Little v. T–Mobile USA, Inc.

• Decision Date: 24 August 2012
• Docket Number: Non–Argument Calendar.,No. 12–10170,12–10170,n–Argument Calendar.
• Citation: 691 F.3d 1302,23 Fla. L. Weekly Fed. C 1460
• Parties: Melissa K. LITTLE, et al., Plaintiffs, Jacqueline Robinson, Searcy Crawford, Plaintiffs–Appellants, v. T–MOBILE USA, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

691 F.3d 1302

23 Fla. L. Weekly Fed. C 1460

Melissa K. LITTLE, et al., Plaintiffs,Jacqueline Robinson, Searcy Crawford, Plaintiffs–Appellants,

v.T–MOBILE USA, INC., Defendant–Appellee.

No. 12–10170

Non–Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Aug. 22, 2012.

As Corrected Aug. 24, 2012.

Wesley W. Barnett, D. Frank Davis, John E. Norris, Courtney Lynn Peinhardt, Tyler Vail, Davis & Norris, LLP, Birmingham, AL, for Plaintiffs–Appellants.

Kristine McAlister Brown, Brian R. Stimson, Alston & Bird, LLP, Atlanta, GA, Bryan Oxford Balogh, Burr & Forman, LLP, Birmingham, AL, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, CARNES, and JORDAN, Circuit Judges.

CARNES, Circuit Judge:

Jacqueline Robinson and Searcy Crawford, whom we will refer to as the plaintiffs, appeal the district court's order denying class certification of their proposed class action against T–Mobile USA, Inc. They contend that the district court erred in concluding that T–Mobile did not waive its right to assert arbitration and class-action waiver defenses. Ironically, the plaintiffs' own waiver of an issue controls the outcome of this appeal.

I.

The plaintiffs filed a proposed class action against T–Mobile asserting state-law claims of conversion, trespass to chattels, and unjust enrichment. They alleged that: (1) they had reported to T–Mobile that their cell phones had been lost or stolen; (2) unknown persons brought their lost or stolen phones to T–Mobile; and (3) T–Mobile unlawfully reactivated the phones without the plaintiffs' permission. The plaintiffs filed a motion for class certification of their conversion claim, proposing the following class:

All persons within the United States of America who, within the last six years preceding the date of filing the original complaint in this case, reported a phone lost or stolen to T–Mobile and where T–Mobile later allowed the use of that lost or stolen phone by another person on T–Mobile's network.

We detour from the procedural history here to summarize some of the law governing class certification, which will provide context for our discussion of the district court's ruling on the certification motion. Before a district court may grant a motion for class certification, a plaintiff seeking to represent a proposed class must establish that the proposed class is “adequately defined and clearly ascertainable.” DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir.1970)¹; cf. John v. Nat'l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir.2007) (“The existence of an ascertainable class of persons to be represented by the proposed class representative is an implied prerequisite of Federal Rule of Civil Procedure 23.”).

If the plaintiff's proposed class is adequately defined and clearly ascertainable, the plaintiff must then establish the four requirements listed in Federal Rule of Civil Procedure 23(a). Those requirements are:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). Those four requirements are commonly referred to as “numerosity, commonality, typicality, and adequacy of representation.” See, e.g., Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1188 (11th Cir.2003).

In addition to establishing the Rule 23(a) requirements, a plaintiff must also establish that the proposed class satisfies at least one of the three requirements listed in Rule 23(b). Fed. R. Civ. P. 23(b); Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1279 (11th Cir.2000). In this case, the plaintiffs are pursuing certification under the third alternative requirement, Rule 23(b)(3). Rule 23(b)(3) permits class certification if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3) (emphasis added); see Fitzpatrick v. Gen. Mills, Inc., 635 F.3d 1279, 1282 (11th Cir.2011).

