Ford et al v. CitiMortgage Inc
ORDER: Joint report on discovery disputes, 44 , addressed. Motion to extend, 52 , granted as modified. Motion to amend, 47 , granted in part and denied in part. Conforming amended complaint due by 6 May 2016. The sooner the better. Signed by Judge D. P. Marshall Jr. on 4/19/2016. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PAUL FORD and ANN FORD, for
Themselves and all Arkansas
Residents Similarly Situated
1. Joint status report, Ng 48-1, noted. Joint report on discovery disputes,
Ng 44, also noted. Here are the Court's rulings.
• CitiMortgage's Initial Disclosures
By 6 May 2016 CitiMortgage must identify by name specific individuals
with knowledge- both its own folks and someone from Wilson & Associates.
If former employees were involved, CitiMortgage must also provide the last
known contact information.
• Fords' Interrogatories No. 1 & 2 and Request for Production No. 1
The parties have resolved this dispute. Ng 48-1.
• Fords' Interrogatory No. 4 and Request for Production No. 2
CitiMortgage' s production for Wilson & Associates was fine. The Court
understands CitiMortgage' s concerns about customer privacy. But there is a
comprehensive protective order in place. Names of other borrowers do not
seem essential at this point-they can be identified by number or letter. What
the Fords need to know now, however, is whether a foreclosure action was
filed against any of these 100 or so other borrowers and, if not, whether any
unincurred foreclosure-related fees were refunded. To the extent
CitiMortgage has not already answered these questions on a borrower-byborrower basis (but without names), it must do so by 6 May 2016.
• Interrogatory No. 6
It's clear as propounded. CitiMortgage must answer by 6 May 2016.
• Fords' Motion to Extend Expert Deadlines
This motion, NQ 52, is granted as modified. Because of discovery static,
the Fords haven't had adequate time to evaluate whether to get an expert.
The transaction history, NQ 52-2, is less than clear on its face; an expert may
be helpful in explaining it. For these reasons, good cause exists to modify the
Final Scheduling Order slightly. All the remaining pretrial deadlines are
extended by approximately thirty days, as follows: Fords' expert materials
due by 16 May 2016; CitiMortgage's expert materials due by 17 June 2016;
any rebuttal expert materials due by 1 July 2016; discovery ends, and joint
status report due, on 5 August 2016; and all motions due by 2 September
2016. The parties should block out now time in July for potential expert
2. Some of the Fords' proposed changes in their complaint are fine;
others are not. The clean-up amendments, which recast allegations in terms
of the federal rules, are helpful. The preservation footnote on the rejected
Arkansas Deceptive Trade Practices Act claim is prudent. The Court declines,
though, to allow the requested amendments that would expand the proposed
class beyond Arkansawyers who dealt with Wilson & Associates as
CitiMortgage' s agent.
CitiMortgage' s standing attack is misplaced, as is most of its effort to
litigate the Rule 23 question now.
Leave to amend should be freely granted when justice requires it, FED.
R. Crv. P. 15(a)(2), but prejudice to the defendant must be weighed. Julianello
v. K-V Pharmaceutical Company, 791 F.3d 915, 922 (8th Cir. 2015). The Fords'
proposed expansion of the class to a nationwide group would subject
CitiMortgage to a big discovery burden. This case is almost two years old.
Discovery hasn't been smooth-see the earlier parts of this Order. We're on
track for motions in the fall and trial next February. Expanding the proposed
class to cover people in every other state, or even in those states that allow
non-judicial foreclosures, would transform this case. The parties would have
to start almost from scratch. Doing so would not promote the just, speedy,
and inexpensive resolution of the parties' dispute. FED. R. C1v. P. 1.
While it's not certain that the Fords' expansion of the class would be
futile, the proposed supporting allegations are thin. There are no particulars
alleged about CitiMortgage doing non-judicial foreclosure business in
Arkansas through entities other than Wilson & Associates. There are no
particulars alleged about CitiMortgage' s non-judicial foreclosure practices in
other states. While similar business methods are possible, of course, the Fords
haven't alleged enough facts to state plausible claims for a broader proposed
class. Which brings things back to the burden on CitiMortgage: the Fords'
proposed new complaint is just not adequate to justify the scope of discovery
this new pleading would prompt if allowed. CitiMortgage is right on one
futility point: the law of unjust enrichment and conversion varies across the
several states. Twenty-something subclasses to deal with those variations
would just be twenty-something lawsuits, albeit in one place. In re St. Jude
Medical, Inc., 425F.3d1116, 1120 (8th Cir. 2005); Tylerv. Alltel Corporation, 265
F.R.D. 415, 422-23 (E.D. Ark. 2010). In the circumstances, some clean up is
needed, but the vast expansion of this case is not.
Joint report on discovery disputes, NQ 44, addressed. Motion to extend,
NQ 52, granted as modified. Motion to amend, NQ 47, granted in part and
denied in part. Conforming amended complaint due by 6 May 2016. The
sooner the better.
D.P. Marshall Jr.
United States District Judge
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