1

The Honorable Raymond C. Clevenger, III, Judge of the United States Court

of Appeals for the Federal Circuit, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-2314

___________

Maureen Rattray; Lisa Lambert; *

Lori Mathes, *

*

Appellants, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa. 

Woodbury County, IA; Glenn J. Parrett, *

Individually and as Sheriff of *

Woodbury County; Robert E. Aspleaf, *

individually and as Assistant Chief/ *

Deputy of Woodbury County, *

*

Appellees. * 

___________

Submitted: June 15, 2010

Filed: August 5, 2010

___________

Before RILEY, Chief Judge, CLEVENGER,1

 and COLLOTON, Circuit Judges.

___________

COLLOTON, Circuit Judge.

Maureen Rattray filed a lawsuit against Woodbury County, Iowa (“the

County”), alleging that she was strip searched illegally as part of the booking process
2

The Honorable Mark W. Bennett, United States District Judge for the Northern

District of Iowa. 

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at the Woodbury County Jail. Rattray subsequently moved to certify a class action.

The district court2

 denied Rattray’s motion, ruling that Rattray failed to convince the

court that she would adequately represent the interests of the class, as required by

Federal Rule of Civil Procedure 23(a)(4), and that she did not satisfy any of the

prerequisites of Federal Rule of Civil Procedure 23(b) for maintenance of a class

action. Rattray brought this interlocutory appeal, and we affirm.

I.

On February 13, 2007, Rattray filed a complaint against the County and made

the following factual allegations. At around 2:05 a.m. on August 19, 2006, Sioux City

police officers arrested Rattray for first-offense driving under the influence, which is

a serious misdemeanor in Iowa punishable by a minimum of forty-eight hours in jail.

Iowa Code § 321J.2. The officers took Rattray to the Woodbury County Jail for

booking. Before placing Rattray in a holding cell, two female jailers ordered Rattray

to remove her clothes for a strip search, and Rattray complied. The jailers performed

a cavity search of Rattray’s vaginal and genital area. While still naked, Rattray was

escorted to a holding cell. Inside the holding cell, the jailers performed a second

cavity search before permitting Rattray to dress in a jail uniform. 

Rattray’s initial complaint alleged that the strip search and cavity search were

conducted without reasonable suspicion to believe that she possessed a weapon or

contraband, and thus constituted a violation of her Fourth Amendment right against

unreasonable searches. In addition, paragraph 40 of the complaint asserted that “[t]he

Woodbury County Sherriff’s [sic] Department’s policy, regulation, official decision,

custom, or usage for strip/cavity searching those arrested for offenses other than

scheduled violations (code section) or simple misdemeanors is that arrestees can be
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and are strip/cavity searched, as was [Rattray,] without at least a reasonable suspicion”

that the arrestee possessed a weapon or contraband. Paragraph 41 continued that the

County “thus has a policy, regulation, official decision, custom, or usage for those

arrested for anything other than a scheduled violation (code citation) or simple

misdemeanor that violates such arrestees’ fourth amendment rights.” 

On October 15, 2007, Rattray moved for leave to amend her complaint to assert

a class action. Rattray asserted in the motion that she had learned through discovery

in August 2007 that the County had a policy requiring strip searches for all arrestees

who were accused of a serious misdemeanor. Under the policy, the existence of which

the County admitted, an individual arrested for a serious misdemeanor was strip

searched without regard to whether jailers reasonably suspected that the arrestee

possessed a weapon or contraband. Rattray sought to represent a class of “[a]ll

persons arrested for a serious misdemeanor and strip searched pursuant to defendant

jail’s across-the-board strip search policy.” On October 31, a magistrate judge granted

Rattray’s motion for leave to amend, ruling that Rattray had shown good cause for not

amending her complaint as a matter of right within the time limits of Federal Rule of

Civil Procedure 15(a).

Rattray filed her amended complaint on October 31. The new complaint added

factual allegations that pertained to the proposed class, and asserted that the claims of

the potential class members “are all based on a single, unwritten, across-the-board

strip search policy.” Rattray sought damages on behalf of the class, attorneys’ fees,

interest and costs, and other relief deemed appropriate. The amended complaint also

requested declaratory and injunctive relief that would prohibit the County from strip

searching, without reasonable suspicion, arrestees booked into the jail.

On April 28, 2008, nearly six months after filing her amended complaint,

Rattray moved to certify the class. Rattray’s brief in support of her motion alleged

that the proposed class consisted of an estimated 1757 individuals arrested on serious
3

After moving to certify a class, Rattray consolidated her case with those of Lisa

Lambert and Lori Mathes, who also alleged that they were strip searched at the

Woodbury County Jail after arrests for serious misdemeanors. She also added

Woodbury County Sheriff Glenn Parrett and Assistant Chief/Deputy Robert Aspleaf

as defendants.

