Ingersoll v. Carter Jones Collection Service, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MEDFORD DIVISION

JERALD INGERSOLL, Civ. No.1:21-cv-01060-AA

Plaintiff, OPINION & ORDER

v.

BRANDSNESS, BRANDSNESS

& RUDD, P.C.; CARTER-JONES

COLLECTION SERVICE, INC.,

Defendants.

_______________________________________

AIKEN, District Judge.

This case comes before the Court on Motion to Alter or Amend Judgment filed

by Plaintiff. ECF No. 43. The Court concludes that this motion is appropriate for

resolution without oral argument. For the reasons set forth below, the motion is

DENIED.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 59(e), a party may move “to alter or

amend a judgment” within 28 days of its entry. Fed. R. Civ. P. 59(e). “A district court

has considerable discretion when considering a motion to amend a judgment under

Rule 59(e).” Turner v. Burlington N. Santa Fe. R.R. Co., 338 F.3d 1058, 1063 (9th

Cir. 2003). A motion to alter or amend a judgment under Rule 59(e) is, however, 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) (internal quotation marks and citation omitted). A district

court may grant a Rule 59(e) motion is it “is presented with newly discovered

evidence, committed clear error, or if there is an intervening change in the controlling

law.” McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (internal

quotation marks and citation omitted, alteration normalized). This standard

presents a “high hurdle” for a litigant seeking reconsideration under Rule 59(e).

Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001).

In addition, “Rule 59(e) permits a court to alter or amend a judgment but it

may not be used to relitigate old matters, or to raise arguments or present evidence

that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v.

Baker, 554 U.S. 471, 485 n.5 (2008) (internal quotation marks and citation omitted).

DISCUSSION

In March 2023, this Court granted Defendant’s motion to dismiss and entered

a judgment of dismissal. ECF Nos. 40, 41. As relevant to the present motion, the

Court found that Plaintiff’s claims were untimely because they were not filed within

one year of the filing of Defendant’s state court complaint, which initiated the running

of the limitations period. Opinion & Order at 6-7 (citing Naas v. Stolman, 130 F.3d

892, 893 (9th Cir. 1997)), ECF No. 40.

In the present motion, Plaintiff argues that the Court committed clear error

when it dismissed Plaintiff’s claim as untimely without considering the effect of

equitable tolling on the limitations period. Defendant responds, and Plaintiff

concedes, that Plaintiff never raised the issue of equitable tolling in response to

Defendant’s motion to dismiss. A motion under Rule 59(e) is not a vehicle for raising

arguments that could have been raised prior to the entry of judgment. Exxon

Shipping, 554 U.S. 485 n.5; see also Kona Enters., 229 F.3d at 890 (“A Rule 59(e)

motion may not be used to raise arguments or present evidence for the first time when

they could reasonably have been raised earlier in the litigation.” (emphasis in

original)). Plaintiff’s argument concerning equitable tolling is foreclosed by his

failure to raise the issue prior to the entry of judgment and the Court declines to

grant Plaintiff’s motion on that basis.

Plaintiff has also filed a Notice of Supplemental Authority, ECF No. 46, in

which he argues that the Ninth Circuit’s decision in Brown v. Transworld Sys. Inc.,

73 F.4th 1030 (9th Cir. 2023) constitutes an intervening change in controlling law for

purposes of Plaintiff’s Rule 59(e) motion. As a preliminary matter, this “Notice of

Supplemental Authority” raises an entirely new argument, distinct from the

arguments raised in the original motion, and is, in effect, a successive motion for

reconsideration. A motion to amend judgment under Rule 59(e) must be filed within

twenty-eight days of the entry of judgment. Fed. R. Civ. P. 59(e). Plaintiff’s Notice

was filed more than three months after the entry of judgment. As such, it is untimely.

Turning to the substance of the motion, Plaintiff argues that the Ninth

Circuit’s decision in Brown established that the limitations period runs from the

service of the underlying state court lawsuit, as well as the filing of the lawsuit

because each are independent violations of the FDCPA. If Plaintiff’s claims are

reckoned to have accrued on the service of the state court lawsuit, rather than the

filing of the lawsuit, then his claims would not be time barred.

As noted, the Court relied on Naas, which held that that an FDCPA claim

accrues on the filing of a complaint, rather than on the date of service of the

complaint. Naas, 130 F.3d at 893.

In Brown, the Ninth Circuit considered a situation in which the plaintiff was

served with summonses and complaints in February 2019 and the complaints were

filed in April 2019. Brown, 73 F.4th at 1036. The plaintiff brought an action under

the FDCPA and the district court dismissed as untimely because more than one year

had elapsed between the service of the underlying complaints and the filing of the

FDCPA action. Id. at 1037. The Ninth Circuit reversed, holding that the filing of the

underlying complaints was an independent violation of the FDCPA and that the

federal claim was timely for the claims related to the complaints. Id. at 1046.

In Brown, the Ninth Circuit derived the following test based on the holding of

Naas: “When the alleged FDCPA violation is the bringing of a debt collection lawsuit,

we determine which actions constitute independent FDCPA violations by considering

(1) the debt collector’s last opportunity to comply with the statute and (2) whether

the date of the violation is easily ascertainable.” Brown, 73 F.3d at 1042.

Additionally “to plausibly allege that a litigation act is a violation of the FDCPA, the

debtor must aver sufficient facts to show that the debt collector’s act is a new violation

of the FDCPA,” because “[t]here is a difference between litigating a case and

committing affirmative FDCPA violations during that litigation.” Id.

However, the Ninth Circuit held that, to constitute a new FDCPA violation, a

mid-litigation act by the defendant must do “more than simply reaffirm the

legitimacy of the state suit” and must constitute “a last opportunity to comply with

the FDCPA.” Brown, 73 F.4th at 1044 (quotation marks and citation omitted,

alterations normalized, alternations normalized). In holding that both service and

filing may constitute independent violations of the FDCPA, the Ninth Circuit was

careful to apply that holding to a situation where service occurs before the filing of

the underlying lawsuit. See Id. at 1044-46 (contrasting with Johnson v. Riddle 305

F.3d 1107 (10th Cir. 2002)) (“[W]e hold that when service occurs before filing, filing

constitutes an independent violation of the FDCPA . . . Filing is not merely ‘doubling

down’ on the initial act of service; it requires an affirmative step forward.”).

Here, the situation is the reverse of Brown—service occurred after the filing of

the lawsuit. The Court concludes that, consistent with Haas and Brown, service is

an act taken to reaffirm the legitimacy of the already-filed suit. It does not constitute

a new violation of the FDCPA and so the Ninth Circuit’s decision in Brown does not

alter the Court’s decision. Plaintiff’s motion is therefore DENIED.

CONCLUSION

For the reasons set forth above, Defendants’ Motion to Alter or Amend

Judgment, ECF No. 43, is DENIED.

It is so ORDERED and DATED this 21st day of December 2023.

/s/Ann Aiken

ANN AIKEN

United States District Judge