JARZYNA v. HOME PROPERTIES, L.P. et al

Filing 300

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/18/16. 8/19/16 ENTERED AND COPIES E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARIUSZ G. JARZYNA,
Plaintiff,
v.
HOME PROPERTIES, L.P., et al.,
Defendants.

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CIVIL ACTION
NO. 10-4191

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

August 18, 2016

Before the Court are Defendant Fair Collections and
Outsourcing, Inc.’s Motion to Deposit Funds into Court and Enter
Judgment in Favor of Plaintiff (ECF No. 288) and Motion to
Strike Declaration of Francis J. Farina (ECF No. 293). For the
reasons that follow, the Court will deny the motion to deposit
funds and grant the motion to strike the declaration.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of a landlord-tenant relationship

that deteriorated, causing the landlord, a residential
management company, to refer certain amounts purportedly owed to
it by its former tenant to a debt collection agency. The former
tenant, Plaintiff Mariusz Jarzyna (“Plaintiff”), brought this
action on behalf of himself and other similarly situated former

tenants against the residential management company, Home
Properties, L.P. (“Home”), and the debt collection agency, Fair
Collections and Outsourcing, Inc. (“FCO”), alleging violations
of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq., as well as certain other state consumer
protection laws.
As the Court has observed in the past, “[t]his case,
despite the relative simplicity of its claims, has proceeded
along an usually circuitous and contentious path.” Jarzyna v.
Home Properties, L.P., 114 F. Supp. 3d 243, 248 (E.D. Pa. 2015).
Now, six years after Plaintiff filed his initial Complaint, the
Court has ruled on the parties’ motions for summary judgment and
subsequent motions for reconsideration.
The factual and procedural history has been set forth
at length in other decisions issued in this case and need not be
repeated here. See Jarzyna v. Home Properties, L.P., No. 104191, 2016 WL 2623688, at *1-7 (E.D. Pa. May 6, 2016)
(describing recent procedural history); Jarzyna, 114 F. Supp. 3d
at 248-52 (setting forth the factual background and earlier
procedural history). Instead, the Court describes only the most
recent procedural history below.
After the Court’s decision on summary judgment and the
motions for reconsideration, the only liability issues that
remain for trial are Plaintiff’s FDCPA claim that certain of
2

FCO’s standard dunning letters lacked the requisite disclosures,
in violation of 15 U.S.C. § 1692g(a), and Home’s counterclaim
for Plaintiff’s alleged breach of the lease agreement. For the
purposes of assessing damages, the only claims that have been
decided in Plaintiff’s favor are Plaintiff’s FDCPA claims
against FCO with respect to FCO’s failure to identify as a debt
collector when leaving voice messages on Plaintiff’s cell phone,
in violation of §§ 1692e(11) and 1692d(6), and FCO’s attempts to
collect a debt that Plaintiff did not owe, in violation of
§§ 1692f(1), 1692e(2), and 1692e(10) (Count I).
The case has reached the class certification stage.
Plaintiff filed a supplemental motion for class certification on
April 22, 2016, ECF No. 287, which FCO has opposed, ECF No. 292.
Plaintiff moves for certification of the following class:
All persons residing in Pennsylvania, New York, New
Jersey,
Massachusetts,
Maryland,
Maine,
Florida,
Illinois and Washington, D.C.[,] who, during the
period January 1, 2008 through the date of the filing
of Plaintiff’s Third Amended Class Action Complaint on
April 8, 2013 (Doc. No. 205) (the “Class Period”):
a)

have
been
identified
and/or
readily
identifiable
by
Home
Properties,
L.P.
(“Home”) to have been assessed Thirty Day
Notice Fees by Home – and with the balance
placed with FCO for collection, in violation
of 15 U.S.C. §§ 1692f(1), 1692e(2), and
1692e(10); and

b)

who have been subject of FCO’s standard,
common, and uniform policy not to identify
themselves as a debt collector when leaving
messages on cellular/personal phones in
3

violation
1692d(6).

of

15

U.S.C.

