Monthly Archives March 2013

When we first discussed Standard Fire Insurance Co. v. Knowles, No. 11-1450, 568 U.S. -- (Mar. 19, 2013), we noted that a ruling in favor of Defendants could mean an end to the traditional rule that a plaintiff is the “Master” of his or her own complaint, by foisting upon a party imputed damages that may have not been alleged in the case for strategic reasons.   And while the Court recognized that an individual plaintiff may avoid litigating in federal court by stipulating to an amount in controversy below the federal jurisdiction requirement, the Court unanimously held  that the same is not true for a plaintiff seeking to represent a proposed class: "Our reason is a simple one: Stipulations must be binding…. [a] plaintiff who files a proposed class action, cannot legally bind members of the proposed class before the class is certified." Slip op. at 4.   Even though this…

Having grown up near Ann Arbor, and later attending college at the University of Michigan, I have no doubt probably ordered pizza delivery from Domino's dozens of times (the corporate headquarters is located at the beautiful Domino's Farms complex).  One thing I started to notice as a poor college student was the $1 "Delivery Fee" tacked on to each order.  I assumed that this surcharge was an automatic tip for the delivery drivers, and used it to rationalize my lack of generosity.  (I have since learned the error of my ways, and that these fees are not tips.) My naivety regarding the purposes of the delivery surcharge, however, is apparently not uncommon.  The Eighth Circuit recently decertified a statewide class of Minnesota pizza delivery drivers based on a lack of commonality under Dukes, based on the different information customers received regarding whether a delivery fee constituted a "tip."  Luiken v.…

The recent order in Burkeen v. New Madrid Ambulance Dist., 2013 WL 880079 (E.D. Mo., March 8, 2013) is relatively unremarkable (the defendant didn't really contest preliminary certification), but potentially useful in how it addresses some mechanical aspects of FLSA notice. In this putative FLSA action brought on behalf of EMTs seeking overtime pay, the defendant challenged the scope of employee information it was required to hand over to class counsel, the facilitation of class notice, and the contents of class notice. Judge Limbaugh ruled that: The defendant must hand over putative class members' names, addresses, phone numbers and e mail addresses (useful for contacting employees who have moved), and dates of employment, but not their locations of employment; The defendant must post class notice in break rooms, but need not include class notice in pay stubs (because other forms of contact were adequate); Class notice need not include a…

Being a fan of Les Miz, I was pleasantly surprised by Sacha Baron Cohen's performance of the great musical number "Master of the House" in the recent film adaptation.  It's probably my second favorite version after Lawrence Tierney's memorable rendition in the classic Seinfeld episode "The Jacket."  Now, the Supreme Court will soon decide which party, for purposes of removal will be considered the Master of the House, or rather the Complaint, for purposes of CAFA removal. In Standard Fire Insurance Co. v. Knowles, the Court will hear its first case under the  Class Action Fairness Act ("CAFA"), the 2005 statute which conferred original federal jurisdiction to any class action where minimal diversity existed at the amount-in-controversy exceeds $5 million.  At issue in Knowles is whether the named plaintiff, as a putative class representative, can stave off a defendant's right to remove under CAFA by filing any accompanying “stipulation” that…

In City of Maryland Heights v. Trafcone Wireless, Inc., 2013 WL 791866 (E.D. Mo., March 4, 2013), Judge Fleissig declined to exercise CAFA jurisdiction over a case in which a putative class of Missouri municipalities sought declaratory and injunctive relief against a telephone service provider based on its alleged failure to pay certain business licensing taxes. Without reaching the issue of whether the requirements of CAFA removal had been met, the District Court relied on principles of federalism and comity identified in Levin v. Commerce Energy, Inc., 130 S. Ct. 2323, 2331 (2010), to decline to exercise jurisdiction. In Levin, the United States Supreme Court had resolved a circuit split to determine that principles of federalism and comity required federal abstention in certain tax cases beyond the Tax Injunction Act, 28 U.S.C. Section 1341, which prohibits federal courts from issuing injunctions that would enjoin or suspend state taxes, or entertaining…

In Critchfield Physical Therapy, P.C., v. Techhealth, Inc., 2013 WL 791860 (E.D. Mo., March 4, 2013), Judge Fleissig split the difference in this class discovery dispute. Plaintiffs in this putative TCPA class action had moved to compel both the production of full, unredacted lists of fax recipients (including names, addresses, and contact information) in their native format, as well as mirror images of the Defendant's hard drives. The District Court ordered production of the unredacted fax recipient lists subject to a mutually agreeable protective order, reasoning that this information was not only relevant to the merits issue of whether a prior business relationship existed, but also to the class issue of whether all class members were similarly situated with the plaintiff with respect to this defense (i.e., presumably typicality and predominance). And though the District Court declined to order the Defendant to produce a mirror of its hard drives at…

In Grant v. Convergys Corp., 2013 WL 781898 (E.D. Mo., March 1, 2013), Judge Jackson declined to enforce a class action waiver contained in an employment application because it eliminated the employees' right to engage in collective and class litigation, which is protected concerted activity under Section 7 of the NLRA. In this case, the plaintiff sought to prosecute an FLSA collective action and a MMWL claim under Fed. R. Civ. P. 23. The Defendant moved to strike the class allegations based on the following language contained in the putative class representative's employment application: I further agree that I will pursue any claim or lawsuit relating to my employment with Con-vergys (or any of its subsidiaries or related enti-ties) as an individual, and will not lead, join, or serve as a member of a class or group of persons bringing such a claim or lawsuit. Prior to filing this suit,…

In Hull v. Viega, Inc., 2013 WL 759376 (D. Kan., Feb. 27, 2013), Judge Robinson found herself addressing more questions than she was able to answer. One question she did answer was the timeliness of the Defendants' Motion to Strike the class allegations. This putative class action asserted claims on behalf of owners of homes and buildings with Defendants' brass fittings, and those who had paid for repairs or damages caused by these allegedly defective brass fittings, seeking damages under various states' deceptive trade practices acts, as well as under various common law claims. Defendants raised twenty questions in their Motion to Dismiss, which the Court described as a "scorched earth approach" that was both "multi-layered" and "dismissive" in that it required the Court to independently research various nuances of Nevada law. Defendants' Reply also incorporated rulings and raised new issues from a recent order in parallel action pending in…

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