Sacchi v. Verizon Communications Inc. et al
Filing
34
OPINION & ORDER re: 26 FIRST MOTION for Reconsideration re; Case Stayed, 23 Memorandum & Opinion, filed by John Sacchi. Plaintiff's motion for reconsideration and request for interlocutory appeal are denied. The Clerk of Court is respectfully requested to close the motion pending at Docket No. 26. (Signed by Judge Ronnie Abrams on 4/14/2015) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED:APR
14 2015
JOHN SACCHI, an individual, on behalf of
himself and all others similarly situated,
Plaintiff,
-v-
No. 14-CV-423 (RA)
OPINION & ORDER
VERIZON ONLINE LLC and DOES 1
through 100, inclusive,
Defendants.
RONNIE ABRAMS, United States District Judge:
Plaintiff John Sacchi moves this Court to reconsider its February 23, 2015 Opinion and
Order (the "February Order") granting Defendant Verizon Online LLC's ("Verizon") motion to
stay and compel arbitration. In the alternative, Plaintiff requests that this Court certify an interlocutory appeal of the February Order pursuant to 28 U.S.C. § 1292(b). 1 Familiarity with the facts
and with the February Order is assumed. For the reasons that follow, Plaintiff's motion to reconsider and request to seek interlocutory appeal are denied.
I.
Motion to Reconsider
Local Civil Rule 6.3 allows a party to move for reconsideration as to "matters or controlling
decisions which counsel believes the Court has overlooked." U.S. Dist. Ct. Rules S. & E.D.N.Y.,
1
Plaintiff did not raise the issue of interlocutory appeal in his initial motion papers nor separately move for
such relief. Instead, he raised it for the first time in his reply brief. "Generally, a court '[does] not consider issues
raised in a reply brief for the first time because if a [party] raises a new argument in a reply brief [the opposing party]
may not have an adequate opportunity to respond to it."' Evergreen Nat. lndem. Co. v. Capstone Bldg. Corp., No.
CIV.A. 3-07-CV- I I 89 (JCH), 2008 WL 926520, at *2 (D. Conn. Mar. 31, 2008) (quoting U.S. v. Pepin. 514 F.3d 193,
203 n.13 (2d Cir.2008) (alterations in original). However, since Verizon was afforded the opportunity to file a surreply in response to Plaintiff's new argument, the Court will consider Plaintifrs request for interlocutory appeal as an
alternative to his motion for reconsideration. See Am. Hotel Int'! Grp., Inc. v. OneBeacon Ins. Co., 6 I I F. Supp. 2d
373, 375 (S.D.N.Y. 2009) afj"d, 374 F. App'x 71 (2d Cir. 2010) ("the Second Circuit has made it abundantly clear
that a district court has discretion to consider a belatedly-raised argument").
Civ. R. 6.3. Reconsideration of a court's prior order is "an extraordinary remedy to be employed
sparingly in the interests of finality and conservation of scarce judicial resources." Ferring B. V
v. Allergan, Inc., No. 12-CV-2650 (RWS), 2013 WL 4082930, at *1 (S.D.N.Y. Aug. 7, 2013)
(quoting Sikhs for Justice v. Nath, 893 F. Supp. 2d 598, 605 (S.D.N.Y. 2012)). Accordingly, the
"standard for granting such a motion is strict, and 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). "A party seeking reconsideration
may neither repeat 'arguments already briefed, considered and decided,' nor 'advance new facts,
issues or arguments not previously presented to the Court."' Ferring B. V, 2013 WL 4082930 at
*1 (quotingSchonbergerv. Serchuk, 742F. Supp. 108, 119(S.D.N.Y. 1990)). A motion to reconsider "should not be granted where the moving party seeks solely to relitigate an issue already
decided." Schrader, 70 F.3d at 257.
Plaintiff fails to identify any "controlling decisions" which the Court "overlooked" and
instead reprises arguments previously made and addressed by the Court, seeking simply to relitigate the same issues. His motion to reconsider therefore fails.
Plaintiff first argues that this Court misread Coiro v. Wachovia Bank, NA., No. CIV. 113587, 2012 WL 628514 (D.N.J. Feb. 27, 2012). In so doing, Plaintiff raises the very same argument he raised in his initial opposition to Verizon's motion, which has already been "briefed,
considered and decided." Ferring B. V, 2013 WL 4082930 at *1. Relatedly, Plaintiff also cites to
Discover Bank v. Shea, 362 N.J. Super. 200 (Ch. Div. 2001), which he did not cite in his initial
briefing but which the Court already explicitly addressed in the February Opinion. See Sacchi v.
Verizon Online LLC, No. 14-CV-423 (RA), 2015 WL 765940, at *7, *7 n.9.
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Plaintiff also argues that the Court gave undue weight to Mayer v. Verizon New Jersey,
Inc., which Plaintiff contends is distinguishable from the instant case. See Order, Mayer v. Verizon
New Jersey, Inc., No. 13-3980-FSH (D.N.J. May 6, 2014), ECF No. 31. Again, however, the Court
already addressed this precise issue in its February Order. See Sacchi, 2015 WL 765940 at *7 n.8.
