Justia.com Opinion Summary: Plaintiff Diana Mey filed a class action complaint alleging that Defendants, several companies, violated the Telephone Consumer Protection Act (TCPA) by leaving an automated voicemail message at her residence in response to a classified advertisement that Plaintiff's son placed on an internet website. The circuit court ruled that the automated call placed in response to the advertisement did not violate the TCPA and granted Defendants' motion to dismiss. The Supreme Court affirmed, holding that the circuit court (1) applied the correct standard of review when assessing a W.V. R. Civ. P. 12(b)(6) motion to dismiss; (2) properly ruled that the automated call was not a telephone solicitation and did not contain an unsolicited advertisement under the TCPA; (3) did not abuse its discretion by denying Plaintiff's motion for relief pursuant to W.V. R. Civ. P. 59(e) and 60(b) after being informed that the Federal Communication Commission (FCC) issued a citation against Defendants; and (4) did not err in concluding that Defendants were not required to obtain Plaintiff's prior express consent before responding to the classified advertisement.
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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2011 Term
____________
No. 101406
____________
DIANA MEY,
Plaintiff below, Petitioner
FILED
September 29, 2011
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
v.
THE PEP BOYS - MANNY, MOE & JACK, SOUTHWEST VEHICLE
MANAGEMENT, INC., and LANELOGIC, INC. d/b/a CAROFFER.COM,
Defendants below, Respondents
____________________________________________________
Appeal from the Circuit Court of Ohio County
Honorable Martin J. Gaughan, Judge
Civil Action No. 09-C-238
AFFIRMED
____________________________________________________
Submitted: September 20, 2011
Filed: September 29, 2011
John W. Barrett, Esq.
Jonathan R. Marshall, Esq.
Bailey & Glasser, LLP
Charleston, West Virginia
Matthew P. McCue, Esq.
Pro Hac Vice
Natick, Maine
Attorneys for Petitioner
Keith J. George, Esq.
Jeffrey A. Kimble, Esq.
John J. Meadows, Esq.
Robinson & McElwee, PLLC
Clarksburg, West Virginia
Michael Mallow, Esq.
Laura A. Wytsma, Esq.
Aurele A. Danoff, Esq.
Pro Hac Vice
Loeb & Loeb, LLP
J.H. Mahaney, Esq.
Charles F. Bellomy, Esq.
Huddleston Bolen, LLP
Huntington, West Virginia
Attorneys for Respondents
Southwest Vehicle Management, Inc. and
Lanelogic, Inc., d/b/a Caroffer.com
Los Angeles, California
Attorneys for Respondents
The Pep Boys - Manny, Moe and Jack
JUSTICE KETCHUM delivered the Opinion of the Court.
JUSTICE BENJAMIN, deeming himself disqualified, did not take part in the decision of
this matter.
SYLLABUS BY THE COURT
1.
Under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq.,
a caller responding to a classified advertisement is not making a “telephone solicitation” in
violation of the Act, provided the purpose of the call is to inquire about or offer to purchase
the product or service advertised, rather than to encourage the advertiser to purchase, rent,
or invest in property, goods or services.
2.
A motion under Rule 59(e) of the West Virginia Rules of Civil
Procedure should be granted where: (1) there is an intervening change in controlling law; (2)
new evidence not previously available comes to light; (3) it becomes necessary to remedy a
clear error of law or (4) to prevent obvious injustice.
i
Ketchum, J.:
The plaintiff below, Diana Mey (“plaintiff”), appeals an order from the Circuit
Court of Ohio County, granting the defendants’ motion to dismiss pursuant to Rule 12(b)(6)
of the West Virginia Rules of Civil Procedure. The plaintiff filed a class action complaint
alleging that the defendants, The Pep Boys, Southwest Vehicle Management, Inc., and
Lanelogic Inc. (“defendants”), violated the Telephone Consumer Protection Act (“TCPA”),
47 U.S.C. § 227, et seq., by leaving an automated voicemail message at her residence in
response to a classified advertisement that the plaintiff’s son placed on the internet website
craigslist.com. The plaintiff’s son was selling a used car and his internet advertisement
invited third parties to contact him at the plaintiff’s home telephone number. The circuit
court ruled that the automated call placed in response to this advertisement did not violate
the TCPA and granted the defendants’ motion to dismiss. Following this ruling, the plaintiff
filed a motion for relief pursuant to Rules 59(e) and 60(b) of the West Virginia Rules of Civil
Procedure, which the circuit court denied.