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misdemeanor charges from February 13, 2005, to October 15, 2007, the date on which

the County discontinued the strip search requirement for arrestees accused of serious

misdemeanors. Rattray asserted that the class action could be brought under Federal

Rule of Civil Procedure 23(b)(3), which allows certification when common questions

of law or fact “predominate” over individual questions and a class action is “superior”

to other methods of adjudicating the controversy, or under Rule 23(b)(1)(A), which

permits certification when actions by individual class members create the risk of

“inconsistent or varying adjudications” that would establish “incompatible standards

of conduct” for the defendant.3

 

The County resisted the motion to certify. The County challenged Rattray’s

assertion that she did not move for class certification earlier because she did not learn

of the blanket strip search policy until discovery. Paragraph 40 of Rattray’s initial

complaint, according to the County, showed that Rattray was aware of the policy

when she filed the complaint. While not questioning the capabilities of Rattray’s

counsel, the County argued that the delay in moving for class certification suggested

that Rattray did not meet Rule 23(a)(4)’s requirement that the class representative

would “fairly and adequately protect the interests of the class.”

The County also contended that the class action could not be maintained under

Rule 23(b)(3), because with respect to each member of the class, the court would be

required to determine whether jailers had an objective basis for reasonable suspicion

to support the strip search. The County argued that the question whether jailers had

an objective basis for reasonable suspicion was specific to the facts of each case. In

the County’s view, the adjudication of an individual class member’s claim would not
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affect any other individual claim, and thus certification under Rule 23(b)(1) also

would be inappropriate.

The district court denied Rattray’s motion to certify the class. Rattray v.

Woodbury County, 253 F.R.D. 444 (N.D. Iowa 2008). The court determined that

Rattray met the requirements of Rule 23(a)(1) through (3), but it was “not convinced”

that Rattray would adequately represent the class, as required by Rule 23(a)(4). Id.

at 457. In light of paragraph 40 of the initial complaint, the court found Rattray’s

claim “that she only recognized the potential for class litigation in August 2007 [to be]

seriously suspect,” suggesting that Rattray could have filed a complaint on behalf of

the class well before October 2007. Id. at 456. But “even more disturbing,” the court

believed, was that nearly six months elapsed between the filing of the amended

complaint and the filing of the motion to certify the class action in April 2008. Id.

While opining that Rattray’s attorneys were “otherwise very capable and

experienced,” the court concluded that the course of litigation to that point evinced

Rattray’s “apparent lack of zeal to represent a class,” and the inexperience of Rattray’s

counsel in class action litigation. Id. at 456-57.

The district court then assumed for the sake of argument that Rattray satisfied

Rule 23(a)(4), and proceeded to consider whether the class action could have been

brought under one of the subsections of Rule 23(b). With respect to Rule 23(b)(3),

the court rejected Rattray’s argument that because class members were strip searched

pursuant to the blanket jail policy, common questions predominated over individual

ones. The court concluded that the predominant question was whether reasonable

suspicion existed to justify strip searches of putative class members, and that the timeconsuming review of each class member’s arrest and jail records would “dwarf[] every

other issue” in the case. Id. at 462-63. For the same reason, the district court ruled

that a class action was not superior to other methods of adjudicating the dispute. Id.

at 464-65. As to Rule 23(b)(1)(A), the court cited Rattray’s concession in her

certification motion that there was little risk of inconsistent judgments, and therefore
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rejected Rattray’s argument that certification was proper under this subsection. Id. at

458-59. 

Rattray petitioned this court, pursuant to Federal Rule of Civil Procedure 23(f),

to permit an interlocutory appeal of the district court’s ruling. An administrative panel

of the court granted the petition, and the case was assigned to this panel for decision.

II.

The district court may grant a motion to certify a class action only if the

putative class representative satisfies all four of the requirements set forth in Federal

Rule of Civil Procedure 23(a), and the class action satisfies one of the three

subsections of Federal Rule of Civil Procedure 23(b). Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 613-14 (1997). In common shorthand, the requirements for

class actions under Rule 23(a) are (1) numerosity, (2) commonality, (3) typicality, and

(4) adequacy of representation. Id. at 613. The district court ruled that Rattray

satisfied the first three Rule 23(a) requirements, but that she failed to convince the

court on the fourth. 

Rule 23(a)(4) permits certification of a class action only if the representative

“will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4).

The party moving for certification bears the burden to prove that she will adequately

represent the class. Bishop v. Comm. on Prof’l Ethics & Conduct, 686 F.2d 1278,

1288 (8th Cir. 1982). The district court must decide whether Rule 23(a)(4) is satisfied

through balancing “the convenience of maintaining a class action and the need to

guarantee adequate representation to the class members.” Wright v. Stone Container

Corp., 524 F.2d 1058, 1061 (8th Cir. 1975). The district court is accorded broad

discretion to decide whether certification is appropriate, and we will reverse only for

abuse of that discretion. In re Milk Prods. Antitrust Litig., 195 F.3d 430, 436 (8th Cir.

1999); Bishop, 686 F.2d at 1287.
4

Rattray asserts that the district court did not explicitly identify Rule 23(a)(4)

as a basis for denying her motion for class certification. Rattray, however, bore the

burden to prove adequacy of representation, and the district court stated plainly that

it was “not convinced” that Rattray was an adequate representative.

