U.S. Bank National Association v. Viola et al

Filing 75

Opinion & Order signed by Judge James S. Gwin on 8/24/17 denying defendant Anthony L. Viola's motion to compel discovery for the reasons set forth in this order. (Related Doc. 68 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------:
U.S. BANK NATIONAL ASSOCIATION, :
:
Plaintiff,
:
:
vs.
:
:
ANTHONY L. VIOLA, ET AL.,
:
:
Defendants.
:
:
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CASE NO. 1:16-CV-969

OPINION & ORDER
[Resolving Doc. 68]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this foreclosure action,1 Defendant Anthony Viola moves the Court to compel
discovery by Plaintiff U.S. Bank and Defendant United States.2 Viola seeks numerous
documents and admissions from his opposing parties. Both Plaintiff U.S. Bank and Defendant
United States filed oppose Viola’s motion to compel discovery.3 For the reasons stated below,
the Court DENIES Defendant Viola’s motion.
I. Background
In 2011, a federal jury convicted Viola of two counts of conspiracy to commit wire fraud
in violation of 18 U.S.C. § 371 and thirty-three counts of wire fraud in violation of 18 U.S.C. §
1343. The Court sentenced the Defendant to 150 months in prison and ordered him to pay
$2,649,865 in restitution. The Sixth Circuit affirmed his conviction and sentence. In 2012, a
state-court jury acquitted Viola of charges similar to those in his federal trial.
On February 24, 2016, Plaintiff U.S. Bank filed a complaint for foreclosure in the
Cuyahoga County Court of Common Pleas alleging a breach of a promissory note and mortgage

1

See Doc. 1-1.
Doc. 68.
3
Doc. 70 (U.S. Bank); Doc. 71 (United States).
2

Case No. 1:16-cv-00969
Gwin, J.
given by Viola.4 The complaint named the United States as a defendant because the United
States had filed a tax lien that attached to the property at issue. The United States subsequently
removed that complaint to federal court.5
In March and June of 2017, Viola sought a number of admissions and documents from
Defendant United States and Plaintiff U.S. Bank.6 Both the United States and U.S. Bank refused
to substantively respond to the majority of Viola’s requests.7 The United States provided the only
substantive response, and gave Viola an itemized accounting of the criminal case restitution that
he had paid, as well as a non-itemized accounting of the total amount of restitution paid in that
same case.8
On July 13, 2017, Defendant Viola filed a motion to compel U.S. Bank and the United
States to comply with his March 2017 and June 2017 discovery requests.9 On July 24 and 25,
2017, respectively, U.S. Bank10 and the United States11 filed motions opposing Viola’s motion to
compel. They argue that Viola’s requests were irrelevant, procedurally improper, and an attempt
to gain information in order to collaterally attack his federal criminal conviction.
II. Discussion
Parties may obtain discovery as to any unprivileged matter relevant to any party's claim or
defense and proportional to the needs of the case.12

4

Doc. 1-1.
Doc. 1.
6
See Doc. 71-1 at 1-3 (request for documents from United States); Doc. 70-2 at 2-5 (request for
admissions from U.S. Bank)
7
See generally Docs. 70, 71.
8
Doc. 71-2 at 2, 5-6.
9
Doc. 68.
10
Doc. 70.
11
Doc. 71.
5

12

Fed. R. Civ. P. 26(b)(1).

Case No. 1:16-cv-00969
Gwin, J.
A. Viola’s March Request for Production of Documents
In March of 2017, Viola requested documents from the government.13 Viola sought, among
other documents: records of restitution payments made by various criminal defendants in Viola’s
criminal case, payments allegedly made by the federal government to an individual not involved
in this case, records of restitution received by banks that are not party to this foreclosure, and
records of restitution payments allegedly made by individuals indicted in a state criminal
proceeding.14
In response, the United States provided Viola with an accounting of the total amount of
restitution paid on the restitution order from Viola’s criminal conviction, and with documents
describing the amount of restitution Viola himself paid on that order.15
The discovery that the United States provided in response to Viola’s request is sufficient.
Defendant Viola is entitled to know the amount he has paid, and the total amount paid, on his
restitution order thus far. These pieces of information are potentially relevant to Viola’s defense
against the United States’ interest in this foreclosure action. The United States has provided this
information to Viola.
Defendant Viola is not, however, entitled to discovery on restitution payments made in other,
unrelated, cases. Viola is also not entitled to discovery on matters and theories intended to
collaterally attack the validity of his criminal conviction and restitution order. Neither of these
subjects are “relevant to [Viola’s] claim or defense” in this foreclosure action.16

13

Doc. 68 at 3. Defendant Viola states that he made requests for production of documents and for
admissions of both U.S. Bank and the United States, but those parties only have records of receiving one
communication from Viola. U.S. Bank received a June 2017 request for admissions, and the United States
received a March 2017 request for production of documents.
14
See Doc. 71-1 at 2-3.
15
Doc. 71-2 at 2.
16
Fed. R. Civ. P. 26(b). Viola essentially admits in his motion to compel that his ultimate goal for this
discovery is a collateral attack on his conviction and restitution order. He states in that motion that
“[d]iscovery requests to the government and to U.S. Bank have been limited to . . . the fact that the

Case No. 1:16-cv-00969
Gwin, J.
B. Viola’s June Request for Admissions
In a letter dated June 19, 2017, Defendant Viola sent a request for admissions to Plaintiff
U.S. Bank.17 All of these requests dealt with properties unrelated to this action, legal theories
unrelated to foreclosure, or entities not involved in this action.18 Because none of these requests
dealt with discovery related to this foreclosure action, the Court will not compel Plaintiff U.S.
Bank to respond.
Beyond the fact that Viola’s requests were unrelated to this action, the Court notes that U.S.
Bank was also not required to respond to Defendant Viola’s requests because the time to respond
would extend past the close of discovery. The Court set a date of July 10, 2017 for the close of
discovery.19 Federal Rule of Civil Procedure 36(a)(3) allows a party 30 days to respond to a
request for an admission.20 In order to comply with both the Court’s deadline and the Federal
Rules, Viola needed to send his request for admissions by June 10, 2017.21 Because he neither
complied with the Court’s deadline nor sought an extension of that deadline, his request was
improper.

government possesses proof of my innocence . . . but failed to provide” that proof to him, and that he
“intends on filing a motion to vacate the government’s lien” after discovery. Doc. 68 at 3.
17
Doc. 70-2.
18
Doc. 70-2 at 2-4.
19
See Doc. 50.
20
Fed. R. Civ. P. 36(a)(3).
21
See Gluck v. Ansett Austl. Ltd., 204 F.R.D. 217, 219-20 (D.D.C. 2001). See also 8B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2257 (3d ed. Apr. 2017 Update).

Case No. 1:16-cv-00969
Gwin, J.
III. Conclusion
For the foregoing reasons, the Court DENIES Defendant Viola’s motion to compel
discovery.

IT IS SO ORDERED.

Dated: August 24, 2017

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE