Steve Simms v. Jerral Jones , 836 F.3d 516 ( 2016 )


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  •       Case: 15-10242          Document: 00513671038        Page: 1   Date Filed: 09/09/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    No. 15-10242                   September 9, 2016
    Lyle W. Cayce
    Clerk
    BRUCE IBE; DEAN HOFFMAN; ROBERT FORTUNE; JASON MCLEAR
    Plaintiffs - Appellants
    v.
    JERRAL WAYNE JONES, also known as Jerry Jones; BLUE & SILVER,
    INCORPORATED; DALLAS COWBOYS FOOTBALL CLUB, LIMITED;
    JWJ CORPORATION; COWBOYS STADIUM, L.P.;
    COWBOYS STADIUM GP, L.L.C.; NATIONAL FOOTBALL LEAGUE,
    Defendants - Appellees
    ---------------------------------------
    KEN LAFFIN, Individually and On Behalf Of All Others Similarly Situated;
    DAVID WANTA, Individually and On Behalf Of All Others Similarly
    Situated; REBECCA BURGWIN, Individually and On Behalf Of All Others
    Similarly Situated,
    Plaintiffs - Appellants
    v.
    NATIONAL FOOTBALL LEAGUE; COWBOYS STADIUM GP, L.L.C.;
    COWBOYS STADIUM, L.P.; DALLAS COWBOYS FOOTBALL CLUB,
    LIMITED; JWJ CORPORATION
    Defendants - Appellees
    Case: 15-10242       Document: 00513671038     Page: 2   Date Filed: 09/09/2016
    No. 15-10242
    Appeal from the United States District Court
    for the Northern District of Texas
    Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.
    EDITH H. JONES, Circuit Judge:
    Plaintiffs-Appellants (“Appellants”) purchased tickets to Super Bowl
    XLV, but were either displaced from their seats, relocated, or had an
    obstructed view of the field. The majority of affected ticketholders settled with
    the National Football League (the “NFL”). Appellants, however, elected to sue,
    alleging various claims relating to breach of contract and fraud. One group of
    Appellants sought to certify three separate class actions. Most of Appellants’
    claims were dismissed before trial, and class certification was denied. Seven
    individual Appellants went to trial against the NFL and prevailed on breach
    of contract, but not on fraudulent inducement claims. The impetus for this
    appeal seems to be the denial of class certification, but Appellants also contest
    the court’s elimination, by dismissal or summary judgment, of several claims.
    We AFFIRM the judgment.
    BACKGROUND
    Some will remember Super Bowl XLV as a close game between two
    legendary franchises, the Green Bay Packers and the Pittsburgh Steelers.
    Others will recall the unexpected ice storm that blanketed the DFW Metroplex
    the week of the game. Yet the memories of others will involve a multi-issue
    seating fiasco inside one of the nations’ most celebrated venues—Cowboys
    Stadium. 1 This story began back when the North Texas Bid Committee (the
    1   Presently known as AT&T Stadium.
    2
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    No. 15-10242
    “Committee”) submitted its bid to host Super Bowl XLV. Although Cowboys
    Stadium had not been built, the Committee billed the venue as a new state-of-
    the-art stadium capable of holding as many as 100,000 fans.
    In preparation for the game, the Committee and the NFL entered into a
    stadium license agreement, which provided that the Committee would bear the
    responsibility of installing temporary seating to bring the minimum capacity
    up to 93,221. The agreement provided that the temporary seats be of a suitable
    standard commensurate with the quality and standards of the NFL Super
    Bowl viewing experience, including appropriate sightlines and access to
    concessions stands and restrooms.     The agreement also required that all
    temporary seating be installed and approved by January 30, 2011 (one week
    before the game).
    Cowboys Stadium contracted Seating Solutions to install approximately
    13,000 temporary seats for the game.          The NFL hired Populous, an
    architectural design firm, to review and evaluate the installation plans. After
    Seating Solutions initially submitted its temporary seating plans, Populous
    noted, inter alia, several sightline issues. As a result, over 1,000 seats were
    marked as having a “restricted view.” Additional seats were removed from the
    plans in early January during the quality control process.
    Installation of the temporary seating began in the second week of
    January 2011. On January 30, the deadline for temporary seat installation,
    seats were yet to be installed or approved by the local safety authorities.
    Installation continued the week before the game and additional crews were
    brought to help Seating Solutions complete the work. The work was still
    ongoing at noon on Super Bowl Sunday. Ultimately, not all of the seats were
    ready. Approximately 400 ticketholders were left without seats, another 850
    or so ticketholders were relocated to seats in other parts of the stadium, and
    roughly 2,000 ticketholders were delayed in reaching their seats.
    3
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    No. 15-10242
    The NFL apologized for the seating debacle and offered compensation to
    all ticketholders who were displaced, relocated, or delayed. 2 Nevertheless, two
    class action lawsuits were filed in the Northern District of Texas against the
    NFL and the Cowboys franchise defendants (the “Cowboys”).                       After
    consolidation, Appellants’ complaint identified three putative classes: (1) the
    “Displaced Class,” consisting of all ticketholders who were left without seats;
    (2) the “Relocated/Delayed Class,” consisting of all ticketholders who were
    relocated to a different seat or were significantly delayed in getting to their
    seats; and (3) the “Obstructed View Class” consisting of all ticketholders who
    were assigned seats with obstructed views of the field, the video board, and/or
    the stadium, but whose tickets were not marked as a restricted view seat. In
    their first amended complaint, Appellants raised claims for breach of contract,
    fraudulent inducement, fraudulent concealment, negligent misrepresentation
    by affirmative misrepresentations, and negligent misrepresentation by
    concealment, and negligence. In addition, three of the Appellants alleged
    Deceptive Trade Practices Act (“DTPA”) violations by all Appellees.
    The NFL responded by moving to dismiss all the tort claims on the basis
    of Texas’s “economic loss rule,” which bars recovery in tort for economic losses
    resulting from a party’s failure to perform under a contract. The NFL also
    urged that the remaining claims for fraudulent inducement were not pled with
    specificity under Fed. R. Civ. P. 9(b). The Cowboys moved to dismiss all claims
    against them because they had no contractual relationship with the
    Appellants.
    The district court granted in part the NFL’s motion to dismiss and
    dismissed the Cowboys defendants.             The court dismissed with prejudice
    2  According to the NFL, approximately 90% of the displaced fans and 70% of the
    relocated or delayed fans ultimately accepted the NFL’s settlement offers and signed a
    release of all claims.
    4
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    No. 15-10242
    Appellants’ claims of fraudulent concealment and negligent misrepresentation
    against the NFL as barred by the economic loss rule. The court held that
    Appellants’ theory of fraudulent inducement as to the seats that were not
    completed by game day was not plausible because the NFL had nothing to gain
    by tricking fans into purchasing tickets that it did not plan on having available.
    Quite the contrary, efforts to install the seats were ongoing until hours before
