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Sexton v. Poulsen and Skousen P.C.

United States District Court, D. Utah

July 6, 2018

DAVID SEXTON, Plaintiff,
v.
POULSEN and SKOUSEN P.C., et al., Defendants.

          JILL PARRISH DISTRICT JUDGE

          MEMORANDUM DECISION AND O GRANTING IN PART PLAINTIFF'S EXPEDITED DISCOVERY MOTION

          BROOKE C. WELLS UNITED STATES MAGISTRATE JUDGE

         This matter is referred to the undersigned in accordance with 28 U.S.C. 636(b)(1)(A).[1]Before the court is Plaintiff's Motion to Expedite Motion for Discovery.[2] The court initially heard argument on Plaintiff's motion May 4, 2018.[3] At the conclusion of that hearing the court ordered Defendants to file supplemental responses to Plaintiff's discovery requests. They were to be made “in a full and adequate way and not solely rely on [D]efendants interpretation of what is a debt under the FDCPA.”[4] After supplementing the responses counsel were instructed to meet and confer regarding the updated discovery responses.

         A second hearing was held on June 14, 2018.[5] Plaintiff continued to complain about Defendants discovery responses and the court took the matter under advisement. After the court took the matter under advisement, Defendant filed its second supplemental responses to the discovery requests.[6] Having considered the motion further, the discovery requests, the supplemental responses filed after both hearings and the parties' conduct the court will grant the motion in part awarding partial attorney fees under Rule 37. In addition Plaintiff is ordered to redraft some of the discovery requests.

         BACKGROUND

         This matter arises from alleged violations of the Fair Debt Collection Practices Act (FDCPA)[7] and the Utah Consumer Sales Practices Act (UCSPA).[8] Plaintiff Mr. Sexton and Defendant Evergreen Village entered into a lease agreement for a mobile home. Unfortunately the parties from that point on did not live happily ever after. Rather, according to Defendants, Mr. Sexton violated some of the rules within the mobile home park including the failure to control his dog. Perhaps in an attempt to audition for the part of Cujo, this dog mauled another dog and then attacked a meter reader. Mr. Sexton claims the dog was not his. Defendants, however, filed suit in state court where a judgment was obtained and a writ of execution was entered. The state court denied a motion to set aside the judgment and the parties reached an oral settlement agreement to sell the mobile home.

         Once again the parties' best laid plans for a happy ending vanished. Defendants allege Mr. Sexton violated the agreement by trying to sell the home to someone who was going to remove it from the community. The constable was called and the police came to halt the sale.

         Mr. Sexton subsequently filed suit in federal court. In his Complaint Mr. Sexton alleges he did not own the Cujo-esque dog, [9] Defendants knowingly made false and deceptive representations in the state court case, [10] kicked Mr. Sexton out of his home, [11] changed the locks, and failed to account for Mr. Sexton's exempt property. These actions, among others, allegedly violated the FDCPA and the UCSPA. The instant dispute centers on Plaintiff's discovery requests and Defendants' responses.

         ANALYSIS

         The Federal Rules of Civil Procedure govern discovery in federal civil actions. Federal district courts have broad discretion over discovery.[12] Rule 26 provides that parties

may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.[13]

         Information within the scope of discovery need not be admissible in evidence at trial to be discoverable.[14] Under Rule 26(c), a court on its own, or via motion, may limit discovery.[15] Such limitations help prevent discovery that is unreasonably cumulative or duplicative and encourages parties to obtain discovery from convenient less burdensome inexpensive sources.[16]

         I. Plaintiff's Discovery Motion

         Plaintiff argues Defendants improperly relied on their interpretation of the FDCPA in refusing to produce documents, or in providing insufficient responses to the discovery requests. Defendants claimed they did not attempt to collect a debt and did not have communications as defined by the FDCPA. In its motion Plaintiff makes specific reference to requests for production numbers 15, 21, 22, 24 and interrogatories 1, 3, 4, 5 6, 7, 8, 9 and 10. Plaintiff also takes issue with certain requests for admission including numbers 11, 13, 1531, 32, 33, 36, 37 and 41. Plaintiff seeks sanctions for the lack of “proper responsive answers to discovery”[17]including fees, striking Defendants' Answer and deeming the disputed requests for admission admitted. Although the court finds some sanctions are warranted, under the Ehrenhaus factors, [18]the severe sanctions sought by Plaintiff are not appropriate at this time.

