Webb v. Green Tree Servicing LLC
Filing
64
MEMORANDUM AND ORDER DENYING 55 Correspondence of Plaintiff to Compel Discovery Responses. DIRECTING Defendant Show Cause Within 14 Days Why it Should Not be Sanctioned. Signed by Magistrate Judge Paul W. Grimm on 7/27/12. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Northern Division
*
SANDY N. WEBB,
*
Plaintiff,
*
v.
Civil Case No.: ELH-11-2105
*
GREEN TREE SERVICING LLC,
*
Defendant.
*
*
*
*
*
*
*
*
*
*
*
*
*
*
MEMORANDUM AND ORDER
This Memorandum and Order1 addresses Plaintiff Sandy N. Webb’s Letter Motion to
Compel Discovery Responses, ECF No. 55; and Defendant Green Tree Servicing LLC’s
Opposition, ECF No. 59. Plaintiff has not filed a reply and the time for doing so has passed. See
D. Md. Loc. R. 105.2.a. For the reasons explained below, Plaintiff’s Motion is DENIED.
Accordingly, this Memorandum and Order disposes of ECF Nos. 56 and 59.
I.
BACKGROUND
This case involves Plaintiff’s allegations that Defendant, who holds the mortgage on
residential real property owned by Plaintiff, took various actions that resulted in Plaintiff losing
rental income and falling further into delinquency on her mortgage. See June 7, 2012 Mem. Op.,
ECF No. 52 (discussing Plaintiff’s viable claims). In her Motion to Compel, Plaintiff requests
that the Court order Defendant to respond to two of her document production requests, Nos. 20
and 22, for which Defendant originally supplied non-specific, boilerplate objections. Pl.’s Mot.
1
Judge Hollander referred this case to me for discovery disputes and related scheduling matter
on June 15, 2012, pursuant to 28 U.S.C. § 636 and Local Rules 301 and 302. ECF No. 56
1–4; see infra. Request No. 20 seeks “[a]ll documents that show that [Defendant has] interfered
with other tenants living in home[/s] where the homeowner was in default.” Id. at 2 (second
alteration in original).
Request No. 22 seeks “[a]ll documents that show [Defendant has]
authorized on site visits, inspections, or other activities without notice and the homeowner has
complained.” Id. Defendant provided the following deficient objection to both requests: “Green
Tree objects to this request on the grounds that it is vague and ambiguous, unduly burdensome,
overbroad, calls for a legal conclusion, and seeks production of documents that are not relevant
to the claims or defenses of either party.” Def.’s Resps. to Reqs. for Produc. of Docs, in Pl.’s
Mot. 13–14. Consequently, Defendant’s response stated that “no documents will be produced in
response to [these] request[s].” Id. at 13–14.
II.
DISCOVERY DEFICIENCIES
I note, preliminarily, that neither party is without fault in this discovery dispute. Plaintiff,
on the one hand, has failed to comply with a number of discovery rules, local rules, and
discovery guidelines, and although proceeding pro se, Plaintiff is an attorney and required to be
aware of them. See July 16, 2012 Mem. & Order 3 n.3, ECF No. 63. First, she has not filed the
certificate required by Federal Rule of Civil Procedure 37(a)(1) and Local Rule 104.7. See Fed.
R. Civ. P. 37(a)(1) (“The motion [to compel] must include a certification that movant has in
good faith conferred or attempted to confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without court action.”); D. Md. Loc. R. 104.7 (“The Court will
not consider any discovery motion unless the moving party has filed [the necessary]
certificate.”); see also Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D. 651, 655 (D. Md.
1997); Anderson v. Reliance Standard Life Ins. Co., No. WDQ-11-1188, 2011 WL 4828891, at
*1 (D. Md. Oct. 3, 2011). Second, Plaintiff’s submission does not comply with Local Rule
2
104.8, which outlines the procedure to be followed when, as here, a party asserts “that the
opposing party provided substantially inadequate discovery responses.” Anderson, 2011 WL
4828891, at *2; see id. (explaining that, under the local rule, once it has been determined that
“informal communications [will] not resolve the dispute, the requesting party may serve a
motion to compel on the opposing party (not the Court), receive a response, and serve a reply”;
“[o]nly after this exchange may the requesting party file the papers with the Court”). Moreover,
Local Rule 104.8 provides that the motion to compel is to be served on the opposing party
“within thirty (30) days of the [moving] party’s receipt of the [discovery] response.” Loc. R.
