Petition for Writ of Certiorari — Alim Adburahman, et al., Petitioners v. Hyundai Motor America, Inc., et al.

Supreme Court briefOct 11, 2018

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No. _______

In The

Supreme Court of the United States

ALIM ADBURAHMAN, ET AL.,

Petitioners,

v.

HYUNDAI MOTOR AMERICA, INC., ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Elwood Earl Sanders, Jr., Esq.

Counsel of Record

8357 Curnow Drive

Mechanicsville, VA 23111

(804) 644-0477

(804) 644-3336 (Fax)

eesjresquire@netscape.net

James B. Feinman, Esq.

1003 Church Street

P. O. Box 697

Lynchburg, VA 24505

(434) 846-7603

(434) 846-0158 (Fax)

jb@jfeinman.com

Counsel for Petitioners

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i

QUESTIONS PRESENTED

1. Does a United States District Court, as

affirmed by the Court of Appeals, have the power to

exercise jurisdiction over and dismiss with prejudice

cases previously transferred to a Multidistrict

litigation, and not remanded, thereby interfering

with the adjudication of issues of national

application pending before the En Banc Court of

Appeals for the Ninth Circuit and causing

inconsistent rulings with the MDL Court?

2. When a District Court’s final order conflicts

with the Court’s written opinion, does the final order

control as held by this Court in Bell v. Thompson,

545 U.S. 794, 805, 125 S.Ct. 2825, 2832, 162 L.Ed.2d

693 (2005), or does the written opinion control as

allowed here by the Fourth Circuit?

3. Does a District Court’s inherent authority to

manage its docket allow it to remove the liberal

standard for amendment of a complaint allowed by

FRCP 15 (a)(2), as held here by the Fourth Circuit,

or, as held by the Second, Third, and Seventh

Circuit, is the District Court prohibited from

requiring plaintiffs to propose amendments before

the Court rules on a 12(b)(6) motion to dismiss on

pain of forfeiture of the right to amend?

ii

LIST OF ALL PARTIES TO THE PROCEEDING

IN THE COURT WHOSE JUDGMENT IS

SOUGHT TO BE REVIEWED

In United States Court of Appeals for the Fourth

Circuit Case No. 17-1587, Abdurahman, et al v.

Alexandria Hyundai, LLC, et al, there are 715

named plaintiffs and 29 named defendants.

The Plaintiffs are:

ALIM ADBURAHMAN; JOHN ABEL; LENA ABEL;

TAMARA ADAMS; BRANDON ADAMS; ASHRAS

AHMADI; WADHAH AL-HADDAD; CLAUDIA

ALLEN; PAUL ALLEN; JAMES ALLER; PEGGY

ALLER; JIANPING ALLOCCA; NICOLE

ALVARADO; GREGORY AMODEO; ROBERT

ANDERSON; SHERRY ANDERSON; DENNIS

ANDREW; LINDA G. ANDREWS; TINA ANTLEY;

PAULINE APISITPAISAN; MONICA ADAIR

ARGENT; GAURAV ARORA; RAMON ARROYO;

JAMES E. ASHLEY, JR.; BAKAL ASRAT;

ELIZABETH AVALAAN; CHERYL AYCOCK;

JOANN K. BACHNER; SHANON BAILESS;

CHRISTOPHER BAILEY; ANDY BAKER; BRIAN

BAKER; CAROL BAKER; GEORGE BAKER; SUSAN

BALLARD; DAVID BALMER; JEFF BARBER;

SCOTT BARNITT; LINDA BARR; EMMETT

BATTEN; SAMANTHA BEARD CURRY; BRIAN

BECKER; ROY BECKER; TONYA BECKER; JOHN

BECKNER, JR.; GINA BEEBE; KENNETH BELL;

PAMELA BELL; WHITNEY BENSON; RAYMOND J.

BERNERO; JOHN BESSERER; COLONEL

BILLINGSLY; DANA BISHOP; MICHAEL BIZIK;

iii

THOMAS BJERS; PETER BOMBIK; SHARON

BONNEAU; VIRGINIA BONNELL; ZESTANN

BOOKER; STEPHANIE BORN-NEWTON; JORDAN

BOSCH; SHIRLEY BOURNE; CARROL E. BOWEN;

JOSEPH BOWE; JANICE BOWLES; JEAN

BOWMAN; GRAY BOYCE; RPBERT BRABO, II;

CHERYL A. BRADFORD; MARIE BRADLEY;

OLIVIA BRADY; PHYLLIS BRANCH; NICOLE

BRANDON; JOHNNY W. BRANSON; ELLIOTT

ANDREW BRAY; EDMUND P. BREITLING; MARY

ANN BRENDEL; MICHELLE BRINDLE; RICHARD

BRINDLE; STEVE BRINGHURST; MELANIE

BRINK; EDWINA D. BRITT-CRABLE; DANA

BROADWAY; BARBARA BROWN; CHRISTINA L.

BROWN; DELORES BROWN; JAMES A. BROWN;

MATTHEW BROWN; MELANIE BROWN; MELISSA

BROWN; NICOLE BROWN; TONY BROWN;

PATRICK D. BRYAN; BRIANNE BRYANT;

THOMAS J. BULLOCK; BEVERLY W. BURKE;

JOYCE BURKE; RICHARD BURKE; MICHAEL

BURNAM; JOHN M. BURNETT; DARLENE

BURTON; GRACE M. BUTLER; SUZETTE BYRD;

JOSEPH CALABRETTA; JAMES CALLIS; CLARE

CAMPBELL; DOROTHY CAMPBELL; SETH

CAMPBELL; STEVEN CAMPBELL; WHITNEY

CAMPBELL; JOYCE CANTRELL; PAUL

CAPOZZOLI; PHYLLIS CARIMI; DALE F. CARLEO;

DENNIS CARLSON; MARK CARLTON; JAMES

CARNEAL; MICHAEL CARPENTER; JOSE

CARRASQUILLO; LINDA CARY; LEON CARY;

JEFFREY CASH; ILONA CASTRO; ROBERTO

CASTRO; JENNY CAVENDER; SHANNON CHAIN;

DILIP CHAKRABORTY; BAISHAKHY

CHAKRABORTY; ROGER CHELSEA; PETER

CHIAMARDAS; MICHAEL CHRISTOPHER;

iv

CHERENE CIMBALIST; BENJAMIN CLARK;

DANIEL K. CLARK; ELIZABETH CLARK; LARRY

CLEMENTS; ROBBIN CLEMENTS; KENDALL S.

CLOETER; JEREMY COBB; QUEEN B. COBBS;

GARY COCUZZI; JACK VICTOR COHEN;

JULIEANNA COLEMAN; CLINTON COLLINS;

AMON R. COLLINS, JR.; COLLIN CONNORS;

LOLANDA COOPER; SHARON COOPER; EILEEN

CORBIN; MICHAEL CORCORAN; KRISTEN

CORLEW; GARY COVERSTON; MARINA M. COX;

MOSES COX; TAMMY COX; JUSTIN CRONIN; JILL

CROWDER; BELINDA CUBBAGE; KELSEY

CUBBAGE; BESSIE CUFFEE; DAN CUOMO;

BRENDA CURTIS; ELVIS CYPRIANO; STEPHANIE

DAENZER; RICHARD L. DAMEWOOD; JON

DANCE; WILLIAM DANIEL; BROOKE DAVIES;

ANGELA DAVIS; JODY W. DAVIS; MATTHEW

DAVIS; JASON DAWSON; LAURIE DAWSON;

NELSON DAWSON; PAUL DAWSON; DESIREE

DEAN; ANTWAIN DEBERRY; BLAIR DEEM;

JENNIFER DEGRAFF; WILLIAM DEJOHN; JOE

DELGADO; TOM DELPOZZO; ANTHONY DEPAUL,

JR.; MICHAEL DESOUTO; STACY DOBSON;

DAVID DOBSON; SONYA DODSON; DAVID

DODSWORTH; MASON DOERMANN; YVONNE

DOVER; MINNIE DUNFORD; SANDRA K.

DUNTON; CHRIS C. DUTTON; DEBORAH

EDGEFIELD; KASEY EIKE; MIRIAH EISENMAN;

KATHY ELDRETH; TIMOTHY ELLIOTT; THOMAS

ENGLISH; KEITH EPPS; CINDY FABER; MASE

FABER; LUIS FALCON; JOHN FARMER;

BRANDON FARRELL; CHRIS D. FERGUSON;

FARANDA FERGUSON; WANDA FERGUSON;

JUNE FERRARA; MICHAEL FERTICH; JAMES

FICKLE; SHIRLEY FICKLE; JOSELYN FIELDS;

v

JODI FILIPEK; BEVERLY FINTCH; JENNIFER

FLEURET; SUSAN FOFI; RANDALL FOFI; LAURI

FOUTZ; TIMOTHY FOUTZ; KATHLEEN FOWLER;

THOMAS ROBERT FRANCO; GREG FRANK; JOHN

FRANKLIN; RONALD FRASIER; CATHLEEN

FREIBURGER; SHARON FRITH; MICHAEL

FRUITMAN; ALICIA FUSCO; ADLYN FUTRELL;

DOUGLAS FUTRELL; GUILLERMO GALARZA;

ANTHONY GALLARDY; IVAN GALLOWAY, JR.;

PETER GARTNER; CYNTHIA GASTLEY; SHEILA

GAY; JESSICA S. GEARHART; PAMELA

EDWARDS; JOHN WILLIAM GENTRY; MARK

GEORGE; JOHN GILBERT; DANIELLE KAY

GILLELAND; ANGELA GIONIS; JACQUELINE

GIOVANNELLI; ADAM G. GOLDSMITH; RICHARD

GOULD; CARRINE GRAHAM; CHERYL GRAHAM;

RAY GRAHAM; TAMMY B. GRAHAM; KAMERON

GRAY-HAROLD; ADAM GRAYBERG; AYNDRIA

GREEN; LISA D. GREEN; THOMAS GREICO;

ROBERT GRIMES; DAVID GROSS; JOE GROSS;

JESSICA GROVES; MEGAN GUILLAUME;

MICHAEL GUILLAUME; KELLI GUNTER;

LAUREN HAGY; RICHARD HALL; DOROTHY

HALPIN; PETE HALSETH; DAVID HAMMOND;

RICHARD HAMNER; STACY HARDY; JIM

HARNEY; TERESA R. HAROLD; AQUISI HARRIS;

ASHLEY HARRIS; CHAD HARRIS; ERVIN M.

HARRIS; MARY HARRIS; WILLIAM HARRIS;

BRIANNA HARRISON; PATRICIA HARRISON;

SHARON HARRISON; JESSE HATHAWAY;

CLAUDIA HAVEKOST; DAVID HAYNES; LESLIE

HEARN; KATHLEEN HEDRICK; ADAM HEIDEL;

TINY L. HENLEY; AMBER HERNANDEZ;

ZACHACY HERRERA; F. DALE HERRON;

TARENNE HERRON; JENNIFER HESTER;

vi

DEBBIE HETTERLY; AMANDA HILL; RONALD

HILL; CHRIS HILLAND; SHIRLEY B. HINES;

VERON HINES; TIMOTHY HINSON; HEATHER

HOBACK; BRITTANY HOBAN; DOMINGA HOBBS;

MARY HODGES; CHRISTOPHER HOEHN; JERRY

HOLLEY; KEISHA HOLLOWAY; BRENDA

HOLMES; JAMES HOLMES, III; TIMOTHY

HOLROYD; CHAD HOLSTON; CHARLES

HOOFNAGLE; CANDI HOOVER; CHARLIE

HOPKINS; MARCIA HORSTMAN; RICHARD

HOSKINS; CODY HOWARD; JESSICA HOWARD;

AUDREY HUBAND; MAX HUBAND; JOHN

HUBBARD; SUZANNE HUBBARD; DAVID HUBER;

TEDDY HUDDLESTON; AMY HUDSON; HUBERT

HUGHES; DENNY HUNCHES; LINNIE HUPE;

SHERRY HUTCHINS; DEBORAH G. JACKSON;

MITCHELL JACKSON; STANLEY JACKSON, SR.;

TRACY JACKSON; JASON JAFFEUX; BRUCE

JAMES; SALLY JAMES; SANDY JAMES; WALTER

JEFFRIES, SR.; RANDALL JNBAPTISTE; AUSTIN

JOHNSON; AUSTIN JOHNSON; EBORAH L.

JOHNSON; DAVID W. JOHNSON; BILLY JONES;

CHARLIE JONES; CHRISTINA JONES; JOHN K.

JONES; PEYTON P. JONES; WILBUR JONES;

PHILIP R. JUDSON; KENNETH JUNGERSON;

NANCY JUNGERSON; JENIFER JUSTICE; DAVID

KADAS; TINA KADAS; GREGORY KASHIN;

SRINIVAS KATEPALLI; WILLIAM L. KEE; VICTOR

G. KEHLER; SEAN KELLER; TERESA KELLER;

CHRISTOPHER KELLY; NONA KELLY;

VERONICA KELLY; PATRICK KEOUGH; MEE

RAN KIM; CARLTON KINARD; DORIS E. KING;

KARL KING; JOHN KIRBY; VERNON KIRBY;

DIANA KITE; EDWARD KIZER; PATSY KIZER;

JOHN KNIGHT; ANN KORKOLIS; FRED KRAUER,

vii

JR.; JEAN KUESTER; KATHRYN KUYKENDOLL;

DANIEL KWITCHEN; CHIN KWON; DENNIS

LAMB; JEANETTE LAMB; KAREN LAMB; JAMES

LAMBERT; STEPHANIE LAMM; KATHY

LAMPERT; ANDREW W. LANDER; CODY

LAUGHINGHOUSE; DAVID LEATHERMAN;

BLAIRE S. LEE; KENNETH LEE; JENNIFER

LEEMAN; RONALD LEEMAN; JERRY LERMAN;

CALVIN LEWIS; HAYES LEWIS; REGINA A.

