Ghawi v. Law firm Howard L. Schiff, P.C. et al

Filing 96

RULING (see attached) denying in large part 78 Defendant Citibank's Motion for Protective Order; granting in part 80 Plaintiff's Motion to Compel; granting in part and denying in part 85 Plaintiff's Motion for Compliance by the HLS Defendants; and granting in part 90 Plaintiff's Second Motion to Compel. Signed by Judge Joan G. Margolis on 5/18/2015. (Watson, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
-----------------------------------------------------X
NABIL GHAWI
:
:
v.
:
:
LAW OFFICES OF HOWARD LEE
:
SCHIFF P.C., JEANINE M. DUMONT,
:
HEATH A. TIBERIO, REBECCA JADACH,
:
QUANESHIA DAILEY-THOMPSON &
:
CITIBANK N.A.
:
------------------------------------------------------X

No. 3:13 CV 115(JBA)

DATE: MAY 18, 2015

RULING ON DEFENDANT CITIBANK'S MOTION FOR PROTECTIVE ORDER (Dkt. #78),
PLAINTIFF'S MOTION TO COMPEL TO RESPOND TO DISCOVERY ON
CITIBANK (Dkt. #80), PLAINTIFF'S MOTION FOR ORDER OF COMPLIANCE
TO DISCOVERY (Dkt. #85), AND PLAINTIFF'S SECOND [MOTION]
TO COMPEL CITIBANK TO ADDRESS DISCOVERY (Dkt. #90)
On January 24, 2013, plaintiff Nabil Ghawi commenced this action (Dkt. #1),
appearing pro se, followed by an Amended Complaint, filed April 22, 2013 (Dkt. #11), and
followed by a second Amended Complaint, filed March 13, 2014 (Dkt. #59), alleging
violations of the following federal laws: Federal Debt Collection Practices Act ["FDCPA"], the
Telephone Communications Protection Act ["TCPA"], the Racketeer Influenced and Corrupt
Organizations Act ["RICO"], the Truth in Lending Act ["TILA"], and the U.S. Mail Fraud
Statute, as well as alleged violations of the following state laws: the Creditor's Collection
Practices Act ["CCPA"], the Truth in Lending Act ["Connecticut TILA"], laws restricting
telemarketing, laws governing telegraph, telephone, illuminating, power, and water
companies, and the Connecticut Unfair Trade Practices Act ["CUTPA"], and alleged violations
of the common laws of unconscionability and misconduct by defendants Law Offices of
Howard Lee Schiff, P.C. ["HLS"], HLS employees Jeanine M. Dumont, Heath A. Tiberio,
Rebecca Jadach, and Quaneshia Dailey-Thompson [collectively "the HLS Defendants"], and
alleged creditor Citibank, N.A. (Dkt. #1).

On December 1, 2014, U.S. District Judge Janet Bond Arterton dismissed plaintiff's
claims under TILA, the U.S. Mail Fraud statute, RICO, FDCPA, CCPA, Connecticut TILA, and
his claims for unconscionability and misconduct. 2014 WL 6885141, at *2, 6-9 (D. Conn.
Dec. 1, 2014); (see Dkts. ##60-62, 64). In addition, plaintiff's claims under the FDCPA and
CUTPA were dismissed as to defendant Citibank. 2014 WL 6885141, at *2, 5-6, 9. Thus,
the claims that remain in the case are FDCPA, 15 U.S.C. §§ 1692c(a)(1), 1692d(5) & (6),
1692e(10), and 1692g(b) as to the HLS Defendants; TCPA, 47 U.S.C. § 227(b) as to all
defendants; and CUTPA, CONN. GEN. STAT. § 42-110 et seq. as to the HLS Defendants. Id.
at *4-6, 9. On December 17, 2014, defendants filed their Answer and Affirmative Defenses.
(Dkt. #66).
Under the Scheduling Order, filed on January 13, 2015, by Judge Arterton (Dkt. #71),
all discovery is to be completed by July 30, 2015, and all dispositive motions are to be filed
by August 30, 2015. (Id.).
On March 18, 2015, defendant Citibank filed the pending Motion for Protective Order,
and brief and exhibits in support (Dkt. #78),1 and one week later, plaintiff filed a Motion to
Compel Citibank to Respond to Discovery (Dkt. #80), with exhibits in support. (Dkt. #83).2

1

Attached to defendant's brief are the following exhibits: copy of a Declaratory Ruling
issued by the Federal Communications Commission, released January 4, 2008 (Exh. 1); and copy of
plaintiff's Requests for Admissions, Interrogatories and Production, dated February 25, 2015 (Exh.
2).
2

