Inserra v. Pinnacle Services Inc., No. 3:2022cv00300 - Document 32 (D. Nev. 2023)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (ECF No. 29 ) - For the reasons stated herein, IT IS ORDERED that Inserra's motion for reconsideration or, in the alternative, for an order permitting an interlocutory appeal, (ECF No. 29 ), is DENIED. IT IS FURTHER ORDERED that the parties shall have until Friday, June 30, 2023 to file their joint proposed pretrial order (6/30/2023). Signed by Magistrate Judge Carla Baldwin on 5/31/2023. (Copies have been distributed pursuant to the NEF - CJS)
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Inserra v. Pinnacle Services Inc. Doc. 32 Case 3:22-cv-00300-CLB Document 32 Filed 05/31/23 Page 1 of 7 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 Case No. 3:22-CV-00300-CLB 1 TONI INSERRA, 5 v. 6 7 8 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION PINNACLE SERVICES INC. dba SUMMIT COLLECTION SERVICES, [ECF No. 29] Defendant. 9 10 This case involves alleged violations of the Fair Debt Collection Practices Act, 15 11 U.S.C. § 1692, et seq. (“FDCPA”) by Plaintiff Toni Inserra (“Inserra”) against Defendant 12 Pinnacle Services Inc., dba Summit Collection Services (“Summit”) arising from the 13 collection of a debt. Currently pending before the Court is Inserra’s motion for 14 reconsideration of this Court’s order granting, in part, and denying, in part, Inserra’s 15 motion for summary judgment. (ECF No. 29). Summit opposed the motion, (ECF No. 16 30), and Inserra replied. (ECF No. 31). For the reasons stated below, the Court denies 17 Inserra’s motion for reconsideration. (ECF No. 29). 18 I. RELEVANT BACKGROUND 19 Inserra filed this lawsuit on July 1, 2022, alleging violations of the FDCPA against 20 Summit. (ECF No. 1.) Specifically, the complaint asserts and alleges the following 21 specific violations of the FDCPA: 22 (1) § 1692d by harassing, oppressing, and abusing Inserra when it continued 23 to contact her after multiple demands to cease, in an attempt to force her to 24 pay the Debt. 25 26 27 28 The parties consented to the undersigned’s jurisdiction to conduct all proceedings and order the entry of final judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (ECF No. 14). 1 Dockets.Justia.com Case 3:22-cv-00300-CLB Document 32 Filed 05/31/23 Page 2 of 7 1 (2) § 1692d by harassing, oppressing, and abusing Inserra when it continued 2 to call her, leaving multiple voice messages after her demand for all 3 communications to be in writing. 4 (3) § 1692e(2)(A) by falsely representing the character, amount, and legal 5 status of the Debt by seeking amounts not authorized between Inserra and the 6 Creditor and by falsely claiming that the Debt was subject to a collection 7 action. 8 (4) Initial Collection Letter when it had no intent to file a lawsuit against her and 9 had not filed or approved a lawsuit for filing. 10 11 § 1692e(5) by threatening legal action against Inserra for the Debt in its (5) § 1692e(5) by using fake “case numbers” and falsely claiming each call 12 was its “final attempt” thereby threatening legal action against Inserra for the 13 Debt when it had no intent to file a lawsuit against her and had not filed or 14 approved a lawsuit for filing. 15 (6) § 1692e(10) by violating the Consumer Financial Protection Bureau Rule 16 and including extraneous information in its calls to Inserra to coerce her into 17 paying the Debt. 18 (7) was its “final attempt” in order to deceive Inserra into paying the Debt. 19 20 (8) § 1692e(11) by failing to provide a “mini-Miranda” warning with each communication made to Inserra to collect the Debt. 21 22 § 1692e(10) by using fake “case numbers” and falsely claiming each call (9) § 1692f by using unfair or unconscionable means to collect or attempt to 23 collect the Debt by making false and empty threats of litigation against Inserra 24 and providing Inserra with fake “case numbers” to coerce her into paying the 25 Debt. 26 (10) § 1692f(1) by seeking to collect interest, fees, charges, and expenses not 27 expressly authorized by the agreement creating the Debt or permitted by law 28 by seeking to collect the Debt when Inserra does not owe the Debt. 2 Case 3:22-cv-00300-CLB Document 32 Filed 05/31/23 Page 3 of 7 1 (Id. at 6-7.) 