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Lusardi v. Xerox Corp.

filed: September 16, 1992; As Corrected Ocotber 6, 1992.

JULES LUSARDI; WALTER N. HILL; JAMES MARR, JR.; AND JOHN F. WEISS, INDIVIDUALLY, AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED; ARTHUR BRICKMAN; MARTIN J. COCCA; CARL B. HEISLER; RAYMOND C. LOYER; DONALD P. MILLER; ROBERT C. PATTERSON; ANTHONY T. SALVATORE; ELDON SHELDON; MICHAEL SYLVESTRI, INDIVIDUALLY, AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED
v.
XEROX CORPORATION, A NEW YORK CORPORATION, JULES LUSARDI, WALTER N. HILL, JAMES MARR, JR., JOHN F. WEISS, ARTHUR BRICKMAN, MARTIN J. COCCA, CARL B. HEISLER, RAYMOND C. LOYER, DONALD P. MILLER, ROBERT C. PATTERSON, ANTHONY T. SALVATORE, ELDON SHELDON, MICHAEL SYLVESTRI, BRUCE A.BLACKIE, RICHARD VINSON, EDWARD BROUGH, AND CHARLES L. MEADOR, APPELLANTS NO. 91-5846; JULES LUSARDI; WALTER N. HILL; JAMES MARR, JR.; AND JOHN F. WEISS, INDIVIDUALLY, AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED; ARTHUR BRICKMAN; MARTIN J. COCCA; CARL B. HEISLER; RAYMOND C. LOYER; DONALD P. MILLER; ROBERT C. PATTERSON; ANTHONY T. SALVATORE; ELDON SHELDON; MICHAEL SYLVESTRI, INDIVIDUALLY, AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED V. XEROX CORPORATION, A NEW YORK CORPORATION APPELLANT NO. 91-5890



On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 83-00809)

Before: Greenberg and Nygaard, Circuit Judges and Pollak, District Judge*fn*

Author: Pollak

Opinion OF THE COURT

POLLAK, District Judge.

This appeal presents the question whether a trial court has jurisdiction to entertain a motion for class certification brought by putative class representatives who have previously settled their individual claims. The district court decided that there was no longer a live "case or controversy" and dismissed the class certification motion as moot. Because we conclude that the district court correctly determined that it lacked jurisdiction to address the merits of the class certification issue once there was neither a plaintiff nor a class, we affirm.

I.

This age discrimination case, filed in the District Court for the District of New Jersey more than nine years ago, is, from a procedural perspective, a cautionary tale. It has been assigned to three different district court Judges and has twice been addressed here. As this case comes to this court for the third time, some irony attaches to efforts to breathe new life into age discrimination claims that are so old.

On March 8, 1983, Jules Lusardi and three other former employees filed a class action against the Xerox Corporation ("Xerox"), alleging violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621-634 (West 1985). An amended complaint, filed March 24, 1983, claimed that between 1980 and 1983 Xerox engaged in a nationwide policy and practice of targeting older salaried workers for workforce reductions to create openings for younger employees.*fn1 Plaintiffs sought certification of a class consisting of various former, present and future salaried employees of Xerox. On August 31, 1983, Judge Stern refused to allow a Rule 23(b)(2), Fed. R. Civ. P., class action, but ordered that he would conditionally certify an opt-in class under § 7(b) of the ADEA upon the filing of a second amended complaint.*fn2 The second amended class action complaint, filed October 6, 1983, added nine additional named plaintiffs, making a total of thirteen.

On January 31, 1984, Judge Stern conditionally certified an ADEA class including Xerox salaried employees in the 40-70 age group "who in the period May 1, 1980 through March 31, 1983 have been terminated or required to retire from employment at an age less than seventy . . . " App. at 94. (The January 31, 1984 order followed from an opinion filed by Judge Stern in August, 1983. See Lusardi v. Xerox Corporation, 99 F.R.D. 89 (D.N.J. 1983)). The conditional certification was entered without prejudice to the respective parties' rights to move for decertification of the class. On February 1, 1984, Xerox appealed Judge Stern's order and petitioned for a writ of mandamus. This court denied Xerox's petition for mandamus and, thereafter, dismissed the appeal for lack of jurisdiction, concluding that a conditional certification order was not a properly appealable final judgment or "collateral order". See Lusardi v. Xerox Corp., 747 F.2d 174 (3d Cir. 1984).

