Collins v. Erin Capital Management, LLC
Filing
47
ORDER granting 43 Motion to Certify Class. Signed by Judge Cecilia M. Altonaga on 3/21/2013. (ps1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-22839-CIV-ALTONAGA/Simonton
WILLIE COLLINS,
Plaintiff,
vs.
ERIN CAPITAL
MANAGEMENT, LLC,
Defendant.
_________________________/
ORDER
THIS CAUSE came before the Court on Plaintiff, Willie Collins’s (“Collins[’s]”) Motion
for Class Certification (“Motion”) [ECF No. 43], filed on February 6, 2013. Defendant, Erin
Capital Management, LLC (“Erin Capital”), filed its Response in Opposition to Plaintiff’s Motion
for Class Certification (“Response”) [ECF No. 44] on February 25, 2013, and Collins filed his
Reply [ECF No. 45] on March 7, 2013. The Court has carefully considered the parties’ written
submissions, oral arguments presented on March 12, 2013, and applicable law.
I. BACKGROUND
This case involves alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C.
sections 1692–1692p (“FDCPA”), committed by Erin Capital. Collins alleges Erin Capital failed to
register with the Florida Office of Financial Regulation before collecting, or attempting to collect
debts from consumers as required by the Florida Consumer Collection Practices Act, sections
559.55–559.785, Florida Statutes (2011) (“FCCPA”). (See Am. Compl. ¶ 1 [ECF No. 19]). Erin
Capital is a New York debt collector that purchases defaulted-upon credit card debts and attempts to
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collect the delinquent debts from Florida consumers. (See id. ¶¶ 4, 7–8). Collins resides in Orange
County, Florida. (See id. ¶ 4).
Erin Capital sought to collect a debt from Collins arising from his use of a Citibank
Mastercard credit card (“Citibank Mastercard”) issued to Collins. (See id. ¶ 10). Collins used the
Citibank Mastercard for “personal, family or household purposes, including but not limited to, the
purchase of such things as clothes, groceries, personal gifts, and travel-related expenses.” (Id.). On
October 5, 2011, Erin Capital initiated a garnishment proceeding against Collins in pursuit of an
alleged debt of $6,169.53 (see id. ¶ 12), and succeeded in garnishing Collins’s wages through the
state court (see id. ¶ 17). Erin Capital subsequently registered itself as a consumer collection
agency with the Florida Office of Financial Regulation on August 27, 2012. (See id. ¶ 14).
Collins filed his original Complaint [ECF No. 1] on August 4, 2012 and the Amended
Complaint on October 4, 2012.
The Amended Complaint contains two counts alleging: (1)
violations of 15 U.S.C. section 1692e (“Count I”), and (2) entitlement to restitution (“Count II”).1
(See id. ¶¶ 29–30, 31–36). Count I alleges Erin Capital’s failure to obtain a consumer debt
collection license as mandated by the FCCPA, while actively engaged in debt collection in the State
of Florida, violates various provisions of the FDCPA including 15 U.S.C. sections 1692e, 1692e(2),
1692e(5), and 1692e(10). (See id. ¶ 30). Collins asserts he has suffered actual damages “as a direct
result of the unlawful garnishment.”
(Id. ¶ 19).
Collins requests statutory damages, actual
damages, litigation expenses, and costs of the present action in connection with Count I. (See id.
10). Pursuant to Federal Rule of Civil Procedure 23, Collins also seeks to certify a class consisting
of:
1
Collins originally provided an additional class definition focused on Count II (the restitution count) of the
Amended Complaint, entitled the “Restitution Class.” (Am. Compl. ¶ 21). However, in his Motion Collins
seeks certification of the “FDCPA Class” only. (Id. ¶ 20; Mot. 7).
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(i) all persons (ii) whom were the subject of collection activity from [Erin Capital]
(iii) in an attempt to collect a debt incurred for personal, family, or household
purposes (iv) who incurred actual damages in the form of direct, indirect, voluntary,
or involuntary payment arising from or attributable to [Erin Capital]’s collection
efforts (v) during the one year period prior to the filing of the original writ of
garnishment in this action through the date of certification.
(Id. ¶ 20). Erin Capital opposes certification of this class on several grounds addressed below.
