BOND v. FLEET BANK (RI), N.A.

Full title: JOYCE BOND, on behalf of herself and all others similarly situated v…

Court: United States District Court, D. Rhode Island

Date published: Oct 10, 2002

C.A. No. 01-177 L (D.R.I. Oct. 10, 2002)

Opinion

C.A. No. 01-177 L

October 10, 2002

Peter N. Waysylyk, Esq., Gordon Fauth, Esq., for Appellant.

Edward D. Rogers, Esq., Richard L. Genma, Esq., for Appellee.

Report and Recommendation

JACOB HAGOPIAN, United States Magistrate Judge.

Plaintiff Joyce Bond filed a Complaint with this Court asserting claims against defendant Fleet Bank (RI), N.A. ("Fleet" or "Fleet Bank"). Plaintiff complains of the manner in which Fleet set payment due dates for, and posted payments to, her credit card account, and contends that it violated state and federal law.

This matter is currently before the court on the motion of plaintiff for class certification pursuant to Fed.R.Civ.P. 23. Defendant opposes the motion. This matter has been referred to me for a report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B).¹ For the reasons set forth below, I recommend that plaintiff's request for certification be granted, and the following class be certified for injunctive relief on plaintiff's Truth in Lending Act claim:

1 A hearing was not held since the Court was satisfied with the briefs and supporting documents submitted by the parties in this matter. Moreover, neither side requested a hearing.

Every person who holds a Fleet credit card account and who has made a payment on that account. Excluded from the Class are Fleet, any entity in which Fleet has a controlling interest, and Fleet's legal representatives, assigns, and successors.

Background

The following are the factual allegations culled from plaintiff's Amended Complaint.

Fleet issued the plaintiff a credit card. The monthly billing statements that Fleet sends to its cardholders refers to a "payment due date." The payment due date is, as the phrase indicates, the date upon which the payment is due. On the reverse side of the monthly statements, in small print, Fleet states that payments must be received by 9:00 a.m. on a business day in order to be credited on the day it is received. Business days are defined as Monday though Friday, excluding holidays. Payments received after 9:00 a.m., or on a non-business day, will be credited to the next business day.

Bond asserts that these policies and practices result in excess late fees being assessed. For example, Fleet's monthly billing statement for the billing cycle ending December 4, 2000, listed a payment due date at Sunday, December 31, 2000. The previous day, a Saturday, and the following day, Monday January 1, 2001 — a holiday — were non-business days. Bond sent Fleet a payment which was not posted on the day it was received, but rather on January 2, 2001. As a result, Fleet charged Bond a $35.00 late fee and excess interest.

Bond contends that these allegations set forth a violation of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601, et seq., and the Rhode Island Deceptive Trade Practices Act ("RIDTPA"), R.I. Gen. Laws 6-13.1-1 et seq. Bond also asserts common law claims for breach of contract and breach of covenant of good faith and fair dealing.

Bond now seeks certification pursuant to Fed.R.Civ.P. 23(b)(2) on a non-opt out basis, of the following class for her injunctive claims pursuant to TILA:

Every person who has held a Fleet credit card account and who has made a payment on that account. Excluded from the Class are Fleet, any entity in which Fleet has a controlling interest, and Fleet's legal representatives, assigns, and successors.

Defendant has opposed the motion.

Discussion

A. Standard of Review

Plaintiff bears the burden of proving that class certification is appropriate under Fed.R.Civ.P. 23. See Amchem Products Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 2245 (1997). Before certifying a class, a federal court must conduct a "rigorous analysis" of the prerequisites of Fed.R.Civ.P. 23. See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364 (1974). Nonetheless, class certification "is essentially an exercise of discretion by the district court,"Lamphere v. Brown University, 553 F.2d 714, 719 (1st Cir. 1977), and the scope of the court's discretion in this area is very wide. DeGrace v. Rumsfeld, 614 F.2d 796, 809 n. 12 (1st Cir. 1980).

