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Dotson v. Portfolio Recovery Associates

June 3, 2009

LINWOOD DOTSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC



The opinion of the court was delivered by: Norma L. Shapiro, J.

OPINION

Plaintiff filed this putative class action for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"). Plaintiff moved for class certification. The motion will be denied.

I. BACKGROUND

The complaint alleges plaintiff received a dunning letter concerning his debt "obligations incurred primarily for personal, family or household use" from defendant's "Legal Department." Compl. ¶¶ 6, 12. (paper no. 1). The letter stated that plaintiff's account had "been referred to the Legal Department of Portfolio Recovery Associates, LLC for collection." Compl. ¶ 6. Plaintiff claims, "In sending the collection notice complained of, Portfolio violated the Fair Debt Collection Practice Act [sic] by falsely, deceptively or misleadingly creating the impression in the consumer that the collection letter was prepared, reviewed, or sent by a lawyer when it was not. An attorney did not personally author the letter nor have any meaningful involvement in the sending of the letter, nor collection of the debt alleged due from Dotson (and the Class)."

Compl. ¶ 10. Under Federal Rule of Civil Procedure 23, plaintiff moves to certify a proposed class of 4,019 Pennsylvania residents to whom defendant sent substantially identical collection letters.

Defendant, denying liability, argues the letter was not false or misleading. "The letter . . . does not imply attorney involvement in the drafting, review or sending of the letter. Rather, when read as a whole, there can be no false or deceptive implication that an attorney sent the letter. The letter clearly states that it is from a debt collector and that the account may be placed with local counsel for suit." Ans., p. 7 (paper no. 5). Defendant also attacks plaintiff's credibility; it calls particular attention to plaintiff's false testimony about his three prior claims filed in this district under the FDCPA. Each of plaintiff's prior actions was filed by attorney Theodore Lorenz, plaintiff's counsel in this action.

II. DISCUSSION

Class certification under Federal Rule of Civil Procedure 23 is committed to the discretion of the district court. Califano v. Yamasaki, 442 U.S. 682, 703 (1979). Rule 23(a) provides four prerequisites for class certification:

One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(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). To certify a class, the court must perform a rigorous analysis of Rule 23(a) requirements and find that all four requirements have been satisfied. Beck v. Maximus, Inc., 457 F.3d 291, 297 (3d Cir. 2006). See also In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 309 n.6 (3d Cir. 2008) (vacating district court's order of class certification). "[T]he decision to certify a class calls for findings by the court, not merely a 'threshold showing' by a party, that each requirement of Rule 23 is met. Factual determinations supporting Rule 23 findings must be made by a preponderance of the evidence. [T]he court must resolve all factual or legal disputes relevant to class certification, even if they overlap with the merits--including disputes touching on elements ...


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