Schneider v. Bank of America N.A et al

Filing 230

ORDER signed by Judge John A. Mendez on 8/31/2015 ORDERING 224 Defendant's Motion to Dismiss is DENIED. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER D. SCHNEIDER,

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2:11-cv-02953-JAM-EFB

Plaintiff,

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No.

v.

ORDER DENYING DEFENDANT’S MOTION
TO DISMISS

BANK OF AMERICA, N.A.; FHLMC
LBAC 173 a.k.a. FEDERAL HOME
LOAN MORTGAGE CORPORATION
(FREDDIE MAC); BAC HOME LOANS
SERVICING LP; BALBOA
INSURANCE CO.; BANK OF
AMERICA MORTGAGE; QUALITY
LOAN SERVICES CORP.; HOME
RETENTION GROUP; and DOES 240,

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Defendants.
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Defendant Quality Loan Services Corporation (“Quality” or

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“Defendant”) seeks to dismiss Christopher D. Schneider’s

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(“Plaintiff”) complaint because of his alleged failure to comply

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with an order compelling discovery.

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because Plaintiff has adequately complied and Defendant has not

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The Court denies the motion

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suffered prejudice. 1

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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiff alleges that Defendant Quality, in concert with

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other defendant institutions (collectively, “Defendants”),

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created an “improper and involuntary escrow account” on

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Plaintiff’s property, and compelled Plaintiff to enter an

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insurance agreement for which Defendants received “improper

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kickbacks” from the insurance company.

SAC ¶¶ 28-29.

Defendant

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Quality is represented by Attorney Matthew Bryan Learned.

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Attorney Alison Valerie Lippa represents all other defendants

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(“co-Defendants”).

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For almost a year, the parties have been embroiled in

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discovery disputes.

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compel Plaintiff’s compliance with discovery (Doc. #206).

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defendants represented by Attorney Lippa subsequently moved to

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dismiss the case with prejudice for Plaintiff’s failure to

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comply with that order (Doc. #207).

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voluntarily dismissed on the basis that Plaintiff had complied

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with discovery (Doc. #225).

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dismissal, Defendant Quality filed a similar motion to dismiss,

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which is presently before this Court (Doc. #224).

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opposes the motion (Doc. #227).

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Recently, Defendants secured an order to
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That motion has since been

One day before that motion’s

Plaintiff

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for September 2, 2015.
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II.

OPINION

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A.

Legal Standard

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Federal Rule of Civil Procedure 41(b) allows the Court to

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dismiss a case where a plaintiff fails to “comply with . . . a

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court order[.]”

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may “dismiss[] [an] action or proceeding in whole or in part”

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for defiance of a discovery order.

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Dismissal under either rule is subject to the Court’s

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discretion.

In addition, Rule 37(b) specifies that a court

Fed. R. Civ. P. 37(b)(2)(A).

In re Exxon Valdez, 102 F.3d 429, 432 (9th Cir.

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1996); Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th

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Cir. 1991).

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noncompliance has caused prejudice to the moving party.

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v. Transportacion Maritima Mexicana, S. A., 662 F.2d 1275, 1279

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(9th Cir. 1980); Banga v. Experian Info. Solutions, 2009 WL

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2407419, at *1 (N.D. Cal. Aug. 4, 2009).

A key consideration under both rules is whether the

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B.

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Nealey

Analysis

Defendant urges the Court to dismiss this case for

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Plaintiff’s failure to comply with the May 13, 2015 discovery

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order.

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responses to interrogatories, to produce documents in response

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to requests for production, and to appear for deposition.

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Discovery Order (Doc. #206) at 2.

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between June 26, 2015 and the date of filing his opposition

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(August 18, 2015), he has complied with discovery and has now

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“turned over every [responsive] document is his possession[.]”

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Opp. at 2:6; Yesk Decl. at 2.

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for deposition on July 28 and August 3, at which time Defendant

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Quality’s counsel was present.

Mot. at 3.

That order required Plaintiff to serve

Plaintiff contends that

He also states that he appeared

Opp. at 1-2; Yesk Decl. at 2.
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Defendant concedes in its reply that Plaintiff in fact

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appeared for deposition.

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representations about his compliance are also bolstered by co-

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Defendants’ notice to the Court – filed one day after

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Defendant’s present motion – stating that Plaintiff produced

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documents and appeared for deposition.

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Bank of America N.A.’s Notice of Plaintiff’s Compliance (Doc.

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#225).

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Reply at 3.

Plaintiff’s

See generally Defendant

Defendant protests that even if Plaintiff produced

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documents to Bank of America, he never produced those documents

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to Quality.

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it has access to the discovery documents produced to Bank of

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America.

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material” were not “organize[d] and label[ed.]”).

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Reply at 3.

But Defendant appears to concede that

See id. (complaining that these “749 pages of

Thus, even if these documents were not produced directly to

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Quality, they were produced to co-Defendants’ counsel and

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Defendant Quality has access to them.

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persuaded that Defendant suffered prejudice by the

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unavailability of these documents when they were in fact

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available.

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because the deadline to file dispositive motions is fast

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approaching: September 16, 2015.

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believes it requires more time to prepare and file a dispositive

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motion, it may petition the Court to amend the scheduling order.

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The Court is not

Defendant further argues that it has been prejudiced

Reply at 2.

If Defendant

The Court declines to issue the severe sanction of

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dismissal in this case.

Defendant has not demonstrated

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Plaintiff’s noncompliance.

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Enterprises, Inc., 792 F.2d 906, 911 (9th Cir. 1986) (“[T]he

See United States v. Nat’l Med.

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district judge is best equipped to assess the circumstances of

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the noncompliance.”).

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sworn declaration, representations by co-Defendants, as well as

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Defendant Quality’s own concessions, indicate that Plaintiff is

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in compliance.

To the contrary, Plaintiff’s attorney’s

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III.

ORDER

For the reasons set forth above, the Court DENIES
Defendant’s motion to dismiss.

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IT IS SO ORDERED.

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Dated: August 31, 2015

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