Lamkin v. Portfolio Recovery Associates, LLC ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 PAM LAMKIN, No. 2:18-cv-03071 WBS KJN 13 Plaintiff, 14 v. ORDER RE: PLAINTIFF’S MOTION TO AMEND THE JUDGMENT 15 PORTFOLIO RECOVERY ASSOCIATES, LLC, 16 Defendant. 17 18 ----oo0oo---- 19 Plaintiff Pam Lamkin filed this lawsuit against 20 defendant Portfolio Recovery Associates, LLC (“PRA”) alleging 21 that defendant auto-dialed calls to plaintiff’s cellphone without 22 her express consent, in violation of the Telephone Consumer 23 Protection Act (“TCPA”), 47 U.S.C. § 227. The court granted 24 plaintiff’s motion for summary judgment (Docket No. 29.), and 25 pursuant to plaintiff’s request (Compl. ¶ 35. (Docket No. 1)), 26 the court awarded her statutory damages. (Docket No. 29.) 27 Judgment was entered against defendant on September 30, 2019. 28 1 (Docket No. 31.) Despite failing to request pre-judgment 2 interest, post-judgment interest, or costs previously, plaintiff 3 now seeks to amend the court’s judgment pursuant to Federal Rule 4 of Civil Procedure 59(e) to include that additional relief. 5 (Docket No. 36.) 6 The failure of the judgment to include an award of pre- 7 judgment or post-judgment interest was not the result of clerical 8 error or inadvertent omission on the part of the court. The 9 court did not award pre-judgment interest because plaintiff did 10 not ask for it, and the court did not award post-judgment 11 interest because such an award was unnecessary. Pre-judgment 12 interest is awarded at the district court’s discretion. Barnard 13 v. Theobald, 721 F.3d 1069, 1078 (9th Cir. 2013). If plaintiff 14 wanted the court to exercise its discretion to award pre-judgment 15 interest it was incumbent upon her to so request before entry of 16 judgment.1 Post-judgment interest is covered by 28 U.S.C. § 17 1961, which provides that “[i]nterest shall be allowed on any 18 money judgment in a civil case recovered in a district court.” 19 28 U.S.C. § 1961(a). “[P]ost judgment interest is awarded by 20 statute as a matter of law so it is automatically added, whether 21 or not the district court orders it.” Dunn v. HOVIC, 13 F.3d 58, 22 62 (3d Cir. 1993), cert. denied, 510 U.S. 1031. 23 Under Federal Rule of Civil Procedure 59(e), a district 24 court may amend the judgment only if it: “(1) is presented with 25 newly discovered evidence, (2) committed clear error or the 26 27 1 Additionally, the Ninth Circuit has yet to determine whether pre-judgment interest is recoverable in TCPA cases. 28 1 initial decision was manifestly unjust, or (3) if there is an 2 intervening change in controlling law.” Circuit City Stores, 3 Inc. v. Mantor, 417 F.3d 1060, 1063 n.1 (9th Cir. 2005). 4 Amending the judgment is “an extraordinary remedy” that is to be 5 used “sparingly.” Kona Enters., Inc. v. Estate of Bishop, 229 6 F.3d 877, 890 (9th Cir. 2000) (citations omitted). Plaintiff’s 7 only justification for her request is that “[e]quity allows the 8 Court to enter pre-judgment interest.” (Pl.’s Mot. to Amend J. 9 at 5 (Docket No. 36).) This is an insufficient reason to amend 10 the judgment. Rule 59(e) motions “may not be used to raise 11 arguments or present evidence for the first time when they could 12 reasonably have been raised earlier in the litigation.” Kona 13 Enters., 229 F.3d at 890 (emphasis in original). 14 Even if the court were inclined to consider the merits 15 of plaintiff’s motion, “[t]he filing of a notice of appeal 16 generally divests the district court of jurisdiction over the 17 matters appealed.” Davis v. United States, 667 F.2d 822, 824 18 (9th Cir. 1982). Defendant filed a notice of appeal on October 19 1, 2019, and the Ninth Circuit processed the appeal that day. 20 (Docket Nos. 32, 34.) Plaintiff filed this motion to amend the 21 judgment on October 10, 2019.2 (Docket No. 36.) Accordingly, 22 the court cannot amend its judgment to award pre-judgment or 23 post-judgment interest. With regard to taxation of costs, 24 plaintiff may follow the procedure set forth in Federal Rule of 25 26 2 Indeed, plaintiff recognized that defendant’s appeal divested this court of jurisdiction in its request to entertain 27 its motion to amend. (Pl.’s Request to Entertain at 3 (Docket No. 42).) 28 1 Civil Procedure 54(d)(1) and Local Rule 292, 2 IT IS THEREFORE ORDERED that plaintiff’s motion to 3 amend the judgment (Docket No. 36), be, and the same thereby is, 4 DENIED. 5 | Dated: November 13, 2019 Md . ak. 2 6 WILLIAM B. SHUBB 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28