DB Private Wealth Mortgage v. Marty, No. 2:2009cv00887 - Document 74 (D. Utah 2009)
Court Description: MEMORANDUM DECISION- granting 60 Motion for Protective Order. SO ORDERED. Signed by Judge David Sam on 12/15/09. (jmr)
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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT O~D\~~ r'p Ri Ij 1 " , """'" '" <; < V·.J ¢ \ CENTRAL DIVISION \0 A\0 28 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * leUQ DB PRIVATE WEALTH MORTGAGE LTD., ) Plaintiff, Case No. 2:09CV887.DS ) v. MEMORANDUM DECISION ) JUSTIN MARTY, ) Defendant. ) DB PRIVATE WEALTH MORTGAGE LTD., ) Plaintiff, ) v. ) JUSTIN MARTY, ) Defendant Case No. 2:09CV999 (Consolidated) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * INTRODUCTION Defendant Justin Marty served a notice for the deposition of Priscilla Newberry on December 2,2009 and a request for production of documents to be produced 12 days after service. DB Mortgage objected and filed a Motion for Protective Order on two grounds: (1) The discovery is a pure fishing expedition with no basis whatsoever to justify it, and (2) the disc very violates the Federal Rules of Civil Procedure in that it is not timely and Mr. Marty has not followed any of the requirements under the Rules for expedited discovery. The Court agree with DB Mortgage that this request for discovery is improper and that it will waste time and resources, and is unsupported by any credible argument or evidence. The Court therefore gr ts Plaintiffs Motion for Protective Order. ANALYSIS Mr. Marty has not produced any evidence to support his position. He merely specula s that because some "real estate notes are securitized in modem practice," this Note must have been securitized. DB Mortgage, on the other hand, has provided an affidavit of Ms. Newbe testifYing to the fact that DB Mortgage is and always has been the holder of the Note and has never "sold, transferred, assigned, syndicated, or securitized" the Note. On Tuesday, Decem er 1,2009, DB Mortgage produced the original note for inspection, and Mr. Marty's counsel m de a thirty-minute inspection of it. Now Mr. Marty is implying that the inspection was insufficie because "[c]opies having the appearance of originals are readily obtained." This argument is baseless and is totally unsupported by any credible argument or evidence. It is also important to note that Mr. Marty's discovery requests violate the Federal Ru~es of Civil Procedure. Rule 26(d)(I) provides that "a party may not seek discovery from any so ce before the parties have conferred as required by Rule 26(f)." The parties in this case have n conferred, so discovery is premature. Mr. Marty claims that Rule 26(f)'s requirement that the parties confer "as soon as practicable" must be interpreted in conjunction with Rule 56. He argues that because DB Mortgage filed a Motion for Summary Judgment, it cannot insist upon strict adherence to th rules of civil procedure "while withholding essential discovery." (Opp. p. 2) Rule 56(f) provides that "[i]f a party opposing the motion shows by affidavit that, for specified reasons, it I cannot present facts essential to justifY its opposition," the court may allow deposition or ot ¢ r 2 discovery. The party sUbmitting the Rule 56(f) affidavit must identify the probable facts not available and what steps have been taken to obtain these facts. Mr. Marty has not filed a Rul! 56(f) affidavit, nor has he demonstrated that he could satisfy its specificity requirements. Mr. Marty claims that DB Mortgage violated the Real Estate Settlement Procedures ct ("RESPA") by failing to produce documents pursuant to Mr. Marty's demands. RESPA is inapplicable because its provisions do not "affect the validity or enforceability of any ... loa , loan agreement, mortgage, or lien made or arising in connection with a federally related mo gage loan." 12 U.S.C. 2615. Furthermore, DB Mortgage has now produced the original Note for inspection, so even ifRESPA applies, DB Mortgage has satisfied it. CONCLUSION For the foregoing reasons, DB Mortgage's Motion for Protective Order is granted. SO ORDERED. DATED this BY THE COURT: DAVID SAM SENIOR JUDGE UNITED STATES DISTRICT COUR 3
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