Barlow v. Safety National Casualty Corporation et al

Filing 59

ORDER & REASONS denying without prejudice 57 Motion to approve putative class communication. FURTHER ORDER that it is timely for this case to be returned to the Middle District of Louisiana. Signed by Judge Martin L.C. Feldman on 3/6/2013. (CAA) Modified on 3/6/2013 (CAA).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

CAMILLA BARLOW, individually
and as representative of a class

CIVIL ACTION

VERSUS

NO. 11-236

SAFETY NATIONAL CASUALTY
CORPORATION, ET AL.

SECTION “F”

ORDER AND REASONS
Before the Court is the plaintiff’s motion to approve putative
class communication.

For the reasons that follow, the motion is

DENIED without prejudice.
Background
This putative class action lawsuit arises out of alleged
unlawful collection practices engaged in by the defendants in their
efforts to collect on a bail bond obligation after the bond
forfeiture judgment had been set aside.
This Court has previously summarized the facts of this case in
its Order and Reasons dated March 6, 2012, in which the Court
granted in part and denied in part the defendants’ motion to
dismiss the plaintiff’s complaint; in particular, the plaintiff’s
abuse of process claim survived the defendants’ pleadings challenge
and

the

Federal

Debt

Collection

1

Practices

Act

claims

were

dismissed, but with permission to cure.

With leave of Court, the

plaintiff filed a second amended complaint on March 15, 2012.

The

defendants again challenged the sufficiency of the plaintiff’s
amended FDCPA claims.

On May 31, 2012 this Court granted in part

and denied in part the defendants’ motion such that some of the
plaintiff’s FDCPA claims survived the defendants’ challenge.

In

light of this motion practice, the facts of this case are familiar:
On September 30, 2007 Camilla Barlow paid AAA Bail Services,
Inc. $475.00 for a bail premium in order to bail her son, Eric
Dougherty, out of jail.

In connection with posting the bond, and

as collateral, Barlow was required to execute a promissory note for
$3,500.00 and an indemnity agreement.
various

contracts,

which

include

In fact, Barlow executed

indemnification

obligations

including a “Contract & Application for Bail Bond,” “Indemnitor
Application,” and “Bail Bond Indemnitor Promises.”
On February 1, 2008 Doughterty failed to appear for his
arraignment; the court issued a bench warrant and an order of bond
forfeiture.

One week later, on February 8, the court executed a

judgment in favor of the State of Louisiana and against Eric
Dougherty, as principal, and Safety National Casualty Corporation,
as surety, for $3,500.00. On March 4, 2008 Eric Dougherty appeared
in court through counsel, at which time the bench warrant was

2

recalled and the bond forfeiture judgment was set aside.1
Barlow complains that, beginning on March 11, 2008 Singletary
& Associates, A Professional Law Corporation, initiated collection
efforts against Barlow for the bond amount of $3,500.00, including
by sending letters on several occasions and, on one occasion, a
non-lawyer telephoned Barlow, failed to identify herself as a nonlawyer and threatened litigation to collect the $3,500.00 bond.2
Barlow says that Commercial Surety Consultants, Inc. And
Financial Recovery Agency, Inc. also attempted to collect the
$3,500.00 by correspondence dated February 2, 2010, February 22,
2010, and March 4, 2010. For example, the February 22, 2010 letter
stated:
Re: Judgment of Bond Forfeiture $3,500.00....
Dear CAMILLA BARLOW,
This account
collection.

has

been

listed

with

our

office

for

1

According to the defendants, Safety National was not
provided notice, nor was it entitled to notice under Louisiana law,
of the later appearance of the criminal defendant. And, defendants
suggest, even though the bond may have been deemed satisfied,
Safety National still had a judgment recorded against it and was
not provided with notice by the court or sheriff of its
satisfaction.
All of which this Court might consider in the
context of future motion practice, once the pleadings are complete,
that might present challenges beyond that of the technical
sufficiency of the plaintiff’s allegations.
2

