Peters v. Credit Protection Association LP
Filing
47
OPINION AND ORDER granting 37 Motion to Compel; denying 40 Cross-motion to stay discovery. Signed by Magistrate Judge Terence P Kemp on 11/26/2014. (pes1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Michael R. Peters,
:
Plaintiff,
:
v.
:
Credit Protection Association :
LP,
Defendant.
Case No.
2:13-cv-767
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
:
OPINION AND ORDER
This matter is before the Court on plaintiff Michael R.
Peters’ motion to compel discovery.
(Doc. 37).
Also before the
Court is defendant Credit Protection Association L.P.’s crossmotion to stay discovery.
(Doc. 40).
For the following reasons,
the motion to compel will be granted, and the cross-motion to
stay discovery will be denied.
I.
Background
This is a putative class action filed under the Telephone
Consumer Protection Act (“TCPA”) and the FCC rules promulgated
under that Act.
Mr. Peters alleges that Credit Protection
Association LP (“CPA”), a debt collector, violated the law by
making artificial voice or prerecorded voice calls to him, and
others similarly situated, without obtaining prior express
consent.
On September 5, 2014, Mr. Peters filed the instant
motion to compel discovery.
In the motion, Mr. Peters moves the
Court to compel responses to the following discovery requests:
Interrogatory No. 1(A):
“For all telephone calls DEFENDANT CPA1 made, using an
AUTODIALER, to an OHIO NUMBER previously obtained by
DEFENDANT CPA from a source other than from (A) the
1
“Terms appearing in all capital letters were defined in the
First Set. Freytag Decl., ¶2 and Exhibit A.” (footnote in
original).
PERSON whose OHIO NUMBER DEFENDANT CPA called or (B) that
PERSON’s creditor or alleged creditor:
A.
IDENTIFY (by name, address, and OHIO NUMBER) each
PERSON whose OHIO NUMBER DEFENDANT CPA called;”
Interrogatory No. 4(A):
“For all telephone calls DEFENDANT CPA made to an OHIO
NUMBER previously obtained by DEFENDANT CPA from a source
other than from (A) the PERSON whose OHIO NUMBER
DEFENDANT CPA called or (B) the PERSON’s creditor or
alleged creditor during which telephone calls DEFENDANT
CPA used an ARTIFICIAL OR PRERECORDED VOICE:
A.
IDENTIFY (by name, address, and OHIO NUMBER) each
PERSON whose OHIO NUMBER DEFENDANT CPA called;”
Request For Production No. 1(1):
“For all telephone calls DEFENDANT CPA made, using an
AUTODIALER, to an OHIO NUMBER previously obtained by
DEFENDANT CPA from a source other than from (A) the
PERSON whose OHIO NUMBER DEFENDANT CPA called or (B) that
PERSON’s creditor or alleged creditor, produce all
DOCUMENTS EVIDENCING (1) the name, address, and/or OHIO
NUMBER of each PERSON whose OHIO NUMBER DEFENDANT CPA
called;”
Request For Production No. 6(1):
“For all telephone calls DEFENDANT CPA made to an OHIO
NUMBER previously obtained by DEFENDANT CPA from a source
other than from (A) the PERSON whose OHIO NUMBER
DEFENDANT CPA called or (B) that PERSON’s creditor or
alleged creditor during which telephone calls DEFENDANT
CPA used an ARTIFICIAL OR PRERECORDED VOICE, produce all
DOCUMENTS EVIDENCING (1) the name, address, and/or OHIO
NUMBER of each PERSON whose OHIO NUMBER DEFENDANT CPA
called;
(Doc. 37 at 11-12).
Mr. Peters argues that the information
requested is both relevant and discoverable.
CPA filed an opposition to the motion to compel, arguing
that Mr. Peters is not entitled to this information for several
reasons.
First, CPA argues that because there is no longer a
case or controversy, it is not proper to seek discovery.
In
making this argument, CPA relies upon its pending motion for
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entry of judgment and to dismiss as moot.
(Doc. 36).
In that
motion, CPA argues:
Although Peters’ complaint is titled “Class Action
Complaint” and includes class allegations, Peters has to
date filed no motion to certify a class. Because CPA has
made an offer of judgment that provides Peters every form
of individual relief he seeks in his complaint, Peters’
claims are now moot and his complaint does not present a
case or controversy within the meaning of Article III of
the United States Constitution.
Id. at 1.
CPA also argues that because Mr. Peters no longer has
standing to pursue this litigation, his attorneys are improperly
using the discovery process to find a new client.
3).
(Doc. 40 at
Next, CPA argues that Mr. Peters has failed to articulate
why the discovery is needed to sustain his burden under Fed. R.
