Cooper v. Charter Commc'ns, Inc.
| Decision Date | 21 May 2013 |
| Docket Number | C.A. No. 12–cv–10530–MAP. |
| Citation | 945 F.Supp.2d 233 |
| Parties | Bruce M. COOPER, John W. Romito, Roy L. Baker, and Whitney Taylor Thompson, Plaintiffs v. CHARTER COMMUNICATIONS, INC. and Charter Communications Entertainment I, LLC, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
OPINION TEXT STARTS HERE
Jeffrey S. Morneau, Nathan A. Olin, Connor Morneau & Olin, LLP, Springfield, MA, for Plaintiffs.
Kathleen M. Guilfoyle, Brian P. Voke, Campbell, Campbell, Edwards & Conroy, PC, Boston, MA, Robert J. Wagner, Roman P. Wuller, Thompson Coburn LLP, Saint Louis, MO, for Defendants.
MEMORANDUM AND ORDER RE: MOTION TO DISMISS
Plaintiffs have filed this class action lawsuit against two cable companies, seeking to recover damages for rebates not credited automatically following cable, Internet, and phone service outages caused by an unusually heavy snowstorm in October of 2011. Defendants have moved to dismiss the complaint. For the reasons discussed below, the motion will be allowed.
In weighing a motion to dismiss, the court must take the allegations in the complaint as true and draw all reasonable inferences in the plaintiffs' favor. Curran v. Cousins, 509 F.3d 36, 43 (1st Cir.2007). Beyond the complaint, facts may be considered that are contained in “documents the authenticity of which are not disputed by the parties,” including official records, documents central to plaintiffs' claim, or documents sufficiently referred to in the complaint. Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993); Clorox Co. Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir.2000). On the issue of subject matter jurisdiction, facts put forward by the defendants may also be taken into consideration to the extent that they are not challenged by the plaintiffs. Bluetarp Fin., Inc. v. Matrix Const. Co., Inc., 709 F.3d 72, 79 (1st Cir.2013). Here, both sides have submitted factual material that the court will take into account in deciding the motion to dismiss.1
Defendants Charter Communications, Inc., and Charter Communications Entertainment I, LLC, provide cable television, Internet, and telephone services to business and residential customers in Massachusetts. Before they began providing cable television services, Defendants entered into license agreements with the towns in which their consumers resided. The license agreements between the towns and Defendants set forth the terms and conditionsunder which Defendants constructed, upgraded, operated, and maintained the cable television systems in the towns. In large part, the license agreements tracked the requirements of Mass. Gen. Laws ch. 166A, §§ 1–20, & 2.2 One of the terms that had to be included in the licensing agreements described a “pro rata credit or rebate” in the event of a service interruption of twenty-four hours or more. Ch. 166A, § 5( l ).
Defendants distributed their cable television signal throughout the Commonwealth out of a so-called “headend” facility in Oxford, Massachusetts. From the headend facility, the signal traveled over a network of six hubs using fiber optic cable; those six hubs distributed the signal to 972 fiber optic nodes, which in turn distributed the signals to homes and businesses within Defendants' service area. Each node served about 500 customer locations.
Once a customer signed a contract for services with Defendants,3 the cable television signal reached the customer via a service drop line, which ran into the home or business. The system used for cable television service also carried Internet and telephone service to customers who opted for those additional services.
Plaintiffs do not dispute that, generally, when a customer loses service due to lack of power or a fallen service drop line, “[Defendants do] not possess the automated means to track when a customer loses and recovers service access, or measure the intervening time period.” 4 (Second Aff. Thomas P. Cohan, Dkt. No. 41, Ex. 1 at 3 ¶ 9.)
On October 29, 2011, an unusually early, very heavy snowstorm hit western Massachusetts, dumping several inches of wet snow and causing extensive tree damage and downed power and cable lines. Many thousands of homes and businesses lost power, cable television, Internet, and phone service, some for several weeks.5 A portion of Defendants' customers lost power and cable service; others lost only power, but were unable to access their cable service because of their lack of electricity. The damage and outages caused by the snowstorm were the topic of extensive reports by the local and regional news media.
