Petition for Writ of Certiorari — Labora v. MCI Telecommunications Corp.

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901 47 8 MAR - 6 200

No. OPES 06 MME CLERK

In The

Supreme Court of the United States

ALEXANDER f. LABORA,

putative class member on behalf of himself

and all others similarly situated,

Petitioner,

VS.

MCI TELECOMMUNICATIONS CORPORATION,

Respondent.

cd —

On Petition For Writ Of Certiorari To

The Circuit Court Of Appeals, Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Dorotny F. Eastey, Esq.

Counsel of Record

Catalonia Professional Plaza

216 Catalonia Avenue, Suite 107

Coral Gables, Florida 33134

Telephone: (305) 444-1599

and

Rosert C. MALAND, P.A.

Two Datran Center — Suite 1705

9130 South Dadeland Boulevard

Miami, Florida 33156

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

5% 9Fr

QUESTIONS PRESENTED

1. Are class-action lawsuits for improper billing

practices that are “picked off” by a defendant's partial,

unilateral refunds on one putative class representative's

telephone bill still controversies capable of repetition, yet

evading review?

2. Can a putative class-action lawsuit be dismissed

for mootness before the non-movant has had an oppor-

tunity to discover, present and incorporate opposing

material made pertinent by the dismissal motion? ;

TABLE OF CONTENTS

Page

OPINIONS GELOW «oo is. kcccusnses eee eee, 1

STATEMENT OF JURISDICTION............0-0200- 1

CONSTITUTIONAL PRRGPW eee 454 cee ee 1

STATEMENT OFF S866 © Alin s «ce ckehaeee eee ws Z

A. Proceedings Belew ....6css4c7asee eee 2

B. Facts... .c.04«s anna cuca seen eee nee 4

REASONS FOR GRANTING THE WRIT ..... ritess 9

I. THE ELEVENTH CIRCUIT COURT OF APPEALS

HAS IMPLICITLY DECIDED A FEDERAL QUES-

TION IN A WAY WHICH CONFLICTS WITH

APPLICABLE DECISIONS OF THIS COURT.... 9

A. Eleventh Circuit Precedent Which Approves

Dismissal of Potential Class-Action Lawsuits

by Burdening Plaintiffs with Establishing a

Case Is Not Moot, Without Reaching the

Issue of Standing, Conflicts with Friends of the

Earth v. LOGGED .....655i05 5550 eee ee 10

B. Eleventh Circuit Precedent Which Approves

| Dismissal of Potential Class-Action Lawsuits

Based on Orchestrated Mootness Before the

Non-Movant Has Had an Opportunity to Dis-

cover, Present and Incorporate Opposing Mate-

rial Pertinent to the Motion to Dismiss Conflicts

with Guaranty National Bank v. Roper and United

States Parole Comm'n v. Geraghty ......00..000-. 14

CONC LUGSIOING . .s.60:ii 0 ss cnln we eee ee 29

—

ili

TABLE OF AUTHORITIES

Page

Cases

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) .... 11

Ahmed v. University of Toledo, 822 F.2d 26 (6th Cir.

gg Ba Re Sr le tee ae ee rere ere 22

Allnet Communication Service, Inc. v. National

Exchange Carrier Ass'n, Inc., 965 F.2d 1118 (D.C.

IR MR ate te ba ce Ne ei a inet a 21

Bank v. Pitt, 928 F.2d 1108 (11th Cir. 1991) .......... 28

Barbara Z. v. Obrasdovich, 937 F. Supp. 710 (N.D.

TRA Deke hse ty ad ieee ya eee eee Pom 18

City of Mesquite v. Aladdin's Castle, 455 U.S. 283

Ne ce a te yi Wy et hs vaca waar KA aw GES 8 20

City of Peoria v. General Electric Cablevision Corp.,

ey OPO OE: BED ooo ewe Alene 20

Country of Los Angeles v. Davis, 440 U.S. 625 (1979) .... 20

County of Riverside v. McLaughlin, 500 U.S. 44

non a Vana sa eoo RW RIOR 24

Doe v. Marshall, 622 F.2d 118 (5th Cir. 1980), cert.

ee i, Pe CUED onc a ok cna Ceska ceeawevsee 18

Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981)............. 19

meee ©. caeee, Sie US. FB (196) « . «woes eee ciees 14

Passe ©. fees. 370 4).S. 376 (1962) . . 2... case sec cass 28

Foster v. Center Township, 798 F.2d 237 (7th Cir.

ee Fr and id iiak sk Goes aha eek Ree 25

Franks v. Bowman Transportation Co., 424 U.S. 747

ER Bis ENS ese gan a aed a ee 21

TABLE OF AUTHORITIES - Continued

Page

Friends of the Earth v. Laidlaw Environmental Ser-

vices, Inc., 2000 U.S. LEXIS 501 (Jan. 12, 2000)

EY Te Cer rer erst ee ee ro ree 9, 10, 11, 12, 13

Geraghty v. United States Parole Commission, 579

eee Be ee. ree 19, 22, 24, 25, 26

Gerstein v. Pugh, 420 U.S. 103 (1975) ......... 19, 22, 24

Grant v. George Schumann Tire & Battery Co., 908

oo Bo gti) Be | errr erretT reer rT 18

Griffith v. Bowen, 678 F. Supp. 942 (D. Ma. 1988) .... 23

Guaranty National Bank v. Roper, 445 U.S. 326

to , DAP gn Eat gay Cogn eo 9. en Rear EN ee ae ere passim

Hishon v. King & Spalding, 467 U.S. 69 (1984)........ 13

In the Matter of Theodore Allen Communications,

Inc., 12 FCC 6623, 1997 FCC LEXIS 2773 (May

eg Se eer ree Pere terry rr rs ere e 21

Isbrandtsen Marine Services v. M/V Inagua Tania, 93

eo ee Bit Bee | ere rere rere ey err ry ree 28

James Emory, Inc. v. Twiggs County, 883 F. Supp.

a a | Se ree re ror er ner 20

Jansen v. City of Cincinnati, 977 F.2d 238 (6th Cir. ©

a: SE PR CGNy bane Den Mamie: ar, PET EN Gy heey arg 23

Johnson v. City of Opelousas, 658 F.2d 1065 (5th Cir.

a) EEN ee a aera Parag gen cara SAP airy are Were a7

Johnson v. State, 586 F.2d 387 (5th Cir. 1978)......... 20

Kimbrough v. Arkansas Activities Assoc., 574 F.2d

423 (8th Cir. 1978), cert. den’d, 449 U.S. 1102

CPE Aas sh Wokia a Oia ew ead REE ee ee cea 18

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) .... 13

TABLE OF AUTHORITIES - Continued

Page

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ....11

Magnuson v. City of Hickory Hills, 933 F.2d 562 (7th

ce: PPPE) cs ccc n inc ck n eo eee ee ose eee ae ee 22

Majd-Pour v. Georgiana Community Hospital, Inc.,

74 P28 DOL (Ui Ce. AOE). conc scene edavewns 28

Mandalay Shores Cooperative Housing Ass'n, Inc., 87

De. TOG COED. FRR. BOWE ico on bees cde ee seganeaess 18

Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982),

cert. den’d, 460 U.S. 1069 (1983)................... 26

Morrison v. Ayoob, 627 F.2d 669 (3d Cir. 1980)....... 18

Murphy v. Hunt, 455 U.S. 478 (1982).............. 20, 21

National Communications Ass‘n, Inc. v. American Tel.

& Tel. Co., 46 F.dd 220 (2G Cit. 2999). 2. oc ncicacaci 20

Naturist Society, Inc. v. Fillyaw, 958 F.2d 1515 (11th

Coe SURED i xicdanacsncdcaveusenun ones eveeueeeere 20

Oldham v. Ehrlich, 517 F.2d 163 (8th Cir. 1980)....... 18

Perez-Funez v. District Director, INS, 611 F. Supp.

O90 aD. Sak, FOG sooo ase soci cease 27

Port v. Heard, 764 F.2d 423 (5th Cir. 1985)........... 20

Quintana v. Harris, 491 F. Supp. 1044 (D.N.M.

i ere rere Teer rry rrr re cre ror reer 27

Robinson v. Kimbrough, 652 F.2d 458 (5th Cir. 1981).... 18

Rocky v. King, 900 F.2d 864 (5th Cir. 1990)........... 22

Roe v. Wade, 410 U.S. 113 (1975) .. nnn cncasaacess 14, 19

Rosen v. T.R.W., Inc., 979 F.2d 191 (11th Cir. 1992) .... 28

Roper v. Consurve, Inc., 578 F.2d 1106 (Sth Cir.

if rer errererrrr rr ere re rer rs 16, 17, 24

TABLE OF AUTHORITIES - Continued

Page

Schoolcraft v. Sullivan, 971 F.2d 81 (8th Cir. 1992),

cert. den‘d sub. nom Shalala v. Schoolcraft, 510 U.S.

1001 C0000)... oss cuvcnceakessaos eee eee 20

Sosna v. lowa, 419 U.S. 393 (1975) ......0..0.0.0.... 19, 22

Southern Pacific Terminal Co. v. Interstate Commerce

Comm'n, 219 U.S. 498 (1911) ............0.......0.. 19

St. Paul Mercury Indemnity Co. v. Red Cab Co., 303

U.S. BBD (UGOG) a ocncccads eee s ele eee 16

Super Tire Engineering Co. v. McCorkle, 416 U.S. 115

Teg os asta ee 14

Susman v. Lincoln American Corp., 587 F.2d 866 (7th

Cir. 1978), cert. den’d, 445 U.S. 942 (1980) ..23, 24, 27

Swisher v. Brady, 438 U.S. 204 (1977) ............. 19, 22

The News-Journal Corp. v. Foxman, 939 F.2d 1499

(330i Cle. URED i csc tiga paw wade 20

United States Parole Comm'n v. Geraghty, 445 U.S.

