United States District Court, D. New Jersey
KEVIN MCNULTY, U.S.D.J.
the court is the motion (ECF no. 100) of the defendant,
Pressler and Pressler, LLP ("Pressler"), pursuant
to Loc. Civ. R. 7.1(i), Fed.R.Civ.P. 59(e), and Fed.R.Civ.P.
60(b)(2), to reconsider, alter, or otherwise amend the
Court's award of summary judgment to the plaintiff,
Daniel Bock, Jr. (For convenience, I will refer to it as a
"motion for reconsideration.") For the reasons
stated herein, the motion is denied.
with my prior written opinions in this action is assumed. In
particular, I do not repeat the facts or analysis in my
original opinion granting summary judgment to the plaintiff,
Bock (ECF no. 59 [as amended ECF nos. 61, 62], cited as
"Op.") or my opinion on remand, finding that the
plaintiff possessed Article III standing and reinstating
summary judgment (ECF no. 97, cited as "Remand
action, Bock alleged that Pressler made false or misleading
representations in violation of the Fair Debt Collections
Practice Act (the "FDCPA"), 15 U.S.C. § 1692e.
On June 30, 2014, I filed an exhaustive opinion on the merits
("Op."), denied Pressler's summary judgment
motion, and granted Bock's summary judgment motion. I
entered judgment for Bock in the amount of $1000. (ECF No.
appealed. On appeal, the United States Court of Appeals for
the Third Circuit sua sponte raised the issue of
Bock's Article III standing in light of the intervening
case of Spokeo, Inc. v. Robbins, 136 S.Ct. 1540
(2016), decided by the Supreme Court after my decision but
while the Third Circuit appeal was pending. Bock v.
Pressler & Pressler, LLP, 658 Fed.Appx. 63 (3d Cir.
2016). The Third Circuit remanded the case so that this Court
could determine in the first instance whether Bock's
alleged harm was sufficiently concrete and particularized to
satisfy the injury-in-fact requirement for Article III
standing that was enunciated in Spokeo. Id. at 65.
remand, I authorized supplemental briefing on the subject of
Spokeo and standing (ECF no. 82). The parties
briefed the matter. ((ECF nos. 85, 86, 87, 88, 89, 93, 96)
25, 2017, I filed an Opinion (ECF no. 97) holding that Bock
had established Article III standing. I simultaneously
entered an order (ECF no. 98) that the summary judgment
motion of Bock again be granted, and that of Pressler denied,
"for the reasons stated in the Court's prior Opinion
(ECF no. 59)." I further ordered that "Judgment in
the amount of $1000 shall again be entered in favor of
Plaintiff, in substantially the same form as the prior
Judgment (ECF no. 67), updated to include subsequent
procedural history." (ECF no. 98) Accordingly, also on
May 25, 2017, I re-entered final judgment on substantially
the same terms as before. (See ECF no. 99)
SCOPE OF REMAND AND OF RECONSIDERATION
Implementation of the Court of Appeals' Mandate
reaching the merits of Pressler's motion, it is necessary
to clarify this Court's view of its task on remand. The
Court of Appeals never reached the merits of Pressler's
appeal from my original grant of summary judgment, but
remanded for a jurisdictional determination. I therefore
consider whether, consistent with the Court's mandate, I
must, or even may, accept Pressler's invitation to
revisit the merits of the summary judgment motion.
light of the intervening Spokeo decision, the Court
of Appeals sua sponte raised the issue of
Article III standing. Its opinion, after reviewing the
applicable law on standing, concluded as follows:
Given the Supreme Court's directive in Spokeo
regarding the need for a court to specifically address
concreteness and particularization, we will remand this case
to the District court to determine in the first instance
whether Bock has Article III standing.
(3d Cir. Op. 5 (copy filed at ECF no. 74-2, reported as
Bock v. Pressler's Pressler, LLP, 658
Fed.Appx. 63 (3d Cir. 2016)).
formal judgment, which also constitutes the appellate
court's mandate, stated as follows:
IT IS ORDERED AND ADJUDGED BY THIS COURT
that the judgment of the District Court entered December 4,
2014, be and the same is hereby vacated and remanded to the
District court for further proceedings consistent with this
(3d Cir. Judgment and Mandate (copy filed at ECF no. 74))
[A] district court must adhere to the mandate and the law of
the case as it is established on appeal. Bankers Trust
Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 (3d Cir.
