United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, United States District Judge.
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'
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.
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.
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.
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.
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.
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.
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.
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).
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 ...