1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL
MICHAEL R. SIMMONDS (SBN 96238)
TOMIO B. NARITA (SBN 156576)
JEFFREY A. TOPOR (SBN 195545)
SIMMONDS & NARITA LLP
44 Montgomery Street, Suite 3010
San Francisco, CA 94104-4816
Telephone: (415) 283-1000
Facsimile: (415) 352-2625
msimmonds@snllp.com
tnarita@snllp.com
jtopor@snllp.com
Attorneys for Defendants
Collins Financial Services, Inc. and
Nelson & Kennard
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DAVID TOURGEMAN,
Plaintiff,
vs.
COLLINS FINANCIAL SERVICES,
INC., a corporation; NELSON &
KENNARD, a partnership, DELL
FINANCIAL SERVICES, L.P., a
limited partnership; DFS
ACCEPTANCE, a corporation, DFS
PRODUCTION, a corporation,
AMERICAN INVESTMENT BANK,
N.A., a corporation; and DOES 1
through 10, inclusive,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CASE NO. 08-CV-1392 JLS NLS
DEFENDANTS’ MEMORANDUM OF
POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION TO
COMPEL FURTHER RESPONSE BY
COLLINS FINANCIAL SERVICES,
INC. AND NELSON & KENNARD TO
REQUESTS FOR PRODUCTION
AND INTERROGATORIES, AND IN
SUPPORT OF DEFENDANTS’
CROSS-MOTION FOR
PROTECTIVE ORDER
Date: April 5, 2010
Time: 9:30 a.m.
Crtrm: 1101
The Honorable Nita L. Stormes
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 1 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL i.
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. The Motion Should Denied In Full, Or At A Minimum, Should
Be Denied As To The Eighteen Discovery Requests That
Counsel For Tourgeman Never Mentioned During Any Meet
And Confer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Only “Relevant” Evidence Is Properly Discoverable, And The
Court May Issue A Protective Order That Limits The Scope Of
Discovery Or That Controls The Timing Of Discovery . . . . . . . . . . . . . 4
C. The Court Has Already Ruled, And Tourgeman Has Previously
Testified, That The Only “Communication” At Issue Is The State
Court Collection Complaint Filed Against Tourgeman . . . . . . . . . . . . . 5
D. Tourgeman Seeks An Order Compelling Documents And
Information That Have No Relevance To Any Claim In This
Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. Discovery Regarding All Debtors Contacted Or Sued By
Defendants Is Improper Because It Is Not Unlawful To
Contact A Debtor Or To Sue A Debtor . . . . . . . . . . . . . . . . . . . . 6
2. Discovery Regarding Defendants’ Procedures For
Investigating Debts Is Improper Because The Law Does
Not Require A Collector To Investigate A Debt Before It
Seeks To Collect It . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3. Discovery Regarding Defendants’ Collection Letters Is
Improper Because The Section 1692g Claim Has Been
Dismissed And Tourgeman Does Not Allege He Received
Any Letter From Defendants That Violated The FDCPA . . . . 10
4. Discovery Regarding Procedures For Settling Debts Or
Dismissing Lawsuits Is Improper Because It Is Not Unlawful
To Seek Settlements Or To Dismiss Lawsuits . . . . . . . . . . . . . . 10
E. The Court Should Issue A Protective Order Limiting Tourgeman
To The Discovery He Allegedly Needed To Oppose The Pending
Summary Judgment Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 2 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL ii.
