Ortez v. Morton

Filing 25

REPORT AND RECOMMENDATIONS recommending denial of 18 MOTION to Certify Class filed by Herman Ortez. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objecti ons (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 4/12/2019. Signed by Judge Christopher J. Burke on 3/29/2019. (dlb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HERMAN ORTEZ,
Plaintiff,
V.

MICHAEL P. MORTON, P.A.,
Defendant.

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Civil Action No. 18-561-MN-CJB

REPORT AND RECOMMENDATION
In this action filed by Plaintiff Herman Ortez ("Plaintiff') against Michael P. Morton,
P.A. ("Defendant"), Plaintiff alleges violations of the Fair Debt Collection Practices Act
("FDCP A"). Presently before the Court is Plaintiffs Motion for Class Certification and
Appointment of Class Counsel ("Motion"), (D.I. 18), which is opposed by Defendant. For the
reasons that follow, the Court recommends that Plaintiffs Motion be DENIED. 1

I.

BACKGROUND

A.

Factual Background

Plaintiff Herman Ortez is a resident of New Castle County, Delaware, (D.I. 1 at ,r 12),
who formerly owned property at Le Pare Condominiums ("Le Pare"), (D.I. 20-2 at ,r 6).
Defendant, Michael P. Morton, P.A., is a law firm based in Greenville, Delaware, (D.I. 1 at ,r

Pursuant to 28 U.S.C. § 636, the Court issues its decision as a Report and
Recommendation. See 28 U.S.C. § 636(b)(1 )(A) ("a judge may designate a magistrate judge to
hear and determine any pretrial matter pending before the court, except a motion ... to dismiss
or to permit maintenance of a class action"); see also 28 U.S.C. § 636(b)(l)(B) ("a judge may
also designate a magistrate judge ... to submit to a judge of the court proposed findings of fact
and recommendations for the disposition, by a judge of the court, of any motion excepted in
subparagraph (A)").

16), which represents the Association of Unit Owners of Le Pare Condominiums (the
"Association"), (id., ex. 1).
On or about February 21, 2018, Defendant sent a letter to Plaintiff (the "letter" or the
"Feb. 21 letter"). (Id. at 123; see also id., ex. 1) The letter explains there "is a substantial and
critical life-safety infrastructure problem at Le Pare" and that in order to address that issue, "an
assessment on all Unit Owners was made last summer to bring in dollars to begin the first phase
of the professional work that must be done[.]" (Id., ex. 1 at 1) The letter states that although
58% of the Unit Owners had by then paid the full assessment, Plaintiff had not done so, nor had
Plaintiff agreed to a payment plan with the Association. (Id.) The letter goes on to explain that
due to Plaintiffs non-payment, the Association referred collection of Plaintiffs assessment to
Defendant. (Id. at 2) In the letter, Defendant encourages Plaintiff to either pay the assessment or
arrange for a payment plan within the next 10 days. (Id.) However, Defendant explains that if
the Association did not hear from Plaintiff within 10 days of the date of the letter, then the
Association would "be left with no choice but to move forward in the manner that is provided for
by" the "Delaware Uniform Common Interest Ownership Act, the Le Pare Condominium
Association Declaration and the Code of Regulations (collectively, the 'Covenants')." (Id.)
At the end of the letter, Defendant included a section titled "Important Disclosures[.]"

(Id.) That section read as follows:
This is an attempt to collect a debt and any information obtained
will be used for that purpose. You may dispute all or any portion
of this debt within thirty (30) days ofreceipt of this letter by
sending notice of such dispute to this office. Within ten (10) days
of receipt of such dispute, this office will send you written
verification of the debt. If you do not dispute the entire debt within
such thirty (30) day period, this office will assume the entire debt
is valid. If you dispute only a portion of this debt within such
2

thirty (30) day period, this office will assume the undisputed
balance of the debt is valid. If the creditor named herein is not the
original creditor, this office will provide you with the name of the
original creditor upon written request.
(Id.)
In all, Defendant issued a total of 17 letters that were substantially similar to the letter
described above. (D.I. 20 at ,r,r 3, 7) A total of 18 individuals residing in Delaware were mailed
one of those 17 substantially similar letters; all of these letters were mailed to an address at Le
Pare. (Id. at ,r,r 3, 5) Another such letter was mailed to an address in Delaware, but it was
returned as undeliverable; Defendant subsequently re-mailed that letter to an address in Texas.
(Id. at ,r 4)

B.

