Lewis v. Sole Law, PLLC

• Decision Date: 24 January 2023
• Docket Number: 1:21-cv-12846
• Parties: COTY LEWIS, Plaintiff, v. SOLE LAW, PLLC and KATHRYN SOLE, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

COTY LEWIS, Plaintiff,
v.
SOLE LAW, PLLC and KATHRYN SOLE, Defendants.

No. 1:21-cv-12846

United States District Court, E.D. Michigan, Northern Division

January 24, 2023

Honorable Patricia T. Morris United States Magistrate Judge

OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO AMEND OR TO RELIEVE JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SANCTIONS

Honorable Thomas L. Ludington United States District Judge

Coty Lewis filed this case to prevail on a question of first impression. In sum, he wants the Fair Debt Collection Practices Act (FDCPA) to apply to debts that are not commercial.

But he lost twice, and then his case was dismissed. So he is seeking relief from the judgment. And, because he lost, Defendants are seeking sanctions. Both motions will be denied.

I.

Plaintiff Coty Lewis has sued Defendants Kathryn Sole and her law firm Sole Law under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p.^[1] ECF No. 1. The case was referred to Magistrate Judge Patricia T. Morris. ECF No. 4.

The following facts come verbatim from Magistrate Judge Patricia T. Morris's Report and Recommendation (R&R), which the parties have not contested:

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Acuity Real Estate Services operates a website which refers prospective clients to real estate brokerages throughout the country. Seeking new clients who wished to purchase homes in the mid-Michigan area, a Re/Max New Image franchise located in Saginaw County entered into a referral agreement with Acuity through Acuity's website. Under their agreement Acuity referred a group of prospective clients to Re/Max in exchange for thirty-five percent of the commission Re/Max received from any sale involving the prospective clients Coty Lewis, a “salesperson” for Re/Max, signed the agreement on behalf of his franchise

The following year, Acuity sued Lewis in a Florida court, alleging that while [Plaintiff] brokered a sale on behalf of a client provided by Acuity, neither [Plaintiff] nor Re/Max paid Acuity its referral fee. [Defendant] Kathryn Sole, a Florida attorney and the “managing member” of Sole Law PLLC, represented Acuity in this lawsuit and successfully obtained a judgment against Lewis. With [Defendant's] help, Acuity later obtained a garnishment of Lewis's wages.

According to [Plaintiff], his case is not unique. Since 2014, [Defendant] represented Acuity in thirty collection lawsuits. In each case, despite entering into a referral agreement with a brokerage company, Acuity sued the individual “salesperson” who handled the referred clients. Acuity sued each salesperson “in their personal capacity,” and brought each suit in its “home forum of Hillsborough County, Florida.”

After [Defendant] obtained a garnishment on behalf of Acuity, [Plaintiff] filed a complaint against [Defendant] and her law firm in this Court, alleging that [they] violated various provisions of the FDCPA by pursuing Acuity's lawsuit in a Florida court. [Defendant]-individually and on behalf of her firm-responded by moving for dismissal of [Plaintiff's] entire complaint, arguing that this Court lacks personal jurisdiction over [Defendants], and alternatively, that [Plaintiff] failed to state a plausible claim for relief under the FDCPA.

Lewis v. Sole L., PLLC, No. 1:21-CV-12846, 2022 WL 3337137, at *1 (E.D. Mich. June 22, 2022) (internal citations omitted).^[2]

After Judge Morris's recommendation, this Court procedurally and substantively overruled Plaintiff's objections to the R&R, adopted the R&R, granted Defendants' Motion to Dismiss, and dismissed the case with prejudice. Lewis v. Sole L., PLLC, No. 1:21-CV-12846, 2022 WL 4365706 (E.D. Mich. Sept. 21, 2022) (overruling Plaintiff's objections “[f]or improperly objecting,” for

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“rais[ing] the same arguments” without “demonstrate[ing] a flaw in Judge Morris's analysis,” and because “the commercial debt at issue is not cognizable under the FDCPA”).

After Plaintiff appealed, he filed a motion to amend or to relieve the judgment, which was transferred to the Sixth Circuit for lack of jurisdiction due to the pending appeal. Lewis v. Sole L., PLLC, No. 1:21-CV-12846, 2022 WL 6775675 (E.D. Mich. Oct. 11, 2022). Then Defendants filed a motion for sanctions, which was also transferred. Lewis v. Sole L., PLLC, No. 1:21-CV-12846, 2022 WL 10667978 (E.D. Mich. Oct. 18, 2022).

