Clark v. State Farm Mutual Automobile Insurance

                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                             December 29, 2009
                                     PUBLISH                Elisabeth A. Shumaker
                                                                Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 RICKY EUGENE CLARK,
 individually and on behalf of all others
 similarly situated,

              Plaintiff-Appellant,
       v.                                      Nos. 07-1454 and 07-1466
 STATE FARM MUTUAL
 AUTOMOBILE INSURANCE
 COMPANY, an Illinois corporation,

              Defendant-Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                  (D.C. NO. 00-cv-1841-LTB-KLM)


Robert B. Carey, The Carey Law Firm, Colorado Springs, Colorado (Steve W.
Berman, Hagens Berman LLP, Seattle, Washington, L. Dan Rector, Franklin D.
Azar & Associates, P.C., Colorado Springs, Colorado, and Walter H. Sargent,
Walter H. Sargent, a professional corporation, Colorado Springs, Colorado, with
him on the briefs) for Appellant.

Michael S. McCarthy (Marie E. Williams with him on the brief), Faegre &
Benson LLP, Denver Colorado, for Appellee.


Before HENRY, Chief Judge, MURPHY, and TYMKOVICH, Circuit Judges.


TYMKOVICH, Circuit Judge.
      In this appeal, we must determine whether a case may proceed as a class

action even though the named plaintiff’s claim became moot before he filed a

motion for class certification. We conclude that the case may not proceed.

      In August 2000, Ricky Eugene Clark filed a class action complaint in

Colorado state court naming State Farm Mutual Automobile Insurance Company

as the defendant. The complaint sought reformation of an automobile insurance

contract and damages under various contract, tort, and statutory causes of action.

The case was removed to federal court, spent nearly seven years in litigation, and

was appealed to this court on several occasions. See Clark v. State Farm Mut.

Auto. Ins. Co. (Clark III), 433 F.3d 703, 714 (10th Cir. 2005) aff’g Clark v. State

Farm Mut. Auto. Ins. Co. (Clark II), 292 F. Supp. 2d 1252 (D. Colo. 2003); Clark

v. State Farm Mut. Auto. Ins. Co. (Clark I), 319 F.3d 1234, 1241 (10th Cir.

2003). 1 On remand, the district court reached the merits of Clark’s claims,

determined he was entitled to judgment, set his damages, and entered judgment in

his favor. Then, in 2007, two years after remand of the second appeal and the

district court’s merits determination, Clark filed a motion for class certification.




      1
        Another appeal involved prospective intervenors whose intervention
motion was denied by the district court. We dismissed that appeal as untimely.
See Clark v. State Farm Mut. Auto. Ins. Co., No. 07-1466 (10th Cir. Mar. 19,
2008) (unpublished).

                                         -2-
      The district court denied Clark’s motion for class certification. The court

also determined that because Clark no longer had any claim against State

Farm—and no class had yet been certified—the entire case was moot.

      Clark appeals, claiming the district court’s conclusions were erroneous.

Exercising jurisdiction under 28 U.S.C. § 1291, we agree with the district court

that this case is moot and therefore AFFIRM.

                                   I. Background

      Both this court and the district court have thoroughly discussed the facts of

this case in previous published opinions. See Clark III, 433 F.3d at 706–09;

Clark II, 292 F. Supp. 2d at 1254–58. We briefly summarize those facts here, and

only offer a more thorough discussion of the procedural history as it relates to the

issues presented in this appeal.

      Clark, a pedestrian, was hit by a car in Pueblo, Colorado. State Farm

insured the car’s owner. Clark obtained benefits under the State Farm policy’s

Personal Injury Protection (PIP) coverage, but the amounts were limited to

Colorado’s statutory minimums by the policy’s “Pedestrian Limitation.”

