Kinder v. Central Bank And Trust Company
Filing
20
MEMORANDUM OPINION & ORDER: (1) IT IS ORDERED that Pla's Motion for Class Certification 14 is DENIED; (2) Pla's Motion for discovery on Class Certification Issues 18 is DENIED. Signed by Judge Joseph M. Hood on 10/24/2011.(GLD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
NANCY KINDER,
)
)
Plaintiff,
)
)
v.
)
)
CENTRAL BANK AND TRUST COMPANY, )
)
Defendant.
)
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**
**
Civil Action No. 11-234-JMH
MEMORANDUM OPINION & ORDER
**
**
This matter is before the Court upon Plaintiff’s Motion for
Class Certification [DE 14].
Defendant has filed a Response [DE
16], stating its opposition to the motion, and Plaintiff has filed
a Reply [DE 17], as well as a Motion for Discovery on Class
Certification Issues [DE 18]. The Court is adequately advised with
respect to both Motions and considers them ripe for disposition.
I.
BACKGROUND
As alleged in her Complaint [DE 1], Plaintiff Nancy Kinder
conducted transactions at two different ATM machines operated by
Defendant Central Bank and Trust Company (“Central Bank”) on May
10, 2011.
She did not, at that time, maintain any accounts with
Defendant.
The ATMs were located at 101 Brenwood Street, Berea,
Kentucky, and 350 West Main Street, Richmond, Kentucky.
She avers
that she was charged a fee of $2.50 in connection with each of
these transactions 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” these ATMs
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
must
be
posted
“on
or
at”
the
machine
“in
a
prominent
and
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
payment
of
a
reasonable
1693m(a)(1)-(2)(A)
attorney’s
(providing
for
fee.
either
See
15
U.S.C.
§
actual
or
statutory
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
action).
2
Plaintiff now asks that the Court certify a class pursuant to
Fed.
R.
Civ.
P.
23(b)(3)
and
permit
her
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
machine.
[DE 1, Compl. ¶ 20.] She argues that she should be permitted to
represent the interests of all consumers who used thirty-four ATMs
operated by Defendant with respect to transaction fees charged
where the required notice was not posted.
She seeks, as well, an
opportunity to conduct discovery on class certification issues.
For the reasons which follow, these motions shall be denied.
II.
DISCUSSION
A.
Plaintiff’s Motion for Class Certification
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
fairly
and
adequately
3
parties
protect
will
the
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.
P. 23(b).
Kinder requests class certification in this instance
under Fed. R. Civ. P. 23(b)(3) which provides for certification
where:
. . . 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 making this finding, the Court considers:
(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).
This Court will not consider the merits of Kinder’s claims in
assessing her motion for class certification, but Kinder bears the
burden
of
establishing
certification.
each
prerequisite
in
order
to
obtain
Senter v. Gen. Motors Corp. 532 F.2d 511, 522 (6th
4
Cir. 1976).
Having considered Kinder’s motion carefully, it will
be denied because the class proposed by Plaintiff fails to meet the
commonality and typicality requirements of Fed. R. Civ. P. 23(a).1
Plaintiff proposes a class made up of every individual who has
used one of thirty-four ATMs allegedly operated by Central Bank
during the time period from July 23, 2010, to July 22, 2011, and
who was charged a fee.
Plaintiff has made, however, no averment
that she visited any of the ATMs, other than the two described in
her Complaint, or that any ATM other than the two identified in her
Complaint lacked the posted notice on the date that she used them.
Thus, she does not aver a common set of facts with respect to the
absence of notice or the assessment of transaction fees at the 32
ATMs belonging to defendant because Plaintiff never used those 32
ATMs during the period identified.
Supermarkets,
Inc.,
232
F.R.D.
See, e.g., Polo v. Goodings
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
1
Having concluded that Kinder does not meet the
requirements of commonality and typicality, the Court need not and
will not reach the issues of numerosity or her adequacy to
represent and protect the interests of the proposed class.
5
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 Central Bank “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 Pipe Co., 784 F.2d
1546, 1557 (11th Cir. 1986); Murray v. Auslander, 244 F.3d 807, 812
(11th Cir. 2011)).
To
reach
the
conclusion
that
Plaintiff’s
claim
has
the
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 the other 32 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.
This Court
declines to do so.
For the same reason, the Court is not persuaded that Plaintiff
6
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
Sprague,
the
Court
explained
that
“[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
attribute
a
collective
nature
to
the
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
Sprague
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 two ATMs visited, then she could also prove that
anyone else who used those two ATMs within the same period was
injured if those persons were also charged a transaction fee.
7
There would be a common element of fact and law as it relates to
the use of those two particular ATMs.
Her claim would not,
however, be typical of anyone using the other 32 ATMs reportedly
operated by Defendant.
Plaintiff has failed to bear the burden of proof on the issue
of commonality and typicality.
certify the proposed class.
Accordingly, the Court declines to
Much as in Polo, the question of
whether Defendant complied with the notice requirements of EFTA is
not susceptible to class-wide proof as the class is proposed.
If
Defendant failed to comply with the EFTA’s notice requirement at
the
ATMs
visited
by
Plaintiff
on
any
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 ATMs visited by Plaintiff on or
about the date that she visited them – 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 proposed. The Court
declines to certify the class in the absence of the required
commonality and typicality.
8
B.
Plaintiff’s Conditional Motion for Discovery on Class
Certification Issues
Plaintiff also asks this Court to permit discovery on class
certification issues prior to ruling on the motion to certify the
class – if it is inclined to deny her motion to certify the class.
Discovery will not be necessary as Plaintiff’s Complaint provides
the Court with sufficient information upon which to base its
decision with respect to certification.
While Plaintiff may be
able, as she suggests, to demonstrate upon discovery that other
ATMs operated by Defendant lacked notice of fees to be charged to
consumers, it will not change the fact that she does not aver that
she
ever
visited
those
ATMs
or
was
charged
a
fee
for
any
transaction at those other ATMs.
No discovery is, therefore,
called
evaluates
for
before
certification.
Cf.
this
Court
her
motion
for
Vinole v. Countrywide Home Loans, Inc., 571
F.3d 935, 942 (9th Cir. 2009) (explaining that “often the pleadings
alone will not resolve the question of class 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 proper.”); In re Am. Med. Sys.,
Inc.,
75
F.3d
1069,
1086
(6th
9
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
named plaintiffs).
III. CONCLUSION
Accordingly, for all of the reasons stated above, IT IS
ORDERED:
(1)
that Plaintiff’s Motion for Class Certification [DE 14]
is DENIED;
(2)
that
Plaintiff’s
Motion
for
Certification Issues [DE 18] is DENIED.
This the 24th day of October, 2011.
10
Discovery
on
Class
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