Stewart v. Equifax Information Services, LLC et al
Filing
92
MEMORANDUM AND ORDER denying 55 Motion for Reconsideration re 54 Order on Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 12/18/17. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LUCRETIA L. STEWART,
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Plaintiff,
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v.
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CREDIT ONE BANK, N.A., et al.,
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Defendants.
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____________________________________)
Case No.16-2781-DDC-KGG
ORDER ON MOTION FOR PARTIAL RECONSIDERATION
Now before the Court is Defendant Credit One Bank’s Motion for Partial
Reconsideration (Doc. 55) of this Court’s Order (Doc. 54) on Plaintiff’s Motion to
Compel (Doc. 43.) For the reasons set forth below, Defendant’s motion (Doc. 55)
is DENIED.
BACKGROUND
Plaintiff brings the present action alleging violations of the Fair Credit
Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”). Plaintiff contends that
Defendant Credit One Bank, N.A. (“Defendant”) “willfully or negligently,
violated” the FCRA “by failing to respond to reinvestigation requests and failing to
supply accurate and truthful information.” (Doc. 1-1, at ¶ 27.) Plaintiff alleges
that Defendant “knew or should have known that its reporting and activities would
(and will) damage Plaintiff and ability to enjoy life and utilize the credit rating and
reputation property rights secured by honoring obligations to all of creditors.” (Id.,
at ¶ 31.)
Plaintiff’s underlying motion to compel relates to Defendant’s responses to
Requests for Production Nos. 7, 10, and 13. (Doc. 43-1.) Defendant’s motion for
partial reconsideration relates only to Request No. 13 – “[a]ll documents reflecting
any lawsuits where a consumer sued Credit One Bank and a consumer reporting
agency in the past five years relating to the misreporting of joint responsibility for
consumer accounts.” (Id., at 5.)
DISCUSSION
As an initial matter, Plaintiff is correct that Defendant’s motion is untimely.
(Doc. 70, at 4.) Pursuant to D. Kan. Rule 7.3, a party “seeking reconsideration of
non-dispositive orders must file a motion within 14 days after the order is filed
unless the court extends the time.” Defendant waited an entire month to file the
present motion (Doc. 55) after the Court entered the underlying Order (Doc. 54).
Defendant’s motion is, therefore, DENIED on procedural grounds.
Even assuming the Court were to grant Defendant’s request to find the delay
in filing the motion to be excusable (Doc. 77, at 3), the Court also finds
Defendant’s motion should be denied on substantive grounds. As stated above,
Request for Production No. 13 asks for “[a]ll documents reflecting any lawsuits
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where a consumer sued Credit One Bank and a consumer reporting agency in the
past five years relating to the misreporting of joint responsibility for consumer
accounts.” (Doc. 43-1, at 5.) In its responsive brief, Defendant contends that it
does not have a ‘database’ that would provide a
spreadsheet containing case names and numbers of all
lawsuits filed in state, federal and arbitral forums against
Credit One alleging FCRA violations. Even if Credit
One could cull such information, it is not relevant and is
not proportional to the needs of this case. The number of
times Credit One has been sued alleging an FCRA
violation has no bearing on whether its procedures were
actually found to be unreasonable.
(Doc. 48, at 5 (citation omitted).)
Defendant ultimately provided a supplemental response to Plaintiff after its
response to the underlying motion to compel. The supplemental response to
Request No. 13 was “limited to a list of the names of plaintiffs/ claimants, and the
state in which the lawsuit/arbitration was brought,” without including a case name,
case number, or the court in which the lawsuit was filed. (Doc. 51, at 4.)
Defendant contends that it “does not keep records of the case numbers or
jurisdictions of the lawsuits/arbitrations it is a party to.” (Id.)
In its underlying Order, this Court held that if Defendant was willing and
able to compile a list of names of plaintiffs/claimants and the state in which their
lawsuit/arbitration was brought, the Court sees no valid reason why Defendant
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could not have – and should not be required to – include the case number and
jurisdiction. (Doc. 54, at 9.) As the Court previously held, “[t]o do so would have
required little to no additional effort based on the information presented to the
Court.” (Id.)
In the motion for partial reconsideration, Defendant argues that the Court
should not require it
to compile a list of case names and numbers, first,
because Credit One does not maintain such a list in the
regular course if its business. See Fed. R. Civ. P.
34(b)(2)(E)(ii). Also, requiring Credit One to compile
this information – information that is equally available to
Plaintiff – through public records is disproportionate.
Moreover, Plaintiff has already asserted that she would
be satisfied with this list if she had a sworn assurance that
Defendant does not track this information, which Credit
One’s deponent testified to on August 8, 2017.
(Doc. 55, at 2.)
“A motion to reconsider is not a second chance for the losing party to make
its strongest case or to dress up arguments that previously failed.” Voelkel v. Gen.
Motors Corp., 846 F.Supp. 1482, 1483 (D.Kan.1994), aff'd, 43 F.3d 1484 (Table)
(10th Cir.1994). “A motion for reconsideration must be based on (1) an
intervening change in controlling law; (2) the availability of new evidence; or (3)
the need to correct clear error or prevent manifest injustice.” D. Kan. Rule 7.3
(emphasis added). Defendant has presented no argument that there has been an
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intervening change in controlling law.
Defendant does contend that new evidence is available. Defendant argues
that the testimony of Mr. Haynal regarding Defendant’s record-keeping (that
Defendant categorizes these lawsuits “just simply by name and state,” Doc. 55-1, at
1, 10-11) constitutes “newly discovered evidence.” While the deposition may have
been completed after the Court entered the underlying Order, the information
presented in Mr. Haynal’s testimony should have and would have been available to
Defendant when the underlying motion was briefed. Even assuming this to
constitute newly available evidence, the Court is unpersuaded that this information
necessitates reaching a different result on the merits of Defendant’s motion. As
such, the Court will review Defendant’s request for reconsideration in the context
of the final basis – correction of clear error or prevention of manifest injustice.
While Defendant argues the burden placed on it to compile such a list would
be “disproportionate,” this does not equate to “clear error” or “manifest injustice.”
Plaintiff could have just as easily have posed this question in the form of an
interrogatory asking Defendant to respond by listing such lawsuits and identifying
each by the case number and jurisdiction. The Court does not find it to be
manifestly unjust or clearly erroneous to require Defendant to provide this
information in response to Plaintiff’s document request, regardless of how
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Defendant chooses to “systematically track” such information. Defendant’s
motion is, therefore, DENIED.
IT IS THEREFORE ORDERED that Defendant’s Motion for Partial
Reconsideration of Order on Motion to Compel (Doc. 55) is DENIED. A
supplemental response to Request No. 13, as originally ordered by this Court (Doc.
54) shall be served within thirty (30) days of the date of this Order.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 18th day of December, 2017.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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