Galle v. Nationstar Mortgage, LLC

Filing 59

ORDER granting in part and denying in part 55 the Joint Motion to Extend Discovery Cutoff; denying 56 Plaintiff's Motion to Compel Punitive Discovery Responses; denying 57 Plaintiff's Motion to Compel Responses to Plaintiff' ;s Interrogatories; denying 58 Plaintiff's Motion to Compel Responses to Plaintiff's Request for Production. The parties shall have up to and including June 20, 2017 to show cause in writing why the Court should find good cause to extend the discovery deadline unconditionally, and not for the limited purposes of rescheduling the deposition only. Signed by Magistrate Judge Carol Mirando on 6/13/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARCIA GALLE,
Plaintiff,
v.

Case No: 2:16-cv-407-FtM-38CM

NATIONSTAR MORTGAGE, LLC,
Defendant.
ORDER
This matter comes before the Court upon review of the Joint Motion to Extend
Discovery Cutoff (Doc. 55); Plaintiff’s Motion to Compel Punitive Discovery Responses
(Doc. 56); Plaintiff’s Motion to Compel Responses to Plaintiff’s Interrogatories (Doc.
57); and Plaintiff’s Motion to Compel Responses to Plaintiff’s Request for Production
(Doc. 58) filed on June 9, 2017.

Defendant opposes Plaintiff’s motions to compel.

Docs. 56 at 5, 57 at 23, 58 at 20.
I.

Background

On May 24, 2016, Plaintiff initiated this proceeding by filing a complaint
against Defendant.

Doc. 1.

With leave of the Court, Plaintiff amended her

complaint twice and filed a Second Amended Complaint and Demand for Jury Trial
(the “Second Amended Complaint”) on April 17, 2017, which includes a claim for
punitive damages.

Docs. 16, 17, 18, 49, 50.

The Second Amended Complaint

alleges that Defendant violated the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. §§ 1692 – 1692p, and the Florida Consumer Collection Practices Act

(“FCCPA”), sections 559.55 to 559.785 of the Florida Statutes.

Doc. 50 ¶ 2.

Specifically, Plaintiff alleges that Defendant violated section 559.72(9) of the Florida
Statutes and 15 U.S.C. §§ 1692e(2)(A), 1692e(10), and 1692f. Id. ¶¶ 35, 42, 48, 55.
Plaintiff is a resident of Collier County, and Defendant is a foreign limited liability
company operating in Texas.

Id. ¶¶ 4-5. Plaintiff alleges that Defendant is a debt

collector under the definitions of the federal and state statutes.

Id. ¶ 5.

According to the Second Amended Complaint, on July 14, 2008, Plaintiff filed
a voluntary Chapter 7 bankruptcy petition with this District’s bankruptcy court.
¶ 6.

Id.

Plaintiff states that the schedules filed with her bankruptcy petition included

a mortgage on real property owed to Countrywide Home Loans Servicing LP
(“Countrywide”).

Id. ¶ 7. Plaintiff alleges that she clearly indicated her intention

to surrender the mortgaged property, and Countrywide was included in the mailing
matrix filed with her bankruptcy petition. Id. ¶¶ 8-9.

Subsequently, on July 18,

2008, the Clerk of Court issued a written notice of filing and of the creditors’ meeting
to all parties on the master mailing matrix.

Id. ¶ 10.

Plaintiff claims that

Countrywide did not attend the creditors’ meeting, and the bankruptcy case
discharged Plaintiff’s debts including the mortgage loan owed to Countrywide.

Id.

¶¶ 11-13.
Plaintiff alleges that on or about May 1, 2013, Countrywide transferred
servicing of Plaintiff’s discharged mortgage loan to Defendant, which sent a notice of
transfer to Plaintiff.

Id. ¶ 14. Defendant also allegedly sent a loan statement dated

-2-

May 21, 2013, which stated that Plaintiff owed the discharged mortgage loan to
Defendant.

Id. ¶ 15.

Plaintiff claims that upon receiving the notice and the statement, Plaintiff filed
a lawsuit against Defendant for violating the discharge injunction under the federal
bankruptcy code.

Id. ¶ 16. Plaintiff argues that the parties amicably resolved that

proceeding by entering into a settlement agreement and filing a stipulation to dismiss
the proceeding with prejudice on May 26, 2014.

Id. ¶¶ 17-18.

