SMITH v. GC SERVICES LIMITED PARTNERSHIP et al
ORDER granting Plaintiff's Second Amended 42 Motion to Certify Class. Signed by Judge Richard L. Young on 7/17/2017. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
FRANCINA SMITH, individually and on
behalf of all others similarly situated,
GC SERVICES LIMITED
PARTNERSHIP, a Delaware limited
OWNERS RESOURCE GROUP GC GP
BUYER, LLC, a Delaware limited liability
ENTRY ON PLAINTIFF’S SECOND AMENDED MOTION FOR CLASS
Plaintiff, Francina Smith, individually and on behalf of all others similarly
situated, claims the Defendants, GC Services Limited Partnership and Owner Resource
Group GC GP Buyer, LLC, sent her and the putative class a debt collection letter that
violated various provisions of the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq. Plaintiff now moves for class certification under Federal Rule of
Civil Procedure 23(a) and (b)(3). For the reasons that follow, the court GRANTS
Defendants sent Plaintiff a form collection letter, dated March 17, 2016, which
reads, in relevant part:
As of the date of this letter, our records show you owe a balance of $3,095.00
to Synchrony Bank. If you dispute this balance or the validity of this debt,
please let us know in writing. If you do not dispute this debt in writing within
30 days after you receive this letter, we will assume this debt is valid.
However, if you do dispute all or any portion of this debt in writing within
30 days of receiving this letter, we will obtain verification of the debt from
our client and send it to you. Or, if within 30 days of receiving this letter you
request in writing the name and address of the original creditor, we will
provide it to you in the event it differs from our client, Synchrony Bank.
(Filing No. 25-3, Collection Letter). The text of Section 1692g(a)(3) of the FDCPA,
however, simply says that a consumer need only “dispute the validity of the debt.”
Plaintiff’s Amended Complaint – Class Action, filed on October 18, 2016, alleges
that Defendants violated Section 1692g by wrongfully informing Plaintiff that disputes
must be in writing when, in fact, an oral dispute is valid. (Filing No. 25, Amended
Compl. ¶¶ 12-15). She alleges Defendants’ letter also violated Sections 1692e and 1692f
because the statement—that any dispute of the debt must be in writing—was false,
deceptive, and misleading, (id. ¶¶ 16-19), and unfair and unconscionable, (id. ¶¶ 20-23).
Plaintiff requests the court allow her to represent a class with the following
[A]ll persons similarly situated in the State of Indiana from whom
Defendants attempted to collect a delinquent consumer debt allegedly owed
for a Synchrony Bank/Sam’s Club account, via the same form collection
letter that Defendants sent to Plaintiff, from one year before the date of the
initial Complaint to the present.
(Filing No. 68, Plaintiff’s Statement as to Class Definition). Plaintiff asserts that all the
prerequisites for class certification pursuant to Rules 23(a) and (b)(3) are met.
Defendants argue otherwise.
Rule 23 Requirements
Class action suits are governed by Federal Rule of Civil Procedure 23. A party
seeking class certification bears the burden of establishing that certification is
appropriate. Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.
1993). The decision whether to grant or deny a motion for class certification lies within
the broad discretion of the trial court. Id.
Rule 23 prescribes a two-step analysis to determine whether class certification is
appropriate. First, a plaintiff must satisfy Rule 23(a)’s requirements of numerosity,
commonality, typicality, and adequacy of representation. Clark v. Experian Info. Sols.,
Inc., 256 Fed. Appx. 818, 821 (7th Cir. 2007); Williams v. Chartwell Fin. Serv., Ltd., 204
F.3d 748, 760 (7th Cir. 2000). The failure to meet any one of these requirements
precludes certification of a class. Retired Chicago Police Ass’n, 7 F.3d at 596. Second,
the action must also satisfy one of the conditions of Rule 23(b). Clark, 256 Fed. Appx. at
821; Williams, 204 F.3d at 760. Plaintiff seeks certification under Rule 23(b)(3), which
permits class certification if “questions of law or fact common to class members
predominate over any questions affecting only individual members” and class resolution
is “superior to other available methods for failure and efficiently adjudicating the
Defendants oppose Plaintiff’s motion on several grounds. First, Defendants argue
Plaintiff lacks Article III standing in light of the Supreme Court’s decision in Spokeo, Inc.
v. Robins, 136 S.Ct. 1540 (2016). Second, they argue Plaintiff has failed to propose an
ascertainable class in which she is a member. And lastly, they argue Plaintiff cannot
establish any of the factors listed in Rule 23(a) or (b). The court will address each of
these arguments in turn below.
