United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff Larry
Harrington's Motion for Reconsideration (Doc. 145) filed
on May 18, 2017. Defendants RoundPoint Servicing Corporation
(“RoundPoint”) and Multibank 2010-1 SFR Venture,
LLC (“Multibank”) filed a consolidated Response
in Opposition (Doc. 146) on May 31, 2017. The matter is ripe
facts of this case are detailed at length in the Court's
previous orders. Therefore, in the interest of brevity, the
Court will recite only the salient facts. In September of
2003, Harrington and his wife, Lori Harrington (collectively,
the “Harringtons”), executed an agreement with a
builder in anticipation of buying a property and constructing
a home thereon. (Doc. 111-5).
months later, the Harringtons took out a loan (the
“Loan”) in connection with their purchase of the
property. (Doc. 111-3). In so doing, they executed a
promissory note (the “Note”) that was secured by
a mortgage (the “Mortgage”) on the property.
(Doc. 111-3, 111-4). The Note and Mortgage were then put
together in a file for the Loan. Later, the rights to the
Loan changed hands, eventually coming to be owned by
Multibank. (Doc. 111 at ¶ 6). As a result of the
acquisition, the Loan file containing the Note and Mortgage
was transmitted to RoundPoint, Multibank's debt service
company. (Doc. 111-2 at ¶ 8).
Harringtons then eventually defaulted on their obligations by
failing to make required payments, thereby prompting
RoundPoint to attempt to contact them. (Doc. 111-2 at
¶¶ 10, 14). Those attempts were initially
unsuccessful because RoundPoint did not have the correct
contact information. (Doc. 111-2 at 21). That allegedly
changed on November 29, 2010, when Defendants allege that
Harrington provided them with his cell phone number while
calling to check on the status of the Loan. (Doc. 111-2 at
¶ 20). Nevertheless, from November 2010 until June 2011,
Defendants allege that only one call was placed to
Harrington's cell phone number. (Doc. 111-2 at ¶
2011, RoundPoint received a telephone call from someone
purporting to be Lori Harrington. (Doc. 111-9 at ¶ 3).
During the call, the individual inquired about hazard
insurance on the Harringtons' property, and in the
process provided Harrington's cell phone number as a
point of contact. (Doc. 111-10 at 3:19-4:1). From that day
forward, RoundPoint frequently attempted to effectuate
telephonic contact via Harrington's cell phone number.
(Docs. 111-2 at ¶ 27; 111-7 29-58).
28, 2015, Harrington filed this action, alleging that
Defendants violated the Telephone Consumer Practices Act
(“TCPA”) and Florida Consumer Collection
Practices Act (“FCCPA”) when that RoundPoint,
acting on behalf of Multibank, wrongfully utilized an
automatically-dialed telephone to call his cell phone number
repeatedly without his prior express consent. The case then
proceeded through litigation.
September 14, 2015, Defendants filed an Amended Motion to
Strike Plaintiff's Jury Trial Demand, citing the
existence of a jury trial waiver in the Mortgage. (Doc. 29 at
2). In response, Harrington argued that the jury waiver
should not apply because his claims did not arise from, or
relate to, the Mortgage. (Doc. 31 at 10-15). Upon review, the
Court granted the Motion, striking the jury demand. (Doc. 62
at 6). In so doing, the Court found that the Harrington's
claims were inextricably linked to the Mortgage, and
therefore subject to the jury waiver. (Doc. 62 at 6). Over a
year later, and with a bench trial in the immediate future,
Harrington now moves for reconsideration.
general, “[r]econsideration of a court's previous
order is an extraordinary remedy and, thus, is a power which
should be used sparingly.” Carter v. Premier Rest.
Mgmt., No. 2:06-CV-212, 2006 WL 2620302, at *1 (M.D.
Fla. Sept. 13, 2006) (citing American Ass'n of People
with Disabilities v. Hood, 278 F.Supp.2d 1337, 1339
(M.D. Fla. 2003)). It “cannot be considered a vehicle
for raising issues or citing authorities the party could or
should have presented prior to the court's ruling.”
Wendy's Int'l, Inc. v. Nu-Cape Const., Inc.,
169 F.R.D. 680, 686 (M.D. Fla. 1996). Similarly, it
“does not provide an opportunity to simply reargue - or
argue for the first time - an issue the Court has once
determined.” Carter, 2006 WL 2620302, at
*1. Most importantly, the Court's opinions
“are not intended as mere first drafts, subject to
revision and reconsideration at a litigant's
pleasure.” Id.; see also Ludwig v. Liberty
Mut. Fire Ins. Co., No. 8:03-CV-2378, 2005 WL 1053691, at *11
(M.D. Fla. Mar.30, 2005) (stating “a motion for
reconsideration is not the proper forum for [a] party to vent
dissatisfaction with the Court's reasoning”).
reconsideration is only appropriate where the movant can show
the existence of “(1) an intervening change in the
controlling law; (2) the availability of new evidence; (3)
the need to correct clear error or prevent manifest
injustice.'” Susman v. Salem, Saxon &
Meilson, P.A., 153 F.R.D. 689, 904 (M.D. Fla. 1994);
see also Carter, 2006 WL 2620302 at *1. In
furtherance of that standard “[a] motion for
reconsideration should raise new issues” Paine
Webber Income Props. Three Ltd. P'ship v. Mobil Oil
Corp., 902 F.Supp. 1514, 1521 (M.D. Fla. 1995), and
“set forth facts or law of a strongly convincing nature
to demonstrate to the court the reason to reverse its prior
decision.” Carter, 2006 WL 2620302 at *1
(citing Taylor Woodrow Constr. Corp. v. Sarasota/Manatee
Auth., 814 F.Supp. 1072, 1072-73 (M.D. Fla. 1993)).
this backdrop, Harrington argues that he “continues to
believe and assert he is entitled to a jury trial.”
(Doc. 145 at 3). In addition, and without any form of
substantive argument on the subject, Harrington presents
decisions from the Middle District of Florida that were
issued after the Court's previous Order and that decided
against enforcing a jury waiver in TCPA or FCCPA claims.
(Doc. 145 at 4). This is insufficient to warrant
reconsideration. For one thing, “[t]he movant must do
more than simply restate his or her previous
arguments.” Waite v. AII Acquisition Corp.,
194 F.Supp.3d 1298, 1307 (S.D. Fla. 2016). Thus
Harrington's mere recitation of belief is unavailing. For
another, decisions from elsewhere in the Middle District of
Florida do not constitute the type of controlling authority
for which a subsequent decision would merit reconsideration.
McGinley v. Houston, 361 F.3d 1328, 1331 (11th Cir.
2004) (“The general rule is that a district judge's
decision neither binds another district judge nor binds him,
although a judge ought to give great weight to his own prior
nothing Harrington has presented indicates that Court's
decision constituted clear error or manifest injustice. To
the contrary, other courts in the Middle District of Florida
have also found that a jury waiver in a mortgage is binding
for the purposes of TCPA and FCCPA cases. SeeMartorella v. Deutsche Bank Nat. Trust Co., No.
12-80372-CIV, 2013 WL 1136444, at *3 (S.D. Fla. Mar. 18,
2013); see also ...