Opinion
Civil Action 99-D-925-N
May 16, 2001
Dennis G. Pantazis, Brian M. Clark, Gordon, Silberman, Wiggins Childs, for plaintiff.
George W. Walker III, Copeland, Franco, Screws Gill, for defendants.
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff Willie Bell Jones's ("Plaintiff") Motion To Alter, Amend or Vacate ("Mot.") the court's April 24, 2001 Memorandum Opinion And Order, wherein the court denied Plaintiff's Motion For Class Certification. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Plaintiff's Motion is due to be denied.
I. DISCUSSION
The court previously entered a Memorandum Opinion And Order denying Plaintiff's Motion For Class Certification because Plaintiff failed to satisfy the Rule 23(a) requirements of typicality and adequacy of representation. Plaintiff now moves the court to alter, amend, or vacate its order. Plaintiff raises four arguments in support of her motion. The court will address each argument in turn.
A. Plaintiff's Rule 59 Argizments Fail
The scheduling order. First, Plaintiff argues that the proposed class should be certified as to Defendant Roy because Roy failed to oppose Defendant's Motion For Class Certification. Such failure, Plaintiff contends, amounts to consent to the Motion For Class Certification, pursuant to the Uniform Scheduling Order entered in this case last summer. (Mot. at 2.) The court disagrees.
Although Plaintiff correctly states that Section 6 of the Uniform Scheduling Order provides that the failure to file a response to a motion, indicates that there is no opposition to the motion, the moving party bears the burden of satisfying the court that all of the Rule 23 prerequisites have been met. See Gilchrist v. Bolger, 733 F.2d 1551, 1556 (11th Cir. 1984). If the court is not satisfied, then certification is unconscionable, regardless of whether the non-movant opposed the motion. Id. Put another way, the Uniform Scheduling Order must be read consistently with the Due Process Clause of the Fifth Amendment. A class action binds the entire class forever. As such, Rule 23 protects procedural and substantive due process rights, and class counsel cannot assume unto himself the rights of others merely because he feels like it. See Hansberry v. Lee, 311 U.S. 32 (1940).
The discovery sanctions. Second, Plaintiff argues that denial of class certification will, essentially, reward Defendant Olsten for supposed abuse of the discovery process. This argument is without merit.
At the outset, the court will address Plaintiff's contention that this court "agreed" with the magistrate judge that Olsten engaged in "legal gamesmenship." Plaintiff reaches this result by observing that the court overruled Olsten's objection to the magistrate judge's imposition of sanctions for failure to produce various documents during discovery. (4/26/01 Order.) Plaintiff reads too much into the court's finding.
When reviewing the order of a magistrate judge pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, the court modifies or sets aside only those portions of orders "found to be clearly erroneous or contrary to law." FED. R. Civ. P. 72(a). In this case, despite Plaintiff's misreading of the court's order, the court never found that Olsten acted in bad faith or was guilty of "legal gamesmanship." Such a finding is not necessary for the imposition of sanctions under Rule 37, which is enforced through Local Rule 26.1 and Federal Rule 16. See Stallworth v. E-Z Serve Convenience Stores, 199 F.R.D. 366, 368-69 (M.D. Ala. 2001)
The court's order makes clear that it upheld the magistrate judge's order because "Olsten did not take affirmative steps to stay discovery." (4/26/01 Order at 4.) After all, it was this failure to stay that primarily drew the ire of the magistrate judge in the first instance. The court's order states as follows:
Upon consideration of these reasons [the reasons in support of the magistrate judge's decision] and because Olsten did not take affirmative steps to stay discovery, and indeed was the reason that the court delayed in ruling upon the Motion For Class Certification, the court overrules Olsten's objection to the magistrate's imposition of sanctions.Id.
Plainly, the court agreed that the imposition of sanctions was not "clearly erroneous." Equally plainly, the court did not "agree" that Olsten engaged in "legal gamesmanship."
That being said, the court will now address the merits of Plaintiff's attack on Olsten's actions during discovery. Since November 7, 2000, plaintiff has known that the letters from Olsten would be pertiment to her case. (Mot. at 3.) Nevertheless, Plaintiff waited some four months from filing her initial request for production to file her Motion To Compel. (Pl. Ex. C.) Plaintiff, who is represented by one of the largest law firms in Alabama, bears some responsibility for the prosecution of her claims. See Strickland v. Wayne FarmsSouthland Hatchery, 132 F. Supp.2d 1331, 1332 (M.D. Ala. 2001) (quoting Law v. Hercules, Inc., 713 F.2d 691, 692 (11th Cir. 1983)). If it was obvious that Qisten was giving what Plaintiff dubs "merely boilerplate objections' to material which was clearly relevant and discoverable, then Plaintiff should not have waited four months to compel Olsten to produce the material. (Mot. at 3; P1. Ex. C.) Just as the court should not reward "legal gamesmanship, " neither should the court encourage parties to sleep on their rights. See Cash v. State Farm Fire Cas. Co., 125 F. Supp.2d 474, 476-77 (M.D. Ala. 2000).
