Dykes v. Portfolio Recovery Associates, LLC

Filing 57

MEMORANDUM OPINION re Motion for Class Certification and Appointment of Class Council. Signed by District Judge James C. Cacheris on 1/28/16. (klau, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

CAROLYN DYKES,
on behalf of herself and all
others similarly situated,
Plaintiff
v.
PORTFOLIO RECOVERY ASSOCIATES,
LLC
Defendant.

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M E M O R A N D U M

1:15cv110 (JCC/MSN)

O P I N I O N

This matter is before the Court on Plaintiff Carolyn
Dykes’ (“Plaintiff”) Motion for Class Certification and
Appointment of Class Council.

[Dkt. 44]

For the following

reasons, the Court denies Plaintiffs’ Motion for Class
Certification and Appointment of Class Council.

I. Background
Plaintiff filed the instant action alleging violations
of the Fair Debt Collection Practices Act (“FDCPA”) by Defendant
Portfolio Recovery Associates (“PRA”).

Specifically, Plaintiff

claims that PRA violated the FDCPA by sending her debt
collection notices in Spanish rather than English.

Plaintiff

never indicated she preferred to receive correspondence in
Spanish and she does not speak or understand Spanish.
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The

Plaintiff now seeks class certification for the class defined as
follows:
All consumers with Virginia addresses, who: (a) within
one year of January 28, 2015 (b) were sent a debt
collection letter in Spanish by Defendant PRA in a
form materially identical or substantially similar to
the letter attached to Plaintiff’s Complaint as
Exhibit A; and (c) the letter was not returned by the
postal service as undelivered.
(Pl.’s Mem. in Supp. [Dkt. 45] at 1.)

Discovery has revealed

that PRA sent the three letters received by Plaintiff to 3,030
individuals in Virginia during the class period.

(Id. at 3.)

PRA also sent copies of two allegedly similar letters to another
300 individuals in Virginia during the class period.

(Id.)

Discovery also revealed that PRA began corresponding with
Plaintiff in Spanish after receiving a response in Spanish from
a phone call to a number which a LexisNexis skip-tracing search
indicated was connected with Plaintiff.

(Id. at 4.)

Plaintiff

alleges that PRA soon realized that this number was not
connected with Plaintiff and struck it from its register, but
continued to correspond with Plaintiff in Spanish.

Each of the

three Spanish letters sent to Plaintiff contains language which,
when translated, notifies the reader that “[t]his letter comes
from a collection agency and its intention is to collect a debt.
Any information that is obtained will be used for that purpose.”
(Am. Compl. ¶¶ 12, 13, 16.)

In denying a previous motion to

dismiss in this case, the Court noted that “[t]here is no
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allegation . . . that the substance of the Spanish collection
letters contained false statements or information; quite simply,
they were just written in Spanish, a language [Plaintiff] could
not read.”

(Mem. Op. at 5.)

The Motion for Class Certification

and Appointment of Class Council has been fully briefed, oral
argument was heard on January 21, 2016, and the motion is now
ripe for decision.
II. Standard of Review
A class action is “an exception to the usual rule that
litigation is conducted by and on behalf of the individual named
parties only.” Wal-Mart Stores v. Dukes, 131 S.Ct. 2541, 2550
(2011).

“The district court must perform a rigorous analysis to

ensure that a class certification is appropriate” before
certifying a class.

Soutter v. Equifax Info Servs., 498 F.App’x

260, 264 (4th Cir. 2012).

The Fourth Circuit has “stressed in

case after case that it is not the defendant who bears the
burden of showing that the proposed class does not comply with
Rule 23, but that it is the plaintiff who bears the burden of
showing that the class does comply with Rule 23.”

Thorn v.

Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 321 (4th Cir.
2006)(emphases in original).

“A party seeking class

certification must affirmatively demonstrate his compliance with
the Rule – that is, he must be prepared to prove that there are
in fact sufficiently numerous parties, common questions of law
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or fact, etc.”

Dukes, 131 S.Ct. at 2551.

The class

certification inquiry frequently involves analysis that
“overlap[s] with the merits of the plaintiff’s underlying
claim.”

Id.

“[T]he class determination generally involves

considerations that are enmeshed in the factual and legal issues
comprising the plaintiff’s cause of action.”

