Boddie v. PNC Bank, NA et al
Filing
53
ORDER denying 40 Motion to Stay; denying 48 Motion to Quash; denying 27 Motion to Compel. Signed by Magistrate Judge Terence P Kemp on 1/31/13. (jr1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Karen Boddie,
Plaintiff,
v.
:
:
:
Case No. 2:12-cv-158
:
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
PNC Bank, NA, et al.,
Defendants.
:
OPINION AND ORDER
This matter is before the Court to consider several
discovery motions, including a motion to compel filed by
plaintiff Karen Boddie (Doc. #27), a motion to stay discovery
filed by defendant PNC Bank, N.A. (“PNC Bank”) (Doc. #40), and a
motion to quash filed by Ms. Boddie (Doc. #48).
For the reasons
set forth below, all of these motions will be denied.
I. Background
This case involves a dispute over plaintiff Karen Boddie’s
attempt to engage in a specific banking transaction at the Bexley
Branch of PNC Bank on July 30, 2011.
Believing that she had been
prevented from completing the transaction as she requested due to
her race and that she was otherwise mistreated by bank employees,
Ms. Boddie filed an eleven-count complaint against both PNC Bank
and PNC Financial Services Group, Inc. (“PNC Financial”).
II. Discussion
Because a stay of discovery would effectively moot the
motion to compel and the motion to quash, the Court addresses the
motion to stay first.
After doing so, the Court addresses the
motion to compel and the motion to quash.
A. The Motion to Stay
In its motion to stay, PNC Bank moves this Court for an
order staying all discovery pending determination of its motion
to dismiss for lack of standing.
opposes the stay.
(Doc. #40 at 1).
Ms. Boddie
For the following reasons, no stay of
discovery will be ordered.
PNC Bank moved for a stay in this case previously, advancing
reasoning similar to that offered in support of its current
motion.
Specifically, PNC Bank sets forth a typical argument for
staying discovery pending resolution of a dispositive motion:
that if the motion is granted in its entirety, there will be no
need for discovery at all.
Hence, PNC Bank asserts that a stay
will conserve resources for the Court as well as the parties.
As
established in the Court’s pre-trial order, the current discovery
cut-off date is February 28, 2013.
(Doc. #10).
As this Court has observed, a stay of discovery for any
reason is a matter ordinarily committed to the sound discretion
of the trial court.
See Chrysler Corp. v. Fedders Corp., 643
F.2d 1229, 1240 (6th Cir. 1981).
In ruling upon a motion for a
stay, the Court is required to weigh the burden of proceeding
with discovery upon the party from whom discovery is sought
against the hardship that would be worked by a denial of
discovery.
See Marrese v. American Academy of Orthopedic
Surgeons, 706 F.2d 1488, 1493 (7th Cir. 1983).
Additionally, the
Court is required to take into account any societal interests
that are implicated by either proceeding or postponing discovery.
See id.
When a stay, rather than a prohibition, of discovery is
sought, the burden upon the party requesting the stay is less
than if he were requesting a total freedom from discovery.
See
id.
The argument that discovery should be stayed pending the
resolution of a dispositive motion is typically unpersuasive.
See, e.g., Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N. D.
Cal. 1990) (stating that if the Federal Rules of Civil Procedure
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had contemplated that a pending dispositive motion would stay
discovery, they would contain a provision to that effect).
Indeed, this Court has noted that the occasions when it has
granted such a stay are few, arising where there are issues of
immunity from suit, or a narrow legal issue that is evaluated
easily in order to determine whether the dispositive motion has
merit.
(Doc. #28 at 4).
Despite the fact that stays of discovery during the pendency
of dispositive motions are rarely granted, the Court does
consider each such motion on its individual merits.
In Heartland
Jockey Club Ltd. v. Penn National Gaming, Inc., 2009 WL 5171829,
at *4 (S.D. Ohio Dec. 21, 2009), this Court noted that it:
takes seriously its obligation to manage discovery and
recognizes that there are cases where the plaintiff's
claim is so tenuous, and the potential injury to either
private or societal interests from unfettered discovery
is so great, that the Court must limit or preclude
discovery in order to strike the proper balance between
the competing interests involved.
Id.
As the Court found with respect to PNC Bank’s prior motion
to stay, that does not appear to be the case in the instant
matter.
How this lawsuit may impact the pending bankruptcy matter
involving Ms. Boddie and whether this litigation will be
precluded from proceeding in light of the bankruptcy matter are
not issues that are resolved easily in order to determine whether
the motion to dismiss for lack of standing will be meritorious.
In PNC Bank’s own words, “[a]t this point, it is a big unknown
how the bankruptcy will impact this litigation.”
2).
(Doc. #40 at
For these reasons, and in the exercise of its discretion,
the Court denies the PNC Bank’s motion for a stay of discovery
pending a resolution of the motion to dismiss for lack of
standing.
(Doc. #40).
Having resolved the motion to stay, the
Court next considers Ms. Boddie’s motion to compel.
-3-
B. The Motion to Compel
Pursuant to F. R. Civ. P. 37, Ms. Boddie filed a motion to
compel requesting that the Court order PNC Bank to comply with
Ms. Boddie’s request for production of documents.
