Schneider et al v. CitiMortgage, Inc. et al, No. 5:2013cv04094 - Document 433 (D. Kan. 2017)
Court Description: MEMORANDUM AND ORDER denying 392 Motion for Review; denying 396 Motion for Review & denying 421 Motion for Leave to File Under Seal. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 2/17/17. (msb)
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Schneider et al v. CitiMortgage, Inc. et al Doc. 433 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 This case com es before t he court on t he following m ot ions: Plaint iff Schneiders’ m ot ion for review ( Dk. 392) t he Magist rat e Judge’s Order of Oct ober 31, 2016, ( Dk. 390) ; Plaint iff Schneiders’ m ot ion for review ( Dk. 396) t he Magist rat e Judge’s Order of Novem ber 3, 2016, ( Dk. 391) ; and t he Plaint iffs’ m ot ion t o file exhibit s under seal ( Dk. 421) . Besides deciding t hese t hree m ot ions, t his order will reit erat e som e of t he Magist rat e Judge’s concerns over t he lack of cooperat ion in t his case. The case began when t he Schneiders’ 28- page com plaint filed in t he Dist rict Court of Jefferson, Count y, Kansas, in May of 2013, was rem oved by t he defendant s t o t his court on August 14, 2013. ( Dk. 1) . The defendant s t hereaft er filed a m ot ion t o dism iss which t his court grant ed and denied in part . The m agist rat e j udge has described correct ly t he plaint iffs’ claim s as involving Dockets.Justia.com “ t he defendant s’ alleged m isconduct in handling t he Schneiders’ resident ial m ort gage loan and t heir 2010 loan refinance” ( Dk. 390, p. 1) and as seeking relief for violat ions under t he Kansas Consum er Prot ect ion Act ( “ KCPA” ) and for breach of cont ract regarding int erest and overcharges wit hin t he fiveyear lim it at ions period ( Dk. 273, p. 2) . “ The Schneiders allege t hat t hey were wrongfully assessed overcharges and fees and were denied a loan refinance for which t hey were qualified.” ( Dk. 275, p. 1) . Before addressing t he pending m at t ers, t he dist rict court will m ake several observat ions. The docket report does not paint a favorable Rule 1 im pression of t his case. The Magist rat e Judge right fully expressed his frust rat ion ( Dk. 390, p. 2) wit h how all part ies have “ failed t o assist t he court in t he ‘j ust , speedy, and inexpensive’ disposit ion of t his case.” The Magist rat e Judge concluded his observat ions wit h t he hope t hat his “ order will put t his lit igat ion on a pat h t o a conclusion.” I d. The pending m ot ions show t hat hope t o be delayed. Neit her side should be pleased wit h t he st at e of t he record, and nor should t hey expect t o benefit from it . From t his point forward, t he dist rict court want s bot h sides t o realize t hat j oint effort s by all part ies will be expect ed t o im prove and will be account ed for as t his case m oves forward expedit iously. M OTI ON TO FI LE UN D ER SEAL ( D k . 4 2 1 ) The plaint iffs filed an earlier m ot ion seeking leave t o file cert ain discovery produced in Decem ber of 2016 as exhibit s under seal. ( Dk. 411) . 2 The dist rict court sum m arily denied t his m ot ion as insufficient on it s face t o m eet t he requirem ent s for sealing. ( Dk. 415) . The plaint iff now files a fourpage m ot ion and a nine- page m em orandum in support . ( Dks. 421 and 422) . Cit ing t he t erm s of t heir agreed prot ect ive order ( Dk. 54) , t he plaint iffs describe t hem selves as “ in a pickle” and request ing leave t o file under seal. 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. STAN D ARD S GOV ERN I N G REVI EW OF M AGI STRATE JUD GE ORD ER Rule 72 of t he Federal Rules of Civil Procedure allows a part y t o provide specific, writ t en obj ect ions t o a m agist rat e j udge's order. A m agist rat e j udge's order addressing non- disposit ive pret rial m at t ers is not reviewed de novo, but it is reviewed under t he m ore deferent ial st andard in which t he m oving part y m ust show t he order is “ clearly erroneous or cont rary t o t he law.” First Union Mort g. Corp. v. Sm it h, 229 F.3d 992, 995 ( 10t h Cir. 2000) ( quot ing Ocelot Oil Corp. v. Sparrow I ndust ries, 847 F.2d 1458, 1461- 62 ( 10t h Cir. 1988) ) ; see Fed. R. Civ. P. 72( a) . For fact ual findings, t he court applies t he clearly erroneous st andard which “ requires t hat t he reviewing court affirm unless it on t he ent ire evidence is left wit h 3 t he definit e and firm convict ion t hat a m ist ake has been com m it t ed.” See Ocelot Oil, 847 F.2d at 1464 ( cit at ion om it t ed) . For legal det erm inat ions, “ t he Court conduct s an independent review and det erm ines whet her t he m agist rat e j udge ruling is cont rary t o law.” I n re Mot or Fuel Tem perat ure Sales Pract ices Lit igat ion, 707 F. Supp. 2d 1145, 1148 ( D. Kan. 2010) ( cit at ions om it t ed) , int erlocut ory appeal dism issed, 641 F.3d 470 ( 10t h Cir. 2011) , cert . denied, 132 S. Ct . 