OUTZEN et al v. KAPSCH TRAFFICCOM USA, INC. et al

Filing 340

ORDER ON PLAINTIFFS' MOTION FOR RECONSIDERATION, MOTION TO SUPPLEMENT EVIDENCE, AND MOTION FOR ORAL ARGUMENT - The Plaintiffs' Motion for Reconsideration (Filing No. 189 ) is DENIED. The Plaintiffs' claims will not proceed on a class- wide basis. The Plaintiffs' Motion for Oral Argument (Filing No. 203 ) also is DENIED. The Plaintiffs' Motion to Supplement Evidence (Filing No. 303 ) is GRANTED, and the Court considered that filing and its response and reply when considering the Motion for Reconsideration. (See Order). Signed by Judge Tanya Walton Pratt on 9/15/2022. (AKH)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MONIQUE OUTZEN, ROBERT ARDAIOLO,
and MELISSA BARKER,
Plaintiffs,
v.
KAPSCH TRAFFICCOM USA, INC.,
Defendant.

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Case No. 1:20-cv-01286-TWP-MJD

ORDER ON PLAINTIFFS' MOTION FOR RECONSIDERATION,
MOTION TO SUPPLEMENT EVIDENCE, AND MOTION FOR ORAL ARGUMENT
This matter is before the Court on a Motion to Reconsider Entry on Amended Motion for
Class Certification and Alternative Motion to Amend Proposed Class Definitions ("Motion for
Reconsideration") (Filing No. 189), filed by Plaintiffs Monique Outzen, Robert Ardaiolo, and
Melissa Barker (collectively, "Plaintiffs"). The Plaintiffs have also filed a Motion for Hearing on
Plaintiffs' Motion to Reconsider ("Motion for Oral Argument") (Filing No. 203), and a Motion for
Leave to Supplement Designation of Evidence in Support of Plaintiffs' Motion to Reconsider
("Motion to Supplement Evidence") (Filing No. 303). For the reasons stated below, the Court
grants the Plaintiffs' Motion to Supplement Evidence but denies their Motion for Reconsideration
and Motion for Oral Argument.
I.

BACKGROUND

The Plaintiffs initiated this action against Defendants Kapsch Trafficcom USA, Inc.
("Kapsch") and Gila, LLC ("Gila") (collectively, "Defendants"), asserting putative class action
allegations that Defendants unlawfully issued administrative fees and/or penalties to drivers
crossing the RiverLink toll bridges that connect Indiana and Kentucky. Central to the case is

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whether Defendants issued subsequent notices to drivers without first providing the statutorilyrequired First Notice of Toll or whether they provided late notice. The case initially was brought
as two separate actions—Melissa Barker v. Kapsch Trafficcom USA, Inc. and Gila, LLC, Case
Number 1:19-cv-00987-TWP-MJD, and Monique Outzen and Robert Ardaiolo v. Kapsch
Trafficcom USA, Inc. and Gila, LLC, Case Number 1:20-cv-01286-TWP-MJD—but was later
consolidated as one action under Case Number 1:20-cv-01286-TWP-MJD on July 29, 2020 (Filing
No. 44).
In their Complaint, the Plaintiff's assert claims for unjust enrichment (Count I), money had
and received (Count II), fraud (Count III), violation of the Indiana Deceptive Consumer Sales Act
(Count IV), deception or intentional misrepresentation (Count V), negligence (including negligent
misrepresentation and negligence per se) (Count VI), constructive fraud (Count VII), and breach
of fiduciary duty (Count VIII) (Filing No. 1-2 at 15-23). The Defendants jointly filed a motion to
dismiss, which the Court denied (Filing No. 115).
Prior to the Court issuing its Order denying the motion to dismiss, but after the parties had
fully briefed their Motion, the Plaintiffs filed an Amended Motion for Class Certification (Filing
No. 77). 1 Plaintiffs filed an opening brief, reply brief, and numerous exhibits in support of their
Amended Motion for Class Certification. Defendants filed a response brief, exhibits, and
supplemental authority in opposition to the Amended Motion for Class Certification. On
September 29, 2021, the Court issued its Order denying the Plaintiffs' Amended Motion for Class
Certification (Filing No. 186). The Plaintiffs then filed the instant Motion for Reconsideration
(Filing No. 189).

The original motion to certify class (Filing No. 47) was dismissed as moot after the Amended Motion for Class
Certification was filed (see Filing No. 95).
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II.