2 On May 10, 2023, this Court ruled on Inserra’s motion for summary judgment. 3 (ECF No. 28.) Specifically, the Court granted Inserra’s motion for summary judgment 4 insofar as it determined there were no genuine issues of material fact that: (1) Inserra is 5 a consumer; (2) the debt arises out of a transaction entered into for personal, family, or 6 household purposes; and (3) Summit is a debt collector. (Id. at 14.) The Court denied 7 Inserra’s motion for summary judgment finding there are genuine issues of material fact 8 as to whether Summit violated any of the provisions of the FDCPA. (Id.) Inserra now 9 moves for reconsideration under Federal Rule of Civil Procedure 59(e), or alternatively, 10 requests an order permitting an interlocutory appeal under 28 U.S.C. § 1292(b). (ECF 11 No. 29.) 12 II. LEGAL STANDARD 13 Rule 59(e) permits a district court to reconsider and amend a previous order. 14 Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Nevertheless, a 15 court should generally leave a previous decision undisturbed absent a showing of clear 16 error or manifest injustice. Abada v. Charles Schwab & Co., Inc., 127 F.Supp.2d 1101, 17 1102, (S.D. Cal. 2000). A motion to reconsider must set forth the following: (1) some 18 valid reason why the court should revisit its prior order; and (2) facts or law of a “strongly 19 convincing nature” in support of reversing the prior decision. ESCO Corp. v. Cashman 20 Equip. Co., 158 F.Supp.3d 1051, 1076 (D. Nev. 2016) (internal quotation omitted). “A 21 district court generally should not grant a [motion for reconsideration] in the absence of 22 newly discovered evidence, clear error, or an intervening change in the controlling law.” 23 Wells Fargo Bank, N.A. v. Mahogany Meadows Avenue Trust, 979 F.3d 1209, 1218 (9th 24 Cir. 2020) (internal quotations omitted); Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 25 2014). A motion for reconsideration is properly denied where it presents no new 26 arguments or evidence. See United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 27 772, 780 (9th Cir. 2009). However, it “may not be used to raise arguments or present 28 evidence for the first time when they could reasonably have been raised earlier in the 3 Case 3:22-cv-00300-CLB Document 32 Filed 05/31/23 Page 4 of 7 1 litigation.” Wells Fargo Bank, N.A., 979 F.3d at 1218 (citing Kona Enters., Inc. v. Estate 2 of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). Motions to reconsider are granted rarely. 3 See, e.g., School Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 4 (9th Cir. 1993). 5 III. DISCUSSION 6 Inserra’s motion asks that the Court reconsider the denial of summary judgment 7 and find the following: (1) whether Inserra owes the debt in question is irrelevant to 8 Summit’s failure to provide the mini-Miranda warnings to Inserra, failure to cease and 9 desist verbal contact, and its false claims about a pending “case” and its ongoing “final 10 attempts” to contact her and thus, the Court should reverse its denial of summary 11 judgment accordingly; (2) that the December 8, 2021, December 23, 2021, and 12 December 30, 2021 calls violate her cease and desist demand and Section 1692d; (3) 13 Summit’s failure to provide the disclosures under Section 1692e(11) warrant entry of 14 judgment against Summit; and (4) reconsider finding of materiality as it relates to 15 Summit’s misrepresentations violating Section 1692e and 1692e(10). (ECF No. 29.) 