Beck v. Test Masters Educational Services, Inc. ( 2010 )

  •                     UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
    JARROD BECK, et al.,              :
                Plaintiffs,           :
           v.                         : Civil Action No. 04-1391 (JR)
    SERVICES, INC.,                   :
                Defendant.            :
                This completely unmeritorious case is a spinoff from
    protracted litigation conducted elsewhere between Robin Singh
    Educational Service, Inc. and Test Masters Educational Services,
    Inc.    It began as a dispute over the right to an Internet domain
    name,, and then metastasized.      The first case
    ended in the Fifth Circuit, with an order invalidating Singh’s
    claims to “Test Masters” as a trademark and allowing Test Masters
    to retain the domain name.    Refusing to accept that outcome,
    Singh continued the struggle to the point where a district judge
    in Texas enjoined him from pursuing registration of the mark,
    interfering with Test Masters’ registration of the mark, and
    harassing Test Masters and its employees.    At least two other
    cases were then filed, this being one of them.      This suit has
    nominally individual plaintiffs, but they might as well be straw
    parties: the defendant asserts that the litigation is sponsored
    and controlled by Singh – in effect, that this is a proxy war -
    and the assertion is nowhere denied.    The suit was first filed in
    Superior Court for the District of Columbia in 2004, removed to
    this court by Test Masters, transferred to the Southern District
    of Texas by order of the Multidistrict Litigation Panel in 2005,
    and then returned to this district by order of the MDL judge in
    Texas in 2009 – accompanied by a fully briefed motion for summary
    judgment that has never been spread on the public record of this
    court because everything was filed under seal in Texas.
              The sponsored plaintiffs - Beck, Galloway, and Reddy -
    claim that the conduct of Test Masters’ includes acts of fraud
    and negligent misrepresentation, and that it violated the D.C.
    Consumer Protection Procedures Act (“CPPA”).
              In 2003, each plaintiff was attending college or
    working in the D.C. metropolitan area, and each plaintiff was
    planning to attend law school the following year.    To improve his
    or her score on the LSAT - the standardized test that most law
    schools consider heavily in making admissions decisions - each
    plaintiff planned to take a preparation course.    All three
    plaintiffs say that they had decided to take Singh’s course,
    basing their decisions upon the company’s national reputation and
    upon glowing reviews of the course from friends and
    acquaintances.   All allege that they were duped into taking the
    “wrong” course – the Test Masters course – by the    omissions and
    misrepresentations of Test Masters.    They allege that Test
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    Masters had a duty to correct their mistaken beliefs that they
    were registering for and attending Singh’s course but failed to
    do so; that the Test Masters website falsely stated that it had
    been offering LSAT courses since 1991; and that Test Masters
    falsely promised an LSAT course in College Park, Maryland, in
    August 2003.
              Test Masters moves for summary judgment on the grounds
    inter alia that plaintiffs have not established and cannot
    establish damages or causation, and that in any case their claims
    for damages are merely speculative.    Plaintiffs resist summary
    judgment, citing Fed. R. Civ. P. 56(f) and demanding wide-ranging
    discovery.   Broad discovery was permitted in the earlier cases,
    but plaintiffs insist that they need responses to further
    discovery requests made in this one, requests designed to
    establish that Test Masters’ intent was to deceive, that the Test
    Masters product was inferior, and that Singh’s company was better
    regarded than Test Masters.
              Whatever the facts that bear upon those contested
    issues, none of them is material to the causation and damages
    issues that are dispositive here.   No further discovery has been
    sought on causation and damages, which are of course for
    plaintiffs to prove with facts within their own provenance.
    Plaintiff has failed to demonstrate the existence of a genuine
    issue of material fact as to damages and has presented only the
                                   - 3 -
    most speculative concept of causation.   Test Masters is
    accordingly entitled to summary judgment.1
                Plaintiffs allege that they were misled into paying for
    Test Masters’ “inferior product,” but an action for fraud,
    fraudulent misrepresentation and violation of consumer protection
