United States District Court, D. Maryland
ROBERT HOROWITZ, et al.
CONTINENTAL CASUALTY COMPANY, et al.
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.
pending and ready for resolution in this case is a motion to
alter or amend the court's judgment filed by Plaintiffs
Robert and Cathy Horowitz ("Plaintiffs") (ECF No.
46) and a motion for sanctions filed by Defendant Eccleston
and Wolf, P.C. ("Eccleston") (ECF No. 44). The
relevant issues have been fully briefed, and the court now
rules, no hearing being deemed necessary. Local Rule 105.6.
For the following reasons, both motions will be denied.
factual and procedural background to this case may be found
in the memorandum opinion issued on December 28, 2015 (the
"Memorandum Opinion"). (ECF No. 42, at 1-5). The
Memorandum Opinion and an accompanying order granted the
motions to dismiss filed by Defendants Eccleston; Selzer
Gurvitch Rabin Wertheimer Polott & Obecny, P.C.
("Selzer"); Bregman, Berbert, Schwartz & Gilday,
LLC ("Bregman"); and Continental Casualty Company
("Continental"). Accordingly, the first amended
complaint was dismissed. On January 11, 2016, Eccleston filed
the pending motion for sanctions (ECF No. 44), and the court
ordered Plaintiffs to respond within twenty-one days (ECF No.
45). On January 25, Plaintiffs filed the pending motion to
alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e).
(ECF No. 46). Plaintiffs then responded to the motion for
sanctions (ECF No. 49), and Eccleston replied (ECF No. 54).
Each defendant responded to Plaintiffs' motion for
reconsideration (ECF Nos. 50; 51; 52; 53), and Plaintiffs
replied (ECF No. 55).
Plaintiffs' Motion for Reconsideration
Standard of Review
have recognized three limited grounds for granting a motion
for reconsideration under Rule 59(e): (1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not previously available; or (3) to correct clear
error of law or prevent manifest injustice. See United
States ex. rel. Becker v. Westinghouse Savannah River
Co., 305 F.3d 284, 290 (4th Cir. 2002)
(citing Pacific Ins. Co. v. Am. Nat'l Fire Ins.
Co., 148 F.3d 396, 403 (4th Cir. 1998)).
59(e) motion "may not be used to relitigate old matters,
or to raise arguments or present evidence that could have
been raised prior to the entry of judgment." Pac.
Ins. Co., 148 F.3d at 403 (quoting 11 Wright, et al.,
Federal Practice & Procedure § 2810.1, at 127-28 (2d ed.
1995)); see also Medlock v. Rumsfeld, 336 F.Supp.2d
452, 470 (D.Md. 2002), aff'd, 86 F.App'x 665
(4th Cir. 2004) (citation omitted) ("To the
extent that Plaintiff is simply trying to reargue the case,
he is not permitted to do so. Where a motion does not raise
new arguments, but merely urges the court to ‘change
its mind, ' relief is not authorized."). "In
general, ‘reconsideration of a judgment after its entry
is an extraordinary remedy which should be used
sparingly.'" Pac. Ins. Co., 148 F.3d at 403
(quoting Wright, et al., supra, § 2810.1, at
assert that reconsideration is necessary "to prevent
clear errors of law and ensure adherence to the standard of
review that requires facts pleaded in the complaint to be
deemed true." (ECF No. 46, at 1). Plaintiffs seek
reconsideration on: the court's application of res
judicata and collateral estoppel; the holding that
Plaintiffs failed to plead sufficient facts showing
Continental and Eccleston were debt collectors for purposes
of the Fair Debt Collection Practices Act
("FDCPA"), the Maryland Debt Collection Act
("MCDCA"), and the Maryland Collection Agency
Licensing Act ("MCALA"); and the dismissal of
Plaintiffs' § 1983 claim against Selzer. Plaintiffs
also seek "permission to re-plead" and request that
the judgment be stayed "until related appeals in state
court are finalized." (ECF No. 46, at 14).
ask that the court reconsider the application of res
judicata to their claims against Selzer and Bregman. In
the Memorandum Opinion, the court held that Maryland's
"transactional approach" to res judicata
barred many of Plaintiffs' claims against Selzer and
Bregman because "the claims all arise from the same
transaction: Selzer and Bregman's representation of
Plaintiffs in their suit against the Zipin Firm." (ECF
No. 42, at 10). Plaintiffs' argument that the court
incorrectly applied the transactional approach is
unpersuasive. Plaintiffs cite to Kent Cty. Bd. of Educ.
v. Bilbrough, 309 Md. 487 (1987), and argue that the
court "ignored the convenient trial unit for the res
judicata transaction test. (ECF No. 46, at 9-10). The
Court of Appeals of Maryland's passing citation to the
Restatement's mention of the "convenient trial
unit" in Kent Cty. does not alter the
Memorandum Opinion's extensive analysis of more recent
Maryland case law regarding the appropriate transactional
test for res judicata. (ECF No. 42, at 7-11).
Specifically, res judicata bars claims, such as
those at issue here, which are "identical to [those]
determined or [those] which could have been raised
and determined in the prior litigation." Comproller
of Treasury v. Sci. Applications Int'l Corp., 405
Md. 185, 195-96 (2008) (emphasis added) (citing R&D 2001,
LLC v. Rice, 402 Md. 648, 663)). Accordingly, Plaintiffs
have not shown that the court's application of res
judicata was a clear error.
Plaintiffs argue that collateral estoppel should not prevent
the court from assessing the legality of the Settlement
Agreement and Release (the "Settlement") that was
entered into by Plaintiffs and the Zipin Firm. (ECF No. 46,
at 7-9). In the Memorandum Opinion, the court determined that
collateral estoppel bars Plaintiffs from relitigating the
legality of the Settlement because Plaintiffs "had
extensive opportunity to litigate these issues" and were
afforded a full opportunity to present arguments before the
circuit court" regarding the Settlement's legality.
(Id. at 13). Plaintiffs' motion for
reconsideration on this point is merely another attempt to
argue that the circuit court's decision was incorrect.
Plaintiffs' continued disagreement with the decisions of
the circuit court does not warrant reconsideration under Rule
their motion, Plaintiffs put forth two primary arguments for
reconsideration of the court's dismissal of the debt
collection claims against Eccleston and Continental: that
Plaintiffs pleaded facts sufficient to show that Eccleston
and Continental engaged in debt collection activities; and
that the court's citation to Fleet Nat. Bank v.
Baker, 263 F.Supp.2d 150 (D.Mass. 2003) was
inappropriate. Plaintiffs' first argument is an attempt
to relitigate the motion to dismiss. Plaintiffs continue to
assert that Eccleston and Continental engaged in debt
collection, but this assertion is not sufficiently supported
by factual allegations. The Memorandum Opinion noted:
"[I]t is well established that ‘the threshold
requirement for application of the [FDCPA] is that prohibited
practices are used in an attempt to collect a
debt.'" Bradshaw, 765 F.Supp.2d at 725
(quoting Mabe v. G.C. Servs. Ltd. P'ship, 32
F.3d 86, 87-88 (4th Cir. 1994)). Plaintiffs assert
that Eccleston represented the Zipin Firm in its action to
recover unpaid fees, but Mr. Zipin and other lawyers at the
Zipin Firm represented themselves in the fee-recovery
portion. (See, e.g., ECF No. 21-7, at 8). Plaintiffs