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Smith v. Simm Associates, Inc.

United States District Court, E.D. Wisconsin

January 12, 2018



          William C. Griesbach, United States District Court Chief Judge

         Plaintiff Jessica Smith alleges Defendant SIMM Associates, Inc. violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq. by sending Plaintiff a debt collection letter naming Defendant's client as PayPal Credit and the original creditor as Comenity Capital Bank. She asserts that the letter violates the FDCPA because it fails to identify the current creditor of the debt and falsely implies that Comenity Capital Bank transferred, sold, or assigned ownership of the debt to unknown creditors. Am. Compl. ¶¶ 16-27, ECF No. 21.

         Plaintiff filed a motion for class certification on October 31, 2017. She proposes to represent a class consisting of “[a]ll persons with addresses in the State of Wisconsin to whom Simm Associates, Inc. mailed an initial written communication, between May 31, 2016 and June 21, 2017, which was not returned as undeliverable, and which identified ‘Paypal Credit' as the ‘Client' but not the current creditor or owner of the debt.” Pl.'s Br. at 2, ECF No. 34. Defendant has since filed motions to strike certain filings submitted by Plaintiff. For the following reasons, Plaintiff's motion for class certification will be granted and Defendant's motions to strike will be denied.

         I. Motions to Strike

         Defendant has filed two motions to strike certain documents submitted by Plaintiff. First, Defendant seeks to strike the declarations of Plaintiff and Plaintiff's counsel, which were attached to Plaintiff's reply brief in support of her motion for class certification. Defendant asserts the declarations provide new evidence for the court's consideration that should have been addressed in Plaintiff's initial brief. Plaintiff contends the declarations bolster her response to the arguments raised in Defendant's brief in opposition. “[W]here the reply affidavit merely responds to matters placed in issue by the opposition brief and does not spring upon the opposing party new reasons for [granting the motion], reply papers-both briefs and affidavits-may properly address those issues.” See Baugh v. City of Milwaukee, 823 F.Supp. 1452, 1457 (E.D. Wis. 1993). Plaintiff properly submitted the declarations to strengthen the assertions contained in her motion and to respond to the weaknesses identified by Defendant. Accordingly, these documents will not be struck.

         Second, Defendant requests that the court strike Plaintiff's notice of supplemental facts in support of her motion for class certification, which was filed after the motion for class certification was fully-briefed. In the alternative, Defendant requests an opportunity to respond to Plaintiff's supplemental facts. The court will deny Defendant's motion to strike and construe it as a response to Plaintiff's supplemental facts. Plaintiff asserts that during the deposition of Defendant's designated representative, which occurred after the close of briefing on the motion for class certification, she discovered new facts that controvert the assertions made in Defendant's brief. Defendant counters that its representative's testimony does not contradict the facts presented in the response brief when read in its entirety.

         It appears Plaintiff relies on these supplemental facts to refute Defendant's assertion that, by listing both PayPal Credit and Comenity Capital Bank on the letter, unsophisticated consumers would be able to recognize the account and understand who they owe money to. Yet, this argument goes to the merits of the claim, which the court does not consider in addressing a motion for class certification. See, e.g., Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013) (“Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.”); Schleicher v. Wendt, 618 F.3d 679, 685 (7th Cir. 2010) (“Under the current rule, certification is largely independent of the merits . . . .”). Therefore, the court will only consider these facts to the extent they are needed to determine whether Plaintiff has satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure. The court will now turn to Plaintiff's motion for class certification.

         II. Motion to Certify Class

         A plaintiff requesting class certification must satisfy the four prerequisites of Rule 23(a) as well as one of the provisions listed in Rule 23(b). Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). Rule 23(a) requires that a plaintiff establish that “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). It is the plaintiff's burden to prove that class certification is warranted. Oshana, 472 F.3d at 513. Rule 23 is not a “mere pleading standard, ” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011), and a plaintiff must prove each disputed requirement by a preponderance of the evidence. Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 811 (7th Cir. 2012), reh'g denied (Feb. 28, 2012) (citing Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008)).

