LEYSE v. BANK OF AMERICA, NATIONAL ASSOCIATION

Filing 209

OPINION AND ORDER ON INFORMAL MOTION TO REOPEN DISCOVERY; that Mr. Leyse's informal motion to reopen discovery is DENIED; that counsel shall confer and file a joint proposed briefing schedule for Mr. Leyse's class certification motion within 7 days.. Signed by Magistrate Judge Steven C. Mannion on 6/14/2019. (ld, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION
Civil Action No.
MARK LEYSE,
2:11-cv-7128-SDW-SCM
Plaintiff,
v.
BANK of AMERICA NATIONAL
ASSOCIATION,

OPINION AND ORDER ON
INFORMAL MOTION TO
REOPEN DISCOVERY
[D.E. 196]

Defendants.
Steven C. Mannion, United States Magistrate Judge.
Before this Court is Plaintiff Mark Leyse’s (“Mr. Leyse”) informal motion to reopen
discovery against non-party DialAmerica Marketing, Inc. (“DialAmerica”).1 DialAmerica
opposes.2 The Court has reviewed the respective submissions and decides the issues without oral
argument.3 For the reasons set forth herein, the Court DENIES Mr. Leyse’s motion.
BACKGROUND AND PROCEDURAL HISTORY4

I.

This action arises from allegations that Bank of America violated the Telephone Consumer
Protection Act, 47 U.S.C. § 227(b)(1)(B), and the regulation, 47 U.S.C. § 64.1200(a)(2), by placing

(ECF Docket Entry No. (“D.E.”) 196 & 200, Pl.’s Letters). Unless indicated otherwise, the Court
will refer to documents by their docket entry number and the page numbers assigned by the
Electronic Case Filing System.
1

2
3

4

(D.E. 199, DialAmerica’s Letter).
Fed. R. Civ. P. 78.

The allegations set forth within the pleadings and motion record are relied upon for purposes of
this motion only. The Court has made no findings as to the veracity of the parties’ allegations.

a prohibited promotional voice call to a residential telephone line.5 Mr. Leyse claims that he
received that prerecorded voice call on or about March 11, 2005 from DialAmerica on behalf of
Bank of America.6
That call was the basis for two prior class-action complaints.7 Mr. Leyse’s roommate at the
time of the call, Genevieve Dutriaux, filed the first complaint on April 12, 2005 in the Southern
District of New York.8 The second action was filed by Mr. Leyse himself on March 10, 2009
(“Leyse I”) in the Western District of North Carolina.9 Leyse I was transferred to the Southern
District of New York and dismissed on June 14, 2010.10
Mr. Leyse then filed this action on December 5, 2011.11 In October 2013, the Third Circuit
found that “[b]ecause Leyse was a putative member of th[e] alleged class [in his roommate’s
action], the statute of limitations on his claim was tolled from [April 12, 2005] until the case was
administratively closed on December 1, 2008.”12 Mr. Leyse’s Amended Complaint, filed in July
2017, also claims that he received the prerecorded voice on or about March 11, 2005,13 but defines

5

(See generally D.E. 1, Compl.; D.E. 93-1, Am. Compl.).

6

(D.E. 93-1, Am. Compl., at ¶¶ 8–10, 13).

7

(D.E. 56, Opinion, at 2).

8

(Id.).

9

(Id., at 3).

10

(Id.).

11

(See generally D.E. 1, Compl.).

12

Leyse v. Bank of Am., Nat. Ass’n, 538 F. App’x 156, 162 (3d Cir. 2013).

13

(D.E. 93-1, Am. Compl., at ¶¶ 8–9, 13).
2

the “Class Period” as the “time during the period beginning four years prior to the commencement
of this action and continuing until the present.”14
Mr. Leyse began his campaign of discovery against non-party DialAmerica in or about July
2017.15 Discovery was supposed to end on November 30, 2017.16 However, the Court granted Mr.
Leyse several extensions to complete limited and specific discovery with DialAmerica.
On November 27, 2018, the Court ordered DialAmerica to comply with Mr. Leyse’s
subpoena.17 However, the Court was informed on January 25, 2019 that no discovery had been
completed since at least November 2018.18 Thereafter, the Court ordered that the remaining nonparty discovery be completed within sixty days.19 The Court then extended the end date a final
time to April 22, 2019.20 Mr. Leyse raised the present dispute on May 9, 2019.21
II.

MAGISTRATE JUDGE AUTHORITY
Magistrate judges are authorized to decide any non-dispositive motion designated by the
Court.22 This District specifies that magistrate judges may determine all non-dispositive pre-trial

14

(D.E. 93-1, Am. Compl., at ¶ 1).

15

(D.E. 102, Letter, at 4–5).

16

(D.E. 114, Order).

17

(D.E. 155, Discovery Order).

18

(D.E. 170, Tr. dated January 25, 2019, at 25).

