Motion for Class Action Certification and Memorandum in Support

     [||a93f1183-9976-46d1-ad8f-0ec15d9a5085||] IN THE 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

BERNICE TERRY, et al., 

Plaintiffs, 

Vv. NO. H 76-373 

METHODIST HOSPITAL OF GARY, et al., 

Defendants. 

  

  

RICHARD GORDON HATCHER, et al., 

Plaintiffs, 

Vv. NO. H 77-154 

METHODIST HOSPITAL OF GARY, et al., 

Defendants. 

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MOTION FOR CLASS ACTION CERTIFICATION 
  

Plaintiffs, in accordance with Rule 23 (c¢) 1, FRCP, 

hereby move the Court for an order certifying that this case 

shall proceed as a class action, advanced in behalf of the 

following classes, pursuant to Rule 23 (a) and 23(b)2, FRCP: 

l. All black and hispanic residents of Gary, 
Indiana who use, have used or will use Gary 
Methodist Hospital and who are, have been, or 
will be injured by the creation, perpetuation, 
and expansion of a segregated hospital system. 

2. All handicapped residents of Gary, Indiana 
who use, have used or will use and are better 
served by facilities at Gary Methodist Hospi- 
tal, and who are, have been or will be injured 
by the placement, removal to or expansion of 

facilities at Broadway Methodist Hospital.       
 



      

As demonstrated in a memorandum of law, herewith 

submitted, all requisites to such certification are satis- 

fied by this Action. 

Respectfully submitted, 

  

1 

JACK \GREENBERG 
MELVYN R. LEVENTHAL 

BETH J. LIEF 

10 Columbus Circle 

New York, New York 10019 

JULIAN ALLEN 

2009 Broadway 
Gary, Indiana 46407 

MARILYN G. ROSE 

CHRISTINE B. HICKMAN 
1751 N Street, N. W. 
Washington, D. C. 20036 

Attorneys for Plaintiffs 

  

 



      

IN THE 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

BERNICE TERRY, et al., 

Plaintiffs, 

¥. : NO. H 76-373 

METHODIST HOSPITAL OF GARY, INC., 

Defendants. 

  

  

RICHARD GORDON HATCHER, et al., 

Plaintiffs, 

. NO. H 77-154 

METHODIST HOSPITAL OF GARY, INC., et al., : 

Defendants. 

  

MEMORANDUM OF LAW IN SUPPORT OF CLASS 
ACTION CERTIFICATION 
  

Plaintiffs are: (a) Richard G. Hatcher, a black 

resident and Mayor of Gary, Indiana who will require the use 

of health services and who, as Mayor, is "responsible... for 

assuring that the social service and health needs of his 

constituency...are met 3" (b) Willie Lee Page, a black resi- 

dent of Gary, Indiana, 66 years old, who has already required 

and continues to require regular use of hospital services and 

facilities provided by defendants; (c) Metro Corps. Inc., 

a not-for-profit corporation which, inter alia, conducts pro- 
  

grams to assure that transportation to defendants' hospital 

facilities is available to the poor, the elderly and the handi- 

capped of Gary. Metro Corps. Inc.'s by-laws provide that 

  

 



      

® @® 

a "minumum of one-third [of the Board of Directors be] representa- 

tives of the poor and disadvantaged: elected by free elections," 

held in identified communities; an additional third of the Board 

of Directors consists of organizations with a manifest interest 

in and responsibility to the black, the Hispanic, the poor, the 

elderly and the handicapped citizens of cars 

The issue of whether named plaintiffs individually have 

standing to bring this action is addressed in Memorandum of 

Plaintiffs in Opposition to Motion to Dismiss submitted to the 

Court on August 13, 1977. We herein argue in support of plain- 

tiffs' Motion for Class Action Certification that the requirements 

of Rule 23 are fully satisfied and that defendants' opposition to 

certification is without merit. 

