Tripp v. Berman & Rabin, P.A.

310 F.R.D. 499, 2015 U.S. Dist. LEXIS 131341, 2015 WL 5704075
CourtDistrict Court, D. Kansas
DecidedSeptember 29, 2015
DocketCase No. 14-CV-02646-DDC-GEB
StatusPublished
Cited by11 cases

This text of 310 F.R.D. 499 (Tripp v. Berman & Rabin, P.A.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tripp v. Berman & Rabin, P.A., 310 F.R.D. 499, 2015 U.S. Dist. LEXIS 131341, 2015 WL 5704075 (D. Kan. 2015).

Opinion

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

Plaintiff Mary Tripp filed an Amended Motion for Class Certification (Doe. 16), seeking to represent two classes of persons who received form debt collection letters from defendant Berman & Rabin, P.A. (“Berman”) and, for one putative subclass of plaintiffs, such letters from Berman on behalf of Velocity Investments, LLC (“Velocity”). Plaintiff alleges that the form letters sent by defendants did not inform the recipients of the exact amount and character of the debt owed, and, therefore, violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). For the reasons explained below, the Court grants plaintiffs motion.

I. Factual Background

Velocity is a New Jersey limited liability company that purchases portfolios of consumer receivables at a discount and liquidates them through debt collection processes. Berman is a Kansas law firm specializing in the recovery of consumer debts. On January 29, 2014, Berman sent plaintiff a form debt collection letter on behalf of Velocity. That letter described plaintiffs debt as: “Balance: $10,717.97, $2,959.92 accrued interest and or late charges, attorney fees (where applicable), the exact amount to be determined by agreement between you and us or by a court, 10% interest per annum from April 27, 2011.” Doc. 16-1.

On behalf of the putative classes, plaintiff asserts that defendants’ failure to specify whether the debt included attorneys’ fees and, if so, the amount of those fees violates two provisions of the FDCPA. First, plaintiff contends that defendants have failed to state accurately the total amount of the debt, as 15 U.S.C. § 1692g(a)(1) requires. Second, plaintiff asserts that defendants misstated the character of the debt and thus violated 15 U.S.C. § 1692e(2)(A). To support her claims, plaintiff cites Kalebaugh v. Berman & Rabin, P.A, 43 F.Supp.3d 1215 (D.Kan.2014). There, our Court held that a form collection letter, also sent by Berman and containing the same language as the letter received by plaintiff here, violated both § 1692g(a)(1) and § 1692e(2)(A). See id. at 1227-28.

II. Legal Standard

“The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). The Court has considerable discretion when deciding whether to certify a class action. Tabor v. Hilti, Inc., 703 F.3d 1206, 1227 (10th Cir.2013) (because class certification involves “intensely practical considerations,” decision rests within discretion of trial court); see also Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir.2010) (district courts are in the best position to consider the most fair and efficient procedure for litigation); Johns v. Bayer Corp., 280 F.R.D. 551, 555 (S.D.Cal.2012) (quoting Ballard v. Equifax Check Serv., Inc., 186 F.R.D. 589, 600 (E.D.Cal.1999) (“class action certifications to encourage compliance with consumer protection laws are ‘desirable and should be encouraged’ ”)). But when exercising this discretion, district courts must conduct a “rigorous analysis” and decide whether the putative class satisfies the requirements of Rule 23. Comcast, 133 S.Ct. at 1432; Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011).

The elements of the class certification standard are (1) numerosity, (2) commonality» (3) typicality, and (4) adequate represen[503]*503tation, plus one of the requirements of Rule 23(b)(1) through (3). See Fed.R.Civ.P. 23. Plaintiff seeks certification under Rule 23(b)(3). Rule 23(b)(3) also requires plaintiff to demonstrate that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”

Rule 23 “ ‘does not set forth a mere pleading standard.’ ” Comcast, 133 S.Ct. at 1432 (quoting Dukes, 131 S.Ct. at 2551). As the party requesting class certification, plaintiff bears the burden of “ ‘affirmatively demonstrating]’ ” compliance with the rule’s requirements. Id. (quoting Dukes, 131 S.Ct. at 2551). Plaintiff “must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Dukes, 131 S.Ct. at 2551. To decide whether plaintiff has met her burden, the Court “must accept the substantive allegations of the complaint as true,” but it does not “ ‘blindly rely on conclusory allegations which parrot Rule 23.’” Shook v. El Paso Cty., 386 F.3d 963, 968 (10th Cir.2004) (quoting J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n. 7 (10th Cir.1999)). “[T]he Court is not limited to the pleadings but may ‘probe behind the pleadings’ and examine the facts and evidence in the case.” Tabor, 703 F.3d at 1227-28 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)); see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.2011) (rigorous analysis requires judgments about the persuasiveness of evidence). “[A]ctual, not presumed, conformance with Rule 23(a)” is required. Dukes, 131 S.Ct. at 2551 (quoting Falcon, 457 U.S. at 160, 102 S.Ct. 2364).

The Court’s “rigorous analysis” “[f]requently ... [will] entail some overlap with the merits of the plaintiffs underlying claim.” * Dukes, 131 S.Ct. at 2551. But the Court should not conduct a mini-trial to determine whether the class, if certified, actually could prevail on the merits of their claims. See Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1194-95, 1201, 185 L.Ed.2d 308 (2013); Dukes, 131 S.Ct. at 2552 n. 6.

III. Analysis

A. Class Definitions

“ ‘Defining the class is of critical importance because it identifies the persons (1) entitled to relief, (2) bound by a final judgment, and (3) entitled under Rule 23(c)(2) to the ‘best notice practicable’ in a Rule 23(b)(3) action.’ ” Sibley v. Sprint Nextel Corp., 254 F.R.D. 662, 670 (D.Kan.2008) (quoting Manual for Complex Litigation § 21.222 (4th ed.2004)).

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310 F.R.D. 499, 2015 U.S. Dist. LEXIS 131341, 2015 WL 5704075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tripp-v-berman-rabin-pa-ksd-2015.