Gorss Motels Inc. v. Sprint Communications Company, L.P. et al

Filing 126

ORDER DENYING MOTION FOR RECONSIDERATION (Doc. # 122 ). For the reasons set forth in the attached opinion, defendant's motion for reconsideration is DENIED. It is so ordered. Signed by Judge Jeffrey A. Meyer on 3/19/2020. (Webley, A)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GORSS MOTELS INC.,
Plaintiff,
v.

No. 3:17-cv-546 (JAM)

SPRINT COMMUNICATIONS COMPANY,
L.P. et al.,
Defendants.
ORDER DENYING MOTION FOR RECONSIDERATION
Defendant Sprint Solutions, Inc. (“Sprint”) moves for reconsideration of the Court’s
ruling that denied in part Sprint’s motion for summary judgment. Doc. #117; Gorss Motels Inc.
v. Sprint Commc’ns Co., L.P., 2020 WL 818970 (D. Conn. 2020). Sprint argues that the Court
should give collateral estoppel effect to two prior decisions, Gorss Motels, Inc. v. Safemark
Systems, LP, 931 F.3d 1094 (11th Cir. 2019), and Gorss Motels, Inc. v. Otis Elevator Company,
2019 WL 4761212 (D. Conn. 2019), that rejected similar claims of plaintiff Gorss Motels Inc.
for violations of the Junk Fax Prevention Act. Doc. #123.
Motions for reconsideration are disfavored unless a party can show that the Court
overlooked facts or law in a manner that has led to a clear error or manifest injustice. A motion
for reconsideration is not an occasion for a losing party simply to re-litigate arguments or,
alternatively, to take a “second bite at the apple” with arguments that it failed to raise or properly
develop before. See generally Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52
(2d Cir. 2012); Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995).
I will deny Sprint’s motion for reconsideration for substantially the reasons stated in
Gorss’s objection. Doc. #125. First, Sprint did not adequately raise a collateral estoppel defense.
Apart from a passing reference to the issue in a reply brief in support of its notice of

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supplemental authority as to the Eleventh Circuit’s Safemark decision (Doc. #101 at 4-5), Sprint
failed to properly raise collateral estoppel as a separate ground for the Court to grant summary
judgment. Sprint anemically argued that the Safemark decision was merely “supplemental
authority” (Doc. #96 at 2) and “persuasive authority” (Doc. #101 at 1 and 4; Doc. #109 at 2), not
that the Safemark decision should be given binding effect by means of the doctrine of collateral
estoppel.
Sprint did not even raise the collateral estoppel issue when it first filed its notice of
supplemental authority with the Safemark decision, but instead waited to the tail end of its reply
brief after Gorss filed a response to Sprint’s notice. Although courts have leeway to consider a
collateral estoppel argument that is raised for the first time in a reply brief, see Curry v. City of
Syracuse, 316 F.3d 324, 331 (2d Cir. 2003), the general rule is that “[a]rguments may not be
made for the first time in a reply brief.” Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir. 1993). As
for the Otis Elevator decision, Sprint filed a notice of supplemental authority (Doc. #106), but
never argued at all that the Otis Elevator decision should be given collateral estoppel effect.
Second, Sprint has conceded that it was not a Wyndham “affiliate.” See Gorss, 2020 WL
818970, at *3. This “affiliate” status of the defendant was highly significant to both the decisions
in Safemark and in Otis Elevator. See Safemark, 931 F.3d at 1100 (“By agreeing that Wyndham
affiliates could offer assistance with purchasing items for the hotels and by providing their fax
numbers, the hotels gave express permission to receive fax advertisements from affiliates,
including Safemark.”); Otis Elevator, 2019 WL 4761212, at *12 (noting that Gorss “agreed to
receive information from its franchisor’s affiliates and approved vendors” and that
“[s]ignificantly, Otis Elevator Company is one of these affiliates and approved vendors”).

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“When the facts essential to a judgment are distinct in the two cases, the issues in the
second case cannot properly be said to be identical to those in the first, and collateral estoppel is
inapplicable.” Envtl. Def. v. U.S. E.P.A., 369 F.3d 193, 202 (2d Cir. 2004). Sprint’s concession
that it is not a Wyndham affiliate distinguishes the issue before me from the issue before the
Safemark and Otis Elevator courts.
Third, even if I were to assume that any other court’s interpretation of the 2014 Franchise
Agreement should be given collateral estoppel effect, Sprint offers no coherent reason how such
an interpretation could apply to the seven of the nine faxes at issue in this case that were
transmitted prior to the 2014 Franchise Agreement. Sprint’s reliance on the 1988 Franchise
Agreement is nonsensical because that agreement does not have the same language from
Paragraph 4.4 of the 2014 Franchise Agreement that was relied on as the grounds for decision by
the Safemark and Otis Elevator courts.
Lastly, when evaluating a motion for reconsideration, a court should consider whether
adhering to its prior ruling would amount to a serious injustice. I am not convinced that there is
any injustice at all, especially in light of the Seventh Circuit’s recent intervening ruling in
Physicians Healthsource, Inc. v. A-S Medication Sols., LLC, 950 F.3d 959 (7th Cir. 2020), which
clarifies the standard governing whether a consumer has given “prior express invitation or
permission” as provided under the Junk Fax Prevention Act, 47 U.S.C. § 227(a)(5). In contrast to
the Eleventh Circuit’s mistaken interpretation of this standard in Safemark, the Seventh Circuit
ruled that “the consumer must affirmatively and explicitly give the advertiser permission to send
it fax advertisements on an ongoing basis.” Id. at 966. Moreover, “a recipient must specifically
acknowledge that faxed advertisements will follow its consent to constitute prior express
permission,” and “[a] consumer’s statement that it gave permission to send ‘product information’

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via fax, even on an ongoing basis, after purchasing products or services from a company cannot
as a matter of law constitute prior express permission” to receive fax advertisements. Id. at 967.
The facts in this case come nowhere near to meeting this standard. The Seventh Circuit’s
ruling reinforces my conclusion that—at a minimum—a genuine fact issue remains whether
Gorss gave “prior express invitation or permission” to receive Sprint’s advertising faxes.
CONCLUSION
For the reasons set forth in this ruling, the Court DENIES the motion for reconsideration.
It is so ordered.
Dated at New Haven, Connecticut this 19th day of March 2020.
/s/Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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