Bond v. Cricket Communications, LLC

Filing 60

MEMORANDUM AND ORDER denying 52 Motion to Stay Pending Appeal by Michael A Scott. Signed by Judge Marvin J. Garbis on 12/12/2017. (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
similarly situated
Plaintiffs
vs.

Defendant
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CRICKET COMMUNICATIONS, LLC

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CIVIL ACTION NO. MJG-15-923

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MEMORANDUM & ORDER RE: STAY

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The Court has before it Proposed Intervenor Michael Scott’s
Motion for Stay Pending Appeal [ECF No. 52] and the materials
related thereto.

The Court has reviewed the materials provided

by the parties and finds that a hearing is not needed.

I.

RELEVANT BACKGROUND1
Plaintiff, Tim Bond (“Bond”) filed this putative class

action against Defendant Cricket Communications, LLC (“Cricket”)2
on May 8, 2015.

1

On September 24, 2015, Michael A. Scott

For a more detailed factual and procedural background, see
Memorandum and Order Re: Intervene [ECF No. 47].
2
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
former company.

(“Scott”) filed a putative class action against Cricket in the
Circuit Court for Baltimore City.

Scott’s lawsuit was removed

to this Court (GLR-15-3330), remanded back to state court,
appealed, and then remanded back to federal court.

During the

pendency of Scott’s appeal, the state court granted Scott’s
motion for class certification, which is now subject to a motion
to vacate in federal court. Also pending in Scott’s lawsuit is a
motion to vacate the state court’s order denying Cricket’s
motion to compel arbitration, a motion to remand the case back
to state court, a motion to stay proceedings in part, and a
motion to compel arbitration.
In August 2017, Bond and Cricket mediated a nationwide
class settlement in principle.

Scott asserts that the

settlement is not as favorable to the plaintiffs as the
settlement that Scott could obtain.
Scott’s attempt to intervene in Bond’s lawsuit was denied
as untimely on October 26, 2017.

Scott has appealed the Court’s

denial of his intervention and by the instant motion, seeks a
stay pending this appeal.3
Bond and Cricket have subsequently filed a Motion for
Preliminary Approval of Settlement [ECF No. 56], but request
that the Court rule on the motion only after an order is entered
3

The Fourth Circuit has granted Scott’s request to expedite
case processing and tentatively scheduled oral argument during
the March 20-23, 2018 session. Order, ECF No. 59-1.

2

in Scott’s lawsuit voiding or vacating the state-court order
certifying the class of Maryland citizens.

The settlement

agreement includes a clause that gives Cricket the unilateral
right to terminate the settlement if the Maryland-certified
class is not vacated.

Therefore, the rendering of a decision in

the Scott lawsuit can be considered a practical prerequisite to
the effectiveness of the Bond-Cricket Settlement Agreement.

II.

LEGAL STANDARD
“A stay is not a matter of right,” but rather is “an

exercise of judicial discretion,” and the propriety “is
dependent upon the circumstances of the particular case.” Nken
v. Holder, 556 U.S. 418, 433 (2009)(quoting Virginian Ry. Co. v.
United States, 272 U.S. 658, 672-73 (1926)).

The standards for

granting a stay closely resemble the standards for the grant of
a preliminary injunction: “(1) whether the stay applicant has
made a strong showing that he is likely to succeed on the
merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Id. at 434
(quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)); see
also Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970)(stating
that the four factors are the law of this circuit).

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“The first two factors of the traditional standard are the
most critical.”

Nken, 556 U.S. at 434.

The party requesting

the stay must demonstrate more than a “mere possibility” of
relief or irreparable harm. Id. at 434-35 (citations omitted).
“The party requesting a stay bears the burden of showing that
the circumstances justify an exercise of [the court’s]
discretion.” Id. at 433-34 (citations omitted).

III. DISCUSSION
A.

Probability of Scott’s Success on Appeal

Scott argues that an October 26, 2017 decision from the
U.S. Court of Appeals for the Eleventh Circuit,4 which reversed a
district court’s denial of a motion to intervene, is materially
identical to the circumstances herein, and therefore his appeal
is likely to succeed.

The Eleventh Circuit case, however, is

not similar to the instant case. Nor was its underlying motion
to intervene denied on the basis of timeliness.

See Tech.

Training Assocs., Inc. v. Buccaneers Ltd. P’ship, 874 F.3d 692,
694 (11th Cir. 2017).

In Tech Training, a lawyer with the firm

representing the named plaintiff left the law firm and joined a
new law firm, which then filed a competing case with the
4

Tech. Training Assocs., Inc. v. Buccaneers Ltd. P’ship, 874
F.3d 692, 694 (11th Cir. 2017) was issued on the same day as
this Court’s order denying Scott’s motion to intervene, so the
Court did not have an opportunity to analyze the implications of
its reasoning prior to issuing its decision.

