James McLean v. Ronald Ray
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:10-cv-00456-LO-TCB Copies to all parties and the district court/agency. [998896416].. [11-1544]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1544
JAMES L. MCLEAN; EDITH L. MCLEAN,
Plaintiffs – Appellants,
v.
RONALD A. RAY, Esquire; ECONOMOU, FORRESTER & RAY,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Liam O’Grady, District
Judge. (1:10-cv-00456-LO-TCB)
Argued:
May 16, 2012
Before AGEE and
Circuit Judge.
DIAZ,
Decided:
Circuit
Judges,
and
July 17, 2012
HAMILTON,
Senior
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Agee and Senior Judge Hamilton joined.
ARGUED:
Allen
Huberth
Sachsel,
Fairfax,
Virginia,
for
Appellants.
David John Gogal, BLANKINGSHIP & KEITH, PC,
Fairfax, Virginia, for Appellees. ON BRIEF: Michael L. Chang,
BLANKINGSHIP & KEITH, PC, Fairfax, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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DIAZ, Circuit Judge:
Edith and James McLean sued Ronald Ray, an attorney, and
his
law
firm,
Economou,
Forrester
&
Ray,
alleging
that
Ray
violated the Fair Debt Collections Practices Act in the course
of seeking to collect a debt the McLeans owed to his client.
Finding
the
McLeans’
granted
Ray’s
motion
claims
for
meritless,
summary
the
judgment
McLeans’ cross motion for summary judgment.
appealed.
district
and
court
denied
the
The McLeans timely
We affirm.
I.
A.
Edith McLean is a ninety-six-year-old widow.
Edith’s son,
James McLean, manages her affairs and finances under general and
medical
powers
facility
in
of
attorney.
Maryland,
Edith
Currently
twice
at
resided
nursing home facility in Arlington, Virginia.
a
at
medical
care
ManorCare,
a
Edith was first
admitted to ManorCare on July 30, 2006 and was discharged on
September 7, 2006.
Upon Edith’s first admission to ManorCare,
James signed a contract with the facility providing that the
McLeans would be liable for all costs (to include attorney’s
fees)
incurred
account.
upon
by
ManorCare
in
collecting
payment
on
the
The contract also provided that it would terminate
Edith’s
date
of
discharge;
2
however,
if
Edith
were
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readmitted within fifteen days of discharge, the contract would
continue in effect as of the date of readmission.
In
November
2007,
Ray
sued
Edith
in
Arlington
County
General District Court on behalf of ManorCare, to collect a debt
allegedly owed to ManorCare for services it rendered to Edith
during her first stay.
The parties resolved the matter and
ManorCare nonsuited the case.
Approximately twenty months after her first stay, Edith was
readmitted to ManorCare without signing a new contract.
disputes
again
arose
between
the
McLeans
and
Payment
ManorCare,
and
ManorCare again engaged Ray to attempt to collect the amounts it
claimed it was owed.
On March 25, 2009, while Edith was still a
resident at ManorCare, Ray mailed Edith a letter claiming that
she
owed
ManorCare
$15,814.44,
attorney’s fees, and costs.
plus
interest,
reasonable
Two days later, Ray sued Edith in
the Arlington County Circuit Court (the “Arlington Complaint”)
alleging that she failed to pay ManorCare for services rendered.
In
standard
preparing
collection
agreement,
and
an
the
Arlington
referral
itemized
form,
Complaint,
Ray
Edith’s
earlier
statement
pertaining
reviewed
to
a
residence
Edith’s
account, all of which he had received from ManorCare consistent
3
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with his normal practice before filing debt collection actions. 1
The
referral
sheet
stated
that
Edith
had
been
admitted
ManorCare on July 30, 2006 and remained in the facility.
to
Ray
noticed that the amount sought on the referral sheet did not
match the figures ManorCare provided on the itemized statement.
After consulting with ManorCare, Ray revised the draft complaint
to
state
a
reduced
amount
owed.
