Miller. v. MediCredit, Inc.
Miller. v. MediCredit, Inc.
2019 WL 13251352 (E.D. Va. 2019)
September 3, 2019
Lauck, Mary Hannah, United States District Judge
Summary
The Court noted that Miller and MediCredit had exchanged Rule 26(a)(1) disclosures and exchanged initial written discovery requests and were scheduling depositions. The Court also noted that the scope of discovery includes ESI, and that Miller must follow the Local Rules for the Eastern District of Virginia when seeking sanctions.
Ross A. MILLER., Plaintiff,
v.
MEDICREDIT, INC., Defendant
v.
MEDICREDIT, INC., Defendant
Civil Action No. 3:18cv603
United States District Court, E.D. Virginia, Richmond Division
Signed September 03, 2019
Counsel
Ross A. Miller, Richmond, VA, Pro Se.Kyle Reese Elliott, Ogletree Deakins Nash Smoak & Stewart PC, Richmond, VA, John Donald Ryan, Pro Hac Vice, Spencer Fane LLP, Cape Girardeau, MO, for Defendant.
Lauck, Mary Hannah, United States District Judge
MEMORANDUM ORDER
*1 This matter comes before the Court on eight motions:
(2) Miller's “Motion or Entry of Default,” (“Motion for Default”), (ECF No. 21);
(3) Miller's “Motion to Stay Rule 26(f) Conference,” (“Motion to Stay”), (ECF No. 23);
(4) Miller's “Motion to Suspend Discovery Until Previous Motions are Ruled On,” (“Motion to Suspend Discovery”). (ECF No. 26);
(5) Defendant MediCredit, Inc.'s (“MediCredit”) “Motion to Strike Plaintiffs February 19, 201 “Pleading,” (“MediCredit's Motion to Strike”), (ECF No. 29):
(6) Miller's Motion for Leave to File “Response to Defendant's Opposition to His Motions and Request for Court's Ruling On Motions,” (“Motion for Leave to File”). (ECF No. 30);
(7) Miller's “Motion to Compel Meet and Confer Regarding Inadequate Responses to Written Discovery,” (“Motion to Compel Meet and Confer”), (ECF No. 31), and;
(8) Miller's “Motion for Sanctions, with Memorandum in Support” (“Motion for Sanctions”), (ECF No. 32).
I. Background
On August 31, 2018, Miller brought this suit against MediCredit, alleging violations of the Fair Debt Collection Practices Act (“FDCPA”). See generally 15 U.S.C. § 1692 (Congressional findings and declaration of purpose for FDCPA). The case stems from MediCredit's efforts to collect payment from Miller after Miller visited his health care provider and allegedly did not pay his provider in full. The Court twice allowed Miller to amend his Complaint. (See ECF Nos. 7, 8, 14, 15, 17.) MediCredit answered Miller's Complaint and Amended Complaints. (ECF Nos. 4, 16.) Miller subsequently filed seven of the motions at bar, all of which pertain to the ordinary course of litigation. MediCredit responded to the motions. (ECF Nos. 25, 27, 33), filed a Motion to Strike, (ECF No. 29), and filed a Motion for Summary Judgment, (ECF No. 36).[2] The Court now addresses each of Miller's seven motions and MediCredit's Motion to Strike.
II. Plaintiff's Motion to Strike
In his first motion, Miller asks this Court to strike MediCredit's affirmative defenses from its answer because MediCredit “appears to have cited whatever defense it could think of.” (Mot. Strike 1, ECF No. 19.) Miller contends MediCredit's defenses “are legally insufficient conclusory, and devoid of sufficient facts to give [Miller] meaningful notice of specific defenses to his specific claims.” (Mot. Strike 1.) In response, MediCredit argues that Miller did not timely file his Motion to Strike, that the Motion to Strike lacks merit, and that, in any event, the Court should grant MediCredit the opportunity to amend its answer if needed. (Rcsp. Mot. to Strike, ECF No. 27 at 6-7.) The Court will deny Miller's Motion to Strike. (ECF No. 19.)
*2 Miller's Motion to Strike does not comply with Local Rule 7(F)(1), which states, in relevant part: “All motions, unless otherwise directed by the Court and except as noted herein below in subsection 7(F)(2)[[3]] shall be accompanied by a written brief setting forth a concise statement of the facts and supporting reasons, along with a citation of the authorities upon which the movant relies.” E.D. Va. Loc. Civ. R. 7(F)(1). Despite this, Miller's Motion to Strike consists of a single document. Because Miller failed to file his supporting brief separate from the motion itself, the motion violates the Local Rules.
