Bond v. Cricket Communications, LLC
MEMORANDUM AND ORDER denying 42 Motion of Michael Scott to Intervene; the Court shall defer ruling on Cricket's 34 Motion to Compel Arbitration; Status Report due 11/2/2017. Signed by Judge Marvin J. Garbis on 10/26/2017. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TIM BOND, on his own behalf
and on behalf of all others
CRICKET COMMUNICATIONS, LLC
CIVIL ACTION NO. MJG-15-923
MEMORANDUM AND ORDER RE: INTERVENE
The Court has before it Michael Scott’s Motion to Intervene
[ECF No. 42] and the materials submitted relating thereto.
Court has considered the materials submitted by the parties and
finds a hearing unnecessary.
Plaintiff, Tim Bond (“Bond”) filed this putative class
action against Defendant Cricket Communications, LLC (“Cricket”)1
on May 8, 2015.
On September 24, 2015, Michael A. Scott
(“Scott”) filed a putative class action against Cricket in the
Bond’s initial Class Action Complaint [ECF No. 1] was filed
on March 31, 2015 against AT&T Inc. (“AT&T”), but Bond
substituted Cricket as Defendant in the First Amended Class
Action Complaint [ECF No. 3] on May 8, 2015. AT&T announced its
agreement to acquire Cricket Communications Inc. on July 12,
2013. After acquiring Cricket Communications Inc., AT&T formed
Cricket Communications, LLC to carry on the business of the
Circuit Court for Baltimore City.
Scott’s lawsuit was removed
to this Court, remanded back to state court, appealed, and then
remanded back to federal court. Scott now seeks to intervene in
Bond’s lawsuit on his own behalf and on behalf of the certified
class he represents.
A more detailed discussion of the factual
and procedural background for both cases will provide relevant
context for the instant determination.
After its acquisition by AT&T in 2013, Cricket offered for
sale and sold cellphones3 that operate exclusively on a 3G CDMA4
However, AT&T and Cricket had decided to
discontinue the CDMA network and require Cricket customers to
use AT&T’s GSM5 cellular network.
The cellphones cost hundreds
of dollars each and were marketed as including “unsurpassed
Class Action Compl. ¶¶ 26-28, ECF No. 2,
GLR-15-3330 (“Scott Compl.”).
But the cellphones sold by
Cricket cannot be transferred from the CDMA network to the GSM
The cellphones were also “locked” by Cricket so they
The “facts” herein are as alleged by Plaintiff and are not
necessarily agreed upon by Defendants.
Both Bond and Scott refer specifically to Samsung Galaxy S4
CDMA refers to Code Division Multiple Access technology.
GSM refers to Global Systems for Mobile technology.
cannot be used on another cellphone service provider’s network.
In other words, the cellphones became useless and worthless.
Bond initially filed his lawsuit on March 31, 2015 against
AT&T, but amended his complaint on May 8, 2015 to substitute
Cricket as the Defendant.
Class Action Compl., ECF No. 1, First
Am. Class Action Compl. (“FAC”), ECF No. 3.
Bond seeks to
represent a class defined as “[a]ll persons nationwide during
the period July 12, 2013 to the present who purchased a CDMA
handset from Cricket or through its authorized agents.”
In the FAC, Bond alleged six causes of action:
Count I – Breach of Implied Warranty of
Count II – Fraudulent Concealment
Count III – Money Had and Received/Unjust Enrichment
Count IV – Negligent Misrepresentation
Count V – Maryland Consumer Protection Act
Count VI – Fraud
On July 13, 2015, Cricket moved to compel arbitration and
stay proceedings pending the outcome of arbitration.
Compel, ECF No. 15.
Judge Quarles of this Court granted the
motion on January 12, 2016 and stayed the case pending the
outcome of arbitration.
Mem. Opinion and Order, ECF Nos. 18,
Neither Bond nor Cricket initiated arbitration.
year later, on December 9, 2016, Bond contacted Cricket’s
counsel to request consent for leave to amend the complaint.
After receiving no response, Bond contacted Cricket’s counsel
again on January 12, 2017 and was notified that Cricket would
On February 17, 2017, Bond filed a Motion
Requesting Leave to File Second Amended Class Action Complaint
[ECF No. 21], which added Count VII for Violations of the
Magnusson-Moss Warranty Act (“MMWA”).