LEGAL STANDARD

Motions to reconsider filed pursuant to Federal Rule of Civil Procedure 54(b) are for the
purpose of correcting manifest errors of law or fact or to present newly discovered evidence not
available at the time of briefing. Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir.
2013); State Farm Fire & Cas. Co. v. Nokes, 263 F.R.D. 518, 526 (N.D. Ind. 2009). The motion
is to be used "where the Court has patently misunderstood a party, or has made a decision outside
the adversarial issues presented to the Court by the parties, or has made an error not of reasoning
but of apprehension." Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191
(7th Cir. 1990) (citation omitted). A motion to reconsider under Rule 54(b) also may be appropriate
where there has been "a controlling or significant change in the law or facts since the submission
of the issue to the Court." Id. (citation omitted).
A manifest error "is not demonstrated by the disappointment of the losing party. It is the
wholesale disregard, misapplication, or failure to recognize controlling precedent." Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation and quotation marks
omitted). Additionally, "[r]econsideration is not an appropriate forum for rehashing previously
rejected arguments or arguing matters that could have been heard during the pendency of the
previous motion." Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004) (citation and quotation
marks omitted).
Motion practice is not an exercise in trial and error or maybe-maybe not where a
party can reserve arguments to present later if earlier ones fail. The Court is entitled
to assume that, if [a party] had viable arguments to support its claim, it would have
presented them. The Court will not conduct [a party's] research and build [the
party's] analysis in order to find facts and law to support [the party's] own claims.
Brownstone Publ'g, LLC v. At&T, Inc., 2009 U.S. Dist. LEXIS 25485, at *7 (S.D. Ind. Mar. 24,
2009). A motion to reconsider "is not an opportunity to relitigate motions or present arguments,

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issues, or facts that could and should have been presented earlier." Id. "The district court's opinions
are not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure."
A&C Constr. & Installation, Co. WLL v. Zurich Am. Ins. Co., 963 F.3d 705, 709 (7th Cir. 2020)
(internal citation and quotation marks omitted).
Because this is a putative class action, the Court balances the above standard with Rule
23(c)(1)(C), which states, "[a]n order that grants or denies class certification may be altered or
amended before final judgment." "[A] district court has broad discretion to determine whether
certification of a class is appropriate." Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d
584, 596 (7th Cir. 1993). Under Rule 23(c)(1)(C), the Court retains authority to modify or vacate
a class certification at any time prior to final judgment. "[T]he district court has the power at any
time before final judgment to revoke or alter class certification if it appears that the suit cannot
proceed consistent with Rule 23's requirements." Alliance to End Repression v. Rochford, 565 F.2d
975, 977 (7th Cir. 1977). "Even after a certification order is entered, the judge remains free to
modify it in the light of subsequent developments in the litigation." Gen. Tel. Co. of the Sw. v.
Falcon, 457 U.S. 147, 160 (1982). However, courts are generally reluctant to reconsider and
modify previous orders, even in the class certification context, in part because of the law-of-thecase doctrine and to avoid costly delays to the proceedings. 3 NEWBERG AND RUBENSTEIN ON
CLASS ACTIONS § 7:35 (6th ed.).
III.

DISCUSSION

In their Amended Motion for Class Certification, the Plaintiffs asked the Court to certify a
"Damages Class" consisting of "[a]ll individuals and entities who paid administrative fees,
violation fees, collections fees, and/or penalties arising from use of the Riverlink Connect Tolling
System using Unregistered Video Accounts." (Filing No. 77 at 1.) They also asked the Court to

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certify a "Damages Subclass" consisting of "[a]ll individuals and entities who paid administrative
fees, violation fees, collections fees, and/or penalties for failure to timely pay a Toll Notice that
was never printed and mailed by Defendant." Id. Finally, the Plaintiffs asked the Court to certify
an "Issue Class," as follows:
As to all individuals and entities who are assessed administrative fees, violation
fees, collections fees, and/or penalties arising from their use of the Riverlink
Connect Tolling System using Unregistered Video Accounts, whether Defendants
may lawfully assess administrative fees, violation fees, collections fees, and/or
penalties against UVA Customers when Defendants (1) set the 1st Toll Notice due
date for less than thirty-five (35) days after the date of the notice's generation;
and/or (2) failed to mail the requisite prior notice to the UVA Customer as described
in the Business Rules.
Id. at 1–2.
In its Entry on Plaintiffs' Amended Motion for Class Certification, (Filing No. 186) the
Court concluded that class certification was not appropriate and denied the Motion. The Court
explained to the parties that, in order to obtain certification, the party seeking class certification
bears the burden of proof in establishing each of the requirements under Federal Rule of Civil
Procedure 23, and the failure to satisfy any one of the elements precludes certification. Id. at 5
(citing Retired Chi. Police Ass'n v. City of Chi., 7 F.3d 584, 596 (7th Cir. 1993); Susman v. Lincoln
Am. Corp., 561 F.2d 86, 90 (7th Cir. 1977)). The Court determined that class certification was not
warranted because the Plaintiffs could not satisfy the requirement of Rule 23(b)(3) "that the
questions of law or fact common to class members predominate over any questions affecting only
individual members, and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy." Because individual questions would predominate and
because ascertainability was lacking, the Court denied class certification of the proposed "Damage
Class", the "Damage Subclass and the "Issue Class." Id.
In their pending Motion for Reconsideration, the Plaintiffs assert,