In addition to this Local Rules deficiency, Miller filed his Motion to Strike out of time and without good cause for doing so. Federal Rule of Civil Procedure 12(0(2) dictates that the court may grant a motion to strike an insufficient defense pursuant to Rule 12(f) either on its own or “on motion made by a party either before responding to the pleading or. if a response is not allowed, within 21 days after being served with the pleading.” Fed. R. Civ. P. 12(0(2). As a result, Rule 12(0(2) required Miller to file his Motion to Strike within twenty-one days of MediCredit's Answer.
Miller, however, filed his Motion to Strike more than twenty-one days after MediCredit filed its Answer to Miller's Second Amended Complaint. (See ECF Nos. 16, 19.) On October 23, 2018, MediCredit filed its Answer to Miller's Second Amended Complaint, “with a true copy e-mailed and mailed, first class postage prepaid, return receipt requested to Ross A. Miller.” (Answer to Second Am. Compl. 10, ECF No. 16.) On November 27. 2018—thirty-six days later—Miller filed his Motion to Strike. (ECF No. 19.) Although Miller claims he did not receive MediCredit's Answer until November 26. 2018, MediCredit stated that Miller “received and objected” to its Answer. (Plaintiff's Mot. Strike 2, ECF No. 29.) Furthermore. Miller does not dispute the accuracy of his mailing address and email address that MediCredit listed in its Certificate of Service. (Answer to Second Am. Compl. 10.) The Court sees no reason to grant Miller's belated Motion to Strike.
Finally, even if the Court were to consider the merits of Miller's Motion to Strike, the Court would likely exercise its discretion to deny the motion. The United States Court of Appeals for the Fourth Circuit has noted that Rule 12(f) motions are generally viewed with disfavor “because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.” Waste Mgmt. Holdings. Inc. v. Gilmore. 252 F.3d 316, 347 (4th Cir. 2001) (internal citations and quotations omitted). “The decision whether to strike an affirmative defense is discretionary and courts generally refrain from striking affirmative defenses absent a showing that not doing so would unfairly prejudice the movant.” Lockheed Martin Corp. v. United States, 973 F. Supp. 2d 591, 592 (D. Md. 2013). Because motions to strike affirmative defenses are generally disfavored, and because Miller filed his motion late and without good cause for doing so. the Court denies Miller's Motion to Strike. (ECF No. 19.)
III. Plaintiff's Motion for Default
The Court next considers Miller's Motion for Default. The Clerk enters default only “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.” Fed. R. Civ. P. 55(a). The docket reflects that MediCredit timely answered Miller's Complaint and Amended Complaints. Because MediCredit has answered and defended itself, no basis for granting Miller's Motion for Default exists. Accordingly, the Court will deny Miller's Motion for Default. (ECF No. 21.)
IV. Plaintiff's Discovery Motions
*3 The Court next evaluates Miller's Motion to Stay, Motion to Suspend Discovery, Motion to Compel Meet and Confer, and Motion for Sanctions, all of which pertain to discovery and related interactions with opposing counsel. MediCredit responded to the motions, noting their mootness and lack of merit. (ECF Nos. 27, 33.) After due consideration, the Court will deny each of Miller's discovery-based motions.
In the Motion to Stay, Miller asks the Court to stay the Rule 26(f) conference until the Court rules on his Motion for Default. (Mot. Stay 1, ECF No. 23.) In the Motion to Suspend Discovery, Miller asks the Court to “suspend Discovery, disclosures or other Defendant imposed requirements until the Court can rule on pending motions and until the court can review Plaintiff's input regarding the Rule 26(f) Conference.” (Mot. Suspend Disc. 2, ECF No. 26.) In the Motion to Compel Meet and Confer, Miller complains that opposing counsel required a conference call to proceed with discovery in this litigation, and that opposing counsel required Miller to “pay for his portion of the conference call.” (Mot. Meet and Confer 2, ECF No. 31.) Miller contends opposing counsel refused to take a direct call from him. and that requiring a conference call is “unreasonable.” (Id.)
In the Motion for Sanctions, Miller complains that he had to spend $150 to produce, type, mail, and deliver his motions to the Courthouse. (Mot. Sanctions 4, ECF No. 32.) Miller attaches to his Motion for Sanctions an email chain between himself and opposing counsel, arguing that the emails show opposing counsel engaging in “blatant hostile and unreasonable conduct [that] must not go unchecked,” suggesting that a “$10,000 sanction would get their attention and achieve the necessary signal, punishment and deterrent.” (Id.) Each of these discovery-based motions lack merit and, in any event, are rendered moot through Miller's participation in discovery.