SBS (19GG) .. 5 <ocncscces cues ceyenueenee eee 14, 25

United States v. Trans-Missouri Freight Assn., 166

U.S. 290 (8007) «oi scvaseccscnesandauneeeeeee 13

United States v. W.T. Grant Co., 345 U.S. 629 ’

(19DS) «os as0dcawank ene e aie een 12, 13, 20

United States v. Western Pacific R.R., 352 U.S. 59

(1936) 2. sa sna ds deat aie 0 ome wale ee 20

Weinstein v. Bradford, 423 U.S. 147 (1975)......... 20, 26

Westcott v. Califano, 460 F. Supp. 737 (D. Mass.

ADFB) «.. «0s nna un ene 0 So 6 ee ee ne ee 27

White v. Mathews, 559 F.2d 852 (2nd Cir.), cert.

den'd, 435 U.S. 906 (2978)... iss ce ca eee 23

Vii

TABLE OF AUTHORITIES - Continued

Page

Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980), cert.

GE, GO TS. TORE CI a in kkk ve vides whan eaves 18

Wilson v. Secretary of Health & Human Services, 671 -

ame re GOO SI es ee 6c 5b 5 ok he ek ead wake 23

~ Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030

Ge GR NS a BA dae duAcaveceuedets I9, 22, 23,24, 26

ConsTITUTIONS, STATUTES AND RULES

U.S. Constitution, Article III, Section 2............... 1

Federal Rule of Civil Procedure 59(a)............... 29

Federal Rule of Civil Procedure RRR Yah tener 29

Federal Rule of Civil Procedure 60(b)(2).............. 1

Se as Te EE CGA dao kaos ook ek oe eae ees 1

See Me Moss's srw ce ulna bad on bee wer oe

OF eA Te EE a eee ed snd ecnbeneveivesavere 2

Oe SA MG at cb ba ben wiakckes in aukeuex tes 2, 18

We ea es ees es ends sees cis 18

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TABLE OF APPENDICES

Appendix A - Opinion of the United States Court

of Appeals for the Eleventh Circuit, Dated and

aT BP Fj BATT as Kanna abd asad ke ede k as la

Appendix B — Order of the United States District

Court for the Southern District of Florida,

Dated and Filed July 16, 1998 Granting Motion

ee PP era errr over: Cer eee 3a

Appendix C - Order of the United States District

Court for the Southern District of Florida,

Dated and Filed July 20, 1998 Granting Motion

OE SE oa nk ou We bees Chane eee hha ties bene aes Sa

Appendix D - Order of the United States District

Court for the Southern District of Florida,

Dated and Filed October 19, 1998 Denying

Plaintiff's Motion for Rehearing, Denying Plain-

tiff’s Rule 60(b)(2) Motion for Relief from Order

of Dismissal and Denying Plaintiff’s Motion for

Leave to File Amended Complaint............... 12a

Appendix E - Plaintiff’s Response to Defendant’s

Motion for Stay and Memorandum in Support -

Thereof as Other Material Useful to the Court... 17a

OPINIONS BELOW

The unpublished opinion and judgment of the court

of appeals appear at Appendix (“App.”) A. The order of

the district court granting plaintiff’s motion for extension

of time appears at App. B. The order of the district court

granting the defendant’s motion to dismiss appears at

App. C. The order of the district court denying plaintiff's

motion for rehearing, denying plaintiff’s Rule 60(b)(2)

motion for relief from order of dismissal and denying

plaintiff’s motion for leave to file amended complaint

appears at App. D. Plaintiff's response to defendant’s

motion for stay and memorandum in support thereof

appears at App. E as other material useful to the court.

STATEMENT OF JURISDICTION

The court of appeals decided Petitioner’s case on

December 7, 1999, App. A. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION

Article III, section 2 of the Constitution provides that

the “Judicial Power shall extend” to enumerated “cases”

and “controversies.”

STATEMENT OF THE CASE

A. Proceedings Below

On May 13, 1998, Alexander Labora filed his class-

action complaint on behalf of himself and others similarly

situated. Pertinent here, Count I alleged a violation of 47

U.S.C. § 203 and § 364.08(1), Fla. Stat. (1998), for improper

billing practices, and sought damages, costs, interest and

attorneys’ fees under 47 U.S.C. § 206. R1-1-7. Petitioner

attached his April MCI telephone 1998 bill to his com-

plaint as evidence of MCI’s improper practices. R1-8-2,

16-17.

MCI’s Tallahassee and Maryland counsel asked for

more time to respond to the complaint. R1-4-1; R1-11-3.

Petitioner agreed to MCI’s request. R1-5-1; R1-6-1;

R1-11-3. The next day, on June 9, 1998, MCI issued to

Petitioner’s MCI account a unilateral credit for some, but

not all, of the charges on Petitioner’s April bill. Then,

MCI moved to dismiss Petitioner’s complaint for moot-

ness, arguing that MCI had refunded Petitioner in full for

his contested charges in his April bill. R1-8-1-8. MCI also

argued that its billing practices and unilateral refund

were proper, R1-8-1-8 & Attachments, and attached tariffs

and the affidavits of two MCI employees to show it.

R1-8-1-8 & Attachments.

MCI mailed its motion to dismiss on June 18, 1998.

R1-8-1-8. On June 19, 1998, Petitioner filed his motion for

class certification and propounded his class discovery as

soon as MCI’s South Florida counsel had been identified.

R1-11-3; R1-10-1-11. On July 2, 1998, MCI moved to stay

Petitioner’s class certification and motion to dismiss dis-

covery. R1-12-1; R1-13-1-7. Petitioner had propounded

discovery directed toward MCI tariffs at issue in this

case. R1-13-2-3. MCI opposed this discovery on the basis

that it was overly burdensome.!

Petitioner opposed dismissal because he had a con-

tinuing claim. R1-11-7. MCI had refunded two of the

three calls purportedly commencing at 9:32 a.m. on

March 31, 1998, leaving the cost of one of the remaining

calls on his April bill, un-refunded, plus interest on those

charges and attorneys’ fees. R1-11-6-7. Petitioner also

argued MCI had purposefully acted to extinguish this

class action controversy, and the issues were demonstra-

bly capable of repetition, yet evading review. R1-11-7-9.

MCI replied with yet more MCI tariffs, an MCI affidavit

from Kenneth Lange, a Bellcore LSSGR Manual, and

Local Exchange Carrier (“LEC”) computerized switch

records of Petitioner’s calls. R1-15-10 & Attachments.

On July 20, 1998, the district court granted MCI’s

motion to dismiss, three days after granting Petitioner’s

extension of time to respond by July 27, 1998 to MCI’s

motion for discovery stay. App. B, App. E. The district

court concluded that MCI had fully refunded Petitioner’s

alleged duplicate charges representing Petitioner’s total

potential damages. App. C at 7a, R1-19-1, 5. And it

denied all pending motions as moot, closing Petitioner’s

case. App. C at 10a, R1-19-5. On July 22, 1998, Petitioner

timely moved for rehearing and Rule 60(b)(2) relief from

the order of dismissal. App. D at 12a, R1-21-1. Petitioner

presented his June 22, 1998 bill as new evidence that,

1 The FCC and the Florida Public Service Commission

eagerly provided to Petitioner the two controlling MCI tariffs.

even during the pending motion to dismiss, MCI contin-

ued, in violation of its tariffs, unauthorized billing prac-

tices. App. D at 14a, R1-21-2; R1-25-1; R1-27-1-3.

Petitioner requested that the Court vacate its order of

dismissal to allow him to go forward with his pro-

pounded discovery. R1-21-3. On August 7, 1998, Peti-

tioner also filed a motion for leave to amend his

complaint to incorporate this new evidence in his June,

1998 telephone bill. MCI opposed Petitioner’s motion for

rehearing and Rule 60 motion and leave to amend, attach-

ing more affidavits and records - a second affidavit of

Kenneth Lange, additional copies of Petitioner’s LEC

switch records, and an affidavit of Theresa Lyles.

R1-23-1-5; R1-26-1.

From the district court’s order denying Petitioner’s

motion for rehearing, Rule 60(b)(2) motion, and motion

for leave to file amended class action complaint, and

denying all other motions, including class certification, as

moot, App. D at 15a, Petitioner timely appealed.

R1-28-1-4. The court of appeals affirmed per curiam after

oral argument the district court’s reasoning and factual

findings. App. A at la.

B. Facts

In suing MCI for a practice of improper billing under

MCI federal and Florida tariffs and for unjust enrichment,

Petitioner attached two pages of his April 22, 1998 MCI

bill reflecting double- and triple-billing tor non-talk, call-

attempts to his complaint:

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MCI attached to its dismissal moving papers various

exhibits and affidavits to argue that Petitioner’s April

account had been refunded in full, that MCI’s unilateral!

refund of Petitioner’s account was authorized under its

tariffs and that MCI’s billing practices were entirely

proper. R1-8-1-8 & Exhibits; R1-15-1-10 & Exhibits. To the

motion to dismiss, MCI also attached an affidavit from

Marjorie Daniels to show that Petitioner disputed (1) one

alleged duplicate call on 3/31/98 for $ 0.93, (2) an alleged

duplicate call on 4/3/98 for $ 0.49 and (3) tax of $ 0.10,

totaling $1.52, which Petitioner was credited on June 9,

1998. R1-8-16-17. To rebut the mootness argument, Peti-

tioner continued to dispute three duplicate calls on

March 31, 1998 and MCI’s credit, against his consent, as

well as a credit for only one of those three disputed calls,

without interest for the time that MCI had retained Peti-

tioner’s payment. R1-11-1, 2, 6. He further disputed that

MCI still retained and Petitioner was stilled owed money

for one of the three “triplicate” calls on March 31, 1998,

plus interest on that delayed refund. R1-11-6. And he

argued that his costs and attorneys’ fees remained out-

standing. R1-11-7.

MCI attached to its 12(b)(1) moving papers an FCC

tariff No. 1, 14th Revised Page Number 18.2.1, at 2, to

show that MCI could “round up” a customer’s charge to

the full charge of one full minute. R1-8-12. MCI also

attached a Florida Public Service Commission tariff,

(“F.P.S.C.”) Tariff Number 2, 14th Revised Sheet 23, to

show that Petitioner had “one-way” Execunet service.

R1-8-14. It attached FCC Tariff Number 1, 36th Revised

Page Number 13.1, R1-15-11, to show that MCI could

credit its customer’s accounts, in its discretion and

against the customer’s wishes. MCI attached the affidavit

of Kenneth Lange, who provided his interpretation of the

LATA System Switching Generic Requirements

(“LSSGR”) to show that Petitioner, not MCI, was at fault,

for not holding his telephone receiver down long enough

and, thereby, triggering a call-waiting or three-way call-

ing service that a computer was programmed to, there-

fore, bill. R1-15-16-51.2

MCI presented no document showing that Petitioner

had call-waiting or three-way calling service. Mr. Lange

did not explain how Petitioner could call the same per-

son, at the same number and speak with that same person

' simultaneously on three lines at the same time, or under

-which tariff MCI could bill its customers, irrespective of

the Local Exchange Carrier’s (“LEC’s”) computer logs,

for mere network usage time_or non-talk call attempts.

The district court granted MCI’s motion to dismiss,

and Petitioner presented, two days after his counsel

returned from a long-scheduled vacation, evidence of a

continuing MCI practice of billing for non-talk call-

attempts, and timely moved for relief from judgment and

leave to amend, which the district court denied:

2 MCI did not provide a manual explaining the switch

record codes.

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REASONS FOR GRANTING THE WRIT

I. THE ELEVENTH CIRCUIT COURT OF APPEALS

HAS IMPLICITLY DECIDED A FEDERAL QUES-

TION IN A WAY WHICH CONFLICTS WITH

APPLICABLE DECISIONS OF THIS COURT

In a long line of cases, of which Friends of the Earth v.

Laidlaw is the most recent, this Court has recognized that

the party asserting mootness carries the burden of estab-

lishing it. The controversy over MCI’s billing practices did

not die with partial refund of some disputed telephone

calls on one putative class representative’s telephone bill

for one month. And the Eleventh Circuit’s precedent

affirming otherwise conflicts with the Court’s long-

standing precedent on continuing “case or controversy.”

The decision below is also a timely opportunity for

this Court to make clear that orchestrated, technical

mootness in the form of forced tender is not enough

under Roper to moot a class-action complaint. Without

this Court’s guidance, putative class representatives like

Mr. Labora can be “picked off” before ever getting to a

pending class certification motion. It is not a question of

which motions will be decided on the merits in the area

/of consumer protection, but whether they will ever be

decided on the merits. Where the practice of improper

billing is not just possibly capable of repetition, yet evad-

ing review but does recur - in the putative class represen-

tative’s June, 1998 telephone bill - lower courts should

review the merits of the motion for class certification

before dismissing, to determine: (1) whether there

remains a live “case or controversy” between the defen-

dant and at least some members of the class the represen-

tative seeks to represent, and (2) whether the

representative would be a proper class representative.

Petitioner should have been granted leave to amend to

cure any mootness defects in his complaint, and the stay

on discovery made pertinent by MCI’s motion to dismiss

should have been lifted to allow discovery of opposing

material.

A. Eleventh Circuit Precedent Which Approves

Dismissal of Potential Class-Action Lawsuits by

Burdening Plaintiffs with Establishing a Case Is

Not Moot, Without Reaching the Issue of Stand-

ing, Conflicts with Friends of the Earth v.

Laidlaw.

The district court rulings and the court of appeals

affirmance of them here conflict with the decisions of this

Court, most recently the Friends of the Earth v. Laidlaw

Environmental Services, Inc.,*> reversing a summary judg-

ment dismissal for mootness, and reaffirming the strict

standard that a party moving to dismiss for mootness

bears.

Here, MCI moved to dismiss for mootness, R1-8-1-8,

after unilaterally crediting some, but not all, of Peti-

tioner’s disputed charges. At the same time, the district

court, on MCI’s motion for stay of Petitioner’s motion for

class-action certification and motion-to-dismiss discovery,

* Friends of the Earth v. Laidlaw Environmental Services, Inc.,

2000 U.S. LEXIS 501 at *8 Jan. 12, 2000) (citing United States v.

Concenirated Phosphate Export Ass'n, 393 U.S. 199, 203 (1968)).

ooo

dismissed Petitioner’s class action case as moot. The dis-

trict court would not consider Petitioner’s pending class-

action certification. R1-19-5. It did not afford Petitioner an

opportunity to amend any possible deficiencies in the

allegations of his class-action complaint to cure mootness.

It would not allow Petitioner discovery into the issues

raised in MCI’s motion to dismiss. And it would not

allow Petitioner to amend his complaint to incorporate

new evidence now made pertinent by MCI’s motion to

dismiss.

Friends of the Earth,4 explained that:

the standard for determining whether a case has

been mooted by the defendant’s voluntary con-

duct is stringent: A case might become moot if

subsequent events make it absolutely clear that

the allegedly wrongful behavior could not rea-

sonably be expected to recur.

This Court has made clear that, while mootness, like

the related doctrine of standing, restricts the judicial

power of Article III courts to decide only actual cases and

controversies that can be redressed by a lawsuit,° cases or

controversies are considered “actual” when they are “def-

inite and concrete, touching the legal relations of parties

having adverse legal interests.”°

Accordingly, under Friends of the Earth,” it was

error to affirm dismissal below on MCI’s reasoning that

4 Friends of the Earth, 2000 U.S. LEXIS 501 at *8.

> Friends of the Earth, 2000 U.S. LEXIS 501 at *10; Lujan v.

Defenders of Wildlife, 504 U.S. 555 (1992).

7 Friends of the Earth, 2000 U.S. LEXIS 501 at *11.

“Plaintiff... failed to establish” his claims were not moot.

R1-15-4 (emphasis added), App. C at 8a. The decisions

below conflict with this Court’s decisions holding that it

is the party arguing mootness that carries the “heavy”

burden of proving “it absolutely clear that the allgedly

wrongful behavior could not reasonably be expected to

recur.”® MCI never did that.

The decisions below never applied that analysis.

Properly applied under this Court’s decisions, the partial

refund here on one telephone bill could not moot a con-

troversy over an allegedly improper billing dispute

where the precise wrong at issue was not one charge on

one incorrect telephone bill, but a practice of billing cus-

tomers for non-talk, call-attempts in violation of control-

ling tariffs. é

SECTION 3 —- DESCRIPTION OF SERVICE

3.1 TIMING OF CALLS

Billing for calls begins at the time MCI’s frequency

monitoring device detects that the called party

has answered, and ends when the frequency mon-

itoring detects that either the called party or

calling party hangs up.

F.P.S.C. Tariff No. 2, 8th Revised Sheet 20 (emphasis

added). Likewise, the FCC Tariff nowhere authorized

MCI to bill its customers, irrespective of what its LEC

8 Friends of the Earth, 2000 U.S. LEXIS 501 at *11; United

States v. W. T. Grant Co., 345 U.S. 629, 633-636 (1953).

computers were programmed to log, for mere network

usage. “[T]he rate period at the time the connection is

established applies to the entire call.” Tariff F.C.C. No. 1,

102nd Revised Page No. 18.2 (emphasis added).

Additionally, the decisions below conflict with the

voluntary cessation theory this Court reaffirmed in

Friends of the Earth.? The moving party’s mere voluntary

cessation of an allegedly illegal or improper practice does

not moot a case. “[I]f it did, the courts would be com-

pelled to leave ‘[the] defendant .. . free to return to his

old ways.’ “10

The allegation of a practice of improper billing of call

attempts that MCI continually asserted it was entitled to

bill stated a live controversy.!1 MCI never presented a

tariff authorizing it to engage in this specific billing practice

— to bill for two calls to the same number, at the same

time. And an MCI refund on one telephone bill could not

moot an MCI practice applied to all potential MCI class

members. Beyond the allegations of an improper billing

practice, Petitioner’s case stated a live controversy by

virtue of his only-partial refund (and, therefore, only-

partial extinction of this controversy) on one of Peti-

tioner’s telephone bills.1

9 Friends of the Earth, 2000 U.S. LEXIS 501 at *41.

10 W. T. Grant Co., 345 U.S. at 632; see, e.g., United States v.

Trans-Missouri Freight Assn., 166 U.S. 290 (1897).

11 Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

12 Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78

(1990).

B. Eleventh Circuit Precedent Which Approves

Dismissal of Potential Class-Action Lawsuits

Based on Orchestrated Mootness Before the

Non-Movant Has Had an Opportunity to Dis-

cover, Present and Incorporate Opposing Mate-

rial Pertinent to the Motion to Dismiss Conflicts

with Guaranty National Bank v. Roper and

United States Parole Comm'n v. Geraghty.

