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

Filing 370

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 05/15/2017. 05/15/2017 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.

:
:
:
:
:
:
:
:
:

CIVIL ACTION
NO. 10-4191

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

May 15, 2017

This case arises out of a landlord-tenant relationship
that deteriorated more than seven years ago. The former tenant,
Plaintiff Mariusz Jarzyna (“Plaintiff”), brought this action on
behalf of himself and other similarly situated former tenants
against a residential management company, Defendant Home
Properties L.P. (“Home”), and a debt collection agency,
Defendant Fair Collections and Outsourcing, Inc. (“FCO”),
alleging violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, as well as certain other state
consumer protection laws. Before the Court now is Plaintiff’s
motion to certify the class. For the reasons that follow, the
Court will deny this motion.

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As the Court has stated in the past, “[t]his case,

despite the relative simplicity of its claims, has proceeded
along an unusually circuitous and contentious path.” Jarzyna v.
Home Props., L.P., 114 F. Supp. 3d 243, 248 (E.D. Pa. 2015). 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 Props., L.P., No. 10-4191, 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).
The Court therefore describes only the most recent procedural
history below.
In July 2015, the Court ruled on the parties’ motions
for summary judgment and subsequent motions for reconsideration.
Accordingly, the only liability issues that now remain for trial
are (1) Plaintiff’s claim, under the FDCPA, that certain of
FCO’s standard dunning letters lacked the requisite disclosures,
in violation of 15 U.S.C. § 1692g(a), and (2) a counterclaim for
breach of the lease agreement brought by Home against
Plaintiff.1

1

For 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
2

Now, nearly seven full years after Plaintiff filed his
initial complaint, this case has reached the class certification
stage. Plaintiff filed a supplemental motion for class
certification on April 22, 2016, ECF No. 287, which FCO opposed
on May 31, 2016, ECF No. 292. Plaintiff moves to certify 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
violation of 15 U.S.C. §§ 1692e(11) and
1692d(6).

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 and against
Defendant FCO for violations of the FDCPA on two claims: First,

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).
3

Defendant FCO failed to disclose that its calls were from a debt
collector, and its collectors failed to identify the name of the
caller when he or she left voicemail messages for Plaintiff in
violation of 15 U.S.C. §§ 1692e(11) and 1692d(6). See Pl.’s Mem.
Law at 8, ECF No. 287-1. And, second, Defendant Home improperly
charged Plaintiff an additional thirty days’ rent despite the
fact that he failed to give timely notice of his intent to
vacate his rental apartment, for which this Court held Defendant
FCO liable under 15 U.S.C. §§ 1692e(2) and (10) and 1692f(1) for
attempting to collect an amount not authorized by the agreement
creating the debt. See id. at 7.
The Court held a hearing on Plaintiff’s class
certification motion on October 17, 2016. ECF No. 395.
Subsequently, the Court granted Plaintiff leave to take limited
discovery by way of deposing four specific individuals. See ECF
No. 335. The Court further ordered the parties to submit
supplemental briefing regarding Plaintiff’s motion for class
certification. See id. The parties subsequently submitted this
briefing, ECF Nos. 355, 364, and the motion for class
certification is now ripe for disposition.

4

II.

MOTION FOR CLASS CERTIFICATION
A.

Legal Standard
A party seeking class certification must satisfy Rule

23(a) of the Federal Rules of Civil Procedure and the
requirements of one of the subsections of Rule 23(b).

See

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345-46 (2011); In
re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions,
148 F.3d 283, 309 (3d Cir. 1998).

Under Rule 23(a), Plaintiffs

must demonstrate that: (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).
“Rule 23 does not set forth a mere pleading standard,”
but instead, “[a] party seeking class certification must
affirmatively demonstrate [her] compliance with the Rule--that
is, [she] must be prepared to prove that there are in fact
sufficiently numerous parties, common questions of law or fact,
etc.”

Dukes, 564 U.S. at 350.

