Zirogiannis v. National Recovery Agency, Inc.
ORDER granting 48 Motion to Certify Class: See attached. Ordered by Judge Denis R. Hurley on 12/22/2016. (Gapinski, Michele)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JEANNETTE ZIROGIANNIS, an
individual, on behalf of herself and all
others similarly situated,
MEMORANDUM & ORDER
Civil Action No. 14-3954
NATIONAL RECOVERY AGENCY, INC.,
Abraham Kleinman, Esq.
626 RXR Plaza
Uniondale, New York 11556-0626
The Salvo Law Firm, P.C.
185 Fairfield Avenue, Suite 3C/3D
West Caldwell, New Jersey 07006
By: Cindy D. Salvo, Esq.
HURLEY, Senior District Judge:
Plaintiff Jeanette Zirogiannis (“plaintiff”) commenced this action against
Defendant National Recovery Agency, Inc. (“defendant” or “NRA”) alleging
violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.
(“FDCPA”). Presently before the Court is plaintiff’s renewed1 motion (1) to certify a
class consisting of “(a) all natural person[s] in the State of New York; (b) to whom
Defendant sent a written communication containing language materially similar to
By Memorandum & Order dated December 11, 2015, the Court denied
plaintiff’s motion for class certification, without prejudice to renew, because it was
not properly supported by evidentiary materials and therefore numerosity, the only
requirement addressed by the Court, had not been demonstrated.
Exhibit C of the Complaint; (c) subsequent to a request for a validation pursuant to
the FDCPA; (d) which was not returned as undelivered by the United States Postal
Service; [and] (e) during the one year immediately preceding the filing of the
Complaint and ending 21 days thereafter;” (2) appointing plaintiff class
representative, and (3) appointing Abraham Kleinman as class counsel. (Pl.’s Notice
of Motion [DE 48] at p. 1.) For the reasons set forth below, the motion is granted.
The factual background for this action was set forth in this Court’s December
11, 2015 Memorandum and Order denying defendant’s motion for summary
judgment ( the “MSJ Order”). It is repeated here to the extent necessary to give
context to the present motion for class certification.
NRA sent an initial collection letter, dated June 27, 2013, to plaintiff at 19
East Shore Drive, Babylon New York via first-class mail with proper postage affixed
(the “June letter”). The letter stated that plaintiff’s National Grid accounts had
been forwarded to NRA for collection and provided the amount owed on each
account. The letter also contained a validation notice required by 15 U.S.C. § 1692g.
Due to circumstances arising from damage to her home from Superstorm Sandy,
Plaintiff did not physically receive the letter until sometime in August 2013.
By letter dated August 22, 2013, plaintiff requested verification of the alleged
Enclosed please find a copy of your June 27, 2013
I write with respect to NRA ID # YVY242.
1) I dispute the validity of all portions of National
Grid account # 7071080622.
2) I dispute the validity of all portions of National
Grid account # 7071080612.
3) Please send me verification of these disputed
4) Please send me the name of the original creditor.
5) Please send me the address of the original
6) PLEASE SEND ME THE TRUE CORPORATE
NAME OF NATIONAL GRID LONG ISLAND.
(Compl. Ex. B (Capitalization in Original).)
Thereafter, NRA sent plaintiff a letter, dated August 27, 2013, which states
in pertinent part:
Our offices are in receipt of your letter of dispute pursuant to
15 U.S.C. § 1681s-2 of the Fair Credit Reporting Act. Please be
advised we have reviewed your dispute and find the dispute
lacking in any specific facts or information which would allow
us to conduct an investigation. Because your dispute alleges
no specific information to form the basis for an investigation,
we are unable to investigate the dispute pursuant to 15 U.S.C.
§ 1681s-2(a)(8)(F)(I) of the FCRA.
