Fariasantos v. Rosenberg & Associates, LLC

Filing 63

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 10/27/2014. (jsmi, )

IP L_L-_i-n
OCTtfZOW
IN THE tJNITED

STATES DISTRICT COURT

CLEW RlCHWOiiD.VACOURT
U.S. DISTBICI

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

CLAUDIO FARIASANTOS,

on behalf of

himself and all others similarly situated,
Plaintiff,
V.

Civil Action No.

ROSENBERG & ASSOCIATES,

3:13CV543

LLC,

Defendant.
MEMORANDUM OPINION

This matter is before the
DEFENDANT

ROSENBERG

CERTIFICATION

(Docket

CERTIFICATION
TO

FILE

reasons

HIS

set

&

(Docket
FIRST

ASSOCIATES,

No.

37),

No.

49),

AMENDED

forth

Court on

denied,

and

MOTION

FOR

PLAINTIFF'S

AMENDED COMPLAINT

CLASS

and

(Docket No.

(Docket

FOR

No.

CLASS

FOR LEAVE

44).

For

the

&

ASSOCIATES,

37)

is granted,

(Docket

TO

CLASS

FOR

MOTION

(Docket No.

LEAVE

FOR

MOTION

ROSENBERG

CERTIFICATION

44)

MOTION

PLAINTIFF'S

DEFENDANT

MOTION

following motions:

PLAINTIFF'S

LLC'S MOTION FOR CLASS CERTIFICATION
PLAINTIFF'S

LLC'S

COMPLAINT

herein,

the

FILE

No.

49)

HIS

is

FIRST

is denied.

PROCEDURAL BACKGROUND

Plaintiff,

of

himself

action

and

against

Claudio

all

Fariasantos

others

Defendant

("Fariasantos"),

similarly
Rosenberg

situated,
&

on

brought

Associates,

behalf

this
LLC

("Rosenberg")

alleging

Practices Act,

violations

15 U.S.C.

Class Action Complaint

§

of

1692,

the

^

seq.

(Docket No. 1).

to dismiss pursuant to

Fed.

R.

Civ.

allege

violations

("the

P.

12(b)(6)
2014,

ruling that Counts I,

of

the

Fair

Debt

Debt

FDCPA").

the Court denied

II,

and III,

Collections

(Mar.

2014) (Docket

the

pending motions,

judgment,
30,

as

30) .

well

as

Thereafter,

a

motion

Act

See Mem.

Op.

the parties

for

which

Practices

each state a plausible claim for relief.
No.

See

and an answer.

("FDCPA"),
10,

Collection

Rosenberg filed a motion

By Memorandum Opinion issued on March 10,

the motion to dismiss,

Fair

partial

filed

summary

which was denied as moot by Order issued on September

2014.

The

Court

heard argument

on the pending motions

on

September 29, 2014.

PROCEDXJRAL

This

parties
case,

matter

agree

but

is

that

there

are

in

class

an

POSTURE

unusual

procedural

certification

competing motions

is
for

"Either plaintiff or defendant may move
whether the action may be
Wright
2014) .

& Miller,

Federal

posture.

appropriate
class

for

a

The

in

certification.

determination of

certified under Rule 23(c)(1)."
Practice and

The difference between the

Procedure

this

§

1785

competing motions

7AA

(3d ed.

for

class

certification is the scope of the class definition and thus the
scope of class membership.

DISCUSSION

Introduction

Rosenberg's

certify
Class

the

statewide

Action

definition

Motion

for

class

Complaint

i s as

(A)

Class

that

(Docket

Certification's

Fariasantos

No.

1).

seeks

proposed

That

proposed

in

to

the

class

follows:

All Virginia residents to whom Defendant

sent

a

letter in

the

which contains

the

of

form of Exhibit A,

rights

validation

15 U.S.C.

in

§

text

(B)

1692g notice

identical

to

that in Exhibit A,
(C)
in an attempt to
collect
a
home
loan debt,
(D)
that was
incurred primarily for personal, household
or family purposes, (E) during the one year

period prior to the filing of the Complaint
in this matter.

Class
Motion

seeks

Action Complaint
for

to

Class

certify

(Docket No.

Certification

a

class

than Virginia residents)
case after discovery."
50)

at 2 n.l.

of

1),

SI

(Docket

Henrico

40,
No.

County

at
49),

10.

his

Fariasantos

residents

(rather

"to comport with the narrowing of this
Pl.'s Mem.