II. LEGAL STANDARD
“The class action is ‘an exception to the usual rule that litigation is conducted by and on
behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,
2550 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). “Questions concerning
class certification are left to the sound discretion of the district court.” Cooper v. Southern Co., 390
F.3d 695, 711 (11th Cir. 2004) (citing Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1386
(11th Cir. 1998)), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457
(2006). With this “great power comes great responsibility; the awesome power of a district court
must be ‘exercised within the framework of [Federal Rule of Civil Procedure] 23.’” Klay v.
Humana, Inc., 382 F.3d 1241, 1251 (11th Cir. 2004) (quoting Castano v. Am. Tobacco Co., 84 F.3d
734, 740 (5th Cir. 1996)). Thus, to be entitled to class certification, the party seeking certification
must have standing and meet each of the requirements specified in Federal Rule of Civil Procedure
23(a), as well as the requirements of at least one subsection of Federal Rule of Civil Procedure
23(b). See Klay, 382 F.3d at 1250.
Rule 23(a) “ensures that the named plaintiffs are appropriate representatives of the class
whose claims they wish to litigate.” Wal-Mart, 131 S. Ct. at 2550. Under Rule 23(a), the party
seeking class certification has the burden of showing that the four requirements of numerosity,
commonality, typicality, and adequacy of representation are satisfied. See Vega v. T-Mobile USA,
Inc., 564 F.3d 1256, 1265 (11th Cir. 2009). Rule 23(a) provides one or more members of a class
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may sue as representative on behalf of all members 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.
FED. R. CIV. P. 23(a).
The class must also satisfy one of the three additional requirements of Rule 23(b). Collins
asserts a class is appropriate under Rules 23(b)(2) and 23(b)(3). Rule 23(b)(2) provides certification
is appropriate where “the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate
respecting the class as a whole.” Alternatively, Rule 23(b)(3) provides certification is available if
the Court finds “that the questions of law or fact common to class members predominate over any
questions affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.”
In examining whether the party seeking certification has satisfied the requirements of Rule
23, the Eleventh Circuit has counseled that “[a]lthough the trial court should not determine the
merits of the plaintiffs’ claim at the class certification stage, the trial court can and should consider
the merits of the case to the degree necessary to determine whether the requirements of Rule 23 will
be satisfied.” Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1188 n.15 (11th Cir. 2003)
(citation omitted). Indeed, the Supreme Court recently acknowledged “‘sometimes it may be
necessary for the court to probe behind the pleadings before coming to rest on the certification
question,’ and that certification is proper only if ‘the trial court is satisfied, after a rigorous analysis,
that the prerequisites of Rule 23(a) have been satisfied.’” Wal-Mart, 131 S. Ct. at 2551 (quoting
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 161 (1982)). “Frequently that ‘rigorous analysis’
will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped.”
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Id.
III. ANALYSIS
A. Rule 23(a)
As stated, Collins must first satisfy the four requirements of Rule 23(a): (1) Numerosity; (2)
Commonality; (3) Typicality; and (4) Adequacy. The Court examines each requirement in turn.
1. Numerosity
With regard to the numerosity requirement, Collins must establish the class is so numerous
that joinder of all members is impracticable. See FED. R. CIV. P. 23(a)(1). As a general rule, a
group of more than forty satisfies the numerosity requirement of Rule 23, a group of fewer than
twenty-one does not, and the numbers in between are subject to judgment based on additional
factors. See Vega, 564 F.3d at 1266–67. “To meet this requirement, plaintiffs need not prove the
exact size of the proposed class, but rather need demonstrate only that the number is exceedingly
large, and joinder impracticable.” In re Infant Formula Antitrust Litig., No. MDL 878, 1992 WL
503465, at *3 (N.D. Fla. Jan. 13, 1992) (citing Anderson v. Bank of the S., N.A., 118 F.R.D. 136,
145 (M.D. Fla. 1987)). Essentially, a plaintiff seeking to certify a class must make a showing with
factual support that the numerosity will be satisfied. See Vega, 564 F.3d at 1267.
In this action the proposed class includes any consumer from the State of Florida affected by
to the specific FDCPA violations, and Collins preliminarily demonstrates at least forty-eight
potential plaintiffs are in Miami-Dade County alone. (See Mot. Ex. A [ECF No. 43-1]). Collins
maintains there are “hundreds if not thousands of other consumers throughout the state,” but the
forty-eight specifically identified provide sufficient evidence to satisfy the numerosity prong. (Mot.
12). Erin Capital does not contest this assertion. Based on the foregoing, the Court finds Collins’s
proposed class satisfies the requirement of numerosity.