Although Counts I through
VI remained in the proposed Second Amended Class Action
Complaint (“SAC”), Bond stated his understanding that those
causes of action were subject to arbitration but that he could
not be compelled to arbitrate the MMWA claim.
Mot. Leave 2-3,
ECF No. 21.
After the parties met and conferred concerning Bond’s
motion, on February 24, 2017, Bond and Cricket filed the
Stipulation Concerning Plaintiff’s Motion for Leave to File
Second Amended Complaint [ECF No. 26].
Therein, the parties
agreed to the following:
Bond agreed to seek leave to file his SAC solely to
pursue a new claim under the federal MMWA,
Bond agreed that it would respond to Cricket’s
intended new motion to compel arbitration only on the
grounds that the MMWA does not permit the claim to be
Bond agreed that he was bound to arbitrate Counts I
through VI and would not re-litigate any facts or
introduce any new evidence related to arbitration or
other subject and would not seek to reopen Counts I
Cricket agreed to not object to the stay being lifted
for the sole purpose of allowing Bond to pursue the
new MMWA claim.
The Court approved the Stipulation and granted Bond’s
request to file the SAC.
See ECF Nos. 27, 28, 29.
On May 2,
2017, Cricket filed a Motion to Compel Arbitration [ECF No. 34],
and Bond responded accordingly.
Bond and Cricket engaged Judge Benson Everett Legg (Ret.)
to mediate a class-wide settlement.
Negotiations were conducted
Legg Ltr., ECF No. 43-2.
The first mediation
session was held on May 5, 2017, followed by a second session by
telephone on August 2, 2017, and agreement in principle was
ultimately achieved on August 5, 2017.
letter was filed with this Court advising that a settlement
agreement in principle had been reached, which would resolve the
claims of a proposed nationwide class. Ltr., ECF No. 41.
letter, Cricket advised the Court:
Cricket will soon file a notice of related
case in Scott v. Cricket Communications,
LLC, No. 15-cv-3330 (D. Md.), identifying
Scott as related to this case. Because the
proposed nationwide class settlement in Bond
will cover all of the claims at issue in
Scott, Cricket intends to move for a partial
stay of proceedings in Scott.
The parties also requested that the Court defer ruling on
the pending motion to compel arbitration in Bond’s lawsuit.
On August 24, Scott filed the instant motion seeking to
intervene in this case “on behalf of himself and on behalf of
the certified class of Maryland citizens he represents . . . .”
Mot. 1, ECF No. 42.
The Motion is now ripe for decision.
Scott filed his lawsuit on September 24, 2015 in the
Circuit Court for Baltimore City.
Scott Compl. Scott defines
the class as “[a]ll Maryland citizens who, between July 12, 2013
and March 13, 2014, purchased a CDMA mobile telephone from
Cricket which was locked for use only on Cricket’s CDMA
network.” Id. at ¶ 51.
Scott raises a single claim for
violation of the Magnusson-Moss Warranty Act, 15 U.S.C. §§ 2301
et seq., stemming from alleged breaches of express warranties
and the implied warranties of merchantability and fitness for a
particular purpose. Id. ¶¶ 60–66.
On October 30, 2015, Cricket removed the case to federal
court under the Class Action Fairness Act (“CAFA”), averring
that “[r]ecords of Cricket’s sales indicate that Cricket sold at
least 50,000 CDMA mobile telephones that were shipped to and
activated in Maryland between July 12, 2013 and March 13, 2014.”
Notice of Removal 3, ECF No. 1, GLR 15-1330.
On November 20,
2015, Cricket notified the Court that the Bond lawsuit was a
Notice of Related Case, ECF No. 14, GLR-15-3330.6
On November 23, 2015, Scott filed a motion to remand the
case back to the Circuit Court for Baltimore City.
Remand, ECF No. 15, GLR-15-3330.
Scott argued that removal was
improper because Cricket had not used the proper class
definition to allege CAFA jurisdiction, i.e., Scott had proposed
a class limited to Maryland citizens only, but Cricket described
a class of “persons whose phones were shipped to and activated
in Maryland.” Mem. 9, ECF No. 15-1, GLR-15-3330.