Supp. Class Cert.

(Docket No.

The new proposed class definition is as follows:

(A)
All
residents
of
Henrico
County,
Virginia to whom Defendant sent a letter in
the

In

form

of

Exhibit

A,

(B)

which

contains

the 15 U.S.C. § 1692g notice of validation
rights in text identical to that in Exhibit
A, (C) in an attempt to collect a home loan
debt,
(D)
that was incurred primarily for
personal, household or family purposes, (E)
during the one year period prior to the
filing of the Complaint in this matter.

Pl.'s Mem. Supp. Class Cert.

Thus,
if so,

which class to certify.

class or not,

scope

of

the

6 F.3d 177,

Pilot

Ins.

Life

Co.,

(M.D.

Ga.

414 n.7
The

Citizens
1985);

(5th Cir.

The Court has the discretion to

See

185
445

MAMSI Life & Health Ins.

v.

at 2.

and this discretion extends to defining

class.

Grace Co.,

Meyer

50)

the Court must decide whether to certify a class and,

certify a
the

(Docket No.

Wesleyan

{4th Cir.
F.3d

Co.,

311,

1993);
317

256 F.R.D.

& Southern
In

Cent.

Nat.

Thorn v.

(4th Cir.
158,

Bank.,

related motion

for

leave

to

162

106

re Monumental Life Ins.

2004), cert, denied,

College

125 S. Ct.
file

an

W.R.

Jefferson-

2006);
(D.

365

277

Wu v.

Md.

F.R.D.

Co.,

v.

2008);

356,

360

F.3d 408,

(2004).

amended complaint

filed by Fariasantos would amend the class definition to a class
of Henrico County residents rather than a statewide class.

Federal Rule of Civil Procedure 23's Requirements

To satisfy Federal Rule of Civil Procedure 23(a),
must

find

that

prerequisites

the

-

class

numerosity,

adequacy of representation.
members

also

must

it

be

certifies

complies

commonality,

Fed.

R.

ascertainable

Civ.
and

P.

the Court
with

four

typicality,

and

23(a).

The class

identifiable.

Rule

23

was amended in 2003 to require that "[a]n order that certifies a
class action must define the class and the class claims,

or defenses."

Fed.

R.

Civ.

P.

issues,

23 (c) (1) (B) (emphasis added).

See

also Wm. Moore et al.,

ed.)

5 Moore^s Federal Practice § 23.21[1]

(3d

("A class action is possible only when the class definition

provides

a

determining
"For a

court
who

with
is

tangible

and

who

and

is

practicable

not

a

member

class to be sufficiently defined,

standards

of

the

for

class.").

the court must be able

to resolve the question of whether class members are included or

excluded
Moore,

from

supra,

the

Here,

enumerated

Servs.,

Inc.,

both parties

of Civil

reference

to

"the class action must

categories

Healthplan

by

objective

criteria."

§ 23.21[3][a].

In addition,

three

class

348

in

fall

Rule

F.3d

within one of the

23(b)."

417,

424

Gunnells

(4th

seek certification pursuant to

Procedure

23(b)(3).

Rule

23(b)(3)

Cir.

v.

2003).

Federal Rule

requires

that:

(1)

common questions of law or fact predominate over any questions

affecting only individual class members; and (2) proceeding as a
class must be superior to other available methods of litigation.
Fed.

R.

Civ.

obligation to

P.

23(b)(3).

perform a

The

"rigorous

Court

analysis"

of the prerequisites of Rule 23 are met.
Adair,
Inc.

V.

764 F.3d 347,
Dukes,

131 S.

The parties
class

members

in

358

(4th Cir.

Ct.

agree
both

2541,

and

2551

to

an

independent

ensure

that

EQT Production Co.

all

v.

2014) (citing Wal-Mart Stores,
(2011)).

the Court

proposed

has

concurs

classes

are

that

the putative

ascertainable

and

identifiable.

at

issue

would

In fact,

have

already

include

statewide

83

those who received the FDCPA form letter

been

identified.

consumers

class

would

in

Henrico

include

2,332

A

county-wide

County,

class

Virginia.

consumers

A

throughout

Virginia.
Rule 23(a)(1)

requires that the class be "so numerous that

joinder of all members is impracticable."
claimants
Lines,

74);
375

is

726

required.

F.2d 136,

Cypress
F.2d

v.

648,

See,

146

Newport
653

e.g.,

(4th Cir.

No specific number of

Brady

v.