(Doc. #27).
In the motion, Ms. Boddie contends that PNC Bank has failed to
comply with the request that it produce:
3. Any and all documents describing PNC Bank policy
and/or procedure regarding the retention of any video
recording of bank premises and/or activity on July 30,
2011 [and]
4. Any and all documents identifying the custodian(s) of
video recording(s) of Bexley premises and/or activity
made on July 30, 2011.
(Id. at 2).
Ms. Boddie likewise seeks reasonable expenses,
including attorneys fees, incurred in connection with the motion
to compel.
(Id. at 1).
PNC Bank filed an opposition to the motion to compel,
asserting that it has “appropriately and timely responded to
Plaintiff’s discovery requests and has produced the relevant,
responsive documents requested of it.”
(Doc. #32 at 1).
PNC
Bank states:
Plaintiff’s apparent frustration arises from (1)
difficulty in using the technology required to encrypt
PNC Bank’s production, which included confidential
information as well as Plaintiff’s personally identifying
information; (2) her request for a production log, which
has been resolved; and (3) her baseless belief that PNC
Bank must have additional responsive documents it has not
produced, which is simply not true at this point.
(Id.)
Because PNC Bank asserts that it has complied fully with
discovery, it urges this Court to deny Ms. Boddie’s motion.
(Id.)
Ms. Boddie filed a reply in support of her motion to compel.
(Doc. #35).
In the reply, Ms. Boddie contends that she did not
have difficulty with the technology required to encrypt PNC
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Bank’s production.
(Id. at 3).
Rather, Ms. Boddie asserts that
PNC Bank provided her with a blank CD, which was “not a timely
response to [her] discovery request.”
(Id.)
As to the documents
that were produced, Ms. Boddie urges that PNC Bank produced them
without identifying the discovery request to which the documents
were responsive.
(Id. at 4).
Finally, Ms. Boddie claims that
PNC Bank’s representations that it continues to search for
responsive documents “renders the requirement to respond within a
time certain without consequence and the discovery process
fruitless.”
(Id.)
This Court finds Ms. Boddie’s arguments to be without merit.
The record reflects that PNC Bank’s counsel resolved the problems
related to viewing the CD in a timely and professional manner.
(Doc. #32 at 3).
Indeed, the record reflects PNC Bank’s counsel
responded to an email about the CD on Saturday, July 14, 2012,
the very day that Ms. Boddie’s counsel raised the issue.
Brewer Decl. ¶ 5, Ex. 2).
(Id.,
The next business day, Monday, July
16, PNC Bank’s counsel sent the documents to Ms. Boddie’s counsel
by email, rather than CD, thereby resolving the issue.
Brewer Decl. ¶ 6, Ex. 3).
(Id.,
Thus, PNC Bank’s counsel resolved any
difficulty arising from the encrypted CD in an expeditious
manner.
As to Ms. Boddie’s complaint that PNC Bank’s document
production was not identified properly, the Court again finds
that PNC Bank’s counsel responded to Ms. Boddie’s request in a
timely and appropriate fashion.
The record reflects that, on
July 17, 2012, Ms. Boddie’s counsel requested information
identifying which documents were responsive to which document
requests.
(Id. at 4, Ex. 4).
On the same day, PNC Bank’s
counsel responded that it would produce a log containing the
requested information.
(Id., Ex. 5).
The record reflects that
PNC counsel’s indeed produced a log containing the requested
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information within three business days.
9).
(Id., Brewer Decl. at ¶
PNC Bank claims that it did not provide this information
from the outset because the identification “was obvious from both
the documents and the requests.”
(Id.)
Whether this approach
was justified is not before this Court on the motion to compel.
Rather, Ms. Boddie is requesting that the Court order PNC Bank to
comply with her request for production of documents.
(Doc. #27).
Because the Court finds that PNC Bank complied with Ms. Boddie’s
request for production, the motion is denied.
This outcome remains unchanged despite Ms. Boddie’s claims
that PNC Bank’s continued search for documents is improper.
The
record reflects that PNC Bank is not delaying its response to Ms.
Boddie’s requests citing its continuing search for responsive
information.
To the contrary, PNC Bank has complied and produced
all of the responsive documents that it is aware of after its
search for the requested information.
PNC Bank’s continued
willingness to search for documents was in response to Ms.
Boddie’s insistence that PNC Bank’s production was insufficient.
(See Doc. #32, Ex. 8) (Ms. Boddie’s counsel quoting an exchange
between Humpty-Dumpty and Alice in Lewis Carroll’s “Through the
Looking Glass” to convey that PNC Bank’s response was
inadequate).
Consequently, this Court finds no reason to compel
PNC Bank’s compliance.
Plaintiff has not set forth a valid basis upon which to
compel any action by PNC Bank.
Because Ms. Boddie has failed to
demonstrate any failure on the part of PNC Bank to comply with
the discovery requested, the motion to compel is denied.
(Doc.
#27).
C. The Motion to Quash
Finally, the Court turns to Ms. Boddie’s motion to quash.
(Doc. #48).
