Usry v., 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)

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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 I? uisTueu[oeui uoTq.oe pq0Q fiuTsnqe 9X e qsuxsbe 0qq pus qbqsM jsqqsui SUX0OUOO buxobuo 'ddx ●Aqxjoxx0dns ’OOQ) // uoxqnoesoxd pus qsqq sxqq .sjjTxuxexd :;x9ssp X0sunoo qe ( ● d 'Axx^^T JT^S’^S 0XISSX ux 0xs qe 0SU0j0p AUIOUOO0 qsqq ax0qq vv SeOTC^OEJd S J-^OM (..VdOaJvJ ssejo uot:;o01;XO3 sq.uepu0j0Q fi uxpuxx sqsoo qo jo buxpunom x^T^TPi^!^ 0n5xs 5uxpxs60x squppu0j0a 'qx0N Aiuouooa x-BTOTpnr ●a ●Aqxxoxusdns buxzAxeue ueqM uoqqej0pxsuoo 0qos s.qxnoo 'X0AO0XOW ( -ge qe 'xsi ’^oa) s pxnoM eqq 0OPXd sbueqo qou xxs qx U0A3 suiqsx^ S0op qx JJ ©qq qou n SS0U0XSMS qo qoBx \\ ■sqxnoo 0qq uo uqsxqs x®Tqu^’^t)0Suoo X^'^PT^TP'^T 'qxns sum p0xqq q^pq OAsq s ;qxno3 sxsAxeus su0qui0ui sssx^ p0sodoxd ●Aqxjoxxedns qo buxpuxq e quoddns qou S0op qqns buqxq oq 0Xq^ sq Asm Asqq qsqq eusMSun euaw suBqmom sssqo qsqq quomnbus .sqqqquxsxd 'snqq pus 'sqxsdxa Aqqnbg qsuqsbs sqxns peqxq SAsq sxsqmom sssqo pesodoxd ssnsoeq uopuo 0S02 U0PXSUOO0U pxnoqs qunoo sqq qsqq onbus squspusqeQ q^i^PTAxpux 'S pousw sqx 'qsxxq sqTng I'BnpTAxpui ●Moxsq quemnbus qoso sssupps XTT^ q^noo sqq 0Axq suqxqno seqxdou pus uoxqom .squspueqsQ ‘v ●squsmnbxs uqsm ●uoqqsxspxsuoosx uoq uoxqom .squspusqsQ oq 0suods0u uq SBqqdou oq squsmaqddns xo sexqdox XX qo qsqoq s poqxq 0Asq squspueqsQ pus sqqxquqsqd ''xeqqoBoq ● ( (C66I qqil) 908 '008 P2‘d 866 'qoooqv 'a qxounoo sxassqoxnd xequixq ‘^TO -Axog 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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