IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS,

DALLAS DIVISION

EDRICK FULLER,

Plaintiff,

v.

CIG FINANCIAL, LLC, AND THE CAR

SOURCE, LLC d/b/a “HIDE AND SEEK

RECOVERY,”

Defendants.

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Civil Action No.: 3-22-cv-1289-D

PLAINTIFF’S MEMORANDUM AND OPINION FOR MOTION TO

COMPEL DISCOVERY

TO THE HONORABLE JUDGE OF SAID COURT comes now Edrick

Fuller (Plaintiff), Pro-se in the above-styled and numbered cause, and files

this its Motion to Compel and Motion for Sanctions and would respectfully

show as follows:

RELIEF REQUESTED. Dismisses of the defenses on liability as

sanctions against the Defendants for Failure to make proper Initial

Disclosures and Discovery terms.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

A. Rule 26(a).

Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure requires

parties to make initial disclosures "without awaiting a discovery request."

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Rule 26(a)(1)(A)

(i) the name and, if known, the address and telephone number of each

individual likely to have discoverable information—along with the subjects of

that information—that the disclosing party may use to support its claims or

defenses, unless the use would be solely for impeachment;

(ii) a copy—or a description by category and location—of all

documents, electronically stored information, and tangible things that the

disclosing party has in its possession, custody, or control and may use to

support its claims or defenses, unless the use would be solely for

impeachment;

(iii) a computation of each category of damages claimed by the

disclosing party—who must also make available for inspection and copying

as under Rule 34 the documents or other evidentiary material, unless

privileged or protected from disclosure, on which each computation is based,

including materials bearing on the nature and extent of injuries suffered;

On Friday October 13, 2023, 43 days after the Discovery Deadline and

2 weeks before Summary Judgement is due, CIG Financial Supplemented

their Initial Disclosures by adding Consolidated Asset Recovery System, Inc.

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stating that they are a non-party to this suit and responsible third-party who is

liable to CIG or to Plaintiff for all or part of Plaintiff's claims against CIG(See

Attachment). As of the filing of this Motion, The Car Source has not even

supplemented its disclosure by adding Consolidated Asset Recovery System,

Inc. as the people who directly hired them. Nor has the Car Source even

submitted Initial Disclosures to Plaintiff.

Fed. R. Civ. P. 37(c)(1). Rule 26(e), which directs parties to supplement

previous disclosures and discovery,"was intended to ensure prompt

disclosure of new information, not to allow parties to spring late

surprises on their opponents under the guise of a 'supplement' to earlier

disclosures." Barlow v. Gen. Motors Corp., 595 F.Supp. 2d 929, 935-36

(S.D. Ind. 2009). Harmlessness is the standard under Rule 37, not

prejudice. Sommer v. Davis, 317 F.3d 686, 692 (6th Cir. 2003). The

burden is on the party disclosing materials late to show that the tardy

disclosure is harmless. Johnson v. Galen of Virginia, Inc., 325 F.3d 776,

782 (6th Cir. 2003). To establish harmlessness, the opposing party must

show that the failure to produce the documents involved an honest

mistake and that the other party had knowledge of the documents.

Sommer, 317 F.3d at 692.

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Plaintiff filed his Complaint June 14, 2022. The deadline for Initial

disclosures passed over a year ago, the deadline for discovery was September

1, 2023. CIG states it was unbeknownst to them between these times that they

hired Consolidated Asset Recovery to perform the repossession. Plaintiff

rejects that excuse. This is not information that was Newly discovered, this is

information that was already known to them and was being tactically withheld

by both defendants. If CIG and the Car source would have supplemented their

initial disclosures in a timely fashion before the close of Discovery deadline,

before and during our conferences to extend the Discovery deadline, Plaintiff

would have had another and justifiable reason to extend the discovery

deadline on his part that the Judge said he did not have. CIG should not be

able to supplement its Initial disclosures this late past the Discovery Deadline,