The following exhibits (Dkt. #83) were filed as exhibits to plaintiff's Motion to Compel
Citibank to Respond to Discovery (Dkt. #80)(the exhibits are not labeled in a coherent manner):
plaintiff's Integrated Responses [to] Requests for Admissions, Interrogatories, and Requests for
Production from defendant HLS and the HLS employees, dated March 10, 2015 (Exh. A); copy of
letter from plaintiff to defense counsel, dated April 6, 2015 (Exh. A.1); copy of letter from plaintiff
to defense counsel, dated October 22, 2012 (although not labeled, Exh. B); and list of "Incoming
Calls From Citibank, NA" from November 19, 2010 to February 15, 2011 (Exh. C).

2

On April 13, 2015, plaintiff filed additional exhibits in support of his motion (Dkt. #86),3 and
next day, defendant Citibank filed a brief in opposition. (Dkt. #88).
On April 13, 2015, plaintiff also filed his Motion for Order of Compliance to Discovery
directed to the HLS Defendants, with exhibits in support. (Dkt. #85).4 Defendants have not
filed an objection.
On April 20, 2015, plaintiff filed his Second Motion to Compel Citibank to Respond to
Discovery, and Objection to Defendant's Opposition to Motion to Compel. (Dkt. #90). Ten
days later, defendants filed their brief in opposition (Dkt. #92), and on May 12, 2015,
plaintiff filed his reply brief.

(Dkt. #95).

The pending motions were referred to this

Magistrate Judge on April 1, 2015 (Dkt. #82), April 14, 2015 (Dkt. #87), and April 21, 2015
(Dkt. #91).

3

This docket entry consists of the following exhibits (again, the exhibits are not labeled in a
coherent manner): copy of Requests for Admissions, Interrogatories and Production served on
defendant Citibank, dated February 25, 2015 (Exh. P); another copy of letter from plaintiff to
defense counsel, dated October 22, 2012 (Exh. B1); another copy of the list of "Incoming Calls
From Citibank, NA" (Exh. C); copy of list of "Incoming Calls From HLS" from July 7, 2011 to January
18, 2012, and November 29 and December 18, 2014 (Exh. L); copy of a letter from plaintiff to "Mr.
Goldberg[,]" dated January 2, 2012 (Exh. M); and copy of a letter requesting issuance of summons
to Citibank, dated November 15, 2013 (Exh. R).
Defendant Citibank contends that "[p]laintiff . . . appears to be producing documents which
were requested by [HLS] in its discovery. None of these matters related to Citibank, N.A. or its
Motion for Protective Order." (Dkt. #88, at 3 n.1). Pursuant to FED. R. CIV. P. 5(d), discovery,
including "interrogatories, requests for documents, requests for admissions, and answers and
responses shall not be filed with the Clerk's Office except by order of the Court[,]" D. CONN. L. CIV.
P. 5(f)(1), and the "party seeking relief under any of the Federal Rules of Civil Procedure shall file
only the portion of the . . . interrogatory, request for documents or request for admissions that is
the subject of the dispute." D. CONN. L. CIV. P. 5(f)(2).
4

Attached to plaintiff's motion are four exhibits (again, not labeled in a coherent manner):
copy of Defendants' Responses to Requests for Admissions, Interrogatories and Requests for
Production, dated March 17, 2015 (Exh. O); copy of Declaratory Ruling issued by the Commissioner
of the Department of Banking on September 11, 2012 (Exh. Q); copy of correspondence from
defendant HLS to plaintiff, dated July 9, 2011 (Exh. E); copy of correspondence from plaintiff to
defendant HLS, dated July 15, 2011 (Exh. I); and copy of voicemail log from October 8, 2011 to
June 21, 2012 (Exh. N).

3

For the reasons stated below, defendant Citibank's Motion for Protective Order (Dkt.
#78) is denied in large part; plaintiff's Motion to Compel Citibank to Respond to Discovery
(Dkt. #80) is granted in part; plaintiff's Second [Motion] to Compel Citibank to Address
Discovery (Dkt. #90) is granted in part; and plaintiff's Motion for Compliance by the HLS
Defendants (Dkt. #85) is granted in part and denied in part.
I. DISCUSSION
A. DEFENDANT CITIBANK'S MOTION FOR PROTECTIVE ORDER (Dkt. #78),
PLAINTIFF'S MOTION TO COMPEL CITIBANK TO RESPOND TO DISCOVERY (Dkt.
#80), AND SECOND [MOTION] TO COMPEL CITIBANK TO ADDRESS DISCOVERY
(Dkt. #90)
In its Motion for Protective Order, defendant Citibank contends that it is no longer a
defendant in this case as Judge Arterton dismissed all claims under FDCPA and CUTPA
against Citibank, the remaining TCPA claim "as to all [d]efendants" does not include
allegations directed to Citibank, and there are no claims that Citibank is liable for the conduct
of HLS in the TCPA count. (Dkt. #78, Brief at 3). In his Motion to Compel Citibank to
Respond to Discovery (Dkt. #80), and in his Second Request to Compel Citibank to Address
Discovery (Dkt. #90), plaintiff contends that Citibank is a named defendant, and Citibank
must make specific objections to the requested discovery. (Dkt. #80, at 9; Dkt. #90, at 23).5

5

In its brief in opposition to plaintiff's Motion, defendant Citibank reiterates its contentions
made in support of its Motion for Protective Order, and rebuts plaintiff's claim that he has alleged
that all of the defendants are "working in concert and are in agreement[,]" contends that
defendant Citibank's responses "may reveal other violations" is irrelevant because pursuant to the
governing Scheduling Order in this case (see Dkt. #71), no additional claims may be added at this
time, and asserts that plaintiff has admitted that "defendant" or "defendants" is defined as
"equivalent to 'HLS' . . . which is a distinct separate entity from Citibank, N.A." (Dkt. #88, at 2; see
also Dkt. #92). In response, plaintiff contends that defendant HLS cannot respond on behalf of
defendant Citibank (Dkt. #95, at 6-7), and that plaintiff "did not think it necessary to serve each
single [d]efendant separate discovery. . . . A signature of acknowledgment that [d]efendants are in
agreement with the responses is sufficient." (Dkt. #95, at 7).

4

In her Ruling on the Motion to Dismiss, Judge Arterton held that plaintiff has
"asserted sufficient facts to state a claim under [TCPA, 47 U.S.C.] § 227(b)" against all of the
defendants[.]" 2014 WL 6885141, at *4 (emphasis added). In so holding, Judge Arterton
relied on the FCC Ruling addressing plaintiff's claim in this case. Id.; (see Dkt. #78, Exh. 1).
Specifically, Judge Arterton held:
the FCC has been clear that "a creditor on whose behalf an autodialed or
prerecorded message call is made to a wireless number bears the
responsibility for any violation of the Commission's rules. Calls placed by a
third party collector on behalf of that creditor are treated as if the creditor
itself placed the call."
Id. quoting In the Matter of Rules and Regulations Implementing the TCPA, 23 FCC Red. 559,
565, ¶ 10 (Jan. 4, 2008). Defendant Citibank is the creditor on whose behalf HLS made the
calls to plaintiff. Defendant Citibank did not file a Motion for Reconsideration of this portion
of Judge Arterton's Ruling, but yet now seeks to collaterally challenge such holding through
the filing of this Motion for Protective Order.

Defendant's arguments as to whether

defendant Citibank remains a defendant in this case are misplaced at this juncture.
Defendant Citibank also contends that "even if we assumed that Citibank N.A. is a
party to this action, the discovery is overly broad[]" as plaintiff seeks "information well
beyond the TCPA claim[.]" (Dkt. #78, Brief at 4).6 In his Second Request to Compel Citibank

As the Federal Rules of Civil Procedure provide, "interrogatories must be answered: (a) by
the party to whom they are directed; or (B) if that part is a public or private corporation, . . . by
any officer or agent, who must furnish the information available to the party." FED. R. CIV. P.
33(b)(1). Similarly, a "party may serve on any other party a written request to admit[,]" FED. R.
CIV. P. 36(a)(1), and a "party may serve on any other party a written request . . . to produce and
permit the requesting party . . . to inspect [or] copy . . . items in the responding party's
possession, custody, or control[.]" FED. R. CIV. P. 34(a)(1). Thus, plaintiff must serve each
defendant the discovery to which he seeks responses, and each defendant shall respond in
accordance with the Federal Rules of Civil Procedure.
6

However, defendant, who bears the burden of establishing that the discovery is overly
broad, does not specify which requests it claims are overly broad. See Cole v. Towers Perrin
Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009)("The party resisting discovery bears the

5

to Address Discovery, plaintiff asserts that "[m]inimally[,] [Citibank] should admit or deny
TCPA related [i]nquiries[.]" (Dkt. #90, at 1; see also Dkt. #95, at 3). This Court agrees, as
the TCPA claim against all defendants remains in the case. Therefore, on or before June
5, 2015, defendant Citibank shall respond to all Requests for Admission, Interrogatories,
and Requests for Production that relate to plaintiff's TCPA claims, and for the remaining
discovery, shall articulate its objections thereto. To the extent that plaintiff disagrees with
defendant Citibank's designation of which discovery requests relate to the TCPA claims
versus which ones do not, he is, of course, free to file a renewed Motion to Compel.
B. PLAINTIFF'S MOTION FOR COMPLIANCE BY DEFENDANT HLS (Dkt. #85)
In this motion, plaintiff seeks an order to HLS to comply "by responding in good faith
to discovery[,]" and the "discovery has to be addressed and signed by each individual named
in the suit[]" as the "discovery was addressed to each individual[ly]" named defendant. (Dkt.
#85, at 1-2).7 Defendant HLS failed to file a brief in opposition to plaintiff's motion.
As discussed above, as the Federal Rules of Civil Procedure provide, "interrogatories
must be answered: (a) by the party to whom they are directed; or (B) if that party is a public
or private corporation, . . . by any officer or agent, who must furnish the information
available to the party." FED. R. CIV. P. 33(b)(1). Similarly, a "party may serve on any other
party a written request to admit[,]" FED. R. CIV. P. 36(a)(1), and a "party may serve on any
other party a written request . . . to produce and permit the requesting party . . . to inspect
[or] copy . . . items in the responding party's possession, custody, or control[.]" FED. R. CIV.

burden of showing why discovery should be denied.")(citation omitted).
7

While the caption of the pending motion mentions Defendant HLS only, the discovery
requests were directed to all the HLS Defendants collectively, and the text of the motions discuses
all of them as well.

6

P. 34(a)(1). Thus, plaintiff may serve each defendant the discovery to which he seeks
responses, and if so served, each defendant shall then respond in accord with the Federal
Rules of Civil Procedure. However, in this case, plaintiff served all the HLS Defendants in one
discovery request.
In his motion, plaintiff objects to each and every one of defendants' responses to the
Requests for Admissions, Interrogatories, and Requests for Production. (Dkt. #85, at 2-13;
see id., Exh. O). The Federal Rules of Civil Procedure permit liberal discovery, allowing
parties to obtain discovery regarding any non-privileged matter that is relevant to a claim or
defense involved in the pending litigation. FED. R. CIV. P. 26(b)(1). A party may object to
a request if it is overly broad or unduly burdensome, but it "must do more than simply intone
the familiar litany that the [request is] burdensome, oppressive, or overly broad." Hartford
Roman Catholic Diocesan Corp. v. Interstate Fire & Cas. Co., No. 3:12 CV 1641(JBA), 2015
WL 164069, at *6 (D. Conn. Jan. 13, 2015)(citation & internal quotations omitted); Sullivan
v. StratMar Sys., Inc., 276 F.R.D. 17, 19 (D. Conn. 2011)(citation & internal quotations
omitted). Rather, the burden is on the party objecting to the discovery to "demonstrat[e]
specifically how, despite the broad and liberal construction afforded the federal discovery
rules, each request is not relevant or how each question is overly broad, burdensome or
oppressive by submitting affidavits or offering evidence revealing the nature of the burden."
Hartford Roman Catholic Diocesan Corp., 2015 WL 14069, at *6 (citation omitted). Pursuant
to Rule 37(a)(2) of the Federal Rules of Civil Procedure, a party seeking discovery "may
move for an order compelling disclosure or discovery[,]" and such motion "must include a
certification that the movant has in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an effort to obtain it without court

7

action."8
1. REQUESTS FOR ADMISSIONS
After a careful review of the HLS Defendants' responses to plaintiff's twenty-four
Requests for Admissions, the Court finds that although defendants objected to most of
plaintiff's Requests for Admissions, without waiving such objections, defendants also provided
sufficient responses to all requests except No. 2. (Dkt. #85, Exh. O, at 1-7). The HLS
Defendants shall provide a supplemental response to Request for Admissions No. 2 on or
before June 5, 2015. (See also Dkt. #85, at 2-8).
2. INTERROGATORIES
Similarly, after a careful review of defendants' responses to plaintiff's sixteen
Interrogatories (id., Exh. O, at 7-11), the Court finds that, for the reasons explained above,
defendants' response to Interrogatory No. 1 is sufficient as plaintiff did not serve discovery
on each of the individual defendants (id. at 7). Defendants' responses to Interrogatories
Nos. 2, 3, 5, 11, 12,9 13, 14, 15, and 16 (id. at 7-8, 9-11) are sufficient or their objections
are well taken. Plaintiff's Interrogatories No. 6, 8, 9, 10 are overly broad in time and content
(id. at 8-9), and thus on or before June 5, 2015, plaintiff shall serve more narrowly
tailored discovery requests.
In contrast, plaintiff is entitled to an answer with respect to Interrogatory No. 4 (id.
at 8), to the extent that this information is not already in plaintiff's possession, on or before
June 5, 2015. As to Interrogatory No. 7 (id. at 8), plaintiff is entitled to a response with

