Tinsley v. OneWest Bank, FSB, No. 3:2013cv23241 - Document 72 (S.D.W. Va. 2014)
Court Description: MEMORANDUM OPINION AND ORDER granting in part and denying in part Plaintiff's 46 MOTION to Compel Production of Discovery Requests from the Defendant; denying Plaintiff's 46 REQUEST for Reasonable Attorney Fees. Signed by Magistrate Judge Cheryl A. Eifert on 12/10/2014. (cc: attys) (mkw)
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Tinsley v. OneWest Bank, FSB Doc. 72 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION BETTY TIN SLEY, Plain tiff, v. Cas e N o .: 3 :13 -cv-2 3 2 4 1 ON EW EST BAN K, FSB, D .B.A. FIN AN CIAL FREED OM, D e fe n d an t. MEMORAN D U M OPIN ION AN D ORD ER Pending before the Court is Plaintiff’s Motion to Com pel Production and Request for Reasonable Attorney Fees. (ECF No. 46). Defendant filed a response in opposition to the m otion to com pel, (ECF No. 51), and the tim e to file a reply m em orandum has expired. On Decem ber 9, 20 14, the parties appeared for oral argum ent. After considering the argum ents of counsel, the Court GRAN TS, in part, and D EN IES, in part, the m otion to com pel as set forth below. In addition, the Court D EN IES Plaintiff’s m otion for reasonable expenses under Fed. R. Civ. P. 37(a)(5)(A) and 37(a)(5)(C). I. Re le van t Pro ce d u ral H is to ry Plaintiff filed the instant action in the Circuit Court of Putnam County, West Virginia on August 16, 20 13, seeking dam ages related to a reverse m ortgage she entered into with Financial Freedom Senior Housing Funding Corporation, the direct predecessor of defendant Financial Freedom. Plaintiff claim ed breach of contract, fraud, intentional m isrepresentation, violations of the West Virginia Consum er Credit and 1 Dockets.Justia.com Protection Act (“WVCCPA”), intentional infliction of em otional distress, negligence, and reckless or negligent m isrepresentation stem m ing from allegedly inappropriate service fees im posed by Defendant, and from Defendant’s practice of force-placing and charging Plaintiff for excessive and unnecessary flood insurance. Defendant rem oved the action to this Court on Septem ber 19, 20 13. On October 9, 20 13, Plaintiff filed a Second Am ended Com plaint with the consent of Defendant, and on Novem ber 8, 20 13, Defendant filed a Motion to Dism iss the Second Am ended Com plaint. In late J anuary 20 14, Defendant m oved the Court to stay written discovery pending the Court’s consideration of the Motion to Dism iss. The Court granted the m otion to stay. In March, the Court ruled on the Motion to Dism iss, granting it in part and denying it in part. The Court dism issed all of Plaintiff’s fraud and intentional m isrepresentation claim s, all of her intentional infliction of em otional distress claim s, all of her negligence and reckless or negligent m isrepresentation claim s, and som e of her breach of contract and WVCCPA claim s. Rem aining are: (1) Plaintiff’s claim that Defendant required her to get flood insurance in excess of what was required under the Deed of Trust, force-placed the insurance, and charged the cost to Plaintiff; and (2) her claim s under the WVCCPA that (a) Defendant wrongfully im plied Plaintiff was required by com pany policy and federal law to purchase additional flood coverage, and (b) Defendant twice threatened to foreclose on her property if she did not pay a property charge of $ 1,369.70 . In April, the Court issued a Scheduling Order, and discovery on the surviving claim s began. In May, Plaintiff filed a m otion for leave to file a Third Am ended Com plaint. Shortly thereafter, in J une, Plaintiff filed the instant m otion to com pel discovery responses to her first and second sets of written discovery. The first set of discovery 2 apparently was served with the com plaint when it was initially filed in state court, and the second set of discovery was served in late March after the Court’s ruling on the Motion to Dism iss. The m otion to com pel was set for hearing in August; however, the hearing was continued at the request of the parties so that they could discuss the possibility of resolving the m atters in dispute. In the m eantim e, Plaintiff was granted leave and filed a Third Am ended Com plaint, which Defendant answered on August 19, 20 14. A revised Scheduling Order was entered with a discovery deadline of March 2, 20 15. According to the docket sheet, no form al activity occurred in the case after entry of the Scheduling Order in August until Novem ber, when the parties notified the Court that they had not resolved their differences and desired to proceed with discovery. At that tim e, the m otion to com pel and for costs was scheduled for hearing. II. D is cu s s io n After hearing from the parties regarding each disputed discovery response, the Court ORD ERS as follows: 1. Plaintiff’s m otion to com pel is GRAN TED , and Defendant shall provide full and com plete answers to Plaintiff’s First Set of Interrogatories, In te rro gato ry N o s . 