United States District Court, W.D. Missouri, Western Division
ELIZABETH O'SHAUGHNESSY, MICHAEL O'SHAUGHNESSY, and RANDALL L. HENSLEY, Plaintiffs,
CYPRESS MEDIA, L.L.C., Defendant.
ORDER GRANTING SUMARY JUDGMENT
KAYS, CHIEF JUDGE
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.
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).
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).
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.
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.
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).
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).
that in mind, the Court finds the relevant, undisputed
material facts to be as follows.
The Star's home delivery subscription billing
and renewal procedures.
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.
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.
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
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
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”),  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.
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.
The Star's disclosure of its billing practices
on its invoices and renewal notices.
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.
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, ...