Defendant-Intervenors' Motion for Stay

    - 

  

  

  

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

Civil Action No. 4:96-CV-104 

MARTIN CROMARTIE, et al. ) 

) 
Plaintiffs, ) 

) 
v. ) 

) 
JAMES B. HUNT, JR., et al., ) 

) DEFENDANT-INTERVENORS’ 

Defendants, ) MOTION FOR STAY 

) 
and ) 

) 
) 

ALFRED SMALLWOOD, ef al., ) 

) 
Defendant-Intervenors. ) 

)   

Pursuant to Rule 62(c) of the Federal Rules of Civil Procedure, Alfred Smallwood, 

David Moore, William M. Hodges, Robert L. Davis, Jr., Jan Valder, Barney Offerman, Virginia 

Newell, Charles Lambeth and George Simkins ("the Smallwood Intervenors"), by their 

undersigned attorneys, respectfully move this Court for a stay of its March 7, 2000 order 

declaring North Carolina’s Twelfth Congressional District unconstitutional and enjoining the State 

of North Carolina from using the district in furture elections on the grounds set forth in the 

attached memorandum. 

WHEREFORE, the Smallwood Intervenors pray that their motion for stay be granted. 

This day of March, 2000. 

Respectfully submitted, 

    

ELAINE R. JONES ADAM STEIN 

Director-Counsel and President Ferguson, Stein, Wallas, Adkins     
  

 



  

calling an expert to report on liability and damages. And to avoid any Constitutic 

concerns plaintiffs have agreed to send notice to the class members telling them 

they can opt out of the case if they choose. | 

In such a context, and given that the standard for reversal is abuse of discr | 

defendant’s only hope on appeal is for this Court to hold that the addition of 

compensatory and punitive damages absolutely precludes civil rights plaintiffs wi 

seek to recover such damages from proceeding under Rule 23. But such a holdin, 

would clearly be inconsistent with the intent of Congress and unsupported by any 

factual necessity. For these reasons defendant's appeal should be rejected. 

A. This Case Was Properly Certified Under 23(b)(2). 

Defendants make a variety of arguments in opposition to the District Court 

certification of the class under (b)(2), ranging from the statement that courts hav 

generally held that (b)(2) is inappropriate since the passage of the 1991 Civil Righ | 

Act, to the claim that the mere fact that monetary damages are recoverable mear 

that such damages dominate the equitable relief. Plaintiffs address all these 

arguments below. 

1. Most District Courts Have Concluded That Civil Rights Class 

Actions Seeking Compensation and Punitive Damages Are 

Certifiable Under 23(b)(2). 

Defendant asserts that "In class action litigation, where plaintiffs claim 

compensatory and punitive damages, there is a growing consensus, adopted by th | 

Court, that (b)(2) certification is not available." Def. Brief at 18-19. This assertio 

 



  

  

  

  

| 

NORMAN J. CHACHKIN Gresham & Sumter, P.A. 

NAACP Legal Defense and 312 West Franklin Street 
Educational Fund, Inc. Chapel Hill, North Carolina 27516 

99 Hudson Street, Suite 1600 (919) 933-5300 

New York, New York 10013 

(212) 219-1900 

TODD A. COX 
NAACP Legal Defense and 

Educational Fund, Inc. 

1444 1 Street, N.W., 10th Floor 

Washington, D.C. 20005 
(202) 682-1300 

  

    
  

      

 



  

untrue. District Courts have overwhelmingly rejected that part of the holding of 

Allison v. Citgo Petroleum Corp. 151 F.3d 402 (5'" Cir. 1998) which at least 

suggests that (b)(2) is never an appropriate basis for certifying civil rights class 

actions. See, e.g., the following district decisions. Butler v. Home Depot, ----- 

F.Supp. ---(N.D. Cal. 1996); McClain v. Lufkin Industries, Inc., 187 F.R.D. 267 

(E.D. Tex. 1999); Orlowski v. Dominick’s Finer Foods, Inc., 172 F.R.D. 370 

(N.D. Ill. 1997); Warnell v. Ford Motor Co., 1999 U.S. Dist. LEXIS 16563 (N.D. 

Ill. 1999). See also E.E.O.C. v. Foster Wheeler Constructors, Inc., 1999 

U.S. Dist. LEXIS 11226 (N.D. Ill. 1999). Not only have each of these decisions 

certified civil rights classes under (b)(2) they have also concluded that the additic 

punitive and compensatory damages does not make class certification of civil rig 

cases unmanageable in contexts far more complicated than this one. 

