Fox et al v. Transam Leasing, Inc. et al

Filing 237

MEMORANDUM AND ORDER granting 236 Motion to Dismiss. The action is hereby DISMISSED WITH PREJUDICE pursuant to Fed. R. Civ. P. 42(a)(2). All other pending motions, including Docs. 197, 207, 215, 225, 226, and 230 are DENIED AS MOOT. Signed by District Judge John W. Broomes on 10/03/2018. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CANDACE FOX; ANTHONY GILLESPIE;
CHARLES SCHRECKENBACH, Individually
and on behalf of a class of all others similarly
situated,
Plaintiffs,
v.

No. 12-2706-JWB

TRANSAM LEASING, INC.; TRANSAM
TRUCKING, INC.,
Defendants.

MEMORANDUM AND ORDER
This matter is before the court on Plaintiffs’ unopposed motion to dismiss. (Doc. 236.) For
the reasons stated below the motion is GRANTED.
The long history of this case is briefly summarized as follows. Plaintiffs’ initial complaint
alleged, among numerous other claims, that Defendants violated federal regulations by requiring
Plaintiffs and other independent truckers to pay a communications fee to enter lease agreements
with Defendants. The complaint included class action allegations under Fed. R. Civ. P. 23(b)(2),
for purposes of obtaining declaratory relief, and under Fed. R. Civ. P. 23(b)(3), for purposes of
recovering money damages. (Doc. 1 at 8-9.) Plaintiffs only moved for certification of a class under
Rule 23(b)(3), however, and the court subsequently certified a class action on the regulatory claim
pursuant to Fed. R. Civ. P. 23(b)(3). (Doc. 69 at 23; Doc. 80 at 7, n.1, 16.) The court also allowed
Plaintiffs to amend their complaint and approved a form of notice to the class. (Doc. 89).
The court later granted Plaintiffs’ motion for partial summary judgment on the regulatory
claim. (Doc. 134) In an interlocutory appeal, the Tenth Circuit ruled that the court correctly

concluded the communication fee violated federal regulations, such that the ruling “will support
the truckers’ [request] for … declaratory relief,” but Defendants were entitled to summary
judgment on the class action claim for damages because Plaintiffs failed to produce evidence of
damages. (Doc. 167 at 3.) Upon remand, and following the disposition of multiple other claims,
the court granted Plaintiffs’ motion for partial summary judgment, finding Plaintiffs were entitled
to a declaratory judgment that the imposition of the communication fee was a violation of the
regulations. (Doc. 187 at 8.)
The court then requested a status report to determine if final judgment should be entered,
but the parties could not agree upon a report. (Docs. 200, 201.) Meanwhile, Plaintiffs filed a motion
for attorneys’ fees (Doc. 197). Defendants then filed a notice of appeal to the Tenth Circuit. (Doc.
202.) The parties eventually resolved their dispute and the appeal was dismissed. (Doc. 229.)
Plaintiffs then moved in this court to withdraw their motion for attorneys’ fees and “that the case
be closed.” (Doc. 230.) The court subsequently held a status hearing to address concerns about
granting the motion or entering judgment without first notifying the class. See Fed. R. Civ. P.
23(c)(3) & 23(e).
After reviewing the history of the case, and Plaintiffs’ unopposed motion to dismiss, the
court is now satisfied that the motion to dismiss can be granted and judgment can be entered
without prior notice to the class. Plaintiffs’ claim for damages, which was certified under Rule
23(b)(3), was disposed of on the merits by the Tenth Circuit, and no aspect of that claim is subject
to Rule 23(e). The claim for declaratory relief was potentially a class action claim under Rule
23(b)(2), but was never certified for class action treatment. Even had it been certified, notice to
class members is not mandatory in a Rule 23(b)(2) claim, as Plaintiffs point out. See Skinner v.
Uphoff, 175 F. App’x 255, 258 (10th Cir. 2006) (district court did not abuse discretion by not

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requiring notice to members of (b)(2) class on claim for injunctive relief). At any rate, the absence
of certification on this claim means that no part of the claim for declaratory relief, or of the related
motion for attorneys’ fees, is subject to the notice requirements of Rule 23.
IT IS THEREFORE ORDERED this 3rd day of October, 2018, that Plaintiffs’ Unopposed
Motion to Dismiss (Doc. 236) is GRANTED, and the action is hereby DISMISSED WITH
PREJUDICE pursuant to Fed. R. Civ. P. 42(a)(2). All other pending motions, including Docs. 197,
207, 215, 225, 226, and 230 are DENIED AS MOOT.

___s/ John W. Broomes____________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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