Category Archives E.D. Mo.

Judge Limbaugh's analysis in City of O'Fallon v. Centurylink, Inc., 2013 WL 1036514 (E.D. Mo., March 14, 2013), is interesting in two respects. First, it's interesting because the Court did not simply decline to exercise its jurisdiction as Judge Fleissig did in City of Maryland Heights v. Trafcone Wireless, Inc., 2013 WL 791866 (E.D. Mo., March 4, 2013), a similar class action composed of plaintiff municipalities seeking to recover business license taxes from defendant providers of telephone services. It's also interesting for its thorough discussion of what exactly constitutes a "significant defendant" for purposes of applying CAFA's Local Controversy Exception. This analysis was a bit of overkill because the Court had already determined that the removing defendants had failed to meet their burden of establishing both the requisite amount in controversy (defendants had pleaded only $4.2 million in controversy in their Notice of Removal and had inexplicably ignored attorneys' fees…

When a plaintiff moves to amend the complaint, when does the 30-day clock for removal begin?  There are a few possibilities: The majority rule: the clock begins when the state court grants plaintiff's motion for leave to file an amended complaint. The minority rule: the clock begins when plaintiff files said motion. After noting the absence of controlling Eighth Circuit authority on this issue, Judge Ross concluded that the Eastern District of Missouri follows the majority rule.  See Svoboda v. Smith & Nephew, Inc., 2013 WL 1883249 (E.D. Mo. May 6, 2013). The case also mentions in a footnote that the District of Kansas appears to follow a variation of the majority rule: the clock begins on the date of service of the amended pleading (which would necessarily be after the state court grants plaintiff's motion for leave).  Id. at *4 n.2 (citing Miller v. Stauffer Chemical Co., 527 F.Supp.…

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…

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 a brief, but useful order, Judge Fleissig denied a motion to quash a subpoena and for sanctions asserted by counsel characterized as a “professional objector.”   Class counsel for a class action pending in the United States District Court for the Central District of California had served a subpoena on the Law Office of Jonathan E. Fortman, LLC, which represented an objector to the proposed class settlement.  The subpoena instructed Fortman/Movant to attend a deposition and produce documents related to: 1) The filing of the objection in the underlying action; (2) Any objections filed in state or federal court by Movant to other class action settlements; (3) Any fee sharing arrangements between Movant and its clients in relation to the current and other objections; and (4) Any settlements or payouts Movant received in return for withdrawing a client's objection or appeal. Fortman asserted “outrage,” moved to quash, and sought fees…

In an interesting order, Judge Jackson granted defendant Office Depot’s motion to dismiss the class allegations in a putative class action brought under the TCPA, 42 U.S.C. § 227, alleging the transmission of unsolicited faxes.  Judge Jackson shrugged aside Plaintiff Lindsay Transmission’s protest that the motion to dismiss prior to class discovery was premature, citing Rule 23(c)(1)(A)’s directive to determine the propriety of class certification “at an early practicable time.”   This is of course consistent with the increasing number of courts that have expressed a willingness to dismiss class allegations at an early stage, and the Court may well have been influenced by Office Depot’s affidavit explaining that Lindsay Transmission’s initial nationwide discovery requests would have required more than 2,000 manager hours to interview 1,132 store managers in 1,111 retail stores, a truly expensive fishing expedition. Instead, the District Court mooted the onerous discovery requests by striking the class allegations…

“An ascertainable loss of money or property” is an essential element of a cause of action brought under the Missouri Merchandising Practices Act. But what if something is free and doesn't perform as advertised? In Grawitch v. Charter Communications, Inc., 2013 WL 253534 (E.D. Mo. Jan. 23, 2013), an internet-service provider offered its existing customers a free upgrade: faster internet service ("with download speeds of up to 30 MBPS") at no additional charge.  But to enjoy the faster internet service, customers would need to upgrade their modems (available only from the ISP).  According to plaintiffs, those upgraded modems weren't capable of download speeds of up to 30 MBPS. Plaintiffs brought a class action under the MMPA, alleging a loss of money to Plaintiffs: “specifically, the difference in the cost and value of the service they paid for, and the useable service they received.” Is that an "ascertainable loss" under the…

In an opinion paralleling that in Anadarko, another lengthy class action came to (nearly) rest on the other side of the border in Doyle v. Fluor Corp., 2013 WL 150807 (E.D. Mo. Jan. 15, 2013).  That opinion marks the resolution of the protracted Doe Run smelter property damage litigation, and involved the claims of some 700 surrounding current and former property owners whose properties were contaminated by elevated levels of lead.  After a decade of litigation, the case reached resolution in 2012 whereby the class agreed to release all property-related claims in exchange for $55,000,000.00.  On the eve of final approval, a group of objectors composed of twenty-four former property owners and four current property owners moved to intervene and challenge the settlement, asserting that the notice scheme was inadequate and the allocation plan unfair.  The trial court denied their objections and approved the class settlement. On appeal, Judge Ahrens,…

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