104.8.a (emphasis added).
Defendant responded, with objections, to Plaintiff’s document
production requests on March 19, 2012; Plaintiff’s Motion to Compel was not filed until June 14,
2012—well beyond the thirty day deadline, and “less than thirty days before the close of
discovery.” Def.’s Opp’n 4; Pl.’s Mot. 1. Plaintiff’s belated filing of her motion to compel more
than thirty days after she received Defendant’s Rule 34 answer, and so close to the discovery
cutoff, is especially troubling because, if granted, it would disrupt the Court’s Scheduling Order
by extending the discovery deadline beyond that intended by Judge Hollander. For these reasons
alone, Plaintiff’s motion should be denied. As stated below, however, there are substantive
reasons which also require that it be denied.
Defendant, on the other hand, originally responded to Plaintiff’s Document Production
Requests Nos. 20 and 22 with non-specific, boilerplate objections, alleging, without support from
particularized facts, that the requests were vague, ambiguous, unduly burdensome, overbroad,
and irrelevant. See supra. Such objections clearly disregard the requirement, stated in the
Federal Rules of Civil Procedure, this Court’s Local Rules, and ample case law, that objections
to document production requests must be specific, non-boilerplate, and supported by
3
particularized facts and that failure to do so waives the objections.
See Fed. R. Civ. P.
34(b)(2)(B); Loc. R. 104.6; Loc. R. App. A, Discovery Guideline 10.e (“If a party asserts in
response to an interrogatory, request for production of documents, or request for admission of
facts, that . . . requested discovery is unduly burdensome or expensive, the party making that
assertion is expected to disclose, promptly and with particularity, the facts on which it relies to
support that contention.”); Mezu v. Morgan State Univ., 269 F.R.D. 565, 573 (D. Md. 2010);
Hall v. Sullivan, 231 F.R.D. 468, 470 (D. Md. 2005); Thompson v. U.S. Dep’t of Hous. & Urban
Dev., 199 F.R.D 168, 173 (D. Md. 2001); Marens v. Carrabba’s Italian Grill, Inc., 196 F.R.D.
35, 38–39 (D. Md. 2000); see also Deakins v. Pack, No. 1:10-1396, 2012 WL 242859, at *12
(S.D.W. Va. Jan. 25, 2012) (“The party objecting to discovery as vague or ambiguous has the
burden of showing such vagueness or ambiguity.” (citing McCoo v. Denny’s Inc., 192 F.R.D.
675, 694 (D. Kan. 2000))); Thompson v. U.S. Dep’t of Hous. & Urban Dev., 219 F.R.D. 93, 99
(D. Md. 2003) (“A properly particularized showing of burden . . . identifies evidentiary facts to
support the claims of unfair burden or expense.” (citation and internal quotation marks omitted)).
Put simply, objections that recite “the familiar litany that . . . a document production request is
‘overly broad, burdensome, [vague, ambiguous, and/or] irrelevant’”—like those made by
Defendant in this case—are plainly deficient. Momah v. Albert Einstein Med. Ctr., 164 F.R.D.
412, 417 (E.D. Pa. 1996). Against this wealth of authority, Defendant’s patently deficient
responses are particularly disturbing, and call into question whether Defendant violated Fed. R.
Civ. P. 26(g)(1)(B)(i)–(iii).
Accordingly, Defendant is ORDERED to show cause within
fourteen (14) days why it should not be sanctioned pursuant to Fed. R. Civ. P. 26(g)(3).
4
III.
