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Susan Moore v. Firstsource Advantage

September 15, 2011


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court



Plaintiff Susan Moore filed this suit against Defendant Firstsource Advantage, LLC, for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). (Amended Complaint (Docket No. 16) ¶ 1.) Plaintiff alleges that Defendant, in attempting to collect a debt allegedly owed by Plaintiff's daughter, used prohibited telephonic communication methods, refused to abide by her request that Defendant stop calling her, and used tactics intended to annoy and harass her. (See Am. Compl. ¶¶ 16-27.) Plaintiff seeks actual, statutory, and treble damages, along with attorneys' fees and costs. (Am. Compl. at p. 5.)

Pending before this Court are the following: (1) Plaintiff's First Motion to Strike certain evidence from the record (Docket No. 31);*fn1 (2) Plaintiff's Second Motion to Strike certain evidence from the record (Docket No. 33);*fn2 (3) Plaintiff's Motion for Partial Summary Judgment (Docket No. 28);*fn3 and (4) Defendant's Motion for Summary Judgment.*fn4 (Docket No. 40.)

For the reasons stated below, this Court finds that Plaintiff's First Motion to Strike should be granted in part and denied in part, and that Plaintiff's Second Motion to Strike also should be granted in part and denied in part. This Court finds that Plaintiff's Motion for Partial Summary Judgment should be denied, and that Defendant's Motion for Summary Judgment also should be denied.

Defendant m oved to strike and re-file several subm issions it m ade to this Court on the ground that the subm issions inadvertently contained private inform ation. (Docket No. 38.) This Court granted Defendant's m otions. (Docket No. 39.) Accordingly, redacted versions of the following docum ents have been re-filed with new docket num bers: (1) Defendant's Motion for Sum m ary Judgm ent (Docket No. 27, re-filed at Docket No. 40); (2) Defendant's Response to Plaintiff's motion for partial sum m ary judgm ent (Docket No. 30, re-filed at Docket No. 41); (3) Defendant's Affidavit in Opposition to Plaintiff's first m otion to strike (Docket No. 35, re-filed at Docket No., 42); and (4) Defendant's Affidavit in Opposition to Plaintiff's second m otion to strike (Docket No. 36, re-filed at Docket No. 43).


A. Factual Background

The following facts are not in dispute. In 2007, Plaintiff Susan Moore used a cellular telephone with the number (716) 578-6206. (Plaintiff's Statement of Facts in support of Motion for Partial Summary Judgment (Docket No. 28, Ex. 2 ("Pl.'s Statement I")) ¶ 8; Defendant's Statement of Facts in Opposition to Motion for Partial Summary Judgment (Docket No. 41 ("Def.'s Statement I")) ¶ 10.) That phone number was given to Plaintiff to use by Plaintiff's daughter, Mia Moore, who had purchased a family cellular telephone package. (Pl.'s Statement I ¶¶ 1, 8; Def.'s Statement I ¶¶ 11-12.)

Defendant, an Indian-owned company, is in the business of debt collection. (Pl.'s Statement I ¶ 5; see Def.'s Statement I ¶ 8.) Defendant uses telephone calls as a means of collecting debts for Time Warner Cable*fn5 and other clients. (Pl.'s Statement I ¶5.)

On September 6, 2006, Time Warner Cable turned over an account to Defendant for collection. (Pl.'s Statement I ¶ 6; Def.'s Statement I ¶ 8.) Time Warner turned the account over to Defendant because the account was in default and Time Warner's internal collection efforts had been unsuccessful. (Defendant's Statement of Facts in support of its Motion for Summary Judgment (Docket No. 40, Ex. 2 ("Def.'s Statement II")) ¶¶ 5, 6, 9; Plaintiff's Response to Defendant's Statement of Facts in support of its Motion for Summary Judgment (Docket No. 32, Ex. 8 ("Pl.'s Statement II")) ¶¶ 5, 6, 9.)

The name on the account given to Defendant was Mia Moore, and the address listed on the account was 123 Holling Drive, Buffalo, New York. (Pl.'s Statement I ¶ 3; Def.'s Statement II ¶ 5; Pl.'s Statement II ¶ 5.) According to Defendant's call logs, the phone number on the account was (716) 578-6206. (Pl.'s Statement I ¶ 7; Def.'s Statement I ¶ 18.)

