Rosco et al v. Montgomery Purdue Blankinship & Austin PLLC et al, No. 2:2018cv00240 - Document 35 (E.D. Wash. 2019)
Court Description: ORDER DENYING 30 MOTION FOR RECONSIDERATION. Signed by Judge Rosanna Malouf Peterson. (LR, Case Administrator) (Service of Notice on parties not registered as users of the Court CM/ECF system accomplished via USPS mail.)
Download PDF
<![CDATA[
Rosco et al v. Montgomery Purdue Blankinship & Austin PLLC et al Doc. 35 1 2 3 4 5 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 6 Feb 12, 2019 SEAN F. MCAVOY, CLERK 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF WASHINGTON 10 11 RUSSELL D. ROSCO and BONNIE R. ROSCO, Plaintiffs, 12 13 14 15 16 17 NO: 2:18-CV-240-RMP ORDER DENYING MOTION FOR RECONSIDERATION v. MONTGOMERY PURDUE BLANKINSHIP & AUSTIN, PLLC; SCHUCKIT & ASSOCIATES, PC; TRANSUNION, LLC; SCOTT BRADY; EXPERIAN INFORMATION SOLUTIONS, INC.; and FIRST BANK MORTGAGE, 18 Defendants. 19 20 21 BEFORE THE COURT is Plaintiffs Russell D. Rosco and Bonnie R. Rosco’s Motion for Reconsideration, ECF No. 30. Plaintiffs ask this Court to reconsider its ORDER DENYING MOTION FOR RECONSIDERATION ~ 1 Dockets.Justia.com 1 order granting the motions to dismiss Plaintiffs’ complaint filed by Defendants 2 Montgomery Purdue Blankinship & Austin, PLLC (“Montgomery Purdue”), 3 Schuckit & Associates, P.C. (“Schuckit”), Trans Union, LLC (“Trans Union”), Scott 4 Brady, Experian Information Solutions, Inc. (“Experian”), and First Bank 5 Mortgage’s (“First Bank”) (collectively, “Defendants”). ECF No. 28. The Court 6 has considered the parties’ briefings and the record, and is fully informed. 7 8 BACKGROUND This Court is very familiar with Plaintiffs from their multiple filings against 9 Defendants before this Court. ECF No. 28 at 2–4 (detailing Plaintiffs’ litigation 10 history). The latest litigation attempt by Plaintiffs was a complaint alleging that 11 Defendants were liable for defamation, publication of private information, and 12 unjust enrichment. ECF No. 1-1. The Court dismissed Plaintiffs’ complaint for lack 13 of subject matter jurisdiction as to the defamation claims and barred by res judicata 14 for the other claims. ECF No. 28. The Court also imposed a pre-filing injunction 15 against Plaintiffs as to any future claims filed against Trans Union, Experian, and 16 First Bank. Id. at 20. 17 Undeterred by this Court’s numerous warnings to Plaintiffs regarding their 18 vexatious litigation habits, Plaintiffs filed the present motion for reconsideration as 19 to the Court’s order dismissing Plaintiffs’ complaint. ECF No. 30. They argue that 20 the Court committed clear error when it allowed Trans Union to “benefit from the 21 defamation of character by their attorneys,” when it dismissed the publication of ORDER DENYING MOTION FOR RECONSIDERATION ~ 2 1 private information claims, and by finding that there was no settlement agreement 2 with Experian. Id. Plaintiffs also ask for sanctions against Experian. Id. at 3. 3 4 LEGAL STANDARD A motion for reconsideration under Fed. R. Civ. P. Rule 59(e) should not be 5 granted, “absent highly unusual circumstances, unless the district court is presented 6 with newly discovered evidence, committed clear error, or . . . there is an intervening 7 change in the controlling law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 8 665 (9th Cir. 1999). A litigant may not use a motion for reconsideration “to raise 9 arguments or present evidence for the first time when they could reasonably have 10 been raised earlier in the litigation.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 11 877, 890 (9th Cir. 2000). In addition, “[a] motion for reconsideration cannot be used 12 to ask the Court to rethink what the Court has already thought through merely 13 because a party disagrees with the Court’s decision.” Collegesource, Inc. v. 14 Academyone, Inc., No. 08CV1987-GPC(MDD), 2015 WL 8482753, at *1 (S.D. Cal. 15 Dec. 8, 2015). 