Kinder v. First Southern National Bank
MEMORANDUM OPINION & ORDER: (1) Court's 12 Order to show cause DISCHARGED; (2) Plt's 14 MOTION to Certify Class DENIED. Signed by Judge Joseph M. Hood on 11/29/2011.(STB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
FIRST SOUTHERN NATIONAL BANK,
Civil Action No. 11-231-JMH
MEMORANDUM OPINION & ORDER
On October 31, 2011, this Court entered a Memorandum Opinion
and Order [DE 12] in which it required Plaintiff to show cause why
her class action allegations shall not be dismissed for the reasons
Plaintiff has filed a timely Response [DE 13], as
well as a Motion for Class Certification [DE 14].
Southern National Bank has filed a Response [DE 15] in opposition
to Plaintiff’s Motion for Class Certification.
The Court being
adequately advised, these matters are ripe for consideration and
Order to Show Cause to Be Discharged
In Plaintiff’s Response to the Court’s Order to show cause,
she explains that, if discovery in this case leads Plaintiff to
believe that there is a basis for the Court to certify a class
limited to the ATMs used by Plaintiff, she may seek certification
of such a class.
Rather than dismiss the potential for class
contemporaneously filed Motion for Class Certification, which seeks
certification of the broad class set forth in the Complaint.
Court agrees that this is the better way to proceed and will
discharge its Order requiring her to show cause.
In so doing,
however, the Court is not prejudging the merits of any motion for
certification of a class.
Rather, the Court considers only the
merits of the Motion for Class Certification set before it by
Plaintiff, as articulated below.
Plaintiff’s Motion for Class Certification
As alleged in her Complaint [DE 1], Plaintiff Nancy Kinder
conducted transactions at a single automated teller machine (“ATM”)
Southern”) at 894 Richmond Plaza, Richmond, Kentucky, on May 10,
She did not, at that time, maintain any accounts with
She avers that she was charged a fee of $3.00 in
connection that transaction but that no notice of the fee to be
imposed for using the ATM was posted “on or at” either ATM.
She argues that the absence of a notice “on or at” this ATM
was a violation of the Electronic Funds Transfer Act (“EFTA”), 15
U.S.C. § 1693, et seq., which requires any ATM operator who imposes
fees on consumers in connection with electronic fund transfers to
provide notice of the fact that the fee is being imposed and the
amount of the fee.
15 U.S.C. § 1693b(d)(3)(A).
Section 1693b(d)(3)(B)(ii) and (ii) provide that the notice
conspicuous location . . . at which the electronic fund transfer is
initiated by the consumer” and “on the screen of the automated
teller machine, or on a papers notice issued from such a machine,
after the transaction is initiated and before the consumer is
irrevocably committed to completing the transaction.”
C.F.R. § 205.16(c)(1) and (2).
See also 12
If notice is not provided to the
consumer as required in 15 U.S.C. § 1693b(d)(3)(A) and described in
§ 1693b(D)(3)(B), “[n]o fee may be imposed . . . in connection with
any electronic fund transfer initiated by a consumer.” Pursuant to
15 U.S.C. § 1693m, she requests statutory damages, costs, and the
damages in amounts between $100 and $1,000 available for individual
violations); 15 U.S.C. § 1693m(a)(2)(B) (providing for statutory
damages of up to $1,000 per class member with a cap of the lesser
of $500,000 or one percent of the net worth of defendant in a class
In her Complaint, Plaintiff purports to bring a class action
on behalf of “herself and all other similarly situated” persons
pursuant to Fed. R. Civ. P. 23(b)(3).
By virtue of her Motion for
Class Certification, she seeks to proceed as the representative of
a class, as follows:
All persons who: 1) were charged a “terminal
owner fee” at an ATM operated by Defendant
when such persons made an electronic fund
transfer and/or balance inquiry where, 2) no
notice indicating that such fee was to be
charged was posted on the outside of the ATM
[Compl. ¶ 20.] Effectively, she wishes to represent the interests
of all consumers who used any ATM operated by Defendant at any time
with respect to any transaction fees charged where the required
notice was not posted.
Fed. R. Civ. P. 23(a) provides 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
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
interests of the class.
If the threshold criteria of Rule 23(a) are met, the plaintiff
must then show that an action may be maintained under Fed. R. Civ.
Kinder requests class certification in this instance
under Fed. R. Civ. P. 23(b)(3) which provides for certification
. . . the court finds that the questions of
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 making this finding, the Court considers:
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
Fed. R. Civ. P. 23(b)(3).
This Court will not consider the merits of Kinder’s claims in
determining whether class certification is appropriate, but Kinder
bears the burden of establishing each prerequisite in order to
Senter v. Gen. Motors Corp. 532 F.2d 511,
522 (6th Cir. 1976). Further, the Court is mindful that it “should
defer decision on certification pending discovery if the existing
record is inadequate for resolving the relevant issues.” In re Am.
Med. Sys., Inc., 75 F.3d 1069, 1086 (6th Cir. 1996) (holding that
certification of class was improper without further inquiry into
whether commonality and typicality existed with respect to claims
of injury by a number of different of penile implants as averred by
See also Vinole v. Countrywide Home Loans,
Inc., 571 F.3d 935, 942 (9th Cir. 2009) (explaining that "often the
certification and... some discovery will be warranted"); Mills v.
Foremost Ins. Co., 511 F.3d 1300, 1309 (11th Cir. 2008) ("In some
instances the propriety vel non of class certification can be
gleaned from the face of the pleadings," while, at other times,
discovery is necessary because "the parties' pleadings alone are .
