Chavez v. Northland Group, CV-09-2521-PHX-LOA
| Decision Date | 01 February 2011 |
| Docket Number | No. CV-09-2521-PHX-LOA,CV-09-2521-PHX-LOA |
| Parties | Rudolph Chavez, Plaintiff, v. Northland Group, Defendant. |
| Court | U.S. District Court — District of Arizona |
This matter is before the Court on Plaintiff's Motion to Dismiss with Prejudice. (Doc. 36) Defendant does not oppose dismissal, but seeks payment of its costs and attorney's fees. (Doc. 38) The undersigned Magistrate Judge has jurisdiction over this matter because all parties have consented in writing to magistrate-judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1). (Docs. 7, 12, 29) After consideration of the parties' briefing on the motion and relevant legal authority, the Court will grant Plaintiff's Motion to Dismiss with Prejudice and will deny Defendant's request for attorney's fees and costs.
On December 3, 2009, Plaintiff, represented by Krohn & Moss, Ltd. ("K&M""), filed suit invoking this Court's federal question jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff alleges violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"), which was enacted in 1977 "'to eliminate abusive practices, not disadvantage ethical debt collections, and promote consistent state action.'" Bieber v. Associated Collection Services, Inc., 631 F.Supp. 1410, 1414 (D.Kan. 1986) (quoting S.Rep. No. 382, 95th Cong., 1st Sess. 7, U.S. Code Congressional and Administrative News 1977, pp. 1695, 1701)); 15 U.S.C. § 1692(e). Specifically, Plaintiff alleges that Defendant "placed constant and continuous collection calls to Plaintiff in violation of the FDCPA. (Doc. 1 at 3) Plaintiff further alleges that Defendant failed to meaningfully identify the caller or to identify itself as a debt collector. (Id.)
Defendant argues that Plaintiff's allegations are baseless and that he filed a "boilerplate claim." (Doc. 38 at 1) Defendant argues that upon learning that Plaintiff had filed the Complaint, it searched its database and found that it did not have an account with Plaintiff's name. (Doc. 38-2; Affidavit of Valerie Bartosh ¶ 3 ("Bartosh Aff.")) Based upon the telephone number in the Complaint, Defendant identified a collection account in the name of a third party, referred to as John Doe. (Doc. 38-2; Bartosh Aff.¶¶ 4-5) Defendant's investigation revealed that on or about October 12, 2009, one of Defendant's clients forwarded an account in the name of John Doe for collection purposes. Id. Defendant attempted to contact John Doe and made four unsuccessful attempts by calling the telephone number identified in the Complaint. On November 10, 2009, a man, presumably Plaintiff, answered Defendant's fifth call and had the following 24-second exchange with Defendant's representative:
Northland: Hello
Chavez: Hello
Northland: Hi, I'm trying to reach S****
Chavez: C***
Northland: S****
Chavez: Oh...No, ma'am he hasn't lived here in five years.
Northland: Oh, I see. Do you happen to know a better way to get a hold of him.
Chavez: No, I sure don't. Uh, last I heard he moved to Texas.
Northland: Oh, ok. Well, I'll update my records then. Thank you so much.
Chavez: You bet.
Northland: Bye bye.
Defendant marked the phone number as "bad" and did not make any subsequent calls to that number. (Id. at ¶ 7)
Defendant states that after viewing Plaintiff's Complaint on PACER, counsel for Defendant e-mailed Plaintiff's counsel, Ryan Lee of K&M, on December 11, 2009, seeking additional information, a settlement demand, and to offer to accept service to avoid that litigation expense. (Doc. 38, Olson Affidavit, Exh. D) Having received no response, on December 15, 2009, Defendant's attorney e-mailed Mr. Lee to follow-up on the December 11, 2009 e-mail. Mr. Lee never responded to either e-mail. (Doc. 38, Olson Aff. ¶ 7-8) On December 22, 2009 and again on February 12, 2010, Defendant was served with the Summons and Complaint. (Doc. 38, Bartosh Aff. ¶ 9) On January 12, 2010, Defendant filed an Answer, denying Plaintiff's allegations. (Doc. 9)
Thereafter, on March 2, 2010, Plaintiff served on Defendant Interrogatories, Requests for Admissions, and Requests for Documents. (Doc. 38, Olson Aff., Exhs. F, G, H) Defendant complains that the discovery requests were "boilerplate" and included, in the aggregate, "70 + Interrogatories, Requests for Admissions and Requests for Documents." (Doc. 38 at 5) Although Defendant describes Plaintiff's discovery requests as "far reaching, " doc. 38 at 14, the record reflects that Defendant never objected to the nature or number of discovery requests.
