Case 2:15-cv-00352-JRG Document 12 Filed 03/31/15 Page 1 of 26 PageID #: 693

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
SAMMY D. YORK, HENRY H.
)
HOLUBEC, JR., and GREGORY R. HAYES )
)
)
Plaintiffs,
)
)
)
)
)
v.
)
)
)
)
TEXAS A&M UNIVERSITY 12TH MAN
)
FOUNDATION a/k/a THE 12TH MAN
)
FOUNDATION,
)
)
Defendant.
)

No. 2:15-CV-00352
DEFENDANT TEXAS A&M UNIVERSITY
12TH MAN FOUNDATIONS (1) REPLY
TO PLAINTIFFS AMENDED JOINDER IN
MOTION TO DISMISS AND
(2) RESPONSE TO PLAINTIFFS
REQUEST FOR DISMISSAL WITHOUT
PREJUDICE PURSUANT TO
RULE 41(a)(2)

Otis Carroll (State Bar No. 03895700)

IRELAND, CARROLL & KELLEY, P.C.
6101 S. Broadway, Suite 500
Tyler, Texas 75703
Layne E. Kruse (State Bar No. 11742550)
Randall S. Richardson (State Bar No. 24027658)
Otway Denny (State Bar No. 05755500)
NORTON ROSE FULBRIGHT US LLP
1301 McKinney, Suite 5100
Houston, Texas 77010
Attorneys for Defendant Texas A&M University
12th Man Foundation a/k/a The 12th Man
Foundation

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... ii

SUMMARY OF ARGUMENT ..................................................................................................... 1
FACTS RELEVANT TO THIS MOTION .................................................................................... 1
1.

Plaintiffs file this case in the Eastern District of Texas ......................................... 1

2.

Plaintiffs re-file this case in the Southern District of Florida ................................ 3

3.

Plaintiffs are wasting judicial resources with their gamesmanship ....................... 7

ARGUMENT AND AUTHORITIES ............................................................................................ 8

1.

2.

This Court can determine there is no class before dismissing with

conditions ............................................................................................................... 9
A.

This Court has jurisdiction to determine there is no class ....................... 10

B.

This Court has authority to require that class allegations be

eliminated ................................................................................................. 10
(1)

The alleged class is not adequately defined ................................. 11

(2)

The alleged class does not satisfy the numerosity

requirement .................................................................................. 12

(3)

The alleged class does not satisfy the commonality or

typicality requirements................................................................. 13

(4)

Intra-class conflicts are inherent in the proposed class................ 14

The proposed conditions are proper under Rule 41(a)(2) .................................... 15

A.

This Court has jurisdiction to impose conditions on dismissal................ 16

B.

This Court has authority to impose conditions on dismissal ................... 16

C.

This Court has discretion to impose the proposed conditions ................. 18

PRAYER ...................................................................................................................................... 19

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TABLE OF AUTHORITIES
Page(s)
Cases
American Express Co. v. Italian Colors Restaurant,
133 S. Ct. 2304 (2013) .............................................................................................................18
Bell v. Cheswick Generating Station, Genon Power Midwest, L.P.,
No. 12-929, 2015 WL 401443 (W.D. Pa. Jan. 28, 2015) ........................................................10
Clark v. Lender Processing Servs.,
562 F. App'x 460 (6th Cir. 2014) .............................................................................................15
Conley v. Aetna Life Ins. Co.,
No. 99-10149, 213 F.3d 635, 2000 WL 554056 (5th Cir. Apr. 11, 2000) ...............................16
Cunningham Charter Corp. v. Learjet, Inc.,
592 F.3d 805 (7th Cir. 2010) ...................................................................................................10
Dennis Melancon, Inc. v. City of New Orleans,
703 F.3d 262 (5th Cir. 2012) .....................................................................................................6
Garcia v. Boyar & Miller, P.C.,
No. CIV.A.3:06CV1936-D, 2007 WL 1556961 (N.D. Tex. May 30, 2007) ...........................10
Hart v. FedEx Ground Package Sys. Inc.,
457 F.3d 675 (7th Cir. 2006) ...................................................................................................16
Jaynes v. United States,
69 Fed. Cl. 450 (Fed. Cl. 2006) ...............................................................................................12
Lang v. Manufacturers & Traders Trust Co.,
274 F.R.D. 175 (D. Md. 2011).................................................................................................18
LeCompte v. Mr. Chip,
528 F.2d 601 (5th Cir. 1968) .............................................................................................16, 17
Mortgage Guar. Inc. Corp. v. Richard Carlyon Co.,
904 F.2d 298 (5th Cir. 2000) ...................................................................................................17
Opelousas Gen. Trust Auth. v. Multiplan, Inc.,
533 F. Appx 488 (5th Cir. 2013) ............................................................................................16
Philadelphia Gear Works v. Kerotest Mfg. Co.,
101 F. Supp. 820 (W.D. Pa. 1951) ...........................................................................................18

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Preston v. Tenet Healthsystem Meml Med. Ctr., Inc.,