General Telephone

Co. of Southwest v. Falcon, 102 S.Ct. 2364, 2372 (1982).
In order to be certified, “a proposed class must
satisfy Rule 23(a) and one of the three sub-parts of Rule
23(b).”

Thorn, 445 F.3d at 318 (citing Gunnells v. Healthplan

Servs., Inc., 348 F.3d 417, 423 (4th Cir. 2003)).

Rule 23(a)

requires “numerosity of parties, commonality of factual or legal
issues, typicality of claims and defenses of class
representatives, and adequacy of representation.”

Id.

In

proving commonality, the party seeking class certification must
show that a certified class would have “the capacity . . . to
generate answers” that “resolve an issue that is central to the
validity of each one of the claims in one stroke.” Dukes, 131
S.Ct. at 2551. If the resolution of the claim “turns on a
consideration of the individual circumstances of each class
member,” then commonality is not satisfied.
319.

Thorn, 445 F.3d at

The four requirements of Rule 23(a) are threshold

requirements, each of which must be satisfied in order to

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proceed as a class action.

Amchem Prods. v. Windsor, 117 S.Ct.

2231, 2245 (1997).
Additionally, “Rule 23 contains an implicit
requirement that the members of a proposed class be readily
identifiable.”

EQT Prod., 764 F.3d at 358.

This is sometimes

referred to as the “ascertainability” requirement. Id.

In order

to satisfy this requirement, “the plaintiff must demonstrate
that class members will be identifiable without extensive and
individualized fact-finding or mini-trials[.]”

Soutter v.

Equifax Information Services, LLC, 307 F.R.D. 183, 196 (E.D.Va
2015)(internal quotation marks omitted).

Ascertainability is a

threshold requirement which must be satisfied in order to
proceed as a class action.

EQT Prod., 764 F.3d at 358.

“Rule 23(b)(3) has two components: predominance and
superiority.”

Id. at 319.

Predominance requires that

“questions of law or fact common to the members of the class
predominate over any questions affecting only individual
members.”

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

Predominance “tests whether

proposed classes are sufficiently cohesive to warrant
adjudication by representation.”

Gariety v. Grant Thornton,

LLP, 368 F.3d 356, 362 (4th Cir. 2004)(internal quotation marks
omitted).

This predominance standard is “even more demanding

than Rule 23(a).”

Comcast Corp. v. Behrend, 133 S. Ct. 1426,

1432 (2013) (citing Amchem Prods., Inc. v. Windsor, 521 U.S.
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591, 623-24 (1997)).

Superiority requires that “a class action

is superior to other available methods for the fair and
efficient adjudication of the controversy.” Fed.R.Civ.P.
23(b)(3).

“The predominance inquiry focuses not only on the

existence of common questions, but also on how those questions
relate to the controversy at the heart of the litigation.”
Prod. 764 F. 3d at 358.

EQT

Where the court must engage in

“substantial and individualized inquiries for each class
member,” the predominance requirement is not satisfied.

Paulino

v. Dollar General Corp., 2014 WL 1875326, at *6 (N.D. W. Va. May
9, 2014)(citing Randleman v. Fidelity Nat. Title Ins. Co., 646
F.3d 347, 353).
III.

Analysis

Plaintiff argues that each of the four requirements of
Rule 23(a) and both the predominance and superiority
requirements of Rule 23(b)(3) have been met for her proposed
class.

(Pl.’s Mem. in Supp. at 7).

As a threshold matter, PRA

challenges the validity of the Plaintiff’s proposed class
definition as “untethered from her FDCPA claim, which hinges on
the putative class members’ Spanish literacy.”
Opp. at 7.)

(Def.’s Mem. in

PRA also challenges the validity of what it

believes would be the properly defined class as failing to
satisfy ascertainability, commonality, typicality, and
numerosity. (Id. at 14-22.)

Finally, PRA denies that Plaintiff
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has demonstrated predominance and superiority as required by
Rule 23(b).

(Id. at 22-25.)

The Court agrees with the

Defendant that the class described by Plaintiff in her
memorandum in support is both incorrectly defined and lacking
commonality.

The Court also finds that even were the class

properly defined, it would be fatally deficient with respect to
ascertainability and numerosity.
1.

Relationship of the Proposed Class to the Claim

“The definition of the class is an essential
prerequisite to maintaining a class action.”
Inc., 550 F.2d 1343, 1348 (4th Cir. 1976).

