United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
N. Stivers, United States District Court Chief Judge
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
STATEMENT OF FACTS AND CLAIMS
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).
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).
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
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))).
Status of Discovery Prior to Dispositive Motions
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).
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).
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).
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.