional and statutory rights in order to settle the forfeiture action violates the Due Process Clause of the Fourteenth Amendment because this kind of waiver does not further any compelling, substantial, or even legitimate interest of the City and District Attorney Defendants.
316. As a direct and proximate result of the City and District Attorney Defendants' actions, policies, and practices, Plaintiffs Sourovelis, Hernandez, Welch, and members of the putative class have suffered injury to their constitutional rights, including but not limited to their rights to free association and their right to contest future forfeiture proceedings the City and District Attorney Defendants pursue against their real properties.
317. Declaratory and injunctive relief is necessary to remedy the City and District Attorney Defendants' unconstitutional practice of forcing property owners to forego constitutional and statutory rights. Without appropriate declaratory and injunctive relief, the City and District Attorney Defendants' unconstitutional policies and practices will continue.
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 64 of 75
TmRD CLAIM FOR RELIEF ASSERTED AGAINST ALL DEFENDANTS:
Failing to Provide an Adequate Prompt, Post-Deprivation Hearing Violates the Due Process Clause of the Fourteenth Amendment.
318. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in ~~ 1 through 317 above.
319. After seizing or restraining property for civil-forfeiture determinations, Defendants and their agents failed to give the Named Plaintiffs and members of the putative class notice of how to seek return or remove any restraints on their property.
320. After seizing or restraining property for civil-forfeiture determinations, Defendants and their agents continue to fail to give members of the putative class notice of how to seek return or remove any restraints on their property.
321. After seizing or restraining property for civil-forfeiture determinations, Defendants and their agents failed to provide the Named Plaintiffs and members of the putative class with a prompt hearing at which they would have been able to challenge, before a neutral arbiter, the basis for the seizure, restraint, and/or indefinite retention of their property pending an ultimate determination on the merits of whether the property should be forfeited.
322. After seizing or restraining property for civil-forfeiture determinations, Defendants and their agents continue to fail to provide members of the putative class with a prompt hearing at which they would be able to challenge, before a neutral arbiter, the basis for the seizure, restraint, and/or indefinite retention of their property pending an ultimate determination on the merits of whether the property should be forfeited.
323. The City Defendants have a policy and practice of seizing, restraining, or indefinitely retaining property for civil forfeiture when they know or should reasonably know
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 65 of 75
that there is no meaningful opportunity to contest the seizure or restraint at a meaningful time before the ultimate hearing on the merits of forfeiture.
324. The District Attorney Defendants have a policy and practice of initiating civilforfeiture proceedings against seized or restrained property when they know or should reasonably know that there is no meaningful opportunity to contest the seizure or restraint at a meaningful time before the ultimate hearing on the merits of forfeiture.
325. The State Court Administrators have a policy and practice of administering civilforfeiture proceedings against seized or restrained property when they know or should reasonably know that those proceedings afford property owners no meaningful opportunity to contest the seizure or restraint at a meaningful time before the ultimate hearing on the merits of forfeiture.
326. Defendants' policy and practice of seizing and restraining property and initiating and administering civil-forfeiture proceedings, without providing property owners an opportunity for a prompt post-deprivation hearing, violates the Due Process Clause of the Fourteenth Amendment because it fails to give property owners a chance to contest the basis for the deprivation at a meaningful time and in a meaningful manner.
327. General Court Regulation No. 2 fails to cure this due-process violation. It does not apply to "common law forfeitures" conducted by the District Attorney Defendants. And as to statutory forfeitures, it forces property owners to wait at least 60 days before being informed of the availability of post-deprivation relief and then an indefinite amount of time before a prompt, post-deprivation hearing is scheduled.
328. As a direct and proximate result of Defendants' actions, policies, and practices, the Named Plaintiffs and members of the putative class have suffered irreparable injury to their
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constitutional rights, including but not limited to being deprived of their property without notice or a meaningful opportunity to be heard.
!
329. Declaratory and injunctive relief is necessary to remedy Defendants' unconstitutional conduct of seizing, restraining, and/or retaining property without a hearing. Without appropriate declaratory and injunctive relief, Defendants' unconstitutional policies and practices will continue.
FOURTH CLAIM FOR RELIEF ASSERTED AGAINST ALL DEFENDANTS:
Repeatedly "Relisting" Forfeiture Proceedings Violates the Due Process Clause of the Fourteenth Amendment. 330. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in 'ff'ff 1 through 329 above. 331. Defendants have relisted forfeiture actions against property owned by the Named Plaintiffs multiple times, requiring the Named Plaintiffs to return to court for each listing in order to preserve their interest in the property, or else risk losing their property forever through a default judgment. 332. Defendants have a policy and practice of relisting forfeiture actions, typically on a monthly basis, forcing members of the putative class to return to court for each listing in order to preserve their interest in the property, or else lose their property forever through a default judgment. 333. Upon information and belief, Defendants have a policy and practice of relisting forfeiture actions repeatedly until any underlying criminal case against anyone-including people other than the property's owners-is resolved rather than staying the forfeiture proceeding for the pendency of the criminal action.
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334. Defendants' policy and practice of relisting forfeiture actions violates the Due Process Clause of the Fourteenth Amendment because it imposes a high risk of erroneous deprivation of property. The private interests affected by the "relisting" procedure outweigh Defendants' interests in maintaining the policy.
335. General Court Regulation No. 2 does not cure the relisting problem as there continues to be a high risk of erroneous deprivation through default judgements.
336. As a direct and proximate result of Defendants' actions, policies, and practices, the Named Plaintiffs and members of the putative class have suffered irreparable injury by the violation of their constitutional rights.
337. Declaratory and injunctive relief is necessary to remedy Defendants' unconstitutional policy and practice of repeatedly requiring Plaintiffs to appear for proceedings or else risk losing their property forever. Without appropriate declaratory and injunctive relief, Defendants' unconstitutional policies and practices will continue.
FIFTH CLAIM FOR RELIEF ASSERTED AGAINST THE CITY AND DISTRICT ATTORNEY DEFENDANTS:
Retaining Forfeited Property and Its Proceeds Violates the Due Process Clause of the Fourteenth Amendment. 338. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in~~ 1 through 337 above. 339. The City and District Attorney Defendants' policy and practice ofretaining forfeited property and its proceeds injects a personal and institutional interest, financial and otherwise, into enforcing civil forfeiture that brings irrelevant and impermissible factors into the investigative and prosecutorial decision-making process and thereby creates actual bias, the potential for bias, and/or the appearance of bias.
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 68 of 75
340. The Philadelphia D.A.'s Office-the very agency charged with prosecuting civilforfeiture actions-has a direct financial incentive in the outcome of forfeiture proceedings because of the prospect of both economic profit through salaries as well as institutional gain through more and better law-enforcement equipment.
341. D.A. Seth Williams-the very official charged with prosecuting civil-forfeiture actions-has a direct financial incentive in the outcome of forfeiture proceedings because of the prospect of both economic profit through salaries as well as institutional gain through more and better law-enforcement equipment.
342. The Philadelphia D.A.'s Office has shared its forfeiture revenue with the Philadelphia Police Department. Upon information and belief, this practice continues.
343. Police Commissioner Ross and his predecessors-the very officials charged with enforcing civil-forfeiture laws on behalf of the Philadelphia Police Department-have a direct financial incentive in seizing property for civil forfeiture due to, upon information and belief, the prospect of both economic profit through salaries as well as institutional gain through more and better law-enforcement equipment.
344. The direct financial stake that the City and District Attorney Defendants have in the seizure and retention of property for forfeiture poses a conflict of interest, the potential for bias, and the appearance of bias that violate Plaintiffs' rights to the fair and impartial administration of justice guaranteed by the Due Process Clause of the Fourteenth Amendment.
345. As a direct and proximate cause of the City and District Attorney Defendants' actions, policies, and practices, Plaintiffs have suffered irreparable injury to their constitutional rights, including but not limited to the unjust taking of their property.
346. Declaratory and injunctive relief is necessary to remedy the City and District
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 69 of 75
Attorney Defendants' conflict of interest. Without appropriate declaratory and injunctive relief, the City and District Attorney Defendants' unconstitutional policies and practices will continue.
SIXTH CLAIM FOR RELIEF ASSERTED AGAINST ALL DEFENDANTS:
Having Prosecutors Control Forfeiture Proceedings Violates the Due Process Clause of the Fourteenth Amendment. 347. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in ~~ 1 through 346 above. 348. Defendants have a policy and practice of having prosecutors run the forfeiture proceedings, including but not limited to calling the cases, determining whether property owners are in default, and assessing whether any evidence produced by property owners is sufficient. 349. These prosecutors, who are assistant district attorneys in the Public Nuisance Task Force of the Philadelphia D.A.'s Office, have. a direct and institutional financial interest in the outcome of the forfeiture proceedings. 350. Defendants' policy and practice of having prosecutors, with a direct and institutional financial interest in the outcome of the forfeiture proceedings, run those very same forfeiture proceedings, violates the Due Process Clause of the Fourteenth Amendment. 351. As a direct and proximate result of Defendants' actions, policies, and practices, the Named Plaintiffs and members of the putative class have suffered irreparable injury to their constitutional rights. 352. General Court Regulation No. 2 does not cure this due-process violation because it could be easily reversed without declaratory and injunctive relief. 353. Declaratory and injunctive relief is necessary to correct Defendants' unconstitutional conduct of having those with a financial interest in the outcome of the
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 70 of 75
proceedings run those proceedings. Without appropriate declaratory and injunctive relief, Defendants' unconstitutional policies and practices will continue for the foreseeable future.
SEVENTH CLAIM FOR RELIEF ASSERTED AGAINST ALL DEFENDANTS:
Defendants' Administration of Forfeiture Proceedings Violates the Due Process Clause of the Fourteenth Amendment. 354. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in ~~ 1 through 353 above. 355. Defendants are jointly and severally responsible for how civil-forfeiture proceedings are conducted-including notices to property owners, the filing of forfeiture petitions, the timing for answering or otherwise responding to forfeiture petitions, access to court hearings, and other procedures involved in forfeiture proceedings. 356. Defendants' civil-forfeiture policies and practices do not provide property owners with adequate notice of their constitutional rights and legal responsibilities in forfeiture proceedings. 357. Defendants' civil-forfeiture policies and practices occur with criminal judges using criminal rules of procedure, which creates a high risk of erroneous deprivation of property and other constitutional rights. 358. Upon information and belief, the relisting problem is a function of forfeiture cases being docketed in the criminal system and being subject to procedures for criminal cases. 359. As a direct and proximate result of the Defendants' actions, policies, and practices related to civil-forfeiture adjudication, the Named Plaintiffs and members of the putative class have suffered irreparable injury to their constitutional rights, including but not limited to being deprived of their property without meaningful notice or an opportunity to be heard.
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 71 of 75
360. Declaratory and injunctive relief is necessary to remedy Defendants' unconstitutional failure to provide due process in the way in which civil forfeiture proceedings are adjudicated.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request, on behalf of themselves and all others similarly situated, this Court: 1. For an order certifying this action as a class action under Federal Rule of Civil Procedure 23(b)(2); 2. For entry of judgment declaring as unconstitutional under the Due Process Clause of the Fourteenth Amendment:
a. The City and District Attorney Defendants' policy and practice of applying for and executing ex parte orders to seize real property without any evidence of exigent circumstances or necessity; b. The City and District Attorney Defendants' policy and practice of treating the presence of drugs in real property alone as exigent circumstances; c. The City and District Attorney Defendants' policy and practice of requiring real property owners to waive their future statutory and constitutional defenses as a condition of having their properties unsealed or having the forfeiture petition withdrawn; d. Defendants' policy and practice of failing to provide adequate and prompt post-deprivation hearings to individuals whose property has been seized, restrained, and/or indefinitely retained; e. Defendants' policy and practice of"relisting" forfeiture actions and
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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 72 of 75

requiring property owners to make monthly court appearances, or else risk losing

their property forever through default judgments;

f.

The City and District Attorney Defendants' policy and practice of

retaining all forfeited property and its proceeds;

g. Defendants' policy and practice of having prosecutors, with a direct

financial interest in the outcome of civil-forfeiture proceedings, control the civil-

forfeiture "hearings" in Courtroom 478; and

h. Defendants' policy and practice of depriving property owners of their due-

process rights during the adjudication of civil-forfeiture matters.

3. For an entry of judgment declaring the Defendants jointly and severally liable for

their particular, above-described, unconstitutional policies and practices.

4. For entry of preliminary and permanent injunctions against Defendants

prohibiting them from engaging in the above-described policies and practices.

5. For an entry of judgment declaring the following statutory provisions

unconstitutional:

a. 42 Pa. Const. Stat. § 6802(£) and (g) are unconstitutional as applied to real

property to the extent these provisions authorize ex parte seizure of real

property, without notice or a pre-deprivation opportunity to contest the

seizure;

b. 42 Pa. Const. Stat. § 6801(b) is unconstitutional as applied to the extent it

allows the seizure of real property without fair judicial process;

c. 42 Pa. Const. Stat. §§ 6801 and 6802 are unconstitutional as applied to the

extent these provisions fail to provide for a prompt post-deprivation hearing for

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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 73 of 75

any property;

d. 42 Pa. Const. Stat. § 6801(e)-(h) are unconstitutional as applied to the

extent they create a conflict of interest that denies individuals the fair and

impartial administration of justice.

6. For an entry of judgment requiring Defendants to:

a. dismiss all civil-forfeiture proceedings against property owned by the Named

Plaintiffs and class members;

b. restitution in the form of return of all property seized from the Named

Plaintiffs and class members;

c. remove all restraints imposed against the Named Plaintiffs' and class

members' real property as a consequence of the forfeiture petition, including

but not limited to any lis pendens notices;

7. For an award of $1.00 in nominal damages for each of the seven claims for relief

against the City and District Attorney Defendants. Plaintiffs seek this award for the class as a

whole and do not request nominal damages for each class member;

8. For an award of attorney's fees, costs, and expenses in this action pursuant to 42

U.S.C. § 1988(b); and

9. For further legal and equitable relief as this Court may deem just and proper.

Respectfully submitted,

INSTITUTE FOR JUSTICE
By: /s/ 1>wtpana .At. Sftetfi Darpana M. Sheth* Robert P. Frommer* Robert Peccola* MiladEmam* 901 North Glebe Road Suite 900

KAIRYS, RUDOVSKY, MESSING & FEINBERG
David Rudovsky (1.D. Number 15168) The Cast Iron Building 718 Arch Street Suite 501 South Philadelphia, PA 19106 Email: drudovsky@krlawphila.com

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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 74 of 75

Arlington, VA 22203 E-mail: dsheth@ij.org; rfrommer@ij.org; rpeccola@ij.org; memam@ij.org Tel: (703) 682-9320 Fax: (703) 682-9321
*Admitted Pro Hae Vice
Counsel for Plaintiffs

Tel: (215) 925-4400 Fax: (215) 925-5365

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Case 2:14-cv-04687-ER Document 157 Filed 09/15/16 Page 75 of 75
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 1st day of August, 2016, a true and correct copy of this SECOND AMENDED COMPLAINT was served upon the following counsel of record via electronic mail to: Michael R. Miller City of Philadelphia Law Department 1515 Arch Street, 14th Floor Philadelphia, PA 19102 Tel: (215) 683-5444 Email: Michael.R.Miller@phila.gov Counsel for Defendants City ofPhiladelphia, Mayor James F. Kenney, and Police Commissioner Richard J. Ross Jr. Elizabeth J. Graham-Rubin Bryan C. Hughes Douglas M. Weck, Jr. Office of the District Attorney Three South Penn Square Philadelphia, PA 19107 Tel: (215) 686-8787 Email: bj.graham-rubin@phila.gov;
bryan.hughes@phila.gov; douglas.weck@phila.gov Counsel for Defendants Philadelphia District Attorney's Office and District Attorney R. Seth Williams
Isl :bwtpana .At. Sfretli Darpana M. Sheth Counsel for Plaintiffs
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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOS SOUROVELIS, et al., Plaintiffs,
v. CITY OF PHILADELPHIA, et al.,
Defendants.

: CIVIL ACTION : NO. 14-4687 : : : : : : :

M E M O R A N D U M EDUARDO C. ROBRENO, J.

February 23, 2017

Table of Contents I. INTRODUCTION............................................ 2 II. BACKGROUND.............................................. 4 III. PROCEDURAL HISTORY...................................... 7 IV. PROPOSED CLASS......................................... 11 V. LEGAL STANDARD......................................... 11 VI. DISCUSSION ............................................ 13
A. Rule 23(a)........................................ 13 1. Numerosity................................... 14 2. Commonality.................................. 15 3. Typicality................................... 18 4. Adequacy of Representation................... 21
B. Rule 23(b)(2)..................................... 23

1. Requests for Declaratory Relief and an Injunction Enjoining the Allegedly Unconstitutional Policy and Practice......... 26
2. Request for an Entry of Judgment Requiring the Return of Property....................... 28 a. Restitution Claims Under Rule 23(b)(2).. 30 b. Individualized Monetary Damages......... 36
VII. CONCLUSION............................................. 47
I. INTRODUCTION Named Plaintiffs Christos Sourovelis, Doila Welch,
Norys Hernandez, and Nassir Geiger (“Plaintiffs”), on behalf of themselves and all others similarly situated under Federal Rule of Civil Procedure 23(b)(2), bring this putative class action pursuant to 42 U.S.C. § 1983 against the City of Philadelphia, Mayor James F. Kenney, and Police Commissioner Richard Ross, Jr. (collectively, the “City Defendants”); the Philadelphia District Attorney’s Office (the “D.A.’s Office”) and District Attorney Seth R. Williams (together, the “D.A. Defendants”); and Sheila A. Woods-Skipper, Jacqueline F. Allen, Joseph H. Evers, and Charles A. Mapp (the “First Judicial District Defendants”) (all together, “Defendants”) to enjoin and declare unconstitutional the City of Philadelphia’s civil forfeiture policies and practices. Plaintiffs’ Second Amended Complaint asserts seven claims, all of which allege that Defendants’ policies and practices violate the Due Process Clause of the Fourteenth
2

Amendment. The parties have settled two of Plaintiffs’ seven claims.
In the instant motion, Plaintiffs seek to certify a Rule 23(b)(2) class on their fifth claim for relief (“Count Five”). In Count Five, Plaintiffs claim that the City and D.A. Defendants1 have a policy and practice of retaining forfeited property and its proceeds for use in funding the D.A.’s Office and the Philadelphia Police Department, including paying the salaries of the prosecutors who manage the civil forfeiture program, thereby providing the D.A.’s Office and the Philadelphia Police Department with a direct financial stake in the outcome of civil forfeiture proceedings. Plaintiffs allege that this arrangement creates a conflict of interest, injects impermissible bias into the civil forfeiture process, and violates Plaintiffs’ rights to the fair and impartial administration of justice under the Due Process Clause of the Fourteenth Amendment.
For the reasons that follow, the Court will grant in part and deny in part Plaintiffs’ motion to certify a Rule 23(b)(2) class with respect to Count Five. The Court will certify a Rule 23(b)(2) class with respect to Plaintiffs’ requests for (1) a declaratory judgment declaring

1

Throughout this memorandum, “the City and D.A.

Defendants” shall include all of the City Defendants and both of

the D.A. Defendants.

3

unconstitutional the City and D. A. Defendants’ policy and practice of retaining forfeited property and its proceeds for use by the D.A.’s Office and the Police Department; and (2) an injunction enjoining that policy and practice. However, the Court will decline to certify a Rule 23(b)(2) class with respect to Plaintiffs’ request for an injunction ordering the return of forfeited property on the basis of the alleged constitutional violations.
II. BACKGROUND Civil forfeiture statutes permit states and the
federal government to file actions, under certain circumstances, to obtain ownership of private real and personal property that is related to certain categories of criminal activity. In Pennsylvania, the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. Ann. §§ 6801 and 6802 (the “CSFA”), provides that certain real and personal property that is connected to a violation of Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa. Cons. Stat. Ann. §§ 780-101 to 780-144, is subject to forfeiture by the Commonwealth of Pennsylvania. 42 Pa. Cons. Stat. Ann. § 6801. The CSFA sets forth the property that is subject to forfeiture by the Commonwealth, see id., and provides a procedure for the forfeiture proceedings,
4

which must be filed in the court of common pleas of the judicial district where the property is located, see id. § 6802.
Plaintiffs’ claims in this action relate to property forfeited through civil forfeiture proceedings brought by the D.A.’s Office in the Court of Common Pleas of Philadelphia County. The majority of the property, Plaintiffs allege, was forfeited pursuant to the CSFA. Second Am. Compl. (“SAC”) ¶ 41, ECF No. 157. According to Plaintiffs, Philadelphia’s civil forfeiture program is one of the largest municipal forfeiture programs in the country, and “unprecedented in scale.” Id. at 14, ¶ 54. Plaintiffs allege that the D.A.’s Office forfeited over $90 million worth of property from 1987 to 2012 through civil forfeiture proceedings, id. ¶ 53, yielding an average of $5.6 million in forfeiture revenue each year, id. ¶ 54. Forfeiture data Plaintiffs obtained from the Pennsylvania Office of the Attorney General indicates that the D.A.’s Office collected over $72.6 million in forfeiture revenue from fiscal years 2002 through 2014. Id. ¶ 57. Plaintiffs allege that this amount constitutes nearly one-fifth of the general budget of the D.A.’s Office as appropriated by the City of Philadelphia. Id. ¶ 60.
Plaintiffs allege that the City and D.A. Defendants seize large quantities of personal property for forfeiture, including cash, cell phones, clothing, jewelry, prescription
5

medication, and licensed firearms. Id. ¶ 81. Plaintiffs claim that the majority of the cash seized involves small amounts of money. Id. ¶ 73. For example, in 2010, Philadelphia filed 8,284 currency forfeiture petitions, with an average of $550 at issue in each case. Id. ¶ 74. Plaintiffs also allege that the City and D.A. Defendants file civil forfeiture petitions on 300 to 500 real properties (mostly private residences) each year. Id. ¶ 83. Approximately 100 of these real properties are forfeited and sold at auction annually; and a significant majority of the remaining cases settle under threat of civil forfeiture. Id.
Plaintiffs’ Second Amended Complaint alleges that a number of Defendants’ civil forfeiture policies and practices are unconstitutional. With respect to Count Five, specifically, Plaintiffs allege that the City and D.A. Defendants retain the proceeds of civil forfeiture proceedings, which provide the Defendants with a direct financial incentive in the outcome of the proceedings. Id. ¶¶ 339-43. According to Plaintiffs, the D.A.’s Office and Philadelphia Police Department have a written agreement to share proceeds obtained from forfeiture proceedings, id. ¶¶ 67, 342, and use a large portion of the forfeiture revenue to pay salaries, id. ¶¶ 62, 64. Plaintiffs obtained data from the Pennsylvania Office of the Attorney General indicating that the D.A.’s Office spent over $28.5
6

million of its forfeiture revenue on salaries from fiscal years 2002 through 2014, including the salaries of the prosecutors who administer Philadelphia’s civil forfeiture program. Id. ¶¶ 6264. Plaintiffs claim that the City and D.A. Defendants’ direct financial stake in civil forfeiture proceedings brings irrelevant and impermissible factors into the investigative and prosecutorial decision-making process, which in turn creates a conflict of interest, actual bias, potential for bias, and/or appearance of bias that violates Plaintiffs’ rights to the fair and impartial administration of justice guaranteed by the Due Process Clause of the Fourteenth Amendment. Id. ¶¶ 339, 344.
III. PROCEDURAL HISTORY Plaintiffs initiated this action on August 11, 2014,
ECF No. 1, and amended their complaint on November 17, 2014, ECF No. 40. Plaintiffs filed a Second Amended Complaint on September 15, 2016. ECF No. 157. Plaintiffs Sourovelis, Welch, and Hernandez are the owners of real property against which the D.A. Defendants commenced, under the CSFA, forfeiture that were pending in the Court of Common Pleas of Philadelphia County at the time the First Amended Complaint was filed. SAC ¶¶ 9-17. Plaintiff Geiger is the owner of personal property against which the D.A. Defendants commenced a civil forfeiture proceeding.
7

Id. ¶¶ 18-22. Plaintiffs’ Second Amended Complaint asserts the
following seven claims:
(1) the City and D.A. Defendants’ policy and practice of failing to provide notice or a hearing before seizing real property violates the Due Process Clause of the Fourteenth Amendment (Count One);
(2) the City and D.A. Defendants’ policy and practice of requiring real property owners to waive their constitutional and statutory rights in order to obtain access to their property or have the forfeiture petition withdrawn violates the Due Process Clause of the Fourteenth Amendment (Count Two);
(3) Defendants’ policy and practice of failing to provide a prompt, post-deprivation hearing violates the Due Process Clause of the Fourteenth Amendment (Count Three);
(4) Defendants’ policy and practice of repeatedly “relisting” forfeiture proceedings violates the Due Process Clause of the Fourteenth Amendment (Count Four);
(5) the City and D.A. Defendants’ retention of forfeited property and its proceeds violates the Due Process Clause of the Fourteenth Amendment (Count Five);
(6) Defendants’ policy and practice of prosecutors controlling forfeiture hearings violates the Due Process Clause of the Fourteenth Amendment (Count Six);
(7) Defendants’ administration of civil forfeiture and related proceedings, including notices to property owners, the timing of filings, and access to court hearings, violates the Due Process Clause of the Fourteenth Amendment (Count Seven).
Id. ¶¶ 290-360.
8

Plaintiffs initially sought class certification of Counts One through Six under Rule 23(b)(2) of the Federal Rules of Civil Procedure in a motion filed on August 11, 2014.2 ECF No. 3. The Court denied the motion without prejudice on June 17, 2015, after the parties represented at a hearing that they were in the process of potentially stipulating to class certification, at least as to Count Five. ECF No. 82. The Court later indicated that any subsequent motion for class certification would relate back to the time the initial motion for class certification was filed. ECF No. 87.
On March 16, 2015, Defendants filed a joint motion to dismiss Plaintiffs’ claims. ECF No. 52. The Court denied the motion in a memorandum and order dated May 12, 2015. ECF Nos. 66, 67. Defendants subsequently sought reconsideration of the Court’s order with respect to their argument that Plaintiff Geiger “failed to state a claim under the Due Process Clause of the Fourteenth Amendment because a constitutionally adequate post-deprivation remedy was available to him under Pennsylvania law and he failed to avail himself of that remedy to challenge the seizure, restraint, or retention of his vehicle.” Defs.’ Joint Mot. for Reconsideration at 2, ECF No. 73. The Court

2

At the time that Plaintiffs filed their first motion

for class certification, they had not yet filed their Second

Amended Complaint, which added Count Seven.

9

denied the motion for reconsideration on September 7, 2016. ECF No. 150.
The parties settled Counts One and Two in an agreement the Court approved on November 3, 2015. ECF No. 104. On August 1, 2016, Plaintiffs filed a motion seeking to (1) join four state court administrators as defendants for Counts Three, Four, and Six; (2) file a Second Amended Complaint adding a seventh claim and other new allegations; and (3) sever Count Five. ECF No. 139. The Court granted the motion on September 14, 2016. ECF No. 155.
On September 15, 2016, Plaintiffs filed the Second Amended Complaint, which (1) substituted current Mayor of Philadelphia James F. Kenney for former Mayor Michael A. Nutter; (2) substituted current Philadelphia Police Department Commissioner Richard Ross, Jr., for former Commissioner Charles H. Ramsey; (3) added the First Judicial District Defendants; and (4) added Count Seven. ECF No. 157. In response, the City Defendants filed a motion to dismiss Counts Four and Six of the Second Amended Complaint, ECF No. 158, the D.A. Defendants filed an answer, ECF No. 161, and the First Judicial District Defendants moved to dismiss all claims against them, ECF No. 173.
Plaintiffs filed the instant motion, which seeks to certify a Rule 23(b)(2) class solely with respect to Count Five,
10

on May 17, 2016.3 ECF No. 118. The City Defendants and the D.A. Defendants each filed a response, ECF No. 137 and ECF No. 138, and Plaintiffs filed a reply, ECF No. 141. On September 19, 2016, the City Defendants filed a motion to submit a sur-reply, which the Court will grant. ECF No. 159. The Court held a hearing and is now ready to rule on the motion.

IV. PROPOSED CLASS
Plaintiffs seek to certify the following class under
Rule 23(b)(2) with respect to their fifth claim for relief:
All persons who hold legal title to or otherwise have a legal interest in property against which a civil-forfeiture petition was filed by the Philadelphia District Attorney’s Office on or after August 11, 2012, or will in the future be filed, in the Court of Common Pleas of Philadelphia County.
Pls.’ Mem. Support Mot. Certify Rule 23(b)(2) Class Pls.’ Fifth
Claim for Relief at 8, ECF No. 118-1 [hereinafter “Pls.’ Mem.”].

V. LEGAL STANDARD A party seeking class certification must satisfy Rule
23(a) of the Federal Rules of Civil Procedure and the requirements of one of the subsections of Rule 23(b). Wal-Mart

3

Plaintiffs’ motion and the parties’ subsequent

briefing were filed prior to Plaintiffs’ filing of the Second

Amended Complaint. Accordingly, the motion and briefing refer

to the Amended Complaint. As the Second Amended Complaint is

now the operative pleading in this case, the Court will refer to

the Second Amended Complaint in this memorandum.

11

Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011); In re Prudential Ins. Co. Am. Sales Practice Litig., 148 F.3d 283, 309 (3d Cir. 1998). Under Rule 23(a), Plaintiffs must demonstrate that: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). With respect to Rule 23(b), Plaintiffs here seek to certify a class under Rule 23(b)(2), which is appropriate when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. (23)(b)(2).
“Rule 23 does not set forth a mere pleading standard,” but instead, “[a] party seeking class certification must affirmatively demonstrate [her] compliance with the Rule - that is, [she] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Dukes, 564 U.S. at 350. The Supreme Court has repeatedly “recognized . . . that ‘sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,’ and that certification is proper only
12

if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’” Id. at 350-51 (quoting Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160-61 (1982)).
The Supreme Court has also recognized that “[f]requently[,] th[is] ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped.’” Dukes, 564 U.S. at 351 (quoting Falcon, 457 U.S. at 160). That is, “class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Id. (quoting Falcon, 457 U.S. at 160).
VI. DISCUSSION A. Rule 23(a) The City and D.A. Defendants concede that Plaintiffs’
proposed class satisfies numerosity and that the proposed class counsel adequately represents the class. They challenge only commonality, typicality, and Plaintiffs’ ability to adequately represent the class. See D.A. Defs.’ Mem. Law. Opp. Pls.’ Mot. Class Certification (“D.A. Opp.”), ECF No. 138, at 7-12. Nonetheless, the Court must satisfy itself, through a “rigorous analysis,” that all of the prerequisites of Rule 23(a) are met. See Dukes, 564 U.S. at 350-51 (quoting Falcon, 457 U.S. at 160).
13

For the reasons discussed below, the Court finds that Plaintiffs have met their burden to demonstrate that their proposed class satisfies the Rule 23(a) requirements of numerosity, commonality, and adequacy of representation. However, the Court finds that Plaintiffs’ claims are not typical of the entire proposed class in one respect: Plaintiffs’ property was subject to civil forfeiture pursuant to the CSFA, specifically, and Plaintiffs seek to certify a class of all persons whose property was subject to civil forfeiture, regardless of the legal basis for the forfeiture.
1. Numerosity Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The Third Circuit has explained that “no minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the [numerosity] prong” has been met. Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001). The putative class consists of thousands of individuals who have a legal interest in property against which a civil forfeiture petition was filed. According to Assistant District Attorney J. Andrew Jenemann, the Chief of the Public
14

Nuisance Task Force Unit (“PNTF”), the unit responsible for filing civil forfeiture actions, PNTF has filed 20,590 civil forfeiture petitions in the Court of Common Pleas of Philadelphia County since August 11, 2012. See Decl. of Andrew Jenemann ¶ 4, ECF No. 137-1. As this number is far greater than forty, the Court finds that numerosity is satisfied.
2. Commonality Rule 23(a)(2) requires a showing of “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The commonality element requires that the named plaintiffs “share at least one question of fact or law with the grievances of the prospective class.” Rodriguez v. Nat’l City Bank, 726 F.3d 372, 382 (3d Cir. 2013) (quoting Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994)). To satisfy the commonality requirement, class claims “must depend upon a common contention . . . of such a nature that it is capable of classwide resolution - which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350. As the Third Circuit has explained, “[m]eeting this requirement is easy enough: ‘[W]e have acknowledged commonality to be present even when not all members of the plaintiff class suffered an actual injury, when class members did not have identical claims, and, most
15

dramatically, when some members' claims were arguably not even viable.’” In re NFL Players Concussion Injury Litig., 821 F.3d 410, 427 (3d Cir. 2016) (quoting In re Cmty. Bank Mortg. Lending Practices Litig., 795 F.3d 380, 397 (3d Cir. 2015)).
Plaintiffs’ action challenges Defendants’ civil forfeiture policies and practices. In Count Five, Plaintiffs challenge the City and D.A. Defendants’ policy and practice of retaining forfeited property, alleging that the policy and practice creates a conflict of interest that violates the Due Process Clause. See SAC ¶¶ 338-46. The legal and factual questions involved in determining whether or not there is a due process violation and Plaintiffs are entitled to relief include (1) how the proceeds of civil forfeiture actions are distributed; (2) whether the manner in which the proceeds are distributed creates a conflict of interest; (3) whether that conflict of interest, if it exists, deprives litigants in civil forfeiture proceedings of due process of law; and (4) whether an order enjoining the City and D.A. Defendants’ retention of forfeiture proceeds and declaring the City and D.A. Defendants’ practices unconstitutional would provide relief for the due process violation. See, e.g., Marshall v. Jerrico, Inc., 446 U.S. 238, 241 (1980) (reversing order granting summary judgment in case alleging that Department of Labor’s retention of funds
16

collected as civil penalties for unlawful employment of civil labor created an impermissible risk of bias).
These common questions are “capable of class-wide resolution” because the City and D.A. Defendants allegedly retain all of the property forfeited through civil forfeiture proceedings, and, under Plaintiffs’ proposed class definition, every putative class member has a legal interest in property against which a civil forfeiture petition was filed. See, e.g., Hardy v. District of Columbia, 283 F.R.D. 20, 24 (D.D.C. 2012) (finding Rule 23(a) satisfied where plaintiffs challenged the seizure of their property without adequate notice, despite individual differences in the circumstances of each seizure).
The City and D.A. Defendants’ sole argument that Plaintiffs cannot satisfy commonality is that certain members of the class, including Plaintiff Geiger, did not take full advantage of the procedures available to them and therefore do not have viable due process claims. See D.A. Opp. at 9-12. The D.A. Defendants rely on Alvin v. Suzuki, 227 F.3d 107 (3d Cir. 2000), which contains the unremarkable proposition that a plaintiff cannot skip procedures that “provide due process” and then complain that due process is unavailable. Id. at 116 (emphasis added). Where, as here, a plaintiff is claiming that the available procedures do not satisfy due process, the
17

plaintiff need not have fully availed himself of those “patently inadequate” processes in order to have a claim. Id.4
3. Typicality Rule 23(a)(3) requires that the class representatives’ claims be “typical” of the claims of the class. Fed. R. Civ. P. 23(a)(3). The typicality inquiry is “intended to assess whether the action can be efficiently maintained as a class and whether the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees’ interests will be fairly represented.” Baby Neal, 43 F.3d at 57. Where claims of the representative plaintiffs arise from the same alleged wrongful conduct on the part of the defendant, the typicality prong is satisfied. See In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 532 (3d Cir. 2004). “‘[E]ven relatively pronounced factual differences will generally not preclude a finding of typicality where there is a strong similarity of legal theories’ or where the claim arises from the same practice or course of conduct.” In re Prudential Ins. Co.,

4

The D.A. Defendants also argue that Mr. Geiger does

not have a valid claim because he failed to file a motion under

Pennsylvania Rule of Criminal Procedure 588, which, the D.A.

Defendants assert, provides constitutionally adequate due

process. This Court previously considered and rejected that

argument in its decision denying Defendants’ motion to dismiss,

see ECF No. 66 at 29-30, and its order denying Defendants’ joint

motion for reconsideration, see ECF No. 150.

18

148 F.3d at 311 (alteration in original) (quoting Baby Neal, 43 F.3d at 58).
The City and D.A. Defendants’ sole argument that Plaintiffs’ claims lack typicality is that Mr. Geiger skipped available processes. This does not defeat typicality, for the reasons stated above. However, the Court finds that Plaintiffs’ claims are materially different from the claims of a portion of the proposed class, which prevents Plaintiffs’ claims from being typical of the claims of that subgroup of putative class members.
Plaintiffs, like all other putative class members, have a legal interest in property against which a civil forfeiture petition was filed. However, unlike a portion of the proposed class, Plaintiffs’ property was subject to forfeiture under the CSFA – i.e., the forfeiture of their property had a statutory basis. Plaintiffs do not limit their proposed class to persons against whose property civil forfeiture proceedings were filed pursuant to the CSFA or on any other statutory basis. Instead, Plaintiffs seek to certify a class consisting of all persons against whose property civil forfeiture proceedings were filed, regardless of the legal basis for the forfeiture, including forfeiture based on principles of common law.5

5

Plaintiffs allege that in addition to filing

forfeiture petitions pursuant to the CSFA, the D.A.’s Office

19

Given that the legal basis for the forfeitures,
including the extent to which the forfeitures were authorized by
state statute, may be highly relevant to Plaintiffs’ claims, the
Court finds that Plaintiffs’ claims are not typical of the
claims of those persons whose property was subject to forfeiture
pursuant to a legal basis other than the CSFA. See Newton v.
Merrill Lynch, Pearce, Fenner & Smith, Inc., 259 F.3d 154, 183
(3d Cir. 2001) (“The typicality inquiry . . . . centers on
whether ‘the named plaintiffs’ individual circumstances are
markedly different or . . . the legal theory upon which the
claims are based differs from that upon which the claims of
other class members will perforce be based.’” (quoting Eisenberg
v. Gagnon, 766 F.2d 770, 786 (3d Cir. 1985)). Here, putative
class members whose property was subject to civil forfeiture
also brings forfeiture actions that are not authorized by statute. See SAC ¶ 40. At the time that Plaintiffs filed their Second Amended Complaint, it appears that Pennsylvania district attorneys’ offices had filed petitions for “common law” forfeiture of both (1) contraband per se, which is property that is “inherently illegal,” and (2) “derivative contraband” - that is, “property which in and of itself is legal, but ‘nonetheless constitutes the fruit of a criminal enterprise or is used to perpetuate an unlawful act.’” Commonwealth v. 2010 Buick Enclave, 99 A.3d 163, 165-66 & n.1 (Pa. Commw. Ct. 2014) (quoting Commonwealth v. One 2001 Toyota Camry, 894 A.2d 207, 210 (Pa. Commw. Ct. 2006)). On January 13, 2017, the Commonwealth Court of Pennsylvania held that common law forfeiture does not exist in Pennsylvania, overruling One 2001 Toyota Camry, 894 A.2d 207. See Commonwealth v. Irland, No. 448 C.D. 2015, 2017 WL 128643, at *15 (Pa. Commw. Ct. Jan. 13, 2017). Here, Plaintiffs seek to certify a class that would include persons whose property was subject to civil forfeiture on the basis of common law principles.
20

proceedings based on common law forfeiture may have additional arguments regarding the legality of those forfeiture proceedings that Plaintiffs, and other putative class members whose property was subject to forfeiture under the CSFA, do not have. Accordingly, the Court will remove from the class definition those persons whose property was subject to non-CSFA forfeiture. Plaintiffs’ claims are typical of the claims of the remainder of the proposed class – those persons whose property was subject to forfeiture pursuant to the CSFA – and therefore the Court finds that typicality is satisfied with respect to the narrower class definition proposed by the Court.
4. Adequacy of Representation Rule 23(a)(4) requires representative parties to “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). The Third Circuit applies a two-prong test to assess the adequacy of the proposed class representatives. First, the court must inquire into the “qualifications of the counsel to represent the class,” In re Prudential Ins. Co., 148 F.3d at 312 (quoting In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 800 (3d Cir. 1995)), and
21

second, it must assess whether there are “conflicts of interest between named parties and the class they seek to represent,” id. (quoting Amchem, 521 U.S. at 625). Class counsel must be “qualified, experienced, and generally able to conduct the proposed litigation.” Clarke v. Lane, 267 F.R.D. 180, 197 n.16 (E.D. Pa. 2010) (quoting Walter v. Palisades Collection, LLC, No. 06-0378, 2010 WL 308978, at *9 (E.D. Pa. Jan. 26, 2010)).
The Court finds that Plaintiffs’ proposed counsel, the Institute for Justice and local counsel David Rudovsky, are qualified to represent the putative class. As the Court found in its order granting final approval of the settlement of Counts One and Two, Plaintiffs’ counsel have represented that they have considerable experience litigating complex cases involving constitutional issues, the Institute for Justice has substantial knowledge of the applicable law given its previous experience in civil forfeiture cases, counsel performed extensive work to investigate potential claims and develop legal theories, and counsel will devote sufficient resources to vigorously litigate this case. See ECF No. 104 at 3 n.2; Pls.’ Mem. at 17-19. The City and D.A. Defendants do not challenge the adequacy of class counsel.
Regarding the adequacy of the class representatives, the Court finds that Plaintiffs’ interests are aligned with those of absent class members, given the Court’s narrower
22

definition of a class consisting of persons against whose property civil forfeiture proceedings were initiated pursuant to the CSFA. See supra at 19-21. Plaintiffs’ property was forfeited pursuant to the same statute as absent class members, and based on the same alleged policies and procedures challenged in Plaintiffs’ fifth claim for relief. The City and D.A. Defendants’ sole argument that Plaintiffs will not adequately represent the class is again that Mr. Geiger does not have a claim because he failed to follow available procedures, which is incorrect. See supra at 17-18.
B. Rule 23(b)(2) A party seeking certification under Rule 23(b)(2) must
establish that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(2) is “almost automatically satisfied in actions primarily seeking injunctive relief.” Baby Neal, 43 F.3d at 58. In the Third Circuit, a Rule 23(b)(2) class must also be “cohesive” - that is, there must not be “disparate factual circumstances” that render Rule 23(b)(2) certification inappropriate. Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 (3d
23

Cir. 1998) (quoting Geraghty v. United States Parole Comm’n, 719 F.2d 1199, 1206 (3d Cir. 1983)).
Plaintiff seek three forms of relief relating to their claims in Count Five: (1) an entry of judgment declaring the City and D.A. Defendants’ policy and practice of retaining all forfeited property and its proceeds unconstitutional under the Due Process Clause of the Fourteenth Amendment, SAC at 68; (2) the entry of preliminary and permanent injunctions prohibiting the City and D.A. Defendants from engaging in that unconstitutional policy and practice, id. at 69; and (3) an entry of judgment requiring the City and D.A. Defendants to dismiss all civil forfeiture proceedings against Plaintiffs and class members, provide “restitution in the form of return of all property seized from the Named Plaintiffs and class members,” and remove all restraints imposed against Plaintiffs’ and class members’ real property as a consequence of the forfeiture petition, id. at 70.
The City and D.A. Defendants do not object to the certification of a class with respect to the first two forms of relief. Where the parties disagree, however, is whether or not class certification is appropriate with respect to Plaintiffs’ request for “restitution.” Both sets of parties urge the Court to separately consider Plaintiffs’ restitution claim: (1) Plaintiffs request that, should the Court decline to certify
24

Plaintiffs’ restitution claim, the Court alternatively certify a class as to Count Five with respect to liability only, deferring the question of restitution until a later date, see Pls.’ Mem. at 23; and (2) the City and D.A. Defendants request that, should the Court decide to certify Plaintiffs’ claims for declaratory and injunctive relief with respect to Count Five, the Court refuse to certify Plaintiffs’ restitution claim, see City Opp. at 12-13; D.A. Opp. at 26-27.
The Third Circuit explained in In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305 (3d Cir. 2008), that a district court “possesses broad discretion to control proceedings and frame issues for consideration under Rule 23.” Id. at 310 (citing Amchem, 521 U.S. at 630). As part of that discretion, Rule 23(c)(4) provides that, “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4). This provision permits a district court to grant partial certification of an action, including certification of specific claims, elements, or issues. Gates v. Rohm & Haas Co., 655 F.3d 255, 272-73 (3d Cir. 2011) (discussing considerations when certifying particular claims or issues under Rule 23(c)(4)). Accordingly, the Court may certify a class with respect to only certain portions of Plaintiffs’ claims. With that framework in mind, the Court will separately address the suitability of class
25

treatment under Rule 23(b)(2) for each of Plaintiff’s three requests for relief in Count Five.
For the reasons discussed below, the Court agrees that Plaintiffs’ requests for (1) a declaration that the City and D.A. Defendants’ policies and procedures are unconstitutional and (2) an injunction enjoining those practices and procedures are suitable for class certification under Rule 23(b)(2). However, the Court finds that Plaintiffs’ request for a judgment ordering the return of property should not be certified under Rule 23(b)(2).
1. Requests for Declaratory Relief and an Injunction Enjoining the Allegedly Unconstitutional Policy and Practice
The first two forms of relief Plaintiffs request in Count Five are (1) a declaration that the City and D.A. Defendants’ policy and practice of retaining forfeited property violates due process; and (2) an injunction enjoining that policy and practice. See SAC at 68-69. The City and D.A. Defendants do not challenge the certification of Count Five with respect to these two requests for relief; they do not dispute that the policies and procedures used in civil forfeiture proceedings “apply generally to the class,” Fed. R. Civ. P. 23(b)(2), nor do they argue that a claim seeking a declaration
26

that those policies and procedures are unconstitutional is not suitable for class treatment under Rule 23(b)(2).
Plaintiffs’ requests for a declaration that certain governmental policies and practices are unconstitutional and an injunction enjoining those policies and practices are classic examples of the types of claims that should be certified under Rule 23(b)(2). See Baby Neal, 43 F.3d at 58-59 (noting that “[i]t is the (b)(2) class which serves most frequently as the vehicle for civil rights actions and other institutional reform cases that receive class action treatment”); Dukes, 564 U.S. at 361 (reviewing the history of Rule 23(b)(2) and observing that civil rights cases are “‘prime examples’ of what (b)(2) is meant to capture” (quoting Amchem, 521 U.S. at 614)).
Plaintiffs claim that the D.A. and City Defendants retain proceeds from all civil forfeiture proceedings the D.A. Defendants initiate, which would impact the civil forfeiture proceedings of all of the putative class members. Plaintiffs therefore allege that the City and D.A. Defendants have “act[ed] on grounds that apply generally to the class.” Fed. R. Civ. P. 23(b)(2). A declaration that the City and D.A. Defendants’ policy and practice is unconstitutional and an injunction enjoining that policy and practice would benefit the entire putative class equally, and thus would be “appropriate respecting the class as a whole.” Id. There are also no
27

“disparate factual circumstances” relating to the constitutionality of the City and D.A. Defendants’ retention of civil forfeiture profits, and cohesiveness is therefore satisfied. Barnes, 161 F.3d at 143 (quoting Geraghty, 719 F.2d at 1206).
Accordingly, class certification of Plaintiffs’ request for declaratory and injunctive relief in Count Five is appropriate under Rule 23(b)(2), and the Court will grant Plaintiffs’ motion for class certification with respect to these two requests for relief.
2. Request for an Entry of Judgment Ordering the Return of Property
The bulk of the parties’ arguments regarding class certification of Count Five relate to Plaintiff’s third request for relief: an injunction ordering the return of forfeited property. See SAC at 70 (requesting “an entry of judgment requiring Defendants to . . . return . . . all property seized from the Named Plaintiffs and class members”).
The City and D.A. Defendants argue that this particular request for relief cannot be certified under Rule 23(b)(2) because the rule does not permit certification of claims for “restitution.” See City Opp. at 10-11; D.A. Opp. at 23-25. The City and D.A. Defendants further argue that because the majority of the property forfeited in Philadelphia is cash,
28

and the amount of forfeited cash will differ for each class member, Plaintiffs’ request for restitution amounts to an claim for “individualized monetary damages,” which is prohibited in a Rule 23(b)(2) class action under the Supreme Court’s holding in Dukes. The City and D.A. Defendants also argue that these damages are not “incidental” to Plaintiffs’ request for injunctive and declaratory relief. See City Opp. at 4-5; D.A. Opp. at 23-25. Finally, the City and D.A. Defendants argue that the proposed class cannot be certified under Rule 23(b)(2) because it is not sufficiently cohesive, as required by the Third Circuit in Barnes v. American Tobacco Co., 161 F.3d 127 (3d Cir. 1998). See City Opp. at 11-12; D.A. Opp. at 25-26.
In response, Plaintiffs contend that “incidental restitution, even when it consists of returning monies, is appropriate under Rule 23(b)(2),” and that their request for the return of property falls into that category. See Pls.’ Reply Mem. Law Support Mot. Class Certification (“Pls.’ Reply”) at 1114, ECF No. 141. Plaintiffs further argue that this incidental restitution in no way conflicts with Dukes because the “relief here requires no calculation or case-by-case analysis - simply the mechanistic return of property,” id. at 15, and all of the City and D.A. Defendants’ asserted “individualized” defenses are either waived or invalid, see id. at 16-27.
29

For the reasons discussed below, the Court does not agree with the City and D.A. Defendants that restitution claims may never be certified under Rule 23(b)(2). However, the Court finds that the Supreme Court’s decision in Dukes, 564 U.S. at 360-61, prevents the certification of Plaintiffs’ request for an injunction ordering the return of property, because (1) the relief to which the putative class members are entitled includes individualized monetary damages, and (2) the restitution sought is not incidental to Plaintiffs’ requests for injunctive and declaratory relief. As a result, the Court need not address the City and D.A. Defendants’ separate argument that certification of Plaintiffs’ restitution claim is not permissible because the class is not sufficiently cohesive.
a. Restitution Claims Under Rule 23(b)(2) The City and D.A. Defendants argue that restitution claims of any kind cannot be certified under Rule 23(b)(2), citing In re School Asbestos Litigation, 789 F.2d 996, 1008 (3d Cir. 1986). See City Opp. at 10-11; D.A. Opp. at 24-25. The D.A. Defendants further argue that Rule 23(b)(2) does not encompass restitution claims because (1) Rule 23(b)(2) permits only “final injunctive relief or corresponding declaratory relief,” and does not specifically list “restitution” as an available remedy, and (2) restitution requires ascertainability
30

so it properly fits under Rule 23(b)(3), which also requires ascertainability. See D.A. Opp. at 13-14. The City and D.A. Defendants are incorrect.
Certification of a class action under Rule 23(b)(2) is warranted only where “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Neither the Supreme Court nor the Third Circuit has addressed whether an action seeking restitution is the sort of injunctive relief properly sought under Rule 23(b)(2). However, district courts in other circuits that have addressed the question have classified an order requiring the return of property as the type of injunctive relief that is permissible under Rule 23(b)(2).6
Although the Supreme Court has not addressed the question of restitution, it has made clear that where plaintiffs solely seek monetary damages, their claims may be certified only

6

See, e.g., Gates v. Towery, No. 04-C-2155, 2004 WL

2583905, at *8 (N.D. Ill. Nov. 10, 2004), aff’d, 430 F.3d 429

(7th Cir. 2005) (certifying Rule 23(b)(2) class where plaintiffs

sought “injunctive relief requiring Defendants to return

Plaintiffs’ property” in addition to compensatory damages

consisting of reasonable interest); Gete v. Immigration &

Naturalization Serv., No. C94-881Z, 1999 U.S. Dist. LEXIS 11806,

at *5-6 (W.D. Wash. July 22, 1999) (certifying Rule 23(b)(2)

class where plaintiffs challenged the constitutionality of

immigration proceedings and sought “a final order declaring the

administrative proceedings void and requiring the INS to either

reopen the proceedings or return the plaintiffs’ property or

money” in addition to separately requesting money damages).

31

under Rule 23(b)(3), not Rule 23(b)(2). See Dukes, 564 U.S. at 364. On the basis of the prohibition against certifying class actions under Rule 23(b)(2) for claims solely involving monetary damages, the Third Circuit has previously rejected attempts by putative class action plaintiffs to shoehorn damages claims into Rule 23(b)(2) by asking for an injunction instead of damages. In In re School Asbestos Litigation, the Third Circuit affirmed the district court’s denial of a Rule 23(b)(2) class where plaintiffs sought “mandatory injunctive relief in the form of certain remedial action and restitution for expenditures already incurred to ameliorate asbestos hazards.” 789 F.2d at 1008. The district court concluded, and the Third Circuit agreed, that “despite the plaintiffs’ ingenuity the claims in this suit were essentially for damages.” Id. The class therefore could not be certified under Rule 23(b)(2), because the rule does not permit certification of “an action for money damages.” Id.
Following In re School Asbestos Litigation, other courts in this Circuit have denied certification of a Rule 23(b)(2) class where plaintiffs’ request for restitution was actually a request for money damages and plaintiffs sought no other declaratory or injunctive relief. See, e.g., Smith v. John Hancock Ins. Co., No. 06-3876, 2008 WL 4145709, at *3 (E.D. Pa. Sept. 3, 2008) (refusing to certify a Rule 23(b)(2) class for restitution where it was clear that plaintiff was “actually
32

seeking money damages and request[ed] restitution as an alternate means of obtaining the same”). The D.A. Defendants point to In re School Asbestos Litigation and Smith in support of their argument that restitution claims cannot be certified under Rule 23(b)(2). See D.A. Opp. at 24. However, these cases establish only that restitution claims cannot be certified under Rule 23(b)(2) where the request for an injunction ordering restitution is merely a disguise for seeking monetary damages as the sole relief. These cases do not, as the D.A. Defendants claim, provide support for a blanket prohibition on the certification of restitution claims under Rule 23(b)(2).
The D.A. Defendants’ additional arguments that restitution claims can never be certified under Rule 23(b)(2) also fail. The D.A. Defendants argue that restitution is not permissible under Rule 23(b)(2) because restitution cannot be implemented unless class members are ascertainable, and Rule 23(b)(2) does not require ascertainability. See D.A. Opp. at 13-14. This argument does not follow logic. The exclusion of Rule 23(b)(3)’s ascertainability requirement from Rule 23(b)(2) does not mean that actions satisfying the ascertainability requirement cannot be certified under Rule 23(b)(2).7

7

To the extent the D.A. Defendants intend to argue that

the ascertainability requirement is omitted from Rule 23(b)(2)

because ascertainability is not necessary for the types of

relief that are proper under Rule 23(b)(2), and therefore that

33

The D.A. Defendants also claim that restitution is prohibited under Rule 23(b)(2) because the rule does not specifically list “restitution” as an available remedy, and instead refers only to “injunctive relief or corresponding declaratory relief.” See D.A. Opp. at 12. But an injunction ordering restitution is itself a form of injunctive relief,8 and the sole case the D.A. Defendants cite in support of their argument does not hold otherwise. In Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311 (4th Cir. 2006), the Fourth Circuit affirmed the district court’s refusal to certify a Rule 23(b)(2)

any type of relief requiring ascertainability is not properly certified under Rule 23(b)(2), the Supreme Court has expressly declined to prohibit certification monetary damages claims – which would clearly require ascertainability - in Rule 23(b)(2) actions. See Dukes, 564 U.S. at 366.

8

Indeed, the idea that restitution is impermissible

because it is not a form of injunctive relief conflicts with the

Supreme Court’s previous characterization of restitution. In

Great-West Life & Annuity Ins. Co. v. Knudson, the Supreme Court

explained that restitution may be either a legal or equitable

remedy, and “whether it is legal or equitable depends on ‘the

basis for [the plaintiff’s] claim’ and the nature of the

underlying remedies sought.” 534 U.S. 204, 213 (2002)

(alteration in original) (quoting Reich v. Cont’l Cas. Co., 33

F.3d 754, 756 (7th Cir. 1994)). Restitution is equitable, as

opposed to legal, when the action “seek[s] not to impose

personal liability on the defendant, but to restore to the

plaintiff particular funds or property in the defendant’s

possession.” Id. at 214. Likewise, suits seeking “compensation

for loss resulting from the defendant’s breach of legal duty”

are suits for “money damages,” id. at 210 (quoting Bowen v.

Massachusetts, 487 U.S. 879, 918-19 (1998) (Scalia, J.,

dissenting)), the “classic form of legal relief,” whether such

relief is sought by judgment, injunction, or declaration, id.

(quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 255 (1993)).

34

class where the plaintiffs sought (1) an injunction prohibiting the defendant insurance company from collecting any future premiums on its allegedly discriminatory policies, (2) restitution in the form of money equivalent to the difference in premium payments made by African-American and white policyholders, and (3) punitive damages and legal fees. Id. at 316, 330-32. The court found that the plaintiffs’ sole injunctive relief had already been granted, leaving only the plaintiffs’ claims for monetary restitution, punitive damages, and legal fees. Id. at 330-32. Applying the pre-Dukes standard that monetary damages are permitted under Rule 23(b)(2) so long as they do not predominate over a request for injunctive or declaratory relief – a standard that is no longer good law - the court concluded that Rule 23(b)(2) certification was not appropriate because the plaintiffs’ only requested relief was monetary damages. Id. Like the other cases the D.A. Defendants cite, Thorn supports only the well-established principle that plaintiffs cannot obtain Rule 23(b)(2) class certification when they are solely seeking monetary damages.
Therefore, as Plaintiffs correctly point out, the City and D.A. Defendants have not identified any blanket prohibition against seeking restitution in a Rule 23(b)(2) action. The cases the City and D.A. Defendants cite establish only that restitution claims may not be certified under Rule 23(b)(2) if
35

the restitution sought is merely another means of seeking monetary damages as the sole relief.
That rule does not bar Plaintiffs’ restitution claim here. The “restitution” Plaintiffs seek is the return of property, some of which is personal property, including cash, but some of which is also real property. While the cash Plaintiffs seek could be considered a form of monetary damages, it is clearly not the sole relief Plaintiffs seek, as they also seek the return of other forms of property, as well as other declaratory and injunctive relief. Therefore, the Court will not deny certification of Plaintiffs’ restitution claim under Rule 23(b)(2) on that basis.
b. Individualized Monetary Damages The City and D.A. Defendants also argue that Plaintiffs’ restitution claim cannot be certified under Rule 23(b)(2) pursuant to Dukes, 564 U.S. at 360, because the restitution Plaintiffs seek constitutes “individualized monetary damages.” See City Opp. at 4-5, D.A. Opp. at 23-24. In Dukes, the Ninth Circuit affirmed the district court’s certification of a Rule 23(b)(2) class of approximately one and a half million current and former female employees of Wal-Mart with respect to the plaintiffs’ claim that Wal-Mart engaged in gender discrimination, in violation of Title VII of
36

the Civil Rights Act of 1964, by denying female employees equal pay and/or promotions. Id. at 342. Plaintiffs sought injunctive and declaratory relief, punitive damages, and back pay. Id. The Supreme Court reversed the Ninth Circuit order affirming the district court’s certification of the class, finding that the plaintiffs’ claims for back pay could not be certified under Rule 23(b)(2) because that rule “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.” Id. at 360-61.
The Supreme Court explained that “claims for individualized relief” do not satisfy Rule 23(b)(2) because “[t]he key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted — the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” Id. at 360 (emphasis in original) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). Just as Rule 23(b)(2) “does not authorize certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant,” it similarly does not authorize class certification when each class member would be entitled to an individualized award of monetary damages. Id. at 360 (emphasis
37

in original). Instead, the Court explained, “individualized monetary claims belong in Rule 23(b)(3).” Id. at 362.
Relying on Dukes, the City and D.A. Defendants claim that Plaintiffs’ restitution claim cannot be certified because it requires the Court to award “individualized monetary damages.” First, the City and D.A. Defendants argue that the monetary damages Plaintiffs seek are individualized because each putative class member forfeited a different amount of cash or property, suffered varying amounts of emotional and mental harm, and spent varying amounts on legal services. See City Opp. at 5; D.A. Opp. at 23-24. Second, the City and D.A. Defendants argue that they have defenses to restitution for certain categories of putative class members and individual putative class members that they are entitled to litigate on an individual basis. See City Opp. at 5-10; D.A. Opp. at 14-21.
In response, Plaintiffs argue that the injunction they seek is not “individualized” because the “relief here requires no calculation or case-by-case analysis - simply the mechanistic return of property.” Pls.’ Reply at 15. Plaintiffs explain that the Court could issue one single classwide order requiring the City and D.A. Defendants to return all property that was seized from the putative class members, that is, property seized in civil forfeiture proceedings initiated in the Court of Common Pleas of Philadelphia County after August 11, 2012. See Pls.’
38

Mem. at 21-22. In this way, Plaintiffs argue, their request for restitution cannot be compared to a case in which “each individual class member would be entitled to a different injunction or declaratory judgment against the defendant,” as the Supreme Court characterized an individualized award. See id. at 22 (quoting Dukes, 564 U.S. at 360-61). Plaintiffs further argue that the Court’s ability to satisfy their restitution claim through one single injunction also distinguishes the instant action from the post-Dukes cases cited by the City and D.A. Defendants in which courts denied Rule 23(b)(2) class certification.9
Plaintiffs may be correct that the Court could award the relief that Plaintiffs seek through the issuance of one single injunction, and therefore that their request for relief is not “individualized” in that manner. However, the question is not whether the relief Plaintiffs are seeking is

9

See Boyle v. Int’l Bhd. of Teamsters Local 863 Welfare

Fund, 579 F. App’x 72, 76 (3d Cir. 2014) (affirming denial of

Rule 23(b)(2) class certification where plaintiffs’ requested

monetary relief included “repayment of health insurance,

reimbursement of medical expenses, liquidated damages,

compensation for unjust enrichment, interest, reasonable

attorneys’ fees, and costs of suit” and would require a separate

evaluation for each class member of the specific harms caused by

the defendants); Martin v. Ford Motor Co., 292 F.R.D. 252, 286

at n.36 (E.D. Pa. 2013) (denying Rule 23(b)(2) class

certification in an automobile products liability action where

class members resided in different states with different recall

rules and experienced different problems with their vehicles,

because a single injunction could not provide relief to each

member of the class).

39

individualized, but whether the relief putative class members are entitled to is individualized. See Dukes, 564 U.S. at 36061 (holding that Rule 23(b)(2) “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages” (emphasis added)).
As the City Defendants note, plaintiffs in actions brought pursuant to 42 U.S.C. § 1983 may seek recovery for emotional and mental harm, legal fees, and other compensatory and punitive damages. See City Opp. at 5; Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 312-13 (1986) (holding that plaintiffs in a § 1983 action may be awarded compensatory damages for their injuries, as well as punitive damages). Plaintiffs do not dispute that the calculation of these types of additional damages would require individualized inquiries. Instead, Plaintiffs argue that they are not seeking those types of damages here, so the fact that such damages may require individualized inquiries is not relevant to the question of whether or not Plaintiffs’ restitution claim itself is individualized. See Pls.’ Reply at 12. However, Plaintiffs miss the point. The potential that individual class members may have valid claims for damages that Plaintiffs are not pursuing in this action implicates the precise due process concerns identified by the Supreme Court in Dukes, and it is therefore
40

highly relevant to this Court’s evaluation of whether or not it should certify Plaintiffs’ restitution claim.
The Supreme Court explained in Dukes that where monetary relief is sought in a class action, particular class members may be collaterally estopped from individually seeking compensatory damages that they might otherwise be entitled to receive. See 564 U.S. at 364. A class judgment only binds class members as to matters actually litigated, see Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984), and some federal courts have therefore concluded that a class action seeking only injunctive relief does not bar later claims for monetary damages.10 Where, by contrast, plaintiffs in a class action seek a form of monetary damages, later claims for additional or different damages could be precluded.
District courts in this circuit have acknowledged the possibility of preclusion where named plaintiffs seek certification of only certain types of damages claims and absent class members may have additional, different damages claims.

