I know several of us here at CNET have filed claims against CRA's. I am considering filing a motion for partial summary judgment for the issue of liability against CRA for FCRA violations. Anyone here ever file a motion for summary judgment against CRA?
i have not. I have not filed in fed. court either, done only small claims. But the theory is interesting. I will be following this thread.
CRA filed their answer. Going to make a formal request for production of documents next week. I believe I have enough evidence for summary judgment, but it won't hurt to do a little rummaging through the CRA's files. Hopefully, assuming the CRA cooperates with my request, I can pursue summary judgment on the issue of liability soon. When I do file the motion for summary judgment, I am only going to request a finding against the CRA for violations of the FCRA. Not a determination if the violations were willfull or negligent. That way, if a finding against the CRA is made at summary judgment, I should be able to bring a lawyer on board (knowing full well he will be paid, as a finding on any violation in summary judgment will automatically mandate his fees be paid by the defense). In which case, the lawyer can finish discovery (negligent VS. willfull, determing actual damages, and punitive) and proceed with trial. Seems kind of risky, hoping to bring a lawyer in after summary judgment, but I really think I have some solid violations. I have over 10 violations against the CRA with good evidence. Any thoughts???
Is your lawsuit filed in the United States District Court (federal court) or in a state court? If your lawsuit is filed in a state court, which state? If your lawsuit is filed in a state court, what is the name of the court (i.e., small claims court, District Court, Superior Court, etc.)?
Jthoma, my suit is filed in Federal court. Thought about state, but thought I could do more damage to the defendants in Federal
cinderella, you cannot commence discovery in Federal Court until after the Rule 26(f) Conference. I made a Federal Procedure "cheat sheet" for reference. I'll make it available to you. Go to http://briefcase.yahoo.com/jthoma@sbcglobal.net Go into folder called "My Documents;" Open the pdf file entitled Federal Court Timeline. Disregard comments about local rules for Southern District of Texas. However, you should find and review the local rules with whichever District Court you are in. The document will remain available for a limited time. If you want the document, copy it to your computer.
Thanks for the link Jhotoma. I just downloaded it and it looks like I need to do some research into this issue as far as complying with Rule 26 (f)(d) before I make my formal request for discovery. Do you know what exactly is meant by: "A party may not seek discovery from any source before the the parties have conferred as required by Rule 26(f). FRCP26(d). Can the parties confer via the telephone to satify this Rule26 or does it have take place at some scheduled conference at the court? I already have a telephone set up with defense counsel to discuss the claim - possible settlement - and a calendar for discovery. Thanks for any pointers!
FRCP 26(f) (f) Conference of Parties; Planning for Discovery. Except in categories of proceedings exempted from initial disclosure under Rule 26(a)(1)(E) or when otherwise ordered, the parties must, as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), confer to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule 26(a)(1), and to develop a proposed discovery plan that indicates the parties' views and proposals concerning: (1) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement as to when disclosures under Rule 26(a)(1) were made or will be made; (2) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues; (3) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and (4) any other orders that should be entered by the court under Rule 26(c) or under Rule 16(b) and (c). The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. A court may order that the parties or attorneys attend the conference in person. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule (i) require that the conference between the parties occur fewer than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b), and (ii) require that the written report outlining the discovery plan be filed fewer than 14 days after the conference between the parties, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference. Simply that they must confer. Doesn't say "how", unless the judge so orders.
Well I did some research and it appears conference by telephone will meet the requirments. Had everything ready to go to meet the 26(f) requirement, including compliance of local rules, but the defense was not. Apparently, they are still waiting for their files from the CRA. Uh-huh. Can't open up formal discovery until we "conference." Hope this isn't some stall tactic. (?) Anyoo, set up a new "conference" date to go over the mandates of 26(f).
cinderella, Looks like you're on the right track now. Do you mind telling us which U.S. District Court you and in and who the judge is? With this information we can go online to the Court's website and look at the Court's local rules and any "special" rules, procedures and forms used by the judge in your case.
Jthoma, I filed in the California Central District court - in the Southern Division. The judge is GLT (not the magistrate). One day after the defense filed their answer, I got a notice from the court about a scheduled conference in June. And a reminder for the parties to comply with this rule or be subjected to sanctions.
That's the one. I have been using it online to view local rules. But I didn't think to check for the rules of the judge. Understanding FCRA is one thing, but to understand Federal Rules of Civil Procedure to present your case, is something else. Seems like 90% of the battle! Will post updates.
