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Mitchell v. LVNV Funding LLC

United States District Court, N.D. Indiana

December 15, 2017

MARY MITCHELL, on behalf of herself and all other class members, Plaintiff,
v.
LVNV FUNDING, LLC; RESURGENT CAPITAL SERVICES, L.P.; and ALEGIS GROUP, LLC, Defendants.

          OPINION AND ORDER

          THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT

         This matter is before the Court on the Plaintiff's Motion for Reconsideration [ECF No. 169], filed on October 3, 2017, seeking reconsideration of a portion of the Court's September 28, 2017, Opinion and Order [ECF No. 168] granting, in part, and denying, in part, the Plaintiff's Amended Motion for Summary Judgment [ECF No. 142] and granting, in part, and denying, in part, the Defendants' Cross-Motion for Summary Judgment [ECF No. 139]. Defendant LVNV Funding, LLC (LVNV) filed its Response to the Motion for Reconsideration [ECF No. 170] on October 16, 2017. The Plaintiff filed her Reply [ECF No. 172] on October 23, 2017. On November 10, 2017, the Defendant filed a Motion for Leave to File a Sur-Reply [ECF No. 173], and the Plaintiff filed an Objection [ECF No. 174]. On November 28, 2017, the Court held a telephonic status conference with the parties [ECF No. 175], at which time the Court granted leave for the Defendant to file its Sur-Reply [ECF No. 173-1] and overruled the Plaintiff's Objection to the extent that it sought to prevent filing of the Sur-Reply, but the Court indicated that it would otherwise consider the Plaintiff's substantive arguments raised in her Objection.

         STANDARD OF REVIEW

         Because the Court's September 2017 Opinion and Order on summary judgment did not resolve all of the matters before the Court, it is not a final order. Accordingly, the Plaintiff “asks the Court to reconsider pursuant to its inherent authority to reconsider an interlocutory order at any time.” (Pl. Reply 2, ECF No. 172).

         “Unlike motions to reconsider final judgments, which are governed by Federal Rule of Civil Procedure 59 or 60, a motion to reconsider an interlocutory order [under Rule 54(b)] may be entertained and granted as justice requires.” Azko Coatings, Inc. v. Aigner Corp., 909 F.Supp. 1154, 1159 (N.D. Ind. 1995); see also Atchley v. Heritage Cable Vision Assocs., 926 F.Supp. 1381, 1383 (N.D. Ind. 1996) (citation omitted). Rule 54(b) provides in relevant part:

[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

         “The beneficial aspect of distinguishing between the two methods of relief is readily apparent when the strict standard for granting relief under Rule 60(b) is contrasted with the practically unbridled discretion of a district court to reconsider a previous interlocutory order [under Rule 54(b)].” Fisher v. Nat'l R.R. Passenger Corp., 152 F.R.D. 145, 149 (S.D. Ind. 1993); see also Peirick v. Ind. Univ.-Purdue Univ. Athletics Dep't, 510 F.3d 681, 694 n.5 (7th Cir. 2007) (holding that a district court has “broad authority to reconsider” an interlocutory order). A court may reconsider prejudgment interlocutory decisions at any time prior to final judgment. In re 949 Erie St., Racine, Wis., 824 F.2d 538, 541 (7th Cir. 1987) (citing Cameo Convalescent Ctr., Inc. v. Percy, 800 F.2d 108, 110 (7th Cir. 1986)); Fisher, 152 F.R.D. at 149 (“[A] district court has the inherent power to reconsider interlocutory orders and re-open any part of a case before entry of final judgment.”)

         DISCUSSION

         A. Reconsideration

         The Court finds that reconsideration of the portion of its September 28 2017, Opinion and Order on summary judgment regarding LVNV's liability would be in the interest of justice. In reaching its determination regarding LVNV's liability, the Court relied upon the Supreme Court's decision in Henson v. Santander Consumer USA, Inc., 137 S.Ct. 1718 (2017), which interprets a portion of the Fair Debt Collection Practices Act (FDCPA) that defines a debt collector. This Court noted in its Opinion and Order that Henson was issued after the conclusion of the parties briefing.[1] Because the parties did not have an opportunity to discuss the implications, limitations, and/or applicability of Henson upon LVNV's liability, the Court finds that reconsideration of the portion of its September 2017 Opinion and Order concerning LVNV's liability (both as argued by the Plaintiff in her summary judgment motion and as argued by the Defendant in its cross-motion for summary judgment) is appropriate.

         During a telephonic conference that the Court held on November 28, 2017, the parties indicated that they had completed briefing on the merits of reconsideration and that no additional briefing was required. Accordingly, the Court next considers the merits of the Motion for Reconsideration in this Opinion and Order.

         B. The Standard for Introduction of Factual Evidence During Reconsideration

         Before turning to the merits of the instant Motion, the Court first resolves a dispute between the parties concerning the introduction of new facts and arguments for this Court's consideration in this instant order regarding reconsideration. Among its other arguments, in its Sur-Reply, the Defendant maintains that the Plaintiff “improperly raised for the first time in her Reply Brief” several disputed facts and arguments and that these should “not have been raised as a basis for her Motion for Reconsideration because such motion is not properly utilized ‘to advance arguments or theories that could and should have been made before the district court rendered a judgment . . . .'” (Def.'s Sur-Reply 2, ECF No. 173-1 (quoting Sigsworth v. City of Aurora, 487 F.3d 506, 512 (7th Cir. 2007).)

         The issue with the Defendant's reliance on Sigsworth is that the Seventh Circuit's holding is based upon a Motion for Reconsideration filed pursuant to Federal Rule of Civil Procedure 59(e). In fact, the Seventh Circuit explicitly makes clear that its holding is for motions brought pursuant to Rule 59(e). See 487 F.3d at 512 (“[I]t is well-settled that a Rule 59(e) motion is not properly utilized to advance arguments or theories that could and should have been made before the district court rendered a judgment . . . .”) (emphasis added) (internal quotations omitted). The Seventh Circuit's holding is predicated on the fact that Rule 59(e) motions for reconsideration are brought after entry of final judgment. Accordingly, a party is prevented from advancing new theories or arguments after the entry of final judgment.

         Here, however, the Motion for Reconsideration is pending under this Court's broad authority to consider an interlocutory order in which no final judgment has been rendered. The Plaintiff seeks to advance arguments in favor of the same cause of action and the same position regarding LVNV's liability that she took during the initial round of summary judgment briefing, but in light of clarifying precedent from the Supreme Court. In so doing, the Plaintiff seeks the introduction of facts and arguments that are relevant to the Court's consideration. The Court notes that the introduction of these factual contentions does not appear to prejudice the Defendant- it is not the case that the Plaintiff is now introducing a previously undisclosed document or information that the Defendant otherwise would not have been able to view or access. Instead, the Plaintiff points to LVNV's known business activities; for instance, the Plaintiff's additional facts include a Massachusetts case and an Illinois case in which the respective courts made factual findings regarding LVNV's business operation, a list of lawsuits filed by LVNV in Illinois, and the limited power of attorney agreement between LVNV and Resurgent Capital Services LP (Resurgent). Accordingly, to ...


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