United States District Court, D. Colorado
KELLIE RHODES, on behalf of herself and others similarly situated, Plaintiff,
OLSON ASSOCIATES, P.C., d/b/a OLSON SHANER, Defendant
For Kellie Rhodes, on behalf of herself and others similarly situated, Plaintiff: Michael Lewis Greenwald, Greenwald Davidson, PLLC, Boca Raton, FL.
For Olson Associates, P.C., doing business as Olson Shaner, Defendant: Steven J. Wienczkowski, Adam L. Plotkin, P.C., Denver, CO.
ORDER DENYING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT, GRANTING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY, AND CERTIFYING CLASS ACTION
CHRISTINE M. ARGUELLO, United States District Judge.
This matter comes before the Court on Defendant Olson Associates, d/b/a Olson Shaner's (" Olson Shaner's" ) Motion for Summary Judgment (Doc. # 13), as well as Plaintiff Kellie Rhodes' Cross-Motion for Summary Judgment as to Liability (Doc. # 24) and her Motion for Class Certification and Appointment of Class Counsel (Doc. # 25.) Because the Court determines that there are no disputed facts as to whether Defendant's conduct violated the Fair Debt Collection Practices Act, it denies Defendant's Motion for Summary Judgment and grants Plaintiff's Cross-Motion for Summary Judgment. In addition, because the Court finds that Plaintiffs have met all of the requirements of Federal Rule 23(a), the Court grants Plaintiff's Motion for Class Certification and Appointment of Class Counsel.
A. OLSON SHANER'S VOICEMAILS
The material facts of this Fair Debt Collection Practice Act case are quite straightforward. Plaintiff Kellie Rhodes incurred a debt of $732.06 for emergency medical care from APEX Emergency Group-St. Anthony North. APEX assigned this debt to North American Recovery, Inc. (N.A.R.). (Doc. # 23-2 at 2.) Thereafter, N.A.R. hired Olson Associates, P.C., d/b/a Olson Shaner, a law firm, to initiate legal proceedings against Rhodes relating to this debt. (Doc. ## 13 at ¶ 4.) Olson Shaner sent its " First Notice" regarding the debt to Rhodes on July 30, 2014. (Doc. # 13-1 at ¶ 6.) The " First Notice" appeared on Olson Shaner's letterhead, but was signed by " Kelsey Mirelez, Attorney for N.A.R., Inc." (Doc. # 23-2 at 2.)
Plaintiff called Olson Shaner on September 6, 2013, and spoke with a representative named Liz;  Liz notified Plaintiff that she was speaking to Plaintiff in " an attempt to collect a debt," and that " [a]ny information obtained w[ould] be used for that purpose and this call [was] being recorded." (Doc. # 13-3.) During the call, Plaintiff acknowledged receiving a letter " from an N.A.R. Attorney." ( Id. at 4:9-10.) Additionally, Plaintiff stated that she was calling to obtain the name of that attorney, as she had lost the letter during a move. ( Id. at 3:13-16; 4:10-13.) Notwithstanding Liz's offers to answer questions regarding Plaintiff's account, Plaintiff stated that she wished to obtain a mailing address so she could respond in writing: " What I'd like to do is respond in writing and I'm just looking -- I got a letter and I'm just looking for a -- like a mailing address where I could mail you a written response." ( Id. at 5:9-12.) Liz provided Plaintiff with this name (Kelsie Morales) and two mailing addresses (one in Utah and one in Colorado). ( Id. at 3:13; 5:18-20; 7:12-18.) The next day, Plaintiff sent a letter to Ms. Morales regarding her debt at both of these addresses. (Doc. # 13-4.) Her letter indicated that the debt was referred to N.A.R. for repayment, despite the fact she had been making monthly payments to the original creditor. ( Id.)
Olson Shaner instructs its employees to use the following scripted voicemail message (" the Scripted Voicemail" ) when they attempt to reach alleged debtors and those debtors do not answer the phone:
Hello, this message is for [debtor/co-debtor]. My name is [Olson Shaner employee's name] and I am with Olson Shaner. Please return my call regarding a personal matter. I will be in the office today until [time], and will return [tomorrow/on Monday] at [time]. I can be reached at 801-363-9966 (UT/ID) 303-459-4799 (CO).
(Doc. # 23-3.) On September 17, 2013, an Olson Shaner representative named Tia Metters left Plaintiff a materially identical version of the Scripted Voicemail, which was recorded as follows:
Hi, this message is for Kellie Rhodes. Kellie, this is Tia with the law firm of Olson Shaner. Please return my call regarding a personal matter. I'll be in the office today until five and I will return tomorrow morning at 8:30. You can reach me at 303-459-4799. Thank you.
