Jarzyna v. Home Props., L.P.

201 F.Supp.3d 650

Mariusz G. JARZYNA, Plaintiff,

v.HOME PROPERTIES, L.P., et al., Defendants.

CIVIL ACTION NO. 10-4191

United States District Court, E.D. Pennsylvania.

Signed August 18, 2016

Francis J. Farina, Davidson, NC, Jacob T. Thielen, Joseph A. O'Keefe, O'Keefe, Miller & Thielen, P.C., Fleetwood, PA, for Plaintiff.

Candidus K. Dougherty, Swartz Campbell LLC, Philadelphia, PA, Ronald S. Canter, The Law Offices of Ronald S. Canter LLC, Rockville, MD, for Defendants.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

Before the Court are Defendant Fair Collections and Outsourcing, Inc.'s Motion to Deposit Funds into Court and Enter Judgment in Favor of Plaintiff (ECF No. 288) and Motion to Strike Declaration of Francis J. Farina (ECF No. 293). For the reasons that follow, the Court will deny the motion to deposit funds and grant the motion to strike the declaration.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case arises out of a landlord-tenant relationship that deteriorated, causing the landlord, a residential management company, to refer certain amounts purportedly owed to it by its former tenant to a debt collection agency. The former tenant, Plaintiff Mariusz Jarzyna ("Plaintiff"), brought this action on behalf of himself and other similarly situated former tenants against the residential management company, Home Properties, L.P. ("Home"), and the debt collection agency, Fair Collections and Outsourcing, Inc. ("FCO"), alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. , as well as certain other state consumer protection laws.

As the Court has observed in the past, "[t]his case, despite the relative simplicity of its claims, has proceeded along an usually circuitous and contentious path." Jarzyna v. Home Properties, L.P. , 114 F.Supp.3d 243, 248 (E.D.Pa.2015). Now, six years after Plaintiff filed his initial Complaint, the Court has ruled on the parties' motions for summary judgment and subsequent motions for reconsideration.

The factual and procedural history has been set forth at length in other decisions issued in this case and need not be repeated here. See Jarzyna v. Home Properties, L.P. , No. 10–4191, 185 F.Supp.3d 612, 613–22, 2016 WL 2623688, at *1–7 (E.D.Pa. May 6, 2016) (describing recent procedural history); Jarzyna , 114 F.Supp.3d at 248–52 (setting forth the factual background and earlier procedural history). Instead, the Court describes only the most recent procedural history below.

After the Court's decision on summary judgment and the motions for reconsideration, the only liability issues that remain for trial are Plaintiff's FDCPA claim that certain of FCO's standard dunning letters lacked the requisite disclosures, in violation of 15 U.S.C. § 1692g(a), and Home's counterclaim for Plaintiff's alleged breach of the lease agreement. For the purposes of assessing damages, the only claims that have been decided in Plaintiff's favor are Plaintiff's FDCPA claims against FCO with respect to FCO's failure to identify as a debt collector when leaving voice messages on Plaintiff's cell phone, in violation of §§ 1692e(11) and 1692d(6), and FCO's attempts to collect a debt that Plaintiff did not owe, in violation of §§ 1692f(1), 1692e(2), and 1692e(10) (Count I).

The case has reached the class certification stage. Plaintiff filed a supplemental motion for class certification on April 22, 2016, ECF No. 287, which FCO has opposed, ECF No. 292. Plaintiff moves for certification of the following class:

All persons residing in Pennsylvania, New York, New Jersey, Massachusetts, Maryland, Maine, Florida, Illinois and Washington, D.C.[,] who, during the period January 1, 2008 through the date of the filing of Plaintiff's Third Amended Class Action Complaint on April 8, 2013 (Doc. No. 205) (the "Class Period"):

a) have been identified and/or readily identifiable by Home Properties, L.P. ("Home") to have been assessed Thirty Day Notice Fees by Home—and with the balance placed with FCO for collection, in violation of 15 U.S.C. §§ 1692f(1), 1692e(2), and 1692e(10) ; and

b) who have been subject of FCO's standard, common, and uniform policy not to identify themselves as a debt collector when leaving messages on cellular/personal phones in violation of 15 U.S.C. §§ 1692e(11) and 1692d(6).

Pl.'s Mot. Class Cert. at 1-2, ECF No. 287. Plaintiff explains that this class definition was shaped upon the Court's grant of partial summary judgment in favor of Plaintiff against Defendant FCO for violations of the FDCPA on two claims.

The Court scheduled a hearing on Plaintiff's class certification motion for October 17, 2016. ECF No. 296 ¶ 4.

In connection with the class certification proceedings, FCO filed two motions.

