Stanford v. Ocwen Federal Bank, FSB et al

Filing 46

ORDER signed by Magistrate Judge Gregory G. Hollows on 1/6/12 ORDERING that Defendants' MOTION TO COMEPEL, filed 12/8/11 41 is GRANTED. Plaintiff's deposition is scheduled for 1/26/12, at 9:00 a.m. in accordance with the deposition notice previously issued. Plaintiff is warned that failure to appear at this deposition, and failure to produce requested documents, will result in further sanctions, including the dismissal of his case and the possibility of contempt charges. Sanctions are imposed against plaintiff personally in the amount of $1,357.70, which plaintiff shall pay directly to defendants' counsel within twenty-eight days of this order. (Mena-Sanchez, L)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9

GREGG A. STANFORD,

10
11

Plaintiff,
vs.

CIV-S-10-1763-JAM GGH

12
OCWEN FEDERAL BANK, FSB, et al.,
13
Defendants.
14
15

ORDER
/

On January 5, 2012, the parties, by and through their counsel, were heard in

16

connection with a motion to compel discovery filed by defendants’ Ocwen Loan Servicing, LLC,

17

successor in interest to Ocwen Federal Bank, FSB, and Bank of America, National Association

18

as Successor by merger to LaSalle National Bank Association, as Trustee for the

19

Certificateholders of the Mortgage Pass-Through Certificates 1997-R2 (erroneously sued as

20

“Lasalle National Bank”). William Dunbar represented plaintiff. Chris Chapman appeared on

21

behalf of all defendants. After reviewing the joint statement and hearing oral argument, the court

22

issues the following order.

23

BACKGROUND

24

This action was originally filed in state court and removed to this court on July 8,

25

2010. After various motions, the case is proceeding on the second amended complaint, but only

26

on the breach of contract claim. Plaintiff alleges that defendants did not reduce the principal
1

1

balance on his home loan as agreed to in the contract for loan modification. Defendants point out

2

that plaintiff has not made a payment on his loan since December, 2006, and for this reason it is

3

apparent that plaintiff is in no hurry to prosecute this case.

4

DISCUSSION

5

Defendants contend that they have twice noticed plaintiff’s deposition, on October

6

13 and December 6, 2011,1 only to receive a phone call from plaintiff’s counsel the day before

7

the scheduled depositions, telling them that plaintiff had disappeared and could not be located.

8

Defendants state that plaintiff’s counsel has been cooperative; however, plaintiff himself has not

9

been responsive to his own counsel. Defendants seek an order setting plaintiff’s deposition for a

10

date certain within the next thirty days, and for him to produce documents requested in the

11

deposition notice. Defendants also seek sanctions in the amount of $1,927.90 in fees and

12

expenses for having to bring this motion.

13

Plaintiff’s counsel does not dispute defendants’ contentions or statements, but

14

responds only that he has now been able to contact plaintiff who is available for his deposition on

15

Jan. 4, 6, 11 through 13, 18 through 20, 26 and 27. At hearing, the date of January 26, 2012 was

16

selected for the deposition.

17

In regard to sanctions, the undersigned finds that plaintiff’s counsel’s actions are

18

beyond reproach. There is no evidence to suggest that counsel is acting in other than good faith

19

in this litigation, and counsel for defendant states nothing to the contrary. However, the actions

20

of plaintiff himself are another matter. Plaintiff’s actions in failing to appear at his deposition on

21

two occasions were not substantially justified. See Fed. R. Civ. P. 37(a)(5)(A). He becomes

22

unable to be contacted by his counsel for periods of time. When he is in contact with counsel, he

23

promises to appear for his deposition, and then, without legitimate explanation does not appear.

24

The facts before the undersigned suggest that plaintiff is purposefully stalling his own

25
26

1

Plaintiff had advised defendants that he was available for this date.
2

1

prosecution of this action for reasons of remaining in his house – payment free.

2

Therefore, defendants will be awarded the full fees for preparation of the motion,

3

but only half of the requested costs and fees associated with travel time to and from the hearing

4

as a telephone appearance was possible. Therefore, $1,357.70 in sanctions will be imposed

5

against plaintiff personally. This amount includes $450 in fees for preparation of the joint

6

statement, $675 in fees for preparation time and appearance at the hearing, $192.70 in airfare,

7

and $40 for taxi fare. Plaintiff is advised that failure to pay the sanctions within twenty-eight

8

days of the filed date of this order may result in further sanctions, including contempt of court

9

sanctions.

10

CONCLUSION

11

Accordingly, IT IS ORDERED that:

12

1. Defendants’ motion to compel, filed December 8, 2011, (dkt. no. 41), is

13

granted.

14

2. Plaintiff’s deposition is scheduled for January 26, 2012, at 9:00 a.m. in

15

accordance with the deposition notice previously issued. Plaintiff is warned that failure to appear

16

at this deposition, and failure to produce requested documents, will result in further sanctions,

17

including the dismissal of his case and the possibility of contempt charges.

18

3. Sanctions are imposed against plaintiff personally in the amount of $1,357.70,

19

which plaintiff shall pay directly to defendants’ counsel within twenty-eight days of this order.

20

DATED: January 6, 2012

21

/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

22
GGH/076

23

Stanford1763.dep.wpd

24
25
26
3