United States District Court, W.D. New York
DECISION AND ORDER
H. KENNETH SCHROEDER, Jr., Magistrate Judge.
This case was referred to the undersigned by the Hon. William M. Skretny, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters. Dkt. ##25 & 43.
Plaintiff commenced this action pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., alleging that defendant Eltman, Eltman & Cooper P.C. ("Eltman"), sent a collections letter on behalf of LVNV Funding, LLC ("LVNV"), which failed to fully disclose the amount of debt allegedly due, instead advising plaintiff that the amount due, "$2628.72 (Does not include all the interest)." Dkt. #1, ¶ 20. Plaintiff seeks to certify a class of individuals in New York who received substantially similar collection letters from defendants within one year prior to the filing of this action. Dkt. #1, ¶ 27.
Currently before the Court is plaintiff's motion for sanctions and a protective order (Dkt. #58); plaintiff's motion for an extension of time to complete discovery (Dkt. #74), plaintiff's second motion to compel and for sanctions (Dkt. #78); and LVNV's motion to bifurcate and/or stay discovery regarding LVNV's net worth pending resolution of LVNV's motion for summary judgment. Dkt. #88.
FACTS AND PROCEDURAL HISTORY
In a Decision and Order entered September 11, 2013, the Court granted plaintiff's motion to compel in so far as plaintiff sought disclosure of defendants' net worth and insurance coverage. Dkt. #56. Specifically, defendants were directed to immediately disclose "any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment" as required by Fed.R.Civ.P. 26(a)(1)(A)(iv), and to disclose, subject to a mutually acceptable protective order, audited financial statements and tax returns, including schedules, for the years 2009 through the present. Dkt. #56. In addition, in reliance upon defendants' representation that they would produce documents concerning the creation, approval and use of the form of the letter sent to plaintiff, the Court found moot that aspect of plaintiff's motion to compel.
By e-mail dated September 26, 2013, plaintiff's counsel reminded defendants' counsel that the insurance documents were required to be produced "forthwith" and attached two proposed confidentiality orders for consideration with respect to the remaining documents. Dkt. #58-1, p.24. Defendants' counsel responded that she "should be able to focus on this by early next week." Dkt. #58-1, p.25. Plaintiff's counsel followed up on his prior e-mail on October 3, 2013. Dkt. #58-1, p.26. By e-mail dated October 7, 2013, defendants' counsel responded that she was waiting for a response from her client and expected to be able to respond to plaintiff within a day. Dkt. #58-1, p.28. Defendants' counsel advised plaintiff's counsel, by voicemail at 5:38 p.m. on October 8, 2013, that she had "received authority... as to the form of the protective order" and wished to discuss document production. Dkt. #60, ¶ 7. Plaintiff filed the motion for sanctions at 6:14 p.m. on October 8, 2013. Dkt. #58. Plaintiff's counsel declares that he did not receive the voicemail message prior to the filing of the motion. Dkt. #63, ¶ 22.
Defendants's counsel responds that the Court's Order "did not provide a specific time limit with respect to the disclosure of the information governed by the Decision" other than to state that the insurance policies be disclosed "forthwith." Dkt. #60, ¶ 2. Defendants' counsel declares that the parties have agreed to the protective order and that defendant Eltman has gathered the information ordered to be disclosed by the Court. Dkt. #60, ¶¶ 10-11. However, defendant LVNV requests a stay of the Court's Order directing disclosure of its financial information pending resolution of its motion for summary judgment (Dkt. #61), which argues that it cannot be deemed a debt collector as that term is defined by the FDCPA and, in any event, was not involved in drafting the collection letter sent to plaintiff or calculating the amount due set forth in the collection letter, which it filed contemporaneously with its response to plaintiffs' motion for sanctions. Dkt. #64. LVNV states that it will provide its insurance policy. Dkt. #60, ¶ 13.
