White v. Imperial Adjustment Corp. , 75 F. App'x 972 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 2, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-31149
KRISTEN K WHITE, Individually and on behalf of others
similarly situated
Plaintiff - Appellee-Cross-Appellant
v.
IMPERIAL ADJUSTMENT CORP; IMPERIAL FIRE & CASUALTY CO
Defendants - Appellants
EQUIFAX CREDIT INFORMATION SERVICES INC; EQUIFAX, INC
Defendants - Appellants-Cross-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans
No. 99-CV-3804
Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN,*
District Judge.
PER CURIAM:**
Defendants-Appellants Imperial Adjustment Corporation;
Imperial Fire and Casualty Co.; Equifax Credit Information
*
District Judge for the Northern District of Texas,
sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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Services, Inc.; and Equifax, Inc. have filed an interlocutory
appeal under FED. R. CIV. P. 23(f) challenging the district
court’s certification of a class [the “Imperial class”] described
as:
All persons whose consumer reports (also called “credit
reports”) were provided during the time frame of December
20, 1997 to present by computer transmission from the
database of Equifax Credit Information Services, Inc.
(“Equifax”) to Imperial Adjustment Corporation or
Imperial Fire and Casualty Company for the purpose of
locating each such person or in connection with the
investigation of a subrogated claim, without having
obtained the written permission of such consumer.
Specifically excluded from the class are the judges to
whom this case is assigned and members of their immediate
families. Also excluded are the officers, directors,
employees, attorneys and shareholders of Equifax, Inc.,
Equifax Credit Information Services, Inc., Imperial Fire
and Casualty Company, and Imperial Adjustment
Corporation. Also excluded are persons whose consumer
reports were furnished only after the insurance company
or its representative, which received the credit report,
had previously obtained a signed promissory note and/or
a judgment against the consumer whose credit report was
furnished.
Plaintiff-Appellee Kristen K. White cross-appeals the district
court’s decision not to reconsider an earlier ruling denying
certification of a larger class [the “ChoicePoint class”].
“[T]he district court maintains great discretion in
certifying and managing a class action.” Mullen v. Treasure
Chest Casino, L.L.C., 186 F.3d 620, 624 (5th Cir. 1999) (citation
omitted). “We will reverse a district court's decision to
certify a class only upon a showing that the court abused its
discretion, or that it applied incorrect legal standards in
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reaching its decision.” Id. (citations omitted). After a
thorough review, we find that the district court neither abused
its discretion nor applied incorrect legal standards in
certifying the Imperial class. The corrections made by the
district court to the definition of the Imperial class were
consistent both with our mandate in the prior appeal, see White
v. Imperial Adjustment Corp., No. 01-30740, slip op. at 2 (5th
Cir. June 10, 2002), and with FED. R. CIV. P. 23(a) and 23(b)(3).
The Defendants’ additional objections to certification of the
Imperial class are adequately addressed in the district court’s
opinion, so we will not repeat either those arguments or the
district court’s responses here.
Imperial Adjustment Corporation and Imperial Fire and
Casualty Co. also argue in this appeal that the district court
erred in dismissing their counterclaim and striking their
affirmative defense against White, the named Plaintiff. This,
however, is an interlocutory appeal of a class certification
under Rule 23(f), so review of issues other than class
certification is not appropriate at this time. Bertulli v.
Indep. Ass’n of Cont’l Pilots, 242 F.3d 290, 294 (5th Cir. 2001)
(“[U]nder Rule 23(f), a party may appeal only the issue of class
certification; no other issues may be raised.”). The Defendants
must wait until there has been a final disposition of this case
to appeal these issues.
In contrast to the Imperial class, we need not reach the
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merits of the Choicepoint class, as we find that the Plaintiff’s
cross-petition for leave to appeal should not have been granted.
The Plaintiff originally moved for certification of the
Choicepoint class in March 2001. The district court denied that
motion in May 2001, and the Plaintiff did not appeal from that
order. On remand from the Defendants’ first appeal in this case,
the Plaintiff filed a Renewed Motion for Class Certification,
asking the district court to reconsider certifying the larger
Choicepoint class. In her motion, the Plaintiff made superficial
changes to the class definition so that it was slightly different
from the one previously rejected by the district court. In an
August 2002 order, the district court refused to reconsider
certifying the Choicepoint class, finding that the new class
definition was deficient for the same reasons earlier identified.
Because the district court’s order did not grant or deny class
certification, the district court’s decision was not “an order of
a district court granting or denying class action certification”
for purposes of appeal under Rule 23(f). Therefore, appeal from
this order was improper, and appeal from the prior order would be
untimely under Rule 23(f). See FED. R. CIV. P. 23(f) (“A court of
appeals may in its discretion permit an appeal . . . under this
rule if application is made to it within ten days after entry of
the order.”); see also Gary v. Sheahan, 188 F.3d 891, 892 (7th
Cir. 1999) (“[I]f [a] request for reconsideration is filed more
than ten days after the order ‘granting or denying class action
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certification under this rule’, then appeal must wait until the
final judgment.”). Therefore, we dismiss the Plaintiff’s cross-
appeal as improvidently granted.
For the foregoing reasons, we AFFIRM the district court’s
certification of the Imperial class described above, DISMISS the
Plaintiff’s cross-appeal, and REMAND for further proceedings not
inconsistent with this opinion. Each party shall bear its own
costs.
AFFIRMED in part, DISMISSED in part, and REMANDED.
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