Federal Trade Commission regulation 16 C.F.R. § 660.4(d)
states a direct dispute notice must include: (1) sufficient
information to identify the account or other relationship that is
in dispute, such as an account number and the name, address,
and telephone number of the consumer, if applicable; (2) the
specific information that the consumer is disputing and the
explanation of the basis for the dispute; and (3) all supporting
documentation or other information reasonable [sic] required
by the furnisher to substantiate the basis of the dispute. The
documentation may include a copy of the relevant portion of
the consumer report that contains the allegedly inaccurate
information, a police report, a fraud or identity theft affidavit,
a court order, or account statements.
In acknowledgment of your dispute, we have requested that
consumer reporting agencies report the account as disputed
Listed below is a summary of the charges on the account and
any applicable fees or interest. Should you have any questions
regarding this account or if you wish to discuss payment
arrangements, please feel free to contact us . . . .
(Compl. Ex. C ( the “August letter”).)
NRA then sent plaintiff a letter dated September 4, 2013, which states it was
enclosing a copy of “the itemized bill(s) you requested. After review, please remit
the balances by return mail.” (Compl. Ex. C (DE 1 pp. 18-31) (the “September
letter”).) The letter lists “the accounts included in the amount due” as “National
Grid [Account No.] 7071080622 [Amount Owed] 275.58 [Service Date] 10/29/2012"
and “National Grid [Account No.] 7071080612 [Amount Owed] 133.63 [Service
Date] 10/29/2012." (Id.) Included as attachments were an “Account Balance List” for
LIPA “Account 7071080622" and an “Account Balance List” for National Grid
Account 7071080612.” (Id.)
Plaintiff did not respond to the August or September letters. She commenced
this action on June 25, 2014, alleging that the August letter violates the FDCPA.
In its Memorandum and Order dated December 11, 2015, this Court
concluded that “NRA’s August letter violates the FDCPA whether analyzed under
§1692g or §1692e(10).” (MSJ Order at 15.)
Standard - Class Certification
Class action certification is governed by Federal Rule of Civil Procedure 23.
In seeking class certification, a plaintiff must first demonstrate that the
prerequisites contained in Rule 23(a) have been satisfied. Fed. R. Civ. P.
23(a)(1)-(4); see also Teamsters Local 445 Freight Div. Pension Fund v. Bombardier
Inc., 546 F.3d 196, 201-02 (2d Cir. 2008) ("In determining whether class
certification is appropriate, a district court must first ascertain whether the claims
meet the preconditions of Rule 23(a) of numerosity, commonality, typicality, and
Specifically, Rule 23(a) states 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
A plaintiff must also show that the putative class falls within one of the
categories set forth in Rule 23(b). Fed. R. Civ. P. 23(b)(1)-(3); Brown v. Kelly, 609
F.3d 467, 476 (2d Cir. 2010) ("Not only must each of the requirements set forth in
Rule 23(a) be met, but certification of the class must also be deemed appropriate
under one of the three subdivisions of Rule 23(b).").
The Second Circuit has emphasized that "the certification decision requires
'rigorous analysis' " on the part of the district court. In re Initial Pub. Offerings Sec.
Litig., 471 F.3d 24, 33 (2d Cir. 2006); see also id. at 33 n. 3 (finding that the
"rigorous analysis" "applies with equal force to all Rule 23 requirements, including
those set forth in Rule 23(b)(3)"). In this regard, the Second Circuit has set forth
the following standard:
(1) a district judge may certify a class only after making
determinations that each of the Rule 23 requirements has
been met; (2) such determinations can be made only if the
judge resolves factual disputes relevant to each Rule 23
requirement and finds that whatever underlying facts are
relevant to a particular Rule 23 requirement have been
established and is persuaded to rule, based on the
relevant facts and the applicable legal standard, that the
requirement is met; (3) the obligation to make such
determinations is not lessened by overlap between a Rule
23 requirement and a merits issue, even a merits issue
that is identical with a Rule 23 requirement; (4) in
making such determinations, a district judge should not
assess any aspect of the merits unrelated to a Rule 23
requirement; and (5) a district judge has ample discretion
to circumscribe both the extent of discovery concerning
Rule 23 requirements and the extent of a hearing to
determine whether such requirements are met in order to
assure that a class certification motion does not become a
pretext for a partial trial of the merits.
