Sellers v. SN Servicing Corporation et al

Filing 41

ORDER granting in part and denying in part 32 MOTION to Compel Discovery Responses. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 8/11/2017. (SGO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

RAYON SELLERS

CIVIL ACTION

VERSUS
NO. 16-378-SDD-RLB
SN SERVICING CORPORATION,
ET AL.

ORDER
Before the Court is Defendants’ Motion to Compel Discovery Responses (R. Doc. 32)
filed on July 17, 2017. Pursuant to Local Rule 7(f), Plaintiff had twenty-one days after service of
the motion to file an opposition. Upon Plaintiff’s motion, the Court extended Plaintiff’s deadline
to file an opposition to August 9, 2017. (R. Doc. 40). Plaintiff has not filed an opposition as of
the date of this Order. Accordingly, the motion is deemed to be unopposed.
I.

Background
On June 9, 2016, Raymond Sellers (“Plaintiff”) commenced this action for alleged

violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”)
against SN Servicing Corporation, William A. Fogleman, and Housing Opportunity Partners
REO, LLC (collectively, “Defendants”). (R. Doc. 1). Plaintiff has filed an Amended Complaint.
(R. Doc. 24). Plaintiff seeks damages allegedly incurred as a result of seeking cancellation of a
sheriff’s sale of his home, as well as recovery of “several thousands of dollars” in overcharged
interest on the underlying mortgage. (R. Doc. 24 at 2-5).
Plaintiff alleges that he “has suffered actual damages and injury, including, but not
limited to, the costs to stop the sheriff’s sale including attorney’s fees, stress, humiliation,

anxiety, extreme mental anguish and suffering, emotional distress, and excessive interest for
which he should be compensated in amounts to be proven at trial.” (R. Doc. 24 at 5). Plaintiff
further states that he seeks recovery for actual damages under the FDCPA; excessive interest
charged and collected by Defendants; “additional damages”; and attorney’s fees and costs. (R.
Doc. 24 at 5-6).
On March 3, 2017, Defendants served their First Set of Interrogatories and Requests for
Production of Documents on Plaintiff. (R. Doc. 32-2).
On April 19, 2017, after receiving an extension of the deadline to respond from
Defendants, Plaintiff provided his responses to the discovery requests. (R. Doc. 32-3).
On June 14, 2017, defense counsel sent Plaintiff’s counsel an e-mail outlining alleged
deficiencies with Plaintiff’s responses to Interrogatory Nos. 8, 10, 12, 17, 19, and 20, and
Requests for Production Nos. 13, 14, 16, and 17. (R. Doc. 32-4 at 1-2). Defense counsel
requested supplemental responses by June 28, 2017. (R. Doc. 32-4 at 2).
On June 30, 2017, having received no supplemental responses, defense counsel informed
Plaintiff’s counsel that Defendants intended on filing a motion to compel regarding the deficient
responses. (R. Doc. 32-5). Plaintiff’s counsel responded by representing that he had been “out of
state” and would discuss the deficiencies with Plaintiff on July 3, 2017, and then provide defense
counsel with an update. (R. Doc. 32-6 at 2). Defense counsel agreed. (R. Doc. 32-6 at 1).
On July 5, 2017, defense counsel sent Plaintiff’s counsel another e-mail requesting an
update on the status of Plaintiff’s supplemental responses. (R. Doc. 32-6 at 1).
On July 7, 2017, Plaintiff’s counsel represented that he was meeting with Plaintiff, and
that Plaintiff would provide supplemental responses on July 10, 2017. (R. Doc. 32-7).

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On July 10, 2017, Plaintiff provided “amended” responses to the discovery requests. (R.
Doc. 32-8). At the same time, Plaintiff’s counsel informed defense counsel that he was “working
up the payments on a spread sheet to determine the excessive interest charges.” (R. Doc. 32-9).
Defendants represent that they have not been provided with the requested supplemental
information as of the date of the filing of the Motion to Compel. (R. Doc. 32-1 at 3).
On July 13, 2017, Defendants took Plaintiff’s deposition. (R. Doc. 32-12). At his
deposition, Plaintiff testified that he had in his possession certain loan-related documents and
records of payments that he had not produced in discovery, further stating that some of the
documents were thrown away in the past few years in light of water damage. (R. Doc. 32-12 at
7-9). Plaintiff also asserted that he needed “two or three weeks” to get the documents together to
produce. (R. Doc. 32-12 at 10-11). Plaintiff’s counsel also represented at the deposition that he
had additional responsive documents to produce and that he would provide them by e-mail
during a break in the deposition. (R. Doc. 32-12 at 14-18). Defendants represent that Plaintiff’s
counsel emailed more than 200 pages of documents to defense counsel during the deposition. (R.
Doc. 32-1 at 4; see R. Doc. 32-12 at 18-19).
Defendants now seek an order compelling Plaintiff to respond fully to Interrogatory Nos.
10, 12, and 17, and Request for Production No. 13. (R. Doc. 32).
II.

