Opinion
SA-23-CV-00470-FB
03-19-2024
ISAIAH J. KENNEDY, Plaintiff, v. EQUIFAX INFORMATION SERVICES LLC, EXPERIAN INFORMATION SOLUTIONS, INC., TRANS UNION, LLC, NAVY FEDERAL CREDIT UNION, CREDENCE RESOURCE MANAGEMENT, DEPARTMENT OF EDUCATION, T MOBILE, AMSHER COLLECTION SERVICES, SANTANDER CONSUMER USA, Defendants.
REPORT AND RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
ELIZABETH S. ("BETSY") CHESTNEY, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation concerns Defendants Experian, Equifax, and Trans Union's Opposed Motion for Court Order of Dismissal and Attorney's Fees [#95] and Defendants Experian, Equifax, and Trans Union's Joint Motion for Temporary Stay of Discovery [#100]. All pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C. The undersigned therefore has authority to enter this recommendation and order pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). For the reasons set forth below, it is recommended that Defendants' motion for an order of dismissal should be granted. The undersigned will also grant the joint motion for a stay of discovery while this recommendation is pending.
I. Background
Plaintiff Isaiah J. Kennedy filed this action, proceeding pro se, on April 18, 2023. Mr. Kennedy's live pleading is his Amended Complaint [#28], filed July 18, 2023. The Amended Complaint asserts causes of action under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”), the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”), and the Texas Debt Collection Act, Tex. Fin. Code § 392, et seq. (“TDCA”), against eleven Defendants: Equifax Information Services, LLC (“Equifax”); Experian Information Solutions, Inc. (“Experian”); Trans Union, LLC (“Trans Union”); Navy Federal Credit Union (“Navy Federal”); Credence Resource Management (“Credence”); Department of Education (“DOE”); Credit First National Association (“CFNA”); T-Mobile; AT&T; Amsher Collection Services (“Amsher”); and Santander Consumer USA (“Santander”).
Mr. Kennedy alleges that he was the victim of identity theft and that Defendants, who are various credit reporting agencies (Equifax, Experian, Trans Union), alleged furnishers of information (Navy Federal, Santander, T-Mobile, AT&T, DOE), and debt collectors (Credence, CFNA, and Amsher), provided false information regarding his debts and credit, failed to perform a reasonable investigation regarding the disputed debt, and improperly attempted to collect a debt Mr. Kennedy does not owe. Mr. Kennedy alleges he has suffered financial harm due to Defendants' actions and cannot move forward financially until the fraudulent debt is removed.
T-Mobile and Santander moved to compel arbitration of Mr. Kennedy's claims, and the Court granted the motion on December 13, 2023 [#82]. The Court's order directed these parties to submit their claims to a final and binding arbitration and stayed Mr. Kennedy's claims against T-Mobile and Santander pending the outcome of the arbitration. Santander and T-Mobile each filed a quarterly status report on the status of the arbitration on March 13, 2024, notifying the Court that they are unaware of any arbitration demand being filed by Mr. Kennedy per the parties' agreement and have received no communications from Plaintiff regarding arbitration [#101, #102].
Navy Federal, CFNA, and AT&T filed motions to dismiss Mr. Kennedy's claims, and the undersigned issued a report and recommendation on the motions on January 29, 2024 [#91]. The District Court adopted the recommendation on February 29, 2024, denying Navy Federal Credit Union's motion but granting CFNA's and AT&T's motions and dismissing these Defendants from the suit [#99].
