Class not certified in suit against lawyer

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A federal judge denied a motion for class certification in a suit filed under the Fair Debt Collection Practices Act against an Indianapolis attorney. However, he did suggest the plaintiff file another motion for class certification for two separate groups.

U.S. District Judge William Lawrence denied Mark R. Rayl's motion for class certification Thursday because he didn't believe Rayl is an appropriate class representative for the entire proposed class. Rayl filed the suit in federal court against Merrill Scooter Moores in May 2009 alleging Moores' form of initial debt collection communication violated the FDCPA.

Moores filed more than 100 notices of claim in Marion County Small Claims Court in May 2008 alleging unpaid or delinquent dues for the Wildcat Run Homeowners' Association. The notices had a telephone number for Moores that went to a voicemail message from Moores about the unpaid dues. Rayl received a notice and believed the message was an "initial communication" by a debt collector as defined by the FDCPA and that Moores violated the act by failing to provide certain information that the statute requires provided within five days of the initial communication.

Rayl wanted the court to certify a class of people who were sued by Moores regarding the Wildcat Run debt between May 1, 2008 and May 1, 2009, in which "a telephone number leading to a pre-recorded voice mail message was referenced as a contact telephone number" for Moores on the small claims complaint.

The case, Mark R. Rayl, individually and on behalf of those similarly situated v. Merrill Moores, No. 1:09-CV-554, was filed in the U.S. District Court, Southern District of Indiana, Indianapolis Division.

Judge Lawrence had concerns regarding the typicality requirement and the related adequacy of representation requirement under Federal Rule of Civil Procedure 23.

"The problem is this: the proposed class includes all of those who were sued by means of a notice of claim containing a telephone number that led to the Defendant's pre-recorded voice mail message," he wrote. "Without prejudging the merits, it is not entirely clear to the Court how those members of the class who did not actually listen to the voice mail message (or at least learn of its contents) will be able to demonstrate that the voice mail message was an 'initial communication' as to them."

Judge Lawrence suggested the proposed class actually is made of two groups: people who heard the message and those who did not. As such, Rayl would only be an appropriate class representative for one of those two groups. The judge explained Rayl is free to file another motion to certify addressing the concerns of the court or the case can proceed as to Rayl individually.

Moores faces potential sanctions in this case for his failure to appear and his blatant ignoring of the case, opposing counsel, and the court's orders, according to a Jan. 22 order following a show cause hearing. Magistrate Judge Tim Baker laid out in the order how Moores, who is representing himself in the action, "has wholly abandoned any defense of this action." Moores was ordered to respond to Rayl's outstanding discovery by today. Magistrate Judge Baker suggested sanctions such as reimbursement of Rayl's reasonable fees and costs because of Moores' "insouciant conduct" even if Rayl doesn't prevail on his claim or even possible admonishment.


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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.