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Grigorian v. FCA US, LLC

United States District Court, S.D. Florida, Miami Division

July 2, 2019

MARIAM GRIGORIAN, Plaintiff,
v.
FCA US, LLC, Defendant.

          REPORT AND RECOMMENDATIONS ON PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S FIRST AMENDED WITNESS LIST AND TO EXCLUDE EVIDENCE AND TESTIMONY FROM PREVIOUSLY UNDISCLOSED WITNESSES

          JONATHAN GOODMAN UNITED STATES MAGISTRATE JUDGE

         United States District Judge Marcia G. Cooke has referred to the Undersigned [ECF No. 89] Plaintiff's Motion to Strike Defendant's First Amended Witness List and to Exclude Evidence and Testimony From Previously Undisclosed Witnesses. [ECF No. 183]. Defendant filed a response in opposition and Plaintiff filed a reply. [ECF Nos. 130');">130');">130');">130; 152');">152].

         Plaintiff's First Amended Complaint alleges that Defendant FCA US, LLC knowingly and willfully violated the Telephone Consumer Protection Act by making unsolicited prerecorded calls by using purportedly “ringless” voicemail technology to place calls to Plaintiff and members of the putative class to promote its products and services. [ECF No. 33]. The two witnesses at issue have evidence about whether the subscriber of the telephone number provided consent for the single telephone call at issue in the lawsuit.

         Although Defendant listed these two witnesses after the relevant deadlines expired, it disclosed the information as soon as it learned of it. In addition, any potential prejudice to Plaintiff can be eliminated by giving her the opportunity take the depositions of the two witnesses. Therefore, although the discovery deadline has expired, the Undersigned respectfully recommends that U.S. District Judge Marcia G. Cooke deny the motion, permit Plaintiff to take the depositions of the two witnesses within three weeks if she chooses to do so, permit the parties to file brief supplements to their summary judgment memoranda if the deposition testimony provides evidence which could affect the summary judgment assessment, and enter a costs/fees-shifting mechanism.

         In making this recommendation, the Undersigned notes that Judge Cooke recently entered orders granting in part Plaintiff's motion to continue the trial and rescheduling the trial to the Court's two-week trial calendar period starting November 12, 2019. [ECF Nos. 184; 185].

         I. Factual Background

         Plaintiff Mariam Grigorian filed this lawsuit on October 22, 2018 and then filed her First Amended Complaint on December 12, 2018. [ECF Nos. 1; 33]. Judge Cooke entered the Trial Scheduling Order on November 5, 2018. [ECF No. 10]. The Order required the parties to furnish their fact witness lists by December 20, 2018 and to complete all fact discovery by March 20, 2019. Both Plaintiff and Defendant filed their witness lists before the deadline.

         On April 5, 2019, FCA served its First Amended Witness List, which identified for the first time, Infutor Data Solutions and One Technologies, LLC as new fact witnesses. Plaintiff filed her motion to strike on April 9, 2019, arguing that “Defendant had not previously identified these witnesses in its initial disclosures, written discovery responses or at deposition.” [ECF No. 89, p. 2');">p. 2');">p. 2');">p. 2].

         In her motion, Plaintiff alleges that she has been “severely prejudiced” by FCA's “untimely and unexplained witness disclosure.” Id. She says she has “no idea who or what the two untimely identified corporations are or what documents they might have.” Id. Her motion seeks an order striking Infutor Data Solutions and One Technologies from FCA's First Amended Witness List and precluding FCA from using any evidence or testimony from these two witnesses at trial, in opposition to her summary judgment motion and motion for class certification, and in support of any other dispositive or pretrial motion which FCA might file.

         FCA's opposition memorandum contends that Plaintiff's motion is “a sham based on deliberate misrepresentations to this Court.” [ECF No. 130');">130');">130');">130, p. 1]. It says that her primary contention -- that she has “no idea” why FCA served an amended witness list identifying Infutor and One Technologies -- is “flat-out false.” Id. According to FCA, it has “repeatedly” and “throughout this entire case” told Plaintiff that FCA believed consent for the call had been obtained from the subscriber of the telephone number, but that it lacked any direct information about the specific manner in which consent was obtained because a third-party vendor (Third-Party Defendant Mudd, Inc.) handled all aspects of the ringless voicemail campaign at issue. [ECF No. 130');">130');">130');">130, pp. 1-2].

