Shular v. LVNV Funding, LLC et al

Filing 36

MEMORANDUM OPINION AND ORDER denying 28 MOTION for Class Certification. Scheduling Conference set for 2/26/2016 at 03:00 PM in Courtroom 9B before Judge Sim Lake.(Signed by Judge Sim Lake) Parties notified.(mmiller, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

MONTE L. SHULAR, On Behalf
of Himself and All Others
Similarly Situated,

§
§
§
§
§
§
§
§
§
§
§
§

Plaintiff,
V.

LVNV FUNDING LLC and
MICHAEL J. SCOTT, PC,
Defendants.

February 18, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. H-14-3053

MEMORANDUM OPINION AND ORDER

This action is brought by plaintiff, Monte L. Shular, against
defendants,

LVNV Funding LLC

("Scott"),

for violation of

statutes.

See

§

15

392.001, et seq.

u.s.c.

§

( "LVNV")
federal
1692,

et

and Michael J.
and state
seq.

debt

and Tex.

Scott,

PC

collection
Fin.

Code

Pending before the court is Plaintiff's Motion

for Class Certification (Docket Entry No. 28), in which Plaintiff
seeks certification for the following class:
All individuals subject to debt collection by LVNV
Funding, LLC between November 8, 2012, and June 1, 2015,
in connection with debt originally owned and purportedly
purchased from Conn Appliances, Inc. ("Class Period") and
transferred as a part of the November 8, 2012 assignment
and sale by and among Conn Appliances, Inc. , Sherman
Originator III, LLC, Sherman Originator, LLC and LVNV
Funding, LLC. 1

1

Motion for Class Certification, Docket Entry No. 28, p. 2.

Plaintiff

also

appointment

of

seeks
his

appointment

counsel

as

as

Class

Class

Representative

Counsel.

For

the

and

reasons

explained below the motion for class certification will be denied.
I.

Factual Allegations

Plaintiff alleges that on October 25, 2013, defendants filed
suit against him in Montgomery County,
that

LVNV

("Conn") .

had

allegedly

acquired

Texas,

from

Conn

to collect a debt
Appliances,

Inc.

Plaintiff alleges that in the Montgomery County suit

LVNV alleged that

it

was

the

owner and holder of plaintiff's

account, the account was in default, and the full amount was due to
LVNV.

Plaintiff alleges that through discovery in that suit it

became apparent that LVNV did not own the debt it was attempting to
collect and that there were numerous other individuals from whom
LVNV attempted to collect debt that LVNV did not own.
alleges

that

the

Montgomery County suit went

to

Plaintiff

trial

on the

merits, and that after hiring counsel he prevailed against LVNV.
In this action plaintiff alleges based on information and belief
that

defendants

have

filed

numerous

lawsuits

throughout

Texas

against purported creditors of Conn, and that when these lawsuits
were filed LVNV was not the assignee of the debt it was attempting
to collect.

Plaintiff brings this action for statutory and actual

damages on his own behalf and as a class action on behalf of all

-2-

others against whom defendants have attempted to collect a debt
purportedly obtained from Conn. 2
II.
Federal

Rule

of

Standard of Review

Civil

"determine by order whether
action."

Procedure
to

23

requires

certify the

Fed. R. Civ. P. 23(c) (1) (A).

courts

action as

a

to

class

Courts have wide discretion

in determining whether to certify a class, but they must exercise
that discretion within the bounds of Rule 23.

Castano v. American

Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996)

(citing Gulf Oil Co.

v. Bernard, 101 S. Ct. 2193, 2200 (1981)).

"[T]he question is not

whether the plaintiff or plaintiffs have stated a cause of action
or will prevail on the merits, but rather whether the requirements
Eisen v.

of Rule 23 are met."
2140, 2153

(1974)

Carlisle & Jacquelin,

94 S.

(quoting Miller v. Mackey International,

Ct.

Inc.,

452 F.2d 424, 427 (5th Cir. 1971)).

"An action may proceed only if

the

demonstrates

party

seeking

certification

that

all

four

requirements of Rule 23(a) are met, and that at least one of three
requirements of Rule 23(b) are met."
Co.,

360 F.3d 496,

503

(5th Cir.

Vizena v. Union Pacific R.R.

2004)

(per curiam).

See also

Gene and Gene LLC v. Biopay LLC, 541 F.3d 318, 325 (5th Cir. 2008)
(party seeking certification bears the burden of proof) .

2

Class Action Complaint for Violation of Texas Federal Debt
Collections Acts ("Class Action Complaint"), Docket Entry No. 1,
pp. 2-3 ~~ 6-17.
-3-

Under Rule
( 1)

the

class

23 (a)
is

the moving party must

so numerous

impracticable (numerosity);

that

demonstrate

joinder of

all

that:

members

is

(2) there are questions of law or fact

common to the class (commonality);

(3)

the claims or defenses of

the representative parties are typical of the claims or defenses of
the class
fairly

(typicality); and

and

(adequacy).

adequately

(4)

the representative parties will

protect

the

Fed. R. Civ. P. 23(a).

interests

the

class

See Amchem Products, Inc. v.

Windsor, 117S. Ct. 2231, 2245 (1997).
party must demonstrate that a

of

Under Rule 23(b) the moving
action is

the appropriate

vehicle through which to resolve the litigation.

Fed. R. Civ. P.

23(b).

class

See also Vizena, 360 F.3d at 503.

relevant part,

Rule 23(b)

states, in

that a class action is appropriate if the moving

party establishes the prerequisites set forth in Rule 23(a) and if:
the court finds that the questions of law or fact common
to class members predominate over any questions affecting
only individual members [(predominance)] , and that a
class action is superior to other available methods for
fairly and efficiently adjudicating the controversy
[ (superiority)] .
Fed R. Civ. P. 23 (b) (3).
In making the class certification determination courts must
undertake a rigorous analysis of Rule 23's prerequisites by probing
beyond

the

pleadings

relevant facts.
Falcon,
analysis

102 S.

to

understand

the

claims,

See General Telephone Co.
Ct.

required

2364,
by

2372
Rule

(1982).
23,
-4-

defenses,

and

of the Southwest v.

To conduct the rigorous

courts

must

address

class

certification on a claim-by-claim basis, James v. City of Dallas,
Texas, 254 F.3d 551, 563 (5th Cir. 2001), cert. denied, 122 S. Ct.
919

(2002),

and must "identify the substantive law issues which

will control the outcome of the litigation."

