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Few v. Receivables Performance Management, LLC

United States District Court, N.D. Alabama, Eastern Division

November 13, 2018

TINA FEW, Plaintiff,
v.
RECEIVABLES PERFORMANCE MANAGEMENT, LLC, Defendant.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         This matter comes before the court on Plaintiff Tina Few's motion for reconsideration brought under Rule 59(e) of the Federal Rules of Civil Procedure. (Doc. 23).

         Ms. Few asserted that Defendant Receivables Performance Management violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), by contacting her using an automated dialing machine in an attempt to collect a debt after she revoked her consent to receive debt-collection calls. Receivables moved for summary judgment arguing, in part, that it was entitled to judgment as a matter of law because Ms. Few could not revoke consent to receive debt-collection calls after she gave consent in a contract. The court granted Receivables's amended motion for summary judgment reasoning that “Ms. Few could not unilaterally revoke her consent to receive debt-collection calls because she agreed to provide that consent as part of a bargained-for exchange.” (Doc. 21 at 1). Ms. Few asks the court to reconsider its decision.

         In her motion for reconsideration, Ms. Few has identified a manifest error of law in the court's Memorandum Opinion and Final Order granting Receivables's motion for summary judgment. Contrary to the court's Memorandum Opinion, binding Eleventh Circuit precedent establishes that Ms. Few could unilaterally and orally revoke her consent to receive debt-collection calls unless a contract restricted the means by which she could revoke consent. Her contract contains no such restriction so she was free to orally revoke consent. For this reason and as further explained below, the court WILL GRANT Ms. Few's motion for reconsideration, WILL VACATE its Memorandum Opinion and Final Order, and WILL ENTER a separate opinion on the motion for summary judgment.

         I. STANDARD OF REVIEW

         A motion for reconsideration seeks post-judgment relief from a district court. Rule 59(e) of the Federal Rules of Civil Procedure permits an aggrieved party to file “[a] motion to alter or amend a judgment . . . no later than 28 days after the entry of the judgment.” And a motion for reconsideration is essentially the same as a motion to alter or amend judgment, so a district court analyzes a motion for reconsideration under Rule 59(e). See Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).

         But Rule 59 also aims to enforce the finality of a court's judgment. Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1129 n.6 (11th Cir. 1994). So, unsurprisingly, granting a Rule 59(e) motion for reconsideration “is an extraordinary remedy and is employed sparingly.” Rueter v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 440 F.Supp.2d 1256, 1267 (N.D. Ala. 2006). Indeed, the Eleventh Circuit recognizes only newly-discovered evidence or a manifest error of law or fact as grounds for granting a Rule 59(e) motion. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). Ms. Few's motion proceeds only on the grounds of a manifest error of law.

         II. BACKGROUND

         1. Factual Background

         The court will briefly restate the facts that were pertinent to the court's decision on Receivables's amended motion for summary judgment.

         Ms. Few and DISH Network agreed to a contract to provide Ms. Few with DISH's television and high-speed internet services. As part of the contract, Ms. Few provided DISH with a telephone number ending in 0268 and signed her name immediately above the following “Customer Contact Information” section:

By signing above, you authorize DISH, and/or any debt collection agency and/or debt collection attorney hired by DISH, to contact you regarding your DISH Network account or to recover any unpaid portion of your obligation to DISH, through an automated or predictive dialing system or prerecorded messaging system, at the phone number . . . you have provided . . . .

(Doc. 6-3 at 15).

         In April 2017, DISH provided Receivables, a debt-collections firm, with the 0268 phone number for the purpose of recovering an alleged debt on the account. On April 27, 2017, Ms. Few answered a call from Receivables and informed the caller that she no longer wished to receive calls from Receivables. Receivables nevertheless continued calling. Ms. Few contends that she “has ...


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