UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

__________________________________ 

 ) 

BENJAMIN COLEMAN, through his ) 

Conservator, ROBERT BUNN, et al., ) 

 ) 

Plaintiffs, ) 

 ) Civ. Action No. 13-1456 (EGS) 

v. ) 

 ) 

DISTRICT OF COLUMBIA, ) 

 ) 

Defendant. ) 

__________________________________) 

MEMORANDUM OPINION

Benjamin Coleman brought this lawsuit to challenge a District 

of Columbia law that directed the sale of a lien on his home 

after he failed to pay a $133.88 property-tax bill. That law 

permitted the private purchaser of the lien to add $4,999 in 

interest, costs, and fees to Mr. Coleman’s bill and, when Mr. 

Coleman could not pay, to institute a foreclosure proceeding. 

After the foreclosure proceeding, the private purchaser obtained 

title to Mr. Coleman’s home. Mr. Coleman, however, received 

nothing, although the amount of equity he had in his home far 

surpassed the amount he admittedly owed in taxes, interest, 

costs, and related fees. Because the loss of this surplus equity 

was dictated by District of Columbia law, Mr. Coleman sued to 

challenge that law. His claim is that the taking of his excess 

equity—the amount of equity minus the taxes and related costs he 

admits that he owed—violated his constitutional rights under the 
2 

Takings Clause of the Fifth Amendment to the United States 

Constitution. As a remedy for the alleged constitutional 

violation, Mr. Coleman asked this Court to award him monetary 

damages and to issue a declaratory judgment. Mr. Coleman brought 

this case not only on his own behalf, but also as a 

representative of all District property owners who suffered a 

loss of excess equity due to the District’s tax-sale law. 

In September of 2014, this Court rejected the District’s 

attempt to dismiss the case. See Coleman ex rel. Bunn v. 

District of Columbia, No. 13-1456, 2014 WL 4819092 (D.D.C. Sept. 

30, 2014). Subsequently, the Court permitted Mr. Coleman to 

amend his Complaint to add a second named plaintiff, the Estate 

of Jean Robinson. Ms. Robinson, like Mr. Coleman, lost her 

excess equity due to the District’s tax-sale law. Her son, 

Wellington Robinson, as personal representative of her estate, 

seeks the same relief as Mr. Coleman. 

Mr. Coleman and Ms. Robinson’s Estate now ask the Court to 

certify this lawsuit as a class action, to permit them to 

represent all other District of Columbia property owners who 

similarly lost equity in excess of the amount of taxes and 

related fees they owed because of the tax-sale law. Upon 

consideration of their motion, the response and reply thereto, 

the applicable law, the entire record, and the oral argument, 

the Court concludes that Mr. Coleman and Ms. Robinson’s Estate 
3 

are entitled to certification as a class action and GRANTS their 

motion. 

I. Background 

A. The Challenged Tax-Sale Statutes 

“The District of Columbia’s laws governing the procedure for 

collecting delinquent property taxes are codified in Chapter 13A 

of title 47 of the D.C. Code.” Coleman, 2014 WL 4819092, at 

*2. When a property-tax payment becomes delinquent, that tax 

obligation “automatically become[s] a lien on the real 

property.” D.C. Code § 47–1331(a). The District is then required 

to “sell all real property on which the tax is in 

arrears.” Id. § 47–1332(a). These sales follow a defined 

procedure: 

“At least 30 days before” any such sale is to be 

advertised, “the Mayor shall mail to the person who last 

appears as owner of the real property on the tax roll . 

. . a notice of delinquency.” Id. § 47–1341(a). Once 

thirty days have passed “from the mailing of the notice 

of delinquency,” the District must advertise that the 

property “will be sold at public auction because of 

taxes.” Id. § 47–1342(a). At this public sale, the 

District must sell the property “in its entirety,” id. § 

47–1343, “to the purchaser who makes the highest 

bid.” Id. § 47–1346(a)(2). Sales are not to be conducted 

“for less than the amount of the taxes,” however. Id. § 

47–1346(c). 

Coleman, 2014 WL 4819092, at *2. 

During the six months following the sale, “the purchaser may 

not foreclose the original owner’s right to redeem the 

property.” Id. (citing D.C. Code § 47–1370(a)). The original 
4 

owner is able to redeem the property “by paying to the District 

‘the amount paid by the purchaser . . . exclusive of surplus 

with interest thereon,’ as well as ‘other taxes, interest, and 

penalties paid by a purchaser,’ and ‘expenses for which the 

purchaser is entitled to reimbursement.’” Id. (citing D.C. Code 

§ 47–1361(a)). 

After the redemption period closes, the purchaser “may file a 

complaint to foreclose the right of redemption of the real 

property.” D.C. Code § 47–1370(a). “The purchaser of the taxsale certificate must bring the action against the original 

owner of the property and the District of Columbia, as well as 

any entity with a particular interest in the property.” Coleman, 

2014 WL 4819092, at *2 (citing D.C. Code § 47–1371(b)(1)). The 

Court has described the potential effects of such a legal 

action: 

The law permits the Superior Court to issue a final 

judgment “foreclosing the right of redemption,” which 

bars the original owner from redeeming the property and 

vests in the purchaser a deed in fee simple. See id. § 

47–1382(a). In doing so, the law permits the taking of 

not only the amount of delinquent taxes, plus any costs, 

fees, and interest, but also the entirety of the original 

owner’s equity in the property. 

Id.

B. The District’s Amended Tax-Sale Statute 

After this lawsuit was filed in 2013, the D.C. Council passed 

two temporary amendments to the District’s tax-sale law. On 
5 

October 4, 2013, the Council passed an emergency amendment, 

which served, among other things, “to cancel any tax sale that 

occurred for the July 2013 tax sale of a resident’s real 

property who is a senior citizen, veteran, or disabled 

individual” and “to require the District to pay the owner of 

record before the tax sale any amount . . . in excess of the 

amount of taxes due to the District.” District Real Property Tax 

Sale Emergency Act, A20-179, pmbl.; see also id. § 2. On October 

17, 2013, the District passed a temporary amendment, which 

codified the October 4th emergency amendment. See District Real 

Property Tax Sale Temporary Act of 2013, A20-194, § 2.

In 2014, the D.C. Council enacted another temporary emergency 

measure, which expired on August 26, 2014. See Residential Real 

Property Equity and Transparency Emergency Amendment Act of 

2014, A20-342. That amendment modified the procedures for future 

tax sales to, among other things, provide for the return of a 

portion of the excess equity to the former homeowner after the 

sale occurs. See id. § 101(c)(31). A permanent amendment to the 

District’s tax-sale law, with similar effect, has now been 

passed. See D.C. Fiscal Year 2015 Budget Support Act of 2014, 

A20-424, § 7102(c)(30). That amendment appears to have taken 

effect on February 26, 2015. See B20-0750 – Fiscal Year 2015 

Budget Support Act of 2014, D.C. Council, http://lims.dccouncil. 

us/Legislation/B20-0750 (last visited April 13, 2015). 
6 

C. Procedural History 

This lawsuit was filed on behalf of Mr. Coleman by Robert 

Bunn, who was appointed by the Superior Court “to manage 

Mr. Coleman’s legal and financial affairs.” Compl., ECF No. 1 ¶ 

15. The District moved to dismiss this case, arguing that the 

Court lacked jurisdiction over Mr. Coleman’s claims and that he 

failed to state a claim for a violation of the Takings Clause. 

See Def.’s Mot. to Dismiss, ECF No. 5. While that motion was 

pending, Mr. Coleman moved for class certification. See First 

Mot. to Certify Class, ECF No. 12. 

The Court held a hearing on the District’s motion to dismiss 

on September 26, 2014, and issued its Opinion denying the motion 

on September 30, 2014. See Coleman, 2014 WL 4819092. The Court’s 

Order denying the motion to dismiss directed the parties to 

“file supplemental briefs addressing the effect, if any, of the 

accompanying Memorandum Opinion on plaintiff’s pending motion 

for class certification.” Order, ECF No. 17 at 1. While the 

parties were briefing this issue, Mr. Coleman moved for leave to 

submit an amended complaint, to add as a named plaintiff the 

Estate of Jean Robinson. See Mot. to Amend, ECF No. 20. The 

District opposed the motion on the grounds that amendment would 

be futile because Ms. Robinson’s will had not been admitted to 

probate, and her son, Wellington Robinson, had not been 

appointed as representative of her estate. See Opp. to Mot. to 
7 

Amend, ECF No. 22. At Mr. Coleman’s request, the Court deferred 

ruling on this motion while probate proceedings were underway. 

On December 29, 2014, Mr. Coleman informed the Court that Ms. 

