United States District Court, N.D. Alabama, Southern Division
ASHLEE STEIN, individually and on behalf of a class of persons similarly situated, Plaintiff,
MONTEREY FINANCIAL SERVICES, INC., Defendant.
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
Stein filed this lawsuit against Monterey Financial Services,
Inc., Experian Information Solutions, Inc., and Equifax
Information Services, L.L.C., asserting seven claims in her
individual capacity. Stein voluntarily dismissed Experian and
Equifax, leaving Monterey as the sole defendant. See
docs. 21; 22; 23; 24. Stein subsequently filed a motion to
amend her complaint to add a class claim under the TCPA,
which the court granted. See docs. 26; 31. Monterey
then moved for summary judgment as to Stein's individual
and class TCPA claims. Doc. 35. The court denied
Monterey's motion and entered a scheduling order which,
among other things, allotted one year for class discovery.
Docs. 50; 52. Presently before the court is Stein's
motion for class certification. Doc. 63. The motion is fully
briefed, docs. 63; 69; 74, and, with the benefit of oral
argument, ripe for ruling. For the reasons stated more fully
below, the court concludes that the motion is due to be
denied. Accordingly, this matter is
SET for a pretrial conference at 1:00 p.m.
on February 17, 2017, and for trial at 9:00 a.m. on March 27,
2017, both in Courtroom 4A of the Hugo L. Black Courthouse,
1729 Fifth Avenue North, Birmingham, AL 35203. The court
directs the parties to the Standard Pretrial Procedures
governing all pretrial deadlines, which is attached as
before August 2012, Stein discovered that her credit report
reflected an outstanding debt for a “Luminess
Air” account that Stein did not recognize or recall
creating, and which Monterey had acquired for collection.
See doc. 43-2 at 3. Subsequently, on August 28,
2012, after obtaining Monterey's number from the credit
reporting agency, Stein contacted Monterey “to find out
why this account [she] knew nothing about was showing up on
[her] credit reports.” Id.; doc. 43-3
(recording of August 28, 2012 phone call at 1:28, 3:43). When
Laurisa Fernandez answered Stein's call, Stein explained
that she had “never ordered anything” from
Luminess Air and was calling to “see what was on the
account.” Doc. 43-3 at 3:43. After Fernandez located
Stein's account in the Monterey database, and before
offering any additional information about the account,
Fernandez asked Stein to verify her mailing address and
asked, “What's a good home phone number for
you?” Id. at 5:00. Stein responded by
verifying her address and providing her cell phone number.
Id. at 5:03. Fernandez then asked whether the number
from which Stein was calling was a “good number”
to reach her, and Stein responded, “no.”
Id. at 5:08.
point, Fernandez informed Stein that her account reflected an
outstanding balance of $397.94 for the purchase of an
“airbrush makeup kit” from Luminess in 2010,
which was transferred to collection in April 2012.
Id. at 5:13, 9:47. Confused as to how she incurred
the debt, Stein asked a series of questions about the
purchase and learned that the credit card used to purchase
the makeup kit was a Mastercard in Stein's name, but
which had a different last four digits than those on the
Mastercard in Stein's possession at the time of the call.
Id. at 5:30- 9:39. At one point during the
conversation, Stein stated that perhaps her mother had
purchased the makeup kit on Stein's credit card, adding
that her mother “would do something like that and not
even tell [her].” Doc. 43-3 at 6:47-6:52. Ultimately,
Stein stated that she “didn't want . . . [the
charge] on her credit” and that she would like to
“set up payments so that can be taken care of.”
Id. at 7:10. Fernandez subsequently provided
instructions for sending payment to Monterey, which concluded
the telephone conversation. Id. at 7:16-11:47.
thinking more about the situation” and speaking with a
lawyer about whether she should “pay for this debt that
was not [hers] and that [she] did not owe, ” Stein
changed her mind and chose instead to “dispute the
account with the credit reporting companies.” Doc. 43-2
at 4. Apparently, Stein never conveyed this to Monterey,
because Monterey attempted to collect the debt by
continuously using an automatic dialer to call Stein on her
cell phone. Doc. 36-1 at 5. Between August 28, 2012 and July
18, 2013 (when Stein initiated this lawsuit), Stein received
over thirty auto-dialed calls and numerous prerecorded
voicemails from Monterey debt collectors. See doc.
43-1 at 4-6.
CLASS CERTIFICATION STANDARDS
Rule of Civil Procedure 23 outlines the requirements for
class certification. As a threshold matter, a district court
should determine whether the proposed class is
“adequately defined and clearly ascertainable.”
Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304
(11th Cir. 2012) (quoting DeBremaecker v. Short, 433
F.2d 733, 734 (5th Cir. 1970)) (internal quotation marks
omitted); see also John v. Nat'l Sec. Fire & Cas.
Co., 501 F.3d 443, 445 (5th Cir. 2007) (“The
existence of an ascertainable class of persons to be
represented by the proposed class representative is an
implied prerequisite of Federal Rule of Civil Procedure
23.”). Only if the court determines that this threshold
requirement is met must it then address the question of
whether the four Rule 23(a) prerequisites are satisfied.
These prerequisites, commonly referred to as the numerosity,
commonality, typicality, and adequacy requirements, are
“designed to limit class claims to those fairly
encompassed by the named plaintiffs' individual claims,
” Valley Drug Co. v. Geneva Pharms., Inc., 350
F.3d 1181, 1188 (11th Cir. 2003) (citing Prado-Steiman v.
Bush, 221 F.3d 1266, 1278 (11th Cir. 2000)), and
“serve as guideposts for determining whether under the
particular circumstances maintenance of a class action is
economical and whether the named plaintiff's claim and
the class claims are so interrelated that the interests of
the class members will be fairly and adequately protected in
their absence, ” Piazza v. Ebsco Industries,
Inc., 273 F.3d 1341, 1346 (11th Cir. 2001) (quotations
and citations omitted).
plaintiff establishes the Rule 23(a) prerequisites, the
analysis then shifts to Rule 23(b), which requires, in
pertinent part, that “questions of law or fact common
to class members predominate over any questions affecting
only individual members, and that a class action is superior
to other available methods for fairly and efficiently
adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).
district court must conduct a rigorous analysis of the Rule
23 prerequisites before certifying a class.” Sher
v. Raytheon Co., 419 F. App'x 887, 889 (11th Cir.
2011) (citing Falcon, 457 U.S. at 161). While class
certification naturally focuses on the requirements of Rule
23, “the trial court can and should consider the merits
of the case to the degree necessary to determine whether the
requirements of Rule 23 will be satisfied.” Valley
Drug Co., 350 F.3d at 1188 n.15. Finally, “the
party seeking class certification has the burden of
proof, ” Brown v. Electrolux Home Prods., 817
F.3d 1225, 1233 (11th Cir. 2016) (citing Valley Drug. Co.
v. Geneva Pharms., Inc., 350 F.3d 1181, 1187 (11th Cir.
2003)) (emphasis in original), and “if doubts remain
about whether the standard [for certification] is satisfied,
‘the party with the burden of proof loses.'”
Brown, 817 F.3d at 1233 (quoting Simmons v.
Blodgett, 110 F.3d 39, 42 (9th Cir. 1997)).
to the present motion, the TCPA makes it unlawful “to
make any call (other than a call . . . made with the prior
express consent of the called party) using any automatic
telephone dialing system or an artificial or prerecorded
voice . . .” 47 U.S.C. § 227(b)(1)(A). Stein seeks
to certify a class of “[a]ll persons within the United
States to whom Monterey placed an ATDS-to-cellular
debt-collection call between February 13, 2013 and July 17,
2013, and who did not provide their cellular numbers to their
creditors during the transaction that resulted in the debt
owed.” Doc. 63 at 8. Stein insists that she can
ascertain the members of this proposed class by having
Monterey identify “all ATDS-to-cellular calls it made
during the statutory period, ” and then removing all
potential class members who consented to receiving the calls
by having Monterey identify “any [call recipients] who
had provided their cellular phone numbers to their creditors
during the transaction resulting in the debt owed.”
parties have primarily focused on whether Stein's theory
of consent is too narrow or, stated differently, does not
exclude from the proposed class all persons who validly
consented to receiving debt-collection calls from
Monterey.The court does not have to resolve which
party's consent theory is “correct, ”
however, due to Stein's failure to rebut a secondary
argument Monterey presented: i.e., that Stein
proposes no feasible method for removing persons who received
non-debt-collection calls from the pool of
proposed class members. See doc. 69 at 19;
Transcript from Dec. 19, 2016 Oral Argument at 38-39. Because
a plaintiff has the burden of “propos[ing] an
administratively feasible method by which class members can
be identified, ” Karhu v. Vital Pharms., Inc.,
621 F. App'x 945, 947 (11th Cir. 2015), for reasons
explained more fully below, the court concludes that Stein
cannot satisfy Rule 23's implied ascertainability
requirement and Rule 23(a)(3)'s typicality requirement.
Alternatively, the court finds that, regardless of the
operative consent theory, individualized consent issues
render the proposed class unsuitable for certification under