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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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