I 

Plaintiffs seek certification under Rule 23 (b) 2 

which provides for class actions when: 

the party opposing the class has acted or 
refused to act on grounds generally 
applicable to the class, thereby making 
appropriate final injunctive relief 
or corresponding declaratory relief with 
respect to the class as a whole.... 

By its very terms Rule 23(b) 2 applies primarily to 

injunctive and declaratory relief. And the Advisory Committee 

Notes on revised Rule 23 state that "illustrative [of Rule 23(b)2 

actions] are various actions in the civil rights field where a 
  

party is charged with discriminating unlawfully against 2 class, 

usually one whose members are incapable of specific enumeration." 

39 F.R.D. 69, 102. (Emphasis added). Accordingly, virtually 

without exception all actions alleging racial or other invidious 

discrimination have been certified under Rule 23(b) 2 upon 

the satisfaction of the requirements of Rule 23(a): 

ve 
The organizations listed are the "Urban League, Tenants Council, 

Senior Citizens, Youth Representative (IU Dons) and the Gary 
Housing Authority." Alternative representatives are listed as 
Youth Services Bureau, Ministerial Alliance, NAACP, Baptist 
Ministers' Conference of Gary and Vicinity." 

  

-   
 



        

Fujishima v. Board of Education, 460 F.2d 1355, 1360 (7th Cir. 
  

1972); Albemarle Paper Company v. Moody, 422 U.S. 405, 414, n. 8 
  

(1975): Penn v. San Juan Hospital, 528 F.2d 1181, 1188, (10th Cir. 
  

1975); cf., Sprogis v, United Air Lines, Inc., 444 F.2d 1194, 1201+ 
  

1202 (7th Cir. 1971); Potts v, Flax, 313 P.2d 284, 1289-90 (5th 
  

Cir. 1963). Federal courts have routinely recognized that the 

class action device is particularly suitable for cases seeking in- 

juntive relief against unlawful discrimination in facilities avail- 

able to the general public. Bailey v. Patterson, 323 F.2d 201, 
  

206 (5th Cir. 1963); Coleman v. Humphreys County Mem. Hospital, 
  

44 F.R.D. 507 (N.D. Miss. 1972); Penn, supra; Potts, supra. This 
  

is an action attacking defendants' policies and practices affect- 

ing or "generally applicable" to all blacks, Hispanics and handi- 

capped persons residing in Gary. It seeks "injunctive relief. . . 

[and] declaratory relief with respect to [such] class[es] as a 

whole." Defendants have not and cannot seriously dispute that 

class certification is therefore here contemplated by Rule 23 (b) 2. 

JX 

An action cannot be maintained as a class action unless the 

requirements of Rule 23(a) are satisfied, i.e., unless "the class 

is so numerous that joinder of all members is impracticable," 

there are common questions of law and fact, the claims of the named 

plaintiffs are typical of those of the class and the "representa- 

tive parties will fairly and adequately protect the interests of 

the class." 

(2a) Numerosity 
  

Gary's population in 1970 was 175,249 of which 107,600 (62%) 

were black and Hispanic; approximately 13,300 of its residents were    



        

over 65 years old. (Bureau of the Census data, 1970, recorded in 

Draft Regional Health Plan, Northwest Indiana Comprehensive 
  

Health Planning Council, Inc., 1975, pp. J-9, I-10). As a group, 

the aged suffer disproportionately from physical and mental im- 

pairments which substantially limit one or more of their major 

life activities; they are handicapped within the meaning of 29 

U.S:Cte § Jor Manifestly, the number of black, Rispanic and 

handicapped residents who use and will use defendant's facilities 

and services is "so numerous that joinder of all members is im- 

practicable." Cypress v. Newport News General Hospital, supra, 
  

375 F.2d at 653 and n. 9 (18 class members satisfies numerosity; 

size of the class is infinite because prospective injunctive re- 

3/ 
lief is sought. 

