LaBranche v. Nestor I, LLC, et al, No. 2:2018cv08399 - Document 54 (E.D. La. 2019)

Court Description: ORDER AND REASONS denying 53 Motion for Reconsideration. Signed by Judge Susie Morgan on 8/19/2019. (sbs)
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LaBranche v. Nestor I, LLC, et al Doc. 54 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J AMIE LABRAN CH E, Plain tiff CIVIL ACTION VERSU S N O. 18 -8 3 9 9 N ESTOR I LLC, ET AL., D e fe n d an ts SECTION “E” ( 4 ) ORD ER AN D REAS ON S Before the Court is a Motion for Reconsideration filed by pro se Plaintiff J am ie LaBranche. 1 For the following reasons, the order is D EN IED . BACKGROU N D This case arises out of state court foreclosure proceedings filed again st J am ie an d Kim LaBranche. 2 Defendant Nestor I, LLC (“Nestor”) was a plaintiff in the state foreclosure proceeding. 3 J ohn Clyde Morris, IV, of Dean Morris, LLC (“Dean Morris”) was Nestor’s counsel of record in the state court proceeding as of October 17, 20 11. 4 On Septem ber 5, 20 15, Plaintiff filed a com plaint 5 in this Court against Nestor and Dean Morris, LLC alleging violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) 6 and the Fair Debt Collection Practices Act (“FDCPA”) 7 in connection with the state foreclosure proceedings. On Novem ber 2, 20 18, Nestor and Dean Morris filed m otions to dism iss both causes of action again st them . 8 They argued, 1 R. Doc. 53. The procedural history of the state foreclosure action is laid out in the Court’s Order and Reasons of April 29, 20 19. R. Doc. 32 at 1– 2. 3 R. Doc. 18 -8 . 4 R. Doc. 18 -3. 5 R. Doc. 1. 6 18 U.S.C. § 1962(b). 7 15 U.S.C. § 1692. 8 R. Docs. 18 , 19. 2 1 Dockets.Justia.com pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, this Court lacks subject m atter jurisdiction un der the Rooker-Feldm an doctrine, which states federal courts lack jurisdiction to review final state court judgm ents. 9 They also argued under Rule 12(b)(6) Plaintiff failed to state a claim pursuant to the FDCPA or RICO. 10 Plaintiff opposed. 11 On April 29, 20 19, the Court ruled on the m otions to dism iss filed by Nestor and Dean Morris. 12 The Court found Plaintiff failed to state a claim under the FDCPA or RICO. 13 The Court granted Plaintiff leave to amend his FDCPA claim against Dean Morris and his RICO claim s against Nestor and Dean Morris. 14 However, because the Fifth Circuit has held “m ortgage com panies collecting debts are not ‘debt collectors’” for purposes of the FDCPA, 15 the Court did not perm it Plaintiff to am end his FDCPA claim against Nestor. 16 The Court ordered Plaintiff to file his am en ded com plaint by May 10 , 20 19. 17 On May 7, 20 19, Plaintiff filed a docum ent, entitled “Ordered Am ended Com plaint,”18 requesting reconsideration of the Court’s Order and Reasons of April 29, 20 19. 19 He also requested he be perm itted to file the am en ded com plaint under seal. 20 On May 10 , 20 19, the Court issued an Order and Reasons construing the filing as a m otion for reconsideration or, in the alternative, a m otion to file the am ended com plaint under 9 R. Doc. 18 -1 at 8 – 10 ; R. Doc. 19-1 at 10 – 13. R. Doc. 18 -1 at 10 – 12; R. Doc. 19-1 at 8 – 10 . 11 R. Docs. 24, 25. 12 R. Doc. 32. 13 Id. at 8– 12. 14 Id. at 12– 13. 15 Perry v. Stew art Title Co., 756 F.2d 1197, 120 8 (5th Cir. 1985) (“The legislative history of section 1692a(6) indicates conclusively that a debt collector does not in clude the consum er’s creditors, a m ortgage servicing com pany, or an assign ee of a debt, as lon g as the debt was not in default at the tim e it was assigned”). 16 R. Doc. 32 at 12. 17 Id. at 13. 18 R. Doc. 33. 19 R. Doc. 32. 20 R. Doc. 33. 10 2 seal. 21 The Court denied both m otions and extended Plaintiff’s deadline to am ended his com plaint to May 17, 20 19. 22 On May 15, 20 19, Plaintiff filed a m otion to recuse. 23 On May 23, 20 19, the Court denied his m otion to recuse and held a status conference with the parties. 24 Plaintiff was present and represented him self. 25 The Court granted Plaintiff a second extension , m oving his deadline to file an am ended com plaint to May 30 , 20 19. 26 On May 29, 20 19, Plaintiff filed a notice of appeal. 