Muhammad v. PNC Bank, N.A.
Filing
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MEMORANDUM OPINION & ORDER denying plaintiff James A. Muhammad's 61 MOTION for Class Certification. Signed by Judge Joseph R. Goodwin on 10/4/2016. (cc: counsel of record; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JAMES A. MUHAMMAD,
Plaintiff,
v.
CIVIL ACTION NO. 2:15-cv-16190
PNC BANK, N.A.
Defendant.
MEMORANDUM OPINION & ORDER
Pending before the court is the plaintiff, James A. Muhammad’s, Motion for
Class Certification [ECF No. 61]. The defendant, PNC Bank, N.A., filed its Response
[ECF No. 66], and the plaintiff filed his Reply [ECF No. 72] making the Motion ripe
for adjudication. For the reasons discussed below, the Motion for Class Certification
is DENIED.
I.
Background
The plaintiff has a “home-secured loan” with the defendant. Notice of Removal
Ex. A, at ¶ 4 (“Compl.”) [ECF No. 1-1]. Although neither the plaintiff’s “Note nor . . .
Deed of Trust provide for the assessment of speed pay fees or document request fees,”
the defendant charged the plaintiff “numerous speed pay fees” and “several document
fees.” Id. ¶¶ 5–6, 9; see also id. ¶ 7, 10 (alleging the plaintiff was charged a $12 speed
pay fee in November 2013 and a $5 document fee in December 2014). Further, neither
fee “reflect[s] the actual cost of the service.” Id. ¶ 8; accord id. ¶ 11. The assessment
of these fees, according to the plaintiff, violates the West Virginia Consumer Credit
& Protection Act.
On August 31, 2015, the plaintiff, on behalf of himself and all other similarly
situated individuals, filed his Complaint in the Circuit Court of Kanawha County,
West Virginia. The plaintiff alleges three causes of action. In Count One, the plaintiff
alleges violations of section 46A-2-128(d) of the West Virginia Code in relation to the
speed pay fees. The plaintiff claims the speed pay fees violate section 46A-2-128(d)
because the fees, which are incidental to the plaintiff’s principal obligation, are not
authorized by agreement or by statute. In Count Two, the plaintiff alleges violations
of section 46A-2-128(d) in relation to the document fees. The plaintiff claims the
document fees violate section 46A-2-128(d) because the fees, which are incidental to
the plaintiff’s principal obligation, are not authorized by the agreement or by statute.
In Count Three, the plaintiff alleges violations of section 46A-2-127 of the West
Virginia Code. The plaintiff claims the defendant misrepresented the amount of a
claim “[b]y assessing or collecting speed pay and document fees that it had no right
to assess.”Id. at ¶ 29.
This case was removed to the United States District Court for the Southern
District of West Virginia on December 16, 2015. Notice of Removal [ECF No. 1].
Subsequently, the plaintiff filed his Motion for Class Certification [ECF No. 61]
pursuant Rule 23 of the Federal Rules of Civil Procedure. The plaintiff seeks to certify
two classes:
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Class A:
All West Virginia citizens at the time of the filing of this action who had
or have consumer home loans serviced by Defendant PNC and who were
charged Speedpay fees and are listed on Exhibit C.
Class B:
All West Virginia citizens at the time of the filing of this action who had
or have consumer home loans serviced by Defendant PNC and who were
charged document request fees and are listed on Exhibit C.
Pl.’s Mot. Class Cert. 1. The plaintiff contends that the classes meet the requirements
of Rule 23(a) and Rule 23(b)(3). Pl.’s Mem. Supp. Mot. Class Cert. 5–14 [ECF No. 62];
see Fed. R. Civ. P. 23(a), (b)(3).
II.
Legal Standard
“In order to determine whether a class action is proper, the district court must
determine whether a class exists and if so what it includes.” Roman v. ESB, Inc., 550
F.2d 1343, 1348 (4th Cir. 1976). Class actions must meet several criteria. First, the
class must comply with the four prerequisites established in Rule 23(a): (1)
numerosity of parties; (2) commonality of factual and legal issues; (3) typicality of
claims and defenses of class representatives; and (4) adequacy of representation. Fed.
R. Civ. P. 23(a). Second, the class action must fall within one of the three categories
enumerated in Rule 23(b); here, the plaintiff seeks to proceed under Rule 23(b)(3),
which requires that common issues predominate over individual ones and that a class
action be superior to other available methods of adjudication. Fed. R. Civ. P. 23(b)(3);
see Pl.’s Mem. Supp. Mot. Class Cert. 5–6.
