Ranzy v. Single N Corporation et al
Filing
126
ORDER GRANTING IN PART, DENYING IN PART 119 Opposed MOTION for Reconsideration, DENYING 120 MOTION for Leave to File Motion for Summary Judgment.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHERYL RANZY ,
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Plaintiff,
v.
EXTRA CASH OF TEXAS, INC., et al.,
Defendants.
CIVIL ACTION H-09-3334
O RDER
Pending before the court are Defendants Extra Cash of Texas, Inc., Z Cash of Texas, Inc.,
Z Holdings, Inc., Amigo Financial Services, LP, Amigo Capital, LLC, St. Croix Financial Services,
LP, St. Croix Capital, LLC, Edmundo Tijerina, and Cynthia Salinas’s (collectively, “Defendants”)
motion for reconsideration of the court’s order granting, in part, plaintiff Cheryl Ranzy’s motion for
summary judgement (Dkt. 119) and Defendants’ motion for leave to file a motion for summary
judgment (Dkt. 120). Having considered the motions, related documents in the record, and
applicable law, the court is of the opinion that the motion to reconsider (Dkt. 119) should be
GRANTED IN PART AND DENIED IN PART, and the motion to file a motion for summary
judgment (Dkt. 120) should be DENIED.
I. BACKGROUND
This case involves a payday loan for $500.00. Dkt. 85-1. Ranzy obtained the loan by
completing documents at the Wilcrest Drive location of Extra Cash of Texas, Inc. (“Extra Cash”)
on December 10, 2008. Id. Defendant Amigo Financial Services LP (“Amigo”) was the lender, and
Extra Cash was the Credit Services Organization, which arranged for the loan from Amigo. Id. The
loan plus $125.00 was due on December 31, 2008, but Ranzy could not afford to repay the loan at
that time. Id. Instead, she made payments of $125.00 every two weeks through March of 2009,
which the Extra Cash representative allegedly told her were loan renewal payments. Id. Ranzy
discontinued making the payments after she became ill and was unable to work. Id. In April 2009,
Extra Cash allegedly started making collection calls and writing letters demanding payment, and
otherwise engaging in allegedly unsavory collection practices. Id.
On October 15, 2009, Ranzy filed a complaint against Extra Cash and others asserting
various claims under the Texas Finance Code, the federal FDCPA, and RICO. Dkt. 1. Ranzy filed
her first amended complaint on December 15, 2009. Dkt. 9. On January 27, 2010, defendants filed
a motion to stay and compel arbitration. Dkt. 15. The court denied that motion on March 11, 2010.
Dkt. 24. On March 22, 2010, Ranzy amended her complaint to add claims on behalf of those
similarly situated as well as claims under chapter 393 of the Texas Finance Code and the Texas
Deceptive Trade Practices Act. Dkt. 28. On April 9, 2010, Defendants appealed the order denying
the motion to compel arbitration. Dkt. 35. The court stayed the case pending appeal. Dkt. 40. On
August 25, 2010, the Fifth Circuit affirmed this court’s order denying the motion to compel
arbitration. Dkt. 45. On October 7, 2010, the court entered a new agreed scheduling order, which
set the substantive discovery deadline on April 1, 2011 and the dispositive motion deadline on May
2, 2011. Dkt. 47. Ranzy filed her motion for class certification on February 15, 2011. Dkt. 84. On
March 31, 2011, Ranzy moved for the court to extend the substantive discovery deadline from April
1, 2011 until October 1, 2011. Dkt. 94. Defendants filed a response in opposition to the extension
of substantive discovery. Dkt. 95. Defendants noted that Ranzy’s “decision to wait to begin
substantive discovery . . . is within her sole discretion and evidences a strategy known only to her.
It is not, however, good cause and may not be used as a legitimate basis for extension fo the
discovery deadline.” Dkt. 95. The court entered an order extending the discovery deadline from
April 1, 2011 to May 27, 2011. Dkt. 102. At this point, neither Ranzy nor Defendants had moved
2
to change the other deadlines, and the court did not modify any other deadlines. Thus, the deadlines
set forth in the October 7, 2010 scheduling order still applied.
On April 29, 2011, Ranzy filed a motion for partial summary judgment. Dkt. 103. On May
2, 2011, which was the deadline for dispositive motions, defendants filed an opposed motion for
extension of time and modification of the scheduling order, in which they requested an extension of
the dispositive motion deadline. Dkt. 105. On the same day, they filed an opposed motion for leave
to file a motion for more definite statement. Dkt. 104. They attached a motion for more definite
statement, motion to dismiss, and motion for partial summary judgment to the motion for leave. Id.
