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Dykes v. Portfolio Recovery Associates, LLC

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

January 28, 2016

CAROLYN DYKES, on behalf of herself and all others similarly situated, Plaintiff



This matter is before the Court on Plaintiff Carolyn Dykes’ (“Plaintiff”) Motion for Class Certification and Appointment of Class Council. [Dkt. 44] For the following reasons, the Court denies Plaintiffs’ Motion for Class Certification and Appointment of Class Council.

I. Background

Plaintiff filed the instant action alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) by Defendant Portfolio Recovery Associates (“PRA”). Specifically, Plaintiff claims that PRA violated the FDCPA by sending her debt collection notices in Spanish rather than English. Plaintiff never indicated she preferred to receive correspondence in Spanish and she does not speak or understand Spanish. The Plaintiff now seeks class certification for the class defined as follows:

All consumers with Virginia addresses, who: (a) within one year of January 28, 2015 (b) were sent a debt collection letter in Spanish by Defendant PRA in a form materially identical or substantially similar to the letter attached to Plaintiff’s Complaint as Exhibit A; and (c) the letter was not returned by the postal service as undelivered.

(Pl.’s Mem. in Supp. [Dkt. 45] at 1.) Discovery has revealed that PRA sent the three letters received by Plaintiff to 3, 030 individuals in Virginia during the class period. (Id. at 3.) PRA also sent copies of two allegedly similar letters to another 300 individuals in Virginia during the class period. (Id.) Discovery also revealed that PRA began corresponding with Plaintiff in Spanish after receiving a response in Spanish from a phone call to a number which a LexisNexis skip-tracing search indicated was connected with Plaintiff. (Id. at 4.) Plaintiff alleges that PRA soon realized that this number was not connected with Plaintiff and struck it from its register, but continued to correspond with Plaintiff in Spanish. Each of the three Spanish letters sent to Plaintiff contains language which, when translated, notifies the reader that “[t]his letter comes from a collection agency and its intention is to collect a debt. Any information that is obtained will be used for that purpose.” (Am. Compl. ¶¶ 12, 13, 16.) In denying a previous motion to dismiss in this case, the Court noted that “[t]here is no allegation . . . that the substance of the Spanish collection letters contained false statements or information; quite simply, they were just written in Spanish, a language [Plaintiff] could not read.” (Mem. Op. at 5.) The Motion for Class Certification and Appointment of Class Council has been fully briefed, oral argument was heard on January 21, 2016, and the motion is now ripe for decision.

II. Standard of Review

A class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Wal-Mart Stores v. Dukes, 131 S.Ct. 2541, 2550 (2011). “The district court must perform a rigorous analysis to ensure that a class certification is appropriate” before certifying a class. Soutter v. Equifax Info Servs., 498 F.App’x 260, 264 (4th Cir. 2012). The Fourth Circuit has “stressed in case after case that it is not the defendant who bears the burden of showing that the proposed class does not comply with Rule 23, but that it is the plaintiff who bears the burden of showing that the class does comply with Rule 23.” Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 321 (4th Cir. 2006)(emphases in original). “A party seeking class certification must affirmatively demonstrate his compliance with the Rule - that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Dukes, 131 S.Ct. at 2551. The class certification inquiry frequently involves analysis that “overlap[s] with the merits of the plaintiff’s underlying claim.” Id. “[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” General Telephone Co. of Southwest v. Falcon, 102 S.Ct. 2364, 2372 (1982).

In order to be certified, “a proposed class must satisfy Rule 23(a) and one of the three sub-parts of Rule 23(b).” Thorn, 445 F.3d at 318 (citing Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 423 (4th Cir. 2003)). Rule 23(a) requires “numerosity of parties, commonality of factual or legal issues, typicality of claims and defenses of class representatives, and adequacy of representation.” Id. In proving commonality, the party seeking class certification must show that a certified class would have “the capacity . . . to generate answers” that “resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 131 S.Ct. at 2551. If the resolution of the claim “turns on a consideration of the individual circumstances of each class member, ” then commonality is not satisfied. Thorn, 445 F.3d at 319. The four requirements of Rule 23(a) are threshold requirements, each of which must be satisfied in order to proceed as a class action. Amchem Prods. v. Windsor, 117 S.Ct. 2231, 2245 (1997).

Additionally, “Rule 23 contains an implicit requirement that the members of a proposed class be readily identifiable.” EQT Prod., 764 F.3d at 358. This is sometimes referred to as the “ascertainability” requirement. Id. In order to satisfy this requirement, “the plaintiff must demonstrate that class members will be identifiable without extensive and individualized fact-finding or mini-trials[.]” Soutter v. Equifax Information Services, LLC, 307 F.R.D. 183, 196 (E.D.Va 2015)(internal quotation marks omitted). Ascertainability is a threshold requirement which must be satisfied in order to proceed as a class action. EQT Prod., 764 F.3d at 358.

“Rule 23(b)(3) has two components: predominance and superiority.” Id. at 319. Predominance requires that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3). Predominance “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Gariety v. Grant Thornton, LLP, 368 F.3d 356, 362 (4th Cir. 2004)(internal quotation marks omitted). This predominance standard is “even more demanding than Rule 23(a).” Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997)). Superiority requires that “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). “The predominance inquiry focuses not only on the existence of common questions, but also on how those questions relate to the controversy at the heart of the litigation.” EQT Prod. 764 F.3d at 358. Where the court must engage in “substantial and individualized inquiries for each class member, ” the predominance requirement is not satisfied. Paulino v. Dollar General Corp., 2014 WL 1875326, at *6 (N.D. W.Va. May 9, 2014)(citing Randleman v. Fidelity Nat. Title Ins. Co., 646 F.3d 347, 353).

III. Analysis

Plaintiff argues that each of the four requirements of Rule 23(a) and both the predominance and superiority requirements of Rule 23(b)(3) have been met for her proposed class. (Pl.’s Mem. in Supp. at 7). As a threshold matter, PRA challenges the validity of the Plaintiff’s proposed class definition as “untethered from her FDCPA claim, which hinges on the putative class members’ Spanish literacy.” (Def.’s Mem. in Opp. at 7.) PRA also challenges the validity of what it believes would be the properly defined class as failing to satisfy ascertainability, commonality, typicality, and numerosity. (Id. at 14-22.) Finally, PRA denies that Plaintiff has demonstrated predominance and superiority as required by Rule 23(b). (Id. at 22-25.) The Court agrees with the Defendant that the class described by Plaintiff in her ...

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