The
Arlington
Complaint,
however, also asserted--incorrectly it turns out--that Edith had
resided continuously at ManorCare since her initial admission in
July 2006, and therefore alleged a breach of the contract James
signed in connection with that admission.
Before Ray filed suit, his secretary called his attention
to the 2007 lawsuit that the parties had resolved.
Ray admitted
that he reviewed the file pertaining to the earlier matter in a
cursory fashion, concluding that the dated information was not
1
Ray admitted that he also customarily received a sworn
affidavit from his clients attesting to the amount sought, but
that he did not receive one from ManorCare in this instance.
Ray explained that he typically requests an affidavit to
facilitate the entry of a default judgment pursuant to Virginia
state court procedures. In this case, Ray explained that--given
the adversarial nature of the proceedings from an early stage-he had no reason to expect that the McLeans would default and
thus no practical need for the affidavit.
Moreover, the
district court found it undisputed that Ray “decided not to use
a supporting affidavit in the McLean matter because Ms. McLean
continued to reside at the facility, and Mr. Ray assumed that he
would need to amend the complaint prior to the entry of a final
judgment order to include claims for additional services.” J.A.
994-95.
4
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useful and that he had no reason to otherwise question the facts
provided by ManorCare with respect to the 2009 claim.
Edith
left
ManorCare
on
May
8,
2009.
In
the
months
following her departure, Ray exchanged several emails and phone
calls with the McLeans’ attorneys.
It was not until the end of
September, however, that the McLeans first asserted that the
2006 contract was no longer valid because of the twenty-month
lapse
between
Edith’s
discharge
readmission in April 2008.
in
September
2006
and
Ray responded that he would look
into the matter and “clean up” the lawsuit if he confirmed that
the 2006 contract no longer applied.
Ray
requested
Edith’s
file
from
his
ManorCare some time to retrieve it.
an
amended
complaint
(the
J.A. 561.
client,
To that end,
but
it
took
In the interim, Ray filed
“Arlington
Amended
Complaint”)
on
October 29, 2009 without striking the claim for attorney’s fees.
The Arlington Amended Complaint increased the ad damnum to
$70,147.67
to
encompass
services
rendered
to
Edith
from
the
filing of the initial Arlington Complaint until her discharge.
The Arlington Amended Complaint further alleged that Edith, by
accepting the benefit of the services ManorCare rendered to her,
implicitly obligated herself to pay ManorCare in quantum meruit
for their reasonable value.
The Arlington Amended Complaint
also continued to seek interest, and attorney’s fees and costs
based
on
the
2006
contract.
The
5
next
day,
Edith’s
counsel
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served
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and
an
filed
Answer
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and
Counterclaim,
pleading
as
a
defense that there was no written contract between the parties
and
providing
specific
dates
of
Edith’s
discharge
and
readmission to ManorCare.
By November 2009, Ray was able to confirm that Edith had
not
continuously
resided
at
ManorCare,
and
conceded
that
no
written contract existed to support a claim for attorney’s fees.
In
January
dismissing
2010,
the
the
parties
written
presented
contract
claim
and
an
agreed
granting
amend the suit to include an oral contract claim.
order
leave
to
Ray filed a
Second Amended Complaint, asserting claims for breach of an oral
contract
and
attorney’s
an
implied
fees,
and
contract,
seeking
dropping
judgment
in
the
claim
for
the
amount
of
$65,809.50.
B.
In the course of litigating the debt collection proceeding,
the
McLeans
requested
a
information.
request,
sought
list
discovery.
of
ManorCare
ManorCare
listing
the
Among
prepared
national
other
employees
a
list
headquarters
and
documents,
their
responsive
address
they
contact
to
and
the
phone
number as the contact information for several employees, and
submitted it to Ray.
contact
information
Ray noticed that the list was missing
for
two
ManorCare
6
employees,
which
he
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inserted
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before
forwarding
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the
discovery
response
to
the
McLeans.
