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Zimmerman v. Edwin A. Abrahamsen & Associates, P.C.

United States District Court, M.D. Pennsylvania

August 28, 2017

STEVEN ZIMMERMAN, Plaintiff
v.
EDWIN A. ABRAHAMSEN & ASSOCIATES, P.C., Defendant

          MEMORANDUM

          William J. Nealon United States District Judge.

         I. BACKGROUND

         On June 15, 2015, Plaintiff, Steven Zimmerman, instituted the above-captioned action by filing a complaint against Defendant, Edwin A. Abrahamsen & Associates, P.C., which alleges that Defendant violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). (Doc. 1). On August 21, 2015, Defendant filed an answer to the complaint. (Doc. 5). On October 28, 2015, the Court issued a Scheduling Order, which set the following pre-trial deadlines: initial disclosures were due October 29, 2015; the final date for joining additional parties was December 16, 2015; the final date for the amendment of pleadings was January 15, 2016; fact discovery was to be completed by February 18, 2016; dispositive motions were due by March 18, 2016; and expert discovery was to be completed by April 18, 2016. (Doc. 8). Furthermore, pursuant to the Scheduling Order, “[a]ny motions or briefs filed after the expiration of the applicable deadline without prior leave of court shall be stricken from the record, ” and “[n]o extensions of the pre-trial schedule shall be granted absent good cause.” (Doc. 8).

         On November 13, 2015, Plaintiff “served Defendant with his self-executing disclosure, Interrogatories, and Requests for Production of Documents.” (Doc. 19, p. 2). According to Plaintiff, “[p]ursuant to Fed.R.Civ.P. 33 and 34, Defendant's written discovery responses and production of documents were due on or before December 14, 2015.” (Id.). Plaintiff states that “[u]pon request of Defendant's counsel, Michael Ratchford, Plaintiff granted Defendant an extension within which to respond to the Interrogatories and Requests for Production of Documents until December 21, 201[5].” (Id.). However, Defendant did not provide responses to the interrogatories and requests for production of documents on or before December 21, 2015. (Id.). Plaintiff's counsel then made “multiple attempts to follow-up with Mr. Ratchford about Defendant's overdue discovery responses.” (Id.). Plaintiff's counsel then “received” responses from Defendant's counsel, in which Defendant's counsel stated on December 30, 2015, that he was “‘[f]inishing them up now, '” and on December 31, 2015, that he was “‘still trying to get some information from [his] IT guy.'” (Id.) (citing Docs. 19-9, 19-10, 19-11).

         On February 18, 2016, Plaintiff filed a motion for extension of time to complete discovery and brief in support. (Docs. 9, 10). By Order dated March 7, 2016, Plaintiff's unopposed motion was granted, and the discovery deadline was extended to March 21, 2016. (Doc. 11). On March 21, 2016, Plaintiff filed a concurred in motion for extension of time to complete discovery and brief in support. (Docs. 12, 13). By Order dated March 30, 2016, Plaintiff's motion was granted, and the discovery deadline was extended to April 20, 2016. (Doc. 14). Additionally, based on the new discovery deadline, the dispositive motion deadline was extended to May 20, 2016. (Id.).

         On April 7, 2016, Defendant submitted its response to Plaintiff's requests for documents. (Doc. 19-12). Throughout its response, Defendant stated that a number of the requested documents were “[t]o be provided.” (Id. at pp. 1-2).

         On April 15, 2016, Plaintiff's counsel “sent a letter to Defendant outlining the various deficiencies in Defendant's responses, including the fact that no documents were produced.” (Doc. 19, p. 3) (citing Doc. 19-13). In that letter, Plaintiff's counsel stated that while the responses from Defendant's counsel were “appreciated, there are a number of issues that must be addressed.” (Doc. 19-13, p. 1). Plaintiff's counsel continued by asking for Defendant's counsel to “[p]lease accept this correspondence in the same good faith with which it is being tendered in an effort to avoid judicial intervention.” (Id.). Plaintiff's counsel asked “that [Defendant's counsel] revisit your responses by the close of business, April 22, 2016.” (Doc. 19-13, p. 1). Further, Plaintiff's counsel indicated that he was “filing this letter of record with the Court as a precursor to what I will expect to be a Motion to Compel More Specific Answers.”[1] (Id.).

         On May 25, 2016, the Court issued an Order setting the above-captioned action down for pre-trial conference and trial because “[t]o date, no dispositive motions have been filed . . ., nor has either party filed a motion requesting an extension of time to file such a motion.” (Doc. 15, at p. 2). “Consequently, ” this Court found, “the deadlines for the completion of discovery and filing of dispositive motions have passed.” (Id.).

