Usry v. Equityexperts.org, LLC
Filing
152
ORDER denying 122 Motion for Reconsideration. Defendants have 14 days from the date of this order to file a response to 124 MOTION for Approval of Class Notice and Questionnaire filed by Daniel Darnell, Sarah Usry. Signed by Chief Judge J. Randal Hall on 11/12/20. (cmr)
IN THE UNITED STATES DISTRICT COURT FOR THE
U.S. DISTRICT CDURi
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA UiV.
AUGUSTA DIVISION
MO NOV 12 A 10- n
*
SARAH USRY and DANIEL DARNELL,
on behalf of themselves and
■k
5
all others similarly situated,
RLE
t ^
SU. OiSL Or GA.
"k
k
Plaintiffs,
k
k
CV 116-010
k
V.
*
EQUITYEXPERTS.ORG, LLC d/b/a
EQUITY EXPERTS; MICHAEL NOVAK;
JACQUELINE GALOFARO; and MARK
BREDOW,
k
k
k
k
k
Defendants.
k
k
ORDER
Presently
before
reconsideration
121. )
(Doc.
the
Court
is
Defendants'
(Doc. 122) of the Court's March
For
the
following
reasons,
5
motion
for
2020 Order.
Defendants'
motion
is
DENIED.
I. BACKGROUND
The relevant facts are set forth in the Court's March 5, 2020
Order.
(Doc. 121, at 1-10.)
In that Order, the Court granted
Plaintiffs' motion for class certification.
the Defendants filed the present motion.
On March 19, 2020,
II. DISCUSSION
Defendants
filed
their
motion
for
reconsideration
within
twenty-eight days of the Court's Order; therefore, the Court will
analyze the motion under Federal Rule of Civil Procedure 59(e).
See Brown v. Spells, No. 7:ll-cv-91, 2011 WL 4543905, at *1 (M.D.
Ga. Sept. 30, 2011); accord Mahone v. Ray, 326 F.3d 1176, 1177 n.l
Reconsideration under Rule 59(e) is justified
(11th Cir. 2003).
\\
only when there is:
(1) an intervening change in controlling law;
(2) the availability of new evidence; or (3) the need to correct
n
v.
United
States, 2007 WL 2071264, at *2 (S.D. Ga. July 19, 2007).
Here,
clear
error
or
prevent manifest injustice.
Schiefer
Defendants do not assert there has been an intervening change in
law.
Additionally, Defendants concede there is no newly discovered
evidence.
evidence
ff
Instead,
and the
Defendants
Court should
newly
argue there is
reconsider its Order because
//
misrepresentations of fact made by the Plaintiffs.
2.)
available
of
(Doc. 122, at
Thus, the Court will assume Defendants are proceeding under
the theory that the Court must correct a clear error or prevent
manifest injustice.
\\
Reconsideration
of
a
previous
ft
remedy, to be employed sparingly.
l:15-cv-114,
2016
WL
1441467,
at
order
is
an
extraordinary
Armbuster v. Rosenbloom, No.
*1
(S.D.
Ga.
Apr.
11,
2016)
(citation and internal quotation marks omitted); see also Spellman
V. Haley, No. 97-T-640-N, 2004 WL 866837, at *2 (M.D. Ala. Feb.
2
22, 2002) ("[L]itigants should not use motions to reconsider as a
Because it "is not an
knee-jerk reaction to an adverse ruling.")
appeal, . . . it is improper on a motion for reconsideration to
ask the Court to rethink what the Court has already thought through
— rightly or wrongly.
and
internal
n
Armbuster, 2016 WL 1441467, at *1 (citation
quotation
established that
marks
omitted).
Moreover,
it
is
well
additional facts and arguments that should have
been raised in the first instance are not appropriate grounds for
a motion for reconsideration.
