Reyes v. Julia Place Condominiums Homeowners Association, Inc. et al

Filing 680

ORDER & REASONS: denying 652 Plaintiffs Motion for Reconsideration; FURTHER ORDERED that all claims against Defendant The Rotunda Condominiums Homeowners Association, Inc. are DISMISSED. Signed by Judge Carl Barbier on 8/15/16. (Reference: 12-2043)(sek)

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 Plaintiffs’ Motion for Reconsideration
(Rec. Doc. 652.) 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

throughout

New

Plaintiffs

associations
allege

that

as
the

Orleans
well

against
as

Steeg

Defendants

have

their
Law

respective

LLC

engaged

(Steeg).
in

debt

collection practices that violate state and federal law.
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

injunctive

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
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.
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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 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, this 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
Rotunda remain. Accordingly, Rotunda is entitled to
summary judgment.
On

June

24,

2016,

Plaintiffs

filed

a

Motion

for

Reconsideration (Rec. Doc. 641) challenging this Court’s June 7,
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2016 Order on Rotunda’s Second Motion for Summary Judgment (Rec.
Doc. 622.) On July 19, 2016 this Court denied Plaintiffs’ Motion
for Reconsideration. (Rec. Doc. 651.) On July 25, 2016 Plaintiffs
filed

another

Motion

for

Reconsideration

(Rec.

Doc.

652)

challenging this Court’s July 19, 2016 Order. Plaintiff’s Motion
for Reconsideration challenging this Court’s July 19, 2016 order
is the presently before the Court on the briefs.
PARTIES’ ARGUMENTS
Plaintiffs argue that this Court committed a manifest error
of fact in its July 19, 2016 Order (Rec. Doc. 651) when it held
that the Court’s September 11, 2013 Order considered Mr. J. Brian
Kelley’s 1 affidavit but nevertheless found that no genuine issue
of material fact existed. Id. at 1. Specifically, Plaintiffs argue
that Mr. Kelley’s affidavit was not submitted until April 25, 2016,
and thus could not have been considered by the Court’s September
11, 2013 Order. Id. In all, Plaintiffs argue that Mr. Kelley’s
affidavit establishes that he paid a usurious fee and thus has
standing to seek injunctive and monetary relief against Rotunda.
Id. at 3. Accordingly, Plaintiffs argue that Rotunda’s Second
Motion for Summary Judgment should not have been granted.

1

Mr. Kelley is the registered agent for MTB Properties, LLC. (Rec. Doc. 641-2
at 1.)

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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). However, the Fifth
Circuit has consistently recognized that parties may challenge a
judgment or order under Federal Rules of Civil Procedure 54(b),
59(e), or 60(b). S. Snow Mfg. Co., Inc. v. Snowizard Holdings,
Inc., 921 F. Supp. 2d 548, 563-64 (E.D. La. 2013); 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). Rules 59 and 60, however, apply
only to final judgments. Snowizard, 921 F. Supp. 2d at 563-564.
“Therefore, when a party seeks to revise an order that adjudicates
fewer than all the claims among all of the parties, Federal Rule
of Civil Procedure 54(b) controls.” Id. (citing Halena Labs. Corp.
v. Alpha Sci. Corp., 483 F. Supp. 2d 538 (E.D. Tex. 2007)). The
difference between a Rule 60(b) and 59(e) motion is based on
timing. If the motion is filed within twenty-eight days of the
final 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 final 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(b). Rule 54 sets forth no such time limitations. Fed.
R. Civ. Pro. 54(b); Lightfoot v. Hartford Fire Ins. Co., No. 075