In the motion for leave, they asserted that they could not adequately prepare a motion for summary
judgment until the court addressed their assertion, contained within the attached motion for a more
definite statement, that Ranzy’s claims sounded in fraud. Id. On May 16, 2011, defendants filed a
motion reurging their motion for an extension of time. Dkt. 108. The court issued an order
addressing Defendants’ motion for leave to file a motion for a more definite statements (Dkt. 104),
Defendants’ motion for a modification of the scheduling order (Dkt. 105), and motion reurging the
motion for a modification of the scheduling order (Dkt. 108) on September 22, 2011. Dkt. 114. The
court granted in part and denied in part the motion for leave to file a motion for a more definite
statement. Id. It deemed the motion for a more definite statement, which was attached to the motion
for leave, filed, and required that the plaintiff respond to the motion within twenty days. Id. The
court denied the motion to the extent it sought leave to file a motion to dismiss or motion for
summary judgment after the deadline. Id. It also denied Defendants’ motion for modification of the
scheduling order. Id. On December 21, 2011, the court entered an order denying the motion for a
more definitive statement (Dkt. 104-1) and partially granting Ranzy’s motion for partial summary
judgment (Dkt. 103). Dkt. 118. The court considered the motion for partial summary judgment
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unopposed, as the defendants did not file a response and did not file a motion for an extension of
time to respond. Id. However, Ranzy did not meet her burden of proof with regard to all issues, so
the motion was denied in part. Id.
Defendants filed a motion for reconsideration of the order granting Ranzy’s motion for partial
summary judgment on January 6, 2012. Dkt. 119. Three days later, on January 9, 2012, Defendants
filed a motion for leave to file a motion for summary judgment. Dkt. 120. This order addresses
these two motions. Defendants correctly note in their motion for reconsideration that the deadline
for their response to Ranzy’s motion for summary judgment passed on May 20, 2011, but they argue
that they could not respond to the motion for partial summary judgment because the court had not
ruled on the motion for a more definitive statement. Dkt. 119. They also acknowledge that the
deadline for dispositive motions has passed, but they argue that they were unable to move for
summary judgment within the dispositive motion deadline because discovery was still ongoing. Id.
Though the discovery deadline was on May 27, 2011, defendants and Ranzy had a discovery dispute
regarding discovery propounded on December 23, 2010, and they sought court intervention on May
10, 2011. This dispute was resolved after a hearing before Judge Johnson on June 17, 2011.
Defendants claim that Ranzy executed releases for her bank and medical records and documents
relating to other loans she had taken out after this discovery hearing. Id. Defendants claim that after
they received the releases, it took six month to obtain the relevant pay-day loan, bank and medical
records, and that it was a “arduous, expensive and time-consuming process.”1 Id. & Exh. 5.
Defendants also assert that they were unable to respond to Ranzy’s motion for summary
judgment because, though the court granted their request to file the motion for leave for a more
1
A review of Defendants’ counsel’s billing records indicates that some of the subpoenas were not drafted until
August 2011 even though Ranzy signed releases in June 2011. Dkt. 119, Exh. 5. This delay in seeking records no doubt
delayed the receipt.
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definite statement and ordered Ranzy to respond to the motion for a more definitive statement within
twenty days, it “did not provide Defendants with any additional time or the opportunity to file a
response following Plaintiff’s response.” Dkt. 119. Defendants argue that they needed to file an
additional response so that they could “fairly respond to Plaintiff’s motion for summary judgment.”
Id. Defendants, however, did not attempt to file a reply or seek leave to file a reply.
II. LEGAL STANDARD
A.
Motion to Reconsider
A party may file a motion to alter or amend a judgment under Federal Rule of Civil
Procedure 59(e). Fed. R. Civ. P. 59(e). A Rule 59(e) motion must be filed no later than 28 days
after the entry of judgment. Id. A motion to reconsider pursuant to Federal Rule of Civil Procedure
59(e) “is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have
been offered or raised before the entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 479
(5th Cir. 2004) (citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Rather, Rule
59(e) allows parties “to correct manifest errors of law or fact or to present newly discovered
evidence.” Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989). “Reconsideration of a
judgment after its entry is an extraordinary remedy that should be used sparingly.” Templet, 367
F.3d at 479. An “unexcused failure to present evidence available at the time of summary judgment
provides a valid basis for denying a subsequent motion for reconsideration.” Id. (citing Russ v. Int’l
Paper Co., 943 F.2d 589, 593 (5th Cir. 1991)).
B.
Filing of Motion for Summary Judgment After Dispositive Motion Deadline
A “district court has broad discretion in controlling its own docket, . . . [which] includes the
ambit of scheduling orders and the like.” Edwards v. Cass Cnty., Tex., 919 F.2d 273, 275 (5th Cir.