Following the dismissal of the appeal, the named plaintiffs sent notices of the litigation to more than 23,500 past and present Xerox employees, 1,312 of whom elected to join the conditionally certified class. From those 1,312, the parties agreed to choose a random fifty-one conditional class members to determine whether the opt-ins were "similarly situated" to the thirteen named plaintiffs within the meaning of 29 U.S.C. § 216(b), as incorporated by 29 U.S.C. § 626(b). Upon completion of discovery on class action issues, Xerox moved to decertify the class; at about the same time, the case was reassigned to Judge Lechner. Judge Lechner granted Xerox's motion to decertify the class on the ground that the members of the proposed class were not similarly situated.*fn3 See Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987).

Plaintiffs appealed Judge Lechner's decertification order and petitioned for a writ of mandamus. This court dismissed plaintiffs' appeal as interlocutory, but granted plaintiffs' petition for a writ of mandamus, directing the district court to vacate its holding insofar as it purported to require an individual to file timely age discrimination charges with the EEOC before joining the class action. See Lusardi v. Lechner, 855 F.2d 1062 (3d Cir. 1988). On remand, Judge Lechner noted that the portion of his prior opinion dealing with administrative filing requirements was "not a key element in [his] reasoning", and concluded once again that the opt-ins were not similarly situated and the class should be decertified. See Lusardi v. Xerox Corp., 122 F.R.D. 463, 464 (D.N.J. 1988). A notice of decertification was sent out to the former members of the conditional class informing them that their consents to join the action had been revoked and that they were no longer members of the class and could pursue their claims as individuals.

Following Judge Lechner's second order decertifying the class, Xerox requested that Judge Politan-- to whom the case had meanwhile been reassigned*fn4 -- sever the individual claims of the named plaintiffs and order separate trials or, alternatively, consolidate the claims for the limited purpose of trying the common allegation of a corporate practice of age discrimination. On April 24, 1989, Magistrate Judge Hedges, to whom Judge Politan had referred the case, ordered a consolidated trial on the issue of corporate policy and separate trials on the thirteen individual claims.*fn5

After lengthy settlement negotiations, the parties entered into a Memorandum of Understanding (MOU) in December 1990, in which the named plaintiffs agreed to a "full and unconditional General release of all claims in the Action, Covenant not to Sue, and Stipulation of Confidentiality . . . . relating to settlement of all individual claims in the Action, including any such individual claims based upon an allegation of a pattern or practice of age discrimination." App. at 1932. With regard to the certification issue, the MOU stated:

The parties acknowledge that it is the plaintiffs' intention to make application to the Court as putative class representatives, for a hearing seeking recertification of a class. Xerox, however, makes no representations or warranties and takes no position as to the merits of plaintiffs' standing or legal entitlement to continue to act as putative class representatives. Plaintiffs expressly assume all risks and responsibilities associated with their intention to continue to act as putative class representatives and any failure of plaintiffs to perfect their standing to assert class claims shall not vitiate this agreement.

App. at 1931. The MOU further provided on this issue:

7. Xerox agrees that it will not assert that the within settlement is a bar to plaintiffs' attempt to move for recertification or to seek an intervenor for class certification.

8. Xerox agrees that it will not invoke the law of the case doctrine or otherwise argue that the findings and decisions of the Honorable Alfred E. Lechner . . . bar or otherwise preclude the Court from considering, and ruling upon an application by plaintiffs to recertify a class.

9. Nothing in this Memorandum, however, shall be deemed to constitute a waiver of any objection or defense by Xerox Corporation as to the propriety or sufficiency of any proposed class or any other representative action or of plaintiffs' right or ability to maintain a class or any other representative action.

