Opinion
CIVIL ACTION NO. 00-3123.
February 5, 2002
AMENDED ORDER
AND NOW, this 5th day of February, 2002, following a hearing and upon consideration of plaintiff's motion for class certification (doc. no. 3), defendant's response to plaintiff's motion for class certification (doc. no. 7), plaintiff's memorandum in reply to defendant's response (doc. no. 13), defendant's supplemental memorandum in opposition to plaintiff's motion for class certification (doc. no. 52) and plaintiff's supplemental brief in support of its motion for class certification (doc. no. 54), the court finds that the plaintiff has met the requirements of Federal Rule of Civil Procedure 23(a), and that the class defined below is properly certified pursuant to Federal Rule of Civil Procedure 23(b)(3) with respect to plaintiff's claims pursuant to the Fair Debt Collection Protection Act ("FDCPA"), 15 U.S.C. § 1692,et. seq. Accordingly, it is hereby ORDERED that:
1. Plaintiff's motion (doc. no. 3) is GRANTED IN PART AND DENIED IN PART.
The plaintiff contends that three counts are appropriate for class certification: (Count I) Imposition of an Illegal Penalty; (Count IV) Unjust Enrichment; and (Count V) FDCPA.
For a suit to be maintained as a class action under Rule 23, the plaintiff must allege facts that establish the four threshold requirements of Rule 23(a). The requirements are: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. See Barnes v. American Tobacco Co., 161 F.3d 127, 140 (3d Cir. 1998). Additionally, the plaintiff must allege that the action qualifies for class treatment under at least one subdivision of Rule 23(b). See id. In this action, the plaintiff seeks certification under Rule 23(b)(3). Under Rule 23(b) (3), a class action will be appropriate where "the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b).
The plaintiff satisfies the requirements for class certification with respect to the FDCPA (Count V). Specifically, the numerosity requirement is met because the class consists of approximately 2,830 Let's Talk Cellular and Wireless (LTCW) customers. This class is so numerous as to make joinder of all members impractical. See In re the Prudential Ins. Co. of Am., 148 F.3d 283, 209 (3d Cir. 1998) (citing Fed.R.Civ.P. 23 (a)(1)). The commonality requirement has been satisfied because the defendant engaged in standardized conduct toward the putative class members. The defendant sent each of the putative class members the same form collection letter, and thus the putative class members share common questions of law and fact. See Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). The plaintiff satisfies the typicality requirement, as he will present the same evidence, based on the same legal theories, to support both his claim and that of the class members. See Prudential, 148 F.3d at 311. Finally, the plaintiff will fairly and adequately represent the class. The plaintiff's attorneys are qualified and experienced in class action litigation, and the plaintiff's interest are not antagonistic to those of the class he seeks to represent. See id. at 312-13.
Under Rule 23(b)(3), the plaintiff must demonstrate that the questions of law or fact common to the members predominate and that the class action is a superior method for resolving the litigation. See id. at 315. As the court has noted, there are common questions of law and fact in this matter. Common issues predominate over individual issues where the plaintiff, as he has done here, alleges a common course of conduct on the part of the defendant with respect to all putative class members. See id. at 314-15. The class meets the superiority requirement because it is a consumer class action that seeks to address violations against a large number of individuals. Thus, the motion for class certification with respect to claims arising out of the FDCPA is granted.
Nevertheless, although the plaintiff has satisfied the requirements for class certification under the FDCPA, the plaintiff has failed to show that the class should be certified with respect to the state law claims of unjust enrichment and imposition of an illegal penalty. Specifically, the plaintiff has not demonstrated that there are common questions of law with respect to these causes of action. The plaintiff has not provided a conflicts of law analysis to demonstrate which state law should apply, nor has he demonstrated that such causes of action exist in all the relevant jurisdictions. See Lyon v. Caterpillar, Inc., 194 F.R.D. 206, 220-21 (E.D. Pa. 2000). See also Walsh v. Ford Motor Co., 807 F.2d 1000, 1017 (D.C. Cir. 1986) (citing In re School Asbestos Litig., 789 F.2d 996, 1010 (3d Cir. 1986)) (noting that it is plaintiff's burden to "credibly demonstrate through an `extensive analysis' of state law variances `that class certification does not present insuperable obstacles'"). Thus, the plaintiff has not satisfied the requirements under Rule 23(a)(1) nor Rule 23(b)(3). Accordingly, the motion for class certification with respect to the common law claims of unjust enrichment and imposition of illegal penalty is denied.
2. The class is conditionally certified under to Rule 23(b)(3) for purposes of liability, statutory damages and actual damages pursuant to the FDCPA.
3. The class is defined as follows:
All present and former customers of Let's Talk Cellular and Wireless (LTCW) to whom, during the one year period prior to the filing of the action, defendant ProCollect, Inc., mailed a debt collection letter (that was substantially in the form of Exhibit B to the Amended Complaint) or which represented an amount due of $520.00.
The case is now proceeding against only ProCollect, as the plaintiff obtained relief from LTCW through a bankruptcy claim in the Bankruptcy Court in the District of Delaware.
4. Richard Schilling is certified as the representative of the plaintiff class; and
5. James A. Francis and Mark D. Mailman of Francis Mailman, P.C. and Michael D. Donovan and David A. Searles of Donovan Searles, LLC shall serve as Co-Lead Counsel.