1990). A scheduling order may be modified only for good cause and with the judge’s consent.” Fed.
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R. Civ. P. 16(b)(4). “The good cause standard requires the ‘party seeking relief to show that the
deadlines cannot reasonably be met despite the diligence of the party needing the extension.’” S&W
Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003) (quoting 6A
Charles Alan Wright et al., Federal Practice and Procedure § 1522.1 (2d Ed. 1990)). A “court’s
refusal to allow the filing of a substantive motion on the eve of trial three months after the expiration
of a deadline . . . should normally be deemed well within the court’s discretion.” Edwards, 919 F.2d
at 275.
III. ANALYSIS
Defendants argue that they did not did not meet their deadlines for filing a motion for
summary judgment and a response to Ranzy’s motion for summary judgment because they needed
Ranzy to amend her complaint to meet the heightened pleading standards under Federal Rule of Civil
Procedure 9(b) before they could adequately address her claims. They state that they timely advised
the court of the necessity for a continuance within the 21-day timeframe for a response to Ranzy’s
motion for summary judgment by filing a motion for modification of the scheduling order on May
2, 2011, requesting resolution of the discovery dispute on May 10, 2011, and re-urging the motion
for a modification of the scheduling order on May 16, 2011. Additionally, they assert that they could
not file a motion for summary judgment or adequately respond to Ranzy’s motion for summary
judgment because Ranzy had not produced documents in response to their December 23, 2010
discovery requests, and the court did not require her to do so until after the dispositive motion
deadline. They complain that the court extended the discovery deadline without extending the
dispositive motion deadline or their deadline on their response to Ranzy’s motion for summary
judgment or their own motion for summary judgment. The Defendants also note that the court
terminated all pretrial deadlines on August 8, 2011 and cancelled docket call and that they have been
operating without a scheduling order ever since. They claim that this cancellation of deadlines
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caused “confusion over deadlines related to the Defendants’ Response to the Summary Judgment”
and that this has “predjudice [sic.] Defendants unfairly and provided the Plaintiff with a windfall
ruling that negates the large quantity of evidence which was finally obtained and which clearly
illustrates justiciable issues of material fact in every cause alleged by Plaintiff.” Dkt. 119.
A.
Motion for Leave to File Motion for a More Definite Statement
Defendants filed their motion for leave to file a motion for a more definite statement on May
2, 2011. Dkt. 104. In that motion, they argued that the claims in Ranzy’s third amended complaint
sounded in fraud and that the court should require her to meet the heightened pleading standard of
Federal Rule of Civil Procedure 9(b). Id. They noted that “these issues with regards to fraud must
be addressed and Defendants should have proper notice of same” before they could adequately
prepare a motion for summary judgment. Id. The court granted the motion for leave, in part, on
September 22, 2011, deemed the attached motion for a more definite statement filed, and gave Ranzy
twenty days from the date of the order to respond. Dkt. 114. Ranzy timely responded. Dkt. 115.
Defendants did not file a reply. On December 21, 2011, the court denied the motion to file a more
definite statement in the same order in which it granted in part and denied in part Ranzy’s motion
for partial summary judgment. Dkt. 118. Defendants now claim that the court’s failure to rule on
their motion to file a motion for a more definite statement until September 22, 2011, precluded them
from responding to Ranzy’s April 29, 2011 motion for partial summary judgment. Dkt. 119.
As the court understands this argument, the court’s failure to address Defendants’ motion for
a more definite statement until it entered the order partially granting Ranzy’s motion for partial
summary judgment precluded Defendants from responding to any of the arguments asserted in
Ranzy’s motion for partial summary judgment. The court ultimately denied the motion for a more
definite statement, so even if it had ruled on the motion to file the motion for a more definite
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statement and ruled on the motion for a more definite statement sooner, it would not have provided
defendants with any new arguments for their response to Ranzy’s motion for summary judgment.
Moreover, if Defendants needed an extension of time to respond to Ranzy’s motion for
partial summary judgment, they needed to ask for one. Under Federal Rule of Civil Procedure 56(d),
a court may defer considering a motion for summary judgment or allow the nonmovant additional
time to obtain affidavits or take discovery if the “nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d).
While the motion for leave to file a motion for a more definite statement advised that Defendants
believed they needed amended pleadings in order to file their own motion for summary judgment,
the motion did not advise that Defendants were unable to respond to Ranzy’s motion for partial
summary judgment. See Dkt. 104. Furthermore, even if the motion did advise the court that
Defendants did not believe they could respond to the motion for partial summary judgment until the
court ruled on the motion for a more definite statement, the proper procedural mechanism for
requesting an extension of one’s response time is to file a motion under Rule 56(d), not to bury such
a statement in a motion addressing a completely different matter.