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2. Commonality
The second requirement for maintaining a class action under Rule 23 is that “there are
questions of law or fact common to the class.” FED. R. CIV. P. 23(a)(2). Rule 23(a)(2) “‘does not
require that all the questions of law and fact raised by the dispute be common,’ or that the common
questions of law or fact ‘predominate’ over individual issues.” Vega, 564 F.3d at 1268 (quoting
Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir. 1986)). Rather, “[t]he commonality
requirement demands only that there be ‘questions of law or fact common to the class.’” Id.
(quoting FED. R. CIV. P. 23(a)(2)). As the Supreme Court recently explained, “[c]ommonality
requires the plaintiff to demonstrate that the class members have suffered the same injury.” WalMart, 131 S. Ct. at 2551 (internal quotation marks and citation omitted). In other words, the claim
“must depend upon a common contention” that is “capable of classwide resolution — which means
that determination of its truth or falsity will resolve an issue that is central to the validity of each
one of the claims in one stroke.” Id.
Collins alleges Erin Capital instituted various garnishment proceedings while failing to
register with the State of Florida as a consumer collection agency, in violation of the FDCPA. (See
Mot. 6). Here, the Court finds common questions of law and fact exist. The crux of the dispute is
whether Erin Capital’s failure to register as consumer collection agency qualifies as a violation of
the FDCPA. See LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1192 (11th Cir. 2010) (“We
therefore hold that a violation of the FCCPA for failure to register may, in fact, support a federal
cause of action under Section 1692e(5) of the FDCPA for threatening to take an action it could not
legally take.”). A determination of this issue would apply equally and objectively to all of the
potential plaintiffs in this action. Moreover, questions such as whether Erin Capital registered with
the Florida Office of Financial Regulation, what individuals fit within the class definition, and if the
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failure to register constitutes a violation of the FDCPA, would be better handled in one trial rather
than in many trials. Accordingly, these issues are “capable of classwide resolution” and one trial
would resolve issues that are “central to the validity of each one of the claims in one stroke.” WalMart, 131 S. Ct. at 2551 (internal quotation marks and citation omitted).
Additionally, courts have previously certified class actions for violations of the FDCPA in
other contexts. See, e.g., Agan v. Katzman & Korr, P.A., 222 F.R.D. 692, 697 (S.D. Fla. 2004)
(“The commonality element is generally satisfied when a plaintiff alleges that ‘defendants have
engaged in a standardized course of conduct that affects all class members.’” (alteration omitted)
(quoting In re Terazosin Hydrochloride, 220 F.R.D. 672, 685 (S.D. Fla. 2004))). Moreover, the
Eleventh Circuit has explained that the commonality requirement is a “relatively light burden.”
Vega, 564 F.3d at 1268. Given that common questions of fact and law exist among class members,
the present action meets the relatively light burden, satisfying the commonality prong of the Rule
23(a) analysis.
Erin Capital nevertheless contends no commonality exists because: (1) Collins is not a part
of the class he intends to represent (see Resp. 5–6, 7–8); (2) Erin Capital has a defense based on the
Rooker-Feldman doctrine2 against the putative class that it does not have against Collins (see id. 8);
and (3) the class definition will require individual inquiries to determine whether the debts incurred
were for personal, family, or household purposes (see id. 9). The Court addresses Erin Capital’s
first contention in this Part of the Rule 23(a) analysis.3
The Rooker-Feldman doctrine provides “federal district courts cannot review state court final judgments
because that task is reserved for state appellate courts or, as a last resort, the United States Supreme Court.”
Casale v. Tillman, 558 F.3d 1258, 1260–61 (11th Cir. 2009).
2
3
Although Erin Capital repeats these arguments with regard to the other requirements of Rule 23, the Court
will consider them where they are most relevant to the Rule 23 analysis. For example, Erin Capital’s
argument with respect to the individual member inquiries is more appropriately considered as part of the
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Erin Capital argues that Collins cannot represent a class of which he is not a part. To be
precise, Erin Capital asserts that because Collins’s state court judgment has been vacated, he no
longer has a judgment against him like the remainder of the class. (See id. 5–6). Collins counters
the violative acts alleged in the Amended Complaint concern Erin Capital’s initiation of a
garnishment proceeding against his wages, and not any prior state court judgment. (See Reply 3).
