United States Court of Appeals

For the First Circuit

No. 14–1618

SPARKLE HILL, INC. and WILLIAM WARMING,

individually and as the representatives of a class

of similarly situated persons,

Plaintiffs, Appellants,

v.

INTERSTATE MAT CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella, Thompson, and Kayatta,

Circuit Judges.

Phillip A. Bock, with whom Tod A. Lewis, Bock & Hatch, LLC,

Brian J. Wanca, David M. Oppenheim, Anderson + Wanca, Edward M.

Swartz, Alan L. Cantor, and Swartz & Swartz, were on brief, for

appellants.

Scott T. Ober, with whom David F. Hassett, Margarita I.

Warren, and Hassett & Donnelly, P.C., were on brief, for appellee.

June 3, 2015
KAYATTA, Circuit Judge. Nine years ago, plaintiffs

Sparkle Hill, Inc., and its vice president and owner William

Warming (collectively, "Sparkle Hill") received an unsolicited

advertisement on Sparkle Hill's fax machine from defendant

Interstate Mat Corporation ("Interstate"). Not one to act hastily,

Sparkle Hill filed suit against Interstate in federal district

court almost five years later, alleging a violation of the

Telephone Consumer Protection Act ("the Act"), 47 U.S.C. § 227. 

The Act allows recipients of unsolicited fax advertisements to

recover from the sender $500 in statutory damages (trebled for

willful and knowing violations) for each fax transmission. Id.

§ 227(b)(1)(C), (b)(3). Invoking Federal Rule of Civil

Procedure 23(b)(3), Sparkle Hill sought to proceed both

individually and on behalf of others who also received an identical

fax from Interstate in May 2006. Interstate sought summary

judgment on the ground that a four-year statute of limitations

barred Sparkle Hill's claim. Sparkle Hill filed no opposition, and

the district court thereupon entered summary judgment dismissing

the case. We now affirm.

I. Background

The parties do not dispute the facts relevant to this

appeal. Interstate, a Massachusetts corporation with four

employees, paid a marketing firm $496.40 to fax to 10,000 potential

customers a one-page advertisement for Interstate's antifatigue

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floor mats. In May 2006, the marketing firm transmitted

Interstate's advertisement to 8,416 recipients. One of those

recipients was Sparkle Hill, a New Jersey corporation. Another was

West Concord 5-10-1.00 Store, Inc. ("West Concord"), a

Massachusetts corporation. Aside from later litigation, Interstate

never received any response to its fax advertisement.

More than three and a half years later, on January 28,

2010, West Concord--represented by the same plaintiffs' counsel who

now represent Sparkle Hill--filed a class action against Interstate

in Massachusetts superior court for sending unsolicited fax

advertisements in violation of the Act. See 47 U.S.C.

§ 227(b)(1)(C), (b)(3). The state court complaint alleged a class

of "[a]ll persons" who received a fax advertisement from

Interstate.

More than one year after West Concord filed the state

class action and nearly five years after the fax transmissions,

Sparkle Hill filed this lawsuit in federal district court

individually and on behalf of a class of "[a]ll persons" who

received a fax from Interstate. Given a putative class of more

than 8,000 fax recipients, and statutory damages of $500 for each

fax sent, Interstate faced more than $4,000,000 in damages

liability, potentially tripled if Interstate was found to have

willfully and knowingly violated the Act. Id. § 227(b)(3).

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On May 22, 2012, West Concord filed a motion in state

court to certify a class of "[a]ll persons in Massachusetts who

were successfully sent a facsimile" from Interstate in May 2006. 

About a month later, Sparkle Hill moved in federal district court

to certify a class of "[a]ll persons who were successfully sent a

facsimile" from Interstate in May 2006. The federal district court

acted first, and certified Sparkle Hill's requested class on

December 18, 2012. Sparkle Hill, Inc. v. Interstate Mat Corp., No.