    the game.       The district court accordingly dismissed the Displaced and
    Relocated ticketholders’ fraudulent inducement claims with prejudice. 3 The
    court dismissed the Cowboys, who owed no duty to Appellants because the
    Cowboys were not a party to the contracts between Appellants and the NFL.
    Subsequently, the court denied Appellants’ motion for class certification.
    With respect to the Displaced Class, the court found certification inappropriate
    because Appellants failed to show that the proposed class satisfied Fed. R. Civ.
    Pro. 23(a)’s numerosity requirement, and because individual damages issues
    predominated over the common legal issue of liability.
    Concerning the Relocated Class, the court denied certification because
    individual issues predominated over the common issues of contract
    interpretation.     The court stated that whether a ticketholder received a
    replacement seat of “less quality” than his original seat could not be decided
    on a class-wide basis because every seat is unique and each class member
    would need to prove individual damages.
    Similarly, the court determined that liability and damages for the
    Obstructed View Class would require predominantly individualized inquiries
    3  Additionally, the court dismissed the named ticketholders’ DTPA claims with
    prejudice because, as members of the Displaced Class, they lacked standing to assert claims
    for failure to disclose that certain seats had obstructed views. The district court, however,
    dismissed without prejudice claims for failure to disclose as to other potential ticketholders
    who had an obstructed view seat.
    5
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    No. 15-10242
    regarding the extent of the obstruction, if any, and each class member’s
    individual damages.         The court also found that this class’s fraudulent
    inducement claim required resolution of predominant individual liability
    issues: the alleged nature of the misstatement or omission and Appellants’
    individual reliance.
    The district court next granted the NFL’s motion for summary judgment
    as to Appellants’ breach of contract and fraudulent inducement claims based
    on obstructed views of the video board. The court found that there was no
    contract for an unobstructed view of the video board nor any ambiguity in the
    ticket term “a spectator seat for the game.” And because Appellants pointed
    to no evidence outside of the ticket terms that imposed a duty on the NFL to
    provide an obstructed view of the video board, the district court rejected
    fraudulent inducement claims as a matter of law.
    The parties proceeded to trial on the remaining claims: the breach of
    contract claims of three displaced ticketholders, two relocated ticketholders,
    and two obstructed-view ticketholders, and the fraudulent inducement claims
    of two obstructed-view ticketholders. 4 On the seventh day of the trial, the
    district court granted the NFL’s motion for a directed verdict on Appellants’
    request for punitive damages because no reasonable jury could find fraud by
    clear and convincing evidence.
    On March 12, 2015, the jury returned a verdict in favor of the
    ticketholders on their breach of contract claims and in favor of the NFL on the
    remaining fraudulent inducement claims. The jury awarded damages ranging
    from $5,670 to $22,000. The ticketholders timely appealed.
    4The negligence claims against the NFL were pleaded in the alternative to Appellants’
    breach of contract claims.
    6
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    No. 15-10242
    DISCUSSION
    Appellants challenge nearly every dispositive decision by the district
    court: (1) the dismissal of the Cowboys and fraud-related claims; (2) summary
    judgment on obstructed-view claims; and (3) the denial of class certification.
    Appellants also take issue with denial of a jury instruction and the court’s
    directed verdict on punitive damages. We address these issues in sequence.
    A. Dismissal of the Cowboys and Fraud-related Claims
    This court reviews motions to dismiss pursuant to Rule 12(b)(6) de novo,
    “accepting all well-pleaded facts as true and viewing those facts in the light
    most favorable to the plaintiff.” Toy v. Holder, 
    714 F.3d 881
    , 883 (5th Cir.
    2013). “To survive a motion to dismiss, a complaint must contain sufficient
    factual matter, accepted as true, to ‘state a claim to relief that is plausible on
    its face.’” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009) (quoting Bell Atl. Corp. v.
    Twombly, 
    550 U.S. 544
    , 570 (2007)).
    1. Claims against the Cowboys.
    Under Texas law, “a party generally must be a party to a contract before
    it can be held liable for a breach of the contract.” Hoffman v. AmericaHomeKey,
    Inc., 
    23 F. Supp. 3d 734
    , 739 (N.D. Tex. 2014) (citing Ostrovitz & Gwinn, LLC
    v. First Specialty Ins. Co., 
    393 S.W.3d 379
    , 387 (Tex. App.—Dallas 2012, no
    pet.)).    To establish contract formation, a party must prove “an offer and
    acceptance and a meeting of the minds on all essential terms.” Principal Life
    Ins. Co. v. Revalen Dev., LLC, 
    358 S.W.3d 451
    , 454-55 (Tex. App.—Dallas 2012,
    pet. denied).
    The district court dismissed the breach of contract claims against the
    Cowboys because Appellants made no plausible allegations that the Cowboys
    were anything more than third-party vendors of tickets to an NFL event.
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    No. 15-10242
    On appeal, Appellants first argue that dismissal of their breach of
    contract claim against the Cowboys—and of their tort claims premised on the
    existence of contracts with the Cowboys—was improper. They contend that
    they pled sufficient facts, based on the sale invoices of game tickets and
    parking sold by the Cowboys to permit a plausible inference that one or more
    of the Cowboys defendants were parties to the ticket contracts. In support of
    this position, Appellants cite cases 5 holding that invoices can constitute
    contracts between parties to a sale.
    The cases are inapposite, because the invoices to which they refer
    contained additional terms relating to third parties. The Super Bowl tickets,
    in contrast, reference the Cowboys’ name solely to identify the stadium. The
    Cowboys delivered NFL’s tickets and sold parking. Although Appellants make
    additional allegations suggesting that the Cowboys were more than just a
    third-party vendor, the terms of the ticket are unambiguous. The ticket states:
    “[a]dmission may be refused or ticketholder ejected at the sole discretion of the
    National Football League.” Because Appellants have presented no authority
    supporting that a third-party vendor with limited responsibility is also
    responsible for the performance of the express ticket terms, Appellants’
    argument that the Cowboys are liable for their tort claims fails. 6
    5Hawkins v. Frick-Reid Supply Corp., 
    154 F.2d 88
    , 88-89 (5th Cir. 1946); Chesapeake
    Operating, Inc. v. Whitehead, No. C-10-301, 
    2011 WL 4372486
    , at *5 (S.D. Tex. Sept. 19,
    2011).
    6 The Appellants also argue that the Cowboys and the NFL were agents of one another,
    and thus Appellants were free to sue either or both of them for breach of contract. This
    argument was not presented to the district court. Appellants urge the court to infer from
    their complaint a breach of contract agency theory. We decline to do so and thus consider
    Appellants agency argument waived. See Celanese Corp. v. Martin K. Eby Const. Co.,
    