Id. at 41. The party seeking class certification bears the burden of showing, by a
preponderance of the evidence, that the requirements of Rule 23 are met.
Teamsters, 546 F.3d at 201-04; see Brown, 609 F.3d at 476.
Rule 23(a) Requirements
Rule 23(a) requires a finding that the numerosity of injured persons makes
joinder of all class members “impracticable.” Robidoux v. Celani, 987 F.2d 931, 935
(2d Cir. 1993). Generally, courts will find a class sufficiently numerous when it
comprises forty or more members. See id. at 936. A plaintiff need not provide “a
precise quantification of their class,” and courts may “make common sense
assumptions” to support a finding of numerosity. Pecere v. Empire Blue Cross and
Blue Shield, 194 F.R.D. 66, 69 (E.D.N.Y. 2000). Nevertheless, a plaintiff seeking
class certification “ ‘must show some evidence of or reasonably estimate the number
of class members.’ ” Id. (quoting LeGrand v. New York City Trans. Auth., 1999 WL
342286 *3 (May 26, 1999)).
Plaintiff maintains that the numerosity requirement is met as “336
individuals in the State of New York received a similar letter during the relevant
time,” relying upon the following colloquy between Magistrate Judge Tomlinson at
the initial conference held in this matter as support for that figure:
All right. Well, as I do in all of these
cases brought under the Fair Debt
Collections Practices Act, I’m going to
ask the question whether or not
there’s been any discussion about
trying to resolve this . . . .
MR. KLEINMAN: I’ve requested of defendant to find out
the number of such letters that were
issued . . . .
Your Honor, defendant believes that
this case should be settled on an
individual basis . . . . However, based,
in good faith, trying to work through
this issue, we have attempted to
determine the number of similar
letters that were sent to consumers in
New York within the past prior year
before the complaint was filed. There
appears to be 336 of those letters. . . . .
(Transcript of Proceedings held on 9/8/2014 (DE 43) at p. 5.)
Defendant disputes that sufficient evidence of numerosity has been
submitted because the class is defined as New York consumers who received the
subject letter “subsequent to a request for validation pursuant to the FDCPA” and
the foregoing reference to 336 letters was untethered to a FDCPA validation
request. (Def’s. Opp. Mem. at 2.)
Preliminarily, it is important to note that the currently proposed class
definition mirrors that contained in the Complaint. See Compl. ¶ 28. Thus, it is
appropriate to view counsel’s statement against that backdrop absent any affidavit
from defendant specifically disputing that the 336 letters were sent subsequent to a
FDCPA validation request.
Given that a “Court does not need evidence of exact class size or identity of
class . . . and may make common sense assumptions without the need for precise
quantification of the class” Annunziato v. Collecto, Inc., 293 F.R.D. 329, (E.D.N.Y.
2013) (internal quotations and citations omitted), this Court may reasonably infer
based on the materials before it that the number of class members exceeds forty.2
The Court thus finds that the numerosity requirement has been met.
Commonality and Typicality
Rule 23's commonality factor “ ‘requires the plaintiff to demonstrate that the
The Court is cognizant that Defendant’s Memorandum references that the
subject letter was “designed . . . to respond to consumers who had disputed their
debts pursuant to the FCRA[Fair Credit Reporting Act ] and “is also less frequently
sent to consumers whose FDCPA-based disputes were not timely, as was the case
here.” (Def.’s Opp. Mem. at 4.) However, “less frequently” is both unspecific and
exceedingly unhelpful. Defendant’s reluctance to specify how frequently the subject
letter was sent to consumers subsequent to a FDCPA validation request warrants
an inference that numerosity has been met.
class members have suffered the same injury’ which must turn ‘upon a common
contention . . . of such a nature that it is capable of classwide resolution . . . .’ ”
Claridge v. North American Power & Gas, LLC, 2016 WL 7009062 (S.D.N.Y. Nov.