1984) (certifying a

News

Gen.

Cir.

(4th

Thurston

& Nonsectarian

1967) (certifying

a

Motor

class of

Hosp.
class

Ass'n,
of

18).

Both proposed classes satisfy the numerosity requirement.
Rule
member's

23(a)(2)
claim

requires

"depend[s]

commonality,

upon

a

common

that

each

contention"

class

that

"is

capable of classwide resolution - which means that determination
of its truth or falsity will resolve an issue that is central to
the validity of each one of the claims in one stroke."
131

S.

Ct.

at

2551.

The

requirement is satisfied.

parties

agree

that

the

Dukes,

commonality

This Court and others have held that

commonality is met in cases involving the receipt of identical
debt-collection

Assocs.,

Nov.

3,

P.C.,

2011);

letters.

No.

See

3:llcv78,

Talbott v.

Bickinq

2011

v.

Mitchell

WL 5325674,

GC Servs.

Ltd.

Pshp.,

at

Rubenstein

*2

191

&

(E.D.

Va.

F.R.D.

99,

103

(W.D.

Va.

2000).

Both

proposed

classes

satisfy

the

commonality requirement.
Rule

are

of

23(a)(3)

typical

of the

typicality

claims

Dieter

or

requires

the

class members.

must

defense

v.

that

involve
with

Microsoft

a

"[T]he

plaintiff's

of

436

the

F.3d

of

the

absent

461,

claims

appropriate analysis

comparison

those

Corp.,

named

466

plaintiffs'

class

(4th

members."

Cir.

2006).

The parties agree that the typicality requirement is satisfied.
Fariasantos'

All

class

claims and the class members'

members

were

sent

FDCPA

form

the identical language at issue herein.
about

Fariasantos'

claims.

claims are

letters

identical.

that

contained

There is nothing unique

Both proposed

classes

satisfy the

typicality requirement.

The

fourth

requirement

representation pursuant
satisfied as

argument

to both

that

he

statewide class.
on

behalf

demonstrates
(1)
in

of

favor

of

Fed.

be

an

Rule

The

23(a),

Civ.

R.

classes.

may

P.

Court

unwilling

adequacy

23(a) (4),

rejects

is

of

also

Fariasantos'

representative

of

the

The Class Action Complaint that counsel filed
Fariasantos

that

Fariasantos'

to

of

there

is

and

a

proposed

adequacy of

statewide

class

representation because:

counsel is well-qualified to prosecute the case

either

class;

and

(2)

Fariasantos

has

no

interests

that

are antagonistic to the interests of

the class members of

either class.

The

parties

requirement
Court

is

"The

classes

adjudication

by

turns

the

both

single

classes

Inc.

2011

Windsor,

again,

'tests

cohesive

Bicking,
v.

and,

inquiry

sufficiently

predominance

521

whether

to
WL

the

warrant

5325674,

U.S.

591,

at
623

"[e]ach class member's potential claim

question of whether

[the

letter]

violated

That shared issue clearly predominates over potential

peripheral

matters,

this case."

Id.

predominate

making

over
All

the

collective

resolution

Questions of law and fact

any

class

claims

questions
members

letters by Rosenberg,
establish

to

23(b)(3)'s

predominance

Prods.,

As in Bicking,

members.

Rule

representation.'"

(1997)).

the FDCPA.

as

are

(quoting Amchem

on

that

satisfied

concurs.

proposed

*3

agree

were

in

common to the class

affecting
sent

sensible

the

only
same

individual
FDCPA

form

and no individualized proof is needed to
of

Fariasantos

or

the

other

class

members.

The predominance requirement is satisfied as to both classes.
The
action

is

final

requirement

superior to

is

other methods

adjudicating the controversy."
Bicking,

"class

whether,

litigation

Fed.

for

adjudicating the claims presented here,

this

fairly

R. Civ.

provides

8

in

a

P.

case,

"a

class

and efficiently
23(b)(3).

superior

As in

means

of

as the minimal recovery

available

to

incentive

most

for

litigants

class

under

members

individually." 2011 WL 5325674,
preclude
In

some

class
FDCPA

certification,
cases,

the

the

to

pursue

at *4.

particularly in

class

Eltman,

Eltman

& Cooper,

members

P.C.,

gives

their

little

claims

Small recoveries do not

the only award is distributed cy pres.
V.

FDCPA

FDCPA cases.

receive

no

payment

Id.
and

See, e.g., Reade-Alvarez

2006

WL

3681138

(E.D.N.Y.

