OPINION
Plaintiff filed this action on behalf of himself and others similarly situated, alleging that a debt collection letter that he received from Defendants violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. Presently before the Court is Plaintiffs motion for class certification and for summary judgment, in which Plaintiff also moves for an award of attorney’s fees [Docket Item 24]. For the reasons set forth below, the Court will grant Plaintiffs motion for class certification and for summary judg
I. BACKGROUND
A. Facts
This action arises out of debt collection letters that Defendants mailed to Plaintiff
On July 13, 2006, Defendants mailed Plaintiff a letter printed on Thomas & Cook letterhead (the “July 2006 letter”) pertaining to a debt that Plaintiff allegedly owed to Underwood Memorial Hospital (“UMH”). (Doherty Cert. Ex. 1.) The body of the letter contains four paragraphs which read as follows:
The above matter has been turned over to us for collection. There is due upon this account the sum of $2,557.00.
Before instituting suit upon this debt, we thought it advisable to offer you this opportunity of making payment without coercion. Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt, or any portion thereof, this office will assume the debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will: obtain verification of the debt and mail you a copy of such verification. If you request this office in writing within 30 days after receiving this notice, this office will: provide you with the name and address of the original creditor, if different from the current creditor. This is an attempt to collect a debt. Any information will be used for that purpose. If you would save yourself the annoyance and expense of legal action, kindly send us the amount due.
Let us hear from you before July 27, 2006.
(Doherty Cert. Ex. 1.) On August 4, 2006, Mr. Cook filed a lawsuit in the Superior Court of New Jersey against Mr. Stair on behalf of UMH in order to collect the debt. (Smith Cert. Ex. 5-c.) Plaintiff received the summons and complaint for the Superior Court lawsuit on August 18, 2006. (Compl. 118.)
Between September 20, 2005 and September 20, 2006, Defendants sent to 227 individuals similar debt collection letters. (Doherty Cert. U 4.) The parties do not dispute that the contents of these letters were identical in all relevant respects to the letter mailed to Plaintiff—while the individual letters contained different names, debt amounts, and dates, each letter provided the same two-week response window while also purporting to afford the recipient thirty days to dispute the debt. (Id.)
B. Procedural History
On September 20, 2006, Plaintiff, through his appointed power of attorney Dean Smith, filed his Complaint in this action, alleging on behalf of himself and the similarly situated recipients of Defendants’ debt collection letters that the letters violated various provisions of the FDCPA, including 15 U.S.C. § 1692g. (Compl. Hit 9-13.) Section 1692g requires that debt collectors provide certain information in writing to a consumer within five days of the “initial communication” with the consumer, and “mandates the debt collector to cease all collection efforts if the consumer provides written notice that he or she disputes the debt or requests the name of the original creditor until the debt collector mails either the debt verification or creditor’s name to the consumer.” Wilson v. Quadramed Corp.,
In its February 7, 2008 Opinion and Order, the Court denied Defendants’ motion for summary judgment. (Docket Items 20 and 21.) The Court first explained:
In addressing whether a debt collection letter comports with the Act’s notice provisions, the Court of Appeals for the Third Circuit has been clear that “statutory notice must not only explicate a debtor’s rights; it must do so effectively.” Grazi-ano v. Harrison,950 F.2d 107 , 111 (3d Cir.1991); see also Wilson,225 F.3d at 354 . The effectiveness of a collection letter’s provision of notice is to be “interpreted from the perspective of the ‘least sophisticated debtor.’ ” Graziano,950 F.2d at 111 . Applying this standard, courts have held that where the statutory notice in a debt collection letter is “overshadowed,” Swanson v. Southern Oregon Credit Service, Inc.,869 F.2d 1222 , 1225 (9th Cir.1988), or “contradicted by accompanying messages from the debt collector,” Graziano,950 F.2d at 111 , such notice has not been provided effectively within the meaning of 15 U.S.C. § 1692g.
(Docket Item 20 at 8-9.)