As a material

condition of the settlement agreement, Defendant agreed to cease and desist any
further collection activity with the mortgage loan in dispute.

Id. ¶ 17.

Despite the settlement agreement, Plaintiff asserts that Defendant sent
informational statements demanding her payment on the discharged debt for over a
year.

Id. ¶ 19. Plaintiff claims that although her counsel sent a cease and desist

letter, Defendant continued to send statements to Plaintiff.

Id. ¶¶ 23-25. Plaintiff

argues that Defendant’s actions constitute violations of the FDCPA and the FCCPA.

Id. ¶ 29.
On June 16, 2016, Defendant filed a motion to dismiss Plaintiff’s complaint
(Doc. 1), which United States District Judge Sheri Polster Chappell denied.

Docs.

10, 14. On October 4, 2016, the Court entered a Case Management and Scheduling
Order (“CMSO”) setting the mediation deadline to April 27, 2017, the deadlines to
disclose expert reports for Plaintiff to May 5, 2017 and for Defendant to May 19, 2017,
the discovery deadline to June 9, 2017, the deadline for dispositive motions to July
14, 2017, and a trial term of November 6, 2017. Doc. 23 at 1-2.

-3-

Approximately one month prior to the discovery deadline, on May 5, 2017,
Plaintiff provided an Amended Notice of Taking Deposition (“Notice”) to Defendant,
seeking to depose Defendant’s corporate representative on June 6, 2017.

Doc. 52-1

at 2. In the Notice, Plaintiff proposed to examine twenty-three matters during the

Id. at 3-6.

deposition.

Plaintiff also demanded that Defendant bring eleven

categories of documents to the deposition.

Id. at 6-7. Defendant objects to nine

proposed topics for the deposition and requests to bring four types of documents.
Doc. 52 at 3-10.

On May 12, 2017, Defendant filed a motion for a protective order

based on its objections.

Doc. 52.

On May 31, 2017, the Court issued an Order

granting in part and denying in part Defendant’s motion, which resolved the
discovery disputes regarding the deposition.

Doc. 54 at 4-21. The Court ordered

that the parties conduct the June 6, 2017 deposition pursuant to the Order.

Id. at

21.
II.

The Joint Motion to Extend Discovery Cutoff (Doc. 55)

On the discovery cutoff date, June 9, 2017, the parties jointly filed a motion to
extend the discovery deadline to July 19, 2017.

Doc. 55.

The parties state that

Defendant’s counsel had a medical emergency and could not attend the deposition on
June 6, 2017.

Id. at 1. As a result, the parties seek to extend the discovery deadline

to July 19, 2017 in order to reschedule the deposition and accommodate any issues
arising therefrom.

Id. The parties’ motion, however, does not address the extended

discovery deadline’s impact on other CMSO deadlines, although the requested

-4-

discovery deadline will be five days after the deadline of July 14, 2017 for dispositive
motions.

Docs. 23, 55.

District courts have broad discretion when managing their cases in order to
ensure that the cases move to a timely and orderly conclusion.

Chrysler Int’l Corp.

v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002). Rule 16 requires a showing of
good cause for modification of a court’s scheduling order.

Fed. R. Civ. P. 16(b)(4).

“This good cause standard precludes modification unless the schedule cannot be met
despite the diligence of the party seeking the extension.”

Sosa v. Airprint Sys., Inc.,

133 F.3d 1417, 1418 (11th Cir. 1998) (internal quotations and citations omitted).

To

establish good cause, the CMSO in this matter states that “[t]he moving party must
show that the failure to complete discovery is not the result of lack of diligence in
pursuing discovery.”

Doc. 23 at 4.

Here, although this matter has been pending for approximately one year since
May 26, 2016, Plaintiff scheduled a deposition on June 6, 2017, three days before the
discovery deadline.

Doc. 55 at 1.

Despite having one year to conduct discovery,

however, the parties seek additional time to reschedule the deposition and to conduct

unlimited discovery because Defendant’s counsel was unavailable for the deposition
on June 6, 2017. Id. Given the length of time this case has been pending and the
Court’s Order resolving the parties’ disputes regarding the deposition, the Court finds
that Defendant’s counsel’s previous unavailability does not constitute sufficient good
cause to extend the discovery deadline unconditionally. Docs. 23 at 4; 54; 55 at 1.

-5-

Instead, the Court will direct the parties to show cause in writing why the
Court should find good cause to extend the discovery deadline unconditionally, and
not for the limited purposes of rescheduling the deposition only.

