United States District Court, S.D. Indiana, Indianapolis Division
JAMES A. CIESNIEWSKI, et al, Plaintiffs,
ARIES CAPITAL PARTNERS, INC., et al, Defendants.
ORDER ON PLAINTIFF'S MOTIONS TO COMPEL AND TO
Baker United States Magistrate Judge
underlying action, Plaintiff James Ciesniewski alleges that
Defendants Aries Capital Partners, Inc. and the Palisades
Defendants enforce and/or attempt to enforce
judgments without a legal basis. Ciesniewski claims that the
Palisades Defendants acquire judgments from businesses and
employ Aries to service the judgments, and that Aries engages
lawyers and law firms to collect the judgments. But according
to Ciesniewski, some of these collections efforts run afoul
of the Fair Debt Collection Practices Act because of a lack
of a valid assignment from the original business who won the
judgments and because the businesses had dissolved.
Ciesniewski calls the dissolved businesses “dead
companies.” A discovery dispute resulted concerning the
actions to enforce dead companies' judgments and the
lawyers and law firms involved.
trying to resolve this discovery dispute via phone calls and
email, as well as a conference with the Magistrate Judge, the
parties felt motions practice was necessary. Ciesniewski
filed the instant motion to compel. Aries and the Palisades
Defendants filed separate responses. In responding to the
motion and with the Court's leave, the Palisades
Defendants filed a surreply, but Ciesniewski filed a motion
to strike it. The Court now considers both motions
together, denies Ciesniewski's motion to strike
[Filing No. 142], and grants in part and denies in
part Ciesniewski's motion to compel. [Filing No.
119.] Defendants shall have until July 16, 2019, to
provide any responsive documents. Ciesniewski's request
for his attorney's fees is denied.
Motion to Strike
motion to strike argues the Court should strike the Palisades
Defendants' surreply because it relies on new and
improper evidence. The surreply includes a declaration from
the Palisades Defendants' vice president of business
development. [Filing No. 140.] Ciesniewski argues
the Court did not grant the Palisades Defendants leave to
file the supporting declaration, and regardless, the
declaration attempts to improperly present legal
interpretations and conclusions as evidence. [Filing No.
142, at ECF pp. 1-2 (citing Good Shepard Manor
Found. v. City of Momence, 323 F.3d 557, 564 (7th Cir.
arguments are unpersuasive. First, Ciesniewski argues that
“the proper purpose of a [sur]reply brief is to reply,
not to present new evidence, ” which is ironic given
that the Court permitted the surreply because Ciesniewski
included a new argument in his reply. [Id. at ECF p.
2.] The declaration evidence is responsive to
Ciesniewski's new argument concerning agency and
sub-agency, and there is nothing inherently improper about
including it. Second, though Ciesniewski asserts that the
declaration presents a legal argument, Ciesniewski fails to
point to supposed offending language. The declaration does
not cite legal standards, and contrary to Ciesniewski's
contention, the declaration does not claim there is no agent
or subagent relationship. Rather, it properly provides
testimonial evidence that may support that position.
[Filing No. 140, at ECF pp. 1-2.] Third, the bulk of
the motion to strike presents counter arguments to those in
the Palisades Defendants' surreply, meaning most of
Ciesniewski's motion to strike is really a sur-surreply.
[Filing No. 142, at ECF pp. 2-3, ¶¶3-6.]
And unfortunately, much of the Palisades Defendants'
response to the motion to strike is largely a
sur-sur-surreply. [Filing No. 143, at ECF p. 1.]
Enough is enough. The motion to strike is denied.
Motion to Compel
motion to compel concerns Ciesniewski's efforts to
certify a nationwide class. Ciesniewski seeks “all
documents responsive to [Ciesniewski's] First Set of
Discovery Requests that relate to the issues of class size
and the network of attorneys retained to enforce judgments on
behalf of dead companies.” [Filing No. 119, at ECF
p. 6.] Ciesniewski points to cases in which courts have
permitted similar pre-certification discovery into the size
of the potential class. [Filing No. 119, at ECF p. 6
(citing Muha v. Encore Receivable Management, Inc.,
236 F.R.D. 429, 430 (E.D. Wis. 2006); Lucas v. G.C.
Serv's, LP, 226 F.R.D. 328 (N.D. Ind. 2004);
Gray v. First Winthrop Corp., 133 F.R.D. 39
(C.D.Cal. 1990); Zahorik v. Cornell Univ., 98 F.R.D.
