United States District Court, W.D. New York
MICHAEL HALLMARK, on behalf of himself and all others similarly situated, Plaintiff,
COHEN & SLAMOWITZ, MIDLAND FUNDING LLC, Defendants.
BROMBERG LAW OFFICE, P.C. BRIAN L. BROMBERG, JONATHAN R. MILLER, of Counsel Attorneys for Plaintiff.
LAW OFFICES OF KENNETH HILLER, PPLC SETH ANDREWS, of Counsel Amherst, New York, Attorneys for Plaintiff.
CONNELL FOLEY LLP ANDREW C. SAYLES, of Counsel Roseland, New Jersey. Attorneys for Defendant Cohen & Slamowitz, LLP.
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP THOMAS A. LEGHORN, of Counsel New York, New York, Attorneys for Defendant Midland Funding, LLC.
DECISION and ORDER
LESLIE G. FOSCHIO, Magistrate Judge.
By order of Hon. William M. Skretny filed November 10, 2011 (Doc. No. 9) this matter was referred to the undersigned for all non-dispositive pretrial matters. It is before the court on Plaintiff's Fourth Motion to Compel Discovery filed October 3, 2014 (Doc. No. 230).
Plaintiff's Fourth Motion to Compel Discovery was filed October 3, 2014 (Doc. No. 230) ("Plaintiff's motion") together with the Declaration of Jonathan R. Miller in Support of Plaintiff's Fourth Motion to Compel Discovery ("Miller Declaration") (Doc. No. 231), including exhibits A - I ("Miller Declaration Exh(s). ___") and a Memorandum of Law in Support of Plaintiff's Fourth Motion to Compel Discovery (Doc. No. 232) ("Plaintiff's Memorandum").
Defendant Midland Funding LLC d/b/a Midland Funding of Delaware, LLC ("Midland") filed on October 29, 2014, its Memorandum Of Law In Opposition To Plaintiff's Fourth Motion To Compel Discovery (Doc. No. 238) ("Midland's Memorandum") along with the Affidavit of Kyle Hannan In Opposition To Plaintiff's Fourth Motion To Compel (Doc. No 239) ("Hannan Affidavit"). Also on October 29, 2014, Cohen & Slamowitz, LLC ("C&S") filed the Memorandum Of Law On Behalf Of Defendant Cohen & Slamowitz, LLP, In Opposition To Plaintiff's Fourth Motion To Compel (Doc. No. 240) ("C&S's Memorandum"), the Supplemental Declaration Of Andrew C. Sayles, Esq. In Support [ sic ] Opposition To Plaintiff's Fourth Motion To Compel (Doc. No. 241) ("Sayles Supplemental Declaration"), together with exhibit A ("Sayles Declaration Exh. A").
On December 2, 2014, Plaintiff filed, under seal, the Reply Declaration of Jonathan R. Miller in Further Support of Plaintiff's Fourth Motion to Compel Discovery (Doc. No. 249-1) ("Miller Reply Declaration") together with exhibits A-C ("Miller Reply Declaration Exh(s). ___") and a redacted copy of the Reply Memorandum of Law in Further Support of Plaintiff's Fourth Motion to Compel Discovery ("Doc. No. 244) ("Plaintiff's Reply Memorandum"), unredacted copies of which were provided to the court for its in camera consideration. Oral argument was conducted on December 3, 2014 (Doc. No. 250). In response to questions addressed to Plaintiff by the court at oral argument, Plaintiff provided a letter dated December 5, 2014 (Doc. No. 251) ("Plaintiff's December 5, 2014 Letter") and on December 8, 2014 an amended letter dated December 8, 2014 (Doc. No. 253) ("Plaintiff's December 8, 2014 Letter") with a request to submit as exhibits A and D, copies of credit card documents pertinent to Plaintiff's account with HSBC ("Plaintiff's December 8, Letter Exh(s) ___"). At the direction of the court on December 30, 2104, Plaintiff's December 8, 2014 Letter and Exhs. A & B were filed under seal (Doc. No. 253). By Text Order filed December 24, 2014 (Doc. No. 252), the parties were directed to submit additional briefing as to whether, based on Judge Skretny's rejection of Defendant's contractual authorization contention in connection with the court's denial of Defendant's motion for judgment on the pleadings, Plaintiff's motion seeking such documents was moot.
In this class action brought pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1582, et seq., Plaintiff's motion seeks to compel Defendants' production of all requested agreements, including applications for credit cards, assignments of credit cardholder agreements, contracts and similar instruments, which Defendants claim authorize collection, by legal action or otherwise, of court filing fees against 10, 250 class members ("the requested agreements"). Plaintiff's motion also seeks production of transcripts of depositions of Defendants' employees and employees of Midland Credit Management, Inc. ("MCM"), an affiliate of Defendant Midland and a non-party, which manages the collection of charged off credit card debts acquired by Midland from the original issuers or creditors conducted from 2006 to the present and, from Defendant C&S, copies of training manuals and materials used by C&S's employees in conducting debt collection activities on behalf of Midland and MCM.
Plaintiff's suit was certified by Judge Skretny as a class action pursuant to Fed.R.Civ.P. 23 ("Rule 23") by Decision and Order filed September 16, 2014 (Doc. No. 110) ("the September 16, 2013 D&O") based on allegations that on August 17, 2011, Defendant C&S sent Plaintiff a letter demanding payment of a $140 City Court filing fee, prerequisite to commencing an action against Plaintiff on an alleged credit card balance owed to the card issuer HSBC, before suit was commenced. Plaintiff requested certification of a class constituting all consumers within New York State to whom C&S sent similar letters within one year before March 9, 2012. The September 16, 2013 D&O at 11. Defendants opposed Rule 23 certification, inter alia, based on Defendants' argument, asserted in a reply brief, that collection of this fee was authorized by a credit card agreement thereby negating any violations of the FDCPA as provided in 15 U.S.C. § 1692f(1) (prohibiting collection of any fee "incidental to the principal obligation, " unless such amount is expressly authorized by the agreement creating the debt....) ("§ 1692f(1)"). Id. at 7. In rejecting Defendants' contention, Judge Skretny noted that Defendants had not produced or "satisfactorily identified" such an agreement. The September 16, 2013 D&O at 8. Judge Skretny also overruled Defendants' objection, among others, to Rule 23 certification as lacking in typicality based on a finding that the asserted agreement allowing collection of the fee finding such "defense, " Plaintiff's Memorandum at 12 ("to prove up their contractual-entitlement defense, Defendants must produce card member agreements; business records demonstrating that proffered agreements were binding on particular class members at the time Midland purchased the accounts; and bills of sale and/or assignment agreements demonstrating when Midland purchased the accounts and that it in fact had the right to enforce the agreements") as relied on by Defendants, was not unique ...