Swanson v. Mid Am, Inc.

186 F.R.D. 665, 1999 U.S. Dist. LEXIS 14296, 1999 WL 269101
CourtDistrict Court, M.D. Florida
DecidedMarch 23, 1999
DocketNo. 97-1908-T-25C
StatusPublished
Cited by25 cases

This text of 186 F.R.D. 665 (Swanson v. Mid Am, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swanson v. Mid Am, Inc., 186 F.R.D. 665, 1999 U.S. Dist. LEXIS 14296, 1999 WL 269101 (M.D. Fla. 1999).

Opinion

ORDER

ADAMS, District Judge.

THIS CAUSE is before the Court on Plaintiffs Motion for Class Certification (Dkt. 13), and the parties’ supplemental memoranda regarding certification (Dkts. 63, 64).1 The Court, having reviewed said motion, the record, and otherwise being fully advised, finds as follows:

I. BACKGROUND

In August, 1996, Plaintiff Greg Swanson received a notice on the letterhead of “CCB Services,” stating that Plaintiff owed $235.50 to the Sarasota County Fire Department for ambulance service. Defendants mailed approximately 1200 similar form notices to other Florida residents. Plaintiff subsequently filed this class action seeking declaratory judgment and damages against Defendant MID AM, INC., d/b/a “CCB Services,” “C.C.B. Services,” “Lucas County Credit Bureau Inc.,” and MID AM RECOVERY SERVICES, INC. for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Plaintiffs single count complaint alleges that the notice issued by Defendants contradicts and overshadows the thirty day period validation notice in violation of 15 U.S.C. § 1692g(a) and e(10).

II. CLASS CERTIFICATION

Plaintiff seeks to certify a class composed of:

a. all persons with addresses in the State of Florida to whom Defendant sent collection letters in the form of Exhibit A;

b. which letters were not returned undelivered by the U.S. Post Office;

c. in connection with attempts to collect debts which are shown by Defendants’ records to be primarily for personal, family, or household purposes, e.g.— medical services;

d. during the period one year prior to the date of filing this action.

(Dkt. 13). To obtain class certification, Plaintiff must demonstrate that the proposed class meets the general class certification requirements set forth in Fed.R.Civ.P. 23(a). See Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992). The requirements are referred to as (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. See Fed.R.Civ.P. 23(a). After determining that these prerequisites have been met, the Court must then determine which, if any, form of class action is appropriate pursuant to Rule 23(b).

A. Rule 23(a) Requirements

1. Numerosity

In support of numerosity, Plaintiff alleges that based on the use of “form letters” it is possible for the Court to conclude that the class is so numerous that joinder of all members is impracticable. (See Dkts. 1, 13); see Fed.R.Civ.P. 23(a)(1). As of the date of Plaintiffs motion, Plaintiff apparently had not ascertained through discovery the number of collection letters that had been mailed to potential class members, and was unable to approximate the number of potential class members. Although Plaintiff need not state the precise number of potential class members, Plaintiff has subsequently learned that approximately 1200 letters similar to that received by Plaintiff were mailed to persons with Florida addresses between August 1996 and August 1997. (See Dkt. 39). Thus the Court finds that numerosity has been satisfied.

2. Commonality

Plaintiff contends that common issues predominate because Defendants sent the same form letter to all members of the class. Defendants, on the other hand, argue that class members must allege and prove individ[668]*668ualized facts, such as whether the underlying debts were nonbusiness debts, and whether any plaintiffs read, responded to, or understood the letters. (Dkt. 29). To establish commonality under Rule 23 in a FDCPA action, however, a plaintiff need not show that the underlying transactions are consumer transactions at the class certification stage. See Wilborn v. Dun & Bradstreet Corp., 180 F.R.D. 347, 357 (N.D.Ill.1998). Additionally, the Court need not determine whether the named plaintiff or other putative plaintiffs read or were confused by the notice, as the standard is whether the “least sophisticated consumer” would have been misled. See Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1175 (11th Cir.1985) (adopting the “least sophisticated consumer standard”); c.f. Avila v. Rubin, 84 F.3d 222, 227 (7th Cir. 1996) (plaintiff need not present evidence that consumers were actually misled by the notice, but merely that the notice itself was misleading and contradictory). To establish commonality, it is sufficient that Plaintiff allege that all class members received the same collection letter. See Savino v. Computer Credit, 173 F.R.D. 346, 352 (E.D.N.Y. 1997) ; see also Wollert v. Client Svcs., Inc., 1998 WL 474118 (N.D.Ill.1998). As Plaintiff has shown that approximately 1200 letters of the type received by Plaintiff were mailed between August 1996 and August 1997, Plaintiff has satisfied the requirement of commonality.

3. Typicality

Defendants next contend that Plaintiffs claims are not typical of the class claims, in that factual differences between Plaintiff and the putative class, such as whether Plaintiff read and responded to the notice, preclude a finding of typicality. Typicality is satisfied where the named plaintiffs’ claims “arise from the same event or pattern or practice and are based on the same legal theory” as the claims of the class. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir.1984), cert. denied, 470 U.S. 1004, 105 S.Ct. 1357, 84 L.Ed.2d 379 (1985). As discussed above, Defendants have not raised any factual differences that would bar a finding of typicality. Because Plaintiff alleges that the notice itself was contradictory and misleading to the least sophisticated consumer and Plaintiff as well as the putative class received the notice, the Court finds that typicality has been shown.

4. Adequacy

To satisfy adequacy of representation, named Plaintiff must not have interests agonistic to the rest of the class, and Plaintiffs attorneys must be qualified, experienced, and generally able to conduct the proposed litigation. See Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir.1987). The Declaration of O. Randolph Bragg shows and Defendants concede that Plaintiffs counsel, O. Randolph Bragg, is qualified to conduct class action litigation. (See Dkt. 15).

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Bluebook (online)
186 F.R.D. 665, 1999 U.S. Dist. LEXIS 14296, 1999 WL 269101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swanson-v-mid-am-inc-flmd-1999.