THE SUBSTANCE OF PLAINTIFF’S MOTION TO COMPEL
Having noted the deficiencies in the manner in which the parties have addressed this
discovery dispute, I now consider the substance of Plaintiff’s motion, which turns on the
relevance of the material sought by Plaintiff in Document Production Requests Nos. 20 and 22 to
the claims in her complaint.
A. Parties’ Relevance Arguments
In her motion, Plaintiff states that Document Production Requests Nos. 20 and 22, which
seek information regarding Defendant’s past interactions with other tenants and homeowners not
involved in this litigation, will result in the discovery of relevant information for several reasons.
First, Plaintiff argues that “evidence of specific actions taken by [Defendant] with regard to other
homeowners is relevant to prove . . . the existence and strength of a mortgage servicer acting as a
collection agent.” Pl.’s Mot. 3. Similarly, Plaintiff asserts that “evidence showing the nature and
effectiveness of any retaliatory actions taken by [Defendant] with regard to other homeowners is
particularly relevant to show malice in the trespass claim, intent in the intentional interference
claim, and knowledge and disregard [of] duty in the negligence claim.” Id. Second, according to
Plaintiff, “evidence of [Defendant’s] attempts to harass and intimidate is . . . relevant . . . to
demonstrate that [Defendant] has engaged in a comprehensive plan and pattern of conduct to
cause homeowners to be unable to rent their homes pre-foreclosure when they are still the
homeowner and entitled to physical possession.” Id. Third, Plaintiff maintains that the material
sought “is relevant to establish [that, given] the factual context in which [Defendant] chose to
breach contracts,” their conduct was “not reasonable or necessary, as required in the deed of
trust.” Id. Finally, Plaintiff suggests that, even if not “directly and intrinsically relevant to core
5
issues in [her] case, [the] evidence nevertheless would be admissible at trial under Fed. R. Evid.
404(b)” to show proof of motive, intent, preparation, etc. See id. at 3–4.
In its response to Plaintiff’s motion, Defendant elaborates on its objections to Document
Production Requests Nos. 20 and 22, and, for the first time, focuses on substantive matters,
particularly on the relevance of the material sought to Plaintiff’s claims. See Def.’s Opp’n 5–7.
According to Defendant, the information sought in Document Production Requests Nos. 20 and
22 is irrelevant because “Plaintiff’s claims arise from and are predicated solely upon
[Defendant’s] alleged conduct relative to Plaintiff and her property.” Id. at 5. Consequently,
Defendant argues, its “conduct with respect to property other than that of Plaintiff and its
interactions with other borrowers have absolutely nothing to do with whether [Defendant]
engaged in the tortious conduct alleged by Plaintiff in this case.” Id. (emphasis in original).
Moreover, none of Plaintiff’s claims, Defendant maintains, “require a showing of intent or
knowledge,” as Plaintiff suggests, nor do they “require her to establish a plan or pattern of
conduct to establish liability.” Id. at 5–6. Thus, in Defendant’s view, “Plaintiff’s requests are
nothing more than a fishing expedition.” Id. at 6.
B. Discussion
Plaintiff’s amended complaint, ECF No. 26, as modified by Judge Hollander’s ruling on
Defendant’s Motion to Strike, ECF No. 27; see June 7, 2012 Mem. Op. & Order, ECF Nos. 52 &
53, asserts five causes of action: (1) interference with a business relationship; (2) breach of
contract; (3) trespass to land; (4) unlawful debt collection practices in violation of the Fair Debt
Collection Practice Act, 15 U.S.C. § 1692a; and (5) negligence per se. Am. Compl. ¶¶ 18–61.
Fed. R. Civ. P. 26(b)(1) limits the scope of discovery to “any nonprivileged matter that is
relevant to any party’s claim or defense.” See also Fed. R. Civ. P. 34(a) (stating that document
6
production requests must be “within the scope of Rule 26(b)”). In addition, notwithstanding the
broad scope of discovery permitted by Rule 26(b)(1), Rule 26(b)(2)(C) requires the Court, on
motion or on its own, to limit discovery to insure that it is proportional to what is in dispute in
the litigation. Fed. R. Civ. P. 26(b)(2)(C). See generally Mancia v. Mayflower Textile Servs. Co.,
253 F.R.D. 354 (D. Md. 2008). Consequently, I must determine whether the material sought in
Plaintiff’s Document Production Requests Nos. 20 and 22 is relevant to the causes of action
asserted in the complaint, and, if so, whether Plaintiff should be able to obtain it in light of the
factors stated in Rule 26(b)(2)(C). I consider each claim separately.