In particular, the plaintiff contends that Singletary &
Associates sent correspondence on March 11, 2008, March 25, 2008,
May 28, 2010 and June 21, 2010; she says that she received the
telephone call on July 7, 2010.
3

You are contractually obligated to pay this account
because a judgment of bond forfeiture has been filed
against SAFETY NATIONAL CASUALTY CORP. You may have an
opportunity to reduce this debt by obtaining a
cancellation of the bond forfeiture judgment. We advise
you to seek independent legal advice to inform you of
your rights and responsibilities. If you are unable to
cancel this judgment of bond forfeiture or refuse to do
so, we shall be left with no alternative but to seek the
collection of the entire debt.
This communication is from a debt collector.
attempt to collect a debt....

This is an

Unless you notify this office within 30 days after
receiving this notice that you dispute the validity of
this debt or any portion thereof, this office will assume
this debt is valid....
On July 7, 2010 -- the same day Barlow alleges that she received a
phone call from Singletary & Associates threatening litigation -Safety National Casualty Corporation indeed sued Barlow (and 25
other persons) in Baton Rouge city court for breach of contract
based on the indemnity agreement; the lawsuit was drafted by
Singletary & Associates.

Six days later, the Baton Rouge city

court returned the petition because of “improper cumulation of
defendants”; the court invited counsel for Safety National to refile its petition for damages for breach of contract to indemnify
a commercial surety, but Safety National has yet to re-file.
Nonetheless on July 26, 2010 Singletary & Associates, by letter,
informed Barlow that she had been sued.
On December 14, 2010 Barlow, on behalf of a putative class,
sued Safety National Casualty Corporation, Singletary & Associates,

4

A.P.L.C., Financial Recovery Agency, Inc., and Commercial Surety
Consultants, Inc. in the U.S. District Court for the Middle
District of Louisiana, alleging three violations of the Fair Debt
Collection Practices Act and a claim for abuse of process under
Louisiana law.
defendants’

In response to Barlow’s contentions that the

pursuit

of

Safety

National’s

indemnity

rights

constituted improper collection efforts, the defendants responded
with a motion to dismiss.

Almost one week before her opposition

papers were due, on March 22, 2011, Barlow filed a notice of
dismissal, and the lawsuit was dismissed without prejudice.
Just two weeks later, on April 8, 2011, Barlow re-filed her
complaint, again invoking the U.S. Middle District court’s federal
question jurisdiction under the Fair Debt Collection Practices Act,
and asserting the same claims and factual allegations.

The

plaintiff seeks to represent a class defined as:
All persons who were required to execute an indemnity
promise in connection with a Safety National Casualty
Corporation bail bond obligation and who were subject to
unlawful collection actions by [the defendants] even
though any underlying bench warrant(s) had been recalled
and any previously rendered Bond Forfeiture judgment(s)
had been set aside.
Barlow contends that each of the defendants were acting as agents
of Safety National Casualty Corporation in the capacity as “debt
collectors.”
This putative class action was reassigned to this Court from
the Middle District of Louisiana on August 29, 2011. On January 6,

5

2012 Barlow, with leave of Court, filed a first amended class
action complaint, in which she added Commercial Surety Consultants,
LLC as a defendant.

As noted, the defendants moved to dismiss the

plaintiff’s amended complaint, contending that the plaintiff’s
claims fall outside the scope of the Fair Debt Collection Practices
Act and that, even if the Act applies, the plaintiff fails to state
a claim for relief under both the Act and state law principles of
abuse of process.

The Court granted in part and denied in part the

defendants’ motion: in particular the Court determined that the
plaintiff had stated a claim for abuse of process, and rejected the
defendants’ argument that the bail bond indemnity obligation did
not constitute a debt; however, the Court determined that the
plaintiff failed to state a claim for FDCPA violations. The
plaintiff was permitted to amend her complaint, which she did.

