Mayhall v. Berman & Rabin, P.A.

Filing 66

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiff's motion for sanctions is DENIED. (Doc. No. 31.) IT IS FURTHER ORDERED that Defendant's motion to file an amended answer to Plaintiff's first amended complaint is GRANTED. (Doc. No. 45.) The Clerk of Court shall detach the amended answer (Doc. No. 45-1) filed as an exhibit to the motion for leave and docket it as Defendants amended answer. IT IS FURTHER ORDERED that Defendant's motion for Protective Order is GRANTED. (Doc. No. 50.) A signed Protective Order in the form of Doc. 51-1 shall be filed separately. Signed by District Judge Audrey G. Fleissig on 1/24/2014. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CAROLE MAYHALL,
Plaintiff,
v.
BERMAN & RABIN, P.A.,
Defendant.

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Case No. 4:13CV0175 AGF

MEMORANDUM AND ORDER
In this action under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §
1692 et seq., Plaintiff Carole Mayhall asserts that Defendant Berman &Rabin, P.A.,
violated the FDCPA by attempting to collect a fixed percentage of attorney’s fee in a
state court collection action to recover credit card debt.
Now before the Court are Plaintiff’s motion for discovery sanctions (Doc. No. 31),
Defendant’s motion for entry of a stipulated protective order (Doc. No. 50), and
Defendant’s unopposed request for leave to file an amended answer to Plaintiff’s first
amended complaint (Doc. No. 45). For the reasons set forth below, the motion for
sanctions will be denied and the remaining motions will be granted.
I. Motions for Sanctions and Protective Order
As more fully explained in this Court’s Memorandum and Order of August 21,
2013, Defendant twice failed to make timely disclosures under Federal Rule of Civil
Procedure Rule 26(a)(1) and failed to deliver a copy of a proposed protective order to
Plaintiff before presenting it to the Court as a stipulated order. Thereafter, Plaintiff’s

counsel filed a motion for sanctions. In response, Defendant asserted that it failed to
make the disclosures and deliver the protective order due to “IT errors,” affecting its
calendaring of deadlines and email transmissions. Defendant asked the Court to excuse
its delinquency because the “IT errors” were “due to an electronics transmission error
beyond [Defendant’s] knowledge and control.” Doc. No. 33 at ¶ 6.
On August 21, 2013, the Court entered an order requiring Defendant to
supplement its Rule 26(a)(1) disclosures and to provide Plaintiff with a copy of the
proposed protective order. The Court reserved its ruling on the Plaintiff’s motion for
sanctions until such time as Defendant filed its supplemental responses and also
permitted Plaintiff to supplement its pleadings in support of the motion to further explain
the prejudice it suffered as a result of Defendant’s delinquencies. Thereafter, Defendant
filed the supplemental disclosures and provided Plaintiff with the proposed protective
order. Plaintiff did not supplement the motion for sanctions and the time to do so has
expired.
Under Rule 37, a failure to disclose under Rule 26(a) may be deemed
“substantially justified or harmless,” after consideration of the following factors: “(1) the
prejudice or surprise to the party against whom the testimony is offered; (2) the ability of
the party to cure the prejudice; (3) the extent to which introducing such testimony would
disrupt the trial; and (4) the moving party’s bad faith or willfulness.” Rodrick v. Wal–
Mart Stores E., L.P., 666 F.3d 1093, 1096-97 (8th Cir. 2012) (internal citations and
quotations omitted); see also Fed. R. Civ. P 37(b) (2). The failure to make a timely
disclosure is equivalent to a failure to disclose, Trost v. Trek Bicycle Corp., 162 F.3d
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1004, 1008 (8th Cir.1998), as is an incomplete or evasive disclosure. See Fed. R. Civ. P.
37 (a) (4). When a party fails to disclose in compliance with Rule 26(a) “the district
court has wide discretion to fashion a remedy or sanction as appropriate for the particular
circumstances of the case.” Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008).
As it previously noted, the Court finds Defendant’s explanation for the late
disclosures questionable, and indicative, at the very least, of a severe lack of attention to
the proceedings in this case. Nevertheless, the tardy and inadequate disclosures were
corrected early in this litigation and much of the prejudice to Plaintiff cured by
Defendant’s prompt supplementation of its responses. On the record before it at the time
of the August 21, 2013 ruling, the Court noted that it was unable to determine the degree
of prejudice, if any, accruing to Plaintiff. As Plaintiff has not supplemented her briefing
with respect to the issue of prejudice, the Court cannot say that the imposition of
sanctions is warranted here. Rodrick, 666 F.3d at 1096-97.
Further, as Defendant has now provided Plaintiff with the proposed protective
order and Plaintiff has lodged no objection to it, the motion for entry of the protective
order will be granted.
II. Motion for Leave to File an Amended Answer
Defendant moves the Court for leave to file an amended answer pursuant to Rule
15 which expressly provides that leave to file amended pleadings should be freely
granted. Fed. R. Civ. P. 15(a). Plaintiff has not opposed the motion and there is no
indication of undue delay, bad faith, or prejudice to opposing parties, factors that would

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militate against the grant of such leave. See Bell v. Allstate Life Insurance Co., 160 F.3d
452, 454 (8th Cir. 1998). As such, the motion for leave to amend will be granted.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for sanctions is DENIED.
(Doc. No. 31.)
IT IS FURTHER ORDERED that Defendant’s motion to file an amended
answer to Plaintiff’s first amended complaint is GRANTED. (Doc. No. 45.) The Clerk
of Court shall detach the amended answer (Doc. No. 45-1) filed as an exhibit to the
motion for leave and docket it as Defendant’s amended answer.
IT IS FURTHER ORDERED that Defendant’s motion for Protective Order is
GRANTED. (Doc. No. 50.) A signed Protective Order in the form of Doc. 51-1 shall be
filed separately.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 24th day of January, 2014.

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