02-0111 BINDER V. RAINBOW

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 02-0111 BINDER V. RAINBOW

Case Date: 11/27/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D., 2002 HARRY BINDER, on behalf of himself and all others similarly situated, Appellant, vs. ** ** ** ** CASE NO. 3D02-111 ** LOWER TRIBUNAL NO. 00-24851

RAINBOW MEDICAL INC., RAINBOW PEDIATRICS INC., M.H. MEYERSON & CO., INC., HUGO D. GOLDSTRAJ** MARCELA C. GOLDSTRAJ, ROBERTO P. NOVO, SANDRA R. GIBLIN, ** MARTIN LEVENTHAL, GINO BERTINELLI, AND DOES 1-50, ** Appellees. **

Opinion filed November 27, 2002. An Appeal from the Circuit Court for Miami-Dade County, Amy N. Dean, Judge. Kipnis Tescher Lippman & Valinsky, and Howard Tescher (Fort Lauderdale); Brian Barry (Los Angeles, California), for appellant. Becker & Poliakoff, and Daniel S.Rosenbaum (West Palm Beach); Hartman & Craven, and Mark R. Kook (New York), for appellees M.H. Meyerson & Co., Inc., and Martin Leventhal; Louise T. Jeroslow, for appellee, Sandra Giblin.

Before LEVY, GERSTEN, and GREEN, JJ.

PER CURIAM. Harry Binder ("Binder") appeals a trial court order denying class certification. We affirm because the complaint

did not meet the requirements for class certification under Florida Rule of Civil Procedure 1.220. Binder purchased shares of Rainbow Medical, Inc. ("RMI") in a private placement offering brokered by co-appellee M. H. Meyerson & Co., Inc. ("Meyerson"). offering, RMI dissolved. breach of fiduciary Soon after the close of the

Binder then filed suit, alleging duty, negligence and negligent

misrepresentation.

Binder based his claim on the contention

that RMI purchasers, when deciding whether to purchase RMI stock, relied on an inaccurate and misleading offering

memorandum prepared by Meyerson. At the evidentiary hearing for class certification, Binder chose not to testify or to call any other witnesses. Neither

did he place the offering memorandum, upon which he based his claim, into evidence. In fact, the transcript of Binder's

deposition was the only evidence Binder submitted. The burden of proof is on the plaintiff to establish that a class should be certified. See State Farm Mutual Automobile

Insurance Company v. Kendrick, 822 So. 2d 516 (Fla. 3d DCA 2002); Bouchard Transportation Co., Inc. v. Updegraff, 807 So.

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2d 768 (Fla. 2d DCA 2002); Baptist Hospital of Miami, Inc. v. Demario, 661 So. 2d 319 (Fla. 3d DCA 1995). burden, the plaintiff must present facts to To meet this support the

allegations.

See KMPG Peat Marwick LLP v. Barner, 799 So. 2d

308 (Fla. 2nd DCA 2001); Barton-Malow Company v. Bauer, 627 So. 2d 1233 (Fla. 2d DCA 1993). See also Baptist Hosp. of Miami,

Inc. v. Demario, 661 So. 2d 319 (Fla. 3d DCA 1995)("must be a sound basis in fact, not supposition, that the requirements of the class action rule have been satisfied"). If the plaintiff

does not meet the burden set by Rule 1.220, a trial court should deny class certification. See Hoechst Celanese Corp. v. Fry, 753 So. 2d 626 (Fla. 5th DCA 2000). The record supports the trial court's finding that Binder failed Binder to did prove not the requirements evidence for to class certification. the conclusory

present

support

allegations in his complaint. not sufficient to satisfy

Therefore, the allegations are the numerosity or commonality

requirements of Rule 1.220.

See State Farm Mutual Automobile

Insurance Company v. Kendrick, 822 So. 2d 516 (Fla. 3d DCA 2002); Hoechst Celanese Corp. v. Fry, 753 So. 2d 626 (Fla. 5th DCA 2000). Accordingly, we affirm the order denying class

certification. Affirmed.

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