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settling defendant, “deliberately underbid[ding] the movants in
an effort to collect attorney’s fees while doing a fraction of
the work . . . .” 874 F.3d at 697.

Under those circumstances,

the Eleventh Circuit court found that the movants met the
requirements to intervene as of right, and timeliness was never
a disputed factor.

Id. at 695, 698.

In the instant case, the Court reviewed the threshold
timeliness factors, found that Scott’s intervention motion was
untimely, and exercised its discretion to deny the motion.
Memorandum and Order Re: Intervene 16, ECF No. 47.

The Court

finds that the reasons for denying Scott’s motion remain valid
and that the Tech Training case does not provide any new support
for Scott’s argument to the contrary.
For Scott to succeed on his appeal, he must establish that
his motion was timely and that the Court abused its discretion.
See, e.g., Alt v. U.S. E.P.A., 758 F.3d 588, 591 (4th Cir. 2014)
(“The determination of timeliness is committed to the sound
discretion of the trial court and will not be disturbed on
appeal absent an abuse of that discretion.”).
Scott has not made a strong showing that the motion was
timely or that the Court abused its discretion by denying the
motion.

Hence, Scott has not carried the burden to establish

that he is likely to succeed on the merits.

Therefore, the

absence of such a showing weighs against a stay.

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B.

Irreparable Injury to Scott

The Court is not convinced that Scott will suffer
irreparable injury from the denial of a stay.

Scott argues that

he will be harmed by the instant case proceeding because he will
not be able to fulfill his duties to the class he represents.
However, Bond and Cricket have requested that the Court not
consider preliminary approval of the settlement until there has
been a ruling on the motion to vacate Scott’s state class
certification.

Should the motion to vacate class certification

be granted, Scott will no longer have any duties to fulfill.
Alternately, should the motion to vacate class certification be
denied, Cricket will withdraw from the settlement, and the
instant case will proceed to resolution.
Scott can protect his interests by exercising his right to
participate and object to the settlement in the fairness hearing
if he does not opt-out of the nationwide class. Scott could,
alternatively, choose to opt-out of the settlement and continue
to pursue his separate litigation against Cricket.
The second, irreparable injury, factor weighs against a
stay.

C.

Harm to Bond and Cricket

There appears to be little risk of prejudice to the
existing parties by granting a stay pending Scott’s appeal.

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Certainly, a delay in the orderly resolution of the case can be
considered undesirable.

However, even under the proposed

settlement, the resolution of the case is delayed until after
resolution of the motion to vacate the state class certification
in Scott’s lawsuit.

If the class certification is vacated, the

Court may provide preliminary approval, and, if it does so, the
case must proceed through the class settlement timetable.

The

final approval process is proposed to occur 115 days after
preliminary approval.

Briefly stated, the parties do not

presently anticipate the settlement to be approved and effective
in the near future.
Finally, the Fourth Circuit has granted Scott’s request to
expedite the pending appeal.
The third factor, harm to the parties from a stay, does not
weigh strongly in favor of — or against — a stay.

D.

Public Interest

Scott argues that the public interest is best served by a
stay in order to avoid wasting resources on class action
litigation that does not have adequate representation.
Certainly, the public interest is served by ensuring that the
class is adequately represented.

Of course, determining if

there is adequate representation is part of the class action
settlement approval process that this Court will undertake.

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A

stay would not expedite, and could delay, the Court’s
determination regarding whether the proposed settlement is fair,
adequate, and a reasonable resolution of the claims of a
nationwide class.

The fourth factor tends to weigh against a

stay.

E.

Resolution

Scott has demonstrated no more than a mere possibility of
success in his appeal and has not shown that he will suffer
irreparable harm in the absence of a stay.

He has not met his

burden to show the circumstances that would justify a stay.
Accordingly, the Court shall deny Scott’s motion to stay the
instant case pending his appeal.

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IV.

CONCLUSION
For the foregoing reasons:
1.

Proposed Intervenor Michael Scott’s Motion for
Stay Pending Appeal [ECF No. 52] is DENIED.

2.

The Court shall consider in due course the
pending Motion for Preliminary Approval of
Settlement, and for Approval of the Form, Manner
and Administration of Notice [ECF No. 56].

3.

The parties shall notify the Court within seven
days of the decision on Defendant Cricket
Communications, LLC’s Motion to Vacate State
Court Class Certification Order [ECF No. 43] in
Scott v. Cricket Communications, LLC, GLR-153330.

SO ORDERED, on Tuesday, December 12, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

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