485 F.3d 804 (5th Cir. 2007) ......................................................................................................9
Randall v. Rolls-Royce Corp.,
637 F.3d 818 (7th Cir. 2011) ...................................................................................................14
Robles v. Atl. Sounding Co.,
77 F. Appx 274 (5th Cir. 2003) ..............................................................................................18
Save Power Ltd v. Syntek Fin. Corp.,
121 F.3d 947 (5th Cir. 1997) .....................................................................................................8
Serrano v. 180 Connect, Inc.,
478 F.3d 1018 (9th Cir. 2007) .................................................................................................16
Simms v. Jones,
296 F.R.D. 485 (N.D. Tex. 2013) ............................................................................................12
Stirman v. Exxon Corp.,
280 F.3d 544 (5th Cir 2002) ....................................................................................................13
Sutter Corp. v. P&P Indus., Inc.,
125 F.3d 914 (5th Cir. 1997) .....................................................................................................8
Texas Midstream Gas Servs., LLC v. City of Grand Prairie,
No. 3:08-CV-1724-D, 2010 WL 3565232 (N.D. Tex. Sept. 8, 2010) .....................................18
In re TWL Corp.,
712 F.3d 886 (5th Cir. 2013) ...................................................................................................12
Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541 (2011) .............................................................................................................13
Yoffe v. Keller Indus., Inc.,
580 F.2d 126 (5th Cir. 1978) ...................................................................................................17
Young v. Nationwide Mut. Ins.,
693 F.3d 532 (6th Cir. 2012) ...................................................................................................11
Rules and Statutes
28 U.S.C. 1332(d)(1)(B) .............................................................................................................10
28 U.S.C. 1332(d)(2) ...................................................................................................., 10, 15, 16
28 U.S.C. 1332(d)(4) ..................................................................................................................15
28 U.S.C. 1332(d)(8) ..................................................................................................................10

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Fed. R. Civ. P. 12(b)(1)....................................................................................................................2

Fed. R. Civ. P. 12(f) .......................................................................................................................11
Fed. R. Civ. P. 23 ...........................................................................................................................18
Fed. R. Civ. P. 23(a) ......................................................................................................................11
Fed. R. Civ. P. 23(b)(1)..................................................................................................................11
Fed. R. Civ. P. 23(c)(1)(A) ............................................................................................................11
Fed. R. Civ. P. 23(d) ......................................................................................................................14
Fed. R. Civ. P. 23(d)(1)(D) ............................................................................................................11
Fed. R. Civ. P. 23(d)(5)....................................................................................................................4
Fed. R. Civ. P. 41 .........................................................................................................................3, 8
Fed. R. Civ. P. 41(a)(2) ............................................................................................................16, 17
Fed. R. Civ. P. 54(d)(2)..................................................................................................................19
Other Authorities
2 William B. Rubenstein, Newburg on Class Actions 6:18 (5th ed. 2013).................................10

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Defendant Texas A&M University 12th Man Foundation (the Foundation) files this
(1) Reply to Plaintiffs Amended Joinder in Motion to Dismiss and (2) Response to Plaintiffs
Request for Dismissal Without Prejudice Pursuant to Rule 41(a)(2) of the Federal Rules of Civil
Procedure. Doc. 9.
SUMMARY OF ARGUMENT
After invoking the minimal diversity jurisdiction provisions of the Class Action Fairness
Act (CAFA), Plaintiffs now assert that the Foundation has convinced them that CAFAs home
state and local controversy exceptions apply. Under CAFA, therefore, any class action belongs
in state court in Texas. But rather than wait for this Court to rule on their motion to dismiss,
Plaintiffs re-filed their alleged class action in Florida federal court asking that court for the same
expedited injunctive relief this Court has already denied.
This Court has the jurisdiction and the authority to impose conditions on Plaintiffs
motion for voluntary dismissal. Moreover, the pleadings and other filings in this Courts record
make it apparent that Plaintiffs proposed class is not suitable for class treatment.

The

Foundation therefore asks this Court to set conditions on the dismissal to protect the interests of
the Foundation, including ordering that any case arising from the facts of this case cannot be
maintained as a class action, that no temporary or preliminary injunctive relief can be granted in
any case arising from the same nucleus of facts, and that Plaintiffs must pay the Foundations
fees, expenses, and costs of defending this case.
FACTS RELEVANT TO THIS MOTION
1.

Plaintiffs file this case in the Eastern District of Texas.

On Wednesday, March 11, 2015, Plaintiffs filed a 34-page Class Action Complaint for

Breach of Contract, Declaratory Judgment, and Injunctive Relief Including Specific Performance

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with 204 pages of exhibits. Doc. 1. They simultaneously filed a 31-page Application for
Temporary Restraining Order and for Preliminary Injunction with another 198 pages of exhibits.
Doc. 2.
Although the Court was in trial, it held a telephonic status conference at 4:00 that very
afternoon and ordered the Foundation to respond to Plaintiffs application by noon on Friday,
March 13th. The Foundation did so, filing a 27-page Opposition to Plaintiffs Application for
Temporary Restraining Order and for Preliminary Injunction with 143 pages of exhibits. Doc. 3.
The Foundation also filed an 8-page Motion to Dismiss under Rule 12(b)(1) for Lack of SubjectMatter Jurisdiction with a 7-page exhibit. Doc. 4.
This Court undoubtedly invested considerable time and effort in reviewing those
extensive filings before issuing its ruling on Saturday, March 14th, denying Plaintiffs
application. Doc. 7. The Court explained that Plaintiffs sought the following injunctive relief:
(a)
restraining the Foundation from applying its Priority Points Program and
Kyle Field Reseating Plan to change the established seating locations of any of
the Foundations Permanently Endowed Donors, including each Plaintiff;
(b)
ordering the Foundation to cease and desist its harassment and
intimidation of the Permanently Endowed Donors who object to the Foundations
plan to reseat Kyle Field; and
(c)
ordering the Foundation to refrain from taking any action that would
punish or disadvantage Plaintiffs or any other Permanently Endowed Donor by
reason of the bringing of this lawsuit.
Doc. 7 at 1.
The Court then denied Plaintiffs request in its entirety:
Having reviewed the record before the Court, the Court does not find that
Plaintiffs have clearly carried their burden of persuasion on the requirements for a
preliminary injunction . . . . The Court is not clearly persuaded that the elements
necessary for a preliminary injunction have been proven and therefore DENIES
Plaintiffs Motion for Temporary Restraining Order and for Preliminary
Injunction.

