Bell v. CSD Collection Specialist

Filing 25

ORDER granting 16 Motion to Compel. Plaintiff shall appear within the next 30 days for a mutually scheduled deposition of three hours. Plaintiff's counsel shall pay sanctions of $500.00 to defendant's counsel within 14 days of the Order, and the sanctions shall be split equally between palintiff's Louisiana counsel and Illinois counsel. Signed by Magistrate Judge Docia L Dalby on May 3, 2012. (SR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ANTOINETTE BELL

CIVIL ACTION

VERSUS

NUMBER 11-280-BAJ-DLD

CSD COLLECTION SPECIALIST a/k/a
E A UFFMAN & ASSOCIATES, INC.
ORDER
This matter is before the court on defendant’s motion to compel deposition of
plaintiff. (rec.doc. 16) The motion is opposed.
Background
On April 27, 2011, plaintiff filed suit based on the Fair Debt Collection Practices Act,
15 U.S.C. 1692, et.seq. (FDCPA), alleging that defendant called plaintiff on her cellular
telephone three to four times a day during regular business hours while plaintiff was at
work, and failed to provide validation of the alleged debt. Plaintiff seeks damages of
$1,000.00, costs and reasonable attorneys’ fees. (rec.doc. 1)
The court set scheduling deadlines in August, 2011. On March 1, 2012, defendant
filed a consent motion to extend the discovery deadline due to “the unexpected
circumstances regarding plaintiff’s work schedule [which] prevented defendant from having
an opportunity to fully and fairly depose plaintiff....” (rec.doc. 14) In support of the motion
to extend the discovery deadline, defendant explained that on February 17, 2012, it noticed
plaintiff’s deposition for February 29, 2012. When plaintiff arrived for the properly noticed
deposition, she informed counsel that she was only “available for one (1) hour on that date
because she would need to return to work for an important meeting.” Id. Defendant also
stated that the parties agreed that plaintiff would be made available on another date in the

next 30 days “to ensure defendant had an opportunity to fully examine” plaintiff. Id. The
court granted the consent motion for extension, and extended the discovery deadline to
April 2, 2012.
The Motion to Compel
When plaintiff provided notice at the start of the deposition that she was only
available for one hour, plaintiff’s Louisiana counsel and defendant’s counsel agreed to
conduct as much of the deposition as possible and resume the deposition on another
mutually agreeable date within the next 30 days. (rec.doc. 16) Louisiana counsel and
defendant’s counsel confirmed the agreement in writing, along with the agreement to
extend the discovery deadline. Defendant’s counsel also contacted plaintiff’s Illinois
counsel the same day to confirm the extension of the deadline and the agreement to
resume plaintiff’s deposition on another date. This agreement also was confirmed in
writing, and on March 1, 2012, Illinois counsel’s office offered March 19 or March 20 as
available dates for plaintiff's continued deposition. Defendant thereafter noticed the
deposition for March 20, 2012; however, on March 9, 2012, Illinois counsel advised via
email that plaintiff would not be produced for the March 20, 2012, deposition, asserting that
defendant’s counsel “affirmatively stated” that he was through with questioning at the
conclusion of the first deposition, and characterizing the deposition as a “second chance
to depose” plaintiff and appears meant to “merely inconvenience and harass” plaintiff.
(rec.doc. 16, in globo)
The court disagrees with plaintiff's characterization of the first deposition and of
defendant's request for another deposition.

For example, the court’s review of the

deposition transcript shows the following exchange:
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Defendant’s counsel: That’s all the questions I have for now.
Louisiana counsel: Are you done or you just –
Defendant’s counsel: I’m done. I’m done. It was a little rushed, but I think we
covered the basics.
(rec.doc. 18-5)
The phrases “I’m done,” and “I think we covered the basics,” speak to counsel’s
recognition of plaintiff’s tight schedule that morning. Defendant’s counsel was rushed at
the first deposition, as he clearly stated, and he also plainly stated he had covered “the
basics.” In no way does that presume the deposition was concluded in its entirety; it simply
concludes that portion of the deposition in deference to plaintiff’s schedule. This exchange
between counsel at the deposition, the consent by plaintiff to the discovery extension,
defendant's email requesting a March date and advising that 3 more hours were needed
to complete plaintiff’s deposition (rec.doc. 16-2, pg. 19), and the response email from
Illinois counsel’s office offering March 19 or March 20 (Id.) as available dates for plaintiff's
deposition, is a clear indication to the court that plaintiff’s Louisiana and Illinois counsel both
agreed to continue plaintiff’s deposition at another date.
Plaintiff also argues that the low amount of available damages should preclude
“another” deposition. The court finds no merit in that argument. Plaintiff engaged counsel
in two different states to represent her, despite the low statutory damages allowed in
FDCPA matters, and the two counsel appear to regularly have consulted with each other
regarding this case, which would lead to the logical conclusion that plaintiff finds more value
in this case than is stated in her opposition brief. Also, it is important to note that
defendant’s counsel was unaware up to the moment of the start of the first deposition that

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plaintiff intended only to appear for her deposition for a very brief time, although Illinois
counsel does not dispute that he had advance notice of this fact (rec.doc. 16-1, pg. 2), and
yet did not share this knowledge with defendant’s counsel at all. Sharing that information
in advance very likely could have led to plaintiff's deposition being rescheduled, making this
motion unnecessary.
Therefore, the court finds that another deposition of plaintiff is necessary, and will
order that plaintiff appear within the next 30 days for a mutually scheduled deposition of
three hours. Moreover, pursuant to Rule 37, and in light of plaintiff’s counsels’ actions and
the unnecessary intervention of this court, the court will sanction plaintiff’s counsel $500.00,
to be paid equally between plaintiff's Louisiana counsel and Illinois counsel to defendant's
counsel within 14 days of this Order.
Accordingly,
IT IS ORDERED that motion to compel be GRANTED as follows:
1.

Plaintiff shall appear within the next 30 days for a mutually scheduled
deposition of three hours.

2.

Plaintiff's counsel shall pay sanctions of $500.00 to defendant's counsel
within 14 days of this Order, and the sanctions shall be split equally between
plaintiff's Louisiana counsel and Illinois counsel.

Signed in Baton Rouge, Louisiana, on May 3, 2012.

MAGISTRATE JUDGE DOCIA L. DALBY

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