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INGRAM v. CORPORATE RECEIVABLES

August 18, 2003

TERRENCE INGRAM, PLAINTIFF, VS. CORPORATE RECEIVABLES, INC., AND OSI COLLECTION SERVICES, INC., DEFENDANTS


The opinion of the court was delivered by: Sidney Schenkier, Magistrate Judge

MEMORANDUM OPINION AND ORDER

On September 17, 2002, the plaintiff, Terrence N. Ingram, filed a two-count complaint against OSI Collection Services, Inc. ("OSI") and Corporate Receivables, Inc. ("CRI" under the Fair Debt Collection Practices Act ("the FDCPA" or "the Act"), 15 U.S.C. § 1692, et seq. The claims set forth in the complaint arise out of certain letters sent by OSI and CRI to collect a debt allegedly owed by Mr. Ingram. In Count I, the plaintiff claims that OSI sent a series of six collection letters which violated 15 U.S.C. § 1692e and/or 1692g of the FDCPA. In Count II, the plaintiff claims that CRI sent one letter that violated Section 1692a. On October 28, 2002, OSI answered the complaint (doc, #7), On December 17, 2002, CRI moved to dismiss the complaint (doc. #18), This Court granted the motion to dismiss the claim that CRI had violated Section 1692g(a)(3) of the Act, but denied the motion as to the allegation that CRI had failed to clearly state the amount of the debt due, in violation of Section 1692g(a)(1). Ingram v. Corporate Receivables, Inc., No. 02 C 6608, 2003 WL 21018650 (N.D. Ill. May 5, 2003).

Now pending before the Court is the plaintiff's motion for class certification (doc. #5), which asks the Court to certify a class on the claim against CRT consisting of "(a) all natural persons [ Page 2]

(b) with Illinois addresses (c) who were sent a letter in the form represented by Exhibit G [to the complaint], (d) seeking to collect on an amount allegedly owed to Household (e) on or after a date one year prior to the filing of this action" (Pl.'s Motion, at 1-2).*fn1 CRI has declined to file any opposition to plaintiff's motion for class certification: CRI states that "it does not consent to class certification, but rather leaves it to the Court's discretion to determine if class certification is appropriate" (doc. #31: CRI's Response to Pl.'s Motion, at 1), For the reasons set forth below, the Court grants the plaintiff's motion for class certification under Fed, R. Civ. P. 23(b)(3).*fn2

I.

To certify a class under Fed.R.Civ.P. 23(b), a plaintiff must first prove the existence of all four prerequisites set forth in Rule 23(a). Next, the plaintiff must satisfy one of the requirements set forth in Rule 23(b). Gaspar v. Linvatec Corp., 167 F.R.D. 51, 58 (N.D. Ill. 1996). The burden of proof to meet all the requirements of Rule 23 rests with the plaintiff, Gen. Tel, Co. v. Falcon, 457 U.S. 147, 162 (1982), and the failure to satisfy these requirements precludes certification of a class. Retired Chicago Police Assoc. v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). "[T]he court maintains broad discretion to determine whether a proposed class satisfies the requirements and should err in favor of maintaining class actions." Guillory v. Am. Tobacco Co., 2001 WL 290603, at *2 (N.D. Ill. March 20, 2001) (citing Patterson v. Gen. Motors Corp., 631 F.2d 476, 480 (7th Cir. 1980)). [ Page 3]

In considering a motion for class certification, the Court must accept the allegations in the complaint as true, and must not decide the outcome based on the merits of the claim. Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177 (1974). "[N]othing in either the language or the history of Rule 23 . . . gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.") Id. A meritorious claim may be resolved adversely to the plaintiffs after a court certifies a Rule 23 class, resulting in a res judicata effect on the class. See Cown v. Bank United of Texas, FSB, 70 F.3d 937, 941-42 (7th Cir. 1995), Thus, "while the `boundary between a class determination and the merits may not always be easily discernable,' . . . because the Court's certification decision depends on factors `enmeshed in the factual and legal issues comprising the plaintiff's cause of action,' . . . it nonetheless is a boundary that must be respected." Rahim v. Sheahan, No, 99 C 0395, 2001 WL 1263493, at *9 (N.D. Ill. Oct. 19, 2001) (quoting Retired Chicago Police Ass'n., 7 F.3d at 598-599).

II.

The prerequisites to class certification under Rule 23(a) are numerosity, commonality, typicality and adequacy of representation. We will address each of those elements below, in turn, but before doing so, we note that there are two implied prerequisites to class certification that must be satisfied prior to addressing the issues raised by Rule 23(a). First, the class must be sufficiently defined so that the class is identifiable. Second, the named representatives must fall within the proposed class. Rahim, 2001 WL 1263493, at *10 (quoting Guillory, 2001 WL 290603, at *2). In this case, these two prerequisites arc met. The proposed class is defined with enough specificity to allow the Court to "determine whether a particular individual is a member of the proposed class," and is not overly broad. Guillory, 2001 WL 290603, at *2. Moreover, the named plaintiff in this [ Page 4]

case falls within the definition of the proposed class: he allegedly received the form letter, set forth in Exhibit G to the complaint, that is the subject of the class claim plaintiff seeks to pursue against CRI. With these prerequisites satisfied, we now examine the four requirements under Rule 23(a).

A. Numerosity

A prerequisite to class certification is that a proposed class is "so numerous that joinder of all members is impracticable," Fed.R.Civ.P. 23(a)(1). There is no set number required to fulfill the numerosity requirement. Keele v. Wexler, No. 95 C 3483, 1996 WL 124452, at *2 (N.D. Ill March 19, 1996), aff'd 149 F.3d 589 (7th Cir. 1998); in a given case, 40 or fewer putative class members can be sufficient. See Swanson v. American Consumer Indus., 415 F.2d 1326, 1333 n. 9 (7th Cir. 1969). Moreover, the precise number of putative class members need not be known. A plaintiff can offer good faith estimates of class size if the specific number of class members may be difficult to assess, and the Court may use "common sense assumptions" to determine the validity of those estimates. Rahim, 2001 WL 1263493, at *12.

The plaintiff here offers no specifics as to the number of individuals who allegedly received the type of form letter that is the basis of the claim against CRI. Rather, the plaintiff asks the Court to infer numerosity because a company the size of CRI (according to CRI's DUNN & BRADSTREET report, it employs 85 persons and has revenues of $9 million per year) likely would send out this standard form letter on behalf of a large client to more than 20 to 40 persons in a given year (Pl.'s Mot., at 4). These kinds of extrapolations have been used by other courts in deciding that the numerosity requirement has been meet. See Davis v. Suran, No, 98 C 0656, 1998 WL 474105, at *2 (N.D. Ill. Aug. 3, 1998) (using a defendant's 10-K Form to determine the size of the company and the approximate frequency of transactions at issue); Sledge v. Sands, 182 F.R.D. 255, 258 (N.D. Ill. [ Page 5]

1998) (considering the agency's size in determining the frequency with which letters would be sent); Carr v. Transunion Corp., C.A. 94-22, 1995 WL 20865 at *1 (E.D. Pa. Jan. 12, 1995) (inferring ...


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