that was before the Judges order on the Protective order and 2 weeks before

Summary Judgement, and Surprising Plaintiff by shifting Liability to a

non-party who they willfully failed to disclose in a timely manner. This was

done in a scandalous manner in a way that Consolidated Asset Recovery

System, Inc. could not be added as a party, which would allow CIG to be able

to shift liability and ask to be granted summary judgment on damages because

they are not liable. It would also harm and prejudice Plaintiff Who would not

be able to collect damages from Consolidated Asset Recovery System,

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Inc.since they were willfully disclosed of late to where Plaintiff was not able

to add them as a party. It also harms and prejudices the plaintiff as he has to

change his preparation for summary Judgment because CIG has added

someone who they claim is liable that Plaintiff knew nothing about in 2

weeks.

Rule 26(e)(1) requires a party making initial disclosures to "supplement

or correct its disclosures or responses. . . in a timely manner if the party learns

that in some material respect the disclosure or response is incomplete or

incorrect, and that the additional or corrective information has not otherwise

been known to the other parties during the discovery process or in writing."

Fed. R. Civ. P. 26(e)(1).

CIG is trying to undermine the Court and the Judges’ Integrity by

saying the contractor they hired to repossess the vehicle was unbeknownst to

them until October 13, 2023. Hiring someone else who you believe is liable is

not information you forget in a case like this, it is information that you

withhold to protect a party from liability and then be able to shift liability on

later Surprising and causing prejudice to the plaintiff. There is no excuse or

substantial justification that CIG or the Car Source could give as to why

someone who CIG knew they hired and who the Car Source knew they were

hired by, was not supplemented before the Initial Disclosure Deadline and

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Discovery Deadline. A reason for not doing so would be to not give Plaintiff

another reason to have the deadline extended which he was already asking for

under another reason, which would allow them to file a protective order on

discovery responses. Also Plaintiff did not want to say outright his reason for

being late with discovery request because I could not prove it, so I just

insinuated it, but after reading discovery request from CIG, upon next later

shutoff and restart of plaintiffs computer, Plaintiffs computer greeted him

with a blue screen of death as the computer people called it. I have never had

that problem before. The Computer people said it might be a virus or

something that caused it, and the only way to get the computer working again

was to do a fresh install and I would lose everything not downloaded. We had

an in person Conference about this after deposition where CIG also asked for

continuance of a deposition which I now see was to only get in the way of

Plaintiff asking for an extension of the discovery deadline, because they never

scheduled another deposition that they asked for an extension for. They just

wanted to write the motion knowing Pro-se Plaintiff did not fully know what

to do and use it against me. The Court ruled in their favor. Now in light of this

New Information provided By CIG in their Supplemented initial Disclosures

that they already knew of and should have been supplemented before the

deadline of September 1, 2023 and conferences to extend the deadline,

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Plaintiff believes the Court should reverse its granting of protective order and

demand CIG and the Car Source to respond to Plaintiff Discovery request and

allow Plaintiff time to respond to the New party whom he never knew

existed..

A party who fails to comply with its initial disclosure requirements and

duty to timely supplement or correct disclosures or responses may not use any

information not disclosed or supplemented "to supply evidence on a motion,

at a hearing, or at trial, unless the failure was substantially justified or is

harmless." Fed. R. Civ. P. 27(c)(1). Yeti by Molly, Ltd. v. Deckers Outdoor

Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). A party facing sanctions under

Rule 37(c)(1) for failing to make its initial disclosures or timely supplement

or correct incomplete or incorrect responses bears the burden of establishing

that its failure to disclose the required information was substantially justified

or is harmless. Torres v. City of L.A., 548 F.3d 1197, 1213 (9th Cir. 2008).

Defendants intentionally withheld and concealed the fact that there was

another company/party that should be involved in the claim as a party not a

witness. This is something that should have come to their attention and

supplemented, that they hired another Contractor when the Judge issued the

scheduling order, under the Pre-Trial Schedule ordering that joinder of parties

should be done by May 1, 2023 if CIG intended to shift liability to a third

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party that they knew existed. Furthermore, Supplementing their initial

disclosures anytime after August 1, 2023 would have automatically had the

plaintiff to ask the court for a Discovery deadline extension in order to

respond to this New Information that is just not any ole witness that Plaintiff

already had knowledge of. Plaintiff has been greatly prejudiced because he

has proceeded through this litigation for almost a year and a half without

knowledge of important material information about a liable party.

