Magnusson v. Ocwen Loan Servicing et al

Filing 78

MEMORANDUM DECISION AND ORDER granting 75 Motion to Reconsider 75 Memorandum Decision and Order and denying Motion to Allow Pro Se E-filing. After reconsideration, the court concludes that 68 Motion to Compel is again denied. Signed by Magistrate Judge Dustin B. Pead on 8/26/15 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
SHARON MAGNUSSON,
Plaintiff,

MEMORANDUM DECISION &ORDER
Case No. 2:14-CV-00161

v.
OCWEN LOAN SERVICING, LLC, and
NATIONSTAR MORTGAGE, LLC, and
CENLAR FSB, and JANE AND JOHN
DOES 1-10,

United States District Court
Judge David Nuffer
Magistrate Judge Dustin Pead

Defendants.

I.

INTRODUCTION

This matter was referred to the court under 28 U.S.C. § 636(b)(1)(B) (Dkt. No. 25).
Currently pending before the court is Plaintiff Sharon Magnusson’s (Ms. “Magnusson”) motion
to reconsider the court’s July 6, 2015, memorandum decision and order (“Order”) (Dkt. No. 75).
In its July Order, the court denied Magnusson’s motion to compel (Dkt. No. 68) the Defendant,
Ocwen Loan Servicing (“Ocwen”), to produce its Chief Executive Officer (“CEO”) and Chief
Financial Officer (“CFO”) for deposition.
The court has carefully reviewed the memoranda submitted by the parties. Pursuant to
civil rule 7-1(f) of the United States District Court for the District of Utah Rules of Practice, the
court elects to determine the motion on the basis of the written memoranda and finds that oral
argument would not be helpful or necessary. See DUCivR 7-1(f).
II.

STANDARD OF REVIEW

To the extent that motions to reconsider are recognized, they are disfavored.
Whittington v. Taco Bell of Am., Inc., No. 10-1884, 2012 WL 3705046, at *2 (D. Colo. Aug. 27,

2012) (citing Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.
1990)); see Warren v. Am. Bankers Ins. Of Fl., 507 F.3d 1238, 1243 (10th Cir. 2007 ) (stating that
for twenty years, the Tenth Circuit has “admonished counsel that the Federal Rules of Civil
Procedure do not recognize that creature known all too well as the ‘motion to reconsider’ or
‘motion for reconsideration.’).
A court may reconsider a prior ruling based on “(1) an intervening change in the
controlling law, (2) new evidence previously unavailable, [or] (3) the need to correct clear error
or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000) (citing Brumark Corp.v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995)).
Motions to reconsider are “inappropriate vehicles to reargue an issue previously addressed by the
court when the motion merely advances new arguments, or supporting facts which were
available at the time of the original motion.” Servants of the Paraclete, 204 F.3d at 1012.
III.

ANALYSIS

Here, Magnusson suggests that reconsideration of the court’s prior ruling is justified
because she was not given an opportunity to file a reply memorandum to her motion to compel
(Dkt. No. 75). Ocwen’s certificate of service confirms that its opposition was mailed to an
incorrect address (Dkt. No. 69).1 Magnusson, however, does not assert that she did not receive
Ocwen’s opposition, but only that it was mailed to an incorrect address and therefore she was
unable to file a reply. Although failure to receive documents does not relieve a moving party of
their obligation to independently observe deadlines, the court concludes that under these
circumstances the proper course of action to prevent error or injustice is to re-consider its prior
1

As a pro se plaintiff, Magnusson is not authorized under local administrative rules to file or
receive filings electronically. Here, Ocwen’s Certificate of Service shows that its opposition was
mailed to Magnusson at: 3016 West 1500 South, Bluffdale, Utah 84065. Ms. Magnusson’s
address of record is: 3016 West 1500 South, Bluffdale, Utah 84605.

