United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge.
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).
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).
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.
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.
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).
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
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).
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).
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. ¶¶
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).
Local Rule 26-7
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)).
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
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
MOTIONS FOR SUMMARY JUDGMENT
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
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).
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). ...