The Supreme Court has repeatedly

“recognized . . . that ‘sometimes it may be necessary for the
court to probe behind the pleadings before coming to rest on the
certification question,’ and that certification is proper only
5

if ‘the trial court is satisfied, after a rigorous analysis,
that the prerequisites of Rule 23(a) have been satisfied.’”2
Id. at 350-51 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.
147, 160-61 (1982)). Accordingly, “[f]actual determinations
necessary to make Rule 23 findings must be made by a
preponderance of the evidence.” In re Hydrogen Peroxide
Antitrust Litig., 552 F.3d 305, 318 (3d Cir. 2008).
“[A]n essential prerequisite of a class action, at
least with respect to actions under Rule 23(b)(3), is that the
class must be currently and readily ascertainable based on
objective criteria.” Marcus v. BMW of N. Am., LLC, 687 F.3d 583,
592–93 (3d Cir. 2012). The Third Circuit has explained that
“[t]he ascertainability requirement serves several important
objectives”:
First, it eliminates ‘serious administrative
burdens that are incongruous with the
efficiencies expected in a class action’ by
insisting on the easy identification of
class members. Second, it protects absent
class members by facilitating the ‘best
notice practicable’ under Rule 23(c)(2) in a
Rule 23(b)(3) action.

2

The Supreme Court has also recognized that
“[f]requently[,] th[is] ‘rigorous analysis’ will entail some
overlap with the merits of the plaintiff’s underlying claim.
That cannot be helped.’” Dukes, 564 U.S. at 351 (quoting
Falcon, 457 U.S. at 160); see also id. (“[C]lass determination
generally involves considerations that are enmeshed in the
factual and legal issues comprising the plaintiff’s cause of
action.” (quoting Falcon, 457 U.S. at 160)).
6

Id. at 593 (citations omitted) (quoting Sanneman v. Chrysler
Corp., 191 F.R.D. 441, 446 (E.D. Pa. Mar. 2, 2000); Fed.
Judicial Ctr., Manual for Complex Litigation § 21.222 (4th ed.
2004)).
“The ascertainability inquiry is two-fold, requiring
a plaintiff to show that: (1) the class is ‘defined with
reference to objective criteria’; and (2) there is ‘a reliable
and administratively feasible mechanism for determining whether
putative class members fall within the class definition.’” Byrd
v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015) (quoting
Carrera v. Bayer Corp., 727 F.3d 300, 355 (3d Cir. 2013)). “The
ascertainability requirement consists of nothing more than these
two inquiries. And it does not mean that a plaintiff must be
able to identify all class members at class certification-instead, a plaintiff need only show that ‘class members can be
identified.’” Id. (quoting Carrera, 727 F.3d at 308 n.2).
“If class members are impossible to identify without
extensive and individualized fact-finding or ‘mini-trials,’ then
a class action is inappropriate.” Marcus, 687 F.3d at 593. “This
is distinct from the separate requirement under Rule 23(b)(3),
that ‘questions of law or fact common to class members [must]
predominate over any questions affecting only individual members
. . . .” Grandalski v. Quest Diagnostics Inc., 767 F.3d 175, 184
(3d Cir. 2014) (alterations in original); see also Hayes v. Wal7

Mart Stores, Inc., 725 F.3d 349, 359 (3d Cir. 2013) (“[T]he
ascertainability requirement focuses on whether individuals
fitting the class definition may be identified without resort to
mini-trials, whereas the predominance requirement focuses on
whether essential elements of the class’s claims can be proven
at trial with common, as opposed to individualized, evidence.”
(citations omitted)).
In Carrera, the Third Circuit rejected using either
retailer records or class member affidavits to ascertain a class
of consumers who had purchased a certain dietary supplement in
Florida. See 727 F.3d at 308-09.

Though the Third Circuit

acknowledged that, “[d]epending on the facts of a case, retailer
records may be a perfectly acceptable method of proving class
membership,” id. at 308, it rejected use of that method on the
facts of that case because “there [wa]s no evidence that a
single purchaser of [the dietary supplement] could be identified
using records of customer membership cards or records of online
sales,” id. at 309.
By contrast, in Byrd, the Third Circuit reversed and
remanded a district court’s denial of a motion for class
certification on the basis that the class was not ascertainable.
784 F.3d at 154. In that case, the plaintiffs proposed
ascertaining the class by using retailer records that “reveal
the computers [at issue], as well as the full identity of the
8

customer who leased or purchased each of those computers.” Id.
at 169 (quoting Byrd v. Aaron’s, Inc., No. 11-101E, 2014 WL
1316055, at *5 (W.D. Pa. Mar. 31, 2014)). The plaintiffs had
already identified 895 owners and lessees of the computers at
issue, and the Third Circuit reasoned that “ensur[ing] that
[each member of the class] is actually among the 895 customers
identified by the [plaintiffs] . . . does not require a ‘minitrial,’ nor does it amount to ‘individualized fact-finding.’”
Id. at 170 (quoting Carrera, 727 F.3d at 307).
B.