//
Gougler v. Sirius Prods., Inc.,
370 F. Supp. 2d 1185, 1189 (S.D. Ala. 2005) (citation omitted);
see also Am. Home Assurance Co. v. Glenn Estess & Assocs. ,
Inc.,
763 F.2d 1237, 1239 (11th Cir. 1985) (cautioning against use of a
motion for reconsideration to afford a litigant
W
two bites at the
apple"); Rossi v. Troy State Unlv., 330 F. Supp. 2d 1240, 1249-50
(M.D.
Ala.
2002)
(denying
motion
plaintiff failed to submit evidence
for
reconsideration
when
prior to entry of original
order and failed to show good cause for the omission).
Furthermore,
\\
the moving party must set forth facts or law of
a strongly convincing nature to induce the court to reverse its
ft
prior decision.
Burger King Corp. v. Ashland Equities, Inc., 181
F. Supp. 2d 1366, 1369 (S.D. Fla. 2002).
And, ultimately.
W
the
decision to grant a motion for reconsideration 'is committed to
the sound discretion of the district judge.
t If
Townsend v. Gray,
505 F. App'x 916, 917 (11th Cir. 2013) (quoting Region 8 Forest
3
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because
of
the
essentially
potential
argue
a
for
de
variation
Defendants
minimis recovery.
of
the
W
same
argument
the
Court
proceeding as a class is not
previously rejected and repeat that
a superior method as there will result in no recovery for any class
members. //
59 (e) .
(Doc. 122, at 6. )
e■g■ ,
See,
F.R.D.
680,
686
is not a vehicle
court
or
for
Wendy's
(M.D.
refuting
brought in bad faith,
1996)
the
Nu-Cape
('' [A motion
if
court's
the
Defendants'
15 U.S.C.
also
motion
V.
Lamport,
Nov.
1,
already rejected by the
that
(citation
this
action
was
argue
§ 1692k{a) (3) .
and Bredow
Galofaro,
Novak,
and
Bredow
FDCPA and thus,
are
not
cannot be
for
Supp.
No.
Because
reconsideration.
a
motion
for
r s not an opportunity for a party to improve upon
of this
966 F.
for reconsideration ]
finds
his arguments or try out new arguments.
Auth. ,
169
This argument has been raised for the first time in
reconsideration
the merits
Inc. ,
decision.")
\\ debt collectors n as defined under the
held liable.
Constr. ,
prior
Court
Defendants Galofaro, Novak,
Defendants
v.
§ 1692k allows the Court to award attorney's
fees to Defendants.
C.
Int'l
for rehashing arguments
Moreover,
omitted) .
Ga.
This is impermissible under Rule
argument
1209,
at
this
n
time.
1223
(M.D.
Ga.
02-21154-CIV,
2005
WL
2005) ("[A]ny arguments
the Court will not address
1997) ;
8155004,
the party
earlier motion will be deemed waived.")
5
McCoy V.
Macon Water
see also Underwood
at
failed to
*1
(S.D.
raise
in
Fla.
the
In the alternative, Defendants argue that even if Galofaro,
Novak, and Bredow are liable under the FDCPA, like Equity Experts,
their
net
worth
is
reconsideration.
zero.
This
argument also fails to
warrant
As the Court stated in its March 5, 2020 Order,
The Eleventh Circuit has noted the benefit of class adjudication
of FDCPA claims as compared to individual adjudication, even where
u
the potential recovery per putative class member is very small.
(Doc. 121, at 34) (quoting Dickens v. GC Servs. Ltd. P'ship, 706
F. App'x 529, 537-38 (11th Cir. 2017)).
D. Standing
Defendants do not challenge the named Plaintiffs' standing
based
upon
their
\\ Plaintiffs'
[sic]
alleged
lack
Instead,
injury.
standing
on
the
limitations and . . . the relief requested.
As
addressed
above,
motion
a
for
Defendants
basis
//
of
argue
statute
of
(Doc. 135, at 15.)
reconsideration
is
not
\\ an
appropriate vehicle to present authorities available at the time
//
of the first decision or to reiterate arguments previously made.
Scott V. Allstate Prop.
& Cas. Ins. Co., No. 408CV236, 2010 WL
1526050, at *1 (S.D. Ga. Apr. 15, 2010)(internal quotations and
citation omitted).