10

See, e.g., Fortner v. Thomas, 983 F.2d 1024, 1031

(11th Cir. 1993) (explaining that “a prisoner’s claim for

monetary damages or other particularized relief is not barred if

the class representative [in another class action] sought only

declaratory and injunctive relief”); Morrow v. Washington, 277

F.R.D. 172, 204 (E.D. Tex. 2011) (finding that certification of

declaratory and injunctive relief regarding plaintiffs’ claims

that traffic stops were unconstitutional would not foreclose

individual lawsuits for damages based on the individual

circumstances of a particular stop).

41

For example, in Gaston v. Exelon Corp., 247 F.R.D. 75 (E.D. Pa. 2007), the court noted that it was “likely” that were plaintiffs’ equitable claims to be litigated on a class basis, “claim preclusion would bar members of the class from later seeking compensatory and punitive damages.” Id. at 88 n.22. In Gates v. Rohm & Haas Co., 265 F.R.D. 208 (E.D. Pa. 2010), aff’d, 655 F.3d 255 (3d Cir. 2011), the court identified a potential conflict where the named plaintiffs brought only medical monitoring and property loss claims and absent class members may have had additional personal injury claims that could have been precluded in later actions. See id. at 217-18. The court ultimately determined that the risk of preclusion was not fatal to certification because plaintiffs sought certification under Rule 23(b)(3), which would provide class members with notice and the opportunity to opt out of the class. See id. at 218.
The preclusion issue identified in Gaston and Gates is a concern here, as the restitution Plaintiffs seek could be considered a form of compensatory damages for the purposes of preclusion. And, in contrast to Gates, Plaintiffs here seek certification under Rule 23(b)(2), not Rule 23(b)(3). Unlike in a Rule 23(b)(3) class action, absent class members in a Rule 23(b)(2) class action ordinarily receive no notice of their membership in the class and no right to opt out of the
42

litigation.11 As the Supreme Court explained in Dukes, these protections are not included in a Rule 23(b)(2) class action because they are presumed “unnecessary” where a class “seeks an indivisible injunction benefiting all its members at once.” 564 U.S. at 362-63. Where a Rule 23(b)(2) class action includes claims for monetary relief, by contrast, it creates the possibility that “individual class members’ compensatory-damages claims would be precluded by litigation they had no power to hold themselves apart from.” Id. at 364 (emphasis in original); see also Rice v. City of Phila., 66 F.R.D. 17, 21 (E.D. Pa. 1974) (Rule 23(b)(2) presents a risk that “individuals who may never learn of the pendency of [the] case might encounter

11

While Rule 23(c)(2) explicitly provides that a

district court “may direct appropriate notice to the class” for

any class certified under Rule 23(b)(2), see Fed. R. Civ. P.

23(c)(2)(A), the rules do not establish a basis for the

provision of opt-out rights in a Rule 23(b)(2) class. The

Second and Fifth Circuits have held that a district court has

the discretion under Rule 23 to grant opt-out rights in a Rule

23(b)(2) class action. See McReynolds v. Richards-Cantave, 588

F.3d 790, 800 (2d Cir. 2009) (“[T]he language of Rule 23 is

sufficiently flexible to afford district courts discretion to

grant opt-out rights in (b)(1) and (b)(2) class actions.”

(quoting Eubanks v. Billington, 110 F.3d 87, 94 (D.C. Cir.

1990))); In re Monumental Life Ins. Co., 365 F.3d 408, 416 (5th

Cir. 2004) (noting that while opt-out rights are not required, a

district court has the discretion to order notice and opt-out

rights when certifying a Rule 23(b)(2) class). However, the

Third Circuit has not addressed the issue, and, in any case,

Plaintiffs have not requested opt-out rights as an alternative

to the denial of class certification, nor have they provided the

Court with sufficient information to determine that class

members are ascertainable, such that the provision of opt-out

rights would be feasible.

43

difficulty in pursuing meritorious individual litigation in the future, on the basis of lis pendens, res judicata, or collateral estoppel”). Accordingly, as the D.A. Defendants point out, “[w]ith such claims, class members must be permitted ‘to decide for themselves whether to tie their fates to the class representatives’ or go it alone – a choice that Rule 23(b)(2) does not ensure that they have.’” D.A. Opp. at 23 (quoting Dukes, 564 U.S. at 364 (emphasis in original)).
Plaintiffs’ dogged insistence that their restitution claim should be certified because they are not seeking “individualized” compensatory and punitive damages on behalf of putative class members highlights a related concern identified by the Supreme Court: permitting monetary damages in a Rule 23(b)(2) action “creates perverse incentives for class representatives to place at risk potentially valid claims for monetary relief” in order to obtain certification. Dukes, 564 U.S. at 364. Perhaps Plaintiffs are not pursuing other types of damages in this action precisely because it would make obtaining certification under Rule 23(b)(2) more difficult. Class representatives should not be permitted to preference one form of available relief over another that might be more beneficial to certain putative class members - in this case, choosing restitution over other forms of compensatory damages – in an action in which individual class members are not notified about
44

the action and are not given the ability to opt-out. Indeed, the very reason that notice and opt-out rights are not required in a Rule 23(b)(2) class action – as the Supreme Court explained – is that the relief is beneficial to the class as a whole.
Here, restitution may be adequate relief for some class members, but it may be inadequate for others. For example, the City and D.A. Defendants state that large portions of the forfeited property at issue has been sold or liquidated.12 For putative class members whose property has been sold, liquidated, or lost, a simple order awarding that property returned may be insufficient to compensate for their losses. Even if the injunction were to order the City and D.A. Defendants to pay the value of the property in the case of lost or sold property, that value may be difficult to determine and, accordingly, whatever metric is used to compute the value may not adequately compensate all class members for their losses. This is especially true in the case of the putative class members who forfeited their real property. Further, for those putative class members – like Plaintiffs Sourovelis, Hernandez, and Geiger – whose property has already been returned, restitution alone would not provide any compensation for the losses they suffered as a result of the deprivation of their

12

The CSFA specifically includes a procedure for the

sale or liquidation of forfeited property.

45

property for weeks or months, such as the need to find alternate living arrangements. See SAC ¶¶ 181, 240-46, 267-71. Thus, restitution would not necessarily benefit “the class as a whole.” See Fed. R. Civ. P. 23(b)(2).
As putative class members are entitled to “individualized monetary damages,” certification of Plaintiffs’ restitution claim under Rule 23(b)(2) is not appropriate under Dukes.13 In accordance with the reasoning expressed by the Supreme Court in Dukes, in an action where class members will be bound by the outcome and will not be aware of the action or have the ability to opt out, the Court will not force the entire putative class to accept one particular form of damages and be precluded from receiving other forms of damages to which they may be entitled. As a result, the Court will not certify a class under Rule 23(b)(2) with respect to Plaintiffs’ request for restitution on their fifth claim for relief.

13

Plaintiffs also argue that even if the restitution

they seek constitutes “monetary damages,” their restitution

claim may still be certified under Rule 23(b)(2) because it is

incidental to the injunctive and declaratory relief they seek.

See Pls.’ Mem. at 22-23. Plaintiffs are correct that Dukes

expressly left open whether certain “incidental” claims for

monetary relief may be permissible under Rule 23(b)(2). See 564

U.S. at 366. However, the Supreme Court emphasized that such

“incidental” damages, if available, must still be “consistent

with the interpretation of Rule 23(b)(2) we have announced” and

“comply with the Due Process Clause.” Id. As discussed above,

Plaintiffs’ restitution claim is not consistent with the Supreme

Court’s interpretation of Rule 23(b)(2) in Dukes. Therefore,

the Court need not reach Plaintiffs’ argument that restitution

is incidental to the other forms of relief they seek.

46

VII. CONCLUSION For the reasons discussed above, the Court will grant
in part and deny in part Plaintiffs’ motion for class certification. The Court will certify a class on Count Five of Plaintiff’s Second Amended Complaint pursuant to Rule 23(b)(2) with respect to Plaintiff’s requests for (1) a declaration that the City and D.A. Defendants’ policy and practice of retaining forfeited property and its proceeds violates the Due Process Clause; and (2) an injunction enjoining that policy and practice. However, the Court will not certify a Rule 23(b)(2) class with respect to Plaintiff’s request for the entry of judgment requiring the return of property. In addition, the Court will modify the class definition to limit the class to those persons against whose property civil forfeiture proceedings were initiated pursuant to the CSFA.
An appropriate order follows.14

14

Nothing in this order is intended to determine or

decide whether this class, or any other putative class, may be

certified in this action pursuant to Rule 23(b)(3).

47

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOS SOUROVELIS, et al., Plaintiffs,
v. CITY OF PHILADELPHIA, et al.,
Defendants.

: CIVIL ACTION : No. 14-4687 : : : : : : :

O R D E R

AND NOW, this 23rd day of February, 2017, upon

consideration of Plaintiffs’ Motion to Certify a Rule 23(b)(2)

Class on Plaintiffs’ Fifth Claim for Relief (ECF No. 118), and

following a hearing held on the record with counsel for the

parties, it is hereby ORDERED that Plaintiffs’ motion is GRANTED

in part and DENIED in part as follows:

1. Plaintiffs’ motion is GRANTED to the extent that

it seeks to certify a Rule 23(b)(2) class on Count Five of

Plaintiffs’ Second Amended Complaint (ECF No. 157) with respect

to Plaintiffs’ requests for (1) a declaration that the City and

D.A. Defendants’ policy and practice of retaining forfeited

property and its proceeds is unconstitutional, and (2) an

injunction enjoining that policy and practice.

2. Plaintiffs’ motion is DENIED to the extent that

it seeks to certify a Rule 23(b)(2) class on Count Five with

respect to Plaintiffs’ request for an entry of judgment
requiring the return of property.
3. The class shall consist of the following
individuals:
All persons who hold legal title to or otherwise have a legal interest in property against which a civil-forfeiture petition was filed pursuant to the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. Ann. §§ 6801 and 6802, by the Philadelphia District Attorney’s Office on or after August 11, 2012, or will in the future be filed, in the Court of Common Pleas of Philadelphia County.
4. Plaintiffs Christos Sourovelis, Doila Welch,
Norys Hernandez, and Nassir Geiger are designated as class
representatives.
5. The Institute for Justice and David Rudovsky,
Esquire, are designated as class counsel.
6. The City Defendants’ Motion to Submit a Surreply
Brief (ECF No. 159) is GRANTED.
AND IT IS SO ORDERED.
/s/ Eduardo C. Robreno EDUARDO C. ROBRENO, J.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOS SOUROVELIS, et al., Plaintiffs,
v. CITY OF PHILADELPHIA, et al.,
Defendants.

: CIVIL ACTION : NO. 14-4687 : : : : : : :

M E M O R A N D U M EDUARDO C. ROBRENO, J.

March 30, 2017

Table of Contents I. INTRODUCTION............................................ 2 II. FACTUAL BACKGROUND...................................... 4
A. Civil Forfeiture Procedures Prior to October 2015.. 7 B. Defendants’ Interim Measures....................... 9 C. Civil Forfeiture Procedures Adopted in 2016....... 10 III. PROCEDURAL HISTORY..................................... 11 IV. LEGAL STANDARDS........................................ 14 A. Rule 12(b)(1)..................................... 14 B. Rule 12(b)(6)..................................... 16 V. THE FJD DEFENDANTS’ MOTION TO DISMISS ................. 17 A. Rule 12(b)(1)..................................... 18
1. Standing, Mootness, and Ripeness............. 19 a. Challenge to Prior Procedures........... 22

b. Challenge to Current Procedures......... 27 2. Federalism and Comity........................ 30 B. Rule 12(b)(6)..................................... 32 1. Count Three.................................. 34 2. Count Seven.................................. 38
a. Adjudication............................ 38 b. Use of Criminal Procedures.............. 40 c. Adequate Notice......................... 41 3. Proper Defendants............................ 42 VI. THE CITY DEFENDANTS’ MOTION TO DISMISS................. 43 VII. CONCLUSION............................................. 47
I. INTRODUCTION Plaintiffs filed this putative class action on August
11, 2014, challenging Philadelphia’s civil forfeiture policies and practices. Plaintiffs originally filed six claims under 42 U.S.C. § 1983 against the City of Philadelphia, the Mayor, and the Police Commissioner (the “City Defendants”); and the Philadelphia District Attorney and D.A.’s Office (the “D.A. Defendants”). After all of Plaintiffs’ claims survived a motion to dismiss and the parties settled Counts One and Two, Plaintiffs filed a Second Amended Complaint, adding four state court administrators as defendants and adding a seventh claim. The new defendants - the Honorable Sheila A. Woods-Skipper, in her official capacity as Chair of the Administrative Governing
2

Board of the First Judicial District of Pennsylvania (the “FJD”); the Honorable Jacqueline F. Allen, in her official capacity as a member of the Administrative Governing Board of the FJD; Joseph H. Evers, in his official capacity as Court Administrator of the FJD; and Charles A. Mapp, in his official capacity as Chief Deputy Court Administrator of the FJD (the “FJD Defendants”) – have moved to dismiss all of the claims against them (Counts Three, Four, Six, and Seven). The City Defendants have moved to dismiss Counts Four and Six against them. Plaintiffs oppose both motions. The Court held a hearing to address the FJD Defendants’ motion.1 As the City Defendants had previously moved to dismiss the same claims against them that are the subject of their instant motion, the Court determined to consider the City’s motion on submission without a hearing.
For the reasons that follow, the Court will deny both the FJD Defendants’ motion to dismiss and the City Defendants’ motion to dismiss.

1

At the hearing, the Court also considered the parties’

joint report, pursuant to Federal Rule of Civil Procedure 26(f),

as to Count Five. The Court subsequently entered a scheduling

order as to Count Five. See ECF No. 195.

3

II. FACTUAL BACKGROUND In their Second Amended Complaint, Plaintiffs allege
the following facts, which are presumed to be true for the purposes of the instant motions to dismiss.
Civil forfeiture statutes permit states and the federal government to file actions, under certain circumstances, to obtain ownership of private real and personal property that is related to certain categories of criminal activity. In Pennsylvania, the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. Ann. §§ 6801 and 6802 (the “CSFA”), provides that certain real and personal property that is connected to a violation of Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa. Cons. Stat. Ann. §§ 780-101 to 780-144, is subject to forfeiture by the Commonwealth of Pennsylvania. 42 Pa. Cons. Stat. Ann. § 6801. The CSFA sets forth the property that is subject to forfeiture by the Commonwealth, see id., and provides a procedure for the forfeiture proceedings, which must be filed in the court of common pleas of the judicial district where the property is located, see id. § 6802.
Plaintiffs’ claims in this action relate to property forfeited through civil forfeiture proceedings brought by the D.A.’s Office in the Court of Common Pleas of Philadelphia County. The majority of the property, Plaintiffs allege, was
4

forfeited pursuant to the CSFA.2 Second Am. Compl. ¶ 41 [hereinafter SAC], ECF No. 157. According to Plaintiffs, Philadelphia’s civil forfeiture program is one of the largest municipal forfeiture programs in the country, and “unprecedented in scale.” Id. at 14, ¶ 54. Plaintiffs allege that the D.A.’s Office forfeited over $90 million worth of property from 1987 to 2012 through civil forfeiture proceedings, id. ¶ 53, yielding an average of $5.6 million in forfeiture revenue each year, id. ¶ 54. Forfeiture data Plaintiffs obtained from the Pennsylvania Office of the Attorney General indicates that the D.A.’s Office collected over $72.6 million in forfeiture revenue from fiscal years 2002 through 2014. Id. ¶ 57. Plaintiffs allege that this amount constitutes nearly one-fifth of the general budget of the D.A.’s Office as appropriated by the City of Philadelphia. Id. ¶ 60.
Plaintiffs allege that the City and D.A. Defendants seize large quantities of personal property for forfeiture, including cash, cell phones, clothing, jewelry, prescription medication, and licensed firearms. Id. ¶ 81. Plaintiffs claim that the majority of the cash seized involves small amounts of money. Id. ¶ 73. For example, in 2010, Philadelphia filed 8,284 currency forfeiture petitions, with an average of $550 at

2

According to Plaintiffs, there are at least 29 other

Pennsylvania statutes authorizing civil forfeiture. See Pls.’

Notice of Suppl. Authority at 1, ECF No. 196.

5

issue in each case. Id. ¶ 74. Plaintiffs also allege that the City and D.A. Defendants file civil forfeiture petitions on 300 to 500 real properties (mostly private residences) each year. Id. ¶ 83. Approximately 100 of these real properties are forfeited and sold at auction annually; and a significant majority of the remaining cases settle under threat of civil forfeiture. Id.
Plaintiffs allege that the City Defendants, the D.A. Defendants, and the FJD Defendants had various roles in creating and implementing Philadelphia’s civil forfeiture procedures. Those procedures have changed over the course of this lawsuit in response to the partial settlement of Plaintiffs’ claims and negotiations among the parties in response to the remaining claims. As such, Plaintiffs’ Second Amended Complaint contains allegations relating to three sets of procedures: (1) the civil forfeiture procedures that existed at the time they filed this action, which Plaintiffs allege were in place from approximately January 2, 2007, through October 19, 2015 (“the Prior Procedures”); (2) the civil forfeiture procedures in place from October 19, 2015, through July 25, 2016, pursuant to interim measures adopted by Defendants in response to the instant lawsuit; and (3) the current civil forfeiture procedures, which the First Judicial District adopted on July 25, 2016 (“the
6

Current Procedures”). The relevant details of each of these three sets of procedures are set forth below.
A. Civil Forfeiture Procedures Prior to October 2015 Plaintiffs allege that, prior to January 2007, the
court administrators of the First Judicial District, predecessors of the FJD Defendants, assigned forfeiture matters to a criminal court judge or criminal motions judge of the Court of Common Pleas. See SAC ¶¶ 114-19. From 1999 to 2004, a criminal court judge heard all forfeiture cases in a dedicated courtroom in the Criminal Justice Center, with a complete court staff, including a stenographer, a Clerk of Quarter Sessions, and criminal listing support staff. Id. ¶ 115. At some point between 2004 and 2007, a shortage of personnel resulted in no Clerk of Quarter Sessions or stenographer in the forfeiture courtroom. Id. ¶ 122.
In January 2007, the FJD Defendants notified Assistant District Attorneys that forfeiture and related proceedings would be transferred to the Civil Court Division. Id. ¶ 123. Accordingly, the FJD Defendants transferred forfeiture proceedings to Courtroom 478 in City Hall. Id. Courtroom 478 lacked a presiding judge or any officer with adjudicative ability, and had no stenographer, court reporter, or Clerk of Quarter Sessions. Id. ¶ 124. Instead, Assistant District
7

Attorneys with the Public Nuisance Task Force – the unit of the D.A.’s Office that filed and litigated civil forfeiture petitions – fully controlled the proceedings. Id. ¶ 129. Cases involving personal property were frequently assigned to a paralegal instead of a prosecutor. Id. ¶ 130.
Under this procedure, upon the filing of a civil forfeiture petition, property owners were required to appear in Courtroom 478 at 9 a.m. to attempt to reclaim their property. Id. ¶ 127. If a property owner failed to appear, prosecutors marked the case for default judgment without any determination, judicial or otherwise, as to the reason the property owner did not appear. Id. ¶ 132. If the property owner did appear, the assigned prosecutor or paralegal would discuss the case with the property owner, frequently advising the owner that he or she did not need an attorney. Id. ¶ 135. Plaintiffs allege that prosecutors and paralegals (1) routinely gave property owners a set of over 50 pattern interrogatories, to be answered under penalty of perjury; (2) compelled owners of real property to execute agreements to unseal their residences on certain conditions, including barring specific individuals from entering indefinitely and waiving statutory and constitutional defenses; and (3) relisted civil proceedings an average of five times each, requiring property owners to appear each time or risk default of their property. See id. ¶¶ 136-41.
8

B. Defendants’ Interim Measures Plaintiffs filed this suit on August 11, 2014,
challenging the constitutionality of the above procedures. Plaintiffs allege that on or about June 25, 2015, the FJD Defendants met with the D.A.’s Office to discuss changes to the administration of civil forfeiture proceedings. Id. ¶ 143. As an interim measure, beginning on October 19, 2015, Court of Common Pleas Trial Commissioners, who are not judges,3 began presiding over all forfeiture and related proceedings in Courtroom 478. See id. ¶ 144. These proceedings were recorded, and the Trial Commissioners were assisted by courtroom clerks. See id. The Trial Commissioners began referring all disputed matters to a criminal motions judge. Id. In January 2016, the FJD Defendants moved civil forfeiture proceedings from Courtroom 478 to a criminal courtroom. Id. ¶ 145. Following a seizure of property, property owners are served with civil forfeiture petitions, which contain a date for a pretrial conference. Id. ¶ 146. Property owners are required to answer forfeiture petitions within 30 days, often before the pretrial conference,

3

The website of the First Judicial District Municipal

Court, Civil Division, explains that Trial Commissioners are

“not judges but they do have the authority to handle all

requests that do not require . . . judicial determination.”

First Jud. Dist. of Pa., Mun. Ct., Civ. Div.,

http://www.courts.phila.gov/municipal/civil (last visited March

16, 2017). As Plaintiffs point out, the website specifically

states that “legal determination[s]” are “beyond” the “accepted

scope of responsibilities” for Trial Commissioners. Id.

9

at which the owners are informed of their rights. Id. ¶ 147. Forfeiture petitions are docketed as criminal matters unless the property owner requests a jury trial. Id. ¶ 150.

C. Civil Forfeiture Procedures Adopted in 2016 Plaintiffs allege that on July 25, 2016, the FJD
Defendants posted General Court Regulation No. 2 of 2016 (the “GCR”),4 entitled “Proceedings Seeking Civil Forfeiture of Real Estate and Seized Property,” on the First Judicial District’s website. See id. ¶ 152.
Plaintiffs allege that the GCR is problematic because, inter alia, it: (1) requires civil forfeiture petitions to be administered by criminal judges applying criminal rules of procedure; (2) implicates Fifth Amendment rights by requiring an answer to be filed, with default judgment as a penalty, without any notice that the answer may be used in related criminal proceedings; (3) increases a risk of erroneous deprivation by deferring an explanation of the forfeiture process until the pretrial conference; (4) authorizes Trial Commissioners, who are not judges, to perform adjudicative acts, such as deciding whether a case presents any genuine issues of material facts or whether property owners knowingly and voluntarily waive their right to a jury trial; (5) fails to advise property owners of

4

The nature of this regulation and its source of

authority are discussed below. See infra at 25-26.

10

the burdens of proof they must meet; (6) fails to advise property owners of their right to request a prompt postdeprivation hearing; and (7) does not clarify any of the procedures that will apply in a post-deprivation hearing. See id. ¶ 154.
III. PROCEDURAL HISTORY Plaintiffs initiated this action on August 11, 2014,
ECF No. 1, and amended their complaint on November 17, 2014, ECF No. 40. Plaintiffs filed a Second Amended Complaint on September 15, 2016. ECF No. 157. Plaintiffs Sourovelis, Welch, and Hernandez are the owners of real property against which the D.A. Defendants commenced, under the CSFA, forfeitures that were pending in the Court of Common Pleas of Philadelphia County at the time the First Amended Complaint was filed. SAC ¶¶ 9-17. Plaintiff Geiger is the owner of personal property against which the D.A. Defendants commenced a civil forfeiture proceeding. Id. ¶¶ 18-22. Plaintiffs’ Second Amended Complaint asserts the following seven claims:
(1) the City and D.A. Defendants’ policy and practice of failing to provide notice or a hearing before seizing real property violates the Due Process Clause of the Fourteenth Amendment (Count One);
(2) the City and D.A. Defendants’ policy and practice of requiring real property owners to waive their constitutional and statutory rights in order to obtain access to their property or have the forfeiture petition withdrawn violates the Due
11

Process Clause of the Fourteenth Amendment (Count Two);
(3) Defendants’ policy and practice of failing to provide a prompt, post-deprivation hearing violates the Due Process Clause of the Fourteenth Amendment (Count Three);
(4) Defendants’ policy and practice of repeatedly “relisting” forfeiture proceedings violates the Due Process Clause of the Fourteenth Amendment (Count Four);
(5) the City and D.A. Defendants’ retention of forfeited property and its proceeds violates the Due Process Clause of the Fourteenth Amendment (Count Five);
(6) Defendants’ policy and practice of prosecutors controlling forfeiture hearings violates the Due Process Clause of the Fourteenth Amendment (Count Six);
(7) Defendants’ administration of civil forfeiture and related proceedings, including notices to property owners, the timing of filings, and access to court hearings, violates the Due Process Clause of the Fourteenth Amendment (Count Seven).
Id. ¶¶ 290-360. The instant motions to dismiss relate to Counts
Three, Four, Six, and Seven.
On March 16, 2015, Defendants filed a joint motion to
dismiss Plaintiffs’ claims. ECF No. 52. The Court denied the
motion on May 28, 2015. ECF Nos. 66, 67. Defendants
subsequently sought reconsideration of the Court’s order, which
the Court denied on September 7, 2016. ECF No. 150.
12

The parties settled Counts One and Two in an agreement the Court approved on November 4, 2015.5 ECF No. 104. On August 1, 2016, Plaintiffs filed a motion seeking to (1) join the FJD Defendants with respect to Counts Three, Four, and Six; (2) file a Second Amended Complaint adding a Seventh Claim and other new allegations; and (3) sever Count Five. ECF No. 139. The Court granted the motion on September 14, 2016.6 ECF No. 155.
On September 15, 2016, Plaintiffs filed the Second Amended Complaint, which (1) substituted current Mayor of Philadelphia James F. Kenney for former Mayor Michael A. Nutter; (2) substituted current Philadelphia Police Department Commissioner Richard Ross, Jr., for former Commissioner Charles

5

The agreement, in essence, (1) prohibited the City

Defendants and D.A. Defendants from seeking any ex parte “seize

and seal” order against real property under the CSFA unless

certain specific criteria are met; (2) required the D.A.

Defendants to move to vacate any ex parte “seize and seal” order

presently in effect using model forms agreed upon by the

parties; (3) required the D.A. Defendants to provide notice to

civil forfeiture respondents who have entered into an unsealing

agreement or settlement agreement – all of which are now void

and unenforceable – that the conditions of those agreements no

longer applied; and (4) required the D.A. Defendants to produce

certain documents to Plaintiffs regarding “seize and seal”

applications filed in civil forfeiture cases. See ECF No. 104.

6

Pursuant to the Court’s September 14, 2016, order,

Count Five (the conflict of interest claim) is now severed from

the claims at issue in the instant motions: Counts Three, Four,

Six, and Seven.

13

H. Ramsey; (3) added the FJD Defendants; and (4) added Count Seven.7 ECF No. 157.
In response to the Second Amended Complaint, the City Defendants filed a motion to dismiss Counts Four and Six of the Second Amended Complaint, ECF No. 158, the D.A. Defendants filed an answer, ECF No. 161, and the FJD Defendants moved to dismiss all claims against them, ECF No. 173. Plaintiffs have opposed both the City Defendants’ motion to dismiss, ECF No. 165, and the FJD Defendants’ motion to dismiss, ECF No. 175. The City Defendants filed a motion for leave to file a reply brief on October 5, 2016. ECF No. 166. The FJD Defendants filed a motion for leave to file a reply brief on February 1, 2017. ECF No. 180. Plaintiffs filed a motion for leave to file a surreply brief in opposition to the FJD Defendants’ motion to dismiss on February 14, 2017. ECF No. 186.
The Court held a hearing, and is now ready to rule on both motions to dismiss.

IV. LEGAL STANDARDS A. Rule 12(b)(1) A party may move to dismiss a complaint for lack of
subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The

7

The City, Mayor Kenney, and Commissioner Ross are

referred to herein as the “City Defendants.” The District

Attorney’s Office and District Attorney Williams are referred to

herein as the “D.A. Defendants.”

14

Court’s method of review is determined by whether the Rule 12(b)(1) motion presents a “facial” or “factual” attack on the claim at issue. Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). A facial attack “contests the sufficiency of the pleadings,” In re Schering-Plough Corp., 678 F.3d 235, 243 (3d Cir. 2012), “whereas a factual attack concerns the actual failure of [a plaintiff’s] claims to comport [factually] with the jurisdictional prerequisites,” CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008) (alterations in original) (quoting U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007)).
“In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). “Thus, a facial attack calls for a district court to apply the same standard of review it would use in considering a motion to dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of the nonmoving party.” Aichele, 757 F.3d at 358.
By contrast, “[i]n reviewing a factual attack, the court may consider evidence outside the pleadings.” Gould Elecs., 220 F.3d at 176. A factual attack places the burden of proof on plaintiff to show “that jurisdiction does in fact
15

exist.” Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). Accordingly, “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id.8
B. Rule 12(b)(6) A party may move to dismiss a complaint for failure to
state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering such a motion, the Court must “accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” DeBenedictis v. Merrill Lynch & Co., 492 F.3d 209, 215 (3d Cir. 2007) (quoting Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989)). To withstand a motion to dismiss, the complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. Although a plaintiff is

8

As discussed below, the FJD Defendants’ motion to

dismiss Plaintiffs’ Second Amended Complaint pursuant to Rule

12(b)(1) is a facial attack. See infra 18-19.

16

entitled to all reasonable inferences from the facts alleged, a plaintiff’s legal conclusions are not entitled to deference and the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
The pleadings must contain sufficient factual allegations so as to state a facially plausible claim for relief. See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In deciding a Rule 12(b)(6) motion, the Court limits its inquiry to the facts alleged in the complaint and its attachments, matters of public record, and undisputedly authentic documents if the complainant’s claims are based upon these documents. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
V. THE FJD DEFENDANTS’ MOTION TO DISMISS The FJD Defendants move to dismiss all four claims
against them pursuant to Rules 12(b)(1) and 12(b)(6). See ECF
17

No. 173. The FJD Defendants argue that (1) Plaintiffs lack standing to challenge the FJD’s civil forfeiture procedures because they cannot allege a real and imminent threat of future injury; (2) Plaintiffs’ claims regarding the new civil forfeiture procedures are not ripe because there are no factual allegations about how the FJD’s Current Procedures are applied; (3) Plaintiff’s claims regarding the previous civil forfeiture procedures are moot because the challenged procedures no longer exist; (4) the FJD’s civil forfeiture procedures provide due process; (5) federalism and comity principles bar this Court from hearing Plaintiffs’ claims; and (6) the FJD Defendants are not proper defendants for Plaintiffs’ claims that certain state statutes are unconstitutional because the FJD did not enact and does not enforce those statutes. See FJD Defs.’ Mem. Law. Supp. Mot. Dismiss [hereinafter “FJD Mem.”], ECF No. 173.
A. Rule 12(b)(1) The FJD Defendants move to dismiss all of the claims
against them under Rule 12(b)(1) on the basis that (1) Plaintiffs lack standing; (2) Plaintiffs’ claims are not ripe; (3) Plaintiffs’ claims are moot; and (4) principles of federalism and comity prevent this Court from hearing Plaintiffs’ claims. See FJD Mem. at 10-19; 27-30.
18

Plaintiffs argue that the FJD Defendants’ motion presents a facial, rather than factual, attack on Plaintiffs’ claims, because it contests the sufficiency of Plaintiffs’ pleadings. See Pls.’ Opp. at 14-15, ECF No. 175. The FJD Defendants do not state whether they intend to make a facial or factual attack, do not respond to Plaintiffs’ assertion that their motion presents a facial attack, and do not contest any of Plaintiffs’ alleged facts through declarations or documentary evidence. Accordingly, the Court will treat the FJD Defendants’ motion as a facial attack. The Court will therefore consider only the allegations of Plaintiffs’ Second Amended Complaint and the documents referenced therein, and construe the alleged facts in favor of Plaintiffs. See Gould Elecs., 220 F.3d at 176.
1. Standing, Mootness, and Ripeness The FJD Defendants argue that Plaintiffs lack standing to challenge the Current Procedures because Plaintiffs’ property was subject to civil forfeiture under the Prior Procedures, which are no longer in effect, and therefore they cannot allege a future injury with respect to the Current Procedures. See FJD Mem. at 10-14. The FJD Defendants also argue that, to the extent Plaintiffs have standing to challenge the Current Procedures, their claims are not ripe. See id. at 14-17. Finally, the FJD Defendants argue that Plaintiffs’ claims
19

regarding the Prior Procedures are moot because the procedures Plaintiffs complain about are no longer in effect. See id. at 17-19.
Plaintiffs respond that the FJD Defendants fundamentally misunderstand their claims. Plaintiffs contend that they are not bringing separate challenges to the Prior Procedures and the Current Procedures. Rather, according to Plaintiffs, they allege that Philadelphia’s civil forfeiture procedures were, and still are, unconstitutional, and that the changes the FJD Defendants have implemented have not rendered the procedures constitutional. Plaintiffs further argue that this Court already determined that they had standing at the outset of this litigation, and Plaintiffs’ claims have not become moot during the litigation because (1) their claims are inherently transitory, and (2) their anticipated classcertification motion will relate back to August 11, 2014, when they filed the original complaint and motion for class certification. See Pls.’ Opp. at 16-21.
Article III of the United States Constitution limits federal court jurisdiction to justiciable cases or controversies. In order for a federal court to hear a plaintiff’s claim, the plaintiff must have standing, and the claim must be both ripe and not moot. Article III standing requires (1) injury in fact, (2) causation, and (3)
20

redressability. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “The requirements for standing do not change in the class action context.” In re Horizon Healthcare Servs. Data Breach Litig., 846 F.3d 625, 634 (3d Cir. 2017). Accordingly, “[n]amed plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.” Id. (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)).
“The ripeness doctrine determines ‘whether a party has brought an action prematurely, and counsels abstention until such time as a dispute is sufficiently concrete to satisfy the constitutional and prudential requirements of the doctrine.’” Pittsburgh Mack Sales & Serv., Inc. v. Int'l Union of Operating Eng'rs, Local Union No. 66, 580 F.3d 185, 190 (3d Cir. 2009) (quoting Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir. 2003)).
A plaintiff’s claim becomes moot “when ‘the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.’” United Steel Paper & Forestry Rubber Mfg. Allied Indus. & Serv. Workers, 842 F.3d 201, 208 (3d Cir. 2016) (quoting Cnty of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). “The central question of all mootness problems is whether changes in circumstances that
21

prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.” Id. (quoting Rendell v. Rumsfeld, 484 F.3d 236, 240 (3d Cir. 2007)).
a. Challenge to Prior Procedures As Plaintiffs point out, this Court already determined that Plaintiffs had standing to challenge Philadelphia’s civil forfeiture procedures at the beginning of this litigation. See Sourovelis v. City of Phila., 103 F. Supp. 3d 694, 700-06 (E.D. Pa. 2015). Accordingly, Plaintiffs have standing to challenge the civil forfeiture procedures that were in place when this litigation was filed. Further, this Court permitted Plaintiffs to amend their complaint to assert claims against the FJD Defendants for their part in creating the civil forfeiture procedures in place prior to October 2015. The FJD Defendants seek to distinguish the Court’s prior ruling, claiming that the Court’s previous determination that Plaintiffs have standing to challenge past civil forfeiture is irrelevant, because “Plaintiffs’ requested relief against the FJD is only forward-looking, injunctive relief.” See FJD Mem. at 11. This assertion is simply incorrect. Plaintiffs challenge both the past practices that were in place at the time they filed this litigation, as well as the interim measures and Current Procedures that Defendants, including the FJD
22

Defendants, have enacted after the filing of this action. In the Second Amended Complaint, Plaintiffs seek many forms of relief, including the retrospective relief of the return of their property and a declaration that previous civil forfeiture procedures were unconstitutional.9 See SAC at 70.
The FJD Defendants also argue that Plaintiffs “concede” that the previous civil forfeiture procedures no longer exist, and therefore that Plaintiffs’ claims regarding those procedures are “futile.” FJD Mem. at 18. However, this Court previously held that Plaintiffs had standing to challenge past civil forfeiture procedures, even though the District Attorney’s Office had already made changes to the Prior Procedures by that time, because Plaintiffs have standing to seek retrospective relief to remedy the alleged past deprivation of their constitutional rights. See Sourovelis, 103 F. Supp. 3d at 702 (holding that Plaintiffs have standing to seek a declaration that past, changed practices are unconstitutional and violated due process); Houchins v. KQED, Inc., 438 U.S. 1, 25-26 (1978) (“[A] defendant’s corrective action . . . following commencement of suit does not deprive the court of power to decide whether the previous course of conduct was unlawful.”).

9

As a result, the cases the FJD Defendants cite, in

which courts have held that plaintiffs solely seeking

prospective injunctive relief must allege a future injury, do

not establish that Plaintiffs here lack standing to challenge

the Prior Procedures. See FJD Mem. at 11-13.

23

Finally, the FJD Defendants argue that any claims based on past practices are now moot because, as discussed above, the civil forfeiture procedures have changed. See FJD Mem. at 17-19. As Plaintiffs argue, the Court previously considered and rejected this same argument. The Court explained:
[A] defendant cannot automatically moot a case simply by ending its unlawful conduct once sued. Otherwise, a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends. Sourovelis, 103 F. Supp. 3d at 701 (quoting Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013)). The FJD Defendants argue that, unlike the interim changes that were made prior to the Court’s previous ruling, the GCR is a “court order,” which is “not some informal policy that was drafted to get out from under litigation.” FJD Mem. at 18. Accordingly, there is “no indication” that the FJD will simply abandon the GCR and Local Rule 588 when the case is over. Id. at 19. As the Court previously explained, “the Supreme Court has held that ‘a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Sourovelis, 103 F. Supp. 3d at 701 (quoting Friends of the Earth, Inc. v. Laidlaw
24

Envt’l Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)). Plaintiffs argue that a “court order” is not sufficient to meet this burden, as the Supreme Court and Third Circuit have both held that even legislative repeal of an unconstitutional practice is insufficient to moot a claim. See Pls.’ Opp. at 24 (citing Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 662 (1993); People Against Police Violence v. City of Pittsburgh, 520 F.3d 226, 231 n.2 (3d Cir. 2008)).
The FJD Defendants seem to imply that the GCR is akin to a judicial order issued in a state court case, and therefore that this Court should give it greater deference than, for example, a legislative order, or the informal practices implemented by the D.A.’s Office prior to the Court’s previous motion to dismiss ruling. That is not so. The GCR is an administrative, procedural rule signed by Judge Allen in her capacity as an administrative judge, and does not have the imprimatur of a judicial order. See GCR, FJD Mot. Ex. A, ECF No. 173. As the Supreme Court of Pennsylvania has explained, “[a]dministrative judges . . . are charged with the administration of their respective divisions.” Petition of Blake, 593 A.2d 1267, 1269 (Pa. 1991). In that capacity, they are classed with the appointment and assignment of the personnel of their division, and have “a host of other supervisory duties
25

to facilitate the speedy and proper administration of justice.” Id. Under this power and directive, the administrative judge of the FJD – whether Judge Allen or some future administrative judge – would have the power to promulgate a new general court regulation further changing the FJD’s civil forfeiture procedures, including reverting to the procedures in place from 2007 through October 2015.10
Indeed, Plaintiffs allege that, prior to 2007, civil forfeiture proceedings were handled by judges, until the FJD, facing a shortage of resources, decided to give those responsibilities to prosecutors and paralegals in Courtroom 478 instead. See SAC ¶¶ 114-30. While there may be “no indication” that the FJD will “abandon” the GCR, there is also no indication that it will not; particularly if it again faces resource constraints. The FJD Defendants’ assertions that the FJD will not revert to the Prior Procedures are simply not enough to meet their “formidable burden” of demonstrating that the previous civil forfeiture procedures will not reoccur.

10

At the hearing, counsel for the FJD Defendants

represented that general court regulations such as the GCR are

provided to the state rules procedure committee to ensure that

the draft general court regulation is not in conflict with the

state procedural rules, but there is no notice and comment

period, and a draft general court regulation is not provided to

the Board of Judges for a vote. See Hr’g Tr. 46:6-25; 47:1,

Mar. 15, 2017, ECF No. 200.

26

As a result, the Court find that Plaintiffs have standing to assert claims against the FJD Defendants for their role in creating and implementing past civil forfeiture procedures, and that Plaintiffs’ claims have not become moot.
b. Challenge to Current Procedures The FJD Defendants argue that Plaintiffs lack standing to seek prospective relief regarding the new civil forfeiture procedures implemented under the GCR, because Plaintiffs do not plausibly allege that they will be subject to civil forfeiture proceedings in the future, and thus they cannot allege an injury with respect to those practices. See FJD Mem. at 10-14. The FJD Defendants also argue that Plaintiffs’ claims regarding the new practices are not “ripe” because Plaintiffs do not have ongoing forfeiture proceedings, and therefore they are basing their claims on speculation about how the GCR might be applied in the future. See FJD Mem. at 14-17. With respect to both arguments, Plaintiffs respond that the FJD Defendants misconstrue their claims, and that Plaintiff’s claims “are not (and need not be) specific to the court regulation or Local Rule 588.” Pls.’ Opp. at 25. Plaintiffs argue that they are challenging “the FJD Defendants’ procedures generally, having alleged that they were unconstitutional when this litigation commenced and remain
27

unconstitutional today.” Id. Plaintiffs contend, therefore, that because the Court determined that Plaintiffs had standing to challenge the FJD Defendants’ procedures at the outset of this litigation, and none of the FJD Defendants’ changes have mooted their claims, they still have standing now. See id. Plaintiffs argue that the FJD Defendants’ ripeness argument fails for the same reason: Plaintiffs are not making a separate, pre-enforcement challenge to the GCR. Instead, Plaintiffs argue, they challenge the constitutionality of the procedures that were in place, and allege that new changes the FJD Defendants have made have not remedied the constitutional deficiencies.
The FJD Defendants respond that Plaintiffs have added “a new claim based on new facts (and against a new party),” which is “no different for standing purposes than if they brought a separate case with prospective claims challenging the FJD’s current forfeiture procedures.” FJD Reply at 3, ECF No. 180. According to the FJD Defendants, Plaintiffs must establish standing separately for each claim and form of relief sought, which they have not done with respect to their claims challenging the Current Procedures. See id.
Plaintiffs respond in their surreply that the FJD Defendants’ argument that the Second Amended Complaint must be treated like a new case for standing purposes is not supported
28

by any authority, and would drag the Court into an endless “black hole” of litigation, defeating the point of the “inherently transitory” exception to the mootness doctrine. Pls.’ Surreply Ex. A, at 1-3, ECF No. 186-1 (citing Williams v. City of Phila., 270 F.R.D 208, 220 (E.D. Pa. 2010)). Plaintiffs explain that if the Court concluded that Plaintiffs lack subject matter jurisdiction to challenge the new aspects of the civil forfeiture procedures, they would move for leave to amend their complaint to add new named plaintiffs who own property against which civil forfeiture petitions have been filed under the procedures currently in effect. See id. At that point, the FJD Defendants could make cosmetic changes to their procedures again, and the cycle would continue. See id. at 3.
The Court agrees with Plaintiffs’ characterization of their claims. Every one of the four counts asserted against the FJD Defendants – Counts Three, Four, Six, and Seven – contains allegations that the pre-October 2015 civil forfeiture procedures were unconstitutional, and then alleges that the changes to the procedures have not fixed these deficiencies. Therefore, Plaintiffs do not need to add new named plaintiffs in order to allege that changes to the procedures did not remedy the constitutional deficiencies. This is not like a new case being brought based on the Current Procedures; instead,
29

Plaintiffs claim that the procedures were unconstitutional, and still are, despite the enactment of the Current Procedures.
Accordingly, the Court finds that Plaintiffs have standing with respect to all of their claims against the FJD Defendants, and that those claims are ripe.
2. Federalism and Comity The FJD Defendants’ final argument in support of their Rule 12(b)(1) motion is that the Court should abstain from hearing Plaintiffs’ claims because “[f]ederalism and comity principles prevent this Court from dictating to the FJD how to operate its courts.” FJD Mem. at 27-30. In response, Plaintiffs argue that (1) federal courts regularly exercise jurisdiction over challenges to the constitutional adequacy of state-court administration; (2) Plaintiffs’ requested relief would not entail impermissible federal supervision of state court operations; (3) this Court previously considered and rejected the argument that this case raises abstention issues under Younger v. Harris, 401 U.S. 37 (1971); and (4) this Court invited Plaintiffs to join the FJD Defendants to this lawsuit to establish jurisdiction over them. See Pls.’ Opp. at 28-31. The Court finds Plaintiffs’ arguments - which the FJD Defendants do not even address in their reply - persuasive. The
30

issue is not the power of the federal court to intervene to redress the violation, but rather the degree and nature of the intervention. The FJD Defendants rely primarily on O’Shea v. Littleton, 414 U.S. 488 (1974), in which the Supreme Court refused to enter an injunction that would require it to continuously supervise and monitor state court operations, including “periodic reporting,” because it would raise issues under Younger, 401 U.S. 37. O’Shea, 414 U.S. at 501. However, in this case, Plaintiffs do not seek any ongoing monitoring of the civil forfeiture procedures, nor any type of remedy that would entangle this Court with the management of the First Judicial District. Rather, Plaintiffs seek a declaration that the Prior Procedures and Current Procedures are unconstitutional, and an injunction enjoining those practices. If Plaintiffs obtain their desired relief, the FJD would be free to design any appropriate procedures, provided those procedures accord with due process. Accordingly, it does not violate notions of federalism and comity for this Court to exercise jurisdiction over the FJD to remedy any due process violations.11

11

The Supreme Court and the Third Circuit have generally

approved of this practice. See, e.g., Gerstein v. Pugh, 420

U.S. 103, 107 & n.8 (1975) (exercising jurisdiction over class

action in which the plaintiffs alleged that the defendants,

various state officials including judges, had violated the

plaintiffs’ constitutional rights by detaining them without

holding judicial hearings on the issue of probable cause for

detention); Georgevich v. Strauss, 772 F.2d 1078, 1088 (3d Cir.

31

Indeed, this Court previously rejected the City and D.A. Defendants’ arguments that it abstain from exercising its jurisdiction over Plaintiffs’ claims.
* * * For the foregoing reasons, the Court will deny the FJD Defendants’ motion to dismiss Plaintiffs’ Second Amended Complaint under Rule 12(b)(1) for lack of subject matter jurisdiction.
B. Rule 12(b)(6) The FJD Defendants argue that the Court should dismiss
the claims against them for failure to state a claim because (1) the FJD’s procedures provide due process in accordance with the Fourteenth Amendment; and (2) the FJD Defendants are not the proper defendants because the FJD did not enact the Control Substances Forfeiture Act. See FJD Mem. at 19-27; 30.
The FJD Defendants specifically argue that the FJD’s current civil forfeiture procedures provide adequate due process because (1) Local Rule 588 provides a procedure for a postdeprivation hearing; (2) respondents receive a hearing before an impartial judicial officer; (3) the FJD is not required to
1985) (discussing various Supreme Court decisions “set[ting] to rest any concerns about the propriety of suing state judges in federal court”). In Georgevich, the Third Circuit ultimately abstained from exercising jurisdiction, after concluding that state law already required the relief that the plaintiffs sought. See Georgevich, 772 F.2d at 1094-95.
32

advise claimants of their rights; (4) the GCR does not implicate Fifth Amendment rights; and (5) Plaintiffs fail to allege that the FJD’s Current Procedures for common law forfeitures are unconstitutional. See FJD Mem. at 19-27.
As an initial matter, it is unclear which claims the FJD Defendants intend to attack with these arguments, as they do not refer to specific claims. The Second Amended Complaint contains four claims against the FJD Defendants, alleging that the following policies and procedures violate due process: (1) failure to provide a prompt post-deprivation hearing (Count Three); (2) repeated re-listing of civil forfeiture proceedings (Count Four); (3) allowing prosecutors, as opposed to neutral arbitrators, to control the civil forfeiture courtroom (Count Six); and (4) failure to provide adequate notice and use civil rules of procedure (Count Seven). As Plaintiffs note, the FJD Defendants’ arguments could apply only to Counts Three and Seven: (1) none of the arguments relate to re-listing hearings (Count Four); and (2) the arguments relate to the procedures currently in place, and therefore cannot apply to Count Six, which solely relates to the procedures in place prior to October 2015. Accordingly, the Court will discuss the applicability of the FJD Defendants’ arguments to Counts Three and Seven.
33

1. Count Three In Count Three, Plaintiffs allege that the FJD Defendants fail to provide for a prompt post-deprivation hearing following the seizure of property subject to civil forfeiture. See SAC ¶¶ 319-29. The FJD Defendants argue that Plaintiffs’ allegations fail to state a claim because Local Rule 588, which the First Judicial District enacted prior to the filing of the instant action, provides for a prompt post-deprivation hearing. See FJD Mem. at 19-23. Plaintiffs argue that (1) the Court already considered and rejected this exact same argument with respect to State Rule 588, and (2) whether or not Local Rule 588 actually provides constitutionally adequate due process protections involves questions of fact not resolvable on a motion to dismiss. See Pls.’ Opp. at 34-37. Plaintiffs’ allegations regarding Count Three in the Second Amended Complaint are virtually unchanged from those in the First Amended Complaint, with the exception of additional allegations relating to the FJD Defendants and the procedures implemented following the filing of this lawsuit. Plaintiffs allege that the FJD Defendants have a “policy and practice of administering civil-forfeiture proceedings against seized or restrained property when they know or should reasonably know that those proceedings afford property owners no meaningful opportunity to contest the seizure or restraint at a meaningful
34

time before the ultimate hearing on the merits.” SAC ¶ 325. With respect to the Current Procedures, Plaintiffs allege that the GCR fails to cure the due process deprivation because it “forces property owners to wait at least 60 days before being informed of the availability of post-deprivation relief and then an indefinite amount of time before a prompt, post-deprivation hearing is scheduled.” Id. ¶ 327.
The FJD Defendants argue that, contrary to Plaintiffs’ allegations, persons against whose property civil forfeiture proceedings are filed are provided with a prompt, postdeprivation hearing in accordance with Local Rule 588, which the First Judicial District adopted on August 11, 2016 (over two years after the instant action was filed). See FJD Mem. at 2023. Local Rule 588 states that the Office of Judicial Records “shall schedule a prompt hearing” on a motion for the return of property. See FJD Mot. Ex. B, Local R. 588, ECF No. 173. The FJD Defendants argue that this rule provides constitutionally adequate due process. See FJD Mem. at 20-23.
As Plaintiffs point out in response, the Court already considered and rejected similar arguments with respect to Pennsylvania Rule of Criminal Procedure 588 in its decision denying the City and D.A. Defendants’ motion to dismiss the First Amended Complaint. See Sourovelis, 103 F. Supp. 3d at 708. The Court held that, regardless of cases finding
35

Pennsylvania Rule 588 to provide sufficient post-deprivation process in other contexts, it is not clear as a matter of law that a Pennsylvania Rule 588 motion would provide a constitutionally sufficient chance to contest the basis for the deprivation at a meaningful time and in a meaningful manner in this context. See id. at 708. The FJD Defendants attempt to distinguish this Court’s previous opinion by arguing that the Court discussed only Pennsylvania Rule 588, and, unlike that rule, the newly-enacted Local Rule 588 specifically states that a “prompt hearing” will be scheduled. See FJD Mem. at 22.
Plaintiffs argue that Local Rule 588, just like Pennsylvania Rule 588, does not provide a definitive time frame for a hearing. See Pls.’ Opp. at 35. Plaintiffs explain that they allege that property owners must wait an “indefinite” period of time before a hearing is scheduled, and that Local Rule 588 does not contradict this allegation, as it states only that a “prompt hearing” will be scheduled, without defining the term “prompt” or providing any particular timeframe. See id. at 35-36. Plaintiffs assert that the FJD Defendants’ argument that property owners are in fact provided with “prompt” hearings introduces factual questions not appropriate for resolution on a motion to dismiss. See id.
The Court finds that Plaintiffs have the better of this argument. Local Rule 588 provides only that a “prompt
36

hearing” shall be scheduled, without suggesting, even as a general rule, what may be a reasonable time period depending on the circumstances of any one case, or what procedures will be followed at the hearing - basic information necessary for the Court to evaluate whether property owners may contest the deprivation “at a meaningful time and in a meaningful manner” as required under Mathews v. Eldrige, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Determining whether constitutional due process is actually provided under the circumstances would thus require the determination of factual questions not resolvable on a motion to dismiss.12 None of the cases the FJD Defendants cite suggest otherwise.13
As a result, the Court will deny the FJD Defendants’ motion to dismiss Count Three for failure to state a claim.

12

The Court is not suggesting that the FJD needs to

commit to a specific time table, a matter left to the discretion

of that court, or that this Court purports to superintend the

FJD’s determination of its own practices and procedures.

However, some basic information is needed for this Court to

evaluate the constitutionality of the Current Procedures.

13

With one exception, the cases the FJD Defendants cite

holding that Pennsylvania Rule 588 provides adequate due process

in other contexts are the same cases the City and D.A.

Defendants previously cited, and that the Court considered and

distinguished in its previous opinion. See Sourovelis, 103 F.

Supp. 3d at 708. The sole new case, Williams v. Sminkey, No.

13-2057, 2016 WL 161498 (E.D. Pa. Jan. 14, 2016), does not apply

to civil forfeiture proceedings and thus is distinguishable for

the same reasons the Court distinguished the remainder of the

cases the FJD Defendants cite.

37

2. Count Seven Count Seven relates to the FJD Defendants’ role in administering civil forfeiture proceedings. Specifically, Plaintiffs allege that the procedures violate due process by (1) allowing criminal judges and trial commissioners to adjudicate civil forfeiture proceedings, (2) applying criminal procedures to civil proceedings, and (3) failing to provide property owners with adequate notice of their constitutional rights and legal responsibilities. See SAC ¶¶ 354-60. The FJD Defendants argue that Plaintiffs have failed to state a claim because (1) there is no constitutional issue with having criminal judges adjudicate civil forfeiture proceedings; (2) there is no constitutional requirement to provide individualized notice to property owners under City of West Covina v. Perkins, 525 U.S. 234, 241 (1999); and (3) Plaintiffs do not provide any factual basis to support their allegation that common law forfeiture procedures violate due process. See FJD Mem. at 23-27.
a. Adjudication First, the FJD Defendants argue that it is not unconstitutional for criminal judges to adjudicate civil forfeiture proceedings. Plaintiffs respond that they also allege that Trial Commissioners – who are not judges and do not
38

have the authority to make legal determinations – are actually adjudicating legal issues at civil forfeiture proceedings. See Pls.’ Opp. at 37-38 (citing SAC ¶ 154(d), which alleges that Trial Commissioners “perform adjudicative acts beyond the scope of their authorities, such as deciding whether a case presents any genuine issue of material fact, or whether property owners are knowingly and voluntarily waiving their right to a jury trial”). The FJD Defendants reply that the GCR provides that all motions for default or summary judgment are assigned to a judge for disposition, and if the parties reach an agreement at or before the pretrial conference, the matter is scheduled before a judge. See FJD Reply at 5 (citing GCR §§ 10, 12(f)). In their surreply, Plaintiffs argue that the question of which acts Trial Commissioners perform is a factual issue not suitable for resolution on this motion to dismiss. See Pls.’ Surreply at 4-5.
As an initial matter, while Plaintiffs’ well-pleaded allegations must be accepted as true for purposes of this motion, the Court need not accept as true allegations that are directly contradicted by indisputably authentic documents on which the complaint relies, or matters of public record. See Pension Benefit, 998 F.3d at 1197; ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 n.8 (3d Cir. 1994). Thus, the Court need not
39

accept Plaintiffs’ allegations as true to the extent that they directly contradict the unambiguous text of the GCR.
However, the Court disagrees with the FJD Defendants’ assertions that the GCR directly contradicts the allegations in Count Seven. Instead, Plaintiffs appear to have based their allegations on the GCR itself. While the FJD Defendants are correct that the GCR provides that all motions will be assigned to a judge for disposition, the GCR also allows Trial Commissioners to preside over pretrial conferences, at which certain binding legal determinations may be made. See GCR § 12, FJD Mot. Ex. A, ECF No. 173. Specifically, a Trial Commissioner may determine at a pretrial conference “[w]hether there are any genuine issues of material fact,” and whether property owners would like to waive their rights to a jury trial. See id. Therefore, at this stage of the proceedings, Plaintiffs have plausibly alleged that permitting non-judicial Trial Commissioners to adjudicate these legal questions deprives property owners of due process, including the fair administration of justice.
b. Use of Criminal Procedures Second, the FJD Defendants argue that there is no constitutional issue with using criminal judges and criminal procedures for civil forfeiture proceedings, because criminal
40

judges are impartial adjudicators, as due process requires. Plaintiffs respond that the FJD Defendants mischaracterize their allegations: they do not allege that criminal judges are not impartial, but instead that reliance upon criminal procedures by criminal judges causes the repeated re-listing of proceedings, which in turn denies due process. See Pls.’ Opp. at 38-39 (citing SAC ¶¶ 154, 334, 357-58). The Court agrees with Plaintiffs that their allegations of repeated and unjustified re-listing of civil forfeiture petitions state a plausible claim for a due process violation.
c. Adequate Notice Third, the FJD Defendants argue that Plaintiffs have failed to state a claim with respect to notice because the Supreme Court held in Perkins, 525 U.S. at 241, that individualized notice of state law remedies is not required when the remedies are “established by published, generally available state statutes and case law.” FJD Mem. at 24-25 (quoting Perkins, 525 U.S. at 241). Because the GCR discusses the rights of property owners, the FJD Defendants argue, no additional notice is required. See id. Plaintiffs respond that Perkins did not establish that statutory notice is always sufficient to satisfy due process, and a determination of whether it is sufficient requires consideration of factual issues, such as the
41

content of the notice provided through the statutes. See Pls.’ Opp. at 39-40. Plaintiffs’ characterization of Perkins is correct; the case involved a motion for summary judgment, and the Supreme Court concluded statutory notice was sufficient to satisfy due process based on the factual circumstances of that case. See Perkins at 238. Plaintiffs have therefore plausibly alleged that the FJD Defendants provide insufficient notice to property owners.
Accordingly, the Court will deny the FJD Defendants’ motion to dismiss Count Seven for failure to state a claim.
3. Proper Defendants Finally, the FJD Defendants argue that they are “not proper defendants” for Plaintiffs’ challenge to the constitutionality of Sections 6801 and 6802 of the Controlled Substances Forfeiture Act, because the FJD did not enact the statutes and does not defend them. See FDJ Mem. at 30. As Plaintiffs point out, however, they are not solely challenging the constitutionality of any section of the Controlled Substances Forfeiture Act, which did not establish all of the policies and procedures that Plaintiffs challenge. Rather, Plaintiffs are challenging various aspects of Philadelphia’s civil forfeiture policies and practices.
42

With respect to the FJD Defendants, in particular, Plaintiffs allege that the FJD Defendants had a role in establishing the unconstitutional policies and practices of (1) failing to provide a prompt post-deprivation hearing; (2) repeatedly re-listing civil forfeiture hearings; (3) allowing prosecutors and paralegals, as opposed to neutral arbitrators, to control civil forfeiture proceedings; and (4) failing to establish constitutionally adequate procedures for notice and procedural rules. None of these alleged policies and procedures, or lack thereof, are governed by the CSFA. As Plaintiffs allege that the FJD Defendants had a role in creating these policies and procedures, the FJD Defendants are “proper defendants” for Plaintiffs’ claims.
* * * For the foregoing reasons, the Court will deny the FJD Defendants’ motion to dismiss Plaintiffs’ Second Amended Complaint under Rule 12(b)(6) for failure to state a claim.
VI. THE CITY DEFENDANTS’ MOTION TO DISMISS The City Defendants move to dismiss Counts Four and
Six of the Second Amended Complaint on the basis that (1) Plaintiffs have not plausibly alleged that the City’s policies or customs caused the conduct at issue in Counts Four and Six; and (2) Plaintiffs have failed to alleged conduct by a City
43

policymaker in connection with those two claims. See City Defs.’ Mot. Dismiss, ECF No. 158. The City Defendants request dismissal with prejudice, on the basis that Plaintiffs have already had two opportunities to amend their complaint, as well as fifteen months of discovery. Id. Plaintiffs respond that (1) Federal Rule of Civil Procedure 12(g) precludes the City Defendants’ motion, as it is a successive motion to dismiss raising arguments previously available to them; and (2) the City Defendants’ arguments are meritless. See Pls.’ Opp. to City Defs.’ Mot. Dismiss [hereinafter Pls.’ City Opp.], ECF No. 165. The Court agrees that Rule 12(b) precludes the City Defendants’ motion.
Rule 12(g)(2) states that, “[e]xcept as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.” Fed. R. Civ. P. 12(g)(2). Rule 12(h)(2), in turn, provides that “[f]ailure to state a claim upon which relief can be granted . . . may be raised: (A) in any pleading allowed or ordered under Rule 7(a); (B) by motion under Rule 12(c); or (C) at trial.” Fed. R. Civ. P. 12(h)(2). Under Rule 12(h)(3), “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
44

The Court denied Defendants’ joint motion to dismiss the First Amended Complaint on May 12, 2015. ECF Nos. 66, 67. The Court specifically rejected Defendants’ arguments that Counts Four and Six failed to state a claim for relief under Rule 12(b)(6). See Sourovelis, 103 F. Supp. 3d at 708-09. The only changes Plaintiffs have made to Counts Four and Six in their Second Amended Complaint are the addition of a single paragraph to each count explaining how the GCR does not cure the problems alleged in each claim. As Plaintiffs point out, filing an amended complaint does not affect Rule 12(g)’s prohibition against successive motions to dismiss. See Pls.’ City Opp. at 2-3 (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1388 (“The filing of an amended complaint will not revive the right to present by motion defenses that were available but were not asserted in timely fashion prior to the amendment of the pleading.”)).
While the City Defendants make new arguments in the instant motion that Defendants did not make in their motion to dismiss the First Amended Complaint, none of those arguments relate to the only new material in Counts Four and Six: Plaintiffs’ allegations regarding the GCR. Instead, the City Defendants’ arguments in the instant motion relate solely to allegations that appeared in the First Amended Complaint. The
45

City Defendants therefore could have (and should have) made those arguments in their previous motion to dismiss.
In response, the City Defendants argue that Rule 12(h)(2) permits a defense based on failure to state a claim “to be presented through a Rule 12(b)(6) motion filed before an answer, a Rule 12(c) motion filed after an answer, or even during trial,” and therefore that they are able to file a motion to dismiss pursuant to Rule 12(b)(6) at this stage of the case. See City Reply at 1 (citing Fed. R. Civ. P. 12(h)(2)(C)), ECF No. 166-1. The City Defendants misunderstand Rule 12(h)(2). The rule does not permit a party to file duplicative, successive motions to dismiss under Rule 12(b)(6), as the City Defendants have done here, but instead permits a party to raise the defense of a failure to state a claim at one of three additional stages in the litigation: in any pleading allowed or ordered under Rule 7(a), in a Rule 12(c) motion for judgment on the pleadings, or at trial. See Fed. R. Civ. P. 12(h)(2)(C).
As the Third Circuit has explained, “[t]he procedural bar of Rule 12(g)(2) . . . covers all motions to dismiss for failure to state a claim, regardless of the grounds asserted.” Leyse v. Bank of Am. Nat’l Ass’n, 804 F.3d 316, 321 (3d Cir. 2015). A successive motion to dismiss filed under Rule 12(b)(6) is “plainly neither a Rule 7(a) pleading nor a motion raised a trial,” nor is it a Rule 12(c) motion. Id. at 320-21. As a
46

result, no exception to Rule 12(h)(2) covers a successive motion to dismiss, and it is “improper” for a district court to consider such a motion. Id. at 321.
Therefore, the Court will deny the City Defendants’ motion to dismiss Counts Four and Six of Plaintiffs’ Amended Complaint pursuant to Rule 12(g)(2). VII. CONCLUSION
For the foregoing reasons, the Court will deny the FJD Defendants’ motion to dismiss Plaintiffs’ Second Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Court will also deny the City Defendants’ Partial Motion to Dismiss Counts Four and Six of Plaintiffs’ Second Amended Complaint.
An appropriate order follows.
47

 
 Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 1 of 86
PLAINTIFFS’ UNCONTESTED MOTION AND MEMORANDUM IN SUPPORT OF PRELIMINARY APPROVAL OF CLASS CERTIFICATION AND CONSENT DECREE
ON THE COURTROOM CLAIMS
EXHIBIT A

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 2 of 86

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOS SOUROVELIS, DOILA WELCH, NORYS HERNANDEZ, and NASSIR GEIGER, on behalf of themselves and all others similarly situated,

Plaintiffs,

vs.
CITY OF PHILADELPHIA;
JAMES F. KENNEY, in his official capacity as Mayor of Philadelphia;
RICHARD ROSS JR., in his official capacity as Commissioner of the Philadelphia Police Department;
PHILADELPHIA DISTRICT ATTORNEY’S OFFICE;
LAWRENCE S. KRASNER, in his official capacity as District Attorney of Philadelphia;
SHEILA A. WOODS-SKIPPER, in her official capacity as Chair of the Administrative Governing Board of the First Judicial District of Pennsylvania;

Civil Action No. 2:14-cv-04687
Assigned to the Honorable Judge Robreno
Special Management Track
PROPOSED CONSENT DECREE ON PLAINTIFFS’ CLAIMS FOR INJUNCTIVE RELIEF
REGARDING THE COURTROOM CLAIMS (CLAIMS THREE, FOUR,
SIX, AND SEVEN)

JACQUELINE F. ALLEN, in her official capacity as a member of the Administrative Governing Board of the First Judicial District of Pennsylvania;

JOSEPH H. EVERS, in his official capacity as Court Administrator of the First Judicial District of Pennsylvania; and

CHARLES A. MAPP, in his official capacity as Chief Deputy Court Administrator of the First Judicial District of Pennsylvania;

Defendants.

