Eller v. Law Offices of Fishman & Townley, P.C. et al

Filing 21

ORDER DENYING 17 Plaintiff's Motion for Reconsideration. Signed by District Judge Terrence G. Berg. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SARAH ELLER,
v.

Plaintiff,

Case No. 13-11192

LAW OFFICES OF FISHMAN
& TOWNLEY, P.C., et al.,

HON. TERRENCE G. BERG
HON. LAURIE J. MICHELSON

Defendants.
/

ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION
This matter is before the Court on Plaintiff Sarah Eller’s November 11, 2013
motion for reconsideration (Dkt. 17) of the Court’s October 29, 2013 order granting
leave to amend the complaint. Having reviewed the motion and accompanying
exhibits, and the remainder of the record, the Court finds that these documents
adequately present the issues now before the Court, and that oral argument would
not aid the decision. Accordingly, the Court will decide the motion without a
hearing. E.D. Mich. LR 7.1(f)(2).
For the reasons set forth below, it is ORDERED that Plaintiff’s motion for
reconsideration (Dkt. 17) is DENIED.
I.

LEGAL STANDARD

Under Local Rule 7.1, the Court may grant a motion for reconsideration if the
movant satisfactorily shows: (1) the existence of a palpable defect that misled the
parties and the Court; and (2) the correction of such defect would result in a

different disposition of the case. E.D. Mich. L.R. 7.1(h)(3). A defect is palpable if it is
“obvious, clear, unmistakable, manifest, or plain.” Olson v. Home Depot, 321 F.
Supp. 2d 872, 874 (E.D. Mich. 2004). Further, the Court will not grant a motion for
reconsideration “that merely present[s] the same issues ruled upon by the court,
either expressly or by reasonable implication.” Id.
II.

ANALYSIS

Plaintiff makes essentially two interrelated arguments in support of her motion
for reconsideration of the Court’s denial of leave to add Marc Fishman as a
defendant: (1) the allegations in the complaint were adequate to state a claim
against Marc Fishman; and (2) Sixth Circuit case law, in particular Kistner v. Law
Offices of Michael P. Margelefsky, LLC, 518 F.3d 433 (6th Cir. 2008), provides that a
person in Fishman’s position may be liable for violations of the Fair Debt Collection
Practices Act regardless of whether he or she is personally involved in the alleged
violations of the Act. After carefully considering the arguments in Plaintiff’s motion
the Court is not persuaded that a palpable defect has been shown that would result
in a different disposition. Therefore, the Court will not alter or amend its previous
order.
Plaintiff’s first argument is that the Court erred in denying her request to add
Marc Fishman as a defendant because, Plaintiff now alleges, Fishman personally
provided “false, deceptive and/or misleading information to [Plaintiff]”1 when he
requested a writ of garnishment against Plaintiff’s income tax refund. (Dkt. 17 at 3–

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The language of the Act is “false, deceptive, or misleading.” 15 U.S.C. § 1692e (emphasis added).

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6.) As a threshold matter, this argument must fail because these facts concerning
Fishman’s conduct were not alleged in the amended complaint.2 (Dkt. 15.) Because
these facts were not alleged, the Court need not address the other reasons the
argument fails. Nevertheless, the Court notes that the garnishment was signed by
Marc Fishman on June 26, 2012, and issued by the Court on September 17, 2012
(Dkt. 17, Ex. A). These actions by Fishman occurred well before Plaintiff’s debts
were allegedly discharged in bankruptcy, creating a question as to whether the
communication was in fact “false, deceptive, or misleading,” 15 U.S.C. § 1692e.
Plaintiff must allege that Fishman made a communication that was “false,
deceptive, or misleading,” but these new facts do not amount to a plausible
allegation that he made such a communication.
The second of Plaintiff’s arguments is that, under Kistner, Fishman may be held
liable simply because he is “in charge of a debt collection entity’s policy making[]
[and] management and policy decisions.” (Dkt. 17 at 6–7.) This reading of Kistner is
incorrect.
Kistner held in pertinent part that “subjecting the sole member of an LLC to
individual liability for violations of the FDCPA will require proof that the individual
is a ‘debt collector,’ but does not require piercing of the corporate veil.” Kistner, 518
F.3d at 437–38. The Court’s previous order is not in conflict with this point of law.
Contrary to Plaintiff’s argument, Kistner did not hold that a sole member of an
LLC, or a managing partner or anything of the sort, could be held personally liable

The closest Plaintiff comes to alleging these facts in the amended complaint is paragraph 14—“[t]he
Garnishment was obtained by Fishman and/or FGPC and/or FTPC.” But Plaintiff’s use of “and/or”
twice, without punctuation or additional explanation, drains the allegation of any real meaning.
2

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for violations of the FDCPA simply because of holding a management position. The
Kistner court specifically noted Margelefsky’s personal involvement in certain of the
alleged violations of the law, and held that “Margelefsky’s alleged liability is not
premised solely on the fact that he works for, and is the sole member of, the Law
Offices.” Id. at 438. The individual defendant in Kistner, Mr. Margelefsky,
performed a number of specific acts related to the alleged violations, including: (1)
he regularly engaged, directly and indirectly, in the collection of debts; (2) he
drafted the form letter that was sent to the Plaintiff and the subject of the suit; (3)
he negotiated the terms with the mailing service provider; and (4) the remittance
voucher directed the plaintiff to pay the amount due to Margelefsky personally.3 Id.
As explained in the previous order, Plaintiff’s allegations are insufficient. (Dkt. 15.)
III.

CONCLUSION

For the reasons set forth above, it is ORDERED that Plaintiff’s motion for
reconsideration (Dkt. 17) is DENIED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: December 4, 2013
Certificate of Service
I hereby certify that this Order was electronically submitted on December 4, 2013, using
the CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager

The factual differences are important as well. Kistner was a putative class action in which it was
alleged that the firm and Margelefsky sent a very large number of form letters to thousands of
debtors and that those letters violated the FDCPA. Thus, Margelefsky’s involvement in the
development of that collection practice was determinative. Here, where there is essentially one
complained of action that was, according to the allegations, not made by Fishman and not even
brought to Fishman’s attention, the factors to consider are necessarily less broad.
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