Fraley v. Enhanced Recovery Company, LLC

Filing 15

ORDER DENYING TRANSFER re: pldg. ( 1 in MDL No. 2876) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 2/7/2019. Associated Cases: MDL No. 2876, CAE/2:18-cv-02606, FLS/9:18-cv-80688, INS/1:17-cv-04297, NCM/1:18-cv-00470, NYE/2:18-cv-05787, TNM/3:18-cv-00525 (SM)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: ENHANCED RECOVERY COMPANY, LLC,
FAIR DEBT COLLECTION PRACTICES ACT
(FDCPA) LITIGATION

MDL No. 2876

ORDER DENYING TRANSFER

Before the Panel: Defendant Enhanced Recovery Company, LLC, moves under 28 U.S.C.
§ 1407 to centralize pretrial proceedings in this litigation in the Eastern District of New York.1 This
litigation currently consists of six actions, each pending in a separate district, as listed on Schedule
A. In addition, the parties have notified the Panel of one related action, which was filed in the
Eastern District of New York. Plaintiffs in each of these actions allege that they received a debt
collection letter from Enhanced Recovery that identified Kohl’s Department Store, Inc., as the
creditor to which the debt was owed, rather than Capital One, N.A. Plaintiffs allege that this
misidentification violates the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq.
Plaintiffs in two actions oppose centralization, while plaintiffs in the other four actions on the motion
support centralization.
On the basis of the papers filed and the hearing session held, we conclude that centralization
will not serve the convenience of the parties and witnesses or further the just and efficient conduct
of this litigation. These actions share some factual questions arising from plaintiffs’ allegations that
Enhanced Recovery sent each of them a debt collection letter that failed to identify Capital One,
N.A., as the creditor to which the alleged debt was owed. These common factual questions, though,
are not sufficiently complex or numerous to warrant the creation of an MDL. There is no dispute
regarding the contents of these letters, only whether the Enhanced Recovery is liable under the
FDCPA for those contents. The actions on the motion also involve non-overlapping putative state
classes of consumers. Thus, there is no substantial risk of conflicting pretrial rulings, particularly
with respect to class certification.
Furthermore, only seven actions are at issue here (including the related action), at least four
of which involve common plaintiffs’ counsel. Where only a minimal number of actions are
involved, the proponent of centralization bears a heavier burden to demonstrate that centralization
is appropriate. See In re Transocean Ltd. Sec. Litig. (No. II), 753 F. Supp. 2d 1373, 1374 (J.P.M.L.
2010). To the extent there is any possibility of duplicative discovery or inconsistent pretrial rulings,
1

Enhanced Recovery initially sought centralization in the Southern District of Indiana,
where a state-wide class has been certified. After the close of briefing, Enhanced Recovery changed
its requested transferee district based on the recent dismissal in the Eastern District of New York of
a similar FDCPA complaint involving a different defendant.

-2voluntary cooperation and coordination among the parties and the involved courts seems a feasible
alternative to centralization. See, e.g., In re Eli Lilly & Co. (Cephalexin Monohydrate) Patent Litig.,
446 F. Supp. 242, 244 (J.P.M.L. 1978); see also Manual for Complex Litigation, Fourth, § 20.14
(2004).
IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

__________________________________________
Sarah S. Vance
Chair
Lewis A. Kaplan
R. David Proctor
Karen K. Caldwell

Ellen Segal Huvelle
Catherine D. Perry
Nathaniel M. Gorton

IN RE: ENHANCED RECOVERY COMPANY, LLC,
FAIR DEBT COLLECTION PRACTICES ACT
(FDCPA) LITIGATION

MDL No. 2876

SCHEDULE A

Eastern District of California
FRALEY v. ENHANCED RECOVERY COMPANY, LLC, C.A. No. 2:18-02606
Southern District of Florida
ISRAELSON v. ENHANCED RECOVERY COMPANY, C.A. No. 9:18-80688
Southern District of Indiana
RHODES v. ENHANCED RECOVERY COMPANY, LLC, C.A. No. 1:17-04297
Eastern District of New York
HULL v. ENHANCED RECOVERY COMPANY, LLC, C.A. No. 2:18-05787
Middle District of North Carolina
THIBODEAUX v. ENHANCED RECOVERY COMPANY, LLC, ET AL.,
C.A. No. 1:18-00470
Middle District of Tennessee
HARPER v. ENHANCED RECOVERY COMPANY, ET AL., C.A. No. 3:18-00525