Schneider et al v. CitiMortgage, Inc. et al

Filing 585

ORDER denying 516 Motion for Sanctions. Signed by Magistrate Judge K. Gary Sebelius on 6/21/2018.(wh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RANDALL A. and AMY L. SCHNEIDER, )
)
Plaintiffs,
)
)
v.
)
)
CITIMORTGAGE, INC., et al.,
)
)
Defendants.
)

Case No. 13-4094-SAC

ORDER
This matter presently comes before the court upon plaintiffs’ Motion for Sanctions Relating
to Court-Ordered Deposition of Primerica (ECF No. 516).1 For the following reasons, this motion
is denied.
I.
On June 29, 2017, the court granted in part and denied in part plaintiffs’ motion contending
that defendant Primerica Financial Services Home Mortgages, Inc.’s (“Primerica”) corporate
representative was unprepared during his deposition of December 29, 2016.2 As part of that order,
the court allowed plaintiffs to conduct another Rule 30(b)(6) deposition of Primerica’s corporate
representative on three topics.3 In the instant motion, plaintiffs seek sanctions because Primerica’s
corporate representative was not adequately prepared to respond to their questions concerning
“CitiQuick,” what plaintiffs have described as a “streamlined loan renewal program.”
II.
In the prior order, the court set forth guidelines for Rule 30(b)(6) depositions as follows:

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Plaintiffs have requested oral argument on this motion, but the court does not find that oral argument is

necessary.
2
3

Mem. and Order, ECF No. 477.
Id. at 11.

Rule 30(b)(6) governs deposition notices and subpoenas directed to
organizations. The Rule requires the named organization to designate one or more
officers, directors, or managing agents, or designate other persons who consent to
testify on its behalf. The Rule also requires the designated witnesses to testify about
information known or reasonably available to the organization.
The testimony of a Rule 30(b)(6) designee represents the knowledge of the
corporation, not of the individual deponents. In a proper Rule 30(b)(6) deposition,
“there is no distinction between the corporate representative and the corporation.”
A corporation has a duty under Rule 30(b)(6) to provide a witness who is
knowledgeable in order to provide “binding answers on behalf of the corporation.”
Rule 30(b)(6) is not designed to be a memory contest. Certain questions
may seek details so minute that a witness could not reasonably be expected to
answer them. However, a corporation has “a duty to make a conscientious, goodfaith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and
to prepare them to fully and unevasively answer questions about the designated
subject matter.”4
III.
During a prior meeting with plaintiffs concerning their loan, Ms. Kerry Cobb wrote, inter
alia, “Citi Quick” on a page of handwritten notes. Ms. Cobb was deposed by plaintiffs in 2014.
Ms. Cobb has been identified as a representative of Primerica.
During this litigation, plaintiffs submitted various topics for the Rule 30(b)(6) deposition
of Primerica’s corporate representative. One of these topics, Topic 41, sought the following
information: “Identify, describe, and explain the terms Smart Loan Center, Smart Solutions, Citi
Quick, E-Z Pay, and Timely Rewards, as these applied to the Schneiders’ loan.” On December
29, 2016, plaintiffs deposed Primerica’s corporate representative, Michael Turnage. Following
that deposition, plaintiffs argued that Mr. Turnage was not prepared to respond to several topics,
including the term “Citi Quick” contained in Topic 41. The court agreed and allowed plaintiffs to
conduct another deposition on the issues where the court found that Mr. Turnage was unprepared.
Concerning “Citi Quick,” the court found that he was unable to define the term and had made no
effort to determine the meaning of the term.
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Id. at 6(footnotes omitted).

2

Prior to the deposition, Primerica provided a fact stipulation regarding “Citi Quick.” The
proposed stipulation stated:
"Citi Quick" is a mortgage loan processing format that is intended to be streamlined
as compared to traditional mortgage loan processing. If a borrower meets certain
criteria, instead of requiring the traditional type and extent of credit documentation,
a lender would evaluate only certain factors in a borrower's credit profile. The term
"Citi Quick" did not apply to or describe the Schneiders' mortgage loan through
Citicorp in September 2007 or Citicorp's evaluation of the Schneiders' request to
Citicorp in 2010 to refinance the loan. The term "Citi Quick" did not apply to the
Citicorp-Primerica relationship.
Plaintiffs refused to agree to the stipulation and requested another deposition. When asked
about “Citi Quick” at his second deposition, Mr. Turnage referenced the proposed factual
stipulation, which was introduced as an exhibit. Mr. Turnage reiterated the information contained
in the stipulation. Mr. Turnage testified that, to prepare for the deposition, he consulted with a
Citibank representative, David Chambers.
IV.
Plaintiffs contend that Mr. Turnage failed provide truthful information concerning “Citi
Quick.” They argue that his testimony that this term did not apply to them is an “impossibility.”
They further contend that Mr. Turnage indicated that all of Primerica’s products and programs
were available on-line. Plaintiffs suggest this is the first time that Primerica had ever mentioned
that its products were available on-line. They assert that Primerica has “obstructed” discovery.5
Plaintiffs ask that the court impose sanctions on Primerica. They request that the court should not
allow Primerica to defend the claims relating to its loan approval and programs.

5

In their reply brief, plaintiffs raised arguments that were not contained in their motion. The court will not
consider these new arguments. U.S. Fire Ins. Co. v. Bunge N. Am., Inc., 2008 WL 3077074, at *9 n. 7 (D.Kan. Aug.
4, 2008) (court will not consider argument raised for first time in reply brief) (citing Minshall v. McGraw Hill
Broadcasting Co., 323 F.3d 1273, 1288 (10th Cir.2003)).

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V.
The court has thoroughly reviewed Mr. Turnage’s deposition. The court finds no merit to
any of the arguments asserted by plaintiffs. The court finds that Mr. Turnage was prepared and
did adequately respond to plaintiffs’ counsel’s questions concerning “Citi Quick.” Plaintiffs were
not satisfied with his responses, but plaintiffs’ dissatisfaction with his responses does not justify
sanctions. The court also finds no basis for plaintiffs’ suggestion that Mr. Turnage testified that
Primerica’s products were available somewhere on-line, and this was the first time that such
information had been provided. In fact, he explicitly stated: “I don’t remember what information
regarding the particular—the lending products would be there.” The court fails to find any
connection between his testimony concerning the on-line system and the term “Citi Quick.”
In sum, the court does not find that sanctions should be imposed. The court also will not
grant Primerica’s request for attorney’s fees based on the contention that plaintiffs’ motion was
frivolous.
IT IS THEREFORE ORDERED that plaintiffs’ Motion for Sanctions Relating to CourtOrdered Deposition of Primerica (ECF No. 516) is hereby denied.
IT IS SO ORDERED.
Dated this 21st day of June, 2018, at Topeka, Kansas.

s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge

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