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Rattray contests the district court’s determination that she failed to prove that

she would be an adequate representative for the class.4

 She argues that the district

court ignored the earlier ruling of the magistrate judge granting her leave to amend the

complaint, in which the court found that Rattray had good cause for not asserting a

class action at an earlier date. Rattray also points to the “many depositions” and

“hundreds of pages of documents, including the records of those arrested for serious

misdemeanors” as evidence of her adequacy as class representative. In sum, Rattray

contends that the district court’s concerns about her adequacy as class representative

were unfounded, and that the district court abused its discretion.

We respectfully disagree. The magistrate judge’s determination that Rattray

had good cause for not asserting a class action before October 2007 did not dictate the

conclusion on the separate motion to certify a class. Whereas courts should “freely

give leave” to amend pleadings, Fed. R. Civ. P. 15(a)(2); see Foman v. Davis, 371

U.S. 178, 182 (1962), they must conduct a “rigorous analysis” to determine whether

the prerequisites for a class action under Rule 23(a) are satisfied. Gen. Tel. Co. of Sw.

v. Falcon, 457 U.S. 147, 161 (1982). The inquiry into adequacy of representation, in

particular, requires the district court’s close scrutiny, because the purpose of Rule

23(a)(4) is to ensure due process for absent class members, who generally are bound

by a judgment rendered in a class action. See Hansberry v. Lee, 311 U.S. 32, 41

(1940).

We agree with the district court’s conclusion that Rattray’s initial complaint,

at a minimum, forecasts that a broad strip search policy was in effect at the county jail.

Paragraph 40 specifically alleged that the “policy, regulation, official decision,

custom, or usage” of the Sheriff’s Department was to conduct strip searches and
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cavity searches without reasonable suspicion. Paragraph 41 alleged that this policy

or practice violated the Fourth Amendment rights of arrestees at the jail. Accepting

that these allegations were made in good faith, Rattray and her counsel knew when she

filed the complaint in February 2007 that a potential class existed, or at least that there

was reason to investigate the matter promptly. Yet Rattray did not amend her

complaint to assert a class action on behalf of other arrestees until October 2007. 

Even beyond that lapse in time, the district court was most concerned about the

nearly six-month period from the filing of the amended complaint to the filing of the

motion to certify the class. Including this delay, over fourteen months passed between

the filing of the initial complaint and the motion to certify. Rattray’s failure to move

to certify with alacrity undermines confidence in the zeal with which she would

represent the interests of absent class members. See E. Texas Motor Freight Sys. Inc.

v. Rodriguez, 431 U.S. 395, 405 (1977). A failure of the putative class representative

to assure the court that it will vigorously pursue the interests of class members is a

sufficient basis to deny certification. Monroe v. City of Charlottesville, 579 F.3d 380,

385 (4th Cir. 2009), cert. denied, 130 S. Ct. 1740 (2010); see 7A Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1766, at 373

(3d ed. 2005) (“[T]he failure of the representative to move for class certification in a

timely fashion or otherwise to prosecute the action is a clear indication that the named

party is not an adequate representative.”).

We also cannot quarrel with the district court’s suggestion that “counsel with

any experience litigating class actions could reasonably be expected to assess pertinent

evidence and to file a motion to certify a class in much less than six months after filing

a class claim.” Rattray, 253 F.R.D. at 456. The experience and capability of the

representative’s counsel bears upon the adequacy of the representative. E.g., Amchem,

521 U.S. at 626 n.20; Fendler v. Westgate-Cal. Corp., 527 F.2d 1168, 1170 (9th Cir.

1975); see 7A Wright, Miller & Kane, supra, § 1769.1, at 448-53. Our review of the

record does not reveal any explanation for the substantial delay between the filing of

the amended complaint and the filing of the certification motion. Having worked with
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Although we think the district court appropriately questioned the failure of

Rattray’s counsel to move for certification within a reasonable time, the court’s

unqualified statement that Rattray failed to show that her counsel had “any experience

with litigating class actions” is not supported by the record. One of Rattray’s counsel

did aver that she served as co-counsel in a class action that resulted in a settlement and

was associated with another attorney in a class action that was not certified. (R. Doc.

18, at 29-30).

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counsel for more than a year in this case, the district court has a better vantage point

from which to determine whether the delay in moving for certification suggests that

Rattray’s counsel would not effectively pursue the interests of absent class members.

See McCarthy v. Kleindienst, 741 F.2d 1406, 1410 (D.C. Cir. 1984) (“[T]rial courts,

charged with the orderly management of litigation, are uniquely well situated to make

class certification decisions.”).5

We conclude that there were sufficient grounds for the district court to decide

that Rattray failed to meet her burden to prove that she “will fairly and adequately

protect the interests of the class,” as required by Federal Rule of Civil Procedure

23(a)(4). The district court did not abuse its broad discretion in denying the motion

for class certification on that basis. Because we affirm the district court’s ruling as to

adequacy of representation under Rule 23(a)(4), we need not address the district

court’s alternative conclusions regarding Rule 23(b).

 * * *

The district court’s order denying Rattray’s motion to certify a class is affirmed.

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