Cuevas v. Verizon Wireless Personal Communications, LLP et al

Filing 61

OPINION AND ORDER denying 57 Plaintiff's Motion for Reconsideration.The Clerk is directed to transmit a copy of this Order to the United States Court of Appeals for the Eleventh Circuit. Signed by Judge John E. Steele on 3/27/2019. (BLW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LAURA CUEVAS,
Plaintiff,
v.

Case No:

2:18-cv-371-FtM-29CM

VERIZON WIRELESS PERSONAL
COMMUNICATIONS, LLP, EQUIFAX
INFORMATION SERVICES, LLC,
TRANS
UNION
LLC,
and
EXPERIAN
INFORMATION
SOLUTIONS, INC.,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
Reconsideration of This Court’s Denial of Plaintiff’s Motion to
Exclude the Affidavit of Ms. Meryl Friedman and the Customer
Service Agreement That Were Submitted to the Court as a True and
Accurate Document (Doc. #57) filed on March 5, 2019.

Verizon

Wireless Personal Communications, LLP (Verizon) filed a Response
in Opposition (Doc. #60) on March 19, 2019.

For the reasons set

forth below, the Motion is denied.
I.
This fair credit case 1 is currently stayed pending resolution
of Verizon’s interlocutory appeal under Section 16 of the Federal

1

Plaintiff brings claim under the Fair Credit Reporting Act
and the Florida Consumer Collection Practices Act.

Arbitration Act from this Court’s two orders (Docs. ##30, 48)
denying Verizon’s Motion to Compel Arbitration.

Verizon filed a

Notice of Appeal on September 20, 2018 (Doc. #36) and an Amended
Notice of Appeal on November 29, 2018 (Doc. #49) after the Court
denied Verizon’s pre-appeal 2 Motion for Reconsideration. Plaintiff
now moves the Court to reconsider its prior Order (Doc. #48)
denying

plaintiff’s

Motion

to

Exclude

the

Verizon

Wireless

Customer Agreements pursuant to Federal Rule of Civil Procedure
59(e) based on newly-discovered evidence and allow discovery on
the new evidence. 3
II.
Cuevas designates her Motion as one filed under Federal Rule
59(e).

However, because plaintiff seeks reconsideration from an

interlocutory order, not a final judgment as contemplated by Rule
59,

and

the

Motion

was

filed

outside

Rule

59’s

28-day

time

limitation, the Court will consider the Motion under Federal Rule
60(b), which allows for the Court to reconsider a prior order under

2

A notice of appeal filed after a motion for reconsideration
would not “oust the district court of jurisdiction”.
United
States v. Wilson, 307 F. App’x 314, 315 (11th Cir. 2009).
3

Plaintiff first moved the Eleventh Circuit to temporarily
relinquish jurisdiction to the District Court and to stay the
appeal. (Doc. #60, p. 6.) Verizon opposed the motion and further
requested in the alternative that the Eleventh Circuit supplement
the record with the newly-discovered evidence and allow the appeal
to proceed rather than relinquish jurisdiction. (Id.) The motion
remains pending before the Eleventh Circuit.

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certain circumstances.

See Mays v. U.S. Postal Serv., 122 F.3d

43, 46 (11th Cir. 1997) (“A post-judgment motion may be treated as
made pursuant to either Fed. R. Civ. P. 59 or 60 - regardless of
how the motion is styled by the movant - depending on the type of
relief sought.”).
A. Jurisdiction
“As a general matter, the filing of a notice of appeal
deprives

the

district

court

involved in the appeal.”

of

jurisdiction

over

all

issues

Mahone v. Ray, 326 F.3d 1176, 1179 (11th

Cir. 2003).

However, it does not prevent a district court from

considering

matters

in

furtherance

of

the

appeal

or

from

“entertaining motions on matters collateral to those at issue on
appeal.”

Id.

Consistent with these principles, the Eleventh

Circuit has held that district courts retain jurisdiction after
the filing of a notice of appeal to entertain and deny a Rule 60(b)
motion, but do not possess jurisdiction to grant such a motion.
Id. at 1180.

In this regard, the Eleventh Circuit instructed that

district courts should consider a Rule 60(b) motion and assess its
merits.

Id.

“It may then deny the motion or indicate its belief

that the arguments raised are meritorious.

If the district court

seeks the later course, the movant may then petition the court of
appeals to remand the matter so as to confer jurisdiction on the
district court to grant the motion.”