1004 ( 2012) . “ Under t his st andard, t he Court conduct s a plenary review and m ay set aside t he m agist rat e j udge decision if it applied an incorrect legal st andard or failed t o consider an elem ent of t he applicable st andard.” I d. PLAI N TI FFS’ M OTI ON TO REVI EW ( D k . 3 9 2 ) The plaint iffs filed a seven- page m ot ion t o review ( Dk. 392) , t hen filed t wo- weeks’ lat er a 20- page m em orandum in support ( Dk. 402) , and finally filed t wo m ont hs’ lat er a 21- page reply m em orandum ( Dk. 416) . This t ypifies t he excessive and ext ended filings and briefing in t his case. Of not e is t hat t he m ovant s fail t o cit e t he st andards governing t heir m ot ion and t o argue a consist ent and proper applicat ion of t hem . I nst ead, t he plaint iffs’ m ot ion and m em oranda offers up headings and argues point s lacking coherency, organizat ion, cit at ions, references, and especially clarit y. To m ake plain t his point , court will address every separat e heading found in t his part icular m ot ion. 4 Wit h leave of t he court , t he plaint iffs were given addit ional t im e t o file a reply brief. The court ’s leave, however, did not aut horize t he plaint iffs t o argue m at t ers for t he first t im e in t heir reply brief. “ The general rule in t his circuit is t hat a part y waives issues and argum ent s raised for t he first t im e in a reply brief.” See Reedy v. Werholt z, 660 F.3d 1270, 1274 ( 10t h Cir. 2011) . The plaint iffs’ reply is t he first t im e t hey argue t hat new discovery produced in Decem ber of 2016 convinces t hem t hat t he defendant s have failed t o produce or ident ify ot her request ed discovery. This new discovery is t he subj ect of t he plaint iffs’ m ot ion t o file exhibit s under seal. ( Dk. 421) . Aft er reviewing t hese exhibit s and t he plaint iffs’ accom panying argum ent s, t he court will not suspend t he rule of waiver against argum ent s first raised in reply. From t his recent discovery, t he plaint iffs want t o argue inferences t hat t he defendant s have not provided com plet e and accurat e discovery responses t o dat e. What t he plaint iffs argue as inferences, however, does not appear t o put t he court in any bet t er “ posit ion t o det erm ine t he accuracy or com plet eness of t he inform at ion produced.” ( Magist rat e Judge’s Order, Dk. 390) . Nonet heless, should t he plaint iffs want t o m ake t his argum ent , it first m ust be m ade t o t he Magist rat e Judge who is m ost fam iliar wit h t he discovery and rulings t o dat e. The dist rict court is not in a posit ion now t o second- guess t he Magist rat e Judge’s original conclusion on whet her t his new discovery now put s t he court 5 in a posit ion t o det erm ine t his issue. Thus, t his court will not consider t he plaint iffs’ argum ent s based on discovery produced in Decem ber of 2016. “ Cit igroup’s Failure t o Appear at t he Not iced Deposit ion” ( Dk. 402, p.1) Under t his heading, t he plaint iffs argue t he “ Magist rat e [ Judge] clearly erred when finding t hat Plaint iffs were not ent it led t o relief because t he Defendant s had neit her com plied and com e t o deposit ions prepared for t he t opics not in disput e which would not have been cont rary t o t he Court ’s finding of t heir inst ruct ion t o t he Defendant s, nor had t hey m et t he aut om at ic st ay.” ( Dk. 402, p. 2) . The plaint iffs’ use of “ clear error” presum es a fact ual finding, but t heir m ot ion fails t o isolat e t his finding. The plaint iffs m ent ion pages 14 and 15 of t he Magist rat e Judge’s order which addressed Cit igroup’s m ot ion for prot ect ive order and t he plaint iffs’ obj ect ion t hat Cit igroup’s m ot ion