The law of comparative negligence teaches that ambiguously harmful acts are properly deterred by reducing a plaintiff's recovery rather than barring it. Even assuming that Olsten was partially responsible for the non-production of the documents, Plaintiff should have taken affirmative steps to obtain the documents herself, rather than wait until the eleventh hour. Against this backdrop, and for many reasons not chronicled here, the magistrate judge's modest sanctions were fair and reasonable, but the relief Plaintiff requests would amount to a windfall borne from Plaintiff's own negligence.
The separate letters. Plaintiff also contends that the difference between the Olsten letters and Roy letters is not related to Plaintiff's claims because Plaintiff alleges that all the letters violated the same provisions of the FDCPA. Plaintiff erroneously claims that the "distinction in each such letter is the name of the debtor, the debtor's address, and the amount owed." (Mot. at 8.)
There is obvious tension in that Plaintiff, on the one hand, claims to have knowledge about the substantive contents of the letters while she admits, on the other hand, that she has not received any of the letters. Furthermore, as the court has previously informed Plaintiff when she made this prior misrepresentation, the letter that Plaintiff received from Roy differs in at least two respects from the letter received by the other 12 members of the Roy subclass. (4/24/01 Order at 4-5.)
The court noted Plaintiff's error in this matter in the court's April 24, 2001 Memorandum Opinion And Order. Counsel's apparent inability to read the court's orders raises serious questions about counsel's ability to bind thousands of citizens in a class action.
Plaintiff's letter indicated that she "may" be required to pay the amount not covered by insurance "if [Plaintiff] is in fact responsible." (Pl. Ex. B to Mot. For Class Cert.) The letter received by the other 12 members of the Roy subclass simply states that the recipient "will" be responsible. (Pl. Ex. D to Mot. For Class Cert.) Thus, Plaintiff's contention that the Roy letters differ only with respect to the "name of the debtor, the debtor's address, and the amount owed" is utterly false.
Further, the court again rejects Plaintiff's argument that the differences in the content of the letters are irrelevant to the court's class certification analysis. The court, of course, does not look to the substantive letters in order to determine the merits of the case. However, the court has a duty to consider all evidence bearing on the propriety of class certification. Courts which have certified FDCPA class actions have routinely done so because the plaintiff and all of the class members received the same form letter alleged to have violated the same provision of the FDCPA. See, e.g. Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998) (holding that typicality requirement was satisfied where defendant mailed same form letter to all class members); Talbott v. GC Services Ltd. partnership, 191 F.R.D. 99 (N.D. Va. 2000) (certifying class because plaintiff and all proposed class members received the same letter, and distinguishing plaintiff's case from Byes v. Telecheck Recover Services, Inc., 173 F.R.D. 421 (E.D. La. 1997), which involved five different letters and all of the class members did not receive all five letters);Vines v. Sands, 188 F.R.D. 302 (N.D. Ill. 1998) (finding certification appropriate because each class member in the proposed class received the same letter); Wilburn v. Dun Bradstreet Corp., 180 F.R.D. 347 (N.D. Ill. 1998) (same); D'Alauro v. GC Serv. Ltd. Partnership, 168 F.R.D. 451, 456 (E.D.N.Y. 1996) (certifying class action where all proposed class members received each of the two identical letters); Carr v. Trans Union Corp., 1995 WL 20865 (E.D. Pa. 1995) (certifying class action where only one form letter was sent to all proposed class members); Vaughn v. CSC Credit Serva. Inc., 1994 WL 449247 (N.D. In. 1994) (certifying class of all persons who received one particular form letter).
In Byes v. Telecheck Recover Services, Inc., 173 F.R.D. 421 (E.D. La. 1997), the plaintiff's class action complaint alleged violations of the FDCPA and state consumer law. The named plaintiff's claims were based on five letters sent to her by the defendant. She sought to certify a class of all class members to whom one of five different letters had been mailed. After giving the Rule 26 commonality requirement an exceedingly broad interpretation, the court found that the "common issue" of whether the multiple letters sent violated the FDCPA satisfied the commonality requirement. Id. at 424-25. Yet the court found that the evidence failed to satisfy the typicality requirement because the letters differed in substance and the proposed class members had not received all five letters. Id. at 425. Thus, the court denied the plaintiff's motion for class certification. Id. at 429.
