Walker v. Calusa Investments, LLC

244 F.R.D. 502, 2007 U.S. Dist. LEXIS 53926, 2007 WL 2121246
CourtDistrict Court, S.D. Indiana
DecidedJuly 23, 2007
DocketNo. 1:06-cv-508-LJM-WTL
StatusPublished
Cited by1 cases

This text of 244 F.R.D. 502 (Walker v. Calusa Investments, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. Calusa Investments, LLC, 244 F.R.D. 502, 2007 U.S. Dist. LEXIS 53926, 2007 WL 2121246 (S.D. Ind. 2007).

Opinion

ORDER

McKINNEY, Chief Judge.

This cause is before the Court on Plaintiffs, Todd Walker (“Walker”), Motion for Class Certification. Walker seeks certification of that class of persons with Indiana addresses to whom Defendant, Calusa Investments, LLC, d/b/a Next Day Loan (“Calusa”), sent material in a form similar to the mailer attached to the Complaint between March 30, 2004, and April 19, 2006. Walker would exclude from the class those individuals who responded to the mailer and received a loan. Walker seeks certification pursuant to Federal Rule of Civil Procedure 23(b)(3) (“Rule 23(b)(3)”). In conjunction with its response to the Motion for Class Certification, Calusa filed a motion entitled Motion for Clarification and/or Amendment of Court’s February 27, 2007[,] Order. In addition to relying on its motion to clarify and/or amend, Calusa argues that class certification should be denied because Walker is not an adequate [504]*504representative and his claims are not typical of those of the proposed class members.

Both motions are fully briefed and ripe for ruling. For the reasons stated herein, the Court DENIES Calusa’s Motion for Clarification and/or Amendment of Court’s February 27, 2007[,] Order and GRANTS Walker’s Motion for Class Certification.

I. BACKGROUND

Although a court generally will make a determination on the suitability of class certification based on the facts alleged in the complaint, the Seventh Circuit has stated: “[A] judge should make whatever factual and legal inquiries are necessary under Rule 23.” Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir.2001). With that principle in mind, the Court will draw upon the facts alleged in the Complaint and Answer, Walker’s Motion for Class Certification, Calusa’s response to the motion, and, where appropriate, the declarations and attached exhibits submitted by the parties.

Walker, the named plaintiff in this case, alleges that he received a mailer from Calusa that stated that it was a “ ‘prescreened’ offer of credit based on information in [his] credit report” and that listed an amount of $102,850.00 on a faux check. CompL, IT 7 and Ex. A. Walker contends that a Calusa sent a similar mailer to more than 200 Indiana residents. See id., It 16; see also Answer, Hit 6, 16. Calusa admits that it prescreened “prospective borrowers” based upon information it received from consumer reporting agencies and that it caused the mailers to be sent to Walker and other Indiana residents. See Answer, ITU 9-10; Shumway Decl., 11114-8,10. Calusa concedes that roughly 27,406 individuals with Indiana mailing addresses received similar mailers listing an amount of $102,850.00. See Shumway Decl., 1f 14. Calusa further admits that other consumers in Indiana received mailers with amounts ranging from $102,850.00 up to $475,000.00. See id., K11.

Walker contends that Calusa accessed his credit report and the putative class members’ credit reports without authorization and without any permissible purpose under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. See Compl,. HIT 18-20, 26. More specifically, Walker argues that the mailer does not qualify as a “firm offer of credit” within the meaning of FCRA and that Calusa willfully violated FCRA. See id., KIT 28-29. The Court previously denied Calusa’s Motion for Judgment on the Pleadings based on its contention that the mailer constituted a firm offer of credit. See February 27, 2007, Order on Def.’s Mot. for J. on the Pleadings (Docket No. 48). Walker seeksj inter alia, statutory damages permitted under 15 U.S.C. § 1681n, which range from $100.00 to $1000.00. See Comph, K 30.

II. STANDARDS FOR CLASS CERTIFICATION

Certification of a class is governed by Rule 23. The propriety of class certification does not depend on the outcome of the suit or on whether a party will prevail on the merits but whether the requirements of Rule 23 are met. See Eisen v. Carlisle, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Chavez v. Ill. State Police, 251 F.3d 612, 620 (7th Cir.2001). To show that class certification is justified in this case, Walker must first satisfy the four requirements of Rule 23(a). See Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir.2000); Mira v. Nuclear Measurements Corp., 107 F.3d 466, 475 (7th Cir.1997). The prerequisites in Rule 23(a) are:

(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.

Fed.R.Civ.P. 23(a).

Once the Court determines that Walker has satisfied these prerequisites, then the Court must determine whether he meets one or more of the requirements of Rule 23(b). See Williams, 204 F.3d at 760; Retired Chi. Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). Because Walker seeks certification pursuant to Rule 23(b)(3), he must demonstrate that common question pre[505]*505dominate and that class action will be superi- or to other available methods of resolving the controversy. See Fed.R.Civ.P. 23(b)(3).1

The Court will address whether Walker has met the prerequisites to class certification defined by Rule 23(a); it will then turn to his arguments with respect to Rule 23(b) if necessary.

III. DISCUSSION

A. CALUSA’S MOTION TO CLARIFY AND/OR AMEND

Before turning to an analysis under Rule 23, the Court addresses Calusa argument that the Court’s February 27, 2007, Order should be clarified or amended. Calusa relies in part on this argument to support its contention that class certification is inappropriate. Specifically, Calusa asserts that the Court improperly decided the merits on Walker’s liability claim by concluding that the mailer was not a firm offer. Calusa complains that the Court’s Order deprived Calusa of the opportunity to seek summary judgment on this issue “based on the evidence adduced through discovery.” Calusa’s Mem. in Opp. at 19.

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244 F.R.D. 502, 2007 U.S. Dist. LEXIS 53926, 2007 WL 2121246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-calusa-investments-llc-insd-2007.