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 3 of 86

Plaintiffs Christos Sourovelis, Doila Welch, Norys Hernandez, and Nassir Geiger

(“Named Plaintiffs”), on behalf of themselves and all others similarly situated (“Plaintiffs”);

Defendants City of Philadelphia, Mayor James F. Kenney, Police Commissioner Richard J. Ross

Jr. (“City Defendants”); the Philadelphia District Attorney’s Office and District Attorney

Lawrence S. Krasner (“District Attorney Defendants”); President Judge Sheila A. Woods-

Skipper, Judge Jacqueline F. Allen, Court Administrator Joseph H. Evers, and Chief Deputy

Court Administrator Charles A. Mapp of the First Judicial District (FJD) of Pennsylvania, in

their official capacities only, (collectively “FJD Defendants”) (all three sets of defendants

referred to collectively herein as “Defendants,” and all parties collectively referred to herein as

the “Parties”) intend to be bound by this proposed Consent Decree and respectfully submit it to

the Court for preliminary approval under Federal Rule of Civil Procedure 23(e).

I.

INTRODUCTION

1. On August 11, 2014, Named Plaintiffs Sourovelis, Welch, and Hernandez—

owners of real property against which civil-forfeiture petitions had been filed in the Court of

Common Pleas of Philadelphia County—commenced this class-action litigation challenging the

constitutionality of specific policies and practices of the City Defendants and District Attorney

Defendants in prosecuting civil-forfeiture cases. (ECF No. 1.)

2. On November 17, 2014, the Named Plaintiffs—now including Nassir Geiger, an

owner of personal properties against which civil-forfeiture petitions had been filed in the Court

of Common Pleas—filed a First Amended Class-Action Complaint. (ECF No. 40.)

3. On September 15, 2016, the Named Plaintiffs filed a Second Amended Class-

Action Complaint (“Second Amended Complaint”) adding the FJD Defendants and adding an

additional claim against all Defendants. (ECF No. 157.)

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4. This Consent Decree addresses the Third, Fourth, Sixth, and Seventh Claims for Relief in the Second Amended Complaint. Defendants dispute liability as to these claims for relief.
5. Plaintiffs’ Third Claim for Relief in the Second Amended Complaint alleges that City Defendants, District Attorney Defendants, and First Judicial District Defendants have a “policy and practice of seizing and restraining property and initiating and administering civilforfeiture proceedings, without providing property owners an opportunity for a prompt postdeprivation hearing” and that this policy and practice “violates the Due Process Clause of the Fourteenth Amendment because it fails to give property owners a chance to contest the basis for the deprivation at a meaningful time and in a meaningful manner.” (ECF No. 157, ¶¶ 323-26.)
6. Plaintiffs’ Fourth Claim for Relief in the Second Amended Complaint alleges that “Defendants have a policy and practice of relisting forfeiture actions, typically on a monthly basis, forcing members of the putative class to return to court for each listing in order to preserve their interest in the property, or else lose their property forever through a default judgment . . . [and] relisting forfeiture actions repeatedly until any underlying criminal case against anyone— including people other than the property’s owners—is resolved rather than staying the forfeiture proceeding for the pendency of the criminal action,” and that this policy and practice “violates the Due Process Clause of the Fourteenth Amendment because it imposes a high risk of erroneous deprivation of property,” insofar as “[t]he private interests affected by the ‘relisting’ procedure outweigh Defendants’ interest in maintaining the policy.” (ECF No. 157, ¶¶ 332-34.)
7. Plaintiffs’ Sixth Claim for Relief in the Second Amended Complaint alleges that “Defendants have a policy and practice of having prosecutors run the forfeiture proceedings, including but not limited to calling the cases, determining whether property owners are in
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Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 5 of 86
default, and assessing whether any evidence produced by property owners is sufficient,” and that this policy and practice “violates the Due Process Clause of the Fourteenth Amendment” insofar as said prosecutors, “with a direct and institutional financial interest in the outcome of the forfeiture proceedings, run those very same forfeiture proceedings.” (ECF No. 157, ¶¶ 348, 350.)
8. Plaintiffs’ Seventh Claim for Relief in the Second Amended Complaint alleges that “Defendants are jointly and severally responsible for how civil-forfeiture proceedings are conducted—including notices to property owners, the filing of forfeiture petitions, the timing for answering or otherwise responding to forfeiture petitions, access to court hearings, and other procedures involved in forfeiture proceedings” and that “[a]s a direct and proximate result of the Defendants’ actions, policies, and practices related to civil-forfeiture adjudication, the Named Plaintiffs and members of the putative class have suffered irreparable injury to their constitutional rights, including but not limited to being deprived of their property without meaningful notice or an opportunity to be heard.” (ECF No. 157, ¶¶ 355, 359.)
9. The Parties agree that those whose property has been seized by the City of Philadelphia should receive constitutionally sufficient process under the Due Process Clause of the Fourteenth Amendment concerning the opportunity for the property’s return, its forfeiture, and related proceedings.
10. The Parties recognize, and this Court, by entering this Consent Decree, finds that this Consent Decree has been negotiated by the Parties in good faith and that it is fair, reasonable, adequate, and in the public interest.
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Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 6 of 86
II. JURISDICTION AND VENUE 11. This Court has jurisdiction over this matter under 42 U.S.C. § 1983 and 28 U.S.C.
§§ 1331, 1343, 2201 and 2202. 12. Venue lies in this judicial district under 28 U.S.C. § 1391.
III. EFFECTIVE DATE 13. This Consent Decree shall take effect immediately on the date the Court enters an
order granting final approval of this Consent Decree under Federal Rule of Civil Procedure 23(e). Beginning on the Effective Date, this Consent Decree will become binding on the Parties, their agents, and their successors. IV. DEFINITIONS
In addition to terms identified and defined elsewhere in this Consent Decree, the following terms will have the following meanings, as used in this Consent Decree:
14. “Claimant” means any person who: (i) was in lawful possession of real or personal property at the time of seizure or restraint, or at the time a Forfeiture Petition against the property was filed, whichever occurred earlier; (ii) is the record title holder of the property subject to forfeiture; (iii) has been identified by the District Attorney’s Office as having an apparent legal or equitable interest in the property subject to forfeiture; or (iv) has asserted a legal or equitable interest in the property subject to forfeiture.
15. “Class Counsel” means the Institute for Justice and David Rudovsky of Kairys, Rudovsky, Messing, Feinberg & Lin LLP.
16. “Common Law Forfeiture” means a conviction-based, civil in personam forfeiture proceeding as defined in Commonwealth v. 2010 Buick Enclave, 99 A.3d 163 (Pa. Commw. Ct.
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Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 7 of 86
2014) that is commenced by the District Attorney’s Office, to the extent such proceedings are still recognized in Pennsylvania.
17. “Consent Decree” means this proposed Consent Decree regarding the Third, Fourth, Sixth, and Seventh Claims for Relief in Plaintiffs’ Second Amended Complaint.
18. “Controlled Substances Forfeiture Act” (“CSFA”) (newly retitled as “Forfeiture of Assets” in 2017) means 42 Pa. Cons. Stat. §§ 5801 et seq.
19. “Court” means the United States District Court for the Eastern District of Pennsylvania, or United States District Judge Eduardo C. Robreno.
20. “Court of Common Pleas” means the Court of Common Pleas of Philadelphia County, including the Office of Judicial Records and other subdivisions, also referred to as the “First Judicial District” (“FJD”).
21. “Default Proceeding” means any proceeding in the Court of Common Pleas in which the Commonwealth seeks a default order, including:
a. seeking judgment by default by complying with the provisions of Pa.R.C.P. No. 237.1;
b. by filing a motion for judgment on the pleading pursuant to Pa.R.C.P. No. 1034;
c. by filing a motion for summary judgment pursuant to Pa.R.C.P. No. 1035.2; d. by filing a motion for default order; or e. by filing any other appropriate motion. 22. “District Attorney” means Philadelphia District Attorney Lawrence S. Krasner and any official successors.
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23. “District Attorney’s Office” means the Office of the District Attorney of Philadelphia, all of its divisions, subdivisions, and all of its agents and employees.
24. “Effective Date” means the date the Court enters an order granting final approval of the Consent Decree under Federal Rule of Civil Procedure 23(e).
25. “Forfeiture Petition” means a petition commencing an action seeking Common Law Forfeiture or Statutory Forfeiture filed by the District Attorney’s Office in the Court of Common Pleas.
26. “General Court Regulation” or “GCR” means the First Judicial District of Pennsylvania’s Trial Division General Court Regulation, No. 01 of 2018 regarding Proceedings Seeking Civil Forfeiture of Real Estate and Seized Property, to be issued on or about August 31, 2018, and implemented within two (2) months of issuance, attached hereto as Attachment 1, and any subsequent amendments.
27. “Important Information” means information provided to Claimants, both orally and in writing, by a judge of the Court of Common Pleas, or a Trial Commissioner designated by a judge, at the Pretrial Conference—and on the First Judicial District’s website—regarding forfeiture and related proceedings, including Claimants’ rights and responsibilities, as described in General Court Regulation No. 01 of 2018. A copy of the Important Information written document is attached hereto as Attachment 2.
28. “Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings” is a motion by which a claimant may obtain a Prompt Post-Seizure Hearing regarding the interim return of seized property. A Claimant may file a “Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings” at any time after the seizure, including during the pendency of civil-forfeiture or return-of-property proceedings. A
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Prompt Post-Seizure Hearing will be scheduled for a date within ten (10) business days of the filing of the motion.
29. “Motion for Return of Property” means a motion for the return of property seized by Philadelphia Law Enforcement Officers filed pursuant to Pennsylvania Rule of Criminal Procedure 588.
30. “Notice of Pretrial Conference” means the notice scheduling a Pretrial Conference that is to be served by the Office of Judicial Records on the Claimant after the District Attorney’s Office files the proof of service of the Forfeiture Petition with the Court of Common Pleas, Office of Judicial Records. A sample Notice of Pretrial Conference is attached hereto as Attachment 3.
31. “Parties” means the Named Plaintiffs, any class of Plaintiffs certified by the Court for the purposes of this Consent Decree, the City Defendants, the District Attorney Defendants, and the FJD Defendants in Sourovelis v. City of Philadelphia, Civil Action No. 14-04687-ER (E.D. Pa.).
32. “Personal Property” means all property other than real property that is the subject of a Forfeiture Petition or a Motion for the Return of Property.
33. “Philadelphia Law Enforcement Officer” means any individual employed by the Philadelphia Police Department or the District Attorney’s Office authorized to seize property pursuant to his or her law-enforcement duties.
34. “Pretrial Conference” is the initial proceeding following the filing of a Forfeiture Petition or Motion for the Return of Property, unless a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings is filed prior to the Pretrial Conference. The Pretrial Conference will be scheduled for a date approximately thirty (30) days after the date
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of the filing of the proof of service of the Forfeiture Petition. The purpose of the Pretrial Conference is to: (i) provide Important Information to Claimants regarding the proceedings, including their rights and responsibilities; and (ii) resolve preliminary matters, schedule discovery, determine whether the proceedings may be resolved by agreement, address any pretrial issues, determine if there are any agreed upon factual issues, and schedule a date for trial, as set forth in GCR 01 of 2018.
35. “Prompt Post-Seizure Hearing” means an expedited, contested hearing regarding the interim return of property seized by Philadelphia Law Enforcement Officers. A Claimant whose property has been seized may obtain a Prompt Post-Seizure Hearing by filing a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings at any time after the seizure, including during the pendency of civil-forfeiture or return-of-property proceedings. A Prompt Post-Seizure Hearing will be scheduled for a date within ten (10) business days of the filing of the Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings.
36. “Service Packet” means the packet of documents to be served on a Claimant by the Commonwealth after a civil-forfeiture proceeding is initiated by the filing of a Forfeiture Petition. The Service Packet shall include:
a. the Forfeiture Petition, including the Notice to Defend (a sample Notice to Defend is attached hereto as Attachment 4);
b. a form Answer, attached hereto as Attachment 5; c. a form Praecipe to Stay Forfeiture Proceedings, attached hereto as
Attachment 6;
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d. a form Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings, attached hereto as Attachment 7;
e. the Important Information written document, attached hereto as Attachment 2; and
f. any other documents filed or entered in the forfeiture proceeding (including any ex parte orders, such as a lis pendens or temporary restraining order).
37. “Simple Drug Possession” means offenses such as those specified in 35 P.S. 780113(a)(16) & (31)(2018).
38. “Status Listing” means any proceeding scheduled by the Court of Common Pleas in a forfeiture or return-of-property case other than a Prompt Post-Seizure Hearing, Default Proceeding, Pretrial Conference, or Trial.
39. “Statutory Forfeiture” means a forfeiture proceeding commenced in the Court of Common Pleas pursuant to any statutory provision authorizing the forfeiture of property— principally, the Controlled Substances Forfeiture Act. Other Statutory Forfeiture provisions under Pennsylvania law include, but are not limited to: 4 Pa. Cons. Stat. § 1518(f) (Gaming Act); 18 Pa. Cons. Stat. § 910(c.1) (theft of telecommunications services); 18 Pa. Cons. Stat. § 2506(f) (drug delivery resulting in death); 18 Pa. Cons. Stat. § 3021 (human trafficking); 18 Pa. Cons. Stat. §§ 3141 et seq. (sexual offenses); 18 Pa. Cons. Stat. § 4116(i) (unauthorized copying of recorded materials); 18 Pa. Cons. Stat. § 4119(f) (trademark counterfeiting); 18 Pa. Cons. Stat. § 5554 (formerly § 5551) (cruelty to animals); 18 Pa. Cons. Stat. § 5513(b) (gambling devices); 18 Pa. Cons. Stat. § 5707 (Wiretapping and Electronic Surveillance Control Act); 18 Pa. Cons. Stat. § 6110.1(d) (possession of a firearm by minor); 18 Pa. Cons. Stat. § 6314(f) (trafficking drugs to minors); 18 Pa. Cons. Stat. § 6321(e) (transmission of sexually explicit images by
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minor); 18 Pa. Cons. Stat. § 6501(b)(5) (formerly, § 6501(b) and (d)) (scattering rubbish); 18 Pa. Cons. Stat. § 7508(e) (drug trafficking sentencing and penalties); 18 Pa. Cons. Stat. § 7707 (vehicle chop shop; illegally obtained and altered property); 27 Pa. Cons. Stat. § 6208(f) (waste transportation violation); 37 Pa. Cons. Stat. § 511 (conducting field investigation of Commonwealth property without permit); 18 Pa. Cons. Stat. § 2717(b.1) (formerly, 42 Pa. Cons. Stat. § 6801.1) (terrorism forfeiture); 75 Pa. Cons. Stat. § 4909(c) (transportation of foodstuffs in vehicles used to transport waste); 75 Pa. Cons. Stat. §§ 9405-06 (importing fuels without permit); 3 P.S. § 459-211(c)(1)(v), (d)(4) (Dog Law); 35 P.S. § 831.1 (forfeiture for storage or transportation of drugs); 35 P.S. §§ 6018.101 et seq. (Solid Waste Management Act); 43 P.S. §§ 1311 et seq. (Public Employee Pension Forfeiture Act); 47 P.S. § 6-602 (Liquor Code violation); 53 P.S. § 4000.1715 (Municipal Waste Act); 68 P.S. § 46 (restrictions on acquisition of agricultural lands by certain aliens); and 72 P.S. § 8285 (cigarette-tax violations).
40. “Trial” means a proceeding on the ultimate merits of a Forfeiture Petition or a Motion for the Return of Property.
41. “Trial Commissioners” are employees of the First Judicial District who, acting in a quasi-judicial capacity, hold the “Pretrial Conference” scheduled as authorized by General Court Regulation No. 01 of 2018. V. CLASS CERTIFICATION
42. Without waiver or concession of any of their respective positions regarding class certification as to other counts of Plaintiffs’ Second Amended Complaint, the Parties agree and propose that class certification of the following settlement classes are proper under Federal Rule of Civil Procedure 23(a) and 23(b)(2).
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43. For purposes of the Third, Fourth, and Seventh Claims for Relief in the Second Amended Complaint, the settlement class shall consist of:
All persons holding legal title to or otherwise having a legal interest in real or personal property:
(i) which was the subject of civil-forfeiture or return-of-property proceedings as of August 11, 2012; or
(ii) which had been seized on or after August 11, 2012; or (iii) which was or will be the subject of a forfeiture petition or a return-
of-property, or related proceeding in the Court of Common Pleas of Philadelphia County on or after August 11, 2012. 44. For purposes of the Sixth Claim for Relief in the Second Amended Complaint, the settlement class shall consist of: All persons receiving a notice directing them to appear in, or who appeared in, Courtroom 478 for forfeiture, return-of-property, or related proceedings from August 11, 2012 until January 6, 2016. VI. TERMS OF THE CONSENT DECREE The City Defendants and District Attorney Defendants agree to abide by the following procedures for all seizures and forfeiture proceedings initiated by them, including all civil forfeiture, criminal forfeiture (or other post-conviction forfeiture), and any other statutory forfeiture or Common Law Forfeiture authorized by Pennsylvania law now or in the future. The FJD Defendants agree to abide by all specific provisions in this Consent Decree referencing the “Parties” or the FJD. A. Reform of Policies and Practices Governing Seizures, Forfeitures, and Related Proceedings. 1. Seizure and Retention of Personal Property. a. Limitations on cash seizures. i. The City Defendants agree that Philadelphia Law Enforcement Officers will not seize cash amounts less than $1,000 unless the seizure is (1) incident to the
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arrest of the person in possession of the cash, or (2) for use as evidence in a potential criminal prosecution. Any cash seized solely for evidentiary purposes will promptly be evaluated for any evidentiary value. Once the cash is no longer needed for evidentiary purposes, the District Attorney’s Office will request a court order that the property be immediately returned to the lawful owner. If someone other than the property owner will likely be taking possession of the property, the District Attorney’s Office will request that the name(s) of the person taking possession of the property be on the court order. ii. Once the order requiring immediate return of the property is entered by the Court of Common Pleas, the District Attorney’s Office will then promptly provide this order to the City of Philadelphia at the Evidence Custodian Unit, in Room 715 of City Hall, and to the lawful owner or their attorney. Upon the City of Philadelphia’s receipt of this court order from the lawful owner or their representative at the Evidence Custodian Unit, in Room 715 of City Hall, the Philadelphia Police Department shall make the money available for pickup by the lawful owner, or the owner’s representative named in the court order, within three (3) business days of the receipt of the order, provided that at least ten (10) business days have passed since the property was seized. iii. The City Defendants agree that Philadelphia Law Enforcement Officers will not seize cash for forfeiture under the CSFA absent the presence of illicit drugs at the scene of seizure or other compelling evidence of illegal drug activity. If the seizure of cash is for forfeiture under another statute, then objective indicia of criminal activity must be present consistent with the law. The City Defendants
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agree that the mere presence of large amounts of cash ($1,000 or more) is not sufficient to constitute objective indicia of criminal activity. iv. The City Defendants agree that Philadelphia Law Enforcement Officers will only seize cash as abandoned property if it genuinely appears to be abandoned property based on earnest investigative efforts to determine the rightful owner. Any cash seized as abandoned property must be returned to the rightful owner if the rightful owner can be ascertained or comes forward with credible evidence of ownership within 365 days of the seizure. Any cash seized as abandoned property that is unclaimed after 365 days of the seizure shall be disposed of pursuant to Pennsylvania’s unclaimed property statute. b. Limitations on cash forfeitures. i. The District Attorney Defendants agree that they will not pursue forfeiture of cash in amounts less than $250. ii. The District Attorney Defendants agree that they will not pursue civil forfeiture of cash under the CSFA absent the presence of illicit drugs at the scene of the seizure or other compelling evidence of illegal drug activity. If the seizure of cash is for forfeiture under another statute, then objective indicia of criminal activity must be present. iii. The District Attorney Defendants agree that the mere presence of large amounts of cash ($250 or more) is not sufficient to constitute objective indicia of criminal activity.
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c. Limitations on seizures/forfeitures based on simple possession. The City Defendants agree not to seize property (other than per se contraband) for Simple Drug Possession and the District Attorney Defendants agree not to forfeit property for Simple Drug Possession. d. Property Receipts. The City Defendants agree that when Personal Property is seized from an individual by a Philadelphia Law Enforcement Officer, a Philadelphia Law Enforcement Officer will provide the individual from whom the property was seized a legible property receipt for each property seized accurately describing the property. The property receipt will contain an individualized receipt number and shall state that individuals may seek the interim or final return of property by filing a motion in the Court of Common Pleas and provide written instructions summarizing the procedures and timelines for return of property and forfeiture proceedings. The property receipt forms will be updated to reflect current procedures in the next printing of property receipt forms, and will conform to the sample property receipt instruction form provided in Attachment 8. e. Towing/Storage Fees. The City Defendants and District Attorney Defendants agree that:
i. Aside from vehicles, all personal property seized by Philadelphia Law Enforcement Officers will be stored and maintained by the Philadelphia Police Department or the Philadelphia District Attorney’s Office, and the City of Philadelphia will bear the costs of storage.
ii. All seized vehicles will be stored and maintained at an impound lot supervised by the Philadelphia District Attorney’s Office, the Philadelphia Police Department, or the Philadelphia Parking Authority.
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iii. No vehicle towing or storage fees will be charged to any Claimant who prevails in a return-of-property or forfeiture proceeding regarding a vehicle. For purposes of this Consent Decree, the Parties agree that the Claimant prevails in a return-of-property or forfeiture proceeding regarding a vehicle when the interim or final outcome of the proceeding is that the vehicle is returned to the Claimant.
iv. If the Claimant prevails, the District Attorney Defendants agree to submit to the Court of Common Pleas an order directing waiver of all towing and storage fees, in addition to the immediate return of the vehicle. If someone other than the vehicle owner will take possession of the vehicle, the name of that individual shall be in the order, which shall also state that the person picking up the vehicle must bring a driver’s license and must bring the vehicle registration, proof of insurance, and vehicle title (or those documents must be in the vehicle itself) in order to take possession of the vehicle. Once the order requiring immediate return of the property is entered by the Court of Common Pleas, the District Attorney’s Office will then promptly provide this order to the City of Philadelphia at the Police Department Impound Lot, 7992 Penrose Ferry Road, Philadelphia, Pennsylvania, and to the lawful owner or their attorney. Upon the City of Philadelphia’s receipt of this court order from the lawful owner or the representative named in the court order at the Police Department Impound Lot, the Philadelphia Police Department shall immediately return the property to the lawful owner or their representative without seeking towing or storage fees, provided that the person taking possession of the vehicle has a driver’s license,
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proof of insurance for the vehicle, and the vehicle’s title and registration (or those documents are in the vehicle itself). v. The City of Philadelphia will bear any costs of towing and storage for vehicles that are forfeited. 2. Commencement of Forfeiture Proceedings and Service of Process. a. Identifying Potential Claimants. The City Defendants and the District Attorney Defendants agree that prior to the filing of a Forfeiture Petition, the District Attorney’s Office, with the reasonable cooperation of the City Defendants, will take all reasonable steps to identify potential Claimants of any real or personal property subject to forfeiture, including by reviewing property receipts and searching public records, as may be appropriate, such as the records of public utility companies, the Department of Motor Vehicles, and/or the PhilaDox property database. b. Filing of Forfeiture Petitions. The Parties agree that Statutory Forfeiture proceedings will be commenced by the District Attorney’s Office upon the filing of a Forfeiture Petition in the Court of Common Pleas in the manner prescribed by the applicable statute and the General Court Regulation. i. The District Attorney Defendants agree that the District Attorney’s Office shall file any Forfeiture Petition within 90 days of the date of the seizure absent exceptional circumstances, such as where an ongoing criminal investigation would be compromised by the filing of a Forfeiture Petition or if the Court of Common Pleas is unexpectedly closed on the date of the filing deadline. The District Attorney Defendants agree that exceptional circumstances shall not
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include typical delays incurred due to staffing shortages or other circumstances regularly encountered in the processing and filing of Forfeiture Petitions. ii. The District Attorney Defendants agree that the District Attorney’s Office shall withdraw and not refile any Forfeiture Petition filed more than 90 days after the seizure, absent exceptional circumstances (as described above). In such circumstances, the City Defendants and District Attorney Defendants agree that, unless the continued detention of the property in question is actually necessary for evidentiary purposes in an active criminal case, the District Attorney’s Office will request a court order that the property be immediately returned to the lawful owner. If someone other than the owner is likely to take possession of the property, the name(s) of such person(s) shall be in the court order. Once the order requiring immediate return of the property is entered by the Court of Common Pleas, the District Attorney’s Office will then promptly provide this court order to the City of Philadelphia at the Evidence Custodian Unit, in Room 715 of City Hall, and to the lawful owner or their attorney. Upon the City of Philadelphia’s receipt of this court order from the lawful owner or their representative at the Evidence Custodian Unit, in Room 715 of City Hall (or, for vehicles only: 7992 Penrose Ferry Road, Philadelphia, PA 19153), the Philadelphia Police Department shall immediately return the property to the lawful owner or their representative named in the court order. Money and vehicles shall be made available to property owners or their representatives to take possession of in accordance with the procedures outlined above in Subparts VI.A(1)(a)(ii) and VI.A(1)(e)(iv), while other Personal Property shall be made
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available within seven (7) business days of the Evidence Custodian Unit’s proper receipt of the order. iii. The Parties agree that the first page of the Forfeiture Petition shall be the Notice to Defend, as described in the General Court Regulation. See Attachment 4. c. Service of Process and Notice to Defense Counsel. i. The District Attorney Defendants agree that, upon the acceptance of the Forfeiture Petition for filing, the District Attorney’s Office shall make all reasonable efforts to effect service of the Service Packet on any Claimant it has identified within seven (7) days of the filing of the Forfeiture Petition, and in any event, shall effect service no more than forty-five (45) days after the filing of the Forfeiture Petition. ii. The City Defendants and District Attorney Defendants agree that the Service Packet shall include:
a. the Forfeiture Petition,including the Notice to Defend (a sample Notice to Defend is attached hereto as Attachment 4);
b. a form Answer, attached hereto as Attachment 5; c. a form Praecipe to Stay Forfeiture Proceedings, attached hereto as
Attachment 6; d. a form Motion for Release of Seized Property Pending the Conclusion of
the Forfeiture Proceedings, attached hereto as Attachment 7; e. the Important Information written document, attached hereto as
Attachment 2; and
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f. any other documents filed or entered in the forfeiture proceeding (including any ex parte orders, such as a lis pendens or temporary restraining order).
iii. The District Attorney Defendants agree that they shall attempt to serve the Service Packet on any Claimant the District Attorney’s Office has identified, using the normal procedures for service of process under the Pennsylvania Rules of Civil Procedure, subject to the following modifications: a. For all Claimants residing within the City of Philadelphia, personal service shall be attempted twice as the primary method of service. If personal service is unsuccessful both times, Claimants residing within the City of Philadelphia shall be served by certified mail. b. For all Claimants residing outside the City of Philadelphia, service shall be attempted first by certified mail. c. If the owner of the property is unknown, there was no person in possession of the property when seized, or the owner or each person in possession at the time of the seizure cannot be personally served or located within the jurisdiction of the Court of Common Pleas, the District Attorney Defendants may follow the procedure for substitute service set forth in 42 Pa.C.S. § 5805(c).
iv. The District Attorney’s Office shall promptly file proof of service of the Forfeiture Petition with the Court of Common Pleas, Office of Judicial Records. In the event the Claimant was served at an address other than that stated in the Forfeiture Petition, or if the Claimant’s address for subsequent service of legal
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papers other than original process, pursuant to Pa.R.C.P. No. 440, is different than that stated in the Forfeiture Petition, the District Attorney’s Office shall file a praecipe with the Office of Judicial Records providing the address to which papers may be served on the Claimant. v. Upon accepting the proof of service of the Forfeiture Petition for filing, the Office of Judicial Records shall schedule a Pretrial Conference for a date within thirty (30) days after the date of the filing of the proof of service of the Forfeiture Petition, and shall issue and serve a Notice of Pretrial Conference on the District Attorney’s Office and on the Claimants at the addresses provided by the District Attorney’s Office, directing Claimants’ appearance at the Pretrial Conference. This notice shall also provide that a Claimant may file a Praecipe to Stay Forfeiture Proceedings, and/or a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings. If the Notice of Pretrial Conference is returned by the Postal Service, the Office of Judicial Records shall so note on the docket of the case. The District Attorney’s Office may provide to the Office of Judicial Records an alternate address for service by filing an appropriate praecipe, or may request that the Pretrial Conference be rescheduled and attempt to serve the Claimant again. vi. The District Attorney’s Office shall make all reasonable efforts to provide timely notice—including providing the Service Packet and the Notice of Pretrial Conference—to criminal defense counsel for a Claimant in an associated criminal case.
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d. Service by Claimants Upon the District Attorney’s Office. The District Attorney’s Defendants agree to accept service of all answers, motions, praecipes, and any other pleadings or filings, upon filing of the document(s) with the Court of Common Pleas, Office of Judicial Records. e. Common Law Forfeiture Proceedings. The District Attorney Defendants agree that:
i. To the extent Common Law Forfeiture proceedings continue to exist after the Pennsylvania Supreme Court’s decision in Commonwealth v. Irland (No. 32, MAP 2017), Common Law Forfeiture will be limited solely to forfeiture of firearms and other dangerous weapons, explosives, and per se contraband.
ii. Any Common Law Forfeiture proceedings shall be commenced by the District Attorney’s Office against a criminal defendant upon the filing of a petition, in the manner prescribed by Pennsylvania common law, alleging that property with a substantial nexus to the underlying crime is subject to Common Law Forfeiture.
iii. As of July 15, 2015, the District Attorney’s Office no longer seeks default judgments or requires Answers to Forfeiture Petitions in Common Law Forfeiture cases prior to termination of the underlying criminal case and will continue not to do so now and in the future.
iv. Common Law Forfeiture petitions may be filed at any time authorized under Pennsylvania law, but the District Attorney’s Office shall request at the Pretrial Conference that such cases be “Continued until Further Notice” during the pendency of the underlying criminal case.
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v. When the underlying criminal case is complete, the District Attorney’s Office will file a Praecipe to Lift the Stay, and the Office of Judicial Records will schedule a status conference as provided for in the GCR.
vi. The stay shall remain in effect until the earlier of: a. the issuance of a sentencing order, which is deemed to be the conclusion of the criminal proceedings for purposes of the forfeiture proceeding (at that time, the Commonwealth must file a Praecipe to Lift the Stay with the Office of Judicial Records and a status conference will be scheduled); or b. the filing of a Praecipe to Lift the Stay by the Claimant.
vii. At that Pretrial Conference or Status Listing, if the underlying criminal case did not result in a conviction, the District Attorney’s Office shall submit a Consent Motion for Voluntary Dismissal, requesting a judicial order directing that the property immediately be returned to the lawful owner. If someone other than the owner of the property will be taking possession of the property, the District Attorney’s Office shall request that the name of that person be in the court order. Once the order requiring immediate return of the property is entered by the Court of Common Pleas, the District Attorney’s Office will then promptly provide this court order to the City of Philadelphia at the Evidence Custodian Unit, in Room 715 of City Hall, unless the property is a vehicle, in which case the order will be sent to the Police Department Impound Lot and to the lawful owner or their attorney. Upon the City of Philadelphia’s receipt of this court order from the lawful owner or their representative at the Evidence Custodian Unit, in Room 715 of City Hall (or, for vehicles only: 7992 Penrose Ferry Road,
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Philadelphia, PA 19153), the Philadelphia Police Department shall immediately return the property to the lawful owner or their representative if possible, but in no case shall the Philadelphia Police Department take more than seven (7) days to make the property available to the lawful owner or their representative. 3. The Pretrial Conference. The Parties agree that the manner in which the First Judicial District will conduct the Pretrial Conference as set forth in GCR 01 of 2018, which includes the following process: a. Timing. The Office of Judicial Records shall schedule a Pretrial Conference for a date within thirty (30) days from the date the Petition is served on the owner(s) or person(s) in possession at the time of the seizure of the property. The Pretrial Conference shall be scheduled and the Notice of Pretrial Conference shall be mailed within three (3) business days of the filing of proof of service of the Forfeiture Petition by the District Attorney’s Office. If the Claimant receives the Notice of Pretrial Conference less than fourteen (14) days before the hearing date, and if the Claimant is unable to attend the hearing, the Claimant may request that the Commonwealth ask the Court to continue the hearing to enable the Claimant to attend the rescheduled Pretrial Conference. b. Procedures: i. A judge of the Court of Common Pleas, or a Trial Commissioner designated by a judge, shall preside over all Pretrial Conferences in the courtroom designated by the First Judicial District, assisted by attendant courtroom staff. ii. A court reporter or digital recording technology shall record all proceedings and, upon submission of an application and any associated fee, pursuant to
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Pa.R.J.A. No. 4001 et seq., and Phila.R.J.A. No. 4007 et seq., any Claimant or interested party shall be entitled to order a recording or transcript of any such proceeding, unless such recordings and transcripts are sealed by court order. iii. Separate counsel tables shall be provided for the District Attorney’s Office and any Claimants in the courtroom designated by the First Judicial District for such proceedings. c. Courtroom staff in the courtroom designated by the First Judicial District for forfeiture and return-of-property proceedings shall direct Claimants to check in upon their arrival. d. Prior to providing Important Information about the forfeiture proceedings, courtroom staff shall attempt to identify any Claimants who are Limited English Proficient (those who do not speak English as their primary language and who may have a limited ability to read, speak, write, or understand English, see 42 Pa. Cons. Stat. § 4402) and shall provide interpretation and translation in accordance with the Language Access Plan of the Unified Judicial System of Pennsylvania (see pacourts.us/assets/files/setting-5486/file-5972.pdf?cb=11e5cd). e. A judge, or a Trial Commissioner designated by a judge, shall provide, both orally and in writing, Important Information to all Claimants about forfeiture proceedings. The written version is attached hereto as Attachment 2; the oral version shall be substantially similar and shall include the following topics: i. Claimants’ right and responsibility to contest a Forfeiture Petition by filing an Answer within 30 days of service, in court at the Pretrial Conference (if more than 30 days have elapsed), or at a subsequent time requested by the Claimant
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and agreed upon by the Commonwealth. A simple form Answer to the Forfeiture Petition will be made available by the Commonwealth to any Claimant in the Service Packet and at the Pretrial Conference, and the Court of Common Pleas will accept any completed Answer for filing; ii. Claimants’ failure to file an Answer to a Forfeiture Petition within thirty (30) days, at the Pretrial Conference, or at any subsequent time agreed upon by the parties, may result in Default Proceedings upon request of the Commonwealth; iii. Claimants’ right to seek the interim return of property at issue by filing a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings, simple form copies of which will be made available by the Commonwealth in the courtroom designated for forfeiture proceedings by the First Judicial District; iv. Claimants’ right to stay forfeiture proceedings, if they are also criminal defendants in a criminal proceeding related to the forfeiture proceeding, by filing a Praecipe to Stay Forfeiture Proceedings, simple form copies of which will be made available by the Commonwealth in the courtroom designated for forfeiture proceedings by the First Judicial District; v. Claimants’ right to retain counsel of their choosing, and that an information sheet containing a list of pro bono or low-cost legal resources shall be provided to them by the Commonwealth, upon request; vi. Claimants’ right to propound discovery and their responsibility to respond to discovery propounded by the Commonwealth;
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vii. Claimants’ right to demand a jury trial (Claimants shall be informed that in order to obtain a jury trial they must file a written request for a jury trial no later than twenty (20) days after the service of the last permissible pleading, and shall also be informed of any applicable filing fees or foreseeable delays in resolution of their case resulting from demanding a jury trial.); and
viii. Claimants’ right to seek settlement of the forfeiture proceeding and to engage in settlement negotiations with the Commonwealth.
f. The First Judicial District shall post the Important Information about the forfeiture proceedings, attached hereto as Attachment 2, on the “Forms” section of the FJD website.
g. The District Attorney Defendants shall advise Claimants of: (i) their Fifth Amendment rights against self-incrimination; (ii) how Claimants can avoid waiving those rights by filing a Praecipe to Stay Forfeiture Proceedings if they are criminal defendants in a related criminal proceeding; (iii) applicable burdens for forfeiting property under 42 Pa. Cons. Stat. § 5805(j) or any other governing statutes; and (iv) their ability to allege that they did not have knowledge of or consent to the unlawful activity under 42 Pa. Cons. Stat. § 5805(j)(4) or raise an innocent-owner defense under any other governing statute.
h. After the initial advisement regarding Important Information, courtroom staff shall call each case on the docket for the Pretrial Conference and note for the record the identity of any Claimants appearing, either in person or through an attorney, as well as the absence of any Claimants.
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i. In each case, the judge or Trial Commissioner shall address the issues set forth in GCR 01 of 2018, including: (i) whether service of the Forfeiture Petition (and related documents) complied with applicable law and the terms of this Consent Decree; (ii) whether an answer was filed; (iii) whether the Claimant is represented by counsel; (iv) whether the Claimant has filed a Praecipe to Stay Forfeiture Proceedings, Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings, or Motion for Return of Property; (v) whether the Claimant requests a jury trial; and (vi) whether any settlement is adequate.
j. If an Answer has not been filed by the Pretrial Conference and the Claimant appears at the Pretrial Conference, the Claimant may file an Answer or other Motions with the Office of Judicial Records, even if more than thirty (30) days have passed. The District Attorney Defendants agree not to oppose any reasonable request at the Pretrial Conference by a Claimant for additional time to conduct discovery or prepare for trial.
k. If a Claimant elects not to file an Answer by the date of the Pretrial Conference, or elects not to accept the Commonwealth’s discovery at the Pretrial Conference, the case will typically be scheduled for a Status Listing approximately thirty (30) days from the date of the Pretrial Conference to determine the status of pleadings, the status of discovery, and to schedule further proceedings, as appropriate. The District Attorney Defendants agree not to oppose any reasonable continuance of the Pretrial Conference to permit the Claimant to file an answer after further review, with an attorney or otherwise. The District Attorney Defendants also agree not to oppose any
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reasonable request by a Claimant for additional time to conduct discovery or prepare for trial. l. If a Claimant files a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings at the Pretrial Conference, the case shall be scheduled for a Prompt Post-Seizure Hearing before a judge within ten (10) business days of the filing of the motion, as set forth in GCR 01 of 2018. m. All motions for entry of judgment by default, judgment on the pleadings under Pa. R.C.P. No. 1034, and summary judgment under Pa. R.C.P. 1035.1 et seq., and any other dispositive motions shall be filed with the Office of Judicial Records, and shall be assigned to a judge for disposition, as set forth in GCR 01 of 2018. n. Trial Commissioners may not take any dispositive action with respect to forfeiture, return-of-property, or related proceedings. 4. Status Listings. The Parties agree that, for reasons other than a continuation of the Pretrial Conference, a judge of the Court of Common Pleas shall preside over any Status Listing, which may be scheduled upon the request of either party for various purposes, including, but not limited to, litigating a discovery or sanctions motion or seeking approval of a settlement agreement. 5. Proceedings on Motions for Prompt Post-Seizure Hearings. a. The Parties agree that a Claimant may file a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings with the Office of Judicial Records at any time after his or her property is seized, including during the pendency of civil-forfeiture or return-of-property proceedings, as set forth in GCR 01 of 2018.
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b. The FJD Defendants agree that the First Judicial District shall schedule a Prompt Post-Seizure Hearing to be held no later than ten (10) business days of the filing of a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings.
c. The FJD Defendants agree that a judge must preside over a Prompt Post-Seizure Hearing.
d. The FJD Defendants agree to publish a form Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings, attached hereto as Attachment 7, on the First Judicial District’s website. In addition, the FJD Defendants agree to provide this form to the District Attorney Defendants, who agree to provide it in every Service Packet issued to Claimants.
e. The City Defendants and District Attorney Defendants agree that post-seizure hearings concerning real property must satisfy 42 Pa. Const. § 5803(b.1).
f. The Parties agree that the procedures for adjudicating Motions for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings, including Prompt Post-Seizure Hearings, must comply with the Due Process Clause in the U.S. Constitution.
6. Continuances/Extensions to File Answer, Obtain Counsel, Prepare Case, Etc. a. Liberal Leave to File Answers/Motions. The Parties agree that Claimants may file their Answer and/or other Motions on the day of the Pretrial Conference even if more than thirty (30) days have elapsed since the service of the Forfeiture Petition and the other documents in the Service Packet. The City Defendants and District Attorney Defendants agree that there shall be liberal leave for Claimants to file Answers and/or
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other motions in these proceedings and that if a Claimant does not file an Answer at the Pretrial Conference, the District Attorney Defendants will request that the case be scheduled for a Status Listing for a date approximately thirty (30) days after the Pretrial Conference to determine the status of pleadings and discovery, and that the Claimant be permitted to file an Answer at or prior to that Status Listing. b. Two Continuances Upon Request to the District Attorney’s Office. The District Attorney Defendants agree to provide at least two “upon-request” continuances in any forfeiture proceeding, as described herein. The District Attorney Defendants agree that if a Claimant is unable to attend a Pretrial Conference or Status Listing, the Claimant may notify the District Attorney’s Office by phone or email prior to the hearing, or by sending a designee to notify a representative of the District Attorney’s Office at or before the scheduled hearing. i. Upon such notification, the District Attorney’s Office shall file for a
continuance, shall notify the Claimant of the new hearing date, and shall not pursue default proceedings. The District Attorney Defendants agree that they will provide, in the Service Packet, the phone number and email address that Claimants should contact, along with brief instructions as to how Claimants should provide notice to the District Attorney’s Office of their inability to attend a hearing. c. One Automatic “Free Pass” Continuance. In addition to any “upon-request” continuances as described above, the District Attorney Defendants agree that the first time a Claimant fails to appear for a Pretrial Conference or Status Listing in a civilforfeiture proceeding without providing notice to the District Attorney’s Office before
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or at that hearing, the District Attorney’s Office will automatically file for a continuance, notify the Claimant of the new hearing date, and will not pursue default proceedings. If a Claimant fails to appear for a second hearing in a civil-forfeiture case without providing any notice to the District Attorney’s Office before or at that hearing, the District Attorney’s Office may elect to proceed with default proceedings, but is not required to do so, and may instead exercise discretion to file for another continuance and notify the Claimant of the new hearing date without seeking default. d. Continuances Sought by District Attorney’s Office Are Cumulative. The District Attorney Defendants agree that the one automatic “free pass” continuance is in addition to any “upon-request continuances” for which the Claimant notifies the District Attorney’s Office they are unable to attend the hearing at or before the hearing, as described above. Thus, the District Attorney’s Office will seek up to three continuances for a Claimant—two “upon request” continuances and one automatic “free pass” continuance—in a forfeiture proceeding, and a Claimant may also be entitled to other continuances based on reasonable requests, as described below. e. No Opposition to Claimant’s Reasonable Requests for Continuance. The District Attorney Defendants agree to not oppose: (i) any reasonable continuance of the Pretrial Conference to permit the Claimant to file an Answer; (ii) any reasonable request for continuance to obtain counsel or prepare their case (including for the continuance of a prompt, post-seizure hearing); or (iii) any reasonable request for additional time to conduct discovery or prepare for trial.
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7. Stays for Pending Related Criminal Proceedings. a. The Parties agree that when there is a related criminal proceeding pending, the Claimant may file a Praecipe to Stay Forfeiture Proceedings to obtain a stay of forfeiture proceedings at any time after the initiation of forfeiture proceedings, as set forth in GCR 01 of 2018. b. The District Attorney Defendants agree that the District Attorney’s Office will not oppose a Claimant’s Praecipe to Stay Forfeiture Proceedings or a Claimant’s request for a continuance until further notice when there is a related criminal case pending, regardless of whether an Answer has been filed in the forfeiture proceeding. c. The District Attorney Defendants agree that once an Answer has been filed in a forfeiture proceeding, the District Attorney’s Office will request that all forfeiture cases with a pending criminal case related to the property at issue be “Continued until Further Notice” during the pendency of the related criminal case. d. The District Attorney Defendants agree that an Answer filed in a civil-forfeiture proceeding will not be used as evidence against a defendant in any criminal proceeding, nor will anything presented in a Prompt Post-Seizure Hearing during the pendency of a criminal proceeding be used as evidence against a defendant in any criminal proceeding. e. A Claimant may file a form Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings at any time in a forfeiture proceeding, even after a case has been stayed or continued until further notice due to pending related criminal proceedings, and still obtain a Prompt Post-Seizure Hearing, as set forth in GCR 01 of 2018.
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f. When the underlying criminal case is complete, the District Attorney’s Office shall file a Praecipe to Lift the Stay, and the Office of Judicial Records shall schedule a status conference as provided for in the GCR.
g. The stay shall remain in effect until the earlier of: i. the issuance of a sentencing order, which is deemed to be the conclusion of the criminal proceedings for purposes of the asset forfeiture proceeding (at that time,the Commonwealth must file a Praecipe to Lift the Stay with the Office of Judicial Records and a status conference will be scheduled); or ii. the filing of a Praecipe to Lift the Stay by the Claimant.
8. Default Proceedings a. The District Attorney Defendants agree to pursue default only through a motion for judgment on the pleadings (currently Rule 1034) or a motion for summary judgment (currently Rule 1035.2), both of which require judicial approval under the respective standards for each motion. b. Accordingly, the Parties agree that the following procedures will be followed for Default Proceedings, as set forth in GCR 01 of 2018: i. The Parties agree that hearings on a Default Proceeding shall occur before a judge of the Court of Common Pleas. ii. Upon the calling of the case, the Commonwealth shall demonstrate, by a preponderance of the evidence, that: a. the Forfeiture Petition (including the Notice to Defend) and Notice of Pretrial Conference were served upon the Claimant, in accordance with the substantive law authorizing the forfeiture;
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b. the Notice of Pretrial Conference advised the Claimant that a failure to appear may result in the entry of a default order and loss of the subject property;
c. the Claimant, or any attorney for the Claimant, failed to appear at the Pretrial Conference or other hearing in the case (absent a continuance), and/or failed to file an Answer in a timely manner (unless the Claimant’s forfeiture case was stayed or the proceedings were continued for the various reasons discussed in this Consent Decree);
d. a notice of the Default Proceeding and the supporting motion (and any supporting documents) were provided to the Claimant; and
e. the proceeding shall satisfy any other applicable legal standard(s) that apply to the particular motion filed by the Commonwealth, consistent with the Pennsylvania Rules of Civil Procedure.
iii. If the Claimant, or an attorney for the Claimant, appears at the Default Proceeding, the hearing shall be treated as a Pretrial Conference or Status Listing.
iv. If the judge enters a default order of forfeiture, a copy of the order shall be provided to any Claimant by the Commonwealth, along with notice advising of the procedure for moving to vacate the default order.
v. If the judge declines to enter a default order, the case shall be scheduled for a Pretrial Conference or Status Listing, as appropriate.
9. Settlement of Forfeiture Action. The Parties agree that, as set forth in GCR 01 of 2018:
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a. Upon entering a settlement agreement, the forfeiture proceeding (or proceeding related to a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings) shall be referred to a judge of the Court of Common Pleas for approval of the settlement as set forth in GCR 01 of 2018. The Court of Common Pleas judge shall review the proposed written agreement and, if satisfied, enter an order approving the settlement and directing the return of property, if appropriate. Return-of-property proceedings will also be referred to a judge of the Court of Common Pleas for approval of the settlement.
b. In order to approve the settlement, the judge must be satisfied that the Claimant is entering into the agreement knowingly, voluntarily, intelligently, and that the Claimant understands that he/she is entitled to a hearing on the merits, along with other factors that may be required by law. i. Any settlement agreement executed by the District Attorney’s Office shall conform to the requirements set forth in the prior settlement agreement between the Plaintiffs, City Defendants, and District Attorney Defendants for Plaintiffs’ First and Second Claims for Relief, which received final approval by the Court on November 4, 2015. (ECF No. 104.)
10. Trial & Burdens of Proof. a. Trial. The Parties agree that a judge of the Court of Common Pleas shall preside over any trial in a forfeiture proceeding, which shall be conducted in accordance with the Pennsylvania Rules of Evidence, as well as the substantive law authorizing the underlying forfeiture, as set forth in GCR 01 of 2018. Any trial in a forfeiture proceeding (or proceeding related to a Motion for Release of Seized Property Pending
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the Conclusion of the Forfeiture Proceedings) shall also be conducted in accordance with the Pennsylvania Rules of Civil Procedure. b. Burdens of Proof. i. The City Defendants and District Attorney Defendants agree that the burdens of
proof specified in 42 Pa.C.S. § 5805(j) apply to civil-forfeiture proceedings unless another, more specific statute sets forth the applicable burdens of proof. ii. The District Attorney Defendants further agree that the government’s burden of proof must comport with constitutional due process. iii. The District Attorney Defendants further agree that requiring a property owner to affirmatively prove his or her own innocence violates due process, and thus the District Attorney’s Office shall bear the burden of proving actual knowledge of, and consent to, criminal activity. 11. Conflict Between Consent Decree & Trial Division General Court Regulation No. 01 of 2018. The Parties agree that if there is a discrepancy between the provisions of Trial Division General Court Regulation No. 01 of 2018 (without amendments) and those recited in this Consent Decree relating to the procedures the FJD is to follow in administering forfeiture proceedings, the terms of Trial Division General Court Regulation No. 01 of 2018 prevail. Any amendments to the General Court Regulation No. 01 of 2018 and any future court regulations regarding forfeiture, return-of-property, or related proceedings must conform to the terms of this Consent Decree, unless such terms are contradicted by statute, case law, or state court rule that are binding on the First Judicial District.
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B. Monitoring Compliance and District Attorney Defendants’ Reporting Obligations. For purposes of monitoring compliance with the anticipated procedure set forth in this
Consent Decree, the District Attorney Defendants agree that, for a period of twelve (12) months after the Effective Date, the District Attorney Defendants will provide monthly compliance reports producing the information set forth in APPENDIX 1: Monthly Compliance Reporting, including certifications to Plaintiffs on the following topics:
1. The District Attorney Defendants will provide reports and certification to Plaintiffs, on a monthly basis, that the District Attorney Defendants are in compliance with: a. Part A.1.b of Section VI (limitations on cash forfeitures) b. Part A.1.c of Section VI (limitations on seizures/forfeitures based on simple possession) c. Part A.1.e of Section VI (towing/storage fees) d. Part A.2 of Section VI (commencement of forfeiture proceedings and service of process) e. Part A.3.f of Section VI (advisement of self-incrimination rights and burdens in forfeiture cases) f. Part A.6 of Section VI (continuances) g. Part A.7 of Section VI (stays for pending, related criminal proceedings) h. Part A.8 of Section VI (default proceedings) i. Part A.9 of Section VI (settlement of forfeiture action) j. Part A.10 of Section VI (trial and burdens of proof)
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2. The District Attorney Defendants, in consultation with the City Defendants and/or the FJD Defendants, will provide reports to Plaintiffs, on a monthly basis, regarding the City Defendants’ and FJD Defendants’ compliance with: a. City Defendants i. Part A.1.a of Section VI (limitations on cash seizures) ii. Part A.1.d of Section VI (property receipts) iii. Part A.1.e of Section VI (towing/storage fees) iv. Part A.2.a of Section VI (identifying potential claimants) b. FJD Defendants i. Part A.3 of Section VI (pretrial conferences) ii. Part A.4 of Section VI (status listings) iii. Part A.5 of Section VI (prompt post-seizure hearings) iv. Part A.6.a of Section VI (Claimants’ ability to file Answer/motions at Pretrial Conference even if more than thirty (30) days have elapsed) v. Part A.7.a of Section VI (stays for pending, related criminal proceedings) vi. Part A.8.b of Section VI (default proceedings) vii. Part A.9 of Section VI (settlement of forfeiture action) viii. Part A.10 of Section VI (trial and burdens of proof)
3. The Parties acknowledge that circumstances may arise in which the above certifications or reports cannot be made due to failure to comply with the substantive requirements of Section VI, human error, or forces beyond the control of the District Attorney Defendants to timely file certifications or reports. For each such occasion, the District Attorney Defendants will provide to Plaintiffs, on a monthly basis:
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a. A detailed description of any noncompliance, the reasons for noncompliance (if known), and documentation sufficient to permit Plaintiffs to conduct further investigation, if necessary;
b. A detailed description of any steps taken to remedy the circumstances resulting in the failure to comply, along with supporting documentation; and
c. Identification of all reasonable steps taken to ensure that such circumstances will be remedied going forward, as well as the belated certifications or reports themselves.
4. The District Attorney Defendants will further provide to Plaintiffs, on a monthly basis (covering any case in which any of the following activity occurred), a rolling summary of cases in which a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings has been filed. The rolling summary shall include the case caption, docket number, date of seizure, the date the case was initiated, the date the Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings was filed, the date(s) on which the Prompt Post-Seizure Hearing was scheduled and/or held, the disposition of the motion, and, for Claimants who prevailed, the actual date the property was released to the Claimant or his/her representative.
5. The District Attorney Defendants will further provide to Plaintiffs, within a reasonable time of Plaintiffs’ request, any and all case documents, including any digital copies, of all recordings made of all proceedings related to a specific forfeiture case. Plaintiffs will bear any reasonable and necessary costs associated with such a request.
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C. Substantial Noncompliance and Enforcement Procedures. The Court will retain oversight over Section VI of this Consent Decree for eighteen (18)
months after the Effective Date through the following enforcement procedures. Thereafter, the provisions of Section VI shall expire without further action by the Parties.
If Plaintiffs believe there has been substantial noncompliance with any material provision of Section VI of this Consent Decree, the Parties agree to the following procedure to resolve any dispute arising under Section VI:
1. A claim of substantial noncompliance can be made on the ground that any of the Defendants failed to materially comply with their obligations under Section VI of this Consent Decree, including the monitoring and reporting requirements in Part B above.
2. Plaintiffs will confer with the defendant in question over any claim of substantial noncompliance and the Parties will attempt to resolve any such claim in good faith.
3. If the Parties are unable to resolve any claim of substantial noncompliance through this initial conference, Plaintiffs will submit a written Notice of Substantial Noncompliance to all Defendants, specifying their basis for believing there has been substantial noncompliance.
4. Any of the Defendants may respond, in writing, to any such Notice of Substantial Noncompliance within thirty (30) days.
5. Within fourteen (14) days after Defendants’ service of their written responses on Plaintiffs, the Parties will again meet and confer to attempt to resolve the dispute in good faith without seeking court intervention.
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6. In the event the Parties are unable to resolve the dispute, any party may petition the Court to order specific performance of Section VI of this Consent Decree.
7. The prevailing party on a claim of substantial noncompliance may petition the Court to extend the monitoring period and may seek an award of reasonable attorneys’ fees and costs associated with drafting and litigating the Notice of Substantial Noncompliance against the noncomplying party, unless the Court finds that the claim of substantial noncompliance, although unsuccessful, was substantially justified.
VII. PERMANENT INJUNCTION As part of this Consent Decree, and in addition to the requirements of Section VI, the
Court permanently enjoins the following practices by the City Defendants and District Attorney Defendants:
45. The City Defendants and District Attorney Defendants are permanently enjoined from seizing property for forfeiture, initiating forfeiture or related proceedings, or administering forfeiture, return-of-property, or related proceedings unless the property owner whose property has been seized or restrained has the option of receiving a prompt and meaningful postdeprivation hearing in which the property owner may challenge the bases for the seizure, restraint, and/or retention of their property.
46. The City Defendants and District Attorney Defendants are permanently enjoined from adopting any policy or practice that denies property owners a prompt and meaningful postdeprivation hearing that substantially conforms with the hearing outlined in this Consent Decree.
47. The City Defendants and District Attorney Defendants are permanently enjoined from seeking default judgment unless in accordance with the terms of this Consent Decree
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(including the District Attorney’s Office seeking one automatic continuance if a Claimant fails to appear and two additional continuances upon a Claimant’s request, in order to permit Claimants additional opportunities to appear).
48. The City Defendants and District Attorney Defendants are permanently enjoined from relisting forfeiture, return-of-property, or related proceedings unless in accordance with the terms of this Consent Decree.
49. The City Defendants and District Attorney Defendants are permanently enjoined from conducting forfeiture, return-of-property, or related proceedings, unless before a neutral arbiter (a judicial officer of the Court of Common Pleas, and not an agent or employee of the District Attorney’s Office).
50. The City Defendants and District Attorney Defendants are permanently enjoined from requiring a property owner to affirmatively prove his or her own innocence in forfeiture, return-of-property, or related proceedings.
51. The City Defendants and District Attorney Defendants are permanently enjoined from conducting forfeiture, return-of-property, or related proceedings without:
a. providing adequate notice of property owners constitutional and statutory rights and legal responsibilities in such proceedings;
b. using the Pennsylvania Civil Rules of Procedure; c. conducting the proceedings in a timely manner; d. declining to oppose a Claimant’s Praecipe to Stay Forfeiture Proceedings or a
Claimant’s request for a continuance until further notice when there is a related criminal case pending; and
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e. seeking a continuance staying the proceedings when a criminal case is pending related to the property at issue, once the Claimant files an answer in the forfeiture case.
VIII. EFFECT OF CONSENT DECREE The Parties hereby agree that: 52. This Consent Decree releases Defendants from all claims for injunctive relief or
declaratory judgment that were or could have been asserted by Plaintiffs under Counts Three, Four, Six, and Seven of their Second Amended Complaint. This release of claims shall not prevent Plaintiffs from enforcing the provisions of the Permanent Injunction in Part VII above.
53. This Consent Decree is not, and may not be relied upon as, an admission of any wrongdoing or liability by any of the Defendants.
54. Nothing in this Consent Decree shall be deemed a waiver of any defense that the Defendants may have to any claim now pending, including claims for damages, or any claim that may be brought in the future.
55. This Consent Decree has no relevance to any attempt by the Plaintiffs to obtain certification of a class to pursue damages, and shall not be deemed a waiver of any ground the Defendants may have for opposing such class certification. IX. LAW OF THE CASE
56. In any future motions or lawsuits brought by Plaintiffs’ Class Counsel against any of the Defendants that raise any of the claims brought in Plaintiffs’ Second Amended Complaint, the law of this case (Sourovelis v. City of Philadelphia, et al., Civil Action No. 2:14-cv-04687) shall apply.
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X. CONSTRUCTION AND TERMINATION 57. A motion seeking to modify or terminate this Consent Decree due to a change in
law or legal precedent may be brought at any time by any of the Parties. 58. Any notice required under this Agreement will be provided to counsel listed
below. XI. FJD DEFENDANT PROVISOS RELATED TO CLASS ACTION SETTLEMENT
59. By September 18, 2018, Plaintiffs may move for leave to file a Third Amended Complaint alleging the existence of a Rule 23(b)(3) class for Counts 5 and 6 of the Second Amended Complaint. The FJD Defendants agree not to contest this motion.
60. Plaintiffs will move for preliminary approval of class certification and this Consent Decree on the Courtroom Claims. Defendants agree not to contest this motion.
61. The FJD Defendants agree not to contest Plaintiffs’ motion for preliminary approval of class certification and the Proposed Consent Decree on Plaintiffs’ Fifth and Sixth Claims for Relief.
62. If the City Defendants, District Attorney Defendants, and Plaintiffs all agree to file a joint motion on a standard procedural matter necessary to the final settlement of this classaction lawsuit, the FJD Defendants agree to join the motion as well. If the City Defendants, District Attorney Defendants, and Plaintiffs agree to file an uncontested motion on a standard procedural matter necessary to the final settlement of this class-action lawsuit, the FJD Defendants agree to not contest that motion.
63. The FJD Defendants agree to post the court-approved notice of this Consent Decree and classwide resolution of this action in the “Court News” section of the website.
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XII. ATTORNEYS’ FEES 64. Defendants shall not oppose a petition from Plaintiffs or Class Counsel to receive
$2,630,000.00 in attorneys’ fees from the City Defendants, the District Attorney Defendants, and the FJD Defendants, with half of this amount being paid within forty-five (45) days of the preliminary approval of the Consent Decree on Plaintiffs’ Fifth and Sixth Claims for Relief and the other half being paid on or before August 30, 2019.
65. Class Counsel agrees not to file a fee petition for more than $2,630,000.00 nor seek recovery of fees arising from obtaining approval of this Consent Decree, litigating appeals by third parties of such approval, or monitoring compliance with this Consent Decree. However, Plaintiffs and Class Counsel may seek attorneys’ fees related to enforcing any provision of this Consent Decree.
66. Class Counsel agrees not to receive interest on the second payment of attorneys’ fees.
67. Should the Court award less than $2,630,000.00 in attorneys’ fees, that decision shall have no impact on the remainder of this Agreement.
68. Moreover, if this Consent Decree does not obtain full and final approval, Class Counsel shall return the full amount of the first attorneys’ fees payment within forty-five (45) days of the court order denying or vacating final approval of this Consent Decree.
69. In the event this action proceeds to litigation, nothing in this agreement precludes the ability of Plaintiffs or Class Counsel to seek all reasonable attorneys’ fees and costs to which they are entitled by law.
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APPENDIX 1: Monthly Compliance Reporting
The following items shall be provided by the District Attorney Defendants to the Plaintiffs on a monthly basis to satisfy the compliance reporting described in Section VI(B) of the Consent Decree. Together, these constitute one certification of compliance (or explanation of non-compliance) and four spreadsheet reports on specific topics.
1. Certification of compliance with all listed items in Section VI(B)(1)-(2) and/or explanation of non-compliance as explained in Section VI(B)(3).
2. Monthly spreadsheet report of current total numbers related to seizures/forfeitures, including: a. Narcotics-based seizures by type of property (i) Real property – residence (ii) Real property – commercial or other (iii) Cash (iv) Vehicle b. Active forfeiture cases by category (civil, common law, criminal) c. Active forfeiture cases by type of property (i) Real property – residence (ii) Real property – commercial or other (iii) Cash (iv) Vehicle (v) Other Personal Property d. Number of forfeiture cases stayed due to pending criminal case e. Number of automatic continuances sought due to Claimant unavailability (i) “Free pass” continuances (ii) “Upon request” continuances f. Number of forfeiture cases resolved, with type of disposition (i.e., default judgment, dismissal, settlement, property returned to plaintiff, property forfeited after trial)
3. Monthly spreadsheet report regarding the timing of seizure/forfeiture procedures. For all current cases, list the following (if applicable) by providing the case caption, the docket number, and the actual number of days it took for the criteria to be satisfied: a. Any case in which a forfeiture petition was filed more than ninety (90) days after the seizure b. Any Forfeiture Petition for which service on the Claimant was not attempted within seven (7) days c. Any Forfeiture Petition for which the Claimant was not served within fortyfive (45) days d. Any proof of service for a Forfeiture Petition not filed with the court within three (3) days of the date of service e. Any forfeiture case in which the Pretrial Conference was not held within thirty-five (35) days of the date of the filing of the proof of service
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f. For any forfeiture case in which the property was ordered returned to the Claimant, and the property was not returned within seven (7) days of the date of the order, please explain why (Claimant hasn’t claimed property, property cannot be located, etc.)
g. For any forfeiture case which remains open more than one (1) year after the date of seizure, please provide the status of the case (e.g., pending trial, stayed, continued, etc.)
4. Monthly spreadsheet report on how forfeited property was spent, sold, distributed, or otherwise used a. Total amount of forfeiture revenue that month, by category of property: (i) Real property – residence (ii) Real property – commercial or other (iii) Cash (iv) Vehicle (v) Other Personal Property b. Disposition of non-cash property (i) If sold – total proceeds of sold property (ii) If kept – department/agency to which any property was transferred and for what purpose c. Expenditures of forfeiture funds that month (i) Specific line item expenses including: 1. Name of recipient 2. Cost 3. Brief description of item/service purchased, including quantity if applicable 4. Brief description of intended purpose for item/service 5. For grants or any transfers of funds, any restrictions placed on the use of the funds
5. As described in Section VI(B)(4), a monthly rolling summary spreadsheet of cases in which a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings has been filed, including a. Case caption b. Docket number c. Date of seizure d. Case initiation date (either date the Forfeiture Petition was filed or the date a Motion for Return/Release of Seized Property was filed) e. Date the Prompt Post-Seizure Hearing is scheduled and/or held f. Disposition of the motion (e.g., granted, denied, partially granted & partially denied) g. For claimants who prevailed, the actual date the property was released to the claimant or his/her representative
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PROPOSED CONSENT DECREE ON PLAINTIFFS’ CLAIMS FOR INJUNCTIVE RELIEF
REGARDING THE COURTROOM CLAIMS (CLAIMS THREE, FOUR, SIX, AND SEVEN)
ATTACHMENT 1

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Trial Division GCR 01 of 2018 (8-29-18)
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA COURT OF COMMON PLEAS OF PHILADELPHIACOUNTY
TRIAL DIVISION
General Court Regulation No. 01 of 2018
Proceedings Seeking Forfeiture of Assets
The procedures contained in this General Court Regulation apply to civil forfeiture proceedings, including but not limited to asset forfeiture proceedings commenced pursuant to the Act of June 29, 2017, P.L. 247, No. 13 § 9.
General Court Regulation No. 02 of 2016 issued on July 25, 2016 is rescinded effective on November 1, 2018.
A. Initiation of Civil Forfeiture Proceedings by the Commonwealth
1. Filing of Forfeiture Petition. The in rem civil forfeiture proceeding shall be commenced within the time period specified by law by filing a Forfeiture Petition with the Office of Judicial Records, (formerly “Prothonotary,” “Clerk of Quarter Sessions” and “Clerk of Courts”).
Note: The Petition, Answer, other pleadings and legal papers should be electronically filed with the Office of Judicial Records at its website www.courts.phila.gov. The Office of Judicial Records will also accept for filing the Petition, Answer and other pleadings and legal papers in a paper format through its office at the Justice Juanita Kidd Stout Center for Criminal Justice (“Stout Center”), Second Floor, Motions Counter, 1301 Filbert Street, Philadelphia, PA.
2. Parties. The Commonwealth of Pennsylvania shall be the “Plaintiff” and the property at issue shall be the “Defendant.” The party or parties who have an interest in the property subject to forfeiture shall be referenced as “Claimant(s).”
3. Content of Petition. The Petition shall contain the following: a. A description of the property actually seized or constructively seized, including, if known, the address of any real property, the exact dollar amount of any United States currency, or the approximate value of any negotiable instrument or security and the make, model, year and license plate number of any vehicle. b. A statement of the time and place where seized. c. The owner, if known. d. The person or persons in possession at the time of seizure, if known. e. The related Offense Tracking Number (OTN), CPCMS criminal case number, and the criminal complaint, if applicable. f. The Property Receipt which describes the property seized. g. The Philadelphia Tracking Number (PID) of the claimant, if issued. h. The Philadelphia Police Department District Control number (DC#) associated with the seizure of the subject property, if one exists. i. An allegation that the property is subject to forfeiture and an averment of material facts supporting the forfeiture action. j. A prayer for an order of forfeiture that the property be adjudged forfeited to the Commonwealth unless cause is shown to the contrary. k. A verification pursuant to Pa.R.C.P. No. 1024 signed by the attorney for the Commonwealth.
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4. Notice to Defend. The first page of the Petition shall be a Notice to Defend, signed as noted thereon, substantially as follows:

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY TRIAL DIVISION, CIVIL

Commonwealth of Pennsylvania

:

CP - 51- MD -_ _ _ _ _ _ _ - _ _ _ _

Plaintiff

:

vs.

