United States District Court, E.D. Wisconsin
DECISION AND ORDER ON MOTION FOR
JOSEPH UNITED STATES MAGISTRATE JUDGE.
Mollberg filed this action against Advanced Call Center
Technologies Inc. (“ACCT”) alleging violations of
the Fair Debt Collection Practices Act (“FDCPA”)
and the Wisconsin Consumer Act (“WCA”) based on a
letter sent by ACCT in the course of collecting a debt owed
to Synchrony Bank. ACCT moved to dismiss Mollberg's
complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds
that she failed to state a claim upon which relief can be
granted, and I granted ACCT's motion. (Docket # 16.)
Presently before me is Mollberg's motion for
reconsideration pursuant to Fed.R.Civ.P. 59(e). (Docket #
18.) For the reasons I explain below, Mollberg's motion
will be 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, she
argues that the decision and order dismissing her claims
under 15 U.S.C. § 1692e contains manifest errors of law.
Specifically, she argues that that the order (1) misapplied
Seventh Circuit precedent, and (2) dismissed with prejudice
rather than giving Mollberg an opportunity to amend her
states that it was a manifest error of the law for the court
not to conduct “a Ruth analysis” by articulating
and analyzing the three categories of dunning letters laid
out in Ruth v. Triumph P'Ships, 577 F.3d 790,
800 (7th Cir. 2016). (Docket # 21 at 1.) Mollberg argues that
this court “has reconsidered an order in another FDCPA
action for this exact reason.” (Id. (citing
Spuhler v. State Collection Servs., No. 16-cv-1149,
2018 U.S. Dist. LEXIS 128536, at *18 (E.D. Wis. Aug. 1,
2018)).) Spuhler, however, is inapposite. In Spuhler,
reconsideration was granted because in denying in part the
defendant's summary judgment motion, I erroneously found
that there was a triable issue of fact as to whether the
collection letter was confusing or unclear on its face,
despite the plaintiffs' failure to produce extrinsic
evidence. This contravenes Ruth. See Ruth, 577 F.3d
at 800 (“The second category of cases involves
statements that are not plainly misleading or deceptive but
might possibly mislead or deceive the unsophisticated
consumer. In these cases, we have held that plaintiffs may
prevail only by producing extrinsic evidence, such as
consumer surveys, to prove that unsophisticated consumers do
in fact find the challenged statements misleading or
the court's result is consistent with Ruth, which states
that “[i]n the first category are cases involving
statements that plainly, on their face, are not misleading or
deceptive. In these cases, we do not look to extrinsic
evidence to determine whether consumers were confused.
Instead, we grant dismissal or summary judgment in favor of
the defendant based on our own determination that the
statement complied with the law.” Id. The
decision I issued in this case did just that: granted
dismissal based on my determination that the letter plainly,
on its face, would not mislead an unsophisticated consumer.
Mollberg is not entitled to reconsideration on this ground.
also argues that the fact that the dunning letter was subject
to multiple interpretations makes dismissal inappropriate at
the 12(b)(6) stage. (Docket # 18 ¶ 11-13, # 2-4.)
Mollberg's argument overstates Seventh Circuit precedent,
which does not hold that any language that could possibly be
interpreted in multiple ways must survive a motion to
dismiss. This is true only where the language is susceptible
to an interpretation that could plausibly confuse the
unsophisticated consumer. Boucher v. Fin. Sys. Of Green
Bay, 880 F.3d 362, 366-67 (7th Cir. 2018). I found that
the interpretation offered by Mollberg-that a consumer would
interpret “now due” as “past due”-was
“bizarre” and “idiosyncratic” and
would not confuse an unsophisticated consumer. Mollberg is
not entitled to produce extrinsic evidence showing that such
language would confuse an unsophisticated consumer when it is
manifestly clear that the language could not plausibly do so.
(Docket # 16 at 9.)
notes 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. McMillan v. Collection
Prof'ls., Inc., 455 F.3d 754, 759 (7th Cir. 2006)
(quoting Walker v. Nat'l Recovery, Inc., 200
F.3d 500, 501-03 (7th Cir. 1999)). However, the Seventh
Circuit allows dismissal where a letter is so clear on its
face that not even a significant fraction of the population
would be materially misled. See Zemeckis v. Glob. Credit
& Collection Corp., 679 F.3d 632, 636 (7th Cir.
2012). I found that such was the case here, and
Mollberg's disagreement does not constitute a manifest
error of law.
takes issue with my interpretation of other relevant Seventh
Circuit precedent. (Docket # 18 ¶¶ 15-16, # 21 at
4-8.) The decision clearly indicated how my interpretation of
such precedent differs from Mollberg's, and
Mollberg's disagreement with my interpretation does not
constitute a manifest error of law.
Mollberg argues that she should have been given the
opportunity to amend her complaint. (Docket # 18 ¶ 17, #
21 at 8.) The Seventh Circuit 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.” Runnion ex rel.
Runnion v. Girl Scouts of Greater Chicago & Nw.
Indiana, 786 F.3d 510, 519 (7th Cir. 2015). However, the
court has also stated that in rare cases “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. at 520.
one of those rare cases where amendment would be futile. It
is unclear what allowing Mollberg to re-plead would
accomplish. The dunning letter will not change. Nor will
Mollberg's assertion that the dunning letter violated the
FDCPA. Mollberg argues that she should be allowed to amend
her complaint in order to “more clearly allege that
collection agencies typically collect only the past due
portions of credit card accounts, that the unsophisticated
consumer would assume the ‘amount now due' is the
past due portion, and that the unsophisticated consumer would
not know if the debt collector or creditor had exercised a
right to accelerate the current installment payment.”
(Docket # 21 at 8.) Mollberg apparently attempts to cast her
amendments as pleading new facts that might change the
analysis, but in fact Mollberg is attempting to redefine the
“unsophisticated consumer” standard. Mollberg
wants the court to apply the standard of a consumer who is
sophisticated enough to know that debt collectors usually
collect only amounts that are past due to the creditor, and
who concerns herself with whether the debt collector or the
creditor has accelerated the current installment payment.
That is not the “unsophisticated consumer”
standard, and re-pleading in this manner would not change my
Mollberg has failed to meet her burden of showing a manifest
error of law or fact, her motion for reconsideration is
THEREFORE, IT IS HEREBY ORDERED that the plaintiff's
motion for ...