Samples et al v. National Financial Group, Inc.

Filing 14

INITIAL CASE MANAGEMENT ORDER: Motion to Amend Pleadings due by 5/29/2013. Discovery due by 9/6/2013. Dispositive Motions due by 10/4/2013. Signed by Magistrate Judge E. Clifton Knowles on 1/29/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
----------------------------------------------------STEPHEN SAMPLES and DENISE
SAMPLES,
Plaintiffs,
v.

Civil Action No. 3:12-cv-01199

NATIONAL FINANCIAL GROUP, INC.,
d/b/a THE RESOLUTION GROUP,
Defendant.
-----------------------------------------------------INITIAL CASE MANAGEMENT ORDER
I.

Jurisdiction and Venue This is an action brought under the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., The Plaintiff alleges that the
Court has jurisdiction under 15 U.S.C. § 1692k(d) and 28 U.S.C. § 1331. The
Defendant disputes that the FDCPA is applicable and therefore denies the alleged
basis for the Court’s jurisdiction. Venue is proper before this Court pursuant to
28 U.S.C. §1391(b), where the alleged acts giving rise to Plaintiffs’ action
occurred in this district, where Plaintiffs reside in this district, and/or where
Defendant transacts business in this district.

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II.

Parties’ Theories of the case
1. Plaintiffs’ Theory of the Case
In connection with the collection of an alleged debt in default, Defendant
placed a call to Plaintiffs’ residence on September 19, 2012 at 1:32 P.M., and left
the following voicemail message:
“Hi, this message is for Stephen or Denise Samples. Please
call Ms. Smith from the Resolution Group regarding your
date of finance, Direct Buy, as to the account, my phone
number is 888-388-8401. Again the number is 888-3888401. Thank you.”
In its September 19, 2012 voicemail message, Defendant failed to notify
Plaintiffs that the communication was from a debt collector.

In failing to

disclose that the communication was from a debt collector, Defendant failed to
meaningfully disclose its identity to Plaintiffs. Plaintiffs contend that
Defendant’s conduct as described violated the FDCPA at §§ 1692(6), and
1692e(11).
III.

Defendant’s Theory of the Case
The Resolution Group is a separate division of National Financial Group,
Inc. The Resolution Group only attempts to collect active accounts that are not in
default. At the time of The Resolution Group’s communications with Plaintiffs,
Plaintiffs’ account was not in default. The Resolution Group’s September 18,
2012, written correspondence to Plaintiffs clearly stated that Plaintiffs’ account

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was not in default and that Plaintiffs could have their membership benefits
reinstated by bringing their account current. The Resolution Group’s September
19, 2012, voicemail message stated that the call was regarding Plaintiffs’ “Beta
Finance, Direct Buy, active account.” Accordingly, The Resolution Group is not
a “debt collector” as defined under FDCPA and is therefore not subject to
FDCPA liability.
IV.

Schedule of Pretrial Proceedings
A. Rule 26(a)(1) Disclosure
The parties shall exchange their Rule 26 (a)(1)(A) through (E) disclosures by

February 15, 2013.
B. Meeting of Counsel and parties to Discuss Settlement Prospects
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C. Other Pretrial Discovery Matters
The target jury trial is February 4, 2014, and is
expected to last 1-2 days.
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All discovery shall be completed on or before September 6,
2013. All written discovery shall be submitted in sufficient time so that the response
shall be in hand by August 30, 2013. All discovery related motions shall be filed
on or before September 13, 2013. No motion related to discovery or for a
protective order shall be filed until a discovery/protective order dispute conference has
taken place in an effort to resolve the dispute and a jointly signed discovery/protective
order dispute statement is submitted setting forth precisely the remaining issues in
dispute and the reasons why those issues remain unresolved.
All dispositive motions shall be filed on or before
October 4, 2013, and any response thereto shall be filed on or before
October 25, 2013. Any reply shall be filed on or before
November 4, 2013.

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The deadline to file Motions to Amend the Pleadings is May 29, 2013.
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There shall be no stay of discovery pending disposition of any motions.
Interrogatories pursuant to Rule 33, Federal Rules of Civil Procedure, shall be
limited to sixty (60) such interrogatories. Subparts of a question shall be counted as
additional questions for purposes of the overall number.
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On or before June 19, 2013, the plaintiffs shall declare to the
defendant (not to file with the Court) the identity of her expert witnesses and provide all
the information specified in Rule 26(a)(2)(B).
On or before July 31, 2013, the defendants shall declare to the
plaintiffs (not to file with the Court) the identity of its expert witnesses and provide all
the information specified in Rule 26(a)(2)(B).

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Any supplements to expert reports shall be filed on or before
August 6, 2013. There shall not be any rebuttal expert witnesses.
It is so ORDERED
ENTERED this the ____ day of ________________, 2013.

Hon. E. Clifton Knowles
United States Magistrate Judge

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