Thus, the Court will not address the merits of
the standing issue as it relates to the relief requested.
although
the
limitations
Defendants
argument,
the
conflate
a
Court
will
limitations argument separately below.
6
standing
address
Further,
and
statute
of
the
statute
of
E. Statute of Limitations
Defendants' statute of limitations argument evolves through
each reply.
by
the
First, Defendants argue Plaintiffs' claims are barred
statute
of limitations
decision in Rotkiske v. Klemm.
due
to
the
recent
Supreme
140 S. Ct. 355 (2019).
Court
Although
Defendants should have raised this argument prior to their motion
for reconsideration, the Court will address it.
An action under the FDCPA must be brought
within one year
from the date on which the violation occurs. n 15 U.S.C. § 1692k(d).
The Court in Rotkiske clarified that the statute of limitations in
w
the FDCPA
violation
begins to run on the date on which the alleged FDCPA
occurs,
discovered. //
are
the
date
on
which
Rotkiske, 140 S. Ct. at 357.
numerous
statutorily
not
communications,
permitted
time
some
of
period,
the
is
However, "where there
which
the
violation
outside
fall
plaintiff
may
the
maintain
those claims based on the communications that were not time barred
even
if
the
communications
concern
the
same
debt.
//
Rusk
V.
Specialized Loan Servicing, LLC, No. CV418-211, 2020 WL 2772771,
at 7 (S.D. Ga. May 28, 2020) (citing Kaplan v. Assetcare, Inc., 8 8
F. Supp. 2d 1355, 1360 (S.D. Fla. 2000); McCorriston v. L.W.T.,
Inc., 536 F. Supp. 2d 1268, 1272 (M.D. Fla. 2008)).
Here,
Plaintiffs
have
shown
debt
collection
letters
were
mailed to the named Plaintiffs within one year prior to the filing
of
this
action.
(See
Doc.
79-4 . )
7
Because
the
statute
of
limitations on
an
begins to run the
FDCPA claim based on
a
written
date the communication is mailed,
does not find the claim is barred at this time.
V.
communication
// the Court
Owens-BenniefieId
BSI Fin. Servs., 806 F. App'x 853, 857 (11th Cir. 2020) (citing
Maloy V. Phillips, 64 F.3d 607, 608 (11th Cir. 1995)).
Additionally, Defendants argue. In the alternative, that if
Defendants' actions are \\ separate and distinct . . . [it] would
preclude Plaintiffs' [sic] from raising the equitable doctrine of
the continuing violations doctrine.
//
(Doc 150, at 2.)
Defendants
do not elaborate on this argument, nor cite any legal authority.
Despite that, it is improper to raise this argument for the first
time in a motion for reconsideration.
Finally,
Defendants
argue
there
is
a
manageability
issue
because the Court would have to look at each potential class member
to
determine
argument
whether
should
their
have
claim
been
is
raised
time-barred.
earlier.
Again,
However,
this
if
individualized inquiry does become an issue, it may be resolved by
defining a class period.
5, 2020 Order, it
the class r
ft
Moreover, as the Court noted in its March
\\ is entitled to 'revisit the issue and de-certify
if it becomes necessary.
(Doc. 121, at 22) (quoting
In re Delta/Alrtran Baggage Fee Antitrust Lltig., 317 F.R.D. 675,
681 (N.D. Ga. 2016) ) .
III. CONCLUSION
Reconsideration is an extraordinary remedy, and
Defendants
have not shown justice requires the decertification of the class.
For the foregoing reasons, Defendants' motion for reconsideration
(Doc. 122) is DENIED.
Defendants have FOURTEEN (14) DAYS to file
a response to Plaintiffs' motion for approval of class notice and
questionnaire.
(Doc. 124.)
ORDER ENTERED at Augusta, Georgia, this
of November,
2020.
/
' J. RAHDA , HALL, ;^HIEF JUDGEi
UNITED a 'ATES DLSTRICT COURT
DISTRICT OF GEORGIA
9
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