§§

1692e(11)

and

Pl.’s Mot. Class Cert. at 1-2, ECF No. 287. Plaintiff explains
that this class definition was shaped upon the Court’s grant of
partial summary judgment in favor of Plaintiff against Defendant
FCO for violations of the FDCPA on two claims.
The Court scheduled a hearing on Plaintiff’s class
certification motion for October 17, 2016. ECF No. 296 ¶ 4.
In connection with the class certification
proceedings, FCO filed two motions.
First, FCO filed a Motion to Deposit Funds into Court
and Enter Judgment in Favor of Plaintiff, ECF No. 288, which
Plaintiff opposed, ECF No. 290. Upon the Court’s invitation,
both Plaintiff and FCO submitted supplemental letter-briefs
regarding the applicability of the Third Circuit’s recent
decision in Richardson v. Bledsoe, No. 15-2876, 2016 WL 3854216
(3d Cir. July 15, 2016), which addresses the “picking off”
exception to the mootness of a prospective class
representative’s claims. See ECF Nos. 298, 299.
Second, FCO filed a Motion to Strike the Declaration
of Frank Farina, Esquire. ECF No. 293. Mr. Farina is one of
Plaintiff’s attorneys and filed the declaration at issue in
support of Plaintiff’s motion for class certification. Plaintiff
filed a brief in opposition to the motion to strike or, in the

4

alternative, a cross-motion to substitute the Special Master’s
November 21, 2012, Final Report and Recommendation, ECF No. 190,
as adopted by the Court, ECF No. 202. ECF No. 295. Defendant
FCO, with the Court’s leave, filed a response to Plaintiff’s
cross-motion. ECF No. 297.
Because the arguments raised in these two motions will
affect the issues addressed during the class certification
hearing, the Court advised the parties that it would rule on
both motions in advance of the class certification hearing.
Accordingly, the Court will now address each motion in turn.
II.

DEFENDANT FCO’S MOTION TO DEPOSIT FUNDS INTO COURT AND
ENTER JUDGMENT IN FAVOR OF PLAINTIFF
FCO moves for the Court’s leave to deposit $1,001.00,

plus the cost of $400.00 for filing fees, into the Court in an
account payable to Plaintiff Jarzyna, pursuant to Federal Rule
of Civil Procedure 67, upon entry of judgment in favor of
Plaintiff. Def.’s Mot. Deposit Funds 1, ECF No. 288. FCO
suggests that the Court should thereafter determine Plaintiff’s
reasonable attorneys’ fees and costs, which FCO agrees (and has
adequate insurance coverage) to pay. Id. FCO explains that the
FDCPA limits an individual plaintiff’s recovery to $1,000 in
statutory damages and “the costs of the action, together with a
reasonable attorney’s fee as determined by the court.” Id.
(citing 15 U.S.C. § 1692k(a)(2)(A), (a)(3)). Although the FDCPA
5

also contemplates an award of actual damages, Plaintiff has not
alleged actual damages here. Id. at 6. Thus, according to FCO,
entry of judgment in favor of Plaintiff, combined with FCO’s
payment of the amounts outlined above, would provide Plaintiff
with complete relief and his individual claim would be moot. Id.
at 2-3.
FCO’s motion is undoubtedly inspired by the question
expressly left open by the Supreme Court’s recent decision in
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016). As FCO
notes, Campbell-Ewald held only that an unaccepted Rule 68 offer
of a judgment to a plaintiff who seeks to represent a class does
not moot the case, even if the offer of judgment would afford
the plaintiff complete relief on his individual claim. Id. at
672. Specifically, the Supreme Court held, based on basic
contract law principles, that an unaccepted offer does not
create any obligation to pay, so the plaintiff “gain[s] no
entitlement to the relief that the defendant offered.” Id. at
679. But the Court expressly did not “decide whether the result
would be different if a defendant deposits the full amount of
the plaintiff’s individual claim in an account payable to the
plaintiff, and the court enters judgment for the plaintiff in
that amount.” Id. at 672; see also id. at 685 (Alito, J.,
dissenting) (“I am heartened that the Court appears to endorse
the proposition that a plaintiff’s claim is moot once he has
6

‘received full redress’ from the defendant for the injuries he
has asserted. Today’s decision thus does not prevent a defendant
who actually pays complete relief--either directly to the
plaintiff or to a trusted intermediary--from seeking dismissal
on mootness grounds.” (internal citations omitted)). Thus, FCO
argues that it should be permitted to bring the litigation of
Plaintiff’s individual claim to a close by the entry of judgment
in his favor. Def.’s Mot. Deposit Funds 5.
Plaintiff calls Defendant FCO’s motion “a blatant
attempt to improperly short-circuit the class certification
process.” Pl.’s Opp’n 3, ECF No. 390. He does not, however, cite
to any case law suggesting that this proposed course of action
would be improper. Instead, Plaintiff attempts to revisit
arguments that he has made multiple times now concerning the
application of his security deposit to the notice fee, which
contradicts the Court’s previous holding that there is no
dispute of material fact that Plaintiff’s security deposit was
applied toward back-due rent. Id. at 4 n.4.
Nonetheless, FCO’s motion has at least three problems,
any of which provides a basis for denying the motion.
First, FCO proposes an improper use of Rule 67. Rule
67 provides, in pertinent part, that
[i]f any part of the relief sought is a money judgment
or the disposition of a sum of money or some other
deliverable thing, a party--on notice to every other
7

