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Roberts v. Dyck O'Neal Inc.

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

July 27, 2018

CHARMAINE Z. ROBERTS, Plaintiff,
v.
DYCK O'NEAL INC., Defendant.

          ORDER

          Charlene Edwards Honeywell, United States District Judge.

         This 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 Compel.

         I. BACKGROUND

         Plaintiff, proceeding pro se, [1] 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.

         Defendant 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.

         On 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.

         On 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).[2] 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.

         On 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.

         According 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.

         According 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.

         Defendant's 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 Defendant.
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), ...

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