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Johnson v. Jessup

United States District Court, M.D. North Carolina

March 31, 2019

SETI JOHNSON and MARIE BONHOMME-DICKS, on behalf of themselves and those similarly situated, and SHAREE SMOOT and NICHELLE YARBOROUGH, on behalf of themselves and those similarly situated, Plaintiffs,
v.
TORRE JESSUP, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles, Defendant.

          MEMORANDUM OPINION AND ORDER

          THOMAS D. SCHROEDER, UNITED STATES DISTRICT JUDGE

         This civil action arises out of the revocation of Plaintiffs' North Carolina driver's licenses, pursuant to N.C. Gen. Stat. § 20-24.1(a)(2), because of Plaintiffs' failure to pay court fines and costs for motor vehicle violations. Plaintiffs seek declaratory and injunctive relief against Defendant Torre Jessup, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles (“DMV”), for enforcing section 20-24.1(a)(2) against them in alleged violation of their equal protection and due process rights under the Fourteenth Amendment to the United States Constitution. Specifically, Plaintiffs - who have limited financial means - claim that it is unconstitutional for the DMV to revoke their driver's licenses for failure to pay fines and costs without first affirmatively determining that they have the ability to pay.

         Before the court are the Commissioner's motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) (Doc. 46) and Plaintiffs' motions for class certification pursuant to Rule 23(b)(2) (Doc. 36) and preliminary injunction pursuant to Rule 65 (Doc. 38). For the reasons set forth below, the Commissioner's motion for judgment on the pleadings will be granted in part and denied in part, Plaintiffs' motion for class certification will be granted, and Plaintiffs' motion for preliminary injunction will be denied.

         I. BACKGROUND

         Like many states, North Carolina has enacted statutes directing the revocation of driver's licenses for failure to pay fines and costs imposed for traffic violations. The statutory scheme works as follows: North Carolina courts “must report” to the DMV the name of a traffic defendant who “fail[s] to pay a fine, penalty, or costs within 40 days of the date specified in the court's judgment.” N.C. Gen. Stat. § 20-24.2(a)(2). Upon receipt of this notice, the DMV “must revoke” the traffic defendant's driver's license indefinitely. Id. § 20-24.1(a). Revocation is accomplished through the DMV's issuance of a “[r]evocation order[]” to the traffic defendant that becomes “effective on the sixtieth day after the order is mailed or personally delivered to the person.” Id.

         Unlike some states, North Carolina provides a procedure by which traffic defendants can avoid or undo license revocation by showing that their failure to pay is no fault of their own.[1] Section 20-24.1(b)(4) states that a traffic defendant may “demonstrate[] to the court that his failure to pay the penalty, fine, or costs was not willful and that he is making a good faith effort to pay or that the penalty, fine, or costs should be remitted.” If the court determines that the traffic defendant has made a sufficient showing, the court notifies the DMV; upon receipt of this notice, the DMV is required to rescind any revocation order (if the order is pending but not yet in effect) or restore the traffic defendant's license (if the revocation order has already gone into effect). Id. § 20-24.1(b), (c). Moreover, section 20-24.1(b1) expressly provides an opportunity for traffic defendants to address their ability to pay: “A defendant must be afforded an opportunity for a trial or a hearing within a reasonable time of the defendant's appearance . . . [u]pon motion of [the] defendant.” The revocation orders the DMV issues to traffic defendants cite to section 20-24.1 but do not mention any of its provisions or otherwise refer to the ability-to-pay exception. (Doc. 35 ¶ 32.)

         Named Plaintiffs Nichelle Yarborough and Sharee Smoot are low-income North Carolinians whose licenses have been suspended by the DMV for failure to pay fines and costs. (Docs. 5, 41.) Named Plaintiffs Seti Johnson and Marie Bonhomme-Dicks are low-income North Carolinians who currently owe fines and costs for traffic violations, and who are in imminent danger of license revocation.[2] (Docs. 4, 40, 63.) The named Plaintiffs claim that they are unable to pay the fines and costs imposed on them and that neither the state court nor the DMV has inquired into their ability to pay.[3](Doc. 35 at 1-6.)

         The named Plaintiffs are not alone. In the three-year period prior to the initiation of this lawsuit, about 55, 000 traffic defendants received a revocation order but made their payments prior to the revocation date. (Doc. 62.) About 68, 000 traffic defendants failed to make their payments by the revocation date, had their licenses revoked, but eventually made the payments sometime thereafter. (Id.) About 63, 000 traffic defendants never made their payments, and their licenses remain revoked. (Id.)

