Makridis v. Experian Information Solutions Incorporated

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Savas Makridis, No. CV-22-00498-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 CACH LLC, 13 Defendant. [14] 15 In this action, Savas Makridis (“Plaintiff”) asserts various claims against CACH 16 LLC (“Defendant”), including, as relevant here, a claim in Count Seven for violating the 17 Federal Debt Collection Practices Act (“FDCPA”). (Doc. 1.) On August 16, 2023, the 18 Court issued an order resolving the parties’ cross-motions for summary judgment. (Doc. 19 59.) Among other things, the Court concluded that neither side was entitled to summary 20 judgment on Count Seven. (Id.) 21 Now pending before the Court is Defendant’s motion for reconsideration of the 22 summary judgment order to the extent it denied summary judgment on Count Seven. (Doc. 23 67.) For the following reasons, the motion is denied. 24 RELEVANT BACKGROUND 25 In March 2022, Plaintiff filed the complaint. (Doc. 1.) In Count Seven, Plaintiff 26 alleges that Defendant violated the FDCPA by “falsely reporting the character, amount, or 27 legal status of any debt.” (Id. ¶¶ 59-67.) Elsewhere, the complaint specifies that the false 28 reporting consisted of Defendant “reporting a false tradeline opened January 2016 with a 1 balance and past due amount of $5,970 on Plaintiff’s Experian and Equifax disclosure” and 2 that Plaintiff obtained credit reports from Experian and/or Equifax in November 2021, 3 January 2022, and February 2022 that contained this false information. (Id. ¶¶ 7-17.) The 4 complaint further alleges that Defendant’s “failure to delete the False Tradeline on 5 Plaintiff’s consumer credit file is humiliating, embarrassing, and stressful to the Plaintiff 6 as it creates a false impression to users of his credit report that he has an obligation when, 7 in fact, he does not.” (Id. ¶ 65.) 8 In June 2023, Defendant moved for summary judgment on Count Seven. (Doc. 50.) 9 Among other things, Defendant argued that Count Seven is time-barred because “[a]n 10 action under the FDCPA is subject to a one-year statute of limitations,” “the debt was first 11 reported in September 2018,” and thus “the one-year statute of limitations would have 12 begun in September 2018, at the latest.” (Id. at 5.) In response, Plaintiff argued that Count 13 Seven is not time-barred because the complaint “alleged that Defendant reported the debt 14 in November 2021 with an incorrect balance . . . and continued to report the inaccurate debt 15 in January and February 2022 . . . . Plaintiff’s Complaint was filed on March 29, 2022, 16 well within the 1-year statute of limitations period for the November 2021 inaccurate 17 reporting.” (Doc. 55 at 3.) Plaintiff also asserted that “[s]everal circuits have adhered to 18 the view that every violation of the FDCPA has its own statute of limitations” and cited 19 various authorities in support of that assertion, including the Sixth Circuit’s decision in 20 Bouye v Bruce, 61 F.4th 485 (6th Cir. 2023). (Id.) In reply, Defendant’s sole argument 21 was that although “some circuits have adopted the position that every violation under the 22 FDCPA has its own statute of limitations . . . the 9th Circuit has not adopted this rule.” 23 (Doc. 58 at 2.) 24 As it turns out, on July 14, 2023—four days before Defendant filed its reply brief— 25 the Ninth Circuit decided Brown v. Transworld Systems, Inc., 73 F.4th 1030 (9th Cir. 26 2023). There, the Ninth Circuit explained that, “[a]lthough we perhaps have not yet said 27 so explicitly, every alleged FDCPA violation triggers its own one-year statute of limitations 28 as provided in § 1692k(d).” Id. at 1040. The court also cited, with approval, the Sixth 1 Circuit’s holding on this point in Bouye. Id. 2 On August 16, 2023, the Court issued an order resolving the parties’ cross-motions 3 for summary judgment. (Doc. 59.) As for the statute-of-limitations issue, the Court 4 concluded as follows: [5] Under 15 U.S.C. § 1692k(d), “[a]n action to enforce any liability created by 6 this subchapter may be brought . . . within one year from the date on which the violation occurs.” The Supreme Court has interpreted this provision to 7 mean that “[t]he FDCPA limitations period begins to run on the date the 8 alleged FDCPA violation actually happened,” not when the plaintiff discovers the violation. Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019). Here, 9 it is undisputed that Defendant first reported Plaintiff’s debt in September 2018. Indeed, Plaintiff acknowledged during his deposition that Defendant’s [10] initial reporting occurred no later than 2018 and caused him to suffer negative 11 consequences in 2018 when obtaining an auto loan. Accordingly, the statuteof-limitations analysis turns on whether Plaintiff’s FDCPA claim is limited [12] to Defendant’s initial report of his debt in 2018 (in which case Plaintiff’s 13 claim is time-barred) or whether Defendant’s subsequent acts of reporting, including its reports to Experian and Equifax in November 2021, constituted [14] independent violations (in which case Plaintiff’s claim is not time-barred). [15] In a recent decision issued while the briefing process in this case was 16 unfolding, the Ninth Circuit addressed this issue and resolved it in Plaintiff’s favor. In Brown v. Transworld Systems, Inc., 73 F.4th 1030 (9th Cir. 2023), [17] the court explained that “[a]lthough we perhaps have not yet said so 18 explicitly, every alleged FDCPA violation triggers its own one-year statute of limitations as provided in § 1692k(d).” Id. at 1040. The court also cited, [19] with approval, decisions from the Sixth and Tenth Circuits adopting the same 20 rule. Id. Accordingly, because Defendant’s statute-of-limitations argument is premised on Defendant’s prediction that the Ninth Circuit would not adopt [21] the rule applied in those circuits—a prediction that has now proved 22 inaccurate—summary judgment is not warranted on this basis. [23] (Id. at 16, record citations omitted.) [24] On August 30, 2023, Plaintiff filed a motion for reconsideration of the summary [25] judgment order. (Doc. 60.) The motion did not discuss the statute-of-limitations analysis. [26] (Id.) In fact, Plaintiff’s only argument as to Count Seven was that the Court should have [27] granted summary judgment in his favor because the materials he submitted to Defendant [28] “were conclusive as to the validity of Plaintiff’s dispute” and thus “conclusively prove” 1 that Defendant’s debt-related reporting was inaccurate. (Id. at 3-4.) 2 On September 28, 2023, the Court issued an order denying Plaintiff’s 3 reconsideration motion. (Doc. 63.) 4 On November 21, 2023, Defendant filed the pending reconsideration motion. (Doc. 5 67.) 6 LEGAL STANDARD 7 “The Court will ordinarily deny a motion for reconsideration of an Order absent a 8 showing of manifest error or a showing of new facts or legal authority that could not have 9 been brought to its attention earlier with reasonable diligence.” LRCiv. 7.2(g)(1). 10 Reconsideration is an “extraordinary remedy” that is available only in “highly unusual 11 circumstances.” Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877 , 890 (9th Cir. 2000) 12 (internal quotation marks omitted). “Motions for reconsideration are disfavored . . . and 13 are not the place for parties to make new arguments not raised in their original briefs. Nor 14 is reconsideration to be used to ask the Court to rethink what it has already thought.” 15 Motorola, Inc. v. J.B. Rodgers Mechanical Contractors, 215 F.R.D. 581, 582 (D. Ariz. 16 2003). See also FTC v. Noland, 2022 WL 901386 , *3 (D. Ariz. 2022) (“Local Rule 7.2(g) 17 . . . [creates] essentially the same standard a district court outside the District of Arizona 18 . . . would apply when resolving a reconsideration motion under Rule 54(b).”) (citations 19 omitted); 2 Gensler, Federal Rules of Civil Procedure, Rules and Commentary, Rule 54, at 20 77-78 (2022) (“Rule 54(b) is not a mechanism to get a ‘do over’ to try different arguments 21 or present additional evidence when the first attempt failed. Thus, while the limits 22 governing reconsideration of final judgments under Rule 59(e) do not strictly apply, courts 23 frequently invoke them as common-sense guideposts when parties seek reconsideration of 24 an interlocutory ruling under Rule 54(b). In sum, trial courts will exercise their discretion 25 to reconsider interlocutory rulings only when there is a good reason to do so, including (but 26 not limited to) the existence of newly-discovered evidence that was not previously 27 available, an intervening change in the controlling law, or a clear error rendering the initial 28 decision manifestly unjust.”). 