594 F.3d 419 (5th Cir. 2010), 09-50157, Murray v. Fidelity Nat. Financial, Inc.

Docket Nº:09-50157 .
Citation:594 F.3d 419
Opinion Judge:EMILIO M. GARZA, Circuit Judge:
Party Name:Wesley MURRAY; Kelly Renee Murray, Plaintiffs-Appellants, v. FIDELITY NATIONAL FINANCIAL, INC.; Fidelity National Title Group; Chicago Title Insurance Company; Ticor Title Insurance Company; Chicago Title Insurance Group; Fidelity National Title Insurance Company, Defendants-Appellees.
Attorney:Austin P. Tighe, Jr. (argued), Feazell & Tighe, L.L.P., Austin, TX, for Plaintiffs-Appellants. Dennis Robert Rose (argued), Steven Avery Goldfarb, Aubrie Ann Knight Wancata, Andrew S. Pollis, Hahn Loeser, Cleveland, OH, Stephen P. Allison, Haynes & Boone, L.L.P., San Antonio, TX, for Defendants-A...
Judge Panel:Before KING, GARZA and HAYNES, Circuit Judges. KING, Circuit Judge, specially concurring:
Case Date:January 15, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 419

594 F.3d 419 (5th Cir. 2010)

Wesley MURRAY; Kelly Renee Murray, Plaintiffs-Appellants,

v.

FIDELITY NATIONAL FINANCIAL, INC.; Fidelity National Title Group; Chicago Title Insurance Company; Ticor Title Insurance Company; Chicago Title Insurance Group; Fidelity National Title Insurance Company, Defendants-Appellees.

No. 09-50157 .

United States Court of Appeals, Fifth Circuit.

January 15, 2010

Page 420

Austin P. Tighe, Jr. (argued), Feazell & Tighe, L.L.P., Austin, TX, for Plaintiffs-Appellants.

Dennis Robert Rose (argued), Steven Avery Goldfarb, Aubrie Ann Knight Wancata, Andrew S. Pollis, Hahn Loeser, Cleveland, OH, Stephen P. Allison, Haynes & Boone, L.L.P., San Antonio, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas.

Before KING, GARZA and HAYNES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

This appeal from a dismissal in which the district court held that the Murrays' claims were moot before they became named plaintiffs invites us to extend our reasoning in Zeidman to plaintiffs added through amendment. For the following reasons, we decline to do so.

I

Appellants Wesley Murray and Kelly Renee Murray (the " Murrays" ) were not parties to the instant suit when it was filed. The suit began when Rosa Maria Arevalo1 and Amy Lyn Rash (" Original Plaintiffs" ) filed a class action alleging that Ticor Title Insurance Company (" Ticor Title" ) had overcharged them to record documents related to their residential real estate closings and that the other Defendants were also liable under theories of vicarious liability. It soon became clear that Original Plaintiffs had not in fact conducted any business with Ticor Title or any of the other Defendants. Rather, they had dealt with a third party that promoted itself as " Ticor Title of San Antonio," despite having no authority to act for any of the Defendants.

Original Plaintiffs filed a FED.R.CIV.P. 15(a)(2) motion for leave to amend their complaint and add the Murrays, who had dealt with Defendant Chicago Title Insurance Group (" Chicago Title" ), as class representatives. While that motion was pending, Chicago Title tendered a check to the Murrays' counsel as full payment of their claim. Notwithstanding the tender, the district court granted Original Plaintiffs' motion for leave to amend, and the Murrays were added as named representatives of the putative class. Original Plaintiffs and the Murrays filed a Second Amended Class Action Complaint.

Defendants responded with two motions challenging the subject matter jurisdiction of the district court. They filed a motion to dismiss, arguing, inter alia, that the

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Murrays' claims had been mooted by the tender of payment before they became parties to the suit. They also filed a motion for summary judgment, arguing, inter alia, that Original Plaintiffs failed to establish any case or controversy against any Defendant, because none of the Defendants handled Original Plaintiffs' real estate transactions.

The district court granted Defendants' motions. The Murrays appeal the...

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