Banks v. Kottemann Law Firm

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ERICKA BANKS CIVIL ACTION VERSUS NO. 19-375-JWD-EWD KOTTEMAN LAW FIRM, ET AL.

AND SHELITA KING CIVIL ACTION VERSUS NO. 20-340-BAJ-EWD KOTTEMAN LAW FIRM, ET AL.

RULING AND ORDER

Before the Court is Defendants’ Motion to Transfer and Consolidate (Doc. 9). Defendants, Kotteman Law Firm and Stanley Kotteman, seek to consolidate this matter with the action captioned Banks v. Kotteman Law Firm, et al., No. 19-00375-JWD-EWD, under Federal Rule of Civil Procedure 42(a)(2). The Motion is opposed (Doc. 14). For the reasons set forth below, the Defendants’ motion is GRANTED. I. BACKGROUND Civil action 20-00340 (“King”) and civil action 19-00375 (“Banks”) are both actions filed on behalf of Louisiana consumers under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. Both actions involve the same attorneys, the same Defendants, functionally the same claims, a request for class certification, and call for the same relief. Banks was filed on June 10, 2019. (19-00375, Doc. 1 (“Banks Complaint”)). Banks alleged harms under the FDCPA, “including but not limited to” violations

under §§ 1692e, 1682f, and 1692g. Id. at ¶¶ 44-57. The Banks Complaint called for the certification of two classes. The first proposed class is comprised of all individuals with addresses in Ascension Parish who were sent a debt collection letter by Defendants with the language “if the amount owed is not paid within 30 days then the amount due will be owed plus reasonable attorney fees of 25% of principal and interest.” Id. at ¶ 35(a). The second proposed class is comprised of all individuals with addresses in Ascension Parish to whom the Defendant sent an initial debt collect

letter that failed to identify the current creditor to whom the debt alleged owed was. King was filed on June 5, 2020. The complaint in King is essentially identical to the complaint in Banks. King alleges the same unlawful debt collection practices as Banks, under the same statutory provisions and extends the proposed classes to include all individuals nationwide. (20-00340, Doc. 1 (“King Complaint”), at ¶¶ 39(a), 39(c)). King also proposes an additional class consisting of individuals nationwide to

whom Defendants sent a debt collection letter with the “reasonable attorney’s fees” language, but only in connection with attempting to collect a consumer debt owed to Baton Rouge Cardiology specifically. Id. at ¶ 39(b). The cases are in slightly different stages. In Banks, an entry of default was entered against the Defendants. (19-00375, Doc. 8). However, a motion to set aside the clerk’s entry of default in that case is pending with a motion to compel arbitration. (19-00375, Doc. 16). The King action was filed more recently and currently a motion to dismiss is pending in the matter. (Doc. 8). II. LEGAL STANDARD If actions before the court involve a common question of law or fact, the court

may consolidate the actions. Fed. R. Civ. P. 42(a)(2). Consolidation is discretionary. Varnado v. Leblanc, No. 3:13-00348-JWD-EWD, 2016 WL 320146, at *2 (M.D. La. Jan. 25, 2016). Consolidation “does not cause one civil action to emerge from two; the actions do not lose their separate identity.” McKenzie v. United States, 678 F.2d 571, 574 (5th Cir. 1982). Rather, consolidation “is permitted as a matter of convenience and economy in administration.” Johnson v. Manhattan Ry. Co., 2389 U.S. 479, 497

(1933). However, consolidation “may be properly denied in instances where the cases are at different stages of preparedness for trial.” Varnado, 2016 WL 320146, at *2. Factors relevant to a determination of consolidation include whether the actions are pending in the same court, the common identity of the parties, the existence of common questions or law or fact, the risk of confusion or prejudice that may result from consolidation, and the extent to which consolidation would promote juridical efficiency. Id. (citing Arnold & Co., LLC v. David K. Young Consulting, LLC,

No. SA-13-CV-00146-DAE, 2013 U.S. Dist. LEXIS 50103, at *4, 2013 WL 1411773, at *1–2 (W.D. Tex. Apr. 8, 2013)). III. ANALYSIS Here, the majority of the factors weigh in favor of consolidation. Both actions are pending before the same court, share common defendants, and have overlapping plaintiffs and counsel. Consolidation would conserve judicial resources because much of the discovery and testimony required in King would also be required in Banks, should the entry of default be set aside. There is also limited risk of confusion from consolidation, as the issues are largely the same.

Plaintiff opposes consolidation on the basis that the two cases are in different stages of litigation, as Defendant defaulted in Banks while King was filed relatively recently. Plaintiff also argues that consolidation premature in light of the motion to compel arbitration in Banks and the motion to dismiss in King. It is important to note that consolidation does not result in “merging the constituent cases into one” but rather enables “more efficient case management while preserving the distinct identities of the cases, and the rights of the separate parties in them.” See Hall v.

Hall, 138 S.Ct. 1118, 1125 (2018). The fact that the cases have slightly different litigation postures and perhaps may require different legal strategies does not outweigh the overwhelming interest in judicial economy that will be achieved by consolidation. Should the entry of default remain in Banks or should the motion to compel arbitration be granted in Banks, it will not affect the rights and obligations of the parties with respect to King. Therefore the motion is not premature, and

consolidation is warranted. IV. CONCLUSION Accordingly, IT IS ORDERED that Civil Action No. 20-00340 is transferred to Judge John W. deGravelles and Magistrate Judge Erin Wilder-Doomes and consolidated with the lead case, Civil Action No. 19-00375, styled Ericka Banks v. Kottemann

Law Firm, et al. Baton Rouge, Louisiana, this 23rd day of November, 2020.

S

______________________________________ ______________________________________ JOHN W. DEGRAVELLES, JUDGE BRIAN A. JACKSON, JUDGE UNITED STATES DISTRICT COURT UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA MIDDLE DISTRICT OF LOUISIANA