TABLE OF AUTHORITIES
FEDERAL CASES
Campuzano-Burgos v. Midland Credit Management, Inc.,
550 F.3d 294 (3d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Donohue v. Quick Collect, Inc.,
592 F.3d 1027 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Epstein v. MCA, Inc.,
54 F.3d 1422 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Evory v. RJM Acquisitions Funding, LLC,
505 F.3d 769 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Food Lion, Inc. v. United Food And Commercial Workers Int.’l Union,
103 F.3d 1007 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Guerrero v. RJM Acquisitions LLC,
499 F.3d 926 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Hahn v. Triumph Partnerships LLC,
557 F.3d 755 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Harvey v. Great Seneca Financial Corp.,
453 F.3d 324 (6th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Heintz v. Jenkins,
514 U.S. 291 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Hyman v. Tate,
362 F.3d 965 (7th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Lewis v. ACB Bus. Servs., Inc.,
135 F. 3d 389 (6th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Mack v. Great Atlantic and Pacific Tea Co., Inc.,
871 F.2d 179 (1st Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Miller v. Javitch, Block & Rathbone,
561 F.3d 588 (6th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Presidio Components, Inc. v. American Technical Ceramics Corp.,
2009 WL 1423577 (S.D. Cal. May 20, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Pressley v. Capital Credit and Collection,
760 F.2d 922 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Smith v. Transworld Sys., Inc.,
953 F.2d 1025 (6th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Wahl v. Midland Credit Mgmt., Inc.,
556 F.3d 643 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 3 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL iii.
FEDERAL STATUTES
Fair Debt Collection Practices Act,
15 U.S.C. § 1692 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
15 U.S.C. § 1692 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
15 U.S.C. §§ 1692b-1692j . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
15 U.S.C. § 1692g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 10
15 U.S.C. § 1692g(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
STATE STATUTES
California Code of Civil Procedure,
§ 581(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
OTHER AUTHORITIES
Federal Rules of Civil Procedure,
Rule 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Rule 26(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Rule 26(b)(2)(C)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Rule 26 (c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Rule 26(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Rule 37(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rule 37(a)(5)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rule 56(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 11, 12
Southern District of California Local Rules,
Rule 26.1a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 4 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL 1.
I. INTRODUCTION
The motion to compel by Plaintiff David Tourgeman (“Tourgeman”) seeks
sweeping discovery on the theory that this is a big case that puts “all” of Defendants’
collection practices at issue. Not so. The scope of this case is actually very narrow.
The Court has already ruled that there is only one “communication” at issue here: the
state court collection complaint filed against Tourgeman by defendant Nelson &
Kennard on behalf of its client, defendant Collins Financial Services (“Collins”).
Tourgeman claims that complaint violated the Fair Debt Collection Practices Act
(“FDCPA) and state law because it sought to recover a debt he allegedly paid “in
full” to Dell, and because the complaint was filed in the wrong judicial district. The
complaint is the only communication Tourgeman says he received from Defendants.
Tourgeman’s case is not only narrow in scope, but it is also hanging by the
narrowest of threads. Defendants filed a summary judgment motion five months ago
explaining why his claims fail as a matter of law. The Court granted Tourgeman’s
Rule 56(f) motion, allowing discovery on a few issues he claimed were necessary for
his response. Defendants produced the documents and made their witnesses available
for depositions. Instead of taking the depositions and filing his opposition, however,
Tourgeman chose to delay. He cancelled the depositions, waited a few months, and
then filed this motion, seeking discovery that nothing to do with the summary
judgment motion, and nothing to do with the case.
Tourgeman clearly favors a blunt instrument over a scalpel. For example, he
has moved to compel on eighteen (18) separate discovery requests that he never
bothered to mention to Defendants in any meet and confer. Even after Defendants
brought this violation of the Local Rules and Federal Rules to his attention,
Tourgeman pressed forward, refusing to withdraw the motion or to withdraw it as to
the eighteen requests.
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 5 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL 2.
Tourgeman has also moved to compel on numerous requests where Defendants
have already produced the documents and information to him, or where they have
said in their responses that no such documents exist. He is firing indiscriminately.