:

OTN #

:

PID

[Description of Property Seized]

:

DC #

Defendant

:

PR #

LOCATION OF SEIZURE: _________________________________________ OWNER OF PROPERTY: __________________________________________ PROPERTY SEIZED FROM: _______________________________________

NOTICE TO DEFEND: CIVIL ASSET FORFEITURE TO THE CLAIMANT OF WITHIN DESCRIBED PROPERTY:
You are required to file a written Answer to this petition, setting forth your title in, and right to possession of, said property within 30 days from the service hereof, and you are also notified that, if you fail to file the Answer, a decree of forfeiture and condemnation will be entered against the property.
A Pretrial Conference will be scheduled by the Court, and you should expect to receive a Notice of Pretrial Conference within a week or so after the Forfeiture Petition and this Notice to Defend are served on you. The date of the Pretrial Conference should be at least two weeks after you receive the Notice of Pretrial Conference which should allow you to attend the hearing. You or your attorney must attend this Pretrial Conference.
If you have been criminally charged in a case associated with the forfeiture matter, prior to filing an Answer to the Forfeiture Petition, you may file a Praecipe to Stay the Forfeiture Proceedings using the above-referenced caption and docket number. The forfeiture proceedings will be stayed by the Office of Judicial Records upon receipt of the Praecipe. However, please know that when the stay is lifted, you must file an Answer to the Forfeiture Petition within 30 days from the day the stay is lifted.
If you wish to seek the temporary release of your seized property while these forfeiture proceedings are pending, you may also file a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings, pursuant to 42 Pa.C.S. §§ 5805(f) and 5806 at any time during the pendency of the Forfeiture Proceedings.
Additionally, you should know that you may request a jury trial. However, the request must be made no later than twenty (20) days after the service of the last permissible pleading. You can request a jury either by indicating so on any Answer you file or by submitting and filing a separate request with the Office of Judicial Records, preferably electronically, or by mail or in person at the Justice Juanita Kidd Stout Center for Criminal Justice, Second Floor, Motion Counter, 1301 Filbert Street, Philadelphia, PA.

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YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBILE PERSONS AT A REDUCED FEE OR NO FEE. YOU ARE NOT ENTITLED TO A COURT-APPOINTED LAWYER.
Philadelphia Bar Association Lawyer Referral and Information Service
1101 Market Street, 11th Floor Philadelphia, Pennsylvania 19107
(215) 238-6333 TTY (215) 451-6197
/s/
____________________________________ Name of Person Signing and Title: Attorney General, Deputy Attorney General, District Attorney, Deputy District Attorney or Assistant District Attorney Date:
A copy of this Notice is also attached below as Attachment A. This Notice may be modified from time to time as may be appropriate, and the current version shall be posted on the website of the First Judicial District at: www.courts.phila.gov/forms.
5. Service of the Petition. a. Personal Service. Service by Certified Mail. The Commonwealth shall serve the Petition on the owner of the property, if known, and upon each person in possession of the property at the time of the seizure, if known. Service shall be accomplished by personal service or by certified mail. i. Personal Service. Personal service shall be made as provided in Pa.R.C.P. No. 400.1, and an Affidavit of Service signed by the server, setting forth the date, time and location of service on the Claimant must be filed with the Office of Judicial Records, as soon as practicable after service is accomplished. ii. Service by Certified Mail. Service by mail shall be made as provided in Pa.R.C.P. No. 403 and must require a receipt signed by the Claimant. Service is complete upon delivery of the mail, and the Plaintiff shall file an Affidavit of Service, and attach the receipt signed by the Claimant, with the Office of Judicial Records, as soon as practicable after service is accomplished. iii. Service Address. In the event the Claimant was served at an address other than that stated in the Forfeiture Petition, or if the Claimant’s address for subsequent service of legal papers other than original process, pursuant to Pa.R.C.P. No. 440, is different than that stated in the Forfeiture Petition, the Commonwealth shall file a Praecipe with the Office of Judicial Records providing the address to which legal papers may be served on the Claimant. The Praecipe shall be substantially in the form attached below as Attachment B.
b. Substitute Service. If (i) the owner of the property is unknown, (ii) there was no person in possession of the property when seized or (iii) the owner or each person in possession at the time of the seizure cannot be personally served or located within the jurisdiction of
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the court, notice of the filing of the petition shall be given by the Commonwealth through an advertisement in at least one newspaper of general circulation published in the county where the property has been seized, once a week for two successive weeks.
The substitute notice shall contain a statement of the seizure of the property with a description of the property and the place and date of seizure and shall direct any claimants to the property to file a claim on or before a date given in the notice, which shall not be less than 30 days from the date of the first publication. If no claims are filed within 30 days of publication, the Commonwealth may move for default judgment. The Plaintiff shall file an Affidavit of Substitutes Service, substantially in the form attached below as Attachment C, referencing advertising of the filing of the Forfeiture Petition and shall attach proof of the advertising.
6. Answer. a. Filing. As provided in 42 Pa.C.S. § 5805, a claimant shall file an Answer setting forth their title in and right to possession of the property, within thirty (30) days from the service of the Petition, or at any other time agreed upon by the parties, or as ordered by the court. Provided, however, that if the claimant has been criminally charged in a case associated with the forfeiture matter and files a Praecipe to Stay Forfeiture Proceedings, as provided in Section 8, the Claimant shall have thirty (30) days to file an Answer from the date the stay is lifted. b. Service. The Claimant must serve the District Attorney or Attorney General who has jurisdiction over the case, and must file proof of service with the Office of Judicial Records. However, the District Attorney’s Office has agreed to be served by the Office of Judicial Records upon its receipt and acceptance of the Answer.
7. Failure to File an Answer. If an Answer is not filed as required above, the Plaintiff may seek the entry of judgment by default by complying with the provisions of Pa.R.C.P. No. 237.1, or by seeking any appropriate relief by filing an appropriate motion, as more fully set forth below.
8. Motion Practice. a. After the commencement of a forfeiture action, the Plaintiff and Claimant(s) may file motions, including but not limited to the following: i. Motion for Default Order of Forfeiture. Plaintiff may seek the entry of a default forfeiture order if the Forfeiture Petition was served but an Answer was not filed as required under Section 6. If the Claimant attends the hearing scheduled on this Motion, a Pretrial or Status Conference shall be held. Unless the parties otherwise agree, the judge may order the Claimant to file an Answer by a date certain, and may enter an order granting the Forfeiture Petition if an Answer is not filed by that date.
ii. Praecipe to Stay Forfeiture Proceedings. Consistent with 42 Pa.C.S. § 5805(a)(2)(ii), a Claimant who has been criminally charged in a case associated with the Forfeiture Petition may, prior to filing an Answer to the Forfeiture Petition, file a Praecipe to Stay the Forfeiture Proceedings, substantially in the form attached below as Attachment D, pending disposition of the criminal case(s). (a) Upon the filing of the Praecipe, the Office of Judicial Records shall stay the forfeiture proceedings. The stay shall remain in effect until the earlier of: (1) the issuance of a sentencing order, which is deemed to be the conclusion of the criminal proceedings for purposes of the asset forfeiture proceeding. The
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Commonwealth must file a Praecipe to Lift the Stay of Forfeiture Proceedings, substantially in the form attached below as Attachment E, with the Office of Judicial Records and a status conference will be scheduled; or (2) the filing of a Praecipe by the Claimant to lift the stay. (b) Upon the lifting of the stay, the Claimant must file an Answer within thirty (30) days, and the Office of Judicial Records shall schedule a Status Conference. (c) The Stay does not affect a Claimant’s ability to file a Motion for Release of Property Pending the Conclusion of the Forfeiture Proceedings under 42 Pa.C.S. §§ 5805(f), 5806.
iii. Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings Pursuant to Sections 5805(f) and 5806. Any time after the commencement of civil forfeiture proceedings as provided in this General Court Regulation, the Claimant may seek the release of the seized property pending the conclusion of the forfeiture proceedings, as provided in 42 Pa.C.S. § 5805 (f), by filing a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings. A Claimant may also file a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings to commence the civil action, even if civil forfeiture proceedings have not yet been commenced, as provided in Section B below.
(a) Contents of Motion. The Motion shall set forth the basis for seeking the immediate release of the seized property as provided in Section 5805(f)(1), if applicable. The Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings shall be substantially as attached below as Attachment E. (b) Service. The Claimant must serve the Motion on the District Attorney or Attorney General who has jurisdiction over the case, and must file proof of service with the Office of Judicial Records. However, the District Attorney’s Office has agreed to be served by the Office of Judicial Records upon its receipt and acceptance of the Motion. (c) Hearing. The Office of Judicial Records shall schedule a hearing on the motion, as practicable and consistent with the interests of justice, but no later than for a date within ten (10) business days of the filing of the Motion or, when required, the filing of proof of service of the Motion by the Claimant.
iv. Motion for Judgment on the Pleadings, as provided in Pa.R.C.P. No. 1035 et seq., if the Claimant attends the hearing scheduled in connection with this Motion, the hearing shall be converted to a Pretrial Conference or Status Conference.
v. Motion for Summary Judgment, as provided in Section 1035.1 et seq., if the Claimant attends the hearing scheduled in connection with this Motion, the hearing shall be converted to a Pretrial Conference or Status Conference.
b. All Motions shall be filed utilizing the Miscellaneous Docket number assigned by the Office of Judicial Records to the Forfeiture Petition.
c. The Claimant must serve any Motions, Answers or Responses filed by the Claimant on the District Attorney or Attorney General who has jurisdiction over the case, and must file proof of service with the Office of Judicial Records. However, the District Attorney’s
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Office has agreed to be served by the Office of Judicial Records upon its receipt and acceptance of the Motion, Answer or Response. d. All motions will be assigned to a judge for disposition and, as practicable, shall be assigned to the same judge.
9. Jury Demand. A jury trial may be demanded by the Plaintiff or Claimant(s). Pursuant to Pa. R.C.P. No. 1007.l (a), the right to jury trial shall be deemed waived unless a party files of record and serves on the adverse party a demand for jury trial no later than twenty (20) days after the service of the last permissible pleading. The Jury Demand shall be made by endorsement on a pleading or by a separate writing, substantially in the form attached below as Attachment G. A jury trial may be waived as provided in Pa.R.C.P. No. 1007.1(c)(2).
10. Scheduling of a Pretrial Conference. a. The Office of Judicial Records shall schedule a Pretrial Conference to be held within thirty (30) days from the date the Forfeiture Petition is served by the Commonwealth on the owner(s) or person(s) in possession at the time of the seizure of the property. b. The Pretrial Conference shall be scheduled and the Notice of Pretrial Conference shall be mailed within seven days of the filing of proof of service of the Forfeiture Petition and the date of the Pretrial Conference shall be approximately thirty days after service of the Forfeiture Petition. c. A draft Notice of Pretrial Conference is attached below as Attachment H. This Notice may be modified from time to time by the Court as may be appropriate.
11. Pretrial Conference. a. The Pretrial Conference shall be conducted by a judicial officer (a judge or trial commissioner) who shall provide important information to the Claimant regarding the proceedings in an oral and written format. The following issues shall be addressed:
i. Whether the Forfeiture Petition and related documents were served on the owner of the above-referenced Property or upon the person or persons in possession of the property at the time of the seizure. If service could not effectuated, the Pretrial Conference will be rescheduled to a date certain to enable the Plaintiff to effectuate service.
ii. Whether an Answer was filed. If an Answer has not been filed, whether there is agreement that an Answer may be filed within an agreed-upon period of time.
iii. Whether the Claimant is represented by counsel. The Claimant shall be informed that the Claimant is entitled to counsel, but is not entitled to court-appointed counsel.
iv. Whether the Claimant has requested, or intends to request, a jury trial. The Claimant shall be informed that the Claimant is entitled to a jury trial, and that in order to obtain a jury trial, the Claimant must file a written request for a jury trial no later than twenty (20) days after the service of the last permissible pleading and pay the required Jury fee.
v. Whether the proceedings may be resolved by agreement. vi. If the Plaintiff and Claimant indicate that an agreement has been reached, the
proceeding shall be referred to a Judge for approval. If a Judge is not available, the case shall be rescheduled before a Judge as soon as practicable. In order to approve the settlement, the judge must be satisfied that the claimant is entering into the agreement knowingly, voluntarily and intelligently and that the Claimant understands that he/she is entitled to a hearing on the merits, along with other factors that may be required by law. vii. Whether there are any factual issues upon which the parties agree.
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viii. Whether discovery is necessary, and if so, if an Answer has been filed, the terms of discovery and a discovery schedule shall be established.
ix. Whether the Claimant has filed a Praecipe to Stay Forfeiture Proceedings pursuant to 42 Pa.C.S. § 5805(a)(2)(ii), a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings pursuant to 42 Pa.C.S. §§ 5805(f) and 5806, a Motion for Return of Property pursuant to Pa.R.Crim.P. 588 and Phila. Crim. R. *588, or is seeking other post-deprivation relief.
x. Whether a trial date can be scheduled or must be scheduled. xi. Any other procedural issues impacting the forfeiture of the seized property or the
owner(s) thereof.
b. On the day of the Pretrial Conference, a Trial Commissioner may be assigned to review the status of the matter and to determine whether the Pretrial Conference is ready to proceed before the assigned judge on the scheduled date. In the event the Pretrial Conference cannot proceed as scheduled, the Trial Commissioner may reschedule the Pretrial Conference, but shall not take any dispositive action.
c. If the Pretrial Conference is continued, any subsequent continuance requests by either party must be decided by the assigned Judge sitting that day.
12. Default Proceedings. a. If an Answer is not filed as required, the Plaintiff may seek the entry of judgment pursuant to law and rules of court including, but not limited to the following:
i. by default by complying with the provisions of Pa.R.C.P. No. 237.1; ii. by filing a motion for judgment on the pleading pursuant to Pa.R.C.P. No. 1034, in
which case, the court shall enter such judgment or order as shall be proper on the pleadings; iii. by filing a motion for summary judgment pursuant to Pa.R.C.P. No. 1035.2; iv. by filing a motion for default order; or v. by filing any other appropriate motion.
b. If the Claimant attends the hearing scheduled in connection with any of the above motions, the hearing shall be converted to a Pretrial Conference or Status Conference.
13. Trial or Hearing. On the filing of an Answer setting forth a right of possession, the case shall be deemed at issue and a date and time shall be fixed for the trial.
14. Burden of Proof. The burden of proof shall be as set forth in 42 Pa.C.S. § 5805(j) and as otherwise provided by law.
15. Appeal. No post-trial motions need to be filed to the final order or judgment entered by the court. Appeals may be filed pursuant to Pa.R.A.P. 903.
16. Other Applicable Rules of Civil Procedure. The Pennsylvania Rules of Civil Procedure shall apply to fill procedural gaps arising from the various statutory provisions governing civil forfeitures.
17. Minors as Parties. In the event the owner or person or persons in possession of the seized property is a minor, the Commonwealth shall serve the minor and shall bring to the Court’s attention the minority of the owner or person in possession. The Court shall determine to
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what extent a parent or natural guardian may need to represent the minor’s interests consistent with Pa.R.C.P. No. 2026 et seq.

B. Claimant’s Initiation of Civil Proceedings by Filing a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings
A Claimant may initiate civil proceedings, before the Commonwealth files a Forfeiture Petition as provided in Section A., by filing a Motion for Release of Seized Property Pending the Conclusion of the Proceedings Pursuant to 42 Pa.C.S. §§ 5805(f) and 5806.
1. Filing of Motion for Release of Seized Property Pending the Conclusion of the Proceedings. The in rem civil proceedings may be commenced by the Claimant through the filing of a Motion, setting forth the information identified in Sections 5805 (f)(1) and 5806, with the Office of Judicial Records.
2. Contents of Motion. See Section A. 8. a. iii. above for more information regarding the contents of the Motion.
3. Service. The claimant must serve the District Attorney or Attorney General who has jurisdiction over the case, and must file proof of service with the Office of Judicial Records. However, the District Attorney’s Office has agreed to be served by the Office of Judicial Records upon its receipt and acceptance of the Motion.
4. Hearing. The Office of Judicial Records shall schedule a hearing on the Motion, as practicable and consistent with the interests of justice, but no later than for a date within ten (10) business days of the filing of the Motion or, when required, the filing of proof of service of the Motion by the Claimant.
5. Order. The Court will enter an appropriate order as provided in Section 5805 (f)(5).
This General Court Regulation is issued in accordance with the April 11, 1986 order of the Supreme Court of Pennsylvania, Eastern District, No. 55 Judicial Administration, Docket No. 1, and shall be filed with the Office of Judicial Records (formerly the Prothonotary, Clerk of Quarter Sessions and Clerk of Courts) in a docket maintained for Orders and General Court Regulations issued by the First Judicial District of Pennsylvania. Two certified copies of this General Court Regulation, and one copy on a computer diskette, shall be distributed to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin. Copies will be submitted to American Lawyer Media, Jenkins Memorial Law Library, and the Law Library for the First Judicial District shall be published in The Legal Intelligencer and posted on the First Judicial District’s website at http://courts.phila.gov. This General Court Regulation will become effective on November 1, 2018.
BY THE COURT:

Date: August 31, 2018

/s/ Jacqueline F. Allen _______________________________________ HONORABLE JACQUELINE F. ALLEN Administrative Judge, Trial Division Court of Common Pleas, Philadelphia County

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Attachment A

Commonwealth of Pennsylvania : Plaintiff vs.
[Description of Property Seized] : Defendant

CP - 51- MD -_ _ _ _ _ _ _ - _ _ _ _

:
DC # :

OTN # PID
PR #

LOCATION OF SEIZURE: _________________________________________ OWNER OF PROPERTY: __________________________________________ PROPERTY SEIZED FROM: _______________________________________

NOTICE TO DEFEND: CIVIL ASSET FORFEITURE TO THE CLAIMANT OF WITHIN DESCRIBED PROPERTY:
You are required to file a written Answer to this petition, setting forth your title in, and right to possession of, said property within 30 days from the service hereof, and you are also notified that, if you fail to file the Answer, a decree of forfeiture and condemnation will be entered against the property.
A Pretrial Conference will be scheduled by the Court, and you should expect to receive a Notice of Pretrial Conference within a week or so after the Forfeiture Petition and this Notice to Defend are served on you. The date of the Pretrial Conference should be at least two weeks after you receive the Notice of Pretrial Conference which should allow you to attend the hearing. You or your attorney must attend this Pretrial Conference.
If you have been criminally charged in a case associated with the forfeiture matter, prior to filing an Answer to the Forfeiture Petition, you may file a Praecipe to Stay the Forfeiture Proceedings using the abovereferenced caption and docket number. The forfeiture proceedings will be stayed by the Office of Judicial Records upon receipt of the Praecipe. However, please know that when the stay is lifted, you must file an Answer to the Forfeiture Petition within 30 days from the day the stay is lifted.
If you wish to seek the temporary release of your seized property while these forfeiture proceedings are pending, you may also file a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings, pursuant to 42 Pa.C.S. §§ 5805(f) and 5806 at any time during the pendency of the Forfeiture Proceedings.
Additionally, you should know that you may request a jury trial. However, the request must be made no later than twenty (20) days after the service of the last permissible pleading. You can request a jury either by indicating so on any Answer you file or by submitting and filing a separate request with the Office of Judicial Records, preferably electronically, or by mail or in person at the Justice Juanita Kidd Stout Center for Criminal Justice, Second Floor, Motion Counter, 1301 Filbert Street, Philadelphia, PA.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.

IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBILE PERSONS AT A REDUCED FEE OR NO FEE. YOU ARE NOT ENTITLED TO A COURT-APPOINTED LAWYER.
Philadelphia Bar Association Lawyer Referral and Information Service
1101 Market Street, 11th Floor Philadelphia, Pennsylvania 19107
(215) 238-6333 TTY (215) 451-6197

____________________________________
Name: Title: Date:

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Attachment B
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY TRIAL DIVISION, CIVIL

Commonwealth of Pennsylvania :

Plaintiff

vs.

:

[Description of Property Seized] :

Defendant

:

CP - 51- MD -_ _ _ _ _ _ _ - _ _ _ _
OTN # PID DC # PR #

PRAECIPE - CLAIMANT’S CHANGE OF ADDRESS

TO THE OFFICE OF JUDICIAL RECORDS: Kindly update the Claimant’s address for purposes of service of legal papers other than
original process, and for giving notices pursuant to Pa.R.C.P. No. 236 to the following address:
Name: Address:

Date: ______________

_______________________________________ Assistant District Attorney/PA Attorney General

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Attachment C

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Court of Common Pleas of Philadelphia County Trial Division, Civil

In Re:

:

:

____________________________________ :

:

Forfeiture Petition Receipt No. _____________________
No. _ _ -51-_ _ - _ _ _ _ _ _ _ - _ _ _ _

AFFIDAVIT OF SUBSTITUTED SERVICE TO THE OFFICE OF JUDICIAL RECORDS:

The Commonwealth effectuated service of its Forfeiture Petition by Substituted Service pursuant to 42 Pa.C.S. § 5805 (c), due to the following:
□ the owner of the property is unknown. □ there was no person in possession of the property when seized. □ _____________________________________________________________, the owner(s) or
person(s) in possession at the time of the seizure cannot be personally served or located within the jurisdiction of the court despite the following efforts by the Commonwealth:
(Set forth below in detail the efforts made to serve the owner(s)/person(s) in possession)

Notice of the filing of the Forfeiture Petition, containing the information required by 42 Pa.C.S. § 5805, shall be given through an advertisement in one newspaper of general circulation published in Philadelphia County once a week for two successive weeks. Proof of Publication shall be filed with the Office of Judicial Records. After publication, any other notice to the owner, person in possession or other interested party deemed served by publication shall be provided, as appropriate, by regular mail if a last known address is known.

Date: _____________

____________________________________
Assistant District Attorney/PA Attorney General

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Attachment D
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY TRIAL DIVISION, CIVIL

Commonwealth of Pennsylvania :

Plaintiff

vs.

:

[Description of Property Seized] :

Defendant

:

CP - 51- MD -_ _ _ _ _ _ _ - _ _ _ _
OTN # PID DC # PR #

LOCATION OF SEIZURE: _________________________________________

PROPERTY SEIZED FROM: _______________________________________

NAME OF CLAIMANT: ____________________________________________

PRAECIPE TO STAY FORFEITURE PROCEEDINGS

Claimant,

, requests that pursuant to 42 Pa.C.S. §

5805(a)(2)(ii) and Trial Division General Court Regulation No. 01 of 2018, the Forfeiture Proceedings

be Stayed until the earlier of the disposition of the criminal case(s) related to the seized property

or until Claimant’s request to lift the Stay.

I understand that I may file a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings even after this Stay is granted.

____________________________________
Claimant Date:

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Attachment E
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY TRIAL DIVISION, CIVIL

Commonwealth of Pennsylvania :

Plaintiff

vs.

:

[Description of Property Seized] :

Defendant

:

CP - 51- MD -_ _ _ _ _ _ _ - _ _ _ _
OTN # PID DC # PR #

LOCATION OF SEIZURE: _________________________________________

PROPERTY SEIZED FROM: _______________________________________

NAME OF CLAIMANT: ____________________________________________

PRAECIPE TO LIFT STAY OF FORFEITURE PROCEEDINGS

The undersigned requests that the Stay of Forfeiture Proceeding entered on _____________________ is lifted at the request of
□ Claimant ______________________________; □ the Commonwealth

____________________________________
[Claimant] [Commonwealth of Pennsylvania] Date:

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Attachment F

For Official Use Only – Bar Code

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

Motion for the Release of Seized Property

Pending the Conclusion of the Forfeiture Proceedings

Pursuant to 42 Pa. C.S. §§ 5805(f) and 5806

Motion Must Be Filed with the
Office of Judicial Records

FOR OFFICIAL USE ONLY- CAPTION (PROPERTY DESCRIPTION)
In Re:

Justice Juanita Kidd Stout Center for Criminal Justice 1301 Filbert Street, Motions Counter (Second Floor), Philadelphia, PA 19107

CPCMS No. _ _ -51-MD - _ _ _ _ _ _ _ - _ _ _ _

(Petitioner: See Reverse Side for Service Information)

NAME OF PETITIONER (Person filing this Motion)

PP No.

PETITIONER’S CURRENT ADDRESS

TELEPHONE NO.

Motion for the Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings, pursuant to 42 Pa. C.S. § 5805(f)& § 5806 1) I, the above named Petitioner, represent that I am entitled to lawful possession of the property described and identified below, and request this Honorable
Court to release the property to me pending the conclusion of the Forfeiture Proceedings, and in support of my request I aver as follows:

2) NAME AND ADDRESS OF PERSON IN POSSESSION OF PROPERTY WHEN SEIZED

3) NAME AND ADDRESS OF THE OWNER, IF KNOWN

POLICE PROPERTY RECEIPT NUMBER (Attach Receipt) DATE PROPERTY SEIZED

LOCATION OF PROPERTY WHEN SEIZED

NAME OF LAW ENFORCEMENT OFFICER WHO SEIZED PROPERY, IF KNOWN

BADGE NUMBER, IF KNOWN

DESCRIPTION OF PROPERTY

ADDRESS OF PROPERTY, IF PROPERTY SEIZED IS REAL ESTATE

VIN NUMBER, IF PROPERTY SEIZED IS A MOTOR VEHICLE

ARE THERE ANY PENDING MATTERS RELATED TO THE SUBJECT PROPERTY (SUCH AS FORFEITURE)?

☐ Yes

☐ No

If Yes, Case ID(s) assigned to the pending matter(s):

☐ I have not filed a Motion for the Return of Property pursuant to Pa.R.Crim. P. 588 and Phila.Crim.R. 588. ☐ I have filed a Motion for the Return of Property pursuant to Pa.R.Crim. P. 588 and Phila.Crim.R. 588. The Case ID is:

Basis for the Motion The legal/factual basis for this motion is/are (more than one may apply, attach additional pages as necessary): ☐ A. The Commonwealth lacked probable cause for the seizure of the property. ☐ B. The likelihood that the Commonwealth will prevail on the merits is low, including overcoming ‘innocent owner’ or other defenses. ☐ C. The balance of equities favors the return of my property during the pendency of the civil forfeiture proceedings because my likely hardship outweighs the risk
that the property will be destroyed, damaged, lost, concealed or transferred. In addition, I aver that:

(In order to set forth the basis on which these requirements have been met attach additional proof or documentation and explain each item in detail if possible)

1. I have a possessory interest in the property.

2. I have sufficient ties to the community to assure that the property will be available at the time of the trial.

3. The hardship I will suffer from the Commonwealth’s continued possession of my property (such as preventing the functioning of my legitimate business, preventing me from working or leaving me homeless) outweighs the risk that the property will be destroyed, damaged, lost, concealed or transferred if the property is returned to me during the pendency of the forfeiture proceeding.

4. The property seized is not contraband, not evidence of a violation of the law, not particularly suited for use in illegal activities, and will not be used to commit additional criminal acts if it is returned to me.
☐ D. Other:_____________________________________________________________________________________________________________

I request that the Court order the Commonwealth to:

Requested Relief

☐Return my property.

☐ Reimburse me for my legal interest in the property.

☐Sever my property from the forfeited property.

☐Provide any relief the court deems appropriate and just.

VERIFICATION I, being duly sworn according to law, depose and say that I am the Petitioner in this action and that the facts and statements I have provided in this Motion for the Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings are true and correct to the best of my knowledge, information and belief.

I verify that the statements made are true and correct. I understand that any false statements I have made in this Motion are subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities (perjury).

_______________ Date

_________________________________________ Type Name of Petitioner

____________________________________________ Signature of Petitioner

14

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 69 of 86
Trial Division GCR 01 of 2018 (8-29-18)
Attachment G

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY TRIAL DIVISION, CIVIL

Commonwealth of Pennsylvania :

Plaintiff

vs.

:

[Description of Property Seized] :

Defendant

:

CP - 51- MD -_ _ _ _ _ _ _ - _ _ _ _
OTN # PID DC # PR #

LOCATION OF SEIZURE: _________________________________________

PROPERTY SEIZED FROM: _______________________________________

NAME OF CLAIMANT: ____________________________________________

JURY TRIAL DEMAND

Claimant,

, requests a Jury Trial as provided in Pa.R.C.P.

No. 1007.1 and Phila. Civ.R. *1007.1 and *1007.2.

____________________________________
Claimant Date:

15

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 70 of 86
Trial Division GCR 01 of 2018 (8-29-18)
Attachment H

Commonwealth of Pennsylvania Court of Common Pleas County of Philadelphia 1st Judicial District

NOTICE OF PRETRIAL CONFERENCE Forfeiture Proceedings

Commonwealth v. [Describe Property], Defendant Docket No. CP-51-MD--
Property Receipt No.: Date Seized: Location:

You are hereby DIRECTED to appear for a Pretrial Conference in the above-captioned Forfeiture proceeding to be held as follows:

Date: Time:

Location: Courtroom ___ Justice Juanita Kidd Stout Center for Criminal Justice 1301 Filbert Street Philadelphia, PA 19107

On the above date, a Pretrial Conference will be held. The following issues shall be addressed:
a. Whether the Forfeiture Petition and related documents were served on the owner of the above-referenced property or upon the person or persons in possession of the property at the time of the seizure. If service could not effectuated, the Pretrial Conference will be rescheduled to a date certain to enable the Plaintiff to effectuate service.
b. Whether an Answer was filed. If an Answer has not been filed, whether there is agreement that an Answer may be filed within an agreed-upon period of time.
c. Whether the Claimant is represented by counsel. The Claimant shall be informed that the Claimant is entitled to counsel, but is not entitled to court-appointed counsel.
d. Whether the Claimant has requested, or intends to request, a jury trial. The Claimant shall be informed that the Claimant is entitled to a jury trial, and that in order to obtain a jury trial the Claimant must file a written request for a jury trial no later than twenty (20) days after the service of the last permissible pleading and pay the required Jury fee, $247.94.
e. Whether the proceedings may be resolved by agreement. f. If the Plaintiff and Claimant indicate that an agreement has been reached, the proceeding shall be referred to a
Judge for approval. If a Judge is not available, the case shall be rescheduled before a Judge as soon as practicable. In order to approve the settlement, the Judge must be satisfied that the Claimant is entering into the agreement knowingly, voluntarily and intelligently and that the Claimant understands that he/she is entitled to a hearing on the merits, along with other factors that may be required by law. g. Whether there are any factual issues upon which the parties agree. h. Whether discovery is necessary, and if so, if an Answer has been filed, the terms of discovery and a discovery schedule shall be established. i. Whether the Claimant has filed a Praecipe to Stay Forfeiture Proceedings pursuant to 42 Pa.C.S. § 5805(a)(2)(ii), a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings pursuant to 42 Pa.C.S. §§ 5805(f) and 5806, a Motion for Return of Property pursuant to Pa.R.Crim.P. 588 and Phila. R. Crim. P. *588, or is seeking other post-deprivation relief. j. Whether a trial date can be scheduled or must be scheduled. k. Any other procedural issues impacting the forfeiture of the seized property or the owner(s) thereof.
TO THE CLAIMANT: Should you receive this Notice less than 14 days before the hearing date, and should you be unable to attend the hearing, kindly contact the District Attorney’s office at 215-666-xxxx and request that they ask the Court to continue the hearing to enable you to attend the rescheduled Pretrial Conference.

16

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 71 of 86
PROPOSED CONSENT DECREE ON PLAINTIFFS’ CLAIMS FOR INJUNCTIVE RELIEF
REGARDING THE COURTROOM CLAIMS (CLAIMS THREE, FOUR, SIX, AND SEVEN)
ATTACHMENT 2

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 72 of 86
Important Information: Forfeiture Proceedings and Pretrial Conference
After you are served with a Forfeiture Petition, you should expect to receive notice by mail, within a week or so, from the Court regarding the date of your Pretrial Conference. The date of this Pretrial Conference will be approximately 30 days after you are served with the enclosed Forfeiture Petition. You or your attorney must attend this Pretrial Conference.
When you receive the Notice of Pretrial Conference, if you are unable to attend because of a work commitment or other important obligation, you should contact the District Attorney’s Office as soon as possible and ask them to ask the Court for a continuance so that you can attend the Pretrial Conference on the rescheduled date.
At the Pretrial Conference, if you do not speak or understand the English language, the Court will assign an interpreter according to the Unified Judicial System’s Language Access Plan.
A Trial Commissioner, not a judge, will conduct the Pretrial Conference.
The Forfeiture Proceedings are civil cases and not criminal cases. The court cannot appoint an attorney to represent you in civil cases. You can hire an attorney to represent you. If you want to obtain counsel, and you need time to do so, please let the Trial Commissioner know when your case is called. If you choose to represent yourself, you should know that civil proceedings and civil rules can be complicated, and you will be expected to know and follow all of the rules which apply to civil cases just as lawyers are. Neither the Trial Commissioner nor other court employees are authorized to give you legal advice.
If you are represented in a criminal case which is related to the property seized, you should ask that attorney to help you with this case, or at least to inform you what rights you have.
It is recommended that you retain an attorney, but below is some important information about the civil proceedings if you choose to represent yourself.
1) Civil Forfeiture is an action brought against the offending property and not against any individuals. The guilt or innocence of the property owner is not determinative, and property owners need not be convicted of, or even charged with, any wrongdoing for civil forfeiture to go forward. Civil forfeiture is based on the legal proposition that property— homes, vessels, cars, and even cash—can be guilty of wrongdoing and thereby subject to forfeiture to the government.
2) You have the right to a jury trial in a civil forfeiture case. However, note that there are time limitations governing jury demands and a jury fee must be paid. Under Pa. R.C.P. No. 1007, the right to demand a jury is deemed waived unless a party files a jury demand not later than twenty (20) days after service of the last permissible pleading. A jury demand may be easily included on an Answer and New Matter, or may be endorsed on a separate filing. The Jury fee is $247.94.
3) To dispute the forfeiture and to prevent you from losing your property, you are required to file an Answer to the Forfeiture Petition within 30 days of the date you are served with the Forfeiture Petition by the Commonwealth (the District Attorney or Attorney General’s Office). You may file an Answer on the date of your Pretrial Conference, or

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 73 of 86
you may request additional time to prepare and file your Answer. Answers are not deemed filed until they are received and accepted for filing by the Office of Judicial Records. The Court cannot help you to prepare your Answer. 4) If you have been criminally charged in a case associated with the forfeiture matter, you may file a Praecipe to Stay the Forfeiture Proceedings prior to filing an Answer to the Forfeiture Petition. The forfeiture proceedings will be stayed by the Office of Judicial Records upon receipt of the Praecipe. However, please know that when the stay is lifted, you must file an Answer to the Forfeiture Petition within 30 days from the day the stay is lifted. 5) If you wish to seek the temporary release of your seized property while these forfeiture proceedings are pending, you may also file a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings, pursuant to 42 Pa.C.S. §§ 5805(f) and 5806 at any time after your property has been seized, including during the pendency of the forfeiture proceedings. 6) You and the Commonwealth are permitted to ask written questions and seek documents related to the forfeiture petition. This is called “discovery” and the written questions are called “Interrogatories.” When your case is called, the Commonwealth may serve you with its interrogatories. If you don’t respond to discovery in a timely manner, that is thirty days, then the Commonwealth can ask the court to impose a penalty including default judgment, which is an order by a Judge directing that the property be given to the Commonwealth. The Commonwealth can also obtain a default judgment if you fail to appear for status listings in your case. 7) Based on the information you provide through discovery, the DA’s Office may agree to the return of your property or may agree to a settlement. In such an event, the assistant DA will convey a proposed settlement agreement. If you agree to the settlement, it must be signed by both parties and presented to the judge for approval. If you do not accept the settlement, your case will proceed to trial. 8) You must attend all scheduled Pretrial Conferences, Status Conferences and scheduled hearings or trials. 9) A new law which was recently adopted (Act 13 of 2017) gives the owner of property seized by the Police/Commonwealth the ability, in a civil action or case, to ask the Court to: a) stay (place on hold) the forfeiture proceedings if the owner of the property has been
charged with a crime; b) release the seized property until the case is over; and c) return the property to the owner. 10) The Court of Common Pleas has adopted a General Court Regulation which provides more details about forfeiture proceedings: Trial Division General Court Regulation No. 01 of 2018. It is available on the Court’s website at www.courts.phila.gov/regs.
You should consult an attorney who can give you legal advice on what you need to do to safeguard your property rights in the seized property as well as any legal rights you may have in connection with the criminal case.

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 74 of 86
PROPOSED CONSENT DECREE ON PLAINTIFFS’ CLAIMS FOR INJUNCTIVE RELIEF
REGARDING THE COURTROOM CLAIMS (CLAIMS THREE, FOUR, SIX, AND SEVEN)
ATTACHMENT 3

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 75 of 86

Commonwealth of Pennsylvania
Court of Common Pleas
County of Philadelphia 1st Judicial District

NOTICE OF PRETRIAL CONFERENCE Forfeiture Proceedings

Commonwealth v. [Describe Property], Defendant Docket No. CP-51-MD--
Property Receipt No.: Date Seized: Location:

You are hereby DIRECTED to appear for a Pretrial Conference in the above-captioned Forfeiture proceeding to be held as follows:

Date: Time:

Location: Courtroom ___ Justice Juanita Kidd Stout Center for Criminal Justice 1301 Filbert Street Philadelphia, PA 19107

On the above date, a Pretrial Conference will be held. The following issues shall be addressed:
a. Whether the Forfeiture Petition and related documents were served on the owner of the above-referenced property or upon the person or persons in possession of the property at the time of the seizure. If service could not effectuated, the Pretrial Conference will be rescheduled to a date certain to enable the Plaintiff to effectuate service.
b. Whether an Answer was filed. If an Answer has not been filed, whether there is agreement that an Answer may be filed within an agreed-upon period of time.
c. Whether the Claimant is represented by counsel. The Claimant shall be informed that the Claimant is entitled to counsel, but is not entitled to court-appointed counsel.
d. Whether the Claimant has requested, or intends to request, a jury trial. The Claimant shall be informed that the Claimant is entitled to a jury trial, and that in order to obtain a jury trial the Claimant must file a written request for a jury trial no later than twenty (20) days after the service of the last permissible pleading and pay the required Jury fee, $247.94.
e. Whether the proceedings may be resolved by agreement. f. If the Plaintiff and Claimant indicate that an agreement has been reached, the proceeding shall be referred to a
Judge for approval. If a Judge is not available, the case shall be rescheduled before a Judge as soon as practicable. In order to approve the settlement, the Judge must be satisfied that the Claimant is entering into the agreement knowingly, voluntarily and intelligently and that the Claimant understands that he/she is entitled to a hearing on the merits, along with other factors that may be required by law. g. Whether there are any factual issues upon which the parties agree. h. Whether discovery is necessary, and if so, if an Answer has been filed, the terms of discovery and a discovery schedule shall be established. i. Whether the Claimant has filed a Praecipe to Stay Forfeiture Proceedings pursuant to 42 Pa.C.S. § 5805(a)(2)(ii), a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings pursuant to 42 Pa.C.S. §§ 5805(f) and 5806, a Motion for Return of Property pursuant to Pa.R.Crim.P. 588 and Phila. R. Crim. P. *588, or is seeking other post-deprivation relief. j. Whether a trial date can be scheduled or must be scheduled. k. Any other procedural issues impacting the forfeiture of the seized property or the owner(s) thereof.
TO THE CLAIMANT: Should you receive this Notice less than 14 days before the hearing date, and should you be unable to attend the hearing, kindly contact the District Attorney’s office at 215-686-9695 and request that they ask the Court to continue the hearing to enable you to attend the rescheduled Pretrial Conference.

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 76 of 86
PROPOSED CONSENT DECREE ON PLAINTIFFS’ CLAIMS FOR INJUNCTIVE RELIEF
REGARDING THE COURTROOM CLAIMS (CLAIMS THREE, FOUR, SIX, AND SEVEN)
ATTACHMENT 4

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 77 of 86

Commonwealth of Pennsylvania
Plaintiff vs.
[Description of Property Seized] Defendant

:

CP - 51- MD -_ _ _ _ _ _ _ - _ _ _ _

:

:

OTN #

:

PID

:

DC #

:

PR #

LOCATION OF SEIZURE: _________________________________________ OWNER OF PROPERTY: __________________________________________ PROPERTY SEIZED FROM: _______________________________________

NOTICE TO DEFEND: CIVIL ASSET FORFEITURE TO THE CLAIMANT OF WITHIN DESCRIBED PROPERTY:
You are required to file a written Answer to this petition, setting forth your title in, and right to possession of, said property within 30 days from the service hereof, and you are also notified that, if you fail to file the Answer, a decree of forfeiture and condemnation will be entered against the property.
A Pretrial Conference will be scheduled by the Court, and you should expect to receive a Notice of Pretrial Conference within a week or so after the Forfeiture Petition and this Notice to Defend are served on you. The date of the Pretrial Conference should be at least two weeks after you receive the Notice of Pretrial Conference which should allow you to attend the hearing. You or your attorney must attend this Pretrial Conference.
If you have been criminally charged in a case associated with the forfeiture matter, prior to filing an Answer to the Forfeiture Petition, you may file a Praecipe to Stay the Forfeiture Proceedings using the abovereferenced caption and docket number. The forfeiture proceedings will be stayed by the Office of Judicial Records upon receipt of the Praecipe. However, please know that when the stay is lifted, you must file an Answer to the Forfeiture Petition within 30 days from the day the stay is lifted.
If you wish to seek the temporary release of your seized property while these forfeiture proceedings are pending, you may also file a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings, pursuant to 42 Pa.C.S. §§ 5805(f) and 5806 at any time during the pendency of the Forfeiture Proceedings.
Additionally, you should know that you may request a jury trial. However, the request must be made no later than twenty (20) days after the service of the last permissible pleading. You can request a jury either by indicating so on any Answer you file or by submitting and filing a separate request with the Office of Judicial Records, preferably electronically, or by mail or in person at the Justice Juanita Kidd Stout Center for Criminal Justice, Second Floor, Motion Counter, 1301 Filbert Street, Philadelphia, PA.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBILE PERSONS AT A REDUCED FEE OR NO FEE. YOU ARE NOT ENTITLED TO A COURT-APPOINTED LAWYER.
Philadelphia Bar Association Lawyer Referral and Information Service
1101 Market Street, 11th Floor Philadelphia, Pennsylvania 19107
(215) 238-6333 TTY (215) 451-6197
____________________________________
Name: Title: Date:

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 78 of 86
PROPOSED CONSENT DECREE ON PLAINTIFFS’ CLAIMS FOR INJUNCTIVE RELIEF
REGARDING THE COURTROOM CLAIMS (CLAIMS THREE, FOUR, SIX, AND SEVEN)
ATTACHMENT 5

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 79 of 86

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

For Official Use Only - Bar Code

FORM ANSWER – CIVIL FORFEITURE

Answer Must Be Filed with the
Office of Judicial Records
Justice Juanita Kidd Stout Center for Criminal Justice
1301 Filbert Street, Motions Counter (Second Floor) Philadelphia, PA 19107

FOR OFFICIAL USE ONLY- CAPTION (PROPERTY DESCRIPTION)
In Re:
CPCMS No. _ _ -51-_ _ - _ _ _ _ _ _ _ - _ _ _ _

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION – LAW

COMMONWEALTH OF PENNSYLVANIA: v.
_______________________________________________ _______________________________________________ [Case Name Used in the Petition for Forfeiture]

COURT OF COMMON PLEAS TRIAL DIVISION
Case Number:_________________________

ANSWER (AND NEW MATTER)

And now, comes the Petitioner, _________________________________ [full name], pro se, who has the right to possess the property at issue in this proceeding, and hereby answers the Commonwealth’s Complaint as follows:
1. Paragraph 1 is _______________________________________________________________________________________. [admitted, denied, admitted in part and denied in part (explain what part is admitted and what part is denied, and what the true facts are), or denied because I lack knowledge or information sufficient to form a belief as to the truth of the allegation].
2. Paragraph 2 is _______________________________________________________________________________________. 3. Paragraph 3 is _______________________________________________________________________________________. 4. Paragraph 4 is _______________________________________________________________________________________.
5. Paragraph 5 is _______________________________________________________________________________________. 6. Paragraph 6 is _______________________________________________________________________________________. 7. Paragraph 7 is _______________________________________________________________________________________. 8. Paragraph 8 is _______________________________________________________________________________________. 9. Paragraph 9 is _______________________________________________________________________________________. 10. Paragraph 10 is ______________________________________________________________________________________.
11. Paragraph 11 is ______________________________________________________________________________________.
12. Paragraph 12 is ______________________________________________________________________________________. [Attach additional pages for additional paragraphs].

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 80 of 86
NEW MATTER
[If you would like to, write out any other facts that you feel the Court should know. Continue numbering each paragraph. Keep the paragraphs short, stating one fact per paragraph. Attach additional pages if necessary.]

Check the box below if you wish to demand a jury trial: ☐ I hereby demand a jury trial in this case. I understand that this means I will pay the required Jury fee of $247.94.

Respectfully Submitted,

____________________ Date

___________________________________________________ Petitioner [signature]
Full name [print]: ____________________________________
Address: ____________________________________ ____________________________________ ____________________________________
Phone: ____________________________________

VERIFICATION I, being duly sworn according to law, depose and say that I am the Petitioner in this action and I am entitled to lawful possession of the property at issue.
I am the _________________________ of the property. [owner/co-owner/renter/lessee/bailee, etc.] If necessary, I can provide proof thereof.
The facts and statements I have provided in this Answer (and New Matter) are true and correct to the best of my knowledge, information and belief. I understand that any false statements I have made in this Motion are subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities.

______________ Date

_____________________________________ Name of Petitioner

___________________________________________ Signature of Petitioner

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 81 of 86
PROPOSED CONSENT DECREE ON PLAINTIFFS’ CLAIMS FOR INJUNCTIVE RELIEF
REGARDING THE COURTROOM CLAIMS (CLAIMS THREE, FOUR, SIX, AND SEVEN)
ATTACHMENT 6

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 82 of 86

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY TRIAL DIVISION, CIVIL

Commonwealth of Pennsylvania :

Plaintiff

vs.

:

[Description of Property Seized] :

Defendant

:

CP - 51- MD -_ _ _ _ _ _ _ - _ _ _ _
OTN # PID DC # PR #

LOCATION OF SEIZURE: _________________________________________

PROPERTY SEIZED FROM: _______________________________________

NAME OF CLAIMANT: ____________________________________________

PRAECIPE TO STAY FORFEITURE PROCEEDINGS

Claimant,

, requests that pursuant to 42 Pa.C.S. §

5805(a)(2)(ii) and Trial Division General Court Regulation No. 01 of 2018, the Forfeiture Proceedings

be Stayed until the earlier of the disposition of the criminal case(s) related to the seized property

or until Claimant’s request to lift the Stay.

I understand that I may file a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings even after this Stay is granted.

____________________________________
Claimant Date:

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 83 of 86
PROPOSED CONSENT DECREE ON PLAINTIFFS’ CLAIMS FOR INJUNCTIVE RELIEF
REGARDING THE COURTROOM CLAIMS (CLAIMS THREE, FOUR, SIX, AND SEVEN)
ATTACHMENT 7

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 84 of 86

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

Motion for the Release of Seized Property

Pending the Conclusion of the Forfeiture Proceedings

Pursuant to 42 Pa. C.S. §§ 5805(f) and 5806

Motion Must Be Filed with the
Office of Judicial Records

FOR OFFICIAL USE ONLY- CAPTION (PROPERTY DESCRIPTION)
In Re:

Justice Juanita Kidd Stout Center for Criminal Justice 1301 Filbert Street, Motions Counter (Second Floor), Philadelphia, PA 19107
(Petitioner: See Reverse Side for Service Information)

CPCMS No. _ _ -51-MD - _ _ _ _ _ _ _ - _ _ _ _

NAME OF PETITIONER (Person filing this Motion)

PP No.

PETITIONER’S CURRENT ADDRESS

TELEPHONE NO.

Motion for the Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings, pursuant to 42 Pa. C.S. § 5805(f)& § 5806 1) I, the above named Petitioner, represent that I am entitled to lawful possession of the property described and identified below, and request this Honorable
Court to release the property to me pending the conclusion of the Forfeiture Proceedings, and in support of my request I aver as follows:

2) NAME AND ADDRESS OF PERSON IN POSSESSION OF PROPERTY WHEN SEIZED

3) NAME AND ADDRESS OF THE OWNER, IF KNOWN

POLICE PROPERTY RECEIPT NUMBER (Attach Receipt) DATE PROPERTY SEIZED

LOCATION OF PROPERTY WHEN SEIZED

NAME OF LAW ENFORCEMENT OFFICER WHO SEIZED PROPERY, IF KNOWN

BADGE NUMBER, IF KNOWN

DESCRIPTION OF PROPERTY

ADDRESS OF PROPERTY, IF PROPERTY SEIZED IS REAL ESTATE

VIN NUMBER, IF PROPERTY SEIZED IS A MOTOR VEHICLE

ARE THERE ANY PENDING MATTERS RELATED TO THE SUBJECT PROPERTY (SUCH AS FORFEITURE)?

☐ Yes

☐ No

If Yes, Case ID(s) assigned to the pending matter(s):

☐ I have not filed a Motion for the Return of Property pursuant to Pa.R.Crim. P. 588 and Phila.Crim.R. 588. ☐ I have filed a Motion for the Return of Property pursuant to Pa.R.Crim. P. 588 and Phila.Crim.R. 588. The Case ID is:

Basis for the Motion

The legal/factual basis for this motion is/are (more than one may apply, attach additional pages as necessary): ☐ A. The Commonwealth lacked probable cause for the seizure of the property. ☐ B. The likelihood that the Commonwealth will prevail on the merits is low, including overcoming ‘innocent owner’ or other defenses. ☐ C. The balance of equities favors the return of my property during the pendency of the civil forfeiture proceedings because my likely hardship
outweighs the risk that the property will be destroyed, damaged, lost, concealed or transferred. In addition, I aver that:

(In order to set forth the basis on which these requirements have been met attach additional proof or documentation and explain each item in detail if possible)

1. I have a possessory interest in the property.

2. I have sufficient ties to the community to assure that the property will be available at the time of the trial.

3. The hardship I will suffer from the Commonwealth’s continued possession of my property (such as preventing the functioning of my legitimate business, preventing me from working or leaving me homeless) outweighs the risk that the property will be destroyed, damaged, lost, concealed or transferred if the property is returned to me during the pendency of the forfeiture proceeding.

4. The property seized is not contraband, not evidence of a violation of the law, not particularly suited for use in illegal activities, and will not be used to commit additional criminal acts if it is returned to me.
☐ D. Other:_____________________________________________________________________________________________________________

Requested Relief

I request that the Court order the Commonwealth to: ☐Return my property.

☐ Reimburse me for my legal interest in the property.

☐Sever my property from the forfeited property.

☐Provide any relief the court deems appropriate and just.

VERIFICATION I, being duly sworn according to law, depose and say that I am the Petitioner in this action and that the facts and statements I have provided in this Motion for the Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings are true and correct to the best of my knowledge, information and belief.

I verify that the statements made are true and correct. I understand that any false statements I have made in this Motion are subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities (perjury).

_______________ Date

_________________________________________ Type Name of Petitioner

_____________________ _______________________ Signature of Petitioner

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 85 of 86
PROPOSED CONSENT DECREE ON PLAINTIFFS’ CLAIMS FOR INJUNCTIVE RELIEF
REGARDING THE COURTROOM CLAIMS (CLAIMS THREE, FOUR, SIX, AND SEVEN)
ATTACHMENT 8

Case 2:14-cv-04687-ER Document 252-1 Filed 09/18/18 Page 86 of 86

NOTICE OF YOUR RIGHTS

I.

You Have the Right to File a Motion for Return of Property.

If you wish to seek the return of your property, you may file a Motion for Return of Property under Pennsylvania Rule of Criminal Procedure 588 and Philadelphia Criminal Rule 588. You can file the motion at the Justice Juanita Kidd Stout Center for Criminal Justice (“Stout Center”), Second Floor, Motions Counter, 1301 Filbert Street, Philadelphia, PA.

To file a motion, you may use the form motion for return of property that is available at the above location. The form motion is also available online at www.courts.phila.gov/forms. You can file the motion at the Justice Juanita Kidd Stout Center for Criminal Justice (“Stout Center”), Second Floor, Motions Counter, 1301 Filbert Street, Philadelphia, PA.

If you have been arrested or criminally charged, you should consult your attorney before filing a Motion for Return of Property.

II. You Have the Right to File a Motion for the Immediate Release of Your Property on a Temporary Basis While Legal Proceedings Are Pending.

If being deprived of your property is causing you undue hardship, or if you otherwise want to request that your property be released immediately on a temporary basis while these forfeiture proceedings are pending, you may file a Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings, pursuant to 42 Pa. C.S. §§ 5805(f) and 5806 at any time.

You can file the motion at the Justice Juanita Kidd Stout Center for Criminal Justice (“Stout Center”), Second Floor, Motions Counter, 1301 Filbert Street, Philadelphia, PA. To file a motion,
you may use the form Motion for Release of Seized Property Pending the Conclusion of the Forfeiture Proceedings that is available at the above location. A form motion is also available online at www.courts.phila.gov/forms.

III. Your Property May Be Subject to Civil Forfeiture.

Under Pennsylvania law, property seized by police officers may be subject to forfeiture. This means, you may permanently lose your property (or other rights to that property). If you are served with a Forfeiture Petition seeking the forfeiture of the property listed on this Receipt, you should consult a lawyer immediately because to keep your property you will need to promptly respond within certain deadlines.

To contest the forfeiture of your property, you or your attorney must file an Answer within 30 days of being served with the Forfeiture Petition AND you or your attorney must attend the Pretrial Conference, which will be scheduled by the Court to occur approximately 30 days after you receive the Forfeiture Petition.

You should expect to receive a Notice of Pretrial Conference within a week or so after being served with the Forfeiture Petition. The date of the Pretrial Conference should be at least two weeks after you receive the Notice of Pretrial Conference, which should allow you to attend the hearing. You or your attorney must attend this Pretrial Conference.

Additional information regarding the civil forfeiture process is available on the website of the First Judicial District at www.courts.phila.gov. Relevant forms are available at www.courts.phila.gov/forms.

 
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PLAINTIFFS’ UNCONTESTED MOTION AND MEMORANDUM IN SUPPORT OF PRELIMINARY
APPROVAL OF CLASS CERTIFICATION AND CONSENT DECREE ON PLAINTIFFS’ FIFTH AND
SIXTH CLAIMS FOR RELIEF
EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOS SOUROVELIS, DOILA WELCH, NORYS HERNANDEZ, and NASSIR GEIGER, on behalf of themselves and all others similarly situated,
Plaintiffs,

vs.
CITY OF PHILADELPHIA;
JAMES F. KENNEY, in his official capacity as Mayor of Philadelphia;
RICHARD ROSS JR., in his official capacity as Commissioner of the Philadelphia Police Department;
PHILADELPHIA DISTRICT ATTORNEY’S OFFICE;
LAWRENCE S. KRASNER, in his official capacity as District Attorney of Philadelphia;

Civil Action No. 2:14-cv-04687 Assigned to the
Honorable Judge Robreno Special Management Track
PROPOSED CONSENT DECREE ON PLAINTIFFS’ FIFTH AND SIXTH CLAIMS FOR RELIEF

SHEILA A. WOODS-SKIPPER, in her official capacity as Chair of the Administrative Governing Board of the First Judicial District of Pennsylvania;

JACQUELINE F. ALLEN, in her official capacity as a member of the Administrative Governing Board of the First Judicial District of Pennsylvania;

JOSEPH H. EVERS, in his official capacity as Court Administrator of the First Judicial District of Pennsylvania; and

CHARLES A. MAPP, in his official capacity as Chief Deputy Court Administrator of the First Judicial District of Pennsylvania;

Defendants.

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Plaintiffs Christos Sourovelis, Doila Welch, Norys Hernandez, and Nassir Geiger

(“Named Plaintiffs”), on behalf of themselves and all others similarly situated (“Plaintiffs”);

Defendants City of Philadelphia, Mayor James F. Kenney, Police Commissioner Richard J. Ross

Jr. (“City Defendants”); and the Philadelphia District Attorney’s Office and District Attorney

Lawrence S. Krasner (“District Attorney Defendants”) intend to be bound by this Consent

Decree on Plaintiffs’ Fifth and Sixth Claims for Relief and respectfully submit it to the Court for

preliminary approval under Federal Rule of Civil Procedure 23(e).

I.

INTRODUCTION

1. On August 11, 2014, Named Plaintiffs Sourovelis, Welch, and Hernandez—

owners of real property against which civil-forfeiture petitions had been filed in the Court of

Common Pleas of Philadelphia County—commenced this class action challenging the

constitutionality of specific policies and practices of the City Defendants and District Attorney

Defendants in pursuing civil forfeiture.

2. On November 17, 2014, the Named Plaintiffs—now including Nassir Geiger, an

owner of personal property against which civil-forfeiture petitions had been filed in the Court of

Common Pleas—filed a First Amended Class-Action Complaint (“First Amended Complaint”).

On September 15, 2016, the Named Plaintiffs filed a Second Amended Class-Action Complaint

(“Second Amended Complaint”) adding an additional claim and defendants from the First

Judicial District of Pennsylvania.

3. This Consent Decree addresses Plaintiffs’ Fifth and Sixth Claims for Relief

against the City Defendants and the District Attorney Defendants.

