United States District Court 

for the 

Southern District of Florida 

Ray F. Bueno, Plaintiff,

v. 

University of Miami, and others, 

Defendants.

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Civil Action No. 22-22831-Civ-Scola 

Order Denying Motion for Reconsideration 

This matter is before the Court on the Plaintiff, Ray F. Bueno’s (“Bueno”) 

motion for reconsideration. (ECF No. 75.) Bueno seeks reconsideration of the 

Court’s order dated April 26, 2023, in which the Court granted the Defendant, 

the University of Miami’s (the “University”) motion to dismiss and dismissed 

Bueno’s claims against the University with prejudice. (ECF No. 72.) The 

University filed a response opposing the motion for reconsideration. (ECF No. 

77.) Bueno did not file a reply, and the time to do so has passed. After careful 

consideration of the motion, the record, and the relevant legal authorities, the 

Court denies Bueno’s motion. (ECF No. 75.) 

1. Legal Standard 

Rule 59(e) permits a motion to alter or amend a judgment, but only in 

limited circumstances—where there is “newly-discovered evidence or manifest 

errors of law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) 

(quotation omitted). Considering such a circumscribed purpose, “[a] Rule 59(e) 

motion cannot be used to relitigate old matters, raise argument or present 

evidence that could have been raised prior to the entry of judgment.” Id. 

(cleaned up). As stated by this Court: 

It is an improper use of the motion to reconsider to ask the Court to 

rethink what the Court already thought through—rightly or wrongly. 

The motion to reconsider would be appropriate where, for example, 

the Court has patently misunderstood a party, or has made a 

decision outside the adversarial issues presented to the Court by the 

parties, or has made an error not of reasoning but of apprehension. 

A further basis for a motion to reconsider would be a controlling or 

significant change in the law or facts since the submission of the 

issue to the Court. Such problems rarely arise and the motion to 

reconsider should be equally rare. 

Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992) 

(Hoeveler, J.) (cleaned up). For these reasons, “reconsideration of a previous 

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order is an extraordinary remedy to be employed sparingly.” Bautista v. Cruise 

Ships Catering & Serv. Int’l, N.V., 350 F. Supp. 2d 987, 992 (S.D. Fla. 2004) 

(Dimitrouleas, J.) (cleaned up).

2. Analysis 

The Court assumes the parties’ familiarity with the factual and 

procedural background of this case. Bueno seeks reconsideration for two 

reasons. First, Bueno argues that reconsideration is warranted because the 

Court misapplied the legal standard governing the University’s motion to 

dismiss for failure to state a claim. Bueno submits that the Court committed a 

clear error by failing to accept all the allegations in his amended complaint as 

true, failing to draw all reasonable inferences in his favor, and failing to review 

all the factual allegations in the light most favorable to him. Second, Bueno 

argues that reconsideration is also warranted because he has obtained new 

evidence in support of his claims. Specifically, Bueno points to the deposition 

of Vanessa Barbieri, one of the University’s employees who most frequently 

communicated with Bueno about the status of his loan. The Court addresses 

each argument in turn. 

First, Bueno’s argument that the Court misapplied the standard on the

motion to dismiss by failing to properly credit all the allegations in his 

amended complaint does not state a permissible ground for reconsideration. To 

be clear, Bueno does not argue that the Court committed a manifest error of 

law or that it patently misunderstood or misapprehended his pleading. (See 

generally Mot. 2–3, ECF No. 75.) Instead, he takes issue with the result of the 

Court’s analysis of the allegations in his complaint. As a result, Bueno 

essentially raises the same arguments upon moving for reconsideration that he 

raised in his opposition to the University’s motion to dismiss. (See ECF No. 56.) 

Because Bueno’s argument as to the misapplication of the motion to dismiss 

standard merely seeks to relitigate old matters that have been previously raised 

and decided, it does not present a permissible basis for reconsideration, and 

the Court may properly reject it on this ground alone. See Smith v. Ocwen Fin., 

488 F. App’x 426, 428 (11th Cir. 2012). 

Even upon considering Bueno’s first argument on the merits, however, 

the Court still concludes that it does not warrant any modification of the 

Court’s order. In contending that the Court failed to properly credit all the 

allegations in his amended complaint, Bueno seems to forget that the Court is 

only required to accept well-plead facts. In other words, the Court is “not 

bound to accept as true a legal conclusion couched as a factual allegation.” See

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009); Thaeter v. Palm Beach Cty. Sheriff’s Office, 449 F.3d 

