IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

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. 

HONORABLE JEROME B. SIMANDLE 

Civil Action 

No. 11-2658 (JBS/KMW) 

MEMORANDUM OPINION

SIMANDLE, Chief Judge: 

On March 27, 2015, the Court granted in part Plaintiff City 

Select Auto Sales, Inc.’s (hereinafter, “City Select” or the 

“Plaintiff Class”) motion for class-wide summary judgment, and 

entered Judgment in favor of the City Select Class and against 

Defendant David/Randall Associates, Inc. (hereinafter, 

“David/Randall”), in the amount of $22,405,000 for violations of 

the Telephone Consumer Protection Act, 47 U.S.C. § 227 

(hereinafter, the “TCPA”). See generally City Select Auto 

Sales, Inc. v. David/Randall Assocs., Inc., ___ F.Supp.3d ____, 

2015 WL 1421539 (D.N.J. Mar. 27, 2015). Rather than certify the 

Judgment as final and appealable under Rule 54(b), Fed. R. Civ. 

P., however, the Court requested that Class Counsel “propose a 

schedule for the remainder of the case, including [1] whether 

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the Plaintiff Class seeks certification of this Judgment as 

final as to David/Randall Associates, Inc., under Rule 54(b), 

Fed. R. Civ. P., [and 2] whether notice of this judgment should 

be provided to the class members at this time under Rule 

23(d)(1)(B), and other procedural matters.”1 [Docket Item 152 at 

2.] 

 In response, the parties have proposed competing schedules. 

Class Counsel, on behalf of the Plaintiff Class, requests that 

the Court (1) certify the Judgment as final under Rule 54(b) in 

the amount of $22,405,000; (2) stay notice to the Class and 

defer briefing and ruling on attorneys’ fees pending completion 

of any appeal and collection efforts; and (3) set a trial date 

with respect to the claim of individual liability against 

Defendant Raymond Miley, III (hereinafter, “Mr. Miley”). (See 

City Select’s Br. at 3-6; City Select’s Reply at 1, 7.) 

David/Randall, by contrast, requests that the Court (1) delay 

certification of the Judgment as final until the parties 

determine the actual number of approved members of the Plaintiff 

Class; and (2) provide notice to the Plaintiff Class of the 

 

1 In addition, the Court questioned “whether a judgment in a 

significantly smaller sum would likely provide full statutory 

recovery to all probable members of the Class who respond and 

file claims.” City Select Auto Sales, Inc., ___ F. Supp. 3d 

____, 2015 WL 1421539, at *19 n.20. As a result, the Court 

“invited [counsel] to discuss the viability of such a mechanism 

to implement this judgment in the class action context.” Id. 

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proposed extent of the Judgment pursuant to Rule 23(d)(1)(B), 

Fed. R. Civ. P.2 (See David/Randall’s Opp’n at 7-13.) 

For the reasons that follow, City Select’s motion will be 

granted in part and denied in part. Specifically, City Select’s 

motion will be denied to the extent it seeks to certify the 

March 27, 2015 Judgment against David/Randall as final. The 

Court will, however, stay Class notice and briefing on any 

application for attorneys’ fees until further Order of the 

Court, and will refer this matter to U.S. Magistrate Judge Karen 

M. Williams for a final pretrial/settlement conference relative 

to the individual liability claim against Mr. Miley. The Court 

finds as follows: 

1. The Court first addresses whether the Court’s March 

27, 2015 Judgment should be certified as final pursuant to Rule 

54(b), Fed. R. Civ. P.3 “Ordinarily the proceedings in a 

 

2 David/Randall agrees that the individual liability claim 

against Mr. Miley should be listed for trial, and that the Court 

should defer briefing on any application for attorneys’ fees and 

costs until a later stage of the litigation. (See 

David/Randall’s Opp’n at 14-17.) City Select’s motion will, 

accordingly, be granted in these respects. Specifically, the 

Court will refer the parties to U.S. Magistrate Judge Karen M. 

Williams for purposes of a final pretrial/settlement conference, 

and will defer the filing deadline for any application for 

attorneys’ fees until further Order of the Court. See FED. R. CIV.