The Amended Complaint provides, “[o]n or about October 5, 2011, [Erin Capital] initiated
garnishment proceedings upon [Collins’s] wages.” (Am. Compl. ¶ 12). It further alleges, “[Erin
Capital] began the process of engaging in unlicensed debt collection activities by filing a request for
writ of continuing garnishment . . . and proceeded to, and did in fact garnish [Collins’s] wages.”
(Id. ¶ 17). Indeed, Collins’s proposed class definition includes individuals who were the subject of
collection activity “during the one year period prior to the filing of the original writ of
garnishment.”
(Id. ¶ 20).
Further, Collins specifically limits the class to those affected by
“garnishment action[s]” in his Motion.
(Mot. 7).
Additionally, the potential class members
identified by Collins were all subject to “Motions for Writ of Garnishment filed in Miami-Dade
County between August 4, 2012 and August 4, 2011.” (Id. Ex. A). Thus, any state court judgment
previously entered against Collins lies outside the scope of the present litigation and is not
referenced in any of the relevant pleadings or the Motion. While a prior state court judgment may
have constituted an independent collection action in violation of the FDCPA, it is not the violation
at issue here.
Erin Capital further argues Collins is analogous to the plaintiff in Thorne v. Accounts
Receivable Management, Inc., a case in which the court found the plaintiff could not serve as class
representative because she was not a member of the class. (See Resp. 7–8 (citing Thorne, 282
predominance requirement of Rule 23(b)(3). Accordingly, the Court will reserve its discussion until that Part
of the analysis and not address it here. See infra Part III.B.1.
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F.R.D. 684 (S.D. Fla. 2012))).
In Thorne, the court denied the plaintiff’s motion for class
certification as the plaintiff failed to satisfy the commonality requirement. See Thorne, 282 F.R.D.
at 693. Specifically, the court found the plaintiff had not suffered the same injuries as the putative
class members because the proposed class definition included putative class members who suffered
two specific statutory violations and the plaintiff did not have a cognizable claim under one of the
two subsections.
See id. 692–93.
In contrast, Collins alleges he suffered the same FDCPA
violation as the proposed class — namely, he is like the other individuals who were subject to a
collection action by an entity not registered as a consumer collection agency. Hence, Collins
qualifies as a member of the proposed class as he was also subject to the same garnishment
proceeding in violation of the same provisions of the FDCPA.
Erin Capital also maintains the commonality requirement is not satisfied as it “has a defense
against the putative class” based on the Rooker-Feldman doctrine “that it does not have against
Collins.” (Resp. 8). Pursuant to the Rooker-Feldman doctrine, “federal district courts cannot
review state court final judgments” as that is reserved for state appellate courts or the United States
Supreme Court. Casale, 558 F.3d at 1260 (citing Dist. of Columbia Ct. of Appeals v. Feldman, 460
U.S. 462, 482 (1983)). “The doctrine applies both to federal claims raised in the state court and to
those ‘inextricably intertwined’ with the state court’s judgment.” Id. (quoting Feldman, 460 U.S. at
482 n.16). “A claim is inextricably intertwined if it would ‘effectively nullify’ the state court
judgment,” id. (quoting Powell v. Powell, 80 F.3d 464, 467 (2009)), “or it ‘succeeds only to the
extent that the state court wrongly decided the issues,’” id. (quoting Goodman ex rel. Goodman v.
Sipos, 259 F.3d 1327, 1332 (11th Cir. 2001)).
Erin Capital contends this potential defense will only apply to the class members. Collins
no longer has a state court judgment against him, while the other class members will be necessarily
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asking the Court to review state court judgments, all in violation of the Rooker-Feldman doctrine.
Erin Capital again misunderstands the class definition. As previously addressed, the class definition
and the Amended Complaint’s allegations concern garnishment proceedings instituted against
Collins and the class members, and the garnishment proceedings are independent of any underlying
state court judgments. Erin Capital’s alternative argument regarding the lack of commonality thus
fails to persuade. Any argument pursuant to the Rooker-Feldman doctrine would necessarily affect
the state garnishment proceedings instituted against Collins and the class members, and apply to
them equally. As such, the Rooker-Feldman defense might be asserted by Erin Capital uniformly
against all of the claims, but its presence does not defeat commonality by applying to some of the
claims and not to others. The Court need not address the merits of the Rooker-Feldman defense
further in considering the Motion because this is not an instance where “proof of commonality
necessarily overlaps with [a] merits contention.” Thorne, 282 F.R.D. at 691. Again, Collins
satisfies the commonality requirement of Rule 23(a).
