Richards v. Direct Energy Services, LLC
Filing
77
ORDER denying 64 MOTION for Partial Reconsideration or, in the Alternative, Leave to File Interlocutory Appeal regarding 63 Motion to Dismiss Ruling. Signed by Judge Victor A. Bolden on 11/20/2015. (Dearing, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GARY W. RICHARDS,
Plaintiff,
v.
CASE NO. 3:14-cv-1724 (VAB)
DIRECT ENERGY SERVICES, LLC,
Defendant.
RULING ON PLAINTIFF’S MOTION FOR PARTIAL RECONSIDERATION,
OR IN THE ALTERNATIVE, FOR INTERLOCUTORY APPEAL
A Connecticut resident, Gary W. Richards, filed a putative class action against
Defendant, Direct Energy Services, LLC (“DES”), asserting claims that arise out of
DES’s business of supplying electricity to residential customers. Compl. ¶¶ 2-3, 8, ECF
No. 1. Mr. Richards alleged that DES engaged in unfair trade practices, in violation of
the state unfair trade practices laws of Connecticut, the Connecticut Unfair Trade
Practices Act (“CUTPA”), Conn. Gen. Stat. §42-110a et seq., and Massachusetts,
Massachusetts Regulation of Business Practices for Consumers’ Protection Act, Mass.
Gen. Laws Ann. ch. 93A, §1, et seq. Compl. ¶54, ECF No. 1. He also made claims of
unjust enrichment and breach of the covenant of good faith and fair dealing. Compl. ¶¶
57-63, 65-70. A class has not been certified in this case.
On August 4, 2015, the Court granted DES’s Motion to Dismiss in part,
dismissing all of Mr. Richards’s claims under Massachusetts law and his claim of unjust
enrichment. Ruling on Def.’s Mot. To Dismiss, ECF No. 63. In doing so, the Court
reasoned that as a Connecticut-based consumer Mr. Richards lacked standing to pursue
claims under Massachusetts law, despite the fact that he intends to seek certification of a
class that includes Massachusetts consumers. Id. at 6-11. Mr. Richards now asks the
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Court to reconsider this aspect of its Ruling. Mot. for Partial Reconsideration, ECF No.
64. In the alternative, he seeks permission to file an interlocutory appeal. Id. For the
reasons that follow, the motion is DENIED.
I.
Motion for Partial Reconsideration
Motions for reconsideration are governed by Federal Rule of Civil Procedure
59(e), allowing the alteration of a judgment, and Connecticut Local Rule 7(c). The
standard for granting such a motion is “strict.” Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995) (citations omitted). “The only permissible grounds on which to
grant a motion for reconsideration are: (1) an intervening change in the law; (2) the
availability of new evidence not previously available; or (3) the need to correct a clear
error of law or prevent manifest injustice.” Martin v. Dupont Flooring Sys., Inc., No.
Civ.A. 301CV2189(SRU), 2004 WL 1171208, at *1 (D. Conn. May 25, 2004) (citing
Doe v. New York City Dep’t of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983), cert. denied
sub nom. Catholic Home Bureau v. Doe, 464 U.S. 864, 104 (1983)). A motion to
reconsider “will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked—matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court.” Shrader, 70 F.3d at
257.
Mr. Richards argues that the Court erred in ruling that he lacked standing to
pursue claims under Massachusetts law as the representative of a purported class that was
to include consumers in Massachusetts. He argues that this Court’s decision contradicts a
“growing” legal trend or consensus that questions of Article III standing should be
deferred until the class certification stage. Mot. for Partial Reconsideration 4-5, ECF No.
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64. He also contends that the Court misconstrued the basis for its Ruling as one of
standing, when in fact, it is a choice of law issue. Id. at 3-4.
