Wright v. Linebarger Goggan Blair & Sampson, LLP
Filing
145
ORDER granting 103 Motion to Certify Class. Signed by Judge Samuel H. Mays, Jr on 09/30/2012.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
BRENDA J. WRIGHT YOUNGBLOOD, on
behalf of herself and all
similarly situated persons and
entities,
Plaintiff,
v.
LINEBARGER GOOGAN BLAIR &
SAMPSON, LLP, a Texas limited
liability partnership,
Defendant.
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No.
10-2304
ORDER GRANTING CLASS CERTIFICATION
Before the Court is Plaintiff Brenda J. Wright Youngblood’s
(“Youngblood”) November 10, 2011 Motion for Class Certification.
(Mot.,
ECF
No.
103.)
Defendant
Linebarger
Googan
Blair
&
Sampson, LLP (“Linebarger”) responded on November 23, 2011, and
Youngblood replied on December 12, 2011.
Reply, ECF No. 112.)
(Resp., ECF No. 106;
For the following reasons, Youngblood’s
Motion is GRANTED.
I.
Background
Linebarger is an unincorporated legal partnership organized
under
the
Linebarger
laws
of
Texas.
specializes
in
(Am.
Compl.
collecting
¶
8,
delinquent
ECF
No.
5.)
personal
and
property taxes for its clients.
(Id. ¶ 9.)
City
hired
of
Memphis
delinquent
real
(“Memphis”)
property
taxes
from
In March 2004, the
Linebarger
Memphis
to
property
collect
owners.
(Id. ¶ 10.)
Youngblood contends that, since Linebarger entered into its
contract with Memphis, Linebarger has received $19,148,452.91.
(Linebarger’s Ledger, ECF No. 103-5.)
is the source of this dispute.
provides
that
attorneys
who
How Linebarger was paid
Tenn. Code Ann. § 67-5-2404
pursue
delinquent
taxes
may
not
receive compensation in excess of 10% of all delinquent land
taxes collected.
Tenn. Code Ann. § 67-5-2410(b) provides that a
10% penalty is imposed on parties who are sued for delinquent
taxes and that the penalty “shall be devoted to the expense of
prosecuting these suits and shall be allowed to the attorney
filing the suits as compensation for the attorney’s services.”
Youngblood contends that the two statutes, taken together, cap
the permissible attorneys’ fee at 10%, but that Linebarger has
interpreted the statutes to entitle it to a cumulative 20% fee.
(Am. Compl. ¶ 11.)
In 2009, Youngblood, a resident at 4500 Sun Valley Drive,
Memphis, Tennessee, received a Notice of Lawsuit and Delinquent
Real Property Tax Statement (the “Notice”) for property located
2
at 4500 Sun Valley Drive, Memphis, Tennessee. 1
of Lawsuit, ECF No. 103-7.)
(Id. ¶ 18; Notice
The Notice provided, in relevant
part:
Our law firm has been retained to collect delinquent
taxes owed to the City of Memphis. A lawsuit has been
filed to enforce the lien for the unpaid 2007 real
property taxes and/or special assessments owed on the
tax parcel described on the enclosed bill.
You have
been sued in the Chancery Court of Shelby, County,
Tennessee . . . [and] the original complaint is
located in the Chancery Court Clerk’s office.
PAYMENT OF YOUR 2007 TAXES WILL STOP THIS LAWSUIT:
Your property will be removed from this lawsuit as
soon as full payment is received.
DEFAULT JUDGMENT: . . . You are hereby notified to
appear and defend suit or a default judgment. You do
not need to appear in court as long as you pay your
taxes prior to the hearing date.
NOTICE OF TAX SALE: A judgment will be taken on June
5, 2009 on all unpaid accounts.
After judgment, all
properties owing delinquent 2007 taxes will be posted
as available for tax sale on the internet . . . .
DO NOT HESITATE: If you do not pay your taxes in full
by
February
28,
2009,
additional
interest
and
penalties will accrue.
(Notice.)
Although
the
Notice
listed
Lenora
S.
Wright
(“Lenora
Wright”) as the owner, she had passed away and Youngblood, her
daughter, paid the $960.33 stated in the Notice.
Dep. 70, ECF No. 103-6.)
(Youngblood
That amount included $539.87, the
1
The property was formerly owned by decedent Lenora S. Wright (“Lenora
Wright”), but upon her death the property passed to her heirs, Brenda J.
Wright Youngblood, Robert L. Wright, Jr., Christine L. Wright, Larry D.
Wright and Jacquelyn Wright Johnson.
(Mem. in Supp. of Substitution 2, ECF
No. 30-1; Youngblood Dep. 8.)
