United States District Court, E.D. Louisiana
NICOLE REYES, ET AL.
JULIA PLACE CONDOMINIUM HOMEOWNERS ASSOCIATION, INC., ET AL.
ORDER & REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE
October 12, 2016, Magistrate Judge Daniel Knowles conducted a
settlement conference and reported that a partial settlement
was reached. (R. Doc. 785.) The settlement resolved
Plaintiffs' claims against all Defendants except for
Steeg Law and Julia Place Condominiums Homeowners
Association, Inc. (“Julia Place”). Id.
After dismissing several motions as moot, R. Doc. 793, the
Court ordered Julia Place, and any other interested party, to
brief whether “there is a proposed class that satisfies
Rule 23(a)-(b) of the Federal Rules of Civil
Procedure.” (R. Doc. 793 at 2.) Plaintiffs,
Steeg Law,  and Julia Place responded. Steeg Law then
filed a reply to Plaintiffs' response. (R. Doc. 797.)
Plaintiffs filed a reply that addressed arguments raised in
Julia Place's and Steeg Law's response. (R. Doc.
798.) Now, this Court must determine whether the proposed
Fair Debt Collection Practices Act class (“FDCPA
class”) and the Louisiana usury law class (“usury
class”) still satisfy Rule 23's requirements. The
Court shall address these issues in light of the parties'
AND PROCEDURAL BACKGROUND
December 18, 2014, this Court certified an FDCPA monetary
relief class, but declined to certify an FDCPA injunctive
relief class. (R. Doc. 464 at 6, 10.) In certifying the FDCPA
monetary relief class, this Court noted that the class
consisted of twenty-one to fifty class members, including
seven corporate entities, and noted that Plaintiffs may be
able to identify additional class members. See Id.
at 7-9. The Court determined that Plaintiffs satisfied Rule
23's numerosity requirement. See Id. at 9. On
July 29, 2015, this Court held that certain corporate
entities proposed by Plaintiff as FDCPA claimants were not
“natural persons, ” and therefore were unable to
recover under the FDCPA. (R. Doc. 510 at 7.) The Court then
excluded five corporate entities that Plaintiff previously
included in the FDCPA class. Id. In light of the
developments of this case, Steeg Law now contends that there
are fewer than twenty-five members of the FDCPA class. (R.
Doc. 795.) In response, Plaintiffs merely argue that
“[t]he recent settlement did not resolve any component
of the FDCPA class. Therefore, the FDCPA class should not be
affected by the settlement.” (R. Doc. 794 at 1.)
August 20, 2015, this Court certified a narrow usury class,
which was divided into two subclasses. (R. Doc. 529.)
Specifically, the Court certified “a class of past and
present condominium owners who have paid allegedly usurious
late fees. The class shall be divided into two subclasses,
one seeking monetary relief and another seeking injunctive
relief for purported violations of the usury law.”
Id. at 16. On October 2, 2016, this Court narrowed
the injunctive relief class to “members currently
owning condominium units at Julia Place.” (R. Doc. 783
at 13.) In light of the settlement in this case, Julia Place
argues, inter alia, that Rule 23's requirements
are no longer met with respect to the usury class. (R. Doc.
796.) As to Rule 23(a)'s numerosity requirement, Julia
Place argues that Plaintiffs have produced evidence that
there are only eighteen members of the usury class, and no
remaining members entitled to injunctive relief. Id.
at 12, 14. Plaintiffs concede that only eighteen class
members remain as to the usury class; however, Plaintiffs
argue that the Court should maintain the proposed usury class
because the members stand to recover small amounts if they
prevail, and several members are from different states. (R.
Doc. 794 at 2.) The Court shall address whether, in light of
the recent settlement, this action should be maintained as an
FDCPA and usury class action.
trial court overseeing a class action retains the ability to
monitor the appropriateness of class certification throughout
the proceedings and to modify or decertify a class at any
time before final judgment.” In re Integra Realty
Res., Inc., 354 F.3d 1246, 1261 (10th Cir. 2004);
see also McNamara v. Felderhof, 410 F.3d 277, 281
n.8 (5th Cir. 2005) (quoting In re Integra in
support of the position that a trial court may alter its
class certification ruling). “Four prerequisites to
class certification must be met by all classes: numerosity,
commonality, typicality, and adequacy of
representation.” Izzio v. Century Golf Partners
Mgmt., L.P., No. 16-10446, 2016 WL 6775944, at *1 (5th
Cir. Nov. 15, 2016) (internal quotations and citations
omitted). “An order that grants or denies class
certification may be altered or amended before final
judgment.” Fed.R.Civ.P. 23(c)(1)(C); McNamara,
410 F.3d at 281 n.8. Under Rule 23(a)(1), certification is
only appropriate where “the class is so numerous that
joinder of all members is impracticable.” Fed.R.Civ.P.
