Choudhuri v. Wells Fargo Bank, N.A. et al

Filing 146

ORDER by Judge Kandis A. Westmore granting 138 Motion to Compel Deposition. (kawlc2, COURT STAFF) (Filed on 10/5/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

KABITA CHOUDHURI,
Plaintiff,

8

ORDER GRANTING MOTION TO
COMPEL DEPOSITION

v.

9
10

WELLS FARGO BANK, N.A., et al.,

Re: Dkt. No. 138

Defendants.

11
United States District Court
Northern District of California

Case No. 15-cv-03608-VC (KAW)

12
Plaintiff Kabita Choudhuri brought the instant suit against Defendant Wells Fargo Bank,

13
14

N.A., alleging violations of the Real Estate Settlement Procedures Act ("RESPA") and the

15

California Homeowner Bill of Rights ("HBOR"), as well as bringing claims of promissory

16

estoppel and breach of the implied covenant of good faith and fair dealing. (Second Amended

17

Compl. ("SAC"), Dkt. No. 74.)1 Plaintiff alleges that on January 13, 2016, Plaintiff had two calls

18

with Defendant, in which she "was assured that if there was a second income to support the

19

household, a loan modification would be approved." (SAC at 7.) A third-party, Ronjon Sen, was

20

present on the calls. (Id.)
Defendant now moves to compel the deposition of Mr. Sen. (Def.'s Mot., Dkt. No. 138.)

21
22
23
24

The Court previously deemed the matter suitable for disposition without hearing pursuant to Civil
Local Rule 7-1(b) and vacated the hearing set for October 5, 2017. (Dkt. No. 145.) Upon review
of the parties' filings, the Court GRANTS Defendants' motion to compel.

25
26
1

27
28

On January 25, 2017, the presiding judge dismissed all claims against Defendant Treena
Berlinsky with prejudice, and dismissed the claim for breach of the implied covenant of good faith
and fair dealing against both Defendants with prejudice. (Dkt. No. 92 at 2.)

I.

1

BACKGROUND

On April 18, 2017, Defendant retained Quest Discovery Services ("Quest") for the purpose
2
of serving Mr. Sen with a deposition subpoena for May 3, 2017. (Patao Decl. ¶ 2, Dkt. No. 1383
3.) On April 28, 2017, Quest's process server personally served Mr. Sen with the deposition
4
subpoena, but failed to report to his manager that service had been completed. (Patao Decl. ¶ 3.)
5
As a result, Quest erroneously informed Defendant's counsel on May 1 and May 2, 2017 that Mr.
6
Sen had not been served with the deposition subpoena. (Patao Decl. ¶ 4.)
7
On May 3, 2017, Mr. Sen presented himself for deposition. (Kelly Decl. ¶ 2, Dkt. No.
8
138-2.) Defendant's counsel asserts that based on Quest's representations, it believed Mr. Sen had
9
not been served, and had therefore not prepared for the deposition to proceed or retained a court
10
reporter. (Kelly Decl. ¶ 2.) Plaintiff alleges that Mr. Sen had previously contacted Defendant's
11
United States District Court
Northern District of California

counsel to reschedule the deposition, but was told that he would be sanctioned if he did not
12

appear.2 (Plf.'s Opp'n at 2, Dkt. No. 140.) Ultimately, Defendant's counsel informed Mr. Sen that

13
the deposition would not proceed and requested his contact information; Mr. Sen confirmed his
14
address, but would not provide a telephone number. (Kelly Decl. ¶¶ 2-3.)
15
On June 20, 2017, Defendant again retained Quest to serve Mr. Sen with the deposition
16
subpoena for August 22, 2017. (Patao Decl. ¶ 6.) Defendant also retained two private
17
investigators to perform service. (Vukovic Decl. ¶¶ 6, 8, Dkt. No. 138-1.) After multiple attempts
18
to serve and several stake-outs, the second private investigator served Mr. Sen with the deposition
19
subpoena on August 10, 2017. (Vukovic Decl. ¶ 9.)
20
On August 22, 2017, Mr. Sen did not appear for his deposition. (Vukovic Decl. ¶ 10.)
21
Defendant's counsel called the phone number on file for Mr. Sen, and was informed by a woman
22
they believe to be Mr. Sen's wife that Mr. Sen was ill and unable to take any calls. (Vukovic Decl.
23
¶ 11.) Defendant's counsel asserts that prior to this, Mr. Sen had never objected to his scheduled
24
deposition date or informed Defendant's counsel of his illness. (Vukovic Decl. ¶ 12.) Defendant's
25
counsel informed the woman that they wished to reschedule Mr. Sen's deposition and would
26
follow up. (Vukovic Decl. ¶ 11.) Following Mr. Sen's non-appearance, Defendant's counsel left
27
28

2

Plaintiff provides no evidence in support of this contention, such as a declaration by Mr. Sen.
2

1

multiple voicemails and sent multiple e-mails to Mr. Sen, requesting that he provide dates for his

2

deposition. (Vukovic Decl. ¶ 13.) Mr. Sen did not respond, and on August 30, 2017, Defendant

3

filed the instant motion.