3
actual amount of delinquent tax for tax year 2007, and $107.97,
or 20% of the 2007 delinquent tax, for Linebarger.
(Am. Compl.
¶¶
No.
21-22;
After
see
also
Youngblood
removed.
Pamela
paid
the
Johnson
stated
Dep.
25,
amount,
ECF
the
tax
103-3.)
lien
was
(Youngblood Dep. 70; Am. Compl. ¶ 23.)
Youngblood alleges that her experience is not unique, and
that “in virtually all instances . . . [Linebarger] included in
the total delinquent amount an unlawful attorney’s fee.”
(Am.
Compl. ¶ 24.) She alleges that the proposed class members paid
unlawful attorneys’ fees when they paid their delinquent taxes.
(Id. ¶ 25.)
Therefore, under Tennessee law, she alleges that
Linebarger is obligated to repay its entire fee, not only the
unlawful excess.
(Id. ¶ 27.)
Youngblood sues for conversion
and unjust enrichment and seeks punitive damages.
(Am. Compl.)
Youngblood moves to certify the following proposed class
(the “Attorney Fee Class”):
Plaintiff and all similarly situated persons and
entities who owned real property that was subject to a
delinquent real property tax suit filed by Linebarger
on behalf of the City of Memphis for the tax years
2003 to the present who paid an unlawful 10% “attorney
fee” which was received by Defendant.
(Mem. to Supp. Certification 4-5, ECF No. 103-1.)
Youngblood
contends
owned
that
she
is
a
class
member
because
she
the
property that was subject to the threatened delinquent tax suit.
(Id. 5.)
Linebarger opposes certification.
4
On March 22, 2010, plaintiffs not party to this suit filed
a class action against Memphis in the Chancery Court of Shelby
County, Tennessee (the “Chancery Court Action.”).
(See Chancery
Court
Court
Compl.,
addresses
ECF
Memphis’
No.
106-1.)
potential
The
Chancery
liability
arising
Action
from
collection of allegedly unlawful fees at issue in this case.
the
On
March 22, 2011, the Court denied Linebarger’s motion to stay
this case pending the resolution of the Chancery Court Action.
(Mar. 22 Order 13-20, ECF No. 37.)
II.
Jurisdiction and Choice of Law
The Court has jurisdiction under the Class Action Fairness
Act (“CAFA”), 28 U.S.C. § 1332(d)(2).
The proposed class is
predominantly composed of residents of Memphis, Tennessee.
Compl.
¶
2.)
Linebarger
is
an
unincorporated
(Am.
partnership
organized under the laws of Texas, with its principal place of
business in Austin, Texas.
(Id.)
Youngblood has alleged that
the class is entitled to at least $8.25 million in damages.
(See Order 10, ECF No. 37.)
Jurisdiction is proper.
Linebarger contends that Youngblood lacks standing, but the
Court has concluded that she does.
117.)
(See Orders, ECF Nos. 37,
Linebarger may not raise the issue again in opposition to
a motion to certify.
“If the named plaintiffs bringing a class
action claim[] do not individually have standing to bring those
claims, the case should be dismissed prior to the certification
5
process.”
Ramirez v. STI Prepaid LLC, 644 F. Supp. 2d 496, 504
(D.N.J. 2009).
Youngblood
has
standing
because
she
property taxes and the contested fee.
paid
the
delinquent
Linebarger contends that,
because Youngblood was not named in the Notice and was not the
registered
property
(Resp. 20.)
has
owner,
she
could
not
have
been
(Youngblood Dep. 62, 69, ECF No. 103-6.)
already
decided
establishes standing.
that
payment
of
the
(Mar. 22 Order 52.)
classic form of injury[].”
injured.
The Court
attorneys’
fee
“Monetary harm is a
Danvers Motor Co. v. Ford Motor Co.,
432 F.3d 286, 298 (3d Cir. 2005).
Linebarger
contends
that
the
Court
lacks
jurisdiction
because Youngblood and the other proposed class members must
first exhaust their judicial remedies under Tenn. Code Ann. §
67-1-901(a).
(Resp. 5.)
Section 67-1-901(a) provides that:
In all cases where not otherwise provided in which an
officer, charged by law with the collection of revenue
due to the state, shall institute any proceeding or
take any steps for the collection of the sum alleged .
. . the person against whom the proceeding or step is
taken shall, if that person conceives the same to be
unjust or illegal . . . pay the revenue under protest.
Tenn. Code Ann. § 67-1-901(a).
provides
that
a
party
must
Tenn. Code Ann. § 67-1-912(b)(2)
bring
suit
against
a
county
or
municipality “within six (6) months after such payment under
protest against the county to recover such taxes that [] were
wrongfully collected.”
