Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tourgeman v. Collins Financial Services

November 22, 2010

DAVID TOURGEMAN, PLAINTIFF,
v.
COLLINS FINANCIAL SERVICES, INC.; NELSON & KENNARD; DELL FINANCIAL SERVICES, L.P.; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: (1) GRANTING PLAINTIFF'S EX PARTE TOWNS'S DEPOSITION TESTIMONY AND (2) GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT (Doc. Nos. 125, 141) APPLICATION TO STRIKE ERIN

Presently before the Court is Plaintiff's motion for leave to file a third amended complaint. (Doc. No. 125; see Doc. No. 125-1 (Mem. ISO Mot. to Amend).) Also before the Court are Defendants Collins Financial Services (Collins) and Nelson & Kennard's (N&K) notice of non-opposition (Doc. No. 133), Defendant Dell Financial Services' (DFS) opposition (Doc. Nos. 135 (Opp'n to Mot. to Amend)), and Plaintiff's reply (Doc. No. 138 (Reply)). Plaintiff has also moved ex parte to strike portions of Erin Towns's deposition errata sheet, which DFS relies upon in opposition to Plaintiff's motion for leave to amend. (Doc. No. 141 (Mem. ISO Mot. to Strike).) DFS opposes Plaintiff's ex parte application. (Doc. No. 150 (Opp'n to Mot. to Strike).) Having reviewed the parties' arguments and the law, the Court GRANTS Plaintiff's ex parte application to strike and GRANTS Plaintiff's motion for leave to amend.

BACKGROUND

On July 31, 2008, Plaintiff filed a complaint against, inter alia, Collins, N&K, and DFS alleging violations of the Fair Debt Collection Practices Act (FDCPA) and California Rosenthal Act, invasion of privacy, and negligence. (Doc. No. 1 (Compl.).) On April 6, 2009, Plaintiff amended his complaint to add class allegations and a claim for violation of California Business and Professions Code § 17200 (UCL claim). (Doc. No. 34 (FAC).) Plaintiff amended his complaint again on August 27, 2009 to, inter alia, tether its UCL claim to alleged violations of the FDCPA and Rosenthal Act. (Doc. No. 60 (SAC); see also Doc. No. 58, at 11--12 (dismissing without prejudice Plaintiff's UCL claim against DFS for failure to state specific provisions of the FDCPA or Rosenthal Act that DFS allegedly violated to trigger UCL).)

More than a year later, on October 4, 2010, Plaintiff filed the present motion for leave to amend to change the proposed class definition, allege additional facts, and add defendants.*fn1 (See Mem. ISO Mot. to Amend 1; see also Doc. No. 137-1 (Proposed TAC).) Plaintiff wishes to allege newly discovered facts regarding DFS' alleged sale of nonexistent debts to Collins. (Mem. ISO Mot. to Amend 3--4; see Proposed TAC ¶¶ 20--22.) Plaintiff also wishes to join as defendants Collins Financial Services USA, Inc. (Collins USA) and Paragon Way, Inc., which Plaintiff claims are alter egos of Collins. (Mem. ISO Mot. to Amend 4--5; see Proposed TAC ¶¶ 7--8.) Finally, Plaintiff wishes to amend its class allegations to incorporate newly discovered facts. (See Proposed TAC ¶¶ 35--53.)

DISCUSSION

1. Motion to Strike Portions of Erin Towns's Errata Sheet

Plaintiff's motion for leave to amend depends, at least in part, on Ms. Towns's deposition errata sheet. (See Opp'n to Mot. to Amend 5--6, 13.) Accordingly, the Court first addresses Plaintiff's motion to strike portions of that errata sheet.

On September 8, 2010, Plaintiff deposed Ms. Towns, DFS' "senior recovery manager," in Austin, Texas. (Mem. ISO Mot. to Strike 1; see Doc. No. 147-1 (Towns Dep.).)*fn2 During the deposition, Ms. Towns testified that loans DFS sold to Collins consisted entirely of loans originated by CIT Online Bank (CIT). (E.g., Towns Dep. 56:21--57:2; 84:19--23.) On October 3, 2010-the day before Plaintiff moved to amend his complaint-Ms. Towns submitted an errata sheet purporting to correct the original deposition transcript. (Doc. No. 147-2 (Errata Sheet).) The changes range from corrections of transcription errors to outright contradictions. (See id.) Relevant here, Ms. Towns changed her testimony to say that CIT, DFS, and American Investment Bank originated the loans DFS sold to Collins, rather than just CIT. (Compare, e.g., Towns Dep. 56:19--21 ("[Question:] To your knowledge, were any debts besides those originated by CIT included in this portfolio? [Answer:] My understanding, they were CIT loans."), with Errata Sheet 1 ([Page/Line:] 56:21 [Change & Reason:] "To my understanding it consisted of AIB, CIT[,] and DFS loans.").)

