Schneider et al v. CitiMortgage, Inc. et al, No. 5:2013cv04094 - Document 547 (D. Kan. 2018)
Court Description: MEMORANDUM AND ORDER denying 522 Motion for Leave to File Under Seal; granting 546 Motion for Order for compliance with court's order 542 . Plaintiffs shall file no later than May 4, 2018, either their separate responses to the defendants' pending motions for summary judgment or a request for extension of time to comply with the court's order. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 4/27/18. (msb)
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Schneider et al v. CitiMortgage, Inc. et al Doc. 547 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS RANDALL A. SCHNEI DER and AMY L. SCHNEI DER Plaint iffs, v. No. 13- 4094- SAC CI TI MORTGAGE, I NC., et . al., Defendant s. MEMORANDUM AND ORDER The case com es before t he court on t he defendant s’ m ot ion for leave t o file under seal ( ECF# 522) select ed pages from t he plaint iffs’ counsel’s deposit ion. The part ies have fully briefed t his m ot ion. On April 26, 2018, t he defendant s filed a m ot ion for com pliance ( ECF# 546) wit h t he court ’s order ( ECF# 542) requiring t he plaint iff t o file separat e responses. Wit hout wait ing for t he plaint iffs’ writ t en response, t he court t akes up t his second m ot ion as it requires im m ediat e at t ent ion. M OTI ON FOR LEAVE The defendant s, Cit iMort gage, I nc. and Cit ibank, N.A., seek t o file t his deposit ion excerpt as Exhibit W in support of t heir m ot ion for sum m ary j udgm ent . ECF# # 523 and 524. The defendant s’ m ot ion for leave does not at t ach t his deposit ion excerpt as a sealed exhibit . Therefore, t he defendant s’ m ot ion fails t o com ply wit h t he procedure required by D. Kan. Rule Dockets.Justia.com 5.4.6( a) ( 2) . Consequent ly, t he defendant s’ m ot ion does not sat isfy t heir dut y t o file a proper m ot ion for leave under t he prot ect ive order. ECF# 54, ¶ 6. The defendant s explain t heir m ot ion was filed in an “ abundance of caut ion.” ECF# 522. They have disput ed t he plaint iffs’ counsel’s designat ion of her ent ire deposit ion as confident ial. They at t ach a let t er dat ed March 21, 2016, writ t en t o t he plaint iffs’ counsel challenging her confident ial designat ion of t he ent ire deposit ion and her failure t o ident ify which t est im ony fell under t he prot ect ed cat egories of t he prot ect ive order. ECF# 545- 1. I n t heir reply, t he defendant s point t o prior proceedings before t he m agist rat e j udge over t he filing of counsels’ deposit ion under seal. ECF# 545, p. 2. Over t wo years ago, t he defendant s asked t he m agist rat e j udge for leave t o file plaint iffs’ counsel’s deposit ion under seal as an exhibit t o t heir m ot ion t o disqualify. ECF# 312. Aft er laying out Tent h Circuit ’s requirem ent s for sealing court filings, t he m agist rat e j udge ruled: The pract ical difficult y t hat arises in t his case and m any ot hers is t hat defendant s are required by t he prot ect ive order t o m ove t o file under seal docum ent s designat ed as “ confident ial,” including t hose designat ed by opposing part ies. Because t he exhibit s defendant s seek t o file under seal were designat ed confident ial by plaint iffs, plaint iffs are t he part ies in t he best posit ion t o m ake a showing of a significant int erest t hat out weighs t he presum pt ion in favor of public filing. The court will allow defendant s t o file t he port ions of Ms. Huffm an’s deposit ion t hey at t ached t o t heir m ot ion under seal for t he t im e being. This ruling is subj ect t o being revisit ed. However, it appears t hat m uch of t he deposit ion t est im ony does not cont ain confident ial inform at ion. For t hat reason, by April 7, 2016, t he court orders defendant s t o file a separat e copy for public viewing, redact ing only t hose port ions t hat t hey believe cont ain confident ial inform at ion. ECF# 315, p. 2. The defendant s subsequent ly filed deposit ion excerpt s in com pliance wit h t he m agist rat e j udge’s order. ECF# 318. The defendant s, however, do not say whet her t heir proposed Exhibit W is already part of t he court record appearing at ECF# 318. And wit hout a copy of Exhibit W before it , t his court cannot m ake t his det erm inat ion. The plaint iffs’ response t o t he defendant s’ m ot ion is wide of t he m ark. Despit e t he m agist rat e j udge’s prior order, t he plaint iffs’ response does not acknowledge t he Tent h Circuit ’s requirem ent s for sealing court filings and does not at t em pt any showing of a significant int erest t hat out weighs t he presum pt ion in favor of public filing. I nst ead, t he plaint iffs disput e t he defendant s’ m ot ives and m et hods in m aking t he plaint iffs’ counsel’s deposit ion part of t he sum m ary j udgm ent