In this appeal, the plaintiff argues that the circuit court erred by (1) failing to
apply the correct standard of review when assessing a Rule 12(b)(6) motion to dismiss; (2)
ruling that the automated call was not a “telephone solicitation” and did not contain an
“unsolicited advertisement” as those terms are defined by the TCPA; (3) failing to grant the
plaintiff’s motion for relief pursuant to Rules 59(e) and 60(b) of the West Virginia Rules of
1
Civil Procedure after being informed that the Federal Communication Commission (“FCC”)
issued a citation against the defendants; and (4) finding that the plaintiff provided her “prior
express consent” to be contacted.
After thorough consideration of the briefs, the record submitted on appeal, and
the oral arguments of the parties, we affirm the circuit court’s orders granting the defendants’
Rule 12(b)(6) motion to dismiss and denying the plaintiff’s motion for relief pursuant to
Rules 59(e) and 60(b) of the West Virginia Rules of Civil Procedure.
I. Facts & Procedural Background
In early June 2008, the plaintiff’s son, who lived with his mother, listed a used
car for sale on the website craigslist.com and provided their home telephone number that
interested third parties could use to contact him. On June 12, 2008, the plaintiff received an
automated1 telephone call stating:
Hello. I’m calling you about the vehicle you have listed
for sale. At Caroffer.com we’re willing to give you a cash offer
right now. All you have to do is go to Caroffer.com, tell us
about your vehicle and we’ll give you an offer in minutes. One
of our buyers will return an offer that we are willing to take for
your vehicle. If you accept the offer, simply drop off your car
at the nearest participating Pep Boys to pick up your check. It’s
that easy at Caroffer.com. There are no hassles, no fees, and no
salesmen trying to sell you another car. It’s that easy and you
get your check immediately. www.Caroffer.com. Give us a try.
You’ll be glad you did.
1
These calls are also referred to as “robocalls” and “prerecorded” calls.
2
After receiving this message, the plaintiff filed a class action complaint against
three defendants, The Pep Boys, Lanelogic Inc., and Southwest Vehicle Management Inc.,
who allegedly entered into a partnership to purchase used cars. The plaintiff sought damages
and an injunction under the TCPA, 47 U.S.C. § 227, to redress the alleged harm caused by
the automated message left on her answering machine.
The TCPA is a federal statute that broadly regulates the use of automated
telephone equipment. The statute prohibits certain unsolicited advertising calls, restricts the
use of automatic dialers, and delegates rulemaking authority to the FCC. The TCPA provides
for injunctive relief and statutory damages in the amount of $500 per violation. 47 U.S.C. §
227(b)(3).
In response to the plaintiff’s complaint, the defendants filed a motion to
dismiss, arguing that there was no violation of the TCPA because the automated message was
left in response to an advertisement placed on the Internet by the plaintiff’s son that invited
third parties to make inquiries about buying the used car.
The circuit court agreed with the defendants and granted their motion to
dismiss by order entered on January 15, 2010. The circuit court concluded that “the message
does not constitute an unsolicited advertisement subject to TCPA enforcement because the
person posting the classified [ad] is expressly inviting a call using the number in the
classified ad. . . The facts alleged in this case are the antitheses of the definition of
3
‘unsolicited’ because Plaintiff’s son requested unknown third parties interested in buying his
car to contact him at Plaintiff’s number.”
On February 1, 2010, the plaintiff filed a motion for relief from the judgment
pursuant to Rules 59(e) and 60(b) of the West Virginia Rules of Civil Procedure. The
plaintiff argued that documents the defendants provided to her “shortly before” the motion
to dismiss hearing demonstrated that the automated message at issue “was intended not only
to lead to the sale of a car to the Defendants, but also to sell $99 inspection service-fees, ‘upsell’ auto repairs, and ‘entice’ customers to pay to ‘recondition’ the cars they intended to
sell.”
