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Lannan v. Levy & White

United States District Court, D. Massachusetts

May 11, 2016

CAROL LANNAN and ANN WINN, on behalf of themselves and others similarly situated, Plaintiffs,
v.
LEVY & WHITE and ROBERT R. WHITE, ESQ., Defendants.

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge

         I. Introduction

         Plaintiffs 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.

         II. Factual Background

         Trinity 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.[1]

         On 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. ¶ 2 [#38]; Pls.’ Statement Material Fact for Def.’s Mot. Summ. J. ¶ 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. ¶ 6 [#38]; Pls.’ Statement Material Fact for Def.’s Mot. Summ. J. ¶ 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. ¶ 1 [#42]; Def.’s Statement Material Fact for Pls.’ Mot. Summ. J. ¶ 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. ¶ 1 [#42]; Def.’s Statement Material Fact for Pls.’ Mot. Partial Summ. J. ¶ 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. ¶¶ 2, 5, 6 [#42]; Def.’s Statement Material Fact for Pl.’s Mot. Summ. J. ¶¶ 2, 5, 6 [#57].

         Plaintiff 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. ¶¶ 12-13 [#38]; Pls.’ Statement Material Fact for Def.’s Mot. Summ. J. ¶¶ 12-13 [#44]; Aff. Robert R. White Supp. Mot. Dismiss & Summ. J. Ex. 3 [#35-4].

         The 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. ¶ 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. ¶ 18 [#38]; Pls.’ Statement Material Fact for Def.’s Mot. Summ. J. ¶ 18 [#44].

         On November 21, 2014, Winn entered into an Agreement for Judgment for $1, 200. Def.’s Statement Material Fact for Def.’s Mot. Summ. J. ¶ 22 [#38]; Pls.’ Statement Material Fact for Def.’s Mot. Summ. J. ¶ 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 appeal.

         III. Procedural History

         On October 15, 2014, Plaintiffs commenced this action for violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e, 1692f (“FDCPA”) and Mass. Gen. Laws ch. 93, § 49, as actionable under Mass. Gen. Laws. ch. 93A, § 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.

         IV. Class Certification

         A. Proposed Classes

         Plaintiffs 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)”].

         They define the second class, the “Chapter 93A Class, ” identically, except that the time frame is “since October 15, 2010.”[2]

         B. Proposed Classes Satisfy the Requirements of Certification

         To 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.

         a. Requirements Under Rule 23(a)

         Under 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.

         i. Numerosity

         Plaintiffs 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).

         Plaintiffs 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 ¶ 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).

         As to subclasses (b), Defendant has admitted that he calculates prejudgment interest from the date Trinity EMS provides medical services, Pls.’ Mot. Class Certification Ex. 1 ¶ 10 [#31-1] (Response to Interrogatories), Ex. 3 ¶ 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 ¶¶ 4-5 [#31-4] (Decl. Alyssa Kutner). The numbers are sufficient to meet the numerosity requirement.

         ii. Commonality

         Plaintiffs 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, 2012)).

         The 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.

         iii. Typicality

         Rule 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).

         Plaintiffs’ 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, [3] 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.

         White 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 ...


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