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City Select Auto Sales, Inc. v. David Randall Associates, Inc.

United States District Court, D. New Jersey

March 28, 2017

CITY SELECT AUTO SALES, INC., a New Jersey corporation, individually and as the representative of a class of similarly situated persons, Plaintiff,
v.
DAVID RANDALL ASSOCIATES, INC., et al., Defendants.

          Alan C. Milstein, Esq. SHEARMAN, SILVERSTEIN, KOHL, ROSE & PODOLSKY, PC Eastgate Corporate Center and Daniel J. Cohen Tod A. Lewis BOCK & HATCH, LLC Attorneys for Plaintiff

          F. Emmett Fitzpatrick, III, Esq. FLAMM BOROFF & BACINE PC Attorney for Defendants

          OPINION

          JEROME B. SIMANDLE Chief U.S. District Judge

         I. INTRODUCTION

         This matter comes before the Court upon Plaintiff City Select Auto Sales, Inc.'s (hereinafter, “City Select” or the “Plaintiff”) motion for entry of judgment as final under Fed.R.Civ.P. 54(b) [Docket Number 242], and Plaintiff's motion for a new trial pursuant to Fed.R.Civ.P. 59(a) [Docket Number 247].

         II. FACTUAL AND PROCEDURAL BACKGROUND

         The Court has summarized the detailed factual and procedural background of this case in its previous Opinions regarding this litigation, see City Select Auto Sales, Inc. v. David Randall Associates, Inc., No. 11-2658, 2014 WL 4755487 (D.N.J. Sept. 24, 2014); City Select Auto Sales, Inc. v. David/Randall Assocs., Inc., 96 F.Supp.3d 403 (D.N.J. 2015); and City Select Auto Sales, Inc. v. David/ Randall Associates, Inc., 151 F.Supp.3d 508 (D.N.J. 2015), so a recount of only those facts relevant to the resolution of the instant motions will be provided.

         A. Pretrial Opinions In This Litigation

         In its September 24, 2014 Opinion, the Court denied Defendants' motion for summary judgment with respect to Raymond Miley, III's (hereinafter “Mr. Miley”) individual liability, holding that the record was “replete with factual disputes concerning Miley's personal involvement in the junk faxes that form the predicate of this litigation, ” as it specifically noted the conflicting deposition testimony of Mr. Miley and Ms. April Clemmer, his office manager. City Select, 2014 WL 4755487 at *9. In its March 27, 2015 Opinion, the Court granted in part Plaintiff's motion for classwide summary judgment, and entered Judgment in favor of Plaintiff and against Defendant David/Randall Associates, Inc. (hereinafter, “David/Randall”), in the amount of $22, 405, 000 for violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (hereinafter, the “TCPA”). City Select, 96 F.Supp.3d at 403. The Court denied Plaintiff's motion for classwide summary judgment as to Mr. Miley's individual liability. In the ensuing Order and Judgment, the Court ordered that Judgment “shall be entered in favor of the Plaintiff Class and against David/Randall Associates, Inc. in the amount of $22, 405, 000. [Docket Item 152.] The Court did not make the Judgment final and appealable under Fed.R.Civ.P. 54(b); instead, the Court entered a stay of providing notice to the Class and for motions related to attorneys' fees until further order of the Court, and ordered trial to commence to determine whether Mr. Miley was individually liable for the faxes at issue.

         Then, in its October 26, 2015 Opinion, the Court denied Plaintiff's motion to certify the March 27, 2015 Judgment as final. City Select, 151 F.Supp.3d at 510. The Court also stayed class notice and briefing on any application for attorneys' fees until further Order of the Court, and referred the matter to Magistrate Judge Karen Williams for a final pretrial/settlement conference relative to the individual liability claim against Mr. Miley.

         B. May 2016 Miley Jury Trial

         A jury trial on Mr. Miley's individual liability commenced on May 23, 2016, and on May 26, 2016, the jury returned a verdict in favor of Miley, finding that (1) he did not have direct, personal participation in any of the four unsolicited fax campaigns, and (2) he did not personally authorize any of the four unsolicited fax campaigns. [Docket Item 240.] The Court then entered judgment on the verdict. [Docket Item 241.]

