IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

CAMDEN VICINAGE 

CITY SELECT AUTO SALES, INC., a 

New Jersey corporation, individually 

and as the representative of a class of 

similarly situated persons, 

 

 Plaintiff, 

 

 v. 

 

DAVID RANDALL ASSOCIATES, 

INC. and RAYMOND MILEY III, 

 Defendants. 

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HONORABLE JEROME B. SIMANDLE 

Civil Action 

No. 11-02658 (JBS/KMW) 

[PROPOSED] ORDER 

 This matter comes before the Court by way of Plaintiff City Select Auto Sales, Inc.’s 

(hereinafter “City Select”) motion regarding entry of final judgment pursuant to FED. R. CIV. P. 

54(b) against David/Randall Associates, Inc., and continuation of the stays entered on October 

26, 2015 staying and deferring notice to the Class, pursuant to Rule 23(h), and briefing and 

ruling on applications for attorneys’ fees until after resolution of any and all appeals, the Court 

having considered the parties’ submissions, and for good cause shown; 

 IT IS this _______ day of _________________, 2016, hereby 

ORDERED that City Select’s motion regarding entry of final judgment pursuant to FED.

R. CIV. P. 54(b) against David/Randall Associates, Inc., and continuation of the stays entered on 

October 26, 2015 staying and deferring notice to the Class, pursuant to Rule 23(h), and briefing 

and ruling on applications for attorneys’ fees until after resolution of any and all appeals and 

collection efforts shall be, and hereby is, GRANTED IN FULL, and it is further 

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ORDERED that the March 27, 2015, Judgment in favor of the Plaintiff Class and against 

David/Randall Associates, Inc., is hereby certified as final pursuant to FED. R. CIV. P. 54(b); and 

it is further 

ORDERED that the stay imposed on October 26, 2015, deferring providing notice to the 

Class pursuant to FED. R. CIV. P. 23(h) of the Judgment against David/Randall Associates, Inc., 

is entered and continued until further order of the Court; and it is further 

ORDERED that the stay imposed on October 26, 2015, deferring briefing and ruling on 

applications for attorneys’ fees is entered and continued until further order of the Court, pursuant 

to FED. R. CIV. P. 54(d)(2)(B)(i) and 23(h)(1). 

 

JEROME B. SIMANDLE 

Chief U.S. District Judge 

 

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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

CAMDEN VICINAGE 

CITY SELECT AUTO SALES, INC., a 

New Jersey corporation, individually and 

as the representative of a class of similarly 

situated persons, 

 

 Plaintiff, 

 

 v. 

 

DAVID RANDALL ASSOCIATES, INC. 

and RAYMOND MILEY III, 

 Defendants. 

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No.: 1:11-cv-02658-JBS-KMW 

PLAINTIFF’S MOTION FOR ENTRY OF AN ORDER CERTIFYING FINAL 

JUDMENT AND CONTINUING THE STAYS ENTERED DEFERRING CLASS 

NOTICE AND BRIEFING ON MOTIONS FOR ATTORNEYS’ FEES 

UNTIL FINAL DISPOSITION OF ALL APPEALS 

 

Alan C. Milstein 

amilstein@shermansilverstein.com 

SHERMAN, SILVERSTEIN, KOHL, ROSE 

AND PODOLSKY 

308 Harper Dr., Ste. 200 

Moorestown, NJ 08057 

Telephone: 856-662-0700 

Daniel J. Cohen (pro hac vice) 

Tod A. Lewis (pro hac vice) 

BOCK, HATCH, LEWIS & OPPENHEIM 

LLC 

134 North La Salle Street, Suite 1000 

Chicago, IL 60602 

Telephone: 312/658-5500 

Attorneys for Plaintiff 

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NOW COMES plaintiff, City Select Auto Sales, Inc. (“Plaintiff”), pursuant to FED. R.