P. 23(h)(1), 54(d)(1), 54(d)(2)(B) (collectively providing that 

the deadline to file an application for attorneys’ fees may be 

extended by “court order”). 

3 Though the Plaintiff Class requests entry of final judgment, 

its briefing provides no discussion of the applicable standard, 

nor any explanation of why the procedural circumstances of this 

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district court must be final as to [ ] all causes of action and 

parties for a court of appeals to have jurisdiction over an 

appeal under 28 U.S.C. § 1291.”4 Morton Int’l, Inc. v. A.E. 

Staley Mfg. Co., 460 F.3d 470, 476 (3d Cir. 2006) (citations 

omitted). An “order which terminates fewer than all claims, or 

claims against fewer than all parties,” by contrast, fails to 

“constitute a ‘final’ order for purposes of appeal under 28 

U.S.C. § 1291.” Id. (quoting Allis–Chalmers Corp. v. Phila. 

Elec. Co., 521 F.2d 360, 362 (3d Cir. 1975)). 

2. Federal Rule of Civil Procedure 54(b), however, 

provides that when an action involves more than a single claim 

for relief, as here, “the court may direct entry of a final 

judgment as to one or more, but fewer than all, claims or 

parties only if” the Court finds “no just reason for delay.” FED.

R. CIV. P. 54(b). In that way, “Rule 54(b) ‘attempts to strike a 

balance between the undesirability of piecemeal appeals and the 

need for making review available at a time that best serves the 

needs of the parties,’” by “allowing a district court to enter a 

final judgment on an order adjudicating only a portion of the 

matters pending before it in multi-party or multi-claim 

 

litigation counsel in favor of permitting an immediate appeal. 

(See City Select’s Br.; City Select’s Reply.) 

4 28 U.S.C. § 1291 specifically provides that, “the court of 

appeals (other than the United States Court of Appeals for the 

Federal Circuit) shall have jurisdiction over appeals from all 

final decisions of the district courts of the United States...” 

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litigation and thus allowing an immediate appeal.” Elliott v. 

Archdiocese of N.Y., 682 F.3d 213, 220 (3d Cir. 2012) (internal 

quotations and citation omitted). 

3. Certification of a judgment as final under Rule 54(b), 

however, constitutes “the exception, not the rule, to the usual 

course of proceedings in a district court,” and “should not be 

entered routinely or as a courtesy or accommodation to counsel.” 

Panichella v. Pa. R.R. Co., 252 F.2d 452, 455 (3d Cir. 1958). 

Rather, the Rule “should be used only in the infrequent harsh 

case as an instrument for the improved administration of justice 

and the more satisfactory disposition of litigation in the light 

of the public policy indicated by statute and rule.” Id. 

4. “Rule 54(b) thus requires that a district court first 

determine whether there has been an ultimate disposition on a 

cognizable claim for relief as to a claim or party such that 

there is a ‘final judgment.’” Elliott, 682 F.3d at 220 (quoting 

Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7-8 (1980)); 

see also Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 202 

(3d Cir. 2006) (same). “If it determines that there has been 

such a disposition, ‘the district court must go on to determine 

whether there is any just reason for delay,’ taking into account 

‘judicial administrative interests as well as the equities 

involved.’” Elliott, 682 F.3d at 220 (quoting Curtiss–Wright 

Corp., 446 U.S. at 7–8). In other words, the district court 

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must ensure that an immediate appeal actually advances the 

purposes of Rule 54(b), by evaluating (1) the relationship 

between the adjudicated and unadjudicated claims; (2) the 

possibility that the need for review might or might not be 

mooted by future developments in the district court; (3) the 

possibility that the reviewing court might be obliged to 

consider the same issue a second time; (4) the presence or 

absence of a claim or counterclaim which could result in a 

setoff against the judgment to be made final; and (5) other 

factors, such as delay, economic and solvency considerations, 

shortening the time of trial, frivolity of competing claims, 

expense (hereinafter, the “Berckeley factors”). See Berckeley 

Inv. Grp., 455 F.3d at 203 (citation omitted). 