The plaintiff filed a supplemental memorandum to this motion on April 30,
2010, notifying the circuit court that the FCC issued a citation against defendant Pep Boys
on March 15, 2010, relating to the automated message at issue. In response, the defendants
argued that the plaintiff failed to raise any new facts that warranted relief under Rules 59(e)
or 60(b). The defendants stated that the plaintiff had the documents relating to the inspection
fees and auto repairs before the hearing on the motion to dismiss and that this issue was
raised and argued before the circuit court during that hearing. The defendants argued that
the FCC citation was based on a consumer complaint the plaintiffs filed with the FCC twelve
days after the circuit court granted the defendants’ motion to dismiss. The defendants also
stated that the citation was not an actual adjudication of wrongdoing, rather it was “merely
4
a complaint or ‘charge’ consisting of allegations, not a decision of liability or a determination
on the merits.”
The circuit court agreed with the defendants and denied the plaintiff’s Rule
59(e) and 60(b) motion for relief from judgment, stating:
Plaintiff’s Motion for Relief essentially reargues the
points and facts that were already presented in her opposition to
Defendants’ Motion to Dismiss and fails to identify new facts,
new law or new arguments that would justify a reconsideration
of the Court’s prior ruling let alone a reversal of the Court’s
ruling.
Following the circuit court’s denial of her motion for relief, the plaintiff filed
the present appeal.
II. Standard of Review
On appeal to this Court, the plaintiff contests two rulings made by the circuit
court. Generally, when reviewing a circuit court’s decision, we apply a three-part standard
of review:
In reviewing challenges to the findings and conclusions
of the circuit court, we apply a two-prong deferential standard
of review. We review the final order and the ultimate
disposition under an abuse of discretion standard, and we review
the circuit court’s underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo
review.
Syllabus Point 2, Walker v. West Virginia Ethics Comm’n, 201 W.Va. 108, 492 S.E.2d 167
(1997). As the various errors raised by the plaintiff concern different principles of law,
5
multiple standards of review apply to our consideration of those issues. Therefore the
specific standards of review will be applied below in our discussion of the plaintiff’s
arguments.
III. Analysis
A. Standard for Consideration of a Rule 12(b)(6) Motion to Dismiss
The plaintiff’s first assignment of error is that the circuit court erred in its
application of the standard for consideration of a motion to dismiss. This Court has
explained that “[t]he purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency
of the complaint.” Collia v. McJunkin, 178 W.Va. 158, 159, 358 S.E.2d 242, 243 (1987)
(citations omitted). “The trial court, in appraising the sufficiency of a complaint on a Rule
12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” Syllabus Point 3,
Chapman v. Kane Transfer Co. Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977). “Dismissal for
failure to state a claim is proper ‘where it is clear that no relief could be granted under any
set of facts that could be proved consistent with the allegations.’” Murphy v. Smallridge, 196
W.Va. 35, 37, 468 S.E.2d 167, 168 (1996). This Court has also held that “[a]ppellate review
of a circuit court’s order granting a motion to dismiss a complaint is de novo.” Syllabus
6
Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461
S.E.2d 516 (1995).
The circuit court’s order granting the motion to dismiss states that it accepted
all of the plaintiff’s allegations as true “as the court must when considering a motion to
dismiss for failure to state a claim upon which relief could be granted[.]” The order also
includes a three paragraph recitation of the standard of review applicable to a Rule 12(b)(6)
motion to dismiss. The circuit court’s order recites the undisputed factual allegations in the
complaint: the plaintiff’s son advertised a used car for sale on the internet and received an
automated call from the defendants inquiring about buying the car. There is no factual
dispute regarding the text of the automated call. The plaintiff also alleged that this automated
call was made without her prior express consent and that no one in the plaintiff’s household
had a prior business relationship with any of the defendants. The circuit court accepted these
allegations as true and determined that they failed to state a claim as a matter of law under
the TCPA. Because the circuit court accepted the factual allegations contained in the
complaint as true, we find no error with the standard of review the court applied to the
motion to dismiss.