While the debt collection action was pending, Ray filed a
separate
action
for
the
conservator for Edith.
warranted
by
James’s
including
his
appointment
of
a
guardian
and
Ray contended that this proceeding was
history
purported
of
failure
neglect
of
to
for
pay
Edith’s
her
needs,
care
and
residence at another nursing home, which ultimately resulted in
the termination of Edith’s residence agreement at that facility.
Ray admitted that recovering the debt owed to ManorCare was one
purpose for filing the guardianship proceeding, but that his
legitimate
actions.
concerns
for
Edith’s
welfare
also
motivated
his
Ray prosecuted the guardianship proceeding against the
McLeans for nearly three months after Edith left ManorCare, but
then nonsuited the action.
C.
The McLeans sued Ray and his law firm in federal district
court for violations of the Fair Debt Collections Practices Act
(“FDCPA”).
They
twice
amended
their
complaint;
the
second
amended complaint, the operative complaint before the district
court, initially contained twenty-four counts, twelve counts for
James and twelve for Edith, alleging the same violations of the
FDCPA
for
dismissed
each
plaintiff.
several
counts,
However,
including
7
the
McLeans
twelve
voluntarily
claims
that
the
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district court indicated were likely time-barred by the FDCPA’s
statute of limitations. 2
two
other
counts
The McLeans also voluntarily dismissed
alleging
that
Ray
violated
the
FDCPA
by
“instituting and/or continuing and prosecuting” the guardianship
proceeding, id. 27, which they argued Ray initiated “to bring
pressure on James, using the proceeding as a ‘club’ to induce or
threaten James to pay a claimed, but disputed, debt,” id. 23-24.
The district court thus had before it ten remaining counts
alleging that Ray violated the FDCPA by (1) seeking incorrect
amounts, seeking attorney’s fees, and failing to determine the
accuracy of ManorCare’s claim prior to signing and filing the
Arlington Amended Complaint, (2) falsely making a quantum meruit
claim “with no basis in fact,” (3) falsely representing that he
would not assert the 2006 contract as a basis for recovery when
amending
the
complaint,
and
(4)
providing
cross-moved
for
summary
a
false
discovery
response.
The
parties
district court granted in favor of Ray.
appealed,
challenging
the
award
of
judgment,
which
the
The McLeans timely
summary
judgment
and
a
discovery ruling by the magistrate judge.
2
On appeal, Ray argues that all of the claims are barred by
the FDCPA’s statute of limitations.
Because we conclude that
the McLeans’ claims fail on the merits, we need not address this
separate argument.
8
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II.
We review de novo a grant or denial of summary judgment,
applying
the
same
standard
applied
by
the
district
court.
Overstreet v. Ky. Cent. Life Ins. Co., 950 F.2d 931, 938 (4th
Cir.
1991).
Summary
judgment
is
appropriate
only
when
the
record shows “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
A district court considering a motion
for summary judgment “must view the evidence in the light most
favorable to the nonmoving party,” Unus v. Kane, 565 F.3d 103,
115 (4th Cir. 2009), and draw all inferences in favor of the
nonmovant,
Williams
v.
Griffin,
952
F.2d
820,
823
(4th
Cir.
1991).
III.
The
FDCPA
is
a
strict
liability
statute
that
prohibits
false or deceptive representations in collecting a debt, as well
as certain abusive debt collection practices. 3
3
Attorneys seeking
The prohibited practices include “any false deceptive, or
misleading representation or means in connection with the
collection
of
any
debt”;
15
U.S.C.
§
1692e,
“false
representation of the character, amount, or legal status of any
debt;” id. § 1692e(2)(A); “use of any false representation or
deceptive means to collect or attempt to collect any debt or to
obtain information concerning a consumer;” id. § 1692e(10); “use
[of] unfair or unconscionable means to collect or attempt to
collect any debt;” id. § 1692f, and “collection of any amount
(including any interest, fee, charge, or expense incidental to
the principal obligation) unless such amount is expressly
(Continued)
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the
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repayment
of
a
debt
on
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behalf
of
a
collectors within the ambit of the FDCPA.
