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Bond v. Cricket Communications, LLC

United States District Court, D. Maryland

December 12, 2017

TIM BOND, on his own behalf and on behalf of all others similarly situated Plaintiffs


          Marvin J. Garbis, United States District Judge.

         The Court has before it Proposed Intervenor Michael Scott's Motion for Stay Pending Appeal [ECF No. 52] and the materials related thereto. The Court has reviewed the materials provided by the parties and finds that a hearing is not needed.


         Plaintiff, Tim Bond (“Bond”) filed this putative class action against Defendant Cricket Communications, LLC (“Cricket”)[2]on May 8, 2015. On September 24, 2015, Michael A. Scott (“Scott”) filed a putative class action against Cricket in the Circuit Court for Baltimore City. Scott's lawsuit was removed to this Court (GLR-15-3330), remanded back to state court, appealed, and then remanded back to federal court. During the pendency of Scott's appeal, the state court granted Scott's motion for class certification, which is now subject to a motion to vacate in federal court. Also pending in Scott's lawsuit is a motion to vacate the state court's order denying Cricket's motion to compel arbitration, a motion to remand the case back to state court, a motion to stay proceedings in part, and a motion to compel arbitration.

         In August 2017, Bond and Cricket mediated a nationwide class settlement in principle. Scott asserts that the settlement is not as favorable to the plaintiffs as the settlement that Scott could obtain.

         Scott's attempt to intervene in Bond's lawsuit was denied as untimely on October 26, 2017. Scott has appealed the Court's denial of his intervention and by the instant motion, seeks a stay pending this appeal.[3]

         Bond and Cricket have subsequently filed a Motion for Preliminary Approval of Settlement [ECF No. 56], but request that the Court rule on the motion only after an order is entered in Scott's lawsuit voiding or vacating the state-court order certifying the class of Maryland citizens. The settlement agreement includes a clause that gives Cricket the unilateral right to terminate the settlement if the Maryland-certified class is not vacated. Therefore, the rendering of a decision in the Scott lawsuit can be considered a practical prerequisite to the effectiveness of the Bond-Cricket Settlement Agreement.


         “A stay is not a matter of right, ” but rather is “an exercise of judicial discretion, ” and the propriety “is dependent upon the circumstances of the particular case.” Nken v. Holder, 556 U.S. 418, 433 (2009)(quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672-73 (1926)). The standards for granting a stay closely resemble the standards for the grant of a preliminary injunction: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)); see also Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970)(stating that the four factors are the law of this circuit).

         “The first two factors of the traditional standard are the most critical.” Nken, 556 U.S. at 434. The party requesting the stay must demonstrate more than a “mere possibility” of relief or irreparable harm. Id. at 434-35 (citations omitted). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of [the court's] discretion.” Id. at 433-34 (citations omitted).


         A. Probability of Scott's Success on Appeal

         Scott argues that an October 26, 2017 decision from the U.S. Court of Appeals for the Eleventh Circuit, [4] which reversed a district court's denial of a motion to intervene, is materially identical to the circumstances herein, and therefore his appeal is likely to succeed. The Eleventh Circuit case, however, is not similar to the instant case. Nor was its underlying motion to intervene denied on the basis of timeliness. See Tech. Training Assocs., Inc. v. Buccaneers Ltd. P'ship, 874 F.3d 692, 694 (11th Cir. 2017). In Tech Training, a lawyer with the firm representing the named plaintiff left the law firm and joined a new law firm, which then filed a competing case with the settling defendant, “deliberately underbid[ding] the movants in an effort to collect attorney's fees while doing a fraction of the work . . . .” 874 F.3d at 697. Under those circumstances, the Eleventh Circuit court found that the movants met the requirements to intervene as of right, and timeliness was never a disputed factor. Id. at 695, 698.

         In the instant case, the Court reviewed the threshold timeliness factors, found that Scott's intervention motion was untimely, and exercised its discretion to deny the motion. Memorandum and Order Re: Intervene 16, ECF No. 47. The Court finds that the reasons for denying Scott's motion remain valid and that the Tech ...

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