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Burke v. Lawrence & Lawrence, PLLC

United States District Court, W.D. Kentucky, Louisville Division

December 7, 2018



          Greg N. Stivers, United States District Court Chief Judge

         This matter is before the Court on Plaintiff's Motion to Alter, Amend, or Vacate (DN 77). The motion is ripe for adjudication. For the reasons outlined below, the motion is DENIED.


         Plaintiff Edward Burke (“Burke”) filed this action alleging that Defendant Lawrence & Lawrence, PLLC (“Defendant”) violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p. (Compl. ¶ 1, DN 1). The alleged violation of the FDCPA arises from a prior action styled First Capital Bank of Kentucky v. Primera, LLC, filed in Jefferson Circuit Court, Kentucky, Civil Action No. 11-CI-401831. (Compl. ¶ 2). Burke was a third-party defendant in that action, and the state court entered an adverse judgment against him. (Compl. ¶ 2).

         On March 22, 2018, the Court dismissed Burke's claim on the basis that Lawrence & Lawrence, PLLC did not qualify as a debt collector under the FDCPA. (Mem. Op. & Order 8-9, DN 75). In the present motion, Burke contends the Court erred in dismissing the claim. (Pl.'s Mem. Supp. Mot. Alter, Amend, or Vacate 15-27, DN 77-1).


         In his motion, Burke seeks relief under both Fed.R.Civ.P. 59 and 60. Under Fed.R.Civ.P. 59, “[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Fed.R.Civ.P. 59(e). “Pursuant to Rule 59(e), there are three grounds for amending a judgment: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; and (3) to correct a clear error of law or to prevent manifest injustice.” Berridge v. Heiser, 993 F.Supp. 1136, 1146-47 (S.D. Ohio 1997) (citing Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). A motion under this rule, however, “is not an opportunity for the losing party to simply offer old arguments a second time or ‘to offer additional arguments in support of its position' that were not properly presented initially.” Saunders v. Ford Motor Co., No. 3:15-CV-00594-JHM, 2017 WL 489419, at *1 (W.D. Ky. Feb. 6, 2017) (quoting Elec. Ins. Co. v. Freudenberg-Nok, Gen. P'ship, 487 F.Supp.2d 894, 902 (W.D. Ky. 2007)). “Such motions are extraordinary and sparingly granted.” Marshall v. Johnson, No. 3:07-CV-171-H, 2007 WL 1175046, at *2 (W.D. Ky. Apr. 19, 2007) (citing Plaskon Elec. Materials, Inc. v. Allied-Signal, Inc., 904 F.Supp. 644, 669 (N.D. Ohio 1995)).

         In relevant part, Fed.R.Civ.P. 60 provides that “the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect; . . . [or] any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(1), (6). As the Sixth Circuit has explained, “a Rule 60(b)(1) motion is intended to provide relief in only two situations: (1) when a party has made an excusable mistake or an attorney has acted without authority, or (2) when the judge has made a substantive mistake of law or fact in the final judgment or order.” United States v. Reyes, 307 F.3d 451, 455 (6th Cir. 2002) (citing Cacevic v. City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000)). In addition, “Rule 60(b) does not allow a defeated litigant a second chance to convince the court to rule in his or her favor by presenting new explanations, legal theories, or proof.” Tyler v. Anderson, 749 F.3d 499, 509 (6th Cir. 2014) (citing Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001)); see also CGH Transport, Inc. v. Quebecor World, Inc., 261 Fed.Appx. 817, 824 (6th Cir. 2008) (“[T]he standard for granting a Rule 60(b) motion is higher than the standard for a Rule 59(e) motion.” (citing Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 268 (6th Cir. 1998))).

         A. Status of Discovery Prior to Dispositive Motions

         Burke first contends that the Court prematurely ruled on the issue of whether Defendant is a debt collector under the FDCPA and that he did not waive the right to contest that issue. (Pl.'s Mem. Supp. Mot. Alter, Amend, Vacate, or Grant Relief 14-20). Plaintiff, however, failed to address this issue in responding to Defendant's motion, which raised that issue. (Mem. Op. & Order 6-9, DN 75).

         The question of whether Defendant constituted a debt collector was ever-present in the litigation. Defendant's status as a debt collector was specifically alleged in the Complaint, and Defendant denied that allegation. (Compl. ¶ 27; Answer ¶ 2, DN 4). During the course of discovery, this issue was clearly discussed between the parties and the Court. Judge Lindsay gave Burke the opportunity to conduct additional discovery on this issue, and Defendant submitted initial disclosures. (Report & Order Telephonic Status Conference 1-2, DN 53; Def.'s Am. Rule 26(a)(1) Initial Disclosures 3-4, DN 56).

         As the Court noted in its Memorandum Opinion and Order, Burke failed to address whether Defendant was a debt collector, which was raised in Defendant's motion, or attack Lawrence's Affidavit, which Burke now belatedly seeks to do. (Mem. Opinion & Order 6 n. 3, DN 75). It is improper, therefore, for Burke to rely on this argument and raise it for the first time in seeking relief from the Court's judgment. See Elec. Ins. Co., 487 F.Supp.2d at 902 (citing Sault Ste. Marie Trip of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)); Tyler, 749 F.3d at 509 (citing Jinks, 250 F.3d at 385).

         In support of his argument that this issue was not waived, Burke relies on the Sixth Circuit's decision in United States v. McDaniel, 398 F.3d 540 (6th Cir. 2005). (Pl.'s Mem. Supp. Mot. Alter, Amend, Vacate, or Grant Relief 18-20). McDaniel, however, is a criminal case and discusses whether the defendants had waived a claim that their Sixth Amendment rights had been violated. See Id. at 546. Burke's citation and reliance on McDaniel flies in the face of Sixth Circuit precedent holding that a party's failure to address an issue in opposition to a dispositive motion constitutes a waiver. See Lewis-Smith v. W. Ky. Univ., 85 F.Supp.3d 885, 915 (W.D. Ky. 2015) (“When a party fails to respond to a motion or argument therein, the Sixth Circuit has held that the lack of response is grounds for the district court to assume opposition to the motion is waived and grant the motion.” (citing Humphrey v. U.S. Att'y Gen.'s Office, 279 Fed.Appx. 328, 331 (6th Cir. 2008))). Thus, Burke has failed to show that he is entitled to relief on this basis.

         B. ...

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