Case 1:22-cv-22831-RNS Document 83 Entered on FLSD Docket 08/08/2023 Page 2 of 5
1342, 1352 (11th Cir. 2006). After re-reviewing the allegations highlighted in 

Bueno’s motion, the case remains that he fails to plead any facts indicating an 

alleged inaccuracy in his credit report. In short, Bueno’s allegations all support

the point that the University promised to refrain from taking further action as 

to his account as of a particular date, presumably, March 2022. (See generally

Mot. 5–8, ECF No. 75.) But, as the Court explained in its order granting 

dismissal, at best, Bueno’s allegations “demonstrate[] that he has a legal 

dispute with the University over the absolution of his student loan debt[,]” and 

not that there is a “factual inaccuracy” in the University’s alleged report. (See

Order 4–5, ECF No. 72 (citing Hunt v. JPMorgan Chase Bank, Nat’l Ass’n, 770 

F. App’x 452, 458 (11th Cir. 2019)).) Bueno does not address this distinction at 

all in his request for reconsideration. 

Furthermore, Bueno’s motion also fails to raise any issue as to the 

Court’s determination that he did not plead sufficient facts demonstrating that 

the University qualifies as a furnisher of information under the FCRA, an 

alternative ground for granting dismissal. In its order, the Court explained, in 

this regard, that the amended complaint was deficient because, one, it ignored 

the Court’s prior order to supply more definite information as to the role of a 

third-party named “ECSI” in the debt-reporting process (even though the Court 

warned Bueno that failure to do so would result in dismissal) and, two, it 

created a factual inconsistency as to the real entity acting as the furnisher of 

information with regard to Bueno’s debt. (See id. 5–7.) Bueno does not address 

either of these conclusions convincingly in his motion for reconsideration. 

Bueno’s assertion that he “was not in a position . . . to add any additional 

context as to [] ECSI’s alleged role [] in the reporting process” is not taken in 

good faith considering the evidence, originally submitted by Bueno himself, 

that he has had communications with ECSI in the past. (See Compl. Ex. A, 

ECF No. 1-5.) Therefore, at a minimum, Bueno could have incorporated 

allegations as to the nature and purpose of those communications in his 

amended complaint. 

Second, the new evidence Bueno highlights does not merit 

reconsideration of the Court’s order either. As noted above, “a Rule 59(e) 

motion [cannot be used] to . . . present evidence that could have been raised 

prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 

408 F.3d 757, 763 (11th Cir. 2005) (cleaned up) (quoting Arthur v. King, 500 

F.3d 1335, 1343 (11th Cir. 2007)). Bueno contends that the March 28, 2023, 

deposition of Vanessa Barbieri offers new evidence not available at the time he 

filed the amended complaint in late December 2022. Critically, however, Bueno 

offers no explanation for why he was prevented from taking Barbieri’s 

deposition before he filed his amended complaint. The fact that Bueno took 

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almost three months after the University moved to dismiss his amended 

complaint to take Barbieri’s deposition does not, standing alone, mean that the

evidence raised therein was previously unavailable. The record shows that 

Bueno was on notice of Barbieri’s potential significance to these proceedings at 

least as of March 31, 2022 (see ECF No. 1-5), and of the University’s intention 

to seek dismissal at least as of October 20, 2022, when it filed its first motion 

to dismiss (ECF No. 18). See, e.g., Ferguson v. Dolphins, Civil Action No. 20-

24483-Civ-Scola, 2021 U.S. Dist. LEXIS 235202, at *12 (S.D. Fla. Dec. 8, 2021) 

(Scola, J.) (“While the information [Plaintiffs] present might have been 

previously unknown to them, they fail to explain why it was impossible for 

them to have discovered the information earlier.”). 

Besides, assuming that Bueno had good cause to delay Barbieri’s 

deposition until March 28, 2023, the Court did not issue its order granting the 

University’s motion to dismiss until almost a month later, on April 26, 2023. 

(See ECF No. 72.) In the intervening period, Bueno could have requested leave 

to supplement the record with Barbieri’s deposition, but he didn’t. See, e.g., 

Fellype v. Citibank, N.A., No. 19-23547-Civ-COOKE/GOODMAN, 2020 U.S. 