ruling in the context of the arguments now raised by Magnusson.2 In doing so, and upon reconsideration of Magnusson’s original motion, Ocwen’s opposition and Magnusson’s reply
arguments as set forth in her motion for reconsideration, the court again denies Magnusson’s
motion to compel (Dkt. No. 68).
In support of her motion, Magnusson posits numerous questions that she asserts are
“fundamentally unique” to Ocwen’s CEO and CFO and thereby compel their depositions (Dkt.
No. 75).3 Magnusson argues it is Ocwen’s burden to establish that its corporate officers do not
have unique personal knowledge of these issues. The court disagrees. As an initial matter,
Magnusson fails to provide evidence that Ocwen’s CEO and CFO had any involvement with the
subject loan or possess unique personal knowledge of circumstances relevant to this litigation.
See Fed. R. Civ. P. 26(b)(1). Merely positing questions does not establish how the proposed
deponents are uniquely suited to address those issues. Rather, “unique personal knowledge must
be truly unique—[such that] the deposition would not be allowed where the information could be
had through interrogatories, deposition of a designated spokesperson, or deposition testimony of
other persons. . . .” Echostar Satellite, LLC v. Splash Media Partners, L.P., 2009 U.S. Dist.
2

The majority of Magnusson’s motion to reconsider is not dedicated to arguments in support of
reconsideration, but to her arguments in support of the underlying motion to compel. As a result,
the court effectively considers Magnusson’s motion to reconsider as a “reply” to her underlying
motion to compel.
3

By way of example, Magnusson’s questions include: “(a) knowledge as to the nature and why
certain policies are in place. For example, uniquely to the CEO is why does the CEO allow and
condone a policy of sending out letters stating that once Ocwen confirms you are eligible for a
home affordable modification and you have made your trial period payments timely, Ocwen will
send you a modification agreement detailing the terms of your modified loan. After Ocwen send
out this type of letter, Ocwen purposely denies any loan modification due to the fact that Ocwen
relinquished its right to service the loan. And; (b) why does the CEO allow a policy of requiring
and accepting “trial period payments knowing full well that even though these payments are
made, Ocwen will deny a fixed percentage of them from ever turning into a permanent loan
modification. And; (h) has the CEO ever been involved with a specific Note by giving a
permanent loan modification. (Dkt. No. 75, pgs. 5-7).
3

LEXIS 43555, at *5 (D. Colo. May 11, 2009) (citing Baine v. General Motors Corp., 141 F.R.D.
332, 334 (M.D. Ala. 1991) (internal citations omitted).
Further, Magnusson’s claim that Ocwen bears the initial burden of establishing, through
affidavit or otherwise, that its executives have no unique personal knowledge is patently
incorrect. To the contrary, the case law cited by Magnusson states it is “the party seeking
discovery [who] must first demonstrate that the proposed deponent has ‘unique personal
knowledge’ of the matters in issue.” Id. at *5-6 (citing Baine v. General Motors Corp 141
F.R.D. at 334) (emphasis added). Here, Magnusson makes no such demonstration and neglects
to establish the relevance of the information sought or provide explanation as to why the
information is not available through alternate means of discovery. As a result, Magnusson’s
motion to compel the depositions of Ocwen’s CEO and CFO is again denied.
The court reminds Magnusson that an inability to establish unique personal knowledge
sufficient to warrant the requested depositions does not preclude her from deposing Ocwen on
relevant topics. Federal Rule of Civil Procedure 30(b)(6) specifically addresses the proper
procedure for deposing corporate entities. See Fed. R. Civ. P. 30(b)(6).
IV.

ORDER

Accordingly, for the reasons stated herein, Magnusson’s motion for reconsideration is
GRANTED (doc. 75). After reconsideration, the court concludes that Magnusson’s motion to
compel (doc. 68) is again DENIED (doc. 68).
Finally, Magnusson’s request to file her pleadings electronically is DENIED pursuant
Section I(A)(2) of the CM/ECF and E-filing Administrative Procedures Manual. See “District of
Utah CM/ECF and E-filing Administrative Procedures Manual” (March 21, 2015)
http://www.utd.uscourts.gov/cmecf/ecfpage.html (“Parties appearing pro se shall file
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conventionally absent an order of the Court allowing registration as an e-filer.”).
DATED this 26th day of August, 2015.

_____________________________________
Dustin Pead
U.S. Magistrate Judge

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