IN THE CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
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GARRISON AND SUMRALL, P.C. Plaintiff, v. ACTIVE VOICE CORPORATION; Defendants. |
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CASE NO. ___________ |
COMPLAINT
Plaintiff Garrison and Sumrall, P.C. files its Complaint, individually and as class representative, against the named Defendant and Fictitious Defendants A, B, C & D as follows:
INTRODUCTION
1. This is an Alabama statewide class action against the named Defendant for compensatory damages, declaratory and injunctive relief only.
2. The claims in this action are founded exclusively upon the statutory law and the common law of the State of Alabama.
3. Plaintiff does not claim punitive damages under any claim, cause of action or theory of recovery alleged herein. This is a common fund case; Plaintiff is not entitled to and does not seek an add-on attorney’s fee in addition to the recovery obtained on behalf of the class.
CLASS ACTION ALLEGATIONS
4. Plaintiff does not seek punitive damages. There are no federal claims asserted herein, and no right of recovery by the named Plaintiff or any member of the Plaintiff Class depends on application or interpretation of any federal statute. Plaintiff does not assert a claim under or seek relief allowed by or pursuant to any federal statute or cause of action. The total aggregate amount of damages sought in this action under all counts is less than $74,000 per class member.
5. Certification under Rule 23(b) Ala.R.Civ.P., is proper.
6. Plaintiff seeks certification of an Alabama statewide class action against the named Defendant for the wrongful conduct alleged in this Complaint. The Plaintiff Class consists of the following:
All individuals, businesses, corporations or other entities in the State of Alabama that purchased or leased Active Voice Replay, Replay Plus or Repartee products released prior to Repartee Version 7.44, provided that:
a. The person or entity described herein does not file before final judgment any bankruptcy proceeding;
b. The person or entity does not have pending against a named Defendant on the date of the court’s certification order any individual action wherein the recovery sought is based in whole or in part on the type of claims asserted herein;
c. Persons or entities are excluded from the class who have previously obtained a judgment or settled any claims against the Defendant concerning the type claim asserted herein or have previously executed a release, releasing any such claims against the Defendant;
d. The person or entity is not the party to an arbitration agreement with any named Defendant that would apply to the transactions made the basis of this lawsuit.
e. The person or entity is not currently serving as a judge or justice of any court within the State of Alabama.
7. The Rule 23(a) and Rule 23(b) requirements are met because:
a. The class is so numerous that joinder of all members in this action is impracticable. Plaintiff is not aware of the precise number of class members at this time but believes that they number in the hundreds or more. The names and addresses of members of the class can be ascertained from Defendant’s books and records.
b. There are questions of law or fact common to the class, including but not exclusively limited to:
i. whether the defendant’s products are defective in that they are incapable of handling transactions involving dates beyond December 31, 1999;
ii. whether the defendant knew or should have known of the defect at the time it sold the products;
iii. whether the defendant should be required to make the system Year 2000 compliant, free of charge;
iii. whether the plaintiff is entitled to the class-wide relief sought in the Complaint;.
iv. whether defendant’s actions constitute a breach of the covenant of good faith and fair dealing;
v. whether, due to the Year 2000 defects, Active Voice products are not fit for the ordinary purpose for which such goods are used.
c. The common questions predominate over any questions affecting only individual members.
d. The prosecution of separate actions by individual members of a class would create a risk of inconsistent adjudications with respect to individual members of the Plaintiff Class.
e. The prosecution of separate actions by individual members of the Plaintiff Class would create a risk of adjudication with respect to individual members which could as a practical matter, be dispositive of the interest of the other members not parties to the adjudication or substantially impair or impede their ability to protect their interest.
f. The named Plaintiff is an adequate representative of the class. The claims of the Plaintiff Class representative are typical of those of the class members in that as a result of the Defendant’s unlawful conduct the Plaintiff suffered the same type harm as suffered by other members of the class. The class representative will vigorously pursue the claims on behalf of the class and will fairly and adequately protect the interests of the class. Plaintiff’s counsel are experienced and professionally able to properly represent the Plaintiff Class.
g. The claims of the representative party are typical of the claims of each member of the class and are based on or arise out of similar facts constituting the wrongful conduct of the Defendant.
h. A class action is far superior to any other available method, if there is
any, for the fair and efficient adjudication of this controversy.
STATEMENT OF THE PARTIES
8. Garrison and Sumrall, P.C. is an Alabama professional corporation with its principal place of business in Jefferson County, Alabama.
9. Defendant Active Voice Corporation (hereinafter referred to as "Active Voice") is a Washington corporation with its principal place of business located 2901 Third Avenue, Suite 500, Seattle, Washington, doing business by agent in Montgomery County, Alabama.
10. Fictitious Defendants "A", "B", "C", & "D", whether singular or plural, are those other persons, firms, corporations or other entities whose wrongful conduct caused or contributed to cause the injuries and damages to the Plaintiff, all of whose true and correct names are unknown to the Plaintiff at this time but will be substituted by amendment when ascertained.
STATEMENT OF THE FACTS
11. On or around June 28, 1995, Plaintiff purchased the Active Voice Replay system manufactured by Defendant Active Voice.
12. Plaintiff currently owns and uses the Active Voice Replay system as its primary voice mail system.
13. Active Voice products released prior to Repartee Version 7.44 are not Year 2000 compliant. This is a substantial and material defect in the products Active Voice has sold to numerous Alabama businesses and entities.