  

2/ In Lake County, (80% of which is Gary) 54,000 people, more 

than 10% of the population, suffer from one or more chronic con- 

ditions which limit life activities and mobility. Chronic Condi- 

tions and Limitations of Activity and Mobility, U.S., July 1965- 
June 1967, NCHS, U.S. DHEW 1971 and 1970 (Census (based on NCHS 

Household Survey, National Health Survey and North Central Region 

Data), compiled by Health Data Unit, Indiana State Board of 

Health, published in Indiana's Disabled Population and cited in 

Draft Regional Health Plan, Northwest Indiana Comprehensive Health 

Planning Council, Inc., 1975, p. I-32. 

  

  

  

  

3/ Plaintiffs have propounded interrogatories seeking precise 
statistical data on the number of persons by race and national 

origin who have used defendant's hospitals. Although the Court 

might find such information useful and presume that the number of 

such persons treated in the past will approximate the number who 

will be treated in the future, the census tract data provided in 

the text are enough to demonstrate numerosity. 

   



      

(b) Commonality 
  

Professor Moore has observed that the "commonality" require- 

ment of Rule 23(a)2 is surplusage since under Rule 23 (b)2 the 

Court must separately find that the "party opposing the class has 

acted or refused to act on grounds generally applicable to the 

class." In view of the superfluity courts either ignore the re- 

quirement or find it satisfied "undoubtedly," or "certainly." 

Moore's, Federal Practice, Vol. 3B, €23.06-1, p. 23-301. 
  

The common question of law and fact — the thread connect- 

ing all aspects of this controversy — is whether defendant's 

policies and practices are tainted by racial or other discrimina- 

tion proscribed by federal law. The question arises for all 

members of the classes named plaintiffs seek to represent. And 

the existence of such a question satisfies Rule 23(a) (2). Norwalk 

CORE v. Norwalk Development Agency, 395 F.2d 920 (2d Cir. 1968); 
  

Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968); 
  

Donaldson v. Pillsbury Co., 554 P.2d 825, 831, n. 5 (8th Cir. 
  

1977). 
4/ 

(Cc) Typlicality 
  

Professor Moore opines that Rule 23(a)3's requirement of 

"typicality" is included within 23(a)4. Moore's Federal Practice, 
  

vol. 3B, €23.06-2. Nevertheless, "in an effort to give Rule 

23 (a) 3 independent meaning, some courts have said that the typi- 

cality provision requires a demonstration that there are other 

members of the class who have the same or similar grievances as 

the [named] plaintiff[s]." The claims need not be identical, nor 

need they be advanced by all members of the class. Donaldson v. 
  

  

4/ Defendants argue that plaintiffs do not satisfy the require- 
ment of Rule 23(a)3: "The [named] plaintiffs . . . do not allege 

that they have been denied any services by defendant . . . . The 

Be   
 



      

5/ 
Pillsbury Co., 554 F.2d 825, 830 (8th cir. 1977). 
  

(d) Adequate Representation 
  

Rule 23 (a)4's requirement of "adequate representation" 

turns on whether the plaintiff's attorney "is qualified, exper- 

ienced and generally able to conduct the proposed litigation and 

« « « [whether plaintiff has an] interest antagonistic to those 

of the class." Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 
  

239, 247 (3rd Cir. 1975); Senter v. General Motors Corp., 532 F.2d 
  

511, 525 (6th Cir. 1976). "Factual identity between the [named] 

plaintiff's claim and those of the class he seeks to represent 

  

is not necessary." Senter, 532 F.2d at 524. Donaldson, supra; 

Foster v. Sparks, 506 F.2d 805, 809 (5th Cir. 1975). 
  

Counsel for plaintiffs are on the staff of or associated 

with the NAACP Legal Defense Fund which has demonstrated in this 

case and thousands more over a forty-year period an ability and 

willingness to advance cases charging invidious discrimination. 

