200 F.R.D. 5 (D.Mass. 2001), Civ. A. 97-10307-REK, Smilow v. Southwestern Bell Mobile Systems, Inc.

Docket Nº:CIV. A. 97-10307-REK.
Citation:200 F.R.D. 5
Opinion Judge:KEETON, District Judge.
Party Name:Jill Ann SMILOW, on her behalf and on behalf of all others similarly situated, Plaintiff, v. SOUTHWESTERN BELL MOBILE SYSTEMS, INC. d/b/a Cellular One, Defendant.
Attorney:Thomas G. Shapiro, Edward F. Haber, Thomas V. Urmy, Jr., Andrew A. Rainer, Shapiro, Grace & Haber, Boston, MA, for Plaintiff. Marcus E. Cohn, Jonathan Sablone, Tristin L. Batchelder, Stephen V. Saia, Nixon Peabody, Boston, MA, for Defendant.
Case Date:March 22, 2001
Court:United States District Courts, 1st Circuit, District of Massachusetts
 
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Page 5

200 F.R.D. 5 (D.Mass. 2001)

Jill Ann SMILOW, on her behalf and on behalf of all others similarly situated, Plaintiff,

v.

SOUTHWESTERN BELL MOBILE SYSTEMS, INC. d/b/a Cellular One, Defendant.

No. CIV. A. 97-10307-REK.

United States District Court, D. Massachusetts.

March 22, 2001

Plaintiff filed proposed class action against telephone company asserting breach-of-contract claims with respect to " rounding up" billings for mobile telephone service and claims under varied legal theories for billings on incoming calls. On company's motion to decertify incoming call class, the District Court, Keeton, J., held that likelihood that thousands of separate determinations of damages would be necessary warranted decertification.

Motion granted.

Page 6

Thomas G. Shapiro, Edward F. Haber, Thomas V. Urmy, Jr., Andrew A. Rainer, Shapiro, Grace & Haber, Boston, MA, for Plaintiff.

Marcus E. Cohn, Jonathan Sablone, Tristin L. Batchelder, Stephen V. Saia, Nixon Peabody, Boston, MA, for Defendant.

Opinion

KEETON, District Judge.

I. The Pending Matter for Decision

This civil action was filed by plaintiff Jill Ann Smilow on February 11, 1997. Plaintiff Smilow sought to proceed " on her behalf and on behalf of all others similarly situated" on claims against " Southwestern Bell Mobile Systems, Inc. d/b/a/ Cellular One, Defendant." She alleged breach-of-contract claims with respect to " rounding up" billings for mobile telephone service and claims under varied legal theories for billings on " incoming calls" (which counsel for plaintiffs Smilow and Bibeau prefer to label as their " Received Calls Claim" ). The court, by an order made on October 9, 1998, acting with the purpose of prompt consideration of worthiness of the case for class action proceedings, certified plaintiff Smilow as a class representative on her claims for billings on " incoming calls" and ordered further proceedings aimed at drafting a precise and appropriate class description for incoming call claims and drafting an appropriate form of notice of the class proceedings. Sharp and continuing differences between the parties and their attorneys over these matters have delayed resolution of the precise form of class proceedings and selection of an appropriate person or persons to represent the defined class. These matters are now before the court for decision on Defendant's Motion to Decertify the Incoming Call Class (Docket No. 128, filed December 22, 2000) and Motion by Margaret L. Bibeau to Be Designated as a Representative of the Certified Class (Docket No. 112, filed May 12, 2000).

For the reasons explained in this opinion, the order below allows Defendant's Motion to Decertify the Incoming Call Class, though on narrower grounds and with possibly more limited consequences for the final disposition of this case than defendant proposes. The Motion by Margaret L. Bibeau to Be Designated as a Representative of the Certified Class is denied as...

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