This also puts the Car Source in a position of a complete Failure to

Disclose as they tried to withhold this information to shield the ones who

hired them from liability. The Car source and CIGS withholding of this

important information was in bad faith and is a blatant abuse of the discovery

process.

Rule 37.(4) Evasive or Incomplete Disclosure, Answer, or Response.

For purposes of this subdivision (a), an evasive or incomplete disclosure,

answer, or response must be treated as a failure to disclose, answer, or

respond. Initial disclosures and supplemented initial disclosures are part of

the discovery process. These actions by defendants are considered an abuse of

the discovery process as well.

Rule 37(c) governs failure to disclose information under Rule 26 which

states: A party that without substantial justification fails to disclose

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information required by Rule 26(a) or 26(e)(1), or to amend a prior response

to discovery as required by Rule 26(e)(2), is not, unless such failure is

harmless, permitted to use as evidence at a trial, at a hearing, or on a motion

any witness or information not so disclosed.

SANCTIONS

A monetary Sanction is appropriate because the defendants have been

repeatedly reckless in their disregard of the rules of this court and the Federal

Rules of Civil Procedure as licensed attorneys with years of practice. To start,

docket no 12,15 or 28, both attorneys for defendants filed into this case

without proper notice of appearances by attorneys. The motion for a more

definite statement was a waste of time for Plaintiff to have to respond to, and

for the Judge to rule on. Any reasonable inquiry into the issue would have

informed CIG attorneys that Battery is recognized in Texas as Plaintiff

quickly found out from his simple google search and not wasted our time.

Having the Plaintiff serve again can also be considered a delay and a waste of

time since they answered the first. Pursuant to Fed. R. Civ. P. 7.1 and LR 7.4,

CIG and the Car Source did not file their Certificate of Interested

Persons/Disclosure Statement at their first appearance as required by the

rules, docket no 22,23, instead they did not file their Certificate of Interested

Persons/Disclosure Statement until August 24, 2023. The Mediation that CIG

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kept requesting only makes sense if it was done just to charge their client

another fee, because the lowball number the Defendants started with and low

counter that they would not move off of was a waste of time and could have

been done over the phone or email. Why request mediation if they knew they

were not going to come up from a lowball offer of settlement that they knew

would not be accepted? Also, as of the filing of this Motion, the Car Source

has yet to submit to Plaintiff their Initial Disclosures at all, another abuse of

the Discovery Process, but has requested and received Discovery request from

Plaintiff, but has objected to send their discovery responses to Plaintiff based

on the Judges ruling on CIGS Protective order, because they received its

Discovery request from Plaintiff around the same time as CIG. CIG again

violated FRCP and Local rules when it refused to have a conference notifying

Plaintiff of an ensuing protective order before filing a protective order, a

conference where we could have agreed to extend the discovery deadline,

which would have been the ethical thing to do and not prejudice Plaintiff from

discovery responses when he had been asking to extend the deadline to

receive responses all along. Even though the judges discretion allowed their

scandalous tactic to prevail, they still garnered a warning about not following

the rules. See footnotes docket no 53, pg 5

Even so, it bears emphasizing that the “[f]ailure to comply with a local

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civil rule of this court is to be carefully avoided and should not be

repeated.”

With the untimely supplement of CIGS Initial Disclosure and The Car

Sources absent Initial Disclosure, Plaintiff ask the courts to Sanction both

defendants for their abuse of the Discovery Process, the Judges Scheduling

order and their repeated failure to comply with Local And Federal Rules of

Civil Procedure. These are Licensed Attorneys who are defending this action

as if Judge Fitzgeralds court does on go by the rules that have been required.

