The opinion of the court was delivered by: Debevoise, Senior District Judge
Plaintiffs, the National Association for the Advancement of Colored People ("NAACP"), the Newark Branch of the NAACP, the New Jersey State Conference of the NAACP, Keith Reeves, Allen Wallace, Lamara Wapples, and Altarik White (collectively, "Plaintiffs") filed this action on April 10, 2007 against North Hudson Regional Fire & Rescue ("NHRFR") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49. Plaintiff Keith Reeves has been dismissed from the case. On March 26, 2008, NHRFR filed a motion to bar class certification, and Plaintiffs cross-moved, on April 9, 2008, for class certification and for a preliminary injunction. At the May 5, 2008 oral argument, the court determined that the motions were made prematurely and that prudence required waiting to decide them until more facts came to light. On August 13, 2008, without further communication with the court about the existing, stayed motions, the Plaintiffs filed an amended motion to certify the putative class of plaintiffs, and to bifurcate the action into two trials -- one for liability and injunctive relief, and one for damages. On October 6, 2008, the court heard oral argument on the motion for class certification and bifurcation. At that hearing, the attorneys for both the Defendant and the Plaintiffs represented to the court that they had just obtained data from the Department of Personnel ("DOP") which was pertinent to the motion for class certification, that they had sent that data to their respective experts for analysis, and that they would submit further papers to the court regarding that data. On November 25, 2008, having heard nothing from the parties, the court ordered that the pending motions for class certification, bifurcation and preliminary injunction be administratively terminated. On December 23, 2008, the Plaintiffs filed an amended motion for class certification and bifurcation and re-filed the same motion for preliminary injunction that they had filed on April 7, 2008. On January 13, 2009, the Plaintiffs re-filed the same motion for class certification and bifurcation that they had filed on December 23, 2008 (with a change only to the signature block and date) and filed an amended motion for preliminary injunction. NHRFR opposes Plaintiffs' motions. For the following reasons, Plaintiffs' motion for class certification is granted; Plaintiffs' motion for bifurcation is dismissed as premature; and Plaintiffs' motion for preliminary injunction is granted to the extent that NHRFR is enjoined from hiring candidates from its current DOP list until it obtains a list from the DOP that expands the residency requirement to include Hudson, Essex and Union counties.
The NHRFR is a consolidated municipal fire department and political subdivision of the State of New Jersey that serves several communities in North Hudson County. The NHRFR was formed in 1998 in accordance with the Consolidated Municipal Services Act, N.J. Stat. Ann. 40:48B-1, et. seq., and is essentially a consolidation of the former fire departments of Guttenberg, North Bergen, Union City, Weehawken and West New York (collectively, the "Member Municipalities"). Civil service positions such as firefighter are subject to the examination process administered by the DOP. N.J.A.C. 4A:4-1.1. The NHRFR is subject to the New Jersey Civil Service Act, N.J. Stat. Ann. 11A:1-1, et seq., and the rules and regulations promulgated thereunder. See N.J.A.C. 4A:1-1 et seq. As such, to be hired by the NHRFR, a person must apply for and take an examination administered by the DOP. The DOP controls all aspects of the exam, from scheduling to content and scoring. Recently, the DOP administered the firefighter exam in 1999, 2002, 2003, and 2006. Those who take the exam at the same time are ranked on a list based on their test scores on the written, and, sometimes, physical examinations. Based on these scores, the DOP creates eligibility lists from which organizations subject to the New Jersey Civil Service Act, such as the NHRFR, may hire candidates in rank order. N.J.A.C. 4A:4-3.1 & 3.2. When the NHFRF needs to fill a vacancy, it offers the position to the highest ranked person(s) on the list provided to it by the DOP. Passing the DOP test, however, is not the only requirement for inclusion on the NHRFR's list. In order to be placed on the NHRFR's list, a candidate must also live in the Member Municipalities at the time he or she took the test. If the applicant does not live in the Member Municipalities at the time of the administration of the exam, her name will not be placed on the NHRFR's list and, thus, the candidate will not be eligible to be hired by the NHRFR, no matter how high her test score. Plaintiffs allege that this geography-based hiring plan causes discrimination against African-Americans who reside in the southern part of Hudson County and neighboring Essex and Union counties.
As of July 2008, according to the NHRFR's EEO-4 form, the NHRFR had 323 full time employees. Of those employees, two were African American, 64 were Hispanic, 255 were white and two identified as other races. Of the NHRFR's 323 full time employees, 302 were firefighters (or protective service workers). Of these, two were African American, 58 were Hispanic and 240 were white. In 2000, the population of the Member Municipalities was 69.6 percent Hispanic, 22.9 percent white non-Hispanic, and 3.4 percent African American.