Castano, 84 F.3d at

741.
III.

Analysis

Plaintiff seeks certification for a class consisting of
[a] 11 individuals subject to debt collection by LVNV
Funding, LLC between November 8, 2012, and June 1, 2015,
in connection with debt originally owned and purportedly
purchased from Conn Appliances, Inc. ("Class Period") and
transferred as a part of the November 8, 2012 assignment
and sale by and among Conn Appliances, Inc. , Sherman
Originator III, LLC, Sherman Originator, LLC and LVNV
Funding, LLC. 3
Citing

the

declaration of

his

attorney,

Sammy Ford,

argues that upon applying for credit at Conn,

plaintiff

he signed a

form

contract pursuant to which Conn automatically assigned the debt to
Conn Funding II, LP. 4

Plaintiff argues that

[t] he documents purporting to show that LVNV Funding
owned [his] debt revealed that no entity ever purchased
[his] debt from Conn Funding II, LP.
Instead, Conn
Appliances sold [his] debt, along with the debt of
thousands of others to Sherman Originator III, LLC on
November 8,
2012.
On the same date,
through a
transaction by and among Sherman Originator II, LLC,
Sherman Originator, LLC, and LVNV Funding, LLC the latter
came to be the owner of the purported debt from Conn
Appliances . . . But as is clear from the transaction and
3

Motion for Class Certification, Docket Entry No. 28, p. 2.

4

Memorandum in Support of Plaintiff's Motion to Certify Class
Action ("Plaintiff's Memorandum"), Docket Entry No. 29, p. 5
(citing Declaration of Sammy Ford ("Ford Declaration"), Exhibit 2,
Docket Entry No. 29-2; Exhibit 4, Docket Entry No. 29-4~ p. 13).
-5-

the documents produced in this case thus far, there is no
record that Conn Appliances ever owned the debt in the
first place and accordingly that it could sell the debt
to anyone else.
[Plaintiff's] case went to trial on the merits and
he prevailed, after having hired counsel.
LVNV Funding, through Michael J. Scott PC, has filed
3,768 lawsuits against individuals whose debt they
purported to purchase from Conn's Appliances.
These
lawsuits have been filed in counties throughout the state
of Texas. As discovery has shown, LVNV Funding was not
the assignee of the debt it was attempting to collect. 5
Defendants

oppose

certification of

the

proposed

class

on

grounds that plaintiff has failed to satisfy the requirements of
either Rule 23(a) or Rule 23(b) . 6
A.

Elements of Plaintiff's Claims

Asserting
alleges

that

that

defendants

defendants

have

are

debt

violated

collectors,
the

Collection Practices Act ("FDCPA"), 15 U.S.C.

federal
§

plaintiff
Fair

Debt

1692, et seq., and

the Texas Debt Collection Act ("TDCA"), Tex. Fin. Code

§

392.001,

et seq., by attempting to collect a debt they did not own and were
not entitled to collect, and that defendants' actions injured him
and others similarly situated. 7

5

Id. at 6 (citing the Ford Declaration,
Entry No. 29-2.

Exhibit 2,

Docket

6

Defendants' Response in Opposition to Plaintiff's Motion for
Class Certification ("Defendants' Response"), Docket Entry No. 31;
Defendants'
Supplement to Their Response in Opposition to
Plaintiff's Motion for Class Certification ("Defendants' Supplement
to Their Response"), Docket Entry No. 35.
7

Class Action Complaint, Docket Entry No. 1, pp. 4-5
-6-

~~

29-32.

1.

Elements of a FDCPA Claim

Congress

enacted

the

FDCPA

to

eliminate

"abusive

debt

collection practices by debt collectors, to insure that those debt
collectors who refrain from abusive debt collection practices are
not competitively disadvantaged, and to promote consistent State
action

to

protect

McMurray v.

consumers

PreCollect,

(citing 15 U.S.C.

§

1692e).

970 F.2d 45,

47

designed

protect

to

Inc.,

against

687 F.3d 665,

collection
668

abuses."

(5th Cir.

2012)

See also McCartney v. First City Bank,

(5th Cir. 1992)

(recognizing that the FDCPA "is

consumers

unscrupulous debt collectors,
actually exists").

debt

who

have

been

victimized

by

regardless of whether a valid debt

The FDCPA "prohibits 'debt collector[s]' from

making false or misleading representations and from engaging in
various abusive and unfair practices."
S. Ct. 1489, 1490 (1995).

Heintz v.

Jenkins,

115

Among other things, the FDCPA prohibits

debt collectors from using

"any false,

deceptive or misleading

representation or means in connection with the collection of any
debt," 15 U.S.C.

§

1692e, including "the threat to take any action

that legally cannot be taken," 15 U.S.C. 1692e(5).
The FDCPA's definition of the term "debt collector" includes
a person "who regularly collects or attempts to collect, directly
or
§

indirectly,
1692a{6).

debts

owed

[to]

another."

15

u.s.c.

The term "debt" is defined as

any obligation or alleged obligation of a consumer to pay
money arising out of a transaction in which the money,
-7-

property, insurance, or services which are the subject of
the transaction are primarily for personal, family, or
household purposes, whether or not such obligation has
been reduced to judgment.
15

u.s.c.

§

1692a(5).

The term "consumer"

is defined as

"any

natural person obligated or allegedly obligated to pay any debt."
15 U.S.C.

§

1692 (a) (3).

The

collection of

actual

or alleged

obligations related to business or commercial debts is excluded
from

the

FDCPA' s

coverage.

See

Heintz,

(explaining that the FDCPA "limits 'debt'

115

S.

Ct.

at

14 90

to consumer debt, i.e.

debts 'arising out of . . . transaction[s]' that 'are primarily for
personal, family, or household purposes'").

Therefore, to prevail

on claims against a debt collector under the FDCPA,

a plaintiff

must show that "' (1) he has been the object of collection activity
arising from a consumer debt;

(2) the defendant is a debt collector

[as] defined by the FDCPA; and (3) the defendant has engaged in an
act

or omission prohibited by
Civil

the

Brenner American,

Inc.,

WL 1462443, at *3

(N.D. Tex. April 15,

Portfolio Recovery Associates,

Hunsinger v.

FDCPA. '"

Action No.

3:13-cv-0988-D,

2014)

SKO
2014

(quoting Browne v.

Civil Action No.

H-11-2869,

2013

WL 871966, at *4 (S.D. Tex. March 7, 2013)).
2.

