Class action lawyer: Lawsuit counts as 'request in writing'

Steve Korris Oct. 29, 2010, 8:39am


Mark Goldenberg admits a client who sued Federal Express in 2001 didn't have a valid class action claim, but he argues that a client he added later can carry the case.

On Oct. 22, Goldenberg abandoned lead plaintiff Stephen Fleischer, who claimed Fed Ex owed him and others for late deliveries.

"After substantial discovery in this action, and after reviewing the extensive service guide and worldwide directory as they affect Fleischer's shipments, plaintiffs are willing to stipulate that Fleischer's claims may be dismissed," Goldenberg wrote.

Inland Marketing Services, second plaintiff since joining the case in 2003, would advance to the leading role.

Inland alleges Fed Ex delivered a shipment almost 20 hours late, in 2001.

According to Goldenberg, Fed Ex data showed nearly 10,000 late shipments in Madison County and nearly 18 million nationwide.

He has moved for summary judgment finding Fed Ex breached contracts.

Fed Ex has moved for summary judgment too, arguing plaintiffs didn't follow policies requiring them to request invoice adjustments in writing before they sued.

Goldenberg responded that a lawsuit counts as a request in writing.

"The service guide does not say the request cannot be contained in a complaint filed in court," he wrote in opposition to summary judgment.

"Plaintiffs have always intended their complaint and first amended complaint as written requests for refund of an overcharge," he wrote.

In 2007, Circuit Judge Barbara Crowder denied a motion to dismiss the case.

Chief Judge Ann Callis transferred the case to Circuit Judge Daniel Stack this July, after assigning Crowder to asbestos cases full time.

Stack plans to retire in December.

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Federal Express

Memphis, TN

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