Branch et al v. Bank of America

Filing 40

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 04/22/2013. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
*
ANN BRANCH, et al.,
*
Plaintiffs,
*
v.

Case No.: PWG-11-3712
*

BANK OF AMERICA,
*
Defendant.
*
*

*

*

*

*

*

*

*

*

*

*

*

*

MEMORANDUM OPINION
This Memorandum Opinion memorializes the rulings made during the April 2, 2013
hearing regarding Defendant Bank of America, N.A.’s Motion for Sanctions or, in the
alternative, to Compel Discovery Responses and Extend Defendant’s Deadline to File
Dispositive Motions, ECF No. 25, and accompanying memorandum in support, ECF No. 25-1;
Plaintiffs Ann and Paul Branch’s Opposition, ECF No. 32, and accompanying memorandum in
support, ECF No. 32-1; and Defendant’s Reply, ECF No. 34. It also addresses Defendant’s
Motion for Summary Judgment, ECF No. 26; Plaintiffs’ Opposition, ECF No. 33; and
Defendant’s Reply, ECF No. 35.

The transcript of the hearing is incorporated herein by

reference. Defendant’s Motion for Sanctions shall be treated as a Motion to Compel and is
hereby GRANTED, as specified on the record and explained in this Memorandum Opinion.
Defendant’s Motion for Summary Judgment is hereby DENIED, without prejudice, subject to
Defendant refilling it not later than fourteen (14) days from the date that it receives complete and
non-evasive discovery responses from Plaintiffs.

I.

BACKGROUND
By way of brief summary, Plaintiffs, formerly married, filed this case against Defendant,

seeking declaratory and injunctive relief regarding the validity of a Deed of Trust to a residential
property that once was their marital home. Compl. ¶¶ 7–16, ECF No. 2. Specifically, Plaintiffs
allege that Defendant filed a Deed of Trust encumbering the property to secure a loan to Plaintiff
Ann Branch, and added Plaintiff Paul Branch’s name and forged signature to the document
without his authorization. Id. ¶¶ 51–52. Pursuant to the original Scheduling Order entered by
Chief Judge Chasanow,1 the original discovery deadline was set for December 13, 2012 and
dispositive motions were due January 14, 2013. See July 31, 2012 Scheduling Order, ECF No.
18. On October 29, 2012, the parties filed a joint motion to extend the deadline to file their Fed.
R. Civ. P. 26(a)(2) disclosures, ECF No. 22, which Judge Chasanow granted, ECF No. 23.
Judge Chasanow’s Order pushed the discovery deadline back to January 14, 2013, but kept the
dispositive motions deadline of January 14, 2013 in effect. October 31, 2012 Paperless Order.
On November 8, 2012, Defendant propounded Fed. R. Civ. P. 33 interrogatories and Fed. R. Civ.
P. 34 requests for production of documents on Plaintiffs. Def.’s Mem. 2. Although Defendant
served a single Rule 33 and 34 request on Plaintiffs jointly, it is undisputed that each was
addressed to both Plaintiffs by name. Interrogs. & Reqs. for Produc. of Docs., Def.’s Mem., Ex.
C, ECF No. 25-4. Plaintiffs’ answers to these discovery requests were due by December 11,
2012. Def.’s Mem. 2. On January 2, 2013, Defendant had not yet received responses from
Plaintiffs and called Plaintiffs’ counsel regarding the overdue discovery responses. Id. After
that telephone conversation, “Defendant then faxed to Plaintiffs’ counsel a good faith letter
requesting that Plaintiffs respond to the Discovery by January 7, 2013.” Id. On January 14,

1

This case was reassigned to the undersigned on December 14, 2012. See Docket.
2

2013, the day on which discovery was to close and dispositive motions were due, having still not
received Plaintiffs’ responses to the outstanding discovery requests, Defendant filed the present
Motion for Sanctions, or in the alternative, to Compel Discovery Responses, as well as a Motion
for Summary Judgment.
In Plaintiffs’ Opposition to Defendant’s Motion for Sanctions, they argue that
Defendant’s Motion is moot because “Plaintiff [sic] has fully complied with the defendant’s
discovery requests.” Pls.’ Mem. 1. This is a misrepresentation of the facts, however, because
during the hearing, it was established that while Plaintiff Ann Branch had served answers, albeit
after the deadline, Plaintiff Paul Branch still had not served answers to Defendant’s Rule 33 and
34 requests, despite the fact that they had been served on him five months earlier. In support of
their argument, Plaintiffs assert that “lead counsel” for Defendant, Brandon Williams, based in
Charlotte, North Carolina,2 told Plaintiffs’ counsel that Defendant would accept Plaintiffs’