B. Circuit Court’s Analysis of the TCPA
The plaintiff next argues that the circuit court erred in its determination that the
automated call was not a “telephone solicitation” and did not contain an “unsolicited
7
advertisement” as those terms are defined by the TCPA. Congress enacted the TCPA to
“protect the privacy interests of residential telephone subscribers by placing restrictions on
unsolicited, automated telephone calls . . . and to facilitate interstate commerce by restricting
certain uses of facsimile (fax) machines and automatic dialers.” S.Rep. No. 102-178, at 1
(1991). The legislation was intended to address the “growing number of telephone marketing
calls and certain telemarketing practices thought to be an invasion of consumer privacy[.]”2
According to the TCPA, “[i]t shall be unlawful for any person within the United States . . .
to initiate any telephone call to any residential telephone line using an artificial or
prerecorded voice to deliver a message without the prior express consent of the called party,
unless the call is initiated for emergency purposes or is exempted by rule or order by the
Commission3 under paragraph 2(B)[.]” 47 U.S.C. § 227(b)(1)(B). The exemptions in
paragraph 2(B) include:
(i) calls that are not made for a commercial purpose; and
(ii) such classes or categories of calls made for commercial
purposes as the Commission determines
(I) will not adversely affect the privacy rights that
this section is intended to protect; and
(II) do not include the transmission of any
unsolicited advertisement.
2
Federal Communications Commission Report and Order In the Matter of Rules
and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC
Rcd. 14014, at 4-5.
3
The TCPA directed the FCC to prescribe regulations to implement “methods and
procedures for protecting the privacy rights (described in the TCPA) . . . in an efficient,
effective, and economic manner[.]” 47 U.S.C. § 227(c)(2).
8
47 U.S.C. § 227(b)(2)(B).
With that background in mind, we turn to the circuit court’s ruling that the
automated call at issue did not contain an “unsolicited advertisement.” “Unsolicited
advertisement” is defined as follows:
The term unsolicited advertisement means any material
advertising the commercial availability or quality of any
property, goods, or services which is transmitted to any person
without that person’s prior or express invitation or permission,
in writing or otherwise.
47 C.F.R. § 64.1200(f)(13).
The plaintiff argues that the automated message was not an offer to purchase
the car, rather it “was a solicitation seeking to entice the plaintiff into a marketing scheme
intended to generate inspection and car repairs.” According to the plaintiff’s complaint, the
automated message stated “tell us about your vehicle and we’ll give you an offer[.]” The
circuit court concluded that “when an individual responds to a classified ad, and conveys
interest in purchasing the product offered in the classified ad, then such a response does not
constitute an unsolicited advertisement[.]” The legislative history of the TCPA supports the
circuit court’s interpretation, and says that, “persons who knowingly release their phone
numbers have in effect given their invitation or permission to be called at the number which
they have given, absent instructions to the contrary.” Hovila v. Tween Brands, Inc., 2010 WL
1433417 (W.D.Wash. 2010) citing H.R.Rep. No. 102-317, at 13 (1991). The classified
advertisement did not contain any limiting instructions on how a third party was to contact
9
the plaintiff’s son. By posting the advertisement and telephone number on the internet, the
plaintiff’s son expressly invited4 third parties, including the defendants, to make inquiries
about the car. We therefore agree with the circuit court’s conclusion that the automated call
was not an unsolicited advertisement, rather, it was a call made in direct response to an
advertisement by the plaintiff’s son inviting third parties to respond.
