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Dejesus v. Cigna Corp.

United States District Court, M.D. Florida, Orlando Division

December 21, 2017




         This putative class action comes before the Court without a hearing on Plaintiff's Motion to Compel Discovery (Doc. 22). Plaintiff Crystal DeJesus complains that Defendant Cigna Corporation used an automated telephone dialing system or an artificial or prerecorded voice to phone her repeatedly in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 (Doc. 1). She alleges that Defendant made these calls without her consent, and that she was not the person Defendant intended to call (Id., ¶¶ 14, 16-19). Defendant reports that after it received Plaintiff's complaint it discovered “apparent systematic data entry errors” which resulted in the incorrect linking of 29 different people to Plaintiff's telephone number (Doc. 29 at 4-5). Unaware of the error, Defendant gave the names of the persons incorrectly linked with Plaintiff's phone number to its call services vendor (Id., at 5). Once Defendant realized its mistake, it took corrective action including placing Plaintiff's phone number on its do-not-call list (Id.).

         Plaintiff seeks to certify a class comprised of all persons in the United States whose cellular telephone numbers were called more than once by Defendant, in the last four years, without their consent, using an artificial or prerecorded voice and/or automatic telephone dialing system (Id., ¶ 23). Plaintiff also seeks to certify a subclass consisting of everyone in the class who, like Plaintiff, was not the person Defendant's records show it intended to call (Id.).

         Plaintiff served requests for admissions, interrogatories and requests for production on Defendant and after several agreed extensions, Defendant responded to this discovery (Docs. 23-3, 23-4, 23-5). Plaintiff was not satisfied with Defendant's responses and counsel met and conferred (Doc. 22 at 2). Defendant agreed to supplement its responses but failed to do so. When the supplemental discovery was not forthcoming, Plaintiff filed this motion (Id., at 2-3). In its response, Defendant represents that after the motion was filed, the parties narrowed the issues so that only Plaintiff's interrogatories numbered 2, 6, 9 and 12, and request for production number 1 are still at issue (Doc. 29 at 12). Nevertheless, the Court addresses all discovery that is the subject of the motion.

         Requests for Admissions

         Requests for admission ask a party “to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to” the facts of the case. Fed.R.Civ.P. 36(a)(1). The answering party has 30 days within to serve a written response, including any objections, to each request or the request is deemed admitted. Fed.R.Civ.P. 36(a)(3). Denials must be specific “or state in detail why the answering party cannot truthfully admit or deny” the request. Fed.R.Civ.P. 36(a)(4). If the answering party is unable to admit or deny a request due to lack of information or knowledge, it must “state[] that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.” Id. If the court finds, on a motion to determine the sufficiency of the answer, that it “does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. The court may defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses.” Fed.R.Civ.P. 36(a)(6). In response to Plaintiff's requests for admissions numbered 1-3 Defendant answered:

Defendant is without sufficient information to admit or deny this request. Discovery is ongoing.

(Doc. 23-3 at 2). Defendant's response does not comply with Rule 36(a)(4), and now it says that it has agreed to supplement its responses to these requests (Doc. 29 at 12). Accordingly, the motion to compel Plaintiff's requests for admissions numbered 1-3 is GRANTED.


         A party has 30 days from service to answer and object to interrogatories. Fed.R.Civ.P. 33(b). “The grounds for objecting to an interrogatory must be stated with specificity.” Fed.R.Civ.P. 33(b)(4). The rules leave no place for generalized, nonspecific, boilerplate objections. “Objections which state that a discovery request is ‘vague, overly broad, or unduly burdensome' are, by themselves, meaningless, and are deemed without merit ….” Siddiq v. Saudi Arabian Airlines Corp., No. 6:11-cv-69-Orl-19GJK, 2011 WL 6936485, at *3 (M.D. Fla. Dec. 7, 2011) (quoting Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691, 695 (S.D. Fla. 2007)).