16 “Granting a motion for reconsideration is a matter of judicial discretion and is 17 considered to be an ‘extraordinary remedy, to be used sparingly in the interests of 18 finality and conservation of judicial resources.’” United States v. Bamdad, No. CR 19 08-506-GW, 2017 WL 4064210, at *5 n.11 (C.D. Cal. May 3, 2017) (quoting 20 Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003)). 21 ORDER DENYING MOTION FOR RECONSIDERATION ~ 3 1 DISCUSSION 2 Plaintiffs’ Arguments on Defamation, Publication of Private Information, and 3 Res Judicata 4 Plaintiffs argue that Trans Union is benefitting from the alleged defamation of 5 Plaintiffs’ character and that the publication of private information claim is not 6 barred by res judicata. ECF No. 30 at 1. 7 First, the Court made no ruling on the merits of Plaintiffs’ defamation claims 8 against Defendants. As this Court held in its order, the Court has no subject matter 9 jurisdiction over the defamation claims. ECF No. 28 at 8. Plaintiffs are free to bring 10 the defamation claims against Defendants in a court with subject matter jurisdiction 11 over the claims. The Court did not commit clear error as to the defamation claims. 12 Second, Plaintiffs argue that the res judicata ruling as to the publication of 13 private information claims conflicts with the Court’s prior order in a different case 14 filed by Plaintiffs. ECF No. 30 at 1. Specifically, they argue that the Court 15 dismissed their complaint from case number 17-CV-086 because the complaint 16 “could not be amended to a state cause,” but now dismiss their complaint from this 17 case because the publication of private information claims are barred by res judicata. 18 Id. at 2. 19 Plaintiffs misunderstand the Court’s prior order. In the previous case, 20 Plaintiffs argued that Defendants violated the Washington Consumer Protection Act 21 (“WCPA”) by publishing Plaintiffs’ personally identifiable financial information. ORDER DENYING MOTION FOR RECONSIDERATION ~ 4 1 Rosco v. Transunion, LLC, No. 17-CV-086-RMP, 2017 WL 2945730, at *2 (E.D. 2 Wash. July 10, 2017). The Court dismissed Plaintiffs’ complaint because they failed 3 to allege how Defendants committed an unfair or deceptive act or practice, as 4 required to state a WCPA claim. Id. Further, the Court found that leave to amend 5 the complaint would be futile because the complaint could not be saved by an 6 amendment. Id. at *3. Therefore, the Court dismissed Plaintiffs’ claims against 7 Defendants. Id. 8 In this case, the Court dismissed Plaintiffs’ publication of private information 9 claims against Defendants as barred by res judicata created by the 2017 order. ECF 10 No. 28 at 11–12. As the Court found in its order, res judicata bars claims that have 11 been brought or could have been brought in previous cases. Id. at 11. Even though 12 Plaintiffs did not bring publication of private information claims in their previous 13 case, their claims under the WCPA were based on Defendants’ alleged publication 14 of personally identifiable financial information. Rosco, 2017 WL 2945730, at *2. 15 Because the claims were based on the same underlying conduct, the claims were 16 similar, and the new claims were barred by res judicata. ECF No. 28 at 12. 17 The Court does not find grounds to reconsider its ruling on the publication of 18 private information claims. 19 Plaintiffs’ Claims Regarding a Settlement with Experian 20 Plaintiffs argue that there is a settlement agreement with Experian that 21 Experian violated for unjust enrichment. ECF No. 30 at 2. In its response, Experian ORDER DENYING MOTION FOR RECONSIDERATION ~ 5 1 states that Plaintiffs are referring to an Indiana small-claims court settlement 2 agreement with Plaintiffs from 2014. ECF No. 32 at 5. 3 The Court dismissed Plaintiffs’ claims against Experian for unjust enrichment 4 because Plaintiffs’ complaint did not allege specific facts giving Experian fair notice 5 of the claims against it. ECF No. 28 at 15. Without fair notice to Defendants and 6 the Court, Plaintiffs’ complaint cannot state a claim for which relief may be granted. 