“The law is clear in Tennessee that, at
6
a minimum, payment under protest is a condition precedent to the
recovery
of
real
municipality.”
property
taxes
paid
to
a
county
or
a
Penking Trust v. Sullivan Cnty., 196 B.R. 389,
395 (Bankr. E.D. Tenn. 1996) (citing Hoover, Inc. v. Rutherford
Cnty., 885 S.W.2d 67 (Tenn. App. 1994)).
Linebarger
argues
that,
these
statutes,
considered
together, require parties challenging wrongful tax collections
to
bring
suit
(Resp. 5-6.)
within
six
months
of
payment
under
protest.
In Tennessee, a taxpayer seeking a tax refund from
a county must “(1) pay the tax under protest and (2) file suit
to recover the sum paid under protest within six months from
making the payment.”
COA-R3-CV,
2009
WL
Moscheo v. Polk Cnty., No. E2008-019692868754,
at
*6
(Tenn.
Ct.
App.
Sept.
interpretation
of
Tenn.
Code
Ann.
§§
2,
2009). 2
Linebarger’s
901(a) and 67-1-912(b)(2) is not well taken.
67-1-
The Court must
apply the plain meanings to statutory terms when the language is
clear and unambiguous.
900
(Tenn.
2007).
payment of taxes.
assures
the
state
The
Auto Credit v. Wimmer, 231 S.W.3d 896,
statutes
apply
only
to
the
unlawful
Requiring a party to pay taxes under protest
of
notice
that
payment
is
in
dispute.
Linebarger is not a government entity; it is a law firm being
2
Linebarger also argues that Youngblood’s suit is barred by the Tax
Injunction Act (“TIA”). (Resp. 6-7.)
The Court has already concluded that
the TIA does not bar suit. (Order 20-22, ECF No. 37.)
7
sued over its fees.
taxes
are
There is no allegation that the property
unlawful.
injunction,”
“recover[s]
but
the
“That
rather
costs
of
is
a
not
a
lawsuit
doing
request
over
business.
.
for
a
tax
how
.
Linebarger
.”
BellSouth
Telecomms., Inc. v. Farris, 542 F.3d 499, 502 (6th Cir. 2008);
see also In re Wal-Mart Stores, Inc., No. 08-8039, 2009 U.S.
App. LEXIS 29535, at *4 (7th Cir. Nov. 12, 2009) (observing that
“private
parties
do
not
have
the
power
of
Memphis hired Linebarger to collect back taxes.
taxation[.]”).
The dispute is
about what it charged to collect those taxes, not payment of the
taxes.
To the extent Linebarger contends that §§ 67-1-901(a) and
67-1-912(b)(2) bar suit, Linebarger’s defense would apply to all
proposed
That
is
class
a
common
“appropriately
process.”
members
who
did
question
answered
not
pay
of
law,
through
the
taxes
and
class
under
so
a
protest.
question
certification
In re Grand Theft Auto Video Game Consumer Litig.,
No. 06 MD 1739, 2006 U.S. Dist. LEXIS 68064, at *10 (S.D.N.Y.
Oct. 25, 2006).
In a diversity action, state substantive law governs.
R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
Erie
A federal district
court is required to apply the choice of law rules of the state
in which it sits.
Klaxon Co. v. Stentor Elec. Mfg. Co., 313
U.S. 487, 496 (1941).
“Otherwise the accident of diversity of
8
citizenship
would
constantly
disturb
equal
administration
of
justice in coordinate state and federal courts sitting side by
side.”
Id.
Where the underlying basis for CAFA jurisdiction is
diversity, the forum state’s choice of law rules apply.
See
Savedoff v. Access Group, Inc., 524 F.3d 754, 760 n.5, 762 (6th
Cir.
2008)
where
(applying
federal
forum
state’s
jurisdiction
1332(d)(2)(A)).
of
law
premised
was
choice
on
28
provisions
U.S.C.
§
Tennessee choice of law rules apply.
Youngblood’s claims are for conversion, unjust enrichment,
and punitive damages.
tort.
(See Mar. 22 Order.)
Her claims sound in
For tort claims, Tennessee follows the “most significant
relationship” rule, which provides that “the law of the state
where
the
injury
occurred
will
be
applied
unless
some
other
state has a more significant relationship to the litigation.”
Hataway
v.
McKinley,
830
S.W.2d
53,
59
(Tenn.
1992).
alleged injuries in this case occurred in Tennessee.
The
Youngblood
and Linebarger assume that Tennessee substantive law applies.
Neither
alleges
that
another
state
relationship to the litigation.
has
a
more
significant
The Court will apply Tennessee
substantive law.
III. Standard of Review
Federal Rule of Civil procedure 23 governs class actions.
