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Galle v. Nationstar Mortgage, LLC

United States District Court, M.D. Florida, Fort Myers Division

June 13, 2017

MARCIA GALLE, Plaintiff,


          CAROL MIRANDO United States Magistrate Judge

         This matter comes before the Court upon review of the Joint Motion to Extend Discovery Cutoff (Doc. 55); Plaintiff's Motion to Compel Punitive Discovery Responses (Doc. 56); Plaintiff's Motion to Compel Responses to Plaintiff's Interrogatories (Doc. 57); and Plaintiff's Motion to Compel Responses to Plaintiff's Request for Production (Doc. 58) filed on June 9, 2017. Defendant opposes Plaintiff's motions to compel. Docs. 56 at 5, 57 at 23, 58 at 20.

         I. Background

         On May 24, 2016, Plaintiff initiated this proceeding by filing a complaint against Defendant. Doc. 1. With leave of the Court, Plaintiff amended her complaint twice and filed a Second Amended Complaint and Demand for Jury Trial (the “Second Amended Complaint”) on April 17, 2017, which includes a claim for punitive damages. Docs. 16, 17, 18, 49, 50. The Second Amended Complaint alleges that Defendant violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 - 1692p, and the Florida Consumer Collection Practices Act (“FCCPA”), sections 559.55 to 559.785 of the Florida Statutes. Doc. 50 ¶ 2. Specifically, Plaintiff alleges that Defendant violated section 559.72(9) of the Florida Statutes and 15 U.S.C. §§ 1692e(2)(A), 1692e(10), and 1692f. Id. ¶¶ 35, 42, 48, 55. Plaintiff is a resident of Collier County, and Defendant is a foreign limited liability company operating in Texas. Id. ¶¶ 4-5. Plaintiff alleges that Defendant is a debt collector under the definitions of the federal and state statutes. Id. ¶ 5.

         According to the Second Amended Complaint, on July 14, 2008, Plaintiff filed a voluntary Chapter 7 bankruptcy petition with this District's bankruptcy court. Id. ¶ 6. Plaintiff states that the schedules filed with her bankruptcy petition included a mortgage on real property owed to Countrywide Home Loans Servicing LP (“Countrywide”). Id. ¶ 7. Plaintiff alleges that she clearly indicated her intention to surrender the mortgaged property, and Countrywide was included in the mailing matrix filed with her bankruptcy petition. Id. ¶¶ 8-9. Subsequently, on July 18, 2008, the Clerk of Court issued a written notice of filing and of the creditors' meeting to all parties on the master mailing matrix. Id. ¶ 10. Plaintiff claims that Countrywide did not attend the creditors' meeting, and the bankruptcy case discharged Plaintiff's debts including the mortgage loan owed to Countrywide. Id. ¶¶ 11-13.

         Plaintiff alleges that on or about May 1, 2013, Countrywide transferred servicing of Plaintiff's discharged mortgage loan to Defendant, which sent a notice of transfer to Plaintiff. Id. ¶ 14. Defendant also allegedly sent a loan statement dated May 21, 2013, which stated that Plaintiff owed the discharged mortgage loan to Defendant. Id. ¶ 15.

         Plaintiff claims that upon receiving the notice and the statement, Plaintiff filed a lawsuit against Defendant for violating the discharge injunction under the federal bankruptcy code. Id. ¶ 16. Plaintiff argues that the parties amicably resolved that proceeding by entering into a settlement agreement and filing a stipulation to dismiss the proceeding with prejudice on May 26, 2014. Id. ¶¶ 17-18. As a material condition of the settlement agreement, Defendant agreed to cease and desist any further collection activity with the mortgage loan in dispute. Id. ¶ 17.

         Despite the settlement agreement, Plaintiff asserts that Defendant sent informational statements demanding her payment on the discharged debt for over a year. Id. ¶ 19. Plaintiff claims that although her counsel sent a cease and desist letter, Defendant continued to send statements to Plaintiff. Id. ¶¶ 23-25. Plaintiff argues that Defendant's actions constitute violations of the FDCPA and the FCCPA. Id. ¶ 29.

         On June 16, 2016, Defendant filed a motion to dismiss Plaintiff's complaint (Doc. 1), which United States District Judge Sheri Polster Chappell denied. Docs. 10, 14. On October 4, 2016, the Court entered a Case Management and Scheduling Order (“CMSO”) setting the mediation deadline to April 27, 2017, the deadlines to disclose expert reports for Plaintiff to May 5, 2017 and for Defendant to May 19, 2017, the discovery deadline to June 9, 2017, the deadline for dispositive motions to July 14, 2017, and a trial term of November 6, 2017. Doc. 23 at 1-2.

         Approximately one month prior to the discovery deadline, on May 5, 2017, Plaintiff provided an Amended Notice of Taking Deposition (“Notice”) to Defendant, seeking to depose Defendant's corporate representative on June 6, 2017. Doc. 52-1 at 2. In the Notice, Plaintiff proposed to examine twenty-three matters during the deposition. Id. at 3-6. Plaintiff also demanded that Defendant bring eleven categories of documents to the deposition. Id. at 6-7. Defendant objects to nine proposed topics for the deposition and requests to bring four types of documents. Doc. 52 at 3-10. On May 12, 2017, Defendant filed a motion for a protective order based on its objections. Doc. 52. On May 31, 2017, the Court issued an Order granting in part and denying in part Defendant's motion, which resolved the discovery disputes regarding the deposition. Doc. 54 at 4-21. The Court ordered that the parties conduct the June 6, 2017 deposition pursuant to the Order. Id. at 21.

         II. The Joint Motion to Extend Discovery Cutoff (Doc. 55)

         On the discovery cutoff date, June 9, 2017, the parties jointly filed a motion to extend the discovery deadline to July 19, 2017. Doc. 55. The parties state that Defendant's counsel had a medical emergency and could not attend the deposition on June 6, 2017. Id. at 1. As a result, the parties seek to extend the discovery deadline to July 19, 2017 in order to reschedule the deposition and accommodate any issues arising therefrom. Id. The parties' motion, however, does not address the extended discovery deadline's impact on other CMSO deadlines, although the requested discovery deadline will be five days after the deadline of July 14, 2017 for dispositive motions. Docs. 23, 55.

         District courts have broad discretion when managing their cases in order to ensure that the cases move to a timely and orderly conclusion. Chrysler Int'l Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002). Rule 16 requires a showing of good cause for modification of a court's scheduling order. Fed.R.Civ.P. 16(b)(4). “This good cause standard precludes modification unless the schedule cannot be met despite the diligence of the party seeking the extension.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998) (internal quotations and citations omitted). To establish good cause, the CMSO in this matter states that “[t]he moving party must show that the failure to complete discovery is not the result of lack of diligence in pursuing discovery.” Doc. 23 at 4.

         Here, although this matter has been pending for approximately one year since May 26, 2016, Plaintiff scheduled a deposition on June 6, 2017, three days before the discovery deadline. Doc. 55 at 1. Despite having one year to conduct discovery, however, the parties seek additional time to reschedule the deposition and to conduct unlimited discovery because Defendant's counsel was unavailable for the deposition on June 6, 2017. Id. Given the length of time this case has been pending and the Court's Order resolving the parties' disputes regarding the deposition, the Court finds that ...

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