Beginning on September 6, 2006, Defendant began making calls to (716) 578-6206 to collect on Time Warner's account. (Def.'s Statement I ¶ 22; Pl.'s Statement I ¶¶ 6-7.) The calls continued into 2007. (Def.'s Statement II ¶¶ 22-23.) The calls were documented in Defendant's logs. (Pl.'s Statement I ¶ 10.) In calling the number, Defendant used two different automated systems called SoundBite and Blaster, which were capable of leaving prerecorded messages for the subject of the call. (Def.'s Statement II ¶¶ 20-21; Pl.'s Statement I ¶¶ 11-12.) Defendant also used live operators to make calls. (Def.'s Statement II ¶ 20.)

On June 29, 2007, Defendant received a call from a female caller, which Plaintiff alleges was herself. (Pl.'s Statement I ¶ 19; Def.'s Statement II ¶¶ 23-25.) During the call, the caller asked that the calls stop and stated she would be sending a cease and desist letter to Defendant. (Def.'s Statement II ¶ 24; Pl.'s Statement II ¶ 24.) The caller did not identify herself, and when identification was requested, she hung up. (Def.'s Statement II ¶ 25; Pl.'s Statement II ¶ 25.) Defendant did not receive a written request to stop the calls. (Def.'s Statement II ¶ 26; Pl.'s Statement II ¶ 26.) Defendant continued to call (716) 578-6206 in its effort to collect on the account. (Pl.'s Statement I ¶ 20.)

B. Procedural Background

Plaintiff filed this suit against Defendant on November 15, 2007. (Complaint (Docket No. 1).) Plaintiff alleges Defendant violated numerous provisions of the FDCPA and the TCPA. (Amended Complaint (Docket No. 16) ¶¶ 28-41.) Specifically, Plaintiff claims Defendant violated the FDCPA by attempting to collect from Plaintiff a debt she did not owe; by continuing to call her after she requested the calls stop; by calling her on her cellular phone; and by calling her with the intent of annoying or harassing her. (Am. Compl. ¶ 29.) Additionally, Plaintiff alleges that Defendant violated the TCPA by using an automated dialing system and/or an artificial or prerecorded voice to call her cellular phone, without her prior express consent. (Am. Compl. ¶ 33.) Plaintiff alleges Defendant's conduct was done intentionally and without justification, and that she has suffered emotional distress as a result. (See Am. Compl. ¶¶ 35-38.) Plaintiff seeks statutory and actual damages as provided under the FDCPA and TCPA. (Am. Compl. at p. 5.)

The parties appeared before the Honorable Jeremiah J. McCarthy, United States Magistrate Judge, to schedule discovery and trial. (Docket No. 8.) The original case management order provided that all fact depositions were to be completed by September 19, 2008, and that all discovery was to be completed by December 31, 2008. (Docket No. 9.) However, in February 2009, after the end of the discovery period, Plaintiff moved to extend the discovery deadline for another ninety days and to take a second deposition of Defendant's representative. (Docket No. 18.) Judge McCarthy denied this motion on the ground that Plaintiff had not shown good cause. (Decision and Order (Docket No. 21) at 4.)

Subsequently, both parties failed to file pre-trial statements by the March 26, 2009, deadline. (Docket No. 22.) The parties were called before this Court on April 15, 2009, to show cause for their failure to comply with the schedule. (Docket No. 23.) The parties explained that they had been attempting to mediate this dispute. (Docket No. 24.) At that time, this Court agreed to extend the time to complete discovery, with the admonition that no further extension requests would be considered. (Docket No. 24.) The amended case management order provided a June 15, 2009 deadline for dispositive motions. (Docket No. 26.)

On June 15, 2009, Plaintiff moved for partial summary judgment on her claims under the TCPA only. (Pl.'s Mot. Partial Summ. J. (Docket No. 28) at 1.) Defendant cross-moved for summary judgment on all of Plaintiff's claims. (Def.'s Mot. Summ. J. (Docket No. 40) at 1.) Plaintiff then filed two motions to strike certain evidence. (Docket Nos. 31, 33.)


A. Motions to Strike Evidence

In her first motion to strike, Plaintiff seeks an order striking the following categories of evidence: (1) portions of the affidavit of Edmund Rogers, along with the exhibits attached to Mr. Rogers' affidavit; (2) portions of the affidavit of Melissa Kotas, along with one exhibit attached to Ms. Kotas' affidavit; (3) portions of the attorney affidavit of Jason Botticelli (counsel for Defendant); (4) records from the Buffalo Municipal Housing Authority; and (5) certain Verizon telephone records. (First Mot. Strike (Docket No. 31) at 1.) In her second motion, Plaintiff reasserts her motion to strike the above evidence and also seeks to strike the affidavit of Timothy Segall. (Second Mot. Strike (Docket No. 33) at 1.) Defendant opposes the motions to strike. This Court will consider the two motions together.

