How many plaintiffs does it take to form a class action lawsuit? When it comes to satisfying Federal Rule of Civil Procedure 23(a)’s “numerosity” requirement, the traditional rule of thumb has been that 40 plaintiffs generally are enough, while 20 are too few. The range in the middle tends to be a closer call. Courts must undergo a pragmatic analysis to determine whether a putative class within that range is sufficiently numerous to proceed on the basis of a class action lawsuit. In a recent denial of class certification by a federal judge in New Jersey, a 26-member class pursuing claims under the Fair Debt Collection Practices Act failed to make the cut. As always with close calls, it is worthwhile to take note of how courts navigate gray areas in the law.
On November 25, United States District Court judge Michael Shipp denied class certification in Zangara v. Zager Fuchs, P.C., a putative class action wherein plaintiff Christine Zangara alleged violations of the FDCPA after Zager Fuchs filed a collection action seeking damages, including attorneys’ fees, on top of the debt owed by Zangara, without itemizing or explaining those damages. According to Zangara, Zager Fuchs filed similar actions against 26 putative class members.
In discerning whether the 26-member putative class was sufficiently numerous, Judge Shipp focused his analysis on two primary factors that are frequently used by courts when analyzing numerosity: judicial economy and the proposed class members’ ability and motivation to litigate as joined plaintiffs.
An analysis of judicial economy involves a focus on efficiency. Here, Zangara offered insufficient support for why it would be more efficient to proceed on a class basis as opposed to joining additional plaintiffs. Zangara’s support was limited to the proposition that a single lawsuit is more efficient than 26 separate lawsuits. While that argument certainly is logical, it assumes that the alternative to a class action is to file 26 separate lawsuits. As Judge Shipp reminded Zangara, however, the alternative before the Court was not whether the putative class should file separate lawsuits, but whether they could proceed as joint plaintiffs in the same lawsuit. Absent additional evidence, the Court found that Zangara failed to show how proceeding on a class basis would be more efficient than proceeding as joint plaintiffs.
With respect to the proposed class members’ ability and motivation to litigate as joined plaintiffs, Zangara’s arguments focused on the cost of litigating individual FDCPA claims. Statutory damages under the FDCPA are capped at $1,000, which, according to Zangara, would not be a worthwhile recovery for the putative class members to proceed individually. Zangara’s argument failed here too, as the Court pointed out that a plaintiff may also pursue actual damages under the FDCPA. Further, if successful, the FDCPA allows plaintiffs to recover their attorneys’ fees. Given these additional options for recovery, Zangara’s cost-based theory as to why the putative class members would be less likely to pursue their claims individually failed as well.