Salameno et al v. Gogo Inc. et al
MEMORANDUM & ORDER denying plaintiff's #37 Motion for Reconsideration. There has been no change in controlling law, and no evidence was discovered that could not have been produced before the July 25 Order. Ordered by Judge Jack B. Weinstein on 9/13/2016. (Barrett, C)
IN CLERK'S OFFICE
U.s. DISTRICT COURT E.D.N.Y
* SEP 152016 *
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CHARLES SALAMENO, MARIA-ANGELA
SANZONE and JOHN JENSEN, on behalf of
themselves and all others similarly situated,
- against GOGO INC. and GOGO LLC,
Fisher Injury Lawyers
6715 Perkins Road
Baton Rouge, LA 70808
Anthony Joseph Laura
Epstein Becker Green
250 Park Avenue
New York, NY 10177
JACK B. WEINSTEIN,
Senior United States District Judge:
Defendants Gogo Inc. and Gogo LLC (collectively, "Gogo") provide internet access on
airplanes. Plaintiffs Charles Salameno, Maria-Angela Sanzone, and John Jensen are dissatisfied
customers who repeatedly used Gogo's product over a period of months or years. Plaintiffs
brought suit, on behalf of themselves and all others similarly situated, alleging violations of
consumer protection statutes and making claims for breach of contract, fraud, promissory
estoppel, and unjust enrichment.
The court granted Gogo's motion to compel arbitration and dismissed the case on July 7,
2016. See Mem. & Order, July 7, 2016, ECF No. 34. An amended memorandum and order was
issued on July 25, 2016, staying the case rather than dismissing it, and administratively closing
the matter while arbitration went forward. See Am. Mem. & Order, July 25, 2016, ECF No. 36
("July 25 Order"). Plaintiffs moved for reconsideration of the July 7, 2016 order compelling
arbitration. Not. of Mot., Aug. 1, 2016, ECF No. 37. Their motion will be deemed to include a
request for reconsideration of the July 25 Order. Plaintiffs' motion is denied.
A detailed factual recitation is set forth in the July 25 Order. See July 25 Order at 5-10.
It is incorporated as if set forth in this memorandum.
Motion to Reconsider
"Rule 59 is not a vehicle for relitigating old issues, presenting the case under new
theories, securing a rehearing on the merits, or otherwise taking a 'second bite at the apple."
Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012), as amended
(July 13, 2012) (internal citation omitted). Rather, a motion for reconsideration "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 v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
Local Civil Rule 6.3 requires that a motion for reconsideration be filed "within fourteen
(14) days after entry of the Court's determination of the original motion." Local Civ. R. 6.3.
"The court retains discretion to consider a motion for reargument notwithstanding the movant's
failure to comply with Local Rule [6.3]'s requirements, but it will only exercise this discretion
when justice so requires." Smith v. Town of Hempstead Dept of Sanitation Sanitary Dist. No. 2,
Bd. of Comm 'rs, 982 F. Supp. 2d 225, 230-31 (E.D.N.Y. 2013) (internal quotation marks and
citation omitted). "Justice requires the exercise of this discretion when, for example, there is an
intervening change in controlling law, such as the issuance of a relevant United States Supreme
Court decision." Id. at 231.
B. Application of Law to Facts
For equitable reasons, plaintiffs' motion is not untimely; it is deemed to be a motion for
reconsideration of the July 25 Order. The court issued its memorandum and opinion compelling
arbitration on July 7, 2016, and an amended order directing arbitration and staying the case on
July 25, 2016. Local Civil Rule 6.3 requires that a motion to reconsider be filed within fourteen
days, or July 21, 2016. Plaintiffs' motion was timely filed on August 1, 2016, insofar as it was a
motion to reconsider the July 25 Order. See Not. of Mot., Aug. 1, 2016, ECF No. 37.
The motion for reconsideration does not present any new evidence that would cause the
court to alter its initial conclusion. Plaintiffs rely only on evidence that they could have
presented with their complaint or in opposition to Gogo's motion to compel arbitration.
On June 27, 2016, the court directed Gogo to "file and docket a webpage screenshot of
the webpage plaintiffs would have seen when signing into their existing accounts." Order, June
27, 2016, ECF No. 30. In response, Gogo filed a screenshot of the sign-in page from an
American Airlines log-on website. Gogo explained with its submission, "While the precise
airline webpages each Plaintiff encountered on their hundreds of sign-ins are not readily
ascertainable, the format of those webpages on Plaintiffs' sign-ins would have mirrored the
attached." Letter from Anthony J. Laura, June 29, 2016, ECF No. 32 ("June 29 Letter").
Plaintiffs now argue that the webpage screenshot that Gogo produced in response to the
court's June 27, 2016 order was "an incomplete response." Mem. of Law in Supp. of Pls.' Mot.
for Reconsideration of this Court's July 7, 2016 Order, Aug. 1, 2016, ECF No. 37-1 ("Pis.'
Mem."), at 6; see also Pls.' Mem. of Law in Reply to Defs.' Opp'n to Pis.' Mot. for
Reconsideration, Aug. 31, 2016, ECF No. 45, at 4. They point to what they claim is the log-on
screen from a Delta Airlines webpage and argue that it does not clearly indicate the opportunity
to access the terms and conditions governing use of Gogo's service. Pls.' Mem. at 6. There are
three problems with plaintiffs' argument.
First, the evidence upon which plaintiffs base their motion is not new. Plaintiffs do not
offer any reason why they could not have filed their new Delta exhibits before this court's July
25 Order. Instead, plaintiffs point to Gogo's counsel's June 29, 2016 letter and contend that
Gogo has conceded the websites plaintiffs actually encountered were "not readily ascertainable."
Pls.' Mem. at 3. This argument is not convincing; plaintiffs' counsel was prepared to offer the
images at the motion hearing on June 30, 2016, indicating that they were, in fact, ascertainable.
See Hr'g Tr., June 30, 2016, at 14:21-15:2.
Second, there is no evidence - or even allegation - that any of the named plaintiffs ever
purchased Gogo's service through the Delta website that plaintiffs now, for the first time, submit
and rely upon. The only airline identified in the Amended Complaint as being used by plaintiffs
was Alaska Airlines. See Am. Compi., May 2, 2016, ECF No. 14, at ¶ 64. Without any
evidence that plaintiffs actually encountered the Delta website about which they are complaining
on this motion, their evidence is irrelevant.
Third, the court's decision did not rest solely on the features of the service purchase
webpage. As explained in the July 25 Order, in addition to the website apparently used to make
a first purchase, plaintiffs were notified of the link to terms and conditions each time they signed
in to use the service, and they then received an e-mail containing a link to the terms and
conditions of the particular purchase. See July 25 Order at 13. Individual plaintiffs failed, in
opposing Gogo's motion, to address the evidence that Gogo submitted in support of these facts,
and fail to do so again on this motion. The repeated notices that plaintiffs received, coupled with
the reasonable conclusion that plaintiffs are not unsophisticated lay internet users, makes it
reasonable to conclude that plaintiffs were warned of, could easily have obtained when
At the hearing on the motion for reconsideration on September 12, 2016, plaintiffs
conceded that the statute of limitations on the claim has not run, and that a new action, with or
without new parties, such as Delta Airlines, can be commenced. See Hr'g Tr., Sept. 12, 2016, at
32:6-16. No equitable reason for granting the motion for reconsideration exists.
There has been no change in controlling law, and no evidence was discovered that could
not have been produced before the July 25 Order. The motion for reconsideration is denied.
United States District Judge
Dated: September 13, 2016
Brooklyn, New York
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