4833, 2012 WL 711842 (E.D. La. Mar. 5, 2012); Snowizard, 921
F.Supp.2d at 563-64; but see Zapata Gulf Marine Corp. v. Puerto
Rico Marine Shipping Auth., 925 F.2d 812, 815 (5th Cir. 1991)
(discussing a “no just reason for delay” exception).
The general practice of courts in this district has been to
evaluate Rule 54(b) motions to reconsider under the same standards
that govern Rule 59(e) motions to alter or amend a final judgment.
Snowizard, 921 F.Supp.2d at 565 (citing Castrillo v. Am. Home
Mortg. Servicing, Inc., No. 09-4369, 2010 WL 1424398, at *4 (E.D.
La. April 5, 2010)(citations omitted)). Altering or amending a
judgment

under

Rule

59(e)

is

an

“extraordinary

remedy”

used

“sparingly” by the courts. Templet, 367 F.3d at 479. The general
practice of courts in this district has been to evaluate Rule 54(b)
motions to reconsider under the same standards that govern Rule
59(e) motions to alter or amend a final judgment. Snowizard, 921
F. Supp. 2d at 565 (citing Castrillo, 2010 WL 1424398, at *4
(citations omitted)). Altering or amending a judgment under Rule
59(e) is an “extraordinary remedy” used “sparingly” by the courts.
Templet, 367 F.3d at 479.
Courts have noted that motions to reconsider or amend a final
or partial judgment are 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;
Snowizard, 921 F.Supp.2d at 565. Also, such motions should not be
6

used to “re-litigate prior matters that . . . simply have been
resolved to the movant’s dissatisfaction.” See Voisin v. Tetra
Techs., Inc., No. 08-1302, 2010 WL 3943522, at *2 (E.D. La. Oct.
6, 2010). Thus, to prevail on a motion under Rule 59(e) or 54(b),
the movant must clearly establish at least one of four factors:
(1) the motion is necessary to correct a manifest error of law,
(2) the movant presents newly discovered or previously unavailable
evidence, (3) the motion is necessary in order to prevent manifest
injustice, or (4) the motion is justified by an intervening change
in controlling law. Snowizard, 921 F. Supp. 2d at 565; Schiller,
342 F.3d at 567; Ross v. Marshall, 426 F.3d 745, 763 (5th Cir.
2005). To prevail on a motion under Rule 60(b), the movant must
clearly establish one of six factors: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence
that, with reasonable diligence, could not have been discovered in
time

to

move

for

a

new

trial

under

Rule

59(b);

(3)

fraud,

misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released or
discharge; it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief. Fed. R.
Civ. P. 60(b).

7

DISCUSSION
This Court misstated in its July 19, 2016 Order that this
Court’s September 11, 2013 Order (Rec. Doc. 275) considered Mr.
Kelley’s affidavit. (Rec. Doc. 651 at 8-9.) However, the Court’s
June 7, 2016 Order which dismissed Rotunda from this lawsuit
remains sound. As explained in this Court’s previous orders,
Plaintiffs did not seek reconsideration of the Court’s September
11, 2013 Order which dismissed Plaintiff’s usury claims against
Rotunda. (Rec. Doc. 275 at 7.) Further, Mr. Kelley’s affidavit
does not create a genuine issue of material fact precluding summary
judgment in favor of Rotunda. Mr. Kelley’s affidavit states that
he merely reviewed the same ledgers this Court has already analyzed
in

its

previous

orders.

Despite

Plaintiffs’

suggestion,

Mr.

Kelley’s affidavit is not “new evidence” which creates an issue of
fact. See Lechuga v. So. Pac. Transp. Co., 949 F.2d 790, 798 (5th
Cir. 1991 (“Conclusory statements in an affidavit do not provide
facts that will counter summary judgment evidence. . . .”); U.S.
v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001) (holding that
without documentary evidence of payment of a loan, a non-movant
party’s self-serving affidavit stating that the loan was paid was
not the type of ‘significant probative evidence’ required to defeat
summary judgment). Moreover, Plaintiffs offer no other evidence
proving that a late payment occurred during the requisite period.
Plaintiffs have not cited to a change in controlling law, have not
8

presented any newly discovered or previously unavailable evidence,
nor shown that this Court’s June 7, 2016 Order committed a manifest
error of law or fact. Therefore, all claims asserted against
Rotunda in this lawsuit have been eliminated.
CONCLUSION
Accordingly,
IT

IS

HEREBY

ORDERED

that

Plaintiffs’

Motion

for

Reconsideration (Rec. Doc. 652) is DENIED.
IT IS FURTHER ORDERED that all claims against Defendant The
Rotunda Condominiums Homeowners Association, Inc. are DISMISSED.
New Orleans, Louisiana, this 15th day of August, 2016.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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