LEWIS; ROY W. LEWIS; KAREN LILLEY;

STEPHEN LILLEY; LYLE LINDBERG; ASHLEY

LIPPOLIS-AVILES; BILLY LLEWELLYN; WILLIAM

LOHMANN, JR.; ROBIN LOVETT; DAVID W.

LOVING; KEN LU; MICHELE J. LUIS; MELINDA

LUMPKIN; DIRK LYNCH; GINGER LYNCH;

PATRICIA LYONS; WILLIAM LYONS; DINNE

MACDONALD; DWAYNE MADDOX; SORAYA

MAINS; MELISSA MALONE; THOMAS MALONE;

REGINA MANNING; TERRANCE MANNING;

KIRAN MANTRALA; ANDREA MARCHESE;

STANLEY MARCUS; STEVE MARKOVITS;

KENNETH MARTIN; RACHEL MARTIN;

REYNALDO MARTINEZ; RALPH MARTINI;

CLETIOUS T. MASHBURN; LAUREN MATSKO;

SHAWNA MATTOCKS; LEO MAYNES; PENNY

MCCENEY; STELLA MCCLAIN; WILLIAM

MCCLELLAN; ROBERT MCCLELLAND; SUSAN

MCCLELLAND; SUSAN MCFADDEN; RICHARD

MCGRUDER; VICTORIA MCGRUDER; DONALD

MCINTIRE; ANNE MCKENNA; RACHEL

MCKENZIE; KENNETH MCKINNEY; TERESA

MCLAWHORN; DAVID MEADOWS; RITA

MEDLEY; TOMMY MEDLEY; ROBERT MEEKER;

MICHAEL MEISTER; KAREN MELLER; CARMEN

C. MERCADO; ROBERT E. MICKLE; EDMEE

viii

MIGUEZ-GERSTLE; MICHAEL E. MILLER; LISA

MILLFORD; MICHAEL MINTZ; MARY MITCHELL;

MICHELLE MONROE; CHRIS MOONEY; GARY

MOORE; KAREN MOORE; MELODY MORRIS;

SUZANNE MOWBRAY; RAYMOND MUELLER;

PATRICK MULHERN; DAVID MULLIGAN;

LAURENCE MULLIGAN; MARY MULLIGAN;

BILLIE MUTTER; MELISSA MUTTER; KEVIN

NEWSOME; REVERDY NICHOLSON; SUSAN

NOON; SARAH NOVAK; RACHEL NOVERSA;

TODD NUNNALLY; JONATHAN O'BRIEN;

DARLENE O'DONNELL; JAMES O'DONNELL;

PAUL O'KEEFE; TIMOTHY O'MARA; CAROLYN

O'NEILL; PAUL J. O'ROURKE; MALCOLM

O'SULLIVAN; BRIAN OSBORNE; SARAH OSINSKI;

JESSICA OUTER; HERBERT C. OVERSTREET;

CANDACE OWENS; CHRISTOPHER PALAZIO;

LYNETTE PALMER-FORD; ASHLEY D. PANNELL;

MATTHEW PARK; TERRI PARKER; MICAH

PARMAN; BHAGVATI PATEL; MUKESH PATEL;

PRADIP PATEL; SHREYA PATIL; JOHN PATTIE;

JAMES PEARSALL, JR.; DONNA PEARSON;

OREST PELECH; CHRIS PENA; ROY M.

PENNINGTON, III; THOMAS PEPE; MARK PERRY;

KAREN PETERS; JOHN PETERSON; MARK

PETERSON; REBECCA PETRELLA; SUSAN

PETRIE; ROBERT PETRUSKA; CLAUDE

PETTYJOHN; CARL PIERCE; JANET

PIETROVITO; DEBRA PINES; LINDSEY POLI;

ANGELA POLINKO; CARLTON POLLARD; DAVID

POORE, III; ANTON POPOV; LINDA M. PRATT;

JASON PRICE; ROBERT PUAKEA; SARA PULLEN;

SARHAN QURAISHI; JAMES RADCLIFFE;

MELISSA RADCLIFFE; SCOTT RAMSEY;

JACQUELINE RANDOLPH; MICHAEL RANGER;

ix

NANCY RANSOME; SHELLIE RENZ; SHERI

RESSE; MATTHEW D. REVELLE; STEPHEN

RIBBLE; ANITA RICE; LARRY RICE; RICHARD

RICHARDSON; CARI RICHARDSON; MICHAEL

RICHEY; SARAH RICHEY; MARVIN RIDDICK;

DANNY RIDDLE; JENNIFER RIGGER; WAYNE

RILEY; TAMRIA RISHER; DANIEL ROBERTS;

MARY ROBERTS; SUSAN ROBERTS; GAYE

ROBERTSON; SKYLER ROBEY; ANNIE

ROBINSON; ANTONIO ROBINSON; KEVIN

ROBINSON; PAMELA ROBINSON; ROCKY

ROCKBURN; COLETTE ROOTS; DARYL ROOTS;

GREGG ROSENBERG; ERIC ROTHMAN; BRIAN

ROWE; VIRGINIA A. ROWEN; JULIET ROWLAND;

PAUL ROY; RONALD RUCKER; DAVID RUFFNER,

JR.; JILL RUFFNER; KRISTYN RUZICKA;

JENNIFER RYAN; STEPHEN RYAN; JOSEPH

SALAZAR; RACIN SAM; GEORGE SANCHEZ;

BONNIE SANDAHL; GARY SARKOZI; JEFF

SAUNDERS; JEANNETTE SCHAAR; AILEEN L.

SCHMIDT; EDWARD SCHNITTGER; LINDA RUTH

SCOTT; GWEN SEAL; AMY SEAY; ANTHONY

SELB; DELMAR N. SELDEN; LYNN SETTLE;

RICHARD SEYMANN; SHARON SGAVICCHIO;

SHA'NESHA SHARPE; ROBERT L. SHELLHOUSE;

GARY SHELOR; STEPHANIE SHELOR; BRENDA

SHIFFLETT; NINA SIBERT; DAVID SILVERNALE;

JESSICA SIMONS; MARY SINGHAS; RANDALL

SINGHAS; DONALD SKINNER; RICHARD E.

SMITH; SUZANNE SMITH; CYNTHIA L. SNYDER;

MANDY SNYDER; HOWARD SNYKER; WESLEY

SONGER; JOHN SORESE; RAYMOND M. SOUZA;

SHELLIE S. SPADARO; TONY L. SPARKS; LINDA

SPRADLIN; SUSAN STANDRIDGE; NANETTE

STANLEY; JONATHAN STARKS; EUGENIA

x

STARNES; GARY STECK; REBECCA STECK;

ANDREW STEELEY; CAROLYN RENEE STEVENS;

SARA STEVENS; SASHA STITT; TIM STOESSEL;

CHEVON D. STOKES; EDWARD STOKES;

NATHAN STONE; YOLANDA SULLIVAN; DENNIS

SUMLIN; JOHNNIE SUMLIN; JOHN SUTOR;

WANDA SUTPHIN; STELLA TANG; ANDREW

TAYLOR; ANN TAYLOR; KIMBERLY TAYLOR;

FREDDY TELLERIA; MATTHEW TENGS; JOHN

THACKER; CANDACE TILLAGE; CHRISTOPHER

TOKAR; SUSIE TORTOLANI; MARY TRAINOR;

ADELINE TROTTER; PEGGY TSACLAS; JAMES

TURNER; ROBERT TURNER; RUFUS TUNSTALL;

LUCILLE TYLER; TRAVIS TYSINGER; JOHN

TYSON; CYNTHIA UTLEY; CARRIE VAN HOOK;

DENISE VANGELOS; MILCA VARGAS; ROBERT

VARNER; MARY VAUGHAN; ROBENA D.

VAUGHAN; KELLY VERHAM; KIMBERLY VEST;

CAROL VIERGUTZ; MARY ANN VILLIES;

WALLACE VINGELIS; MARVIN WADE; SANDRA

WADE; SCOTT WAGGONER; TERESA

WAGGONER; MAGI WAGNER; JANE WALLACE;

STACY WALLER; SHERYL WALTERS; GARY

WALTON; KIMBERLY WARD; CATHERINE

WATERS; BERNARD WATTS; MICHAEL WEBB;

SCOTT WEBB; MELISSA WEBSTER; SHARON

WELLS; STEPHANY WHIPPLE; SARAH

WHITLOCK; ROBERT T. WIENER; CHRISTOPHER

WILCHER; DAVID WILD; CHRISTINA WILLIAMS;

GEORGE WILLIAMS; GINER WILLIAMS; DAGNY

WILLS; GARY WILLS; DR. SARAH WILMER;

LESLIE WILSON; ROBIN WILSON; THOMAS

WINSTON; CHARLES WISER; SARA

WOLLMACHER; MIKE WOO; WAYNE H. WOOD;

WAYNE WOODHAMS; STACEY T. WOODS;

xi

ARTHUR WRIGHT; THOMAS WRIGHT; DAVID

WYCKOFF; GINO YANNOTTI; JAMIE YOUNG;

JONG YUN; ATEF ZAYD; ANGELA R.

ZIMMERMAN; RINGO YUNG,

The Defendants are:

HYUNDAI MOTOR AMERICA, INCORPORATED;

ALEXANDRIA HYUNDAI, LLC; BROWN’S

LEESBURG HYUNDAI, LLC; BROWN’S

MANASSAS HYUNDAI, LLC; CHECKERED FLAG

IMPORTS, INCORPORATED; CHECKERED FLAG

STORE #6, LLC; CRAFT AUTOMOTIVE,

INCORPORATED; DUNCAN IMPORTS,

INCORPORATED; FAIRFAX HYUNDAI,

INCORPORATED; FIRST TEAM, INCORPORATED;

GATEWAY HYUNDAI, INCORPORATED; HALL

AUTOMOTIVE GROUP, INCORPORATED; HALL

HYUNDAI NEWPORT NEWS, LLC; HALL

HYUNDAI, LLC; MILLER AUTO SALES,

INCORPORATED; CAVALIER HYUNDAI,

INCORPORATED; HARRISONBURG AUTO MALL,

LLC; JAMES CITY COUNTY ASSOCIATES,

INCORPORATED; MALLOY HYUNDAI; POHANKA

AUTO CENTER, INCORPORATED; PRICE

HYUNDAI CORPORATION; PRIORITY

GREENBRIER AUTOMOTIVE, INCORPORATED;

PRIORITY IMPORTS NEWPORT NEWS,

INCORPORATED; ROBERT WOODALL

CHEVROLET, INCORPORATED; TYSINGER

MOTOR COMPANY, INCORPORATED; WBM,

INCORPORATED, d/b/a West Broad Hyundai;

WRIGHT WAY AUTOMOTIVE, INCORPORATED.

xii

In United States Court of Appeals for the Fourth

Circuit Case No. 17-1582, Abdul-Mumit, et al v.

Alexandria Hyundai, LLC, et al, there are 583 named

plaintiffs and 27 named defendants.

The Plaintiffs are:

JIHAD ADBUL-MUMIT; MATTHEW ABEDI;

MONICA ADAIR SARGENT; MARK AGEE; ALIZ

AGOSTON; YVONNE ALSTON; DAN AMATRUDA;

KRISTY AMBROSE; KIMBERLEY AMICK; WANDA

G. AMOS; CHRISTOPHER ARAUZA; CARL

ARSENAULT; BROOKE ASHER; MICHELLE

ATKINS; RAYMOND O. ATKINS; MATTHEW

ATWELL; DAVID AUB; SOHA AYYASH; ASIF AZIZ;

SUSAN BAILEY; KAREN BAKER; HAB BAKER, III;

TERRY BARNES; JOSEPH BARTELL; HARRY L.