Procedural Background

Plaintiff filed his Complaint in the instant case on April 13, 2018. (D.I. 1) The
Complaint, which is styled as a class action complaint against Defendant, contains two Counts
alleging that Defendant violated certain provisions of the FDCPA. (Id.) More particularly,
Plaintiff asserts that Defendant violated the statute because the Feb. 21 letter: (1) "does not set
forth the amount of the Debt [owed by Plaintiff,]" allegedly in violation of 15 U.S.C. §
1692g(a)(l), (id. at ,r 52); (2) "does not set forth a statement that, upon the consumer's written
request within [a] thirty-day period, the debt collector will provide the consumer with the name
and address of the original creditor, if different from the current creditor[,]" allegedly in violation
of 15 U.S.C. § 1692g(a)(5), (id. at ,r 53 (emphasis in original)); and (3) includes a demand for
payment within 10 days that, when read in conjunction with other portions of the letter,
"contradicts the FDCPA's validation notice[,]" in violation of 15 U.S.C. § 1692g(b), (id. at ,r 66).

3

In the Complaint, Plaintiff defined the putative class, pursuant to Federal Rules of Civil
Procedure 23(a) and (b)(3), as follows:
All persons (a) with a Delaware address, (b) to whom Michael P.
Morton, P.A., (c) within one year before the date of this complaint,
(d) in connection with the collection of a consumer debt, (e) mailed
an initial debt collection communication not returned to Michael P.
Morton, P.A. as undeliverable (f) that (1) did not state the amount
of the debt, or (2) advised the consumer that he should within ten
(10) days from the date of the letter, either pay the now overdue
assessment, fees and penalties in full, or contact the creditor to
discuss how the consumer could arrange for a payment plan that
will postpone collection actions by Michael P. Morton, P.A., or (3)
did not state that upon the consumer's written request within the
thirty-day period, Michael P. Morton, P.A. would provide the
consumer with the name and address of the original creditor, if
different from the current creditor.
(Id. at ,i 3 5) Then, in his opening brief regarding the Motion, Plaintiff sought to modify that

proposed class definition slightly, to now include "[a]ll persons with an address in the United
States ... to whom Michael P. Morton, P.A. mailed an initial communication that [had the
characteristics described in the above-referenced portion of the Complaint]." (D.I. 19 at 1);
Wiesfeld v. Sun Chem. Corp., 84 F. App'x 257,259 (3d Cir. 2004) (noting that a plaintiff may

revise his class definition in a motion for class certification). 2 Thus, in light of the way the class
is now defined by Plaintiff and in light of the facts set out in Section I.A above, 19 persons
(including Plaintiff) could possibly be a part of that class. (D.I. 20 at ,i 8; D.I. 22 at 3)
Plaintiff filed the instant Motion on August 31, 2018, (D.I. 18), and the Motion was
referred to the Court by District Judge Maryellen Noreika on September 7, 2018, (D.I. 21).

2

Plaintiff explains that the rationale for altering the class definition was to more
explicitly include in the putative class the one Le Pare resident to whom Defendant had to remail the Feb. 21 letter; this is the letter that was re-mailed to a Texas address, after it was
originally returned as undeliverable. (D.I. 19 at 1 n.1)
4

Briefing on the Motion was completed on October 4, 2018. (D.1. 23) The case is currently
stayed pending the resolution of the Motion. (See August 6, 2018 Oral Order)

II.

LEGAL STANDARD
Rule 23(a) states as follows:
One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:
( 1) the class is so numerous that j oinder of all members is
impracticable [the "numerosity requirement"];
(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.

Fed. R. Civ. P. 23(a). Class certification requires a district court to delve beyond the pleadings
and to determine whether each of the requirements set out in Rule 23(a) are satisfied. In re

Modafinil Antitrust Litig., 837 F.3d 238,248 (3d Cir. 2016); In re Hydrogen Peroxide Antitrust
Litig., 552 F.3d 305, 315-16 (3d Cir. 2008). 3

