Parks v. AT&T Mobility LLC et al

Filing 159

ORDER denying 152 Motion for Reconsideration Order Granting Motions for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 3/11/2013. (mb)

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA
BILLIE PARKS,
Plaintiff,
vs.
AT&T MOBILITY, LLC and
RADIO SHACK CORPORATION,
Defendants.

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Case No. CIV-09-212-D

ORDER
Before the Court is Plaintiff’s Motion to Reconsider the Court’s Order Granting the
Defendants’ Motions for Summary Judgment [Doc. No. 152], filed pursuant to Fed. R. Civ. P. 59.
Defendants have responded in opposition to the Motion, and the time for filing a reply brief has
expired. The Motion is thus at issue.
On September 25, 2012, the Court granted summary judgment to Defendants AT&T
Mobility, LLC (“ATTM”) and Radio Shack Corporation (“Radio Shack”) on Plaintiff Billie Parks’
claims of fraud and violation of the Oklahoma Consumer Protection Act. The claims arose from a
retail transaction in which Plaintiff purchased a notebook computer from Radio Shack and obtained
a discounted price by subscribing to a two-year service contract with ATTM. The material facts
were not disputed, and showed Plaintiff could not establish the damages allegedly caused by the
fraud: “actual damages by reason of incurring overage charges and damage to her credit.” Second
Am. Compl. [Doc. No. 80], ¶ 36. The Court rejected Plaintiff’s effort essentially to amend her
pleading by raising new theories of recovery in response to Defendants’ summary judgment motions.
She asserted for the first time in summary judgment briefs that her damages also included the cost
of Radio Shack’s computer because she would not have purchased it if the overage charges for

ATTM’s wireless services had been fully disclosed; the Court found this was a new claim that
“ha[d] never been part of this case, and cannot provide a basis for recovery at this point in the
litigation.” See Order of Sept. 25, 2012 [Doc. No. 150] (hereafter, “Order”) at 10-11. Plaintiff also
claimed for the first time she had suffered emotional distress because she was “worried sick” about
ATTM’s overage bill; the Court concluded that “a failure to plead emotional distress damages
precludes any award of such damages without obtaining leave for the plaintiff to amend the
complaint.” Id. at 12-13. The Court found an affidavit Plaintiff provided to support her new
theories of recovery attempted to create a “sham fact issue” under controlling precedent, and should
be disregarded. See id. at 11-12.
In her Rule 59 Motion, Plaintiff first seeks to distinguish the Tenth Circuit cases on which
the Court relied, arguing they are inapposite under the facts of this case. Plaintiff also asserts the
Court failed to address an argument she presented in opposition to summary judgment, that is, she
could recover nominal and punitive damages even if she could not establish actual damages. If this
argument was implicitly rejected, “Plaintiff urges the Court to reconsider its decision in light of the
Oklahoma and Tenth Circuit authorities cited which explicitly provide for the recovery of nominal
damages in a fraud case. Otherwise, Plaintiff urges the Court to certify the question to the
Oklahoma Supreme Court . . . .” See Pl.’s Motion Reconsider [Doc. No. 152] at 5. Plaintiff has
filed a Motion to Certify Questions of Law [Doc. No. 153], requesting this alternative relief.
Standard of Decision
Plaintiff refers to her Motion as one seeking a new trial under Rule 59(a). However, a
motion for reconsideration of a summary judgment ruling is governed by Rule 59(e), which
authorizes a motion to alter or amend a judgment. “The purpose for such a motion is to correct
manifest errors of law or to present newly discovered evidence.” Committee for First Amendment
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v. Campbell, 962 F.2d 1517, 1523 (10th Cir. 1992) (internal quotation omitted). “Grounds
warranting a [Rule 59(e)] motion to reconsider include (1) an intervening change in the controlling
law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent
manifest injustice.” Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195,
1212 (10th Cir. 2012) (quoting Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)
(alteration in Devon). “Thus, a motion for reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the controlling law. It is not appropriate to revisit
issues already addressed or advance arguments that could have been raised in prior briefing.”
Servants of Paraclete, 204 F.3d at 1012.
Discussion
Viewing Plaintiff’s arguments through the prism of Rule 59(e), the Court understands her
position to be that the Court misapprehended the law regarding the pleading requirements for her
fraud claim, and overlooked her argument regarding the recovery of nominal damages.
A.

Plaintiff’s Fraud Claim
Plaintiff urges the Court to reconsider its decision to limit the summary judgment issues to

the fraud claim asserted in the Second Amended Complaint. Upon consideration of Plaintiff’s
arguments, the Court is unpersuaded by her effort to distinguish the case authorities cited in the
Order. Plaintiff simply attempts to revisit issues previously addressed, and advances arguments that
previously could have been made. Plaintiff’s argument that fraud in the sale of Radio Shack’s
computer is implicit in a claim of fraud in the agreement for ATTM’s wireless services, is
inconsistent with federal pleading requirements, under which “a party must state with particularity
the circumstances constituting fraud.” See Fed. R. Civ. P. 9(b). The Court carefully examined the
Second Amended Complaint in making its ruling, and found no claim of fraud in the sale of the
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computer nor allegation that Plaintiff would not have purchased it if ATTM’s overage charges had
been fully disclosed. Plaintiff also failed to allege or request any emotional distress damages.1
B.

