Schneider et al v. CitiMortgage, Inc. et al
Filing
473
MEMORANDUM AND ORDER denying 463 Objections and Motion for Review. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 6/6/17. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RANDALL A. SCHNEIDER
and AMY L. SCHNEIDER
Plaintiffs,
v.
No. 13-4094-SAC
CITIMORTGAGE, INC.,
et. al.,
Defendants.
MEMORANDUM AND ORDER
This case comes before the court on the plaintiffs’ “Objections
and Motion for Review” (ECF# 463) of the Magistrate Judge’s Orders (ECF#
455 and #456), both of which were filed April 14, 2017. As this matter has
been fully briefed by the parties, the court will rule expeditiously. The
plaintiffs have filed a motion of seven pages, a memorandum in support of
32 pages, and a reply memorandum of 15 pages. Considering the Magistrate
Judge’s orders total six pages and the defendants’ opposition is 12 pages,
the plaintiff’s filings total three times more pages. The district court in its
prior order commented on the plaintiffs’ “excessive and extended filings and
briefing in this case.” (ECF# 433, p. 4). Because the plaintiffs’ practice has
gone unabated, the district court gives this final warning and notice that it
reserves the right to strike summarily all future filings of excessive and/or
unwarranted length.
ECF# 455
In his order (“ECF# 455”), the Magistrate Judge summarized the
ongoing conflict that has marked the taking of Rule 30(b)(6) depositions for
Citigroup and other defendants. This summary included:
The court directed the parties to complete the Rule 30(b)(6)
depositions by December 31, 2016. Plaintiffs filed a motion for review
on November 14, 2016. The parties then consented to an extension of
time to extend the Rule 30(b)(6) depositions. On December 19, 2016,
the court granted the extension and allowed the parties until forty-five
(45) days following a ruling by the district court on the aforementioned
motion for review and other matters to complete the Rule 30(b)(6)
depositions.
On February 17, 2017, Judge Crow denied plaintiffs’ motion for
review. Following Judge Crow’s order, plaintiff’s counsel sought to
schedule Citigroup’s Rule 30(b)(6) deposition. Various discussions
were then had between counsel. On March 3, 2017, counsel for
defendants provided dates and a location for the Rule 30(b)(6)
depositions for CitiMortgate, Inc. and Citibank, N.A. Plaintiff’s counsel
was not happy with the proposed dates, but failed to suggest
alternative dates. On March 7, 2017, counsel for defendants suggested
a stipulation to plaintiff’s counsel that would eliminate the need for
Citigroup Rule 30(b)(6) deposition. Plaintiffs immediately rejected the
proposed stipulation. Plaintiffs filed its motion for contempt the next
day.
ECF#455, p. 2. This order further describes that the defendants were
granted leave to file a supplement in which they disclose having since
provided a location and other dates for the Citigroup Rule 30(b)(6)
deposition.
In ruling on the plaintiffs’ objection that Rule 30(b)(6) was
violated by the defendants’ conduct, the Magistrate Judge succinctly ruled:
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The court is concerned that counsel have once again failed to reach
agreement on a matter without the intervention of the court. Counsel
for both sides are responsible for what occurred here. Counsel for
defendants could have acted in a more efficient manner in responding
to plaintiffs’ counsel’s requests. However, there was no need for filing
of the instant motion. The parties should have come to terms on the
issues concerning the Rule 30(b)(6) deposition. The actions of
defendants’ counsel, while somewhat dilatory, certainly do not warrant
sanctions. Plaintiffs’ motion is denied. With an undying sense of
optimism and hope, the court again requests that counsel work in
cooperation to complete discovery in this case.
ECF#455, p. 3. This ruling correctly assessed the parties’ respective
positions and rightly expressed disappointment with both counsel for not
cooperating but rather inviting conflict through the defendants’ questionable
delay and the plaintiffs’ contentious motion. The Magistrate Judge again
urged counsel to cooperate in completing discovery. The order displays a
judicious exercise of discretion over one episode in a continuing spate of
discovery disputes that have been time consuming, wasteful of judicial
resources, and contrary to the spirit of Fed. R. Civ. P. 1.
