Conrad v. General Motors Acceptance Corp.
Conrad v. General Motors Acceptance Corp.
Opinion of the Court
ORDER
This Order addresses Plaintiff Herman Scott Conrad’s motion for class certification [39]. For the reasons that follow, the Court denies the motion.
I. Conrad’s Claims
In 2006, Conrad entered into a contract with Defendant Ally Financial, Inc. (formerly known as General Motors Acceptance Corporation, GMAC, LLC, and GMAC, Inc.) (“Ally”) to finance a pickup truck. Beginning in 2009, Ally, through its collectors, made repeated phone calls to Conrad’s cellular telephone attempting to collect payment. During that time, Conrad alleges that he made at least seven requests that the calls cease. He also alleges that Ally similarly harassed other borrowers. Conrad brings two counts of Telephone Consumer Protection Act (“TCPA”) violations, 47 U.S.C. § 227, et seq., against Ally. He seeks to assert claims on behalf of:
All persons in the United States who, on or after November 4, 2006, received a non-emergency telephone call from [Ally] to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice and who did not provide prior express consent for such calls during the transaction that resulted in the debt owed.
II. Class Certification Standard
Under Federal Rule of Civil Procedure 23, courts must “determine by order
A case may proceed as a class action only if the trial court determines that the party moving for certification demonstrates that it has met all four prerequisites of Rule 23(a). Fed.R.Civ.P. 23(a); see also Vizena v. Union Pac. R.R. Co., 360 F.3d 496, 503 (5th Cir. 2004). Under Rule 23(a), the moving party must demonstrate that: (1) the class is so numerous that joinder of all members is impracticable (numerosity); (2) there are questions of law or fact common to the class (commonality); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality); and (4) the representative parties will fairly and adequately protect the interests of the class (adequacy). Fed.R.Civ.P. 23(a). Rule 23(a) also implicitly carries a requirement of definiteness, meaning that an identifiable class must exist. See John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (citing inter alia DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970) and 5 James W. Moore, et al., Moore’s Federal Practice § 23.21, at 23-47 (3d ed. 1997)); see also William B. Rubenstein, 1 Newberg on Class Actions § 3:2 (5th ed. 2011) [hereinafter Newberg]. An identifiable class exists if its members can be ascertained by reference to objective criteria (ascertainability). See In re Vioxx Prods. Liab. Litig., 2008 WL 4681368, at *9 (E.D.La. 2008) (citing Manual for Complex Litigation (Fourth) § 21.222 (2004)); see also Newberg § 3:3.
Additionally, the Court must determine that, according to Rule 23(b), a class action is the appropriate vehicle through which to resolve the litigation. FED. R. CIV. P. 23(b); see Vizena, 360 F.3d at 503. Rule 23(b) states, in relevant part, that a class action is appropriate if the moving party establishes the prerequisites set forth in Rule 23(a) and:
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole [ (cohesiveness) ]; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members [ (predominance) ], and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy [ (superiority) ].
Fed R. Civ. P. 23(b). The party seeking certification bears the burden of establishing that the putative class meets the requirements of Rule 23. Gene & Gene LLC v. Biopay LLC, 541 F.3d 318, 325 (5th Cir. 2008).
III. The Court Denies Conrad’s Motion
A. The Proposed Class Fails on Numerosity Grounds
Conrad argues that the Court may find numerosity based upon an inference from Ally’s call record logs and other evidence
Here, the parties stipulated to a sampling methodology of Ally’s records aimed at discovering additional classmembers[37-l] and notified the Court that they were engaged in discovery regarding class certification issues [44], but did not ultimately supplement the record. Thus, the only evidence from which the Court may infer that joinder is impracticable is that which Conrad provided concurrent with his motion. By his motion and appendices, Conrad has not shown that there are more than two putative class-members, one being himself—the other being a Jane Doe who was the new owner of Conrad’s cellular telephone number once he terminated use of that number. See Mot. 4-5. Even if this Court decided that it may legally infer numerosity in the first place, two putative classmembers is too few to give rise to such an inference. See Boykin v. Ga.-Pac. Corp., 706 F.2d 1384, 1386 (5th Cir. 1983) (finding numerosity requirement not met by proposed class with twenty members); Newberg § 3.12 (“As a general guideline ... a class that encompasses fewer than 20 members will likely not be certified absent other indications of impracticability of joinder, while a class of 40 or more members raises a presumption of impracticability of joinder based on numbers alone.”). Thus, Conrad’s proposed class fails on numerosity grounds.
B. The Proposed Class Fails on Predominance and Cohesiveness Grounds
Even if the Court were to have found the putative class sufficiently numerous and that it satisfied the remaining Rule 23(a) requirements, the class would fail under both Rule 23(b)(2) and Rule 23(b)(3) because individual issues preclude certification.
Here, one of the substantive issues that will control the outcome is whether the putative classmembers consented to Ally’s contacting them via their cellular telephones. See 47 U.S.C. § 227(b)(1)(A). A finding of consent precludes liability under the TCP A. Although Conrad alleges that Ally pursued a common course of conduct in making the calls, individual issues of consent would predominate at a trial on the merits if the Court were to certify the class. And, although Conrad argues that the consent issue is subject to generalized proof by examining certain fields in Ally’s database, his argument presumes that consent is denoted at all in Ally’s database and that if it is, such informa
Conclusion
Because the putative class is not sufficiently numerous or cohesive, and because individual issues predominate over issues common to the class, the Court denies Conrad’s motion.
. The Court does not address commonality.
Reference
- Full Case Name
- Herman Scott CONRAD v. GENERAL MOTORS ACCEPTANCE CORPORATION
- Cited By
- 2 cases
- Status
- Published