DANIEL BOCK, JR. v. PRESSLER AND PRESSLER, LLP
OPINION. Signed by Judge Kevin McNulty on 10/19/17. (sr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DANIEL BOCK, JR.,
Civ. No. 11-7593 (KM) (SCM)
PRESSLER & PRESSLER, LLP,
KEVIN MCNULTY, U.S.D.J.:
Before the court is the motion (ECF no. 100) of the defendant, Pressler
and Pressler, LLP (“Pressler”), pursuant to Loc. Civ. 1?. 7.1(i), Fed. I?. Civ. P.
59(e), and Fed. R. Civ. P. 60(b)(2), to reconsider, alter, or otherwise amend the
Court’s award of summary judgment to the plaintiff, Daniel Bock, Jr. (For
convenience, I will refer to it as a “motion for reconsideration.”) For the reasons
stated herein, the motion is denied.
Familiarity with my prior written opinions in this action is assumed. In
particular, I do not repeat the facts or analysis in my original opinion granting
summary judgment to the plaintiff, Bock (ECF no. 59 [as amended ECF nos.
61, 62], cited as
or my opinion on remand, finding that the plaintiff
possessed Article III standing and reinstating summary judgment (ECF no. 97,
cited as “Remand Op.”).
In this action, Bock alleged that Pressler made false or misleading
representations in violation of the Fair Debt Collections Practice Act (the
“FDCPA’9, 15 U.S.C.
§ 1692e. On June 30, 2014, I filed an exhaustive opinion
on the merits (“Op.”), denied Pressler’s summary judgment motion, and granted
Bock’s summary judgment motion. I entered judgment for Bock in the amount
of $1000. (ECF no. 67)
Pressler appealed. On appeal, the United States Court of Appeals for the
Third Circuit sua sponte raised the issue of Bock’s Article III standing in light of
the intervening case of Spokeo, Inc. u. Robhins, 136 5. Ct. 1540 (2016), decided
by the Supreme Court after my decision but while the Third Circuit appeal was
pending. Bock v. Pressler & Pressier, LLP, 658 F. App’x 63 (3d Cir, 2016). The
Third Circuit remanded the case so that this Court could determine in the first
instance whether Bock’s alleged harm was sufficiently concrete and
particularized to satisfy the injury-in-fact requirement for Article III standing
that was enunciated in Spokeo. JO. at 65.
On remand, I authorized supplemental briefing on the subject of Spokeo
and standing (ECF no. 82). The parties briefed the matter. ((ECF nos. 85, 86,
87, 88, 89, 93, 96)
On May 25, 2017, I filed an Opinion (ECP no. 97) holding that Bock had
established Article Ill standing. I simultaneously entered an order (ECF no. 98)
that the summary judgment motion of Bock again be granted, and that of
Pressler denied, “for the reasons stated in the Court’s prior Opinion (ECF no.
59).” I further ordered that “Judgment in the amount of $1000 shall again be
entered in favor of Plaintiff, in substantially the same form as the prior
Judgment (ECF no. 67), updated to include subsequent procedural history.”
(ECF no. 98) Accordingly, also on May 25, 2017, I re-entered final judgment on
substantially the same terms as before. (See ECF no. 99)
SCOPE OF REMAND AND OF RECONSIDERATION
A. Implementation of the Court of Appeals’ Mandate
Before reaching the merits of Pressler’s motion, it is necessary to clarify
this Court’s view of its task on remand. The Court of Appeals never reached the
merits of Pressler’s appeal from my original grant of summary judgment, but
remanded for a jurisdictional determination. I therefore consider whether,
consistent with the Court’s mandate, I must, or even may, accept Pressler’s
invitation to revisit the merits of the summary judgment motion.
In light of the intervening Spokeo decision, the Court of Appeals sua
sponte raised the issue of Article III standing. Its opinion, after reviewing the
applicable law on standing, concluded as follows:
Qiven the Supreme Court’s directive in Spokeo regarding the
need for a court to specifically address concreteness and
particularization, we will remand this case to the District court to
determine in the first instance whether Bock has Article III
5 (copy filed at ECF no. 74-2, reported as Bock v. Pressler &
Pressler, LLP, 658 F. App’x 63 (3d Cir. 2016)).
The formal judgment, which also constitutes the appellate court’s
mandate, stated as follows:
IT IS ORDERED AND ADJUDGED BY THIS COURT that
the judgment of the District Court entered December 4, 2014, be
and the same is hereby vacated and remanded to the District court
for further proceedings consistent with this Opinion.
