Santos v. US Bank National Association et al

Filing 50

ORDER granting Defendant's 43 Motion to Compel. Signed by Judge Ricardo S Martinez.(TH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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BRIAN H. SANTOS,
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Plaintiff,
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v.
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U.S. BANK NATIONAL ASSOCIATION, )
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et al.,
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Defendants.
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I.

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CASE NO. C16-0434 RSM
ORDER GRANTING DEFENDANT U.S.
BANK NATIONAL’S MOTION TO
COMPEL

INTRODUCTION

This matter comes before the Court on Defendant U.S. Bank National Association’s

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(“U.S. Bank”) Second Motion to Compel Discovery. Dkt. #43. Plaintiff opposes the motion,
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arguing that in large part it is unnecessary. Dkt. #47. The Court has reviewed the motion, along

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with the remainder of the record. For the reasons set forth herein, the Court now GRANTS

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Defendant’s motion to compel.

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II.

BACKGROUND

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Plaintiff, Brian Santos, initially filed his Complaint for Damages in King County Superior

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Court. Dkt. #4. Defendants removed the action to this Court on March 25, 2016. Dkt. #1.

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Plaintiff alleges that:

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3.2
At all times material and relevant hereto, Plaintiff BRIAN H.
SANTOS was an active duty member of the United States Air Force.

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ORDER
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3.3
At all times material and relevant hereto, Plaintiff’s then-wife
was also an active duty member of the United States Air Force.

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3.4
Defendant US BANK, doing business as US Bank and US Bank
Home Mortgage, holds the mortgage to Plaintiff’s home located at 19007 SE
2601h Street in Covington, King County, Washington.

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3.5
On or about September 1, 2012, Plaintiff BRIAN H. SANTOS
spoke with Jordan Clark of Defendant US BANK regarding his active duty
status to ensure his home would be protected while he was deployed.

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3.6
On said occasion, Jordan Clark assured Plaintiff that he was
protected under the Servicemembers Civil Relief Act (SCRA) and no
negative action would be taken against him by the bank for any missed
mortgage payments.

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3.7
On or about September 11, 2012, Jill Payne, E-mail
Representative of the Special Loans Department of Defendant US BANK
emailed Plaintiff and advised him that the SCRA did apply to his mortgage
on the subject property and should he become delinquent on his mortgage
payments, the bank could not take action against him.

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3.8
On or about September 16, 2012, Plaintiff BRIAN H. SANTOS
responded to Jill Payne’s email seeking further confirmation that he was fully
enrolled in the program ensuring his protection under the SCRA and advised
Ms. Payne that Jordan Clark had previously assured him that US BANK,
would fully exonerate him for any missed mortgage payments and asked Ms.
Payne for confirmation this statement by Jordan Clark was indeed true.

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3.9
On or about September 17, 2012, Jill Payne responded to
Plaintiff’s email and confirmed his accounts with US Bank were “set up in
accordance with the Servicemembers Civil Relief Act through [his]
September 1, 2014, payment.” She went on to state, “. . . you will not accrue
any late charges through this date and we will not report you to the credit
bureaus through November 28, 2013.” Ms. Payne further confirmed that
“[d]uring [Plaintiff's] period of active duty and for nine months thereafter,
[he would] not be in danger of foreclosure . . . “ and advised him that “[a]s of
today, neither loan is being reviewed for foreclosure, so . . . [he was] not
going to lose [his] home.”

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3.10
On or about November 27, 2012, Defendant US BANK, by and
through Jessica Brazier, Special Loans Specialist with US Bank’s Special
Loans Department, sent Plaintiff BRIAN H. SANTOS a letter again
confirming his protection under the SCRA based upon his active duty status
in the US military.

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ORDER
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3.11
Defendant US BANK employed Defendant SAFEGUARD
PROPERTIES to winterize Plaintiff’s Covington home and, upon
information and belief, hired Defendant SAFEGUARD PROPERTIES to
perform this work less than one month after Plaintiff had received the written
confirmation of November 27, 2012, that he was subject to SCRA
protections.

