CHARLESTON – U. S. District Judge John Copenhaver remanded a proposed class action over AT&T Mobility's roadside assistance fee to Kanawha Circuit Court on Sept. 26.
Attorney Harry Bell Jr. of the Charleston law firm of Bell & Bands now can start the suit where he tried to start it a year ago.
Copenhaver ruled that the defendant, formerly Cingular Wireless, failed to prove that the case involved enough money to invoke his jurisdiction.
Bell sued Cingular at the county courthouse in September 2006, on behalf of James Strawn of Charleston and James Staton of Meadow Bridge.
Strawn and Staton claimed Cingular charged $2.99 a month for roadside assistance though they had not enrolled in the roadside plan.
They alleged violations of state consumer fraud laws.
They sought to represent a class of all West Virginians who were charged without enrolling.
Cingular removed the suit to U. S. district court last November, citing the Class Action Fairness Act that Congress enacted in 2005.
The law requires removal if a controversy exceeds $5 million.
Jeffrey Wakefield of Charleston argued that the class would include up to 62,000 customers with potential claims up to $200 each.
That would push the total to $12,400,000, far above the threshold.
The class, however, would include only those who did not enroll.
Copenhaver wanted to know how many enrolled, but when he couldn't get an answer he figured his jurisdiction ran out.
He wrote, "…the defendant must satisfy the court at the removal stage that the amount in controversy exceeds $5,000,000."
He wrote, "Cingular admits it has no way of knowing whether the fee was authorized."
He wrote, "…a defendant must offer more than a bare allegation…"
He wrote that Cingular billed about 58,800 West Virginians for roadside assistance, but he wrote that some asked for it.
He wrote, "Plaintiffs' putative class is obviously much narrower."