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Jenkins v. Lazega & Johanson LLC

United States District Court, M.D. Georgia, Macon Division

December 20, 2017




         The Defendant, Lazega & Johanson, LLC, has moved to strike two portions of the deposition testimony errata sheet of the Plaintiff, Chastity Jenkins. Doc. 16. Separately, Jenkins has moved for partial summary judgment, arguing that she is due judgment as a matter of law on Lazega's affirmative defense of bona fide error. Doc. 17. But, as discussed further below, the contested portions of the deposition testimony are not yet material to any motion or issue before the Court, and genuine issues of material fact remain in dispute as to Lazega's bona fide error defense. Accordingly, both motions (Docs. 16; 17) are DENIED.

         I. BACKGROUND

         15 U.S.C. § 1692i(a)(2) of the Fair Debt Collection Practices Act requires debt collectors to bring their legal actions against consumers on debts “only in the judicial district or similar legal entity” where either “such consumer signed the contract sued upon” or “such consumer resides at the commencement of the action.” 15 U.S.C. § 1692k gives consumers whose FDCPA rights are violated a cause of action against the violating debt collector. But 15 U.S.C. § 1692k(c) allows a debt collector to avoid liability if it “shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”

         Jenkins brings this action against Lazega, claiming that Lazega, a law firm, violated 15 U.S.C. § 1692i by filing state collection suits against Jenkins in the wrong judicial venue. Docs. 1; 13. Lazega denies that it violated the FDCPA. Docs. 5; 9; 14. In its original answer, Lazega also stated the following as its tenth affirmative defense: “To the extent any error was made by Defendant-which Defendant denies-such error was a bona fide error and the Plaintiff is therefore barred from recovery.” Doc. 5 at 3. Jenkins moved to strike that defense, arguing that Lazega had “fail[ed] to plead the asserted bona fide error with sufficient particularity.” Doc. 6-1 at 1. Instead of responding to the motion, Lazega amended its answer to add particularity to its bona fide error defense. Doc. 9 at 3-5.

         Jenkins subsequently moved to amend its complaint to correct a scrivener's error concerning Jenkins's residence, and Lazega consented to the motion. Doc. 11. The Court granted the motion, Jenkins filed an amended complaint, and Lazega filed an amended answer. Docs. 12; 13; 14.

         Now, Lazega moves to strike two portions of an errata sheet of Jenkins's deposition; Lazega argues that the changes impermissibly contradict the deposition testimony without adequate explanation. Doc. 16-1. Jenkins responds that the changes are permissible and do not relate to any disputed issues. Doc. 18. Separately, Jenkins moves for partial summary judgment, arguing that she is entitled to judgment as a matter of law on Lazega's bona fide error defense. Doc. 17. Lazega responds that whether it is entitled to the bona fide error defense is a genuine dispute of material fact appropriate for resolution by a jury. Doc. 21.


         A. Lazega's Motion to Strike

         Pursuant to Federal Rule of Civil Procedure 30(e)(1), witnesses are allowed 30 days after their deposition transcript is available to review the transcript and, if they find “changes in form or substance” that should be made to the transcript, “to sign a statement listing the changes and the reasons for making them.” In Norelus v. Denny's, Inc., a case affirming a district court's sanctions against attorneys, the Eleventh Circuit held that “submission of [a] novella-length errata sheet making a slew of material changes to their client's deposition testimony was improper.” 628 F.3d 1270, 1281 (2010). But in Norelus, the Eleventh Circuit noted that the exact scope of a proper Rule 30(e) errata sheet differs among courts, and the Eleventh Circuit did not articulate a rule for district courts to follow. See id. (noting that (1) the Seventh, Ninth, and Tenth Circuits' rule is that changes that contradict the deposition testimony are usually not allowed and may be stricken, but that (2) the Second and Third Circuits appear to permit courts to consider errata sheets even when the changes contradict the deposition testimony); see also Travelers Indem. Co. of Conn. v. Attorney's Title Ins. Fund, Inc., 2016 WL 866368, at *6-7 (M.D. Fla.) (noting that, even post-Norelus, district courts in the Eleventh Circuit differ on whether to adopt a “broad” interpretation of Rule 30(e) by refusing to grant motions to strike substantive changes to discovery through errata sheets, because of safeguards such as allowing the original deposition answers to remain in the record for use at trial, or a “narrow” interpretation of Rule 30(e) by striking substantive changes made by parties to deposition testimony through errata sheets, and adopting the “narrow” view); United Subcontractors, Inc. v. Darsey, 2013 WL 5770559, at *1-2 (M.D. Fla.) (noting the split and adopting the “broad” view of Rule 30(e) and denying the motion to strike).

         Here, Lazega moves to strike two entries from the errata sheet for the deposition testimony of Jenkins. Doc. 16-1. Specifically, Lazega contests Jenkins's changes from (1) “yeah” to “no” in response to the question, “So if someone was looking at your driver's license would [sic] assume you lived at 109 Oakhill Road?”, and (2) “yes” to “no” in response to the question, “You mentioned that you lived in essentially Gwinnett for two years, which would have covered up to about 2014.” Docs. 16-1 at 1; 16-2 at 3:15-17, 4:24-5:3; 16-3 at 2. Lazega argues that the entries both “substantively change the Plaintiff's deposition testimony and squarely contradict her deposition responses.” Doc. 16-1 at 1. Lazega argues further that Jenkins's stated explanations for the changes-to correct a “transcription error” and “[s]ee [surrounding testimony], ” respectively-are insufficient, especially in light of an affidavit from the court reporter who transcribed the deposition, certifying that the original transcript was correct. Id.; Docs. 16-3 at 2; 16-4 at 2.

         Lazega cites a Northern District of Georgia case in support of its position that “errata sheets which contain substantive changes from the party's deposition are impermissible and should be stricken.” Doc. 16-1 at 5-6 (citing Dering v. Serv. Experts Alliance, LLC, 2007 WL 4299968, at *4) (emphasis omitted). But in Dering, a pre-Norelus case, the district court ultimately found that the issue was “not settled in the Eleventh Circuit” and that, “[u]nder the specific circumstances” of the case, the motion to strike should be denied. Dering, 2007 WL 4299968, at *4-5. As Jenkins points out, the contested deposition portions are not relevant to any issue yet before the Court. Doc. 18 at 3. Further, as noted above, it is unsettled in the Eleventh Circuit whether errata sheets may be used, “absent a good reason, ” to contradict deposition testimony. Travelers Indem. Co., 2016 WL 866368, at *7. Accordingly, the Court does not yet need to decide whether to disregard the errata sheet changes, and the Court DENIES Lazega's motion to strike the errata sheet changes. If the disputed testimony becomes relevant in the future, the Court will decide whether to consider the errata sheet then. At that point, the Court would consider factors such as the contradictory nature of the changes, the proffered explanations for the changes, and the court reporter's affidavit.[1]

         B. Jenkins's Motion for Partial Summary Judgment

         A court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A factual dispute is genuine only if ‘a reasonable jury could return a verdict for the nonmoving party.'” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden rests with the moving party to prove that no genuine issue of material fact exists. Info. Sys. & Networks Corp., 281 F.3d at 1224 (citation omitted). The party may support its assertion that a fact is undisputed by “citing to particular parts of materials in the record, including depositions, ...

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