(3d Cir. Judgment and Mandate (copy filed at ECF no. 74))
[A] district court must adhere to the mandate and the law of the
case as it is established on appeal. Bankers Thist Co. v. Bethlehem
Steel Corp., 761 F.2d 943, 949 (3d Cir.1985). At the same time, a
district court is free to decide any issue that was not explicitly or
implicitly decided on a prior appeal. See Quem u. Jordan, 440 U.S.
332, 347 n. 18, 99 5. Ct. 1139, 1148 n. 18, 59 L.Ed.2d 358 (1979);
Sprague u. Ticonic Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 780, 83
L.Ed. 1184 (1939); Bankers Trust Co., supra, 761 F.2d at 950.
Taylor v. United States, 815 F.2d 249, 252 (3d Cir. 1987).
Here, the Court of Appeals did not reach the merits of the prior summary
judgment order, and did not explicitly or implicitly rule on the substantive
issues presented by Pressler’s appeal. Rather, in light of intervening Supreme
Court authority, it raised an issue as to whether the plaintiff had possessed
Article III standing to pursue his claim in the first place. It remanded for a
determination on that standing issue. All the mandate required, then, was that
this Court make a determination as to the plaintiff’s standing. III did not find
standing, that would of course end the matter; such a ruling would imply that
the court does not have, and never had, subject matter jurisdiction.
The question here arises from the alternative outcome, in which I did find
standing (as in fact I did). The Court of Appeals vacated the original judgment;
obviously it could not stand or remain enforceable for so long as there was a
cloud on this court’s subject matter jurisdiction. So at a minimum, having
found that the court had jurisdiction, I was required to (and did) re-enter
judgment to restore the status quo. That is the narrowest view of the mandate:
that this Court should do no more than remove the jurisdictional cloud on its
prior judgment, and reinstate that judgment. That was a permissible course of
It was not, however, the only permissible course of action. Nothing about
the mandate of the Court of Appeals constrains this Court as to the
substantive merits. I may, then, entertain Pressler’s motion for reconsideration
to the same extent I could have done if the jurisdictional issue had not
intervened. Insofar as this motion is concerned, the mandate is transparent.
B. Scope of Reconsideration Motion
A motion under Local Rule 7.1(i), Rule 59(e), or Rule 60(b)(2) would
ordinarily require a substantial threshold showing before a court will consider
reopening matters already decided. See infra. Because the procedural context is
somewhat convoluted, however, I must clarify what is being “reconsidered.” In
particular, I state that Pressler will not be procedurally disadvantaged for
having asserted these substantive grounds in a motion filed after, rather than
before, May 25, 2017, the date I re-entered judgment on remand.
While my decision on remand was pending, Pressler’s counsel filed a
letter (“Supplemental Letter”, ECF no. 90) proffering new substantive (i.e., non
standing) arguments. The Supplemental Letter argued that the court had
“reversed the burden of proof’ in its original summary judgment ruling, and
that the FDCPA, at least as applied by the Court, would violate the Noerr
Pennington doctrine. The letter also attached “new evidence” in the form of an
expert report by Prof. Michael Ambrosio. Reasonably, the Supplemental Letter
proposed that nothing further be filed on those issues unless and until the
Court found that it possessed subject matter jurisdiction.
In response, I entered a text order stating that I would decide first
whether the Court possessed subject matter jurisdiction under Spokeo. (ECF
no. 92) That text order also provided that “any reopening of discovery or
supplementation of the earlier summary judgment record will not be granted as
a matter of course, but must be sought by motion.” (Id.)
It was presumably in response to my text order that Pressler filed the
current motion for reconsideration. (ECF no. 100) In it, Pressler seeks to
reopen the judgment and assert the additional substantive arguments that
were raised in its Supplemental Letter. I accept that it was not practical for
such a motion to be filed in advance of my ruling on standing, and I accept the
Supplemental Letter as a sufficient reservation of Pressler’s position. I will
therefore consider this motion on its own terms—i.e., nunc pro tune, as if it had
been filed at the time of the Supplemental Letter—without imposing any
additional threshold barrier to consideration.
That said, the motion (even considered nunc pro tune) does seek
reconsideration of matters decided in 2014, in connection with the original
summary judgment ruling. It therefore does implicate law of the case doctrine
and the standards for reconsideration of a previously entered order.