      After the settlement, in an unrelated case, the Colorado Court of Appeals

held that Colorado law requires insurance companies to offer insureds the option

of purchasing extended PIP coverage beyond statutory minimums. See Brennan

v. Farmers Alliance Mut. Ins. Co., 961 P.2d 550 (Colo. Ct. App. 1998). If an

insurance company fails to offer the extended PIP coverage, the policy must be

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reformed to include it. Id. at 554. Due to this change in Colorado insurance law,

Clark filed suit in state court in 2000, claiming State Farm had not offered

extended PIP coverage to the car owner in violation of Brennan, and Clark was

therefore entitled to benefits above the statutory minimums. Among other legal

theories, Clark alleged reformation of contract, breach of contract, and breach of

good faith. In his complaint, Clark purported to represent a class of similarly

situated plaintiffs.

       State Farm removed the case to federal district court and subsequently filed

a motion to dismiss Clark’s complaint. The district court granted the motion,

reasoning Brennan should not apply retroactively to the policy at issue. Clark

appealed. We reversed and remanded, holding that Brennan applied retroactively

under the circumstances of the case. See Clark I, 319 F.3d at 1241. We ordered

the district court on remand to “decide as an initial matter the effective date of

reformation” of the car owner’s policy, taking into account the equitable nature of

the relief. Id. at 1243. The effective date of reformation was important to the

case because if the district court reformed the policy as of some prior date (i.e., if

the district court imposed retroactive reformation), Clark’s other claims, including

breach of contract and breach of good faith, would remain. See id. at 1244. On

the other hand, if the district court declined to impose retroactive reformation,

Clark’s other claims would fail.




                                          -4-
      On remand, State Farm filed a proposed case management order, requesting

the district court to decide the date of reformation of the driver’s policy before

turning to class certification issues. State Farm acknowledged that the case

“could be complete upon determination of the effective date of reformation” and

that if the district court decided against retroactive reformation—thereby

disposing of Clark’s remaining claims—the court would have no need to address

class certification. App. Vol. I at 256–57. After hearing oral argument, the

district court adopted State Farm’s proposed order, stating it would determine

class certification issues only “if necessary,” and only after holding an

evidentiary hearing to establish the date of reformation of the policy. Id. at 260.

      Prior to the proposed evidentiary hearing, Clark filed a motion urging the

district court to reconsider its case management order. Clark argued that

“reformation is in itself relief sought by the class, [and] determination of that

issue . . . should be preceded by a class determination so that the entire class

benefits from the court’s action.” App. Vol. II at 487. The district court denied

the motion and proceeded with the hearing.

      After the three-day hearing—during which the parties presented evidence

and argument regarding the appropriate date of reformation—the district court

determined that retroactive reformation was inappropriate. See Clark II, 292 F.

Supp. 2d at 1268. The court awarded Clark damages up to the policy’s aggregate

limit of $200,000 and dismissed Clark’s remaining claims. Id. at 1269. The court

                                          -5-
also certified its order as final under Federal Rule of Civil Procedure 54(b),

noting: “This Order resolves all claims between State Farm and Mr. Clark.

However, Mr. Clark also seeks a class certification on behalf of all others

similarly situated. . . . Resolution of the issues addressed here on appeal [will]

inform [the class certification] analysis.” Id. at 1270.

      Clark and State Farm both appealed various aspects of the Clark II order.

But Clark conspicuously chose not to appeal the district court’s case management

order, and he failed to raise the issue of whether the district court improperly

disposed of his claims without first considering class certification. We affirmed

the district court, although recognizing the need for “subsequent class

certification proceedings.” Clark III, 433 F.3d at 714.

      The case returned once again to the district court. The court entered

judgment for Clark, and in March 2006, State Farm paid the full amount of PIP

benefits awarded to Clark, including post-judgment interest. A year later, on

May 14, 2007, Clark moved for class certification. The same day, three parties

moved to intervene as named plaintiffs, fearing Clark would be unable to serve as

class representative because his claims had been fully adjudicated. The district

court denied the motion to intervene, concluding the motion was untimely. 2


      2
         The proposed intervenors attempted to appeal the district court’s denial
of their motion to intervene at the same time Clark filed the instant appeal. We
dismissed the intervenors’ appeal, noting that the order denying the motion to
                                                                       (continued...)

                                          -6-
      In September 2007, the district court denied class certification, finding that

Clark had failed to satisfy the requirements of Federal Rule of Civil Procedure 23.

The court also determined that the case had become moot, because “[a]fter

accepting payment in full for the judgment entered in his favor, [Clark] no longer

has a personal stake in the outcome of this litigation.” App. Vol. XI at 2782. The

court held that “[w]ithout a live, concrete controversy,” it lacked jurisdiction to

hear the case. Id.

                                   II. Discussion

      The central question posed by this appeal concerns our subject matter

jurisdiction. We review this question de novo. See, e.g., Kan. Judicial Review v.

Stout, 519 F.3d 1107, 1115 n.9 (10th Cir. 2008).

      A.     Legal Framework

      Article III of the Constitution limits the jurisdiction of federal courts to

“live controversies that exist at all stages of litigation, including appellate

review.” Mink v. Suthers, 482 F.3d 1244, 1256 (10th Cir. 2007) (emphasis in

original). We therefore lack power to hear moot claims, including those that have

been “fully satisfied” by a monetary judgment. Donald D. Forsht Assoc. v.

Transamerica ICS, Inc., 821 F.2d 1556, 1559 (11th Cir. 1987); see also Lewis v.


      2
        (...continued)
intervene was immediately appealable and the intervenors’ notice of appeal was
filed eighty-eight days late. See Clark v. State Farm Mut. Auto. Ins. Co., No. 07-
1466 (10th Cir. Mar. 19, 2008) (unpublished).

                                          -7-
Cont’l Bank Corp., 494 U.S. 472, 477–78 (1990) (parties must have a personal

stake in the outcome of a lawsuit at all stages of litigation). Furthermore, “[a]s a

general rule, a suit brought as a class action must be dismissed for mootness when

the personal claims of the named plaintiffs are satisfied and no class has been

properly certified.” Reed v. Heckler, 756 F.2d 779, 785 (10th Cir. 1985). 3

      Nonetheless, the Supreme Court has applied the mootness doctrine less

strictly in the class action context. In light of the relative independence of the

class entity from any one party, the Court has recognized the more “flexible

character of the Art. III mootness doctrine” in the class action context. U.S.

Parole Comm’n v. Geraghty, 445 U.S. 388, 400 (1980). Thus, because a certified

class becomes an independent juridical entity capable of satisfying the standing

requirements of Article III, the mooting of a named plaintiff’s claims after class


      3
          See also Bd. of School Comm’rs v. Jacobs, 420 U.S. 128, 129 (1975)
(“[A] case or controversy no longer exists between the named plaintiffs and the
petitioners . . . . The case is therefore moot unless it was duly certified as a class
action . . . .”); Bertrand v. Maram, 495 F.3d 452, 456 (7th Cir. 2007) (“[N]o class
was certified, and neither side seeks review of that decision. [The plaintiff’s]
claim therefore must be dismissed as moot.”); Potter v. Norwest Mortgage, Inc.,
329 F.3d 608, 611 (8th Cir. 2003) (“[A] federal court should normally dismiss an
action as moot when the named plaintiff settles its individual claim, and the
district court has not certified a class.”); D.R. v. Mitchell, 645 F.2d 852, 854 (10th
Cir. 1981) (“Because the class was never properly identified by the district judge,
there is no party before this court who can maintain the remaining constitutional
challenge.”); 5 Moore’s Federal Practice, § 23.64[1][b] (Matthew Bender 3d ed.
2009); cf. Adamson v. Bowen, 855 F.2d 668, 674–75 (10th Cir. 1988) (a named
plaintiff maintained a “personal stake” in a class action because his motion for
attorney’s fees was pending at the time the district court denied class
certification).

                                          -8-
certification does not moot the claims of the class. See Franks v. Bowman

Transp. Co., 424 U.S. 747, 755–56 (1976); Sonsa v. Iowa, 419 U.S. 393, 399

(1975). And also, if the named plaintiff’s claim becomes moot during the

pendency of an appeal challenging the district court’s denial of class certification,

the appellate court is not divested of jurisdiction. Geraghty, 445 U.S. at 404 &

n.11. Nor is an appellate court divested of jurisdiction if a defendant offers full

settlement of the named plaintiffs’ claims, over their objections, after the district

court denies class certification. See Deposit Guar. Nat’l Bank v. Roper, 445 U.S.

