Daugherty v. Equifax Information Services, LLC

Filing 154

ORDER: The Court ORDERS that the Defendant Ocwen Loan Servicing, LLC's 149 MOTION to Continue Trial and Amend Scheduling Order be DENIED, and that Defendant Ocwen Loan Servicing, LLC's 152 Motion for Emergency Hearing on Motion to Continue be TERMINATED AS MOOT. Signed by Judge Irene C. Berger on 5/12/2016. (cc: attys; any unrepresented party) (slr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

DAVID M. DAUGHERTY,
Plaintiff,
v.

CIVIL ACTION NO. 5:14-cv-24506

OCWEN LOAN SERVICING, LLC,
Defendant.

ORDER

The Court has reviewed the Defendant Ocwen Loan Servicing, LLC’s Motion to Continue
Trial and Amend Scheduling Order (Document 149) and Memorandum in Support of Motion to
Continue Trial and Amend Scheduling Order (Document 150). The Court has also reviewed the
Defendant Ocwen Loan Servicing, LLC’s Motion for Emergency Hearing on Motion to Continue
(Document 152).
In these motions, the Defendant requests that this Court continue the trial date for the
above-styled action, currently scheduled for May 16, 2016. (Def.’s Mem. in Supp. of Mot. to
Cont. Trial, at 1-2.) The Defendant provides two bases for this motion. First, the Defendant cites
the prejudicial impact of the Plaintiff’s pending deposition of a representative of Equifax
Information Services, LLC (Equifax), scheduled for May 12, 2016. This deposition was the
subject of Defendant Ocwen Loan Servicing, LLC’s Motion for Protective Order (Document 139).
After a hearing on the motion on May 11, 2016, Magistrate Judge Omar J. Aboulhosn issued an
Order Confirming Pronounced Order of the Court (Document 145), wherein the Magistrate Judge

denied Ocwen’s motion for a protective order, finding that the relevant deposition was narrowly
circumscribed to the authentication of documents produced to the Plaintiff by Equifax, that the
deposition was permissible under Federal Rule of Civil Procedure 32(a)(3)(B), and that the
deposition was “necessary to provide all facts to the jury for its decision.” (Order Confirming
Pronounced Order of the Court, at 1-2.) Now, the Defendant argues that the Plaintiff has “never
disclosed that he intended to use the documents” which will be the subject of the deposition, and
failed to identify the documents in the disclosures required by Federal Rule of Civil Procedure
26(a)(3). (Def.’s Mem. in Supp. of Mot. to Cont., at 4.) The Defendant therefore argues that
absent a continuance, it will be “precluded from cross-examining Equifax” on issues relating to
these documents, and will also forfeit “the opportunity to depose other entities that may rebut
Equifax’s testimony.” (Id. at 4-5.) Second, the Defendant argues that because the deposition is
scheduled to take place “nearly eight months after the Motions in Limine deadline” and “four days
before the scheduled start of trial,” it will be prejudiced without a continuance, because it will be
unable to prepare motions in limine based on the transcript and video recording of the relevant
deposition. (Id. at 5-6.)
The decision as to whether to continue a trial date or otherwise modify a scheduling order
is vested in the sound discretion of the trial court. Lathan v. Crofters, Inc., 492 F.2d 913 (4th Cir.
1974). In determining whether to grant a continuance, courts consider whether the party seeking
the continuance has shown good cause. NKR, Inc. v. Forestland Group, LLC, 2005 WL 1123629,
at *3 (W.D.Va. May 11, 2005) (Jones, C.J.). The trial court’s decision will not be overturned
absent a showing of abuse of discretion. Lathan, 492 F.2d at 913.

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Here, the Court finds that the Defendant has failed to provide good cause for a continuance
of the trial date. The Defendant retains the right to object at trial to the admissibility of the
Equifax documents, and any deposition testimony relevant thereto, based on the purported failure
of the Plaintiff to comply with the requirements of Rule 26(a)(3). Further, both the Defendant
and the Plaintiff in this case listed a corporate representative of Equifax as a potential witness at
trial. (See Proposed Integrated Pretrial Order, at 2-5) (Document 105). Because each party
advised the Court about the possibility of calling as a witness a corporate representative of Equifax,
the Court finds it unlikely that the deposition in question, and the documents relevant thereto,
represent such a significant change to the nature of this litigation as to merit a continuance of the
trial date.1 This is particularly true in light of the Plaintiff’s representations, on the record and in
filings with this Court, that the purpose of the deposition is merely to authenticate documents
produced by Equifax. (See Amended Notice of Deposition, at 1-2) (Document 135).
The Court finds the Defendant’s arguments concerning potential motions in limine to be
similarly unavailing. While motions in limine provide a convenient procedural vehicle for parties
to resolve evidentiary issues with the Court prior to trial, they are not the exclusive means for a
party to object to the introduction of purportedly inadmissible evidence.
Wherefore, after careful consideration, the Court ORDERS that the Defendant Ocwen
Loan Servicing, LLC’s Motion to Continue Trial and Amend Scheduling Order (Document 149)

1

While neither party in this case requested a transcript of the hearing held on May 11, 2016, before the Honorable
Omar J. Aboulhosn, Magistrate Judge for the Southern District of West Virginia, on the Defendant’s motion for a
protective order, the Court has reviewed the audio recording of that hearing. Therein, lead counsel for the Defendant
repeatedly acknowledges placing a corporate representative from Equifax on the list of potential witnesses for trial,
and admits to having “taken the risk” of not deposing Equifax prior to trial. The Court finds that this strategic
litigation decision by the Defendant further cuts against a need to continue the trial. Both parties were clearly aware
that a corporate representative of Equifax could appear at trial, and the Court assumes that both parties prepared
accordingly. The fact that the Plaintiff will use a deposition, rather than a direct examination at trial, to authenticate
documents, does not prejudice the Defendant in any material way.

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be DENIED, and that the Defendant Ocwen Loan Servicing, LLC’s Motion for Emergency
Hearing on Motion to Continue (Document 152) be TERMINATED AS MOOT.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:

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May 12, 2016