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3.12
Upon information and belief, when Defendant US BANK hired
Defendant SAFEGUARD PROPERTIES to winterize Plaintiff’s home,
Defendant US BANK, by and through its duly authorized agents or
employees, informed Defendant SAFEGUARD PROPERTIES that
Plaintiff’s mortgage was in default and that the subject residence was an asset
of the bank and therefore needed winterization to preserve said asset.

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3.13
Defendant SAFEGUARD PROPERTIES then hired Defendant
QUEST PRESERVATION to perform said winterization.

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3.14
Defendant QUEST PRESERVATION hired Bryan Anderson to
complete the winterization of Plaintiff’s home in Covington, Washington.

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3.15
On or about December 28, 2012, Defendant QUEST
PRESERVATION issued work order #115592 to Bryan Anderson to
winterize the subject property.

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3.16
On or about December 29, 2012, Bryan Anderson and his sister,
Cheryl Anderson, entered Plaintiff’s home.

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3 .17
On said occasion, Bryan Anderson replaced the front door locks
with a new one so that Defendant SAFEGUARD PROPERTIES would have
access to Plaintiff’s home.

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3.18
In the course of winterizing Plaintiffs home, Bryan and Cheryl
Anderson unlawfully removed personal property belong to Plaintiff and also
caused damage to the home itself.

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3 .19
Upon information and belief, over the course of four days, Bryan
Anderson removed numerous items belonging to Plaintiff.

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3 .20
In the course of winterizing Plaintiff’s home and removing
Plaintiff’s personal property from the residence, Bryan Anderson informed
Plaintiff’s neighbors that Plaintiff’s mortgage was in default and was being
repossessed by the bank.

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3.21
Bryan Anderson then pawned and/or otherwise attempted to sell
the personal property he stole from Plaintiff’s residence.

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3 .22
On or about December 31, 2012, Jessica Brazier again sent a
letter to Plaintiff advising him that the bank was issuing him a refund of a late
fee due to his protection under the SCRA.

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3.23
On or about January 4, 2013, Bryan Anderson opened a bank
account with Defendant US BANK, via a US Bank branch located in
Washington State, with a check he obtained from selling Plaintiff’s personal
property.

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3.24
On or about February 24, 2013, Plaintiff BRIAN H. SANTOS,
having been granted a one-week leave from him deployment in Korea,
arrived at the Covington home and discovered his key no longer worked to
unlock the front door. Unable to get into his home, Plaintiff called 911, who
advised him to contact his bank.

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3.25
Plaintiff BRIAN H. SANTOS contacted Defendant US BANK
the next day, February 25, 2013, and notified said Defendant, by and through
its duly authorized employee(s) and/or agent(s) of the violation of Defendant
US BANK’S prior guarantees that he was protected by the SCRA and also
providing notice to said Defendant that many personal items had been stolen
from his residence.

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3.26
Upon information and belief, his file and his corresponding claim
for damages was transferred to Defendant US BANK’S Loss Draft
Processing Center, a division of US Bank.

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3.27
On or about February 28, 2013 and again on or about March 1,
2013, Plaintiff received emails from Defendant US BANK’S Loss Draft
Processing Center, confirming receipt of his claim and advising Plaintiff it
was currently being reviewed.

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3.28
On or about March 2 or 3, 2013, Gregg Speer, Sr., Vice President
of Residential Homes Default Counseling, a division of Defendant US
BANK, called Plaintiff and promised him that the bank “would make this
right” and further promised immediate financial assistance to Plaintiff to
offset the costs and losses Plaintiff had suffered as a result of the wrongful
pre-foreclosure actions taken by Defendant US BANK.

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3.29
After having admitted the pre-foreclosure actions previously
taken by Defendant US BANK were wrongful and should not have occurred,
Defendant US BANK, by and through US Bank’s Residential Mortgage
Default and Management Division, sent Plaintiff another Pre-Foreclosure
Notice on or about June 19, 2013.