Elements of a TDCA Claim

Like the FDCPA, the TDCA prohibits debt collectors from using
wrongful practices in the collection of consumer debts.
v. Oaklawn Bank, 718 S.W.2d 678, 680 (Tex. 1986)

See Brown

(" [T]he Legislature

passed the Debt Collection Act to prevent creditors from preying
-8-

upon a consumer's fears and ignorance of the law to pursue allegedly
delinquent debts.").

To maintain a cause of action under the TDCA,

a plaintiff must show that

(1) the defendant is a debt collector;

(2) the defendant committed a wrongful act in violation of the TDCA;
(3)

the

wrongful

(4)

the

plaintiff

wrongful

act.

act

was

was

committed against

injured as

Birchler

v.

a

JPMorgan

result
Chase

the
of

plaintiff;
the

Bank,

and

defendant's
Civil

Action

No. 4:14-cv-81, 2015 WL 1939438, at *5 (E.D. Tex. April 29, 2015);
O'Neill v. CitiMortgage, Inc., Civil Action No. 4:13-cv-656-0, 2014
WL 1199338, at *4 (N.D. Tex. March 24, 2014).
B.

Plaintiff Fails to Satisfy Rule 23{a)'s Requirements

1.

Plaintiff Fails to Establish Numerosity

To satisfy the numerosity requirement plaintiff must show that
"the

class

is

impracticable."

so

numerous

Fed.

R.

that

Civ.

P.

joinder
23 (a) (1).

plaintiff to satisfy the numerosity prong,

of

all

members

"In order
there must be

is

for

a

'some

evidence or reasonable estimate of the number of purported class
members."'
Tex. 2009)

Castro v.

Collecto,

(quoting James,

Inc.,

256 F.R.D.

254 F.3d at 570).

534,

537

(W.D:

"A plaintiff must

present sufficient evidence to bring the assertion of numerosity
'beyond the mere allegation that the class is too numerous to make
joinder practicable'

which,

by

itself,

is

insufficient."

Id.

(quoting Pederson v. Louisiana State University, 213 F.3d 858, 868
(5th Cir. 2000)).

A plaintiff need not show the precise number of
-9-

persons in the class to satisfy the requirement that joinder is
impracticable

if

such

a

conclusion

is

clear

from

reasonable

estimates.

See Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d

1030,

(5th Cir.

1038

1981).

Factors other than the actual or

estimated number of purported class members may be relevant to the
numerosity
class,

question,

~'

the

geographical

dispersion

of

the

the ease with which class members may be identified,

the

nature of the action, and the size of each plaintiff's claim.

Id.

See also Mertz v. Harris, 497 F. Supp. 1134, 1138 (S.D. Tex. 1980)
(probable

geographic

diversity

of

potential

plaintiffs

and

inability to readily ascertain their identities weigh heavily in
favor of finding that the numerosity requirement is satisfied) .
Citing the declaration of his counsel, Sammy Ford, plaintiff
argues that the numerosity requirement is satisfied because LVNV
purchased 33, 943

accounts

in the November 8,

2012,

transaction

pursuant to which LVNV acquired his account, and because Scott has
sued 3,768 individuals in connection with debt purportedly acquired
from Conn. 8
5.

The relevant portions of the Ford Declaration state:

Defendant Michael Scott PC produced 3,768 lawsuits
in response to Plaintiff's discovery requests
asking for all lawsuits filed on behalf of LVNV
Funding that was purportedly obtained from Conn
Appliances.

8

Plaintiff's Memorandum, Docket Entry No. 29, pp. 7-8 (citing
Ford Declaration, Exhibit 2, Docket Entry No. 29-2, ~~ 5 and 8-10;
and Exhibits 5-7, Docket Entry Nos. 29-5, 29-6, and 29-7).
-10-

7.

Attached as Exhibit 2 is a copy of the documents
produced by LVNV Funding in the underlying lawsuit
against Monte Shular.

8.

Attached as Exhibit 3 is a copy of LVNV's Response
to Plaintiff's Request for Admission.

9.

Attached as Exhibit 4 is a copy of Michael Scott
PC's
Response
to
Plaintiff's
Requests
for
Production.

10.

Attached as Exhibit 5 is a copy of documents
produced by LVNV Funding identifying all accounts
purchased in the November 8, 2012 transaction in
which it purported to purchase Monte Shular's debt. 9

Citing

Mullen v. Treasure Chest Casino,

(5th Cir.

1999),

cert.

denied,

120 S.

LLC,

Ct.

186 F.3d 620,

1169

(2000),

624

for its

decision affirming a class of 100 to 150 persons plaintiff argues
that the evidence cited in the Ford Declaration establishes that
the proposed class is so numerous that joinder of all members is
impracticable. 10
In Mullen the plaintiffs sought to certify a class consisting
of "all members of the crew of the M/V Treasure Chest Casino who
have been stricken with occupational respiratory illness caused by
or exacerbated by the defective ventilation system in place aboard
the vessel."
Corp.,

186 F.3d at 623.

706 F.2d 1384, 1386

Citing Boykin v. Georgia-Pacific

(5th Cir. 1983),

the court in Mullen

concluded that "the size of the class in this case -

100 to 150

Ford Declaration, Exhibit 2, Docket Entry No. 29-2, ~~ 5 and
7-10; and Exhibits 4-7, Docket Entry Nos. 29-4 through 29-7.
9

10

Plaintiff's Memorandum, Docket Entry No. 29, p. 8.
-11-

members

is

within

the

numerosity requirement."

range

that

generally

satisfies

the

186 F.3d at 624.

Defendants do not dispute plaintiff's assertions that 33,943
accounts were included in the November 8, 2012, transaction or that
Scott

has

sued

3,768

individuals

purportedly acquired from Conn.

in

connection

Defendants argue,

with

debt

instead, that

plaintiff has failed to satisfy the numerosity requirement because
plaintiff has failed to present any evidence showing "whether any
of the 33,942 accounts possess claims typical to Plaintiff's or
contain common contractual terms." 11

Defendants also argue that

[t]he entirety of Plaintiff's evidence of the putative
class members is contained within the Bill of Sale and
Assignment of Assets ("Bill of Sale") , Transfer of
Assignment ("Transfer") , and Schedule of Assets executed
on November 8, 2012 (Doc. 29-4) as well as the account
records produced by Defendants in response to Plaintiff's
discovery requests ("Account Records") (Doc. 29-7). The
Schedule of Assets consists of seven
(7)
pages.
Doc. 29-4 at 5-11.
The Account Records, similarly,
contain 1258 pages
[showing only]
the final four
(4) digits of the account numbers. Doc. 29-7. The only
thing that Plaintiff's evidence shows and that this Court
can glean from it is that Plaintiff's account was part of
a sale that included 33,942 other accounts.
There is
nothing to suggest that these other accounts share any of
the same attributes that allowed Plaintiff to prevail in
this original suit. It would be far too great a leap to
impute standing and commonality to these accounts simply
by dint of being included in the same bulk sale as
Plaintiff's account.
Allowing a class to be certified
based solely on the arbitrary fact of the accounts being
sold on the same date would lead to a miscarriage of
justice against Defendants. 12

11

Defendants' Response, Docket Entry No. 31, p. 7

12

Id. at 5-6

~

9.
-12-

~

13.