CIV. P. 54(b), 23 (h) and 54(d)(2), and respectfully requests that the Court enter an order (1) 

certifying the Judgment against David/Randall Associates, Inc. (“David/Randall”) as final under 

Fed. R. Civ. P. 54(b) in the amount of $22,405,000; (2) continuing the stay of providing notice to 

the Class and continuing and deferring briefing and ruling on attorneys’ fees until any and all 

appeals are resolved and collection efforts are exhausted. 

PROCEDURAL BACKGROUND

 On March 27, 2015, the Court entered an Opinion, Order and Judgment in this case. See

Doc. 151 (Opinion) and Doc. 152 (Order and Judgment). The Court “[found] that the Plaintiff 

has proved Defendants liable for statutory damages in the amount of $22,405,000, and summary 

judgment will be entered against David/Randall Associates, Inc. for that amount.” Doc. 151, pp. 

55-56; Doc. 152, p. 2. The Court granted Plaintiff’s motion for class-wide summary judgment as 

to David/Randall Associates, Inc., but denied it as to Raymond Miley, III. Id. Therefore, the 

Court ordered that Judgment “shall be entered in favor of the Plaintiff Class and against 

David/Randall Associates, Inc. in the amount of $22,405,000.” Doc. 152, p. 2. 

 The Court did not make the Judgment final and appealable under Rule 54(b). Rather, the 

Court entered a stay of providing notice to the Class and for motions related to attorneys’ fees 

until further order of the Court, and ordered trial to commence to determine whether Raymond 

Miley, III (“Miley”) was individually liable for the faxes at issue.1

 Doc. 166. Jury trial 

commenced on May 23, 2016. Doc. 227. On May 26, 2016, the jury returned a verdict in favor 

                                                            

1 The Class was previously notified of the pendency of this action and advised: “If you do 

nothing, you will remain a member of the Class. You will lose your right to file your own 

separate lawsuit against Defendants about their advertising faxes and you will be bound by the 

result of the lawsuit, whether that result is favorable or unfavorable.” Doc. 106, p. 4.

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Miley, finding that he is not personally liable for the faxes. Doc. 236. The Court then entered 

judgment on the verdict. Doc. 241. 

 Thereafter, the Court asked whether there were any matters precluding entry of final 

judgment against David/Randall in the amount of $22,405,000. Plaintiff submits this motion in 

response to the Court’s query. 

1. The Court Should Certify the Judgment as Final under Rule 54(b). 

 Plaintiff seeks certification of the Judgment as final under Fed. R. Civ. P. 54(b) in the 

amount of $22,405,000, which is based on 44,810 successful unsolicited transmissions 

multiplied by the amount of statutory damages, or $500 each. Doc. 151, pp. 42-43; 47 U.S.C. § 

227(b)(3)(A)-(C). Plaintiff knows of no reason to delay entry of final judgment. 

2. The Court Should Enter and Continue the Stay Deferring Notice to the Class and 

Deferring Briefing and Ruling on Attorneys’ Fees, Until Any and All Appeals are 

Resolved and Collection Efforts are Exhausted. 

 On October 26, 2015, the Court stayed providing notice pursuant to Rule 23(d)(1)(B) to 

the Class of the Court’s March 27, 2015, Judgment against David/Randall under further order of 

the Court. Doc. 166. Plaintiff maintains that notice of the Judgment to the Class should continue 

to be stayed until the resolution of any and all appeals, and collection efforts are exhausted, for 

the reasons Plaintiff articulated to the Court in earlier briefing (Doc. 156): 

 First, should David/Randall appeal, it must post an appeal bond. Second, the likely 

appeals must be briefed and argued before the Third Circuit and a decision rendered before any 

money might be available for distribution to the Class or to Plaintiff’s attorneys. Third, while the 

judgment amount would be clear, the total amount of any recovery against David/Randall and/or 

Miley is not yet ascertained or ascertainable. Fourth, notice to the class, pursuant to Rule 

23(h)(1), will be expensive and could cause considerable confusion if a determination on fees 

and costs is made but circumstances surrounding the judgment or the amount of monies collected 

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change. Thus, Plaintiff maintains it is preferable and more efficient to wait until money is 

recovered and available before telling the Class how much money is available and how the 

money will be distributed. 

