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McAdory v. M.N.S & Associates

United States District Court, D. Oregon

March 11, 2018

M.N.S. & ASSOCIATES, and DNF ASSOCIATES, LLC, foreign limited liability companies, Defendants.



          OPINION & ORDER

          Marco A. Hernandez, United States District Judge

         Plaintiff Jillian McAdory brings this Fair Debt Collection Practices Act (FDCPA) action against Defendants M.N.S. & Associates and DNF Associates, LLC, contending that M.N.S's conduct in attempting to collect a consumer debt from Plaintiff violated various provisions of the FDCPA, 15 U.S.C. §§ 1692-1692p, and that DNF is vicariously liable for M.N.S's actions. In a November 3, 2017 Opinion & Order, I granted DNF's motion to dismiss after concluding that as a matter of law, DNF was not be a "debt collector" as defined by the FDCPA. McAdory v. M.N.S. & Assocs., No. 3:17-cv-00777-HZ, 2017 WL 5071263 (D. Or. Nov. 3, 2017), ECF 27.

         Plaintiff moves for leave to amend, contending that facts now asserted in her Proposed Second Amended Complaint (PSAC) establish that DNF is a debt collector. I construe the motion as a motion for reconsideration and I deny it.

         I. Nature of the Motion & Standards

         DNF's motion to dismiss contended that DNF could not be a debt collector as defined by statute and alternatively, even if it could, Plaintiff failed to plausibly allege that DNF was a debt collector. See Id. at *1, *2 (noting the two separate arguments made by DNF). I made clear that I agreed with Defendant on its first argument, meaning that the issue was not the plausibility of the claim based on the facts alleged against DNF but was the viability of the claim as a matter of law. Id. at *1, *4. I expressly declined to reach DNF's alternative argument based on the sufficiency of the facts alleged. Id.

         In granting DNF's motion to dismiss, I neglected to expressly state that the claim against DNF was dismissed with prejudice. However, I also did not give Plaintiff leave to amend. The Opinion's discussion of the issue presented, the analysis upon which the conclusion was based, and my express statement that I was not considering DNF's alternative argument directed to the adequacy of the factual allegations because I agreed with DNF that as a matter of law a debt purchaser is not a debt collector under the FDCPA's "principal purpose" definition of debt collector, should have made clear to the parties that dismissal of the claim with prejudice was intended. Moreover, "a dismissal for failure to state a claim under Rule 12(b)(6) is presumed . . . to be rendered with prejudice." McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009). Given that the dismissal of DNF was with prejudice, Plaintiff's current motion is more appropriately considered a motion for reconsideration rather than a motion for leave to amend.

         Reconsideration is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.2000). Federal Rule of Civil Procedure 54(b) allows a district court to revise at any time "any order or other decision, however designated, " that does not fully resolve all the claims for all of the parties. Fed.R.Civ.P. 54(b)[1]; see also Lyden v. Nike Inc., No. 3:13-cv-00662-HZ, 2014 WL 4631206, at *1-2 (D. Or. Sept. 15, 2014) (setting forth standards for reconsideration under Rule 54(b)).

         A motion for reconsideration can be granted if the court (1) is presented with new evidence, (2) committed clear error or the first decision was manifestly unjust, or (3) is aware of an intervening change in law. Sch. Dist. No. 1J v. ACandS, Inc. 5 F.3d 1255, 1263 (9th Cir. 1993); Transp. Credit Serv. Ass'n v. Systran Fin. Servs. Corp., No. CIV. 03-1342-MO, 2004 WL 1920799, at *1 (D. Or. Aug. 26, 2004); see also Lyden, 2014 WL 4631206, at *1 (applying a similar four-factor analysis to a presumptive Rule 54(b) motion for reconsideration, and collecting cases). Motions for reconsideration are generally disfavored, and may not be used to present new arguments or evidence that could have been raised earlier. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir.1991) (trial court did not abuse its discretion in denying motion for reconsideration when moving party presented no arguments which the court had not already considered); see also Sam v. Deutsche Bank Nat. Trust Co., No. 03:13-cv-01521-MO, 2013 WL 6817888, at *2 (D. Or. Dec. 23, 2013) (a party asking for reconsideration must show a "legitimate basis for reconsideration, meaning something other than re-raising arguments previously made or asserting new legal theories or new facts which could have been presented before the initial hearing").

         II. Discussion

         Plaintiff's PSAC presents facts not asserted in the First Amended Complaint. A comparison of the two pleadings reveals that the new facts are contained in Paragraphs 7 and 8 of the PSAC. In Paragraph 7, Plaintiff alleges that if the third parties hired by DNF to collect the debts owned by DNF are unsuccessful in their collection efforts, DNF files collection lawsuits against the debtors. PSAC ¶ 7, Pl.'s Mot. to Amend, Ex. A, ECF 29-1. Plaintiff alleges that DNF has filed at least forty-seven such lawsuits against Oregon consumers in Oregon state courts. Id. In Paragraph 8, Plaintiff alleges that DNF is licensed as a debt collection agency in multiple states. An attachment to the PSAC shows such licenses in seven states. PSAC, Ex. 2, ECF 29-3.

         Plaintiff provides no basis for why the facts in Paragraph 8 of the PSAC were omitted from her Complaint and First Amended Complaint. Plaintiff fails to explain how this is "new evidence" that was previously unavailable. Thus, it is not a proper basis for reconsideration.

         Even if I consider it, however, it does not detract from the analysis in my November 3, 2017 Opinion. The heart of my discussion was that debt purchasing companies who rely on third parties to collect on the purchased debts are not debt collectors under the "principal purpose" prong of the definition of debt collector as provided in 15 U.S.C. § 1692a(6). McAdory, 2017 WL 5071263, at *3. This is because the statutory definition requiring that debt collection be the entity's principal purpose means that the debt collection be the most important or most influential purpose that the entity has. Id. As I explained, the "fact that a business benefits from ...

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