To
meet
the
requirements
establish that:
of
Rule
23(a),
a
plaintiff
must
(1) the class is so numerous that joinder of
9
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.
satisfies
the
requirements
of
Rule
If a plaintiff
23(a),
she
must
also
establish that the class should be certified under Rule 23(b).
Youngblood moves for certification under Rule 23(b)(3), which
requires a finding that “questions of law or fact common to
members of the class predominate over any questions affecting
only individual members, and that a class action is superior to
other available methods for the fair and efficient adjudication
of the controversy.”
An action should not be certified “unless the resolution of
the common issues ‘will advance the litigation.’”
Alkire v.
Irving, 330 F.3d 802, 821 (6th Cir. 2003) (quoting Sprague v.
GMC,
133
determine
F.3d
388,
397
“‘whether
(6th
[the]
Cir.
1998)).
proposed
classes
The
are
court
must
sufficiently
cohesive to warrant adjudication by representation.’”
Beattie
v. CenturyTel, Inc., 511 F.3d 554, 564 (6th Cir. 2007) (quoting
Amchem
Prods.
plaintiff
v.
must
Windsor,
show
“that
521
U.S.
there
591,
are
in
632
(1997)).
fact
sufficiently
numerous parties, common questions of law or fact, etc.”
Mart
Stores,
Inc.
v.
Dukes,
131
10
S.
Ct.
2541,
The
2551
Wal(2011)
(emphasis
in
the
original).
Although
a
court
“must
resolve
factual disputes necessary to class certification, [it] ‘should
not
turn
the
class
certification
proceedings
rehearsal for the trial on the merits.’”
into
a
dress
Glazer v. Whirlpool
Corp., 678 F.3d 409, 417 (6th Cir. 2012) (quoting Messner v.
Northshore
Univ.
HealthSystem,
669
F.3d
802,
811
(7th
Cir.
2012)).
IV.
Analysis
Youngblood contends that certification is appropriate under
Rule 23(a) and (b)(3).
Linebarger contends that certification
is not appropriate because Youngblood has never had an interest
in the property.
It contends that Youngblood is not and has
never been the owner of the property, that she divested any
interest in the property by giving it to her son, and that no
delinquent
property
tax
statement
Wright, the original plaintiff.
has
named
her
or
Darrell
(Resp. 4.)
A. Rule 23(a)
1. Numerosity
Although
there
is
“no
strict
numerical
test”
for
numerosity, evidence that a class contains thousands of members
readily establishes that joinder is impracticable.
F.3d
at
30(b)(6)
418.
Pamela
witness,
Johnson
concedes
members of the class.
that
(“Johnson”),
there
could
Linebarger’s
be
(Pamela Johnson Dep. 30.)
11
Glazer, 678
Rule
thousands
of
That satisfies
the numerosity requirement.
See id. (“The evidence shows that
Whirlpool shipped thousands of Duet washers to Ohio for retail
sale.
This is sufficient to support the certification of a
class of all Ohio residents who purchased a Duet in Ohio.”);
Daffin v. Ford Motor Co., 458 F.3d 459, 552 (6th Cir. 2006)
(“Because we determine [] that Daffin is typical of thousands of
1999
and
2000
Villager
owners
who
assert
express
warranty
claims, the class satisfies the numerosity element.”); see also
Smith v. Ohio Dep’t of Rehab. & Corr., No. 2:08-CV-15, 2012 U.S.
Dist.
LEXIS
58634,
at
*11-12
(S.D.
Ohio
April
26,
2012)
(certifying a class of more than two thousand members); Siding &
Insulation Co. v Beachwood Hair Clinic, Inc., 279 F.R.D. 442,
444 (N.D. Ohio 2012) (certifying a class consisting of thousands
of individuals); Molina v. Roskam Baking Co., No. 1:09-cv-475,
2011 U.S. Dist. LEXIS 136460, at *6-7 (W.D. Mich. Nov. 29, 2011)
(certifying a class of four thousand members).
When the exact
size of the class is unknown, but “general knowledge and common
sense indicate that it is large, the numerosity requirement is
Olden v. LaFarge Corp., 203 F.R.D. 254, 269 (E.D.
satisfied.”
Mich. 2001).
Linebarger
numerosity
contends
requirement
that
Youngblood
because
there
are
cannot
satisfy
adequate
state
the
law
remedies that she and the proposed class members have failed to
exhaust.
Linebarger argues that the class should be restricted
12
to “those individuals who appropriately exhausted their state
law
remedies”
nonexistent.”
and
that,
(Resp.
so
narrowed,
10.)
The
“the
Court
class
has
[would
rejected
be]
that
argument.
