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Charles T. Mcnair, et al v. Synapse Group

February 14, 2011


The opinion of the court was delivered by: Linares, District Judge.



This matter comes before the Court on a motion for reconsideration filed by Plaintiffs Charles McNair, Theodore Austin, Danielle Demetriou, Ushma, and Julie Dynko ("Plaintiffs"). This Court previously held in its Opinion dated November 15, 2010 ("Opinion") that Plaintiffs failed to meet their burden of demonstrating the cohesion necessary to certify a class under Federal Rule of Civil Procedure 23(b)(2). Plaintiffs now ask the Court to reconsider this Opinion denying an injunctive relief class. The Court has considered all of the parties' submissions and decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below, Plaintiffs' motion for reconsideration is denied.


The facts of this case are more fully detailed in this Court's June 29, 2009 and November 15, 2010 Opinions. Only those facts relevant for the present motion are included here.

Plaintiffs are, were, or will be subscribers to magazines obtained through Defendant Synapse Group, Inc. ("Synapse"). Plaintiffs claim that Synapse engages in deceptive practices related to its cancellation procedure, which resulted in unwanted renewals.

Plaintiffs most recent amended complaint sought to certify classes for each of their state claims only: violation of the New Jersey Consumer Fraud Act ("CFA"); deceptive trade practices under New York's General Business Law § 349 ("GBL"); and a violation of the District of Columbia's Consumer Protection Procedures Act ("CPPA"). (Second Am. Class Action Compl. [hereinafter "Am. Compl.."] ¶ 76.) The proposed definition for these classes was as follows:

From October 23, 2000 to the date of the order certifying the class, all persons residing in New Jersey, New York, and the District of Columbia who was or will be magazine subscription customers of Synapse and will be sent in the future Defendant's "standard exterior" postcard of the advance notification of an automatic charge for an additional term or renewal of their subscription(s). Excluded from the class are Defendant, its agents and affiliates, and any government entities. (Id. at ¶ 75.) Plaintiffs also sought to certify the following proposed subclasses for each of these classes as follows:

Members of the Class for whom their postcard notification and/or billing descriptor on their credit card or bank statement provide a telephone number to an IVR that does not audibly announce how to transfer to a live operator. (Id. at ¶ 77.) Plaintiffs McNair, Demetriou, and Desai were named representatives for the proposed New Jersey Class; Plaintiff Austin was named representative of the proposed District of Columbia Class; and Plaintiff Dynko was named the representative of the proposed New York class. Plaintiffs sought certification of these classes only under Rule 23(b)(2) based on the revised claims and proposed class definitions in the Amended Complaint. Plaintiffs made clear in their briefing that they were seeking both monetary and injunctive relief on behalf of the named plaintiffs, but only injunctive relief on behalf of the proposed classes.

In its November 15, 2010 Opinion, this Court held that the class was not cohesive because "disparate factual circumstances demonstrate that there is no common issue solely related to the postcard which will remedied by the relief sought and which will benefit the entire class." Opinion at 11-12. Plaintiffs now move for reconsideration and ask that the Court vacate this Opinion and certify the previously proposed b(2) class, without a subclass.


"Reconsideration is an extraordinary remedy" and should be "granted 'very sparingly.'" See L.Civ.R. 7.1(I) cmt.6(d); see also Fellenz v. Lombard Investment Corp., Nos. 04-3993, 04-5768, 04-3992, 04-6105, 2005 WL 3104145, at *1 (D.N.J. Oct. 18, 2005). A motion for reconsideration must "set[] forth concisely the matter or controlling decisions which the party believes the Judge or Magistrate Judge has overlooked." L.Civ.R. 7.1(I). When the assertion is that the Court overlooked something, the Court must have overlooked "some dispositive factual or legal matter that was presented to it." McGovern v. City of Jersey, No. 98-5186, 2008 WL 58820, at *2 (D.N.J. Jan. 2, 2008).


Under Local Civil Rule 7.1(g), the Court will reconsider a prior order only where a different outcome is justified by: (1) intervening change in law; (2) availability of new evidence not previously available; or (3) need to correct a clear error of law or manifest injustice. N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). In this case, Plaintiffs claim that this Court's Opinion constitutes a "clear error of law" resulting in "manifest injustice" to them. Pl. Brief at 3. However, Plaintiffs do not point to any dispositive factual or legal matter which was presented to but overlooked by this Court. Rather, it appears that ...

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