Opinion
No. 00 C 6819.
January 16, 2001.
MEMORANDUM OPINION AND ORDER
Joseph Monahan ("Monahan") has filed a Motion and Memorandum in Support of Class Certification, seeking a determination under Fed.R.Civ.P. ("Rule") 23 that this action brought by him under the Fair Debt Collection Practices Act ("Act") should be maintained as a class action. In turn NCO Financial Systems, Inc. ("NCO") has filed its objections to that motion, rendering it ripe for resolution, For the reasons briefly stated in this memorandum opinion and order, Monahan's motion is denied.
Rule 23(c)(1) directs that a class certification determination should be made "[a]s soon as practicable after the commencement of an action brought as a class action," But in this instance it is painfully apparent that it is not now "practicable" to give an affirmative answer to that question: When one cuts through the welter of cases that have been cited by Monahan's counsel to focus instead on the real issues, what emerges is the undeniable conclusion that counsel has offered up nothing more than speculation and mere ipse dixits in place of the factual background that is necessary to determine whether three of the four Rule 23(a) factors — numerosity, commonality and typicality — have or have not been satisfied. In light of the nature of the communications that have been charged by Monahan as violative of the Act, this Court cannot accept his counsel's conclusory assertions (or take some sort of proposed judicial notice) as a substitute for the essential factual showing.
In accordance with universal practice, this opinion employs "certification" as the shorthand term for Rule 23's more precise language that speaks of whether an "action may be maintained as a class action" (Rule 23(b) and 23(c)(1)). In the same way, the customary shorthand terminology of "numerosity," "commonality," "typicality" and "adequacy of representation" will be used here to denote the four criteria that are specified in Rule 23(a) as preconditions for certification.
Accordingly, for the reasons that have been persuasively set out in NCO's Objections to Plaintiff's Motion for Class Certification, Monahan's motion for class certification is denied for the present. It should of course be understood that this ruling is not at all equivalent to a holding that class certification is not a possibility at some future time, based on an appropriate showing. What is clear instead is that no adequate showing on that score has now been made.
As discussed at the recent status hearing in this matter, it is appropriate to hold another status hearing shortly (after counsel for the litigants have had the opportunity to consider the effect of this ruling on the future conduct of the litigation). That new status hearing is set for 9 a.m. January 26, 2001.