Linebarger also contends that the proposed class includes
members who have delinquent tax judgments against them in the
Shelby County Chancery Court.
(Id. 10.)
Linebarger argues that
the claims of those class members are barred by res judicata,
because they should have challenged any unlawful fees before
judgment.
(Id. 12.)
When a defense of res judicata is based on a prior state
judgment, federal courts apply the law of the state in which the
judgment was rendered.
See Macy v. Hopkins Cnty. Sch. Bd. of
Educ., 484 F.3d 357, 367-68 (6th Cir. 2007) (applying Kentucky
res
judicata
analysis
to
state court judgment).
determine
the
effect
of
a
Kentucky
To assert a defense of res judicata
based on a Tennessee judgment, a defendant must show that: “(1)
a court of competent jurisdiction rendered the prior judgment,
(2) the prior judgment was final and on the merits, (3) the same
parties or their privies were involved in both proceedings, and
(4) both proceedings involved the same cause of action.”
v. Couch, 993 S.W.32d 53, 56 (Tenn. Ct. App. 1998).
Lien
There is no
dispute that the Chancery Court had jurisdiction or that the
judgments were rendered.
Default judgments are judgments on the
13
merits for purposes of res judicata.
Roberts v. Vaughn, No.
W2008-01126-COA-$3-CV, 2009 Tenn. App. LEXIS 386, at *12 (Tenn.
Ct. App. June 10, 2009).
When there is no privity, however,
there is no res judicata.
Privity
requires
“‘an
identity
of
interest,
that
mutual or successive interest to the same rights.’”
is,
a
Notredan,
LLC v. Old Rep. Exch. Facilitator Co., No. 11-2987-STA-tmp, 2012
U.S.
Dist.
LEXIS
85712,
at
*14
(W.D.
Tenn.
June
21,
2012)
(quoting State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 180
(Tenn.
Ct.
identity
App.
of
2000)).
interest
Linebarger
with
argues
Memphis
that
it
had
an
because
“Linebarger
represented the City of Memphis in the lawsuits.”
(Resp. 14.)
Legal counsel are not in privity with a client because they do
not have the same interest in the matter being litigated; they
are merely counsel for a party.
See Notredan, 2012 U.S. Dist.
LEXIS 85712, at *15-16 (attorney not in privity with client for
purposes
of
res
judicata
under
Tennessee
law);
Balk
v.
Fererstein & Smith, LLP, No. 09CV249A, 2011 U.S. Dist. LEXIS
44203,
at
*14-15
(W.D.N.Y.
Feb.
18,
2011)
(law
firm
not
in
privity with client because client’s interest was in collecting
an alleged debt, but law firm’s interest “was in providing legal
representation for [its client].”); Reyes v. Kenosian & Miele,
LLP, 619 F. Supp. 2d 796, 809 (N.D. Cal. 2008) (defendant law
firm “shared certain goals with [its] client” but did not share
14
an identity of interest with it); Foster v. D.B.S. Collection
Agency,
463
collection
This
F.
agency
conclusion
Tennessee
Supp.
law
and
is
2d
783,
798
(S.D.
Ohio
attorney
for
agency
not
consistent
that
a
with
resolution
the
of
general
2006)
in
privity).
principle
of
against
one
liability
tortfeasor does not bar suit against another.
(debt
SunTrust Bank v.
Stoner, No. 07-0397, 2009 U.S. Dist. LEXIS 32493, at *8 (E.D.
Tenn. April 24, 2009).
Linebarger was not a party to the prior
court proceedings or in privity with Memphis. Linebarger has
independent potential liability.
The claims of proposed class
members who have delinquent tax judgments against them are not
barred by res judicata.
The class is sufficiently numerous that
joinder would be impracticable.
2. Commonality
Rule 23(a) requires “questions of law or fact common to the
class.”
Commonality is established “when there is at least one
issue whose resolution will affect all or a significant number
of the putative class members.”
Powers v. Hamilton Cnty. Pub.
Defenders Comm’n, 501 F.3d 592, 619 (6th Cir. 2007).
identifies
whether
common
Tenn.
questions
Code
Ann.
§
of
law
and
fact,
67-5-2404(a)(2)(A)
Youngblood
including:
authorizes
1)
the
assessment of a 10% attorney fee in addition to the 10% fee
permitted by Tenn. Code Ann. § 67-5-2410(a)(1)(a); 2) whether §
67-5-2404(a)(2)(A)
limits
Linebarger’s
15
compensation
to
10%
of
delinquent
received
clearly
a
taxes
20%
collected;
fee;
excessive
and
or
3)
4)
whether
whether
unlawful
so
Linebarger
Linebarger’s
that,
pursuant
lawfully
fees
to
were
White
v.
