United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, United States District Court Chief
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.
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.
Motions to Strike
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.
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.
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.
Motion to Certify Class
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)).
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.
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.
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
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.
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; ...