It appears undisputed that Defendants' statewide cable system, from the headend facility through the hubs and nodes, remained up and running without interruption through the use of backup generators throughout the storm and its aftermath. ( Id. at 2 ¶ 4.) Nevertheless, many of Defendants' customers lost access to their cable, Internet, and/or phone services because their service drop lines were downed by fallen tree limbs. Others maintained their access to Defendants' services but were unable to use them because of a lack of power, also due to fallen tree limbs.
Around this time, the Massachusetts Office of Consumer Affairs and Business Regulations (“OCABR”) released a notice entitled “Cable TV Consumer Bulletin: Severe Storms.” (Dkt. No. 36, Ex. 2.) In addition to warning consumers not to touch fallen wires, the bulletin informed consumers that they did not have to notify their cable company if they were without service when a severe storm was widely publicized and the cable company had deployed extra crews to restore service (which, in the case of the October 2011 storm, Defendants had). The bulletin also advised consumers of their rights to a pro rata credit or rebate for any service interruption lasting twenty-four hours or more, including interruptions that only affected one tier of service.6
Defendants' policy for applying a credit for interrupted service required customers to call Defendants and notify them of the lost service and its duration.7 This policy was included in the customer contracts signed at the initial provision of service, as well as in the yearly customer notifications and the monthly billing statements. (Aff. Cohan, Dkt. No. 41, Ex. 1 at 4–7 ¶¶ 14–23.)
On December 9, 2011, Plaintiffs Bruce M. Cooper, John W. Romito, and Roy L. Baker served on Defendants a chapter 93A demand letter, pursuant to the Massachusetts Consumer Protection Act, notifying Defendants of their demand for a credit or rebate for the service interruption caused by the snowstorm. (Dkt. No. 36, Ex. 3.) Upon receiving the demand letter, Defendants adjusted the accounts of the three named Plaintiffs to credit them for the service outages they experienced.8 On September 27, 2012, Plaintiffs filed a Second Amended Complaint, adding Whitney Taylor Thompson as a fourth named Plaintiff. Her account with Defendants has not been, as of yet, credited for the service interruption experienced after the storm.
On February 21, 2012, Plaintiffs filed suit in state court, individually and on behalf of all other persons similarly situated, against Defendants for failing to credit customers automatically for the service outages suffered after the snowstorm—that is, to credit them rebates without the necessity of any request.
After removing the case to this court, Defendants filed a motion to dismiss based on lack of case or controversy and on failure to state a claim. Following oral argument on September 26, 2012, the court permitted supplemental briefing and the filing of a second amended complaint, adding Whitney Taylor Thompson as a named plaintiff. The amended complaint formally articulated theories first offered by Plaintiffs in their opposition to Defendant's motion to dismiss. (Pls.' Second Am. Compl., Dkt. No. 36.) Because the parties have adequately briefed the issues, further oral argument is not necessary.
Where a defendant files a motion to dismiss both for lack of subject matter jurisdiction as well as for failure to state a claim, the First Circuit has counseled that the issue of subject matter jurisdiction be tackled first. Deniz v. Municipality of Guaynabo, 285 F.3d 142, 149–50 (1st Cir.2002). That will be the approach here.
A federal court has the constitutional authority to hear a case that presents “a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (internal quotations and citations omitted). Federal courts are not “empowered to decide moot questions or abstract propositions.” Id. Even when a live controversy exists at the time of filing, subsequent developments may render the case moot. Barr v. Galvin, 626 F.3d 99, 104 (1st Cir.2010). A case may also be moot where the court cannot provide meaningful or effectual relief to the aggrieved party. Am. Civil Liberties Union of Mass. v. U.S. Conf. of Catholic Bishops, 705 F.3d 44, 52–3 (1st Cir.2013) (hereinafter ACLU ). “The burden of establishing mootness rests with the party invoking the doctrine,” here Defendants. Id. at 52.
A plaintiff may escape dismissal for mootness where the case presents issues that—though moot—are “capable of repetition, yet evading review.” Barr, 626 F.3d at 105. To employ this escape hatch prior to class certification, the plaintiff must demonstrate a probability that “the same controversy, involving the same parties, will reoccur.” Cruz v. Farquharson, 252 F.3d 530, 534 (1st Cir.2001). Moreover, the First Circuit has described this exception as applying only in extraordinary circumstances involving a challenged action that was too short in duration to permit a trial court enough time to...
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