4. Plaintiffs’ Fifth Claim for Relief (“Count 5”) alleges that “[t]he City and District

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Attorney Defendants’ policy and practice of retaining forfeited property and its proceeds injects a personal and institutional interest, financial and otherwise, into enforcing civil forfeiture that brings irrelevant and impermissible factors into the investigative and prosecutorial decisionmaking process and thereby creates actual bias, the potential for bias, and/or the appearance of bias” that “violate[s] Plaintiffs’ rights to the fair and impartial administration of justice guaranteed by the Due Process Clause of the Fourteenth Amendment.” (ECF No. 157, ¶¶ 339, 344.)
5. Plaintiffs’ Sixth Claim for Relief (“Count 6”) alleges that “Defendants have a policy and practice of having prosecutors run the forfeiture proceedings, including but not limited to calling the cases, determining whether property owners are in default, and assessing whether any evidence produced by property owners is sufficient,” and that this policy and practice “violates the Due Process Clause of the Fourteenth Amendment,” particularly where the prosecutors, who have “a direct and institutional financial interest in the outcome of the forfeiture proceedings, run those very same forfeiture proceedings.” (ECF No. 157, ¶¶ 348, 350.)
6. The Plaintiffs, City Defendants, and District Attorney Defendants agree that the Due Process Clause of the Fourteenth Amendment guarantees individuals the fair and impartial administration of justice and that the retention and use of forfeited property or its proceeds creates a conflict of interest or the appearance of a conflict that undermines this constitutional guarantee.
7. The Plaintiffs, City Defendants, and District Attorney Defendants, and this Court, by entering this Consent Decree, recognize that this Consent Decree has been negotiated by the
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Parties in good faith and that it is fair, reasonable, adequate, and in the public interest. II. JURISDICTION AND VENUE
8. This Court has jurisdiction over this matter under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343, 2201, and 2202.
9. Venue lies in this judicial district under 28 U.S.C. § 1391. III. DEFINITIONS
10. “Claim Form” means the Court-approved form that is required to make a claim to the Restitutionary Fund and that shall be mailed to each potential member of the Restitutionary Class.
11. “Class Action” means this lawsuit, Sourovelis v. City of Philadelphia, Civil Action No. 14-04687-ER (E.D. Pa.).
12. “Class Counsel” means the Institute for Justice and David Rudovsky of Kairys, Rudovsky, Messing, Feinberg & Lin.
13. “Class Notice” means the Court-approved notice that is required by Federal Rule of Civil Procedure 23(c)(2), (e)(1), and (h)(1) that shall be mailed to each potential member of the Restitutionary Class. The Class Notice includes the Claim Form, instructions for objecting to the Consent Decree or requesting exclusion from the Restitutionary Class, and the form required to object or request exclusion from the Restitutionary Class.
14. “Common Law Forfeiture” means a conviction-based, civil in personam forfeiture proceeding as defined in Commonwealth v. 2010 Buick Enclave, 99 A.3d 163 (Pa. Commw. Ct. 2014) that is commenced by the District Attorney’s Office, to the extent such proceedings are still recognized in Pennsylvania.
15. “Consent Decree” means this Consent Decree on Plaintiffs’ Fifth and Sixth Page 4 of 25

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Claims for Relief in the complaints in this action. 16. “Court” means the United States District Court for the Eastern District of
Pennsylvania, or United States District Judge Eduardo C. Robreno. 17. “Cy Pres Recipients” means the nonprofit and/or community-based public service
organizations agreed to by District Attorney Larry Krasner and Class Counsel (or selected by the Court) to receive Unclaimed Funds.
18. “District Attorney” means Philadelphia District Attorney Lawrence S. Krasner and any official successors.
19. “District Attorney’s Office” means the Office of the District Attorney of Philadelphia, all of its divisions, subdivisions, and all of its agents and employees.
20. “Diversionary Disposition” means dispositions entered pursuant to any of the following non-trial programs that allow criminal defendants to resolve the charges against them and avoid convictions and collateral consequences that may result from their arrest: Accelerated Misdemeanor Program (Tier I and II); Accelerated Rehabilitation Disposition; Domestic Violence Diversion; Drug Treatment Court; DUI Treatment Court and DUI Intermediate Punishment; Future Forward; Intermediate Punishment—non-DUI (County and State); Mental Health Court, Project Dawn Court; Sexual Education and Responsibility; Small Amount of Marijuana; Summary Diversion Program; TCY (formerly known as The Choice is Yours); and Veteran’s Court.
21. “Effective Date” shall be the date on which the Court enters an order giving final approval to this Consent Decree.
22. “Escrow Account” means an interest bearing-account established by the Class
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Counsel, or other Claim Administrator they designate, for the purpose of depositing the Settlement Amount as provided herein.
23. “Fairness Hearing” means the hearing held by the Court under Federaul Rule of Civil Procedure 23(e) (2).
24. “First Judicial District Defendants” means President Judge Sheila A. WoodsSkipper, Judge Jacqueline F. Allen, Court Administrator Joseph H. Evers, Chief Deputy Court Administrator Charles A. Mapp, and any official successors of the First Judicial District of Pennsylvania.
25. “Forfeiture Petition” means a petition commencing an action seeking Common Law Forfeiture, Statutory Forfeiture, or other forfeiture filed by the District Attorney’s Office in the Court of Common Pleas.
26. “Notice Date” means the date of direct mailing of the Class Notice as required by the Court’s order granting preliminary approval.
27. “Parties” means the Named Plaintiffs, any class of Plaintiffs certified by the Court for the purposes of this Consent Decree, the City Defendants, and the District Attorney Defendants in Sourovelis v. City of Philadelphia, Civil Action No. 14-04687-ER (E.D. Pa.)
28. “Released Parties” means the City of Philadelphia, the Philadelphia District Attorney’s Office, and all current and former officials, employees, and agents of both of these Defendants.
29. “Restitutionary Fund” means the $3,000,000.00 fund created by the City and District Attorney Defendants from which members of the Restitutionary Class can make a claim.
30. “Restitutionary Class” means the members of the proposed class definition at
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Paragraph 32 who do not validly and timely request exclusion from the class under the conditions and procedures for exclusion as determined by the Court and described in the Class Notice issued in connection with the Court’s order granting preliminary approval of this Consent Decree.
31. “Statutory Forfeiture” means a forfeiture proceeding commenced in the Court of Common Pleas pursuant to any statutory provision authorizing the forfeiture of property— principally, the Controlled Substances Forfeiture Act, newly retitled as “Forfeiture of Assets” in 2017, 42 Pa. Cons. Stat. §§ 5801 et seq. Other Statutory Forfeiture provisions under Pennsylvania law include, but are not limited to: 4 Pa. Cons. Stat. § 1518(f) (Gaming Act); 18 Pa. Cons. Stat. § 910(c.1) (theft of telecommunications services); 18 Pa. Cons. Stat. § 2506(f) (drug delivery resulting in death); 18 Pa. Cons. Stat. § 3021 (human trafficking); 18 Pa. Cons. Stat. §§ 3141 et seq. (sexual offenses); 18 Pa. Cons. Stat. § 4116(i) (unauthorized copying of recorded materials); 18 Pa. Cons. Stat. § 4119(f) (trademark counterfeiting); 18 Pa. Cons. Stat. § 5554 (formerly § 5551) (cruelty to animals); 18 Pa. Cons. Stat. § 5513(b) (gambling devices); 18 Pa. Cons. Stat. § 5707 (Wiretapping and Electronic Surveillance Control Act); 18 Pa. Cons. Stat. § 6110.1(d) (possession of a firearm by minor); 18 Pa. Cons. Stat. § 6314(f) (trafficking drugs to minors); 18 Pa. Cons. Stat. § 6321(e) (transmission of sexually explicit images by minor); 18 Pa. Cons. Stat. § 6501(b)(5) (formerly, § 6501(b) and (d)) (scattering rubbish); 18 Pa. Cons. Stat. § 7508(e) (drug trafficking sentencing and penalties); 18 Pa. Cons. Stat. § 7707 (vehicle chop shop; illegally obtained and altered property); 27 Pa. Cons. Stat. § 6208(f) (waste transportation violation); 37 Pa. Cons. Stat. § 511 (conducting field investigation of Commonwealth property without permit); 18 Pa. Cons. Stat. § 2717(b.1) (formerly, 42 Pa. Cons.
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Stat. § 6801.1) (terrorism forfeiture); 75 Pa. Cons. Stat. § 4909(c) (transportation of foodstuffs in vehicles used to transport waste); 75 Pa. Cons. Stat. §§ 9405-06 (importing fuels without permit); 3 P.S. § 459-211(c)(1)(v), (d)(4) (Dog Law); 35 P.S. § 831.1 (forfeiture for storage or transportation of drugs); 35 P.S. §§ 6018.101 et seq. (Solid Waste Management Act); 43 P.S. §§ 1311 et seq. (Public Employee Pension Forfeiture Act); 47 P.S. § 6-602 (Liquor Code violation); 53 P.S. § 4000.1715 (Municipal Waste Act); 68 P.S. § 46 (restrictions on acquisition of agricultural lands by certain aliens); and 72 P.S. § 8285 (cigarette-tax violations). IV. AMENDMENT OF THE COMPLAINT
32. The Parties stipulate that, by September 18, 2018, Plaintiffs may move for leave to file a Third Amended Complaint that alleges the existence of a Rule 23(b)(3) class for Counts 5 and 6 of the Second Amended Complaint. The City Defendants and the District Attorney Defendants agree not to contest this motion. V. CERTIFICATION OF THE RESTITUTIONARY CLASS
33. The Parties agree and propose that class certification of the following Restitutionary Class is proper under Rule 23:
All persons who held or hold legal title to, or otherwise had or have a legal interest in property against which a Statutory or Common Law civil-forfeiture petition (i) was pending in the Court of Common Pleas of Philadelphia County as of August 11, 2012; or (ii) was filed in the Court of Common Pleas of Philadelphia County on or after August 11, 2012 until the date the Court grants preliminary approval. 34. The Parties agree and propose that the Restitutionary Class is properly certified as a settlement class under Fed. R. Civ. P. 23(a) and 23(b)(2) for injunctive relief on Counts 5 and 6.
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35. The Parties agree and propose that the Restitutionary Class is also properly certified as a settlement class under Fed. R. Civ. P. 23(a) and 23(b)(3) to the extent restitutionary relief on Counts 5 and 6 constitutes non-incidental, monetary damages.
36. Specifically excluded from the Restitutionary Class are the City Defendants, the District Attorney Defendants, the First Judicial District Defendants, and any of their officers, employees, affiliates, or their parents, spouses, children, or siblings. VI. PERMANENT INJUNCTION
37. As part of this Consent Decree, the Court permanently enjoins the City Defendants and the District Attorney Defendants from using revenue derived from any Statutory, Common Law, civil, or criminal forfeiture to fund either (i) the District Attorney’s Office or the Philadelphia Police Department, or (ii) any other law-enforcement purpose.
38. “Law-enforcement purpose” includes, but is not limited to, the following expenditures of the City Defendants and the District Attorney Defendants: (a) compensation— including base pay, overtime, holiday, and stress pay for City and District Attorney personnel, and (b) non-payroll expenses—including municipal task force support, equipment, vehicles, real estate, facilities, supplies, confidential case expenditures, investigative expenses, data processing, education, training, travel, shared forfeitures, witness relocation or other witness protection expenses, or capital improvements.
39. “Law-enforcement purpose” does not include community-based drug prevention and treatment programs, external to the District Attorney’s Office or the Philadelphia Police Department.
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40. Specifically exempted from the definition of “law-enforcement purpose” (and therefore permissible expenditures) are payments for the following expenditures of the District Attorney’s Office, provided that the payments do not exceed, in the aggregate, 0.25% of the total expenditures of the District Attorney’s Office for the Fiscal Year in which they are made:
a. service of process in forfeiture cases; b. maintenance and registration of seized vehicles; c. locksmiths, handymen, and landscapers who maintain or repair seized real
property; d. advertising of auctions of forfeited property; and e. the sealing and unsealing of abandoned real property subject to seizure. VII. THE RESTITUTIONARY FUND AND ALLOCATION OF MONIES TO THE RESTITUTIONARY CLASS 41. On the date the Court enters an order granting preliminary approval of this Consent Decree, the City Defendants and the District Attorney Defendants shall make a payment of $100,000 to the Escrow Account by check to cover initial administration costs of the Restitutionary Fund. 42. If no timely objections are received, the City Defendants and the District Attorney Defendants shall make payment of the balance of the Restitutionary Fund to the Escrow Account by check within forty-five (45) days of the Effective Date. If timely and valid objections are received, the City Defendants and the District Attorney Defendants will make payment of the balance within forty-five (45) days of when the Court’s final judgment and order in the Class Action becomes final. As used in this paragraph, “final” means the expiration of the time for the noticing of any appeal regarding the Court’s final judgment or moving to alter or amend under
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Federal Rule of Civil Procedure 59; the date of final affirmance of any appeal therefrom, including re-hearing of any such appeal; or the final dismissal of any appeal or proceedings on review, whichever is latest.
43. The following process will be used to effectively and fairly allocate the Restitutionary Fund among the Restitutionary Class.
44. All exclusion notices and objection papers must be filed with the Court within sixty (60) days from the Notice Date as set by the Court’s order granting preliminary approval of this Consent Decree.
45. If more than five hundred (500) individuals request exclusion, then the City Defendants and District Attorney Defendants shall have the right to terminate this Consent Decree. In the event of such a termination, the terms and provisions of this Consent Decree shall have no further force and effect with respect to the Parties and shall not be used, as evidence or otherwise, in the Class Action.
46. Except as provided by Paragraph 56, all costs of administering claims shall be drawn from the Restitutionary Fund.
47. Following the payment of administration costs, the Claims Administrator will distribute the Restitutionary Fund as follows.
a. $90.00 shall be paid to each member of the Restitutionary Class; (The Parties may alter this presumptive $90 distribution after the Parties receive the total number of claims from members of the Restitutionary Class so that this distribution does not deplete the Restitutionary Fund.)
b. Each of the court-appointed class representatives shall receive an incentive
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award payment of $2,500.00. c. Members of the Restitutionary Class, who were neither convicted nor
received a Diversionary Disposition in the criminal case associated with their forfeiture, shall then receive 100% of the value of their forfeited property, provided that the sum of such payments, the payments set forth in Paragraphs 46(a) & (b) and the costs of administration does not exceed $3,000,000.00. If this sum does exceed $3,000,000.00, then these members of the Restitutionary Class shall each receive a pro rata percentage of the value of their forfeited property that draws the Restitutionary Fund down to $0.00. d. If monies remain in the Restitutionary Fund after the payments outlined in Paragraph 46(a)-(c), and costs of administration are made, then members of the Restitutionary Class who received Diversionary Dispositions in the criminal case associated with their forfeiture shall receive 75% of the value of their forfeited property, provided that the sum of such payments, plus the payments outlined in Paragraph 46(a)-(c) does not exceed $3,000,000.00. If this sum does exceed $3,000,000.00, then these members of the Restitutionary Class shall receive a pro rata percentage of the value of their forfeited property that draws the Restitutionary Fund down to $0.00. e. After 90 days, the balance of the Restitutionary Fund following the above payments shall be declared a “Remainder Fund.” Seventy-five percent
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(75%) of the Remainder Fund, up to $375,000, shall be returned to the City of Philadelphia. All remaining funds shall be Unclaimed Funds to be used in accordance with Section X (Paragraphs 60-64) below. 48. For purposes of Paragraph 46, the value of forfeited property is the total amount of cash forfeited or the auction or sale price of real or other personal property. 49. Heirs or estates of potential members of the Restitutionary Class may submit a claim to the Restitutionary Fund. VIII. ENTRY OF ORDER GRANTING PRELIMINARY APPROVAL AND DIRECTING NOTICE TO CLASS 50. On September 18, 2018, Plaintiffs will move for preliminary approval of class certification and this Consent Decree on Plaintiffs’ Fifth and Sixth Claims for Relief. Plaintiffs’ motion will attach this Consent Decree on Plaintiffs’ Fifth and Sixth Claims and request an order: a. Granting preliminary approval of this Consent Decree; b. Finding that the proposed Restitutionary Class preliminary satisfies all necessary prerequisites of Fed. R. Civ. P. 23(a) and the relevant requirements of Rule 23(b); c. Appointing the Named Plaintiffs as class representatives for Restitutionary Class; d. Appointing the Institute for Justice and David Rudovsky as Class Counsel; e. Approving the Class Notice and ordering that it be directed to potential members of the proposed Restitutionary Class in the manner set forth in the Court’s order granting preliminary approval;
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f. Providing procedures and deadlines for individuals to object to or request exclusion from the Restitutionary Class and the terms of this Consent Decree;
g. Providing that objections by any member of the Restitutionary Class to this Consent Decree shall be heard and any papers submitted in support of said objections shall be considered by the Court at the final Fairness Hearing only if, on or before a date to be specified in the order granting preliminary approval, the objector files with the Court a notice of his or her intention to appear, submits documentary proof that he or she is a member of the proposed Restitutionary Class, states the basis for his or her objections, and serves copies of the foregoing papers and all other papers in support of the objections upon counsel for the Parties, as directed in the Class Notice.
h. Scheduling the final Fairness Hearing to be held by the Court; and i. Providing that the final Fairness Hearing may, from time to time without
further notice to the Restitutionary Class, be continued or adjourned by order of the Court. The City Defendants and the District Attorney Defendants agree not to contest this motion. IX. THE NOTICE PLAN 51. Within ten (10) days after the Plaintiffs move for preliminary approval of this Consent Decree, the City Defendants and District Attorney Defendants must serve a notice of the Consent Decree under the Class Action Fairness Act, 28 U.S.C. § 1715, upon the Attorney
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General of the United States and the appropriate State official, as defined in 28 U.S.C. § 1715(a)(2).
52. The following process describes the Parties’ plan for providing notice to the proposed Restitutionary Class (“Notice Plan”).
53. Within fourteen (14) days of the Court’s order granting preliminary approval of class certification of the Restitutionary Class and this Consent Decree on Plaintiffs’ Fifth and Sixth Claims for Relief, the City Defendants (or an entity that they select) will mail by first class the Court-approved Class Notice to potential members of the Restitutionary Class at the lastknown address of those members.
54. The City Defendants and District Attorney Defendants will consult with and coordinate with Class Counsel and the Claims Administrator to ensure that the measures taken to search for and locate addresses for potential class members and mail the Class Notice are designed to effectively reach as many potential members of the Restitutionary Class as possible.
55. Upon the request of the Class Administrator, the City Defendants shall undertake reasonable efforts to provide the Claims Administrator with tax, water, utility, Philadelphia Parking Authority, and other records containing the addresses and email addresses of potential members of the Restitutionary Class.
56. The City Defendants shall use the mailing addresses of class members that are in the possession of the District Attorney’s Office, unless the City Defendants’ reasonable search of the records outlined in Paragraph 54 reveals that a class member has a different mailing address, in which case the Class Administrator shall update the database of addresses provided by the District Attorney’s Office, and provide the updated database to the City Defendants prior to the
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mailing of the Class Notice. The database of potential class members shall not be retained or used for any other purpose by the City Defendants or the District Attorney Defendants.
57. The City of Philadelphia shall bear the cost of an initial printing as well as of a single, first-class mailing of the Class Notice to each potential member of the Restitutionary Class at each member’s most recent address.
58. The Claims Administrator will establish a website to publish the Class Notice and other pertinent documents and information about the litigation and the Consent Decree. The website will provide for electronic submission of the Claim Form with a digital signature.
59. Within two (2) business days of the Court entering an order granting preliminary approval of class certification and this Consent Decree, the Parties will post the Class Notice and link to the website created by the Claims Administrator on their respective websites and monthly during the Class Notice Period on their social media accounts (Facebook, Twitter).
60. After the Court enters an order granting preliminary approval, Class Counsel, at their own expense, may take additional measures to publicize this Consent Decree to potential members of the Restitutionary Class. X. UNCLAIMED FUNDS
61. Any portion of the Restitutionary Fund that remains after all distributions to the Restitutionary Class and any return to the City of Philadelphia in accordance with Paragraph 46(e) occur, shall be considered Unclaimed Funds.
62. Upon determining the total amount of Unclaimed Funds (if any), District Attorney Lawrence S. Krasner (or his designee) and Class Counsel will mutually select organizations to receive that portion of Unclaimed Funds (the Cy Pres Recipients) and the amount to be given to
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each selected organization. 63. The Parties intend that the Cy Pres Recipients will be nonprofit and/or
community-based public service organizations located in and/or providing services in those Philadelphia communities most heavily affected by forfeiture practices.
64. The Parties shall also endeavor to solicit the support of third-party organizations and individuals to match the Unclaimed Funds designated for donation to Cy Pres Recipients.
65. If District Attorney Lawrence S. Krasner (or his designee) and Class Counsel are unable to agree on the selection of the Cy Pres Recipients or the amounts to be given to the Cy Pres Recipients, the matter shall be referred to the Honorable Eduardo C. Robreno for final resolution consistent with the terms of this provision. XI. EXCLUSION RIGHTS & OBJECTIONS
66. Potential members of the Restitutionary Class have the right to exclude themselves and not be bound by this Consent Decree by providing to the Claims Administrator a timely completed opt-out form or objection, as described in the Court’s order granting preliminary approval.
67. Potential members of the Restitutionary Class who timely request exclusion shall be excluded from this Consent Decree and from the Restitutionary Class. Exclusion rights must be exercised by the deadline set forth in the Court’s order granting preliminary approval. Objections must be filed by the deadline set forth in the Court’s order granting preliminary approval. The deadline for exclusion and objection should be the same date. Within ten (10) days after the deadline for any exclusions or objections, the Claims Administrator shall provide all Parties with a complete list of all timely and valid exclusions and objections.
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68. On or before the deadline to object to this Consent Decree specified in the Court’s order granting preliminary approval, an objector must file with the Court a notice of his or her intention to appear, must submit documentary proof that he or she is a member of the defined Restitutionary Class, state the basis for the objections, and serve copies of the foregoing papers and all other papers in support of the objections upon counsel for all the Parties to this Consent Decree, as directed in the Class Notice. The Parties shall jointly oppose all objections and appeals to and/or from this Consent Decree at their own expense. The Parties shall submit joint opposition papers and appear before the Court to contest any and all objections or appeals.
69. Any member of the Restitutionary Class who does not submit a properly completed form requesting exclusion by the deadline set forth in the Court’s order granting preliminary approval shall be considered part of the Restitutionary Class and shall be bound by the terms of this Consent Decree and the final judgment in this Class Action. XII. THE FINAL JUDGMENT
70. Before the Fairness Hearing, the Parties shall submit to the Court a proposed order substantially in the form of a final judgment:
a. Approving this Consent Decree, judging its terms to be fair, reasonable and adequate; directing consummation of its terms; and retaining jurisdiction to effectuate and interpret same.
b. Dismissing Counts 5 and 6 on the merits, with prejudice and without costs with respect to the Released Parties and finding that there is no just cause for delay in the entry of final judgment.
c. Permanently barring and enjoining all members of the Restitutionary Class
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who neither request exclusion nor file a claim pursuant to this Consent Decree from asserting any claims against the Released Parties arising from or related to the Class Action and binding the Restitutionary Class to the terms of this Release. The terms of the final judgment in this Class Action shall have the same effect as if such persons had made appropriate claims. XIII. RELEASES 71. Upon the date the court’s final judgment and order becomes “final” as defined in Paragraph 42, each member of the Restitutionary Class shall be deemed to have, and by operation of and as set forth in the final judgment, fully, finally, and forever released, relinquished, and discharged all claims arising from the facts alleged in this Class Action against the City Defendants and District Attorney Defendants. This release of claims shall not be construed to prevent Plaintiffs from enforcing any provisions of this Consent Decree. XIV. ATTORNEYS’ FEES 72. The City Defendants and the District Attorney Defendants shall not oppose a petition from Plaintiffs or Class Counsel to receive $2,630,000.00 in attorneys’ fees from the City Defendants, the District Attorney Defendants, and the First Judicial District Defendants, with half of this amount being paid within forty-five (45) days of the Court entering an order granting preliminary approval of this Consent Decree, and the other half being paid on or before August 30, 2019. 73. Class Counsel agrees not to file a fee petition for more than $2,630,000.00 nor seek recovery of fees arising from obtaining approval of this Consent Decree, litigating appeals by third-parties of such approval, or monitoring compliance with this Consent Decree. However,
Page 19 of 25

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Plaintiffs and Class Counsel may seek attorneys’ fees related to enforcing any provision of this Consent Decree.
74. Class Counsel agrees not to receive interest on the second payment of attorneys’ fees.
75. Should the Court award less than $2,630,000.00 in attorneys’ fees, that decision shall have no impact on the remainder of this Agreement.
76. Moreover, if the Consent Decree on Plaintiffs’ Claims for Injunctive Relief Regarding the Courtroom Claims does not obtain full and final approval, Class Counsel shall return the full amount of the first attorneys’ fees payment within forty-five (45) days of the court order denying or vacating final approval of that consent decree.
77. In the event this Class Action proceeds to litigation, nothing in this agreement precludes the ability of Plaintiffs or Class Counsel to seek all reasonable attorneys’ fees and costs to which they are entitled by law. XV. OTHER PROVISIONS OF THE SETTLEMENT
78. The Released Parties shall bear no expenses, costs, damages or fees alleged or incurred by Plaintiffs or any member of the Restitutionary Class, or by any of their attorneys, experts, advisors, agents or representatives arising out of, relating to or in connection with the Class Action, except as specifically set forth in this Consent Decree.
79. The terms and provisions of this Consent Decree shall have no further force and effect with respect to the Parties and shall not be used in the Class Action in the event that this Consent Decree is not approved by the Court or does not become final for any reason.
80. The Parties agree that, to the fullest extent permitted by law, neither this Consent
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Case 2:14-cv-04687-ER Document 253-1 Filed 09/18/18 Page 22 of 26
Decree, nor any act performed or document executed pursuant to or in furtherance of this Consent Decree: (i) is or may be deemed to be or may be used as an admission of, or evidence of, the validity of any claim, or of any wrongdoing or liability of the Released Parties; (ii) is or may be deemed to be or may be used as an admission of, or evidence of, any fault or omission of the Released Parties in any civil, criminal, arbitration or administrative proceeding in any court, administrative agency or other tribunal, other than in such proceedings as may be necessary to consummate or enforce this Consent Decree or the final judgment in this Class Action, except that the Parties may file this Consent Decree and/or the final judgment in this Class Action in any action that may be brought against any of them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith and settlement, judgment bar or reduction or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim.
81. The undersigned represent that they are fully authorized to execute and enter into the terms and conditions of this Consent Decree on behalf of their respective clients.
82. This Consent Decree contains the entire agreement between the Parties and supersedes any prior agreements or understandings between them. All terms of this Consent Decree are contractual and not mere recitals and shall be construed as if drafted by all Parties. The terms of this Consent Decree are and shall be binding upon, and shall inure to the benefit of, each of the Parties, including their respective agents, attorneys, employees, successors, and assigns, and upon all other persons claiming any interest in the subject matter hereto through any of the parties hereto, including any member of the Restitutionary Class.
83. This Consent Decree may be modified only by a written instrument signed by or
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Case 2:14-cv-04687-ER Document 253-1 Filed 09/18/18 Page 23 of 26
on behalf of all the Parties or their successors-in-interest and approved by the Court. 84. This Consent Decree may be executed in one or more counterparts. All executed
counterparts and each of them shall be deemed to be one and the same instrument. 85. The Court shall have jurisdiction over the implementation, interpretation and
execution of this Consent Decree, with respect to all the Parties and all beneficiaries, including all members of the Restitutionary Class. Any and all requests or petitions regarding the enforcement, construction, or interpretation of the Consent Decree, and orders on the final judgment entered by the Court, or the conduct of the policies and procedures described herein must be made, if at all, by motion to the Court.
86. The rights and obligations of the Parties to this Consent Decree shall be construed and enforced in accordance with and governed by the laws of the Commonwealth of Pennsylvania.
87. None of the Parties to this Consent Decree shall be considered to be the drafter of this Consent Decree or any provision for the purpose of any statute, case law, or rule of construction that would or might cause any provision to be construed against the drafter, and this Consent Decree shall be deemed a common effort of the parties. Respectfully submitted,
Page 22 of 25

Case 2:14-cv-04687-ER Document 253-1 Filed 09/18/18 Page 24 of 26 For Plaintiffs

INSTITUTE FOR JUSTICE
~~~.&s~ ~
Robert P. Frommer* Dan Alban* Robert Peccola* Milad Emam* 901 North Glebe Road, Suite 900 Arlington, VA 22203 Email: dsheth@ij .org; rfrommer@ij.org; dalban@ij.org; rpeccola@ij.org memam@ij.org Tel: (703) 682-9320 Fax: (703) 682-9321 *Admitted Pro Hae Vice
Counsel/or Plaintiffs

KAIRYS, RUDOVSKY, MESSING, FEINBERG &LIN
David Rudovsky (I.D. Number 15168) The Cast Iron Building 718 Arch Street Suite 501 South Philadelphia, PA 19106 Tel: (215) 925-4400 Email: drudovsky@krlawphila.com
Local Counsel for Plaintiffs

Page 23 of25

Case 2:14-cv-04687-ER Document 253-1 Filed 09/18/18 Page 25 of 26

For tile District Attorney Defenda11ts

Date:

9 {I\ / I 9

~~~~~~~,~---~~~~~~

By:/~ /l- sX/•~'

DISTRICT A ' ORNEY LAWRENCE S. KRASNER

·~

By:~/s~/~~~~~~~~~~~~~ OFFICE OF THE DISTRICT ATIORNEY Peter Carr
Douglas M. Weck, Jr. Nancy Winkelman Three South Penn Square Philadelphia, PA 19107 Tel: (215) 686-8787 Email: peter.carr@phila.gov; douglas.weck@phila.gov; nancy.winkelman@phila.gov
Counselfor Defendants Philadelphia District Attorney's Office and District Allorney Lawrence S. Krasner

Page 24 of25

Case 2:14-cv-04687-ER Document 253-1 Filed 09/18/18 Page 26 of 26
For the City Defendants
By:/s/ ~te£1,ii}
CITY sOLICIRMARcE~. PRATT
By: ~/s/_ f_tl_!Z_ ?_t___
CITY OF PHILADELPHIA LAW DEPARTMENT
Michael R. Miller 1515 Arch Street, 14th Floor Philadelphia, PA 19102 Tel: (215) 683-5444 Email: michael.r.miller@phila.gov Counsel for Defendants City ofPhiladelphia, Mayor James F. Kenney, and Police Commissioner Richard Ross Jr.
Page 25 of25
....

 
 Case 2:14-cv-04687-ER Document 272 Filed 04/30/19 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOS SOUROVELIS, et al., Plaintiffs,
v. CITY OF PHILADELPHIA, et al.,
Defendants.

: CIVIL ACTION : No. 14-4687 : : : : : : :

ORDER AND NOW, this 30th day of April, 2019, upon consideration of “Plaintiffs’ Uncontested Motion and Memorandum in Support of Preliminary Approval of Class Certification and Consent Decree on Plaintiff’s Fifth and Sixth Claims for Relief” and “Plaintiffs’ Uncontested Motion and Memorandum in Support of Preliminary Approval of Class Certification and Consent Decree on Plaintiff’s Fifth and Sixth Claims for Relief” (ECF Nos. 252 & 253), and after a October 16, 2018 hearing and various posthearing discussions, it is hereby ORDERED that the motions are GRANTED. It is hereby further ORDERED that: 1. The Court preliminarily certifies the following settlement classes as they appear to meet the requirements of Fed. R. Civ. P. 23(a), as well as (b)(2) (for the injunctive claims) and (b)(3) and the Third Circuit’s ascertainability requirement (for the monetary claims).

1

Case 2:14-cv-04687-ER Document 272 Filed 04/30/19 Page 2 of 4
a. For purposes of the Third, Fourth, and Seventh
Claims for Relief in the Second Amended Complaint (the “First
Injunctive Class”), the settlement class shall consist of:
All persons holding legal title to or otherwise having a legal interest in real or personal property: (i) which was the subject of civil-forfeiture or return-of-property proceedings as of August 11, 2012; or (ii) which had been seized on or after August 11, 2012; or (iii) which was or will be the subject of a forfeiture petition or a returnof-property, or related proceeding in the Court of Common Pleas of Philadelphia County on or after August 11, 2012.
b. For purposes of the injunctive portion of the
Sixth Claim for Relief in the Second Amended Complaint (the
“Second Injunctive Class”), the settlement class shall consist of:
All persons receiving a notice directing them to appear in, or who appeared in, Courtroom 478 for forfeiture, return-of-property, or related proceedings from August 11, 2012 until January 6, 2016.
c. For purposes of Fifth and Sixth Claims for
Relief seeking monetary restitution (the “Restitutionary Class”):
All persons who held or hold legal title to, or otherwise had or have a legal interest in property against which a Statutory or Common Law civil-forfeiture petition (i) was pending in the Court of Common Pleas of Philadelphia County as of August 11, 2012; or (ii) was filed in the Court of Common Pleas of Philadelphia County on or after August 11, 2012 until the date the Court grants preliminary approval.
2. The Court preliminarily approves the proposed
Consent Decrees as amended because, after considering the factors
described in In re Prudential Ins. Co. America Sales Practice
Litig. Agent Actions, 148 F.3d 283, 323 (3d Cir. 1998) and Girsh
v. Jepson, 521 F.2d 153, 156 (3d Cir. 1975), the Court concludes
2

Case 2:14-cv-04687-ER Document 272 Filed 04/30/19 Page 3 of 4
that the Consent Decrees facially appear to be fair, reasonable, and adequate under Fed. R. Civ. P. 23(e)(2).
3. Upon consideration of the factors in Fed. R. Civ. P. 23(g), the Court appoints the Institute for Justice and David Rudovsky, Esq. of Kairys, Rudovsky, Messing, Feinberg & Lin as Class Counsel.
4. The Court appoints Plaintiffs Christos Sourovelis, Doila Welch, Norys Hernandez, and Nassir Geiger as representative of the settlement classes.
5. The Court approves the notice plan, including the proposed form of notice (ECF No. 271-1), and finds that it is reasonable and adequate and meets the requirements of Fed. R. Civ. P. 23(c)(2) and (e).
6. The Court directs the Defendants to provide notice to all class members substantially in the form shown in ECF No. 271-1 and in the manner described in the Consent Decrees by May 23, 2019.
7. Restitutionary Class Members shall submit their claim forms to the Claims Administrator by August 26, 2019.
8. Members of the Injunctive Classes shall submit any objections to the applicable Consent Decree1, and members of the Restitutionary Class shall submit any objections to the applicable

1

Class members may not opt-out of the two Injunctive

Classes.

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Case 2:14-cv-04687-ER Document 272 Filed 04/30/19 Page 4 of 4
Consent Decree or request exclusion from the Restitutionary Class and the terms of the Consent Decree by August 26, 2019.
9. If an objecting Class Member wishes to be heard at the Final Fairness Hearing (see ¶ 11), he or she must: file with the Court a notice of his or her intention to appear; submit documentary proof that he or she is a member of the class; state the basis for his or her objections; and serve copies of the foregoing papers upon counsel for the parties, as directed in the Class Notice by September 10, 2019.
10. The motion for final approval of the Consent Decrees and any papers the parties wish to submit in support of final approval of the Consent Decrees shall be filed with the Court by October 11, 2019.
11. The Court will hold a final fairness hearing on Friday, November 1, 2019 at 9:00 a.m. in Courtroom 15A, U.S. Courthouse, 601 Market Street, Philadelphia, PA to consider the propriety of final settlement approval in light of any written objections, opt-outs, or requests to be heard.
AND IT IS SO ORDERED.
/s/ Eduardo C. Robreno EDUARDO C. ROBRENO, J.
4

 
 Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOS SOUROVELIS, et al., Plaintiffs,
v. CITY OF PHILADELPHIA, et al.,
Defendants.

: CIVIL ACTION : No. 14-4687 : : : : : : :

M E M O R A N D U M

EDUARDO C. ROBRENO, J.

JANUARY 27, 2021

Table of Contents
I. BACKGROUND .............................................................. 3 A. Factual Background and Procedural History ........................... 3 B. The Proposed Class Action Settlement ................................ 6 1. The Class ........................................................... 6 2. The Proposed Terms of the Consent Decree ............................ 7
II. DISCUSSION............................................................ 10 A. Whether Class Certification Is Proper .............................. 11 1. Rule 23(a) Factors ................................................. 12 a. Numerosity ....................................................... 12 b. Commonality ...................................................... 13 c. Typicality ....................................................... 14 d. Adequacy of Representation ....................................... 15 2. Rule 23(b)(2) Factors .............................................. 17 3. Whether Notice to the Class Members Was Reasonable ................. 18 B. Whether the Proposed Settlement Is Fair ............................ 19 1. The Girsh Factors .................................................. 22 a. The Complexity, Expense, and Likely Duration of the Litigation ... 22 b. The Reaction of the Class to the Settlement ...................... 22 c. The Stage of the Proceedings and the Amount of Discovery Completed 23 d. The Risks of Establishing Liability .............................. 23 e. The Risks of Maintaining the Class Action Through Trial .......... 24 2. The Relevant Prudential Factor ..................................... 24

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 2 of 27
a. Whether the Provisions for Attorneys’ Fees Are Reasonable ........ 24 3. The Rule 23(e)(2) Factors .......................................... 25
a. Whether the Class Representatives and Class Counsel Have Adequately Represented the Class ............................................ 25
b. Whether the Proposal Was Negotiated at Arm’s Length .............. 25 c. Whether the Relief Provided for the Class Was Adequate ........... 26 d. Whether the Proposal Treats Class Members Equitably Relative to Each
Other ............................................................ 26 III. CONCLUSION............................................................ 27
This is a case about long standing policies and procedures of the City of Philadelphia, the Office of the District Attorney, and the Court of Common Pleas of Philadelphia County concerning the adjudication and execution of civil forfeitures. The Court found those policies and procedures, as alleged by the Plaintiffs and taken to be true, to be unconstitutional and to have caused harm to Plaintiffs. Plaintiffs seek class certification, injunctive relief, and monetary compensation. After substantial discovery and motion practice and with the help of a court appointed facilitator, the parties have reached agreement as to class certification, the implementation of structural and administrative changes in the manner in which civil forfeiture proceedings are conducted by the District Attorney and the Court of Common Pleas, and an amount of money sufficient to fairly compensate the victims of the unconstitutional practices.
Presently before the Court is “Plaintiffs’ Consent Motion and Memorandum in Support of Final Approval of Class
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Certification and Consent Decree on the Courtroom Claims.” This settlement will resolve Plaintiffs’ four “Courtroom Claims” (the Third, Fourth, Sixth, and Seventh Claims for Relief). There is a second consent decree involving the Fifth and Sixth Claims for Relief that concerns monetary awards and restitution (the “Restitutionary Claims”) and which is the subject of a separate memorandum issued on this day. Finally, there is a separate order containing findings and granting an award of attorneys’ fees.
For the reasons that follow, the Court will grant the motion, certifying the class and approving the proposed class action settlement.
I. BACKGROUND A. Factual Background and Procedural History Four residents of the city of Philadelphia
(“Plaintiffs”) filed their suit on August 11, 2014 on behalf of all real and personal property owners whose property has been subject to civil-forfeiture proceedings in Philadelphia. Plaintiffs sued the City of Philadelphia, the District Attorney’s Office, and the First Judicial District of Pennsylvania (together referred to as the “Defendants”)1 alleging
1 Although each of the Defendants acted separately and independently of each other and consequently not all conduct found to be unconstitutional applies to all Defendants, for the sake of clarity, this memorandum refers to “Defendants” jointly
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that the forfeiture proceedings used in Philadelphia violated constitutional due process guarantees. Plaintiffs allege that the Defendants utilized “robo-forfeiture” practices involving issuing large amounts of generic forfeiture complaints which resulted in the seizure of more than 1,200 houses, 3,500 vehicles, and $50 million in cash over thirteen years. Plaintiffs allege that, instead of being able to challenge the forfeitures before a judge, they were forced to plead their case before prosecutors from the District Attorney’s Office, the very individuals who had issued the complaints. Plaintiffs further allege that instead of the forfeiture assets being used to help communities combat drugs (the professed goal of the forfeiture program), the Defendants used the funds to pay themselves and to pay for substantial purchases outside of City Council appropriations, creating significant conflicts of interest. The Court found that the Plaintiff had stated a cause of action and that, as alleged, the Defendants’ conduct, policies, and procedures were unconstitutional. See Sourovelis v. City of Phila., 246 F. Supp. 3d 1058 (E.D. Pa. 2017); Sourovelis v. City of Phila., 103 F. Supp. 3d 694 (E.D. Pa. 2015).
regardless of which Defendant engaged in the unconstitutional conduct, except where specific reference to the District Attorney’s Office is relevant and helpful.
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After nearly six years of litigation during which the parties engaged in significant motion practice including three motions to dismiss, two motions to compel, and a motion for preliminary injunction, and after the certification of one subclass, a court-approved settlement of two counts in November 2015, and the negotiation of the current proposed settlement, the Court preliminarily certified the two classes at issue and preliminarily approved the Consent Decree on April 30, 2019 after a hearing.
Thereafter, notice was provided to the class members as dictated by the Court, including posting the notice on a purpose-specific website and on the respective websites of class counsel and the Defendants, and sending individualized notices to more than 34,000 potential class members to the most up-todate addresses available. By December 6, 2019, the deadline for objections, only nine objections had been filed, none of which mentioned the terms of this Consent Decree (instead they concerned the second consent decree regarding the monetary claims, which is discussed in a separate memorandum).
On October 14, 2020, the Court held a final fairness hearing. The Court granted the opportunity for all present to comment, but only counsel and the parties’ witnesses spoke. Ultimately, there were no written or oral objections to the proposed class action and settlement of the Courtroom Claims.
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For the claims at issue in this memorandum, Plaintiffs seek only injunctive and declaratory relief.2 Regarding the claims: the Third Claim for Relief challenges Defendants’ alleged failure to provide property owners with a prompt postdeprivation hearing to contest the seizure of their property pending an ultimate hearing on the merits. The Fourth Claim for Relief challenges Defendants’ repeated “relisting” of forfeiture proceedings, which allegedly forced property owners to appear repeatedly at proceedings or else risk default judgment. The Sixth Claim for Relief challenges prosecutorial control of forfeiture proceedings in Philadelphia. The Seventh Claim for Relief challenges Defendants’ other alleged due-process violations in administering the forfeiture proceedings.
B. The Proposed Class Action Settlement The terms of the proposed class action settlement are
set forth in the “Proposed Consent Decree on Plaintiffs’ Claims for Injunctive Relief Regarding Courtroom Claims” (“Consent Decree”). Mot. Ex. A, ECF No. 326-1. The basic terms are outlined below.
1. The Class There are two class definitions for these claims:

2

In addition to injunctive and declaratory relief, the

Sixth Claim for Relief seeks monetary restitution. This aspect

of the Sixth Claim will be discussed in the second memorandum.

This memorandum will only deal with the non-monetary aspects of

this claim.

6

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 7 of 27
For purposes of the Third, Fourth, and Seventh Claims for Relief in the Second Amended Complaint, the settlement class shall consist of: All persons holding legal title to or otherwise having a legal interest in real or personal property:
(i) which was the subject of civilforfeiture or return-of-property proceedings as of August 11, 2012; or
(ii) which had been seized on or after August 11, 2012; or
(iii) which was or will be the subject of a forfeiture petition or a return-of-property, or related proceeding in the Court of Common Pleas of Philadelphia County on or after August 11, 2012.
For purposes of the Sixth Claim for Relief in the Second Amended Complaint, the settlement class shall consist of: All persons receiving a notice directing them to appear in, or who appeared in, Courtroom 478 for forfeiture, return-of-property, or related proceedings from August 11, 2012 until January 6, 2016.
Id. at 12.
2. The Proposed Terms of the Consent Decree For the Third Claim for Relief, which challenges
Defendants’ alleged failure to provide property owners with a
prompt post-deprivation hearing, the Consent Decree provides
individuals going forward with the opportunity to contest the
basis for the property seizure. Under the Consent Decree,
claimants can file a “Motion for Release of Seized Property
Pending the Conclusion of Forfeiture Proceedings” at any time
after law enforcement’s seizure of their property, including
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during the pendency of civil-forfeiture proceedings. The Defendants will post a form version of this motion on their website and send a copy alongside their forfeiture petitions. A hearing on such a motion will be heard within ten days of its filing. Even without filing a motion, the Consent Decree provides that Defendants cannot retain seized property for more than 90 days without good cause. The Consent Decree also enjoins the Defendants from seizing property unless the owner has the option of receiving a prompt and meaningful post-deprivation hearing.
For the Fourth Claim for Relief, which challenges Defendants’ repeated “relisting” of forfeiture proceedings, the Consent Decree protects property owners from unilateral relisting of hearings and from default judgment in a number of ways, including: (1) improving procedures for identifying potential claimants; (2) imposing timing requirements on service of process; (3) creating safeguards against default judgment, including requiring judicial approval, and providing for continuances and extensions if needed by claimants; (4) imposing thresholds for seizures and forfeitures of cash and prohibiting seizures and forfeiture of property (besides per se contraband) for “[s]imple [d]rug [p]ossession” offenses; and (5) enjoining the practices challenged by Plaintiffs’ Fourth Claim for Relief.
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Regarding the Sixth Claim for Relief, which challenges prosecutorial control of forfeiture proceedings, the Consent Decree requires that a Court of Common Pleas judge preside over the post-seizure hearing or forfeiture trial. Moreover, only judges are authorized to take dispositive action with respect to forfeiture proceedings and all settlement agreements must be approved by a judge. Finally, the Consent Decree enjoins Defendants from conducting forfeiture proceedings unless before a neutral arbiter.
Regarding the Seventh Claim for relief, which challenges additional due-process violations, the Consent Decree changes the forfeiture-administration procedures to conform to constitutional requirements and remedy the challenges raised in the Seventh Claim. These changes include adding multiple notice and informational requirements regarding forfeitures to affected property owners; limiting common-law forfeiture solely to forfeiture of per se contraband; adding safeguards against selfincrimination; enjoining the Defendants from requiring property owners to affirmatively prove their innocence in forfeiture proceedings; and requiring the use of the Pennsylvania Rules of Civil Procedure.
The Consent Decree also imposes reporting obligations on Defendants to the Plaintiffs and allows Plaintiffs to monitor Defendants’ compliance for at least eighteen months. The Court
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Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 10 of 27
will retain jurisdiction over the Courtroom Claims for those eighteen months with the ability to extend the term of jurisdiction based on a finding of substantial noncompliance.
The Consent Decree also provides for an award of attorneys’ fees and expenses of $2,630,000 and $2,500 incentive awards for each of the four named Plaintiffs. The reasonableness of the attorneys’ fees will be the subject of a separate order.
II. DISCUSSION Under Federal Rule of Civil Procedure 23(e), the
settlement of a class action requires court approval. Fed. R. Civ. P. 23(e)(2). A district court may approve a settlement agreement “only after a hearing and only on finding that it is fair, reasonable, and adequate.” Id. The factual determinations necessary to make Rule 23 findings must be made by a preponderance of the evidence. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir. 2008). “The decision of whether to approve a proposed settlement of a class action is left to the sound discretion of the district court.” In re Prudential Ins. Co. Am. Sales Prac. Litig. Agent Actions, 148 F.3d 283, 299 (3d Cir. 1998) (quoting Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir. 1975)).
The Court must also certify the settlement class. While the exact process a district court should follow when
10

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 11 of 27
presented with a settlement class is not prescribed by Rule 23, under Third Circuit law, the court must determine that the settlement class meets the requirements for class certification under Rule 23(a) and (b), and must separately determine that the settlement is fair to that class under Rule 23(e). In re Nat’l Football League Players Concussion Inj. Litig., 775 F.3d 570, 581 (3d Cir. 2014); In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 778 (3d Cir. 1995) (providing that settlement class status “should not be sustained unless the record establishes, by findings of the district judge, that the [ ]requisites of [ ] Rule [23(a) and (b)] are satisfied”).
A. Whether Class Certification Is Proper At the final fairness stage, the court must undertake
a “rigorous analysis” as to whether class certification is appropriate. In re Nat’l Football League, 775 F.3d at 582-83, 586. Under Rule 23(a), Plaintiffs must demonstrate that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).
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Rule 23(b)(2), under which Plaintiffs seek class
certification for this Consent Decree, requires that “the party
opposing the class has acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the
class as a whole.” Fed. R. Civ. P. 23(b)(2). “[T]he key to the
(b)(2) class is the indivisible nature of the injunctive or
declaratory remedy warranted--the notion that the conduct is
such that it can be enjoined or declared unlawful only as to all
of the class members or as to none of them.” Shelton v. Bledsoe,
775 F.3d 554, 561 (3d Cir. 2015) (internal quotation marks
omitted).
[F]or certification of a 23(b)(2) class seeking only declaratory or injunctive relief, a properly defined “class” is one that: (1) meets the requirements of Rule 23(a); (2) is sufficiently cohesive under Rule 23(b)(2) and our guidance in Barnes [v. Am. Tobacco Co.], 161 F.3d [127,] 143 [3d Cir. 1998)]; and (3) is capable of the type of description by a “readily discernible, clear, and precise statement of the parameters defining the class,” as required by Rule 23(c)(1)(B) and our discussion in Wachtel [ex rel. Jesse v. Guardian Life Ins. Co. of Am.], 453 F.3d [179,] 187 [(3d Cir. 2006]). No additional requirements need be satisfied.
Id. at 563.3
1. Rule 23(a) Factors
a. Numerosity

3

As a result, the Third Circuit’s ascertainability

requirement is not applicable in a Rule 23(b)(2) case. Shelton,

775 F.3d at 563.

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Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). No minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds forty, the numerosity prong has been met. Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001).
Numerosity is easily satisfied here since the proposed settlement class has thousands of members.
b. Commonality Rule 23(a)(2) requires a showing of the existence of “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). This commonality element requires that the plaintiffs “share at least one question of fact or law with the grievances of the prospective class.” Rodriguez v. Nat’l City Bank, 726 F.3d 372, 382 (3d Cir. 2013) (quoting Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994)). To satisfy the commonality requirement, class claims “must depend upon a common contention . . . of such a nature that it is capable of classwide resolution--which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
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The claims at issue share common questions of law, including whether each of the challenged policies and practices violated due process. Each of these claims also presents a common question of fact. For the Third Claim for Relief, it is whether Defendants have a policy and practice of failing to provide prompt post-seizure hearings to individuals whose property has been seized. For the Fourth Claim for Relief, it is whether Defendants have a policy and practice of repeatedly relisting forfeiture actions and requiring property owners to make monthly court appearances, each of which increase the risk of a default judgment. For the Sixth Claim for Relief, it is whether Defendants have a policy and practice of having assistant district attorneys control forfeiture proceedings in Courtroom 478. For the Seventh Claim for Relief, it is whether the procedures governing administration of forfeiture and seized property cases deprive property owners of due process.
Thus, the commonality requirement is met. c. Typicality
Rule 23(a)(3) requires that the class representatives’ claims be “typical” of the claims of the class. Fed. R. Civ. P. 23(a)(3). The typicality inquiry is “intended to assess whether the action can be efficiently maintained as a class and whether the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees’
14

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 15 of 27
interests will be fairly represented.” Baby Neal, 43 F.3d at 57. Where claims of the representative plaintiffs arise from the same alleged wrongful conduct on the part of the defendant, the typicality prong is satisfied. In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 532 (3d Cir. 2004). The typicality threshold is low. Seidman v. Am. Mobile Sys., Inc., 157 F.R.D. 354, 360 (E.D. Pa. 1994).
This element is satisfied because each of the Named Plaintiffs, like the other class members, experienced the policies and practices that these claims challenge. Moreover, each of the claims at issue rests on the same legal theories as the unnamed class members’ claims.
d. Adequacy of Representation Rule 23(a)(4) requires representative parties to “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement “serves to uncover conflicts of interest between the named parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). The Third Circuit applies a two-prong test to assess the adequacy of the proposed class representatives. First, the court must inquire into the “qualifications of the counsel to represent the class,” and second, it must assess whether there are “conflicts of interest between named parties
15

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 16 of 27
and the class they seek to represent.” In re Prudential, 148 F.3d at 312 (internal quotation marks omitted).
Regarding the qualifications of counsel, Fed. R. Civ. P. 23(g) provides that, in appointing class counsel, the court must consider: (1) the work counsel has done in identifying or investigating potential claims in the action; (2) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (3) counsel’s knowledge of the applicable law; and (4) the resources that counsel will commit to representing the class.
As it concluded during the preliminary approval process, the Court again concludes that Plaintiffs’ counsel, the Institute for Justice and local counsel David Rudovsky, have substantial experience litigating forfeiture class actions nationwide and possess sufficient knowledge regarding the relevant law. Counsel have also performed a substantial amount of work in the case and have committed extensive resources without seeking interim payment. Specifically, counsel have, inter alia, performed extensive pre-filing investigations, including multiple interviews of potential plaintiffs; conducted legal research regarding various procedural and substantive issues; researched, drafted, and amended the complaint; opposed three motions to dismiss; achieved certification of a Rule 23(b)(2) class with respect to injunctive and declaratory relief
16

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 17 of 27

for Claim Five; conducted extensive discovery, including deposing five city officials; prepared and filed two motions to compel the production of discovery; participated in several settlement discussions, including an all-day session with a court-approved facilitator4; and successfully navigated the preliminary approval process.
Second, the Named Plaintiffs’ interests are coextensive with, and not antagonistic to, the interests of the class since they all raise the same claims and seek the same injunctive and declaratory relief. The Court concludes that there are no conflicts of interest between the Named Plaintiffs and the class such that the adequacy of representation requirement is met.
In sum, Plaintiffs have demonstrated compliance with each of the Rule 23(a) prerequisites for class certification.
2. Rule 23(b)(2) Factors As provided, Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the

4

Mark A. Aronchick, a Philadelphia-based attorney

experienced in class actions and commercial litigation, and also

knowledgeable of local conditions and culture, was appointed by

the Court with the consent of the parties as facilitator. To Mr.

Aronchick goes the appreciation of the Court for helping the

parties reach an agreement in this case.

17

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 18 of 27
class as a whole.” Fed. R. Civ. P. 23(b)(2). A class under Rule 23(b)(2) is proper if it: (1) meets the requirements of Rule 23(a); (2) is sufficiently cohesive under Rule 23(b)(2); and (3) is capable of being described in a readily discernible, clear, and precise statement of the parameters defining the class, as required by Rule 23(c)(1)(B). Shelton, 775 F.3d at 561.
Here, the class meets the requirements of Rule 23(a). Moreover, the class is cohesive in that there are no apparent individualized issues among the class members. See Barnes, 161 F.3d at 143 (providing that a court “must determine whether a proposed (b)(2) class implicates individual issues”). All of the class members have the same issues and seek the same relief. Finally, in that the parties have narrowly defined the classes, the class parameters are clear and readily discernable. See Baby Neal, 43 F.3d at 58 (holding that 23(b)(2) is “almost automatically satisfied in actions primarily seeking injunctive relief”).
3. Whether Notice to the Class Members Was Reasonable
As described above, the Court previously approved the notice scheme and it appears that the parties have successfully followed that procedure. Therefore, the Court concludes that notice was reasonable. See Harris v. Reeves, 761 F. Supp. 382,
18

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 19 of 27
393 (E.D. Pa. 1991) (“[T]he trial court has broad discretion in determining the timing and manner” of class notice.).
Thus, the Court shall certify the settlement classes for this Consent Decree.
B. Whether the Proposed Settlement Is Fair After class certification, the court must approve the
settlement of a class action and determine whether the proposed settlement is “fair, adequate, and reasonable,” as required by Rule 23(e)(2). In Re Prudential, 148 F.3d at 316-17. Where the parties simultaneously seek certification and settlement approval, the Third Circuit requires “‘courts to be even more scrupulous than usual’ when they examine the fairness of the proposed settlement.” Id. at 317 (quoting In re Gen. Motors Corp., 55 F.3d at 805). This heightened standard is designed to ensure that class counsel has demonstrated sustained advocacy throughout the course of the proceedings and has protected the interests of all class members. Id. Ultimately, “[t]he decision of whether to approve a proposed settlement of a class action is left to the sound discretion of the district court.” Girsh, 521 F.2d at 156. There is a presumption of fairness for a settlement negotiated at arm’s length by experienced advocates following sufficient discovery whenever the settlement has not drawn meaningful objections from class members. In re Cendant Corp.
19

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 20 of 27
Litig., 264 F.3d 201, 232 n.18 (3d Cir. 2001). In that this is the posture of the case, the presumption applies.5
Rule 23(e)(2) sets forth the factors a court must consider in determining the fairness of a class action settlement. Specifically whether: (A) the class representatives and class counsel have adequately represented the class; (B) the proposal was negotiated at arm’s length; (C) the relief provided for the class is adequate, taking into account: (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorneys’ fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3); and (D) the proposal treats class members equitably relative to each other. Fed. R. Civ. P. 23(e)(2).
These factors are in many respects a codification of various factors set forth in Girsh, 521 F.2d at 157, which the

5

Arguably, applying this “presumption” in cases where

the parties seek certification and settlement approval

contemporaneously is in tension with the mandate from the Court

of Appeals that courts are to act as fiduciaries to the class,

independently and scrupulously evaluating the terms of the

settlement regardless of the parties’ positions. See, e.g., In

re Cendant Corp., 264 F.3d at 231; In re Prudential, 148 F.3d at

317. In this case, with or without applying the presumption, the

Court finds the settlement to be fair.

20

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 21 of 27
Third Circuit has directed courts to use in establishing the fairness of a class action settlement.6 The Third Circuit later expanded on the Girsh factors in In re Prudential, 148 F.3d 323, adding additional factors that the court may consider where appropriate.7 In re Nat’l Football League Players Concussion Inj.

6

The Girsh factors are: (1) the complexity, expense,

and likely duration of the litigation; (2) the reaction of the

class to the settlement; (3) the stage of the proceedings and

the amount of discovery completed; (4) the risks of establishing

liability; (5) the risks of establishing damages; (6) the risks

of maintaining the class action through trial; (7) the ability

of the defendants to withstand a greater judgment; (8) the range

of reasonableness of the settlement fund in light of the best

possible recovery; and (9) the range of reasonableness of the

settlement fund to a possible recovery in light of all the

attendant risks of litigation. Girsh, 521 F.2d at 157. The

fifth, seventh, eighth, and ninth factors regard monetary

judgments and are inapplicable to this Consent Decree regarding

only injunctive and declaratory relief. See, e.g., Pastrana v.

Lane, No. 08-cv-468, 2012 WL 602141, at *5 (E.D. Pa. Feb. 24,

2012). As a result, the Court will not analyze these four

factors.

7

The Prudential factors are: (1) the maturity of the

underlying substantive issues, as measured by experience in

adjudicating individual actions, the development of scientific

knowledge, the extent of discovery on the merits, and other

factors that bear on the ability to assess the probable outcome

of a trial on the merits of liability and individual damages;

(2) the existence and probable outcome of claims by other

classes and subclasses; (3) the comparison between the results

achieved by the settlement for individual class or subclass

members and the results achieved--or likely to be achieved--for

other claimants; (4) whether class or subclass members are

accorded the right to opt out of the settlement; (5) whether any

provisions for attorneys’ fees are reasonable; and (6) whether

the procedure for processing individual claims under the

settlement is fair and reasonable. In re Prudential, 148 F.3d at

323. For settlements seeking only injunctive relief, as is the

case here, the only applicable Prudential factor not necessarily

21

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 22 of 27
Litig., 821 F.3d 410, 437 (3d Cir. 2016). The Court will address the relevant Girsh, Prudential, and Rule 23(e)(2) factors below.
1. The Girsh Factors a. The Complexity, Expense, and Likely Duration of the Litigation
The first Girsh factor is “intended to capture ‘the probable costs, in both time and money, of continued litigation.’” In re Gen. Motors Corp., 55 F.3d at 812 (quoting Bryan v. Pittsburgh Plate Glass Co. (PPG Indus., Inc.), 494 F.2d 799, 801 (3d Cir. 1974)). The Court concludes, given the time and expense already expended on the claims at issue, that if the litigation continued, the costs, of both time and money, would be significant. For example, the continued litigation would entail additional discovery, including depositions, additional motions on class certification, summary-judgment briefing, and potentially trial. Given that the settlement provides the Plaintiffs with the injunctive relief they seek, this additional expense would appear especially unwarranted. Therefore, this factor supports approval of the Consent Decree.
b. The Reaction of the Class to the Settlement In relation to the second Girsh factor, when the objectors are few and the class members many, there is a strong
covered by the Girsh factors is the reasonableness of attorneys’ fees.
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Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 23 of 27

presumption in favor of approving the settlement. See, e.g., In re Cendant Corp., 264 F.3d at 235 (“The vast disparity between the number of potential class members who received notice of the [s]ettlement and the number of objectors creates a strong presumption that this factor weighs in favor of the [s]ettlement.”). Here, while there were more than 34,000 class members, there were no objections to the terms of this Consent Decree.8 Therefore, this factor also weighs in favor of the Consent Decree.
c. The Stage of the Proceedings and the Amount of Discovery Completed
The third Girsh factor considers whether the parties’ attorneys have an “adequate appreciation of the merits of the case before negotiating” the settlement. In re Gen. Motors Corp., 55 F.3d at 813. Here, counsel have engaged in significant motion practice and the attendant investigation and research over the last six years. There is no question that they are well versed in the merits of the case. Therefore, this factor weighs in favor of the Consent Decree.
d. The Risks of Establishing Liability Here, the Consent Decree provides all of the injunctive relief sought by the Plaintiffs. Therefore, any risk

8

The nine timely objections received by the Court

regarded the second consent decree on the monetary claims rather

than this Consent Decree on the injunctive Courtroom Claims.

23

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 24 of 27
at summary judgment or at trial of not succeeding would be too much and such litigation is clearly outweighed by the settlement result. The fourth Girsh factor, therefore, weighs in favor of the Consent Decree.
e. The Risks of Maintaining the Class Action Through Trial
The Court concludes that the sixth Girsh factor is neutral since there are no particular signs that the certified classes for this Consent Decree could not be maintained throughout the suit. See Ripley v. Sunoco, Inc., 287 F.R.D. 300, 313 (E.D. Pa. 2012) (finding that this Girsh factor was neutral where “there [wa]s no apparent reason why the [c]ourt would decertify or modify [a] class at any time during the litigation”).
The Court concludes that the relevant Girsh factors favor approving the Consent Decree.
2. The Relevant Prudential Factor a. Whether the Provisions for Attorneys’ Fees Are Reasonable
This is the only relevant Prudential factor. As discussed in a separate order granting counsel’s unopposed fee petition, the Court has concluded that the fees are reasonable. Counsel seek $2,630,000 in attorneys’ fees to be paid separately from and in addition to the $3 million settlement fund. The number of hours for which they are seeking compensation, 9,800,
24

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 25 of 27

are reasonable given the complexity and length of this case.9 Their rates are also reasonable for this geographic area. Ultimately, Counsel has sought twenty percent less than the lodestar and have forgone payment for many hours of work. This factor weighs in favor of the Consent Decree.
3. The Rule 23(e)(2) Factors a. Whether the Class Representatives and Class Counsel Have Adequately Represented the Class
In making this determination, “the focus at this point is on [counsel’s] actual performance.” Fed. R. Civ. P. 23(e)(2), advisory committee’s note to 2018 amendment. The Court concludes that this factor weighs in favor of settlement. In addition to the points raised above in connection with the adequacy of the class representatives and class counsel, it is clear that Plaintiffs’ counsel is well informed and their actual performance has been laudable.
b. Whether the Proposal Was Negotiated at Arm’s Length
Here, all evidence points to an arm’s length negotiation, including the involvement of a neutral facilitator. See supra Fn. 4; Fed. R. Civ. P. 23(e)(2), advisory committee’s

9

Counsel reported to the Court that they will continue

to represent the Plaintiffs and class members in the litigation

after class certification and approval of the Consent Decree,

and during the enforcement aspects of the case, and that they

will not seek additional compensation for that work.

