Opinion
Civil Action 99-D-925-N
August 15, 2001
Before the court is Plaintiff Willie Bell Jones's6 Motion To Alter, Amend or Vacate 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
Plaintiff brief, which was filed filed May 8, raises four arguments, which the court addresses below.
A. Plaintiff's Arguments 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. The court disagrees.
Although the Uniform Scheduling Order state that 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. If the court is not satisfied, then certification is unconscionable, regardless of whether the non-movant opposed the motion. See Gilchrist, 733 F.2d at 1556. Put another way, the Uniform Scheduling Order must be read consistently with the Due Process Clause. 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 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 Charles S. Coody that Olsten engaged in "legal gamesmanship." 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. Plaintiff reads too much into the court's finding.
A district court reviewing a magistrate judge's orders and modifies or sets aside only those portions of orders "found to be clearly erroneous or contrary to law." FED. R. Civ. P. 72(a); Rowlin v. Alabama DPS, 200 F.R.D. 459, 460 (M.D. Ala. 2001) . 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 Conv. Stores, 199 F.R.D. 366, 368-69 (M.D. Ala. 2001).
The court upheld Judge Coody's order because "Olsten did not take affirmative steps to stay discovery." After all, it was this failure to stay that primarily drew Judge Coody's ire in the first instance. The court's order states:
Upon consideration of [Judge Coody's] reasons, 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.
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 argument. Since November 7, 2000, Plaintiff has known that the letters from Olsten would be pertinent to his case. Nevertheless, Plaintiff waited some four months from filing his initial document request to file his motion to compel. Plaintiff, who is represented by one of the largest law firms in Alabama, bears some responsibility for the prosecution of his claims. See Strickland v. Wayne Farms-Southland Hatchery, 132 F. Supp.2d 1331, 1332 (M.D. Ala. 2001) . If it was obvious that Olsten 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. 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 himself, 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."
There is obvious tension in that Plaintiff, on the one hand, claims to have knowledge about the substantive contents of the letters while he admits, on the other hand, that he has not received any of the letters. Furthermore, the court has previously informed Plaintiff that his letter differs in at least two respects from the letter received by the other 12 members of the Roy subclass.7 Plaintiff's letter indicated that he "may" be required to pay the amount not covered by insurance "if [Plaintiff] is in fact responsible." The letter received by the other 12 members of the Roy subclass simply states that the recipient "will" be responsible.
Further, the court again rejects Plaintiff's argument that the differences in the content of the letters is 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. See Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 676 (7th Cir. 2001); McCree v. Sam's Club, 159 F.R.D. 572, 575 (M.D. Ala. 1995) . Courts that 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 Serv. Ltd. P'ship, 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, supra, 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. P'ship, 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 Serv., Inc., 1994 WL 449247 (N.D. Ill. 1994) (certifying class of all persons who received one particular form letter). The court reaffirms its finding that Plaintiff's claims are atypical of the class. Therefore, class certification could offend Rule 23 and the requirements of due process. See Byes, 174 F.R.D. at 421-25.
The Olsten subclass. Plaintiff's final argument is that the court erred in finding that Plaintiff's failure to receive a letter from Olsten means he is not part of the Olsten subclass. Plaintiff contends that he 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 his Motion For Class Certification. Hhe 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 Motion To Reconsider. See Hashwani v. Barbar, 822 F.2d 1038, 1041 (11th Cir. 1987); American Home Assur. Co. v. Glenn Estess Assocs., Inc., 763 F.2d 1237, 1239 (11th Cir. 1985) (same) . 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. He never received any of the other letters sent from Olsten. He cannot expect to bind those who did. See Byes, supra.
B. Plaintiff's Proposed 21-Member Subclass Does Not Meet Rule 23's Requirements
Plaintiff also asks the court to certify a class of persons who received the same Roy letter that he received. 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 Elec. Co. v. Anaconda Am. 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. 1981).8
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. Thus, the other 20 recipients may be identified and located. The court finds that Plaintiff has not discharged his burden of showing that these individuals cannot be joined without inconvenience or difficulty.
In Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), the former Fifth Circuit recognized that the core of the numerosity requirement is "practicability of joinder, not number of interested persons per se." Id. at 267. "Practicability of joinder depends on size of the class, ease of identifying its members and determining their addresses, facility of making service on them if joined and their geographic dispersion." Id. Plaintiff cannot rely on speculation to discharge his burden. See McCree, 159 F.R.D. at 576-77; 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER MARY KAY KANE, FEDERAL PRACTICE PROCEDURE § 1762 at 164 (2d ed. 1986)
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? And, assuming some letters went elsewhere, then how many? From this sparse factual record, any answers to these questions would be wholly speculative, and supported only by vague, conclusory assertions. The court simply is not satisfied that Plaintiff would have any difficulty, much less any substantial difficulty, identifying and joining potential class members. Therefore, the court cannot find that joinder is impracticable.See McCree, supra FED. R. CIV. P. 23(a)(1)
The court also weighs the fact that class actions impose added burdens upon the judiciary, 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.9 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, 784 F.2d at 1553; Garcia, 618 F.2d at 267.
II. ORDER
For these and other reasons, it is CONSIDERED and ORDERED that Plaintiff's Motion To Alter, Amend or Vacate be and the same is hereby DENIED.