Class Certification: Jim Ball Pontiac-Buick-GMC Inc. v. DHL Express Inc.

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U.S. District Court, Western District of New York

Class Certification

Breach of Contract — Lack of Common Form Contract

Jim Ball Pontiac-Buick-GMC Inc. v. DHL Express Inc.
08-CV-761
Judge Curtin

Background: Presently before the court is a motion for class certification. The plaintiff, on behalf of itself and others similarly situated, seeks to recover damages from the defendants for the alleged improper application of jet fuel surcharges for retail shipping services delivered by ground transportation. In May 2010, the court denied the parties cross-motions for summary judgment on liability. 
Regardless of the service category, DHL reserves the right to transport each shipment as it chooses, whether by air or ground. The jet fuel surcharge has been substantially higher than the ground fuel surcharge. The plaintiff alleges that, pursuant to the contract, all shipments transported solely by ground are subject to the ground fuel surcharge, not the jet fuel surcharge. The plaintiff further alleges that DHL often ships “Next Day” or “2nd day” shipments by ground transportation where practicable. However, the plaintiff states that DHL applies the jet fuel surcharge to these shipments in breach of the contract. In support of class certification, the plaintiff alleges that the putative class consists of all individuals and entities who have, at any time from 2003 to the date of any class certification order, paid DHL a jet fuel surcharge for package deliveries within the United States that DHL transported solely by ground transportation.
The plaintiff alleges that the case involves common questions of law, specifically whether the contract allows for the assessment of jet fuel surcharges on shipments traveling solely by ground transportation. A common question of fact applicable to all potential plaintiffs is whether the jet fuel surcharge practice amounts to a breach of contract. The plaintiff also alleges that its claims are typical of the class, that it will fairly and adequately protect the interests of the class, that it has engaged qualified counsel, that it has no conflicts of interest, and that it is prepared to engage in a vigorous prosecution of the case.

Ruling: The motion to certify the class is denied. The court notes its concern that the class appears to be overbroad and not ascertainable. As to the commonality requirement for certification, Judge Curtin finds that commonality is not established since not all of DHL’s customers shipped goods according to the terms of the form contract. “Some had individual agreements, some used Internet-based shipping products, and some bought shipping products from resellers,” observed the court. The commonality requirement is thus not satisfied as the plaintiff cannot advance a collective breach of contract action on the basis of multiple contracts.” Further, the court finds that the plaintiff has not proven by a preponderance of the evidence that its claims are typical of the proposed class as its contractual relationship with the defendant arose out of untypical circumstances.

Daniel C. Oliverio of Hodgson Russ LLP for the plaintiff; Elyse D. Echtman of Orrick, Herrington & Sutcliffe LLP for the defendant