The circuit court also concluded that the automated call was not a “telephone
solicitation.” After passage of the TCPA, the FCC adopted regulations providing that no
person or entity may initiate an automated call without the prior express consent of the called
party, unless the call “is made for a commercial purpose but does not include or introduce
an unsolicited advertisement or constitute a telephone solicitation[.]” 47 C.F.R. §
64.1200(a)(2)(iii). “Telephone solicitation” is defined as:
[T]he initiation of a telephone call or message for the purpose of
encouraging the purchase or rental of, or the investment in,
property, goods, or services, which is transmitted to any person,
but such term does not include a call or message:
(i) To any person with that person’s prior express invitation or
permission;
(ii) To any person with whom the caller has an established
business relationship; or
(iii) By or on behalf of a tax-exempt nonprofit organization.
47 C.F.R. § 64.1200(f)(12).
4
We will expand our discussion of “express invitation or permission” in Section
III.C.
10
The FCC’s regulations provide guidance on whether a response to a classified
advertisement can be considered a “telephone solicitation.” In the FCC’s final rules and
regulations implementing the TCPA, the FCC stated that a call by a real estate agent,
representing a potential buyer, to a party who advertised their property for sale, would not
constitute a telephone solicitation, “so long as the purpose of the call is to discuss a potential
sale of the property to the represented buyer.” Rules and Regulations Implementing the
Telephone Consumer Act of 1991, 70 FR 19330-01 (2005). The FCC goes on to state that
“[a] caller responding to a classified ad would not be making a telephone solicitation,
provided the purpose of the call was to inquire about or offer to purchase the product or
service advertised, rather than to encourage the advertiser to purchase, rent, or invest in
property, goods or services.” Id.
According to these regulations, the defendants’ call in response to the classified
advertisement was not a telephone solicitation as long as the purpose of the call was to
inquire about the used car the plaintiff’s son advertised. The plaintiff argues that the purpose
of the call was not only to inquire about the car, it was also to entice the plaintiff to
participate in a marketing scheme designed to generate fees from automobile inspections and
repairs. The plaintiff states that no offer was made during the call, and she (or her son)
would have had to follow a series of steps, including getting the car inspected at Pep Boys,
before an offer would have been made.5
5
The plaintiff also argues that the TCPA places more restrictions on automated
(continued...)
11
The defendants state that the language used in the automated call and the
allegations in the plaintiff’s complaint demonstrate that the purpose of the call was to inquire
about the used car for sale. The automated call stated, “I’m calling you about the vehicle you
have listed for sale . . . we’re willing to give you a cash offer right now.” Based on this
statement and the allegations contained in the plaintiff’s complaint, the circuit court
determined the telephone call was “initiated for the purpose of communicating defendants’
interest in extending a bona fide offer to engage in negotiations that might culminate in a
bona fide offer for the car plaintiff’s son advertised[.]”
We agree with the circuit court’s analysis. This case is analogous to the
example provided in the FCC’s regulations. In that example, a real estate agent is permitted
to call a seller who advertises real estate for sale. An offer would not be expected to be
forthcoming during this initial telephone call, rather, the real estate agent would gather
information about the property and possibly arrange to have the property inspected. In the
present case, the automated call requested more information about the car so that an offer
5
(...continued)
calls than on calls placed by live persons. The FCC’s regulations state that “it is
legitimate and consistent with the Constitution to impose greater restrictions on
automated calls than on calls placed by live persons,” because automated calls “are more
of a nuisance and a greater invasion of privacy[.]” In the Matter of the Telephone
Consumer Protection Act of 1991, 7 F.C.C.R. 2736, (1991). While these regulations call
for greater restrictions on automated calls, the main inquiry remains whether the purpose
of the call was to inquire about the product offered in the classified advertisement or was
to encourage the advertiser to purchase, rent, or invest in property, goods or services.
Neither the TCPA, nor the FCC regulations, state that an automated call inquiring about a
product offered in a classified advertisement constitutes a violation of the statute.
12
could be made. The FCC regulations do not require a party responding to a classified
advertisement to make an offer during the initial call. It would be unusual for a party
responding to a classified advertisement for real estate or a used car to make an offer without
first conducting an inspection. In the FCC’s example, the real estate agent could receive a
commission if the sale is consummated. Similarly, the defendants in the present case could
have received a fee for inspecting the car. These fees do not change the purpose of the initial
call in either the FCC’s hypothetical real estate example or in the present case: the purpose
was to inquire about the item advertised for sale.