4

On September 11, 2017, Plaintiff filed an opposition to Defendant's motion, arguing that

5

the motion was designed "to mislead this court into thinking that Mr. Sen is avoiding being

6

deposed." (Plf.'s Opp'n at 2.) Plaintiff further asserts that Mr. Sen had assured her "that he will

7

appear for a deposition at a date convenient to all parties." (Id.) Plaintiff therefore contends there

8

is no need for a hearing, and that the Court should deny the motion and order Defendant to

9

formally contact Plaintiff to set up a date for a deposition. (Id.) Mr. Sen, in turn, has not filed an

10

United States District Court
Northern District of California

11

opposition to the instant motion.
On September 20, 2017, Defendant filed its reply. (Def.'s Reply, Dkt. No. 142.)

12

Defendant states that despite having reached out multiple times to Mr. Sen, and after serving Mr.

13

Sen with the instant motion, as of the date of the reply brief, Mr. Sen still had not responded to any

14

of counsel's requests to reschedule his deposition. (Supp. Vukovic Decl. ¶ 2, Dkt. No. 142-1.)

15

II.

LEGAL STANDARD

16

Under Rule 26, in a civil action, a party may obtain discovery "regarding any non-

17

privileged matter that is relevant to any party's claim or defense and proportional to the needs of

18

the case considering the importance of the issues at stake in the action, the amount in controversy,

19

the parties' relative access to relevant information, the parties' resources, the importance of the

20

discovery in resolving the issues, and whether the burden or expense of the proposed discovery

21

outweighs its likely benefit." Fed. R. Civ. P. 26(b)(1). Additionally, the court must limit the

22

frequency or extent of discovery if it determines that: “(i) the discovery sought is unreasonably

23

cumulative or duplicative, or can be obtained from some other source that is more convenient, less

24

burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to

25

obtain the information by discovery in the action; or (iii) the proposed discovery is outside the

26

scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).

27
28

Federal Rule of Civil Procedure 45 governs discovery of non-parties by subpoena. Rule 45
provides, among other things, that a party may command a non-party to testify at a deposition.
3

1

Fed. R. Civ. P. 45(a)(1)(A)(iii). The scope of discovery through a Rule 45 subpoena is the same

2

as the scope of discovery permitted under Rule 26(b). Beaver Cty. Employers Ret. Fund v. Tile

3

Shop Holdings, Inc., No. 3:16-mc-80062-JSC, 2016 WL 3162218, at *2 (N.D. Cal. June 7, 2016)

4

(citing Fed. R. Civ. P. 45 Advisory Comm.'s Note (1970); Fed. R. Civ. P. 34(a)).

5

III.

DISCUSSION

As Defendant states, Mr. Sen is an important third-party witness, who can verify Plaintiff's

6

claim that Defendant promised her a loan modification if she obtained a second income. (Def.'s

8

Mot. at 7; see also SAC at 7.) Plaintiff does not dispute that Mr. Sen's deposition may be taken,

9

but instead argues that there is no need for the instant motion because Mr. Sen has assured her that

10

he will appear for a deposition at a date convenient to all parties. (Plf.'s Opp'n at 2.) Plaintiff also

11
United States District Court
Northern District of California

7

makes general complaints about how discovery has proceeded in this case, which are not relevant

12

to the merits of the instant motion.

13

In light of the above, the Court GRANTS Defendant's motion to compel. While Plaintiff

14

states that Mr. Sen has assured her that he will appear for a deposition, Defendant has presented

15

evidence that Mr. Sen has, in fact, not been cooperating with Defendant, having failed to respond

16

to Defendant's multiple attempts to reschedule the deposition. The Court therefore ORDERS Mr.

17

Sen to appear for his deposition; Mr. Sen shall immediately contact Defendant's counsel to set up a

18

deposition, at which he must attend.3 The Clerk of the Court is directed to serve this order on Mr.

19

Sen. Failure to comply may result in the Court issuing an order to show cause, requiring Mr. Sen

20

to explain why he should not be held in contempt of court.
IT IS SO ORDERED.

21
22

Dated: October 5, 2017
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

23
24
25
26
27
28

3

With respect to Plaintiff's contention that Defendant should have to formally contact Plaintiff to
set up the deposition, the Court disagrees. (See Plf.'s Opp'n at 2.) Plaintiff is not an attorney and
does not represent Mr. Sen, and has no authority to set up or refuse a deposition on behalf of Mr.
Sen. As a party, however, she may wish to attend Mr. Sen's deposition and should meet and
confer regarding a date that works for everyone.
4