Wright v. Linebarger Googan Blair & Sampson, LLP, No. 2:2010cv02304 - Document 145 (W.D. Tenn. 2012)
Court Description: ORDER granting 103 Motion to Certify Class. Signed by Judge Samuel H. Mays, Jr on 09/30/2012.
Download PDF
<![CDATA[
Wright v. Linebarger Googan Blair & Sampson, LLP Doc. 145 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION BRENDA J. WRIGHT YOUNGBLOOD, on behalf of herself and all similarly situated persons and entities, Plaintiff, v. LINEBARGER GOOGAN BLAIR & SAMPSON, LLP, a Texas limited liability partnership, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 10-2304 ORDER GRANTING CLASS CERTIFICATION Before the Court is Plaintiff Brenda J. Wright Youngblood’s (“Youngblood”) November 10, 2011 Motion for Class Certification. (Mot., ECF No. 103.) Defendant Linebarger Googan Blair & Sampson, LLP (“Linebarger”) responded on November 23, 2011, and Youngblood replied on December 12, 2011. Reply, ECF No. 112.) (Resp., ECF No. 106; For the following reasons, Youngblood’s Motion is GRANTED. I. Background Linebarger is an unincorporated legal partnership organized under the Linebarger laws of Texas. specializes in (Am. Compl. collecting ¶ 8, delinquent ECF No. 5.) personal and Dockets.Justia.com property taxes for its clients. (Id. ¶ 9.) City hired of Memphis delinquent real (“Memphis”) property taxes from In March 2004, the Linebarger Memphis to property collect owners. (Id. ¶ 10.) Youngblood contends that, since Linebarger entered into its contract with Memphis, Linebarger has received $19,148,452.91. (Linebarger’s Ledger, ECF No. 103-5.) is the source of this dispute. provides that attorneys who How Linebarger was paid Tenn. Code Ann. § 67-5-2404 pursue delinquent taxes may not receive compensation in excess of 10% of all delinquent land taxes collected. Tenn. Code Ann. § 67-5-2410(b) provides that a 10% penalty is imposed on parties who are sued for delinquent taxes and that the penalty “shall be devoted to the expense of prosecuting these suits and shall be allowed to the attorney filing the suits as compensation for the attorney’s services.” Youngblood contends that the two statutes, taken together, cap the permissible attorneys’ fee at 10%, but that Linebarger has interpreted the statutes to entitle it to a cumulative 20% fee. (Am. Compl. ¶ 11.) In 2009, Youngblood, a resident at 4500 Sun Valley Drive, Memphis, Tennessee, received a Notice of Lawsuit and Delinquent Real Property Tax Statement (the “Notice”) for property located 2 at 4500 Sun Valley Drive, Memphis, Tennessee. 1 of Lawsuit, ECF No. 103-7.) (Id. ¶ 18; Notice The Notice provided, in relevant part: Our law firm has been retained to collect delinquent taxes owed to the City of Memphis. A lawsuit has been filed to enforce the lien for the unpaid 2007 real property taxes and/or special assessments owed on the tax parcel described on the enclosed bill. You have been sued in the Chancery Court of Shelby, County, Tennessee . . . [and] the original complaint is located in the Chancery Court Clerk’s office. PAYMENT OF YOUR 2007 TAXES WILL STOP THIS LAWSUIT: Your property will be removed from this lawsuit as soon as full payment is received. DEFAULT JUDGMENT: . . . You are hereby notified to appear and defend suit or a default judgment. You do not need to appear in court as long as you pay your taxes prior to the hearing date. NOTICE OF TAX SALE: A judgment will be taken on June 5, 2009 on all unpaid accounts. After judgment, all properties owing delinquent 2007 taxes will be posted as available for tax sale on the internet . . . . DO NOT HESITATE: If you do not pay your taxes in full by February 28, 2009, additional interest and penalties will accrue. (Notice.) Although the Notice listed Lenora S. Wright (“Lenora Wright”) as the owner, she had passed away and Youngblood, her daughter, paid the $960.33 stated in the Notice. Dep. 70, ECF No. 103-6.) (Youngblood That amount included $539.87, the 1 The property was formerly owned by decedent Lenora S. Wright (“Lenora Wright”), but upon her death the property passed to her heirs, Brenda J. Wright Youngblood, Robert L. Wright, Jr., Christine L. Wright, Larry D. Wright and Jacquelyn Wright Johnson. (Mem. in Supp. of Substitution 2, ECF No. 30-1; Youngblood Dep. 8.) 