party and by leave of court--may deposit with the
court all or part of the money or thing, whether or
not that party claims any of it. The depositing party
must deliver to the clerk a copy of the order
permitting deposit.
Fed. R. Civ. P. 67(a). Rule 67 is a procedural device that “was
only intended to provide a place of safekeeping for disputed
funds pending resolution of a legal dispute” and, accordingly,
“may not be used to effect a legal transfer of property between
litigants.” Prudential Ins. Co. of Am. v. BMC Indus., Inc., 630
F. Supp. 1298, 1300 (S.D.N.Y. 1986); see also Browning Ferris,
Inc. v. Montgomery Cty., No. 90-3258, 1990 WL 131937, at *2
(E.D. Pa. Sept. 4, 1990) (explaining that Rule 67’s procedures
“cannot be used as a means of altering the contractual
relationships and legal duties of the parties”). “The purpose of
a deposit in court is to relieve the depositor of responsibility
for a fund in dispute, while the parties litigate their
difference with respect to the fund.” Progressive Cas. Ins. Co.
v. Drive Trademark Holdings LP, 680 F. Supp. 2d 639, 641 (D.
Del. 2010) (quoting 13 James Wm. Moore et al., Moore’s Federal
Practice § 67.02 (3d ed. 2009)). In accepting funds under Rule
67, the court “holds the deposit as trustee for the true owner
or owners until the Court determines how the funds should be
dispersed among the parties to the suit.” Qwest Corp. v.
Koppendrayer, No. 03-2942, 2004 WL 2315697, at *1 (D. Minn. Oct.
12, 2004). The decision whether to allow a Rule 67 deposit is
8

within the court’s discretion. United States v. Lenox, Nos. 889303, 89-4642, 1989 WL 143167, at *6 (E.D. Pa. Nov. 27, 1989).
Here, Defendant FCO does not allege that the funds it
wishes to deposit with the Court are subject to competing
claims, as required by Rule 67. Instead, Defendant’s aim is to
procure a settlement of Plaintiff’s individual claims, despite
Plaintiff’s earlier rejection of at least one of Defendant’s
settlements offers.
In the wake of Campbell-Ewald, defendants before a
number of other district courts have also sought to use Rule 67
deposits to compel findings of mootness. The majority of courts
to confront Rule 67 motions under such circumstances have denied
them. See Radha Giesmann, MD, P.C. v. Am. Homepatient, Inc., No.
14-1538, 2016 WL 3407815, at *3 (E.D. Mo. June 16, 2016)
(denying motion for Rule 67 deposit in advance of class
certification proceedings); Tegtmeier v. PJ Iowa, L.C., No. 15110, 2016 WL 3265711, at *11 (S.D. Iowa May 18, 2016) (same);
Bais Yaakov of Spring Valley v. Graduation Source, LLC, No. 143232, 2016 WL 872914, at *1 (S.D.N.Y. Mar. 7, 2016) (vacating
prior order permitting the defendants to deposit payment with
the court and finding that a live claim remained such that
plaintiff must be accorded a fair opportunity to show that class
certification was warranted); Bais Yaakov of Spring Valley v.
Varitronics, LLC, No. 14-5008, 2016 WL 806703, at *1 (D. Minn.
9

Mar. 1, 2016) (denying the defendant’s Rule 67 motion where
“there is no purpose to the deposit defendant seeks to make
other than to moot the case, and . . . Plaintiff has not yet had
a fair opportunity to show that class certification is
warranted”); Brady v. Basic Research, L.L.C., 312 F.R.D. 304,
306 (E.D.N.Y. 2016) (denying the defendant’s Rule 67 motion
because the deposit aimed to “moot this case [and] not to
relieve [the defendants] of the burden of administering an
asset” and because a prospective class representative with a
live claim must be given a fair opportunity to show that class
certification is warranted). But see S. Orange Chiropractic
Ctr., LLC v. Cayan LLC, No. 15-13069, 2016 WL 1441791, at *5 (D.
Mass. April 12, 2016) (concluding that an offer to deposit a
check with the court to satisfy all of the plaintiff’s
individual claims moots the individual claims); Leyse v.
Lifetime Entm’t Servs., LLC, No. 13-5794, 2016 WL 1253607, at *2
(S.D.N.Y. Mar. 17, 2016) (relying on Second Circuit precedent
allowing for the entry of judgment for the plaintiff over the
plaintiff’s objections to find that once the defendant has
provided full relief, the plaintiff has no basis to object to
entry of judgment in its favor).
Because FCO has failed to provide any reason why its
motion comports with the purpose of Rule 67--namely, that the
funds it seeks to deposit are the basis of the dispute or it
10

