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Ohlson v. Cadle Company

April 16, 2010

PAUL OHLSON, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY-SITUATED, PLAINTIFF,
v.
THE CADLE COMPANY, INC., ET AL. DEFENDANTS.



The opinion of the court was delivered by: Hurley, District Judge

ORDER

Presently before this Court is Defendants' motion for reconsideration of this Court's Memorandum & Order dated March 2, 2010 ("2010 Order"). For the reasons set forth below, the motion for reconsideration is granted and upon reconsideration the Court adheres to its earlier determination.

Background

The Court has issued a number of decisions in this matter, familiarity with which is presumed. It suffices to note that in its Memorandum & Order dated September 30, 2008 (the "2008 Order") the Court addressed (1) a motion for summary judgment by defendants Steven Vlock and Vlock & Associates (collectively "Vlock Defendants"); (2) a motion for partial summary judgment by Plaintiff Paul Ohlson ("Plaintiff"); and (3) a cross-motion for summary judgment by defendants The Cadle Company ("TCC")*fn1, Daniel C. Cadle ("Cadle"), Ray Diamond ("Diamond") and Bobby D. Associates ("BDA"). Because there was a great deal of disagreement between the parties as to what claims remained after the Court's 2008 Order, the Court issued its 2010 Order summarizing the claims which remain as against each defendant.It held as follows:

As a result of the Court's 2008 Order, there are no remaining causes of action against TCC.

Causes of action for violation of 15 U.S.C. §§ 1692e and/or 1692f premised upon the following assertions remain outstanding against Daniel Cadle, BDA, and Diamond:

(1) the April 2004 letter (a) sets forth post judgment remedies available to a creditor prior to the time any judgment had been obtained thereby falsely implying that the Plaintiff had no opportunity to defend any lawsuit commenced against him and that a judgment against the plaintiff was inevitable simply upon the filing and service of the lawsuit, (AC ¶ 23); (b) "threaten[s] illegal action in that [BDA] cannot commence legal action against Plaintiff as [BDA] is not the true owner of the alleged debt and therefore has no standing to commence legal standing to commence legal action as threatened",*fn2 (AC ¶ 24); and (c) "falsely implies that the telephone numbers and fax number set forth thereon are those of [BDA] when said telephone numbers and fax numbers are those of [TCC]," (AC ¶ 25); and

(2) Diamond compelled a de minimis payment towards the debt owed on the Account knowing the statute of limitations had expired but did not disclose the expiration of the statute of limitations and requested the de minimis payment solely to revive the ability to commence formal legal action to collect the debt, (AC ¶¶26-28).

As against Vlock and V&A there remains the cause of action for violation of 15 U.S.C. § 1692g based on the Collection Action summons and complaint constituting an initial communication within the meaning of the FDCPA and therefore were required to contain the 30 day debt verification/dispute advisement set forth in § 1692g. (AC ¶ 43-44).

Discussion

I. The Motion for Reconsideration is Granted

The decision to grant or deny a motion for reconsideration lies squarely within the discretion of the district court. See Devlin v. Transp. Comm'ns Union, 175 F.3d 121, 132 (2d Cir. 1999). The standard for a motion for reconsideration "is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or [factual] data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (finding district court properly exercised its discretion to reconsider earlier ruling in light of the introduction of additional relevant case law and substantial legislative history); see also Arum v. Miller, 304 F. Supp. 2d 344, 347 (E.D.N.Y. 2003) ("To grant such a motion the Court must find that it overlooked matters or controlling decisions which, if considered by the Court, would have mandated a different result.") (citation and internal quotation marks omitted). "The major grounds justifying reconsideration are 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478 at 790). Thus, a "'party may not advance new facts, issues, or arguments not previously presented to the Court.'" National Union Fire Ins. Co. v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001)(quoting Polsby v. St. Martin's Press, No. 97 Civ. 690, 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000)). A party may, however, introduce relevant authority that was not before the district court when it initially ruled on the matter. See Vaughn v. Consumer Home Mortgage Co., 2007 WL 140956 at *6 (E.D.N.Y. Jan. 22, 2007). In the alternative, reconsideration is appropriate if a court "misinterpreted or misapplied" relevant case law in its original decision.

Here, Defendants have not invoked a typical ground in seeking reconsideration, but rather are asking the Court to revisit its March 2, 2010 decision because it purportedly is at odds with portions of the September 30, 2008 Order. Although the Court perceives no such inconsistency, reconsideration is granted given the importance of both ...


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