3

In addition, in order to certify a class, "the Plaintiff must show that the class
action falls within one of the three types enumerated in Rule 23(b)[.]" Gayle v. Warden
Monmouth Cty. Corr. Inst., 838 F.3d 297,309 (3d Cir. 2016). If a class action is brought under
Rule 23(b)(3) (as it is in this case), (D.1. 19 at 5), that part of the Rule requires that: (1) common
questions of law or fact predominate; and (2) the class action is the superior method for
adjudication. In re Modafinil Antitrust Litig., 837 F.3d at 248; see also Fed. R. Civ. P. 23(b)(3).
Additionally, a plaintiff seeking certification of a Rule 23(b)(3) class must also show that the
class is ascertainable by demonstrating: "(1) the class is defined with reference to objective
criteria; and (2) there is a reliable and administratively feasible mechanism for determining
whether putative class members fall within the class definition." Byrd v. Aaron's Inc., 784 F.3d
154, 163 (3d Cir. 2015) (internal quotation marks and citation omitted).
5

"The party seeking certification bears the burden of establishing each element of Rule 23
by a preponderance of the evidence." In re Modafinil Antitrust Litig., 837 F.3d at 248 (internal
quotation marks and citation omitted); see also In re Hydrogen Peroxide Antitrust Litig., 552
F.3d at 320. In other words, "to certify a class the district court must find that the evidence more
likely than not establishes each fact necessary to meet the requirements of Rule 23." In re

Hydrogen Peroxide Antitrust Litig., 552 F.3d at 320.

III.

DISCUSSION
Defendant's only challenge to Plaintiffs showing regarding class certification relates to

one of the four factors set out in Rule 23(a): the numerosity requirement. Defendant argues that
Plaintiff has failed to satisfy that requirement, and that this is "fatal to [Plaintiff's] request for
class certification." (D.I. 22 at 4; see also id. at 1)4
Rule 23(a)(l) sets forth the numerosity requirement; as noted above, the Rule states that
the requirement is satisfied when "the class is so numerous that joinder of all members is
impracticable." Fed. R. Civ. P. 23(a)(l ). "The text is, however, conspicuously devoid of any
numerical minimum required for class certification." In re Modafinil Antitrust Litig., 837 F.3d at
249. The United States Court of Appeals for the Third Circuit has found that, generally, if the
plaintiff demonstrates that the potential number of class plaintiffs is greater than 40, the first
prong of Rule 23(a) has been met. Id. at 249-50. It has also noted that leading treatises in this
area recognize that the general rule is that: (1) classes of 20 or fewer are "usually insufficiently
numerous"; (2) a class of 41 or more is "usually sufficiently numerous" and (3) classes of

4

In light of the Court's recommendation herein-that Plaintiff has not satisfied
Rule 23(a)'s numerosity requirement-the Court need not address Plaintiffs showing as to any
other of Rule 23's requirements. Cf Gonzalez v. Corning, 885 F.3d 186, 192 (3d Cir. 2018).
6

between 21 and 40 members are given "varying treatment." Id. at 250 (internal quotation marks
and citations omitted). The Third Circuit, however, declined to set a '"floor"' at which a
putative class will fail to satisfy the numerosity requirement. Id. Instead, it noted that in a case
where the putative class is less than 40 members, the district court's fact-based analysis of the
numerosity requirement should be "particularly rigorous[.]" Id.
In analyzing numerosity, district courts should consider a non-exhaustive list of relevant
factors, including: (1) judicial economy; (2) the claimants' ability and motivation to litigate as
joined plaintiffs; (3) the financial resources of class members; (4) the geographic dispersion of
class members; (5) the ability to identify future claimants; and (6) whether the claims are for
injunctive relief or for damages. Id. at 253; see Malvern Inst. for Psychiatric & Alcoholic
Studies, Inc. v. Magellan Healthcare, Inc., CIVIL ACTION NO. 16-CV-4772, 2018 WL
3831397, at *4 (E.D. Pa. Aug. 10, 2018). However, these factors are not all created equal;
'judicial economy and the ability to litigate as joined parties are of primary importance." In re
Modafinil Antitrust Litig., 837 F.3d at 253.
Here, the putative class is 19 persons, an amount that (because it is less than 40) is not
presumptively sufficient to meet the numerosity requirement and that instead is "usually
insufficiently numerous." Thus, the Court will analyze the relevant factors listed above to see
whether, despite the less-than-40 total number, Plaintiff has met his burden with regard to the
numerosity requirement.

A. Judicial Economy
The judicial economy factor "looks to the administrative burden that multiple or
aggregate claims place upon the courts." In re Modafinil Antitrust Litig., 837 F.3d at 254. "This

7

factor takes into account any efficiency considerations regarding the joinder of all interested
parties that the district court deems relevant, including the number of parties and the nature of
the action." Id. The analysis "primarily involves considerations of docket control, taking into
account practicalities as simple as that of every attorney making an appearance on the record."