5. Here, the Court’s grant of summary judgment in favor 

of the Plaintiff Class and against David/Randall unquestionably 

constitutes a final determination of all claims against 

David/Randall other than for costs and attorney’s fees. See 

Amboy Bancorporation v. Jenkens & Gilchrist, No. 02- 5410, 2009 

WL 4117355, at *2 (D.N.J. Nov. 18, 2009) (determining that the 

grant of summary judgment in favor of one party constituted a 

final judgment). Nevertheless, in light of the Berckeley 

factors, the Court finds entry of final judgment as to 

David/Randall unwarranted at this time. Critically, the TCPA 

claim against Mr. Miley relies, in essence, upon the same facts 

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and legal theories underpinning the now adjudicated TCPA claim 

against David/Randall. Indeed, the Court only denied summary 

judgment as against Mr. Miley based upon factual disputes 

concerning the level of his involvement in David/Randall’s 

transmission of unsolicited and unlawful facsimile 

advertisements. See City Select Auto Sales, Inc., ___ F. Supp. 

3d ____, 2015 WL 1421539, at *13-*15. As a result, in the event 

the Court certified the March 27, 2015 Judgment as final, there 

is a clear possibility that the Court of Appeals would have to 

analyze the same set of facts, using substantially the same 

legal standards concerning Miley’s liability, in an appeal 

subsequent to the one presently proposed. See Berckeley Inv. 

Group, 455 F.3d at 202 (denying certification under 54(b), based 

upon the similarly between the claims remaining before the 

district court and those proposed for appeal); Amboy 

Bancorporation, 2009 WL 4117355, at *2 (denying certification 

based upon the “legally and factually similar” nature of all 

claims). The avoidance of “piecemeal and duplicative appeals,” 

as would be inevitable here, strongly favors denial of Rule 

54(b) certification in this case. Hogan v. Conrail, 961 F.2d 

1021, 1026 (2d Cir. 1992) (finding that the “interrelationship 

of the dismissed and surviving claims” provides, without more, 

“a reason for not granting a Rule 54(b) certification”) 

(citations omitted); see also Quinn v. Cintron, No. 11-2471, 

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2013 WL 5842554, at *3 (E.D. Pa. Oct. 31, 2013) (denying 

certification in order to avoid a “piecemeal appeal process”). 

Moreover, because the Court intends to list the claim against 

Mr. Miley for trial within 90 days (following the final pretrial 

conference discussed below), certification for appeal may 

actually delay the disposition of the remaining portions of this 

action.5 For all of these reasons, the Court finds that the 

Berckeley factors weigh in favor of denying certification of the 

March 27, 2015 Judgment as final. Class Counsel’s request for 

certification will, accordingly, be denied.6

 

5 Even more, David/Randall opposes certification, and its own 

submissions leave some doubt as to whether any appeal would even 

be taken. (See generally David/Randall’s Opp’n.) These 

circumstances provide further support for denial of 

certification at this time. 

6 Moreover, even in the event the Court certified the March 27, 

2015 Judgment, the Court finds no support for David/Randall’s 

position that the Judgment against David/Randall should, at this 

time, be confined to an amount less than $22,405,000. Nor has 

David/Randall provided any convincing authority in support of 

its position. Indeed, the sole case cited by David/Randall, Ira 

Holtzman, C.P.A. v. Turza, 728 F.3d 682 (7th Cir. 2013), does 

not indicate a judgment in the statutory amount may be reduced, 

at the outset or in its final form, based upon projected claim 

participation. Rather, Holtzman only stands for the proposition 

that, if the defendant “pays more than enough to satisfy all 

claims by class members,” the district court must “decide 

whether the residue,” if any, “goes back to [the defendant],” 

escheats to the state, provides an “augmented recovery for those 

class members who submitted claims,” or goes “to a group that 

will use the money for the benefit of class members.” Id. at 

688-90 (affirming the district court “on the merits,” but 

remanding with instructions to enter a judgment requiring the 

defendant to remit the funds to a specified repository and to 

reconsider “how any remainder” would be applied). Based upon 

counsel for David/Randall’s prior representations concerning 

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6. Finally, the Court turns to the issue of class notice. 

