Sykes v. RBS Citizens, N.A., et al

Filing 92

ORDER terminating as moot 82 Motion for Protective Order and to Continue Defendants' Time to Respond to Plaintiff's Motion for Summary Judgment; denying 84 Motion to Compel Responses from Fannie Mae, CCO Mortgage a nd RBS Citizens; denying 85 Motion to Compel Responses from New England Coastal Realty, Inc.; denying 86 Motion to Compel Responses from Bank of America and Bank of New York Mellon; denying 91 Motion to Compel Defendants with Court Applied Sanc tions to respond to Plaintiff's 7 served and still open Discovery sets. Motion for Summary Judgment 76 stayed pending schedule to be set upon amended discovery plan(s) - due 4/24/15. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lewis B. Sykes, Jr.
v.

Civil No. 13-cv-334-JD
Opinion No. 2015 DNH 060

RBS Citizens, N.A., et al.
O R D E R
Lewis B. Sykes, Jr. brought suit in state court against RBS
Citizens, N.A.; CCO Mortgage Corporation; Federal National
Mortgage Association; Bank of America, N.A.; Bank of New York
Mellon; and Citibank, N.A., alleging claims that arose from the
defendants’ involvement in the circumstances surrounding the
foreclosure sale of his home in 2009.1

Bank of America removed

the case to this court and moved to dismiss Sykes’s claims.
Sykes was granted leave to file an amended complaint that was
filed on March 26, 2014.2

The discovery plan was approved on May

16, 2014.

1Default

was entered as to Citibank, N.A. on January 6,

2014.
2In

their motion to dismiss and in opposition to the motion
for leave to amend, the defendants argued that Sykes’s claims
were barred by the statute of limitations. Sykes responded that
the limitations period was tolled due to his mental incompetence
following the loss of his home. The court concluded that issue
of Sykes’s mental competence could not be resolved in the
context of a futility analysis for purposes of the motion to
amend and that the issue should be addressed in a motion for
summary judgment.

Sykes’s motion for leave to file a second amended complaint was
granted on May 20, 2014.

Bank of America and Bank of New York

Mellon moved to dismiss the second amended complaint, and Sykes
again moved for leave to amend the complaint.

The court allowed

the third amended complaint, except for claims seeking enhanced
compensatory damages.
In December of 2014, the court granted a motion to allow
Sykes’s counsel to withdraw.
appear pro se.

Sykes then filed his notice to

On January 13, 2015, Sykes filed a motion for

summary judgment to address the statute of limitations and the
issue of his mental competence.

The defendants moved to extend

for thirty days the time allowed to file their objections to the
motion for summary judgment because of counsel’s schedule.

The

motion was granted.
On March 5, 2015, the defendants filed a motion for a
protective order and to extend, again, the deadline for their
response to the motion for summary judgment.

In support, the

defendants represent that defendants’ counsel had reached an
agreement with Sykes’s counsel, before Sykes’s counsel withdrew,
to stay discovery except discovery to address the issue of

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mental competence.3

The defendants state that they have not yet

had an opportunity to depose Sykes or his mental health
professionals.

They contend that Sykes served interrogatories

on them that are unrelated to the issue of his mental
incompetence, which are barred by the agreement.
Sykes has filed four motions to compel responses to his
interrogatories.

The fourth motion appears to raise issues

about circumstances not relevant to the present discovery
dispute.

The defendants have filed objections to Sykes’s first

three motions to compel.

Sykes did not file an objection to the

defendants’ motion for a protective order.4

3In

support, the defendants submit a copy of an email dated
October 30, 2014, from “Sandra Merrigan” to [e-mail];
[e-mail] with “Cc:” to a list of people, including
defendants’ counsel. The email begins “Terrie:” and states:
“This e-mail will confirm that all parties agree to extend the
deadline to respond to any outstanding discovery requests until
30 days after the court rules on whether Mr. Sykes was competent
for purposes of the statute of limitations, with the exception
of any discovery related to Mr. Sykes’ competency.” The email
also says that any party can terminate the extension agreement
“with a 30-day written notice to other parties.”
4Sykes

filed a copy of a letter that he sent to defendants’
counsel in which he explained that he would not consent to the
motion for a protective order. The letter, however, is not an
objection to the motion.
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Discussion
In its present state, this case has fallen far off course.
Under the discovery plan approved by the court on May 15, 2014,
interrogatories were due from the plaintiff by September 1,
2014, and from the defendants by October 1, 2014.

Experts were

to be disclosed, under the requirements of Federal Rule of Civil
Procedure 26(a)(2), by Sykes on or before January 1, 2015, and
by the defendants on or before April 1, 2015.
motions were due by March 1, 2014.

Summary judgment

All discovery will close on

May 1, 2015.
Sykes’s interrogatories, which are the subject of his
motions to compel, are dated February 4, 2015.

As such, the

interrogatories were promulgated long after the September 1,
2014, deadline.

Therefore, the interrogatories were untimely

under the discovery plan and are not enforceable.
The defendants do not explain how they intend to complete
the depositions they assert are required before May 1, 2015.
The summary judgment deadline has passed.

Further, the

defendants are relying on an agreement made with Sykes’s former
counsel to alter the discovery dates that was made without court
approval.

See Fed. R. Civ. P. 16(b)(4); LR 16.4.

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To avoid further confusion and delay, the parties shall
file a joint motion to amend the discovery plan with appropriate
deadlines to address the issues in this case.

For that purpose,

the defendants’ counsel shall jointly propose an amended
discovery plan to Sykes, and Sykes shall either join in the
proposed amended discovery plan or notify the defendants that he
will not join.

The parties will then either file the agreed-to

joint proposed discovery plan or file separate proposed amended
discovery plans.

To be clear, Sykes shall either notify the

defendants that he will join in the defendants’ joint proposed
amended discovery plan OR file his own separate proposed amended
discovery plan.

The court will issue an order setting an

amended discovery plan, and the case will proceed according to
that schedule.

Conclusion
For the foregoing reasons, the plaintiff’s motions to
compel (documents nos. 84, 85, 86, and 91) are denied.

The

defendants’ motion for a protective order (document no. 82) is
terminated as moot in light of this order.
The plaintiff’s motion for summary judgment (document no.
76) is stayed, pending the schedule to be set in the order on

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the amended discovery plan that will include a date for the
defendants’ responses to the motion.
The defendants shall serve their joint proposed amended
discovery plan on the plaintiff on or before April 10, 2015.
The plaintiff shall notify the defendants whether he will
join the proposed amended discovery plan on or before April 17,
2015.
The parties shall file their joint proposed amended
discovery plan or separate proposed amended discovery plans, if
necessary, on or before April 24, 2015.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
March 23, 2015
cc:

Andrea Lasker, Esq.
Robert E. Murphy, Jr., Esq.
Thomas J. Pappas, Esq.
Lewis B. Sykes, Jr., pro se

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