    620 F.3d 529
    , 531 (5th Cir. 2010)) (“Review of a Rule 12(b)(6) dismissal is, by its very nature,
    limited to the allegations and theories set forth in the complaint that the district court had
    before it when granting the motion to dismiss.”); Hogan v. City of Hous., 
    819 F.2d 604
    (5th
    Cir. 1987) (reviewing dismissal under Rule 12(b)(6), “we consider only the pleadings and
    accept them as true”)
    8
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    2. Displaced ticketholders’ fraudulent inducement claims.
    Under Texas law, the elements of common-law fraud are: (1) a material
    misrepresentation, (2) which was false, and (3) which was either known to be
    false when made or was asserted without knowledge of the truth, (4) which
    was intended to be acted upon, (5) which was relied upon, and (6) which caused
    injury.   DeSantis v. Wackenhut Corp., 
    793 S.W.2d 670
    , 688 (Tex. 1990).
    “Fraudulent inducement is a distinct category of common-law fraud that
    shares the same elements but involves a promise of future performance made
    with no intention of performing at the time it was made.” Zorrilla v. Aypco
    Constr. II, LLC, 
    469 S.W.3d 143
    , 153 (Tex. 2015).
    Fed. R. Civ. P. 9(b) requires that “[i]n alleging fraud . . . a party must
    state with particularity the circumstances constituting fraud.” The complaint
    must thus set forth specific facts supporting an inference of fraudulent intent.
    Melder v. Morris, 
    27 F.3d 1097
    , 1102 (5th Cir. 1994).
    In dismissing the Displaced and Relocated Ticketholders’ fraudulent
    inducement claims, the district court held:
    Without alleging facts supporting the allegation that Defendants
    did not intend to construct the temporary seats for which tickets
    were sold, Plaintiffs cannot recover on a theory of fraudulent
    inducement as to temporary seats that were not completed and
    approved by game day. . . . The Court finds that Plaintiffs’ theory
    of fraudulent inducement as to temporary seating is not plausible.
    Challenging the dismissal, Appellants contend that they were not
    required to allege that the NFL had a specific intent not to perform the ticket
    contract, but only needed to allege that the NFL recklessly made a promise to
    perform. Appellants mistakenly cite Custom Leasing, Inc. v. Tex. Bank & Trust
    Co. of Dall., 
    516 S.W.2d 138
    , 143 (Tex. 1974), a case involving fraudulent
    misrepresentations, not fraudulent inducement. Fraudulent inducement, as
    the district court understood, rests on a misrepresentation made with the
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    intent to deceive and no intention of performing the act at the time the promise
    was made. Arete Partners, L.P. v. Gunnerman, 
    594 F.3d 390
    , 394 (5th Cir.
    2010). Appellants’ recklessness allegation was insufficient.
    Alternatively, Appellants argue that they plausibly pled Appellees’
    specific intent to defraud.    In support of their contention, they point to
    statements made by Seating Solutions in a press release dated January 27,
    2011, claiming that they had created a terrific fan experience in every way
    maximizing safety, comfort and sight-line; a statement made by Jerry Jones
    that, due to brisk sales, he wanted to print more tickets; and numerous
    statements related to the allegation that Jones was unabashed in his desire to
    set the Super Bowl attendance record. They also point to facts showing that
    the NFL wanted to maximize profit and “wanted to avoid a public relations
    debacle before the game.” Finally, they argue that the NFL had knowledge
    from which it could be inferred that the seats would not be completed by game
    day, but failed to inform ticketholders.
    None of these allegations suggests an intent not to perform at the time
    the ticket contracts were sold.       Indeed, given the frantic last-minute
    installation of seats and potential adverse publicity from intentional non-
    performance, an inference of fraudulent inducement is untenable.
    3. Fraudulent concealment and negligent misrepresentation claims.
    The district court dismissed Appellants’ fraudulent concealment and
    negligent misrepresentation claims holding that they were foreclosed by the
    economic loss rule.    Under Texas law, the independent injury rule—also
    referred to as the economic loss rule—precludes recovery in tort when the loss
    complained of is the subject matter of a contract between the parties. See Sw.
    Bell Tel. Co. v. DeLanney, 
    809 S.W.2d 493
    , 494 (Tex. 1991). In DeLanney, the
    Texas Supreme Court explained:
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    If the defendant’s conduct—such as negligently burning down a
    house—would give rise to liability independent of the fact that a
    contract exists between the parties, the plaintiff’s claim may also
    sound in tort. Conversely, if the defendant’s conduct—such as
    failing to publish an advertisement—would give rise to liability
    only because it breaches the parties’ agreement, the plaintiff’s
    claim ordinarily sounds only in contract.
    
