Perry v. JTM Capital Management, LLC

Filing 104

DECISION AND ORDER adopting the Report and Recommendations, Docket Item 100 ; granting the plaintiff's motion to amend the complaint, Docket Item 89 ; granting the plaintiff's motions to stay the deadline for summary judgment, Docket Item s 90 , 94 , 98 ; and denying without prejudice to the refiling of dispositive motions the defendant's motion for summary judgment, Docket Item 88 . The case is referred back to Judge Schroeder for further proceedings consistent with the referral order of May 30, 2018, Docket Item 26. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 12/9/2021. (EK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

THERESA MULLERY,
Plaintiff,
v.

18-CV-549-LJV-HKS
DECISION AND ORDER

JTM CAPITAL MANAGEMENT, LLC,
Defendant.

AMANDA PERRY,
Plaintiff,
v.

18-CV-566-LJV-HKS
DECISION AND ORDER

JTM CAPITAL MANAGEMENT, LLC,
Defendant.

In October 2017, the plaintiffs, Theresa Mullery and Amanda Perry, commenced
separate but substantially similar actions in the United States District Court for the
Northern District of Illinois. No. 18-CV-549, Docket Item 1; No. 18-CV-566, Docket
Item 1. Both plaintiffs claim that the same defendant, JTM Capital Management, LLC
(“JTM”), violated the Fair Debt Collection Practices Act (“FDCPA”). No. 18-CV-549,
Docket Item 1; No. 18-CV-566, Docket Item 1. In May 2018, United States District
Judge Robert W. Gettleman transferred the cases to this Court. No. 18-CV-549, Docket
Item 24; No. 18-CV-566, Docket Item 23.
This Court then referred both cases to United States Magistrate Judge H.
Kenneth Schroeder, Jr., for all proceedings under 28 U.S.C. § 636(b)(1)(A) and (B). No.

18-CV-549, Docket Item 27; No. 18-CV-566, Docket Item 26. On June 18, 2021, the
defendant moved for summary judgment in each case. No. 18-CV-549, Docket Item 91;
No. 18-CV-566, Docket Item 88. That same day, the plaintiffs moved to amend their
complaints to include allegations that the defendant violated two additional sections of
the FDCPA, 15 U.S.C. §§ 1692e and 1692g. No. 18-CV-549, Docket Item 92; No. 18CV-566, Docket Item 89. On July 2, 2021, the defendant responded, No. 18-CV-549,
Docket Item 95; No. 18-CV-566, Docket Item 92; and on July 8, 2021, the plaintiffs
replied, No. 18-CV-549, Docket Item 98; No. 18-CV-566, Docket Item 95. The plaintiffs
also moved to stay the summary judgment deadline or, in the alternative, to extend the
time to respond to the defendant’s motions for summary judgment. No. 18-CV-549,
Docket Items 93, 97, 101; No. 18-CV-566, Docket Items 90, 94, 98.
On September 9, 2021, Judge Schroeder issued a Report, Recommendation,
and Order (“RR&O”)1 in each case, finding that (1) the plaintiffs' motions to amend their
complaints should be granted; (2) the plaintiffs’ motions to stay summary judgment or, in
the alternative, to extend the deadline for responding to the defendant’s motions for
summary judgment should be granted; and (3) the defendant's motions for summary
judgment should be denied without prejudice. No. 18-CV-549, Docket Item 103; No. 18CV-566, Docket Item 100. The parties did not object to the RR&O, 2 and the time to do
so now has expired. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).

The RR&O is labelled as a “Decision and Order” but clearly makes
recommendations, and so this Court refers to it as the RR&O.
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2

In fact, the parties have proceeded as if the RR&O already has been adopted.
The plaintiffs filed amended complaints the day after the RR&O was issued, No. 18-CV549, Docket Item 104; No. 18-CV-566, Docket Item 101; and on October 16, 2021, the
2

A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court must
review de novo those portions of a magistrate judge’s recommendation to which a party
objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). But neither 28 U.S.C. § 636
nor Federal Rule of Civil Procedure 72 requires a district court to review the
recommendation of a magistrate judge to which no objections are raised. See Thomas
v. Arn, 474 U.S. 140, 149-50 (1985).
Although not required to do so in light of the above, this Court nevertheless has
reviewed Judge Schroeder's RR&O. Based on that review and the absence of any
objections, the Court accepts and adopts Judge Schroeder's recommendation to grant
the plaintiffs' motions to amend their complaint and stay the summary judgment briefing
deadlines and to deny the defendant's motions for summary judgment.
For the reasons stated above and in the RR&O, the plaintiffs' motions to amend
their complaints, No. 18-CV-549, Docket Item 92; No. 18-CV-566, Docket Item 89, are
GRANTED; the plaintiffs' motions to stay the deadline for motions for summary
judgment, No. 18-CV-549, Docket Items 93, 97, 101; No. 18-CV-566, Docket Items 90,
94, 98, are GRANTED; and the defendant’s motions for summary judgment, No. 18-CV549, Docket Item 91; No. 18-CV-566, Docket Item 88, are DENIED without prejudice to
the refiling of dispositive motions. The case is referred back to Judge Schroeder for
further proceedings consistent with the referral orders of May 30, 2018, No. 18-CV-549,
Docket Item 27; No. 18-CV-566, Docket Item 26.

defendant answered, No. 18-CV-549, Docket Item 109; No. 18-CV-566, Docket Item
103.
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SO ORDERED.
Dated:

December 9, 2021
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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