Missing from plaintiff's evidence is any showing of how many
if any- of the 3,768 lawsuits that Scott filed against other
individuals based on debt purportedly acquired from Conn arise from
accounts acquired in the November

8,

2012,

transaction.

Also

missing from plaintiff's evidence is any showing of what- if any
- similarity exists between the lawsuit filed against him and the
lawsuits filed against the other 3,768 other individuals except for
the fact that the underlying debt was purportedly acquired from
Conn.

Significantly, plaintiff has made no showing that any of the

other 3,768 lawsuits suffer from the same infirmity as the lawsuit
filed against him, i.e., that LVNV was not the assignee of the debt
it was attempting to collect.

Nor has plaintiff presented any

evidence showing what - if any - debt collection efforts other than
filing suit defendants directed towards him or any other potential
class members.

Moreover,

plaintiff has

failed

to present any

evidence that factors other than the actual or estimated number of
purported class members is relevant to the numerosity question,
~'

the geographical dispersion of the class, the ease with which

class members may be identified, the nature of the action, or the
size of each plaintiff's claim.

See Zeidman, 651 F.2d at 1038-1039

(discussing a number of facts other than the actual or estimated
number of purported class members

that may be relevant

to the

"numerosity question").
Plaintiff's evidence falls short of the type of evidence that
courts

find

sufficient

to

satisfy
-13-

Rule

23(a)'s

numerosity

requirement in similar debt collection cases.

For example,

in

Castro, 256 F.R.D. at 537, an FDCPA case based on allegations that
defendants wrongfully attempted to collect time-barred cellular
telephone debt, the court found that the plaintiffs satisfied the
numerosity requirement because they presented evidence showing that
the defendant sent the same collection letter to more than 500
individuals in Texas.
Here, although plaintiff has presented evidence showing that
in addition to the lawsuit filed against him, Scott has filed 3,768
lawsuits arising from debt

that LVNV purportedly acquired from

Conn, plaintiff has failed to present evidence showing how many if any - of those lawsuits arose from debt purportedly acquired in
the

November

8,

2012,

transaction

purportedly acquired plaintiff's

pursuant

account,

or

to

which

what -

if

LVNV
any -

similarities exist between the lawsuit filed against him and the
lawsuits filed against the other 3,768 individuals.
plaintiff

alleges

that

in the

lawsuit

For example,

filed against him,

LVNV

attempted to collect debt that it did not own and was not legally
entitled to

collect,

but

plaintiff

has

not

presented evidence

showing that in any of the other 3,768 lawsuits at issue,

LVNV

attempted to collect debt that it did not own and was not legally
entitled to collect.

Nor has plaintiff presented evidence showing

that defendants subjected him or any other potential class members
to any debt collection efforts other than the filing of a lawsuit.
While

plaintiff

has

presented

evidence

-14-

capable

of

supporting

allegations that the lawsuit filed against him violated the FDCPA
and the TDCA, plaintiff has failed to present evidence showing that
any of the other lawsuits filed by Scott either violated the FDCPA
or the TDCA,
lawsuit

or violated these statutes in the same way as the

filed against him.

Plaintiff has

therefore

failed to

present evidence sufficient to bring the assertion of numerosity
"beyond the mere allegation that the class is too numerous to make
joinder practicable, which,
256 F.R.D. at 537.

by itself,

is insufficient," Castro,

Accordingly, the court concludes that plaintiff

has failed to satisfy Rule 23(a) 's numerosity requirement.
2.

Plaintiff Fails to Establish Commonality

To satisfy the commonality requirement plaintiff must show
that there are questions of law or fact common to the class.
R. Civ. P. 23 (a) (2)

Fed.

See Castro, 256 F.R.D. at 537 (citing James,

254 F.3d at 570).

See also Stewart v. Winter, 669 F.2d 328, 335

(5th Cir. 1982)

(holding that Rule 23 (a) (2) requires "that there be

at

issue

least

one

significant

number

whose
of

the

resolution
putative

will
class

affect

all

members").

or

a

This

requirement is not demanding and is satisfied if the resolution of
at least one issue will affect all or a significant number of class
members.
570).

Castro,

256 F.R.D.

at 537

(citing James,

254 F.3d at

The presence of some plaintiffs having different claims or

claims that require some individualized analysis does not defeat
commonality.

Id.
-15-

Asserting that

"each individual in the proposed class had

their account purchased in a
2012," 13 and that

single transaction on November 8,

"approximately 10% of

those

individuals were

subsequently sued by LVNV Funding using the services of Michael
Scott, PC," 14 plaintiff argues that "a single question is common to
all of these individuals - did Conn Appliances own the debt that it
purported to sell and that LVNV Funding purported to attempt to
collect." 15

Citing Castro, 256 F.R.D. at 534, plaintiff argues that

Rule 23 (a)'s commonality requirement is satisfied because "[c] ourts
have frequently found that cases under the Federal Debt Collection
Act are prime candidates for class certification." 16
Castro was an FDCPA suit brought by a debtor-plaintiff against
debt collectors.

Plaintiff alleged that the defendants sent the

same letter that he had received to other individuals, and that the
letter

attempted

to

collect

time-barred

cellular

phone

Castro, 256 F.R.D. at 540.
Defendants admitted they sent the letter Plaintiff
received to more than 500 individuals in Texas. However,
Defendants claimed they lack[ed] sufficient information
to admit or deny that the letter was sent to individuals
regarding the collection of a cellular telephone debt or
that the debts were delinquent for more than two years
prior to mailing the letters.

13

Plaintiff's Memorandum, Docket Entry No. 29, p. 8.

14

Id.

lsid.
16

Id.

-16-

debt.

Id.

Defendants argued that commonality could not be established

because issues such as whether the proposed members had not paid
their outstanding charges, whether the debt was "delinquent" within
the meaning of the proposed class definition, and when such debt
became "delinquent" under each individual contract would require
the court to examine each putative class member's circumstances on
a

case-by-case

basis.