Finally, even if the court had found merit in Defendants’ motion for a more definite statement
and required Ranzy to plead with more particularlity, this would not have helped defendants defend
against the claims on which the court granted summary judgement. The court granted Ranzy’s
motion for partial summary judgment on her claims against Extra Cash under section 393.201 of the
Credit Services Organization Act (“CSOA”) based entirely on the substance of the actual agreements
produced in this case—which were produced and provided to the court well before the dispositive
motion deadline. Dkt. 118. The court also granted Ranzy’s motion with regard to her Texas
Deceptive Trade Practices Act (“DTPA”), to the extent this claim was based on the violations of the
CSOA. Id. The only other claim for which the court found Ranzy met her summary judgment
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burden was Ranzy’s claim that Edmundo Tijerina could be held individually liable for the debts
associated with the violations of the CSOA and DTPA. Id. A more detailed complaint would not
have helped Defendants defend against this claim.
With regard to Defendants’ argument that they could not file a motion for summary judgment
until the court addressed their argument that Ranzy needed to state her claims with more
particularity, the court finds that this excuse is not “good cause” for modifying the scheduling order
to allow Defendants to file a motion for summary judgment at this late date. Obviously Defendants
were able to articulate a motion for summary judgment even though the court did not require Ranzy
to plead with more particularity, as they have attached a proposed 37-page motion to the motion to
file a motion for summary judgment. Dkts. 120, 120-2.
B.
Need for Discovery
Defendants next claim that they could not respond to Ranzy’s motion for partial summary
judgment and file their own motion for summary judgment because discovery was ongoing and they
were unable to secure necessary discovery and documents from Ranzy prior to the deadlines. Dkt.
119. Defendants were opposed to an extension of the discovery deadline as of April 11, 2011, when
they filed a supplemental response to Ranzy’s motion for an extension of the substantive discovery
deadline. Dkt. 98. Then, in their May 2, 2011, motion for an extension of time, Defendants stated
that they served additional discovery on Ranzy on April 27, 2011, and argued that the court should
extend the dispositive motion deadline so that their experts have time to review the new discovery.
Id. The court denied this motion. Dkt. 114.
Defendants have not demonstrated good cause for extending the dispositive motion deadline
to allow their very late motion for summary judgment, and they have not provided a believable
excuse for their failure to respond to Ranzy’s motion for partial summary judgment. If Defendants
needed more discovery before they could respond to Ranzy’s motion or file a motion for summary
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judgment, they should have acted sooner. First, Defendants did not move for an extension of the
dispositive motion deadline until the dispositive motion deadline—May 2, 2011. Thus, they left
themselves with no options for filing a motion for summary judgment should the court not grant the
extension. Second, Defendants claim that they had a discovery dispute with Ranzy stemming from
their December 2010 requests for production, but they did not advise the court about this discovery
dispute with Ranzy until May 10, 2011—which was after the dispositive motion deadline and only
ten days prior to the response date for Ranzy’s motion. Part of their argument as to why they are so
late in filing a motion to file a motion for summary judgment is that the court failed to rule on this
dispute until June 2011 and the process for obtaining the documents was “arduous, expensive, and
time consuming.” Dkt. 119. Defendants knew they did not have these documents long before the
dispositive motion deadline. If they needed the documents to file a motion for summary judgment,
they had plenty of time to seek the court’s intervention before the dispositive motion deadline, yet
they did not even inform the court about the dispute until ten days after the deadline. Third,
Defendants deposed Ranzy in late May 2011—after the deadline to respond to Ranzy’s motion for
partial summary judgment and well after the dispositive motion deadline. There was no need for
Defendants to wait until almost the close of discovery to obtain Ranzy’s deposition, especially when
they knew the dispositive motion deadline was before the scheduled close of discovery.2 Waiting
until the eleventh hour to obtain discovery was Defendants’ choice—it is the parties’ responsibility
to schedule discovery and depositions in order to have the materials they need in the timeframe
needed to adequately prepare their cases. This inadequate planning is not a sufficient excuse for
failing to respond to Ranzy’s motion for partial summary judgment, and it does not show that
2
W hile Defendants do not provide an excuse as to why they waited so long to obtain Ranzy’s deposition, the
court understands that Defendants may have attempted to do so before the dispositive motion deadline and Ranzy did
not cooperate. However, if Ranzy was unwilling to appear for a deposition in a timely manner before the dispositive
motion deadline, it would have been appropriate to seek court intervention by advising the court that Ranzy would not
agree to a deposition date and that Defendants needed to complete the deposition before the dispositive motion deadline.