514 U.S. 291, 292 (1995).
litigation
constitute
client
are
debt
Heintz v. Jenkins,
False statements in the course of
violations
of
the
act.
See
Sayyed
v.
Wolpoff & Abramson, 485 F.3d 226, 229 (4th Cir. 2007) (rejecting
the argument that an attorney debt collector was entitled to
immunity for his litigating activities).
contains
a
“bona
fide
error”
defense
The FDCPA, however,
that
absolves
a
debt
collector from liability for a violation if he can show by a
preponderance
of
the
evidence
that
“the
violation
was
not
intentional and resulted from a bona fide error notwithstanding
the maintenance of procedures reasonably adapted to avoid any
such error.”
15 U.S.C. § 1692k(c).
A.
The McLeans assert that Ray’s claims as to the amounts due
to ManorCare violated the FDCPA in several respects.
First,
they contend that Ray misrepresented the debt owed by improperly
requesting attorney’s fees despite the fact that the break in
Edith’s
stay
at
ManorCare
rendered
ManorCare to such fees inapplicable.
the
contract
entitling
On this point, the McLeans
argue first that Ray’s review of his own files--specifically,
authorized by the agreement creating the debt or permitted by
law;” id. § 1692f(1).
10
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the file pertaining to the 2007 lawsuit--should have alerted him
to the break in stay, and further that he was alerted to it by
the McLeans’ counsel.
Next, they contend that Ray violated the
FDCPA
payment
by
seeking
the
of
prejudgment
interest
in
the
complaint.
The McLeans further argue that the bona fide error defense
does not shield Ray because he knew the amounts claimed were
erroneous and did not maintain adequate procedural safeguards to
avoid such errors.
On the latter point, the McLeans argue that
Ray’s
of
dereliction
his
own
protocol--of
requesting
and
receiving a sworn affidavit from his clients attesting to the
amount of the claimed debt--establishes his failure to comply
with procedures for avoiding error.
In granting summary judgment in favor of Ray, the district
court--relying on our decision in Amond v. Brincefield, Hartnett
& Assocs., P.C., 175 F.3d 1013, 1999 WL 152555 (4th Cir. Mar.
22, 1999) (unpublished table decision)--determined that the bona
fide
error
defense
applied
to
absolve
Ray
of
liability.
Although by unpublished decision, this court in Amond affirmed
the district court’s finding that debt collector lawyers had no
reason to question the amount of debt they were attempting to
collect for their clients, stating that lawyers “cannot be held
liable for what appears to be an honest dispute regarding the
amount of the debt, so long as there exists a colorable factual
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basis for the higher amount claimed by their client.”
(quoting
the
district
court).
This
court
also
Id. at *2
rejected
the
Amond plaintiff’s argument that the FDCPA created a heightened
duty
of
investigation
collection activity.
for
lawyers
engaged
in
ordinary
debt
Id. at *3.
Noting that ManorCare had provided Ray a referral form, a
residence agreement, and an itemized bill for services, which
Ray
reviewed
concluded
claim.
(and
that
challenged),
there
was
a
the
district
colorable
basis
court
for
correctly
ManorCare’s
Addressing the McLeans’ argument that Ray would have
been alerted to the fact that Edith did not reside continuously
at ManorCare had he more carefully reviewed his own files, the
district court also correctly concluded that Amond permitted Ray
to rely on his client’s word. 4
As for the McLeans’ separate argument that Ray deliberately
asserted a false claim for attorney’s fees despite having been
put on notice by the McLeans’ attorneys that there was a break
in Edith’s stay at ManorCare, the district court found (and we
agree) that Ray was diligent in investigating the matter.