The Supreme Court has warned that it "find[s] nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 2152 (1974). "In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Id. at 478, quoting Miller v. Mackey International, 452 F.2d 424, 427 (5^th Cir. 1971). However, "the class determination generally involves considerations that are 'enmeshed in the factual and legal issues comprising the plaintiff's cause of action.'" Coopers Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 2458 (1982) quoting Mercantile National Bank v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 520 (1963). Thus, "[b]efore deciding whether to allow a case to proceed as a class action . . . [courts] should make whatever factual and legal inquiries are necessary under Rule 23." Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001); see also 5 Moore's Federal Practice § 23.46[4] ("[B]ecause the determination of a certification request invariably involves some examination of factual and legal issues underlying the plaintiffs' cause of action, a court may consider the substantive elements of the plaintiffs' case in order to envision the format that a trial on those issues would take.") For this purpose, "it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." General Tel. Co. of Southwest v. Falcon, 457 U.S. at 160.

B. Preliminary Matters

Article III of the Constitution imposes a "threshold requirement . . . that those who seek to invoke the power of federal courts must allege an actual case or controversy." O'Shea v. Littleton, 414 U.S. 488, 493, 94 S.Ct. 669, 675 (1974). When a case is moot, the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome — a case or controversy as required by Article III ceases to exist. See City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 1390 (2000); U.S. Parole Commission v. Geraghty, 445 U.S. 388, 395, 100 S.Ct. 1202, 1208 (1980); R.I. Association of Realtors, Inc., v. Whitehouse, 199 F.3d 26, 34 (1^St Cir. 1999). Thus, there are two aspects of mootness. First, the issues must be "live" and the second, the parties must have a "personal stake." If either aspect is missing, dismissal of the action is required.

Fleet contends that Bond canceled her credit card account and has now paid off her balance. Thus, Fleet contends that she does not have a personal stake needed to seek injunctive relief. Bond, however, contends that it was Fleet's strategic Rule 68 offer and subsequent motion to dismiss which delayed class certification long enough for her claim to expire. At the time she filed her complaint, and at the time she moved for certification, Bond had an outstanding account balance on her account, and was subjected to the polices of which she complains. Bond's claim would inevitably expire unless plaintiff left an unpaid balance, thereby incurring additional interest expenses.

The Third Circuit has held that a class action may endure even though the named plaintiff's claims have become moot, as long as the motion for class certification is pending at the time that mootness overtakes the plaintiff's claims. Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 135 (3^rd Cir. 2000)("So long as a class representative has a live claim at the time he moves for class certification, neither a pending motion nor a certified class action need be dismissed if his individual claim becomes moot."). I adopt this holding. Since plaintiff had a live claim at the time she moved for certification, she may continue on as the class representative.

Alternatively, Fleet's motion to dismiss had to be addressed prior to the certification issue. In ruling on Fleet's motion to dismiss, this Court noted that "Fleet [sought] to render plaintiffs claims so transitory that the court could not appropriately address the class certification issue, or, more precisely, before the plaintiff could appropriately bring the motion." Bond v. Fleet Bank, 2002 WL 373475 *7 (D.R.I. 2002). Since it was Fleet's strategic offer that delayed the certification motion, and this Court's ruling on Fleet's motion to dismiss based on its strategic offer, this Court will relate back certification of the class, as already established in Bond v. Fleet Bank, 2002 WL 373475. Fleet did not object to the Court relating back the motion to certify as set forth in that report and recommendation, and waived any argument to the contrary. See United States v. Valencia-Copete, 792 F.2d 4 (1St Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1^St Cir. 1980) (Failure to file timely, specific objections to a report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision).

