Opinion
Civil Action 99-D-925-N
April 24, 2001
Brian M. Clark, Gordon, Silberman, Wiggins Childs, Birmingham, AL, for plaintiff.
George W. Walker, III, Copeland, Franco, Screws Gill, Montgomery AL.
Barry J. Armstrong, Constance A. Walters, Jeremy M. Moeser, Long, Aldridge Norman, Atlanta, GA.
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff Willie Bell Jones's Motion For Class Certification, filed November 15, 2000. Defendant Olsten Health Services filed a Response December 4, and Plaintiff issued a Reply December 11. 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.
"Plaintiff" or "Jones."
"Defendant" or "Olsten."
I. STANDARD OF REVIEW
Class certification is a procedural question separate from the merits of the case. A court may not certify a class unless it is satisfied that the plaintiffs have met the requirements of Rule 23 of the Federal Rules of Civil Procedure . See Gilchrist v. Bolger, 733 F.2d 1551, 1555 (11th Cir. 1984).
II. FACTUAL BACKGROUND
Plaintiff seeks to assert a class action under the Fair Debt Collection Practices Act ("FDCPA") . Plaintiff sues Olsten and its attorney, Jennifer L. Roy, and proposes the following class:
"Roy."
[A]ll persons that Olsten and/or Roy have attempted to collect debts from that were not given proper notification and disclosures pursuant to 15 U.S.C. § 1692g enumerated above, and that were the target of misleading communications enumerated herein and prohibited by 15 U.S.C. § 1692e, in an attempt to collect debt.
From that original large class, Plaintiff asks the court to certify two subclasses:
1. All persons who received a letter from Olsten Health Services/Gentiva that referenced the "Corporate Collection Center" between August 26, 1998 and present.
2. All persons who received a copy of a letter from Jennifer L. Roy substantially similar in form, the exception being the name of the debtor and his or her address, and the amount owing, as the letters attached [to Plaintiff's Memorandum] as Exhibits A and B between August 26, 1998 and the present.
Olsten underwent a corporate reorganization in March of 2000 and subsequently changed its name to Gentiva Health Services. (Resp. at 9.)
A. Facts Surrounding the Roy Subclass
In March 1997, Olsten provided Plaintiff with home healthcare services. Due to confusion as to the amount Plaintiff's insurance carrier was to pay on the bill, Olsten sent Plaintiff a letter in September 1998 stating that he had an outstanding balance for the services performed in the amount of $1,252.38. Plaintiff tried to clear up the matter but was unsuccessful.On December 11, 1998, Plaintiff received a letter from Jennifer L. Roy regarding the debt. In its entirety, the letter provides:
Dear Mr. Jones:
This letter is to advise you that I represent Olsten Health Services (formerly Olsten Kimberly Quality Care). I have been retained to assist with the collection of monies due on your account with Olsten. Currently, the balance due and owing is $1,252.38.
After reviewing your account it has been determined that your insurance carrier has not paid all claims as anticipated. I am currently working with your insurance carrier to resolve this situation. Please be aware that should your carrier not pay the outstanding claims or not pay them in full, you may be responsible for any unpaid amounts.
If I am unable to resolve this matter with your insurance company within thirty (30) days, Olsten has instructed me to collect the balance of your account from you if you are in fact responsible. In that regard, if you have any information that will help facilitate the payment of the outstanding charges, I urge you to contact either me or your insurance carrier as soon as possible. The is an attempt to collect a debt and any information obtained will be used for that purpose.
Sincerely, /s/ Jennifer L. Roy
Plaintiff erroneously contends that the letter he received is "exactly the same" as another letter sent to other debtors on behalf of Olsten. The letters are different in two respects. First, the last sentence of the second paragraph of the letter sent to debtors other than Plaintiff provides that "should your carrier not pay the outstanding claims or not pay them in full you will be responsible for any unpaid amounts." (emphasis added). Second, the letter Plaintiff received says he will be charged for the unpaid bill only "if you are in fact responsible" for it. The other letters do not have this limitation.
Between August 26, 1998 and the present, Roy sent letters to different parts of the country. Letters with the "will" language went to 15 patients, but only 12 of them actually received it. Letters with the "may" language, such as the letter Plaintiff received, went to 33 persons, but only 21 persons received it. Combining the 12 recipients of the "will" letter with the 21 recipients of the "may letter," Plaintiff seeks to certify a subclass of the 33 individuals.
