Pfitzer v. Beneficial California, Inc.

Filing 39

MEMORANDUM AND ORDER signed by Judge Morrison C. England, Jr on 8/12/10. ORDERING that Plaintiff's MOTION for Reconsideration 37 is DENIED. (Mena-Sanchez, L)

1 2 3 4 5 6 7 8 9 10 11 12 Plaintiff, 13 v. 14 15 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 ----oo0oo---Through this action Plaintiff Pamela Pfitzer ("Plaintiff") sought monetary relief from Defendant Beneficial California, Inc. ("Defendant") for alleged violations of the federal Truth in Lending Act, 15 U.S.C. § 1601 et seq. On June 10, 2010, this BENEFICIAL CALIFORNIA, INC., MANN BRACKEN, LLP; and Does 110 inclusive MEMORANDUM AND ORDER PAMELA PFITZER also known as PAMELA EBERT, No. 2:09-cv-02634-MCE-GGH UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Court issued an Order (Docket No. 36) granting Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint without leave to amend. Defendant was thereby terminated from the case.

Presently before the Court is Plaintiff's Motion for Reconsideration of the Court's June 10, 2010 Order. For the

reasons set forth below, Plaintiff's Motion is denied. 1

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BACKGROUND1

On August 21, 2006, Defendant mailed to Plaintiff a prescreened credit line offer of $8,000.00 with an initial check of $7,000.00. Plaintiff entered into contract with Defendant, and

by 2008 the balance due on the credit line, including fees and interest, was $9,551.53. Plaintiff alleges that Defendant failed to provide required disclosures prior to the consummation of the transaction in violation of the federal Truth in Lending Act ("TILA"), 15 U.S.C. § 1638(b). Specifically, Plaintiff alleges that Defendant failed

to provide such disclosures clearly and conspicuously in writing as mandated by 15 U.S.C. § 1632(a), Defendant failed to properly identify property subject to a security interest as mandated by 15 U.S.C. § 1638(a)(9), and that Defendant failed to advise Plaintiff that in the event of a default, Defendant would record a judgment against any property owned by Plaintiff. On March 19, 2010 this Court granted Defendant's Motion to Dismiss Plaintiff's First Amended Complaint (Docket No. 25) on the grounds that Plaintiff's TILA claim was time-barred and Plaintiff had failed to demonstrate the due diligence necessary to warrant an application of the equitable tolling doctrine. June 10, 2010, the Court granted Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint (Docket No. 36) on the grounds that Plaintiff had again failed to exhibit due diligence. On

The factual assertions in this section are based on the allegations in Plaintiff's First Amended Complaint unless otherwise specified. 2

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As it was Plaintiff's third unsuccessful attempt to state a claim against Defendant, the Court did not permit leave to amend and directed the Clerk to terminate Defendant.

STANDARD

Motions for relief from judgment pursuant to Rule 60(b) are addressed to the sound discretion of the district court. v. Albertson's Inc., 362 F.3d 1254, 1257 (9th Cir. 2004). court should be loathe to revisit its own decisions unless extraordinary circumstances show that its prior decision was clearly erroneous. Christianson v. Colt Indus. Operating Corp., This principle is That Casey A

486 U.S. 800, 816, 108 S. Ct. 2166 (1988).

generally embodied in the law of the case doctrine.

doctrine counsels against reopening questions once resolved in ongoing litigation. Pyramid Lake Paiute Tribe of Indians v. Nonetheless, under

Hodel, 882 F.2d 364, 369 (9th Cir. 1989).

certain limited circumstances, the court has discretion to reconsider its prior decisions. Pursuant to Local Rules, a motion for reconsideration must set forth the material facts and circumstances surrounding the motion, including: (1) what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion and (2) why the facts or circumstances were not shown at the time of the prior motion. /// /// 3 E.D. Cal. L.R. 230(j).

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A motion for reconsideration is treated as a Rule 59(e) motion if filed within ten days of entry of judgment, but as a Rule 60(b) motion if filed more than ten days after judgment. See Am. Ironworks & Erectors Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). Since this motion is

seeking reconsideration of a final disposition of claims against Defendant and was filed more than ten days after final disposition, the Court will treat it as a Rule 60(b) motion. Rule 60(b) enumerates the grounds upon which a motion for relief from an order or judgment may be made. It specifies that: On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief. Fed. R. Civ. Proc. 60(b). Mere dissatisfaction with the court's

order, or belief that the court is wrong in its decision, are not grounds for relief under Rule 60(b).

