Christiana Mortgage Corp. v. Delaware Mortgage Bankers Ass'n

136 F.R.D. 372, 1991 U.S. Dist. LEXIS 5588, 1991 WL 65375
CourtDistrict Court, D. Delaware
DecidedApril 24, 1991
DocketCiv. A. No. 89-310-JRR
StatusPublished
Cited by18 cases

This text of 136 F.R.D. 372 (Christiana Mortgage Corp. v. Delaware Mortgage Bankers Ass'n) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christiana Mortgage Corp. v. Delaware Mortgage Bankers Ass'n, 136 F.R.D. 372, 1991 U.S. Dist. LEXIS 5588, 1991 WL 65375 (D. Del. 1991).

Opinion

OPINION

ROTH, District Judge.

The plaintiffs in this action are six mortgage brokers: Christiana Mortgage Corporation, Consolidated Mortgage Corporation, Sunvest Mortgage Corporation, Landmark Mortgage, Inc., Amato & Stella Mortgage Corporation, and Mortgage Associates, Inc. They filed suit against the Delaware Mortgage Bankers Association (“DMBA”), David C. Sorber (“Sorber”), and the Delaware Trust Company (“Delaware Trust”), claiming that an article,- written by defendant Sorber for the DMBA was libelous and intended to cause a boycott of mortgage brokers by DMBA members. In the article, Sorber stated his support for the adoption of legislation to regulate the activities of mortgage brokers. The complaint asserts various antitrust violations under Sections 1 and 2 of the Sherman Act, as well as two counts for libel, and four further counts for injurious falsehood, tortious interference with business relations, deceptive trade practices, and conspiracy.

By Order of April 9, 1990, this Court granted Defendants’ Motion for Summary Judgment as to plaintiffs’ claims for libel, deceptive trade practices, injurious falsehood, and deceptive trade practices on the ground that these claims were barred by the Noerr-Pennington doctrine. See [376]*376United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). However, we denied the summary judgment motion as to plaintiffs’ claims for antitrust violations, tortious interference with business relations, and conspiracy because of evidence regarding a separate circulation to realtors of a truncated version of the Sorber article, accompanied by an instruction to agents within certain realtors’ offices that they should not recommend the listed mortgage brokers to clients. (Docket Item 43 at 50-54).

On their remaining claims, the six individual plaintiffs now seek to represent a class including twenty-two additional mortgage brokers. Plaintiffs’ Motion for Class Certification is presently before this Court. For the reasons stated below, that motion will be denied.

FACTS

The named plaintiffs are all mortgage brokers who operate in Delaware. Defendant Sorber is an employee of Defendant Delaware Trust, whose business includes mortgage banking. Sorber is also a past president of Defendant DMBA, and has acted on occasion as their agent. DMBA is an unincorporated association whose membership includes lending institutions, title insurers, appraisers, and others in the housing financing industry in Delaware. Delaware Trust is a member of DMBA. Plaintiffs allege that their businesses operate in direct competition for mortgage loan originations with DMBA’s lending institution members.

The present dispute essentially arises from an article published on April 14, 1989 by Sorber regarding mortgage brokers and proposed legislation to regulate them in the State of Delaware. The Sorber article addressed “the problems and the dangers that unlicensed, unregulated mortgage brokers pose” to the industry by “operating under a loophole in the Delaware mortgage banker licensing law.” (Sorber article, D.I. 39A, Ex. 6). Attached to the article was a document entitled “Mortgage Bankers and Mortgage Brokers ... Operating Without a State License or Exemption Letter,” which listed the names and addresses of, and comments on, twenty-eight brokers including the six plaintiffs in this action. (List attached to Delaware Trust’s Answering Brief at A-18).

As defendants admit, the Sorber article was distributed to the members of DMBA. Plaintiffs also allege that defendants distributed the article, or a truncated version consisting of only the list of brokers “Operating Without a State License or Exemption Letter,” to various other persons including real estate agents operating in New Castle County, Delaware. Their complaint further states that referrals of consumers from real estate agents is one of three major avenues by which mortgage brokers obtain business. Plaintiffs claim that as a result of the distribution of the Sorber article and its truncated version, real estate agents ceased referring consumers to plaintiffs and further disparaged plaintiffs’ services. Consequently, plaintiffs suffered a loss of business and harm to their reputations.

Following this Court’s ruling on defendants’ summary judgment motion, five counts of plaintiffs’ complaint remain. Count I alleges that defendants combined and conspired to boycott plaintiffs’ businesses in violation of Section I of the Sherman Act, 15 U.S.C. § 1 (1988). In Count II they claim that defendants combined and conspired to create an unreasonable restraint of trade, also in violation of Section 1. Count III charges that defendants combined and conspired to attempt to monopolize the market, in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2 (1988). Each of these three antitrust counts is raised under Section 4 of the Clayton Act, 15 U.S.C. § 15 (1988). Count VII asserts a claim of tortious interference with existing and prospective business relations. Lastly, Count IX raises a claim of conspiracy.

Plaintiffs’ present motion seeks to certify a class composed of the twenty-eight mortgage brokers whose names and addresses appear in the list attached to the [377]*377Sorber article. In addition to the six named plaintiffs, sixteen of the remaining twenty-two brokers on the list are also located in Delaware. The final six listed brokers are all located either in New Jersey or Pennsylvania. Furthermore, as Delaware Trust states in its answering brief and plaintiffs have not countered in their reply brief, three of the brokers in New Jersey are located within forty miles of Wilmington, Delaware; the two Pennsylvania brokers are located within twenty miles of Wilmington; and the final New Jersey broker is approximately 100 miles from Wilmington.

DISCUSSION

I. THE STANDARD FOR CLASS CERTIFICATION UNDER FED.R.CIV.P. 23

The standard for when an action may be certified as a class action is set forth in Fed.R.Civ.P. 23. Plaintiffs must first demonstrate that each of the four prerequisites of Rule 23(a) is satisfied, and then show that the action also meets the requirements of one of the three subsections of Rule 23(b). Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 163, 94 S.Ct. 2140, 2145, 40 L.Ed.2d 732 (1974). The four threshold requirements of Rule 23(a) are as follows:

(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.

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Bluebook (online)
136 F.R.D. 372, 1991 U.S. Dist. LEXIS 5588, 1991 WL 65375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christiana-mortgage-corp-v-delaware-mortgage-bankers-assn-ded-1991.