Baez v. LTD Financial Services, L.P.

Filing 96

ORDER denying 76 Defendant's Motion for Reconsideration; overruling 94 Defendant's Objection to Magistrate's Order; affirming 93 the Magistrate Judge's February 27, 2017 Order granting Plaintiff's Renewed Motion to Appear Pro Hac Vice. Signed by Judge Paul G. Byron on 4/7/2017. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

LIZNELIA BAEZ, on behalf of herself
and all others similarly situated,
Plaintiff,
v.

Case No: 6:15-cv-1043-Orl-40TBS

LTD FINANCIAL SERVICES, L.P.,
Defendant.
ORDER
This cause comes before the Court on the following:
1. Defendant’s Motion for Reconsideration (Doc. 76), filed February 7, 2017;
2. Plaintiff’s

Response

in

Opposition

to

Defendant’s

Motion

for

Reconsideration (Doc. 84), filed February 16, 2017;
3. Defendant’s Objection to Magistrate’s Order (Doc. 94), filed March 1, 2017;
and
4. Plaintiff’s Response to Defendant’s Objection to Magistrate’s Order
(Doc. 95), filed March 6, 2017.
I.

BACKGROUND
This class action lawsuit arises out of Plaintiff’s receipt—and the receipt by

approximately 34,000 other individuals—of a dunning letter from Defendant which sought
partial payment of a debt that is barred by the applicable statute of limitations. Plaintiff
claims that the dunning letter violates the Fair Debt Collection Practices Act (“FDCPA”)
due to Defendant’s failure to disclose to the recipient that a partial payment on a time-

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barred debt “revives” the debt under Florida law, thus subjecting the recipient to liability
anew. In this way, Plaintiff asserts that Defendant’s dunning letter misrepresents the true
character and legal status of the underlying debt and otherwise constitutes a misleading
and unfair means of collecting or attempting to collect a debt.
On July 12, 2016, Defendant moved for judgment on the pleadings and, on
August 1, 2016, Defendant moved for summary judgment. On January 30, 2017, the
Court converted Defendant’s motion for judgment on the pleadings into a motion for
summary judgment, considered the motion together with Defendant’s other later-filed
motion for summary judgment, and denied both motions. Defendant now asks the Court
to reconsider its denial of the converted motion for summary judgment (Defendant’s
former motion for judgment on the pleadings).
Additionally, on February 24, 2017, class counsel moved to allow co-counsel,
David K. Lietz, to appear pro hac vice. On February 27, 2017, the presiding Magistrate
Judge granted the motion over Defendant’s opposition. Defendant now appeals from the
Magistrate’s decision as well.
II.

DISCUSSION
A.

Motion for Reconsideration

Reconsideration is an extraordinary remedy which will only be granted upon a
showing of one of the following: (1) an intervening change in law, (2) the discovery of new
evidence which was not available at the time the Court rendered its decision, or (3) the
need to correct clear error or manifest injustice. Fla. Coll. of Osteopathic Med., Inc. v.
Dean Witter Reynolds, Inc., 12 F. Supp. 2d 1306, 1308 (M.D. Fla. 1998). It is wholly
inappropriate in a motion for reconsideration to relitigate the merits of the case or to “vent

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dissatisfaction with the Court’s reasoning.” Madura v. BAC Home Loans Servicing L.P.,
No. 8:11-cv-2511-T-33TBM, 2013 WL 4055851, at *2 (M.D. Fla. Aug. 12, 2013). Instead,
the party moving for reconsideration must set forth “strongly convincing” reasons for the
Court to change its prior decision. Id. at *1.
In its motion for reconsideration, Defendant contends that the Court clearly erred
when it found that the legal theory on which Plaintiff premises her FDCPA claims—that a
partial payment on a time-barred debt revives the debt—is an accurate representation of
Florida law. Defendant takes the position that a case Plaintiff cites in her Complaint does
not support her legal theory. Defendant then focuses on Plaintiff’s admission in response
to Defendant’s motion for judgment on the pleadings that she was incorrect to cite that
case in her Complaint. As a result, Defendant concludes that it is entitled to judgment as
a matter of law on Plaintiff’s claims due to Plaintiff’s mistaken citation of authority in her
pleading.
Defendant confuses the accuracy of Plaintiff’s legal theory of liability with the
accuracy of authority she used to support that legal theory in her Complaint. It is true that
the case Plaintiff cited in her Complaint—Cadle Co. v. McCartha, 920 So. 2d 144 (Fla.
Dist. Ct. App. 2006)—does not apply to this dispute. Cadle stands for the proposition that
the partial payment of a debt tendered before the statute of limitations has run acts to toll
the statute of limitations through the date of the last partial payment. Id. at 146. As the
parties know, this case does not implicate the partial payment of a debt prior to the running
of the statute of limitations, but the partial payment of a debt after the statute of limitations
has already run.

