Toney et al v. JP Morgan Chase Bank

Filing 51

MINUTE ORDER granting in part and denying in part 46 Plaintiffs' Motion to Compel Discovery from Defendant JP Morgan Chase and Request for Sanctions, by Magistrate Judge Michael J. Watanabe on 1/13/2016.(emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03397-CMA-MJW
JOHN TONEY, and
VALERIE TONEY,
Plaintiffs,
v.
JP MORGAN CHASE BANK, a National Association,
Defendant.
MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that Plaintiffs’ Motion to Compel Discovery from
Defendant JP Morgan Chase and Request for Sanctions (Docket No. 46) is GRANTED
IN PART AND DENIED IN PART, as follows.
Plaintiffs argue that Defendant’s Responses to Plaintiffs’ First Set of
Interrogatories (Docket No. 49-1) is inadequate because the Fed. R. Civ. P. 33(b)(5)
verifications are not under oath. Plaintiffs are correct. Because the client verification
was neither sworn before a notary nor signed “under penalty of perjury,” the verification
is deficient. See 28 U.S.C. § 1746; In re World Trade Center Disaster Site Litigation,
722 F.3d 483, 487-88 (1st Cir. 2013). Accordingly, it is hereby ORDERED that
Defendant shall provide a proper verification for its responses to Plaintiff’s first set of
interrogatories no later than January 27, 2016.
Plaintiffs further argue that Defendant’s Responses to Plaintiffs’ First Request for
Admissions (Docket No. 49-3) are inadequate insofar as Defendant’s denials did not
“fairly respond to the substance of the matter” as required by Fed. R. Civ. P. 36(a)(4).
The Court agrees, as to all requests for admission pertaining to requesting credit
reports. In each of these requests, Plaintiffs ask whether Defendant received a credit
report or certified a permissible purpose to a credit bureau for purposes of receiving a
credit report. (See, e.g., Docket No. 49-3, p.7.) In each response, Defendant denied
the request to admit, then explained that it “has been able to locate any information to
show that Chase’s Credit Department pulled a credit report for the Plaintiffs on or about
[date] for the Mortgage or any mortgage related transaction.” (See, e.g., id.)
Defendant’s responses are inadequate for two reasons. First, Plaintiffs’ requests for
admission were not limited to Chase’s Credit Department and were not limited to
requests related to a mortgage. Second, elsewhere in Defendant’s discovery

responses, Defendant specifically describes requesting a Kroll Factual Data report on or
about April 15, 2014, in direct response to Plaintiffs’ interrogatories about requesting
credit reports. The Court takes these responses to suggest that the Kroll Factual Data
report includes credit reports; otherwise, the information would be nonresponsive. As a
result, Defendant’s interrogatory responses appear to contradict its admission denials.
The Court concludes that Defendant has not fairly responded to the substance of
Plaintiffs’ requests for admissions. Accordingly, it is further ORDERED that Defendant
shall provide revised responses to Plaintiffs’ requests for admissions no later than
January 27, 2016; these revised responses shall (1) respond to the requests for
admission without imposing extraneous limitations on the scope of Plaintiffs’ requests;
and (2) eliminate or explain the discrepancy between Defendant’s admission responses
and its interrogatory responses.
The Court has considered Plaintiffs’ remaining arguments and finds no further
flaws in Defendant’s discovery responses. Further, the Court finds that Plaintiffs have
not established any bad faith; to the contrary, the Court finds that Defendant’s lapses
were substantially justified and that an award of sanctions would be unjust under the
circumstances. Accordingly, the balance of Plaintiffs’ motion is DENIED.
Date: January 13, 2016