Similarly, in this case, the court reaffirms that Plaintiff cannot satisfy the typicality requirement. Although Plaintiff characterizes all of the letters as differing only with regard to the addressee and the amount owed, there are clear substantive differences between the two letters sent by Roy. Plaintiff received a letter which is identical to only 20 of the "thousands" of members she seeks to represent. Plaintiff has never received a letter from Olsten; she has no idea what the letters say. In light of the substantive variations in the letters, the fact that the class members within each subclass received different letters, and the fact that Plaintiff received a single letter substantively identical to only 20 of the proposed class members, the court remains convinced that Plaintiff's claims are atypical of the class. See id. at 424-25. For these and other reasons, class certification does not meet the elements of Rule 23 or the requirements of due process.
The Olsten subclass. Plaintiff's final argument is that the court erred in finding that she is "not part of the Olsten subclass" because she failed to receive a letter from Olsten. Plaintiff contends that she received a letter from Roy, who is Olsten's counsel, and that a letter from Olsten's counsel is deemed a letter from the party. The fact that Plaintiff never received a letter from Olsten has been an issue since Plaintiff filed her Motion For Class Certification. She could have raised this argument at any time. Thus, the court will not address the newly-minted "lawyer-agent" argument, which was not raised until this instant Rule 59 motion. See Hashwani v. Barbar, 822 F.2d 1038, 1041 (11th Cir. 1987) (holding that district court does not abuse its discretion by not considering arguments raised for the first time on a motion to amend a summary judgment order); American Home Assurance Co. v. Glenn Estess Assocs., Inc., 763 F.2d 1237, 1239 (11th Cir. 1985) (same); see also Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990) (Rule 59 motion may not be used to relitigate old matters or raise new arguments).
In any event, even assuming that Plaintiff's letter is effectively from Olsten, this does not negate the fact that Plaintiff is an inadequate representative. She never received any of the other letters sent from Olsten. She cannot expect to bind those who did. See Byes, supra.
B. Plaintiff's Proposed 21-Number Subclass Does Not Meet Rule 23's Numerosity Requirement
Plaintiff also asks the court to certify a class of persons who received the same Roy letter that she received. (Mot. at 5.) This proposed class would have exactly 21 members. The court declines to certify such a tiny class.
The Eleventh Circuit has recognized with regard to numerosity that "while there is no fixed numerosity rule, generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors." Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986). Thus, Plaintiff's proposed class of no more than 21 individuals rests precisely on the line for presumed inadequacy. The court looks at the size of the class and also considers whether joinder is impracticable. In determining if joinder is impracticable, the court looks at factors including geographic diversity, Kilgo v. Bowman Transp., Inc., 789 F.2d 859 (11th Cir. 1986), judicial economy, Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452 (E.D. Pa. 1968), and the ease of identifying the members of the class and determining their addresses, Zeidman v. J. Ray McDermott Co., 651 F.2d 1030 (5th Cir. Unit A 1981).
After considering the totality of the circumstances, the court finds that the proposed class does not meet the requirements of Rule 23(a) (1). First, Defendant Roy has indicated that she has records which provide the names and addresses of the other 20 recipients. (Roy Dep. at 25.) Thus, the other 20 recipients may be identified, located, and served. The court finds that Plaintiff has not discharged its burden of showing that these twenty individuals cannot be joined without inconvenience or difficulty.
Plaintiff's evidence consists of Roy's testimony that she does not know precisely where she sent the debt collection letters, but that she "thinks it's safe to assume" that they went to different parts of the country. But where precisely? Florida? Mississippi? Washington? Maine? New Jersey? From such a sparse factual record, the court simply cannot find that joinder is impracticable. See 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER MARY KAY KANE, FEDERAL PRACTICE PROCEDURE S 1762 at 159 (1986) (class representative must "show that it is extremely difficult or inconvement to join all the members of the class.") Plaintiff cannot rely on speculation to discharge her burden. Id. at 164.
The court also weighs the fact that class actions impose added burdens upon the court, which must constantly scrutinize the proceedings and insure that the absent members are receiving everything to which they are entitled. When a court looks at certification motions in the context of a 21- to 40-member class, one factor to consider is how close the proposed class is to the number 21. The court takes judicial notice that civil actions involving as many as 30 plaintiffs have been prosecuted in this District without a hitch. See, e.g. Ector et al. v. East Ala. Lumber, 00-D-1231-E (filed Sept. 8, 2000) (involving 30 named plaintiffs; 29 from Ohio and one from Nevada) The court finds that joinder is preferable to the class device in this case. A class action is not the superior way for this case to proceed. See Cox, supra.
II. ORDER
For these and other reasons, it is CONSIDERED and ORDERED that Plaintiff's Motion To Alter Amend or Vacate Order On Class Certification, be and the same is hereby DENIED.