The court of appeal’s affirmance of the district court

implicitly accepted MCI’s position below that parties

with adverse legal interests that orchestrate technical

mootness properly strip a federal court of jurisdiction to

decide important issues, because those issues are not still

“capable of repetition, yet evading review”. This conflicts

with this Court’s precedent to the contrary.!*

In Guaranty National Bank v. Roper,'4+ credit card

holders brought a class action challenging, not even a

practice, but specific finance charges levied on their cards

and those of similarly situated card holders. After the

district court denied their motion for class certification on

its merits, the bank tendered to each named plaintiff the

maximum amount he would have recovered had he suc-

ceeded on the merits. The amounts tendered also included

legal interest and court costs. The named plaintiffs refused

the tender, but made a counteroffer of judgment in which

they attempted to reserve the right to appeal the adverse

13 Compare Evitts v. Lucey, 469 U.S. 387, 391 (1985); Super

Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974); Roe v. Wade,

410 U.S. 113 (1973); W.T. Grant Co., 345 U.S. at 633.

14 Guaranty National Bank v. Roper, 445 U.S. 326, 339 (1979).

class certification ruling. The bank rejected their counter-

offer.15

Based on the bank’s offer, the district court entered

judgment in their favor, over their objection, and dis-

missed the action as moot. Following dismissal, the plain-

tiffs appealed the trial court’s previous order denying

their motion to certify the class. The bank argued that the

entire case had been mooted by their offer, but the court

of appeals held that the case was not mooted by the

forced tender. Id.

This Court agreed, and stated that an “appeal may be

permitted from an adverse ruling collateral to the judg-

ment on the merits at the behest of the party who has

prevailed on the merits, so long as that party retains a

stake in the appeal satisfying the requirements of Article

III.”16 In this Court’s view, the plaintiffs retained such a

stake in the appeal because, even after full tender of their

individual damages, plaintiffs “had a desire to shift part of

the costs of litigation to ihose who will share in its benefits if

the class is certified and ultimately prevails.”!”7 The Court

stressed that “at no time did the named plaintiffs accept

the tender in settlement of the case; instead, judgment

was entered in their favor by the court without their

consent and the case was dismissed over their continued

objections.” 18

1S Id.

16 Roper, 445 U.S. at 334.

17 Id. (emphasis added).

18 Id. at 332 (footnote omitted).

Roper is important here because, first, it is clear from

its language that it never intended to suggest that corpo-

rations can “pick off” class-action plaintiffs by involun-

tarily crediting their accounts, as each one comes forward

with their consumer protection claim, under the guise of

forced “customer credits”. MCI never disputed that Peti-

tioner’s refund was involuntary; MCI unabashedly cited

one of its authorizing tariffs to force this unilateral refund

upon Petitioner, with the clear purpose of mooting his

claim and snuffing out a class-action lawsuit.

Moreover, of the three duplicate charges on March

31, 1998, where MCI, against Petitioner’s consent, issued

a credit for only one of those charges, two remained

unpaid, none with interest for the time MCI had retained

Petitioner's payment for those calls. R1-11-1, 2, 6. MCI

still retained and Petitioner was still owed money for at

least one, if not two, of the contested “triplicate” calls,

plus interest on those delayed refunds, irrespective of

how large or how small that amount was.

Third, Roper recognized, and the lower courts here

should have followed, that putative class-action plaintiffs

— even after full tender of their individual damages -

retain a stake in a case if their “costs of litigation to those

who will share in its benefits if the class is certified and

ultimately prevails” remain outstanding.!? This Court

affirmed the Fifth Circuit’s decision, Roper v. Consurve,

19 Roper, 445 U.S. at 334 (emphasis added); see St. Paul

Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-90 (1938)

(“events occurring subsequent to the institution of the suit

which reduce the amount recoverable below the statutory limit

do not oust jurisdiction”).

ET La Nene

Inc.,2° on the named plaintiffs’ assertion of a cognizable

economic interest in the certification question rooted in

their “desire to shift to successful class litigants a portion

of those fees and expenses incurred in [the] litigation,”

and this concern “supplied the personal stake in the

appeal required by Article III.”21 This was so even though

the majority of this Court conceded and the dissent

explicitly underscored that the named plaintiffs’ allega-

tions of an interest in shifting to successful class litigants

a portion of their attorneys’ fees and expenses turned on

a contingent attorneys’ fee; the fee was to be paid from

the named plaintiffs’ recovery, and no suggestion was

made that the plaintiffs could recover this amount from

successful class litigants.?2

Finally, under the Court’s Roper decision, Petitioner’s

attorneys’ fees, while not solely resuscitating an other-

wise moot claim, indeed kept a raging controversy over

the billing practice itself, in combination with the remain-

ing amounts to be adjudicated and the un-refunded

charge, outstanding interest and costs. R1-11-7. Roper’s

holding is consistent with § 206’s fee provision as well as

other fee statutes. Section 206 says that a common carrier

“shall be liable . . . for the full amount of damages

sustained . . . together with a reasonable counsel or

attorney’s fee, to be fixed by the court in every case of

recovery, which attorney’s fee shall be taxed and col-

lected as part of the costs of the case.”. It nowhere men-

tions “prevailing party” status, otherwise requiring a

20 Roper v. Consurve, Inc., 578 F.2d 1106 (5th Cir. 1978).

21 Roper, 445 U.S. at 334 n.6 and 337 n.9.

22 Id. at 338 n.9, 350-51.

judgment on the merits, as a condition precedent to an

award of fees.23

There is no reason under Roper and the language of

§ 203 that these fees should not, in addition to the out-

standing controversy over the disputed improper billing

practice, survive mootness.24 As long as one damage

claim of an individual named plaintiff suing on a federal

question remained unresolved and MCI continued to

23 In contrast, 42 U.S.C. §& 1988 (1988), a provision

concerning the award of attorney's fees in civil rights cases,

references fee awards to a “prevailing party.” Among the

circuits, claims for fees still survived mootness. See Williams v.

Altoto, 625 F.2d 845, 848 (9th Cir. 1980) (“Claims for attorneys’

fees ancillary to the case survive independently . . . and may be

heard even though the underlying case has become moot.”),

cert. den’d, 450 U.S. 1012 (1981); Robinson v. Kimbrough, 652 F.2d

458 (5th Cir. 1981) (fees should be awarded on remand if

compliance resulted from the lawsuit); Doe v. Marshall, 622 F.2d

118 (5th Cir. 1980) (preliminary injunction allowing plaintiff to

play high school sports became moot before appeal decided;

tees awarded), cert. den'd, 451 U.S. 993 (1981); Kimbrough v.

Arkansas Activities Assoc., 574 F.2d 423 (8th Cir. 1978) (same);

Morrison v. Ayoob, 627 F.2d 669, 671 (3d Cir. 1980) (fees awarded

where challenged practice abandoned after suit filed but before

trial, mooting case), cert. den'd, 449 U.S. 1102 (1981); Oldham v.

Ehrlich, 617 F.2d 163, 168 (8th Cir. 1980) (challenged regulation

was amended before trial; fees awarded because it was

“virtually certain [the old regulation] would have been held

invalid”); Barbara Z. v. Obrasdovich, 937 F. Supp. 710, 718 (N.D.

Ill. 1996).

*4 See also Grant v. George Schumann Tire & Battery Co., 908

F.2d 874 (11th Cir. 1990) (award of interest on delayed refund is

proper); Mandalay Shores Cooperative Housing Ass'n, Inc., 87 B.R.

184 (M.D. Fla. 1988) (plaintiff entitled to recovery of interest on

delayed refund under principles of equity).

maintain its practices were proper, the “controversy” con-

tinued and Petitioner retained a sufficient interest in the

action to be a class representative in a federal court.» At

best, therefore, MCI’s partial refund created a sham or

technical mootness that did not moot this class-action

lawsuit.2¢

Courts, under circumstances like these, allow the suit

under these circumstances to go forward as a class action,

and certification “relates back” to the filing of the com-

plaint or the class certification “relates back” to the .

request for certification.?”

The issues raised in the allegations of improper bill-

ing practices were also not moot because they were

demonstrably “capable of repetition, yet evading

review.”28 The decisions below conflict with the over-

whelming precedent that an issue giving rise to an injury

is “capable of repetition, yet evading review” when (1)

there is a “reasonable expectation or a demonstrated

probability that the same controversy will recur involving

25 Ellis v. Blum, 643 F.2d 68, 85 (2d Cir. 1981) (“The Supreme

Court, noting the ‘flexible character’ of the mootness doctrine,

has recognized that vigorous advocacy can be assured through

means other than the traditional requirement of a ‘personal

stake in the outcome.’ ” (quoting United States Parole Comm'n v.

Geraghty, 445 U.S. 388 (1980)).

26 See Roper, 445 U.S. at 339.

27 See, e.g., Geraghty, 445 U.S. at 404-05; Gerstein v. Pugh, 420

U.S. 103 (1975); Swisher v. Brady, 438 U.S. 204 (1977); Sosna v.

lowa, 419 U.S. 393, 403 n.11 (1975); Zeidman v. J]. Ray McDermott

& Co., 651 F.2d 1030, 1048 (5th Cir. 1981).

28 See Roe v. Wade, 410 U.S. at 125; Southern Pacific Terminal

Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911).

the same complaining party,” and (2) the “challenged

action was in its duration too short to be fully litigated

prior to its cessation or expiration.”?? Only “if ‘subsequent

events made it absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur” could

the case be moot.*° Here, MCI argued precisely the oppo-

site — its billing practices were just fine. Petitioner’s sec-

ond, June bill showed, however, that the alleged improper

MCI double- and triple-billing for call attempts was

demonstrably recurring.*! At a minimum, therefore, Peti-

tioner and all other MCI customers similarly situated were

entitled to discovery into the class and into these issues -

not a dismissal of Petitioner’s entire class-action lawsuit.°?

29 The News-Journal Corp. v. Foxman, 939 F.2d 1499, 1507

(11th Cir. 1991) (quoting Murphy v. Hunt, 455 U.S. 478, 482-83

(1982) (per curiam)); see County of Los Angeles v. Davis, 440 U.S.

