Mudge ends '01 Federal Express class action; Lead plaintiff could not show he received late delivery

By Amelia Flood | Mar 15, 2011

Goldenberg A 10 year-old Madison County class action against Federal Express over alleged late deliveries is over.



A 10 year-old Madison County class action against Federal Express over alleged late deliveries is over.

Madison County Circuit Judge William Mudge granted summary judgment for FedEx March 10 in a case in which the lead plaintiff Stephen Fleisher could not show that he had received a late delivery.

Mudge signed an order March 10 finding that FedEx's "money-back guarantee" is clear and that it was the exclusive remedy for late deliveries.

Since the case was filed, the suit has seen rulings that Fleisher's allegations were without merit and arguments that a class action complaint served as notice to the company that plaintiff had received a late delivery.

Fleisher had claimed that FedEx delivered packages later than it advertised as part of its expedited service.

Fleisher and co-lead plaintiff Inland Marketing Services were represented by Mark Goldenberg of Edwardsville.

Robert Shultz of Heyl Royster in Edwardsville represented FedEx.

Attorneys for the plaintiffs had argued that Fed Ex data showed nearly 10,000 late shipments in Madison County and nearly 18 million nationwide.

Fleisher sought damages for the difference in what he claimed the service was.

It was later determined, however, that Fleisher could not identify any late deliveries of his own.

Fleisher amended his complaint in 2003 adding Inland Marketing as the FedEx account holder.

Discovery ultimately uncovered one late delivery for which Inland sought damages.

In July 2010 FedEx moved for summary judgment.

Madison County Circuit Judge Daniel Stack, who then helmed the case, heard oral arguments on the move in October of last year before entering an order a month later on Nov. 19, 2010.

In that order, Stack dismissed Fleisher's claims with prejudice.

He denied the rest of the summary judgment move while allowing Inland Marketing to argue liability for the single late delivery.

FedEx then filed a motion asking Mudge to reconsider.

In his six-page order, Mudge found that the parties agreed to a contract where the remedy for a late delivery was limited to a money-back guarantee.

Written notice of the late delivery was to be sent to FedEx within 30 days of the occurrence.

The judge also found that Inland did not provide the required notice to get its money back because it did nothing more than file a lawsuit.

"There is no dispute that the complaint was filed long after the 30 day notice period," the order reads. "The Court finds the language of the contract to be clear and unambiguous and provides that a money-back guarantee was Plaintiff's exclusive remedy if FedEx breached its contract."

Mudge took over case last year after several dockets shifted due to Stack's retirement.

Madison County Circuit Judge Barbara Crowder also presided over the case.

The case is Madison case number 01-L-1507.

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Organizations in this Story

FedEx Corporation Heyl Royster

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