Opinion
IP 98-1319-C-B/S.
December 22, 2000.
ENTRY GRANTING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
In our September 29, 2000 Entry Resolving Pending Motions, we granted Plaintiff leave to amend the Complaint to substitute Johnathan Hill as proposed class representative and expressed our view that this case satisfies the requirements set forth in Rule 23 of the Federal Rules of Civil Procedure for class certification. We did not certify the cause as a class action under Rule 23(b)(3) at that time; instead, we decided to wait to allow Defendant, Priority Financial Services, Inc. (PFS), to conduct some discovery in the event that there was some reason "why we should not: certify this action as a class action under Federal Rule of Civil Procedure 23(b)(3), define the class as those individuals who were sent a Notice of Claim by Brian Jennings on behalf of PFS to collect a consumer debt between September 24, 1997 and September 23, 1998, name Johnathan Hill as class representative and Clifford Shepard as class counsel, order Plaintiff to send notices of opt-out rights to absent class members, and set a date for a bench trial." September 29, 2000 Entry Resolving Pending Motions.
We noted that, "[p]ursuant to Magistrate Judge V. Sue Shields' November 16, 1999 Entry, the parties would have 30 days from the date of our final decision regarding class certification to file summary judgment motions on liability issues."
In the previous entry, we hoped to emphasize that if PFS wished to attack Hill's adequacy as a class representative, it should focus on the key issue of whether Hill has interests antagonistic to those of the class-at-large. In its response to our show-cause order, PFS did not demonstrate that Hill's interests conflict in any way with those of other class members. Instead, PFS continued to offer reasons for challenging Hill's representation of the class that are unsupported by the facts or the case law.
PFS argued that Hill would be a poor representative due to his condition as "a mental patient" and the fact that Hill once failed to appear at a small claims hearing because he was in jail. After reviewing the relevant portions of Hill's deposition testimony, we believe that PFS vastly overstated the extent of Hill's emotional problems. For example, PFS would have us believe that Hill thinks Yvonne Clark, the previous proposed class representative, was abducted by aliens. However, upon reading the "alien" exchange in context, it seems to us that Hill was using sarcasm to convey to defense counsel that he (Hill) had no idea what happened to Clark. See Hill Dep. at 84. There is nothing to suggest that Hill is currently undergoing treatment for mental illness; but, even if he were "a mental patient," PFS has no evidence that Hill's depression or other disorder would affect his understanding of the case, his processing of information, or his ability to perform his duties as class representative. Furthermore, the fact that Hill missed a court date in 1998 because he was in jail does not prove that Hill is likely to be an irresponsible representative; there is no evidence that Hill has been in trouble with the law since that occasion. Hill's appearance at the deposition indicates that he will be able to meet his obligations as class representative, and we note that we may decertify the class if Hill becomes unavailable and it appears that there is no adequate class representative.
Although the child molestation charges against Hill are not relevant to his ability to represent this class, we note that the charges were dropped.
PFS contends that we should not certify the class because Hill is not financially capable of supporting this litigation. The law of our circuit does not place such an onerous burden on a class action plaintiff. See Rand v. Monsanto Co., 926 F.2d 596, (7th Cir. 1991) (discussing economics of class actions with small individual stakes and holding "that a district court may not establish a per se rule that the representative plaintiff must be willing to bear all (as opposed to a pro rata share) of the costs of the action.") Hill testified that he is willing and able to pay his fair share of the costs. Dep. at 103.
Similarly unavailing is PFS's argument that Hill does not understand the legal process or grasp the legal issues underlying this case. In Rand, the court emphasized an inquiry into the named plaintiff's commitment to pursuing the action to ensure that "the `representative' in a class action is not a fictive concept." 926 F.2d at 599. We will not require a named plaintiff to memorize all of the facts of the case before we deem him an adequate class representative; Hill's deposition testimony reveals his familiarity with the facts underlying the suit, his conception of its basic legal propositions, and his desire to pursue the FDCPA claims of the class against PFS. "[P]roposed representatives are not lawyers expected to understand intimately the legal nuances of the case." Hubler Chevrolet, Inc., et. al. v. General Motors Corp., 193 F.R.D. 574, 578 (S.D. Ind. 2000). Hill's knowledge and his genuine interest in the outcome of this litigation are sufficient to make him an adequate representative of the class. PFS has not demonstrated any conflict between Hill's interests and those of the class; to the contrary, Hill affirmed his understanding of his duty to represent the entire class fairly and equally.
Conclusion
PFS has not demonstrated that Hill is an inadequate class representative, that Plaintiff's proposed class otherwise fails to satisfy the requirements of Rule 23(a), or (in contrast to the findings set forth in our September 30, 2000 Entry Resolving Pending Motions) that the case is not maintainable under Rule 23(b)(3). Therefore, Plaintiff's Motion for Class Certification is GRANTED. Johnathan Hill will serve as the named class representative and Clifford Shepard as class counsel. The class is defined as all individuals who were sent a Notice of Claim by Brian Jennings on behalf of PFS to collect a consumer debt between September 24, 1997 and September 23, 1998. Plaintiff will be responsible for notifying all class members about the action and their right to opt-out pursuant to Rule 23(b)(3) and (c)(2), as detailed in our attached order. Certification of the class is conditional, subject to our power at any time prior to final judgment to revoke or alter class certification in the interests of justice and to ensure compliance with the requirements of Rule 23. See Fed.R.Civ.P. 23(c)(1); Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir.1977).
It is so ORDERED this day of December 2000.
ORDER
Upon consideration of the positions of the parties regarding the Plaintiff's March 15, 1999 Motion for Rule 23 Class Certification and for the reasons set forth in this Court's September 29, 2000 Entry Resolving Pending Motions and its Entry filed herewith,
IT IS HEREBY ORDERED that Plaintiff's Motion for Class Certification is GRANTED and a class under Fed.R.Civ.P. 23(b)(3) is certified, subject to alteration or amendment under Fed.R.Civ.P. 23(c), as follows:
All individuals who were sent a Notice of Claim by Brian Jennings on behalf of Defendant, Priority Financial Services to collect a consumer debt between September 24, 1997 and September 23, 1998.
IT IS FURTHER ORDERED that, subject to further order of the Court, Mr. Johnathan Hill is designated as class representatives and Clifford W. Shepard of the Consumer Protection Law Office is designated as counsel for the class.
IT IS FURTHER ORDERED that counsel for the class shall cause notice to be mailed by first class mail, postage prepaid, to all members of the class who can be identified through reasonable effort. The notice shall comply in all respects with Fed.R.Civ.P. 23(c)(2), shall inform class members of their right to opt out of the class, and shall be filed with the Court for approval no later than January 22, 2001. The final version shall be mailed to the class before February 20, 2001.
IT IS FURTHER ORDERED that class members may exclude themselves from the class by filing with counsel for the class written notification that they request exclusion from the class by April 2, 2001.
IT IS FURTHER ORDERED that counsel for the class file with the Clerk of Court by April 23, 2001, an affidavit identifying the persons to whom notice has been mailed and who have not timely requested exclusion. All dates are subject to the Court's modification or upon motion of the parties.