Malygin v. Zakheim & Lavrar, P.A.

Filing 33

ORDER: Plaintiff Maxim Malygin's Motion to Lift Stay (Doc. # 29 ) is DENIED. This case remains stayed and administratively closed. The parties are directed to advise the Court immediately upon the conclusion of the state court case.Signed by Judge Virginia M. Hernandez Covington on 1/12/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MAXIM V. MALYGIN,
Plaintiff,
v.

Case No. 8:15-cv-2925-T-33AEP

ZAKHEIM & LAVRAR, P.A.,
Defendant.
_______________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff
Maxim Malygin’s Motion to Lift Stay (Doc. # 29), which was
filed on December 13, 2016.

Defendant Zakheim & Lavrar, P.A.

filed a Response in Opposition (Doc. # 32) on January 9, 2017.
For the reasons stated below, the Court denies the Motion.
Discussion
Malygin opened a credit card account with Discover Bank
but fell behind on his payments in 2013. (Doc. # 2 at ¶¶ 1718). In November of 2014, Discover Bank turned the account
over

to

the

law

firm

of

Zakheim

&

Lavrar,

collection, servicing, or both.” (Id. at ¶ 19).

P.A.

“for

Zakheim &

Lavrar, P.A. filed a state court complaint on behalf of
Discover

Bank

against

Malygin

asserting

claims

for

open

account and account stated in an effort to collect the debt,
which is approximately $12,000.00. (Id. at ¶¶ 20, 22, 29-30).
Malygin takes issue with the nature of the state court

collection case, contending that Zakheim & Lavrar, P.A.’s
legal theories advanced in state court violate the Fair Debt
Collection Practices Act.
On October 30, 2015, Malygin filed a complaint against
Zakheim & Lavrar, P.A. in state court, containing three counts
for violations of the Fair Debt Collection Practices Act. In
Count One, Malygin claims Zakheim & Lavrar, P.A. engaged in
“conduct the natural consequence of which is to harass,
oppress, or abuse Plaintiff in connection with the collection
of the Debt.” (Doc. # 2 at ¶ 53). Malygin indicates that
Zakheim & Lavrar, P.A. “filed the Collection Case knowing that
Plaintiff

was

statistically

unlikely

to

respond

to

the

Collection Case, thereby permitting [Zakheim & Lavrar, P.A.]
to obtain a default judgment against Plaintiff based upon
invalid legal theories and in an amount that includes interest
not otherwise allowed under Florida law.” (Id. at ¶ 55).
In Count Two, Malygin alleges that Zakheim & Lavrar, P.A.
used “false, deceptive, or misleading means or representations
in

attempting

to

collect

the

Debt

.

.

.

by

falsely

representing the character, amount, or legal status of the
Debt.” (Id. at ¶ 58).

Likewise, in Count Three, Malygin

asserts that Zakheim & Lavrar, P.A. used “unconscionable means
in an attempt to collect the Debt . . . by attempting to
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collect an amount not permitted by law.” (Id. at ¶ 67). “More
specifically, within the Collection Case, [Zakheim & Lavrar,
P.A.] attempts to collect the Debt in an amount that included
in its principal, interest at the rate of 18.99%, which is not
authorized under either an Open Account theory or an implied
Account Stated theory.” (Id. at ¶ 69).
Zakheim & Lavrar, P.A. removed Malygin’s FDCPA case on
December 23, 2015, predicating subject matter jurisdiction on
the

presentation

of

a

federal

question.

(Doc.

#

1).

Thereafter, on December 28, 2015, this Court filed its Fast
Track Scheduling Order. (Doc. # 5).
discovery,

required

the

parties

to

That Order stayed
exchange

information

regarding debt collection activities, and referred the parties
to

an

early

mediation

with

all

counsel,

corporate

representatives and insurance professionals to appear in
person.
On January 7, 2016, Zakheim & Lavrar, P.A. filed an
unopposed motion requesting permission for its insurance
claims representative to appear by telephone at the mediation.
(Doc. # 10).

The Court granted the Motion but noted “the

Court reserves the right to require the parties to participate
in a second mediation conference prior to the trial date with
the

insurance

representative

appearing
3

in

person

in

the

instance

that

this

matter

is

not

mediation conference.” (Doc. # 12).

settled

at

the

first

The parties reached an

impasse at the mediation conference held on February 17, 2016.
(Doc. # 14).
The Court held a case management hearing on February 29,
2016. (Doc. # 17). The parties discussed case deadlines and
suggested to the Court that it might be appropriate to stay
this case in light of the related and on-going state court
proceedings.