was unt im ely. I n rej ect ing t he plaint iffs’ t im eliness obj ect ion, t he Magist rat e Judge first recognized “ t hat t his aspect of plaint iffs’ response is m oot because t he court direct ed t he part ies t o conduct t he deposit ions on t he t opics where agreem ent could be reached.” ( Dk. 390) . I n short , t he Magist rat e Judge first rej ect ed t he plaint iffs’ t im eliness argum ent as m oot , because he had direct ed t he deposit ions t o occur on t he agreed t opics. The Magist rat e Judge also denied t he t im eliness argum ent because a m ot ion for prot ect ive order under Fed. R. Civ. P. 26( c) is not subj ect t o t he filing requirem ent s of D. Kan. Rule 26.2( b) ( 2) . The plaint iffs do not show t he Magist rat e Judge’s reading and applicat ion of t his rule t o be wrong. I n short , 6 t he court has no basis for finding any error in t he Magist rat e Judge’s rulings at pages 14 and 15 of his order. “ Pat t ern & Repeat St rat egy t o Avoid Deposit ions” ( Dk. 402, p. 3) At page t hree of t heir m em orandum , t he plaint iffs em ploy t his sect ion t it le t o t hen label and at t ack as t act ical and dilat ory t he defendant s’ effort s t o narrow down t he scope of t he Rule 30( b) ( 6) deposit ion. ( Dk. 402, p. 3) . This t ypifies t he repeat ed finger point ing of blam e and of delay replet e in t his case. There is not hing under t his t it le t hat serves as a viable fact ual or legal argum ent or obj ect ion for review. “ Support for Response Opposing Cit igroup Prot ect ive Order” ( Dk. 402, p.3) Under t his heading, t he plaint iffs ram ble t hrough different filings, highlight isolat ed argum ent s, and crit icize general rulings wit hout an organizing t hem e and wit hout any clear direct ion on what t hey regard as error and why it would be error. The court presum es t he following rulings t o be in issue and t he following argum ent s t o be m ade. The Magist rat e Judge rej ect ed t he plaint iffs’ cont ent ion t hat Cit igroup’s discovery answers were not believable because t he “ t railing docum ent ” is proof t hat t heir loan was securit ized. The Magist rat e Judge first not ed t hat t his “ is a docum ent in which Cit iMort gage was t he cust odian.” ( Dk. 390, p. 4) . He t hen found t hat t he plaint iffs have “ no claim in t his case based upon t he securit izat ion of plaint iffs’ 2007 loan” and t hat t here was no “ im proper conduct by Cit igroup or t he ot her defendant s concerning t his 7 docum ent .” ( Dk. 390, p. 4) . Not hing present ed in t he plaint iffs’ obj ect ions point s t o any error in t his ruling, and t he court finds none. The plaint iffs also com plain t hat t he Magist rat e Judge kept t hem from deposing on t he new t opic of securit izat ion as a way of showing Cit igroup’s connect ion t o t heir loan t ransact ion. Before t he Magist rat e Judge, t he plaint iffs, however, “ acknowledged t hat t hese t opics are not for a new cause of act ion, but are designed t o “ ferret out ” a discovery violat ion by Cit igroup.” ( Dk. 390, p. 16) . Thus, t he Magist rat e Judge was not persuaded t hat “ t his was a proper use of discovery given t he allegat ions here” and concluded t hat t he t opics were not wit hin “ t he scope of t his lit igat ion.” I d. The plaint iffs’ changing reasons for adding yet anot her deposit ion t opic and t heir ongoing speculat ion over t he significance of t he t railing docum ent do not evidence any error in t he Magist rat e Judge’s rulings. The plaint iffs repeat t heir disagreem ent wit h t he Magist rat e Judge’s rulings on t he t im eliness of Cit igroup’s m ot ion for prot ect ive order. Repeat ing a disagreem ent wit hout showing an error in t he ruling accom plishes not hing. The plaint iffs’ argum ent s are wit hout m erit . “ Prim erica Deposit ions Did Not Occur As Agreed” ( Dk. 402, p. 7) The plaint iffs “ obj ect t o t he Magist rat e’s [ Judge’s] finding t hat t he ‘part ies’ m oved for m ediat ion.” I d. The plaint iffs do not provide a cit e t o t his finding in t he Magist rat e Judge’s order. The dist rict court found on page 10 of t he Magist rat e Judge’s order a finding t hat , “ [ o] n May 9, 2016, t he 8 court st ayed t he case aft er t he part ies sought m ediat ion.” ( Dk. 390, p. 10) ( it alics added) . This finding included a foot not e