SC11-1462 – James Soper, et al. v. Tire Kingdom, Inc.

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State: Florida

Court: Supreme Court

Docket No: sc11-1462

Case Date: 01/24/2013

Plaintiff: SC11-1462 – James Soper, et al.

Defendant: Tire Kingdom, Inc.

Preview:Supreme Court of Florida
____________ No. SC11-1462 ____________ JAMES SOPER, et al., Petitioners, vs. TIRE KINGDOM, INC., Respondent. [January 24, 2013] PER CURIAM. We have for review Tire Kingdom, Inc. v. Dishkin, et al., 81 So. 3d 437 (Fla. 3d DCA 2011), which is in express and direct conflict with this Court's decision in Sosa v. Safeway Premium Finance Co., 73 So. 3d 91 (Fla. 2011). We quash the decision of the Third District Court of Appeal in Dishkin with instructions to remand to the Circuit Court of the Eleventh Judicial Circuit of Florida for further proceedings consistent with this Court's decision in Sosa. It is so ordered. PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

CANADY, J., dissenting. Because I conclude that we should recede from our decision in Sosa v. Safeway Premium Finance Co., 73 So. 3d 91 (2011), I would not quash the Third District's decision on review. Sosa marked a sea change in Florida's law governing class actions. The majority's decision here illustrates the deleterious consequences of Sosa in expanding class actions to contexts where they should not be available. I therefore dissent. The Sosa majority's decision misapplied Florida Rule of Civil Procedure 1.220(a). The Sosa majority erred in concluding that the class representative was not required to show that he had a valid claim and in concluding that the trial court properly did not consider factual differences relevant to the defendant's liability to different members of the putative class. The Sosa majority concluded that even though Sosa brought a statutory claim that required proof that Safeway "knowingly" violated section 627.840(3)(b), Florida Statutes (2003), he did not need to provide proof that "Safeway `knowingly' overcharged him in the motion for class certification." Sosa, 72 So. 2d at 105. With regard to the commonality requirement, the Sosa majority stated that 2

Sosa and the putative class members satisfied rule 1.220(a)'s commonality requirement because their claims arose from the same course of conduct and routine billing practice by Safeway and were based on the same legal theory, i.e., Safeway knowingly overcharged Sosa and the class members in contravention of sections 627.840 and 627.835. Id. at 107. Thus, the majority concluded: "Whether Safeway in fact engaged in the common course of conduct that resulted in the overcharges as alleged is a fact question reserved for the jury and does not negate the trial court's determination that, if proven, Safeway's common business practice would have injured Sosa and the putative class members . . . ." Id. at 111. The Sosa majority stated that it was improper to consider "the possibility of mere factual differences in the individual circumstances surrounding each of the putative class members' claims and the variances in defenses to them." Id. at 110. The commonality requirement of Federal Rule of Civil Procedure 23-- which is similar to the commonality requirement of rule 1.220(a)--was the focus of a recent decision of the United States Supreme Court. In Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S. Ct. 2541 (2011), the Supreme Court concluded that the certification of a plaintiff class consisting of female Wal-Mart employees "who allege[d] that the discretion exercised by their local supervisors over pay and promotion matters violate[d] Title VII by discriminating against women," id. at 2547, was not proper because it did not satisfy the commonality requirement of 3

rule 23. Id. The Supreme Court began its analysis by noting that the commonality requirement is often misread because "any competently crafted class complaint literally raises common `questions.'" Id. at 2551 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131-132 (2009)). "Commonality requires the plaintiff to demonstrate that the class members `have suffered the same injury.' This does not mean merely that they have all suffered a violation of the same provision of law." Id. (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). Next, the Supreme Court explained what the plaintiff must show in order to attain class certification. The Court stated: Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule--that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We recognized in Falcon that "sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question," and that certification is proper only if "the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Frequently that "rigorous analysis" will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped. "[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action." Id. at 2551-52 (citations omitted). With regard to what the putative class in Wal-Mart was required to allege for commonality prior to being certified, the Supreme Court stated that 4

proof of commonality necessarily overlaps with respondents' merits contention that Wal

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