Reyes v. Julia Place Condominiums Homeowners Association, Inc. et al

Filing 804

ORDER & REASONS. It is ORDERED that the class of Plaintiffs asserting claims under the Fair Debt Collection Practice Act in this matter is DECERTIFIED. It is FURTHER ORDERED that the class of Plaintiffs asserting claims under Louisiana usury law is DECERTIFIED. Signed by Judge Carl Barbier.(Reference: 12-2043)(gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

NICOLE REYES, ET AL.

CIVIL ACTION

VERSUS

NO: 12-2043

JULIA PLACE CONDOMINIUM
HOMEOWNERS ASSOCIATION,
INC., ET AL.

SECTION: “J”(3)

ORDER & REASONS
On

October

12,

2016,

Magistrate

Judge

Daniel

Knowles

conducted a settlement conference and reported that a partial
settlement was reached. (R. Doc. 785.) The settlement resolved
Plaintiffs’ claims against all Defendants except for Steeg Law and
Julia

Place

Condominiums

Homeowners

Association,

Inc.

(“Julia

Place”). Id. After dismissing several motions as moot, R. Doc.
793, the Court ordered Julia Place, and any other interested party,
to brief whether “there is a proposed class that satisfies Rule
23(a)-(b) of the Federal Rules of Civil Procedure.” (R. Doc. 793
at 2.) Plaintiffs, 1 Steeg Law, 2 and Julia Place 3 responded. Steeg
Law then filed a reply to Plaintiffs’ response. (R. Doc. 797.)
Plaintiffs filed a reply that addressed arguments raised in Julia
Place’s and Steeg Law’s response. (R. Doc. 798.) Now, this Court
must determine whether the proposed Fair Debt Collection Practices
Act class (“FDCPA class”) and the Louisiana usury law class (“usury

1
2
3

R. Doc. 794.
R. Doc. 795.
R. Doc. 796.

class”) still satisfy Rule 23’s requirements. The Court shall
address these issues in light of the parties’ responses.
FACTS AND PROCEDURAL BACKGROUND
On December 18, 2014, this Court certified an FDCPA monetary
relief class, but declined to certify an FDCPA injunctive relief
class. (R. Doc. 464 at 6, 10.) In certifying the FDCPA monetary
relief class, this Court noted that the class consisted of twentyone to fifty class members, including seven corporate entities,
and noted that Plaintiffs may be able to identify additional class
members. See id. at 7-9. The Court determined that Plaintiffs
satisfied Rule 23’s numerosity requirement. See id. at 9. On July
29, 2015, this Court held that certain corporate entities proposed
by Plaintiff as FDCPA claimants were not “natural persons,” and
therefore were unable to recover under the FDCPA. (R. Doc. 510 at
7.) The Court then excluded five corporate entities that Plaintiff
previously included in the FDCPA class. Id. In light of the
developments of this case, Steeg Law now contends that there are
fewer than twenty-five members of the FDCPA class. (R. Doc. 795.)
In response, Plaintiffs merely argue that “[t]he recent settlement
did not resolve any component of the FDCPA class. Therefore, the
FDCPA class should not be affected by the settlement.” (R. Doc.
794 at 1.)
On August 20, 2015, this Court certified a narrow usury class,
which was divided into two subclasses. (R. Doc. 529.) Specifically,
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the Court certified “a class of past and present condominium owners
who have paid allegedly usurious late fees. The class shall be
divided into two subclasses, one seeking monetary relief and
another seeking injunctive relief for purported violations of the
usury law.” Id. at 16. On October 2, 2016, this Court narrowed the
injunctive relief class to “members currently owning condominium
units at Julia Place.” (R. Doc. 783 at 13.) In light of the
settlement in this case, Julia Place argues, inter alia, that Rule
23’s requirements are no longer met with respect to the usury
class. (R. Doc. 796.) As to Rule 23(a)’s numerosity requirement,
Julia Place argues that Plaintiffs have produced evidence that
there are only eighteen 4 members of the usury class, and no
remaining members entitled to injunctive relief. Id. at 12, 14.
Plaintiffs concede that only eighteen class members remain as to
the usury class; however, Plaintiffs argue that the Court should
maintain the proposed usury class because the members stand to
recover small amounts if they prevail, and several members are
from different states. (R. Doc. 794 at 2.) The Court shall address
whether, in light of the recent settlement, this action should be
maintained as an FDCPA and usury class action.

4

Plaintiffs argue there are eighteen usury class members, while Julia Place
argues there are only seventeen members. The evidence presented by Plaintiffs
demonstrates a list of eighteen individuals, including the named Plaintiff,
Nicole Reyes. See (R. Doc. 794-1.) Nevertheless, Plaintiffs have failed to
demonstrate that joinder is impracticable.

