Koby et al v. ARS National Services, Inc. et al, No. 3:2009cv00780 - Document 42 (S.D. Cal. 2010)
Court Description: ORDER granting defendant's motion to recertify order granting permission to appeal 28 , and denying plaintiff's motion for reconsideration styled as a motion to modify Court's Order 35 ; further proceedings in this matter are stayed pending the completion of the interlocutory review process in the Ninth Circuit; Signed by Judge John A. Houston on 12/22/10. (kaj)
Download PDF
<![CDATA[
Koby et al v. ARS National Services, Inc. et al Doc. 42 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL P. KOBY, an individual, et. al., Plaintiff, 12 v. 13 ARS NATIONAL SERVICES, INC., a California Corporation, et. al., 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants. ) ) ) ) ) ) ) ) ) ) ) Civil No. 09cv0780 JAH (JMA) 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. 09cv780 Dockets.Justia.com 1 On July 21, 2010, the parties filed a joint motion to certify the Court’s order for 2 appeal which this Court granted by order filed July 27, 2010. See Doc. Nos. 24, 25. 3 Defendant filed an appeal with the United States Court of Appeals for the Ninth Circuit 4 on August 9, 2010, and later withdrew the petition.1 See Doc. Nos. 26, 30. 5 On August 18, 2010, Defendant filed the pending motion to recertify the order for 6 appeal. See 28. Plaintiff filed the pending motion to correct the Court’s order and filed 7 an opposition to Defendant’s motion to recertify on September 13, 2010. See Doc. 8 Nos. 35, 36. 9 Defendant filed its reply in support of its motion to recertify on September 20, 10 2010 and filed an opposition to Plaintiff’s motion to correct the Court’s order on October 11 4, 2010. See Doc. Nos. 27, 38. Plaintiff filed a reply in support of its motion to correct 12 the Court’s order on October 8, 2010. See Doc. No. 39. The motions were taken under 13 submission without oral argument. DISCUSSION 14 15 I. Plaintiff’s Motion to Modify 16 Plaintiffs seeks an order modifying this Court’s previous order granting in part 17 Defendant’s motion for judgment on the pleadings. Specifically, Plaintiffs seek an order 18 reinstating the claim asserted by Plaintiff Simmons. Plaintiffs maintain their counsel 19 became aware of a Ninth Circuit case which establishes the appropriate analysis with 20 respect to whether Plaintiff Simmons message is a communication under the FDCPA. 21 They maintain pursuant to this Ninth Circuit precedent and utilizing the purpose-and- 22 context analysis discussed therein, the Simmons message was a communication because 23 the message was left for a consumer by a debt collector and the purpose of the call was to 24 collect a debt. Plaintiffs contend the late filing of Defendant’s petition with the Ninth 25 Circuit gives this Court the opportunity to re-analyze the issue prior to appellate review. 26 Citing Romine v. Diversified Collection Servs., 155 F.3d 1142 (9th Cir. 1998), Plaintiffs 27 28 Defendant maintains it withdrew the petition because it was one day late. See Topor Decl. ¶ 5 (Doc. No. 28-1). 1 2 09cv780 1 request this Court modify its order and reinstate the claim brought on behalf of Plaintiff 2 Simmons pursuant to a “purpose and context” analysis. 3 Defendant argues the motion to modify is untimely because it was filed six months 4 after the order was filed, well beyond the 28 day deadline permitted by the local rule for 5 seeking reconsideration of orders. Defendant further argues the motion is meritless 6 because the three cases relied upon by Plaintiffs in support of their motion are irrelevant 7 and not binding precedent. 8 In reply, Plaintiffs suggest the Court should reconsider its ruling in spite of the fact 9 the motion was not timely filed. Plaintiffs also argue Romine is binding upon this Court. 10 Rule 60(b) of the Federal Rules of Civil Procedure permits the Court to relieve a 11 party from an order for (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly 12 discovered evidence; (3) fraud, misrepresentation or misconduct; (4) the judgment is void; 13 (5) the judgment has been satisfied, released or discharged; or (6) any other reason that 14 justifies relief. However, “no motion or application for reconsideration shall be filed more 15 than 28 days after the entry of the ruling, order or judgment sought to be reconsidered. 