None of these arguments justify granting Mr. Richards’s motion. The vast
majority of cases Mr. Richards cites to support his position are not controlling on this
Court. Mot. for Partial Reconsideration 3, 5-7 & nn.4, 5, ECF No. 64 (citing district
court cases and Morrison v. YTB Intern., Inc., 649 F.3d 533, 536 (7th Cir. 2011)1 and
Sullivan v. DB Invs., Inc., 667 F.3d 273, 302 (3d Cir. 2011)); see also Shrader, 70 F.3d at
257 (noting that typically, motions to reconsider will not be granted absent controlling
authority that the Court overlooked). Moreover, the Court explicitly considered the
binding authority he cites, namely Mahon v. Ticor Title Insurance Company, 683 F.3d 59
(2d Cir. 2012).
In considering Mahon, the Court opined on the understanding of the law that Mr.
Richards reiterates in the instant motion. To find error in this Court’s Motion to Dismiss
Ruling, the Court must agree with Mr. Richards’s conclusion that “in the class action
context, the more logical approach to standing is simply to wait until the class
certification stage of the case.” Mot. for Partial Reconsideration 4, ECF No. 64 (citing
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997); Ortiz v. Fibreboard Corp., 527
U.S. 815 (1999)). However, the Second Circuit expressly considered and rejected Mr.
Richards’s interpretation of these cases in Mahon. Mahon, 683 F.3d at 63-65; accord In
re Aggrenox Antitrust Litig., 94 F. Supp. 3d 224, 250-51 (D. Conn. 2015) (“The
[plaintiffs] point to numerous cases that have interpreted Ortiz [ ] and Amchem [ ] to
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The Court notes that there appears to be a Circuit split between the Seventh and Second Circuit on the
issue of whether class certification should be decided before standing. See 6803 Boulevard East, LLC v.
DIRECTV, LLC, 17 F. Supp. 3d 427, 431-32 (D.N.J. 2014) (describing the different approaches taken by
the Second and Seventh Circuits).
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stand for the proposition that the question of Article III standing can be deferred until
after class certification. In Mahon, however, the Second Circuit repudiated that
interpretation of those cases…”). The only case that Mr. Richards cites in favor of his
position that was decided after Mahon does not cite it or address its application to the
issue of class representative standing. See In re DDAVP Indirect Purchaser Antitrust
Litig., 903 F. Supp. 2d 198 (S.D.N.Y. 2012).
His argument that the Court misconstrued a choice of law issue as one of standing
is also unavailing. Engaging in a choice of law analysis at the motion to dismiss stage
would have been premature. See N. Am. Tech. Servs., Inc. v. V.J. Techs., Inc., Civil
Action No. 10 CV 1384(AWT), 2011 WL 4538069, at *2 (D. Conn. Sept. 29, 2011)
(“‘[C]onducting a… choice of law analysis is fact-intensive and context specific. Due to
the complexity of this analysis when confronted with a choice of law issue at the motion
to dismiss stage, courts… have concluded that it is more appropriate to address the issue
at a later stage in the proceedings.’”) (quoting Graboff v. Collern Firm, No. 10-1710,
2010 WL 4456923, at *8 (E.D. Pa. Nov. 8, 2010) and collecting cases).
Contrary to Mr. Richards’s contention in his motion, he did have an opportunity
to brief the standing issue in opposing DES’s Motion to Dismiss. Opp. Br. 21-23, ECF
No. 24. Moreover, as the Court noted in its ruling, “[b]ecause standing issues go to the
Court’s subject matter jurisdiction, they can and should be raised sua sponte” and “must
be decided before any other legal issue.” Ruling on Def.’s Mot. To Dismiss at 7, ECF
No. 63 (citing Cent. States Southeast and Southwest Areas Health and Welfare Fund v.
Merck-Medco Managed Care, LLC, 433 F.3d 181, 198 (2d Cir. 2005) and Steel Co v.
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Citizens for a Better Env’t, 523 U.S. 83, 93-94 (1998)). Thus, it was appropriate for the
Court to address standing when it did.
Finally, the Court dismissed Mr. Richards’s Massachusetts law claims without
prejudice, providing him with an opportunity to amend the Complaint to add a named
plaintiff who had suffered injury in Massachusetts. He was provided additional time to
amend his complaint and did not do so. See Minute Entry, ECF No. 68.
