DaSilva v. Esmor Correctional Services Inc.

Citations: 215 F.R.D. 477; 2003 U.S. Dist. LEXIS 9581; 2003 WL 21347304Docket: Civil Nos. 96-3755(DRD), 97-3093(DRD), 98-1282(DRD)

Court: District Court, D. New Jersey; June 10, 2003; Federal District Court

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Two individual lawsuits and a certified class action are currently before the court: DaSilva v. Esmor Correctional Services Inc., Jama v. U.S. Immigration and Naturalization Services, and Brown v. Esmor Correctional Services, Inc. The Brown Action, initially filed in New York state court, was removed to federal court and transferred in 1998. All plaintiffs are immigrants detained by the INS at an Esmor-operated facility in New Jersey, alleging violations of federal and state rights. The three cases have been consolidated for discovery, and the Brown Action was certified as a class action on August 24, 1998.

An order issued on March 9, 1999, outlined the notice process to class members, stating that class counsel would mail notices by May 1, 1999, and publish a summary notice by May 10, 1999. The order required exclusion requests to be postmarked by June 1, 1999, which later proved unrealistic. Plaintiffs in the Jama Action identified clients wishing to opt out via letters in 1999 but did not adhere to the specified exclusion process. They now seek to amend the March 9 order to extend the exclusion deadline or adopt prior Magistrate Judge orders regarding their exclusion requests. The Brown Action plaintiffs and Esmor oppose this motion, advocating for the dismissal of the Jama Action complaint and insisting that the Jama plaintiffs litigate their claims within the class action.

Despite the failure to comply with the original exclusion process, the court will amend the March 9 order to allow opt-outs for those Jama and DaSilva plaintiffs identified during discovery, provided their counsel has submitted written evidence of their exclusion wishes to Brown Action counsel.

The Jama Action complaint was filed on June 16, 1997, with plaintiffs' counsel actively pursuing litigation despite facing multiple motions to dismiss based on various legal grounds, including the Alien Tort Claims Act and the Federal Tort Claims Act. Plaintiffs engaged in extensive discovery processes, including interrogatories and depositions, and reached a settlement with the United States Immigration and Naturalization Service, one of the defendants. A significant challenge was maintaining communication with their clients, who were immigrants detained for deportation. Many clients were relocated to different detention facilities or deported without reliable communication means. 

In addition, issues arose from a March 9, 1999 order regarding notice to class members in the Brown Action, where only 1,172 out of approximately 1,625 individuals detained at the Esmor facility could be contacted, and 922 notices were returned as undeliverable. This raised concerns about the presumption of receipt for those whose notices were not returned, potentially affecting their awareness of the class action. The lack of reliable communication necessitates further inquiry to identify which class members received notice and can be located for settlement purposes. The ability to proceed with the Brown Action as a class action is contingent on this information, as a fixed sum settlement may not equitably address the interests of all class members if many are unreachable. Counsel in the Jama Action faced similar communication challenges, making it difficult to gather necessary facts for their case after initial contact.

The processing of the case and the ability to obtain opt-out requests from the Brown Action class were significantly impacted by practical issues. The Jama Action complaint was filed in June 1997, with defense motions resolved in 1998, coinciding with the Brown Action's transfer to court. The Brown Action class was certified on August 24, 1998, and a class notice order was signed on March 9, 1999, establishing a June 1, 1999 deadline for opt-outs. Notice was mailed to 1,172 potential class members before the May 1, 1999 deadline, although the notice period was deemed insufficient. Summary notice was published in USA Today on May 10, 1999, but no opt-out requests were submitted by the Jama Action plaintiffs by the deadline. 

On July 16, 1999, Jama Action counsel confirmed in a letter their clients' exclusion from the Brown Action class and requested a 120-day extension for certain plaintiffs to opt out. Subsequently, on November 19, 1999, Jama Action counsel indicated that one plaintiff wished to opt out. A conference held on that date addressed the status of opt-outs and discovery issues, resulting in an order that required DaSilva and Jama counsel to provide last known addresses for out-of-contact plaintiffs by December 31, 1999. Class counsel was to send Opt-Out Forms to these plaintiffs by January 7, 2000, with a February 7, 2000 deadline for their return; failure to return the form would result in being deemed a member of the Brown plaintiff class. Further submissions for remaining plaintiffs were to be required later, with similar consequences for non-compliance.