11-cv-10271-RWZ, 2012 WL 6589258, at *5 (D. Mass. Dec. 18, 2012);

see also Fed. R. Civ. P. 23(b)(3). Several months later, the state

trial court refused to certify a class of Massachusetts fax

recipients because of the court's doubts about West Concord's

ability to represent the class, the lack of predominant common

facts, the "enormous contrast between Interstate Mat's potential

liability and the actual harm suffered by potential class members,"

and the "inescapable [conclusion] that these class actions exist

for the benefit of the attorneys who are bringing them and not for

the benefit of individuals who are truly aggrieved." West Concord

5-10-1.00 Store, Inc. v. Interstate Mat Corp., No. 10-00356-C, 2013

WL 988621, at *5-8 (Mass. Super. Ct. Mar. 5, 2013).

In federal court, Sparkle Hill filed a motion for summary

judgment on May 28, 2013. Interstate opposed Sparkle Hill's motion

by disputing both that the faxes were unsolicited advertisements

and also that it willfully and knowingly violated the Act. 

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Interstate also cross-moved for summary judgment, asserting that

the applicable four-year statute of limitations barred Sparkle

Hill's claim under the Act. See 28 U.S.C. § 1658(a) (federal fouryear catch-all statute of limitations). Sparkle Hill filed a reply

brief in support of its own motion for summary judgment, but did

not address the merits of the statute of limitations defense

Interstate had raised. Instead, Sparkle Hill filed a motion to

strike (as untimely) Interstate's motion for summary judgment. 

Eight months later, the district court denied Sparkle Hill's motion

to strike. At the same time, the district court gave Sparkle Hill

an additional twenty-one days to file an opposition to the merits

of Interstate's limitations defense. The twenty-one days passed

with no word from Sparkle Hill.

After waiting two more months, the district court entered

summary judgment for Interstate on May 23, 2014. The district

court interpreted Sparkle Hill's silence in the face of

Interstate's limitations defense as a concession. Because Sparkle

Hill "d[id] not respond to [the limitations defense]," the court

"allow[ed] [Interstate's] motion for that reason." Sparkle Hill,

Inc. v. Interstate Mat Corp., No. 11-cv-10271-RWZ, 2014 WL 2215756,

at *2 (D. Mass. May 23, 2014). 

Wisely adding belt to suspenders, see Fed. R. Civ. P.

56(e)(3), the district court also addressed the merits of

Interstate's statute of limitations defense and concluded that

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Sparkle Hill's claim under the Act was time-barred.1 Id. at *3-4. 

Sparkle Hill received the fax in May 2006 but did not file suit

until February 2011, well after the four-year limitations period

the district court found applied.2 The district court considered

whether West Concord's state court class action tolled the statute

of limitations for Sparkle Hill's subsequent class action. See

American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553 (1974)

("[T]he commencement of the original class suit tolls the running

of the statute for all purported members of the class who make

timely motions to intervene after the court has found the suit

inappropriate for class action status."); Crown, Cork & Seal Co. v.

Parker, 462 U.S. 345, 353–54 (1983) (extending American Pipe

1 The district court also ruled that Massachusetts's threeyear statute of limitations for torts barred a state law conversion

claim contained in Sparkle Hill's complaint. See Mass. Gen. Laws

ch. 260, § 2A. Sparkle Hill does not contest this ruling on

appeal, so we say no more about it.

2 The district court noted a split of authority over the

source of the limitations period for claims under the Act. Sparkle

Hill, 2014 WL 2215756, at *3. Some courts apply the federal fouryear catch-all statute of limitations, 28 U.S.C. § 1658(a), see,

e.g., Giovanniello v. ALM Media, LLC, 726 F.3d 106, 115 (2d Cir.

2013); others apply the applicable state law statute of

limitations, see, e.g., Spillman v. Dominos Pizza, LLC, No. Civ.

10-349-BAJ-SCR, 2011 WL 721498, at *5–6 (M.D. La. Feb. 22, 2011). 

The district court did not decide the applicable statute of

limitations, however, because it concluded that Sparkle Hill's

claim was time-barred under both federal and state limitations

periods. Because we affirm the district court on other grounds, we

similarly need not decide the applicable statute of limitations. 

For simplicity, however, we follow the parties' lead and assume for

the sake of argument that the longer, four-year limitations period

in section 1658(a) applies. Compare Mass. Gen. Laws ch. 260, § 2A

(three-year statute of limitations for torts).

