United States District Court, M.D. Florida, Tampa Division
C. BUCKLEW JUDGE
cause comes before the Court on Plaintiffs' Motion to
Reopen Discovery. (Doc. No. 88, 93). Defendants oppose the
motion. (Doc. No. 94, 95). As explained below, the motion is
granted in part.
brought this lawsuit alleging violations of the Fair Credit
Reporting Act (“FCRA”) by Defendants. Defendant
Vivant Solar, Inc. is the parent corporation of Defendant
Vivant Solar Developer, LLC (collectively referred to as
“Vivant”), and they sell solar panels. Defendant
Solar Mosaic, Inc. (“Mosaic”) is a financing
company that finances solar energy systems. Plaintiffs appear
to contend that all three defendants acted together through
Vivint's door-to-door salesmen to obtain Plaintiffs'
credit reports under false pretenses and without any
permissible purpose or authorization.
filed motions for summary judgment, and Plaintiffs'
responses were initially due on November 29, 2019. Prior to
the response deadline, Plaintiffs requested an extension to
file their responses. The Court granted a limited extension
through December 6, 2019. Thereafter, on November 22, 2019,
the magistrate judge granted in part Plaintiffs' motion
to compel certain discovery. Specifically, the magistrate
judge directed Defendants to turn over the following
documents by December 13, 2019:
Defendants should produce all documents in their possession
and control relating to a complaint made in 2016 or 2017,
either formally or informally, that Defendants violated the
FCRA by obtaining a consumer credit report without
authorization by the consumer in Florida. Additionally, . . .
Defendants should produce all consumer complaints lodged
against Mitchell Coan, Jacob Thebert, Ricardo Martins, and
Briant Katilus, alleging “credit discrepancies”
or forged signatures, without limitation. . . . Plaintiffs
argue that Defendants must disclose the identities of the
relevant complainants. . . . [T]he identity of these
potential witnesses must be disclosed.
(Doc. No. 74, p. 3).
the magistrate judge issued her order, Plaintiffs requested
additional time to respond to the motions for summary
judgment after Defendants produced the compelled discovery.
The Court granted another extension and extended
Plaintiffs' response deadline to December 20, 2019.
Motion to Reopen Discovery
December 17, 2019, after Defendants produced the compelled
discovery, Plaintiffs filed the instant motion, in which they
ask the Court to reopen discovery through January 31, 2020
and deny Defendants' pending summary judgment motions
without prejudice. Specifically, Plaintiffs state the
Defendants collectively produced over 430 new documents . . .
and over eight (8) hours of phone call recordings,
representing what appears to be hundreds of consumer
complaints of impermissible credit pulls by Solar Mosaic and
Vivint in Florida-complaints Defendants have heretofore said
did not exist and failed to produce. Many of these complaints
have been redacted without explanation, and identifying
information on victims masked in violation of the Court's
November 22, 2019 Order (ECF 74). The recordings are not
dated or otherwise identifiable. Further, a cursory initial
review of this evidence reveals that discovery from material
witnesses will be necessary, including at least one Solar
Mosaic witness who apparently admitted the existence of a
known problem with Vivint's sales agents in a recorded
call. Given the limited time frame to file an opposition to
Defendants' motions for summary judgment, Plaintiffs need
additional time to review, catalogue and authenticate this
evidence, and to identify additional witnesses, for the
purposes of responding to Defendants' motions. Documents
and call recordings must be dated and otherwise
authenticated. Material witnesses must be interviewed and/or
deposed. If Defendants fail to rectify their deficiencies, a
third motion to compel may be necessary. Case law is
abundantly clear that summary judgment may only be considered
upon an adequate record . . . .
(Doc. No. 88, p. 2). Plaintiffs argue that this newly
produced evidence goes directly to issues raised in the
pending summary judgment motions; specifically: (1) whether
Defendants engaged in a pattern and practice of willfully
violating the FCRA; and (2) whether Defendants had a
reasonable belief that they were obtaining Plaintiffs'
credit reports for a permissible purpose.
review of the summary judgment motions in this case, the
instant motion to reopen discovery, and Defendants'
opposition thereto, the Court agrees with Plaintiffs that the
discovery period should be reopened through January 31, 2020.
Defendants may withdraw their pending summary judgment
motions and file new ones if they choose; such new motions
for summary judgment must be filed by February 4, 2020.
Plaintiffs' response to Defendants' summary judgment
motions must be filed by February 18, 2020. If Plaintiffs
determine that they need to file another motion to compel,
they should do so expeditiously given the short extension to
the discovery deadline. The Court will also move the pretrial
conference to May 5, 2020 and the trial to June 2020.