In the same

response, the parties must address the impact on the remaining CMSO deadlines of
conducting discovery after the deadline and the standard for good cause under Rule
16.

Doc. 23 at 4; see Sosa, 133 F.3d at 1418.
III.

Plaintiff’s Motions to Compel (Docs. 56, 57, 58)

Also on the discovery cutoff date of June 9, 2017, Plaintiff filed three motions
to compel Defendant’s responses to her discovery requests.

Docs. 56, 57, 58.

Plaintiff alleges that on October 18, 2016, she served her First Set of Punitive
Damage Discovery, First Set of Interrogatories, Requests for Production of
Documents, and Request for Admissions to Defendant.
2.

Docs. 56 at 2, 57 at 2, 58 at

After obtaining three extensions of time to respond, Defendant served its

responses to Plaintiff’s discovery requests on January 18, 2017. Docs. 56 at 2-3, 57
at 2-3, 58 at 2-3.
requests.

Defendant made various objections to Plaintiff’s discovery

Docs. 56 at 3, 57 at 3, 58 at 3.

After receiving Defendant’s objections, however, Plaintiff waited five months
to bring her discovery concerns before the Court.

Docs. 56 at 5, 57 at 23, 58 at 20.

Plaintiff’s counsel alleges that he conferred with the opposing counsel regarding the
disputed discovery requests on June 9, 2017, and filed the present motions to compel
on the same day.

Docs. 56 at 5, 57 at 23, 58 at 20.

-6-

The CMSO in this matter clearly states that “[u]pon receipt of objectionable
discovery, a party has a duty to seek relief immediately and not wait until discovery
is due or almost due.”

Doc. 23 at 4.

The courts in this District repeatedly have

upheld this principle and denied motions to compel when a moving party did not move
to compel discovery within a reasonable time period.

Coleman v. Starbucks, No.

6:14-cv-527-Orl-22TBS, 2015 WL 2449585, at *8 (M.D. Fla. May 22, 2015) (“While
there is no local or federal rule setting a precise deadline for the filing of a motion to
compel, it is clear that any such motion must be filed within a ‘reasonable’ time
period.”) (citing Hoai Thanh v. Hien T. Ngo, Civ. No. PJM 11-1992, 2013 WL 1976009,
at *2 (D. Md. May 10, 2013)) (other citations omitted); Pushko v. Klebener, No. 3:15cv-211-J-25HTS, 2007 WL 2671263, at *2 (M.D. Fla. Sept. 7, 2007) (denying a motion
to compel discovery because the moving party served discovery requests on the eve of
the discovery deadline and waited four months to file the motion to compel after it
received the opposing party’s objections to its discovery requests); Malibu Media, LLC

v. Weaver, No. 8:14-cv-1580-T-33TBM, 2016 WL 473133, at *1-*2 (M.D. Fla. Feb. 8,
2016) (upholding the United States Magistrate Judge’s order that denied the two
motions to compel brought one day before the discovery deadline expired because the
moving party failed to provide a reason or good cause for the delay in bringing the
motions).
Here, despite the Court’s clear directive in the CMSO, Plaintiff filed the
motions to compel on the discovery cutoff date, which is only one month prior to the
deadline of July 14, 2017 for dispositive motions and five months before the trial term

-7-

of November 6, 2017 are to commence.

Doc. 23 at 1-2, 4.

Because of Plaintiff’s

unexplained delay in bringing her motions to compel, granting her motions would
require extending the discovery deadline and possibly other CMSO deadlines
Docs. 23, 55; see

including the deadline for dispositive motions and the trial term.

Malibu Media, 2016 WL 473133, at *2; Coleman, 2015 WL 2449585, at *8 (“When
parties fail to raise discovery disputes with the court in a timely manner, those
disputes can fester into serious case management problems.”).

Plaintiff, however,

does not offer any explanation why she waited until the discovery cutoff date even to
confer with the opposing counsel, although she had five months to do so.

Docs. 56,

57, 58.
In addition to being untimely, Plaintiff’s motions to compel re-assert the
discovery issues that the Court settled in a prior Order (Doc. 54).

Docs. 56, 57, 58.

In that Order, the Court found in various areas that Plaintiff’s discovery requests are
overly broad because they sought general information not specific to Plaintiff’s claims.
Doc. 54 at 14-20.