On remand, by re-entering judgment on the same basis as before, I
intended to incorporate and preserve the grounds that Pressler raised in
opposition to Bock’s original motion for summary judgment motion, which I
granted in 2014. Such grounds, I believe, are fair game on any subsequent
appeal. As to Pressler’s newly-asserted grounds, however, the narrow issue is
whether the court should deny reconsideration, or hew to the law of the case. It
is on that basis that I analyze Pressler’s current motion.
A. Motion to Reconsider or Amend Order or Judgment
A motion under Local Rule 7.1(i) or Rule 59(e) to reconsider, alter, or
amend a judgment or order is granted sparingly, generally only in one of three
situations: (1) when there has been an intervening change in the law; (2) when
new evidence has become available; or (3) when necessary to correct a clear
error of law or to prevent manifest injustice. See North River Ins. Co.
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995) (reconsideration motion);
Carmichael v. Everson, 2004 WL 1587894 (D.N.J. May 21, 2004)
(reconsideration motion); Blystone v. Horn, 664 F.3d 397, 4 15—16 (3d Cir.
2011) (Rule 59(e) motion) (citing Howard Hess Dental Labs., Inc. v. Dentsply
Int1 Inc., 602 F.3d 237, 251 (3d Cir. 2010)).
Evidence or arguments that were available at the time of the original
decision will not support a motion to reconsider or amend an order. Damiano v.
Sony Music Entm’t, Inc., 975 F. Supp. 623, 636 (D.N.J. 1997) (reconsideration
motion); Bapu Corp. v. Choice Hotels Int’l, Inc., 2010 WL 5418972, at
Dec. 23, 2010) (reconsideration motion) (citing P. Schoenfeld Asset Mgmt. LLC v.
Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001)). Newly presented
evidence, in particular, will not be considered if it was or reasonably could have
been available at the time of the original motion:
We have made clear that “new evidence,’ for reconsideration
submits to the
purposes, does not refer to evidence that a party
court after an adverse ruling. Rather, new evidence in this context
means evidence that a party could not earlier submit to the court
because that evidence was not previously available.” [quoting
Howard Hess Dental Labs., Inc. v. Dentsply Int’l Inc., 602 F.3d 237,
252 (3d Cir.2010fl Evidence that is not newly discovered, as so
defined, cannot provide the basis for a successful motion for
reconsideration. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d
Blystone, 664 F.3d at 4 15—16. A reconsideration motion must be filed within 14
days, and a Rule 59(e) motion to amend within 28 days, after the entry of the
challenged order. Loc. Civ. R. 7.1(i); Fed. R. Civ. P. 59(e).
Rule 60(b)(2), also cited in Pressler’s motion, authorizes a motion for
relief from a judgment or order “based on newly discovered evidence that, with
reasonable diligence, could not have been discovered in time to more for a new
trial under Rule 59(b).” “The ‘standard for granting relief on the basis of newly
discovered evidence’ is ‘the same’ whether relief is sought under Rule 60(b)(2)
or pursuant to a motion for a new trial under Rule 59
Colyer u. Consol.
Rail Corp., 114 F. Appx 473, 480 (3d Cir. 2004) (quoting Compass Tech., Inc. v.
Tseng Labs., Inc., 71 F.3d 1125, 1130 (3d Cir. 1995)). That standard, most
commonly stated in relation to a motion for a new trial, is as follows:
[It] requires that the new evidence (1) be material and not merely
cumulative, (2) could not have been discovered before trial through
the exercise of reasonable diligence and (3) would probably have
changed the outcome of the trial (Bohus v. Beloff, 950 F.2d 919,
930 (3d Cir.1991)). Any party requesting such relief “bears a heavy
burden” (Id., quoting Plisco a Union R. Co., 379 F.2d 15, 17 (3d
Compass Tech., 71 F.3d at 1130. A Rule 60(b)(2) motion must be brought
within one yeas after the entry of the judgment or order that is challenged. Fed.
R. Civ. P. 60(c)(1).
B. Law of the Case
Also implicated by Pressler’s motion, though not cited by any party, is
the law-of-the-case doctrine. That doctrine, as applicable here, governs serial
decisions by the same court in the same case: “As most commonly defined, the
doctrine posits that when a court decides upon a rule of law, that decision
should continue to govern the same issues in subsequent stages in the same
case.” Arizona u. California, 460 U.S. 605, 618, 103 S. Ct. 1382 (1983). The
doctrine “‘limits relitigation of an issue once it has been decided’ in an earlier
stage of the same litigation.” Hamilton
Leavy, 322 F.3d 776, 786 (3d Cir.