The motion suffers from Tourgeman’s fundamental misunderstanding of the
substantive law governing the FDCPA, and his confusion about what evidence might
be considered even remotely relevant to his claims. The FDCPA does not prohibit
collectors from having any “contact” with debtors. Nor does it prohibit collectors
from “suing” debtors. Tourgeman cannot simply announce that he is pursuing a class
action on behalf of every consumer that was “contacted or sued” by Defendants and
hope this will justify the breadth of his discovery. He must tie his discovery to some
alleged conduct by Defendants that is actually proscribed by the Act. He has not
even tried to make this connection. His requests for the number of persons
Defendants contacted or sued, and for copies of every collection letter sent and every
collection complaint filed by Defendants, will not identify a class.
Similarly, the requests for information about Defendants’ procedures for
“investigating” debts are improper, because the FDCPA does not impose a duty of
investigation. Discovery on procedures for settling debts or dismissing lawsuits is
unfounded, because the FDCPA does not prohibit settlements or dismissals. His
requests for copies of Defendants’ section 1692g letters makes no sense, because that
claim was already dismissed by the Court. Tourgeman says he received no letters and
is not pursuing a claim based on any letter.
This motion should be denied. It was filed without any attempt to meet and
confer as to eighteen of the requests. It seeks documents and information that has
already been provided or that does not exist. It seeks information about claims that
have been dismissed or that have never been asserted. It seeks information based on
the unsupportable assumption that Defendants violated the FDCPA every time they
made contact with a debtor or filed a collection lawsuit.
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 6 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Concurrently with this opposition memorandum, Defendants have filed Separate1
Statements which list each of the discovery requests at issue and which explain in detail
why no further response is warranted.
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL 3.
Tourgeman’s case is floundering, and this motion is nothing more than a very
expensive and time-consuming delay tactic. The Court should find, pursuant to Rule
37(a)(5)(B) of the Federal Rules of Civil Procedure, that Defendants are entitled to
recover their attorneys’ fees and reasonable expenses in responding to the motion.
At a bare minimum, the Court should issue a protective order for Defendants,
permitting Tourgeman to obtain only that discovery he previously identified in his
Rule 56(f) motion that has not been produced (if there is any). The Court can then
reset the hearing on Defendants’ summary judgment motion, which should clear this
case from the docket. 1
II. ARGUMENT
A. The Motion Should Denied In Full, Or At A Minimum, Should Be
Denied As To The Eighteen Discovery Requests That Counsel For
Tourgeman Never Mentioned During Any Meet And Confer
No party may move for an order compelling further discovery until after the
party has made a good faith attempt to meet and confer to resolve the dispute without
court intervention. The Federal Rules Of Civil Procedure and Local Rules of this
Court are crystal clear on this point. See Fed. R. Civ. P. 37(a)(1) (“The motion must
include a certification that the movant has in good faith conferred or attempted to
confer with the person or party failing to make disclosure or discovery in an effort to
obtain it without court action.”); Local Rule 26.1a (“The court will entertain no
motion pursuant to Rules 26 through 37, Fed. R. Civ. P., unless counsel will have
previously met and conferred on all disputed issues.”).
Despite these clear requirements, eighteen of the discovery requests that are the
subject of this motion were never discussed in any letter or any phone call by counsel
for Tourgeman. See Declaration of Tomio B. Narita In Support Of Opposition To
Motion To Compel And Motion For Protective Order And Award Of Sanctions
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 7 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL 4.
(“Narita Decl.”), ¶¶ 3-6, Exs. A and B. This was no oversight. In fact, Defendants
specifically informed counsel for Tourgeman that the motion was improper because
no meet and confer had been conducted, but Tourgeman’s counsel refused to take the
motion off calendar, and counsel also refused to withdraw the motion as to the
eighteen requests. Id.
