Smith et al v. Bank of America Home Loans et al
Filing
159
OPINION AND ORDER denying 131 Motion for Sanctions; denying 158 Motion to Strike. Signed by Judge John E. Steele on 1/15/2014. (MAB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRIAN T. SMITH, JONATHAN C. CALIANOS
Plaintiffs,
vs.
Case No.
2:11-cv-676-FtM-29DNF
BANK OF AMERICA HOME LOANS a
subsidiary of Bank of America, N.A.,
MORTGAGE ELECTRONIC
REGISTRATION
SYSTEMS, INC.,
Defendants.
___________________________________
BANK OF AMERICA, N.A.
Third
Party
Plaintiff,
vs.
BRIAN T. SMITH and JONATHAN C.
CALIANOS, in their representative
capacity
as
trustees
for
the
SMITHCAL REALTY TRUST,
Third
Party
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Plaintiffs’ Motion for
Sanctions
for
Failure
Procedure
30(b)(6)
Plaintiffs
filed
to
(Doc.
a
Comply
#131)
Supplement
with
filed
Federal
on
Regarding
Rule
Local
Civil
12,
December
of
2013.
Rule
3.01(g)
Certification on Motion for Sanctions (Doc. #144) on December 19,
2013.
Defendant
Bank
of
America,
N.A.
filed
a
Counter-
Certification of Defendants’ Counsel to Plaintiffs’ “Supplement
Regarding Local Rule 3.01(g) Certification on Motion for Sanctions”
(Doc. #148) on December 23, 2013, and a Response in Opposition to
Plaintiffs’ Motion for Sanctions for Failure to Comply with Federal
Rule of Civil Procedure 30(b)(6) (Doc. #151) on December 26, 2013.
On January 2, 2014, plaintiffs filed a Supplement to the Motion for
Sanctions (Doc. #156). In response, Bank of America filed a Motion
to Strike Plaintiffs’ “Supplement” to the Motion for Sanctions, or,
in the alternative, Request for Leave to Respond (Doc. #158) on
January 8, 2014.
I.
On May 31, 2013, pro se plaintiffs Brian Smith and Jonathan
Calianos notified Bank of America, N.A. of their intent to depose
a corporate representative pursuant to Rule 30(b)(6).
On August
22, 2013, plaintiffs sent Bank of America a Notice of Deposition
designating September 5, 2013 as the date for the deposition.
The
following day, Bank of America proposed that the deposition be
conducted on September 11, 2013, and identified certain topics
contained
in
the
objectionable.
Notice
of
Deposition
that
it
considered
The parties agreed to conduct the deposition on
September 12, 2013, and attempted to narrow the scope of the
deposition before the scheduled date, but were unable to do so.
a
result,
Bank
of
America
filed
an
Protective Order on September 10, 2013.
Emergency
Motion
for
As
a
The Court cancelled the
deposition and issued an Order precluding plaintiffs from inquiring
-2-
into certain topics.
The Court also issued a separate Protective
Order. Following the issuance of the Protective Order, the parties
agreed to conduct the deposition on November 25, 2013, but Bank of
America continued to object to a number of topics identified in the
Notice of Deposition.
On the designated date, Calianos appeared to conduct the
deposition of Bank of America’s corporate representative, Maria Ear
(Ear).1
Although the deposition lasted for more than seven hours,
plaintiffs were unable to obtain all of the desired information.
Plaintiffs contend that Ear was unfamiliar with all of the topics
identified in the Notice of Deposition and now seek entry of
default, or in the alternative, an order precluding defendant Bank
of America from presenting testimony on the topics in which the
Rule 30(b)(6) designee was unable to provide knowledgeable or
specific responses.
In response, Bank of America asserts that
plaintiffs’ motion is both procedurally defective and without
merit.2
1
Although plaintiffs are proceeding pro se, Calianos is a
licensed attorney; therefore, plaintiffs will not receive the
leniency customarily reserved for other pro se litigants.
See
Olivares v. Martin, 555 F.2d 1192, 1194 n.1 (5th Cir. 1977). See
Also Bowers v. Bd. of Regents of Univ. Sys. of Ga., 509 F. App’x
906, 908 n.1 (11th Cir. 2013).
2
Bank of America also moves to strike the supplement filed on
January 2, 2014, because it violates Local Rules 3.01(c), 3.01(g),
and 3.04(a). Although plaintiffs failed to comply with the Local
Rules, the circumstances do not warrant the requested relief.
Furthermore, the Court finds that additional briefing on the matter
(continued...)
-3-
II.
Rule 30(b)(6) of the Federal Rules of Civil Procedure governs
deposition notices directed to organizations.
Upon receiving a
deposition notice that describes “with reasonable particularity the
matters on which examination is requested,” an organization must
designate one or more persons to testify on its behalf as to those
matters.