2003) (quoting In re Continental Airlines, Inc., 279 F.3d 226, 232 (3d Cir.
2002)). The doctrine is designed to “promote finality, consistency, and judicial
economy.” Id. at 787. Accord Farmer p. Lanigan, No. CV 12-5716 (SDW), 2016
WL 4107693, at *3 (D.N.J. Aug. 1, 2016); see also United States cx rd. Petratos
v. Genentech Inc., 855 F.3d 481, 493 (3d Cir. 2017).
Unlike the more rigid post-judgment rules of res judicata, the law of the
case doctrine is directed to the court’s exercise of its discretion to reconsider
issues during a pending case. Motamed v. Chubb Corp., No. 15-7262, 2016 WL
45814og, at*3 (D.N.J. Sept. 1,2016) (citing Public Interest Research Group of
N.J., Inc. u. Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir. 1997)). Thus,
for example, a court may opt to revisit a legal issue already decided where “(1)
there has been an intervening change in the law; (2) new evidence has become
available; or (3) reconsideration is necessary to prevent clear error or a
manifest injustice.” Minard Run Oil Co. u. U.S. Forest Seru., 549 F. Appx 93, 98
(3d Cir. 2013) (quoting ACLU v. Mukasey, 534 F.3d 181, 188 (3d Cir. 2008)
(quoting Council of Alternative Political Parties v. Hooks, 179 F.3d 64, 69 (3d
Cir. 1999)). These three factors, of course, are familiar; they duplicate those
cited under Local Rule 7.1 or Rule 59(e). Nevertheless, the law of the case
doctrine reserves to the Court a broader measure of discretion to reconsider its
own decisions. See United States cx reL Petratos v. Genentech Inc., 855 F.3d
481, 493 (3d Cir. 2017) (citing Williams v. Runyon, 130 F.3d 568, 573 (3d Cir.
1997)). The court is not obligated to persist in a mistake.
DISCUSSION OF MERITS
Pressler’s motion rests on two of the three standard grounds for
reconsideration.1 Pressler proffers
The third ground, an intervening change in the law, is not pressed here. There
is of course one such intervening change in the law: the Supreme Court’s decision on
standing in Spokeo, which was filed after my original summary judgment decision.
Spokeo, however, has been dealt with separately, in my most recent Opinion on
remand (ECF no. 97).
(A) a clear error of law, in that the court improperly shifted the burden of
proof on summary judgment;
(B) new evidence, in the form of an expert report by Professor Michael
(C) manifest injustice, in that the Court’s interpretation of FDCPA
violates the First Amendment right of petition under the Noerr-Pennington
I consider those contentions in order.
Shifting the Burden of Proof
The claim that the Court, in awarding summary judgment to Bock,
“shifted the burden of proof’ is something of a miscue. Pressler does not mean
that the Court miscited or misapplied the standards governing summary
judgment under Fed. R. Civ. P. 56, which are well-settled. See op. s—g (citing,
e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 322—23, 106 S. Ct. 2548 (1986)). Rather,
Pressler argues that, as a matter of State law, the plaintiff could not prevail
without marshaling expert opinion testimony, and that therefore the Court, by
awarding summary judgment to plaintiff, in effect reversed the burden of proof:
“‘Meaningful attorney involvement’ is a theory that pertains
only to lawyer debt collectors and not lay collectors, as the focus of
the theory is attorney involvement. However, “[als ‘the duties a
lawyer owes to his client are not known by the average juror,’
expert testimony must necessarily set forth that duty and explain
the breach.” Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 78,
935 A.2d 1236 (N.J. Super. Ct. App. Div. 2007) (quoting Stoeckel a
Twp. of Knowlton, 387 N.J. Super. 1, 14, 902 A.2d 930 (N.J. Super.
Ct. App. Div. 1990), ced. denied, 188 N.J. 489, 909 A.2d 724 (N.J
2006). Bock offered no expert testimony in support of his Rule 1:48 theory, thereby failing to meet his burden of proof. In granting
summary judgment to Bock, the Court has erroneously shifted the
burden of proof, requiring Defendant to negate facts on which
Plaintiff has offered no evidence.
