United States District Court, E.D. Wisconsin
NESTI THOMOLLARI, individually and on behalf of all others similarly situated, Plaintiffs,
CMRE FINANCIAL SERVICES, INC., Defendant.
DECISION AND ORDER ON PLAINTIFFS' MOTION FOR
JOSEPH UNITED STATES MAGISTRATE JUDGE
Thomollari filed a class action complaint against CMRE
Financial Services, Inc., alleging violations of the Fair
Debt Collection Practices Act (“FDCPA”) based on
actions taken by CMRE in the course of collecting a debt
allegedly owed to Great Lakes Anesthesia & Pain Spec.
(Compl., Docket # 1.) CMRE moved to dismiss Thomollari's
complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds
that he failed to state a claim upon which relief can be
granted and I granted CMRE's motion. Presently before me
is Thomollari's motion for reconsideration pursuant to
Fed.R.Civ.P. 59(e). For the reasons I explain below,
Thomollari's motion is denied.
59(e) allows a party to move the court for reconsideration of
a judgment within 28 days following the entry of the
judgment. A motion for reconsideration serves a very limited
purpose in federal civil litigation; it should be used only
“to correct manifest errors of law or fact or to
present newly discovered evidence.” Rothwell Cotton
Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.
1987) (quoting Keene Corp. v. Int'l Fidelity Ins.
Co., 561 F.Supp. 656 (N.D. Ill. 1982),
aff'd 736 F.2d 388 (7th Cir. 1984)). “A
‘manifest error' is not demonstrated by the
disappointment of the losing party. It is the
‘wholesale disregard, misapplication, or failure to
recognize controlling precedent.'” Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
2000) (quoting Sedrak v. Callahan, 987 F.Supp. 1063,
1069 (N.D. Ill. 1997)). Apart from manifest errors of law,
“reconsideration is not for rehashing previously
rejected arguments.” Caisse Nationale de Credit
Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1270
(7th Cir. 1996). Whether to grant a motion for
reconsideration “is left to the discretion of the
district court.” Id.
does not present newly discovered evidence; rather, he argues
that the decision and order dismissing his complaint contains
manifest errors of law. Specifically, he argues that that the
order (1) misapplied Seventh Circuit precedent applicable in
FDCPA actions; (2) misconstrued Thomollari's arguments
and drew inferences in favor of the moving party when other
reasonable inferences in plaintiff's favor existed; and
(3) dismissed the complaint without giving Thomollari leave
first argument is simply citation to Seventh Circuit
authority cautioning courts against dismissing FDCPA actions
at the Rule 12(b)(6) stage. In the order, I noted that the
Seventh Circuit has cautioned district courts to “tread
carefully” before holding that a dunning letter is not
confusing as a matter of law when ruling on a Rule 12(b)(6)
motion. (Docket # 17 at 8.) I held, however, that
Thomollari's complaint presented a case that was so clear
on its face that not even a significant fraction of the
population would be misled by it. See Zemeckis v. Glob.
Credit & Collection Corp., 679 F.3d 632, 636 (7th
Cir. 2012). Thomollari's disagreement with my holding
does not constitute a manifest error of law.
Thomollari argues that the order interpreted disputed facts
and drew reasonable inferences against the plaintiff. In so
arguing, Thomollari raises for the first time on
reconsideration the argument that the unsophisticated
consumer could interpret the letter's statement that the
consumer's written request “should refer to the . .
. statement date” as effectively shortening the 30-day
validation period because the unsophisticated consumer would
understand the 30-day validation period as beginning with the
statement date rather than the date the consumer receives the
letter. (Docket # 22 at 9.) However, a motion for
reconsideration is an improper vehicle to introduce new legal
theories. See Bally Export Corp. v. Balicar, Ltd.,
804 F.2d 398, 404 (7th Cir. 1986).
also cites to several cases from the Northern District of
Illinois in support of his position. See Bowse v.
Portfolio Recovery Assocs., LLC, 218 F.Supp.3d 745 (N.D.
Ill. Nov. 2, 2016); Paz v. Portfolio Recovery Assocs.,
LLC, 2016 U.S. Dist. LEXIS 160779 (N.D. Ill. Nov. 21,
2016); Emerson v. Fid. Capital Holdings, Inc., 2015
U.S. Dist. LEXIS 107091 (N.D. Ill. Aug. 14, 2015). Setting
aside the fact that these cases were available to Thomollari
at the time he filed his brief in opposition to the
defendant's motion, the cases are inapposite.
Bowse, Paz, and Emerson do not
address claims of overshadowing; rather, they address what
constitutes an effective “dispute” of a debt.
None of these cases show a manifest error of law. Thomollari
also takes issue with my interpretation of DeKoven v.
Plaza Assocs., 599 F.3d 578, 582 (7th Cir. 2010) and
Zemeckis. But again, Thomollari's disagreement
with the order does not rise to the level of a manifest error
Thomollari argues that judgment should not have been entered
in this case. Rather, he should have been given the
opportunity to amend his complaint. He cites Runnion ex
rel. Runnion v. Girl Scouts of Greater Chicago & Nw.
Indiana, 786 F.3d 510, 519 (7th Cir. 2015) in support,
where the Seventh Circuit said that it has repeatedly stated
that a “plaintiff whose original complaint has been
dismissed under Rule 12(b)(6) should be given at least one
opportunity to try to amend her complaint before the entire
action is dismissed” and that when “a district
court denies a plaintiff such an opportunity, its decision
will be reviewed rigorously on appeal.” The
Runnion court also stated, however, though rare,
there are cases where “it is clear that the defect
cannot be corrected so that amendment is futile” and in
such cases “it might do no harm to deny leave to amend
and to enter an immediate final judgment.” Id.
one of those rare cases where amendment would be futile. It
is unclear what allowing Thomollari to re-plead would
accomplish. The dunning letter will not change. Nor will
Thomollari's assertion that the dunning letter violated
15 U.S.C. §§ 1692g(a), 1692e and 1692e(10) of the
FDCPA. Thomollari was not required to plead his legal theory,
i.e., that the language in question overshadowed the
validation notice and is confusing to the unsophisticated
consumer. See King v. Kramer, 763 F.3d 635, 642 (7th
Cir. 2014) (“[A] plaintiff need not plead legal
theories in her complaint.”).
argues that he should be allowed to amend his complaint in
order to assert a new overshadowing argument-that the dunning
letter's statement that the consumer's written
request “should refer to the . . . statement
date” effectively shortens the 30-day validation period
because the unsophisticated consumer would understand the
30-day validation period as beginning with the statement date
rather than the date the consumer receives the letter.
(Docket # 24 at 10.) But this is simply a new legal theory,
not new facts or a new cause of action. Again, it is unclear
how the complaint would change.
Thomollari has failed to meet his burden of showing a
manifest error of law or fact, his motion for reconsideration
THEREFORE, IT IS HEREBY ORDERED that the plaintiffs'
motion for ...