McCarter v. Kovitz Shifrin Nesbit
McCarter v. Kovitz Shifrin Nesbit
McCarter v. Kovitz Shifrin Nesbit
)
)
)
)
Plaintiff,
)
)
v.
)
)
KOVITZ SHIFRIN NESBIT, an Illinois )
professional corporation,
)
)
Defendant.
)
No. 13 C 3909
MEMORANDUM OPINION
Before the court are the plaintiffs: (1) motion for partial
class certification; (2) motion to strike; (3) motions for findings
of relatedness; and (4) motion to withdraw her motion to add an
additional plaintiff.
two
debt-collection
letters
demanding
past-due
condominium
The court has held that McCarters allegations with respect to the
December 3, 2012 letter state a claim against Kovitz under 15
U.S.C. 1692g. See McCarter v. Kovitz Shifrin Nesbit, 6 F.Supp.3d
797, 802 (N.D. Ill. 2013) ([P]ayment is demanded on or before the
expiration of thirty (30) days after the date of mailing of the
notice (emphasis added), when the thirty-day federal validation
period runs from receipt of the notice, and there is no explanation
of how those periods of time fit together.); see also 15 U.S.C.
1692g(b) (Collection activities and communications during the
thirty-day period may not overshadow or be inconsistent with the
disclosure of the consumers right to dispute the debt or request
the name and address of the original creditor. ).
McCarter also
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the court to certify Class A, only. (See Mot. for Partial Class
Cert. as to Count I, dated Mar. 14, 2014, Dkt. 61.)
Kovitz argues that the court should deny class certification
because McCarter and her attorneys will not adequately represent
the classs interests.
(See
Mot. to Strike Scandalous Matter, dated Apr. 24, 2014, Dkt. 75.)
After the parties fully briefed the class-certification motion and
the motion to strike, McCarter filed: (1) a motion to add Krystyna
Scehura as an additional class representative, (see Mot. to Add Pl.
and Proposed Class Rep., dated Sept. 30, 2014, Dkt. 84); and (2) a
motion for a finding that Lill v. Kovitz Shifrin Nesbit, 14-cv-2647
(N.D. Ill.) (Wood, J.) is related to this case and should be
reassigned to this court, (see Mot. to Relate Cases, dated Sept.
30,
2014,
Dkt.
86)).
Shortly
after
filing
these
motions,
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she must also establish that the proposed class satisfies one of
Rule 23(b)s criteria.
In this case,
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members' interests in
prosecution or defense
individually
of separate
Class A
1.
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letter.
then that finding will apply to all Illinois residents who received
the same letter during the class period. Thus, there is a question
of law common to the entire class.
3.
Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009)
McCarters
claim
is
atypical
because
it
Kovitz argues
has
arguable
Cir.
2014).
Thus,
it
is
irrelevant
whether
McCarter
F.3d 497, 501 (7th Cir. 1997) ([T]he question whether a dunning
letter violates the Fair Debt Collection Practices Act does not
require evidence that the recipient was confused or even, as we
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The same
divulge
information
that
she
deemed
personal
during
her
deposition; and (3) she did not disclose that one of her attorneys
in this case, Kenneth DucDuong, represented her in a lawsuit that
she filed against the Condo Association. (See Kovitzs Oppn at 24, 8-9.) According to Kovitz, the following testimony supports its
argument that McCarters poor memory will impair her ability to
represent the class:
Q.
A.
No.
Q.
A.
Q.
Is that a yes?
A.
Yes.
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Thats . . .
On the
whole, though, the portions of the transcript that Kovitz has cited
do not support the inference that McCarter was evasive.
(See,
e.g., id. at 20-21 (declining to state her birth date, but stating
her age); id. at 30 (declining to state the name of her current
business, but describing the nature of the business); id. at 39
(initially declining to identify the name of her former employer,
but then answering the question after prodding from counsel).) Nor
does
the
transcript
indicate
that
McCarter
is
reluctant
to
class
representatives
credibility
to
succeed,
the
party
McCarters
that
McCarter
deliberately
omitted
this
Kovitz
information
because she had already filed a motion for default in that matter
and was quietly setting it up for default, with a default judgment
indeed
entered
on
March
14,
2014,
about
which
the
[Condo
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Mr.
actions.
Lavery
has
significant
experience
litigating
class
as
McCarters
Ex.
to
Kovitzs
class-certification
Oppn.)
motion,
In
its
Kovitz
response
asserts,
to
on
It
sued
Legal
Helpers
for
circumventing
restrictions
on
In its
2/
Mr. DucDuong's class-action experience is limited.
(See DucDuong
Decl., attached as Ex. A to Mot. to Cert., 4.) Presumably, that is why he
associated with Mr. Lavery before filing McCarters class-certification motion.
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(Id.)
Hyslip & Taylor may have legal troubles in the future because one
of its attorneys was affiliated with a law firm that had legal
troubles in the past.
This speculation
With respect to
Instead, it relies
to Strike.)
Mr. DucDuong and Mr. Lavery will adequately represent the class.
c.
(See Def.s
Rule 23(b)
The central
already has rejected, see supra, Kovitz has not identified any
other issue that will uniquely impact particular class members.
The court concludes that common issues will predominate over any
questions affecting only individual class members.
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Finally, this
Class B
In a footnote to
Rule
3/
Kovitz asserts
The court has not found any recent Seventh Circuit authority directly
addressing this issue. The court, however, interpreted an earlier version of
Rule 23(c)(5) to require plaintiffs to establish the prerequisites for class
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does not discuss Class B at all. Accordingly, the court denies any
request to certify Class B.
II.
(Scehura) at 4.)
violations are similar, and in this case they are: the plaintiffs
in McCarter, Lill, and Scheura challenge the same form letter.
(See First Am. Compl., Lill, 14-cv-2647, Dkt. 16, 24-29 (Count
I); Compl., Scehura, Case No. 1:14-cv-8838, Dkt. 1, 19-25 (Count
I).)
(Compare Am.
Compl.
13
14-cv-2647,
(Class
Dkt.
16,
A),
with
29),
Am.
and
Compl.,
Compl.,
Lill,
Case
No.
Scehura,
Case
No.
14-cv-8838, Dkt. 1, 13); see also N.D. Ill. L.R. 40.4(a)(4) (two
or more class action suits may be related if one or more of the
classes involved in the cases is or are the same).
The court
finds that the Lill and Scehura are related to this case.
The cases also satisfy Local Rule 40.4(b)s conditions for
reassigning related cases.
It
would be more efficient for one judge to oversee the issues common
to all three lawsuits: class certification, class notice and
administration, and liability with respect to the form debtcollection letter.
Although
the
court
can
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set
short
dates
for
their
The motions
will be fully briefed before the end of January, and they track
some of the arguments that this court has already considered and
rejected. (See Mot. to Dismiss, Scehura, Case No. 14-cv-8838, Dkt.
13, at 4; Mot. to Dismiss, Lill, 14-cv-2647, Dkt. 23, at 2-5.)
Finally, the plaintiff in Lill alleges a claim against Kovitz based
upon its collection attempts after sending the initial debtcollection
letter.
(See
First
Am.
Compl.,
Dkt.
16,
Lill,
CONCLUSION
For
the
foregoing
reasons,
the
court:
(1)
grants
the
14-cv-8838 (N.D. Ill.) are related to this case [86 and 99]; and
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DATE:
January 5, 2015
ENTER:
_______________________________________________
Amy St. Eve, United States District Judge
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