Reyes v. Julia Place Condominiums Homeowners Association, Inc. et al
Filing
651
ORDER & REASONS. It is ORDERED that Plaintiff's 641 Motion for Reconsideration is DENIED. Signed by Judge Carl Barbier. (Reference: 12-2043)(gec)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NICOLE REYES, ET AL.
CIVIL ACTION
VERSUS
NO: 12-2043
JULIA PLACE CONDOMINIUMS
HOMEOWNERS ASSOCIATION,
INC., ET AL.
SECTION: “J”(3)
ORDER & REASONS
Before the Court is a Motion for Reconsideration (Rec. Doc.
641) filed by Plaintiffs Nicole Reyes and Mike Sobel and an
opposition thereto (Rec. Doc. 646) filed by Defendant Rotunda
condominiums Homeowners Association, Inc. Having considered the
motion and legal memoranda, the record, and the applicable law,
the Court finds that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
The facts of this case are set forth in detail in previously
issued Orders and Reasons (see, e.g., Rec. Doc. 464); therefore,
the Court will only briefly recount them here. This is a class
action lawsuit brought by Plaintiffs Nicole Reyes and Mike Sobel
on behalf of themselves and other condominium owners at various
properties
condominium
Plaintiffs
throughout
New
associations
allege
that
as
the
Orleans
well
against
as
Steeg
Defendants
have
their
Law
respective
LLC
engaged
collection practices that violate state and federal law.
(Steeg).
in
debt
On May 23, 2014, Plaintiffs filed a motion to certify three classes
of condominium owners. (Rec. Doc. 351.) The first class consists
of condominium owners who were subject to alleged violations of
the Fair Debt Collection Practices Act (FDCPA). Plaintiffs allege
that Steeg utilizes a standard form collection letter that violates
the FDCPA on its face by demanding payment of unpaid assessments
within seven days, and that Steeg violated the FDCPA by filing
excessive liens on condominium owners’ properties. The second
class consists of condominium owners who were charged excessive
late fees and interest rates for delinquent payment of assessments
that allegedly violated Louisiana’s usury laws. The third class
consists of those who were charged late fees allegedly in violation
of the Louisiana Condominium Act (LCA).
On December 18, 2014, the Court certified a FDCPA class
limited to claims for monetary relief against Steeg. The Court
defined the FDCPA monetary relief class narrowly as “consisting of
unit
owners
who
received
letters
identical
or
substantially
similar to those attached as Exhibits “A” and “D” of the original
complaint during the year prior to the filing of the action.” (Rec.
Doc. 464, at 16.) The Court denied certification of an FDCPA class
for
injunction
relief
and
denied
certification
of
the
FDCPA
monetary relief class for claims against the various condominium
associations. Id. at 6, 15. The Court also denied certification of
the LCA class and deferred ruling on whether certification was
2
appropriate for the proposed usury class because a portion of the
proposed class had not actually paid the late fees that had been
charged to them.
On August 20, 2015, the Court certified a narrowed version of
the usury class, divided into two subclasses. Specifically, the
Court certified “a class of past and present condominium owners
who have paid allegedly usurious late fees. The class shall be
divided into two subclasses, one seeking monetary relief and
another seeking injunctive relief for purported violations of the
usury law.” (Rec. Doc. 529, at 16.) The Court did not reach whether
members who had not actually paid late fees possess standing
because it held that the usury class “must exclude those who did
not
actually
make
payments
on
late
fees
because
they
lack
commonality with the other members of the proposed class.” Id. at
6, 9-10.
On January 8, 2016, this case was realloted and randomly
assigned to this section of the court. Since that time, the parties
have filed several motions. On June 7, 2016 the Court issued an
Order & Reasons on Rotunda’s Second Motion for Summary Judgment
(Rec. Doc. 622.) In short, the Court held that:
[A]ll claims against Rotunda asserted in this lawsuit
have been eliminated. The Court’s class definitions
exclude Rotunda completely based on the Court’s previous
finding that Rotunda did not collect usurious fees
within the two-year period. In addition, the Court’s
previous rulings eliminated the claims against Rotunda
under the FDCPA and the LCA. Thus no claims against
3
Rotunda remain. Accordingly,
summary judgment.