    Id. In determining
    whether a claim can be brought as a tort, consideration
    must be given to “the source of the defendant’s duty to act (whether it arose
    solely out of the contract or from some common-law duty) and the nature of the
    remedy sought by the plaintiff.” Crawford v. Ace Sign, Inc., 
    917 S.W.2d 12
    , 13
    (Tex. 1996).
    Challenging the dismissal, Appellants argue that their claims fell within
    the well-recognized exception to the economic loss rule: “if a plaintiff presents
    legally sufficient evidence on each of the elements of a fraudulent inducement
    claim, any damages suffered as a result of the fraud sound in tort” because “the
    legal duty not to fraudulently procure a contract is separate and independent
    from the duties established by the contract itself.” Formosa Plastics Corp. USA
    v. Presidio Eng’rs & Contractors, Inc., 
    960 S.W.2d 41
    , 46-47 (Tex. 1998).
    Because there is no plausible case for fraudulent inducement, this exception
    carries no weight. Moreover, in tallying damages like travel costs, Appellants
    alleged no damages independent from those resulting from the breach of
    contract. The economic loss rule bars these claims. 7 See TIB--The Indep.
    BankersBank v. Canyon Cmty. Bank, 
    13 F. Supp. 3d 661
    , 671 (N.D. Tex. 2014).
    7  Appellants make no new arguments to defend their fraud-based DTPA claims, which
    are infirm for the reasons detailed in reference to the other fraud-related claims.
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    B. Summary Judgment on Obstructed View Claims
    Summary judgment motions are reviewed de novo, using the same
    standard as the district court: viewing “all facts and evidence in the light most
    favorable to the non-moving party.” Amerisure Mut. Ins. Co. v. Arch Specialty
    Ins. Co., 
    784 F.3d 270
    , 273 (5th Cir. 2015). Summary judgment is appropriate
    if the record discloses “no genuine dispute as to any material fact and the
    movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
    1. Contract claims based on an obstructed view of the video board.
    Under Texas law, “the interpretation of an unambiguous contract is a
    question of law for the court to decide.” Gonzalez v. Denning, 
    394 F.3d 388
    ,
    392 (5th Cir. 2004). Courts are to “give contract terms their plain and ordinary
    meaning unless the instrument indicates the parties intended a different
    meaning.” Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 
    294 S.W.3d 164
    , 168 (Tex. 2009). “If a written contract is so worded that it can be given a
    definite or certain legal meaning, then it is not ambiguous.” Nat’l Union Fire
    Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 
    907 S.W.2d 517
    , 520 (Tex. 1995)
    (per curiam). “If, however, the language of a policy or contract is subject to two
    or more reasonable interpretations, it is ambiguous.” 
    Id. Appellants argue
    that the ticket contract, which promised the
    ticketholder “a spectator seat for the game,” is ambiguous. They first contend
    that the language cannot be given a definite or certain legal meaning because
    it is well known that at Cowboys’ Stadium, the video board is very much part
    of the game-viewing experience.
    We disagree. The ticket speaks for itself: “a spectator seat for the game”
    is a spectator seat for the Super Bowl game played on the field. Further, the
    interpretation offered by Appellants is not reasonable. As noted by the district
    court, if the term “a spectator seat for the game” were interpreted to include
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    the football game displayed on the video board, every ticketholder would have
    a breach of contract claim if the video board malfunctioned, even if he had a
    full view of the field.    The unambiguous term of the contract entitling
    ticketholders to “a spectator seat for the game” was not breached by an
    obstructed view of the video board.
    2. Fraudulent inducement claims based on an obstructed view of the
    video board.
    “As a general rule, a failure to disclose information does not constitute
    fraud unless there is a duty to disclose the information.” Bradford v. Vento,
    
    48 S.W.3d 749
    , 755 (Tex. 2001). Therefore, “silence may be equivalent to a
    false representation only when the particular circumstances impose a duty on
    the party to speak and he deliberately remains silent.” 
    Id. Whether such
    a
    duty exists is a question of law. 
    Id. The district
    court dismissed Appellants’ claims for lack of evidence that
    the ticket terms imposed a duty on the NFL to disclose that the view of the
    video board was obstructed.
    As just noted, the NFL bore no contractual obligation to provide seats
    with a view of the video board. The tickets themselves were not misleading.
    Consequently, the premise of Appellants’ argument—that the NFL had a duty
    to disclose that it knew that prior affirmative statements on the tickets
    suggesting there were no obstructed views was false or misleading—fails. Cf.
    Shangong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 
    607 F.3d 1029
    ,
    1035 (5th Cir. 2010) (internal quotation marks and citations omitted) (“a duty
    to speak arises between non-fiduciaries when one party learns later that his
    previous affirmative statement was false or misleading”). Neither the NFL nor
    the ticket contract made reference to the video board.
    Appellants also rely on this court’s holding in Union Pac. Res. Grp, Inc.
    v. Rhône–Poulenc, Inc., 
    247 F.3d 574
    , 586 (5th Cir. 2001); “A duty to speak
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    arises by operation of law when . . . one party knows that the other party is
    relying on a concealed fact, provided that the concealing party also knows that
    the relying party is ignorant of the concealed fact and does not have an equal
    opportunity to discover the truth[.]” This argument is unavailing for three
    reasons. First, Union Pacific was decided before the Texas Supreme Court
    stated in Bradford that Texas has “never adopted” the rule recognizing a
    general duty to disclose facts in a commercial 
    setting. 48 S.W.3d at 755-56
    ;
    Coburn Supply Co. v. Kohler Co., 
    342 F.3d 372
    , 377 (5th Cir. 2003). Second,
    Appellants present no evidence to suggest that the NFL knew that Appellants
    were relying on the alleged concealed fact. Third, by its nature, a fraudulent
    inducement claim cannot be premised on alleged post-contractual conduct.
    Appellants were not fraudulently induced to buy Super Bowl tickets thinking
    they would see the game on the video board.
    C. Denial of Class Certification
    This court reviews a denial of class certification for abuse of discretion
    and the legal questions implicated by the denial are reviewed de novo. In re
    Rodriguez, 
    695 F.3d 360
    , 364 (5th Cir. 2012). “Implicit in this deferential
    standard is a recognition of the essentially factual basis of the certification
    inquiry and of the district court’s inherent power to manage and control
    pending litigation.”    In re Monumental Life Ins. Co., 
    365 F.3d 408
    , 414
    (5th Cir. 2004) (quoting Allison v. Citgo Petroleum Corp., 
    151 F.3d 402
    , 408
    (5th Cir. 1998)).
    Rule 23 governs whether a proposed class falls within the limited
    exception to “the usual rule that litigation is conducted by and on behalf of the
    individual named parties only.” Califano v. Yamasaki, 
    442 U.S. 682
    , 700-01
    (1979).    Four prerequisites must be met by all classes: numerosity,
    commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a).
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    “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc.
    v. Dukes, 
    564 U.S. 338
    , 350 (2011). The party seeking class certification bears
    the burden of demonstrating that the requirements of Rule 23 have been met.
    O’Sullivan v. Countrywide Home Loans, Inc., 
    319 F.3d 732
    , 737-38 (5th Cir.
    2003).
    Under Rule 23(a)(1), certification is only appropriate where “the class is
    so numerous that joinder of all members is impracticable.” “[A] plaintiff must
    ordinarily demonstrate some evidence or reasonable estimate of the number of
    purported class members.”       Zeidman v. J. Ray McDermott & Co., Inc.,
    