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Id. at 2-3.
Four days after this Court entered its Saturday order, on March 18th, Plaintiffs filed their
own motion to dismiss their lawsuit asking this Court to give them a get-out-of-jail-free card
posthaste. Plaintiffs asserted that they were filing their own dismissal motion under Rule 41 to
insure that dismissal is not delayed so they could file another class action injunction case
involving the same issues in another state right away. Doc. 10 at 2-3. In other words, Plaintiffs
in essence admitted that after this Court turned them down on so-called emergency relief, they
wanted to shop for a new court.
In their Motion to Dismiss, Plaintiffs sought to reassure the Court that its work was not
entirely in vain. They said the new court will be fully informed of this Courts ruling and the
new plaintiff will not seek to revisit the following: the request that the court enjoin the
Defendant from putting the Permanent Endowed Donor seats in the seat selection process which
commenced March 16, 2015. Id. at 3.
2.

Plaintiffs re-file this case in the Southern District of Florida.

Apparently this Court did not act quickly enough for Plaintiffs. Their Texas counsel filed

a new case the very next day, March 19th, in the United States District Court for the Southern
District of Florida, Fort Lauderdale, more than 1,000 miles away from Marshall in another state
and a different federal circuit. Arguably, they have a new plaintiff, but she is only identified as
Jane Doe, and she brings the case on behalf of the identical alleged class as the case in this
Court.1 The re-filed complaint includes all the same exhibits as were filed in this Court,
including the affidavits of the three named plaintiffs before this Court. Id.
1

See Jane Doe, individually and for all others similarly situated v. Texas A&M University 12th
Man Foundation a/k/a The 12th Man Foundation, No. 0:15-cv-60581-WPD, filed in the United
States District Court for the Southern District of Florida, Fort Lauderdale Division (Complaint
attached as Ex. A to this Response). The Florida plaintiff allegedly filed as a Jane Doe
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And despite Plaintiffs assurances to this Court the day before the Florida complaint was
filed, the Florida complaint is a blatant collateral attack on this Courts denial of Plaintiffs
request for a temporary restraining order and preliminary injunction. For example, on behalf of
the same alleged class as in this case, the new plaintiff in the Florida complaint alleges:
9.
Plaintiff respectfully asks the Court to act on an expedited basis to certify
a class of the Permanently Endowed Donors holding contractual rights to
seating locations in Kyle Field that were established for life (or 30 years), . . .
and; to help protect its right to specific performance by requiring the
Foundation to provide notice to other Foundation members now selecting seat
locations that the Permanently Endowed Donors established seat locations at
issue are subject to this litigation, the outcome of which could affect their
actual availability for sale. This notice . . . will . . . provide the new (otherwise
unwitting) ticket purchasers with the notice of the true status of the seat locations
they think they are selecting/purchasing. Preservation of the rights of the
Permanently Endowed Donors, and notice to all potential purchasers, is
necessary until such time as this Court can address Class Certification and
Declaratory Judgment. This notice will serve to further protect the rights of the
Plaintiff and the Putative Class Members and will not cause a hardship on the
Foundation.
11.
Plaintiff is entitled to the equitable remedy of specific performance. Her
established seat location rights are as unique as real estate because they are
location rights. Monetary damages are impossible to measure, as the
(substantial) amount of additional contributions required of Plaintiff and the
Class under the Foundations Reseating Plan is uncertain because the various
new fees unilaterally imposed on them can change at the whim of the
Foundation based on its assessment of what the market will bear.
Id. 9, 11 (emphasis added).
On March 24th, another pleading was filed in Florida entitled Motion for Orders
Pursuant to Rule 23(d)(5) [sic] and the Inherent Authority of the Court with Expedited Relief
Requested. Ex. B. The motion states that The Courts acting on an expedited basis is

because she realistically fears the reprisals and retribution with which others similarly situated
and who have opposed the Foundations efforts have been threatened. Ex. A at 7. Plaintiffs
lead counsel wasted no time letting the Houston Chronicle know about that.
See
http://www.chron.com/sports/aggies/article/New-Kyle-Field-seating-lawsuit-filed-in-Florida6146698.php.

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necessary because the Defendants Seating Selection process began March 16, 2015, and is
ongoing. Each day, the highest ranked donors of the Foundation are selecting their seats
from the best, remaining seating locations, some of which belong to Plaintiff and the Class.
Thus, each day that passes the rights of the Class to seek specific performance of the Endowment
Agreement to regain their established seating locations at Kyle Field may be diminished to the
extent the new persons could maintain that they acquired their seats in good faith without notice
of the claims of Plaintiff and the Class. Id. at 2 (emphasis in original).
The motion asks the Florida Court for orders:

requiring the Foundation to disclose in writing prior to the time of purchase and
within 48 hours of the Courts order to the purchasers of seating locations in the
Redeveloped Kyle Field that correspond to the locations of Plaintiffs established
seating locations and to those of proposed Class members that the right to be
seated at those locations this year, and for the term of their 15-year endowment
and thereafter, is disputed in this action and subject to determination by the Court.
Plaintiff asks the Court to order Defendant to mail notice to purchasers and to
provide notice in advance of purchase via notice posted or appearing at mouseclick or hover-over selection of a disputed seating location on the Foundations
Seat Selection webpage.2

restraining the Foundation from its efforts to harass and intimidate the
Permanently Endowed Donors who object to the Foundations plan to reseat Kyle
Field; and

ordering the Foundation to refrain from taking any action that would punish or
disadvantage Plaintiff or any other Permanently Endowed Donor by reason of the
bringing of this lawsuit.

