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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1123

## Text

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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
2

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? ;

il

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

iV
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

Vi

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 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

11

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).

© Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).
7 Friends of the Earth, 2000 U.S. LEXIS 501 at *11.

12

“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).

13

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).

14

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).

15

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).

16

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

17

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.

18

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).

19

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).

20

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.

21

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).

22

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.

23

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).

24

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.

25

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

26

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

27

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

© See Johnson v. City of Opelousas, 658 F.2d 1065, 1070 (5th
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”).

28

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)).

© Isbrandtsen Marine Services v. M/V Inagua Tania, 93 F.3d
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

29

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

la

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.

2a

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

3a

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

4a

cc: Robert Maland, Esq.
Elliot Messer, Esq.
Thomas Meeks, Esq.
Cynthia B. Schultz, Esq.
Charles P. Scheeler, Esq.

5a

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.

6a

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

7a

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.

8a

“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

9a

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,
V.

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).

Se

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0713%3A1. Public record. Not legal advice.