         C. Post-Trial Matters

         After trial, the Court asked counsel whether there were any matters precluding entry of final judgment against David/Randall in the amount of $22, 405, 000, and Plaintiff subsequently filed a motion for entry of judgment as final under Fed.R.Civ.P. 54(b). [Docket Item 242]. Additionally, on June 24, 2016, given its disagreement on two of the Court's jury instructions described infra, Plaintiff filed a motion for a new trial on Miley's individual liability pursuant to Fed.R.Civ.P. 59(b). [Docket Item 247].

         III. MOTION FOR CERTIFICATION OF JUDGMENT AGAINST DAVID/RANDALL AS FINAL

         First, Plaintiff seeks certification of the Judgment against David/Randall as final under Fed.R.Civ.P. 54(b) in the amount of $22, 405, 000, which is based on 44, 810 successful unsolicited transmissions multiplied by the amount of statutory damages, or $500 each. (Pl.'s Br. at 5.)

         A. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 54(b) provides that when an action involves more than a single claim for relief, as here, “the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if” the Court finds “no just reason for delay.” Fed.R.Civ.P. 54(b); see also City Select, 151 F.Supp.3d at 510-512 (summarizing caselaw regarding 54(b)). Importantly, a district court must ensure that an immediate appeal actually advances the purposes of Rule 54(b), by evaluating (1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in a setoff against the judgment to be made final; and (5) other factors, such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense. See Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 203 (3d Cir. 1996)). (hereinafter, the “Berckeley factors”).

         B. DISCUSSION

         1. Berckeley Factors

         In its October 26, 2015 Opinion denying Plaintiff's motion to certify the March 27, 2015 judgment against David/Randall, the Court began its analysis by noting that the judgment “unquestionably constitutes a final determination of all claims against David/Randall other than for costs and attorney's fees.” City Select, 151 F.Supp.3d at 511-12. However, after reviewing Berckeley factors, the Court found the entry of final judgment to be premature because “the TCPA claim against Mr. Miley relies, in essence, upon the same facts and legal theories underpinning the now adjudicated TCPA claim against David/Randall.” Id. at 512. The Court was therefore concerned about the possibility of piecemeal and duplicative appeals if the David/Randall judgment was appealed first, and then the Miley verdict months later, since both matters involved so many common issues.

         Since the October 2015 Opinion, as described supra, the Court conducted the Miley trial between May 23-26, 2016, and entered judgment on the verdict in favor of Mr. Miley on May 27, 2016. [Docket Item 241]. Now that both the David/Randall matter and the Miley trial have been fully adjudicated, there is no longer a concern about piecemeal appeals, so the Berckeley factors now call for entering judgment as final.

         David/Randall opposes the motion to certify the $22, 405, 000 judgment as final because it is “inappropriate, unjust, and would not provide any actual benefit to any class member.” (Ex. A. to Def. Br. at 7.) Furthermore, they argue that certifying the judgment as final “would unquestionably put the Defendants out of business and into bankruptcy.” (Id.) As a result, they propose a procedure that “would calculate the final Judgment by taking the actual number of Class members who respond and are approved, multiplying it by the statutory $500 damages, and use that figure as the amount of the final Judgment, up to the $300, 000 limit of the Class Fund.” (Id. at 10.)

         As Plaintiff notes, the Court has already rejected this argument, and Defendant has offered no new evidence justifying reconsideration.[1] See City Select, 151 F.Supp.3d at 512 n. 6 (“Moreover, even in the event the Court certified the March 27, 2015 Judgment, the Court finds no support for David/Randall's position that the Judgment against David/Randall should, at this time, be confined to an amount less than $22, 405, 000. Nor has David/Randall provided any convincing authority in support of its position.”) The Court will therefore certify the March 27, 2015 judgment against David/Randall as final under Rule 54(b).

         2. Stay Deferring Notice to the Class and Resolution of Attorneys' Fees

         Plaintiff also requests a stay of Class notice under Fed.R.Civ.P. 23(d)(1)(B) and a deferral of briefing and ruling on attorneys' fees until after the Third Circuit has resolved all likely appeals and monies are collected from David/Randall (and/or Mr. Miley) to benefit the Class. (Pl.'s Br. at 7.)

         Plaintiff offers a host of reasons for this request, including the Third Circuit and a decision rendered before any money might be available for distribution to the Class or to Plaintiff's attorneys, (3) the total amount of any recovery against David/Randall is not yet ascertainable, (4) notice to the class would cause considerable confusion if a determination on fees and costs is made but circumstances surrounding the judgment collected change, (5) it is impossible to determine an appropriate attorney fee until monies are ...


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