Dist. LEXIS 247521, at *4 n.1 (S.D. Fla. Nov. 6, 2020) (Cooke, J.) (noting the 

defendant could have requested leave to supplement the evidentiary record). 

Instead, he waited another month after the Court issued its dismissal order to 

raise the deposition in his motion for reconsideration. See, e.g., In re Chiquita 

Brands Int’l, Inc., No. 08-MD-1916, 2019 U.S. Dist. LEXIS 202965, at *86 (S.D. 

Fla. Nov. 22, 2019) (Marra, J.) (“Evidence discovered or known prior to 

issuance of the Court’s September 3, 2019 Order is not ‘new.’”). In short, 

because the Court has no explanation for why Bueno waited until March 2023 

to take Barbieri’s deposition, or for why he didn’t attempt to present the 

evidence raised therein prior to the dismissal of this action with prejudice, his 

suggestion that the deposition presents previously unavailable evidence is

wholly unconvincing. 

In any case, even if Bueno did show unavailability of the evidence raised 

in Barbieri’s deposition, said evidence would not alter the outcome of the 

Court’s analysis. For one, contrary to Bueno’s assertions, Barbieri’s statements

fail to establish anything other than the existence of a legal dispute over the 

absolution of Bueno’s student loan debt. Per the deposition excerpts cited by 

Bueno himself, Barbieri states only that Bueno’s loan cancellation “should be 

accepted” and that, if successful, no balance would be owed “to the University 

of Miami.” (Mot. 12–13, ECF No. 75 (emphasis added) (quoting V. Barbieri Dep., 

ECF No. 62-1).) Thus, nothing in these excerpts evidences the existence of a 

factual inaccuracy in Bueno’s report. Similarly, the deposition testimony Bueno 

cites to support his claim as to the University’s status as a furnisher of 

Case 1:22-cv-22831-RNS Document 83 Entered on FLSD Docket 08/08/2023 Page 4 of 5
information does nothing to clarify ECSI’s role in the debt-reporting process. 

Notably, however, a cursory review of Barbieri’s full deposition reveals that 

ECSI came up repeatedly and likely played a not-insignificant role in the 

process. (See generally V. Barbieri Dep., ECF No. 62-1.)

Finally, the Court’s denies Bueno’s alternative request that it reconsider 

its order by dismissing his amended complaint without prejudice so that he can 

plead allegations related to Ms. Barbieri’s testimony and conduct additional 

discovery. Because Bueno does not provide any other reason for seeking 

dismissal without prejudice, the Court interprets his request as one for leave to 

amend. However, Bueno fails to comply with Local Rule 15.1, which requires 

that a motion to amend “reproduce the entire pleading as amended and may 

not incorporate any prior pleading by reference.” S.D. Fla. L.R. 15.1. Moreover, 

where a party seeks leave to amend after the deadline to do so has passed, he 

must show “good cause” under Federal Rule of Civil Procedure 16(b) to obtain 

the right to amend. See Sosa v. Air Print Sys., Inc., 133 F.3d 1417, 1418 (11th 

Cir. 1998); Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good 

cause and with the judge’s consent.”). The standard set forth in Rule 16(b) 

“precludes modification [of the scheduling order] unless the schedule cannot 

‘be met despite the diligence of the party seeking the extension.’” See Sosa, 133 

F.3d at 1418 (quoting Fed. R. Civ. P. 16 advisory committee’s note). Only if 

“good cause” for an untimely amendment is shown under Rule 16(b), does Rule 

15(a)’s instruction, that leave should be freely given when justice so requires, 

come into play. See Fed. R. Civ. P. 15(a)(2). While the standard under Rule 

15(a) is lenient, still, “a motion to amend may be denied on numerous grounds 

such as undue delay, undue prejudice to the [opposing party], and futility of 

the amendment.” See Maynard v. Bd. of Regents, 342 F.3d 1281, 1287 (11th 

Cir. 2003) (citations omitted). Bueno’s motion to reconsider does not even cite 

to Rules 15(a) and 16(b), let alone make any effort to set forth the necessary 

showing of good cause. Accordingly, his request that the Court reconsider its 

order by dismissing his amended complaint without prejudice is denied. 

3. Conclusion 

For the reasons set out above, the Court denies Bueno’s motion for 

reconsideration. (ECF No. 75.)

Done and ordered, in Miami, Florida, on August 7, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge

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