CHARLESTON – Although the U.S. 4th Circuit Court of Appeals told District Judge John Copenhaver he must hear a class action against AT&T Mobility, neither side wants the case to remain in Copenhaver's court.

AT&T Mobility wants him to order arbitration.

Plaintiffs James Strawn and James Staton want him to send the case back to Kanawha Circuit Court, where they filed it in 2006.

They alleged that the former Cingular Wireless improperly charged $2.99 a month for roadside assistance service that customers did not request.

The phone company removed the suit to federal court under the Class Action Fairness Act, arguing that the amount in controversy exceeded the act's $5 million threshold.

The company attached an affidavit stating that it billed 58,800 West Virginia customers for roadside assistance.

The company multiplied that number by $200, the maximum penalty under state consumer law, and calculated the controversy at $11,760,000.

On behalf of Strawn and Staton, Harry Bell of Bell & Bands in Charleston moved for remand to Kanawha County.

Bell argued that the company inflated the amount by counting customers who paid the fee willingly along with those who paid it unwillingly.

Phone company attorney Jeffrey Wakefield answered that he couldn't separate the willing from the unwilling.

Copenhaver declared that the phone company failed to prove federal jurisdiction. He granted Bell's remand motion.

AT&T Mobility appealed, and in June the 4th Circuit reversed Copenhaver.

The appellate court ruled that Bell's class definition did not distinguish between willing and unwilling customers.

When the case returned to Copenhaver's court, AT&T Mobility moved to compel arbitration and to stay discovery.

Tim Yianne of Bell & Bands opposed a stay of discovery on Aug. 25, arguing that Strawn and Staton deserve a chance to challenge AT&T Mobility's affidavit.

Although Yianne did not move again for remand, his brief pointed in that direction.

"Discovery is the only way for the court and the parties to accurately determine if CAFA jurisdiction is satisfied," he wrote.

He wrote that "allowing a party to invoke federal jurisdiction through unchallenged affidavits will promote gamesmanship and forum shopping by defendants who seek to avoid state court venues that otherwise are appropriate forums."

He asked Copenhaver to hold the arbitration motion in abeyance until he has resolved the motion to stay discovery.

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