Smith et al v. Georgia Energy USA, LLC et al
Filing
249
ORDER granting 247 Motion to decertify the plaintiff classes. Signed by Judge J. Randal Hall on 12/1/14. (cmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
JONATHAN SMITH,
et al.,
*
•
Plaintiffs,
*
*
CV 208-020
*
GEORGIA ENERGY USA,
et al.,
LLC,
*
*
Defendants.
*
ORDER
In
this
class
fraud/negligent
received,
action,
Plaintiffs
misrepresentation,
unjust enrichment,
Deceptive
Trade
fraudulent
calibration of
negligence,
Cisco,
Practices
Act
Cisco Travel Plaza Inc.,
plaintiff classes.
satisfied
that
from
pumps
beginning
Inc.,
Cisco
Georgia.
Travel
and
the
alleged
in
2005
at
The Estate of
Plaza,
Inc.,
and
As Plaintiffs do not object and the Court is
decertification
decertification motion.
(Doc.
I.
defendants,
had
for
II now move the Court to decertify the
is
in
the
best
named plaintiffs and other class members,
In 2008,
money
arising
gasoline
Cisco Oil,
claims
and violation of Georgia's Uniform
three filling stations in Camden County,
Fairley
assert
interests
of
the
the Court GRANTS
the
247.)
BACKGROUND
Plaintiffs filed this class action against sixteen
comprised
of
three
distinct
groups:
the
"Cisco
Defendants"
Walker;
(Fairley
Cisco
Oil,
Travel Plaza,
Cisco;
Inc.;
Inc.
II);
Althea
Cisco
LLC;
II
Ghazi;
LLC;
Management,
Jack
LLC;
and
Travel
Shave;
Plaza,
Georgia Petro USA,
Global
Kingsland
Energy
USA,
II,
and
Cisco
formed
and
owned,
or
had
Cisco
Georgia Petro
LLC;
Kingsland
LLC),
and
"Sekhon Defendants" (Kuldeep S. Sekhon and United Fuels,
Fairley
Cisco
(Biju Abraham;
LLC;
Management
Tammy
Inc.;
the "Abraham Defendants"
Georgia Energy USA,
USA,
Cisco
a
the
Inc.).
controlling
interest in, the three filling stations at issue until 2000 when
he
transferred ownership
and
Aletha
Cisco
retained the
to
his
Shave.
roles
of
daughters,
Despite
CEO and CFO,
this
of
the
stations
In early 2008,
Abraham
answered
before
Mr.
unrepresented
being
have
filed
not
Cisco
in December
sold the
and
Mr.
with
served
Mr.
Mr. Cisco negotiated the
the
associated corporate
complaints
and
Sekhon
Walker
continued to manage
Sekhon Defendants
Mr.
Abraham's
the
the
Sekhon Defendants
Defendants.
jurisdiction
action.
the
to
transfer,
and he
nearly all aspects of the businesses.
sale
Tammy Cisco
against
responded
Abraham
complaint
entities
them,
to
stations
but
subsequent
2006.
to the
fled
in
the
this
initially
are
now
filings,
including Plaintiffs' motion for summary judgment against them.
The Cisco Defendants,
suit since
its
case, however,
inception.
however,
have actively defended this
Within weeks
of
filing Plaintiffs'
the State of Georgia initiated a civil RICO and
forfeiture
Georgia.
the
action
in
the
Superior
Court
of
Camden
County,
Following the appointment of a receiver in that case,
State
seized
all
the
Cisco
Defendants'
totaling more than $2.5 million.
available
assets
—
The receiver retained over $1
million to pay himself and disbursed an additional $1 million to
two
fuel
$2.75
suppliers.
million
to
The
the
District Attorney's
Cisco
State.
office,
Defendants
The
forfeited
another
Judicial
Circuit
Brunswick
who managed
the
RICO
action,
paid
out approximately $50,000 in claims to the motoring public,
but
the plaintiff classes were not permitted to access these or any
other of the forfeited funds.
In April
2010,
Mr.
with nearly no assets.
Charlton
either
County,
supplied
stations.
Class
suits
ultimately
that
resulted
action.
liquid
(See
assets
to
or
Counsel's
created
in
leaving
Class
on
behalf
competed
Doc.
244.)
were
depleted
of
in
unresolvable
Counsel's
two
the
the
the
Cisco
Charlton
conflict
all
the
of
Cisco
substantial
incurred in defending the Charlton County suits.
Court granted summary judgment in favor of
and Tammy Cisco Walker on November 4,
estate
entities
disqualification
Moreover,
by
an
in the State Court
against
involvement
an
behind
Class Counsel initiated a
the Cisco Defendants
Georgia
fuel
died,
In June 2011,
second lawsuit against
of
Cisco
that
fuel
County
interest
in
this
Estate's
legal
Finally,
fees
this
Althea Cisco Shave
2014, thereby discharging
from liability the only two Cisco Defendants with assets of any
substance.
(See Doc.
246).