BARTON; BENJAMIN BASHAM; MATTHEW

BASILONE; JOHN BAXTER; JOHN BEASLEY;

TIMM BETCHER; ELIZABETH BELEVAN;

BARBARA BELL; JUDY BENDER; AMINE

BERBALE; JAMES BERLING; SHARON BISDEE;

WILLIAM BONNER; WALTER BORDEAUX; GARY

BOYETTE; TODD BRADBURY; KAREN

BRADBURY; JOHN BRANCATO; WILLIAM

BREWSTER; LORI BRODIE; GLORIA BROOKS;

ELSE BROWN; MELANIE BROWN; ANGELA

BROWN; GARY BROWN; JEANNE BROWN;

SYDNEY BRUMBELOW; JAN BURFORD; SARA

BURRUSS; JAMIE BURTON; JOSEPH

CALDARELLI; JASON CALL; TODD CARLSON;

HOWARD L. CARPENTER; CYNTHIA CARTER;

FREDERICK CARTER; JACKLYN CASSELLETUPPONCE; JARED CASTRO; REBECCA

CATLETT; SUSAN CAVE; KIRT CHAPPELLE;

LINDA CHEESEBORO; ROGER CHESLEY, JR.;

STEVE CHILDRESS; DAN CHO; SUNG CHO;

xiii

SUNG CHUN; WILLIAM CLARK; LINDA CLUNE;

STUART COCHRAN; CHARLES COCHRANE;

ANGEL COLLINS; HENRY SHANE COLVIN;

KARRI COLVIN; CARLY CONNELLY; ANGIE

CONNER; JEREMY CONRAD; PHILIP CORRAO;

KIMBERLY CRAWFORD; MARGARET

CRITTENDON; APRIL CROCKER; WILLIAM

CROMER; JAY CUNNINGHAM; MARY CURTIS;

ROBERT DANIELS; DONNA DAVIS; BOYD DAVIS;

LISA DAVIS; ROGER DAVIS; MICHELLE

DEBROSSE; MICHAEL DECANIO; ALMA DELIA

DELEON; JENNIFER DEMARCO; ANTHONY

DEPAUL, JR.; GEORGE D. DESPERT, III;

CYNTHIA DEVANE; RUTH DIAZ; RON DICKMAN;

SHERI DIXSON; SONYA DODSON; JESENIA

DOMINGUEZ; TERRY DONALDSON; LATAVIA

DREW; ARLENE DREWRY; CHRISTINA

DRUGATZ; KAREN DUNCAN; SANDRA K.

DUNTON; JEFF EDDY; DEBORAH EDGE;

DEBORAH EDGEFIELD; PAMELA EDWARDS;

KASEY EIKE; MIRIAH EISENMAN; FREDERICK

EITEL; SHARON EKSTRAND; NICOLE ELSESSER;

JOSEPH ELTON; KAREN EVANS; MASE FABAR;

FLOYD FALLIN, JR.; JAMES BASHAM;

ELIZABETH FARRELL; MARGIE D. FAULS;

CAITLIN FEELEY; BARRY FELDMAN; BRIAN

FELDMAN; WANDA FERGUSON; JAMES FICKLE;

SHIRLEY FICKLE; SCOTT FLORA; THOMAS

ROBERT FRANCO; JOHN FRANKLIN; TAMMY

FRANKLIN; ANTHONY FREDERICK; TRACY

FREDERICK; THOMAS FREEZE; ADAM FURMAN;

ALICIA FUSCO; DONNA GADDIS; GUILLERMO

GALARZA; IVAN GALLOWAY, JR.; IDA GARNER;

WILLIS M. GARY; KURT GERGLE; TARUN GHAI;

ELAINE GIBSON; HELEN GILLESPIE; MELODY

GILLEY; TANJA GILMORE; BRIAN GLAUB;

BARRY GOLDBERG; SCOTT GOODMAN;

xiv

RICHARD GOULD; TROY L. GRAHAM; GABRIELA

GRAJEDA; ELIZABETH GRANT; BRANDI GRAY;

CHRISTIE GRAY; JANIE GRAY; VALERIE GRAY;

GRAYBERG; AYNDRIA GREEN; DIANA GRIFFIN;

PAUL L. GROVER; JESSICA GROVES; DEDRA

GUENO; CARL GUSSGARD; ARNOLD GUTMAN;

JULIAN GUTTERMAN; TESSIE GUTTERMAN;

LISA HAGERTY; LAUREN HAGY; CEDON J.

HALEY, JR.; DOROTHY HALPIN; NANCY N.

HAMLETT; ERESTINE HARDING; DEBORAH

HARE; AQUISI HARRIS; KENDALL HARRIS;

MARY HARRIS; PATRICE A. HARRIS; BRIANNA

HARRISON; SHARON HARRISON; SHARON

HART; LEE ANN HARTMANN; PATRICIA

HAUSER; DEANNA HAVERLY; LESLIE HEARN;

KATHLEEN HEDRICK; AMANDA HEINLEIN;

CHARLES HELMS; ROBERT HENDRICKSON;

STEPHEN HERMAN; JAMES HERRINGTON;

WILLIAM HESTER, JR.; DEBBIE HETTERLY;

NANCY HICKMAN; JEREMY HILLBERRY; GREG

E. HINES; ROBERT HITE; BRITTANY HOBAN;

PAM HODGES; THURMAN HODGES;

CHRISTOPHER HOEHN; CAROLYN HORCHNER;

JEFFREY HORCHNER; BETTY HORNICK;

JENNIFER HORNING; MAJOR M. HORTON;

BITSY HOUSE; ALYSSA HRONOWSKI; TEDDY

HUDDLESTON; JERRY HUDSON, SR.; HUBERT

HUGHES; SHAY HUNTER; MARK HUSTEAD;

CAROL HUTCHINSON; NATHEN ILLIDGE;

GEORGE IOANNOU; FRANCES JACOCKS;

PATRICIA JACOCKS; JASON JAFFEUX; SALLY

JAMES; STACEY JANSEN; JOYCE JANTO;

WALTER JEFFRIES; JANICE JENKINS; CHELSEA

JOHNSON; MONICA JOHNSON; RASHEEDAH

JOHNSON; TODD JOHNSON; DERWOOD

JOHNSTON; JOHN JOHNSTONE; CHRISTINA

JONES; PAMELA JONES; WILBER B. JONES;

xv

RICHARD JORDAN; SANDRA JORDAN; SHERYL

JORDAN; JENNIFER JUSTICE; KIM KEATING;

CODY KELLY; TERESA KELLY; MELANIE

KENYON; JOHN KERR; SHEA KERSEY; HANNAH

KIGHT; WILLIAM KIGHT; MIKYUNG KIM;

CAROLYN KINES; LARRY KING; SUSAN KING;

VERNON KIRBY; DIANA KITE; EDWARD KIZER;

PATSY KIZER; JOHN A. KNIGHT; CONNIE

KNISELEY; DONNA KNOELL; AMANDA KOZAK;

TAMARA KROBERT; FRANK KULOVITZ; CARL

KURI; KELLY KUSEK; VICTOR C. KVIETKUS;

BRENDA LACKEY; TAMMY LACKEY; MARY

LANG; MARKUS LANGE; CATHERINE LANTZ;

GLENN LAVINDER; CHRISTOPHER LEGENDRE;

BARBARA LEGGETT; DAVID LEHMAN; CALVIN

LEWIS; CALVIN LEWIS; REGINA LEWIS;

DELORES LINDBLOM; WILLIAM LIPFORD;

ASHLEY LIPPOLIS-AVILES; MIKE LITTMAN;

BILLY LLEWELLYN; ROBIN LOVETT; DAVID

LOVING; CYANE LOWDEN; KEN LU; JOSHUA

LUBECK; ROBERT R. LUCAS; PATRICIA LYONS;

WILLIAM LYONS; CHRISTINE MACCASLIN;

ANITA MADISON; JOHN MALIZIA; SUZANNE

MALIZIA; THOMAS MALONE; STANLEY

MARCUS; HEATHER MATSEY; JAMES MATSEY;

RODNEY MATTHEWS; SHAWNA MATTOCKS;

MATTHEW MATTRO; JEFF MAY; HAROLD

MAYHEW, JR.; SHAWN MAYNOR; DIANDRA

MAYO; ROBERT MCCARRAHER; PENNY

MCCENEY; ROBERT MCCLELLAND; MICHAEL

MCCLENNING; ROBERT MCCURDY; JOSEPH

MCDANIEL; SUSAN MCFADDEN; WILLIAM

MCFADDEN; MARK MCGINLEY; RICHARD

MCGRUDER; VICTORIA MCGRUDER; DONALD

MCINTIRE; KAREN MELLER; KAREN MELLER;

CARMEN MERCADO; SCOTT MEYERS; CAROL

MIEGGS; CHRISTY MILLER; DAVID MILLER;

xvi

RON MILLER; MARIA MING LI; MARY

MITCHELL; TERRIE MITCHELL; BANKS

MITCHUM; BENJAMIN MOHER; DAVID

MOLINARI; JUNG MOON; KAREN MOONEY;

BONNIE MOORE; MONTE MORGAN; PHILLIP

MORGAN; WILLIAM MORGAN; BRYON MOSS;

SUZANNE MOWBRAY; DAVID MULLIGAN; MARY

MULLIGAN; NANCY MURRAY; ROGER MYERS;

PATRICK NANCE; DENNIS NEGRAN; PENNIE

NEWELL; GLEN NEWITT; JACQUI NEWITT;

EDWARD NEWMAN, JR.; KEVIN NEWSOME;

REVEREDY NICHOLSON; PATRICIA NICOSIA;

RANDALL NIXON; KAREN NOLAN; RYAN

NOLETTE; BRYAN NORDQUIST; SERGEI

NOVITSKY; JONATHAN O'BRIEN; WILLIAM

O'FLYNN; KAREN O'NEIL; ADRIAN ODYA-WEIS;

DENNIS OLEARY; JOHN OLSEN; TANA RAE

OROPEZA; BRIAN OSBORNE; CANDACE OWENS;

LYNN PAGE; TANYA PALIK; RONA PALMER;

ASHLEY PANNELL; HARRY PAULETTE; TANYA

PEAKE; DONNA PEARSON; RICHARD PEARSON;

JOHN PEDERSEN; CHRIS PENA; ROY MASON

PENNINGTON, III; NICHOLAS PEREZ; GREG

PERIGARD; KIM PERKINS; MARK PERRY; BRADY

PETERS; KAREN PETERS; THOMAS PETIT;

REBECCA PETRELLA; SUSAN PETRIE; ADRIAN

PHILLIPS, JR.; ANNE PICCIANO; JOHN

PICCIANO; CARL PIERCE; SIVATHANU PILLAI;

DEBRA PINES; CHARLES PINKARD; LILIA

PINSON; ARLOVE PLUNKETT; TIMOTHY

POHLIG; DENISE POINDEXTER; RACHEL

POLIQUIN; MARGARET POMEROY; DAVID

POORE, III; LAURA POTTER; KATHY POWERS;

LINDA PRATT; BERNARD PRESGRAVES; JASON

PRICE; DENISE PRYOR; JOSHUA PUCCI;

VICTORIA PUCKETT; SARA PULLEN; TONY

PULLEY; CYNTHIA QUATTLEBAUM; EVA

xvii

RALSTON; WILLIAM RALSTON; HANNAH

RAMEY; JACQUELINE RANDOLPH; THOMAS

RANDOLPH; MICHAEL RANGER; BRAD RANSOM;

HENRY REQUEJO; DAVID REYNOLDS; ROSE

RICKER; DANNY RIDDLE; ROBIN ROBERT;

JOSHUA ROBERTS; MARY ROBERTS; ANNIE

ROBINSON; ANTONIO ROBINSON; ROCKY

ROCKBURN; DREW ROPER; TROY ROSIER; ERIC

ROTHMAN; BRIAN ROWE; JULIET ROWLAND;

JOHN ROWLEY; NANCY ROWSEY; STEPHEN

RUBIS; KYLE RUSSELL; JENNIFER RYAN;

THOMAS RYDER; JOSEPH SALAZAR; RANDALL

SAMPLES; REBECCA SAMUELSON; THOMAS

SANCHEZ; AARON SANDERS; ASOK KUMAR

SARKAR; TOM SCARCELLA; EDWARD SCEARCE;

SHANE SCHLESMAN; WADE SCHWANKE, JR.;

GWEN SEAL; AMY SEAY; BRADLEY SEAY;

CHARLES SELTMAN; PATTY SENTER; LYNN

SETTLE; TIM SEYMOUR; RONALD SHARP;

ERNEST SHARPE; SHIRLEY SHAW; STEPHANIE

SHELOR; MICHELLE SHIFFLETT; SANDRA

SHIFFLETT; JUNE SHORES; D. SHAWN

SHUMAKE; NINA SIBERT; ROBERT SILBER;

CHRISTIAN SIMMERS; MARY SINGHAS;

RANDALL SINGHAS; AMY SMITH; DAPHNE

HOPE SMITH; LISA SMITH; STEPHEN SMITH;

SUZANNE SMITH; KRISTINE SMOLENS;

HOWARD SNYDER; WESLEY SONGER; EMILY

SPARKS; BRIAN SPENCER; SVETLANA

SPENCER; PATRICIA SPIER; LORI SPIK; DEREK

ST. ONGE; RONALD STAFFORD; JONATHAN

STARKS; MARK STEPHENS; TERRY STEPP;

SARAH STEVENSON; ERIC STEWART; ROXANNE

STITH; TIM STOESSEL; JEAN STOTLER; SARA

STRAMEL; LARRY STRAYHORN; FRANKLIN

STURKEY; BEN SULLENGER; YOLANDA

SULLIVAN; JOHN SUTOR; WANDA SUTPHIN;

xviii

SHARON SWINBURNE; STELLA TANG; ANDREW

TAYLOR; ANN TAYLOR; DONNA TAYLOR; JI JI

THEKKEVEEDU; CHRISTOPHER THOME;

MICHAEL THOME; DAVID THOMPSON; TOM

THOMPSON; ASHLI THURSTON; CHRISTOPHER

TOKAR; DION TOMER; CLIFFORD TRIMBLE;

SERGIO TROMBA; ADELINE TROTTER; JAMES

TURNER; JEFFREY TURNER; OWENS TURNER,

JR.; MARILYN TWINE; LONNIE URQUHART;

CHERI VALVERDE; MIKE VAMMINO; CARRIE

VAN HOOK; KATHERINE VANDENBRIEJE;

MILCA VARGAS; MARY VAUGHAN; ROBENA

VAUGHAN; JESSYCA VENICE; KIMBERLY VEST;

CAROL VIERGUTZ; MARYANN VILLIES; PATRICE

VOSSLER; AMADA WAGONER; STACY WALLER;

GARY WALTON; GRETCHEN WARD; SHELIA

WARD; DANIEL WAXMAN; CHRISTOPHER

WEAVER; MARGARET WEBB; LAURA WEISIGER;

STEPHANY WHIPPLE; DAVID WHITLEY; SARAH

WHITLOCK; DIANE WIEN; ROBERT T. WIENER;

CHRISTOPHER WILCHER; MINDY WILLIAMS;

VINCENT WILLIAMS; HANNAH WILSON;

JUANITA WILSON; RIED WILSON; CHARLES

WISER; SHARON WISER; MARK WOEHLER;

KENNETH WOMACK; EMILY WONG; GREGORY

WOODS; KATHERYN WOOSLEY; CAROL

WRIGHT; JONATHAN WRIGHT; MARY WRIGHT;

THOMAS WRIGHT; TIMOTHY WRIGHT, JR.;

LESLIE YAMNICKY; KENNETH YATES; JAMIE

YOUNG; SANDRA YOUNG; ROBERT YOUNIE, II;

ATEF ZAYD.