Id. at 257. In analyzing this factor, the focus is on "whether the class action mechanism is
substantially more efficient than j oinder of all parties." Id. at 254 (emphasis added).
Plaintiff contends that judicial economy favors numerosity because the class members'
claims involve common legal questions (i.e., whether the Feb. 21 letter violates the FDCPA) and
factual questions (i.e., what damages should be awarded). (D.I. 19 at 11) It argues that
"[r]esolution of these issues in one action will avoid the risk of duplicative effort by multiple
judges and attorneys, as well as potentially inconsistent rulings[,]" in contrast to what would
occur if the various class members' claims were to be tried in multiple courts. (Jd.) 5
To be sure, there are some reasons why class treatment could streamline this litigation.
For example, if the class members all opted to join the case as individual plaintiffs, that would
likely involve additional process, such as that: (1) the various plaintiffs might choose to each
retain their own counsel; (2) these individual plaintiffs might make different and nonoverlapping discovery requests; and/or (3) the various plaintiffs might file non-duplicative

5

And as to the latter point, Plaintiff errs in his judicial economy analysis because
he weighs the judicial economy of a class action against the judicial economy of individual suits,
notjoinder. Rule 23(a)(l), however, requires that the class be so numerous thatjoinder of all
members is impracticable. Fed. R. Civ. P. 23(a)(l). Therefore, the judicial economy of class
actions is supposed to be examined in light of the practicality of joinder, not in comparison to the
potential for individual suits brought in different courts. See In re Modafinil Antitrust Litig., 837
F.3d at 258 ("the numerosity rule does not envision the alternative of individual suits; it
considers only the alternative of joinder").
8

motions as to certain subject matter. See In re Modafinil Antitrust Litig., 837 F.3d at 257; see

King Drug Co. ofFlorence, Inc. v. Cephalon, Inc., No. 2:06-CV-1797, 2017 WL 3705715, at *7
(E.D. Pa. Aug. 28, 2017); see also (D.I. 23 at 5 (Plaintiff referencing the possibility that if
plaintiffs are successful, this Court might be faced with various motions on the "right to
attorney's fees from up to 19 different parties")).
And yet there are more compelling reasons why class certification would not be
substantially more efficient thanjoinder. For one thing, the nature of the dispute in this case is
about as cabined as it gets. The key issues revolve around the legal effect of one letter that was
sent to only 19 different persons. (D.I. 19 at 14 (Plaintiff noting that "[t]he sole and dispositive
legal question is whether [the] Verification Notice violates the FDCPA.")) Thus, it is hard to
believe that the scope of discovery and motions practice will be significant. Moreover (and even
assuming that all 19 putative class members are joined as plaintiffs), because the number of
plaintiffs is not unduly large, it should not be overly difficult for this Court to deal with
associated logistical issues. 6 Indeed, in patent litigation or asbestos litigation matters that are
regularly filed in our Court, it is not unheard of for the number of parties to approach or exceed
the number that might likely be involved in this case viajoinder. Cf Wright v. Ristorante La

Buca Inc., CIVIL ACTION NO. 18-2207, 2018 WL 5344905, at *9 & n.71 (E.D. Pa. Oct. 26,
2018) (noting, in finding that judicial economy concerns did not support certification as to a
maximum class of 22 employees, that the court had recently tried a similar case as to 15

6

Of course, there is no guarantee that all 19 putative class members will even join
Plaintiffs suit. See Christiana Mortg. Corp. v. Delaware Mortg. Bankers Ass'n, 136 F.R.D. 372,
378 (D. Del. 1991) ("Courts have noted, for example, thatjoinder and intervention may be far
simpler procedures because it is likely that not all the proposed class members will seek to join
the suit.").
9

employees without delay or prejudice). Additionally, in a case like this, even if the various
plaintiffs had individual counsel, it is to be expected that they would engage in "cost and
resource sharing mechanisms" to help mitigate judicial economy concerns (such as joining in
motions or responses to motions that were prepared by counsel for another plaintiff). Cf King

Drug Co., 2017 WL 3705715, at *8 (finding that this factor weighed against certification in a
complex case involving approximately 25 class members, where there was evidence showing
that the class members had engaged in a "multitude of cost and resource sharing tactics" in the
case).
For the above reasons, when comparing the efficiencies here, the Court does not see how
a class action is "substantially more efficient thanjoinder of all parties." In re Modafinil

