Flanigan v. American Finance System of Georgia, Inc.

72 F.R.D. 563, 1976 U.S. Dist. LEXIS 12526

• Court: District Court, M.D. Georgia
• Decided: October 29, 1976
• Docket: Civ. A. No. 76-68-ATH
• Status: Published

Opinion

ORDER

OWENS, District Judge.

Plaintiffs have filed their complaint alleging violations of the Truth In Lending Act, 15 U.S.C. § 1601, et seq., and seeking to proceed not only individually but also as representatives of an unknown but suspected class. Rule 23, Federal Rules of Civil Procedure.

Even prior to service upon defendant this court, pursuant to Rule 23(d), has questioned the propriety of these plaintiffs who are husband and wife, using the discovery provisions of the Federal Rules of Civil Procedure for the purpose of

(1) finding other customers of defendant who may have entered into similar transactions;

(2) generally investigating defendant’s business, its stockholders and its relationship with an insurance company; and

(3) creating a class action out of what appears to the court to be a controversy solely between them and the defendant.

Title 15 U.S.C. § 1640 requires an award of damages and reasonable attorney’s fees to these plaintiffs if they are successful. Other plaintiffs are entitled to the same.

Neither these plaintiffs nor their counsel “ ‘are their brothers’ keepers’. Hormel v. United States, So.D.N.Y., 17 F.R.D. 303, 305. . . . ” Neither “plaintiffs or their counsel have a moral duty to act as unsolicited champions of others . . . Rule 23 should not be used ‘as a device to enable client solicitation.’ Baim and Blank, Inc. v. Warren Connelly Company, So.D.N.Y., 19 F.R.D. 108, 111.” Cherner v. Transitron Electronic Corp., 201 F.Supp. 934, 936 (D.Mass.1962). See also Carlisle v. LTV Electrosystems, Inc., 54 F.R.D. 237 (D.C. Tex.1972).

As this complaint now stands plaintiffs do not demonstrate that they in any way satisfy the basic requirement of Rule 23. Until they do they may not engage in discovery for the purpose of “digging up” information to satisfy Rule 23.

The court will be holding pre-trials in Athens on November 23,1976. If plaintiffs then wish to appear to attempt to show that they should be permitted to pursue class action discovery, let them give written notice to opposing counsel and the court. If they do, the clerk will then notify all counsel of a time for the matter to be heard.