3 actual amount of delinquent tax for tax year 2007, and $107.97, or 20% of the 2007 delinquent tax, for Linebarger. ¶¶ 21-22; After see also Youngblood removed. Pamela paid the Johnson stated Dep. 25, amount, ECF the (Am. Compl. No. tax 103-3.) lien was (Youngblood Dep. 70; Am. Compl. ¶ 23.) Youngblood alleges that her experience is not unique, and that “in virtually all instances . . . [Linebarger] included in the total delinquent amount an unlawful attorney’s fee.” (Am. Compl. ¶ 24.) She alleges that the proposed class members paid unlawful attorneys’ fees when they paid their delinquent taxes. (Id. ¶ 25.) Therefore, under Tennessee law, she alleges that Linebarger is obligated to repay its entire fee, not only the unlawful excess. (Id. ¶ 27.) Youngblood sues for conversion and unjust enrichment and seeks punitive damages. (Am. Compl.) Youngblood moves to certify the following proposed class (the “Attorney Fee Class”): Plaintiff and all similarly situated persons and entities who owned real property that was subject to a delinquent real property tax suit filed by Linebarger on behalf of the City of Memphis for the tax years 2003 to the present who paid an unlawful 10% “attorney fee” which was received by Defendant. (Mem. to Supp. Certification 4-5, ECF No. 103-1.) Youngblood contends owned that she is a class member because she the property that was subject to the threatened delinquent tax suit. (Id. 5.) Linebarger opposes certification. 4 On March 22, 2010, plaintiffs not party to this suit filed a class action against Memphis in the Chancery Court of Shelby County, Tennessee (the “Chancery Court Action.”). (See Chancery Court Court Compl., addresses ECF Memphis’ No. 106-1.) potential The Chancery liability arising Action from collection of allegedly unlawful fees at issue in this case. the On March 22, 2011, the Court denied Linebarger’s motion to stay this case pending the resolution of the Chancery Court Action. (Mar. 22 Order 13-20, ECF No. 37.) II. Jurisdiction and Choice of Law The Court has jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2). The proposed class is predominantly composed of residents of Memphis, Tennessee. Compl. ¶ 2.) Linebarger is an unincorporated (Am. partnership organized under the laws of Texas, with its principal place of business in Austin, Texas. (Id.) Youngblood has alleged that the class is entitled to at least $8.25 million in damages. (See Order 10, ECF No. 37.) Jurisdiction is proper. Linebarger contends that Youngblood lacks standing, but the Court has concluded that she does. 117.) (See Orders, ECF Nos. 37, Linebarger may not raise the issue again in opposition to a motion to certify. “If the named plaintiffs bringing a class action claim[] do not individually have standing to bring those claims, the case should be dismissed prior to the certification 5 process.” Ramirez v. STI Prepaid LLC, 644 F. Supp. 2d 496, 504 (D.N.J. 2009). Youngblood has standing because she property taxes and the contested fee. paid the delinquent Linebarger contends that, because Youngblood was not named in the Notice and was not the registered property (Resp. 20.) has owner, she could not have been (Youngblood Dep. 62, 69, ECF No. 103-6.) already decided establishes standing. that payment of the (Mar. 22 Order 52.) classic form of injury[].” injured. The Court attorneys’ fee “Monetary harm is a Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 298 (3d Cir. 2005). Linebarger contends that the Court lacks jurisdiction because Youngblood and the other proposed class members must first exhaust their judicial remedies under Tenn. Code Ann. § 67-1-901(a). (Resp. 5.) Section 67-1-901(a) provides that: In all cases where not otherwise provided in which an officer, charged by law with the collection of revenue due to the state, shall institute any proceeding or take any steps for the collection of the sum alleged . . . the person against whom the proceeding or step is taken shall, if that person conceives the same to be unjust or illegal . . . pay the revenue under protest. Tenn. Code Ann. § 67-1-901(a). provides that a party must Tenn. Code Ann. § 67-1-912(b)(2) bring suit against a county or municipality “within six (6) months after such payment under protest against the county to recover such taxes that [] were wrongfully collected.” “The law is clear in Tennessee that, at 6 a minimum, payment under protest is a condition precedent to the recovery of real property taxes paid to a county or a Penking Trust v. Sullivan Cnty., 196 B.R. 389, municipality.” 