United States District Court, District of New Hampshire
John J. Mudge, Jr. and Lisa S. Mudge
Bank of America, N.A. and T.D. Bank, N.A. Opinion No. 2015 DNH 062
Joseph A. DiClerico, Jr., Judge.
John J. Mudge, Jr. and Lisa S. Mudge move to strike two affidavits submitted by Bank of America in support of its motion for summary judgment and for other sanctions, contending that Bank of America failed to comply with their discovery requests. Bank of America objects to the motion and seeks sanctions against the Mudges because they continue to seek discovery on matters that have no relevance to the case.
John and Lisa Mudge’s remaining claims against Bank of America, N.A. are for breach of contract, Count I, and breach of the implied covenant of good faith and fair dealing, Count II. Bank of America moved for summary judgment, contending that the Mudges cannot prove those claims because of the limited time Bank of America held the Mudges’ mortgage. Bank of America submitted two affidavits in support of the motion for summary judgment to explain a mortgage discharge that was recorded on August 21, 2014. The affidavits were provided by Dana McElligottt, a MLO-Sr Loan Services Specialist, at ReconTrust Company, and Jesse Lester, Assistant Vice President of Bank of America.
The Mudges filed an objection to the motion for summary judgment and also moved to extend the time for their response, to reopen discovery, and to continue the trial date. The court extended the date for fact discovery to March 2, 2015, to allow the Mudges an opportunity for discovery limited to the issues of “(1) the filing of the discharge of the Mudges’ mortgage on August 21, 2014, and (2) the time period or periods during which Bank of America held the Mudges’ mortgage.” The court specifically directed the Mudges and their counsel that the limited discovery allowed “does NOT include discovery about the note, fees, penalties, offers to purchase the Mudges’ mortgaged property, Bank of America’s responses or lack of response to the Mudges’ various requests and communications, whether or not notice was provided as to transfer of the mortgage, or any modification of the mortgage.” The court also stated that the limited discovery did not include subjects raised in affidavits filed by the Mudges. The court further stated that “[s]anctions may be imposed on the Mudges or their counsel or both if they seek discovery that exceeds the limited discovery allowed by this order.” Order, January 20, 2015.
The court also granted the Mudges leave to file an amended objection to Bank of America’s motion for summary judgment before March 16, 2015. Because of the scheduling changes, the trial date, which was March 3, 2015, was vacated, and will be reset after the motion for summary judgment is resolved, if necessary.
On March 3, 2015, the Mudges filed a motion to strike the affidavits submitted by Bank of America in support of the motion for summary judgment, to strike “Bank of America’s defense in regard to ‘holder’, to preclude Bank of America “from referring to order [sic] relying in any way on the missing Note, ” to order Bank of America to pay the Mudges $90, 000, and to order Bank of America to pay the Mudges’ attorneys’ fees. In support, the Mudges represent that Bank of America refused to allow discovery about the affidavits submitted with the motion for summary judgment, failed to comply with the requirement for initial disclosures under Federal Rule of Civil Procedure 26(a)(1)(A), provided a “disingenuous” response to the Mudges’ request under Federal Rule of Civil Procedure 30(b)(6), and “committed other critical and continuing misrepresentations.” Bank of America responds that the Mudges’ motion is not properly presented, is untimely, and should be disregarded.
Bank of America also demonstrates that the Mudges failed to subpoena the witnesses for depositions, that Bank of America responded to the Mudges’ interrogatories, and that Bank of America sufficiently supplemented its discovery responses. Bank of America seeks an award of attorneys’ fees incurred in responding to the motion to strike.
The Mudges rely on Federal Rule of Civil Procedure 37 to support their claim for sanctions. Under Rule 37, parties may move for an order to compel disclosure or discovery, seek sanctions for failure to comply with a court order, seek sanctions for failing to disclose discovery or to supplement an earlier response, or seek sanctions for failure to attend a deposition. The Mudges do not provide more specific guidance as to their legal theories.
A. Discovery about Affidavits
As is noted above, Bank of America submitted the affidavits of Lester and McElligott in support of its motion for summary judgment. The affidavits pertained to the mortgage discharge filed on August 21, 2014. The Mudges were granted limited discovery on the issue of the mortgage discharge. As Bank of America points out, the Mudges’ motion, prepared by counsel, is difficult to follow to the point of being nearly unintelligible.
It appears that the Mudges fault Bank of America for failing to produce Lester and McElligott for depositions. The court may order sanctions if a party or a person designated by a party under Rule 30(b)(6) fails to attend a deposition, after being properly served with notice. Fed.R.Civ.P. 37(d)(1)(A)(i). In addition, a motion for sanctions under Rule 37(d)(1) “must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.” Fed.R.Civ.P. 37(d)((1)(B).
Lester and McElligott are not parties in this action, but rather, they are third-party witnesses. Therefore, Rule 37(d)(1)(A)(i) does not apply. See Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, 8A Federal ...