In their proposed order in Florida, Plaintiffs ask for numerous factual findings that directly
contradict this Courts denial of injunctive relief, and specifically ask the Florida court to require
that the Foundation identify contiguous seats in the number issued the Plaintiff and the putative
Class Members upon Endowment and in the location that most closely resembles each Plaintiff
and putative class members established seat location, and then to order the Foundation to notify
purchasers and potential purchasers that the seats are in litigation. See Ex. E at 3. This Court has
already rejected the virtually identical request for an injunction requiring the Foundation to
[r]eserve, for issuance to Class Members . . . contiguous seats in the number issued the Class
Member upon endowment and in the location that most closely resembles each Class Members
established seat location . . . . Doc. 1 91(3).

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Ex. B at 4.
As this Court is aware, almost all endowed donors (the alleged class) previously sat in
the west side of stadium, which was demolished on December 21, 2014, and no longer exists. So
now, rather than asking to stop reseating for the entire new Kyle field, Plaintiffs essentially ask
the Florida court to preserve the uncertified classs supposed right to specific performance.3
Their latest proposal is that the Florida court in essence stop the reseating of the entire west side
by sending their proposed notice. But this Court has already determined that if Plaintiffs suffer
any damage from having to choose allegedly inferior seats, that harm could be compensated by
monetary damages. Doc. 7 at 2-3. Plaintiffs are therefore not entitled to specific performance.
Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 279 (5th Cir. 2012).
The Motion for Orders is also apparently intended to fulfill Plaintiffs promise that the
new court will be fully informed of this Courts ruling. They provide the following version of
events:
Activity Prior to This Filing
The Foundations goal from the very beginning has to been to string the Endowed
Donors along and continuously jerk them around until the Reseating Process
began, at which point the Foundation thought it would be home free from the
claims of the Endowed Donors. A detailed account of the despicable actions of
the Foundation is contained in the Affidavit of Claude M. McQuarrie III,
Exhibit 4 hereto . . . .
***
[Plaintiffs York, Holubec, and Hayes] filed a Class Action Complaint and Motion
for Temporary Restraining Order (TRO) and Preliminary Injunction in the United
States District Court for the Eastern District of Texas. Judge Rodney Gilstrap of
that court denied the TRO and Preliminary Injunction, finding that those plaintiffs
had not met the high standard for such extraordinary relief. York v. Texas A&M
3

The request for specific performance in the Florida complaint is copied nearly verbatim from
Plaintiffs request for specific performance in this case. Compare Ex. A 94-96 with Doc. 1
73-75.

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12th Man Foundation, No. 2:15-cv-00352-JRG, slip op. at 3 (U.S. Mar. 14, 2015)
(copy attached as Exhibit 1).
At the time of filing its Opposition to the Motion for TRO and Preliminary
Injunction, the Foundation filed a Motion to Dismiss for Lack of Jurisdiction and
submitted credible evidence that an exception to CAFA existed in that case, and
Texas court lacked jurisdiction. Rather than rush to non-suit, the York Plaintiffs
researched whether the jurisdictional defect could be cured by adding an out of
state Plaintiff. The Foundations position is that Plaintiff Doe cannot proceed in
Florida with her case as long as the York case is pending. So, as the games
continued, the Foundation rushed and filed an answer in an attempt to keep the
very case alive that the Foundation said could not proceed in federal court in
Texas. The York Plaintiffs, who do not wish to waste the Texas courts resources,
joined in the Defendants Motion to Dismiss and filed their own Motion to
Dismiss the Texas action. These motions are pending before the Texas court.
Ex. B at 2-4 (emphasis added).4
3.

Plaintiffs are wasting judicial resources with their gamesmanship.

Plaintiffs are right in one respect: the games they are playing with the federal courts

and the Foundation are in fact continuing. Two examples highlight that fact. First, Plaintiffs
profess their belief in full disclosure to this Court, but then say they filed the case in this Court
based on the good faith belief that at least one-third of the proposed class of Permanently
Endowed Donors could reside outside the state of Texas such that CAFA jurisdiction could be
maintained in this Court. Doc. 10 at 3. They claim they found out they were wrong only when
the Foundation informed Plaintiffs and the Court shortly before noon on Friday, March 13,
2015, that only 14 of the 440 of their proposed class members reside outside of Texas and that
the Foundation appears likely to establish that a mandatory exception exists to federal
jurisdiction in this case as it is currently constituted. Id.

After the Foundation notified the Florida court that the request for expedited treatment had not
been made in accordance with the local rules, Plaintiffs counsel agreed that the Foundation
could have until April 24, 2015, to respond to the Complaint and the Motion for Orders.

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That good faith belief is belied by the actions of Plaintiffs counsel. Plaintiffs neglect
to disclose that their lead counsel called two of the Foundations lawyers on Thursday,
March 12, 2015, the day before the Foundation filed its opposition to the request for injunctive
relief and its motion to dismiss. See Exs. C and D (Declarations of Layne Kruse and Randall
Richardson respectively).