27 On J une 4, 20 19, the Court issued an Order and Reasons clarifying that there had been no final judgm ent in this case. 28 The Court granted Plaintiff a third exten sion, extending his deadline to am en d his com plaint to J une 11, 20 19. 29 The Court stated, if Plaintiff did not am end, it would dism iss his com plaint with prejudice. 30 On J une 12, 20 19, Plaintiff m oved for an extension of tim e to am end his com plaint. 31 The Court granted a fourth extension, giving Plaintiff until J une 27, 20 19 to am end. 32 Plaintiff did not file an am ended com plaint by J une 27, 20 19. On J une 28, 20 19, the Court held a status conference, at which the Court extended Plaintiff’s deadline to am end his com plaint for a fifth tim e, to J uly 1, 20 19 at 5:0 0 p.m . 33 The Court inform ed Plaintiff that failure to am end would result in his claim s being dism issed with prejudice. 34 21 R. Doc. 34. Id. 23 R. Doc. 35. 24 R. Doc. 39. 25 Id. 26 Id. 27 R. Doc. 41. 28 R. Doc. 44. The appeal was dism issed on J une 24, 20 19. R. Doc. 47. 29 Id. 30 Id. 31 R. Doc. 45. 32 R. Doc. 46. 33 R. Doc. 50 . 34 Id. 22 3 On J uly 1, 20 19, Plaintiff filed a docum ent entitled “Am ended Com plaint/ Ex Parte Motion to Appoint Attorney.”35 He did not am end his com plaint, but rather m oved for appointm ent of an attorney. The Court denied Plaintiff’s m otion to appoint an attorney because there is no right to counsel in a civil case, and Plaintiff has not alleged m eritorious claim s. Further, because the Court granted Plain tiff five extensions, Plaintiff never am ended his com plaint, an d for reasons set forth in the Court’s Order and Reasons of April 29, 20 19, 36 the Court dism issed Plaintiff’s claim s with prejudice. 37 In the m otion for reconsideration now before the Court, Plaintiff asks the court to am end its J uly 1st judgm ent, reinstate the case, and appoint coun sel to Plaintiff. 38 LEGAL STAN D ARD A m otion for reconsideration pursuant to Rule 59(e) of the Federal Rules of Civil Procedure “m ust clearly establish either a m anifest error of law or fact or m ust present newly discovered evidence an d cannot be used to raise argum ents which could, and should, have been m ade before the judgm ent issued.”39 A m otion for reconsideration, however, “is ‘not the proper vehicle for rehashing eviden ce, legal theories, or argum ents that could have been offered or raised before the entry of [the order].’”40 “The Court is 35 R. Doc. 49. R. Doc. 32. 37 R. Doc. 51. 38 R. Doc. 53. Plaintiff did not explicitly state he wanted the Court to reconsider the dism issal of his case, but to appoint counsel, the Court also would have to reinstate the case. As a result, the Court will construe Plaintiff’s m otion to ask for reconsideration of both the dism issal and the decision to deny appointing counsel. 39 Schiller v. Phy sicians Resource Group Inc., 342 F.3d 563, 567 (5th Cir. 20 0 3) (citations om itted) (internal quotation m arks om itted). Plaintiff does not state his m otion is filed pursuant to Rule 59(e), but it is the only applicable rule in this case because Plaintiff is requestin g the Court “alter” its decision, as stated in Federal Rule of Civil Procedure 59(e). He is not asking for m ere “relief” for a judgm ent as stated in Federal Rule of Civil Procedure 60 . 40 Lacoste v. Pilgrim Int’l, No. 0 7-290 4, 20 0 9 WL 1565940 , at *8 (E.D. La. J une 3, 20 0 9) (Vance, J .) (quotin g Tem plet v. Hy droChem Inc., 367 F.3d 473, 478– 79 (5th Cir. 20 0 4)). 36 4 m indful that ‘[r]econsideration of a judgm ent after its entry is an extraordinary rem edy that should be used sparingly.’”41 “When there exists no in dependent reason for reconsideration other than m ere disagreem ent with a prior order, reconsideration is a waste of judicial tim e and resources an d should not be granted.”42 In deciding m otions under the Rule 59(e) standards, the courts in this district have considered the following factors: (1) whether the m ovant dem onstrates the m otion is necessary to correct m anifest errors of law or fact upon which the judgm ent is based; (2) whether the m ovant presents new evidence; (3) whether the m otion is necessary in order to prevent m anifest injustice; an d (4) whether the m otion is justified by an intervening change in the controlling law. 43 Plaintiff does not present any n ew eviden ce or argue reconsideration “is justified by an intervening change in the controlling law.”44 Accordingly, Plaintiff can only dem onstrate reconsideration is appropriate because it is necessary to (1) correct m anifest errors of law or fact or (2) prevent m anifest injustice. 