14. Unlike certain other companies which are providing free corrections to their customers for Year 2000 defects, Active Voice is improperly requiring customers who own defective Active Voice products to purchase new products, upgrades or patches in order to remedy the latent Year 2000 defect.
15. As a result, Alabama businesses and entities that purchased defective Active Voice products have no choice but to pay substantial upgrade fees as well as related expenses in order to remedy the latent Year 2000 defect.
16. Plaintiff and each member of the class must obtain an adequate replacement for the Active Voice products as soon as possible in order to insure a reliable date and software transition before the Year 2000.
17. In or about February, 1998 Active Voice announced the release of Active Voice Repartee Version 7.44. According to Active Voice, Repartee Version 7.44 is a fully Year 2000 compliant product.
18. All other versions of Active Voice's products produced prior to Repartee Version 7.44 are materially defective and do not function properly with regard to the processing of dates after December 31, 1999.
19. Noncompliant systems will not function properly and may result in messages being lost. Defendant Active Voice knew or should have known of the Year 2000 defects in the Active Voice products at the time it sold products to the plaintiff class, and knowingly or recklessly failed to disclose that the Active Voice products contained Year 2000 defects.
20. Plaintiff received a letter from Business Telephons Systems, Inc. dated May 21, 1998, stating that "the manufacturer of your voice mail system has just announced to us that your Replay system is not year 2000 compatible."
21. The May 21, 1998 letter stated that the cost for an upgrade to be compliant ranged from $4,150 to $6,155, depending on the time the order is placed .
22. Plaintiff’s system will fail to operate properly if the defect is not corrected.
23. Defendant has refused to fix the Year 2000 problem in the Active Voice products free of charge to Plaintiff and Plaintiff Class members.
COUNT ONE
(Declaratory Judgment)
24. Plaintiff realleges all prior paragraphs of the Complaint as if set out here in full.
25. Plaintiff and Plaintiff Class members ask the court to enter a declaratory judgment determining the rights of the Plaintiff and Plaintiff Class members in regard to the Active Voice products that are not year 2000 compatible. Specifically, the Plaintiff and Plaintiff Class members pray for declaratory judgment that the Defendant has a duty to remedy the defects in the products by providing the necessary upgrade free of charge.
COUNT TWO
(Injunction)
26. Plaintiff realleges all prior paragraphs of the Complaint as if set out here in full.
27. Plaintiff and Plaintiff Class seek an injunction requiring Defendant provide the Plaintiff and Plaintiff Class members, free of charge, with an update and/or upgrade necessary to keep Active Voice products in good working order.
COUNT THREE
(Restitution)
28. Plaintiff realleges all prior paragraphs of the Complaint as if set out here in full.
29. Upon information and belief, Defendant has charged and received money from Plaintiff Class members for updates and/or upgrades that should have been provided free of charge.
30. Plaintiff seeks an order from the Court requiring full restitution to members of the Plaintiff Class of all amounts improperly collected with interest for the period of time those funds were held by Defendant.
COUNTY FOUR
(Breach of Warranty)
31. Plaintiff realleges all prior paragraphs of the Complaint as if set out here in full.
32. When Defendant placed the defective Active Voice products into the stream of commerce, Defendant knew of the intended use of the product and impliedly warranted that the Active Voice products were of good and merchantable quality and not defective or unfit for the ordinary purposes for which they are used.
33. Defendant breached implied warranties to the plaintiff class because the Active Voice products were not of merchantable quality and were defective when sold and that they are unfit for their principal purposes, namely, processing information involving dates beyond December 31, 1999.
34. The plaintiff class members were foreseeable and intended users of the Active Voice products sold by Defendant.
35. The conduct of the defendant constitutes a breach of the implied warranty of merchantability and fitness for a particular purpose. As a direct and proximate result of the defendant's breach of the implied warranty of merchantability and fitness for a particular purpose, the defendant is liable to the plaintiff class in an amount to be determined by a jury.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, on behalf of itself and on behalf of the members of the Class, prays for judgment and relief as follows:
1. An order certifying that the action may be maintained as a class action;
2. Compensatory damages on behalf of each class member;
3. A judgment declaring that the Defendant, under the contract, must provide Plaintiff and Plaintiff Class service, updates and/or upgrades free of charge, necessary to maintain the Active Voice products in good working beyond the year 2000;
4. An order requiring Defendant to provide Plaintiff and Plaintiff Class service, updates and/or upgrades free of charge, necessary to maintain the Active Voice products in good working order beyond the year 2000;
5. Pre- and post-judgment interest; and
6. Such other relief as the Court may deem necessary or appropriate.
_______________________________
JERE L. BEASLEY (BEA020)
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THOMAS J. METHVIN (MET003)
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ANDY D. BIRCHFIELD, JR. (BIR006)
Attorneys for Plaintiffs
OF COUNSEL:
BEASLEY, ALLEN, CROW
METHVIN, PORTIS & MILES, P.C.
P. O. Box 4160
Montgomery, AL 36104
(334) 269-2343
JURY DEMAND
PLAINTIFF HEREBY DEMANDS TRIAL BY JURY ON ALL ISSUES OF THIS
CAUSE.
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OF COUNSEL