Analysis
In his motion, Plaintiff relies heavily on the

assertion that Home “identified 3,274 tenants in Pennsylvania
alone who were charged the subject notice fees with a balance
tasked to FCO for collection.” Pl.’s Mem. Law at 10.
Additionally, Plaintiff argues that “there are thousands more
located in New York, New Jersey, Massachusetts, Maryland, Maine,
Florida, Illinois or Washington, D.C.” Id. at 11. According to
Plaintiff, the 3,274 tenants identified by Home during discovery
“were charged the same illegal fees as Plaintiff, with a near
identical balance (within dollars) being tasked to FCO who then
subjected each of them to the same uniform collection policies
applied as against Plaintiff,” id. at 12, and “Defendants’
sophisticated systems can easily do the same identification and

9

quantification with mere keystrokes for New York, New Jersey,
Massachusetts, Maryland, Maine, Florida, Illinois and
Washington, D.C.,” id.
FCO responds that Plaintiff’s assertions are refuted
by evidence that “[t]he MRI of Home Properties, L.P. or other
property software systems do not readily enable them to
determine the amount or number of tenants, as individual tenant
accounts, that are exclusive 30 day lease breakage fee
accounts,” and that “although Plaintiff claims that FCO can
determine what amount of fees it collected on behalf of Home, it
does not follow that FCO would be able to determine what amounts
were related to Home’s charging of 30 day notice fees, where
Home itself, in verified responses, explains that it cannot
separate out 30 day fees from other lease breakage fees.” Def.’s
Resp. at 13-14, ECF No. 292 (citation omitted). FCO also points
out that Plaintiff “does not address how he proposes to identify
those persons who not only were charged a 30 day notice that was
sent to FCO for collection, but also received telephone messages
that violated the FDCPA, an additional requirement to be a
member of the proposed class.” Id. at 14.
FCO argues specifically that the 3,274 Pennsylvania
tenants identified by Home during discovery do not necessarily
fit Plaintiff’s proposed class definition because the class

10

cannot be categorized by software in the way that Plaintiff
claims:
Home’s response to the Special Master makes clear that
the 3,274 tenants included those charged any amount
that was posted as an LBF (lease breakage fee) and
that those fees include charges for “improper notice,
early termination, and tenant least [sic] break nonpayments.” The response further explained that Home’s
software did “not readily enable them to determine the
amount or number of tenants, as individual tenant
accounts, that are exclusively a 30 day lease breakage
fee accounts. [sic] Moreover, as to FCO, the response
indicates that accounts “with LBF charges remaining
are potentially sent to FCO for collection.” This
qualification
defeats
any
plausible
showing
of
numerosity since the fact that accounts may have been
sent to FCO does not provide probative evidence of the
number, is [sic] any, of accounts with 30 day notice
fees were actually sent to FCO for collection.
Id. at 17 (second alteration in original) (citations omitted).
Plaintiff’s and FCO’s respective positions on each of
the Rule 23(a) factors are largely guided by this threshold
ascertainability question.3 Plaintiff argues that (1) the

3

Before even reaching the ascertainability issue, FCO
argues that Plaintiff’s motion should not be granted “because he
did not include the class definition set out in his motion for
certification in his Third Amended Complaint.” Def.’s Resp. at
5. FCO quotes extensively from this complaint (the “TAC”) to
support its argument that “the class claims relating to the ‘30
day notice fee’ are made against Co-Defendant Home Properties,
Inc. only and not FCO.” Id. at 7. FCO thus characterizes the
proposed class as an “impermissible expansion of the class
identified in the TAC” because it “includes, for the first time,
a putative class as to FCO regarding claims heretofore made only
on a[n] individual basis under 15 U.S.C. § 1692f(1), § 1692e(2)
and § 1692e(10).” Id. at 8. FCO does not, however, provide any
legal authority for the proposition that this purported
“expansion” is “impermissible”--and it is not clear that any
such authority exists. Cf. In re Prudential Ins. Co. Am. Sales
11

numerosity requirement is easily satisfied by the 3,274
Pennsylvania tenants identified by Home, Pl.’s Mem. Law at 10;
(2) commonality exists because each of these 3,274 tenants was
charged “the same illegal fees as Plaintiff, with a near
identical balance (within dollars) being tasked to FCO who then
subjected each of them to the same uniform collection policies
applied as against Plaintiff,” id. at 12; (3) Plaintiff’s claims
are typical of the class because each of the 3,274 identified
tenants “were charged the exact same subject notice fees with a
nearly dollar for dollar identical balance tasked to FCO for
collection,” id. at 13; and (4) Plaintiff will fairly and
adequately represent the class because his interests “are
entirely consistent with and not antagonistic to those of the
Class, since he seeks to recover damages based upon the same
pattern of conduct--interests which all Class members share,”
id. at 15. FCO, for its part, argues “it is evident that the
3,274 tenants were (1) not all charged a 30 day notice fee; (2)
that Home has not (and cannot) readily identify who was charged
a 30 day[] notice fee; and (3) that there is no information at
all as to how many of these tenants’ accounts were referred to
FCO for collection of a 30 day[] notice fee,” Def.’s Resp. at

