Abby v. Paige

282 F.R.D. 576, 2012 WL 1564011, 2012 U.S. Dist. LEXIS 61686
CourtDistrict Court, S.D. Florida
DecidedMay 2, 2012
DocketNo. 10-23589-CV-JLK
StatusPublished
Cited by4 cases

This text of 282 F.R.D. 576 (Abby v. Paige) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abby v. Paige, 282 F.R.D. 576, 2012 WL 1564011, 2012 U.S. Dist. LEXIS 61686 (S.D. Fla. 2012).

Opinion

ORDER DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

JAMES LAWRENCE KING, District Judge.

THIS MATTER comes before the Court upon Plaintiffs Motion for Class Certification (DE # 202), filed March 9, 2012. Therein, Plaintiff Abby seeks to certify a class against Defendant Paige to seek damages for alleged violations of the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. The Court is fully briefed in the matter.1 Upon careful consideration of the pleadings, the Court finds that it must deny Plaintiffs motion.

I. Background

On October 6, 2010, Plaintiff Felice Abby (“Abby”), a homeowner in the Windy Pointe residential complex, filed a Complaint in above-styled action, claiming that Defendant Windy Pointe Homeowners Association, Inc. (“Windy Pointe”) and Defendant Robert Paige (“Paige”), Windy Pointe’s attorney, made unlawful attempts to collect late fees on her homeowners’ association dues and improperly placed a lien on her house. (Compl., DE # 1). Specifically, Plaintiff Abby alleges violations of the FDCPA against Defendant Paige for “failing to provide proper validation notice within five days of its initial communication with the consumers in violation of 15 U.S.C. § 1692g(a)” and for “failing to include debt collection warning as required by 15 U.S.C. § 1692e(ll) in the initial communication to consumers,” among others. (Compl. U1Í 46(a)-(b), DE # 1). After over a year of discovery, Plaintiff Abby filed the instant Motion for Class Certification (DE # 202) on March 9,2012.

II. Rule 23 Standard & Analysis

To be entitled to class certification, the party seeking certification must have standing, must meet each of the requirements specified in Rule 23(a), numerosity, commonality, typicality, and adequacy of representation, as well as at least one subsection of [578]*578Rule 23(b). See Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir.2004). In addition, “[a] plaintiff seeking certification of a claim for class treatment must propose an adequately defined class that satisfies the requirements of Rule 23.” Kelecseny v. Chevron, U.S.A., Inc., 262 F.R.D. 660, 667 (S.D.Fla.2009).

Upon satisfaction that the plaintiff has proposed an adequately defined class, the courts must ensure, through “rigorous analysis,” that each and every element of Rule 23 is established at the time of certification. See Fed.R.Civ.P. 23 advisory committee’s note. It is well settled that a plaintiff bears the burden to meet every element of Rule 23, and “a district court’s factual findings must find support in the evidence before it.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir.2009). “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 or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). The Court will address each of the Rule 23 requirements in turn.

A. Class Definition

With the instant motion, Plaintiff Abby asks the Court to certify the following class:

all consumers who received any debt collection communications (e.g., letters or notices) from Defendant-Paige without the required notices/disclosures/warnings required by the FDCPA at any time from one year prior to the filing of this action (i.e., October 6, 2009) to the present.

(DE # 202, at 1).

Upon consideration of the proposed class definition, the Court finds that it is vague, indefinite, and overbroad. The proposed class definition refers to an indefinite number of plaintiffs, and fails to specify a common harm to be remedied on a class scale. Even assuming that the Court could modify the proposed class definition so as to comply with requirements of Rule 23, the Court finds that the record is devoid of sufficient evidence to ascertain the existence of class members.

For instance, although it appears from the body of the motion that Plaintiff Abby intends the class to include the residents of approximately 100 different residential communities whose homeowners’ associations are represented by Defendant Paige, there is insufficient evidence to identify the residential communities referenced (aside from a bare-bones list of the names of some of Defendant Paige’s clients), no record evidence to ascertain the identities of these individuals, and no evidence that any of these individuals ever received a letter or notice from Defendant Paige, much less one that allegedly violated the unspecified provisions of the FDCPA. (DE # 202, at 2). Accordingly, the Court rejects the proposed class definition.

B. Numerosity

The numerosity requirement of Rule 23 necessitates a determination as to “whether ‘the class is so numerous that joinder of all members is impracticable.’ ” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1266-67 (11th Cir.2009) (quoting Fed. R. Civ. P. 23(a)(1)). “The U.S. Court of Appeals for the Eleventh Circuit, however, has recently made it abundantly clear that the burden to satisfy numerosity is on the plaintiff seeking to certify a class, and a plaintiff is not permitted to make a purely speculative showing that numerosity has been met.” Kelecseny, 262 F.R.D. at 669.

Here, numerosity is, at best, speculative. Instead of directing the Court to record evidence, Plaintiff Abby asserts in the motion that the “numerosity element has easily been met as a reasonable and common sense estimate of the number of consumers sent the non-complying debt collection communications substantially exceeds 40 in number.” (DE # 202, at 6). In Reply to Defendant Paige’s Response highlighting the speculative and eonclusory nature of Plaintiff Abby’s numerosity argument, Plaintiff Abby further states, without any specific reference to the record, that “[a]ll that is required is approximately 40 other class members; in light of Paige’s broad debt collection practice and his own testimony, nu-[579]*579merosity has easily been met.” (DE # 254, at 4). Accordingly, the Court finds that Plaintiff Abby has failed to present sufficient evidence to support a finding a numer-osity.

C. Commonality

Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Specifically, the plaintiff has the burden to “demonstrate that the class members ‘have suffered the same injury.’ ” Wal-Mart, 131 S.Ct. at 2550-51 (quoting Gen. Telephone Co. of SW v. Falcon, 457 U.S. 147

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Cite This Page — Counsel Stack

Bluebook (online)
282 F.R.D. 576, 2012 WL 1564011, 2012 U.S. Dist. LEXIS 61686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abby-v-paige-flsd-2012.