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James Bowen, Individually and On Behalf of All Others Similarly v. William E. Groome and Vicki L. Groome

June 7, 2012

JAMES BOWEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
WILLIAM E. GROOME AND VICKI L. GROOME, DEFENDANTS.



The opinion of the court was delivered by: Murphy, District Judge:

MEMORANDUM AND ORDER

On May 31, 2012, the Court held a hearing on Plaintiffs' motion for class certification (Doc. 33) and also considered Plaintiffs' motion to strike Defendant's sur-reply to the motion to certify the class (Doc. 88) and Defendant's motion to file a supplement to their response (Doc. 92). As announced on the record, Plaintiffs' motion to strike is GRANTED, Defendants' motion to supplement is DENIED without prejudice, and Plaintiffs' motion for class certification is GRANTED.

I. DEFENDANTS' MOTION TO SUPPLEMENT

Plaintiffs filed their motion to certify a class on October 26, 2011 (Doc. 33). Defendants responded on February 21, 2012(Docs. 73, 74) and Plaintiffs filed their reply on February 28, 2012 (Doc. 78). On May 10, 2012, Defendants filed a "Supplement to Defendants' Response to Plaintiff's Motion for Class Certification" (Doc. 88). The apparent basis for Defendants' supplement (or, alternatively, given the time-line of filing, Defendants' sur-reply) was information gleaned from named Plaintiff's deposition testimony regarding his possible solicitation by Plaintiffs' counsel (Doc. 88). As Defense counsel argued at the class certification hearing, the gist of the supplement was that Plaintiffs' counsel could not competently represent the class. Plaintiffs filed a motion to strike Defendants' supplement as violative of Local Rule 7.1 (Doc. 89). Defendants then filed a motion for leave to file a supplement to their response to the motion for class certification (Doc. 92).

The Court has considered Defendants' supplement at Doc. 88 and finds that even were Defendants' contentions regarding client solicitation true, they do not bear on the Rule 23(a)(4) analysis here. "Before a district court may certify a proposed class, the class must meet the requirements of Federal Rule of Civil Procedure 23(a). One of those requirements is that the representative parties will fairly and adequately protect the interests of the class. This adequate representation inquiry consists of two parts: (1) the adequacy of the named plaintiffs as representatives of the proposed class's myriad members, with their differing and separate interests, and (2) the adequacy of the proposed class counsel." Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 591-92 (7th Cir. 2011) (internal citations and quotations omitted). Solicitation of a named plaintiff does not in and of itself foreclose counsel's adequacy. Id. at 592. Defendants' supplement does not perturb the Court's conclusion that Plaintiffs have met the requirements of Rule 23(a). Plaintiffs' motion to strike the supplement is therefore granted at this time.

II. MOTION FOR CLASS CERTIFICATION

Pursuant to Federal Rule of Civil Procedure 23(b)(3), Plaintiffs seek certification of a class consisting of "all individuals and business entities who redeemed a tract or real property purchased at Indiana tax and/or Commissioner's sales by William Groome and/or Vicki Groome (or by a nominee), where the redemption amounts were artificially inflated because William and/or Vicki Groome certified to Indiana County Auditors that they had incurred and/or paid statutory notification and/or title costs which Defendants had not incurred or paid." (Doc. 78).*fn1

A. Background

Plaintiffs filed a class action complaint in this Court on February 23, 2011 alleging that Defendants violated federal and Indiana RICO statutes and the Crime Victims Act, and claiming state law fraud, money-had-and-received, and unjust enrichment (Doc. 2). Per the complaint, Defendants fraudulently certified that they had paid certain costs on tax sales of Indiana real property--costs they then forwarded to named Plaintiff and others who redeemed the property. This Court's jurisdiction arises pursuant to 28 U.S.C. § 1331 as Plaintiffs are bringing federal claims. Defendants reside in this judicial district, so the suit is properly in the Southern District of Illinois.

B. Class Certification Standard

"A plaintiff who moves for class certification must satisfy the numerosity, commonality, typicality, and adequacy of representation requirements of Rule 23(a), as well as at least one subsection of Rule 23(b)." Puffer v. Allstate Ins. Co., 675 F.3d 709, 716 (7th Cir. 2012). Here, Plaintiffs seek certification for a class under Rule 23(b)(3). Granting class certification is in "the broad discretion of the district court," but plaintiff must "establish (not merely allege) that the elements of Rule 23(a) are met." Howland v. First American Title Ins. Co., 672 F.3d 525, 528 (7th Cir. 2012). While, "a judge should make whatever factual and legal inquiries are necessary under Rule 23," Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001), "the court should not turn the class certification proceedings into a dress rehearsal for the trial on the merits." Messner v. Northshore University HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).

C. Analysis

1. Rule 23(a)(1)--Numerosity

Rule 23(a)(1) provides that a class action may be maintained only if "the class is so numerous that joinder of all members is impracticable." Plaintiffs maintain that their class will consist of over 275 members. Defendants do not ...


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