United States District Court, D. Massachusetts
CAROL LANNAN and ANN WINN, on behalf of themselves and others similarly situated, Plaintiffs,
LEVY & WHITE and ROBERT R. WHITE, ESQ., Defendants.
MEMORANDUM & ORDER
TALWANI, District Judge.
are two former debtors of Trinity Emergency Medical Services
("Trinity EMS"). Plaintiffs allege that Defendants
Robert R. White and Levy & White represented Trinity EMS as
counsel in collections actions against Plaintiffs and other
debtors in small claims court and that their conduct during
those small claims actions violated the Fair Debt Collection
Practices Act ("FDCPA") and Mass. Gen. Laws ch.
93A. Before the court are Plaintiffs' Motion for Class
Certification [#30], Defendant Robert R. White's Motion
for Summary Judgment [#35], and Plaintiffs' Motion for
Partial Summary Judgment [#40] as to liability. For the
following reasons, Defendant's motion is DENIED and
Plaintiffs' motions are ALLOWED.
Emergency Medical Services ("Trinity EMS") provided
ambulance services to Plaintiffs Carol Lannan and Ann Winn.
Defendant White, acting as counsel for Trinity EMS, filed
Statements of Claim against Plaintiffs in Massachusetts small
claims court seeking to collect on behalf of Trinity EMS debt
for the ambulance services.
October 2, 2013, White, as counsel for Trinity EMS, signed
and submitted a Statement of Claim against Lannan to the
Lowell District Court. Def.'s Statement Material Fact for
Def.'s Mot. Summ. J. Â¶ 2 [#38]; Pls.' Statement
Material Fact for Def.'s Mot. Summ. J. Â¶ 2 [#44]. On
October 15, 2013;, the Lowell District Court placed the
Statement of Claim on the docket and mailed it to Lannan.
Def.'s Statement Material Fact for Def.'s Mot. Summ.
J. Â¶ 6 [#38]; Pls.' Statement Material Fact for
Def.'s Mot. Summ. J. Â¶ 6 [#44]. The Statement of Claim
stated that Lannan owed Trinity EMS "$1, 863.83 plus $50
court costs... for: ambulance transport of 5/21/11."
Pls.' Statement Material Fact for Pls.' Mot. Summ. J.
Â¶ 1 [#42]; Def.'s Statement Material Fact for Pls.'
Mot. Summ. J. Â¶ 1 [#57]; Aff. Robert R. White Supp. Mot.
Dismiss & Summ. J. Ex. 1 [#35-2]. Nothing in the Statement of
Claim indicated that prejudgment interest was being claimed
or was part of the total amount claimed. Pls.' Statement
Material Fact for Pls.' Mot. Partial Summ. J. Â¶ 1 [#42];
Def.'s Statement Material Fact for Pls.' Mot. Partial
Summ. J. Â¶ 1 [#57]. White arrived at the $1, 863 figure by
adding interest from the date that Trinity EMS provided
ambulance services to Lannan, even though Lannan was not
invoiced for the provision of services until four to five
months later. Pls.' Statement Material Fact for Pls.'
Mot. Partial Summ. J. Â¶Â¶ 2, 5, 6 [#42]; Def.'s Statement
Material Fact for Pl.'s Mot. Summ. J. Â¶Â¶ 2, 5, 6 [#57].
Lannan entered into an Agreement for Judgment on February 24,
2014, for the amount stated in the Statement of Claim, plus
additional prejudgment interest entered by the clerk of the
court. Def.'s Statement Material Fact for Def.'s Mot.
Summ. J. Â¶Â¶ 12-13 [#38]; Pls.' Statement Material Fact
for Def.'s Mot. Summ. J. Â¶Â¶ 12-13 [#44]; Aff. Robert R.
White Supp. Mot. Dismiss & Summ. J. Ex. 3 [#35-4].
Statement of Claim that White served on Plaintiff Winn
sometime after February 19, 2014, stated that Winn owed
Trinity EMS $2, 000 plus $50 in court costs. Aff. Robert R.
White Supp. Mot. Dismiss & Summ. J. Ex. 4 [#35-5]. That
amount included undifferentiated prejudgment interest.
Pls.' Statement Material Fact for Pls.' Mot. Partial
Summ. J. Â¶ 8 [#42]. Winn filed a counterclaim alleging that
Trinity EMS had misrepresented in the Statement of Claim the
amount of debt owed by improperly including prejudgment
interest to the lump sum amount demanded. Def.'s
Statement Material Fact for Def.'s Mot. Summ. J. Â¶ 18
[#38]; Pls.' Statement Material Fact for Def.'s Mot.
Summ. J. Â¶ 18 [#44].