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3.30
Around the time Defendant US BANK sent Plaintiff the PreForeclosure Notice in June of 2013, Plaintiff’s neighbors contacted him to let

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ORDER
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him know that another home preservation company had been seen on
Plaintiffs property.

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Dkt. #2 at ¶ ¶ 3.2-3.30.

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As a result, Plaintiff brought claims against Defendant U.S. Bank for Violation of the

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Consumer Protection Act and Fraud, and against all Defendants for Violation of the

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Servicemembers Civil Relief Act, Negligence, Negligent Infliction of Emotional Distress,

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Intentional Infliction of Emotional Distress, and Vicarious Liability. Id. at ¶ ¶ 4.1-10.9.

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Prior to the discovery deadline of February 1, 2017, Defendants filed a motion to compel
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responses to written discovery and the deposition of Plaintiff. Dkt. #16. That motion was noted

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for consideration by the Court on January 20, 2017. Id. Plaintiff then filed a motion for a stay

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of this matter pursuant to the Servicemembers Civil Relief Act (“SCRA”), and sought a stay until

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May of 2018. Dkt. #24.

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On February 14, 2017, the Court granted Plaintiff’s motion in part and stayed these
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proceedings until August 18, 2017. Dkt. #28. The Court also struck Defendant’s motion to

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compel, subject to renewal once the matter proceeded. Id.

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On August 16, 2017, Plaintiff moved for another stay. Dkt. #32. Although the Court
found there were deficiencies with the motion, in abundance of caution, the Court granted a stay.

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Dkt. #39. However, the Court stayed the matter only until November 10, 2017. Id. The Court
also informed the parties that:
. . . If, by that date, an application for additional stay is filed by Plaintiff
under 50 App. U.S.C. § 522(d)(1), that application shall again contain the
information required under 50 App. U.S.C. § 522(b)(2), including a letter
or other communication from Plaintiff’s commanding officer. Further,
Plaintiff is warned that if he fails to comply with the filing
requirements set forth in this Court’s Local Civil Rule 7, and fails to
comply with the requirements of the SCRA in their entirety, the
Court will deny such a motion. Plaintiff has more than 60 days to
comply with his statutory requirements and the Court expects that

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ORDER
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both he and his counsel will prepare for any future motion with the
professional attention it deserves.

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2. The Clerk will issue an Amended Scheduling Order once the stay is lifted
in this matter. Further, once the stay is lifted, only those case deadlines
that had not passed as of the date of the Court’s initial stay Order
(2/14/2017) will be re-scheduled. With the exception of the discovery at
issue in Defendant’s prior motion to compel (Dkt #16), no further
discovery shall be taken once the stay is lifted unless otherwise ordered
by the Court.

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3. As noted in the Court’s prior stay Order, nothing precludes Defendant
from filing a subsequent motion to compel once the stay is lifted should
that become necessary.

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Dkt. #39 at 8-9 (bold in original; footnote omitted).
No further motions for stay have been filed. Accordingly, the stay has expired, and
Defendant’s renewed motion to compel is ripe for review.

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III.

DISCUSSION

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A. Stay Has Expired

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As an initial matter, the Court formally lifts the stay in this matter. The stay expired on

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November 10, 2017, and Plaintiff has filed no further motion to stay this matter. See Dkt. #39 at

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8. Accordingly, this matter will now proceed and the Court will issue an Amended Scheduling

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Order setting forth the remaining pre-trial deadlines.

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B. Standard for Motions to Compel

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A party may move to compel discovery if the movant has in good faith conferred with

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the party opposing discovery to obtain the requested discovery without the court’s intervention.

