United States District Court, M.D. Florida, Tampa Division
CHARMAINE Z. ROBERTS, Plaintiff,
DYCK O'NEAL INC., Defendant.
Charlene Edwards Honeywell, United States District Judge.
cause comes before the Court upon Defendant Dyck O'Neal
Inc.'s (“Defendant”) Motion to Compel
Plaintiff Charmaine Z. Roberts' (“Plaintiff”)
Compliance with the Court's Order Requiring Filing of a
Case Management Report (“Motion”) (Doc. 31).
Plaintiff has not filed a response to the Motion and the
deadline for filing a response has passed. The Court held a
Telephonic Status Conference on June 29, 2018, and Plaintiff
failed to appear. Doc. 35; Doc. 38. For the reasons described
below, the Court will now grant Defendant's Motion to
proceeding pro se,  filed a Complaint against
Defendant in this Court on August 21, 2017, alleging
violations of the Fair Debt Collection Practices Act, 15
U.S.C. §§ 1692 et seq. On August 23, 2017,
the Court entered a Related Case Order and Track Two Notice,
providing that the action was designated as a Track Two Case
in accordance with Local Rule 3.05, Middle District of
Florida. Doc. 2. That Order explained that pursuant to Local
Rule 3.05, “counsel and any unrepresented party shall
meet within sixty days after service of the complaint upon
any defendant for the purpose of preparing and filing a Case
Management Report.” Doc. 2. The Court attached to the
Order a copy of the Case Management Report form that the
parties must utilize. Doc. 2.
was served with the Complaint on October 12, 2017.
See Doc. 7. On February 5, 2018, the Court entered
an Order to Show Cause directing Plaintiff to file a written
response on or before February 19, 2018 indicating why this
case should not be dismissed pursuant to Local Rule 3.10 for
lack of prosecution due to the non-filing of a Case
Management Report within the time prescribed by Local Rule
3.05(c)(2)(B). Doc. 19. On February 20, 2018, Plaintiff filed
a Response to Order to Show Cause, alleging that
Plaintiff's failure to submit a Case Management Report to
the Court was due to Defendant's failure to respond to
her proposed Case Management Report, sent to Defendant on
October 17, 2017. Doc. 21, ¶¶ 3, 5-6. Plaintiff
further alleged that she sent another proposed Case
Management Report to Defendant subsequent to the Court's
Order to Show Cause, but that Defendant did not respond to
that document, either. Doc. 21, ¶ 5.
February 23, 2018, Defendant filed a Motion for Leave to File
Reply to Plaintiff's Response to Order to Show Cause.
Doc. 23. The Court granted Defendant's Motion and on
March 15, 2018 Defendant filed its Reply. Doc. 25; Doc. 26.
Defendant alleged it had no record of a proposed Case
Management Report from Plaintiff sent in October. Doc. 26,
pp. 2-3. Defendant added that even if Plaintiff had sent such
a proposed Report, doing so would not have satisfied Local
Rule 3.05 which requires that the parties meet. Doc. 26, pp.
2-3. Defendant further alleged that it received
Plaintiff's proposed Case Management Report sent in
February, and that Defendant responded and proposed filing a
Motion to Appear Telephonically at the Case Management
Conference given Plaintiff's New York residence and
Defendant's counsel's location in Florida. Doc. 26,
pp. 3-4. Defendant alleged that Plaintiff had not responded
to Defendant. Doc. 26, p. 4.
March 19, 2018, Plaintiff filed a “Response” to
Defendant's Reply to Plaintiff's Response to Order to
Show Cause. Doc. 28. On April 9, 2018, the Court entered an
Order striking Plaintiff's reply for failure to comply
with Local Rule 3.01(c). Doc. 30. The Court reiterated, for the
benefit of pro se parties, the requirement that the
parties submit a Case Management Report. Doc. 30. The Court
ordered the parties to conduct a Telephonic Case Management
Conference on or before April 23, 2018 for the purpose of
preparing and filing a Case Management Report on or before
April 30, 2018. Doc. 30.
April 26, 2018, Defendant filed the instant Motion. Doc. 31.
The Motion, summarized below, sets forth the details of the
parties' recent communications and explains
Defendant's efforts to file an agreed Case Management
Report. Doc. 31.
to the Motion, the parties agreed to conduct a Case
Management Conference on April 17, 2018 at 2:00 P.M. Doc. 31,
p. 2. Prior to the scheduled Conference time, Plaintiff sent
Defendant a fax cover sheet and draft Case Management Report
which included “numerous areas stricken and the words
‘Do Not Consent' in many places.” Doc. 31, p.
4; Doc. 31, Exh. 2. Defendant attached Plaintiff's fax
cover sheet and draft Case Management Report to the Motion as
Exhibit 2. The fax cover sheet states: “Please take
note of the corrected sections of the CMR Draft. We are
willing to settle pursuant to 15 U.S.C. 1692K only! I will
contact your office at 2:00 pm.” Doc. 31, Exh. 2. As
described in Defendant's Motion, Plaintiff's draft
Case Management Report includes strikes through a number of
the standard provisions and explanatory paragraphs of the
Court's form Case Management Report. Doc. 31, Exh. 2.
to Defendant's Motion, the parties held the Telephonic
Case Management Conference as scheduled. Doc. 31, p. 2.
During the Conference, Plaintiff advised that she would not
agree to large portions of the Case Management Report because
she “believes applicable law does not require her to
agree to discovery, mediation, trial etc.” Doc. 31, p.
2. Plaintiff advised Defendant that “the only thing she
will do is settle the case ‘pursuant to 15
U.S.C.'” Doc. 31, p. 2.
Motion alleges that after the Conference, Plaintiff sent
Defendant a fax cover sheet and document which Plaintiff
requested Defendant file with the Court. Doc. 31, p. 3.
Defendant attached Plaintiff's fax cover sheet and
document to the Motion as Exhibit 4. The fax cover sheet
states: “Please take notice of the attached Judicial
Notice to be filed with your ECF response to USDC MD FL on or
before April 30, 2018.” Doc. 31, Exh. 4. The attached
document provides as follows:
Charmaine Z. Roberts, Plaintiff/Consumer, files and demands
this court take Judicial Notice of the following facts in
this Consumer Complaint against Defendant pursuant to Article
II of the Federal Rules of Evidence Rule 201.
1. The laws enacted by the United States Congress (Article
III, Constitution for the United States of America), pursuant
to 15 U.S.C. § 1692(k) (d), the “Fair Debt
Collection Practices Act” (FDCPA), established
Plaintiff/Consumer's “private right of
action” to petition this court to enforce any liability
created by this law for relief from violations by the
2. The local rule of this court rule 3.05(c) (2) (B), Case
Management Report, is repugnant to the language of the FDCPA,
the clearest expression of Congressional will to protect
Consumers from illegal debt collection. Plaintiff/Consumer
“does not consent” to local rule 3.05(c)
(2) (B), ...