The Court then held that, under this “least sophisticated debtor” standard, the explication of section 1692g rights in Defendants’ letter to Plaintiff was contradicted and undermined by the letter’s remaining contents:
The Court [finds] ... that the statutory notice provisions in the July 2006 letter are sufficiently contradicted by its remaining contents that the least sophisticated debtor would harbor serious doubts as to his ability to dispute or verify the debt within thirty days. Foremost among the Court’s concerns regarding the likelihood that an unsophisticated debtor would misunderstand his rights upon reading the letter are the confusing timelines the letter presents. In the absence of its final sentence—“Let us hear from you before July 27, 2006”—the letter would make clear that the recipient risks “the annoyance and expense of legal action” and other “coercion,” but would also inform the recipient of his rights under 15 U.S.C. § 1692g. The final sentence, however, undermines the significance of the section 1692g notice, in that it announces a deadline far short of the thirty-day window but does nothing to reconcile this shorter time frame with the preceding statement of the debtor’s rights. The Court is convinced that an unsophisticated debtor, confronted with repeated threats of litigation and a two-week deadline, “would be induced to overlook his statutory right to dispute the debt within thirty days.” Graziano,950 F.2d at 111 .
(Id. at 11-12) (some internal citations omitted).
Finally, the Court noted, in light of the letter’s apparent noneompliance with the FDCPA, that Plaintiff, rather than Defendants, appeared to be entitled to judgment as a matter of law on the question of liability. (Id. at 15.) Recognizing, however, that “great care must be exercised to assure that the original movant has had an adequate opportunity to show that there is a genuine issue and that the opponent is not entitled to judgment as a matter of law,” 10A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed.2001), the Court afforded Defendants the opportunity to submit evidence in opposition to the entry of summary judgment in Plaintiffs favor as to the issue of liability. (Docket Item 20 at 15.)
Shortly after the Court issued its Opinion and Order denying Defendants’ motion for summary judgment, Plaintiff filed its motion for class certification and summary judgment [Docket Item 24], as amended to include a different form of proposed order [Docket Item 25], to the merits of which the Court now turns.
II. DISCUSSION
Plaintiff has moved to certify as a class the 227 consumers who received Defendants’ form letter between September 20, 2005 and September 20, 2006, and has moved for summary judgment as to liability and damages for this class’s claims. As the following discussion makes clear, the viability of both aspects of Plaintiffs motion turns in part on the resolution of a threshold legal question
A. Applicability of Section 1692g to the Initial Communications of Subsequent Debt Collectors
In opposing Plaintiffs motion, Defendants argue that summary judgment as to Mr. Stair’s claim should not be entered against them because although the July 2006 letter was Defendants’ “initial communication with [Mr. Stair] in connection with the collection of [his alleged] debt,” § 1692g, the fact that they were not the first debt collectors to communicate with Mr. Stair about this debt relieves them of any obligation to comply with the FD CPA’s notice and validation requirements.
Congress enacted the FDCPA “to eliminate abusive debt collection practices which contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.” Wilson,
[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any*196 portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
§ 1692g(a). Section 1692g(b) further provides that
f the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.
§ 1692g(b).
In determining whether section 1692g applies to the initial communications of subsequent debt collectors, the Court’s starting point, of course, is the statutory text. “In matters of statutory interpretation, the plain meaning of statutory language is often illuminated by considering not only the particular statutory language at issue, but also the structure of the section in which the key language is found, the design of the statute as a whole and its object.” United States v. Manzella,
Examination of “object” of the FDCPA and “the structure of the section in which the key language is found,” however, makes apparent that section 1692g’s notice requirements apply equally to the initial communications of first and subsequent debt collectors. Manzella,
The Court finds that Turneds concern over the loophole that Defendants’ interpretation of section 1692g would create is well-founded. Specifically, an unsophisticated consumer who receives a promise from the first debt collector that its collection efforts would cease upon a request for verification, and a letter from a subsequent debt collector containing no such promise, could reasonably question whether the potentially uninterrupted activities of the subsequent debt collector would interfere with his ability to exercise his verification rights. This is particularly true where, as here, the letter from the first debt collector states that “[i]f you notify this office ... within 30 days from receiving this
The Federal Trade Commission’s commentary (the “FTC Commentary”) to the FDCPA lends further support to the Court’s conclusion. The FTC Commentary, consistent with multiple informal advisory opinions the FTC has issued, (Doherty Cert. Exs. 7-8), states that
[a]n attorney who regularly attempts to collect debts by means other than litigation, such as writing the consumer demand letters (dunning notices) or calling the consumer on the phone about the obligation (except in response to a consumer’s call to him after suit has been commenced), must provide the required notice, even if a previous debt collector (or creditor) has given such a notice.