326, 339 (1980).

      The Supreme Court has also suggested two situations in which a class may

be certified despite the mooting of the named plaintiff’s claim prior to the district

court’s certification decision: (1) when the plaintiff’s claim is “‘capable of

repetition, yet evading review,’” and (2) when the plaintiff’s claim is “inherently

transitory [such] that the trial court will not have even enough time to rule on a

motion for class certification before the proposed representative’s individual

interest expires.” Geraghty, 445 U.S. at 398–400 (quoting Gerstein v. Pugh, 420

U.S. 103, 110 n.11 (1975)). We have previously applied the “capable of

repetition, yet evading review” exception to mootness in the class action context,

permitting a class action to proceed despite the potential mootness of the named

plaintiffs’ claims in a case involving conditions at a school for juvenile boys. See

Milonas v. Williams, 691 F.2d 931, 937–38 (10th Cir. 1982).

                                          -9-
      Additionally, beyond the two exceptions endorsed by the Supreme Court,

some courts have recognized another exception to the mootness doctrine in the

class action context. In Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004),

for example, the Third Circuit held that when the defendant makes a full offer of

judgement—thereby mooting the named plaintiff’s claims—at so early a point in

the litigation that the named plaintiff could not have been expected to file a class

certification motion, the class’s claims are not moot and the case may proceed.

See id. at 348. But where the plaintiff has had ample time to file the class

certification motion, district courts adhere to the general rule that the mooting of

a named plaintiff’s claim prior to class certification moots the entire case. See

Jones v. CBE Group, Inc., 215 F.R.D. 558, 565 (D. Minn. 2003); Greif v. Wilson,

Elser, Moskowitz, Edelman & Dicker LLP, 258 F. Supp. 2d 157, 159–61

(E.D.N.Y. 2003).

      With this framework in mind, we turn to Clark’s argument on appeal.

      B.     Application

      Clark asks us to heed the “flexible” character of mootness, and fit this case

into the framework adopted by the Third Circuit in Weiss. He claims the district

court, sua sponte, “decided [his] individual claims and entered judgment in [his]

favor.” Aplt. Br. at 19. This, he argues, is no different than the situation in

Weiss, where the defendant made a full offer of judgment early in the litigation,

before the named plaintiff had a chance to file his motion for class certification.

                                         -10-
Even if we were to adopt the Weiss rule—a question we do not decide—Clark’s

argument is flawed.

      As an initial matter, it is inaccurate to characterize the district court’s

actions as sua sponte. Prior to entering its case management order, the district

court entertained briefing and argument from the parties. After entering the

order, Clark filed a motion for reconsideration, in which he argued that

reformation should be decided on a class-wide basis. Given this sequence of

events, the district court’s case management order—and its adherence to that

order—cannot be considered a sua sponte mooting of Clark’s claims. See Black’s

Law Dictionary 1464 (8th ed. 2004) (defining “sua sponte” as “[w]ithout

prompting or suggestion”).

      This point is not merely semantic. The procedural history of this case

demonstrates that Clark was fully apprised of the ramifications of the case

management order. The order expressly stated that the district court would only

decide class certification issues “if necessary” after setting the reformation date

of the automobile policy. App. Vol. I at 260. Yet despite the opportunity to do

so during the Clark III appeal, Clark failed to challenge the order or notify this

court of his concerns regarding the potential danger that the vindication of his

claims posed to class-wide relief.

      Clark asserts that any mootness concerns would be obviated if the district

court reconsidered its denial of the motion to intervene, which was filed on the

                                         -11-
same day Clark filed his motion to certify the class. But the intervenors—

represented by the same attorneys who have represented Clark throughout this

litigation—failed to timely appeal the denial of their motion. See Clark v. State

Farm Mut. Auto. Ins. Co., No. 07-1466 (10th Cir. Mar. 19, 2008) (unpublished).

Moreover, the intervenors admitted in their memorandum in support of the motion

to intervene that they were aware of the district court’s decision to adopt State

Farm’s proposed case management order. Nevertheless, they waited to file their

motion to intervene until long after the order was adopted, Clark’s claims were

adjudicated, and the Clark III appeal was heard and decided.