Defendants first argue class certification should be denied and this entire action
dismissed because Plaintiff lacks Article III standing to bring this action. In the court’s
Entry denying Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint, the court
found that Plaintiff had alleged a concrete injury in fact sufficient for Article III standing
by alleging a violation of the FDCPA. The court sees no reason to revisit the issue.
An implicit requirement under Rule 23 is that the class definition “be definite
enough that the class can be ascertained.” Oshana v. Coca-Cola Co., 472 F.3d 506, 513
(7th Cir. 2006). This requires that the class definition be “defined clearly” and that
membership in the class “be defined by objective criteria.” Mullins v. Direct Digital,
LLC, 795 F.3d 654, 657 (7th Cir. 2015). Class definitions fail the ascertainability
requirement “when they [a]re too vague or subjective, or when class membership [i]s
defined in terms of success on the merits (so-called ‘fail-safe’ classes).” Id.
Defendants argue the class is not ascertainable because Plaintiff has no evidence
that any of the putative class members actually received, opened, and read the letter in
question or suffered an injury as a result of the letter. This argument is misguided, as the
ascertainability requirement focuses only on the adequacy of class definition itself; not on
whether it would be difficult to identify particular members of the class. Id. at 659. The
class definition is clear and objective as it is based on the same form debt collection letter
received by all putative class members. This class is ascertainable.
To meet the numerosity requirement, the class must be so large “that joinder of all
members is impracticable.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997)
(citing Fed. R. Civ. P. 23(a)). Although Rule 23 does not identify a threshold number to
establish numerosity, “joinder is considered impractical when a class numbers at least
forty members.” Walker v. Calusa Inv., LLC, 244 F.R.D. 502, 506 (S.D. Ind. 2007)
(citing Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989)).
In response to discovery requests, Defendants represented that the proposed class
consists of 118 persons. (Filing No. 43-2, Declaration of David J. Phillips ¶ 13). Given
that same form collection letter was sent to all 118 potential class members, the court
finds the numerosity requirement is satisfied.
To meet the commonality requirement, there must be “questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality requires the plaintiff to
“show that ‘the same conduct or practice by the same defendant gives rise to the same
kind of claims from all class members.’” McCaster v. Darden Restaurants, Inc., 845
F.3d 794, 800 (7th Cir. 2017) (quoting Wal-Mart Stores v. Dukes, 564 U.S. 338, 349-50
(2011)). What is critical is “standardized conduct towards members of the proposed
class.” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998).
Defendants argue the Plaintiff has not established that the proposed class members
have suffered the same injury; indeed, they continue, it is conceivable that some may not
have suffered any injury at all. Their argument is misplaced. Whether a form debt
collection letter violates the FDCPA is judged by an objective standard known as the
unsophisticated consumer standard. Lox v. CDS, Ltd., 689 F.3d 818, 822 (7th Cir. 2012).
As the Seventh Circuit noted in Bartlett v. Heibl, 128 F.3d 497, 499 (7th Cir. 1997), it is
not necessary that the consumer (who seeks only statutory damages) read the letter at
issue to find a violation of the FDCPA, nor is it necessary that the plaintiff actually have
been misled by the letter, see Lox, 689 F.3d at 826 (“[I]t is unimportant whether the
individual that actually received a violative letter was misled or deceived.”).