2006) (approving a $15,000 cy pres payment to the local legal aid

society) .

A class action will be a far more efficient means of

adjudicating

this

prosecutions,

controversy,

even

incentive,

assuming

time,

individually.

and

Many

rather

that

not,

many

consumers

knowledge

would

than

to

and

individual

would

pursue

their

have

their

claims

the

claims

would

be

unprosecuted.^
The factors to be considered in determining the superiority
of

a

class

individual

action

are:

prosecutions;

litigation;

(2)

the

the

interest

existence

in

of

controlling

other

related

(3) the desirability of concentrating the litigation

in the forum;

and

Here,

who

those

(1)

(4)

manageability.

wish

prosecutions may do so.

to

opt

out

Fed.
and

R.

Civ.
pursue

P.

23(b)(3).
individual

Currently, there is no other litigation

^ In addition, the statute of limitations may run before the
potential plaintiffs understand that they may have a claim and
how to pursue it.

pending

that

arises

letters

have

since

potential

statewide

But

whether

are

class

a

identical

revised.

Virginia

Finally,

the

the

been

classes

appropriate.

from

form

Since

letters,

the

members

residents,

this

both classes are manageable.
would

Henrico

satisfy

County

the

class

superiority

would

and
of

the
both

forum

is

Undoubtedly,
requirement.

satisfy

this

final

requirement will be addressed in the next section.
Given

the

Court's

findings

with

regard

to

Rule

23's

requirements, this matter will proceed as a class action.

Which Class Should Be Certified?

Rosenberg asks

that the Court grant

its motion for

class

certification and certify the original statewide class "on the
issues

of both

Rosenberg's

liability and damages

available

to

the class and impose a statutory damages cap of one percent (1%)

of

Rosenberg's

net

worth

pursuant

to

1692k(a)(2)(B).Def.'s Mem. Supp. Class Cert.

^ In

a

class

action,

the

FDCPA

15

tJ.S.C.

§

(Docket Nos. 38 &

provides

for

a

maximum

recovery of statutory damages of up to $1,000 to each named
plaintiff and limits the recovery available to the class "not to
exceed the lesser of $500,000 or 1
of the debt collector." 15 U.S.C.

per centum of the net worth
§ 1692k (a) (2) (B) . Rosenberg

has provided, under seal, its purported net worth, from which
the parties have calculated the limited statutory damages.
The
recovery, per class member, would be much less if there are
2,332 class members rather than 83 class members.
10

43)

at 1.

Fariasantos opposes Rosenberg's motion and asks the

Court to grant his motion to certify the Henrico County class.
According
presented by

to

Fariasantos,

"the

only

material

[his motion for class certification]

issue

is whether or

not this smaller class meets Rule 23's numerosity requirement."
Pl.'s

Mem.

Supp.

Class

Cert.

noted previously herein,

(Docket

No.

50)

at

2.

But,

as

the Court finds that both classes meet

Rule 23's numerosity requirement.
In

response

Fariasantos

are

cannot

statewide

class

representative.
has

Fariasantos

all

for

the

but

he

establish
it

seeks

his

of

for

the

class

also

adequacy

because

Pl.'s Mem.

rejected
and

that

met

complaint,"

Rosenberg

Court

Rosenberg's motion

"agree [s]

certification

original

to

Opp'n

it

class

requirements
defined

takes
of

the

argument

counsel

satisfy

in

of

cannot

position
for

this

that
the

compel an unwilling

55)

at 2,

is

and

class

Plaintiff's

representation

(Docket No.

this

certification,

4-6.

confident

requirement

for

The
that
both

classes.

Rosenberg argues that the class of Henrico County residents

"is

not

a

superior method

particularly as

of

compared to a

adjudicating

Virginia Class."

Pl.'s M. Class Cert.

(Docket Nos.

determined

statewide

that

the

Plaintiff's

54 & 57)

class

11

at 11.

satisfies

claims,

Def.'s Opp'n to
The Court has

the

superiority

requirement,
does

so.

but must now consider whether the county-wide class
The

superiority

requirement

requires

the

Court

to

determine whether the "class action is superior to other methods
for fairly and efficiently adjudicating the controversy."

Plaintiff s

arguments

in

support

of

the

narrower

Henrico

County class include that such a class would include "uniformly
treated
such

consumers,"

class

manner,

sign

member

using the

deeds

timing

of

uniform."

that

and
the

the

would

"foreclosures

have

been

threatened

handled

in

for

an

each

identical

same third party collection subcontractor to

process

foreclosure

advertisements

Pl.'s Mem.

