Williams v. NCB Management Services, Inc.
Filing
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MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 2/20/2018.Mailed notice.(jlj, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PAMELA WILLIAMS, individually and on behalf of all
others similarly situated,
Plaintiff,
vs.
NCB MANAGEMENT SERVICES, INC.,
Defendant.
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17 C 6756
Judge Gary Feinerman
MEMORANDUM OPINION AND ORDER
Pamela Williams brought this putative class action in state court against NCB
Management Services, Inc. (“NCB”), alleging that the collection letter it sent her violated the
Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C § 1692 et seq. Doc. 1-1. After NCB
removed the suit to federal court, Doc. 1, the court ordered Williams to show cause why the suit
should not be dismissed as precluded by the judgment in a materially identical suit, Williams v.
NCB Management Services, Inc., No. 16 C 9322 (N.D. Ill.) (Shadur, J.). Doc. 7. All docket
citations to follow are from the first case.
In the first case, Judge Shadur granted NCB’s motion to dismiss for lack of standing
under Rule 12(b)(1); as Judge Shadur explained, because Williams, who had recently emerged
from bankruptcy, had not listed her FDCPA claim on her schedule of assets, her FDCPA claim
remained the property of the bankruptcy estate. Doc. 27 at 2-3; see Morlan v. Universal Guar.
Life Ins. Co., 298 F.3d 609, 618 (7th Cir. 2002) (holding that, because the plaintiff “did not list
his … claim on the schedule, … abandonment was not authorized by [11 U.S.C. §] 554(c),” and
that “[p]roperty not abandoned under [§ 554] remains property of the debtor’s estate”). Judge
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Shadur noted that the dismissal was “without prejudice” and added that “under Rule 59(e) you
have got 28 days to come back in.” Doc. 27 at 2.
After reopening the bankruptcy case and amending her schedule of assets to include the
FDCPA claim, Williams moved on January 18, 2017 to “reopen” the FDCPA suit. Doc. 28.
Judge Shadur continued the motion to give Williams an opportunity to submit proof that the
bankruptcy trustee had officially abandoned the FDCPA claim. Doc. 30. The bankruptcy case
closed on March 29, thereby returning ownership of the FDCPA claim to Williams. Doc. 33 at
¶ 15. But Williams did not immediately inform the court that the bankruptcy case had closed,
and on April 4, Judge Shadur denied her motion to reopen, reasoning:
It has been 2-1/2 months since plaintiff … moved to reopen this action … .
Because considering any such reopening necessarily depended on a return to
the Bankruptcy Court so that appropriate steps could be taken to enable
Williams to proceed with the case, on January 27 this Court … continued
Williams’ motion generally to enable her to go before the Bankruptcy Court
for that purpose. More than two months have elapsed since then, and
Williams’ counsel has done nothing to bring her case back to life in this
District Court. Accordingly Williams’ motion to reopen … is denied.
Doc. 32.
Thirty days later, Williams moved for reconsideration of the denial of her motion to
reopen. Doc. 33. Judge Shadur observed that he would not have denied the motion to reopen
had he known that the bankruptcy case had closed, but he denied the reconsideration motion as
untimely under Rule 59(e). Doc. 37; see Fed. R. Civ. P. 59(e) (“A motion to alter or amend a
judgment must be filed no later than 28 days after the entry of the judgment.”).
The consequence of the denial of Williams’s motion to reopen, and also of her motion to
reconsider the denial of the motion to reopen, was to leave Judge Shadur’s original judgment in
place: a dismissal for lack of standing. Such a dismissal is without prejudice. See Lewert v. P.F.
Chang’s China Bistro, Inc., 819 F.3d 963, 969 (7th Cir. 2016) (“The district court here dismissed
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the plaintiffs’ claims for lack of subject-matter jurisdiction, which is a dismissal without
prejudice.”); Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 690 (7th Cir. 2015) (“Where
federal subject matter jurisdiction does not exist, federal courts do not have the power to dismiss
with prejudice.”) (internal quotation marks omitted). This allowed Williams to refile the suit if
and when she acquired standing. See Dupuy v. McEwen, 495 F.3d 807, 810 (7th Cir. 2007)
(“[D]ismissal without prejudice … allows the suit to be refiled … .”).
If Williams had just walked away from the case after Judge Shadur dismissed it for lack
of standing, there would have been no question that she was entitled to file a new suit after
acquiring standing upon a change of circumstances. See Granger v. Rauch, 388 F. App’x 537,
544 (7th Cir. 2010) (permitting a case that was refiled after an initial dismissal for improper
venue to go forward). That she unsuccessfully (and unnecessarily) attempted to revive the suit
with a motion to reopen and then a motion to reconsider, rather than simply filing a new suit,
does not alter the analysis. The only reason Williams’s suit was dismissed was that she did not
show that she had standing to pursue her FDCPA claim. Judge Shadur was evidently finished
waiting for Williams to provide evidence supporting her motion to reopen, but that did not
transform the dismissal without prejudice for lack of standing into a dismissal with prejudice.
Given that the factual circumstances bearing on standing have changed since Judge Shadur
dismissed the suit for lack of standing, Williams was free to refile her FDCPA claim, subject to
any statute of limitations defense that might have arisen in the interim.
For the foregoing reasons, the order to show cause is discharged, and this suit will not be
dismissed as precluded by the judgment in Case No. 16 C 9322.
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February 20, 2018
United States District Judge
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