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Rogers v. Bank of America, N.A.

United States District Court, D. Kansas

September 19, 2014

SHELLI F. ROGERS, Plaintiff,
v.
BANK OF AMERICA, N.A., Defendant.

MEMORANDUM AND ORDER

TERESA J. JAMES, Magistrate Judge.

In this removed Kansas Consumer Protection Act[1] case, Plaintiff alleges that Defendant advised her to default on her mortgage before Defendant could consider a loan modification. When she applied for a loan modification after defaulting, Plaintiff alleges that Defendant engaged in an intentional and deceptive scheme to delay review of Plaintiff's modification application and repeatedly misrepresented to Plaintiff that it had not received required documentation for the loan modification.

This matter is presently before the Court on Plaintiff's Motion to Compel Defendant's Required Initial Disclosures (EF No. 20) and Plaintiff's Motion to Compel Defendant's Supplemental Disclosures (ECF No. 34). Plaintiff requests that the Court compel Defendant to supplement its initial disclosures, claiming that the information provided by Defendant does not satisfy the requirements of Fed.R.Civ.P. 26(a)(l)(A)(i) mandating that Defendant identify specific individuals it may use to support its claims or defenses. As set forth below, the Court grants Plaintiff's Motion to Compel Defendant's Supplemental Disclosures and finds her previously filed Motion to Compel Defendant's Required Initial Disclosures to be moot.

I. Relevant Facts

Plaintiff filed her original Petition in the District Court of Sedgwick County, Kansas on August 2, 2013. Defendant thereafter removed the case to this Court on September 9, 2013.

The parties exchanged their Rule 26(a)(1) initial disclosures on December 13, 2013. In its Initial Disclosures, Defendant identified its "Custodian of Records and corporate representative(s)" as individuals likely to have discoverable information that it may use to support its claims and defenses.[2] It also listed Plaintiff and "all individuals designated by Plaintiff in her initial disclosures under Fed.R.Civ.P. 26."[3] In her initial disclosures, Plaintiff identified herself, Defendant's attorney of record in the foreclosure action, and fourteen of "Defendant's known employees who interacted with Plaintiff."[4] Plaintiff identified seven of the employees by both first and last name, while she identified the other seven employees by first name only.

The Court held a scheduling conference on December 20, 2013, at which it set a July 31, 2014 deadline for the completion of all discovery, as well as a deadline for the supplementation of disclosures of 40 days before the discovery deadline.[5] At the scheduling conference, Plaintiff claimed that Defendant's Initial Disclosures did not comply with Rule 26(a)(1)(A). The Magistrate Judge assigned to the case at that time agreed with Plaintiff and indicated that Defendant's disclosures appeared deficient. A couple of hours after the scheduling conference, Plaintiff's counsel emailed defense counsel, inquiring about possible incomplete documents provided with Defendant's initial disclosures. Defense counsel responded that she would check with her client.

On February 4, 2014, Plaintiff's counsel followed up on her December 20 email:

I'm simply following up on my December 20th email as we've never heard back from you. By chance have you received any more information to send our way? Additionally, in the process of reviewing the initial disclosures provided thus far we discovered there is other information still missing. If necessary, we'll be sending a more formal letter with our detailed request in the future. Please feel free to call me to discuss.[6]

On February 28, 2014, Plaintiff's counsel sent a letter to Defendant's counsel as a reminder that Defendant had failed to provide the information required by Rule 26(a)(1) and that Plaintiff was unable to make an informed settlement offer without the information.

On March 18, 2014, Plaintiff's counsel sent another letter to Defendant's counsel regarding Defendant's Initial Disclosures. In the letter, Plaintiff's counsel stated:

Pursuant to Fed.R.Civ.P. 26(a)(1) and the Court's Order, Defendant's initial disclosures were due in December 2013. To date, Defendant has failed to adequately provide the information required. To our knowledge, the specific information Defendant needs to provide is explained below. The initial disclosures are now long past due and are holding up our ability to move this case forward.
This letter serves as our formal attempt to confer regarding the deficiencies in Defendant's initial disclosures. We have attempted to confer with you by email to no avail. We intend on arranging a telephone conference with the Court and filing a Motion to Compel if we do not receive complete and proper responses by March 25, 2014. Please advise your client that we will seek attorney fees if we have to proceed in this manner.[7]

On April 8, 2014, Plaintiff's counsel left Defendant's counsel a voicemail, followed by an email stating she hoped to get the Initial Disclosures issue resolved in the next 24 hours.[8]

Plaintiff's counsel contacted Defendant's counsel by telephone on April 9, 2014, regarding Plaintiff's request for complete initial disclosures. Plaintiff's counsel indicated that she would wait until April 14, 2014 for a complete response from Defendant, and if she did not receive one, she would request the Court's involvement.

On April 17 and 23, 2014, Plaintiff's counsel emailed Defendant's counsel following up on Plaintiff's request for initial disclosures and inquiring about ...


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