seeks to relieve itself of the burden of administering an
asset--the Court finds that the application of this procedural
mechanism is inappropriate.
Second, even if it were appropriate under the Federal
Rules of Civil Procedure, FCO’s proposed deposit would not
afford Plaintiff complete relief. Plaintiff’s claims would not
be moot, because, in addition to his individual claims, he has a
personal stake in the class claims proposed in his Third Amended
Complaint.
The Campbell-Ewald Court explained that “[w]hile a
class lacks independent status until certified, a would-be class
representative with a live claim of her own must be accorded a
fair opportunity to show that certification is warranted.” 136
S. Ct. at 672 (citation omitted). Relying on this language, the
Ninth Circuit--faced with the question of whether to instruct
the district court to order monetary and injunctive relief on a
prospective class representative’s individual claims, thereby
mooting them, before that litigant had an opportunity to move
for class certification--concluded that “when a defendant
consents to judgment affording complete relief on a named
plaintiff’s individual claims before certification, but fails to
offer complete relief on the plaintiff’s class claims, a court
should not enter judgment on the individual claims, over the
plaintiff’s objection, before the plaintiff has had a fair
11

opportunity to move for class certification.” Chen v. Allstate
Ins. Co., 819 F.3d 1136, 1147 (9th Cir. 2016). The Ninth Circuit
also noted that even before Campbell-Ewald, the Supreme Court
recognized that a named plaintiff has a “‘personal stake’ in
obtaining class certification.” Id. (quoting U.S. Parole Comm’n
v. Geraghty, 445 U.S. 388, 404 (1980)).
FCO asks that this entire litigation, including
Plaintiff’s individual claims and the proposed class claims, be
terminated. It points to language from Justice Kagan’s dissent
in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013),
providing that “a court has discretion to halt a lawsuit by
entering judgment for the plaintiff when the defendant
unconditionally surrenders and only the plaintiff’s obstinacy or
madness prevents her from accepting total victory.” Id. at 1536
(Kagan, J., dissenting). FCO, however, cites this provision out
of context. In her dissent in Genesis Healthcare, Justice Kagan
goes on to suggest that a named plaintiff exhibits neither
obstinacy nor madness by declining a “supposed capitulation”
that “fails to give the plaintiff all the law authorizes and she
has sought,” id., which in this case, includes the right to
pursue relief on behalf of members of a class.
The Supreme Court has recognized that the class action
device is often the only effective means of pursuing relief on
behalf of injured persons: “Where it is not economically
12

feasible to obtain relief within the traditional framework of a
multiplicity of small individual suits for damages, aggrieved
persons may be without any effective redress unless they may
employ the class action device.” Deposit Guaranty Nat’l Bank,
Jackson, Miss. v. Roper, 445 U.S. 326, 339 (1980). Thus, “a
judgment satisfying an individual claim does not give a [named]
plaintiff . . ., exercising her right to sue on behalf of other
[individuals], ‘all that [she] has . . . requested in the
complaint (i.e., relief for the class).’” Genesis Healthcare,
133 S. Ct. at 1536 (Kagan, J., dissenting) (quoting Roper, 445
U.S. at 341 (Rehnquist, J., concurring)). Because Plaintiff pled
class-wide allegations in his Third Amended Complaint and
earlier versions of the complaint and he has not yet had a
reasonable opportunity to show that class certification is
warranted through a class certification hearing, satisfaction of
his individual claims does not tender all of the relief he
requests in his complaint.
Moreover, in this case, Plaintiff’s personal stake in
class certification does not merely rest upon some abstract
“substantive” right to pursue class-wide relief. Under the
FDCPA, Plaintiff’s ability to represent a class carries with it
the prospect of a greater financial recovery than he would
otherwise obtain in an individual action. This is because the
FDCPA allows a named plaintiff to recover actual damages, see 15
13

U.S.C. § 1692k(a)(1), statutory damages, see id.
§ 1692k(a)(2)(A), as well as a pro-rata share of the entire
recovery, see id. § 1692k(a)(2)(B).1 Fry v. Hayt, Hayt & Landau,
198 F.R.D. 461, 472 (E.D. Pa. 2000). Thus, in addition to his
individual award under the FDCPA, Plaintiff stands to recover a
pro-rata share of the common fund that is generated for the
benefit of the class.

