Lynn v. Monarch Recovery Mgmt., Inc.

• Citation: 953 F.Supp.2d 612
• Decision Date: 17 June 2013
• Docket Number: Civil No. WDQ–11–2824.
• Parties: Kevin M. LYNN, Plaintiff, v. MONARCH RECOVERY MANAGEMENT, INC., Defendant.
• Court: U.S. District Court — District of Maryland

953 F.Supp.2d 612

Kevin M. LYNN, Plaintiff,
v.
MONARCH RECOVERY MANAGEMENT, INC., Defendant.

Civil No. WDQ–11–2824.

United States District Court,
D. Maryland,
Northern Division.

June 17, 2013.

[953 F.Supp.2d 615]

Michael Craig Worsham, Law Office of Michael Craig Worsham, Forest Hill, MD, for Plaintiff.

Erin O. Brien Millar, Whiteford Taylor and Preston, LLP, Baltimore, MD, Bryan Christopher Shartle, Justin H. Homes, Michael David Alltmont, Sessions Fishman Nathan and Israel, LLC, Metairie, LA, for Defendant.

MEMORANDUM OPINION
WILLIAM D. QUARLES, JR., District Judge.

Kevin M. Lynn sued Monarch Recovery Management, Inc. (“Monarch”) for violating the Telephone Consumer Protection Act ¹ (the “TCPA”), the Maryland Telephone Consumer Protection Act ² (the “MDTCPA”), and the Fair Debt Collection Practices Act ³ (the “FDCPA”). On March 25, 2013, 2013 WL 1247815, the Court granted in part and denied in part the parties' cross motions for summary judgment, and denied Lynn's motion to certify questions of law. Pending are Lynn's motion for reconsideration, and Monarch's motion for certification of an immediate interlocutory appeal. For the following reasons, Lynn's motion for reconsideration will be granted in part and denied in part;

[953 F.Supp.2d 616]

Monarch's motion for certification will be denied.

I. Background

Since 2006, Lynn has lived on Grouse Court in Frederick, Maryland. Lynn Aff. ¶ 1. The house was previously owned by George Teddy. Id. ¶ 3. Also since 2006, Lynn's house phone number has been xxx–xxx–2250 (the “2250 number”). Id. ¶ 4. Initially, Lynn subscribed to the 2250 number through Verizon, as a residential line. Id. ¶ 5. On or about June 24, 2009, Lynn obtained Voice over Internet Protocol (“VoIP”) service ⁴ for the 2250 number through Canadian company Swiftvox, Inc., d/b/a VoIP.MS. Id. ¶ 6; Lopez ⁵ Aff. ¶ 1. VoIP.MS charges Lynn for incoming calls to the 2250 number, and separately charges Lynn for the transmission of caller ID information of incoming calls. Lynn Aff. ¶ 7.

Monarch is a debt collector. Compl. ¶ 3; Am. Answer ¶ 3; ECF No. 42 at 3. Between July 2010 and January 2011, three separate accounts were placed with Monarch for collection. See ECF Nos. 42–1, 42–2, 42–3. Two of the accounts named Teddy as the debtor, and listed Teddy's address as the same Grouse Court address as Lynn's. ECF Nos. 42–1, 42–2. The third account named Mark Lynn as the debtor. ECF No. 42–3. Mark Lynn is Lynn's brother, and has lived in or near Tacoma, Washington for eight years. Lynn Aff. ¶ 23.⁶ Monarch “identified” the 2250 number as the telephone number for both debtors. Mazzacano Dep.⁷ at 39–40, 127.⁸

Beginning on July 19, 2010, Monarch began calling the 2250 number to collect on the accounts. ECF No. 48–5; see Mazzacano Dep. at 6.⁹ Monarch called the 2250 number 37 times between July 19, 2010 and May 17, 2011. ECF No. 48–5. The calls were made using Aspect dialer equipment, an automatic telephone dialing system (“ATDS”). ECF No. 33.¹⁰ In addition to a monthly rate of $1.49, Lynn's VoIP.MS account for the 2250 number was charged $0.0149 per minute for each of Monarch's 37 incoming calls, in six-second increments. Lynn Aff. ¶ 9; Lopez Aff. ¶¶ 3–5. The account was separately

[953 F.Supp.2d 617]

charged $0.00149 for each transmission of caller ID for the incoming calls. Lynn Aff. ¶ 10; Lopez Aff. ¶ 3. On May 12, 2011, Lynn called Monarch twice and advised the recipient that calling his number cost him on a per-minute basis. Lynn Aff. ¶ 22. Monarch called Lynn three more times, on May 13 and 17, 2011. ECF No. 48–5.

On August 30, 2011, Lynn filed suit against Monarch in the Circuit Court for Baltimore County, Maryland. ECF No. 2.¹¹ On October 3, 2011, Monarch removed the action to this Court. ECF No. 1. On October 14, 2011, Monarch answered the complaint. ECF No. 5. On November 14, 2011, Monarch filed an amended answer. ECF No. 17. On July 27, 2012, Monarch moved for summary judgment. ECF No. 41. On August 18, 2012, Lynn opposed Monarch's motion and cross moved for summary judgment. ECF No. 48. On September 11, 2012, Monarch opposed Lynn's cross motion and replied. ECF No. 57. On September 22, 2012, Lynn replied. ECF No. 58. On December 6, 2012, Lynn moved to certify two questions of law regarding the MDTCPA to the Maryland Court of Appeals. ECF No. 69. On December 26, 2012, Monarch opposed the motion to certify. ECF No. 70. On January 20, 2013, Lynn replied. ECF No. 71.