 Moreover, pursuant to FED. R. CIV. P. 54(d)(B)(i), a fees motion must be filed no later 

than 14 days after entry of final judgment, unless a court order provides otherwise (emphasis 

added). Similarly, FED. R. CIV. P. 23(h) provides that a claim for an award of attorneys’ fees and 

nontaxable costs must be made at a time the court sets (emphasis added).2

 For these reasons, on 

October 26, 2015, the Court previously stayed and deferred briefing on any application for 

attorneys’ fees until further order of the Court. Doc. 166. Plaintiff requests the Court enter an 

order continuing the stay entered by the Court on October 26, 2015, until after any and all 

appeals have been resolved, and collection efforts are exhausted. 

Any attorneys’ fees and expenses awarded would be paid only from the monies recovered 

from the Defendants. Until monies are collected for the benefit of the Class, it is simply 

impossible to determine an appropriate attorney fee, and a waste of the Court’s resources to wade 

into such a determination. It can also be safely assumed that David/Randall will file a Notice of 

Appeal, seeking review of the Court’s Final Judgment. Moreover, Plaintiff anticipates filing a 

motion for new trial pursuant to FED. R. CIV. P. 59 and foresees appealing the verdict in favor of 

Miley. Additional attorney time and expense will be incurred through the appeals process. After 

monies are collected from David/Randall, Plaintiff will be ordered to file a motion for attorneys’ 

fees and expenses, and a class representative incentive award, to be payable from the collected 

monies. And notice will then be given to the Class under Rule 23(h). Consequently, until the 

                                                            

2 Moreover, before attorneys’ fees and expenses can be awarded, the absent class members first must 

be notified about the requests. Fed. R. Civ. P. 23 (h). 

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appeals and collection efforts are exhausted, it is simply too soon for counsel and the Court to 

make a determination on attorneys’ fees and expenses. 

Therefore, Plaintiff requests the Court enter an order maintaining the stay and deferring 

briefing and ruling on attorneys’ fees until after the Third Circuit has resolved all likely appeals 

and monies are collected from David/Randall (and/or Miley) to benefit the Class. 

WHEREFORE, Plaintiff respectfully requests that the Court enter an order (1) certifying 

the Judgment against David/Randall as final under Rule 54(b) in the amount of $22,405,000; (2) 

entering and continuing the stay deferring notice to the Class pursuant to Rule 23(h), and 

entering and continuing briefing and ruling on attorneys’ fees, until all appeals are resolved and 

collection efforts are exhausted. 

Dated: June 10, 2016 

Respectfully submitted, 

CITY SELECT AUTO SALES, INC., a 

New Jersey corporation, individually and as 

the representative of a class of similarlysituated persons, 

By: /s/ Alan C. Milstein 

One of Plaintiff’s attorneys 

Alan C. Milstein 

SHERMAN, SILVERSTEIN, KOHL, ROSE & 

PODOLSKY, PC 

Eastgate Corporate Center 

308 Harper Dr., Ste. 200 

Moorestown, NJ 08057 

Telephone: 856-662-0700 

Daniel J. Cohen (pro hac vice) 

Tod A. Lewis (pro hac vice) 

BOCK, HATCH, LEWIS & OPPENHEIM LLC 

134 North La Salle Street, Suite 1000 

Chicago, IL 60602 

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Telephone: 312/658-5500 

Attorneys for Plaintiff 

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CERTIFICATE OF SERVICE 

 I hereby certify that on June 10, 2016, I caused the foregoing to be filed using the Court’s 

CM/ECF System which will send notification of such filing to all counsel of record. 

/s/ Alan C. Milstein 

One of Plaintiff’s attorneys 

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