         On July 12, 2016, the Court issued an Order directing the parties to confer and file a joint status report on or before August 2, 2016. (Doc. 16). On July 27, 2016, Plaintiff's counsel communicated with Defendant's counsel concerning the April 15, 2016 letter. (Doc. 19-14, pp. 1-2). In that communication, Plaintiff's counsel stated that he did not “see a response to our 4/15 deficiency letter saved in our file. Could you please re-send me your response?” (Id. at p. 2). Plaintiff's counsel states that Defendant's counsel eventually provided a response to the April 15, 2016 letter in August 2016. (Doc. 19, p. 3).

         On August 3, 2016, as a result of the parties' failure to file a response to the July 12, 2016 Order, the Court directed the parties to confer and file a joint status report on or before August 10, 2016. (Doc. 17). Later on August 3, 2016, Plaintiff filed a status report “on behalf of both parties.” (Doc. 18). Plaintiff indicated that “[d]iscovery has nearly been completed, but Defendant does still have some documents to produce to Plaintiff.” (Id.). According to Plaintiff, “[t]he parties have agreed that such documents will be produced by the end of this week.” (Id.). Further, Plaintiff stated that “[n]o dispositive motions have been filed and there seems to be no reasonable possibility of amicable resolution.” (Id.). Finally, Plaintiff noted that “[t]he parties are prepared to move forward and hereby request that this Court enter a pretrial scheduling order.” (Id.).

         Since August 3, 2016, Plaintiff contends that his counsel “has repeatedly requested that Defendant produce such documentation, but it has not been produced.” (Doc. 19, p. 3) (citing Doc. 19-14). In particular, on August 9, 2016, Plaintiff's counsel sent an e-mail to Defendant's counsel indicating that Plaintiff's counsel “still” had not “received the documents you said you would produce in this case, ” and asking “[w]hen will you have them to me?” (Doc. 19-14, p. 1). Additionally, Plaintiff notes that “Defendant's counsel has not contended that the requested documentation should not be produced; Defendant's counsel has repeatedly promised that such document would be produced and they have not been.” (Doc. 19-14, p. 2). On August 17, 2016, Plaintiff's counsel sent e-mail to Defendant's counsel, this time asking “[w]here are the documents?” (Id. at p. 3). On August 22, 2016, Plaintiff's counsel sent another e-mail to Defendant's counsel. (Id. at p. 6). In this communication, Plaintiff's counsel stated that he “still haven't received the documents we discussed on the Zimmerman case. I will intend to file a Motion tomorrow if they are not produced.” (Id.). On August 25, 2016, Plaintiff's counsel indicated to Defendant's counsel in an e-mail that he “still” had not “received any of the documents we discussed” and that he “will file a Motion to Compel if I don't receive them by Monday.” (Id. at p. 8). On that same date, Defendant's counsel sent a response to Plaintiff's counsel, in which Defendant's counsel thanked Plaintiff's counsel “for giving me until Monday” and indicated that he was “pulling the documents together now.” (Id. at p. 10). On September 13, 2016, Plaintiff's counsel sent another e-mail to Defendant's counsel. (Id. at p. 12). In this communication, Plaintiff's counsel stated that he was “going to file my motion to compel tomorrow” and that he “can't wait any longer.” (Id.).

         On September 20, 2016, Plaintiff filed the instant motion to compel discovery and a brief in support. (Docs. 19-20). In particular, Plaintiff moves to compel Defendant to produce documents in response to Plaintiff's aforementioned November 13, 2015 discovery requests. (Doc. 19, pp. 2-3). While Plaintiff acknowledges that Defendant produced its responses on March 30, 2016, Plaintiff states that “no documents were produced with the responses and the responses simply indicated that documents were ‘[t]o be produced.'” (Id. at pp. 2-3). Plaintiff argues that since August 3, 2016, “Plaintiff has repeatedly requested that Defendant produce such documentation, but it has not been produced.” (Doc. 20, p. 3). Further, Plaintiff claims that “Defendant's counsel has not contended that the requested documentation should not be produced; Defendant's counsel has repeatedly promised that such documents would be produced and they have not been.” (Id.).

         On October 24, 2016, Defendant filed an untimely brief in opposition.[2] (Doc. 21). Defendant argues that “[t]he April 20, 2016 [discovery] deadline came and went without Plaintiff filing any addition (sic) motion to extend the discovery deadline.” (Id. at p. 2). Defendant continued by stating that “[d]espite missing the discovery deadline, Plaintiff filed a Motion to Compel Defendant to provide additional responses to discovery.” (Id.). Further, Defendant quotes the language from the Court's Scheduling Order for the following: “‘any motion or brief filed after the expiration of the applicable deadline without prior leave of court shall be stricken from the record.'” (Id. at p. 3) (emphasis in original). According to Defendant, “Plaintiff's filing of the discovery motion was past the applicable deadline and must be denied.” (Id.). Lastly, Defendant contends that “Plaintiff has not provided any facts regarding the reason for his failure to file the motion within the time proscribed by the Scheduling Order.” (Doc. 21, p. 3).

         II. ...


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