In reply, plaintiff's counsel declared that it had yet to receive the insurance policies or the financial documents. Dkt. #63, ¶ 4. Plaintiff's counsel notes that as a result of the delay in document discovery, plaintiff has not deposed defendants' representatives. Dkt. #64-1, ¶ 10. As a result, plaintiff's counsel moved to stay the motion for summary judgment on the ground that defendants have stymied discovery, thereby preventing plaintiff from obtaining the factual information necessary to respond to LVNV's argument that it is not a debt collector. Dkt. #64.
Plaintiff questions LVNV's representation in her declaration in support of it's motion for summary judgment that LVNV does not regularly collect or attempt to collect debts owed or asserted to be owed or due to another party with the fact that LVNV is licensed as a debt collection agency by the New York City Department of Consumer Affairs and has been the named plaintiff in more than 9, 0000 cases whose captions suggest that they are debt collection cases. Dkt. #64-1, ¶¶ 18-19. Plaintiff also argues that it should have the opportunity to conduct discovery regarding the complicated tangle of corporate entities plaintiff believes LVNV utilizes to collect the debts it has purchased. Dkt. #64-1, ¶¶ 21, 23 & 28. Until plaintiff understands LVNV's role in the collection of debts such as plaintiff's, plaintiff declares that he cannot adequately respond to LVNV's motion for summary judgment. Dkt. #64-1, ¶¶ 23-24 & 28.
Counsel for LVNV responds that staying the motion for summary judgment is not necessary because the financial documentation at issue is relevant only to damages, not liability. Dkt. #67, ¶ 2. LVNV agrees to permit a supplemental deposition on the limited issue of its financial net worth should its motion for summary judgment be denied. Dkt. #67, ¶ 8. LVNV argues that the other discovery issues can be completed before plaintiff's opposition to the summary judgment motion is due. Dkt. #67, ¶ 5.
By Text Order entered December 3, 2013, the Hon. William M. Skretny, Chief Judge, granted plaintiff's motion to stay briefing on LVNV's motion for summary judgment. Dkt. #71.
The protective order was entered on December 6, 2013. Dkt. #73. Defendant EEC produced documents relating to its net worth and insurance coverage on December 9, 2013. Dkt. #74-1, ¶ 11.
By motion filed December 9, 2013, plaintiff seeks an additional 120 days to complete discovery. Dkt. #74. Plaintiff's counsel declared that he has yet to receive any documents concerning the creation, approval and use of the form letter sent to plaintiff. Dkt. #74-1, ¶¶11-12. Moreover, plaintiff notes that defendants objected to every interrogatory and produced nothing in response to plaintiff's Second Set of Discovery Demands dated October 29, 2013. Dkt. #74-1, ¶¶ 13-14.
Defendants oppose an extension of the discovery deadline by more than 60 days. Dkt. #75, ¶ 2.
Plaintiff filed a second motion to compel and for sanctions on January 10, 2013. Dkt. #78.
On February 7, 2013, LVNV moved to bifurcate and stay discovery regarding damages. Dkt. #88.
DISCUSSION AND ANALYSIS
Effect of LVNV's Summary Judgment Motion on Discovery
Summary judgment may be sought at any time after a pleading is served. Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 573 (2d Cir. 2005); See Fed.R.Civ.P. 56(b) ("Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery."). Where, however, "a party facing an adversary's motion for summary judgment reasonably advises the court that it needs discovery to be able to present facts needed to defend the motion, the court should defer decision of the motion until the party has had the opportunity to take discovery and rebut the motion." Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 303 (2d Cir. 2003); See Fed.R.Civ.P. 56. "Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery." Id. at 303-04. Accordingly, the Court will consider plaintiff's outstanding discovery demands against LVNV within the context of relevancy to the legal issues presented in LVNV's motion for summary judgment, to wit, whether LVNV is a debt collector as defined in the FDCPA and whether LVNV was personally involved or can be vicariously liable for the drafting of the collection letter or calculation of the amount due.
First Motion To Compel
Net Worth Discovery ...