1

Section 1692k reads as follows:
(a)

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)

(2)

any actual damage sustained by such a person
as a result of such failure;
(A)

(B)

in the case of any action by an
individual, such additional damages as
the court may allow, but not exceeding
$1,000; or
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[.]

15 U.S.C. § 1692k(a).
14

Third, even if the Court was to grant FCO’s deposit
request and Plaintiff’s claims were rendered moot, Plaintiff
would still be permitted to seek class certification under the
“relation back” doctrine. See Sosna v. Iowa, 419 U.S. 393, 402
n.11 (1975) (“[W]hether the [class] certification can be said to
‘relate back’ to the filing of the complaint may depend upon the
circumstances of the particular case and especially the reality
of the claim that otherwise the issue would evade review.”). The
relation back doctrine “permits courts to relate a would-be
class representative’s (now moot) claims for relief back in time
to a point at which that plaintiff still had a personal stake in
the outcome of the litigation,” thus allowing him to “continue
to represent, or seek to represent, a class of similarly
situated persons despite no longer having a justiciable claim
for individual relief.” Richardson, 2016 WL 3854216, at *3
(citing Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51
(1991)).
In its recent decision in Richardson v. Bledsoe, the
Third Circuit reaffirmed the “picking off” exception to
mootness, which it had first recognized in Weiss v. Regal
Collections, 385 F.3d 337 (3d Cir. 2004), and which represents
one such scenario in which courts have applied the relation back
doctrine. The picking off exception to mootness bars defendants
from dodging class suits by mooting the claims of named
15

plaintiffs before they have a fair opportunity to move for class
certification. Richardson, 2016 WL 3854216, at *3. The Third
Circuit concluded that the picking off exception survived
Campbell-Ewald, even though the decision partially overruled
Weiss. Specifically, the Third Circuit held that Campbell-Ewald
overruled Weiss only with respect to the question of whether an
unaccepted offer of judgment moots a plaintiff’s claim and
therefore did not address the picking off exception. Id. at *7.
Additionally, the Third Circuit concluded that
Campbell-Ewald provides “support for the principles animating
the [picking off] exception,” because the Supreme Court noted
therein that “a would-be class representative with a live claim
of her own must be accorded a fair opportunity to show that
certification is warranted.” Id. at *8 (citing Campbell-Ewald,
136 S. Ct. at 672). The Third Circuit observed an increase in
“placeholder” motions for class certification, which are
obviously premature and lack a fully developed factual record
but are filed by plaintiffs solely to prevent defendants from
mooting the claims of would-be class representatives. Id.
Moreover, the Third Circuit found that other circuits--namely,
the Ninth, Tenth, and Eleventh--have extended the picking off
exception to “situations in which a defendant could ‘buy off’
the small individual claims of the named plaintiffs” and
“effectively ensure that claims that are too economically
16

insignificant to be brought on their own would never have their
day in court,” thereby “broadly undermin[ing] the purpose of
Rule 23 and class action litigation.” Id. at *9 (quoting Pitts
v. Terrible Herbst, Inc., 653 F.3d 1081, 1091 (9th Cir. 2011));
see also id. (discussing Stein v. Buccaneers Ltd. Partnership,
772 F.3d 698 (11th Cir. 2014), and Lucero v. Bureau of
Collection Recovery, Inc., 639 F.3d 1239 (10th Cir. 2011)).
FCO points out that application of the relation back
mechanism, as contemplated in Richardson, is discretionary. Def.
FCO’s Letter Br. at 2, ECF No. 298 (citing Richardson, 2016 WL
3854216, at *10). Particularly, where the plaintiff has
“undu[ly] delay[ed]” seeking class certification, the court
should not apply the relation back doctrine. Id. (citing
Richardson, 2016 WL 3854216, at *11). FCO suggests that
Plaintiff engaged in undue delay, because “the Court has been
burdened by Plaintiff’s multiple, serial filings,” including
multiple amendments to his complaint and motions concerning
discovery disputes that Plaintiff could have avoided. Id. at 3.
While some of the delay in this case is attributable
to Plaintiff’s conduct, a good portion of it is not. For
example, significant amounts of time passed while the Special
Master was considering numerous discovery disputes, while the
Court was deciding the parties’ cross-motions for summary
judgment, and while the case was stayed pending the Supreme
17