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The court has “wide discretion in deciding whether or not to certify a proposed
class.” Cent. Wesleyan Coll. v. W.R. Grace & Co., 6 F.3d 177, 185 (4th Cir. 1993)
(quoting In re A.H. Robins Co., 880 F.2d 709, 728–29 (4th Cir. 1989)). “The Fourth
Circuit reads Rule 23 liberally and applies it flexibly to ‘best serve the ends of justice
for affected parties and promote judicial efficiencies.’” Helmick v. Columbia Gas
Transmission, No. 2:07–cv–00743, 2010 WL 2671506, at *9 (S.D. W. Va. July 1, 2010)
(quoting In re Serzone Prods. Liab. Litig., 231 F.R.D. 221, 237 (S.D. W. Va. 2005)).
Nevertheless, the court must still engage in “rigorous analysis” to determine
whether the proposed class meets the Rule 23 requirements. See Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 350–51 (2011). The plaintiff bears the burden of
persuading the court that a class should be certified. See Bear v. Oglebay, 142 F.R.D.
129, 131 (N.D. W. Va. 1992) (citing Int’l Woodworkers of Am., AFL-CIO v.
Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1267 (4th Cir. 1981)). “The plaintiff .
. . must be prepared to prove that there are in fact sufficiently numerous parties,
common questions of law or fact, etc.” Wal-Mart, 564 U.S. at 350.
III.
Discussion
The named plaintiff, Mr. Muhammad, is not a member of the defined classes
and therefore cannot represent the classes in this action. A basic requirement
running through the Rule 23(a) framework is that class certification is not
appropriate unless one or more class representatives actually belong to the proposed
class. Bennett v. Westfall, 640 F. Supp. 169, 170 (S.D. W. Va. 1986) (“[A] named class
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representative must be a member of the class at the time the class is certified.”). As
the Supreme Court explained, “[a] class representative must be part of the class and
possess the same interest and suffer the same injury as the class members” in order
for adequacy of representation to be satisfied. Amchem Prods., Inc. v. Windsor, 521
U.S. 591, 625–26 (1997) (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431
U.S. 395, 403 (1977)). The idea that a class representative cannot represent a class of
which he is not a member is also inherent in the commonality and typicality
requirements of Rule 23(a)(2) and (3). See Fed. R. Civ. P. 23(a)(2), (3).
“[C]ommonality and typicality tend to merge with the adequacy-of-representation
factor because all examine ‘whether the named plaintiff’s claim and the class claims
are so interrelated that the interests of the class members will be fairly and
adequately protected in their absence.’” Fisher v. Ciba Specialty Chems. Corp., 238
F.R.D. 273, 297 (S.D. Ala. 2006) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147,
157 n.13 (1982)); see also Kingery v. Quicken Loans, Inc., 300 F.R.D. 258, 265, 266
(S.D. W. Va. 2014) (noting that “the typicality and commonality prongs of Rule 23(a)
overlap” and that adequacy “tends to merge with the typicality and commonality
requirements”); McClain v. Lufkin Indus., Inc., 187 F.R.D. 267, 279 (E.D. Tex. 1999)
(explaining that commonality, typicality, and adequacy “tend to overlap and
intertwine” such that they may be collectively referred to as the “nexus
requirement”); 7A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1769 (3d ed. 2016) (“[C]ourts have noted that coextensiveness is a
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common thread binding Rule 23(a)(3) and Rule 23(a)(4) together.”). Indeed, no
“legally sufficient nexus” can exist between individual and shared claims if the
purported class representative is not even a member of the defined class; adequacy
and typicality are thereby undercut because the class representative’s interests are
“not aligned with the class members’ interests.” Fisher, 238 F.R.D. at 297.
Here, the Complaint defines both proposed classes as “All West Virginia
citizens at the time of the filing of this action.” Compl. ¶ 12; see also Pl.’s Mot. Class
Cert. 1. The plaintiff acknowledged in deposition testimony that he has lived and
worked in Indiana since April 2013, held an Indiana driver’s license since spring
2013, and maintained an Indiana mailing address for utility bills and tax returns
since 2014. Muhammad Dep. 12:5–14:9 [ECF No. 67-1]. Further, the plaintiff openly
admitted that he has not lived in West Virginia since spring 2013. Id. at 15:2–5. This
action was filed in the Circuit Court of Kanawha County, West Virginia, on August
31, 2015, two years after the plaintiff left West Virginia. See id. at 12:5–13; see also
Compl. 1.