2

Defendant is represented by the law firm of McGuire Woods LLP (“the Firm”). Mr. Williams,
whom Plaintiffs’ counsel referred to as Defendant’s “lead counsel” in Plaintiffs’ Opposition to
Defendant’s Motion for Sanctions, see Pls.’ Mem. 2, works out of the Firm’s Charlotte office
and has not entered his appearance in this case. At the hearing, Defendant was represented by
Craig Haughton, an attorney with the Firm’s Baltimore office. Mr. Haughton is the only
counsel of record and was the attorney who propounded Defendant’s discovery requests upon
Plaintiffs’ counsel. While Defendant disputed the accuracy of Plaintiffs’ counsel’s assertion
that Mr. Williams had agreed to accept Plaintiffs’ long overdue discovery responses on January
14, the day of the discovery cutoff and the day on which dispositive motions were due,
Defendant did not file an affidavit from Mr. Williams denying Plaintiffs’ assertion.
Accordingly, the record is unclear regarding whether Mr. Williams agreed to accept the
discovery on January 14. What is clear is that it would make little sense for Mr. Williams, who
has not entered his appearance and who has not signed any pleadings, discovery requests, or
motions papers that Defendant has filed, to have agreed to accept discovery responses on the
day on which dispositive motions were required to be filed, because the answers would be
received too late to be of any use in Defendant’s Motion for Summary Judgment. Further, it is
quite clear that even if Mr. Williams had agreed to accept Plaintiffs’ responses on January 14,
Plaintiffs failed to comply with that agreement with respect to Plaintiff Paul Branch’s
responses, which had not be served even as late as April 2, 2013, the date of the hearing.
Def.’s Reply 1–3. Given the fact that the outcome of this action apparently turns on whether
Plaintiff Paul Branch signed the Deed of Trust, the failure to provide his answers to Rule 33
3

discovery responses on January 14, 2013 and not on January 7, 2013, as demanded by Defendant
on January 2, 2013. Id. at 2. Thus, Plaintiffs contend that because they served the outstanding
discovery on Defendant on January 14, 2013, within the allegedly agreed-upon deadline for
doing so, they have fully complied with Defendant’s discovery requests.

Pls.’ Mem. 5.

Plaintiffs’ counsel reiterated this argument at the April 2, 2013 hearing.
II.

DISCUSSION
At the outset, the Court need not resolve the factual dispute as to the day in which

counsel agreed to send and receive the discovery responses—Even if Mr. Williams agreed to
accept the responses on January 14, 2013, Plaintiff Ann Branch’s responses did not arrive until
January 17, 2013, and as of April 2, 2013, Plaintiff Paul Branch had not responded at all. Thus,
Plaintiffs failed to serve on Defendant their Rule 33 and 34 discovery responses in a timely
fashion, despite counsel for Defendant’s affording them a generous extension of time in which to
do so. Plaintiffs’ failure to respond necessitated Defendant’s Motion, and the Court shall treat it
as a Motion to Compel. See Fed. R. Civ. P. 1 (requiring the Court to construe the rules of
procedure “to secure the just, speedy, and inexpensive determination of every action and
proceeding”); see also Monge v. Portofino Ristorante, 751 F. Supp. 2d 789, 792 n.1 (D. Md.
2010) (explaining that Rule 1 instructs the Court “not [to] exalt form over substance”); Hall v.
Sullivan, 229 F.R.D. 501, 504 (D. Md. 2005) (same).  

and 34 discovery unquestionably was prejudicial to Defendant. Finally, the accuracy of
Plaintiffs’ claim that they fulfilled their agreement to provide discovery to Defendant on
January 14 is belied by the fact that Plaintiff Ann Branch’s responses were not delivered to
Defendant until January 17, and Plaintiff Paul Branch’s were never delivered. See id. at 2–3.

