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Turner v. Trans Union, LLC

United States District Court, S.D. Florida

October 11, 2019

JERMAINE TURNER, Plaintiff,
v.
TRANS UNION, LLC, et al. Defendants.

          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.

         THIS 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.

         I. BACKGROUND

         The 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 resources.

         II. THE COURT'S JULY 26, 2019 AND AUGUST 13, 2019 ORDERS

         In its 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. 7-8.

         On 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.

         III. THE JULY 29, 2019 REPORT AND RECOMMENDATION AND AUGUST 14, 2019 ORDER ADOPTING THE REPORT AND RECOMMENDATION

         In the 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].

         IV. THE PENDING MOTION, RESPONSE, AND REPLY

         Although 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].[1]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.

         In the 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." Id.

         According 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.

         Attached 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 ΒΆ 1. Mr. Nitzkin avers that CRLA retained Mr. Dave, and CRLA drafted Plaintiffs discovery ...


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