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Kijltg v. Midland Funding, LLC

United States District Court, S.D. New York

November 20, 2014

CAROL KIJLTG, on behalf of herself and all others similarly situated, Plaintiff,
v.
MIDLAND FUNDING, LLC, MIDLAND CREDIT MANAGEMENT, INC., ENCORE CAPITAL GROUP, INC. formerly MCM CAPITAL GROUP, INC., and AMANDA PEREZ, Defendants

For Carol Kulig, on behalf of herself and all others similarly situated, Plaintiff: Ahmad Keshavarz, Ahmad Keshavarz, Law Offices, Brooklyn, NY; Charles M. Delbaum, National Consumer Law Center, Boston, MA; Michael Elia Pereira, The Law Office of Ahmad Keshavarz, Brooklyn, NY.

For Midland Funding, L.L.C., Midland Credit Management, Inc., Encore Capital Group, Inc., formerly known as MCM Capital Group, Inc., Amanda Perez, Defendants: Charles P. Greenman, Troutman Sanders LLP, New York, NY; Karen F. Lederer, Kevin Patrick Wallace, Troutman Sanders LLP (NYC), New York, NY; Timothy James St. George, Troutman Sanders LLP (VA), Richmond, VA.

MEMORANDUM AND ORDER

P. Kevin Castel, United States District Judge.

In a Memorandum and Order dated September 26, 2014, this Court denied plaintiff Carol Kulig's motion to certify a class of individuals against whom she alleges the defendants (collectively, " Midland") systematically filed time-barred debt collections lawsuits. 2014 WL 5017817 (S.D.N.Y. Sept. 26, 2014). The Court did so because it concluded that Kulig's counsel, Ahmad Keshavarz, would not be able to " fairly and adequately represent the interests of the class, " as required by Rule 23(g)(4), Fed.R.Civ.P. Kulig now moves for reconsideration of the order, or to alter the order pursuant to Rule 23(c)(1)(C). For the following reasons, her motion is denied.

" An order that grants or denies class certification may be altered or amended before final judgment." Rule 23(c)(1)(C), Fed.R.Civ.P. " District courts have ample discretion to consider . . . a revised class certification motion after an initial denial, " In re Initial Pub. Offering Sec. Litig., 483 F.3d 70, 73 (2d Cir. 2006), and may revisit a prior decision on certification if the movant has identified " compelling reasons such as an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." In re J.P. Morgan Chase Cash Balance Litig., 255 F.R.D. 130, 133 (S.D.N.Y. 2009) (quoting Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008)).

The Court's decision to deny certification was based in large part on Keshavarz's failure to communicate a settlement offer to his client. In his reply brief in support of the motion for certification, Keshavarz conceded that he had failed to communicate an offer, but argued that " [t]here was no point in [doing so] when Midland had not yet provided the responses to discovery requests that counsel needed in order to completely evaluate the offer and advise Ms. Kulig about it." (Pl.'s Reply Br. in Supp. of Class Certification 7.) The Court noted that this did not appear to be " an instance of an inadvertent lapse in communication." 2014 WL 5017817, at *4. It stated, further, that Kulig " can be expected to know what injury she suffered, " and should have been able to evaluate the offer from Midland herself, without any need for additional document discovery. Id.

Keshavarz now clarifies that there were in fact two settlement offers: an individual offer of settlement of $20, 000, made on January 31, 2014, and an offer to the class, made on June 17, 2014. (Pl.'s Mem. 1-2.) He claims that he in fact communicated the first offer, and that Kulig rejected it. (Dkt. No. 115, ¶ 4.) The passage from the reply brief quoted above, he states, actually referred to the class-wide settlement offer. Moreover, he claims that the failure to transmit that offer (which he concedes) was inadvertent (id. ¶ 7), and that the passage, rather than serving as a justification for the failure, attempted only to show that the failure did not harm the interests of the class.

In support of his contention that he communicated the $20, 000 offer, Keshavarz has submitted his own declaration (Dkt. No. 115), but no declaration or affidavit from Kulig herself. The only sworn statements from Kulig on the subject are the following extracts from her July 15, 2014 deposition:

Q: Are you aware of whether the defendants previously offered to settle this case with you for $20, 000?
MR. KESHAVARZ: Objection to the form.
A: I just need to ask--I don't know myself.
Q: Is that familiar to you that the defendants previously offered to settle this case ...

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