Drouin, et al v. American Home Mortgage Servicing, Inc., et al
Filing
54
ORDER granting in part and denying in part 52 Motion to Compel Discovery; striking 53 Motion to Compel More Complete Discovery Answers. Option One shall provide further responses as outlined on or before February 12, 2013. Plaintiffs may seek reimbursement of attorney's fees as outlined on or before March 1, 2013. The parties are advised that any future failure to observe the court's July 26, 2012 order will be met with sanctions. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Michael Drouin et al.
v.
Civil No. 11-cv-596-JL
American Home Mortgage
Servicing, Inc., et al.
O R D E R
Despite this court’s best efforts, the parties in this case
are apparently incapable of observing this court’s order of July
26, 2012, which set forth the court’s standard discovery dispute
resolution procedure.
Plaintiffs Michael and Kathleen Drouin, in
violation of that order, have filed a motion to compel discovery
from defendants Wells Fargo Bank, N.A. and Option One Mortgage
Corporation, asserting that those defendants have refused to
answer, or provide complete answers to, certain of the Drouins’
interrogatories.
The Drouins’ motion comes hard on the heels of
Wells Fargo’s own discovery motion, which was also filed in
violation of the July 26, 2012 order–-as the court specifically
noted in its order on that motion (albeit too subtly for counsel
to notice, it would seem).
See Order of Jan. 23, 2013.
Notwithstanding plaintiffs’ failure to comply with that
order, the court is compelled to address their motion (as it did
Wells Fargo’s) in light of the recent close of discovery and
defendants’ recently-filed motion for summary judgment.
For the
reasons that follow, the court orders Option One, but not Wells
Fargo, to provide further discovery responses.
The court also
assesses sanctions for Option One’s noncompliance with an earlier
order of this court.
I.
Wells Fargo’s interrogatory responses
Plaintiffs’ motion to compel further interrogatory responses
from Wells Fargo comes too late.
This court held a conference
call on January 22, 2013–-nearly two weeks after the close of
discovery on January 11--to address Wells Fargo’s discovery
motion.
Prior to that call, the parties, including plaintiffs,
submitted written statements setting forth unresolved issues they
wished to bring to the court’s attention.
Though plaintiffs’
statement was particularly lengthy, it did not suggest that Wells
Fargo’s interrogatory responses were incomplete or objectionable,
although Wells Fargo had provided those responses to plaintiffs
several days beforehand.
To be sure, plaintiffs’ statement noted
that Wells Fargo’s responses were “laden with objections.”
But
it did not seek any relief on that basis.
On the conference call, the court explicitly asked the
parties if there were any further issues that would require the
court’s intervention.
That would have been a particularly
opportune time for plaintiffs to raise the issues now presented
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in their motion, given that a good deal of the call was devoted
to similar issues.
Provided with this opportunity, however,
plaintiffs again remained silent on the issue of Wells Fargo’s
interrogatory responses.
The court cannot interpret plaintiffs’ previous silence on
this issue, coming well after the close of discovery in this
case, as anything but an acceptance of Wells Fargo’s responses as
sufficient.
Nor can the court interpret plaintiffs’ belated
attempt to inject new discovery issues into this case as anything
but an attempt to further delay the resolution of this action.
Wells Fargo will not be ordered to provide further responses to
plaintiffs’ interrogatories (though the court encourages Wells
Fargo to attempt to reach a mutually-agreeable resolution with
plaintiffs).
If plaintiffs desire responses to the questions posed in
their interrogatories, they may naturally pose those questions to
Wells Fargo’s Rule 30(b)(6) deposition designee if they wish.
To
the extent the questions are not covered by any of the designated
deposition topics, however, Wells Fargo’s designee need only
answer them to the best of his or her individual knowledge.
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II.
Option One’s interrogatory responses
Insofar as plaintiffs’ motion seeks to compel further
discovery responses from Option One, it stands on considerably
firmer ground.
Plaintiffs could not have raised concerns about
Option One’s interrogatory responses on the January 22 conference
call because Option One did not provide those responses until
January 25 (conduct which, as discussed in the following section,
warrants sanctions).
motion has some merit.
