Anguiano v. LVNV Funding LLC et al
Filing
208
OPINION AND ORDER GRANTING 205 MOTION Unopposed Motion to Add Plaintiff As Additional Class Representative filed by Mary Mitchell. Signed by Chief Judge Theresa L Springmann on 9/11/19. (ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MARY MITCHELL, on behalf of herself and
all other class members,
Plaintiff,
v.
CAUSE NO.: 2:12-CV-523-TLS
LVNV FUNDING, LLC; RESURGENT
CAPITAL SERVICES, L.P.; and ALEGIS
GROUP, LLC,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Unopposed Motion to Add Plaintiff as
Additional Class Representative [ECF No. 205], filed on July 31, 2019. On July 11, 2019, Plaintiff
Mary Mitchell filed a Motion to Excuse Plaintiff’s Appearance at Fairness Hearing [ECF No. 196],
requesting that this Court excuse her appearance as Class Representative at the upcoming Fairness
Hearing due to her critical health condition. The Court subsequently granted the Plaintiff’s Motion,
and the Fairness Hearing was held as scheduled on July 25, 2019, for the purpose of discussing
the Settlement Agreement. Sometime prior to the Fairness Hearing, Mitchell had succumbed to
her illness. The Court, Plaintiff’s counsel, and Defendants’ counsel were not aware of Mitchell’s
passing at the time of the Fairness Hearing.
The Order granting Plaintiff’s Motion to Certify Class, and thus establishing Mitchell as
the Class Representative, was entered on November 12, 2015 [ECF No. 88]. In light of Mitchell’s
passing, Plaintiff’s counsel has requested that the Court name Kimberly Moore as the new class
representative. Plaintiff’s counsel has informed the Court that Moore has retained class counsel
and, if the Court were to appoint her, is willing to serve as the class representative.
A district court may alter or amend an order that grants or denies class certification at any
time prior to the entry of a final judgment. Fed. R. Civ. P. 23(c)(1)(C). The replacement of a class
representative is not a novel or unusual occurrence in the realm of class action litigation; indeed,
“[s]ubstition of unnamed class members for named plaintiffs who fall out of the case because of
settlement or other reasons is a common and normally an unexceptionable (“routine”) feature of
class action litigation” in federal court. Phillips v. Ford Motor Co., 435 F.3d 785, 787 (7th Cir.
2006). In the event of the death of the class representative, a class action can be kept alive by the
appointment of a new class representative. Robinson v. Sheriff of Cook County, 167 F.3d 1155,
1158 (7th Cir. 1999) (citing Kremens v. Bartley, 431 U.S. 119, 134–35 (1977)).
Although the Court can substitute Moore as the new class representative, it will only do so
if the Court believes she “will fairly and adequately protect the interests of the class.” Fed. R. Civ.
P. 23(a)(4). “In order to be an adequate representative, the named plaintiff must be ‘part of the
class and possess the same interest and suffer the same injury as the class members.’” Conrad v.
Boiron, Inc., 869 F.3d 536, 539 (7th Cir. 2017) (quoting Amchem Prod., Inc. v. Windsor, 521 U.S.
591, 625–26 (1997)).
There are several factors that lead the Court to believe that Moore would be an adequate
representative for the existing class. First and foremost, Moore is a member of the class and has
suffered the same injury as her fellow class members. Because she has suffered the same injury
and is similarly situated, the claims Moore has asserted in this proceeding are identical to, and do
not conflict with, the claims of the other class members. Further, the Court has no reason to believe
that Moore’s substitution will impact the interests of the class, as the Court has been assured that
the change of the class representative will not result in the alteration of the relief sought through
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this claim or the terms of the Settlement Agreement that has been presented to this Court. Finally,
Defendant’s counsel has expressed no objection to adding Moore as the new class representative.
There being ample evidence that Moore will fairly and adequately protect the interests of
the existing class, the requirements outlined under Federal Rule of Civil Procedure Rule 23(a)(4)
are satisfied, thus making Moore an adequate candidate for class representative and an appropriate
substitute for Class Representative Mary Mitchell in light of her unexpected passing.
For the reasons set forth above, the Court hereby GRANTS the Unopposed Motion to Add
Plaintiff as Additional Class Representative [ECF No. 205].
SO ORDERED on September 11, 2019.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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