HARRY BINDER, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, APPELLANT,
v.
RAINBOW MEDICAL INC., RAINBOW PEDIATRICS INC., M.H. MEYERSON & CO., INC., HUGO D. GOLDSTRAJ, MARCELA C. GOLDSTRAJ, ROBERTO P. NOVO, SANDRA R. GIBLIN, MARTIN LEVENTHAL, GINO BERTINELLI, AND DOES 1-50, APPELLEES
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Harry Binder appealed a trial court order denying class certification in a securities dispute involving Rainbow Medical, Inc. The appellate court affirmed the denial, finding that Binder failed to present sufficient evidence to satisfy the numerosity and commonality requirements under Florida Rule of Civil Procedure 1.220.
No. The plaintiff failed to meet his burden of proving class certification requirements because he did not present facts supporting the allegations in his complaint, specifically failing to establish the numerosity and commonality requirements of Rule 1.220.
[1] A plaintiff bears the burden of proving that a class should be certified.
[2] To satisfy the burden of proof for class certification, a plaintiff must present facts supporting the allegations in the complaint.
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Join FLexlaw to unlock all legal intelligence“The burden of proof is on the plaintiff to establish that a class should be certified.”
Establishes the foundational principle that plaintiffs bear the burden of proving all elements required for class certification.
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Join FLexlaw to unlock all legal intelligenceBinder purchased shares of Rainbow Medical, Inc. in a private placement offering brokered by M.H. Meyerson & Co., Inc. Shortly after the offering clos…
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PER CURIAM.
Harry Binder (“Binder”) appeals a trial court order denying class certification. We affirm because the complaint did not meet the requirements for class certification under Florida Rule of Civil Procedure 1.220.
Binder purchased shares of Rainbow Medical, Inc. (“RMI”) in a private placement offering brokered by co-appellee M.H. Meyerson & Co., Inc. (“Meyerson”). Soon after the close of the offering, RMI dissolved. Binder then filed suit, alleging breach of fiduciary duty, negligence and negligent misrepresentation. Binder based his claim on the contention that RMI purchasers, when deciding whether to purchase RMI stock, relied on an inaccurate and misleading offering memorandum prepared by Meyerson.
At the evidentiary hearing for class certification, Binder chose not to testify or to call any other witnesses. Neither did he place the offering memorandum, upon which he based his claim, into evidence. In fact, the transcript of Binder’s deposition was the only evidence Binder submitted.
The burden of proof is on the plaintiff to establish that a class should be certified. See State Farm Mutual Automobile Insurance Company v. Kendrick, 822 So. 2d 516 (Fla. 3d DCA 2002); Bouchard Transportation Co., Inc. v. Updegraff, 807 So. 2d 768 (Fla. 2d DCA 2002); Baptist Hospital of Miami, Inc. v. Demario, 661 So. 2d 319 (Fla. 3d DCA 1995). To meet this burden, the plaintiff must present facts to support the allegations. See KMPG Peat Marwick LLP v. Barrier, 799 So. 2d 308 (Fla. 2nd DCA 2001); Barton-Malow Company v. Bauer, 627 So. 2d 1233 (Fla. 2d DCA 1993). See also Baptist Hosp. of Miami, Inc. v. Demario, 661 So. 2d 319 (Fla. 3d DCA 1995)(“must be a sound basis in fact, not supposition, that the requirements of the class action rule have been satisfied”). If the plaintiff does not meet the burden set by Rule 1.220, a trial court should deny class certification. See Hoechst Celanese Corp. v. Fry, 753 So. 2d 626 (Fla. 5th DCA 2000).
The record supports the trial court’s finding that Binder failed to prove the requirements for class certification. Binder did not present evidence to support the conclusory allegations in his complaint. Therefore, the allegations are not sufficient to satisfy the numerosity or commonality requirements of Rule 1.220. See State Farm Mutual Automobile Insurance Company v. Kendrick, 822 So. 2d 516 (Fla. 3d DCA 2002); Hoechst Celanese Corp. v. Fry, 753 So. 2d 626 (Fla. 5th DCA 2000). Accordingly, we affirm the order denying class certification.
Affirmed.
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Seminole Cnty. v. Tivoli Orlando Assocs. Ltd., 920 So. 2d 818 (Fla. 5th DCA 2006)…tnesses or present any evidence other than three depositions to support the conclusory allegations in its complaint, failed to present facts to support its class allegations, and did not meet the burden set by rule 1.220. See Binder v. Rainbow Med., 831 So. 2d 254, 255-56 (Fla. 3d DCA 2002); see also Marco Island Civic Ass’n v. Mazzini, 805 So. 2d 928, 930 (Fla. 2d DCA 2001). This failure is most noticeable with respect to Tivoli’s unverified complaint alleging typicality. See Barton-Malow Co., 627 So. 2d at…
Authorities Cited
- Baptist Hosp. OF Miami, Inc. v. Demario, 661 So. 2d 319 (Fla. 3d DCA 1995)
- Bouchard Transp. Co., Inc. v. Updegraff, 807 So. 2d 768 (Fla. 2d DCA 2002)
- Barton-Malow Co. & Liebtag v. Bauer, 627 So. 2d 1233 (Fla. 2d DCA 1993)
- State Farm Mut. Auto. Ins. Co. v. Kendrick, 822 So. 2d 516 (Fla. 3d DCA 2002)
- Hoechst Celanese Corp. & Shell Oil Co. v. FRY, 753 So. 2d 626 (Fla. 5th DCA 2000)
- KPMG Peat Marwick LLP v. Barner, 799 So. 2d 308 (Fla. 2d DCA 2001)