Each of the two lawyers independently returned her call on

March 12th, and Plaintiffs lead counsel told each of them separately that the Foundation should
not challenge jurisdiction in federal court in Marshall because Plaintiffs would just file in another
federal court. Id. When asked where they were considering filing, she would not say which
exact court, but she said that they were considering Mississippi, Oklahoma, or Florida. Id. The
Foundations lawyers did not agree not to challenge jurisdiction. Id.
Second, the Plaintiffs in this Court are all working together with the new plaintiff in the
Florida case. After filing their Motion for Orders in Florida, Plaintiffs lawyers forwarded it to
the Foundations counsel by email. Included in the email chain they forwarded was a (nonprivileged) email forwarding the same pleading not only to the Jane Doe plaintiff (whose name
and email the Foundation has redacted from the email), but also to the three Plaintiffs in this
Court. See Ex. E. Plaintiffs gamesmanship should not be countenanced.
ARGUMENT AND AUTHORITIES
This Court has the authority under the circumstances to impose conditions to Plaintiffs
voluntary dismissal.

In addition to this Courts authority under Rule 41 and its inherent

authority, the first-to-file rule, which is based on principles of comity and sound judicial
administration, Save Power Ltd v. Syntek Fin. Corp., 121 F.3d 947, 950 (5th Cir. 1997), vests
in the court in which the first of the two related actions was filed the responsibility of
determin[ing] whether subsequently filed cases involving substantially similar issues should
proceed. Sutter Corp. v. P&P Indus., Inc., 125 F.3d 914, 920 (5th Cir. 1997). Accordingly, the
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Foundation asks that the following conditions be imposed by this Court on the dismissal of this
lawsuit:

1.

That any case arising from the same nucleus of facts as this case cannot be
maintained as a class action because the proposed class is not a class;

That no temporary or preliminary injunctive relief can be granted in any case

arising from the same nucleus of facts as this case; and

That Plaintiffs must pay the Foundations fees, expenses, and costs of defending
this case, the amount of which shall be determined by this Court pursuant to Rule
54(d)(2) of the Federal Rules of Civil Procedure.

This Court can determine there is no class before dismissing with conditions.
Before dismissing with conditions, this Court can determine from the record before it that

the facts of this case demonstrate it is not suitable for class treatment. Plaintiffs concede that the
Foundation has established that two CAFA abstention provisions, the home-state and localcontroversy exceptions, apply to the case because far more than two-thirds of the proposed class
members and the sole defendant are citizens of Texas and the primary alleged injuries occurred
in Texas. Doc. 10 at 3.5 An additional ground for dismissal under CAFA, however, is the fact
that this case is not appropriate for class treatment, which this Court has both the jurisdiction and
the authority to determine.

CAFA jurisdiction is also improper in federal court in Florida, where the only connection with
this case is that a single member of the proposed class apparently currently resides there. The
home-state and local controversy exceptions, are designed to draw a delicate balance
between making a federal forum available to genuinely national litigation and allowing the state
courts to retain cases when the controversy is strongly linked to that state. Hart v. FedEx
Ground Package Sys. Inc., 457 F.3d 675, 682 (7th Cir. 2006). If a federal court in Texas should
not hear the case because it is a truly localized controversy, see Preston v. Tenet Healthsystem
Meml Med. Ctr., Inc., 485 F.3d 804, 823 (5th Cir. 2007) (This particular Hurricane Katrina
case symbolizes a quintessential example of Congress intent to carve-out exceptions to CAFAs
expansive grant of federal jurisdiction when our courts confront a truly localized controversy.),
then a federal court in Florida certainly should not hear the case.

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A.

This Court has jurisdiction to determine there is no class.

This Court has jurisdiction to determine that the case should not proceed as a class. A
federal court gains jurisdiction over a CAFA lawsuit when the suit is filed as a CAFA class
action. See 28 U.S.C. 1332(d)(2) (The district courts shall have original jurisdiction of any
civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive
of interest and costs, and is a class action . . . .); 28 U.S.C. 1332(d)(1)(B) (the term class
action means any civil action filed under rule 23 of the Federal Rules of Civil Procedure . . . or
similar rule of judicial procedure authorizing an action to be brought by 1 or more representative
persons as a class action).
A courts jurisdiction over an alleged class attaches upon filing even if there is not a
proper class. Cunningham Charter Corp. v. Learjet, Inc., 592 F.3d 805, 806 (7th Cir. 2010)
(jurisdiction attaches when a suit is filed as a class action, and that invariably precedes
certification) (emphasis in original); Garcia v. Boyar & Miller, P.C., No. CIV.A.3:06CV1936,
2007 WL 1556961, *5 (N.D. Tex. 2007) (Class certification is neither a requirement for
removal nor a prerequisite for federal jurisdiction under CAFA.) (citing 28 U.S.C.
1332(d)(8)); 2 William B. Rubenstein, Newburg on Class Actions 6:18, at 563 (5th ed. 2013)
([A]ll courts agree that a federal court has jurisdiction over a putative class action, that is, a case
filed as a class suit. Thus, the denial of class certification does not mean that the court never had
subject matter jurisdiction, and therefore that denial has a binding effect on the parties to it.).
B.

This Court has authority to require that class allegations be eliminated.

Where the pleadings demonstrate that the requirements for maintaining a class action
cannot be met, a court may require that the pleadings be amended to eliminate allegations about
representation of absent persons even before a plaintiff moves for class certification. Bell v.
Cheswick Generating Station, Genon Power Midwest, L.P., No. 12-929, 2015 WL 401443, at *2

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(W.D. Pa. Jan. 28, 2015). As an initial matter, the authority to strike class allegations stems
from Federal Rules of Civil Procedure 12(f), 23(c)(1)(A), and 23(d)(1)(D).

Id. (citations

omitted). Indeed, Rule 23(d)(1)(D) specifically provides that in CAFA class actions, a court
may issue orders that . . . require that the pleadings be amended to eliminate allegations about
representation of absent persons and that the action proceed accordingly. Id.
Although Plaintiffs do not even cite the applicable class action rule, regardless of whether
this is a proposed Rule 23(b)(1) or (b)(2) or (b)(3) class, their proposed class is not a class under
any theory.6

All classes must satisfy the four baseline requirements of Rule 23(a):

(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.

