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Bank v. Independence Energy Group LLC

United States District Court, E.D. New York

May 1, 2013

TODD C. BANK, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
v.
INDEPENDENCE ENERGY GROUP LLC, and INDEPENDENCE ENERGY ALLIANCE LLC, Defendants

For Todd C. Bank, individually and on behalf of all others similarly situated, Plaintiff: Todd C. Bank, Law Office of Todd C. Bank, Kew Gardens, NY.

For Independence Energy Group LLC, Independence Energy Alliance LLC, Defendants: Aurora Francesca Parrilla, Robert D. Towey, LEAD ATTORNEYS, Lowenstein Sandler PC, Roseland, NJ.

OPINION

Page 322

MEMORANDUM AND ORDER

HON. WILLIAM F. KUNTZ, II, United States District Judge.

Todd C. Bank (" Plaintiff" ) initiated this action as a class action on his own behalf and on behalf of all persons to whose residential telephone lines Independence Energy Group LLC and/or Independence Energy Alliance LLC (" Defendants" ) placed one or more telephone calls using an artificial or prerecorded voice to advertise Defendants' commercial goods or services (the " Class" ) within the four years preceding initiation of this lawsuit (the " Class Period," from March 19, 2008 to March 19, 2012). Plaintiff's claims arose under the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(B), and its accompanying rules and regulations, 47 C.F.R. § 64.1200(a)(2) (collectively referred to herein as " TCPA" unless otherwise indicated). On March 12, 2013, this Court dismissed Plaintiff's claims for lack of subject matter jurisdiction. Plaintiff now moves for reconsideration pursuant to Rules 60(b)(1) and 60(b)(6) of the Federal Rules of Civil Procedure. Familiarity with the facts underlying the case and the Court's order dismissing the case is assumed. For the reasons discussed below, Plaintiff's motion is denied.

I. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 60, a party may move for reconsideration of an order on the basis of " mistake, inadvertence, surprise, or excusable neglect," or " for any other reason justifying relief from the operation of the judgment. Fed.R.Civ.P. 60(b)(1), (6).[1] " A motion under Rule 60(b) 'cannot serve as an

Page 323

attempt to relitigate the merits' of a prior decision." Moreno-Ortiz v. Ashcroft, No. 04-CV-1956, 2007 WL 1026378, at *1 (E.D.N.Y. Mar. 30, 2007) (Garaufis, J.) (quoting Fleming v. New York Univ., 865 F.2d 478, 484 (2d Cir. 1989)). Rather, motions for reconsideration of a final judgment are " generally not favored." Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004) (internal citation omitted). Indeed, the standard of review on a motion for reconsideration " is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York governs motions for reconsideration and directs the moving party to submit " a memorandum setting forth concisely the matters or controlling decisions which counsel believes the Court has overlooked." Local R. 6.3; see also Eisemann v. Greene, 204 F.3d 393, 395 n.2 (2d Cir. 2000) (" To be entitled to reargument, a party must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion." ).

II. DISCUSSION

As this Court previously noted in its Order dismissing Plaintiff's action for lack of subject matter jurisdiction, " [t]he Second Circuit has . . . unequivocally held that § 901(b) of New York Civil Practice Law and Rules (" Section 901(b)" ) bars TCPA class actions in federal court." Bank v. Indep. Energy Grp. LLC, 12-cv-1369, (E.D.N.Y. Mar. 12, 2013) (Kuntz, J.) (Dkt No. 16) (citing Holster III v. Gatco, Inc., 618 F.3d 214, 217-18 (2d Cir. 2010) cert. denied, 131 S.Ct. 2151, 179 L.Ed.2d 952 (2011)). Contrary to Plaintiff's argument, discussed infra, this assertion remains good law and Plaintiff's class action is barred from proceeding in this Court.

Plaintiff argues the Supreme Court's holding in Mims v. Arrow Fin. Servs., LLC, 132 S.Ct. 740, 181 L.Ed.2d 881 (2012) abrogates the Second Circuit case law holding that TCPA cases are subject to certain state law restrictions, including Section 901(b). Pl.'s Br. at 6-17; Pl.'s Rep. at 2-7. In support of this argument, Plaintiff refers to the Mims case itself and to a litany of mostly-out-of-Circuit district court opinions, which have adopted his proposed interpretation of Mims . The Court will address each in turn.

A. Mims Does Not Abrogate the Second Circuit Holding that TCPA Cases Are Subject to State-law Restrictions, ...


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