Fleet next contends that injunctive relief is not necessary since Fleet has changed its payment policies. However, "[i]t is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074 (1982). "[I]f it did, the courts would be compelled to leave '[t]he defendant . . . free to return to his old ways.'" Id. at 289, n. 10, citing United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897 (1953). If there is "a reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party," a case will not be considered moot. Oakville Development Corp. v. F.D.I.C., 986 F.2d 611, 615 (1^StCir. 1993). "In accordance with this principle, the standard [the Supreme Court has] announced for determining whether a case has been mooted by the defendant's voluntary conduct is stringent: 'A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.'" Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000) quoting United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364 (1968). The "heavy burden of persua[ding] the court that the challenged conduct cannot reasonably be expected to start up . . . lies with the party asserting mootness." Id.

Here, Fleet has produced an affidavit of one its employees. The affidavit discusses Fleet's alleged current practices. However, the affidavit conflicts with Fleet's written policies it sends its cardholders. See Fleet Br. at 9, n. 5; See also Fleet Surreply Br. At 8, n. 5. Fleet's affidavit neither assures this court that the practices contained in the affidavit are indeed the practices followed by Fleet, in a consistent and uniform fashion, or that they will continue to be followed in the future. See, e.g., United States v. Generix Drug Corp., 460 U.S. 453, 456 n. 6, 103 S.Ct. 1298, 1300 n. 6 (1983) (voluntary cessation does not moot claim where defendant remains free to "change its mind" and resume the challenged practice); United States v. W.T. Grant Co., 345 U.S. 629, 632 n. 5, 73 S.Ct. 894, 897 n. 5 (1953); United States v. Oregon State Medical Society, 343 U.S. 326, 333, 72 S.Ct. 690, 695 (1952) ("When defendants are shown to have settled into a continuing practice . . . courts will not assume that it has been abandoned without clear proof. * * * It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.")

C. Fed.R.Civ.P. 23(a) Requirements

Before a class action may be certified, the four requirements of Fed.R.Civ.P. 23(a) must be satisfied, as well as one of the three requirements set forth in Rule 23(b). Eisen v. Carlisle Jacquelin, 417 U.S. 156, 94 S.Ct. 2140 (1974). Rule 23(a) allows class certification 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. See Fed.R.Civ.P. 23(a). I will address each requirement in turn.

1. Numerosity

Rule 23(a)(1) requires that the class be so numerous that joinder of all the class members is impracticable.See Fed.R.Civ.P. 23(a)(1). Impracticability of joinder means only that it is difficult or inconvenient to join all class members, not that it is impossible to do so.See Robidoux v. Celani, 987 F.2d 931, 935 (2^nd Cir. 1993). Precise enumeration of the members of the class is not necessary for class certification. See McCuin v. Secretary of Health and Human Services, 817 F.2d 161, 167 (1^St Cir. 1987).

Here, plaintiff contends that Fleet, along with its affiliates, is the eighth largest credit card issuer in the United States. Plaintiff contends that the Class consists of hundreds of thousands of members. Fleet does not dispute these assertions. Accordingly, Rule 23(a)(1) is satisfied.

2. Commonality

Fed.R.Civ.P. 23(a)(2) requires that there be questions of law or fact common to the class. The requirement is "not a particularly onerous one. . . . It requires the existence of only some common issue or issues." Van West v. Midland National Life Insurance Co., 199 F.R.D. 448, 452 (D.R.I. 2001) (emphasis in original). Here, Bond's claims and the claims of the putative class arise out of the same billing policies and procedures. Thus, the class meets the commonality requirement. See, e.g., Bertozzi v. King Louie Intern., Inc., 420 F. Supp. 1166, 1176 (D.R.I. 1976) (commonality requirement met where "the focus of plaintiffs' entire action is a single written document, the tender offer, which was allegedly sent to every member of the purported class to elicit an identical response"); Van West, 199 F.R.D. at 452 ("allegations that some of the alleged misrepresentations were contained in literature that was widely distributed" fulfilled requirement); In re Cohen's Will, 51 F.R.D. 167, 174 (S.D.N.Y. 1970) ("[W]hen it is alleged that hundreds of investors were damaged as a result of having been uniformly misled by the same false and misleading prospectus . . . the existence of common questions of law and/or fact is inevitable"); Armstrong v. Davis 275 F.3d 849, 868 (9^th Cir. 2001) ("commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members").