Robinson’s will had been admitted to probate and that Wellington 

Robinson had been appointed personal representative of the 

estate. See Pl.’s Status Report, ECF No. 29. The Court granted 

the motion to amend the following day. See Minute Order of 

December 30, 2014. In light of the addition of a new potential 

class representative, the Court denied without prejudice Mr. 

Coleman’s motion for class certification and directed the filing 

of a renewed motion to address “whatever effect, if any, the new 

plaintiff may have on the class-certification analysis.” Id.

The plaintiffs filed their motion for class certification on 

January 9, 2015. See Pls.’ Mem. in Supp. of Mot. to Certify 

Class (“Mem.”), ECF No. 31-1. In that motion, they seek to 

certify two classes. See id. at 4. The first, “the damages 

class,” is defined as: 

All persons who owned residential property on which the 

District of Columbia assessed a lien for an unpaid 

property tax deficiency, and where following the sale of 

a tax deed, such property was foreclosed upon and title 

transferred pursuant to D.C. Code §§ 47-1330 to 47-1385 

and where such property included equity above the amount 

of real estate taxes, interest, penalties, expenses and 

attorney’s fees at the time a tax deed was issued. 

Id. The second class, “the declaratory relief class,” is defined 

slightly differently: 
8 

All persons who own or owned residential property on 

which the District of Columbia has assessed a lien for 

an unpaid property tax deficiency, and for which lien 

the District subsequently sold the right to foreclose 

the right of redemption for the property pursuant to 

D.C. Code §§ 47-1330 to 47-1385 and where such property 

included equity above the amount of real estate taxes, 

interest, penalties, expenses and attorney’s fees at the 

time a tax deed was issued. 

Id. The District opposes the motion for class certification, 

Def.’s Opp. to Mot. to Certify Class (“Opp.”), ECF No. 33, and 

the plaintiffs have filed a reply brief. See Pls.’ Reply in 

Supp. of Mot. to Certify Class (“Reply”), ECF No. 34. At the 

Court’s request, the parties filed supplemental briefs on March 

18, 2015 answering a question not addressed in either parties’ 

pleadings. See Pls.’ Suppl. Br., ECF No. 35; Def.’s Suppl. Br., 

ECF No. 36; Part III.B.1, infra. The Court held oral argument on 

the motion on March 25, 2015, and the motion is now ripe for 

resolution. 

II. Standing 

“Any analysis of class certification must begin with the issue 

of standing.” Prado-Steinman ex rel. Prado v. Bush, 221 F.3d 

1266, 1280 (11th Cir. 2000) (quotation marks and alteration 

omitted); see also In re Lorazepam & Clorazepate Antitrust 

Litig., 289 F.3d 98, 108 (D.C. Cir. 2002) (“The question of 

constitutional standing . . . is a prerequisite to Rule 23 class 

certification because it goes to the court’s jurisdiction.”). 

“To satisfy Article III’s standing requirement, ‘a plaintiff 
9 

ordinarily must establish that (1) he or she has suffered an 

injury-in-fact; (2) there is a causal connection between the 

injury and the conduct complained of; and (3) the injury will 

likely be redressed by a favorable decision.’” Assoc. Builders & 

Contractors, Inc. v. Shiu, 30 F. Supp. 3d 25, 34 (D.D.C. 2014) 

(quoting In re Polar Bear Endangered Species Act Listing, 627 F. 

Supp. 2d 16, 24 (D.D.C. 2009)). 

Plaintiffs also “bear[] the burden of showing that [they have] 

standing for each type of relief sought.” Summers v. Earth 

Island Inst., 555 U.S. 488, 493 (2009). When a party seeks a 

declaratory judgment, this requires that the case be one “of 

actual controversy within [the Court’s] jurisdiction.” 28 U.S.C. 

§ 2201(a). “‘To establish that a matter is a controversy rather 

than an abstract question, a party seeking declaratory relief 

must show that there is a substantial controversy, between 

parties having adverse legal interests, of sufficient immediacy 

and reality to warrant the issuance of a declaratory judgment.’” 

Covington v. JPMorgan Chase, No. 9-30, 2014 WL 3734265, at *7 

(D.D.C. July 30, 2014) (quoting Hoffman v. District of Columbia, 

643 F. Supp. 2d 132, 140 (D.D.C. 2009)). 

Plaintiffs have asserted, and the District does not dispute, 

that the Damages Class has standing. See Mem. at 5.1 The District 

 

1 Individuals whose property was foreclosed upon and title 

transferred pursuant to the District’s tax-sale statute have 
10 

argued in its opposition brief that the Declaratory Relief Class 

lacks standing because it contains members whose claims would be 

rendered moot by the enactment of amendments to the District’s 

tax-sale law. See Opp. at 25–27. Those amendments went into 

effect soon after the parties finished briefing the motion for 

class certification. During the March 25, 2015 hearing, the 

plaintiffs conceded that the Court should consider defining the 

Declaratory Relief Class in a manner that would render it 

identical to the Damages Class. The District agreed that this 

would absolve any standing issue. Accordingly, the Court will 

consider whether to certify the Declaratory Relief Class, 

defined as: 

All persons who owned residential property on which the 

District of Columbia assessed a lien for an unpaid 

property tax deficiency, and where following the sale of 

a tax deed, such property was foreclosed upon and title 

transferred pursuant to D.C. Code §§ 47-1330 to 47-1385 

and where such property included equity above the amount 

of real estate taxes, interest, penalties, expenses and 

attorney’s fees at the time a tax deed was issued. 

Mem. at 4. This class may seek a retrospective declaratory 

judgment because its claims are “intertwined with a claim for 

monetary damages that requires [the Court] to declare whether a 

 

suffered an injury insofar as they had equity above the amount 

of taxes, interest, and related costs and penalties owed. See 

Coleman, 2014 WL 4819092, at *17 (if a separate property 

interest in equity exists, the effect of the law would appear to 

be that “[p]roperty to which an individual is legally entitled 

has been taken without recourse”). 
11 

past constitutional violation occurred.” Lippoldt v. Cole, 468 

F.3d 1204, 1217 (10th Cir. 2006) (quotation marks omitted). 

III. Class Certification 

“The class action is an exception to the usual rule that 

litigation is conducted by and on behalf of the individual named 

parties only.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 

(2013) (quotation marks omitted). Certification of a class 

action is governed by Rule 23 of the Federal Rules of Civil 

Procedure, and a plaintiff “must affirmatively demonstrate his 

compliance with” Rule 23. Wal-Mart Stores, Inc. v. Dukes, 131 S. 

Ct. 2541, 2551 (2011). “This is done not by pleading compliance, 

but by ‘demonstrating compliance in fact.’” Artis v. Yellen, No. 

1-400, 2014 WL 4801783, at *8 (D.D.C. Sept. 29, 2014) (quoting 

Wal-Mart, 131 S. Ct. at 2551) (alterations omitted). The process 

of assessing a plaintiff’s compliance with Rule 23 is often 

“enmeshed in the factual and legal issues comprising the 

plaintiff’s cause of action” so the Court may inquire into the 

merits of the plaintiffs’ claims, Wal-Mart, 131 S. Ct. at 2551–

52, but only to the extent necessary “‘to determin[e] whether 

the Rule 23 prerequisites for class certification are 

satisfied.’” D.L. v. District of Columbia, 713 F.3d 120, 126 

(D.C. Cir. 2013) (quoting Amgen Inc. v. Conn. Ret. Plans & Trust 

Funds, 133 S. Ct. 1184, 1194–95 (2013)). 

A. Existence of a Class 
12 

“Although not specifically mentioned in the rule, an essential 

prerequisite of an action under Rule 23 is that there must be a 

‘class.’” Wright & Miller, Federal Practice & Procedure § 1760A 

(3d ed. 2014); see also Simer v. Rios, 661 F.2d 655, 669 (7th 

Cir. 1981) (“it is axiomatic that for a class action to be 

certified a ‘class’ must exist”). Asking a plaintiff to 

demonstrate the existence of a class is a “common-sense 

requirement,” Bynum v. District of Columbia, 214 F.R.D. 27, 31 

(D.D.C. 2003), which clarifies whether “it is administratively 

feasible . . . to determine whether a particular individual is a 

member [of the class].” Wright & Miller, Federal Practice & 

Procedure § 1760A (3d ed. 2014). “Accordingly, a class may be 

certified only when ‘an individual would be able to determine, 

simply by reading the [class] definition, whether he or she [is] 

a member of the proposed class.’” Artis, 2014 WL 4801783, at *8 

(quoting Bynum, 214 F.R.D. at 32). 

Although the District does not dispute this issue, the Court 

notes briefly that the classes as defined are readily 

ascertainable. To determine whether an individual is a member, 

she need only answer four objective questions: (1) whether the 

District “assessed a lien for an unpaid property tax deficiency” 

on her D.C. residential property; (2) whether the District 

subsequently sold a tax deed on that property; (3) whether the 

purchaser of that property foreclosed on and obtained title to 
13 

the property pursuant to the old tax-sale law; and (4) whether 

she had equity in the property that exceeded the taxes, 

interest, and related costs owed. 

