UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John J. Mudge, Jr. and Lisa S. Mudge

v. Civil No. 13-cv-421-JD Opinion No.

Bank of America, N.A. and T.D. Bank, N.A.

O R D E R

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.

Background

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

2 seek discovery that exceeds the limited discovery allowed by this

order.”1 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.

Discussion

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

1 Last December, in an order quashing a notice of deposition served by counsel for the Mudges, the court stated: “As the court has explained repeatedly, this case is not about a foreclosure. The foreclosure was enjoined and never occurred. Therefore, the New Hampshire law pertaining to foreclosure is inapposite to the summary judgment entered in this case. Similarly, the Mudges’ concerns about the location of the note are not relevant to the claims they brought against Bank of America.” Order, Oct. 24, 2014, doc. no. 78, at 9. In that order, the court put the Mudges and their counsel on notice that “[s]anctions may include an order that the Mudges and/or counsel pay Bank of America’s costs and attorneys’ fees incurred” in responding inappropriate discovery requests.

3 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.

4 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 Practice & Procedure § 2103,

3d edition (2014).

The documents submitted by the parties in support of and in

opposition to the motion to strike show that the Mudges’ counsel

5 attempted to schedule depositions of Lester and McElligott by

asking counsel for Bank of America to accept service of subpoenas

for their depositions. Counsel for Bank of America explained to

the Mudges’ counsel that he had not properly sought the

depositions of third-party witnesses and that he would have to

serve them with the subpoenas. Despite that helpful instruction,

counsel failed to properly subpoena the witnesses for the

depositions. See Fed. R. Civ. P. 30(a)(1). Therefore, Lester

and McElligott, in addition to not being parties, were not

properly served with the subpoenas.

In addition, the Mudges’ motion does not include a

certification that counsel conferred in good faith with counsel

for Bank of America to resolve the issue. The documents the

Mudges submitted show, nevertheless, that counsel for Bank of

America attempted to explain the process for subpoenaing third-

party witnesses. Counsel for Bank of America also notified the

Mudges’ counsel that a corporate representative was available for

deposition. The Mudges’ counsel deposed Keith Nichols under Rule

30(b)(6) on February 25, 2015.

Apparently, even with the procedural guidance provided by

counsel for Bank of America, the Mudges’ counsel never properly

subpoenaed Lester or McElligott for depositions. As a result,

the depositions were not taken within the time allowed. The

Mudges have not shown that Bank of America failed to provide

depositions that would warrant sanctions under Rule 37(d). To

6 the extent the Mudges suggest that Bank of America hid Lester and

McElligott or made them unavailable, the Mudges provide no facts

to support that charge.

B. Initial Disclosures

“If a party fails to provide information or identify a

witness as required by Rule 26(a) or (e), the party is not

allowed to use that information or witness to supply evidence on

a motion, at a hearing, or at a trial, unless the failure was

substantially justified.” Fed. R. Civ. P. 37(c)(1). In addition

or alternatively, the court may order payment of expenses, may

inform the jury of the violation, and may impose other sanctions.

Id. The moving party must show a violation of Rule 26(a) or (e)

to invoke the sanctions provided by Rule 37(c)(1). JJI Int’l,

Inc. v. Bazar Group, Inc.,

, at *3 (D.R.I. Apr.

8, 2013); Bartlett v. Mutual Pharm Co., Inc.,

, at

*1 (D.N.H. Nov. 2, 2009).

The Mudges argue that the affidavits of Lester and

McElligott should be struck because Bank of America failed to

disclose Lester and McElligott as witnesses pursuant to Rule

26(a)(1). The issue of the August 21, 2014, discharge arose in

the Mudges’ motion for reconsideration filed on October 2, 2014.

Therefore, disclosure of Lester and McElligott would be not have

been possible under Rule 26(a)(1).

7 Although not argued by the Mudges, disclosure would be

required pursuant to Rule 26(e), if at all. Under Rule 26(e), a

party is required to supplement its disclosures “if the party

learns that in some material respect the disclosure or response

is incomplete or incorrect, and if the additional or corrective

information has not otherwise been made known to the other

parties during the discovery process . . . .”

