UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIACIVIL MINUTES—GENERALCase No.

 CV 10-02211 DMG (DTBx)

 Date August 27, 2012

 

Title

 JoseAntonioFranco-Gonzalez, etal. v. JanetNapolitano, etal.

 Page 1 of 8

CV-90

 CIVIL MINUTES—GENERAL

 Initials of Deputy Clerk vv

 

Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGEVALENCIA VALLERY NOT REPORTEDDeputy Clerk Court Reporter Attorneys Present for Plaintiff(s) Attorneys Present for Defendant(s) None Present None Present

Proceedings: IN CHAMBERS—ORDER DENYING DEFENDANTS’ MOTION TOAMEND OR, IN THE ALTERNATIVE, RECONSIDER THE CLASSCERTIFICATION ORDER [DOC. # 389]

This matter is before the Court on Defendants’ motion to amend or, in the alternative,reconsider the class certification order dated November 21, 2011 [Doc. # 348], originally set for hearing on July 13, 2012. On July 11, 2012, the court took the matter under submission becauseit was deemed appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. L.R.7-15. For the reasons set forth below, Defendants’ Motion is DENIED.Defendants ask the Court to reconsider its November 21, 2011 Order certifying thefollowing Class:All individuals who are or will be in DHS custody for removal proceedings in California, Arizona, and Washington who have been identified by or to medical personnel, DHS, or anImmigration Judge, as having a serious mental disorder or defectthat may render them incompetent to represent themselves indetention or removal proceedings, and who presently lack counselin their detention or removal proceedings.Doc. # 348 at 28 (emphasis added). According to Defendants, the Ninth Circuit—through itsone-line pronouncement in

 Mazza v. American Honda Motor Company, Inc.

, 666 F.3d 581 (9thCir. 2012), that “no class may be certified that contains members lacking Article III standing”— answered a previously open question,

 i.e.,

 whether a class definition is defective if any of theunnamed class members lack standing, even if at least one named plaintiff meets the standingrequirements.

Case 2:10-cv-02211-DMG -DTB Document 455 Filed 08/27/12 Page 1 of 8 Page ID#:9483

 

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIACIVIL MINUTES—GENERALCase No.

 CV 10-02211 DMG (DTBx)

 Date August 27, 2012

 

Title

 JoseAntonioFranco-Gonzalez, etal. v. JanetNapolitano, etal.

 Page 2 of 8

CV-90

 CIVIL MINUTES—GENERAL

 Initials of Deputy Clerk vv

“The crux of Defendants’ position is that the class may not include aliens who lack any present indicia of incompetency and, thus, have no connection to the alleged injury or the relief sought in this action.” (Defs.’ Reply at 11.)Defendants ask the Court to amend the class definition to exclude unnamed classmembers whose injury is purely conjectural or hypothetical,

 i.e.,

 individuals who (1) are not yet, but “will be” in DHS custody for removal proceedings and (2) have been diagnosed with aserious mental disorder or defect that “may” render them incompetent to represent themselves indetention or removal proceedings. Defendants propose the following alternative Classdefinition:

1

All aliens detained by the Department of Homeland Security inCalifornia, Arizona, and Washington, who are in pending removal proceedings under 8 U.S.C. §1229a, who an immigration judgmenthas found (based on evidence of a mental health disorder or defect) present indicia of mental competency, and who presently lack qualified representatives in the form of attorneys, accreditedrepresentatives, legal guardians, near relatives, or friends in their removal proceedings or related bond proceedings.(

 Id.

) (emphasis added).

A. Legal Standards

Pursuant to Rule 23(c)(1)(C), “[a]n order that grants or denies class certification may bealtered or amended before final judgment.” Fed. R. Civ. P. 23(c)(1)(C). Rule 23 provides theCourt with “broad discretion to determine whether a class should be certified, and to revisit that

!

Defendants also ask the Court to reconsider the alternative definition to which they cited in their opposition to Plaintiffs’ motion for class certification:All aliens detained by the Department of Homeland Security in California whoare in pending removal proceedings under 8 U.S.C. § 1229a, who have beendetermined to be mentally incompetent by an immigration judge for purposes of their removal proceedings, and who presently lack qualified representatives inthe form of attorneys, accredited representatives, legal guardians, near relatives,or friends in their removal proceedings or related bond proceedings.(Defs.’ Mot. at 13) (emphasis added).

Case 2:10-cv-02211-DMG -DTB Document 455 Filed 08/27/12 Page 2 of 8 Page ID#:9484

 

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIACIVIL MINUTES—GENERALCase No.

 CV 10-02211 DMG (DTBx)

 Date August 27, 2012

 

Title

 JoseAntonioFranco-Gonzalez, etal. v. JanetNapolitano, etal.

 Page 3 of 8

CV-90

 CIVIL MINUTES—GENERAL

 Initials of Deputy Clerk vv

certification throughout the legal proceedings before the court.”

 United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Industrial & Service Workers Int’l Union, AFL-CIO, CLC v.ConocoPhillips Co.

, 593 F.3d 802, 809 (9th Cir. 2010) (quoting

 Armstrong v. Davis,

 275 F.3d849, 871 n. 28 (9th Cir. 2001),

 abrogated on other grounds Johnson v. California,

 543 U.S. 499,504-05 (2005)). Even after the Court has certified a class, the Court retains the flexibility toaddress problems as they arise and may modify the certification order or even decertify the class.593 F.3d at 809.

B. Discussion

2

1. Standing in the Class Action Context

To satisfy Article III’s standing requirement, an individual plaintiff must meet a three- part test: (1) the plaintiff “must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, notconjectural or hypothetical”; (2) “there must be a causal connection between the injury and theconduct complained of,”

 i.e.

, “the injury has to be fairly traceable to the challenged action of thedefendant, and not the result of independent action of some third party not before the court”; and(3) “it must be likely, as opposed to merely speculative that the injury will be redressed by afavorable decision.”

 San Luis & Delta-Mendota Water Auth. v. Salazar 

, 638 F.3d 1163, 1169(9th Cir. 2011) (quoting

 Lujan v. Defenders of Wildlife

, 504 U.S. 555, 560-61, 112 S.Ct. 2130,119 L.Ed.2d 351 (1992)) (internal quotation marks omitted),

 cert. denied 

, 2011 WL 2519764(2011).In

 Bates v United Parcel Svc., Inc.

, 511 F.3d 974, 988 (9th Cir. 2007) (

en banc

), the Ninth Circuit established the well-known principle that, in the class action context, where the plaintiffs seek injunctive relief:standing is satisfied if at least one named plaintiff meets therequirements . . . . Thus, we consider only whether at least onenamed plaintiff satisfies the standing requirements.

2

Defendants make much of the fact that they originally opposed Plaintiffs’ motion for class certification onthe grounds that Plaintiffs’ proposed definition was overly broad. In fact, the grounds on which Defendantsopposed class certification did not include those at issue here. There, Defendants objected to Plaintiffs’ proposeddefinition because: (1) the proposed definition included individuals for whom representation may be secured at afuture time; (2) the terms “serious mental disorder or defect” and “incompetent” were not defined and vague; and (3)the proposed definition failed to recognize that an incompetent alien could be represented by a non-attorney,including a “qualified representative.” (Defs.’ Opp’n [Doc. # 161 at 21-23.)

Case 2:10-cv-02211-DMG -DTB Document 455 Filed 08/27/12 Page 3 of 8 Page ID#:9485