Martin v. Midland Funding, LLC

Filing 31

WRITTEN ORDER signed by the Honorable Charles P. Kocoras on 8/31/2011.Mailed notice(sct, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NICHOLAS MARTIN, individually and
on behalf of a class,
Plaintiff,
vs.
MIDLAND FUNDING LLC,
Defendant.

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11 C 3104

ORDER
CHARLES P. KOCORAS, District Judge:
This case comes before the Court on Defendant Midland Funding, LLC’s
(“Midland”) motion to reassign and consolidate a later-filed matter pursuant to Northern
District of Illinois Local Rule 40.4(c). For the reasons stated below, the motion is
denied.
Midland asks the Court to reassign and consolidate Scardina v. Midland Credit
Management, No. 11-cv-3149 (N.D. Ill.) (Lindberg, J.) (“Scardina”), with the instant
matter before this Court, Martin v. Midland Funding, LLC, No. 11-cv-3104 (N.D. Ill.)
(Kocoras, J.) (“Martin”). Plaintiff Dave Scardina (“Scardina”) objects. To resolve the
pending motion, a summary of the two cases is necessary.
On May 10, 2011, Plaintiff Nicholas Martin (“Martin”) filed a purported class
action against Midland.

The amended complaint asserts class claims under the

Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), and the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 (“FDCPA”). Martin seeks to hold Midland
liable for calling class members’ cellular telephones using an automatic telephone
dialing system or prerecorded or artificial voice.

Martin purports to represent

individuals who resided in Illinois between January 1, 2008, and November 24, 2008,
received calls during that same time period, and had an alleged debt obtained by
Midland during that same time period. The Martin action is currently pending before
this Court.
One day later, on May 11, 2011, Scardina filed a purported class action against
Midland, as well as Midland Credit Management, Inc. (“MCM”) and Encore Capital
Group, Inc. (“Encore”). Scardina asserts a class claim under the TCPA and seeks to
hold all three defendants liable. Scardina seeks to hold MCM liable for calling class
members’ cellular telephones using an automatic telephone dialing service or an
artificial or prerecorded voice without their prior express consent. Scardina also seeks
to hold Midland, the owner of the debt, vicariously liable. Finally, Scardina seeks to
hold Midland’s parent, Encore, liable for raising the capital for the predictive dialing
equipment and directing MCM to use the equipment. Scardina purports to represent
individuals with Illinois cellular telephone numbers who received automated calls

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between May 11, 2007, and May 31, 2011. The Scardina action is currently pending
before Judge Lindberg.
Any party may file a motion for reassignment based on the relatedness of two or
more cases. N.D. Ill. L.R. 40.4(c). The party moving for reassignment must show that
the standards in Local Rule 40.4(a) and 40.4(b) are satisfied. According to Local Rule
40.4(a), two or more civil cases may be related if one or more of the following
conditions are met: (1) the cases involve the same property; (2) the cases involve some
of the same issues of fact or law; (3) the cases grow out of the same transaction or
occurrence; or (4) in class action suits, the classes are the same. Pursuant to Local Rule
40.4(b), the court may reassign a case related to an earlier-numbered case if: (1) both
cases are pending in this Court; (2) the handling of both cases by the same judge is
likely to result in a substantial saving of judicial time and effort; (3) the earlier case has
not progressed to a point where designating a later-filed case as related would likely
substantially delay the proceedings in the earlier case; and (4) the cases are susceptible
of disposition in a single proceeding.
Midland argues that the cases are related under Local Rule 40.4(a) because the
cases involve some of the same issues of fact or law and the classes are the same.
Because Martin and Scardina both assert class claims under the TCPA against Midland,
some common issues of fact and law exist. However, aside from a single cause of

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action against the same defendant, the cases are very different. First, Scardina, unlike
Martin, asserts a TCPA claim against two additional defendants, MCM and Encore, and
has a different theory regarding each defendant’s liability. Martin did not sue MCM,
the licensed debt collector, or Encore, the parent allegedly directing MCM’s use of
predictive dialing equipment. Thus, some discovery relating to MCM’s and Encore’s
involvement in Scardina will not be relevant in Martin.
Second, unlike Scardina, Martin asserts an additional class claim under the
FDCPA. The FDCPA claim involves factual issues wholly unrelated to the TCPA
claim. In particular, Martin’s FDCPA claim deals with false representations Midland
allegedly made to consumer reporting agencies regarding the character, amount, or legal
status of Martin’s purported debt. Martin’s FDCPA claim thus varies the scope of
discovery in Martin.
Finally, the class definitions substantially differ. The class in Martin includes
individuals who: (1) resided in Illinois between January 1, 2008, and November 24,
2008; (2) received calls during that same time period; and (3) had an alleged debt
obtained by Midland during that same time period. Thus, class discovery in Martin will
focus on the purported class members’ residences, the time of the calls, and the time
Midland obtained the alleged debts. Different from Martin, the class in Scardina
includes individuals with Illinois cellular telephone numbers who received automated
calls between May 11, 2007, and May 31, 2011. Thus, class discovery in Scardina will
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focus on the purported class members’ cellular telephone numbers, not their residences,
and whether they received calls between May 11, 2007, and May 31, 2011, a much
broader time frame. Further, inclusion in the Scardina class, unlike the Martin class,
does not depend on when Midland obtained the alleged debt. For these reasons, Martin
and Scardina are not sufficiently related for reassignment under Local Rule 40.4(a).
Even if the cases were sufficiently related under Local Rule 40.4(a), Midland has
not shown that the cases satisfy the standard in Local Rule 40.4(b). For the reasons
stated above, the handling of both cases by the same judge will not likely result in a
substantial saving of judicial time and effort and the cases are not susceptible to
disposition in a single proceeding. Moreover, reassignment would likely delay the
proceedings in Scardina, since the deadline for the close of discovery is approximately
one month away, September 28, 2011.
For the foregoing reasons, the Court denies Midland’s motion to reassign and
consolidate Scardina with Martin.

Charles P. Kocoras
United States District Judge
Dated: August 31, 2011

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