25

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 26 of 27
note to 2018 amendment (“[T]he involvement of a neutral or court-affiliated mediator or facilitator in those negotiations may bear on whether they were conducted in a manner that would protect and further the class interests.”). Therefore, this factor weighs in favor of the Consent Decree.
c. Whether the Relief Provided for the Class Was Adequate
In connection with this factor, Rule 23(e) lists four subfactors for the Court to consider:
(i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3).” Fed. R. Civ. P. 23(e)(2)(C). Fed. R. Civ. P. 23(e). The only two factors relevant here, the first and third, have already been considered above. Specifically, continued litigation is inferior to the settlement in light of the costs and risks associated with it, and counsel’s fees are appropriate. In that the Consent Decree provides the relief that was requested by the class, the Court concludes that this factor weighs in favor of the Consent Decree.
d. Whether the Proposal Treats Class Members Equitably Relative to Each Other
This factor “calls attention to a concern that may apply to some class action settlements--inequitable treatment of
26

Case 2:14-cv-04687-ER Document 361 Filed 01/27/21 Page 27 of 27
some class members vis-a-vis others.” Fed. R. Civ. P. 23(e)(2), advisory committee’s note to 2018 amendment. “Matters of concern could include whether the apportionment of relief among class members takes appropriate account of differences among their claims, and whether the scope of the release may affect class members in different ways that bear on the apportionment of relief.” Id. Because the injunctive and declaratory relief affects all class members equally, this factor is not relevant.
The relevant Girsh, Prudential, and Rule 26(e)(2) factors indicate that the Consent Decree is fair and reasonable. Indeed, all but one factor supports approving the settlement, and that last factor is neutral.
III. CONCLUSION In that Rules 23(a) and (b)(2) have been met,
certification of the settlement class is proper. Moreover, the terms in the Consent Decree appear fair, reasonable, and adequate. As a result, the Court will grant Plaintiffs’ Uncontested Motion and Memorandum in Support of Preliminary Approval of Class Certification and Consent Decree on the Courtroom Claims, certify the settlement class, and approve the Consent Decree on the Courtroom Claims.
An appropriate order follows.
27

 
 Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOS SOUROVELIS, et al., Plaintiffs,
v. CITY OF PHILADELPHIA, et al.,
Defendants.

: CIVIL ACTION : No. 14-4687 : : : : : : :

M E M O R A N D U M

EDUARDO C. ROBRENO, J.

JANUARY 27, 2021

Table of Contents
I. BACKGROUND .............................................................. 3 A. Factual Background and Procedural History ........................... 3 B. The Proposed Class Action Settlement ................................ 7 1. The Class ........................................................... 8 2. The Proposed Terms of the Consent Decree ............................ 8
II. DISCUSSION............................................................ 11 A. Whether Class Certification Is Proper .............................. 12 1. Rule 23(a) Factors ................................................. 13 a. Numerosity ....................................................... 13 b. Commonality ...................................................... 14 c. Typicality ....................................................... 15 d. Adequacy of Representation ....................................... 16 2. Rule 23(b)(3) Factors .............................................. 18 3. Ascertainability ................................................... 21 B. Whether Notice to the Class Members Was Reasonable ................. 22 C. Whether the Proposed Settlement Is Fair ............................ 22 1. The Girsh Factors .................................................. 25 a. The Complexity, Expense, and Likely Duration of the Litigation ... 25 b. The Reaction of the Class to the Settlement ...................... 25 c. The Stage of the Proceedings and the Amount of Discovery Completed 26 d. The Risks of Establishing Liability .............................. 27 e. The Risks of Establishing Damages ................................ 27

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 2 of 42
f. The Risks of Maintaining the Class Action Through Trial .......... 28 g. The Ability of the Defendants to Withstand a Greater Judgment .... 28 h. The Range of Reasonableness of the Settlement Fund ............... 28 2. The Prudential Factors ............................................. 29 3. The Rule 23(e)(2) Factors .......................................... 32 a. Whether the Class Representatives and Class Counsel Have Adequately
Represented the Class ............................................ 32 b. Whether the Proposal Was Negotiated at Arm’s Length .............. 32 c. Whether the Relief Provided for the Class Was Adequate ........... 33 d. Whether the Proposal Treats Class Members Equitably Relative to Each
Other ............................................................ 33 4. The Fairness of the Monetary Award Structure and the Cy Pres Provision
36 III. CONCLUSION............................................................ 41
This is a case about long standing policies and procedures of the City of Philadelphia, the Office of the District Attorney, and the Court of Common Pleas of Philadelphia County concerning the adjudication and execution of civil forfeitures. The Court found those policies and procedures, as alleged by the Plaintiffs and taken as true, to be unconstitutional and to have caused harm to Plaintiffs. Plaintiffs seek class certification, injunctive relief, and monetary compensation. After substantial discovery and motion practice and with the help of a court appointed facilitator, the parties have reached agreement as to class certification, the implementation of structural and administrative changes in the manner in which civil forfeiture proceedings are conducted by the District Attorney and the Court of Common Pleas, and an
2

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 3 of 42
amount of money sufficient to fairly compensate the victims of the unconstitutional practices.
Presently before the Court is “Plaintiffs’ Consent Motion and Memorandum in Support of Final Approval of Class Certification and Consent Decree on Plaintiffs’ Fifth and Sixth Claims for Relief.” If approved, the settlement would resolve the two claims that assert the right to monetary restitution (the “Restitutionary Claims”). There is a second consent decree involving the Third, Fourth, Sixth, and Seventh Claims for Relief that concerns structural changes to the Defendants’ policies and practices (the “Courtroom Claims”) and which is the subject of a separate memorandum issued on this day. Finally, there is a separate order containing findings and granting an award of attorneys’ fees.
For the reasons that follow, the Court will grant the motion in part, certify the class, and approve a class action settlement as described in this memorandum. The parties may then file a joint modified consent decree for the Restitutionary Claims which conforms with this decision.
I. BACKGROUND A. Factual Background and Procedural History Four residents of the city of Philadelphia
(“Plaintiffs”) filed their suit on August 11, 2014 on behalf of
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Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 4 of 42

all real and personal property owners whose property has been subject to civil-forfeiture proceedings in Philadelphia. Plaintiffs sued the City of Philadelphia, the District Attorney’s Office, and the First Judicial District of Pennsylvania (together referred to as “Defendants”)1 alleging that the forfeiture proceedings used in Philadelphia violated constitutional due process guarantees. Plaintiffs allege that the Defendants utilized “robo-forfeiture” practices involving issuing large amounts of generic forfeiture complaints which resulted in the seizure of more than 1,200 houses, 3,500 vehicles, and $50 million in cash over thirteen years. Plaintiffs allege that, instead of being able to challenge the forfeitures before a judge, they were forced to plead their case before prosecutors from the District Attorney’s Office, the very individuals who had issued the complaints. Plaintiffs further allege that instead of the forfeiture assets being used to help communities combat drugs (the professed goal of the forfeiture program), the Defendants used the funds to pay themselves and to pay for substantial purchases outside of City Council appropriations, creating significant conflicts of interest. The

1

Although each of the Defendants acted separately and

independently of each other and consequently not all conduct

found to be unconstitutional applies to all Defendants, for the

sake of clarity, this memorandum refers to “Defendants” jointly

regardless of which Defendant engaged in the unconstitutional

conduct, except where specific reference to the District

Attorney’s Office is relevant and helpful.

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Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 5 of 42
Court found that the Plaintiff had stated a cause of action and that, as alleged, the Defendants’ conduct, policies, and procedures were unconstitutional. See Sourovelis v. City of Phila., 246 F. Supp. 3d 1058 (E.D. Pa. 2017); Sourovelis v. City of Phila., 103 F. Supp. 3d 694 (E.D. Pa. 2015).
After nearly six years of litigation during which the parties engaged in significant motion practice including three motions to dismiss, two motions to compel, and a motion for preliminary injunction, and after the certification of one subclass, a court-approved settlement of two counts in November 2015, and the negotiation of the current proposed settlement, the Court preliminarily certified the class at issue and preliminarily approved the Consent Decree on April 30, 2019 after a hearing.
Thereafter, notice was provided to the class members as dictated by the Court, including posting the notice on a purpose-specific website and on the respective websites of class counsel and the Defendants, and sending individualized notices to nearly 35,000 potential class members to the most up-to-date addresses available. Counsel sought and received an extension for the claims period when it discovered additional means by which to obtain accurate mailing addresses. Counsel also contacted by telephone more than 200 class members, handed out the notice and attendant forms during forfeiture proceedings,
5

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 6 of 42
and widely publicized the settlement and claims process on local and social media. Ultimately, the Claims Administrator received 2,395 claims that counsel concluded were eligible for awards and received only fifteen opt-outs. By December 6, 2019, the deadline for objections, only nine objections had been filed. Two of those simply ask for counsel to contact them.
On October 14, 2020, the Court held a final fairness hearing. The Court granted the opportunity for all present to comment, but only counsel and the parties’ witnesses spoke. The Court also considered the few submitted written objections, which it then denied. There were no other objections to the proposed class action and settlement of the Restitutionary Claims. The Court, however, questioned the fairness of the large cy pres award, which turned out to be 27% of the $3 million Restitutionary Fund. This amount could not have been known during the preliminary approval because, although the amount of the total award was fixed, the number of claimants was then unknown.
The Court ordered the parties to submit further briefing which, inter alia: (1) calculated the effects of increasing the reward to each class member along with recommended increases; (2) provided a clarification of how many claims fell into each of the award categories; and (3) outlined the proposed distribution of the remaining cy pres funds.
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Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 7 of 42
On November 16, 2020, the parties submitted these supplemental letter briefs. However, they did not agree on how to redistribute the cy pres funds. On December 12, 2020, the Court reconvened the final fairness hearing telephonically in order to discuss the competing proposals. Having considered the new proposals, the Court, as the arbiter of the fairness of the cy pres distribution, concludes that class counsel’s suggestion, as discussed below, provides the fairest distribution of the remaining funds. The Court therefore approves a settlement that includes class counsel’s distribution model.
Regarding the two claims at issue in this memorandum, the Fifth Claim for Relief challenges the Defendants’ retention and use of forfeited property and its proceeds. Plaintiffs assert that this policy gave law enforcement in Philadelphia a direct financial interest in the outcome of forfeiture proceedings. The Sixth Claim for Relief challenges Defendants’ practice of allowing prosecutors, rather than neutral arbiters, to control forfeiture and related proceedings in Courtroom 478 of City Hall. Plaintiffs seek the return of their forfeited property and monetary relief for the alleged constitutional violations.
B. The Proposed Class Action Settlement The terms of the proposed class action settlement are
set forth in the “Proposed Consent Decree on Plaintiffs’ Fifth
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Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 8 of 42

and Sixth Claims for Relief” (“Consent Decree”). Mot. Ex. A, ECF
No. 331-1. The basic terms are outlined below.
1. The Class The so-called “Restitutionary Class” is comprised of:
All persons who held or hold legal title to, or otherwise had or have a legal interest in property against which a Statutory or Common Law civilforfeiture petition (i) was pending in the Court of Common Pleas of Philadelphia County as of August 11, 2012; or (ii) was filed in the Court of Common Pleas of Philadelphia County on or after August 11, 2012 until the date the Court grants preliminary approval.
Id. at 8.
2. The Proposed Terms of the Consent Decree The Consent Decree offers two main benefits to the
proposed Restitutionary Class: (1) complete injunctive relief
remedying the Defendants’ direct financial interest in the
outcome of forfeiture proceedings; and (2) a Restitutionary Fund
of $3 million to be administered by a third-party claims
administrator. Including certain time-barred claims that the
parties agreed to incorporate in the final tally,2 there were
only 2,395 valid claimants out of the nearly 35,000 potential
class members who were sent notice of the lawsuit. The final

2

These time-barred claimants will technically be paid

out of the cy pres fund since they are not actually class

members. For purposes of discussion in this memorandum, however,

the Court will include these individuals and their awards with

the class member calculations, and when the Court refers to the

cy pres fund, it will be referring to the remaining cy pres

funds after these individuals have been compensated.

8

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 9 of 42

claimant count includes 61 claimants whose cases are not fully adjudicated, so the parties, not knowing the ultimate value of those claims, have set aside enough funds to compensate them. The Court will retain jurisdiction over the permanent injunctions in the Consent Decree for as long as they are in place.3
According to the proposed Consent Decree, the Restitutionary Fund will consist of $3 million, which after paying the costs of administration, will be distributed in the following order:
First, $90 would be paid to each member of the proposed Restitutionary Class as recompense for the alleged constitutional violations. Second, each named Plaintiff would receive an incentive award of $2,500. Third, class members who were neither convicted nor received a diversionary disposition in a criminal case associated with the forfeiture of their property would receive 100% of the value of their property (“Innocent Claimants”). Fourth, class members who received a diversionary disposition in the criminal case associated with the forfeiture of their property would receive 75% of the value

3

Whether this jurisdiction will be maintained after a

reasonable period of time will depend upon the parties’

performance under the terms of the Consent Decree. It is not the

intention of the Court for a federal court to permanently, or

for an extended period, superintend over the state court of

common pleas or the state’s civil process.

9

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 10 of 42
of their property (“Diversionary Claimants”). Fifth, those claimants who were convicted in the criminal case associated with the forfeiture of their property would receive 0% of the value of their property (“Convicted Claimants”). Sixth, $375,000 would be returned to the City of Philadelphia.
Any remaining money would constitute a cy pres fund awarded to the Philadelphia Foundation to be distributed to nonprofit or community-based public-service organizations or social agencies. Due to the relatively low claim rate, 27% of the settlement fund, or $807,315 of the $3 million fund, ultimately fell within this category.
After the Court questioned the size of this large cy pres award, the parties agreed that it should be adjusted so the actual class members receive a greater share of the Restitutionary Fund.
In its supplemental letter brief, class counsel suggested: (1) the Innocent Claimants receive $800 (instead of $90) and 100% of the value of their forfeited property; (2) the Diversionary Claimants receive $600 (instead of $90) and 75% of the value of their forfeited property; and (3) the Convicted Claimants receive $200 (instead of $90) and 0% of the value of their forfeited property. This distribution maximizes payment to the class and leaves only .8%, or $24,000, for the cy pres award to the Philadelphia Foundation.
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Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 11 of 42
In the Defendants’ supplemental letter brief, the District Attorney’s Office suggested: (1) the Innocent Claimants receive $300 (instead of $90) and 100% of the value of their forfeited property; (2) the Diversionary Claimants receive $200 (instead of $90) and 75% of the value of their forfeited property; and (3) the Convicted Claimants receive the original $90 payment and 0% of the value of their forfeited property. This distribution would leave 21%, or $629,000 for the cy pres award to the Philadelphia Foundation. As discussed below, the Court concludes that class counsel’s proposal is more consistent with the essential purpose of cy pres awards.
The Consent Decree also provides for an award of attorneys’ fees and expenses of $2,630,000 in addition to the $3,000,000 restitution award. The reasonableness of attorneys’ fees will be the subject of a separate order.
II. DISCUSSION Under Federal Rule of Civil Procedure 23(e), the
settlement of a class action requires court approval. Fed. R. Civ. P. 23(e)(2). A district court may approve a settlement agreement “only after a hearing and only on finding that it is fair, reasonable, and adequate.” Id. The factual determinations necessary to make Rule 23 findings must be made by a preponderance of the evidence. In re Hydrogen Peroxide Antitrust
11

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 12 of 42
Litig., 552 F.3d 305, 320 (3d Cir. 2008). “The decision of whether to approve a proposed settlement of a class action is left to the sound discretion of the district court.” In re Prudential Ins. Co. Am. Sales Prac. Litig. Agent Actions, 148 F.3d 283, 299 (3d Cir. 1998) (quoting Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir. 1975)).
The Court must also certify the settlement class. While the exact process a district court should follow when presented with a settlement class is not prescribed by Rule 23, under Third Circuit law, the court must determine that the settlement class meets the requirements for class certification under Rule 23(a) and (b), and must separately determine that the settlement is fair to that class under Rule 23(e). In re Nat’l Football League Players Concussion Inj. Litig., 775 F.3d 570, 581 (3d Cir. 2014) (“In re Nat’l Football League I”); In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 778 (3d Cir. 1995) (providing that settlement class status “should not be sustained unless the record establishes, by findings of the district judge, that the [ ]requisites of [ ] Rule [23(a) and (b)] are satisfied”).
A. Whether Class Certification Is Proper At the final fairness stage, the court must undertake
a “rigorous analysis” as to whether class certification is appropriate. In re Nat’l Football League I, 775 F.3d at 582-83,
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Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 13 of 42
586. Under Rule 23(a), the plaintiffs must demonstrate that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).
Rule 23(b)(3), under which Plaintiffs seek class certification for this Consent Decree, requires that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
Finally, in addition to the Rule 23(a) and (b)(3) requirements, the Third Circuit imposes another requirement, ascertainability of the class, that must be assessed during the Court’s determination on class certification.
1. Rule 23(a) Factors a. Numerosity
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). No minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named
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Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 14 of 42
plaintiff demonstrates that the potential number of plaintiffs exceeds forty, the numerosity prong has been met. Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001).
Numerosity is easily satisfied here since the proposed settlement class has tens of thousands of members.
b. Commonality Rule 23(a)(2) requires a showing of the existence of “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). This commonality element requires that the plaintiffs “share at least one question of fact or law with the grievances of the prospective class.” Rodriguez v. Nat’l City Bank, 726 F.3d 372, 382 (3d Cir. 2013) (quoting Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994)). To satisfy the commonality requirement, class claims “must depend upon a common contention . . . of such a nature that it is capable of classwide resolution--which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The Fifth Claim for Relief presents the following common legal and factual questions “capable of classwide resolution”: (1) how the proceeds of civil-forfeiture actions are distributed; (2) whether the manner in which the proceeds are distributed creates a conflict of interest; (3) whether that
14

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 15 of 42
conflict of interest deprives litigants in civil-forfeiture proceedings of due process of law; and (4) whether an order enjoining the City and District Attorney Defendants’ retention of forfeiture proceeds, and declaring the City and District Attorney Defendants’ practices unconstitutional, would provide relief for the due-process violation. The Sixth Claim for Relief presents the common questions of whether prosecutors acted essentially like judges in running Courtroom 478 and whether that violated Plaintiffs’ due-process rights to an impartial and neutral arbiter.
Thus, the commonality requirement is met. c. Typicality
Rule 23(a)(3) requires that the class representatives’ claims be “typical” of the claims of the class. Fed. R. Civ. P. 23(a)(3). The typicality inquiry is “intended to assess whether the action can be efficiently maintained as a class and whether the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees’ interests will be fairly represented.” Baby Neal, 43 F.3d at 57. Where claims of the representative plaintiffs arise from the same alleged wrongful conduct on the part of the defendant, the typicality prong is satisfied. In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 532 (3d Cir. 2004). The typicality
15

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 16 of 42
threshold is low. Seidman v. Am. Mobile Sys., Inc., 157 F.R.D. 354, 360 (E.D. Pa. 1994).
This element is satisfied because each of the Named Plaintiffs personally experienced the policies and practices that these claims challenged. Each class member suffered the same policy of using forfeiture proceeds to raise revenue, and each suffered the same policy of being subject to the alleged “sham” forfeiture proceedings conducted by Defendants. Moreover, each of the Named Plaintiffs’ claims rest on the same legal theories as the unnamed class members’ claims.
d. Adequacy of Representation Rule 23(a)(4) requires representative parties to “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement “serves to uncover conflicts of interest between the named parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). The Third Circuit applies a two-prong test to assess the adequacy of the proposed class representatives. First, the court must inquire into the “qualifications of the counsel to represent the class,” and second, it must assess whether there are “conflicts of interest between named parties and the class they seek to represent.” In re Prudential, 148 F.3d at 312 (internal quotation marks omitted).
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Regarding the qualifications of counsel, Fed. R. Civ. P. 23(g) provides that, in appointing class counsel, the court must consider: (1) the work counsel has done in identifying or investigating potential claims in the action; (2) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (3) counsel’s knowledge of the applicable law; and (4) the resources that counsel will commit to representing the class.
As it concluded during the preliminary approval process, the Court again concludes that Plaintiffs’ counsel, the Institute for Justice and local counsel David Rudovsky, have substantial experience litigating forfeiture class actions nationwide and possess sufficient knowledge regarding the relevant law. Counsel have also performed a substantial amount of work in the case and have committed extensive resources without seeking interim payment. Specifically, counsel, inter alia, performed extensive pre-filing investigations, including multiple interviews of potential plaintiffs; conducted legal research regarding various procedural and substantive issues; researched, drafted, and amended the complaint; opposed three motions to dismiss; achieved certification of a Rule 23(b)(2) class with respect to injunctive and declaratory relief for Claim Five; conducted extensive discovery, including reviewing large amounts of forfeiture data and monitoring the forfeiture
17

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proceedings; prepared and filed two motions to compel the production of discovery; participated in several settlement conferences, including an all-day session with a court-approved facilitator4; and successfully navigated the preliminary approval process.
Second, the Named Plaintiffs’ interests are coextensive with, and not antagonistic to, the interests of the class since they all raise the same claims and seek the same relief: return of forfeited property or the value thereof. The Court concludes that there are no conflicts of interest between the Named Plaintiffs and the class such that the adequacy of representation requirement is met.
In sum, Plaintiffs have demonstrated compliance with each of the Rule 23(a) prerequisites for class certification.
2. Rule 23(b)(3) Factors In addition to satisfying each of the prerequisites in Rule 23(a), a class representative must show that the action falls into at least one of the three categories provided in Rule 23(b). Plaintiffs seek certification of these claims under Rule 23(b)(3). Under Rule 23(b)(3), a class action may be maintained

4

Mark A. Aronchick, a Philadelphia-based attorney

experienced in class actions and commercial litigation, and also

knowledgeable of local conditions and culture, was appointed by

the Court with the consent of the parties as facilitator. To Mr.

Aronchick goes the appreciation of the Court for helping the

parties reach an agreement in this case.

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Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 19 of 42
if: (1) common questions of law or fact predominate over questions affecting only individual members; and (2) a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
The predominance inquiry “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623. Further, it assesses whether a class action “would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated.” Fed. R. Civ. P. 23(b)(3), Advisory Committee’s Note to 1966 Amendment.
The superiority requirement “asks the court to balance, in terms of fairness and efficiency, the merits of a class action against those of alternative available methods of adjudication.” In re Warfarin, 391 F.3d at 533-34 (internal quotation marks omitted). Fed. R. Civ. P. 23(b)(3) lists four factors a court must consider when determining whether the proposed class action is superior to other alternatives: (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in
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Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 20 of 42
managing a class action. However, when assessing superiority and “[c]onfronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, . . . for the proposal is that there be no trial.” Amchem, 521 U.S. at 620.
Here, common issues predominate the Restitutionary Class’ claims. The Defendants maintained a generally applicable policy of funding their own activities with forfeiture revenue and having prosecutors run forfeiture proceedings in Courtroom 478. The question of liability thus relies on evidence that is common to all class members, like whether there was a “common course of conduct” regarding the retention of forfeiture proceeds and prosecutorial control of forfeiture proceedings.
The superiority requirement is also satisfied. The individual class members’ claims are likely to be relatively small, so that any one class member would have little interest in prosecuting the case. According to Plaintiffs, in a random sample of more than a hundred currency-forfeiture cases from 2011 to 2012, the median amount of cash subject to forfeiture was only $178 and forfeiture records show sums as little as $9.00 being ordered forfeited. Moreover, the Court is unaware of any other lawsuits that are challenging the practices at issue here. Finally, because most of the class members are
20

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 21 of 42
concentrated in Philadelphia, a class action on their behalf is appropriate in the Eastern District of Pennsylvania.
Therefore, the Court concludes that Plaintiffs have also demonstrated compliance with each of the Rule 23(b)(3) prerequisites for class certification.
3. Ascertainability In addition to the Rule 23(a) and (b)(3) requirements, the Third Circuit imposes another requirement under Rule 23: ascertainability. Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015). In Byrd, the Third Circuit explained that “[t]he ascertainability inquiry is two-fold, requiring a plaintiff to show that: (1) the class is defined with reference to objective criteria, and (2) there is a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.” Id. (internal quotation marks and citation omitted). The Restitutionary Class is ascertainable because the class definitions explain clearly who is part of the class. Moreover, Defendants’ forfeiture proceedings records are an objective means of ascertaining the class members. Based on the above, the settlement class satisfies the requirements of Rule 23(a) and (b)(3), as well as the Third Circuit’s ascertainability requirement. Therefore, the Court shall certify the Restitutionary Class.
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B. Whether Notice to the Class Members Was Reasonable As described above, the Court previously approved the
notice scheme and it appears that the parties have successfully followed that procedure. Indeed, the parties have taken various additional measures to encourage maximum response. Therefore, the Court concludes that notice was reasonable. See Harris v. Reeves, 761 F. Supp. 382, 393 (E.D. Pa. 1991) (“[T]he trial court has broad discretion in determining the timing and manner” of class notice.).
C. Whether the Proposed Settlement Is Fair In approving a class action settlement, the court must
determine whether the proposed settlement is fair, reasonable, and adequate, as required by Rule 23(e)(2). In re Prudential, 148 F.3d at 316-17. Where the parties simultaneously seek certification and settlement approval, the Third Circuit requires “‘courts to be even more scrupulous than usual’ when they examine the fairness of the proposed settlement.” Id. at 317 (quoting In re Gen. Motors Corp., 55 F.3d at 805). This heightened standard is designed to ensure that class counsel has demonstrated sustained advocacy throughout the course of the proceedings and has protected the interests of all class members. Id. Ultimately, “[t]he decision of whether to approve a proposed settlement of a class action is left to the sound discretion of the district court.” Girsh, 521 F.2d at 156. There
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is a presumption of fairness for a settlement negotiated at arm’s length by experienced advocates following sufficient discovery whenever the settlement has not drawn meaningful objections from class members. In re Cendant Corp. Litig., 264 F.3d 201, 232 n.18 (3d Cir. 2001). In that this is the posture of the case, the presumption applies.5
Rule 23(e)(2) sets forth the factors a court must consider in determining the fairness of a class action settlement. Specifically whether: (A) the class representatives and class counsel have adequately represented the class; (B) the proposal was negotiated at arm’s length; (C) the relief provided for the class is adequate, taking into account: (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3); and (D) the proposal treats

5

Arguably, applying this “presumption” in cases where

the parties seek certification and settlement approval

contemporaneously is in tension with the mandate from the Court

of Appeals that courts are to act as fiduciaries to the class,

independently and scrupulously evaluating the terms of the

settlement regardless of the parties’ positions. See, e.g., In

re Cendant Corp., 264 F.3d at 231; In Re Prudential, 148 F.3d at

317. In this case, with or without applying the presumption, the

Court finds the settlement to be fair.

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class members equitably relative to each other. Fed. R. Civ. P. 23(e)(2).
These factors are in many respects a codification of various factors set forth in Girsh, 521 F.2d at 157, which the Third Circuit has directed courts to use in establishing the fairness of a class action settlement.6 The Third Circuit later expanded on the Girsh factors in In re Prudential, 148 F.3d at 323, adding additional factors that the court may consider where appropriate.7 In re Nat’l Football League Players Concussion

6

The Girsh factors are: (1) the complexity, expense,

and likely duration of the litigation; (2) the reaction of the

class to the settlement; (3) the stage of the proceedings and

the amount of discovery completed; (4) the risks of establishing

liability; (5) the risks of establishing damages; (6) the risks

of maintaining the class action through trial; (7) the ability

of the defendants to withstand a greater judgment; (8) the range

of reasonableness of the settlement fund in light of the best

possible recovery; and (9) the range of reasonableness of the

settlement fund to a possible recovery in light of all the

attendant risks of litigation. Girsh, 521 F.2d at 157.

7

The Prudential factors are: (1) the maturity of the

underlying substantive issues, as measured by experience in

adjudicating individual actions, the development of scientific

knowledge, the extent of discovery on the merits, and other

factors that bear on the ability to assess the probable outcome

of a trial on the merits of liability and individual damages;

(2) the existence and probable outcome of claims by other

classes and subclasses; (3) the comparison between the results

achieved by the settlement for individual class or subclass

members and the results achieved--or likely to be achieved--for

other claimants; (4) whether class or subclass members are

accorded the right to opt out of the settlement; (5) whether any

provisions for attorneys’ fees are reasonable; and (6) whether

the procedure for processing individual claims under the

settlement is fair and reasonable. In re Prudential, 148 F.3d at

323.

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Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 25 of 42
Injury Litig., 821 F.3d 410, 437 (3d Cir. 2016) (“In re Nat’l Football League II”).
The Court will address the relevant Girsh, Prudential, and Rule 23(e)(2) factors below.
1. The Girsh Factors a. The Complexity, Expense, and Likely Duration of the Litigation
The first Girsh factor is “intended to capture ‘the probable costs, in both time and money, of continued litigation.’” In re Gen. Motors Corp., 55 F.3d at 812 (quoting Bryan v. Pittsburgh Plate Glass Co. (PPG Indus., Inc.), 494 F.2d 799, 801 (3d Cir. 1974)). The Court concludes, given the time and expense already expended on the claims at issue, that if the litigation continued, the costs, of both time and money, would be significant. For example, the continued litigation would entail additional discovery, including depositions, additional motions on class certification, summary-judgment briefing, and potentially trial. Weighing this risk against the relief afforded in the Consent Decree, the Court concludes that this factor supports approval of the Consent Decree.
b. The Reaction of the Class to the Settlement In relation to the second Girsh factor, when the objectors are few and the class members many, there is a strong presumption in favor of approving the settlement. See, e.g., In
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Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 26 of 42
re Cendant Corp., 264 F.3d at 235 (“The vast disparity between the number of potential class members who received notice of the [s]ettlement and the number of objectors creates a strong presumption that this factor weighs in favor of the [s]ettlement.”). Here, the parties sent the class notice to approximately 35,000 potential class members and received over 2,300 claims. However, there were only nine objections. Of those objections, only four took issue with the Restitutionary Fund or how it is to be distributed. One of those four objected to the eligibility dates but was ultimately included in the claimant count. While the Court denied the objections during the hearing, its acceptance of class counsel’s redistribution of the cy pres fund would likely have mooted them in any event as they sought additional money. Finally, only fifteen individuals opted out of the class. Therefore, this factor also weighs in favor of the Consent Decree.
c. The Stage of the Proceedings and the Amount of Discovery Completed
The third Girsh factor considers whether the parties’ attorneys have an “adequate appreciation of the merits of the case before negotiating” the settlement. In re Gen. Motors Corp., 55 F.3d at 813. Here, counsel have engaged in significant motion practice and the attendant investigation and research over the last six years. There is no question that they are well
26

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 27 of 42
versed in the merits of the case. Therefore, this factor weighs in favor of the Consent Decree.
d. The Risks of Establishing Liability Here, the Consent Decree, as accepted by the Court, provides for significant monetary compensation as well as full injunctive relief. The Court balances this against the uncertainties of dispositive motions practice and trial, and concludes that fourth Girsh factor weighs in favor of the Consent Decree.
e. The Risks of Establishing Damages The fifth Girsh factor balances the “potential damage award if the case were taken to trial against the benefits of an immediate settlement.” In re Nat’l Football League II, 821 F.3d at 439 (quoting In re Prudential, 148 F.3d at 319). Constitutional litigation is a “complex and . . . risky” endeavor. Boone v. City of Philadelphia, 668 F. Supp. 2d 693, 712 (E.D. Pa. 2009). Even though the value of seized and forfeited property can be calculated through the District Attorney’s forfeiture records, full restitution of Plaintiffs’ property would not be guaranteed at trial. In light of the uncertainty in proving the amount of damages, the Court concludes that this factor weighs in favor of the Consent Decree.
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Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 28 of 42
f. The Risks of Maintaining the Class Action Through Trial
The Court concludes that the sixth Girsh factor is neutral since there are no particular signs that the certified class for this Consent Decree could not be maintained throughout the suit. See Ripley v. Sunoco, Inc., 287 F.R.D. 300, 313 (E.D. Pa. 2012) (finding that this Girsh factor was neutral where “there [wa]s no apparent reason why the [c]ourt would decertify or modify [a] class at any time during the litigation”).
g. The Ability of the Defendants to Withstand a Greater Judgment
“The seventh Girsh factor is most relevant when the defendant’s professed inability to pay is used to justify the amount of the settlement.” In re Nat’l Football League II, 821 F.3d at 440. Cities are typically short of revenue to fund competing priorities and Philadelphia is no exception. The Court concludes that the Consent Decree adequately compensates the class members without creating a financial emergency for the City or depriving its citizens of needed municipal services. Thus, the Court concludes that this factor favors the Consent Decree.
h. The Range of Reasonableness of the Settlement Fund
The eighth and ninth factors are the range of reasonableness of the settlement fund in light of the best
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Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 29 of 42
possible recovery and the attendant risks of litigation. These factors examine “whether the settlement represents a good value for a weak case or a poor value for a strong case.” In re Warfarin, 391 F.3d at 538. Plaintiffs have strong constitutional claims in this case, however, the exact amount of damages is uncertain. The Consent Decree provides many of the class members 75% to 100% of the value of what was forfeited. Under the payment structure approved by the Court, all class members will also receive a fixed monetary payment to compensate them for the alleged constitutional violations. The Court concludes that a Consent Decree with these terms is a “good value” and that these factors weigh in favor of approval.
The Court concludes that the Girsh factors favor approving the Consent Decree.
2. The Prudential Factors Again, the non-mandatory Prudential factors are: (1) the maturity of the underlying substantive issues, as measured by experience in adjudicating individual actions, the development of scientific knowledge, the extent of discovery on the merits, and other factors that bear on the ability to assess the probable outcome of a trial on the merits of liability and individual damages; (2) the existence and probable outcome of claims by other classes and subclasses; (3) the comparison between the results achieved by the settlement for individual
29

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 30 of 42
class or subclass members and the results achieved--or likely to be achieved--for other claimants; (4) whether class or subclass members are accorded the right to opt out of the settlement; (5) whether any provisions for attorneys’ fees are reasonable; and (6) whether the procedure for processing individual claims under the settlement is fair and reasonable. In re Prudential, 148 F.3d at 323.
The first Prudential factor has been discussed within the Girsh factors. It weighs in favor of the Consent Decree as discussed above.
The second factor asks whether other classes or subclasses are getting a better deal. See, e.g., Vista Healthplan, Inc. v. Cephalon, Inc., No. 06-CV-1833, 2020 WL 1922902, at *23 (E.D. Pa. Apr. 21, 2020) (finding that settlement satisfied this factor because “there do not appear to be any disparities in the success of the settlements obtained by the various claimants”). In this case, all members of the Restitutionary Class are also receiving the benefits of the only other sub-classes, the Injunctive Classes for the Courtroom Claims, which are discussed in a separate memorandum. Therefore, this factor weighs in favor of the Consent Decree.
The third factor is not relevant because there are no other claimants other than the individual class members.
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The fourth factor supports approval of the Consent Decree because class members were given the opportunity to exclude themselves from the Restitutionary Class and not be bound by the Consent Decree.
The fifth factor also favors approval. As discussed in a separate order granting counsel’s unopposed fee petition, the Court has concluded that counsel’s fees are reasonable. Counsel seek $2,630,000 in attorneys’ fees to be paid separately from and in addition to the $3 million settlement fund. The number of hours for which they are seeking compensation, 9,800, are reasonable given the complexity and length of this case.8 Their rates are also reasonable for this geographic area. Ultimately, Counsel has sought twenty percent less than the lodestar and have forgone payment for many hours of work.
The sixth factor supports approval of the Consent Decree because the method for processing claims is fair and reasonable. As discussed above, all class members will receive monetary payments and, in addition, the Innocent Claimants will receive 100% of the value of their forfeited property and the Diversionary Claimants will receive 75% of the value of their property. The claims are also processed by an experienced Claims

8

Counsel reported to the Court that they will continue

to represent the Plaintiffs and class members in the litigation

after class certification and approval of the Consent Decree and

during the enforcement aspects of the case, and that they will

not seek additional compensation for that work.

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Administrator. See Alexander v. Coast Prof’l, No. 12-CV-1461, 2016 WL 861329, at *7 (E.D. Pa. Mar. 7, 2016) (holding that, where class counsel retained and supervised a court-approved and experienced class administrator, “[t]he claims processing procedures in place [we]re fair and reasonable”).
The Court concludes that a weighing of the Prudential factors also underscores the fairness of the Consent Decree.
3. The Rule 23(e)(2) Factors a. Whether the Class Representatives and Class Counsel Have Adequately Represented the Class
In making this determination, “the focus at this point is on [counsel’s] actual performance.” Fed. R. Civ. P. 23(e)(2), advisory committee’s note to 2018 amendment. The Court concludes that this factor weighs in favor of settlement. In addition to the points raised above in connection with the adequacy of the class representatives and class counsel, it is clear that Plaintiffs’ counsel is well informed, and their actual performance has been laudable.
b. Whether the Proposal Was Negotiated at Arm’s Length
Here, all evidence points to an arm’s length negotiation, including the involvement of a neutral facilitator. See supra Fn. 4; Fed. R. Civ. P. 23(e)(2), Advisory Committee’s note to 2018 amendment (“[T]he involvement of a neutral or
32

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 33 of 42
court-affiliated mediator or facilitator in those negotiations may bear on whether they were conducted in a manner that would protect and further the class interests.”). Therefore, this factor weighs in favor of the Consent Decree.
c. Whether the Relief Provided for the Class Was Adequate
In connection with this factor, Rule 23(e) lists four subfactors for the Court to consider:
(i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3).” Fed. R. Civ. P. 23(e)(2)(C). Fed. R. Civ. P. 23(e).
First, as noted in regards to the first Girsh factor, continued litigation would entail significant time and expense. As discussed in conjunction with the sixth Prudential factor, the method for processing the claims is effective and reasonable. As the Court found in granting Plaintiffs’ motion for fees, the proposed award of attorneys’ fees is reasonable. Finally, the last subfactor is not relevant here.
d. Whether the Proposal Treats Class Members Equitably Relative to Each Other
This factor “calls attention to a concern that may apply to some class action settlements--inequitable treatment of
33

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 34 of 42

some class members vis-a-vis others.” Fed. R. Civ. P. 23(e)(2), advisory committee’s note to 2018 amendment. “Matters of concern could include whether the apportionment of relief among class members takes appropriate account of differences among their claims, and whether the scope of the release may affect class members in different ways that bear on the apportionment of relief.” Id.
The Restitutionary Claims Consent Decree’s tiered system for monetary awards attempts to distinguish between the claims of the different types of class members. Under the distribution plan that the Court has now adopted, every class member receives a monetary payment and a percentage of the value of their forfeited property in proportion to the level of personal culpability found in the underlying criminal case which led to the forfeiture. The Court concludes that the Consent Decree with this distribution plan meets this factor because it appropriately accounts for the differences in claims.9

9

The Court directed the parties to redistribute a

portion of the proposed cy pres award from cy pres to the class

members. See, pp. 6-7, infra. Both parties suggested a tiered

system depending on the outcome of the prosecutions in the

underlying criminal cases. Thus, the Innocent Claimants would

receive the highest distribution, the Diversionary Claimants

would be next, and the Convicted Claimants would receive the

least amount of the recovery.

The Court recognizes that while the nature of the

constitutional violations is the same across all three groups of

Claimants, the harm caused by the constitutional violations

varies with the most harm inflicted upon the Innocent Claimants

34

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 35 of 42
The Court also concludes that the $2,500 incentive payment for the Named Plaintiffs is neither unusual nor unreasonable.
In order “to be entitled to an incentive award,” a “plaintiff must show: (1) the risks that the named plaintiff undertook in commencing class action; (2) any additional burdens assumed by named plaintiffs but not unnamed class members; and (3) the benefits generated to class members through named plaintiff’s efforts.” Fry v. Hayt, Hayt & Landau, 198 F.R.D. 461, 473 (E.D. Pa. 2000). This is a high-profile case. The Named Plaintiffs took reputational risks in that their names and their and their families’ alleged misdeeds have been publicized in court proceedings, on the parties’ websites, and through local and national media. The Named Plaintiffs have also spent considerable time and effort to further the class’s cause, far above what was expected of other class members. Finally, the Named Plaintiffs were instrumental in bringing this case and generating the benefits of the Consent Decrees for all class
and the least on the Convicted Claimants, with the Diversionary Claimants somewhere in the “middle.” Therefore, the Court does not find that the tiered categories based upon the underlying criminal conduct treats class members inequitably as to each other.
35

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 36 of 42

members. Thus, the Named Plaintiffs are entitled to a modest incentive payment of $2,500 each.10
For all these reasons, the Court concludes that an analysis of the Rule 23(e)(2) factors also confirms that the Consent Decree is fair and reasonable.
4. The Fairness of the Monetary Award Structure and the Cy Pres Provision
The Court must also determine whether the cy pres provision in the Consent Decree is fair, in that it is balanced with the class’ right to receive sufficient direct benefit. In re Baby Prods. Antitrust Litig., 708 F.3d 163, 174 (3d Cir. 2013); see Schwartz v. Dallas Cowboys Football Club, Ltd., 362 F. Supp. 2d 574, 576 (E.D. Pa. 2005) (providing that in determining whether a cy pres provision is fair, “the court should consider (1) the objectives of the underlying statute(s), (2) the nature of the underlying suit, (3) the interests of the class members, and (4) the geographic scope of the case”).
“The term ‘cy pres’ is derived from the Norman French expression cy pres comme possible, which means ‘as near as possible.’” In re Baby Prods., 708 F.3d at 168 (quoting Democratic Cent. Comm. v. Washington Metro. Area Transit Comm’n,

10

The incentive award amount is also not an outlier

among incentive awards granted in other class actions. For

example, one study of incentive awards granted between 2006 and

2011 indicates that the median incentive award in the United

States was $5,250. William B. Rubenstein, Newberg on Class

Actions § 17.8 (5th ed. Nov. 2018).

36

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 37 of 42
84 F.3d 451, 455 n.1 (D.C. Cir. 1996)). The purpose of a cy pres award in a class action settlement is to provide a method for distributing any residual settlement funds which may exist after all known parties are compensated and the fees and costs are paid.
Money may remain unclaimed if class members cannot be located, decline to file claims, have died, or the parties have overestimated the amount projected for distribution for some other reason. It may also be economically or administratively infeasible to distribute funds to class members if, for example, the cost of distributing individually to all class members exceeds the amount to be distributed. Id. at 169. When such a residual fund exists, courts may permit “the parties to distribute to a nonparty (or nonparties) the excess settlement funds for their next best use--a charitable purpose reasonably approximating the interests pursued by the class.” Id.
This is a Section 1983 suit seeking to redress constitutional injuries. At heart in the competing allocations submitted by the parties for the distribution of cy pres is whether the Consent Decree should maximize the recovery by the class members, or reserve a substantial part of the recovery for abetting social conditions in the geographic area where most members of the class reside. Of course, cy pres awards are appropriate and legitimate and under certain circumstances can even serve a public purpose. But when there is a fund available
37

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 38 of 42
and eligible class members who can benefit from further financial distribution at little administrative cost, the Court, as fiduciary to the class, must intervene.
At the final fairness hearing, the Court concluded that a 27% cy pres award was not in the best interest of the class members and, thus, was not fair. “Cy pres distributions, while in our view permissible, are inferior to direct distributions to the class because they only imperfectly serve the purpose of the underlying causes of action--to compensate class members.” Id. Reduction of the unexpectedly large cy pres award will allow additional compensation for the class members whose constitutional rights were violated.
The Defendants contend that, under their proposal, which raises the award to the Innocent and Diversionary Claimants (but not to the Convicted Claimants), the class members would be “fully compensated” for the alleged constitutional violations perpetrated upon them, as well as the fear, loss, frustration, and anxiety that accompany those violations. The Defendants suggested that the larger cy pres award be donated to community social agencies in the geographic area where most of the class members reside who were the subject of the unconstitutional forfeitures. The Defendants contend that this distribution would better address the root issues raised in
38

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 39 of 42

this lawsuit and that anything more to the class members would be a windfall, especially for the Convicted Claimants.11
The Defendants’ suggestion marginally lowers the cy pres fund from 27% to 21%, which the Court concludes is not sufficient to address the Court’s concerns and earn its approval. “Barring sufficient justification, cy pres awards should generally represent a small percentage of total settlement funds.” Id. at 174. The Court concludes that the Defendants have not provided “sufficient justification” for their proposal of a significant cy pres award at the expense of greater awards to the actual members of the lawsuit.
Thus, the Court declines to follow the Defendants’ suggestion. One, this large cy pres award (21% of the recovery) conflicts with Third Circuit jurisprudence. See Id. at 169 (“Cy pres distributions . . . are inferior to direct distributions to the class.”). Two, while distributions to social agencies may be a laudable goal, a cy pres award is not a vehicle by which the court, the parties, or counsel may use monies from the class settlement to propagate their own brand of social justice. Three, while there is no magic formula that defines the size of an award which compensates class members for the violations of

11

And yet, the Defendants have already agreed that

compensating this class of claimants, albeit at a lower rate, is

appropriate.

39

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 40 of 42
their individual rights, here, the Court finds no “obvious windfall” or “excessiveness” in the individual amounts to be distributed to the Convicted Claimants.
The Court concludes that class counsel’s distribution suggestion in which: (1) the Innocent Claimants receive $800 (instead of $90) and 100% of the value of their forfeited property; (2) the Diversionary Claimants receive $600 (instead of $90) and 75% of the value of their forfeited property; and (3) the Convicted Claimants receive $200 (instead of $90) and 0% of the value of their forfeited property, is the fairest of the competing suggestions. This distribution allots nearly all the settlement money to the class members, whom the Third Circuit has held should be the primary recipients of a class settlement.
The cy pres recipient chosen by the parties is the Philadelphia Foundation. The Philadelphia Foundation describes itself as follows:
For more than a century, Philadelphia Foundation has increased philanthropic investment in the community, fostering the economic, civic and social vitality of Greater Philadelphia.
We take charitable dollars further through our deep relationships in the community, close connections with local nonprofits and 100-year history of building positive outcomes in the Philadelphia region.
Born of a desire for more powerful, permanent funding to address community needs, we collaborate with thousands of individuals, families and businesses to advance this goal, always with an eye on the future. As we enter our second century of service, our
40

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 41 of 42
vision remains grounded in the needs of today and tomorrow and is shaped by the values we hold close, including excellence, diversity, equity and results.
From Ben Franklin’s civic gift of 1,000 pounds sterling to Gerry Lenfest’s endowment for independent journalism, Philadelphia Foundation stewards legacies that strengthen the place we call home, improving lives today and for future generations. https://www.philafound.org/about-us (last visited January 26, 2021). The Court concludes that designating the remaining funds, which should amount to about $24,000, to this organization for the express purpose of aiding those communities that were most affected by the forfeiture scheme furthers the goals of Section 1983 and the goals of this case. It also aligns with the interests of the class members and is geographically relevant.
Thus, the Court concludes that the award structure and cy pres provision, as described by the Court, contribute to the overall fairness of the settlement.
III. CONCLUSION In that Rules 23(a) and (b)(3) have been met,
certification of the settlement class is proper. Moreover, a review of the Girsh, Prudential, and Rule 26(e)(2) factors indicate that the terms of the Consent Decree, as described by the Court, appear fair, reasonable, and adequate, and the purpose of the cy pres award, the designation of a recipient, and the reduced amount of the award adds to the overall fairness
41

Case 2:14-cv-04687-ER Document 364 Filed 01/27/21 Page 42 of 42 of the settlement. As a result, the Court will grant in part Plaintiffs’ Consent Motion and Memorandum in Support of Final Approval of Class Certification and Consent Decree on Plaintiffs’ Fifth and Sixth Claims for Relief, certify the Restitutionary Class, and will approve the Consent Decree as modified above.
An appropriate order follows.
42

 
 Case 2:14-cv-04687-ER Document 367-1 Filed 02/15/21 Page 1 of 6
PLAINTIFFS’ NOTICE OF FILING SECOND ADDENDUM OF PROPOSED REVISED CONSENT DECREE ON PLAINTIFFS’
FIFTH AND SIXTH CLAIMS FOR RELIEF EXHIBIT 1
Sourovelis v. City of Philadelphia

Case 2:14-cv-04687-ER Document 367-1 Filed 02/15/21 Page 2 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOS SOUROVELIS, et al., Plaintiffs,
vs.
CITY OF PHILADELPHIA, et al., Defendants.

Civil Action No. 2:14-cv-04687 Assigned to the Honorable Judge Robreno
Special Management Track

ADDENDUM TO PROPOSED REVISED CONSENT DECREE ON PLAINTIFFS’ FIFTH AND SIXTH CLAIMS FOR RELIEF 1. This is a Second Addendum to the Proposed Revised Consent Decree (ECF 3311) on Plaintiffs’ Fifth and Sixth Claims for Relief (“Consent Decree”) in Sourovelis, et al. v. City of Philadelphia, et al., No. 2:14-cv-04687 (E.D. Pa.). The parties previously executed a First Addendum to the Consent Decree for the purpose of modifying the cy pres provisions set forth in Section X of the Consent Decree so as provide awards to individuals who filed claims but are outside of the Restitutionary Class because the properties which they held or hold legal title to, or otherwise had or have a legal interest in, were subject to a Statutory or Common Law civilforfeiture petition that was no longer pending as of August 11, 2012. See ECF 331-2. 2. The purpose of this Second Addendum is to increase the flat award amounts from the Restitutionary Fund received by members of the Restitutionary Class and the individuals identified above consistent with the Court’s Memorandum Opinion of January 27, 2021 (ECF 364). Thus, the provisions of this Second Addendum will govern in place of Paragraph 47(a). 3. Members of the Restitutionary Class who were neither convicted nor received a Diversionary Disposition in the criminal case associated with their forfeiture shall receive $800.00. Members of the Restitutionary Class who received Diversionary Dispositions in the
1

Case 2:14-cv-04687-ER Document 367-1 Filed 02/15/21 Page 3 of 6 criminal case associated with their forfeiture shall receive $600.00. Members of the Restitutionary Class who were convicted in the criminal case associated with their forfeiture shall receive $200.00. Respectfully Submitted,
2

Case 2:14-cv-04687-ER Document 367-1 Filed 02/15/21 Page 4 of 6

For Plaintiffs
Date: February 8, 2021
INSTITUTE FOR JUSTICE
By: /s/ Robert Frommer
Robert P. Frommer* Dan Alban* Robert Peccola* Milad Emam* 901 North Glebe Road, Suite 900 Arlington, VA 22203 Email: rfrommer@ij.org; dalban@ij.org; rpeccola@ij.org memam@ij.org Tel: (703) 682-9320 Fax: (703) 682-9321 *Admitted Pro Hac Vice
Counsel for Plaintiffs

KAIRYS, RUDOVSKY, MESSING, FEINBERG & LIN
David Rudovsky (I.D. Number 15168) The Cast Iron Building 718 Arch Street Suite 501 South Philadelphia, PA 19106 Tel: (215) 925-4400 Email: drudovsky@krlawphila.com
Local Counsel for Plaintiffs

3

Case 2:14-cv-04687-ER Document 367-1 Filed 02/15/21 Page 5 of 6

Case 2:14-cv-04687-ER Document 367-1 Filed 02/15/21 Page 6 of 6
For the City Defendants Date: February 12, 2021 By: /s/ Diana P. Cortes ACTING CITY SOLICITOR DIANA P. CORTES By: /s/ Anne B. Taylor CITY OF PHILADELPHIA LAW DEPARTMENT Anne B. Taylor 1515 Arch Street, 14th Floor Philadelphia, PA 19102 Tel: (215) 683-5444 Email: anne.taylor@phila.gov Counsel for Defendants City of Philadelphia, Mayor James F. Kenney, and Police Commissioner Danielle Outlaw
5

 
 Create an Alert for This Case on RECAP

CLOSED,DOC-RESTRICT,SPECIAL

United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:14-cv-04687-ER

SOUROVELIS et al v. CITY OF PHILADELPHIA et al Assigned to: HONORABLE EDUARDO C. ROBRENO related Cases: 2:19-cv-04028-ER
2:20-cv-00556-ER Cause: 42:1983 Civil Rights Act

Date Filed: 08/11/2014 Date Terminated: 02/17/2021 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff CHRISTOS SOUROVELIS

represented by DARPANA M. SHETH INSTITUTE FOR JUSTICE 901 N GLEBE ROAD SUITE 900 ARLINGTON, VA 22203 703-682-9320 Email: dsheth@ij.org TERMINATED: 09/03/2020 LEAD ATTORNEY

SCOTT G. BULLOCK INSTITUTE FOR JUSTICE 901 N GLEBE ROAD SUITE 900 ARLINGTON, VA 22203 703-682-9320 Email: sbullock@ij.org TERMINATED: 04/13/2016 LEAD ATTORNEY

WILLIAM H. MELLOR INSTITUTE FOR JUSTICE 901 N. GLEBE RD SUITE 900 ARLINGTON, VA 22203 703-682-9320 Email: paralegal@ij.org TERMINATED: 04/13/2016 LEAD ATTORNEY

Plaintiff

DAN ALBAN INSTITUTE FOR JUSTICE 901 N GLEBE ROAD SUITE 900 ARLINGTON, VA 22203 703-682-9320 Email: dalban@ij.org ATTORNEY TO BE NOTICED
DAVID RUDOVSKY KAIRYS RUDOVSKY MESSING FEINBERG & LIN, LLP THE CAST IRON BLDG STE 501 SOUTH 718 ARCH STREET PHILADELPHIA, PA 19106 215-925-4400 Fax: 215-925-5365 Email: drudovsky@krlawphila.com ATTORNEY TO BE NOTICED
MILAD EMAM INSTITUTE FOR JUSTICE 901 N GLEBE ROAD SUITE 900 ARLINGTON, VA 22203 703-682-9320 Email: memam@ij.org ATTORNEY TO BE NOTICED
ROBERT P. FROMMER INSTITUTE FOR JUSTICE 901 N GLEBE ROAD SUITE 900 ARLINGTON, VA 22203 703-682-9320 Email: rfrommer@ij.org ATTORNEY TO BE NOTICED
ROBERT A. PECCOLA INSTITUTE FOR JUSTICE 901 N GLEBE RD SUITE 900 ARLINGTON, VA 22203 703-682-9320 Email: rpeccola@ij.org ATTORNEY TO BE NOTICED

DOILA WELCH
Plaintiff NORYS HERNANDEZ

represented by DARPANA M. SHETH (See above for address) TERMINATED: 09/03/2020 LEAD ATTORNEY
SCOTT G. BULLOCK (See above for address) TERMINATED: 04/13/2016 LEAD ATTORNEY
WILLIAM H. MELLOR (See above for address) TERMINATED: 04/13/2016 LEAD ATTORNEY
DAN ALBAN (See above for address) ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) ATTORNEY TO BE NOTICED
MILAD EMAM (See above for address) ATTORNEY TO BE NOTICED
ROBERT P. FROMMER (See above for address) ATTORNEY TO BE NOTICED
ROBERT A. PECCOLA (See above for address) ATTORNEY TO BE NOTICED
represented by DARPANA M. SHETH (See above for address) TERMINATED: 09/03/2020 LEAD ATTORNEY
SCOTT G. BULLOCK (See above for address) TERMINATED: 04/13/2016 LEAD ATTORNEY

Plaintiff
NASSIR GEIGER on behalf of themselves and all others similarly situated

WILLIAM H. MELLOR (See above for address) TERMINATED: 04/13/2016 LEAD ATTORNEY
DAN ALBAN (See above for address) ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) ATTORNEY TO BE NOTICED
MILAD EMAM (See above for address) ATTORNEY TO BE NOTICED
ROBERT P. FROMMER (See above for address) ATTORNEY TO BE NOTICED
ROBERT A. PECCOLA (See above for address) ATTORNEY TO BE NOTICED
represented by DARPANA M. SHETH (See above for address) TERMINATED: 09/03/2020 LEAD ATTORNEY
DAN ALBAN (See above for address) ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) ATTORNEY TO BE NOTICED
MILAD EMAM (See above for address) ATTORNEY TO BE NOTICED
ROBERT P. FROMMER (See above for address) ATTORNEY TO BE NOTICED

V. Petitioner CRYSTAL R. CANTY TERMINATED: 03/04/2020
V. Defendant CITY OF PHILADELPHIA

ROBERT A. PECCOLA (See above for address) ATTORNEY TO BE NOTICED
represented by CRYSTAL R. CANTY 4131 N. BROAD ST PHILA., PA 19140 PRO SE
represented by ANNE B. TAYLOR CITY OF PHILA LAW DEPT 1515 ARCH ST 14TH FL PHILADELPHIA, PA 19102 215-683-5381 Fax: 215-683-5397 Email: anne.taylor@phila.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
DIMITRIOS MAVROUDIS City of Philadelphia Law Department Affirmative & General Litigation Unit 1515 Arch Street 15th Floor Philadelphia, PA 19102 215-683-5444 Fax: 215-683-5299 Email: dimitrios.mavroudis@phila.gov TERMINATED: 05/11/2015 LEAD ATTORNEY
MARK MAGUIRE PHILADELPHIA OFFICE OF CITY SOLICITOR 1515 ARCH STREET PHILADELPHIA, PA 19102

Defendant MICHAEL A. NUTTER IN HIS OFFICIAL CAPACITY AS MAYOR OF PHILADELPHIA TERMINATED: 09/15/2016
Defendant PHILADELPHIA DISTRICT ATTORNEY'S OFFICE

215-545-8800 Email: mmaguire@mceldrewyoung.com TERMINATED: 02/22/2020 LEAD ATTORNEY
MICHAEL R. MILLER U.S. Attorney's Office 615 Chestnut Street 12th Floor PHILADELPHIA, PA 19106 215-861-8312 Email: michael.miller@usdoj.gov TERMINATED: 12/18/2019 LEAD ATTORNEY
represented by DIMITRIOS MAVROUDIS (See above for address) TERMINATED: 05/11/2015 LEAD ATTORNEY
MICHAEL R. MILLER (See above for address) TERMINATED: 12/18/2019 LEAD ATTORNEY
represented by BRYAN C. HUGHES U.S. Attorney's Office Eastern District of Pennsylvania 615 Chestnut Street Suite 1250 Philadelphia, PA 19106 (215) 861-8433 Fax: (215) 861-8618 Email: bryan.hughes@usdoj.gov TERMINATED: 04/04/2018 LEAD ATTORNEY
ELIZABETH J. RUBIN OFFICE OF DISTRICT ATTORNEY 3 SOUTH PENN SQUARE PHILADELPHIA, PA 19107 215-686-8787

LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL R. MILLER (See above for address) TERMINATED: 12/18/2019 LEAD ATTORNEY
PETER CARR Ahmad Zaffarese LLC 1 South Broad Street Suite 1801 PHILADELPHIA, PA 19107 215-496-9373 Email: pcarr@azlawllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN T. JACKAL PHILADELPHIA DISTRICT ATTORNEY'S OFFICE 3 S. PENN SQUARE PHILADELPHIA, PA 19107 215-686-5714 Email: benjamin.jackal@phila.gov ATTORNEY TO BE NOTICED
BRANDEN JAMES ALBAUGH PHILADELPHIA DISTRICT ATTORNEY'S OFFICE 3 SOUTH PENN SQUARE PHILADELPHIA, PA 19107 215-686-5732 Email: branden.albaugh@phila.gov TERMINATED: 03/02/2018
CATHERINE KIEFER Delaware County District Attorney's Office Delaware County Courthouse Media, PA 19063 610-891-4202 Email: kieferc@co.delaware.pa.us TERMINATED: 12/17/2019
DOUGLAS WECK

Defendant
SETH R. WILLIAMS IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF PHILADELPHIA

WHITE AND WILLIAMS LLP ONE LIBERTY PLACE 1650 MARKET STREET SUITE 1800 PHILADELPHIA, PA 19103-7395 856-317-3665 Email: weckd@whiteandwilliams.com ATTORNEY TO BE NOTICED
JOHN ANDREW JENEMANN PHILA. DISTRICT ATTORNEY'S OFFICE 3 SOUTH PENN SQUARE PHILADELPHIA, PA 19107 215-686-5819 Fax: 215-686-9698 Email: andrew.jenemann@phila.gov ATTORNEY TO BE NOTICED
NANCY WINKELMAN Philadelphia District Attorney's Office 3 South Penn Square PHILADELPHIA, PA 19107 215-686-5700 Email: nancy.winkelman@phila.gov ATTORNEY TO BE NOTICED
SIMRAN DHILLON Philadelphia District Attorney's Office 3 South Penn Square PHILADELPHIA, PA 19107 215-864-8064 Email: simran.g.dhillon@phila.gov ATTORNEY TO BE NOTICED
represented by BRYAN C. HUGHES (See above for address) TERMINATED: 04/04/2018 LEAD ATTORNEY
ELIZABETH J. RUBIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant CHARLES H. RAMSEY IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF PHILADELPHIA POLICE DEPARTMENT TERMINATED: 09/15/2016
Defendant RICHARD ROSS , JR. in his official capacity as Commissioner of the Philadelphia Police Department

MICHAEL R. MILLER (See above for address) TERMINATED: 12/18/2019 LEAD ATTORNEY
PETER CARR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRANDEN JAMES ALBAUGH (See above for address) TERMINATED: 03/02/2018
CATHERINE KIEFER (See above for address) TERMINATED: 12/17/2019
DOUGLAS WECK (See above for address) ATTORNEY TO BE NOTICED
SIMRAN DHILLON (See above for address) ATTORNEY TO BE NOTICED
represented by DIMITRIOS MAVROUDIS (See above for address) TERMINATED: 05/11/2015 LEAD ATTORNEY
MICHAEL R. MILLER (See above for address) TERMINATED: 12/18/2019 LEAD ATTORNEY
represented by RICHARD ROSS , JR. PRO SE
MICHAEL R. MILLER (See above for address) TERMINATED: 12/18/2019 LEAD ATTORNEY

Defendant
SHELIA A. WOODS-SKIPPER in her official capacity as Chair of the Administrative Governing Board of the FIrst Judicial District of Pennsylvania

represented by MICHAEL DALEY SUPREME COURT OF PA ADMINISTRATIVE OFFICE OF PA COURTS 1515 MARKET ST., STE 1414 PHILADELPHIA, PA 19102 215-560-6300 Email: legaldepartment@pacourts.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

ANDREW J. COVAL SUPREME COURT OF PA ADMINISTRATIVE OFFICE OF PA COURTS 1515 MARKET ST., SUITE 1414 PHILADELPHIA, PA 19102 215-560-6300 Email: legaldepartment@pacourts.us TERMINATED: 07/20/2020

Defendant
JACQUELINE F. ALLEN in her official capacity as a member of the Administrative Governing Board of the FIrst Judicial District of Pennsylvania

represented by MICHAEL DALEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW J. COVAL (See above for address) TERMINATED: 07/20/2020

Defendant
JOSEPH H. EVERS in his official capacity as Court Administrator of the FIrst Judicial District of Pennsylvania

represented by MICHAEL DALEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ANDREW J. COVAL (See above for address) TERMINATED: 07/20/2020

Defendant

CHARLES A. MAPP in his official capacity as Chief Deputy Court Administrator of the First Judicial District of Pennsylvania
Defendant JAMES F. KENNEY in his official capacity as Mayor of Philadelphia

represented by MICHAEL DALEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW J. COVAL (See above for address) TERMINATED: 07/20/2020
represented by MARK MAGUIRE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL R. MILLER (See above for address) TERMINATED: 12/18/2019 LEAD ATTORNEY

