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Sellers v. SN Servicing Corp.

United States District Court, M.D. Louisiana

August 11, 2017




         Before the Court is Defendants' Motion to Compel Discovery Responses (R. Doc. 32) filed on July 17, 2017. Pursuant to Local Rule 7(f), Plaintiff had twenty-one days after service of the motion to file an opposition. Upon Plaintiff's motion, the Court extended Plaintiff's deadline to file an opposition to August 9, 2017. (R. Doc. 40). Plaintiff has not filed an opposition as of the date of this Order. Accordingly, the motion is deemed to be unopposed.

         I. Background

         On June 9, 2016, Raymond Sellers (“Plaintiff”) commenced this action for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”) against SN Servicing Corporation, William A. Fogleman, and Housing Opportunity Partners REO, LLC (collectively, “Defendants”). (R. Doc. 1). Plaintiff has filed an Amended Complaint. (R. Doc. 24). Plaintiff seeks damages allegedly incurred as a result of seeking cancellation of a sheriff's sale of his home, as well as recovery of “several thousands of dollars” in overcharged interest on the underlying mortgage. (R. Doc. 24 at 2-5).

         Plaintiff alleges that he “has suffered actual damages and injury, including, but not limited to, the costs to stop the sheriff's sale including attorney's fees, stress, humiliation, anxiety, extreme mental anguish and suffering, emotional distress, and excessive interest for which he should be compensated in amounts to be proven at trial.” (R. Doc. 24 at 5). Plaintiff further states that he seeks recovery for actual damages under the FDCPA; excessive interest charged and collected by Defendants; “additional damages”; and attorney's fees and costs. (R. Doc. 24 at 5-6).

         On March 3, 2017, Defendants served their First Set of Interrogatories and Requests for Production of Documents on Plaintiff. (R. Doc. 32-2).

         On April 19, 2017, after receiving an extension of the deadline to respond from Defendants, Plaintiff provided his responses to the discovery requests. (R. Doc. 32-3).

         On June 14, 2017, defense counsel sent Plaintiff's counsel an e-mail outlining alleged deficiencies with Plaintiff's responses to Interrogatory Nos. 8, 10, 12, 17, 19, and 20, and Requests for Production Nos. 13, 14, 16, and 17. (R. Doc. 32-4 at 1-2). Defense counsel requested supplemental responses by June 28, 2017. (R. Doc. 32-4 at 2).

         On June 30, 2017, having received no supplemental responses, defense counsel informed Plaintiff's counsel that Defendants intended on filing a motion to compel regarding the deficient responses. (R. Doc. 32-5). Plaintiff's counsel responded by representing that he had been “out of state” and would discuss the deficiencies with Plaintiff on July 3, 2017, and then provide defense counsel with an update. (R. Doc. 32-6 at 2). Defense counsel agreed. (R. Doc. 32-6 at 1).

         On July 5, 2017, defense counsel sent Plaintiff's counsel another e-mail requesting an update on the status of Plaintiff's supplemental responses. (R. Doc. 32-6 at 1).

         On July 7, 2017, Plaintiff's counsel represented that he was meeting with Plaintiff, and that Plaintiff would provide supplemental responses on July 10, 2017. (R. Doc. 32-7).

         On July 10, 2017, Plaintiff provided “amended” responses to the discovery requests. (R. Doc. 32-8). At the same time, Plaintiff's counsel informed defense counsel that he was “working up the payments on a spread sheet to determine the excessive interest charges.” (R. Doc. 32-9). Defendants represent that they have not been provided with the requested supplemental information as of the date of the filing of the Motion to Compel. (R. Doc. 32-1 at 3).

         On July 13, 2017, Defendants took Plaintiff's deposition. (R. Doc. 32-12). At his deposition, Plaintiff testified that he had in his possession certain loan-related documents and records of payments that he had not produced in discovery, further stating that some of the documents were thrown away in the past few years in light of water damage. (R. Doc. 32-12 at 7-9). Plaintiff also asserted that he needed “two or three weeks” to get the documents together to produce. (R. Doc. 32-12 at 10-11). Plaintiff's counsel also represented at the deposition that he had additional responsive documents to produce and that he would provide them by e-mail during a break in the deposition. (R. Doc. 32-12 at 14-18). Defendants represent that Plaintiff's counsel emailed more than 200 pages of documents to defense counsel during the deposition. (R. Doc. 32-1 at 4; see R. Doc. 32-12 at 18-19).

         Defendants now seek an order compelling Plaintiff to respond fully to Interrogatory Nos. 10, 12, and 17, and Request for Production No. 13. (R. Doc. 32).

         11. Law and Analysis

         A. Legal Standards

         “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed.R.Civ.P. 26(b)(1). The court must limit the frequency or extent of discovery if it determines that: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C).

         “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). Rule 26(c)'s “good cause” requirement indicates that the party seeking a protective order has the burden “to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).

         Rules 33 and 34 provide a party with 30 days after service of the discovery to respond or object. See Fed. R. Civ. P. 33(b)(2) and 34(b)(2)(A). If a party fails to respond fully to discovery requests made pursuant as to Rules 33 and 34 in the time allowed by the Federal Rules of Civil Procedure, the party seeking discovery may move to compel disclosure and for appropriate sanctions under Rule 37. An “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond.” Fed.R.Civ.P. 37(a)(4).

         B. Analysis

         1.Interrogatory No. 10

         Defendants' Interrogatory No. 10, and Plaintiff's responses to Interrogatory No. 10, are as follows:

Please Identify, itemize and describe in specific detail the amount(s) for alleged excessive interest charged and collected by the Defendants and Identify your ...

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