    651 F.2d 1030
    , 1038 (5th Cir. 1981). This court, however, has repeatedly noted
    that “the number of members in a proposed class is not determinative of
    whether joinder is impracticable.” In re TWL Corp., 
    712 F.3d 886
    , 894 (5th Cir.
    2013) (quoting Mullen v. Treasure Chest Casino, LLC, 
    186 F.3d 620
    , 624 (5th
    Cir. 1999)). Rather, “a number of facts other than the actual or estimated
    number of purported class members may be relevant to the ‘numerosity’
    question; these include, for example, the geographical dispersion of the class,
    the ease with which class members may be identified, the nature of the action,
    and the size of each plaintiff’s claim.” 
    Zeidman, 651 F.2d at 1038
    .
    Pursuant to Rule 23(a)(2), there must be “questions of law or fact
    common to the class.” The Supreme Court has explained that “[c]ommonality
    requires the plaintiff to demonstrate that the class members ‘have suffered the
    same injury.’” 
    Dukes, 564 U.S. at 349
    (quoting General Tel. Co. of Sw. v.
    Falcon, 
    457 U.S. 147
    , 156, (1982)).      Dissimilarities among class members
    should be considered to determine whether a common question is truly
    presented. 
    Id. at 359.
    Even a single common question of law or fact can suffice
    to establish commonality, 
    id., so long
    as resolution of that question “will resolve
    an issue that is central to the validity of each one of the [class member’s] claims
    in one stroke,” 
    id. at 350.
                                            15
    Case: 15-10242     Document: 00513671038     Page: 16   Date Filed: 09/09/2016
    No. 15-10242
    Rule 23(a)(3) provides that “the claims or defenses of the representative
    parties [must also be] typical of the claims or defenses of the class.” The
    typicality inquiry rests “less on the relative strengths of the named and
    unnamed plaintiffs’ cases than on the similarity of legal and remedial theories
    behind their claims.” Jenkins v. Raymark Indus. Inc., 
    782 F.2d 468
    , 472 (5th
    Cir. 1986).
    Moreover, Rule 23(a)(4) requires the party seeking certification to show
    that “the representative parties will fairly and adequately protect the interests
    of the class.” This standard “requires the class representatives to possess a
    sufficient level of knowledge and understanding to be capable of ‘controlling’ or
    ‘prosecuting’ the litigation.” Berger v. Compaq Comput. Corp., 
    257 F.3d 475
    ,
    482-83 (5th Cir. 2001).
    Nonetheless, class certification is permitted only if “the court finds that
    the questions of law or fact common to class members predominate over any
    questions affecting only individual members, and that a class action is superior
    to other available methods for fairly and efficiently adjudicating the
    controversy.”   Fed. R. Civ. P. 23(b)(3).    The predominance inquiry “tests
    whether proposed classes are sufficiently cohesive to warrant adjudication by
    representation.” Amchem Prods., Inc. v. Windsor, 
    521 U.S. 591
    , 623 (1997).
    “In order to ‘predominate,’ common issues must constitute a significant part of
    the individual cases.” 
    Mullen, 186 F.3d at 626
    (quoting 
    Jenkins, 782 F.2d at 472
    ). Determining whether legal issues common to the class predominate also
    requires that this court inquire how the case will be tried. 
    O’Sullivan, 319 F.3d at 738
    . “This entails identifying the substantive issues that will control the
    outcome, assessing which issues will predominate, and then determining
    whether the issues are common to the class.” 
    Id. Generally, individualized
    damages calculations will not preclude a
    finding of predominance. See Tyson Foods, Inc. v. Bouaphakeo, 
    136 S. Ct. 1036
    ,
    16
    Case: 15-10242     Document: 00513671038     Page: 17    Date Filed: 09/09/2016
    No. 15-10242
    1045 (2016)(quoting 7AA C. Wright, A. Miller & M. Kane, Federal Practice and
    Procedure §1788, pp. 123-34 (3d ed. 2005) (footnotes omitted) (“[I]t uniformly
    has been held that differences among the members [of a class] as to the amount
    of damages incurred does not mean that a class action would be
    inappropriate.”)).   Nothing in this general language from Tyson Foods,
    however, alters this court’s holdings that class treatment “may not be suitable
    where the calculation of damages is not susceptible to a mathematical or
    formulaic calculation, or where the formula by which the parties propose to
    calculate individual damages is clearly inadequate.” Bell Atl. Corp. v. AT&T
    Corp., 
    339 F.3d 294
    , 307 (5th Cir. 2003). “Where the plaintiffs’ damage claims
    focus almost entirely on facts and issues specific to individuals rather than the
    class as a whole, the potential exists that the class action may degenerate in
    practice into multiple lawsuits separately tried.          In such cases, class
    certification is inappropriate.” 
    O’Sullivan, 319 F.3d at 744-45
    .
    Finally, to determine whether a class action is the superior method for
    adjudicating the controversy, the district court must compare and “assess the
    relative advantages of alternative procedures for handling the total
    controversy.” In re TWL 
    Corp., 712 F.3d at 896
    (quoting Fed. R. Civ. P. 23(b)(3)
    Advisory Committee’s Note to 1966 Amendment). The superiority analysis is
    fact-specific and varies depending on the circumstances of each case.          
    Id. Among the
    factors for the court to consider are “(A) the interests of members
    of the class in individually controlling the prosecution or defense of separate
    actions; (B) the extent and nature of any litigation concerning the controversy
    already begun by or against class members; (C) the desirability or
    undesirability of concentrating the litigation of the claims in the particular
    forum; and (D) the likely difficulties encountered in managing a class action.”
    Amchem Prods., 
    Inc., 521 U.S. at 615-616
    .
    17
    Case: 15-10242    Document: 00513671038     Page: 18   Date Filed: 09/09/2016
    No. 15-10242
    1. The Displaced Class.
    The district court denied certification of the Displaced Class after
    holding that Appellants had failed to demonstrate that the class was so
    numerous that joinder of all members was impracticable. Alternatively, the
    district court found that individual issues of damages predominated over the
    one remaining common legal issue—whether the ticket terms require the NFL
    to refund the face value of the ticket, or whether purchasers are entitled to
    damages generally recoverable for a breach of contract. Because the proposed
    class fails the numerosity test, we need not discuss the court’s predominance
    conclusions concerning this class.
    On numerosity, Appellants argue that even accepting the NFL’s
    estimate that the Displaced Class consisted of 42 class members as opposed to
    55, a presumption of impracticability was raised. In support of their argument,
    Appellants cite to Mullen as adopting the proposition suggested in Newberg on
    Class Actions: a class of forty or more members should raise the presumption
    that joinder is 
    impracticable. 186 F.3d at 624
    . But Mullen also stated that
    “the number of members in a proposed class is not determinative of whether
    joinder is impracticable.” 
    Id. This court
    has repeatedly counseled that “courts
    must not focus on sheer numbers alone.” In re TWL 
    Corp., 712 F.3d at 894
    (quoting Pederson v. La. State Univ., 
    213 F.3d 858
    , 868 n.11 (5th Cir. 2000)).
    In fact, Appellants’ counsel are currently pursuing a “mass” action for 237
    individual Super Bowl XLV ticketholders in the same district court. Greco v.
    Jones, No. 3:13-CV-1005-M (N.D. Tex.). We find no clear error in the district
    court’s determination that Appellants failed to meet the threshold numerosity
    requirement.
    2. The Relocated Class.
    The district court denied certification of the Relocated Class after
