Southern New England Telephone Co. v. Global Naps Inc. , 390 F. App'x 44 ( 2010 )

08-4518-cv
S. New England Tel. Co. v. Global NAPs Inc., et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY
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. W HEN CITING A SUMMARY ORDER
IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUMM ARY
ORDER M UST 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, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
3 on the 25th day of August, two thousand and ten.
4
5 PRESENT:
6
7 ROSEMARY S. POOLER,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________________
12
13 SOUTHERN NEW ENGLAND TELEPHONE CO.,
14
15 Plaintiff-Counter-Defendant-Appellee,
16
17 v. (08-4518-cv)
18
19 GLOBAL NAPS INC.,
20
21 Defendant-Counter-Claimant-Appellant,
22
23 FERROUS MINER HOLDINGS, LTD., GLOBAL
24 NAPS NETWORKS, INC., GLOBAL NAPS NEW
25 HAMPSHIRE, INC., GLOBAL NAPS REALTY, INC.,
26
27 Defendants-Appellants.
28 ______________________________________________
29
30 FOR DEFENDANTS-APPELLANTS: JOEL DAVIDOW , Kile Goekjian Reed & McManus,
1
1 PLLC, Washington, D.C.; William J. Rooney, Jr.,
2 Jeffrey C. Melick, Global NAPs Inc., Norwood,
3 Massachusetts.
4
5 FOR PLAINTIFF-APPELLEE: HANS J. GERMANN , Christian F. Binnig, Mayer
6 Brown LLP, Chicago, IL; Scott A. Chesin, Mayer
7 Brown LLP, New York, New York; Timothy P.
8 Jensen, Hinckley, Allen & Snyder LLP, Hartford,
9 Connecticut.
10 Appeal from a judgment of the United States District Court for the District of Connecticut
11 (Janet C. Hall, District Judge).
12 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED
13 that the judgment of the district court be AFFIRMED.
14 Defendant-Appellant Global NAPs Inc. (“Global”) appeals from various judgments and
15 orders of the United States District Court for the District of Connecticut (Janet C. Hall, J.) rendered
16 against it in its dispute with Plaintiff-Appellee Southern New England Telephone Co. (“SNET”).
17 In an opinion filed contemporaneously with this order, we adjudicate the bulk of Global’s claims.
18 See S. New England Tel. Co. v. Global NAPs Inc., –F.3d–, No. 08-4518-cv (2d Cir. ___ __, 2010).
19 This order decides only Global’s appeal of the district court’s March 26, 2007, ruling granting in
20 part SNET’s motion for summary judgment on the merits of Count I of its complaint, which
21 involved the claim that Global ordered certain telecommunications equipment from SNET pursuant
22 to SNET’s federal tariff and did not pay the applicable tariffed rate. See S. New England Tel. Co.
23 v. Global NAPs, Inc., 482 F. Supp. 2d 216 (D. Conn. 2007). We assume the parties’ familiarity with
24 the underlying facts and procedural history of the case and with the issues presented for review.
25 “We review an award of summary judgment de novo, and will uphold the judgment if the
26 evidence, viewed in the light most favorable to the party against whom [the judgment] is entered,
2
1 demonstrates that there are no genuine issues of material fact and that the judgment is warranted as
2 a matter of law.” Global Network Commc’ns, Inc. v. City of N.Y., 562 F.3d 145, 150 (2d Cir. 2009).
3 “Only disputes over facts that might affect the outcome of the suit under the governing law will
4 properly preclude the entry of summary judgment, and the mere existence of factual issues — where
5 those issues are not material to the claims before the court — will not suffice to defeat a motion for
6 summary judgment.” Demery v. Extebank Deferred Compensation Plan (B), 216 F.3d 283, 286
7 (2d Cir. 2000) (internal quotation marks, citation, and alteration omitted).