B. Rule 23(a) 

With one exception, the District concedes that the plaintiffs 

satisfy Rule 23(a), which requires 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). “These requirements are known 

respectively as ‘numerosity, commonality, typicality, and 

adequate representation.’” Artis, 2014 WL 4801783, at *9 

(quoting Wal-Mart, 131 S. Ct. at 2550). The District has not 

opposed the plaintiffs’ contention that they satisfy the 

commonality, typicality, and adequate representation 

requirements. 

1. Numerosity 

Because of the general rule in favor of confining litigation 

to the named parties only, a class action is appropriate only 

when “the class is so numerous that joinder of all members is 

impracticable.” Fed. R. Civ. P. 23(a)(1). Although commonly 

called the “numerosity” requirement, “the Rule’s core 

requirement is that joinder be impracticable” and numerosity 
14 

merely “provides an obvious situation in which joinder may be 

impracticable.” Newberg on Class Actions § 3:11 (5th ed. 2014). 

“Impracticability of joinder means only that it is difficult or 

inconvenient to join all class members, not that it is 

impossible to do so.” Bond v. Fleet Bank, No. 1-177, 2002 WL 

31500393, at *4 (D.R.I. Oct. 10, 2002); see also Robidoux v. 

Celani, 987 F.2d 931, 935 (2d Cir. 1993) (“Impracticable does 

not mean impossible.”). Nor does the requirement provide hard 

rules for when joinder will be found to be impracticable; 

rather, it “requires examination of the specific facts of each 

case and imposes no absolute limitations.” Gen. Tel. Co. v. 

EEOC, 446 U.S. 318, 330 (1980); see also Taylor v. D.C. Water & 

Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007) (there is no 

“specific threshold that must be surpassed”). 

Despite this flexible standard, courts have developed helpful 

rules of thumb for assessing the approximate thresholds at which 

joinder becomes presumptively impracticable. Absent unique 

circumstances, “numerosity is satisfied when a proposed class 

has at least forty members.” Richardson v. L’Oreal USA, Inc., 

991 F. Supp. 2d 181, 196 (D.D.C. 2013); see also Alvarez v. 

Keystone Plus Construction Corp., 303 F.R.D. 152, 160 (D.D.C. 

2014).2 At the lower-end, “a class that encompasses fewer than 20 

 

2 Arguably, “as few as 25-30 class members should raise a 

presumption that joinder would be impracticable.” EEOC v. 
15 

members will likely not be certified absent other indications of 

impracticability of joinder.” Newberg on Class Actions § 3:11 

(5th ed. 2014). In assessing the number of potential class 

members, the Court need only find an approximation of the size 

of the class, not “an exact number of putative class members.”

Pigford v. Glickman, 182 F.R.D. 341, 347 (D.D.C. 1998). 

Consistent with the Supreme Court’s admonition that a plaintiff 

must prove compliance with Rule 23 “in fact,” Wal-Mart, 131 S. 

Ct. at 2551, a plaintiff must provide some evidentiary basis 

beyond a bare allegation of the existence of numerous class 

members. The Court may, however, “draw reasonable inferences 

from the facts presented to find the requisite numerosity.” 

McCuin v. Sec’y of Health & Hum. Servs., 817 F.2d 161, 167 (1st 

Cir. 1987); see also, e.g., Houser v. Pritzker, 28 F. Supp. 3d 

222, 241 (S.D.N.Y. 2014) (a plaintiff seeking to establish 

numerosity “may rely on reasonable inferences from available 

facts”). 

a. The Class Consists of Approximately Thirty-Four 

Potential Members 

Plaintiffs asserted in their motion for class certification 

that over forty class members exist, relying upon “[p]ublic real 

estate records . . . to identify individual homeowners who have 

 

Printing Indus. of Metropolitan Washington, 92 F.R.D. 51, 53 

(D.D.C. 1981). 
16 

lost their homes in tax lien foreclosures.” Mem. at 8.3 The 

District concedes that seven individuals are potential class 

members, Opp. at 6, 9, 11, 14, 16, but argues that all other 

individuals identified by the plaintiffs are not potential class 

members for various reasons. The plaintiffs opposed most, but 

not all, of these arguments, listing in their reply brief 

thirty-four potential class members (not including the two named 

plaintiffs). See Reply at 5. 

Upon review of these arguments, the Court noted that the 

District’s arguments seeking to remove individuals from the 

class “[a]rguably . . . ‘put the cart before the horse,’ by 

seeking an adjudication on the merits of the claims of potential 

class members in an attempt to exclude them from the numerosity 

analysis.” Minute Order of March 12, 2015 (quoting Amgen, 133 S. 

Ct. at 1191). The Court accordingly directed the parties to file 

supplemental briefs addressing “whether some or all of the 

District’s arguments regarding numerosity improperly seek a 

merits determination regarding the claims of potential 

plaintiffs and, if so, how that impacts the numerosity issue.” 

Id. 

 

3 The plaintiffs limited their numbers to those who “lost their 

real property . . . during the three years prior to the filing 

of the lawsuit,” but noted that “[m]any more lost their 

properties prior to that period.” Id. 
17 

In their supplemental brief, the plaintiffs assert that the 

District’s numerosity arguments seek improper inquiries into the 

merits of potential class members’ claims, rather than solely 

into whether they meet the criteria for membership in the class. 

See Pls.’ Suppl. Br., ECF No. 35. The District disagrees. In so 

doing, it correctly recites the law regarding the consideration 

of merits issues: The Court must consider merits questions when 

those questions overlap with Rule 23’s requirements. Def.’s 

Suppl. Br., ECF No. 36 at 2; see Ellis v. Costco Wholesale 

Corp., 657 F.3d 970, 981 (9th Cir. 2011). The District appears 

not to dispute the corollary that the Court may not consider 

merits questions that do not overlap with Rule 23’s 

requirements. See D.L., 713 F.3d at 126. The District also 

rightly notes that the Court must resolve any factual disputes 

regarding the existence of a sufficiently numerous class. Def.’s 

Suppl. Br., ECF No. 36 at 3; see Wal-Mart, 131 S. Ct. at 2551 (a 

plaintiff seeking class certification “must affirmatively 

demonstrate his compliance with” Rule 23, by demonstrating 

compliance “in fact”). The problem, however, is that some of the 

District’s numerosity arguments do not raise factual disputes 

about the number of potential class members; rather, they raise 

merits-related defenses to their claims. 

These arguments thereby stray from the purpose of the 

numerosity analysis. Rule 23(a)(1) directs the Court to 
18 

determine whether the plaintiff has put forth evidence to 

support the existence of a sufficiently numerous class. The 

concern of Rule 23(a)(1), therefore, is membership in the class, 

not likelihood of success on the merits. See McLaughlin on Class 

Actions § 4:5 (11th ed. 2014) (the determination under Rule 

23(a)(1) “does not entail an assessment of how many putative 

class members ultimately will have meritorious claims”). The 

District would have the Court remove from the calculation of the 

class’s numbers various individuals whose claims the District 

contends will ultimately fail on the merits, not because those 

individuals do not meet the class definition, but because those 

individuals allegedly consented to the taking of their equity, 

abandoned their property interests, or have claims that are 

barred by res judicata. See Opp. at 4–22. Plaintiffs oppose 

these contentions on their merits, but the Court finds that 

these disputes “put the cart before the horse,” Amgen, 133 S. 

Ct. at 1191, by asking how many successful class members exist, 

rather than how many potential class members exist. 

The Supreme Court recently addressed a similar problem in 

Amgen, where the Court found that a defendant opposing 

certification of a Rule 23(b)(3) class inappropriately sought to 

litigate a merits issue—the materiality of the defendant’s 

alleged misrepresentation—under the guise of establishing that 

individual issues would overwhelm common ones for purposes of 
19 

Rule 23(b)(3)’s predominance requirement. See id. at 1195. The 

Supreme Court rejected this leap to a merits determination—

whether the misrepresentation was material—that did not bear on 

the Rule 23 issue—whether the plaintiffs could attempt to prove 

materiality on a class-wide basis. See id. 