         On May 30, 2018, Johnson and Smoot initiated this lawsuit. (Doc. 1.) Plaintiffs claim that the DMV's enforcement of section 20-24.1 violates the Fourteenth Amendment in three ways: (1) by violating their equal protection and substantive due process right not to be penalized for non-payment without the State first determining that they were able to pay and willfully refused; (2) by violating their procedural due process right to a hearing on ability to pay prior to revocation; and (3) by violating their procedural due process right to adequate notice. (Doc. 35 at 32-38.)

         Plaintiffs contemporaneously moved for class certification (Doc. 3) and for preliminary injunction (Doc. 2), but later withdrew them in order to file an amended complaint (Doc. 35) on August 7, 2018, adding Yarborough and Bonhomme-Dicks as Plaintiffs. Plaintiffs then filed second motions for class certification (Doc. 36) and for preliminary injunction (Doc. 38). The Commissioner answered the amended complaint (Doc. 43) and moved for judgment on the pleadings (Doc. 46). On March 13, 2019, the court held a hearing on all outstanding motions, which are ready for decision.

         II. ANALYSIS

         A. The Commissioner's Motion for Judgment on the Pleadings

         The legal standard governing motions for judgment on the pleadings is the same as that employed on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable, ” demonstrating “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556-57).

         1. Subject Matter Jurisdiction

         The Commissioner first argues that the court lacks subject matter jurisdiction over Plaintiffs' claims under the Rooker-Feldman doctrine.[4]Plaintiffs contend that the Commissioner reads the doctrine too broadly and that it does not apply in this instance.

         The Rooker-Feldman doctrine - so named because of the Supreme Court's foundational decisions in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) - states that federal district courts may not sit in review of state court decisions. Although the doctrine was construed expansively in the decades following Rooker, the Supreme Court has since clarified the “narrow” circumstances in which it is applicable: “cases brought by state-court losers complaining of injuries caused by state-court ("pageset": "S93) judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Where a plaintiff “is not challenging the state-court decision, the Rooker-Feldman doctrine does not apply.” Davani v. Va. Dep't of Transp., 434 F.3d 712, 718 (4th Cir. 2006).

         In the instant case, Plaintiffs do not challenge any judgment of a North Carolina court. The Commissioner's argument to the contrary is based on a misunderstanding of the statutory scheme at issue, as evidenced by his repeated assertion that Plaintiffs are “asking this Court to prohibit DMV from complying with license revocation orders issued by North Carolina courts.” (Doc. 47 at 11.) It is simply untrue that North Carolina courts issue “license revocation orders” under the statutory scheme at issue here. Instead, state courts “report to the [DMV] the name of any person charged with a motor vehicle offense” who fails to pay a traffic violation fine or cost. N.C. Gen. Stat. § 20-24.2(a) (emphasis added). Upon receiving that “notice from [the] court, ” it is the DMV that issues a “[r]evocation order[], ” which it then “mail[s] or personally deliver[s] to the person.” Id. § 20-24.1(a) (emphasis added).

         The only state court judgment relevant to this process is the underlying imposition of a traffic violation fine or cost, and Plaintiffs expressly do not challenge that judgment. (Doc. 51 at 12.) Plaintiffs' claims do not in any way implicate the soundness of the underlying traffic conviction and pecuniary imposition. A finding by this court that the DMV cannot constitutionally revoke Plaintiffs' driver's licenses for failure to pay a court-ordered fine or cost without first determining their ability to pay would not imply that the state court should not have imposed the fine or cost in the first place. See Stinnie v. Holcomb, 355 F.Supp.3d 514, 524 (W.D. Va. 2018) (“Plaintiffs do not contest their convictions or the fines and costs assessed by the state court. Therefore, the outcome of this case will not affect those judgments.” (citation omitted)).[5] Because a ruling for Plaintiffs would not involve this court's “review and rejection” of any state court judgment, Exxon, 544 U.S. at 284, the Rooker-Feldman doctrine does not bar Plaintiffs' claims. See Stinnie, 355 F.Supp.3d at 523-24; Fowler v. Johnson, No. 17-11441, 2017 WL 6379676, at *3 (E.D. Mich. Dec. 14, 2017) (“Plaintiffs are not . . . challenging the imposition of any fines, costs, or assessments . . . . Instead, Plaintiffs are challenging Defendant's revocation of their driver's licenses for failing to pay their traffic debt without consideration of their willfulness or ability to pay. The Rooker-Feldman doctrine does not extend to Plaintiffs' claims.”), appeal filed, No. 17-2504 (6th Cir. Dec. 19, 2017).