Fed. R. Civ. P. 30(b)(6).
“The persons designated must
testify about information known or reasonably available to the
organization.”
Id.
The organization must adequately prepare the
designee to address the topics contained in the notice to the
extent matters are reasonably available, whether from documents,
past employees, or other sources.
Continental Cas. Co. v. First
Fin. Emp. Leasing, Inc., 716 F. Supp. 2d 1176, 1189 (M.D. Fla.
2010) (citing Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416,
433 (5th Cir. 2006)).
“If it becomes obvious that the deposition
representative designated by the corporation is deficient, the
corporation is obligated to provide a substitute.”
Brazos River
Auth., 469 F.3d at 433 (citations omitted).
If a corporate representative is unable to answer questions
regarding the designated subject matter, then the corporation has
failed
to
comply
with
Rule
30(b)(6)
2
and
may
be
subject
to
(...continued)
is unnecessary; therefore, Bank of America’s Motion to Strike
Plaintiffs’ “Supplement” to the Motion for Sanctions, or, in the
alternative, Request for Leave to Respond (Doc. #158) is denied.
-4-
sanctions.
Continental Cas. Co., 716 F. Supp. 2d at 1176.
Rule
37(d)(1)(A)(I) authorizes sanctions if a Rule 30(b)(6) designee
fails to appear for a deposition, and producing an unprepared
witness may be sanctionable as a nonappearance under the Rule. Id.
A motion for sanction filed pursuant to Rule 37 “must include a
certification that the movant has in good faith conferred or
attempted to confer with the party failing to act in an effort to
obtain the answer or response without court action.”
Fed. R. Civ.
P. 37(d)(1)(B).
Here, plaintiffs have failed to comply with Rule 37(d)(1)(B)
because they did not make a good faith effort to obtain the
requested information without court action.
It is clear that the
witness struggled with certain topics and was unable to provide
detailed answers on others;3 however, defense counsel stated during
the deposition, in response to plaintiffs’ motion for sanctions,
and during the Final Pretrial Conference, that Bank of America is
willing to provide additional information to cure any responses in
the deposition that plaintiffs’ consider inadequate, provided the
questions are within the scope Rule 30(b)(6) notice and are not
3
Bank of America acknowledges that the witness was unable to
provide specific answers to some of the questions, but the
transcript reflects that defense counsel wanted plaintiffs to
obtain the desired information and offered a recess to allow the
witness to obtain a computer with access to Bank of America’s
system so she could properly answer the questions.
Calianos,
however, disregarded the offer.
Interestingly, plaintiffs now
chastise Bank of America for not obtaining the witness’s computer
during the lunch break.
-5-
otherwise
objectionable.
Plaintiffs
refused
such
offers
and
indicated that they would rather seek sanctions than obtain the
relevant information.
Because Bank of America made a good faith
effort to provide plaintiffs with the desired information, the
Court finds that the harsh sanctions of default and exclusion of
evidence are not warranted.
See United States v. Certain Real
Property Located at Route 1, Bryant, Ala., 126 F.3d 1314, 1317
(11th Cir. 1997) (holding that Rule 37 sanctions such as dismissal
or entry of default are only appropriate when the offending party’s
conduct amounts to a flagrant disregard or willful disobedience of
discovery orders).
The Court further declines to reopen discovery to obtain the
desired information because of plaintiffs’ conduct during the
deposition. A review of the deposition transcript reveals that the
deposition was nothing short of a painful exercise riddled with
objections
and
irrelevancies.
In
conducting
the
deposition,
Calianos exceeded the scope of the Rule 30(b)(6) notice, attempted
to force the witness to answer questions based on his erroneous
definition of a “holder,” sought the witness’s personal opinion
regarding the similarity or differences between the signatures on
the two notes relevant to this case, had the witness read and
interpret credit reports prepared by third-parties, inquired about
Bank of America’s Amended Counterclaim and Third Party complaint,
and broached a topic precluded by the Court’s Protective Order.
-6-
Such conduct resulted in a transcript full of objections and
irrelevant personal opinions.
In light of all the circumstances,
the Court concludes that sanctions are not warranted; therefore,
plaintiffs’ motion for sanctions is denied.
Accordingly, it is now
ORDERED:
1.
Plaintiffs’ Motion for Sanctions for Failure to Comply
with Federal Rule of Civil Procedure 30(b)(6) (Doc. #131) is
DENIED.
2.
Defendant
Bank
of
America,
N.A.’s
Motion
to
Strike
Plaintiffs’ “Supplement” to the Motion for Sanctions, or, in the
alternative, Request for Leave to Respond (Doc. #158) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
January, 2014.
Copies:
Pro se parties
Counsel of record
-7-
15th
day of
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