Holland v. Pinnacle Services, Inc., No. 3:2023cv00071 - Document 32 (D. Nev. 2023)

Court Description: ORDER granting 31 Motion to Extend Discovery and Related Deadlines. Discovery due by 12/19/2023. Motions due by 1/18/2024. Proposed Joint Pretrial Order due by 2/19/2024. Signed by Magistrate Judge Carla Baldwin on 9/19/2023. (Copies have been distributed pursuant to the NEF - CT) Modified on 9/19/2023 to correct deadlines. ( NEF - regenerated - CT).

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Holland v. Pinnacle Services, Inc. Doc. 32 Case 3:23-cv-00071-MMD-CLB Document 32 Filed 09/19/23 Page 1 of 14 1 2 3 4 5 6 7 8 9 Craig B. Friedberg, Esq. LAW OFFICES OF CRAIG B. FRIEDBERG, ESQ. Nevada Bar No. 004606 4760 South Pecos Road, Suite 103 Las Vegas, Nevada 89121 (702) 435-7968 – telephone attcbf@cox.net James J. Parr, Esq. AGRUSS LAW FIRM, LLC Illinois Bar No.: 6317921 1301 W. 22nd St, Suite 711 Oak Brook, IL 60523 (312) 224-4695 – telephone (312) 253-4451 – facsimile james@agrusslawfirm.com Attorneys for Plaintiff, DESIREE HOLLAND 10 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 11 12 13 14 15 16 17 18 19 DESIREE HOLLAND, ) ) Plaintiff, ) Case No.: 3:23-cv-00071-MMD-CLB ) v. ) ORDER GRANTING PLAINTIFF’S ) FIRST MOTION TO EXTEND ) DISCOVERY AND RELATED PINNACLE SERVICES INC., doing business ) DEADLINES as, Summit Collection Services, ) ) Defendant. ) ) 20 NOW COMES the Plaintiff, DESIREE HOLLAND (“Plaintiff”), by and through her 21 attorneys, and pursuant to Local Rules LR IA 6-1(a) and LR 26-3, respectfully requests that this 22 Honorable Court extend the discovery close deadline to December 19, 2023, the dispositive 23 motion deadline to January 18, 2024, and the joint pretrial order deadline to February 19, 2024. 24 In support thereof, Plaintiff states as follows: 25 -1Dockets.Justia.com Case 3:23-cv-00071-MMD-CLB Document 32 Filed 09/19/23 Page 2 of 14 1 2 3 4 This is the first motion by Plaintiff, or any other party, to extend the discovery close deadline, and related deadlines. MEMORANDUM OF POINTS AND AUTHORITIES I. PROCEDURAL POSTURE 5 On February 28, 2023, Plaintiff filed a two-count Complaint against Defendant, 6 PINNACLE SERVICES INC., doing business as, Summit Collection Services (“Pinnacle”) based 7 on the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”), and the Nevada 8 Deceptive Trade Practices Act, NRS 598, et seq. and NRS 41.600 (“NDTPA”). (Doc. No. 1). In 9 10 11 12 13 14 15 her Complaint, Plaintiff alleged that Pinnacle violated the FDCPA and NDTPA in connection with its attempts to collect a consumer debt from Plaintiff. (Id.) On June 23, 2023, Plaintiff filed a Motion for Leave to File First Amended Complaint to add BRIAN C. CHEW (“Chew”) as a party defendant and to add additional allegations of Pinnacle and Chew’s wrongdoing that occurred after Plaintiff’s original complaint was filed. (Doc. No. 21). On July 25, 2023, the Court (Judge Baldwin) entered its Report and Recommendation of U.S. 16 Magistrate Judge, recommending that Plaintiff’s Motion for Leave to File First Amended 17 Complaint be denied in part and granted in part. (Doc. No. 24). On August 8, 2023, Plaintiff filed 18 Objections to U.S. Magistrate Judge’s Report and Recommendation, seeking that Plaintiff’s 19 Motion for Leave to File First Amended Complaint be granted in full. (Doc. No. 26). On 20 September 1, 2023, the Court (Judge Du) entered its Order overruling Plaintiff’s Objections to the 21 22 23 24 25 U.S. Magistrate Judge’s Report and Recommendation and adopting U.S. Magistrate Judge’s Report in full. (Doc. No. 27). The Court’s September 1, 2023 Order granted Plaintiff leave to file her First Amended Complaint, subject to the restrictions contained in the Order, within fourteen days thereafter. (Id.) On September 11, 2023, Plaintiff filed her First Amended