395 (Bankr. E.D. Tenn. 1996) (citing Hoover, Inc. v. Rutherford Cnty., 885 S.W.2d 67 (Tenn. App. 1994)). Linebarger argues that, these statutes, considered together, require parties challenging wrongful tax collections to bring suit (Resp. 5-6.) within six months of payment under protest. In Tennessee, a taxpayer seeking a tax refund from a county must “(1) pay the tax under protest and (2) file suit to recover the sum paid under protest within six months from making the payment.” COA-R3-CV, 2009 WL Moscheo v. Polk Cnty., No. E2008-019692868754, at *6 (Tenn. interpretation of Tenn. Ct. App. Sept. Code Ann. §§ 2, 2009). 2 Linebarger’s 901(a) and 67-1-912(b)(2) is not well taken. 67-1- The Court must apply the plain meanings to statutory terms when the language is clear and unambiguous. 900 (Tenn. 2007). payment of taxes. assures the state The Auto Credit v. Wimmer, 231 S.W.3d 896, statutes apply only to the unlawful Requiring a party to pay taxes under protest of notice that payment is in dispute. Linebarger is not a government entity; it is a law firm being 2 Linebarger also argues that Youngblood’s suit is barred by the Tax Injunction Act (“TIA”). (Resp. 6-7.) The Court has already concluded that the TIA does not bar suit. (Order 20-22, ECF No. 37.) 7 sued over its fees. taxes are There is no allegation that the property unlawful. injunction,” “recover[s] but the “That rather costs of is a not a lawsuit doing request over business. . for a tax how . Linebarger .” BellSouth Telecomms., Inc. v. Farris, 542 F.3d 499, 502 (6th Cir. 2008); see also In re Wal-Mart Stores, Inc., No. 08-8039, 2009 U.S. App. LEXIS 29535, at *4 (7th Cir. Nov. 12, 2009) (observing that “private parties do not have the power of Memphis hired Linebarger to collect back taxes. taxation[.]”). The dispute is about what it charged to collect those taxes, not payment of the taxes. To the extent Linebarger contends that §§ 67-1-901(a) and 67-1-912(b)(2) bar suit, Linebarger’s defense would apply to all proposed class That is a common “appropriately process.” members who did question answered not pay of law, through the taxes and class under so a protest. question certification In re Grand Theft Auto Video Game Consumer Litig., No. 06 MD 1739, 2006 U.S. Dist. LEXIS 68064, at *10 (S.D.N.Y. Oct. 25, 2006). In a diversity action, state substantive law governs. R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Erie A federal district court is required to apply the choice of law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). “Otherwise the accident of diversity of 8 citizenship would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side.” Where the underlying basis for CAFA jurisdiction is Id. diversity, the forum state’s choice of law rules apply. See Savedoff v. Access Group, Inc., 524 F.3d 754, 760 n.5, 762 (6th Cir. 2008) where (applying federal forum state’s jurisdiction 1332(d)(2)(A)). of law premised was choice on 28 provisions U.S.C. § Tennessee choice of law rules apply. Youngblood’s claims are for conversion, unjust enrichment, and punitive damages. tort. (See Mar. 22 Order.) Her claims sound in For tort claims, Tennessee follows the “most significant relationship” rule, which provides that “the law of the state where the injury occurred will be applied unless some other state has a more significant relationship to the litigation.” Hataway v. McKinley, 830 S.W.2d 53, 59 (Tenn. 1992). alleged injuries in this case occurred in Tennessee. The Youngblood and Linebarger assume that Tennessee substantive law applies. Neither alleges that another state relationship to the litigation. has a more significant The Court will apply Tennessee substantive law. III. Standard of Review Federal Rule of Civil procedure 23 governs class actions. To meet the requirements establish that: of Rule 23(a), a plaintiff must (1) the class is so numerous that joinder of 9 all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. satisfies