2. The Theory That 23(b)(2) Is Not Available To Certify Class 

Actions Seeking Compensatory Damages As Well As Injunctive 

Relief Is Inconsistent With The History Of The Civil Rights Act 

And The Rule. 

There is no hint in the 1991 Civil Rights Act that Congress believed that th 

addition of compensatory and punitive damages changed the rules on class 

certification. Before the courts end the historical marriage of civil rights cases a 

23(b)(2) they need far clearer guidance from Congress.> 

  

® Congress has made it clear that it expects the Courts to apply Rule 23 in the broadest possible 
manner in connection with civil rights cases. In 1972 certain members of Congress sought to extinguish 
the right of plaintiffs under Title VII to bring class actions in the wake of the "across-the-board" class 
certifications brought under 23(b)(2) that swept through the courts in the late 60’s and early 70’s. (For an 

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CERTIFICATE OF SERVICE 

I hereby certify that true and correct copies of Defendant-Intervenors” Motion for Stay 

have been served by first-class mail, postage prepaid to the following: 

Edwin M. Speas, Jr. 
Chief Deputy Attorney General 

Tiare B. Smiley 
Special Deputy Attorney General 

North Carolina Department of Justice 

Post Office Box 629 
Raleigh, North Carolina 27602-0629 

and have been served by telefacsimile and first-class mail, postage prepaid to the following: 

Robinson O. Everett 

Everett & Everett 

Post Office Box 586 

Durham, North Carolina 27702 

This day of March, 2000. 

  

Todd A. Cox   
        

 



  

Rule 23(b)(2) has long been the provision of choice for certifying classes in « 

rights cases like this one. Indeed, 23(b)(2) is a direct outgrowth of civil rights cas: 

| 
SEE KAPLAN, CONTINUING WORK OF THE CIviL COMMITTEE, 81 Harvard L. Rev. | 

356, 389 (1967): 

Next comes new subdivision (b)(2), building on experience mainly, but not 

exclusively, in the civil rights field. Here individual lawsuits, even if they 
could conceivably avoid untoward effects comparable to those following fro: 
separate actions in (b)(1) situations, would nevertheless be inadequate and 

inefficient. When the party opposing a class had acted on grounds apparent 
applying to the whole group, a representative suit should be available to sec 
for the class any appropriate injunctive or declaratory relief. So (b)(2) 
provides. 

Numerous law suits challenging discrimination in labor unions have been 

certified under Rule 23(b)(2). See Eggleston v. Chicago Journeymen 

Plumbers’ Local Union No. 130, 657 F.2d 890 (7 Cir. 1981); Wattleton v. 

Tillman, 89 F.R.D. 677 (E.D. Wis. 1981); Alaniz v. California Processors, 

Inc., 73 F.R.D. 269 (N.D. Cal. 1976), modified, 73 F.R.D. 289 (N.D. Cal. 1976); 

Commonwealth of Pennsylvania v. Local Union 542, International 

  

example of such certification, see Jenkins v. United Gas Corp., 400 F. 2d 28 (5th Cir. 1968).) Congress 

was unpersuaded. It specifically rejected all attempts to rein in Title VII class actions. See Legislative 

History of The Equal Employment Opportunity Act of 1972, Subcomm. on Labor, Comm. On Labor & 

Public Health (Nov. 1972): 

In establishing the enforcement provisions under this subsection and subsection 706(f) generally, 

it is not intended that any of the provisions contained therein shall affect the present use of class 

action lawsuits under Title VII in conjunction with Rule 23 of the Federal Rules of Civil 

Procedure. The courts have been particularly cognizant of the fact that claims under Title VII 

involve the vindication of a major public interest, and that any action under the Act involves 

considerations beyond those raised by the individual claimant. As a consequence, the leading 

cases in this area to date have recognized that many Title VII claims are necessarily class action 

complaints and that, accordingly, it is not necessary that each individual entitled to relief be 

named in the original charge or in the claim for relief. A provision limiting class actions was 

contained in the House bill and specifically rejected by the Conference Committee. 

There has been no subsequent attempt by Congress to limit the ability of plaintiffs to bring class actions 

under Title VII since that time and nothing in the 1991 Act provides support for such a limitation. 

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