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tolling to class members who file their own suits after the denial

of class certification). The district court concluded that our

precedent foreclosed the application of American Pipe tolling to

sequential class actions, as opposed to class members' individual

actions. See Basch v. Ground Round, Inc., 139 F.3d 6, 11 (1st Cir.

1998) ("Plaintiffs may not stack one class action on top of another

and continue to toll the statute of limitations indefinitely.").

Sparkle Hill then filed a motion under Federal Rule of

Civil Procedure 60(b)(6) to "vacate" the district court's order and

"clarify the Memorandum Opinion . . . to decertify the class." The

Rule 60(b)(6) motion did not contest the district court's

conclusion that Sparkle Hill could not stack one class action on

top of another to extend the limitations period. Nor did it

challenge the district court's reliance on Sparkle Hill's failure

to respond as a basis for granting summary judgment. Sparkle Hill

instead advanced a limited argument that even if American Pipe

tolling did not apply to its class action, tolling might still

apply to its and the other class members' individual claims. 

Therefore, Sparkle Hill argued, the district court should have

decertified the class and allowed class members to pursue

individual tolling arguments, instead of entering judgment for

Interstate. The district court denied Sparkle Hill's motion

without explanation.

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Sparkle Hill timely appealed. In its opening brief on

appeal Sparkle Hill offers no argument at all for finding error in

the district court's decision to hold Sparkle Hill accountable for

its lack of opposition to Interstate's limitations defense. 

Instead, Sparkle Hill's brief argues the merits of the limitations

defense as applied both to the class and to Sparkle Hill. After

Interstate in its brief blew the whistle on Sparkle Hill's failure

to challenge the district court's reliance on its procedural

defalcation, Sparkle Hill in its reply brief made two new points: 

(1) because the burden of proving an affirmative limitations

defense rested with Interstate, Sparkle Hill's failure to oppose

the motion was of no moment; and (2) any waiver was harmless, and

should fit within an exception to the normal rules concerning

waiver.3

II. Analysis

We have seen this story before. A district court

dismisses a claim for perceived procedural defalcations; the losing

3 Sparkle Hill also suggests that the district court did not

rely on any waiver by Sparkle Hill as one grounds for granting

summary judgment. The district court, though, repeatedly made

plain that it considered Sparkle Hill's failure to respond to the

limitations defense an independently sufficient grounds for

granting Interstate's cross-motion for summary judgment: 

"[b]ecause plaintiffs concede that their suit is barred by the

statute of limitations, plaintiffs' motion is DENIED and

defendant's motion is ALLOWED"; "[p]laintiffs do not respond to

this [statute of limitations] argument, and I allow defendant's

motion for that reason"; and "for lack of opposition and on the

merits, defendant's motion for summary judgment is allowed." 

Sparkle Hill, 2014 WL 2215756, at *1–2, *4.

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party then files a brief on appeal arguing the substantive merits

of its claim, saving for its reply brief any argument challenging

the actual, procedural basis for the district court's ruling. See,

e.g., Díaz-Colón v. Fuentes-Agostini, No. 13–2340, 2015 WL 2345496,

at *3–4 (1st Cir. May 18, 2015). Our precedent is clear: we do

not consider arguments for reversing a decision of a district court

when the argument is not raised in a party's opening brief. Waste

Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000)

("We have held, with a regularity bordering on the monotonous, that

issues advanced for the first time in an appellant's reply brief

are deemed waived."). Sandbagging of this type deprives the

appellee of an opportunity to respond in writing on the issue. And

any attempt to remedy that unfairness by allowing a second

opposition, or sur-reply, brief can both increase costs for the

appellee and result in considerable delay.4

This does not mean that any and all contentions in

support of an appellant's argument are waived if not included in

the opening brief. Often, counterpoints and rebuttal rejoinders

arise or fit most naturally as a reply to an opposition argument

that could not have reasonably been anticipated. Neither our rules

4

 Reply briefs are often filed after a case has been assigned

to a panel and within a month of oral argument. Allowing thirty

days for a new opposition brief, plus time to review it, would

therefore often require postponing argument until the same panel is

scheduled to sit again. See First Circuit Internal Operating

Procedure VII(D)(3).