B. The Proposed Class and Motions
Plaintiffs seek to pursue their claims in the form of a class-action and propose the following definition for certification:
African Americans who reside or resided in any municipality in Essex, Union, or Southern Hudson County, and who sought or are seeking employment as firefighters or others in positions for which North Hudson Regional Fire & Rescue hires and who have taken and passed an examination where the Department of Personnel requires such an examination.
There are three named plaintiffs currently in this action: Allen Wallace, Lamara Wapples, and Altarik White (collectively, the "Named Plaintiffs"). All three Named Plaintiffs took the DOP exam and wish to be considered for employment by the NHRFR. At the time they took the exam, all of the Named Plaintiffs lived in Essex, Union or Southern Hudson County.*fn1
In addition to class certification, Plaintiffs also seek bifurcation of the trial (to separate adjudication of liability and equitable relief from adjudication of damages) and a preliminary injunction against NHRFR. Plaintiffs ask the court to enjoin NHRFR from "hiring any additional firefighters or other employees" until further order from this court and from "using any list of eligible candidates that is based upon the Defendant's residency requirement."
II. MOTION FOR CLASS CERTIFICATION
Plaintiffs' first motion is for certification of its proposed class. To obtain class action certification, "plaintiffs must establish that all four requisites of Rule 23(a) and at least one part of Rule 23(b) are met." Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 55 (3d Cir. 1994) (citing Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3d Cir. 1974), cert. denied, 421 U.S. 1011 (1975)); Fed. R. Civ. P. 23(a). As the Court of Appeals recently clarified, "the decision to certify a class calls for findings by the court, not merely a 'threshold showing' by a party, that each requirement of Rule 23 is met. Factual determinations supporting Rule 23 findings must be made by a preponderance of the evidence." In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 307 (3d Cir. 2008). Further, "the court must resolve all factual or legal disputes relevant to class certification, even if they overlap with the merits -- including disputes touching on elements of the cause of action." Id. "[T]he court's obligation to consider all relevant evidence and arguments extends to expert testimony, whether offered by a party seeking class certification or by a party opposing it." Id.
Federal Rule of Civil Procedure 23(a) provides:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
The first requirement of Rule 23(a) is "numerosity" -- that "the class is so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). "No minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met." Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001). The Plaintiffs have submitted evidence that there are approximately 850 persons who are members of the putative class. (Decl. of Aimee D. Pringle, Plts.' Reply Br., Ex. 7.) Plaintiffs calculated this number from information supplied by the DOP that included names, addresses and other information regarding persons who had taken the NJ DOP firefighter examination for the test cycles since 1999 (i.e., 1999, 2002, 2003, and 2006). From this data, Plaintiffs isolated the persons who identified themselves as African American and lived in Essex, Union or South Hudson County at the time they took the test. From that list, Plaintiffs deleted the duplicates (persons listed two or more times because they took the exam on two or more dates) and those persons who failed the exam. The final list -- consisting of persons who took and passed the exam in 1999, 2002, 2003 or 2006; who self-identified as African American; and who lived in Essex, Union, or South Hudson County at the time they sat for the test -- contained 872 people.
NHRFR argues that the Plaintiffs have not proven numerosity because "Plaintiffs cannot even prove that the purported class exists." (Def.'s Opp'n Br. at 15.) NHRFR objects that the Plaintiffs did not provide data in support of their allegation that the putative class contains approximately 850 people, and that they did not provide further data regarding what year the putative class members took the test; whether they are still interested in working as firefighters; whether they are still on a current DOP list; and where they live. Plaintiffs have now provided data to support the number of members of the putative class, but it is not necessary to provide the further data identified by NHRFR. The injury alleged by Plaintiffs is that the class members were harmed when they took and passed the DOP test but were limited in their opportunities for employment because of the residency requirement. Plaintiffs' data supports their contention that over 850 African Americans have suffered this alleged harm when they took and passed the test, and it is thus not relevant where these putative class members currently live, whether they are on a current DOP list, etc. Plaintiffs have proven that there are approximately 850 people who fit the definition of the proposed class.
NHRFR also argues that Plaintiffs have not proven that joinder of the members of the proposed class is impracticable. NHRFR cites to Liberty Lincoln Mercury, Inc. v. Ford Marketing Corp., 149 F.R.D. 65, 73-74 (D.N.J. 1993), where the court found that it was practicable to join 123 plaintiffs when all proposed class members were identifiable and filed individual complaints. Although the proposed class members in this case are all identifiable by name, many of their addresses may be unknown given that some took the DOP exam almost ten years ago; further, only the Named Plaintiffs in this case have filed individual complaints. NHRFR also argues that "numerosity may be defeated if the putative class members live close in proximity to each other." (Def.'s Opp'n Br. at 14.) NHRFR cites to Christiana Mortgage Corp. v. Delaware Mortgage Corp., 136 F.R.D. 372, 377-78 (D. Del. 1991), where the district court found that joinder was a feasible alternative to class certification when all 28 members of a proposed class were located within a small geographic region. Even if all of the approximately 850 members of the proposed class here still live in Essex, Union or Southern Hudson County, joinder of over 800 additional plaintiffs would simply be impracticable.