1.
Interference With a Business Relationship
Under Maryland law,2 “‘the elements of the tort of wrongful interference with contractual
business relationships [are] (1) intentional and wilful acts; (2) calculated to cause damage to the
plaintiffs in their lawful business; (3) done with the unlawful purpose to cause such damage and
loss, without right or justifiable cause on the part of the defendants (which constitute malice) and
(4) actual damage and loss resulting.’”
Ultrasound Imaging Corp. v. Am. Soc. of Breast
Surgeons, 358 F. Supp. 2d 475, 481 (D. Md. 2005) (quoting Lyon v. Campbell, 707 A.2d 850,
859–60 (Md. Ct. Spec. App. 1998)). According to Plaintiff, information about Defendant’s
relationships and interactions with homeowners or tenants other than Plaintiff is relevant to show
“intent in the intentional interference claim.” Pl.’s Mot. 3. However, to prove this tort, a
plaintiff must show only that the defendant interfered with its business relations and that, as to
the plaintiff, it had malicious intent. Fare Deals Ltd. V. World Choice Travel.Com, Inc., 180 F.
Supp. 2d 678, 691 (D. Md. 2001) (“[T]he plaintiff must show that the defendant specifically
intended to interfere with its business relations; mere ‘incidental’ interference the law takes no
2
Because this case is a diversity action in federal court, Notice of Removal ¶¶ 7–12, Maryland
substantive law applies to the merits of the case. Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938).
7
cognizance of.” (emphasis added) (citing K&K Mgmt., Inc. v. Lee, 557 A.2d 965, 975–77 (Md.
1989))); see Paul Mark Sandler & James K. Archibald, Pleading Causes of Action in Maryland
329 (4th ed. 2008) (“[T]he defendant will not be held liable for tortious interference with
contractual relations if the defendant’s purpose or motive was not directed at the contractual
relations of the plaintiff.” (emphasis added)). Insomuch as Plaintiff’s tortious interference with
business relationship claim requires Plaintiff to prove intentional and willful acts, it cannot be
said that documents showing that Defendant interfered with other tenants living in homes where
the homeowner was in default is entirely irrelevant. That said, however, the information sought
by definition focuses on transactions other than those at issue here. Thus, the relevance is
minimal, particularly because Plaintiff’s request is clearly overbroad, as it contains no time or
geographical limits for the information sought. The same is true regarding her request for the
documents described in Request No. 22. Further, Plaintiff’s disregard for the requirement that
she file a motion to compel within thirty days of receipt of Defendant’s answer objecting to the
requests, and her concomitant disregarding of Discovery Guideline 1.f’s requirement that she
promptly bring this matter to the attention of the Court for resolution strongly suggests that
Plaintiff herself accorded little relevance to this information, or else she certainly would not have
waited nearly ninety days to file her motion when the local rule requires that it be filed within
thirty days. Plaintiff “has had ample opportunity to obtain the information” sought in Requests
Nos. 20 and 22, Fed. R. Civ. P. 26(b)(2)(C)(ii), but failed to timely do so.
2.
Breach of Contract
To prevail in an action for breach of contract under Maryland law, Plaintiff must prove
that Defendant “owed [her] a contractual obligation and that [Defendant] breached that
obligation.” Taylor v. NationsBank, N.A., 776 A.2d 645, 651 (Md. 2001); see also Lemlich v.