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From reading the Court's Order, it appears that there may be a misunderstanding of
Plaintiffs' case theory. Plaintiffs do not concede Defendants may assess fees or
penalties 35 days following the generation of a notice. Plaintiffs have provided
evidence Defendants cannot assess any fees or penalties against any class member
at any time unless they first fully comply with the Business Rules' notice and timing
requirements.
(Filing No. 192 at 4–5 (emphasis in original).) They also contend, "Plaintiffs' case theory is
materially different than the Court originally understood and Plaintiffs have additional evidence
allowing them to easily identify subclass members. Therefore, Plaintiffs respectfully move this
Court to reconsider its Order." Id. at 7. Based on the Plaintiffs' belief that the Court misunderstood
their case theory, they argue that, because any assessment of any fees or penalties is illegal without
first complying with the Business Rules, the Court's concerns with predominance and
ascertainability are vitiated, and class certification is appropriate. In support of their Motion for
Reconsideration, the Plaintiffs advance arguments similar to those that they presented to support
their Amended Motion for Class Certification as well as additional exhibits.
Regarding the Plaintiffs' contention that the Court misunderstood the Plaintiffs' case theory,
the Court assures the Plaintiffs that their contention is incorrect, and the Court understands their
case theory. The Plaintiffs assume a misunderstanding based upon one sentence taken in isolation
out of the Court's 33-page Order. The Plaintiffs' isolated quotation notes, "The Court understood
Plaintiffs to concede 'Defendants can[] assess at least initial fees and/or penalties thirty-five days
following the generation of a notice.' (Dkt. #186 at 24)." (Filing No. 192 at 4.) The Plaintiffs'
isolated quotation is found in this paragraph from the Court's Order:
Under Plaintiffs' theory of the case, "each 1st Toll Notice [must] include a
'Due Date' of thirty-five (35) days after the date on which the notice is generated."
(See Filing No. 100 at 11.) Under this theory, then, no injury could befall
individuals who paid their first fee or penalty thirty-five days after notice
generation. In other words, Plaintiffs do not seem to contend that Defendants cannot
assess at least initial fees and/or penalties thirty-five days following the generation
of a notice, so how could individuals paying their first fees and/or penalties after

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that window suffer injury? And as this case involves escalating fees and penalties
cascading from the first "due date," this Damages Class, as structured, is overly
inclusive and too broad to be limited to only those who suffered harm. How are the
parties and the Court to, on a class-wide basis, discern who was actually harmed
without minutiae overrunning the case?
(Filing No. 186 at 24.)
Looking at the Court's Order in its entirety shows that the Court understood the Plaintiffs'
arguments and case theory. Some examples include:
Plaintiffs reply that Damages Class members were each harmed by Defendants'
failure to comply with the Business Rules' requirements, which govern Defendants'
operations. In fact, since Defendants do not follow the Business Rules in their
dealings with Class Members[,] . . . Defendants' fees are unlawful, creating a prima
facie case in tort and equity.
(Filing No. 186 at 19–20 (quoting Plaintiffs' reply brief).)
Plaintiffs' legal claims apply to the entire Class when they seek to hold Defendants
accountable for their illegal imposition of fines, and their associated deceptive acts
– fines and deceptive acts that were uniformly imposed on and affected all Class
Members.
(Filing No. 186 at 14 (quoting Plaintiffs' opening brief).)
Plaintiffs, like all putative class members, did not receive a 1st Toll Notice that
allowed them thirty (30) days to pay the toll before being assessed a fee or penalty,
and Defendants set the due date for twenty-nine days from the generation of the
Notice.
(Filing No. 186 at 14 (quoting Plaintiffs' opening brief).)
Defendants did not follow this protocol, and instead have consistently mailed 1st
Toll Notices with a due date of 30 days after the invoice date, which is earlier than
contemplated by the Business Rules (35 days after generation date).
(Filing No. 186 at 4 (citing Plaintiffs' evidence).)
Plaintiffs maintain that certification is appropriate because Defendants used tolling
software parameters and deceptive form letters to [convince Damages] Class
Members to pay unlawful fees while misrepresenting to those [Damages] Class
Members that the fees were owed under Indiana law.