However, Bond requests to certify a class consisting of "every person who has held a Fleet credit card account and who has made a payment on that account." Fleet argues that the class is overboard because it includes past cardholders who cannot benefit from injunctive or declaratory relief. Thus, Fleet asserts that the commonality component does not extend to these putative members.

This court is vested with considerable discretion "by Rule 23(c) and (d) as to determination of classes and subclasses, conditional orders, imposing conditions, prescribing measures to prevent undue complication, etc."Yaffe v. Powers, 454 F.2d 1362, 1365 (1^St Cir. 1992). Indeed, "the genius of Rule 23 is that the trial judge is invested with both obligations and a wide spectrum of means to meet those obligations." Id. at 1367. See also, Lamphere v. Brown University, 553 F.2d 714, 719 (1^St Cir. 1977) ("the underlying theme [of class certification] is flexibility; different cases call for different approaches"); Marcello v. Regan, 574 F. Supp. 586, 591-92 (D.R.I. 1983) (court has broad discretion in certifying subclasses sua sponte). Thus, this Court should certify Bond's injunctive class to include only the current cardholders.

3. Typicality

Rule 23(a) also requires that the claims or defenses of the representative parties are typical of the claims or defenses of the class. In order to meet the typicality requirement of Rule 23(a)(3) "[plaintiff] need not show substantial identity between [her] claims and those of absent class members, but need only show that [her] claims arise from the same course of conduct that gave rise to the claims of absent members." Randle v. Spectran, 129 F.R.D. 386, 391 (D. Mass. 1988) quoting Priest v. Zayre Corp., 118 F.R.D. 552, 555 (D. Mass. 1985).

"Ordinarily a purported representative's claim is typical if it arises from the same course of conduct and is based on the same legal theory as the claims of the class as a whole." Van West, 199 F.R.D. at 452. However, a claim is not typical if a representative "must prove something different from what is necessary to prove his own claim" in order to also prove the claims of other members of the class. Id. Where a plaintiff alleges, as Ms. Bond does, that a defendant's course of conduct is the same as to all members of the putative class, and when the claims as to that conduct are the same, the typicality requirement will generally be met. See, e.g., Margaret Hall Foundation. Inc. v. Atlantic Financial Management, Inc., 1987 WL 15884, *2 (D. Mass. 1987) ("In a common sense way, the named plaintiffs' claims are typical of the claims of all class members. They allege that defendants engaged in a common course of conduct with respect to all members of the plaintiff class"). Thus, Bond's claims are typical of the class she seeks to represent.

Fleet, however, contends that Bond's claims are not typical of the class because (a) she was confused by oral representations made by a Fleet phone representative (b) the putative class that Bond wishes to certify is overboard because it includes past cardholders who are no longer Fleet customers, and (c) the putative class is overboard because it contains current members whose contracts contain an arbitration clause. I will address each of these contentions in turn.

a. Oral Representations

Fleet contends that since Bond's claim is based in part on her phone conversation with a Fleet representative, her claim can not be considered typical of the class she seeks to represent. "[W]here a named plaintiff may be subject to unique defenses that would divert attention from the common claims of the class, that plaintiff cannot be considered typical of the class." In re Bank of Boston Corp. Securities Litigation, 762 F. Supp. 1525, 1532 (D.Mass. 1991). But see Margaret Hall Foundation, Inc. v. Atlantic Financial Management, Inc. 1987 WL 15884, *3 (D. Mass. 1987) ("possible nonreliance defenses, do not vitiate typicality"); Gorsey v. I.M. Simon Co., Inc., 121 F.R.D. 135, 138 (D. Mass. 1988) (where action in fraud did not contest legality of procedure, but required reliance, "the prevailing view is that for class certification purposes, security fraud actions are allowed to proceed as class actions in spite of foreseeable variations on the issue of reliance") (internal citation omitted).