Defendants therefore assert,
and Plaintiffs agree,
that the
combined assets of all remaining defendants are insufficient to
pay the administrative costs of publishing the required notices,
much less any compensatory damages
Plaintiffs prevail
Pis.'
Resp. , Doc.
Court
to
affords
order
in the end.
248,
(Defs.'
at 2.)
efficiency
class members
Br.,
Accordingly,
decertification
superior
to the
as
to
the
this
Doc
247,
should
at 4-5;
Defendants urge the
class
device
litigation
benefit to the litigants in light of Defendants'
no
or
longer
potential
gross financial
shortcomings.
II.
Questions
concerning
ANALYSIS
class
certification
sound discretion of the district court.
Mortgage
Gen.
Thus,
class
Corp.,
Tel.
of
F.3d
Sw.
1260,
v.
1276
Falcon,
457
left
to
See Culpepper v.
(11th
U.S.
Cir.
2007)
147,
160
the
Irwin
(citing
(1982)).
this Court may revisit its initial decision to certify a
in
pursuant
Culpepper,
F.2d
Co.
491
are
1016,
light
to
491
of
subsequent
Federal
Rule
F.3d at
1019
(5th
of
1276;
Cir.
developments
Civil
in
the
Procedure
litigation
23(c)(1)(C).
see also Richardson v.
1983)
("Under
Rule
23
the
Byrd,
709
district
court is charged with the duty of monitoring its class decisions
in light of the evidentiary development of the case."); Buford
v.
H
&
R
Block,
Inc.,
168
F.R.D.
340,
346
(S.D.
Ga.
1996)
("[O]ptions such as decertification or revised certification are
always available to the district
court.").
This
is
especially
so during the period before any notice is sent to members of the
class,
Tel.
as
certification "is inherently tentative."
Co.,' 457 U.S.
437 U.S.
346
class
463,
469 n.ll
(noting that
matter"
as
at 160
"the
(citing Coopers & Lybrand v. Livesay,
(1978));
class
Gen.
see also Buford,
certification is
merits
of
the
168
F.R.D.
at
"strictly a procedural
claims
at
stake
are
not . . . considered when determining the propriety of the class
action vehicle")
(citation omitted).
The Court has drawn on its well of knowledge about the long
course
of
multiple
also
this
litigation
has
carefully
publishing the
in
considered
comparison
which
the
the
to,
costs
at
intervention
parties
are
It
benefits
of
the
of
Moreover,
class.
cost
in
it appears to the Court that counsel
working
putative class members.
of
effect.
and
minimum,
appropriate notice to the
moving for decertification,
the
in
lawsuits has had considerable detrimental
decertification
for
—
to
guard
the
interests
of
the
As it is clear that no benefit will
inure to the plaintiff representatives or classes in this case,1
1
See
Eisen v.
Carlisle
& Jacquelin,
391
F.2d
555,
567,
570
(2d
Cir.
1968) (noting that courts should be "reluctant to permit actions to proceed
where they are not likely to benefit anyone but the lawyers who bring them"
and further stating that if "financial considerations prevent the plaintiff
from furnishing individual notice to [class] members, there may prove to be
no alternative other than the dismissal of the class suit").
and Plaintiffs concede the futility of moving forward,
the Court
finds decertification to be appropriate.2
III.
Based
upon
the
CONCLUSION
foregoing,
the
Court
Motion to Decertify the plaintiff classes.
ORDER
December,
ENTERED
at Augusta,
Georgia,
GRANTS
Defendants'
(Doc. 247.)
this
/
day of
2014.
HONORABLE
J.
UNITED STATEST DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA
2
Although
Rule
23
authorizes
the
Court
to
provide
notice
of
this
action's change in status to absent class members, the Court finds that no
notice of decertification is required here as no notice of certification was
given.
See Hervey v. City of Little Rock, 787 F.2d 1223, 1230 (8th Cir.
1986) (noting that "notice of the decertification is required only to the
extent necessary to reach those potential class members who received notice
of certification and relied on being included in the class"); Daisy Mtn. Fire
Dist. v. Microsoft Corp., 547 F. Supp. 2d 475, 485 (D. Md. 2008); Seglison v.
Plum Tree, Inc. , 61 F.R.D. 343, 346 (E.D. Pa. 1973).
But see Birmingham
Steel Corp. v. Term. Valley Auth. , 353 F.3d 1331, 1339 (11th Cir. 2003) (in
decertifying a class on the ground of inadequate representation by the named
plaintiff, a district court "must ensure that notification of this action be
sent to the class members,
statute of
Reynolds v.
Ala.
(M.D.
May
Ala.
in order that the latter can be alerted that the
limitations has begun to run again on their individual claims") ;
Dep't of Transp.,
1,
2012),
R&R
No.
adopted,
CV-85-T-665-N,
No.
2012 WL 3100768,
2:85CV665-MHT,
2012
WL
at
*2
3101283
(M.D. Ala. July 30, 2012) (citing Birmingham Steel for the proposition that
those class members who submitted Participation Forms or Opt-out Forms should
be provided notice
of decertification,
but declining to require
sent to those class members who did not return either form).
notice
be
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