Rule 16(f) of the Federal Rules of Civil Procedure authorizes the court

to impose sanctions on a party's motion or on its own motion, including any

sanction authorized by Rule 37(b)(2)(A)(ii-vii), if a party or its attorney fails

to obey a scheduling order or other pretrial order. Id. Sanctions for failure to

obey a discovery order include, among other things, striking a party's

pleadings in whole or in part or rendering a default judgment against the

disobedient party. Fed. R. Civ. P. 37(b)(2)(A)(iii), (vi)

Even though Plaintiff is also asking for monetary sanctions, a sanction

of Default is also appropriate, because “Simply assessing monetary sanctions

does not adequately ensure future compliance with the Federal Rules of Civil

Procedure. The Court is concerned that such sanctions would create an

incentive for law firms and parties to make a calculated decision to engage in

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discovery abuse. Parties and their counsel should not be encouraged to weigh

the benefits of withholding discoverable information against the risk of

sanctions for non-disclosure in the event the abuse is discovered. The Court

believes that the only adequate deterrent in this case under all the

circumstances is a finding of liability against the defendants.” Heath v. Zolotoi,

221 F.R.D. 545, 553 (W.D. Wash. 2004)

Rule 37(c)(1) permits a district court, in its discretion, to enter a default

judgment against " [a] party that without substantial justification fails to

disclose information required by Rule 26(a) or 26(e)(1) ...." FED. R. CIV. P.

37(c)(1) (permitting courts to impose sanctions authorized in Rule

37(b)(2)(C)). Moreover, federal courts have inherent power to impose

sanctions against both attorneys and parties for bad faith conduct in litigation

or for willful disobedience of a court order. Chambers v. NASCO, Inc., 501

U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Roadway Express, Inc. v.

Piper, 447 U.S. 752, 764-66, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980).

Anheuser-Busch v. Natural Beverage Distrib., 69 F.3d 337, 348 (9th Cir.1995)

(dismissal appropriate where " a party has engaged deliberately in deceptive

practices that undermine the integrity of judicial proceedings" ); Henry v. Gill

Indus., Inc., 983 F.2d 943, 946-47 (9th Cir.1993) (dismissal appropriate for "

repeated and flagrant" discovery abuses); North Am. Watch Corp. v. Princess

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Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir.1986) (dismissal appropriate for

concealing documents and violating court orders).

Plaintiff seeks the most serious of sanctions against Defendants because

Defendants have withheld important material information regarding liability

throughout discovery. Discovery closed September 1,2023, and the deadline

for Initial Disclosures has been well over a year. Therefore it is believed that

defendants deliberately withheld information that Plaintiff was entitled to

know if CIG was going to claim them having liability as a defense.

Relief sought in this case is appropriate due to the facts of this case as well as

application of rules 1, 11, 26(g), 33, 34, and 37(d) of the Federal Rules of

Civil Procedure.

Imposition of Sanctions is Justified and is within the inherent power of the

court to impose Sanctions on any litigant. Plaintiff invokes the sanction

remedies available under F.R.Civ.P 37 and the inherent power of the court to

impose Sanctions against defendants for discovery misconduct and repeated

failure to comply with Local and federal rules of Civil Procedure. The nature

of the sanction imposed is a matter left to the discretion of the court. See

Albright v. UpJohn Co. 788 F. 2d 1217, 1222 (6th cir 1986). The Court may

impose a variety of Sanctions ranging from an award of cost and Attorney

fees, to preclusion of Issues or evidence, see e.g Smith v. Schlesinger 513 F

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2d. 462, 467 N 10(D.C Cir 1975). Or the court can enter default. See e.g

Hindman v. National-Ben Franklin Life Ins. Corp 677 F 2d 617,621-622(7th

Cir 1982). The purpose of Federal Rules governing Discovery is to get to the

Truth. See Deseversky v. Republic Aviation Corp 2 F.R.D, 113, 114, (E.D

N.Y 194).

Rule 1 of the Federal Rules of Civil Procedure Establishes the scope and spirit

of Federal Rules.