the requirements of Rule If a plaintiff 23(a), she must also establish that the class should be certified under Rule 23(b). Youngblood moves for certification under Rule 23(b)(3), which requires a finding that “questions of law or fact common to members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” An action should not be certified “unless the resolution of the common issues ‘will advance the litigation.’” Alkire v. Irving, 330 F.3d 802, 821 (6th Cir. 2003) (quoting Sprague v. GMC, 133 determine F.3d 388, 397 “‘whether (6th [the] Cir. 1998)). proposed classes The are court must sufficiently cohesive to warrant adjudication by representation.’” Beattie v. CenturyTel, Inc., 511 F.3d 554, 564 (6th Cir. 2007) (quoting Amchem Prods. plaintiff v. must Windsor, show “that 521 U.S. there 591, are in 632 (1997)). fact sufficiently numerous parties, common questions of law or fact, etc.” Mart Stores, Inc. v. Dukes, 131 10 S. Ct. 2541, The 2551 Wal(2011) (emphasis in the original). Although a court “must resolve factual disputes necessary to class certification, [it] ‘should not turn the class certification proceedings rehearsal for the trial on the merits.’” into a dress Glazer v. Whirlpool Corp., 678 F.3d 409, 417 (6th Cir. 2012) (quoting Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012)). IV. Analysis Youngblood contends that certification is appropriate under Rule 23(a) and (b)(3). Linebarger contends that certification is not appropriate because Youngblood has never had an interest in the property. It contends that Youngblood is not and has never been the owner of the property, that she divested any interest in the property by giving it to her son, and that no delinquent property tax statement Wright, the original plaintiff. has named her or Darrell (Resp. 4.) A. Rule 23(a) 1. Numerosity Although there is “no strict numerical test” for numerosity, evidence that a class contains thousands of members readily establishes that joinder is impracticable. F.3d at 30(b)(6) 418. Pamela witness, Johnson concedes members of the class. that (“Johnson”), there could Linebarger’s be (Pamela Johnson Dep. 30.) 11 Glazer, 678 Rule thousands of That satisfies the numerosity requirement. See id. (“The evidence shows that Whirlpool shipped thousands of Duet washers to Ohio for retail sale. This is sufficient to support the certification of a class of all Ohio residents who purchased a Duet in Ohio.”); Daffin v. Ford Motor Co., 458 F.3d 459, 552 (6th Cir. 2006) (“Because we determine [] that Daffin is typical of thousands of 1999 and 2000 Villager owners who assert express warranty claims, the class satisfies the numerosity element.”); see also Smith v. Ohio Dep’t of Rehab. & Corr., No. 2:08-CV-15, 2012 U.S. Dist. LEXIS 58634, at *11-12 (S.D. Ohio April 26, 2012) (certifying a class of more than two thousand members); Siding & Insulation Co. v Beachwood Hair Clinic, Inc., 279 F.R.D. 442, 444 (N.D. Ohio 2012) (certifying a class consisting of thousands of individuals); Molina v. Roskam Baking Co., No. 1:09-cv-475, 2011 U.S. Dist. LEXIS 136460, at *6-7 (W.D. Mich. Nov. 29, 2011) (certifying a class of four thousand members). When the exact size of the class is unknown, but “general knowledge and common sense indicate that it is large, the numerosity requirement is Olden v. LaFarge Corp., 203 F.R.D. 254, 269 (E.D. satisfied.” Mich. 2001). Linebarger numerosity contends requirement that Youngblood because there are cannot satisfy adequate state the law remedies that she and the proposed class members have failed to exhaust. Linebarger argues that the class should be restricted 12 to “those individuals who appropriately exhausted their state law remedies” nonexistent.” and that, (Resp. so narrowed, 10.) The “the Court class has [would rejected be] that argument. Linebarger also contends that the proposed class includes members who have delinquent tax judgments against them in the Shelby County Chancery Court. (Id. 10.) Linebarger argues that the claims of those class members are barred by res judicata, because they should have challenged any unlawful fees before judgment. (Id. 12.) When a defense of res judicata is based on a prior state judgment, federal courts apply the law of the state in which the judgment was rendered. See Macy v. Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357, 367-68 (6th Cir. 2007) (applying Kentucky res judicata analysis to state court judgment). determine the effect of a Kentucky To assert a defense of res judicata based on a Tennessee judgment, a defendant must show that: “(1) a court of competent jurisdiction rendered the prior judgment, (2) the prior judgment was final and on the merits, (3) the same parties or their privies were involved in both proceedings, and (4) both proceedings involved the same cause of action.” v. Couch, 993 S.W.32d 53, 56 (Tenn. Ct. App. 1998). Lien There is no dispute that the Chancery Court had jurisdiction or that the judgments were rendered. Default judgments are judgments on the 13 merits for purposes of res judicata. Roberts v. Vaughn, No. W2008-01126-COA-$3-CV, 2009 Tenn. App. LEXIS 386, at *12 (Tenn. Ct. App. June 10, 2009). When there is no privity, however, there is no res judicata. Privity requires “‘an identity of interest, that mutual or successive interest to the same rights.’” is, a Notredan, LLC v. Old Rep. Exch. Facilitator Co., No. 11-2987-STA-tmp, 2012 U.S. Dist. LEXIS 85712, at *14 (W.D. Tenn. June 21, 2012) (quoting State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 180 (Tenn. Ct. identity App. of 2000)). interest Linebarger with argues Memphis that it had an because “Linebarger represented the City of Memphis in the lawsuits.” (Resp. 14.) Legal counsel are not in privity with a client because they do not have the same interest in the matter being litigated; they are merely counsel for a party. See Notredan, 2012 U.S. Dist. LEXIS 85712, at *15-16 (attorney not in privity with client for purposes of res judicata under Tennessee law); Balk v. Fererstein & Smith, LLP, No. 09CV249A, 2011 U.S. Dist. LEXIS 44203, at *14-15 (W.D.N.Y. Feb. 18, 2011) (law firm not in privity with client because client’s interest was in collecting an alleged debt, but law firm’s interest “was in providing legal representation for [its client].”); Reyes v. Kenosian & Miele, LLP, 619 F. Supp. 2d 796, 809 (N.D. Cal. 2008) (defendant law firm “shared certain goals with [its] client” but did not share 14 an identity of interest with it); Foster v. D.B.S. Collection Agency, 463 collection This F. agency conclusion Tennessee Supp. law and is 2d 783, 798 (S.D. Ohio attorney for agency not consistent that a with resolution the of general 2006) in privity). principle liability tortfeasor does not bar suit against another. (debt against of one SunTrust Bank v. Stoner, No. 07-0397, 2009 U.S. Dist. LEXIS 32493, at *8 (E.D. Tenn. April 24, 2009). Linebarger was not a party to the prior court proceedings or in privity with Memphis. Linebarger has independent potential liability. The claims of proposed class members who have delinquent tax judgments against them are not barred by res judicata. The class is sufficiently numerous that joinder would be impracticable. 2. Commonality Rule 23(a) requires “questions of law or fact common to the class.” Commonality is established “when there is at least one issue whose resolution will affect all or a significant number of the putative class members.” Powers v. Hamilton Cnty. Pub. Defenders Comm’n, 501 F.3d 592, 619 (6th Cir. 2007). identifies whether common Tenn. questions Code Ann. § of law and fact, 67-5-2404(a)(2)(A) Youngblood including: authorizes 1) the assessment of a 10% attorney fee in addition to the 10% fee permitted by Tenn. Code Ann. § 67-5-2410(a)(1)(a); 2) whether § 67-5-2404(a)(2)(A) limits Linebarger’s 15 compensation to 10% of delinquent received clearly a taxes 20% collected; fee; excessive and or 3) 4) whether whether unlawful so Linebarger Linebarger’s that, pursuant lawfully fees to were White v. McBridge, 9237 S.W.2d 796 (Tenn. 1996), Linebarger must disgorge all of the fees received. All of those issues are common to the class. Linebarger’s responses demonstrates that commonality is satisfied. It argues that plaintiffs were required to pay their delinquent taxes applicable to under protest. thousands of That potential is class a legal question members, although not, the Court has found, an argument with merit. legal questions affecting each proposed class member. 