cit at ion t o t he Magist rat e Judge’s docket t ext ent ry order at Dk. 366 t hat expressly grant ed Dk. 358 which is t he “ Defendant s’ m ot ion for Order t o Mediat e.” The plaint iffs had opposed t he defendant s’ m ot ion ( Dk. 358) and even proposed alt ernat ive rulings and condit ion. ( Dk. 359) . The Magist rat e Judge’s lat er docket t ext ent ry order at Dk. 366, however, st at es: “ The part ies have scheduled a m ediat ion by agreem ent for 6/ 23/ 16.” There are no condit ions st at ed in t his docket t ext ent ry order regarding any deposit ion scheduled for May 10, 2016. The plaint iff never sought t im ely review of t hese Magist rat e Judge’s rulings. The court finds no error in t he Magist rat e Judge’s finding wit h cit at ion t hat t he part ies “ sought m ediat ion” ( Dk. 390, p. 10) , because it is consist ent wit h t he Magist rat e Judge’s earlier finding t hat t he part ies had “ scheduled a m ediat ion by agreem ent ” ( Dk. 366) . The plaint iffs next com plain t hat t he defendant s abandoned t heir earlier agreem ent s in obj ect ing t o cert ain deposit ion t opics. The plaint iffs do not provide accurat e docket cit at ions t o support t heir argum ent and do not dem onst rat e any subsequent error in t he Magist rat e Judge’s ruling. The plaint iffs conclude wit h a general plea for reinst at em ent of all deposit ion t opics based on t his unproved agreem ent and on t he disproved unt im eliness of t he defendant s’ m ot ion. A sufficient record has not been provided and cit ed for t his court t o find any error in t he Magist rat e Judge’s ruling. 9 “ Not only was Prim erica Unprepared But Sought St ay Lat e” ( Dk. 402, p. 9) The plaint iffs here again repeat t heir conclusory argum ent s about unt im eliness and t he m ediat ion agreem ent . The court rej ect s t hem again for t he reasons given above. “ The Court Errs When Failing t o Force Adm issions and Enforce Discovery Orders” ( Dk. 402, p. 10) . Under t his heading, “ t he plaint iffs obj ect and seek review relat ing t o t he error of fact and applicat ion of law t o enforcing t he orders on t he m ult iple m ot ions t o com pel.” ( Dk. 402, p. 10) . The plaint iffs, however, do not address any specific rulings and do not art iculat e t he errors in any rulings. I nst ead, t he plaint iffs generally com plain, “ [ t ] he Court errs when not being concerned wit h t he ‘qualit y’ of t he answer part icularly when Plaint iffs will have no chance t o hail Defendant s int o Court t herefore t hese answers are crit ical t o sum m ary j udgm ent and advancem ent of t he case.” I d. I n it s review, t his court is not charged wit h scrut inizing pages of rulings and fashioning argum ent s t o support t he plaint iffs’ posit ion t hat t he Magist rat e Judge disregarded how t he defendant s’ answers lacked qualit y. I ndeed, t he plaint iffs’ problem before t he Magist rat e Judge was lack of specificit y: As correct ly point ed out by defendant s, plaint iffs have failed t o specifically address each of t he aforem ent ioned request s. Rat her, plaint iffs have suggest ed t hat Cit igroup’s responses t hat it does not possess inform at ion responsive t o t he request s violat e t he court ’s prior order. The court does not agree. The court has reviewed t he answers m ade by Cit igroup and is persuaded t hat t hey adequat ely respond t o plaint iffs’ request s. I n t he prior order, t he court st at ed t hat only one 10 docum ent needed t o be produced if m ult iple defendant s possessed t he sam e docum ent . The court believes t hat t he defendant s have sufficient ly com plied wit h t his direct ive. ( Dk. 390, p. 4) . Not hing argued under t his heading or revealed in t his court ’s own review of t he Magist rat e Judge’s order shows t here t o be any error. ” Erroneous Finding There Was No Evidence That The Wit ness May Test ify Different ly When Denying Topic 1a” ( Dk. 402, p. 11) . The Magist rat e Judge’s order ident ifies Topic 1a: “ 362- 365 and t he m et hodology of and inform at ion sources used in preparing t he 2014 hand audit of t he t ransact ions on t he Randall and Am y Schneider m ort gage loan originat ed in Sept em ber 2007 wit h Cit icorp Trust Bank fsb, now known as Cit ibank, N.A.” ( Dk. 390, p. 10) . The defendant s opposed t he plaint iffs’ t aking t heir