(ECF no. 100-1, Brief in support of motion (“Pressler Brf.”) 3)
To this contention, there are two answers.
First, this argument should have been raised three years ago, in
response to the motion for summary judgment. At its heart it is a contention
that the plaintiff’s proofs lacked a critical element: expert opinion testimony. If
failure to require such expert testimony was a “clear error of law,” then the
need for such testimony, and its absence from plaintiffs presentation, should
have been equally clear to Pressler at the time. Pressler offers no justification
for failing to raise this argument before.2 On this basis alone, Pressler’s
argument is properly rejected; it is an insufficient basis for reconsideration of
the Court’s summary judgment ruling, or for departure from the law of the
Second, this argument, even if considered, would fail on its own terms.
By considering it in the alternative, however, I do not mean to suggest that this
argument was properly raised or preserved in connection with an appeal of my
earlier summary judgment ruling.
The cited case of Carbis, supra, has nothing to do with a debt collector’s
misrepresentation that “meaningful attorney review” preceded a
communication to the debtor. Rather, Carbis concerned the tort of attorney
negligence, also known as legal malpractice:
Legal malpractice is a variation on the tort of negligence.
establish legal malpractice, a plaintiff must show: “‘(1) the
existence of an attorney-client relationship creating a duty of care
upon the attorney; (2) the breach of that duty; and (3) proximate
As “the duties a lawyer owes to his client are not
known by the average juror,” expert testimony must necessarily set
forth that duty and explain the breach. Stoeckel v. Twp. of
Knowlton, 387 N.J. Super. 1, 14, 902 A.2d 930 (App. Div.), certif
denied, 188 N.J. 489, 909 A.2d 724 (2006)..
The awkward recasting of the argument as the court’s “reversal of the burden of
proof’ may be Pressler’s attempt to imply that it could not have been raised until after
the Court rendered its original summary judgment opinion. Nevertheless, if the failure
of proof was truly so glaring, it should have been noted by Pressler and argued to the
Court. I note that Pressler made no motion for reconsideration of the original order on
this or any other ground.
Carbis Sales, Inc., 397 N.J. Super. at 78, 935 A.2d at 1244—45.
This is not a state-law malpractice action by a client against that client’s
lawyer, alleging deficient performance. It is a federal-law FDCPA action by a
debtor against a debt collector who also happens to be the creditor’s lawyer,
alleging misrepresentation. Pressler cites no case holding that an FDCPA cause
of action regarding a misrepresentation of meaningful attorney involvement
requires expert testimony. Failure to cite or follow state-court rules of proof
regarding attorney malpractice is very far from being an error, let alone a clear
error, of law.3
Pressler proffers as “new evidence” a Declaration (ECF no. 100-2 at 1)
and Report (ECF no. 100-2 at 4 (“Ambrosio Report”) of Michael P. Ambrosio, a
professor at the Seton Hall University School of Law. Prof. Ambrosio, an
experienced practitioner and teacher with many publications to his credit, is
surely qualified to speak on matters of legal ethics. In his Report, he opines
that Pressler’s review process was “in accord with Mr. Gulko’s and the Pressler
firm’s professional obligations to clients and the requirement of the New Jersey
Rules of Professional Conduct and other law.” (Ambrosio Report 1)
Indeed, even in a malpractice case, expert testimony may be forgone where the
deviation from a reasonable standard of care is within a “layperson’s common
knowledge,” or an issue is “so basic that it may be determined by the court as a matter
of law.” E.a, Sommers a MeKinney, 287 N.J. Super. 1, 11,670 A.2d 99, 104 (App. Div.
1996) (no expert opinion required where attorney inadequately prepared, failed to
submit legal argument, and misrepresented state of case to client); Stewart a Sbarro,
142 N.J.Super. 581, 591, 362 A.2d 581 (App.Div.) (failure to execute and record bond
and mortgage), certzf denied, 72 N.J. 459, 371 A.2d 63 (1976); Fuschetti v. Bierman,
128 N.J. Super. 290, 295, 319 A.2d 781 (Law Div. 1974) (blowing statute of
limitations); cf Roper u. Blumenfeld, 309 N.J. Super. 219, 231, 706 A.2d 1151, 1156
(App. Div. 1998) (reviewing applicability of res ipsa loquitur in medical malpractice
Consider, for example, a case in which a client sued his attorney for
malpractice, claiming that the attorney gave his case only four seconds of attention
before filing the complaint. Such facts might well speak for themselves, or meet the
“common knowledge” standard for dispensing with expert testimony.