McBridge, 9237 S.W.2d 796 (Tenn. 1996), Linebarger must disgorge
all of the fees received.
All of those issues are common to the
class.
Linebarger’s
responses
demonstrates
that
commonality
is
satisfied.
It argues that plaintiffs were required to pay their
delinquent
taxes
applicable
to
under
protest.
thousands
of
That
potential
is
class
a
legal
question
members,
although
not, the Court has found, an argument with merit.
legal questions affecting each proposed class member.
501 F.3d at 619.
There are
Powers,
There are common questions of law and fact.
3. Typicality
The third requirement of Rule 23(a) is that “the claims or
defenses of the representative parties are typical of the claims
or defenses of the class.”
A claim is typical “‘if it arises
from the same event . . . that gives rise to the claims of other
class members, and if [the] claims are based on the same legal
theory.’”
Molina,
2011
U.S.
Dist.
LEXIS
136460,
at
*8-9
(quoting In re Am. Med. Sys., Inc., 75 F.3d 1069, 1082 (6th Cir.
1996)).
Linebarger
argues
that
Youngblood’s
claims
are
atypical
because she is “not currently and never [has alleged] to have
16
been the registered owner of the subject property located at
4500 Sun Valley Drive.”
the
Court,
however,
attorneys’ fees.
(Def.’s Resp, 19-20.)
is
the
payment
of
The issue before
allegedly
illegal
In all material respects, Youngblood’s claim
and the claims of the proposed class members “arise[] from the
same event” and are based “on the same legal theory.”
2011 U.S. Dist. LEXIS 136460, at 8-9.
Molina,
Youngblood’s claim is
typical
4. Adequacy
A
plaintiff
must
establish
adequately represent the class.
that
she
will
fairly
Fed. R. Civ. P. 23(a)(4).
and
“The
adequacy inquiry . . . serves to uncover conflicts of interest
between named parties and the class they seek to represent.”
Windsor, 521 U.S. at 625.
The crux of this inquiry is whether
the plaintiff has the same interest and suffered the same injury
as the class.
Beattie, 511 F.3d at 562.
The court must also
determine whether “‘class counsel are qualified, experienced and
generally
Byrider,
able
228
to
F.3d
representation
conduct
709,
717
requirement
the
litigation.’”
(6th
Cir.
overlaps
2000).
with
Stout
“The
the
v.
J.D.
adequate
typicality
requirement because in the absence of typical claims, the class
representative has no incentive to pursue the claims of other
class members.”
In re American Medical Sys., 75 F.3d 1069, 1083
(6th Cir. 1996).
17
Linebarger contends that representation would be inadequate
because Youngblood was not aware of the Chancery Court Action.
(Resp. 22.)
That action has no bearing on this proceeding.
(Mar. 22 Order 19-20.)
Youngblood
seeks
to
represent
a
class
of
thousands
of
delinquent property taxpayers who paid allegedly unlawful fees.
She
paid
the
allegedly
unlawful
fees
herself
and
now
seeks
compensation.
A class representative shares the same interests
and
of
injuries
a
proposed
class
if
prosecute the interests of the class.”
(citation omitted).
since
2009
and
subsequent
she
will
“vigorously
Stout, 228 F.3d at 717
Youngblood has been involved in the case
has
assisted
Complaints.
in
revising
(Youngblood
Dep.
the
12,
original
79.)
She
and
has
testified that she understands her duty as class representative.
(Id. 11-12.)
She has confirmed her commitment to represent the
proposed class.
(Id. 78-79.)
Youngblood seeks the same goal as
the proposed class members: the return of allegedly unlawful
fees.
Youngblood will adequately represent the class.
Youngblood recommends Frank Watson, III (“Watson”), William
F.
Burns
(“Ashby”)
(“Burns”),
as
class
William
Ryan
counsel.
(“Ryan”),
“The
adequacy
and
of
Bryce
Ashby
plaintiffs’
counsel . . . is presumed in the absence of specific proof to
the contrary.”
Dist.
LEXIS
Temp. Servs. v. Am. Int’l Group, Inc., 2012 U.S.
131201,
at
*9
(D.S.C.
18
Sept.
14,
2012)
(internal
quotation omitted); see also Rugambwa v. Betten Motor Sales, 200
F.R.D. 358, 365 (W.D. Mich. 2001) (“In most instances, adequacy
is presumed in the absence of contrary evidence by the party
opposing class certification.”).
Watson and Burn have been appointed class counsel in the
Western District of Tennessee and throughout the country.
Ryan
and Ashby have been involved in complex and collective action
cases.
Linebarger
argues
that
Youngblood’s
attorneys
are
inadequate because the original complaint contained a factual
error.