The District seeks to import an equally incongruous merits 

inquiry into Rule 23(a)(1), similar to one the Seventh Circuit 

recently rejected. In Parko v. Shell Oil Co., 739 F.3d 1083 (7th 

Cir. 2014), a putative class of property owners alleged that an 

oil refinery had “leaked benzene and other contaminants into the 

groundwater under the class members’ homes.” Id. at 1084. The 

defendant contended “that a number of the class members were not 

injured—either their groundwater was not contaminated by leakage 

from the refinery or the contamination did not affect the value 

of their property.” Id. This, the defendant claimed, deprived 

those class members of standing, meaning that too few class 

members remained to support a finding of numerosity. See id. The 

Seventh Circuit held that requiring the adjudication of whether 

each potential class member suffered an injury “would make the 

class certification process unworkable; the process would 

require, in this case, 150 trials before the class could be 

certified.” Id. at 1085. Accordingly, “[h]ow many (if any) of 

the class members have a valid claim is the issue to be 

determined after the class is certified.” Id. (emphasis in 
20 

original). Or, as the Court in Amgen put it, the point of Rule 

23 “is not to adjudicate the case; rather, it is to select the 

method best suited to adjudication of the controversy fairly and 

efficiently.” 133 S. Ct. at 1191 (quotation marks and 

alterations omitted). Other courts have recently come to similar 

conclusions regarding merits arguments cloaked in numerosity 

garb. See, e.g., Lindh v. Warden, No. 2:14-cv-00142, 2014 WL 

7334745, at *3 (S.D. Ind. Dec. 19, 2014); Langendorf v. 

Skinnygirl Cocktails, LLC, No. 11-cv-7060, 2014 WL 5487670, at 

*2 (N.D. Ill. Oct. 30, 2014); Saravia v. 2799 Broadway Grocery 

LLC, No. 12-cv-7310, 2014 WL 2011720, at *3 (S.D.N.Y. May 16, 

2014). 

The District’s arguments that certain class members have given 

up their Takings Clause claim by consenting to judgment in a 

Superior Court foreclosure action or abandoning their property 

such that they may not bring a Takings Clause claim, and that 

res judicata bars the claims of another are precisely the types 

of merits arguments that ultimately have no bearing on 

numerosity. Membership in the classes is not contingent upon any 

of these factors. They do not bear, for example, on whether 

individuals proffered as potential class members ever owned 

property in D.C., had a tax-lien sold pursuant to the relevant 

provision of the D.C. Code, or had their title taken in full. 

Rather, those arguments seek to show that the individuals’ 
21 

claims will ultimately fail for lack of injury—whether due to 

consent to that injury, loss of the property interest that was 

allegedly injured, or failure to vindicate that injury in a 

prior proceeding in which it was required to be raised.4 But 

“[h]ow many (if any) of the class members have a valid claim is 

the issue to be determined after the class is certified.” Parko, 

739 F.3d at 1085; see also Arnold Chapman & Paldo Sign & Display 

Co. v. Wagener Equities, Inc., 747 F.3d 489, 492 (7th Cir. 2014) 

(noting that those who ultimately do not have a valid claim 

 

4 During oral argument, the District maintained that its 

arguments regarding abandonment and consent bear on whether a 

class member’s property “included equity above the amount of 

real estate taxes, interest, penalties, expenses and attorney’s 

fees at the time a tax deed was issued” as required by the class 

definition. See Mem. at 4. The argument is essentially that the 

alleged consent or abandonment destroyed any equity interest the 

individual may have had. This argument would appear to permit a 

court to address any defense—including the lack-of-standing 

defense rejected by the Seventh Circuit in Parko—on the theory 

that a successful defense would show that the class member 

suffered no injury. This would far exceed the case law cited by 

the District permitting courts to consider statute of 

limitations defenses or similar time-bar rules in assessing 

numerosity. See Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. 

Bd., 40 F.3d 698, 716 (5th Cir. 1994); Wetzel v. Liberty Mut. 

Ins. Co., 508 F.2d 239, 246–48 (3d Cir. 1975); Lanning v. S.E. 

Pa. Transp. Auth., 176 F.R.D. 132, 148 (E.D. Pa. 1997). As the 

plaintiffs noted at oral argument, such defenses may bear 

directly on membership in the class and do not involve the types 

of individualized and potentially fact-intensive decisions that 

the District’s abandonment and consent arguments might raise, 

and that the standing argument raised in Parko. Even if, as the 

District suggested, these inquiries would not be nearly as indepth as in Parko, they are nonetheless fact-based inquiries 

into the merits of a claim, not fact-based inquiries into the 

basis for class membership.
22 

“just wouldn’t be entitled to share in the damages awarded to 

the class by a judgment or settlement”). While the District’s 

arguments may, if successful, bar certain class members from 

obtaining relief, that does not remove those individuals from 

consideration as potential members of the putative class.5

The District’s citation to Szabo v. Bridgeport Machines, Inc., 

249 F.3d 672 (7th Cir. 2001) is not to the contrary. In Szabo, 

the Seventh Circuit rejected a district court’s decision 

granting class certification where “the judge assumed that 

whatever [the plaintiff] alleges must be true.” Id. at 674. This 

approach was improper, the Seventh Circuit held, offering the 

following as an example: 

Before deciding whether to allow a case to proceed as a 

class action, therefore, a judge should make whatever 

factual and legal inquiries are necessary under Rule 23. 

This would be plain enough if, for example, the plaintiff 

alleged that the class had 10,000 members, making it too 

numerous to allow joinder, while the defendant insisted 

that the class contained only 10 members. A judge would 

not and could not accept the plaintiff’s assertion as 

conclusive; instead the judge would receive evidence . 

. . and resolve the disputes before deciding whether to 

certify the class. 

Id. at 676. Szabo stands for the uncontroversial proposition 

that the Court must consider merits issues and resolve fact 

 

5 The existence of such defenses could theoretically affect the 

analysis under other parts of Rule 23, but the District did not 

raise these arguments and indeed sought to downplay the extent 

to which these defenses would require in-depth individualized 

proof. 
23 

disputes where relevant to Rule 23 (i.e. to determine how many 

individuals exist that meet the class definition). See 

Schleicher v. Wendt, 618 F.3d 679, 685 (7th Cir. 2010) 

(“Although we concluded in Szabo . . . that a court may take a 

peek at the merits before certifying a class, Szabo insisted 

that this peek be limited to those aspects of the merits that 

affect the decisions essential under Rule 23”). 

The sole argument raised by the District that bears on any 

individual’s membership in the classes is that some potential 

class members did not have equity in their property in excess of 

the amount of taxes, interest, and additional fees owed. See 

Opp. at 4–22.6 The claim that certain potential class members did 

not have excess equity, if true, would exclude those class 

 

6 The District raised briefly the claim that certain putative 

class members own unimproved lots of land rather than 

residential property. See Def.’s Suppl. Br., ECF No. 36 at 4 

n.3. During oral argument, the plaintiffs argued that the lots 

at issue are themselves residential. Plaintiffs confirmed this 

in a post-hearing filing, which demonstrates that all lots at 

issue are zoned residential. See Pls.’ Post-Hearing Br., ECF No. 

37. The Court therefore considers the owners of these lots to be 

“residential property owners” as relevant to the class 

definition. 

The District also argued that one potential class member, 

Elizabeth Neal, is “not entitled to any equity [her] property 

may have had” by virtue of her estate’s debt to the D.C. 

Department of Health. Opp. at 18–19. This debt, however, would 

not deprive Ms. Neal’s estate of the ability to recover; to the 

extent she prevails and obtains damages, she may “recover the 

surplus equity and deal separately with the Department of Health 

to resolve that obligation.” Reply at 10.
24 

members from the class definition. Plaintiffs respond that the 

figures the District uses to assess the market value of those 

individuals’ properties—and thereby to obtain the amount of 

equity—are improper measures and that a more appropriate 

appraisal demonstrates that the equity was much higher. See 

Reply at 7–10. Plaintiffs, moreover, have proffered appraisals 

that show just that. See Ex. A to Pls.’ Mot., ECF No. 31-2. The 

Court finds that resolving any dispute over which appraisal 

method to use is unnecessary at this stage. Doing so would 

arguably seek a merits determination akin to that rejected by 

the Seventh Circuit in Parko. See 739 F.3d at 1085. The Court’s 

role at this stage, moreover, is not to decide which of 

competing appraisal methods is appropriate; rather, the Court 

asks whether the plaintiffs have provided an evidentiary basis 

for the approximate number of potential class members whose 

existence they allege. See Pigford, 182 F.R.D. at 347. The 

plaintiffs’ proffer of a valuation method that renders at least 

34 putative class members in a position with excess equity is 

sufficient at this stage to justify the proposed numerosity 

finding. Finally, only 4 of the 34 putative class members are 

subject to the District’s argument regarding excess equity. See 

Opp. at 7, 11, 13, 16–17, 19 (listing seven of plaintiffs’ 

original forty class members as not having excess equity); Reply 

at 8–10 (counting only four of those seven to arrive at the 
25 

thirty-four member figure). Even if those 4 were removed and the 

Court were considering a class of 30 members, the Court would 

find that joinder was similarly impracticable for the reasons 

stated in Part III.B.1.b., infra. 

b. The Class’s Unique Vulnerability Makes Joinder 

Significantly More Difficult. 