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See Fed. R. Civ. P. 37(a)(1). The moving party bears the burden of demonstrating that the

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information it seeks is relevant and that the responding party’s objections lack merit. See
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Bluestone Innovations LLC v. LG Elecs., Inc., No. C-13-01770-SI (EDL), 2013 U.S. Dist. LEXIS

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171861, 2013 WL 6354419, at *2 (N.D. Cal. Dec. 5, 2013). The party must therefore “inform
ORDER
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the Court which discovery requests are the subject of the motion to compel, and, for each disputed

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response, why the information sought is relevant and why the responding party’s objections are

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not meritorious.” Adams v. Yates, No. 1:10-cv-0671-AWI-MJS, 2013 U.S. Dist. LEXIS 157111,

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2013 WL 5924983, at *1 (E.D. Cal. Nov. 1, 2013).

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A party may “obtain discovery regarding any nonprivileged matter that is relevant to any
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party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).

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Whether discovery is proportional to the needs of the case hinges on “the importance of the issues

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at stake in the action, the amount in controversy, the parties’ relative access to relevant

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information, the parties’ resources, the importance of the discovery in resolving the issues, and

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whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. The
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court must limit discovery that is not proportional to the needs of the case. See Fox v. State Farm

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Ins. Co., No. C15-0535RAJ, 2016 U.S. Dist. LEXIS 9056, 2016 WL 304784, at *1 (W.D. Wash.

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Jan. 26, 2016). The court has “broad discretion to limit” such discovery. Romero v. Securus

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Techs., Inc., No. 16-cv-1283-JM-MDD, 2017 U.S. Dist. LEXIS 170976, 2017 WL 4621223, at

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*1 (S.D. Cal. Oct. 16, 2017).
C. Discovery Sought

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Defendant U.S. Bank asks the Court to issue an Order: (1) compelling Plaintiff to make

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himself available for a deposition in this District within 60 days; (2) compelling Plaintiff to

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immediately provide full and complete answers to the Bank’s interrogatories and requests for

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production; and (3) awarding the Bank its reasonable fees and costs for bringing this Motion and
its prior motion to compel. Dkt. #43 at 2. The Court will grant this motion in part.

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On September 16, 2016, Defendant served Plaintiff with Discovery Requests. Dkt. #17,

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Ex. A. Thus, Plaintiff’s deadline to serve his responses was October 17, 2016. Fed. R. Civ. Proc.

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ORDER
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33(b)(2) and 34(b)(2)(A). Plaintiff did not respond by that date, nor did he contact Defendant to

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seek and extension of time to respond. Dkt. #17 at ¶ 4. After that date, defense counsel engaged

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in discussions with Plaintiff’s counsel, and ultimately agreed to an extension of time to respond

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until November 14, 2016, provided that such responses would be without objections and also

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informally include other information. Dkt. #17 at ¶ 10 and Ex. F thereto. Plaintiff provided
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discovery responses on November 14, 2016, but those responses did not comply with counsel’s

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agreement. Dkt. #17 at ¶ ¶ 12-13. After additional meet and confers between counsel, Plaintiff

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provided additional responses; however, the supplemental responses still did not cure the

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deficiencies identified by defense counsel. Dkt. #17 at ¶ ¶ 16 - 21 and Exs. L, M, N, O, P, Q, R,

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T and U thereto. Additionally, Plaintiff failed to provide any dates that he would be available
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for his deposition. Dkt. #17 at ¶ 22. Since the filing of Defendant’s first motion to compel,

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which was stricken during the stay, Plaintiff has failed to provide additional discovery responses,

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and provided deposition dates only after the instant motion was filed. Dkt. #44 at ¶ ¶ 3-13 and

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#45 at 2.

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As an initial matter, “[i]t is well established that a failure to object to discovery requests

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within the time required constitutes a waiver of any objection.” Richmark Corp. v. Timber

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Falling Consultants, 959 F.2d 1468, 1473 (9th Cir 1992) (quoting Davis v. Fendler, 650 F.2d

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1154, 1160 (9th Cir.1981). Having reviewed the record in this matter, the Court finds that

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Plaintiff did not respond to discovery requests in a timely manner and did not comply with

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subsequent agreements between counsel for the production of discovery.