Id.

at

541.

Plaintiff

argued

that

defendants' general policy of sending potential class members the
same letter that plaintiff received in an attempt to collect timebarred debt established commonality under a standard that is "not
demanding."

Id.

Plaintiff argued that "[e]ach class member was

treated identically in an identically, allegedly illegal way."

Id.

Plaintiff also argued that resolving the issues the defendants had
raised

was

ministerial

in

nature

and

required

extracting information from the telephone bills.
found

that

requirement

the
by

plaintiff

satisfied

demonstrating

the

Rule

existence

no
Id.

23(a) 's
of

a

more

than

The court
commonality
common

fact

question regarding whether the defendant had mailed a letter to
potential class members relating to the collection of a time-barred
cellular telephone debt that violated the FDCPA, and that resolving
that issue would not have required individualized analyses of each
class member's circumstances.

Id.

In this case defendants argue that plaintiff has failed to
satisfy Rule 23(a) 's commonality requirement because

-17-

6.
Plaintiff must show each class member
suffered the same injury - but he cannot do this without
first establishing standing and then establishing each
class member entered into a contract containing the same
language as that contained in Plaintiff's contract in
order to establish them suffering the same alleged
injury.
7.
Plaintiff brings this action under the .
. FDCPA
and the .
TDCA.
While Plaintiff proposes the
commonality issue is relatively easily satisfied
whether Conn Appliances owned the debt it purported to
sell and that LVNV Funding purported to attempt to
collect - whether or not the class members have standing
and whether or not they entered into a contract
containing the same language as Plaintiff's can only be
analyzed on an individual basis.
8.
Further, the FDCPA contains a one -year
statute of limitations on any actions to enforce
liability under the Act. 15 U.S.C. § 1692k(d). In order
to make a determination about the standing of each class
member, the Court will be forced to engage in an
investigation of each individual class member's debt to
determine whether it arises from a transaction for
personal, family or household use, and whether the action
is brought within the one-year statute of limitations.
This would cause the case to "degenerate in practice into
multiple lawsuits separately tried." Castano[, 84 F.3d
at 745 n.19] .
This is not efficient and would cause
undue delay. 17
Defendants argue that in an FDCPA case such as this
Plaintiff must establish the class members have standing
in that they meet the definition of "consumer" under the
FDCPA and .
TDCA and the "debt" is an obligation
"arising out of a transaction in which the money,
property, insurance or services .
. are primarily for
personal, family, or household purposes." . . . 15 U.S. C.
§
16 9 2 a ( 5 ) ;
Tex .
Fin.
Code
Ann .
§
3 9 2 . 0 0 1 (2 ) .
Plaintiff's brief glosses over this simply citing the
Castro case that FDCPA cases are prime candidates for
certification without ever asserting any evidence to meet
the threshold question of standing.
In an attempt to

17

Defendants' Response, Docket Entry No. 31, pp. 4-5
-18-

~~

6-8.

establish standing and the class, Plaintiff attaches an
affidavit to his Motion (Doc. 29-1) and a list of each
account contained in the debt portfolio with individuals'
name[s],
account number[s],
date[s]
of birth and
address[es]
(Doc.
29-7).
Neither of these items
provide[s] the court evidence as to the primary purpose
of each class member's debt. 18
Citing an unpublished case from the Middle District of Florida,
Riffle v. Convergent Outsourcing,

Inc. and LVNV Funding LLC, Case

No. 6:14-cv-1181-0rl-22KRS, (M.D. Fla. November 2, 2015), defendants
argue that
plaintiff needs to make a threshold showing that the
debts in question arose out of transactions entered for
personal,
family or household purposes,
and only
suggesting this information can be ascertained through
the defendants' records is not sufficient to establish
such a requirement - "the plaintiff must also establish
that the records are in fact useful for identification
purposes, and that identification will be administratively feasible." 19
Although defendants seem to be confusing the concepts of standing
and ascertainability, the court agrees that plaintiff has failed to
present evidence satisfying Rule 23(a) 's commonality requirement.
Standing is a jurisdictional requirement that focuses on the
party seeking to invoke federal court jurisdiction.
F.3d at 562.

See James, 254

"If the litigant fails to establish standing, he or

she may not seek relief on behalf of himself or herself or any
other

member

of

the

18

class."

Defendants' Supplement
No. 35, pp. 2-3 ~ 3.
19

Id. at 1-2

~

Id.

to

at

Their

563

Response,

2 (quoting Riffle at p. 5).
-19-

(citing

O'Shea

Docket

v.

Entry

Littleton,

94 S.

Ct.

669,

676

(1974)).

The Supreme Court has

recognized three requirements of Article III standing
It is by now well settled that "the irreducible
constitutional minimum of standing contains three
elements.
First, the plaintiff must have suffered an
'injury in fact' -- an invasion of a legally protected
interest that is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical.
Second, there must be a causal connection between the
injury and the conduct complained of . . . Third, it must
be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision."
United States v. Hays, 115 S. Ct. 2431, 2435 (1995)
v.

Defenders of Wildlife,

112 S.

Ct.

2130,

(quoting Lujan

2136-2137

(1992)).

"Even though the certification inquiry is more straightforward,
[courts]

must decide standing first,

because it determines the

court's fundamental power even to hear the suit."
Ayerst Laboratories,

283 F.3d 315,

319

Rivera v. Wyeth-

(5th Cir.

2002)

(citing

Steel Co. v. Citizens for a Better Environment, 118 S. Ct. 1003,
1012

(1998))

See also Bertulli v.

Independent Association of

Continental Pilots, 242 F.3d 290, 294 (5th Cir. 2001)

("Standing is

an inherent prerequisite to the class certification inquiry.").
Defendants do not argue that plaintiff does not have standing
to

recover under

consumer;

only

the

that

FDCPA and
plaintiff

the
has

TDCA because
failed

to

he

present

is

not

a

evidence

showing that the absent class members have standing because they
are consumers.