We hold that under the Telephone Consumer Protection Act, 47 U.S.C. § 227,
et seq., a caller responding to a classified advertisement is not making a “telephone
solicitation” in violation of the Act, provided the purpose of the call is to inquire about or
offer to purchase the product or service advertised, rather than to encourage the advertiser
to purchase, rent, or invest in property, goods or services. In the present case, we agree with
the circuit court that the defendants were not making a telephone solicitation because they
were responding to a classified advertisement from the plaintiff’s son for the purpose of
gathering information about the item he was advertising for sale.
C. Express Consent
The plaintiff’s next argument is that the automated message violates the TCPA
because she did not expressly consent to receive it. According to the TCPA, “[i]t shall be
13
unlawful for any person within the United States . . . to initiate any telephone call to any
residential telephone line using an artificial or prerecorded voice to deliver a message
without the prior express consent of the called party, unless the call is initiated for emergency
purposes or is exempted by rule or order by the Commission under paragraph 2(B)[.]” 47
U.S.C. § 227(b)(1)(B). (Emphasis added). The exemptions set forth in paragraph 2(B)6
include commercial calls that do not contain the transmission of any unsolicited
advertisement. The TCPA’s definition of “unsolicited advertisement” states that there is no
TCPA violation if an automated message is sent after a party provides her “prior express
invitation or permission” to receive such information.7 In other words, the TCPA and the
FCC regulations state that when an individual provides a “prior express invitation” to be
contacted, a third party receiving this invitation is not required to obtain the individual’s
“prior express consent” before contacting the individual.
The plaintiff’s son placed the plaintiff’s telephone number on the internet and
invited third parties to contact him. After receiving this invitation from the plaintiff, the
defendants placed an automated telephone call to the number provided and expressed an
interest in purchasing the car. The legislative history of the TCPA states that “persons who
knowingly release their phone numbers have in effect given their invitation or permission to
6
See Section III.B. supra.
7
Black’s Law Dictionary defines “invitation to negotiate,” as:
A solicitation for one or more offers, usually as a preliminary
step to forming a contract.
See Black’s Law Dictionary 904 (9th ed. 2009).
14
be called at the number which they have given, absent instructions to the contrary.” Hovila
v. Tween Brands, Inc., 2010 WL 1433417 (W.D.Wash. 2010) citing H.R.Rep. No. 102-317,
at 13 (1991). Based on this legislative history, as well as the plain language of the TCPA and
FCC regulations, we agree with the circuit court’s conclusion that because the plaintiff’s son
provided third parties with an express invitation to contact him, the defendants were not
required to obtain the plaintiff’s “prior express consent” before responding to the classified
advertisement.
D. FCC Citation
After the circuit court dismissed the complaint, the plaintiff filed a motion for
relief pursuant to Rules 59(e) and 60(b) of the West Virginia Rules of Civil Procedure after
being informed that the FCC issued a citation against Pep Boys. “Rule 59(e) of the West
Virginia Rules of Civil Procedure8 provides the procedure for a party who seeks to change
or revise a judgment entered as a result of a motion to dismiss or a motion for summary
judgment.” Syllabus Point 4, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16
(1995). When reviewing a circuit court’s order concerning a Rule 59(e) motion, we typically
apply the standard of review applicable to the underlying judgment that the motion seeks to
8
Rule 59(e) of the West Virginia Rules of Civil Procedure states:
Motion to alter or amend a judgment. - Any motion to
alter or amend the judgment shall be filed not later than 10
days after entry of the judgment.
15
alter or amend. In Syllabus Point 1 of Wickland v. American Travellers Life Ins. Co., 204
W.Va. 430, 513 S.E.2d 657 (1998), we stated:
The standard of review applicable to an appeal from a
motion to alter or amend a judgment made pursuant to
W.Va.R.Civ.P. 59(e), is the same standard that would apply to
the underlying judgment upon which the motion is based and
from which the appeal to this Court is filed.
