Docstoc

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT COURT_ IN AND .doc

Document Sample
IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT COURT_ IN AND .doc Powered By Docstoc
					                                              IN THE CIRCUIT COURT OF THE 11TH
                                              JUDICIAL CIRCUIT COURT, IN AND
                                              FOR MIAMI-DADE, FLORIDA

HENRY VEGA, individually and as               CASE NO.:
representative of all other similarly
situated,

         Plaintiff,

-vs-                                          “CLASS REPRESENTATION”

T-MOBILE USA, INC., a foreign
corporation,

       Defendant.
__________________________________/

                               CLASS ACTION COMPLAINT

       The Plaintiff, HENRY VEGA, individually and on behalf of all others similarly situated,

sues the Defendant, T-MOBILE USA, INC. (“T-MOBILE”), and states:

       1.      This is a class action complaint wherein the Plaintiff seeks, individually and on

behalf of all others similarly situated, to recover lost wages and for unjust enrichment from his

former employer, T-MOBILE USA.

                                    Jurisdiction and Venue

       2.      Plaintiff HENRY VEGA is a resident of Miami-Dade County, Florida.

       3.      Defendant T-MOBILE. is a Washington corporation with its principal place of

business in Bellevue, Washington.

       4.      This Court has personal jurisdiction over the Defendant, pursuant to Fl.Stat.

§48.193, in that the Defendant: (a) operated, conducted, engaged in, or carried on a business or

business venture in this State or has an office or agency in this State; (b) breached a contract in
this State by failing to perform acts required by the contract to be performed in this State; and/or

(c) engaged in substantial and not isolated activity within this State.

       5.      Jurisdiction is vested in the Circuit Court in that the damages of the class

members, as aggregated, meet the monetary jurisdictional minimum of the Circuit Court. This

notwithstanding, while the amount of monetary damages sought in this lawsuit exceeds

$15,000.00, exclusive of interest, costs, and attorneys’ fees, the Plaintiff’s claim does not exceed

$74,999.99 nor do those of any member of the class.

       6.      Venue is proper in this Court pursuant to Fl.Stat. §47.051.

                                        General Allegations

       7.      T-MOBILE is a leading provider of nationwide wireless services and is the

subsidiary of Deutsche Telekom’s T-Mobile International.             T-MOBILE services some 17

million customers in the United States and provides international services through its parent,

Deutsche Telekom’s, network in Europe. T-MOBILE has more than 26,000 employees across

the country.

       8.      T-MOBILE markets and offers for sale to its customers a prepaid plan for cellular

phones that operates as a “pay as you go” service. The prepaid plan allows customers access to

nationwide long distance, national roaming on the T-MOBILE network, voice mail, caller

identification, call waiting, and access to international dialing in over 150 countries.

       9.      Under the prepaid plan, the customer does not have an annual contract or monthly

bill. Instead, the customer prepays all charges for using the service. When the customer uses his

cellular phone, the balance in the customer’s account is reduced by the charges attributable to the

customer’s use of the service. All charges for these prepaid plans, however, are paid up front,
such that a customer may not cancel the account, and there can be no early termination by the

customer.

       10.     The prepaid plan service expires within a certain time period as disclosed in the

customer’s agreement with T-MOBILE. Under such circumstances, any unused balance is lost

and is otherwise forfeited to T-MOBILE.

       11.     The T-MOBILE prepaid plan service is non-refundable and unused minutes are

not redeemable for cash.

       12.     Plaintiff HENRY VEGA was employed by T-MOBILE as a “Retail Sales

Representative” at Store #1300, located in the Miami International Mall at 1455 N.W. 107th

Avenue, Miami, Florida 33172. As a Retail Sales Associate, Plaintiff’s duties included sales and

customer service. Plaintiff was employed by T-MOBILE at this location and in this capacity

from April 2004 through July 2005.

       13.     Plaintiff’s pay scale was a base pay plus commission pay structure. Plaintiff was

paid $9.75 per hour and received commissions based upon the number of clients activating

accounts.