second deposit ion of Ms. Daust er- Adam s, t he corporat e represent at ive for Cit iMort gage, on t his t opic. According t o t he defendant s, t he plaint iffs deposed Ms. Daust er- Adam s for six hours in February of 2015. Ms. Daust er- Adam s “ gave line- by- line and figure- by- figure t est im ony t hat covered t he applicat ion of each paym ent m ade on plaint iffs’ loan.” I d. at pp. 11- 12. I n arguing t hat t hey want ed t o depose Ms. Daust er- Adam s again, t he plaint iffs argued in part , t hat , “ she m ay give different t est im ony or have ot her inform at ion as t he corporat e represent at ive.” I d. at p. 12. The Magist rat e Judge ruled: The court has undert aken a t horough exam inat ion of t hese issues. The court recognizes t hat plaint iffs should be allowed t o proceed wit h anot her deposit ion of Ms. Daust er- Adam s under Rule 30( b) ( 6) because 11 she has been designat ed as Cit iMort gage’s corporat e represent at ive. The court finds t hat t hese t opics were exhaust ively discussed by t he wit ness during her init ial deposit ion. Plaint iff relies upon speculat ion t o suggest t hat she m ight offer different evidence at t his deposit ion. Wit hout any valid basis for addit ional t est im ony, t he court shall grant t his aspect of defendant ’s m ot ion and quash t hese t opics. ( Dk. 390, p. 12) . The plaint iffs now argue t hat Ms. Daust er- Adam s in a subsequent deposit ion t est ified different ly and t hat t he plaint iffs were denied t he opport unit y t o exam ine her at t his lat er deposit ion about t he hand audit . Under t his heading, t he plaint iffs point t o and present no specific t est im ony of record in support of t heir argum ent . The court finds not hing t o cont radict t he Magist rat e Judge’s findings t hat t his t opic was exhaust ively covered in t he init ial deposit ion t hat t he plaint iffs offered only speculat ion on t he likelihood of Ms. Daust er- Adam t est ifying different ly at a t hird deposit ion. The plaint iffs fail t o show error here. “ Taking The Word of Defendant s’ Counsel Regarding Topic 1A and Ms. Adam s I m peachm ent ” ( Dk. 402, p. 12) Under t his new heading, t he plaint iffs obj ect t hat t he Magist rat e Judge’s ruling is in error, because Ms. Daust er- Adam s did not t est ify line by line t hrough t he loan hist ory. I d. The plaint iffs refer generally t o exhibit s at t ached t o t heir m ot ion for leave t o file a sur- reply which was filed April 22, 2016, as docket ent ry 352. They say t hese excerpt s “ dem onst rat [ e] t he inconsist ent t est im ony.” ( Dk. 402, p. 13) . The plaint iffs do not cit e or single out what t hey regard as inconsist encies in t hese 75 pages of deposit ion 12 excerpt s. While t he plaint iffs are bold t o argue t hat , “ [ t ] hese docum ent s should have weight and dem onst rat e t he original t est im ony of Ms. Adam s as quest ionably inconsist ent wit h t he fact s,” ( Dk. 402, p. 13) , t he court is given not hing specific t o support t hese argum ent s. I t is not t he court ’s dut y t o scour t he record for evidence and t hen t o fashion t he argum ent t o support t he plaint iffs’ posit ion. More im port ant ly, t he plaint iffs were denied leave t o file t his sur- reply and never sought review of t he Magist rat e Judge’s ruling. ( Dk. 357) . The plaint iffs’ present m ot ion does not aut horize t his court ’s review of earlier orders which properly enforced t he court ’s rules for filing a sur- reply. The plaint iffs also com plain t hat t he defendant s’ answers t o t he request s for adm issions are generally deficient . I n addressing t he plaint iffs’ obj ect ions, t he Magist rat e Judge observed: Plaint iffs raise a variet y of concerns about t he responses m ade by t he defendant s. The m ot ion is not easy t o evaluat e or underst and due t o t he nat ure of t he argum ent s. Plaint iffs have at t ached a list of exhibit s t o t heir m ot ion, and t hey refer t o t he num ber cont ained on t his list in t heir m ot ion. However, t he exhibit s at t ached t o t he m ot ion do not correspond t o t his list . This circum st ance has provided t he court wit h an im possible t ask in considering t he plaint iffs’ argum ent s. The court shall focus only on t he discovery specifically argued by plaint iffs rat her t han t he