Castro v. Collecto, Inc.

256 F.R.D. 534, 2009 U.S. Dist. LEXIS 20324, 2009 WL 650586
CourtDistrict Court, W.D. Texas
DecidedMarch 4, 2009
DocketNo. EP-08-CA-215-FM
StatusPublished
Cited by7 cases

This text of 256 F.R.D. 534 (Castro v. Collecto, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Castro v. Collecto, Inc., 256 F.R.D. 534, 2009 U.S. Dist. LEXIS 20324, 2009 WL 650586 (W.D. Tex. 2009).

Opinion

ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

FRANK MONTALVO, District Judge.

On this date, the Court considered Neme-sio Castro’s (“Plaintiff’) “Plaintiffs Motion for Class Certification” (“Motion to Certify”) [Rec. No. 25], filed January 15, 2009. Plaintiff requests the Court to enter an order allowing the above-captioned cause to proceed as a class action against Colleeto, Inc. dba Collection Company of America and U.S. Asset Management, Inc. (collectively, “Defendants”). Defendants oppose Plaintiffs Motion to Certify in “Defendants’ Memorandum in Opposition to Plaintiffs Motion for Class Certification” [Rec. No. 35], filed February 4, 2009. On February 17, 2009, Plain[536]*536tiff filed “Plaintiffs Reply in Support of Motion for Class Certification” [Rec. No. 41]. Based upon the parties’ briefs, argument, and the law, the Court will grant Plaintiffs Motion to Certify.

I. FACTUAL BACKGROUND

Plaintiff asks the Court to certify a class defined as

(a) all individuals with Texas addresses (b) who were sent a letter in the form represented by Exhibit A to Plaintiffs Complaint, (c) seeking to collect a cellular telephone debt (d) which became delinquent more than 2 years prior to the sending of the letter in the form represented by Exhibit A to Plaintiffs Complaint, (e) which letter was sent between June 16, 2007[,] and July 6, 2008.1 Plaintiff requests the Court to permit the Law Office of Scott A. Vogelmeier and Edelman, Combs, Lattur-ner & Goodwin, LLC to be appointed counsel for the class.2 Defendants oppose Plaintiffs Motion to Certify on the basis that the class is “not clearly ascertainable” and individual issues predominate over issues common to the proposed class.3 Defendants contend the Court will have to conduct “an independent analysis of myriad factual and novel legal issues to determine if such individuals fall within Plaintiffs overly broad and ambiguous class definition.”4

II. APPLICABLE LAW

A. Fair Debt Collection Practices Act

According to the Fair Debt Collection Practices Act (“FDCPA”), “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.”5 Congress has barred debt collectors from “threat[en-ing] to take any action that cannot legally be taken or that is not intended to be taken”6 or from the “us[ing] of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.”7 Similarly, “[a] debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.”8 Congress provided actions arising under the FDCPA could be brought as class actions.9

B. Class Certification Pursuant to the Fair Debt Collection Practices Act

The Fifth Circuit has determined in order for plaintiffs to proceed as a class in an FDCPA action, they must meet the requirements of Federal Rule of Civil Procedure 23 (“Rule 23”).10 Rule 23 states, in

(0) ne or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable [ (“numerosity”) ];
(2) there are questions of law or fact common to the class [ (“commonality”) ];
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [ (“typicality”) ]; and
(4) the representative parties will fairly and adequately protect the interests of the class [ (“adequacy”) ].11

A Rule 23 class action may only be maintained if one of the following is satisfied;

(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible stan[537]*537dards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunc-tive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds 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. The matters pertinent to these findings include:
(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;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.12

Plaintiff seeks certification of the class pursuant to subsection (b)(3) of Rule 23.13 The Court “maintains substantial discretion in determining whether to certify a class action.” 14

1. Requirements of Rule 23(a)

i. Numerosity

In establishing “numerosity,” “the purported class must be ‘so numerous that joinder of all members is impracticable.’”15 In order for a plaintiff to satisfy the numerosity prong, there must be “some evidence or reasonable estimate of the number of purported class members.”16 A plaintiff must present sufficient evidence to bring the assertion of numerosity “beyond the ‘mere allegation that the class is too numerous to make joinder practicable’ which, by itself, is insufficient.”17 “[T]he proper focus ... is not on numbers alone, but on whether joinder of all members is practicable in view of the numerosity of the class and all other relevant factors.”18 Accordingly,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Creppel v. Gee
M.D. Louisiana, 2020
McWilliams v. Advanced Recovery Systems, Inc.
310 F.R.D. 337 (S.D. Mississippi, 2015)
Conrad v. General Motors Acceptance Corp.
283 F.R.D. 326 (N.D. Texas, 2012)
Unifund CCR Partners v. Lindsey
2012 UT App 76 (Court of Appeals of Utah, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
256 F.R.D. 534, 2009 U.S. Dist. LEXIS 20324, 2009 WL 650586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castro-v-collecto-inc-txwd-2009.