3. Typicality
The typicality prong requires that “the claims or defenses of the representative parties are
typical of the claims or defenses of the class.” FED. R. CIV. P. 23(a)(3). “A class representative
must possess the same interest and suffer the same injury as the class members in order to be typical
under Rule 23(a)(3).” Cooper, 390 F.3d at 713 (quoting Murray v. Auslander, 244 F.3d 807, 811
(11th Cir. 2001)). “‘[T]ypicality measures whether a sufficient nexus exists between the claims of
the named representatives and those of the class at large.’” Id. (quoting Prado-Steiman ex rel.
Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000)). Collins maintains he and the proposed class
“were each subject to [Erin Capital]’s unlicensed and unlawful collection activity.” (Mot. 14). In
opposition, Erin Capital contends Collins’s FDCPA claim is not typical of the class because he is
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not a part of the class he purports to represent — essentially a restatement of the argument made
with respect to commonality.4 (See Resp. 11).
The Supreme Court has recognized “[t]he commonality and typicality requirements of Rule
23(a) tend to merge.
Both serve as guideposts for determining whether under the particular
circumstances maintenance of a class action is economical and whether the named plaintiff’s claim
and the class claims are so interrelated that the interests of the class members will be fairly and
adequately protected in their absence.”
Falcon, 457 U.S. at 157 n.13.
For this reason, the
considerations discussed in the previous Part also advise the Court’s determination of the typicality
requirement. Erin Capital’s argument regarding Collins’s inability to represent a class of judgment
debtors remains unavailing as Collins’s claim concerns an improper garnishment action suffered by
him and the members of the class. Accordingly, a “sufficient nexus exists” between Collins’s
claims and those of the putative class to satisfy the typicality requirement of Rule 23(a)(3). Cooper,
390 F.3d at 713 (citation omitted).
4. Adequacy
The final requirement of Rule 23(a) is that “the representative parties will fairly and
adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(4). The Eleventh Circuit has
described the adequacy prong of a class certification analysis as follows:
Rule 23(a)(4) requires that the representative party in a class action must
adequately protect the interests of those he purports to represent. This adequacy of
representation analysis encompasses two separate inquiries: (1) whether any
substantial conflicts of interest exist between the representatives and the class; and
(2) whether the representatives will adequately prosecute the action. If substantial
conflicts of interest are determined to exist among a class, class certification is
inappropriate.
Erin capital further contends Collins’s claim is not typical of those in the putative class as Collins’s claim is
barred by the FDCPA one-year limitations period. (See Resp. 11–12). As this argument is referenced in
multiple instances of the Response, the Court will address it in the next Part where it is more appropriately
related to the Rule 23(a)(4) adequacy requirement.
4
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Valley Drug Co., 350 F.3d at 1189 (citations and internal quotation marks omitted). An adequate
class representative must be one willing to vigorously litigate the action on behalf of the class. See
Clausnitzer v. Fed. Express Corp., 248 F.R.D. 647, 657 (S.D. Fla. 2008).
Collins maintains he and the putative class members share “identical claims” and seek
similar damages resulting from Erin Capital’s unlawful collection practice. (See Mot. 15). Erin
Capital contends Collins cannot serve as an adequate class representative as he is not a member of
the putative class — another iteration of an argument made with respect to commonality and
typicality — and his claim is barred by the FDCPA’s limitations period. (See Resp. 13–14). The
Court has previously addressed Erin Capital’s former argument, and will not address it further. See
supra Part III.A.1.
Notwithstanding Erin Capital’s recurring argument, Erin Capital correctly
recognizes a class representative whose claim is time-barred cannot prosecute the action on behalf
of the class. (See Resp. 11 (citing Tello v. Dean Witter Reynolds, Inc., 494 F.3d 956, 974 n.17 (11th
Cir. 2007))). As such, the Court must determine whether Collins’s claim is indeed time-barred
before determining whether he can serve as an adequate class representative. See Thorne, 282
F.R.D. at 691 (“Although a district court may not resolve the merits of a case when ruling on a Rule
23 motion, . . . the court may, and sometimes must, inquire into the merits in order to determine
whether the requirements of Rule 23 have been satisfied.” (citations and internal quotation marks
omitted)).
Erin Capital asserts Collins’s claim is barred by the applicable statute of limitations because
Erin Capital filed its state court action and received a favorable judgment against Collins in 2006.