16 Alternatively, Inserra requests permission to appeal the interlocutory order under 28 17 U.S.C. § 1292(b). (Id. at 8-9.) Inserra’s motion asks that the Court reconsider its ruling 18 on her Section 1692d, 1692d(5), 1692e, 1692e(10), and 1692e(11) claims only, since 19 the 1692e(2)(A) and 1692f(1) claims require a determination of whether the balance is 20 correctly calculated, which is a question of fact for the jury. (ECF No. 31.) 21 Having reviewed the motion, arguments, and cases cited, the Court finds that 22 Inserra’s motion does not offer any newly discovered evidence, does not demonstrate 23 clear error or that the Court’s decision was manifestly unjust, and there has not been an 24 intervening change in controlling law. See Wells Fargo Bank, N.A., 979 F.3d at 1218. 25 Thus, the Court does not find reconsideration appropriate and denies the motion 26 accordingly. 27 A. Request for Interlocutory Appeal 28 Inserra’s motion alternatively requests an order permitting an interlocutory appeal 4 Case 3:22-cv-00300-CLB Document 32 Filed 05/31/23 Page 5 of 7 1 under 28 U.S.C. § 1292(b). (ECF No. 29.) 2 Pursuant to 28 U.S.C. § 1292(b), a party may appeal a non-final order “upon the 3 consent of both the district court and the court of appeals.” In re Cement Antitrust Litig. 4 (MDL No. 296), 673 F.2d 1020, 1025-26 (9th Cir. 1981) (“In re Cement”). A movant 5 seeking an interlocutory appeal has a heavy burden to show that “exceptional 6 circumstances justify a departure from the basic policy of postponing appellate review 7 until after the entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 8 475 (1978) (quoting Fisons Ltd. v. United States, 458 F.2d 1241, 1248 (7th Cir. 1972)); 9 see also Pac. Union Conference of Seventh-Day Adventists v. Marshall, 434 U.S. 1305, 10 1309 (1977) (“The policy against piecemeal interlocutory review other than as provided 11 for by statutorily authorized appeals is a strong one.” (citation omitted)); James v. Price 12 Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002) (“Section 1292(b) is a 13 departure from the normal rule that only final judgments are appealable, and therefore 14 must be construed narrowly.”). Indeed, 1292(b) is to be “used only in exceptional 15 situations in which allowing an interlocutory appeal would avoid protracted and 16 expensive litigation.” In re Cement, 673 F.2d at 1026. And, importantly, “[s]ection 17 1292(b) was not intended to make denials of summary judgment routinely appealable[.]” 18 Ahrenholz v. Bd. Of Tr. of University of Illinois, 219 F.3d 674, 676 (7th Cir. 2000). 19 A district court has discretion to certify an order for interlocutory appeal if the three 20 following criteria are met: (1) the order involves a controlling question of law; (2) there is 21 substantial ground for difference of opinion; and (3) an immediate appeal from the order 22 may materially advance the ultimate termination of the litigation. In re Cement, 673 F.2d 23 at 1026. “Even when all three statutory criteria are satisfied, district court judges have 24 ‘unfettered discretion’ to deny certification.” Brizzee v. Fred Meyer Stores, Inc., Case No. 25 04-1566-ST, 2008 WL 426510, at *3 (D. Or. Feb 13. 2008) (quoting Ryan, Beck & Co., 26 LLC v. Fakih, 275 F.Supp.2d 393, 396 (E.D. N.Y. 2003)). 27 First, a question is “controlling” when “resolution of the issue on appeal could 28 materially affect the outcome of the litigation in the district court.” In re Cement, 673 F.2d 5 Case 3:22-cv-00300-CLB Document 32 Filed 05/31/23 Page 6 of 7 1 at 1026. Elaborating, our sister circuits have articulated that “what the framers of § 2 1292(b) had in mind is more of an abstract legal issue or what might be called one of 3 ‘pure’ law, matters the court of appeals ‘can decide quickly and cleanly without having to 4 study the record.’” McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1258 (11th Cir. 5 2004) (quoting Ahrenholz, 219 F.3d at 677). “The legal question must be stated at a high 6 enough level of abstraction to lift the question out of the details of the evidence or facts 7 of a particular case and give it general relevance to other cases in the same area of law. 8 And the answer to that question must substantially reduce the amount of litigation left in 9 the case.” Id. at 1259. 