Roman v. ESB,
Courts have refused

to certify a class “if it is apparent that it contains a great
many persons who have suffered no injury at the hands of the
defendant.”

Kohen v. Pacific Inv. Management Co. LLC, 571 F.3d

672, 677 (7th Cir. 2009); See also, Pagan v. Dubois, 884 F.Supp.
25, 28 (D.Mass. 1995)(denying certification to a class
comprising all Latino prisoners as “clearly overbroad” when
“only those Latino prisoners who cannot communicate effectively
in English” were allegedly harmed).

The class proposed in

Plaintiff’s Memorandum in Support of her Motion for Class
Certification includes recipients of PRA’s Spanish-language
dunning letters who actually speak Spanish and indicated to PRA
that they primarily speak Spanish or indicated that they would
like to receive correspondence in Spanish.
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Because the Court

finds that those individuals have suffered no violation of the
FDCPA, Plaintiff’s proposed class definition is overbroad.
Plaintiff mischaracterizes the nature of her claim
when she describes “the key question” as “whether providing
notices, required by statute, solely in Spanish violates the
FDCPA.”

(Pl.’s Mem. in Supp. at 9.)

This omits the issue of

why PRA is providing the notices in Spanish.

A previous

memorandum opinion by this Court denying Defendant’s Motion to
Dismiss noted that “[t]here is no allegation . . . that the
substance of the Spanish collection letters contained false
statements or information; quite simply, they were just written
in Spanish, a language [Plaintiff] could not read.”

(Mem. Op.

at 5.)
Courts have repeatedly held that notices in Spanish
are not per se violations of the FDCPA.

See, e.g. Reed v.

Southwest Credit Sys., LP, 2013 U.S. Dist. WL 1966973, at *4
(S.D. Tex. May 10, 2013)(holding that a Spanish language
paragraph giving recipient a phone number to call if they spoke
Spanish rather than English did not violate the FDCPA because
“[t]here is no evidence . . . that a Spanish-speaking debtor who
received a letter similar to the April 28 letter and who called
the phone number would not be given notice in Spanish that
complied fully” with the FDCPA); Molina v. Healthcare Revenue
Recovery Group, LLC, 2012 U.S. Dist. WL 3067883, at *3 (M.D.
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Fla. July 27, 2012)(again holding that a Spanish language
paragraph in an English letter was not misleading to an English
speaker where the letter otherwise complied with the FDCPA).
The Plaintiffs in both Reed and Molina, like the plaintiff here,
relied on a decision from the Eastern District of New York in
the case of Ehrich v. I.C. System, Inc., 681, F.Supp.2d 265,
(E.D.N.Y. 2010) holding that the presence of a paragraph in
Spanish on an otherwise English-language letter could mislead a
Spanish speaking consumer if the Spanish paragraph was deficient
under the FDCPA and overshadowed the notice provided by the
letter. Id. at 273-274.

Ehrich does not stand for the

proposition that all FDCPA disclosures must be made in English
all the time.

Rather, the Eastern District of New York held in

Ehrich that where a dunning letter includes writing in Spanish,
that writing must comport with the requirements of the FDCPA.
Id.

While Reed, Molina, and Ehrich all dealt with a single

Spanish paragraph in an otherwise predominantly English letter,
they each support this Court’s previous assertion that “[t]he
plain statutory language of 15 U.S.C. § 1692e(11) does not
require English-only disclosures.”

(Mem. Op. at 9.)

The

decision in Reed suggests, and this court agrees, that where the
recipient of dunning letters indicates that she primarily speaks
Spanish or requests Spanish language disclosures, Spanishlanguage disclosures can satisfy the FDCPA’s requirements.
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Plaintiff argues that the use of LexisNexis’s skiptracing service to secure the number which led to PRA’s mistaken
belief that Plaintiff spoke Spanish was unreasonable in light of
the dubious reliability of the skip-tracing service.
Mem. in Supp. at 4.)

(Pl.’s

Plaintiff may be right in this regard, but

the reliability of the skip-tracing service is irrelevant to the
proper definition of the class in this case.

Plaintiff’s cause

of action stems from the unsolicited receipt of dunning letters
in a language she does not speak.

The Plaintiff has not

provided, and the Court cannot find, any case where a federal
court has found the use of skip-tracing services violates the
FDCPA.