Provisions modified the March 9, 1999 court order by requiring class counsel to mail class notices and opt-out forms to DaSilva and Jama Action plaintiffs by January 7, 2000, especially those not in contact with their counsel. Plaintiffs receiving the opt-out forms who did not return them by February 7, 2000, would be considered members of the Brown Action class. The court would later mandate opt-out submissions for remaining plaintiffs. Both Esmor defendants and Brown Action plaintiffs claimed the Magistrate Judge lacked jurisdiction for this modification, yet no party appealed, and actions were taken in accordance with the order. On December 22, 1999, Jama Action counsel provided the last known addresses of plaintiffs, noting reestablished contact with Sarah Yetteh Yower, who wished to opt out. The letter listed several plaintiffs’ addresses, primarily located in jails or outside the U.S. Over the next three years, consolidated discovery occurred across the three actions. Magistrate Judge Hedges did not set a date for formal opt-out submissions as required by his December 30, 1999 order. Jama Action counsel informed Brown Action counsel of individuals wishing to opt out in previous letters, which did not comply with the March 9 order. The case was transferred to Magistrate Judge Wigenton in January 2003, who signed an order on February 10, 2003, requiring Jama Action plaintiffs to complete opt-out requests by February 20, 2003.

Jama Action counsel communicated objections to Magistrate Judge Wigenton regarding an order demanding unredacted retainer agreements with clients. Following receipt of a letter addressing the opt-out status of the Jama plaintiffs from Esmor’s counsel, the latter expressed concerns over the delay in resolving whether the Jama and DaSilva plaintiffs had properly opted out of the Brown class action. Esmor's counsel highlighted the implications of this delay, questioning the viability of the Jama and DaSilva claims and the necessity of defense expenditures over the past three years.

On March 5, 2003, Magistrate Judge Wigenton convened a conference to discuss the opt-out issue. Jama Action counsel confirmed possession of opt-out forms for nine clients. The judge clarified that the plaintiffs' status would not be influenced by perceptions of compliance with a prior order. Subsequently, Jama Action counsel provided the opt-out forms to Brown Action counsel, effectively marking the opt-out delivery date as previously left open.

Magistrate Judge Wigenton issued a new order on March 5, 2003, superseding the February 10 order. It mandated that Jama and DaSilva counsel provide proof of their clients’ opt-out wishes by February 20, 2003, including signed forms and optionally client retainer agreements. An additional paragraph, which extended the opt-out deadline for clients in Africa to March 20, 2003, was stricken from the order, creating ambiguity regarding the exceptions mentioned in the order.

Opt-out proofs were due by February 20, per a March 5, 2003 order, although this date had passed. Magistrate Judge Wigenton confirmed that nine opt-outs from the Jama Action plaintiffs would be recognized, a ruling not appealed by the Esmor or Brown Action defendants. Despite this, both defendants continued to argue that the Jama Action plaintiffs had no valid opt-outs and should participate only as class members in the Brown Action. In response, the Jama Action plaintiffs filed a motion seeking to affirm the validity of previous orders related to opting out, establish the opt-out submission date as per the Magistrate Judges' orders, and modify the original March 9, 1999 order regarding opt-out provisions.

The Esmor Defendants and counsel for the Brown plaintiffs opposed this motion, claiming it was unprecedented, prejudicial, and not aligned with legal requirements. They argued that Jama plaintiffs should be dismissed from their case to join the Brown class, which was intended for their claims. The Esmor Defendants cited established legal principles indicating that potential class members can only opt out before the class action progresses significantly and are bound by the court-approved notice procedure if they fail to do so. They also noted that extending the opt-out period requires proving "excusable neglect," which includes factors such as potential prejudice to nonmovants and the length and reason for any delay. The Esmor Defendants expressed concern that a lenient interpretation of excusable neglect could undermine class action settlements and claimed that the Jama plaintiffs' high settlement demands had disrupted settlement negotiations related to the Brown Action.

The relevance of the Esmor Defendants’ legal principles is questioned in the context of maintaining the Brown Action as a class action. The Esmor Defendants filed certification of publication and mailing class notice on July 19, 1999, which revealed 1,625 individuals detained at Esmor facilities. Notices were sent to 1,172 detainees using INS records, with additional notices directed to 680 detainees through their attorneys. However, 922 of the mailed notices were returned as undeliverable, raising concerns about the effectiveness of the notice process. The presumption that mailed notices are received is challenged due to the detainees' transfers and circumstances, complicating confirmation of receipt, especially for notices sent to attorneys. There was a lack of consultation with attorneys from the Jama Action, who had been involved for two years, leading to an inadequate opt-out deadline and suggesting that most class members likely did not receive notice. Unlike typical class actions, there is no institutional lead plaintiff in this case, placing greater reliance on the Jama Action counsel to represent the class's interests. The Esmor Defendants and Brown Action plaintiffs are collaborating to invalidate opt-outs from the Jama Action, arguing that a unified class action is more likely to achieve a settlement.