Complaint. (Doc. -2- Case 3:23-cv-00071-MMD-CLB Document 32 Filed 09/19/23 Page 3 of 14 1 2 3 No. 28). And on September 13, 2023, the Clerk of Court issued a Summons for newly added defendant, Chew. (Doc. No. 30). II. STATEMENT SPECIFYING DISCOVERY COMPLETED 4 On May 1, 2023, the Court entered its Order Granting Stipulated Discovery Plan and 5 Scheduling Order & Joint Case Management Report. (Doc. No. 17). The current deadline of the 6 completion of discovery is September 19, 2023. (Id.) 7 Plaintiff and Pinnacle have exchanged written discovery. To date, Pinnacle has not sought 8 to depose Plaintiff. Plaintiff deposed Pinnacle’s 30(b)(6) witness (Chew) on September 12, 2023. 9 10 11 12 13 14 15 Plaintiff issued a subpoena to obtain copies of her relevant telephone records. After receiving copies of her telephone records from her telephone service provider, Plaintiff learned that the telephone records do not include missed calls. For context, even missed calls from a debt collector are considered to be “conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt” pursuant to § 1692d § 1692d(5) of the FDCPA. Fleming v. Associated Credit Servs., Inc., 342 F. Supp. 3d 563, 579 (D.N.J. 2018) (“[b]y its plain 16 terms, this subsection of the statute reaches both answered and unanswered calls”); Bassett v. I.C. 17 Sys., Inc., 715 F. Supp. 2d 803, 810 (N.D. Ill. 2010) (holding that missed calls are actionable under 18 the FDCPA). 19 20 21 III. SPECIFIC DESCRIPTION OF THE DISCOVERY THAT REMAINS TO BE COMPLETED a. Telephone Records 22 At the deposition of Pinnacle’s 30(b)(6) witness, on September 12, 2023, Plaintiff, by her 23 counsel, learned that Pinnacle does not necessarily document all collection calls made to 24 consumers, including Plaintiff, because any such calls must be manually notated by Pinnacle’s 25 collectors. This is of particular import because, for example, Plaintiff has alleged the placement -3- Case 3:23-cv-00071-MMD-CLB Document 32 Filed 09/19/23 Page 4 of 14 1 2 of a collection call to her by Pinnacle on a particular date, and has a screenshot documenting it, yet that particular call does not appear on the “Debtor History Report” produced by Pinnacle. 3 Accordingly, Pinnacle has denied ever placing that call, but has no explanation for the screenshot 4 Plaintiff has documenting it. 5 As Plaintiff’s telephone records do not document missed calls Plaintiff alleges that she 6 received from Pinnacle, and Pinnacle’s documentation of collection calls depends on Pinnacle’s 7 collectors manually documenting such calls, it appears that the only reliable source of 8 documentation would be from Pinnacle’s telephone service provider. Moreover, during the 9 10 11 12 13 14 15 deposition on Pinnacle’s 30(b)(6) witness on September 12, 2023, the witness denied that Pinnacle ever received the communications that Plaintiff’s counsel is alleged to have sent to Pinnacle, via facsimile. Pinnacle’s telephone records also appear to be the best source of resolving this dispute, as well. Furthermore, during the deposition on Pinnacle’s 30(b)(6) witness on September 12, 2023, Plaintiff learned the identify of Pinnacle’s telephone service provider, Spectrum, and is issuing a 16 subpoena to Spectrum contemporaneously with this motion, to obtain the relevant telephone 17 records. 18 b. Deposition of Pinnacle’s Collectors 19 During the deposition on Pinnacle’s 30(b)(6) witness on September 12, 2023, Plaintiff also 20 learned the identity of Pinnacle’s collector, who would have placed the above-referenced call to 21 22 Plaintiff. Plaintiff seeks to take the deposition of the collector to inquire about the collection calls placed to Plaintiff, their practices as to documenting collection calls, and the like. 23 24 25 -4- Case 3:23-cv-00071-MMD-CLB Document 32 Filed 09/19/23 Page 5 of 14 c. Additional Written and Oral Discovery Regarding New Allegations Contained in Plaintiff’s First Amended Complaint 1 2 3 4 5 6 7 8 9 Plaintiff’s First Amended Complaint contains additional allegations of misconduct by Pinnacle and Chew, which occurred after Plaintiff’s original complaint was filed. Namely, in the context of litigation in a small claims case in Nevada state court that Pinnacle filed against Plaintiff. 