United States District Court, E.D. Pennsylvania
TEH SHOU KAO, and T S KAO, INC., on behalf of themselves and all others similarly situated, Plaintiffs,
CARDCONNECT CORP., Defendant. TECH LOUNGE SP, LLC, and THE LAW OFFICE OF KEVIN ADAMS, PLLC, on behalf of themselves and all others similarly situated, Plaintiffs,
CARDCONNECT CORP., Defendant.
J. PAPPERT, J.
are family-owned and operated small businesses: T S Kao,
Inc., is a Chinese restaurant in Michigan run by Teh Shou Kao
and his wife; Tech Lounge SP, LLC, is a video game lounge and
coffee bar in Wisconsin owned by a husband and wife; and The
Law Office of Kevin Adams, PLLC, is a firm in Michigan
staffed by a husband, wife and their daughters. Plaintiffs
used CardConnect, a merchant services provider, to process
their debit and credit card payments. After CardConnect
allegedly charged unauthorized rates and fees, Plaintiffs
filed class action lawsuits.
case was previously assigned to Judge Ditter, who determined
that there was no express binding contract between the
parties. Although the parties agreed that there was an
implied contract, they disputed its terms. Judge Ditter
directed the parties to take discovery on that issue and then
submit briefs on their respective proposed terms. After
reviewing the parties' extensive submissions and
responses thereto, Judge Ditter agreed with the Plaintiffs
that a service contract between the parties dictated the
terms of the implied agreement. CardConnect seeks
reconsideration of Judge Ditter's findings or, in the
alternative, certification for interlocutory review. For the
reasons set forth below, the Court denies CardConnect's
Motion for Reconsideration as well as its request for
certification for interlocutory review.
Ditter discussed the facts of this case in a prior
memorandum. See (Order, ECF No. 68). Kao and T S Kao
filed their four-count class action Complaint against
CardConnect on November 1, 2016. See (Compl., ECF
No. 1). In Counts One and Two, they alleged that no binding
contract existed between the parties and, as a result,
CardConnect was unjustly enriched. See (id.
at ¶¶ 79-89). In Counts Three and Four, Plaintiffs
pled an alternative theory of liability: if a contract
existed, then CardConnect breached it and the implied
covenant of good faith and fair dealing, and certain contract
terms were invalid. See (id. at
parties filed a joint status report on September 22, 2017.
(Status Report, ECF No. 40.) In it, they disagreed about the
discovery process with respect to class certification.
Plaintiffs proposed “proceeding with class discovery,
followed by a motion for class certification, and then
dispositive motion practice.” (Id. at 4.)
CardConnect, however, proposed to narrow the issues first.
(Id. at 2.) Specifically:
Defendant believes that the Court envisioned the matter
proceeding in a phased approach starting with discovery
related to the named Plaintiffs, the parties agreeing to
Stipulated Facts to narrow the issues in dispute and identify
the legal theories that the Plaintiffs seek to pursue on a
class basis . . . [T]he discovery produced to date should
enable the Plaintiffs to determine whether they will pursue
their claims that there is no enforceable written contract
between the parties (Count I) and that they are entitled to
recovery under an unjust enrichment theory (Count Two), or
that there is an enforceable contract between the parties,
but CardConnect breached an implied covenant of good faith
and fair dealing (Count Three), and that certain contractual
terms are unconscionable (Count Four).
(Id. at 2-3.) Also in their joint status report the
parties requested consolidation with Tech Lounge SP, LLC,
and The Law Office of Kevin Adams, PLLC, v. CardConnect
Corp., No. 17-4014 (E.D. Pa. Sept. 7, 2017), because
the plaintiffs there had filed a class action Complaint
against CardConnect on September 7, 2017, alleging the same
four counts as in Kao. (Id. at 2.); see
Tech Lounge SP, LLC, and The Law Office of Kevin
Adams, PLLC, v. CardConnect Corp., No. 17-4014 (E.D.
Pa. Sept. 7, 2017), (Compl. ¶¶ 90-126, ECF No. 1).