The Defendants are:

HYUNDAI MOTOR AMERICA, INCORPORATED;

ALEXANDRIA HYUNDAI, LLC; BROWN’S

LEESBURG HYUNDAI, LLC; BROWN’S

xix

MANASSAS HYUNDAI, LLC; CHECKERED FLAG

IMPORTS, INCORPORATED; CHECKERED FLAG

STORE #6, LLC; CRAFT AUTOMOTIVE,

INCORPORATED; DUNCAN IMPORTS,

INCORPORATED; FAIRFAX HYUNDAI,

INCORPORATED; FIRST TEAM, INCORPORATED;

GATEWAY HYUNDAI, INCORPORATED; HALL

AUTOMOTIVE GROUP, INCORPORATED; HALL

HYUNDAI NEWPORT NEWS, LLC; HALL

HYUNDAI, LLC; MILLER AUTO SALES,

INCORPORATED; CAVALIER HYUNDAI,

INCORPORATED; HARRISONBURG AUTO MALL,

LLC; JAMES CITY COUNTY ASSOCIATES,

INCORPORATED; MALLOY HYUNDAI; POHANKA

AUTO CENTER, INCORPORATED; PRICE

HYUNDAI CORPORATION; PRIORITY

GREENBRIER AUTOMOTIVE, INCORPORATED;

PRIORITY IMPORTS NEWPORT NEWS,

INCORPORATED; ROBERT WOODALL

CHEVROLET, INCORPORATED; TYSINGER

MOTOR COMPANY, INCORPORATED; WBM,

INCORPORATED, d/b/a West Broad Hyundai;

WRIGHT WAY AUTOMOTIVE, INCORPORATED.

xx

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDING ............................ ii

TABLE OF CONTENTS ........................................... xx

TABLE OF AUTHORITIES .................................. xxiv

OPINIONS BELOW .................................................... 1

STATEMENT OF JURISDICTION ........................... 1

STATUTORY PROVISIONS ...................................... 3

I. STATEMENT OF THE CASE ............................... 4

A. SUMMARY OF THE STATEMENT OF

THE CASE ..................................................... 4

1.

FACTUAL BACKGROUND GIVING

RISE TO THIS LITIGATION ....................... 6

2.

THE LITIGATION BEGINS IN

CALIFORNIA ................................................ 7

3.

“MULTIDISTRICT LITIGATION

NUMBER 2424--HYUNDAI AND KIA

FUEL ECONOMY LITIGATION” IS

CREATED ...................................................... 9

4.

ENTER THE VIRGINIANS ........................ 11

xxi

II.

5.

THE VIRGINIANS GO TO

CALIFORNIA .............................................. 13

6.

THE LITIGATION RETURNS TO

VIRGINIA—BUT ONLY PARTIALLY ....... 16

7.

MEANWHILE, THE APPELLATE

PROCESS IN THE NINTH CIRCUIT

CONTINUED ............................................... 28

8.

THE WESTERN DISTRICT OF

VIRGINIA RULES ...................................... 28

9.

THE LITIGATION MOVES TO THE

FOURTH CIRCUIT ..................................... 28

10.

THE NINTH CIRCUIT PANEL

RULES ......................................................... 29

11.

ORAL ARGUMENT THEN OCCURS

IN THE FOURTH CIRCUIT ....................... 30

12.

THE FOURTH CIRCUIT RULES .............. 31

13.

THE NINTH CIRCUIT ORDERS A

REHEARING EN BANC ............................. 32

THE FOURTH CIRCUIT’S EXERCISE

OF JURISDICTION OVER THE 809

PETITIONERS NOT REMANDED TO

THE WESTERN DISTRICT OF

VIRGINIA CONTRADICTS HOLDINGS

FROM THE JPML, THE FIFTH

CIRCUIT, AND THE EIGHTH

CIRCUIT ........................................................... 33

xxii

III. THE REFUSAL OF THE FOURTH

CIRCUIT TO CORRECT THE ERROR

OF THE WESTERN DISTRICT OF

VIRGINIA WAS USED TO

IMPROPERLY INFLUENCE THE

NINTH CIRCUIT EN BANC IN ITS

CONSIDERATION OF CHOICE OF

LAW ISSUES .................................................... 34

IV. THE COURT SPEAKS THROUGH ITS

ORDERS ONLY ................................................ 35

V.

WITHOUT THE BENEFIT OF A

RULING ON A MOTION TO DISMISS,

A PLAINTIFF CANNOT TEST IF THE

COURT WILL ACCEPT HIS OR HER

LEGAL POSITION ........................................... 36

VI. REASONS FOR GRANTING THE WRIT ....... 38

CONCLUSION .......................................................... 41

APPENDIX:

U.S. Court of Appeals for the Fourth Circuit

Published Opinion, July 13, 2018............................ A1

U.S. District Court, Western District of

Virginia Opinion, January 23, 2017 ...................... A38

U.S. District Court, Western District of

Virginia Order, January 23, 2017 ......................... A76

U.S. Court of Appeals for the Ninth Circuit

Published Opinion, January 23, 2018 ................... A78

xxiii

U.S. Court of Appeals for the Ninth Circuit

Order on Rehearing, July 27, 2018 ......................A162

U.S. District Court, Western District of

Virginia Opinion and Order on

Reconsideration, April 6, 2017 .............................A175

28 U.S.C.A. § 1407 ................................................A184

Va. Code Ann. § 8.01-267.1 – 267.9 ......................A188

FRCP Title III, Rule 15 .........................................A194

xxiv

TABLE OF AUTHORITIES

CASES

Amchem Products v. Windsor, 521 U.S. 591,

117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997) . 10, 14

American Pipe and Const. Co. v. Utah, 414

U.S. 538 (1924) ................................................. 12

Astarte Shipping Co. v. Allied Steel, 767 F.2d

86 (5th Cir. 1985) .............................................. 34

Bell v. Thompson, 545 U.S. 794,125 S.Ct.

2825, 162 L.Ed.2d 693 (2005) .............. i, 4, 35, 39

Brady v. Hyundai, No. 8:12-CV-1930 (C.D.

Cal. filed Nov. 6, 2012) ......................... 10, 13, 15

California, ex rel. Ven-A-Care of Fla. Keys,

Inc. v. Abbott Labs., Inc. (In re Pharm.

Indus. Average Wholesale Price Litig.),

478 F. Supp. 2d 164 (D.Mass.2007) ................. 24

Casey v. Merck, 283 VA. 411 (S.Ct. VA. 2012) ......... 12

Corley v. Rosewood Care Ctr., Inc., 142 F.3d

1041 (7th Cir.1998) ........................................... 24

Crown Cork & Seal, Inc. v. Parker, 462 U.S.

345 (1983).......................................................... 12

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ............ 25

xxv

Espinosa v. Hyundai Motor America, No. B.C.

476445 (Cal. Sup. Ct. filed Jan. 6, 2012) . passim

Foman v. Davis, 371 U.S. 178 (1962) ................... 4, 40

General Electric Co. v. Byrne, 611 F.2d 670

(1979) ................................................................ 34

Gentry v. Hyundai Motor Am., No. 3:13-cv0030 (W.D. Va. filed Oct. 14, 2013) .......... passim

Hunter v. Hyundai, No. 8:12-CV-01909 (C.D.

Cal. filed Nov. 7, 2012) ......................... 10, 13, 15

Loreley Financing No. 3 Ltd. V. Wells Fargo

Securities, LLC, 797 F.3d 160 (2d.Cir.

2015) ............................................................ 36, 37

Marcantonio v. Dudzinski, 155 F. Supp. 3d

619, 626-27 (W.D. Va. 2015) ............................. 25

Mazza v. Am. Honda Motor Co., 666 F. 3d 581

(9th Cir. 2012) ...................................................... 8

Murtaugh Volkswagen, Inc. v. First National

Bank of South Carolina, 741 F.2d 41

(C.A. 4 1984) ............................................... 35, 39

Owen Equipment & Erection Co. v. Kroger,

437 U.S. 365 (1978) ............................................ 4

Phebus v. Search, 264 F. 407 (8th Cir. 1920) ........... 34

In Re Plumbing Fixture Cases, 298 F. Supp.

484 (JPML, 1968) ............................................. 33

xxvi

Runnion ex rel. Runnion v. Girl Scouts of

Greater Chicago, 786 F.3d 510 (7th Cir.

2015) ...................................................... 37, 38, 40

Stickney v. Wilt, 90 U.S. 150 (1874) ....................... 2, 3

United States v. Hyundai Motor Co., et al,

Case No. 1:14-cv-1837 ........................................ 7

United States ex rel. Johnson v. Shell Oil Co.,

183 F.R.D. 204 (E.D.Tex.1998) ........................ 24

United States ex rel. Pogue v. Diabetes

Treatment Ctrs. of Am., Inc., 238 F.

Supp. 2d 258 (D.D.C.2002) ............................... 24

United States v. Customs Fraud

Investigations, 839 F.3d 242 (3rd. Cir.

2016) .................................................................. 37

United States v. Gwinn, 2008 WL. 867927

(S.D.W.Va. Mar. 31, 2008)................................ 23

Walthall v. Commonwealth, 3 VA. App. 674,

679 (1987).......................................................... 36

Washington Mutual Bank FA v. Superior

Court, 24 Cal. 4th 906 (2001) ........................... 13

Zinser v. Accufix Research Inst., 253 F.3d

1180, 1187 (9th Cir. 2001) ................................. 29

STATUTES

28 U.S.C. §1254(1)....................................................... 1

xxvii

28 U.S.C. §1291 ......................................................... 28

28 U.S.C. §1407 ........................................... 3, 9, 33, 40

Cal. Civ. Code §3294(a) ............................................. 14

Cal. Civ. Code §1780(a) ............................................. 14

VA. Code § 8.01-267.1 et seq. .............................. 11, 25

VA. Code § 59.1-204 .................................................. 14

RULES

Fed. R. Civ. P. 12(a)(1)(A)(i) ..................................... 20

Fed. R. Civ. P. 12(b)(6) ...................................... passim

Fed. R. Civ. P. 15(a)(2) ................................................ 4

Fed. R. Civ. P. 59(E) .................................................. 26

OTHER AUTHORITIES

Hyundai and Kia Clean Air Act Settlement,

EPA, https://www.epa.gov/enforcement

/hyundai-and-kia-clean-air-actsettlement. (June 19, 2008) ................................ 7

Oral Argument Recordings:

https://www.ca9.uscourts.gov/media/view

video.php?pk_vid=0000010947 ........................ 28

xxviii

http://www.ca4.uscourts.gov/

OAarchive/mp3/17-1582-20180509.mp3. ... 30, 31

https://www.ca9.uscourts.gov/media/view_vide

o.php?pk_vid=0000014273 ............................... 33

1

OPINIONS BELOW

This is an appeal from the July 13, 2018 Opinion

of the United States Court of Appeals for the Fourth

Circuit. The style of the cases, considered and ruled

upon together, are Abdul-Mumit, et al v. Alexandria

Hyundai, LLC, et al, Case No. 17-1582;

Abdurahman, et al v. Alexandria Hyundai, LLC, et

al, Case No. 17-1587. The Opinion of the Fourth

Circuit is found at 896 F.3d 278 (4th Cir. 2018). The

Opinion of the United States District Court for the

Western District of Virginia dated January 23, 2017

is found at 2017 WL 354251. The Opinion of the

United States District Court for the Western District

of Virginia dated April 6, 2017 is found at 2017 WL

1289050.

STATEMENT OF JURISDICTION

The date of the judgements sought to be

reviewed were entered on July 13, 2018. The

statutory provision believed to confer on this Court

jurisdiction to review on a writ of certiorari the

judgments or orders in question is 28 U.S.C.

