United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
the Court is the Motion to Compel Responses to
Interrogatories, Requests for Admission, and Requests for
Production of Documents (R. Doc. 34) filed by Plaintiff,
GMFS, LLC (“GMFS”) on March 15, 2019. Defendant,
Cenlar FSB (“Cenlar”) opposes the motion. (R.
Doc. 39). GMFS filed a Reply (R. Doc. 48).
before the Court is the Motion to Compel (R. Doc. 40) filed
by Cenlar on April 12, 2019. GMFS opposes the motion. (R.
Doc. 49). Cenlar filed a Reply. (R. Doc. 58).
argument was held on July 19, 2019. (R. Doc. 61). Pursuant to
the Court's July 19, 2019 Order (R. Doc. 61), the parties
submitted correspondence to the Court and participated in a
subsequent telephone conference on August 19, 2019. (R. Doc.
73). Following that telephone conference, the parties
participated in additional court-ordered discovery,
participated in an in-chambers conference on September 6,
2019 (R. Doc. 75), GMFS submitted a Status Report (R. Doc.
76) on September 9, 2019 as ordered, and participated in a
final telephone conference (R. Doc. 77) on September 19,
2019. At the September 19, 2019 telephone conference, the
Court indicated that no further information was needed to
resolve the pending discovery motions.
Court also notes that it previously issued an Order (R. Doc.
57) granting the parties' joint request to modify the
scheduling order and extend the discovery deadlines, wherein
the Court stated that an amended scheduling order would be
issued upon resolution of the pending discovery related
initiated this litigation with the filing of its Complaint
(R. Doc. 1) on May 25, 2018. GMFS alleges that it entered
into a Subservicing Agreement with Cenlar on or about
December 14, 2012, wherein the parties agreed that Cenlar
would service certain mortgage loans for GMFS. (R. Doc. 1 at
2). GMFS alleges that, after the August 2016 flood event in
Baton Rouge and the surrounding area, it began receiving
complaints about Cenlar's loan servicing, causing
numerous problems and exposing GMFS to various penalties. (R.
Doc. 1 at 3-5). GMFS then terminated the Subservicing
Agreement with Cenlar, and Cenlar withheld an “Exit
Fee, ” to which GMFS alleges it is entitled. (R. Doc. 1
at 7). GMFS also seeks recovery of a deconversion fee and
damages. (R. Doc. 1 at 7, 10).
propounded its First Set of Interrogatories, Requests for
Admission, and Requests for Production of Documents to Cenlar
on October 9, 2018. (R. Doc. 34-1 at 4). Cenlar provided
responses to GMFS on January 16, 2019, which GMFS alleges are
“incomplete, evasive or otherwise inadequate.”
(R. Doc. 34-1 at 4). GMFS filed its Motion to Compel after
transmitting correspondence regarding Cenlar's
purportedly deficient responses. (R. Doc. 34-1 at 4).
served its Request for Production and Interrogatories on
October 2, 2018. (R. Doc. 40-1 at 6). Rather than providing
written responses to Cenlar's Interrogatories, GMFS
produced business records pursuant to Fed.R.Civ.P. 33(d). (R.
Doc. 40-1 at 8). Cenlar then filed its Motion to Compel. (R.
Court held oral argument on July 19, 2019. (R. Doc. 62).
Pursuant to the Order issued following oral argument, the
parties were required to engage in additional conferencing,
as well as providing certain documents to the Court for
in camera review. (R. Doc. 63). The parties provided
an update to the Court by way of correspondence dated August
15, 2019, and an additional telephone conference was held
with the Court on August 19, 2019, wherein the parties were
able to narrow the issues remaining in dispute. (R. Doc. 73).
Following that telephone conference, the parties participated
in a subsequent conference in chambers on September 6, 2019,
wherein the parties facilitated the Court's understanding
of certain production and discovery issues. (R. Doc. 75).
GMFS provided a supplemental Status Report (R. Doc. 76) on
September 9, 2019, outlining its review of the Complaint Logs
provided by Cenlar. On September 19, 2019, the parties
participated in a final telephone conference wherein the
Court advised that it considered the pending motions fully
briefed and ripe for resolution.
Law and Analysis
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).
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)).
of the Federal Rules of Civil Procedure provides for the
service of written interrogatories. A party seeking discovery
under Rule 33 may serve interrogatories on any other party
and the interrogatory “may relate to any matter that
may be inquired into under Rule 26(b).” Fed.R.Civ.P.
33(a)(2). “If the answer to an interrogatory may be
determined by examining . . . a party's business records
(including electronically stored information), and if the
burden of deriving or ascertaining the answer will be
substantially the same for either party, the responding party
may answer by: (1) specifying the records that must be
reviewed, in sufficient detail to enable the interrogating
party to locate and identify them as readily as the
responding party could; and (2) giving the interrogating
party a reasonable opportunity to examine and audit the
records and to make copies, compilations, abstracts, or
summaries.” Fed.R.Civ.P. 33(d).
of the Federal Rules of Civil Procedure provides for the
discovery of documents and tangible items. A party seeking
discovery must serve a request for production on the party
believed to be in possession, custody, or control of the
documents or other evidence. Fed.R.Civ.P. 34(a). The request
is to be in writing and must set forth, among other things,
the desired items with “reasonable
particularity.” Fed.R.Civ.P. 34(b)(1)(A).
must respond or object to interrogatories, requests for
production, and requests for admission within 30 days after
service. See Fed. R. Civ. P. 33(b)(2); Fed.R.Civ.P.
34(b)(2)(A); Fed.R.Civ.P. 36(a)(3). This default date may be
modified by stipulation between the parties. Fed.R.Civ.P.
29(b). If a party fails to respond fully to discovery
requests made pursuant to Rule 33 or Rule 34 in the time
allowed by the Federal Rules of Civil Procedure, the party
seeking discovery may move to compel responses 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.
GMFS's Motion to Compel
seeks to compel Cenlar's response to certain
interrogatories and requests for production of
documents. The Court will address the substantive
issue below based on the representations made in the August
15, 2019 correspondence received from the parties. (R. Doc.
73 at 5-17).
continues to request the Court compel Cenlar's response
to Interrogatory Nos. 6-11. These interrogatories ask Cenlar
to identify persons who communicated with a government
regulator concerning the Subservicing Agreement, the
Customers, or regarding any Consumer or Transfer Regulatory
Issues, as those terms are defined in the requests. (R. Doc.
34-2 at 3-4). Cenlar argues that the requests “are
impermissibly vague and susceptible to multiple
interpretations, ” and that the requests are not
relevant because “Plaintiff's Complaint does not
allege that it has been subject to any regulatory
investigation or finds as a result of the subservicing
relationship.” (R. Doc. 39 at 9). Cenlar also argues
that the defined terms inappropriately import legal
conclusions. (R. Doc. 39 at 10).
Complaint, GMFS alleges that the Subservicing Agreement
required Cenlar to “perform its services… (iv)
in compliance and in accordance with the provisions of this
Agreement and Applicable Requirements, ” that
“Cenlar's servicing caused numerous other problems
as well, exposing GMFS to Dodd-Frank and other ...