1 As of the date of this motion, Plaintiff has a pending motion to vacate the default judgment in the State Court Case. And it is Plaintiff’s understanding that Pinnacle is opposing Plaintiff’s motion, based on an Interim Order that she received from the court in the State Court Case. (A copy is attached hereto as Exhibit A). 10 Plaintiff does not know what responsive pleadings that Pinnacle and Chew will be filing 11 as to Plaintiff’s First Amended Complaint, because they are not yet due, however, Plaintiff 12 anticipates that Pinnacle and Chew will be denying/opposing Plaintiff’s claims and will also plead 13 defenses. Plaintiff seeks to conduct whatever written and oral discovery is appropriate in the 14 context of Pinnacle and Chew’s anticipated forthcoming responses and defenses to her First 15 Amended Complaint. 16 IV. 17 18 Plaintiff was not dilatory in deposing Pinnacle’s 30(b)(6) witness. Plaintiff’s counsel first 19 20 21 THE REASONS WHY THE REMAINING DISCOVERY WAS NOT COMPLETED WITHIN THE TIME LIMIT OF THE EXISTING DISCOVERY DEADLINE issued a deposition notice for Pinnacle’s 30(b)(6) witness on June 14, 2023, for the deposition to take place on July 20, 2023. Plaintiff’s 30(b)(6) deposition notice invited Pinnacle to inform 22 Plaintiff if the scheduled date and time were not convenient. On or about June 16, 2023, Pinnacle’s 23 counsel informed Plaintiff’s counsel that Pinnacle’s counsel would be unavailable between July 24 25 1 Reno Township Small Claims Court, Washoe County, Nevada, case no. RSC2022-000485 (“State Court Case”). -5- Case 3:23-cv-00071-MMD-CLB Document 32 Filed 09/19/23 Page 6 of 14 1 2 16, 2023 through July 31, 2023 because of a planned trip. By June 29, 2023, Plaintiff and Pinnacle’s counsel agreed on August 15, 2023 at 11:00 a.m. PT, as the rescheduled date and time 3 for the deposition of Pinnacle’s 30(b)(6) witness, and Plaintiff’s counsel issued an amended 4 deposition notice accordingly. On August 8, 2023, Pinnacle’s counsel informed Plaintiff’s counsel 5 that he had the time for the 30(b)(6) deposition entered into his calendar as starting at 9:00 a.m. 6 PT rather than 11:00 a.m. PT. Pinnacle’s counsel requested moving the deposition to 9:00 a.m. 7 PT, or alternatively, to reschedule the deposition to August 16, 17, or 18. The alternative dates 8 suggested by Pinnacle’s counsel did not work for Plaintiff’s counsel. By August 14, 2023, Plaintiff 9 10 11 12 13 14 15 16 and Pinnacle’s counsel agreed on August 23, 2023 at 9:00 a.m. PT, as the rescheduled date and time for the deposition of Pinnacle’s 30(b)(6) witness, and Plaintiff’s counsel issued an amended deposition notice accordingly. On August 23, 2023, Plaintiff’s counsel was ill and unable to proceed with the scheduled 30(b)(6) deposition and notified Pinnacle’s counsel. By August 30, 2023, Plaintiff and Pinnacle’s counsel agreed on September 12, 2023 at 11:00 a.m. PT, as the rescheduled date and time for the deposition of Pinnacle’s 30(b)(6) witness, and Plaintiff’s counsel issued an amended deposition notice accordingly. 17 As mentioned above, the deposition of Pinnacle’s 30(b)(6) witness was taken on September 18 12, 2023, just one week prior to the current discovery deadline of September 19, 2023. It was only 19 on September 12, 2023, when Plaintiff learned of Pinnacle’s recordkeeping practices, its telephone 20 service provider, and the individual that would have placed collection calls to Plaintiff around the 21 22 23 24 25 timeframe alleged. Moreover, given the situation that Plaintiff was only granted leave to file her First Amended Complaint on September 1, 2023, her First Amended Complaint was not filed until September 11, 2023, and Pinnacle and Chew’s responsive pleadings and defenses are presently -6- Case 3:23-cv-00071-MMD-CLB Document 32 Filed 09/19/23 Page 7 of 14 1 2 unknown, it would have been impossible for Plaintiff to have conducted any such discovery relative thereto by September 19, 2023. 3 Although Plaintiff is filing her motion within 21 days of the current discovery close 4 deadline of September 19, 2023, Plaintiff asserts that the foregoing demonstrates that her failure 5 to file her motion sooner was the result of excusable neglect pursuant to Local Rule LR 26-3. 6 V. 7 PROPOSED SCHEDULE FOR COMPLETING DISCOVERY AND RELATED DEADLINES ALL REMAINING Plaintiff proposes that the current discovery close deadline be extended from September 8 9 19, 2023 to December 19, 2023. Plaintiff further proposes that the dispositive motion deadline 10 and joint pretrial order deadlines be likewise extended proportionally to January 18, 2024 and 11 February 19, 2024 respectively. 12 Plaintiff’s counsel conferred with Pinnacle’s counsel and Pinnacle has indicated that it has 13 no objection to the proposed extended deadlines. However, counsel did not discuss what discovery 14 Pinnacle and/or Chew may want to conduct yet. 15 16 17 18 19 VI. CONCLUSION WHEREFORE, for all of the foregoing reasons, Plaintiff, DESIREE HOLLAND, asserts that she has made a showing of good cause, and respectfully requests that this Honorable Court enter an Order extending the discovery close deadline to December 19, 2023, the dispositive 20 21 22 23 24 25 -7- Case 3:23-cv-00071-MMD-CLB Document 32 Filed 09/19/23 Page 8 of 14 1 2 motion deadline to January 18, 2024, and the joint pretrial order deadline to February 19, 2024. DATED: September 18, 2023 Respectfully submitted, AGRUSS LAW FIRM, LLC 3 4 By: /s/ James J. Parr James J. Parr Admitted Pro Hac Vice -andCraig B. Friedberg LAW OFFICES OF CRAIG B. FRIEDBERG, ESQ. Attorneys for Plaintiff, HOLLAND 5 6 7 8 9 DESIREE 10 11 12 13 IT IS SO ORDERED. 14 Dated: September __________________. 18, 2023 15 16 17 _______________________________________ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 -8- Case 3:23-cv-00071-MMD-CLB Document 32 Filed 09/19/23 Page 9 of 14 CERTIFICATE OF SERVICE 1 2 I certify that on September 18, 2023, a true and correct copy of the foregoing document 3 was electronically filed with the Court’s CM/ECF system to be sent via the electronic notification 4 system to all counsel of record. 5 6 By: /s/ James J. Parr James J. Parr 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -9- Case 3:23-cv-00071-MMD-CLB Document 32 Filed 09/19/23 Page 10 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT A El ectroni cal l yFi l ed Submi tted 9/14/2023 3:33 PM CLERK OF THE COURT Reno Ci vi l Accepted: 9/14/2023 3:34 PM Case 3:23-cv-00071-MMD-CLB Document 32 Filed 09/19/23 Page 11 of 14 1 2 -) 4 5 6 IN THE JUSTICE COURT OF RENO TOWNSHIP 7 IN AND FOR THE COUNTY OF WASHOE, STATE OF NEVADA 8 9 SUMMIT COLLECTION SERVICES. 10 il 12 Plaintiff, vs Case DESIREE MICHELLE SANTIAGO 13 HOLLAND, Dept. No. RSC2022-000485 No.6 Dcfcndant. t4 INTERIM ORDER l5 16 t7 The procedural history ofthis case is as follows: l. Santiago Holland ("Defendant"). l9 2. 3. 4. a Motionfor Publication becatse it was unable to serve On August 11,2022, the Court approved by order Plaintifls request to serve the Defendant On April 17, 2023, the Plaintiff frled a Hearing Statemenl and an Amended Hearing St atement 25 26 Plaintifffiled by publication. 23 24 On August 2, 2022, the the Defendant. 