    statutes is not a comparative hearing on the quality of competing
    products.   The question is, how were the plaintiffs injured by
    the conduct of Test Masters.   The answer to that question – at
    least the answer established by the undisputed facts of record –
    is that they weren’t.   Two of the plaintiffs - Beck and
    Galloway - improved their LSAT scores after taking the course.
    Both scored in the 84th percentile or higher.   Both were admitted
    to law schools.   Neither took the Singh course, so neither can
    show that he or she would have done better with the Singh course.
    Plaintiff Reddy did take the Singh course, but she scored only
    one point higher on the LSAT after doing so, a de minimis
    difference that may reflect only the experience of having taken
    the test once before, and in any event she elected not to apply
    for or attend law school at all.
           After Test Masters filed this dispositive motion,
    plaintiffs moved for Rule 37 sanctions, alleging that within, or
    behind, Test Masters’ refusal to respond to its discovery demands
    lurked spoliation, obstruction, and discovery misconduct [Dkt.
    #34]. It was unnecessary to decide that motion while the motion
    for summary judgment was pending, and it will now be denied as
                                    - 4 -
               The rest of plaintiffs’ implied theory of damages is a
    series of “ifs” that gives new meaning to the word “speculation”:
    If the plaintiffs had taken the course they thought they had
    purchased, they would have achieved higher LSAT scores.     If they
    had higher LSAT scores, they would have been admitted into better
    law schools.2   If they had attended better law schools, they
    would have secured better paying, more prestigious jobs.3    No
    citation is required to support the necessary conclusion that
    plaintiffs have advanced no competent evidence to establish that
    they have been injured by the conduct of which they complain, or,
    if their careers have been less satisfying than they hoped, that
    causation can be found in the actions or omissions of Test
               The total absence of proof of damages or causation is
    enough to dispose of plaintiffs’ common law claims of fraud and
    negligent misrepresentation, but another step is required when
    considering plaintiffs’ CPPA claim.    That is because, in a recent
    decision that manages to evade its own precedent, the D.C. Court
    of Appeals has held that a CPPA claim brought on behalf of the
           Never mind that plaintiff Galloway was admitted to Notre
    Dame Law School, where she applied “early decision” because she
    had determined it was “the place for [her].” [Def. Mot. for SJ,
           Try that one on the top-tier law school graduates who now
    seem to be the hardest hit by the current law firm recession. See
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    general public will lie, regardless of whether the plaintiff
    experienced injury-in-fact.   Grayson v. AT&T, 
    980 A.2d 1137
    , 1154
    n. 78 (D.C. 2009).   The Court of Appeals’ workaround deals with
    the law of standing, acknowledging that it has historically hewn
    to the “case or controversy” line and that it has declined to
    find standing without injury in cases like Friends of Tilden
    Park, Inc. v. District of Columbia, 
    803 A.2d 1201
     (D.C. 2002),
    but latching onto its 1991 observation in Atchison v. District of
    585 A.2d 150
    , 153, that “this court . . . enjoys
    flexibility in regard to [the case or controversy requirement]
    not possessed by the federal courts.”   There is no CPPA claim in
    this case that purports to be brought on behalf of the general
    public, so plaintiffs’ CPPA claims probably would not survive
    even “flexible” review in the District of Columbia courts after
    the Court of Appeals’ startling decision in Grayson.   In this
    federal court, however, which is an Article III court and which
    lacks jurisdiction of claims that do not present a case or
    controversy, Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 559
    (1992), plaintiffs’ CPPA claim is fatally deficient and must be
    dismissed.   See Hoyte   v. Yum! Brands, Inc., 
    489 F. Supp. 2d 24
    (D.D.C. 2007) (actual or threatened injury required to bring a
                                    - 6 -
    DCCPPA claim) (citing Williams v. Purdue Pharma. Co., 297 F.
    Supp. 2d 171, 178 (D.D.C. 2003)).
              An appropriate order accompanies this memorandum.
                                   JAMES ROBERTSON
                             United States District Judge
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Document Info

DocketNumber: Civil Action No. 2004-1391

Judges: Judge James Robertson

Filed Date: 1/27/2010

Precedential Status: Precedential

Modified Date: 10/30/2014