generalized obj ect ions m ade by plaint iffs. I t is apparent t hat plaint iffs are not enam ored wit h som e of t he defendant s’ answers, but t he court is only concerned whet her t he answers are in accord wit h discovery requirem ent s. ( Dk. 390, p. 3) . The Magist rat e Judge t hen looked at t he plaint iffs’ specific obj ect ions and found t hat defendant s’ responses were not insufficient or 13 inadequat e. ( Dk. 390, pp. 5- 8) . The court finds no error in any of t he Magist rat e Judge’s findings or rulings. “ The Erroneous Finding of a Violat ion of Court Order by Plaint iffs’ Counsel” Dk. 402, p. 14 The plaint iffs do not specifically locat e and cit e t his finding in t he Magist rat e Judge’s order. The plaint iffs argue t hey did not violat e a Magist rat e Judge’s order, because “ t he Order did not st at e what is now found t o be in violat ion.” ( Dk. 402, p. 15) . The Magist rat e Judge’s order on review reads: The Court t urns t o Cit igroup’s cont ent ion t hat Topics 29, 51, 51B, and 52- 61 should be quashed because t hey were present ed t o Cit igroup in violat ion of t he court ’s order of January 28, 2016. The court agrees. I n t he prior order, t he court direct ed plaint iffs t o narrowly t ailor t heir not ice in order t o com ply wit h Rule 30( b) ( 6) ’s requirem ent t hat t he t opics be described wit h “ reasonable part icularit y.” The court t hen ordered t he part ies t o confer aft er plaint iffs’ revised t heir t opics. The part ies conferred t wice for approxim at ely six hours and no m ent ion was m ade of t he new t opics. The new t opics were served upon Cit igroup following t he conferences. The court did not ant icipat e t he inclusion of new t opics when it ent ered it s prior order. The court believed t hat t he t opics previously present ed by plaint iffs needed t o be revised and am ended t o com ply wit h Rule 30( b) ( 6) . The inclusion of addit ional t opics is a violat ion of t he court ’s order and t hese t opics shall be quashed. . . . These t opics exceed t he scope of t his lit igat ion and should also be quashed for t hat reason. ( Dk. 390, p. 16) . The plaint iffs com plain t hat t hey should not be found t o have violat ed an order unless t hey act ually violat e one of it s express t erm s. As here quot ed, t he Magist rat e Judge explained t hat his order operat ed on t he prem ise t hat t he plaint iffs’ t opics were est ablished and t hat t he plaint iff now needed t o m eet t he requirem ent of st at ing and revising t hose t opics 14 wit h reasonable part icularit y. The Magist rat e Judge also required t he part ies t o confer in t his regard, and t here was no discussion of possible new t opics. The plaint iffs’ addit ion of new t opics aft er t he conferences had cert ainly violat ed t he spirit and operat ing prem ises behind t he Magist rat e Judge’s order of January 28, 2016, Dk. 275. The court finds no error in t his finding of a violat ion. “ The Magist rat e’s [ Judge’s] Finding That The Plaint iffs Are Disingenuous I s Unsupport ed” Dk. 402, p. 16 Again, t he plaint iffs do not specifically cit e t his finding in t he Magist rat e Judge’s order t hat is being reviewed on t his m ot ion. The court ’s com put er has scanned t he Magist rat e Judge’s Order ( Dk. 390) and has not found any m at ches for “ disingenuous.” The court does not know what finding is t he subj ect of t his obj ect ion. The plaint iffs generally com plain about t he financial hardships in pursuing t his lit igat ion, about t he lack of hearings and oral argum ent s on t heir present at ions, about t he defendant s’ “ piecem ealed discovery,” about t heir need t o have t he court allow t hem discovery and t o t ax t he cost s against t he defendant s, and about not having “ a clean adm ission as t o overcharges” from t he defendant s. The court will adopt all of t he Magist rat e Judge’s com m ent s on t he part ies’ and counsels’ lack of cooperat ion in discovery. The Magist rat e Judge’s expressed frust rat ion wit h t his case is fully support ed by t he age of t his case, as well as, by t he num ber, nat ure and lengt h of t he docket ed filings. The dist rict court com m ends t he Magist rat e Judge for his expert ise 15 and devot ion in supervising discovery in t his case. He has exercised great pat ience and innovat ion