Bank v. Caribbean Cruise Line, Inc.
ORDER: For the reasons set forth in the attached memorandum and order, the 60 Motion to Certify Class is denied. Ordered by Judge John Gleeson on 8/27/2014. (Herling, Adam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FOR ONLINE PUBLICATION
TODD C. BANK,
- versus -
CARIBBEAN CRUISE LINE, INC.,
A P P E A R A N C E S:
TODD C. BANK
119-40 Union Turnpike
Kew Gardens, NY 11415
Pro Se Plaintiff
GREENSPOON MARDER, P.A.
100 West Cypress Creek Road
Fort Lauderdale, FL 33309
Attorneys for Defendant
JOHN GLEESON, United States District Judge:
Pro se Plaintiff Todd Bank brings this putative class action against Caribbean
Cruise Line, Inc. (“CCL”) alleging violations of the Telephone Consumer Protection Act, 47
U.S.C. § 227. Bank has moved to certify a class pursuant to Federal Rule of Civil Procedure 23.
Because I conclude that Rule 23’s requirement for adequate representation of the proposed class
is not satisfied, the motion is denied.
Bank alleges that in August 2012 he received two telephone calls on his
residential telephone line from CCL or a third party operating on CCL’s behalf that used a
prerecorded voice to state that if he stayed on the line and completed a survey he would be given
an opportunity to take a cruise. See Compl. ¶¶ 7-8, Nov. 8, 2012, ECF No. 1. Bank claims that
these phone calls violated 47 U.S.C. § 227(b)(1)(B), which makes it unlawful “to initiate any
telephone call to any residential telephone line using an artificial or prerecorded voice to deliver
a message without the prior express consent of the called party” unless the call is covered by an
exemption, none of which are relevant here.
Bank moved on July 18, 2014, to certify a class consisting of:
all persons to whose residential telephone lines CCL, or a third party acting with
the authorization of CCL, placed one or more telephone calls using an artificial or
prerecorded voice that delivered a message that advertised the commercial
availability or quality of property, goods, or services, other than Defendant, its
officers, employees, representatives, and their families (the “Class”), during the
period from February 7, 2012, to the commencement of this action until the
present . . . .
Compl. ¶ 18, Nov. 8, 2012, ECF No. 1.
A. Rule 23 Standards
Rule 23(a) provides that:
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 parties will fairly and
adequately protect the interests of the class.
Fed. R. Civ. P. 23(a); see also Brown v. Kelly, 609 F.3d 467, 475 (2d Cir. 2010) (“To be
certified, a putative class must first meet all four prerequisites set forth in Rule 23(a):
numerosity, commonality, typicality, and adequacy.”). In addition, certification must be
“deemed appropriate under one of the three subdivisions of Rule 23(b).” Brown, 609 F.3d at
476. Here, Bank seeks certification under Rule 23(b)(3), which provides that a class may be
maintained if “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.” Fed.
R. Civ. P. 23(b)(3)).
In deciding a motion for class certification, a district court “is required to make a
‘definitive assessment of Rule 23 requirements, notwithstanding their overlap with merits
issues,’ and must resolve material factual disputes relevant to each Rule 23 requirement.”
Brown, 609 F.3d at 476 (quoting In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir.
2006)). The party moving for certification has the burden of proving by the preponderance of
the evidence that the Rule 23 requirements have been met. Levitt v. J.P. Morgan Sec., Inc., 710
F.3d 454, 464-65 (2d Cir. 2013). “The Second Circuit has emphasized that Rule 23 should be
‘given liberal rather than restrictive construction.’” Gortat v. Capala Bros., Inc., 257 F.R.D.
353, 361 (E.D.N.Y. 2009) (quoting Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997)).
Here, Bank fails to meet the adequacy-of-representation requirement of Rule
23(a)(4). To demonstrate that he can fairly and adequately protect the interests of the proposed
class, Bank must establish that: (1) “there is no conflict of interest between the named plaintiffs
and other members of the plaintiff class” and (2) that “class counsel is qualified, experienced,
and generally able to conduct the litigation.” Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir.
Bank seeks to serve as both class representative and class counsel. This would
create a conflict of interest: Bank’s duty to fairly represent the class’s interests would
impermissibly conflict with his interest in obtaining legal fees. See Matassarin v. Lynch, 174
F.3d 549, 559 (5th Cir. 1999) (describing this conflict of interest); Bank v. Hydra Group, LLC,
No. 10-CV-1770 (E.D.N.Y. Aug. 6, 2013) Report & Recommendation 10, ECF No. 35, adopted
Aug. 23, 2013 (“The principle [that class counsel may not also act as the class representative] is
based on the concept that an attorney should not have a personal interest in the outcome of a
litigation while a class representative must be personally invested in its outcome; these dual
priorities cannot be reconciled in the same person.”). Indeed, it is well settled in this Circuit that
“a pro se plaintiff may not bring an action in which he will serve as both class representative and
class counsel.” Jaffe v. Capital One Bank, No. 09-CV-4106, 2010 WL 691639, at *10 (S.D.N.Y.
Mar. 1, 2010); see also Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) (a pro se plaintiff
may not seek to represent the interests of third parties); Rodriguez v. Eastman Kodak Co., 88
F.App’x 470, 471 (2d Cir. 2004) (summary order) (“[I]t is well established that ‘a pro se class
representative cannot adequately represent the interests of other class members.’” (quoting 5
JAMES W. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 23.25(4)(c)(v) (3d ed. 2003)); Bank v.
Hydra Group, LLC, No. 10-CV-1770 (E.D.N.Y. Aug. 6, 2013) Report & Recommendation 10,
ECF No. 35, adopted Aug. 23, 2013 (“Decisions in this district hold that a class representative
cannot serve as both class representative and class counsel; some of these decisions involve Mr.
Bank himself.”); 7A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 1769.1
(3d ed. 2005) (“[S]everal courts have ruled that the class attorney cannot be the named
representative or even a member of the class.”).
For the reasons stated above, I conclude that Rule 23’s requirement of adequate
representation is not satisfied and the motion for class certification is therefore denied. 1
In opposition to the class certification motion, CCL also argues that Bank fails to meet other
requirements of Rule 23. Because I deny the motion on the ground set forth in the text I do not reach these other
John Gleeson, U.S.D.J.
Dated: August 27, 2014
Brooklyn, New York
arguments. CCL also submitted a supplemental exhibit to their opposition to the motion on August 21, 2014, the
day before oral argument was held. See Supplemental Ex., Aug. 21, 2014, ECF No. 71. At oral argument, Bank
requested that I grant him an opportunity to respond to this submission. I have decided this motion without
reference to CCL’s last minute submission; accordingly, Bank’s application to respond is denied as moot.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?