record. The plaint iffs lace t hese argum ent s wit h charact erizat ions and at t acks on t he defendant s’ reasons for cit ing counsel’s deposit ion inst ead of ot her docum ent s and t he relevance of t he defendant s’ sum m ary j udgm ent argum ent s. The plaint iffs’ at t acks offer only speculat ion and are not well- grounded in fact or law. Thus, t he court finds no genuine issue over t he defendant s’ good fait h in using t he deposit ion as relevant and adm issible evidence in support of t heir sum m ary j udgm ent m ot ion. Ot her aspect s of t he plaint iffs’ argum ent s are bet t er reserved for t heir response t o t he sum m ary j udgm ent m ot ion. More im port ant ly, t he plaint iffs do no m ore t han presum e t hat t heir counsel’s deposit ion t est im ony m eet s t he requirem ent s for sealing. This t oo is not enough for considering t he need for sealing Exhibit W. The plaint iffs were warned of t his procedure not only in t he m agist rat e j udge’s order quot ed above, but t his court t oo filed an order in January of 2017 which sum m arily denied t he plaint iffs’ m ot ion for leave t o file under seal docum ent s m arked as confident ial for failure t o offer “ any argum ent s or grounds as required for sealing, see Digit al Ally, I nc. v. Ut ilit y Associat es, I nc., 2014 WL 631954 ( D. Kan. 2014) , and Flohrs v. Eli Lilly and Co., 2013 WL 4773515 ( D. Kan. 2013) ( and cases cit ed in bot h) .” ECF# 415, p. 1. When t he plaint iffs renewed t heir m ot ion for leave, t he dist rict court in February of 2017, ruled: The plaint iffs' present m ot ion com plies wit h t heir prot ect ive order ( Dk. 54, ¶ 6) , and t he plaint iffs alt ernat ively argue t he docum ent s should be filed wit hout sealing t hem . Absent t he defendant s com ing forward wit h argum ent s in support of sealing, t he court agrees wit h t he plaint iffs and denies t he plaint iffs' m ot ion t o file under seal. The plaint iffs m ay file t hese docum ent s absent an int ervening m ot ion t o seal by t he defendant s. ECF# 433, p. 3. The plaint iffs here have not offered any basis in law or fact for sealing Exhibit W and have not filed any subsequent m ot ion asking for t his relief. Their argum ent s against t he defendant s using t his exhibit are speculat ive and unpersuasive. Having been warned t wice on t he rules governing sealing, t he plaint iffs are not ent it led t o any hearing on t his m at t er or t o any leave for filing subsequent m ot ions for sealing t his exhibit . M OTI ON FOR COM PLI AN CE According t o t he defendant s, t he t im e has expired for t he plaint iffs t o file t heir separat e responses t o t he defendant s’ separat e m ot ions for sum m ary j udgm ent , and t he plaint iffs have not filed a request for ext ension of t im e. The defendant s not e t hat on April 17, 2018, t he sam e day t hat t heir responses were due t o be filed, t he plaint iffs filed t heir m ot ion for leave t o file a consolidat ed response exceeding t he court ’s page lim it at ion st at ed in t he pret rial order ( ECF# 519, p. 39) . ECF# 541. The very next day, April 18, 2018, t he court ent ered a t ext ent ry order t hat denied t he plaint iffs’ leave and direct ed t he plaint iffs t o “ file separat e responses t o t hese separat ely pending m ot ions for sum m ary j udgm ent .” ECF# 542. Not presum ing t o know t he addit ional t im e needed by t he plaint iffs t o com ply wit h t his order, t he court did not address deadlines in it s order and expect ed t he plaint iffs would prom pt ly follow up wit h an ext ension request . They have not done so. Frankly, t he procedural hist ory of t his case and t he court ’s prior orders are reason enough t hat t his case should not be in t his post ure. next Wit h t hat said, t he plaint iffs have unt il May 4t h t o file t heir separat e responses t o t he defendant s’ pending m ot ions for sum m ary j udgm ent or t o file a request for ext ension of t im e t o com ply wit h t he court ’s order. The court expect s t his will not happen again, but if it does, enforcem ent pursuant t o D. Kan. Rule 7.4( b) will be followed. I T I S THEREFORE ORDERED t hat t he defendant s’ m ot ion for leave t o file Exhibit W under seal ( ECF# 522) is denied, but t he defendant s are not relieved of t heir dut y t o com ply wit h t he prot ect ive order; I T I S FURTHER ORDERED t hat t he defendant s’ m ot ion for com pliance ( ECF# 546) wit h t he court ’s order ( ECF# 542) is grant ed, and t he plaint iffs shall file no lat er t han May 4, 2018, eit her t heir separat e responses t o t he defendant s’ pending m ot ions for sum m ary j udgm ent or a request for ext ension of t im e t o com ply wit h t he court ’s order. Dat ed t his 27t h day of April 2017 at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge
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