The Court clearly stated that this case only “involves a question of

how Defendant treated Plaintiff’s debt specifically, not how it generally treats discharged
debts.”

Id. at 19.

Accordingly, the Court limited the scope of Plaintiff’s various

discovery requests to specific statutes alleged in her Second Amended Complaint and to
information regarding Plaintiff.

Id. at 14-20.

Although the Court set clear limits on the scope of discovery, Plaintiff’s discovery
requests at issue here again ask for broad information.

In disregard of the Court’s

rulings, for example, Plaintiff’s discovery request for punitive damages asks Defendant
to identify all lawsuits pending against Defendant, which involve the same conduct

-8-

alleged here, regardless of whether those lawsuits involve Plaintiff or not. Docs. 56 at
3, 56-1 at 2.
Furthermore, Interrogatory No. 3 requests any and all procedures, policies, rules,
and guidelines that Defendant uses to comply with the FDCPA and the FCCPA. Doc.
57 at 6.

The Court already addressed a substantively similar discovery request 1 and

limited the scope of Defendant’s production of documents related to the specific
statutes at issue here, section 559.72(9) of the Florida Statutes and 15 U.S.C. §§
1692e(2)(A), 1692e(10), and 1692f, during the relevant time period.
20.

Doc. 54 at 19-

The Court explained that it “will not permit Plaintiff to inquire into Defendant’s

overarching policies and practices to comply with the FDCPA or the FCCPA on the
hope of finding something relevant to this case.”

Id. at 20. Accordingly, the Court

finds that by contesting the discovery issues the previous Order addressed, Plaintiff’s
motions seek in disguise the Court’s reconsideration of its previous Order, or reveal
that Plaintiff’s counsel has not carefully read or followed the Court’s Order.

Docs.

54, 56, 57, 58.
Furthermore, the Court finds that Plaintiff has served redundant discovery
requests.

In the Notice, Plaintiff sought that Defendant bring to the deposition

“[t]he full account history for any accounts held by Defendant and associated with
Plaintiff, including records involving bankruptcies, civil lawsuits, and any and all
communications between Defendant or anyone acting on behalf of Defendant and
Plaintiff’s Demand Number 3 in the Notice sought the production of “[c]opies of the
standard operating policies, practices or procedures that Defendant has adopted, employed
or otherwise followed regarding compliance with the [FDCPA] and/or the [FCCPA].” Doc.
52-1 at 6.
1

-9-

either Plaintiff or their counsel in any legal matter.”

Doc. 54 at 21.

The Court

ordered Defendant to produce the requested documents of the relevant time period.

Id.

Plaintiff’s Request for Production No. 3, however, demands Defendant to

produce “[a]ny and all correspondence which relates to any account [Defendant]
associate[s] with Plaintiff’s name, social security number, Nationstar loan number
and/or the subject property.”

Doc. 58 at 5. This example of the discovery requests

shows that Plaintiff’s motions contain overlapping discovery requests.

Id.; Doc. 54

at 21.
The Court’s analysis of Plaintiff’s motions reveals that the motions are not
substantively ripe for the Court’s review because they contain issues the Court
already has addressed or Plaintiff can resolve easily by comparing her discovery
requests.

The Court will not expend its resources to reiterate its rulings and

compare Plaintiff’s discovery requests in detail, especially when the motions to
compel were not timely filed.

Docs. 56, 57, 58.

The Court reminds Plaintiff that

only when she cannot resolve disputes after conducting adequate legal research and
carefully reading the Court’s Order and her own discovery requests should she resort
to the Court’s help and present meaningful arguments for the Court to consider.
Based on the reasons above, the Court will deny Plaintiff’s motions to compel.
ACCORDINGLY, it is hereby
ORDERED:
1.

The Joint Motion to Extend Discovery Cutoff (Doc. 55) is GRANTED in

part and DENIED in part.

The parties shall have up to and including June 20, 2017

- 10 -

to show cause in writing why the Court should find good cause to extend the discovery
deadline unconditionally, and not for the limited purposes of rescheduling the
deposition only.
2.

Plaintiff’s Motion to Compel Punitive Discovery Responses (Doc. 56) is

DENIED.
3.

Plaintiff’s Motion to Compel Responses to Plaintiff’s Interrogatories (Doc.

57) is DENIED.
4.

Plaintiff’s Motion to Compel Responses to Plaintiff’s Request for

Production (Doc. 58) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 13th day of June, 2017.

Copies:
Counsel of record

- 11 -