The

proposed class does not do so.

(1)

The alleged class is not adequately defined.

First, Plaintiffs proposed class is not adequately defined or clearly ascertainable. Young
v. Nationwide Mut. Ins., 693 F.3d 532, 537-38 (6th Cir. 2012). A class is not definable if it is too
vague or if the court would be required to hold extensive and individualized fact-finding to
determine membership.

Id.

Plaintiffs proposed class includes donors with Permanently

Endowed Scholarship Program agreements whose established seat locations; priority parking or
other endowment benefits, including upgrade rights, are subject to alteration or termination if
they do not make additional, continuing payments to Defendant. Doc. 1 62. But none of the
endowment contracts, oral or written, expressly confer a right to an established seat location.

Plaintiffs assert that this is an injunction class, but it is clear that they also want a large sum of
money. Paragraph 62 of Plaintiffs Complaint demands a refund of all monies paid by Class
members as additional payments to the Foundation to maintain their established seat locations . .
or to upgrade the same . . . . Doc. 1 62. In essence, this is a damage claim based on the
breach of contract theory. The complaint in Florida seeks injunctive relief and also expressly
seeks a damages class.

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Thus, individualized hearings would be required on each endowed donors contract. As a result,
class certification would be improper because Plaintiffs have failed to propose a definable class.
(2)

The alleged class does not satisfy the numerosity requirement.

Second, the 97% Texas class does not satisfy the numerosity requirement. Although
there is no definite standard for what size class satisfies this prong, in assessing numerosity the
Court should consider the geographic dispersion of the class, the ease with which class members
can be identified, the nature of the action, and the size of each plaintiffs claim. In re TWL
Corp., 712 F.3d 886, 894 (5th Cir. 2013). In considering these factors, the fundamental inquiry
turns on whether joinder of the proposed class member is impracticable. Simms v. Jones, 296
F.R.D. 485, 497 (N.D. Tex. 2013).
Here Plaintiffs have inaccurately claimed that membership in the class is so numerous as
to make it impracticable to bring all Class members before the Court. Doc. 1 62. But with
97% of the class residing in Texas, Plaintiffs cannot show that the proposed class would suffer
from significant geographic diversity or that the difficulty in identifying potential members
would make joinder impracticable. Id. (the plaintiffs failed to satisfy numerosity where no
evidence of geographic diversity was presented); Jaynes v. United States, 69 Fed. Cl. 450, 45455 (Fed. Cl. 2006) (a class with as many as 258 alleged members failed to satisfy numerosity
because 80% of the proposed class was located within the state). In fact, Plaintiffs admit that the
class members can be readily determined from records the Foundation maintains. Doc. 1 63.
Plaintiffs also ignore the fact that the seating procedures for the new Kyle Field were
announced over two years ago, and since then, only a handful of state court lawsuits related to
this issue have been filed, and nearly all have been resolved. More than 95% of the alleged class
members have signed up for new seats without objection. Accordingly, it defies common sense
to believe that the purported class of objectors to reseating meets any level of numerosity.
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This case was filed by three individuals on the eve of the last step of the seat selection process in
an obvious attempt to extract more benefits by claiming they should represent a class. Thus, the
proposed class cannot satisfy the numerosity requirement of class certification.
(3)

The alleged class does not satisfy the commonality or typicality

requirements.

Third, Plaintiffs also cannot satisfy commonality or typicality. The dispositive inquiry
into determining commonality is not whether the class raises common questions, but whether the
class generates common answers that are capable of resolving the suit. Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541, 2551 (2011).

The Supreme Court in Wal-Mart noted that

[d]issimilarities within the proposed class are what have the potential to impede the generation
of common answers. Id. (citation omitted). To establish typicality, the claims or defenses of
the class and the proposed class representative must (1) arise from the same event, pattern, or
practice, and (2) be based on the same legal theories. Stirman v. Exxon Corp., 280 F.3d 544, 562
(5th Cir 2002). Plaintiffs allege there are numerous substantial questions of law and fact
common to all members of the proposed class, such as whether the Foundation is contractually
obligated to provide endowment benefits to Plaintiffs and whether Plaintiffs or other members
have any further obligations to maintain their established seat locations, priority parking, or
other endowed benefits. Doc. 1 63.
Yet, as the Supreme Court has noted, any cleverly crafted complaint can literally raise
common questions. Id. Plaintiffs have not, and cannot, show that common answers can be
generated by the proposed class. Plaintiffs allege that Permanently Endowed Donors were
promised benefits in the best available seating locations and game day parking in the best
available locations for home games. Id. Plaintiffs endowment agreements, however, never use

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the words best available to describe the bargained-for seat or parking location. Indeed, what
seats are best available is an entirely subjective determination for each proposed class member.
Nor do Plaintiffs endowment agreements identify an established seat location. In fact,
the vast majority of the proposed classs endowment agreements were made orally. Plaintiffs
success on the merits is predicated not on the plain language of their individual agreements, if
written, but on oral representations allegedly made outside of the agreement. Thus, the class
would be unable to generate a common answer that would be capable of resolving the entire suit
because whether the Foundation breached each agreement would require a factual inquiry into
each agreement. Doing so would devolve into 450 mini-trials. Here, the dissimilarities are too
great to satisfy commonality.
(4)

Intra-class conflicts are inherent in the proposed class.