Here, however, Fleet misunderstands Bond's claim. As her request for injunctive relief illustrates, as does her Amended Complaint, Ms. Bond claims that Fleet's policies violate the TILA. Ms. Bond's claim is not based on the oral representations of the Fleet representatives. It is based upon misleading cardholder agreements, and practices and policies of Fleet. Accordingly, the alleged oral representations made to Ms. Bond, which are not part of her claim, do not defeat the typicality requirement.²

2 The cases that defendant cites to support its argument are inapposite, since they concern situations where the oral representations served, in part, as the basis of the claim. See, Markarian v. Conn. Mutual Life Insurance Co., 202 F.R.D. 60, 66 (D.Mass. 2001) (although plaintiff alleged that members of class were misled by same omission, evidence showed that various oral representations were actually involved); Rand v. Bath Iron Works Corp., 2000WL 761630, 2-3 (D.Me. 2000) (variations in the promises, which served as basis of suit, defeated typicality); Kent v. SunAmerica Life Ins. Co., 190 F.R.D. 271, 279-80 (D.Mass. 2000) (circumstances of oral representations upon which reliance was claimed varied considerably).

b. Past Cardholders

Fleet argues that Bond's class is overboard because it includes past cardholders who cannot benefit from injunctive or declaratory relief. However, this does not affect the typicality of the claims of the members since the court has narrowed this injunctive class to current cardholders. See Supra C, 2.

c. The Arbitration Clause

Fleet next argues that class certification is not proper because of an arbitration clause which some members of the putative class are subject to, the validity of which has not yet been determined. Plaintiff counters that this court should not decide the issue at this stage as it would amount to a decision on the merits, and it is not necessary to make the Rule 23 determination.

A rebuttable presumption exists allowing arbitration agreements "unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 1652 (1991) quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). In rebutting this presumption, "the burden is on [plaintiff] to show that Congress intended to preclude a waiver of a judicial forum. . . . If such an intention exists, it will be discoverable in the text of the [statute], its legislative history, or an 'inherent conflict' between arbitration and the [statute's] underlying purposes." Gilmer, 500 U.S. at 26, citing Shearson/Am. Express v. McMahon, 482 U.S. 220, 227 107 S.Ct. 2332, 2337 (1987).

Although class actions are clearly within the contemplation of TILA, see 15 U.S.C. § 1640 (a)(2)(B), the statute does not evidence a congressional intent to exempt putative class actions claims from binding exemption clauses. See Fluehmann v. Associates Financial Serives, 2002 WL 500564, *3 (D. Mass. 2002) citing Johnson v. West Suburban Bank, 225 F.3d 366, 377-78 (3^rd Cir. 2000). The Federal Arbitration Act, 9 U.S.C. § 2-4, "requires district courts to compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums." Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217, 105 S.Ct. 1238, 1241 (1985). Thus, should the arbitration agreement to which some members of the putative class are subject be determined to be valid, they will be subject to this special defense.

Here, Fleet attacks Bond's proposed class as overboard because it includes members who did not opt-out of the arbitration agreement which Fleet sent to its customers. However, that some members may be subject to a valid arbitration agreement does not preclude this court from certifying a class. It may be so that at some later juncture, the arbitration agreement may call for the creation of subclasses, or the eliminating some members of the class, but it does not defeat the merits of certification.³

3 See, e.g., Collins v. Int'l Dairy Queen, Inc., 168 F.R.D. 668, 678 (M.D. Ga. 1996) (holding that it was improper to deny class certification on that basis that some members of the putative class were subject to arbitration agreements.); see also, Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 884 (6th Cir. 1997) (that some members had signed liability release forms did not justify denying class certification); Finnan v. L.F. Rothschild Co., 726 F. Supp. 460, 465 (S.D.N.Y. 1989) (certifying class despite the fact that some, but not all, class members had signed arbitration agreements); Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993) (noting that to meet the commonality requirement, the "interest and claims of the various plaintiffs need not be identical" and that "the threshold for meeting commonality is not high.").

