United States District Court, N.D. Illinois, Eastern Division
SCOTT McMAHON, on behalf of plaintiff and the classes defined herein, Plaintiff,
LVNV FUNDING, LLC, RESURGENT CAPITAL SERVICES, L.P., ALEGIS GROUP, LLC, and TATE & KIRLIN ASSOCIATES, INC., Defendants.
MEMORANDUM OPINION AND ORDER
JORGE ALONSO, District Judge.
Plaintiff sues defendants for their alleged violations of the Fair Debt Collection Practices Act. The case is before the Court on plaintiff's second amended motion for class certification. For the reasons set forth below, the Court denies the motion.
Plaintiff asks the Court to certify three classes for its FDCPA claims, defined as: Class A:
(a) all individuals in Illinois (b) to whom LVNV, Resurgent or any debt collector employed by LVNV or Resurgent (c) sent a letter seeking to collect a debt that referred to a "settlement" (d) which debt was (i) a credit card debt on which the last payment had been made more than five years prior to the letter, or (ii) a debt arising out of the sale of goods (including gas) on which the last payment had been made more than four years prior to the letter (e) which letter was sent on or after February 28, 2011 and on or before March 19, 2012, (f) where the individual after receipt of the letter, (i) made a payment, (ii) filed suit, or (iii) responded by requesting verification or contesting the debt.
Subclass 1 (alleged in the first amended complaint as Class C):
[T]hose members of Class A who were sent a "Validation of Debt" notice similar to one attached as Exhibit C to Plaintiff's Amended Complaint. The "Validation of Debt" notice contained the date on which LVNV or Resurgent purchased the debt and not the date of default.
Subclass 2 (alleged in the first amended complaint as Class B):
[A]ll persons in Class A who were sent a collection letter by Tate & Kirlin Associates, Inc.
(Pl.'s Reply Mem. Supp. 2d Am. Mot. Class Cert. at 3-4.) This definition of Class A, however, is different from the one plaintiff alleges in the first amended complaint. ( See 1st Am. Compl. ¶ 55.) Defendants argue that the change in definition precludes class certification.
The parties do not cite, and the Court has not found, a Seventh Circuit case that states whether a court can evaluate a certification motion based on a class definition that differs from the one alleged in the complaint. Moreover, as Judge St. Eve noted in Savanna Group, Inc. v. Trynex, Inc., No. 10 C 7995, 2013 WL 66181, at *2-3 (N.D. Ill. Jan. 4, 2013) (collecting cases), a number of district courts have refused to do so.
Here, however, it is difficult to see any practical advantage to requiring plaintiff to amend his complaint before the Court considers the propriety of certifying Class A as it is now defined. Defendants would raise the same arguments in opposition to a motion for leave to amend the class allegations that they raise now in opposition to certification. Moreover, having disavowed the alleged definition of Class A, plaintiff will have to amend the class allegations, regardless of how the certification issue is decided. Thus, though plaintiff should have asked to amend the class definition before moving for certification, requiring him to do so now would only delay the proceedings. Accordingly, the Court will evaluate the propriety of certifying the classes as amended.
Certification is proper only if each of the classes meets all of the requirements of Rule 23(a) and one of the requirements of Rule 23(b). See Fed.R.Civ.P. 23; Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). Rule 23(a) is satisfied if:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative ...