Segura v. Monarch Recovery Management, Inc.

Filing 44

ORDER granting in part and denying in part 29 MOTION TO COMPEL THE DEFENDANT'S RESPONSES TO THE PLAINTIFF'S WRITTEN DISCOVERY. By Magistrate Judge Michael J. Watanabe on 11/28/12. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00853-REB-MJW
CAROLYN SEGURA,
Plaintiff,
v.
MONARCH RECOVERY MANAGEMENT, INC, a Pennsylvania corporation,
Defendant.

ORDER REGARDING
PLAINTIFF’S MOTION TO COMPEL THE DEFENDANT’S RESPONSES TO THE
PLAINTIFF’S WRITTEN DISCOVERY REQUESTS PURSUANT TO FED. R. CIV. P.
33, 34, 36 AND 37 (DOCKET NO. 29)

Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Plaintiff’s Motion to Compel the Defendant’s
Responses to the Plaintiff’s Written Discovery Requests Pursuant to Fed. R. Civ. P. 33,
34, 36 and 37 (docket no. 29). The court has reviewed the subject motion (docket no.
29), the response (docket no. 38) and the reply (docket no. 39). In addition, the court
has taken judicial notice of the court’s file and has considered applicable Federal Rules
of Civil Procedure and case law. The court now being fully informed makes the
following findings of fact, conclusions of law and order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties to this
lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to be
heard;

4.

That Plaintiff seeks an Order from this court compelling Defendant to

answer fully Plaintiff’s Interrogatories Nos. 1 through 8, inclusive, and 10
through 21, inclusive. Moreover, Plaintiff seeks an Order from this court
compelling Defendant to respond to Plaintiff’s Request for Production of
Documents Nos. 2, 3, 4, 5, 6, 8, 9, 11, 12, 13, 14, 15, 17, 18, and 19;
5.

That Rule 26(b)(1) of the Federal Rules of Civil Procedure defines the
scope of discovery as follows:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party’s claim or defense–including the existence, description,
nature, custody, condition, and location of any documents or
other tangible things and the identity and location of persons
who know of any discoverable matter. For good cause, the
court may order discovery of any matter relevant to the
subject matter involved in the action. Relevant information
need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible
evidence. All discovery is subject to the limitations imposed
by Rule 26(b)(2)(C).
Fed. R. Civ. P. 26(b)(1). However, “a party’s right to
obtain discovery of ‘any matter, not privileged, that is
relevant to the claim or defense of a party’ . . . may be
constrained where the court determines that the
desired discovery is unreasonable or unduly
burdensome given the needs of the case, the
importance of the issues at stake in the litigation, and
the importance of the proposed discovery in resolving
the issues.” Simpson v. University of Colo., 220
F.R.D. 354, 356 (D. Colo. 2004). “The Federal Rules
of Civil Procedure permit a court to restrict or preclude
discovery when justice requires in order to protect a
party or person from annoyance, embarrassment,
oppression, or undue burden or expense. . . .”
Id. See Fed. R. Civ. P. 26(b) and (c);

6.

That as to Plaintiff’s Interrogatory No. 1, I find that Defendant shall fully
answer Interrogatory No. 1 based upon Estate of Rice v. City and County
of Denver, Colorado, 2008 WL 2228702, 07-cv-01571-MSK-BNB (D. Colo.
May 27, 2008);

7.

That as to Plaintiff’s Interrogatory No. 2, I find that Defendant shall fully
answer Interrogatory No. 2 based upon Estate of Rice v. City and County

of Denver, Colorado, 2008 WL 2228702, 07-cv-01571-MSK-BNB (D. Colo.
May 27, 2008) and for those reasons as stated on the record by
Magistrate Judge Boland in a hearing held on October 31, 2012,
concerning Plaintiff’s Motion to Compel (docket no. 20, filed 10-04-12) in
the case of Gordon Howard v. Stellar Recovery, Inc., 12-cv-01207-RPMBNB, (docket no. 30). It should be noted that the Howard case, is also a
FDCPA case just like the case before this court;
8.

That as to Plaintiff’s Interrogatories Nos. 3, 8, 10, 14, 15, 16, 20, and
21, I find that Defendant shall fully answer these Interrogatories for those
reasons as stated on the record by Magistrate Judge Boland in a hearing
held on October 31, 2012, concerning Plaintiff’s Motion to Compel (docket
no. 20, filed 10-04-12) in the case of Gordon Howard v. Stellar Recovery,
Inc., 12-cv-01207-RPM-BNB, (docket no. 30);

9.

That as to Plaintiff’s Interrogatory No. 4, I find that Defendant’s answer
to such interrogatory is incomplete. Such answer does not address subparts “a” through “g”, inclusive, contained in this interrogatory;

10.

That as to Plaintiff’s Interrogatories Nos. 5 and 6, I find that
Defendant’s Objection should be sustained. This interrogatory seeks
information beyond the relevant time frame as plead in the Complaint.
Accordingly, no further response is required to be made by Defendant;

11.

That as to Plaintiff’s Interrogatory No. 7, I find that Defendant has
answered this interrogatory in part but has not fully answered this
interrogatory as to the type of computer being use, the manual used, and
the policies and procedures used by Defendant during the relevant time
frame as outlined in the Complaint;

12.

That as to Plaintiff’s Interrogatory No. 17, I find that Defendant’s answer
to such interrogatory is incomplete. Although Defendant has promised in
its answer to such interrogatory to investigate and supplement its
response, it appears to not have done so at this time;

13.

That as to Plaintiff’s Interrogatories Nos. 11, 12, 13, and 18, I find that
Defendant has fully answered these interrogatories and no further
answers are required;

14.

That as to Plaintiff’s Interrogatory No. 19, I find that Defendant’s answer
to such interrogatory is incomplete as to collector Reed A. Foster only.
Although Defendant has promised to make inquiry as to whether Mr.
Foster had any complaints and had promised to supplement its answer, it
appears to not have done so at this time;

15.

That as to Plaintiff’s Request for Production of Documents [RFP] Nos.

2, 3, 17, and 18, I find that Defendant’s Objections to RFP Nos. 2, 3, 17
and 18 are sustained. No further response to these RFPs is required by
Defendant;
16.

That as to Plaintiff’s RFPs 9, 13, and 14, I find that Defendant’s
Objections to these RFPs are overruled. Defendant shall fully respond to
these RFPs;

17.

As to Plaintiff’s RFPs 5, 6, 11, 12, 15, and, 19, I find that Defendant has
fully responded to these RFPs and therefore no further response is
required by Defendant; and

18.

As to Plaintiff’s RFPs 4 and 8, I find that Defendant shall respond to both
RFP 4 and 8. However, I further find that the scope of the responses by
Defendant to RFPs 4 and 8 shall be limited to “all of Defendant’s
representatives, employees, and/or agents who had telephone
conversation(s) with the Plaintiff during the relevant time frame as outlined
in the Complaint.”
ORDER

WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Plaintiff’s Motion to Compel the Defendant’s Responses to the
Plaintiff’s Written Discovery Requests Pursuant to Fed. R. Civ. P. 33, 34,
36, and 37 (docket no. 29) is GRANTED IN PART AND DENIED IN PART
as outlined below:

2.

That the Motion is GRANTED as to Plaintiff’s Interrogatories as follows:
(a)

As to Plaintiff’s Interrogatories Nos. 1, 2, 3, 8, 10, 14, 15, 16, 20,
and 21, Defendant shall fully answer these interrogatories on or
before December 14, 2012;

(b)

As to Plaintiff’s Interrogatory No. 4, Defendant shall answer this
interrogatory as to sub-parts “a” through “g”, inclusive, contained in
this interrogatory on or before December 14, 2012;

(c)

As to Plaintiff’s Interrogatory No. 7, Defendant shall answer this
interrogatory as to the type of computer being used, the manual
used, and the policies and procedures used by Defendant during
the relevant time frame as outlined in the Complaint on or before
December 14, 2012;

(d)

As to Plaintiff’s Interrogatory No. 17, Defendant shall answer this

interrogatory fully on or before December 14, 2012;
(e)

As to Plaintiff’s Interrogatory No. 19, Defendant shall answer this
interrogatory as to collector Reed A. Foster only on or before
December 14, 2012;

3.

That the Motion is DENIED as to Plaintiff’s Interrogatories Nos. 5, 6, 11,
12, 13, and 18;

4.

That the Motion is GRANTED as to Plaintiff’s RFPs Nos. 9, 13, and 14
and Defendant shall respond to RFP Nos. 9, 13, and 14 on or before
December 14, 2012;

5.

That the Motion is FURTHER GRANTED as to Plaintiff’s RFPs Nos. 4
and 8, as limited to all of Defendant’s representatives, employees, and/or
agents who had telephone conversation(s) with the Plaintiff during the
relevant time frame as outlined in the Complaint, and Defendant shall
respond on or before December 14, 2012; and

6.

That the Motion is DENIED as to Plaintiff’s RFPs Nos. 2, 3, 17, and 18;

7.

That the Motion is FURTHER DENIED as to Plaintiff’s RFPs. Nos. 5, 6,
11, 12, 15, and 19; and

8.

That each party shall pay their own attorney fees and costs for this motion
since I find, under these circumstances, an award of expenses would be
unjust.

Done this 28th day of November 2012.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE