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Fariasantos v. Rosenberg & Associates, LLC

United States District Court, E.D. Virginia, Richmond Division

October 27, 2014

CLAUDIO FARIASANTOS, on behalf of himself and all others similarly situated, Plaintiff,
v.
ROSENBERG & ASSOCIATES, LLC, Defendant.

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

This matter is before the Court on the following motions: DEFENDANT ROSENBERG & ASSOCIATES, LLC'S MOTION FOR CLASS CERTIFICATION (Docket No. 37), PLAINTIFF'S MOTION FOR CLASS CERTIFICATION (Docket No. 49), and PLAINTIFF'S MOTION FOR LEAVE TO FILE HIS FIRST AMENDED COMPLAINT (Docket No. 44). For the reasons set forth herein, DEFENDANT ROSENBERG & ASSOCIATES, LLC'S MOTION FOR CLASS CERTIFICATION (Docket No. 37) is granted, PLAINTIFF'S MOTION FOR CLASS CERTIFICATION (Docket No. 49) is denied, and PLAINTIFF'S MOTION FOR LEAVE TO FILE HIS FIRST AMENDED COMPLAINT (Docket No. 44) is denied.

PROCEDURAL BACKGROUND

Plaintiff, Claudio Fariasantos ("Fariasantos"), on behalf of himself and all others similarly situated, brought this action against Defendant Rosenberg & Associates, LLC ("Rosenberg") alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("the FDCPA"). See Class Action Complaint (Docket No. 1). Rosenberg filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and an answer. By Memorandum Opinion issued on March 10, 2014, the Court denied the motion to dismiss, ruling that Counts I, II, and III, which allege violations of the Fair Debt Collections Practices Act ("FDCPA"), each state a plausible claim for relief. See Mem. Op. (Mar. 10, 2014)(Docket No. 30). Thereafter, the parties filed the pending motions, as well as a motion for partial summary judgment, which was denied as moot by Order issued on September 30, 2014. The Court heard argument on the pending motions on September 29, 2014.

PROCEDURAL POSTURE

This matter is in an unusual procedural posture. The parties agree that class certification is appropriate in this case, but there are competing motions for class certification. "Either plaintiff or defendant may move for a determination of whether the action may be certified under Rule 23(c)(1)." 7AA Wright & Miller, Federal Practice and Procedure § 1785 (3d ed. 2014). The difference between the competing motions for class certification is the scope of the class definition and thus the scope of class membership.

DISCUSSION

Introduction

Rosenberg's Motion for Class Certification's seeks to certify the statewide class that Fariasantos proposed in the Class Action Complaint (Docket No. 1). That proposed class definition is as follows:

(A) All Virginia residents to whom Defendant sent a letter in the form of Exhibit A, (B) which contains the 15 U.S.C. § 1692g notice of validation rights in text identical to that in Exhibit A, (C) in an attempt to collect a home loan debt, (D) that was incurred primarily for personal, household or family purposes, (E) during the one year period prior to the filing of the Complaint in this matter.

Class Action Complaint (Docket No. 1), ¶ 40, at 10. In his Motion for Class Certification (Docket No. 49), Fariasantos seeks to certify a class of Henrico County residents (rather than Virginia residents) "to comport with the narrowing of this case after discovery." Pl.'s Mem. Supp. Class Cert. (Docket No. 50) at 2 n.1. The new proposed class definition is as follows:

(A) All residents of Henrico County, Virginia to whom Defendant sent a letter in the form of Exhibit A, (B) which contains the 15 U.S.C. § 1692g notice of validation rights in text identical to that in Exhibit A, (C) in an attempt to collect a home loan debt, (D) that was incurred primarily for personal, household or family purposes, (E) during the one year period prior to the filing of the Complaint in this matter.

Pl.'s Mem. Supp. Class Cert. (Docket No. 50) at 2.

Thus, the Court must decide whether to certify a class and, if so, which class to certify. The Court has the discretion to certify a class or not, and this discretion extends to defining the scope of the class. See Cent. Wesleyan College v. W.R. Grace Co. , 6 F.3d 177, 185 (4th Cir. 1993); Thorn v. Jefferson-Pilot Life Ins. Co. , 445 F.3d 311, 317 (4th Cir. 2006); Wu v. MAMSI Life & Health Ins. Co. , 256 F.R.D. 158, 162 (D. Md. 2008); Meyer v. Citizens & Southern Nat. Bank. , 106 F.R.D. 356, ...


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