27 (N.D.N.Y. 1983); Walker v. World Tire Corp.,
Inc., 563 F.2d 918, 921 (8th Cir. 1977); McCray v.
Standard Oil Co., 76 F.R.D. 490, 500 (N.D. Ill. 1976)).]
Aries argues in response that the request for class size data
is premature, the motion is untimely, and the discovery is
not proportional to the needs of the case. [Filing No.
120.] The Palisades Defendants separately respond that
the requested documents are not in its control. [Filing
does not meet its burden in opposing the motion to compel.
See Belcastro v. United Airlines, Inc., 17 C 1682,
2019 WL 1651709, at *4 (N.D. Ill. Apr. 17, 2019) (objecting
party “bears the burden of showing why the request is
improper”). Aries cites Swelnis v. Universal
Fidelity L.P., No. 2:13-cv-104-PRC, 2014 U.S. Dist.
LEXIS 53058, at *8 (N.D. Ind. Apr. 17, 2014), arguing that
discovery into a putative nationwide class is premature
because Aries concedes that there are 63 putative class
members in Indiana, which should be sufficient to satisfy the
numerosity requirement to certify an Indiana class.
[Filing No. 120, at ECF pp. 3-4.] While
Swelnis supports the position that discovery into
class size is not necessary when the parties already have a
good estimate, nothing in the case supports Aries'
position that it can cut off discovery into the size of a
putative nationwide class because the numerosity requirement
has likely been met for a statewide class. See
Swelnis, 2014 U.S. Dist. LEXIS 53058, at *8. While there
may be some wisdom in testing the waters by attempting to
certify an Indiana class before expanding nationwide, Aries
provides no authority suggesting it can force Ciesniewski to
take this route.
next argues that the motion is untimely. As Ciesniewski
explains, however, the delay was largely beyond his control.
Ciesniewski filed the motion to compel a month before the
close of discovery. As Aries points out, Seventh Circuit
courts have found motions to compel filed near the discovery
deadline to be untimely. See, e.g. Wilbur v.
County of Waukesha, No. 14-cv-0046-PP, 2016 U.S. Dist.
LEXIS 99835, at *8 (E.D. Wis. July 28, 2016); Ridge
Chrysler Jeep, L.L.C. v. Daimler Chrysler Servs. N. Am.,
L.L.C., No. 03 C 760, 2004 U.S. Dist. LEXIS 26861, at *4
(N.D. Ill.Dec. 29, 2004). However, Ciesniewski persuasively
explains that he raised the issue well before the deadline,
but the required process to bring a motion to compel ran up
to the deadline. [Filing No. 119, at ECF pp. 2-4.]
Ciesniewski broached the issue with the Palisades Defendants
on January 31, 2019, and with Aries on February 14. The
parties discussed the issue in calls on February 19 and March
1 but did not reach an agreement. The parties promptly
requested the required Local Rule 37-1 conference with the
Magistrate Judge. At that March 15 conference, Ciesniewski
was ordered to produce examples of alleged improper
collections occurring outside Indiana, and Ciesniewski
produced the examples on April 1. Defendants responded on
April 24, indicating their continued objection to the
discovery, and Ciesniewski filed his motion on May 14.
Nothing in this scenario suggests Ciesniewski lacked
diligence, and the Court will not deny the motion as
Aries argues the discovery is not proportional to the needs
of the case, as required by Rule 26(b)(1). In determining
whether discovery is proportional, the Court considers
“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.” Fed.R.Civ.P. 26(b)(1).
Aries argues that the discovery would be exceptionally time
consuming and difficult because it would have to scour
dockets all across the country, looking for enforcement
actions brought in the name of the dead companies and
checking individual docket entries. Aries points out that
this is the exact same process that Ciesniewski argues would
be overly burdensome for him to have to do. However,
Ciesniewski replies that Aries retained the lawyers and law
firms who filed the enforcement actions, so there is no
reason Aries could not obtain the information from its
lawyers. The amount in controversy in this potential
nationwide class is significant, and Aries is in the best
position to access this information. Thus, the Court is not
convinced that the discovery of this relevant information
would be disproportionate to the needs of the case, and the
Court grants Ciesniewski's motion with respect to Aries.
The Palisades ...