19

(D.E. 168, Text Order).

20

(D.E. 183, Order, at ¶ 8).

21

(D.E. 196, Pl.’s Letter).

22

28 U.S.C. § 636(b)(1)(A).
3

motions which includes discovery motions.23 Decisions by magistrate judges must ordinarily be
upheld unless “clearly erroneous or contrary to law,”24 but where the decision concerns a discovery
dispute the ruling “is entitled to great deference and is reversible only for abuse of discretion.”25
III.

LEGAL STANDARD
A party seeking to compel discovery bears the initial “burden of showing that the
information sought is relevant to the subject matter of the action.”26 Evidence is relevant if “it has
any tendency to make a fact more or less probable than it would be without the evidence” and “the
fact is of consequence in determining the action.”27 Non-party discovery, however, requires an
even stronger showing of relevance than typical party discovery.28
Then, as here, if the time for obtaining discovery has expired, the party seeking to re-open
discovery must demonstrate good cause.29 “A determination of good cause depends on the
diligence of the moving party” where “[t]he moving party has the burden of demonstrating that

23

L. Civ. R. 72.1(a)(1); 37.1.

24

§ 636(b)(1)(A).

Kresefky v. Panasonic Commc’ns & Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996); Cooper
Hosp./Univ. Med. Ctr. v. Sullivan, 183 F.R.D. 119, 127 (D.N.J. 1998).
25

26

Caver v. City of Trenton, 192 F.R.D. 154, 159 (D.N.J. 2000).

27

Fed. R. Evid. 401.

28

Stamy v. Packer, 138 F.R.D. 412, 419 (D.N.J.1990);

see also N.J. Physicians United Reciprocal Exch. v.
Boynton & Boynton, Inc., et al., No. 12-5610, 2014 WL 4352327, at *3 (D.N.J Sept. 2, 2014).
29

Fed. R. Civ. P. 16(b)(4); see also Grossbaum v. Genesis Genetics Inst., LLC, No. 07-1359, 2010
WL 3943674, at *2 (D.N.J. Oct. 6, 2010) (citations and quotations omitted); GlobespanVirata Inc.
v. Texas Instruments Inc., No. 03-2854, 2005 WL 1638136, at *3 (D.N.J. July 12, 2005); Harrison
Beverage Co. v. Dribeck Imps., Inc., 133 F.R.D. 463, 469 (D.N.J. 1990).
4

despite its diligence, it could not reasonably have met the scheduling order deadline.”30 Good
cause does not exist upon a showing of lack of prejudice to the nonmovant.31
In evaluating whether discovery should be reopened, courts consider the following factors:
“(1) the good faith and diligence of the moving party, (2) the importance of the evidence, (3) the
logistical burdens and benefits of re-opening discovery, [and] (4) prejudice to the nonmoving
party.”32
IV.

DISCUSSION AND ANALYSIS
Mr. Leyse seeks an order reopening fact discovery regarding telemarketing calls in each

year from 2003 to 2011.33 He argues that this period is relevant because his discovery requests
directed at Bank of America and his subpoena served upon DialAmerica sought information and
records for this period.34 Nonetheless, the polestar of discovery is relevance to a party’s claim or
defenses,35 not their discovery wishes.

30

Spring Creek Holding Co. v. Keith, No. 02-376, 2006 WL 2403958, at *3 (D.N.J. Aug. 18,
2006); GlobespanVirata, Inc., 2005 WL 1638136, at *3; Hutchins v. United Parcel Service, Inc.,
No. 01-1462, 2005 WL 1793695, at *3 (D.N.J. 2005).
31

GlobespanVirata, Inc., 2005 WL 1638136, at *3 (citations omitted).

32

J.G. v. C.M., No. 11-2887, 2014 WL 1652793, at *2 (D.N.J. Apr. 23, 2014).

33

(D.E. 196, Pl.’s Letter).

34

(D.E. 196 & 200, Pl.’s Letters).

35

Fed.R.Civ.P. 26(b)(1). See Watson v. Sunrise Sr. Living Servs., Inc., No. 10-230, 2013 WL
103966, at *17 (D.N.J. Jan. 8, 2013).
5

A. Records 2003 to December 4, 2007
The Amended Complaint defines the Class Period as the “time during the period beginning
four years prior to the commencement of this action and continuing until the present.” 36 The
Complaint was filed in 2011, and thus, the Class Period is December 5, 2007 to the present. There
is no mention in the Amended Complaint of any call prior to December 5, 2007 other than the
March 11, 2005 call received by Mr. Leyse. Mr. Leyse has not provided the Court with any
information to support the relevance of records prior to 2007. Consequently, Mr. Leyse has not
satisfied his burden to show that telemarketing records prior to December 5, 2007, other than the
call he received, are relevant to the claims in this suit, and he cannot demonstrate that good cause
exists to reopen discovery for these records. His motion to reopen discovery for telemarketing
records prior to December 5, 2007, with the one exception, will therefore be DENIED.
B. Records December 5, 2007 to 2008
DialAmerica asserts that its records from 2007 and 2008 were corrupted and are not
retrievable. In 2013, DialAmerica transferred its data from magnetic tapes, where the data was
originally maintained, to disk drives, but some of the data did not transfer due to corruption. This
occurred well before Mr. Leyse sought any discovery from DialAmerica though he was aware of
their involvement from the outset. As discussed above, the calls records from 2007, except those
after December 5, 2007, are not even relevant to this action as they occurred prior to the Class
Period.

