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Whitton v. Deffenbaugh Disposal, Inc.

United States District Court, D. Kansas

February 23, 2015

LARRY WHITTON, on behalf of himself, and all other similarly situated, Plaintiff,
DEFFENBAUGH DISPOSAL, INC., et al., Defendants.


CARLOS MURGUIA, District Judge.

On May 1, 2012, named-plaintiff Larry Whitton, on behalf of himself and all others similarly situated, brought claims against defendants Deffenbaugh Disposal, Inc. and Deffenbaugh Industries, Inc. for breach of contract, violation of the Kansas Consumer Protection Act ("KCPA"), and unjust enrichment for defendants' practice of charging two types of fees: an "environmental/fuel charge" and an "administrative fee." Plaintiff asked for certification of two classes (KCPA and breach of contract), but this court denied class certification with respect to both classes in June 2014. ( See Doc. 70.) On October 27, 2014, the court ruled on defendants' motion for summary judgment. (Doc. 96.) On October 28, 2014, the court ruled on plaintiff's motion for reconsideration. (Doc. 97.) Today, the matter before the court is defendants' Motion to Reconsider and Vacate the Court's October 28, 2014 Order. (Doc. 99.)

A comprehensive factual background of this case can be found by reading the court's orders, dated June 11, 2014 (denying plaintiff's motion to certify class), October 27, 2014 (denying defendants' motion for summary judgment), and October 28, 2014 (granting plaintiff's motion for reconsideration). (Docs. 70, 96, 97.) Rather than repeating it here, the court will instead briefly summarize its October 2014 rulings.

I. Background

The court issued two rulings within a day of each other: one denying defendants' motion for summary judgment and one granting plaintiff's motion for reconsideration. In the motion before the court, defendants do not contest the court's denial of summary judgment. Defendants instead request the court reconsider its October 28 order, granting plaintiff's motion for reconsideration. In doing so, defendants question the compatibility of the two October orders. The court will discuss those orders below.

A. Order Denying Summary Judgment

The court begins by noting that the standard for summary judgment is "no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and reasonable inferences in a light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). While the court found many genuine issues of material fact, only one needed to be present in order to deny defendants' motion.

The first genuine issue was the relationship between the "environmental" and "fuel" portions of the fees. (Doc. 96 at 3.) Throughout the briefing, the parties and record contained many contradicting references to these fees. The court concluded that summary judgment could not be granted with so many discrepancies in the terms' usage and reference points.

The second issue was defendants' consent defense. The court pointed out that defendants' argument presented plaintiff with a Hobson's choice: dispute a fee upon the first billing or waive the right to dispute the fee. The court believed that "[a] reasonable juror may find for plaintiff because his choice to wait before bringing his suit does not mean he consented to that particular charge by Deffenbaugh." ( Id. at 4.) The court also pointed out that the handwritten notations on plaintiff's contracts do not answer the question as to whether plaintiff did or did not consent to a charge, particularly any "environmental" charge (or portion of the charge). Those facts, the court determined, must be resolved by the trier of fact. See Prenalta Corp. v. Colo. Interstate Gas Co., 944 F.2d 677, 686 (10th Cir. 1991).

The last issue was the voluntary payment doctrine, which defendants argue barred plaintiff's claim. Under this doctrine, payments made voluntarily and with full knowledge of all facts cannot be recovered by the payor absent fraud, duress, or mistake. See MacGregor v. Millar, 203 P.2d 137, 139-40 (Kan. 1949). Because that doctrine is heavily fact-dependent, the court could not determine whether plaintiff made payments with or without a full knowledge of the facts. That determination was a question for a jury. Accordingly, the court denied summary judgment.

B. Order Granting Reconsideration and Class Certification

One day after denying defendants' motion for summary judgment, the court granted plaintiff's motion for reconsideration, certifying a class of plaintiffs in the process. The court discussed the propriety of a motion for reconsideration in the context of a class action suit. ( See Doc. 97 at 3-5.) The court concluded it could reconsider its June 2014 order that denied plaintiff's motion to certify class. There were two reasons for this. First, plaintiff's motion did not follow a dispositive order. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) ("An order refusing to certify, or decertifying, a class does not of its own force terminate the entire litigation because the plaintiff is free to proceed on his individual claim."). Second, and more importantly, the court noted that its conclusion is supported by multiple authorities, such as Federal Rule of Civil Procedure 23(c)(1)(C) ("An order that grants or denies class certification may be altered or amended before final judgment.") and the Tenth Circuit, see DG v. Devaughn, 594 F.3d 1188, 1201 (10th Cir. 2010).

II. Legal Standard

The decision whether to grant or deny a motion to reconsider is within the court's sound discretion. In re Baseball Bat Antitrust Litig., 75 F.Supp.2d 1189, 1192 (D. Kan. 1999) (citing Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988)) (additional citation omitted). Under Local Rule 7.3(b), there are three grounds that may justify reconsideration: (1) "an intervening change in controlling law"; (2) the "availability of new evidence"; or (3) "the need to correct clear error or prevent manifest injustice." Shinwari v. Raytheon Aircraft Co., 25 F.Supp.2d 1206, 1208 (D. Kan. 1998) (citation omitted). "[A] motion for reconsideration is ...

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