Court’s decision in Campbell-Ewald. Accordingly, the Court
cannot conclude that Plaintiff unduly delayed presenting the
issue of class certification to the Court.
In sum, FCO proposes an improper use of Rule 67;
Plaintiff has a personal stake in the class claims pled in the
Third Amended Complaint; and even if Plaintiff’s claims were
moot, he would be permitted to proceed to class certification
under the relation back doctrine and picking off exception. Any
one of these three reasons, standing alone, is a sufficient
basis for denying FCO’s motion to deposit funds and to enter
judgment in favor of Plaintiff. Accordingly, the Court will deny
the motion.
III. DEFENDANT FCO’S MOTION TO STRIKE DECLARATION OF FRANK
FARINA, ESQUIRE
Next, Defendant FCO moves to strike the declaration of
Frank Farina, Esquire, ECF No. 287-16, which Mr. Farina offered
in support of Plaintiff’s motion for class certification. ECF
No. 293. Mr. Farina is co-counsel for Plaintiff and the proposed
class in this matter, having entered his appearance on August 5,
2015.2 ECF No. 259. According to FCO, Mr. Farina’s declaration
purports to support Plaintiff’s contention that Home “charged
3,274 tenants $6,203,437.56 in ‘Notice Fees’ with $4,141,717.07
2

Plaintiff and the proposed class are also represented
by two other attorneys. Joseph A. O’Keefe, Esquire, is lead
counsel for Plaintiff and the proposed class.
18

taken by Home directly from tenant security deposits and another
$2,061,720.49 tasked to FCO for collection.” FCO’s Mem. Law. at
1, ECF No. 293-1 (quoting Pl.’s Mot. Class Cert. at 1, ECF No.
287).
FCO says that Mr. Farina’s declaration contains two
faults. First, the evidence that Mr. Farina supposedly reviewed
does not support his representations in the declaration. Id. at
2. Second, and more importantly, because Mr. Farina’s sworn
statement is proffered to show facts needed to support class
certification, Mr. Farina has injected himself as a fact witness
in this case. Id. at 2. According to FCO, Mr. Farina “not only
comments on discovery, but extrapolates from the discovery to
reach conclusions (albeit erroneous ones) that form the
foundation of Plaintiff’s motion for class certification.” Id.
at 7. FCO says that Rule 3.7 of the Pennsylvania Rules of
Professional Conduct prohibits an attorney from acting as a
witness in a proceeding in which the attorney is acting as an
advocate. Id. at 3. Accordingly, FCO asks the Court to strike
Mr. Farina’s declaration under its inherent authority “to enter
orders protecting the integrity of its proceedings.” Id. at 2
(quoting Republic of Philippines v. Westinghouse Elec. Corp., 43
F.3d 65, 73 n.9 (3d Cir. 1994)).
Rule 3.7 of the Pennsylvania Rules of Professional
Conduct, which was adopted by the United States District Court
19

of the Eastern District of Pennsylvania pursuant to Local Rule
83.6 and is commonly known as the witness-advocate rule,
provides as follows:
(a)

A lawyer shall not act as advocate at a trial in
which the lawyer is likely to be a necessary
witness unless:
(1)

the testimony
issue;

relates

to

an

uncontested

(2)

the testimony relates to the nature
value of legal services rendered in
case; or

and
the

(3)

disqualification of the lawyer would
substantial hardship on the client.

work

Pa. R. Prof’l Conduct 3.7(a). Commentary to Rule 3.7 states that
“[t]he tribunal has proper objection when the trier of fact may
be confused or misled by a lawyer serving as both advocate and
witness.” Id. cmt. 2.
The Third Circuit has criticized “the practice of an
attorney testifying as an expert witness for a client of his law
firm.” Universal Athletic Sales Co. v. Am. Gym, Recreational &
Athletic Equip. Corp., 546 F.2d 530, 539 (3d Cir. 1976). In
Universal Athletic Sales, a case concerning the validity of a
United States patent, the district court judge accepted, and
gave controlling weight to, the testimony of the defendants’
principal expert witness, an associate in the law firm
representing two of the defendants, despite the plaintiff’s
objection to such testimony based on “the conflict between [the
20