On March 3, 2010, the parties had their Rule 16 scheduling conference with the Court during which Defendant's counsel indicated that Plaintiff's claims lacked merit and that it intended to file a dispositive motion. (Doc. 83, Donald Peder Johnson ¶ 3) Defendant further argues that on March 17, 2010, it noticed Plaintiff's deposition for April 1, 2010. On March 26, 2010, Plaintiff's counsel advised Defendant, without explanation, that Plaintiff could not appear for his deposition and that K&M was withdrawing from the case. (Doc. 83, Johnson Aff. ¶ 5) Defendant's counsel advised K&M that it had already purchased a plane ticket for the deposition, and Plaintiff's counsel indicated that Plaintiff could not be available until May 17, 2010. Plaintiff was never deposed. (Doc. 38 at 7) On March 15, 2010, Plaintiff's counsel made a settlement demand. (Doc. 38 at 6; Olson Aff., Exh. L)
On April 2, 2010, Defendant served its discovery responses on Plaintiff and reiteratedthat it could not find a debt or account belonging the Plaintiff. (Doc. 38 at 7) On April 20, 2010, Plaintiff's counsel was provided with redacted copies of documents relating to John Doe's account.
Thereafter, Plaintiff sought Defendant's stipulation to dismiss this case-each party to bear its own costs and fees. (Doc. 83, Johnsen Aff. ¶ 6) Defendant declined and offered to stipulate to dismissal upon payment of $2,500.00 of Defendant's costs and fees. (Id.) In response, Plaintiff filed the pending motion to dismiss with prejudice.
Plaintiff has filed a motion to voluntarily dismiss his Complaint with prejudice to "bring the litigation to a conclusion without further expense on the part of Plaintiff or Defendant." (Doc. 36 at 2) Plaintiff further states that "this case has barely been litigated since discovery has not been completed nor any deposition has been taken." (Id. at 2-3) In his Reply, Plaintiff asserts that he seeks voluntarily dismissal of his Complaint because he "suffers from severe cirrhosis of the liver and requires a liver transplant." (Doc. 42 at 1) He further alleges that his medical condition causes memory problems "which prevents him from remembering specific details regarding additional calls Defendant placed with Plaintiff." (Doc. 42 at 1-2) In support of his Reply, Plaintiff submits his Declaration and a letter authored by Daljit S. Bal, M.D., dated June 21, 2005 addressed "To Whom it May Concern, " which states that Plaintiff has severe cirrhosis of the liver. The June 21, 2005 letter further stated that twice during the five months preceding June 21, 2005, Plaintiff was admitted to the "C.C.U. unit at Banner Health Hospital" for hemmorhaging and encephalopahy and that "[h]epatic encephalopahy makes the patient unable to care for himself [including] remembering." Finally, the letter indicates that Plaintiff's "medical emergency is ongoing." (Id.) Although Plaintiff has apparently suffered from cirrhosis of the liver since, at least, as early as June 21, 2005, he does not explain why he was able to commence this action while suffering from that condition, but now cannot continue to pursue his action. The extent to which Plaintiff's medical condition impedes his ability to litigate this action, however, is not significant because Defendant does not oppose dismissal of Plaintiff's case withprejudice. (Doc. 38) Rather, Defendant argues it should not have to pay its attorney's fees and costs incurred thus far. (Doc. 38) Defendant seeks to recover costs and attorney's fees under 15 U.S.C. § 1692k(a)(3), 28 U.S.C. § 1927, Federal Rule of Civil Procedure 11, and the inherent power of the court.
Federal Rule of Civil Procedure Rule 41(a) governs the voluntary dismissal of an action in federal court. Rule 41(a)(2) provides that unless a plaintiff files a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment, or the parties stipulate to the dismissal of the action, "[a]n action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper...." Fed.R.Civ.P. § 41(a)(2). The decision to grant or deny a motion pursuant to Rule 41(a)(2) is within the sound discretion of the trial court and may be reviewed only for abuse of that discretion. Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980). A motion for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2) should be granted unless a defendant can show that it will suffer some plain legal prejudice as a result of the dismissal. Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001); Stevedoring, 889 F.2d at 921 (). Because Rule 41(a)(2) exists chiefly for the defendant's protection, the district court has the discretion to condition a dismissal without prejudice upon the payment of "appropriate costs and attorney fees." Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996).1 The payment of fees, however, is not a prerequisite to a Rule 41(a) dismissal. Stevedoring Servs. of Am. v. Armilla Intern. B.V., 889 F.2d 919, 921 (9th Cir. 1989) (...
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