The crux of Plaintiff’s case is not that PRA violated

the FDCPA by using a skip-tracing service, but that PRA violated
the FDCPA by sending her a dunning letter written entirely in
Spanish without any prior indication by Plaintiff that she
primarily spoke Spanish.
There is no allegation in this case that the Spanish
letters failed to contain the required “mini-miranda” warnings
in Spanish, or that the Spanish letters “could objectively
affect the least sophisticated [Spanish-speaking] consumer’s
decisionmaking.”

Powell v. Palisades Acquisition XVI, LLC, 782

F.3d 119, 126-27 (4th Cir. 2015).

No violation is alleged for

the recipients of PRA’s Spanish-language dunning letters who
indicated that they primarily speak Spanish or indicated that
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they would like to receive correspondence in Spanish.

Any

proper definition of the class would have to be limited to
individuals who received the Spanish-language dunning letters
without first indicating that they primarily speak Spanish or
that they would like to receive correspondence in Spanish.
Because it is facially apparent that Plaintiff’s proposed class
contains many individuals who did not suffer harm at the hands
of the Defendant, the Court declines to certify her proposed
class.
2.

Commonality

The class as proposed by the Plaintiff also runs into
fatal problems with the commonality requirement of Rule 23(a).
Commonality requires that a proposed class action have “the
capacity . . . to generate answers” that “resolve an issue that
is central to the validity of each one of the claims in one
stroke.” Dukes, 131 S.Ct. at 2551.

“Dissimilarities within the

proposed class are what have the potential to impede the
generation of common answers.” Id.

If the resolution of the

claim “turns on a consideration of the individual circumstances
of each class member,” then commonality is not satisfied.
Thorn, 445 F.3d at 319.

“A point of commonality must be

specific – and relevant – enough that it could help form the
basis for the success of an individual claim.”
F.R.D. at 200.
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Soutter, 307

In the case at hand, not all of the 3,330 proposed
class members have a valid claim for violations of the FDCPA.
Only those class members who received the Spanish-language
letters without first indicating that they primarily spoke
Spanish or wished to receive communications in Spanish have a
valid claim.

The validity of the FDCPA claim, then, turns not

on the receipt of the letters, but on the “individual
circumstances of each class member” surrounding receipt of the
letters.

Thorn, 445 F.3d at 319.

Because the validity of the

FDCPA claims of the proposed class members hinges on the
individual circumstances under which they received the Spanish
language letters rather than the sole common characteristic of
having received a Spanish-language dunning letter from PRA, the
proposed class fails to satisfy Rule 23(a)’s requirement of
commonality.

The Court therefore denies Plaintiff’s motion to

certify her proposed class on the basis of commonality as well.
3.

Ascertainability

Even if Plaintiff had properly defined a class
consisting only of those who received dunning letters in Spanish
without indicating that Spanish was their primary language or
otherwise requesting communications in Spanish during the class
period, her Motion for Class Certification would be denied.
While this class would consist only of those who actually

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suffered the complained of wrong, it suffers from fatal
deficiencies with respect to ascertainability.
In spite of Plaintiff’s assertions to the contrary,
the burden is on the plaintiff to “demonstrate that class
members will be identifiable without extensive and
individualized fact-finding or mini-trials[.]”

Soutter 307

F.R.D. at 196 (internal quotation marks omitted); see also
Thorn, 445 F.3d at 321 (“it is the plaintiff who bears the
burden of showing that the class does comply with Rule 23”
(emphasis in original)).

Here, Plaintiff has not offered any

method at all for determining which of the 3,330 recipients of
the Spanish-language letters received them without first
indicating that they primarily spoke Spanish or that they would
like to receive correspondence in Spanish.

Plaintiff

acknowledges that PRA claims to “have no way of identifying with
any certainty which, of the 3,330 class members, allegedly
requested that communications be made solely in Spanish.”
(Pl.’s Mem. in Supp. at 5. (citing Privette Dep. [Dkt. 55-10] at
65-69))

The deposition testimony of PRA’s corporate designee

indicates that there is no readily available way to determine if
an account was coded as Spanish speaking in PRA’s system due to
a request by the consumer or without the consumer’s consent.
PRA’s corporate designee described the procedure to determine

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the events surrounding a particular account being flagged as
Spanish speaking thusly:
So I would start by looking at all of these accounts
that are flagged as Spanish and then I would have to go
into the account and try to identify when the flag was
added. IT could identify if they were added at the time of
the pool load but I would need to go through the account
notes to figure out when the flag was added if it was added
by the collector
Once I found out it was added by a collector, I then
would need to see if we had any call recording associated
with that conversation that caused the flag to be changed.
I would then have to go to – have those call recordings
pulled for me and then I would have to listen to those call
recordings, assuming they all were there and existed, and
then for me I would need a translator to tell me what they
were saying if they were speaking Spanish, and then I would
make a determination.
(Privette Dep. 66:11-67:1.)

