Bank of N.Y. Mellon v. Witty
Bank of N.Y. Mellon v. Witty
2019 WL 13233535 (D.N.J. 2019)
May 14, 2019
Hammer, Michael A., United States Magistrate Judge
Summary
The court ruled on the topics of the deposition and the notice to produce documents, and denied BNYM's motion for sanctions. The parties were directed to meet and confer to explore alternatives to travel for the deposition of the Rule 30(b)(6) witness.
THE BANK OF NEW YORK MELLON, Plaintiff,
v.
ANDREW J. WITTY, et al., Defendants.
ANDREW J. WITTY, Plaintiff,
v.
THE BANK OF NEW YORK MELLON, et. al., Defendants
v.
ANDREW J. WITTY, et al., Defendants.
ANDREW J. WITTY, Plaintiff,
v.
THE BANK OF NEW YORK MELLON, et. al., Defendants
Civil Action No. 15-500 (ES) (MAH), Civil Action No. 15-8486 (ES) (MAH)
United States District Court, D. New Jersey
Signed May 14, 2019
Counsel
Andrew J. Witty, Short Hills, NJ, Pro Se.Francis X. Crowley, Blank Rome LLP, Princeton, NJ, Thomas Michael Brodowski, Jr., Blank Rome LLP, Philadelphia, PA, for Defendant.
Hammer, Michael A., United States Magistrate Judge
ORDER
*1 THIS MATTER having come before the Court by way of the motion of Bank of New York Mellon (“BNYM”) for a protective order and the imposition of sanctions against Andrew Witty, D.E. 51;[1]
and the Court having considered Andrew Witty's opposition, D.E. 55, and BNYM's reply, D.E. 56;
and the Court having considered this matter on the papers pursuant to Local Civil Rule 78.1;
*2 and it appearing that BNYM's motion for a protective order is a discovery dispute arising from a notice of deposition and notice to produce that Andrew Witty served on BNYM in February 2019, less than two weeks before the February 28, 2019 deadline to complete fact discovery pursuant to an Order issued by this Court on January 15, 2019, D.E. 47;
and it further appearing that Andrew Witty's notice called for BNYM to produce, pursuant to Federal Rule of Civil Procedure 30(b)(6), a representative or representatives to testify regarding nineteen separate topics, see Amended Notice of Taking Deposition, D.E. 51-2, at pages 4-6, Nos. 2-19;
*3 and as pertains to the Rule 30(b)(6) deposition, BNYM contending that the deposition notice should be stricken because it provided only nine days notice and therefore failed to comply with Rule 30(b)(1)’s requirement of “reasonable written notice;”[3]
and BNYM further arguing that the deposition notice should be stricken because Andrew Witty issued it on or about February 21, 2019, while fact discovery was due to close on February 28, 2019;
and it being the case that Andrew Witty served the deposition notice within the February 28, 2019, deadline to complete discovery;
and BNYM having failed to demonstrate any prejudice arising from the fact that the deposition notice provided only nine days notice, particularly where, as here, the Court will afford the parties an opportunity to meet and confer on the date for the deposition;
and BNYM further arguing that the subjects noticed in the Rule 30(b)(6) notice include topics that are irrelevant to this action, or duplicative of the written discovery that Andrew Witty has already received;
and the Court finding, for the reasons set forth herein, that although certain of the topics seek information that is irrelevant or are far too vague to provide adequate notice to BNYM of a discoverable area of inquiry, certain of the topics seek information that is discoverable under Rule 26;[4]
*4 and it further appearing that BNYM argues that compliance with the deposition notice may require the production of a BNYM corporate representative who is located in Florida;
and the Court finding that it is appropriate to require the parties to meet and confer on the location of the deposition;[5]
and it further appearing that BNYM also seeks the imposition of sanctions against Andrew Witty;
and the Court finding that BNYM has failed to satisfy its burden of showing that Rule 37 sanctions are warranted at this time;[6]
*5 and it further appearing that neither party appeared for the telephone status conference scheduled on May 13, 2019;
and for good cause shown;
IT IS on this 14th day of May 2019,
ORDERED THAT:
1. Bank of New York Mellon's motion for a protective order is granted in part and denied in part, as follows:
a. That part of Andrew Witty's Notice of Deposition and Demand for Production of Documents, D.E. 51-2, that seeks the production of documents is stricken in its entirety.
b. The deposition of a BNYM representative under Rule 30(b)(6) shall proceed, subject to the limitations set forth in footnote 4, above.