Civ. P. 23.
According to CPA, factual challenges to Mr. Peters’
discovery request arise because the putative class consists of
individuals who never had accounts with CPA, but who were
nevertheless contacted by it.
Thus, CPA maintains that “the
names and addresses on CPA’s accounts are necessarily names and
addresses of people who have nothing to do with this case and
have no knowledge of the calls made to other people CPA was
purportedly calling in error.”
Id. at 8.
For these reasons, CPA
asserts that the motion to compel must be denied.
Alternatively,
CPA argues that the motion should be briefed and decided after
the Court’s ruling on the motion to dismiss.
Mr. Peters filed a reply brief in support of his motion to
compel, which, inter alia, accuses CPA of “wield[ing] a
revisionary pen over the class definition” for “obviously
partisan purposes.”
(Doc. 42 at 6).
Mr. Peters clarifies that
the class definition proposed in the complaint is as follows:
All persons whose Ohio-area code (i.e., 216, 234, 330,
419, 440, 513, 567, 614, 740, 927) cellular telephone
number was called for a non-emergency debt collection
purpose by Defendant Credit Protection Association, L.P.
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using of an automatic telephone dialing system, an
artificial voice, and/or a prerecorded voice (all as
defined in the Telephone Consumer Protection Act) at any
time commencing four years prior to the date of the
filing of this action through the date of class
certification in this action where the person had not
previously given Defendant Credit Protection Association,
L.P. express consent to use such an automatic telephone
dialing system, an artificial voice, and/or a prerecorded
voice to make the call; but excluding Defendant CPA’s
agents and employees, the Judge and Magistrate Judge to
whom this action is assigned, and any member of such
Judge’s and Magistrate Judge’s immediate family or office
staff (“Class”).
(Doc. 2 at ¶34).
Mr. Peters maintains that the discovery at
issue tracks the class definition in the complaint and thus seeks
names and contact information for individuals called by CPA,
without regard to whether those individuals have accounts with
CPA.
Finally, Mr. Peters urges the Court to deny CPA’s request
for a stay, asserting that the “Court already has effectively
stayed most discovery” and the request “makes no sense where the
issues are now fully briefed and where Defendant CPA already
occasioned enough delay dating back to January 2014.”
(Doc. 42
at 10).
II.
Discussion
Because a stay of discovery would effectively moot the
motion to compel, the Court will first address the motion to
stay.
After doing so, the Court addresses the motion to compel.
A. The Motion to Stay
A stay of discovery for any reason is a matter ordinarily
committed to the sound discretion of the trial court.
Corp. v. Fedders Corp.. 643 F.2d 1229 (6th Cir. 1981).
Chrysler
In ruling
upon a motion for stay, the Court is required to weigh the burden
of proceeding with discovery upon the party from whom discovery
is sought against the hardship which would be worked by a denial
of discovery.
Additionally, the Court is required to take into
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account any societal interests which are implicated by either
proceeding or postponing discovery.
Marrese v. American Academy
of Orthopaedic Surgeons, 706 F.2d 1488, 1493 (7th Cir. 1983).
When a stay, rather than a prohibition, of discovery is sought,
the burden upon the party requesting the stay is less than if he
were requesting a total freedom from discovery.
Id.
However, one argument that is usually deemed insufficient to
support a stay of discovery is that a party intends to file, or
has already filed, a motion to dismiss for failure to state a
claim under Rule 12(b)(6) or motion for judgment on the
pleadings.
As one court has observed,
The intention of a party to move for judgment on the
pleadings is not ordinarily sufficient to justify a stay
of discovery. 4 J. Moore, Federal Practice § 26.70[2], at
461. Had the Federal Rules contemplated that a motion to
dismiss under Fed. R. Civ. Pro. 12(b)(6) would stay
discovery, the Rules would contain a provision to that
effect. In fact, such a notion is directly at odds with
the need for expeditious resolution of litigation....
Since motions to dismiss are a frequent part of federal
practice, this provision only makes sense if discovery is
not to be stayed pending resolution of such motions.
Furthermore, a stay of the type requested by defendants,
where a party asserts that dismissal is likely, would
require the court to make a preliminary finding of the
likelihood of success on the motion to dismiss. This
would circumvent the procedures for resolution of such a
motion. Although it is conceivable that a stay might be
appropriate where the complaint was utterly frivolous, or
filed merely in order to conduct a "fishing expedition"
or for settlement value, cf. Blue Chip Stamps v. Manor
Drug Stores, 421 U.S. 723, 741, 95 S.Ct. 1917, 1928, 44
L.Ed.2d 539 (1975), this is not such a case.
Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990).
See also Turner Broadcasting System, Inc. v. Tracinda Corp., 175
F.R.D. 554, 556 (D. Nev. 1997) (“a pending Motion to Dismiss is
not ordinarily a situation that in and of itself would warrant a
stay of discovery....”).
Thus, unless the motion raises an issue
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such as immunity from suit, which would be substantially vitiated
absent a stay, or unless it is patent that the case lacks merit
and will almost certainly be dismissed, a stay should not
ordinarily be granted to a party who has filed a garden-variety
dispositive motion.
When applying these principles, the occasions when this
Magistrate Judge has granted such a stay are few and far between.
When the Court has ordered a stay, the circumstances generally
indicated that some preliminary evaluation had been made of the
plaintiff’s claims and they had been found wanting, and that any
stay would be short.
See, e.g., Carter v. Wilkinson, 2009 WL
81217 (S.D. Ohio Jan. 9, 2009)(stay ordered where Magistrate
Judge had already issued a report and recommendation on the
dispositive motion and recommended dismissal of the claims
against 25 defendants); Miller v. Countrywide Home Loans, 2010 WL
2246310 (S.D. Ohio June 4, 2010) (stay ordered where many of the
plaintiff’s claims had been decided against him in another court
and where the potential for burdensome discovery was great).
Despite the fact that stays of discovery during the pendency
of dispositive motions are rarely granted, the Court does
consider each such motion on its individual merits.
As the Court
noted in Heartland Jockey Club Ltd. v. Penn National Gaming,
Inc., 2009 WL 5171829, *4 (S.D. Ohio Dec. 21, 2009),
This Court takes seriously its obligation to manage
discovery and recognizes that there are cases where the
plaintiff's claim is so tenuous, and the potential injury
to either private or societal interests from unfettered
discovery is so great, that the Court must limit or
preclude discovery in order to strike the proper balance
between the competing interests involved.
The circumstances present in this case do not appear to be such
that the discovery should limited or precluded in order to strike
the proper balance between the competing interests involved.
The District Judge assigned to this matter will rule on the
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motion to dismiss, and this Opinion and Order will not attempt to
predict what that ruling might be.
Because the cross-motion to
stay does not raise an issue such as immunity from suit, nor is
it patent that the case lacks merit and will almost certainly be
dismissed, a stay is unwarranted in these circumstances.
Consequently, CPA’s cross-motion to stay discovery will be
denied.
(Doc. 40).
B. The Motion to Compel
Prior to discussing the merits of the motion to compel, the
Court notes that S.D. Ohio Civ. R. 37.1, which supplements the
procedures mandated by Fed. R. Civ. P. 37, provides that
discovery-related motions shall not be filed unless all
extrajudicial means to resolve the differences have been
exhausted.
Once such extrajudicial means are exhausted, a party
may then seek an informal telephone conference with the Court.
See Watson v. Citi Corp., 2008 WL 3890034, at *2 (S.D. Ohio Aug.
19, 2008).
If, after the informal telephone conference, the
dispute remains unresolved, the party seeking the discovery may
then file a motion to compel pursuant to Fed. R. Civ. P. 37(a).
See S.D. Ohio Civ. R. 37.2.
The motion to compel shall be
accompanied by a supporting memorandum and a certification
informing the Court of the extrajudicial means that have been
attempted to resolve the dispute.
See id.
Here, Mr. Peters contends that he has made a good faith
effort to resolve the discovery dispute without judicial
intervention and CPA “has stubbornly refused to honor its
discovery obligations....”
(Doc. 37 at 3).
In support of the
motion, Mr. Peters filed the declaration of his attorney, Daniel
R. Freytag, which outlines the efforts undertaken to obtain the
requested discovery.
(Doc. 38).
CPA disputes that “the parties
have discussed these issues in good faith to the extent this
motion seeks the production of account information for thousands
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of accounts, especially the production of ESI.”
(Doc. 40 at 5).
CPA states:
CPA’s counsel remains willing to discuss those matters,
but the parties have not to CPA’s counsel’s knowledge
ever discussed matters related to ESI. The challenges
presented by ESI discovery, especially where, as here,
there are personal identifiers for thousands of persons
not even aware of this lawsuit, are enormous with
potentially far reaching consequences. Furthermore, to
the extent that the plaintiff is able to articulate a
reasonable need for any individual account information,
the parties should in good faith discuss the possibility
of a sampling to address Plaintiff’s needs and protect
the interests of those not a party to this lawsuit.
Id.