4

Under Fed. R. Civ. P. 37, a “party seeking discovery may move for an order compelling”
discovery responses if the opposing party fails to respond to a discovery request. Fed. R. Civ. P.
37(a)(3)(B). Further, Rule 37(a)(5)(A) states, relevantly: 
If the motion [to compel discovery] is granted—or if the disclosure or requested
discovery is provided after the motion was filed—the court must, after giving an
opportunity to be heard, require the party . . . whose conduct necessitated the
motion, the party or attorney advising that conduct, or both to pay the movant’s
reasonable expenses incurred in making the motion, including attorney’s fees.
Id. Thus, under the rule, if the motion to compel is granted or, as occurred here, the responses
are provided after the filing of a motion to compel, sanctions are mandatory, unless: “(i) the
movant filed the motion before attempting in good faith to obtain the disclosure or discovery
without court action; (ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or (iii) other circumstances make an award of expenses unjust.” Id.
With regard to the first exception, Defendant clearly made a good faith effort to obtain
the discovery without court action, as Rule 37(a)(5)(A)(i) and this Court’s Local Rules require.
See Fed. R. Civ. P. 37(a)(5)(A)(i); Loc. R. 104.7 (“Counsel shall confer with one another
concerning a discovery dispute and make sincere attempts to resolve the differences between
them.”); Loc. R. 104.8 (“Counsel are encouraged to confer with one another before or
immediately after a motion to compel is served. If they are unable to resolve their disputes,
counsel must hold the conference required by [Local Rule] 104.7 after serving upon one another
all of the documents relating to the motion to compel.”). Defendant’s Certificate of Good Faith,
see Fed. R. Civ. P. 37(a)(2); Loc. R. 104.7, details its attempts to secure discovery from Plaintiffs
after the deadline for submitting discovery responses had passed. See Certificate of Good Faith
Effort to Resolve a Discovery Dispute, Def.’s Mem., Ex. E, ECF No. 25-6.

5

With regard to the second exception identified in Rule 37(a)(5)(A)(ii), Plaintiffs’ belated
discovery responses were not substantially justified.

A party satisfies the “substantially

justified” standard “if there is a ‘genuine dispute’ as to proper resolution or if ‘a reasonable
person could think [that the failure to produce discovery is] correct, that is, if it has a reasonable
basis in law and fact.’” Decision Insights, Inc. v. Sentia Grp., Inc., 311 Fed. App’x 586, 599 (4th
Cir. 2009) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “Courts have concluded
that ‘substantial justification’ could include making meritorious objections to requested
discovery, or even engaging in a legitimate dispute over the sequence of discovery.” Kemp v.
Harris, 263 F.R.D. 293, 296–97 (D. Md. 2009) (citations omitted). However, to avoid the
imposition of costs, “parties must sufficiently argue that they were substantially justified in their
actions.” Id. at 297 (citing Humphreys Exterminating Co. v. Poulter, 62 F.R.D. 392, 394 (D.
Md. 1974)).

Plaintiffs do not provide any legitimate justification—let alone a substantial

justification—as to why Plaintiff Ann Branch’s discovery responses were not provided to
Defendant until January 17, 2013, over a month after the deadline for their submission, and why
Plaintiff Paul Branch’s discovery responses were not provided at all. At the hearing, counsel for
Plaintiffs argued that Plaintiff Ann Branch’s responses, signed only by Plaintiff Ann Branch,
also constituted Plaintiff Paul Branch’s responses.

This argument wishes away the clear

provisions of Rule 33, which states that “[t]he person who makes the answers must sign them.”
Additionally, the proffered excuse that the interrogatory responses were not signed by Plaintiff
Paul Branch because he was traveling and not available the day they were due falls far short of
substantial justification. See McDougall v. Dunn, 468 F.2d 468, 472 (4th Cir. 1972) (holding
that Rule 33 “states categorically that . . . interrogatories addressed to an individual party must be
answered by that party” and that it is “no exception because a party lives at a distance from his

6

counsel”) (internal quotation marks omitted); Walls v. Paulson, 250 F.R.D. 48 (D.D.C. 2008)
(stating that the signature requirement of Rule 33 is mandatory); Cabrales v. United States, 51
F.R.D. 498 (S.D.N.Y. 1970) (holding that a seaman who was unavailable to sign his
interrogatory responses when they were drafted did not excuse him from the mandatory signature
requirement and ordering the seaman to answer the interrogatories). The fact that Plaintiff Paul
Branch may have been unavailable in early January 2013 entirely fails to account for why he
could not have signed his responses between November 8, 2012, when they were served, and
January 2013, nor does it account for why he did not sign them prior to the hearing on April 2,
2013. The record is clear, therefore, that Plaintiffs have failed to demonstrate that their failure to
provide discovery was substantially justified.
Finally, with regard to the third exception identified in Rule 37, Plaintiffs have not
presented evidence of “other circumstances” that would “make an award of expenses unjust.”
See Fed. R. Civ. P. 37(a)(5)(A)(iii). At the hearing, counsel for Plaintiffs argued that because
Defendant did not request attorney’s fees for the filing of its Motion for Sanctions, it would be an
“abuse of discretion” for the Court to award them. This argument disregards the clear text of
Rule 37(a)(5)(A), which mandates the award of attorney’s fees when the Court grants a motion
to compel and the failure to provide the discovery was not substantially justified, nor the
imposition of sanctions unjust. See Charles Alan Wright, Arthur R. Miller & Richard L. Marcus,
Federal Practice and Procedure § 2288 (3d ed. 2010) (“The great operative principle of Rule
37(a)(5) is that the loser pays. If a motion under Rule 37(a)(3) . . . is granted, or if the requested
discovery or disclosure is only provided after the motion has been filed, the party or deponent
whose conduct necessitated the motion shall be required to pay to the moving party the
reasonable expenses, including attorney’s fees, incurred in obtaining the order.”) (emphasis