1. Edmund Rogers Affidavit and Exhibits

Plaintiff contends that this Court should strike paragraphs 4 and 6 through 15 of the affidavit of Edmund Rogers, a Time Warner employee. (Docket No. 40, Ex. 12.) Plaintiff also moves to strike three Time Warner billing screens under the name Mia Moore that are attached as exhibits to Mr. Rogers' affidavit (Docket No. 40, Exs. 13-15 ("Mia Moore billing screens")). Plaintiff argues that Defendant failed to disclose Mr. Rogers' identity, or produce the Mia Moore billing screens, as required under the Federal Rules of Civil Procedure.

Under Rule 26(a)(1), a party is required to provide to the opposing party

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information -- along with the subjects of that information -- that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; [and]

(ii) a copy -- or a description by category and location -- of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment[.]

Fed. R. Civ. P. 26(a)(1). Additionally, under Rule 26(e),

A party who has made a disclosure under Rule 26(a) -- or who has responded to an interrogatory, request for production, or request for admission -- must supplement or correct its disclosure or response: . . . in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing[.]

Fed. R. Civ. P. 26(e)(1)(A). These rules make clear that a party is under an automatic and continuing duty to disclose witness identities, and to turn over or identify documents, that are supportive of the party's case or requested during the discovery process.

Defendant did not identify Mr. Rogers as a potential witness in its initial disclosure under Federal Rule of Civil Procedure 26(a)(1). (Docket No. 33, Ex. 2.) However, in its response to Plaintiff's interrogatories, Defendant stated that it "may call Mr. Ed Rodgers [sic] from Time Warner Cable to testify as to the manner and method of transferring the account data to Firstsource and the nature of the relationship between the two parties." (Docket No. 33, Ex. 4, at p. 7.) Defendant notified Plaintiff of Mr. Rogers' existence and potential testimony during the discovery period, and therefore complied with disclosure requirements. The motion to strike Mr. Rogers' affidavit will not be granted on the ground that Defendant failed to disclose Mr. Rogers' identity.

With respect to the Mia Moore billing screens, in its response to Plaintiff's interrogatories, Defendant generally stated that it might use documents containing "[a]ccount and address information for plaintiff's daughter, Mia Moore." (Docket No. 33, Ex. 4.) However, in its response to Plaintiff's request for production, which called for "[a]ny and all documents identified in Response to Plaintiff's Interrogatories" and "[a]ny and all documents in Defendant's possession or control, which Defendant claims, are relevant in any way to the subject matter of the instant lawsuit," (Docket No. 33, Ex. 3), Defendant did not turn over the Mia Moore billing screens.*fn6 Plaintiff asserts, and Defendant does not dispute, that Defendant did not precisely identify or produce actual copies of the Mia Moore billing screens prior to attaching them to the present motion for summary judgment.

Defendant does not offer any explanation for its failure to produce the Mia Moore billing screens. Instead, it contends that Plaintiff had "ample opportunity" to subpoena records from Time Warner to obtain this information. Under the rules, however, Defendant was required to identify and/or provide for inspection or copying those documents in its "possession, custody, or control" that were either responsive to Plaintiff's request for production or that Defendant might use to support its case. Fed. R. Civ. P. 26 & 34. It is undisputed that Time Warner and Defendant were parties to a written contract. (Docket No. 32, Ex. 5.) The contract included a mutual indemnification clause providing that each party would be required to cooperate with the defense of the other in the event of a third party suit. (Id. ¶ 10.) By virtue of this contractual relationship, Defendant is deemed to have "control" over documents in Time Warner's possession that are relevant to this case. See Sedona Corp. v. Open Solutions, Inc., 249 F.R.D. 19, 22 (D.Conn. 2008) (a party "controls," and therefore has an ongoing duty to produce, those documents it has the right (under a contractual relationship), authority, or practical ability to demand from a third party); In re Flag Telecom Holdings, Ltd. Sec. Litig., 236 F.R.D. 177, 180 (S.D.N.Y, 2006) (the term "control" is broadly construed in defining the scope of the disclosure requirement); Scott v. Arex, 124 F.R.D. 39, 41 (D.Conn. 1989) (same). Thus, Defendant had a duty to produce the Mia Moore billing screens either as part of its initial disclosures or in response to Plaintiff's request for production.

Under Rule 37,

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

Fed. R. Civ. P. 37(c)(1). A court should consider the following factors in determining whether exclusion of the non-disclosed evidence is proper: (1) the party's explanation for the failure; (2) the importance of the evidence; (3) the prejudice to the opposing party; and (4) the possibility of a continuance. Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006) (citing Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. ...

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