16 CivLR 7.1.i.2. Plaintiffs’ request filed almost six months after the order was filed is 17 untimely. 18 Even if the Court addresses the merits of the request to modify its prior order, 19 Plaintiffs’ motion should be denied. Contrary to Plaintiffs’ contention, the decision in 20 Romine does not demonstrate this Court’s prior ruling was in error. In Romine, the Ninth 21 Circuit reversed the district court’s dismissal of Western Union from the FDCPA action 22 upon finding Western Union’s conduct amounted to a direct or indirect attempt to collect 23 a debt and therefore Western Union was a debt collector subject to the FDCPA. In the 24 instant matter, the Court made a determination as to whether a message left by a debt 25 collector was a “communication” under the FDCPA. As such, the Ninth Circuit’s analysis 26 and holding surrounding whether a defendant was a debt collector subject to the FDCPA 27 is not directly relevant to the issue involved with the case at bar. Furthermore, although 28 Romine does not require a “purpose and context” analysis as suggested by Plaintiffs, the 3 09cv780 1 Court applied such an analysis when making its determination that the message left for 2 Plaintiff Simmons did not directly or indirectly convey information regarding a debt. See 3 Order at 4-5. 4 Plaintiffs also rely on the holding of Gburek v. Litton Loan Servicing LP, 614 F.3d 5 380 (7th Cir. 2010). Initially, the Court notes the case is not binding precedent as it is 6 from the Seventh Circuit. Additionally, it does not demonstrate this Court’s previous 7 order was in error. In Gburek, the Seventh Circuit reversed the district court’s ruling that 8 a letter sent by a debt collector that did not contain an explicit demand for payment was 9 not a communication made in connection with the collection of any debt under the 10 FDCPA. In reaching its decision, the court recognized that the FDCPA did not apply to 11 every communication between a debt collector and a debtor and the absence of a demand 12 for payment is just one of several factors in determining whether the communication falls 13 under the FDCPA. Id. at 384-85, 386. Looking to the context and content of the letters, 14 the court found the fact the plaintiff was in default on her mortgage, the letters offered to 15 discuss alternatives to foreclosure and asked for her financial information were sufficient 16 to bring the communications within the scope of the FDCPA. Id. at 386. As discussed 17 above, this Court did consider the context and content of the message in making its 18 determination, and specifically found the message left for Plaintiff Simmons included no 19 information regarding the debt and therefore was not a communication for purposes of the 20 FDCPA. 21 Finally, Plaintiffs’ reliance on a district court order outside this Circuit is unavailing. 22 The court in Hutton v. C.B. Accounts, Inc., 2010 WL 3021904 (C.D.Ill. 2010), 23 specifically discussed and disagreed with this Court’s reasoning in its order dismissing the 24 claim based upon the message left Plaintiff Simmons in determining a message similar to 25 the one left Plaintiff Simmons was a communication. Disagreement with this Court by 26 another district court outside this circuit is insufficient to support reconsideration of the 27 order. 28 Accordingly, Plaintiffs’ motion for reconsideration styled as a motion to modify the 4 09cv780 1 Court’s order is DENIED. 2 II. Defendant’s Motion to Recertify 3 Defendant requests this Court recertify the order granting in part and denying in 4 part Defendant’s motion for judgment on the pleadings for immediate appeal pursuant to 5 28 U.S.C. section 1292(b). Defendant maintains the reasons that prompted the parties 6 to jointly seek certification still exist and recertification will advance the purposes of 7 section 1292(b). Specifically, Defendant argues the action involves questions of law about 8 which there are substantial grounds for difference of opinion, and immediate appeal will 9 advance the ultimate termination of the litigation. Defendant further maintains Plaintiffs 10 previously agreed to certification, they will not be prejudiced by recertification and 11 Defendant is not seeking to delay or harass Plaintiffs. 12 Plaintiffs oppose the motion. They argue there are no substantial grounds for 13 difference of opinion and judicial economy will not be promoted by an immediate appeal. 