Supp.

for

sales,"

the

and

sales

Class Cert.

that

would

(Docket No.

"tt]he

have
50)

been

at

17.

Fariasantos also argues that the class members would be close to

each other geographically,

and that

the

limited fund would be

"more effective and fair" if divided among a smaller group.

Rosenberg disputes plaintiff's arguments.

Id.

It contends that,

even if plaintiff's arguments for limiting the class to Henrico
residents,

such as how the

foreclosures were handled,

are true,

they are irrelevant because this action has nothing to do with
how

the

based

foreclosures

solely on

Rosenberg
about

the

sent

the

to

were

conducted.

violations

all

disclosures

members
is

in

of

the

the

tailored

12

Instead,

to

FDCPA

this

form

Virginia

letters

class.

consumers

action

who

is

that

Nothing
live

in

Henrico County.
court,

rejecting

Hennepin

logical
start

to

Minnesota,

limit

with

"R"

(Docket Nos.

certification

County,

Messerli

*5

Def.'s Opp'n

the
or

& Kramer,

(D. Minn. Mar.

P.A.,

21,

to

[]

a

class

observed

class

to

of

[]

in

would

as

whose

own

lasts

out

Borcherding-Dittloff v.

than

that

there

are

Wenig

v.
at

decisions

Transworld Systems,

1999)(granting

certification

a

nationwide

class

in

Credit

Solutions,

Inc.,

297

FDCPA

reasons

plaintiff

for

relies

doing

so.

address

authorizes statewide,

42

Inc.,

of

action);

F.R.D.

And the Court would consider a

sound

that permit

a

See,

statewide

Diaz

e.g.,

185 F.R.D.

v.

(E.D.N.Y.

558

rather

Residential

2014)(same).

county-wide class if there were

But most

the

issue

as opposed to,

of

of

the

cases

whether

nationwide,

as opposed to a statewide class,

on

the

which

FDCPA

class actions,

and those cases do not support the argument that a
class,

names

2013 WL 1176062,

11CV3547,

cats."

classes to be limited to specific geographic areas.

Wis.

be

2013).

Plaintiff points

(W.D.

One

addresses

"it

consumers
who

at 8-9.

with

that

consumers

Case No.

54 & 57)

county-wide

is a superior method of

adjudication here.
If the Court certifies Fariasantos'

class,

form

then

letter

the

from

2,000-plus

Rosenberg

individuals

but

13

who

do

proposed Henrico County

who

not

received

reside

the

in

FDCPA

Henrico

County would have to bring individual lawsuits or other countyby-county actions, or their claims would go unprosecuted.

Such

a result would be counter to one of the main purposes of class
actions -

avoiding multiple lawsuits.

Services,

Inc.,

2005) (citing

404

Crown,

F.

Supp.

Cork

Campos v.

2d

& Seal

1164,

Co.

v.

Western Dental

1172

Parker,

(N.D.

462

Ca.

U.S.

345

(1983)) .

Fariasantos

certification at
is

trying

to

recovery

itself

of damages

Pl.'s

previously,

Rosenberg's

least in part

insulate

forced payment
possible."

opposes

to

Opp'n

of

statutory

because,
"from

as

damages

he

a

No.

class

Rosenberg

exposure

group
55)

for

contends,

greater

large

(Docket

in a class action,

motion

at

of

and

consumers

1.

As

the
as

noted

the FDCPA provides for a maximum
of

up

to

$1,000

to

each

named

plaintiff and limits the recovery available to the class "not to
exceed the

of

the

lesser of

debt

$500, 000

collector."

15

or 1

U.S.C.

per centum of the net worth

§

1692k(a) (2) (B) .

Rosenberg

contends that plaintiff's counsel wants to limit this action to
Henrico

County

residents

and

thereafter

bring

a

class

action

like this one in other counties in the Commonwealth of Virginia
in

order

to

increase

the

recovery per plaintiff.
liability for

attorneys'

fees

This would,

thus,

1% of its net worth,

14

and

obtain

a

larger

subject Rosenberg to

over and over again for the

same

infirmities

Virginia

class.

Essentially,
aimed at

in

the

Def.'s

FDCPA

form

Opp'n

(Docket

Rosenberg's argument

avoiding the

letter

is

sent

Nos.

that

statutory damages

54

to

&

the

entire

57),

at

1.

