The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER DENYING PLAINTIFF'S MOTION TO ALTER ORDER OF DISMISSAL OR CERTIFY QUESTION
Before the Court is plaintiff Bonnie Delorme's "Motion to Alter Order of Dismissal of Count I Usury or Alternatively Seeking Certification of Question of State Law to the Supreme Court of the State of North Dakota" filed on May 23, 2012. See Docket Nos. 66 and 69. The Defendants filed responses in opposition to the motion on June 11, 2012. See Docket Nos. 71 and 73. For the reasons explained below, the motion is denied.
On May 8, 2012, the Court issued an "Order Denying Plaintiff's Motion for Class Certification and Denying Plaintiff's Motion for Partial Summary Judgment." See Docket No. 65. The Court dismissed Count I of Delorme's complaint, usury. The Court also dismissed Count III, violation of the North Dakota Retail Installment Sales Act, as to defendants RW Enterprises and Randy Westby.
On May 23, 2012, Delorme filed a "Motion to Alter Order of Dismissal of Count I Usury or Alternatively Seeking Certification of Question of State Law to the Supreme Court of the State of North Dakota." See Docket No. 66. Delorme requests that the Court reverse its prior order and reinstate usury as a pending cause of action. In the alternative, she requests that the Court certify the following questions to the North Dakota Supreme Court:
a. Does a merchant meet the disclosure requirements of Chapter 51-13, N.D.C.C., when such a merchant charges a retail credit customer both a "300.00 loan fee" and a "$195.00 document preparation fee" but fails to include either such fee within the calculation and disclosure of the Annual Percentage Rate and Finance Charge? and;
b. May a retail merchant which fails to meet the disclosure requirements of Chapter 51-13, N.D.C.C., and which charges and collects a rate of interest in excess of that permitted by the State's usury limitations (Section 41-14-09, N.D.C.C.) be subject to the civil penalties afforded victims of usurious lending set forth in Chapter 47-14-10, N.D.C.C.?
The Defendants filed responses in opposition to the motion on June 11, 2012. See Docket No. 71 and 73. They contend Delorme has not presented any new arguments or evidence justifying an alteration or reversal of the Court's prior order. They also argue the motion to certify questions to the North Dakota Supreme Court should be denied as untimely because it was filed after Delorme suffered an adverse judgment.
A. MOTION TO ALTER ORDER OF DISMISSAL
Delorme requests that the Court alter its prior order and reinstate the usury cause of action. The Eighth Circuit Court of Appeals has instructed that when such a motion is directed at a non-final order, as is the case here, it should be construed as a Rule 60(b) motion. The Eighth Circuit has held that Rule 60(b) provides for "extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances." United States v. Young, 806 F.2d 805, 806 (8th Cir. 1987). A district court has "wide discretion" in ruling on a Rule 60(b) motion. Sellers v. Mineta, 350 F.3d 706, 716 (8th Cir. 2003). Rule 60(b) "authorizes relief based on certain enumerated circumstances (for example, fraud, changed conditions, and the like)." Broadway v. Norris, 193 F.3d 987, 990 (8th Cir. 1999). "It is not a vehicle for reargument on the merits." Id. (denying relief under Rule 60(b) when the movant "did nothing more than reargue, somewhat more fully, the merits of their claim . . . .").
Delorme makes the same arguments that she made in support of her motion for partial summary judgment: that Mandan Supply v. Steckly, 244 N.W.2d 798 (N.D. 1976) has been legislatively overturned and the contract between Delorme and Autos, Inc. fails to meet the disclosure requirements of Chapter 51-13 of the North Dakota Century Code. The Court finds that Delorme has not shown that exceptional circumstances exist which justify ...