8 Though it challenges the district court’s award of summary judgment, Global devotes
9 precious little space in its opening brief to the complex issues surrounding this dispute, often simply
10 referring summarily to an argument in one sentence when the issue in question was the subject of
11 substantial and detailed litigation before the district court. We note that the parties have also not
12 seen fit to include in the appendices filed with this Court their Local Rule 56(a)1 statements or other
13 parts of the record relevant to the summary judgment motions. Cf. Fed. R. App. P. 30(a)(1)(D) (an
14 appendix should include, inter alia, “parts of the record to which the parties wish to direct the
15 court’s attention”). Under most circumstances we consider arguments insufficiently raised in an
16 appellant’s initial brief to be waived on appeal, and a party’s mere reference to an argument
17 presented fully only to the district court ordinarily does not suffice to present the argument for our
18 review. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998); see also Fed. R. App. P.
19 28(a)(9). Arguments raised for the first time in a reply brief are, of course, also waived. Sam’s
20 Club, 145 F.3d at 117.
21 Even on their merits, moreover, Global’s arguments are unavailing. The district court
22 granted SNET’s motion for summary judgment with respect to twenty-one special access DS3
3
1 circuits. These circuits may be grouped based on their use: fifteen DS3 facilities transported Global
2 “Foreign Exchange” (“FX”) traffic, and six DS3s transported so-called “Voice over Internet Traffic”
3 between New Haven and Hartford, Connecticut. Global contends that it was not obliged to provide
4 seven of the circuits in the first category because, it says, these circuits transported traffic within the
5 New Haven local calling area and thus did not fall within § 5.4.6 of the Interconnection Trunking
6 Requirements Appendix of the parties’ Interconnection Agreement (“§ 5.4.6 ”).1 Second, Global
7 contends there were questions of fact precluding summary judgment regarding whether any of the
8 services it procured from SNET were covered by SNET’s tariff. We conclude, for substantially the
9 reasons stated by the district court in its thorough and well-reasoned opinion, that no material issues
10 of fact were in dispute and that summary judgment in SNET’s favor was appropriate. Specifically,
11 we agree with the district court that:
12 • The circuits provisioned by SNET were “Special Access Service” as provided by
13 SNET’s tariff, because the circuits in question “provide[d] a channel, or transmission
14 path, to connect two or more customer premises,” even though the circuits may not
15 have physically terminated at a Global “premises.” SNET Local Rule 56(a)(1)
16 Statement ¶ 92, Doc. 283 (12/10/06) (quoting SNET Tariff F.C.C. No. 39 § 7.1).
17
18 • Global submitted Access Service Requests for the circuits in question, and whatever
19 Global’s subjective intent might have been in doing so was irrelevant to whether the
20 services procured were tariffed services.
21
22 • Section 5.4.6 required that Global be “solely responsible” for transporting its foreign
23 exchange traffic “between its foreign exchange . . . customer and [the] geographic
24 area” corresponding to the NXX Code assigned to that customer. The intra-New
25 Haven DS3s carried FX traffic, and Global was responsible for transporting that
26 traffic “between” its customers and locations within the New Haven calling area. §
27 5.4.6. Global’s interpretation of § 5.4.6 would contravene the contract’s clear
1
§ 5.4.6 provides that “[i]f either Party uses its NXX Code to provide foreign exchange
service to its customers outside of the geographic area assigned to such code, that Party shall be
solely responsible to transport traffic between its foreign exchange service customer and such
code’s geographic area.” SNET Local Rule 56(a)(1) Statement ¶ 9, Doc. 283 (12/10/06).
4
1 language that Global was “solely” responsible for such traffic, and none of the
2 evidence Global attempted to proffer raised a genuine question of fact regarding this
3 unambiguous language. Cf. Law Debenture Trust Co. of N.Y. v. Maverick Tube
4 Corp., 595 F.3d 458, 467-68 (2d Cir. 2010) (under New York contract law, if
5 contract language is unambiguous when the entire agreement is read in context, the
6 agreement must be interpreted according to its terms without extrinsic evidence, and
7 ambiguity does not exist merely because parties proffer differing interpretations in
8 litigation).
9 Having conducted an independent and de novo review of the record, we conclude that the
10 district court properly entered partial summary judgment in SNET’s favor on Count I of SNET’s
11 complaint against Global. We have considered all appellants’ remaining arguments and we
12 conclude that they are without merit. For the foregoing reasons, the award of partial summary
13 judgment of the district court in favor of SNET is AFFIRMED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
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