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Hargreaves v. Associated Credit Services, Inc.

United States District Court, E.D. Washington

October 11, 2017

MYRON HARGREAVES, CORTNEY HALVORSEN, BONNIE FREEMAN, and all others similarly situated, Plaintiffs,
v.
ASSOCIATED CREDIT SERVICES, INC., a Washington corporation, and PAUL J. WASSON AND MONICA WASSON, individually and the marital community, Defendants.

          ORDER DENYING PLAINTIFFS' SECOND MOTION FOR CLASS CERTIFICATION

          THOMAS O. RICE Chief United States District Judge

         BEFORE THE COURT is Plaintiffs' Second Motion for Class Certification. ECF No. 47. The Court has reviewed the briefing, the record and files herein, and is fully informed. This matter was submitted for hearing without oral argument.

         BACKGROUND

         On April 1, 2016, Plaintiff Myron Hargreaves filed a putative class action against Defendant Associated Credit Services, Inc. (“Associated”) asserting violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.; the Washington Consumer Protection Act (“WCPA”), RCW § 19.86.010 et seq.; and the Washington Collection Agency Act (“WCAA”), RCW § 19.16.100. See ECF No. 1. On November 16, 2016, Plaintiff, along with Cortney Halvorsen and Bonnie Freeman (collectively, “Plaintiffs”), filed a First Amended Complaint adding Defendants Paul J. Wasson and Monica Wasson (collectively, the “Wasson Defendants”). ECF No. 14.

         Generally, Plaintiffs allege that judgment creditor, Associated, and its attorney, Mr. Wasson, misrepresented information in writs of garnishment, which allowed them to unlawfully garnish Plaintiffs' exempt property in their bank accounts in violation of the FDCPA. ECF No. 14 at ¶ 7.18. Plaintiffs contend that Associated and Mr. Wasson's same conduct also violates the WCPA and the WCAA. Id. at 18.

         The Court entered a scheduling order on November 18, 2016. ECF No. 16. Among other deadlines, Plaintiffs were required to file any motion for class certification no later than April 10, 2017. Id. at ¶ 2. On April 10, 2017, Plaintiffs moved to certify a class for all claims stemming from Defendants' alleged conduct in violation of the FDCPA and the WCPA by: (1) falsely asserting that judgment debtor assets are not exempt; (2) unlawfully garnishing property and collecting fees based on falsely certified writ applications; (3) making false, deceptive, and misleading statements to consumers about exemption rights; and (4) unlawfully profiting to the detriment of putative class members. ECF No. 32 at 4.

         The Court denied Plaintiffs' motion, but agreed to revisit the issue should Plaintiffs develop sufficient evidence to support the putative class size, ECF No. 42 at 23, while recognizing that the propriety of a class action sometimes cannot be determined without discovery, id. at 7-8. At that time, the Court reasoned that Plaintiffs' hunch that Defendants' allegedly unlawful practices have affected at least 100 Washington residents failed to satisfy the numerosity requirement, despite having nearly six months to conduct discovery.

         Plaintiffs renew their class certification request and argue that the numerosity requirement is now satisfied. See ECF Nos. 47-48. The Wasson Defendants oppose Plaintiffs' renewed request and request oral argument;[1] Defendant Associated joins therein. See ECF Nos. 50, 51.

         For purposes of the instant motion, the Court incorporates the facts and findings from its Order Denying Motion for Class Certification with Leave to Renew (ECF No. 42), except as supplemented below.

         DISCUSSION

          1. Rule 23(a) Numerosity Requirement

         A proposed class must be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). “Whether joinder would be impracticable depends on the facts and circumstances of each case and does not, as a matter of law, require any specific minimum number of class members.” Smith v. Univ. of Wash. Law Sch., 2 F.Supp.2d 1324, 1340 (W.D. Wash. 1998). A class consisting of 40 or more members, however, is presumed to be sufficiently numerous. In re Washington Mut. Mortgage-Backed Secs. Litig., 276 F.R.D. 658, 665 (W.D. Wash. 2011). Conversely, the Supreme Court has indicated that a class of 15 “would be too small to meet the numerosity requirement.” Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980). However, mere conjecture as to the number of members who fit within a proposed class definition does not satisfy the Rule. See Fed. R. Civ. P. 23(a)(1).

         The party seeking certification bears the burden of demonstrating that his or her claim satisfies Rule 23(a) and fits into one of the Rule 23(b) categories. United Steel v. ConocoPhillips Co., 593 F.3d 802, 807 (9th Cir. 2010). Finally, if a court divides a class into subclasses, the court must find that the subclasses independently meet all Rule 23(a)'s requirements. Newberg on Class Actions § 3:16 (footnotes omitted) (“When a party or a court seeks to create subclasses, it is generally settled that each subclass must independently satisfy each of the Rule 23 criteria.”).

         Here, Plaintiffs initially moved to certify a class for two separate claims for statutory damages: (1) violation of the FDCPA; and (2) violation of the WCPA. ECF No. 32 at 4-5; 38 at 6-7. Plaintiffs now expand the proposed class definition to also include violations of the WCAA. See ECF No. 54 at 5, 14. Plaintiffs argue that the Rule 23(a)(1) numerosity factor is satisfied based on information gleaned from a public records request for all cases filed in Spokane County by Defendant Associated seeking a writ of garnishment between January 1, 2012 and May 26, 2017.[2] ECF No. 47 at 2. Plaintiffs represent that Defendant Associated filed 2, 463 writs of garnishment in 1, 299 lawsuits during that time period and each writ contained a ...


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