501 F.3d at 619. There are Powers, There are common questions of law and fact. 3. Typicality The third requirement of Rule 23(a) is that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” A claim is typical “‘if it arises from the same event . . . that gives rise to the claims of other class members, and if [the] claims are based on the same legal theory.’” Molina, 2011 U.S. Dist. LEXIS 136460, at *8-9 (quoting In re Am. Med. Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996)). Linebarger argues that Youngblood’s claims are atypical because she is “not currently and never [has alleged] to have 16 been the registered owner of the subject property located at 4500 Sun Valley Drive.” the Court, however, attorneys’ fees. (Def.’s Resp, 19-20.) is the payment of The issue before allegedly illegal In all material respects, Youngblood’s claim and the claims of the proposed class members “arise[] from the same event” and are based “on the same legal theory.” 2011 U.S. Dist. LEXIS 136460, at 8-9. Molina, Youngblood’s claim is typical 4. Adequacy A plaintiff must establish adequately represent the class. that she will fairly Fed. R. Civ. P. 23(a)(4). and “The adequacy inquiry . . . serves to uncover conflicts of interest between named parties and the class they seek to represent.” Windsor, 521 U.S. at 625. The crux of this inquiry is whether the plaintiff has the same interest and suffered the same injury Beattie, 511 F.3d at 562. as the class. The court must also determine whether “‘class counsel are qualified, experienced and generally Byrider, able 228 to F.3d representation conduct 709, 717 requirement the litigation.’” (6th Cir. overlaps 2000). with Stout “The the v. J.D. adequate typicality requirement because in the absence of typical claims, the class representative has no incentive to pursue the claims of other class members.” In re American Medical Sys., 75 F.3d 1069, 1083 (6th Cir. 1996). 17 Linebarger contends that representation would be inadequate because Youngblood was not aware of the Chancery Court Action. (Resp. 22.) That action has no bearing on this proceeding. (Mar. 22 Order 19-20.) Youngblood seeks to represent a class of thousands of delinquent property taxpayers who paid allegedly unlawful fees. She paid the allegedly compensation. and unlawful fees of a proposed class if prosecute the interests of the class.” (citation omitted). 2009 subsequent and now seeks A class representative shares the same interests injuries since herself and she will “vigorously Stout, 228 F.3d at 717 Youngblood has been involved in the case has assisted Complaints. in revising (Youngblood Dep. the 12, original 79.) She and has testified that she understands her duty as class representative. (Id. 11-12.) She has confirmed her commitment to represent the proposed class. (Id. 78-79.) Youngblood seeks the same goal as the proposed class members: the return of allegedly unlawful fees. Youngblood will adequately represent the class. Youngblood recommends Frank Watson, III (“Watson”), William F. Burns (“Ashby”) (“Burns”), as class William Ryan counsel. (“Ryan”), “The adequacy and of Bryce Ashby plaintiffs’ counsel . . . is presumed in the absence of specific proof to the contrary.” Dist. LEXIS Temp. Servs. v. Am. Int’l Group, Inc., 2012 U.S. 131201, at *9 (D.S.C. 18 Sept. 14, 2012) (internal quotation omitted); see also Rugambwa v. Betten Motor Sales, 200 F.R.D. 358, 365 (W.D. Mich. 2001) (“In most instances, adequacy is presumed in the absence of contrary evidence by the party opposing class certification.”). Watson and Burn have been appointed class counsel in the Western District of Tennessee and throughout the country. Ryan and Ashby have been involved in complex and collective action cases. Linebarger argues that Youngblood’s attorneys are inadequate because the original complaint contained a factual error. An isolated presumption of error is adequacy. insufficient Class counsel to are overcome the experienced, qualified, and generally able to conduct the litigation. B. Rule 23(b)(3) Youngblood must also establish that the proposed class is certifiable under Rule 23(b). She argues that the action is maintainable under Rule 23(b)(3), which requires that “questions of law or fact common to the class predominate over any questions affecting only individual members” and that the class action mechanism be a superior method to adjudicate the controversy. 