United States District Court, W.D. Missouri, Western Division
Dearest Nathaniel Lovelace, Plaintiff, represented by Sander
C. Sowers, Lear & Werts, LLP, Terry Lee Lawson, Lawson Law
Center LLC & Todd C. Werts, Lear & Werts, LLP.
Funding, LLC, Defendant, represented by David M. Schultz,
Hinshaw & Culbertson, Terese A. Drew, Hinshaw & Culbertson &
Vitaly Libman, Hinshaw & Culbertson.
F. SACHS, District Judge.
an action brought under the Fair Debt Collection Practices
Act, 15 U.S.C. Â§ 1692, et seq.
Nathaniel Lovelace used his Sears Department Store Credit
Card to purchase goods from Sears. Lovelace did not make the
required payments on his credit card account. Defendant LVNV
purchased defaulted accounts for the purpose of collecting
unpaid balances, and included was Lovelace's Sears
account. LVNV sued on the account and Lovelace now asserts
that it violated the Fair Debt Collection Practices Act
because the debt was time-barred.
Lovelace's position is that in determining whether the
debt was within the statute of limitation period, LVNV used
Missouri's five-year general statute of limitations for
credit card debt when it should have used the four-year
statute of limitations contained in the Uniform Commercial
Code for the breach of contract for sale. Lovelace goes on to
argue that class action certification is appropriate for
debts that LVNV attempted to collect in states where the
statute of limitations for the credit card debt is longer
than the four-year statute of limitations contained in the
UCC for suits alleging "breach of any contract for
sale." UCC, Â§ 2-725. Lovelace has identified ten states
which fit this profile and up to 76 potential class members.
Pending before the Court is Plaintiff's Motion for Class
Certification. (Doc. 30). Lovelace defines the
proposed class as:
All individuals against whom LVNV filed a lawsuit in the
states of Hawaii, Illinois, Indiana, Michigan, Montana,
Missouri, Ohio, South Dakota, Utah and Washington, for the
collection of alleged consumer debts, arising from the use of
a Sears department store card more than four years after the
accrual of the statute of limitation on that claim, under
Article II, Â§ 725 of the Uniform Commercial Code during the
time period of October 10, 2012, to the present.
actions are governed by Federal Rule of Civil Procedure 23
which is "designed to further procedural fairness and
efficiency." Shady Grove Orthopedic Assocs. v.
Allstate Ins. Co., 559 U.S. 393, 402 (2010). Rule 23
(c)(1)(A) requires that "[a]t an early practicable time
after a person sues or is sued as a class representative, the
court must determine by order whether to certify the action
as a class action." Under Federal Rule 23(a) the
proposed class must first satisfy the requirements of
numerosity, commonality, typicality, and fair and adequate
representation. Second, the proposed class must meet at least
one of the three requirements of Rule 23(b). Barfield v.
Sho-Me Power Elec. Coop, 2013 WL 3872181 (W.D. Mo.).
deciding a motion for class certification, the court conducts
a "limited preliminary inquiry" that looks behind
pleadings only so far as to determine whether, given the
factual setting of the case, the plaintiffs general
allegations are true, common evidence could suffice to make
out a prima facie case for the class. Janson v.
Legalzoom.com, Inc., 271 F.R.D. 506, 509-10 (W.D. Mo.
2010). Plaintiffs bear the burden of demonstrating Rule
23's requirements are satisfied. Coleman v.
Watt, 40 F.3d 255, 258 (8th Cir 1994). The Court is
required to conduct a "rigorous analysis" that
entails looking behind the pleading and ascertaining the
nature of Plaintiffs' claims as well as the nature of the
evidence. The Court is not permitted to resolve the merits,
but "frequently that rigorous analysis' will entail
some overlap with the merits of the plaintiffs'
underlying claims." Wal-Mart Stores, Inc. v.
Dukes, 131 S.Ct. 2541 (2011).
argues that he has satisfied the numerosity, commonality,
typicality, and fair and adequate representation requirements
or Rule 23(a). Lovelace also contends that he has satisfied
the Rule 23(b)(3) requirement that common questions of law or
fact predominate over questions affecting only individual
members and that a class action would be superior to other
available methods of adjudicating the controversy.
Defendants' briefing specifically challenges numerosity
begins his analysis by saying that Rule 23's numerosity
requirement is easily satisfied because he has identified at
least 76 consumers who were sued by LVNV on a Sears Card debt
more than four years after their last payment, and another
102 consumers for whom additional information will be
reviewed to determine whether they fit the class definition.
Plaintiff believes that the proposed class meets the
commonality requirement because the question of whether the
UCC's four-year statute of limitations applies to the
Sears card debts is a common question that links the class
members. LVNV responds that none of the Rule 23 requirements
are satisfied and that the proposed class would include
consumers who would be collaterally attacking a state court
judgment in federal court and this would be precluded by the
Rooker-Feldman doctrine and the doctrine of res judicata.
analysis of numerosity and commonality often overlap and for
the purpose of this Order, the two will be analyzed together.
The Supreme Court in Wal-Mart Stores, Inc., 131
S.Ct. at 2551, addressed the issue of commonality:
Commonality requires the plaintiff to demonstrate that the
class members have suffered the same injury. This does not
mean merely that they have all suffered a violation of the
same provision of law.... Their claims must depend upon a
common contention... that is capable of class wide resolution
- which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one
of the claims in one stroke.
Eighth Circuit has held that commonality required an issue
(1) linking the class members (2) that was substantially
related to the litigation's resolution. DeBoer v.