         The four prerequisites of Rule 23(a)-numerosity, commonality, typicality, and adequate representation-are satisfied in this case. Defendant does not dispute that the proposed class includes 2, 495 members. The Seventh Circuit has recognized that classes consisting of as few as forty members could satisfy numerosity. Pruitt v. City of Chicago, 472 F.3d 925, 926-27 (7th Cir. 2006); Shields v. Local 705, Int'l Bd. of Teamsters Pension Plan, 188 F.3d 895, 897 (7th Cir. 1999); Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969). Therefore, this class is sufficiently large to meet Rule 23(a)(1)'s numerosity requirement.

         Rule 23(a)(2)'s commonality requirement is satisfied when a common issue of law or fact 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.” Dukes, 564 U.S. at 350. That is, a plaintiff must show that the class members “suffered the same injury.” Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 497 (7th Cir. 2012) (citation omitted). “[S]uperficial common questions-like whether . . . each class member suffered a violation of the same provision of law-are not enough.” Id. at 497 (internal quotation marks omitted). “Common nuclei of fact are typically manifest where . . . the defendants have engaged in standardized conduct towards members of the proposed class by mailing to them allegedly illegal form letters or documents.” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (citations omitted). Plaintiff's complaint alleges that the offending form letters Defendant mailed to the purported class members violate the FDCPA because they failed to identify the creditor of the debt it sought to collect. Am. Compl. ¶¶ 1, 36. This is sufficient to establish commonality.

         The typicality requirement of Rule 23(a)(3) “primarily directs the district court to focus on whether the named representatives' claims have the same essential characteristics as the claims of the class at large.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). “A plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” Id. (citation omitted). Plaintiff's allegation that Defendant mailed the same allegedly offending form letter to the purported class members gives rise to each member's claim that Defendant violated the FDCPA. In short, Plaintiff meets the typicality requirement.

         Finally, Rule 23(a)(4) requires that the class representatives “fairly and adequately protect the interests of the class.” This prerequisite is directed at “concerns about the competency of class counsel and conflicts of interest” between the class and its representatives. Dukes, 564 U.S. at 349 n.5. In assessing adequacy, the court must consider whether the named Plaintiff “(1) has antagonistic or conflicting claims with other members of the class; (2) has sufficient interest in the outcome of the case to ensure vigorous advocacy; and (3) has counsel that is competent, qualified, experienced and able to vigorously conduct the litigation.” Wahl v. Midland Credit Mgmt, Inc., 243 F.R.D. 291, 298 (N.D. Ill. 2007). The burden of establishing this standard is “not difficult.” Murray v. New Cingular Wireless Serv., Inc., 232 F.R.D. 295, 300 (N.D. Ill. 2005). Although Defendant does not dispute the adequacy of class counsel, it asserts Plaintiff has provided “no evidence to support the contention that she is an adequate class representative.” Def.'s Br. at 3, ECF No. 40. It also asserts Plaintiff's “propensity to file for bankruptcy” raises concerns about her ability to adequately represent the class. Id. The fact that Plaintiff has filed for bankruptcy is not enough to warrant a finding that she is an inadequate class representative. See Wilborn v. Dun & Bradstreet Corp., 180 F.R.D. 347, 355-57 (N.D. Ill. 1998); Wanty v. Messerli & Kramer, P.A., No. 05-CV-0350, 2006 WL 2690176, at *2 (E.D. Wis. Sept. 19, 2006). There is no evidence of any conflicting interests Plaintiff may have with the class. Indeed, Plaintiff has the same interest as the class members in seeking relief from Defendant for its alleged violations of the FDCPA. Plaintiff has demonstrated a basic understanding of the underlying facts and a willingness and ability to participate in the suit. The court finds that Plaintiff is an adequate class representative.

         Having met the four requirements of Rule 23(a) by a preponderance of the evidence, Plaintiff must satisfy at least one provision of Rule 23(b). Here, Plaintiff relies on Rule 23(b)(3), which requires that the court find “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” In deciding this issue, the court should consider “(A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; ...

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