      Because they were not challenged on appeal in Clark III, both the case

management order and the district court’s denial of the motion to intervene have

now become the law of the case and are binding on the parties. “Under the law of

the case doctrine, ‘[a] legal decision made at one stage of litigation, unchallenged

in a subsequent appeal when the opportunity to do so existed, becomes the law of

the case for future stages of the same litigation, and the parties are deemed to

have waived the right to challenge that decision at a later time.’” Weston v.

Harmatz, 335 F.3d 1247, 1255 (10th Cir. 2003) (quoting Concrete Works of

Colo., Inc. v. City and County of Denver, 321 F.3d 950, 992 (10th Cir. 2003)).

The law of the case doctrine is applicable as well to procedural decisions in class

action cases. See Weinman v. Fid. Capital Appreciation Fund (In re Integra

Realty Resources, Inc.), 354 F.3d 1246, 1262 (10th Cir. 2004) (applying the law

                                         -12-
of the case doctrine to a district court’s previous determination of the adequacy of

a class representative); Laffey v. Nw. Airlines, Inc., 740 F.2d 1071, 1091–92 (D.C.

Cir. 1984) (applying law of the case to a district court’s class definition, which

the defendant failed to challenge in a prior appeal).

      Nor do the circumstances suggest we may excuse the law of the case

doctrine here. We depart from the doctrine only in three “exceptionally narrow

circumstances: (1) when the evidence in a subsequent trial is substantially

different; (2) when controlling authority has subsequently made a contrary

decision of the law applicable to such issues; or (3) when the decision was clearly

erroneous and would work a manifest injustice.” In re Integra Realty Res., Inc.,

354 F.3d at 1259 (quoting United States v. LaHue, 261 F.3d 993, 1010–11 (10th

Cir. 2001)).

      Here, there is no new evidence for us to consider, and the applicable law

has not changed. Additionally, nothing in the record suggests the district court’s

case management order and denial of the motion to intervene were “clearly

erroneous” and “work[ed] a manifest injustice.” See id. The district court’s

scheduling decision was made in light of Clark I, in which we ordered the district

court to “decide as an initial matter the effective date of reformation” of the

automobile policy. Clark I, 319 F.3d at 1243 (emphasis added). Furthermore,

district courts generally “have broad discretion to manage their dockets.” Procter

& Gamble Co. v. Kraft Foods Global, Inc., 549 F.3d 842, 849 (10th Cir. 2008).

                                         -13-
As for the denial of the motion to intervene, nothing in the record suggests it was

“manifestly unjust” for the district court to find the motion untimely, given the

long delay in filing and the intervenor’s awareness of the procedural posture of

the litigation. Cf. Plain v. Murphy Family Farms, 296 F.3d 975, 980–81 (10th

Cir. 2002) (refusing to review a motion to intervene when it could have been

appealed at an earlier time); see Lumbermens Mut. Cas. Co. v. Rhodes, 403 F.2d

2, 5 (10th Cir. 1968) (district court did not abuse its discretion in finding motion

to intervene untimely when the proposed intervenor waited four months until after

judgment was entered to file the motion).

      It may have been more prudent for the district court to decide the class

certification issue earlier in the litigation. See Fed. R. Civ. P. 23(c)(1) (the

district court must determine class certification at “an early practicable time” in

the litigation); see also Trevizo v. Adams, 455 F.3d 1155, 1161 (10th Cir. 2006)

(Rule 23 “places the onus on the court to make a [class certification]

determination”). Clark, however, cannot cry foul this late in the litigation—

especially when he was given ample opportunity to challenge any error of the

district court in his previous appeal.

      In sum, the posture of this case compels us to apply the general rule that “a

suit brought as a class action must be dismissed for mootness when the personal

claims of the named plaintiffs are satisfied and no class has been properly




                                          -14-
certified.” Reed, 756 F.2d at 785. Because we decide this case on mootness

grounds, we do not address the district court’s decision to deny class certification.

                                  III. Conclusion

      For the foregoing reasons, we AFFIRM the district court.




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