Schafer v. Direct Energy Services, LLC ( 2023 )

22-2889
Schafer v. Direct Energy Services, LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 13th day of November, two thousand twenty-three.
4
5 PRESENT:
6 JOSÉ A. CABRANES,
7 ROBERT D. SACK
8 MYRNA PÉREZ,
9 Circuit Judges.
10 _____________________________________
11
12 Richard Schafer,
13
14 Plaintiff-Appellant,
15
16 James Brietfeller, William Underwood,
17
18 Plaintiffs,
19
20 v. 22-2889
21
22 Direct Energy Services, LLC,
23
24 Defendant-Appellee.
25 _____________________________________
26
27
1 FOR PLAINTIFF-APPELLANT: MICHAEL J. ASCHENBRENER (Scott A. Kamber,
2 on the brief), KamberLaw, LLC, Denver, CO.
3
4 FOR DEFENDANT-APPELLEE: DIANE S. WIZIG, (Michael D. Matthews, Jr.,
5 McDowell Hetherington LLP, Houston, TX;
6 James M. Chambers, McDowell Hetherington
7 LLP, Arlington, TX, on the brief), McDowell
8 Hetherington LLP, Houston, TX.
9
10
11 Appeal from a judgment of the United States District Court for the Western District of New
12 York (Frank P. Geraci, Jr., Judge).
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
14 DECREED that the request to certify questions of law to the New York Court of Appeals is
15 DENIED and the judgment of the district court is AFFIRMED.
16 Plaintiff-Appellant Richard Schafer (“Schafer”) requests certification pursuant to Second
17 Circuit Local Rule 27.2. In the alternative, he appeals—pursuant to 28 U.S.C. § 1291—a portion
18 of the district court’s judgment, entered on October 5, 2022, granting Defendant-Appellee Direct
19 Energy Services, LLC’s (“Direct Energy”) motion for summary judgment under Federal Rule of
20 Civil Procedure 56. We assume the parties’ familiarity with the underlying facts, procedural
21 history, and issues on appeal, to which we refer only as necessary to explain our decision.
22 BACKGROUND
23 In a separate action, Forte v. Direct Energy Services, LLC, No. 22-201, 2023 WL 38268124 (2d Cir. Jan. 25, 2023), a panel of this Court ruled in a non-precedential summary order that
25 Schafer and others’ electricity service contracts with Direct Energy “clearly and conspicuously”
26 explained that the rates for electricity services were variable, and thus complied with New York
2
1 General Business Law § 349-d(7). 1 2023 WL 382681, at *2–3. Schafer filed the instant action
2 in the Western District of New York challenging his natural gas contracts with Direct Energy on
3 the ground that the variable rates were not “clearly and conspicuously” disclosed. The district
4 court granted summary judgment in favor of Direct Energy, concluding that there was no genuine
5 issue of material fact that: (1) the contract materials for Schafer’s natural gas services clearly and
6 conspicuously disclosed the variable rates; and (2) Schafer would be unable to prove causation
7 because he failed to submit evidence that he read or reviewed the contract materials. 2
8 DISCUSSION
9 On appeal, Schafer does not challenge the district court’s judgment as to whether the
10 natural gas contract materials were clear and conspicuous. Instead, he asks us to certify to the
11 New York Court of Appeals two main questions 3: (1) “What is the proper standard under New
12 York law to determine whether the statutory prescription of a ‘clear and conspicuous’
13 identification . . . is satisfied?”; and (2) “To prove a violation of Section 394-d, which declares
14 offending contracts to be void, must a plaintiff still affirmatively demonstrate that they reviewed
15 the contract in question in order to show that they were ‘injured by reason of’ the illegal conduct?”
16 Appellant’s Br. at 3. We decline to certify Schafer’s questions.
1
Schafer intervened in an action in the Northern District of New York to pursue a claim against Direct Energy
related to his electricity contract.
2
In the Western District action, Schafer contested a natural gas contract renewal form, which was sent to him before
his original contract expired. In the Northern District action, and consequently in the appeal, Schafer does not
appear to have challenged the electricity contact renewal form. Regardless, Schafer fails to explain why the natural
gas contract renewal form is relevant if the original natural gas contract clearly and conspicuously explained the
variable rates.
3
Schafer also asks the Court to certify additional ancillary questions that depend on the answers to the two main
questions. Because we decline to certify the two main questions, discussion of the ancillary questions is
unwarranted.
3
1 “When asked to decide questions of state law, in the absence of authoritative law from the
2 state’s highest court, we must either (1) predict how the state’s highest court would resolve the
3 state law question, or, if state law is so uncertain that we can make no reasonable prediction,
4 (2) certify the question to the state’s highest court for a definitive resolution.” RSD Leasing, Inc.
5 v. Navistar Int’l Corp., 81 F.4th 153, 169 (2d Cir. 2023) (brackets, internal quotation marks, and
6 citation omitted). Here, this Court has already “predict[ed] how the [New York Court of Appeals]
7 would resolve” Schafer’s first question, see id., when it concluded that, using the standard
8 proffered by Schafer, the variable rates in Schafer’s electricity contract were clear and
9 conspicuous, Forte, 2023 WL 382681, at *2–3. Such a ruling is dispositive on the question
10 presented because the electricity contract is virtually identical to the natural gas contract. 4
11 Because this Court has already made a reasonable prediction as to how the state’s highest court
12 would rule on Schafer’s electricity contract—which is substantively identical to his natural gas
13 contract—certification is unwarranted. 5
14 Certification is also inappropriate as to Schafer’s second question because that question is
15 necessarily non-determinative of Schafer’s claim considering our refusal to certify his first
16 question. See O’Mara v. Town of Wappinger, 485 F.3d 693, 698 (2d Cir. 2007) (“[W]e may
17 certify a question to the Court of Appeals when a question of New York law is ‘determinative’ of
18 a claim before us . . . .” (citation omitted)). In other words, because Schafer’s first question has
4
The electricity and natural gas contracts only differ as to the length of the contracts and the unit measurements of
the commodities.
5
Similarly, because this Court has made a reasonable prediction as to Schafer’s electricity contract, which is
substantially identical to his natural gas contract, certification as to questions relating to the natural gas contract
renewal form is also unwarranted.
4
1 been answered and because he failed to appeal the district court’s judgment as to whether the
2 variable rates in his natural gas contract were clear and conspicuous, an essential element of his
3 claim cannot be satisfied. Similarly, his challenge to the district court’s judgment as to the issue
4 of causation is futile because even if we concluded that the district court erred, Schafer does not
5 challenge the judgment as to the “clear and conspicuous” issue. His claim therefore fails. In any
6 event, even if we conducted a de novo review of the causation issue, Schafer failed to create a
7 genuine issue of material fact as to whether he read the natural gas contract because he offered no
8 such evidence at the summary judgment stage. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
9 (1986) (“[T]here can be no genuine issue as to any material fact, since a complete failure of proof
10 concerning an essential element of the nonmoving party’s case necessarily renders all other facts
11 immaterial.” (internal quotation marks and citation omitted)).
12 * * *
13 Accordingly, we DENY the request for certification and AFFIRM the judgment of the
14 district court.
15
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk of Court
5