Since no meet and confer was conducted as to “all disputed issues” as required
by Rule 26.1a of the Local Rules, the entire motion should be denied. At a bare
minimum, the Court should deny the motion as to the eighteen discovery requests that
were never discussed by counsel. See Presidio Components, Inc. v. American
Technical Ceramics Corp., 2009 WL 1423577, *3-4 (S.D. Cal. May 20, 2009)
(denying motion to compel where no proper meet and confer conducted in advance of
motion). Counsel for Tourgeman should also be sanctioned and ordered to pay
Defendants’ attorneys’ fees given their deliberate refusal to comply with the
requirements of the Federal Rules and the Local Rules.
B. Only “Relevant” Evidence Is Properly Discoverable, And The Court
May Issue A Protective Order That Limits The Scope Of Discovery
Or That Controls The Timing Of Discovery
While the scope of permissible discovery is certainly broad, the Ninth Circuit
has recognized is not without limits. See Epstein v. MCA, Inc., 54 F.3d 1422, 1423
(9th Cir. 1995) (district court abused discretion in granting motion to compel where
information requested was irrelevant as it “would have no bearing on either the merits
of the case or the motion for class certification”). Under Rule 26, parties may only
obtain discovery if the information requested is “relevant” to a claim or defense in the
case. See Fed. R. Civ. P. 26(b). In other words, discovery is improper where, as here,
the information requested has no bearing on the allegedly unlawful conduct at issue.
See Epstein, 54 F. 3d at 1423-24; see also Food Lion, Inc. v. United Food And
Commercial Workers Int.’l Union, 103 F.3d 1007, 1012-13 (D.C. Cir. 1997)
(vacating order compelling production of documents; liberal discovery rules are “not
so liberal as to allow a party to roam in shadow zones of relevancy and to explore
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 8 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL 5.
matter which does not presently appear germane on the theory that it might
conceivably become so.”) (citations, quotation marks omitted); Mack v. Great
Atlantic and Pacific Tea Co., Inc., 871 F.2d 179, 187 (1st Cir. 1989) (trial court’s
limits on scope of discovery were not error where plaintiff’s overbroad requests were
burdensome immaterial to case; parties “ought not to be permitted to use broadswords
where scalpels will suffice, nor to undertake wholly exploratory operations in the
vague hope that something helpful will turn up.”).
Even if the discovery requested by Plaintiff is permissible, the Court has the
power to limit the scope of discovery if “the burden or expense of the proposed
discovery outweighs its likely benefit, considering the needs of the case, the amount
in controversy, the parties’ resources, the importance of the issues at stake in the
action, and the importance of the discovery in resolving the issues.” See Fed. R. Civ.
P. 26(b)(2)(C)(iii). The Court also has the power to specify that discovery be had
only as to certain matters, and it may control the timing and sequence of proper
discovery. Id. Rule 26 (c)(1), Rule 26(d).
C. The Court Has Already Ruled, And Tourgeman Has Previously
Testified, That The Only “Communication” At Issue Is The State
Court Collection Complaint Filed Against Tourgeman
In his quest to delay a ruling on the summary judgment motion, Tourgeman
ignores the fact that the scope of his claims is actually very narrow. The Court has
already ruled that there was only one “communication” between Defendants and
Tourgeman relating to the debt: namely, the state court summons and collection
complaint. See Order Granting In Part And Denying In Part Defendant’s Motion To
Dismiss And Motion To Strike (Docket 58), at 4 (holding that “Defendants’ state
court claim is a an FDCPA ‘communication’”); at 5 (noting that “the conduct at issue
– the filing of a state collection action allegedly in violation of the FDCPA –
occurred in the United States.”). In fact, when it dismissed Tourgeman’s claim under
section 1692g of the FDCPA, the Court ruled he “fails to allege any actual
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 9 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Although the Second Amended Complaint includes sweeping background2
allegations drafted by Tourgeman’s counsel which vilify the way he imagines the
Defendants and other debt collectors operate, Tourgeman never identified any other
“communication” made by Defendants, other than the collection complaint.
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL 6.
communications other than the state court summons and complaint.” Id. at 6
(emphasis added).
