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Marshall v. The CBE Group, Inc.

United States District Court, D. Nevada

March 30, 2018

THE CBE GROUP, INC., Defendant.


          Gloria M. Navarro, Chief Judge United States District Judge.

         Pending before the Court is the Motion for Partial Summary Judgment, (ECF No. 33), filed by Plaintiff Gretta Marshall (“Plaintiff”). Defendant The CBE Group, Inc. (“CBE”) filed a Response, (ECF No. 45), and Plaintiff filed a Reply, (ECF No. 55).

         Also before the Court is CBE's Motion for Summary Judgment, (ECF No. 39). Plaintiff filed a Response, (ECF No. 54), and CBE filed a Reply, (ECF No. 56).

         Also before the Court is CBE's Motion to Exclude the Supplemental Declaration and Testimony of Plaintiff's Expert Randall Snyder. (ECF No. 32). Plaintiff filed a Response, (ECF No. 48), and CBE filed a Reply, (ECF No. 53).[1]

         For the reasons discussed herein, Plaintiff's Motion for Partial Summary Judgment, (ECF No. 33), is DENIED. CBE's Motion for Summary Judgment, (ECF No. 39), is GRANTED in part and DENIED in part. Further, CBE's Motion to Exclude and Strike, (ECF No. 32), is DENIED.

         I. BACKGROUND

         This case arises out of CBE's alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (the “FDCPA”), and the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (the “TCPA”), in their efforts to collect debts related to Plaintiff's unpaid DirecTV bill. On August 8, 2015, DirecTV placed a consumer debt account with CBE for collection. (CBE's Document Production (“CBE Records”) at 1, Ex. 5 to Pl.'s Mot. for Partial Summ. J. (“Pl.'s MSJ”), ECF No. 33-7); (Johnson Dep. 66:21-67:10, Ex 4 to Pl.'s Resp. to CBE's MSJ (“Pl.'s Resp.”), ECF No. 54-6). CBE began its debt-collection efforts the next day by mailing Plaintiff a demand letter for the debt. (CBE Records at 3). CBE subsequently obtained Plaintiff's cell phone number from a skip-tracing vendor in order to continue its debt collection. (Johnson Dep. 66:9-12).

         CBE placed one hundred eighty-nine outbound calls to Plaintiff's cell phone, the majority of which took place between August of 2015 and January of 2016. (Id. 192:1-13); (CBE Records at 4-46). Plaintiff first asked CBE to stop calling her in August of 2015, when the calls began. (Marshall Dep. 23:16-23, 71:18-72:19, Ex. 6 to Pl.'s Resp., ECF No. 54-8). On August 18, 2015, Plaintiff placed an inbound call to CBE in which she expressed her desire that the calls cease. (Johnson Dep. 143:14-144:3). On September 8, 2015, Plaintiff and a CBE agent engaged in a heated conversation in which Plaintiff expressed her frustration with the calls. (Id. 144:9-146:19). According to CBE, Plaintiff “never requested to be placed on the internal do not call list, and appeared to take it upon herself to stop the calls.” (CBE's MSJ ¶ 3) (citing Business Rs. Aff. at 3, Ex. 1 to CBE's MSJ, ECF No. 39-1).

         Between September 18, 2015, and September 22, 2015, CBE placed ten calls to Plaintiff's place of employment. (Johnson Dep. 147:2-19). CBE placed its final call to Plaintiff on February 11, 2016. (CBE Records at 46). On March 14, 2016, DirecTV recalled its account with CBE. (Johnson Dep. 103:5-104:5).

         On October 16, 2016, Plaintiff filed her Complaint, (ECF No. 1), asserting the following violations arising from CBE's debt-collection activity: (1) the TCPA; (2) the FDCPA; and (3) the Nevada Deceptive Trade Practices Act, Nevada Revised Statute (“NRS”) § 598 (“NDTPA”). (See Compl. ¶¶ 58-87).


         CBE moves the Court to exclude Plaintiff's expert Randall Snyder's (“Snyder”) Supplemental Declaration and to strike Snyder as a designated expert in this case. (See generally Mot. to Strike, ECF No. 32). CBE argues that the Supplemental Declaration is untimely and otherwise improper because it includes a new conclusion in violation of Federal Rule of Civil Procedure 26(e)(2). (Id. ¶¶ 4-7). CBE seeks to strike Snyder as a designated expert on the basis that Snyder is unqualified to testify in this case, his opinions are unreliable, and he impermissibly incorporates legal conclusions in his analysis. (Id. ¶¶ 13-34).