Practice Litig. Agent Actions, 148 F.3d 283, 325-26 (3d Cir.
1998) (directly addressing and rejecting, on factual grounds
only, argument that proposed class was improperly expanded to
“exceed[] the scope of the class complaint”).
12

17, and thus Plaintiff’s reliance on this assertion regarding
3,274 identified tenants does not satisfy the numerosity,
commonality, or typicality requirements of Rule 23(a).4
Accordingly, whether the Court should certify the
class hinges almost entirely on whether Home did, in fact,
identify 3,274 tenants in Pennsylvania who were charged a 30-day
notice fee that was sent to FCO for collection.5 As evidence of
this critical fact, Plaintiff relies on Exhibits 31, 32, and 34
attached to his motion (ECF Nos. 287-14, 15, 16). None of these
documents, however, appears to identify the 3,274 tenants in the
manner Plaintiff suggests. Instead, the reference to 3,274
tenants appears in a document identified by FCO, which is Home’s

4

FCO has also challenged the fairness and adequacy of
Plaintiff’s counsel’s representation of the class (i.e., the
fourth factor for consideration under Rule 23(a)) on the basis
that “Frank Farina, Esquire, Plaintiff’s counsel, has . . .
acted as a critical witness to the class certification motion by
providing an affidavit that is principally relied upon by the
Plaintiff to support his claims of [numerosity], commonality,
and typicality.” Def.’s Resp. at 21. Because this argument and
accompanying motion to strike have been handled separately, see
ECF Nos. 293, 295, 296, 297, and 300, the Court need not wade
back into these deep waters again now.
5

Defendant FCO additionally argues, as apparently
almost an afterthought, that Plaintiff’s class definition is
overbroad as to the claims brought under the FDCPA because the
FDCPA’s one-year statute of limitations should limit those
claims to the period beginning August 19, 2009, i.e., one year
prior to the date on which Plaintiff brought this lawsuit.
Def.’s Resp. at 11. Given the Court’s “broad discretion to
control proceedings and frame issues for consideration under
Rule 23,” Hydrogen Peroxide, 552 F.3d at 310, the Court need not
concern itself with this minor issue at this juncture.
13

verified response dated December 29, 2011, to the Special
Master’s directive dated December 8, 2011:
NUMBER OF TENANTS IN COMMONWEALTH OF
CHARGED “30-DAY NOTICE” OR SIMILAR FEE

PENNSYLVANIA

3,274 individual tenant accounts in the Commonwealth
of Pennsylvania were charged a lease breakage fee from
1/1/08 through mid-December, 2011. The MRI of Home
Properties, L.P. or other property software systems do
not readily enable them to determine the amount or
number of tenants, as individual tenant accounts, that
are exclusively 30 day lease breakage fee accounts.
This fee is not a systematic fee, neither automated
[n]or automatically charged but a fee charge subject
to the individual tenant lease breaking conduct and is
charged within the discretion of the Property Manager
in response to the tenant lease breakage conduct and
circumstance.
Total charges for improper notice, early termination,
and tenant lease break non-payments, charges for 30
day or 60 day late notice or non-payment of rent
obligation identified as LBF (triggered by improper
termination notice) for the aforesaid 3,274 individual
accounts (5,360 discrete charges) is $6,203, 037.65 in
the Commonwealth of Pennsylvania from 1/1/08 through
mid-December, 2011. Adjustments, payments and other
non-collection FCO credits to the said tenant accounts
are applied first to the earliest charges of the
account and for that period are in the total amount of
$4,141,717.07,
with
an
amount
of
$2,061,720.49
remaining as outstanding, which account balance with
LBF charges remaining are potentially sent to FCO for
collection. Once sent to FCO, Home Properties, L.P. is
unable to determine what money recovered, if any, when
less than 100%, can be related to any of the aforesaid
lease break charges/fees, which are charges for the
tenants lease breaking conduct (30 day, in case of
holder tenant, or 60 day, per lease).
Def.’s Resp. Ex. A, Def. Home’s Verified Resp. to Discovery
Directives Set Forth in December 8, 2011 Interim Status Report