30, 2016) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345
(2011)).“[C]laims based on uniform misrepresentations to all members of a class are
appropriate subjects for class certification” because “uniform misrepresentations”
can be adjudicated with “no need for a series of mini-trials.” In re U.S. Foodservice
Inc. Pricing Litig., 729 F.3d 108, 118 (2d Cir. 2013) (quotation marks omitted).
"To establish typicality under Rule 23(a)(3), the party seeking certification
must show that 'each class member's claim arises from the same course of events
and each class member makes similar legal arguments to prove the defendant's
In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir.
2009) (quoting Robidoux, 987 F.2d at 936)).
The requirements of both commonality and typicality are met here.3 The
claims of the proposed class members turn on the common contention that the
subject letter violates the FDCPA and entitles them to statutory damages. Cf.
R.A.G. v. Buffalo City Sch. Dist. Bd. of Educ., 569 Fed. Appx. 41, 42 (2d Cir. 2014)
(stating commonality met where “entire case is predicated on policy that applied
uniformally to all students that qualify for supplemental services under the IDEA.”)
Typicality is met where, as here, the claims of the proposed class arise from the
The Court notes that defendant does not challenge that these two
requirements are met.
same course of events and similar arguments are made to prove liability. See
Mazzei v. The Money Store, 829 F.3d 260, 272 (2d Cir. 2016); Commer v. Cisneros,
37 F.3d 775 (2d Cir. 1994).
"Adequacy entails inquiry as to whether: 1) plaintiff's interests are
antagonistic to the interest of other members of the class and 2) plaintiff's attorneys
are qualified, experienced and able to conduct the litigation." In re Flag Telecom
Holdings, 574 F.3d at 35 (internal quotation marks and citations omitted). "The
focus is on uncovering conflicts of interest between named parties and the class they
seek to represent." Id. (internal quotation marks and citations omitted).
Defendant contends that plaintiff is not an adequate representative because
“she gave willfully false responses in discovery,” making her “vulnerable to an
aggressive cross-examination at trial” and she has “presented no evidence of her
adequacy.” (Def.’s Opp. Mem. at 7-11.) Further, counsel is “inadequate as he
encouraged false testimony.” (Id. at 12.) Both assertions are based on plaintiff’s
deposition in this matter. According to defendant:
Plaintiff denied ever having been a plaintiff in any other
lawsuits. . . . Plaintiff’s counsel, Abraham Kleinman, then
coached Plaintiff to change her testimony by saying “If
you’re unsure . . . .“ Plaintiff then stated “I’m unsure.”
When [defense] counsel asked her again if she had ever
been a plaintiff in other lawsuits, she admitted that she
had twice sued in connection with automobile accidents. .
. . When asked if she had ever been a plaintiff in any
FDCPA matters, she again said she was “unsure.”
In truth, [plaintiff] has been the proposed named
plaintiff in at least three other FDCPA class action
lawsuits filed in the Eastern District of New York.
(Def.’s Mem. in Opp. at 8 (citations to deposition omitted).)
Having reviewed the entire deposition (DE 33-5), the Court concludes that it
does render plaintiff an inadequate representative. The question of whether
plaintiff commenced other lawsuits was first broached as follows:
You’ve filed other Fair Debt Collection
Practices Act lawsuits, correct?
Yes, I have.
I don’t know.
You don’t know how many lawsuits you
You are a class member in those other
lawsuits, though, correct?
You don’t know?
I don’t know.
I’m going to move past this. . . .
(DE 33-5 at p. 62-63.)
Later, the following colloquoy took place:
Have you ever been a plaintiff in any other
Fair Debt Collection Practices Act lawsuits?
MR KLEINMAN: Objection. Asked and
You can respond.