The underlying judgment the plaintiff’s Rule 59(e) motion addresses is the circuit court’s
order granting the defendant’s motion to dismiss. We therefore apply a de novo standard of
review, the same standard applicable to a motion to dismiss.
A Rule 59(e) motion may be used to correct manifest errors of law or fact, or
to present newly discovered evidence. See In re Transtexas Gas Corp., 303 F.3d 571 (5th Cir.
2002). A motion under Rule 59(e) is not appropriate for presenting new legal arguments,
factual contentions, or claims that could have previously been argued. See Freeman v.
Busch, 349 F.3d 582 (8th Cir. 2003) (“Arguments and evidence which could, and should,
have been raised at an earlier time in the proceedings cannot be presented in a Rule 59(e)
motion.”); Holland v. Big River Minerals Corp., 181 F.3d 597, 605-606 (4th Cir. 1999) (issue
presented for first time in Rule 59(e) motion is not timely raised); Sault Ste. Marie Tribe of
Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (Rule 59(e) motion cannot
raise arguments that were not raised prior to judgment); Santiago v. Canon U.S.A., Inc., 138
F.3d 1, 3-4, (1st Cir. 1998) (new legal theory as to liability may not be raised in motion for
reconsideration); Stone v. Wall, 135 F.3d 1438, 1441-1442 (11th Cir. 1998) (argument that
16
law of other jurisdiction should have applied could not be raised in Rule 59(e) motion);
Global Network Techs., Inc. v. Regional Airport Auth., 122 F.3d 661, 665-666 (8th Cir. 1997)
(evidence that could have been introduced prior to judgment may not be offered through Rule
59(e) motion).
While Rule 59(e) does not itself provide a standard under which a circuit court
may grant a motion to alter or amend, other courts and commentators have set forth the
grounds for amending earlier judgments. For instance, the Litigation Handbook on West
Virginia Rules of Civil Procedure states that a Rule 59(e) motion should be granted where:
“(1) there is an intervening change in the controlling law; (2) new evidence not previously
available comes to light; (3) it becomes necessary to remedy a clear error of law or (4) to
prevent obvious injustice.” Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr.,
Litigation Handbook on West Virginia Rules of Civil Procedure, § 59(e) at 1178-1179 (3d.
Ed. 2008).9 Under Rule 59(e), a party who relies on newly discovered evidence “must
produce a legitimate justification for not presenting the evidence during the earlier
proceeding.” Small v. Hunt, 98 F.3d 789, 798 (4th Cir. 1996). Under Rule 59(e), the
reconsideration of a judgment after its entry is an extraordinary remedy which should be used
sparingly. See Palmer v. Champion Mortgage, 465 F.3d 24, 29 (1st Cir. 2006); Templet v.
See also Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (“Three
grounds for amending an earlier judgment pursuant to Rule 59(e): (1) to accommodate an
intervening change in controlling law; (2) to account for new evidence not available at
trial; or (3) to correct a clear error of law or prevent manifest injustice.”).
9
17
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004); Pacific Ins. Co. v. Amer. Nat. Fire Ins.
Co., 148 F.3d 396, 403 (4th Cir. 1998). See also 11 Wright et. al., Federal Practice and
Procedure § 2810.1 (3d ed. 2010).10
The plaintiff also requested relief under Rule 60(b) of the West Virginia Rules
of Civil Procedure, which provides, in relevant part:
On motion and upon such terms as are just, the court may
relieve a party . . . from final judgment order or proceeding for
the following reasons: (1) Mistake, inadvertence, surprise,
excusable neglect or unavoidable cause; (2) newly discovered
evidence . . .; (3) fraud . . .; (4) the judgment is void; (5) the
judgment has been satisfied, released or discharged . . .; or (6)
any other reason justifying relief from the operation of the
judgment.
