Juliand v. Stanley Services, Inc. (Lawyers Weekly No. 09-010-18)

NO. 2017-01570-BLS2
CHARLES JULIAND, on behalf of himself
And all others similarly situated,
In this putative class action, plaintiff alleges that the defendant Stanley Services Inc., (Stanley) unlawfully assesses a fuel surcharge on the motor vehicles that it tows. The Amended Complaint contains multiple counts, including a claim under G.L.c. 93A. Stanley now moves to dismiss on the grounds that the case is moot in light of Stanley’s proffer of an amount to the individual plaintiff that was more than enough to cover any out-of pocket loss to him. More generally, Stanley argues that the Complaint fails to state a claim upon which relief may be granted. This Court concludes that the Motion must be DENIED.
Briefly summarized, the Complaint states the following. On December 1, 2016 and then again on March 24, 2017, Stanley removed plaintiff Charles Juliand’s car from a street in Jamaica Plain, Massachusetts and towed the car to Stanley’s Jamaica Plain facility. On both occasions, Stanley assessed a fuel charge for the tow — $ 1.80 on December 1 and $ 2.25 on March 24. Massachusetts regulations permits a fuel charge only where the tow in question exceeds five miles and then only if certain information is provided on the tow slip. These tows did not exceed five miles and the tow slips did not provide the requisite information.
The Complaint alleges that Stanley has engaged in a practice of assessing these unlawful charges for years; it seeks relief on behalf of Juliand individually as well as others similarly situated. In addition to seeking certification of the class, the Complaint seeks damages as well as injunctive and declaratory relief. On May 19, 2017, two days before this suit was instituted, plaintiff’s counsel sent a Demand Letter to Stanley pursuant to G.L .c. 93A. Plaintiff amended the Complaint on July 19, 2017 to include a 93A count.
Defense counsel made a formal response to plaintiff’s Demand Letter by letter dated June 21, 2017 (the Response). Its contents are relevant to the issues before the Court. It begins by stating that it is being “provided in the interest of settlement only, and subject to a full reservation of Stanley Service’s rights.” It goes on at some length to outline why the individual and class claims are legally and factually defective. To the extent that there were any omissions of information regarding the fuel surcharge, the Response says that they were the result of “individual oversight” and do not reflect a general policy. On a more conciliatory note, the Response says that it “has taken steps to prevent any future omissions of information to the extent necessary.” It also encloses two checks payable to Juliand “without any conditions and/or restrictions,” each in the amount of $ 380.40. The Response states that this sum represents a full refund, both for the disputed and the “undisputed” amounts of Juliand’s tow bills, with the actual amount trebled to account for the 93A claim. Finally, the Response makes a “full and final” settlement offer on the class claims. Juliand did not cash the checks.
The primary basis for defendant’s motion is that Juliand no long has standing to assert these claims, depriving the Court of subject matter jurisdiction. Juliand lacks standing, the defendant argues, because Stanley has essentially paid (or at least attempted to pay) Juliand more than he could individually recover. In support, it relies on an unpublished decision of a federal
district court. Demmler v. ACH Food Companies, Inc., 2016 WL 4703875 (D. Mass. 2016). In Demmler, plaintiff brought a class action alleging that defendant misrepresented its barbecue sauce as “all natural” when in fact it contained caramel color. Before suit was filed, the defendant, in response to a 93A demand letter from plaintiff’s counsel, tendered to plaintiff $ 75 which represented treble the amount of statutory damages that the individual plaintiff was seeking under 93A. The Court determined that this mooted his claim, noting in particular that the Complaint did not seek injunctive relief or declaratory relief, perhaps because the defendant had discontinued the products at issue.
Putting aside the fact that Demmler has no precedential value, this Court concludes that it is readily distinguishable form the instant case, if only because this case, unlike Demmler, does request injunctive and declaratory relief. Thus, plaintiff’s claim cannot be moot, because the proffered monetary amount does not give the individual plaintiff all that he seeks. See Johansen v. Liberty Mutual Group, Inc., 2016 WL 7173753 (D. Mass. December 8, 2016) (distinguishing Demmler, court applies the same reasoning in denying motion to dismiss on mootness grounds). Defendant argues that it has already agreed to discontinue the policy that is at issue in this case, citing the Response. But the Response says only that Stanley “has taken steps to prevent any future omissions of information to the extent necessary.” This statement – clearly ambiguous as to precisely what has been done — appears in a letter written by counsel that otherwise denies any wrongdoing. In short, it is clearly not enough to render plaintiff’s request for injunctive relief moot.1
Defendant’s remaining arguments require little discussion, since they generally involve
1 There are other reasons for rejecting defendant’s mootness argument; these reasons are set forth in Johansen and in plaintiff’s opposition. This Court finds these other reasons to be persuasive but ultimately unnecessary to support the Court’s ruling.
fact questions that cannot be resolved at this early stage in the case. To the extent the facts ultimately do not support one or more of the counts alleged, that can be dealt with by way of a motion for summary judgement, keeping in mind the BLS’s procedural rule regarding partially dispositive motions.
Janet L. Sanders
Justice of the Superior Court
Dated: January 16, 2018

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