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Stein v. Monterey Financial Services, Inc.

United States District Court, N.D. Alabama, Southern Division

January 31, 2017

ASHLEE STEIN, individually and on behalf of a class of persons similarly situated, Plaintiff,



         Ashlee 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.[1] 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.[2] 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 Exhibit A.


         Sometime 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.

         At this 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.

         “[A]fter 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.


         Federal 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).

         If the 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).

         “A 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)).

         III. ANALYSIS

         Turning 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.” Id.

         The 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.[3]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 Rule 23(b)(3).

         A. ...

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