Rotunda
is
entitled
to
Plaintiffs filed the instant Motion for Reconsideration on
June 24, 2016 challenging the Court’s June 7, 2016 Order on
Rotunda’s Second Motion for Summary Judgment. (Rec. Doc. 641.)
Defendant Rotunda filed an opposition thereto on July 5, 2016 (Rec.
Doc. 646.) The motion for reconsideration is now before the Court
on the briefs.
ARGUMENT
Plaintiffs’
arguments
in
support
of
their
motion
for
reconsideration may be summarized as follows: The Court either
ignored or failed to consider the affidavit of J. Brian Kelley,
and
in
doing
so,
disregarded
a
fact
which
precluded
summary
judgment in favor of Rotunda. (Rec. Doc. 641-1.) Plaintiffs argue
that “[t]he only reason Rotunda was granted summary judgment before
class certification was because the district court did not consider
plaintiffs’ opposition as timely due to an oversight on a pending
motion to compel.” (Rec. Doc. 641-1, at 2.) Plaintiffs claim their
untimely motion was caused by Magistrate Judge Michael North’s
failure to advise the Court of a pending motion to compel. Id.
Plaintiffs argue that Judge North later agreed that subsequent
evidence against Rotunda could be presented which would allow the
plaintiffs to defeat summary judgment. Id. at 4. Plaintiffs argue
that there are no procedural rules which bar them from presenting
4
the affidavit of Mr. Kelley to oppose Rotunda’s present motion.
Id. at 5.
LEGAL STANDARD
The Federal Rules of Civil Procedure do not expressly allow
motions for reconsideration of an order. Bass v. U.S. Dep’t of
Agric., 211 F.3d 959, 962 (5th Cir. 2000).
The Fifth Circuit
treats a motion for reconsideration challenging a prior judgment
as either a motion “to alter or amend” under Federal Rule of Civil
Procedure 59(e) or a motion for “relief from judgment” under
Federal Rule of Civil Procedure 60(b). Lavespere v. Niagara Mach.
& Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated
on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1076
(5th Cir. 1994).
The difference in treatment is based on timing.
If the motion is filed within twenty-eight days of the judgment,
then it falls under Rule 59(e). Id.; Fed. R. Civ. P. 59(e).
However, if the motion is filed more than twenty-eight days after
the judgment, but not more than one year after the entry of
judgment, it is governed by Rule 60(b). Id.; Fed. R. Civ. P. 60(c).
In the present case, Defendants’ Motion for Reconsideration (Rec.
Doc. 641) was filed on June 24, 2016 which is within twenty-eight
days of the June 7, 2016 Order & Reasons. (Rec. Doc. 622.)
As a
result, Defendants’ Motion for Reconsideration (Rec. Doc. 641) is
treated as a motion to alter or amend under Rule 59(e).
5
Altering
or
amending
a
judgment
under
Rule
59(e)
is
an
“extraordinary remedy” used “sparingly” by the courts. Templet v.
Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004).
A motion to
alter or amend calls into question the correctness of a judgment
and is permitted only in narrow situations, “primarily to correct
manifest errors of law or fact or to present newly discovered
evidence.” Id.; see also Schiller v. Physicians Res. Grp. Inc.,
342 F.3d 563, 567 (5th Cir. 2003).
Manifest error is defined as
“‘[e]vident to the senses, especially to the sight, obvious to the
understanding, evident to the mind, not obscure or hidden, and is
synonymous with open, clear, visible, unmistakable, indubitable,
indisputable,
evidence,
and
self-evidence.’”
In
Re
Energy
Partners, Ltd., 2009 WL 2970393, at *6 (Bankr. S.D. Tex. Sept. 15,
2009) (citations omitted); see also Pechon v. La. Dep't of Health
& Hosp., 2009 WL 2046766, at *4 (E.D. La. July 14, 2009) (manifest
error is one that “‘is plain and indisputable, and that amounts to
a
complete
disregard
of
the
controlling
law’”)
(citations
omitted).
The Fifth Circuit has noted that “such a motion is not the
proper
vehicle
for
rehashing
evidence,
legal
theories,
or
arguments that could have been offered or raised before entry of
judgment.” Templet, 367 F.3d at 478-79.
Nor should it be used to
“re-litigate prior matters that ... simply have been resolved to
the movant’s dissatisfaction.” Voisin v. Tetra Techs., Inc., No.
