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Ross v. O'Hara

United States District Court, N.D. Indiana

July 29, 2019

ANGELA ELVITA ROSS, Plaintiff,
v.
JONATHAN R. O'HARA, Defendant.

          OPINION AND ORDER

          HOLLY A. BRADY JUDGE

         After Plaintiff Angela Elvita Ross sued Defendant Jonathan R. O'Hara, he filed a Motion for Summary Judgment [ECF No. 18], asserting that the Court should grant judgment in his favor as a matter of law. Rather than respond to the Motion by identifying material issues of fact that preclude the entry of judgment, Plaintiff moved for an extension of time or to stay the proceedings on Plaintiff's Motion for Summary Judgment until the conclusion of discovery [ECF No. 19].

         Magistrate Judge Andrew P. Rodovich issued an Opinion and Order [ECF No. 22] denying Plaintiff's Motion for Extension of Time or to Stay Proceedings on Plaintiff's Motion for Summary Judgment. The Magistrate Judge found that Plaintiff had not satisfied her burden under Federal Rule of Civil Procedure 56(d) to identify specific evidence that would create a genuine issue of material fact if Plaintiff were given additional time to conduct discovery before responding to Defendant's Motion for Summary Judgment. Rather, Plaintiff had only offered generalities about the need for further discovery. The Magistrate Judge granted Plaintiff twenty-one days to respond to the Motion for Summary Judgment.

         Plaintiff disagrees with the Magistrate Judge's ruling and maintains that she should be given an opportunity to conduct discovery before responding to Defendant's Motion. This matter is before the Court on Plaintiff's Objection to Magistrate's Ruling Denying Plaintiff the Ability to Conduct Any Discovery Before Responding to Defendant's Motion for Summary Judgment [ECF No. 23].

         Additionally, Plaintiff has filed a Motion to Strike Defendant's Motion for Summary Judgment [ECF No. 24], and a Motion to Strike Affidavit of Jonathan O'Hara [ECF No. 25].

         STANDARD OF REVIEW

         Pursuant to Federal Rule of Civil Procedure 72(a), a party may serve and file objections to a magistrate judge's order pertaining to a non-dispositive pretrial matter within 14 days after being served with a copy of the order. Fed.R.Civ.P. 72(a). “The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Id.; see also 28 U.S.C. § 636(b)(1)(A) (providing for reconsideration by district court judge of any pretrial matter designated to a magistrate “where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law”).

         Rule 72(a) grants magistrate judges great latitude in resolving non-dispositive matters, like the one at issue here. “The clear error standard means that the district court can overturn the magistrate judge's ruling only if the district court is left with the definite and firm conviction that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir. 1997); see also Pinkston v. Madry, 440 F.3d 879, 888 (7th Cir. 2006) (referring to the clear error standard as “extremely deferential”).

         “Under the ‘contrary to law' standard, the district court conducts a plenary review of the magistrate judge's purely legal determinations, setting aside the magistrate judge's order only if it applied an incorrect legal standard, ” Jensen v. Solvay Chems., Inc., 520 F.Supp.2d 1349, 1351 (D. Wyo. 2007), or if it “misapplie[d] relevant statutes, case law, or rules of procedure, ” DeFazio v. Wallis, 459 F.Supp.2d 159, 163 (E.D.N.Y. 2006) (quoting Catskill Dev., L.L.C. v. Park Place Entm't Corp., 206 F.R.D. 78, 86 (S.D.N.Y. 2002)).

         ANALYSIS

         A. Background

         1. Complaint Allegations

         On March 22, 2018, Plaintiff filed her Complaint pursuant to the Fair Debt Collection Practices Act (FDCPA). She alleges that Defendant, a lawyer and a debt collector, violated the Act when he sent her the letter attached as Exhibit A to the Complaint (the Letter) attempting to collect a debt for a third party. The Letter, sent on March 23, 2017, is addressed to Angela E. Ross aka Briana Elise Ross-Williams. Briana Elise Ross-Williams is Plaintiff's daughter, and they lived together in Jacksonville, Florida. The letter purports to collect a debt related to “'Walmart Stores, Inc, #1618 vs Angela E. Ross Aka Briana Elise Ross-Williams, 45H03-9805-CP-1743' and ‘Total Amount due: 1040.00'. This account relates to a judgment obtained in 1998 for an alleged NSF check issued in 1997 for a purchase or purchases for a consumer purpose at Wal-Mart.” (Compl. ¶ 7.)

         The Letter states, in part, “Please find enclosed a copy of a motion and order I have filed with the Court. This motion and order was [sic] issued because you failed to appear at a hearing on contempt filed by the Court. This matter is now very serious and you could be arrested at any time.” (Id. ¶ 8.) The Letter continues: “You basically have 2 options right now. If you pay the amount due mentioned above, I will file a motion to have the bench warrant-body attachment recalled and that will be the end of the case. If you are unable to pay the full amount, then you will need to talk to me about a plan of repayment.” (Id. ¶ 9.)

         Plaintiff did not have any knowledge of the body attachment, or any efforts to obtain a body attachment, until she received the Letter and made additional telephone calls to the clerk in Gary, Indiana. (Id. ¶ 13.) Defendant did, in fact, obtain a body attachment on behalf of his client in Gary City Court. (Id. ¶ 15.) The Letter caused Plaintiff to worry that she or her daughter, who attended college in Chicago, might be arrested as they traveled through northern Indiana. (Id. ¶ 10.)

         Plaintiff alleges that Defendant was aware that Plaintiff lived in Florida and would not be able to attend a proceeding supplemental in Indiana. Accordingly, he knew that a body attachment would be granted, and that it would be “an effective tactic to coerce payment out of fear.” (Id. ¶ 15.) “More importantly, [Defendant] had the experience to know that an out-of-state jurisdiction would be unlikely to actually detain a person on an Indiana bench warrant, so something else would be necessary to coerce payment, and that something was the letter like the one received by [Plaintiff].” (Id.) Plaintiff alleges that “[t]he combination of the strategy of obtaining a body attachment in a distant forum combined with a letter ...


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