625 (1979); see City of Mesquite v. Aladdin's Castle, 455 U.S. 283,

289 (1982); Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per

curiam); see also Naturist Society, Inc. v. Fillyaw, 958 F.2d 1515,

1520 (11th Cir. 1992) (superseding statute or regulation moots

case only to extent it removes challenged features of prior law);

Port v. Heard, 764 F.2d 423, 427 (5th Cir. 1985) (“the fine, as a

direct consequence of the contempt convictions, preserves the

Ports’ stake in the merits of the appeal they bring before us,

despite their release from custody.”); see also James Emory, Inc. v.

Twiggs County, 883 F. Supp. 1546 (M.D. Ga. 1995) (cessation of

wrongful conduct not create mootness). Johnson v. State, 586 F.2d

387 (5th Cir. 1978) (changed policy or voluntary cessation must

satisfy all deficiencies of prior wrong).

30 W. T. Grant .Co., 345 U.S. at 633-636.

31 Schoolcraft v. Sullivan, 971 F.2d 81 (8th Cir. 1992), cert.

den’d sub. nom, Shalala v. Schoolcraft, 510 U.S. 1081 (1994).

2 United States v. Western Pacific R.R., 352 U.S. 59, 63-65

(1956); City of Peoria v. General Electric Cablevision Corp., 690 F.2d

116, 120-21 (7th Cir. 1982); National Communications Ass‘n, Inc. v.

The lower court decisions also conflict with the pre-

cedent finding these issues evade review. On May 13,

1998, Petitioner filed his class action lawsuit. On June 8,

1998, MCI requested and Petitioner agreed to an enlarge-

ment of time to respond to the complaint, so that MCI

could find local counsel in Miami. R1-5-1-2, R1-6-1. On

June 9, 1998, MCI issued a unilateral credit for some, but

not all, of the disputed charges on Petitioner’s April bill —

just nine days before filing its June 18th motion to dis-

miss on the basis of mootness. R1-8-16-17. By virtue of

these credits, the “challenged action was . © . too short to

be fully litigated prior to its cessation or expiration.”

MCI’s monthly billing continued to subject Petitioner -

each month - to a controversy over MCI’s alleged

improper billing practice. MCI admitted Petitioner had a

history of disputing his MCI charges. R1-8-9. On June 19,

1998, Alexander Labor moved to be certified to proceed

as a class action. R1-10-1. The district court granted MCI’s

motion to stay class certification and discovery, never

deciding the merits of the motion.

Class actions offer an added exception to the usual

mootness doctrines.*+ Where a !ive dispute remains as to

at least certain class members, even though the named

American Tel. & Tel. Co., 46 F.3d 220, 222-23 (2d Cir. 1995); Allnet

Communication Service, Inc. v. National Exchange Carrier Ass'n,

Inc., 965 F.2d 1118 (D.C. Cir. 1992); see, e.g., In the Matter of

Theodore Allen Communications, Inc., 12 FCC 6623, 1997 FCC

LEXIS 2773 (May 22, 1997) (any ambiguity in tariffs should be

construed against framer and favorably for users).

33 Murphy, 455 U.S. at 482.

4 See Franks v. Bowman Transportation Co., 424 U.S. 747,

753-755 (1976).

plaintiff’s individual claim has become moot, the class

action is not moot.*> As for class actions in which the

named plaintiff's claim becomes moot before full adjudi-

cation of the substantive issues, courts allow the suit to

go forward as a class action when (1) the class has been

certified prior to the mooting of the plaintiff’s claims, or

(2) the class certification “relates back” to the filing of the

complaint or (3) the class certification “relates back” to

the request for certification.*° Adhering to this “relation

back” doctrine, courts allow a named plaintiff whose

individual claims have expired to continue to represent

the class in the situation in which his claims are transi-

tory and capable of recurring with respect to him.*” Class

certification should relate back if (1) the named plaintiff's

claim has expired as a result of the transitory nature of

the claim; (2) the defendant has purposefully mooted the

claim; or (3) some other action has occurred between the

filing of the suit and certification which unreasonably

impairs the plaintiff's right to seek judicial review. The

decisions below should have recognized that here.*8

First, there is no question that MCI purposefully

mooted some, or all, of the claims, as MCI boldly asserted

S See, e.g., Sosna v. lowa, 419 U.S. 393 (1975).

%© See, e.g., Geraghty, 445 U.S. at 404-05; Gerstein v. Pugh, 420

U.S. at 103; Brady, 438 U.S. at 204; Sosma, 419 U.S. at 403 n.11.

See, e.g., Magnuson v. City of Hickory Hills, 933 F.2d 562,

565 (7th Cir. 1991); Rocky v. King, 900 F.2d 864, 869-71 (5th Cir.

1990); Ahmed v. University of Toledo, 822 F.2d 26 (6th Cir. 1987).

8 See, e.g., Zeidman v. ]. Ray McDermott & Co., 651 F.2d at

1045-51.

its right to do so under its tariffs.39 MCI’s distinction

below that these other plaintiffs’ claims were not moot

because these other plaintiffs rejected the offers tendered

to them, while Petitioner accepted MCI’s tenders, was

disingenuous and has been specifically rejected by the

courts.# A settlement or acceptance of a tendered settle-

ment is like “[a] consent decree which, although in effect

a final judgment, is a contract founded on the agreement

of the parties. . . . It should be construed to preserve the

position for which the parties bargained. .. . “41 A puta-

tive class defendant cannot snatch away jurisdiction and

extinguish a motion for class certification through non-

consensual refunds any more than the U.S. district court

in Roper could dismiss for mootness a case forced to settle

through judicial fiat.42

As the Seventh Circuit explained, “[j]ust as necessity

required the development of the relation back doctrine in

cases where the underlying factual situation naturally

39 As will be set forth below, MCI may have had the right to

issue a refund. But the power to refund was not the same as the

power to moot a case and evade federal jurisdiction.

4° Susman v. Lincoln American Corp., 587 F.2d 866, 870 (7th

Cir. 1978), cert. den’d, 445 U.S. 942 (1980); see also White v.

Mathews, 559 F.2d 852, 857 (2nd Cir.), cert. den’d, 435 U.S. 908

(1978) see, e.g., generally, Wilson v. Secretary of Health & Human

Services, 671 F.2d 673, 679 (1st Cir. 1982); Zeidman v. J. Ray

McDermott & Co. Inc., 651 F.2d at 1030.

41 Jansen v. City of Cincinnati, 977 F.2d 238, 241 (6th Cir.

1992) (quoting Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th

Cir. 1992).

42 See, e.g., Griffith v. Bowen, 678 F. Supp. 942 (D. Ma. 1988)

(this rule overrode mootness even where defendant’s payments

accepted and class certification not yet filed).

changes so rapidly that the courts cannot keep up, so

necessity compels a similar result where defendants ten-

der full amount of recovery to individual plaintiffs while

the motion for certification is still pending.”4% Accord-

ingly, Zeidman v. J. Ray McDermott & Co.,44 explicitly held

that a suit brought as a class action should not be dis-

missed for mootness upon tender to the named plaintiffs

of their personal claims when a diligently pursued

motion for class certification was pending before the dis-

trict court.4° The district court in Zeidman originally

refused to certify a Rule 23 class because of lack of evi-

dence as to numerosity, while the district court here

stayed Petitioner’s class certification motion and discov-

ery altogether and never looked at the potential class.

Following the concerns in Roper, district courts that do

not take an opportunity to review the merits of the

motion for class certification before dismissal in those

cases in which it is financially feasible to pay off succes-

sive named plaintiffs afford corporate defendants the

option to preclude a viable class action from ever reaching

the certification stage.*

43 Susman, 587 F.2d at 870; see also Zeidman, 651 F.2d at 1050

(noting that tender to successive named plaintiffs by a wealthy

defendant could, as a practical matter, make a decision on class

certification just as difficult to produce as it was in Gerstein).

44 Zeidman v. J]. Ray McDermott & Co., 651 F.2d at 1045-51.

45 Id. at 1051. Accord Susman v. Lincoln American Corp., 587

F.2d at 866.

46 County of Riverside v. McLaughlin, 500 U.S. 44, 52 (199%);

Roper, 445 U.S. at 340; Geraghty, 445 U.S. at 404.

Here, the district court should, at a minimum,

address the certification question after the partial moot-

ing of Petitioner’s claim to determine: (1) whether there

remained a live “case or controversy” between MCI and

at least some members of the class Petitioner sought to

represent, and (2) whether Petitioner remained a proper

class representative.4?7 This Court made this clear in

United States Parole Commission v. Geraghty.48 Geraghty, a

federal prisoner at the time, brought a proposed class

action challenging parole guidelines. Here, Mr. Labora,

an MCI customer, brought a proposed class action chal-

lenging MCI’s improper billing practices under its tariffs.

That district court denied certification and granted sum-

mary judgment for those defendants. The district court

here stayed certification and discovery, altogether, and

granted MCI’s motion to dismiss. While the appeal was

pending, Geraghty was mandatorily released and the

defendants sought to dismiss the appeal as moot. While

Petitioner’s complaint was pending, MCI unilaterally

refunded some of the disputed charges on one of Peti-

tioner’s bills and moved to dismiss as moot.

The Third Circuit in Geraghty ruled that the case was

not moot, since class certification had been denied erro-

neously.*? This Court affirmed, stressing that the dispute

still existed in a form capable of judicial resolution, that

47 See, e.g., Foster v. Center Township, 798 F.2d 237, 245 (7th

Cir. 1986).

4 United States Parole Comm'n v. Geraghty, 445 U.S. 388

(1980).

49 See Geraghty v. United States Parole Commission, 579 F.2d

238 (3d Cir. 1978).

anne Teme te

is, in a truly adversarial relationship.*° The Court analo-

gized Geraghty’s situation to cases “capable of repetition,

yet evading review,”°! even though Geraghty faced no

“likelihood” of becoming involved in the same contro-

versy in the future.>? Petitioner, on the other hand, was

demonstrably subject to the same controversy - in his

April and then his June MCI telephone bills.