6
08-1302, 2010 WL 3943522, at *2 (E.D. La. Oct. 6, 2010).
Thus, to
prevail on a motion under Rule 59(e), the movant must clearly
establish at least one of three factors: (1) an intervening change
in the controlling law, (2) the availability of new evidence not
previously available, or (3) a manifest error in law or fact.
Schiller, 342 F.3d at 567; Ross v. Marshall, 426 F.3d 745, 763
(5th Cir. 2005) (to win a Rule 59(e) motion, the movant “must
clearly establish either a manifest error of law or fact or must
present newly discovered evidence”).
DISCUSSION
In this case, Defendants do not rely on an intervening change
in controlling law since the Court’s June 7, 2016 Order and
Reasons. (Rec. Doc. 622.)
Moreover, Defendants have not pointed
to any newly discovered evidence previously unavailable to them.
Thus, Defendants must clearly establish either a manifest error of
law or fact. Ross, 426 F.3d at 763.
At the time of the Court’s June 7, 2016 Order and Reasons,
the Court had already ruled that Plaintiffs had no direct or class
claims under the FDCPA or LCA against Rotunda. (Rec. Doc. 464, at
6, 15, 17.) Thus, the only remaining avenue for recovery was under
Louisiana usury laws. In this Court’s August 20, 2015 Order and
Reasons the Court certified a narrow version of the usury class,
limited to “past and present condominium owners who have paid
allegedly usurious late fees.” (Rec. Doc. 529, at 16.) The Court
7
explained that the requirements of commonality for the class are
met for “those members who have made payments on usurious fees
only.” Id. at 10. Further, as explained by the June 7, 2016 Order,
“[t]he requirement of commonality, and therefore the requirement
that class members have actually paid allegedly usurious fees,
applies to both subclasses of the usury class, regardless of
whether the relief sought is monetary or injunctive.” (Rec. Doc.
622, at 8.) Accordingly, the only issue left to be decided was
whether
“any
condominium
unit
owners
actually
paid
Rotunda
allegedly usurious late fees.” Id. As explained in this Court’s
September 11, 2013 Order and Reasons, the Court specifically found
that Rotunda did not collect any allegedly usurious late fees
during the two-year period at issue. Id. at 9. Turning to the
Court’s September 11, 2013 Order, it is clear that Mr. Kelley’s
affidavit was considered, but nevertheless, the Court determined
that no genuine issues of material fact existed:
Rotunda argued and submitted evidence that there is no
genuine issue of material fact that it did not collect
any late fees within two years before filing this suit.
Rec. Doc. 227 at 9; Plaintiff has not rebutted this
evidence. RCB’s general manager, Stephanie Burmaster
declared that her company had used property management
software to search the General Ledger and Tenant Ledger
for Rotunda, and that between August 1, 2010 and May 1,
2013 the only condominium owner that was charged a late
fee was MTB Properties, LLC, the owner of unit 210. Rec
Doc. 227-2 at 3. Furthermore, while MTB Properties, LLC 1
was assessed four late fees from August to November 2010,
Rotunda forgave these late fees on December 1, 2010. Id.
1
Mr. Kelly is the registered agent for MTB Properties, LLC. (Rec. Doc. 641-2,
at 1.)
8
. . . The Court finds that Rotunda has demonstrated that
it did not collect any late fees during the two-year
period at issue here under Louisiana Revised Statute
9:3500(C)(2). Rec. Doc. 277 at 6; Rec. Doc. 153 at 1516. Therefore, the Court grants Rotunda’s motion for
summary judgment on this issue only. Rec. Doc. 227.
In conclusion, this Court’s June 7, 2016 Order considered the
Court’s September 11, 2013 Order. The Court’s September 11, 2013
Order considered Mr. Kelly’s affidavit, but nevertheless found
that no genuine issue of material fact existed. Consequently, the
Court finds that Defendants’ reasons for seeking reconsideration
are based on evidence and arguments previously heard and considered
by the Court, and the Court’s previous ruling was not based on an
erroneous view of the law or an erroneous assessment of the
evidence.
CONCLUSION
Accordingly,
IT
IS
HEREBY
ORDERED
that
Plaintiff’s
Motion
Reconsideration (Rec. Doc. 641) is DENIED.
New Orleans, Louisiana, this 19th day of July, 2016.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
9
for
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