§1254(1).

This Petition demonstrates that the United

States District Court for the Western District of

Virginia, and the United States Court of Appeals for

the Fourth Circuit both made rulings in, and

dismissed with prejudice 809 individual claims

included in the Abdurahman and Abdul-Mumit

cases before this Court. These 809 individual claims

were previously transferred by the Judicial Panel on

Multidistrict Litigation to MDL 2424 in the Central

District of California and were never remanded.

2

Thus, the District Court below, and the Fourth

Circuit, did not have jurisdiction to make any

rulings in these cases. This Court still has

jurisdiction to correct errors of the lower courts

acting without jurisdiction. See, Stickney v. Wilt, 90

U.S. 150, 162-163 (1874) holding:

“Cases wrongly brought up, it may be

admitted, should, as a general rule, be

dismissed by the appellate tribunal, but a

necessary exception exists to that rule

where the consequence of a decree of

dismissal will be to give full effect to an

irregular and erroneous decree of the

subordinate court in a case where the

decree is entered without jurisdiction, and

in violation of any legal or constitutional

right. Rules of practice are established to

promote the ends of justice, and where it

appears that a given rule will have the

opposite effect, appellate courts are

inclined to regard the case as one of an

exceptional character…cases occasionally

arise in which the proceedings in the lower

court are so irregular that a mere

affirmance or reversal upon the merits

would work very great injustice, and in

such cases it is competent for the appellate

court to reverse the judgment or decree in

question and to remand the cause with

such directions, if it be practicable, as will

do justice to both parties...Serious

embarrassment often arises in such cases

where it appears that the subordinate

court is without jurisdiction, but that

3

difficulty does not prevent this court from

assuming jurisdiction, on appeal, for the

purpose of reversing the judgment or

decree rendered in such subordinate court,

in order to vacate the same, when rendered

or passed without authority of law.”

Stickney v. Wilt, 90 U.S. 150, 162-163

(1874).

As demonstrated in this Petition the errors of

the Fourth Circuit, made without jurisdiction, work

“very great injustice” and impair the integrity of the

judicial process. The Defendant/Appellee below,

Hyundai, used the errors of the Fourth Circuit in an

attempt to gain an advantage in the MDL

proceeding pending before the En Banc United

States Court of Appeals for the Ninth Circuit. The

Ninth Circuit is adjudicating issues which

substantially affect a rule of national application in

which there is an overriding need for national

uniformity. As held in Stickney v. Wilt, id., there is

“great injustice” if Hyundai were to “obtain the full

benefit of a judgment or decree rendered in [its] favor

by a court which had no jurisdiction to hear and

determine the controversy.” Stickney v. Wilt, p. 162.

Thus, this Honorable Court has jurisdiction under

the rule declared in Stickney v. Wilt. id.

STATUTORY PROVISIONS INVOLVED

IN THE CASE

This Petition involves 28 U.S.C. §1407

“Multidistrict Litigation”. The statute is lengthy and

is set out in the Appendix pursuant to Supreme

Court Rule 14 (1)(f). App. 184-187.

4

The Petition involves Federal Rule of Civil

Procedure 15(a)(2). The Rule in its entirety is

lengthy, and is set out in the Appendix pursuant to

Supreme Court Rule 14(1)(f).

I.

STATEMENT OF THE CASE

A. SUMMARY OF THE STATEMENT OF

THE CASE

The legal principles controlling this case are

clear:

1.

Federal courts are courts of

limited jurisdiction. “The limits upon

Federal jurisdiction, whether imposed

by the Constitution or by Congress,

must be neither disregarded nor

evaded.” Owen Equipment & Erection

Co. v. Kroger, 437 U.S. 365, 374 (1978);

2.

A court speaks through its orders,

not its memorandum opinion. Bell v.

Thompson, supra.; and

3.

The right to amend a complaint is

liberal and freely given under FRCP

15(a)(2). This Rule must be heeded.

Foman v. Davis, 371 U.S. 178, 182

(1962).

The Fourth Circuit’s departure from these

principles has impaired the integrity of the judicial

process in a case of significant national importance

involving federalism issues in a class action

Multidistrict Litigation currently pending on appeal

before the En Banc Ninth Circuit. The complex, class

5

action, Multidistrict Litigation must be described in

detail for this Honorable Court to see the magnitude

of the harm caused to the Petitioners, and 16,000+

other Virginians, by the errors of the Fourth Circuit.

In sum, the United States District Court for the

Western District of Virginia, as affirmed by the

Fourth Circuit, improperly exercised jurisdiction

over, and dismissed with prejudice, hundreds of

individual consumer protection and breach of

warranty claims of purchasers of Hyundai Elantras

when these claims had been previously transferred

to Multidistrict Litigation 2424 “Hyundai and Kia

Fuel Economy Litigation” and were not remanded.

This resulted in inconsistent rulings between the

MDL Court and the Western District of Virginia, as

affirmed by the Fourth Circuit. Additionally, as

shown hereafter, when the Fourth Circuit asked

Hyundai’s counsel:

“You’re not going to turn around in

California and say these claims are

dismissed?”

Hyundai’s counsel responded:

“We are not, and we have taken

that position in all our briefing.”

As shown hereafter, when Hyundai’s counsel

appeared later before the En Banc Ninth Circuit, he

argued the choice-of-law issue pending before the

Ninth Circuit should be in Hyundai’s favor because:

“All 1200 of these individual

suits were dismissed on the

6

merits affirmed by the Fourth

Circuit. So, in fact, when

those claims were pursued

they did not have better

remedies at all, they got no

remedy whatsoever.”

The improper dismissal with prejudice of

hundreds of cases the Western District of Virginia

and the Fourth Circuit had no jurisdiction over has

impaired the integrity of the judicial process in the

adjudication of issues of national application1

arising from the MDL Court and pending before the

En Banc Ninth Circuit.

1. FACTUAL BACKGROUND GIVING RISE

TO THIS LITIGATION

In 2011 and 2012, a nationwide advertising

campaign by Hyundai stated its Elantra model

obtained 40 miles-per-gallon (“MPG”). But according

to the United States Department of Justice, Hyundai

used improper methods to calculate greenhouse gas

emissions resulting in a false fuel economy estimate

upon which the advertising was allegedly based.

According to the Justice Department, the improper

methods used by Hyundai included selecting results

from test runs that were aided by a tailwind,

selecting only favorable results from test runs rather

1 Ninth Circuit Local Rule 35-1, provides Rehearing En Banc is

appropriate in cases which “substantially affects a rule of

national application in which there is an overriding

need for national uniformity.” Having granted a rehearing

En Banc, the Ninth Circuit has found the federalism and

choice-of-law issues arising from MDL 2424 meet this criteria.

7

than averaging a broader set of results, restricting

testing times to periods when the temperature

allowed vehicles to coast farther and faster, and

preparing vehicle tires to improve the test results.

See, U.S. v. Hyundai Motor Co., et al, Case No. 1:14cv-1837, District of Columbia District Court,

Complaint at paragraph 37.

Hyundai agreed to pay the largest civil penalty

then in the history of the Clean Air Act $93,656,000. See, Hyundai and Kia Clean Air Act

Settlement, EPA, https://www.epa.gov/enforcement

/hyundai-and-kia-clean-air-act-settlement. (June 19,

2008). Hyundai also forfeited greenhouse gas

emissions credits valued “over $200 million.” Id.

2. THE LITIGATION BEGINS IN

CALIFORNIA

In January 2012 a putative nationwide class

action suit was filed in state court in Los Angeles

County, California. See, Espinosa v. Hyundai Motor

America, No. B.C. 476445 (Cal. Sup. Ct. filed Jan. 6,

2012). The complaint asserted claims under

California’s consumer protection laws and common

law, alleging Hyundai had falsely advertised its 2011

and 2012 Elantra vehicles obtain 40 miles-per-gallon

(MPG) on the highway, when in fact these vehicles

get far lower MPG. The Espinosa plaintiffs sought

legal and equitable relief on behalf of a putative

nationwide class of owners of specified vehicles,

including Elantras, who purchased or leased their

vehicles in the entire United States.

Espinosa was removed to the United States

District Court for the Central District of California.

8

For the purposes of this Petition the Central District

of California court made two significant rulings.

First, on April 23, 2012 the Central District of

California overruled a Motion to Dismiss asserted on

preemption grounds, holding, “plaintiffs’ claims rest

on allegations that Hyundai voluntarily made

additional assertions, beyond the disclosure of

mileage estimates, that are untrue or misleading,

and that federal law does not require, or even

address” and therefore are not preempted. See,

Espinosa, et al v. Hyundai Motor Am., et al, Case

2:12-cv-00800-GW-FFM, Doc. 27, filed 01/23/12, p. 4

of 7 (C.D.Cal.). This ruling is significant because, as

shown hereafter, the Western District of Virginia

later made an inconsistent ruling that the same

claims of the Petitioners are preempted by Federal

law.

Next, the Central District of California Court

was asked to certify a nationwide trial class in spite

of the fact Espinosa only asserted claims under

California law. Hyundai opposed certification of a

nationwide trial class. In November 2012, the

Central District of California court adjudicated the

motion for certification of a nationwide trial class

and held it was required to perform a choice-of-law

analysis. The Court found that California had

sufficient contacts to support the extraterritorial

application of California law to all claims, but “just

as in Mazza v. Am. Honda Motor Co., 666 F. 3d 581

(9th Cir. 2012), the three-part choice-of-law

test..comes out in [Hyundai’s] favor” prohibiting the

certification of a nationwide trial class.

The Central District of California found that the

“Appendix of Variations in State Law” submitted by

Hyundai in its opposition to certification of a

9

nationwide trial class “unquestionably demonstrates”

material difference in the various States’ laws that

would make a difference in the litigation. The

Central District of California held the legitimate

interests of other States would be more impaired

were California law imposed upon their citizens then

California would be impaired if the class action was

limited to a class of only California consumers.

Certification of a nationwide trial class was

precluded because the need to apply the laws of the

various States to out-of-state purchasers destroyed

the “predominance” requirement of Rule 23(b)(3)

because common questions of law and fact would no

longer predominate.

3. “MULTIDISTRICT LITIGATION NUMBER

2424--HYUNDAI AND KIA FUEL ECONOMY

LITIGATION” IS CREATED

On November 2, 2012 the United States

Environmental Protection Agency announced that

the results of an investigation confirmed that

Hyundai used improper test procedures to develop

the fuel efficiency information submitted to it for

certain 2011, 2012, and 2013 models. Hyundai

agreed to revise its fuel economy ratings. At this

point, class action cases were filed throughout the

country. Proceedings were initiated before the

Judicial Panel on Multidistrict Litigation, (JPML)

under 28 U.S.C. §1407 requesting twelve putative

class actions against Hyundai related to the

marketing and advertising of the fuel efficiency of

Hyundai vehicles be transferred to a single district

for coordinated pretrial proceedings. On February 6,

2013, the JPML created “Multidistrict Litigation No.

10

2424” In Re Hyundai and Kia Fuel Economy

Litigation and transferred all pending actions to the

Central District of California because of its

familiarity with the issues from presiding over the

Espinosa action. 56 actions were ultimately

transferred to the Central District of California

Court including, eventually, the cases at bar,

Abdurahman and Abdul-Mumit.

One week after the JPML issued its transfer

order, and shortly after the Espinosa court made it

clear a nationwide trial class was not possible, the

Espinosa plaintiffs, along with the plaintiffs in two

other actions, Brady v. Hyundai, No. 8:12-CV-1930

(C.D. Cal. filed Nov. 6, 2012) and Hunter v. Hyundai,

No. 8:12-CV-01909 (C.D. Cal. filed Nov. 7, 2012),

informed the Central District of California court

they had reached a proposed settlement with

Hyundai for a single nationwide class. These

plaintiffs, (none of whom purchased cars in

Virginia,) along with Hyundai, in spite of the

“heightened” scrutiny for certification of settlement

classes required by Amchem Products v. Windsor,

521 U.S. 591, 620, 117 S.Ct. 2231, 2248, 138 L.Ed.

2d 689, (1997), agreed that the District Court should

certify a nationwide settlement class of all persons

who were current and former owners and lessees of

specified Hyundai and Kia vehicles on or before

November 2, 2012. The predicted average total lump

sum payment for the nationwide class members

owning or leasing Hyundai Elantras was $353.

Hyundai was to obtain a release of all claims in the

nation. Hyundai also agreed to pay class counsel

reasonable attorneys’ fees to be negotiated and

awarded separately from the proposed payments to

class members.

11

4. ENTER THE VIRGINIANS

Not happy with a proposed $353 recovery, a

group of Virginians filed another action against

Hyundai in the Western District of Virginia. See,

Gentry v. Hyundai Motor Am., No. 3:13-cv-0030

(W.D. Va. filed Oct. 14, 2013). The Gentry plaintiffs

asserted claims under Virginia consumer protection,

false advertising, and vehicle warranty laws on

behalf of a putative class of those who purchased a

2011, 2012, or 2013 Hyundai Elantra in Virginia

only. From best available information, this proposed

Virginia-only class consisted of over 16,000

individual owners of Elantras.