But the Sixth Circuit remanded both motions for lack of jurisdiction. Lewis v. Sole L., PLLC, No. 22-1918 (6th Cir. Dec. 21, 2022) (remanding the Motion to Amend or to Relieve under Federal Rule of Appellate Procedure 4(a)(4) and the Motion for Sanctions under Kallok v. Boardman Local School District Board of Education, 24 Fed.Appx. 496, 498 (6th Cir. 2001)).

The Motion to Amend or to Relieve the Judgment will be denied in Part II, and the Motion for Sanctions will be denied in Part III.

II.

A.

Plaintiff has filed a motion to amend the judgment under Federal Rule of Civil Procedure 50(e) or to relieve the judgment under Federal Rule of Civil Procedure 60(b)(1) or 60(b)(6).

A party may seek alteration or amendment of a judgment within 28 days of entry. FED. R. CIV. P. 59(e). A district court may grant a Rule 59(e) motion if there is (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice. Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005) (citing GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)).

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Similarly, a district court may relieve a party of its order based on “mistake, inadvertence, surprise, or excusable neglect.” FED. R. CIV. P. 60(b)(1). “[A] Rule 60(b)(1) motion is intended to provide relief in only two situations: (1) when a party has made an excusable mistake or an attorney has acted without authority, or (2) when the judge has made a substantive mistake of law or fact in the final judgment or order.” United States v. Reyes, 307 F.3d 451, 455 (6th Cir. 2002) (quoting Cacevic v. City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000)).

And district courts may amend an order under the catch-all provision of Rule 60(b)(6) “for any other reason that justifies relief.” Cernelle v. Graminex, LLC, 539 F.Supp.3d 728, 734 (E.D. Mich. 2021), aff'd, No. 21-1579, 2022 WL 2759867 (6th Cir. July 14, 2022).

B.

As a threshold matter, Plaintiff's Motion will be denied for lack of analysis because he has not identified which of his arguments seek relief under Rule 50(e), 60(b)(1), or 60(b)(6). True, he cites the standard of review for those three rules in conclusory fashion, which he followed with a four-page “argument.” See ECF No. 18 at PageID.506-09. But Plaintiff's argument does not cite or even reference Rule 59 or Rule 60. Nor does it explain why either of those Rules warrants the relief that he seeks. Nor does he cite any case from any court that might explain why his “argument” warrants relief under Rule 59 or 60. Therefore, Plaintiff's Motion to Amend or to Relieve the Judgment will be denied. E.g., Magna Elecs., Inc. v. TRW Auto. Holdings Corp., No. 1:12-CV-654, 2016 WL 4239184, at *7 (W.D. Mich. Jan. 6, 2016) (denying motion for reconsideration due to “lack of analysis”).

Even though Plaintiff has not provided any analysis under Rules 59 or 60, his arguments will be assessed on the merits to the extent that they can be discerned.

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C.

Plaintiff seems to first argue that he properly objected to the R&R. To that end, he relies on Kelly v. Withrow, 25 F.3d 363 (6th Cir. 1994) for the proposition that specific objections require no more than “a concise statement of the specific holdings of the magistrate judge to which exception is taken.” ECF No. 18 at PageID.506-07.

But Plaintiff's contextomy does not warrant the relief that he seeks. The Kelly court “caution[ed] the attorneys of the circuit that a concise statement of specific holdings of the magistrate judge to which exception is taken is the preferred and safer course” because the district judge must be “able to understand and review the specific determinations of the magistrate objected to by the petitioner.” Kelly, 25 F.3d at 366.

Here, Plaintiff did not take “the preferred and safer course” and did not offer specific objections to the R&R. Rather, he chose to make a general objection. Under binding Sixth Circuit precedent, a general objection to an R&R is a failure to object. Howard v. Sec'y of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991); Neuman v. Rivers, 125 F.3d 315, 323 (6th Cir. 1997); King v. Caruso, 542 F.Supp.2d 703, 706 (E.D. Mich. 2008). Thus, Plaintiff's failure to file specific objections constituted a waiver of his right of appeal. Howard, 932 F.2d at 508.

An “objection” is not valid if it merely disagrees with a magistrate judge's determination “without explaining the source of the error.” Id. at 509. Without specific objections, “[t]he functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks.” Id. This wastes judicial resources and runs contrary to the...