7 Fed. R. Civ. P. 8(a); 12(b)(6). If the party who has the responsibility to make 8 specific allegations of claims for relief, here the Plaintiffs, does not meet the 9 requirements of Rules 8 and 12(b)(6), the Court must dismiss the complaint. See 10 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plaintiffs’ complaint in this 11 case was so ambiguously worded that it was unclear whether a settlement even 12 existed between the parties in the first place. See ECF No. 1-1 at 21. Now, 13 Experian has submitted some evidence that a settlement exists between the parties, 14 but that evidence was not previously part of the record and Plaintiffs did not 15 sufficiently allege the existence of this settlement agreement to satisfy the standards 16 of notice pleading. See ECF No. 33-1 at 5.1 The Court’s previous conclusion that 17 there was not a settlement agreement between the parties was not the Court’s error. 18 It was lack of specific allegations made by Plaintiffs. 19 20 1 21 The Court takes judicial notice of the small claims court docket because it is not subject to reasonable dispute. Fed. R. Evid. 201. ORDER DENYING MOTION FOR RECONSIDERATION ~ 6 1 Clear error is committed when the Court has a definite and firm conviction 2 that a mistake has been committed. McMillan v. United States, 112 F.3d 1040, 1044 3 (9th Cir. 1997). Despite the Court’s ruling as to whether a settlement agreement 4 existed between the parties, the Court finds that it did not commit clear error when it 5 dismissed Plaintiffs’ claim against Experian because Plaintiffs failed to allege with 6 necessary particularity the existence of the settlement agreement at that point in the 7 proceedings. 8 9 “Unjust enrichment is the method of recovery for the value of the benefit retained absent any contractual relationship because notions of fairness and justice 10 require it.” Young v. Young, 191 P.3d 1258, 1262 (Wash. 2008). Essentially, unjust 11 enrichment is the remedy for a party who performs services for another despite the 12 absence of a contract. Id. Here, the existence of a settlement agreement between the 13 parties show that there is a contractual agreement, and, therefore, unjust enrichment 14 does not apply. 15 Even if unjust enrichment was an appropriate claim to bring in this case, 16 Plaintiffs’ complaint failed to allege the elements of unjust enrichment. A plaintiff’s 17 claim will be dismissed if it fails to state a claim upon which relief can be granted. 18 Fed. R. Civ. P. 12(b)(6). The plaintiff must plead “enough facts to state a claim to 19 relief that is plausible on its face.” Bell Atl. Corp., 550 U.S. at 570. To succeed on 20 an unjust enrichment claim, a plaintiff must prove (1) the defendant received a 21 benefit; (2) the received benefit was at the expense of the plaintiff; and (3) ORDER DENYING MOTION FOR RECONSIDERATION ~ 7 1 circumstances make it unjust to retain the benefit without payment. Young, 191 P.3d 2 at 1262. Plaintiffs claimed that the settlement with Experian was unjust enrichment 3 because of an alleged confidentiality clause in the settlement. ECF No. 1-1 at 22. 4 This claim does not allege that Plaintiffs conferred a benefit to Experian or 5 performed services for Experian at Plaintiffs’ expense. Young, 191 P.3d at 1262. 6 Therefore, Plaintiffs failed to properly allege an unjust enrichment claim and 7 dismissal is still appropriate. 8 CONCLUSION 9 Plaintiffs failed to show newly discovered evidence, clear error, or an 10 intervening change in controlling law. 389 Orange St. Partners, 179 F.3d at 665. 11 Because Plaintiffs are not successful on their motion for reconsideration, the Court 12 declines to issue sanctions against Experian. ECF No. 30 at 3. 13 14 15 16 17 18 Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Reconsideration, ECF No. 30, is DENIED. IT IS SO ORDERED. The District Court Clerk is directed to enter this Order and provide copies to Plaintiffs and counsel. DATED February 12, 2019. s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 19 20 21 ORDER DENYING MOTION FOR RECONSIDERATION ~ 8
]]>
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.
