United States District Court, M.D. Florida, Orlando Division
CLARK STEWART, on behalf of himself and all others similarly situated . Plaintiffs,
FLORIDA COMMUNITY LAW GROUP, P.L., Defendant.
REPORT AND RECOMMENDATION
C. IRICK, UNITED STATES MAGISTRATE JUDGE
cause comes before the Court for consideration without oral
argument on the following motion:
MOTION: JOINT MOTION FOR CONDITIONAL CLASS
CERTIFICATION AND PRELIMINARY APPROVAL OF CLASS ACTION
SETTLEMENT AGREEMENT (Doc. 29).
FILED: May 31, 2019
THEREON it is RECOMMENDED
that the motion be GRANTED.
initiated this case pursuant to the Fair Debt Collection
Practices Act (FDCPA) individually and on behalf of other
similarly situated. Doc. 1. This matter is before the Court
because the parties jointly moved for conditional class
certification and preliminary approval of the class action
settlement agreement (the Motion). Doc. 29.
stated, the facts according to the Complaint are as follows.
Defendant filed a lawsuit against Plaintiff, a consumer, to
collect a debt in October 2018. Id. at 3-4. The
“lawsuit included a document entitled ‘Notice
required by the Fair Debt Collection Practices
Act.'” Id. at 4. Plaintiff alleges that
although it was Defendant's initial communication with
Plaintiff, the “lawsuit does not explain the apparent
contradiction between the requirement to respond within
twenty days and the consumer's right to dispute the debt
within thirty days.” Id. Alternatively,
Plaintiff alleges that the notice was improperly included
with the lawsuit because it was a legal pleading and not the
initial communication with Plaintiff with respect to the
debt. Id. Plaintiff claims that the notice
misleadingly states: “This law firm may be
deemed a ‘debt collector' under the Fair Debt
Collection Practices Act. Any and all information obtained
during the prosecution of this lawsuit may be used
for all purposes of collecting a debt.” Id.
(emphasis added in the original). Id. at 5.
Plaintiff alleges that a less sophisticated consumer would be
unsure whether Defendant was a debt collector under the
notice also states that “[t]he amount of the debt is
stated in paragraph 9 of the Complaint attached hereto,
” which identifies the debt as “$3, 290.97
exclusive of interest, costs, and attorney's fees.”
Id. Plaintiff complains that the
“lawsuit” does not identify any amount of
interest, costs, or attorney's fees, and “does not
meaningfully convey the amount of the debt.”
alleges that Defendant's practice of providing the notice
in this manner violates the FDCPA.
April 25, 2019, the parties filed a Notice of Settlement
which provided that the parties have reached a proposed
settlement on a class wide basis. Doc. 25. The parties now
move for class certification and preliminary approval of the
class action settlement agreement (Agreement), which is
attached to the Motion, along with a proposed notice to class
members (Class Notice). Doc. 29, 29-1, 29-2. The Motion
provides that Defendant denies Plaintiff's allegations,
but still joins in the request for certification solely for
settlement purposes. Doc. 29 at 4.
parties move for the Court to: (1) preliminarily certify a
class of individuals for settlement purposes as proposed in
the attached settlement agreement; (2) preliminarily approve
the Agreement pursuant to Rule 23 of the Federal Rules of
Civil Procedure; (3) conditionally certify Plaintiff as the
named representative of the class; (4) conditionally certify
Plaintiff's attorney as counsel for the class; (5)
approve the form of the Class Notice and proposed method of
distribution; and (6) set a final fairness hearing to
determine whether the proposed settlement is fair, adequate,
The Settlement Agreement
The parties have agreed to the conditional certification of
the following settlement class:
All individuals in the State of Florida to whom, during the
Class Period and in an attempt to collect a debt, Defendant
served a notice based on the Template.
Doc. 29-1 at 4.
is defined in the Agreement as “the standardized notice
used by Defendant to collect consumer debts containing
language substantially similar to the notice served on
Plaintiff and attached as Exhibit A to the original complaint
filed in the above-captioned case.” Id. at 7.
“Class Period” is then defined as December 7,
2017 to December 7, 2018. Id. at 5.
Agreement provides that Defendant will establish a fund in
the amount of $6, 504.26 to distribute evenly to all members
of the class who do not exclude themselves from the proposed
settlement. Doc. 29-1 at 10-11. The Motion explains that the
Agreement proposes to certify a class of 191 individuals.
Doc. 29 at 4. The Agreement also provides that Defendant will
pay Plaintiff $1, 000 in statutory damages under the FDCPA,
which is described as the amount he could have received by
proceeding with his claims individually, and $500 for
consideration for his service to the class. Id. at
11. There is also a provision for reasonable attorney fees
and costs in an amount to be determined by the Court, and $1,
000 to the class counsel for non-litigation expenses related
to class administration. Id.
class may be certified solely for purposes of settlement
where a settlement is reached before a litigated
determination of the class certification issue."