On March 25, 2013, the Court granted in part and denied part the parties' cross motions for summary judgment, and denied Lynn's motion to certify. ECF Nos. 72, 2013 WL 1247815 73. Relevant here, the Court held that Lynn's TCPA claims are within the statute's “call charged” provision (47 U.S.C. § 227(b)(1)(A)(iii)), which makes it unlawful for a person to use an ATDS to call, inter alia, “any telephone number assigned to ... any service for which the called party is charged for the call.” ¹²

[953 F.Supp.2d 618]

Because Lynn submitted evidence that he was charged for each of the calls initiated by Monarch, seeECF No. 72 at 4, the Court granted Lynn's motion for summary judgment—and denied Monarch's—on Counts One, Two, and Three.¹³ECF No. 72 at 20, 21, 31, 32; ECF No. 73. The Court also held that the TCPA's technical standards—prescribed in § 227(d) and implemented by 47 C.F.R. § 64.1200(b)—do not authorize a private right of action, and thus granted Monarch's motion for summary judgment, and denied Lynn's, on Count Four. ECF No. 72 at 24–25, 32; ECF No. 73.¹⁴

On April 8, 2013, Lynn moved for reconsideration. ECF No. 75. On April 22, 2013, Monarch moved for certification of an interlocutory appeal. ECF No. 76. On April 25, 2013, Monarch opposed Lynn's motion for reconsideration. ECF No. 80. On May 9, 2013, Lynn opposed Monarch's motion for certification. ECF No. 83. On May 28, 2013, Monarch replied. ECF No. 84.

II. Analysis

A. Lynn's Motion for Reconsideration

1. Legal Standard

Motions for reconsideration of an interlocutory order are governed by Federal Rule of Civil Procedure 54(b), under which “any order ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” Fed.R.Civ.P. 54(b).¹⁵ Thus, when warranted, a district court retains the power to reconsider and modify its interlocutory judgments at any time before final judgment. Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514–15 (4th Cir.2003).¹⁶ Resolution of the motion is “committed to the discretion of the district court,” id. at 515, and “the goal is to reach the correct judgment under law.”

[953 F.Supp.2d 619]

Netscape Commc'n Corp. v. ValueClick, Inc., 704 F.Supp.2d 544, 547 (E.D.Va.2010) (internal citations omitted).

Although Rule 60(b) applies only to final judgments, a court may consider the reasons in that rule when deciding whether to grant relief under Rule 54(b).¹⁷See Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1470 (4th Cir.1991); Mateti, 2009 WL 3633339, at *4.

2. The Merits

Lynn asks the Court to reconsider denial of summary judgment on his MDTCPA “claims,” ¹⁸ and of his motion to certify, on the grounds that “Maryland's highest court ... has not decided this issue” and the only reported Maryland appellate case on point ¹⁹ was wrong. See ECF No. 75 at 1–3. Monarch argues that Lynn's motion “merely recites the same arguments the Court previously considered and rejected,” rendering reconsideration inappropriate. ECF No. 80 at 2.

A court's discretion to review an interlocutory order is “not subject to the strict standards applicable to motions for reconsideration of a final judgment,” ²⁰ but is “within the plenary power of the Court ... to afford such relief ... as justice requires.” ²¹ Although Rules 59(e) and 60(b) do not govern reconsideration of an interlocutory order, the Fourth Circuit has suggested that at least parts of those rules may guide a court's analysis.²² In considering whether to revise interlocutory decisions, district courts in this Circuit have looked to whether movants presented new arguments ²³ or evidence,²⁴ or whether the

[953 F.Supp.2d 620]

court has “obviously misapprehended a party's position or the facts or applicable law.” ²⁵

Count Four of Lynn's complaint alleged that Monarch violated the MDTCPA by violating 47 C.F.R. § 64.1200(b),²⁶ which implements 47 U.S.C. § 227(d) (“Technical and procedural standards”). See Compl. ¶ 67. The Court relied on the Maryland Court of Special Appeals's decision in Worsham v. Ehrlich, 181 Md.App. 711, 957 A.2d 161 (Md.Ct.Spec.App.2008),²⁷cert. denied,406 Md. 747, 962 A.2d 373 (2008)—cited with approval in Worsham v. Accounts Receivable Management, Inc., 497 Fed.Appx. 274, 278 (4th Cir.2012)—in granting Monarch's motion for summary judgment on Count Four, and denying Lynn's cross motion on that Count. ECF No. 72 at 25, 32. The Court further denied Lynn's motion to certify, concluding that his first question (whether there is a private cause of action under the MDTCPA for a technical violation of the TCPA) had already been answered in Ehrlich, and his second question (whether a private individual can obtain statutory damages under the TCPA and MDTCPA for the same violation) was premature. Id. at 36.

Lynn principally argues that the Court should not defer to Ehrlich, because the “same” court had earlier ruled, incorrectly, that the TCPA does not authorizeany private right of action, and because the Ehrlich decision improperly relied on legislative intent.²⁸ Lynn also reiterates that “[a] holding that the [MDTCPA] creates a private right of action for one portion of the federal TCPA or FCC regulations, but not for others” is “contrary to the plain language of the [MDTCPA].” ECF No. 75 at 3; see ECF No. 48–1 at 14–16.

In apparent reference to the Rule 59(e) and 60(b) factors, Lynn asserts that the U.S. Supreme Court's decision in Citizens United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), which “opened the...