Smith v. Georgia Energy USA, LLC

259 F.R.D. 684, 2009 U.S. Dist. LEXIS 69812, 2009 WL 2486896
CourtDistrict Court, S.D. Georgia
DecidedAugust 10, 2009
DocketCivil Action No. CV208-20
StatusPublished
Cited by5 cases

This text of 259 F.R.D. 684 (Smith v. Georgia Energy USA, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Georgia Energy USA, LLC, 259 F.R.D. 684, 2009 U.S. Dist. LEXIS 69812, 2009 WL 2486896 (S.D. Ga. 2009).

Opinion

ORDER

ANTHONY A. ALAIMO, District Judge.

Plaintiffs, Jonathan Smith; Streamline Logistics, LLC; Betty Padgett; B & L Express, Inc.; John L. Darnell, Jr.; Henry Edwards; and Linda J. Fifield, filed this putative class action against Defendants, Georgia Energy USA, LLC; Georgia Petro USA, LLC; Fairley Cisco; Cisco Oil, Inc.; Cisco Travel Plaza, Inc.; Cisco Travel Plaza, Inc. II; United Fuel, Inc.; Kuldeep S. Sekhon; Althea Cisco Shave; Tammy Cisco Walker; Jack Ghazi; Kingsland Management, LLC; Kingsland Management II, LLC; Georgia Petro II USA, LLC; Biju Abraham; and Global Energy USA, LLC.

Plaintiffs assert claims under Georgia law for fraud, negligent misrepresentation, negligence, money had and received, unjust enrichment, and for violating Georgia’s Uniform Deceptive Trade Practices Act. Presently before the Court is Plaintiffs’ motion to certify the case as a class action. Certain Defendants, Fairley Cisco, his daughters, Shave and Walker, and their related companies (Cisco Oil, Cisco Travel Plaza, and Cisco Travel Plaza II), have filed a response in opposition. Because class treatment is appropriate under Federal Rule of Civil Procedure 23, Plaintiffs’ motion will be GRANTED, but the Court will alter Plaintiffs’ proposed class definitions and limit the scope of the class to claims arising after 2004.

BACKGROUND

For several years, Fairley Cisco owned, or had a controlling interest in, three filling stations in Camden County, Georgia. Cisco I is located off of Interstate 95 at exit 6, and sold gasoline and diesel fuel to motorists and commercial truck drivers. Cisco II is located off of 1-95 at exit 1, and also sold gasoline and diesel fuel. Cisco Express is located across the street from Cisco I, and sold gasoline only. These stations have sold a large volume of fuel over the past decade, partly because their locations are close to Florida.1 During several recent years, Florida’s gasoline taxes have been higher than Georgia’s gasoline tax rate. Dkt. No. 92, Ex. A.

On February 12, 2008, in response to an anonymous call, the Georgia Department of Agriculture made an unannounced inspection of the three Cisco stations to determine the accuracy of the fuel pumps. State officials determined that many of the pumps were miscalibrated, and dispensed less fuel than indicated to consumers. At least for a time, the state shut the stations down as a result. In connection with the state investigation, fuel pump technicians were called to the stations. One of those technicians, Daniel Wayne Blair, was an employee of a Florida company called Fueling Components. Blah-retrieved historical data from the electronic gasoline pumps at all three locations. The data retrieved by Blair show all calibration changes since the pumps were installed in 2005, including the extent of recalibration, and date and times of recalibration.

The electronic gasoline pumps at the Cisco stations were Gilbarco-manufactured Eclipse model pumps. To prevent tampering, a seal is supposed to be placed on the pump by the last inspector or technician to examine the pump. The Eclipse pumps dispense fuel by counting the number of rotations of a device in the fuel line. This device causes a component part to turn while the fuel passes through the line. These rotations are called “pulses.” For gasoline pumps, the typical test calibration volume is five gallons of fuel, which is equivalent to 1,050 pulses. To adjust the pulse count, the pump cabinet must be unlocked, and the wire seal securing the calibration components removed. When the historical data was retrieved from the Cisco electronic gasoline pumps, most of the wire seals were missing.

[689]*689Lowering the number of pulses causes the pump to dispense less fuel than is indicated on the pump dial. The pump historical data show that pumps at all three stations were miscalibrated routinely to dispense less gasoline than indicated by the dial on the pump. The shortage was approximately one quart per five gallons, or five percent.

Cisco I and Cisco II also sold diesel fuel. Cisco II had about fifteen diesel pumps and Cisco I had approximately eight diesel pumps. None of the truck diesel pumps had the ability to store historical calibration data. The calibration of these pumps was performed with a keypad or by turning a calibration dial, which were located inside the locked pump cabinet. At the time of inspection, around February 2008, none of the truck diesel pumps had any wire seals securing the calibration components. A proving can is a fuel can used to determine a fuel pump’s accuracy, and a fifty gallon can is used for truck diesel pumps. A sight glass on the side of the vessel allows a person to measure whether the pump dispensed the correct amount of fuel. When the technician dispensed diesel fuel at Cisco II, after the stations were shut down by the state, the pump only dispensed forty-eight gallons into the proving can, although the pump indicated that fifty gallons had been pumped. This evidence suggests that diesel customers were being shorted by four percent. The technician noted that the calibration dials on all the diesel pumps had been turned down to their lowest setting.

Plaintiffs are individuals and trucking companies who have purchased gasoline and diesel fuel at the three Cisco stations during the past several years. Cisco owned the stations until December 2006, when the stations were purchased by Sekhon. In early 2008, Sekhon sold the stations to Abraham. Sekhon and Abraham fled the jurisdiction before being served with the complaint.

Plaintiffs’ proposed class definitions are as follows:

Class A: All persons or entities who purchased truck diesel fuel from the Cisco Travel Plaza on Exit 1 off of Interstate 95 in Camden County, from the Cisco Travel Plaza on Exit 6 off of Interstate 95 in Camden County and/or from the Cisco Express on Exit 6 off of Interstate 95 in Camden County during the ten (10) years preceding the filing of Plaintiffs’ Complaint and who received less truck diesel fuel than indicated on the fuel pumps.
Class B: All persons or entities who purchased automotive gasoline from the Cisco Travel Plaza on Exit 1 off of Interstate 95 in Camden County, from the Cisco Travel Plaza on Exit 6 off of Interstate 95 in Camden County and/or from the Cisco Express on Exit 6 off of Interstate 95 in Camden County during the ten (10) years preceding the filing of Plaintiffs’ Complaint and who received less automotive gasoline than indicated the fuel pumps.

DISCUSSION

A class may not be certified unless it meets all the prerequisites of Rule 23(a) of the Federal Rules of Civil Procedure, and the party moving for class certification bears the burden of establishing these requirements. Heaven v. Trust Co. Bank, 118 F.3d 735, 737 (11th Cir.1997). Rule 23(a) requires numerosity, commonality, typicality, and adequacy of representation. In addition, one of the requirements set forth in Rule 23(b) must be satisfied to maintain a class action. In a class action suit for money damages, common questions of law or fact must predominate over individual issues, and the class action device must be the superior method of adjudication. Fed.R.Civ.P.

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Cite This Page — Counsel Stack

Bluebook (online)
259 F.R.D. 684, 2009 U.S. Dist. LEXIS 69812, 2009 WL 2486896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-georgia-energy-usa-llc-gasd-2009.