"The concepts of commonality and typicality are broadly defined and tend to merge. Both criteria seek to assure that the action can be practically and efficiently maintained and that the interests of the absentees will be fairly and adequately represented." Baby Neal, 43 F.3d at 56. The two requirements, however, are distinct. Id. "Commonality does not require an identity of claims or facts among class members; instead '[t]he commonality requirement will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class.'" Johnston v. HBO Film Mgmt. Inc., 265 F.3d 178, 184 (3d Cir. 2001) (quoting In re the Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 310 (3d Cir. 1998) and Baby Neal, 43 F.3d at 56). Because the requirement may be satisfied by a single common issue, it is easily met. Baby Neal, 43 F.3d at 56.
Here, the Plaintiffs allege that NHRFR's residency requirement has a disparate impact against African American residents of Essex, Union and Southern Hudson County in violation of Title VII of the Civil Rights Act and the New Jersey Law Against Discrimination.*fn2 This question of law is common to all members of the putative class and is sufficient to meet the requirement of commonality.
NHRFR argues that Plaintiffs cannot establish the commonality or typicality requirements because the Named Plaintiffs' interests are contrary to the rest of the class because they seek special consideration from the court to be hired ahead of any other class members. The Named Plaintiffs, however, have withdrawn any request for such a preference in hiring. (Plts.' Reply Br. at 9.) They seek only to challenge the residency requirement of the NHRFR's hiring practice, which affects all members of the class equally. NHRFR also argues that the "interests" of the class members in the different counties do not align; for example, NHRFR argues that the class members in Southern Hudson County would want the residency requirement to be extended to include Southern Hudson County, but not beyond into Essex or Union because it would create more competition for jobs at NHRFR. These arguments do not in any way diminish the fact that there is a common question of law among all potential class members regarding whether NHRFR's hiring practice violates Title VII; rather, these arguments are more appropriately addressed with respect to the "typicality" requirement and under Rule 23(b), both of which will be discussed below.
"The typicality inquiry is intended to assess whether the action can be efficiently maintained as a class and whether the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees' interests will be fairly represented." Baby Neal, 43 F.3d at 57. "The typicality criterion is intended to preclude certification of those cases where the legal theories of the named plaintiffs potentially conflict with those of the absentees by requiring that the common claims are comparably central to the claims of the named plaintiffs as to the claims of the absentees." Id. "Typicality entails an inquiry whether 'the named plaintiff's individual circumstances are markedly different or . . . the legal theory upon which the claims are based differs from that upon which the claims of other class members will perforce be based.'" Id. at 57-58 (quoting Hassine v. Jeffes, 846 F.2d 169, 177 (3d Cir. 1988)). "Commentators have noted that cases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the varying fact patterns underlying he individual claims." Id. at 58. "[F]actual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory." Id. (quoting Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 923 (3d Cir. 1992)).
In this case, the claims of the Named Plaintiffs, and the legal theories underlying those claims, are the same as the claims of the putative class. Both claim that the NHRFR's hiring practice is discriminatory in that it has a disparate impact on African Americans in violation of Title VII. The Plaintiffs seek an order to preliminarily and permanently enjoin NHRFR from "classifying its applicants for employment and employees by residence or on other selection standards that discriminate or tend to discriminate against African Americans." (Am. Class Action Compl., Dec. 12, 2007, at 8.) The incentives of the Named Plaintiffs are thus the same as those of the proposed class members and the Named Plaintiffs will fairly represent the absentees' interests.*fn3
NHRFR argues that the typicality requirement is not met in this case because the "interests" of the class members in the different counties do not align; for example, NHRFR argues that the class members in Southern Hudson County would want the residency requirement to be extended to include Southern Hudson County, but not beyond into Essex or Union because it would create more competition for jobs at NHRFR.*fn4 Absentees, however, do not have a legitimate interest in advocating for a policy that is discriminatory. Rather, the Plaintiffs' goal, as already presented in their motion for preliminary injunction (discussed below), is to eliminate the residency requirement, which they claim has a disparate impact on African Americans. If the residency requirement is, indeed, a discriminatory hiring practice, its elimination will benefit all class members.
NHRFR also argues that typicality is not met because "not every potential member of the class may want to challenge residency requirements" and that some potential class members may benefit from the residency requirements in other municipalities. (Def.'s Opp'n Br. at 22.) Whether residency requirements in other areas advantage potential class members or violate Title VII, however, is not relevant to this case. Only the residency ...