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Piontek v. Creditors Specialty Service

September 27, 2010

DENNETTE PIONTEK AND WALTER LOVEJOY, PLAINTIFFS,
v.
CREDITORS SPECIALTY SERVICE, INC., DEFENDANT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

PLAINTIFF'S MOTION FOR FINDING MEMORANDUM DECISION REGARDING OF LIABILITY (Doc. 13)

I. INTRODUCTION

Plaintiffs Dennette Piontek and Walter Lovejoy ("Plaintiffs") proceed with an action pursuant to 15 U.S.C. § 1692 against Defendant Creditors Specialty Service, Inc., ("Defendant"). (Doc. 1).

Plaintiffs filed a motion for finding of liability against Defendant on June 25, 2010. (Doc. 13). Defendants filed opposition to Plaintiffs' motion on August 31, 2010. (Doc. 14). On September 1, 2010, Defendant filed a motion to vacate admissions. (Doc. 16).

II. FACTUAL HISTORY

The complaint alleges numerous violations of the Fair Debt Collection Practices Act ("FDCPA") arising out of communications between Plaintiffs and Defendant in August, 2009. According to the complaint, Defendant threatened to garnish Dennette Piontek's wages if she did not resolve an outstanding debt. The complaint alleges that at the time Defendant threatened to garnish Piontek's wages, Defendant had niether the intent nor ability to garnish Plaintiff's wages.

On April 20, 2010, Plaintiffs served Defendant with requests fo admissions pursuant to Federal Rule of Civil Procedure 36. Defendant failed to timely respond to Plaintiff's requests for admission and failed to request an extension of time. Plaintiff filed the instant motion on June 25, 2010. Defendant failed to timely respond to Plaintiff's motion.

III. DISCUSSION

A. Plaintiff's Motion for Finding of Liability

The Federal Rules of Civil Procedure do not provide for a "motion for finding of liability." To the extent Plaintiffs are seeking summary adjudication on the issue of Defendant's liability, Plaintiffs' motion fails to comply with the requirements of Federal Rule of Civil Procedure 56. See Fed. R. Civ. P. 56. To the extent Plaintiffs are seeking a terminating sanction pursuant to Federal Rule of Civil Procedure 37, such an extreme sanction would not be just under the circumstances. See Fed. R. Civ. P. 37(b)(2) (the court...may issue further just orders) (emphasis added).

Terminating sanctions are justified only where the party's noncompliance with discovery rules "was due to willfulness, fault, or bad faith." E.g. Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004). The Ninth Circuit has established a five-part test to determine whether a case-dispositive sanction under Rule 37(b)(2) is just:

(1) the public's interest in expeditious resolution of litigation;

(2) the court's need to manage its dockets;

(3) the risk of prejudice to the party ...


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