UNITED STATES COURT OF APPEALS

for the Fifth Circuit

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No. 92-1489

Summary Calendar

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MCI TELECOMMUNICATIONS CORPORATION,

Plaintiff-Appellant,

VERSUS

CREDIT BUILDERS OF AMERICA, INC.,

Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Texas

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September 7, 1993

On Remand from the Supreme Court of the United States

Before JOLLY, DUHÉ and BARKSDALE, Circuit Judges.

DUHÉ, Circuit Judge: 

MCI Telecommunications Corporation (MCI) sued its customer,

Credit Builders of America, Inc. (Credit Builders), to collect

unpaid charges for telecommunications services. The district court

concluded that it lacked subject matter jurisdiction, and dismissed

the case. We affirmed. MCI Telecommunications Corp. v. Credit

Builders of Am., Inc., 980 F.2d 1021 (5th Cir. 1993). The Supreme

Court granted certiorari, vacated our decision, and remanded the

case with instructions "consider the question of mootness." After

considering this issue, we conclude that the controversy is not

moot, and reinstate our previous opinion.
1 Likewise, when this case was first heard on appeal, Credit

Builders did not file any brief with this court.

2

I.

At the outset, we note that neither party raised the issue of

mootness on appeal. However, we can surmise that the Supreme Court

was alerted to this possibility when counsel for Credit Builders,

in lieu of a brief, filed the following letter with the Clerk of

the Court:

I regret to inform you that neither my client nor my

firm can afford to file a response to this case. My

client is out of business and its representatives gone to

ground.... I cannot reasonably pursue this case without

my client's permission or support.1

We assume that, based on this letter, the Supreme Court concluded

that MCI may no longer have any meaningful remedy and that the case

is therefore moot. 

II.

We have held that a case is not mooted by the fact that an

impecunious judgment debtor may lack the means to satisfy a

judgment. See Cox v. Sunbelt Sav. Ass'n, 896 F.2d 957, 959-60 (5th

Cir. 1990); Triland Holdings & Co. v. Sunbelt Serv. Corp., 884 F.2d

205, 208 (5th Cir. 1989); Ratner v. Sioux Natural Gas Corp., 770

F.2d 512, 516 (5th Cir. 1985). As we stated in Triland Holdings &

Co.:

The general rule is that "[c]laims for damages or other

monetary relief automatically avoid mootness, so long as

the claim remains viable. Damages should be denied on

the merits, not on grounds of mootness." FSLIC, however,

argues that Sunbelt Savings has no assets with which to

satisfy a judgment that might be rendered against it, and

thus even if Triland Holdings and Triland Investments are

successful in proving their claims in the district court
3

they will be unable to collect. We have held that

"[d]ifficulties in formulating a remedy in an otherwise

living case do not evidence the absence of a case or

controversy." In Ratner, we went on to hold that "the

mere possibility that a judgment debtor lacks the means

to satisfy its monetary liability does not kill the

issues in a case. An indigent defendant otherwise could

defeat any lawsuit simply by asserting that his poverty

moots the claims against him." 

884 F.2d at 208 (internal citations omitted).

On the record before us, we cannot say that MCI will never be

able to satisfy its claim against Credit Builders. Because "[w]e

are unable to conclude that all potential forms of relief are

permanently precluded," id., the controversy is not moot. See Cox

v. Sunbelt Sav. Ass'n, 896 F.2d at 960; Triland Holdings & Co., 884

F.2d at 208. Consequently, we reinstate our previous opinion,

which affirmed the district court's conclusion that it lacked

subject matter jurisdiction over MCI's suit to collect a delinquent

phone bill. See Marshall v. Local Union No. 639, Int'l Bhd. of

Teamsters, 593 F.2d 1297, 1301 n.16 (D.C. Cir. 1979) (If a case can

be disposed of on either jurisdictional or mootness grounds, "then

a court should not postpone decision while the other ground is

investigated.").

III.

For the foregoing reasons, we conclude that the controversy

between the litigants is not moot. We reinstate our previous

opinion, MCI Telecommunications Corp. v. Credit Builders of Am.,

Inc., 980 F.2d 1021 (5th Cir. 1993). 

PRIOR OPINION REINSTATED.