A class settlement without opt-outs would protect the Esmor Defendants from further liability to class members, but only a few of the 1,625 detainee members may be locatable to receive any settlement funds. Class counsel would be guaranteed payment from the court fund, raising concerns about the viability of the settlement given the limited number of locatable members. Identifying class members who can be located is the first step to determining whether the Brown Action can continue as a class action and what kind of settlement would be appropriate. Dismissing the claims of locatable former detainees would be impermissible.

Regarding the March 9, 1999 order, it is assumed the Brown Action will continue as a class action, supporting the motion to allow Jama Action plaintiffs to opt out. The plaintiffs have diligently pursued their claims for two years, and the lack of consultation with their counsel before the consent order resulted in an inadequate opt-out period. Communication difficulties with class members hindered the notification process, leading to a majority not receiving notice, and Jama Action counsel struggled to obtain opt-out documentation from clients. 

Both Esmor Defendants' and other plaintiffs' counsel acknowledged these challenges and worked with Magistrate Judge Hedges to adjust the opt-out provisions of the March 9, 1999 order. This resulted in an order requiring Jama and DaSilva Action counsel to provide last known addresses of uncontactable plaintiffs to ensure notice. Failure to opt out would classify those individuals as class members. On July 16, 1999, Jama Action counsel informed Brown Action counsel of nine opt-out plaintiffs, and by December 22, 1999, they provided names and addresses of plaintiffs with whom they had lost contact. Despite discovery progressing without a formal opt-out date, at a March 5, 2003 conference, Brown Action and Esmor Defendants' counsel claimed it was too late to set a date for opt-out submissions, arguing that the Jama Action plaintiffs did not meet the technical requirements to opt out, which could lead to their dismissal.

Magistrate Judge Wigenton completed the procedural requirements set forth in Magistrate Judge Hedges’s December 30, 1999 order, which allowed opt-out forms to be effective upon submission at that time. While it is acknowledged that the Magistrate Judges may not have had jurisdiction to modify the March 9, 1999 order, there were no objections from any parties regarding the December 30 procedures, which all parties followed. The Jama Action plaintiffs are not considered negligent, excusable or otherwise, as they acted in accordance with the order accepted by all counsel involved. The excusable neglect factors favor the Jama Action plaintiffs despite claims from the Esmor Defendants of severe prejudice due to an extension of the opt-out deadline. The Esmor Defendants highlighted that Jama counsel had only recently disclosed non-compliance with the March 1999 order, but evidence shows that Esmor counsel were aware of the opt-out situation as early as November 1999. By December 22, 1999, the identities of the opting-out Jama plaintiffs were known to all parties. There were no surprises, and the case progressed normally, despite complexities arising from the plaintiffs' scattered locations. The Esmor Defendants argued that the Jama Action delays settlement of the Brown Action, yet the main barrier to settlement is uncertainty about resolving it on a class basis. Although technical compliance with the March 9 order was delayed for almost four years, no objections were raised regarding the proceedings established by Magistrate Judge Hedges, and all relevant parties were identified well in advance of the formal compliance deadline in March 2003. This delay was deemed reasonable under the circumstances.

The Jama Action plaintiffs' motivations for their legal actions are clarified, highlighting parallels with challenges faced in the Brown Action class action. Jama Action counsel referenced Magistrate Judge Hedges's December 30, 1999 order, which all parties accepted, indicating good faith in their actions. The court grants the Jama Action plaintiffs' motion to amend the March 9, 1999 class notice order, allowing designated plaintiffs to opt-out of the Brown Action and recognizing prior communications regarding opt-outs from the DaSilva Action. The court will issue guidelines for the Brown Action counsel to verify the receipt of class notices by plaintiffs. 

Key orders include: 
1. Amending the opt-out deadline to March 20, 2003, and accepting requests even without a witness signature.
2. Validating opt-out requests from specific Jama Action plaintiffs.
3. Recognizing opt-outs from the Da Silva plaintiffs submitted before the deadline.
4. Scheduling a hearing on June 23, 2003, to assess the locatability of class plaintiffs. 

The Esmor Defendants argue that only one late opt-out notice was fully completed, but the court's prior order only requires the plaintiff's name and address for exclusion, making the absence of additional signatures irrelevant.