The Ambrosio Report is dated October 6, 2016; it came into existence
because Pressler retained Prof. Ambrosio to prepare it. Pressler states that it
constitutes “new evidence” because it was prepared after the Court granted
summary judgment and after the Court of Appeals remanded for consideration
of standing.4 This is not primary evidence, however, uncovered after some
exhaustive search; it is an expert opinion, created at a date of the defendant’s
choosing, I therefore do not find the date of preparation very significant in the
analysis of whether it constitutes “new evidence.” Under any of the standards
cited above, new evidence must be truly new; that is, it must be evidence that
the party did not obtain and could not reasonably have obtained in advance of
the original ruling. Prof. Ambrosio’s Report does not remotely qualify as new
evidence under that standard.
The Ambrosio Report analyzes the Pressler firm’s (and Mr. Qulko’s)
process for review of complaints. Those facts were well in hand at the time of
the original motion and ruling; indeed the summary judgment papers (and my
summary of them) are the source of the facts to which Prof. Ambrosio applied
his expertise. Prof. Ambrosio consciously and deliberately confined his analysis
to those facts, and introduced no new ones. It follows that if Pressler had
wished to retain an expert to opine on those (largely undisputed) facts, it could
have done so at the time of the summary judgment motion. Prof. Ambrosio’s
opinion also to some degree simply disagrees with the reasoning of my
summary judgment opinion. He opines, for example, that cases cited in
support of the ruling are distinguishable, and so on. While his learned analysis
deserves, and has received, a respectful reading, to call it “new evidence”
No implication should be drawn, however, that this Report bears on the basis
for the Court of Appeals’remand. The Report has nothing to do with the issue of
standing. The record will bear the interpretation that Pressler has opportunistically
taken advantage of a jurisdictional remand to salt the record with new substantive
issues in anticipation of a second appeal.
stretches the definition past the breaking point. This Report is not “new
evidence,” and on that basis I decline to consider it.
At any rate, the Report, if considered, would be unlikely to alter the Court’s
view. In so stating, I repeat that these grounds were were not raised or preserved in
connection with my prior summary judgment ruling. [fn. cont’d on next page]
First, the issue is not whether Pressler or Gulko violated standards of ethical
representation. At issue is the separate question of whether, under the FDCPA, they
impliedly misrepresented the level of attorney review in communications to the debtor.
That is not a matter of attorney ethics, but a matter of how a debtor would interpret
the communication. (See op. 10—24.) Court rules require that attorneys reasonably
investigate, but such rules are not rooted in any concern that the mere hint of
attorney involvement will up the ante or intimidate the court. Compare Op. 12—13
(citing, e.g., Avila v. Rubin, 84 F.3d 222 (7th Cir. 1996) (Finding FDCPA violation, in
part because “[a]n unsophisticated consumer, getting a letter from an ‘attorney,’
is better positioned
knows the price of poker has just gone up.
Thus I ani wary of any simplistic equation
to get the debtor’s knees knocking.”))
between ethical rules and the dictates of the FDCPA.
Second, and relatedly, although my Opinion cited rules of court (Fed. R. Civ. P.
11(b) and N.J. R. Ct. 1:4-8(a)), I was careful to cite them as a guide, and to hold that
the FDCPA does not “incorporate rules of court by reference or create a private cause
of action for their violation.” (Op. 19)1 did not simply incorporate the court rules, but
articulated a standard:
“Accordingly, I hold that a signed complaint is inherently false and
misleading, in violation of 15 U.S.C. l692e, where, at the time of signing, the
attorney signing it has not
1) drafted, or carefully reviewed, the complaint; and
2) conducted an inquiry, reasonable under the circumstances, sufficient
to form a good faith belief that the claims and legal contentions in the
complaint are supported by fact and warranted by law.”
(Op. 23) That standard, I felt, comported with what a debtor had a right to infer from
the attorney’s fifing of a criminal complaint. The standard was somewhat less detailed
and prescriptive than the one developed by Judge Mauskopf, because I felt that the
standard should be elaborated “case-by-case.” (Op. 23
Third, the materials before the Court permitted me to rule on summary
judgment as a matter of law. The sources cited by Prof. Ambrosio (e.g., ABA ethical
standards, the New Jersey RPC, and reported cases) are ordinary sources of law that a
court is competent to assess and apply to a largely agreed-upon set of facts. If issues
of fact had required that the case go to ajury of laypersons, expert testimony might
have been offered, but the case did not get to that stage.
