United States District Court, M.D. Florida, Fort Myers Division
DONELL L. TILLMAN, individually and on behalf of all others similarly situated Plaintiff,
ALLY FINANCIAL INC., Defendant.
MIRANDO, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court upon review of Defendant's
Motion to Compel Discovery Responses and to Comply with
Request for Inspection; Memorandum of Law in Support Thereof
(Doc. 165) filed on October 20, 2017. Defendant seeks to
compel Plaintiff to produce certain information in response
to its discovery requests served in June and December 2016.
Doc. 165. Plaintiff opposes the requested relief. Doc. 172.
April 28, 2016, Plaintiff filed this lawsuit against
Defendant on the ground that Defendant has violated the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227 et seq. Doc. 1 at 1. Defendant
allegedly is one of the largest automotive financiers in the
world. Id. ¶ 4. Plaintiff initially sought to
bring claims on behalf of a class that consists of
individuals who received non-consented calls from Defendant
within four years of the filing of the Complaint.
Id. ¶¶ 38-39. On April 3, 2017, Plaintiff
moved for class certification, which Senior United District
Judge John E. Steele denied. Docs. 131, 160. Accordingly,
Plaintiff is proceeding individually only. Doc. 160.
claims that in or around December 2015, Defendant called him
numerous times to reach an individual named Phillip Everett.
Id. ¶ 9. Plaintiff notified Defendant that he
is not Everett, and requested Defendant to cease further
calls. Id. ¶ 10. Plaintiff asserts that he is
not the person whom Defendant attempted to reach, and has not
provided his consent to receive calls from Defendant for any
purpose. Id. ¶¶ 17-18. Nonetheless,
Defendant made twenty-two phone calls to Plaintiff from
January to April 2016. Doc. 160 at 3. Plaintiff received an
artificial or pre-recorded voice message when he did not
answer. Doc. 141 at 3.
times relevant to this case, Plaintiff was not the sole user
of the cell phone to which Defendant made unwanted calls.
Id. at 3-4. Plaintiff's cell phone was part of a
family plan account in the name of his girlfriend's
father. Id. at 3. Although primarily Plaintiff used
the cell phone at issue, his girlfriend also occasionally
used this cell phone. Id. at 3-4. Plaintiff could
not remember whether his girlfriend ever possessed the cell
phone when Defendant made unwanted phone calls. Id.
at 4. In addition, Plaintiff and his girlfriend sometimes
shared monthly bills for the cell phone. Id.
Plaintiff began to receive unwanted calls from Defendant, he
installed on his cell phone an application called Metro Block
It (“Block It”) to block Defendant's unwanted
calls. Id. at 5. Plaintiff added Defendant's
phone number to Block It on January 30, 2016, but still
received Defendant's calls twenty-two times between
January 30, 2016 and March 31, 2016. Id. Indeed,
Block It's maker testified during a deposition some
cellular phone operating systems would send a blocked call to
voicemail rather than having it disconnected. Id.
Later versions of Block It also allowed a user to send a
blocked call to voicemail. Id. at 5-6. In doing so,
users might hear a partial ring, and the phone might light up
when a blocked call comes in. Id. at 6. Similarly,
Plaintiff testified that when a blocked caller calls him, his
cell phone would alert him by making a sound and flashing on
the screen and send the caller to voicemail. Id. at
October 18, 2016, Judge Steele entered a Case Management and
Scheduling Order (“CMSO”) setting the deadline
for disclosure of expert reports for Plaintiff to August 18,
2017 and for Defendant to September 18, 2017, the discovery
deadline to October 20, 2017, and a trial term of May 7,
2018. Doc. 54. On February 6, 2017, Defendant moved for
summary judgment, arguing Plaintiff lacks standing to bring a
claim under the TCPA. Doc. 88. On May 11, 2017, Judge Steele
issued an Opinion and Order denying this motion and holding
Plaintiff has standing (“Summary Judgment
Order”). Doc. 141. On the day of the discovery
deadline, Defendant filed the present motion. Doc. 165.
moves to compel a supplemental response to its Interrogatory
No. 2, served on June 23, 2016. Doc. 165 at 3. Plaintiff
responded on August 10, 2016:
INTERROGATORY NO. 2:
IDENTIFY each and every PERSON known to YOU or anyone acting
on YOUR behalf, who has any information or knowledge
concerning the allegations set forth in the COMPLAINT, and/or
the facts, events, circumstances, conditions and/or
occurrence surrounding and/or underlying those allegations.
Plaintiff objects to this Interrogatory on the grounds that
it is impossible for Plaintiff to describe in detail
“each and every” person. Specifically, Plaintiff
objects to this interrogatory to the Plaintiff on the grounds
that the information sought is obtainable from some other
source-namely Defendant-that is more convenient, less
burdensome, or less expensive. Plaintiff has no way of
knowing the name and address of the Ally Financial Inc.
representatives he spoke with. Notwithstanding this objection
and without waiving further ...