    holding that individual issues predominated over common issues. The court
    18
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    No. 15-10242
    found that the common issue of contract interpretation—whether the NFL
    breached the ticket terms by relocating any ticketholder—was overwhelmed
    by two individualized issues: a front-end inquiry to determine membership in
    the class—i.e., those who received inferior seats—and a back-end inquiry to
    determine individual damages.
    Appellants assert that individual issues did not predominate over
    common issues and repeat the contention, inter alia, that different amounts of
    damages    do   not     preclude   class   certification.   These   arguments    are
    unconvincing. There was no record of what replacement seat was received by
    each relocated ticketholder.       Whether a class member actually received a
    lesser-quality seat and how the relocated seat affected damages raised complex
    and individualized issues that could not be resolved by common evidence.
    As was discussed above, this circuit recognizes that individual
    damages issues can preclude class certification. See Bell Atl. 
    Corp., 339 F.3d at 307
    ; 
    O’Sullivan, 319 F.3d at 744-45
    ; see also 
    Allison, 151 F.3d at 413
    (“[A]s
    claims for individually based money damages begin to predominate, the
    presumption of cohesiveness decreases while the need for enhanced procedural
    safeguards…increases.”); cf. Bertulli v. Indep. Ass’n of Cont’l Pilots, 
    242 F.3d 290
    , 298 (5th Cir. 2001)(finding that common issues predominated despite the
    need for individualized damages where “virtually every issue prior to damages
    is a common issue.”).
    In In re Deepwater Horizon, 
    739 F.3d 790
    , 816 (5th Cir. 2014), on which
    Appellants rely, this court upheld a finding of predominance despite diverse
    damages because “even without a common means of measuring damages, [the]
    common issues [of fact and law] nonetheless predominated over the issues
    unique to individual claimants.” In contrast here, we agree with the district
    court that individual damages issues predominated over the common issue of
    19
    Case: 15-10242      Document: 00513671038      Page: 20   Date Filed: 09/09/2016
    No. 15-10242
    breach because ticketholders incurred vastly different expenses, which would
    essentially necessitate mini-trials to adjudicate damages for each ticketholder.
    It is also no support for certification that another circuit has held that
    “[t]here are a number of management tools available to a district court to
    address any individualized damages issues that might arise in a class action.”
    In re Visa Check/MasterMoney Antitrust Litig., 
    280 F.3d 124
    , 141 (2d Cir.
    2001).    This observation was not made in the context of a predominance
    analysis, but in the discussion of the “manageability” of the potential class
    action. 
    Id. Moreover, this
    court has made clear that “[a] district court cannot
    manufacture predominance through the nimble use of” management tools.
    Castano v. Am. Tobacco Co., 
    84 F.3d 734
    , 745 n.21 (5th Cir. 1996). Nor does
    any authority require the district court to use case management tools within
    its discretion.
    Accordingly, the district court did not abuse its discretion in refusing to
    certify this class. See Hesling v. CSX Transp., Inc., 
    396 F.3d 632
    , 638 (5th Cir.
    2005).
    3. The Obstructed-View Class.
    The district court denied certification of the Obstructed-View Class,
    concluding that individualized inquiries predominated about the extent of the
    obstruction and the personal damages alleged by each class member. The court
    also held that the fraudulent inducement claims required resolving
    predominant individual issues.        Specifically, the alleged misstatement or
    omission, and each Appellants’ reliance on any such misstatement or omission.
    Appellants first contend that the district court erred in holding that an
    individualized inquiry to determine the extent of obstruction—or the
    materiality of the breach—was required because common evidence showed
    that any obstructed view of the field was material.           In support of their
    contention, Appellants argue that tickets marked “restricted view” were sold
    20
    Case: 15-10242    Document: 00513671038      Page: 21     Date Filed: 09/09/2016
    No. 15-10242
    at the reduced price of $600, regardless of the extent of the obstruction.
    Further, even if the extent of the obstruction was relevant, it could be proved
    by common evidence in the form of sightline projections and analysis
    performed by Populous and Seating Solutions.
    We are not persuaded. The fact that the NFL sold all tickets marked
    “restricted view” at the same price does not by itself establish that any
    obstruction constituted a material breach of the ticket contract. Under Texas
    law, materiality of a party’s breach of contract is determined by considering
    five factors, including “the extent to which the injured party will be deprived
    of the benefit which he reasonably expected.” Mustang Pipeline Co. v. Driver
    Pipeline Co., 
    134 S.W.3d 195
    , 199 (Tex. 2004) (quoting Restatement (Second)
    of Contracts § 241 (1981)). In this case, a jury could reasonably find that a
    minor obstruction, while a breach of the ticket contract, was not material
    because the ticketholder could still fully enjoy the game.
    The district court rejected Appellants’ contention that they could use
    computer modeling and sightline studies to establish the existence and extent
    of any obstruction; we agree. The court observed that while it may be possible
    for such a program to identify seats with obstructed views, this does not
    eliminate the need to evaluate the extent of obstruction actually experienced
    by individual class members; even if Appellants hired an expert to present the
    models, the jury would still need to determine if every identified seat was
    obstructed.
    With respect to the fraudulent inducement claim, Appellants contend
    that the district court erred in holding that reliance was an individual issue.
    Appellants rely on Affiliated Ute Citizens of Utah v. United States, 
    406 U.S. 128
    , 153-54 (1972), a case involving primarily a failure to disclose under the
    Securities Exchange Act, where the court held that proof of reliance was not a
    prerequisite to recovery. The court stated: “[a]ll that is necessary is that the
    21
    Case: 15-10242        Document: 00513671038          Page: 22      Date Filed: 09/09/2016
    No. 15-10242
    facts withheld be material in the sense that a reasonable investor might have
    considered them important in the making of [a] decision.” 
    Id. Recognizing this
    fact, this court has confined the presumption to SEC Rule 10b-5 claims based
    on fraudulent omission. 8 No Texas cases appear to cite Affiliated Ute or to
    apply the Ute presumption. 9
    Moreover, as the NFL notes, presuming class-wide reliance would be
    particularly inappropriate under the circumstances of this case. The district
    court found, and Appellants do not dispute, that the evidence suggested that
    different ticketholders had different expectations regarding their seats—some
    likely relied on a lack of notice that their views would be restricted when they
    purchased their seats, but others purchased seats without obtaining any
    information about them. Because expectations varied, the materiality of the
    omission may have significantly differed from person to person, undermining
    the very premise of the Ute presumption.
    8 See Griffin v. Box, No. 94-10348, 
    1991 WL 255296
    , at *16 n. 17 (5th Cir. May 2, 1996)
    (“Ute presumption applies only to rule 10b-5 actions based primarily upon omissions rather
    than misrepresentations.”) (internal quotations and citations omitted); Smith v. Ayres,
    