2. BNYM's application for the imposition of sanctions under Federal Rule of Civil Procedure 37 is denied without prejudice.
3. The parties shall meet and confer on the scheduling of the BNYM Rule 30(b)(6) deposition. The parties further will meet on the location of the deposition. The deposition shall take place on or before June 30, 2019.
4. On or before May 24, 2019, the parties will submit a JOINT status letter to the Court. The status letter shall inform the Court of the date and location of the BNYM Rule 30(b)(6) deposition.
a. The parties are advised that if they cannot reach agreement, they will be ordered to appear in the Courtroom of the Undersigned to continue their meet and confer in Court.
Footnotes
In Civil Action No. 15-500, BNYM filed a residential foreclosure action in New Jersey Superior Court, Law Division, Essex County, which Andrew Witty removed to this Court. See generally Notice of Removal, D.E. 1. In that action, Andrew Witty claims that he is not in default on the mortgage, and that BNYM should be barred from foreclosing on the mortgage or claiming an ownership interest in the underlying mortgage note. See generally Compl., D.E. 1, Exh. 1.
In Civil Action No. 15-8486, Andrew Witty alleges that BNYM, Countrywide Home Loans, Inc., Bank of America, N.A., and BAC Home Loans Servicing, L.P., unlawfully instituted the foreclosure action. See generally Compl., Civ. No. 15-8486, D.E. 1. Andrew Witty contends that Defendants failed to validate the debt, thereby “violating state and federal law.” Id. at ¶¶ 4-5. He further contends that Defendants keep demanding payment on the Note and did not serve upon him “written notice of intent to foreclose.” Id. at ¶¶ 4-10. He also contends Defendants have not demonstrated a right to enforce the Note. Id. at ¶¶ 11-13. Lastly, Mr. Witty alleges that Defendants have “by fraud and deceit levied excessive charges with value over the amount of the Note and monthly payments originally created ....” Id. at ¶ 14. Accordingly, Plaintiff's Complaint sets forth counts for: (1) negligence, (2) declaratory judgment, (3) specific performance, (4) accounting, (5) breach of contract, (6) violation of the Fair Debt Collections Practices Act (15 U.S.C. § 1692, et seq.), (7) a temporary restraining order and preliminary injunction to enjoin the foreclosure sale, (8) fraud and deceit, as well as punitive damages, (9) quiet title, and (10) rescission and restitution under the Truth in Lending Act, 15 U.S.C. § 1601, et seq.
Although these matters have never been formally consolidated, the Court has been considering the matters together for the purposes of discovery and, accordingly, discovery disputes since at least June 2016. See Order, June 20, 2016, Civ. No. 15-500, D.E. 18 (“... [O]n or before June 27, 2016, Andrew Witty and The Bank of New York Mellon shall jointly submit a proposed Amended Scheduling Order for any deadline extensions sought in both this matter and Civ. No. 15-8486 (ES).”). Unless as noted otherwise, citations in this Order are to Civ. No. 15-500. But most, if not all, of the discovery at issue, as well as the discovery extensions and disputes, have pertained to both matters. Therefore, the dockets are almost identical after the Court's June 20, 2016 Order in Civ. No. 15-500, and the Court's citations to that docket are solely for ease of reference.
The Court will strike Andrew Witty's notice to produce documents in its entirety. The Court has carefully scrutinized the notice to produce, and concludes that the document requests therein constitute a failure to comply with the Court's Scheduling Orders. The Court further concludes that Andrew Witty has not shown good cause to serve those requests at this late date in the litigation under either Federal Rule of Civil Procedure 16, or Rule 26. Discovery in this case commenced no later than January 2017, when the Court issued a Scheduling Order that required all interrogatories and document-production requests to be served by February 13, 2017, and responded to within sixty days of receipt. See Amended Scheduling Order, January 3, 2017, D.E. 23. The Court extended the deadline to complete fact discovery several times. See, e.g., Amended Scheduling Order, Apr. 5, 2017, D.E. 24; Amended Scheduling Order, Oct. 20, 2017, D.E. 27. In June 2017, the Court extended the fact discovery deadline to October 31, 2017. See Amended Scheduling Order, June 29, 2017, D.E. 25. The Court did not extend the deadline to raise disputes regarding written discovery but directed that “any notices of depositions by either side must be served by August 28, 2017.” Id. During this process, the Court presided over and adjudicated several discovery disputes. See, e.g., Amended Scheduling Order, Mar. 23, 2018, D.E. 30 (ordering BNYM to produce to Andrew Witty an index identifying the correlation between the records produced and Andrew Witty's document-production requests); Order, July 11, 2018, D.E. 34 (ordering BNYM to produce all outstanding documents by July 25, 2018, and to supplement interrogatory answers). The most recent discovery deadline was February 28, 2019, when the Court extended the deadline because Andrew Witty had to serve responses to BNYM's discovery requests. See Order, Jan. 14, 2019, D.E. 47.