       14.     For general cellular phone activations, the Plaintiff received commissions which

were, however, subject to charge-backs by T-MOBILE for deactivations by the customers. For

example, if a customer purchased a two year plan, the Plaintiff would be credited with the

commission upfront even though the contract was for two years and was subject to cancellation

or breach by the customer. In the event of a cancellation or breach by the customer wherein the

contract was not honored, T-MOBILE would charge-back the account to the Plaintiff and

reclaim part or all of that commission previously paid or accredited to the Plaintiff.
       15.        T-MOBILE’s prepaid plans, however, operated differently. Under a prepaid plan,

the terms of the customer’s agreement with T-MOBILE were honored upon entering into the

agreement. T-MOBILE was paid up-front for all services to be performed by T-MOBILE under

the agreement and, therefore, T-MOBILE bore no risk of non-payment on the prepaid plan

accounts.

       16.        This notwithstanding, when the prepaid plans expired according to their

designated time periods or use of all prepaid minutes, T-MOBILE would account for the

expiration in their systems as a “deactivation.” This deactivation would, in turn, result in a

charge-back to the Plaintiff’s, and other similarly situated employees’, commissions.

Consequently, even though T-MOBILE received the full benefit of its agreement with the

prepaid plan customers, T-MOBILE’s commission based employees lost the benefits of those

sales and the resulting commissions.

       17.        T-MOBILE has unfair and unjustly profited from its internal systems error by

unduly charging back its employees on the prepaid plans and retaining its employee’s wages for

its own use and benefit.

       18.        All conditions precedent prior to filing this lawsuit have occurred or otherwise

been satisfied.

                                      Class Action Allegations

       19.        Pursuant to Fla.R.Civ.P. 1.220, the Plaintiff brings this action as a Class Action

against the Defendant, individually and on behalf of a Class consisting of all T-MOBILE

employees whose commissions on prepaid plans were charged back upon the natural expiration

and/or termination of a prepaid cellular phone plan. The class period commences according to

the appropriate statute of limitations through the date that the Court certifies this suit as a class
action.    Excluded from the Class are the Defendants, any parent, subsidiary, affiliate or

controlled person of the Defendant.

          20.   Plaintiff is a member of the Class and will fairly and adequately assert and protect

the interests of the Class. The interests of the Plaintiff are coincident with, and not antagonistic

to, those of the other members of the Class. Plaintiff has retained attorneys who are experienced

in class action litigation.

          21.   The Class is composed of at least thousands of persons, the joinder of whom is

impracticable except by means of a class action. Upon information and belief, all members of

the Class can be ascertained from the records and files of the Defendant. The disposition of their

claims in a class action will benefit both the parties and the Court.

          22.   There is a well-defined community of interest in the questions of law and fact

involving and affecting the parties to be represented.         Common questions of law or fact

predominate over any questions affecting only individual members of the Class. Common

questions include, but are not limited to, the following:

          A.    Whether Defendant breached its agreement to pay commissions to its employees
                by unduly charging them back for commissions on the prepaid plans; and

          B.    Whether Defendant unjustly enriched itself by unduly charging back to its
                employees commissions received under the prepaid plans.

          23.   The prosecution of separate actions by individual members of the Class would

create a risk of inconsistent or varying adjudications concerning individual members of the Class

which would establish incompatible standards of conduct for the party opposing the Class; and

adjudication with respect to individual members of the Class which would, as a practical matter,

be dispositive of the interests of other members not parties to the adjudication, or substantially
impair or impede the ability of other members of the Class who are not parties to the

adjudications to protect their interests.

          24.    The class action method is appropriate for the fair and efficient prosecution of this

action.

          25.    Class treatment provides manageable judicial treatment calculated to bring a rapid

conclusion to all litigation of all claims arising out of the conduct of the Defendant.

          26.    The certification of a Class would allow litigation of claims that, in view of the

expense of the litigation, may be insufficient an amount to support separate actions.