Law and Analysis
A.

Legal Standards

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties
may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to relevant information,

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the parties’ resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P.
26(b)(1). The court must limit the frequency or extent of discovery if it determines that: “(i) the
discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less expensive; (ii) the party seeking
discovery has had ample opportunity to obtain the information by discovery in the action; or (iii)
the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P.
26(b)(2)(C).
“The court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).
Rule 26(c)’s “good cause” requirement indicates that the party seeking a protective order has the
burden “to show the necessity of its issuance, which contemplates a particular and specific
demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra
Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323,
1326 n.3 (5th Cir. 1978)).
Rules 33 and 34 provide a party with 30 days after service of the discovery to respond or
object. See Fed. R. Civ. P. 33(b)(2) and 34(b)(2)(A). If a party fails to respond fully to discovery
requests made pursuant as to Rules 33 and 34 in the time allowed by the Federal Rules of Civil
Procedure, the party seeking discovery may move to compel disclosure and for appropriate
sanctions under Rule 37. An “evasive or incomplete disclosure, answer, or response must be
treated as a failure to disclose, answer or respond.” Fed. R. Civ. P. 37(a)(4).

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B.

Analysis
1.

Interrogatory No. 10

Defendants’ Interrogatory No. 10, and Plaintiff’s responses to Interrogatory No. 10, are
as follows:
INTERROGATORY NO. 10
Please Identify, itemize and describe in specific detail the amount(s) for alleged
excessive interest charged and collected by the Defendants and Identify your
method of calculation the amount(s).
RESPONSE TO INTERROGATORY NO. 10
Plaintiff objects to this interrogatory as overbroad, burdensome and harassing.
Without waiving these objections, plaintiff is attempting to calculate these
amounts which involve numerous payments over many years as reflected in the
documents referenced in interrogatory number 1.1
[AMENDED] RESPONSE TO INTERROGATORY NO. 10
Plaintiff objects to this interrogatory as overbroad, burdensome and harassing.
Without waiving these objections, plaintiff is attempting to calculate these
amounts which involve numerous payments over many years as reflected in the
documents referenced in interrogatory number 1. The method of calculation
involves multiplying the balance owed by the interest rate of 9.5%, dividing the
amount by 365 days and then multiplying the result by the number of days from
the last payment to determine the interest owed from that payment, subtracting
that amount from the payment amount to determine the amount of the payment
applied to the principal, then subtracting that amount from the balance owed.
(R. Doc. 32-2 at 9; R. Doc. 32-3 at 4; R. Doc. 32-8 at 4).
Defendants argue that Plaintiff’s response to Interrogatory No. 10 remains “incomplete
and deficient.” (R. Doc. 32-1 at 5). The Court overrules Plaintiff’s objections, as the
interrogatory is not overbroad and there is no evidence that it is overly burdensome or meant to
harass Plaintiff.

In response to Interrogatory No. 1, Plaintiff stated that he produced “responses to discovery from the plaintiff in
the
matter entitled, ‘U.S. Bank Trust, National Association, as Trustee vs. Rayon Sellers, Jennifer J.
Sellers and Svtlana Yvette Ely Jackson,’ Number: 625476, Section 27, 19th Judicial District Court,
Parish of East Baton Rouge, State of Louisiana, unnumbered pages 62-73.” (R. Doc. 32-3 at 1).
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The information sought is within the scope of discovery. While Plaintiff has provided a
general method for calculating excessive payments, Plaintiff’s responses do not identify the
amount of alleged excessive interest charged and collected by Defendants. Plaintiff must
supplement his response by identifying the actual excessive interest charged that he is claiming
as damages. To the extent the calculation of excessive interest sought to be obtained as damages
is to be provided in an expert report, Plaintiff must specifically identify the expert who will be
calculating the specific categories of damages to be provided in the expert report.2
For the foregoing reasons, Defendants’ motion is GRANTED with regard to
Interrogatory No. 10. Plaintiff must provide a supplemental response within 7 days of the date
of this Order consistent with the foregoing.
2.