The plaintiff contends that he “is a member of the proposed class[es]” because
the term “West Virginia citizens” actually means “consumers whose loans were
secured by real property in West Virginia.” Pl.’s Reply Supp. Mot. Class Cert. 3–4
[ECF No. 72]. The plaintiff suggests the court should redefine the class to account for
this meaning. See id. at 4. Indeed, “there is support in the case law for the notion that
district courts have discretion to limit or modify proposed class definitions, and that
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a class definition requires ongoing refinement and give-and-take.” Fisher, 238 F.R.D.
at 300 (citing Turner v. Murphy Oil USA, Inc., 234 F.R.D. 597, 611 (E.D. La. 2006)
(“[D]istrict courts enjoy discretion to limit or modify class definitions to provide the
necessary precision.”) (internal quotations omitted)).1
The plaintiff, however, has not cited, and the court has not located, any
authority requiring a district court to rewrite a class definition and redraw a class
boundary submitted by the plaintiff’s counsel to drastically expand the class to
encompass individuals excluded by the plain terms of the proffered class definition.
By the plain meaning of the term “West Virginia citizens,” the proposed classes
include people living in West Virginia with property located inside and outside the
state secured by a PNC consumer home loan who were assessed the respective fees.
If the court were to modify the class definitions to conform with the plaintiff’s
suggested meaning, the classes would include anyone with property located inside
the state secured by a PNC consumer home loan who were assessed the respective
fees. Adopting the plaintiff’s suggested meaning would result in the court certifying
wholly different classes than those which have been contemplated up to this point.2
See also Falcon, 457 U.S. at 160 (“Even after a certification order is entered, the judge remains free
to modify it in the light of subsequent developments in the litigation.”); Adair v. EQT Prod. Co., No.
1:10-cv-00037, 2013 WL 5429882, at *33 (W.D. Va. Sept. 5, 2013) (redefining class for the purposes of
ascertainability); Minter v. Wells Fargo Bank, N.A., 274 F.R.D. 525, 550 (D. Md. 2011) (redefining
class to include other claimants with timely claims).
1
The court notes that the list of class members that the plaintiff provided in Exhibit C attached to his
Motion for Class Certification is overinclusive. The list contains names of borrowers where “[t]he
property securing the loan is located in West Virginia or the borrower’s mailing address is in West
Virginia” and thus is not a true representation of the defined classes. See Pl.’s Reply Supp. Mot. Class
Cert. 2; Pl.’s Mot. Class Cert. Ex. C [ECF No. 61-3]. This brings into question the numerosity
requirement because the number of class members the plaintiff asserts is incorrect. Because the
2
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It would be more than a mere modification—it would be a complete departure.
The plaintiff crafted his definitions so that the plaintiff’s own citizenship
excludes him from the classes. The court’s discretion to modify a class definition does
not “obligat[e] it unilaterally to expand a class definition in a manner that might
prove more advantageous to the plaintiff. Having selected and litigated the class
definition of [his] choice, [the] [p]laintiff[] must live with that choice.” Fisher, 284
F.R.D. at 300. The court rejects the suggestion that the meaning of “West Virginia
citizens” is anything but the plain meaning—persons who live in the state of West
Virginia. See Citizen, Black’s Law Dictionary (10th ed. 2014) (denoting the popular
definition of citizen as “someone who lives in a particular town, county, or state”);
Webster’s II New Riverside University Dictionary 266 (1984) (defining “citizen” as
“[a] resident of a city or town, esp. one permitted to vote and enjoy other privileges
there”); see also W. Va. Const. art. II, § 3 (defining citizenship as “all person residing
in this state”).
The plaintiff further argues that because courts in the past have certified
classes similar to his redefined classes, the court should oblige under these
circumstances. Pl.’s Reply Mem. Supp. Mot. Class Cert. 4. Prior certifications of
unmodified classes are irrelevant for the purposes of determining whether to modify
a class definition. Moreover, because the court has chosen not to modify the class
definitions, the court need not consider the propriety of the newly suggested
Motion is denied on other grounds, the court will not address this inaccuracy.
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definitions.
The plaintiff has set out particular class definitions in his Motion, and it is the
plain meaning of those definitions that control. As to the proffered classes, counsel
has failed to put forward a named representative who is a member of the classes; the
plaintiff does not belong to the classes given that he does not, by his own admission,
live in West Virginia and has not lived in West Virginia since spring 2013. This failure
is fatal to the Motion for Class Certification.
IV.
Conclusion
The court DENIES the Motion for Class Certification [ECF No. 61].
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:
October 4, 2016
_________________________________________
JOSEPH R. GOODWIN
UNITED STATES DISTRICT JUDGE
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