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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Never Assume Numerosity – Marshall v. Bonded Adjustment Co.

Posted in Certification

Andrew Marshall was an employee of the City of Spokane, Washington. After a minor work-related injury to his eye, he wound up in a billing dispute with the company that ran the emergency room he visited. So he did what many of us have felt the urge to do after diving into a morass of paperwork surrounding a minor medical claim: he filed a class-action lawsuit against the insurance company and the medical company, alleging violations of the Fair Debt Collection Practices Act. He sought to represent a class of employees of the City of Spokane. The case, for those following at home, is Marshall v. Bonded Adjustment Co., 2012 U.S. Dist. LEXIS 103829 (E.D. Wash. Jul. 25, 2012).

The litigation was not perfect. The plaintiff sought medical records of other potential class members (which, since they were covered by HIPAA, he was not entitled to see). And he almost missed his deadline for filing his motion for class certification.

Since, according to the court, what the plaintiff filed was a bare-bones motion, he could have been bounced simply for not meeting his burden under Rule 23. However, the court decided that it was still worthwhile to take a deep dive into the numerosity requirement.

However, while the Plaintiff briefly identifies the above referenced factors for determining impracticability, he does not offer any cogent arguments applying those factors to the instant case. 4 ECF No. 117 at 4. When pressed at oral argument as to whether there was anything other than the mere number of potential class members that would make their joinder impracticable, Plaintiff’s counsel identified nothing. Consequently, the Court will conduct its own analysis, based on the five factors identified above, as to whether the joinder of 25 potential plaintiffs would be impracticable.

Really, though, the court only needed to look at two of the factors involved in evaluating numerosity. Which ones?

Judicial Economy. The court here was unimpressed by the savings it might see from a class action.

The Court notes that all 25 proposed class members are employees of the City of Spokane and therefore should be easy to locate and able to participate meaningfully in any litigation if the members were joined. Also, Plaintiff asserts that none of the putative class members, aside from the named Plaintiff, are aware of the putative class action. Thus, it is fair to assume that none of them have filed or threatened to file, individual lawsuits. While mindful of the importance of preserving its resources, the court finds insufficient evidence that judicial economy would, in fact, be furthered by avoiding multiple suits in this case.

Geographic dispersion. Remember how this was a class of Spokane employees? The court did:

Plaintiff seeks a putative class of City of Spokane employees. These individuals live within commuting distance of Spokane, where the Court is based. The lack of geographic dispersion of the putative class members weighs heavily against a finding that joinder is impracticable.

Aside from their ignorance of the lawsuit, the court found that the potential class members were suffering from no hardship that would impede their ability to bring suit. Nor did the court find that the plaintiff’s request for declaratory relief (which he did not seek certification of) would meet the "prospective relief" factor.

And finally, the court also found that the class lacked commonality and typicality (because, among other things, he had avoided service of process several times in a related state court action).

So what’s the takeaway for this case? Don’t forget about the numerosity requirement. In smaller cases that appear based on unique circumstances (in other words, cases when one might first thing of attacking typicality), it may be just as useful to frame the defense in terms of numerosity. It still allows one to highlight the unique circumstances of the named plaintiff, but it may also persuade the court that the problem just isn’t large enough to make a federal case of.