Llewellyn v. Shearson Financial Network, Inc. et al

Filing 300

ORDER granting 287 Defendants Motion for Limited Reopening ofDiscovery Regarding Plaintiffs Emotional Damages Following Remand. Discovery Deadline reset to 8/30/2013. The Final Pretrial Conference is RESET for 9/30/2013 11:00 AM before Magistrate Judge Kristen L. Mix, by Magistrate Judge KristenCorrected title of text to ORDER)(ervsl, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 08-cv-00179-WJM-KLM
GLEN LLEWELLYN,
Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, and
NOMURA CREDIT AND CAPITAL, INC.,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion for Limited Reopening of
Discovery Regarding Plaintiff’s Emotional Damages Following Remand [Docket No.
287; Filed May 3, 2013] (the “Motion”).

The Motion is referred to this Court for

recommendation regarding disposition [#292]. On May 24, 2013, Plaintiff filed a Response
to the Motion [#293]. On June 10, 2013, Defendants filed a Reply [#296]. The Court has
reviewed the Motion, the Response, the Reply, the entire docket, and the applicable law,
and is sufficiently advised in the premises.
I. Background
On June 23, 2009, the Court entered an Order [#148] requiring the parties to
designate affirmative experts on or before October 1, 2009 and rebuttal experts on or
before November 1, 2009. That Order also set a discovery cut-off of December 1, 2009,
and a dispositive motions deadline of January 12, 2010. Order [#148] at 2. Defendants

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allege that they timely served discovery requests on Plaintiff. Motion [#287] at 3. Included
in Defendants’ written discovery requests to Plaintiff was Interrogatory 14 which reads:
Please identify in [sic] any way that Ocwen caused you physical or emotional
distress or anguish or harm, including but not limited to:
a.
b.
c.
d.
e.

All conduct, with particularity, you contend caused you physical or
emotional distress [or] anguish or harm;
the date of that conduct and the nature of that conduct;
the physical or emotional distress or anguish or harm suffered as a
result;
each medical provider you have seen; and
the treatment you have received and medication you have taken in
respect of such physical or emotional distress or anguish or harm.

Responses to Interrogatories [#183-11] at 5-6. On January 11, 2010, Plaintiff served his
responses to Defendants’ first set of interrogatories [#183-11]. In response to Interrogatory
14, Plaintiff stated: “The conduct is described in answers above. The conduct ruined me
financially, causing me severe emotional distress, headache, loss of sleep, and deep
depression. I am under the care of a doctor and will provide medical records if available.”
Id. at 6. When deposed on March 26, 2010, Plaintiff stated that between 2002 and 2008
he did not have any psychiatric evaluation and was not taking any medication prescribed
by a psychiatrist. Pltf. Depo. Trans. [#183-3] at 290:5-21. On September 13, 2010—more
than eight months after he served his responses to Defendants’ interrogatories—in
response to Defendants’ motion for summary judgment [#183], Plaintiff submitted a
declaration stating:
Due to Ocwen and their foreclosure lawyers, Castle, ruining my credit, both
my finances and my health began to rapidly deteriorate. I began
experiencing fatigue daily to the point where it became a chore to even get
out of bed. I developed blurred vision, rashes and itching skin on my torso
and legs, and painful joint inflammation. I also began to experience
numbness in my feet, hands, and legs, shortness of breath, and constant
thirst. [ ] When I went to see a doctor about what may be causing these
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ailments, the doctor immediately diagnosed me with diabetes, changed my
diet, and prescribed me insulin. I still have diabetes, and must take daily
insulin injections. At about that same time, the symptoms of my Crohn’s
Disease, which I knew well, returned with great force. . . . The symptoms
became so bad in late 2006/early 2007 that I could no longer complete what
limited work I had. I had none of these symptoms before Ocwen’s wrongfully
reported severe delinquency to the credit bureaus. . . . As a result of my
increased health problems, my depression returned.
Pltf. Decl. [#217-16] at ¶¶ 6-8. In a subsequent filing in opposition to Defendants’ motion
for summary judgment,1 Plaintiff argued that his claim brought pursuit to the Fair Credit
Reporting Act (the “FCRA”) should survive summary judgment because he “sought
psychological counseling and received medication due to the depression he suffered as a
result of [Defendants’] misconduct.” Resp. to MSJ [#251] at 30. Plaintiff further alleged
that his “mental health treatment plan notes show that on December 13, 2009,2 [Plaintiff]
was diagnosed with depression, noting psychosocial stressors: ongoing financial, and
Crohn’s disease, and was prescribed Duloxetine, a drug to treat depression and
generalized anxiety disorder.” Id. Plaintiff also claims that he “underwent individualized
psychotherapy in 2009.” Id. Defendants allege that they never had the opportunity to
conduct discovery regarding these new allegations. Motion [#287] at 5. The District Judge
granted summary judgment finding, with regard to the emotional harm Plaintiff allegedly
suffered, that “Plaintiff has failed to raise a triable issue as to whether his emotional harm
was caused by [Defendants’] conduct between December 5, 2006 and February 15, 2007.”