Antitrust Litig., 837 F.3d at 254. This factor thus favorsjoinder.
B. Ability and Motivation to Litigate as Joined Plaintiffs
The "ability and motivation of parties to litigate as joined plaintiffs" factor primarily
concerns the "stakes at issue for the individual claims and the complexity of the litigation, which
will typically correlate with the costs of pursuing [such] claims." In re Modafinil Antitrust Litig.,
837 F.3d at 257. This factor is relevant to another purpose of the numerosity requirement:
"further[ing] the broader class action goal of providing those with small claims reasonable access
to a judicial forum for the resolution of those claims." Id. (internal quotations and citations
omitted). If joinder would be "uneconomical for an individual with a negative value claim (after
factoring in the costs oflitigation, including hiring counsel and seeking discovery), that tends to
weigh in favor of certification. Id.; see also Tompkins v. Farmers Ins. Exch., No. 5:14-CV-3737,
2017 WL 4284114, at *4 (E.D. Pa. Sept. 27, 2017) (finding that this factor weighed in favor of

10

certification where the "maximum average value of the class members' claims was $5,586,"
which was a "relatively low figure in comparison with the potential complexity of the issues
involved").
Here the ability and motivation of the putative class to litigate as joined plaintiffs in this
case seems low. Recovery under the FDCPA is capped at $1,000 per plaintiff, 15 U.S.C.A. §
1692k(a)(2)(A), and although this litigation may not be particularly complex, "the size of the
individual [FDCPA] claims is usually so small there is little incentive to sue individually."

Schwarm v. Craighead, 233 F.R.D. 655,664 (E.D. Cal. 2006) (internal quotation marks and
citation omitted); see also Weiss v. Regal Collections, 385 F.3d 337,345 & n.13 (3d Cir. 2004)
(noting that "meritorious FDCPA claims might go unaddressed [absent class actions] because the
awards in an individual case might be too small to prosecute an individual action" and that
"[ c]lass actions may be well-suited to the FDCPA"), abrogated on other grounds, Campbell-

Ewald Co. v. Gomez, 136 S.Ct. 663 (2016); Agan v. Katzman & Karr, P.A., 222 F.R.D. 692, 701
(S.D. Fla. 2004) (same). 7 For this reason, this factor weighs in favor of class certification.

C. Financial Resources of Class Members
With regard to the next factor, the financial resources of the class members, the Court has
little information. Plaintiff acknowledges that he "has not had the opportunity to adduce
evidence regarding the financial resources of each member of the putative class." (D.I. 19 at 12)
And Defendant adds nothing to the record on this point.

7

Cf Wallingv. Brady, No. CN.A. 94-410 MMS, 1995 WL 447658, at *3 (D. Del.
July 19, 1995) (finding the numerosity requirement to be met in a class action matter involving
issues relating to pension fund benefits, and describing a claim of $2,700 per plaintiff as
"uneconomical" and favoring class certification).
11

Plaintiff nevertheless argues that because putative class members owe a debt to the
Association (i.e., they, like Plaintiff, did not pay the assessment), they are "unlikely to have
significant financial resources." (Id.) However, the Court does not think that one thing follows
from the other. There may be all kinds of reasons why class members did not pay the
assessment, many of which could have nothing to do with ability to pay (e.g., they had a
principled disagreement with the contentions in the letter, or they hoped that by ignoring the
letter, Defendant and the Association would simply go away). 8
In the end, for the above reasons, the Court finds this factor to be neutral.

D. Geographic Dispersion of Class Members
As for the geographic dispersion factor, courts in this Circuit have noted that when a class
has members dispersed throughout the United States, that could cause "substantial difficulty [in]
conduct[ing] discovery efficiently and [] coordinat[ing] the litigation." In re Wellbutrin XL
Antitrust Litig., No. 08-2431, 2011 WL 3563385, at *4 (E.D. Pa. Aug. 11, 2011) (coming to this
conclusion in a case involving 30 entities, which were located in 14 different states and Puerto
Rico). Courts also examine the practicability of joinder in light of the geographic dispersion of
putative class members. See Am. Sales Co. v. SmithKline Beecham Corp., 274 F.R.D. 127, 133
(E.D. Pa. 2010) (discussing the practicability of joinder in a proposed class of 33 putative class

