The second prong of Rule 23(b)(3) requires Plaintiffs to show that “a class action is superior to other available methods fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). For this prong, the focus ‘is not on the convenience or burden of a class action suit per se, but on the relative advantages of a class action suit over whatever other forms of litigation might be realistically available to the plaintiffs.’” Gittens at 50-51.
Certifying the instant action as a class action is a tremendous advantage over other forms of litigation that are realistically available to Plaintiffs. As previously noted, Plaintiffs and the prospective class have all been damaged in an identical or nearly identical manner, share common interests, are owed the same fiduciary duty by the POA and any individual relief sought would mirror that of the class. The proposed classes total approximately 350 individuals and entities for the first and approximately 95 for the second, making individual suits an enormous undertaking that would surely require a colossal devotion of time, resources and efforts.
Fed. R. Civ. P. 23(b)(3) also sets forth four specific considerations, though non-exclusive, that are pertinent to satisfying the requirements of the rule. Id. at 51. There considerations are:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Plaintiffs satisfy each one of these considerations, as set forth below.
i. Rule 23(b)(3)(A) Consideration
Rule 23(b)(3)(A) considers “the class members’ interest in individually controlling the prosecution of defense of separate actions.”
The interest in class members individually controlling the prosecution or defense of separate actions is minimal or non-existent. The instant action is much better resolved as a class action with a single adjudication rather than a flood of individual law suits from the members of the proposed class, should they stay individual, subsequent to a potential favorable verdict obtained by Plaintiffs. Efficiency is inherent. Further, the total costs for individuals to prosecute their own action versus the recovery pool is far outweighed by a potential recovery in a successful class action. Lastly, none of the potential class members have pursued litigation against the Defendants based upon the fraud, RICO and conspiracy allegations presented by Plaintiffs. Although many of the proposed class members have been sued by the Defendant POA, those suits were typically foreclosure suits filed through the illegal actions of the Defendants. These class members can therefore bring forth these new claims as a group as opposed through costly, individual lawsuits.
ii. Rule 23(b)(3)(B) Consideration
Rule 23(b)(3)(B) considers “the extent and nature of any litigation concerning the
controversy already begun by or against class members.” In the instant Motion, Plaintiffs have pled that common issues of fact and law predominate over individualized issues and a single action in a single forum will certainly reduce time, effort and expense for class members, rendering the proposed class action economically advantageous.
As detailed in the Complaint, other proceedings have been initiated against Defendants in the Lake County, Florida judicial system and a single forum to address all class members’ common interests is desirable.
iii. Rule 23(b)(3)(C)
Rule 23(b)(3)(C) considers “the desirability or undesirability of concentrating the litigation of the claims in the particular forum.” The particular forum that the action was initiated in holds jurisdiction over all of the Defendants individually, the monetary amount has been satisfied, and federal questions of law exist.
iv. Rule 23(b)(3)(D)
Rule 23(b)(3)(D) considers “the likely difficulties in managing a class action.”
As more particularly described above in the paragraph titled “Class Representative and Class Counsel,” both Widerman Malek, P.L. and E. Timothy McCullough are more than qualified to manage and prosecute this case as a class action, as well as possess the financial capabilities and resources to properly fund this case.
C. IN THE ALTERNATIVE, THE PROPOSED CLASS ALSO FITS THE QUALIFICATIONS OF RULE 23(b)(1)(B)
As stated above, once all of the requirements of Rule 23(a) are met, then the party seeking class certification must satisfy one of the requirements of Rule 23(b). Gittens v. Sch. Bd., 2017 U.S. Dist. LEXIS 115987, *40-41 (M.D. Fla. July 7, 2017) [citing Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1188 (11th Cir. 2003)]. In the instant Motion, Plaintiffs alternatively seek certification under Rule 23(b)(1)(B).
A class action may be maintained under Rule 23(b)(1) if “prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.” Fed. R. Civ. P. 23(b)(1).
Rule 23(b)(1)(B) is applicable when the action threatens to impair or dispose of the rights and interests of absent class members, as in the case of lawsuits filed by shareholders or against trustees, or where there is a limited fund available to pay damages. Ortiz v. Fibreboard Corp., 527 U.S. 815, 833-36, 119 S. Ct. 2295 (1999). Rule 23(b)(1)(B) applies when there is a risk that separate actions would adversely affect absent class members or substantially impair their ability to protect their interests. Since the alleged illegal actions of the Defendants involve a POA whose power and control extends over all prospective class members, Rule 23(b)(1)(B) would be applicable. All prospective class members either currently own or at one-time owned property within the community, which is equally governed by the POA. By usurping control of the POA, passing various self-serving special assessments subsequent to passing improper and illegal amendments to the CC&R, and acting as a debt collector on behalf of the privately-owned Bella Collina Club, all prospective class members were subjected to the alleged illegal actions of the Defendants. These actions by the Defendants directly affected all prospective class members in the exact same manner. The resulting damages to the prospective class members may vary based upon the value of their particular lot, but the effect of passing improper and illegal amendments to the CC&R is common to all class members.
The Defendant POA was obligated under Florida law to treat all members of the prospective class alike, since they are all either current or former lot owners within Bella Collina. If this Court determines that the actions of the Defendants after the statutory turnover date of August 29, 2005 were improper, invalid or void ab initio, this determination would directly affect the rights of all the other lot owners, both past and present. These post-turnover actions include passing improper and illegal amendments to the CC&R, which is at the core of Plaintiffs’ Complaint. A favorable Order from this Court on this issue would affect all lot owners, past and present, whether they were Plaintiffs or not in this action. Any award of damages in the instant case should rightfully benefit all of the lot owners affected by the Defendants’ alleged illegal actions, and not just the named Plaintiffs. Rule 23(b)(1)(B) would protect the Defendants from a risk that adjudications with respect to individual members of the class would, as a practical matter, be dispositive of the interests of other members not parties to the adjudications.
For the foregoing reasons outlined in this Memorandum of Law in support of their Amended Motion for Class Certification, Plaintiffs respectfully request that this honorable Court grant their Amended Motion for Class Certification pursuant to the satisfaction of the perquisites set forth in Fed. R. Civ. P. 23(a) and 23(b)(1) & (3).
Dated: September 19, 2017 Respectfully submitted,
/s/ James Ippoliti .
James Ippoliti, Esq.
WIDERMAN MALEK P.L.
Co-Counsel for Plaintiffs
Florida Bar Number: 102674
506 Celebration Avenue
Celebration, FL 34747
Telephone: (407) 566-0001
Fax: (407) 601-5982
CERTIFICATE OF SERVICE
I certify that on September 19, 2017, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, of which will send a notice of electronic filing to all counsel of record.
/s/ James Ippoliti, Esq.
Co-Counsel for Plaintiffs