23(a)(1). “[A] number of facts other than the actual or
estimated number of purported class members may be relevant
to the ‘numerosity' question; these include, for
example, the geographical dispersion of the class, the ease
with which class members may be identified, the nature of the
action, and the size of each plaintiff's claim.”
Ibe v. Jones, 836 F.3d 516, 528 (5th Cir. 2016)
(quoting Zeidman v. J. Ray McDermott & Co.,
Inc., 651 F.2d 1030, 1038 (5th Cir. 1981)). In Mullen v.
Treasure Chest Casino, LLC, the Fifth Circuit noted that
between 100 and 150 members is within the range that
generally satisfies the numerosity requirement, and
“any class consisting of more than forty members should
raise a presumption that joinder is impracticable.” 186
F.3d 620, 624 (5th Cir. 1999); see also In re TWL
Corp., 712 F.3d 886, 895 (5th Cir. 2013) (noting that a
putative class of only 130 members might present a close
question as to numerosity, depending on the facts of the
have produced evidence that there are only eighteen members
in the usury class. (R. Doc. 794-1.) Eighteen members clearly
does not raise a presumption that joinder is impracticable.
Mullen, 186 F.3d at 624. While Plaintiffs argue that
some class members are dispersed across the country,
Plaintiffs have had no difficulty in locating or identifying
the putative class members. Accordingly, decertification of
the usury class is appropriate. See Ardoin v.
Louisiana, No. 08-593, 2009 WL 958735, at *4 (M.D. La.
Apr. 6, 2009) (holding that numerosity requirement was not
met where the plaintiff's proposed class consisted of no
more than eighteen putative class members).
the FDCPA class, Plaintiffs argue that the settlement did not
resolve any FDCPA claims, and that the FDCPA class should not
be altered. (R. Doc. 794 at 1.) However, courts “remain
under a continuing obligation to review whether proceeding as
a class action is appropriate, and may modify the class or
vacate the class certification pursuant to evidentiary
developments arising during the course of litigation.”
Ellis v. Elgin Riverboat Resort, 217 F.R.D. 415, 419
(N.D.Ill. 2003) (citing Eggleston v. Chi Journeymen
Plumbers' Local Union No. 130, 657 F.2d 890, 896
(7th Cir. 1981) (other citations omitted)). The party who
seeks to maintain a lawsuit as a class action bears the
burden of producing a record demonstrating the continued
propriety of maintaining the class action. Id.
(citing Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d
267, 277 (4th Cir. 1980)). Steeg Law argues that discovery
and pre-trial litigation has revealed that the FDCPA class
consists of twenty-five or fewer members. (R. Doc. 795 at 4.)
Steeg Law contends that throughout this litigation Plaintiffs
have asserted that Steeg Law concealed the identities of
potential FDCPA class members. Id. at 5. However,
this Court recently determined that Steeg Law has not
concealed the identity of potential class members and has
complied with all of its discovery responsibilities in this
case. See (R. Doc. 756.) Steeg Law asserts that it
sent “less than [twenty-five] lien letters within the
one-year period the Court included in the class certification
Order, ” and that Plaintiffs cannot produce any
evidence that the FDCPA class consists of more than
twenty-five individuals. (R. Doc. 795 at 5.) The Court finds
that the FDCPA class must also be decertified. Despite years
of litigation, Plaintiffs have not produced any evidence that
the FDCPA class consists of more than twenty-five
individuals. Further, Plaintiffs have not demonstrated that
class members are difficult to identify or that the class is
geographically dispersed. Accordingly, Plaintiffs' FDCPA
monetary class is decertified.
IT IS HEREBY ORDERED that the class of Plaintiffs asserting
claims under the Fair Debt Collection Practice Act in this
matter is DECERTIFIED.
FURTHER ORDERED that the class of Plaintiffs asserting claims