45 LAW AN D AN ALYSIS “There is no right to appointed counsel in civil cases, and [courts] do not appoint counsel unless the case presents extraordinary circum stances warranting an 41 Castrillo v. Am . Hom e M ortg. Servicing, Inc., No. 0 9-4369, 20 10 WL 1424398, at *4 (alteration in original) (quoting Tem plet, 367 F.3d at 479). 42 Lightfoot v. Hartford Fire Ins. Co., No. 0 7-4833, 20 12 WL 711842, at *3 (E.D. La. Mar. 5, 20 12) (Brown, J .). 43 Castrillo, 20 10 WL 1424398, at *4. The Court notes that the tim e lim its of Rule 59 do not apply in this m atter because the order appealed is interlocutory. Rules 59 and 60 set forth deadlines for seeking reconsideration of final judgm ents. See Carter v. Farm ers Rice Milling Co., Inc., 33 F. App’x 70 4 (5th Cir. 20 0 2); Lightfoot, 20 12 WL 711842, at *2. 44 Castrillo, 20 10 WL 1424398, at *4. 45 Id. 5 appointm ent.”46 Under 28 U.S.C. § 1915(e)(1), the decision to appoint counsel is entirely within the court’s discretion. 47 In m aking this decision, the court should consider “the type and com plexity of the case, the litigant’s ability to investigate and present the case, and the level of skill required to present the evidence.”48 In this case, Plaintiff has not shown his civil case is so “extraordin ary” as to warrant appointm ent of counsel, especially on a m otion to reconsider under the dem anding burden of Rule 59(e). Plaintiff m akes two substantive points in support of his m otion for reconsideration. First, he argues his case is so com plex it warrants the appointm ent of counsel. 49 Second, he argues he deserves court appointed counsel because he suffers a learning disability and is not com petent to represent him self. 50 Neither of these argum ents proves successful. Every civil lawsuit is in som e ways com plex, but not every lawsuit warrants court appointed counsel. It is only those extraordinarily com plex cases that require such extraordin ary m easures. 51 Plaintiff has alleged nothing, and there is nothing, about this case that m akes it especially com plex. In fact, courts have previously denied appointing counsel in exactly these types of cases. 52 46 Hudson v. Univ. of Tex. M ed. Branch, 441 F. App'x 291, 293 (5th Cir. 20 11). Marquez v. W oody , 440 F. App'x 318, 326 (5th Cir. 20 11). 48 Id. 49 R. Doc. at 2. 50 Id. 51 Hudson, 441 F. App'x at 293. 52 See, e.g., Quinn v . Deutsche Bank N at. Tr. Co., 625 F. App’x 937 (11th Cir. 20 15) (holding the District Court did not abuse its discretion by refusing to appoint counsel to represent m ortgagor in m ortgagor’s Fair Debt Collection Practices Act action against m ortgagee); Lam b v. Packard Elec. Co., No. CIV. 90 -4760 , 1990 WL 20 438 6, at *1 (E.D. Pa. Dec. 11, 1990 ) (refusin g to appoint counsel to plaintiff in a civil RICO case). 47 6 Moreover, Plaintiff has not dem onstrated he is in particular need of counsel based on his own inabilities. To the contrary, Plaintiff has been litigating against these Defendants for alm ost four years and has shown no obvious inability to argue his case. 53 Lastly, Plaintiff has n ot shown his case warrants the highly unusual rem edy of reconsideration under Rule 59(e). Plaintiff has not shown there is any underlying error of law of fact—after five extensions, he still has not am ended his com plaint so as to state a claim upon which relief m ay be granted. 54 And for sim ilar reasons he has not dem onstrated any “m anifest injustice” resulting from the Court’s judgm ent. CON CLU SION For the forgoing reasons, IT IS ORD ERED that Plaintiff’s Motion for Reconsideration 55 is D EN IED . N e w Orle a n s , Lo u is ian a, th is 19 th d ay o f Au gu s t, 2 0 19 . _____________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 53 R. Doc. 1. R. Doc. 51. 55 R. Doc. 53. 54 7