         A. Requests for Production

         Plaintiff takes issue with Defendants responses to certain requests for production (RFP). During the follow up hearing on Plaintiff's motion, defense counsel went through the requests and the corresponding answers found in its supplemental responses. Following the second hearing, Defendants provided a second supplement to their discovery responses.

         (i) RFP Number 9

         Plaintiff's RFP number 9 states “Produce each and every document you contend you provided to the Plaintiff and his attorney with the amount needed to fully pay the debt you were attempting to collect.”[19] Defendants' initial response highlights the parties' disagreement over the legal definition of “debt.” “INITIAL RESPONSE: Poulsen and Skousen, P.C. did not attempt to collect a "debt," as defined by 15 U.S. Code §1692a, regarding David Sexton, and therefore there are no such documents.” Following the first hearing Defendants filed the following supplemental response:

SUPPLEMENTAL RESPONSE: The Request was for documents pertaining to a "debt" collection. As has been explained, there was no debt collection. There was a judicial action brought against David Sexton, Utah Second District Court case # 170902842 EV. Defendant has already provided certain documents regarding Utah District Court case # 170902842 EV, and Defendant provides the remainder of pertinent pleadings from that case, attached hereto. In addition, as has been stated, the Writ of Execution seized the home, prohibiting Sexton from selling the home. On and before July 28, 2017, Evergreen, through its attorney, and Sexton, through his attorney, orally agreed that the mobile home in question could be sold, based upon the following: 1) the mobile home was to remain in Plaintiff's community; 2) The mobile home would only be sold to an independent person that could qualify to lease the lot in Plaintiff's community, upon which the mobile home was occupying; 3) Both parties would have to agree to a particular sale; 4) The parties would agree to how much of the sales proceeds would go to each party); and, 5) Sexton would pay on going lot rent and utilities to Plaintiff during the time before the home is sold. Sexton violated the terms of the agreement, by attempting to sell the home to an individual who wanted to move the mobile home from Plaintiff's community. Also, there was no notice to Plaintiff of this potential sale, and there was no commitment for the mobile home to remain in the community. In addition, there was no application filed for renting the lot, and there was no agreement about how monies from the sale should be divided. Plaintiff only learned of this potential sale when the potential purchaser of the home started tearing the home down for transport. Obviously, Sexton violated the stipulations of the agreement, and accordingly, a payoff could not be given. Accordingly, there were not, and could not have been, documents provided regarding a payoff.[20]

         Although the supplemental response clearly offers more detail, the court finds it is argumentative as alleged by Plaintiff. However, Plaintiff is not entirely without fault. The RFP could have provided more detail, a definition of Plaintiff's interpretation of debt under the FDCPA or even a qualifier like debt “as alleged by Plaintiff.” Moreover, if the parties had genuinely engaged in an in person meet and confer, rather than the all too common coy email where parties object to responses without both sides genuinely trying to work things out, much of the discovery problems could have been resolved.

         After the second hearing on Plaintiff's motion, Defendants provided a second supplemental response as follows:

SECOND SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS #9: Poulsen and Skousen, P.C., and Robert Poulsen have never stated that an amount was provided to Plaintiff or Plaintiff's attorney with a payoff amount, and so there are no documents responsive to this request.

         Plaintiff's attempted payment was to be made using funds from an attempted improper sale of the mobile home. The attempted sale violated:

A. The stipulation of the parties, in the state case;
B. The seizure of the property by the Writ of Execution; and,
C. If it was a proper sale (which it was not), then the claimed homestead exemption would have rendered any monies received by Sexton ...

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