United States District Court, N.D. Alabama, Eastern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
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).
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.
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.
STANDARD OF REVIEW
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
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.
court will briefly restate the facts that were pertinent to
the court's decision on Receivables's amended motion
for summary judgment.
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”
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).
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 ...