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O'Shaughnessy v. Cypress Media, L.L.C.

United States District Court, W.D. Missouri, Western Division

September 22, 2016

ELIZABETH O'SHAUGHNESSY, MICHAEL O'SHAUGHNESSY, and RANDALL L. HENSLEY, Plaintiffs,
v.
CYPRESS MEDIA, L.L.C., Defendant.

          ORDER GRANTING SUMARY JUDGMENT

          GREG KAYS, CHIEF JUDGE

         This lawsuit arises from Plaintiffs' allegations that Defendant Cypress Media, L.L.C. (“Cypress”) unlawfully “double-billed” them for newspaper subscriptions. Now before the Court is Cypress's Motion for Summary Judgment (Doc. 130). For the following reasons, the motion is GRANTED.

         Summary Judgment Standard

         A moving party is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of explaining the basis for its motion, and it must identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). If the movant does so, then the nonmovant must submit evidence demonstrating that there is a genuine issue for trial. Id. The court views any factual disputes in the light most favorable to the nonmoving party. Id. Decisions concerning credibility determinations, how to weigh the evidence, and what inferences to draw from the evidence, are decisions reserved for the jury, not the judge. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

         When the burden shifts to the nonmoving party, it “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Nor can the nonmoving party “create sham issues of fact in an effort to defeat summary judgment.” RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 402 (8th Cir. 1995) (citation omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557 U.S 557, 585 (2009).

         Undisputed Material Facts

         The Court has limited the facts presented here to those that are not in dispute and relevant to this motion. The Court has also excluded legal conclusions, argument presented as fact, and proposed facts that are not properly supported by admissible evidence. See Fed. R. Civ. P. 56(c); L.R. 56.1(a). The Court has included reasonable inferences from material facts not in dispute, and proposed facts the opposing party has not controverted properly.

         Plaintiffs have failed to controvert properly most of Cypress's proposed facts. For example, Cypress's second proposed fact describes The Star's procedures for crediting a customer's account, and it cites an affidavit from The Star's Chief Financial Officer for support. Plaintiff attempts to controvert this fact by citing affidavits from two Plaintiffs, neither of whom ever worked at The Star or have any personal knowledge of how The Star's accounting procedures. Hence, these affidavits violate the Federal Rules' requirement that affidavits opposing a fact must be based on personal knowledge. Fed.R.Civ.P. 56(c)(4). As a result, this fact is undisputed for summary judgment purposes. Fed.R.Civ.P. 56(e)(2).

         Plaintiffs also argue many of Cypress's proposed facts should be stricken because they are supported by documents produced after the close of discovery. See, e.g., Pls.' Resp. to SUF 21. Plaintiffs raised this argument in a separate motion to strike (Doc. 138) which the Court considered and denied. See Order Granting in Part Mot. for Sanctions (Doc. 157) (finding Cypress late-disclosed many documents during discovery, denying Plaintiffs' request to strike facts based on these documents, and instead ordering monetary sanctions).

         Finally, Plaintiffs cannot controvert Cypress's proposed facts established via documents by stating, “The documents speak for themselves.” See Kings Pro'l Basketball Club, Inc. v. Green, 597 F.Supp. 366, 369 (W.D. Mo. 1984) (holding such statements do not set forth specific facts showing there is a genuine issue for trial). The Court treats these improperly controverted facts as undisputed. Fed.R.Civ.P. 56(e)(2).

         With that in mind, the Court finds the relevant, undisputed material facts to be as follows.

         A. The Star's home delivery subscription billing and renewal procedures.

         Defendant Cypress owns a newspaper called The Kansas City Star (“The Star”). A home delivery subscription to The Star begins with a subscriber making an initial payment. As with most publications, subscribers to The Star pay in advance as opposed to paying in arrears.

         After a subscriber makes the initial payment, The Star sets up an internal account in the subscriber's name. This internal account tracks the amount of the payment and establishes an estimated “pays to” or “paid-through” date for the subscription based on the amount of the payment and the newspapers the subscriber is expected to receive through that paid-through date. Twenty to thirty days before a subscriber's paid-through date is reached, The Star sends the subscriber a subscription renewal invoice (“Subscription Invoice”) that offers various payment options for differing amounts and pay periods to extend the subscription.

         When the subscriber makes a payment, The Star extends the estimated paid-through date. If a subscriber does not pay to continue his or her subscription before the paid-through date arrives, The Star continues to deliver newspapers for up to 89 days during a “grace period” before terminating the subscription. If the subscriber pays during the grace period, the payment is applied first to the newspapers that were delivered during the period and then to extend the paid-through date forward continuing the subscription. A subscription continues until the subscriber either instructs The Star to terminate it, or the subscriber fails to make a payment and the grace period expires, at which point The Star terminates the subscription.

         In 2009, The Star began charging an additional amount, over a subscriber's regular subscription price, for “premium edition” (“Premium Edition”) newspapers. Premium Editions (which for purposes of this lawsuit are synonymous with “Special Editions, ” “Frequency Days, ” and “Bonus Days”) contain a separate section that includes additional content. As a result, Premium Editions are larger and cost more to produce and distribute. Examples of Premium Editions include a Thanksgiving edition, a photo edition, a summer travel guide, and the Major League Baseball All-Star Game edition published when the Kansas City Royals hosted the event in 2012.

         Each time The Star delivers a Premium Edition newspaper it reduces the subscriber's internal account by the cost for that paper, which shortens the estimated paid-through date and correspondingly moves up the begin date of the next payment period, that is, the renewal date or the date the next payment is due. When The Star sends the subscriber a subscription renewal invoice (“Subscription Invoice”), [1] it lists the paid-through date on the invoice as a “due date.” The Subscription Invoice does not state that the due date is an estimated date calculated by the newspaper.

         This billing practice of deducting the cost of Premium Editions by shortening the subscriber's due date is what gives rise to Plaintiffs' allegation that Cypress unlawfully shortens its subscribers' subscription period and then “double-billed” subscribers when they renew.

         B. The Star's disclosure of its billing practices on its invoices and renewal notices.

         The Subscription Invoices The Star sends to subscribers consists of one sheet of paper with information printed on the front and back. Much of the information on these invoices is printed from a template, and Cypress used slightly different templates to create the Subscription Invoices sent between January 1, 2010, and the present.

         On the upper right-hand corner of the front side of the Subscription Invoice is a heading titled “Subscription Invoice” or “Subscription Renewal.” The rest of the front page consists of headings for “Account Summary, ” “Subscription Payment Options, ” and “Convenient Payment Options” with blank spaces underneath which The Star fills in with subscriber-specific information, such as the subscriber's name, ...


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