November 21, 2014, Winn entered into an Agreement for
Judgment for $1, 200. Def.'s Statement Material Fact for
Def.'s Mot. Summ. J. Â¶ 22 [#38]; Pls.' Statement
Material Fact for Def.'s Mot. Summ. J. Â¶ 22 [#44]; Aff.
Robert R. White Supp. Mot. Dismiss & Summ. J. Ex. 6 [#35-7].
The agreement also provided for dismissal of Winn's
counterclaim with prejudice and a waiver of all rights of
October 15, 2014, Plaintiffs commenced this action for
violations of the Fair Debt Collection Practices Act, 15
U.S.C. Â§Â§ 1692e, 1692f ("FDCPA") and Mass. Gen.
Laws ch. 93, Â§ 49, as actionable under Mass. Gen. Laws. ch.
93A, Â§ 2 ("Chapter 93A"). Plaintiffs claim that
White's violations stemmed from his: (1) including
undifferentiated, unawarded prejudgment interest in the
Statements of Claim he filed against Plaintiffs on behalf of
Trinity EMS, in violation of state law; and (2)
misrepresenting the amount that Plaintiff Lannan owed when,
in violation of state law, he calculated prejudgment interest
from the date that she received services, which was a date
prior to any breach by her or demand by Trinity EMS.
move to certify two classes for statutory damages, each with
two subclasses. They define the first class, the "FDCPA
Class, " to include:
All individuals in Massachusetts who, since October 15, 2013,
were sued or served with a complaint (a) as to whose alleged
debt Defendants included prejudgment interest in the total
amount claimed in a Small Claims Statement of Claim
["Subclass (a)"], or (b) where Defendants added
prejudgment interest to an alleged debt to Trinity EMS for a
period beginning at or about the date of service by Trinity
EMS instead of the date Trinity EMS first billed for payment
of its services ["Subclass (b)"].
define the second class, the "Chapter 93A Class, "
identically, except that the time frame is "since
October 15, 2010."
Proposed Classes Satisfy the Requirements of
maintain a class action, Plaintiffs "must affirmatively
demonstrate" compliance with Rule 23. Comcast Corp.
v. Behrend, 133 S.Ct. 1426, 1432 (2013) (quoting
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011)). To do so, Plaintiffs must satisfy through
evidentiary proof that they meet the requirements of both
Rule 23(a) and at least one of the provisions of Rule 23(b).
Comcast, 133 S.Ct. at 1432.
Requirements Under Rule 23(a)
Federal Rule of Civil Procedure 23(a), the party seeking
class certification must demonstrate that "(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 parties will fairly and adequately protect the
interests of the class." Fed.R.Civ.P. 23(a); see also
Dukes, 564 U.S. at 345.
must first demonstrate that the proposed class "is so
numerous that joinder of all members is impracticable."
Fed.R.Civ.P. 23(a)(1). There is a "low threshold for
numerosity." Garcia-Rubiera v. Calderon, 570
F.3d 443, 460 (1st Cir. 2009) (citing Stewart v.
Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001) (noting
that, as a general matter, "if the named plaintiff
demonstrates that the potential number of plaintiffs exceeds
40, the first prong of Rule 23(a) has been met.")). The
court can consider reasonable inferences drawn from the facts
in determining that the numerosity requirement is satisfied.
See, e.g., Senter v. Gen. Motors Corp., 532 F.2d
511, 523 (6th Cir.), cert. denied, 429 U.S. 870 (1976).
have presented evidence that there is a sufficient number of
potential plaintiffs to satisfy the numerosity requirement of
Rule 23(a). As to FDCPA Subclass (a), White admits that,
between October 15, 2013 and October 15, 2014, he filed more
than 100 small claims statements of damages which included
prejudgment interest in the amount in the space provided for
the "total amount due." Pls.' Mot. Class
Certification Ex. 3 Â¶ 10 [#31-3] (Response to Requests to
Admit). Given the longer time period, there may be additional
plaintiffs in the proposed Chapter 93A Subclass (a).
subclasses (b), Defendant has admitted that he calculates
prejudgment interest from the date Trinity EMS provides
medical services, Pls.' Mot. Class Certification Ex. 1 Â¶
10 [#31-1] (Response to Interrogatories), Ex. 3 Â¶ 8 [#31-3]
(Response to Requests to Admit), and Plaintiffs have
proffered evidence that Defendant has served as
debt-collection counsel for 55 Trinity EMS accounts for
collection between October 15, 2013 and October 15, 2014
(encompassing FDCPA Subclass (b)) and 579 accounts between
October 15, 2010 and October 15, 2014 (encompassing Chapter
93A Subclass (b)). Pls.' Mot. Class Certification Ex. 4
Â¶Â¶ 4-5 [#31-4] (Decl. Alyssa Kutner). The numbers are
sufficient to meet the numerosity requirement.
must show that "there are questions of law or fact
common to the class." Fed.R.Civ.P. 23(a)(2). To do so,
they must show that the proposed class members "have
suffered the same injury." Dukes, 564 U.S. at
349-50. What matters to class certification is "the
capacity of a classwide proceeding to generate common answers
apt to drive the resolution of the litigation."