Interrogatory No. 12

Defendants’ Interrogatory No. 12, and Plaintiff’s responses to Interrogatory No. 12, are
as follows:
INTERROGATORY NO. 12
Please Identify each and every exhibit you may use at the trial and/or hearing in
this matter.
RESPONSE TO INTERROGATORY NO. 12
Plaintiff objects to this interrogatory as it is premature, [overbroad] and
burdensome. Without waiving these objections, plaintiff use [sic] any documents
referenced in these discovery responses which are either produced in conjunction
therewith or are part of the state court record. Plaintiff will continue to look for
any documents which may be responsive to this request and produce them as he
obtains or discovers them.
[AMENDED] RESPONSE TO INTERROGATORY NO. 12
Plaintiff objects to this interrogatory as it is premature, [overbroad] and
burdensome. Without waiving these objections, plaintiff use [sic] any documents
referenced in these discovery responses which are either produced in conjunction
therewith or are part of the state court record. Plaintiff will continue to look for

Plaintiff’s deadline to disclose the identities of his experts is August 15, 2017, and his deadline to provide expert
reports is November 15, 2017. (R. Doc. 15 at 1-2).
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any documents which may be responsive to this request and produce them as he
obtains or discovers them.
(R. Doc. 32-2 at 9; R. Doc. 32-3 at 4; R. Doc. 32-8 at 4-5).
The Court will sustain Plaintiff’s objection that this interrogatory is premature. The
Court’s deadlines control when exhibits must be disclosed. The deadline to disclose exhibits is
set by the district judge through the filing of the Pre-Trial Order. The Court will not compel a
discovery response that conflicts with its current deadlines.
For the foregoing reasons, Defendants’ motion is DENIED with regard to Interrogatory
No. 12.
3.

Interrogatory No. 17 and Request for Production No. 13

Defendants’ Interrogatory No. 17, and Plaintiff’s responses to Interrogatory No. 17, are
as follows:
INTERROGATORY NO. 17
Please Identify, itemize and describe in specific detail each and every item of
special, incidental and/or consequential damages for which you seek recovery in
this lawsuit, as well as the method(s) used to calculate such damages. Your
response must include an itemized listing of all claimed damages, and the amount
of alleged damages alleged for each category.
RESPONSE TO INTERROGATORY NO. 17
Plaintiff objects to this Interrogatory to the extent that it seeks to harass, penalize
and unduly burden the plaintiff by requesting information that has already been
provided to the defendant. Notwithstanding this objection and specifically
reserving the same, the plaintiff restates as follows:
Plaintiff has endured substantial and ongoing emotional and mental anguish,
stress, worry, humiliation and frustration because of this ordeal to recapture his
good name. The plaintiff has suffered extreme frustration and aggravation as a
direct and proximate result of the defendants[s’] refusal to accurately report on
plaintiff’s credit with regard to the account complained of. Plaintiff will produce
documents evidencing his damages for having to file a writ application subject to
the entry of a protective order.
[AMENDED] RESPONSE TO INTERROGATORY NO. 17
Plaintiff objects to this Interrogatory to the extent that it seeks to harass, penalize
and unduly burden the plaintiff by requesting information that has already been
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provided to the defendant. Notwithstanding this objection and specifically
reserving the same, the plaintiff restates as follows:
Plaintiff has endured substantial and ongoing emotional and mental anguish,
stress, worry, humiliation and frustration because of this ordeal to figure out what
exactly is owed on this alleged obligation. The plaintiff has suffered extreme
frustration and aggravation as a direct and proximate result of the defendants’
charging excessive interest, which causes defendants to request more than is
actually owed on this Vendor’s Lien. Plaintiff will produce documents evidencing
his damages for having to file a writ application subject to the entry of a
protective order.
(R. Doc. 32-2 at 10; R. Doc. 32-3 at 6; R. Doc. 32-8 at 6).
Defendants’ Request for Production No. 13, and Plaintiff’s responses to Request for
Production No. 13, are as follows:
REQUEST FOR PRODUCTION NO. 13
Please produce all Documents evidencing or reflecting any item of special,
incidental and/or consequential damages for which you seek recovery in this
lawsuit.
RESPONSE TO REQUEST FOR PRODUCTION NO. 13
Please see response to interrogatory number 17.
[AMENDED] RESPONSE TO REQUEST FOR PRODUCTION NO. 13
Please see response to interrogatory number 17.
(R. Doc. 32-2 at 13; R. Doc. 32-3 at 10; R. Doc. 32-8 at 10).
Defendants represent that on July 10, 2017, Plaintiff provided a draft protective order to
Defendants, which Defendants agreed to have entered by the Court. (R. Doc. 32-1 at 7).
Defendants further represent that Plaintiff’s counsel “subsequently indicated” that Plaintiff may
produce information responsive to this request without a protective order governing
confidentiality in place, but has nevertheless not produced the information to date. (R. Doc. 32-1
at 7-8). Neither party has sought entry of a protective order governing the exchange of
confidential information during discovery.

