United States District Court, D. Maryland
Alan D. Heaney, et al.
Bank of America, N.A.;
LETTER TO COUNSEL
to Judge Hollander's order referring the case to me for
discovery, [ECF No. 27], I have reviewed Plaintiffs'
Motion to Compel Discovery (“Motion”), [ECF No.
26-1], Defendant's Opposition, [ECF No. 26-2], and
Plaintiffs' Reply, [ECF No. 26-3]. No hearing is deemed
necessary. See Loc. R. 105.6 (D. Md. 2016). For the
reasons set forth below, Plaintiffs' Motion will be
Alan D. Heaney and Lurlene R. Heaney
(“Plaintiffs”) brought suit against Defendant
Bank of America, N.A. (“BANA”) alleging breach of
a Confidential Settlement Agreement (“Agreement”)
between the parties, along with six other negligence and
fraud-based claims. See [ECF No. 2]. The Agreement
resolved claims stemming from BANA's conduct as the
servicer for Plaintiffs' mortgage debt. Id. at
of the current litigation, Plaintiffs served discovery
requests on BANA on December 30, 2016. See
Def.'s Opp., [ECF No. 26-2, 1]. BANA served its answers
to interrogatories and responses to requests for production
on February 10, 2017. Id. The instant Motion
followed on March 22, 2017. See [ECF No. 26-1]. The
parties attempted to resolve this discovery dispute via
telephone conference on April 11, 2017, to no avail.
See [ECF No. 26].
WITH MARYLAND LOCAL RULES
filing the Motion, Plaintiffs failed to comply with Local
Rule 104.8, which requires that motions to compel be served
within 30 days of the time that the moving party receives
unsatisfactory responses to discovery requests. See
Loc. R. 104.8 (D. Md. 2016). Plaintiffs concede that the
Motion was not timely filed, but argue that technical
tardiness is not fatal. Pls.' Reply, [ECF No. 26-3, 1]. I
agree. Both Doe v. Nat'l Hemophilia Foundation,
194 F.R.D. 516 (D. Md. 2000) and Webb v. Green Tree
Servicing LLC, 2012 WL 3139551 (D. Md. July 27, 2012),
cited by Defendants in support of dismissal due to tardiness,
involved delay greater than 80 days and, in the case of
Webb, delay beyond the discovery deadline.
Doe, 194 F.R.D. at 618; Webb, 2012 WL
3139551 at *1. In contrast, Plaintiffs filed their Motion 40
days after receiving BANA's answers and well before the
discovery deadline in the revised Scheduling Order, [ECF No.
20]. See Tucker v. Ohtsu Tire & Rubber Co., 191
F.R.D. 495 (D. Md. 2000) (granting in part plaintiffs'
motion to compel filed little over 40 days after responses
were served). Moreover, BANA does not allege, nor does the
Court find, any prejudice BANA would suffer if
Plaintiffs' Motion is considered. Id. at 497.
Under these circumstances, tardiness alone does not warrant
outright dismissal of Plaintiffs' Motion. However,
Plaintiffs are reminded to adhere to the Local Rules as the
PLAINTIFFS' MOTION TO COMPEL
Parties' Substantive Arguments
to Plaintiffs, as part of the Agreement, BANA agreed to
transfer Plaintiffs' property in a way that did not
require foreclosure proceedings. Pls.' Compl., [ECF No.
2, 3]. Interrogatory No. 23 asks BANA to, “[d]escribe
the manner in which [it] received revenue or profits from
servicing Plaintiffs' mortgage loan, and describe what
effect, if any, collecting a late fee or penalty concerning
Plaintiffs' mortgage loan would have had on [BANA's]
said revenue or profits.” Pls.' Mot., [ECF No.
26-1, 2]. In contrast, Interrogatory Nos. 24 and 25 are not
specific to Plaintiffs' loan, and ask BANA to,
“[d]escribe how [it] generated revenue from servicing
mortgage loans as a mortgage loan servicer during the time of
the occurrence, ” and to explain whether and why
“collecting late fees or penalties in connection with
[BANA's] servicing of mortgage loans had no effect
whatsoever on [BANA's] revenue or profits[.]”
Id. at 2-3. Plaintiffs argue that evidence of
“a financial incentive to pursue foreclosure…
would support [Plaintiffs'] allegation that [BANA] never
intended to keep its promise to not pursue
foreclosure[.]” Id. at 1. Plaintiffs claim
that “proving that [BANA] had no intent to keep its
promises at the time it made them … legally allows the
jury to consider whether the promises constituted false
statements for purposes of [Plaintiffs'] fraud-based
claims[.]” Pls.' Reply, [ECF No. 26-3, 2].
Opposition, BANA maintains that Interrogatory Nos. 23-25 seek
irrelevant information. Def.'s Opp., [ECF No. 26-2, 2].
First, BANA argues that Plaintiffs never explicitly
identified the motivation for BANA's alleged breach, but
“instead merely plead that BANA's intent ‘may
be inferred form (sic) the fact that Defendant never
took steps to comply with its obligation … [and] never
even considered whether it actually could perform its
obligations.'” Id. at 5. Second, BANA
avers that Plaintiffs' inquiry into “[p]otential
revenues and/or profits from a hypothetical
foreclosure” calls for impermissible speculation and is
not relevant to the execution, enforcement, or purported
violation of the Agreement. Id. at 6.
Rule of Civil Procedure 26(b)(1) permits discovery of
“any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case.” In determining proportionality, the Court
must consider “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.” Fed.R.Civ.P.