United States District Court, S.D. Georgia, Augusta Division
SARAH USRY and DANIEL DARNELL, on behalf of themselves and all others similarly situated, Plaintiffs,
EQUITYEXPERTS.ORG, LLC d/b/a EQUITY EXPERTS; MICHAEL NOVAK, JACQUELINE GALOFARO; and MARK BREDOW, Defendants.
RANDAL HALL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
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
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.)
Amendments to Complaint
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.,
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.
Amendments to Motion for Class Certification
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.)
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
filed their third motion to certify class on March 16, 2018.
(Doc. 79.) The ...