With roughly 34 potential members, plaintiffs’ proposed 

classes are close to the range where joinder is presumed to be 

impracticable. To the extent that 40 members has become a 

precise cutoff, plaintiffs would find themselves at the high end 

of numerosity’s gray area—where joinder is neither presumptively 

impracticable nor presumptively practical. Additional factors 

demonstrate strongly that joinder is impracticable. 

The additional factors that courts consider in assessing the 

practicability of joinder include: (1) “judicial economy arising 

from avoidance of a multiplicity of actions”; (2) “geographic 

dispersion of class members”; (3) “size of individual claims”; 

(4) “financial resources of class members”; and (5) “the ability 

of claimants to institute individual suits.” Newberg on Class 

Actions § 3:12 (5th ed. 2014). Where the balance of these 

factors “is a close call, some courts err in favor of 

certification because a court always has the option to decertify 

the class if it is later found that the class does not in fact 

meet the numerosity requirement.” Id.; see also J.D. v. Nagin, 
26 

255 F.R.D. 406, 414 (E.D. La. 2009) (noting, in assessing 

whether joinder was impracticable for a class of juveniles 

incarcerated in a state facility who challenged the conditions 

of their detention, that “Rule 23(a) must be read liberally in 

the context of civil rights suits”). 

The factors that favor the District are the likelihood that 

the class is geographically concentrated in Washington, D.C., 

and the related ease of identifying class members by reference 

to the District’s records. To be sure, courts have held that 

small classes may be able to rely on joinder where class members 

are geographically concentrated and their identity is readily 

obtained from the defendant’s records. See, e.g., Gilchrist v. 

Bolger, 89 F.R.D. 402, 410 (S.D. Ga. 1981) (class of 21 to 24 

members). But these factors do not mandate a finding that 

joinder is practical, especially when the potential class is 

larger and other factors weigh strongly against such a finding. 

Nor is this class similar to the class of twenty-eight at issue 

when the D.C. Circuit affirmed the denial of class certification 

in Frazier v. Consol. Rail Corp., 851 F.2d 1447 (D.C. Cir. 

1988). Although Frazier discussed geographic concentration and 

the ease of identifying class members as factors counseling 

against finding that joinder would be impracticable, the D.C. 

Circuit emphasized that certification of classes below forty 

members “is best left to the sound discretion of the district 
27 

court” and requires “an examination by the district court of the 

facts of each case.” Id. at 1456 & n.10. The facts of this case 

render this class of approximately thirty-four much more 

difficult to join. 

First, the vulnerability of many members of the class renders 

their claims uniquely unsuited for individual prosecution. Rule 

23, in permitting the aggregation of claims, embodies a 

“principle of protection for weaker plaintiffs.” Primavera 

Familienstiftung v. Askin, 178 F.R.D. 405, 411 (S.D.N.Y. 1998). 

In keeping with this principle, courts recognize that joinder is 

significantly more difficult when class members “are . . . 

economically disadvantaged, making individual suits difficult to 

pursue.” Robidoux, 987 F.2d at 936. In such situations, a 

putative class action may present “an example of the ‘economic 

reality that petitioner’s suit must proceed as a class action or 

not at all.’” D.L. v. District of Columbia, 302 F.R.D. 1, 11 

(D.D.C. 2013) (quoting Eisen v. Carlisle & Jacquelin, 317 U.S. 

156, 161 (1974)) (alterations omitted); see also McDonald v. 

Heckler, 612 F. Supp. 293, 300 (D. Mass. 1985) (“These 

individuals claim to be disabled and of low income. It is 

therefore impracticable for these persons to bring individual 

lawsuits challenging the Secretary’s policies.”); cf. Primavera, 

178 F.R.D. at 411 (finding that joinder was practical in class 

of “38 to 40 potential plaintiffs” in part because the class 
28 

members were all “sophisticated investors, with sufficient 

financial resources to protect their own interest,” the majority 

of whom had “invested well over $1 million”). Similar concerns 

arise when other characteristics render class members 

vulnerable. See, e.g., D.L., 302 F.R.D. at 11 (class action 

under the Individuals with Disabilities in Education Act, which 

“ensures a free and appropriate education to the District’s 

youngest and most vulnerable pupils”); Sherman v. Griepentrog, 

775 F. Supp. 1383, 1389 (D. Nev. 1991) (relying in part on the 

fact that class members were largely “poor and elderly or 

disabled individuals”); Rodriguez ex rel. Rodriguez v. 

Berrybrook Farms, Inc., 672 F. Supp. 1009, 1014 (W.D. Mich. 

1987) (considering the “lack of formal education, English 

language skills, and knowledge of the legal system” of potential 

class members). 

The members of the proposed classes in this case are, by 

definition, uniquely vulnerable. To be a class member, an 

individual must have failed to pay property taxes and failed to 

redeem her property during foreclosure proceedings in the 

Superior Court of the District of Columbia. As Mr. Coleman’s and 

Ms. Robinson’s stories demonstrate, some individuals may have 

found themselves in this situation due to unique 

vulnerabilities. Mr. Coleman ended up as a class member because 

he “forgot to pay a $134 real property tax bill,” was “at the 
29 

time of foreclosure[,] suffer[ing] from dementia,” and “was 

incapable of protecting his rights or managing his financial and 

legal affairs.” First Am. Compl., ECF No. 30 ¶¶ 10–11. 

Similarly, “Ms. Robinson was living in a senior care facility 

when the tax lien was assessed against her home and later died 

shortly before” foreclosure proceedings began. See id. ¶ 10. The 

failure of other class members to pay their property taxes or 

engage in proceedings in Superior Court similarly indicates a 

financial vulnerability to the extent that class members were 

financially unable to meet their property-tax obligations or to 

pay the interest, penalties, and fines that were added on top of 

the tax obligation. It may also reflect difficulty in managing 

the class member’s own affairs. Each of these vulnerabilities is 

a factor counseling in favor of finding that joinder is 

impracticable. 

Nor is the Court barred from inferring that class members are 

likely vulnerable. Although the Court may not merely adopt as 

true a class representatives’ factual allegations, Wal-Mart, 131 

S. Ct. at 2551, courts discussing a class’s vulnerability 

regularly make inferences that flow logically from the class 

definition. See, e.g., McDonald, 612 F. Supp. at 300 (in class 

action challenging Social Security Administration policies “used 

to deny disability benefits to claimants on the grounds that 

their impairments are not severe,” the Court inferred from the 
30 

class definition of those whose benefits claims were denied “on 

the grounds that they do not have a severe impairment,” that 

“[t]hese individuals claim to be disabled and of low income” and 

concluded that “[i]t is therefore impracticable for these 

persons to bring individual lawsuits”); D.L., 302 F.R.D. at 11 

(in class seeking certification of claims under the Individuals 

with Disabilities in Education Act, the Court noted “[t]he IDEA 

ensures a free and appropriate education to the district’s 

youngest and most vulnerable pupils, many of whom are indigent 

and unable to obtain legal services . . . . This litigation is 

thus an example of the economic reality that [the] suit must 

proceed as a class action or not at all”) (quotation marks and 

alterations omitted). It is similarly commonplace to “draw 

reasonable inferences from the facts presented to find the 

requisite numerosity.” McCuin, 817 F.2d at 167. 

The Court’s inferences regarding the unique vulnerability of 

the class are similarly derived from the class definition, as 

well as the facts proffered by the plaintiffs supporting the 

existence and status of each of the thirty-four potential class 

members. See Exs. A–C to Pls.’ Mot., ECF Nos. 31-2, 31-3, 31-4. 

Both the class definition and these specific facts regarding the 

class members demonstrate that class members, by definition and 

in fact, failed to pay property taxes, had equity that exceeded 

the amount they owed, and failed to redeem their property in 
31 

Superior Court or otherwise reach an arrangement under which 

they could extract the excess equity that they owned. It is 

reasonable to infer that one with the financial ability to pay 

the taxes or fees would pay them (after all, the equity to be 

saved exceeds the taxes and fees to be paid), unless the excess 

equity was minimal. Even one without the financial ability to 

pay in cash could, for example, borrow against that equity to 

obtain the amount of cash needed to pay the taxes and costs. An 

individual who is a potential class member, by definition, did 

not do these things to defend her interest. It is therefore 

reasonable to infer that some class members, if not many, lack 

the financial resources to prosecute their claims individually, 

the ability to manage their legal affairs, or both. 

Not only is joinder impracticable due to these unique 

vulnerabilities, but joinder would also serve judicial economy 

by permitting the adjudication of the class’s claims in one 

case. Where a putative class seeks damages that “flow from the 

resolution of a single question,” considerations of judicial 

economy may strongly favor addressing the question at once. 

Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56-57 (N.D. Ill. 1996) 

(class of eighteen potential members); see also, e.g., Odom v. 