1. Predominance “The predominance requirement is met question is at the heart of the litigation.” at 619. if [the] common Powers, 501 F.3d “To meet the predominance requirement, a plaintiff must 19 establish that issues subject to generalized proof and applicable to the class as a whole predominate over those issues that are subject to only individualized proof.” Randleman v. Fid. Nat’l Title Ins. Co., 646 F.3d 347, 352-53 (6th Cir. 2011); see also Ham v. Swift Transp. Co., 275 F.R.D 475, 483 (W.D. Tenn. 2011) (“[I]f the liability issue is common to the class, common questions are held to predominate over individual ones.”) (internal whether member quotations omitted). Linebarger’s would important have issue, fee is unique and the Here, the excessive. damages, Court central Although individualized questions routinely more is the the issue of See Randleman, “It is well established that the presence of regarding certification under Rule 23(b)(3).” Courts class bifurcate can is each liability damages at a later date if liability is imposed. 646 F.3d at 353. issue certify classes damages does not prevent Messner, 669 F.3d at 815. based on claims of unjust enrichment or conversion. See, e.g., City of Goodlettsville v. Priceline.com, F.R.D. Inc., 267 523, 533 (M.D. Tenn. 2010) (certifying claims for unjust enrichment and conversion); Ham, 275 F.R.D. at 487 (certifying claim of unjust enrichment); Pfaff v. Whole Foods Mkt. Group, No. 09-2954, 2010 U.S. Dist. LEXIS 104784, at *16-17 (N.D. Ohio Sept. 29, 2010) (certifying unjust enrichment and other claims). 20 The key issue in this matter is whether Linebarger violated Tennessee law by receiving a 20% fee. has Johnson has conceded that “the heart of this litigation is whether or not an attorney fee can be imposed pursuant to [Tenn. Code Ann.] § 675-2404(a)(2)(A).” Linebarger (Johnson Dep. 15.) argues that many potential class members are barred by res judicata and that state law bars class members from bringing suit without first paying taxes under protest. The Court has rejected those arguments. Whether Linebarger’s fees are unlawful is the predominant issue. 2. Superiority Youngblood contends that a class method of deciding the controversy. the proposed class members’ action is a superior The Court must consider: 1) interests in individually controlling the prosecution or defense of separate actions; 2) the extent and nature of any litigation concerning the controversy already begun by or against class members; 3) the desirability of concentrating the litigation of the claims in this forum; and 4) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3)(A-D). The proposed class members have little individually controlling separate actions. each class member is relatively small. interest in The sum at issue for Youngblood, for instance, contends that the unlawful fee she paid was $107.97. 21 (Mem. in Supp. particularly given that of Certification appropriate “class for members cases are not 26.) Class involving likely actions are small fees such to file individual actions because the cost of litigation would dwarf any potential recovery.” Dist. LEXIS Glazer, 678 F.3d at 421; accord Pfaff, 2010 U.S. 104784, at *18-19 (cases with small individual claims “a paradigmatic example of a case where the class action [is appropriate].”). The parties contest whether the second factor, the pendency of any related litigation, weighs for or against certification. Linebarger contends that the Chancery Court Action involves the same facts and issues of law. (Resp. 27.) It argues, and Youngblood does not dispute, that the Chancery Court Action was filed first. (Id.) The Court has already noted that the two actions are distinct. Chancery Court Action. Linebarger is not a defendant in the (Mar. 22 Order 19.) Even if the Chancery Court should conclude the fees are unlawful, Linebarger would not be liable because Linebarger is not a party. (Id. 19- 20); see also Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995) (res judicata requires the same parties in both suits). Johnson concedes that no proposed class members have sued Linebarger. (Johnson Dep. 29.) The Chancery Court Action against a non-party does not weigh against certification. 