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Defendants had good cause for failing to file a motion for summary judgment within the dispositive
motion deadline.
Moreover, the discovery received after the response deadline did not provide Defendants with
any evidence that would have altered the outcome of Ranzy’s motion for partial summary judgment,
and the evidence is insufficient to convince the court that there is good cause to allow Defendants
to file a motion for summary judgment eight months after the dispositive motion deadline. With
regard to their response to Ranzy’s motion for partial summary judgment, the items Defendants
claim they needed that were not within their exclusive control and that they did not receive until after
the dispositive motion deadline are (1) Ranzy’s deposition; (2) Ranzy’s medical records; (3) records
relating to Ranzy’s other payday loans; and (4) Extra Cash’s amended Texas Franchise Tax Public
Information Reports. Dkt. 119. As far as the medical records, payday loan records, and Ranzy’s
deposition, Defendants claim this discovery was necessary to show that Ranzy did not suffer any
medical or emotional damages as a result of the CSOA and DTPA violations alleged and that, as
such, her motion for summary judgment on those claims should be denied. Dkt. 119. First, the court
notes that it deferred ruling on damages, so Defendants will have the opportunity to present their
arguments with regard to damages at a later date.3 See Dkt. 118. Second, Ranzy did not argue in her
3
Defendants, relying on Elston v. Resolution Services, Inc., 950 S.W .2d 180 (Tex. App.— Austin 1997, no
writ), argue that the court incorrectly granted summary judgment on the CSOA and DTPA claims because there can be
no violation of Texas Finance Code section 393.201 unless Ranzy suffered actual damages. Dkt. 119. In Elston, the
Austin Court of Appeals addressed whether a plaintiff who had not shown he suffered actual damages could recover
statutory damages under the former version of Chapter 392, which deals with debt collection. Elston, 950 S.W .2d at 183.
The current version of Chapter 392 allows consumers to sue for injunctive relief and actual damages “sustained as a
result of a violation of [Chapter 392],” and if a person “successfully maintains an action” for actual damages or injunctive
relief, the person may recover attorneys’ fees and statutory damages. Tex. Fin. Code Ann. § 392.403 (Vernon 2006).
The former version is similar. See Elston, 950 S.W .2d at 183. The Elston court interpreted this section to mean that
statutory damages are not available if the person does not prove actual damages. Elston, 950 S.W .2d at 183. In Elston,
the plaintiff had been unsuccessful in his bid for injunctive relief, so the court did not address whether the plaintiff could
recover statutory damages if he was successful in obtaining injunctive relief but had not proven actual damages. Id.
However, the Dallas Court of Appeals addressed this very question in Marauder Corp. v. Beall, 301 S.W .3d 817 (Tex.
App.— Dallas 2009, no pet.), and it determined that successful maintenance of a suit for an injunction for a Chapter 392
violation gives rise to an award for statutory damages under section 392.403 of the Texas Finance Code. 301 S.W .3d
at 823. Here, the court granted summary judgment on Ranzy’s claims under chapter 393 of the Texas Finance Code,
not section 392. Thus, Elston and Marauder impact the analysis, but they are not directly on point. Chapter 393 does
not even have a statutory damages provision. It allows consumers to apply for injunctive relief for violations of the
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motion for partial summary judgment that her damages for the CSOA or DTPA claims were in any
way related to her medical or emotional condition. Instead, she stated that her damages were renewal
fees charged each time she was unable to pay back her original loan in full. Dkt 103. Ranzy’s third
amended complaint likewise characterizes the damages for the CSOA and DTPA violations as being
in the form of renewal fees.4 Dkt. 85-1. The only claim for which Ranzy sought summary judgment
in which she seeks medical expenses is the FDCPA claim—and the court did not grant summary
judgment on that claim. Id. While Defendants may have believed they needed the medical records,
payday loan records, and Ranzy’s deposition to defend against the FDCPA claim, they did not need
the information to defend against the other claims, so they certainly could have, and should have,
filed a partial response to those claims prior to receiving this discovery—within the deadline.