7

added). Because none of the exceptions stated in Rule 37 apply, and because “reasonable
expenses incurred in making the motion, including attorney’s fees,” are otherwise mandatory
where, as here, the requested discovery is not provided until after a motion to compel is filed,
fees must be awarded to Defendant. See Fed. R. Civ. P. 37(a)(5)(A). Defendant is AWARDED
the reasonable expenses and fees, as described below, related to the filing of the instant Motion
for Sanctions, or in alternative, to Compel Discovery Responses. For the reasons stated below,
however, I find that it is Plaintiffs’ counsel, not Plaintiffs themselves, who must pay Defendant’s
reasonable expenses incurred in making the Motion for Sanctions.

See Fed. R. Civ. P.

37(a)(5)(A).
As noted, I have determined that the argument by Plaintiffs’ counsel that Defendant’s
Motion for Sanctions was “moot” because Plaintiffs had “fully complied with the defendant’s
discovery requests,” Pls.’ Mem. 1, significantly misrepresented the true facts, namely that
Plaintiff Paul Branch had not provided executed Rule 33 and 34 responses as was required.
Moreover, the argument by Plaintiffs’ counsel that Plaintiff Ann Branch’s signature on her
interrogatory answers was all that was required is disingenuous in light of the clear requirements
of Rule 33(b)(1)(A) that Plaintiff Paul Branch, an individual Plaintiff to whom Defendant’s
interrogatories were directed, also provide signed answers.

Given the importance of Plaintiff

Paul Branch as an essential witness on the disputed critical issue of whether he signed the Deed
of Trust, the failure to provide sworn interrogatory answers was highly prejudicial to Defendant.
For these reasons, I find that the award of reasonable costs appropriately should be borne by
Plaintiffs’ attorney, as Rule 37(a)(5)(A) permits.

8

III.

CONCLUSION
In light of the foregoing, Defendant’s Motion for Sanctions, or in the alternative, to

Compel Discovery Responses, is hereby GRANTED. Plaintiff Paul Branch shall serve on
Defendant signed Rule 33 and 34 discovery responses no later than April 24, 2013.
Additionally, in accordance with the rulings made on April 2, 2013, Defendant has provided to
Plaintiffs’ counsel a list of the outstanding information and/or documentation it seeks. See April
12, 2013 Joint Status Report, ECF No. 38. Plaintiffs shall provide the remaining documentation
to Defendant no later than April 26, 2013.

As discovery has concluded, this is the only

additional discovery that shall be permitted. Additionally, because Plaintiffs have not made any
Fed. R. Civ. P. 26(a)(2) disclosures and have indicated that they have “elected not to employ an
[e]xpert [w]itness to address the fraudulent signature shown on the Deed of Trust,” Plaintiffs
shall be precluded from offering on a motion, at a hearing, or at trial the testimony of a witness
for whom a Rule 26(a)(2) disclosure was required. See Fed. R. Civ. P. 37(c)(1).
Next, Defendant filed a Motion for Summary Judgment on January 14, 2013. However,
as Defendant filed this motion without the benefit of having received Plaintiffs’ discovery
responses, Defendant’s Motion for Summary Judgment is hereby DENIED, without prejudice,
subject to Defendant refilling it not later than fourteen (14) days from the date that it receives
complete and non-evasive discovery responses from Plaintiffs.
Also, in accordance with the rulings made on April 2, 2013, Defendant has filed an
itemized request for attorney’s fees and expenses. Plaintiffs’ counsel may file any objections to
the reasonableness of Defendant’s fee and cost assessment no later than April 22, 2013. His
objections also may include any additional facts which would demonstrate that an order that he
pay the attorney’s fees and expenses would impose an unreasonable financial burden on him,
9

rendering them unjust. Plaintiffs’ counsel is cautioned that this is not an opportunity for him to
reargue what already was said, or argue what could have been argued at the hearing, but was not.
Rather, it is an opportunity for him to provide any information why the imposition of reasonable
costs might impose an unfair financial burden. Defendant may file a response to Plaintiffs’
counsel’s objections, if any, no later than April 30, 2013.
A separate Order shall be issued concurrently with this Memorandum Opinion.
Dated: April 22, 2013

__________/s/__________
Paul W. Grimm
United States District Judge

mol

10