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Id.

Thus, the Court

considers the Motion and assesses its merits, but after doing so
the Court finds that the Motion will be denied.
B. Merits Assessment
1. Procedural History
This case stems from defendants’ attempt to collect a $2,326
debt from plaintiff Laura Cuevas, which is the amount she agreed
to pay under three Retail Installment Sales contracts for three
cellular telephones she purchased at a Best Buy store in 2016.
(Doc. #21-2.)

On August 22, 2018, the Court denied Verizon’s

Motion to Compel Arbitration without prejudice because Verizon had
not presented the Court with a copy of the Retail Installment Sales
Contracts signed by both plaintiff and Verizon (or Best Buy) as
required by Florida’s Retail Installment Sales Contract Act, Fla.
Stat. § 520.34(1)(a) (RISCA).

(Doc. #30.)

Verizon moved for

reconsideration (Doc. #34) and submitted three “Verizon Wireless
Customer Agreements” signed by plaintiff only (Doc. #34-1) which
were obtained from Best Buy after the Court’s ruling on the Motion
to Compel Arbitration.

Verizon argued that the three signed

customer agreements demonstrate that arbitration was appropriate.
In

response,

plaintiff

argued

that

the

Verizon

Customer

Services Agreements were not “new evidence” because it appeared
that Verizon

had

the

documents

in

its

possession

during

the

briefing of the Motion to Compel Arbitration, or at least before
the Court ruled on the Motion to Compel.

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Plaintiff also criticized

the

effort

Verizon

employed

to

obtain

the

signed

Customer

Agreements before the Court ruled on the Motion to Compel.
In Reply, Verizon submitted the Affidavit of Meryl Friedman,
Senior Paralegal with Verizon, who stated that although it had
made a request to Best Buy for the records, it did not receive the
signed Customer Agreements from Best Buy until August 31, 2018,
nine days after the Court denied the Motion to Compel Arbitration.
(Doc.

#43-1,

¶

4,

the

“Friedman

Affidavit”.)

Ms.

Friedman

asserted in her Affidavit that the Customer Agreements are records
made in the regular course of business at or near the time of the
events described in the documents.

(Id., ¶ 2.)

Plaintiff filed a Motion to Exclude the Customer Agreements
and the Freidman Affidavit as inadmissible under Federal Rule of
Evidence 803(6) (Doc. #45), which the Court denied.

In doing so,

the Court stated: “The Customer Agreements also show no indicia of
unreliability and plaintiff has otherwise offered no evidence that
the signed Customer Agreements are not authentic.”

(Doc. #48,

n.3.)
After considering the arbitration language set forth in the
Customer Agreements, as well as the arbitration language in a
lengthier “My Verizon Customer Agreement” (Doc. #21-3), the Court
denied the Motion for Reconsideration because it was unable to
reconcile the conflicting mandatory and permissible arbitration
clauses in each of the documents.

(Doc. #48.)

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Plaintiff now argues that newly-discovered evidence shows
that the Customer Agreements are inherently unreliable and should
be excluded from consideration.
2. The Newly-Discovered Evidence
While plaintiff was preparing her appellate brief, she “cut
and pasted” the PDF Customer Agreement (Doc. #34-1) into a Word
document.

When

she

did

so,

the

following

language

appeared

immediately above plaintiff’s signature: “To receive a credit for
the Customer activation fee, service cancellations must occur
within 3 days of purchase.”
6-11.)

This

sentence

produced to the Court.

is

(Doc. #34-1, p. 3; Doc. #70-1, pp.
hidden

from

the

Customer

Indeed, it appears as if the paragraph

immediately above plaintiff’s signature is cut off.
p. 3.)

Agreement

(Doc. #34-1,

Plaintiff argues that this hidden language shows that the

Customer Agreements have an indicia of unreliability and makes
clear that the Customer Agreements produced to the Court were not
“true and accurate” as represented by the Friedman Affidavit.
Plaintiff asserts that the hidden language raises a number of
questions that must be answered, including whether any other
language was in the Customer Agreement was altered.

(Doc. #57,

p. 4.)
In

response,

Verizon

submits

the

Declaration

of

Kwame

Sarpong, PCM Director for Best Buy Enterprise Services, Inc. (Doc.
#60-2), who has personal knowledge of Best Buy’s procedures for

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maintaining Verizon’s business records relating to the sale of
Verizon cell phones.