In reply, Mr. Peters characterizes CPA’s position as a
“strawman” based on the fact that the:
Motion does not seek access to individual account
information. The opening sentence in Plaintiff Peters’
argument references ‘the names and contact information of
putative
absent
class
members.’
Furthermore,
Interrogatory Nos. 1(A) and 4(A) and Request for
Production Nos. 1(1) and 6(1) only seek names, addresses,
and OHIO NUMBERs.
This is precisely the information
Defendant CPA has flatly refused to produce.
(Doc. 42 at 9)(internal citations omitted).
Moreover, Mr. Peters
contends that, at the August 14, 2014 status conference in this
matter, defense counsel agreed that “a discovery impasse existed
over this identification and contact information.”
Id.
Despite CPA’s arguments to the contrary, the Court finds
that Mr. Peters’ efforts constitute an attempt to resolve the
discovery dispute through extrajudicial means in compliance with
S.D. Ohio Civ. R. 37.1.
Indeed, consistent with Mr. Peters’
representation, counsel for both parties have discussed the
requested discovery during a status conference with this Court.
Because this dispute remains unresolved at this juncture, the
Court will consider the motion to compel on its merits.
In this case, the Court has, in its discretion, chosen to
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allow a limited amount of pre-certification discovery.
Consequently, Mr. Peters has been permitted to use the precertification discovery process to discover facts which pertain
to the prerequisites set forth in Rule 23(a), which include
numerosity, commonality, typicality, adequacy of representation
and counsel, and the requirements in Rule 23(b)(3), which are the
superiority of the class device and predominance of common
issues.
See Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th
Cir. 2012)(examining the prerequisites in Rule 23(a) and the
requirements in Rule 23(b)(3)).
The general principals of
discovery apply to pre-certification discovery.
Under Fed. R. Civ. P. 26(b)(1), any matter that is relevant,
in the sense that it reasonably may lead to the discovery of
admissible evidence, and is not privileged, can be discovered.
“Relevant information need not be admissible at trial if the
discovery appears reasonably calculated to lead to the discovery
of admissible evidence.”
Fed. R. Civ. P. 26.
On the other
hand, courts have discretion to limit or even preclude discovery
which meets the general standard of relevance found in Fed. R.
Civ. P. 26(b)(1) if the discovery is unreasonably duplicative, or
the burden of providing discovery outweighs the benefits, taking
into account factors such as the importance of the requested
discovery in resolving the issues, the importance of issues at
stake in the litigation, the amount in controversy, and the
parties’ resources.
See Fed. R. Civ. P. 26(b)(2).
As the movant, Mr. Peters bears the initial burden of
demonstrating that the information he seeks is relevant.
See
Guinn v. Mount Carmel Health Sys., 2010 WL 2927254, *5 (S.D. Ohio
July 23, 2010), quoting Clumm v. Manes, Case No. 2:08–cv–567
(S.D. Ohio May 27, 2010) (King, J.); see also Berryman v.
Supervalu Holdings, Inc., 2008 WL 4934007 (S.D. Ohio Nov. 18,
2008) (“At least when the relevance of a discovery request has
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been challenged the burden is on the requester to show the
relevance of the requested information.”) (internal citation
omitted).
If the Court finds that the information requested
appears to be relevant, CPA, as the party resisting production,
bears the burden of establishing that the information either is
not relevant or is so marginally relevant that the presumption of
disclosure is outweighed by the potential for undue burden or
harm.
See Vickers v. General Motors Corp., 2008 WL 4600997, *2
(W.D. Tenn. September 29, 2008).
Here, the information sought consists of the names and
contact information of putative class members.
Mr. Peters argues
that the:
potential class members have discoverable knowledge
regarding several disputed issues: (1) Defendant CPA’s
use of a predictive dialer (they would have experienced
the telltale pause upon answering while the call was
being transferred to a live debt collector), (2)
Defendant CPA’s use of an artificial or prerecorded voice
(they would have heard it upon answering and/or upon
replaying any voicemail left for them), and (3) damages
(the number of violations committed against them).
(Doc. 37 at 12).
Mr. Peters also urges that the names and
contact information are relevant to typicality under Fed. R. Civ.
P. 23.
In support of this position, Mr. Peters relies upon Kane
v. National Action Finance Services, Inc., 2012 WL 1658643 (E.D.
Mich. May 11, 2012), a decision which found that names and
contact information of putative class members are relevant and,
therefore, discoverable.
In Kane v. National Action Finance Services, Inc., 2012 WL
1658643 (E.D. Mich. May 11, 2012), plaintiff Michael Kane brought
a putative class action against defendant National Action Finance
Services, Inc. (“NAFS”) alleging, inter alia, that NAFS violated
the TCPA when it “called [his] cell phone ‘several hundred’ times
in an attempt to contact the unrelated Ms. Seana Barlett to
collect a debt she owned to Blockbuster Video.”
