Hackler v. Tolteca Enterprises, Inc. D/b/a Phoenix Recovery Group

Western District of Texas, txwd-5:2018-cv-00911

MOTION to Approve Form of Notice to the Class Members, to Approve Method of Providing Notice to the Class, and to Shift Cost of Notice to Defendant by Sadie Hackler.

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SADIE HACKLER, on behalf of herself § and all others similarly situated, § § Plaintiff, § § V. § Case No. 5:18-CV-00911-XR § TOLTECA ENTERPRISES, INC. d/b/a § PHOENIX RECOVERY GROUP, § § Defendant. § PLAINTIFF'S MOTION TO: 1) Approve form of notice to the class members 2) Approve method of providing notice to the class, and 3) Shift cost of notice to Defendant. Plaintiff, Sadie Hackler files this Motion to Approve the form of notice to be given the class, approve the method of dissemination of the notice, and to shift the cost of sending the notice to Defendant. In support thereof, Plaintiff shows: 1. On September 9, 2019 the Court granted Plaintiff's motion for class certification in this FDCPA case. (Doc. Nos. 30, 36). 2. The certification was of a Rule 23(b)(3) class. Fed. R. Civ. P. 23(b)(3). 3. Federal Rule 23(c)(2)(B) provides that for any class certified under 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 may be by one or more of the following: United States mail, electronic means, or other appropriate means. The notice must clearly and concisely state in plain, easily understood language: MOTION Page 1|5 (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; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). 4. Attached hereto as Exhibit 1 is a form of notice that Plaintiff believes complies with the Rule. Plaintiff requests that the Court approve the form of notice or approve the notice subject to any changes that the Court suggests. 5. As to the method of providing notice to class members, Plaintiff suggest that the notice should be sent by regular, first class mail to the last know address of the class members. That is the method by which Defendant sends its collection letters, and Defendant has the last known addresses of the class members and a pre-existing association with a mass-mailer that can mail the notices, update addresses through the United States Post Office and resend notices that are returned after the first mailing. 1 6. Defendant should bear the cost of sending the notices to the class members. The usual rule is that Plaintiff must bear the initial costs of notice to the class. Hunt v. Imperial Merch. Servs., Inc., 560 F.3d 1137, 1143 (9th Cir. 2009). However, many district courts have placed notice costs on the class action defendant once the 1 It is still not known by Class Counsel how many members are in the class and who will be sent notice. For the longest time, Defendant refused to admit that there were more than 40 people in the class. See, Doc. No. 23, 27. In its response to the motion to certify the class, Defendant suddenly claimed that "it has been reported that some 10,000 form letters were sent [during the class period]". Decl. Chris Haines. Doc. No. 35. MOTION Page 2|5 defendant's liability has been established. Id, citing Macarz v. Transworld Sys., Inc., 201 F.R.D. 54, 58 (D. Conn. 2001) (agreeing with the plaintiff that "because liability has already been determined, defendant bears the cost of notice to the class"); Six (6) Mexican Workers v. Ariz. Citrus Growers, 641 F. Supp. 259, 264 (D. Ariz. 1986) (directing defendants to pay notice costs in part because "liability of the defendants will have already been established"); Catlett v. Missouri Highway and Transp. Comm'n, 589 F. Supp. 949, 952 (D. Mo. 1984) (shifting notice costs "because the liability of the [defendant] has been established"); Bissonette v. Enter. Leasing Companywest, No. 3:10-CV-00326-LRH- WGC, 2014 U.S. Dist. LEXIS 132634 At *5 (D. Nev. 2014), citing Sobel v. Hertz, 3:06-cv- 00545-LM-RAM (D. Nev.); Small v. BOKF, N.A., Civil Action No. 13-cv-01125-REB-MJW, 2014 U.S. Dist. LEXIS 164415 (D. Colo. 2014) (string citing cases where notice costs are shifted to Defendant where liability is determined or "within sight"). 7. Further the Hunt court stated "These district court decisions lead commentators to suggest a general principle that "interim litigation costs, including class notice costs, may be shifted to defendant after plaintiff's showing of some success on the merits, whether by preliminary injunction, partial summary judgment, or other procedure" citing 3 William B. Rubenstein, Alba Conte, and Herbert B. Newberg, Newberg on Class Actions § 8:6 (4th ed. 2007)." Hunt at 1143. 8. In this case, the Court granted Plaintiff's motion for partial summary judgment on December 11, 2019. (ECF nos. 38, 39). Therefore, Defendant's liability is established, and under the general principle and weight of authority, the costs of notice should be shifted to Defendant. MOTION Page 3|5 9. Plaintiff tenders herewith a proposed order that orders Defendant to prepare the notice list and make some certifications or representations to the Court that the notice list is complete and accurate. The proposed order provides dates by which the notice list must be sent to a bulk mailer, printed and sent. The order also requires the Defendant to make some certifications or representations to the Court that the class notice has been disseminated per the Court's order. Request for Relief Plaintiff requests this Court approve the form of the notice as submitted herein or as revised by the Court, order that it be mailed by Defendant or its vendor, order that Defendant or Defendant's vendor certify to the Court that the class was notified by first class mail, and order that the costs of printing and mailing the notice be paid by Defendant. Plaintiff also seeks general relief for the class. MOTION Page 4|5 Respectfully submitted, BINGHAM & LEA, P.C. 319 Maverick Street San Antonio, Texas 78212 (210) 224-1819 Telephone (210) 224-0141 Facsimile ben@binghamandlea.com By: /s/ Benjamin R. Bingham BENJAMIN R. BINGHAM State Bar No. 02322350 LAW OFFICE OF BILL CLANTON, P.C. 926 Chulie Dr. San Antonio, Texas 78216 210 226 0800 210 338 8660 fax bill@clantonlawoffice.com By: /s/ William M. Clanton WILLIAM M. CLANTON State Bar No. 24049436 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I certify by my signature below that on December 20, 2019, a true and correct copy of the above and foregoing was served through the Court's Electronic Case Noticing System on all counsel of record. /s/ Benjamin R. Bingham BENJAMIN R. BINGHAM MOTION Page 5|5