in t rying t o im prove cooperat ion bet ween t he sides. He has conduct ed num erous conferences. He has even inst ruct ed counsel on discovery rules and how t o com ply wit h t hem . He has ruled fairly on t he issues and ruled repeat edly on t he sam e issues. He has adm onished counsel on bot h sides and even sanct ioned t he defendant s. What ever t he plaint iffs’ concerns wit h t he Magist rat e Judge’s handling of t his case t o dat e, t he court regards t hem as devoid of m erit . “ Case Should Be Decided On The Merit s And Not Procedural Rules” Dk. 402, p. 18 The plaint iffs end t heir m ot ion on t he sam e refrain t hat t he defendant s have ut ilized all t he rules t o creat e delay, generat e m ot ions, and avoid discovery and t hat “ t he rules were st ret ched t oo far.” I d. at 19. The court finds not hing in t he Magist rat e Judge’s order t hat shows he overlooked im proper conduct or st ret ched t he rules t oo far. The plaint iffs’ m ot ion t o review is denied. PLAI N TI FFS’ M OTI ON TO REVI EW ( D k . 3 9 6 ) I n an order filed Novem ber 3, 2016, ( Dk. 391) , t he Magist rat e Judge denied t he plaint iffs’ second m ot ion ( Dk. 380) asking for leave t o file first am endm ent of com plaint . The Magist rat e Judge’s order recount s his earlier decision denying t he plaint iffs’ first m ot ion for leave: This case was filed in st at e court on May 24, 2013. I t was rem oved t o t his court by t he defendant s on August 14, 2013. The court held a Scheduling Conference on April 9, 2014. At t hat t im e, t he part ies agreed t o April 30, 2014 as t he deadline for m ot ions t o am end, 16 and t he court im posed t hat deadline. On April 16, 2015, plaint iffs first sought t o am end t heir com plaint . Alt hough ot her deadlines had been ext ended, t he deadline for m ot ions t o am end had not been ext ended. On January 28, 2016, t he court denied plaint iffs’ m ot ion t o am end as unt im ely. The court not ed t hat plaint iffs had not filed t heir m ot ion t o am end unt il nearly a year aft er t he applicable deadline and nearly t wo m ont hs aft er t he event t hey claim inform ed t hem of t he fact s underlying t he proposed am endm ent . Dk. 391, p. 1) . The plaint iffs filed t heir second m ot ion t o am end on August 1, 2016, seeking t o add a count VI I , “ Mort gage Fraud by Concealm ent of Lack of Servicing Soft ware, Alt ernat ively Negligence, New Conduct in 20142015 in furt herance of t he Newly Discovered Fraud April 26, 2016.” ( Dk. 381- 8, p. 40) . The plaint iffs argued t hat t his new count arose from newly discovered evidence, t hat is, t he Rule 30( b) ( 6) deposit ion t est im ony of David Cham bers t aken on April 26, 2016. Mr. Cham bers t est ified t hat Cit iMorgage lacked t he abilit y t o service bi- weekly sim ple int erest daily loans because t heir soft ware servicing syst em did not support bi- weekly and t hat t his required som e m anual repost ing of paym ent s. To t he Magist rat e Judge, t he plaint iffs “ suggest [ ed] t hat t hey could not have sought t his am endm ent at an earlier t im e because of defendant s’ effort s t o resist discovery in t his case.” ( Dk. 391, p. 2) . The Magist rat e Judge correct ly recognized t he t wo- st ep approach applicable when a m oving part y seeks t o am end aft er t he scheduling order deadline. “ Aft er a scheduling order deadline, a part y seeking leave t o am end m ust dem onst rat e ( 1) good cause for seeking m odificat ion under Fed. R. Civ. P. 16( b) ( 4) and ( 2) sat isfact ion of t he Rule 15( a) st andard.” Gorsuch, 17 Lt d., B.C. v. Wells Fargo Nat . Bank Ass’n, 771 F.3d 1230, 1240 ( 10t h Cir. 2014) ( “ We now hold t hat part ies seeking t o am end t heir com plaint s aft er a scheduling order deadline m ust est ablish good cause for doing so.” ) . The Magist rat e Judge correct ly sum m arized t he st andards governing t he t wo st eps. The Magist rat e Judge set out t he following as t he legal st andard governing Rule 16( b) ( 4) : Rule 16( b) ( 4) st at es t hat t he scheduling order “ m ay be m odified only for good cause and wit h t he j udge’s consent .” “ The good cause st andard prim arily considers t he diligence of t he part y seeking t he am endm ent .” The part y m oving t o am end “ m ust show t hat despit e due diligence it could not have