United States District Court, D. Connecticut
RULING ON MOTION FOR SUMMARY JUDGMENT AND MOTION TO
A. Bolden United States District Judge.
Garcia (“Plaintiff”) sued the Law Offices of
Howard Lee Schiff, P.C. (“Defendant” or
“Schiff”), alleging violations of the Fair Debt
Collections Practices Act, 15 U.S.C. § 1692, et
seq. (“FDCPA”), because of a collection
letter concerning the balance due on Mr. Garcia's First
Premier Bank Visa credit card. Schiff has moved for summary
judgment, arguing that Mr. Garcia failed to timely respond to
a request for admission, those facts are deemed admitted and
that therefore there remain no disputes of material fact. Mr.
Garcia subsequently moved to withdraw his admissions under
Federal Rule of Civil Procedure 36(b).
reasons state below, Garcia's motion is
GRANTED. Schiff's motion is therefore
DENIED as premature and without prejudice to
FACTUAL AND PROCEDURAL BACKGROUND
Garcia lives in Waterbury, Connecticut. See Compl.
¶ 4, ECF No. 1. Schiff, a law firm, located in East
Hartford Connecticut, is a “debt collector” under
15 U.S.C. § 1692(a)(6) and the FDCPA. Id.
Garcia alleges that he received a collection letter from
Schiff regarding his First Premier Bank account. Id.
¶ 9. The letter stated that his account was “being
serviced by Law Offices of Howard Lee Schiff, P.C.” The
letter stated that the “charge off balance” was
$633.94 and the “current balance” was $565.46,
although the letter also listed “$0” next to a
section labelled “post charge-off payments &
credits.” Compl. ¶¶ 10-11; see also
Letter, Mot. to Dismiss, Ex. 1, ECF No. 11. Mr. Garcia
alleges that the Letter “ma[de] it impossible for a
consumer to know how much is owed and if the debt will be
considered paid if payment is made in full.” Compl.
¶ 13. He further alleges that the letter violated the
FDCPA, which prohibits “deceptive, misleading, and
unfair debt collection practices.” Id.
Garcia filed the initial complaint in this matter on May 23,
2016, alleging that Schiff's letter violated
“various provisions of the FDCPA, U.S.C. §§
1692d, 1692e, 1692e(2), 1692e(5), 1692e(7), 1692e(8),
1692e(10), 1692f, and 1692f(1).” Compl. ¶ 17.
Schiff then moved to dismiss the Complaint, arguing that Mr.
Garcia did not have standing and that he had failed to allege
violations of the FDCPA. See Mot. to Dismiss, ECF
Court allowed two claims to proceed but dismissed the rest.
See Ruling on Def. Mot. to Dismiss, ECF No. 17. The
Court held that Mr. Garcia had standing to sue. Id.
at 4-7. The Court concluded that “that the least
sophisticated consumer might be confused by the Letter's
reference to multiple amounts of debts . . . .” and
therefore allowed claims to proceed under 15 U.S.C.
§§ 1692e. Id. at 12. It also held that Mr.
Garcia had pleaded violations of 15 U.S.C. § 1692e(10),
a subsection that “reiterates the section's general
prohibition of false or deceptive representations and adds
that such misrepresentations may not be used to attempt to
collect any debt or obtain information concerning
consumers.” Id. at 15. The remaining claims
under 15 U.S.C. §§ 1692e(2), 1692e(5), 1692e(7),
1692e(8) were dismissed under Federal Rule of Civil Procedure
12(b)(6). Id. Additionally, the Court dismissed
claims under 15 U.S.C. § 1692d, finding that Mr. Garcia
had not “point[ed] to language from the Letter that he
found ‘harassing' or ‘abusive.'”
Id. at 8. The Court also dismissed claims under 15
U.S.C. § 1692f, finding that the single letter Mr.
Garcia received from Schiff was insufficient to demonstrate
“unfair or unconscionable conduct.” Id.
the Court's Ruling, the parties submitted a joint report
of their planning meeting under Federal Rule of Civil
Procedure 26(f). See Report, ECF No. 20. The parties
contemplated that “[a]ll discovery . . . will be
commenced by June 1, 2017 and completed (not propounded) by
November 30, 2017.” At a settlement conference,
Magistrate Judge Fitzsimmons denied a “blanket
extension request of sixty (60) days, ” but ordered
that “[a]ll discovery, including depositions of expert
witnesses will be completed (not propounded) by December 29,
2017.” See Scheduling Order, ECF No. 30.
Dispositive motions were to be due by January 15, 2018.
7, 2017, the same day the scheduling order was entered,
Schiff moved for summary judgment. See Def. Mot.
