Holmes v. All American Check Cashing, Inc. et al

Filing 187

ORDER granting 176 Motion to Compel. Signed by Magistrate Judge S. Allan Alexander on 2/10/16. (bnd)

THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
TAMIKA HOLMES
v.

PLAINTIFF
CIVIL ACTION NO: 2:11-CV-7-NBB-SAA

ALL AMERICAN CHECK CASHING, INC.

DEFENDANT

ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL
Plaintiff Tamika Holmes has moved to compel defendant to provide complete responses
to Interrogatories and to provide executed responses as required by Federal Rule of Civil
Procedure 33(b)(5). Docket 176. The undersigned has reviewed plaintiff’s Motion,
Memorandum Brief (Docket 177) and defendant’s Response (Docket 181), and concludes that
the Motion to Compel should be GRANTED.
Plaintiff propounded Interrogatories to defendant before the Case Management
Conference on August 6, 2015. Because both the Federal Rules of Civil Procedure and the Local
Uniform Civil Rules require that discovery not be propounded before the Case Management
Conference, the parties agreed that responses would be due on November 20, 2015. Defendant
provided incomplete responses to the Interrogatories, and no representative of All American
Check Cashing, Inc. signed the answers as required by Rule 33(b)(5). Despite plaintiff’s raising
this issue in her Motion to Compel, defendant has still not provided executed responses and did
not address the issue in its Response.
This type of blatant failure to satisfy the most basic elements of a response to a discovery
request is reflective of defendant’s defense strategy thus far in this action and will not be
tolerated in this court. Defendant is ORDERED to provide complete responses to

Interrogatories including the signature of the All American Check Cashing, Inc. employee who
answers the Interrogatories within seven (7) days of the entry of this order. Failure to provide the
discovery as ordered will result in the imposition of sanctions upon plaintiff and its counsel,
including but not limited to the possibility of striking all of defendant’s defenses to plaintiff’s
claims and an adverse inference instruction to the jury. Defendant’s tactics to date suggest that
defendant is hiding something that it does not want plaintiff to discover. The court is serious
about its directives to defendant and its counsel to begin working with plaintiff’s counsel in good
faith and to refrain from further tactics to avoid production of documents and relevant
information in discovery.
Plaintiff’s counsel emailed all attorneys of record for defendant concerning the
deficiencies on December 21, 2015, faxed a letter to defense counsel on December 22, 2015, and
did not file his Motion to Compel until January 2, 2016. Defense counsel implies that plaintiff’s
counsel should have further consulted with her before filing the motion. However, on prior
occasions defense counsel has emailed plaintiff’s counsel concerning a discovery issue one
afternoon and filed a motion the following day. Plaintiff’s counsel clearly allowed sufficient
time for a proper response from defendant, but received nothing other than an indication that
Mrs. Ross would review the responses and address the concerns. Those concerns were not
addressed, so plaintiff had to proceed with filing a motion. These petty arguments are
unprofessional and unnecessary in the context of these motions, particularly given that defendant
has woefully failed to respond to discovery.
The parties have not resolved any objections raised by defendant in response to the
Interrogatories or any issues addressed in the Motion to Compel. Therefore, each Interrogatory
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will be addressed separately below.
Interrogatory 1: Plaintiff seeks the identity of any “charges or complaints against the
Defendant alleging violations of any civil law or regulation, including the investigation
conducted by the Mississippi Department of Banking and Finance, or any other state or federal
auditor.” Defendant provided a broad objection that the request is vague, unduly burdensome,
irrelevant, not reasonably calculated to lead to the discovery of admissible evidence and as
intending to annoy and harass defendant. The undersigned denied defendant’s motion to quash
the subpoena issued to the Mississippi Department of Banking and Finance (Docket 182) and
concluded that the documents relating to the investigation conducted by the Mississippi
Department of Banking and Finance “are likely not only relevant, but very important to
plaintiff’s case.” This Interrogatory similarly seeks information that is both relevant and
important to plaintiff’s case. Plaintiff’s motion as to Interrogatory 1 is GRANTED. Defendant
is ORDERED to provide a detailed, complete response without any objection within seven (7)
days of the entry of this order.
Interrogatory 5: Plaintiff seeks the identification of any “charges or complaints against the
defendant alleging violations of any civil law or regulation, including the investigation conducted
by the Mississippi Department of Banking and Finance . . . .” Defendant objected to the
Interrogatory as overly broad, unduly burdensome, irrelevant, as protected by the attorney-client
privilege and as designed to annoy and harass defendant. Docket 177, p. 3. However, despite
asserting attorney-client privilege, defendant has not produced any privilege log as required by
Rule 26. Just as with Interrogatory 1, plaintiff’s request is relevant and important to plaintiff’s
case. Clearly, if defendant has a history of improper maintenance of records concerning debt
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owed by customers and improper pursuit of customers, that information is necessary to the
prosecution of plaintiff’s case. Plaintiff’s motion as to Interrogatory 5 is GRANTED.
Defendant is ORDERED to identify all charges or complaints against it alleging malfeasance in
the pursuit of debt owed by customers and customers it believes to be delinquent within seven (7)
days of the entry of this order.
Interrogatory 6: Plaintiff has requested that defendant identify whether it has any policies
and procedures relating to the prevention of identity theft or any security measures taken to
prevent fraud or forgery. Defendant responded by identifying a set of 66 documents, but did not
indicate whether it does actually have any policies or procedures relating to identity theft or
security measures aimed at preventing fraud or forgery. Rule 33 allows the option to produce
business records if the answer to the interrogatory may be determined from examining the
records and if the burden of ascertaining the answer will be substantially the same for either
party. Defendant simply stated, “See policies of All American attached hereto as documents
numbered All American 24 - All American 90.” Defendant did not provide any detail concerning
the policies or where in the documents the policies may be found. Neither party has provided the
court with a copy of the documents produced, but clearly plaintiff’s counsel has not been able to
ascertain whether defendant has policies or procedures relating to identity theft or security
measures aimed at preventing fraud or forgery from the documents produced. Therefore,
plaintiff’s motion as to Interrogatory 6 is GRANTED. Defendant is ORDERED to respond to
Interrogatory 6 in writing, specifically identifying the pages of each policy identified within
seven (7) days of the entry of this order.
Plaintiff has requested attorney’s fees incurred in filing the Motion to Compel. Docket
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177, p. 4. Defendant did not respond to plaintiff’s request for attorneys fees in its Response.
Docket 181. Rule 37(a)(5) provides that:
If the motion is granted . . . the court must, after giving an
opportunity to be heard, require the party or deponent whose
conduct necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant’s reasonable expenses incurred
in making the motion, including attorney’s fees.
Plaintiff’s motion to compel has been granted in its entirety. Defendant failed to supplement its
responses or even provide signed responses even after plaintiff filed her motion to compel.
Therefore, defendant or its counsel must pay the plaintiff’s reasonable expenses, including
attorney’s fees, incurred in filing the motion to compel. By February 18, 2016, plaintiff must
submit an itemization of all reasonable fees and expenses incurred in connection with the motion
to compel. Defendant may file objections to this itemization by February 25, 2016. If no
objections are filed, plaintiff’s itemization of fees and expenses will be deemed reasonable, and
defendant must tender the total amount claimed to plaintiff no later than March 3, 2016.
SO ORDERED, this, the 10th day of February, 2016.
/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE

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