Tourgeman subsequently submitted sworn testimony confirming that the state
court summons and complaint was the only “communication” he received from
Defendants. See Declaration of David Tourgeman In Opposition To Defendant’s
Motion For Summary Judgment (Docket 83-5), ¶ 11. 2
Tourgeman’s remaining claims are that 1) the complaint sought to collect a
debt that was paid “in full”; and 2) the complaint was filed in the wrong judicial
district. There is no basis for seeking discovery that is not relevant to these claims.
D. Tourgeman Seeks An Order Compelling Documents And
Information That Have No Relevance To Any Claim In This Action
1. Discovery Regarding All Debtors Contacted Or Sued By
Defendants Is Improper Because It Is Not Unlawful To
Contact A Debtor Or To Sue A Debtor
Tourgeman says his requests are proper because he seeks to represent a
purported FDCPA class of all persons in the country who were “contacted or sued”
by Collins or Nelson & Kennard. It follows, according to Tourgeman, that “all” of
Defendants’ collection practices are at issue, and all of his discovery is proper.
Tourgeman is wrong. The FDCPA does not prohibit collectors from contacting
consumers, nor does it bar collectors from filing suits. Rather, the Act prohibits
collectors from engaging in a very specific set of unlawful collection practices. See
15 U.S.C. §§ 1692b-1692j. Tourgeman has not shown that Defendants have refused
him any discovery that is tethered to any allegedly unlawful activity at issue in this
case. His motion must fail.
Congress did not pass the FDCPA to prevent collectors from having any
contact with debtors, nor to prohibit collectors from filing suit. Rather, as the Ninth
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 10 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL 7.
Circuit has repeatedly recognized, the Act was passed to protect consumers from
serious threats, harassment, abuse and other deceptive practices utilized by
unscrupulous collectors. See 15 U.S.C. § 1692; Pressley v. Capital Credit and
Collection, 760 F.2d 922, 925 (9th Cir. 1985) (FDCPA passed “to protect consumers
from a host of unfair, harassing, and deceptive debt collection practices without
imposing unnecessary restrictions on ethical debt collectors”) (citation omitted).
Nothing in the legislative history of the Act suggests it was meant to operate as a
wholesale ban on any type of contact with a debtor, or a prohibition on the ability to
file a complaint to collect an unpaid debt. To the contrary, the Ninth Circuit recently
observed that the focus of the Act is prevention of deceptive and intimidating conduct
by collectors that would seriously “disrupt a debtor’s life”:
The purpose of the FDCPA is to protect vulnerable and unsophisticated debtors
from abuse, harassment and deceptive collection practices. . . . Congress was
concerned with disruptive, threatening, and dishonest tactics. The Senate
Report accompanying the Act cites practices such as ‘threats of violence,
telephone calls at unreasonable hours [and] misrepresentation of consumer’s
legal rights.’ (Citation). In other words, Congress seems to have
contemplated the type of actions that would intimidate unsophisticated
individuals and which, in the words of the Seventh Circuit, ‘would likely
disrupt a debtor’s life.’ (Citation).
Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 938-39 (9th Cir. 2007) (emphasis
added).
Tourgeman cannot seek discovery regarding every debtor “contacted or sued”
by Defendants unless he identifies how the “contacts” or how the “suits” allegedly
violated the FDCPA. He cannot ask the Court to simply assume the Act was violated
every time Defendants made contact with a debtor. This would ignore the Ninth
Circuit’s decision in Donohue v. Quick Collect, Inc., 592 F.3d 1027 (9th Cir. 2010),
which held that an allegedly false and misleading statement by a collector does not
violate the FDCPA unless it is “material.” Id. At 1033-34. A “material”
misstatement is one that is “genuinely misleading” and that “may frustrate the
consumer’s ability to intelligently choose his or her response” to the collector’s
communication. Id. at 1034. The Court noted that:
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 11 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Donohue reflects an emerging consensus of circuit courts that rejects highly-3
technical alleged violations of the FDCPA. See also Hahn v. Triumph Partnerships
LLC, 557 F.3d 755 (7th Cir. 2009); Wahl v. Midland Credit Mgmt., Inc., 556 F.3d 643,
646 (7th Cir. 2009); Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 596 (6th Cir.