         FCA's opposition also explained that determining why the number was included in the campaign and locating the original source for consent had turned out to be difficult because of the “multiple layers of ‘sub-vendors' that were used by Mudd.” [ECF No. 130');">130');">130');">130, p. 2');">p. 2');">p. 2');">p. 2]. Nevertheless, FCA's opposition noted, it “always kept Plaintiff fully informed regarding what it had learned.” Id.

         In further support of that theme, FCA provided more specific information about the circumstances underlying its acquisition of the new witness information and the steps it took to forward that information to Plaintiff:

[E]ven before FCA U.S. served its amended witness list, and before Plaintiff filed her current motion, FCA U.S. had already: 1) notified Plaintiff that it had been contacted by counsel for one of Mudd's sub-vendors, Alesco Data Group, who indicated that the actual subscriber for the 7883 number (Hovhannes Grigorian) had provided that number while utilizing the www.freecreditclick.com website at which time he consented to be contacted on his “mobile devices” regarding the “products and services of third parties”; 2) provided Plaintiff's counsel a copy of the freecreditclick.com website, as well as a copy of the consent language on the website that Hovhannes Grigorian had agreed to; 3) told Plaintiff's counsel that Alesco believed one of its sub-vendors, Infutor, was the entity in possession of information that could confirm the consent given by Hovhannes Grigorian, and that One Technologies was the entity listed as operating the website; and 4) told Plaintiff's counsel that Alesco and Infutor were working to confirm and supply actual evidence of the consent that was given.

Id. (emphasis in original).

         FCA also explained that it did not have detailed information about how persons were identified or how their consents were obtained because Mudd independently handled virtually all aspects of the ringless voicemail campaign. FCA also submitted an affidavit [ECF No. 130');">130');">130');">130-1] from one of its attorneys, who provided a detailed outline of the events leading up to the addition of the two witnesses to the defense witness list. The declaration and memorandum together provide a substantial amount of additional background not discussed in Plaintiff's motion (perhaps because she and her counsel were not aware of all the background steps which FCA had taken in an effort to track down information about the circumstances underlying the consent). The Undersigned considers this additional background significant and will quote the relevant portion:

During the course of discovery, Mudd was unable to identify or produce specifics as to the consent-related information for the ringless voicemail campaign. See Azar Decl., at Exhibit D. Mudd disclosed, however, that the names and telephone numbers utilized were obtained from one of Mudd's sub-vendors, Alesco. See Id. at Exhibit C. Alesco was subpoenaed to produce documents relating to consent and the source of its information, and while that entity produced documents the same day its CEO was deposed (March 19, 2019), it did not provide information or documents regarding consent at that time. Id. at ¶ 6.
On March 26, 2019, Alesco's counsel informed FCA U.S. that it had spoken to one of its sub-vendors, identified during the call only as “Infutor, ” and that it was believed the source of the 7883 number and associated consent had been found. Azar Decl., ¶ 7. Alesco's counsel revealed, for the very first time, that the 7883 number was obtained when a “Hovhannes Grigorian” visited www.freecreditclick.com and agreed to be contacted during this visit. Id. Alesco's counsel stressed during the call that this information had not yet been verified, but indicated that Alesco and/or its sub-vendor would be able to provide more information once they had investigated further. Id.
A week later, FCA U.S. had not received any confirmation or further information from Alesco's counsel. Id. at ¶ 8. Nevertheless, on April 3, 2019, FCA US's counsel informed Plaintiff's counsel about what they had been told and emailed Plaintiff's counsel a copy of the www.freecreditclick.com website and that website's Privacy Policy (which details the terms of the consent that had been given). Id.; see also Id. at Exhibit E. On April 5, 2019, out of an abundance of caution and to ensure that it complied with this Court's scheduling order, FCA U.S. served an amended fact witness list disclosing Infutor's and One Technologies' contact information. See ECF #89-1. ...

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