Michelo et al v. National Collegiate Student Loan Trust 2007-2 et al

Filing 399

ORDER: No later than May 26, 2022, plaintiffs shall submit a supplemental brief, no longer than 10 pages (double-spaced), describing with precision the class(es) they now contend the Court should certify. As to each such class, plaintiffs shall sp ecify (a) the criteria for inclusion as a class member; (b) the claims to be pursued by the class (including any temporal limitations on those claims); (c) the defendant(s) against which each such claim will be pursued; and (d) the subsection of Rul e 23(b) under which plaintiffs believe the class may be certified. A table would be helpful. If space allows, plaintiffs may also discuss the ways in which their new proposed class definition(s) overcome the challenges to certification raised by defe ndants or discussed at the argument. No later than May 26, 2022, plaintiffs shall submit a supplemental brief, no longer than 10 pages (double-spaced), stating whether they seek actual damages under the FDCPA, N.Y. GBL § 349, and/or N.Y. Jud. La w § 487 (either individually or as a class) and, if so, whether, in their view, their recoverable damages include (a) the amount of the judgments that the Trust Defendants obtained against them in state-court debt collection lawsuits; (b) the am ount (if any) that the Trust Defendants have collected against such judgments, whether by garnishment or otherwise; and/or (c) the costs (if any) incurred in responding to or resolving such collection efforts. If space allows, plaintiffs may also dis cuss the ways in which those actual damages (if sought) reflect the "concrete harm" necessary for Article III standing. Responding briefs, also limited to 10 pages (double-spaced) are due no later than June 9, 2022. There shall be no replies and further set forth in this Order. (Brief due by 5/26/2022., Responses due by 6/9/2022) (Signed by Magistrate Judge Barbara C. Moses on 5/6/2022) Filed In Associated Cases: 1:18-cv-01781-PGG-BCM, 1:18-cv-07692-PGG-BCM (rro)

Case 1:18-cv-01781-PGG-BCM Document 399 Filed 05/06/22 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KATHERINE SEAMAN, individually and on
behalf of all others similarly situated, et al.,
Plaintiffs,
-againstNATIONAL COLLEGIATE STUDENT LOAN
TRUST 2007-2, et al.,

05/06/2022
18-CV-1781 (PGG) (BCM)
ORDER

Defendants.
CHRISTINA BIFULCO, individually and on
behalf of all others similarly situated, et al.,
Plaintiffs,
-against-

18-CV-7692 (PGG) (BCM)

NATIONAL COLLEGIATE STUDENT LOAN
TRUST 2004-2, et al.,
Defendants.
BARBARA MOSES, United States Magistrate Judge.
The Court having heard oral argument on May 5, 2022 on plaintiffs' motion for class
certification (Dkt. No. 312 in Case No. 18-cv-1781) and defendants' motion to dismiss for lack
of Article III standing (Dkt. No. 371 in Case No. 18-cv-1781); and the parties having raised new
legal points and requested new or different relief during the argument, beyond the points raised
and the relief sought in their motion papers; it is hereby ORDERED as follows:
1.

No later than May 26, 2022, plaintiffs shall submit a supplemental brief, no
longer than 10 pages (double-spaced), describing with precision the class(es) they
now contend the Court should certify. As to each such class, plaintiffs shall
specify (a) the criteria for inclusion as a class member; 1 (b) the claims to be

By way of example only: (i) all persons sued in state-court debt collection lawsuits by any of
the Trust Defendants as plaintiff; (ii) all persons sued in New York state-court debt collection
lawsuits by any of the Trust Defendants as plaintiff; (iii) all persons sued and served with
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Case 1:18-cv-01781-PGG-BCM Document 399 Filed 05/06/22 Page 2 of 4

pursued by the class (including any temporal limitations on those claims); (c) the
defendant(s) against which each such claim will be pursued; and (d) the
subsection of Rule 23(b) under which plaintiffs believe the class may be certified.
A table would be helpful. If space allows, plaintiffs may also discuss the ways in
which their new proposed class definition(s) overcome the challenges to
certification raised by defendants or discussed at the argument.
2.

