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Woodbury, Minnesota 55125-6551

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Telco Group, Inc. v. Ameritrade, Inc.: CIVIL PROCEDURE - no live controversy regarding class certification after dismissal on merits of appellant's claims

1The HONORABLE JOSEPH F. BATAILLON, Chief Judge of United States
District Court for the District of Nebraska.
United States Court of Appeals
No. 08-1621
Telco Group, Inc., individually and *
on behalf of all persons similarly *
situated, *
Plaintiff - Appellant, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
Ameritrade, Inc., et al., * [TO BE PUBLISHED]
Defendants - Appellees. *
Submitted: January 15, 2009
Filed: January 26, 2009
Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
Telco Group, Inc., appeals the district courts1 final order dismissing Telcos
claims with prejudice for failure to prosecute. However, Telco does not challenge this
order on the merits, for example, by arguing that the district court abused its discretion
under Rule 41(b) of the Federal Rules of Civil Procedure in dismissing Telcos claims
with prejudice. See Rodgers v. Curators of Univ. of Mo.,135 F.3d 1216, 1219 (8th
Cir. 1998) (standard of review). Accordingly, the final order of dismissal is affirmed.
See F.R.A.P. 28(a)(5), (9); Harris v. Folk Const. Co., 138 F.3d 365, 366 n.1 (8th Cir.
Telco does challenge the district courts earlier order denying Telcos motion
for class certification. However, because its claims have been dismissed with
prejudice, reversing the denial of class certification would afford Telco no relief.
Moreover, as its claims have been dismissed, Telco is no longer a member of and
therefore cannot represent the putative but uncertified class. See In re Milk Prods.
Antitrust Lit., 195 F.3d 430, 436 (8th Cir.), cert denied, 529 U.S. 1038 (2000).
Without a class representative, the putative class cannot be certified. Great Rivers
Co-op v. Farmland Ind., Inc., 120 F.3d 893, 899 (8th Cir. 1987).
It is well settled that there must be a live controversy at the time this Court
reviews the case. Sosna v. Iowa, 419 U.S. 393, 402 (1975). In these circumstances,
it is appropriate to affirm the dismissal and . . . not reach the class certification
issue. Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1257 (8th Cir. 1997).
The judgment of the district court is affirmed.


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