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Instead, section 95.04, Florida Statutes, along with interpretive case law, govern
Plaintiff’s theory. These legal authorities recognize the well-established principle under
Florida law that, when a debt has become time-barred due to the running of the statute
of limitations, the debt may be revived and the debtor may be subjected to liability anew
if the debtor subsequently acknowledges or promises to pay the time-barred debt in a
signed writing. See, e.g., Fla. Stat. § 95.04; In re Stewart, 215 B.R. 633, 636–37 (Bankr.
M.D. Fla. 1997); In re Kessler Mfg. Corp., 109 B.R. 516, 519 (Bankr. S.D. Fla. 1989);
Coker v. Phillips, 103 So. 612, 614–15 (Fla. 1925); Wassil v. Gilmour, 465 So. 2d 566,
568 & n.5 (Fla. Dist. Ct. App. 1985); Kitchens v. Kitchens, 142 So. 2d 343, 345 (Fla. Dist.
Ct. App. 1962). In fact, these are the legal authorities the parties discussed on summary
judgment and which the Court analyzed and relied on in finding that Plaintiff’s legal theory
of liability is indeed an accurate representation of controlling Florida law. And nothing in
Defendant’s motion for reconsideration leads the Court to conclude differently.
In the end, Defendant’s argument is untenable. Defendant would have the Court
enter summary judgment in its favor due to Plaintiff’s singular mis-citation of legal
authority in her Complaint, despite Plaintiff’s clear and consistent enunciation of her legal
theory of liability from the beginning of this case, despite the parties’ lengthy briefing on
that theory, and despite the weight of legal authority supporting that theory. To do as
Defendant requests would constitute a miscarriage of justice. Defendant’s motion for
reconsideration will be denied.
B.

Appeal from Magistrate Judge’s Order

A district judge may designate a magistrate judge to hear and determine both
dispositive and non-dispositive matters. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a),

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(b). When a party objects to the magistrate judge’s decision on a non-dispositive matter,
as is the case here, the district judge must review that decision for clear error. Fed. R.
Civ. P. 72(a). In reviewing the decision, the district judge affords the magistrate judge
considerable deference and will only set aside those portions of the decision that are
contrary to law or that, upon review of the entire record, leave the district judge “with the
definite and firm conviction that a mistake has been committed.” Malibu Media, LLC v.
Doe, 923 F. Supp. 2d 1339, 1346–47 (M.D. Fla. 2013) (quoting Holton v. City of
Thomasville Sch. Dist., 425 F.3d 1325, 1350 (11th Cir. 2005)).
Defendant appeals from the Magistrate Judge’s February 27, 2017 decision
granting Plaintiff’s motion to permit co-counsel to appear in this Court pro hac vice.
Defendant contends that the Magistrate Judge erred in granting the motion because
Defendant believes allowing another attorney to appear for the benefit of the plaintiff and
the class sidesteps the requirements of Federal Rule of Civil Procedure 23(g) and
undermines this Court’s prior finding that current class counsel can adequately represent
the interests of the class. Defendant is incorrect. There is no requirement that every
attorney who appears on behalf of a plaintiff in a class action lawsuit be certified as class
counsel or meet Rule 23(g)’s adequacy requirements. See Fed. R. Civ. P. 23(g)(2).
Moreover, the Court sees no connection between Mr. Lietz’s appearance in this case and
the adequacy of current class counsel.

The Magistrate Judge reached the correct

decision and will therefore be affirmed.
III.

CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion for Reconsideration (Doc. 76) is DENIED.

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2. Defendant’s Objection to Magistrate’s Order (Doc. 94) is OVERRULED.
3. The Magistrate Judge’s February 27, 2017 Order granting Plaintiff’s
Renewed Motion for Permission for David K. Lietz to Appear Pro Hac Vice
(Doc. 93) is AFFIRMED.
DONE AND ORDERED in Orlando, Florida on April 7, 2017.

Copies furnished to:
Counsel of Record

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