Id. at 350 (internal quotation marks omitted).
Plaintiffs' claims "must depend upon a common
contention" that "must be of such a nature that it
is capable of classwide resolution- which means that
determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in
one stroke." Id . In other words, the
commonality requirement is satisfied where the
"questions that go to the heart of the elements of the
cause of action' will each be answered either yes' or
no' for the entire class' and the answers will not
vary by individual class member.'" Garcia v. E.J.
Amusements of N.H., Inc., 98 F.Supp. 3d 277, 285 (D. Mass.
2015) (quoting Donovan v. Philip Morris USA, Inc., No.
06-12234-DJC, 2012 WL 957633, at *21 (D. Mass. Mar. 21,
class members claims raise the same common issues: (1)
whether adding prejudgment interest to the lump sum amount
demanded in a Small Claims Statement of Claim is a false,
deceptive, or unfair misrepresentation in violation of the
FDCPA and Chapter 93A; and (2) whether calculating
prejudgment interest from the date a service is provided, and
not the date of demanding payment for it, falsely represents
the amount owed, in violation of the FDCPA and Chapter 93A.
Plaintiffs allege that White's conduct-adding prejudgment
interest to the lump sum amount demanded in small claims
complaints and calculating prejudgment interest from the date
medical service is provided instead of when the demand for
payment is made-affects class members in a virtually
identical manner. Commonality is therefore satisfied.
23(a)(3) requires that the claims and defenses of the class
representatives be "typical of the claims or defenses of
the class." Typicality examines "whether the named
[plaintiffs' claims] and the class claims are so
interrelated that the interests of the class members will be
fairly and adequately protected in their absence."
Dukes, 564 U.S. at 349 n.5; see also Garcia, 98
F.Supp. 3d at 288 ("The central inquiry in determining
whether a proposed class has typicality' is whether the
class representatives' claims have the same essential
characteristics as the claims of the other members of the
class." (internal quotation marks omitted)). Typicality
may be defeated "where the class representatives are
subject to unique defenses which threaten to become the focus
of the litigation." In re Credit Suisse-AOL Sec.
Litig., 253 F.R.D. 17, 23 (D. Mass. 2008).
claims are typical of the proposed class members' claims.
White's alleged conduct-adding prejudgment interest to
the lump sum amount demanded in small claims complaints and
calculating prejudgment interest from the date medical
service is provided instead of when the demand for payment is
made-affected them in a virtually identical way that it
affected class members. White argues that that many class
members' claims differ from Plaintiffs' claims
because, while Plaintiffs' small claims cases were
disposed of by Agreements for Judgment,  many class members
may have had their small claims cases against Trinity EMS
disposed of by default judgment. This difference is not
material. Regardless of how White disposed of the small
claims cases he filed for Trinity EMS, White's alleged
misconduct in how he commenced those cases against
Plaintiffs and the proposed class members is the same.
also argues that the individual Plaintiffs are subject to
unique procedural defenses because (i) Plaintiff Ann
Winn's claims are barred by res judicata as a
result of her voluntary dismissal of her counterclaims
against Trinity EMS for improper inclusion of debt in the
small claims complaint against her; (ii) both Plaintiffs'
claims are barred by collateral estoppel because they had
already litigated the amount of debt that they owed to
Trinity EMS; and (iii) Plaintiff Carol Lannan's FDCPA
claim is time-barred because it was filed more than one year
after Defendants' alleged FDCPA violation.
White argues that the dismissal of Winn's counterclaim
against Trinity EMS bars Winn's claims here against White
through claim preclusion. "Under federal law, a federal
court must give to a state-court judgment the same preclusive
effect as would be given to that judgment under the law of
the state in which the judgment was entered.'"
Torromeo v. Town of Fremont, NH, 438 F.3d 113,
115-16 (1st Cir. 2006), cert. denied 549 U.S. 886 (2006)
(quoting Migra v. Warren City Sch. Dist. Bd. of
Educ., 465 U.S. 75, 81 (1984)). Under Massachusetts law,
the "invocation of claim preclusion requires three
elements: (1) the identity or privity of the parties to the
present and prior actions, (2) identity of ...