This argument has no merit because "the propriety

of awarding classwide relief .

does not require a demonstration

that some or all of the unnamed class could themselves satisfy the
-20-

standing requirements for named plaintiffs."
S. Ct. 2174, 2201 (1996)

(Souter, J.,

Lewis v. Casey, 116

joined by Ginsburg, J., and

Breyer, J., concurring in part, dissenting in part, and concurring
in judgment) .
"Unnamed plaintiffs need not make any individual showing
of standing [in order to obtain relief] , because the
standing issue focuses on whether the plaintiff is
properly before the court, not whether represented
parties or absent class members are properly before the
court.
Whether or not the named plaintiff who meets
individual standing requirements may assert the rights of
absent class members is neither a standing issue nor an
Article III case or controversy issue but depends rather
on meeting the prerequisites of Rule 23 governing class
actions."
Id. at 2201-2202.
("As

long

as

See also 7B Wright & Miller

the

representative

parties

§

have

1785.1, at 141
a

direct

and

substantial interest, they have standing; the question whether they
may be allowed to present claims on behalf of others who have
similar, but not identical, interests depends not on standing, but
on an assessment of typicality and adequacy of representation.").
While plaintiff need not show that absent class members have
standing, "[t]he existence of an ascertainable class of persons to
be represented by the proposed class representative is an implied
prerequisite of Federal Rule of Civil Procedure 23[a] ."
National Security Fire and Casualty Co.,
Cir. 2007)

501 F.3d 443,

John v.
445

(5th

(citing inter alia DeBremaecker v. Short, 433 F.2d 733,

734 (5th Cir. 1970)

("It is elementary that in order to maintain a

class action, the class sought to be represented must be adequately
defined

and

clearly

ascertainable.")
-21-

"Where

it

is

facially

apparent from the pleadings that there is no ascertainable class,
a

district

pleadings."
be

court
Id.

may

dismiss

the

class

allegation

on

the

"An identifiable class exists if its members can

ascertained

by

(ascertainability) ."

reference

criteria

Conrad v. General Motors Acceptance Corp.,

283 F. R. D. 326, 328 (N.D. Tex. 2012)
Liability Litigation,

objective

to

(citing In re Vioxx Products

2008 WL 4681368,

at *9

(E.D.

La.

2008)).

Defendants' arguments that plaintiff must make a threshold showing
that absent class members are consumers as defined by the FDCPA
does not raise the issue of standing but,

instead,

the issue of

ascertainability.
In

this

putative

class

defendants violated the

action

plaintiff

FDCPA and the TDCA,

alleges

two statutes

that
that

require plaintiff to establish that the debt at issue is consumer
debt, meaning an obligation arising out of a transaction in which
the

money,

property,

insurance

or

services

personal, family, or household purposes.

are

primarily

for

See 15 U.S.C. § 1692a(5)

(defining "debt" to mean "any obligation or alleged obligation of
a consumer to pay money arising out of a transaction in which the
money, property,

insurance, or services which are the subject of

the transaction are primarily for personal,

family,

or household

purposes;" Tex. Fin. Code§ 392.001(2) (defining "consumer debt" to
mean

"an

personal,

obligation,
family,

or

or

an

alleged

household

purposes

transaction or alleged transaction")
-22-

obligation,
and

primarily

arising

from

for
a

Plaintiff's attachment of

records

obtained

support

of

his

in

discovery

motion

for

to

the

class

memorandum

certification

submitted
suggests

in

that

identification of putative class members can be ascertained through
review of these records which are said to document LVNV's purchase
of 33,943 Conn accounts on November 8, 2012.

Defendants argue that

class certification should be denied because plaintiff fails to
demonstrate that any of these records contain information from
which the court could determine the primary purpose of each class
member's debt.
Plaintiff has not replied to defendants'
class

certification

by

filing

a

reply

arguments against

either

to

Defendants'

Response in Opposition to his motion for class certification filed
on October 1, 2015, or to Defendants' Supplement to Their Response
in Opposition to

his

November 16, 2015.

motion

for

class

certification filed

on

The court has reviewed the records of LVNV's

November 8, 2012, purchase attached to Plaintiff's Memorandum in
support of his motion for class certification,
information

useful

for

determining

the

and has found no

nature

of

the

debt

attributed either to plaintiff or to any of the putative class
members.

Accordingly,

the

court

concludes

that plaintiff has

failed to present any evidence showing that an identifiable class
can be ascertained by reference to objective criteria, or that an
identifiable class even exists.
Nor

has

plaintiff

Conrad, 283 F.R.D. at 328.

presented

any

evidence

that

other

individuals sued by Scott executed the same form contract that
-23-

plaintiff

executed,

or

had

a

lawsuit

filed

against

them

by

defendants in an attempt to collect debt that LVNV did not own and
was not entitled to collect.

The facts of this case and the facts

at issue in Castro are therefore distinguishable.
court

concluded

requirement

that

because

plaintiff
the

had

plaintiff's

satisfied
evidence

In Castro the
the

commonality

showed

that

the

defendants had sent the same letter attempting to collect cellular
telephone debt to more than 500 individuals, and that the issue of
whether the letter violated the FDCPA was an issue common to all
potential class members.

Because plaintiff in this case has not

presented

that

any

evidence

defendants

subjected

any

other

individuals to the same debt collection practices to which he was
subjected precludes the court from concluding that plaintiff has
satisfied Rule 23(a) 's commonality requirement.
3.

Plaintiff Fails to Establish Typicality

The typicality requirement of Fed.
satisfied where

"the

claims

or defenses

R.
of

Civ.
the

P.

23 (a) (3)

representative

parties are typical of the claims or defenses of the class."
R. Civ. P. 23(a) (3).

The Fifth Circuit has stated that

the test for typicality is not demanding. It focuses on
the similarity between the named plaintiffs' legal and
remedial theories and the theories of those whom they
purport to represent.
Typicality does not require a
complete identity of claims.
Rather, the critical
inquiry is whether the class representative's claims have
the same essential characteristics of those of the
putative class.
If the claims arise from a similar
course of conduct and share the same legal theory,
factual differences will not defeat typicality.
-24-

is

Fed.

Stirman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir. 2002)
James, 254 F.3d at 571).

(quoting

The typicality requirement protects class

members from representation by a party who is preoccupied with a
claim or defense that is applicable only to himself.

See Warren v.

