Glenn J. Webber v. Esquire Deposition Services, LLC , 439 F. App'x 849 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 31, 2011
No. 10-12943
JOHN LEY
________________________
CLERK
D. C. Docket No. 1:09-cv-21538-PCH
GLENN J. WEBBER,
individually and on behalf of all others similarly situated,
Plaintiff-Appellant,
versus
ESQUIRE DEPOSITION SERVICES, LLC,
a Hobart West Company,
a.k.a. Esquire, an Alexander Gallo Company,
ALEXANDER GALLO COMPANY,
Defendant-Appellee.
________________________
No. 10-12944
________________________
D. C. Docket No. 1:09-cv-21539-PCH
PUBLIC CONCEPTS, LLC,
individually and on behalf of all others similarly situated,
Plaintiff-Appellant,
versus
VERITEXT CORP.,
d.b.a Veritext Florida Court Reporting Company,
Defendant-Appellee.
________________________
No. 10-12998
________________________
D. C. Docket No. 1:09-cv-21537-PCH
DR. CHARLES J. ADELSON,
individually and on behalf of all others similarly situated,
JACQUELYN LAUZERIQUE,
individually and on behalf of all others similarly situated,
Plaintiffs-Appellants,
versus
U.S. LEGAL SUPPORT, INC.,
KLEIN, BURY, REIF, APPLEBAUM & ASSOCIATES, INC,
d.b.a. U.S. Legal Support,
Defendants-Appellees.
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________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(August 31, 2011)
Before TJOFLAT and MARTIN, Circuit Judges, and DAWSON,* District Judge.
PER CURIAM:
In this consolidated case, Glenn Webber, Public Concepts, LLC, Charles
Adelson and Jacquelyn Lauzerique (“Appellants”) appeal the district court’s
denial of their requests for class certification under Federal Rule of Civil
Procedure 23(b)(3). Appellants filed separate suits in the district court against
several court-reporting firms alleging that their billing practices violated the
Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat.
§ 501.201, and unjustly enriched the firms. After having had the benefit of oral
argument and after thorough review of the parties’ briefs, we affirm.
We review a district court’s class certification order only for abuse of
discretion. See Fitzpatrick v. Gen. Mills, Inc., 635 F.3d 1279, 1282 (11th Cir.
*
Honorable Robert T. Dawson, United States District Judge for the Western District of
Arkansas, sitting by designation.
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2011). “[A]n abuse of discretion occurs if the judge fails to apply the proper legal
standard or to follow proper procedures in making the determination, or makes
findings of fact that are clearly erroneous.” Birmingham Steel Corp. v. TVA, 353
F.3d 1331, 1335 (11th Cir. 2003) (quotation marks and alterations omitted). “It is
irrelevant whether this Court would have granted [class] certification.” Babineau
v. Fed. Express Corp., 576 F.3d 1183, 1189 (11th Cir. 2009). “As long as the
district court’s reasoning stays within the parameters of Rule 23's requirement for
certification of a class, the district court decision will not be disturbed.”
Fitzpatrick, 653 F.3d at 1282 (quotation marks omitted).
Rule 23(b)(3) requires that common questions of law and fact predominate
over issues affecting only individual members. Rule 23(b)(3) also requires that a
class action is superior to other available methods for adjudicating the
controversy. See Fed. R. Civ. P. 23(b)(3).
The district court did not abuse its discretion in denying Appellants’
motions for class certification. The district court discussed the difficulties
associated with identifying class members who fit Appellants’ proposed class
definition. In analyzing whether common questions of fact and law predominate,
the district court correctly noted that FDUTPA does not require individualized
proof of subjective reliance. See Fitzpatrick, 635 F.3d at 1283 (explaining that a
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plaintiff asserting a FDUTPA claim “need not show actual reliance on the
representation or omission at issue”). The court highlighted, however, how
differences in the circumstances under which putative class members purchased
transcripts from the court-reporting firms create many individualized factual and
legal issues with respect to the FDUTPA claim. Further, this Court has noted that
“common questions will rarely, if ever, predominate” in an unjust enrichment
claim. See Vega v. T-Mobile, Inc., 564 F.3d 1256, 1274 (11th Cir. 2009). In light
of the individualized questions of fact and law and manageability concerns, the
district court did not abuse its discretion in denying class certification.
AFFIRMED.
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