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Riley v. PK Management, LLC

United States District Court, D. Kansas

December 20, 2019

LEORA RILEY et al., Plaintiffs,
v.
PK MANAGEMENT, LLC et al., Defendants.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, United States District Judge.

         Leora Riley and Terri Ozburn bring putative class action claims against PK Management, LLC, Central Park Investors, LLC, Aspen Companies Management, LLC and Central Park Holdings, LLC. See Second Amended Class Action Complaint (Doc. #204) filed July 15, 2019. Plaintiffs allege that defendants failed to prevent and remedy uninhabitable living conditions at Central Park Towers, an apartment building in Kansas City, Kansas. Specifically, plaintiffs claim (1) breach of the implied warranty of habitability; (2) breach of the statutory duty to materially comply with a lease agreement and provide habitable housing; (3) failure to provide essential services; (4) breach of contract; (5) unjust enrichment; (6) nuisance; and (7) negligence. Plaintiffs seek monetary damages and injunctive relief. This matter comes before the Court on Plaintiffs' Motion For Class Certification, Appointment Of Class Representatives And Appointment Of Class Counsel (Doc. #239) filed September 16, 2019. For reasons stated below, the Court overrules plaintiffs' motion.

         Factual Background

         Plaintiffs are residents of Central Park Towers, a 195-unit apartment building in Kansas City, Kansas which participates in the U.S. Department of Housing and Urban Development (“HUD”) Section 8 program for low-income tenants. From January 26, 2013 until October 29, 2015, Central Park Investors and PK Management owned and managed Central Park Towers. On October 29, 2015, Central Park Investors sold Central Park Towers to Central Park Holdings. Central Park Holdings and Aspen Companies Management are the current owner and property manager, respectively. Second Amended Class Action Complaint (Doc. #204) at 7, 14.

         Plaintiffs allege that defendants have maintained severely substandard housing conditions at Central Park Towers in violation of lease agreements and state and common law duties. These conditions include mold, water leaks and infestations of bed bugs, mice, cockroaches and other vermin and insects. Plaintiffs assert that throughout the relevant period, numerous inspections have confirmed the presence of bed bugs and cockroaches in at least some units and have found evidence of bed bugs in common areas. On or about February 6, 2019, a HUD inspection of Central Park Towers did not note the presence of bed bugs, but plaintiffs believe that this is because defendants concealed the problem or inspectors did not look for bed bugs.

         Plaintiffs allege that defendants have been aware of these housing conditions for years but have failed to adequately address them. Specifically, plaintiffs assert that defendants' pest control measures have been grossly inadequate in that they rely on tenant complaints. At the same time, plaintiffs assert that tenants are afraid to complain about bed bugs because Aspen Management and Central Park Holdings will charge them $600.00 per bed bug treatment.

         Named plaintiff Ozburn has lived in the apartment building for several years and asserts that she has complained to no avail about substandard living conditions. Specifically, as early as April 10, 2017, Ozburn wrote a letter in which she complained about bed bugs, cockroaches, mice, mold, defective elevators, unsafe conditions and rampant criminal activity at the apartment complex. She asserts that the property manager did not respond to her letter.

         Named plaintiff Riley has lived at Central Park Towers for nine years and has complained to management several times. She asserts that pest infestations have damaged or destroyed her property and that her requests for maintenance go unanswered for long periods. Specifically, Riley asserts that her air conditioner and heater have been out of service during inclement weather, that her apartment has flooded multiple times because of air conditioner leaks and that she has experienced other maintenance issues. Riley further asserts that trash piles up at the complex and that she and other residents often must clean the common areas.

         Plaintiffs seek to certify the following class:

All persons who currently reside at Central Park Towers or formerly resided therein at any time from January 26, 2013 to the date this Class is Certified.

Plaintiffs' Memorandum Of Law In Support Of Their Motion For Class Certification, Appointment Of Class Representatives And Appointment of Class Counsel (Doc. #240) filed September 16, 2019 at 22. Plaintiffs ask the Court to appoint Riley and Ozburn as class representatives. Plaintiffs also ask the Court to appoint class counsel. Id. at 29-30.

         Legal Standards

         The class action is an exception to the usual rule that litigation is conducted by and on behalf of individual named parties only. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011). The Court has considerable discretion in making class certification decisions. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1227-28 (10th Cir. 2013) (because class certification involves “intensely practical considerations, ” decision lies within discretion of trial court); see also Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010) (district court in best position to consider most fair and efficient procedure for litigation). It must, however, conduct a “rigorous analysis” to determine whether the putative class satisfies the requirements of Rule 23, Fed.R.Civ.P. Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013); Dukes, 564 U.S. at 350-51; Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). Rule 23 “does not set forth a mere pleading standard.” Dukes, 564 U.S. at 350. Rather, the Court's analysis will frequently overlap with the merits of plaintiffs' claims. See Comcast, 569 U.S. at 33-34; Dukes, 564 U.S. at 351. This is so because determining whether to certify a class typically involves considerations that are enmeshed in the factual and legal issues which comprise plaintiffs' cause of action. Comcast, 569 U.S. at 34.

         As the parties seeking to certify a class, plaintiffs have the burden to prove that the class satisfies the requirements of Rule 23, Fed.R.Civ.P. See Shook v. El Paso Cnty., 386 F.3d 963, 968 (10th Cir. 2004); D. Kan. Rule 23.1(d). In doing so, plaintiffs must first satisfy the prerequisites of Rule 23(a), i.e. they must demonstrate that the class is so numerous that joinder of all members is impracticable; questions of law or fact are common to the class; the claims of the representative parties are typical of claims of the class; and the representative parties will fairly and adequately protect the interests of the class. See Rule 23(a), Fed.R.Civ.P. After meeting these requirements, plaintiffs must demonstrate that the proposed class action fits within one of the categories described in Rule 23(b), Fed.R.Civ.P. Here, plaintiffs seek to certify a class under Rule 23(b)(3).

         Under Rule 23(b)(3), plaintiffs must show that “questions of law or fact common to the members of the class predominate over any questions affecting individual members” and that a class action “is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). In determining predominance and superiority under Rule 23(b)(3), the Court considers the following factors:

(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or ...

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