Cooper v. Charter Commc'ns Entertainments I, LLC

• Decision Date: 23 July 2014
• Docket Number: 13–1736.,Nos. 13–1726,s. 13–1726
• Citation: 760 F.3d 103
• Parties: Bruce M. COOPER; John W. Romito; Roy L. Baker; Whitney Taylor Thompson, individually and on behalf of all other persons similarly situated, Plaintiffs, Appellants, v. CHARTER COMMUNICATIONS ENTERTAINMENTS I, LLC; Charter Communications, Inc., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

760 F.3d 103

Bruce M. COOPER; John W. Romito; Roy L. Baker; Whitney Taylor Thompson, individually and on behalf of all other persons similarly situated, Plaintiffs, Appellants,

v.CHARTER COMMUNICATIONS ENTERTAINMENTS I, LLC; Charter Communications, Inc., Defendants, Appellees.

Nos. 13–1726, 13–1736.

United States Court of Appeals,First Circuit.

July 23, 2014.

Jeffrey S. Morneau, with whom Nathan A. Olin and Connor, Morneau & Olin, LLP, were on brief, for appellants.

Robert J. Wagner, with whom Kathleen M. Guilfoyle, Brian P. Voke, Campbell Campbell Edwards & Conroy, Roman P. Wuller, and Thompson Coburn, LLP, were on brief, for appellees.

Before THOMPSON, STAHL, and KAYATTA, Circuit Judges.

KAYATTA, Circuit Judge.

In the aftermath of a substantial snowstorm, four customers sued cable provider Charter Communications Entertainment I, LLC, and its parent company, Charter Communications, Inc. (collectively, “Charter”), on behalf of themselves and a putative class of others claimed to be similarly situated. The plaintiffs contend that Charter violated contractual, statutory, and common law duties by failing to provide credits to its customers for their loss of cable, internet, and telephone service during the storm. We hold that the district court properly exercised its jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d), but erred in granting Charter's motion to dismiss. We therefore vacate in part the district court's opinion and remand for further proceedings.

I. Background

Except where otherwise noted, the facts in this opinion are taken from the plaintiffs' complaint, with all reasonable inferences drawn in the plaintiffs' favor. See Maloy v. Ballori–Lage, 744 F.3d 250, 251 (1st Cir.2014). We bear in mind, however, that in assessing jurisdictional issues, we must weigh the evidence without favoring either party. Valentin v. Hosp. Bella Vista, 254 F.3d 358, 364 (1st Cir.2001).

Plaintiffs Bruce Cooper, John Romito, Roy Baker, and Whitney Taylor Thompson are residents of Massachusetts who purchase cable television, internet, or telephone services from Charter. The district court has not yet considered any motion for class certification, so for now they are the only plaintiffs.

Beginning on October 29, 2011, Massachusetts experienced a severe snow storm that damaged trees, made travel impossible on many roads, and took down power and cable lines. During the storm, the plaintiffs did not receive services from Charter, either because they lost electrical power and therefore could not use television or internet devices, or because Charter's own equipment failed to provide service even where power was available, or due to some combination of the two.

Cooper, Romito, and Baker filed the complaint in this case in Massachusetts state court on November 22, 2011. Two weeks later, having not yet served the complaint on Charter, the plaintiffs' attorneys sent the company a demand letter seeking relief on behalf of the three original plaintiffs and others similarly situated. This letter was later incorporated into the plaintiffs' first amended and second amended complaints, the latter of which is the operative complaint here. The demand letter specified when the three customers' services were interrupted. According to the letter, for example, Cooper and Baker lost service at 6:00 pm on October 29, 2011, and did not receive it again until 3:00 pm on November 7, 2011. As to Thompson, who was added as the fourth plaintiff after the demand letter was sent, the record contains no information regarding when her service was interrupted, aside from the allegation in the amended complaint that her interruption lasted more than twenty-four consecutive hours.

A month after receiving the plaintiffs' demand, Charter sent a letter to their attorneys, informing them that Charter had issued credits to the accounts of Cooper, Baker, and Romito, which the company said fully compensated them for the time they were without service.

After the first amended complaint was served on Charter in February 2012, the company removed the case to federal court, invoking the Class Action Fairness Act. Charter then filed a motion to dismiss, asserting that the plaintiffs' claims were moot and that the complaint failed to state a claim. SeeFed.R.Civ.P. 12(b)(1), (b)(6). The district court ruled that removal was proper and granted Charter's motion to dismiss. The court found that the claims of Cooper, Baker, and Romito were moot because they had received credits covering the time they were without service. The court also found that, as to the fourth plaintiff, Thompson, the complaint failed to state a claim. This appeal followed.

