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Miner v. Government Payment Service, Inc.

United States District Court, N.D. Illinois, Eastern Division

September 5, 2017

MICHAEL MINER, individually and on behalf of others similarly situated, Plaintiff,
v.
GOVERNMENT PAYMENT SERVICE, INC. d/b/a GOV PAY NET, Defendant.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge

         In this putative class action, Plaintiff Michael Miner complains about fees charged by Defendant Government Payment Service, Inc., d/b/a GovPayNet, to Illinois residents who used their credit or debit cards to make cash bail payments in the state. Plaintiff claims that Defendant's charges for bail and bond services violate the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1 et seq. (Count I), and that Defendant is also liable for unjust enrichment (Count III) and conversion (Count V).[1] Currently before the Court is Plaintiff's motion [72] regarding the scope of class discovery. For the reasons set forth below, Plaintiff's motion [72] is granted in part and denied in part. This case is set for further status on September 27, 2017 at 9:00 a.m. Plaintiff is given leave to re-file a motion for class certification by September 26, 2017 if he believes such a motion is necessary at this time despite the overruling of the Damasco decision in Chapman v. First Index, Inc., 796 F.3d 783 (7th Cir. 2015). The now-pending motion for class certification [76], which is not yet ready for briefing as class discovery remains ongoing, will be stricken on September 27, 2017.

         I. Background

         Defendant is a credit card processor that provides bail and bond payment processing services to various law enforcement and county agencies. [19] at ¶ 7. Generally, a card processor charges merchants a fee for the services it provides. Some government entities that accept credit cards, however, require contractual terms that direct the card processor to charge a convenience fee directly to the consumer so that the government entity is not charged a fee.

         One such county that contracted with Defendant in this way was Cook County, Illinois. In a contract effective in 2005, Defendant agreed to provide Cook County with “Credit Card Bail Service.” See [75-1] (Contract for Service). The contract makes clear that Defendant “shall not charge the County any fees or costs for the Credit Card Bail Service * * * . [Defendant's] fee shall be limited to the service fees charged to Arrested Individuals” who used credit cards to post bail service fees. See id. at 3, 7. The service fees ranged from $20 to 8% of the total bail amount. Id. at 7. According to Plaintiff, the contractual relationship between Cook County and Defendant lasted until 2012. See [19] at ¶ 17. Defendant has entered into “separate, independent” contracts with other Illinois counties as well. See [75] at 7.

         Plaintiff availed himself of Defendant's services to make a bail payment in September 2011, presumably pursuant to the contract between Cook County and Defendant. Specifically, Plaintiff used his credit card to pay the Clerk of Circuit Court of Cook County (“Clerk”) a bail deposit of $2, 612 for two traffic citations he received in East Hazel Crest, Illinois. Id. at ¶¶ 20, 21. Defendant charged Plaintiff for the $2, 612 bail deposit and an additional 8% (or $208.96) for providing him bail and bond services. Id. at ¶ 21. The Village of East Hazel Crest then voluntarily dismissed Plaintiff's citations, and the court directed the Clerk to refund the full amount of bail paid. Id. at ¶ 23. Defendant did not refund or reimburse Plaintiff the 8% additional charge for the bail and bond services. Id. at ¶ 24.

         Pursuant to Federal Rules of Civil Procedure 23(b)(2) and (b)(3), Plaintiff brought this action on behalf of himself and a class of similarly situated Illinois residents. Id. at ¶¶ 1, 31, 34.

         He specifically seeks to represent a class of individuals defined as follows:

All residents of the State of Illinois who paid a bail deposit with a credit or debit card and who were charged a fee by [Defendant] for purported bail bond services during the period September 25, 2009, through the date of final judgment.

Id. at ¶ 26. However, the specific allegations of wrongdoing involving Plaintiff-the single named class representative-alleged in the amended complaint pertain solely to his transaction in Cook County. The amended complaint does not contain any allegations that relate to other Illinois counties. See generally id.

         Plaintiff propounded interrogatories and document requests on Defendant in October 2015. Defendant provided initial written responses in June 2015 and amended responses in May 2016. Defendant also has produced some 1, 300 documents and a spreadsheet identifying potential Cook County class members. See [61]. The parties have conducted three meet-and-confer conferences regarding issues with these requests and responses. Unable to resolve the disputes through those efforts, Plaintiff has requested Court intervention. Specifically, the parties have reached an impasse regarding the geographic scope of discovery requested. Plaintiff propounded discovery requests seeking “discoverable information and documents for a putative class of all Illinois residents who paid a bail deposit with a credit or debit card and were charged a fee by Defendant for purported bail bond services.” [72] at 4. Defendant characterizes these requests as “oceanic” and has limited its responses to payments “utilizing the card processing services promulgated and authorized by the County of Cook and the State of Illinois and processed by” Defendant. See, e.g., [75-2] (Defendant's First Amended Answers to Plaintiff's First Set of Interrogatories) at 1 (“Unless otherwise indicated, [Defendant's] responses are limited to the payment of cash bail utilizing the card processing services promulgated and authorized by the County of Cook and the State of Illinois and processed by [Defendant]”), 4 (“based on the allegations in the Amended Complaint, any purported class must be limited, at its broadest, to Illinois[] residents paying a credit or debit card processing fee to [Defendant] when using a credit card to post cash bail in Cook County”); [75-3] (Defendant's First Amended Responses to Plaintiff's First Request for Production) at 13 (objecting to Request No. 23 “to the extent it seeks information related to said items outside Cook County”). Accordingly, Plaintiff has submitted a Federal Rule of Procedure 12(c) motion for a “judicial determination of the appropriate scope” of Plaintiff's class discovery. See [72] at 1. Plaintiff also takes issue with other of Defendant's discovery responses that Plaintiff believes to be insufficient because Defendant's responses direct Plaintiff to seek the information from third parties without first demonstrating that Defendant lacks possession, custody, or control of such information. Plaintiff appears to seek an order compelling the production of such information. See id. at 5-6.

         Although the Court previously indicated that a Federal Rule of Civil Procedure 12(c) motion appeared to be an appropriate vehicle for presenting the issues concerning the proper scope of this litigation, after consideration of the briefs and the pertinent case law, the Court concludes that this is actually a discovery dispute between the parties over the proper scope of class discovery-not a motion for a judgment of any kind. Accordingly, the Court will issue a ruling that comports with its current understanding of how best to move this case forward to disposition.

         II. Discussion

         It is well-established that the federal discovery rules permit liberal discovery in an effort to facilitate the trial or settlement of legal disputes. Bond v. Utreras, 585 F.3d 1061, 1075 (7th Cir. 2009). Pursuant to Federal Rule of Civil Procedure 26(b)(1), “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed.R.Civ.P. 26(b)(1). Federal Rule of Civil Procedure 37(a) permits a party to “move for an order compelling disclosure or discovery.” Fed.R.Civ.P. 37(a)(1). Under Rule 37(a), “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4). A party objecting to the discovery request-here, Defendant-bears the burden of showing why the request is improper. See Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447, 449-450 (N.D. Ill. 2006). The Court has broad discretion when reviewing a discovery dispute and “should consider the totality of the circumstances, weighing the value of material ...


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