In

response to the defendants’ challenge to the sufficiency of the
newly-amended FDCPA claims, the Court dismissed a few but not all
of the FDCPA claims. The defendants then requested that this Court
strike the plaintiff’s abuse of process claim pursuant to Louisiana
Code of Civil Procedure article 971; the Court denied the request
as untimely on July 24, 2012.
On November 16, 2012 the plaintiff filed a motion to certify
class, which is noticed for submission on March 27, 2013.

The

plaintiff now seeks an order approving a proposed putative class
communication.

6

I.
A.
District Courts have “both the duty and the broad authority to
exercise control over a class action and to enter appropriate
orders governing the conduct of counsel and parties.” See Gulf Oil
Co. v. Bernard, 452 U.S. 89, 100-102 (1981); see also Fed.R.Civ.P.
23(d).3

Nonetheless,

because

of

First

Amendment

concerns

implicated in restriction of communication, the Court must balance
the need for limitations with the potential interference with the

3

Federal Rule of Civil Procedure 23(d) provides:
(d) Conducting the Action.
(1) In General. In conducting an action under this rule, the
court may issue orders that:
(A)
determine the course of proceedings or prescribe
measures to prevent undue repetition or complication in
presenting evidence or argument;
(B)
require–to protect class members and fairly conduct the
action–giving appropriate notice to some or all class
members of:
(i)
any step in the action;
(ii)
the proposed extent of the
judgment; or
(iii)
the members’ opportunity to signify
whether they consider the
representation fair and adequate,
to intervene and present claims or
defenses, or to otherwise come into
the action;
(C)
impose conditions on the representative parties or on
intervenors;
(D)
require that the pleadings be amended to eliminate
allegations about representation of absent persons and
that the action proceed accordingly; or
(E)
deal with similar procedural matters.
(2)
Combining and Amending Orders. An order under Rule
23(d)(1) may be altered or amended from time to time
and may be combined with an order under Rule 16.
7

rights of the parties.

Id.

When communications are misleading,

coercive, or improper attempts to undermine Rule 23, they may be
restricted.

See Belt v. Emcare, Inc., 299 F. Supp. 2d 664, 667

(E.D. Tex. 2003)(collecting cases).
And, reflecting the guidance regarding the Court’s power to
restrict communications between attorneys and potential class
members announced in Gulf Oil Company v. Bernard, 452 U.S. 89
(1981), the Middle District of Louisiana’s Local Rule 23.1(D)
provides:
D. 1. Whenever a party or counsel desires to prohibit
another party or counsel from communicating concerning
such action with any potential or actual class member not
a formal party to the action, he or she shall apply in
writing to the court for such an order. In such
application,
the
parties
must
set
forth
with
particularity the abuses they fear will result from such
communication, along with the form of remedy they believe
would be appropriate to prevent frustration of the
policies of Rule 23.
2. The court will not enter an order prohibiting
communication with members of the class in the absence of
a clear record (and when necessary, an evidentiary
hearing) reflecting:
a. specific findings regarding the abuse the court seeks
to prevent;
b. the need for such an order, weighing the abuse sought
to be corrected and the effect it will have on the right
of a party to proceed pursuant to Rule 23 without
interference.
3. Any attorney who communicates with the class shall
preserve and retain in his or her files, until the final
conclusion of the action, a copy of all communications
which he or she has sent to any members of the class or
potential class.

8

B.
The plaintiff requests that the Court approve the following
proposed putative class communication, which her counsel intends to
mail to a list of indemnitors from a spreadsheet produced by
defendants:
RE:

Bail Bonds Collections by Singletary
Commercial Surety Consultants, Inc.