Nominal Damages
Plaintiff correctly states that the Court did not specifically address Wagstaff v. Protective

Apparel Corp., 760 F.2d 1074 (10th Cir. 1985), a case she cites for the proposition that “even if
[Plaintiff] could not establish ‘actual damages’ . . . , she was at least entitled to recover nominal
damages as well as punitive damages.” See Pl.’s Motion Reconsider [Doc. No. 152] at 4. Plaintiff
discussed Wagstaff in her summary judgment brief in the context of an argument that “nominal
damages may be recovered in a fraud case even if the plaintiff cannot quantify actual damages.”
See Pl.’s Resp. ATTM’s Mot. Summ. J. [Doc. No. 116] at 12. Plaintiff’s failure of proof, however,
was not an inability to quantify actual damages, but an inability to demonstrate any injury.
In the Order, the Court determined as follows: “An essential element of Plaintiff’s stated
claim is that she suffered damages as a result of defendant’s material misstatement or omission. To
establish this element, Plaintiff must show she suffered injury by acting in reliance on the alleged
fraudulent statement or omission.” See Order at 15-16 (internal quotation and citations omitted).
After discussing Oklahoma law and applying it to the undisputed facts of this case, the Court
determined that “Plaintiff has suffered no compensable injury or damages resulting from a failure
to receive the benefit of her bargain,” and thus Defendants were entitled to summary judgment on
the fraud claim. See id. at 17-18. The Court reached this conclusion because Plaintiff’s claimed

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Plaintiff does not challenge the precedent on which the Court relied for the principle that a plaintiff
must plead emotional distress damages. See Doelle v. Mountain States Telephone & Telegraph, 872 F.2d
942, 948 (10th Cir. 1989); see also Hamilton v. Water Whole Int’l Corp., 302 F. App’x 789, 797-98 (10th
Cir. 2008) (trial court erred in admitting evidence of emotional distress where the final pretrial order
“contain[ed] no claim for damages from the alleged fraud under a theory of mental or emotional distress”).
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injury of “incurring overage charges” was not established where no overage charges were ever paid,
nor expected to be paid under ATTM’s established policy for waiving charges when a customer
misunderstood the usage limits of the data plan.
The Court did not discuss Wagstaff because it is factually distinguishable and does not assist
Plaintiff’s case. In Wagstaff, the plaintiff’s decedent purchased security equipment and signed a
distributorship agreement with the sellers based on promises that he could become their distributor
by purchasing $50,000 worth of equipment. On appeal from a directed verdict on the plaintiff’s
fraud claim, the court of appeals found sufficient evidence of fraud in the defendants’
representations that the decedent was purchasing a distributorship with a potential for success, not
simply the equipment. The defendants also argued that the plaintiff failed to prove any damage
resulting from the fraud because goods valued at $50,000 were actually received. The court of
appeals disagreed, finding “a jury could infer that plaintiff’s decedent would not have paid $50,000
for the goods themselves, even if this were their market value, had the defendants not represented
that the package included the promise to help establish a successful distributorship.” Wagstaff, 760
F.2d at 1078. The court also reasoned:
[The plaintiff] did fail to prove by any substantial evidence the amount of actual
damages caused by defendants’ fraud. However, under Oklahoma law, [the plaintiff]
can recover punitive damages upon the showing of nominal damages from
defendants’ fraud. Moyer v. Cordel, 228 P.2d 645 (Okla.1951). Plaintiff clearly
introduced sufficient evidence from which a jury could have found at least nominal
damages.
Id. In other words, the difficulty in Wagstaff was quantifying the decedent’s loss, and not a failure
to prove a compensable injury, as found in this case.
Further, Plaintiff’s reliance on the cited Oklahoma case, Moyer, is misplaced. It was not a
fraud case at all. It stands for the proposition, stated in the syllabus, that: “In a cause of action for

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the wrongful closing of plaintiff’s place of business, and for his wrongful arrest, plaintiff, in the
absence of evidence showing actual damage resulting from such wrongful acts, is entitled to recover
nominal damages, and an award of nominal damages is sufficient to authorize a judgment for
exemplary or punitive damages.” See Moyer, 228 P.2d at 646. These legal principles have no
bearing on the summary judgment issues in this case.
Therefore, the Court finds that Plaintiff has failed to demonstrate an error of controlling law,
or a clear error in the analysis of his fraud claim.
Conclusion
For these reasons, the Court finds that Plaintiff has not establish a sufficient basis to
reconsider the summary judgment ruling.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reconsider the Court's Order
Granting the Defendants’ Motions for Summary Judgment (Motion for New Trial) [Doc. No. 152]
is DENIED.
IT IS SO ORDERED this 11th day of March, 2013.

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