Grawitch et al v. Charter Communications, Inc.

Filing 31

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs motion to alter or amend judgment is DENIED. (Doc. No. 24.) IT IS FURTHER ORDERED that Plaintiffs motion for leave to file a first amended complaint is DENIED. (Doc. No. 25.) Signed by District Judge Audrey G. Fleissig on 3/8/2013. (KSM)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MATT GRAWITCH and MIKE WOODY,
Individually and on behalf of all others
similarly situated,
Plaintiffs,
vs.
CHARTER COMMUNICATIONS, INC.,
Defendant.

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Case No. 4:12CV01990 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ motion (Doc. No. 24) to alter or
amend judgment and Plaintiffs’ motion (Doc. No. 25) for leave to file a first amended
complaint. For the reasons set forth below, the Court will deny both motions.
In this putative class action, Plaintiffs sought damages for alleged violations of the
Missouri Merchandising Practices Act and for breach of contract, related to the internet
service speed available to Plaintiffs under an Internet Residential Customer Agreement
with Defendant. On January 23, 2012, the Court dismissed Plaintiffs’ complaint for
failure to state a claim. (Doc. No. 22.) This decision was based on several grounds: the
speed disclaimer in the Agreement, adequate notice provided to Plaintiffs, and Plaintiffs’
failure to show damages.
In support of their present motion, filed on February 7, 2013, to alter or amend
judgment, Plaintiffs argue that the Court erroneously considered matters outside the
pleadings. They also contend that the Court erred in finding that they had notice of the

internet service speed available. They challenge the Court’s reliance on the notice
provided to Plaintiff Mike Woody, submitted to the Court by Charter for the first time in
its reply in support of its motion to dismiss.
Plaintiffs also argue that the Court incorrectly concluded that they failed to show
damages. In support of this argument, Plaintiffs present the new argument that
Defendant acknowledged the existence of damages by removing the case to federal court
under the Class Action Fairness Act.
A motion to alter or amend judgment serves to correct “manifest errors of law or
fact or to present newly discovered evidence.” United States v. Metro. St. Louis Sewer
Dist., 440 F.3d 930, 933 (8th Cir. 2006) (citation omitted). However, such motions
“cannot be used to introduce new evidence, tender new legal theories, or raise arguments
which could have been offered or raised prior to entry of judgment.” Innovative Home
Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.
1998). A motion to alter or amend judgment provides “relief in extraordinary
circumstances,” Jones v. Steele, No. 4:06CV767RWS, 2010 WL 618474, at *4 (E.D. Mo.
Feb. 18, 2010) (citation omitted), and district courts have “broad discretion in
determining whether to grant or deny [such] a motion,” Metro. St. Louis Sewer Dist., 440
F. 3d at 933.
Here, the Court has reviewed Plaintiffs’ arguments and finds them unpersuasive.
The matters relied upon by the Court were of a nature that a court may properly consider
on a motion to dismiss. Plaintiffs are correct that the notice provided specifically to
Woody was introduced into the record for the first time in Defendant’s reply addressing
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its motion to dismiss. Plaintiffs do not challenge the accuracy of the notice or that it was
provided. In any event, the other grounds relied upon by the Court fully support the
dismissal against both Plaintiffs. Plaintiffs’ other grounds to amend the judgment either
constitute impermissible new argument available to Plaintiffs before the Court dismissed
the case, or were already raised and properly rejected. This is not a case in which
Plaintiffs paid for a service they did not receive. The Court further concludes that the
new argument with respect to damages is without merit.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion to alter or amend judgment is
DENIED. (Doc. No. 24.)
IT IS FURTHER ORDERED that Plaintiffs’ motion for leave to file a first
amended complaint is DENIED. (Doc. No. 25.)

Audrey G. Fleissig
AUDREY G. FLEISSIG
UNITED STATES DISTRICT COURT
Dated this 8th day of March, 2013

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