3 , 4 , an d 9 . Although Defendant argues that it has provided Plaintiff with docum ents showing the nam es and contact inform ation requested in response to Interrogatory No. 3, Plaintiff disagrees. Defendant says the inform ation is contained in approxim ately four letters that have been produced. Accordingly, it should not be difficult for Defendant to provide the inform ation even if it has already been supplied pursuant to Fed. R. Civ. P. 33(d). In regard to Interrogatory No. 4, Defendant states that it has provided Plaintiff will a call log and all recordings. Plaintiff agrees that she has received these documents and sim ply wants to m ake sure she has everything responsive. 3 Defendant will confirm that all responsive inform ation has been provided. Finally, Interrogatory No. 9 requests training m aterials. Defendant contends that these m aterials are no longer relevant given that J udge Cham bers has dism issed all claim s related to negligent training. However, Plaintiff asserts that she needs to discover these m aterials to substantiate her claim that Defendant’s em ployees m ade oral statem ents to her in violation of the WVCCPA. Plaintiff believes that Defendant’s em ployees are trained to m ake incorrect and im proper statem ents regarding the required flood insurance to be obtained by m ortgagees, which led to her im proper charges for excessive forced-placed flood insurance. Plaintiff argues that Defendant’s training m aterials are relevant to prove that such statem ents were m ade. Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties m ay obtain discovery regarding any m atter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, docum ents, or other tangible things and the identity and location of persons having knowledge of any discoverable m atter ... Relevant inform ation need not be adm issible at the trial if the discovery appears reasonably calculated to lead to the discovery of adm issible evidence.” Although the Federal Rules of Civil Procedure do not define what is “relevant,” Rule 26(b)(1) m akes clear that relevancy in discovery is broader than relevancy for purposes of adm issibility at trial.1 Caton v. Green Tree Services, LLC, Case No. 3:0 6-cv-75, 20 0 7 WL 2220 281, at *2 (N.D.W.Va. Aug. 2, 20 0 7) (the “test for relevancy under the discovery rules is necessarily broader than the test for 1 Under the Federal Rules of Evidence, relevant evidence is ‘evidence having any tendency to m ake the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ Boy kin Anchor Co., Inc. v. W ong, Case No. 5:10 -cv-591FL, 20 11 WL 5599283 at * 2 (E.D.N.C. Nov. 17, 20 11) (citing United Oil Co., v. Parts Assocs., Inc, 227 F.R.D. 40 4. 40 9 (D.Md. 20 0 5)). 4 relevancy under Rule 40 2 of the Federal Rules of Evidence”); Carr v. Double T Diner, 272 F.R.D. 431, 433 (D.Md. 20 10 ) (“The scope of relevancy under discovery rules is broad, such that relevancy encom passes any m atter that bears or m ay bear on any issue that is or m ay be in the case”). The party resisting discovery, not the party seeking discovery, bears the burden of persuasion. See Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243– 44 (M.D.N.C. 20 10 )(citing W agner v. St. Paul Fire & Marine Ins. Co., 238 F.R.D. 418, 424– 25 (N.D.W.Va. 20 0 6). Taking in to account the broad scope of discovery, the training m aterials are relevant. Nevertheless, sim ply because inform ation is discoverable under Rule 26, “does not m ean that discovery m ust be had.” Schaaf v. Sm ithKline Beecham Corp., 233 F.R.D. 451, 453 (E.D.N.C. 20 0 5) (citing N icholas v. W y ndham Int'l, Inc., 373 F.3d 537, 543 (4th Cir. 20 0 4)). Here, Defendant also objects to producing the m aterials on the basis of burdensom eness and privilege. For good cause shown under Rule 26(c), the court m ay restrict or prohibit discovery that seeks relevant inform ation when necessary to protect a person or party from annoyance, em barrassm ent, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c). To succeed under the “good cause” standard of Rule 26(c), the party resisting discovery m ust m ake a particularized showing as to why a protective order should issue. Baron Fin. Corp. v. Natanzon, 240 F.R.D. 20 0 , 20 2 (D.Md. 20 0 6). Conclusory and unsubstantiated allegations are sim ply insufficient to support an objection based on the grounds of annoyance, burdensom eness, oppression, or expense. Convertino v. United States Departm ent of Justice, 565 F. Supp.2d 10 , 14 (D.D.C. 20 0 8) (the court will only consider an unduly burdensom e objection when the objecting party dem onstrates how discovery is overly broad, burdensom e, and oppressive by subm itting affidavits or other evidence revealing the nature of the 5 burden); Cory v. Aztec Steel Building, Inc., 225 F.R.D. 667, 672 (D.Kan. 20 0 5) (the party opposing discovery on the ground of burdensom eness m ust subm it detailed facts regarding the anticipated tim e and expense involved in responding to the discovery which justifies the objection); Bank of Mongolia v. M & P Global Financial Services, Inc., 258 F.R.D. 514, 519 (S.D.Fla. 20 0 9) (“A party objecting m ust explain the specific and particular way in which a request is vague, overly broad, or unduly burdensom e. In addition, claim s of undue burden should be supported by a statem ent (generally an affidavit) with specific information demonstrating how the request is overly burdensom e”). In the case of inform ation withheld from discovery on the basis of privilege, the party withholding the inform ation is required to produce contem poraneously with its responses a privilege log that satisfies the requirem ents of Fed. R. Civ. P. 26(b)(5). Failure to serve such a log on the requesting party m ay result in a waiver of the privilege. See Mezu v. Morgan State Univ., 269 F.R.D. 565, 577 (D.Md. 20 10 ) (“Absent consent of the adverse party, or a Court order, a privilege log (or other com m unication of sufficient inform ation for the parties to be able to determ ine whether the privilege applies) m ust accom pany a written response to a Rule 34 docum ent production request, and a failure to do so m ay constitute a forfeiture of any claim s of privilege.”). Defendant’s objection to Interrogatory No. 9 based on burdensom eness is not persuasive given that Defendant subm its no detailed facts in support of that contention. Indeed, at the hearing, defense counsel adm itted that the training m aterials m ay not even contain specific references to forced-placed flood insurance. Moreover, Defendant served no privilege log with its responses. Therefore, its claim of privilege also appears to be without m erit. 6 2. Plaintiff is granted leave to replace In te rro gato ry N o s . 11 an d 12 with am ended versions, but her m otion to com pel answers to these interrogatories, as currently written, is D EN IED . Interrogatory Nos. 11 and 12 ask for inform ation regarding Defendant’s dealings with all flood insurance com panies, not just Lexington Insurance Com pany, the carrier involved in Plaintiff’s case. In light of the dism issal of all of Plaintiff’s fraud, m isrepresentation, and em otional distress claim s, Plaintiff could not dem onstrate that these interrogatories sought relevant inform ation. Moreover, Rule 26(b)(2)(C)(iii) requires the court, on motion or on its own, to lim it the extent of discovery, when “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the im portance of the issues at stake in the action, and the im portance of the discovery in resolving the issues.” This rule “cautions that all perm issible discovery m ust be m easured against the yardstick of proportionality.” Ly nn v. Monarch Recovery Managem ent, Inc., 285 F.R.D. 350 , 355 (D. Md. 20 12) (quoting Victor Stanley , Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md. 20 10 )). Even if the answers could provide tangentially relevant inform ation, the anticipated burden on the Defendant in collecting the inform ation would far outweigh its potential usefulness to Plaintiff. 3. Plaintiff’s m otion to com pel is GRAN TED , and Defendant shall provide full and com plete answers to Plaintiff’s Second Set of Interrogatories, In te rro gato ry N o s . 1, 5, an d 6 . Both Plaintiff and Defendant agree that Defendant has already provided the information requested in Interrogatory Nos. 1 and 6. As far as Interrogatory No. 5, Defendant shall supply Plaintiff with the nam es, titles, and contact inform ation of each and every em ployee or agent who played any role in the decisionm aking, or other process, that resulted in forced-placed flood insurance on Plaintiff’s 7 property. 4. Plaintiff’s m otion to com pel In te rro gato ry N o . 2 is D EN IED at this tim e. At this point in discovery, Plaintiff has shown no relevancy to the inform ation requested. However, if Plaintiff can lay a foundation for the discovery, the Court will reconsider its ruling. 5. Plaintiff’s m otion to com pel In te rro gato ry N o . 