8

Defendant, for its part, argues that "[t]he financial resources of the putative class
members is a non-factor in fee shifting cases such as FDCPA cases." (D.I. 22 at 7) But
Defendant cites no case law in support of such a position. And even though the FDCPA includes
a fee-shifting provision, that does not mean that class plaintiffs will be free of financial burden in
such cases. Even if a class plaintiff hires an attorney who works on a contingency basis, the
attorney might well require upfront payments for litigation costs. (D.I. 23 at 7) That prospect
might vex a party with little cash on hand. And, of course, a class plaintiff with little means
might be worried about losing their case, such that the fee-shifting statute would not end up
playing to his or her benefit. (Id.)
12

members spread across 14 states); see also Vinson v. Seven Seventeen HB Philadelphia Corp.,
No. Civ. A. 00-6334, 2001 WL 1774073, at *17 (E.D. Pa. Oct. 31, 2001) (assessing the
practicability of joinder in light of the geographic dispersion of 11 named plaintiffs).
As to this factor, Plaintiff provided evidence (by way of a declaration and some
associated internet-based address information) suggesting that as of mid-2018, one class member
probably lived in New Jersey, one in Arizona and one in Florida; a fourth class member had
addresses associated with both Delaware and Maryland. (D.I. 23-1 at ,r,r 4-14 & exs. 1-5) And
Plaintiff notes that a fifth class member-the one to whom a letter was returned as undeliverable,
with the letter subsequently being re-sent to an address in Texas-might live in Texas. (D.I. 19
at 10; D.I. 20 at ,r 4) (Defendant, without citation to the record, states that this last individual has
"since returned to his Le Pare residence" and thus lives in Delaware.). (D.I. 22 at 9 n.3; see also
id. at 3; D.I. 23 at 3 n.3) Presumably, in light of the fact that they resided at Le Pare as of the

date of the Feb. 21 letter, the remainder of the 19 putative class members still live there (or
elsewhere in this State).
For its part, Defendant dismisses any suggestion that geographic dispersion matters here.
It argues that since Defendant is only subject to personal jurisdiction in Delaware, all potential
plaintiffs (no matter where they now live) would have to bring suit in Delaware, regardless of
whether the parties are joined or in a class. (D.I. 22 at 7, 9) The issue here, however, is not
about where the plaintiffs would have to sue. Instead, it is about whether the plaintiffs' practical
ability to litigate will be compromised by the fact that some plaintiffs reside out-of-state.
Yet on that question, Plaintiff does not really articulate why if a few class plaintiffs live in
different states, this means Plaintiffs' overall case will be hindered. In that regard, it is worth

13

noting that two of the potentially out-of-state class plaintiffs have listed addresses within 100
miles of Wilmington. (D.I. 23-1, ex.I) This leaves only three putative class members (at most)
who may be truly geographically dispersed. (Id); see also Christiana Mortg. Corp. v. Delaware

Mortg. Bankers Ass'n, 136 F.R.D. 372,378 (D. Del. 1991) (finding that geographic dispersion
did not make joinder impracticable where the 28 putative class members were located "either in
the state of Delaware of within 100 miles of Wilmington").
On this record, the Court is willing to infer only that it would be a bit more difficult for
the plaintiffs' group to work as a collective whole, in light of the fact that a few members of the
class live far away. Without more specificity from Plaintiff, however, the Court is not willing to
go further. Cf Martignetti v. Bachman, CV 10-00548 DMG (ANx), 2011 WL 13257439, at *3-5
(C.D. Cal. Nov. 28, 2011) (finding that "geographical diversity is not an overwhelming barrier to
joinder as the majority of the [19 to 41] potential class members resided in California [and] all
but one of the potential out-of-state class members live in nearby Nevada").
Thus, this factor only slightly favors certification over joinder.

E. Ability to Identify Future Claimants
With regard to the "ability to identify future claimants" factor, it appears that ''the
putative class member[s] [are] limited and defined to the nineteen (19) individuals identified[.]"
(D.I. 22 at 10) Thus, this factor weighs against certification, as a class action construct is not
required to help identify and bring other class members to the courthouse. See Wright, 2018 WL
5344905, at * 10 (finding, as to this factor, that where both parties confirmed that there were a
maximum of22 class members and "no future claimants" the factor "strongly favors joinder over
class treatment"); see also Malvern Institute, 2018 WL 3831397, at *5 (suggesting that this

14

factor militates against class certification where "identification of any future claimants would
seem to be ... a relatively simply process with the result that if any such claimants were
interested in joining this litigation, they would find it fairly easy to do so").