53 Fed.Reg. 50097, 50108 (1988) (emphasis added). While the Court recognizes that the FTC Commentary is “by no means binding,” Staub v. Harris,
In short, the Court finds that the interpretation of section 1692g advanced by Plaintiff, the FTC, and the above-cited cases is consistent with both the text and object of the FDCPA, and that Defendants’ interpretation would subvert the FDCPA’s purpose of “ehminat[ing] abusive debt collection practices,” Wilson,
B. Motion for Class Certification
1. Overview
“District courts have discretion under Rule 23 to certify a class.” Beck v. Maximus, Inc.,
2. Federal Rule of Civil Procedure 23(a)
Rule 23(a), Fed.R.Civ.P., provides:
*198 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). Plaintiff seeks to certify a class defined as:
All those 227 natural persons who received collection correspondence from the Defendants Rodman Cook and the Thomas & Cook law firm dated between September 20, 2005 through to September 20, 2006 seeking to collect upon a consumer debt and which included a 30[ ] day time frame to validate the debt yet sought a response within a time less than the 30 days. Excluded from the class are Plaintiffs counsel and the relatives of and employees under the direct oversight of the Honorable Jerome B. Simandle, J.U.S.D.C.
(Docket Item 27.) As the following discussion makes clear, the Court agrees with Plaintiff that the proposed class satisfies the four criteria of Rule 23(a).
a. Numerosity
The above-defined class satisfies the numerosity requirement of Rule 23(a). As the Court of Appeals has explained, “[n]o minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.” Stewart v. Abraham,
b. Commonality
Rule 23(a) also requires that “there are questions of law or fact common to the class.” Id. Because where, as here, “an action is to proceed under Rule 23(b)(3), the commonality requirement is subsumed by [Rule 23(b)(3)’s] predominance requirement,” Dan-vers Motor Co., Inc. v. Ford Motor Co.,
c. Typicality
Defendants direct the majority of their arguments opposing Plaintiffs motion for class certification for Rule 23(a)’s typicality prong. To address the question of typicality, the Court assesses
whether the named [plaintiffs] claims are typical, in common-sense terms, of the class, thus suggesting that the incentives of the plaintiff ] are aligned with those of the class. Factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory.
Beck,
The Court finds that Plaintiffs claim is factually and legally typical of those of the 227 class members, and is not persuaded by Defendants’ argument that the circumstances giving rise to Plaintiffs claim make him unsuitable to represent the class. Plaintiffs claim is factually typical of the class members’ claims, in that Plaintiff, like the class
Defendants’ arguments to the contrary are unavailing. Defendants first argue that because Plaintiff received a prior communication from a different debt collector about the debt in question,
Defendants further argue that Plaintiffs claim is atypical of the class members’ because while Plaintiff meets the FDCPA’s statutory definition of “consumer,” any commercial entities among the proposed class would not. See 15 U.S.C. § 1692a(3) (“The term ‘consumer’ means any natural person obligated or allegedly obligated to pay any debt”). Defendants’ argument is without merit. First, even if there were any commercial entities among the proposed class, this would not render Plaintiffs claims atypical of the class members’, but would simply render such commercial recipients of Defendants’ debt collection letters ineligible for class membership.
The Court therefore finds that Plaintiffs claims are typical of the class, in accordance with Fed.R.Civ.P. 23(a)(3).
d. Adequacy of Representation
The final Rule 23(a) consideration is whether “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). With regard to Rule 23(a)’s adequacy prong, the Court of Appeals has explained that the Court’s task is to address whether “the putative named plaintiff has the ability and the incentive to represent the claims of the class vigorously, that he or she has obtained adequate counsel, and that there is no conflict between the individual’s claims and those asserted on behalf of the class.” Hassine,
Both criteria are satisfied in this case. As is evidenced by the Certification submitted by Plaintiffs attorney, Donald M. Doherty, Jr., Esq., and by the conduct of this litigation thus far, Plaintiffs counsel has sufficient qualifications and experience to liti
Moreover, based on the similarity between the circumstances surrounding Plaintiffs and the class members’ claims, discussed swpra, and Defendants’ concession that Plaintiff is adequately suited to protect the class’s interests, (Defs.’ Opp’n Br. at 15), the Court concludes that Plaintiff has the ability and incentive to represent the class’s claims. Hassine,
The Court accordingly finds that “the representative part[y] will fairly and adequately protect the interests of the class,” and that Rule 23(a)’s final criterion is satisfied in this case. Fed.R.Civ.P. 23(a)(4).