7 is D EN IED . In light of the dism issal of Plaintiff’s fraud, m isrepresentation, and intentional infliction of em otional distress claim s, this interrogatory does not seek information relevant to any claim or defense. 6. Having ruled on Plaintiff’s m otion to com pel, the Court considers Plaintiff’s m otions for reasonable expenses and D EN IES the m otion for the following reasons. First, under L. R. Civ. P. 37.1(b) and Fed. R. Civ. P. 37(a), prior to filing a m otion to com pel, the m oving party m ust arrange to m eet and confer with the nonresponding party in an effort to resolve the discovery dispute before resorting to court action. That did not happen in this case. To “m eet and confer” under the local rule m eans to either speak on the telephone or to confer in person. L. R. Civ. P. 37.1(b). Sending adverse counsel a letter com plaining about the inadequacies of his or her client’s discovery responses is not the sam e as arranging a “m eet and confer” session. Filing a motion to com pel before attem pting in good faith to obtain the discovery through a m eet and confer session m ay result in a forfeiture of the right to receive reasonable expenses under Rule 37(a)(5)(A). See Frontier– Kem per Constructors, Inc. v . Elk Run Coal Co., Inc., 246 F.R.D. 522, 526 (S.D.W.Va.20 0 7) (“[T]he sanction for failing to m eet and confer is the denial of a request for expenses incurred in m aking a m otion, including attorney's fees.”) 8 In this case, Plaintiff’s counsel sent four letters regarding Defendant’s deficit discovery responses. The first letter was dated February 3, 20 14, the sam e day that J udge Cham bers stayed written discovery. Not surprisingly, nothing was done by either side to im m ediately follow-up that correspondence. The next letter was sent on May 8, 20 14. The letter identified itself as a “notice” to Defendant that its discovery answers were “seriously inadequate” and advised that a “failure to respond adequately” would “result in a m otion to com pel.” Although Plaintiff’s counsel included his telephone num ber if defense counsel wanted to speak with him , this letter does not com ply with the local rule. Plaintiff’s counsel was required to contact defense counsel and arrange a m eeting, or discuss the m atter by telephone. In any event, Defendant supplied additional m aterials after the May 8 correspondence, but again Plaintiff was not com pletely satisfied. Another letter was sent on May 22, 20 14 explaining why the supplem ental production was insufficient and advising that the rem ainder of the requested inform ation needed to be produced within five days or a m otion to com pel would be filed. On May 23, 20 14, defense counsel responded in writing. On Sunday, May 25, 20 14, Plaintiff’s counsel answered again by letter, noting that there appeared to be little room for com prom ise. Therefore, no m eet and confer was conducted, which generally is a prerequisite to reasonable expenses. Second, the com plicated course of the case provides a justification for som e of the discovery issues. With all of the am endments to the com plaint, the tweaking of the causes of action, the m otion to dism iss and subsequent dism issal of a substantial num ber of claim s, determ ining what was relevant and thus discoverable was som ething of a m oving target. In addition, the parties attem pted to negotiate a resolution of the rem aining claim s, which delayed the process. Taking all of these factors into 9 consideration, when a settlem ent could not be reached, both parties were justified in seeking guidance on discovery issues without fear of an award of reasonable expenses against them . Finally, under Rule 37(a)(5)(C), when a m otion to com pel is granted in part and denied in part, the court m ay apportion the award of reasonable expenses authorized under Rule 37(a)(5)(A). Here, the m otion to com pel was only partially granted. When com paring what additional discovery Defendant is com pelled to produce against that which Defendant is not com pelled to produce,2 the undersigned finds that neither party substantially bested the other. Accordingly, an award of reasonable expenses sim ply is not justified in this case. The Clerk is instructed to provide a copy of this Order to counsel of record. EN TERED : Decem ber 10 , 20 14 2 Although Rule 37(a)(5)(A) m easures a m ovant’s success based upon whether the requested discovery is provided after the m otion is filed, rather than what happens at a later-held hearing, due to the unusual tim e fram es in this case and the fact that a meet and confer did not occur until well after the m otion was filed, if at all, the undersigned can only look at what rem ained unproduced at the tim e of the hearing. 10
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