United States District Court, E.D. Washington
MYRON HARGREAVES, CORTNEY HALVORSEN, BONNIE FREEMAN, and all others similarly situated, Plaintiffs,
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
O. RICE Chief United States District Judge
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.
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.
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.
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.
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.
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; Defendant
Associated joins therein. See ECF Nos. 50, 51.
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
1. Rule 23(a) Numerosity Requirement
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).
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.”).
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. 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 ...