Finally, it is not accurate to state, as Pressler does, that “[m]eaningful attorney
involvement’ is a doctrine applied solely to attorney debt collectors[, which] is a
reflection of rules of professional conduct that limit the delegation of tasks without
attorney oversight and supervision.” (Pressler Brf. 4, citing Ambrosio Report) To
Finally, Pressler argues that the summary judgment ruling should be
overturned on grounds of “manifest injustice.” The Court’s application of
FDCPA to court filings, says Pressler, infringes on its First Amendment right “to
petition the Government for a redress of grievances.” U.S. Const. amend. I. In
particular, Pressler invokes the Noen—Pennington doctrine. See Eastern Railroad
Presidents Conference v. Noen- Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523
(1961); United Mine Workers v. Pennington, 381 U.S. 657, 85 5. Ct. 1585
(1965). See also Mariana v. Fisher, 338 F.3d 189, 199 (3d Cir. 2003) (no
antitrust liability for seeking government action that would disadvantage a
Although the doctrine originated in the antitrust context, it has
been extended on a limited basis “to offer protection to citizens’
petitioning activities in contexts outside the anti-trust area as
well.” We, Inc. v. City of Philadelphia, 174 F.3d 322, 326-27 (3d Cir.
1999); see also BE&KConst. Co. v. N.LR.B., 536 U.S. 516 (2002)
(applying the doctrine to the National Labor Relations Act);
Brownsville Golden Age Nursing Home, Inc v. Wells, 839 F.2d 155,
160 (3d Cir. 1988) (doctrine applied to tort liability for actions
based on petitions to the government to shut down a nursing home
that was in violation of various regulations).
Ontel Prods. Corp. a Zum Ltd., No. 17CV3658PGSLHG, 2017 WL 4444198, at
*2 (D.N.J. Oct. 5, 2017).
Once again, the claimed injustice, although supposedly “manifest,” does
not seem to have occurred to Pressler in connection with the litigation of the
summary judgment motions. The Court, within its discretion, is not inclined to
entertain this argument, made three years after the fact and assertable only
repeat, “meaningful attorney involvement” is the subject matter of the
misrepresentation; the entity making the misrepresentation is liable by virtue of being
a debt collector, not a lawyer. More to the point, the permissible scope of delegation is
not the gist of the misrepresentation; the FDCPA penalizes misrepresentations as to
whether the attorney has personally been involved.
through the happenstance of a remand to ensure that the plaintiff possessed
In the alternative, however, I briefly discuss the substance of the Noerr
Pennington argument, without implying that this unraised argument could
have played any part in my earlier summary judgment ruling.
Pressler relies primarily on Hemmingsen v. Messerli & Kramer, P.A., 674
F.3d 814, 817-20 (8th Cir. 2012). Hemmingsen merely rejected the proposition
that the FDCPA was violated whenever a court rejected the creditor’s position
in a collection suit. The court had several rationales for its holding, one of
which was that it was “consistent with the principle” that access to the courts
is “an aspect of the First Amendment right to petition the Government.” Id. at
819. The court also held that the statements at issue were not false or
misleading. Although the creditor’s position failed on summary judgment, the
court held that “we do not see how the fact that a lawsuit turns out ultimately
to be unsuccessful could, by itself, make the bringing of it an ‘action that
cannot legally be taken.”’ Id. at 820 (quoting Heintz v. Jenkins, 514 U.S. 291,
295—96, 115 S. Ct. 1489 (1995)). Here, by contrast, the allegation is that the
communication of the complaint to the plaintiff was itself wrongful—Le.,
misleading and unconscionable because it carried the implied
misrepresentation of attorney review.
I conclude that Hemmingsen does not stand for any broad principle
that the First Amendment bars any FDCPA claim based on litigation-related
communications. Many cases have so held; typical of these is Wise v. Zwicker &
The defendants argument that the Noen—Pennington doctrine
limits the application of the PDCPA to their activities is inapposite.
The FDCPA specifically includes lawyers and litigation activities
within its purview. See Heintz v. Jenkins, 514 U.S. 291, 115 S. Ct.