No later than May 26, 2022, plaintiffs shall submit a supplemental brief, no
longer than 10 pages (double-spaced), stating whether they seek actual damages
under the FDCPA, N.Y. GBL § 349, and/or N.Y. Jud. Law § 487 (either
individually or as a class) and, if so, whether, in their view, their recoverable
damages include (a) the amount of the judgments that the Trust Defendants
obtained against them in state-court debt collection lawsuits; (b) the amount (if
any) that the Trust Defendants have collected against such judgments, whether by
garnishment or otherwise; and/or (c) the costs (if any) incurred in responding to or
resolving such collection efforts. If space allows, plaintiffs may also discuss the
ways in which those actual damages (if sought) reflect the "concrete harm"
necessary for Article III standing.

3.

No later than May 26, 2022, defendants shall file a supplemental brief, no longer
than 10 pages (double-spaced), supporting their new contention that plaintiffs lack
Article III standing to pursue any of their claims under the FDCPA or N.Y. GBL
§ 349, including those set forth in ¶¶ 274(a), 274(b), 280(a), and 280(b) of the

process in New York state-court debt collection lawsuits by any of the Trust Defendants as
plaintiff; and/or (iv) all persons sued in New York state-court debt collection lawsuits in which
any of the Trust Defendants, as plaintiff, obtained a default judgment against such persons.
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Case 1:18-cv-01781-PGG-BCM Document 399 Filed 05/06/22 Page 3 of 4

Consolidated Complaint (Dkt. No. 124 in Case No. 18-cv-1781). The Court
reminds defendants that in their Notice of Motion (Dkt. No. 371 in Case No. 18cv-1781) they expressly moved to dismiss plaintiffs' claims except those asserted
on the basis of these four paragraphs, and in the appendix attached to their
moving brief (Dkt. No. 372 in Case No. 18-cv-1781), they wrote: "If Defendants’
motion to dismiss for lack of Article III standing were granted in full, the
following claims would remain: (1) FDCPA claims asserted by Plaintiffs Sandra
Tabar, Christina Bifulco, Francis Butry, and Cori Frauenhofer on the bases
asserted in Compl. ¶ 274(a) and (b), and (2) GBL claims asserted by Plaintiffs
Mary Re-Seaman, Sandra Tabar, Christina Bifulco, and Cori Frauenhofer on the
bases asserted in Compl. ¶ 280(a) and (b)." If space allows, plaintiffs may also
discuss the basis for their apparent contention that because the subject of their
motion is Article III standing, they are not bound by ordinary case management
rules rooted in fairness, including the rule that once the principal briefs are filed it
is too late to raise new arguments. See, e.g., Giuffre v. Andrew, 2022 WL 118645,
at *18 n.106 (S.D.N.Y. Jan. 12, 2022) ("As new arguments first made in a reply
brief are too late, it follows necessarily that the same is true of new arguments
first raised at oral argument.").
4.

Responding briefs, also limited to 10 pages (double-spaced) are due no later than
June 9, 2022. There shall be no replies.

5.

In accordance with Moses Ind. Prac. ¶ 2(g), the parties shall promptly deliver
paper courtesy copies of their previously-filed Rule 12(b)(1) motion papers by
hand, mail, or courier (clearly addressed to Judge Moses's chambers). Courtesy

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Case 1:18-cv-01781-PGG-BCM Document 399 Filed 05/06/22 Page 4 of 4

copies should bear the ECF header generated at the time of electronic filing and
include protruding tabs for any exhibits. Bulky materials should be neatly bound,
or placed in 3-ring binders, with appropriate dividers. Because the Declaration of
Asher Hawkins dated April 22, 2022 was filed both on the public docket and
under seal with different sets of exhibits (see Dkt. Nos. 390, 392 in Case No. 18cv-1781), plaintiffs shall provide chambers one composited copy of
Mr. Hawkins's declaration (with one complete set of exhibits thereto, including
Exhibits 1-A through 1-F, 3-A, 3-B, 3-D, and 3-G as filed on the public docket
and Exhibits 2-A through 2-D and 3-C, 3-E, and 3-F as filed under seal).
SO ORDERED.

Dated: New York, New York
May 6, 2022

________________________________
BARBARA MOSES
United States Magistrate Judge

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