3. Federal Rule of Civil Procedure 23(b)(3)
In addition to the requirements of Rule 23(a), a party seeking class certification must demonstrate that certification is appropriate under one of the subsections of Rule 23(b). Chiang,
the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
Fed.R.Civ.P. 23(b)(3).
The Court finds that Rule 23(b)(3)’s predominance and superiority requirements are easily satisfied here. The predominance requirement “tests whether the class is sufficiently cohesive to warrant adjudication by representation,” requiring that “issues common to the class ... predominate over individual issues.” Danvers,
In this case, the claims of the members of the proposed class share an essential common question of law that predominates over all legal issues in this case. All of the class members received a debt collection letter from Defendants within the FDCPA’s statute of limitations in which Defendants advised the recipient of his or her right to dispute the debt within thirty days, but imposed a response date more than two weeks short of the thirty-day validation period. (Doherty Cert. H 4 and Ex. 1.) Whether the provision of section 1692g notice in these nearly identical letters was “overshadowed,” Swanson,
The Court likewise finds that the proposed class meets Rule 23(b)(3)’s superiority requirement.
The superiority inquiry requires us to balance, in terms of fairness and efficiency, the merits of a class action against those of alternative available methods of adjudication. There are four nonexclusive factors that we should consider under the provisions of Rule 23(b)(3): (1) the interest of individual members of the class in controlling the prosecution of the action, (2) the extent of litigation commenced elsewhere by class members, (3) the desirability of concentrating claims in a given forum, and (4) the management difficulties likely to be encountered in pursuing the class action.
Danvers,
All four factors weigh in favor of class certification here. With regard to the interest of individual class members in prosecuting this action and the extent of litigation commenced elsewhere, Plaintiff claims, and Defendants do not dispute, that no potential members of the class have filed suit on any claims arising out of Defendants’ debt collection letters. Given that the statute of limitations on FDCPA claims is one year, 15 U.S.C. § 1692k(d), and the proposed class at issue here includes recipients of letters Defendants mailed between September 20, 2005 and September 20, 2006, this would appear to be the only lawsuit to have arisen out of Defendants’ letters. As this is the only litigation pertaining to the letters in question, the class members have, to date, exhibited no interest in controlling the prosecution of this action in this forum or elsewhere; no class member’s interests in independently prosecuting his or her claim would be frustrated by certifying the class at issue here.
Moreover, “the desirability of concentrating claims in a given forum” weighs in favor of permitting this lawsuit to proceed as a class action. Danvers,
The Court accordingly finds that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy,” and will grant Plaintiffs motion for class certification. Fed. R.Civ.P. 23(b)(3). The class certified herein shall be defined as:
All those 227 natural persons who received collection correspondence from the Defendants Rodman Cook and the Thomas & Cook law firm dated between September 20, 2005 through to September 20, 2006 seeking to collect upon a consumer debt and which included a thirty-day time frame to validate the debt yet sought a response within a time less than the thirty days.
Additionally, pursuant to Rule 23(g), Fed. R.Civ.P., the Court shall appoint Donald M. Doherty, Jr., Esq. of the law firm Friedman Doherty, LLC, as class counsel.
Plaintiff has moved for summary judgment on behalf of himself and the class as to the issues of liability and damages. For the reasons explained below, the Court will grant Plaintiffs motion.
1. Standard of Review
Summary judgment is appropriate when the materials of record “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(e). A dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” See Anderson v. Liberty Lobby, Inc.,
2. Analysis
The Court will grant Plaintiffs motion for summary judgment as to the issues of liability and damages. In its February 7, 2008 Opinion and Order, the Court found that Defendants’ debt collection letter to Plaintiff—which, it is undisputed, was identical in all relevant respects to the letters received by the 227 additional class members, (Doherty Cert. 114)—failed to comply with Graziano’s requirement that the initial communications of debt collectors “explicate [the] debtor’s [section 1692g] rights ... effectively.” Graziano,
Plaintiff is entitled to judgment as a matter of law on the issue of liability. Because Plaintiff did not file a cross-motion for summary judgment, however, the Court will afford Defendants an opportunity to present relevant evidence in opposition to the granting of summary judgment against them.