    845 F.2d 1360
    , 1363 (5th Cir. 1988) (“[T]he first step in determining whether the Affiliated
    Ute presumption applies is to identify whether the plaintiff’s claim is founded on a fraudulent
    omission. This in turn depends upon which of the three subsections in Rule 10b-5 forms the
    basis for the plaintiff's complaint.”); Finkel v. Docutel/Olivetti Corp., 
    817 F.2d 356
    , 359 (5th
    Cir. 1987) (in Affiliated Ute, “the Supreme Court held that the 10b-5 plaintiff does not have
    to present positive proof of reliance in all securities fraud settings.”).
    9  Appellants point to one district court case purporting to extend the application of the
    Ute presumption outside of the federal securities context. In In re Great S. Life Ins. Co. Sales
    Practices Litig., 
    192 F.R.D. 212
    , 220 (N.D. Tex. 2000), the court acknowledged that “Ute
    involved an interpretation of a federal securities statute.” The court, however, cited another
    district court decision for the general proposition that, in Ute, “the ‘Supreme Court held that
    positive proof of reliance is unnecessary in cases involving primarily a failure to disclose.’”
    
    Id. (quoting Steiner
    v. Southmark Corp., 
    734 F. Supp. 269
    , 275 (N.D. Tex. 1990)).
    Importantly, Steiner is itself a federal securities case involving a claim brought under Rule
    10b-5, and thus does not support the extension of the Ute presumption to claims of common
    law fraud. 
    Id. at 272.
    22
    Case: 15-10242    Document: 00513671038       Page: 23   Date Filed: 09/09/2016
    No. 15-10242
    Because the Ute presumption does not apply, the only issues common to
    the Obstructed-View Class were breach of contract and whether the NFL had
    a duty to disclose any obstructed views of the field or the video board. The
    district court held these issues were outweighed by individual issues of
    materiality, damages, and reliance. The court did not abuse its discretion in
    determining that individual issues predominated and that class certification
    was inappropriate. See Crutchfield v. Sewerage & Water Bd. Of New Orleans,
    No. 15-30709, slip op. at 6 (5th Cir. July 13, 2016 (“[A] district court’s expertise
    in case management and overseeing trials is particularly useful in making the
    predominance and superiority inquiries of Rule 23(b)(3), which require
    envisioning what a class trial would look like”).
    D. Jury Instruction
    This court reviews under the abuse of discretion standard a district
    court’s refusal to provide a requested jury instruction. Cooper Indus., Inc. v.
    Tarmac Roofing Sys., Inc., 
    276 F.3d 704
    , 714 (5th Cir. 2002). This court will
    reverse the district court’s decision “only if the requested instruction (1) was a
    substantially correct statement of the law, (2) was not substantially covered in
    the charge as a whole, and (3) concerned an important point in the trial such
    that the failure to instruct the jury on the issue seriously impaired the
    defendant’s ability to present a given defense.” 
    Id. “A promise
    to do an act in the future is actionable fraud when made with
    the intention, design and purpose of deceiving, and with no intention of
    performing the act.” Spoljaric v. Percival Tours, Inc., 
    708 S.W.2d 432
    , 434
    (Tex. 1986).    In other words, a breach of contract is only actionable as
    fraudulent inducement if it is “coupled with a showing that the promisor never
    intended to perform under the contract.” Kevin M. Ehringer Enters., Inc. v.
    McData Servs. Corp., 
    646 F.3d 321
    , 325 (5th Cir. 2011).
    23
    Case: 15-10242        Document: 00513671038          Page: 24      Date Filed: 09/09/2016
    No. 15-10242
    The district court gave a jury instruction stating the elements of
    fraudulent inducements as pronounced by the Texas Supreme Court in
    