City Select, as stated above, argues that notice of the Judgment 

against David/Randall should be deferred pending appeal (see 

City Select’s Br. at 3-6), while David/Randall asserts that the 

Plaintiff Class must receive notice of “the proposed extent of 

the judgment” at this stage. (David/Randall’s Opp’n at 12 

(emphasis in original) (citation omitted).) 

7. The Court notes, at the outset, that Rule 23 provides 

no imperative to order class notice here. Rather, Rule 

23(d)(1)(B), Fed. R. Civ. P., provides, on its face, that the 

Court may issue orders that “require ... appropriate notice to 

some or all class members of: (i) any step in the action; 

[and/or] (ii) the proposed extent of any judgment.” FED. R. CIV.

P. 23(d)(1)(B)(i)-(ii). In other words, Rule 23(d)(1) “‘does 

not require notice at any stage, but rather calls attention to 

its availability and invokes the court’s discretion.’”7 Walsh v. 

Great Atl. & Pac. Tea Co., Inc., 726 F.2d 956, 962-63 (3d Cir. 

1983) (citation omitted). Courts have “rarely addressed” the 

precise circumstances under which to exercise their 

 

David/Randall’s financial standing, it would appear unlikely 

that this Court will confront such a scenario. Nevertheless, if 

Class Counsel’s success in executing upon the Judgment exceeds 

even counsel for David/Randall’s expectations, this Court too 

would make such a determination. 

7 This procedure can be contrasted with the mandatory notice of a 

class action settlement under Rule 23(c)(2)(B), Fed. R. Civ. P. 

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discretionary notice power under the Rule. Puffer v. Allstate 

Ins. Co., 614 F. Supp. 2d 905, 909 (N.D. Ill. 2009), but appear 

to principally invoke the Rule in the presence of questions 

regarding the adequacy of the class representative, in order to 

notify the class members of newly relevant information, and/or 

when a court denies class certification. See NEWBERG ON CLASS 

ACTIONS § 8.26 (5th Ed.) (describing these three scenarios and 

citing relevant cases). 

8. Here, Class Counsel tethers much of its objection to 

notice at this time to issues pertaining to its entitlement to, 

and recovery of, attorneys’ fees and costs. (See, e.g., City 

Select’s Br. at 5.) The Court, however, finds that basis 

inappropriate, standing alone, to deprive the Plaintiff Class of 

notice of the Court’s March 27, 2015 Judgment. Moreover, the 

Court acknowledges some concern regarding whether the Class list 

prepared by Robert Biggerstaff in March 2012 still contains 

current and accurate contact information for the members of the 

Plaintiff Class.8 [See Docket Item 103-2.] Nevertheless, no 

 

8 For that reason, the Court will direct Class Counsel to work 

with its expert in order to ensure the continued accuracy of the 

contact information reflected on the Class list. [See, e.g., 

Docket Items 36-7 (explaining how Mr. Biggerstaff identified the 

names and addresses of the members of the Plaintiff Class), 103-

2 (setting forth the “Fax Numbers and Associated Address 

Information” for the Plaintiff Class.) In the event Mr. 

Biggerstaff finds himself unable to verify the accuracy of the 

current contact information, the Court may consider requiring 

notice to the Plaintiff Class in order to obtain Class members’ 

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funds presently exist for distribution to the Plaintiff Class, 

and the Court recognizes the high cost and potential confusion 

associated with providing notice. As a result, the Court, in 

its discretion, declines to require any notice to the Class at 

this time. See Williams v. Phila. Hous. Auth., No. 92-7072, 

1993 WL 246086, at *9 (E.D. Pa. June 30, 1993) (finding Rule 

23(d) notice unwarranted at that time). Rather, absent a change 

in circumstances, the Court will require notice when funds 

become available for distribution and when Class Counsel makes 

its application for reasonable attorneys’ fees and costs. See 

Fed. R. Civ. P. 23(h)(1). 

9. An accompanying Order will be entered. 

October 26, 2015 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE 

 Chief U.S. District Judge 

 

current names and addresses and to inform class members of 

developments in the case. 

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