(Docket Item 20 at 15) (internal quotations and citations omitted).
The only evidence Defendants have presented as to the issue of liability is evidence suggesting that Plaintiff, as well as certain other class members, were contacted by different debt collectors prior to receiving Defendants’ debt collection letters. (Cook Decl. Ex. D; Minuchi Decl. ITU 2-11.) Based on the Court’s holding, swpra, that “[t]he requirement of providing valid disclosures under § 1692g applies to each debt collector,” including subsequent debt collectors, Francis,
Finally, the Court will grant Plaintiffs motion for summary judgment on the matter of damages. The damages section of the FDCPA provides:
Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—
(1) any actual damage sustained by such person as a result of such failure;
(2) (A) in the case of any action by an individual, such additional damages as the*203 court may allow, but not exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector ...
15 U.S.C. § 1692k.
As the named plaintiff in this case, Mr. Stair, has neither alleged nor proven actual damages, his maximum recovery under the statute is $1,000. Additionally, as the parties have stipulated that Defendant Cook’s net worth is $275,000, (Doherty Cert. Ex. 2), the class’s damages are limited to $2,750, which is “1 per centum of the net worth of the debt collector.” 15 U.S.C. § 1692k(a)(2)(B). Finding no material dispute of fact as to the damages owed by Defendants in this ease, the Court will grant Plaintiffs motion for summary judgment on damages, awarding Plaintiff Stair $1,000 and $2,750 to be distributed among the class members.
D. Attorney’s Fees
Plaintiff has moved for an award of reasonable attorney’s fees for his counsel’s efforts in litigating this matter. Under the FDCPA, a “debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person” for the “costs of the action, together with a reasonable attorney’s fee as determined by the court.” 15 U.S.C. § 1692k(a)(3).
The Court finds that Plaintiffs application for attorney’s fees is premature. In this class action, the award of attorney’s fees is governed by Rule 23(h), Fed.R.Civ.P., which requires, among other things, that notice of the motion of class counsel for attorney’s fees and nontaxable costs must be “directed to class members in a reasonable manner.” Fed.R.Civ.P. 23(h)(1). The rule does not necessarily require such motion to be served on class members, but rather that it be “directed” to them in a reasonable manner.
In this statutory fee shifting case, the fees of Class Counsel will be paid by Defendants, and not from the common fund generated by counsel’s efforts. Accordingly, it would not be reasonable to require that Class Counsel make service of the motion for attorney’s fees upon all class members, since the amount of fees will not diminish their recovery from the class fund. Nonetheless, the class is entitled to notification of the fees and costs that Class Counsel reasonably intends to seek for all compensable services, perhaps expressed as an upper limit of such anticipated request. Such notice directed to the class under Rule 23(h)(1) is a prerequisite for approval of Class Counsel’s fees. Such notice to the class should be included in the Rule 23(c)(2)(B) notice, discussed in Part III, below.
The appropriate time for refiling the attorney’s fee motion will occur when the contours of the claim administration are known, and Class Counsel may reapply for attorney’s fees and costs within ten (10) days after approval of a plan for submitting claims and distribution of the class fund.
Rule 23(c)(2)(B) requires that the members of a Rule 23(b)(3) class, as in this case, be given notice of the nature of the action, the definition of the class certified, the opportunity to opt out of the class and mechanism for doing so, and other important information that is “clearly and concisely state[d]” in “plain, easily understood language.” Fed. R.Civ.P. 23(c)(2)(B).
It also appears that a second component of notice to the class is necessary at this time, namely the fact that summary judgment has been entered against the Defendants but also that the expected recovery for the class is limited by law to $2,750 to be divided among the 227 class members (or such number of members who do not opt out and who submit claims), for a pro rata distribution that may be as small as approximately $12.11 each. Such notice regarding the conduct of the action is permitted in the Court’s discretion under Rule 23(d)(1)(B), Fed.R.Civ.P., and will be required here within the forthcoming Rule 23(c)(2)(B) notice.
Accordingly, the Court will require that counsel confer regarding the approval form of class notice, and that Class Counsel, within ten (10) days of entry of the accompanying Order, submit an appropriate motion for approval of class notification for the Court’s approval. Counsel shall also propose a plan for the administration of the distribution of the settlement fund to class members.