10 While Inserra has framed its question to appear as a “pure” question of law, the 11 Court's order on summary judgment is uniquely tied to the factual questions at play in 12 this case. Further, Inserra's question is not a “fundamental” issue to this case, such as 13 whether a party is necessary and proper, whether a court has jurisdiction, or what is the 14 correct choice of law. See United States v. Woodbury, 263 F.2d 784, 787 (9th Cir. 1959). 15 Accordingly, the Court declines to find Inserra's question controlling. 16 Second, a “substantial ground for difference of opinion exists where reasonable 17 jurists might disagree on an issue's resolution, not merely where they have already 18 disagreed. Stated another way, when novel legal issues are presented, on which fair- 19 minded jurists might reach contradictory conclusions, a novel issue may be certified for 20 interlocutory appeal without first awaiting development of contradictory precedent.” 21 Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011). “Courts 22 traditionally will find that a substantial ground for difference of opinion exists where ‘the 23 circuits are in dispute on the question and the court of appeals of the circuit has not 24 spoken on the point, if complicated questions arise under foreign law, or if novel and 25 difficult questions of first impression are presented.’” Couch v. Telescope Inc., 611 F.3d 26 629, 633 (9th Cir. 2010) (quoting 3 Federal Procedure, Lawyers Edition § 3:212 (2010) 27 (footnotes omitted)). 28 As explained above, the Court's ruling is factually specific to the circumstance in 6 Case 3:22-cv-00300-CLB Document 32 Filed 05/31/23 Page 7 of 7 1 this case. While Inserra disagrees with the Court's ruling and interpretation of well settled 2 case law, simply that it may “be applied differently does not establish a substantial 3 ground for difference of opinion.” Couch, 611 F.3d at 633. 4 Finally, resolution of the question will not materially advance the ultimate 5 termination of the litigation. Inserra has only asked for reconsideration on rulings as to 6 specific claims but has acknowledged other claims present questions of fact for the jury. 7 (ECF No. 31.) Further, the parties have been directed to file their joint proposed pretrial 8 order, and the Court anticipates this case will be set for trial in the coming months, 9 barring any unforeseen circumstances. Therefore, it is clear to the Court that this case 10 will be resolved long before the Ninth Circuit could rule on this interlocutory appeal, 11 ultimately, resulting in further delay of this case. See Shurance v. Planning Control 12 Intern., Inc., 839 F.2d 1347, 1348 (9th Cir. 1988) (“Indeed, an interlocutory appeal might 13 well have the effect of delaying the resolution of this litigation, for an appeal probably 14 could not be completed before July, 1988, when trial is currently scheduled.”); 15 Ahrenholz, 219 F.3d at 676 (reasoning that interlocutory appeals “delay the litigation in 16 the district court, since the proceedings in that court normally grinds to a halt as soon as 17 the judge certifies an order in the case for an immediate appeal.”). Accordingly, Inserra’s request for an order permitting an interlocutory appeal is 18 19 denied. 20 IV. CONCLUSION 21 For the reasons stated above, IT IS ORDERED that Inserra’s motion for 22 reconsideration or, in the alternative, for an order permitting an interlocutory appeal, 23 (ECF No. 29), is DENIED. 24 IT IS FURTHER ORDERED that the parties shall have until Friday, June 30, 25 2023 to file their joint proposed pretrial order. 26 DATE: May 31, 2023. 27 28 ______________________________________ UNITED STATES MAGISTRATE JUDGE 7
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