Roth v. Compucredit Corporation et al

Filing 40

ORDER granting in part 34 Motion for Leave to Depose Hima Amin; granting 35 Motion to Extend Rule 26(f) reporting deadline. The Rule 26(f) planning report deadline is suspended and will be reset, if necessary, after the defendants' Motion to Stay and Compel Arbitration 29 is resolved. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA R O B E R T A L. ROTH, on behalf of h e r se lf and all others similarly s itu a te d , P l a i n t i f f, vs. C OMPUC REDIT CORPORATION, d /b /a Aspire Visa, and COLUMBUS B A N K & TRUST, D e f e n d a n t s. ) ) ) ) ) ) ) ) ) ) ) ) ) 8 :0 8 C V 1 5 6 ORDER In October 2001, plaintiff applied for and received an Aspire Visa credit card issued b y Columbus Bank & Trust ("CB&T"). She challenges the legality of the fees and service c h a rg e s posted to her account by the defendants and asserts claims under the Credit Repair O rg a n iz a tio n Act ("CROA"), 15 U.S.C. 1679, et seq.; the Nebraska Deceptive Trade P ra c tic e s Act ("NDTPA"), Neb. Rev. Stat. 59-1601, et seq.; and the Nebraska Consumer P rotec tio n Act ("NCPA"), Neb. Rev. Stat. 59-1601, et seq., based on the defendants' p ro m o tio n and marketing of the Aspire Visa credit card. In response to the complaint, the defendants filed a Motion to Stay and to Compel A rb itr a tio n (Doc. 29), together with an evidence index (Doc. 30) containing a copy of the p la in tif f 's credit card application (Ex. 1) and a copy of the credit card agreement (Ex. 2) b e tw e e n plaintiff and CB&T. These exhibits were authenticated by the affidavit of Hima A m in , a paralegal employed by CompuCredit since November 2005. Plaintiff challenges the authenticity of the credit card agreement because a provision o f the credit card agreement quoted in the defendants' brief (Doc. 31 at p. 3/11) does not a p p e a r in defendants' Exhibit 2. Further, the document authenticated by Hima Amin is d if f e re n t than the "Aspire Visa Account Bank Credit Card Agreement" (Doc. 39, Ex. 1A) p ro d u c e d by the law firm of Brumbaugh & Quandahl in September 2007 in conjunction with th e ir attempt to collect amounts due on plaintiff's Aspire Visa account.1 P la in tif f , therefore, filed a Motion for leave to depose Hima Amin for the purpose of re s p o n d in g to defendants' motion to stay and compel arbitration. The defendants object. In light of the conflicting credit card agreements produced by the parties, and the text q u o te d in the defendants' brief that is not included in their evidence index, the court finds that p la in tif f should be allowed to depose Hima Amin for the very limited purposes of (a) e x a m in in g her role as document custodian for CompuCredit, see Fed. R. Evid. 803(6), and (b ) determining the source of the document filed at Doc. 30 as defendants' Exhibit 2. P la in tif f may not inquire of Ms. Amin at this time as to any other topic, e.g., "the The dueling credit card agreements filed by the parties are barely legible; however, it is apparent that the documents are different. -2 - 1 c ir c u m s ta n c e s regarding the execution of the alleged arbitration clause." See Doc. 34 at p. 2 /5 7. I T IS ORDERED: 1. P la in tif f 's Motion for leave to depose declarant Hima Amin (Doc. 34) is g ra n te d , in part. Plaintiff may depose Hima Amin for the limited purposes of (a) examining h e r role as document custodian for CompuCredit, and (b) determining the source of the d o c u m e n t filed at Doc. 30 as defendants' Exhibit 2. 2. D e f en d a n ts ' Motion to extend the deadline for filing their Rule 26(f) planning re p o rt (Doc. 35) is granted, and plaintiff's objection thereto (Doc. 36) is denied. The Rule 2 6 (f ) planning report deadline is suspended and will be reset, if necessary, after the d e f e n d a n ts ' Motion to Stay and Compel Arbitration (Doc. 29) is resolved. D A T E D November 4, 2008. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge -3-

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