First, FCO filed a Motion to Deposit Funds into Court and Enter Judgment in Favor of Plaintiff, ECF No. 288, which Plaintiff opposed, ECF No. 290. Upon the Court's invitation, both Plaintiff and FCO submitted supplemental letter-briefs regarding the applicability of the Third Circuit's recent decision in Richardson v. Bledsoe , No. 15–2876, 829 F.3d 273, 2016 WL 3854216 (3d Cir. July 15, 2016), which addresses the "picking off" exception to the mootness of a prospective class representative's claims. See ECF Nos. 298, 299.

Second, FCO filed a Motion to Strike the Declaration of Frank Farina, Esquire. ECF No. 293. Mr. Farina is one of Plaintiff's attorneys and filed the declaration at issue in support of Plaintiff's motion for class certification. Plaintiff filed a brief in opposition to the motion to strike or, in the alternative, a cross-motion to substitute the Special Master's November 21, 2012, Final Report and Recommendation, ECF No. 190, as adopted by the Court, ECF No. 202. ECF No. 295. Defendant FCO, with the Court's leave, filed a response to Plaintiff's cross-motion. ECF No. 297.

Because the arguments raised in these two motions will affect the issues addressed during the class certification hearing, the Court advised the parties that it would rule on both motions in advance of the class certification hearing. Accordingly, the Court will now address each motion in turn.

II. DEFENDANT FCO'S MOTION TO DEPOSIT FUNDS INTO COURT AND ENTER JUDGMENT IN FAVOR OF PLAINTIFF

FCO moves for the Court's leave to deposit $1,001.00, plus the cost of $400.00 for filing fees, into the Court in an account payable to Plaintiff Jarzyna, pursuant to Federal Rule of Civil Procedure 67, upon entry of judgment in favor of Plaintiff. Def.'s Mot. Deposit Funds 1, ECF No. 288. FCO suggests that the Court should thereafter determine Plaintiff's reasonable attorneys' fees and costs, which FCO agrees (and has adequate insurance coverage) to pay. Id. FCO explains that the FDCPA limits an individual plaintiff's recovery to $1,000 in statutory damages and "the costs of the action, together with a reasonable attorney's fee as determined by the court." Id. (citing 15 U.S.C. § 1692k(a)(2)(A), (a)(3) ). Although the FDCPA also contemplates an award of actual damages, Plaintiff has not alleged actual damages here. Id. at 6. Thus, according to FCO, entry of judgment in favor of Plaintiff, combined with FCO's payment of the amounts outlined above, would provide Plaintiff with complete relief and his individual claim would be moot. Id. at 2-3.

FCO's motion is undoubtedly inspired by the question expressly left open by the Supreme Court's recent decision in Campbell – Ewald Co. v. Gomez , –––U.S. ––––, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016). As FCO notes, Campbell – Ewald held only that an unaccepted Rule 68 offer of a judgment to a plaintiff who seeks to represent a class does not moot the case, even if the offer of judgment would afford the plaintiff complete relief on his individual claim. Id. at 672. Specifically, the Supreme Court held, based on basic contract law principles, that an unaccepted offer does not create any obligation to pay, so the plaintiff "gain[s] no entitlement to the relief that the defendant offered." Id. at 679. But the Court expressly did not "decide whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court enters judgment for the plaintiff in that amount." Id. at 672 ; see also id. at 685 (Alito, J., dissenting) ("I am heartened that the Court appears to endorse the proposition that a plaintiff's claim is moot once he has ‘received full redress' from the defendant for the injuries he has asserted. Today's decision thus does not prevent a defendant who actually pays complete relief—either directly to the plaintiff or to a trusted intermediary—from seeking dismissal on mootness grounds." (internal citations omitted)). Thus, FCO argues that it should be permitted to bring the litigation of Plaintiff's individual claim to a close by the entry of judgment in his favor. Def.'s Mot. Deposit Funds 5.

Plaintiff calls Defendant FCO's motion "a blatant attempt to improperly short-circuit the class certification process." Pl.'s Opp'n 3, ECF No. 390. He does not, however, cite to any case law suggesting that this proposed course of action would be improper. Instead, Plaintiff attempts to revisit arguments that he has made multiple times now concerning the application of his security deposit to the notice fee, which contradicts the Court's previous holding that there is no dispute of material fact that Plaintiff's security deposit was applied toward back-due rent. Id. at 4 n.4.

Nonetheless, FCO's motion has at least three problems, any of which provides a basis for denying the motion.

First, FCO proposes an improper use of Rule 67. Rule 67 provides, in pertinent part, that

[i]f any part of the relief sought is a money judgment or the disposition of a sum of money or some other deliverable thing, a party—on notice to every other party and by leave of court—may deposit with the court all or part of the money or thing, whether or not that party claims any of it. The depositing party must deliver

...