Here, Plaintiff’s FDCPA claims are based on the same form debt collection letter
sent to 118 members of the putative class. Whether it violated the FDCPA is a common
question of law. Therefore, the court finds Plaintiff satisfies the commonality
The next requirement concerns whether the claims of the class representative are
typical of the class as a whole. See Fed. R. Civ. P. 23(a)(3). A claim is typical of the
class if “it arises from the same event or practice or course of conduct that gives rise to
the claims of other class members and his or her claims are based on the same legal
theory.” Keele, 149 F.3d at 595 (citation and internal quotation omitted). Typicality and
commonality are closely related; typicality, however, focuses on the relationship between
the class representative and the class as a whole. De La Fuente v. Stokely-Van Camp,
Inc., 713 F.2d 225, 232 (7th Cir. 1983). Typicality is important because the class
representative, in pursuing his or her own claims, is also advancing the interests of the
class. In re General Motors Corp. Dex-Cool Prods. Liab. Litig., 241 F.R.D. 305, 312
(S.D. Ill. 2007).
Here, Plaintiff seeks statutory damages. Defendants argue Plaintiff’s claim is not
typical because some putative class members may have actual damages. The Seventh
Circuit noted in Keele, however, that the FDCPA “is blind when it comes to
distinguishing between plaintiffs who have suffered actual damages and those who have
not.” 149 F.3d at 593-94. Therefore, so long as the representative plaintiff’s and the
putative class members’ injuries arise out of the same violative conduct, the plaintiff may
represent the class. Id. at 594. Such is the case here. Plaintiff, therefore, satisfies the
Adequacy of Representation
The final requirement of Rule 23 is that “the representative parties will fairly and
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). To be an adequate
representative of a class, a plaintiff (1) must have a sufficient stake in the outcome to
ensure zealous advocacy; (2) must not have antagonistic or conflicting claims with other
class members; and (3) must have counsel who are experienced, qualified, and generally
able to conduct the litigation. Harris v. Circuit City Stores, Inc., No. 07 C 2512, 2008
WL 400862, at *7 (N.D. Ill. Feb. 7, 2008) (citing Retired Chicago Police Ass’n, 7 F.3d at
Defendants contend Plaintiff is not an adequate representative because she may
have antagonistic or conflicting claims with those class members who benefitted from the
subject letter (by writing Defendants to dispute their debt). Again, the court must view
alleged violations of the FDCPA “through the eyes of an ‘unsophisticated debtor.’” Long
v. Fenton & McGarney Law Firm P.S.C., No. 1:15-cv-1924-LJM-DML, 2016 U.S. Dist.
LEXIS 172507, at *7 (S.D. Ind. Dec. 14, 2016). It is thus immaterial whether the
consumer was misled by the letter. Lox, 689 F.3d at 826 (quoting Kistner v. Law Offices
of Michael P. Margelefsky, LLC, 518 F.3d 433, 438 (6th Cir. 2008) (“The leastsophisticated-consumer test is objective and is designed ‘to ensure that the FDCPA
protects all consumers, the gullible as well as the shrewd.’”)). In the absence of any
further objection, the court finds Plaintiff, who was sent the same form collection letter as
the individuals she seeks to represent, is an adequate representative.
Having satisfied the class certification requirements under Rule 23(a), the court
now turns to whether Plaintiff’s proposed class satisfies the requirements of Rule
23(b)(3). It requires that: (1) questions of law or fact common to the members of the
class predominate over any questions affecting only individual members; and (2) a class
is superior to other available methods for the fair and efficient adjudication of the
controversy. Fed. R. Civ. P. 23(b)(3).
Defendants contend individual questions regarding the proposed class members’
standing to bring suit overwhelm any questions common to the class, thus defeating class
certification. For the reasons previously stated, the court rejects this argument. Because
the key issue in this case—whether the subject letter violates the FDCPA—is identical as
to each putative plaintiff, the court finds the requirements of Rule 23(b)(3) are satisfied.
The court finds the proposed class meets the requirements of Federal Rule of Civil
Procedure 23(a) and 23(b)(3). Therefore, Plaintiff’s Second Amended Motion for Class
Certification (Filing No. 42) is GRANTED.
SO ORDERED this 17th day of July 2017.
Distributed Electronically to Registered Counsel of Record.
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