1985). At the same time, a district court is free to decide
any issue that was not explicitly or implicitly decided on a
prior appeal. See Quern v. Jordan, 440 U.S. 332, 347
n. 18, 99 S.Ct. 1139, 1148 n. 18, 59 L.Ed.2d 358 (1979);
Sprague v. Ticonic Bank, 307 U.S. 161, 168, 59 S.Ct.
777, 780, 83 L.Ed. 1184 (1939); Bankers Trust Co.,
supra, 761 F.2d at 950 ....
Taylor v. United States, 815 F.2d 249, 252 (3d Cir.
the Court of Appeals did not reach the merits of the prior
summary judgment order, and did not explicitly or implicitly
rule on the substantive issues presented by Pressler's
appeal. Rather, in light of intervening Supreme Court
authority, it raised an issue as to whether the plaintiff had
possessed Article III standing to pursue his claim in the
first place. It remanded for a determination on that standing
issue. All the mandate required, then, was that this
Court make a determination as to the plaintiffs standing. If
I did not find standing, that would of course end the matter;
such a ruling would imply that the court does not have, and
never had, subject matter jurisdiction.
question here arises from the alternative outcome, in which I
did find standing (as in fact I did). The Court of Appeals
vacated the original judgment; obviously it could not stand
or remain enforceable for so long as there was a cloud on
this court's subject matter jurisdiction. So at a
minimum, having found that the court had jurisdiction, I was
required to (and did) re-enter judgment to restore the
status quo. That is the narrowest view of the man
Dated: that this Court should do no more than remove the
jurisdictional cloud on its prior judgment, and reinstate
that judgment. That was a permissible course of action.
not, however, the only permissible course of action. Nothing
about the mandate of the Court of Appeals constrains this
Court as to the substantive merits. I may, then, entertain
Pressler's motion for reconsideration to the same extent
I could have done if the jurisdictional issue had not
intervened. Insofar as this motion is concerned, the mandate
Scope of Reconsideration Motion
motion under Local Rule 7.1(i), Rule 59(e), or Rule 60(b)(2)
would ordinarily require a substantial threshold showing
before a court will consider reopening matters already
decided. See infra. Because the procedural context
is somewhat convoluted, however, I must clarify what is being
"reconsidered." In particular, I state that
Pressler will not be procedurally disadvantaged for having
asserted these substantive grounds in a motion filed after,
rather than before, May 25, 2017, the date I re-entered
judgment on remand.
my decision on remand was pending, Pressler's counsel
filed a letter ("Supplemental Letter", ECF no. 90)
proffering new substantive (i.e., non-standing)
arguments. The Supplemental Letter argued that the court had
"reversed the burden of proof in its original summary
judgment ruling, and that the FDCPA, at least as applied by
the Court, would violate the Noerr-Pennington
doctrine. The letter also attached "new evidence"
in the form of an expert report by Prof. Michael Ambrosio.
Reasonably, the Supplemental Letter proposed that nothing
further be filed on those issues unless and until the Court
found that it possessed subject matter jurisdiction.
response, I entered a text order stating that I would decide
first whether the Court possessed subject matter jurisdiction
under Spokeo. (ECF no. 92) That text order also
provided that "any reopening of discovery or
supplementation of the earlier summary judgment record will
not be granted as a matter of course, but must be sought by
presumably in response to my text order that Pressler filed
the current motion for reconsideration. (ECF no. 100) In it,
Pressler seeks to reopen the judgment and assert the
additional substantive arguments that were raised in its
Supplemental Letter. I accept that it was not practical for
such a motion to be filed in advance of my ruling on
standing, and I accept the Supplemental Letter as a
sufficient reservation of Pressler's position. I will
therefore consider this motion on its own terms-i.e.,
nunc pro tunc, as if it had been filed at the time
of the Supplemental Letter-without imposing any additional
threshold barrier to consideration.
said, the motion (even considered nunc pro tunc)
does seek reconsideration of matters decided in 2014, in
connection with the original summary judgment ruling. It
therefore does implicate law of the case doctrine ...