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)

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?