Therefore, any

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objections have been waived. As a result, Plaintiff’s arguments that the discovery sought by

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Defendant is not relevant are without basis. See Dkt. #47 at 4-7. Moreover, Plaintiff fails to

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address the standard set forth in the current Federal Civil Rule regarding discovery requests, and

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ORDER
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does not address Defendant’s assertions that the requested discovery is relevant to its defenses.

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See id. and Fed. R. Civ. Proc. 26(b)(1). Accordingly, the Court will grant Defendant’s request

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for an order compelling Plaintiff to withdraw any objections and provide full and complete,

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verified responses to Defendant’s interrogatories and requests for production.

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Turning to Defendant’s request that Plaintiff provide a date certain for his deposition, the
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Court will also grant that request. Plaintiff argues that such an Order is not necessary because

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he has informed defense counsel that he is available on any day between February 19 and 21,

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2018. Dkts. #45 at 2 and #47 at 2-3. However, the Court notes that Plaintiff does not assert that

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he has been granted leave during that time. In fact, he qualifies those dates with the statement

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that he is available “unless my command withdraws permission, does not grant, or revokes my
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requested leave.” Dkt. #45 at 2 (emphasis added). This statement also fails to comply with the

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spirit of the Court’s prior Order, wherein the Court informed Plaintiff that he “shall inform the

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Court whether he indeed requested leave and whether that request was granted or denied.” See

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Dkt. #39 at 9. The Court will take Plaintiff at his word that he is available on the dates he has

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provided; however, the Court finds an Order directing Plaintiff to appear for his deposition on

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those dates is also in order. Plaintiff is warned that once a subpoena is issued, his failure to

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appear on the noticed date may subject him to sanctions, unless he has received prior permission

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not to appear from defense counsel or this Court.

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Finally, the Court will grant Defendant’s request for attorney’s fees. Federal Rule of

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Civil Procedure 37(a)(5)(A) requires the Court to grant the moving party’s expenses in making

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the motion if the motion is granted. The Court finds no reason not to grant Defendant’s request

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given the history of this matter. Accordingly, the Court shall award Defendant its attorney’s fees

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related to its motion to compel.

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ORDER
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IV.

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CONCLUSION

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Having reviewed Defendant’s motion, the opposition thereto and reply in support thereof,

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along with the parties’ Declarations and exhibits and the remainder of the record, the Court

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hereby finds and ORDERS:

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1. Defendant’s Motion to Compel (Dkt. #43) is GRANTED.
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2. No later than twenty (20) days from the date of this Order, Plaintiff shall withdraw

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his objections to Defendant’s discovery requests and produce full and complete,

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verified responses to those requests. Should Plaintiff fail to comply with this

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Order, he may be subject to sanctions. Further, nothing in this Order precludes

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Defendant from moving for additional discovery should it believe such discovery
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is warranted after receiving Plaintiff’s responses.

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3. Defendant shall issue a deposition subpoena to Plaintiff for one of the dates he

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has provided (February 19-21, 2018), and Plaintiff shall appear for his deposition

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on that date unless otherwise excused by Defendant or this Court.

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4. Defendant’s request for attorney’s fees and costs is GRANTED. Defendant shall

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file a Supplemental Motion for Attorney’s Fees, supported with a Declaration of

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its fees associated with its Motions to Compel (both the first and the second) no

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later than fourteen (14) days from the date of this Order. That motion shall

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be noted for the second Friday after it is filed. Plaintiff may file a Response no

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later than the Monday before the noting date, addressing only the reasonableness

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of the fees requested. No Reply shall be filed.

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5. The Clerk SHALL issue an Amended Scheduling Order. The only remaining pre-

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trial deadlines include those for: dispositive motions, 39.1 mediation, Motions in

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Limine, the Pretrial Order, trial briefs and Proposed Findings of Fact and

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Conclusions of Law.

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DATED this 20th day of December 2017.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER
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