McCoy v. Millennia Tax Relief LLC et al

Filing 18

ORDER GRANTING PLAINTIFF'S 14 MOTION FOR CLASS CERTIFICATION, APPOINTMENT OF CLASS REPRESENTATIVE, AND APPOINTMENT OF CLASS COUNSEL. Representative Plaintiff Kent McCoy is appointed representative of the Class. The Court appoints Joe P. Leniski, Jr. and James Streett as Co-Lead Counsel for the Class. The Representative Plaintiff shall file a proposed notice and notice program within 30 days of the date of this Order. Signed by Judge Lee P. Rudofsky on 11/26/2024. (ldb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

KENT MCCOY, on behalf of himself
and all others similarly situated,
Case No. 4:23-cv-898-LPR

Plaintiffs,

CLASS ACTION

v.
MILLENNIA TAX RELIEF, LLC,

JURY TRIAL DEMANDED

Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR
CLASS CERTIFICATION, APPOINTMENT OF CLASS
REPRESENTATIVE, AND APPOINTMENT OF CLASS COUNSEL
In this class action brought under the Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. section 227, Plaintiff Kent McCoy (“Representative Plaintiff” or “McCoy”) has moved
for certification of a Class of natural persons to whom Defendant Millennia Tax Relief, LLC
(“Defendant” or “Millennia Tax”) sent pre-recorded robocalls which are alleged to have violated
the TCPA. Specifically, Defendant is alleged to have violated the TCPA by making calls to the
cellular telephones of Representative Plaintiff and Class Members using an “automatic telephone
dialing system” and an “artificial or prerecorded voice” as described in 47 U.S.C. section
227(b)(1), without receiving prior express consent within the meaning of the TCPA. Defendant
has not responded to the Class Certification Motion. That is “an adequate basis, without more,
for granting . . . [the] motion.” 1 Defendant has also failed to respond to Requests for Admissions
and has therefore admitted the substance of those requests under Federal Rule of Civil Procedure
36(a)(3).
1

Local Rule 7.2(f).

1

In light of Defendant’s failure to respond, and having considered all of the submissions
and arguments with respect to Plaintiff’s Motion, including Defendant’s “admissions,” the Court
concludes as follows:
I.

CLASS DEFINITION

1.

Pursuant to Federal Rule of Civil Procedure 23(b)(2) and (b)(3), the Court

certifies the following Class:
All individuals who, since September 23, 2019, received one or
more pre-recorded calls to their cellular telephones using the
term “business tax credits” and the phrase “call 818-237-4185
now.”
Excluded from the Class is Defendant and any entities in which Defendant has a controlling
interest, Defendant’s agents and employees, any Judge to whom this action is assigned and any
member of such Judge’s staff and immediate family, Plaintiff’s counsel, and any claims for
personal injury, wrongful death and/or emotional distress.
2.

Pursuant to Federal Rule of Civil Procedure 23(c)(1)(B), the Court hereby

certifies Class claims against Millennia Tax for (allegedly) violating the TCPA, 47 U.S.C.
section 227(b)(1), for sending pre-recorded robocalls without having prior express consent.
II.

CONCLUSIONS OF LAW

3.

In so holding, the Court finds that the prerequisites of Rule 23(a) have been

satisfied by a preponderance of the evidence.
4.

The Court finds, by a preponderance of the evidence, that the Class is sufficiently

numerous. Rule 23(a)(1) requires that the Class be “so numerous that joinder of all members is
impracticable.” In general, “class numbers in the 40-or-more range should have a reasonable
chance of success” in meeting numerosity, 2 although the Eighth Circuit has approved a class of
2

Riedel v. XTO Energy, Inc., 257 F.R.D. 494, 508 (E.D. Ark. 2009).

2

as low as 20 members. 3

Defendant Millennia Tax admitted to sending the prerecorded

marketing messages to at least 50,000 cellular telephone numbers. 4
5.