16, 2015, Cricket filed its Motion to Compel Arbitration [ECF
No. 20, GLR-15-3330].7
Cricket followed up on December 2, 2015 with a Motion to
Relate Case [ECF No. 16, GLR-15-3330]. Scott filed a response
[ECF No. 17, GLR-15-3330] indicating that he had no objection to
assigning both cases to the same Judge but otherwise disagreed
that the cases were “related.”
On November 10, 2015, Scott had filed a Complaint
Petitioning to Stay Threatened Arbitration in the Circuit Court
for Baltimore County, Maryland. ECF No. 2, GLR-15-3759. On
December 9, 2015, Cricket removed that case to this Court and it
was filed as a related case to GLR-15-3330. ECF No. 1, GLR-153759. On December 2, 2015, Cricket moved to dismiss or stay the
related case in GLR-15-3759, and on December 21, 2015, Scott
filed a motion to remand the case back to state court.
On August 19, 2016, Judge Russell of this Court granted
Scott’s motions to remand and denied Cricket’s motions as moot.
Judge Russell determined that Cricket had failed to carry its
evidentiary burden to present sufficient facts to prove federal
jurisdiction because the proposed class includes only Maryland
citizens, but Cricket’s evidence pertained only to Maryland
Mem. Opinion 18, ECF No. 33, GLR-15-3330.
On August 29, 2016, Cricket filed a petition for permission
to appeal to the Fourth Circuit Court of Appeals.8
8, 2016, the Fourth Circuit Court of Appeals issued an Order
that deferred ruling on the petition pending briefing and
further consideration of the merits of the appeal.
No. 38, GLR-15-3330.9
After briefing and oral argument, the
Fourth Circuit issued its Judgment on July 28, 2017, vacating
the District Court’s judgment and remanding for further
Remand orders are generally not subject to appeal, but
there is a limited exception in CAFA cases. Under CAFA, “a
court of appeals may accept an appeal from an order of a
district court granting or denying a motion to remand a class
action to the State court from which it was removed if
application is made to the court of appeals not more than 10
days after entry of the order.” 28 U.S.C. § 1453(c)(1). If the
appeal is accepted, the court of appeals must “complete all
action on such appeal, including rendering judgment, not later
than 60 days after the date on which such appeal was filed,
unless an extension is granted” by agreement for any period of
time or for up to 10 days for good cause shown. § 1453(c)(2)(3).
A briefing schedule was issued in Appeal No. 16-2300, Scott
v. Cricket Communications, LLC, and the petition, No. 16-3051,
was placed in abeyance.
Judgment, ECF No. 39, GLR-15-3330.10
On the same
day, the Fourth Circuit also granted the petition for permission
Order, ECF No. 40, GLR-15-3330.
During the pendency of the appeal, Scott’s underlying case
moved forward in the Circuit Court for Baltimore City.
moved to lift the stay that had been imposed by agreement of the
parties, and the motion was granted on February 3, 2017. Cricket
filed a motion to compel arbitration in Baltimore City, and it
was denied on May 11, 2017.
Scott then filed the motion for
class certification, which was granted on June 9, 2017 as
[A]ll Maryland citizens who, between July
12, 2013 and March 13, 2014, purchased a
Code Division Multiple Access (“CDMA”)
mobile telephone from Cricket
Communications, LLC (“Cricket”),which was
locked for use only on Cricket’s CDMA
Mot. Mem 5, ECF No. 42-1. After the Fourth Circuit’s opinion was
issued, on July 28, 2017, Scott amended the complaint in
Baltimore City to include both the certified class of Maryland
citizens, and a putative nationwide class defined as:
All persons within the United States who,
between July 12, 2013 and March 13, 2014,
purchased a CDMA mobile telephone from
Cricket, which was locked for use only on
Cricket’s CDMA network.
In a published decision, Scott v. Cricket Communications,
LLC, 865 F.3d 189 (4th Cir. 2017).
