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Tillman v. Ally Financial Inc.

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

November 9, 2017

DONELL L. TILLMAN, individually and on behalf of all others similarly situated Plaintiff,
v.
ALLY FINANCIAL INC., Defendant.

          ORDER

          CAROL MIRANDO, UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Background

         On 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.[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.

         Plaintiff 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.

         At 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.

         When 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 5.

         On 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.

         II. Analysis

         Defendant 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.
ANSWER:
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 ...

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