Miller brought this action in Federal Court. Although pro se litigants are entitled to some deference from courts, see, e.g., Haines v. Kerner, 404 U.S. 519 (1972), they are nonetheless subject to the same requirements and respect for court orders and procedural rules as other litigants, see Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (stating that pro se litigants must meet certain standards, including “respect for court orders without which effective judicial administration would be impossible”); see also Garity v. Donahoe, No. 2:11CV01805, 2014 WL 1168913, at *6 (D. Nev. Mar. 21, 2014) (unpublished) (“Indeed, a litigant's pro se status does not relieve her of obligations to comply with discovery rules.”). Even as a pro se litigant, Miller must comply with the Federal Rules of Civil Procedure and the Local Civil Rules for the United States District Court for the Eastern District of Virginia. The Rules require participating in a Rule 26(f) Conference, engaging in discovery, and making relevant information available to litigants.[4]
*4 In his motions, Miller presents no basis for suspending discovery, nor does he show that opposing counsel acted unreasonably in their requests for a required Rule 26(f) conference and a conference call to discuss discovery matters. Furthermore, on February 20, 2019 MediCredit asserted that the parties have “exchanged Rule 26(a)(1) disclosures and exchanged initial written discovery requests and are scheduling depositions.” (Mot. Strike 3, ECF No. 29.) More than six months have passed since that assertion. MediCredit has filed a Motion for Summary Judgment that cites Miller's depositions and materials obtained from the discovery process. (See generally Mem. in Supp. Mot. Summ. J. ECF No. 37.) As such, Miller's motions regarding discovery are both meritless and moot. The Court will deny the Motion to Stay, (ECF No. 23), the Motion to Suspend Discovery, (ECF No. 26), and the Motion to Compel Meet and Confer, (ECF No. 31).
The Court will also deny Miller's Motion for Sanctions. As plaintiff. Miller initiated this action against MediCredit. The record does not show that Counsel for MediCredit ignored Miller or their duties as officers of the Court. To the contrary, the emails Miller attached to his Motion for Sanctions show that opposing counsel arranged with Miller a conference call, waited for five minutes on the conference call for Miller to dial in, and answered Miller's letters and correspondence regarding this case. (ECF No. 32-2.) These actions, which appear reasonable, are a far cry from justifying sanctions. Because the Court sees no basis on the record before it for taking an action as drastic as awarding sanctions to Miller,[5] the Court will deny Miller's Motion for Sanctions.
V. Defendant's Motion to Strike and Plaintiffs Motion for Leave to File
The Court turns next to the remaining two motions, both of which require reviewing this Court's requirements for pretrial motions and timeliness. MediCredit moved to strike Miller's February 19, 2019 pleading based on immateriality and timeliness. (Mot. Strike, ECF No. 29.) In the Motion to Strike, MediCredit asserts that Miller has “peppered [his reply] with unfounded and unjustified allegations about counsel for Medicredit[,] none of which pertain to his debt or the collection of that debt.” (Mot. Strike 3–4, ECF No. 29.) MediCredit further states that “[m]any of these unrelated allegations are also included in [Miller's] discovery requests, where, for example, [Miller] seeks admissions and information related to the law firms and attorneys working on behalf of Medicredit.” (Id. at 4.)
Seven days later, Miller filed a motion for “leave to file the attached Motion.” (Mot. Leave File 1, ECF No. 30.) Miller entitled the attached motion his “Response to Defendant's Opposition to His Motions and Request for Court's Ruling on Motions.” (Resp., ECF No. 30–1.) In that Motion, Miller states that opposing counsel refused to stay discovery and that opposing counsel “abused the process or lied about important matters both to the Court and to the Plaintiff.” (Resp., ECF No. 30-1 at 3.) Miller asserts, for example, that opposing counsel did not inform him that “the admissions would be deemed admitted if not timely answered within 30 days.” (ECF No. 30-1 at 2.) Miller also indicates that because opposing counsel would not stay discovery he was “forced to spend time responding to discovery over the holidays, rather than travel and spend time with his family.” (Id.) Miller acknowledges that his motion “should have been labeled a motion for the Court's own Scheduling Order.” (Id.)
*5 The Local Rules of Civil Procedure provide that moving parties may file a reply brief within six days following a response from a non-moving party. E.D. Va. Loc. Civ. R. 7(F). On December 11, 2018, MediCredit filed its response in opposition to Miller's Motion to Strike, Motion for Default, Motion to Stay, and Motion to Suspend Discovery. On February 19, 2019— seventy days later—Miller replied to MediCredit's response. Because Miller did not timely reply to MediCredit's response and provided the Court with no good cause for his inordinate delay, the Court will grant the Motion to Strike.
