Phillip Garza v. Portfolio Recovery Associates, LLC

Western District of Texas, txwd-5:2019-cv-00134

ADVISORY TO THE COURT by Phillip Garza.

Interested in this case?

Current View

Full Text

IN THE UNITED STATES DISTR ICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVIS ION Phillip Garza § § Plaintiff § Civil Action No.: § 5:19-cv-0134-XR § v § § § § Portfolio Recovery Associates, § § LLC § Defendant Joint Fed. R. Civ. P. 26 Report ____________________ 1. Are there any outstanding jurisdictional issues? None. 2. Are there any unserved parties? None. 3. What are the causes of action, defenses, and counterclaims in this case? What are the elements of the causes of action, defenses and counterclaims plead? Plaintiff has plead three causes of action: a. Telephone Consumer Protection Act; i. Any person who; ii. Places a call; iii. To a cellular phone; a. Without prior express consent; or b. After the revocation of consent; and iv. Using: a. An automatic telephone dialing system; or b. Answers the phone using a pre -recoded voice. Defenses: Portfolio Recovery Associates, LLC ("PRA") asserts that it is not liable for Plaintiff's claim under the TCPA. More specificall y, PRA asserts that: 1) it did not make any calls to Plaintiff using an automatic dialing system, 2) that Plaintiff had prior express consent to make calls to Plaintiff, and that PRA does not use pre-recorded voices. b. Fair Debt Collection Practices Act; and i. Plaintiff is a consumer; ii. The debt in question is a consumer debt; iii. The Defendant is a debt collector; and iv. The Defendant violated the FDCPA in any of a number of ways. Plaintiff alleges that Defendant violated the FDCPA by continuousl y and repeatedl y calling him in violation of 15 U.S.C. § 1692d(5). Defenses: PRA denies that it committed any violation of the FDCPA as alleged in Plaintiff's Complaint. Specificall y, PRA asserts that unlike many sections of the FDCPA that are strict liabilit y provisions, § 1692d(5) contains an "intent" requirement. See 15 U.S.C. § 1692d(5); Tyler v. Mirand Response S ys., Inc.; Civil Action No. H -18-1095 (S.D. Tex. May. 15, 2019); Clark v. Cap. Credit & Collection Servs., Inc., 460 F.3d 1162, 1176 n.11 (9th Cir. 2006). c. Invasion of Privacy i. Defendant intentionall y intruded on Plaintiff's solitude and seclusion; ii. The intrusion would be highl y offensive to the reasonable person; and iii. The Plaintiff suffered an injury as a result of the Defendant's intrusion. Defenses: For the reasons stated above, PRA denies that it has committed a violation of the Invasion of Privacy tort. 4. Are there any agreements or stipulations that can be made ab out the facts in this case or any elements in the causes of action? Not at this time. 5. State the parties views and proposals on all items identified in Fed. R. Civ. P. 26(f)(3). A) The parties do not anticipate any changes in the timing, form, or requirements for initial disclosures. B) Plaintiff anticipates discovery will be needed to prove the elements of his case. PRA anticipates discovery will be needed regarding the knowledge of Plaintiff's claims and damages. Both parties believe that the proposed scheduling order provides adequate time to conduct discovery. Neither part y sees the need to conduct discovery in phases. C) The parties not anticipate the need for a separate protocol to govern the disclosure or discovery of ES I. Both parties agree to produce written discovery in PDF format. D) The parties agree that the protective order available from the Western District of Texas' website will be used should either part y require it. E) The parties do not anticipate any changes from the limitations on discovery imposed under the Federal Rules of Civil Procedure or by the Local Rules of this Court. F) None. 6. What if any discovery has been completed? What discovery remains to be done? Have the parties considered conducting discovery in phases? Discovery has not yet commenced. The parties do not see the need to conduct discovery in phases. 7. What, if any, discovery disputes exist? None at this time. 8. Have the parties discussed the desirability of filing a proposed order pursuant to Federal Rule of Evidence 502? Not at this time. 9. Have the parties discussed mediation? While mediation has not been formall y discuss ed, Plaintiff is in favor of meditation. PRA is unsure as to whether mediation will be beneficial at this stage given that PRA has already served a Rule 68 Offer of Judgment on Plaintiff. Dated: June 3, 2019 Respectfull y Submitted, INTENTIONALLY BLANK /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 ATTORNEY FOR PLAINTIFF MALONE FROST MARTIN PLLC /s/ Cooper Walker ROBBIE MALONE State Bar No. 12876450 Email: rmalone@mamlaw.com EUGENE XERXES MARTIN, IV State Bar No. 24078928 Email: xmartin@mamlaw.com COOPER M. WALKER State Bar No. 24098567 Email: cwalker@mamlaw.com MALONE FROST MARTIN PLLC NorthPark Central, Suite 1850 8750 North Central Expressway Dallas, Texas 75231 P: (214) 346-2630 | F: (214) 346-2631 ATTORNEY FOR DEFENDANT