36

(D.E. 93-1, Am. Compl., at ¶ 1). Compare Leyse v. Bank of Am., N.A.., 538 F. App’x 156, 162
n.6 (3d Cir. 2013) (explaining that whether the appropriate statute of limitations for TCPA claims
is supplied by state or federal law appears to be an open question in the Third Circuit), with Hawk
Valley, Inc. v. Taylor, No. 10-00804, 2012 WL 1079965, at *7 (E.D. Pa. Mar. 30, 2012) (holding
that a TCPA claim subject to the federal four-year “catch-all” statute of limitations).
6

For the records that would be relevant, Mr. Leyse has not demonstrated good faith and
diligence in obtaining these records, especially because he waited such a significant time before
requesting them, and he fails to appreciate the logistical burdens of reopening discovery at such a
late stage in the proceedings. The Court notes the prejudice to DialAmerica if the Court reopened
discovery due to its status as a non-party and its already lengthy production in response to Mr.
Leyse’s subpoena. Mr. Leyse has not provided any reasonable basis for a computer-forensics
expert to examine records. DialAmerica provided an affidavit explaining the corruption of the calls
from 2007 to 2008,37 and this affidavit is proportional to the needs of this case, unlike an
investigation by a computer-forensics expert. As such, Mr. Leyse’s motion to reopen discovery for
telemarketing records for the years 2007 and 2008 will therefore be DENIED.
C. Records 2008 to 2011
Mr. Leyse argues that he only recently learned that DialAmerica has no telephone calls for
Bank of America after 2008 because that is when the telemarketing campaign ended. He relies on
DialAmerica’s Affidavit of Costs, filed on April 23, 2019, which states, “DialAmerica’s
relationship with Bank of America ended in June, 2008. DialAmerica does not have any data for
outbound calls relating to Bank of America for the period subsequent to 2008 through December
31, 2011, which is the end of the period covered by Leyse’s subpoena.”38
DialAmerica counters that Mr. Leyse should have learned that information from Bank of
America. The Court agrees and does not find good cause to reopen discovery because Mr. Leyse
has not met his burden to show that he acted diligently. Mr. Leyse’s reliance on the end date of
December 31, 2011 stems from Bank of America’s representation in its answers to Mr. Leyse’s

37

(D.E. 206, Aff. Of Dee Booth).

38

(D.E. 192, Aff. of Costs, at ¶ 2, n.1).
7

amended first set of interrogatories. Mr. Leyse admits that Bank of America “represented that
‘Promotional Calls’ had been made until December 31, 2011,”39 but now seeks discovery from
non-party DialAmerica to determine the truth of the matter. It is of no moment that DialAmerica
relied on December 31, 2011 when it objected to the subpoena and sought protection from the
Court because the subpoena sought that discovery, DialAmerica continued to have a business
relationship with Bank of America in 2011, and Bank of America represented December 31, 2011
as the end date. Mr. Leyse carries the burden here, not DialAmerica.
Mr. Leyse did not act diligently in obtaining the discovery. The parties’ discovery plan
contemplated completing fact discovery by July 7, 2017.40 Though DialAmerica was identified as
a witness in the Complaint in 2011, Mr. Leyse did not even begin to seek discovery from
DialAmerica until July 2017. Then, after the Court granted Mr. Leyse’s motion to enforce his
subpoena against DialAmerica, he did not engage in discovery for several months. Mr. Leyse has
not acted diligently and fails to appreciate the logistical burdens of reopening discovery. As such,
Mr. Leyse’s motion to reopen discovery will therefore be DENIED.
V.

CONCLUSION
For the foregoing reasons, this Court DENIES Mr. Leyse’s informal motion to reopen
discovery.
An appropriate Order follows:

39

40

(D.E. 200, Pl.’s Letter, at 2).
(D.E. 59-1 at 5, JDP).
8

ORDER
IT IS on this Friday, June 14, 2019,
1. ORDERED, that Mr. Leyse’s informal motion to reopen discovery is DENIED; and it is
further
2. ORDERED, that counsel shall confer and file a joint proposed briefing schedule for Mr.
Leyse’s class certification motion within 7 days.

6/14/2019 10:40:03 AM

Original: Clerk of the Court
Hon. Susan D. Wigenton, U.S.D.J.
cc: All parties
File

9