ANALYSIS

Plaintiff's Motion for Reconsideration fails to identify any newly discovered evidence or intervening case law to warrant reconsideration by the Court. /// /// /// 4

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Rather, Plaintiff stands on the same failed grounds as her oppositions to the prior two motions to dismiss, arguing that the Court's holding would require her to be "psychic" in order to discover Defendant's non-disclosures within the statute of limitations and without the application of equitable tolling. Plaintiff complains that "[u]sing the Court's logic, [Plaintiff] would have needed to file her lawsuit at a relatively short period of time in which the contract took place even though there had been no breach, therefore no damages in the case, and prior to the discovery of any wrongfulness by [Defendant]." If Plaintiff takes issue with time allotted to bring a claim for damages under TILA, then her redress is not with the courts but with the Congress. Pursuant to TILA, 15 U.S.C. § 1640(e), a

plaintiff may only file suit for damages under TILA "within one year from the date of the occurrence of the violation." The

"date of occurrence" is the date the transaction is consummated. See Walker v. Washington Mutual Bank FA, 63 F. App'x. 316, 317 (9th Cir. 2003). Here, Plaintiff entered into contract with

Defendant on about August 21, 2006, but did not file suit until August 7, 2009, almost three years later. By definition,

Plaintiff's claim falls outside of time constraints set forth by Congress. As a limited and extraordinary exception to this statutory mandate, the Ninth Circuit has held that the doctrine of equitable tolling may, in appropriate situations, be applied to suspend the limitations period in a TILA action if doing so would effectuate the congressional purpose of the Truth-in-Lending Act. King v. State of California, 784 F.2d 910, 915 (1986). 5

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In determining justifiable application of the equitable tolling doctrine, a court "focuses on excusable delay by the plaintiff," Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002), which is limited to circumstances in which a Plaintiff has shown "fraudulent conduct by the defendant resulting in concealment of the operative facts, failure of the plaintiff to discover the operative facts that are the basis of its cause of action within the limitations period, and due diligence by the plaintiff until discovery of those facts." Federal Election Com'n v. Williams,

104 F.3d 237, 240-41 (9th Cir. 1996). The Court has now twice indicated to Plaintiff that the facts, as alleged, have failed to meet this specified standard. The Ninth Circuit has denied application of the equitable tolling doctrine where "nothing prevented [the plaintiff] from comparing the loan contract, [the lender's] initial disclosure, and TILA's statutory and regulatory requirements." Federal Bank, 91 F.3d 75, 79 (1996). Hubbard v. Fidelity

As in Hubbard, Plaintiff

could have readily compared her loan contract with TILA requirements within the applicable statute of limitations. The

fact that Plaintiff may not have been aware of the relevant TILA provisions is non-dispositive; rather, the touchstone is whether Plaintiff made some cognizable attempt to inquire into the details of her loan and whether Defendant actively rebuffed her efforts through fraudulent concealment of facts. Here, Plaintiff

has repeatedly failed to indicate what circumstances, if any, prevented her from discovering the nondisclosures within the oneyear statute of limitations period granted by Congress. /// 6

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Nothing in Plaintiff's Motion presents new facts as to warrant the rarely granted relief requested. Nor has Plaintiff

presented any new case law which would suggest that the burden Plaintiff was required to meet is any less stringent than as applied here. Plaintiff's Motion also challenges the Court striking her Surreply which she filed without leave of Court in response to Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint. She states, "[i]f the only issue is seeking Plaintiff

permission, Plaintiff now seeks permission."

additionally argues that any claims against Defendant should have been stayed until the case was resolved as to co-defendant Mann Bracken. As the debt collector in this case, Plaintiff argues

that Mann Bracken served as Defendant's agent and therefore parties might share in certain liabilities. However, if Plaintiff wished to file a surreply or stay the case, it was incumbent upon her to do so in compliance with Local Rules and the Federal Rules of Civil Procedure. Both of these

actions required proper procedure to be initiated by Plaintiff, not by the Court. Finally, Plaintiff's Motion concludes by blaming the shortcomings of Plaintiff's pleadings on the "young and new attorney supervised by a senior paralegal" who apparently drafted the original documents. According to Plaintiff the "young man

who made the error no longer is employed with the firm." /// /// /// 7

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While Plaintiff's Counsel does acknowledge that "the buck stops with the person signing the complaint," Counsel still asks that the Court reconsider its refusal to grant leave to amend in light of the mistakes previously made. The Court does not lokk favorably upon Counsel's use of his staff as a scapegoat for the pitfalls of Plaintiff's Complaint. Regardless of who may pen a document, the signing attorney is the one responsible for the work product submitted to the Court and no allowances will be made for drafting decisions made internally. Plaintiff's excuses not only fail to warrant

equitable tolling, and fail to warrant reconsideration, but also fail to exhibit the requisite professionalism expected by this Court. Plaintiff's Motion for Reconsideration (Docket No. 37) is hereby DENIED. IT IS SO ORDERED. Dated: August 12, 2010

_____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

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