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Schmitt v. Messerli & Kramer, P.A.

United States District Court, D. Nebraska

October 15, 2019

VICTOR E. SCHMITT, on behalf of himself, and all others similarly situated; Plaintiff,
v.
MESSERLI & KRAMER, P.A., Defendant.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff Victor Schmitt's Motion to Amend Complaint, ECF No. 29, and Motion for Relief from Judgment, ECF No. 33. For the reasons discussed below, the Motions will be denied.

         BACKGROUND

         The Court incorporates the background discussion from its Memorandum and Order, ECF No. 27, granting summary judgment in favor of Defendant Messerli & Kramer, P.A. (M&K). In the Memorandum and Order, the Court found that Schmitt failed to plead that M&K's standard-form complaint-used by M&K to initiate state court debt collection actions-was false, misleading, deceptive, unfair, or unconscionable under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and granted M&K's Motion to Dismiss for Failure to State a Claim, ECF No. 17, without prejudice.

         Schmitt now seeks an Order from the Court allowing him to amend his Complaint and seeks relief from the Court's previous Memorandum and Order dismissing his Complaint without prejudice.

         STANDARD OF REVIEW

         “Motions under Rule 59(e) ‘serve the limited function of correcting manifest errors of law or fact or to present newly discovered evidence' . . . .” Ryan v. Ryan, 889 F.3d 499, 507 (8th Cir. 2018) (quoting United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006)). Such motions “cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to the entry of judgment.” Id. (quoting Metro. St. Louis Sewer Dist., 440 F.3d at 933). The “district courts have ‘broad discretion in determining whether to alter or amend judgment' under Rule 59(e) . . . .” Ryan, 889 F.3d at 507-08 (quoting Briehl v. Gen. Motors Corp., 172 F.3d 623, 629 (8th Cir. 1999)).

         “Rule 60(b) provides for relief from judgment in any of several enumerated circumstances and for ‘any other reason justifying relief from the operation of the judgment.'” Terra Int'l, Inc. v. Robinson, 113 Fed.Appx. 723, 725 (per curiam) (quoting Fed.R.Civ.P. 60(b)). “Rule 60(b) is ‘not a vehicle for simple reargument on the merits.'” Id. (quoting Broadway v. Norris, 193 F.3d 987, 990 (8th Cir. 1999)). Put simply, “[r]elief under Rule 60(b) is an extraordinary remedy . . . .” Hunter v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004) (citing In re Design Classics, Inc., 788 F.2d 1384 (8th Cir. 1986)).

         Post-judgment motions for leave to amend may be granted if timely made. United States ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d 818, 823 (8th Cir. 2009). The Eighth Circuit has “repeatedly explained that ‘[a] motion for leave to amend after dismissal is subject to different considerations than a motion prior to dismissal.'” In re SuperValu, Inc., 925 F.3d 955, 961 (8th Cir. 2019) (quoting Mountain Home Flight Serv., Inc. v. Baxter Cty., 758 F.3d 1038, 1045 (8th Cir. 2014)). A post-judgment motion to amend is still subject to “the considerations of Rule 15, but . . . will be granted only ‘if it is consistent with the stringent standards governing the grant of Rule 59(e) and Rule 60(b) relief.'” Id. (quoting United States v. Mask of Ka-Nefer-Nefer, 752 F.3d 737, 743 (8th Cir. 2014)). The district court has “considerable discretion to deny a post-judgment motion for leave to amend because such motions are disfavored . . . .” Ryan, 889 F.3d at 508 (quoting Hypoguard USA, 559 F.3d at 824). “[F]utility constitutes a valid reason for denial of a motion to amend.” Id. (quoting United States ex rel. Raynor v. Nat'l Rural Utils. Coop. Fin., Corp., 690 F.3d 951, 958 (8th Cir. 2012)).

         DISCUSSION

         Schmitt seeks an Order from the Court allowing him to amend his Complaint and seeks relief from the Court's previous Order dismissing his Complaint without prejudice. Schmitt does not point to any extraordinary circumstances justifying relief under Rule 60(b) and may not use Rule 60(b) to reargue the prior motion to dismiss. For the following reasons, his motions under Rule 59(e) will be denied.

         I. Manifest Error of Law

         Schmitt argues that he is entitled to relief because the Court failed to apply the unsophisticated consumer standard. He also argues that the Court's analysis, relying on Haney v. Portfolio Recovery Associates, L.L.C., 895 F.3d 974 (8th Cir. 2016), and rejecting Powers v. Credit Management Services, Inc., 8:11CV436, 2016 WL 612251 (D. Neb. Feb. 2, 2016), was a manifest error of law, entitling him to relief.

         A. Unsophisticated ...


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