1

There were two rounds of summary judgment briefing in this action per Judge Martinez’s
Order [#244] requiring the parties to refile their pleadings in conformity with his Practice Standards
after the case was reassigned to him.
2

This treatment allegedly occurred prior to January 11, 2010, the date on which Plaintiff
served his responses to Defendants’ discovery requests.

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Order [#266] at 26.3 The case was subsequently dismissed. See generally Judgment
[#270].
Plaintiff appealed Judge Martinez’s Order [#266] to the Tenth Circuit Court of
Appeals (the “Tenth Circuit”). See generally Notice of Appeal [#271]. On March 28, 2013,
the Tenth Circuit affirmed Judge Martinez’s ruling except as to the claim for emotional
harm. Opinion [#276] at 20 (concluding that Plaintiff’s declaration “created a genuine
dispute as to whether the [Defendants’] actions caused him to suffer emotional damages.”).
With regard to “Plaintiff’s FCRA claim based on his alleged emotional damages,” the Tenth
Circuit reversed and remanded.4 Id. at 35.
In the Motion Defendants request that the Court reopen discovery on the limited
topic of Plaintiff’s alleged emotional damages.

Motion [#287] at 13.

Specifically,

Defendants request to be allowed to: (1) designate up to three additional expert witnesses;
(2) re-depose Plaintiff for no more than three hours; and (3) conduct third-party discovery
regarding “the statements, symptoms and medical records in plaintiff’s September 8, 2010
declaration including the issuance of medical records requests and/or Fed. R. Civ. P. 45
subpoenas to Plaintiff’s medical providers and conducting informal interviews with plaintiff’s
medical providers.” Id. at 14. Applying the standard enunciated in Smith v. United States,
834 F.2d 166, 169 (10th Cir. 1987), Defendants argue that “the Smith factors weigh in favor
of reopening discovery to allow expert witness designations, because . . . trial is not
3

Judge Martinez addressed many other issues in his Order [#266] but the only one relevant
for the instant Order is the allegation of emotional harm.
4

As a result of the dismissal and appeal, the current parties to this action are Plaintiff and
Defendants Ocwen Loan Servicing, LLC and Nomura Credit and Capital, Inc. Therefore, as part
of this Order, the Court will instruct the Clerk of the Court and the parties to modify the caption on
all pleadings going forward.

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imminent, [P]laintiff will not be prejudiced by allowing [Defendants] a fair opportunity to
obtain the discovery previously sought that [P]laintiff failed to provide, and the information
sought is highly relevant to the single issue remaining in this action on remand.” Motion
[#287] at 9.
Plaintiff’s Response leaves much to be desired. See generally Resp. [#293].5
Plaintiff fails to address the standard for reopening discovery and fails to address any of
the elements of the standard except to state in a conclusory fashion that Plaintiff would be
prejudiced by reopening discovery on any basis. Id. at 2.
I. Analysis
The Court may modify its scheduling orders upon a showing of good cause. See
Fed. R. Civ. P. 16(b)(4); D.C.COLO.LCivR 16.1. Whether to modify a scheduling order “to
extend or reopen discovery is committed to the sound discretion” of the Court. Smith, 834
F.2d at 169. When exercising its discretion, the Court considers the following factors: (1)
whether trial is imminent; (2) whether the request to reopen or extend discovery is
opposed; (3) whether the non-moving party would be prejudiced; (4) whether the moving
party was diligent in obtaining discovery within the guidelines established by the Court; (5)
the foreseeability of the need for additional discovery in light of the time allowed for
discovery by the Court; and (6) the likelihood that the discovery will lead to relevant
evidence. Id. (citations omitted). With regard to the fourth factor, the Court of Appeals for
the Tenth Circuit has explained that “[d]emonstrating good cause under [Rule 16(b)(4)]

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The Court also notes that Plaintiff’s Response fails to comply with D.C.COLO.LCivR
10.1E. which requires that “[a]ll papers shall be double-spaced” and D.C.COLO.LCivR 7.1C. which
requires motions, responses, and replies to “be supported by a recitation of legal authority
incorporated into the motion.”