With regard to the claim that Defendants did not have the amended franchise tax public
information report before the response date to Ranzy’s motion, the court finds that this information
would have been relevant to Ranzy’s claim that Edmundo Tijerina is an officer or director of Extra
Cash, as the amended report—which Defendants claim they did not receive until August 29,
2011—shows that Eduardo Tijerina, not Edmundo Tijerina, was the president of Extra Cash. Dkt.
chapter, and it provides for actual damages, court costs, reasonable attorneys’ fees, and a potential award of punitive
damages if the consumer is “injured by a violation of this chapter.” Tex. Fin. Code Ann. §§ 393.502, 393.503. In its
order partially granting Ranzy’s motion for partial summary judgment, the court found that Extra Cash violated
subsection 393.201 of the Texas Finance Code, and it entered an injunction against further use of the form Extra Cash
used with Ranzy, which omitted important information required by the CSOA. Dkt. 118. W hether Ranzy is able to show
that she was “injured by a violation of [Chapter 393]” is as yet unknown. But she did show a violation of the chapter
and is entitled to the injunctive relief the court granted.
4
Defendants note that they “strongly object to the Plaintiff’s characterization of ‘renewal fees’ as actual
damages” because the fees “are not, in and of themselves, evidence of actual damages.” Dkt. 119. They argue that
Ranzy’s damages, “if any, are the result of [her] inability to pay [her] debts and attempts to collect those debts.” Id.
Then, they go into Ranzy’s medical condition, which they claim was preexisting. This is all inconsequential for the
purpose of the motion for reconsideration because whether Defendants agree with Ranzy’s characterization of her
damages or not, she did not seek damages for her medical condition under the CSOA or the DTPA, she sought the
renewal fees. So there was no need to go into her medical records in their response with regard to these claims, and the
fact that the medical records were not available until after the response date would have caused no prejudice to
defendants— if they would have timely responded without the records rather than completely disregarding the deadline.
They merely had to present their argument that renewal fees are not damages— a purely legal argument— and point to
the lack of evidence relating to medical or emotional damages. The burden of proof was on Ranzy.
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120-2, Exh. 16. However, Defendants filed the correction on February 14, 2011, and the Texas
Secretary of State certified that the certificate of correction had been filed on March 10, 2011. Dkt.
120-2, Exhs. 16, 16b. This was more than two months before the response date for Ranzy’s motion
for partial summary judgment. Thus, Defendants could have made their argument that Edmundo was
not an officer or director of Extra Cash and presented evidence in support of that argument on time.
Moreover, even if the Defendants felt they needed the amended certificates to support their
argument, the court had not yet ruled on Ranzy’s motion for partial summary judgment when they
received the amended certificate on August 29, 2011; Defendants could have filed a response, or a
motion for leave to file a response, at that time. Instead, they waited until January 2012 to apprise
the court of this development.
With regard to Defendants’ motion to file a motion for summary judgment, the claims
asserted in Defendants’ proposed motion either could have been asserted without the documents and
depositions or are otherwise grossly untimely. First, Defendants seek summary judgment on Ranzy’s
usury claims and cite the note, which was available long before the dispositive motion deadline, and
affidavits or depositions of Defendants or their employees. Dkt. 120-2. Defendants had access to
all of this information before the deadline. Second, Defendants seek summary judgment of Ranzy’s
claims under the CSOA and DTPA, and they rely on Ranzy’s deposition and medical records, which
were received after the dispositive motion deadline, to support their claim that Ranzy suffered no
damages under the CSOA and DTPA. Dkt. 120-2. However, Ranzy asserts that her damages
relating to these claims are the fees she was charged, which is unrelated to her medical or emotional
condition. Defendants could have asserted their legal argument with regard to the type of damages
required under the CSOA and DTPA prior to the dispositive motion deadline—they did not need
Ranzy’s medical records to make these arguments.
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Third, Defendants argue that the renewal fees are not unlawful under the CSOA, do not
constitute a breach of contract, and are not a deceptive trade practice under the DTPA or FDCPA,
and they rely on an expert report provided by Robert Wisner to support these claims. Dkt. 120-2.
The expert report, which provides a legal opinion with regard to these claims, is dated November
4, 2011. Dkt. 120-2, Exh. 13. Defendants’ expert reports were due on March 4, 2011. Dkt. 47. In
Defendants’ May 2, 2011 motion for modification or extension of the scheduling order, Defendants
sought an extension of their expert report deadline until June 24, 2011. Dkt. 105. The court
ultimately denied this motion, but even if it had granted the motion, the expert report on which
Defendants now seek to rely was filed well after the deadline that Defendants requested. This
reflects a complete lack of diligence on the part of Defendants and is an inadequate excuse for an
extension of the dispositive motion deadline. Moreover, the expert report simply provides legal
analysis; there is no reason why Defendants’ counsel could not have conducted the legal research
and analysis that is contained in the expert report herself—before the deadlines.