IV. CONCLUSION
For the reasons explained above, Plaintiffs motion for class certification, as well as Plaintiffs motion for summary judgment as to the issues of liability and damages, will be granted. Plaintiffs motion for attorney’s fees will be denied without prejudice to renewal after the Court receives and approves a proposed plan for filing claims and distribution of the class fund. The accompanying Order will be entered.
Notes
. Because Plaintiff Stair is paralyzed and frequently hospitalized, his nephew, Dean Smith, holds power of attorney for Mr. Stair to manage his “financial and related affairs.” (Smith Cert. 11111-4.)
. Defendants raise the argument that they were not the first debt collectors to communicate with Mr. Stair about the debt Mr. Stair owed UMH for the first time in opposing Plaintiff’s motion for summary judgment. As Defendants now claim, a company called Financial Recoveries first sent Plaintiff a debt collection letter (the "Financial Recoveries letter”), after which the matter was referred to Defendants, who subsequently mailed the collection letter at issue in this case. (Minu-chi Decl. HH 2-11.) No record of the letter purportedly mailed by Financial Recoveries exists, nor do Defendants indicate the date when this letter was allegedly mailed. {Id. at H 8.)
While the Court finds, infra, that the existence of the Financial Recoveries letter did not relieve Defendants of their obligation to comply with section 1692g, it also agrees with Plaintiff that because Defendants failed to disclose, first, the identity of Thomas Minuchi, an employee of Financial Recoveries whose Declaration they now proffer, and, second, the Financial Recoveries form letter upon which they now rely, drey are precluded from "us[ing] that information or witness to supply evidence on [the] motion” presently under consideration. Fed.R.Civ.P. 37(c) (1). As part of their preliminary discovery obligations, Defendants were required, "without awaiting a discovery request,” to provide Plaintiff with both “the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses,” and “a copy—or a description by category and location—of all documents ... that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.” Fed.R.Civ.P. 26(a)(1)(A). Rule 37(c)(1) provides "mandatory sanctions,” Fitz, Inc. v. Ralph Wilson Plastics Co.,
Defendants failed to include the evidence upon which they now seek to rely in their initial disclosures, and made no apparent effort to supplement their disclosures pursuant to Rule 26(e), Fed.R.Civ.P. Defendants have likewise proposed no substantial justification for their failure of disclosure. Hence, even if the Financial Recoveries letter and Minuchi Declaration were material—which, as the Court explains, infra, they are not—Defendants would not be permitted to rely on them in opposing the motion presently before the Court.
. See Note 2, supra.
. As the proposed class definition set forth, supra, makes clear, the class at issue in this matter would be limited to natural persons. (Docket Item 27.)
. For the same reasons, the Court finds that Plaintiffs counsel is appropriate class counsel under Fed.R.Civ.P. 23(g).
. See Note 1, supra.
. Class Counsel's renewed fee application shall also be required to provide evidence of the reasonableness of counsel's claimed hourly rate. In assessing the reasonableness of a claim for attorneys' fees, the Court employs a " 'lodestar' formula, which requires multiplying the number of hours reasonably expended by a reasonable hourly rate.” Maldonado v. Houstoun,
The reasonable hourly rate is determined hy reference to the marketplace. See Missouri v. Jenkins,491 U.S. 274 , 285,109 S.Ct. 2463 ,105 L.Ed.2d 229 (1989) ("We have consistently looked to the marketplace as our guide to what is 'reasonable'.”) The attorney’s customary billing rate is the proper starting point for calculating fees. Cunningham v. City of McKeesport,753 F.2d 262 , 268 (3d Cir.1985).
A.V. v. Burlington Tp. Bd. of Educ., No. 06-1534,
While Plaintiff's counsel has submitted an account of the time he spent litigating this matter at a rate of $325/hour, he does not appear to have submitted evidence necessary for this Court’s determination of whether his hourly rate in this case was reasonable—namely, evidence of his own customary billing rate and of the rates charged by attorneys of Mr. Doherty's training and experience in his practice area and geographic region. Id. Without such evidence, the Court cannot adequately determine the quantum
. Fed.R.Civ.P. 23(c)(2)(B) provides as follows:
For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an attorney if the member so desires;
(v) that the court will exclude from the class any member who requests exclusion;
(ii) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
Fed.R.Civ.P. 23(c)(2)(B).
. Class Counsel's reasonable costs of administration will be compensable by Defendants under 15 U.S.C. 1692k(a)(3), supra.