22 The third superiority and fourth requirement are elements readily of Rule satisfied. 23(b)(3)’s Concentrating litigation in this forum promotes judicial economy. legal issues will be addressed in one The common proceeding, and all proposed class members paid taxes and fees on real property in the Western District of Tennessee. Bledsoe v. Emery Worldwide Airlines, 258 F. Supp. 2d 780, 801 (S.D. Ohio 2003). no difficulties managing the class. The class There are members are readily identifiable and can be notified through mailings to the delinquent property addresses or through newspaper publication. See Kinder v. Northwestern Bank, 278 F.R.D. 176, 186 (W.D. Mich. 2011) (certification superior because class members were readily identifiable through bank records); see also Ham, 275 F.R.D. at 489 (certification superior because a court would be able to adjudicate “thousands” of suits in a “quicker and more efficient” manner); Beard v. Dominion Homes Fin. Servs., No. 060137, 2007 U.S. Dist. LEXIS 71469, at *26 (S.D. Ohio Sept. 26, 2007) (same). A class action is superior to other methods for fairly and efficiently adjudicating the controversy. C. Appointment of Class Representative Youngblood Class seeks representatives appointment must interests of the class. fairly as and class representative. adequately protect the Fed. R. Civ. P. 23(a)(4); see also id. Advisory Note to Subdivision (g) (“Rule 23(a)(4) will continue 23 to call for scrutiny of the proposed class representative.”). Youngblood has been diligent and active in pursuing the class claim, has worked closely with class counsel in initiating and prosecuting the (Youngblood’s action, Dep. and 78-79.) has helped Youngblood interest with other class members. counsel investigate. has conflict no of Youngblood is an appropriate class representative. D. Appointment of Class Counsel Under Rule 23(g), class counsel must be appointed when the court certifies a class. Fed. R. Civ. P. 23(g)(1)(A). In appointing counsel the court must consider: (1) the work counsel has done in identifying or investigating potential claims in the action; (2) counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action; (3) counsel’s knowledge of the applicable law; and (4) resources counsel will commit to representing the class. Id. Watson, Burns, Ryan, and Ashby represent Youngblood. has experience in collective actions. Watson has Each acted as defense and plaintiffs’ counsel in class action litigation in courts throughout the country. (See Watson Decl. ¶ 3.) Burns has been appointed class co-counsel in the Western District of Tennessee. (Id. ¶ 5-6.) Burns and Watson have prosecuted class actions against law firms for charging and collecting unlawful fees and expenses. (Am. Compl. ¶ 32.) 24 Ryan and Ashby have been counsel in “a variety of complex and collective action cases.” (Watson Decl. ¶ 7.) Counsel have investigated the claims at issue in this litigation. involvement resources in they putative class.” this case have The nature and extent of counsel’s to already date “reflects committed to the substantial representing the See Spurlock v. Fox, No. 3:09-cv-00756, 2012 U.S. Dist. LEXIS 59123, at *22 (M.D. Tenn. Apr. 27, 2012). They have handled the matter ably since its inception. V. Conclusion For the foregoing reasons, Youngblood’s Motion Is GRANTED. The Court CERTIFIES the following class: Plaintiff and all similarly situated persons and entities who responded to notice of a delinquent real property tax suit filed by Linebarger Googan Blair & Sampson, LLP on behalf of the City of Memphis for the tax years 2003 to the present and who paid a 20% fee that Linebarger Googan Blair & Sampson, LLP received. The Court appoints representative. Branda J. Wright Youngblood as the class After considering the factors in Fed. R. Civ. P. 23(g), the Court appoints Frank Watson, III, William Burns, William Ryan, and Bryce Ashby as class counsel. So ordered this 30th day of September, 2012. s/ Samuel H. Mays, Jr.__ ____ SAMUEL H. MAYS, JR UNITED STATES DISTRICT JUDGE 25
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