reasonably m et t he scheduled deadlines.” “ Carelessness is not com pat ible wit h a finding of diligence and offers no reason for a grant of relief.” “ [ L] ack of prej udice t o t he nonm ovant does not show ’good cause.’” “ The part y seeking an ext ension is norm ally expect ed t o show good fait h on it s part and som e reasonable basis for not m eet ing t he deadline.” I f t he m oving part y m eet s t he Rule 16( b) ( 4) good cause st andard, t he court considers Fed. R. Civ. P. 15. ( Dk. 391, p. 3) . The Magist rat e Judge succinct ly held: I n num erous orders in t his case, t he court has det erm ined t hat t he delays t hat have occurred in discovery were t he responsibilit y of bot h sides. I n t he recent order of Oct ober 31, 2015, t he court specifically det erm ined t hat t he delay in t he t aking of t he Rule 30( b) ( 6) deposit ions was caused by all part ies. The court fails t o find good cause t o allow plaint iffs an ext ension of t he deadline for filing m ot ions t o am end. As t he court st at ed in it s order of January 28, 2016, “ [ i] t is disingenuous for t he Schneiders t o suggest t hat defendant s’ delay is t he sole cause for t heir failure t o m eet t he deadline for m ot ions t o am end.” Moreover, plaint iffs wait ed at least t hree weeks t o file t his m ot ion aft er t he st ay was lift ed on July 7, 2016. I n accord wit h t he court ’s prior ruling, t he court finds t hat plaint iffs have not shown good cause t o ext end t he scheduling order under Rule 16( b) ( 4) . Plaint iffs’ m ot ion for leave t o am end t he com plaint m ust be denied as unt im ely. ( Dk. 391, p. 4) . 18 On review , t he plaint iffs first argue t hat t he Magist rat e Judge failed t o follow t he st andard of freely grant ing leave t o am end. This st andard is one of t he Rule 15( a) considerat ions which a court “ need not reach” when t he m ovant lacks good cause t o am end aft er t he scheduling order deadline. Gorsuch, Lt d., B.C. v. Wells Fargo Nat . Bank Ass’n, 771 F.3d at 1240. I nt erest ingly, t he plaint iffs deny t here is a current scheduling order. The plaint iffs repeat t heir com plaint s over t he defendant s’ effort s at delaying and wit hholding discovery. The plaint iffs at t ribut e t he delay in seeking leave t o t heir counsel’s work on ot her m at t ers pending in t his case. The plaint iffs say t heir m ot ion is t im ely as it w as filed less t han a m ont h aft er t he st ay ended. Finally, t he plaint iffs call on t he court t o recognize t heir prevailing policy int erest in uncovering fraud and in prevent ing fraud on t he court . The Magist rat e Judge’s sum m ary and applicat ion of t he governing Rule 16( b) ( 4) st andard on “ good cause” was not cont rary t o t he law. The scheduling order’s deadline for m ot ions t o am end has passed, and, t herefore, t he plaint iffs first m ust show good cause t o ext end. Aft er reviewing t he plaint iffs’ argum ent s and evidence for “ good cause,” t his court is not left wit h t he definit e and firm convict ion t hat t he Magist rat e Judge has m ade a m ist ake in denying t his am endm ent . The court accept s t he Magist rat e Judge’s finding st ands t hat t he plaint iffs are “ disingenuous” for suggest ing “ t hat defendant s’ delay is t he sole cause for t heir failure t o m eet t he deadline for m ot ions t o am end.” ( Dk. 391, p. 4) . I t is fully consist ent 19 wit h what t his court has learned from it s own review of t he docket . The record also shows t hat t he plaint iffs did wait at least t hree weeks aft er t he st ay was lift ed before filing t he m ot ion t o am end. As for t he plaint iffs’ policy argum ent s against allowing fraud on t he court , t here is not hing here but speculat ion wit hout subst ance. The plaint iffs’ m ot ion t o review is denied. I T I S THEREFORE ORDERED t hat t he Plaint iff Schneiders’ m ot ion for review ( Dk. 392) t he Magist rat e Judge’s Order of Oct ober 31, 2016, ( Dk. 390) , t he Plaint iff Schneiders’ m ot ion for review ( Dk. 396) t he Magist rat e Judge’s Order of Novem ber 3, 2016, ( Dk. 391) , and t he Plaint iffs’ m ot ion t o file exhibit s under seal ( Dk. 421) are denied. Dat ed t his 17t h day of February, 2017 at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 20
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