Scott’s District Court lawsuit was reopened on August 9,
2017. On August 11, 2017, Cricket filed a renewed notice of
removal in GLR-15-3330, a motion to vacate the state court class
certification order, a motion to vacate the state court order
denying Cricket’s motion to compel arbitration, a motion to
compel arbitration, a motion to stay proceedings in part, and a
notice of Bond’s related lawsuit and that a settlement in
principle had been reached therein.
Also on August 11, 2017,
Scott petitioned the Fourth Circuit for a rehearing, which
stayed the mandate pending decision, and Scott filed a motion
for entry of Administrative Order Number 1, which would provide
potential class members notice of the lawsuit.
On August 25, 2017, the Fourth Circuit denied Scott’s
requested rehearing, and on September 5, 2017, the Fourth
Circuit issued its mandate.
On September 9, 2017, Scott filed a
motion to remand his case back to state court and to strike the
renewed notice of removal.
The parties have briefed their
motions, and all remain pending in GLR-15-3330.
Rule11 24 creates two intervention alternatives, both
subject to the filing of a “timely motion.”
Inc., 883 F.2d 281, 286 (4th Cir. 1989).
Gould v. Alleco,
The Rule distinguishes
between “Intervention of Right” pursuant to Rule 24(a), and
“Permissive Intervention” pursuant to Rule 24(b).
In addition to being timely, the Fourth Circuit has
explained that an intervenor must, under Rule 24(a)(2), satisfy
three additional requirements: (1) it must demonstrate a
sufficient interest in the subject matter of the underlying
action; (2) it has to prove that the interest would be impaired
if the intervention was not allowed; and (3) it must establish
that the interest is inadequately represented by existing
parties. Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th
Cir. 1999)(citations omitted).
Permissive intervention under Rule 24(b)(2) gives the court
discretion to grant intervention when an applicant “has a claim
or defense that shares with the main action a common question of
law or fact.”
Rule 24(b)(1)(B). “In exercising its discretion,
the court must consider whether the intervention will unduly
delay or prejudice the adjudication of the original parties’
Id. at (b)(3).
All “Rule” references herein are to the Federal Rules of
Scott moves to intervene as of right, and alternately
Under either alternative, the application for
intervention must be timely, although “[w]here intervention is
of right, ‘the timeliness requirement of Rule 24 should not be
as strictly enforced as in a case where intervention is only
permissive.’” Scardelletti v. Debarr, 265 F.3d 195, 203 (4th
Cir. 2001), rev’d on other grounds, Devlin v. Scardelletti, 536
U.S. 1 (2002)(quoting Brink v. DaLesio, 667 F.2d 420, 428 (4th
Both Bond and Cricket contend that Scott’s motion
for intervention is not timely.
In order to determine whether a motion to intervene is
sufficiently timely, a trial court in this Circuit assesses
factors including “how far the suit has progressed, the
prejudice that delay might cause other parties, and the reason
for the tardiness in moving to intervene.” Scardelletti, 265
F.3d at 203; Alt v. U.S. E.P.A., 758 F.3d 588, 591 (4th Cir.
A district court has wide discretion in determining what
is timely. Gould, 883 F.2d at 286.
“In a class action the
critical issue with respect to timeliness is whether the
proposed intervenor moved to intervene ‘as soon as it became
clear . . . that the interests of the unnamed class members
would no longer be protected by the named class
Hill v. W. Elec. Co., 672 F.2d 381, 386 (4th
Cir. 1982)(quoting United Airlines, Inc. v. McDonald, 432 U.S.
385, 394 (1977)).
The instant case has progressed to a settlement in
principle “that would resolve the claims of a proposed
Ltr. Aug. 11, 2017, ECF No. 41.
asserted in the letter that the proposed nationwide class
settlement would cover all of the claims at issue in Scott’s
Scott asserts that the filing of the letter was
the first time he became aware of an interest being at risk.
Scott contends that because he filed his motion to intervene
within 20 days of the letter, his motion is timely.
Scott, however, knew about Bond’s lawsuit no later than
November 20, 2015 when Cricket filed the Notice of Related Case
[ECF No. 14, GLR-15-3330] in Scott’s case.
stated that the allegations in the two complaints arise out of
the same events, and both cases raise warranty claims although
the causes of action are not identical.
