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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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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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