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Stewart v. Florida Community Law Group, P.L.

United States District Court, M.D. Florida, Orlando Division

August 26, 2019

CLARK STEWART, on behalf of himself and all others similarly situated . Plaintiffs,
v.
FLORIDA COMMUNITY LAW GROUP, P.L., Defendant.

          REPORT AND RECOMMENDATION

          DANIEL C. IRICK, UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Background

         A. Plaintiff's Allegations

         Plaintiff 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.

         Briefly 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 FDCPA. Id.

         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.” Id.

         Plaintiff alleges that Defendant's practice of providing the notice in this manner violates the FDCPA.

         B. The Motion

         On 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.

         The 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, and reasonable.

         C. 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.

         “Template” 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.

         The 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.

         II. Analysis

         A. Class Certification

         "A 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).

         1. Standing

         To 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).

         Plaintiff 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.

         The 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.

         2. Adequately Defined and Clearly Ascertainable

         Plaintiff 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.

         Here, 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.

         Upon 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.

         3. Rule 23 (a)

         i. Numerosity

         Under 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 ...


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