expert’s] association with defense counsel and his role as an
expert witness.” Id. at 538. In reviewing the weight that the
district court gave to the expert’s testimony in ruling that the
patent claims were invalid, the Third Circuit found that “the
district court committed error in failing to discount the value
of the testimony, given the interest in the litigation of the
law firm with which [the expert witness] was associated.” Id. at
537. Because there was little evidence that “the district judge,
as the sole trier of fact, scrutinized the expert testimony of
[the associate attorney] with the proper circumspection,” the
Third Circuit held that the district court should not have given
the testimony controlling weight as to patent validity. Id. at
540.
In reaching this result, the Third Circuit considered,
but did not find dispositive, an earlier version of Rule 3.7 of
the Professional Rules of Professional Conduct.3 Based on the
ethical rules, the Third Circuit advised that “[an] attorney, or
his firm, must decide whether to serve either as advocate or as
witness in a particular case,” because “the role of an advocate

3

The Universal Athletic Sales court relied on Rules DR
5-101 and 102 of Pennsylvania’s then-current Code of
Professional Responsibility, which provided that a lawyer should
refuse employment or withdraw as counsel if the “lawyer learns
or it is obvious that he or a lawyer in his firm ought to be
called as a witness on behalf of his client.” 546 F.2d at 538.
21

and of a witness are inconsistent.”4 Id. at 538. Accordingly,
because “the disciplinary rules logically apply to expert as
well as lay witnesses, the law firm should have withdrawn once
it decided that its associate would testify, or else the firm
should have found another expert.” Id.
Although the Third Circuit noted that it did “not
approve of the practice of an attorney testifying as an expert
witness for a client of his law firm,” it did not require that
the expert’s testimony be stricken altogether. Id. at 539. This
is because the Code of Professional Responsibility “does not
delineate rules of evidence but only sets forth strictures on
attorney conduct.” Id. at 539; see also id. at 539 n.23 (noting
that “[i]t would be appropriate to consider incorporating within
the body of evidentiary rules the current disciplinary norm
proscribing the testimony of a lawyer for his client”).
Ultimately, the two questions before the Court are as
follows: (1) is Mr. Farina seeking to testify as an expert
witness, and if so, (2) what is the appropriate remedy for his
conduct?

4

Under certain, limited circumstances, an attorney may
submit a declaration concerning non-adjudicative facts in a case
in which he is acting as an advocate. See, e.g., Pa. R. Prof’l
Conduct 3.7 (suggesting that a lawyer may act as an advocate at
a trial in which he is likely to be a necessary witness in
limited circumstances, including when “the testimony relates to
an uncontested issue”).
22

Plaintiff claims that “Mr. Farina is not testifying to
anything,” but rather “is merely presenting FCO’s discovery
responses to the Court and then doing simple math,” which he
claims is permitted at this stage of class certification. Pl.’s
Opp’n at 6, ECF No. 295. The Court disagrees.
First, Mr. Farina begins his declaration by pointing
to other documents containing his “background, credentials, and
qualifications” and incorporates that material into the
declaration. Farina Decl. at ¶ 1, ECF No. 287-16.
Second, he states that he was given a specified task
by Plaintiff’s counsel: “I was asked by Plaintiff’s
counsel . . . to review and compare [certain documents] to
quantify the percentage of Tenant Escrow Monies against which
Home applied its self-styled ‘Notice’ fee(s).” Id. at ¶ 2.
Third, he states that he makes his declaration “with a
reasonable degree of professional certainty.” Id. at ¶ 3.
Fourth, he offers an opinion in the form of an
“estimate.” Id. at ¶¶ 9-11. Mr. Farina declares that “Home
admits that, over 47.5 months beginning January 1, 2008 and
through December 15, 2011, $6,203,037.65 in ‘Notice’ fees were
assessed against its Pennsylvania tenants--with $4,141,717.07 of
that amount admittedly having been taken from Pennsylvania
tenants’ escrow accounts and the remaining $2,061,720.49
‘potentially’ sent to FCO for collection. This translates to
23

