United States District Court, N.D. Illinois, Eastern Division
PAMELA WILLIAMS, individually and on behalf of all others similarly situated, Plaintiff,
NCB MANAGEMENT SERVICES, INC.,
MEMORANDUM OPINION AND ORDER
Williams brought this putative class action in state court
against NCB Management Services, Inc. (“NCB”),
alleging that the collection letter it sent her violated the
Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C § 1692 et seq. Doc. 1-1. After NCB
removed the suit to federal court, Doc. 1, the court ordered
Williams to show cause why the suit should not be dismissed
as precluded by the judgment in a materially identical suit,
Williams v. NCB Management Services, Inc., No. 16 C
9322 (N.D. Ill.) (Shadur, J.). Doc. 7. All docket citations
to follow are from the first case.
first case, Judge Shadur granted NCB's motion to dismiss
for lack of standing under Rule 12(b)(1); as Judge Shadur
explained, because Williams, who had recently emerged from
bankruptcy, had not listed her FDCPA claim on her schedule of
assets, her FDCPA claim remained the property of the
bankruptcy estate. Doc. 27 at 2-3; see Morlan v.
Universal Guar. Life Ins. Co., 298 F.3d 609, 618 (7th
Cir. 2002) (holding that, because the plaintiff “did
not list his … claim on the schedule, …
abandonment was not authorized by [11 U.S.C. §] 554(c),
” and that “[p]roperty not abandoned under
[§ 554] remains property of the debtor's
estate”). Judge Shadur noted that the dismissal was
“without prejudice” and added that “under
Rule 59(e) you have got 28 days to come back in.” Doc.
27 at 2.
reopening the bankruptcy case and amending her schedule of
assets to include the FDCPA claim, Williams moved on January
18, 2017 to “reopen” the FDCPA suit. Doc. 28.
Shadur continued the motion to give Williams an opportunity
to submit proof that the bankruptcy trustee had officially
abandoned the FDCPA claim. Doc. 30. The bankruptcy case
closed on March 29, thereby returning ownership of the FDCPA
claim to Williams. Doc. 33 at ¶ 15. But Williams did not
immediately inform the court that the bankruptcy case had
closed, and on April 4, Judge Shadur denied her motion to
It has been 2-1/2 months since plaintiff … moved to
reopen this action … . Because considering any such
reopening necessarily depended on a return to the Bankruptcy
Court so that appropriate steps could be taken to enable
Williams to proceed with the case, on January 27 this Court
… continued Williams' motion generally to enable
her to go before the Bankruptcy Court for that purpose. More
than two months have elapsed since then, and Williams'
counsel has done nothing to bring her case back to life in
this District Court. Accordingly Williams' motion to
reopen … is denied.
days later, Williams moved for reconsideration of the denial
of her motion to reopen. Doc. 33. Judge Shadur observed that
he would not have denied the motion to reopen had he known
that the bankruptcy case had closed, but he denied the
reconsideration motion as untimely under Rule 59(e). Doc. 37;
see Fed. R. Civ. P. 59(e) (“A motion to alter
or amend a judgment must be filed no later than 28 days after
the entry of the judgment.”).
consequence of the denial of Williams's motion to reopen,
and also of her motion to reconsider the denial of the motion
to reopen, was to leave Judge Shadur's original judgment
in place: a dismissal for lack of standing. Such a dismissal
is without prejudice. See Lewert v. P.F. Chang's
China Bistro, Inc., 819 F.3d 963, 969 (7th Cir. 2016)
(“The district court here dismissed the plaintiffs'
claims for lack of subject-matter jurisdiction, which is a
dismissal without prejudice.”); Remijas v. Neiman
Marcus Grp., LLC, 794 F.3d 688, 690 (7th Cir. 2015)
(“Where federal subject matter jurisdiction does not
exist, federal courts do not have the power to dismiss with
prejudice.”) (internal quotation marks omitted). This
allowed Williams to refile the suit if and when she acquired
standing. See Dupuy v. McEwen, 495 F.3d 807, 810
(7th Cir. 2007) (“[D]ismissal without prejudice
… allows the suit to be refiled … .”).
Williams had just walked away from the case after Judge
Shadur dismissed it for lack of standing, there would have
been no question that she was entitled to file a new suit
after acquiring standing upon a change of circumstances.
See Granger v. Rauch, 388 F. App'x 537, 544 (7th
Cir. 2010) (permitting a case that was refiled after an
initial dismissal for improper venue to go forward). That she
unsuccessfully (and unnecessarily) attempted to revive the
suit with a motion to reopen and then a motion to reconsider,
rather than simply filing a new suit, does not alter the
analysis. The only reason Williams's suit was dismissed
was that she did not show that she had standing to pursue her
FDCPA claim. Judge Shadur was evidently finished waiting for
Williams to provide evidence supporting her motion to reopen,
but that did not transform the dismissal without prejudice
for lack of standing into a dismissal with prejudice. Given
that the factual circumstances bearing on standing have
changed since Judge Shadur dismissed the suit for lack of
standing, Williams was free to refile her FDCPA claim,
subject to any statute of limitations defense that might have
arisen in the interim.
foregoing reasons, the order to show cause is discharged, and
this suit will not be dismissed as ...