D'Alauro v. GC Services Ltd. Partnership

168 F.R.D. 451, 36 Fed. R. Serv. 3d 885, 1996 U.S. Dist. LEXIS 14611, 1996 WL 563376
CourtDistrict Court, E.D. New York
DecidedSeptember 30, 1996
DocketNo. CV 95-1901
StatusPublished
Cited by77 cases

This text of 168 F.R.D. 451 (D'Alauro v. GC Services Ltd. Partnership) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D'Alauro v. GC Services Ltd. Partnership, 168 F.R.D. 451, 36 Fed. R. Serv. 3d 885, 1996 U.S. Dist. LEXIS 14611, 1996 WL 563376 (E.D.N.Y. 1996).

Opinion

MEMORANDUM DECISION and ORDER

SPATT, District Judge.

This is a case brought pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et. seq. (“FDCPA”) by the named plaintiff, Mary Labbate-D’Alauro, (“Lab-bate-D’Alauro”) on behalf of herself and others similarly situated against the defendant GC Services Limited Partnership (“GC”).

The complaint, filed on May 10,1995, alleges that Labbate-D’Alauro received at least two debt collection notices from GC that violate provisions of the FDCPA It is estimated by the parties that each of these notices was sent to approximately 7,500 individuals within New York State. The complaint alleges that the defendant engaged in false and deceptive practices in the attempt to-collect alleged consumer debts. Presently before the Court is the plaintiffs motion for class certification.

I. BACKGROUND

A. The parties.

According to the complaint, LabbateD’Alauro is a resident of New York. GC is identified as a limited partnership doing business in the state of Texas engaged in the business of debt collection for various business entities. GC does not dispute that it mailed debt collection letters to LabbateD’Alauro. It appears, based on the parties’ statements in their motion papers, that identical notices were forwarded to an estimated 7,500 people within New York State during the period from May 10, 1994 through May 10,1995.

B. The defendant’s debt collection procedures.

According to GC, it employs both standardized form letters and telephone calls in its efforts to collect debts owed to its clients. GC offers to its clients a selection of debt collection letters from which a series of mailings is chosen by the client and sent to the client’s debtors. The series of mailings varies depending on the client. In addition, some debtors receive telephone calls from GC requesting payment. Typically, a combination of letters and telephone calls is employed by GC in an effort to collect debts.

C. The complaint.

On May 10, 1995, the named plaintiff filed the complaint commencing this action to recover for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. Specifically, the plaintiff alleges that the defendant: (1) used simulated telegrams that tended to deceive and mislead debtors into a false sense of urgency regarding their alleged debts, in violation of 15 U.S.C. § 1692e; (2) failed to disclose in all communi[454]*454cations that defendant was attempting to collect a debt and that any information obtained would be used for that purpose, as required by 15 U.S.C. § 1692e(ll); (3) engaged in conduct the natural consequence of which was to harass, oppress and abuse debtors in connection with the collection of an alleged debt, in violation of 15 U.S.C. § 1692d; and, (4) used false, deceptive and misleading representations and collection means, in violation of 15 U.S.C. § 1692e.

Labbate-D’Alauro now moves for class certification pursuant to Fed.R.Civ.P. 23, and proposes the following class:

All persons with addresses within New York State to whom GC Services sent a communication or communications in the form of the May 10, 1995 and/or May 31, 1995 collection notices sent to Mary Lab-bate-D’Alauro in an attempt to collect a debt incurred for person, family, or household purposes, as reflected by defendant’s records, on or after May 10,1994.

II. DISCUSSION

A. The standard guiding Rule 23 motions.

Federal Rule of Civil Procedure 23, governing class certification, specifies that:

[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (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.

Fed.R.Civ.P. 23(a). Once these criteria have been satisfied, a class will be certified if it meets one of the following additional conditions imposed by Fed.R.Civ.P. 23(b): (1) separate actions would create a risk of inconsistent adjudications; (2) injunctive or declaratory relief is sought; or (3) common questions predominate over the individual questions and a class action is superior to other methods of bringing the suit.

GC apparently does not dispute the plaintiffs contention that “the class is so numerous that joinder of all members is impracticable” and, therefore, the numerosity requirement of Fed.R.Civ.P. 23(a)(1) is met. Rather, the defendant argues, that should a class be certified, it should be national, rather than regional, in scope. GC also challenges the plaintiffs proposal with regard to each of the remaining criteria. The Court will examine each of the remaining criteria in turn.

Before beginning the analysis, however, the Court recognizes that on a motion for class certification, in which it is the plaintiffs burden to demonstrate compliance with Rule 23’s requirements, the Court should accept as true the plaintiffs allegations concerning the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152-53, 40 L.Ed.2d 732 (1974) (Rule 23 does not “give a court authority to conduct a preliminary inquiry into the merits of a suit to determine whether it may be maintained as a class action”); Adames v. Mitsubishi Bank, Ltd., 133 F.R.D. 82, 87-88 n. 1 (E.D.N.Y.1989). However, the Court’s determination of class certification motion may involve some considerations related to the factual and legal issues that comprise the plaintiffs cause of action. Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). Further, Rule 23 should be given “broad, rather than restrictive, interpretation” by the Court, Adames, 133 F.R.D. at 88, “to favor maintenance of class actions.” King v. Kansas City Southern Indus.,

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168 F.R.D. 451, 36 Fed. R. Serv. 3d 885, 1996 U.S. Dist. LEXIS 14611, 1996 WL 563376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalauro-v-gc-services-ltd-partnership-nyed-1996.