2009).
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL 8.
In assessing FDCPA liability, we are not concerned with mere technical
falsehoods that mislead no one, but instead with genuinely misleading
statements that may frustrate a consumer’s ability to intelligently choose his or
her response. Here, the statement in the Complaint did not undermine
Donohue’s ability to intelligently choose her action concerning her debt.
Id. at 1034 (emphasis added). 3
Tourgeman’s remaining claims against Defendants are very specific. He
alleges Defendants sued him for a debt that was paid “in full” and filed suit in the
wrong judicial district. He is entitled to discovery related to those claims. He has not
alleged or identified any material misstatement made by Defendants with respect to
every debtor that they contacted or sued. His request for documents and information
about the total number of debtors Defendants ever contacted or sued is not relevant to
his claims, nor will it identify the number of class members.
2. Discovery Regarding Defendants’ Procedures For
Investigating Debts Is Improper Because The Law Does Not
Require A Collector To Investigate A Debt Before It Seeks To
Collect It
Many of Tourgeman’s requests seek information about the policies or
procedures used by Defendants to “investigate” debts before they try to collect them.
This discovery is not proper, however, because the FDCPA does not impose a duty
on collectors to independently investigate and verify debts before they initiate the
collection process.
But Defendants have no business interest in devoting time and energy seeking
to collect money from people who do not owe it. For this reason, they do have
procedures in place to prevent any attempt to collect debts that have already been
paid. Defendants have provided this information to Tourgeman already, and they
have offered witnesses for depositions. To the extent he now seeks to compel
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 12 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
See Declaration of Howard Knauer In Support Of Motion For Summary4
Judgment (Docket 75), ¶ 5, Ex. B; Declaration of Jonathan E. Ayers In Support Of
Motion For Summary Judgment (Docket 73), ¶ 4, Ex. B.
See Order Granting In Part And Denying In Part Defendant’s Motion To Dismiss5
And Motion To Strike (Docket 58), at 7 (“[T]he filing of a lawsuit, even if a plaintiff
does not have the means of proving the case at filing or does not ultimately prevail, has
not by itself been considered harassment or abuse under the FDCPA. See, e.g., Heintz
v. Jenkins, 514 U.S. 291, 296 (1995); Harvey v. Great Seneca Financial Corp., 453 F.3d
324, 330 (6th Cir. 2006).”).
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL 9.
documents or responses beyond what has been produced and offered, his motion
should be denied.
Contrary to the theory implicit in Tourgeman’s discovery requests, the FDCPA
does not require a debt collector to independently verify the validity of a debt before
attempting to collect it. Instead, the FDCPA allows a collector to assume the debt is
valid, unless the debtor submits a timely dispute to the collector. See 15 U.S.C. §
1692g(a)(3) (collector must notify consumer that debt will be assumed valid unless
consumer disputes validity of debt within 30 days of receipt of notice); Smith v.
Transworld Sys., Inc., 953 F.2d 1025, 1032 (6th Cir. 1992) (FDCPA does not require
collector to independently investigate debt referred for collection); Hyman v. Tate,
362 F.3d 965, 968 (7th Cir. 2004) (FDCPA does not require collector to
independently verify validity of debt to qualify for “bona fide error” defense).
The undisputed record shows that non-party Paragon Way, Inc. and Nelson &
Kennard both sent notices to Tourgeman as required by the FDCPA, advising him of
his right to dispute the debt. But Tourgeman never responded. This is all the4
FDCPA requires.
If Tourgeman is arguing that discovery about procedures for “investigating”
debts is relevant to show that Defendants did not have possession of sufficient
evidence to prove their case before the collection suit was filed, his requests are
improper as this Court has already rejected this theory of recovery. 5
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 13 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL 10.
