Ex parte BOC Group, Inc.

• Court: Supreme Court of Alabama
• Citation: 823 So.2d 1270
• Parties: Ex parte The BOC GROUP, INC. (In re National Metals, Inc. v. The BOC Group, Inc., et al.)
• Decision Date: 02 November 2001

823 So.2d 1270

Ex parte The BOC GROUP, INC.
(In re National Metals, Inc. v. The BOC Group, Inc., et al.)

1001542.

Supreme Court of Alabama.

November 2, 2001.

823 So.2d 1271

George G. Lynn, Thomas W. Thagard III, and Alexander J. Marshall of Maynard, Cooper & Gale, P.C., Birmingham, for petitioner

S.C. Middlebrooks and Samuel M. Hill of Gardner, Middlebrooks, Gibbons & Kittrell, P.C., Birmingham; and James H. McFerrin of Southeastern Legal Group, L.L.C., Birmingham, for respondent.

HOUSTON, Justice.

The BOC Group, Inc. ("BOC"), a defendant in an action pending in the Jefferson Circuit Court, moved the circuit court to dismiss or to stay that action, styled National

823 So.2d 1272

Metals, Inc., v. BOC, Inc.; The BOC Group, Inc.; BOC Gases ("the National Metals action"), asserting that another case in the Jefferson Circuit Court, styled MKS Holdings, Inc., d/b/a M. Kimerling & Sons v. BOC Group PLC, d/b/a The BOC Group, Inc., ("the MKS action"), was substantially similar to the National Metals action. The trial court denied BOC's motion and its two subsequent motions to reconsider. BOC therefore petitions for a writ of mandamus directing Judge Dan C. King III, circuit judge for the Jefferson Circuit Court, to enter an order staying the proceedings in the National Metals action. We grant BOC's petition

The MKS action was filed on February 1, 1999, in the Jefferson Circuit Court. It named BOC as a defendant and claimed that BOC had wrongfully collected certain hazardous-material fees. Such fees, it alleged, were represented to be governmental or regulatory in nature, but were in fact "phantom charges" not required by any regulation. The action was brought on behalf of a putative class of plaintiffs who paid the hazardous-material fees to BOC, and the complaint alleged breach of contract, fraud, suppression, unjust enrichment, and conspiracy and sought the imposition of a constructive trust. Discovery and document exchanges have been conducted on the class-certification issues, and both the certification hearing and the trial have been scheduled.

On November 22, 2000, National Metals filed its own class-action suit against BOC in the Jefferson Circuit Court. In its complaint, National Metals also alleged that BOC had improperly collected certain hazardous-material charges. Like the MKS action, National Metals sued on behalf of a putative class defined as those who had paid BOC those fees, and it alleged breach of contract, fraud, suppression, and unjust enrichment, as well as money had and received and theft by deception.¹

BOC moved the trial court in the National Metals action to dismiss or stay the case, because, it said, both the putative class and the claims the class alleged were substantially similar to the prior-filed MKS action. The trial court denied the motion, stating that the MKS action was not substantially similar, because the plaintiff in that case (MKS Holdings, Inc.) "has been dissolved and its successor in interest is seeking bankruptcy protection... [and] the types of claims that could be asserted ... are different in nature and kind than those that could be asserted by National Metals." The trial court denied another motion to reconsider, and BOC filed this petition.

A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a...