Stamps v. Encore Receivable Management, Inc.

232 F.R.D. 419, 63 Fed. R. Serv. 3d 360, 2005 U.S. Dist. LEXIS 39417
CourtDistrict Court, N.D. Georgia
DecidedMarch 11, 2005
DocketNo. CIV.A. 1:04-CV-2761
StatusPublished
Cited by2 cases

This text of 232 F.R.D. 419 (Stamps v. Encore Receivable Management, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stamps v. Encore Receivable Management, Inc., 232 F.R.D. 419, 63 Fed. R. Serv. 3d 360, 2005 U.S. Dist. LEXIS 39417 (N.D. Ga. 2005).

Opinion

ORDER

ORINDA D. EVANS, District Judge.

This civil action alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., and other state law claims is presently before the Court on (1) Plaintiffs Motion to Compel Defendant Encore Receivable Management, Inc.’s Initial Disclosure Responses [# 17]; and (2) Defendant Encore Receivable Management, Inc.’s Motion to Compel Production [#23]. For the reasons state below, both motions are GRANTED in part and DENIED in part. Also pending is the parties’ joint motion to extend discovery [# 29], which is GRANTED.

I. Summary of the Case

Plaintiff filed her Complaint in this action on or about September 21, 2004, alleging that Defendants jointly and severally violated provisions of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq.. Plaintiff also asserts a state law claim for intentional infliction of emotional distress. Discovery in this case ends on March 21, 2005.

Defendant Encore Receivable Management, Inc. (“Encore”) is a Georgia foreign corporation engaged in the business of collecting debts in the state of Georgia. Defendants Rod Dougherty (“Dougherty”) and Doe Palmer (“Palmer”) are persons whose true names are presently unknown to Plaintiff, and whom therefore are sued by such fictitious names. Plaintiff alleges that both Dougherty and Palmer are debt collectors employed by Encore.

Plaintiff alleges the following facts. The Defendants were engaged in debt collection activities surrounding a consumer credit card account (hereinafter “debt”) issued by Discover Card Services, which was opened by Plaintiff for her consumer and household purposes. On or about August 18, 2004, Defendant Dougherty told Plaintiff she would be served with papers at her home and that liens would be put on her property if she did not enter into an agreement to repay the debt in monthly installments of $300 each. On or about August 18, 2004, Plaintiff informed Defendant Dougherty that she was unable to afford monthly payments in the amount of $300.

On or about August 30, 2004, Defendant Palmer left a voice mail message for Plaintiff stating that she was with the finalization and litigation department of her firm and that if the Plaintiff did not contact her by 9pm central time, then she would make the final [421]*421recommendation regarding her case. On or about August 30, 2004, Plaintiff telephoned Defendant Palmer and advised her that she was working with Consolidated Credit Counseling Services, Inc. and requested that she quit calling. In reply, Defendant Palmer said that they would continue calling and that Encore does not work with debt consolidation companies.

II. Plaintiffs Motion to Compel Defendant Encore’s Initial Disclosure Responses

On November 22, 2004, Defendant Encore served its Initial Disclosures. Plaintiff complains that Defendant Encore’s Initial Disclosure Number 1 was inadequate:

1. If the defendant is improperly identified, state defendant’s correct identification and state whether defendant will accept service of an amended summons and complaint reflecting the information furnished in this disclosure response.
Encore is properly identified in the complaint. There are two additional defendants who are either not properly identified, or are not known. Encore asserts all rights to assert that such defendants, if ever identified by Plaintiff and made a part of this litigation, are improper or inappropriate parties to this action.

Plaintiff complains that Defendant Encore’s Initial Disclosure Number 5 was also inadequate:

5. Provide the name and, if known, the address and telephone number of each individual likely to have discoverable information that you may use to support your claims or defenses, unless solely for impeachment, identifying the subjects of the information. (Attach witness list to Initial Disclosures as Attachment A.)
See Attachment A.

Attachment A, in turn, states “Plaintiff likely has knowledge of Plaintiffs claims and alleged damages.” Defendant Encore lists no additional individuals but promises to “timely supplement this response in accordance with the Local Rules in the event it becomes aware of additional individuals.” Defendant Encore has not since supplemented this response.

According to Plaintiff, Initial Disclosure Numbers 1 and 5 require Defendant Encore to disclose the names, addresses, and telephone numbers of its employees that communicated with the Plaintiff in an effort to collect upon the debt, as detailed in the Complaint. Without these disclosures from Defendant, Plaintiff claims that she has no other means of determining the true and accurate names of the additional defendants in this action.

Defendant Encore argues that its response to Initial Disclosure Number 1 is complete and appropriate. According to Defendant, the statement “Encore is properly identified in the complaint” fully answers this mandatory disclosure requirement because it does not create a burden to identify other defendants or state whether they are properly identified or named. Moreover, neither the Federal Rules of Civil Procedure nor this Court’s Local Rules imposes a duty upon Defendant Encore to respond on behalf of other defendants.

Based on the plain reading of this mandatory disclosure, clearly there is no obligation on the part of Defendant Encore to identify the fictitious defendants. Indeed, Initial Disclosure Number 1 only requires Defendant Encore to properly identify itself, not any other party. By responding in the affirmative, Defendant Encore fulfilled its obligation under this initial disclosure. Therefore, Plaintiffs Motion to Compel Initial Disclosure Number 1 is DENIED.

Similarly, Defendant Encore asserts that it has complied with the requirements of Initial Disclosure Number 5. According to Defendant Encore, as of the date of its filing of its Initial Disclosures, Plaintiff was the only person which it could state, with any certainty, would provide support for Defendant’s claims or defenses.

The language of Initial Disclosure Number 5 tracks the language of Federal Rules of Civil Procedure 26(a)(1)(A). As amended in 2000, Rule 26(a)(1)(A) requires the initial disclosure of any witness “that the disclosing party may use to support its claims or defenses.” Although disclosure should include [422]*422the identity of any witness that the disclosing party may use to support its denials, there is no requirement to disclose anything that the disclosing party will not use, which may include much that is harmful to its case. Fed.R.Civ.P. 26(a)(1) advisory committee’s note (2000); Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2053 (2004 Pocket Part).

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Cite This Page — Counsel Stack

Bluebook (online)
232 F.R.D. 419, 63 Fed. R. Serv. 3d 360, 2005 U.S. Dist. LEXIS 39417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stamps-v-encore-receivable-management-inc-gand-2005.