14

of Special Discovery Master Stephanie A. Blair at 4-5, ECF No.
292-1 (emphasis added).
As FCO points out, the above-quoted language
undermines the factual premise of Plaintiff’s motion for class
certification, i.e., that “Home has identified 3,274 tenants in
Pennsylvania alone who were charged the subject notice fees with
a balance tasked to FCO for collection.” Pl.’s Mem. Law at 10.
Instead, the document identifies 3,274 tenants who were subject
to some lease breakage fee--but not necessarily the 30-day
notice fee presently at issue in this litigation--and states
affirmatively that the computer system cannot distinguish
between tenants subject to various lease breakage fees.
Additionally, the qualifier “potentially” undermines Plaintiff’s
reliance on the 3,274 tenants for numerosity purposes because
the fact that some of those 3,274 tenants’ accounts may have
been sent to FCO for collection does not mean that they in fact
were sent to FCO for collection.
Even now, following the class certification hearing
held on October 17, 2016, and the submission of supplemental
papers from both parties attaching new depositions of four
individuals, Plaintiff has failed to identify any methodology
for ascertaining the proposed class. As in Carrera, “there is no
evidence that a single [member of the proposed class] could be
identified using records” of individual tenant accounts. See 727
15

F.3d at 309. In his papers, Plaintiff points only to Home’s
verified response identifying 3,274 tenants in Pennsylvania who
paid lease breakage fees--but FCO denies that it is possible to
determine exactly who or how many of these total 3,274 were
charged the particular 30 day notice fee that is at issue in
this litigation, let alone how many of those charged were sent
to FCO for collection.
Furthermore, Plaintiff has failed entirely to propose
a methodology for identifying those tenants “who have been
subject of [sic] FCO’s standard, common, and uniform policy not
to identify themselves as a debt collector when leaving messages
on cellular/personal phones in violation of 15 U.S.C.
§§ 1692e(11) and 1692d(6).” Pl.’s Mot. Class Cert. at 1. Even
assuming that there does exist some method by which Plaintiff
could utilize computer software to identify which former tenants
were charged the 30-day notice fee at issue in this litigation,
Plaintiff still has not shown that he could ascertain which of
those had their fees sent to FCO for collection, nor which
received non-identifying messages from FCO regarding the
collection of those fees. At no point has Plaintiff offered any
evidence or testimony indicating that FCO maintained any records
showing which fees it was calling any particular debtor to
collect. To the contrary, Mr. Farnan testified as follows:

16

Once Home Properties would have turned over
account to FCO for whatever reason, that balance
written off at Home Properties, and essentially
fee structure or payment sequence didn’t matter
that point.

any
was
the
at

We sent them, for example, $5,000 and said can you
collect on this on our behalf, on Home Properties’
behalf. They may be able to get 4,000 they may be able
to get 1,000. It didn’t matter to Home Properties the
types of fees they went after. It would just matter
what the collection was in total.
Robert Farnan Dep., Dec. 7, 2016, at 63:5-9. This limited
testimony seems to suggest, if anything, that ascertaining the
class of tenants who were contacted by FCO with non-identifying
messages would be difficult or impossible, given that FCO and
Home were both concerned only with the total bottom line.
FCO argues persuasively that determining whether any
particular tenant would fall within the class--even assuming
that tenant was charged with the 30-day notice fee--would
require “individual inquiry . . . as to whether the account was
referred to FCO and whether FCO’s files show that messages were
left on the debtor’s telephone.” Def.’s Suppl. Mem. at 6, ECF
No. 364. Additionally, “further review would also have to be
made of any recordings of messages left in order to determine if
any consumer is a member of this class.” Id. This type of
inquiry would be akin to the sort of “mini-trial” or
“individualized fact-finding” that the Third Circuit has

17

expressly prohibited in determining class ascertainability. See
Marcus, 687 F.3d at 593.
Given that Plaintiff cannot meet the threshold
requirement for class certification by showing that his proposed
class is ascertainable, i.e., that “(1) the class is defined
with reference to objective criteria; and (2) there is a
reliable and administratively feasible mechanism for determining
whether putative class members fall within the class
definition,” Byrd, 784 F.3d at 163, the Court need not proceed
to analyze other class certification requirements under Rule 23,
including numerosity, commonality, and typicality. See Byrd, 784
F.3d at 165 (“The ascertainability inquiry is narrow . . . and
is independent from the other requirements of Rule 23.”).
IV.

CONCLUSION
For the foregoing reasons, the Court will deny

Plaintiff’s motion to certify the class. An appropriate order
follows.

18