You have not been a plaintiff in any other
MR. KLEINMAN: If you’re unsure –
You’re unsure whether you’re a plaintiff in
any other lawsuits?
Lawsuits pertaining to collections.
Let’s start over.
Have you ever been a plaintiff in any
Besides the car accident, have you been a
plaintiff in any other lawsuits?
Have you been a plaintiff in any other
lawsuits under the Fair Debt Collection
Are you confused by the question or you don’t
I don’t recall.
(DE 33-5 at p. 69.25 -71.10.)
Plaintiff did initially testify that she had filed other FDCPA lawsuits. When
the topic was later broached, counsel’s questions confusedly referred first to FDCPA
then “other lawsuits” and “any lawsuits” as well as switched tenses from the
present (“You’re unsure whether you’re a plaintiff in any other lawsuits?”) to the
past (“Have you ever been a plaintiff in any lawsuits?”). In other words, based on
the “cold” transcript it appears to this Court that plaintiff was somewhat confused
rather than untruthful. Moreover, given that this Court has already held that the
subject letter violates the FDCPA, plaintiff’s credibility is a non-issue as to the
merits of this action. Finally, the transcript of her deposition demonstrates that
“plaintiff has some basic knowledge of the lawsuit and is capable of making
intelligent decisions based upon [her] lawyers’ advice.” Diaz v. Residential Credit
Solutions, Inc., 297 F.R.D. 42, 52 (E.D.N.Y. 2014). Among other things, Plaintiff
knew why the case was brought, the basis for the claim that the subject letter
violates the FDCPA, and the difference between disputing a false entry on her
credit report and a debt collector’s account. In sum, the Court finds that plaintiff
will adequately represent the class.
With respect to plaintiff’s counsel’s “If you’re unsure,” that appears it be an
attempt - albeit a clumsy one - to ensure the record was not misleading given her
prior testimony that she was in fact a plaintiff in a FDCPA action, distinguishing
this case from what transpired in Friedman-Katz v. Lindt & Sprungli (USA). Inc.,
270 F.R.D. 150 (S.D.N.Y. 2010). Counsel has been both counsel and co-counsel in
other FDCPA actions, including in this District, which supports the conclusion that
he is experienced. Indeed, while perhaps not rising to the level of an estoppel, it is
notable that this defendant recently consented to plaintiff’s counsel being appointed
class counsel in connection with the settlement in Gadime v. NRA Group, LLC,
Civil Action No. 15-04841 (E.D.N.Y.). Based on the record before this Court,
plaintiff's attorney appears qualified, experienced and able to conduct the litigation.
Having determined that plaintiff has satisfied the requirements of Rule
23(a), it will now address whether the putative class falls within one of the
categories set forth in Rule 23(b).
Rule 23(b) provides that once Rule 23(a), a class action may be maintained if
(1) prosecuting separate actions by or against individual
class members would create a risk of:
(A) inconsistent or varying adjudications with
respect to individual class members that would
establish incompatible standards of conduct for the
party opposing the class; or
(B) adjudications with respect to individual class
members that, as a practical matter, would be
dispositive of the interests of the other members
not parties to the individual adjudications or would
substantially impair or impede their ability to
protect their interests;
(2) the party opposing the class has acted or refused to act
on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole; or
(3) 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). See Brown v. Kelly, 609 F.3d 467, 476 (2d Cir. 2010) ("Not only
must each of the requirements set forth in Rule 23(a) be met, but certification of the
class must also be deemed appropriate under one of the three subdivisions of Rule
Although plaintiff asserts that class certification is appropriate under all
three subdivision of Rule 23(b), as the Court concludes that class certification is
appropriate under subdivision 3, it will limit its discussion to that provision.
Rule 23(b)(3)requires two conditions be met. The first prong is predominance.