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(Filing No. 186 at 18 (quoting Plaintiffs' opening brief).)
Plaintiffs' evidence is the same as all Class Members' evidence; Defendants' system
parameters, database information, and templated mailings prove all Class Members'
claims.
(Filing No. 186 at 15 (quoting Plaintiffs' opening brief).)
While Defendants contend that the Damages Class is overinclusive by including
individuals who timely paid their tolls, [a]ll Damages Class Members suffered
injuries by paying Defendants improper fees since Riverlink customers who pay
within thirty (30) days of the 'Invoice Date' are not assessed fees.
(Filing No. 186 at 20 (quoting Plaintiffs' reply brief).)
Plaintiffs reply that attacks on the Damages Class are misplaced when this class
applies only to those UVA Customers who paid fees, not to those who were only
assessed fees.
(Filing No. 186 at 23 (quoting Plaintiffs' reply brief).)
The Court understood the Plaintiffs' case theory that fees and penalties cannot be assessed
without first complying with the Business Rules, and the Court also understood that the Plaintiffs
defined their Damages Class and Damages Subclass based on fees and/or penalties being paid, not
simply being assessed. The Plaintiffs' mistaken belief that the Court misunderstood their case
theory does not warrant reconsidering the class certification Order. Furthermore, the arguments
advanced by the Plaintiffs in their Motion for Reconsideration and their additional exhibits do not
affect the Court's previous certification analysis and conclusion that individualized questions
predominate over common questions thereby making class certification inappropriate.
The Plaintiffs alternatively request that they be permitted to amend their class definitions
to be,
Damages Class:

All individuals and entities who paid administrative fees, violation
fees, collections fees, and/or penalties arising from use of the
Riverlink Connect Tolling System using Unregistered Video
Accounts.

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Damages Subclass 1:

All individuals and entities who paid administrative fees, violation
fees, collections fees, and/or penalties for failure to timely pay a Toll
Notice that (1) is not identified in a Printed/Mailed 'Confirmation'
report; or (2) is identified in a 'Reject' report.

Damages Subclass 2:

All individuals and entities who paid administrative fees, violation
fees, collections fees, and/or penalties arising from use of the
Riverlink Connect Tolling System using Unregistered Video
Accounts before the greater of (1) 35 days after their 1st Toll Notice
was generated; or (2) 30 days after the 1st Toll Notice was mailed.

Issue Class:

As to all individuals and entities who are assessed administrative
fees, violation fees, collections fees, and/or penalties arising from
their use of the Riverlink Connect Tolling System using
Unregistered Video Accounts, whether Defendants may lawfully
assess administrative fees, violation fees, collections fees, and/or
penalties against UVA Customers when Defendants (1) set the 1st
Toll Notice due date for less than thirty-five (35) days after the date
of the notice's generation; and/or (2) failed to mail the requisite prior
notice to the UVA Customer as described in the Business Rules.

(Filing No. 189 at 3–4.) However, these proposed amended class definitions still suffer from the
problem of individualized questions predominating over common questions, so the Court denies
the Plaintiffs' alternative request to amend the class definitions.
On May 2, 2022, approximately six months after the Motion for Reconsideration was fully
briefed, the Plaintiffs filed their Motion to Supplement Evidence (Filing No. 303), asking to
supplement the evidence for the Motion for Reconsideration to include expert deposition excerpts,
an expert report, and curriculum vitae. The Court grants the Motion to Supplement Evidence, and
the Court considered that filing and its response and reply when considering the Motion for
Reconsideration.
After the Plaintiffs filed their reply brief in support of their Motion for Reconsideration,
the Plaintiffs also filed a Motion for Oral Argument on the Motion for Reconsideration (Filing No.
203). The Court determines that the parties' briefing was sufficient to address the issues, and there

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is no need for oral argument on the Motion for Reconsideration, so the Motion for Oral Argument
is denied.
IV.

CONCLUSION

For the foregoing reasons, the Plaintiffs' Motion for Reconsideration (Filing No. 189) is
DENIED. The Plaintiffs' claims will not proceed on a class-wide basis. The Plaintiffs' Motion for
Oral Argument (Filing No. 203) also is DENIED. The Plaintiffs' Motion to Supplement Evidence
(Filing No. 303) is GRANTED, and the Court considered that filing and its response and reply
when considering the Motion for Reconsideration.
SO ORDERED.
Date:

9/15/2022

Distribution:
Jacob R. Cox
COX LAW OFFICE
[e-mail]

Tracy Nicole Betz
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]

Jonathon Noyes
WILSON KEHOE & WININGHAM
[e-mail]

James R. A. Dawson
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]

William E. Winingham
WILSON KEHOE & WININGHAM
[e-mail]

Steven T. Henke
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]

Vivek Randle Hadley
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]

Nadine McSpadden
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]

Manuel Herceg
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]

Neil Peluchette
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]

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