Rule 23(a)(2) requires that “there are questions of law and fact common to the

class.” In this case, important factual and legal questions include:
(a) Whether Millennia Tax owns or operates the phone number 818-237-4185;
(b) Whether Millennia Tax caused the pre-recorded messages to be sent to the
cellular telephones of Representative Plaintiff and other class members;
(c) Whether (and, if so, how) Millennia Tax obtained prior permission or consent
before it transmitted the pre-recorded marketing calls;
(d) Whether Millennia Tax obtained the cellular telephone numbers of Representative
Plaintiff and other class members for the purpose of sending prerecorded
messages that market its products and/or services;
(e) Whether Millennia Tax made phone calls to Plaintiff and other class members
whose phone numbers are on the National Do Not Call Registry;
(f) Whether Representative Plaintiff and the Class are entitled to equitable and/or
injunctive relief. 5
The Court finds, by a preponderance of the evidence, that at least one, likely most, and maybe all
of the foregoing issues (and potential defenses) are questions of law or fact common to the Class
that satisfy Rule 23(a)(2).

3

See Ark. Educ. Ass'n v. Bd. of Educ. of Portland, Ark. Sch. Dist., 446 F.2d 763, 765–66 (8th Cir. 1971).

4

RFA ¶ 19.

5

See RFA ¶ 30.

3

6.

The Court also finds, by a preponderance of the evidence, that the claims or

defenses of the Representative Plaintiff are typical of the claims or defenses of the Class and thus
satisfy Rule 23(a)(3). 6
7.

Representative Plaintiff Kent McCoy, the named Plaintiff herein, is hereby

appointed representative of the Class for the following reasons:
a.

Plaintiff alleges on behalf of the proposed Class the very same (or

substantially similar) manner of injury from the very same (or substantially similar) course of
conduct that he complained of for himself, and Plaintiff asserts on his own behalf the same legal
theory that he asserts for the Class. The Court therefore finds, by a preponderance of the
evidence, that the claims of the Representative Plaintiff are typical of the claims of the Class
within the meaning of Rule 23(a)(3); 7 and
b.

The Court finds, by a preponderance of the evidence, that the

Representative Plaintiff will fairly and adequately protect the interests of the Class, in
compliance with Rule 23(a)(4). The Representative Plaintiff’s interests do not conflict with the
interests of absent members of the Class. All of the Class members share a common interest in
proving that the Defendant’s conduct violated the TCPA, and all Class members share a common
interest in any recovery that may be appropriate thereunder. 8
8.

Pursuant to Rules 23(c)(1)(B) and 23(g), the Court hereby appoints Joe P.

Leniski, Jr. of Herzfeld, Suetholz, Gastel, Leniski and Wall PLLC, and James Streett of the
Streett Law Firm, P.A. as Co-Lead Counsel for the Class. The Court makes this appointment
having considered the work counsel has done in identifying or investigating the potential claims
6

See id.

7

See id.

8

See RFAs ¶¶ 30, 33.

4

in this action, counsel’s experience in handling class actions, other complex litigation and claims
of the type asserted in this action, counsel’s knowledge of the applicable law, and the resources
counsel have committed to representing the Class. 9
9.

Pursuant to Rule 23(b)(2), the Court finds, by a preponderance of the evidence,

that Defendant has (allegedly) acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding declaratory relief is (potentially) appropriate
respecting the class as a whole. 10
10.

Pursuant to Rule 23(b)(3), the Court finds, by a preponderance of the evidence,

that common issues predominate over individual issues, and that a class action is superior to
other alternative methods of adjudicating this dispute, considering: (a) the class members lack a
compelling interest in individually controlling the prosecution of separate actions; (b) the
absence of any litigation concerning the controversy that has already begun by or against
potential class members; (c) the desirability of concentrating the litigation of the claims in this
forum; and (d) the relative lack of difficulty in managing this litigation as a class action. 11
11.

The Representative Plaintiff shall file a proposed notice and notice program

within 30 days of the date of this Order.
IT IS SO ORDERED this 26th day of November 2024.

________________________________
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________
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____
______
__________
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LEE
E P.
P RUDOFSKY
RUDOFSK
KY
UNITED STATES DISTRICT JUDGE

9

See id.

10

See RFA ¶ 31.

11

See RFA ¶ 32.

5