On October 30, 2013, Hyundai noticed the

Gentry action to the JPML as a “tag-along” action

related to MDL 2424. Hyundai sought a stay in

Gentry pending the expected transfer order by the

JPML to send the case to MDL 2424 in the Central

District of California. Hyundai asserted a stay was

“necessary to ensure that similar actions are treated

in a comparable and consistent manner…” “…we

don’t want to invite inconsistent rulings…” and that

a stay “avoids the risk of inconsistent rulings.” On

November 20, 2013, the Western District of Virginia

Court stayed Gentry with the specific finding that it

would “avoid the possibility of conflicting judicial

determinations” pending a determination of whether

Gentry would be transferred to MDL 2424 in the

Central District of California.

On December 18, 2014, counsel for Gentry filed

Abdurahman, et al v. Alexandria Hyundai, et al, in

the City of Roanoke, Virginia Circuit Court pursuant

to Virginia’s Multiple Claimant Litigation Act, VA.

Code §8.01-267.1 et seq. Abdul-Mumit, et al v.

12

Hyundai, et al, was filed on January 10, 2014

pursuant to the same statute. In these two suits 809

named plaintiffs purchased Elantras before

November 2, 2012, and 489 bought them after

November 2, 2012. Because no class was certified in

the MDL at this time, there was no need to separate

the two groups.

Since certification of Gentry was not guaranteed,

Abdurahman and Abdul-Mumit had to be filed to toll

the statute of limitations because Virginia does not

recognize “cross-jurisdictional tolling”. See,

American Pipe and Const. Co. v. Utah, 414 U.S. 538

(1924). See also, Crown Cork & Seal, Inc. v. Parker,

462 U.S. 345 (1983) (holding statute of limitations is

tolled for putative class members during the period a

class action is pending.) In Virginia the filing of a

class action, in Virginia or elsewhere, does not toll

the statute of limitations for putative class members

who opt out of a class and who file a subsequent suit

unless the named plaintiffs in the class action are

certified as recognized representatives of the

plaintiff class and they plead the same cause and

right of action as the subsequent individual suit.

Casey v. Merck, 283 VA. 411 (S.Ct. VA. 2012). It was

also necessary to include as defendants the

individual Hyundai dealerships as Hyundai asserted

it was the dealerships that mis-represented the

Elantras obtained 40 MPG, not Hyundai. The

Western District of Virginia stayed Abdurahman

and Abdul-Mumit on the same grounds that it

stayed Gentry—to avoid inconsistent rulings in the

cases pending in Virginia with the MDL court in

California, as the transfer was believed to be

imminent.

13

5. THE VIRGINIANS GO TO CALIFORNIA

With Gentry, Abdurahman, and Abdul-Mumit all

transferred to MDL 2424 in the Central District of

California, the litigation stalled until December 23,

2013, when plaintiffs in Hunter, Brady, and

Espinosa moved for class certification of a

nationwide settlement class and preliminary

approval of the proposed national settlement. The

Hunter, Brady, and Espinosa Complaints only

asserted California causes of action.

In May 2014, counsel for the Virginians in

Gentry, Abdurahman, and Abdul-Mumit

(hereinafter, “the Virginians”) opposed both

certification of a nationwide settlement class and

approval of the proposed settlement. Standing on the

Constitutional principle that federalism requires

that Virginia law must be respected by Courts in

other States, the Virginians argued that California

choice-of-law rules did not allow certification of the

class. Most of the contracts of the Virginians

contained a Virginia choice-of-law provision. Under

California law “an otherwise enforceable choice-oflaw agreement may not be disregarded merely

because it may hinder the prosecution of a multi-state

or nationwide class action or result in the exclusion

of non-resident consumers from a California-based

class action.” Washington Mutual Bank FA v.

Superior Court, 24 Cal. 4th 906, 918 (2001). Under

California’s governmental interest test, there were

material conflicts in the law of Virginia as compared

to the law and remedy sought to be applied by the

California causes of action asserted by Espinosa,

Hunter, and Brady. The Virginia Consumer

Protection Act (“VCPA”) provides for a minimum of

14

$500 in statutory damages for individuals who suffer

damage as a result of a violation of the Act. See VA.

Code Ann. §59.1-204(A). California’s Consumer

Legal Remedies Act (“CLRA”) sets no statutory

minimum damages for individuals who suffer

violations of the Act. See Cal. Civ. Code §1780(a).

Virginia’s statutory minimum of $500 is superior to

the average maximum lump sum benefit of $353 the

Virginia class members would be entitled to under

the settlement. Also, under the VCPA, the trier of

fact can award treble damages within its discretion

if it finds that the violation was “willful”, see VA.

Code Ann. §59.1-204; under CLRA, the trier of fact

can only award punitive damages if it finds “clear

and convincing evidence” of “oppression, fraud, or

malice.” Cal. Civ. Code §3294(a). Even more

significantly, Virginia law requires the re-purchase

of the vehicle if a jury found that the difference in

mileage promised – 40 MPG – compared to the

actual – 32 MPG – constituted a significant

impairment to the use and value of the vehicle.

Under California law, a repurchase is not required

unless there is a safety hazard in the car.

Not only were the Virginia causes of action

materially different from those asserted by the

Settling Plaintiffs, but Virginia also had a strong

interest in having its law apply. Even without the

contractual choice-of-law provisions, California law

would require courts to apply Virginia law.

In August 2014, despite its earlier finding that a

nationwide trial class could not be certified because

of the material differences in State law that would

affect the outcome in each State, and despite the

“heightened” scrutiny required for settlement classes

under the Court’s ruling in Amchem Products v.

15

Windsor, supra, the Central District of California

granted class certification of a nationwide settlement

class without addressing variations in State law. The

Central District of California declined to apply

California’s choice-of-law rules to determine whether

California law was applied to the class, or to make

any choice-of-law ruling. The Central District of

California Court gave preliminary approval of the

proposed settlement, finding it sufficiently fair,

reasonable, and adequate to merit disseminating

notice to the class.

In March, 2015, the Hunter, Brady, and

Espinosa plaintiffs, along with Hyundai, jointly

moved for final approval of the class settlement.

During the class settlement litigation, the

Central District of California court expressed its

view of liability in these cases:

“The Court: I agree that during the first

portion of this case, the original Espinosa

case, there was certainly doubt, et cetera, et

cetera, et cetera. But, certainly, after

November of 2012, this was – let’s put it

this way, the liability aspect of this case

was no longer a major problem.

Mr. McCune: I am not sure defense would

agree with that, but it was in a different

posture.

The Court: Put it this way, the reason why

the defense stepped up so quickly in

regards to its proposed, not necessarily

settlement, but proposed plan relatively

quickly was it recognized that the issue of

16

liability was pretty much over at that point

in time.”

See, Transcript from MDL 2424 dated March 19,

2015 at p. 23.

This is significant because later, as shown

hereafter, the Western District of Virginia court

made an inconsistent ruling that the claims in these

cases did not surpass the “plausibility” standard of

Twombly and Iqbal. App. p. 68.

In June, 2015, the Central District of California

gave its final approval of the class settlement and

reaffirmed that the certification of the nationwide

class was proper under Rule 23(b)(3). The Gentry

plaintiffs filed a Notice of Appeal to the United

States Court of Appeals for the Ninth Circuit on July

8, 2015.

6. THE LITIGATION RETURNS TO

VIRGINIA—BUT ONLY PARTIALLY

In September 2015, the JPML, upon the advice

of the Central District of California, issued an order

separating specific claims from MDL 2424 for

remand back to the Western District of Virginia. The

remand order specified the claims separated and

remanded to the transferor court to be:

(1)

“persons who purchased 2011-2013

Hyundai Elantra vehicles in the State of

Virginia after November 2, 2012 notice

date; and

17

(2) the claims of any MDL No. 2424 class

member plaintiffs in these cases who

timely opted out of the MDL settlement.”

On December 11, 2015, the Western District of

Virginia Court issued an order “to provide the Court

with a status report on this case within 21 days.”

Thereafter both Hyundai’s counsel and Petitioners’

counsel submitted status reports. Both Hyundai and

Petitioners’ counsel informed the Western District of

Virginia Court of the proceedings in MDL 2424 and

the status of briefing on appeal in the United States

Court of Appeals for the Ninth Circuit. Pertinent to

this Petition, Hyundai’s status report included the

following requests of the Western District of Virginia

Court:

“Defendants therefore request the Court

enter a scheduling order as follows:

1. Within 30 days of the Court’s

scheduling order plaintiffs are to file

amended complaints in

Abdurahman, Abdul-Mumit, and

Gentry that identify:

a. The name, VIN, dealership,

and date of purchase for each

plaintiff, and

b. The claims on which plaintiffs

are proceeding. (emphasis added).

2. Concurrent with the filing of the

amended complaints in Abdurahman,

18

Abdul-Mumit, and Gentry, plaintiffs

should file an indication as to whether

they intend to seek to proceed with

post-November 2, 2012 claims as a

class action (Gentry) or a mass action

(Abdurahman and Abdul-Mumit).

3. The form of action in which

plaintiffs are not proceeding should be

stayed, so if plaintiffs elect to proceed

as a class action (Gentry), then the

mass actions (Abdurahman and

Abdul-Mumit) will be stayed.

4. In the case or cases for the form of

action in which plaintiffs elect to

proceed, defendants have 45 days from

filing of the three amended complaints

to respond.

5. In the form of case that is

proceeding and not stayed in entirety,

discovery is stayed until the Court has

ruled on defendants’ motion to

dismiss.

6. For the six pre-November 2,

2012 plaintiffs who opted out of

the nationwide class settlement,

their claims are stayed until the

appeal of the nationwide class

settlement is resolved.” (emphasis

added).

19

Hyundai only requested the Western District of

Virginia Court to order amended Complaints to

identify “the name, VIN, dealership, and date of

purchase for each plaintiff, and the claims on which

plaintiffs are proceeding.” It is also significant that

Hyundai expressly sought a stay of Abdurahman

and Abdul-Mumit, to resolve the post-November 2,

2012 aspects of Gentry, and sought a stay of the preNovember 2, 2012 claims “until the appeal of the

nationwide class settlement is resolved.”

On January 9, 2016, the Petitioners reported to

the Western District of Virginia Court that:

“The proposed amendment to the

pleadings is not necessary at this

point because the Gentry First

Amended Complaint encompasses all

of the post-November 2, 2012 cases in

its asserted class, so it is not

necessary to identify any individuals

by name because Hyundai already

knows who they sold Elantra’s to in

Virginia after November 2, 2012.

Hyundai already knows the VIN

number, the dealership, and the date

of purchase. Hyundai merely seeks to

delay and impose unnecessary

procedural work on the Plaintiffs’

counsel

while

avoiding

the

substantive progress that is needed in

this case.”

On June 4, 2016, six months later, the Western

District of Virginia Court entered an Order stating,

in pertinent part, as follows:

20

“Given the proceedings in the MDL, the

voluminous nature of the complaints,

their possible duplication, and the fact

that Defendants never had their motions

to dismiss adjudicated on the merits, the

Court is attuned to the possibility

that the complaints now may be stale

and in need of updating. But it is also

axiomatic that a plaintiff is the master of

his complaint. Accordingly, the Court

orders the following:

 Plaintiffs in each case shall have 21

days from the date of this Order to elect

whether to file amended complaints.

 If Plaintiffs do not file amended

complaints by that date, then the

original complaints will be deemed

operative. Defendants must then respond

by either renewing their original motions

to dismiss or by filing new responsive

pleadings or motions within the time

set

forth

in

Fed.

R.Civ.P.

12(a)(1)(A)(i).” (emphasis added).

On July 13, 2016, Petitioners’ counsel wrote to

the Western District of Virginia that counsel had

exchanged additional information identifying preand-post November 2, 2012 plaintiffs, and opt-outs.

Petitioners’ counsel stated:

“I do not see how we can amend the

Complaint to only include opt-outs and

post-November 2, 2012 plaintiffs because

21

the case is still on appeal in the Ninth

Circuit. If we prevail in the Ninth Circuit,

those who [did not opt out] will have viable

claims again, so I do not think their

claims should be dismissed.”

The Western District of Virginia responded by

ordering:

“Plaintiffs have until August 1, 2016 to

file amended complaints (or, if they do

not, allow their prior complaints to

become operative). The Court does not

intend

to

further

this

deadline.

Defendants have 21 days thereafter to file

responsive pleadings or motions (or renew

prior such filings if applicable.)”

From this Order, the Western District of

Virginia, and the Fourth Circuit held the Petitioners

lost the liberal right to amend under Rule 15 even

though Hyundai’s Motion to Dismiss that the Court

adjudicated was not filed until August 22, 2016, 22

days after the deadline to amend, and the

Petitioners did not have the benefit of a ruling from

the Court on whether their Complaints were

sufficient as pled, which would not come until

January 23, 2017.

Although Hyundai greatly protested it did not

know which of the Plaintiffs were pre-or-post

November 2, 2012 purchasers, the Petitioners had

already provided this to Hyundai before the

litigation in Virginia was stayed. On February 17,

2014, the Petitioners filed “Plaintiffs’ Motion to

Organize Plaintiffs Who Obtained Elantras After

22

November 2, 2012, for Litigation Purposes Separately

From Those Who Obtained Elantras Prior to

November 2, 2012.” This motion included a list

identifying the 489 named plaintiffs who were postNovember 2, 2012 purchasers. This motion was

never adjudicated because Hyundai moved to stay

the litigation while it was transferred to the MDL in

California.

