United States District Court, D. Maryland
MICHAEL A. SCOTT, Plaintiff,
CRICKET COMMUNICATIONS, LLC, Defendant. MICHAEL A. SCOTT, Plaintiff,
CRICKET COMMUNICATIONS, LLC, Defendant.
L. RUSSELL, III UNITED STATES DISTRICT JUDGE.
MATTER is before the Court both on remand from the United
States Court of Appeals for the Fourth Circuit and on several
motions related to Plaintiff Michael A. Scott's putative
class action alleging that Defendant Cricket Communications,
LLC (“Cricket”) violated the Magnuson-Moss
Warranty Act (“MMWA”), 15 U.S.C. §§
2301- 12 (2018). There are five Motions before the Court.
First, there is Scott's Motion to Strike Renewed Notice
of Removal and to Remand, which the Court construes as a
Motion to Remand (ECF No. 60). Next, there are
Cricket's four Motions: Motion to Vacate State Court
Class Certification Order (ECF No. 43); Motion to Vacate
State Court Order Denying Cricket's Motion to Compel
Arbitration (ECF No. 44); Motion to Compel Arbitration (ECF
No. 45); and Motion to Stay Proceedings in Part (ECF No. 46).
All Motions from both parties are opposed, and all are ripe
reviewed the Motions and supporting documents, the Court
finds no hearing necessary. See Local Rule 105.6
(D.Md. 2016). For the reasons outlined below, the Court will
deny Scott's Motion to Strike and Remand, grant
Cricket's Motion to Stay Proceedings in Part, and deny
without prejudice Cricket's Motions to Vacate State Court
Class Certification Order and State Court Order Denying
Cricket's Motion to Compel Arbitration. The Court will
also deny without prejudice Cricket's Motion to Compel
Removal of Scott's Original Complaint
July 2013 and March 2014, Scott purchased two mobile phones
from Cricket. (1st Am. Class Action Compl. [“1st Am.
Compl.”] ¶ 26, ECF No. 41-2). The phones were only
usable on networks that utilized Code Division Multiple
Access (“CDMA”) technology. (Id. at
¶ 4). The phones were also “locked” by
Cricket so they could not be used on an alternate network.
(Id. at ¶ 7). Cricket shut down its CDMA
network in 2015, and allegedly had planned on shutting it
down as early as July 2013, when AT&T acquired Cricket.
(Id. at ¶¶ 4-5, 20, 30).
Cricket shut down its CDMA network, the phones Scott
purchased stopped working. (Id. at ¶¶ 4,
29). The phones could no longer be used for making telephone
calls or for other forms of mobile communication.
(Id. at ¶ 9). The phones also could not be
transferred to and used on another network because Cricket
had locked the devices exclusively to its own network.
(Id. at ¶¶ 6-7). As a result, Scott's
devices, which he purchased for “hundreds of dollars
each, ” are now unusable. (Id. at ¶ 27).
initiated a class action against Cricket in the Circuit Court
for Baltimore City, Maryland on September 24, 2015
(“Scott I”). (ECF No. 2). The Complaint
(the “Original Complaint”) defined the class of
persons on behalf of whom this action was brought as
“[a]ll Maryland citizens who, between July 12, 2013 and
March 13, 2014, purchased a CDMA mobile telephone from
Cricket which was locked for use only on Cricket's CDMA
network.” (Class Action Compl. ¶ 51, ECF No. 2).
In his Original Complaint, Scott alleges that Cricket knew
the phones it sold to Scott and similarly situated customers
were obsolete at the time of the sale. (Id. at
¶¶ 10, 18). Scott pleads that Cricket continued to
sell the CDMA phones as part of a systematic scheme to sell
customers defective phones that would have to be replaced
when the CDMA network shut down. (Id. at
¶¶ 18, 24). Scott maintains that this scheme
breaches express warranties and the implied warranty of
merchantability and fitness for a particular purpose in
violation of the MMWA. (Id. at ¶¶ 60-66).
October 30, 2015, Cricket removed Scott I to this
Court. (ECF No. 1). Scott filed a Motion to Remand to the
state court on November 23, 2015. (ECF No. 15). Cricket then
filed a Motion to Compel Arbitration on December 16, 2015.
(ECF No. 20).
August 19, 2016, the Court granted Scott's Motion to
Remand. (ECF Nos. 33, 34). In its Memorandum Opinion, the
Court concluded that it did not have jurisdiction over this
case under the Class Action Fairness Act
(“CAFA”), 28 U.S.C. § 1332(d)(2)(A) (2018).