We now return to the procedural history. The district court denied the plaintiffs' motion for class certification on five grounds. The first ground was that the plaintiffs had not satisfied their preliminary burden of establishing that their proposed class was clearly ascertainable. The court reasoned, in part, that the plaintiffs had “made no effort to separate out those putative class members who may very well be barred from pursuing class claims due to the existence of valid arbitration agreements or class action waivers that potentially prohibit such litigation.” The court rejected the plaintiffs' contention that by substantially participating in the litigation T–Mobile had waived its right to assert arbitration and class-action waiver defenses.

The second ground on which the court denied class certification was that the plaintiffs had not satisfied the Rule 23(a)(1) numerosity requirement. The court reasoned that the plaintiffs had offeredno evidence showing numerosity, nor made any “effort to account for those putative class members who waived their right to pursue relief against T–Mobile on a class-wide basis or who are bound by their agreement to arbitrate disputes with T–Mobile.”

The third ground the district court stated for denying class certification was that the plaintiffs had failed to satisfy the predominance requirement in Rule 23(b)(3) because there were “significant state-wide variations in the law” of conversion and in the law regarding other issues, such as the enforceability of class-action waivers.

The fourth ground the court stated for denying class certification was that “damage-related concerns evidence a predomination of individualized inquiries and render the proposed class unfit for certification under Rule [23](b)(3).” The court explained what those damage-related concerns were:

Here, Plaintiffs contend that “in this era of Ebay and other public online sites selling used phones by the millions, determining a particular model phone's value is a relatively simple matter of online research.” However, they certainly offer no concrete proposal or methodology about how to effectively and accurately manage such online research on a nationwide basis. For example, when conducting online research, would 2011 be the year to use for establishing the value for a used phone of a certain model or would the year in which the phone was misplaced or stolen be the more appropriate time frame? Plaintiffs also ignore how individualized issues relating to the age of the phone, what contents or applications were previously on the phone, and whether the original owner was a heavy or light user of the phone, might affect the value of the used phone. Additionally, Plaintiffs do not address whether loss of use of the phone should be compensable and, if so, suggest how it might be reduced to a formula-type calculation.

(Alteration and citation omitted.) The district court's determination that the plaintiffs had not established the predominance of common issues under Rule 23(b)(3) because of individual damage-related issues was an alternative, independent ruling. That determination provided an additional reason that the plaintiffs had not established the predominance of common issues. Class certification would have been denied for that reason regardless of the variations in state law relating to conversion and regardless of the enforceability of class-action waivers.

The fifth ground the district court stated for denying class certification was that the plaintiffs had failed to establish superiority under Rule 23(b)(3). The court based that determination, in part, on the plaintiffs' failure “to suggest how to manage the rather thorny issue of putative class members whose rights to litigate their conversion claims as part of a class proceeding in this forum may have been cutoff by either a class action waiver provision, an agreement to arbitrate, or both.”

II.

We review only for an abuse of discretion the district court's denial of class certification. Hines v. Widnall, 334 F.3d 1253, 1255 (11th Cir.2003). “A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures” in ruling on class certification, makes clearly erroneous factfindings, or applies the law “in an unreasonableor incorrect manner.” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir.2004) (quotation marks omitted).

The plaintiffs contend that the district court erred in concluding that T–Mobile did not waive its right to assert arbitration and class-action waiver defenses and, for that reason, the court abused its discretion in denying class certification. We need not decide if the district court should have ruled that T–Mobile waived its right to assert those two defenses, however, because even if it did waive them the plaintiffs cannot succeed in this appeal. The plaintiffs cannot succeed in this appeal because they failed to challenge in their opening brief to this Court the district court's fourth ground for denying class certification: its independent, alternative ruling that “damage-related concerns evidence a predomination of individualized inquiries and render the proposed class unfit for certification under Rule [23](b)(3).” The plaintiffs' opening brief not only fails to argue the predominance issue involving variation in damages, it doesn't even mention the word “damages” except in passing to note that the complaint sought them. Appellants Br. 11.

By failing to challenge in their opening brief the district court's ruling that they did not establish the predominance of common...