"serial class actions

cap are

not

a

superior

method of adjudication under Rule 2 3 ( b ) ( 3 ) I d . at 5.

Although Fariasantos contends that the "net worth" argument
is

not

relevant

to

these motions,

he

also

argues

that

a

capped

fund of money divided among 83 Henrico County consumers will be
more

He
its

fair

than

dividing

also contends

that

letters after this

FDCPA

has

a

one-year

that

same

fund

since Rosenberg
case was

statute

among

2,332

claims to have

filed about a

of

consumers.

corrected

year ago and the

limitations,

then

it

is

not

likely that plaintiff s counsel can bring other county-by-county
actions.

The Court does not believe that plaintiff's counsel intends

to bring additional county-by-county actions.

hearing,

as an

partners

have

officer of
lined

the Court,

class

actions against Rosenberg based on this FDCPA form letter.

But,

plaintiff's

wide action is superior,

for

that neither he nor his
county-wide

notwithstanding

up plaintiffs

He stated at the

arguments

other

regarding

possibility

a

county-

the Court disagrees with that position.

If the Court certified a Henrico County class,
the

why

of multiple

lawsuits.

15

And,

it would increase
if

there

were

not

multiple lawsuits,
unprosecuted.

then the claims of most Virginians would go

Neither of those results is desirable.

A Henrico

County class is not superior to other means of adjudication and,
therefore,

denied.

Fariasantos'

See Campos,

There

County

are

claims

no

and

motion

for

class

certification

will

be

404 F. Supp. 2d at 1173.
material

those

differences

from

other

between

counties.

the

Henrico

Dividing

the

Virginia class based on geography is not supported by any facts
or case law.

A Virginia class

is a

members,

and

it

the

judicial

resources,

would

reduce

and adjudicate

manageable number of class
number

the

residents who received the same letter.

plaintiff sought

in the beginning.

of

claims
And,

Clearly,

action is superior to many individual suits.

cases,

preserve

of all

Virginia

that class is what

a

statewide class

Rosenberg's motion

for class certification will be granted.

Plaintiff s Motion for Leave to File His First Amended Complaint

Citing Fed.

R.

Civ.

P.

15(a),

Fariasantos moves

for

leave

to file an amended complaint in order to conform with his motion
for

class

requires

certification

that

requires."

"leave

and a

shall

Henrico

be

freely

County

given

class.

The

Rule

when

justice

so

The Supreme Court listed the factors that should be

considered.

16

In the absence of any apparent or declared
reason - such as undue delay, bad faith or
dilatory motive on the part of the movant,
repeated failure
to cure deficiencies by
amendments
previously
allowed,
undue
prejudice to the opposing party by virtue of
allowance
of the amendment,
futility
of
amendment, etc. - the leave sought should,
as the rules require, be "freely given."
Foman

v.

Davis,

enumeration

of

371

U.S.

factors

178,

cannot

182

be

(1962).

thought

"While

exclusive,

Foman^ s

they

do

embody a principle which focuses on prejudice or futility or bad
faith as the only legitimate concerns in denying leave to amend,
since

only

these

truly

relate

to

protection

of

the

judicial

system or other litigants." Davis v.

Piper Aircraft Corp.,

F.2d

Fourth Circuit

606,

613

"Unless a
because

(4th

of

substantive

or

Having
Rule

deny

the

The

determined
23(b)(3)'s

motion

procedural

the merits of the

the decision whether

meet

1980) .

proposed amendment may clearly be

conjecture about
into

Cir.

for

to

that

leave

to

seen to be

futile

litigation should not

Henrico

superiority

continues:

considerations

allow amendment."

the

the

enter

Id.

County

requirement,

file

615

class
the

amended

fails

Court

to

will

complaint

as

futile.
CONCLUSION

For

the

ASSOCIATES,

reasons

set

LLC'S MOTION

forth

above,

DEFENDANT

FOR CLASS CERTIFICATION

17

ROSENBERG

(Docket No.

&

37)

is granted,
No.

49}

PLAINTIFF'S MOTION FOR CLASS CERTIFICATION (Docket

is denied,

and PLAINTIFF'S MOTION FOR LEAVE TO FILE HIS

FIRST AMENDED COMPLAINT (Docket No. 44) is denied.
I t is so ORDERED.

/s/

Robert E. Payne

Senior United States District Judge
Richmond, Virginia
Date:
October 2^7/ 2014

18