Defendants have already provided Tourgeman with discovery on their
procedures used to ensure that they are filing suit on valid debts, and to ensure they
are filing suit in the correct judicial district. They arranged to have witnesses testify
on these topics months ago, but Tourgeman cancelled the depositions. There is no
basis for an order compelling a further response.
3. Discovery Regarding Defendants’ Collection Letters Is
Improper Because The Section 1692g Claim Has Been
Dismissed And Tourgeman Does Not Allege He Received Any
Letter From Defendants That Violated The FDCPA
The Court previously dismissed the claim that alleged Defendants had not sent
Tourgeman a letter containing the notice required under section 1692g of the
FDCPA. See Order Granting In Part And Denying In Part Defendant’s Motion To
Dismiss And Motion To Strike (Docket 58), at 6. After that order issued, Tourgeman
filed his Second Amended Complaint. That pleading does not allege that Defendants
sent him any collection letters, nor does it identify any false or misleading statement
allegedly contained in any letter.
Despite this, Tourgeman seeks to compel Defendants to produce copies of all
versions of their section 1692g letters, as well as all other collection letters they have
utilized. These requests are clearly not related to any claim at issue in this case, and
the motion must be denied as to these requests.
4. Discovery Regarding Procedures For Settling Debts Or
Dismissing Lawsuits Is Improper Because It Is Not Unlawful
To Seek Settlements Or To Dismiss Lawsuits
Tourgeman seeks to compel documents and information about Defendants’
policies for settling debts and their policies for dismissing lawsuits. The discovery
has nothing to do with this case. Tourgeman does not allege that Defendants violated
the FDCPA in connection with settling any debt or dismissing any lawsuit.
Even if the complaint had made this allegation, there is nothing unlawful about
settling debts or dismissing lawsuits. To the contrary, cases have repeatedly
recognized that the FDCPA encourages settlement of debts. “There is nothing
improper about making a settlement offer. (Citation). Forbidding them would force
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 14 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL 11.
honest debt collectors seeking a peaceful resolution of the debt to file suit in order to
advance efforts to resolve the debt – something that is clearly at odds with the
language and purpose of the [Act].” Campuzano-Burgos v. Midland Credit
Management, Inc., 550 F.3d 294, 299 (3d Cir. 2008) (citing Evory v. RJM
Acquisitions Funding, LLC, 505 F.3d 769 (7th Cir. 2007) and Lewis v. ACB Bus.
Servs., Inc., 135 F. 3d 389, 399 (6th Cir. 1998).
Similarly, the FDCPA does not prohibit collectors from dismissing collection
lawsuits. Under section 581(c) of the California Code of Civil Procedure, any
California litigant is permitted to dismiss a lawsuit before trial begins.
The motion must be denied as to requests seeking information relating to
Defendants’ policies and procedures relating to settling debts and dismissing
lawsuits.
E. The Court Should Issue A Protective Order Limiting Tourgeman To
The Discovery He Allegedly Needed To Oppose The Pending
Summary Judgment Motion
If the Court does not deny this motion outright, Defendants request that it issue
a protective order, limiting the scope of discovery at this time to the requests counsel
for Tourgeman identified in paragraph 5 of his declaration in support of Plaintiff’s
motion under Rule 56(f).
Defendants’ motion for summary judgment explained why Defendants were
entitled to prevail as a matter of law on the “bona fide error” defense. Tourgeman
claimed that he could not respond to the motion without certain discovery that he had
requested. See Declaration of Brett M. Weaver In Support of Plaintiff’s Opposition
To Motions For Summary Judgment And In Support Of Plaintiff’s Rule 56(f) Motion
(“Weaver Declaration”) (Docket 83-2). The Court granted a continuance, allowing
Tourgeman to obtain the discovery identified in paragraph 5 of the Weaver
Declaration. See Order (Docket 90) at 3.
