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Covell v. Chiari & Ilecki, Llp

United States District Court, Second Circuit

July 11, 2013

CHIARI & ILECKI, LLP, DOES 1-10, Inclusive, Defendants.


HUGH B. SCOTT, Magistrate Judge.

This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C) (Docket No. 6). The instant matter before the Court is defendant Chiari & Ilecki, LLP's ("Chiari & Ilecki"), motion to for a protective Order to stay discovery (in particular, noticed depositions of defendant and its principal, William Ilecki) (Docket No. 31). Responses to this motion were due by July 3, 2013, and the motion was argued on July 9, 2013 (Docket No. 38), and the depositions at issue in this motion were stayed pending resolution of this motion (Docket No. 32).


This is a Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA" or the "Act"), action. Plaintiff alleges that defendant Chiari & Ilecki is a debt collector and defendants "Does 1-10" are collectors employed by Chiari & Ilecki (Docket No. 1, Compl. ¶¶ 5-6). Someone other than plaintiff (plaintiff's son, William James Covell, III) incurred a $4, 000 debt that defendants attempted to collect from plaintiff (see id. ¶¶ 8-11, 12). Chiari & Ilecki purchased the debt and obtained a judgment against the younger Covell (id. ¶¶ 10, 12). Plaintiff denies having any obligation to his son or owe his son's debt (id. ¶ 13). Plaintiff initially alleges that Chiari & Ilecki "instructed a sheriff's office in Jamestown, New York, to serve Plaintiff with documentation providing Plaintiff with two options: 1) pay the Debt in full voluntarily or 2) to be subjected to wage garnishment" (id. ¶ 14). After alleging that he suffered actual damages as a result (id. ¶¶ 15-16), plaintiff asserts that the FDCPA, 15 U.S.C. §§ 1692e (false or misleading representation generally), 1692e(10) (use of false representation to collect or attempt to collect a debt), 1692f (unfair practices generally), 1692f(6) (taking or threatening to take nonjudicial action to effect dispossession of property), was violated (id. ¶¶ 17-24).

After Chiari & Ilecki moved to dismiss (Docket No. 5), plaintiff filed a timely Amended Complaint (Docket No. 9; see also Docket No. 11 (redline and strike out draft version of Amended Complaint)) on September 4, 2012, see Fed.R.Civ.P. 15(a)(1)(B) (amendment as matter of course timely if filed within 21 days of service of Rule 12(b) motion). Aside from some cosmetic editing changes (cf. Docket No. 11), plaintiff amends the Complaint to specify the document that purported to initiate garnishment of plaintiff's wages (Docket No. 9, Am. Compl. ¶¶ 14-20). Plaintiff claims that he was served with an Income Execution on or about June 20, 2012 (id. ¶ 14), in the name of a "William Covell" and under the debtor's Social Security Number but naming plaintiff's employer, Office Max, for garnishment purposes (id. ¶¶ 15, 16-18). Plaintiff also was served with a letter (described in the initial pleading, cf. Docket No. 1, Compl. ¶ 14) which gave him the choices of voluntary payment or facing garnishment (Docket No. 9, Am. Compl. ¶ 19). Because the Income Execution named plaintiff's employer, plaintiff "believed that his wages would be garnished if he did not pay" (id. ¶ 20). The Amended Complaint also eliminated the New York State General Business Law unlawful deceptive practices claim (cf. Docket No. 11, Redline Am. Compl. at pages 4-5) and an FDCPA claim (cf. id. at page 4, deleting former ¶ 19, alleging claim under § 1692e(2)).

Defense Motion to Dismiss

Chiari & Ilecki argued that the original Complaint did not state a plausible claim (Docket No. 5, Def. Memo. at 7). This Court issued a Report & Recommendation recommending granting in part, but dismissing in part, Chiari & Ilecki's motion, leaving only claims that defendant violated 15 U.S.C. § 1692e(10) using any "false representation or deceptive means to collect or attempt to collect any debt" in dunning the wrong party (Docket No. 14). Chiari & Ilecki filed its Objections (Docket No. 15), which were rejected by Judge Arcara (Docket No. 19). Chiari & Ilecki then filed its Answer to the First Amended Complaint (Docket No. 22). The "Does 1-10" defendants have not appeared in this action.

Scheduling Conference and Defense Raising Rule 11 Sanctions

A Scheduling Conference eventually (cf. Docket Nos. 20, 24, 25) was held on April 15, 2013 (Docket No. 26), where defense counsel indicated that he may serve a Federal Rule of Civil Procedure 11 notice upon plaintiff and, if the action was not withdrawn, would move to dismiss the action and for sanctions (Docket No. 26). This Court then entered a Scheduling Order (Docket No. 27). The parties later jointly moved to opt out of this Court's mediation program (Docket No. 28), citing to defendant's prompt intention to file a motion for summary judgment (id., ¶ 4); that opt out motion was denied (Docket No. 29).

Present Motion for Protective Order

Plaintiff served notices to depose Ilecki (defendant's principal) and the Chiari & Ilecki firm's representative under Federal Rule of Civil Procedure 30(b)(6) on July 10, 2013 (Docket No. 31, Defs. Atty. Decl. ¶ 20, Ex. G; Docket No. 33, Pl. Atty. Decl. ¶ 4, Exs. C, D). Chiari & Ilecki planned to file its sanctions and dispositive motions on July 5, 2013, after serving the motions for sanction and for summary judgment upon plaintiff on June 12, 2013 (Docket No. 31, Defs. Atty. Decl. ¶¶ 11, 10). Chiari & Ilecki argues that, after being served with these motions, plaintiff served his deposition notices (id., ¶ 12). Chiari & Ilecki now moves to stay the depositions, claiming that it conferred or attempted to confer in good faith to avoid this motion (id., ¶ 3).

Plaintiff's counsel emailed defense counsel with a proposed date for these depositions but defense counsel responded that its served (but then had not filed) motions were dispositive and that depositions would not now be warranted. Plaintiff responded that he would move to compel these depositions. ( Id., ¶¶ 13-17, Exs. B-D.)

Chiari & Ilecki then filed its dispositive and sanctions motions on July 5, 2013 (Docket Nos. 35 (summary judgment), 36 (Rule 11 sanctions)).

Chiari & Ilecki argues the burden of conducting discovery when it intends to file a dispositive motion and that judicial economy would be better served to consider first its motions before allowing further discovery and depositions to go forward (Docket No. 31, Def. Atty. Decl. ¶¶ 22-23). Defendant quotes from another district which concludes that staying discovery while a dispositive motion is pending is an appropriate exercise of this Court's discretion (id. ¶ 24, quoting Chavous v. District of Columbia Fin. Responsibility & Mgmt. Assistance Auth. , 201 F.R.D. 1, 2 (D.D.C. 2001) (Robinson, Mag. J.) (staying discovery for both sides during pendency of both sides' dispositive motions)). Chiari & Ilecki argues that it has produced documents and answered Interrogatories (cf. Docket No. 33, Pl. Atty. Decl. ¶¶ 2-3, Exs. A, B) and concludes that there "is no good reason" to take these depositions (Docket No. 31, Def. ...

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