V. Movant CHARLES TALBERT TERMINATED: 09/09/2020
Movant LUIS OYOLA

represented by CHARLES TALBERT QA-4727 SCI DALLAS 1000 FOLLIES ROAD DALLAS, PA 18612 PRO SE
represented by LUIS OYOLA 4305A RHAWN STREET PHILADELPHIA, PA 19136 Email: LUIS.OYOLA.71.LO@GMAIL.COM PRO SE

Date Filed 08/11/2014

# Docket Text
1 COMPLAINT against CITY OF PHILADELPHIA, MICHAEL A. NUTTER, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, CHARLES H. RAMSEY, SETH R. WILLIAMS ( Filing fee $ 400

08/11/2014 08/11/2014 08/11/2014 08/11/2014 08/11/2014 08/11/2014 08/11/2014 08/11/2014 08/11/2014

receipt number PPE105806.), filed by DOILA WELCH, CHRISTOS SOUROVELIS, NORYS HERNANDEZ. (Attachments: # 1 Civil Cover Sheet, # 2 Designation Form, # 3 Case Management Track Form)(jmv, ) (Entered: 08/11/2014)
Summons Issued as to CITY OF PHILADELPHIA, MICHAEL A. NUTTER, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, CHARLES H. RAMSEY, SETH R. WILLIAMS. Forwarded To: 5 Origs given to counsel on 8/11/14 (jmv, ) (Entered: 08/11/2014)
2 Disclosure Statement Form pursuant to FRCP 7.1 by NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.(jmv, ) (Entered: 08/11/2014)
3 MOTION TO CERTIFY A RULE 23(B)(2) CLASS FILED BY NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Proposed Order)(jmv, ) (Entered: 08/11/2014)
4 Memorandum of Law In Support of 3 MOTION to Certify Class filed by NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (jmv, ) (Entered: 08/11/2014)
5 NOTICE OF CONSTITUTIONAL QUESTION FILED BY NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH (jmv, ) (Entered: 08/11/2014)
6 APPLICATION TO APPEAR PRO HAC VICE OF WILLIAM H. MELLOR, ESQ. by NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 ECF Appl, # 2 Validation)(jmv, ) (Entered: 08/11/2014)
7 APPLICATION TO APPEAR PRO HAC VICE OF SCOTT G. BULLOCK, ESQ. NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 ECF Appl, # 2 Validation)(jmv, ) (Entered: 08/11/2014)
8 APPLICATION TO APPEAR PRO HAC VICE FILED BY NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 ECF Appl, # 2 Validation)(jmv, ) (Entered: 08/11/2014)
9 APPLICATION TO APPEAR PRO HAC VICE OF NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 ECF Appl, # 2 Validation)(jmv, ) (Entered: 08/11/2014)

08/11/2014 08/11/2014 08/11/2014 08/11/2014 08/11/2014 08/12/2014 08/12/2014 08/12/2014 08/12/2014

10 AFFIDAVIT of Service by michael doyle re: served complaint upon Charles Ramsey by hand delivery on August 11, 2014; answer due 9/2/14. (RUDOVSKY, DAVID) Modified on 8/12/2014 (fb). (Entered: 08/11/2014)
11 AFFIDAVIT of Service by mike doyle re: served complaint upon city of philadelphia by hand delivery on august 11, 2014; answer due 9/2/14. (RUDOVSKY, DAVID) Modified on 8/12/2014 (fb). (Entered: 08/11/2014)
12 AFFIDAVIT of Service by mike doyle re: served complaint upon Mayor Michael Nutter by hand delivery on august 11, 2014; answer due 9/2/14. (RUDOVSKY, DAVID) Modified on 8/12/2014 (fb). (Entered: 08/11/2014)
13 AFFIDAVIT of Service by mike doyle re: served complaint upon Office of District Attorney by hand on august 11, 2014; answer due 9/2/14. (RUDOVSKY, DAVID) Modified on 8/12/2014 (fb). (Entered: 08/11/2014)
14 AFFIDAVIT of Service by mike doyle re: served complaint upon R. Seth Williams by hand on august 11, 2014; answer due 9/2/14. (RUDOVSKY, DAVID) Modified on 8/12/2014 (fb). (Entered: 08/11/2014)
15 ORDER THAT THE MOTION TO ADMIT WILLIAM H. MELLOR PRO HAC VICE FOR PLAINTIFFS IS GRANTED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/12/14. 8/12/14 ENTERED AND COPIES MAILED, E-MAILED, MAILED TO UNREPS.(jl, ) (Entered: 08/12/2014)
16 ORDER THAT THE MOTION TO ADMIT SCOTT G. BULLOCK PRO HAC VICE FOR PLAINTIFFS IS GRANTED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/12/14. 8/12/14 ENTERED AND COPIES MAILED, E-MAILED, MAILED TO UNREPS.(jl, ) (Entered: 08/12/2014)
17 ORDER THAT THE MOTION TO ADMIT ROBERT P. FROMMER PRO HAC VICE FOR PLAINTIFFS IS GRANTED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/12/14. 8/12/14 ENTERED AND COPIES MAILED, E-MAILED, MAILED TO UNREPS.(jl, ) (Entered: 08/12/2014)
18 ORDER THAT THE MOTION TO ADMIT DARPANA SHETH PRO HAC VICE FOR PLAINTIFFS IS GRANTED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/12/14. 8/12/14

08/20/2014 08/20/2014 09/08/2014 09/08/2014 09/08/2014
09/08/2014
09/15/2014 09/16/2014

ENTERED AND COPIES MAILED, E-MAILED, MAILED TO UNREPS.(jl, ) (Entered: 08/12/2014)
Set/Reset Deadlines as to 3 MOTION to Certify Class. RESPONSES DUE BY 10/2/2014. (jl, ) (Entered: 08/20/2014)
19 STIPULATION AND ORDER THAT ALL DEFENDANTS WILL HAVE UNTIL 10/2/14 TO SUBMIT RESPONSES TO PLAINTIFFS COMPLAINT AND PLAINTIFFS MOTION TO CERTIFIED A RULE 23 (b)(2); ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/20/14. 8/20/14 ENTERED AND E-MAILED.(jl, ) (Entered: 08/20/2014)
20 Motion for Preliminary Injunction on Plaintiffs' First Claim for Relief filed by NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Proposed Order)(SHETH, DARPANA) Modified on 9/10/2014 (fb). (Entered: 09/08/2014)
21 Memorandum re 20 MOTION for Preliminary Injunction filed by NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (SHETH, DARPANA) (Entered: 09/08/2014)
22 Declaration re 20 MOTION for Preliminary Injunction of Darpana Sheth by NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Ex. 1_Sheth Declaration, # 2 Ex.2_Sheth Declaration, # 3 Ex.3_Sheth Declaration, # 4 Ex.4_Sheth Declaration, # 5 Ex.5_Sheth Declaration, # 6 Ex.6_Sheth Declaration, # 7 Ex.7_Sheth Declaration, # 8 Certificate of Service_Sheth Declaration)(SHETH, DARPANA) (Entered: 09/08/2014)
23 Declaration re 20 MOTION for Preliminary Injunction of Markela Sourovelis by NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Ex.1_Sourovelis Declaration, # 2 Ex.2_Sourovelis Declaration, # 3 Ex.3_Sourovelis Declaration, # 4 Ex.4_Sourovelis Declaration, # 5 Ex.5_Sourovelis Declaration, # 6 Ex.6_Sourovelis Declaration, # 7 Ex.7_Sourovelis Declaration, # 8 Ex.8_Sourovelis Declaration, # 9 Ex.9_Sourovelis Declaration, # 10 Certificate of Service_Sourovelis Declaration)(SHETH, DARPANA) (Entered: 09/08/2014)
24 MOTION for Extension of Time to File a Response to the Motion for Preliminary Injunction filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS.Memorandum, Certificate of Service.(RUBIN, ELIZABETH) (Entered: 09/15/2014)
25 RESPONSE in Opposition re 24 MOTION for Extension of Time to File a Response to the Motion for Preliminary Injunction filed by

09/16/2014
09/16/2014 10/02/2014 10/02/2014 10/02/2014 10/02/2014 10/02/2014

NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Proposed Order)(SHETH, DARPANA) (Entered: 09/16/2014)
26 ORDER THAT THE MOTION FOR EXTENSION OF TIME TO FILE IS GRANTED. DEFENDANTS R. SETH WILLIAMS AND THE PHILADELPHIA DISTRICT ATTORNEY'S OFFICE MAY FILE A RESPONSE TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION ON OR BEFORE 10/2/2014. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 9/15/2014.9/16/2014 ENTERED AND COPIES E-MAILED.(kp, ) (Entered: 09/16/2014)
Set/Reset Deadlines as to 20 MOTION for Preliminary Injunction . RESPONSES DUE BY 10/2/2014. (kp, ) (Entered: 09/16/2014)
27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss for Lack of Jurisdiction filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS.Memorandum, Certificate of Service. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order, # 3 Certificate of Service)(HUGHES, BRYAN) (Entered: 10/02/2014)
28 RESPONSE in Opposition re 20 MOTION for Preliminary Injunction filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS. (Attachments: # 1 Memorandum, # 2 Exhibit Declaration of Daren Waite, # 3 Exhibit Declaration of Steven Agami, # 4 Exhibit Declaration of James Dellafiora, # 5 Text of Proposed Order, # 6 Certificate of Service)(HUGHES, BRYAN) (Entered: 10/02/2014)
29 RESPONSE in Opposition re 3 MOTION to Certify Class filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS. (Attachments: # 1 Memorandum, # 2 Exhibit Declaration of Beth Grossman, # 3 Text of Proposed Order, # 4 Certificate of Service)(HUGHES, BRYAN) (Entered: 10/02/2014)
30 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss for Lack of Jurisdiction filed by CITY OF PHILADELPHIA, MICHAEL A. NUTTER, CHARLES H. RAMSEY.. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order, # 3 Certificate of Service)(MAVROUDIS, DIMITRIOS) (Entered: 10/02/2014)
31 RESPONSE in Opposition re 20 MOTION for Preliminary Injunction filed by CITY OF PHILADELPHIA, MICHAEL A. NUTTER, CHARLES H. RAMSEY. (Attachments: # 1 Memorandum, # 2 Text of

10/02/2014 10/17/2014
10/17/2014 10/22/2014 10/24/2014
11/10/2014 11/10/2014 11/10/2014

Proposed Order, # 3 Certificate of Service)(MAVROUDIS, DIMITRIOS) (Entered: 10/02/2014)
32 RESPONSE in Opposition re 3 MOTION to Certify Class filed by CITY OF PHILADELPHIA, MICHAEL A. NUTTER, CHARLES H. RAMSEY. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order, # 3 Certificate of Service)(MAVROUDIS, DIMITRIOS) (Entered: 10/02/2014)
33 STIPULATION AND ORDER THAT PLAINTIFFS WILL HAVE UNTIL 11/17/14 TO EITHER RESPOND TO DEFENDANTS MOTION TO DISMISS OR FILE AN AMENDED COMPLAINT; ETC.. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 10/17/14. 10/17/14 ENTERED AND E-MAILED.(jl, ) (Entered: 10/17/2014)
Set/Reset Scheduling Order Deadlines: AMENDED PLEADINGS DUE BY 11/17/2014. (jl, ) (Entered: 10/17/2014)
34 NOTICE: A Pretrial Conference will be held on November 13, 2014 at 2:00 p.m. in Courtroom 15A before the HONORABLE EDUARDO C. ROBRENO.(nds) (Entered: 10/22/2014)
35 MOTION for Leave to File Reply Memorandum in Support of Motion for Preliminary Injunction filed by NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Memorandum. (Attachments: # 1 Memorandum Reply Memorandum in Support of Motion for Preliminary Injunction, # 2 Declaration Supplemental Declaration of Darpana M. Sheth, # 3 Declaration Declaration of Doila Welch)(SHETH, DARPANA) (Additional attachment(s) added on 12/2/2014 with Chambers permission: # 4 Text of Proposed Order) (nd, ). Modified on 12/2/2014 (nd, ). (Entered: 10/24/2014)
36 STATUS REPORT Joint Status Report by NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Judge Robreno's Rule 26(f) Joint Status Report Form)(SHETH, DARPANA) (Entered: 11/10/2014)
37 NOTICE: The pretrial conference previously scheduled for November 13, 2014 is hereby RESCHEDULED until December 5, 2014 a 3:30 p.m. in Courtroom 15A before the HONORABLE EDUARDO C. ROBRENO.(nds) (Entered: 11/10/2014)
38 Motion for Leave to File a Surreply Memorandum in Further Opposition re 20 MOTION for Preliminary Injunction filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS. (Attachments: # 1 Memorandum Surreply Memorandum

11/12/2014 11/17/2014 11/19/2014
12/02/2014 12/08/2014 12/08/2014

in Opposition to Motion for Preliminary Injunction, # 2 Exhibit Exhibit A -- IJ Article, # 3 Exhibit Exhibit B -- Hernandez Answer, # 4 Exhibit Exhibit C -- Declaration of Assistant District Attorney Jennifer Kralle, # 5 Text of Proposed Order Proposed Order, # 6 Certificate of Service Certificate of Service)(HUGHES, BRYAN) Modified on 11/12/2014 (fb). (Entered: 11/10/2014)
39 PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS SURREPLY MEMORANDUM IN FURTHER OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION. (jl, ) (Entered: 11/12/2014)
40 FIRST AMENDED COMPLAINT against CITY OF PHILADELPHIA, MICHAEL A. NUTTER, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, CHARLES H. RAMSEY, SETH R. WILLIAMS, filed by DOILA WELCH, CHRISTOS SOUROVELIS, NASSIR GEIGER, NORYS HERNANDEZ, CERTIFICATE OF SERVICE.(jl, ) (Entered: 11/18/2014)
41 MOTION for Leave to File Reply in Support of Plaintiffs' Motion to Certify a Rule 23(b)(2) Class filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Memorandum. (Attachments: # 1 Exh A - Reply Rememorandum in Support of Plaintiffs' Motion to Certify a Rule 23(b)(2) Class, # 2 Exh B - Hardy v. DC - Complaint, # 3 Exh C_Geiger Docket No. CP-51-MD-0004622-2014, # 4 Exh D_Geiger Docket No. CP-51-MD-0000896-2014, # 5 Exh E_Geiger Docket No. CP-51-MD-0003396-2014, # 6 Proposed Order)(SHETH, DARPANA) (Entered: 11/19/2014)
42 Revised Joint Status Report by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Judge Robreno's Rule 26(f) Joint Status Report Form - Revised)(SHETH, DARPANA) Modified on 12/3/2014 (fb). (Entered: 12/02/2014)
43 ORDER THAT A STATUS CONFERENCE AND SCHEDULING CONFERENCE IS SET FOR 1/15/2015 04:00 PM IN COURTROOM 15A, US COURTHOUSE, 601 MARKET STREET, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 12/8/14. 12/8/14 ENTERED AND COPIES E-MAILED. (va, ) (Entered: 12/08/2014)
44 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO Status and Scheduling Conference held on 12/5/14 Court Reporter: Jeff Lucini. (va, ) (Entered: 12/08/2014)

01/09/2015 01/12/2015
01/13/2015 01/16/2015 01/16/2015 01/16/2015
03/02/2015 03/03/2015

45 MOTION for Leave to File Surreply Memorandum filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS.Memorandum, Certificate of Service. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order, # 3 Certificate of Service)(WECK, DOUGLAS) (Entered: 01/09/2015)
46 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss for Lack of Jurisdiction filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS.Memorandum, Certificate of Service. (Attachments: # 1 Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Text of Proposed Order, # 6 Certificate of Service)(HUGHES, BRYAN) (Entered: 01/12/2015)
47 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss for Lack of Jurisdiction filed by CITY OF PHILADELPHIA, MICHAEL A. NUTTER, CHARLES H. RAMSEY.. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order, # 3 Certificate of Service)(MAVROUDIS, DIMITRIOS) (Entered: 01/13/2015)
48 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO STATUS AND Scheduling Conference held on 1/15/15. Court Reporter: ESR. (jl, ) (Entered: 01/16/2015)
Set/Reset Hearings: SCHEDULING CONFERENCE SET FOR 3/2/2015 10:00 AM BEFORE HONORABLE EDUARDO C. ROBRENO. STATUS CONFERENCE SET FOR 3/2/2015 10:00 AM BEFORE HONORABLE EDUARDO C. ROBRENO. (jl, ) (Entered: 01/16/2015)
49 ORDER THAT THE MOTIONS LISTED WILL BE DISMISSED WITHOUT PREJUDICE. ALL DISCOVERY IN THE CASE AND ANY FILING DEADLINES ARE STAYED UNTIL FURTHER ORDER OF THE COURT. A STATUS AND SCHEDULING CONFERENCE WILL BE HELD ON 3/2/15 AT 10:00 A.M.; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/16/15. 1/16/15 ENTERED AND E-MAILED.(jl, ) (Entered: 01/16/2015)
50 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO Status Conference held on 3/2/15. (jl, ) (Entered: 03/02/2015)
Set/Reset Scheduling Order Deadlines:, Set/Reset Deadlines as to ( MOTION HEARING SET FOR 5/4/2015 02:00 PM BEFORE HONORABLE EDUARDO C. ROBRENO.) MOTION TO DISMISS DUE BY 3/16/2015. (jl, ) (Entered: 03/03/2015)

03/03/2015 03/16/2015 03/19/2015 03/20/2015 03/20/2015
04/03/2015

51 ORDER THAT DEFENDANTS WILL HAVE UNTIL 3/16/15 TO FILE ANY MOTIONS TO DISMISS. A HEARING REGARDING DEFENDANTS MOTION TO DISMISS WILL BE SCHEDULED FOR 5/4/15 AT 2:00 P.M.; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 3/2/15. 3/3/15 ENTERED AND EMAILED.(jl, ) (Entered: 03/03/2015)
52 Joint MOTION to Dismiss for Lack of Jurisdiction , Joint MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by CITY OF PHILADELPHIA, MICHAEL A. NUTTER, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, CHARLES H. RAMSEY, SETH R. WILLIAMS.Memorandum, Declaration, Certificate of Service. (Attachments: # 1 Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Text of Proposed Order, # 6 Certificate of Service)(HUGHES, BRYAN) (Entered: 03/16/2015)
53 Consent MOTION for Extension of Time to File Response/Reply Brief to Defendants' Motion to Dismiss filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Proposed Order)(SHETH, DARPANA) (Entered: 03/19/2015)
Set/Reset Deadlines as to 52 Joint MOTION to Dismiss for Lack of Jurisdiction Joint MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . RESPONSES DUE BY 4/3/2015. REPLIES DUE BY 4/13/2015. (jl, ) (Entered: 03/23/2015)
54 ORDER THAT THE MOTION FOR EXTENSION OF TIME IS GRANTED. PLAINTIFFS MUST FILE A RESPONSE TO DEFENDANTS JOINT MOTION TO DISMISS FIRST AMENDED COMPLAINT ON OR BEFORE 4/3/15. DEFENDANTS MAY FILE A REPLY IN SUPPORT OF DEFENDANTS JOINT MOTION TO DISMISS FIRST AMENDED COMPLAINT ON OR BEFORE 4/13/15; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 3/20/15. 3/23/15 ENTERED AND E-MAILED.(jl, ) (Entered: 03/23/2015)
55 RESPONSE in Opposition re 52 Joint MOTION to Dismiss for Lack of Jurisdiction Joint MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Declaration of Scott Bullock, # 2 Exhibit A_Bullock, # 3 Exhibit B_Bullock, # 4 Exhibit C_Bullock, # 5 Exhibit D_Bullock, # 6 Exhibit E_Bullock, # 7 Declaration of Briana Elzey, # 8 Text of Proposed Order)(SHETH, DARPANA) (Entered: 04/03/2015)

04/13/2015 04/22/2015 04/22/2015 04/22/2015 04/22/2015 05/01/2015 05/06/2015

56 Joint MOTION for Leave to File REPLY MEMORANDUM filed by CITY OF PHILADELPHIA, MICHAEL A. NUTTER, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, CHARLES H. RAMSEY, SETH R. WILLIAMS.Memorandum, Declaration, Certificate of Service. (Attachments: # 1 Memorandum, # 2 Declaration, # 3 Text of Proposed Order, # 4 Certificate of Service)(HUGHES, BRYAN) (Entered: 04/13/2015)
57 TRANSCRIPT of held on 12/5/14, before Judge ROBRENO. Court Reporter/Transcriber ESR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/13/2015. Redacted Transcript Deadline set for 5/26/2015. Release of Transcript Restriction set for 7/21/2015. STATUS AND SCHEDULING CONFERENCE HEARING(jl, ) (Entered: 04/22/2015)
58 TRANSCRIPT of held on 1/15/15, before Judge ROBRENO. Court Reporter/Transcriber ESR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/13/2015. Redacted Transcript Deadline set for 5/26/2015. Release of Transcript Restriction set for 7/21/2015. STATUS AND SCHEDULING CONFERENCE HEARING(jl, ) (Entered: 04/22/2015)
59 TRANSCRIPT of held on 3/2/15, before Judge ROBRENO. Court Reporter/Transcriber ESR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/13/2015. Redacted Transcript Deadline set for 5/26/2015. Release of Transcript Restriction set for 7/21/2015. STATUS AND SCHEDULING CONFERENCE HEARING(jl, ) (Entered: 04/22/2015)
60 Notice of Filing of Official Transcript with Certificate of Service re 58 Transcript - PDF, 59 Transcript - PDF, 57 Transcript - PDF, 4/22/15 Entered and Copies Emailed. (jl, ) (Entered: 04/22/2015)
61 STATUS REPORT Second Revised Joint Status Report by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Judge Robreno's Rule 26(f) Joint Status Report Form - Second Revised)(SHETH, DARPANA) (Entered: 05/01/2015)
62 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO Motion Hearing held on 5/4/15 re 52 Joint MOTION to

05/08/2015 05/11/2015 05/12/2015 05/12/2015 05/12/2015 05/12/2015 05/15/2015 05/19/2015

Dismiss for Lack of Jurisdiction Joint MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by CHARLES H. RAMSEY, CITY OF PHILADELPHIA, SETH R. WILLIAMS, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, MICHAEL A. NUTTER Court Reporter: ESR. (jl, ) (Entered: 05/06/2015)
63 NOTICE of Appearance by MICHAEL R. MILLER on behalf of CITY OF PHILADELPHIA, MICHAEL A. NUTTER, CHARLES H. RAMSEY with Certificate of Service(MILLER, MICHAEL) (Entered: 05/08/2015)
64 NOTICE of Withdrawal of Appearance by DIMITRIOS MAVROUDIS on behalf of CITY OF PHILADELPHIA, MICHAEL A. NUTTER, CHARLES H. RAMSEY(MAVROUDIS, DIMITRIOS) (Entered: 05/11/2015)
65 DEFENDANTS REPLY MEMORANDUM IN FURTHER SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT(jl, ) (Entered: 05/12/2015)
66 MEMORANDUM AND ORDER THAT DEFENDANT MOTION TO DISMISS AMENDED COMPLAINT IS DENIED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 5/12/15. 5/12/15 ENTERED AND E-MAILED.(jl, ) (Entered: 05/12/2015)
67 ORDER THAT DEFENDANTS JOINT MOTION FOR LEAVE TO FILE A REPLY MEMORANDUM IS GRANTED. DEFENDANTS JOINT MOTION TO DISMISS IS DENIED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 5/12/15. 5/12/15 ENTERED AND E-MAILED.(jl, ) (Entered: 05/12/2015)
68 ORDER THAT A PRETRIAL CONFERENCE IS SCHEDULED FOR 5/28/15 AT 9:00 A.M.; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 5/12/15. 5/12/15 ENTERED AND EMAILED.(jl, ) (Entered: 05/12/2015)
69 ORDER THAT THE PRETRIAL CONFERENCE PREVIOUSLY SCHEDULED FOR 5/28/15 IS HEREBY RESCHEDULED TO 6/15/15 AT 10:00 A.M.; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO. 5/15/15 ENTERED AND EMAILED.(jl, ) (Entered: 05/15/2015)
70 TRANSCRIPT of held on 5/4/15, before Judge ROBRENO. Court Reporter/Transcriber ESR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 6/9/2015.

05/19/2015 05/20/2015 05/26/2015
05/26/2015 05/28/2015 06/03/2015 06/12/2015 06/15/2015

Redacted Transcript Deadline set for 6/19/2015. Release of Transcript Restriction set for 8/17/2015. MOTION TO DISMISS HEARING(jl, ) (Entered: 05/19/2015)
71 Notice of Filing of Official Transcript with Certificate of Service re 70 Transcript - PDF, 5/19/15 Entered and Copies Emailed. (jl, ) (Entered: 05/19/2015)
72 ANSWER to 40 Amended Complaint, by CITY OF PHILADELPHIA, MICHAEL A. NUTTER, CHARLES H. RAMSEY.(MILLER, MICHAEL) (Entered: 05/20/2015)
73 MOTION for Reconsideration re 67 Order (Memorandum and/or Opinion), 66 Memorandum and/or Opinion filed by CITY OF PHILADELPHIA, MICHAEL A. NUTTER, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, CHARLES H. RAMSEY, SETH R. WILLIAMS.Memorandum, Certificate of Service. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order, # 3 Certificate of Service)(WECK, DOUGLAS) (Entered: 05/26/2015)
74 ANSWER to 40 Amended Complaint, by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS.(HUGHES, BRYAN) (Main Document 74 replaced on 5/27/2015) (fb). Modified on 5/27/2015 (fb). (Entered: 05/26/2015)
75 Consent MOTION for Extension of Time to File Response/Reply as to 73 MOTION for Reconsideration re 67 Order (Memorandum and/or Opinion), 66 Memorandum and/or Opinion filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Text of Proposed Order Proposed Order)(FROMMER, ROBERT) (Entered: 05/28/2015)
76 ORDER THAT THE MOTION FOR EXTENSION OF TIME IS GRANTED. PLAINTIFFS MUST FILE A RESPONSE TO DEFENDANTS JOINT MOTION FOR RECONSIDERATION ON OR BEFORE 6/23/15; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/3/15. 6/3/15 ENTERED AND E-MAILED.(jl, ) (Entered: 06/03/2015)
77 STATUS REPORT Third Revised Joint Status Report by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Judge Robreno's Rule 26(f) Joint Status Report Form - Third Revised)(SHETH, DARPANA) (Entered: 06/12/2015)
78 STATUS REPORT by CITY OF PHILADELPHIA, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS. (FILED

06/15/2015 06/15/2015 06/16/2015 06/17/2015 06/22/2015
06/23/2015 06/26/2015 06/26/2015

IN ERROR; SEE PAPER # 77 ). (MILLER, MICHAEL) Modified on 6/15/2015 (fb). Modified on 6/16/2015 (jl, ). (DOCUMENT REMOVED PURSUANT TO COURT ORDER #81) (Main Document 78 replaced on 6/16/2015) (jl, ). (Entered: 06/15/2015)
79 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO Pretrial Conference held on 6/15/15. Court Reporter: ESR. (jl, ) (Entered: 06/15/2015)
80 ORDER THAT THE PRETRIAL CONFERENCE HELD ON 6/15/15 IS CONTINUED UNTIL 6/26/15 AT 9:30 A.M.; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/15/15. 6/16/15 ENTERED AND E-MAILED.(jl, ) (Entered: 06/16/2015)
81 ORDER THAT THE CLERK OF THE COURT SHALL REMOVE DEFENDANTS STATUS REPORT (ECF NO.78) FROM THE DOCKET, AS IT WAS PREMATURELY; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/16/15. 6/16/15 ENTERED AND E-MAILED.(jl, ) (Entered: 06/16/2015)
82 ORDER THAT PLAINTIFF'S MOTION FOR CLASS CERTIFICATION IS DENIED WITHOUT PREJUDICE; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/17/15.6/17/15 ENTERED AND E-MAILED.(jl, ) (Entered: 06/17/2015)
83 Joint MOTION to Certify Settlement Classes and Preliminarily Approve Settlement of Plaintiffs' First and Second Claims for Relief filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Proposed Settlement Agreement for Plaintiffs' First and Second Claims for Relief, # 2 Proposed Order)(SHETH, DARPANA) (Entered: 06/22/2015)
84 Memorandum In Opposition re 73 MOTION for Reconsideration re 67 Order (Memorandum and/or Opinion), 66 Memorandum and/or Opinion filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (SHETH, DARPANA) (Entered: 06/23/2015)
85 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO Initial Pretrial Conference held on 6/26/15 Court Reporter: ESR. (jl, ) (Entered: 06/26/2015)
Set/Reset Scheduling Order Deadlines:( STATUS CONFERENCE SET FOR 10/19/2015 02:00 PM BEFORE HONORABLE EDUARDO C. ROBRENO., DISCOVERY DUE BY 9/24/2015.), Set/Reset Deadlines

06/26/2015
06/26/2015 07/22/2015 07/24/2015 07/28/2015 07/29/2015 08/21/2015

as to 83 Joint MOTION to Certify Settlement Classes and Preliminarily Approve Settlement of Plaintiffs' First and Second Claims for Relief.( MOTION HEARING SET FOR 7/20/2015 03:30 PM BEFORE HONORABLE EDUARDO C. ROBRENO.), Set/Reset Hearings:( STATUS CONFERENCE SET FOR 10/19/2015 02:00 PM BEFORE HONORABLE EDUARDO C. ROBRENO., SCHEDULING CONFERENCE SET FOR 10/19/2015 02:00 PM BEFORE HONORABLE EDUARDO C. ROBRENO.) (jl, ) (Entered: 06/26/2015)
86 ORDER THAT A HEARING WILL BE HELD ON 7/20/15 AT 3:30 P.M. IN WHICH TIME THE COURT WILL CONSIDER THE JOINT MOTION TO CERTIFY SETTLEMENT CLASSES AND PRELIMINARILY APPROVE SETTLEMENT OF PLAINTIFFS FIRST AND SECOND CLAIMS FOR RELIEF; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/26/15. 6/26/15 ENTERED AND E-MAILED.(jl, ) (Entered: 06/26/2015)
87 ORDER THAT WRITTEN DISCOVERY WILL PROCEED UNTIL 9/24/15. A STATUS AND SCHEDULING CONFERENCE WILL BE HELD ON 10/19/15 AT 2:00 P.M.; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/26/15. 6/26/15 ENTERED AND EMAILED.(jl, ) (Entered: 06/26/2015)
88 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO Motion Hearing held on 7/20/15 re 83 Joint MOTION to Certify Settlement Classes and Preliminarily Approve Settlement of Plaintiffs' First and Second Claims for Relief filed by NORYS HERNANDEZ, CHRISTOS SOUROVELIS, NASSIR GEIGER, DOILA WELCH Court Reporter: ESR. (jl, ) (Entered: 07/22/2015)
89 MOTION for Pro Hac Vice filed by CHRISTOS SOUROVELIS.certificate of service.(RUDOVSKY, DAVID) (Entered: 07/24/2015)
90 ORDER THAT THE MOTION TO ADMIT ROBERT A. PECCOLA PRO HAC VICE IS GRANTED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 7/28/15. 7/29/15 ENTERED AND COPIES MAILED, E-MAILED.(jl, ) (Entered: 07/29/2015)
91 SETTLEMENT AGREEMENT Proposed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Notice of Proposed Settlement Agreement)(SHETH, DARPANA) (Entered: 07/29/2015)
92 TRANSCRIPT of HEARING held on 6/26/2015, before Judge Robreno. Court Reporter/Transcriber ESR/ TRANSCRIBERS

08/21/2015 08/21/2015
08/21/2015
08/21/2015 08/31/2015
08/31/2015 09/24/2015

LIMITED. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 9/11/2015. Redacted Transcript Deadline set for 9/21/2015. Release of Transcript Restriction set for 11/19/2015. (kp, ) (Entered: 08/21/2015)
93 Notice of Filing of Official Transcript with Certificate of Service re 92 Transcript - PDF. 8/21/2015 Entered and Copies Emailed. (kp, ) Modified on 8/24/2015 (lisad, ). (Entered: 08/21/2015)
94 TRANSCRIPT of Hearing held on 7/20/15, before Judge Robreno. Court Reporter/Transcriber Transcribers Limited. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 9/11/2015. Redacted Transcript Deadline set for 9/21/2015. Release of Transcript Restriction set for 11/19/2015. (fdc) (Entered: 08/24/2015)
95 TRANSCRIPT of Rule 16 Status & Scheduling Conference held on 6/15/15, before Judge Robreno. Court Reporter/Transcriber Transcribers Limited. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/11/2015. Redacted Transcript Deadline set for 9/21/2015. Release of Transcript Restriction set for 11/19/2015. (fdc) (Entered: 08/24/2015)
96 Notice of Filing of Official Transcript with Certificate of Service re 94 Transcript - PDF, 95 Transcript - PDF,, 8/24/15 Entered and Copies Emailed and Mailed. (fdc) (Entered: 08/24/2015)
97 ORDER THAT AFTER A HEARING REGARDING THE PARTIES' JOINT MOTION TO CERTIFY, IT IS HEREBY ORDERED THAT THE MOTION IS GRANTED; A FAIRNESS HEARING WILL BE HELD ON 11/2/2015, AT 2:00 PM IN COURTROOM 15A, U.S. COURTHOUSE, 601 MARKET STREET, PHILADELPHIA, PA; ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/28/15.8/31/15 ENTERED AND COPIES E-MAILED.(ti, ) (Entered: 08/31/2015)
Set/Reset Hearings(ti, ) (Entered: 08/31/2015)
98 MOTION for Pro Hac Vice filed by CHRISTOS SOUROVELIS.affidavit.(RUDOVSKY, DAVID). ($40 Fee Paid,

Receipt #PPE130425). Modified on 11/9/2015 (ahf, ). (Entered: 09/24/2015)

10/05/2015

99 ORDER THAT THE MOTION TO ADMIT MILAD EMAM AS COUNSEL PRO HAC VICE FOR PLAINTIFF IS GRANTED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 10/5/15. 10/6/15 ENTERED AND COPIES MAILED, E-MAILED.(jl, ) (Entered: 10/06/2015)

10/19/2015

100 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO Status and Scheduling Conference held on 10/19/15. Court Reporter: ESR. (jl, ) (Entered: 10/19/2015)

10/20/2015

101 ORDER THAT NUNC PRO TUNC THAT WRITTEN DISCOVERY WILL PROCEED UNTIL 1/22/16 ON COUNTS 3,4,5 AND 6 OF THE AMENDED COMPLAINT; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 10/19/15. 10/20/15 ENTERED AND E-MAILED.(jl, ) (Entered: 10/20/2015)

10/30/2015

102 MOTION to Certify Settlement Classes and Grant Final Approval of Settlement of Plaintiffs' First and Second Claims for Relief filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.. (Attachments: # 1 Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Text of Proposed Order)(SHETH, DARPANA) (Entered: 10/30/2015)

11/03/2015

103 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO Motion Hearing held on 11/2/15 re 83 Joint MOTION to Certify Settlement Classes and Preliminarily Approve Settlement of Plaintiffs' First and Second Claims for Relief filed by NORYS HERNANDEZ, CHRISTOS SOUROVELIS, NASSIR GEIGER, DOILA WELCH (jl, ) (Entered: 11/03/2015)

11/04/2015

104 ORDER THAT PLAINTIFFS UNOPPOSED MOTION TO CERTIFY SETTLEMENT CLASSES AND GRANT FINAL APPROVAL OF SETTLEMENT OF PLAINTIFFS FIRST AND SECOND CLAIMS FOR REFLIEF IS GRANTED. THE FIRST AND SECOND CLAIMS FOR RELIEF IN THE AMENDED COMPLAINT ARE DISMISSED WITHOUT PREJUDICE; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 11/3/15.11/4/15 ENTERED AND EMAILED.(jl, ) (Entered: 11/04/2015)

11/24/2015

105 TRANSCRIPT of held on 10/19/15, before Judge ROBRENO. Court Reporter/Transcriber ESR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 12/15/2015.

Redacted Transcript Deadline set for 12/28/2015. Release of Transcript Restriction set for 2/22/2016. TRANSCRIBERS LTD.(jl, ) (Entered: 11/24/2015)

11/24/2015 106 Notice of Filing of Official Transcript with Certificate of Service re 105 Transcript - PDF, 11/24/16 Entered and Copies Emailed. (jl, ) (Entered: 11/24/2015)

11/25/2015

107 TRANSCRIPT of held on 11/2/15, before Judge ROBRENO. Court Reporter/Transcriber ESR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 12/16/2015. Redacted Transcript Deadline set for 12/28/2015. Release of Transcript Restriction set for 2/23/2016. FAIRNESS HEARING TRANSCRIBERS LTD(jl, ) (Entered: 11/25/2015)

11/25/2015 108 Notice of Filing of Official Transcript with Certificate of Service re 107 Transcript - PDF, 11/25/15 Entered and Copies Emailed. (jl, ) (Entered: 11/25/2015)

01/20/2016

109 Joint MOTION for Extension of Time to Complete Discovery filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(SHETH, DARPANA) (Entered: 01/20/2016)

01/22/2016

110 ORDER THAT WRITTEN DISCOVERY ON COUNTS 3, 4,5, AND 6 OF THE AMENDED COMPLAINT WILL PROCEED UNTIL 3/4/16; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/22/16. 1/22/16 ENTERED AND E-MAILED.(jl, ) (Entered: 01/22/2016)

03/03/2016

111 Joint MOTION for Extension of Time to Complete Discovery filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Proposed Order)(SHETH, DARPANA) (Entered: 03/03/2016)

03/03/2016

112 ORDER THAT SECOND MOTION TO EXTEND DEADLINE FOR WRITTEN DISCOVERY IS GRANTED. WRITTEN DISCOVERY ON COUNTS 3,4,5 AND 6 OF THE AMENDED COMPLAINT WITH PROCEED UNTIL 6/2/16; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 3/3/16. 3/3/16 ENTERED AND EMAILED.(jl, ) (Entered: 03/03/2016)

04/06/2016 113 NOTICE by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH Notice of Substitution of Parties (SHETH, DARPANA) (Entered: 04/06/2016)

04/13/2016 114 NOTICE of Withdrawal of Appearance by WILLIAM H. MELLOR on behalf of All Plaintiffs (MELLOR, WILLIAM) (Entered: 04/13/2016)

04/13/2016 115 NOTICE of Withdrawal of Appearance by SCOTT G. BULLOCK on behalf of All Plaintiffs (BULLOCK, SCOTT) (Entered: 04/13/2016)

04/28/2016

116 ORDER THAT A TELEPHONE STATUS CONFERENCE SHALL BE HELD ON 5/17/16 AT 9:00 A.M.; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 4/27/16. 4/28/16 ENTERED AND E-MAILED.(jl, ) (Entered: 04/28/2016)

04/29/2016

117 Joint MOTION for Entry of Stipulated Protective Order filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Exh A_Stipulation Regarding Confidentiality and Privileged Information Inadvertently Disclosed In Discovery, # 2 Proposed Order)(SHETH, DARPANA) (Entered: 04/29/2016)

05/17/2016

118 MOTION to Certify Class on Plaintiffs' Fifth Claim for Relief filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Memorandum, Certificate of Service. RESPONSES DUE BY 5/31/2016. (Attachments: # 1 Memo In Support of Motion to Certify A Rule 23(b)(2) Class on Plaintiffs' Fifth Claim for Relief, # 2 Proposed Order)(SHETH, DARPANA) (Entered: 05/17/2016)

05/18/2016

119 ORDER THAT ANY MOTIONS FOR LEAVE TO JOIN OTHER PARTIES AS TO CLAIMS 3, 4 AND 6 OF PLAINTIFFS' FIRST AMENDED COMPLAINT SHALL BE FILED BY 7/18/16; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 5/17/16. 5/19/16 ENTERED AND E-MAILED.(jl, ) (Entered: 05/19/2016)

05/27/2016

120 MOTION for Extension of Time to File Response/Reply to Motion for Class Certification filed by CITY OF PHILADELPHIA, MICHAEL A. NUTTER, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, CHARLES H. RAMSEY, SETH R. WILLIAMS. Memorandum and Certificate of Service.(MILLER, MICHAEL) (Entered: 05/27/2016)

05/27/2016

121 ORDER THAT A TELEPHONE STATUS CONFERENCE SHALL BE HELD ON 6/2/16 AT 9:00 A.M.; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 5/27/16. 5/27/16 ENTERED AND E-MAILED.(jl, ) (Entered: 05/27/2016)

05/27/2016

122 RESPONSE to Motion re 120 MOTION for Extension of Time to File Response/Reply to Motion for Class Certification filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (SHETH, DARPANA) (Entered: 05/27/2016)

05/31/2016

123 Joint Discovery Plan as to Plaintiffs' Fifth Claim for Class Relief by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (SHETH, DARPANA) Modified on 6/1/2016 (fb). (Entered: 05/31/2016)

06/01/2016

124 ORDER THAT THE REQUEST TO CANCEL TELEPHONE CONFERENCE IS DENIED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/1/16. 6/1/16 ENTERED AND EMAILED.(jl, ) (Entered: 06/01/2016)

06/03/2016

125 ORDER THAT DEFENDANT'S MOTION FOR AN EXTENSION OF TIME IS DENIED AS MOOT; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/2/16. 6/3/16 ENTERED AND EMAILED.(jl, ) (Entered: 06/03/2016)

06/03/2016

126 ORDER THAT A TELEPHONE STATUS CONFERENCE SHALL BE HELD ON 8/15/16 AT 2:00 P.M.; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/2/16. 6/3/16 ENTERED AND E-MAILED.(jl, ) (Entered: 06/03/2016)

06/03/2016

127 ORDER THAT THE PARTIES JOINT MOTION FOR ENTRY OF A STIPULATED PROTECTIVE ORDER IS APPROVED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/2/16. 6/3/16 ENTERED AND E-MAILED.(jl, ) (Entered: 06/03/2016)

06/03/2016

128 STIPULATION REGARDING CONFIDENTIALITY AND PRIVILEGED INFORMATION INADVERTENTY DISCLOSED IN DISCOVERY WITH COURT APPROVAL RE: CERTAIN STATEMENTS. (jl, ) (Entered: 06/03/2016)

06/03/2016

Set/Reset Deadlines as to 118 MOTION to Certify Class on Plaintiffs' Fifth Claim for Relief. RESPONSES DUE BY 7/29/2016. MOTION HEARING SET FOR 9/26/2016 10:00 AM BEFORE HONORABLE EDUARDO C. ROBRENO. (jl, ) (Entered: 06/03/2016)

06/03/2016

129 SCHEDULING ORDER THAT DEFENDANTS RESPONSE TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION ON CLAIM 5 SHALL BE FILED BY 7/29/16. A HEARING ON PLAINTIFF'S MOTION FOR CLASS CERTIFICATION ON CLAIM 5 WILL BE HELD ON 9/26/16 AT 10:00 A.M.. ANY MOTIONS FOR LEAVE TO AMEND THE PLEADINGS AND ANY MOTIONS FOR LEAVE TO JOIN OTHER PARTIES AS TO CLAIM 5 SHALL BE FILED BY

12/15/16. ANY MOTIONS FOR SUMMARY JUDGMENT AS TO CLAIM 5 SHALL BE FILED BY 3/17/17. PRETRIAL MEMORANDUM AND ANY MOTIONS IN LIMINE SHALL BE FILED BY 4/21/17. THE CASE SHALL BE PLACED IN THE TRIAL POOL ON 5/1/17; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/2/16. 6/3/16 ENTERED AND E-MAILED.(jl, ) (Entered: 06/03/2016)

06/03/2016

Set/Reset Scheduling Order Deadlines: MOTION FOR SUMMARY JUDGMENT DUE BY 3/17/2017. (jl, ) (Entered: 06/03/2016)

06/13/2016

130 TRANSCRIPT of Telephonic Hearing held on 6/2/16, before Judge Eduardo C. Robreno. Court Reporter/Transcriber Veritext Transcription Service. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/5/2016. Redacted Transcript Deadline set for 7/14/2016. Release of Transcript Restriction set for 9/12/2016. (ti, ) Modified on 6/13/2016 (ti, ). (Entered: 06/13/2016)

06/13/2016

131 Notice of Filing of Official Transcript with Certificate of Service re 130 Transcript - PDF,, 6/13/16 Entered and Copies Emailed and Mailed. (ti, ) (Entered: 06/13/2016)

06/16/2016 132 MOTION for Pro Hac Vice filed by NASSIR GEIGER.affidavit.(RUDOVSKY, DAVID) (Entered: 06/16/2016)

06/28/2016

133 TRANSCRIPT of held on 5/17/16, before Judge ROBRENO. Court Reporter/Transcriber ESR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 7/19/2016. Redacted Transcript Deadline set for 7/29/2016. Release of Transcript Restriction set for 9/26/2016. TELEPHONE CONFERENCE VERITEXT NATIONAL COURT REPORTING COMPANY(jl, ) (Entered: 06/28/2016)

06/28/2016 134 Notice of Filing of Official Transcript with Certificate of Service re 133 Transcript - PDF,, 6/28/16 Entered and Copies Emailed. (jl, ) (Entered: 06/28/2016)

07/14/2016

135 Consent MOTION for Extension of Time to File Motion for Leave to Join Parties to Claims 3, 4, and 6 and File Amended Complaint filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Exhibit A)(SHETH, DARPANA) (Entered: 07/14/2016)

07/15/2016

136 ORDER THAT THE UNCONTESTED 135 MOTION TO EXTEND THE DEADLINE TO JOINT PARTIES AS TO CLAIMS 3,4, AND 6 OF PLAINTIFFS' FIRST AMENDED COMPLAINT BY TWO WEEKS, UNTIL MONDAY, 8/1/16, IS GRANTED. NO FURTHER EXTENSIONS WILL BE GRANTED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 7/14/16.7/15/16 ENTERED & EMAILED.(fdc) (Entered: 07/15/2016)

07/29/2016

137 RESPONSE in Opposition re 118 MOTION to Certify Class on Plaintiffs' Fifth Claim for Relief filed by CITY OF PHILADELPHIA, MICHAEL A. NUTTER, CHARLES H. RAMSEY. (Attachments: # 1 Exhibit A)(MILLER, MICHAEL) (Entered: 07/29/2016)

07/29/2016

138 RESPONSE in Opposition re 118 MOTION to Certify Class on Plaintiffs' Fifth Claim for Relief filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS. (Attachments: # 1 Exhibit A)(HUGHES, BRYAN) (Entered: 07/29/2016)

08/01/2016

139 MOTION for Joinder and Leave to File Amended Complaint and Sever Plaintiffs' Fifth Claim filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Memorandum in Support of Motion, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Proposed Order)(SHETH, DARPANA) (Entered: 08/01/2016)

08/05/2016

140 ORDER THAT THE TELEPHONE STATUS AND SCHEDULING CONFERENCE PREVIOUSLY SCHEDULED FOR AUGUST 15, 2016 IS HEREBY RESCHEDULED AND WILL NOW BE HELD INPERSON ON AUGUST 19, 2016 AT 2:00 P.M. IN COURTROOM 15A BEFORE THE HONORABLE EDUARDO C. ROBRENO. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 08/05/2016. 08/05/2016 ENTERED AND COPIES E-MAILED.(nds) Modified on 8/5/2016 (nds). (Entered: 08/05/2016)

08/10/2016

141 REPLY Memorandum in Support re 118 MOTION to Certify Class on Plaintiffs' Fifth Claim for Relief filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Declaration of Robert A. Peccola with Exhibits)(SHETH, DARPANA) Modified on 8/11/2016 (fb). (Entered: 08/10/2016)

08/15/2016

142 RESPONSE in Opposition re 139 MOTION for Joinder and Leave to File Amended Complaint and Sever Plaintiffs' Fifth Claim filed by CITY OF PHILADELPHIA, MICHAEL A. NUTTER, CHARLES H. RAMSEY. (MILLER, MICHAEL) (Entered: 08/15/2016)

08/15/2016

143 RESPONSE in Opposition re 139 MOTION for Joinder and Leave to File Amended Complaint and Sever Plaintiffs' Fifth Claim filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS. (HUGHES, BRYAN) (Entered: 08/15/2016)

08/18/2016

144 MOTION for Leave to File A Reply in Support of Plaintiffs' Motion to Join Defendant State Court Administrators, File a Second Amended Complaint, and Sever Plaintiffs' Fifth Claim for Relief filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Exhibit A_Consolidated Reply Mem. in Support of Plaintiffs' Motion to Join Defendant State Court Administrators, File a Second Amended Complaint, and Sever Plaintiffs' Fifth Claim for Relief, # 2 Proposed Order)(SHETH, DARPANA) (Entered: 08/18/2016)

08/18/2016

153 CONSOLIDATED REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION TO JOIN DEFENDANT STATE COURT ADMINISTRATORS, FILE A SECOND AMENDED COMPLAINT AND SEVER PLAINTIFFS' FIFTH CLAIM FOR RELIEF, CERTIFICATE OF SERVICE. (jl, ) (Main Document 153 replaced on 9/15/2016) (jl, ). (Entered: 09/15/2016)

08/19/2016

145 MOTION for Leave to File a Surreply Brief filed by CITY OF PHILADELPHIA. Memorandum and Certificate of Service. (Attachments: # 1 Exhibit A)(MILLER, MICHAEL) Modified on 8/22/2016 (lisad, ). (Entered: 08/19/2016)

08/19/2016

152 SURREPLY BRIEF IN SUPPORT OF THE CITY OF PHILADELPHIA OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND (jl, ) (Main Document 152 replaced on 9/15/2016) (jl, ). (Entered: 09/15/2016)

08/22/2016

146 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENOin Courtroom 15A.Status and Scheduling Conference held on 8/19/2016. Court Reporter: ESR. (ahf) (Entered: 08/22/2016)

08/23/2016

147 ORDER THAT THE MOTION FOR PRO HAC VICE ADMISSION 132 IS GRANTED; AND, DAN ALBAN IS ADMITTED IN THIS CASE AS COUNSEL PRO HAC VICE ON BEHALF OF THE PLAINTIFFS. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 08/23/2016. 08/23/2016 ENTERED AND COPIES MAILED AND E-MAILED.(nds) Modified on 8/23/2016 (nds). Modified on 10/12/2016 (jl, ). (fee paid on 10/12/16) (Entered: 08/23/2016)

08/25/2016 148 TRANSCRIPT of Status and Scheduling Conference held on 8/19/16, before Judge Robreno. Court Reporter/Transcriber ESR. Transcript

may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 9/15/2016. Redacted Transcript Deadline set for 9/26/2016. Release of Transcript Restriction set for 11/23/2016. STATUS AND SCHEDULING CONFERNCE. (VERITEXT TRANSCRIPTION SERVICE)(jl, ) Modified on 8/26/2016 (lisad, ). (Entered: 08/25/2016)

08/25/2016 149 Notice of Filing of Official Transcript with Certificate of Service re 148 Transcript - PDF,, 8/25/16 Entered and Copies Emailed, MAILED. (jl, ) (Entered: 08/25/2016)

09/07/2016

150 ORDER THAT DEFENDANT'S MOTION FOR RECONSIDERATION 73 IS HEREBY DENIED, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 09/07/2016. 09/07/2016 ENTERED AND COPIES E-MAILED.(nds) (Entered: 09/07/2016)

09/13/2016

151 MOTION to Amend/Correct Scheduling Order as to Plaintiffs' Fifth Claim for Relief filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Declaration of Robert Frommer, # 2 Frommer Declaration - Exhibit 1, # 3 Frommer Declaration - Exhibit 2, # 4 Frommer Declaration - Exhibit 3, # 5 Frommer Declaration - Exhibit 4, # 6 Proposed Order)(FROMMER, ROBERT) (Entered: 09/13/2016)

09/15/2016

154 ORDER THAT ANY MOTIONS FOR LEAVE TO JOIN OTHER PARTIES SHALL BE FILED BY 4/17/17. EXPERT DISCOVERY SHALL BE COMPLETED BY 6/2/17. ANY MOTIONS FOR SUMMARY JUDGMENT SHALL BE FILED BY 7/14/17; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 9/15/16. 9/15/16 ENTERED AND E-MAILED.(jl, ) (Entered: 09/15/2016)

09/15/2016

155 ORDER THAT PLAINTIFF'S MOTION FOR LEAVE TO FILE A REPLY IS GRANTED. DEFENDANTS MOTION TO SUBMIT A REPLY IS GRANTED. PLAINTIFF'S MOTION TO JOIN DEFENDANT STATE COURT ADMINISTRATORS, FILE A SECOND AMENDED COMPLAINT AND SEVER PLAINTIFF'S FIFTH CLAIM FOR RELIEF IS GRANTED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 9/14/16. 9/15/16 ENTERED AND E-MAILED.(jl, ) (Entered: 09/15/2016)

09/15/2016

156 ORDER THAT A TELEPHONE STATUS AND SCHEDULING CONFERNCE SHALL BE HELD ON SEPTEMBER 23, 2016 AT 4:00 P.M., ETC. SIGNED BY HONORABLE EDUARDO C.

ROBRENO ON 09/15/2016. 09/15/2016 ENTERED AND COPIES EMAILED.(nds) (Entered: 09/15/2016)

09/15/2016

157 SECOND AMENDED COMPLAINT against JACQUELINE F. ALLEN, CITY OF PHILADELPHIA, JOSEPH H. EVERS, JAMES F. KENNEY, CHARLES A. MAPP, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, RICHARD ROSS, JR, SETH R. WILLIAMS, SHELIA A. WOODS-SKIPPER, filed by DOILA WELCH, CHRISTOS SOUROVELIS, NASSIR GEIGER, NORYS HERNANDEZ, CERTIFICATE OF SERVICE.(jl, ) (Entered: 09/15/2016)

09/15/2016

6 AMENDED Summons Issued as to JACQUELINE F. ALLEN, JOSEPH H. EVERS, JAMES F. KENNEY, CHARLES A. MAPP, RICHARD ROSS, JR, SHELIA A. WOODS-SKIPPER. Forwarded To: DARPANA M. SHETH on 9/15/16 (jl, ) (Entered: 09/15/2016)

09/19/2016

158 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by CITY OF PHILADELPHIA, JAMES F. KENNEY, RICHARD ROSS, JR. Memorandum and Certificate of Service.(MILLER, MICHAEL) (Entered: 09/19/2016)

09/19/2016

159 MOTION for Leave to File a Surreply Brief filed by CITY OF PHILADELPHIA, JAMES F. KENNEY, RICHARD ROSS, JR. Memorandum and Certificate of Service. (Attachments: # 1 Exhibit A)(MILLER, MICHAEL) (Entered: 09/19/2016)

09/26/2016

160 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO. Motion Hearing held on 9/26/2016 re 118 MOTION to Certify Class on Plaintiffs' Fifth Claim for Relief filed by NORYS HERNANDEZ, CHRISTOS SOUROVELIS, NASSIR GEIGER, DOILA WELCH. Court Reporter: ESR. (ahf, ) (Entered: 09/26/2016)

09/29/2016

161 ANSWER to 157 Amended Complaint, by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS.(HUGHES, BRYAN) (Entered: 09/29/2016)

10/03/2016

162 TRANSCRIPT of held on 9/23/16, before Judge ROBRENO. Court Reporter/Transcriber ESR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 10/24/2016. Redacted Transcript Deadline set for 11/3/2016. Release of Transcript Restriction set for 1/3/2017. CLASS CERTIFICATION HEARING VERITEXT LEGAL SOLUTIONS(jl, ) (Entered: 10/03/2016)

10/03/2016

163 TRANSCRIPT of held on 9/26/16, before Judge ROBRENO. Court Reporter/Transcriber ESR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 10/24/2016. Redacted Transcript Deadline set for 11/3/2016. Release of Transcript Restriction set for 1/3/2017. CLASS CERTIFICATION HEARING VERITEXT LEGAL SOLUTIONS(jl, ) (Entered: 10/03/2016)

10/03/2016 164 Notice of Filing of Official Transcript with Certificate of Service re 162 Transcript - PDF,, 163 Transcript - PDF,, 10/3/16 Entered and Copies Emailed.. (jl, ) (Entered: 10/03/2016)

10/03/2016

165 RESPONSE in Opposition re 158 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM on Claims 4 & 6 filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (ALBAN, DAN) (Entered: 10/03/2016)

10/05/2016

166 MOTION for Leave to File a Reply Brief filed by CITY OF PHILADELPHIA, JAMES F. KENNEY, RICHARD ROSS, JR. Memorandum and Certificate of Service. (Attachments: # 1 Exhibit A)(MILLER, MICHAEL) (Entered: 10/05/2016)

11/08/2016 167 AFFIDAVIT of Service by Michael Doyle re: served Summons & Second Amended Complaint upon Sheila Woods-Skipper by Process Server on 11/8/16 (SHETH, DARPANA) (Entered: 11/08/2016)

11/08/2016

168 AFFIDAVIT of Service by Michael Doyle re: served Summons & Second Amended Complaint upon Jacqueline Allen by Process Server on 11/8/16 (SHETH, DARPANA) (Entered: 11/08/2016)

11/08/2016 169 AFFIDAVIT of Service by Michael Doyle re: served Summons & Second Amended Complaint upon Joseph Evers by Process Server on 11/8/16 (SHETH, DARPANA) (Entered: 11/08/2016)

11/08/2016

170 AFFIDAVIT of Service by Michael Doyle re: served Summons & Second Amended Complaint upon Charles Mapp by Process Server on 11/8/16 (SHETH, DARPANA) (Entered: 11/08/2016)

11/14/2016

171 NOTICE of Appearance by MICHAEL DALEY on behalf of JACQUELINE F. ALLEN, JOSEPH H. EVERS, CHARLES A. MAPP, SHELIA A. WOODS-SKIPPER with Certificate of Service(DALEY, MICHAEL) (Entered: 11/14/2016)

11/15/2016 172 NOTICE of Appearance by ANDREW J. COVAL on behalf of JACQUELINE F. ALLEN, JOSEPH H. EVERS, CHARLES A.

MAPP, SHELIA A. WOODS-SKIPPER with Certificate of Service(COVAL, ANDREW) (Entered: 11/15/2016)

11/29/2016

173 MOTION to Dismiss the Second Amended Complaint filed by JACQUELINE F. ALLEN, JOSEPH H. EVERS, CHARLES A. MAPP, SHELIA A. WOODS-SKIPPER.Brief, Certificate of Service.(DALEY, MICHAEL) (Entered: 11/29/2016)

12/12/2016

174 STIPULATION AND ORDER THAT PLAINTIFFS TIME TO FILE THEIR RESPONSE TO MOTION TO DISMISS (DOC. 173) IS EXTENDED TO 1/13/17. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 12/12/16. 12/12/16 ENTERED AND COPIES EMAILED.(rf, ) (Entered: 12/12/2016)

01/13/2017

175 RESPONSE in Opposition re 173 MOTION to Dismiss the Second Amended Complaint with Certificate of Service filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (SHETH, DARPANA) (Entered: 01/13/2017)

01/18/2017

176 MOTION to Modify Scheduling Order as to Plaintiffs' Fifth Claim for Relief filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (FILED IN ERROR BY ATTORNEY; SEE CORRECTED FILING, PAPER # 177 ). (PECCOLA, ROBERT) Modified on 1/19/2017 (fb). (Entered: 01/18/2017)

01/18/2017

177 MOTION to Modify Scheduling Order as to Plaintiffs' Fifth Claim for Relief filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Proposed Order)(PECCOLA, ROBERT) (Entered: 01/18/2017)

01/31/2017

178 ORDER THAT PLAINTIFFS SECOND MOTION TO MODIFY SCHEDULING ORDER AS TO THEIR FIFTH CLAIM FOR RELIEF IS GRANTED IN PART AND DENIED IN PART. PLAINTIFF SHALL FILE ANY MOTIONS TO COMPEL DISCOVERY BY 2/14/17; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/31/17. 1/31/17 ENTERED AND E-MAILED.(jl, ) (Entered: 01/31/2017)

02/01/2017

179 MOTION for Leave to File a Reply Brief filed by JACQUELINE F. ALLEN, JOSEPH H. EVERS, CHARLES A. MAPP, SHELIA A. WOODS-SKIPPER.Exhibits, Certificate of Service.(DALEY, MICHAEL) (Entered: 02/01/2017)

02/02/2017 180 MOTION for Leave to File a Reply Brief filed by JACQUELINE F. ALLEN, JOSEPH H. EVERS, CHARLES A. MAPP, SHELIA A.

