Pritchard v. Portfolio Recovery Associates, LLC [TV3]
Filing
70
MEMORANDUM OPINION AND ORDER denying 44 Motion to Certify Class; accepting in whole 65 Report and Recommendations. In light of the Court's ruling on this matter, the Clerk of Court is DIRECTED to LIFT the stay in this ca se. Trial in this action is reset for Monday, July 17, 2017, at 9:00 a.m., and the final pretrial conference is reset for Monday, July 10, 2017, at 1:30 p.m. All deadlines set forth in the Courts scheduling order [Doc. 47] shall be calculated from the date of this order or the date of the trial, as applicable.Signed by Chief District Judge Thomas A Varlan on 7/05/2016.(KMK, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
ROBERT PRITCHARD,
Plaintiff,
v.
PORTFOLIO RECOVERY ASSOC, LLC,
Defendant.
)
)
)
)
)
)
)
)
)
No.:
3:14-CV-293-TAV-HBG
MEMORANDUM OPINION AND ORDER
This civil action is before the Court on the Report and Recommendation of
Magistrate Judge H. Bruce Guyton, entered on April 13, 2016 [Doc. 65] (the “R&R”),
which addresses Plaintiff’s Motion to Certify a Class, Appoint Plaintiff as a Class
Representative and His Counsel as Class Counsel [Doc. 44]. The parties briefed the issue
and appeared before the magistrate judge for a hearing. After considering plaintiff’s
request, Magistrate Judge Guyton recommends that the Court deny plaintiff’s motion.
Plaintiff filed objections to the R&R [Doc. 66], and defendant responded [Doc. 67]. For
the reasons that follow, plaintiff’s objections [Doc. 66] will be overruled and his motion
[Doc. 44] will be denied.
I.
Standard of Review
A court must conduct a de novo review of those portions of a magistrate judge’s
report and recommendation to which a party objects unless the objections are frivolous,
conclusive, or general. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Smith v.
Detroit Fed’n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); Mira v.
Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “Objections disputing the correctness of the
magistrate’s recommendation, but failing to specify the findings believed to be in error
are too general and therefore insufficient.” Stamtec, Inc. v. Anson, 296 Fed. App’x 516,
519 (6th Cir. 2008) (citing Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006)). In
addition, “absent compelling reasons,” parties may not “raise at the district court stage
new arguments or issues that were not presented to the magistrate.” Murr v. United
States, 200 F.3d 895, 902 n.1 (6th Cir. 2000) (citing United States v. Waters, 158 F.3d
933, 936 (6th Cir. 1998)); see also Marshall v. Chater, 75 F.3d 1421, 1426–27 (10th Cir.
1996) (“[I]ssues raised for the first time in the objections to magistrate judge’s report and
recommendation are deemed waived.”). The Court “may accept, reject, or modify, in
whole or in part, the findings or recommendations” made by the magistrate judge. 28
U.S.C. § 636(b)(1).
II.
Analysis1
Plaintiff asserts the following three objections:2 (1) a modified class definition
would cure the deficiencies on which many of the magistrate judge’s findings are based;
(2) there is no need to make individual review of contracts relating to the debts defendant
acquired because plaintiff’s allegations assume there may be a contractual right to charge
1
The Court presumes familiarity with this action and the R&R issued in this case [Doc.
65].
2
Plaintiff does not succinctly describe his objections as such, but the Court accepts
defendant’s characterization of the objections [Doc. 67 p. 4].
2
interest; and (3) plaintiff satisfied the numerosity requirement and, if not, plaintiff should
be granted access to defendant’s information so it can make such a showing.
As to the first argument, plaintiff points out that the R&R states that there are
problems with the commonality, typicality, adequacy, superiority, and predominance
requirements of certifying a class because the class definition does not include interest
[Doc. 66 p. 3]. Plaintiff does not object to any of the magistrate judge’s findings in this
regard and does not point to a single error in Magistrate Judge Guyton’s analysis or
conclusions. Rather, plaintiff proposes that the definition of the class be modified to
require that the person had interest added to the account [Id.]. Plaintiff, however, fails to
state what the new class definition would be and to explain how the new definition would
satisfy the requirements of Rule 23. Instead, plaintiff states that “if the definition needs
to be modified to require that the person had interest added to the account, then Plaintiff
proposes that the definition be modified,” and such a modification “would cure the issues
raised by the R&R in regards to commonality, typicality, adequacy, superiority[,] and
predominance” [Id. at 4].
As an initial matter, the Court notes that that plaintiff is requesting to start over
with a new class definition. Plaintiff did not present this argument before the magistrate
judge and has not suggested that there are any “compelling reasons” to justify raising this
new argument for the first time. See Murr, 200 F.3d at 902 n.1. While plaintiff notes
that he “advised the Court during oral argument that he did not object to modifying the
class definition to include a requirement of interest being reported by [defendant],”
3
plaintiff never actually requested leave to make such a modification on December 10,
2016, and did not argue before the magistrate judge that the Rule 23 requirements would
be satisfied under a modified class definition [Doc. 66 p. 3]. In fact, plaintiff emphasized
that he did not need to make any modifications to the class throughout his briefing,
including in his reply brief [Doc. 59 pp. 1, 9–10]. Furthermore, during the March 1,
2016, telephonic conference, the magistrate judge “inquired . . . if there are any requests
for leave to make additional findings,” but the parties advised that the matter was ripe for
a decision [Doc. 64]. Plaintiff has not presented a compelling reason, or any reason at all,
for the delay in requesting this modification.