In her motion, Ms. Boddie requests that this Court
quash the subpoena duces tecum issued by PNC Bank “to Jeffrey
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Ruple on December 17, 2012 and disgorge an [sic] document
received in response to the [s]ubpoena on the grounds that the
[s]ubpoena violates this Court’s order. . . . ”
(Id. at 1).
On November 16, 2012, this Court issued an order
memorializing a status conference it held two days prior on Ms.
Boddie’s motion to compel.
(Doc. #43).
In the order, the Court
noted that PNC Bank had moved for a stay of discovery pending
resolution of the motion to dismiss for lack of standing.
at 1).
(Id.)
(Id.
Ms. Boddie had not yet responded to the motion to stay.
Consequently, the Court stated that it could not make a
final decision on the stay issue, but it “did stay any active
exchange of discovery until the stay motion is briefed.”
(Id.)
Ms. Boddie asserts that, notwithstanding the Court’s order,
PNC Bank issued a subpoena duces tecum “to Jeffrey Ruple, an
attorney with the law firm of Buckley King, for a settlement
agreement to which Plaintiff is a party on December 17, 2012.”
(Doc. #48 at 2).
Ms. Boddie thus contends that the subpoena was
issued and served in violation of this Court’s order, and it
should be quashed.
(Id. at 3).
Ms. Boddie further claims that
PNC Bank failed to comply with the prior notice requirement in F.
R. Civ. P. 45(b)(1), which constitutes another ground on which to
quash the subpoena.
(Id.)
Last, Ms. Boddie claims that she is
entitled to attorneys fees under F. R. Civ. P. 26(g)(2).
(Id.)
In opposition, PNC Bank states that the subpoena at issue
did not relate to merits discovery.
(Doc. #50 at 1).
To the
contrary, PNC Bank contends that the subpoena related solely to
issues that Ms. Boddie placed before the Court in her opposition
to the motion to dismiss for lack of standing.
(Id.)
In
particular, PNC Bank alleges that, in the course of evaluating
Ms. Boddie’s claim that she inadvertently failed to disclose this
litigation to her bankruptcy counsel, it learned that Ms. Boddie
had settled a prior litigation captioned Boddie v. B.D. Mongolian
-7-
BarBeQue, Franklin County Com. Pl. No. 10 CV 005313 while in
bankruptcy and concealed that lawsuit and settlement from the
bankruptcy court and trustee.
(Id. at 2).
PNC Bank states that,
for the singular purpose of responding to Ms. Boddie’s contention
that her failure to disclose was inadvertent, it “subpoenaed
counsel for Mongolian BarBeQue in that litigation to review the
terms of the settlement agreement.”
(Id.)
PNC Bank claims that
the single document it requested is one that Ms. Boddie or her
counsel should have already in their possession.
(Id.)
PNC Bank
likewise argues that Ms. Boddie lacks standing to seek to quash
the subpoena issued to a non-party, and it complied with the
relevant notice provision.
(Id. at 3).
For these reasons, PNC
asks that Ms. Boddie’s motion to quash be denied.
(Id. at 5).
Ms. Boddie filed a reply brief in support of her motion,
reiterating her position that the subpoena violates the Court’s
order staying discovery.
(Doc. #51 at 2).
Ms. Boddie also
contends that she has standing to challenge the subpoena, which
PNC Bank served in violation of the prior notice requirement.
(Id. at 4).
Finally, Ms. Boddie argues that the discovery sought
by the subpoena is not reasonably calculated to lead to
admissible evidence. (Id. at 5-6).
The Court finds Ms. Boddie’s arguments to be without merit.
Even assuming that Ms. Boddie has standing to move to quash the
subpoena issued to the non-party, this Court’s stay of discovery
in the instant case related solely to merits discovery; it was
not intended to bar any discovery relevant to the pending motion
to dismiss for lack of standing.
(Doc. #43).
As suggested by
PNC Bank, the discovery at issue related only to Ms. Boddie’s
allegation that her failure to disclose the instant lawsuit was
inadvertent.
Consequently, the discovery at issue was not based
on the merits of this case, and it is relevant to the pending
motion to dismiss.
As to the notice requirement, the record
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reflects that PNC Bank indeed complied with F. R. Civ. P.
45(b)(1), which requires notice to be served on each party before
a subpoena that commands the production of documents is served.
(See Motley Decl. at ¶ 3-4, Ex. A-B).
Thus, an alleged lack of
notice cannot serve as a basis to quash the subpoena.
Finding
Ms. Boddie’s motion to be without merit, the Court also denies
her corresponding request for attorneys fees.
III. Conclusion
For the reasons set forth above, Ms. Boddie’s motion to
compel is denied (Doc. #27), PNC Bank’s motion to stay discovery
is denied (Doc. #40), and Ms. Boddie’s motion to quash is denied
(Doc. #48).
IV. Procedure for Seeking Reconsideration
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.
The motion must specifically designate the order or
part in question and the basis for any objection.
Responses to
objections are due fourteen days after objections are filed and
replies by the objecting party are
due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.
S.D. Ohio L.R. 72.4.
/s/ Terence P. Kemp
United States Magistrate Judge
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