The letterhead on both letters reads:
B. Facts Surrounding the Olsten/Gentiva Subclass
Plaintiff also seeks to certify a class of "literally thousands" of individuals who received letters directly from Olsten containing a reference to "Corporate Collection Center" in the letterhead. Olsten sent out four of five different versions of letters advising clients of the status of their account. Plaintiff admits that he never received such a letter from Olsten. Nevertheless, he contends that he can adequately represent a class alleging such letters violate 15 U.S.C. § 1692 (e) (14), which prohibits any business, company, or organization from using any name other than the true name of debt collection business, company or organization to collect a debt. This is because Plaintiff, too, received a letter, albeit not from Olsten, with the name "Corporate Collection Center" in the letterhead.III. DISCUSSION
A court will certify a class only if the court determines after a rigorous analysis, that the prerequisites of Rule 23(a) are satisfied."General Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 161 (1982). When a party seeks to certify various subclasses, each proposed subclass "must independently satisfy class action criteria." 1 NEWBERG ON CLASS ACTIONS § 3.09 (3d ed. 1992). The Rule 23(a) prerequisites are often referred to as numerosity, commonality, typicality, and adequacy of representation. See FED. R. CIV. P. 23(a). If a representative fails to establish any single requirement, then the case may not proceed as a class action. See Coleman v. Cannon Oil Co., 141 F.R.D. 516, 520 (M.D. Ala. 1992). Thus, if the 23(a) prerequisites are not satisfied, the court need not determine whether the class properly falls under any of the three categories enumerated in Rule 23(b) of the Federal Rules of Civil Procedure . For the following reasons, the court finds that Plaintiff's Motion is due to be denied.
A. Typicality
Under Rule 23(a)(3), a plaintiff seeking to represent a class must present claims typical of that class. There must be a connection between the class representative's claims or defenses and the common questions that link the class. See Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984). Plaintiff seeks to satisfy the typicality requirement by demonstrating that his claims are based on violations of the FDCPA, namely that all the letters violated the FDCPA by referring to a non-existent entity, and by failing to provide the proper validation information. The court is unpersuaded, and finds that Plaintiff's claims differ from those of the proposed class.
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. The court indicated that, giving the Rule 23 commonality requirement its broadest interpretation, the "common issue" of whether the multiple letters sent violated the FDCPA would satisfy the commonality requirement. Yet, the court found that the evidence failed to satisfy the typicality requirement because the letters differed substantively and the proposed class members had not received all five letters. See id. at 424-25. Thus, the court denied the plaintiff's motion for class certification.
Similarly, in the instant case, although Plaintiff characterizes the letters involved 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 that received by only 20 of the "thousands" of members he seeks to represent. Plaintiff never received a letter from Olsten and has no idea as to the content of the letters from Olsten. 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 finds that Plaintiff's claims are atypical of the class. See id. at 424-25.
B. Adequacy of Representation
Rule 23(a)(4) requires the proposed class representative to demonstrate that he can fairly and adequately protect the interests of the class members. Because the class action device "holds the potential of binding class members who have no actual knowledge of the suit, the requirements of due process, as well as the necessity for confidence in the judicial process, demands assurance that representative parties can be counted upon to faithfully defend the interests of all members of the class." DuPont v. Wyly, 61 F.R.D. 615, 621 (D. Del. 1973) . In sum, the Rule 23 requirements are not merely procedural niceties; they serve to protect the essential values of due process and the fundamental principles of our jurisprudence.
In order to satisfy the requirement of Rule 23(a)(4), a "class representative must be part of the class and `possess the same interest and suffer the same injury' as the class members." East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (quotingSchlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974)). If the proposed class representative is not a member of the class he claims to represent, then representation is "clearly inadequate." Hackett v. Kincade, 36 F.R.D. 442, 444 (N.D. Miss. 1964) (denying certification when class representative and putative class members were not injured by same acts).
The named plaintiff desires strongly to represent a class of people that received different letters than the one he received himself. This desire may be laudable, but it is insufficient to make Plaintiff an adequate representative. of the thousands of people who make up Plaintiff's proposed class, only 20 received the same letter as Plaintiff. To certify this class would give new meaning to the phrase "blind faith." In this situation, the potential for conflict of interest is all too palpable. The named plaintiff may have an easier time proving his case, using his letter, than he will have proving the case arising from the other demand letter. He may pour more of his efforts into the letter forwarded to him than he will into the letters sent to others. It is not enough to say that the class's attorneys are collecting based on the size of the class and, as a result, "the bigger the class, the bigger the take." From the named Plaintiff's view, the take is what will be taken from proving that Roy's letter to him personally violated the FDCPA. He has nothing further to profit by proving the letters sent from Olsten and the second letter from Roy were also in violation of the FDCPA. Therefore, the court finds that Plaintiff is an inadequate class representative. Accordingly, the court finds that Plaintiff's Motion For Class Certification is due to be denied.
IV. ORDER
It is CONSIDERED and ORDERED that Plaintiff's Motion For Class Certification be and the same is hereby DENIED.