Plaintiff points to the Fifth Circuit’s decision in In re Monumental Life Insurance
Co., 365 F.3d 408 (5th Cir. 2004), to support the contention that the Court should
redefine his proposed class. In Monumental Life, the Fifth Circuit noted that “[h]olding
plaintiffs to the plain language of the class definition would be overly formalistic.” Id. at
414; see also Powers v. Hamilton Cty. Pub. Defs. Comm’n, 501 F.3d 592, 659 (6th Cir.
2007) (citing In re Monumental Life Ins. Co., 365 F.3d at 414) (recognizing that “district
courts have broad discretion to modify class definitions”). However, in Monumental
Life, the plaintiffs had originally alleged and defined a proposed class, but “in their
motion for certification, plaintiffs narrowed the class.” In re Monumental Life Ins. Co.,
365 F.3d at 413. The Fifth Circuit found that holding the plaintiffs to the broader class
definition as alleged in the complaint “would be overly formalistic,” especially because
4
the “[d]efendants were provided with adequate notice and discovery by which to argue
that the narrowed class cannot be certified.” Id. at 414.
Plaintiff’s reliance on Monumental Life is misplaced. Unlike in Monumental Life,
where the plaintiffs made clear that they were narrowing the definition of the class in
their motion to certify, here, plaintiff only advocated for his new class definition in his
objections to the R&R. Id. at 413. For that reason, defendant did not have adequate
notice and discovery to argue against the narrowed class.
In addition, plaintiff merely assumes in his objections that a modification to the
definition of the class will “cure the issues raised by the R&R in regards to commonality,
typicality, adequacy, superiority[,] and predominance” [Doc. 66 p. 4]. Such a statement
is “conclusive” and constitutes the type of objection that “do[es] not warrant de novo
review.” See Mira, 806 F.2d at 637.
The magistrate judge actually contemplated a situation where interest accrual was
a prerequisite to membership in the class and determined that “[e]ven if adding interest
was an issue . . . individualized issues would dominate,” and “a decision for Plaintiff
would not necessarily resolve the issue for others,” in part because “the Court would have
to review each agreement between the original creditor and the Defendant to determine
whether adding interest was even authorized” [Doc. 65 pp. 9–10]. Plaintiff does not
address this finding. While plaintiff states that a review of each class member’s account
agreement is unnecessary, he does not explain why the magistrate judge is mistaken
about the need to review “each agreement between the original creditor and the
5
Defendant” [Id.; see also Doc. 66]. Furthermore, in the underlying briefing, defendant
addressed a situation where the class was redefined and argued that a redefined class
would not satisfy Rule 23 for many reasons—none of which plaintiff addresses in his
objections [See Doc. 53; Doc 66; Doc. 67 pp. 14–15].
While the Court has “broad discretion to modify class definitions,” the Court
declines to modify such a definition when the plaintiff first requested the Court do so
while objecting to the magistrate judge’s R&R, and when plaintiff failed to address
concerns regarding the proposed change raised by the magistrate judge and defendant.
Powers, 501 F.3d at 659. The Court, therefore, will not change the confines of the class
plaintiff seeks to certify.
As plaintiff did not address or object to the magistrate judge’s findings on the
issues with commonality, typicality, adequacy, superiority, and predominance, regarding
the previously defined class, the Court will not revisit those findings. Accordingly,
plaintiff’s first objection is overruled. Because the Court overrules the first objection, it
need not address the remaining objections as the Court’s decision on the first objection is
determinative.
III.
Conclusion
Accordingly, upon a careful and de novo review of the record and the law, the
Court finds that the recommendations contained in the R&R are correct. The plaintiff’s
objection [Doc. 66] is OVERRULED. The Court ACCEPTS in whole the R&R [Doc.
65] and incorporates it into this Memorandum Opinion and Order. The Court DENIES
6
Plaintiff’s Motion to Certify a Class, Appoint Plaintiff as a Class Representative and His
Counsel as Class Counsel [Doc. 44].
On June 23, 2016, the Court issued an Order staying this action pending a ruling
on the R&R [Doc. 69]. In light of the Court’s ruling on this matter, the Clerk of Court is
DIRECTED to LIFT the stay in this case. Trial in this action is reset for Monday, July
17, 2017, at 9:00 a.m., and the final pretrial conference is reset for Monday, July 10,
2017, at 1:30 p.m. All deadlines set forth in the Court’s scheduling order [Doc. 47] shall
be calculated from the date of this order or the date of the trial, as applicable.
IT IS SO ORDERED.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?