The decisions below failed to recognize that this

Court looked beyond the mootness of Geraghty’s sub-

stantive claims and focused instead on his wholly sepa-

rate “procedural . . . right to represent a class.”>> As the

Court explained,*4 “[a] plaintiff who brings a class action

presents two separate issues for judicial resolution. One

is the claim on the merits; the other is the claim that he is

entitled to represent a class.” Even after the plaintiff has

no personal, substantive stake in the resolution of the

merits of an action, he — or she - retains a procedural

stake in the outcome of the certification motion sufficient

to survive a motion to dismiss on grounds of mootness.°°

When continuation of an action is threatened because the

representative plaintiff’s claim is moot, certification of

50 Id. at 403; see Zeidman, 651 F.2d at 1047-48; cf. Milonas v.

Williams, 691 F.2d 931, 938 (10th Cir. 1982), cert. den’d, 460 U.S.

1069 (1983).

5! See, e.g., Weinstein v. Bradford, 423 U.S. at 149; Roe v. Wade,

410 U.S. at 123-24.

52 Geraghty, 445 U.S. at 398 & n.6.

53 Id. at 402.

“ Geraghty, 445 U.S. at 402.

55 Geraghty, 445 U.S. at 404.

ne ee ee

the class is vital.5¢ If a named plaintiff, as the Court held

in Geraghty, has a sufficient stake in the outcome of a

class certification motion to appeal its denial, then Peti-

tioner certainly has the necessary legal interest to press

his claim for certification in the district court.57

Finally, Petitioner had been improperly billed, yet

again, during the pendency of MCI’s motion to dismiss

for duplicate or non-talk calls. These decisions below,

affirming denial of leave to amend to further allege a

continuing “case or controversy,” conflicts with Rule

15(a). This Court made clear that Rule 15(a) allows a

party at least one chance to correct defects in their com-

plaint when justice requires it:

In the absence of any apparent or declared rea-

son — such as undue delay, bad faith or dilatory

Cir. 1981) (risk of mootness of representative's claims sufficient

to create need for certification); Perez-Funez v. District Director,

INS, 611 F. Supp. 990, 1000 (C.D. Cal. 1984) (without

certification, possible that merits will not be heard); Westcott v.

Califano, 460 F. Supp. 737, 746 (D. Mass. 1978) (certification

protects members from risk of mootness of representative

plaintiff’s claim in Rule 23(b)(2) class).

57 See Sussman v. Lincoln American Corp., 587 F.2d at 880

(“ ... when a motion for class certification has been pursued

with reasonable diligence and is pending before the district

court, a case does not become moot merely because of the tender

to the named plaintiffs of money damages.”); Quintana v. Harris,

491 F. Supp. 1044, 1045 (D. N.M. 1980) (where plaintiff's

individual claim becomes moot before motion for class

certification is acted upon, case is not moot); see also Geraghty,

445 U.S. at 387 (” . .. timing is not crucial”).

motive on the part of the movant, repeated fail-

ure to cure deficiencies by amendments previ-

ously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment,

futility of amendment, etc. - the leave sought

should be ‘freely given.’%8

Failure to grant leave to amend for a jurisdictional defect

is an abuse of discretion. If a complaint’s allegations are

insufficient to prove subject matter jurisdiction — here,

capable of repetition, yet evading review - the proper

course is to dismiss the original complaint with leave to

amend to cure a failure to allege jurisdiction properly.%?

Petitioner never got that chance, though he had new

evidence that showed this improper billing practice was

capable of repetition, yet evading review. It was an abuse

of discretion to deny Petitioner that one chance to defeat

mootness and swiftly establish the district court's juris-

diction.”

This error was underscored by the district court's

denial of Petitioner’s motion for rehearing and selief from

judgment based on new evidence ~ that Petitioner had

been double- and triple-billed improperly, yet again, in

June, 1998. R1-21-1-4. MCI, as it had on the motion to

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

54? Majd-Pour v. Georgiana Community Hospital, Inc., 724 F.2d

901, 903 n.1 (11th Cir. 1984) (citing Miller v. Stanmore, 636 F.2d

986, 990 (5th Cir. 1981)).

728, 734 (11th Cir. 1996) (amendment to correct mootness due to

sale of vessel should have been allowed); Rosen v. TRW, Inc., 979

F.2d 191 (11th Cir. 1992); Bank v. Pitt, 928 F.2d 1108, 1112 (11th

Cir. 1991).

a Pel

dismiss, also opposed that motion on the basis that MCI

had engaged in no improper billing practice, that this

evidence was not discovered with due diligence and

would not have changed the outcome. R1-22-1-14. There

was nothing dilatory about the time of presenting this

new evidence. Petitioner’s counsel had been on a prepaid

25th wedding anniversary vacation from June 25 (before

that MCI bill would have been received in the mail)

through July 17, 1998. R1-25-1. And the new evidence was

filed with the District Court just five days after counsel’s

return. R1-21-3. That was hardly dilatory under Rule

59(a), Rule 59(e) or Rule 60(b)(2).

CONCLUSION

FOR THESE REASONS, Petitioner, ALEXANDER

LABORA, prays that this Court grant a Writ of Certiorari

to review the decision of the Eleventh Circuit Court of

Appeal.

Respectfully submitted,

Dorotuy F. Eastey, Esq.

Counsel of Record

Catalonia Professional Plaza

216 Catalonia Avenue, Suite 107

Coral Gables, Florida 33134

Telephone: (305) 444-1599

Facsimile: (305) 444-7223

and

Rosert C. MALAND P.A.

Two Datran Center - Suite 1705

9130 South Dadeland Boulevard

Miami, Florida 33156

APPENDIX A

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-5678

D. C. Docket No. 98-1073-CIV-SH

ALEXANDER J. LABORA, on behalf of himself

and others similarly situated,

Plaintiff-Appellant,

versus

MCI TELECOMMUNICATIONS CORPORATION,

a non-Florida corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Florida

(December 7, 1999)

Before EDMONDSON and BARKETT, Circuit Judges, and

COHILL"*, Senior District Judge.

PER CURIAM:

* Honorable Maurice B. Cohill, Jr., Senior United States

District judge for the Western District of Pennsylvania, sitting

by designation.

AFFIRMED. See Eleventh Circuit Rule 36-1.

“Costs taxed against the plaintiff-appellant.”

Entered: December 7, 1999

For the Court: Thomas K. Kahn, Clerk

By: /s/ Matt Davidson

Deputy Clerk

ISSUED AS MANDATE: JAN 20 2000

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 98-1073-CIV-HIGHSMITH

ALEXANDER J. LABORA,

Plaintiff,

vs.

MCI TELECOMMUNICATIONS CORPORATION,

Defendant.

ORDER GRANTING MOTION FOR

EXTENSION OF TIME

(Filed Jul. 16, 1998)

THIS CAUSE comes before the Court upon Plaintiff’s

Motion for Extension of Time, filed July 14, 1998. Upon

due consideration, it is hereby

ORDERED AND ADJUDGED that said motion is

GRANTED. The plaintiff shall have until and including

July 27, 1998, to file his response to Defendant’s Motion

to Stay. It is further

ORDERED AND ADJUDGED that all further submis-

sions to this Court SHALL comply with the local rules,

including Rule 7.1.A.

DONE AND ORDERED in Chambers at Miami, Flor-

ida, this 16th day of July, 1998.

/s/ Shelby Highsmith

SHELBY HIGHSMITH

UNITED STATES DISTRICT JUDGE

cc: Robert Maland, Esq.

Elliot Messer, Esq.

Thomas Meeks, Esq.

Cynthia B. Schultz, Esq.

Charles P. Scheeler, Esq.

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 98-1073-CIV-HIGHSMITH

ALEXANDER J. LABORA,

Plaintiff,

Vs.

MCI TELECOMMUNICATIONS CORPORATION,

Defendant. |

ORDER GRANTING MOTION TO DISMISS

(Filed Jul. 20, 1998)

THIS CAUSE comes before the Court upon Defen-

dant’s Motion to Dismiss, filed June 18, 1998. For the

reasons set forth below, the motion to dismiss will be

granted.

PROCEDURAL BACKGROUND

On May 13, 1998, Plaintiff Alexander J. Labora

(“Labora”) filed a two-count class action complaint

against Defendant MCI Telecommunications Corporation

(“MCI”), alleging improper and duplicative billing prac-

tices. Upon receipt of the complaint, MCI apparently

refunded to Labora the total alleged duplicate charges -

$1.52. Currently, MCI moves to dismiss the complaint as

moot.

STANDARD OF REVIEW

“Under Article III of the Constitution, it is a jurisdic-

tional prerequisite that plaintiffs present an actual ‘case

or controversy.’ ” American-Arab Antidiscrimination Comm.

v. Thornburgh, 970 F.2d 501, 506 (9th Cir. 1991). A “district

court may review any evidence submitted on the issue to

determine if subject matter jurisdiction in fact exists.”

Western Trans. Co. v. Couzens Warehouse & Distributors,

Inc., 695 F.2d 1033,- 1038 (7th Cir. 1982). “[T]he party

alleging jurisdiction must support its allegation with

competent proof of jurisdictional facts.” Id.

Moreover, this Court is not bound to accept as true

the allegations of the complaint which tend to establish

jurisdiction where a party properly raises a factual ques-

tion concerning its jurisdiction to proceed with the action.

See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884,

891 (3rd Cir. 1977). Instead, the Court may properly look

beyond the jurisdictional allegations of the complaint and

view whatever evidence has been submitted on the issue

to determine whether in fact subject matter jurisdiction

exists. Id.; Western Trans., 695 F.2d at 1038. Accordingly,

this Court may review the affidavits submitted with

MCI’s motion, and accompanying documentation, which

establish that Labora’s claims are moot.

