Abanto v. Hayt, Hayt & Landau P.L. et al
Filing
57
ORDER denying 54 Motion for Reconsideration. Signed by Magistrate Judge John J. O'Sullivan on 10/18/2012. (mkr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-24543-CIV-O’SULLIVAN
[CONSENT CASE]
JUAN ABANTO,
Plaintiff,
v.
HAYT, HAYT & LANDAU, P.L.,
et al.,
Defendants.
_________________________/
ORDER
THIS MATTER is before the Court on the plaintiff’s Motion for Reconsideration
under Rule 59(e) Motion to Amend and Alter Judgment (DE# 54, 9/27/12). Having
reviewed the applicable filings and the law, it is
ORDERED AND ADJUDGED that the plaintiff’s Motion for Reconsideration
under Rule 59(e) Motion to Amend and Alter Judgment (DE# 54, 9/27/12) is DENIED.
ANALYSIS
I.
Standard for Reconsideration under Federal Rule 59(e)
A motion pursuant to Rule 59(e) of the Federal Rules of Civil Procedure must
demonstrate why the Court should reconsider its prior decision and "set forth facts or
law of a strongly convincing nature to induce the court to reverse its prior decision."
PaineWebber Income Properties Three Ltd. Partnership v. Mobil Oil Corp., 902 F.
Supp. 1514, 1521 (M.D. Fla. 1995) (quoting Cover v. Wal-Mart Stores, Inc., 148 F.R.D.
294 (M.D. Fla. 1993)). The decision whether to grant or deny a Rule 59(e) motion is
discretionary. Wendy’s International, Inc. v. Nu-Cape Construction, Inc., 169 F.R.D.
680, 684 (M.D. Fl. 1996). Most importantly, a motion for reconsideration should raise
new issues and not merely "reiterate arguments previously made." Z.K. Marine, Inc. v.
M/V Archigetis et al., 808 F. Supp. 1561, 1563 (S.D. Fla. 1992).
A motion for reconsideration should not be used as a vehicle to reiterate
arguments that were previously made:
[It is an improper use of] the motion to reconsider to ask the Court to
rethink what the Court . . . already thought through – rightly or wrongly . . .
. The motion to reconsider would be appropriate where, for example, the
Court has patently misunderstood a party, or has made a decision outside
the adversarial issues presented to the Court by the parties, or has made
an error not of reasoning but of apprehension. A further basis for a
motion to reconsider would be a controlling or significant change in the
law or facts since the submission of the issue to the Court. Such
problems rarely arise and the motion to reconsider should be equally rare.
Z.K. Marine, Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992) (citations
omitted); see also Wendy’s International, 169 F.R.D. at 686 (A Rule 59(e) motion
should not be used to relitigate old issues or to refute a Court’s prior decision).
II.
Plaintiff Fails to Raise New Issues
In his motion for reconsideration, the plaintiff fails to raise new issues. The facts
and case law cited in his motion existed at the time he filed his response to the
defendants’ motion to dismiss.
A.
Count I Failed to State a Claim under the federal Fair Debt
Collection Practices Act
Pursuant to Sub-section 1692g(a)(3) of the Fair Debt Collection Practices Act
(“FDCPA”), the debt collector may assume the debt to be valid “unless the consumer,
within thirty days after receipt of the notice, disputes the validity of the debt or any
portion thereof....” 15. U.S.C. § 1692 et seq. This Court dismissed with prejudice Count
I of his Second Amended Complaint because the plaintiff failed to request verification of
the debt within thirty days of receipt of the notice as required under the federal FDCPA.
See Second Amended Complaint and the exhibits attached thereto.
B.
Count II (Violation of Florida Consumer Collection Practices
Act) is Barred by the Litigation Privilege
Plaintiff’s state law claim for violation of the Florida Consumer Collection
Practices Act (“FCCPA”) is barred by the litigation privilege. “Florida law provides
complete judicial immunity ‘to any act occurring during the course of a judicial
proceeding ... so long as the act has some relation to the proceeding.’” Perez v.
Bureaus Inv. Group No. II, LLC, Case No. 09-CV-20784, 2009 WL 1973476 *3 (S.D.
Fla. July 8, 2009) (quoting Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole,
950 So. 2d 380, 384 (Fla. 2007) (quoting Levin, Middlebrooks, Mabie, Thomas, Mayes
Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994)). The filing
of the state court collection action relates to a judicial proceeding, and is the sole basis
of the plaintiff’s FCCPA claim asserted in Count II of his Second Amended Complaint.
See Perez , 2009 WL 1973476 at *3 (citing Gaisser v. Portfolio Recovery Associates,
571 F. Supp. 2d 1273 (S.D. Fla. 2008)).
In his motion for reconsideration, the plaintiff cites the Supreme Court’s decision
in Heintz v. Jenkins, 514 U.S. 291 (1995). The Heintz decision was available to the
plaintiff at the time he filed his response to the defendants’ motion to dismiss and at the
time he filed his motion for leave to file a third amended complaint. Heintz held that
“the [FDCP] Act applies to attorneys who ’regularly’ engage in consumer-debt-collection
activity, even when that activity consists of litigation.” Id. At 299. Heintz does not
change the outcome here. Because the FCCPA mirrors the federal statute, courts must
give “due consideration and great weight” to federal interpretations of the FDCPA in
applying and interpreting the FCCPA. Fla. Stat. § 559.77(5). The plaintiff’s untimely
request for verification of the debt negates his allegations that the defendants violated
the FCCPA because they filed a state court action to collect the debt after the thirty day
period expired. See, Perez and Gaisser, supra. Due to the plaintiff’s failure to request
verification of the debt within thirty days of receipt of the notice, Count II of the Second
Amended Complaint fails to state a cause of action.
DONE AND ORDERED, in Chambers, at Miami, Florida, this 18th day of
October, 2012.
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
All Counsel of Record
Copies mailed by Chambers to:
Juan Abanto
4250 SW 67 Avenue #22
Miami, FL 33155
4
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