Laccinole v. MRS BPO, LLC

Filing 22

MEMORANDUM AND ORDER: Plaintiffs Motion for Summary Judgment, ECF No. 10, is DENIED, and his request for limited additional discovery, see ECF No. 17, is GRANTED in part. Therefore, Defendants Cross-motion for Summary Judgment, ECF No. 16, is DENIED in part without prejudice to refiling and GRANTED in part. Plaintiffs Motion in Limine, ECF No. 13, and Motion to Strike, ECF No. 20, are DENIED as MOOT.. So Ordered by District Judge William E. Smith on 9/29/2021. (Potter, Carrie)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
CHRISTOPHER LACCINOLE,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 20-475 WES
)
MRS BPO, LLC,
)
)
Defendant.
)
___________________________________)

MEMORANDUM AND ORDER
WILLIAM E. SMITH, District Judge
Plaintiff

Christopher

Laccinole

brings

fourteen

claims

against MRS BPO, LLC seeking damages and injunctive relief for
allegedly harassing debt collection calls. 1

Before the Court are

cross-motions for summary judgment, ECF Nos. 10, 16, and two
additional motions by Plaintiff:

Motion in Limine to Prevent

Defendant from Offering Testimony or Evidence Contrary to the
Admitted Requests for Admissions, ECF No. 13, and Motion to Strike,
ECF No. 20.

Finally, in his Objection to Defendant’s Cross-Motion

for Summary Judgment, Plaintiff asks for additional discovery
Specifically, he brings claims under the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et seq. (FDCPA); the
Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA); the
Rhode Island Fair Debt Collection Practices Act, R.I. G.L. § 1914.9 et seq. (RI FDCPA); the Rhode Island Deceptive Trade Practices
Act R.I. Gen. Laws § 6-13.9 (RI DTPA); the Rhode Island Right to
Privacy Statute R.I. Gen. Laws § 9-1-28.1.
1

pursuant to Rule 56 (d) of the Federal Rules of Civil Procedure,
should the Court reject his argument that the entirety of his state
court requests for admissions are deemed admitted by Defendant’s
failure to answer. See Plaintiff’s Objection to Cross-Motion for
Summary Judgment (“Pl.’s Obj.”) at 9-10, ECF No. 17.
For the reasons stated below, Plaintiff’s Motion for Summary
Judgment, ECF No. 10, is DENIED, and his request for limited
additional

discovery,

see

ECF

No.

17,

is

GRANTED

in

part.

Therefore, Defendant’s Cross-motion for Summary Judgment, ECF No.
16, is DENIED in part without prejudice to refiling and GRANTED in
part.

Plaintiff’s Motion in Limine, ECF No. 13, and Motion to

Strike, ECF No. 20, are DENIED as MOOT.
I. Plaintiff’s Requests for Admissions
Prior to removal, Plaintiff filed requests for admissions in
Washington County Superior Court.
ECF

NO.

12-1.

He

argues

See State Discovery Requests,

these

discovery

requests

revived

automatically after the conference held pursuant to Rule 26(f) of
the Federal Rules of Civil Procedure and a new clock began to run.
Pl.’s Obj. at 2.

Since Defendant never answered his requests for

admissions, he contends, all requested admissions must be deemed
admitted and taken as conclusive evidence by operation of Rule 36
of the Federal Rules of Civil Procedure.
Pl.’s Mot. Summ. J. 2, ECF No. 10-1.

Pl.’s Mem. Law Supp.

Plaintiff’s argument fails.

The “vast majority of courts” to

address the question have concluded that “requests served in a
state case need not be answered once the case is removed to federal
court, if the deadline to answer those requests did not lapse
before removal.”

Steen v. Garrett, No. 2:12-cv-1662, 2013 WL

1826451, at *2 (D.S.C. Apr. 30, 2013) (collecting cases).

See

also Hayes v. Tyson Foods, Inc., No. 18-CV-1324-EFM-ADM, 2019 WL
2473830, at *2 n.2 (D. Kan. June 13, 2019); Osborne v. Billings
Clinic, No. CV 14-126, 2014 WL 6769752, at *2 (D. Mont. Dec. 1,
2014); Sterling Sav. Bank v. Fed. Ins. Co., 2012 WL 3143909, at *2
(E.D. Wash. Aug. 1, 2012).

Requests served in state court are not

merely held in abeyance pending the Rule 26(f) conference, as
Plaintiff would have it, but rather rendered “null and ineffective”
after removal.

Billings Clinic, 2014 WL 6769752, at *2, (citing

Riley v. Walgreen Co., 233 F.R.D. 496, 499 (S.D.Tex.2005) and
Steen, 2013 WL 1826451, at *3).
As many courts have noted, this interpretation comports with
the plain language of Rule 26(d)(1), which states that a party
generally “may not seek discovery from any source before the
parties have conferred as required by Rule 26(f).”

Fed. R. Civ.