Hyundai’s Motion to Dismiss asserted:

(1) the plaintiffs lack Article III standing

because they failed to amend their Complaints

to identify the amended plaintiffs and allege

basic facts to establish a case or controversy;

(2) plaintiffs’ claims are preempted by federal

law;

(3) the district court should decline to

intervene because the EPA has primary

jurisdiction regarding fuel economy estimates;

(4) plaintiffs who bought or leased before

November 2, 2012 lack Article III standing;

(5) plaintiffs failed to plead a claim under

Virginia’s Lemon Law;

(6) plaintiffs’ Virginia Consumer Protection

Act (VCPA) and false advertising claim fail

because the claims of EPA fuel economy

estimates in advertising is not actionable as a

matter of law;

(7) plaintiffs failed to plead a claim under the

VCPA;

(8) plaintiffs failed to plead a false advertising

claim; and

(9) the post-November 2, 2012 plaintiffs in

Abdurahman and Abdul-Mumit are

duplicative of the Gentry action.

23

Hyundai’s Motion to Dismiss did not assert the

Petitioners’ Complaints failed to meet the Twombly

and Iqbal plausibility standard. In spite of obtaining

a stay pending transfer of the Virginia cases to MDL

2424 because “we don’t want to invite inconsistent

rulings,” Hyundai invited inconsistent rulings on the

preemption issue previously ruled upon by the MDL

Court in California.

The Petitioners had previously filed oppositions

to the Hyundai’s earlier motions to dismiss and

expressly requested “If the Court is inclined to

dismiss…on the grounds of a Rule 9(b) particularity

requirement, the Plaintiffs request and the Court

should grant leave to amend the Complaint.” This

request was made seven times in the pleadings and

filed with the Court’s electronic case filing system

and appear in the record.2

The Petitioners asserted their complaints

complied with relaxed pleading standards as

previously allowed in the Fourth Circuit and

numerous other Courts throughout the Country. See,

United States v. Gwinn, 2008 WL 867927 (S.D.W.Va.

Mar. 31, 2008) (Holding “In cases where there has

been extensive allegations resulting in numerous

instances of fraud, other courts have held that ‘strict

application of the requirements of Rule 9(b) may be

2 The District Court, in refusing to allow amendment, found

“And at no time during adjudication of the motions to dismiss

did Plaintiffs suggest they might seek leave to amend or had

other facts to put before the Court.” App. p. 74. Similarly, the

Fourth Circuit, even after the Petitioners in their brief cited

the exact Excerpts of Record where these seven requests to

amend are located, found “…these requests were only

mentioned, in passing, in emails to the district court.” App. p.

34, FTNT 7. There is no basis for these findings as the record

plainly establishes otherwise.

24

relaxed…”. See also, California, ex rel. Ven-A-Care of

Fla. Keys, Inc. v. Abbott Labs., Inc. (In re Pharm.

Indus. Average Wholesale Price Litig.), 478

F.Supp.2d 164, 171-72 (D.Mass.2007); Corley v.

Rosewood Care Ctr., Inc., 142 F.3d 1041, 1050 (7th

Cir.1998); (United States ex rel. Johnson v. Shell Oil

Co., 183 F.R.D. 204, 206-07 (E.D.Tex.1998);

(collecting cases that apply relaxed standard.);

United States ex rel. Pogue v. Diabetes Treatment

Ctrs. of Am., Inc., 238 F.Supp.2d 258, 268

(D.D.C.2002). The Petitioners also responded to

each aspect of Hyundai’s Motion to Dismiss.

Oral argument on Hyundai’s Motions to Dismiss

occured in the Western District of Virginia on

December 1, 2016. Hyundai’s counsel did not

mention a lack of plausibility under the Twombly or

Iqbal cases. Hyundai’s counsel argued there was no

causal relationship between the misrepresentations

and the damages alleged, the claims were

preempted, and there were no individual allegations

pertaining to each of the 1,298 named plaintiffs.

On January 23, 2017, the Western District of

Virginia issued its ruling on Hyundai’s Motions to

Dismiss. Though the District Court ruled in the

Petitioner’s favor finding they had Article III

standing and the EPA did not have primary

jurisdiction, the Western District of Virginia ignored

the ruling of the Central District of California, and

every other Federal Court to rule on the issue, and

held all fuel mileage claims were preempted. App.

pp. 48-51.

Pertinent to this Petition the Western District of

Virginia Memorandum Opinion stated:

25

“As Defendants observe, ‘there is not a

single substantive allegation anywhere in

either Complaint about any dealer.’ Dkt.

104-1 at 3). The complaints instead lump

the dealers in with generic statements made

about HMA. As this Court has observed

before, ‘[i]n the Fourth Circuit and

elsewhere, courts have interpreted Twombly

and Iqbal to mean that generic or general

allegations about the conduct of

‘defendants,’ without more, fail to state a

claim.’ See, Marcantonio v. Dudzinski, 155

F. Supp. 3d 619, 626-27 (W.D. Va. 2015)

(compiling cases.)

Plaintiffs’ response on this score states that

these lawsuits were filed pursuant to

Virginia’s class action/ consolidation

/coordination statute, Va. Code § 8.01267.1, for ‘efficiency,’ and ‘it would abate

the savings the statute was intended to

provide if each and every particular fact

unique to each Plaintiff is required.’

(Abdurahman, dkt. 105 at ECF 11). While

‘each and every’ unique fact is not required,

federal pleading standards nevertheless

control in federal court, see generally Erie

R. Co. v. Tompkins, 304 U.S. 64 (1938),

and the Complaints here fail those

standards.” App. p. 68.

This portion of the Western District of Virginia’s

memorandum opinion is the only place where

“Twombly and Iqbal” are referred to or mentioned in

any way. The District Court did not mention the

26

cases Petitioners relied on for a relaxed pleading

standard. The District Court also made numerous

rulings on Virginia State law claims ruling the

Petitioners did not give proper notice or allow a

sufficient number of repair attempts under the

Virginia Lemon Law. App. pp. 70-71. The District

Court held the Petitioners failed to plead their VCPA

claims with the particularity of a fraud claim under

Rule 9(b) and also failed to plead reliance. App. p.

72.

Finally, the District Court ruled the Petitioners’

Complaints would be dismissed with prejudice and

without leave to amend. App. pp. 73-75. The District

Court ruled “And at no time during adjudication of

the motions to dismiss did Plaintiffs suggest they

might seek leave to amend.” App. p. 74.

The Western District of Virginia’s Final Order

entered January 23, 2017 stated, in pertinent part:

“In Abdurahman and Abdul-Mumit,

the motions to remand are DENIED.

The motions to dismiss those cases are

GRANTED. Accordingly, those cases

are DISMISSED with prejudice. The

Clerk is requested to strike

Abdurahman and Abdul-Mumit from

the active docket of the Court.” (App. p.

77)

On February 8, 2017 the Petitioners filed a

timely Motion to Alter or Amend Opinion, Judgment,

and Order of Dismissal Pursuant to FRCP 59(E),

and a Memorandum in Support thereof. The

Petitioners pointed out errors the District Court

made under Virginia law. For purposes of this

27

Petition the District Court was informed again it did

not have jurisdiction over the 809 pre-November 2,

2012 claims and that the Final Order dismissed the

Abdurahman and Abdul-Mumit cases in their

entirety with prejudice. Given that only 489 of the

1,298 plaintiffs were remanded, counsel asserted it

was difficult to amend part of the Complaint, but not

all of the Complaint. Furthermore:

“As an additional issue, Plaintiffs’

counsel understood this Court to offer

the opportunity to amend the

Complaints if it was thought the

Complaints were “stale” as a result of

the proceedings in the MDL. See,

Docket # 86. Undersigned counsel did

not understand that the Court

considered the Complaints deficient

under the Federal Rules and that he

should amend. If the Plaintiffs’ counsel

understood this, of course, he would

have amended. Accordingly, the

Plaintiffs should have the opportunity

to amend as such opportunity has not

occurred after the Court has expressed

its views.”

The Petitioners demonstrated to the District

Court that the defects the Court observed could be

corrected. Petitioners submitted Affidavits from the

seven “opt-out” plaintiffs and considerable

correspondence from many of the named plaintiffs in

support of this representation. The Petitioners

renewed their previous motions for leave to amend.

28

7. MEANWHILE, THE APPELLATE PROCESS

IN THE NINTH CIRCUIT CONTINUED

The oral argument before a three-judge panel of

the Ninth Circuit occurred on February 10, 2017.

See, https://www.ca9.uscourts.gov/media/view

_video.php?pk_vid=0000010947

8. THE WESTERN DISTRICT OF

VIRGINIA RULES

On April 6, 2017, the Western District of

Virginia denied the Motion for Reconsideration,

denied the Motion to Amend, and refused to amend

the Final Order to show pre-November 2, 2012

claims were not dismissed with prejudice. See esp.,

App. pp. 178-179.

9. THE LITIGATION MOVES TO THE

FOURTH CIRCUIT

The Petitioners filed a timely Notice of Appeal

and Opening Brief of Appellants in the United

States Court of Appeals for the Fourth Circuit3. The

Petitioners asserted error below on:

1.

The issue of preemption;

2.

Making inconsistent rulings with

the MDL court;

3.

That Virginia law expressly held

consumer protection claims do not need

to be pled with particularity; and

3 The basis of federal jurisdiction in the court of first instance is

28 U.S.C. §1291.

29

4.

That the Virginia Lemon Law did

not require the notice and repair

attempts the District Court ruled were

required.

Pertinent to this Petition it was asserted the

Western District of Virginia had no jurisdiction over

the portions of Abdurahman and Abdul-Mumit that

were not remanded from the MDL, and that the

District Court erred in not allowing amendment of

the Complaints.

The Petitioners did not assign or argue error to

the singular reference to “Iqbal and Twombly”

because it did not appear that was the basis of the

lower court’s ruling, and even if it was, that issue is

moot if leave to amend is granted.

10. THE NINTH CIRCUIT PANEL RULES

On January 23, 2018, the Ninth Circuit Panel

reversed the Central District of California’s

certification of a nationwide settlement class in a 2-1

ruling. The Honorable Sandra S. Ikuta writing for

the majority held:

“In failing to apply California choice of

law rules, the district court committed a

legal error. A federal court sitting in

diversity must look to the forum state’s

choice of law ruling to determine the

controlling substantive law. (quoting

Zinser v. Accufix Research Inst., 253

F.3d 1180, 1187 (9th Cir. 2001)). The

district court made a further error by

failing to acknowledge, as it had in its

30

tentative ruling that Hyundai and the

Gentry plaintiffs submitted evidence

that the laws in various states were

materially different than those in

California, and that these variations in

state law defeated predominance under

Rule 23 (b)(3)……The district court’s

reasoning that the settlement context

relieved it of its obligation to undertake

a choice of law analysis and to ensure

that a class meets all of the prerequisites

of Rule 23, is wrong as a matter of law.

App. p. 127.

11. ORAL ARGUMENT THEN OCCURS IN THE

FOURTH CIRCUIT

At the Oral Argument before the Fourth Circuit

on May 9, 2018, Petitioners’ counsel argued to the

Panel that the Western District of Virginia’s Final

Order dismissed all the claims before it, including

the 809 pre-November 2, 2012 claims. Petitioners’

counsel acknowledged the written memorandum of

the Western District of Virginia stated it did not

purport to dismiss pre-November 2, 2012 claims, but

argued the law is that “a court speaks only through

its orders.” http://www.ca4.uscourts.gov/

OAarchive/mp3/17-1582-20180509.mp3. Petitioners’

counsel argued that failure to reverse the Western

District of Virginia’s dismissal of all the preNovember 2, 2012 claims would have an adverse

effect on the litigation in the Ninth Circuit. The

Fourth Circuit Panel acknowledged the concern and

31

stated it would ask Hyundai’s counsel about that

issue.

The Fourth Circuit Panel explicitly asked

Hyundai’s counsel:

“You’re not going to turn around in

California and say these claims are

dismissed?”

Hyundai’s counsel responded:

“We are not, and we have taken that

position in all our briefing as well.”

See, http://www.ca4.uscourts.gov/OAarchive/mp3/171582-20180509.mp3 at 15:30-16:00.

12. THE FOURTH CIRCUIT RULES

On July 13, 2018, the Fourth Circuit ruled that

the singular reference to “Iqbal and Twombly”

“constituted an independent basis for the order

below,” the Petitioners did not brief this issue, and

therefore the appellate court declined to consider

any other assertion of error other than the failure to

allow amendment of the Complaints. App. pp. 27-30.

The Fourth Circuit accepted Hyundai’s counsel’s

representation in open court and declined to address

the Western District of Virginia’s improper exercise

of jurisdiction in any manner. In affirming the

Western District of Virginia in dismissing the 809

un-remanded claims of Abdurahman and AbdulMumit, the Fourth Circuit improperly exercised

jurisdiction it did not have.

32

Contrary to the holdings of the Second, Third,

and Seventh Circuit as shown hereafter, the Fourth

Circuit held a plaintiff was not entitled to a ruling on

a 12(b)(6) motion to dismiss before losing the right to

amend. App. p. 32. The Fourth Circuit held that the

“inherent power to manage its docket” allows a

District Court to require amendments before the

final 12(b)(6) motion is filed, and before the Court

rules on the Motion to Dismiss. Id.