Fourth, it is apparent from the record in this case that the proposed class representatives
cannot show that they will adequately protect the interest of the class because their interests
necessarily conflict with other potential class members interests. See Fed. R. Civ. P. 23(d);
Randall v. Rolls-Royce Corp., 637 F.3d 818, 824 (7th Cir. 2011) (if there is conflict of interest
related to the specific issues being litigated, the proposed class representative cannot adequately
represent the class).
Here, Plaintiffs ask the Court to order the Foundation to provide each proposed class
member with best available parking and seats in a location that is commensurate to each
members seat location in the old stadium. But the number of parking spaces available for
allocation to donors has declined each year as entire parking lots have been eliminated due to
ongoing construction and will continue to decline as new construction eliminates the availability
of parking adjacent to the stadium. Likewise, the reconstruction of the west side of Kyle Field
reduced capacity by approximately 4,100 seats. Thus, because of the reduced amount of benefits
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as well as the subjective nature of the remedy sought, there will necessarily be endowed donors
that demand seating or parking in the same location as the proposed class representatives, which
would improperly place them in direct conflict as to the specific issues being litigated.
Plaintiffs, moreover, cannot show that their interests are aligned with those of class
members. Of the 450 total endowed donors, only a small fraction have raised an issue with the
reseating. The vast majority have participated in the reseating process without complaint, and
several have voiced strong support for the process. In fact, 334 endowed donors have used their
opportunity to choose first and elected to purchase seats in locations that require a donation
above and beyond the $2,000 credit provided by the Foundation, and eight endowed donors have
selected seats located in a suite.
Out of the top 1000 donors, 243 are endowed donors with priority point levels that enable
them to be among the first to select seats within their desired sections. Those potential class
members would have no interest in enjoining the reseating; thus, the proposed representatives
interests do not align with the entire class they seek to represent. Whats more, many donors
would reject a remedy that may ultimately jeopardize the 2015 football season. Thus, enjoining
the Foundation from moving forward with the reseating does not align with interests of all
proposed class members and Plaintiffs would not be able to show that their representation of the
class is adequate.
2.

The proposed conditions are proper under Rule 41(a)(2).

The conditions that the Foundation proposes are well within the Courts jurisdiction.

Jurisdiction exists under CAFA if the requirements under 28 U.S.C. 1332(d)(2) are satisfied.
While they do not divest a court of jurisdiction, two exceptions under 28 U.S.C. 1332(d)(4),
the home-state exception and the local-controversy exception, require a court to abstain from
continuing to exercise that jurisdiction under certain circumstances.
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A.

This Court has jurisdiction to impose conditions on dismissal.

These exceptions to CAFA, however, do not divest a court of jurisdiction before the court
abstains from exercising it. See Clark v. Lender Processing Servs., 562 F. App'x 460, 465 (6th
Cir. 2014) ([T]he local-controversy and home-state exceptions do not deprive a court of
jurisdiction. The statute speaks only of a district courts declining jurisdiction if the exceptions
apply. This language clearly indicates that the exceptions do not deprive the court of jurisdiction
it otherwise possesses because a court could not decline jurisdiction that it never had in the first
place.) (citations omitted); Opelousas Gen. Trust Auth. v. Multiplan, Inc., 533 F. Appx 488,
490 (5th Cir. 2013) (The propriety of the district court's remand order turns on its assessment of
the local controversy exception to CAFA jurisdiction. The phrase is something of a misnomer.
No one disputes that CAFA imbued the district court with jurisdiction over this matter. Instead,
the pertinent part of the exception instructs that [a] district court shall decline to exercise
[CAFA] jurisdiction . . . .).7
B.

This Court has authority to impose conditions on dismissal.

In the exercise of that jurisdiction, this Court also has authority to attach conditions to a
voluntary dismissal. After a defendant has filed an answer, an action may be dismissed at the
plaintiff's request only by court order, on terms that the court considers proper. Fed. R. Civ. P.
41(a)(2). Thus, under Rule 41(a)(2), a district court has the discretion to create and attach
conditions to the grant of a plaintiffs motion to dismiss without prejudice. Conley v. Aetna Life

See also Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1022-23 (9th Cir. 2007) (Implicit in
both subsections (d)(3) and (d)(4) is that the court has jurisdiction, but the court either may or
must decline to exercise such jurisdiction . . . . The provisions fit into the statutory structure as
exceptions to jurisdiction, not elements of original jurisdiction.); Hart v. FedEx Ground
Package Sys. Inc., 457 F.3d 675, 681 (7th Cir. 2006) (The case might be different if Congress
had put the home-state and local controversy rules directly into the jurisdictional section of the
statute, 1332(d)(2), but it did not.).

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Ins. Co., No. 99-10149, 213 F.3d 635 (table), 2000 WL 554056, at *3 (5th Cir. Apr. 11, 2000)
(citing LeCompte v. Mr. Chip, 528 F.2d 601, 604 (5th Cir. 1968). Allowing the court to attach
conditions to the order of dismissal prevents defendants from being unfairly affected by such
dismissal. LeCompte, 528 F.3d at 604 (citation omitted). As a result, [w]hen considering a
dismissal without prejudice, the court should keep in mind the interests of the defendant, for it is
his position which should be protected. Id. (citation omitted); see also Conley, 2000 WL
554056, at *3 (the authority to attach conditions exists so that the court can protect the interests
of defendants) (citations omitted).
Most cases under the Rule have involved conditions that require payment of costs and
attorneys fees. LeCompte, 528 F.3d at 603 (citations omitted); Mortgage Guar. Inc. Corp. v.
Richard Carlyon Co., 904 F.2d 298, 300 (5th Cir. 2000) (Most often, the courts require
plaintiffs to bear the attorneys fees and costs of the dismissed defendant.) (citations omitted).
For example, the Fifth Circuit has not only upheld a district courts award of attorney fees and
costs incurred through the time of the plaintiffs motion to dismiss, it added the costs the
defendant incurred in preparing for an evidentiary hearing in the district court to determine the
amount of those costs and the costs of defending the appeal. Yoffe v. Keller Indus., Inc., 580
F.2d 126, 129 n.9, 130 (5th Cir. 1978) (There is no doubt that a court has ample authority to
award attorneys' fees as a term and condition of a Rule 41(a)(2) voluntary dismissal in order to
protect defendants).
The conditions a trial court may impose, however, are not limited to conditions of
payment of cost, expenses, and fees. LeCompte, 528 F.2d at 603. The dismissal may be
conditioned upon the imposition of other terms designed to reduce inconvenience to the
defendant.