Sarpong explains that the line of text was

innocently obscured due to a “technical glitch” when the size of
the signature box “electronically captured Plaintiff’s signature
during the conversion process [and] did not completely align with
the

spacing

Verizon.”

in

the

template

(Doc. #60-2, ¶ 6.)

Receipt

Agreements

provided

to

Due to this technical glitch, the

signature box image obscured the final sentence of text when it
was “mapped” onto the agreement to create the final signed PDF
version.

(Id.)

However, Sarpong states that the obscured text

would have been available to plaintiff at the time she signed the
Customer Agreements.

(Id., ¶ 7.)

The PDF versions of the

Customer Agreements filed in this Court are the identical PDF
versions that Verizon received from Best Buy and Verizon did not
change or alter the documents in any way before they were submitted
to the Court.

(Doc. #60-1, ¶ 4.)

3. Rule 60(b) Standard and Application to this Case
The Court considers plaintiff’s motion as falling within Rule
60(b)(2) (existence of newly discovered evidence).

To succeed

under Rule 60(b)(2), a party must prove five elements: (1) the
evidence must be newly discovered since the pertinent ruling; (2)
the party must have exercised due diligence in discovering the
evidence;

(3)

the

evidence

must

not

be

merely

cumulative

or

impeaching; (4) the evidence must be material; and (5) the evidence

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must be of such a nature that the ruling would probably be
different.

Waddell v. Hendry County Sheriff’s Office, 329 F.3d

1300, 1309 (11th Cir. 2003).

A Rule 60(b)(2) motion is “an

extraordinary motion and the requirements of the rule must be
strictly met.”

Id. (citations omitted).

Here, the Court finds

that plaintiff has not met the fifth prong – that the evidence
would have changed the Court’s Opinion.
The business record exception to the hearsay rule under
Federal Rule of Evidence 803(6) states, in relevant part, that a
record will be admitted if:
(A)

(B)

the record was kept in the course of a regularly
conducted activity of a business, organization,
occupation, or calling, whether or not for profit;

(C)

making the record was a regular practice of that
activity;

(D)

all these conditions are shown by the testimony of
the custodian or another qualified witness, or by
a certification that complies with Rule 902(11) or
(12). . .

(E)

Fed.

the record was made at or near the time by — or
from information transmitted by — someone with
knowledge;

the opponent does not show that the source of
information or the method of circumstances of
preparation indicate a lack of trustworthiness.

R.

Evid.

803(6).

“Rule

803(6)

requires

that

both

the

underlying records and the report summarizing those records be
prepared and maintained for business purposes in the ordinary
course of business and not for purposes of litigation.”

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United

States v. Arias–Izquierdo, 449 F.3d 1168, 1183-84 (11th Cir. 2006).
“We have held that the touchstone of admissibility under Rule
803(6) is reliability, and a trial judge has broad discretion to
determine the admissibility of such evidence.”

United States v.

Bueno–Sierra, 99 F.3d 375, 378 (11th Cir. 1996).
The Declaration of Kwame Sarpong explains how the records
were made at or near the time of the occurrence by persons with
personal knowledge of the information in the record, kept in the
course of Best Buy’s regularly conducted business activities, and
administered and maintained by Best Buy as a regular practice.
(Doc. #60-2, ¶ 5.)

The fact that the Customer Agreements contain

obscured text would not have been a basis to exclude the agreements
as the Court has no evidence that the substantive contents (and
most

importantly

the

arbitration

language)

Agreements were altered in any way.

of

the

Customer

United States v. Arias–

Izquierdo, 449 F.3d 1168, 1183 (11th Cir. 2006) (“The touchstone
of admissibility under Rule 803(6) is reliability, and a trial
judge has broad discretion to determine the admissibility of such
evidence.”).

And

there

is

no

dispute

that

the

arbitration

language was included and visible to plaintiff at the time she
signed the Customer Agreements.

Therefore, the Court denies the

request for reconsideration.

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Accordingly, it is hereby
ORDERED:
1.

Plaintiff’s Motion for Reconsideration (Doc. #57) is

DENIED.
2.

The Clerk is directed to transmit a copy of this Order

to the United States Court of Appeals for the Eleventh Circuit.
DONE and ORDERED at Fort Myers, Florida, this __27th__ day of
March, 2019.

Copies:
Eleventh Circuit Court of Appeals
Counsel of Record

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