Judson v. Midland Credit Management, Inc. et al

Filing 50

Magistrate Judge David H. Hennessy: ORDER entered denying 46 MOTION to Compel Midland Credit Management, Inc.'s Compliance with the August 1, 2014, Order of Court and MOTION for Sanctions; denying 47 MOTION to Strike 46 MOTION to Compel Midland Credit Management, Inc.'s Compliance with the August 1, 2014, Order of Court and for Sanctions. (Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

DUNCAN JUDSON,
Plaintiff,
v.
MIDLAND CREDIT MANAGEMENT, INC.
and MIDLAND FUNDING, LLC,
Defendants.

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CIVIL ACTION
NO. 13-11435-TSH

ORDER ON PLAINTIFF’S MOTION TO COMPEL
October 1, 2014
Hennessy, M.J.
Pursuant to 28 U.S.C. § 636(b)(1)(A), by Order of Reference (Docket #49), this matter
was referred to me for a ruling on Plaintiff Duncan Judson’s Motion to Compel Compliance with
this Court’s August 1, 2014 Order and for Sanctions (Docket #46). Defendants Midland Credit
Management, Inc. and Midland Funding, LLC (collectively “Midland”) have filed a responsive
pleading, styled as a Motion to Strike Plaintiff’s Motion to Compel and for Sanctions (Docket
#47). Midland requested a hearing at a status conference calendared before the District Judge,
which was implicitly denied by the Order of Reference. This matter is now ripe for adjudication.
For the reasons that follow, the Motion to Compel and for Sanctions is DENIED, and the Motion
to Strike is DENIED. Should Plaintiff ultimately prevail on the merits of this lawsuit, his
counsel is directed to subtract from their statutory costs and attorney’s fees, all costs and fees
incurred in filing the instant motion. Finally, Plaintiff is issued yet another warning that the
failure to comply with the Local Rules of this Court may result in the imposition of sanctions,
including dismissal with prejudice. See L.R. 1.3.

Background
Plaintiff has sued Midland alleging that Midland violated the Fair Debt Collection
Practices Act (“FDCPA”). In support of this claim, Plaintiff alleges that from December 2012
through March 2013, Midland called the Plaintiff nearly every day, and sometimes more than
once a day. (Docket #1 at ¶ 19). Midland argues that telephone billing records obtained by way
of third party subpoena reflect that Midland made only a few calls to Plaintiff. (Docket #47 at ¶
1). Efforts to resolve this matter have been unsuccessful. (Id.)
On August 1, 2014, I issued a ruling that denied in part and granted in part Plaintiff’s
Motion to Compel Full and Complete Responses to Interrogatories and Requests for Production
of Documents. (Docket #41). Midland’s attorneys had sought reimbursement of their fees in
opposing the motion, suggesting among other things, that Plaintiff’s counsel had engaged in
unnecessary and expensive discovery in order to inflate the fees they might collect if Plaintiff
prevailed on his FDCPA claim.1 I denied Midland’s motion for costs. (Id.).
Within that Order, and significant to the disposition of Plaintiff’s current motion, I twice
cautioned Plaintiff’s counsel that any future failures to comply with the Local Rules could lead
to sanctions.2 (Docket #41). The warning was precipitated by Plaintiff’s counsel having filed a
34-page memorandum without first seeking leave, and by their failure to confer with Midland’s
counsel before filing the motion addressed by that Order. (Id.). In addition, though I granted the
motion in part, I did not set a date for compliance with the motion to compel. (Id.). On August

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Pursuant to the FDCPA, Plaintiff’s counsel may recover reasonable attorney’s fees. 15 U.S.C.
§ 1692k(a)(3). As Midland’s counsel pointed out, the recovery of fees in this matter does not
inure to the Plaintiff’s benefit. (Docket #47 at n.1).
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I cautioned: “Counsel for Judson is advised to comply with the Local Rules of this Court, or
face the penalties prescribed therein;” and “[t]he Court is prepared to invoke the penalties
prescribed in the Local Rules for the disregard of them.” (Docket #47 at nn.1, 2).
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14, 2014, Judge Hillman set September 25, 2014 as the deadline for fact discovery. (Docket
#45).
Plaintiff had scheduled Midland’s Rule 30(b)(6) deposition for September 17, 2014.
(Dcoket #46-1). On September 16, 2014, Midland sent their supplemental answers to
interrogatories and informed Plaintiff, by way of e-mail, that they would send the responsive
documents the next day (Midland also unilaterally postponed the Rule 30(b)(6) deposition until
September 23, but the postponement of the Rule 30(b)(6) deposition is not a basis for the instant
motion to compel). (Docket #46-2). No documents arrived on September 17, 2014. (Docket
#46-1). On September 18, at approximately 3:30 p.m., Plaintiff’s counsel e-mailed Midland’s
counsel about the remaining discovery, but received no response. (Id.) Instead, Plaintiff’s
counsel received an “out of office” e-mail message that Midland’s counsel was unavailable until
the following day, September 19. (Docket #47 at ¶ 4). Plaintiff’s counsel filed the instant
motion to compel and for sanctions on September 19, 2014. (Docket #46). Accompanying
Plaintiff’s motion is the following certification: “Pursuant to Local Rule of Civil Procedure
7.1(a)(2), the undersigned counsel hereby certifies that the parties, after reasonable effort, were
unable to resolve this dispute.” (Docket #46-3). Local Rule 7.1, on the other hand, provides:
“No motion shall be filed unless counsel certify that they have conferred and have attempted in
good faith to resolve or narrow the issue.”
Midland represents in their opposition to the current motion that they produced their
supplemental responses to document requests on September 19, 2014, two days after they had
agreed to provide such discovery. (Docket #47 at ¶6). Midland also informed the Court that, in
light of the September 19 production of discovery, they asked Plaintiff’s counsel to withdraw the