WOODS-SKIPPER.Exhibits, Certificate of Service.(DALEY, MICHAEL) (Entered: 02/02/2017)

02/03/2017

181 Consent MOTION for Leave to File Excess Pages of Exhibits in Support of Plaintiffs' Motion to Compel Discovery Responses on Claim Five from the District Attorney Defendants filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Proposed Order)(PECCOLA, ROBERT) (Entered: 02/03/2017)

02/03/2017

182 NOTICE of Appearance by BRANDEN JAMES ALBAUGH on behalf of PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS with Certificate of Service(ALBAUGH, BRANDEN) (Entered: 02/03/2017)

02/03/2017

183 ORDER THAT A TELEPHONE CONFERENCE WILL BE HELD ON FEBRUARY 8, 2017 AT 3:00 P.M. REGARDING PLAINTIFFS' CONSENT MOTION FOR LEAVE TO FILE EXCESS PAGES 181 . DAVID RUDOVSKY, ESQUIRE SHALL PLACE THE CALL TO CHAMBERS (215-597-4073) ONCE ALL PARTICIPATING PARTIES ON ARE THE LINE, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 02/03/2017. 02/03/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 02/03/2017)

02/08/2017

184 ORDER THAT PLAINTIFFS' CONSENT MOTION FOR LEAVE TO FILE EXCESS PAGES 181 IS DENIED WITHOUT PREJUDICE. ALL DEADLINES SET FORTH IN THE COURT'S SEPTEMBER 15, 2016 ORDER ON PLAINTIFFS' MOTION TO AMEND SCHEDULING ORDER AS TO THEIR FIFTH CLAIM FOR RELIEF 154 ARE STAYED UNTIL FURTHER ORDER OF THE COURT. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 02/08/2017. 02/08/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 02/08/2017)

02/10/2017

185 ORDER THAT A HEARING TO CONSIDER DEFENDANTS' MOTION TO DISMISS 173 WILL BE HELD ON MARCH 15, 2017 AT 2:00 P.M. IN COURTROOM 15A BEFORE THE HONORABLE EDUARDO C. ROBRENO. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 02/10/2017. 02/10/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 02/10/2017)

02/14/2017

186 MOTION for Leave to File Surreply Brief in Opposition to Motion to Dismiss the Second Amended Complaint by the FJD Defendants filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(SHETH, DARPANA) (Entered: 02/14/2017)

02/23/2017 187 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 02/23/2017. 02/23/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 02/23/2017)

02/23/2017

188 ORDER THAT PLAINTIFFS' MOTION TO CERTIFY A RULE 23(B)(2) CLASS ON PLAINTIFFS' FIFTH CLAIM FOR RELIEF 118 IS GRANTED IN PART AND DENIED IN PART, ETC. THE CITY DEFEDANTS' MOTION TO SUBMIT A SURREPLY BRIEF 159 IS GRANTED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 02/23/2017. 02/23/2017 ENTERED AND COPIES EMAILED.(nds) (Entered: 02/23/2017)

02/23/2017

190 SURREPLY BRIEF by CITY OF PHILADELPHIA, JAMES F. KENNEY, RICHARD ROSS, JR. in Support of the City of Philadelphia's Opposition to Plaintiffs' Motion for Class Certification. (md) (Entered: 02/24/2017)

02/24/2017

189 ORDER THAT A STATUS AND SCHEDULING CONFERENCE REGARDING PLAINTIFFS' FIFTH CLAIM FOR RELIEF WILL BE HELD ON MARCH 15, 2017 AT 2:00 P.M. IN COURTROOM 15A BEFORE THE HONORABLE EDUARDO C. ROBRENO, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 02/24/2017. 02/24/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 02/24/2017)

03/09/2017

191 MOTION for Reconsideration re 187 Memorandum and/or Opinion, 188 Order (Memorandum and/or Opinion), filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Memo. In Support, # 2 Declaration of Robert A. Peccola, # 3 Ex 1_Peccola Declaration, # 4 Ex 2_Peccola Declaration, # 5 Ex 3_Peccola Declaration, # 6 Proposed Order)(SHETH, DARPANA) (Entered: 03/09/2017)

03/13/2017

192 STATUS REPORT AND RULE 26(F) REPORT AS TO PLAINTIFFS' FIFTH CLAIM FOR CLASS RELIEF by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Revised Joint Status Report/Rule 26(f) Court Form)(SHETH, DARPANA) (Entered: 03/13/2017)

03/13/2017

193 Declaration OF DARPANA M. SHETH IN SUPPORT OF PLAINTIFFS' POSITIONS IN JOINT STATUS AND RULE 26(F) REPORT by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Exh 1_Sheth Declaration_August 2016 Email Chain, # 2 Exh 2_Sheth Declaration_November 3, 2016 Email Chain, # 3 Exh 3_Sheth Declaration_November 28, 2016 Email Chain, # 4 Exh 4_Sheth Declaration_February 2017 Email Chain, # 5 Exh 5_Sheth

Declaration_Deposition Transcript Excerpts_James Scott Cadden, # 6 Exh 6_Sheth Declaration_Deposition Transcript Excerpts_Dorean Rooney, # 7 Exh 7_Sheth Declaration_DA Defendants' Supplemental Disclosures, # 8 Exh 8_Sheth Declaration_June 2016 Email Chain, # 9 Exh 9_Sheth Declaration_Letter from Sheth to Miller dated August 8, 2016, # 10 Exh 10_Sheth Declaration_Letter from Miller to Sheth dated August 5, 2016)(SHETH, DARPANA) (Entered: 03/13/2017)

03/15/2017

194 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO Motion Hearing held on 3/15/17 re 173 MOTION to Dismiss the Second Amended Complaint filed by CHARLES A. MAPP, JACQUELINE F. ALLEN, SHELIA A. WOODS-SKIPPER, JOSEPH H. EVERS Court Reporter: ESR. (jl, ) (Entered: 03/15/2017)

03/15/2017

195 ORDER THAT THE CITY DEFENDANTS AND D.A. DEFENDANTS SHALL FILE ANY RESPONSES TO PLAINTIFFS' MOTION FOR PARTIAL RECONSIDERATION 191 BY MARCH 23, 2017. PLAINTIFFS SHALL FILE ANY MOTIONS TO COMPEL ADDITIONAL DISCOVERY REGARDING THEIR FIFTH CLAIM FOR RELIEF BY APRIL 7, 2017, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 03/15/2017. 03/15/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 03/15/2017)

03/16/2017 196 NOTICE by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH re 194 Motion Hearing, of Supplemental Authority (SHETH, DARPANA) (Entered: 03/16/2017)

03/20/2017

197 Supplemental Brief by JACQUELINE F. ALLEN, JOSEPH H. EVERS, CHARLES A. MAPP, SHELIA A. WOODS-SKIPPER re 194 Motion Hearing, (DALEY, MICHAEL) Modified on 3/21/2017 (fb). (Entered: 03/20/2017)

03/23/2017

198 RESPONSE in Opposition re 191 MOTION for Reconsideration re 187 Memorandum and/or Opinion, 188 Order (Memorandum and/or Opinion), filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE. (WECK, DOUGLAS) (Entered: 03/23/2017)

03/28/2017

199 MOTION for Leave to File Reply Brief in support of Plaintiffs' Motion for Partial Reconsideration filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Exhibit A - Proposed Reply Brief, # 2 Proposed Order)(SHETH, DARPANA) (Entered: 03/28/2017)

03/29/2017

200 TRANSCRIPT of MOTION HEARING held on 3/15/17, before Judge EDUARDO C. ROBRENO. Court Reporter/Transcriber ACCESS TRANSCRIPTS, LLC. Transcript may be viewed at the court public

terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 4/19/2017. Redacted Transcript Deadline set for 5/1/2017. Release of Transcript Restriction set for 6/27/2017. (jaa, ) (Entered: 03/29/2017)

03/29/2017 201 Notice of Filing of Official Transcript with Certificate of Service re 200 Transcript - PDF, 3/29/17 Entered and Copies Emailed and Mailed.. (jaa, ) (Entered: 03/29/2017)

03/30/2017 202 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 03/30/2017. 03/30/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 03/30/2017)

03/30/2017

203 ORDER THAT THE CITY DEFENDANTS' MOTION TO DISMISS 158 IS DENIED. THE CITY DEFENDANTS' MOTION FOR LEAVE 166 IS GRANTED. THE FJD DEFENDANTS' MOTION TO DISMISS 173 IS DENIED. THE FJD DEFENDANTS' MOTION FOR LEAVE 180 IS GRANTED. THE FJD DEFENDANTS' MOTION FOR LEAVE TO FILE 179 IS DENIED AS MOOT. PLAINTIFFS' MOTION FOR LEAVE TO FILE A SURREPLY BRIEF 186 IS GRANTED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 03/30/2017. 03/30/2017 ENTERED AND COPIES EMAILED.(nds) (Entered: 03/30/2017)

03/31/2017 204 ANSWER to 157 Amended Complaint, by CITY OF PHILADELPHIA, JAMES F. KENNEY, RICHARD ROSS, JR.(MILLER, MICHAEL) (Entered: 03/31/2017)

04/05/2017

205 ORDER THAT PLAINTIFF'S SHALL FILE ANY MOTIONS TO COMPEL ADDITIONAL DICOVERY REGARDING PLAINTIFF'S FIFTH CLAIM FOR RELIEF BY APRIL 21, 2017, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 04/05/2017. 04/05/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 04/05/2017)

04/12/2017

206 MOTION for Extension of Time to File Answer to Second Amended Complaint filed by JACQUELINE F. ALLEN, JOSEPH H. EVERS, CHARLES A. MAPP, SHELIA A. WOODS-SKIPPER.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(COVAL, ANDREW) (Entered: 04/12/2017)

04/13/2017

207 ORDER THAT DEFENDANTS, WOOD-SKIPPER, ALLEN, EVER AND MAPP'S UNOPPOSED MOTION FOR AN ENLARGEMENT OF TIME TO ANSWER TO THE SECOND AMENDED COMPLAINT. THE DEFENDANTS HAVE AN EXTENSION UNTIL APRIL 27, 2017 TO ANSWER PLAINTIFF'S SECOND

AMENDED COMPLAINT. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 04/13/2017. 04/13/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 04/13/2017)

04/13/2017

208 MOTION for Leave to File Excess Pages of Exhibits over the 50-Page Limit in support of Plaintiffs' Motion to Compel Discovery Responses on Count Five from the City Defendants filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Proposed Order)(SHETH, DARPANA) (Entered: 04/13/2017)

04/13/2017

209 MOTION for Leave to File Excess Pages of Exhibits over the 50-Page Limit in support of Plaintiffs' Motion to Compel Discovery Responses on Count Five from the DA Defendants filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Proposed Order)(SHETH, DARPANA) (Entered: 04/13/2017)

04/17/2017

210 ORDER THAT PLAINTIFFS' UNCONTESTED MOTION FOR LEAVE TO FILE IN EXCESS 208 IS GRANTED. EXHIBITS NOT TO EXCEED 120 PAGES. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 04/17/2017. 04/17/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 04/17/2017)

04/17/2017

211 ORDER THAT PLAINTIFFS' UNCONTESTED MOTION FOR LEAVE TO FILE IN EXCESS 209 IS GRANTED. EXHIBITS NOT TO EXCEED 120 PAGES. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 04/17/2017. 04/17/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 04/17/2017)

04/21/2017

212 MOTION to Compel Discovery on Count Five from DA Defendants filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Memorandum in support of Plaintiffs' Motion, # 2 Declaration of Robert A. Peccola, # 3 Ex. 1, # 4 Ex. 2, # 5 Ex. 3, # 6 Ex. 4, # 7 Ex. 5, # 8 Ex. 6, # 9 Ex. 7, # 10 Ex. 8, # 11 Ex. 9, # 12 Ex. 10, # 13 Ex. 11, # 14 Ex. 12, # 15 Ex. 13, # 16 Ex. 14, # 17 Ex. 15, # 18 Ex. 16, # 19 Ex. 17, # 20 Ex. 18, # 21 Ex. 19, # 22 Ex. 20, # 23 Ex. 21, # 24 Proposed Order)(PECCOLA, ROBERT) (Entered: 04/21/2017)

04/21/2017

213 MOTION to Compel Discovery Responses on Count Five from City Defendants filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Memorandum in support of Plaintiffs' Motion, # 2 Declaration of Robert A. Peccola, # 3 Ex. 1, # 4 Ex. 2, # 5 Ex. 3, # 6 Ex. 4, # 7 Ex. 5, # 8 Ex. 6, # 9 Ex. 7, # 10 Ex. 8, # 11 Ex. 9, # 12 Ex.

10, # 13 Ex. 11, # 14 Ex. 12, # 15 Ex. 13, # 16 Proposed Order)(PECCOLA, ROBERT) (Entered: 04/21/2017)

04/27/2017

214 Defendants ANSWER to 157 Amended Complaint, by JACQUELINE F. ALLEN, JOSEPH H. EVERS, CHARLES A. MAPP, SHELIA A. WOODS-SKIPPER.(DALEY, MICHAEL) (Entered: 04/27/2017)

05/02/2017

215 Consent MOTION for Extension of Time to File Response/Reply as to 213 MOTION to Compel Discovery Responses on Count Five from City Defendants, 212 MOTION to Compel Discovery on Count Five from DA Defendants filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS.Certificate of Service.(HUGHES, BRYAN) (Entered: 05/02/2017)

05/04/2017

216 ORDER THAT THE CONSENT MOTION FOR AN EXTENSION OF TIME TO FILE A RESPONSE TO PLAINTIFFS' MOTIONS TO COMPEL 212 213 IS HEREBY GRANTED AND A RESPONSE SHALL BE FILED BY MAY 19, 2017. ***NO FURTHER EXTENSIONS FOR EITHER PLAINTIFFS OR DEFENDANTS CONCERNING THE PLAINTIFFS' MOTIONS TO COMPEL DISCOVERY WILL BE GRANTED***. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 05/04/2017. 05/04/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 05/04/2017)

05/16/2017

217 RESPONSE in Opposition re 213 MOTION to Compel Discovery Responses on Count Five from City Defendants filed by CITY OF PHILADELPHIA, JAMES F. KENNEY, RICHARD ROSS, JR. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(MILLER, MICHAEL) (Entered: 05/16/2017)

05/19/2017

218 RESPONSE in Opposition re 212 MOTION to Compel Discovery on Count Five from DA Defendants filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS. (Attachments: # 1 Declaration Exhibit A, # 2 Declaration Exhibit B)(HUGHES, BRYAN) (Entered: 05/19/2017)

05/30/2017

219 ORDER THAT A STATUS AND SCHEDULING CONFERENCE WILL BE HELD ON JUNE 2, 2017 AT 10:00 A.M. IN COURTROOM 15A BEFORE THE HONORABLE EDUARDO C. ROBRENO, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 05/30/2017. 05/30/2017 ENTERED AND COPIES EMAILED.(nds) (Entered: 05/30/2017)

06/01/2017

220 ORDER THAT THE STATUS AND SCHEDULING CONFERENCE PREVIOUSLY SCHEDULED FOR JUNE 2, 2017 AT 10:00 A.M. IS CONTINUED UNTIL FURTHER ORDER OF THE COURT. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/1/17.

6/1/17 ENTERED AND COPIES E-MAILED.(rv) (Entered: 06/01/2017)

06/23/2017

221 REPLY Memorandum in Support re 213 MOTION to Compel Discovery Responses on Count Five from City Defendants, 212 MOTION to Compel Discovery on Count Five from DA Defendants filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Declaration of Robert A. Peccola, # 2 Ex 1_Peccola Declaration, # 3 Ex 2_Peccola Declaration)(PECCOLA, ROBERT) Modified on 6/26/2017 (fb). (Entered: 06/23/2017)

06/26/2017

222 NOTICE by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH of Filing Corrected Consolidated Reply Memo. In Support of Plaintiffs' Motion to Compel Discovery Responses on Count Five from the District Attorney Defendants and City Defendants (PECCOLA, ROBERT) (Entered: 06/26/2017)

06/26/2017

223 CORRECTED CONSOLIDATED REPLY MEMORANDUM in Support re 213 MOTION to Compel Discovery Responses on Count Five from City Defendants, 212 MOTION to Compel Discovery on Count Five from DA Defendants filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (PECCOLA, ROBERT) Modified on 6/27/2017 (fb). (Entered: 06/26/2017)

06/29/2017

224 ORDER THAT A STATUS AND SCHEDULING CONFERENCE WILL BE HELD ON AUGUST 18, 2017 AT 10:00 A.M. BEFORE THE HONORABLE EDUARDO C. ROBRENO, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 06/29/2017. 06/29/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 06/29/2017)

07/21/2017

225 MOTION for a Permanent Injunction filed by CITY OF PHILADELPHIA, JAMES F. KENNEY, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, RICHARD ROSS, JR. Memorandum and Certificate of Service.(MILLER, MICHAEL) (Entered: 07/21/2017)

08/04/2017

226 RESPONSE to Motion re 225 MOTION for a Permanent Injunction PLAINTIFFS RESPONSE TO AND REQUEST TO HOLD IN ABEYANCE DEFENDANTS MOTION FOR A PERMANENT INJUNCTION filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (SHETH, DARPANA) (Entered: 08/04/2017)

08/15/2017 227 STATUS REPORT FOR COUNTS THREE, FOUR, SIX, AND SEVEN OF PLAINTIFFS' SECOND AMENDED COMPLAINT by NASSIR

GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Joint Status Report_Court Form)(SHETH, DARPANA) (Entered: 08/15/2017)

08/18/2017

228 SCHEDULING ORDER: IT IS HEREBY ORDERED THAT THE SCHEDULE OUTLINED HEREIN WILL APPLY TO PLAINTIFFS' THIRD, FOURTH, SIXTH AND SEVENTH CLAIMS FOR RELIEF, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 08/18/2017. 08/18/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 08/18/2017)

08/18/2017

229 ORDER THAT THE PARTIES SHALL SUBMIT, THRUOGH PLAINTIFFS' COUNSEL, A LIST OF PROPOSED COURTAPPOINTED FACILITATORS TO THE COURT BY SEPTEMBER 7, 2017, ETC. A STATUS AND SCHEDULING CONFERENCE WILL BE HELD ON SEPTEMBER 28, 2017 AT 4:30 P.M. IN COURTROOM 15A BEFORE THE HONORABLE EDUARDO C. ROBRENO. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 08/18/2017. 08/18/2017 ENTERED AND COPIES EMAILED.(nds) (Entered: 08/18/2017)

08/18/2017

**HEARING SET*** STATUS AND SCHEDULING CONFERENCE IS SET FOR 9/28/2017 AT 4:30 PM BEFORE HONORABLE EDUARDO C. ROBRENO. (nds) (Entered: 08/18/2017)

08/18/2017

230 MOTION for Leave to File a Reply Brief filed by CITY OF PHILADELPHIA, JAMES F. KENNEY, RICHARD ROSS, JR. Certificate of Service. (Attachments: # 1 Exhibit A)(MILLER, MICHAEL) (Entered: 08/18/2017)

09/07/2017

231 Letter by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH Regarding Proposed CourtAppointed Facilitators (ALBAN, DAN) Modified on 9/8/2017 (fb). (Entered: 09/07/2017)

11/27/2017

232 ORDER THAT THIS MATTER SHALL BE PLACED IN SUSPENSE PENDING THE PARTIES' SETTLEMENT NEGOTIATIONS AND THE APPOINTMENT OF A MEDIATOR. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 11/27/2017. 11/27/2017 ENTERED AND COPIES E-MAILED.(nds) (Entered: 11/27/2017)

01/09/2018 233 ORDER THAT A TELEPHONE CONFERENCE WILL BE HELD ON JANUARY 12, 2018 AT 2:00 P.M., ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 01/09/2018.

01/09/2018 ENTERED AND COPIES E-MAILED.(nds) (Entered: 01/09/2018)

01/12/2018

234 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO TELEPHONE Pretrial Conference held on 1/12/18. Court Reporter: ESR. (jl, ) (Entered: 01/12/2018)

02/02/2018

235 TRANSCRIPT of held on 1/12/18, before Judge ROBRENO. Court Reporter/Transcriber ESR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 2/23/2018. Redacted Transcript Deadline set for 3/5/2018. Release of Transcript Restriction set for 5/3/2018. TELEPHONE CONFERENCE (TK TRANSCRIPTION SERVICE)(jl, ) (Entered: 02/02/2018)

02/02/2018 236 Notice of Filing of Official Transcript with Certificate of Service re 235 Transcript - PDF, 2/2/18 Entered and Copies Emailed (jl, ) (Entered: 02/02/2018)

03/02/2018

237 NOTICE of Withdrawal of Appearance of Branden J. Albaugh filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS.Certificate of Service.(ALBAUGH, BRANDEN) Modified on 3/5/2018 (lisad, ). (Entered: 03/02/2018)

04/03/2018

238 ORDER THAT A TELEPHONE CONFERENCE SHALL BE HELD ON APRIL 18, 2018 AT 2:00 P.M., ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 04/03/2018. 04/03/2018 ENTERED AND COPIES E-MAILED.(nds) (Entered: 04/03/2018)

04/04/2018

239 NOTICE of Appearance by PETER CARR on behalf of PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS with Certificate of Service(CARR, PETER) (Entered: 04/04/2018)

04/04/2018

240 NOTICE of Withdrawal of Appearance by BRYAN C. HUGHES on behalf of PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS(HUGHES, BRYAN) (Entered: 04/04/2018)

04/12/2018

241 ORDER THAT THE TELEPHONE CONFERENCE PREVIOUSLY SCHEDULED FOR APRIL 18, 2018 IS HEREBY RESCHEDULED AND WILL NOW BE HELD ON MAY 1, 2018 AT 4:00 P.M., ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 04/12/2018. 04/12/2018 ENTERED AND COPIES E-MAILED.(nds) (Entered: 04/12/2018)

05/01/2018 242 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO TELEPHONE Status Conference held on 5/1/18. (jl, ) (Entered: 05/02/2018)

05/02/2018

243 ORDER THAT MARK A. ARONCHICK, ESQUIRE IS CONDITIONALLY APPOINTED AS A COURT-ANNEXED FACILITATOR IN THIS CASE, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 05/02/2018. 05/02/2018 ENTERED AND COPIES E-MAILED TO ALL COUNSEL AND MR. ARONCHICK.(nds) (Entered: 05/02/2018)

05/10/2018

244 ORDER THAT PLAINTIFFS' COUNSEL SHALL SUBMIT A PARTIAL REQUEST FOR FEES, ACCOUNTING FOR ALL FEES INCURRED IN THIS CASE THROUGH APRIL 30, 2018 BY JUNE 11, 2018. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 05/10/2018. 05/10/2018 ENTERED AND COPIES E-MAILED.(nds) (Entered: 05/10/2018)

05/22/2018

245 ORDER THAT MARK A. ARONCHICK, ESQUIRE IS APPOINTED AS A COURT ANNEXED FACILITATOR IN THIS CASE EFFECTIVE IMMEDIATELY AND AS OUTLINED HEREIN, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 05/22/2018. 05/22/2018 ENTERED AND COPIES E-MAILED. (nds) (Entered: 05/22/2018)

05/24/2018

246 TRANSCRIPT of held on 5/1/18, before Judge ROBRENO. Court Reporter/Transcriber 5/1/18. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 6/14/2018. Redacted Transcript Deadline set for 6/25/2018. Release of Transcript Restriction set for 8/22/2018. HEARING(jl, ) (Entered: 05/24/2018)

05/24/2018

247 Notice of Filing of Official Transcript with Certificate of Service re 246 Transcript - PDF, 5/24/18 Entered and Copies Emailed. (jl, ) (Entered: 05/24/2018)

06/12/2018

248 ORDER THAT PLAINTIFFS' TIME TO SUBMIT A PARTIAL REQUEST FOR FEES, ETC. IN THIS CASE IS EXTENDED TO SEPTEMBER 10, 2018. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 06/11/2018. 06/12/2018 ENTERED AND COPIES EMAILED.(nds) (Entered: 06/12/2018)

07/26/2018

249 ORDER THAT A STATUS AND SCHEDULING CONFERENCE WILL BE HELD ON AUGUST 7, 2018 AT 11:00 A.M. IN CHAMBERS - ROOM 15614 BEFORE THE HONORABLE EDUARDO C. ROBRENO. SIGNED BY HONORABLE EDUARDO

C. ROBRENO ON 07/26/2018. 07/26/2018 ENTERED AND COPIES E-MAILED.(nds) (Entered: 07/26/2018)

08/07/2018

250 ORDER THAT THE COURT'S APPOINTMENT OF MARK A. ARONCHICK, ESQ AS A COURT ANNEXED FACILITATOR IS EXTENDED UNTIL 11/9/18; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/7/18. 8/7/18 ENTERED AND COPIES MAILED TO M.A. AND E-MAILED.(jl, ) (Entered: 08/07/2018)

09/18/2018

251 Consent MOTION for Leave to File Third Amended Complaint filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Memorandum, Certificate of Service. (Attachments: # 1 Exh A_Proposed Third Amended Complaint, # 2 Exh B_Redline Proposed Third Amended Complaint and Second Amended Complaint, # 3 Proposed Order)(SHETH, DARPANA) (Entered: 09/18/2018)

09/18/2018

252 Consent MOTION and Memorandum in Support of Preliminary Approval of Class Certification and Consent Decree on the Courtroom Claims filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Memorandum. (Attachments: # 1 Exhibit A - Executed Consent Decree with Attachments, # 2 Proposed Order)(SHETH, DARPANA) (Entered: 09/18/2018)

09/18/2018

253 Consent MOTION and Memorandum in Support of Preliminary Approval of Class Certification and Consent Decree on Plaintiffs' Fifth and Sixth Claims for Relief filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Memorandum, Certificate of Service. (Attachments: # 1 Exhibit A_Executed Consent Decree, # 2 Exhibit B_Proposed Notice of Settlement of Class Action, # 3 Exhibit C_Claim Form, # 4 Exhibit D_Objections and Opt-Out Form, # 5 Proposed Order)(SHETH, DARPANA) (Entered: 09/18/2018)

09/20/2018

254 THIRD SCHEUDLING ORDER: THIRD AMENDED COMPLAINT SHALL BE FILED BY SEPTEMBER 18, 2018. MOTIONS FOR PRELMINARY APPROVAL OF CLASS CERTIFICATION AND CONSENT DECREES SHALL BE FILED BY SEPTEMBER 18, 2018. PLAINTIFFS' ATTORNEYS' FEES SHALL BE FILED BY SEPTEMBER 25, 2018. DEFENDANTS' CAFA NOTICE SHALL BE SERVED BY SEPTEMBER 28, 2018. THE HEARING ON MOTIONS FOR PRELIMINARY APPROVAL OF CLASS CERTIFICATION 252 253 SHALL BE HELD ON OCTOBER 16, 2018 AT 10:00 A.M. IN COURTROOM 15A BEFORE THE

HONORABLE EDUARDO C. ROBRENO, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 09/20/2018. 09/20/2018 ENTERED AND COPIES E-MAILED.(nds) (Entered: 09/20/2018)

09/25/2018

255 Consent MOTION for Attorney Fees filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Memorandum. (Attachments: # 1 Ex. 1 - Declaration of Darpana Sheth, # 2 Sheth Decl. Ex. A, # 3 Sheth Decl. Ex. B, # 4 Sheth Decl. Ex. C, # 5 Sheth Decl. Ex. D, # 6 Sheth Decl. Ex. E, # 7 Sheth Decl. Ex. F, # 8 Sheth Decl. Ex. G, # 9 Ex. 2 - Declaration of David Rudovsky, # 10 Rudovsky Decl. Ex. A, # 11 Proposed Order)(SHETH, DARPANA) (Entered: 09/25/2018)

09/26/2018

256 EXHIBITS by PLAINTIFFS PETITION FOR ATTORNEY FEES. (FILED UNDER SEAL). (jl, ) (Additional attachment(s) added on 9/27/2018: # 1 sealed document, # 2 sealed document, # 3 sealed document, # 4 sealed document, # 5 sealed document, # 6 sealed document, # 7 sealed document) (tjd, ). (Entered: 09/26/2018)

10/15/2018

257 NOTICE by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH OF FILING AMENDED EXHIBITS IN SUPPORT OF PLAINTIFFS' UNCONTESTED MOTION AND MEMORANDUM IN SUPPORT OF PRELIMINARY APPROVAL OF CLASS CERTIFICATION AND CONSENT DECREE ON PLAINTIFFS' FIFTH AND SIXTH CLAIMS FOR RELIEF (Attachments: # 1 Exh B_Amended Class Notice, # 2 Exh C_Amended Claim Form, # 3 Exh D_Amended Notice of Objection and Opt-Out Form)(SHETH, DARPANA) (Entered: 10/15/2018)

10/16/2018

258 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO Motion Hearing held on 10/16/18 re HEARING ON THE MOTIONS FOR PRELIMINARY APPROVAL OF CLASS CERTIFICATION AND CONSENT DECREE HELD. Court Reporter: ESR. (jl, ) (Entered: 10/16/2018)

11/01/2018

259 TRANSCRIPT of held on 10/16/18, before Judge ROBRENO. Court Reporter/Transcriber ESR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 11/23/2018. Redacted Transcript Deadline set for 12/3/2018. Release of Transcript Restriction set for 1/30/2019. MOTION HEARING. (TK TRANSCRIPTION SERVICE)(jl, ) (Entered: 11/01/2018)

11/01/2018 260 Notice of Filing of Official Transcript with Certificate of Service re 259 Transcript - PDF, 11/1/18 Entered and Copies Emailed. (jl, ) (Entered: 11/01/2018)

02/12/2019

261 NOTICE by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH OF FILING REVISED CLASS NOTICE IN SUPPORT OF PRELIMINARY APPROVAL OF CLASS CERTIFICATION AND CONSENT DECREE ON PLAINTIFFS' FIFTH AND SIXTH CLAIMS FOR RELIEF (Attachments: # 1 Exh 1_Revised Class Notice Documents, # 2 Exh 2_Spanish Translation_Revised Class Notice Documents)(SHETH, DARPANA) (Entered: 02/12/2019)

02/19/2019

262 ORDER THAT A HEARING TO DISCUSS THE PARTIES' COMPLIANCE WITH THE COURT'S INSTRUCTION AT THE OCTOBER 16, 2018 PRELIMINARY SETTLEMENT APPROVAL HEARING WILL BE HELD ON MARCH 18, 2019 AT 10:00 A.M. IN COURTROOM 15A BEFORE THE HONORABLE EDUARDO C. ROBRENO, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 02/19/2019. 02/19/2019 ENTERED AND COPIES EMAILED.(nds) (Entered: 02/19/2019)

03/14/2019

263 Letter provided jointly by Plaintiffs, District Attorney Defendants, and City Defendants by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (SHETH, DARPANA) Modified on 3/15/2019 (fb). (Entered: 03/14/2019)

03/18/2019

264 ORDER THAT NO LATER THAN MARCH 26, 2019 THE PARTIES SHALL SUBMIT A REVISED NOTICE AND CONSENT DECREE REGADING THE FIFTH AND SIXTH CLAIMS AS OUTLINED HEREIN, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 03/18/2019. 03/18/2019 ENTERED AND COPIES EMAILED.(nds) (Entered: 03/18/2019)

03/19/2019

265 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO COMPLIANCE HEARING held on 3/18/19. Court Reporter: ESR. (jl, ) (Entered: 03/19/2019)

03/25/2019

266 TRANSCRIPT of HEARING held on 3/18/19, before Judge ROBRENO. Court Reporter/Transcriber ESR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 4/15/2019. Redacted Transcript Deadline set for 4/25/2019. Release of Transcript Restriction set for 6/24/2019. HEARING(jl, ) (Entered: 03/25/2019)

03/25/2019 267 Notice of Filing of Official Transcript with Certificate of Service re 266 Transcript - PDF, 3/25/19 Entered and Copies Emailed. (jl, ) (Entered: 03/25/2019)

03/26/2019

268 NOTICE by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH of filing Revised Class Notice and Revised Consent Decree on Plaintiffs' Fifth and Sixth Claims for Relief (Attachments: # 1 Ex. 1 - Revised Class Notice, # 2 Ex. 2 - Redlined Excerpt from Revised Class Notice, # 3 Ex. 3 - Revised Consent Decree, # 4 Ex. 4 - Redlined Excerpt from Revised Consent Decree)(SHETH, DARPANA) (Entered: 03/26/2019)

04/02/2019

269 NOTICE by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH of filing Executed Revised Consent Decree on Plaintiffs' Fifth and Sixth Claims for Relief (Attachments: # 1 Ex. 1 - Fully Executed Revised Consent Decree)(SHETH, DARPANA) (Entered: 04/02/2019)

04/02/2019

270 Letter provided jointly by Plaintiffs, District Attorney Defendants, and City Defendants on the Necessity of a Cy Pres Provision by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (SHETH, DARPANA) Modified on 4/3/2019 (fb). (Entered: 04/02/2019)

04/12/2019

271 NOTICE by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH of filing Revised Class Notice and Revised Consent Decree on Plaintiffs' Fifth and Sixth Claims for Relief (Attachments: # 1 Ex. 1 - Revised Class Notice, # 2 Ex. 2 - Revised and Executed Consent Decree)(SHETH, DARPANA) (Entered: 04/12/2019)

04/30/2019

272 ORDER THAT PLAINTIFFS' UNCONTESTED MOTIONS 252 253 ARE HEREBY GRANTED AS OUTLINED HEREIN. FURTHER, THE MOTION FOR FINAL APPROVAL OF THE CONSENT DECREES, ETC. SHALL BE FILED BY OCTOBER 11, 2019. THE COURT WILL HOLD A FINAL FAIRNESS HEARING ON NOVEMBER 1, 2019 AT 9:00 A.M. IN COURTROOM 15A BEFORE THE HONORABLE EDUARDO C. ROBRENO. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 04/30/2019. 04/30/2019 ENTERED AND COPIES E-MAILED.(nds) (Entered: 04/30/2019)

06/17/2019 273 NOTICE by GARY KIMMELMAN OF OBJECTION (jl, ) (Entered: 06/18/2019)

06/27/2019 274 NOTICE by CHARLES WORRELL OF OBJECTION (jl, ) (Entered: 06/28/2019)

07/22/2019 275 NOTICE BY GREGORY GILES(jl, ) (Entered: 07/23/2019)

08/19/2019 276 NOTICE by MARGARET HELEN BIGELOW OF OBJECTION (jl, ) (Entered: 08/20/2019)

08/21/2019

277 Consent MOTION To Extend the Claims Period and Ensuing Deadlines Pertaining to Final Approval of the Consent Decrees filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH..(SHETH, DARPANA) (Entered: 08/21/2019)

08/21/2019 278 NOTICE BY LEEZA ENRIQUEZ OF OBJECTION(jl, ) (Entered: 08/21/2019)

08/23/2019

279 ORDER THAT RESTITUTIONARY CLASS MEMBERS SHALL SUBMIT THEIR CLAIM FORMS TO THE CLAIMS ADMINISTRATOR BY 12/6/2019, ETC. MOTION FOR FINAL APPROVAL OF THE CONSENT DECREES & ANY PAPERS THE PARTIES WISH TO SUBMIT IN SUPPORT OF FINAL APPROVAL OF THE CONSENT DECREES SHALL BE FILED BY 2/28/2020. THE COURT WILL HOLD A FINAL FAIRNESS HEARING ON 4/1/2020 AT 10:00 A.M., IN COURTROOM 15A, U.S. COURTHOUSE, 601 MARKET STREET, PHILA., PA, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/23/19. 8/26/19 ENTERED AND COPIES MAILED AND E-MAILED.(kw, ) (Entered: 08/26/2019)

08/26/2019 280 NOTICE OF OBJECTION, ENVELOPE ATTACHED by MATEO JIMENEZ. (rf, ) (Entered: 08/27/2019)

08/28/2019 281 NOTICE by LUTFIYYAH AL-AMIN OF OBJECTION (jl, ) (Entered: 08/29/2019)

09/03/2019 282 Letter from DARIEN HOUSER IN APPLICATION NOTICE OF SUPPORT FOR HIS OBJECTIONS, CERTIFICATE OF SERVICE. (jl, ) (Entered: 09/04/2019)

09/09/2019 283 NOTICE by LUTFIYYAH AL-AMIN OF OBJECTION (jl, ) (Entered: 09/09/2019)

09/11/2019

284 NOTICE of Appearance by CATHERINE KIEFER on behalf of PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS with Certificate of Service(KIEFER, CATHERINE) (Entered: 09/11/2019)

12/09/2019 285 NOTICE by LUIS A OYOLE OF OBJECTION (jl, ) (Entered: 12/09/2019)

12/11/2019 286 NOTICE by MIN. ANTHONY TONY MCNEIL SR., UNIVERSAL CO-OP MEMBERSHIP, INC. OF OBJECTION (NO ENVELOPE ATTACHED) (jl, ) (Entered: 12/11/2019)

12/12/2019 287 Original Record together with certified copy of docket entries received from Court of Common Pleas of Philadelphia County. (nd, ) (Entered: 12/13/2019)

12/17/2019

288 NOTICE of Withdrawal of Appearance by CATHERINE KIEFER on behalf of PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS(KIEFER, CATHERINE) (Entered: 12/17/2019)

12/18/2019 289 NOTICE of Appearance by MARK MAGUIRE on behalf of CITY OF PHILADELPHIA, JAMES F. KENNEY with Certificate of Service(MAGUIRE, MARK) (Entered: 12/18/2019)

12/18/2019

290 NOTICE of Withdrawal of Appearance by MICHAEL R. MILLER on behalf of CITY OF PHILADELPHIA, JAMES F. KENNEY(MILLER, MICHAEL) (Entered: 12/18/2019)

12/19/2019

291 ORDER THE MOTION FOR ATTORNEY'S FESS (ECF #255) IS DENIED WITHOUT PREJUDICE AND TO BE REFILED BY MARCH 2, 2020, ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 12/19/19.12/19/19 ENTERED AND COPIES EMAILED.(rv) (Entered: 12/19/2019)

12/23/2019

292 ORDER THAT THE DOCUMENT RECEIVED ON DECEMBER 18, 2019 (ATTACHED HERETO) IS HEREBY FILED OF RECORD. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 12/20/2019. 12/23/2019 ENTERED AND COPIES E-MAILED.(nds) (Entered: 12/23/2019)

12/23/2019 293 NOTICE of Appearance by MARK MAGUIRE on behalf of CITY OF PHILADELPHIA, JAMES F. KENNEY with Certificate of Service(MAGUIRE, MARK) (Entered: 12/23/2019)

12/23/2019

294 NOTICE of Appearance by NANCY WINKELMAN on behalf of PHILADELPHIA DISTRICT ATTORNEY'S OFFICE with Certificate of Service(WINKELMAN, NANCY) (Entered: 12/23/2019)

12/31/2019 295 NOTICE OF ERROR by MIN. ANTHONY TONY MCNEIL SR., UNIVERSAL CO-OP MEMBERSHIP, INC. re 286 Notice (Other) (afm, ) (Entered: 01/02/2020)

01/08/2020 296 NOTICE by KEVIN BETHA (jl, ) (Entered: 01/08/2020)

01/09/2020 297 NOTICE of Withdrawal of Appearance by PETER CARR on behalf of PHILADELPHIA DISTRICT ATTORNEY'S OFFICE(CARR, PETER) (Entered: 01/09/2020)

01/09/2020 298 NOTICE of Withdrawal of Appearance by DOUGLAS WECK on behalf of PHILADELPHIA DISTRICT ATTORNEY'S OFFICE(WECK, DOUGLAS) (Entered: 01/09/2020)

01/13/2020

299 ORDER THAT THE DOCUMENT ATTACHED HERETO RECEIVED BY THE COURT ON JANUARY 3, 2020 IS HEREBY FILED OF RECORD. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 01/13/20. 01/13/20 ENTERED AND COPIES EMAILED.(nds) (Entered: 01/13/2020)

01/21/2020

300 NOTICE of Appearance by SIMRAN DHILLON on behalf of PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, SETH R. WILLIAMS (DHILLON, SIMRAN) (Entered: 01/21/2020)

01/23/2020 301 CERTIFICATE OF SERVICE by UNIVERSAL CO-OP MEMBERSHIP, INC. RE:EXHIBITS; ETC. (jl, ) (Entered: 01/23/2020)

02/04/2020

302 NOTICE of Appearance by BENJAMIN T. JACKAL on behalf of PHILADELPHIA DISTRICT ATTORNEY'S OFFICE with Certificate of Service(JACKAL, BENJAMIN) (Entered: 02/04/2020)

02/07/2020 303 Letter dated FROM UNIVERSAL CO-OP; ANTHONY MCNIEL TO JUDGE ROBRENO RE: CERTAIN STATEMENTS; ETC. (jl, ) (Entered: 02/10/2020)

02/13/2020 304 REQUEST by MIN. ANTHONY TONY MCNEIL SR. TO ADD PARTIES (jl, ) (Entered: 02/14/2020)

02/13/2020 305 REQUEST by MIN. ANTHONY TONY MCNEIL SR. TO ADD PARTIES, PROOF OF SERVICE. (jl, ) (Entered: 02/14/2020)

02/13/2020

306 REQUEST by MIN. ANTHONY TONY MCNEIL SR. TO ADD ADDITIONAL PARTIES, CERTIFICATE OF SERVICE. (jl, ) (Entered: 02/14/2020)

02/19/2020

307 Consent MOTION for Extension of Time to File Documents Pertaining to Final Approval of the Consent Decrees filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE.Certificate of Service.(DHILLON, SIMRAN) (Entered: 02/19/2020)

02/21/2020 308 Letter dated 2/21/20 by MIN. ANTHONY TONY MCNEIL SR. TO JUDGE ROBRENO RE: CERTAIN STATEMENTS; ETC. (jl, ) (Entered: 02/21/2020)

02/22/2020 309 NOTICE of Appearance by ANNE B. TAYLOR on behalf of CITY OF PHILADELPHIA with Certificate of Service(TAYLOR, ANNE) (Entered: 02/22/2020)

02/26/2020

310 Letter dated 2/26/20 by MIN. ANTHONY TONY MCNEIL SR. TO JUDGE ROBRENO RE: CERTAIN STATEMENTS; ETC. (jl, ) (Entered: 02/26/2020)

02/27/2020

311 ORDER THAT THE CONSENT MOTION TO EXTEND DEADLINES PERTAINING TO FINAL APPROVAL OF THE CONSENT DECRESS IS GRANTED. THE MOTION FOR FINAL APPROVAL OF THE CONSENT DECRESS BY 4/30/20. THE COURT WILL HOLD A FINAL FAIRNESS HEARING ON 5/8/20 AT 10:00 A.M.; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 2/27/20. 2/27/20 ENTERED AND MAILED TO PRO SE AND E-MAILED.(jl, ) (Entered: 02/27/2020)

02/27/2020

Set/Reset Scheduling Order Deadlines: MOTIONS DUE BY 4/30/2020. (jl, ) (Entered: 02/28/2020)

03/02/2020

312 Consent MOTION for Attorney Fees filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Memorandum. (Attachments: # 1 Memorandum of Law in Support of Plaintiffs' Unopposed Motion for Attorneys' Fees, # 2 Ex. 1_Declaration of Darpana Sheth, # 3 Sheth Decl._Ex. A, # 4 Sheth Decl._Ex. B, # 5 Sheth Decl._Ex. C, # 6 Sheth Decl._Ex. D, # 7 Sheth Decl._Ex. E, # 8 Sheth Decl._Ex. F, # 9 Sheth Decl._Ex. G, # 10 Ex. 2_Declaration of David Rudovsky, # 11 Rudovsky Decl._Ex. A, # 12 Proposed Order)(SHETH, DARPANA) (Entered: 03/02/2020)

03/03/2020

313 EXHIBITS TO THE DECLARATION OF TIME RECORDS. (FILED UNDER SEAL). (jl, ) (Additional attachment(s) added on 3/3/2020: # 1 Exhibit B (D. Sheth), # 2 Exhibit C (D. Sheth), # 3 Exhibit D (D. Sheth), # 4 Exhibit E (D. Sheth), # 5 Exhibit F (D. Sheth), # 6 Exhibit G (D. Sheth), # 7 Exhibit A (D. Rudovsky)) (fb, ). (Entered: 03/03/2020)

03/03/2020 314 REQUEST by CRYSTAL R. CANTY. (jl, ) (Entered: 03/03/2020)

03/04/2020

315 ORDER THAT REQUEST BY CRYSTAL RAY CANTY TO ADD HERSELF, LEROY EDWIN STERLING, JR. AND KEVEN KEITH ROBINSON TO THE DOCKET AS PLAINTIFFS 314 IS DENIED, ETC. FURTHER, THE COURT NOR THE CLERK'S OFFICE WILL

ADD INIDIVUAL PLAINTIFFS TO THE DOCKET UNLESS MOTIONED BY CLASS COUNSEL. THE CLERK OF COURT SHALL NOT FILE ANY ADDITIONAL REQUESTS, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 03/04/2020. 03/04/2020 ENTERED AND COPIES MAILED TO CRYSTAL RAY CANTY AND E-MAILED.(nds) (Entered: 03/04/2020)

03/13/2020 316 REQUEST FOR RECONSIDERATION by UNIVERSAL CO-OP MEMBERSHIP, INC.. (jl, ) (Entered: 03/16/2020)

03/16/2020

317 ORDER THAT THE MOTION FOR RECONSIDERATION FILED BY "UNIVERSAL CO-OP, MEMBERSHIPS, INC." 316 IS DENIED FOR THE REASONS OUTLINED HEREIN. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 03/16/2020. 03/16/2020 ENTERED AND COPIES E-MAILED.(nds) (Entered: 03/16/2020)

04/23/2020

318 Consent MOTION for Extension of Time to File Pertaining to Final Approval of the Consent Decrees filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE.Certificate of Service.(DHILLON, SIMRAN) (Entered: 04/23/2020)

04/23/2020

319 ORDER THAT DEFENDANTS' SECOND CONSENT MOTION TO EXTEND DEADLINES 318 IS GRANTED, ETC. THE COURT WILL HOLD A FINAL FAIRNESS HEARING ON AUGUST 3, 2020 AT 10:00 A.M. IN COURTROOM 15A BEFORE THE HONORABLE EDUARDO C. ROBRENO. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 04/23/2020. 04/23/2020 ENTERED AND COPIES E-MAILED.(nds) (Entered: 04/23/2020)

06/22/2020 320 CHARLES TALBERT'S THIRD PARTY MOTION TO INTERVENE AND ENFORCE SETTLEMENT FUNDS.(jpd, ) (Entered: 06/23/2020)

06/23/2020

321 Consent MOTION for Extension of Time to File Motions in Support of Final Approval of Consent Decrees filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH..(SHETH, DARPANA) (Entered: 06/23/2020)

06/24/2020

322 ORDER THAT PLAINTIFFS' FIRST CONSENT 321 MOTION FOR EXTENSION OF TIME TO FILE MOTIONS IN SUPPORT OF FINAL APPROVAL OF THE CONSENT DECREES 321 IS GRANTED TO THE EXTENT THAT THE MOTION FOR FINAL APPROVAL OF THE CONSENT DECREES AND ANY SUPPORTING PAPERS SHALL BE FILED WITH THE COURT BY JULY 15, 2020. THE COURT WILL HOLD A FINAL FAIRNESS HEARING ON AUGUST 3, 2020 AT 1:00 PM IN COURTROOM 8A,

U.S. COURTHOUSE, 601 MARKET ST., PHILA., PA. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/24/20.6/24/20 ENTERED & E-MAILED.(fdc) (Entered: 06/24/2020)

06/24/2020

Set/Reset Scheduling Order Deadlines:( MOTIONS DUE BY 7/15/2020.), Set/Reset Hearings:( MISCELLANEOUS HEARING SET FOR 8/3/2020 01:00 PM IN COURTROOM BEFORE HONORABLE EDUARDO C. ROBRENO.) (fdc, ) (Entered: 06/24/2020)

06/30/2020

323 Letter dated 6/30/20 TO THE JUDGE AND JUSTICE OF SAID COURT RE: CERTAIN STATEMENTS; ETC. by JOHNNY YOUNG (JL ) (Entered: 07/02/2020)

07/07/2020

324 RESPONSE to Motion re 320 MOTION to Intervene and Enforce Settlement Funds filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH. (Attachments: # 1 Ex. A, # 2 Ex. B, # 3 Ex. C, # 4 Ex. D, # 5 Ex. E, # 6 Ex. F, # 7 Ex. G)(SHETH, DARPANA) (Entered: 07/07/2020)

07/10/2020

325 Consent MOTION for Extension of Time to File Motion for Final Approval of the Consent Decree on the Conflict-of-Interest Claims and to Move Hearing Date filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH..(SHETH, DARPANA) (Entered: 07/10/2020)

07/15/2020

326 Consent MOTION and Memorandum in Support of Final Approval of Class Certification and Consent Decree on the Courtroom Claims filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Memorandum. (Attachments: # 1 Ex A_Proposed Consent Decree on Courtroom Claims, # 2 Ex B_Declaration of Meredith Rogers, # 3 Ex C_Declaration of Darpana M. Sheth, # 4 Proposed Order)(SHETH, DARPANA) (Entered: 07/15/2020)

07/15/2020

327 ORDER THAT PLAINTIFFS' SECOND CONSENT 325 MOTION FOR EXTENSION OF TIME TO FILE MOTIONS IS GRANTED. THE MOTION FOR FINAL APPROVAL SHALL BE FILED BY JULY 31, 2020. THE COURT WILL HOLD A FAIRNESS HEARING ON BOTH CONSENT DECREES ON OCTOBER 14, 2020 AT 10:00 AM IN COURTROOM 15A, U.S. COURTHOUSE, 601 MARKET ST., PHILA., PA. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 7/15/20.7/15/20 ENTERED & E-MAILED. NOT MAILED TO COUNSEL. (fdc) (Entered: 07/15/2020)

07/15/2020

Set/Reset Hearings: MISCELLANEOUS HEARING SET FOR 10/14/2020 10:00 AM IN COURTROOM BEFORE HONORABLE EDUARDO C. ROBRENO. (fdc, ) (Entered: 07/15/2020)

07/15/2020

Set/Reset Scheduling Order Deadlines: MOTIONS DUE BY 7/31/2020. (fdc, ) (Entered: 07/15/2020)

07/20/2020

328 NOTICE of Withdrawal of Appearance by MARK MAGUIRE on behalf of CITY OF PHILADELPHIA, JAMES F. KENNEY(MAGUIRE, MARK) (Entered: 07/20/2020)

07/20/2020

329 NOTICE of Withdrawal of Appearance by ANDREW J. COVAL on behalf of JACQUELINE F. ALLEN, JOSEPH H. EVERS, CHARLES A. MAPP, SHELIA A. WOODS-SKIPPER(COVAL, ANDREW) (Entered: 07/20/2020)

07/30/2020 330 RESPONSE TO ORDER (DOC. 327) AND MOTION (DOC. 326), filed by LUIS OYOLA. (sg, ) (Entered: 07/31/2020)

07/31/2020

331 Consent MOTION and Memorandum in Support of Final Approval of Class Certification and Consent Decree on Plaintiffs' Fifth and Sixth Claims for Relief filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.. (Attachments: # 1 Ex. A - Previously Filed Consent Decree on Claims 5 and 6, # 2 Ex. B Addendum, # 3 Ex. C - Declaration of Risa Neiman, # 4 Ex. D Declaration of Christos Sourovelis, # 5 Ex. E - Declaration of Norys Hernandez, # 6 Ex. F - Declaration of Nassir Geiger, # 7 Proposed Order)(SHETH, DARPANA) (Entered: 07/31/2020)

08/13/2020

ORDER 327 MAILED TO COUNSEL. (fdc) (Entered: 08/13/2020)

08/14/2020

332 STIPULATION of Consent to Join Class by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE. (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL). (DHILLON, SIMRAN) Modified on 8/17/2020 (fb). (Entered: 08/14/2020)

08/17/2020

333 STIPULATION AND ORDER OF CONSENT TO JOIN CLASS. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/17/20. 8/17/20 ENTERED AND COPIES NOT MAILED TO COUNSEL AND E-MAILED.(rf, ) (Entered: 08/17/2020)

08/25/2020

DOC 333 MAILED ON 8/25/2020 (kp, ) (Entered: 08/25/2020)

09/03/2020

334 NOTICE of Withdrawal of Appearance by DARPANA M. SHETH on behalf of NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH(SHETH, DARPANA) (Entered: 09/03/2020)

09/09/2020 335 ORDER THAT CHARLES TALBERT'S THIRD PARTY MOTION TO INTERVENE AND ENFORCE SETTLEMENT FUNDS IS

DENIED. THE CLERK OF COURT IS DIRECTED TO SEND MR TALBERT A COPY OF THIS ORDER AND ATTACHMENT TO HIS CURRENT ADDRESS.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 9/9/20.9/9/20 ENTERED AND COPIES NOT MAILED TO MR TALBERT AND E-MAILED.(mbh, ) (Entered: 09/09/2020)

09/09/2020

PLEADING #335 MAILED TO PRO SE (JL ) (Entered: 09/09/2020)

09/30/2020

336 Copy of Order dated 9/9/20 (Document # 335) and envelope returned from the U.S. Postal Service addressed to Charles Talbert for the following reason: Return to Sender - Failed Authentication. (fdc) (Entered: 09/30/2020)

10/05/2020

337 MOTION re 327 Order on Motion for Extension of Time to File, that the Oct. 14 Hearing Regarding Final Approval Be Conducted Via Electronic/Remote Means filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Memorandum. (Attachments: # 1 Memorandum in support of Motion that the Oct. 14 Hearing Regarding Final Approval Be Conducted via Electronic/Remote Means, # 2 Proposed Order)(FROMMER, ROBERT) (Entered: 10/05/2020)

10/05/2020 338 CLASS MEMBERS MOTION TO INTERVENE AND TO WITHDRAW COUNSEL filed by CHARLES TALBERT..(jaa, ) (Entered: 10/05/2020)

10/05/2020

339 Objections by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE TO PLAINTIFFS REQUEST FOR $435,000 IN CLAIMS ADMINISTRATION FEES. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C)(JACKAL, BENJAMIN) (Entered: 10/05/2020)

10/05/2020

340 RESPONSE in Opposition re 337 MOTION re 327 Order on Motion for Extension of Time to File, that the Oct. 14 Hearing Regarding Final Approval Be Conducted Via Electronic/Remote Means filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE. (Attachments: # 1 Text of Proposed Order)(JACKAL, BENJAMIN) (Entered: 10/05/2020)

10/06/2020

341 NOTICE by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH re 331 Consent MOTION and Memorandum in Support of Final Approval of Class Certification and Consent Decree on Plaintiffs' Fifth and Sixth Claims for Relief and re: Supplemental Filing (Attachments: # 1 Declaration of Doila Welch)(FROMMER, ROBERT) (Entered: 10/06/2020)

10/07/2020

342 ORDERED THAT THE MOTION IS DENIED. THE COURT, IN ITS SEPTEMBER 9, 2020 ORDER, UPDATED MR. TALBERT ON THE STATUS OF HIS CLAIM, INCLUDING THAT THE COURT HAS NOT YET APPROVED ANY SETTLEMENTS IN THE CASE. AS A RESULT, COUNSEL CANNOT BE WITHHOLDING SETTLEMENT FUNDS FROM MR. TALBERT BECAUSE THEY HAVE NOT YET BEEN AUTHORIZED. THE CLERK OF COURT IS DIRECTED TO SEND MR. TALBERT A COPY OF THIS ORDER TO HIS CURRENT ADDRESS OF: CHARLES TALBERT QA4727 SCI-PHOENIX 1200 MOKYCHIC DRIVE COLLEGEVILLE, PA 19426 SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 10/7/20.10/8/20 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(jpd, ) (Entered: 10/08/2020)

10/07/2020

343 ORDERED THAT THE MOTION FOR THE OCTOBER 14 HEARING REGARDING FINAL APPROVAL BE CONDUCTED VIA ELECTRONIC/REMOTE MEANS ECF NO. 337 IS DENIED. THE COURT HAS IMPLEMENTED PROTOCOLS TO ENSURE A SAFE ENVIRONMENT FOR THE PARTICIPANTS AND AUDIENCE INCLUDING REQUIRING THE USE OF MASKS, IMPLEMENTING SOCIAL DISTANCING, AND SANITIZING THE COURTROOMS. THE COURT HAS DETERMINED THAT IT IS ESPECIALLY IMPORTANT TO HOLD THIS HEARING IN PERSON GIVEN THE FACT THAT INDIVIDUAL CLASS MEMBERS WILL BE GIVEN THE OPPORTUNITY TO VOICE OPINIONS ABOUT THE PROPOSED CONSENT DECREES.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 10/7/20.10/8/20 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED(jpd, ) (Entered: 10/08/2020)

10/08/2020

COPIES FORWARDED TO CHARLES TALBERT AT BOTH ADDRESS LISTED ON ORDER 342 AND ADDRESS FROM INMATE LOCATOR (jpd, ) (Entered: 10/08/2020)

10/09/2020 344 MOTION to Withdraw 339 Objections, filed by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE.Certificate of Service.(JACKAL, BENJAMIN) (Entered: 10/09/2020)

10/09/2020

345 MOTION Regarding Remote Participation at the October 14, 2020 Fairness Hearing filed by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH.Certificate of Service. (Attachments: # 1 Proposed Order)(FROMMER, ROBERT) (Entered: 10/09/2020)

10/09/2020 346 NOTICE by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH re 331 Consent MOTION and

Memorandum in Support of Final Approval of Class Certification and Consent Decree on Plaintiffs' Fifth and Sixth Claims for Relief and regarding Revised Settlement Calculations (Attachments: # 1 Declaration of Robert P. Frommer, # 2 Revised Restitutionary Fund Distribution Sheet)(FROMMER, ROBERT) (Entered: 10/09/2020)

10/13/2020

347 ORDER THAT PLAINTIFFS' MOTION FOR REMOTE PARTICIPATION AT THE FINAL FAIRNESS HEARING IS DENIED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 10/13/20.10/13/20 ENTERED AND E-MAILED, NOT MAILED TO PRO SE.(JL ) (Entered: 10/13/2020)

10/13/2020

348 ORDER THAT DEFENDANT PHILADELPHIA DISTRICT ATTORNEY'S OFFICE'S MOTION TO WITHDRAW ITS OBJECTION TO PLAINTIFFS' REQUEST FOR APPROVAL OF $435,000 FOR CLAIMS ADMINISTRATION FEES IS GRANTED AND THE OBJECTION WITHDRAWN; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 10/13/20.10/13/20 ENTERED AND NOT MAILED TO PRO SE, E-MAILED.(JL ) (Entered: 10/13/2020)

10/13/2020

Mailed to Notice Only Parties Doc. #347, #348 (er, ) (Entered: 10/13/2020)

10/14/2020 349 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO Final Fairness Hearing held on 10/14/20. Court Reporter: ESR. (mbh, ) (Entered: 10/14/2020)

10/14/2020

350 ORDERED THAT: NO LATER THAN NOVEMBER 16, 2020, COUNSEL SHALL SUBMIT A LETTER TO THE COURT WHICH: (A) CALCULATES THE EFFECTS OF INCREASING THE REWARD TO EACH CLASS MEMBER ALONG WITH A RECOMMENDED INCREASES; (B) PROVIDES A CLARIFICATION OF HOW MANY CLAIMS FALL INTO EACH OF THE THREE AWARD CATEGORIES; (C) EXPLAINS FOR HOW LONG THE COURT WILL RETAIN JURISDICTION OVER THE CONSENT DECREE ON PLAINTIFFS FIFTH AND SIXTH CLAIMS; AND (D) OUTLINES THE PROPOSED DISTRIBUTION OF THE REMAINING CY PRES FUND. THEREAFTER, THE COURT WILL RECONVENE THE HEARING AT A DATE AND TIME TO BE ANNOUNCED.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 10/14/2020. 10/14/2020 ENTERED AND COPIES E-MAILED. NOT MAILED TO PRO SES.(sg, ) (Entered: 10/14/2020)

10/15/2020

DOC # 350 MAILED TO PRO SES ON 10/15/20 (rf, ) (Entered: 10/15/2020)

10/16/2020

351 TRANSCRIPT of held on 10/14/20, before Judge ROBRENO. FAIRNESS HEARING Court Reporter/Transcriber M. COSGROVE. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 11/6/2020. Redacted Transcript Deadline set for 11/16/2020. Release of Transcript Restriction set for 1/14/2021. (TK TRANSCRIBERS)(JL) (Entered: 10/16/2020)

10/16/2020 352 Notice of Filing of Official Transcript with Certificate of Service re 351 Transcript - PDF, 10/16/20 Entered and Copies Emailed and NOT Mailed to Pro se. (JL ) (Entered: 10/16/2020)

10/19/2020

Copy of Doucment 352 mailed to Pro se Petitioner Crystal Canty. (DT) (Entered: 10/19/2020)

11/16/2020

353 NOTICE by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH re 350 Order,, of Submission of Letter Requested by Court (FROMMER, ROBERT) (Entered: 11/16/2020)

11/16/2020

354 NOTICE by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE re 350 Order,, Letter in response to ECF 350. (JACKAL, BENJAMIN) (Entered: 11/16/2020)

11/17/2020

355 NOTICE by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH re 353 Notice (Other) of Certificate of Service for 11/16/20 Letter to Court (FROMMER, ROBERT) (Entered: 11/17/2020)

11/18/2020 356 NOTICE by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE re 354 Notice (Other) Certificate of Service for ECF No. 354 (JACKAL, BENJAMIN) (Entered: 11/18/2020)

11/19/2020

357 ORDER THAT THE COURT WILL HOLD A TELEPHONIC CONFERENCE ON THE NEW PROPOSALS ON 12/14/20 AT 10:00 A.M.; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 11/19/20. 11/19/20 ENTERED AND E-MAILED, MAILED TO PRO SE.(jl, ) (Entered: 11/19/2020)

12/09/2020

358 NOTICE of Appearance by JOHN ANDREW JENEMANN on behalf of PHILADELPHIA DISTRICT ATTORNEY'S OFFICE with Certificate of Service(JENEMANN, JOHN) (Entered: 12/09/2020)

12/14/2020 359 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO. Re: A Status Conference was held on 12/14/20. (fdc) (Entered: 12/14/2020)

12/14/2020 360 NOTICE by PHILADELPHIA DISTRICT ATTORNEY'S OFFICE re 354 Notice (Other) Letter to Court (JACKAL, BENJAMIN) (Entered: 12/14/2020)

01/27/2021 361 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/27/21. 1/27/21 ENTERED AND EMAILED.(rf, ) Modified 1/28/21 (fdc). (Entered: 01/27/2021)

01/27/2021

362 MEMORANDUM AND ORDER THAT MOTION TO APPROVE THE INJUNCTIVE CLAIMS CONSENT DECREE IS GRANTED AS OUTLINED HEREIN. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/27/21. 1/27/21 ENTERED AND E-MAILED.(rf, ) Modified 1/28/21 (fdc). (Entered: 01/27/2021)

01/27/2021

363 ORDER THAT MOTION IS GRANTED AND DEFENDANT CITY OF PHILADELPHIA IS ORDERED TO PAY PLAINTIFFS ATTORNEYS, THE INSTITUTE FOR JUSTICE AND KAIRYS, RUDOVSKY, MESSING FEINBERG & LIN ATTORNEYS FEES IN AMOUNT OF $2,630,000. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/27/21. 1/27/21 ENTERED AND EMAILED.(rf, ) Modified 1/28/21 (fdc) (Entered: 01/27/2021)

01/27/2021 364 MEMORANDUM. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/27/21. 1/27/21 ENTERED AND EMAILED.(amas, ) Modified 1/28/21 (fdc). (Entered: 01/27/2021)

01/27/2021

365 MEMORANDUM ORDER THAT THE MOTION TO APPROVE THE RESTITUTIONARY CLAIMS CONSENT DECREE (DOC. NO. 331 ) IS GRANTED IN PART AS OUTLINED HEREIN. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/27/21. 1/27/21 ENTERED AND E-MAILED.(amas, ) Modified on 1/28/2021 (jl, ).(VACATED PER #366) Modified 1/28/21 (fdc). (Entered: 01/27/2021)

01/28/2021

366 ORDER THAT THE MOTION TO APPROVE THE RESTITUTIONARY CLAIMS CONSENT DECREE IS GRANTED IN PART. THE ORDER OF 1/27/21 (ECF NO.365) IS VACATED. THE COURT APPROVES THE RESTITUTIONARY CLAIMS CONSENT DECREE AS DISCUSSED AND DETAILED IN THE MEMORANDUM OF THIS SAME DATE, INCLUDING ITS PERMANENT INJUNCTION PROVISIONS, AS FAIR, REASONABLE AND ADEQUATE UNDER FED.R.CIV.P. 23 (e)(2). THE PARTIES SHALL FILE A JOINT MODIFIED RESTITUTIONARY CLAIMS CONSENT DECREE WHICH IS CONSISTENT WITH THE COURT'S MEMORANDUM TREATMENT OF CY PRES NO LATER THAN 2/15/21; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/28/21.

1/28/21 ENTERED AND E-MAILED.(JL ) Modified 1/28/21 (fdc). (Entered: 01/28/2021)

01/28/2021

COPIES OF MEMO #361 AND ORDER #362 MAILED TO UNREPS (jpd, ) (Entered: 01/28/2021)

02/03/2021

PAPER #366 MAILED TO PRO SE AND UNREPS (JL ) (Entered: 02/03/2021)

02/15/2021

367 NOTICE by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH re 366 Order,, of Filing Second Addendum (Attachments: # 1 Exhibit 1 - Second Addendum with All Signatures)(FROMMER, ROBERT) (Entered: 02/15/2021)

02/16/2021

368 NOTICE by NASSIR GEIGER, NORYS HERNANDEZ, CHRISTOS SOUROVELIS, DOILA WELCH re 367 Notice (Other) of Certificate of Service for 2/15/21 Notice of Filing Second Addendum of Proposed Revised Consent Decree on Plaintiffs' Fifth and Sixth Claims for Relief (FROMMER, ROBERT) (Entered: 02/16/2021)

02/17/2021

369 ORDER THAT THE COURT APPROVES THE CONSENT DECREE ON PLFF'S FIFTH AND SIXTH CLAIMS FOR RELIEF (ECF 331) AS MODIFIED BY THE TWO ADDENDA EXECUTED BY THE PARTIES (ECF 331-2 & 367) AS FAIR, REASONABLE, & ADEQUATE UNDER F.R.C.P. 23(e)(2). IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL MARK THIS CASE AS CLOSED, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 2/17/21. 2/17/21 ENTERED AND COPIES EMAILED. "NOT MAILED TO PRO SE AND UNREP PARTIES AND ATTORNEY"(kw, ) (Entered: 02/17/2021)

02/22/2021

DOC. 369 MAILED TO UNREPS. (sg, ) (Entered: 02/22/2021)

03/29/2021 370 Letter dated 3/25/21 by Charles Talbert. (jaa, ) (Entered: 03/29/2021)

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