4
From
Like the district court, we credit Ray’s explanation for
why he did not insist on receiving a sworn affidavit from
ManorCare for the amount owed.
At bottom, our inquiry focuses
on whether the procedures Ray employed were reasonably adapted
to avoid error.
We are satisfied that they were, and that Ray
is thus entitled to the benefit of the bona fide error defense.
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the moment Ray was alerted to the contention that there was a
break
in
Edith’s
stay
that
rendered
the
attorney’s
fees
provision of the initial contract inapplicable, he diligently
investigated to confirm the truth of the assertion.
We also
agree with the district court that Ray amended the complaint to
remove the claim for attorney’s fees as soon as he was able to
confirm that the 2006 contract no longer applied.
The
district
court
also
correctly
rejected
the
McLeans’
allegation that Ray violated the FDCPA by seeking prejudgment
interest.
As the district court noted, Virginia law permits
plaintiffs to seek prejudgment interest, which is awarded at the
discretion of the trier of fact.
See, e.g., Upper Occoquan
Sewage Auth. v. Blake Constr. Co., 655 S.E.2d 10, 23 (Va. 2008)
(citing Va. Code Ann. § 8.01-382).
protest
that
purportedly
Ray
owed
sought
by
the
The McLeans nevertheless
prejudgment
McLeans
that
payable, as they had not yet been billed.
interest
were
not
on
yet
amounts
due
and
However, the district
court determined that “the complaint is fairly read as seeking
only pre-judgment interest on the amounts past due at the time
of judgment.”
J.A. 1001.
this score, as well.
We agree with the district court on
Further, any risk that ManorCare would
have been able to recover damages to which it was not entitled-i.e., prejudgment interest on amounts that were not yet due and
payable--is mitigated by the fact that a decision to award such
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interest in the first instance is determined at the discretion
of a presumably competent and reasonable trier of fact.
B.
The
McLeans
next
assert
that
the
quantum
meruit
claims
lacked a factual basis, and that the amount asserted therefore
violates the FDCPA.
McLeans’
In support, they cite Ray’s response to the
interrogatory
that
sought
the
basis
for
ManorCare’s
allegation that each charge represented the reasonable value of
the item or service ManorCare provided Edith.
explained
that
the
charges
were
“determined
Ray’s response
based
upon
the
reasonable value of the time or service charged, the charges for
such items by other facilities in the market and a cost basis
evaluation as determined by ManorCare in setting prices based on
its overall operating income and expenses.”
Id.
The McLeans contend that the FDCPA requires--at the time a
debt collector asserts a debt--an accounting of how the amount
was calculated.
to
constitute
According to the McLeans, Ray’s response fails
a
good
faith,
pre-suit
rationale
of
a
claimed
debt, because it is merely “a list of factors that will be
considered to support a later rationalization,” Appellants’ Br.
47, which they claim does not satisfy the requirements of the
FDCPA.
The McLeans’ position is unpersuasive, as they fail to cite
any authority for this proposition.
14
We agree with the district
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that
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Ray’s
response
Pg: 15 of 18
clearly
stated
the
basis
for
the
quantum meruit figure: “a reasonable value of the services, as
determined by the market, plus costs.”
J.A. 1001.
Further, we
agree with the district court that the McLeans have done no more
than suggest that the numbers “smell fishy,” id. 1002, which
does not satisfy their burden in opposing summary judgment.
C.
The McLeans also allege that Ray violated the FDCPA when he
falsely represented that he would not assert the 2006 contract
(the contract signed upon Edith’s first admission to ManorCare)
as a basis for recovery and for attorney’s fees when amending
the Arlington Complaint.
This allegation stems from a statement
Ray made in a sworn affidavit he submitted to the district court
that, before amending the complaint the first time, he “would
inquire with [ManorCare] regarding the applicability of the 2006
contract and . . . would clean up the lawsuit if [he] confirmed
that there was a problem with that part of the claim.”
Id. 561.