The corporate designee went on to

explain that PRA’s trained agents are not required to document
the specific reason for flagging the consumer’s account, often
making it impossible to discover the specific reason why an
account was flagged as Spanish speaking by simply reviewing
PRA’s records.

There is no way to know which of the 3,330

recipients of the Spanish-language letters received the letters
without first giving a valid indication that they primarily
spoke Spanish or preferred to receive communications in Spanish
without engaging in a detailed review and analysis of the
individual context of each of the 3,330 recipients’ accounts.
This detailed review and analysis would entail “extensive and

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individualized fact-finding or mini-trials.”

Soutter 307 F.R.D.

at 196 (internal quotation marks omitted).
Plaintiff has not demonstrated that there would be a
reliable or administratively feasible mechanism for determining
which of the 3,330 Spanish-language letter recipients received a
letter without a prior indication that they primarily spoke
Spanish or wished to receive their correspondence in Spanish.
Accordingly, the Court finds that Plaintiff has not demonstrated
that the class is ascertainable.
4.

Numerosity

If the class were properly defined as the 3,330
individuals who received Spanish-language letters from PRA,
numerosity would clearly be met.

As discussed above, however,

that class definition is not appropriate in this case.

Because

the Plaintiff has not made any showing suggesting how many of
the 3,330 letter recipients received the letter without first
indicating that they spoke Spanish or would like to receive
communications in Spanish, the Court has no way to determine
whether the properly defined class satisfies the requirement of
numerosity.

It is difficult to imagine a scenario in which a

plaintiff would fail to demonstrate that a class is
ascertainable yet would somehow manage to satisfy numerosity.
In any event, this Plaintiff has not demonstrated that the

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requirement of numerosity is satisfied with regards to the
properly defined class in this case.
5.

Typicality

“The premise of the typicality requirement is simply
stated: as goes the claim of the named plaintiff, so go the
claims of the class.”

Broussard v. Meineke Discount Muffler

Shops, Inc., 155 F.3d 331, 340 (4th Cir. 1998)(quoting Sprague
v. General Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998),
cert. denied, 118 S.Ct. 2312 (1998)).

As discussed above, only

those individuals who received the Spanish-language letters
without first giving some indication that they primarily spoke
Spanish or requested communications in Spanish have a
potentially valid claim against PRA.

Because each of the five

letters is substantially similar in that they admittedly meet
the FDCPA’s requirements in Spanish but contain no English, the
Court finds that as goes the Plaintiff’s claim, so would go the
claim of each class member with a valid claim.

Therefore

Plaintiff’s claim is typical of the claims of the class members.
6.

Adequacy of Representation

In order to satisfy the requirement of adequacy of
representation, “a class representative must be part of the
class and ‘possess the same interest and suffer the same injury’
as the class members.”

East Tex. Motor Freight System, Inc. v.

Rodriguez, 97 S.Ct. 1891, 1896 (1997)(quoting Schlesinger v.
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Reservists Comm. to Stop the War, 94 S.C.t 2925, 2930 (1974)).
Defendant does not contest that the Plaintiff here adequately
represents the proposed class.

Plaintiff, an English speaking

individual who received dunning letters in Spanish without
requesting communication in that language, is a member of the
class however it is defined.

Plaintiff’s interest and injury

are the same as those of other class members with valid claims.
Accordingly, the Court finds that Plaintiff has satisfied the
requirement of adequacy of representation.
IV.

Conclusion

The class as proposed by Plaintiff is too loosely
defined and is deficient with respect to the requirement of
commonality.

Further, the Plaintiff has failed to show that the

properly defined class is reasonably ascertainable or that it
satisfies the requirement of numerosity.

Accordingly, the Court

denies the Plaintiffs’ Motion for Class Certification and
Appointment of Class Council.
An appropriate order will issue.

/s/
January 28, 2016
Alexandria, Virginia

James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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