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 United States 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. ¶ 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
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].
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].
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.
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.
move to certify two classes for statutory damages, each with
define the first class, the “FDCPA Class, ” to
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
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
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.
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)).
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
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 ...