Plaintiffs additional citation to Cohen v. Chase Bank, NA., 679 F. Supp. 2d 582, 592 n. l 0 (D.N.J.
2010) not only fails to advance his argument-the footnote cited merely quotes a Delaware statute-but this is yet another case that Plaintiff never mentioned in his initial briefing and which in
any event this Court addressed in its February Order. See Sacchi, 2015 WL 765940, at *7 n.9.
Moreover, not only were none of these cases "overlooked," none constitute "controlling" authority.
Plaintiff makes one final argument, contending that the February Order will have an adverse impact on "consumers throughout New Jersey." Pl.'s Mem. at 5. True or not, disagreement
with an opinion's outcome is not grounds for reconsideration. See R.F.MA.S., Inc. v. Mimi So,
640 F. Supp. 2d 506, 512 (S.D.N.Y. 2009) ("A party's fundamental disagreement with a court's
legal analysis and conclusions as to a matter fully considered does not serve as sufficient ground
to warrant reconsideration of the court's decision.")
Plaintiff's motion for reconsideration is thus denied.
II.
Interlocutory Appeal
In the alternative, Plaintiff requests that this Court revise the February Order to permit an
immediate appeal pursuant to 28 U.S.C. § 1292(b). This request is also denied.
An appeal from an interlocutory order staying an action and directing the parties to arbitration may not be taken except as provided under 28 U.S.C. § 1292(b). 9U.S.C. § 16(b). "Section
l 292(b) provides for certification of an order for interlocutory appeal when the court determines:
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'(1) that such order 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 [that] order may materially
advance the ultimate termination of the litigation."' In re Face book, Inc., /PO Sec. & Derivative
Litig., 986 F. Supp. 2d 524, 529 (S.D.N.Y. 2014) (quoting 28 U.S.C. § 1292(b)) (alteration in
original). "The proponents of an interlocutory appeal have the burden of showing that all three of
the substantive criteria are met." Id. "Interlocutory appeals are presumptively disfavored," Garber
v. Office of the Comm'r a/Baseball, No. 12-CV-3704 (SAS), 2014 WL 4716068, at *1 (S.D.N.Y.
Sept. 22, 2014), and section 1292(b) is to be "strictly limited" because "only exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after
the entry of a final judgment." In re Facebook, 986 F. Supp. 2d at 529-30 (quoting McNeil v.
Aguilos, 820 F. Supp. 77, 79 (S.D.N.Y. 1993) (alteration in original). "[E]ven when the elements
of section 1292(b) are satisfied, the district court retains unfettered discretion to deny certification." Garber, 2014 WL 4716068, at *1 (internal quotation marks omitted).
Plaintiff recites the three statutory criteria of section 1292(b) but fails to even attempt to
address how the February Order satisfies those criteria. There is no specification as to what the
"controlling question of law" relevant to this case is, how "there is substantial ground for difference of opinion" regarding that question of law, or how an immediate appeal "may materially
advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). Plaintiff instead merely
states that the Supreme Court's recent grant of certiorari in DirecTV, Inc. v. Imburgia, No. 14-462,
2015 WL 1280237 (U.S. Mar. 23, 2015), "showcases the continuing efforts by both federal and
state courts to fully implement" AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), and
thus this area of law "remains highly volatile and of vast significance .... " Reply at 2. This is
insufficient to warrant an immediate appeal in this case.
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Imburgia, a case appealed from a California Court of Appeal decision, involves the inter-
pretation of a specific arbitration clause in light of the Supreme Court's Concepcion decision. See
Imburgia v. DirecTV, Inc., 170 Cal. Rptr. 3d 190 (Cal. Ct. App. 2014). The arbitration clause in
that case provides for a class waiver, but also states that "[i]f ... the law of your state would find
this agreement to dispense with class arbitration procedures unenforceable, then this entire [arbitration agreement] is unenforceable." Id. at 193. The California Court of Appeal held that,
pursuant to this contract language, because class action waiver is unenforceable under California
law, the entire arbitration agreement was unenforceable. Id. at 198. In so holding, the court found
that the contract language precluded consideration of the preemptive effect of the Federal Arbitration Act (the "FAA"), which, under Concepcion, would override state laws prohibiting class action
waivers and render such provisions enforceable. Id. at 195-96. The Ninth Circuit Court of Appeals, in a separate case interpreting the same contract language, came to the opposite conclusion,
holding that because the FAA, "which under Concepcion requires the enforcement of arbitration
agreements that ban class procedures, is the law of California and every other state," the "law of
your state" language "already incorporates" the preemptive effect of the FAA. Murphy v. DirecTV, Inc., 724 F.3d 1218, 1226, 1228 (9th Cir. 2013). Thus, the court concluded, because class
waivers are enforceable under Concepcion, the arbitration agreement at issue in that particular
contract was enforceable. Id. at 1228.
