D R Ward Constr Co v. Mitsubishi Rayon Ame ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-19-2009
D R Ward Constr Co v. Mitsubishi Rayon Ame
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3358
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DLD-90 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3358
In Re: PLASTICS ADDITIVES ANTITRUST LITIGATION
OWEN F. SILVIOUS,
Appellant
(Pursuant to Fed. R. App. P. 12(a))
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 05-04157)
District Judge: Honorable Legrome D. Davis
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
February 5, 2009
Before: BARRY, AMBRO and SMITH, Circuit Judges
(Opinion filed: February 19, 2009)
OPINION
PER CURIAM
Owen Silvious, a prisoner proceeding pro se, seeks to appeal the decisions of the
District Court certifying a settlement class, approving a class settlement, and awarding
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attorneys’ fees and expenses to plaintiff’s counsel. Because the appeal is legally
frivolous, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).1
The underlying class action involves complaints by indirect purchasers of “plastic
additives” of price fixing. In September 2007, following six months of settlement
negotiations, the Plaintiffs moved for preliminary approval of a proposed settlement
agreement. The District Court approved and ordered the dissemination of notice, which
was accomplished by publication in a national newspaper. Any objections to the terms of
the settlement by unnamed class members were to be delivered in writing. Only Silvious
filed an objection, arguing that the District Court lacked subject matter jurisdiction to
approve a settlement class encompassing states not named in the complaint. He later filed
an amended objection.
Appellees argue that Silvious lacks standing to appeal because he did not object –
or more precisely, withdrew his objection – prior to class certification and approval of the
settlement. For an unnamed class member to have standing to appeal a decision in a class
action, he or she must have properly raised objections to that decision during the
pendency of the litigation. See Devlin v. Scardelletti, 536 U.S. 1, 8-9 (2002); In re Rite
Aid Corp. Sec. Litig., 396 F.3d 294, 299 (3d Cir. 2005); Fanning v. Acromed Corp. (In re
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A federal court must dismiss the complaint or appeal of a plaintiff proceeding in
forma pauperis if the action is “frivolous.” 28 U.S.C. § 1915(e)(2). The United States
Supreme Court clarified this standard in Neitzke v. Williams, 490 U.S. 319 (1989),
stating that a complaint is frivolous “where it lacks an arguable basis either in law or
fact.” 490 U.S. at 325.
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Orthopedic Bone Screw Prods. Liab. Litig.), 350 F.3d 360, 363 n.3 (3d Cir. 2003). Here,
the District Court viewed Silvious’ amended objection as an attempted withdrawal of his
initial objection, and approved of his withdrawal as required by Federal Rule of Civil
Procedure 23(e)(5).2 We do not agree that Silvious lacks standing, because it is not clear
that he withdrew his objection. Rather, his amended objection appears to have been an
attempt to clarify his opposition to a broad settlement that includes residents of states not
represented by the named parties. As such, Silvious has standing to file the instant
appeal.
Nevertheless, we agree with the District Court that Silvious’ objection, which
forms the basis for his appeal, lacks legal merit. Silvious contends that the District Court
could not certify a settlement class and approve a settlement agreement that includes
unnamed class members in states not represented by the named class members. That is,
the named class members lack standing to represent unnamed class members in other
states. However, a settlement class may be defined more broadly than a class certified for
litigation purposes. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997);
Carnegie v. Household Int’l., Inc., 376 F.3d 656, 660 (7th Cir. 2004). There is no
requirement, in the context of a class settlement, that named class members hail from the
2
Appellees offer no support for the contention that Silvious was required to seek
reconsideration of the District Court order treating his objection as withdrawn prior to
filing an appeal. Indeed, doing so would have been futile, as the District Court issued its
order as to his objection on the same day as it approved the final settlement.
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same states as absentee class members. Rather, Article III standing is determined vis-a-
vis the named parties. See In re Prudential Ins. Co. America Sales Practice Litigation
Agent Actions, 148 F.3d 283, 306 (3d Cir. 1998). “Once threshold individual standing by
the class representative is met, . . . there remains no further separate class standing
requirement in the constitutional sense.” Id. at 306-07 (internal citations omitted). As
such, Silvious’ claim lacks any basis in law or fact and is therefore frivolous.
Accordingly, Silvious’ appeal is dismissed. Appellees’ motion to reconsider the
order granting Silvious’ motion to proceed in forma pauperis is denied.
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