         Consequently, the Commissioner's reliance on Rooker-Feldman to avoid this litigation is misplaced.

         2. Sovereign Immunity

         The Commissioner next makes perfunctory arguments that Plaintiffs' claims are barred by the Eleventh Amendment: first, that Plaintiffs' claims impermissibly require the court to review past state acts that do not amount to ongoing constitutional violations, and second that the Commissioner himself is not sufficiently connected with the allegedly unconstitutional acts to be a proper defendant under Ex Parte Young, 209 U.S. 123 (1908). Both contentions are unpersuasive.

         The Eleventh Amendment generally “confirms the sovereign status of the States by shielding them from suits by individuals absent their consent.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). However, the Eleventh Amendment excepts from its bar “suits for prospective injunctive relief against state officials acting in violation of a federal law.” Id. (citing Ex Parte Young, 209 U.S. 123). This exception has two components: whether “(1) the violation for which relief is sought is an ongoing one, and (2) the relief sought is only prospective.” Republic of Paraguay v. Allen, 134 F.3d 622, 627 (4th Cir. 1998). As to the first, a plaintiff must merely show that he is “presently experienc[ing the] harmful consequences of [the State's] past conduct” in order to properly claim an “ongoing violation[] of federally protected constitutional rights” sufficient to satisfy Ex Parte Young. Id. at 628; see also Coakley v. Welch, 877 F.2d 304, 306-07 & n.2 (4th Cir. 1989) (finding that a plaintiff's claim that he had been unconstitutionally fired alleged an “ongoing violation” because his wrongful termination “continues to harm him by preventing him from obtaining the benefits of [state] employment”). Furthermore, the answer to the second inquiry tends to drive the answer to the first, as “the issue of whether a violation is ‘ongoing' [is] related to the issues of whether prospective relief is appropriate, or whether the requested relief would operate instead as an illegitimate award of retroactive damages.” Coakley, 877 F.2d at 307 n.2. Ex Parte Young separately requires an officer to have “some connection with the enforcement of the [allegedly unconstitutional] act, ” 209 U.S. at 157, before he may be sued; the officer must have some “proximity to and responsibility for the challenged state action, ” as opposed to mere “general authority to enforce the laws of the state.” S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324, 333 (4th Cir. 2008) (emphasis and brackets omitted) (quoting Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001)).

         Plaintiffs easily satisfy these requirements. Although the DMV's revocation of some Plaintiffs' driver's licenses took place in the past, those Plaintiffs continue to experience the harmful consequences of that action so long as their licenses remain revoked. Thus, although the DMV is “no longer giving [those Plaintiffs] daily attention, ” its allegedly unconstitutional license revocations “continue[] to harm” those Plaintiffs by “preventing [them] from obtaining the benefits” they would otherwise enjoy as license-holders. Coakley, 877 F.2d at 807 n.2; see also Id. (“Cases from other circuits, as well as [the Fourth Circuit], suggest that few, if any, suits are barred for failure to allege an ‘ongoing violation' . . . .”).[6] And the Commissioner's argument that he is not sufficiently connected to the enforcement of section 20-24.1(a)(2) to be a proper defendant under Ex Parte Young is based on the same mistaken argument addressed in the court's Rooker-Feldman analysis above: that “[t]he DMV simply complies with revocation orders issued by state courts.” (Doc. 47 at 13-14.) As previously explained, North Carolina courts do not issue driver's license revocation orders for failure to pay traffic violation fines and costs;[7] the DMV, which the Commissioner heads, issues those revocation orders. See N.C. Gen. Stat. § 20-24.1(a); Torre Jessup: DMV Commissioner, North Carolina Department of Transportation (Feb. 5, 2019), https://www.ncdot.gov/about-us/our-people/leadership/Pages/torre-jessup.aspx (noting that, “[a]s commissioner, Torre Jessup oversees the daily operations of the N.C. Division of Motor Vehicles, including . . . driver licenses”). As a result, the Eleventh Amendment presents no bar to Plaintiffs' claims.[8]

         3. Equal Protection and Substantive Due Process

         Turning to the merits, the Commissioner moves for judgment on the pleadings on Plaintiffs' claim that revocation of their driver's licenses for failure to pay fines and costs without first affirmatively determining their ability to pay violates their equal protection and substantive due process rights under the “fundamental fairness” doctrine enunciated in cases like Bearden v. Georgia, 461 U.S. 660 (1983). The Commissioner argues that the fundamental fairness doctrine does not apply to the statutory scheme at issue in this case, which should be upheld instead under the default rational basis standard.