The Notice points out
that the main difference is that Bond’s alleged class is
nationwide while Scott’s alleged class is limited to Maryland
Scott made no response until Cricket’s Motion to
Relate Case [ECF No. 16, GLR-15-3330], which was filed on
December 2, 2015.
In his Response [ECF No. 17, GLR-15-3330],
Scott stated that he had no objection to the case being assigned
to the same Judge, but disagreed that his lawsuit arises from
the same events as Bond’s because Scott’s complaint challenges
the sale of worthless cell phones to Maryland citizens only,
while the Bond lawsuit is a putative federal nationwide class
Scott added that the causes of action were not
duplicative since he alleged only an MMWA claim and Bond’s
lawsuit contained no MMWA claim.
Regardless, Bond’s case was
compelled to arbitration in January 2016, and Scott pursued
removing his case back to state court.
Since that time, Bond amended his Complaint to add an MMWA
Therefore, as of February 10, 2017, Scott knew, or
should have known, that Bond’s case included an MMWA cause of
action, and as of February 24, 2017, Scott knew, or should have
known, of the stipulation to lift the stay in Bond’s case in
order to litigate the MMWA claim.
Scott could have intervened
in February 2017, but chose to pursue his own case in state
court. Scott’s case has since been removed again to federal
court, and on July 28, 2017, Scott amended his own Complaint to
add a proposed nationwide class. Scott now faces motions to
vacate the state court class certification, to compel
The Court notes that having defined different classes does
not equate with whether the two cases were both arising out of
the same events. It is clear that both cases arise out of
Cricket’s sale of CDMA cellphones.
arbitration and to stay proceedings.
It was not until August
24, 2017, after notice of the proposed settlement in Bond’s
case, that Scott moved to intervene.
Scott argues that Bond’s case has barely been litigated
even though it is the older of the two cases.
But Bond’s case
has been through a formal arms-length settlement negotiation and
the parties reached a settlement in principle.
therefore, is near to final resolution, and there is no doubt
that intervention at this time will cause delay and potential
disruption of the negotiated settlement.
Scott does not adequately explain how his interests have
now become no longer protected. Scott expresses concern that
Cricket is engaging in a reverse auction, which can produce an
However, Scott’s stated objective of
protecting his interests, as well as the certified Maryland
class,13 can be satisfied by the opportunity to participate and
object to the settlement in the fairness hearing14 if he does not
opt-out of the nationwide class. Scott can also choose to opt13
There remains an open question of whether there will
continue to be a Maryland certified class since there is a
pending motion to vacate the state court decision that certified
A class action cannot be settled without the approval of
the Court after a hearing “and on finding that it is fair,
reasonable, and adequate.” Rule 23(e)(2). Scott will have the
opportunity to raise his concerns regarding collusion and
inadequacy of the settlement during the approval process.
out of the settlement and continue to pursue his separate
litigation against Cricket.
Further, it is logical for Cricket
to pursue settlement in the case with a nationwide class rather
than the case limited to Maryland citizens, so its actions do
not “smell” of targeting the most ineffectual attorneys or
seeking easy resolution.
Under the circumstances of this case, Scott could have, and
should have, acted sooner.
Upon review of the timeliness
factors, the Court finds that Scott’s intervention motion was
untimely and shall exercise its discretion to deny the motion.
Scott may, of course, file objections to the proposed settlement
in the ordinary course if and when preliminary approval of the
proposed settlement is granted.
Cricket’s and Bond’s oppositions argue that even if the
motion to intervene were considered timely, Scott has failed to
establish the remaining elements for intervention under Rule 24.
Because the Court determines that the motion is not timely, it
need not address herein the remaining elements.
The bottom line is that intervention is being denied but
Scott, as a class member, may participate in further proceedings
herein relating to the settlement reached by Bond and Cricket.
For the foregoing reasons:
Michael Scott’s Motion to Intervene [ECF No. 42]
The Court shall defer ruling on Cricket’s pending
Motion to Compel Arbitration [ECF No. 34] pending
Plaintiffs and Defendant shall proceed
expeditiously regarding the settlement of the
instant case and shall, by November 2, 2017,
provide a status report stating the dates for
further action regarding settlement approval
SO ORDERED, on Thursday, October 26, 2017.
Marvin J. Garbis
United States District Judge
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