F. Whether the Claims are for Injunctive Relief or Damages
As to the final factor, it is undisputed that Plaintiff seeks only damages and does not seek
injunctive relief. (D.I. 22 at 10) This factor thus "favors joinder over class treatment." Wright,
2018 WL 5344905, at *10; see also King Drug, 2017 WL 3705715, at *11 (noting that "[t]his
factor weighs in favor of class certification where the claims are for injunctive relief rather than
damages" and "weighs against certification" if plaintiffs are not seeking injunctive relief).

G. Conclusion
Here, the factors relevant to the numerosity requirement are mixed. The two factors that
are of "primary importance" are split, with one Gudicial economy) favoring joinder and the other
("the claimants' ability and motivation to litigate as joined plaintiffs") favoring class
certification. As for the other factors, two favor joinder ("the ability to identify future claimants"
and "whether the claims are for injunctive relief or for damages"), one favors class certification,
though only slightly ("the geographic dispersion of class members") and one is neutral ("the
financial resources of class members"). This outcome is not necessarily surprising, considering
the facts of this case. It is a case that, on the one hand, involves the FDCPA, a statute that
typically lends itself to class action suits. And yet on the other hand, it is a manageable case
involving a limited number of potential class members (who are largely concentrated in

15

Delaware, due to the fact that the dispute originated over an assessment at one Delaware
condominium). 9
In the end, the Court concludes that Plaintiff has not met his burden to show that the
evidence weighs in favor of class certification. The relevant factors seem more heavily weighted
toward j oinder; at best for Plaintiff, the evidence on each side balances out. And in light of that,
the Court returns to the Third Circuit's guidance: that classes of 20 or fewer are "usually
insufficiently numerous[.]" That is the case here, as the Court will be well able to manage this
litigation-one consisting of a limited, known number of plaintiffs and narrow legal and factual
questions at issue-without certifying a class. Cf Reyes v. Julia Place Condominium

Homeowners Ass 'n, Inc., CIVIL ACTION NO. 12-2043, 2017 WL 430056, at *1-2 (E.D. La.
Jan. 31, 2017) (decertifying a class of 18 condominium owners who paid allegedly usurious late
fees on numerosity grounds in an FDCPA case, where only damages were at issue and where
plaintiffs had no difficulty in locating or identifying the putative class members, even though
some class members were dispersed around the country); Martignetti, 2011 WL 13257439, at
*3-5 (declining to certify a class in an FDCPA case due to lack ofnumerosity, where the putative
class contained anywhere from 19 to 41 class members, all but one of whom lived in either
California or Nevada, and where the relief sought was primarily monetary in nature).

9

In his opening brief, Plaintiff provides a string citation to seven cases, which were
all said to be cases where district courts in this Circuit "certified class actions, like here, based on
form communications and standardized debt collection activity." (D.I. 19 at 7-8) However, in
addition to any other differences that existed in those cases as compared to the instant matter, in
every one of the seven cases, the putative class included hundreds (and at times, thousands) of
people. For that reason alone, the cases are not particularly comparable to this one.
16

IV.

CONCLUSION
For the foregoing reasons, the Court recommends that Plaintiffs Motion be DENIED. 10
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.

Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b)(2). The failure of a party to object to legal conclusions may result in the
loss of the right to de novo review in the district court. See Henderson v. Carlson, 812 F.2d 874,
878-79 (3d Cir. 1987); Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1 (3d Cir. 2006).
The parties are directed to the Court's Standing Order for Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the District Court's website,
located at http://www.ded.uscourts.gov.

Dated: March 29, 2019
Christopher J. Burke
UNITED STATES MAGISTRATE JUDGE

10

In his reply brief, Plaintiff asks that if this Court denies class certification, that it
"should direct the parties to send notice to putative class members so that they can be made
aware of their claims prior to the expiration of the statute oflimitations and seek to join this case
should they so desire." (D.I. 23 at 9) The Court hereby ORDERS that by no later than 7 days
from the date of this Report and Recommendation, Defendant shall submit a letter of no more
than two single-spaced pages indicating whether (in the event that the District Court affirms this
Report and Recommendation) Defendant will object to this request (and if so, why).
17