1 ANALYSIS 2 Defendant’s reconsideration request lacks merit. First, it is untimely. Under LRCiv 3 7.2(g)(2), “[a]bsent good cause, any motion for reconsideration shall be filed no later than 4 fourteen (14) days after the date of the filing of the Order that is the subject of the motion.” 5 Here, the summary judgment order was issued on August 16, 2023 yet Defendant did not 6 move for reconsideration until November 21, 2023. This more-than-three-month delay 7 was obviously outside the presumptive 14-day reconsideration window. Nor has 8 Defendant attempted to show (much less succeeded in showing) good cause for the delay. 9 Defendant’s theory appears to be that the arguments raised in Plaintiff’s earlier 10 reconsideration motion provide the basis for the current reconsideration request. (Doc. 67 11 at 3 [“Plaintiff argues for the first time, presenting new facts in its Motion for 12 Reconsideration that the original balance of the account was inaccurate . . . .”].) However, 13 Plaintiff did not seek reconsideration of the statute-of-limitations analysis in the summary 14 judgment order, so it is unclear how those purportedly new arguments could provide the 15 basis for reconsidering the summary judgment order. At any rate, Defendant did not file 16 its reconsideration motion within 14 days of when Plaintiff filed his reconsideration motion 17 or within 14 days of when the Court denied Plaintiff’s reconsideration motion. 18 Second, putting aside the issue of untimeliness, Defendant’s reconsideration request 19 fails on the merits. Although Defendant correctly notes that the alleged FDCPA violation 20 here (i.e., falsely reporting to Experian and Equifax that Plaintiff owed a debt) is 21 “distinguishable” from the alleged FDCPA violations at issue in Brown, it doesn’t follow 22 that “the holding in Brown should not be applied in this case.” (Doc. 67 at 4.) As discussed 23 in the summary judgment order, Brown explicitly adopted the rule followed in other 24 circuits, which is that each FDCPA violation triggers a new one-year statute of limitations. 25 Although Defendant predicted in its summary judgment papers that the Ninth Circuit 26 would decline to adopt that rule, Defendant’s prediction turned out to be inaccurate. Here, 27 the complaint (which, again, was filed in March 2022) alleges that Defendant violated the 28 FDCPA in November 2021, January 2022, and February 2022 by reporting false tradelines 1 || to Experian and Equifax. Those alleged violations each fall comfortably within the oneyear limitations period and are not, as Defendant contends, mere continuations of the || reporting that first occurred in September 2018. See, e.g., Demarais v. Gurstel Chargo, 4|| P.A., 869 F.3d 685, 694 (8th Cir. 2017) (‘If a debt collector violates the FDCPA, an 5 || individual may sue to enforce FDCPA liability within one year of that violation. It does 6 || not matter that the debt collector’s violation restates earlier assertions—if the plaintiff sues || within one year of the violation, it is not barred by § 1692k(d). Each alleged violation of 8 || the FDCPA is evaluated individually to determine whether any portion of the claim is not 9|| barred by the statute of limitations. As the Tenth Circuit points out, ‘Any other rule would 10 || immunize debt collectors from later wrongdoing.’”) (cleaned up); Brandon v. Financial 11 || Accounts Services Team, Inc., 701 F. Supp. 2d 990, 996 (E.D. Tenn. 2010) (“Defendant 12 || FAST sent four letters within the one-year limitations period. The letters, while involving 13 || the violation discovered outside of the limitations period, were separate communications which are alleged to have violated the FDCPA.”); Purnell v. Arrow Financial Services, LLC, 303 F. App’x 297 , 304 & n.5 (6th Cir. 2008) (noting that “each ‘communication’ of false credit information . . . presents a discrete claim for violation of the FDCPA such that only those collection activities taken outside the limitations period would be time-barred” 18 || and that “[w]e assume without deciding that the reporting of the debt to Equifax constitutes a ‘collection activity’’). 20 Accordingly, 21 IT IS ORDERED that Defendant’s reconsideration motion (Doc. 67) is denied. 22 Dated this 28th day of November, 2023. [24] 25 } CC —— Dominic W. Lanza 26 United States District Judge [28] -6-