Petition for Writ of Certiorari — Alim Adburahman, et al., Petitioners v. Hyundai Motor America, Inc., et al.
Supreme Court briefOct 11, 2018
Ask Donna
What actually matters in this document.
Text
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.