“The predominance requirement of Rule 23(b)(3) tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation . . . . [T]he
requirement is satisfied if resolution of some of the legal or factual questions that
qualify each class member’s case as a genuine controversy can be achieved through
generalized proof, and if these particular issues are more substantial than the
issues subject only to individualized proof.” Mazzei v. The Money Store, 829 F.3d
260, 272 (2d Cir. 2016) (internal quotation marks and citations omitted). While
Rule 23(a)’s commonality requirement mandates that common questions of law or
fact exist among the proposed class members, Rule 23(b)(3)’s predominance
requirement “is more stringent and requires that common questions be the focus of
the litigation.” Diaz v. Residential Credit Solutions, Inc., 297 F.R.D. 42, 53
Here, the common question is whether the subject letter sent by defendant to
consumers violated the FDCPA and predominates the litigation. In fact, defendant
does not contest that the predominance requirement has been meet. Rather, it
argues only that the second prong of Rule 23(b)(3) - superiority - is not satisfied.
(See Def.’s Opp. Mem. at 14-15.)
The second prong of Rule 23(b)(3) requires a determination that a class action
is superior to other methods of adjudication, using the following four guideposts:
(A) the interest of the members of the class in individually
controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already commenced by or against members of
the class; (C) the desirability or undesirability of
concentrating the litigation of the claims in the particular
forum; and (D) the difficulties likely to be encountered in
the management of a class.
Fed. R. Civ. P. 23(b)(3).
Here, “class members have little interest in maintaining separate actions
since [there has been a determination] of liability.” In re Nassau County Strip
Search Cases, 461 F.3d 219, 230 (2d Cir. 2006). The progress of this litigation,
including the determination of liability, and the streamlining that will result from
concentrating litigation in this forum further support certification of the class. Id.
Given the relatively small size of the class, no difficulties are anticipated in
managing the class.
Defendant asserts that the interest of class members in controlling the
prosecution of separate actions warrants the conclusion that a class action is not
Each class member of Plaintiff’s proposed class
potentially has a higher interest in controlling his or her
own case because of the class action limit on statutory
damages. If each individual plaintiff controlled his/her
own cases, he/she would each be eligible, if successful, to
recover statutory damages of up to $1,000, depending on
the circumstances of their own cases. See 15 U.S.C.
1692(k)(2)(a). Moreover, they would be entitled to pursue
actual damages, where appropriate. See 15 U.S.C.
(Def.’s Mem. in Opp. at 15.)
Damages recoverable in a FDCPA are governed by 15 U.S.C. §1692k which
distinguishes between damages recoverable by an individual and those recoverable
in a class action. It provides in relevant part:
Except as otherwise provided by this section, any debt
collector who fails to comply with any provision of this
subchapter with respect to any person is liable to such
person in an amount equal to the sum of-(1) any actual damage sustained by such person as a
result of such failure;
(2)(A) in the case of any action by an individual, such
additional damages as the court may allow, but not
exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each
named plaintiff as could be recovered under subparagraph
(A), and (ii) such amount as the court may allow for all
other class members, without regard to a minimum
individual recovery, not to exceed the lesser of $500,000
or 1 per centum of the net worth of the debt collector; and
15 U.S.C. § 1692k(a).
While the amount of damages recoverable in a class action differ from those
recoverable in an individual lawsuit, that difference does not preclude certification
of the class. To the extent that an individual asserts damages exceeding those
recoverable by that individual in a class action, such individual may exercise its
right to opt-out of the class.
For the reasons set forth above, plaintiff’s motion to certify a class consisting
of “(1) all natural person[s] in the State of New York; (2) to whom Defendant sent a
written communication containing language materially similar to Exhibit C of the
Complaint; (3) subsequent to a request for a validation pursuant to the FDCPA; (4)
which was not returned as undelivered by the United States Postal Service; [and]
(5) during the one year immediately preceding the filing of the Complaint and
ending 21 days thereafter” is granted.
Dated: Central, Islip, New York
December 22, 2016
/s/ Denis R. Hurley
Denis R. Hurley
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