Hazen Transport, Inc., 275 F.R.D. 400, 407 (W.D.N.Y. 2011) 

(class of sixteen individuals). The claims in this case are 
32 

largely identical, making it economical to resolve them at once. 

See Part III.C.2.a, infra. 

2. Commonality 

Next, plaintiffs must establish that “there are questions of 

law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). 

Commonality is not satisfied solely because all plaintiffs 

suffered “a violation of the same provision of law.” Wal-Mart, 

131 S. Ct. at 2551. The touchstone of the commonality inquiry is 

“the capacity of a classwide proceeding to generate common 

answers apt to drive the resolution of the litigation.” Id. 

(quotation marks omitted; emphasis in original). Depending upon 

the circumstances, this may involve many common issues that 

together provide a resolution, but “even a single common 

question will do.” Id. at 2556 (quotation marks and alterations 

omitted). 

A class may satisfy the commonality requirement even if 

factual distinctions exist among the claims of putative class 

members. The question is “whether dissimilarities between the 

claims may impede a common resolution.” Wright & Miller, Federal 

Practice & Procedure § 1763 (3d ed. 2014). This is less likely 

to occur where, as here, the class challenges a generally 

applicable policy or practice. See, e.g., Wal-Mart, 131 S. Ct. 

at 2553–54 (noting that a plaintiff could maintain a Title VII 

class action by challenging a “biased testing procedure”); 
33 

Thorpe v. District of Columbia, 303 F.R.D. 120, 145 (D.D.C. 

2014) (“Where plaintiffs allege widespread wrongdoing by a 

defendant, a uniform policy or practice that affects all class 

members bridges the gap”) (quotation marks and alterations 

omitted). Ultimately, “[w]hen the party opposing the class has 

engaged in some course of conduct that affects a group of 

persons and gives rise to a cause of action, one or more of the 

elements of that cause of action will be common to all of the 

persons affected.” Newberg on Class Actions § 3:20 (5th ed. 

2014). 

Plaintiffs argue that their claims are susceptible to class 

treatment because the entire class brings the same legal claim 

regarding the same D.C. Code provision. See Mem. at 13–15. 

Plaintiffs’ legal claims against that provision, moreover, boil 

down to a series of common legal questions, as this Court noted 

in its Opinion denying the District’s motion to dismiss: 

This Court draws two clear principles from the Supreme 

Court’s decisions in Lawton and Nelson. Nelson makes 

clear that a Takings Clause violation regarding the 

retention of equity will not arise when a tax-sale 

statute provides an avenue for recovery of the surplus 

equity. Lawton makes clear that a Takings Clause 

violation will arise when a tax-sale statute grants a 

former owner an independent property interest in the 

surplus equity and the government fails to return that 

surplus. The question Mr. Coleman’s case presents is: 

What if the tax-sale statute does not provide a right to 

the surplus and the statute provides no avenue for 

recovery of any surplus? A property interest in equity 

could conceivably be created by some other legal source. 

In that circumstance, failure to provide an avenue for 
34 

recovery of the equity would appear to produce a result 

identical to Lawton: Property to which an individual is 

legally entitled has been taken without recourse. The 

issue, then, is whether Mr. Coleman has a property 

interest in his equity and, if so, whether an 

unconstitutional taking of that property has been 

alleged. 

Coleman, 2014 WL 4819092, at *17. 

Plaintiffs therefore raise common legal questions regarding 

whether D.C. law creates a property interest in equity; whether 

the District’s tax-sale statutes effect a “taking” of that 

property; whether any such taking was done without public 

purpose; and whether the plaintiffs were granted just 

compensation for any such taking. See Mem. at 14. These legal 

questions, moreover, are susceptible to class-wide answers 

because their resolution does not depend upon the particular 

circumstances of any individual’s loss: “All putative plaintiffs 

are advancing the same legal theory based on the same set of 

facts and the same course of conduct by the District.” Hardy v. 

District of Columbia, 283 F.R.D. 20, 24 (D.D.C. 2012). For this 

reason, the classes raise common questions, the answers to which 

will significantly drive the resolution of this case. 

3. Typicality 

Plaintiffs must also demonstrate that “the claims or defenses 

of the representative parties are typical of the claims or 

defenses of the class.” Fed. R. Civ. P. 23(a)(3). The typicality 

requirement is concerned with whether “the named plaintiffs are 
35 

appropriate representatives of the class whose claims they wish 

to litigate.” Wal-Mart, 131 S. Ct. at 2550. A class 

representative satisfies the typicality requirement if the 

representative’s “claims are based on the same legal theory as 

the claims of the other class members” and her “injuries arise 

from the same course of conduct that gives rise to the other 

class members’ claims.” Bynum, 214 F.R.D. at 35. “Put another 

way, a representative’s claims are typical of those of the class 

when ‘[t]he plaintiffs allege that their injuries derive from a 

unitary course of conduct by a single system.’” Artis, 2014 WL 

4801783, at *12 (quoting Marisol A. v. Giuliani, 126 F.3d 372, 

377 (2d Cir. 1997)). 

As discussed above, the plaintiffs’ claims all arise from a 

common statutory background and raise identical legal questions. 

See supra Part III.B.2. Accordingly, “the interests of the named 

plaintiffs and the proposed class members are aligned because 

all plaintiffs would assert the same legal claim, a taking in 

contravention of the Fifth Amendment, arising out of the same 

government actions.” Geneva Rock Prods., Inc. v. United States, 

100 Fed. Cl. 778, 790 (2011) (quotation marks omitted). 

Although class members may ultimately be entitled to differing 

amounts of damages, this variance is not fatal to typicality, 

which “may be satisfied even though . . . there is a disparity 

in the damages claimed by the representative parties and the 
36 

other class members.” Wright & Miller, Federal Practice & 

Procedure § 1764 (3d ed. 2014); see also Newberg on Class 

Actions § 3:43 (5th ed. 2014) (“Courts routinely find that the 

proposed class representative’s claims are typical even if the 

amount of damages sought differ from those of the class or if 

there are differences among class members in the amount of 

damages each is claiming”). “Rule 23 contains no suggestion that 

the necessity for individual damage determinations destroys . . 

. typicality.” Gunnells v. Healthplan Servs., 348 F.3d 417, 427–

28 (4th Cir. 2003). Accordingly, courts certify classes whose 

damages claims, for example “may be determined by examining the 

same electronic databases.” Ramos v. SimplexGrinnell LP, 796 F. 

Supp. 2d 346, 357 (E.D.N.Y. 2011), vacated in part on other 

grounds, 773 F.3d 394 (2d Cir. 2014). Damages would be similarly 

discernible here. See infra Part III.C.2.a. 

Nor do there appear to be any unique defenses to the claims of 

either named plaintiff that might destroy typicality. Such 

defenses are found only in narrow circumstances: “The critical 

question for the Court is not whether these defenses are legally 

viable, but rather, assuming they are supportable, whether they 

would ‘skew the focus of the litigation and create a danger that 

absent class members will suffer because their representative is 

preoccupied with defenses unique to it.’” Thorpe, 303 F.R.D. at 

149-50 (quoting Meijer, Inc. v. Warner Chilcott Holdings Co. 
37 

III, 246 F.R.D. 293, 302 (D.D.C. 2007)) (alteration omitted). 

Although the District has alluded to a potential statute of 

limitations defense to Mr. Coleman’s claims, there appears to be 

no such defense to the claims of Ms. Robinson’s estate. In any 

event, statute-of-limitations defenses are unlikely to skew the 

focus of litigation. See, e.g., Sykes v. Mel Harris & Assocs., 

285 F.R.D. 279, 292 (S.D.N.Y. 2012) (statute-of-limitations 

defense applicable to some named plaintiffs did not “threaten to 

become the focus of the litigation”). Similarly, the District’s 

abandonment, consent-to-judgment, and res judicata arguments—

which it raised only in connection with the numerosity factor—

are relatively small issues, and the Court has no reason to 

believe that they will become the focus of litigation to the 

detriment of the claims of other class members or that they 

would be ignored if they are not raised against the named 

plaintiffs. Accordingly, Mr. Coleman and Ms. Robinson’s Estate 

have claims that are typical of those of the class they seek to 

represent. 

4. Adequate Representation 

The final requirement of Rule 23(a) is that “the 

representative parties will fairly and adequately protect the 

interests of the class.” This ensures that “the named 

representative must not have antagonistic or conflicting 

interests with the unnamed members of the class,” and “the 
38 

representative must appear able to vigorously prosecute the 

interests of the class through qualified counsel.” Twelve John 

Does v. District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997) 

(quotation marks omitted). The proposed class representatives 

are capable of “fairly and adequately protect[ing] the interests 

of the class.” Fed. R. Civ. P. 23(a)(4). Plaintiffs seek 

identical relief for all class members, so there are no 

conflicting interests that might derail certification on this 

prong. The District, moreover, does not challenge, and there is 

no reason to doubt, that the proposed class representatives are 

able to prosecute the interests of the class through the counsel 

they have chosen, who have extensive experience with classaction litigation. See id. at 17. 