And substantively speaking, plaintiffs’
Among other things, as plaintiffs note,
in its responses Option One has apparently conflated “Option One
Mortgage Corporation” with “Option One Mortgage Acceptance
Corporation” (or “OOMAC”), and has not provided independent
responses to interrogatories that inquire about the latter
entity.
In light of this and other apparent deficiencies in
Option One’s responses, and after careful consideration of the
arguments set forth in plaintiffs’ motion, the court rules as
follows:
•
Option One need not provide further responses to Kathleen
Drouin’s interrogatories 1-4 and 8-13 or Michael Drouin’s
interrogatories 1-9, 11-14, and 16-20. Taking into account
Option One’s objections, which the court finds, for the most
part, well-founded, Option One appears to have provided
sufficient responses to these interrogatories.
•
Option One shall provide further responses to Kathleen
Drouin’s interrogatories 5-7 on or before February 12, 2013.
As just noted, Option One’s responses to those
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interrogatories apparently conflate Option One Mortgage
Corporation with OOMAC.
•
Option One shall also provide further responses to Michael
Drouin’s interrogatories 10 and 15 on or before February 12,
2013. When responding to interrogatory 10, Option One need
not provide any of the information requested after the
clause “if still applicable,” for the reasons stated in
Option One’s objection to that interrogatory. When
responding to interrogatory 15, Option One need not provide
any of the information requested after the clause “to any
other person or entity,” for the reasons stated in Option
One’s objection to that interrogatory.
III. Option One’s noncompliance with this court’s orders
On December 6, 2012, plaintiffs filed a motion to enlarge
the discovery deadline, citing defendants’ lack of cooperation in
discovery.
The court promptly scheduled a conference call to
address plaintiffs’ motion.
During the call, Option One conceded
that it had not provided any responses to plaintiffs’ discovery
requests, although the time for doing so under the Federal Rules
of Civil Procedure had already elapsed.
Resultantly, on December
10, 2012, this court ordered Option One to respond to plaintiffs’
discovery requests on or before January 11, 2013.
On the January 22, 2013 conference call this court held to
address Wells Fargo’s discovery motion, Option One acknowledged
that it had not yet responded to plaintiffs’ discovery requests,
in contravention of the court’s December 10 order.
The court
therefore ordered Option One to file a memorandum by January 31,
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2013, showing cause why its noncompliance with that order should
not be sanctioned under Federal Rule of Civil Procedure 37(b)(2).
Option One did not do so, which the court takes as a tacit
acknowledgment that sanctions are appropriate.
Rule 37(b)(2) identifies a number of possible sanctions for
a party’s failure to obey a court order.
In the present case,
the court believes the sanction suggested by Rule 37(b)(2)(C) is
most appropriate:
Option One should be ordered to pay
plaintiffs’ “reasonable expenses, including attorney’s fees,
caused by [its] failure.”
Accordingly, if plaintiffs wish to
have those expenses reimbursed, they shall, on or before March 1,
2013, file a memorandum, supported by affidavit, identifying any
attorney’s fees or other expenses they incurred as a result of
Option One’s disobedience of the court’s December 10, 2012 order.
If it objects to plaintiffs’ submission, Option One shall file a
response within seven (7) days of plaintiffs’ filing.
Neither
party’s memorandum shall exceed ten (10) pages; no reply
memoranda will be accepted.
IV.
Conclusion
Plaintiffs’ motion to compel discovery (doc. no. 52) is
GRANTED in part and DENIED in part.
As set forth above, Option
One shall provide further responses to Kathleen Drouin’s
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interrogatories 5-7 and Michael Drouin’s interrogatories 10 and
15 on or before February 12, 2013.
As further outlined above,
plaintiffs may, at their option, file a memorandum on or before
March 1, 2013, seeking reimbursement of any attorney’s fees or
other expenses they incurred as a result of Option One’s
disobedience of the court’s December 10, 2012 order.
Plaintiffs’
identical motion filed today (doc. no. 53) is stricken.
The parties are advised that any future failure to observe
the court’s July 26, 2012 order will be met with sanctions.
SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:
February 5, 2013
Robert M.A. Nadeau, Esq.
Paula-Lee Chambers, Esq.
Geoffrey M. Coan, Esq.
Thomas C. Tretter, Esq.
Victor Manougian, Esq.
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