Diakos v. HSS Sys., LLC, 137 F.Supp.3d 1300, 1306
(S.D. Fla. 2015) (internal quotation marks omitted). A party
seeking to certify a class action - be it contested or not -
bears the burden of demonstrating that: 1) the named
plaintiffs have standing to raise each class claim,
Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266,
1279-80 (11th Cir. 2000); 2) the proposed class is adequately
defined and clearly ascertainable, Carriuolo v. Gen.
Motors, Co., 823 F.3d 977, 984 (11th Cir. 2016); 3) the
putative class meets the numerosity, commonality, typicality,
and adequacy of representation requirements set forth in
Federal Rule of Civil Procedure 23(a), Valley Drug Co. v.
Geneva Pharms., Inc., 350 F.3d 1181, 1187-88 (11th Cir.
2003); and 4) the putative class meets at least one of the
three requirements set forth in Federal Rule of Civil
Procedure 23(b), Pickett v. Iowa Beef Processors,
209 F.3d 1276, 1279 (11th Cir. 2000). The Court has broad
discretion in determining whether to certify a class and may
do so only after conducting a "rigorous analysis"
to ensure that the moving party has satisfied all the
necessary requirements for certification. Sacred Heart
Health Sys. v. Humana Military Healthcare Servs., 601
F.3d 1159, 1169 (11th Cir. 2010).
establish Article III standing, a plaintiff must show that:
(1) he suffered an injury in fact; (2) the injury at issue is
fairly traceable to the defendant's alleged conduct; and
(3) the injury is likely to be redressed by a favorable
judicial decision. Spokeo, Inc. v. Robins, 136 S.Ct.
1540 (2016). “To have standing to represent a class, a
party must not only satisfy the individual standing
prerequisites, but must also ‘be part of the class and
possess the same interest and suffer the same injury as the
class members.” Mills v. Foremost Ins. Co.,
511 F.3d 1300, 1307 (11th Cir. 2008) (quoting
Prado-Steiman, 221 F.3d at 1279).
has standing to bring his claims against Defendant.
Specifically, as discussed in this Report, Plaintiff alleges
that Defendant, in connection with the collection of a debt,
filed a lawsuit against Plaintiff requiring him to respond
within 20 days. Doc. 29 at 2. Defendant included a notice in
the “lawsuit” that Plaintiff alleges violates the
FDCPA. Id. at 3. Plaintiff seeks to conditionally
certify a class of individuals who received the “notice
based on the template” which included “language
substantially similar to the notice served on
Plaintiff.” Doc. Id. at 4.
undersigned finds that the allegations are sufficient to
establish that Plaintiff suffered an injury in fact as to
each claim, that his injury is traceable Defendant's
conduct, and Plaintiff's injuries are likely to be
redressed by a favorable judicial decision. Such allegations
establish that Plaintiff possesses the same interest and
suffered the same injury as the putative class as defined in
the Agreement. See Mills, 511 F.3d at 1307.
Accordingly, the undersigned finds that Plaintiff has
standing to sue.
Adequately Defined and Clearly Ascertainable
must establish that the proposed class is adequately defined
and clearly ascertainable. Carriuolo, 823 F.3d at
984. “An identifiable class exists if its members can
be ascertained by reference to objective criteria.”
Riffle v. Convergent Outsourcing, Inc., 311 F.R.D.
677, 680 (M.D. Fla. 2015). Such objective criteria should be
administratively feasible, meaning “that identifying
class members is a manageable process that does not require
much, if any, individual inquiry.” Id.
the parties have attached Russell S. Thompson, IV's
affidavit to the Motion. Doc. 29-3. Mr. Thompson,
Plaintiff's attorney, explains that Defendant produced
financial records and information related to the putative
class members. Id. at 3. Mr. Thompson states that
Defendant also produced a list of all class members, which
included each of the consumers' names, addresses, and
CaseIDs. Id. Mr. Thompson attests to the fact that
after review he determined that the class list and financial
statements appear to be authentic. Id. Mr. Thompson
avers that “[b]ased on [his] review of the information
and documents produced by Defendant, [he] determine[d] that
the stated class size was in accordance with Defendant's
representations.” Id. Mr. Thompson then
provides that he identified 191 putative class members based
on the putative class member list. Id. at 4.
due consideration, the undersigned finds that the parties
have sufficiently explained how the parties identified the
class such that it is adequately defined and clearly
ascertainable. The definition of the class contains
sufficient objective criteria that would allow individuals to
determine membership. Further, Mr. Thompson's affidavit
explains how the parties identified the 191 members in an
administratively feasible manner.
Rule 23 (a)
Rule 23(a)(1), the plaintiff must show that the settlement
class is so numerous that joinder is impracticable.
See Rule 23(a)(1). The Eleventh Circuit has held
that the numerosity requirement is "a generally low
hurdle" and "less than twenty-one is inadequate
[and] more than forty [is] adequate ..." Ve ...