         Interrogatories 2 and 3 ask Defendant to identify every person in the United States who may qualify as a member of the putative class or subclass (Doc. 23-4 at 4-5). Defendant objects to these interrogatories on the ground that they are premature because a class has not been certified (Id.). “Courts have ordinarily refused to allow discovery of class members' identities at the pre-certification stage out of concern that plaintiffs' attorneys may be seeking such information to identify potential new clients, rather than to establish the appropriateness of certification.” Dziennik v. Sealift, Inc., No. 05-CV-4659 (DLI) (MDG), 2006 WL 1455464, at *1 (E.D.N.Y. May 23, 2006) (collecting cases). Even in those circumstances where a court finds that the contact information for some class members is discoverable “it may be doubted whether any of these purposes would require compilation of the names and addresses of all members of a large class.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 354, n. 20 (1978) (emphasis in original). Plaintiff has failed to show why this case should be the exception to the rule. Accordingly, Defendant's objections to interrogatories 2 and 3 are sustained, and Plaintiff's motion to compel answers is DENIED.

         Interrogatories 4, 6 and 12 ask Defendant to: (1) “describe the purpose of calling Plaintiff's cellular telephone number;” (2) “[i]dentify all software and equipment by vendor, model/version, and dates in operation, that were used to make any phone call to” Plaintiff's phone number; and (3)identify the vendors Defendant used to phone Plaintiff on its behalf (Doc. 23-4 at 6-7, 9). Defendant's boilerplate objections that this discovery is overly broad, vague, unduly burdensome, not relevant, and not proportional to the needs of the case are overruled. Defendant also objects to interrogatory number 12 on the ground that it is not limited to calls made to Plaintiff (Doc. 29 at 11). The Court disagrees. Interrogatory 12 only concerns calls made to Plaintiff. To establish liability under the TCPA, Plaintiff must establish that an automated telephone dialing system or artificial/prerecorded voice was used to facilitate the calls by the defendant or an entity acting on the defendant's behalf. AT&T Mobility LLC v. C1F, Inc., CIVIL ACTION NO. 1:09-cv-00277-JOF, 2010 WL 11549600, at *5 (N.D.Ga. Nov. 19, 2010) (“'Liability under the TCPA may exist not only for the person making the call, but also for the entity on whose behalf the call is made.' Under the Telephone Consumer Protection Act, it is unlawful for “any person ... to make any call ... using any automated telephone dialing system or an artificial or prerecorded voice ... to any telephone number assigned to a ... cellular telephone service.”) (citing 47 U.S.C. § 277(b)(1)(A)(iii)); see also Shamblin v. Obama for Am., No. 8:13-cv-2428-T-33TBM, 2014 WL 631931, at *2 (M.D. Fla. Feb. 18, 2014). These interrogatories are relevant to Plaintiff's ability to prove essential elements of her case. Therefore, Plaintiff's motion to compel interrogatories 4, 6 and 12 is GRANTED.

         Defendant's seventh affirmative defense alleges that “if it violated the TCPA, which it denies, that it has established and implemented, with due care, reasonable practices and procedures to effectively prevent violations of the TCPA.” (Doc. 9 at 6). Defendant's ninth interrogatory asks Defendant to identify and explain the policies, practices and procedures it had in place during the relevant time period to avoid violating the TCPA (Doc. 22 at 8). Plaintiff also asks Defendant to provide “a detailed description of each policy, practice or procedure, the date it was first implemented, and all persons involved in its consideration, implementation and, if applicable, termination.” (Id.). Defendant's boilerplate objections that this interrogatory is “overly broad, unduly burdensome, not reasonably limited as to time and scope, and asks for information that is irrelevant and not proportional to the needs of the case, ” are overruled. Defendant's remaining objection is that the information sought is “privileged, confidential and proprietary” and “of limited relevance to the issues of this case.” (Id.). Defendant has not produced a privilege log or provided facts to support its conclusory allegations. Consequently, this objection is overruled and Plaintiff's motion to compel a full response to interrogatory 9 is GRANTED.

         Interrogatory number 13 asks Defendant to explain how, from whom, and when it obtained Plaintiff's telephone number (Doc. 22 at 9). Defendant answered that it obtained Plaintiff's number from “a client employer for health care insurance related purposes.” (Doc. 22 at 9-10). This is not a full or complete answer to ...

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