. . not sufficient to establish whether class certification is
provides the Court with sufficient information upon which to base
its decision with respect to certification. No amount of discovery
will change the fact that Plaintiff does not aver that she ever
visited any other ATM operated by Defendant other than the one
located at 894 Richmond Plaza, in Richmond, Kentucky, or that she
was charged a fee for any transaction at other ATM operated by
No discovery is, therefore, called for before this
Court evaluates the issue of class certification.
Plaintiff proposes a class made up of every individual who has
used an ATM allegedly operated by First Southern at any time, and
who was charged a fee when no notice of such a fee was posted on
the outside of the ATM.
Plaintiff has made, however, no averment
that she visited any ATMs owned by First Southern, other than the
one described in her Complaint, or that any ATM other than the one
identified in her Complaint lacked the posted notice on the date
that she used it.
Thus, she does not aver a common set of facts
transaction fees at any other ATM operated by Defendant because
Plaintiff never used any other ATM operated by First Southern.
See, e.g., Polo v. Goodings Supermarkets, Inc., 232 F.R.D. 399, 406
(M.D. Fla. 2004) (concluding that certification of class was
inappropriate because fact issues were not common to all proposed
members where not all proposed members used same ATM as plaintiff
within same time period). Cf. Hart v. Guardian Credit Union,
2:10-CV-855, 2011 WL 2434201 (M.D. Ala. June 16, 2011) (certifying
class of all persons charged fee for use of two ATMs where
plaintiff alleged that he was wrongly charged a fee); Flores v.
Diamond Bank, No. 07-C-6403, 2008 WL 4861511 (N.D. Ill. Nov. 7,
2008) (certifying class of all persons charged fee for use of one
of defendant’s ATMs); Burns v. First Am. Bank, No. 04-C-7682, 2006
WL 3754820 (N.D. Ill. Dec. 19, 2006) (certifying class defined as
all persons using two of defendant’s ATMs); Riviello v. Tobyhanna
Army Depot Fed. Credit Union, 3:11-cv-59, 2011 WL 3439215 (M.D. Pa.
Aug. 5, 2011) (denying motion to dismiss class allegations where
class was defined as those persons using one of defendant’s ATMs).
Nor has she alleged that First Southern “systematically failed to
post proper disclosures at its various machines or had a policy of
doing so,” which might support a finding of commonality. Polo, 232
F.R.D. at 406 (M.D. Fla. 2004) (citing Cox v. American Cast Iron
Auslander, 244 F.3d 807, 812 (11th Cir. 2011)).
requisite commonality with those potential claims of other members
of the proposed class, this Court would have to assume what she
never purports to have experienced and what is not averred in the
complaint – that any other ATMs were operated by Defendant without
the required notice posted on or at the machine and that fees were
charged to customers who visited those ATMs.
Assuming that First
Southern operates ATMs other than the one identified in her
Complaint, this Court declines to do so.
For the same reason, the Court is not persuaded that Plaintiff
can demonstrate that her claim is typical of the experience of the
large swathe of customers for which she wishes to serve as a
representative. As taught in Beattie v. CenturyTel, Inc., 511 F.3d
554 (6th Cir. 2007):
”A claim is typical if “it arises from the
same event or practice or course of conduct
that gives rise to the claims of other class
members, and if his or her claims are based on
the same legal theory.” In re Am. Med. Sys.,
Inc., 75 F.3d 1069, 1082 (6th Cir. 1996). In
“[t]ypicality determines whether a sufficient
relationship exists between the injury to the
named plaintiff and the conduct affecting the
class, so that the court may properly
challenged conduct.” [Sprague v. Gen. Motors
Corp.,] 133 F.3d [388,] 399 [(6th Cir 1998)
(en banc)] (citing In re Am. Med. Sys., Inc.,
75 F.3d at 1082). On the other hand, the
Court explained, the typicality
requirement is not satisfied when a plaintiff
can prove his own claim but not “necessarily
have proved anybody's else's claim.” Id.
Lastly, for the district court to conclude
that the typicality requirement is satisfied,
“a representative's claim need not always
involve the same facts or law, provided there
is a common element of fact or law.” Senter v.
Gen. Motors Corp., 532 F.2d 511, 525 n. 31
(6th Cir. 1976).
511 F.3d 554, 561 (6th Cir. 2007).
Here, assuming that Plaintiff can prove that she was injured
because she was charged a transaction fee in the absence of posted
notice at the ATM visited, then she could also prove that anyone
else who used that ATM within the same period was injured if those
persons were also charged a transaction fee.
There would be a
common element of fact and law as it relates to the use of that
particular ATM. Her claim would not, however, be typical of anyone
using any other ATM operated by Defendant.
Much as in Polo, the question of whether Defendant complied
with the notice requirements of EFTA is not susceptible to classwide proof as the class is proposed. If Defendant failed to comply
with the EFTA’s notice requirement at the ATM visited by Plaintiff
on the given date, it would demonstrate nothing with respect to
whether Defendant met the notice requirement at any other ATM that
it operated on any particular date.
Similarly, a demonstration
that Defendant failed to comply with EFTA’s notice requirement at
another ATM on any given date – other than at the ATM visited by
Plaintiff on or about the date that she visited it – would not
dispose of the same issue as to Plaintiff.
Answering the common
question for Kinder would not determine the issue with respect to
other putative class members if the Court certified the class
This Court is of the opinion that Plaintiff cannot
demonstrate commonality and typicality on the facts averred, and
the Court shall deny her Motion for Class Certification on these
For all of the reasons set forth above, the Court concludes
that its order requiring Plaintiff to show cause why her class
claims should not be dismissed shall be discharged and her Motion
for Class Certification shall be denied.
Accordingly, IT IS ORDERED:
that the Court’s Order [DE 12] to show cause, dated
October 28, 2011, is DISCHARGED;
that Plaintiff’s Motion for Class Certification [DE 14]
This the 29th day of November, 2011.
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