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.
Jan. 15, 2010.
594 F.3d 419
The Commission‘s experienced investigator explained that the practice was for defendant as the trader to transmit his trade data to become the values shown on Exhibit 27. The defendant received the database made from his e-mails, and the database was downloaded into Exhibit 27. While this witness did not have personal knowledge of details of operation of this particular company, there was no evidence disputing this explanation.
There was no contention or evidence from defendant that there was any impropriety or error in the trading values shown in Exhibit 27.
The trial was perfectly fair and the proof of this exhibit was accepted and acceptable. No precedent requires this panel ruling. I regard it as a misuse of the rules of evidence and dissent.
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.
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.
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
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
The district court granted Defendants’ motions. The Murrays appeal the decision dismissing their claims against Chicago Title. Original Plaintiffs have not appealed, and the Murrays have not challenged the district court‘s finding that Original Plaintiffs lacked standing to sue.
II
We review de novo the district court‘s dismissal of the Murrays’ claims. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
The Murrays argue that, because
As a general principle, a purported class action becomes moot when the personal claims of all named plaintiffs are satisfied and no class has been certified. Zeidman, 651 F.2d at 1045. In such a case there is no plaintiff (either named or unnamed) who can assert a justiciable claim against any defendant and consequently there is no longer a “case or controversy” within the meaning of Article III of the Constitution. See, e.g., Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975); Board of School Comm‘rs. v. Jacobs, 420 U.S. 128, 130, 95 S. Ct. 848, 43 L. Ed. 2d 74 (1975); Sannon v. United States, 631 F.2d 1247, 1252 (5th Cir. 1980).
We have, however, recognized a limited exception to this general principle. In Zeidman, the plaintiffs’ motion for class certification was pending when the defendants tendered to the named plaintiffs the full amount of their personal claims and moved for the dismissal of the entire action as moot. 651 F.2d at 1036. Although the case did not present the type of “transitory” claims typically involved in the “capable of repetition, yet evading review” exception to the mootness doctrine, the court found that the same logic applied to situations in which “the defendants have the ability by tender to each named plaintiff effectively to prevent any plaintiff in the class from procuring a decision on class certification.” Id. at 1050. In both situations, the plaintiff‘s claim is prematurely mooted, thus justifying his continuance as class representative. Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383, 389 n. 11 (5th Cir. 2003). Foreshadowing the concerns raised by the Murrays, the court noted “that in those cases in which it is financially feasible to pay off successive named plaintiffs, the defendants would have the option to preclude a viable class action from ever reaching the certification stage.” Id. The court ultimately held “that a suit brought as a class action should not be dismissed for mootness upon tender to the named plaintiffs of their personal claims, at least when ... there is pending before the district court a timely
The reasoning of Zeidman was extended in Sandoz.2 In Sandoz, a Fair Labor Standards Act case, the defendant sought to moot the plaintiff‘s claims by making a Rule 68 offer before other employees had an opportunity to opt-in to the suit. We were concerned that allowing this practice to moot the suit would obviate the collective action provision because defendants could always “pick off a named plaintiff‘s FLSA claims before the plaintiff has a chance to certify the collective action.” 553 F.3d at 919. Accordingly, we held that “when a FLSA plaintiff files a timely motion for certification of a collective action, that motion relates back to the date the plaintiff filed the initial complaint, particularly when one of the defendant‘s first actions is to make a Rule 68 offer of judgment.” Id. at 920-21.
The Murrays argue that the same reasoning should apply where a defendant attempts to moot the plaintiffs’ individual claims while a
Although the Murrays have insisted that the interests of judicial economy motivated their decision to amend rather than to file a new complaint, we are not so concerned with the effects of multiple filings.
Unlike the plaintiffs in Zeidman and Sandoz, the Murrays had a readily available means of preventing the defendants from mooting their suit. Had the Murrays chosen to file a separate complaint rather than seeking to be added to the original complaint, the defendants would have been unable to moot their claims. See Sandoz, 553 F.3d at 921; Zeidman, 651 F.2d at 1051. Further, had the Murrays, rather than individuals who had no valid claims against Defendants, been the original parties to the suit, Defendants would have been unable to moot their claims. See id. In light of these available remedies, we see no need to extend Zeidman and Sandoz to the circumstances of this case.
Furthermore, even if we were inclined to extend Zeidman to cover plaintiffs seeking to be added to existing class
III
In sum, although we recognize the Murrays’ concerns, we decline their invitation to extend Zeidman. Not only were the Murrays’ claims mooted before they ever became parties to the suit, the suit itself was moot from the day it was filed. We affirm the district court‘s dismissal of the suit.
AFFIRMED.
KING, Circuit Judge, specially concurring:
I concur in the judgment affirming the district court‘s dismissal of the suit and in the panel‘s decision not to extend the reasoning in Zeidman to plaintiffs added by amendment.