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Id. at *1.
In
ruling on Mr. Kane’s motion to compel, the Court ordered NAFS to
“disclose the names, addresses, and telephone numbers” requested
in the plaintiff’s interrogatories on the grounds that such
information was “relevant to the class action claims ... to
determine those other individuals whom NAFS may have contacted
improperly” and because “such disclosure is a common in the class
action context.”
Id. at *7, citing Artis v. Deere & Co., 276
F.R.D. 348, 351 (N.D. Cal. 2011).
In addition to Kane, Mr. Peters relies on other cases
outside of the Sixth Circuit to support the conclusion that the
names and contact information of putative class members are
relevant and discoverable.
See Doc. 37 at 13-14, citing Paulino
v. Dollar General Corp., 2013 WL 2444700, *3 (N.D. W. Va. June 5,
2013) (finding names and addresses of putative class members were
subject to disclosure because “the analysis of whether
Plaintiff’s claims are typical of those of putative class members
is largely fact-driven” and because “contact information is
necessary for Plaintiff to meet the commonality requirement”);
Putnam v. Eli Lilly and Co., 508 F. Supp. 2d 812, 813-14 (C.D.
Cal 2007)(recognizing that although “courts throughout the
country have come out on both sides of this issue,” but finding
that “on balance, this information should be provided”);
Khalilpour v. CELLCO Partnership, 2010 WL 1267749, at *2 (N.D.
Cal. Apr. 1, 2010)(finding that name and contact information
should be provided so that “Plaintiff can contact these
individuals to ascertain whether common questions of law exist,
and evaluate the typicality of claims between the Plaintiff and
other claimants”).
In opposition, CPA argues that using the “names and
addresses on CPA’s accounts” will not lead to the discovery of
admissible evidence.
The Court need not consider the merits of
this argument, however, because the discovery actually requested
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is the names and contact information for individuals called by
CPA, irrespective of whether those individuals were account
holders.
As opposed to the relevance of the discovery requested,
the vast majority of CPA’s argument focuses on its assertion that
Mr. Peters’ claims are moot.
CPA relies on a number of cases which stand for proposition
that once the class representative’s claims are determined to be
moot or otherwise dismissed, discovery is improper.
See, e.g.,
Gawry v. Countrywide Home Loans, Inc., 395 Fed. Appx. 152, 160
(6th Cir. 2010)(“under our precedent, because the named
plaintiffs’ claims were moot prior to moving for class
certification, and no exception to the mootness doctrine applies
to this case, the district court was ‘required’ to dismiss this
action”); In re Mortgagors of Temple-Inland Mortgage Corp., 2001
WL 177181, at *1 (E.D. Pa. Jan 24, 2001)(denying request to
continue without class representative when the named class
representatives were dismissed from the action prior to class
certification and subject matter jurisdiction had not been
established); Giannopoulos v. Iberia Lineas Aereas de España,
S.A., 2014 WL 2219143, at *1 (N.D. Ill. May 29, 2014)(denying
motion to re-open discovery and granting motion to dismiss for
lack of jurisdiction where the named plaintiffs did not have live
claims due to Court rulings and settlement).
The cases relied
upon by CPA are distinguishable from the instant case, however,
based upon the fact that this Court has yet to rule on the motion
to dismiss.
Here, CPA is asking this Court to proceed as though the
motion to dismiss has been granted, and that the motion to compel
is, in essence, a request to proceed with discovery absent a
class representative.
CPA does not set forth any legal basis
which would allow the Court to proceed in such a fashion, and, as
noted previously, this Court will not endeavor to predict what
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the ruling of the District Judge might be.
Because the Court has
not dismissed Mr. Peters’ claims on the grounds of mootness or
otherwise, there is no jurisdictional ban on allowing the
requested discovery to proceed at this stage of the litigation.
Further, the Court finds that the discovery sought is not
privileged and that it is relevant given the definition of the
class set forth in the complaint.
Based on the foregoing, the
motion to compel will be granted (Doc. 37), and CPA will be
directed to provide the requested discovery to Mr. Peters within
fourteen days.
III. Conclusion
For the reasons set forth above, CPA’s cross-motion to stay
discovery (Doc. 40) is denied.
Mr. Peters’ motion to compel
discovery is granted (Doc. 37).
CPA shall provide the requested
discovery to Mr. Peters within fourteen days.
IV. Motion to Reconsider
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).
The motion must specifically designate the
order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.
The District Judge, upon consideration of the
motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.
S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge
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