Deflumer v. Overton

176 F.R.D. 55, 40 Fed. R. Serv. 3d 312, 1997 U.S. Dist. LEXIS 21031, 1997 WL 728082
CourtDistrict Court, N.D. New York
DecidedOctober 21, 1997
DocketNo. 97-CV-157
StatusPublished
Cited by7 cases

This text of 176 F.R.D. 55 (Deflumer v. Overton) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deflumer v. Overton, 176 F.R.D. 55, 40 Fed. R. Serv. 3d 312, 1997 U.S. Dist. LEXIS 21031, 1997 WL 728082 (N.D.N.Y. 1997).

Opinion

MEMORANDUM-DECISION & ORDER

McAVOY, Chief Judge.

I. BACKGROUND

A. Procedural History

Plaintiffs Deflumer and Hazelton initiated this action against a debt collection agency and its individual partners, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). Plaintiffs’ Complaint is separated into seven [57]*57counts, alleging, inter alia, that the defendants violated the FDCPA by threatening legal action on small unpaid debts when, in fact, the defendants had no intention of pursuing legal action, mailing noneomplying summonses to various consumers and placing an improper venue on the noneomplying summonses.

Now before the Court are two motions. First, plaintiffs move to certify a class of all consumers the defendants sent a communication or communications to on or after February 6,1996, threatening legal action to collect a debt incurred for personal, family or household purposes. Second, plaintiffs move- for sanctions, pursuant to Rule 11 of the Federal Rules of Civil Procedure, against defendants’ attorneys for alleged misstatements and misrepresentations contained in the papers submitted to this Court by the defendants in opposition to plaintiffs’ motion for class certification.

For the reasons stated below, plaintiffs’ motion for class certification is DENIED, and plaintiffs’ motion for sanctions is DENIED.

B. Facts

On several occasions, plaintiff Hazelton visited “Medi-Call,” a walk-in medical service operated by Seton Health System, Inc (“Seton”). Seton billed Hazelton a total of $184.25 for these visits. However, Hazelton did not pay the bill, and as a result, Seton referred the matter to Overton, Russell and Doerr for collection.

According to Hazelton, defendants proceeded to send her a series of letters. The first series of letters sent by the defendants stated, in part: “[w]e are the attorneys for Seton Health system and have been requested to remind you of this unpaid bill.” The second series of letters stated, in part: “[i]n view of your failure to pay the amount due to Seton Health Systems, your account has been referred to us for immediate action against you.”

Similarly, plaintiff Deflumer received a bill from Ellis Hospital for services rendered totaling $34, which was referred to the defendants for debt collection. According to Deflumer, he then received an identical series of collection letters as those received by Hazel-ton, threatening suit if he did not pay the debt. Deflumer contends, however, that his debt to Ellis Hospital was discharged in a Chapter 7 bankruptcy proceeding.

Plaintiffs assert that the defendants sent these letters threatening legal suit when, in fact, the defendants had no intention of pursing legal action. Plaintiffs also allege that when they failed to respond to the second series of letters, defendants mailed them a Summons and Affidavit of Mailing. According to the plaintiffs, these papers did not comply with the New York CPLR, as they neither stated that the action was a “Consumer Credit Transaction”, nor came complete with a form for the debtor to sign acceptance of the mailing. Plaintiffs also claim that the affidavit stated that if the debtor did not sign, “[a] process server may be hired.” According to the plaintiffs, however, a process server is never hired by the defendants when small debt amounts are involved.

Additionally, plaintiffs claim that the summonses were never filed, bore no index number and were improperly venued in Rennselaer County. According to the plaintiffs, these official looking documents are intended to coerce payment. Further, plaintiffs contend that these papers evidence that the defendants misrepresented the legal status of their debt in violation of the FDCPA, and that these alleged abusive collection practices are applied by the defendants to numerous other consumers.

11. DISCUSSION
A. Certification of Class Action

Plaintiffs’ class is defined as: All those consumers who were sent a communication or communications similar to the February 12, 1996 collection notice .sent to Hazelton stating “your account has been referred to this office for immediate action against you,” and “[y]our failure to respond to this letter could result in the commencement of legal action and the entry of a judgment if the creditor succeeds,” when no Summons and Complaint were subsequently filed, in an at[58]*58tempt to collect a debt incurred for personal, family or household purposes on or after February 6, 1996. Further, plaintiffs propose to divide the class into three subclasses.

To certify a plaintiff class pursuant to Fed.R.Civ.P. 23(a), the plaintiff must demonstrate that:

(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.

Additionally, a class action must satisfy one of the requirements of Rule 23(b). In evaluating a motion for class certification, the Court accepts as true the substantive allegations in the complaint and does not conduct even a preliminary inquiry into 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).

Plaintiffs assert that they satisfy the four-prong test for class certification under Rule 23(a). Defendants, by contrast, argue that none of the prerequisites for class certification have been met. The Court holds that the plaintiffs have failed to meet the prerequisites for class certification, as the plaintiffs have not satisfied the numerosity requirement.

1. Numerosity

The numerosity requirement for a class action provides that the prospective class be “so numerous that joinder of the members is impracticable.” Fed.R.Civ.P. 23(a)(1). However, “[ijmpracticable does not mean impossible.” Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993). Further, a precise quantification of the plaintiffs’ class is unnecessary, as the court may make “common sense assumptions” to support a finding of numerosity. See, e.g., German v. Federal Home Loan Mortgage, 885 F.Supp. 537, 551 (S.D.N.Y.1995). However, “[a]s the bearers of the burden to show joinder is impracticable, ‘[pjlaintiffs must show some evidence of or reasonably estimate the number of class members.’ ” Id. (quoting Barlow v. Marion County Hosp. Dist., 88 F.R.D. 619, 625 (M.D.Fla.1980)); see also Narwick v. Wexler, 901 F.Supp.

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

Related

Collins v. Olin Corp.
248 F.R.D. 95 (D. Connecticut, 2008)
Petrolito v. Arrow Financial Services, LLC
221 F.R.D. 303 (D. Connecticut, 2004)
Russo v. CVS Pharmacy, Inc.
201 F.R.D. 291 (D. Connecticut, 2001)
Reese v. Arrow Financial Services, LLC
202 F.R.D. 83 (D. Connecticut, 2001)
Martin v. Shell Oil Co.
198 F.R.D. 580 (D. Connecticut, 2000)
Pecere v. Empire Blue Cross & Blue Shield
194 F.R.D. 66 (E.D. New York, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
176 F.R.D. 55, 40 Fed. R. Serv. 3d 312, 1997 U.S. Dist. LEXIS 21031, 1997 WL 728082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deflumer-v-overton-nynd-1997.