Although Bank of America did not identify Lester or

McElligott as witnesses, they were disclosed in the motion for

summary judgment. Additional time was provided for the Mudges to

engage in discovery on the issue of the August 21 discharge,

including time to depose Lester and McElligott. Counsel for Bank

of America notified counsel for the Mudges that he did not have

addresses for Lester and McElligott. Therefore, no violation of

Rule 26 (a) or (e) occurred in the circumstances presented here.

C. Interrogatories

The Mudges seek sanctions against Bank of America for

failing to provide answers to interrogatories sent on December 1,

2014. Bank of America provided its answers on January 13, 2015,

objecting to the interrogatories on grounds that they were

seeking irrelevant documentation and information and that the

Mudges had exceeded the maximum number of interrogatories

allowed. The Mudges’ motion to strike was filed on March 3,

2015.

8 Discovery is allowed regarding “any nonprivileged matter

that is relevant to any party’s claim or defense.” Fed. R. Civ.

P. 26(b)(1). When “a party fails to answer an interrogatory

submitted under Rule 33,” that party “may move for an order

compelling an answer, designation, production, or inspection.”

Fed. R. Civ. P. 37(a)(3)(B) (iii). “The motion must include a

certification that the movant has in good faith conferred or

attempted to confer with the person or party failing to make

disclosure or discovery in an effort to obtain it without court

action.” Fed. R. Civ. P. 37(a)(1).

If a party fails to answer or object to properly served

interrogatories, the court may order sanctions. Fed. R. Civ. P.

37(d)(1)(A)(ii). A motion for sanctions under Rule

37(d)(1)(A)(ii), however, 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).

The Mudges did not move to compel answers to their

interrogatories. They do not dispute the grounds for Bank of

America’s objections to their interrogatories. The Mudges also

did not provide a certification that they made a good faith

effort to resolve the interrogatory issue before filing their

motion to strike. Because Bank of America did provide objections

to the interrogatories, Rule 37(d) does not apply. Therefore,

the Mudges’ motion to strike, to the extent it is based on a

9 theory that Bank of America failed to respond to their

interrogatories, is meritless.

The Mudges also state that Bank of America “committed other

critical and continuing misrepresentations.” They argue that

contrary to the court’s prior orders, discovery about the note is

relevant to the merits of the case because Bank of America has

misrepresented the location of the note and failed to provide the

note in response to prior discovery requests.

As the court has repeatedly explained, the Mudges have no

claims that involve the note. They have provided no reasoned

explanation as to how the location or existence of the note is

relevant to their remaining claims. The Mudges have been warned

not to pursue the issue of the note because it was not relevant

to the claims. The issue of the note provides no grounds for

sanctions against Bank of America.

D. Sanctions Against the Mudges and/or Their Counsel

Bank of America asks that it be awarded the costs incurred

in responding to the Mudges’ motion because the motion fails to

comply with the applicable rules, raises the issue of the note,

and is meritless. The Mudges did not respond to the request for

costs.

Bank of America is correct that the Mudges failed to follow

the applicable rules in pursuing the limited discovery that was

allowed. In addition, the court has repeatedly warned the Mudges

10 that the issue of the note is not relevant to their remaining

claims and that the issue of the note could not be raised for

purposes of the discovery allowed to address the August 21

discharge. Therefore, Bank of America may file a motion for an

award of costs incurred in responding to the Mudges’ motion to

strike, with legal and factual support for sanctions and

appropriate billing records and evidentiary support for the

hourly wages claimed.

Conclusion

For the foregoing reasons, the plaintiffs’ motion to strike

(document no. 95) is denied.

Bank of America may file a motion for an award of costs,

with required support as specified above, on or before April 1,

2015. The Mudges shall file their response on or before April

15, 2015.

SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge

March 24, 2015

cc: Edmond J. Ford, Esq. Peter G. McGrath, Esq. Richard K. McPartlin, Esq. William Philpot Jr., Esq.

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