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Gross v. Washington Mutual Bank

February 8, 2006


The opinion of the court was delivered by: Levy, United States Magistrate Judge


This case is before me on consent of the parties, pursuant to 28 U.S.C. § 636. Plaintiff Efrom Gross ("plaintiff") moves to certify this case as a class action, pursuant to Fed. R. Civ. P. 23, and for preliminary approval of the parties' class action settlement agreement. The motion is unopposed. For the reasons stated below, the motion is granted.


Plaintiff filed this case as a purported class action in July 2002, alleging that defendants sent collection letters that violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (the "FDCPA"). Plaintiff seeks only statutory damages. (See Plaintiff's Memorandum of Law, dated Sept. 30, 2004 ("Pl.'s Mem."), at 2.) The parties have now reached a settlement on a class basis.

Pursuant to 15 U.S.C. § 1692k(a)(2)(B), statutory damages in this case are capped at the lesser of $500,000 or one percent of defendants' net worth. It is undisputed that one percent of the net worth of defendant Washington Mutual Bank, F.A. ("Washington Mutual") meets the $500,000 cap. The settlement agreement requires defendant Washington Mutual to establish a settlement fund in the amount of $350,000. (See Motion for Certification of a Settlement Class, Appendix I.) Each class member who sends in a claim form is expected to receive $325, and all class members have the right to exclude themselves from the settlement or object. (Id.) In addition, the settlement fund will pay all administrative expenses, including the costs of mailing and publishing notice, as well as plaintiff's attorney's fees and costs in the amount of $115,000. (Id.) The settlement fund will also pay plaintiff $5,000 as compensation for his service as class representative. (Id.)


I. Motion for Class Certification

Plaintiff moves for certification of a class defined as: All borrowers of Dime Auto Finance who received a debt collection letter[s] from attorney Michael F. King during the period from July 22, 2001 through December 31, 2003. (Proposed Order for Temporary and Conditional Certification of Settlement Class at 2.) In order to certify a class, a litigant must meet the four requirements of Fed. R. Civ. P. 23(a) and demonstrate that the proposed class action fits into one of the three categories described in Rule 23(b). See Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968). Although the plaintiff has the burden of proving that its proposed class is appropriate for certification (Harrison v. Great Springwaters of Am., No. 96-CV-5110, 1997 WL 469996, at *3 (E.D.N.Y. June 18, 1997)), the plaintiff is not obliged to make an extensive evidentiary showing in support of its motion. Jones v. Ford Motor Credit Co., No. 00 Civ. 8330, 2005 WL 743213, at *5 (S.D.N.Y. Mar. 31, 2005) (citing Follette v. Vitanza, 658 F. Supp. 492, 505 (N.D.N.Y. 1987), vacated in part on other grounds, 671 F. Supp. 1362 (N.D.N.Y. 1987)). Moreover, in considering a motion for class certification, the court must assume the truth of the plaintiff's allegations. In re AMF Bowling Sec. Litig., No. 99-3023, 2002 WL 461513, at *3 (S.D.N.Y. Mar. 25, 2002) ("Although a court must conduct a rigorous inquiry in determining whether the requirements of Rule 23 have been satisfied, it must accept plaintiffs' allegations as true and refrain from conducting an examination of the merits when determining the propriety of class certification"); see also Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999); Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n. 15 (2d Cir. 1978); Ventura v. New York City Health and Hosps., Corp., 125 F.R.D. 595, 598 (S.D.N.Y. 1989); DeAllaume v. Perales, 110 F.R.D. 299, 305 (S.D.N.Y. 1986).

A. The Requirements of Rule 23(a)

Rule 23(a) provides, in pertinent part: One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). Each of these requirements will be addressed in turn.

1. Numerosity Requirement -- Rule 23(a)(1)

The numerosity requirement is satisfied when the class is large enough to make ordinary joinder of all members impracticable. Fed. R. Civ. P. 23(a)(1). The plaintiff is not obligated to identify the exact number of class plaintiffs (see Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993)), and "courts may 'make common sense assumptions' to support a finding of numerosity." Weissman v. ABC Fin. Servs., Inc., 203 F.R.D. 81, 84 (E.D.N.Y. 2001) (quoting Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 69 (E.D.N.Y. 2000)). However, a plaintiff seeking class certification bears the burden of showing some evidence of the number of class members or, at least, a reasonable estimate. See id. Generally, numerosity is presumed when a class comprises forty members or more. See id. (citing Robidoux, 987 F.2d at 936 (2d Cir. 1993)).

Here, the parties estimate that the class contains approximately 700 members. (Pl.'s Mem. at 4.) Where a class is this large, common sense dictates that joinder will be ...

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