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Usry v. EquityExperts.Org, LLC

United States District Court, S.D. Georgia, Augusta Division

March 12, 2019

SARAH USRY and DANIEL DARNELL, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
EQUITYEXPERTS.ORG, LLC d/b/a EQUITY EXPERTS; MICHAEL NOVAK, JACQUELINE GALOFARO; and MARK BREDOW, Defendants.

          ORDER

          J. RANDAL HALL, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Before the Court are the following motions: (1) Plaintiffs' unopposed motion to amend the complaint (Doc. 82) pursuant to Federal Rule of Civil Procedure 15, and (2) Plaintiffs' motion for class certification (Doc. 79) pursuant to Federal Rule of Civil Procedure 23. For the following reasons, Plaintiffs' motion to amend the complaint is GRANTED, and Plaintiffs' motion for class certification is DENIED WITHOUT PREJUDICE.

         I . BACKGROUND

         Plaintiff Sarah Usry ("Plaintiff Usry") filed the present class action against Defendant EquityExperts.org, LLC d/b/a Equity Experts ("Defendant Equity Experts") on November 20, 2015, alleging violations of federal and state consumer protection statutes. (Compl., Docs. 1-1, 1-4.) Plaintiff Usry originally filed the action in the Superior Court of Columbia County, Georgia. (Id.) Defendant Equity Experts removed the case to this Court. (Notice of Removal, Doc. 1.)

         A. Amendments to Complaint

         Pursuant to the scheduling order entered March 3, 2016, the Parties had until April 4, 2016, to file motions to amend pleadings or add parties. (Discovery Schedule, Doc. 17.) Despite several revised scheduling orders, the deadline to amend pleadings and add parties has not been extended. (See Revised Scheduling Orders, Docs. 21, 28, 40, 43, 52.) Even though the deadline to file an amended pleading expired, Plaintiff Usry moved for leave to file the first amended complaint on August 15, 2016. (Pl.'s Mot. for Leave to File Am. Compl., Doc. 30.) Primarily, the motion sought to add Daniel Darnell ("Plaintiff Darnell," and collectively with Plaintiff Usry, "Plaintiffs") as a party plaintiff and putative class representative. (Id. at 4-5.) United States Magistrate Judge Brian K. Epps granted Plaintiff Usry's unopposed first motion to amend on September 7, 2016 (Order, Doc. 34), and Plaintiffs filed their first amended complaint as a stand-alone docket entry the next day. (First Am. Compl., Doc. 35.)

         On April 5, 2018, Plaintiffs filed the present motion to amend. (Mot. to Amend Compl. to Add Defs., Doc. 82.) This time, Plaintiffs propose the addition of three defendants, Michael Novak, Jacqueline Galofaro, and Mark Bredow ("Individual Defendants'7). (Proposed Second Am. Compl., Doc. 82-3, ¶¶ 7-8, 34.) The motion is unopposed.[1]

         B. Amendments to Motion for Class Certification

         Plaintiffs filed their first motion for class certification on June 14, 2017. (Doc. 61.) On January 11, 2018, the Court ordered Plaintiffs to refile their motion to certify class without additional substantive changes. (Order, Doc. 76.) In compliance with the Court's Order, Plaintiffs filed their second motion to certify class the following day. (Doc. 77.)

         In their second motion to certify class, Plaintiffs asked the Court to certify the following general class:

All natural persons in Georgia to whom Equity Experts sent collection letters asserting claims for delinquent assessments, interest, and fees in violation of the FDCPA and the Georgia usury statute while residing in the State of Georgia (hereinafter the "General Class Members").

(Id. at 17.) Plaintiffs also proposed class definitions for three putative subclasses:

a. All natural persons in Georgia to whom Equity Experts sent collection communications seeking to collect illegal interest or other sums not owed (hereinafter the "Illegal Interest Class Members"); and,
b. All natural persons in Georgia against whom Equity Experts has field a lien and/or lawsuit asserting claims for delinquent assessments, interest, and fees while residing in the State of Georgia and against whom the lawsuit or lien remains pending and unpaid (hereinafter the "Injunction Class Members"); and,
c. All natural persons in Georgia from whom Equity Experts received any payment arising from collection efforts of assessments by Equity Experts which included usurious interest charged in violation of the Georgia usury statutes and illegal fees charged in violation of the FDCPA while residing in the State of Georgia (hereinafter the "Unjust Enrichment Class Members").

(Id. at 1-2.) Before the Court reached Rule 23's explicit requirements, it denied Plaintiffs' motion on the implied requirement of ascertainability. (February 16, 2018 Order, Doc. 78.) Specifically, the Court determined that Plaintiffs' general class and two of the subclasses were "fail-safe" classes. (Id. at 6-8.) The Court denied the motion to certify class without prejudice and permitted Plaintiffs the opportunity to correct the class definitions.

         Plaintiffs filed their third motion to certify class on March 16, 2018. (Doc. 79.) The ...


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