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nor fairness require a robust application of waiver in such

circumstances. See, e.g., Holmes v. Spencer, 685 F.3d 51, 66 (1st

Cir. 2012) (considering argument raised for first time in reply

brief in response to new argument in appellee's brief). Here,

though, the opening brief presents no argument at all challenging

express grounds upon which the district court prominently relied in

entering judgment. Indeed, the opening brief did not even mention

the procedural grounds upon which the district court ruled. One

hundred percent of the argument advanced for why we should reverse

that holding is in the reply brief.

 We have, too, added reason not to deviate from our

customary practice in this case. Even if we ignored Sparkle Hill's

waiver on appeal, that would simply get us to considering the

effect of its failure to oppose the summary judgment motion in the

district court. At best, that might lead us to plain error review. 

Díaz-Seijo v. Fajardo-Vélez, 397 F.3d 53, 55 (1st Cir. 2005). To

prevail on plain error review, Sparkle Hill would need to show that

"(1) an error occurred (2) which was clear or obvious and which not

only (3) affected the [appellant's] substantial rights, but also

(4) seriously impaired the fairness, integrity, or public

reputation of the judicial proceedings." Dávila v. Corporación de

P.R. para la Difusión Pública, 498 F.3d 9, 14–15 (1st Cir. 2007)

(alteration in original) (quoting United States v. Duarte, 246 F.3d

56, 60 (1st Cir. 2001)) (internal quotation marks omitted). Plain

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error review is "extremely demanding," and "in this circuit, it is

rare indeed for a panel to find plain error in a civil case." 

Chestnut v. City of Lowell, 305 F.3d 18, 20 (1st Cir. 2002) (en

banc) (per curiam).

Sparkle Hill has not come close to satisfying this

"extremely demanding" standard. Without expressing any view on the

correctness of the district court's denial of American Pipe tolling

to a second class action under our decision in Basch, we do not

perceive the district court's reasoning on this difficult issue as

clearly or obviously wrong. See Dávila, 498 F.3d at 15 ("The lack

of any clear, easily determinable answer to a legal conundrum is,

in itself, enough to defeat a claim of plain error."); cf.

Chestnut, 305 F.3d at 20 (plain error where district court's

decision was contrary to clearly applicable, decades-old Supreme

Court precedent).

Disposing of an appeal on technical or procedural grounds

rarely feels satisfying. Here, though, any hesitation ebbs quickly

when one assays the practical effect on the parties. For having

received one unwanted fax, Sparkle Hill would be entitled to at

most $1,500 ($500 in statutory damages, trebled for a willful and

knowing violation of the Act). See 47 U.S.C. § 227(b)(3). None of

the fax recipients complained to Interstate until plaintiffs'

counsel filed (on West Concord's behalf) the state court class

action. Sparkle Hill itself waited nearly five years after it

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received the fax to file the complaint in this case. And it points

to no class members who have relied on its prosecution of this

case. Interstate, in turn, has likely spent far more in defending

two class actions and an appeal than it gained in profits from

mass-faxing the advertisement. On the whole, we simply do not have

the type of circumstances that might cause us to use any slack in

the enforcement of our rules in order to avoid a miscarriage of

justice.

Finally, we do agree with Sparkle Hill that the district

court, rather than entering judgment against the entire class,

should have decertified the class. We read the district court's

orders, however, as doing just that. It did so by denying Sparkle

Hill's request for permission to send notice to the absent class

members. Sparkle Hill, 2014 WL 2215756, at *5. Absent such

notice, no Rule 23(b)(3) damages class can be bound by the

judgment. See AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740,

1751 (2011) ("For a class-action money judgment to bind absentees

in litigation, . . . absent members must be afforded notice, an

opportunity to be heard, and a right to opt out of the class.")

(citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811–12

(1985)); see also Fed. R. Civ. P. 23(c)(2)(B), (c)(3)(B). 

Accordingly, in affirming the judgment, we construe it as a

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judgment against the named plaintiffs only, with the class

decertified.5

III. Conclusion

We affirm the district court's grant of summary judgment

to Interstate on the claims of the named plaintiffs. We also

affirm the district court's denial of Sparkle Hill's Rule 60(b)(6)

motion.

5

 At oral argument, counsel for Interstate agreed that

Interstate will not be able to assert a res judicata defense

against the absent, unnoticed class members.

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