App. at 1933-1934.

Pursuant to the terms of the MOU, the parties then executed the "General Release, Covenant Not to Sue, and Stipulation of Confidentiality" ("the Agreement"). In the Agreement, the named plaintiffs released Xerox of liability for any individual claims in that case, and each plaintiff

reserved [his or her] right to act as a class representative upon the express understanding that any relief secured by any such class shall not obligate Xerox to pay me or my attorneys any additional sums relating to claims under this Release beyond those paid to me and my attorneys pursuant to this settlement.

App. at 1941. The Agreement continued "I fully understand that Xerox takes no position as to my ability to continue to act as a class representative after the execution of this Release, but Xerox will not oppose my standing on the basis of this Release." App. at 1941.

At a hearing conducted on December 18, 1990, the parties asked Judge Politan to execute the MOU and place it in the record under seal. Judge Politan agreed to do so, adding that it was his "understanding that after this is over that we still have remaining the question of whether or not there should be a class certification in this case and that both parties want to me hold . . . in essence a de novo hearing, on the issue of class certification." App. at 1946. Judge Politan noted that although Judge Lechner had previously ruled on class certification,

it is understood that Judge Lechner's ruling is not binding upon me as either law of the case, precedent or anything of that nature, but that both parties are free to use such information as came out of that prior proceeding or proceedings as they choose in support of or in defense of their respective positions in the matter. In other words, I would be like a criminal defendant. I would start off with a clean slate.

App. at 1947. On February 8, 1991-- the district court entered a Stipulation and Order, dismissing all of the individual claims of the named plaintiffs. App. at 1949-50.

On March 29, 1991, the plaintiffs filed a de novo motion to certify four subclasses. Xerox opposed the motion, arguing, inter alia, first, that the court lacked procedural authority to certify four previously unidentified subclasses, and, second, that the dismissal of the plaintiffs' individual claims deprived the district court of jurisdiction to address the merits of class recertification. Plaintiffs, in turn, filed an amended motion requesting the court to vacate its February 8th dismissal "as improvidently entered." Notwithstanding that they had stipulated to the entry of the February 8th dismissal, plaintiffs contended that it should be replaced with an order dismissing the individual damage claims of the named plaintiffs and declaring "that they have maintained a personal stake in the controversy sufficient to satisfy Article III Constitutional 'case or controversy' requirements." App. at 1978.

On July 15, the district court held a hearing on these motions, and, on August 13th, the court issued a letter opinion dismissing the class action claims as moot and dismissing the case in its entirety because "there no longer remains a live 'case or controversy' within the meaning of Article III of the Constitution."*fn6 App. at 2038. Judge Politan noted that an order dismissing the class action claims as moot should have been entered as soon as the individual claims were settled. Because such an order had not been entered on February 8, 1991, Judge Politan announced that the time to appeal Judge Lechner's second decertification order would begin to run upon entry of his August 13th letter opinion on the docket (i.e. on August 15, 1991).

Plaintiffs filed a motion for reconsideration under Rule 59(e) on August 26, 1991. At the same time, plaintiffs requested the court to allow four prospective intervenors from the putative class to file a complaint-in-intervention. In a September 30th letter opinion, the district court reiterated that it did not have subject matter jurisdiction to consider the merits of plaintiffs' motion to certify subclasses and denied the motion for intervention because, among other reasons, "there is no live case or controversy into which the applicants may intervene." App. 2085-86.

On October 16, 1991, the named plaintiffs filed a notice of appeal from Judge Politan's September 30th order.

II

At oral argument, appellants presented their two preferred outcomes to this appeal: reversal of Judge Politan's ruling that the class action claims were moot or reversal of Judge Lechner's 1988 decertification order. Because of alleged defects in the notice of appeal, we must decide, as an initial matter, whether we have jurisdiction to review Judge Lechner's order.*fn7

In his August 13th letter opinion, Judge Politan informed the named plaintiffs that, although he was dismissing their motion to certify as moot, they could appeal Judge Lechner's 1988 decertification order. Apparently disregarding this ...


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