The opinion of the court was delivered by: ANDERSEN
Plaintiffs, Michael E. Friedman and Christine J. Friedman, bring this putative class action against defendant May Department Stores Company ("May") pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Defendant now moves for summary judgment on the ground that it is not a "debt collector" within the meaning of the Act, and thus is not subject to its provisions. For the following reasons, we grant defendant's motion for summary judgment.
May operates its department stores through eight, unincorporated department store divisions. Lord & Taylor is an operating division of May and is a trade name used by May. Lord & Taylor operates approximately 59 department stores in 24 different markets, including Chicago, Illinois. In 1996, Lord & Taylor accounted for $ 1.7 billion of May's retail sales, which totaled $ 11.65 billion. Lord & Taylor, Inc. is a wholly-owned subsidiary of May which was formed for the purpose of protecting the Lord & Taylor trade name. Lord & Taylor, Inc., which does not have any employees, has neither ownership in nor operational responsibility for any of the Lord & Taylor stores.
As a convenience to its customers, Lord & Taylor has its own credit card. Lord & Taylor's customers can use the credit card only to purchase merchandise sold at Lord & Taylor's department stores. May issues the Lord & Taylor credit card through May National Bank of Ohio, one of its second-tier, wholly-owned subsidiaries. May National Bank of Ohio routinely sells the Lord & Taylor credit card account receivables to May which, in turn, sells them to Lord & Taylor Finance, Inc., another wholly-owned subsidiary of defendant May. At all times, May is responsible for servicing and collecting the Lord & Taylor credit card accounts.
In order to promote customer loyalty, May identifies its Lord' & Taylor credit card accounts with the Lord & Taylor name and identifies Lord & Taylor as a division of May. The Lord & Taylor credit card application, retail installment contract, credit card, and credit card billing statements identify Lord & Taylor as a division of May. Likewise, Lord & Taylor's letterhead and envelopes for customer service and collection matters identify Lord & Taylor as a division of May.
May and its department store divisions are primarily engaged in the business of retail sales. May services and collects only credit card accounts which are issued either by itself or one of its subsidiary banks under the name of one of its department store divisions, such as Lord & Taylor. May's servicing and collection of credit card accounts are incidental and collateral to its primary business of retail sales.
This action arises from May's collection efforts, specifically, contacting the Friedmans on two occasions regarding a past due balance on their Lord & Taylor credit card account. Plaintiffs allege that defendant violated the Fair Debt Collection Practices Act by sending a notice requesting payment which did not include the validation of debts language set forth in 1692g(a). Plaintiffs also allege that defendant, identifying itself as Lord & Taylor, subsequently contacted them by telephone after they paid the debt.
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1986). In considering such a motion, the court accepts as true the facts set forth by the non-moving party and draws all justifiable interferences in that party's favor. Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991). The party opposing the motion must set forth specific allegations to demonstrate the existence of a material issue for trial. Celotex Corp v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). Yet, this burden requires the party opposing summary judgment to "do more than simply Show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).
Before turning to the merits of the motion before us, we must first address the preliminary issue of whether it is appropriate to rule on defendant's motion for summary judgment before resolving the question of class certification. Generally, the issue of class certification should be resolved "as soon as practicable," and thus, before any determination on the merits. Fed. R. Civ. P. 23(c); Rutan v. Republican Party of Illinois, 868 F.2d 943, 947 (7th Cir. 1989), aff'd in part and rev'd in part, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990)(rev'd on other grounds); Allen v. Aronson Furniture Co., 971 F. Supp. 1259, 1261 (N.D. Ill. 1997). The Seventh Circuit has recognized, however, that this directive does not apply when the plaintiffs' claims are without merit. Id. at 1261 (citing Cowen v. Bank United, 70 F.3d 937, 941 (7th Cir. 1995)); see also Marx v. Centran Corp., 747 F.2d 1536, 1552 (6th Cir. 1984); 7B CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 1785, at 127 (2d ed. 1986). Here, plaintiffs' claims are not only without merit, but plaintiffs have yet to present a motion for class certification. Under these circumstances, we believe that the more efficient course is to forego the class certification issue.
In 1977 Congress enacted the Fair Debt Collection Practices Act in response to the widespread concern regarding the "abusive, deceptive, and unfair debt collection practices by many debt collectors." 15 U.S.C. § 1692(a). The stated purpose of the Act is "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, ...