United States District Court, S.D. Florida
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO AMEND THE COURT'S ORDERS AND TO
ADJOURN THE DEADLINE FOR PAYING TRANS UNION'S COSTS AND
ATTORNEY'S FEES FDE 53');">53');">53');">531 AND MAGISTRATE JUDGE'S REPORT
AND RECOMMENDATION RECOMMENDING THAT THE COURT'S ORDER
IDE 521 REMAIN IN EFFECT
WILLIAM MATTHEWMAN UNITED STATES MAGISTRATE JUDGE.
CAUSE is before the Court upon Plaintiff Jermaine
Turner's ("Plaintiff) Motion to Amend This
Court's Orders (Doc #47, 48, 50, 51) and to Adjourn the
Deadline for Paying Trans Union's Costs and
Attorney's Fees ("Motion") [DE 53');">53');">53');">53]. This matter
was referred to the undersigned by United States District
Judge William P. Dimitrouleas. See DE 57. Defendant,
Trans Union, LLC ("Defendant") has filed a Response
[DE 59], and Plaintiff has filed a Reply [DE 60]. The matter
is now ripe for review.
background and facts of this case have been extensively
detailed in the Court's prior Orders [DEs 33, 35, 39, 41,
47, 50], the Magistrate Judge's Report and Recommendation
[DE 48], and the Order approving and adopting the Magistrate
Judge's Report and Recommendation [DE 51]. The Court
assumes the reader's familiarity with the prior filings
and, therefore, only briefly summarizes those prior rulings
below. In what should have been a simple Fair Credit
Reporting Act ("FCRA") case, poor representation by
Plaintiffs counsel, a lack of personal responsibility by
Plaintiffs counsel, and Plaintiffs failure to participate in
discovery have unnecessarily frustrated and delayed this
case, thereby greatly taxing the Court's time and
THE COURT'S JULY 26, 2019 AND AUGUST 13, 2019
July 26, 2019 Order, the Court made a finding that both
Plaintiff and his counsel, Timothy Dave, Esq., had engaged in
bad faith, vexatious, and wanton conduct. [DE 47, p. 7');">p. 7]. The
Court imposed reasonable attorney's fees and costs
against Plaintiff and his counsel, Mr. Dave, and in favor of
Defendant pursuant to Federal Rules of Civil Procedure
37(a)(5)(A), 37(b)(2)(C), and 37(d)(3). Id. at pp.
August 13, 2019, the Court entered an Order Awarding
Attorney's Fees and Costs after Defendant filed
Declarations in Support of Award of Attorney's Fees and
Costs. [DE 50]. Plaintiff failed to timely respond or object
to the hourly rate claimed by Defendant's counsel or the
number of hours incurred by Defendant's counsel.
Id. at p. 1');">p. 1. The Court required Plaintiff and
Plaintiffs counsel, Mr. Dave, to pay attorney's fees and
costs in the total amount of $5, 866.60 on or before August
30, 2019. Id. at pp. 7');">p. 7-8.
THE JULY 29, 2019 REPORT AND RECOMMENDATION AND AUGUST
14, 2019 ORDER ADOPTING THE REPORT AND
July 29, 2019 Magistrate Judge's Report and
Recommendation, the undersigned recommended that the case be
dismissed with prejudice under Rule 37 and the inherent power
of the Court due to Plaintiffs willful misconduct and the bad
faith conduct of Plaintiff and Plaintiffs counsel, Mr. Dave.
[DE 48, p. 1');">p. 10');">p. 1');">p. 10]. On August 14, 2019, the Honorable William P.
Dimitrouleas, United States District Judge, adopted and
approved the Report and Recommendation and dismissed with
prejudice Plaintiffs claims against Defendant Trans Union,
LLC. [DE 51, p. 2].
THE PENDING MOTION, RESPONSE, AND REPLY
Mr. Dave is currently listed as an attorney of record for
Plaintiff in this case, attorney Alan Ginsberg, Esq., has
recently filed a Notice of Appearance on behalf of Plaintiff
dated September 4, 2019. [DE 55].Mr. Ginsberg's Notice of
Appearance was filed on September 4, 2019, well after
Plaintiffs case against Defendant was dismissed with
prejudice by Order dated August 14, 2019. [DE 55]'. Mr.
Ginsberg is the attorney who filed the pending Motion to
Amend [DE 53');">53');">53');">53] on Plaintiffs behalf.
Motion, Plaintiff moves the Court, pursuant to Rule 60(b), to
amend two of its prior Orders [DEs 47, 50] by requiring only
Mr. Dave, and not Plaintiff, to pay the court-ordered
sanctions to Defendant. [DE 53');">53');">53');">53, p. 1');">p. 1]. Plaintiff also
requests that the Court "adjourn the deadline for making
any payment to Trans Union until at least fourteen (14) days
after this Court rules on the instant motion if this Court
otherwise denies the instant motion." Id.
Finally, Plaintiff requests that the Court "vacate the
orders dismissing Plaintiffs claims against Trans Union (Doc
#48, 51) and allow Plaintiff to pursue those claims."
to the Motion, Plaintiff retained Credit Repair Lawyers of
America ("CLRA") to represent him in this case, and
CRLA retained Mr. Dave "as CRLA does not employee [sic]
an attorney licensed to practice in this jurisdiction."
[DE 53');">53');">53');">53, p. 6]. Plaintiff maintains that Mr. Dave "never
informed Plaintiff or CRLA" about the events that
occurred in this case and that Mr. Dave "has never
contacted Plaintiff, including to obtain Plaintiffs signed
and notarized discovery responses." Id. The
Motion states that "CRLA prepared drafts of Plaintiff s
responses [to] Trans Union's discovery requests and sent
them to Mr. Dave to review. Neither Plaintiff nor CRLA knew
that Mr. Dave failed to timely serve Plaintiffs discovery
responses to Trans Union, because Mr. Dave never informed
Plaintiff or CRLA of that fact." Id. Plaintiff
represents that Mr. Dave has not contacted CRLA about this
case since June 6, 2019, which is prior to Defendant's
filing of its motion to compel, and Mr. Dave failed to
respond when CRLA contacted him. Id.
to the Motion is the Declaration of Jermaine Turner [DE
53');">53');">53');">53-1], in which Plaintiff states that he retained CRLA to
represent him, that Mr. Dave never contacted him, and that he
did not know about the failure to respond to discovery, the
failure to respond to Defendant's motion to compel, the
evidentiary hearing, or the ensuing Orders. Id. at
pp. 1');">p. 1-2. Also attached to the Motion is the Declaration of
Gary D. Nitzkin [DE 53');">53');">53');">53-2]. Mr. Nitzkin is the owner and
president of CRLA. Id. at ¶ 1. Mr. Nitzkin
avers that CRLA retained Mr. Dave, and CRLA drafted
Plaintiffs discovery ...