The Court entered the Case Management and

Scheduling Order on February 29, 2016, setting the discovery
deadline as July 1, 2016, establishing the dispositive motions
deadline as July 15, 2016, scheduling the pretrial conference
for September 1, 2016, and placing the case on the September
2016 trial term.

The parties estimated that the case would

take two or three days to try. (Doc. # 18).
On March 14, 2016, Zakheim & Lavrar, P.A. filed its
“partially agreed motion to stay” (Doc. # 20), explaining:
Defendant law firm Zakheim & Lavrar represents
Discover in the state court action. In the ongoing
state court collection suit, Malygin has challenged
the propriety of the quasi contractual claims in
both a motion for judgment on the pleadings, which
was denied, and a motion for summary judgment.
Plaintiff has sued Defendant Zakheim & Lavrar in
this retaliatory action alleging claims pursuant to
the Fair Debt Collection Practices Act . . . based
upon [the] theory that the pursuit of alleged
invalid claims under Florida law violates the
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FDCPA. The Court should stay this action pending
the resolution of the state court action at the
trial court level, since the Plaintiff and Discover
are currently litigating in state court the
viability of the claims asserted under Florida law.
(Doc. # 20 at 1).

In the Motion, Zakheim & Lavrar, P.A.

explained that Malygin agreed to “a stay of this action, but
only until an Order is entered regarding the motion for
summary judgment in the underlying state court case.” (Id. at
8).

The Court granted the Motion as requested by Zakheim &

Lavrar, P.A., but limited the stay as suggested by Malygin, to
the disposition of the summary judgment motion in state court.
(Doc. # 21).
In the Motion to Lift Stay, Malygin reports that the
state court denied Malygin’s motion for summary judgment on
April 7, 2016, and denied Malygin’s motion for reconsideration
on June 17, 2016. (Doc. # 29 at 2-3).

Malygin accordingly

requests that the Court lift the stay of the case and return
the case to active status.

(Doc. # 29).

To that end, Malygin

posits that “[t]he state court proceeding is certainly related
to this action; however, an adjudication in the state-court
proceeding in favor of Discover would not be dispositive of,
or fatal to, Malygin’s claims here against [Zakheim & Lavrar,
P.A.]. (Id. at 3).
Zakheim & Lavrar, P.A., on the other hand, contends that
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“Plaintiff asserts here that the law firm Zakheim & Lavrar has
violated the FDCPA by the strategy and claims it has pursued
on behalf of its client in state court. Certainly, if the
state trial court continues to hold that the claims asserted
are viable, then Plaintiff’s FDCPA claims here cannot state a
claim upon which relief can be granted.” (Doc. # 32 at 2-3).
Zakheim & Lavrar, P.A. also suggests that Malygin “seeks to
impermissibly split his cause of action.” (Id. at 3).
Given the overlapping nature of the parallel actions, to
promote

judicial

inconsistent

efficiency,

verdicts,

this

and
Court

to

avoid

determines

the

risk

that

it

of
is

appropriate to maintain the stay of the present action.
See Clinton v. Jones, 520 U.S. 681, 706 (1997)(“The District
Court has broad discretion to stay proceedings as an incident
to its power to control its own docket.”); Chudasama v. Mazda
Motor Co., 123 F.3d 1353, 1366 (11th Cir. 1997)(“[D]istrict
courts enjoy broad discretion in deciding how best to manage
the cases before them.”).

Malygin contends Zakheim & Lavrar,

P.A. is “arguing for a perpetual stay” in this case. (Doc. #
29 at 5).

The Court rejects this argument, the stay is until

the resolution of the state court case, and is not perpetual
or otherwise indefinite.

Although this Court is not privy to

the state court’s trial docket, the Court anticipates that a
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trial in state court will take place without delay because the
state court has long since resolved the motion for summary
judgment and motion for reconsideration.
Lift the Stay is accordingly denied.

Malygin’s Motion to

This case will remain

under a stay until the state court case has been finally
resolved. The parties are directed to provide a status report
upon the conclusion of the state court case.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff Maxim Malygin’s Motion to Lift Stay (Doc. # 29)
is DENIED.

(2)

This case remains stayed and administratively closed.

(3)

The parties are directed to advise the Court immediately
upon the conclusion of the state court case.
DONE and ORDERED in Chambers, in Tampa, Florida, this

12th day of January, 2017.

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