2t 22 ("Plaintiff') filed its small claims Complaint seeking to collect an outstanding debt from the Defendant Desiree Michelle 18 20 On May 16,2022, the Plaintiff Summit Collection Services 5. On wilh exhibits. April 20,2023, mediation was held, and the Defendant failed to appear. -t- Case Number: RSC2022-000485 Case 3:23-cv-00071-MMD-CLB Document 32 Filed 09/19/23 Page 12 of 14 1 6. On April 24,2023, because the Defendant failed to appear, the Court isswd a Default Judgment. 2 Enty of Judgmezt ) 7. On May 10, 2023, Notice of 4 8. On July 21, 2023, the Plaintiff filed a Motion for Order to Show Cause against gamishee; however, that Motion was withdrawn by the Plaintiff on September 8, 2023. 5 6 was filed by the Plaintiff. On July 28, 2023, the Defendant filed a Motion to Set Aside Default Judgment. [n said 9. 7 Motion,the attomey representing the Defendant in Federal District Court over violations of 8 the Fair Debt Collections Practices Act submitted an 9 attomey Craig B. Friedberg, Esq. did not have the authority to accept service on behalfofthe 10 Defendant, and, therefore, the reliance on effecting service through the attomey to obtain a 11 default ofthe Defendant was improper, and the Default Judgment should be set aside. t2 Afidovit and document stating that the 10. On September 11,2023, the Plaintiff filed a Hearing Statemerl, which was 7l pages long. 13 The Hearing Statemenl was not accepted by the clerk until I l:00 a.m. on September 13, t4 2023, and was provided to the Court the same day, which is less than 24 hours before the 15 hearing. The hearing was scheduled for September 14,2023, for the purpose of determining 16 the outstanding issues, and those issues the parties wanted the Court to resolve prior to tt rendering a decision. The September 14,2023, hearing was simply a Status Hearing. 18 I l. The Court has had an opportunity to briefly review the Hearing Statemenr; however, given 19 the length ofthe Hearing Statement and the fact that the exhibits were missing pages and/or 20 not properly sequenced, the Court continued the hearing giving the Defendant an opportunity 21 to respond. The Plaintiffmust re-submit the Hearing Statement with the exhibits, including 22 all pages, and correct any deficiencies in the Hearing Statement. Thereafter, the Court will 23 set a subsequent Status Hearing. 24 Therefore, good cause appearing herein, IT lS HEREBY ORDERED that the hearing on will have thirty (30) days to respond to the Plaintifls 25 September 14,2023, is continued. The Defendant 26 Hearing Statement as soon as that Hearing Statement is submitted with all the exhibits completed and -2- Case 3:23-cv-00071-MMD-CLB Document 32 Filed 09/19/23 Page 13 of 14 I properly sequenced, and, thereafter, once the Court receives the Defendant's Response to Plaintiffs 2 Hearing Statement, this matter will be reset for a Status Hearing. J 4 DATED tr,i, l{ day of Septe mber2o23 5 6 7 8 9 l0 11 t2 l3 t4 15 l6 17 l8 l9 20 21 22 23 24 25 26 -3- Case 3:23-cv-00071-MMD-CLB Document 32 Filed 09/19/23 Page 14 of 14 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below: Wendy Pearson on behalf of Court Filer Bar No. 0 wpearson@washoecounty.gov Envelope ID: 12480993 Status as of 9/14/2023 3:35 PM PST Associated Case Party: Summit Collection Services Name BarNumber Summit Collection Services Email TimestampSubmitted Status legal@summitcollectionservices.net 9/14/2023 3:33:04 PM NOT SENT Associated Case Party: Vantage Real Estate LLC Name BarNumber Email TimestampSubmitted Status Patrick R.Millsap, Esq. mcclure@wallacemillsap.com 9/14/2023 3:33:04 PM NOT SENT Patrick R. Millsap, Esq. patrick@wallacemillsap.com NOT SENT 9/14/2023 3:33:04 PM Associated Case Party: DesireeMichelle SantiagoHolland Name Desiree MichelleSantiago Holland BarNumber Email TimestampSubmitted desiholland@gmail.com 9/14/2023 3:33:04 PM Status NOT SENT

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