Gibbons v. Data Search, Inc.

Western District of Texas, txwd-5:2019-cv-00107

ADVISORY TO THE COURT by Michael J. Gibbons.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION Michael J. Gibbons § § § Civil Action No.: § 5:19-cv-107-FB § V § § § § Data Search, Inc. § § § Fed. R. Civ. P. 26(f) Report ______________________________________ Pursuant to the Court's June 21, 2019 order the parties submit this Joint Discovery/Case Management Plan. 1. What is the basis for subject -matter jurisdiction? Are there any outstanding jurisdictional issues? For cases premised on diversity jurisdiction, provide the citizenship of each party and explain whether or not the parties agree that the amount in controversy exceeds $75,000. For removal cases, explain whether the parties agree that the amount in controversy exceeded $75,000 at the time of removal. If there is any disagreement on these issues, each party should state its respective position. The Court has subject matter jurisdiction of this action under the FDCPA, 15 U.S.C. § 1695k(d), and becau se it presents the Court with a federal question it also has jurisdiction under 28 U.S.C. § 1331. 2. Are there any unserved parties? If more than 90 days have passed since the filing of the Complaint or Petition, should any unserved parties be dismissed? There are no unserved parties. 3. What are the causes of action, defenses, and counterclaims in this case? What are the elements of the cause(s) of action, defenses, and counterclaims pled? The sole cause of action is a violation of the Fair Debt Collection Practices Act. The elements o f the FDCPA are: 1. Plaintiff is a consumer, 15 U.S.C. § 1692a(3); 2. The debt in question is a consumer debt, 15 U.S.C. § 1692 a(5); 3. The defendant is a debt collector, 15 U.S.C. § 1692a(6); 4. The defendant made a communication, 15 U.S.C. § 1692 a(2); 5. That communication made false or misleading representations 15 U.S.C. §§ 1692e(2)(a), e(8), and e(10). Defendant denies that it violated any law. 4. Are there any agreements or stipulations that can be made about any facts in this case or any element in the cause(s) o f action? Defendant admits that it is a debt collector as defined by 15 U.S.C. § 1692a(6). 5. State the parties' views and proposals on all items identified in Fed. R. Civ. P. 26(f)(3). A) No changes are required. B) Any agreements between the part ies, the original creditor, any predecessors in interest to the debt. C) There are no issues as to ESI. D) The parties to not anticipate issues regarding claims of privilege or of protection. E) No changes to the limitations on discovery imposed under the Fed. R. Civ. P. are required. F) The parties do no see the need for any orders under Rule 26(c) or Rule 16(b) and (c). 6. What, if any, discovery has been completed? What discovery remains to be done? Have the parties considered conducting discovery i n phases? None. All discovery remains to be done. The parties do not believe that phased discovery will serve the needs of the case. 7. What, if any, discovery disputes exist or are anticipated? None. 8. Have the parties discussed the desirability of filing a proposed order pursuant to Federal Rule of Evidence 502? They have not. 9. Have the parties discussed mediation? Is this a case that could be mediated early and effectively with limited discovery ? If so, what discovery is essential to any early mediation and how could it be structured to streamline an early mediation? Yes, the parties have discussed mediation. Plaintiff believes that an early mediation would benefit the parties. One round of writt en discovery would allow the parties to effectively mediate the case. Defendant agrees that mediation would be beneficial but seeks Plaintiff's deposition before mediation occurs. Signed July 16, 2019 Respectfully Submitted, /s/William M. Clanton William M. Clanton Texas Bar No. 24049436 Law Office of Bill Clanton, P.C. 926 Chulie Dr. San Antonio, Texas 78216 210 226 0800 210 338 8660 fax bill@clantonlawoffice.com By: /s/ A. Lee Rigby A. Lee Rigby State Bar No. 24029796 David C. Lawrence State Bar No. 24041304 RIGBY SLACK LAWRENCE BERGER + COMERFORD, PLLC 6836 Austin Center Blvd, Suite 100 Northpoint Center, Building 1 Austin, Texas 78731 Telephone: (512) 782-2060 lrigby@rigbyslack.com dlawrence@rigbyslack.com ATTORNEYS FOR DEFENDANT