Calvert v. Alessi & Koeing, LLC

Filing 14

ORDER denying without prejudice 7 Motion to Certify Class. See order for specifics. Signed by Judge Larry R. Hicks on 1/18/12. (Copies have been distributed pursuant to the NEF - EM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
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STACY CALVERT, on behalf of herself and )
all similarly situated persons,
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Plaintiffs,
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v.
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ALESSI & KOENIG, LLC, a Nevada Limited )
Liability Company; DOE individuals 1 through )
20 inclusive and ROE Corporations 1 through )
20 inclusive,
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Defendants.
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2:11-CV-00442-LRH-PAL
ORDER

Before the court is Plaintiff Stacy Calvert’s Motion for Class Certification (#71). Defendant
Alessi & Koenig, LLC has not responded.
This is a putative class action for alleged violations of the Fair Debt Collection Practices

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Act (“FDCPA”), 15 U.S.C. § 1692e, and the Nevada Deceptive Trade Practices Act (“NDTPA”),

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N.R.S. § 598.0923, based on Defendant’s debt collection activities. Plaintiff requests certification

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of a class of consumers with Nevada addresses who, within one year prior to the filing of this

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action on March 24, 2011, were sent a collection letter by Defendant in a form materially identical

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or substantially similar to the form letter attached to the complaint, and the letter was not returned

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Refers to court’s docket entry number.

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by the postal service as undelivered. Plaintiff prays for actual and statutory damages and

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declaratory relief under the FDCPA, such additional damages as are allowed under the NDTPA,

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including punitives damages, and attorneys fees and costs.

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Notwithstanding the fact that Plaintiff’s motion is unopposed, the court may certify a class

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action “only if” each of the four prerequisites of Rule 23(a) and one of the requirements of Rule

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23(b) are satisfied. Fed. R. Civ. P. 23. The party seeking class certification bears the burden of

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establishing these requirements. Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1176 (9th Cir. 2007).

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Lack of opposition to a motion for certification does not lighten the movant’s burden or truncate

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the court’s inquiry. A class action “may only be certified if the trial court is satisfied, after a

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rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Gen. Tel. Co. of Sw. v.

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Falcon, 457 U.S. 147, 161 (1982). “[A]ctual, not presumed, conformance with Rule 23(a) remains

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. . . indispensable.” Id. at 160; accord In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 33 (2d

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Cir. 2006) (“[T]he requirements of Rule 23 must be met, not just supported by some evidence.”).

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Having reviewed Plaintiff’s supporting papers and the pleadings on file, the court concludes

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that Plaintiff has failed to carry her burden in at least two respects. First, Plaintiff has failed to

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establish that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ.

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P. 23(a)(1). While Plaintiff has submitted evidence that the collection letter at issue is a form letter,

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Plaintiff’s assertion that the letter was “mass mailed” to Nevada residents is pure speculation,

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unsupported by any evidence in the record. Nor can the court presume numerosity based merely on

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the facts that the proposed class is statewide and covers a one-year duration. Because Plaintiff has

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presented no evidence whatsoever of the likely number of class members, the court cannot find the

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numerosity requirement satisfied. Cf. Abels v. JBC Legal Grp., P.C., 227 F.R.D. 541 (N.D. Cal.

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2005) (finding numerosity satisfied upon the defendant’s admission that it sent similar or identical

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collection letters to at least 10,000 persons).

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Second, Plaintiff has also failed to establish that “the representative parties will fairly and

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adequately protect the interest of the class.” Fed. R. Civ. P. 23(a)(4). “This factor requires: (1) that

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the proposed representative Plaintiffs do not have conflicts of interest with the proposed class, and

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(2) that Plaintiffs are represented by qualified and competent counsel.” Dukes, 509 F.3d at 1185.

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Here, Plaintiff has presented no evidence whatsoever as to the qualifications and competency of

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proposed class counsel. Counsel’s perfunctory argument in Plaintiff’s motion is not evidence.

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Because Plaintiff has failed to satisfy at least two of the requirements for class certification,

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Plaintiff’s motion must be denied. The court therefore need not address and makes no findings as

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to whether the remaining requirements have been satisfied.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion for Class Certification (#7) is
DENIED without prejudice.

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IT IS SO ORDERED.

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DATED this 18th day of January, 2012.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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