Reserve Fund, Inc., 728 F.2d 741, 747 (5th Cir. 1984).
Plaintiff argues that his claims are typical of the claims of
the absent class members because he and "all members of this class
would have been forced to pay LVNV Funding on a debt that the
latter did not in fact own. " 20

Defendants argue:

11. Plaintiff's argument for typicality amounts to a few
conclusory statements that lack evidentiary support.
[T]here is nothing in Plaintiff's evidence that shows the
other accounts that were part of the November 8, 2012
sale shared any of the same contractual elements that
allowed Plaintiff to prevail on his lawsuit.
Plaintiff
was not successful in his underlying suit because his
account was part of this particular sale[, i.e., the
November 8, 2012, sale] ; Plaintiff prevailed based on the
language that was included in his contract. In order to
determine whether Plaintiff's claims are typical of the
other accounts in this sale, the Court would have to
conduct a detailed examination of the contractual
language contained in each of the 33,942 other accounts.
12. Plaintiff has produced no evidence to suggest, much
less establish, that any of the 33,942 contracts entered
into by the class members contains language and terms
similar to that which allowed [him] to prevail on his
suit.
Because the evidence is utterly inconclusive on
whether Plaintiff's claims are typical of the claims of
the class members, this Court must deny certification. 21
Plaintiff complains that LVNV purchased accounts from Conn on
November 8,

2012,

and that although his account was purportedly

20

Plaintiff's Memorandum, Docket Entry No. 29, p. 9.

21

Defendants' Response, Docket Entry No. 31, pp. 6-7
-25-

~~

11-12.

purchased on that date, LVNV did not acquire his account because
Conn

had

previously

Plaintiff,

however,

assignment

assigned
has

prevented

made

LVNV

his
no

from

account

to

another

showing

either

acquiring

any

purportedly transferred in the November 8,

2012,

that
other
sale,

entity.
a

prior

accounts
or that

defendants attempted to collect debt they did not own and were not
entitled to collect from anyone other than him.

Absent evidentiary

showing of similarity between his claims and the claims of the
putative class members, plaintiff has failed to establish that the
legal and remedial theories applicable to his claim would also be
applicable

to

plaintiff

has

requirement.
4.

the

claims

failed

to

of

the

class

establish

where

requirement
"the

of

Fed.

representative

adequately protect the interests of
(a) (4)

typicality

R.

Civ.

parties

P.
will

the class."

23 (a) (4)
fairly
Fed.

R.

is
and
Ci v.

"Rule 23(a) 's adequacy requirement encompasses class

representatives,
two."

23(a) 's

See Stirman, 280 F.3d at 562; James, 254 F.3d at 571.

adequacy

satisfied

23

Rule

Accordingly,

Plaintiff Fails to Establish Adequacy

The

P.

members.

their counsel, and the relationship between the

Stirman, 280 F.3d at 563 (quoting Berger, 257 F.3d at 479).

"The adequacy requirement mandates an inquiry into [1] the zeal and
competence of the representative[s]'

counsel and

[2]

the

willingness and ability of the representative[s] to take an active
role in and control the litigation and to protect the interests of
-26-

absentees [ . ] "

Berger,

257 F.3d at 479

Creek Independent School District,

(quoting Horton v. Goose

690 F.2d 470,

1982), cert. denied, 103 S. Ct. 3536 (1983).

484

(5th Cir.

"Differences between

named plaintiffs and class members render the named plaintiffs
inadequate

representatives

only

if

those

conflicts between the named plaintiffs'
members' interests."

differences

create

interests and the class

James, 254 F.3d at 570 (quoting Mullen, 186

F.3d at 625-626).
Citing his own declaration, plaintiff asserts that he is an
adequate

representative

of

the

proposed

class

because

he

"is

willing to vigorously pursue these claims on behalf of the unnamed
Classes," 22 and because he

"understands the duties of the class

representative, and agrees to fulfill such duties." 23

Citing the

Ford Declaration, plaintiff argues that his counsel is adequate to
serve as class counsel because his "counsel is experienced in class
litigation

and

eminently

able

to

conduct

this

litigation

and

protect the interests of the Class." 24
Defendants

argue

that

plaintiff

has

not

demonstrated his

adequacy to serve as class representative or his counsel's adequacy
to serve as class counsel because plaintiff has failed to show that

22

Plaintiff's Memorandum, Docket Entry No. 29, p. 10 (citing
Declaration of Monte L. Shular in Support of Plaintiff's Motion to
Certify Class Action, Docket Entry No. 29-1).
23Id.

Id. at 10-11 (citing Ford Declaration, Docket Entry 29-2, ~ 4
(setting forth counsel's experience in serving as class counsel)).
24

-27-

there is a claim common to the class members or that plaintiff's
case is typical of that claim.

Citing Amchem Products, 117 S. Ct.

at 2250-51,

defendants argue that "[w] ithout first establishing

that

is

there

Plaintiff's

a

case

claim
is

common

typical

to

of

the
that

class

members

claim,

the

and

that

question

of

asserting a common right such as maximum recovery is moot." 25
In Amchem Products the Supreme Court stated that "[a]
representative must be part of the class and

class

'possess the same

interest and suffer the same injury' as the class members."
(quoting East Texas Motor Freight System,

s. Ct. 1891, 1896 (1977).

Inc. v.

Although plaintiff

Rodriguez,

is part of

Id.
97
the

proposed class of "[a]ll individuals subject to debt collection by
LVNV Funding, LLC .

in connection with debt originally owned

and purportedly purchased from Conn . . . and transferred as a part
of the November 8, 2012 assignment and sale," because plaintiff has
failed to make any evidentiary showing that he possesses the same
interest and suffered the same injury as the class members,

the

court concludes that plaintiff has failed to establish that he
adequately represents the interests of the proposed class.
light

of

the

conclusion

that

the

named

plaintiff

does

In
not

adequately represent the interests of the proposed class, the court
declines to address the adequacy of counsel issues discretely.
Amchem Products, 117 S. Ct. at 2251 & n.20

25

(declining to address

Defendants' Response, Docket Entry No. 31, p. 8
-28-

See

~

16.

the

adequacy

of

counsel

issues

discretely

in

light

of

the

conclusion that the named plaintiff did not adequately represent
the interests of the proposed class and that common issues of law
and fact did not predominate) .

c.

Plaintiff Fails to Satisfy Rule 23{b)'s Requirements

Plaintiff argues that the FDCPA and TDCA claims alleged in
this

action satisfy the

questions

of

law or

fact

requirements
common

to

of
the

Rule

23 (b) (3)

members

of

because

the

class

predominate over questions affecting only individual members, and
because a class action is superior to other available methods for
the fair and efficient adjudication of the controversy. 26
A class that satisfies all of Rule 23(a) 's requirements must
also satisfy at least one of Rule 23(b) 's three requirements.
Vizena,

360

F.3d at

502-503,

Horton,

690

F.2d at

484

&

See
n.25.

Rule 23(b) 's three requirements reflect a balance between the need
for

and

efficiency of

interests

in pursuing

Allison v.
1998) .

a

class

their

action

claims

Citgo Petroleum Corp.,

Plaintiff

seeks

and

the

class

separately or not

151 F.3d 402,

certification

under

412

Fed.