Fourth, Defendants argue in their proposed motion for summary judgment that Edmundo
Tijerina cannot be individually liable for Extra Cash’s debts because he is not an officer or director
of Extra Cash, and they rely on the amended certificate they received in August 2011 showing that
Eduardo Tijerina rather than Edmundo Tijerina owned Extra Cash.
Dkt. 120-2. However,
Defendants filed the correction to the certificate well before the dispositive motion deadline and
could have submitted the correction certificate as summary judgment evidence and met the deadline.
Moreover, like with the response, Defendants could have moved to file a motion for summary
judgment on this issue as soon as they received the amended certificate—in August or early
September of 2011—rather than waiting until January 2012.
Finally, Defendants argue in their proposed motion that the court should grant summary
judgment in their favor under the FDCPA because Extra Cash is not a “debt collector.” Dkt. 120-2.
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The term “debt collector” does “not ordinarily include creditors who, directly or indirectly, try to
collect debts owed them,” but it “does include any creditor who, in the process of collecting his
debts, uses any name other than his own which would indicate that a third person is collecting or
attempting to collect such debts.” Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232,
1234 (5th Cir. 1997). Defendants note that “if Extra Cash did refer to another name this was always
used in conjunction with the name ‘Extra Cash,’” and they rely on Ranzy’s May 2011 deposition
testimony as she testified that the person or persons who called or wrote attempting to collect the
debt always used the name “Extra Cash.” Id. This evidence, at most, creates an issue of material
fact with regard to Extra Cash’s status as a “debt collector” under the FDCPA. Even if the person
or persons attempting to collect the debt used the name “Extra Cash,” if they used the name in
conjunction with another name, it could have given the impression that a third person was attempting
to collect the debt. Thus, as the court ruled in its order granting in part and denying in part Ranzy’s
motion for partial summary judgment, there is an issue of material fact as to this claim. See Dkt.
118; see also Part III.E, infra (clarifying the ruling on Extra Cash’s status). Moreover, Defendants
knew that the dispositive motion deadline was on May 2, 2011, and if they needed Ranzy’s
deposition testimony to flesh out arguments relating to whether Extra Cash was a “debt collector”
under the FDCPA, they should have noticed Ranzy’s deposition sooner. Thus, their receipt of this
testimony after the dispositive motion deadline is not “good cause” to allow them to file a dispositive
motion at this time.
In sum, Defendants’ late receipt of the discovery cited in their motion to reconsider and
motion to file a motion for summary judgment resulted either from poor planning on the part of
Defendants, was inconsequential to the outcome of Ranzy’s motion for partial summary judgment,
or was unnecessary for Defendants to file an adequate, timely motion for summary judgment.
15
Accordingly, they have not shown that their failure to file a response and their tardiness in filing their
dispositive motion should be excused.
C.
Court’s Extension of Deadlines
Defendants complain that the court extended the discovery deadline without extending the
dispositive motion deadline or their deadline for their response to Ranzy’s motion for partial
summary judgment. Dkt. 119. On March 31, 2011, Ranzy moved for an extension of the substantive
discovery deadline, which was then set on April 1, 2011. Dkt. 94. Defendants were opposed to the
extension. Id. Thus, if the court had declined to extend the discovery deadline, as the Defendants
wanted, discovery would have concluded on April 1, 2011.5 Defendants did not move, in the
alternative, for an extension of the dispositive motion deadline if the court were to grant Ranzy’s
motion. Dkts. 95, 98. On April 19, 2011, the court granted Ranzy’s motion, in part, and provided
a brief extension of the discovery period until May 27, 2011. Dkt. 102. Though Defendants now
argue that it was unfair for the court the extend the discovery deadline without extending the
dispositive motion deadline or the deadline for their response to Ranzy’s motion, Defendants did not
seek an extension of the dispositive motion deadline until May 2, 2011—the date on which all
dispositive motions were due. Dkts. 47, 105. The court was never asked to extend the response date
for Ranzy’s motion for partial summary judgment. Thus, to the extent Defendants argue that the
court should have extended the dispositive motion deadline when it extended the deadline for
substantive discovery and should have extended its response date for Ranzy’s motion for partial
summary judgment, the court is not in the business of telling parties how to litigate their cases—if
Defendants needed an extension of the dispositive motion deadline, they should have asked for one,
5
The court finds this fact particularly interesting because Defendants now claim that the May deposition of
Ranzy was crucial to their case and that they were unable to file summary judgment without that deposition. Yet they
were strongly opposed to an extension in the discovery deadline that provided them with the opportunity to depose Ranzy
in M ay.