Federal Rule of Civil Procedure 30(e) allows changes to deposition testimony "in form or substance" if made within thirty days of being notified that the transcript is available and accompanied by a statement of the reasons for making them.*fn3 Although the Rule, by its terms, allows changes "in form or substance," Fed. R. Civ. P. 30(e)(1)(B), Ninth Circuit authority limits the Rule's application to "corrective, and not contradictory, changes," Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1226 (9th Cir. 2005). "The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. . . . A deposition is not a take home examination." Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n.5 (10th Cir. 2002) (quoting Greenway v. Int'l Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992)); accord Bartos v. Pennsylvania, 2010 WL 1657284, at *5--6 (M.D. Pa. Apr. 23, 2010); Citgo Petroleum Corp. v. Ranger Enters., Inc., 632 F. Supp. 2d 878, 883--84 (W.D. Wis. 2009); Wyeth v. Lupin Ltd., 252 F.R.D. 295, 296--97 (D. Md. 2008); Donald M. Durkin Contracting, Inc. v. City of Newark, 2006 WL 2724882, at *5 (D. Del. Sept. 22, 2006); Adams v. Allied Sec. Holdings, 236 F.R.D. 651, 652 (C.D. Cal. 2006).

Further, Rule 30(e) requires that any changes to deposition testimony be accompanied by a statement of reasons explaining the changes. Fed. R. Civ. P. 30(e)(1)(B); accord Hambleton Bros., 397 F.3d at 1224. Courts insist on strict compliance with Rule 30(e)'s technical requirements, including the requirement of a statement of reasons. Hambleton Bros., 397 F.3d at 1224--26; Bartos, 2010 WL 1657284, at *5 (collecting cases); Brokaw v. Qualcomm, Inc., 2003 U.S. Dist. LEXIS 26519, at *26 (S.D. Cal. Mar. 4, 2003); Holland v. Cedar Creek Mining, 198 F.R.D. 651, 653 (S.D. W. Va. 2001). Without a statement of reasons, a reviewing court cannot determine "whether the alterations have a legitimate purpose." Hambleton Bros., 397 F.3d at 1224--25.

Having analyzed Ms. Towns's proposed changes, it is apparent that her errata sheet runs afoul of Rule 30(e)'s procedural and substantive requirements. First, as a procedural matter, the errata sheet is not accompanied by a statement of reasons explaining the changes.*fn4 This alone justifies striking the errata sheet.*fn5 See, e.g., Hambleton Bros., 397 F.3d at 1224--26. Second and more troubling is the substance of Ms. Towns's changes. Although some of the changes merely correct typographical errors (see Errata Sheet 1), others directly contradict Ms. Towns's sworn deposition testimony (see Mem. ISO Mot. to Strike 2--3 (summarizing contradictory changes)). Changing "yes" to "no" and "correct" to "no not correct" are paradigmatic examples contradiction, rather than correction. Hambleton Bros., 397 F.3d at 1226. Contradiction is not a proper use of an errata sheet.

DFS' arguments in opposition to Plaintiff's motion to strike are thoroughly unavailing. First, DFS contends that the Court may strike an errata sheet under Hambleton Brothers only if the deponent attempts to use the errata sheet to manufacture a genuine issue of material fact to defeat summary judgment. (Opp'n to Mot. to Strike 3.) Thus, DFS contends, the Court should not strike Ms. Towns's errata sheet because "[n]o dispositive motion is presently on file." (Id.) The Court, however, does not read Hambleton Brothers so narrowly. Courts strike errata sheets in contexts beyond summary judgment. See, e.g., Bartos, 2010 WL 1657284, at *8 (striking errata sheets for all purposes); Wyeth, 252 F.R.D. at 295 (precluding use of errata sheet at trial). The Court sees DFS' reliance on Ms. Towns's errata sheet in opposition to Plaintiff's motion for leave to amend as analogous to the use of a contradictory errata sheet to create a factual dispute to defeat summary judgment. (See Opp'n to Mot. to Amend 5 (arguing that "the facts refute" that CIT originated all of the loans DFS sold to Collins and citing Ms. Towns's errata sheet); id. at 13 (arguing that "[t]he accounts sold to Collins included accounts from CIT, AIB, and DFS" and citing Ms. Towns's errata sheet).) Accordingly, the Court agrees with Plaintiff that Hambleton Brothers controls.

Second, DFS contends that the Court should not strike Ms. Towns's errata sheet because witness and documentary evidence corroborates Ms. Towns's changes to her deposition testimony. (Opp'n to Mot. to Strike 4--5.) Whether or not DFS is correct, this argument misses the point. DFS chose Ms. Towns as its Rule 30(b)(6) designee and should have prepared her accordingly. (See id. at 2 (noting that DFS designated Ms. Towns to speak to DFS' business relationship with Collins, CIT, and AIB).) DFS produced documents during Ms. Towns's deposition-documents that DFS contends corroborate Ms. Towns's errata sheet changes-that Ms. Towns should have reviewed. (Id. at 5; Doc. No. 150-1 (Ammerman Decl. in Opp'n to Mot. to Strike) Ex. B.) DFS had an opportunity to cross examine Ms. Towns to clear up ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.