The discovery disputes that this Court has resolved notwithstanding, the deadline to serve written discovery requests expired on February 13, 2017, more than two years ago. Andrew Witty's opposition to BNYM's motion completely fails to explain why these documents are not, as BNYM asserts, redundant with the documents already produced in this matter. It is clear from the record and this Court's adjudication of several discovery disputes, including the disputes that culminated in the Court's March 23, 2018 and July 11, 2018 Orders, D.E. 30 & 34, that Andrew Witty has had ample opportunity to seek document discovery, and that he indeed sought and received documents in discovery. In fact, BNYM represents that it has produced more than 4,000 pages of documents. BNYM Reply Brief, Mar. 25, 2019, D.E. 56, at 4, 6, 7.
Even if Andrew Witty's newest document requests did not overlap with the documents he has already received, the request is still fatally flawed. Andrew Witty's opposition does not articulate good cause under Federal Rule of Civil Procedure 16 to explain why he could not have sought these sixty-one categories of documents much earlier, even if not within the February 13, 2017 deadline to serve written discovery requests. Alternatively, if Andrew Witty requested the documents and BNYM did not produce them, Mr. Witty had ample opportunity to raise the issue with the Court. He did not. In fact, the Court's review of the record establishes that the last submission from Andrew Witty raising any issue concerning BNYM's production of documents, in either Civ. No. 15-500 or 15-8486, was on December 18, 2017. Letter from Andrew Witty, Civ. No. 15-500, Dec. 18, 2017, D.E. 28. That issue was resolved during a March 23, 2018 conference and the Court's March 23, 2018 Order, D.E. 30. At no point thereafter, through several other discovery disputes, in either Civ. No. 15-500 or Civ. No. 15-8486, did Mr. Witty seek relief for documents he had demanded, but which BNYM had not produced.
Federal Rule of Civil Procedure 26(b)(2)(C) directs the Court to “limit the frequency or extent of discovery otherwise allowed by these rules if it determines that ... the discovery sought is unreasonably cumulative or duplicative [or] the party seeking discovery has had ample opportunity to obtain the information by discovery in the action ....” In this case, Andrew Witty has had ample opportunity to obtain document discovery, and to raise with the Court any deficiency in the BNYM's production of discovery to him. Mr. Witty fails to show good cause under either Rule 26(b) or Rule 16 as to why it is appropriate at this late date to seek new document discovery. Accordingly, the Court will strike that part of the notice that seeks documents.
BNYM notes that the Local Civil Rules for the District of New Jersey do not impose a minimum notice requirement, but observes that Local Civil Rule 30.1 for the District of Delaware imposes a ten-day notice requirement, and that commenters have posited that the prevailing practice is fourteen days. BNYM's Brief in Support, Feb. 27, 2019, D.E. 51-1, at 9 (citations omitted). Because this Court will allow the parties to meet and confer on proposed dates, this issue is moot.
To the extent BNYM argues that certain topics should be stricken as seeking discovery that is irrelevant to the issues in this case, the Court agrees in part and will strike the irrelevant topics. However, to the extent BNYM argues that Andrew Witty should be precluded from deposing a BNYM representative on otherwise relevant topics because Mr. Witty has already received written discovery pertaining to those topics, the Court rejects that argument entirely. See Murphy v. Kmart Corp., 255 F.R.D. 497, 507 (D.S.D. 2009) (“ ‘Producing documents and responding to written discovery is not a substitute for providing a thoroughly educated Rule 30(b)(6) deponent.’ ”) (quoting Great Amer. Ins. Co. of New York v. Vegas Constr. Co., 251 F.R.D. 534, 541 (D. Nev. 2008). As indicated below, the Court finds that certain of the topics fairly seek discovery that is relevant under Rule 26.
Accordingly, the Court finds as follows with regard to the topics set forth in Andrew Witty's Rule 30(b)(6) notice:
Topic 1: This topic is stricken. Although Andrew Witty may ask questions pertaining to the relevant documents, the documents speak for themselves.