14 Plaintiffs maintain there is no dispute amongst the circuits and no bona fide dispute 15 amongst the district courts, as only one court, the Western District of Oklahoma, found 16 a voice mail message conveyed no information regarding a debt. Relying on the reasoning 17 of Hutton, Plaintiffs maintain a message left for the purpose of attempting to collect in the 18 context of a debt collector-consumer relationship is information regarding a debt and 19 therefore a communication. As such, they argue there is no basis to conclude substantial 20 grounds for difference of opinion. They further argue only a complete reversal of the 21 Court’s order would short circuit the case and complete reversal is unlikely given the 22 weight of authority. So, an interlocutory appeal will likely delay resolution of this case and 23 permitting the case to proceed in ordinary course will allow for a more complete record. 24 25 In reply, Defendant argues none of the cases cited by Plaintiff help them, in fact, 26 they argue the cases confirm that substantial grounds for a difference of opinion exists. 27 Defendant maintains allowing the Ninth Circuit to resolve the issues will bring guidance 28 and clarity and will materially advance the litigation by possibly avoiding an expensive 5 09cv780 1 class action. 2 28 U.S.C. § 1292(b)2 permits a district judge to certify an issue for interlocutory 3 appeal where the issue (1) involves a controlling question of law; (2) to which there is 4 substantial ground for difference of opinion; and (3) an immediate appeal may materially 5 advance the ultimate termination of the litigation. Certification of interlocutory orders 6 under Section 1292(b) requires exceptional circumstances to be present to “justify a 7 departure from the basic policy of postponing appellate review until after the entry of a 8 final judgment.” 9 1982). In re Cement Antitrust Litigation, 673 F.2d 1010, 1026 (9th Cir. 10 The parties do not dispute the fact the issue constitutes a controlling question of 11 law. A reversal of this Court’s order as to whether the messages were communications 12 subject to the FDCPA would materially affect the outcome of the litigation by possibly 13 terminating all or portions of the litigation and, therefore, constitutes a controlling 14 question of law. See id. Additionally, the lack of controlling precedent as to when a 15 message qualifies as a “communication” subject to the provisions of the FDCPA and the 16 various district court decisions3 demonstrate substantial grounds for a difference of 17 Section 1292(b) states, in its entirety: 18 2 19 When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of the litigation, he shall so state in writing in such order. The Court of Appeal which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. 20 21 22 23 24 25 26 28 U.S.C. § 1292(b)(emphasis in original). See Biggs v. Credit Collections, Inc., 2007 WL 4034997 (W.D.Okla.); Berg v. Merchants Ass’n Collection Div., Inc., 586 F.Supp.2d 1336 (S.D.Fla. 2008); Berlin v. Litton Loan Serving, LP, 2006 WL 1992410 (M.D.Fla. 2006); Foti v. NCO Fin. Sys., Inc., 424 F.Supp.2d 643 (S.D.N.Y. 2006); Hosseinzadeh v. M.R.S. Associates, Inc., 387 F.Supp.2d 1104 (C.D.Cal. 2005). 3 27 28 6 09cv780 1 opinion exists. Finally, the interlocutory appeal may materially advance the litigation in 2 that a decision by the Ninth Circuit will likely simplify the issues to be tried and may 3 determine the appropriateness of a class action or limit the class. The Court finds 4 exceptional circumstances exist to support certification under section 1292(b). 5 Accordingly, the motion is GRANTED. The Court further finds a stay of the proceedings 6 pending the outcome of the appeal is appropriate. CONCLUSION AND ORDER 7 8 Based on the foregoing, IT IS HEREBY ORDERED: 9 1. Plaintiff’s motion for reconsideration styled as a motion to modify the Court’s order is DENIED; 10 11 2. Defendant’s motion to recertify is GRANTED; 12 3. Further proceedings in this matter are STAYED pending the completion of 13 14 the interlocutory review process in the Ninth Circuit. DATED: December 22, 2010 15 16 17 JOHN A. HOUSTON United States District Judge 18 19 20 21 22 23 24 25 26 27 28 7 09cv780
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
