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Heaney v. Bank of America, N.A.

United States District Court, D. Maryland

April 24, 2017

Alan D. Heaney, et al.
Bank of America, N.A.;


         Dear Counsel:

         Pursuant 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 DENIED.

         I. BACKGROUND

         Plaintiffs 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 2.

         As part 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].


         In 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 case progresses.


         A. Parties' Substantive Arguments

         According 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].

         In its 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.

         B. Legal Standard

         Federal 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. 26(b)(1).

         C. ...

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