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Courts have therefore attached various non-monetary

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conditions in granting a plaintiffs motion to voluntarily dismiss.

For example, in Texas

Midstream Gas Servs., LLC v. City of Grand Prairie, No. 3:08-CV-1724-D, 2010 WL 3565232,
at *5 (N.D. Tex. Sept. 8, 2010), where the plaintiffs request for preliminary injunction had
already been denied, the court conditioned dismissal on the requirement that, if [the plaintiff]
refiles this lawsuit or files any related case, it must file the suit in the Dallas Division of the
Northern District of Texas.8
Ultimately, the trial court has wide latitude to impose conditions that are focused on
protecting the defendant, rather than on disadvantaging the plaintiff provided that the
conditions would not serve[] to transform the dismissal without prejudice into a dismissal with
prejudice. Robles v. Atl. Sounding Co., 77 F. Appx 274, 276 (5th Cir. 2003) (affirming
conditions that prohibited the plaintiff from refiling the case in the courts jurisdiction).
C.

This Court has discretion to impose the proposed conditions.

The conditions the Foundation requests are well within the Courts discretion under Rule
41(a)(2). A condition that any case arising from the same nucleus of facts as this case cannot be
maintained as a class action will save judicial resources and cannot prejudice any class member
because the case is not suitable for class treatment under Rule 23. There is no entitlement to
have a case proceed as a class action. American Express Co. v. Italian Colors Restaurant, 133 S.
Ct. 2304, 2309-10 (2013) (Rule 23 imposes stringent requirements for certification that in
practice exclude most claims.). Any class member who wishes would be free to file an
individual lawsuit. The fact that certain class members have exercised that right in state court

See also Lang v. Manufacturers & Traders Trust Co., 274 F.R.D. 175, 186 (D. Md. 2011)
(limiting the plaintiffs to maximum damages of $53,000 in any subsequent lawsuit);
Philadelphia Gear Works v. Kerotest Mfg. Co., 101 F. Supp. 820, 821 (W.D. Pa. 1951)
(forbidding the plaintiffs from reasserting the same patent infringement claim against the
defendant).

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only demonstrates the lack of need for any class action. The ability to file an individual suit is
not tantamount to a dismissal with prejudice.
The same is true for a condition that no temporary or preliminary injunctive relief can be
granted in any case arising from the same nucleus of facts as this case. Injunctive relief is an
extraordinary remedy. Doc. 7 at 2-3. As this Court has held, any injury a class member may
have suffered from receiving allegedly inferior seating would be compensable in damages.
Doc. 7 at 3. Any class member would be free to file a damage case. Finally, the Fifth Circuit
routinely affirms conditioning voluntary dismissal upon the plaintiffs payment of fees.
Each proposed condition is designed to protect the Foundation and not to punish
Plaintiffs. None is tantamount to a dismissal with prejudice. Each is within this Courts broad
discretion.
PRAYER
Texas A&M University 12th Man Foundation a/k/a The 12th Man Foundation
respectfully asks that the Court dismiss Plaintiffs case conditioned upon (1) an order that any
case arising from the same nucleus of facts as this case cannot be maintained as a class action;
(2) an order that no temporary or preliminary injunctive relief can be granted in any case arising
from the same nucleus of facts as this case; and (3) an order that Plaintiffs must pay the
Foundations fees, expenses, and costs of defending this case (the amount of which shall be
determined by this Court pursuant to Rule 54(d)(2) of the Federal Rules of Civil Procedure), and
to grant the Foundation such other relief to which it may be entitled.
Dated: March 31, 2015.

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Respectfully submitted,

/s/ Otis Carroll

Otis Carroll (State Bar No. 03895700)
Lead Attorney
IRELAND, CARROLL & KELLEY, P.C.
6101 S. Broadway, Suite 500
Tyler, Texas 75703
Tel: (903) 561-1600
Fax: (903) 581-1071
nancy@icklaw.com
Layne E. Kruse (State Bar No. 11742550)
layne.kruse@nortonrosefulbright.com
Randall S. Richardson (State Bar No. 24027658)
randall.richardson@nortonrosefulbright.com
Otway Denny (State Bar No. 05755500)
otway.denny@nortonrosefulbright.com
NORTON ROSE FULBRIGHT US LLP
1301 McKinney, Suite 5100
Houston, Texas 77010
Telephone: (713) 651-5151
Telecopier: (713) 651-5246
Attorneys for Defendant Texas A&M
University 12th Man Foundation a/k/a The
12th Man Foundation

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CERTIFICATE OF FILING AND SERVICE

I certify that on March 31, 2015, the foregoing document was electronically transmitted
to the Clerk of the Court using the ECF System for filing. Based on the records currently on file,
the Clerk of the Court will transmit a Notice of Electronic Filing to all registered counsel of
record.

/s/ Otis Carroll

Otis Carroll

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