C. Rule 23(b) 

Having demonstrated that their proposed classes satisfy the 

threshold requirements of Rule 23(a), plaintiffs must also show 

that each class can be maintained as one of three types of class 

actions listed in Rule 23(b). Plaintiffs seek to bring the 

Declaratory Relief Class under Rule 23(b)(2), and the Damages 

Class under Rule 23(b)(3). 

1. The Declaratory Relief Class May Be Certified 

Pursuant to Rule 23(b)(2) 

A (b)(2) class may be certified where “the party opposing the 

class has acted or refused to act on grounds that apply 
39 

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). “The 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.” Wal-Mart, 131 S. Ct. 

at 2557 (quotation marks omitted). 

To determine whether the District has treated the class on 

generally applicable grounds, “[t]he key is whether the party’s 

actions would affect all persons similarly situated so that 

those acts apply generally to the whole class.” Wright & Miller, 

Federal Practice & Procedure § 1775 (3d ed. 2014). The District 

has not opposed plaintiffs’ allegations that they meet this 

standard. Plaintiffs challenge the District’s admitted practice—

codified in the D.C. Code—of selling the right to foreclose 

entirely on a property owner’s right of redemption and thereby 

to take the entirety of the property owner’s equity. This legal 

provision affected all class members in the same way. 

The second requirement of Rule 23(b)(2) is that plaintiffs 

seek “final injunctive relief or corresponding declaratory 

relief . . . respecting the class as a whole.” Fed. R. Civ. P. 

23(b)(2). The District does not dispute that the declaratory 

relief sought by the class meets this criterion. Accordingly, 
40 

the Declaratory Relief Class may be certified under Rule 

23(b)(2). 

2. The Damages Class May Be Certified Pursuant to 

Rule 23(b)(3). 

A (b)(3) class may be certified where “the questions of law or 

fact common to class members predominate over any questions 

affecting only individual members” and “a class action is 

superior to other available methods for fairly and efficiently 

adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). These 

requirements are referred to respectively as “predominance and 

“superiority.” Barnes v. District of Columbia, 242 F.R.D. 113, 

123 (D.D.C. 2007). 

a. Predominance 

The predominance requirement “tests whether proposed classes 

are sufficiently cohesive to warrant adjudication by 

representation.” Amchem Prods. v. Windsor, 521 U.S. 591, 623 

(1997). This inquiry is similar to the commonality inquiry, but 

“[i]f anything . . . is even more demanding.” Comcast, 133 S. 

Ct. at 1432. “[T]he predominance analysis logically entails two 

distinct steps—the characterization step and the weighing step.” 

Newberg on Class Actions § 4:50 (5th ed. 2014). 

First, the court must “characterize the issues in the case as 

common or individual.” Id. (emphasis omitted). This 

determination is “primarily based on the nature of the 
41 

evidence.” Id. “Evidence is considered ‘common’ to the class if 

the same evidence can be used to prove an element of the cause 

of action for each member.” Kottaras v. Whole Foods Market, 

Inc., 281 F.R.D. 16, 22 (D.D.C. 2012). By contrast, evidence is 

individualized when “members of the proposed class would need to 

present evidence that varies from person to person.” Id.

Second, the Court must “compare the issues subject to common 

proof against the issues subject solely to individualized proof 

to assess whether the common issues predominate.” Newberg on 

Class Actions § 4:50 (5th ed. 2013). This comparison is “a 

qualitative rather than a quantitative concept.” Parko, 739 F.3d 

at 1085. “[T]he common issues do not have to be shown to be 

dispositive.” In re Vitamins Antitrust Litig., 209 F.R.D. 251, 

262 (D.D.C. 2002); see also Amgen, 133 S. Ct. at 1191 (“Rule 

23(b)(3) requires a showing that questions common to the class 

predominate, not that those questions will be answered, on the 

merits, in favor of the class.”) (emphasis in original). 

At the weighing step, the Court must keep in mind that “common 

liability issues are typically far more important and contested 

and the individual damage calculations often formulaic.” Newberg 

on Class Actions § 4:54 (5th ed. 2014); see also In re Nexium 

Antitrust Litig., 777 F.3d 9, 21 (1st Cir. 2015) (“Where common 

questions predominate regarding liability, then courts generally 

find the predominance requirement to be satisfied even if 
42 

individual damages issues remain.”) (quotation marks and 

alteration omitted). The D.C. Circuit has agreed “that the mere 

fact that damage awards will ultimately require individualized 

fact determinations is insufficient by itself to preclude class 

certification.” McCarthy v. Kleindienst, 741 F.2d 1406, 1415 

(D.C. Cir. 1984); see also Newberg on Class Actions § 4:54 (5th 

ed. 2014) (“courts in every circuit have uniformly held that the 

23(b)(3) predominance requirement is satisfied despite the need 

to make individualized damage determinations”).7

 

7 This general rule remains valid in the wake of the Supreme 

Court’s decision in Comcast, which involved a “straightforward 

application of class-certification principles” to hold that 

predominance may not be established unless the “model purporting 

to serve as evidence of damages . . . measure[s] only those 

damages attributable to” the plaintiff’s theory of liability. 

133 S. Ct. at 1433. Indeed, the Supreme Court had recognized 

only two years earlier that “individualized monetary claims 

belong in Rule 23(b)(3).” Wal-Mart, 131 S. Ct. at 2558. To read 

Comcast more broadly would not only be incorrect: 

It would drive a stake through the heart of the class 

action device, in cases in which damages were sought 

rather than an injunction or a declaratory judgment, to 

require that every member of the class have identical 

damages. If the issues of liability are genuinely common 

issues, and the damages of individual class members can 

be readily determined in individual hearings, in 

settlement negotiations, or by creation of subclasses, 

the fact that damages are not identical across all class 

members should not preclude class certification. 

Otherwise defendants would be able to escape liability 

for tortious harms of enormous aggregate magnitude but 

so widely distributed as not to be remediable in 

individual suits. 

Butler v. Sears, Roebuck & Co. 727 F.3d 796, 801 (7th Cir. 

2013); see also, e.g., Roach v. T.L. Cannon Corp., 778 F.3d 401, 
43 

As discussed, the plaintiffs raise common legal questions 

regarding their liability claims. See supra Part III.B.2. These 

common questions, which comprise nearly the entirety of the 

class’s liability claim, are themselves sufficient to support a 

finding that common issues predominate over individualized ones. 

The District argues only that the individualized nature of the 

calculation “of each class member’s property value at the time 

the tax deed was issued will require individual treatment.” Opp. 

at 24-25. This, the District claims, inserts an individualized 

issue not only into the calculation of the damages owed each 

class member, but also to the proof whether the class member 

“had equity in the property that could qualify as an alleged 

taking.” Id. at 25. Although the District is correct at the 

first step of the predominance analysis—that proof of the value 

of a particular class member’s property will be individualized—a 

number of factors render that issue a minor part of the 

otherwise strikingly common class claims, so the District’s 

argument must fail at the second step. 

 

405 (2d Cir. 2015) (Comcast did not displace the Second 

Circuit’s long-established rule that “the fact that damages may 

have to be ascertained on an individual basis is not sufficient 

to defeat class certification under Rule 23(b)(3)”) (quotation 

marks omitted); In re Deepwater Horizon, 739 F.3d 790, 815 (5th 

Cir. 2014) (Comcast “has no impact on cases . . . in which 

predominance was based not on common issues of damages but on 

the numerous common issues of liability”).
44 

First, the valuation issue may be provable by the District’s 

own existing property valuations, making it subject to efficient 

proof of a more common nature (i.e. proof based upon a 

preexisting record that was compiled pursuant to a common 

methodology). As the plaintiffs note, the District regularly 

assesses the value of properties within its borders in 

calculating property taxes. See Mem. at 20. These assessments 

provide a preexisting uniform source for the value of each 

property—the calculation of which the District contends is so 

individualized that class treatment is unwarranted. Indeed, the 

District’s Office of Tax and Revenue has made several assertions 

that support the utility of these figures as a proxy for market 

value.8 There is thus a common basis for potential resolution of 

 

8 The Office asserts that its assessments reflect “the estimated 

market value of your property,” which it defines as “the most 

probable price for which you can sell your property given normal 

terms and conditions of sale.” Real Property Assessments and 

Appeals FAQs, D.C. Office of Tax and Revenue, http://otr.cfo.dc. 

gov/page/real-property-assessments-and-appeals-faqs (last 

visited April 13, 2015). It also touts the “substantial 

improvements” it has made to the assessment process “to provide 

the most equitable and uniform assessments possible,” and claims 

that the Office prepares reports to “measure[] assessment 

quality by looking at the most recent assessment program and 

comparing the results of that effort to actual market 

conditions.” Real Property Assessment Process, D.C. Office of 

Tax and Revenue, http://otr.cfo.dc.gov/node/388692 (last visited 

April 13, 2015). The latest such report claims that “[t]he data 

show that the District has acceptable levels and uniformity of 

assessments” and that a comparison of assessments to real market 

sales prices demonstrated that “values determined by appraisers 

for the most recent valuation attained a uniform and appropriate 

level of value.” Real Property Tax Administration, D.C. Office 
45 

the valuation issue, without the need for any individualized 

proof beyond references to the District’s calculations. 