Accordingly, for all of these reasons, Mr. Richards’s request for the Court to
reconsider its Ruling on DES’s Motion to Dismiss is DENIED.
II.
Request for Interlocutory Appeal
Mr. Richards, in the alternative, asks this Court to allow him to file an
interlocutory appeal on this standing issue. Federal appellate jurisdiction generally
depends upon the entry of a final judgment. Coopers & Lybrand v. Livesay, 437 U.S.
463, 467 (1978) (citation omitted). “Interlocutory appeals are disfavored, and, because
the procedure ‘was not intended as a vehicle to provide early review of difficult rulings in
hard cases,’ a party seeking to appeal must demonstrate exceptional circumstances
justifying it.” Kuzinski v. Schering Corp., 614 F. Supp. 2d 247, 249 (D. Conn. 2009)
(quoting Williston v. Eggleston, 410 F. Supp. 2d 274, 276 (S.D.N.Y. 2006)).
A district judge may certify the interlocutory appeal of an order if he or she is “of
the opinion that such order [1] involves a controlling question of law [2] as to which there
is substantial ground for difference of opinion and [3] that an immediate appeal from the
order may materially advance the ultimate termination of the litigation.” 28 U.S.C. §
1292(b). The standard for allowing a party to seek an interlocutory appeal is
“demanding,” and such an appeal is permitted at the district court’s discretion. Banque
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Nordeuroque S.A. v. Banker, 970 F.2d 1129, 1131 (2d Cir. 1992); In re Roman Catholic
Diocese of Albany, New York, Inc., 745 F.3d 30, 36 (2d Cir. 2014); see also Kuzinski, 614
F. Supp. 2d at 249.
Mr. Richards’s motion fails because, for the same reasons discussed with respect
to his request for reconsideration, there is not “substantial ground for a difference of
opinion.” To meet this element, Mr. Richards must show that “(1) there is conflicting
authority on an issue or (2) the case is particularly difficult and of first impression within
this Circuit.” United States ex rel. Drake v. NSI, Inc., 736 F. Supp. 2d 489, 503 (D.
Conn. 2010) (citing Consub Del. LLC v. Schahin Engenharia Limitada, 476 F. Supp. 2d
305, 309 (S.D.N.Y. 2007), aff’d 543 F.3d 104 (2d Cir. 2008), abrogated in part on other
grounds by Shipping Corp. of India, Ltd. v. Jaldhi Overseas Pte Ltds., 585 F.3d 58 (2d
Cir. 2009)). His belief that the Court’s decision is incorrect as a matter law cannot alone
justify an interlocutory appeal. See Estate of Metzermacher ex rel. Metzermacher v. Nat’l
R.R. Passenger Corp., 487 F. Supp. 2d 24, 29 (D. Conn. 2007) (“A ‘substantial ground
for difference of opinion’ cannot be grounded merely in a claim that the Court’s decision
was wrong.”) (citation omitted).
Moreover, the Court also believes that allowing an interlocutory appeal on this
issue would not advance materially the ultimate termination of this litigation. Even if the
Second Circuit overruled this Court’s standing determination, Mr. Richards’s Complaint
does not contain sufficient factual allegations about DES’s conduct in Massachusetts to
state claims under Massachusetts law under Federal Rule of Civil Procedure 12(b)(6).
Thus, a reversal would not change the course of the litigation or the claims involved. See
Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865-66 (2d Cir. 1996) (“The use of
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§1292(b) is reserved for those cases where an intermediate appeal may avoid protracted
litigation.”) (citation omitted).
Accordingly, Mr. Richards’s request for permission to file an interlocutory appeal
is DENIED.
III.
Conclusion
For all of the foregoing reasons, Mr. Richards’s Motion for Partial
Reconsideration, or in the Alternative, Leave to File an Interlocutory Appeal, ECF No.
64, is DENIED.
SO ORDERED this 20th day of November 2015 at Bridgeport, Connecticut.
/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge
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