3

DISCUSSION
“[A] trial court overseeing a class action retains the ability
to monitor the appropriateness of class certification throughout
the proceedings and to modify or decertify a class at any time
before final judgment.” In re Integra Realty Res., Inc., 354 F.3d
1246, 1261 (10th Cir. 2004); see also McNamara v. Felderhof, 410
F.3d 277, 281 n.8 (5th Cir. 2005) (quoting In re Integra in support
of

the

position

that

a

trial

court

may

alter

its

class

certification ruling). “Four prerequisites to class certification
must be met by all classes: numerosity, commonality, typicality,
and adequacy of representation.” Izzio v. Century Golf Partners
Mgmt., L.P., No. 16-10446, 2016 WL 6775944, at *1 (5th Cir. Nov.
15, 2016) (internal quotations and citations omitted). “An order
that grants or denies class certification may be altered or amended
before final judgment.” Fed. R. Civ. P. 23(c)(1)(C); McNamara, 410
F.3d at

281

n.8.

Under

Rule

23(a)(1),

certification

is

only

appropriate where “the class is so numerous that joinder of all
members is impracticable.” Fed. R. Civ. P. 23(a)(1). “[A] number
of facts other than the actual or estimated number of purported
class members may be relevant to the ‘numerosity’ question; these
include, for example, the geographical dispersion of the class,
the ease with which class members may be identified, the nature of
the action, and the size of each plaintiff’s claim.” Ibe v. Jones,
836 F.3d 516, 528 (5th Cir. 2016) (quoting Zeidman v. J. Ray
4

McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981)). In
Mullen v. Treasure Chest Casino, LLC, the Fifth Circuit noted that
between 100 and 150 members is within the range that generally
satisfies the numerosity requirement, and “any class consisting of
more than forty members should raise a presumption that joinder is
impracticable.” 186 F.3d 620, 624 (5th Cir. 1999); see also In re
TWL Corp., 712 F.3d 886, 895 (5th Cir. 2013) (noting that a
putative class of only 130 members might present a close question
as to numerosity, depending on the facts of the case).
Plaintiffs

have

produced

evidence

that

there

are

only

eighteen members in the usury class. (R. Doc. 794-1.) Eighteen
members clearly does not raise a presumption that joinder is
impracticable. Mullen, 186 F.3d at 624. While Plaintiffs argue
that

some

class

members

are

dispersed

across

the

country,

Plaintiffs have had no difficulty in locating or identifying the
putative class members. Accordingly, decertification of the usury
class is appropriate. See Ardoin v. Louisiana, No. 08-593, 2009 WL
958735, at *4 (M.D. La. Apr. 6, 2009) (holding that numerosity
requirement was not met where the plaintiff’s proposed class
consisted of no more than eighteen putative class members).
As to the FDCPA class, Plaintiffs argue that the settlement
did not resolve any FDCPA claims, and that the FDCPA class should
not be altered. (R. Doc. 794 at 1.) However, courts “remain under
a continuing obligation to review whether proceeding as a class
5

action is appropriate, and may modify the class or vacate the class
certification pursuant to evidentiary developments arising during
the course of litigation.” Ellis v. Elgin Riverboat Resort, 217
F.R.D.

415,

419

(N.D.

Ill.

2003)

(citing

Eggleston

v.

Chi

Journeymen Plumbers’ Local Union No. 130, 657 F.2d 890, 896 (7th
Cir. 1981) (other citations omitted)). The party who seeks to
maintain a lawsuit as a class action bears the burden of producing
a record demonstrating the continued propriety of maintaining the
class action. Id. (citing Stastny v. S. Bell Tel. & Tel. Co., 628
F.2d 267, 277 (4th Cir. 1980)). Steeg Law argues that discovery
and pre-trial litigation has revealed that the FDCPA class consists
of twenty-five or fewer members. (R. Doc. 795 at 4.) Steeg Law
contends that throughout this litigation Plaintiffs have asserted
that Steeg Law concealed the identities of potential FDCPA class
members. Id. at 5. However, this Court recently determined that
Steeg Law has not concealed the identity of potential class members
and has complied with all of its discovery responsibilities in
this case. See (R. Doc. 756.) Steeg Law asserts that it sent “less
than [twenty-five] lien letters within the one-year period the
Court

included

Plaintiffs

in

cannot

the

class

produce

any

certification
evidence

Order,” 5

that

the

and

FDCPA

that
class

5 The Court certified an FDCPA class of “unit owners who received letters
identical to or substantially similar to those attached as Exhibits ‘A’ and ‘D’
of the original complaint during the year prior to the filing of the action.”
(R. Doc. 464 at 16.)

6

consists of more than twenty-five individuals. (R. Doc. 795 at 5.)
The Court finds that the FDCPA class must also be decertified.
Despite years of litigation, Plaintiffs have not produced any
evidence that the FDCPA class consists of more than twenty-five
individuals. Further, Plaintiffs have not demonstrated that class
members

are

difficult

to

identify

or

that

the

class

is

geographically dispersed. Accordingly, Plaintiffs’ FDCPA monetary
class is decertified.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the class of Plaintiffs asserting
claims under the Fair Debt Collection Practice Act in this matter
is DECERTIFIED.
IT IS FURTHER ORDERED that the class of Plaintiffs asserting
claims under Louisiana usury law is DECERTIFIED.
New Orleans, Louisiana this ______ day of _______, 2017.
31st
January

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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