An
isolated
presumption
of
error
is
adequacy.
insufficient
Class
counsel
to
are
overcome
the
experienced,
qualified, and generally able to conduct the litigation.
B. Rule 23(b)(3)
Youngblood must also establish that the proposed class is
certifiable under Rule 23(b).
She argues that the action is
maintainable under Rule 23(b)(3), which requires that “questions
of
law
or
fact
common
to
the
class
predominate
over
any
questions affecting only individual members” and that the class
action
mechanism
be
a
superior
method
to
adjudicate
the
controversy.
1. Predominance
“The
predominance
requirement
is
met
question is at the heart of the litigation.”
at 619.
if
[the]
common
Powers, 501 F.3d
“To meet the predominance requirement, a plaintiff must
19
establish
that
issues
subject
to
generalized
proof
and
applicable to the class as a whole predominate over those issues
that are subject to only individualized proof.”
Randleman v.
Fid. Nat’l Title Ins. Co., 646 F.3d 347, 352-53 (6th Cir. 2011);
see also Ham v. Swift Transp. Co., 275 F.R.D 475, 483 (W.D.
Tenn. 2011) (“[I]f the liability issue is common to the class,
common questions are held to predominate over individual ones.”)
(internal
quotations
whether
Linebarger’s
member
would
omitted).
important
have
issue,
fee
is
unique
and
the
Here,
the
excessive.
damages,
Court
central
Although
individualized
questions
routinely
more
is
the
the
issue
of
See Randleman,
“It is well established that the presence of
regarding
certification under Rule 23(b)(3).”
Courts
class
bifurcate
can
is
each
liability
damages at a later date if liability is imposed.
646 F.3d at 353.
issue
certify
classes
damages
does
not
prevent
Messner, 669 F.3d at 815.
based
on
claims
of
unjust
enrichment or conversion.
See, e.g., City of Goodlettsville v.
Priceline.com,
F.R.D.
Inc.,
267
523,
533
(M.D.
Tenn.
2010)
(certifying claims for unjust enrichment and conversion); Ham,
275 F.R.D. at 487 (certifying claim of unjust enrichment); Pfaff
v. Whole Foods Mkt. Group, No. 09-2954, 2010 U.S. Dist. LEXIS
104784, at *16-17 (N.D. Ohio Sept. 29, 2010) (certifying unjust
enrichment and other claims).
20
The
key
issue
in
this
matter
is
whether
Linebarger
violated Tennessee law by receiving a 20% fee.
has
Johnson has
conceded that “the heart of this litigation is whether or not an
attorney fee can be imposed pursuant to [Tenn. Code Ann.] § 675-2404(a)(2)(A).”
Linebarger
(Johnson Dep. 15.)
argues
that
many
potential
class
members
are
barred by res judicata and that state law bars class members
from bringing suit without first paying taxes under protest.
The Court has rejected those arguments.
Whether Linebarger’s
fees are unlawful is the predominant issue.
2. Superiority
Youngblood
contends
that
a
class
method of deciding the controversy.
the
proposed
class
members’
action
is
a
superior
The Court must consider: 1)
interests
in
individually
controlling the prosecution or defense of separate actions; 2)
the
extent
and
nature
of
any
litigation
concerning
the
controversy already begun by or against class members; 3) the
desirability of concentrating the litigation of the claims in
this forum; and 4) the likely difficulties in managing a class
action. Fed. R. Civ. P. 23(b)(3)(A-D).
The
proposed
class
members
have
little
individually controlling separate actions.
each
class
member
is
relatively
small.
interest
in
The sum at issue for
Youngblood,
for
instance, contends that the unlawful fee she paid was $107.97.
21
(Mem.
in
Supp.
particularly
given
of
Certification
that
appropriate
“class
for
members
cases
are
not
26.)
Class
involving
likely
actions
are
small
fees
such
to
file
individual
actions because the cost of litigation would dwarf any potential
recovery.”
Dist.
LEXIS
Glazer, 678 F.3d at 421; accord Pfaff, 2010 U.S.
104784,
at
*18-19
(cases
with
small
individual
claims “a paradigmatic example of a case where the class action
[is appropriate].”).
The parties contest whether the second factor, the pendency
of any related litigation, weighs for or against certification.
Linebarger contends that the Chancery Court Action involves the
same facts and issues of law.
(Resp. 27.)
It argues, and
Youngblood does not dispute, that the Chancery Court Action was
filed first.
(Id.)
The Court has already noted that the two
actions are distinct.
Chancery
Court
Action.
Linebarger is not a defendant in the
(Mar.
22
Order
19.)
Even
if
the
Chancery Court should conclude the fees are unlawful, Linebarger
would not be liable because Linebarger is not a party.