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The Court overrules Plaintiff’s objections, as it does not appear that the underlying
information has been provided. Plaintiff did not specifically object to the foregoing discovery
requests on the basis of confidentiality, and has not raised any argument in opposition to the
instant motion regarding the confidentiality of the information sought by Defendant. The Court
finds no basis for issuing a protective order regarding the information sought in response to
Defendants’ Interrogatory No. 17 and Request for Production No. 13.
Furthermore, the information sought is within the scope of discovery. While Plaintiff
need not quantify any general damages sought, he must quantify the alleged damages regarding
excessive interest and any other quantifiable special, incidental and/or consequential damages
sought. Accordingly, the Court will require Plaintiff to supplement his response to Interrogatory
No. 17 by specifically identifying the damages sought for his alleged injuries, including the
calculations used to determine those damages. To the extent any calculations of damages are to
be provided in an expert report, Plaintiff must specifically respond to Interrogatory No. 17 by
identifying the expert who will be calculating the specific categories of damages to be provided
in an expert report.
Similarly, the Court will require Plaintiff to supplement his response to Request for
Production No. 13 by providing all responsive documents in his possession, custody, or control
evidencing or reflecting the special, incidental and/or consequential damages sought. Such
documents must be produced even if an expert witness will ultimately provide the calculation of
damages sought.
For the foregoing reasons, Defendants’ motion is GRANTED with regard to
Interrogatory No. 17 and Request for Production No. 13. Plaintiff must provide supplemental
responses within 7 days of the date of this Order consistent with the foregoing.

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4.

Defendants’ Request for Reasonable Expenses

Under Rule 37(a)(5)(C), if a motion to compel discovery is granted in part and denied in
part, a court may apportion the reasonable expenses for the motion. The record demonstrates
that Plaintiff’s counsel has delayed the production of responsive documents. In addition, despite
requesting the Court for an extension of the deadline to respond to the instant motion, which
occupied the Court’s time in addressing, Plaintiff’s counsel has not filed a timely opposition.
Accordingly, the Court finds it appropriate to require Plaintiff’s counsel to pay 75% of
Defendants’ reasonable expenses in bringing the instant motion.
III.

Conclusion
Based on the foregoing,
IT IS ORDERED that Defendants’ Motion to Compel (R. Doc. 32) is GRANTED IN

PART and DENIED IN PART. Plaintiff shall supplement his responses to Interrogatory Nos.
10 and 17, and Request for Production No. 13, within 7 days of this Order.
IT IS FURTHER ORDERED that Defendants are entitled to an award of 75% of the
reasonable attorney’s fees and costs that they incurred in bringing this motion to compel and that
Plaintiff’s attorney Mr. Ridge shall be responsible for such payment. In connection with this
award, the parties are to do the following:
(1)

If the parties are able to resolve this among themselves or otherwise agree to a
reasonable amount of attorney’s fees and costs,3 Plaintiff’s counsel shall pay that
amount;

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This Court has previously found that a relatively modest award was reasonable under similar circumstances where
all of the defendants’ reasonable expenses were awardable. See Talley v. State Farm Mutual Automobile Ins. Co.,
No. 16-cv-406, ECF No. 15 (M.D. La. Dec. 9, 2016) ($250 award). The Court also recognizes that a reasonable
award under Rule 37 may be less than the actual fees incurred.
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(2)

If the parties do not agree to a resolution, Defendants shall, within 14 days of the
docketing of this Order, file a Motion for Fees and Costs pursuant to Rule 37,
setting forth the reasonable amount of costs and attorney’s fees (including
evidentiary support) incurred in obtaining this Order; and

(3)

Plaintiff shall, within 7 days of the filing of Defendants’ Motion, file any
opposition pertaining to the imposition of the amounts requested by Defendant.

Signed in Baton Rouge, Louisiana, on August 11, 2017.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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