(See Resp. 14). Collins, however, maintains it is the garnishment proceeding initiated in 2011 that
triggers the applicable limitations period. (See Reply 10). The FDCPA provides a one-year statute
of limitations “from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). “The ‘date on
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which the violation occurs’ was . . . left undefined by the FDCPA.” Blakemore v. Pekay, 895 F.
Supp. 972, 983 (N.D. Ill. 1995). Various courts have defined the violation date as the date of the
debt collector’s last opportunity to comply with the FDCPA. See Naas v. Stolman, 130 F.3d 892,
893 (9th Cir. 1997) (citing Mattson v. U.S. W. Commc’ns, 967 F.2d 259, 261 (8th Cir. 1992))
(citation omitted); Maloy v. Phillips, 64 F.3d 607, 608 (11th Cir. 1995); Cooper v. F.A. Mgmt.
Solutions, Inc., No. 8:06-cv-751-T-27MAP, 2007 WL 4326800, at *4 (M.D. Fla. Dec. 7, 2007).
Erin Capital’s last opportunity to comply with the FDCPA occurred when it initiated the
garnishment proceeding against Collins. See Naas, 130 F.3d at 893. More specifically, the filing of
the garnishment proceeding established an independent violation of the FDCPA for the purpose of
calculating the limitations period. See Blakemore, 895 F. Supp. at 982–83 (finding the filing of an
application for writ of garnishment constituted “legal action on a debt” within the purview of the
FDCPA and triggered the beginning of the one-year limitations period (quoting Fox v. Citicorp
Credit Svcs., Inc., 15 F.3d 1507, 1515 (9th Cir. 1994))). Erin Capital initiated the garnishment
proceeding against Collins on October 5, 2011 (see Am. Compl. ¶ 12), and Collins filed his
Complaint on August 4, 2012 and the Amended Complaint on October 4, 2012. Thus, the initiation
of the garnishment proceeding against Collins fell within the one-year limitations period in the
FDCPA, see 15 U.S.C. § 1692k(d), and Collins’s claims are not barred by the applicable limitations
period.
Erin Capital nevertheless argues “[a] debt collection attorneys’[sic] participation in ongoing
litigation is not a continuing FDCPA violation that would bring an otherwise barred FDCPA suit
within the FDCPA’s one-year statute of [limitations].” (Resp. 14 (citing Schaffhauser v. Citibank
(S.D.), 340 F. App’x 128, 131 (3d Cir. 2009))). Erin Capital further argues a continuing attempt to
prosecute a case is not itself a discrete debt collection activity. (See id. (citing Jones v. U.S. Bank
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Nat’l Ass’n, No. 10 C 0008, 2011 WL 814901, at *5 (N.D. Ill. Feb. 25, 2011))). However, neither
case addresses the present scenario where a debt collector files an independent garnishment action
in state court. Rather, the plaintiffs in Schaffhauser and Jones argued the limitations period should
be tolled while the debt collection agencies continued to litigate their initial court filing. See
Schaffhauser, 340 F. App’x at 131 (finding participation in “ongoing debt collection litigation” did
not bring the violation within the limitations period); Jones, 2011 WL 814901, at *5 (rejecting
plaintiff’s claim that the violation recurred “on each and every day until the present,” and holding
the only qualifying activity was the initiation of the proceeding). Here, Collins makes an entirely
distinct FDCPA violation claim — separate from a claim that may have been available as a result of
an earlier state court judgment — alleging the violation occurred when a new garnishment
proceeding was filed against him. Collins’s assertion that the initiation of a new proceeding
constitutes an independent violation is amply supported by the applicable case law, as the filing of
the garnishment proceeding gave Erin Capital a final opportunity to comply with the FDCPA. See
Naas, 130 F.3d at 893; Maloy, 64 F.3d at 608; Blakemore, 895 F. Supp. at 983.
While Erin Capital acknowledges the existence of some cases which support Collins’s
position, Erin Capital also asserts its “arguable” statute of limitations defense defeats the adequacy
requirement and the present Motion. (See Resp. 14 (citing CE Design Ltd. v. King Architectural
Metals, Inc., 637 F.3d 721, 726 (7th Cir. 2011))). In CE Design the court held, “‘The presence of
even an arguable defense peculiar to the named plaintiff . . . may . . . bring into question the
adequacy of the named plaintiff’s representation. The fear is that the named plaintiff will become
distracted by the presence of a possible defense applicable only to him so that the representation of
the rest of the class will suffer.’” CE Design Ltd., 637 F.3d at 726 (quoting J.H. Cohn & Co. v. Am.
