Shirey v. Portfolio Recovery Associates, LLC

• Court: District Court, E.D. Washington
• Decided: August 14, 2019
• Docket: 2:19-cv-00114
• Status: Unknown

Opinion

1 2 FILED IN THE 3 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 Aug 14, 2019 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 TOM SHIREY, 10 No. 2:19-cv-00114-SAB Plaintiff, 11 12 v. ORDER DENYING MOTION TO 13 PORTFOLIO RECOVERY DISMISS 14 ASSOCIATES, LLC, a Virginia 15 corporation, 16 Defendant. 17 Before the Court is Defendant’s Motion to Dismiss, ECF No. 3. The motion 18 was heard without oral argument. Defendant requests the Court dismiss Plaintiff’s 19 claims for violations of the Fair Debt Collection Act, arguing that Plaintiff’s action 20 is time-barred. Plaintiff responds that tolling under American Pipe is appropriate, 21 due to the filing of a substantially similar class action, Bereket v. Portfolio 22 Recovery Associates, LLC, 17-cv-0812, RSM (W.D. Wash. 2018). Defendant 23 argues that Plaintiff cannot avail himself of American Pipe because Plaintiff was 24 not a member of the Bereket class. The issue before the Court is: Does American 25 Pipe tolling apply to an individual action where the Plaintiff’s cause of action was 26 substantially similar to the class complaint, but due to the narrow proposed 27 definition of the class, Plaintiff was not a putative class member? 28 1 FACTUAL BACKGROUND 2 The Bereket complaint was filed on May 24, 2017. In the complaint, the 3 proposed class consisted of Washingtonians who received a collection letter from 4 Defendant regarding a time-barred debt which failed to inform the debtor that 5 partial payment may restart the statute of limitations, where the dunning letter was 6 sent no earlier than a year before the class complaint was filed, and no later than 7 21 days after the filing of the complaint. ECF No. 4, at 11. 8 The collection letter sent to Plaintiff was sent on February 23, 2018, much 9 more than 21 days after the filing of the Bereket complaint. Thus, Plaintiff was not 10 a putative class member as the proposed class was defined in the Bereket 11 complaint. However, when Bereket moved for class certification, on January 19, 12 2018, the proposed class had changed. ECF No. 7-1 at 8. 13 The proposed class at that time was limited to individuals who were sent a 14 specific collection letter (labeled 47M2), regarding a debt that originated from an 15 obligation to Bank of America, where the collection letter was sent from May 24, 16 2016, to the date of the motion for class certification. Id. 17 Under the new proposed class definition, Defendant was not a member, 18 because the collection letter sent to Plaintiff had a different label, was due to a 19 debt that originated from a different bank, and the letter was sent after the date the 20 motion for class certification was filed. 21 The motion for certification was struck, with leave to amend, on March 27, 22 2018. ECF 7-2 at 9. A second motion for class certification was filed on July 17, 23 2018, which had the same definition of a proposed class as the January 19, 2018 24 25 motion. ECF 7-5 at 8. 26 The timeline in this case is crucial. The dunning letter was sent to Plaintiff 27 on February 23, 2018. At that time, the first Bereket motion for class certification 28 was pending. Had Plaintiff reviewed the complaint in Bereket, he would have 1 reason to believe that even if he wasn’t a member, he could have moved to 2 intervene under rule 24 due to the common nexus of law and fact. He also would 3 have noticed that the proposed class had changed from the original complaint to 4 the motion of class certification, but that the proposed plaintiffs in both definitions 5 were sent collection letters from Defendant, for stale debts, without a notice that 6 partial payment on the stale debt could refresh the statute of limitations. 7 On March 27, 2018, the first Bereket motion to certify was struck. From the 8 date of March 27, 2018 until July 17, 2018, the operative definition of the class 9 was the definition contained in the class complaint. That definition lacked the 10 requirements that the original debtor be Bank of America, or that the dunning 11 letter be labeled 47M2. While it contained the temporal limitation that the 12 collection letter be sent before June 14, 2017, Plaintiff could have inferred that the 13 second motion to certify would extend that temporal window, just as the first 14 motion did. 15 ANALYSIS 16 In American Pipe & Construction Company v. Utah, 414 U.S. 538 (1974), 17 the Supreme Court held that if the statute of limitations expires during the 18 pendency of a class action, “the commencement of the original class suit tolls the 19 running of the statute for all purported members of the class who make timely 20 motions to intervene after the court has found the suit inappropriate for class 21 action status.” Id. at 553-54. In Crown, Cork & Seal Company v. Parker, 462 U.S. 22 345 (1983), the Supreme Court expanded on its opinion in American Pipe, ruling 23 that tolling is appropriate not only where plaintiffs sought to intervene in a class 24 25 action, but also where they sought to file an entirely new action as individual 26 plaintiffs. Id. at 349-50, 353-54. 27 The purpose of American Pipe and Crown, Cork & Seal tolling is to limit 28 unnecessary intervention by unnamed putative class members, or secondary 1 individual suits. American Pipe, 414 U.S. at 553. Courts have held that American 2 Pipe tolling applies not only to identical claims, but substantially similar ones, 3 where the class complaint puts the Defendant on notice that the conduct could be 4 the source of litigation. Hatfield v. Halifax PLC, 564 F.3d 1177, 1188 (9th Cir. 5 2009); Tosti v. City of Los Angeles, 754 F.2d 1485, 1489 (9th Cir. 1985). This 6 makes sense, because one of the purposes of American Pipe is to avoid 7 unnecessary intervention, and the standard for intervention is not identicality of 8 issues, but common questions of law or fact. See FRCP 24. 9 Further, in this case, it was not clear that Plaintiff would not have been a 10 member of the class from the period of March 27, 2018 until November 30, 2018, 11 the period from when the first motion to certify was struck till when the second 12 motion to certify was granted. Defendant was objecting to certification in part 13 because of the narrowing of the class by the identity of the debtor and labeling of 14 the collection letter, the very limitations that make Plaintiff not a member of the 15 Bereket class. During this 8-month window, Plaintiff might have intervened, and 16 sought a more expansive class definition. Requiring plaintiffs to intervene in order 17 to seek inclusion in a class to preserve their American Pipe tolling would lead to 18 the very multiplicity of intervenors and actions that American Pipe sought to curb. 19 The purpose of Rule 23 is to promote judicial efficiency by allowing for 20 representative actions while protecting individual interests. Courts are given broad 21 authority in defining classes, to ensure adequate representation and avoid potential 22 class conflicts. See FRCP 23(d). As a result, the contours of a proposed class 23 remain nebulous throughout the maintenance of the class action, but in particular, 24 25 during the period between the filing of the complaint and an order granting or 26 denying certification. 27 // 28 // 1 CONCLUSION 2 In keeping with American Pipe, the statute of limitations is tolled for 3 Plaintiff during the pendency of the Bereket class action. Accordingly, the motion 4 to dismiss is denied. 5 IT IS HEREBY ORDERED: 6 1. Defendant’s Motion to Dismiss, ECF No. 3, is DENIED. 7 2. Defendant SHALL SERVE AND FILE any answer to Plaintiff’s 8 Complaint no later than ten (10) days from the date of this Order. 9 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter 10 this Order and provide copies to counsel. 11 DATED this 14th day of August 2019. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28