The plaintiffs’ motion contentiously describes ten objections to
this order. Each objection will not be addressed separately, as they
repetitively advance the same basic point, that is, the Magistrate Judge
erred in not doing more against the defendants’ for their dilatory actions in
designating depositions after February 17, 2017. The plaintiffs’ memoranda
refer to defendants’ discovery conduct before February 17, 2017, and level
objections against it too. The court, however, will consider this other
discovery conduct for purposes of background information only.
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The plaintiffs primarily take issue with the Magistrate Judge’s
finding that “[t]he actions of defendants’ counsel, while somewhat dilatory,
certainly do not warrant sanctions.” ECF# 455, p. 3. They complain that the
ruling fails to discuss the applicable rules and the governing standards. They
argue that the defendants’ delays are discovery violations on their face
requiring sanctions and that the denial of sanctions will encourage the
dilatory behavior by the defendants.
A magistrate judge's order addressing non-dispositive pretrial
matters is not reviewed de novo, but it is reviewed under the more
deferential standard in which the moving party must show the order is
“clearly erroneous or contrary to the law.” First Union Mortg. Corp. v. Smith,
229 F.3d 992, 995 (10th Cir. 2000) (quoting Ocelot Oil Corp. v. Sparrow
Industries, 847 F.2d 1458, 1461-62 (10th Cir. 1988)); see Fed. R. Civ. P.
72(a). The plaintiffs’ motion fails its burden of showing that the Magistrate
Judge’s order is clearly erroneous or contrary to the law. The plaintiffs’
arguments do not establish how the defendants’ delayed responses
necessarily violated the plain requirements or deadlines imposed by rule or
order. The Magistrate Judge acted well within his reasonable discretion in
handling the plaintiffs’ motion in this manner. As has been observed, the
defendants could have acted more promptly and completely in their
responses on the deposition designations, and they could have acted more
timely in offering the proposed stipulation. Still, the court agrees with the
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Magistrate Judge that this conduct by the defendants is not in itself a
discovery violation warranting sanctions. In short, the plaintiffs have failed
to prove any error in the Magistrate Judge’s findings and conclusions.
ECF# 456
The Magistrate Judge here denied the plaintiffs’ motion to
reconsider the prior order of February 24, 2017, (ECF# 436), which had
denied the plaintiffs more time to seek relief on their allegations that the
defendants’ failed to produce all documents relevant to discovery requests.
The Magistrate Judge outlined the standards governing a motion to
reconsider and held:
The court has carefully considered the arguments of the parties.
The court finds no merit to the contentions raised by the plaintiffs.
Plaintiffs have failed to show any basis for reconsidering the court’s
order of February 24, 2017. Plaintiffs have failed to demonstrate that
they diligently discovered the “new” documents after receipt of the
documents from the defendants on December 19, 2016. As pointed
out by defendants, plaintiffs could have sought relief during the thirtyday window. In sum, the court denies plaintiffs’ motion to reconsider.
ECF# 456, p. 2. As the Magistrate Judge’s order cited, the court’s local rules
require a motion to reconsider to “be based on: (1) an intervening change
in controlling law; (2) the availability of new evidence; or (3) the need to
correct clear error or prevent manifest injustice.” D. Kan. Rule 7.3(b). A
motion to reconsider is not an opportunity to rehash or to bolster losing
arguments. Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan.
1994). A decision on a motion to reconsider is committed to the court’s
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sound discretion. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1397
(10th Cir. 1988).
The plaintiffs repeatedly accuse the defendants of not producing
documents and of not supplementing their discovery requests. By all
appearances, the plaintiffs’ arguments before the Magistrate Judge simply
rehashed their prior position and failed to show any clear error or manifest
injustice in his February ruling. The Magistrate Judge acted well within his
discretion in denying the motion to reconsider. On review, the district court
is not persuaded that the plaintiffs’ filings demonstrate that the Magistrate
Judge’s ruling on the motion to reconsider is clearly erroneous or contrary to
the law. While replete with contentious and inflammatory language, the
plaintiffs’ filings are devoid of arguments that are cogent, concise and
convincing. The plaintiffs have not carried their burden on their motion to
review.
IT IS THEREFORE ORDERED that the plaintiffs’ “Objections and
Motion for Review” (ECF# 463) of the Magistrate Judge’s Orders (ECF# 455
and #456) is denied.
Dated this 6th day of June, 2017 at Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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