The Court will also deny Miller's Motion for Leave to File. The Federal Rules of Civil Procedure govern civil pretrial and trial practice in the federal courts. While the Court remains mindful of Miller's pro se status, Miller cannot opt out of rules he finds inconvenient or ignore timelines that require diligence on his part to continue the litigation he initiated. See. e.g., Grant v. Target Corp., 281 F.R.D. 299, 307 (S.D. Ohio 2012) (“Pro se litigants are not to be accorded any special consideration when they fail to adhere to readily-comprehended court deadlines.”). As a litigant who files often in this Court.[6] Miller should know that the Rules are not mere suggestions. To the extent that he does not. the Court now reminds him. The Rules impose obligatory disclosures of information, specific filing requirements, and strict deadlines that all litigants must follow. In short. Miller's pro se status docs not permit him to overlook the judicial process.
VI. Conclusion
For the reasons stated above, the Court GRANTS MediCredit's Motion to Strike. (ECF No. 29.) The Court DENIES Miller's Motion to Strike. (ECF No. 19). Motion for Default (ECF No. 21). Motion to Stay. (ECF No. 23), Motion to Suspend Discovery. (ECF No. 26). Motion for Leave to File, (ECF No. 30). Motion to Compel Meet and Confer. (ECF No. 31), and Motion for Sanctions. (ECF No. 32).
Let the Clerk send this Memorandum Order to counsel of record and to Miller at his address of record.
Footnotes
District Courts must liberally construe pro se pleadings. Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) “This principle of liberal construction, however, has its limits.” Suggs v. M & T Bank, 230 F. Supp. 3d 458. 461 (E.D. Va. 2017), aff'd sub now. Suggs v. M&T Bank. 694 F. App'x 180 (4th Cir. 2017). Courts do not need to discern the unexpressed intent of the plaintiff or conjure up issues on the plaintiff's behalf. See Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006): Beaudett v. City of Hampton, 775 F.2d 1274. 1277–78 (4th Cir. 1985).
The Court does not consider in this Memorandum Order MediCredit's pending Motion for Summary Judgment. (ECF No. 36.) The Motion for Summary Judgment included the necessary notice under Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and Local Rule 7(K) for the United States District Court for the Eastern District of Virginia.
“Unless the court directs otherwise, briefs need not accompany motions for: (a) a more definite statement; (b) an extension of time to respond to pleadings, unless the time has already expired; and (c) a default judgment.” E.D. Va. Loc. Civ. R. 7(F)(2).
Federal Rule of Civil Procedure 26 governs the broad scope of discovery:
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.
Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
Miller failed to follow the Local Rules for the Eastern District of Virginia when seeking sanctions. Although Courts must liberally construe pro se pleadings, Courts do not create a special set of rules for pro se cases. All litigants must follow the Federal Rules of Civil Procedure and the applicable Local Rules. See Zaczek Fauquier Cty., Va., 764 F. Supp. 1071, 1078 (E.D. Va. 1991), aff'd, 16 F.3d 414 (4th Cir. 1993) (discussing pro se pleading standards, requirements for pro se litigants to comply with court orders). Miller's offhand request disregards how seriously a Court must weigh a motion for sanctions. First, litigants must seek sanctions on a specific basis, such as a rule violation when a party fails to respond properly to a specific discovery request. See, e.g., E. D. Va. Loc. Civ. R. 37(A). The parties must confer, and the moving party must state that good faith efforts to resolve the dispute have been made. E. D. Va. Loc. Civ. R. 37(E). The presentation of unnecessary discovery motions could subject Miller to sanctions. E. D. Va. Loc. Civ. R. 37(H).
Miller has filed at least eight other cases in the Richmond Division of the Eastern District of Virginia, including two cases over which the undersigned personally presided. See Miller v. Dish Network, LLC, No. 3:17cv432 (E.D. Va. 2017): Miller v. Diversified Adjustment Servs., Inc., No. 3:17cv313 (E.D. Va. 2017): Miller v. Credence Res. Mgmt., LLC. No. 3:16cv924 (E.D. Va. 2016): Miller v. Portfolio Recovery Assocs., LLC. No. 3:14cv865 (E.D. Va. 2014); Miller v. Equifax Info. Servs., LLC. No. 3:14cv20 (E.D. Va. 2014); Miller v. Credit Collection Sens., Inc., No. 3:10cv807 (E.D. Va. 2010); Miller v. LVNV Funding, LLC, No. 3:10cv622 (E.D. Va. 2010); Miller v. LVNV Funding. LLC. No. 3:10cv361 (E.D. Va. 2010).