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Michael P. Koby, An Individual, Et. Al v. Ars National Services

December 22, 2010

MICHAEL P. KOBY, AN INDIVIDUAL, ET. AL.,
PLAINTIFF,
v.
ARS NATIONAL SERVICES, INC.,
A CALIFORNIA CORPORATION, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: John A. HOUSTONUnited States District Judge

ORDER GRANTING DEFENDANT'S MOTION TO RECERTIFY ORDER GRANTING PERMISSION TO APPEAL [Doc. No. 28] AND DENY PLAINTIFF'S MOTION FOR RECONSIDERATION [Doc. No. 35]

Pending before the Court is Defendant's motion to recertify the order granting permission to appeal and Plaintiffs' "Motion to Modify Order to Reinstate Claim for Violation of 15 U.S.C. § 1692e(11)." The motions are fully briefed. After a thorough review of the parties' submissions, the Court GRANTS Defendant's motion to recertify and DENIES Plaintiff's motion to modify construed as a motion for reconsideration.

BACKGROUND

Plaintiffs filed a complaint seeking relief for violations of Fair Debt Collection Practices Act on April 15, 2009, naming ARS National Services, Inc. and Does 1 through 25 as defendants. See Doc. No. 1. On May 20, 2009, Defendant filed a motion for judgment on the pleadings. See Doc. No. 6. The Court granted in part and denied in part the motion. The motion was granted as to the claim that the voice mail message left with Plaintiff Simmons violated section 1692e(11) of Title 15 of the United States Code and denied as to the remaining claims. See Doc. No. 19.

On July 21, 2010, the parties filed a joint motion to certify the Court's order for appeal which this Court granted by order filed July 27, 2010. See Doc. Nos. 24, 25. Defendant filed an appeal with the United States Court of Appeals for the Ninth Circuit on August 9, 2010, and later withdrew the petition.*fn1 See Doc.Nos. 26, 30.

On August 18, 2010, Defendant filed the pending motion to recertify the order for appeal. See 28. Plaintiff filed the pending motion to correct the Court's order and filed an opposition to Defendant's motion to recertify on September 13, 2010. See Doc. Nos. 35, 36.

Defendant filed its reply in support of its motion to recertify on September 20, 2010 and filed an opposition to Plaintiff's motion to correct the Court's order on October 4, 2010. See Doc. Nos. 27, 38. Plaintiff filed a reply in support of its motion to correct the Court's order on October 8, 2010. See Doc. No. 39. The motions were taken under submission without oral argument.

DISCUSSION

I. Plaintiff's Motion to Modify

Plaintiffs seeks an order modifying this Court's previous order granting in part Defendant's motion for judgment on the pleadings. Specifically, Plaintiffs seek an order reinstating the claim asserted by Plaintiff Simmons. Plaintiffs maintain their counsel became aware of a Ninth Circuit case which establishes the appropriate analysis with respect to whether Plaintiff Simmons message is a communication under the FDCPA. They maintain pursuant to this Ninth Circuit precedent and utilizing the purpose-and-context analysis discussed therein, the Simmons message was a communication because the message was left for a consumer by a debt collector and the purpose of the call was to collect a debt. Plaintiffs contend the late filing of Defendant's petition with the Ninth Circuit gives this Court the opportunity to re-analyze the issue prior to appellate review. Citing Romine v. Diversified Collection Servs., 155 F.3d 1142 (9th Cir. 1998), Plaintiffs request this Court modify its order and reinstate the claim brought on behalf of Plaintiff Simmons pursuant to a "purpose and context" analysis.

Defendant argues the motion to modify is untimely because it was filed six months after the order was filed, well beyond the 28 day deadline permitted by the local rule for seeking reconsideration of orders. Defendant further argues the motion is meritless because the three cases relied upon by Plaintiffs in support of their motion are irrelevant and not binding precedent.

In reply, Plaintiffs suggest the Court should reconsider its ruling in spite of the fact the motion was not timely filed. Plaintiffs also argue Romine is binding upon this Court.

Rule 60(b) of the Federal Rules of Civil Procedure permits the Court to relieve a party from an order for (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation or misconduct; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; or (6) any other reason that justifies relief. However, "no motion or application for reconsideration shall be filed more than 28 days after the entry of the ruling, order or judgment sought to be reconsidered. CivLR 7.1.i.2. Plaintiffs' request filed almost six months after the order was filed is untimely.

Even if the Court addresses the merits of the request to modify its prior order, Plaintiffs' motion should be denied. Contrary to Plaintiffs' contention, the decision in Romine does not demonstrate this Court's prior ruling was in error. In Romine, the Ninth Circuit reversed the district court's dismissal of Western Union from the FDCPA action upon finding Western Union's conduct amounted to a direct or indirect attempt to collect a debt and therefore Western Union was a debt collector subject to the FDCPA. In the instant matter, the Court made a determination as to whether a message left by a debt collector was a "communication" under the FDCPA. As such, the Ninth Circuit's analysis and holding surrounding whether a defendant was a debt collector subject to the FDCPA is not directly relevant to the issue involved with the case at bar. Furthermore, although Romine does not require a "purpose and context" ...


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