    DeSantis, 793 S.W.2d at 688
    . Appellants do not challenge that instruction.
    Rather, they challenge the district court’s refusal to give an additional
    instruction on fraud through failure to disclose. 10 Appellants assert that by
    refusing to give the proposed instruction, the district court prevented the jury
    from considering whether the NFL committed fraud by failing to disclose
    material facts concerning the obstructed view of the playing field.
    The sole tort claim remaining when the case went to trial was a claim of
    fraudulent inducement, and the district court gave a correct, complete
    instruction on that claim. Appellants cite to Kajima Int’l, Inc. v. Formosa
    Plastics Corp., USA, 
    15 S.W.3d 289
    (Tex. App.—Corpus Christi 2000, no pet.),
    to argue that their fraudulent inducement claim can be proven with fraudulent
    conduct occurring after the execution of a contract. The court in Kajima,
    however, made clear that the consideration of post-execution fraud evidence
    was necessary because the defendant made post-execution promises in order
    to induce the plaintiff into continuing its performance. 
    Id. Conversely here,
    there was no continued performance induced by post-
    execution fraud; there was only the single ticket contract—a promise of future
    performance given in exchange for the ticket price. Texas law is clear that a
    promise of future performance is actionable as fraudulent inducement when it
    10 Proposed Jury Instruction No. 18 read: As to plaintiffs [INSERT PLAINTIFFS’
    NAMES HERE], you may also conclude that the NFL committed fraud through a failure to
    disclose. The elements of fraud through a failure to disclose must be proven by a
    preponderance of the evidence: First, the NFL failed to disclose a material fact within the
    knowledge of the NFL; Second, the NFL knew that the plaintiff at issue is ignorant of the
    fact and does not have an equal opportunity to discover the truth; Third, the NFL intended
    to induce the plaintiff at issue to take some action by failing to disclose the fact, and Fourth,
    the plaintiff at issue suffered some injury as a result of acting without knowledge of the
    undisclosed fact.
    24
    Case: 15-10242       Document: 00513671038          Page: 25     Date Filed: 09/09/2016
    No. 15-10242
    is “made with the intention, design and purpose of deceiving and with no
    intention of performing the act.” 
    Spoljaric, 708 S.W.2d at 434
    . Because the
    district court gave a correct instruction on fraudulent inducement, the court
    did not abuse its discretion in declining to give the proposed jury instruction. 11
    CONCLUSION
    We find no error in the district court’s 12(b)(6), Rule 56, and directed
    verdict rulings. We also hold that the district court did not abuse its discretion
    in denying to give Appellants’ proposed jury instruction. Finally, in denying
    class certification, the district court carefully applied the class certification
    principles to each class, and we agree with its conclusions. Accordingly, we
    AFFIRM.
    11 Appellants briefly argue that the district court erred in granting a directed verdict
    on their punitive damages request (based on their obstructed view of the video board fraud
    claim). Because the court properly dismissed the fraud claim on summary judgment, this
    argument is meritless.
    The district court did grant in part the NFL’s Rule 50 Motion for Judgment as a
    Matter of Law, holding that no reasonable jury could find fraud by clear and convincing
    evidence and thus Appellants were not entitled to exemplary damages as a matter of law.
    That ruling, however, is not expressly appealed, and any challenge to it is waived. See Yohey
    v. Collins, 
    985 F.2d 222
    , 225 (5th Cir. 1993).
    25
    

Document Info

Docket Number: 15-10242

Citation Numbers: 836 F.3d 516

Filed Date: 9/9/2016

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (46)

in-re-visa-checkmastermoney-antitrust-litigation-wal-mart-stores-inc , 280 F.3d 124 ( 2001 )

Gonzalez v. Denning , 394 F.3d 388 ( 2004 )

Hannah Finkel v. Docutel/olivetti Corporation , 817 F.2d 356 ( 1987 )

Bertulli v. Independent Ass'n of Continental Pilots , 242 F.3d 290 ( 2001 )

Pederson v. Louisiana State University , 213 F.3d 858 ( 2000 )

In Re: Monumental , 365 F.3d 408 ( 2004 )

Cooper Industries, Inc. v. Tarmac Roofing Systems, Inc. , 276 F.3d 704 ( 2002 )

Celanese Corp. v. Martin K. Eby Const. Co., Inc. , 620 F.3d 529 ( 2010 )

Arete Partners, L.P. v. Gunnerman , 594 F.3d 390 ( 2010 )

Hawkins v. Frick-Reid Supply Corporation , 154 F.2d 88 ( 1946 )

Melder v. Morris , 27 F.3d 1097 ( 1994 )

Kevin M. Ehringer Enterprises, Inc. v. McData Services Corp. , 646 F.3d 321 ( 2011 )

Allison v. Citgo Petroleum Corp. , 151 F.3d 402 ( 1998 )

Union Pacific Resources Group, Inc. v. Rhône-Poulenc, Inc. , 247 F.3d 574 ( 2001 )

Fed. Sec. L. Rep. P 98,265 Fred Zeidman and Steven ... , 651 F.2d 1030 ( 1981 )

monica-bauer-hesling-guardian-and-next-friend-of-minors-hannah-buck-and , 396 F.3d 632 ( 2005 )

Wanda Jenkins v. Raymark Industries, Inc. , 782 F.2d 468 ( 1986 )

Andrew L. Smith v. Jack R. Ayres , 845 F.2d 1360 ( 1988 )

Leslie Wayne Yohey v. James A. Collins, Director Department ... , 985 F.2d 222 ( 1993 )

Bell Atlantic Corp. v. AT&T Corp. , 339 F.3d 294 ( 2003 )

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