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Armamburu v. Healthcare Financial Services

July 6, 2007

ELAINA ARMAMBURU, PLAINTIFF,
v.
HEALTHCARE FINANCIAL SERVICES, INC., DEFENDANT.



The opinion of the court was delivered by: Go, United States Magistrate Judge

ORDER

By letter dated March 10, 2006 (ct. doc. 50-1), Lawrence Katz, counsel for plaintiff Elaina Armamburu, seeks to compel discovery and requests sanctions against the defendant for failure to produce financial documents and a list of prospective class members. Defendant Healthcare Financial Services, Inc. ("HFS") in its opposition papers dated March 29, 2006 states that it "has provided all financial documentation as requested through either formal discovery demands or as requested by the Court in numerous settlement conferences." Affirmation of David J. Gold, Esq. ("Gold Affirm.") (ct. doc. 51-1) at ¶ 10. For the following reasons, plaintiff's motion to compel is granted and plaintiff's request for sanctions is granted to the extent as follows.

BACKGROUND

Plaintiff brings this case against defendant for violation of the Fair Debt Collection Practices Act ("FDCPA"). On April 14, 2005, the Honorable Allyne R. Ross granted plaintiff's motions for summary judgment and class certification. See ct. doc. 35. The parties were directed to complete discovery regarding prospective class members and damages by January 24, 2006. See minute entry dated 11/17/05. On numerous occasions throughout the discovery process, plaintiff has sought the Court's intervention in obtaining responses to its outstanding discovery requests.

Requests for Documents

In a letter dated October 17, 2003, plaintiff moved to compel responses to its First Set of Requests for Admissions, Interrogatories, and Requests for Production of Documents served on March 26, 2003 pertaining to prospective class members and defendant's financials, and for sanctions. See ct. doc. 50-4, Exh. C. At a conference on October 22, 2003, I ordered defendant to respond to plaintiff's interrogatories 7 through 9. See minute entry dated 10/22/03. In a letter dated March 26, 2004, plaintiff again sought to compel defendant to provide the names and addresses of prospective class members and requested sanctions against the defendant for its failure to comply with the Court's October 22, 2003 order. See ct. doc. 50-4, Exh. E. At a conference on April 28, 2004, I ruled that defendant's responses to plaintiff's interrogatories 7 through 9 were inadequate and directed defendant to produce a witness for deposition. See minute entry dated 04/28/04 and endorsed order dated 04/30/04.

In a letter dated July 13, 2005, plaintiff served defendant with a request for specific financial documents. See ct. doc. 50-5, Exh. G. At a conference on July 14, 2005, I ordered defendant to provide the requested financial documents by August 18, 2005. See minute entry dated 07/14/05. Thereafter, during several telephone conferences I ordered the defendant to: "promptly provide additional information to corroborate the information set forth in its financial statements," see minute entry dated 08/24/05; "promptly provide tax returns and ledgers," see minute entry dated 09/22/05; "provide the supporting documentation discussed within one week and tax returns immediately," see minute entry dated 10/12/05; and, "produce additional documents re[garding] its financial condition," see minute entry dated 10/25/05.

Most recently, on February 28, 2006, I denied without prejudice plaintiff's prior letter request dated January 16, 2006 (ct. doc. 43) for sanctions based on defendant's alleged failure to comply with discovery requests and orders of the Court. See minute entry dated 2/28/06. Plaintiff was given a final opportunity to file the herein motion to compel. See id.

Rule 30(b)(6) Deposition

Plaintiff deposed defendant's representative, John G. Chipko, on May 24, 2004. However, plaintiff asserts that the witness gave "evasive answers." See Affirmation of Lawrence Katz, Esq. ("Katz Affirm.") (ct. doc. 50-2) at ¶ 7. Therefore, plaintiff sought to conduct an additional deposition and on January 12, 2006*fn1 served defendant with a notice to depose a representative on January 23, 2006 as to the number of class members and their identity, defendant's net worth, and the names of the creditors upon whose behalf such collection letters were sent. See ct. doc. 51-2. Defendant claims that it received plaintiff's notice "three (3) days (including a weekend)" before the noticed deposition date and was therefore unable to produce a witness on such short notice. Gold Affirm. at ¶ 18.

DISCUSSION

Motion to Compel

A party may move to compel under Rule 37(d) for failure to respond to interrogatories and document requests. See Fed. R. Civ. P. 37(d). If the motion is granted, a court may impose the sanctions available under Rule 37(b)(2). Id. In addition, a party may challenge an opponent's failure to provide automatic disclosures or to answer specific discovery requests in a motion under Rule 37(a)(2)(A) and seek sanctions enumerated under Rule 37(a)(4). See Fed. R. Civ. P. 37(a).

Plaintiff moves to compel the production of documents based on defendant's failure to produce previously demanded and Court ordered documents. Specifically, plaintiff seeks information regarding prospective class members, shareholders' compensation, transfer of assets, further ...


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