And no class member can seriously oppose the elimination of racial 

and other invidious discrimination in the provision of health 

  

4/ '{Cont'd) 

claim of the class is that . . . [it] has been denied some ser- 
vice by defendant . . . . [Therefore], the named plaintiffs 
claims are not substantially identical to the alleged claims of 
the class . . . ." (Memorandum in Support of Defendant's Motion 
Concerning the Status of this Suit as a Class Action, filed 
January 19, 1977, pp. 1-2). Nothing in the Complaint supports de- 
fendant's assertion. The claim of named plaintiffs, on their own 
behalf as well as for the classes is that defendant is affording 
services and is engaging in a construction program in a racially 
discriminatory manner. Moreover, as we point out in the text, 
and footnote 5 below, Rule 23(a) does not require that named plain- 
tiffs' claims mirror those of the class. 

  

5/ In Donaldson, named plaintiff claimed that her discharge re- 
sulted from race and sex discrimination. Although she was found 
to be lawfully discharged and hired under unusual circumstances 

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6/ 
services by defendants. 

IV 

Defendants concede that under Rule 23 (b)2 notice to class 

members is not required. Wetzel, supra, 508 F.2d at 254-57. 
  

They argue, nevertheless, that due process considerations require 

the issuance of a 23(d) 2 discretionary notice to class members 

individually. Wetzel properly holds, however, that in a Rule 

23 (b) 2 action the class is by its "very nature . . . homogeneous 

without any conflicting interests between members of the class" 

and accordingly that due process considerations do not require 

notice. Wetzel, 508 F.2d at 256-57. 

Conclusion 
  

Plaintiffs' Motion For Class Action Certification should be 

granted because the requirements of Rule 23(a) and (b)2 are sat- 

isfied by this action. Notice to class members is neither re- 

quired nor appropriate. 

ES submitted, 
A io op, § 

= ir, Fas] ’ LE 
7% GREENBERG 
MELVYN R. LEVENTHAL 

BETH J. LIEF 

10 Columbus Circle, Suite 2030 

New York, New York 10019 

Attorneys for Plaintiffs 

  

3/ {Cont'd) 

her class action in behalf of all former and present black and fe- 

male employees and all unsuccessful black and female applicants 

for employment, was upheld. 

6/ Defendants' assertion that this action seeks or will result in 

preventing the construction of a health services building in down- 

town Gary is patently false. Nothing in the Complaint can be con- 

strued as seeking or effecting such a result. Defendants may 

decide that if they can't construct facilities and provide ser- 

vices on a discriminatory basis then they will not make any 

additions to the Gary Methodist Hospital. But such a result would 

deprive defendants' commitment to unlawful discrimination not from 

any conflict between the objectives of named plaintiffs and other 

class members. 

  

 



      

Certificate of Service 
  

I hereby certify that a copy of the foregoing Motion 

For And Memorandum In Support Of Class Action Certification 
  

was served by United States mail, postage prepaid, on 

the 29th day of August 71977, on counsel "for 
  

defendants as follows: 

Rebecca L. Ross, Esq. 
Department of Justice 
10th and Pennsylvania Avenue 
Washington D.C. 

Marvin G. Garvin, Esg. and Edward L. Koven, Esq. 
Regional Attorney and General Attorney 
Department of Health, Education and Welfare 
300 South Wacker Drive, 18th Floor 
Chicago, Illinois 

Fred W. Grady, Esq. 
Assistant United States Attorney 
Northern District of Indiana 
Federal Building, 502 State Street 
Hammond, Indiana 46325 

Attorneys for Defendant Secretary of Health, 
Education and Welfare 

Hodges, Davis, Gruenberg, Compton & Sayers 
Bruce E. Sayers, Esq. 

5525 Broadway 
Gary, Indiana 46401 

Attorneys for Defendant Methodist Hospital 
of Gary, Inc. 

Theodore L. Sendak, Esq. 
Assistant Attorney General of Indiana 
219 State House 
Indianapolis, Indiana 

Attorneys for State Defendants 

Anthony DeBonis, Jr., Esq. 
Joseph E. Costanza, Esq. 
Murphy, McAtee, Murphy & Costanza 
First National Bank Building 
720 W. Chicago Avenue 
East Chicago, Indiana 46312 

Attorneys for Defendant Kipton Kaplan 

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{ Beth J. Lief 
Counsel for Plaintiffs 

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