Topic 2: This topic is stricken as vague and overbroad, without prejudice to Andrew Witty's right to ask about the Defendant's practices or actions as relates to his particular loan or mortgage.
Topic 3: This topic is stricken as seeking information that is irrelevant to this action.
Topic 4: This topic may proceed.
Topic 5: This topic may proceed.
Topic 6: This topic is stricken as overbroad and seeking irrelevant information.
Topics 7-10: These topics may proceed.
Topic 11: This topic is stricken. The signatories to the documents are self-evident from the documents.
Topic 12: This topic is stricken as seeking irrelevant information.
Topic 13: This topic may proceed.
Topic 14: This topic may proceed.
Topic 15: This topic may proceed, except that Andrew Witty is reminded that written discovery, including the production of documents, is closed.
Topic 16: This topic may proceed.
Topic 17: This topic is stricken insofar as it appears to call for BNYM's legal strategy.
Topic 18: This topic is stricken insofar as the relevant documents speak for themselves, and the remainder of the topic calls for information that is irrelevant to this matter.
Topic 19: To the extent this topic calls for BNYM's practices or policies in ensuring that Andrew Witty's loan or handling of said loan complied with New Jersey law, the topic may proceed.
The parties are reminded that for any dispute arising at a deposition, the parties must contact the Chambers of the Undersigned to seek resolution before adjourning the deposition. Failure to comply will be deemed a waiver of the right to seek judicial intervention for a dispute arising at that deposition. See Amended Scheduling Order, Jan. 3, 2017, D.E. 23, at ¶ 5.
Neither party addresses the law with respect to the appropriate location for the deposition of the Rule 30(b)(6) witness. Moreover, it is evident from the parties’ submissions that they have not attempted to meet and confer to explore whether alternatives to travel, such as video-conferencing, may be appropriate. Although there is no bright-line rule within the Third Circuit, as a general proposition, “the deposition of a corporate officer or employee should usually take place at the corporation's principal place of business” or at the representative's “place of business or employment.” L.S.S. Realty Corp. v. Vanchlor Catalysts, LLC, Civil No. 04-197, 2005 WL 638056, at *2 (E.D. Pa. Mar. 16, 2005). See also Redland Soccer Club Inc. v. Department of the Army of U.S., 55 F.3d 827, 853 (3d Cir. 1995) (finding that district court did not abuse discretion in ordering plaintiff's counsel to travel to residence or place of employment for witnesses to be deposed, rather than ordering depositions to occur in litigation forum). However, considerations such as financial hardship, the relative resources of the parties, and equitable considerations may provide good cause to consider an alternative location. See, e.g., Shapiro v. Delta Boats Inc., Civil No. 89-4267, 1990 WL 11629, at *2 (E.D. Pa. Feb. 9, 1990); Sugarhill Records Ltd v. Motown Record Corp., 105 F.R.D. 166, 171 (S.D.N.Y. 1985). Given that the parties clearly have not adequately met and conferred, the Court will direct them to do so, with the foregoing principles in mind.
This Court looks to the Poulis factors in considering the imposition of sanctions. See Poulis v State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984). Those factors are as follows:
(1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.
Id. Moreover, “[a]ny sanction must be ‘just’; second, the sanction must be specifically related to the particular ‘claim’ which was at issue in the order to provide discovery.” Insurance Corp. of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 707 (1982) (quoted in Harris v. City of Philadelphia, 47 F.3d 1311, 1331 (3d Cir. 1995)).
Measured against the foregoing standards, BNYM's motion fails at this time. First, BNYM's application is perfunctory at best. It provides no analysis of the foregoing factors. Also, the motion is less than clear as to what specifically constitutes the sanctionable conduct. Second, the application fails to specify precisely what sanction or sanctions BNYM seeks. There are several sanctions available under Rule 37, but BNYM is unclear as to what it believes is appropriate here. And to the extent BNYM seeks dismissal of Mr. Witty's claims, BNYM has failed to make an adequate showing as to the propriety of such an extreme sanction. Third, to the extent the application rests on Andrew Witty's failure to provide outstanding discovery responses, that deadline was March 31, 2019, after BNYM submitted its reply brief, and BNYM has not since informed the Court that Mr. Witty failed to meet the March 31st deadline. Finally, to the extent the application relies on Andrew Witty's notice of deposition and document-production request, the Court has concluded that the Rule 30(b)(6) deposition is appropriate as limited above.