8
Bd. of Trs., 385 A.2d 1185, 1189 (Md. 1978) (explaining that the existence of a contractual
obligation requires “an offer by one party and an unconditional acceptance of that precise offer
by the other”); Weiss v. Sheet Metal Fabricators, Inc., 110 A.2d 671, 675 (Md. 1955) (“A breach
of contract is a failure without legal excuse to perform any promise which forms the whole or
part of a contract.”). Information relating to Defendant’s contractual relationships with other
homeowners or tenants is irrelevant to Plaintiff’s breach of contract claim. Rather, the breach of
contract claim centers on Plaintiff’s ability to prove that Defendant owed Plaintiff herself—and
no one else—a contractual obligation and that Defendant breached that obligation.3 See supra.
In addition, the same observations stated by the Court above regarding Plaintiff’s failure to
timely bring the dispute over the documents sought by Requests Nos. 20 and 22 to the Court’s
attention apply equally with respect to her breach of contract claim.
3.
Trespass to Land
Trespass to land occurs under Maryland law “[w]hen a defendant interferes with a
plaintiff’s interest in the exclusive possession of land by entering or causing something to enter
such land.” Adams v. NVR Homes, Inc., 193 F.R.D. 243, 250 (D. Md. 2000) (citing Rosenblatt v.
Exxon, 642 A.2d 180, 189 (Md. 1994)).
Plaintiff maintains that evidence related to past
interactions with other homeowners is “relevant to show malice in the trespass claim.” Pl.’s
Mot. 3. However, intent generally, or malice specifically, is not a necessary element of this tort.4
3
Plaintiff also claims that the material requested “is relevant to establish the factual context” in
which Defendant allegedly breached the contract, which will show that their conduct was “not
reasonable or necessary.” Pl.’s Mot. 3. However, whether Defendant’s conduct was reasonable
or necessary in this case, will be judged based on an analysis of the unique facts of this particular
case—and not based on an analysis of Defendant’s past interactions with unassociated parties.
4
In Maryland, actual malice is necessary to support an award of punitive damages. French v.
Hines, 957 A.2d 1000, 1027 (Md. Ct. Spec. App. 2008). See generally Sandler & Archibald,
supra, at 18–21. The information sought in Document Production Requests Nos. 20 and 22 is
not, however, relevant to establishing actual malice, which is defined in Maryland law as “an evil
9
Sandler & Archibald, supra, at 157 (citing Gore v. Jarrett, 64 A.2d 550, 551 (1949)). Thus, to
establish trespass to land, Plaintiff must show: (1) that Defendant entered or caused something to
enter Plaintiff’s property; and (2) that the entry was not with Plaintiff’s consent. See id. at 156.
Information related to Defendant’s past interactions with other property owners—which Plaintiff
seeks in Requests Nos. 20 and 22—is not relevant to prove these elements. In addition, the
Court’s observations above regarding Plaintiff’s untimely efforts to obtain this evidence are
equally applicable to her trespass to land claim.
4.
Unlawful Debt Collection
Plaintiff’s complaint alleges two violations of the Fair Debt Collection Practices Act. See
Am. Compl. ¶¶ 53–54. First, she alleges that Defendant violated 15 U.S.C. § 1692d, which
provides that “[a] debt collector may not engage in any conduct the natural consequence of
which is to harass, oppress, or abuse any person in connection with the collection of a debt.”
Second, Plaintiff alleges that Defendant violated 15 U.S.C. § 1629e(10), which provides that “[a]
debt collector may not use any false, deceptive, or misleading representation or means in
connection with the collection of any debt,” including “[t]he use of any false representation or
deceptive means to collect or attempt to collect any debt or to obtain information concerning a
consumer.” The documents that Plaintiff seeks in Requests Nos. 20 and 22 have minimal, if any,
relevance to prove these statutory claims. Moreover, as already noted, Plaintiff waited far too
long to file a motion to compel their production.
or rancorous motive influenced by hate, the purpose being to deliberately and willfully injury the
plaintiff.” Roebuck v. Steuart, 544 A.2d 808, 816 (Md. Ct. Spec. App. 1988) (emphasis added).