(Doc. ## 13-5; 13-2 at 2 (log notes indicating that Defendant's representative " left script message" for Plaintiff on September 17.)) Ms. Metters left an identical voicemail message for Plaintiff on both September 18 and 19, 2013. (Doc. ## 13-6; 13-7; 13-2.) The content of these three messages is the subject of this action.
B. CLASS CERTIFICATION
In her Motion for Class Certification and Appointment of Class Counsel (Doc. # 25), Plaintiff seeks to certify the following Class:
All persons (1) located in Colorado, (2) for whom Olson Associates, P.C. left, or caused to be left, a voice message, (3) in connection with the collection of a consumer debt, (4) between March 31, 2013 and March 30, 2014, (5) that failed to state that Olson Associates, P.C. was a debt collector and/or that the purpose of the call was to collect a debt and/or that any information would be used for that purpose.
Defendant has a written policy to leave scripted voicemail messages that are very similar to those left for Plaintiff and that fail to disclose that (1) it is debt collector, (2) it is calling to collect on a debt, and (3) that any information it collects will be used for that purpose. See (Doc. ## 25-1 (Defendant's " Leaving Message Policy," bates stamped OS000039); 25-2 at 9 (Defendant's Responses to Plaintiff's First Set of Interrogatories, stating that " Any voicemail message that would have been left is expected to be consistent with the voicemails at issue in this case and the document attached hereto, carrying Bates-Stamp No. OS000039." ))
Defendant states that of its approximate 6,700 collection accounts, " the likelihood that Defendant would have left a voicemail message is estimated to be about 50% of those accounts [i.e., 3350 accounts]. However . . . Defendant would not be able to determine the exact number of persons for whom Defendant left a message without reviewing each of those individual accounts." (Doc. # 25-2 at 8.) Additionally, Defendant keeps individual records indicating when its representatives leave a " SCRIPT MESSAGE" for alleged debtors. See, e.g. (Doc. # 13-2 at 2) (noting that it left Plaintiff a " SCRIPT MESSAGE" on three different occasions in September of 2013); (Doc. # 29 at 6) (noting that " In order to determine whether a voicemail message was left, each of the account notes would need to be reviewed to see if there are any notations regarding a voicemail message." )
C. PROCEDURAL HISTORY
On March 31, 2014, Plaintiff filed a putative Class Action Complaint against Defendant for violations of the FDCPA (Doc. # 1.) Defendant then filed a Motion for Summary Judgment on June 6, 2014. (Doc. # 13.) Plaintiff filed a Cross-Motion for Summary Judgment as to Liability on July 9, 2014, and a Motion for Class Certification and Appointment of Class Counsel on July 18, 2014. (Doc. ## 24, 25.)
II. LEGAL STANDARDS
A. SUMMARY JUDGMENT
Summary judgment is warranted when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is " material" if it is essential to the proper disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231--32 (10th Cir. 2001). A dispute is " genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, Okl., 119 F.3d 837, 839 (10th Cir. 1997). When reviewing motions for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id. However, conclusory statements based merely on conjecture, speculation, or subjective belief do not constitute competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
The moving party bears the initial burden of demonstrating an absence of a genuine dispute of material fact and entitlement to judgment as a matter of law. Id. In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial does not need to disprove the other party's claim; rather, the movant need simply point the Court to a lack of evidence for the other party on an essential element of that party's claim. Adler v. Wal-Mart Stores, 144 F.3d 664, 671 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Once the movant has met its initial burden, the burden then shifts to the nonmoving party to " set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party must " set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. " To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
The Court applies the same standard on cross motions for summary judgment. Each party bears the burden of establishing that no genuine issue of material fact exists and its entitlement to judgment as a matter of law. Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000). Cross motions for summary judgment " are to be treated separately; the denial of one does not require the grant of another." Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). But where the cross motions overlap, the Court may address the legal arguments together. Id. In this case, the legal issues and arguments presented by each summary judgment motion are almost identical. Therefore, the Court addresses the legal issues together.
B. CLASS CERTIFICATION
A class may be certified only if all four of the following prerequisites are met:
(1) Numerosity: " the class is so numerous that joinder of all members is impracticable" ;
(2) Commonality: " there are questions of law or fact that are common to the class" ;
(3) Typicality: " the claims or defenses of the representative parties are typical of the claims or defenses of the class" ; and
(4) Adequacy of representation: " the representative parties will fairly and adequately represent the interests of the class."
Fed. R. Civ. P. 23(a). A party seeking class certification must show " under a strict burden of proof" that all four requirements are clearly met, as well as show that the case falls into one of the three categories set forth in Rule 23(b). Trevizo v. Adams, 455 F.3d 1155, 1161-62 (10th Cir. 2006); Shook v. El Paso Cnty., 386 F.3d 963, 971 ...