They Shall be construed and administered to secure the just, speedy and

inexpensive determination of every action

The conduct of the defendants have certainly not facilitated the just, speedy or

inexpensive determination of this action. On the Contrary, the Defendants

strategy has been to withhold, deceive and mislead the Plaintiff. The Bedrock

of the Federal Discovery process is to search for the truth. If Defendants are

allowed to flaunt their obligation of full disclosure, the litigation process is

reduced to a hollow formality, dependent upon luck. This “sporting theory of

justice” was long ago rejected by the Federal Courts. See 8 Charles White and

Arthur R. Miller, Federal Practice and Procedure 2001 at 18-19 (1970 and

Supp. 1992)

CONCLUSION

The scandalous and deceitful actions date back to 2020 when Plaintiff first

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desired to have this claim resolved. This case should have been resolved then.

Under the circumstances, no sanctions against defendants would be too great.

Defendants through their Attorneys at Thompson, Coe, Cousins & Irons, LLP

and The Parzivand Law Firm, PLLC have deliberately withheld important

material information from Plaintiff, repeatedly failed to comply with Local

and Federal Rules of Civil Procedure, failed to comply with Scheduling order,

and has overall undermined the integrity of this court and the Federal

discovery process by abusing it. Initial Disclosure deadlines have passed,

Discovery is now closed, Plaintiff is preparing for Summary Judgement and

CIG decides to Supplement Initial Disclosure shifting liability with two

weeks left. Plaintiff has been Prejudiced.

The court is to respectfully issue an order determining Liability in favor of

Plaintiff and leaving only the issue of damages to Trial. Plaintiff further

request terms.

Dated this 27th day of October 2023

By: /s/Edrick Fuller

Edrick Fuller

1906 Berwick

Dallas, Tx, 75203

edrick.fuller@my.untdallas.edu

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Pro-Se Plaintiff.

CERTIFICATE OF CONFERENCE

I certify that I conferred with counsel for Defendant CIG Fininacial LLC

Farrah Ahmed, through email regarding the contents and merits of this

Motion on October 14 and 16, 2023, and that pro se Plaintiff would be filing a

motion for sanctions for default, compelling discovery and to extend time to

file Summary Judgement. However, the Attorney for the Car Source has yet

to respond, which is normal for him, he rarely has responded at all.

/s/Edrick Fuller

Edrick Fuller

CERTIFICATE OF SERVICE

I hereby certify that on October 27, 2023, electronically filed this document

with the U.S. District Court for the Northern District of Texas and, through

the electronic filing system, a copy of the foregoing document was served on

the following counsel and parties of record:

Farrah I. Ahmed

Thompson, Coe, Cousins & Irons, LLP

Plaza of the Americas

700 North Pearl, Twenty-Fifth Floor

Dallas, Texas 75201-2832

Telephone: (214) 871-8200

Email: fahmed@thompsoncoe.com

Hessam Parzivand

The Parzivand Law Firm, PLLC

10701 Corporate Dr., Suite 185

Stafford, Texas 77477

Email: hp@parzfirm.com

Attorney for Defendant The Car Source LLC

/s/Farrah Ahmed

Farrah I. Ahmed, Esq

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/s/Edrick Fuller

Edrick Fuller

Attachments

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Case 3:22-cv-01289-D Document 54 Filed 10/27/23 Page 19 of 23 PageID 457
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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS,

DALLAS DIVISION

EDRICK FULLER,

Plaintiff,

v.

CIG FINANCIAL, LLC, AND THE CAR

SOURCE, LLC d/b/a “HIDE AND SEEK

RECOVERY,”

Defendants.

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Civil Action No.: 3-22-cv-1289-D

ORDER GRANTING MOTION FOR SANCTIONS

THIS MATTER having come up on the motion of Plaintiff, and the courts

having reviewed the record and files herein and being fully advised of the

premises does hereby ORDERED, ADJUDGED AND DECREE that

defenses raised by the Defendants herein including as to liability is hereby

stricken and the matter will proceed to Trial only on the issue of damages to

which Plaintiff is entitled. Plaintiff is further awarded terms in the amount of

$___________________.

IT IS SO ORDERED.

SIGNED on this _______ day of __________________________, 2023.

UNITED STATES DISTRICT COURT JUDGE

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