WEST VIRGINIA RECORD

CHARLESTON – U.S. District Judge John Copenhaver disappointed AT&T Mobility the first time he ruled that he lacked jurisdiction over a class action against the company. In a turnabout, now AT&T Mobility hopes he will rule again that he lacks jurisdiction.

The first time, Copenhaver sent the case to Kanawha County, where it started, but the Fourth Circuit appeals court in Richmond reversed his decision and sent it back to him.

This time, AT&T Mobility wants him to bounce it to an arbitrator.

Plaintiffs James Strawn and James Staton want him to allow discovery on jurisdiction, but in a Sept. 5 reply Jeffrey Wakefield of Charleston called discovery a delay tactic.

"Plaintiffs recognize that ATTM has pending before this Court an insurmountable motion to compel arbitration and Plaintiffs' request for discovery, with a concomitant deferral of the arbitration motion, is a futile effort to avoid the inevitable," he wrote.

Strawn and Staton allege that AT&T Mobility and predecessor Cingular Wireless improperly charged monthly roadside assistance fees.

Harry Bell of Bell and Bands in Charleston filed their suit in Kanawha County, but the phone company removed it to U.S. district court.

The company argued that federal jurisdiction applied under the national Class Action Fairness Act, because the amount in controversy exceeded $5 million.

The company estimated the amount in controversy at $11,776,000, multiplying 58,800 customers by damages under West Virginia consumer law at $200 per customer.

Strawn and Staton moved for remand. Copenhaver granted it last year, ruling that AT&T Mobility failed to estimate the number of customers who paid the fee unwillingly.

AT&T Mobility appealed, and in July the Fourth Circuit reversed Copenhaver.

Justice Paul Niemeyer wrote, "The class is not defined as those willing or unwilling to retain the program, but rather as those 'who were not given an option.'"

When the case returned to Copenhaver's court, AT&T Mobility moved for arbitration.

Strawn and Staton moved to stay a ruling on arbitration pending
discovery on the class.

Wakefield pleaded in his Sept. 5 brief that, "Plaintiffs cannot now seek discovery about a raw number which they declined to challenge when the record was being developed on the jurisdictional issue.

"Plaintiffs should not now be permitted to revisit the removal issue when the question of jurisdiction was resolved by the Fourth Circuit based upon an unchallenged record."