(Aug. 19, 2016 Mem. Op. [“Mem. Op.”] at 18, ECF
No. 33). The Court decided that Cricket failed to establish
the citizenship of customers to which it sold CDMA phones in
Maryland during the relevant period. (Id. at 15-16).
As a result, Cricket could not prove by a preponderance of
the evidence that the amount in controversy exceeded the $5,
000, 000.00 CAFA requirement. (See id.).
August 29, 2016, Cricket filed for leave to appeal to the
Fourth Circuit. (ECF No. 37). The Fourth Circuit granted
Cricket leave to appeal on November 8, 2016. (ECF No. 38).
28, 2017, the Fourth Circuit issued an opinion vacating this
Court's judgment and remanding the case for further
proceedings. (July 28, 2017 4th Cir. Op. [“4th Cir.
Op.”] at 14, ECF No. 39). The Fourth Circuit concluded
that this Court had failed to make any finding of fact as to
the amount in controversy. (Id. at 6). The Fourth
Circuit held that Cricket does not need to make “a
definitive determination of domicile” to show that at
least 100 Maryland citizens purchased at least $5, 000,
000.00 worth of CDMA phones; Cricket only needs to provide
enough facts to allow the Court to determine that it is more
likely than not that Scott's case should be in federal
court. (Id. at 11-13).
State Court Proceedings
on August 30, 2016, one day after Cricket filed its petition
to for leave to appeal with the Fourth Circuit, Cricket filed
in the Circuit Court for Baltimore City a Motion to Stay the
proceedings in “until the Fourth Circuit renders a
final decision on Cricket's appeal.” (Def.'s
Mot. Stay Proceedings at 1, ECF No. 48-7). Scott filed a
Consent to Stay on September 2, 2016. (Pl.'s Consent to
Stay Proceedings, ECF No. 48-9). The Circuit Court instituted
a ninety-day stay on September 29, 2016, pending the Fourth
Circuit's ruling on Cricket's petition. (Sept. 29,
2016 Order, ECF No. 48-8).
January 13, 2017, while Cricket's appeal was still
pending, Scott filed a Motion to Lift Stay with the Circuit
Court. (Pl.'s Mot. Lift Stay, ECF No. 48-17). Cricket
opposed Scott's Motion, citing the still-pending Fourth
Circuit appeal. (Def.'s Mem. Opp'n Mot. Lift Stay at
1-2, ECF No. 48-18). On February 3, 2017, the Circuit Court
issued a one-page Order lifting the stay. (Feb. 3, 2017
Order, ECF No. 48-19).
February 17, 2017, Cricket filed a Motion to Compel
Arbitration in the Circuit Court. (Def.'s Mot. Compel
Arbitration, ECF No. 48-26). Scott filed an Opposition to
Cricket's Motion to Compel Arbitration on March 7, 2017.
(Pl.'s Opp'n Def.'s Mot. Compel Arbitration, ECF
No. 48-27). The Circuit Court ultimately issued an Order
denying Cricket's Motion to Compel Arbitration on May 11,
2017. (May 11, 2017 Order, ECF No. 48-29).
March 31, 2017, Scott filed a Motion for Certification of the
Class in the Circuit Court. (Pl.'s Mot. Certification
Class, ECF No. 49-1). Cricket filed an Opposition on May 1,
2017. (Def.'s Opp'n Mot. Class Cert., ECF No. 49-3).
On June 9, 2017, the Circuit Court issued an Order certifying
the Maryland class. (June 9, 2017 Order, ECF No. 49-5)
28, 2017, the same day the Fourth Circuit issued its opinion
in this case, Scott filed a First Amended Class Action
Complaint (“First Amended Complaint”) in the
Circuit Court. (ECF No. 41-2). The First Amended Complaint
contains allegations identical to the Original Complaint,
except it adds a nationwide class. (1st Am. Compl. ¶
52). The nationwide class is defined as: “All persons
within the United States who, between July 12, 2013 and March
13, 2014, purchased a CDMA mobile telephone from Cricket
which was locked for use only on Cricket's CDMA
Cricket's Renewed Notice of Removal
August 11, 2017, Cricket filed a Renewed Notice of Removal in
this Court. (Renewed Notice Removal [“Renewed
Removal”], ECF No. 41). The Renewed Notice of Removal
alleges that this Court has jurisdiction under CAFA.
(Id. ¶¶ 1-12). Scott filed a Motion to
Strike Renewed Notice of Removal and to Remand on September
8, 2017. (ECF No. 60).
August 11, 2017, Cricket filed a Motion to Vacate State Court
Class Certification Order (ECF No. 43), Motion to Vacate
State Court Order Denying Cricket's Motion to Compel
Arbitration (ECF No. 44), Motion to Compel Arbitration (ECF
No. 45), ...