Summ. J., ECF No. 31. Schiff argued that Mr. Garcia had
failed to respond to several requests for admission that were
served on May 31, 2017. Schiff therefore argued that those
matters were deemed admitted under Federal Rule of Civil
Procedure 36. Id. at 2. Additionally, Defendant
argued that these admitted facts demonstrated that
“there was nothing ‘false' or
‘misleading' contained in the February 12, 2016
letter” and therefore no violation of 15 U.S.C.
§§ 1692e and 1692e(10). Id. at 4.
Garcia then moved to amend or withdraw his responses to
admission on August 3, 2017. See Pl. Mot. to Amend.,
ECF No. 35. He argued that counsel for both parties had
“agreed that the parties would not serve discovery in
this matter until they had participated in a Settlement
Conference, ” but that counsel for the defendant had
breached that agreement by prematurely serving requests for
admission. Id. ¶¶ 1-2.
he argues that his counsel contacted counsel for Defendant
“and requested that they call the Court to decide the
pending discovery dispute . . .” but counsel refused
and then moved for summary judgment. Id. ¶ 8.
Citing Rule 36, Mr. Garcia “requests leave of this
Court to Withdraw and Amend its [sic] Response to Admissions,
” stating that he intended to file an amended
complaint, had valid claims against the Defendant, and that
Defendant would not be prejudiced because discovery had yet
to be completed and would not be due for several more months.
Id. ¶¶ 10-13. Plaintiff also submitted an
affidavit signed by his counsel, Yaakov Saks, in support of
the motion. See Saks Aff., Pl. Mot. to Amend., Ex.
1, ECF No. 35-1.
did not file a response to the motion. Instead, Jeanine
Dumont - a partner at Schiff who has filed an appearance for
Schiff in this case - submitted an affidavit styled “in
opposition” to Plaintiff's motion. See
Dumont Aff., ECF No. 36. Attorney Dumont disputed whether
counsel had agreed that parties would not serve discovery
until after the settlement conference, stating that
“[t]hese statements are completely false.”
Id. ¶ 3. The remainder of the affidavit
described communication between the parties, “an
outrageous display of incivility by Attorney Saks” at a
settlement conference, id. ¶ 10, and cursory
arguments regarding discovery and amendment of the complaint.
Id. ¶¶ 11-13. Finally, the affidavit
concludes: “It appears that Mr. Saks has fabricated an
alleged agreement with the undersigned not to serve discovery
before the Settlement Conference because he failed to respond
to the Requests for Admission in a timely manner, and now has
no valid excuse for failing to respond.” Id.
¶ 14. The affidavit does not assert that Defendant would
be prejudiced by the withdrawal of the admissions.
Garcia then filed an opposition to Defendant's motion for
summary judgment. See Pl. Mem. of L. in Opp.
(“Pl. Opp.”), ECF No. 37. The memorandum appears
to assert a new cause of action based on a recent collection
letter sent to Plaintiff on June 22, 2017. Garcia argues that
“As Defendant's June 27, 2017 letter brings new
facts into this case, Defendant's Motion for Summary
Judgment must be denied.” Id. at 4. He also argued
that, should the pending motion to withdraw admission be
granted, the motion for summary judgment would be moot.
Id. at 7 (asserting, without citation, “Mr.
Garcia was forced to file the Motion for Leave to Withdraw
and Amend his Responses to Admissions because the parties
were unable to resolve their discovery disputes. Plaintiff
has been prejudiced by Defendant's seeming unwillingness
to address this discovery dispute with the court.”).
Finally, he argued that there were other pending discovery
disputes. Id. at 7-9 (alleging two
discovery disputes related to the request for admissions and
one related to a deposition).
filed a reply. See Def. Mot. Summ. J. Rep. Br.
(“Def. MSJ Rep.”), ECF No. 38. In its reply,
Schiff raised the issue of prejudice for the first time,
stating that “Defendant's counsel devoted hours to
the preparation and attendance at the Settlement Conference -
many of those hours were devoted laboring under the belief
that the Requests for Admissions would be deemed admitted
since they were unanswered.” Id. at 2.
Additionally, Defendant notes that it “has been forced
to notice the deposition of the plaintiff to be prepared to
address the issues in this case” should the motion to
withdraw be granted, and cursorily concludes this
demonstrates that Schiff would be prejudiced “at this
stage given the time and effort that has been devoted to this
case.” Id. Schiff also argues that the
Plaintiff should not be allowed to amend the Complaint and,
even if the Court considered allegations related to a second
collection letter, Schiff would still be entitled to summary
judgment. Id. 4-5.