As the petition for a writ of certiorari states, the question presented to the Supreme Court
is "[ w ]hether the California Court of Appeal erred by holding, in direct conflict with the Ninth
Circuit, that a reference to state law in an arbitration agreement governed by the [FAA] requires
the application of state law preempted by the [FAA]." Pet. for Writ of Cert., Imburgia, No. 14462, 2014 WL 5359805, at *i; see also Br. in Opp. to Pet. for Writ of Cert., Imburgia, No. 14-462,
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2015 WL 455815, at *i (stating the question presented as "'[w]hether the Court of Appeal erred in
finding that the parties could select state law to the exclusion of federal law to determine the enforceability of a class action waiver"). Plaintiff here does not suggest how this question relates to
the instant case. Neither party ever raised this contract interpretation issue on Verizon's initial
motion to compel, nor did the Court base its decision on any consideration of such an issue. Indeed, the arbitration clause at issue here makes no reference to state law whatsoever. The most
analogous clause in the Amended Agreement provides that "[i]f for some reason the prohibition
on class arbitrations ... cannot be enforced, then the agreement to arbitrate will not apply."
Amended Agreement§ 18.7. The agreement otherwise plainly provides that "[t]he Federal Arbitration Act applies to this agreement." Id. at § 18.1. In Imburgia, the California Court of Appeal
found that an agreement with nearly identical language to that at issue here was "readily distinguishable" from the agreement at issue there because it did not "involve[] an arbitration agreement
that specifically provides that the enforceability of the class action waiver is to be decided under
state law." Imburgia, 170 Cal. Rptr. 3d at 196 (distinguishing Litman v. Cellco P 'ship, 655 F.3d
225, 231 n.8 (3d Cir. 2011 )). For the same reason, it is difficult to see how the Supreme Court's
decision in Imburgia would affect the outcome of the instant case, much less how it involves a
question of law that would be "controlling" here. 28 U.S.C. § 1292(b). Indeed, Plaintiff himself
recognizes that "any decision rendered by the United States Supreme Court in DirecTV Inc. v.
Imburgia may not directly impact the dispositive issues here .... " Reply at 2.
It is also unclear why permitting immediate appeal here would "materially advance the
ultimate termination of the litigation." 28 U .S.C. § l 292(b ). Plaintiff does not address this statutory element in any way, though the implication raised in his reply brief is that the Supreme Court's
decision in Imburgia-which will not be heard until the Court's next term commencing in October,
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Reply at 2 n.1-may somehow overturn the February Order and "obviate[]" arbitration. Reply at
2. This is simply insufficient. See, e.g., Jn re Goldman Sachs Grp., Inc. Sec. Litig., No. 10-CV3461 (PAC), 2014 WL 5002090, at *2 (S.D.N.Y. Oct. 7, 2014) ("the mere possibility that a reversal of the Court's order would end the case is insufficient to meet this third element. ... This onesided argument fails to take into account the Uust as likely) possibility that certification will delay
the action further."); Murray v. UBS Sec., LLC, No. 12-CV-5914 (KPF), 2014 WL 1316472, at *7
(S.D.N.Y. Apr. 1, 2014) ("it is safe to assume that the appeal process will take longer than the
arbitration, thereby extending the time in which a final decision on the merits is rendered").
Furthermore, allowing certification of the February Order "would be inconsistent with the
national policy favoring arbitration, and the Second Circuit's distaste for delaying the arbitral process through appellate review." Murray, 2014 WL 13164 72, at *8 (internal quotation marks and
citations omitted). "This, too, militates in favor of denying Plaintiffs motion." Id.; see also, e.g.,
Ryan, Beck & Co .. LLC v. Fakih, 275 F. Supp. 2d 393, 398 (E.D.N.Y. 2003) (denying motion for
interlocutory appeal, noting that "the Second Circuit observed in Salim Oleochemicals v. M/V
Shropshire, 278 F.3d 90, 93 (2d Cir. 2002), [that] an important policy consideration is the 'proarbitration tilt' of ... the [FAA] ... [and that] [u]nnecessary delay of the arbitral process through
appellate review is disfavored" (internal quotation marks omitted)).
Plaintiffs request for interlocutory appeal is thus denied. 2
2
In his reply brief, Plaintiff also reprises his arguments regarding the factual distinctions between this case
and Mayer, as well as his contention that the February Order will result in "enormous" adverse effects. Reply at 2, 3.
It is unclear if these contentions are meant to bolster his arguments for reconsideration or interlocutory appeal. If the
former, those arguments fail for the reasons discussed above. If the latter, nowhere does Plaintiff articulate how these
points of disagreement with the February Order meet the three elements of section l 292(b ). Having failed to even
attempt to meet his burden under the statute, and given the "presumptive[] disfavor[]" of interlocutory appeals, Garber, 2014 WL 4716068, at *I, particularly in the context of the "national policy favoring arbitration," Murray, 2014
WL 1316472, at *8, as well as the Court's "unfettered discretion to deny certification," Garber, 2014 WL 4716068,
at * 1, Plaintiffs request for interlocutory appeal is thus denied on these grounds, as well.
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CONCLUSION
Plaintiff's motion for reconsideration and request for interlocutory appeal are denied.
The Clerk of Court is respectfully requested to close the motion pending at Docket No. 26.
SO ORDERED.
Dated:
April 14, 2015
New York, New York
Ron ie Abrams
United States District Judge
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