Daleure Jr. v. Commonwealth of Kentucky et al
| Decision Date | 09 August 2001 |
| Docket Number | 00-5538,00-5540,00-5541,00-5536,Nos. 00-5423,00-5440,00-5539,s. 00-5423 |
| Citation | 269 F.3d 540 |
| Parties | (6th Cir. 2001) Gus "Skip" Daleure, Jr.; Christine Leake; Belinda Morrison; Paul Dixon Kubala; Tina Owen; Jesse Carl Emert, Sr.; James B. Adams, Jr.; Gail E. Anderson, and the Proposed Plaintiff Class, Plaintiffs-Appellants/Cross-Appellees, v. Commonwealth of Kentucky, et al. (00-5423), Defendants-Appellees, (00-5440); MCI Telecommunications Corporation; Worldcom Technologies, Inc. (00-5536); Grayson County Fiscal Court; Bullitt County Fiscal Court; Larue Fiscal Court; Fiscal Court of Franklin County, Kentucky; Oldham County Fiscal Court, (00-5538); Invision Telecom, Inc. (00-5539); Gateway Technologies, Inc. (00-5540); Security Telecom Corporation (00-5541), Defendants-Appellees/Cross-Appellants. UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 97-00709, John G. Heyburn II, District Judge.
F. Thomas Conway, WHITE, CONWAY & ADAMS, Louisville, Kentucky, Bart Adams, Louisville, Kentucky, for Plaintiffs.
Mary R. Harville, Trevor L. Earl, Reed, Weitkamp, Schell & Vice, Louisville, KY, C. Kent Hatfield, Henry S. Alford, MIDDLETON REUTLINGER, Louisville, Kentucky, Stephanie A. Joyce, PATTON BOGGS LLP, Washington, D.C., Glenn B. Manishin, PATTON BOGGS LLP, McLean, Virginia, Gary E. Smith, GRAHAM, BRIGHT & SMITH, Dallas, Texas, Michael R. Morow, STEPHENSON, DALY, MOROW & KURNIK, Indianapolis, Indiana, Sean E. Holguin, OFFICE OF THE PIMA COUNTY ATTORNEY, Tucson, Arizona, Denise Garrison McElvein, OFFICE OF THE ATTORNEY GENERAL, St. Louis, Missouri, Erwin O. Switzer III, St. Louis, Missouri, David Whalin, Robert T. Watson, LANDRUM & SHOUSE, Louisville, Kentucky, Suzanne D. Cordery, ASSISTANT JEFFERSON COUNTY ATTORNEY, Louisville, Kentucky, Richard D. Porotsky, Jr., DINSMORE & SHOHL, Cincinnati, Ohio, John E. Selent, DINSMORE & SHOHL, Louisville, Kentucky, William H. Hollander, Michelle D. Wyrick, WYATT, TARRANT & COMBS, Louisville, Kentucky, Stephanie A. Joyce, Patton Boggs, LLP, Washington, DC, Glenn B. Manishin, Patton Boggs, LLP, McLean, VA, Gary E. Smith, Graham, Bright & Smith, Dallas, TX, Michael R. Morow, Stephenson, Daly, Morow, & Kurnik, Indianapolism IN, Barbara Lawall, Pima County Attorney, Tucson, AZ, for Defendants.
Before: KEITH, KENNEDY, and BATCHELDER, Circuit Judges.
Plaintiffs, a class of relatives of prisoners incarcerated in Kentucky correctional facilities, sued the Commonwealth of Kentucky, the Kentucky Department of Corrections, the state of Missouri, several Kentucky, Missouri, Arizona, and Indiana municipal entities, and various private telephone providers alleging antitrust violations and excessive rates in connection with the provision of telephone services to inmates. The plaintiffs alleged Sherman Act, Robinson-Patman Act, and Equal Protection violations.
All defendants moved to dismiss for summary judgment. Non-Kentucky governmental defendants moved to dismiss for want of personal jurisdiction; the judge granted these motions. The Commonwealth of Kentucky and its Department of Corrections moved to dismiss based on the Eleventh Amendment; the judge granted these motions with prejudice. All of the defendants moved to dismiss the plaintiffs' Robinson-Patman Act claim on the ground that telephone services were not "goods" pursuant to the Act; the judge granted these motions with prejudice.
The Kentucky local government defendants moved for summary judgment as to the plaintiffs' Sherman Act claims under state action immunity; the judge did not grant this motion. The remaining defendants moved to dismiss under Rule 12(b)(6) the Sherman Act and Equal Protection claims. The judge applied the filed-rate doctrine and granted the motion with respect to the Sherman Act claims for monetary relief only. The judge granted the motion to dismiss the Equal Protection claim on the ground that the recipients of inmate calls were not similarly situated to other call recipients. Thus the claim for injunctive relief under the Sherman Act remains pending with the District Court. Plaintiffs appeal the dismissals of the non-Kentucky governmental defendants, their Equal Protection claim, their claim for monetary relief under the Sherman Act, and their claim for relief under the Robinson-Patman Act. The defendants cross-appeal the judge's failure to dismiss the Sherman Act claims for injunctive relief, and failure to dismiss based on governmental immunity.
Plaintiff, at the District Court's suggestion, moved to certify the orders of dismissal as "final and appealable." Although the motion does not refer to any rule, presumably it relies on Rule 54(B), which provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
The court's memorandum order recites only: "IT IS HEREBY ORDERED AND ADJUDGED THAT the Orders addressing the Defendants' Motions to Dismiss be and are hereby final and appealable." J.A. at...
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