United States District Court, D. Nebraska
MEMORANDUM AND ORDER
LYLE E. STROM, SENIOR JUDGE UNITED STATES DISTRICT COURT
This matter is before the Court on three motions filed by the parties. See Filing Nos. 48, 58, and 51. Defendants, Credit Management Services, Inc. (“CMS”), Michael Morledge, Jason Morledge, and Megan Bischoff (collectively “defendants”) move for summary judgment (Filing No. 48). Plaintiff, Kenneth Reynolds (“plaintiff” or “Reynolds”) has filed a cross motion for partial summary judgment (Filing No. 58), and a motion for class certification (Filing No. 51). The matters have been fully briefed by the parties. See Filing Nos. 49, 52, 55, 59, 61, 67, 69. After review of the motions, the parties’ briefs, and the applicable law, the Court finds as follows.
Plaintiff’s putative class action suit arises from defendants’ filing of certain wage-garnishment affidavits in attempt to collect on consumer debts. See Filing No. 5. In order to collect on the judgments, CMS and attorneys within the company’s legal department regularly execute certain affidavits required to obtain wage garnishments against the judgment debtor. (Filing 49 at 3-4). The affidavit in plaintiff’s case, signed by defendant attorney Megan Bischoff, stated in pertinent part, “I have good reason to and do believe that this sum is based upon a judgment that: . . . is not for the support of a person, and the judgment debtor is not the head of a family.” (Id.; Filing No. 5 at 2). These affidavits are patterned after the Nebraska Judicial Branch form (Filing No. 49 at 4, 9).
On July 8, 2014, CMS obtained a judgment in the amount of $979.06 plus fees, costs, and interest against plaintiff. (Id. at 3). Defendants subsequently filed the above mentioned affidavit representing to the state court a “good reasoned belief” that plaintiff was not the head of a family. See Id. at 10. However, it is undisputed that plaintiff is presently, and in fact was, at all relevant times, the head of his family entitled to the lower statutory garnishment percentage (Filing No. 49 at 2; Filing No. 59 at 13).
On December 1, 2014, plaintiff filed this putative class action alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq., and the Nebraska Consumer Protection Act (“NCPA”), Neb. Rev. Stat. §§ 59-1601 et seq. Plaintiff alleges defendants’ practice and policies, or lack thereof, resulted in his and other potential class members’ wages being wrongfully garnished at a rate of 25% instead of the lower 15% when the debtor is identified as the head of the family according to Nebraska law. See Filing No. 5; see also Neb. Rev. Stat. § 25-1558(1) (providing a garnishment rate at 25% of “disposable earnings” per week or 15% per week “if the individual is a head of a family.”). Both parties now move for summary judgment and plaintiff seeks class certification. See Filing Nos. 48, 58, 51.
I. Summary Judgment
Summary judgment is only proper when the Court determines the evidence “show[s] that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c); Semple v. Federal Exp. Corp., 566 F.3d 788, 791 (8th Cir. 2009) (quoting Fed.R.Civ.P. 56(c)). The evidence must be viewed in the light most favorable to the nonmoving party, giving the nonmoving party the benefit of all reasonable inferences. Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). At the summary judgment stage, it is not the function of the Court to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
II. Class Certification under Federal Rule 23
In order to certify a class, a plaintiff bears the burden of demonstrating that all the requirements of Fed.R.Civ.P. 23 have been met. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The United States Court of Appeals for the Eighth Circuit has ruled that district courts must conduct a “‘rigorous analysis’” of Rule 23's requirements. Powers v. Credit Management Services, Inc., 776 F.3d 567, 569 (8th Cir. 2015) (quoting Elizabeth M. v. Montenez, 458 F.3d 779, 786 (8th Cir. 2006)).
Under Rule 23, a plaintiff must establish the four prerequisites of Rule 23(a): numerosity; commonality; typicality; and adequate representation. Amchem, 521 U.S. at 613. Then the plaintiff must demonstrate the putative class falls into one of three types provided under Rule 23(b). Id. at 614. District courts have discretion in making decisions regarding class certification. See In re St. Jude Med. Inc., 425 F.3d 1116, 1119 (8th Cir. 2005).
III. Fair Debt Collection Practices Act
The Fair Debt Collection Practices Act (“FDCPA”) was enacted in order to curb “the use of abusive, deceptive, and unfair debt collection practices.” 15 U.S.C. § 1692. For a violation of the FDCPA, a plaintiff must prove: (1) the plaintiff has been the object of collection activity arising from a consumer debt; (2) the defendant is a debt collector as defined by the FDCPA; (3) the defendant has engaged in an act or ...