KAYMARK v. UDREN LAW OFFICES, P.C.

Filing 341

MEMORANDUM ORDER. The parties' Joint Motion for Preliminary Approval of the Settlement, (Doc. 176 ), is DENIED AS MOOT, and Plaintiffs' Renewed Motion for Default Judgment and Preliminary Approval of the Settlement Agreement, (Doc. 333 ) , is DENIED WITHOUT PREJUDICE TO REFILING. On or before 4/15/20, Plaintiffs shall file an Amended Motion, with accompanying brief, providing supplemental authority on the two issues identified by the Court. See contents of this filing. Signed by Judge Cathy Bissoon on 3/31/20. Signed by Judge Cathy Bissoon on 3/31/20. (wss)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
FREDERICK J. HILL, individually and on )
behalf of other similarly situated current
)
and former homeowners in Pennsylvania, )
)
Plaintiffs,
)
)
v.
)
)
UDREN LAW OFFICES, P.C.,
)
)
Defendant.
)

Civil Action No. 13-419
Judge Cathy Bissoon
Chief Magistrate Judge Cynthia Reed Eddy

MEMORANDUM ORDER
Pending before the Court is Plaintiffs’ Motion Renewed Motion for Default Judgment
and Preliminary Approval of the Settlement Agreement, (“Motion for Default and Approval,”
Doc. 333). Given the complicated posture of this case, additional briefing from Plaintiffs is
required before the Court can decide whether to preliminarily approve the class settlement.
Thus, the Motion for Default and Approval will be denied without prejudice to refiling.
The parties in this case originally moved for preliminary approval in August of 2018.
(Doc. 176.) The Court, desiring to evaluate the proposed settlement agreement and the issue of
attorneys’ fees concurrently, asked Magistrate Judge Eddy to mediate the issue of fees. (See Doc.
209 at 5.) Plaintiffs’ prior counsel made this impossible, (Doc. 187), and the Magistrate Judge
ordered briefing on the issue. In connection with the fees issue, Defendant’s counsel brought to
the Court’s attention troubling conduct by Plaintiffs’ counsel (Docs. 206, 207). Ultimately,
Plaintiffs’ counsel consented to being removed as class counsel. 1 (Doc. 228.)

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Attorney Malakoff’s conduct following his consent to being removed as class counsel, which
hijacked the docket in this case for several months, has already been well-documented by the
Court and will not be elaborated on further here. (See Doc. 286).
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Unfortunately, notwithstanding Plaintiffs’ counsel’s consent to being removed as class
counsel, the transition to new class counsel was not smooth as it also necessitated a change in the
representative Plaintiff. (Doc. 307.) By the time this had occurred, appeals by former class
counsel prevented the Court from taking any action with respect to approval of the proposed
settlement. The Court of Appeals for the Third Circuit only recently dismissed each of former
counsel’s appeals. (Docs. 336, 337, 338.)
While those appeals were pending, and shortly after the parties first moved for
preliminary approval, Defendant alleged insolvency, and their counsel withdrew from
representation in April of 2019. (Docs. 320, 323, 325.) Thus, when Plaintiffs filed a Second
Amended Complaint on April 12, 2019, to address the change in representative Plaintiff, (Doc.
324), Defendant did not answer or otherwise plead.
Against this background, the Court sees two outstanding issues with respect to the
Motion for Default and Approval. First, while the Court has asked Plaintiffs to provide authority
for granting a motion for default judgment in the context of a class action lawsuit (and preferably
an FDCPA lawsuit), they have not. (Doc. 332.) The Motion contains authority regarding the
undersigned’s ability to grant a default judgment more generally—something not in dispute. The
Motion does not, however, speak to the more complicated posture of the case here.
Second, and relatedly, the Class Action Fairness Act (“CAFA” or the “Act”) requires
notice under the Act be given by each Defendant participating in the proposed settlement. 28
U.S.C. § 1715(b) (“Not later than 10 days after a proposed settlement of a class action is filed in
court, each defendant that is participating in the proposed settlement shall serve upon the
appropriate State official . . . a notice of the proposed settlement . . .”). In this case, where
Defendant has acknowledged that it would not participate in this case, it is clear that Defendant

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will not be issuing such a notice. (Doc. 323-1.) Plaintiffs’ Motion for Default and Approval
does not address this issue, and without authority indicating Plaintiffs may issue the required
CAFA notice, the Court cannot grant Plaintiffs’ Motion.
In light of the above, the parties’ Joint Motion for Preliminary Approval of the
Settlement, (Doc. 176), is DENIED AS MOOT, and Plaintiffs’ Renewed Motion for Default
Judgment and Preliminary Approval of the Settlement Agreement, (Doc. 333), is DENIED
WITHOUT PREJUDICE TO REFILING. On or before April 15, 2020, Plaintiffs shall file an
Amended Motion, with accompanying brief, providing supplemental authority on the two issues
identified by the Court. All Exhibits to Plaintiffs’ Amended Motion also shall be updated.
IT IS SO ORDERED.
March 31, 2020

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

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