(Id. 19-
20); see also Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d
446, 459 (Tenn. 1995) (res judicata requires the same parties in
both suits).
Johnson concedes that no proposed class members
have sued Linebarger.
(Johnson Dep. 29.)
The Chancery Court
Action against a non-party does not weigh against certification.
22
The
third
superiority
and
fourth
requirement
are
elements
readily
of
Rule
satisfied.
23(b)(3)’s
Concentrating
litigation in this forum promotes judicial economy.
legal
issues
will
be
addressed
in
one
The common
proceeding,
and
all
proposed class members paid taxes and fees on real property in
the Western District of Tennessee.
Bledsoe v. Emery Worldwide
Airlines, 258 F. Supp. 2d 780, 801 (S.D. Ohio 2003).
no
difficulties
managing
the
class.
The
class
There are
members
are
readily identifiable and can be notified through mailings to the
delinquent property addresses or through newspaper publication.
See Kinder v. Northwestern Bank, 278 F.R.D. 176, 186 (W.D. Mich.
2011) (certification superior because class members were readily
identifiable through bank records); see also Ham, 275 F.R.D. at
489 (certification superior because a court would be able to
adjudicate
“thousands”
of
suits
in
a
“quicker
and
more
efficient” manner); Beard v. Dominion Homes Fin. Servs., No. 060137, 2007 U.S. Dist. LEXIS 71469, at *26 (S.D. Ohio Sept. 26,
2007) (same).
A class action is superior to other methods for
fairly and efficiently adjudicating the controversy.
C. Appointment of Class Representative
Youngblood
Class
seeks
representatives
appointment
must
interests of the class.
fairly
as
and
class
representative.
adequately
protect
the
Fed. R. Civ. P. 23(a)(4); see also id.
Advisory Note to Subdivision (g) (“Rule 23(a)(4) will continue
23
to call for scrutiny of the proposed class representative.”).
Youngblood has been diligent and active in pursuing the class
claim, has worked closely with class counsel in initiating and
prosecuting
the
(Youngblood’s
action,
Dep.
and
78-79.)
has
helped
Youngblood
interest with other class members.
counsel
investigate.
has
conflict
no
of
Youngblood is an appropriate
class representative.
D. Appointment of Class Counsel
Under Rule 23(g), class counsel must be appointed when the
court certifies a class.
Fed. R. Civ. P. 23(g)(1)(A).
In
appointing counsel the court must consider: (1) the work counsel
has done in identifying or investigating potential claims in the
action;
(2)
counsel’s
experience
in
handling
class
actions,
other complex litigation, and claims of the type asserted in the
action; (3) counsel’s knowledge of the applicable law; and (4)
resources counsel will commit to representing the class.
Id.
Watson, Burns, Ryan, and Ashby represent Youngblood.
has
experience
in
collective
actions.
Watson
has
Each
acted
as
defense and plaintiffs’ counsel in class action litigation in
courts throughout the country.
(See Watson Decl. ¶ 3.)
Burns
has been appointed class co-counsel in the Western District of
Tennessee.
(Id. ¶ 5-6.)
Burns and Watson have prosecuted class
actions against law firms for charging and collecting unlawful
fees and expenses.
(Am. Compl. ¶ 32.)
24
Ryan and Ashby have been
counsel in “a variety of complex and collective action cases.”
(Watson Decl. ¶ 7.)
Counsel have investigated the claims at
issue in this litigation.
The nature and extent of counsel’s
involvement
to
resources
in
this
they
have
putative class.”
case
already
date
“reflects
committed
to
the
substantial
representing
the
See Spurlock v. Fox, No. 3:09-cv-00756, 2012
U.S. Dist. LEXIS 59123, at *22 (M.D. Tenn. Apr. 27, 2012).
They
have handled the matter ably since its inception.
V.
Conclusion
For the foregoing reasons, Youngblood’s Motion Is GRANTED.
The Court CERTIFIES the following class:
Plaintiff and all similarly situated persons and
entities who responded to notice of a delinquent real
property tax suit filed by Linebarger Googan Blair &
Sampson, LLP on behalf of the City of Memphis for the
tax years 2003 to the present and who paid a 20% fee
that Linebarger Googan Blair & Sampson, LLP received.
The
Court
appoints
representative.
Branda
J.
Wright
Youngblood
as
the
class
After considering the factors in Fed. R. Civ.
P. 23(g), the Court appoints Frank Watson, III, William Burns,
William Ryan, and Bryce Ashby as class counsel.
So ordered this 30th day of September, 2012.
s/ Samuel H. Mays, Jr.__ ____
SAMUEL H. MAYS, JR
UNITED STATES DISTRICT JUDGE
25
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