The cases were consolidated on September 26, 2017. See
Kao and T S Kao, Inc., v. CardConnect Corp.,
No. 16-5707 (E.D. Pa. Sept. 26, 2016), (Order, ECF No. 41).
written record exists of Judge Ditter's ruling with
respect to the discovery dispute; however, on October 10,
2017, CardConnect filed a memorandum arguing that there was a
binding express contract between the parties, and if not,
there was an implied contract. See (Def.'s Mem.,
ECF No. 44). In response, Plaintiffs asserted that there was
no binding express contract but conceded that there was an
implied contract. See (Pls.' Ans., ECF No. 45).
At some point thereafter during a telephone conference, Judge
Ditter determined there was no express binding contract
between the parties.Neither side sought reconsideration of this
November 2017 to January 2018, the parties unsuccessfully
attempted to stipulate to the terms of the implied contract.
See (ECF Nos. 47, 51-52, 55). Consequently, Judge
Ditter ordered the parties to conduct discovery on that
issue. See (Stip. Sched. Order, ECF No. 58). On
March 26, 2018, the parties filed memoranda on their
respective proposed implied contract terms. See (ECF
Nos. 60-61). Plaintiffs argued that “[t]he Court should
hold that the implied contract terms required CardConnect to
process Plaintiffs' payments in accordance with the
Service Fee Schedule.” (Pls.' Mem. at 1, ECF No.
60.) CardConnect, however, urged Judge Ditter to consider the
Service Fee Schedule among other “communications,
correspondence, and the parties' own course of dealings
and course of performance.” (Def.'s Mem. at 2, ECF
No. 61.) In addition to the parties' memoranda and
numerous exhibits, they also filed responses. See
(ECF Nos. 65-67).
September 26, 2018, Judge Ditter ruled in favor of the
Plaintiffs, finding that “CardConnect agreed to provide
its services and rates set forth in each Plaintiff's
service contract and is limited to those terms absent a
mutual modification of the implied contract.” (Order,
ECF No. 69.) On October 10, 2018, the case was reassigned
from Judge Ditter to this Court. See (ECF No. 70).
That same day, CardConnect moved for reconsideration or, in
the alternative, certification for interlocutory review of
Judge Ditter's September 26 Order. (Mot. Recons., ECF No.
motion for reconsideration should be granted
“sparingly” and should not be used to
“rehash arguments which have already been briefed by
the parties and considered and decided by the [c]ourt.”
PBI Performance Prods., Inc. v. NorFab Corp., 514
F.Supp.2d 732, 744 (E.D. Pa. 2007) (citation omitted). It
should not give a party a “second bite at the
apple.” Bhatnagar v. Surrendra Overseas Ltd.,
52 F.3d 1220, 1231 (3d Cir. 1995). “A motion for
reconsideration is not properly grounded on a request that a
court reconsider repetitive arguments that have already been
fully examined by the court . . . .” Vaidya v.
Xerox Corp., No. 97-547, 1997 WL 732464, at *4 (E.D. Pa.
Nov. 25, 1997). A party seeking reconsideration must show
“(1) an intervening change in the controlling law; (2)
the availability of new evidence that was not available when
the court granted the motion . . . or (3) the need to correct
a clear error of law or fact or to prevent manifest
injustice.” Max's Seafood Cafe ex rel. Lou-Ann,
Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
Thus, a motion for reconsideration may address “only
factual and legal matters that the Court may have
overlooked” and may not “ask the [c]ourt to
rethink what it had already thought through-rightly or
wrongly.” Glendon Energy Co. v. Borough of
Glendon, 836 F.Supp. 1109, 1122 (E.D. Pa. 1993)
timely filed its Motion pursuant to Local Rule 7.1(g),
arguing that the Court erred by failing to apply the law
governing implied contracts and by failing to cite to a
single legal authority. (Mot. Recons. at 2.) CardConnect also
asserts that the Court committed a clear error of law when it
“circumvented the role of the jury and decided the
central issue by weighing evidence and deciding disputed
issues of fact.” (Id. at 1.) As a result,
CardConnect contends that the Court should reconsider Judge
Ditter's September 26 Order to prevent manifest
injustice. Plaintiff, however, argues that “Defendant
clearly does not agree with [Judge Ditter's] ruling . . .