P. 26(d)(1); See, e.g., Billings Clinic, 2014 WL 6769752 at *2;
Steen, 2013 WL 1826451, at *3.
injunctions,

orders,

or

Because discovery requests are not

proceedings

of

a

state

court,

this

interpretation also agrees with a plain reading of 28 U.S.C. § 1450

(“All injunctions, orders, and other proceedings had in [a state]
action prior to its removal shall remain in full force and effect
until dissolved or modified by the district court”).

See Billings

Clinic, 2014 WL 6769752, at *2 (citing Sterling Sav. Bank, 2012 WL
3143909, at *2).
Even in the leading case to the contrary, Mann v. Metropolitan
Life Insurance Co., No. 99-CV-36, 1999 WL 33453411 (W.D. Va. July
9, 1999), the District Court ultimately exercised discretion and
refused to deem the requests admitted.

Cf. Ostrzenski v. Seigel,

177 F.3d 245, 252 (4th Cir.1999) (noting “federal rule policy of
deciding cases on the basis of the substantive rights involved
rather than on technicalities” (citation and quotation omitted)).
This Court finds the reasoning in the clear weight of authority
compelling

and

holds

that

removal

discovery requests null and void.

renders

pending

state-case

Such requests must be refiled

after a conference pursuant to Rule 26(f).
Because the entirety of Plaintiff’s factual record at summary
judgment consists of these purported admissions, his Motion for
Summary Judgment must be and is DENIED.
II. Plaintiff’s Request for Additional Discovery Pursuant to
Rule 56(d)
Rule 56(d) of the Federal Rules of Civil Procedure provides
that “[i]f a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify

its opposition, the court may: (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or to
take discovery; or (3) issue any other appropriate order.”

If the

party's inability to “adduce the facts essential to opposing
summary judgment” is due to incomplete discovery, the explanation
must: “(i) ‘show good cause for the failure to have discovered the
facts sooner’; (ii) ‘set forth a plausible basis for believing
that specific facts ... probably exist’; and (iii) ‘indicate how
the emergent facts ... will influence the outcome of the pending
summary judgment motion.’”

In re PHC, Inc. S'holder Litig., 762

F.3d 138, 143 (1st Cir. 2014) (quoting Resol. Tr. Corp. v. N. Bridge
Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994)).
The Court finds that on these facts, a pro se litigant’s
misunderstanding of a finer point of civil procedure constitutes
good cause for failing to conduct additional discovery.

Cf. Brown

v. Selwin, 250 F. Supp. 2d 299, 306 (S.D.N.Y. 1999) (“Although the
same standards apply when a pro se litigant is involved, the pro
se litigant should be given special latitude in responding to a
summary

judgment

motion.”

(internal

citations

omitted)), aff'd, 29 F. App'x 762 (2d Cir. 2002).

and

quotations

As noted above,

cases are better resolved on their merits then on a technicality
of procedure.
With one exception, however, Plaintiff’s request to reopen
discovery falls short at the second and third requirements.

His

broad statement that he “believes that additional facts exist and
can be retrieved within a reasonable time; and these facts will
suffice

to

defeat

the

pending

summary

judgment

threadbare recital of the legal standard.

motion”

Pl.’s Obj. 10.

is

a

It does

not show a plausible basis for believing that the specific facts
needed to stave off summary judgment probably exist.

It fails to

articulate how any specific areas of discovery would influence
analysis

of

Defendant’s

summary

judgment

motion.

This

is

especially true for those counts alleged under the FDCPA and its
state-law corollary, which appear to rest on two phone calls made
within

two

days

of

Plaintiff’s

cease-and-desist

letter

being

delivered to Defendant.
The

exception

to

this

general

insufficiency

lies

in

Plaintiff’s discussion of whether Defendant used an automatic
telephone dialing system (ATDS).

While Defendant has put forth

evidence that its system is not an ATDS, and summary judgment could
well be appropriate on the question later, Plaintiff has identified
this question as a specific factual dispute for further discovery.
Pl.’s

Obj.

at

9-11.

Furthermore,

the

first

two

counts

of

Plaintiff’s claims hinge on whether the system used by Defendant
constitutes an ATDS.
may

pursue

discovery

Therefore, the Court orders that Plaintiff
pertaining

to

the

question

of

whether

Defendant used an ATDS to call him and other discovery necessary
to support Counts I and II of his complaint.

III.

Conclusion

Defendant’s Cross-motion for Summary Judgment, ECF No. 16, is
DENIED without prejudice for those claims that depend on the use
of an ATDS (Count I, II) and GRANTED for all remaining counts.
Plaintiff’s Motion for Summary Judgment, ECF No. 10, is DENIED.
Plaintiff’s Motion to Strike, ECF No. 20, and Motion in Limine,
ECF No. 13 are DENIED as MOOT.

IT IS SO ORDERED.

William E. Smith
District Judge
Date: September 29, 2021