Waite v. Jonathan C. Frank & Associates, PLLC et al

Filing 15

OPINION AND ORDER granting in part and denying in part 14 Motion to Compel. Defendants are ORDERED to respond to Plaintiff's post-judgment interrogatories within 21 days. Signed by Magistrate Judge Kimberly A. Jolson on 6/3/2021. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LISA WAITE,
Plaintiffs,
v.
JONATHAN C. FRANK &
ASSOCIATES, PLLC et al.,

Civil Action 2:18-cv-1499
Judge James L. Graham
Magistrate Judge Jolson

Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Compel. (Doc. 14). For the reasons
that follow, Plaintiff’s Motion is GRANTED in part and DENIED in part. Defendants are
ORDERED to respond to Plaintiff’s post-judgment interrogatories within twenty-one (21) days
of this Opinion and Order.
I.

BACKGROUND
Plaintiff filed the instant action on November 21, 2018, claiming Defendants violated the

Fair Debt Collection Practices Act (“FDCPA”) when they called her and left a voicemail stating
they were processing claims against her and would have them “attached to [her] name and social
security number.” (Doc 1 at ¶ 8). Defendants were served with the Complaint and have thus far
failed to plead or otherwise defend this action. Accordingly, the Clerk entered default on January
30, 2021. (See Doc. 7; see also Fed. R. Civ. P. 55(a)). Plaintiff then moved for default judgment.
(Doc. 9). Plaintiff’s first motion was denied, as she failed to properly serve it on Defendants.
(Doc. 10). Shortly thereafter, however, the Court granted Plaintiff’s Second Motion for Default
Judgment, which was properly served on Defendants. (Doc. 12). Defendants did not respond to
either Motion.
In granting default judgment, the Court held that the allegations in Plaintiff’s Complaint

were “well-pled and state a sufficient basis for violations under the FDCPA.” (Id. at 2). The Court
further found that Plaintiff was entitled to an award of statutory damages in the amount of $1,000,
as well as $530 in costs, and $5,107.50 in attorney’s fees. (Id.).
In the instant Motion, Plaintiff seeks “an order compelling [] Defendants . . . to answer
[her] post-judgment interrogatories or pay the judgment.” (Doc. 14 at 1). Plaintiff also moves for
“an additional $1,275.00 in attorney’s fees expended as a result of Defendants’ refusal pay the
judgment and respond to post-judgment discovery.” (Id.). The time for Defendants to respond to
the Motion has long since passed. Accordingly, the Court will consider Plaintiff’s Motion as
unopposed and ripe for review.
II.

STANDARD
Rule 26(b) of the Federal Rules of Civil Procedure provides that “[p]arties may obtain

discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case.” Rule 37 of the Federal Rules of Civil Procedure permits a
discovering party to file a motion for an order compelling discovery if another party fails to
respond to discovery requests, provided that the motion to compel includes a certification that the
movant has in good faith conferred or attempted to confer with the party failing to respond to the
requests. Fed. R. Civ. P. 37(a). Rule 37 allows for a motion to compel discovery when a party
fails to answer interrogatories submitted under Rule 33 or to provide proper responses to requests
for production of documents under Rule 34. See Fed. R. Civ. P. 37(a)(1), (3).
“The proponent of a motion to compel discovery bears the initial burden of proving that
the information sought is relevant.” Gruenbaum v. Werner Enters., Inc., 270 F.R.D. 298, 302
(S.D. Ohio 2010) (citation omitted). “Relevant evidence” is evidence that “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.” Fed. R. Evid. 401. “While relevancy is broad, ‘district
courts have discretion to limit the scope of discovery [when] the information sought is overly broad
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or would prove unduly burdensome to produce.’” Plain Local Sch. Dist. Bd. of Educ. v. DeWine,
335 F.R.D. 115, 119 (N.D. Ohio 2020) (alteration in original) (quoting Surles ex rel. Johnson v.
Greyhound, Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)). At base, “the scope of discovery is
within the sound discretion of the trial court.” Stumph v. Spring View Physician Practices, LLC,
No. 3:19-CV-00053-LLK, 2020 WL 68587, at *2 (W.D. Ky. Jan. 7, 2020) (quotation marks and
citations omitted).
III.

DISCUSSION
Up front, the Court notes that Plaintiff has complied with Rule 37’s procedural requirement

to certify that she conferred with Defendants in an effort to avoid court action. See Fed. R. Civ.
P. 37(a)(1). Specifically, Plaintiff certifies that she served Defendants with her post-judgment
interrogatories via Priority Mail on August 14, 2020 and again via fax on October 12, 2020. (Doc.
14 at 2). On October 15, when she still had not received a response, Plaintiff called Defendant
Jonathan Frank’s office phone and left a voice message advising him that she planned to file a
motion to compel and to seek additional attorney’s fees. (Id.). Again, Defendants failed to
respond. Most recently, on November 12, Plaintiff mailed Defendants another copy of the postjudgment interrogatories, this time attaching a letter “advising [Defendants] that [she] would file
a motion to compel and for additional attorney’s fees if Defendants failed to respond to the postjudgment interrogatories or pay the judgment.” (Id. at 3). “Defendants failed to respond.” (Id.).
Rule 69(a) of the Federal Rules of Civil Procedure provides that “[i]n aid of the judgment
. . . the judgment creditor . . . may obtain discovery from any person, including the judgment
debtor, in the manner provided in these rules or in the manner provided by the practice of the state
in which the district court is held.” The scope of post-judgment discovery is broad and “‘the
judgment creditor must be given the freedom to make a broad inquiry to discover hidden or
concealed assets of the judgment debtor.’” Scioto Constr., Inc., v. Morris, No. 4:99-cv-83, 2007
WL 108906, at *2 (E.D. Tenn. Jan. 9, 2007) (quoting British Intern. Ins. Co., Ltd. v. Seguros La
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Republica, S.A. 200 F.R.D. 586, 588 (W.D. Tex. 2000)). Given this broad scope, a party may
utilize “any means of discovery allowable under the Federal Rules . . . , including
interrogatories[,]” when seeking post-judgment discovery. Id. (citing Sec. and Exch. Com’n v.
Tome, No. 81 CIV. 1836(MP), 1987 WL 9415, * 1 (S.D.N.Y. Apr. 3, 1987).
Here, Defendants “ha[ve] offered no [] reason for [their] failure to provide discovery nor
ha[ve] [they] provided any specific objection to any discovery request.” Ward v. Am. Pizza Co.,
279 F.R.D. 451, 457 (S.D. Ohio 2012).

In fact, despite being offered ample opportunity,

Defendants have completely failed to plead or otherwise defend in this action. Accordingly, given
the Court’s significant discretion over the scope of discovery, Plaintiff’s Motion to Compel is
GRANTED. Defendants are ORDERED to respond to Plaintiff’s post-judgment interrogatories
within twenty-one (21) days of this Opinion and Order. Should Defendants fail to comply with
this Order, the Court will then consider Plaintiff’s request for additional attorney’s fees.
IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s Motion is GRANTED in part and DENIED in part.

Defendants are ORDERED to respond to Plaintiff’s post-judgment interrogatories within twentyone (21) days of this Opinion and Order.
IT IS SO ORDERED.

Date: June 3, 2021

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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