The District, in response, questions the validity and utility 

of its own appraisals. See Opp. at 25. Assuming without deciding 

that the District would prevail on this argument, the District 

offers no explanation of why conducting new appraisals would 

overwhelm the otherwise common issues in the case. Indeed, the 

District did not respond to the assertion in plaintiffs’ motion 

that “new appraisals could be conducted using common, standard 

appraisal methods across the class.” Mem. at 22. At least one 

court has certified a (b)(3) class despite the need for similar 

appraisals. See Turner v. Murphy Oil USA, Inc., 234 F.R.D. 597, 

607 n.5 (E.D. La. 2006) (class “presented evidence that certain 

elements of their alleged damages may be assessed on a classwide basis,” one of which was that “the properties at issue 

would be properly subject to mass appraisal to determine their 

present value”). Nor is it uncommon to certify a (b)(3) class 

despite the need for other types of individualized calculations, 

especially where the formula and method for conducting the 

calculation is itself common. See, e.g., Ward v. Dixie Nat’l 

Life Ins. Co., 595 F.3d 164, 169, 180 (4th Cir. 2010) (where 

 

of Tax and Revenue, FY 2015 Assessment Ratio Report 2, 8 (2015), 

available at http://otr.cfo.dc.gov/sites/default/files/ 

dc/sites/otr/publication/attachments/2015RPTASalesRatioReportFin

al.pdf (last visited April 13, 2015).
46 

liability issues were largely common, predominance was met even 

though damages were individualized because “the formula for 

damages was identical for all class members”); Ramos, 796 F. 

Supp. 2d at 359 (“True, the putative class members earned 

prevailing wages at different rates, some worked more hours than 

others, and some are electricians and others are sprinkler 

fitters. However, these differences do not predominate over the 

main issue: whether defendant systematically failed to pay its 

employees the prevailing wages due them.”). 

The predominance requirement is therefore met because the 

class challenges a “generalized practice,” the “central element 

of Plaintiffs’ theory of liability . . . is common to every 

class member,” and “even the minor differences between the class 

members—such as the amount of total damages—are susceptible to 

generalized proof since a common formula is used to calculate 

the individual damages.” Alvarez, 303 F.R.D. at 162. Even if the 

valuation issue were entirely individualized, “this single fact 

would not preclude a finding that common questions of law and 

fact predominate over individual questions.” Bynum, 214 F.R.D. 

at 39.9 Accordingly, even if the District is correct that its own 

 

9 Nor would any defense related to the statute of limitations 

prevent the class from meeting the predominance requirement. 

“Statute of limitations defenses . . . rarely defeat class 

certification.” Newberg on Class Actions § 4:57 (5th ed. 2014); 

see also Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 924 

(3d Cir. 1992) (“Courts have been nearly unanimous . . . in 
47 

appraisals should not be used, the common liability and damages 

issues will predominate over the single individualized issue of 

calculating appraisals for each class member’s property pursuant 

to a common calculation method. 

b. Superiority 

The superiority requirement is intended to “ensure[] that 

resolution by class action will ‘achieve economies of time, 

effort, and expense and promote . . . uniformity of decision as 

to persons similarly situated, without sacrificing procedural 

fairness or bringing about other undesirable consequences.” 

Vista Healthplan, Inc. v. Warner Holdings Co., 246 F.R.D. 349, 

359–60 (D.D.C. 2007) (quoting Amchem, 521 U.S. at 615) 

(alteration in original). The Rule directs the Court to 

 

holding that possible differences in the application of a 

statute of limitations to individual class members, including 

the named plaintiffs, does not preclude certification of a class 

action”) (quotation marks omitted). This is so because even when 

they are individualized, “courts deem that these concerns can be 

resolved during the damage phase of the case and need not 

preclude certification of liability issues.” Newberg on Class 

Actions § 4:57 (5th ed. 2014); see also Waste Mgmt. Holdings v. 

Mowbray, 208 F.3d 288, 296 (1st Cir. 2000) (“As long as a 

sufficient constellation of common issues binds class members 

together, variations in the sources and application of statutes 

of limitations will not automatically foreclose class 

certification under Rule 23(b)(3).”). To the extent the District 

raises such a defense as to the claims of some class members, 

that defense can be adjudicated separately during the damages 

phase of this case. For similar reasons, the potential 

abandonment, consent-to-judgment, and res judicata defenses—

raised by the District only in connection with the numerosity 

analysis—form minor issues that would not upset the predominance 

of common liability issues.
48 

consider, in analyzing the alternatives to class-action 

treatment, the following factors: “the class members’ interests 

in individually controlling the prosecution or defense of 

separate actions; the extent and nature of any litigation 

concerning the controversy already begun by or against class 

members; the desirability or undesirability of concentrating the 

litigation of the claims in the particular forum; and the likely 

difficulties in managing a class action.” Fed. R. Civ. P. 

23(b)(3). Although the District’s opposition to the motion for 

class certification stated that “several pertinent factors 

indicate that class certification is not superior,” it did not 

enumerate these factors or otherwise address the superiority 

issue. See Opp. at 24-25. 

A class action is superior when it “may forestall an 

inefficient and uneconomical flood of individual lawsuits and/or 

prevent inconsistent outcomes in like cases.” Newberg on Class 

Actions § 4:67 (5th ed. 2014). This is an especially powerful 

concern when, as here, common issues predominate strongly. “If 

there are genuinely common issues, issues identical across all 

the claimants, issues moreover the accuracy of the resolution of 

which is unlikely to be enhanced by repeated proceedings, then 

it makes good sense, especially when the class is large, to 

resolve those issues in one fell swoop.” Mejdrech v. Met-Coil 

Systems Corp., 319 F.3d 910, 911 (7th Cir. 2003). In these 
49 

situations, it is reasonable to assume that “the class members’ 

interests in individually controlling the prosecution or defense 

of separate actions” are limited because their “claims may be so 

closely related to the claims of others that litigation by 

others will achieve their ends without the need for their 

involvement.” Newberg on Class Actions § 4:69 (5th ed. 2014). 

Superiority is also often found when use of the class action 

device would “enable[] ‘vindication of the rights of groups of 

people who individually would be without effective strength to 

bring their opponents into court at all.’” Id. § 4:65 (quoting 

Amchem, 521 U.S. at 617). In such circumstances, “[m]ultiple 

lawsuits would be costly and inefficient, and the exclusion of 

class members who cannot afford separate representation would be 

neither fair nor an adjudication of their claims.” In re Auction 

Houses Antitrust Litig., 193 F.R.D. 162, 168 (S.D.N.Y. 2000) 

(quotation marks omitted). 

Essentially every liability issue in this case is common, with 

the exception of the valuation of individual properties. See 

supra Part III.C.2.a. The 34 class members in this case, by 

definition, have less financial resources, a lesser ability to 

manage their legal affairs, or both, than the average citizen. 

See supra Part III.B.1.b. In the absence of a class action, 

then, class members are less likely to be able to prosecute 

separate actions, and if they were to do so, would face 
50 

inefficient resolution of 34 disputes that are largely identical 

to the disputes presented by Mr. Coleman and Ms. Robinson’s 

Estate. Accordingly, this case is a prime candidate for the use 

of a (b)(3) class to handle more efficiently all common claims. 

The other factors enumerated in Rule 23(b)(3) do not weigh 

heavily against the use of a class action. The parties have 

alerted the Court to no other litigation regarding this subject 

matter.10 If anything, the desirability of concentrating the 

litigation in a particular forum counsels in favor of a class 

action, because the relevant actions necessarily occurred in the 

District and the defendant is located here. Nor is there any 

risk that the classes will be particularly unmanageable, given 

the extent to which class members raise common issues. 

IV. Conclusion 

For the foregoing reasons, the Court hereby GRANTS plaintiffs’ 

motion for class certification. An appropriate Order accompanies 

this Memorandum Opinion. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 April 13, 2015 

 

10 That others may be litigating cases against the private entity 

that bought their tax lien and ultimately instituted the 

foreclosure does not bear on this question, which asks whether 

there is other litigation regarding the issue raised in this 

case—a Takings Clause claim against the District of Columbia for 

the taking of excess equity.