FACTUAL BACKGROUND

Labora has been an MCI customer, receiving residen-

tial service since February 11, 1995. Affidavit of Carol

Morales, { 2. Since that time he has apparently contacted

MCI’s customer service on occasions where he believed

he ought to be issued credits and has, in fact, received

such credits from MCI. Id.

On or about April 22, 1998, Labora received his tele-

Phone bill from MCI for the period March 22, 1998,

through April 21, 1998 (“the April bill”). Complaint, { 15.

As noted above, on that bill, Labora was charged for

three calls to Hollywood, Florida, all Originating on

March 31, 1998, at 9:32 a.m. Complaint, Exh. “A”. The

April bill also reflected two calls to Mexico City, Mexico,

both originating on April 3, 1998, at 4:07. Id.

Labora did not contact MCI’s customer service center

to inquire about these calls. Morales Aff., | 4. Instead,

Labora filed the instant class action complaint, alleging

that the charges were improper and in violation of the

Communications Act of 1934 and Section 364.08(1) of the

Florida Statutes. Complaint, { 34. MCI contends that the

total alleged duplicative charges of which Labora com-

plains is, at most, $1.52.1 Although it contends that the

charges were properly billed, rather than incur substan-

tial legal expenses, MCI elected to credit Labora’s account

the full amount of the disputed charges. Daniels Aff., { 3.

DISCUSSION

The doctrine of mootness has its source in the case or

controversy limitations in Article III of the Constitution.

Dallas Gay Alliance, Inc. v. Dallas County Hosp. Dist., 719 F.

Supp. 1380, 1384 (N.D. Tex. 1989). Article III requires that

1 The $1.52 is as follows: 93¢ for the alleged 3/31/98

duplicate call, 49¢ for the alleged 4/3/98 duplicate call, plus 10¢

tax. Affidavit of Majorie A. Daniels, | 2.

“a plaintiff must make out a case or controversy between

himself and the defendant; that is, the plaintiff must

allege a distinct and palpable injury to himself such as to

warrant his invocation of federal-court jurisdiction.” Nat'l

Wildlife Fed. v. Dept. of Interior, 616 F. Supp. 889, 889

(D.D.C. 1984) (internal citations omitted); see also Miler v.

FCC, 66 F.3d 1140, 1145-46 (11th Cir. 1995), cert. denied sub

nom Nat'l Ass'n of Broadcasters v. Miller, 517 U.S. 1155

(1996). Thus, “[mJoot cases lie beyond the judicial power

because the case or controversy ceases to exist once the

matter has been resolved.” Id.; see also Deposit Guaranty

Nat'l Bank v. Roper, 445 U.S. 326, 335 (1980) (“the defini-

tive mootness of a case or controversy . . . ousts the

jurisdiction of the federal courts and requires dismissal of

the case”); Holstein v. City of Chicago, 29 F.3d 1145, 1147

(7th Cir. 1994) (“[o]rdinarily, simply determining a plain-

tiff’s case is moot dictates that his claim must be dis-

missed for lack of subject matter jurisdiction”); Lusardi v.

Xerox Corp., 975 F.2d 964, 974 (3rd Cir. 1992) (“no justicia-

ble controversy is presented . . . when the question

sought to be adjudicated has been mooted by subsequent

developments”).

“A case becomes moot when the dispute between the

parties no longer rages, or when one of the parties loses

his personal interest in the outcome of the suit.” Holstein,

29 F.3d at 1147. Thus, a case will be subject to dismissal

on grounds of mootness when a defendant satisfies the

plaintiff’s demand for relief. Id. (holding that plaintiff’s

claim was moot because the city offered “all damages due

to him”); Lusardi, 975 F.2d at 974 (“[s]lettlement of a

plaintiff’s claims moots an action”); Rand v. Monsanto Co.,

926 F.2d 596, 597 (7th Cir. 1991) (“[o]nce the defendant

offers to satisfy the plaintiff’s entire demand, there is no

dispute over which to litigate, and a plaintiff who refuses

to acknowledge this loses outright, under Fed.R.Civ.P.

12(b)(1), because he has no remaining stake”).

Article III limitations imposed by the mootness doc-

trine necessarily apply to class actions. Dallas Gay Alli-

ance, 719 F. Supp. at 1384. “A putative class representative

who alleges no individual injury may not seek relief on

behalf of himself or any other member of the class.” Id.

As explained in Lusardi, “when claims of the named

plaintiffs become moot before class certification, dis-

missal of the action is required.” Lusardi, 975 F.2d at 974.

The Eleventh Circuit has stated:

In a class action, the claim of the named plain-

tiff, who seeks to represent the class, must be

live both at the time he brings the suit and when

the district court determines whether to certify

the putative class. If the plaintiff’s claim is not

live, the court lacks a justiciable controversy and

must dismiss the claim as moot.

Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th Cir. 1987).

Stated another way, a plaintiff cannot represent a

class of which he is not a member. Bailey v. Patterson, 369

U.S. 31, 31-32 (1962). If the claim of the class action

plaintiff is moot, the action must be dismissed under

Fed.R.Civ.P. 12(b)(1).

In the instant case, there is no actual, ongoing contro-

versy. It is undisputed that MCI issued a credit to Labora

in the amount of $1.52, which represents Labora’s total

potential damages in this case. Daniels Aff, | 3. This

credit mooted Labora’s own cause of action and renders

10a

him ineligible to represent the putative class. Because the

only named plaintiff in this suit has no case or contro-

versy, this case must be dismissed for lack of subject

matter jurisdiction.

Moreover, Labora’s request for costs and interest

does not create a case or controversy. As explained in

Bank of Marin v. England, 385 U.S. 99, 111 n.1 (1966)

(Fortas, J., dissenting), “[aJn unbroken line of cases estab-

lishes the rule that controversy as to costs alone does not

salvage an otherwise moot case.” Similarly, Labora’s

claim for attorney’s fees also fails to save this case from

dismissal. The Supreme Court has held that an “interest

in attorney’s fees is, of course, insufficient to create an

Article III case or controversy where none exists on the

merits of the underlying claim.” Lewis v. Continental Bank

Corp., 494 U.S. 472, 480 (1990).

Accordingly, because MCI has credited Labora’s

account in the full amount of the charges at issue,

Labora’s claim is moot and the Complaint must be dis-

missed with prejudice. See Simmer v. Rios, 661 F.2d 655,

660 (7th Cir. 1981); Holstein, 803 F. Supp. at 210.

CONCLUSION

For the foregoing reasons, it is hereby

ORDERED AND ADJUDGED that Defendant’s

Motion to Dismiss, filed June 18, 1998, GRANTED. This

case is DISMISSED. All pending motions are DENIED as

moot, and this case is CLOSED.

lla

DONE AND ORDERED in Chambers at Miami, Flor-

ida, this 20th day of July, 1998.

/s/ Shelby Highsmith

SHELBY HIGHSMITH

UNITED STATES DISTRICT JUDGE

cc: Robert Maland, Esq.

Thomas Meeks, Esq.

Cynthia B. Schultz, Esq.

Charles P. Scheeler, Esq.

12a

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case no. 98-1073-CIV-HIGHSMITH

ALEXANDER J. LABORA,

Plaintiff,

MCI TELECOMMUNICATIONS

CORPORATION,

Defendant.

ORDER DENYING PLAINTIFF’S MOTION FOR

REHEARING, DENYING PLAINTIFF’S RULE 60(b)(2)

MOTION FOR RELIEF FROM ORDER OF

DISMISSAL AND DENYING PLAINTIFF’S MOTION

FOR LEAVE TO FILE AMENDED COMPLAINT

(Filed Oct. 19, 1998)

THIS CAUSE is before this Court on Plaintiff’s

Motion for Rehearing, Plaintiff’s Rule 60(b)(2) Motion for

Relief from Order of Dismissal, and Plaintiff’s Motion for

Leave to File Amended Complaint.

Under Rule 60(b)(2), a party may obtain relief from a

final judgment on the basis of “newly discovered evi-

dence which by due diligence could not have been dis-

covered in time to move for a new trial under Rule 59(b).”

Fed.R.Civ.P. 60(b)(2). The Eleventh Circuit has adopted

the five-part test used in many jurisdictions to determine

—

13a

whether “newly discovered” evidence warrants vacating

a judgment:

(1) the evidence must be newly discovered since

the judgment; (2) due diligence on the part of

the movant to discover the new evidence must

be shown; (3) the evidence must not be merely

cumulative or impeaching; (4) the evidence

must be material; and (5) the evidence must be

such that a new trial would probably produce a

new result.

Scutiert v. Paige, 808 F.2d 785, 793 (11th Cir. 1987).

A motion to vacate a judgment under Rule 60(b)(2) is

an extraordinary motion and the requirements of the rule

must be strictly met. Id.; Ag Pro. Inc. v. Skraida, 512 F.2d

141, 143 (5th Cir. 1975). The movant bears the burden of

demonstrating that the requirements have been satisfied.

Stilwell v. Travelers Insurance Company, 327 F.2d 931 (5th

Cir. 1964). If any one of the five elements is not satisfied,

the motion fails. Raymond v. Raymond Corp., 938 F.2d 1518,

1527 (1st Cir. 1991). For the purpose of evaluating a Rule

60(b) motion, the court takes as true the movant’s factual

assertions. Kerwit Med. Products v. N & H Instruments, 616

F.2d 833, 836 (5th Cir. 1980); United States v. Cirami, 563

F.2d 26, 28 (2d Cir. 1977).

A. Plaintiff Has Failed to Establish That The Evidence

is “Newly Discovered” Within The Meaning of

Rule 60(b)(2).