          27.    Accordingly, Plaintiff brings this action on behalf of himself and on behalf of all

other members of the Class defined as follows:

          All employees of T-Mobile who received, or were entitled to receive,
          commissions for the sale of T-Mobile prepaid cellular telephone plans who did
          not receive their commissions or were charged back by T-Mobile for their
          commissions between the commencement of the statute of limitations through the
          date that the Court certifies this suit as a class action.

                                              COUNT I

                                            UNPAID WAGES

          28.    Plaintiff realleges and adopts by reference herein paragraphs 1 through 27 above.

          29.    Plaintiff and all members of the Class were employees of the Defendant entitled

to receive commissions for the sale of prepaid cellular phone plans.

          30.    Defendant breached the agreement and otherwise has failed to properly pay wages

for commissions to the Plaintiff and all members of the Class for the sale of prepaid cellular

phone plans.

          31.    As a direct and proximate result of the breach and Defendant’s failure to properly

pay wages, the Plaintiff and all members of the Class have suffered damages.
       32.     Pursuant to Fl.Stat. §448.08, the Plaintiff and the Class are entitled to recover

their reasonable attorneys’ fees.

       WHEREFORE, Plaintiff and the Class respectfully request this Court to enter judgment

in their favor against Defendant T-MOBILE USA, INC. as follows:

       A.      Enter an Order granting class certification certifying that this lawsuit is a
               proper class action;

       B.      Award Plaintiff and the Class monetary damages;

       C.      Award prejudgment and post-judgment interest; and

       D.      Award Plaintiff’s counsel reasonable attorneys’ fees and costs incident to
               the bringing of this action, pursuant to Fl.Stat. §448.08, together with such
               other and further relief as the Court may deem necessary and proper under
               the circumstances.

                                       COUNT II

                                UNJUST ENRICHMENT

       33.     Plaintiff realleges and adopts by reference herein paragraphs 1 through 27 above.

       34.     By its wrongful acts and omissions, the Defendant was unjustly enriched at the

expense of the Plaintiff and the Class from its unjust failure to pay commissions on the prepaid

cellular phone plans, or its wrongful charge back of commissions irrevocably earned by Plaintiff

upon sale of a prepaid plan.

       35.     Plaintiff and the Class seek restitution from the Defendant and seek an order of

this Court disgorging all compensation obtained by the Defendant from such wrongful conduct.

WHEREFORE, Plaintiff and the Class respectfully request this Court to enter judgment in their

favor against Defendant T-MOBILE USA, INC. as follows:

       A.      Enter an Order granting class certification certifying that this lawsuit is a
               proper class action;

       B.      Award Plaintiff and the Class monetary damages;
      C.     Award prejudgment and post-judgment interest; and

      D.     Award Plaintiff’s counsel reasonable costs incident to the bringing of this
             action, together with such other and further relief as the Court may deem
             necessary and proper under the circumstances.

                                DEMAND FOR JURY TRIAL

      The Plaintiff demands trial by jury on all issues so triable as a matter of right.

DATED: December _____, 2005.

                                             Respectfully submitted,

                                             Bruce Botsford, Esq.
                                             Florida Bar No. 31127
                                             BOTSFORD & WHITE, LLC
                                             3595 Sheridan Street, Suite 208
                                             Hollywood, Florida 33021
                                             Telephone: (954) 374-1420

                                             Steven R. Jaffe, Esq.
                                             Florida Bar No. 390770
                                             ARONOVITZ TRIAL LAWYERS
                                             150 West Flagler Street
                                             Suite 2700, Museum Tower
                                             Miami, Florida 33130
                                             Telephone: (305) 372-2772

                                             Gary M. Farmer, Jr.
                                             Florida Bar No. 914444
                                             FREEDLAND FARMER RUSSO & SHELLER
                                             2655 Executive Park Drive, Suite 3
                                             Weston, Florida 33331
                                             Telephone: (954) 467-6400



                                             By
                                                     GARY M. FARMER, JR.
                                                     Florida Bar No. 914444

                                             COUNSEL FOR PLAINTIFFS

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:3
posted:12/19/2011
language:English
pages:8
zhaonedx zhaonedx http://
About