The Fourth Circuit criticized the Petitioners at

length for not fulfilling Hyundai’s “demands” “to

know who and how many plaintiffs are involved in

this case.” App. p. 35. The Fourth Circuit failed to

observe that the Petitioners identified the 489 postNovember 2, 2012, plaintiffs by name in their

“Plaintiffs’ Motion to Organize Plaintiffs Who

Obtained Elantras After November 2, 2012 For

Litigation Purposes Separately From Those Who

Obtained Elantras Prior to November 2, 2012” filed

on February 17, 2014.

13. THE NINTH CIRCUIT ORDERS A

REHEARING EN BANC

On July 27, 2018, the United States Court of

Appeals vacated the Panel Opinion and ordered an

En Banc Rehearing. App. p. 174.

The Oral Argument before the En Banc Ninth

Circuit occurred on September 27, 2018. Hyundai’s

counsel argued regarding the choice-of-law issue

that there was no reason to reverse the Central

District of California District Court on the basis that

Virginia consumers have better remedies. Hyundai’s

counsel, despite his earlier representations to the

33

Fourth Circuit, represented to the Ninth Circuit

that:

“All 1200 of these individual suits

were dismissed on the merits affirmed

by the Fourth Circuit. So, in fact,

when those claims were pursued they

did not have better remedies at all,

they got no remedy whatsoever.”

https://www.ca9.uscourts.gov/media/vi

ew_video.php?pk_vid=0000014273 at

48:15-48:55.

This demonstrates that the Fourth Circuit’s

error in not correcting the Western District of

Virginia’s dismissal of all 1,298 classes, 809 of which

are pre-November 2, 2012 claims, and in not

allowing the freely given right to amend the

remaining 489 post-November 2, 2012 cases, is being

used to improperly influence an En Banc proceeding

of the Ninth Circuit in a matter of national

importance.

II. THE FOURTH CIRCUIT’S EXERCISE OF

JURISDICTION OVER THE 809

PETITIONERS NOT REMANDED TO THE

WESTERN DISTRICT OF VIRGINIA

CONTRADICTS HOLDINGS FROM THE

JPML, THE FIFTH CIRCUIT, AND THE

EIGHTH CIRCUIT

In 1968 the JPML ruled that when cases are

transferred to an MDL under 28 U.S.C. §1407, the

transferor court has no jurisdiction to act until the

cases are properly remanded by the JPML. In Re

Plumbing Fixture Cases, 298 F.Supp. 484, 496

34

(JPML, 1968). (Citing Phebus v. Search, 264 F. 407

(8th Cir. 1920), holding “it is essential to the orderly

and effective administrations of justice that the

exclusive jurisdiction shall be at all times in either

the transferring or the receiving court, and that there

shall be no conflict of or divided jurisdiction.” 264 F.

409-410.) See also, Astarte Shipping Co. v. Allied

Steel, 767 F.2d 86, 87 (5th Cir. 1985) (“…when the

JPML orders a case transferred, the transferor

district court is deprived of jurisdiction until the case

is returned to it.”) See also, General Electric Co. v.

Byrne, 611 F.2d 670, 673 (1979) (“It is also true that

the entry of the transfer order deprives the transferor

court of jurisdiction until the case is returned to it, so

that any action of the transferor court after transfer

would be ineffective.”)

III. THE REFUSAL OF THE FOURTH

CIRCUIT TO CORRECT THE ERROR OF

THE WESTERN DISTRICT OF VIRGINIA

WAS USED TO IMPROPERLY

INFLUENCE THE NINTH CIRCUIT EN

BANC IN ITS CONSIDERATION OF

CHOICE OF LAW ISSUES

The Fourth Circuit’s ruling erroneously

affirming the dismissal with prejudice of AbdulMumit and Abdurahman was used in oral argument

to influence the En Banc Ninth Circuit in an

important ruling. Hyundai’s argument at the En

Banc Ninth Circuit oral argument, which its counsel

told the Fourth Circuit panel he would not make,

was that even though a nationwide settlement class

requires more scrutiny than a nationwide trial class,

the Ninth Circuit should dismiss the Virginians’

35

challenge to certification of a nationwide settlement

class because they do not have a claim, as the

Fourth Circuit ruled in these cases. The errors

of the Fourth Circuit do not only harm the 1,298

plaintiffs in Abdurahman, and Abdul-Mumit, but

these errors also hurt the 16,000+ Virginians in the

pre-November 2, 2012 class. The errors of the

Fourth Circuit were used to improperly influence the

Ninth Circuit as it decides issues in which there is

an overriding need for national uniformity. This

Court has jurisdiction to the correct errors of the

lower courts to protect Hyundai from having the

benefit of a judgment rendered without jurisdiction.

See, supra at Statement of Jurisdiction.

IV.

THE COURT SPEAKS THROUGH ITS

ORDERS ONLY

“Basic to the operation of the judicial system is

the principle that a court speaks through its

judgments and orders.” Bell v. Thompson, supra at p.

805. Quoting Murtaugh Volkswagen, Inc. v. First

National Bank of South Carolina, 741 F.2d 41, 44

(C.A. 4 1984). In Murtaugh the Fourth Circuit held:

“Courts must speak by orders and

judgments, not by opinions, whether

written or oral, or by chance

observations or expressed intentions

made by courts during, before or after

trial, or during argument. When the

terms of a judgment conflict with either

a written or oral opinion or observation,

the judgment must govern.”

36

In spite of the clear law of this Court and the

Fourth Circuit—that a court speaks only through its

orders—the Fourth Circuit refused to correct the

error of the District Court below in asserting

jurisdiction over, and dismissing with prejudice, the

809 claims that were not remanded from the MDL.4

V. WITHOUT THE BENEFIT OF A RULING

ON A MOTION TO DISMISS, A PLAINTIFF

CANNOT TEST IF THE COURT WILL

ACCEPT HIS OR HER LEGAL POSITION

In Loreley Financing No. 3 Ltd. V. Wells Fargo

Securities, LLC, 797 F.3d 160 (2d.Cir. 2015) a

district court held a “pre-motion conference” in which

the defendants’ anticipated Rule 12(b)(6) motion was

discussed. At the conference the district court

inquired whether the plaintiffs wished to amend in

light of this preview, stating it was not necessarily

the court’s practice “to give them another opportunity

later. The court indicated that it considered

Defendants’ pre-motion letter and the points raised at

the conference to provide ‘fair warning’ of Defendants’

arguments and the potential need for amendment.

Plaintiffs declined the court’s invitation to amend,

arguing that the complaint was legally sufficient.”

797 F.3d 169. The defendants moved to dismiss the

complaint for failure to state a claim under Rule

12(b)(6). After sustaining the motion to dismiss with

4 The Western District of Virginia Judge, the Honorable

Norman K. Moon, when on the Court of Appeals of Virginia,

wrote the Opinion in Walthall v. Commonwealth, 3 VA. App.

674, 679 (1987) holding “Furthermore, a court speaks only

through its orders.”

37

prejudice, the district court denied the motion to

amend.

The Second Circuit reversed, holding the district

court “presented Plaintiffs with a Hobson’s choice:

agree to cure deficiencies not yet fully briefed and

decided or forfeit the opportunity to replead. Without

the benefit of a ruling, many a plaintiff will not see

the necessity of amendment or be in a position to

weigh the practicality and possible means of erring

specific deficiencies.” 797 F.3d 190. The Second

Circuit held the procedure utilized there, similar to

the one at bar, was “premature and inconsistent with

the course of litigation prescribed by the Federal

Rules.” Id. Here, the Western District of Virginia

stated the Complaints would be “operative” if no

amendment was made, and never indicated there

would be no opportunity to amend as was done in

Loreley. When the Western District did this, the

“operative” motion to dismiss that was adjudicated

had not yet been filed.

The Third and Seventh Circuits agree with the

Second Circuit. In United States v. Customs Fraud

Investigations, 839 F.3d 242 (3rd. Cir. 2016) the

Third Circuit held “…the mere fact that a defendant

files a motion to dismiss is not necessarily sufficient

to put a plaintiff on notice that the court will find his

complaint to be deficient…in the context of a typical

Rule 12(b)(6) motion, a plaintiff is unlikely to know

whether his complaint is actually deficient—and in

need of revision—until after the District Court has

ruled.” (Holding district court abused discretion in

not allowing leave to amend after granting motion to

dismiss.)

Runnion ex rel. Runnion v. Girl Scouts of Greater

Chicago, 786 F.3d 510 (7th Cir. 2015) held “a plaintiff

38

who receives a Rule 12(b)(6) motion and who has

good reason to think the complaint is sufficient may

also choose to stand on the complaint and insist on a

decision without losing the benefit of the wellestablished liberal standard for amendment with

leave of court under Rule 15(a)(2)…A district court

does not have the discretion to remove the liberal

amendment standard by standing order or other

mechanisms requiring plaintiffs to propose

amendments before the court rules on a 12(b)(6)

motion on pain of forfeiture of the right to

amend.” 786 F.3d 523. (Emphasis added.)

If the 409 Petitioners were in the Second, Third,

or Seventh Circuit, they would be allowed to amend

their complaints curing the deficiencies observed by

the District Court and their cases would not be

dismissed with prejudice. This circuit split allowed

inconsistent rulings with the MDL court, and

improperly altered the En Banc Ninth Circuit’s

calculus on the choice-of-law issues pending before it

in a case of national importance. If this Honorable

Court does not correct this, it not only denies the

Petitioners of their day in court, skews the result in

the Ninth Circuit, but the improper procedure will

surely become a prolific practice.

VI. REASONS FOR GRANTING THE WRIT

By affirming errors of the Western District of

Virginia and exercising jurisdiction it did not have,

the United States Court of Appeals for the Fourth

Circuit has improperly affected proceedings in a

Multidistrict Litigation in the Ninth Circuit. As the

En Banc Ninth Circuit properly works to resolve the

issue regarding class certification for settlement

39

purposes only, (issues the En Banc Ninth Circuit has

found are of national application and require

uniformity,) the Western District of Virginia, as

affirmed by the Fourth Circuit, has improperly

affected the choice of law analysis by giving Hyundai

the opportunity to argue the Virginians “have no

remedy at all.” In doing so, the Fourth Circuit

exercised jurisdiction it does not have, ignored this

Court’s holding in Bell v. Thompson, and its own

precedent in Murtaugh Volkswagen v. First

National.

The Virginians’ long-fought effort to protect

federalism and to curb class action abuse by

certification of overbroad nationwide settlement

classes should not be improperly prejudiced as

shown here. The errors of the Fourth Circuit harm

class action litigation throughout the Nation. The En

Banc ruling of the Ninth Circuit is awaited by the

Nation’s class action bar. Guidance is needed

regarding the ability of a court to certify a

nationwide settlement class, which requires

“heightened” scrutiny of the 23(b)(3) predominance

requirement, after the court has already found

predominance was not met in the same case for a

nationwide trial class. The errors of the Fourth

Circuit in exercising jurisdiction over cases not

remanded by the MDL alters the calculus of the

Ninth Circuit on the choice-of-law issues before it.

The Fourth Circuit’s improper exercise of

jurisdiction, along with ignoring this Court’s ruling

in Bell v. Thompson, and the destruction of Rule

15(a)(2)’s mandate that “The court should freely give

leave when justice so requires” has caused

inconsistent rulings between the MDL Court and the

Western District of Virginia, defeating the purpose

40

of Congress in enacting 28 U.S.C. 1407, the

Multidistrict Litigation statute.

Under this Court’s Rule 10(a) the Fourth

Circuit’s ruling has “so far departed from the

accepted and usual course of judicial proceedings” by

exercising jurisdiction over 809 cases it has no

jurisdiction over, and in sanctioning the same error

by the Western District of Virginia, that it calls for

the exercise of this Court’s supervisory power given

the harmful effect on thousands of Virginians and

the improper effect it has on issues pending before

the En Banc Ninth Circuit. The Fourth Circuit’s

rulings on an important question of Federal law

regarding the liberal standard for amendment of

complaints, contradicts this Court’s holding in

Foman v. Davis, 371 U.S. 178, 182 (1962) that the

mandate of Rule 15(a)(2)— “leave to amend shall be

freely given when justice so requires”—must be

heeded. Finally, the Fourth Circuit has created a

circuit split with the Second, Third, and Seventh

Circuit holdings that “A district court does not have

the discretion to remove the liberal amendment

standard by…requiring plaintiffs to propose

amendments before the Court rules on a 12(b)(6)

motion on pain of forfeiture of the right to amend.”

Runnion v. Girl Scouts, supra, 786 F.3d 523.

41

CONCLUSION

The Petition for Writ of Certiorari should be

granted.

Respectfully Submitted:

Elwood Earl Sanders, Jr., Esq.

Counsel of Record

8357 Curnow Drive

Mechanicsville, Virginia 23111

(804) 644-0477

(804) 644-3336

eesjresquire@netscape.net

James B. Feinman

JAMES B. FEINMAN & ASSOCIATES

1003 Church Street, 2nd Floor

Post Office Box 697

Lynchburg, Virginia 24505

(434) 846-7603

(434) 846-0158 (fax)

jb@jfeinman.com

Counsel for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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