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Spira v. Ashwood Financial

May 24, 2005

MIRIAM SPIRA, PLAINTIFF,
v.
ASHWOOD FINANCIAL, INC., DEFENDANT.



The opinion of the court was delivered by: Glasser, United States District Judge

MEMORANDUM AND ORDER

INTRODUCTION

Plaintiff Miriam Spira ("plaintiff" or "Spira") filed a motion pursuant to Fed. R. Civ. P. 60(b)(6) for reconsideration of the Court's Memorandum and Order dated February 28, 2005, familiarity with which is presumed, granting summary judgment to defendant Ashwood Financial, Inc. ("defendant" or "Ashwood") on plaintiff's claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. See Spira v. Ashwood Financial, Inc., 358 F. Supp. 2d 350 (E.D.N.Y. 2005). In support of her motion for reconsideration, plaintiff makes the following arguments: (1) the Court erred when it failed to grant her further discovery on the meaning of the phrase "[i]t is our intent to pursue collection of this debt through every means available to us" set forth in the Follow-up Letter, Pl. Mem. at 2-3; and (2) the Court misapplied the law when it held that this language was not deceptive or misleading under the FDCPA, id. at 3-4. In opposition, defendant asserts that Spira has not shown the requisite "extraordinary circumstances" necessary to justify reconsideration under Fed. R. Civ. P. 60(b)(6). For the reasons set forth below, plaintiff's motion is denied.

DISCUSSION

A. Standard Governing Plaintiff's Motion for Reconsideration

Plaintiff has filed this motion pursuant to Fed. R. Civ. P. 60(b)(6). "Rule 60(b) of the Federal Rules of Civil Procedure prescribes procedures by which a party may seek relief from a final judgment."*fn1 House v. Sec. of Health and Human Servs., 688 F.2d 7, 9 (2d Cir. 1982). Subdivision six of that rule states that the Court may grant relief from a final judgment for any "reason justifying relief from the operation of th[at] judgment." Fed. R. Civ. P. 60(b)(6). "[R]elief under 60(b)(6) may be granted only when 'exceptional' or 'extraordinary' circumstances exist" or when necessary to cure "an extreme and undue hardship." House, 688 F.2d at 9 (citations omitted); Pichardo v. Ashcroft, 374 F.3d 46, 56 (2d Cir. 2004) (same) (quotation and citation omitted); see also Rinieri v. News Syndicate Co., 385 F.2d 818, 820 (2d Cir. 1967) ("Rule 60(b)(6) is not a carte blanche to cast adrift from fixed moorings and time limitations guided only by necessarily variant consciences of different judges ... and may be relied upon only in exceptional circumstances"). Such circumstances are infrequent, and therefore "courts usually deny reconsideration where a party had previous opportunities to act upon a motion or somehow prevent an unfavorable judgment."*fn2 Williams v. New York City Dep't of Corrections, 219 F.R.D. 78, 86 (S.D.N.Y. 2003). A Rule 60(b)(6) motion is not to be used as a proxy for an appeal. Matarese v. LeFevre, 801 F.2d 98, 107 (2d Cir. 1986), cert. denied, 480 U.S. 908 (1987).

The Court must therefore determine whether plaintiff has presented "extraordinary circumstances" justifying relief from the Memorandum and Order granting summary judgment to defendant. As set forth below, the Court finds that she has not.

B. Whether "Exceptional Circumstances" Exist Warranting Relief Pursuant to Fed. R. Civ. P. 60(b)(6)

First, plaintiff asserts that she was prejudiced by the Court's decision granting defendant's cross-motion for summary judgment without permitting her to take more discovery, including a deposition of a corporate representative of defendant. In support of her argument, plaintiff points to her counsel's Rule 56(f) affidavit in which he indicated that during discovery, he was unable to obtain evidence to determine whether the language "every means available" in the Follow-up Letter included defendant's willingness to commence legal action over plaintiff's $29.08 debt. (Pl.'s Counsel's Aff. ¶ 20, docket entry number ("DE") 21).

Plaintiff's argument is unpersuasive because as indicated in the Court's Memorandum and Order, Magistrate Judge Mann, who supervised discovery, directed defendant, on pain of sanctions, to "respond to pending discovery demands that pertain to issues involved in the parties' dispositive motions." Spira, 358 F. Supp. at 155 (citation and internal quotation omitted). Specifically, the record reveals that two weeks prior to submitting his Rule 56(f) affidavit, dated January 18, 2005, plaintiff's counsel wrote a letter, dated December 30, 2004, to Magistrate Judge Mann, asking her to compel defendant's responses to written discovery "so that plaintiff could more intelligently respond to defendant's motion rather than having to submit a Rule 56 affidavit." DE 11 at p. 2 (emphasis added). The Court granted plaintiff's request in part and held as follows:

Plaintiff's letter references the parties' cross-motions for summary judgment. Those motions are pending before Judge Glasser and this Court has not seen them. However, assuming the accuracy of plaintiff's summary of the issues implicated in those motions, it is clear that only a handful of plaintiff's discovery demands relate to those issues. Therefore, while plaintiff is correct that dispositive motions do not automatically stay all discovery, this Court, in its discretion, will stay all discovery other than those pertaining to the issues involved in the dispositive motions. Accordingly, defendant shall, on pain of sanctions, provide substantive responses to all such pending discovery demands (i.e., requests for admissions, interrogatories, and document demands) no later than January 7, 2005.

DE 12, Order dated January 3, 2005 at 1 (emphasis added).

By letter dated January 10, 2005, plaintiff's counsel applied to have sanctions imposed on defendant's counsel for his alleged failure to comply with the Court's January 3, 2005 order. DE 13. In denying this request, Magistrate Judge Mann ruled that the Court was satisfied that defendant served its responses to plaintiff's discovery requests in a timely fashion and, "with one exception," such responses were complete. DE 17, Order dated January 11, 2005 at 1-2. With respect to that one deficient response, defendant was ordered to provide the requested information to plaintiff's counsel no later than January 21, 2005, before the time when the parties' summary judgment motions were due to be filed. Id. at 2. Plaintiff's counsel has never alleged that he did not receive the discovery response on January 21, 2005, and there is no docket entry to that effect.

It is therefore clear that plaintiff's counsel's own statements reveal that he received all of the discovery which he believed he needed in order to respond to defendant's cross-motion for summary judgment. Plaintiff's submission of a Rule 56(f) affidavit to oppose defendant's cross-motion for summary judgment was therefore a transparent effort to create a material issue of fact on his client's need for further discovery through assertions which contradict statements he made to the Court just two weeks earlier. That kind of contradiction is not tolerated by a party in the summary judgment context, and will not be tolerated by a party's counsel. Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572-73 (2d Cir. 1991) ("The rule is well-settled in this circuit that a party may not, in ...


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