8

As an initial matter, plaintiff has failed to attach a certification of his good faith effort to
confer with defense counsel before filing this motion.
9

Plaintiff argues that he seeks this information as it relates to a state court action with
these defendants. (Dkt #85, at 9). That action is not pending before this Court and plaintiff's
attempt to seek discovery for his state court action through this federal action is misplaced.

8

respect to the dates and times when telephone calls where made to plaintiff but not with
respect to the model and supporting system used; the HLS Defendants shall respond on or
before June 5, 2015. (See also Dkt. #85, at 8-10).
3. REQUESTS FOR PRODUCTION
Lastly, after a careful review of defendants' responses to all twenty-six Requests for
Production (Dkt. #85, Exh. O, at 11-18), the Court finds that defendants' responses to
Requests for Production Nos. 1, 2, 3, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22,
23, 24, 25 and 26 are sufficient or defendants' objections are well-taken. (Id. at 11-18).
In response to Request for Production No. 4, the HLS Defendants provided "some of
those documents" (id. at 12); to the extent that more documents exist and such documents
are not already in plaintiff's possession, the HLS Defendants shall produce such responsive
documents on or before June 5, 2015. With respect to Request for Production No. 6 (id.
at 13), plaintiff is entitled to any documents showing his consent to receive telephone calls
on his cell phone, but not customers in general; the HLS Defendants shall respond on or
before June 5, 2015. Similarly, consistent with this Court's ruling regarding Interrogatory
No. 4, on or before June 5, 2015, the HLS Defendants shall respond to Request for
Production No. 7 (id.). Lastly, with respect to Request for Production No. 21 (seeking "[a]ll
documents relating to the maintenance by defendant of policies, practices, or procedures
adapted to avoid calling persons who did not consent, or revoked consent, to be called on
their cellular telephones[]"), the HLS Defendants contend that such information is
confidential and proprietary but will agree to produce these policies if plaintiff agrees to a
confidentiality agreement with respect to the contents of the agreement. (Id. at 17).
Therefore, on or before June 5, 2015, the HLS Defendants shall submit to plaintiff a
confidentiality agreement with respect to the contents of the responses to Requests for
9

Production No. 21.
4. SUMMARY
Thus, plaintiff's Motion for Compliance by the HLS Defendants (Dkt. #85) is granted
as to Request for Production No. 2 but is denied as to the other twenty-three requests;
is granted as to Interrogatory No. 4, is granted in part with respect to Interrogatory
No. 7, is denied without prejudice to renew with respect to Interrogatories Nos. 6, 8, 9 and
10, and is denied with respect to Interrogatories Nos. 1, 2, 3, 5, 11, 12, 13, 14, 15 and 16;
and is granted as to Request for Production No. 7, is granted in part with respect to
Requests for Production Nos. 4, 6 and 21, and is denied with respect to Requests for
Production Nos. 1, 2, 3, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25 and
26.
II. CONCLUSION
For the reasons stated above, defendant Citibank's Motion for Protective Order (Dkt.
#78) is denied in large part; plaintiff's Motion to Compel Citibank to Respond to Discovery
(Dkt. #80) is granted in part; plaintiff's Second [Motion] to Compel Citibank to Address
Discovery (Dkt. #90) is granted in part; and plaintiff's Motion for Compliance by the HLS
Defendants (Dkt. #85) is granted in part and denied in part.
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the
standard of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a), 6(e) & 72;
and Rule 72.2 of the Local Rules for United States Magistrate Judges. As such, it is an order
of the Court unless reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within
fourteen calendar days after service of same); FED. R. CIV. P. 6(a), 6(e) & 72; Rule
72.2 of the Local Rules for United States Magistrate Judges, United States District Court for
10

the District of Connecticut; Small v. Secretary, H&HS, 892 F.2d. 15, 16 (2d Cir. 1989)(failure
to file timely objection to Magistrate Judge’s recommended ruling may preclude further
appeal to Second Circuit).
Dated at New Haven, Connecticut, this 18th day of May, 2015.

/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge

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