R.

members'
at

all.

(5th Cir.
Civ.

P.

23(b) (3), which states that an action may be maintained as a class
action if the court finds that the questions of law or fact common
to the members of the class predominate over questions affecting

26

Plaintiff's Memorandum, Docket Entry No. 29, pp. 12-14.
-29-

only individual members and that a class action is superior to
other available methods for adjudicating the controversy.

Classes

certified

complex

under

litigations

Rule

23(b) (3)

for money damages,

include
id. ,

large-scale,

and require notice to the

potential class members and the opportunity to opt out of the
class.

See Fed. R. Civ. P. 23(c) (2) (B).

1.

Plaintiff Fails to Establish Predominance

To satisfy the predominance requirement of Rule

23 (b) ( 3) ,

plaintiff must establish that issues in the class action that are
subject to generalized proof, and thus applicable to the class as
a

whole,

predominate

individualized proof.
84 F.3d at 741.
stringent"

and

over

issues

that

are

subject

only

to

See Allison, 151 F.3d at 419, 425; Castano,

Rule 23(b) (3) 's predominance requirement is "more
"far

more

requirement of Rule 23(a).

demanding

than"

the

commonality

Amchem Products, 117 S. Ct. at 2243.

"Common issues must constitute a significant part of the individual
cases."

Jenkins v. Raymark Industries,

(5th Cir. 1986).
where,
issues

Inc.,

782 F.2d 468,

472

Courts frequently find the requirement not met

notwithstanding the presence of common legal and factual
sufficient

to

satisfy

the

individualized inquiries predominate.

commonality
See,

~.

requirement,

Allison, 151 F. 3d

at 402; Castano, 84 F.3d at 734.
Citing Haynes v. Logan Furniture Mart.
1164

(7th

Cir.

1974),

plaintiff
-30-

argues

Inc.,
that

503 F.2d 1161,
predominance

is

established in this case because common issues often predominate in
cases like this one "which focus upon the legality of standarized
practices. " 27

Defendants

argue

that

plaintiff

has

failed to

satisfy Rule 23(b) (3) 's predominance requirement because
the Court will be forced to engage in an investigation of
each individual class member's account to determine
whether it arose from a transaction for personal, family
or household use and whether the contracts entered into
for each account contain similar language to that which
Plaintiff signed.
There is no way to efficiently
undertake this investigation which would only cause undue
delay and defeat judicial economy.
For this reason,
Plaintiff misses the mark under the predominance
inquiry. 28
Defendants argue

that

individual questions

concerning consumer

standing, limitations, contractual language, and damages predominate over the only common issue that plaintiff has identified,
i.e., whether defendants attempted to collect debt that LVNV did
not own and was not entitled to collect. 29
As noted in the commonality and typicality sections, plaintiff
has failed to present any evidence either that Conn used standard
contracts

or

that

defendants

engaged

in

standardized

collection practices capable of raising issues of
common

to

defendants'

each

class

argument

member.
that

Plaintiff

predominance

has

not

cannot

be

fact

debt

or law

replied

established

27

Id. at 12.

28

Defendants' Response, Docket Entry No. 31, pp. 9-10

29

Id. at 11-14

~~

23-31.
-31-

to

~

20.

because

issues

standing,

subject

to

limitations,

individualized proof
contractual

language,

as

to

consumer

and

damages

predominate over the only issue subject to generalized proof that
plaintiff has identified,

i.e.,

whether defendants attempted to

collect debt that LVNV did not own and was not entitled to collect.
Plaintiff's cite to Haynes, 503 F.2d 1161, is to no avail because
that

was

a

class

standardized retail

action

in

which

buyers

who

had

signed

a

installment contract sued the creditor for

violations of the Truth in Lending Act.

Haynes is distinguishable

because plaintiff has failed to present any evidence either that
Conn used a standardized contract to create the debts at issue in
this case,

or that defendants engaged in standardized practices

attempting to collect that debt.

Thus, for the same reasons that

the court has already concluded that plaintiff failed to satisfy
Rule 23(a) 's requirements, the court concludes that plaintiff has
failed to satisfy Rule 23(b) (3) 's predominance requirement.
2.

Plaintiff Fails to Establish Superiority

The superiority prong of Rule 23(b) (3)

requires a court to

consider whether a class action is superior to other methods of
adjudication.
at 2140.
other

actions,

See also Eisen, 94 S. Ct.

When determining whether a class action is superior to

means

members'

Fed. R. Civ. P. 23(b) (3).

of

adjudication

interest

in

courts

individually

consider:
controlling

( 1)

their

the

class

separate

(2) the extent and nature of existing litigation by class
-32-

members

concerning

the

same

claims,

(3)

the

desirability

of

concentrating the litigation in the particular forum, and (4) the
likely difficulties of managing a class action.

Fed. R. Civ. P.

23(b) (3) (A)-(D).
Plaintiff argues that class action treatment is the superior
method for resolving suits to enforce compliance with consumer
protection laws such as the TDCPA and the TDCA because the awards
in an individual case are usually too small to encourage the lone
consumer to file suit, and the absence of the class action vehicle
would leave many consumers with no practical alternative to enforce
their rights under these statutes.

Plaintiff also argues that the

class action device is superior because it is judicially efficient
to determine the defendants' liability for standardized conduct in
a single proceeding,

and that this court is an appropriate and

convenient forum because the proposed class is likely to include a
significant number of Texas residents. 30

Missing from plaintiff's

presentation to the court is any analysis of why, under the facts
alleged in this case, class action treatment is superior to other
methods of adjudication.

Because plaintiff has failed to make any

showing that class action treatment in this case would be superior
to

other

plaintiff

methods
has

of

failed

adjudication,
to

satisfy

the
Rule

court

concludes

23(b) (3) 's

superiority

requirement.

30

Plaintiff's Memorandum, Docket Entry No. 29, pp. 13-14.
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that

IV.

Conclusions and Order

For the reasons stated above,
Certification (Docket Entry No. 28)

plaintiff's Motion for Class
is DENIED.

The court will conduct a scheduling conference on February 26,
2016, at 3:00p.m., in Courtroom 9-B, United States Courthouse, 9th
Floor, 515 Rusk Avenue, Houston, Texas 77002.
SIGNED at Houston, Texas, on this 18th day of February, 2016.

7SIMIJAKE

UNITED STATES DISTRICT JUDGE

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