Clark v. Retrieval Masters Creditors Bureau, Inc.

185 F.R.D. 247, 1999 U.S. Dist. LEXIS 3498, 1999 WL 160824
CourtDistrict Court, N.D. Illinois
DecidedMarch 15, 1999
DocketNo. 98 C 4046
StatusPublished
Cited by5 cases

This text of 185 F.R.D. 247 (Clark v. Retrieval Masters Creditors Bureau, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Retrieval Masters Creditors Bureau, Inc., 185 F.R.D. 247, 1999 U.S. Dist. LEXIS 3498, 1999 WL 160824 (N.D. Ill. 1999).

Opinion

MEMORANDUM OPINION AND ORDER

BUCKLO, District Judge.

Plaintiff Michael Clark filed a class action complaint against defendant Retrieval Masters Creditors Bureau, Inc. (“RMCB”), doing business as American Medical Collection Agency (“AMCA”), alleging violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). Mr. Clark moves for class certification. RMCB opposes class certification and moves to dismiss the complaint for failure to state a claim. For the reasons set forth below, the motion for class certification is granted and the motion to dismiss is denied.

Motion for Class Certification

In evaluating a motion for class certification, I accept the allegations in support of certification as true and do not examine the merits of the case. Hardin v. Harshbarger, 814 F.Supp. 703, 706 (N.D.Ill.1993) (citations omitted). To obtain certification, a plaintiff must satisfy the requirements of Federal Rule of Civil Procedure 23. Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir.1993). Under Rule 23(a), the plaintiff must meet the prerequisites of numerosity, commonality, typicality, and adequacy of representation. Id. In addition, one of the three subsections of Rule 23(b) must be satisfied. Mr. Clark seeks certification under Rule 23(b)(3), which requires that common questions of law or fact predominate over questions affecting only individual members, and that a class action be superior to other methods of adjudicating the controversy.

Mr. Clark moves for certification of a class defined as all Illinois residents who, on or after June 1, 1997,1 were sent a form letter like the one (dated September 2,1997) that RMCB sent Mr. Clark. The letters are limited to those not returned by the postal service that are attempts to collect a medical or health care debt.

Rule 23(a)

RMCB does not dispute that Mr. Clark has met the first and second requirements of Rule 23(a). RMCB concedes that the number of class members would total more than 1,000. (Resp. to Disc. Requests 1119.) Hence, the proposed class is so numerous that joinder of all members would be impracticable. Fed.R.'Civ.P. 23(a)(1). There are also questions of law or fact common to the class. Fed.R.Civ.P. 23(a)(2). All the class members allegedly were sent the same form letter by RMCB. The central question of law is whether that letter violated the FDCPA. That question refers to standardized conduct on the part of RMCB toward members of the proposed class and thus presents a common nucleus of operative fact, Franklin v. City of Chicago, 102 F.R.D. 944, 949 (N.D.Ill.1984), which generally is enough to satisfy the commonality requirement of Rule 23(a)(2), Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir.1992) (citation omitted).

Rule 23(a)(3) requires that the claims or defenses of the representative par[249]*249ties be typical of the class as a whole. “A plaintiffs 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.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983) (citations omitted). Mr. Clark’s claim clearly arises from the same event or course of conduct (sending collection letters) that gives rise to the other class members’ claims and is based on the same legal theory (the letter violates the FDCPA).

However, RMCB claims the typicality requirement has not been met. RMCB notes Mr. Clark could not recall incurring the debt at issue (to Quest Diagnostics, formerly Corning Clinical Laboratories), and argues he thus cannot show it was a consumer debt as is required by the FDCPA. 15 U.S.C. § 1692a(5). Mr. Clark’s claim therefore, it is argued, is not typical of the class. RMCB has a unique defense against him, and defenses that are “peculiar to the named plaintiff or a small subset of the plaintiff may destroy the required typicality of the class.” J.H. Cohn & Co. v. American Appraisal Associates, Inc., 628 F.2d 994, 999 (7th Cir. 1980). However, typicality will be destroyed only if such defenses are likely to usurp a significant portion of the litigant’s time and energy, distracting him from representing the interests of other class members. In re CBC Companies Collection Letter Litig., 181 F.R.D. 380, 385 (N.D.Ill.1998) (quoting Beasley v. Blatt, No. 93 C 4978, 1994 WL 362185, at *3 (N.D.Ill. July 11, 1994)). That is not the case here. RMCB’s defense is unlikely to become a major focus of the litigation. See Koos v. First Nat’l Bank, 496 F.2d 1162, 1164 (7th Cir.1974). The debt in question allegedly was owed for laboratory tests apparently performed at a hospital, (Compl. 117; Clark Dep. at 16), and Mr. Clark testified it could not have been a business debt because he does not own a business, (Clark Dep. at 52). An examination of the creditor’s and the hospital’s records should resolve the question of whether the debt was business or personal. See 15 U.S.C. § 1692a(5).

RMCB also claims Mr. Clark denies owing the. debt, and contends that amounts to a unique defense that defeats typicality. That argument also is without merit. First, it is not clear that Mr. Clark denies owing the debt. He testified he did not remember incurring it and did not know what it was for, (Clark Dep. at 15-16), but nowhere in his deposition does he expressly deny owing the money. Further, this defense is one Mr. Clark could use against RMCB, not the other way around. (Resp. to Mot. for Class Certification at 4-5, 8.) In such a case, where the defense is not one Mr. Clark would have to contend against, it is unlikely to usurp a significant portion of his time or to distract him from representing the class interests.2 I find Mr. Clark has met the typicality requirement.

Rule 23(a)(4) requires that the named plaintiff fairly and adequately protect the interests of the class. One element of that requirement is that the class representative’s counsel must be competent, experienced, qualified, and generally able to conduct the proposed litigation vigorously. Gammon v. GC Services Ltd. Partnership, 162 F.R.D. 313, 317 (N.D.Ill.1995). RMCB challenges the adequacy of representation, suggesting Mr. Clark’s counsel, Edelman & Combs, intentionally delayed filing the instant suit while waiting for a number of other cases against RMCB to settle. As a result, a large number of potential class members allegedly were cut out because of the one-year statute of limitations. See 15 U.S.C.

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Bluebook (online)
185 F.R.D. 247, 1999 U.S. Dist. LEXIS 3498, 1999 WL 160824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-retrieval-masters-creditors-bureau-inc-ilnd-1999.