            Case: 11-13737   Date Filed: 11/06/2012   Page: 1 of 6

                                                      [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 11-13737
                       ________________________

        D.C. Docket Nos. 8:10-cv-02360-VMC ; 8:90-bk-10016-PMG


In Re: THE CELOTEX CORPORATION,
       CAREY CANADA INC.,

                                                                     Debtor.
________________________________

SOUTHERN WESLEYAN UNIVERSITY,
individually and as the representative
for the certified college class,

                                                      Plaintiff–Appellant,

                                   versus

ASBESTOS SETTLEMENT TRUST,
FRANK ANDREWS,
SHARON M. MEADOWS,
JAMES W. STEVENS,

                                                      Defendants–Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________
                           (November 6, 2012)
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Before BARKETT and JORDAN, Circuit Judges, and HALL, * District Judge.

PER CURIAM:

       This appeal arises out of a bankruptcy court proceeding involving the

Asbestos Settlement Trust (“Trust”), which was created in bankruptcy court in

1996 to pay asbestos mass tort claims for both bodily injury and property damage

against Celotex Corporation and Carey Canada, Inc. Several educational

institutions, including Michigan State University, Prince George’s College,

Rochester Institute of Technology, The University of Cincinnati, Fairfield

University, and Claremont McKenna College (collectively, the “Colleges”) filed

property damage claims against the Trust. The claims of the Colleges were denied

by the Trust on the grounds that they did not satisfy the legal prerequisites for

payment. The Colleges objected and the Trust sought the bankruptcy court’s

review, filing for declaratory relief in an adversary proceeding. Several years later

and based on this Court’s decision in a related proceeding, Asbestos Settlement

Trust v. City of New York (In re Celotex Corp.), 487 F.3d 1320 (11th Cir 2007),

the Trust reversed course and agreed to pay the Colleges under a formula approved

of in In re Celotex Corp.




* Honorable James Randal Hall, United States District Judge for the Southern District of
Georgia, sitting by designation.

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       Having paid the Colleges, the Trust moved to dismiss the declaratory relief

adversary proceeding. The Colleges, however, objected to the dismissal on two

grounds: (1) that the property damage payments were insufficient because they did

not include interest at the federal judgment rate and (2) that the Colleges’ claim

that the Trust breached its fiduciary duty when it initially failed to pay the property

damage claims had not been resolved. The bankruptcy court held that the plan

governing the Trust did not provide for interest and dismissed the declaratory

judgment adversary proceeding,1 but without prejudice to the Colleges’ right to

pursue additional claims in a new bankruptcy court proceeding.

       The Colleges then sought leave from the bankruptcy court to bring a lawsuit

against the Trust in a forum that would provide for a jury trial for any and all

claims they may have related to the Trust’s alleged wrongful failure to pay their

property damage claims. The bankruptcy court concluded that the Colleges could

bring such claims but only in the bankruptcy court.2




1
  The Colleges appealed the bankruptcy court’s ruling on the interest rate payment claim, which
the district court, see Claremont McKenna College v. Asbestos Settlement Trust (In re Celotex
Corp.), No. 08–2343 (M.D.Fla. March 18, 2009), and this Court, see Claremont McKenna
College v. Asbestos Settlement Trust (In re Celotex Corp.), 613 F.3d 1318 (11th Cir. 2010), both
affirmed.
2
  The Colleges appealed that decision to the district court, which concluded that the bankruptcy
court’s jurisdictional order was a non-final interlocutory order, which the district court declined
to review pursuant to 28 U.S.C. § 158(a). The Colleges appealed the district court’s decision to
this Court, which we have addressed in our opinion in the separate appeal in Michigan State
University, et al v. Asbestos Settlement Trust, No. 10-13641.
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       Subsequently, another educational institution, Southern Wesleyan University

(“SWU”), acting as the representative of the thirty-six members of the “National

Universities Class Action,” 3 instituted an adversary proceeding in bankruptcy

court, alleging a single claim for breach of fiduciary duty against the Trust by those

members of the Class who have disputed property damage claims. The Trust

sought dismissal of the Amended Complaint, arguing that SWU lacked standing to

bring this action both because (1) SWU’s purported status as the class

representative of several colleges and universities in a 1992 federal class action

against Celotex and other asbestos manufacturers did not provide SWU with

standing in this bankruptcy court proceeding and (2) SWU failed to allege that it

was a property damage claimant to whom the Trust owed a fiduciary duty.

       The bankruptcy court dismissed SWU’s Amended Complaint concluding

that whether SWU was the class representative in the 1992 federal litigation, SWU

had not been recognized in the bankruptcy court as the “class representative” of the

National Universities Class Action, particularly regarding the filing of the class

property damage claim of the National Universities Class Action. Additionally,

the bankruptcy court concluded that SWU lacked standing to represent those

members of the Class which have disputed property damage claims because SWU

did not allege, nor produce any evidence, that it holds a disputed property damage

3
 The Colleges, along with SWU and numerous other colleges and universities, are listed on the
Complaint and Amended Complaint in this adversary proceeding.
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claim. The district court, sitting in review of the bankruptcy court, affirmed on the

same grounds. SWU now seeks this Court’s review of the bankruptcy court’s

order.

         On appeal, SWU concedes that its conditional certification as class

representative in the1992 national class action does not confer standing here, but

argues that the bankruptcy court previously recognized it as the class representative

of these colleges and universities for this bankruptcy proceeding. We, however,

agree with the bankruptcy court’s and district court’s conclusion that, whether

SWU has previously been acknowledged as the class representative of the

“National Universities Class Action” in this bankruptcy proceeding does not

necessarily mean that it can act as the class representative in this particular

adversary proceeding, which asserts that the Trust violated a fiduciary duty to the

six colleges that had disputed property damage claims. Instead, whether SWU

could represent the class of colleges who have disputed property damage claims,

SWU must allege that it meets the requirements for class certification, including

the requirement that “the claims or defenses of the representative parties are typical

of the claims or defenses of the class.” See Fed. R. Civ. P. 23(a)(3). See also Fed.

R. Bankr. P. 7023 (requiring the application of Fed. R. Civ. P. 23 to adversary

proceedings in bankruptcy).




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       Here, SWU did not allege in its Amended Complaint nor did it produce any

evidence in response to the Trust’s challenge to SWU’s standing, that it had a

disputed property damage claim. Thus, we see no error in the bankruptcy court’s

conclusion that SWU “does not possess the same interest as members of the

National Universities Class Action with Disputed PD Claims, and cannot represent

the class members in this breach of trust action.” 4

       Accordingly, the bankruptcy court’s order dismissing SWU’s First Amended

and Restated Complaint is AFFIRMED. 5




4
  Unrelated to its arguments on its Article III standing, SWU separately argues that the
bankruptcy court did not have subject matter jurisdiction over this adversary proceeding.
Essentially, SWU is challenging the bankruptcy court’s order that it has exclusive jurisdiction
over the Colleges’ breach of fiduciary duty claims against the Trust, which order the bankruptcy
court issued in response to the Colleges’ motion for leave to pursue such claims in a non-
bankruptcy court forum. See supra n.2. We, however, need not address this argument because
of SWU’s lack of standing.
5
  Although the bankruptcy court’s dismissal was without prejudice to SWU’s filing of a second
amended complaint, SWU chose instead to appeal the bankruptcy court’s dismissal. SWU’s
decision to appeal resulted in a waiver of SWU’s right to file another complaint. See Schurrman
v. Motor Vessel Betty K V, 798 F.2d 442, 445 (11th Cir. 1986).
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