         It has long been black-letter law that, absent the involvement of a suspect classification or fundamental right, statutes challenged under the Fourteenth Amendment's equal protection or substantive due process guarantees are upheld so long as they have a “rational basis.” See U.S. v. Caroline Prods. Co., 304 U.S. 144, 152 & n.4 (1938); Colon Health Ctrs. Of Am., LLC v. Hazel, 733 F.3d 535, 547-48 (4th Cir. 2013). The bar for surviving rational basis scrutiny is modest; as long as there is “any reasonably conceivable state of facts that could provide a rational basis” for the enactment, the statute must be upheld. F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993).

         Nevertheless, beginning with a plurality opinion in Griffin v. Illinois, 351 U.S. 12 (1956) and running through (and beyond) a more definitive treatment in Bearden, the Supreme Court has held that “[d]ue process and equal protection principles converge” in some contexts into a constitutional requirement of “fundamental fairness” that calls for courts to make a more “careful inquiry into such factors as the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, and the existence of alternative means for effectuating the purpose.” Bearden, 461 U.S. at 665-66, 673 (internal quotation marks and brackets omitted). In Bearden itself, the Court applied this inquiry to the question of whether state courts could revoke probation and incarcerate an individual for failing to pay a fine or restitution when the individual made bona fide efforts to pay but could not, ultimately holding that incarceration is “fundamentally unfair” in that context unless the state court determines there are no “alternate measures of punishment other than imprisonment . . . adequate to meet the State's interests.” Id. at 672. The only contexts in which the Supreme Court has applied this fundamental fairness doctrine are those in which a state has deprived persons of fundamental rights because of their indigency - specifically, incarcerating them or denying them access to the courts when they cannot make a certain payment. See, e.g., Griffin, 351 U.S. 12 (access to courts); Williams v. Illinois, 399 U.S. 235 (1970) (incarceration); Tate v. Short, 401 U.S. 395 (1971) (incarceration); Bearden, 461 U.S. 660 (incarceration); M.L.B. v. S.L.J., 519 U.S. 102 (1996) (access to courts); see also Tennessee v. Lane, 541 U.S. 509, 522-23 (2004) (referring to “the right of access to the courts” as one of the “basic constitutional guarantees, infringements of which are subject to more searching judicial review”).[9]

         Plaintiffs claim that the fundamental fairness doctrine applies to the statutory scheme at issue in this case, despite the fact that there is no fundamental right or interest at issue, [10] because Bearden in fact stands for the general principle that the Fourteenth Amendment “prohibit[s] the punishment of indigent people simply because of their poverty.” (Doc. 51 at 20.) This construal of Bearden comes perilously close to an argument that courts must apply a higher standard of scrutiny to statutory classifications based on indigency - a principle the Supreme Court has “repeatedly” rejected in favor of rational basis analysis. Harris v. McRae, 448 U.S. 297, 323-24 (1980). More importantly, Plaintiffs have not proffered a single case from the Supreme Court or Fourth Circuit in the sixty-plus years since Griffin in which the fundamental fairness doctrine was applied to an alleged harm not involving fundamental rights or interests.[11] See Mendoza v. Garrett, No. 3:18-cv-01634-HZ, 2018 WL 6528011, at *19 (D. Or. Dec. 12, 2018) (“What all of these cases teach is that the ‘fundamental fairness' principles of due process and equal protection originating in Griffin have been applied when either incarceration or access to the courts, or both, is at stake.”); Fowler, 2017 WL 6379676, at *6-7 (“None of these cases establish . . . that it is fundamentally unfair in a constitutional sense . . . for a state to deprive a person of a property interest - such as a driver's license - because of the person's inability to pay a fine associated with that interest.”). Notably, Bearden itself encouraged courts to impose “alternate measures of punishment other than imprisonment” that would “meet the State's interests” in ways that did not result in incarceration. 461 U.S. at 672. Driver's license revocation is just such an “alternate measure.”[12]