Experian, Equifax, and Trans Union have now filed a motion for a Court order of dismissal based on Mr. Kennedy's repeated failure to respond to their outstanding discovery requests. These Defendants previously filed a motion to compel discovery, and the Court held a hearing on the motion, at which counsel for Defendants and Plaintiff appeared via videoconference. At the Court's hearing, Plaintiff acknowledged that he had copies of the discovery requests but believed he did not have to respond. At the hearing and in an Order following the hearing, the Court explained to Mr. Kennedy that he is required to respond to written discovery and that he cannot ignore served discovery requests without consequences to the lawsuit. The Court granted Defendants' motion to compel in part and ordered Mr. Kennedy to respond to the outstanding written discovery on or before January 30, 2024 [#89]. In the Order, the Court informed Mr. Kennedy that if he “fails to participate in discovery and continues to ignore Defendants' attempts to correspond regarding discovery, his lawsuit may be dismissed for want of prosecution or failure to comply with a Court order” pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
On January 30, 2024, Mr. Kennedy filed a motion for extension of time to respond to the discovery, explaining that he was experiencing internet disruptions that prevented him from effectively communicating with his “legal team.” As Experian, Equifax, and Trans Union did not receive any response to the outstanding discovery from Mr. Kennedy by January 30, 2024, they construed the motion for an extension of time as a request for more time to respond to the discovery and unilaterally extended the deadline to February 9, 2024, via e-mail correspondence with Mr. Kennedy. (Ex. A [#95-1], at 2.) To date, these Defendants still have not received any response to their discovery requests. They now move for an order dismissing Mr. Kennedy's claims for want of prosecution and failure to follow a court order and request an award of attorney's fees incurred defending this action.
The deadline to respond to Defendants' motion has expired. See W.D. Tex. Loc. R. CV-7(d). To date, Mr. Kennedy has not filed a response in opposition to the motion. The undersigned notes that the certified copy of the undersigned's report and recommendation was returned to the sender as refused by the addressee [#97] on February 16, 2024, several days after Defendants filed their motion. However, Mr. Kennedy has been receiving electronic notice of all Court filings in this case via the electronic case management system since May 18, 2023 [#7], and it appears he has recently updated his contact information with a new e-mail address.
Defendants have also moved for a temporary stay of discovery pending the District Court's ruling on their motion for an order of dismissal. “A trial court has broad discretion and inherent power to stay discovery until preliminary questions that may dispose of the case are determined.” Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir. 1987). A district court properly exercises this discretion to stay discovery upon a showing of good cause. Fed.R.Civ.P. 26(c).
II. Analysis
A district court may dismiss an action for failure to prosecute or to comply with any order of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.1988) (per curiam); Fed.R.Civ.P. 41(b). The record reflects that Mr. Kennedy failed to respond to served discovery requests, failed to follow an order of the Court compelling him to respond to the discovery requests, and has failed to respond to Defendants' motion for an order of dismissal. The undersigned therefore finds that dismissal of Mr. Kennedy's claims against Defendants Experian, Equifax, and Trans Union is warranted under Rule 41(b). The undersigned will therefore recommend dismissal of these claims for want of prosecution and failure to follow a court order.
Defendants also request attorney's fees pursuant to Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure as a sanction for Mr. Kennedy's failure to cooperate in discovery. This rule provides that “the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(C). Mr. Kennedy has not demonstrated that his conduct was substantially justified. However, he is a pro se party and an award of a significant amount of attorney's fees may be unjust. Defendants have not requested a specific amount of fees be awarded or presented the Court with any affidavit or other evidence demonstrating the amount of hours expended and fees incurred on this litigation. Defendants should be given an opportunity to present this evidence for the Court's consideration. The undersigned will therefore recommend the motion for fees be denied without prejudice to filing a separate motion supported by evidence.
Finally, the undersigned will grant Defendants' motion for a temporary stay pending the District Court's ruling on the motion for an order of dismissal as Defendants have demonstrated good cause for the stay.
III. Order and Recommendation
IT IS THEREFORE ORDERED that Defendants Experian, Equifax, and Trans Union's Joint Motion for Temporary Stay of Discovery [#100] is GRANTED. All discovery and case deadlines are STAYED as to Defendants Experian, Equifax, and Trans Union pending the District Court's ruling on their motion for a Court order of dismissal.
Having considered Defendants' motion and the record before the Court, the undersigned recommends that Defendants Experian, Equifax, and Trans Union's Opposed Motion for Court Order of Dismissal and Attorney's Fees [#95] be GRANTED IN PART AND DENIED IN PART as follows: Mr. Kennedy's claims against Experian, Equifax, and Trans Union should be dismissed but the request for fees should be denied without prejudice to refiling an amended fee motion with supporting evidence.
IV. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The party shall file the objections with the Clerk of Court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the un-objected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).