&

Associates/

Dear ______
You may be a member of a class action lawsuit
involving the collection practices of Singletary &
Associates, A.P.L.C. and Commercial Surety Consultants,
Inc.
Please indicate your answer to the following
question and return the form in the enclosed self
addressed, stamped envelope to the Law Offices of Andre
P. LaPlace, 2762 Continental Drive, Suite 103, Baton
Rouge, Louisiana 70808.
___ The person I helped bond out of jail appeared in
Court within 6 months of a bench warrant being issued for
failure to appear.
___ The person I helped bond out of jail did not go
to court.
Thank you,
Andre P. LaPlace
II.
In support of her request for approval of this proposed
communication, the plaintiff contends that she needs “to ascertain
the breadth of the putative class”, that “propounded discovery of
the defendants’ collection records have not yielded sufficient data
to identify the putative class, as defined”, and that Federal Rule
of Civil Procedure 23(d) “authorizes the District Court to regulate
9

communications with potential class members before certification.
Gulf Oil Co. v. Bernard, 452 U.S. 89, 100-102 [(1981)].”

That is

the extent of plaintiff’s submission.
The defendants urge the Court to deny the plaintiff’s motion
because the information sought by the proposed communication can
only be accurately and reliably determined by reviewing the public
record; confirming the veracity of any response to the proposed
communication would itself require a review of the relevant public
record.4
would

Thus, defendants insist that the proposed communication

not

result

in

any

meaningful,

accurate

or

reliable

information regarding a criminal defendant’s appearance. The Court
agrees.
4

The fact that the plaintiff is seeking this information
by these means, the defendants suggest, is telling about this case:
the only information the defendants have for each indemnitor is the
indemnity contract and the judgment of bond forfeiture which in
turn prompted the pursuit of indemnity. As defendants have pointed
out previously, no statutory notice of a criminal defendant’s
eventual appearance after forfeiture is provided and there is no
cancellation by the operation of law of the recorded judgment in
the mortgage record.
The defendants continue: “If Barlow wants to sue
Defendants for pursuing indemnity when the criminal defendant
appeared within the six-month window, such a claim presumes that
Defendants knew the criminal defendant had appeared. All evidence
has established this is not the case. If Barlow wants this Court
to conclude that Defendants are liable for relying on their
contracts when no notice is provided -- meaning that Defendants had
an obligation to check the record of each criminal case to
determine when there had been an appearance -- the same effort
would be required on Barlow’s part to satisfy the elements for
certification.” This argument is more directed at the merits of
certification (and, ultimately, of the underlying dispute of
course), but plaintiff should be mindful of these issues when
evaluating litigation risk.
10

It is noteworthy that, as defendants point out, the timing of
the plaintiff’s motion creates a logistical issue: the submission
date on the motion for class certification is March 27, whereas any
responses to the proposed communication would likely be sporadic
over

a

significant

period

of

time;5

thus,

the

proposed

communication would be of limited use, if any, given the timing of
the request relative to the hearing on the certification motion.6
In light of the arguments raised by the defendants, and
without the benefit of any response by the plaintiff, the Court
finds that the proposed class communication would not result in any
meaningful, accurate or reliable information regarding a criminal
defendant’s appearance.

The plaintiff has not suggested why the

targeted information cannot be obtained from the public record.7
Accordingly, IT IS ORDERED: that the plaintiff’s motion to

5

Plaintiff’s counsel provides no deadline for responses
in the proposed communication.
6

The plaintiff should be mindful of the Court’s concern
that the information sought by the proposed communication would
seem to go towards the plaintiff’s burden of showing numerosity.
Because the plaintiff filed her motion for class certification
months ago, the Court assumes that there is some evidence submitted
to support this necessary prerequisite to class certification. If
not, perhaps the plaintiff will be seeking a continuance of the
submission date on the motion for class certification until the
public records reveal potential class members.
7

Nor could plaintiff’s counsel credibly dispute that any
information obtained from the proposed mailing would, in any event,
need to be verified by cross-checking the public record.
11

approve putative class communication is DENIED without prejudice.8

New Orleans, Louisiana, March 6, 2013.

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

8

The plaintiff’s motion is denied without prejudice; if
plaintiff submits a more comprehensive request for class
communication, which addresses the defendants’ concerns, the Middle
District might wish to entertain a new request. It is timely for
this case to be returned to that court and it is SO ORDERED.
12