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Motion to Compel and for Sanctions, but that Plaintiff’s counsel refused to withdraw the motion
unless they were reimbursed for their fees and costs. (Docket #47-3).
Plaintiff’s Motion to Compel
The motion to compel is DENIED because it is moot. I accept the representation of
Midland that they have produced all responsive documents. There is nothing to compel.
Plaintiff’s Motion for Sanctions
The motion for sanctions for failure to comply with this Court’s August 1, 2014 Order is
DENIED. As the record shows, the Court did not order production of discovery by a date
certain. Without such an Order, Plaintiff’s Rule 37(b) motion lacks a factual predicate. See Fed.
R. Civ. P. 37(b) (titled “Failure to Comply with a Court Order”). While the record is unclear as
to how and when Midland agreed to serve the supplemental documents on September 17, 2014,
Midland’s production two days later on September 19 does not amount to a failure to obey a
court order.
Sanction for Plaintiff’s Failure to Meaningfully Comply with Local Rule 7.1
Further, this Court finds that Plaintiff’s counsel failed to discharge their obligations under
Local Rule 7.1 by filing the instant motion without conferring with Midland. The instant motion
demonstrates a patent disregard for the Court’s time. See, Converse, Inc. v. Reebok Intern. Ltd.,
328 F. Supp. 2d 166, 170-71 (D. Mass. 2004) (adopting the magistrate judge’s finding that the
failure “to comply with Rule 7.1 is an ‘offense … that harms the District Court as much as
[opposing counsel].’”). Plaintiff’s e-mail to Midland on September 18, 2014, does not amount to
a conference between counsel. Id. at 174-75 (leaving a voice message with opposing counsel
was not a “conference” under L.R. 7.1). Rather, the record suggests that Plaintiff hastily filed
the instant motion without giving Midland a meaningful opportunity to explain the delay of two

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days in the production of some discovery -- a conference that would have obviated the need for
Plaintiff’s instant motion. Moreover, this is not a situation where the delay of two days for
discovery prejudiced Plaintiff, because the Rule 30(b)(6) deposition has been continued to a date
in October. (Docket #47-3).
As a sanction, should Plaintiff prevail on the merits of his FDCPA claim, in any written
or oral motion by Plaintiff for attorney’s fees and costs in this case, Plaintiff’s counsel shall
expressly represent that they have excluded all costs and attorney’s fees incurred in the instant
motion to compel and for sanctions.
Midland’s Motion to Strike
Midland’s Motion to Strike is DENIED. Rule 12(f) provides, in pertinent part, “[t]he
court may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f) (emphasis added). The First Circuit
has repeatedly held that memoranda and motions are not considered pleadings within the
meaning of the Rules of Federal Civil Procedure (see Fed. R. Civ. P. 7(a) for a definition of a
“pleading”); therefore it has refused to strike motions under Fed. R. Civ. P. 12(f). See e.g.
Pilgrim v. Trs. of Tufts Coll., 118 F.3d 864, 868 (1st Cir. 1997), abrogated on other grounds by
Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002) (Rule 12(f) applies only to pleadings
and not to motions made in pursuit or in opposition to summary judgment); Kuehl v. F.D.I.C., 8
F.3d 905, 907, n.4 (1st Cir. 1993) (“[i]t is well established in this circuit that motions to dismiss
are not responsive pleadings”); Phinney v. Paulshock, 181 F.R.D. 185, 207 (D.N.H. 1998) aff’d
sub nom. Phinney v. Wentworth Douglas Hosp., 199 F.3d 1 (1st Cir. 1999) (Rule 12(f) only
applies to pleadings); Marcello v. Maine, 489 F. Supp. 2d 82, 85–86 (D. Me. 2007) (a summary

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judgment motion is not a pleading as defined by Rule 7); Colon v. Blades, 268 F.R.D. 143, 146
(D.P.R. 2010) (“[a]n informative motion is not a pleading within the meaning of Rule 12(f)”).

CONCLUSION
Plaintiff’s counsel has filed an unnecessary and wasteful motion, and has again failed to
comply with the Local Rules of this Court. It is conduct that tempts the imposition of a serious
sanction.
Plaintiff’s motion (Docket #46) and Midland’s motion (Docket #47) are DENIED.

/s/ David H. Hennessy
David H. Hennessy
UNITED STATES MAGISTRATE JUDGE

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