         Plaintiff responds that CBE's Motion is improper because CBE failed to comply with the meet-and-confer requirements under Local Rule 26-7. (Pl.'s Resp. to Mot. to Strike 5:15- 17, ECF No. 48). Plaintiff also argues that Snyder is qualified to render expert opinions, and that the Supplemental Declaration was timely and required as a supplemental disclosure pursuant to Rule 26(a)(3). (Id. 7:4-20, 9:10-17:24).

         A. Local Rule 26-7

         Courts in this District have held that “parties with discovery disputes are required to conduct personal, two-way communication to attempt to resolve their disputes without judicial intervention.” Picozzi v. Clark Cnty. Detention Ctr., No. 2:15-cv-00816-JCM-PAL, 2016 WL 6518627, at *2 (D. Nev. Nov. 2, 2016) (citing ShuffleMaster, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996)). Under Local Rule 26-7, discovery motions will not be considered unless the movant (1) makes a good-faith effort to meet and confer; and (2) includes a declaration setting forth the details and results of the meet-and-confer conference about each disputed discovery request. D. Nev. LR 26-7(c). Pursuant to the local rules, “meet and confer” means “to communicate directly and discuss in good faith the issues required under the particular rule or court order.” D. Nev. LR IA 1-3(f). Unless otherwise provided, “this requirement may only be satisfied through direct dialogue” and the “exchange of written, electronic, or voice-mail communications does not satisfy this requirement.” Id. To ensure compliance, movants must file certifications that “accurately and specifically convey to the court who, where, how, and when the respective parties attempted to personally resolve the discovery dispute.” Picozzi, 2016 WL 6518627, at *2 (citing Nevada Power v. Monsanto, 151 F.R.D. 118, 120 (D. Nev. 1993)).

         The Court is not satisfied that CBE made a good-faith effort to meet and confer prior to filing its Motion to Exclude and Strike. The Court agrees with Plaintiff that “despite having direct knowledge of Mr. Snyder's supplemental declaration for approximately a month, [CBE] made no effort to meet and confer until August 18, 2017-the day it filed its motion to exclude.” (Id. 6:6-10). On that day, CBE left voicemails and sent an email to Plaintiff's counsel, to which Plaintiff failed to respond. This does not comply with the local rules. See D. Nev. LR IA 1-3(f); see also Whitlock v. City of Caliente, 2014 WL 4929509, at *1 (D. Nev. Oct. 1, 2014) (“Plaintiff[] . . . left a voicemail with Defense counsel stating the motion to compel would be filed if responses were not received by the end of the day. This is insufficient.”). Further, the Court agrees with Plaintiff that CBE failed to support its Motion with a “properly detailed declaration, ” and instead attached a “three-line unsworn statement” summarizing the meet and confer efforts. (Pl.'s Resp. to CBE's Mot. to Strike 6:14-19); (see Mot. to Strike at 17); see also D. Nev. LR 26-7(c); Kondrk v. Towbin Dodge LLC, No. 2:15-cv-003300-RFB-NJK, 2015 WL 12976099, at *1 (D. Nev. Nov. 9, 2015) (“[I]t does not appear from the declaration that Defendant's attorney has spoken with [plaintiff's] attorney regarding the instant dispute. Absent such personal consultation, the meet-and-confer is insufficient.”).

         CBE nonetheless urges the Court to use its discretion and consider its Motion despite noncompliance with the local rules. (Reply to Pl.'s Resp. to CBE's Mot. to Strike, 2:23-3:8, ECF No. 53). CBE asserts that a meet-and-confer would have been futile because Plaintiff would be unlikely to agree to strike its own expert witness. (Id. 3:11-12). The Court, however, agrees with Plaintiff that CBE failed to avail itself of alternative remedies such as a stipulation or motion to extend the applicable expert rebuttal deadlines. (Pl.'s Resp. to Mot. to Strike 8:13- 9:2). Thus, the Court finds that CBE's attempt to meet-and-confer falls short of the good-faith standard contemplated by this District's local rules. Accordingly, CBE's Motion to Exclude and Strike is denied.[2]


         A. Legal Standard

         The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See Id. “Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor.” Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         In determining summary judgment, a court applies a burden-shifting analysis. “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323- 24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

         If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). ...

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