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Tillman v. Ally Financial Inc.

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

January 17, 2018

DONELL L. TILLMAN, individually and on behalf of all others similarly situated, Plaintiff,



         This matter comes before the Court on plaintiff's sealed, unredacted[1] Motion for Summary Judgment (Doc. #178) filed on November 24, 2017. Defendant filed an Unredacted Response in Opposition (Doc. #183) on December 6, 2017. For the reasons set forth below, the Motion is denied as moot and discovery will be re-opened.


         This is a consumer-protection case arising from the receipt of autodialed calls to a cellular phone without consent. On April 28, 2016, plaintiff Donell L. Tillman (plaintiff or Tillman), on behalf of himself and all others similarly situated, filed a one- count class-action complaint, alleging that defendant Ally Financial, Inc. (defendant or Ally) violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, by placing unauthorized calls to his cellular phone using an "automatic telephone dialing system" (ATDS). (Doc. #1.) As relevant here, the TCPA makes it unlawful for "any person/' absent the "prior express consent of the called party, " to make any non-emergency call "using automatic telephone dialing system or an artificial or prerecorded voice. . . to any telephone number assigned to a . . . cellular telephone service[.]" 47 U.S.C. § 227(b) (1) (A) (iii) .

         The Court previously denied class certification (Docs. ##160, 174), but also found that plaintiff had constitutional and statutory standing at both the dismissal and summary judgment stages (Docs. ##58, 141). Plaintiff, now proceeding on his individual case only, moves for summary judgment, arguing that there is no genuine issue of material fact as to whether Ally placed sixty-six (66) calls to plaintiff in violation of the TCPA. Plaintiff also requests that the Court find that the violations were made "willfully and knowingly, " entitling plaintiff to treble damages. 47 U.S.C. § 227(b)(3).

         II. Federal Rule 26 Disclosures

         As an initial matter, the Court considers Ally's argument that the majority of the evidence and witnesses plaintiff provided in support of his summary judgment motion (specifically, Docs. ##178-1, 178-3, 175-4, 175-5, 175-8, 175-10, and 175-11) were not previously disclosed, in violation of Federal Rule of Civil Procedure 26(a) and (e) . Ally states that the only witness previously disclosed by plaintiff was plaintiff himself. See Doc. #183-2. Therefore, Ally requests that the Court exclude the undisclosed evidence and thereafter deny summary judgment due to lack of any supporting evidence. Plaintiff did not seek to reply to Ally's allegations, nor provide any justification for failing to disclose the documents and witnesses.

         Federal Rule 26 requires the parties to disclose the names of all people likely to have discoverable information and a copy of all documents the party may use to support its claim. Fed.R.Civ.P. 26(a)(1) (A)-(B). The rule does not require disclosure of documents or the names of people that will be used "solely for impeachment." Id. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless. Fed.R.Civ.P. 37(c); Murdick v. Catalina Marketing Corp., 496 F.Supp.2d 1337, 1347 (M.D. Fla. 2007) (citation omitted).

         Federal Rule 37(c)(1) provides that the Court can strike Tillman's references to the evidence and can prevent Tillman from relying on the undisclosed evidence in a motion or at trial; however, exclusion is not mandatory. Rule 37(c)(1) provides that instead of sanctioning a party by excluding evidence, the Court may impose other appropriate sanctions. Those sanctions include awarding, upon motion, reasonable expenses and attorney's fees incurred because of the discovery violation. Fed. R. Civ. P 37(c)(1)(A). See also Bearint ex rel. Bearint v. Dorell Juvenile Group, Inc., 389 F.3d 1339, 1348-49 (11th Cir. 2004).

         The Eleventh Circuit considers three factors when reviewing a district court's decision to exclude previously undisclosed evidence under Rule 37: (1) the importance of the evidence; (2) the reason for the party's failure to disclose the evidence earlier; and (3) the prejudice to the opposing party if the evidence is considered. Bearint, 389 F.3d at 1353; Cooley v. Great S. Wood Preserving, 138 Fed.Appx. 149, 160-61 (11th Cir. 2005) . Because plaintiff has not replied to this issue, the Court will only consider factors one and three when considering whether to strike the evidence.

         A. Deposition Testimony and Documents

         The Court has reviewed the evidence at Docs. ##178-1, 178-3, 178-4, 178-5, 175-8[2], 175-10, and 175-11, and finds that the nondisclosure will not cause harm to, nor unfairly prejudice Ally. Ally cannot claim unfair surprise since it knew about the existence of the depositions (indeed, Ally's counsel was present at, and defended the depositions), and due to the Bates stamps, the documents appear to be documents that were produced by Ally. Ally also has not shown how it has incurred additional costs or expenses due to the non-disclosure that it would not have incurred otherwise. Therefore, this evidence will not be excluded.

         B. Number of Calls Identified in Plaintiff's Discovery Responses

         Ally next argues that plaintiff cannot submit any evidence or seek recovery for any alleged TCPA violations other than the 22 calls he identified in his interrogatory responses. Plaintiff claims for the first time in his Motion for Summary Judgment ...

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