         In sum, contrary to Plaintiffs' contention, the fundamental fairness doctrine does not apply to the indigency claim here, where no fundamental right or interest is at stake. This leaves the court to apply rational basis analysis, and section 20-24.1 easily evinces the “constitutionally minimal level of rationality” required. Van Der Linde Housing, Inc. v. Rivanna Solid Waste Auth., 507 F.3d 290, 295 (4th Cir. 2007). Revocation of driver's licenses for failure to pay traffic violation fines or costs serves, in the Commissioner's words, to “impos[e] a motivation to accomplish what an individual might otherwise be disinclined to do” - here, to pay the fines and costs properly imposed on traffic defendants.[13] (Doc. 47 at 20.) There is no argument that collection of monetary exactions is not a legitimate state interest. Instead, Plaintiffs argue that the DMV sweeps too broadly: that revoking the licenses of all traffic defendants who don't pay their fines and costs irrationally results in the revocation of the licenses of some who cannot pay, and to whom any additional incentive to pay is ineffective.[14] But the rational basis test does not require laws to be narrowly tailored to accomplish the State's ends. See Van Der Linde, 507 F.3d at 295 (“The ‘rational' aspect of rational basis review . . . is not an invitation to scrutinize . . . the instrumental rationality of the chosen means (i.e., whether the classification is the best one suited to accomplish the desired result).”). “Neither may a policy's rationality be judged on the basis of its wisdom, fairness, or logic (or lack thereof).” Id. at 293-94. Since there is a “reasonably conceivable state of facts, ” Beach, 508 U.S. at 313, under which section 20-24.1(a)(2) provides some traffic defendants with an efficacious incentive to pay fines and costs, the law survives rational basis review.

         Because the fundamental fairness doctrine does not apply and section 20-24.1 has a rational basis, Plaintiffs have not plausibly alleged an equal protection and substantive due process claim. Accordingly, the court will grant the Commissioner judgment on the pleadings as to that claim. The Commissioner presented no merits argument for judgment on the pleadings as to Plaintiffs' procedural due process claims, however, and for that reason those claims survive at this time.[15]

         B. Plaintiffs' Motion for Class Certification and Appointment of Class Counsel

         Plaintiffs move to certify two classes under Federal Rule of Civil Procedure 23(a) and (b)(2): the “Revoked Class, ” composed of everyone whose driver's license has been revoked by the DMV for failure to pay a traffic violation fine or cost, and the “Future Revocation Class, ” composed of everyone whose driver's license will be so revoked in the future. Plaintiffs also move for appointment of class counsel under Rule 23(g). The Commissioner opposes certification, challenging whether several of the prerequisites to certification have been met.

         To be certified, a putative class must first satisfy the four requirements set out in Rule 23(a): “(1) numerosity of parties; (2) commonality of factual and legal issues; (3) typicality of claims and defenses of class representatives; and (4) adequacy of representation.” Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 423 (4th Cir. 2003). Next, the putative class must show that it is one of the three types of classes described in Rule 23(b). Here, Plaintiffs assert that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). Nevertheless, district courts retain “broad discretion” in deciding whether a class should be certified and how that class should be defined. Roman v. ESB, Inc., 550 F.2d 1343, 1348 (4th Cir. 1976). “Merits questions may be considered to the extent - but only to the extent - that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013). Otherwise, “[a]n evaluation of the probable outcome on the merits is not properly part of the certification decision.” Id. (quoting 2003 Advisory Committee Note on Rule 23(c)(1)).

         The Commissioner does not contest the adequacy of representation or the putative class's Rule 23(b)(2) categorization, and the court independently finds that these requirements are met. The named Plaintiffs do not appear to have interests that conflict with those of the class and have each explained their commitment to the litigation. See (Docs. 4, 5, 40, 41, 63). While Plaintiff Smoot appears to have paid her traffic fines and costs, Plaintiff Yarborough has not and can adequately represent the proposed Revoked Class. Plaintiffs' counsel are adequate under Rule 23(a)(4) for the same reasons they satisfy the Rule 23(g) standard, as discussed below. Finally, Rule 23(b)(2) - which “was created to facilitate civil rights class actions, ” Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 330 n.24 (4th Cir. 2006) - is satisfied because Plaintiffs seek injunctive and declaratory relief and challenge the Commissioner's class-wide enforcement of section 20-24.1(a)(2).

         The Commissioner contests numerosity, commonality, and typicality. Each will be addressed in turn.