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‘requires the moving party to show that it has been diligent in attempting to meet the
deadlines, which means it must provide an adequate explanation for any delay.’” Strope
v. Collins, 315 F. App’x 57, 61 (10th Cir. 2009) (quoting Moothart v. Bell, 21 F.3d 1499,
1504 (10th Cir. 1994)).
Applying the Smith factors, the Court finds that reopening discovery on the limited
topic of Plaintiff’s alleged emotional damages is appropriate. With regard to the first factor,
no trial date is set in this case. Therefore, there is adequate time to complete discovery on
this limited topic. Accordingly, the first Smith factor weighs in favor of reopening discovery.
With regard to the second factor, Plaintiff opposes Defendants’ request to reopen
discovery, alleging in a conclusory manner that he will be prejudiced by any reopening of
discovery. Resp. [#293] at 2. Moreover, Plaintiff asserts that the Court declined to reopen
discovery at an earlier hearing. Plaintiff’s contention is not persuasive here, where the
justification for the request to reopen discovery is entirely different. See Trans. of Status
Conference [#289] at 7:15-17 (“there just needs to be more extraordinary circumstances
than a change in counsel to justify reopening discovery at this point . . .”). Thus, the
second factor weighs in favor of reopening discovery, as Plaintiff’s opposition is superficial
and unsubstantiated.
With regard to the third factor, Plaintiff asserts that reopening discovery would
“severely” prejudice him. Id. He claims that he “has been subjected to grueling discovery
in this matter already, including three deposition sessions over the course of two months.”
Id. Defendants argue that it was Plaintiff’s own delay in offering his claim of emotional
distress that resulted in the present Motion. Reply [#296] at 3. Defendants further argue
that “Plaintiff cannot have it both ways by offering last-minute, uncorroborated testimony
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to keep his claim for emotional distress damages alive, and then claim prejudice when
[Defendants] request the opportunity to conduct appropriate discovery to determine the
veracity of his statements.” Motion [#287] at 10. The Court agrees with Defendants and
finds that Plaintiff will not be unduly prejudiced if discovery is reopened on a limited basis.
Accordingly, the third Smith factor weighs in favor of reopening discovery.
With regard to the fourth factor, based on the pleadings filed in this case, it appears
to the Court that Defendants were diligent in their attempt to obtain discovery on the issue
of Plaintiff’s emotional damages before the expiration of the deadline for the completion of
discovery. Therefore, the Court finds that the fourth Smith factor weighs in favor of
reopening discovery.
With regard to the fifth factor, the Court finds that because Plaintiff’s declaration
regarding his alleged emotional harm was filed significantly after the close of discovery,
Defendants could not have anticipated the need for this additional discovery within the time
allowed by the Court. As a result, the Court finds that the fifth Smith factor weighs in favor
of reopening discovery.
Finally, with regard to the sixth factor, the Court finds that reopening discovery
regarding the limited topic of Plaintiff’s alleged emotional damages is likely to lead to
relevant evidence. The claims expressed by Plaintiff in his declaration were not subject to
discovery because the declaration was not filed until September 13, 2012—more than five
months after the close of discovery. Therefore Defendant was unable to gather the
necessary information to defend against this claim during the discovery period. Further,
Defendants’ requests are limited to the one topic the Tenth Circuit remanded to this Court:
Plaintiff’s emotional damages. Accordingly, the Court finds that the sixth Smith factor
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weighs in favor of reopening discovery.
Because all six of the Smith factors weigh in favor of reopening discovery on the
limited topic of Plaintiff’s emotional damages, the Court concludes that reopening discovery
for the limited purpose of allowing Plaintiff to explore this topic is appropriate.
III. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the Motion [#287] is GRANTED as follows: the
Discovery Deadline is RESET to August 30, 2013. During that period, Defendants may
(1) re-depose Plaintiff for no more than three hours and (2) conduct third-party
discovery regarding Plaintiff’s alleged emotional damages. On or before August 16,
2013, Defendant may designate up to one additional expert witness relating to Plaintiff’s
alleged emotional distress.
IT IS FURTHER ORDERED that the Final Pretrial Conference set for July 2,
2013 at 10:30 a.m. is VACATED and RESET to September 30, 2013 at 11:00 a.m.
IT IS FURTHER ORDERED that the caption shall be changed to the above. The
Clerk of the Court shall modify the caption on the docket and the parties shall use the
modified caption on all future pleadings.
Dated: June 24, 2013

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