Defendants believe they have responded to all of the discovery properly, and
contend they have produced anything relevant to the pending summary judgment
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 15 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL 12.
motion. Instead of taking the depositions of Defendants’ witnesses, however,
Tourgeman cancelled them at the last minute, waited a few months, and then filed
this motion to compel.
Defendants submit that this motion is simply part of a Tourgeman’s effort to
delay entry of summary judgment against him by seeking to compel discovery on
irrelevant topics. At a bare minimum, Defendants ask the Court to enter a protective
order, limiting the scope of discovery for now to those items listed in paragraph 5 of
the Weaver Declaration. Once that discovery is completed, the summary judgment
motion can be reset for hearing. In the event the summary judgment motion is
denied, discovery can proceed on any other relevant topic.
III. CONCLUSION
The motion should be denied in its entirety. Tourgeman did not comply with
the Local Rules or the Federal Rules when he refused to meet and confer regarding
all of the matters covered by the motion. The motion also seeks to compel discovery
that has already been produced, that does not exist, that relates to dismissed claims, or
that relates to theories that are not unlawful and not at issue. The Court should deny
the motion and award costs and fees to Defendants, in a amount to be determined
based upon declarations to be submitted by counsel.
In the alternative, the Court should issue a protective order, limiting discovery
at this time to the matters identified by Tourgeman in his Rule 56(f) motion until the
pending summary judgment motion is resolved.
DATED: March 15, 2010 SIMMONDS & NARITA LLP
TOMIO B. NARITA
By: s/Tomio B. Narita
Tomio B. Narita
Attorneys for Defendants
Collins Financial Services, Inc. and
Nelson & Kennard
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 16 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL 13.
PROOF OF SERVICE
I, Tomio B. Narita, hereby certify that:
I am employed in the City and County of San Francisco, California. I am over
the age of eighteen years and not a party to this action. My business address is 44
Montgomery Street, Suite 3010, San Francisco, California 94104-4816. I am counsel
of record for the defendants in this action.
On March 15, 2010, I caused DEFENDANTS’ MEMORANDUM OF
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL
FURTHER RESPONSE BY COLLINS FINANCIAL SERVICES, INC. AND
NELSON & KENNARD TO REQUESTS FOR PRODUCTION AND
INTERROGATORIES, AND IN SUPPORT OF DEFENDANTS’ CROSS-
MOTION FOR PROTECTIVE ORDER to be served upon the parties listed below
via the Court’s Electronic Filing System:
VIA ECF
Brett M. Weaver
brett@johnsonbottini.com
Counsel for Plaintiff
Daniel P. Murphy
dmurphy245@yahoo.com
Counsel for Plaintiff
Francis A. Bottini, Jr.
frankb@johnsonbottini.com
Counsel for Plaintiff
Frank J. Johnson
derekw@johnsonbottini.com
Counsel for Plaintiff
Kent R. Christenson
kchrstenson@calljenson.com
Counsel for defendants Dell Financial Services, L.L.C., and
CIT Financial USA, Inc.
Lisa A. Wegner
lwegner@calljensen.com
Counsel for defendants Dell Financial Services, L.L.C., and
CIT Financial USA, Inc.
//
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 17 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TOURGEMAN V. COLLINS FINANCIAL SERVICES, INC. ET AL. (CASE NO. 08-CV-1392JLS NLS)
DEFENDANTS’ MEMO IN OPPOSITION TO MOTION TO COMPEL 14.
I declare under penalty of perjury that the foregoing is true and correct.
Executed at San Francisco, California on this 15th day of March, 2010.
By: s/Tomio B. Narita
Tomio B. Narita
Attorneys for Defendants
Collins Financial Services, Inc. and
Nelson & Kennard
Case 3:08-cv-01392-JLS-NLS Document 96 Filed 03/15/10 Page 18 of 18