10
Rule 59(e) of the West Virginia Rules of Civil Procedure differs from Rule 59(e)
of the Federal Rules of Civil Procedure in only one respect: the Federal Rule requires a
motion to alter to be filed no later than 28 days after judgment is entered whereas the
West Virginia rule requires the motion to be filed no later than 10 days after judgment is
entered. Justice Cleckley commented on this 10 day time limit in Powderidge Unit
Owners Association v. Highland Properties, Ltd., 196 W.Va. 692, 704, 474 S.E.2d 872,
884 (1996), stating:
When a party filing a motion for reconsideration does
not indicate under which West Virginia Rule of Civil
Procedure it is filing the motion, the motion will be
considered to be either a Rule 59(e) motion to alter or amend
a judgment or a Rule 60(b) motion for relief from a judgment
order. If the motion is filed within ten days of the circuit
court’s entry of judgment, the motion is treated as a motion to
alter or amend under Rule 59(e). If the motion is filed outside
the ten-day limit, it can only be addressed under Rule 60(b).
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This Court accords broad discretion to a circuit court deciding a Rule 60(b) motion. “A
motion to vacate a judgment made pursuant to Rule 60(b), W.Va. R.C.P., is addressed to the
sound discretion of the court and the court’s ruling on such motion will not be disturbed on
appeal unless there is a showing of an abuse of such discretion.” Syllabus Point 5, Toler v.
Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).
The plaintiff argues that the circuit court erred by failing to grant her motion
for relief after being informed that the FCC issued a citation against Pep Boys. The plaintiff
filed a consumer complaint with the FCC twelve days after the circuit court granted the
defendants’ motion to dismiss. The citation the FCC sent to the defendants states, “[t]he
complaints (attached to the citation) address alleged TCPA violation(s)[.]” (Emphasis added.)
The FCC citation was based on the plaintiff’s consumer complaint. The defendants did not
respond to the complaint before receiving the citation and argue that it is “merely a complaint
or ‘charge’ consisting of allegations, not a decision of liability or a determination on the
merits.”
The plaintiff argues that this citation is the FCC’s interpretation of its own
regulations and is therefore entitled to considerable weight and deference. In Syllabus Point
4 of Security Nat. Bank & Trust Company v. First W.Va. Bancorp, Inc., 166 W.Va. 775, 277
S.E.2d 613 (1981), we held, “[i]nterpretations of statutes by bodies charged with their
administration are given great weight unless clearly erroneous.” The problem with the
plaintiff’s argument is that the citation is a form document that does not detail what, if any,
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investigation the FCC undertook prior to issuing it. This form document was issued before
the defendants had an opportunity to respond to it. By contrast, the circuit court ruled on the
motion to dismiss after considering the briefs and oral arguments of both parties, and
analyzing these arguments under the TCPA. The circuit court issued a detailed order
explaining its reasons for granting the motion to dismiss. Because we have the briefs the
parties filed before the circuit court, the transcript of the oral argument and the circuit court’s
order before us, we can meaningfully review the circuit court’s conclusions. It is difficult
to perform a similar review of a form document that cites “alleged” violations.
The plaintiff contends that the citation entitles her to relief pursuant to Rule
59(e) because it is new evidence that has come to light since the dismissal order. However,
the plaintiff offers no explanation why the FCC citation could not have been filed and
presented to the circuit court prior to entry of judgment. The plaintiff’s failure to file her
consumer complaint with the FCC prior to the judgment does not make the citation “new
evidence” for purposes of Rule 59(e).
Similarly, the plaintiff has failed to show that the circuit court abused its
discretion in denying her motion pursuant to Rule 60(b). “A circuit court is not required to
grant a Rule 60(b) motion unless a moving party can satisfy one of the criteria enumerated
under it.” Powderidge Unit Owners Association v. Highland Properties, Ltd., 196 W.Va.
692, 706, 474 S.E.2d 872, 886 (1996). The plaintiff failed to establish that the form citation
entitles her to relief under any of the six grounds set forth by Rule 60(b). We therefore find
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that the circuit court did not abuse its discretion by denying the plaintiff’s motion for relief
pursuant to Rule 60(b).
IV. Conclusion
The circuit court’s orders granting the defendants’ motion to dismiss and
denying the plaintiff’s motion for post-judgment relief are affirmed.
Affirmed.
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