4. Adequacy of Representation

Fed.R.Civ.P. 23(a)(4) requires that the representative party will fairly and adequately protect the interests of the class. See Fed.R.Civ.P. 23(a)(4). This encompasses two factors for consideration: (a) the representative plaintiff's interests are not antagonistic to the class she seeks to represent, and (b) that the class will be represented by qualified counsel. See In re Prudential, 148 F.3d 283, 312 (3rd Cir. 1998); Key v. Gillette Co., 782 F.2d 5, 7 (1^St Cir. 1986).

Both of these prongs are satisfied here. First, Bond is a member of the class she seeks to represent, and has the same claims against Fleet as other members of the class. Second, Bond's counsel are experienced in litigating class actions claims and financial-services suits. Accordingly, Bond has satisfied the requirements of Fed.R.Civ.P. 23(a)(4).

D. Fed.R.Civ.P. 23(b)(2) Requirements

Having met the requirements for Fed.R.Civ.P. 23(a), plaintiff must now demonstrate that she has met one of the requirements of Fed.R.Civ.P. 23(b). Bond asks this Court to certify the class only for injunctive relief, citing Jefferson v. Ingersoll International, Inc., 195 F.3d 894, 898 (7^th Cir. 1999), for plaintiff's claims pursuant to TILA and to defer certification for the damages and state law claims under Rule 23(b)(3). Thus, she requests a hybrid class action. Fleet on the other hand, argues that Bond's motion for certification pursuant to Fed.R.Civ.P. 23(b)(2) should be denied because monetary damages predominate over the requested injunctive and declaratory relief.

Fed.R.Civ.P. 23(b)(2) provides that an action may be maintained as a class action if "[t]he party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." See Fed.R.Civ.P. 23(b)(2).

Rule 23(b)(2) normally "'does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.'" See Markarian v. Connecticut Mutual Life Insurance co., 202 F.R.D. 60, 70 (D.Mass. 2001) quoting Advisory Committee Note to 1966 Amended Rule 23. Rather, plaintiffs generally "may avail themselves of the rule only if injunctive or declaratory relief is the predominant remedy they seek." Markarian, 202 F.R.D. at 70, quoting, Rothwell, 191 F.R.D. at 29. See also 1 Herbert Newberg Alba Conte, Newburg on Class Actions § 4.12, at 4-43 (3d ed. 1992);Boughton v. Cotter Corp., 65 F.3d 823, 827 (10th Cir. 1995); Heartland Communications. Inc. v. Sprint Corp., 161 F.R.D. 111, 117 (D.Kan. 1995).

In determining whether monetary damages predominate in this case, Fleet asks this court to apply the test adopted in Ramirez v. DeCoster, 194 F.R.D. 348, 352 (D. Me 2000), that "monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief. . . . By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief." Ramirez, quoting Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5^th Cir. 1998) (emphasis in original); See also Murray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001) (adopting reasoning of Allison Court); Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 898 (7th Cir. 1999) (same).

The Second Circuit has recently noted that "[b]y limiting (b)(2) certification to claims involving no more than incidental damages, [this] standard . . . forecloses (b)(2) class certification of all claims that include compensatory damages (or punitive damages) even if the class-wide injunctive relief is the 'form of relief in which the plaintiffs are primarily interested.'" Robinson, 267 F.3d 147, 163 (2^nd Cir. 2001) citing Hoffman v. Honda of Am. Mfg., Inc., 191 F.R.D. 530, 535-36 (S.D.Ohio 1999). The Second Circuit declined to adopt a rigid "incidental damages" test, stating that the determination should involve an assessment of the facts of each case. Robinson v. Metro-North Commuter R.R. Co., 267 F.3d at 164. Rather, the Second Circuit instead announced an ad hoc test: "the district court may allow (b)(2) certification if it finds in its 'informed, sound judicial discretion' that (1) 'the positive weight or value [to the plaintiffs] of the injunctive or declaratory relief sought is predominant even though compensatory or punitive damages are also claimed,' and (2) class treatment would be efficient and manageable, thereby achieving an appreciable measure of judicial economy." Id. quoting Allison, 151 F.3d at 430.