Appraisal Assocs., Inc., 628 F.2d 994, 999 (7th Cir. 1980)). However, Erin Capital’s purported
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statute of limitations defense against Collins has already failed. The initiation of the garnishment
proceeding against Collins constituted a new violation, which falls within the one-year limitations
period of the FDCPA. As such, there is no “arguable” defense precluding the satisfaction of Rule
23(a)’s adequacy requirement.
In sum, Collins and the putative class members seek damages for the same unlawful
collection practices, and their interests generally align. Since Collins is not subject to a defense
based on the FDCPA’s limitations period, he can sufficiently serve as the class representative.
Accordingly, the Motion satisfies the adequacy prong of the Rule 23(a) analysis.
B. Rule 23(b)
In addition to establishing the elements of Rule 23(a), Collins must also show he satisfies at
least one of the conditions of Rule 23(b). See Klay, 382 F.3d at 1250. Although Collins initially
asserted a class is appropriate under Rules 23(b)(2) and (b)(3) (see Mot. 15–18), Collins’s failure to
rebut Erin Capital’s argument that he does not satisfy the requirements of Rule 23(b)(2) (see Reply)
— and counsel’s admission during oral argument that Collins no longer seeks injunctive relief (see
[ECF No. 46]) — demonstrates that only Rule 23(b)(3) applies to this case. Rule 23(b)(3) requires
finding both (1) “that the questions of law or fact common to class members predominate over any
questions affecting only individual members,” and (2) “that a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy.” FED. R. CIV. P. 23(b)(3);
see also Vega, 564 F.3d at 1277. These requirements are known as predominance and superiority.
See Behrend v. Comcast Corp., 655 F.3d 182, 190 (3d Cir. 2011).
1. Predominance
Predominance “is perhaps the central and overriding prerequisite for a Rule 23(b)(3) class.”
Vega, 564 F.3d at 1278. “Common issues of fact and law predominate if they ‘ha[ve] a direct
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impact on every class member’s effort to establish liability and on every class member’s entitlement
to injunctive and monetary relief.’” Klay, 382 F.3d at 1255 (quoting Ingram v. Coca-Cola Co., 200
F.R.D. 685, 699 (N.D. Ga. 2001)) (alteration in original).
“Where, after adjudication of the
classwide issues, plaintiffs must still introduce a great deal of individualized proof or argue a
number of individualized legal points to establish most or all of the elements of their individual
claims, such claims are not suitable for class certification under Rule 23(b)(3).” Id. (citation
omitted). Erin Capital opposes certification because it asserts Collins cannot prove the putative
class members’ claims are based upon consumer debts, and individual inquiries would be necessary
to establish that element of the claim. Additionally, Erin Capital restates its earlier arguments.
These arguments have already been rejected, and they do not defeat the predominance requirement
for the same reasons previously articulated, namely: (1) the Rooker-Feldman doctrine applies to
each of the class members equally (see supra Part III.A.2); (2) Collins is a member of the class as
the class definition is concerned with garnishment proceedings, and Collins, along with all of the
putative class members, has had a garnishment proceeding levied against him (see id.); and (3) the
Court has resolved the statute of limitations defense in favor of Collins, removing any barrier to the
adequacy of his representation (see supra Part III.A.4).
With respect to Erin Capital’s assertion regarding the need for individual determinations,
Erin Capital correctly represents the FDCPA’s requirement that claims must be based on consumer
debts. “To recover under . . . the FDCPA . . . a plaintiff must make a threshold showing that the
money being collected qualifies as a ‘debt.’” Oppenheim v. I.C. Systems, Inc., 627 F.3d 833, 836–
37 (11th Cir. 2010). The FDCPA defines “debt” as:
any obligation or alleged obligation of a consumer to pay money arising out of a
transaction in which the money, property, insurance, or services which are the
subject of the transaction are primarily for personal, family, or household purposes,
whether or not such obligation has been reduced to judgment.
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Id. at 837 (emphasis in original) (quoting 15 U.S.C. § 1692a(5)). Thus, the FDCPA “appl[ies] only
to payment obligations of a (1) consumer arising out of a (2) transaction in which the money,
property, insurance, or services at issue are (3) primarily for personal, family, or household
purposes.” Id. (emphasis in original).