Any evidence that was in the plaintiff’s possession

prior to the judgment cannot be considered “newly dis-

covered” within the meaning of Rule 60(b)(2). Johnson

l4a

Waste Materials v. Marshall, 611 F.2d 593, 597 (5th Cir.

1980). Some courts impose the additional requirement

that the evidence must have come into existence prior to

the judgment or while the matter was under advisement.

See NLRB v. Jacob E. Decker & Sons, 569 F.2d 357, 364 (5th

Cir. 1978); Davis by Davis v. Jellico Community Hosp. Inc.,

912 F.2d 129, 136 (6th Cir. 1990).

Plaintiff’s alleged newly discovered evidence is a

phone bill dated June 22, 1998.! Defendant indicates in a

sworn affidavit that all phone bills are mailed first class

on the statement date. See Defendant’s Opposition to

Plaintiff’s Motion for Rehearing and Rule 60(b)(2) Motion

for Relief from Order of Dismissal, Exhibit 2. Even if the

mailing time is taken into account, it is readily apparent

that Plaintiff had possession of the evidence for almost

one moth prior to the Court’s entry of judgment on July

20, 1998. Accordingly, the June 22, 1998 telephone bill

cannot constitute newly discovered evidence.

1 Plaintiff also argues that he has alleged additional tariff

violations in an amended complaint which constitute newly

discovered evidence. This argument hardly warrants

discussion. Plaintiff does not cite any case law holding that new

allegations contained in an amended complaint constitute

newly discovered evidence warranting relief under Rule

60(b)(2). Allegations are not evidence and cannot serve as the

basis for setting aside a judgment.

2 Plaintiff’s counsel indicates that the “newly discovered-

evidence” was not brought to the Court’s attention prior to the

entry of judgment because he was on vacation during the period

of June 25, 1998 through July 17, 1998. The fact that Plaintiff’s

counsel was on vacation is irrelevant to the inquiry. As

discussed supra, the requirements of Rule 60(b)(2) must be

strictly met. E.g. Stilwell v. Travelers Insurance Co., 327 F.2d at

15a

B. Plaintiff Has Not Demonstrated That The Newly

Discovered Evidence Would Likely Produce a New

Outcome.

A district court may weigh the credibility of new

evidence in ruling on a Rule 60(b)(2) motion. E.g. Daniels

v. Pipefitters’ Ass'n Local Union No. 597, 983 F.2d 800 (7th

Cir. 1993). A contrary rule would result in the setting

aside of a judgment every time a party presented new

evidence, no matter how incredible that evidence was. Id.

Plaintiff's newly discovered evidence consists of a

June 22, 1998 phone bill which allegedly contains charges

for calls which did not connect. Defendant has submitted

affidavits indicating that the alleged questionable charges

on the June 22, 1998 statement were for phone calls that

connected and lasted one minute. See Defendant’s Oppo-

sition to Plaintiff's Motion for Rehearing and Rule

60(b)(2) Motion for Relief from Order of Dismissal,

Exhibit 1. Therefore, this Court concludes that the Plain-

tiff’s “newly discovered” evidence would not, in all like-

lihood, produce a new outcome.

For the foregoing reasons, it is

ORDERED and ADJUDGED that Plaintiff’s Motion

for Rehearing and Plaintiff's Rule 60(b)(2) Motion for

Relief from Order of Dismissal are DENIED.

It is further ORDERED that Plaintiff’s Motion for

Leave to File Amended Complaint is DENIED.

931. Plaintiff possessed the evidence prior to the entry of final

judgment, therefore, it is not newly discovered evidence.

l6a

DONE AND ORDERED in Chambers at Miami, Flor-

ida this 19th day of October, 1998.

/s/ Shelby Highsmith

SHELBY HIGHSMITH

UNITED STATES

DISTRICT JUDGE

cc: Robert Maland

Alexander Labora

Thomas Meeks

17a

APPENDIX E

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 98-1073-CIV-Highsmith

U.S. Magistrate Judge Bandstra

ALEXANDER J. LABORA,

Plaintiff,

VS.

MCI TELECOMMUNICATIONS

CORPORATION,

Defendant.

PLAINTIFF’S RESPONSE TO

DEFENDANT’S MOTION FOR STAY AND

MEMORANDUM IN SUPPORT THEREOF .

Plaintiff has filed a two (2) Count Complaint as a

proposed class action seeking redress for the Defendant's

improper practice of duplicate and triplicate billing for

telephone calls.

The Defendant has filed a Motion to Dismiss. It is the

Plaintiff's position that the Complaint properly states

claims for relief and a pleading deficiency, if any, found

in the complaint may be corrected by amendment.

Additionally, among other things, within his

response to Defendant MCI’s Motion to Dismiss, Plaintiff

relies upon the “similar occurrences” exception to the

mootness doctrine. (Plaintiff’s Response Memo p. 12) and

notes that authority exists from the Defendant to be

required to identify potential class members at this time,

18a

under the circumstances now presented in this case.

(Plaintiff’s Response Memo p. 14, footnote 4).

The Plaintiff has served an initial set of Interrogato-

ries, a Request for Production and a Request for Admis-

sion on the Defendant! focused primarily on the issues

which arise under Rule 23(a) in the class certification

process, as well as the issues raised within the motion to

dismiss. In response, the Defendant has filed the instant

Motion to Stay.

Since Plaintiff’s initial discovery properly focuses on

class certification issues and issues raised with the Defen-

dant’s Motion to Dismiss, there is no reason to impose

discovery limitations at this point. It is appropriate for

the Plaintiff to conduct limited discovery to gather evi-

dence in support of his motion for class certification and

in opposition to the motion to dismiss. The Plaintiff has

not gone beyond proper and reasonable discovery at this

point in the proceedings. Moreover, there is no reason to

delay discovery pending a decision on the Motion to

Dismiss. To the contrary, Plaintiff will be prejudiced in his

ability to defend against the Motion to Dismiss and in

otherwise proceeding herein if the present limited and

reasonable discovery is not allowed.

In addressing the issue before this Honorable Court,

both the Fifth and Eleventh Circuits have determined that

the Plaintiff is entitled to leeway in conducting discovery

1 These are attached as Exhibits 1, 2, and 3 to Defendant's

Motion for Stay and are not attached hereto for sake of brevity.

? Plaintiff intends to file a motion to compel, if the initial

discovery is not timely responded to by Defendant.

19a

which is necessary to define the parameters and scope of

the proposed class.

In Pitman v. E.I. duPont de Nemours & Co., Inc., 552

F.2d 149, 150 (5th Cir. 1977) the Court stated, in pertinent

part:

Of course, a certain amount of discovery is

essential in order to determine the class action

issues and the proper scope of a class action.

The Plaintiff is entitled to some leeway in

attempting to define the proper parameters of

his proposed class.

Consistent with the foregoing general principles, the

Eleventh Circuit stated in Washington v. Brown & Wil-

liamson Tobacco Corp., 959 F.2d 1566, 1570-71 (1992) that:

in the class action context, one of first issues

confronting the court is class certification. See

Fed. R.Civ.P. 23(c)(1) (“As soon as practicable

after the commencement of the action brought

as a class action, the court shall determine by

order whether it is to be so maintained”). To

make early class determination practicable and

to best serve the ends of fairness and efficacy,

courts may allow classwide discovery on the

certification issue and postpone discovery on

the merits.

Since the Plaintiff herein has not exceeded the rea-

sonable bounds of discovery, at this point, it is premature

and unnecessary to consider discovery limitations. Nev-

ertheless, even if this Court were to consider some form

of discovery limitations, Plaintiff should not be prevented

from conducting discovery reasonably related to any of

the class certification issues and motion to dismiss issues.

20a

In the present case, the Plaintiff has propounded a set

of interrogatories, a request for production and a request

for admission to the Defendant focused upon the prereq-

uisites to a class action under Rule 23(a) Fed.R.Civ.P.,

which are:

“(1) is the class is so numerous that joinder of all

members is impracticable (i.e. numerosity);

(2) are these questions of law or fact common to

the class (i.e. commonality);

(3) are the claims or defenses of the representa-

tive parties typical of the claims or defenses of

the class (i.e. typicality), and

(4) will the representative parties will fairly and

adequately protect the interests of the class.

Upon review, it can readily be seen that Plaintiff’s

preliminary discovery propounded herein reasonably

relates to the class certification and motion to dismiss

issues and therefore, it would be both premature and

unnecessary to impose any discovery limitations at this

time.

CONCLUSION

Rule 23(c)(1) dictates that as soon as practical, the

Court should determine if this matter will proceed as a

class action. Responses from the Defendant to the Plain-

tiff’s pending discovery reasonably relate to the issues

pertinent to class certification.

A Plaintiff should be allowed a reasonable amount of

leeway in obtaining discovery necessary or helpful to

evaluating the various class certification issues found

within Rule 23(a).

2la

Our Plaintiff's initial discovery is proper and is pri-

marily focused on obtaining information necessary in

defining the proper parameters and scope of the pro-

posed class and in opposing the issues raised in the

Motion to Dismiss.

Accordingly, the Defendant’s Motion to Stay should

be denied with regard to the presently propounded dis-

covery.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of

the foregoing was served by U.S. mail on this 22 day of

July, 1998 on: Thomas Meeks, Esquire, Zuckerman,

Spaeder, Taylor & Evans, LLP, Miami Center, Ste. 900, 201

So. Biscayne Boulevard, Miami, FL 33131-4326.

ROBERT C. MALAND, P.A.

Counsel for Plaintiff

Two Datran Center - Ste. 1705

9130 S. Dadeland Blvd.

Miami, FL 33156

(305) 670-4900

By: /s/ Robert C. Maland

ROBERT C. MALAND, ESQ.

FLA. BAR NO. 208051

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.