16
done so before the deadline was at hand, and provided the court with a good reason for extending
the deadline. Since Defendants were opposed to an extension of the discovery deadline as of April
11, 2011 (see Dkt. 98), and they knew at this time that the dispositive motion deadline was on May
2, 2011, it makes absolutely no sense for them to now argue that they needed additional discovery
in order to file a dispositive motion on May 2, 2011. And it makes even less sense for them to argue
that the court should have somehow divined that they were going to need more time to file a
response to Ranzy’s motion for summary judgment because the discovery deadline was extended,
when they did not want more discovery in the first place.
D.
Confusion Over the Cancellation of Docket Call and Termination of Deadlines
On August 1, 2011, which was three months after Ranzy filed her motion for summary
judgment and more than two months past Defendants’ deadline to respond, the court terminated all
deadlines and cancelled docket call pending rulings on the outstanding motions. See Dkt. (Aug. 1,
2011). The outstanding motions included Defendants’ motion for leave to file a more definite
statement, motion for extension of time, motion reurging the motion for an extension of time,
Ranzy’s motion for partial summary judgment, and Ranzy’s motion for class certification. Dkts. 84,
103, 104, 105, 108. Defendants claim that this termination of deadlines caused “confusion over
deadlines related to the Defendants’ Response to the Summary Judgment” and that this unfairly
prejudiced Defendants. Dkt. 119. The purpose of the August 1, 2011 docket entry cancelling
deadlines was to cancel docket call, which was scheduled for August 26, 2011, since the court had
not yet ruled on the motions and the disposition of many of the issues contained in these outstanding
motions would have a substantial impact on trial preparation. The response dates for all outstanding
motions had passed months prior to this docket entry. The terminated deadlines related to the joint
pretrial order and objections to witness lists and exhibits, which were to be filed by August 12, 2011,
and August 19, 2011, respectively, and were no longer necessary since docket call was cancelled.
17
See Dkt. 47 (Agreed Scheduling Order). If Defendants were confused about this, they simply needed
to call the Case Manager or send a letter to the court seeking clarification.
Defendants also complain that when the court granted, in part, their motion to file a motion
for a more definite statement, the court allowed Ranzy to respond to the motion but did not provide
Defendants with the opportunity to reply. This is incorrect. The court’s order granting, in part,
Defendants’ motion instructed Ranzy that she must respond within 20 days of the order. It did not
preclude Defendants from filing a reply. The court’s procedures specifically state that “reply briefs
filed by movants will be considered if submitted before the court rules on the motion. Generally,
reply briefs should be submitted within five (5) days after the non-movants’ response to the motion
is filed.” Judge Miller’s Procedures 6.A.4, available at http://www.txs.uscourts.gov/district/judges/
ghm/procedures.htm. Even if Defendants were confused because the court terminated deadlines on
August 1, 2011, the court procedures clearly state that reply briefs will be considered if received
before the court rules on the motion; thus, there is, in effect, no deadline if the court has not yet
ruled. Moreover, even if Defendants did not understand this rule, they could have filed a motion
seeking leave to file a reply. They did not.
In sum, any confusion experienced by Defendants relating to the cancelled deadlines or their
ability to file a reply to Ranzy’s response to their motion for a more definite statement was
unjustified and does not provide a sufficient excuse for failing to respond to Ranzy’s motion for
partial summary judgment and for missing the dispositive motion deadline months before.
E.
Extra Cash’s Status as a Debt Collector Under the FDCPA
The court held in its order partially granting Ranzy’s partial motion for summary judgment
that Ranzy had not met her burden of showing that Extra Cash was a debt collector under the
FDCPA. See Dkt. 118 at 20. However, on page 15 of the order, the court stated, “Finally, the court
finds Ranzy is a consumer, and Extra Cash a debt collector, under the FDCPA.” Id. at 15. This
18
sentence was erroneously included in the order. There is clearly a question of fact with regard to
Extra Cash’s status under the FDCPA that will need to be determined by the trier of fact.
Accordingly, Defendants’ motion to reconsider is GRANTED to the extent it seeks clarification of
this issue.
IV. CONCLUSION
Defendants’ motion for reconsideration (Dkt. 119) is GRANTED IN PART AND DENIED
IN PART. It is GRANTED with respect to Defendants’ request that the court clarify its holding with
regard to Extra Cash’s status under the FDCPA. There is a question of fact with regard to whether
Extra Cash is a debt collector under the FDCPA. Defendants’ motion to reconsider is DENIED in
all other respects. Defendants’ motion to file a motion for summary judgment (Dkt. 120) is likewise
DENIED. This case is now ripe for trial. The parties shall contact the court’s case manager upon
receipt of this order to schedule a trial date.
It is so ORDERED.
Signed at Houston, Texas on March 22, 2012.
___________________________________
Gray H. Miller
United States District Judge
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