1489, 131 L.Ed.2d 395 (1995). The defendants present no cases in
which a court has applied the Noerr—Pennington doctrine to FDCPA
claims. In fact, this circuit has already rejected Noerr—Pennington
protection for false statements in a debt-collector’s complaint,
recognizing that the Petition Clause does not protect “sham
petitions, baseless litigation, or petitions containing ‘intentional
and reckless falsehoods.’” Hartman v. Great Seneca Fin. Corp., 569
F.3d 606, 616 (6th Cir.2009) (quoting McDonald a Smith, 472 U.s.
479, 484, 105 S. Ct. 2787, 86 L.Ed.2d 384 (1985)).
780 F.3d 710, 719 n.5 (6th Cir. 2015) (demand for attorney’s fees in
complaint’s prayer for relief), cert. denied, 136 S. Ct. 793, 193 L. Ed. 2d 709
Satre u. Wells Fargo Bank, NA, 507 F. App’x 655 (9th Cir. 2013), is not to
the contrary. There, the Court of Appeals held only that “[tihe district court
See also Consumer Financial Protection Bureau v. Frederick J. Hanna &
Nonetheless, several courts have considered and rejected the argument
that the Noerr—Pennington doctrine extends even further to FDCPA
claims brought against debt-collectors based on litigation activity. See
Wise v. Zwicker&Assoc., P.C., 780 F.3d 710 n. 5(6th Cir.20l5); Basile u.
Blatt Hasenmiller, Leibsker & Moore LLC, 632 F.Supp.2d 842, 845—46
(N.D.lll.2009) (collecting cases). These courts rely on the Supreme
Courts holding in Heintz, “which contemplated attorney liability under
the FDCPA.” BasUe, 632 F. Supp.2d at 846 (citing Heintz v. Jenkins, 514
U.s. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995)). As noted above, in
Heintz. the United States Supreme Court held that the FDCPA “applies to
attorneys who ‘regularly’ engage in consumer-debt-collection activity,
even when that activity consists of litigation.” Heintz, 514 U.S. at 299,
115 S.Ct. 1489. The Supreme Court has reaffirmed this principle as
recently as 20 10 in Jennan. See Jet-man t.c Carlisle, McNellie, Rini, Kramer
& LRrichLPA, et aL, 559 U.S. 573, 130 S.Ct. 1605, 176 L.Ed.2d 519
(2010) (holding that a law firm subject to the FDCPA for its litigation
activity is not entitled to the bona fide error defense of 15 U.S.C. §
1692k(c) for a mistake of law). And in neither Jet-man nor Heintz did the
Court express a Noerr—Pennington concern. As the Bureau points out,
“not a single court in the Eleventh Circuit has ever applied Noerr—
Penninyton to bar an FDCPA claim.” (Resp. at 12 (citing Roban v.
Marinosci Law Grp., 34 F.Supp.3d 1252, 1255 (S.D.Fla.2014) (“Deutsche
Bank and Marinosci Law failed to cite to a single case from the Eleventh
Circuit that extends the Noerr—Pennington doctrine to claims brought
under the FDCPA. The Court could not find any in its independent
research.”)).) Moreover, the Eleventh Circuit’s recent decision in Miljkouic
re-emphasized its recognition of the FDCPA’s protection of consumers
from the full sweep of debt collectors’ attorneys’ false, misleading, or
deceptive litigation activities.
114 F. Supp. 3d 1342, 1359—60 (N.D. Ga. 2015).
properly determined that Wechsler is immune from FDCPA liability under the
Noerr—Pennington doctrine because the Satres’fl factual allegations in their
amended complaint failed to establish that Wechsler, who was defending his
client from litigation initiated by the Satres, was a ‘debt collector.tm See 15
§ 1692a(6). Thus Satre has little to say about the interplay between an
FDCPA violation and the Noen—Pennington doctrine, because it prefaced its
holding with a finding that the prohibitions of the FDCPA did not apply at all.
In sum, even if I were inclined to entertain this belated citation of Noerr
Pennington, could not find that Pressler has identified an error of law, let alone
a clear error or manifest injustice.
For the foregoing reasons, I conclude that Pressler has not proffered
sufficient grounds for the court to alter or amend its prior orders, or to depart
from the law of the case. Pressler’s motion for reconsideration (ECF no. 100) is
An appropriate Order accompanies this Opinion.
Dated: October 19, 2017
H N. KEVIN MCNULTY, U.S.)
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