Opinion
IP 02-0271-C T/K
March 17, 2003
B. Clifford and W. Shepard, Attorney at Law, Indianapolis, IN.
Robert L. Browning, Scopelitis Garvin Light Hanson, Indianapolis, IN.
ENTRY ON MOTION FOR CLASS CERTIFICATION AND MOTION TO WITHDRAW
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
In February of last year the Plaintiff filed this action under the Fair Debt Collection Practices Act (the "Act") alleging that the Defendants violated the Act by sending him a certain collection letter. The Plaintiff's Complaint purports to bring this action on behalf of a class and contains class allegations. On May 21, 2002, the Plaintiff's Motion for Class Certification was filed. The Defendants filed a response brief and the supporting affidavit of Scott G. Hoy, contending that the motion for class certification should be denied because there are only five members of the putative class. The Plaintiff responded, two days later, by filing his Motion to Withdraw Motion for Class Certification, to Strike Class Allegations, and for Order Directing Notice Be Given to Class ("Motion to Withdraw Class Certification Motion"). The court makes the following rulings on the Plaintiff's motions.
Motion to Withdraw
Class Certification Motion In an apparent concession that he cannot satisfy the numerosity prerequisite of Federal Rule of Civil Procedure 23(a)(1), the Plaintiff filed his Motion to Withdraw Class Certification Motion. The Defendants oppose the motion in all respects.
The Plaintiff argues that withdrawal of his motion for class certification and the striking of the class allegations in the Complaint "would better preserve judicial resources" than would a ruling on his motion for class certification. The court disagrees. In this case, the material fact of the absence of numerosity is not in dispute, and the resolution of the Plaintiff's motion for class certification is crystal clear (see below). Little judicial resources will be consumed by ruling on the motion for class certification. The motion to withdraw the motion for class certification is therefore DENIED.
The Plaintiff's request to strike the class allegations in his Complaint should be denied for several reasons. First, the motion may be viewed as a motion to amend his pleading. As such it would be untimely under the Case Management Plan, which set a July 20, 2002, deadline for filing motions to amend the pleadings, and the Plaintiff has made no effort to demonstrate the good cause necessary under Federal Rule of Civil Procedure 16(b) for modifying the deadline for amendments to the pleadings. Also, no proposed amended pleading was attached to the Plaintiff's motion, and a court may deny a motion for leave to amend which is unaccompanied by the proposed amended pleading. See Bownes v. City of Gary, Ind., 112 F.R.D. 424, 425-26 (N.D.Ind. 1986). But, more importantly, because the Defendants have filed their Answer, the Plaintiff may amend his Complaint only by leave of court (or written consent by Defendants, which consent they plainly will not give), and Federal Rule of Civil Procedure 15 requires that leave be given only "when justice so requires." Fed.R.Civ.P. 15(a). The Plaintiff has not shown that justice requires he be afforded leave to amend his Complaint so that he may strike the class allegations therein. The motion to strike the class allegations in the Complaint is therefore DENIED.
The Plaintiff contends that consistent with the mandates of Federal Rule of Civil Procedure 23(e) the court must give notice to the putative class upon denying a motion for class certification and dismissing class allegations in a complaint. Rule 23(e) provides:
Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.
Fed.R.Civ.P. 23(e). Notice of dismissal is not required when class allegations are dismissed prior to certification. See Simer v. Rios, 661 F.2d 655, 666 (7th Cir. 1981) (stating that Rule 23(e) does not invariably require notice when a case settles before certification); Glidden v. Chromalloy Am. Corp., 808 F.2d 621, 626 (7th Cir. 1986) (relying on Simer and concluding that Rule 23(e) presumptively applies to putative class actions unless the district court denies certification).
The Plaintiff relies on Culver v. City of Milwaukee, 277 F.3d 908 (7th Cir. 2002), and Glidden for the proposition that the court must give notice under Rule 23(e) to putative class members before dismissal or compromise even in the precertification stage. In Culver, however, a class had been certified and later was decertified. Thus, the class members had received formal notice of the class action and may have relied on it to protect their interests. This court believes that Culver should be limited to situations in which the class members have received formal notice of the class action and may have relied on that notice. This case is unlike Culver as no formal notice has been sent to the putative class members. Glidden does not hold that notice to the putative class is required, but rather that court approval of the dismissal of class allegations is required. See Glidden, 808 F.2d at 626-27. This court in this entry approves of the dismissal of the class allegations on the basis of the lack of evidentiary support as discussed below. Therefore, the court concludes that Rule 23(e)'s notice requirements are not mandated in this case and the motion for order directing that notice be given to the putative class accordingly is DENIED.
Motion for Class Certification
The undisputed evidence establishes that only five persons make up the putative class in this case. (Hoy Aff. ¶ 3; see also Pl.'s Mot. Withdraw ¶ 6.) Five is an insufficient number to satisfy the numerosity prerequisite of Rule 23(a)(1). See Gen. Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980) (numerosity requirement not satisfied by class of fifteen); Harik v. Cal. Teachers Ass'n, 298 F.3d 863, 872 (9th Cir. 2002) (classes containing only seven, nine and ten members fail to satisfy Rule 23's numerosity requirement). The inability to satisfy the numerosity prerequisite is fatal to the Plaintiff's motion for class certification. See, e.g., Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 676 (7th Cir.) (stating that "[a] court may certify a class under Rule 23(b)(3) only if it finds that all of the prerequisites (such as numerosity) have been demonstrated"), cert. denied, 534 U.S. 951 (2001); Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 1976) ("Failure to meet any one of the requirements of Rule 23 precludes certification of a class."). Therefore, the motion for class certification is DENIED.
Conclusion
The Motion to Withdraw Motion for Class Certification, to Strike Class Allegations, and for Order Directing Notice Be Given to Class is DENIED, and the Plaintiff's Motion for Class Certification is DENIED.
ALL OF WHICH IS ORDERED.