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Leyse v. Bank of America N. A.

United States District Court, D. New Jersey

June 14, 2019

MARK LEYSE, Plaintiff,


          Steven C. Mannion, United States Magistrate Judge.

         Before this Court is Plaintiff Mark Leyse's (“Mr. Leyse”) informal motion to reopen discovery against non-party DialAmerica Marketing, Inc. (“DialAmerica”).[1] DialAmerica opposes.[2] The Court has reviewed the respective submissions and decides the issues without oral argument.[3] For the reasons set forth herein, the Court DENIES Mr. Leyse's motion.


         This action arises from allegations that Bank of America violated the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(B), and the regulation, 47 U.S.C. § 64.1200(a)(2), by placing a prohibited promotional voice call to a residential telephone line.[5] Mr. Leyse claims that he received that prerecorded voice call on or about March 11, 2005 from DialAmerica on behalf of Bank of America.[6]

         That call was the basis for two prior class-action complaints.[7] Mr. Leyse's roommate at the time of the call, Genevieve Dutriaux, filed the first complaint on April 12, 2005 in the Southern District of New York.[8] The second action was filed by Mr. Leyse himself on March 10, 2009 (“Leyse I”) in the Western District of North Carolina.[9] Leyse I was transferred to the Southern District of New York and dismissed on June 14, 2010.[10]

         Mr. Leyse then filed this action on December 5, 2011.[11] In October 2013, the Third Circuit found that “[b]ecause Leyse was a putative member of th[e] alleged class [in his roommate's action], the statute of limitations on his claim was tolled from [April 12, 2005] until the case was administratively closed on December 1, 2008.”[12] Mr. Leyse's Amended Complaint, filed in July 2017, also claims that he received the prerecorded voice on or about March 11, 2005, [13] but defines the “Class Period” as the “time during the period beginning four years prior to the commencement of this action and continuing until the present.”[14]

         Mr. Leyse began his campaign of discovery against non-party DialAmerica in or about July 2017.[15] Discovery was supposed to end on November 30, 2017.[16] However, the Court granted Mr. Leyse several extensions to complete limited and specific discovery with DialAmerica.

         On November 27, 2018, the Court ordered DialAmerica to comply with Mr. Leyse's subpoena.[17] However, the Court was informed on January 25, 2019 that no discovery had been completed since at least November 2018.[18] Thereafter, the Court ordered that the remaining non-party discovery be completed within sixty days.[19] The Court then extended the end date a final time to April 22, 2019.[20] Mr. Leyse raised the present dispute on May 9, 2019.[21]


         Magistrate judges are authorized to decide any non-dispositive motion designated by the Court.[22] This District specifies that magistrate judges may determine all non-dispositive pre-trial motions which includes discovery motions.[23] Decisions by magistrate judges must ordinarily be upheld unless “clearly erroneous or contrary to law, ”[24] but where the decision concerns a discovery dispute the ruling “is entitled to great deference and is reversible only for abuse of discretion.”[25]


         A party seeking to compel discovery bears the initial “burden of showing that the information sought is relevant to the subject matter of the action.”[26] Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.”[27] Non-party discovery, however, requires an even stronger showing of relevance than typical party discovery.[28]

         Then, as here, if the time for obtaining discovery has expired, the party seeking to re-open discovery must demonstrate good cause.[29] “A determination of good cause depends on the diligence of the moving party” where “[t]he moving party has the burden of demonstrating that despite its diligence, it could not reasonably have met the scheduling order deadline.”[30] Good cause does not exist upon a showing of lack of prejudice to the nonmovant.[31]

         In evaluating whether discovery should be reopened, courts consider the following factors: “(1) the good faith and diligence of the moving party, (2) the importance of the evidence, (3) the logistical burdens and benefits of re-opening discovery, [and] (4) prejudice to the nonmoving party.”[32]


         Mr. Leyse seeks an order reopening fact discovery regarding telemarketing calls in each year from 2003 to 2011.[33] He argues that this period is relevant because his discovery requests directed at Bank of America and his subpoena served upon DialAmerica sought information and records for this period.[34] Nonetheless, the polestar of discovery is relevance to a party's claim or defenses, [35] not their discovery wishes.

         A. Records 2003 to December 4, 2007

         The Amended Complaint defines the Class Period as the “time during the period beginning four years prior to the commencement of this action and continuing until the present.”[36] The Complaint was filed in 2011, and thus, the Class Period is December 5, 2007 to the present. There is no mention in the Amended Complaint of any call prior to December 5, 2007 other than the March 11, 2005 call received by Mr. Leyse. Mr. Leyse has not provided the Court with any information to support the relevance of records prior to 2007. Consequently, Mr. Leyse has not satisfied his burden to show that telemarketing records prior to December 5, 2007, other than the call he received, are relevant to the claims in this suit, and he cannot demonstrate that good cause exists to reopen discovery for these records. His motion to reopen discovery for telemarketing records prior to December 5, 2007, with the one exception, will therefore be DENIED.

         B. Records December 5, 2007 to 2008

         DialAmerica asserts that its records from 2007 and 2008 were corrupted and are not retrievable. In 2013, DialAmerica transferred its data from magnetic tapes, where the data was originally maintained, to disk drives, but some of the data did not transfer due to corruption. This occurred well before Mr. Leyse sought any discovery from DialAmerica though he was aware of their involvement from the outset. As discussed above, the calls records from 2007, except those after December 5, 2007, are not even relevant to this action as they occurred prior to the Class Period.

         For the records that would be relevant, Mr. Leyse has not demonstrated good faith and diligence in obtaining these records, especially because he waited such a significant time before requesting them, and he fails to appreciate the logistical burdens of reopening discovery at such a late stage in the proceedings. The Court notes the prejudice to DialAmerica if the Court reopened discovery due to its status as a non-party and its already lengthy production in response to Mr. Leyse's subpoena. Mr. Leyse has not provided any reasonable basis for a computer-forensics expert to examine records. DialAmerica provided an affidavit explaining the corruption of the calls from 2007 to 2008, [37] and this affidavit is proportional to the needs of this ...

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