The McLeans interpret Ray’s statement as an unconditional
vow
to
amend
the
initial
complaint
to
remove
the
breach
written contract claim and the claim for attorney’s fees.
of
The
district court, however, correctly interpreted Ray’s statement
with the qualifier in context:
that Ray would “clean up the
lawsuit” if and when he confirmed the applicability of the 2006
contract,
and
not
that
he
made
15
an
unconditional
promise
to
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remove
the
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claim
for
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attorneys’
fees.
Several
obstacles--
including the fact that ManorCare had misplaced Edith’s file-prevented Ray from confirming the facts any sooner.
The record
shows that Ray amended the complaint to remove the claim for
attorney’s fees as soon as he was able to determine that the
2006
contract
did
not
support
it.
We
thus
agree
with
the
FDCPA
by
district court that this claim lacks merit.
D.
The
McLeans
also
allege
that
Ray
providing a false discovery response.
violated
the
According to the McLeans,
Ray falsely provided the ManorCare national headquarters address
and
phone
number
as
the
contact
information
for
several
ManorCare employees, when he knew that those employees were not
in fact based at the company’s Ohio headquarters.
As to this claim, the district court correctly noted that
there was neither factual nor legal support for the notion that
Ray made a “false statement” or “misrepresentation” within the
meaning of the FDCPA when he forwarded the list of employees
from
ManorCare
to
the
McLeans.
Assuming
that
Ray’s
action
constituted a “representation” or “means of collecting a debt,”
the district court nevertheless concluded that it was not false,
deceptive, or misleading, let alone “unfair or unconscionable”
as prohibited by the act.
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Again,
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contention
the
on
McLeans
appeal
legally incorrect.
court
that
that
that
no
the
authority
district
to
support
court’s
their
reasoning
is
To the contrary, we agree with the district
there
specifying
cite
Pg: 17 of 18
was
nothing
certain
wrong
ManorCare
or
dishonest
employees
could
about
be
Ray
reached
through the company’s headquarters.
E.
Finally,
entered
by
the
the
McLeans
seek
magistrate
to
judge
appeal
in
a
this
discovery
case.
In
order
their
complaint, the McLeans asserted two separate FDCPA violations
premised on the view that Ray abused the separate guardianship
proceeding as a coercive debt collection tool.
In
support
discovery
McLean,
Edith
of
directing
at
L.
all
Ray
times
McLean’s
propounded
their
claims,
to
admit
hereto
that
relevant,
affairs.”
interrogatories
the
Id.
and
McLeans
propounded
“Plaintiff
was
211.
requests
James
properly
In
L.
managing
Ray
production
for
response,
of
documents seeking information relating to James’s management of
Edith’s financial affairs.
When the McLeans refused to provide
the information, the magistrate judge granted Ray’s motion to
compel.
opted
to
Rather than comply with the order, however, the McLeans
dismiss
the
two
claims.
At
the
same
time,
they
objected to the magistrate judge’s order, contending that it was
an abuse of discretion and should be set aside.
17
The district
Appeal: 11-1544
court
Doc: 35
Filed: 07/17/2012
overruled
the
Pg: 18 of 18
objection,
finding
that
“the
information
sought by Defendants is plainly relevant to Plaintiffs’ claims .
. . [and] Defendants are entitled to develop their response to
Plaintiffs’
allegations
documents.”
through
discovery
of
all
relevant
Id. 388.
On appeal, the McLeans argue that the magistrate judge and
the district court erred in ordering the McLeans to disclose
Edith’s assets.
They ask us to reverse the district court’s
order and to remand the case with instructions to reinstate the
two counts alleging violations of the FDCPA pertaining to the
guardianship claims.
We conclude, however, that this assignment of error is now
moot,
given
that
the
McLeans
elected
rather than comply with the order.
to
dismiss
the
claims
In any event, we discern no
error, as we agree with the district court that the discovery
was plainly relevant to the issues in the case.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
18
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