II. Legal Standard

This case presents two threshold jurisdictional questions: whether the district court had subject matter jurisdiction under the Class Action Fairness Act and whether the plaintiffs' claims are moot. We review both questions de novo. See Amoche v. Guarantee Trust Life Ins. Co., 556 F.3d 41, 48 (1st Cir.2009); Anderson ex rel. Dowd v. City of Boston, 375 F.3d 71, 80 (1st Cir.2004). However, where the district court's assessment of a jurisdictional issue turns on findings of fact, we accept those findings unless they are clearly erroneous. Amoche, 556 F.3d at 48; Valentin v. Hosp. Bella Vista, 254 F.3d 358, 365 (1st Cir.2001).

As to Charter's motion to dismiss for failure to state a claim, we also review de novo. Maloy v. Ballori–Lage, 744 F.3d 250, 252 (1st Cir.2014). We ask “whether the complaint ‘state[s] a claim to relief that is plausible on its face,’ accepting the plaintiff's factual allegations and drawing all reasonable inferences in the plaintiff's favor.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “To cross the plausibility threshold, the plaintiff must ‘plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

III. Analysis

A. Jurisdiction under the Class Action Fairness Act

Charter invokes federal jurisdiction under the Class Action Fairness Act. The Act grants jurisdiction to federal courts to hear state-law class actions if there is minimal diversity of citizenship between the parties, as the parties agree there is here, and the amount in controversy exceeds five million dollars.¹28 U.S.C. § 1332(d)(2). Here, although a class has not been certified, the district court properly treated the complaint as asserting a class action, and therefore went on to consider the size of the proposed class and the potential recovery. See College Of Dental Surgeons Of Puerto Rico v. Connecticut Gen. Life Ins. Co., 585 F.3d 33, 40 (1st Cir.2009) ( “CAFA ... applies ‘to any class action before or after the entry of a class certification order by the court with respect to that action.’ ” (quoting 28 U.S.C. § 1332(d)(8))). The party asserting jurisdiction bears the burden to show with a “reasonable probability” that the amount in controversy requirement is satisfied. Amoche v. Guarantee Trust Life Co., 556 F.3d 41, 48–49 (1st Cir.2009).

The parties agree that for purposes of calculating the amount in controversy, the plaintiffs seek at least $75 for each member of the proposed class. The parties also agree that approximately 95,000 Charter customers lost power during the storm. The company provided that estimate in an affidavit, and the plaintiffs then incorporated the figure into their own complaint, characterizing it as a minimum number of affected customers. The complaint asserts that all of these customers failed to receive services from Charter, and the plaintiffs have offered no reason to exclude any of those affected from their proposed class.

With a putative class of at least 95,000 people, and possible damages of at least $75 per class member, the amount in controversy is at least $7,125,000. The district court's exercise of jurisdiction was therefore proper.

B. Mootness

Charter contends that the claims of Cooper, Baker, and Romito became moot when, after this suit was filed, they accepted credits proportional to the time they were without service.² There is no dispute that Thompson's claims remain live.

The dispute between the plaintiffs and Charter focuses on whether and when Charter must provide a credit or rebate to any subscriber whose service is interrupted. The plaintiffs say that the service outages in October and November of 2011 triggered a duty to provide credits or rebates under Mass. Gen. Laws ch. 166A, § 5( l ), and under Charter's licensing agreements. Importantly, they also claim that Charter was obligated to provide those rebates or credits to each affected customer without waiting to first receive a request from that customer. Charter rejects both contentions.

Yet, the plaintiffs have not contested that Cooper, Baker, and Romito accepted credits from Charter proportional to the time they were without service. And although the plaintiffs allude to the existence of other types of damages they might have suffered, they fail to identify any such damages, even by type or category. In short, the individual damages claims of these three putative class representatives were fully satisfied after they filed this action. Consequently, they also may not receive statutory or treble damages under the Massachusetts unfair business practices law, which makes such relief available only where a defendant has failed to offer a settlement “reasonable in relation to the injury actually suffered.” SeeMass. Gen. Laws ch. 93A, § 9(3).³

Were the three original plaintiffs seeking only monetary damages, and were Thompson not joined as a plaintiff, the foregoing chronology would present complicated issues of standing and mootness in the context of a putative class action. See, e.g., Genesis Healthcare Corp. v. Symczyk, ––– U.S. ––––, 133 S.Ct. 1523, 1529–32, 185...