United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Virginia M. Kendall United States District Judge.
Diane Rhone moves under Rule 60(b) for relief from the
Court's final judgment order on the parties'
cross-motions for summary judgment. Rhone's motion comes
to the Court after the case was remanded from the Court of
Appeals. Because Rhone failed to cross-appeal the judgment
from which she now seeks relief, the issue was waived and is
not within the scope of remand. For the reasons stated here,
Rhone's motion [Dkt. 97] is denied.
sued Medical Business Bureau, LLC (“MBB”) for
violating two provisions of the Fair Debt Collection
Practices Act (“FDCPA”)-Section 1692e, which
prohibits debt collectors from making “false
representations” about “the character, amount, or
legal status of any debt, ” and Section 1692f, which
prohibits debt collectors from collecting or attempting to
collect a debt using “unfair or unconscionable
means.” 15 U.S.C. §§ 1692e(2)(A), 1692f;
see also Rhone v. Med. Bus. Bureau, LLC, No. 16 C
2512, 2017 WL 4875297, at *2-3 (N.D. Ill. Oct. 25, 2017)
(“Rhone I”), rev'd, 915
F.3d 438, 439 (7th Cir. 2019) (“Rhone
claims were based on the same conduct by MBB. Rhone received
physical therapy from the Illinois Bone and Joint Institute
(“IBJI”) in January and February 2013. IBJI
billed Rhone $134 per session. Rhone's insurance covered
a portion of the charge, leaving her with a $60 copay for
each session. Rhone did not pay her portion of the bills and
IBJI assigned the debt to defendant MBB for collection. MBB
eventually reported to Equifax that Rhone owes nine debts of
$60 each. See Rhone II, 915 F.3d at 439.
parties moved for summary judgment on both claims. See
Rhone I, 2017 WL 4875297, at *2-3. The parties did not
dispute that Rhone received physical therapy on nine separate
occasions or that she owed $540 total. Id. at *2.
The nine debts appeared on nine separate tradelines on
Rhone's Equifax credit report. Id. MBB argued
that IBJI presented it with nine separate debts for $60 each
and that it accurately reported those nine debts to Equifax.
Rhone argued that presenting her $540 debt as nine separate
$60 debts, resulting in nine separate trade-lines on her
Equifax credit report, misstated the character of the debt in
violation of Section 1692e. Id. Judge Der-Yeghiayan
agreed with Rhone and ruled in her favor on the Section 1692e
claim (granting Rhone's motion for summary judgment and
denying MBB's), but ruled in MBB's favor on the
Section 1692f claim (granting MBB's motion for summary
judgment and denying Rhone's). Id. at *2-3. As
to Section 1692f, Judge Der-Yeghiayan held that Rhone could
not base her claims under both Sections on the same conduct,
and that seeking relief for the same harm under both Sections
would result in a double recovery. Id. at *3. Judge
Der-Yeghiayan heard oral argument on the issue of statutory
damages and in open court awarded Rhone $1, 000 for
prevailing on the Section 1692e claim. See Dkt. 72.
During oral argument, counsel for Rhone stated that she was
not seeking to recover any actual damages resulting from
MBB's violation. Id. Though Judge
Der-Yeghiayan's order resolved all disputed matters
between the parties (other than attorney's fees and
costs) and the civil case was terminated, final judgment was
not entered. See Dkt. 70.
November 2017, MBB appealed the Court's decision in
Rhone's favor on the Section 1692e claim. Rhone
II, 915 F.3d at 439. The Court of Appeals initially
ordered the parties to submit memoranda regarding whether it
had jurisdiction over the appeal. See Rhone II, No.
17-3408 (7th Cir. 2017), Dkt. 4-9. The Court of Appeals then
ordered the parties to submit statements regarding whether
they intended to file a request with the district court for
“judgment . . . set out in a separate document”
under Federal Rule of Civil Procedure 58(d), presumably
because final judgment had not been entered. Id.
Dkt. 10, 13, 15. The parties filed such a request with the
district court on February 9, 2018, nearly four months after
Judge Der-Yeghiayan ruled on their summary-judgment motions.
See Dkt. 90. By that time, Judge Der-Yeghiayan had
retired from the bench and the Executive Committee had
ordered the case reassigned to this Court. See Dkt.
89. After finding that Judge Der-Yeghiayan's
summary-judgment order “disposed of all disputed
matters material to th[e] case, ” the Court entered
final judgment. Dkt. 94. MBB then advised the Court of
Appeals that final judgment had been entered. Rhone
II, No. 17-3408, Dkt. 16.
Court of Appeals then considered the merits of MBB's
appeal and reversed the district court's judgment,
holding that MBB did not misstate the character of
Rhone's debt because the credit report was
“factually correct, ” given that “Rhone
incurred nine debts of $60 each.” Rhone II,
915 F.3d at 439. The Court of Appeals explained that
reporting the debts separately did not misstate their
character under Section 1692e because “character”
refers to the kind of obligation (e.g., secured,
unsecured, subordinate, etc.), and not to whether
“amounts due for individual purchases from a single
merchant are stated separately or as a total.”
Id. at 439-440. (“[T]he number of transactions
between a debtor and a single merchant does not affect the
genesis, nature, or priority of the debt and so does not
concern its character.”) Rhone did not cross-appeal the
Court's grant of summary judgment in MBB's favor on
the Section 1692f claim, and that issue was not raised on
appeal in any way.
Rhone's Present Motion
that the case has been remanded back to this Court, Rhone
moves under Rule 60(b) for relief from the Court's
judgment in MBB's favor on the Section 1692f claim. Rhone
argues that the Court ruled in MBB's favor on the 1692f
claim solely because it had already ruled in her favor and
granted her relief on the 1692e claim and wanted to avoid a
double-recovery scenario- a decision that, according to
Rhone, did not determine the merits of her 1692f claim. Now
that the Court of Appeals has reversed the Court's 1692e
ruling, Rhone argues that there is no longer a valid basis
for the Court's 1692f ruling and equity demands that the
Court reconsider the merits of Rhone's 1692f claim.
motion presents a threshold question: what issues are open
for this Court's consideration on remand? Under the
“law of the case” doctrine, “[t]here are
two major limitations on the scope of a remand. First, any
issue that could have been but was not raised on appeal is
waived and thus not remanded.” United States v.
Husband, 312 F.3d 247, 250-51, n.3 (7th Cir. 2002)
(citation omitted); see also United States v.
Morris, 259 F.3d 894, 898 (7th Cir. 2001)
(“[P]arties cannot use the accident of remand as an
opportunity to reopen waived issues.”) The second
limitation, less relevant to Rhone's motion, holds that
“any issue conclusively decided by [the Court of
Appeals] is not remanded.” Husband, 312 F.3d
at 251. “The law of the case doctrine is a corollary to
the mandate rule and prohibits a lower court from
reconsidering on remand an ...