This necessary showing does not require individual determinations that would trump the
predominance of the legal issues commonly applicable to the putative class members.
As
previously established, the common issue of whether Erin Capital violated the FDCPA by failing to
register as a consumer collection agency, see LeBlanc, 601 F.3d at 1192, would have “a direct
impact on every class member’s effort to establish liability” and the class members’ “entitlement to
. . . monetary relief,” Klay, 382 F.3d at 1255 (citation and internal quotation marks omitted).
Moreover, after adjudication of the classwide issues, Collins would not have a remaining
need to introduce “a great deal of individualized proof or argue a number of individualized legal
points” to establish the claim. Id. (citation omitted). Erin Capital’s argument to the contrary has
previously been rejected in Hicks v. Client Services, Inc., No. 07-61822-CIV, 2008 WL 5479111, at
*6 (S.D. Fla. Dec. 11, 2008). In Hicks, the court recognized “[s]everal courts have ruled that a debt
collector’s lack of information regarding the types of debts it collected does not preclude class
certification.” Id. (citing cases). The court further held:
[T]he need to show that the transactions involved in a particular case are consumer
transactions is inherent in every FDCPA class action[]. If that need alone precluded
certification, there would be no class actions under the FDCPA. . . . [T]he
Congressional purpose in enacting the FDCPA would be thwarted if a large and
sophisticated debt collection company could avoid class action liability by mere fact
of inadequate record-keeping. As [other] cases have found, the problems posed by
the incompleteness of a debt collector’s information on the debts it attempts to
collect should not bar consumers from filing suit as a class. Although determining
which debts are consumer will require some effort, there are means for making such
determinations. Defendant’s customers should be able to provide information
regarding the debts, and proper drafting of the claim form may help exclude non-
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consumer debts.
Id. (alterations added) (citations, alterations, and internal quotation marks omitted).
Collins’s proposed class definition limits the class to persons against whom attempts to
collect debts incurred for personal, family, or household purposes were initiated by Erin Capital.
(See Am. Compl. ¶ 20). “[A]ny disputes regarding whether a particular class member’s debt is
consumer or commercial can be remedied through proper drafting of the claim form, and at the
damages phase of this case.” Macarz v. Transworld Sys., Inc., 193 F.R.D. 46, 57 (D. Conn. 2000).
Furthermore, “the mere existence of individualized defenses does not preclude a finding of
predominance.”
MacNamara v. City of New York, 275 F.R.D. 125, 139 (S.D.N.Y. 2011).
Accordingly, Erin Capital’s arguments do not defeat Collins’s predominance showing under Rule
23(b)(3).
2. Superiority
With regard to Rule 23(b)(3)’s superiority requirement, the Court must determine whether a
class action is superior to other available methods for the fair and efficient adjudication of the
claims. See Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1326 (11th Cir. 2008). The matters
pertinent to this determination include:
(A) the class members’ interests in individually controlling the prosecution or
defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun
by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in
the particular forum; and
(D) the likely difficulties in managing a class action.
FED. R. CIV. P. 23(b)(3).
Erin Capital argues “[b]ecause individual issues predominate, Collins’[s] proposed class is
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not superior to other methods of adjudication.” (Resp. 16). However, the Court has already found
the individual determination issue will not present an impediment to class certification. See supra
Part III.B.1. Erin Capital does not address any of the other factors, and the Court finds none of the
factors militate against certifying the class. Accordingly, the proposed class also satisfies the
requirements of Rule 23(b)(3).
IV. CONCLUSION
A district court is required to conduct a rigorous analysis of the Rule 23 prerequisites before
certifying a class. Having conducted that rigorous analysis, and for the foregoing reasons, it is
ORDERED AND ADJUDGED that the Motion [ECF No. 43] is GRANTED. The Court
hereby certifies a class pursuant to Rule 23(b)(3) consisting of (i) all persons (ii) whom were the
subject of collection activity from Erin Capital (iii) in an attempt to collect a debt incurred for
personal, family, or household purposes (iv) who incurred actual damages in the form of direct,
indirect, voluntary, or involuntary payment arising from or attributable to Erin Capital’s collection
efforts (v) during the one year period prior to the filing of the original writ of garnishment in this
action through the date of certification.
DONE AND ORDERED in Chambers at Miami, Florida, this 21st day of March, 2013.
_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc: counsel of record
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