         1. Numerosity

         “There is no mechanical test for determining whether” the No. of potential plaintiffs in a given action is sufficient to meet Rule 23(a)(1)'s requirement that joinder would be “impracticable.” Kelley v. Norfolk & W. Ry. Co., 584 F.2d 34, 35 (4th Cir. 1978) (per curiam). Instead, the numerosity determination “depends on the particular facts of each case.” 7A Charles Alan Wright et al., Federal Practice and Procedure § 1762 (3d ed. 2018) (also noting that “no arbitrary rules regarding the size of classes have been established by the courts”). The Fourth Circuit has previously certified classes of as few as eighteen plaintiffs. See Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass'n, 375 F.2d 648, 653 (4th Cir. 1967); see also Dameron v. Sinai Hosp. of Baltimore, Inc., 595 F.Supp. 1404, 1408 (D. Md. 1984) (“A class consisting of as few as 25 to 30 members raises the presumption that joinder would be impractical.”).

         In this case, the Commissioner's argument is not so much that any specific No. advanced by Plaintiffs is insufficient, but that Plaintiffs' numerosity evidence is too speculative. This argument attacks Plaintiffs' reliance in their opening brief on a September 26, 2017 email from a DMV employee stating that “[t]he total No. of Failure to Pay is 436, 050” (Doc. 6-9), on the basis that the email “does not explain the time frame of these suspensions, or even if the [number] is referring to individuals” (Doc. 48 at 7). The Commissioner goes on to criticize Plaintiffs for omitting any evidence concerning how many of these failure-to-pay license revocations involve traffic defendants who “are low income individuals.” (Id.)

         The Commissioner's concerns, however, are allayed by his own evidence. On March 13, 2019, the Commissioner filed the affidavit of a North Carolina Department of Transportation employee stating that in the three years prior to the lawsuit's initiation, 62, 788 traffic defendants failed to pay their traffic violation fines and costs and have therefore had their driver's licenses revoked.[16] (Doc. 62.) This evidence is confined to a relevant timeframe and clearly refers to individual traffic defendants. The Commissioner's protest that Plaintiffs have not supported their “allegation that the proposed Revoked Class members are low income individuals” (Doc. 48 at 7) is an attack on a straw man; Plaintiffs have never made such an allegation. Plaintiffs' proposed classes consist of “all individuals” whose driver's licenses have been or will be revoked under section 20-24.1(a)(2). Even looking only to the Commissioner's evidence, then, Plaintiffs' proposed Revoked Class consists of at least 62, 788 individuals. As to the proposed Future Revocation Class, the court may reasonably infer from the size of the Revoked Class that it too is large. See 1 William B. Rubenstein, Newberg on Class Actions § 3:13 (5th ed. 2018) (courts may use available evidence to “make commonsense assumptions regarding the No. of putative class members”). This evidence is sufficient to show that Rule 23(a)(1)'s numerosity requirement is met.

         2. Commonality

         Rule 23(a)(2) “requires the plaintiff[s] to demonstrate that the class members have suffered the same injury” in the sense that “[t]heir claims . . . depend upon a common contention, ” the determination of which “will resolve an issue that is central to the validity of each one of the claims.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). “[T]his provision does not require that all the questions of law and fact raised by the dispute be common, ” just that any “dissimilarities between the claims [do not] impede a common resolution.” Wright et al., supra, § 1763.

         The Commissioner does not address the seven common questions of law and fact listed in Plaintiffs' opening brief;[17] instead, he argues that the proposed class members have not “suffered the same injury” as Plaintiffs:

Plaintiffs' [sic] complain that without a driver's license, they are forced to choose between going to work, getting food for the family, attending medical appointments, driving their kids to school, or driving on a revoked license. While the Plaintiffs' Declarations may provide evidence of their injuries, they do not provide evidence that any No. of other people are facing the same injuries.

(Doc. 48 at 17-18 (citation and emphasis omitted).) Once again, the Commissioner misunderstands Plaintiffs' claims. The core injury Plaintiffs assert is the allegedly unconstitutional deprivation of their driver's licenses under section 20-24.1, not the practical effects of this revocation on their personal lives. While Plaintiffs do provide a litany of additional allegations regarding the personal hardships attendant to license revocation in what may be an attempt to underscore the seriousness and sympathetic nature of their claims, these additional allegations are not the constitutional injury Plaintiffs assert. In the court's view, the DMV's enforcement of section 20-24.1 against the named Plaintiffs and proposed class members provides sufficient common questions of fact and law on which to sustain a constitutional class action.

         3. Typicality

         Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” “The essence of the typicality requirement is captured by the notion that ‘as goes the claim of the named plaintiff, so go the claims of the class.'” Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006) (quoting Broussard v. Meineke Discount Muffler Shops, Inc.,155 F.3d 331, 340 (4th Cir. 1998)). In order to determine whether a named plaintiff's “claims or defenses” are typical of those of the proposed ...


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