Notwithstanding the differing tests regarding whether monetary relief predominates in an action, this court need not reach that issue.

[D]isputes over whether the action is primarily for injunctive or declaratory relief rather than a monetary award neither promote the disposition of the case on the merits nor represent a useful expenditure of energy. Therefore, they should be avoided. If the Rule 23(a) prerequisites have been met and injunctive or declaratory relief has been requested, the action usually should be allowed to proceed under subdivision (b)(2). Those aspects of the case not falling within Rule 23(b)(2) should be treated as incidental. Indeed, quite commonly they will fall within Rule 23(b)(1) or Rule 23(b)(3) and may be heard on a class basis.

Bertozzi v. King Louie International Inc., 420 F. Supp. 1166, 1180-81 (D.R.I. 1976), quoting, Charles Alan Wright, Alan R. Miller May Kay Kane, 7A Federal Practice and Procedure § 1775, 23 (2d ed. 1986); see also Newberg Conte, Newberg on Class Actions, § 4.14 (3d ed. 1992).

"Nothing in the language of Rule 23 precludes certification of both an injunctive class and a damages class in the same action. In fact, where injunctive relief and damages are both important components of the relief requested, courts have regularly certified an injunctive class under Rule 23(b)(2) and a damages class under Rule 23(b)(3) in the same action."Davis v. Southern Bell Tel. Tel. Co. 1993 WL 593999, 7 (S.D.Fla. 1993). See also, e.g., Waldrip v. Motorola, Inc., 85 F.R.D. 349, 353 (N.D.Ga. 1980) (certification hybridized because suit as whole was not equitable and thus did not fit within 23(b)(2)); Eubanks v. Billington, 110 F.3d 87, 96 (D.C. Cir. 1997) (in claim for monetary and injunctive relief, the "court may adopt a hybrid approach, certifying a (b)(2) class as to the claims for declaratory or injunctive relief, and a (b)(3) class as to the claims for monetary relief"); Marshall v. Electric Hose Rubber Co., 68 F.R.D. 287 (D.Del. 1975) (same). Thus, this court should certify Bond's injunctive claims pursuant to Fed.R.Civ.P. 23(b)(2).

That being said, a note to the plaintiff about the course of this action. The Trial by Jury Clause of the Seventh Amendment provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." U.S. CONST. amend. VII. It requires that when an issue is common to both legal and equitable claims in the same proceeding, the legal claim must be tried first to a jury. Robinson v. Metro-North Commuter Railroad, 267 F.3d 147, 170 (2^nd Cir. 2001). That is because once the right to a jury trial attaches to a claim it extends to all the issues necessary to resolving that claim. Id. Where a legal and equitable claim in a suit share a common factual issue, trial of the equitable claim first to a judge would foreclose the later presentation of the common issue to a jury, and thereby violate the trial by jury guarantee. See Beacon Theatres, Inc., v. Westover, 359 U.S. 500, 510-11, 79 S.C.t. 948 (1959). Thus, if plaintiff is successful in seeking a certification under Fed.R.Civ.P. 23(b)(3) as well, those claims must be tried first, or simultaneously with the injunctive claims.

Conclusion

For the reasons stated above, I recommend that plaintiff's motion for class certification be granted. Any objection to this report must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b). Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision.United States v. Valencia-Copete, 792 F.2d 4 (1^St Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1^st Cir. 1980).