approximately $4,200,000 when the remaining two weeks of 2011
are factored in.” Id. at ¶ 11. He goes on to compare the
percentage and amount of security deposits held by Home
nationwide with the amount allegedly charged in notice fees,
suggesting that the average notice fees were almost identical to
the amount that Defendant Home claimed Plaintiff owed. Id.
¶¶ 13-17. This opinion appears to be offered in support of
Plaintiff’s contention that “Home’s automated systems regularly
and routinely charged Home’s tenants a ‘30 day notice fee.’”
Pl.’s Mot. Class Certification 5, ECF No. 287-1. Mr. Farina also
opines as to Home’s obligations “to account for, and return, the
tenants’ escrow under the uniform statutory law.” Farina Decl.
at ¶ 16. Accordingly, Mr. Farina’s declaration comments on
discovery and then goes even further to reach conclusions that
provide critical support to certain Rule 23(a) and (b)(3)
requirements that Plaintiff must meet in order for the court to
certify the class, including the numerosity and commonality
requirements.
And fifth, Mr. Farina signs his report as both an
attorney (“Esq.”) and a certified professional accountant
(“C.P.A.”), although it is unclear in which professional
capacity he makes the declaration. Id. at 6.
Mr. Farina’s own language in his declaration,
especially when considered in toto, invokes the requirements for
24

testimony of an expert witness under Federal Rule of Evidence
702, which requires the expert to have scientific, technical, or
other specialized knowledge that will serve helpful to the trier
of fact; base his testimony on sufficient facts or data; develop
his testimony using reliable principles and methods; and
reliably apply those principles and methods to the facts of the
case.5 Fed. R. Evid. 702.
Having determined that Mr. Farina is attempting to
take on the dual roles of expert witness and advocate, the Court
must now determine the appropriate remedy.
The Court begins with the recognition of the “deepseated belief that a district court must be permitted to protect
the integrity of its fact-finding process.” Republic of the
Philippines, 43 F.3d at 67. This is because “[o]ur legal system
will endure only so long as members of society continue to
believe that our courts endeavor to provide untainted, unbiased
forums in which justice may be found and done.” Id. at 73.
Accordingly, “district courts have broad authority to preserve
and protect their essential functions.” Id.
The presence of a lawyer for a party acting as an
expert witness in a case would surely undermine the public’s
confidence in our legal system. While the Pennsylvania Rules of
5

Mr. Farina, however, has not been identified by
Plaintiff as an expert witness in this case, as required by
Federal Rule of Civil Procedure 26(b)(4).
25

Professional Conduct are not binding authority when it comes to
federal evidence law, they inform the judgment of the Court as
to the proper conduct of the lawyers that appear before it. At
least one federal appellate court has found that a district
court does not abuse its discretion by striking an affidavit
based on the ethical rules’ policy disfavoring attorney
testimony. Whitted v. Gen. Motors Corp., 58 F.3d 1200, 1204 (7th
Cir. 1995) (affirming the district court’s striking of counsel’s
pre-trial affidavit that commented on discovery and declared
that the seat belt and owner’s manual at issue in that products
liability action lacked the appropriate warnings based on Rule
3.7 of Indiana’s rules of Professional Conduct, which is
identical to Pennsylvania’s Rule 3.7). Because the Court must
protect the integrity of the proceedings before it, Republic of
Philippines, 43 F.3d 65 at 73 & n.9, Mr. Farina’s declaration
cannot stand. Accordingly, the Court will strike Mr. Farina’s
affidavit in this case.
IV.

PLAINTIFF’S CROSS-MOTION TO SUBSTITUTE THE SPECIAL MASTER’S
FINAL REPORT AND RECOMMENDATION
Together with his opposition to FCO’s motion to

strike, Plaintiff filed a cross-motion asking the Court to
substitute the Special Master’s Final Report and Recommendation
“should the Court find Mr. Farina’s Declaration ‘out of bounds’

26

or somehow otherwise improper for certification purposes.” ECF
No. 295 at 8. Plaintiff’s request will be denied.
Although styled as a “cross-motion,” a reponsive brief
is not the appropriate vehicle to submit additional evidence in
support of a motion for class certification. In addition, it is
unclear how the Special Master’s Final Report and
Recommendation, which addresses various discovery disputes,
including Plaintiff’s allegations of spoliation by Defendant
Home and the parties’ motions for sanctions--not the substance
of the case--could provide factual support for certifying the
proposed class. Accordingly, the Court will deny Plaintiff’s
cross-motion.
V.

CONCLUSION
For the reasons discussed above, the Court will deny

FCO’s Motion to Deposit Funds into Court and Enter Judgment in
Favor of Plaintiff, grant FCO’s Motion to Strike the Declaration
of Francis J. Farina, and deny Plaintiff’s Cross-Motion to
Substitute the Special Master’s Final Report and Recommendation.
An appropriate order follows.

27