Defendant’s past relationships or interactions with other homeowners or tenants are not relevant
to determining whether, as to this particular plaintiff, Defendant acted with malice.
10
5.
Negligence Per Se5
Under Maryland law, where an applicable statutory scheme is “designed to protect a class
of persons,” a defendant’s duty may be “prescribed by the statute” so that “violation of the
statute . . . is itself evidence of negligence.” Brooks v. Lewin Realty III, Inc., 835 A.2d 616, 620
(Md. 2003) (citing Brown v. Dermer, 744 A.2d 47, 55 (Md. 2000)). To make out a prima facie
case for negligence under this theory, “all that a plaintiff must show is: (a) the violation of a
statute . . . designed to protect a specific class of persons which includes the plaintiff, and (b) that
the violation proximately caused the injury complained of.” Id. at 621. According to Plaintiff,
Defendant owed her a duty under the Fair Debt Collection Practices Act “to not harass and/or
annoy the tenant” in the rental property. Am. Compl. ¶ 57. Thus, to succeed on her claim,
Plaintiff must show: (1) that she is in the class of persons protected by the statute; (2) that
Defendant violated the statute; and (3) that Defendant’s violation proximately caused the injury
complained of. Proof of these elements does not require any evidence related to Defendant’s
past interactions with other tenants and homeowners not involved in this litigation.6 Therefore,
the documents sought by Plaintiff in requests Nos. 20 and 22 are irrelevant to this claim and, as
noted, Plaintiff delayed far too long in moving to compel their production.
Plaintiff maintains, additionally, that the information sought in Document Production
Requests Nos. 20 and 22 is relevant to prove that Defendant “has engaged in a comprehensive
5
Plaintiff’s claim is perhaps more accurately characterized as a claim of negligence, where
Defendant’s duty is defined by statute. Except under a small number of statutes, violation of a
relevant statute may be evidence of negligence that establishes the existence of a duty owed to
the plaintiff by the defendant, but it “is not negligence per se.” See Sandler & Archibald, supra,
at 182–83 (citing Maurer v. Penn. Nat. Mut. Cas. Ins. Co., 945 A.2d 629, 634 (Md. 2007)).
6
Plaintiff states that the information sought is relevant to showing “knowledge and disregard of
duty in the negligence claim.” Pl.’s Mot. 3. However, where negligence is established by
violation of a statute, the plaintiff need not establish knowledge of a duty of care. Rather, she
must show only that the statute was violated, causing her harm. Brooks, 835 A.2d at 621.
11
plan and pattern of conduct to cause homeowners to be unable to rent their homes preforeclosure when they are still the homeowner and entitled to physical possession.” Pl.’s Mot. 3.
None of Plaintiff’s stated causes of action require proof of this sort of plan or pattern, nor has she
pleaded this in her original or amended complaint. See Fed. R. Civ. P. 26(b)(1) (“Parties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense.”). Accordingly, the documents Plaintiff seeks are irrelevant.
Finally, Plaintiff states that, even if not “directly and intrinsically relevant to core issues
in [her] case, [the] evidence nevertheless would be admissible at trial under Fed. R. Evid.
404(b)” to show proof of motive, intent, preparation, etc. See id. at 3–4. This argument is
without merit for two reasons. First, “[i]rrelevant evidence is not admissible” under the Federal
Rules of Evidence. Fed. R. Evid. 402; see also Fed. R. Evid. 401 (defining relevance). Neither
should it be discoverable.
Second, Plaintiff’s nearly three month delay in seeking the
information sought in Requests Nos. 20 and 22 has waived her objection to their nonproduction.
Loc. R. App. A, Discovery Guideline 1.f.
IV.
CONCLUSION
For the reasons explained above, Plaintiff’s Motion to Compel is DENIED. Defendant is
ORDERED to show cause within fourteen (14) days why it should not be sanctioned pursuant to
Fed. R. Civ. P. 26(g)(3) for its patently deficient responses to Requests Nos. 20 and 22.
Dated: July 27, 2012
/S/
Paul W. Grimm
United States Magistrate Judge
hlw
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?