United States District Court, D. Kansas
RANDALL A. SCHNEIDER and AMY L. SCHNEIDER Plaintiffs,
CITIMORTGAGE, INC., et. al., Defendants.
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge.
case comes before the court on the following motions:
Plaintiff Schneiders' motion for review (Dk. 392) the
Magistrate Judge's Order of October 31, 2016, (Dk. 390);
Plaintiff Schneiders' motion for review (Dk. 396) the
Magistrate Judge's Order of November 3, 2016, (Dk. 391);
and the Plaintiffs' motion to file exhibits under seal
(Dk. 421). Besides deciding these three motions, this order
will reiterate some of the Magistrate Judge's concerns
over the lack of cooperation in this case. The case began
when the Schneiders' 28-page complaint filed in the
District Court of Jefferson, County, Kansas, in May of 2013,
was removed by the defendants to this court on August 14,
2013. (Dk. 1). The defendants thereafter filed a motion to
dismiss which this court granted and denied in part. The
magistrate judge has described correctly the plaintiffs'
claims as involving “the defendants' alleged
misconduct in handling the Schneiders' residential
mortgage loan and their 2010 loan refinance” (Dk. 390,
p. 1) and as seeking relief for violations under the Kansas
Consumer Protection Act (“KCPA”) and for breach
of contract regarding interest and overcharges within the
five-year limitations period (Dk. 273, p. 2). “The
Schneiders allege that they were wrongfully assessed
overcharges and fees and were denied a loan refinance for
which they were qualified.” (Dk. 275, p. 1).
addressing the pending matters, the district court will make
several observations. The docket report does not paint a
favorable Rule 1 impression of this case. The Magistrate
Judge rightfully expressed his frustration (Dk. 390, p. 2)
with how all parties have “failed to assist the court
in the ‘just, speedy, and inexpensive' disposition
of this case.” The Magistrate Judge concluded his
observations with the hope that his “order will put
this litigation on a path to a conclusion.”
Id. The pending motions show that hope to be
delayed. Neither side should be pleased with the state of the
record, and nor should they expect to benefit from it. From
this point forward, the district court wants both sides to
realize that joint efforts by all parties will be expected to
improve and will be accounted for as this case moves forward
TO FILE UNDER SEAL (Dk. 421)
plaintiffs filed an earlier motion seeking leave to file
certain discovery produced in December of 2016 as exhibits
under seal. (Dk. 411). The district court summarily denied
this motion as insufficient on its face to meet the
requirements for sealing. (Dk. 415). The plaintiff now files
a four-page motion and a nine-page memorandum in support.
(Dks. 421 and 422). Citing the terms of their agreed
protective order (Dk. 54), the plaintiffs describe themselves
as “in a pickle” and requesting leave to file
under seal. The plaintiffs' present motion complies with
their protective order (Dk. 54, ¶ 6), and the plaintiffs
alternatively argue the documents should be filed without
sealing them. Absent the defendants coming forward with
arguments in support of sealing, the court agrees with the
plaintiffs and denies the plaintiffs' motion to file
under seal. The plaintiffs may file these documents absent an
intervening motion to seal by the defendants.
GOVERNING REVIEW OF MAGISTRATE JUDGE ORDER
of the Federal Rules of Civil Procedure allows a party to
provide specific, written objections to a magistrate
judge's order. A magistrate judge's order addressing
non-dispositive pretrial matters is not reviewed de novo, but
it is reviewed under the more deferential standard in which
the moving party must show the order is “clearly
erroneous or contrary to the law.” First Union
Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir.
2000) (quoting Ocelot Oil Corp. v. Sparrow
Industries, 847 F.2d 1458, 1461-62 (10th Cir. 1988));
see Fed.R.Civ.P. 72(a). For factual findings, the court
applies the clearly erroneous standard which “requires
that the reviewing court affirm unless it on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” See Ocelot Oil,
847 F.2d at 1464 (citation omitted). For legal
determinations, “the Court conducts an independent
review and determines whether the magistrate judge ruling is
contrary to law.” In re Motor Fuel Temperature
Sales Practices Litigation, 707 F.Supp.2d 1145, 1148 (D.
Kan. 2010) (citations omitted), interlocutory appeal
dismissed, 641 F.3d 470 (10th Cir. 2011), cert.
denied, 132 S.Ct. 1004 (2012). “Under this
standard, the Court conducts a plenary review and may set
aside the magistrate judge decision if it applied an
incorrect legal standard or failed to consider an element of
the applicable standard.” Id.
MOTION TO REVIEW (Dk. 392)
plaintiffs filed a seven-page motion to review (Dk. 392),
then filed two-weeks' later a 20-page memorandum in
support (Dk. 402), and finally filed two months' later a
21-page reply memorandum (Dk. 416). This typifies the
excessive and extended filings and briefing in this case. Of
note is that the movants fail to cite the standards governing
their motion and to argue a consistent and proper application
of them. Instead, the plaintiffs' motion and memoranda
offers up headings and argues points lacking coherency,
organization, citations, references, and especially clarity.
To make plain this point, court will address every separate
heading found in this particular motion.
leave of the court, the plaintiffs were given additional time
to file a reply brief. The court's leave, however, did
not authorize the plaintiffs to argue matters for the first
time in their reply brief. “The general rule in this
circuit is that a party waives issues and arguments raised
for the first time in a reply brief.” See Reedy v.
Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011). The
plaintiffs' reply is the first time they argue that new
discovery produced in December of 2016 convinces them that
the defendants have failed to produce or identify other
requested discovery. This new discovery is the subject of the
plaintiffs' motion to file exhibits under seal. (Dk.
421). After reviewing these exhibits and the plaintiffs'
accompanying arguments, the court will not suspend the rule
of waiver against arguments first raised in reply. From this
recent discovery, the plaintiffs want to argue inferences
that the defendants have not provided complete and accurate
discovery responses to date. What the plaintiffs argue as
inferences, however, does not appear to put the court in any
better “position to determine the accuracy or
completeness of the information produced.” (Magistrate
Judge's Order, Dk. 390). Nonetheless, should the
plaintiffs want to make this argument, it first must be made
to the Magistrate Judge who is most familiar with the
discovery and rulings to date. The district court is not in a
position now to second-guess the Magistrate Judge's
original conclusion on whether this new discovery now puts
the court in a position to determine this issue. Thus, this
court will not consider the plaintiffs' arguments based
on discovery produced in December of 2016.
Failure to Appear at the Noticed Deposition” (Dk.
this heading, the plaintiffs argue the “Magistrate
[Judge] clearly erred when finding that Plaintiffs were not
entitled to relief because the Defendants had neither
complied and come to depositions prepared for the topics not
in dispute which would not have been contrary to the
Court's finding of their instruction to the Defendants,
nor had they met the automatic stay.” (Dk. 402, p. 2).
The plaintiffs' use of “clear error” presumes
a factual finding, but their motion fails to isolate this
finding. The plaintiffs mention pages 14 and 15 of the
Magistrate Judge's order which addressed Citigroup's
motion for protective order and the plaintiffs' objection
that Citigroup's motion was untimely. In rejecting the
plaintiffs' timeliness objection, the Magistrate Judge
first recognized “that this aspect of plaintiffs'
response is moot because the court directed the parties to
conduct the depositions on the topics where agreement could
be reached.” (Dk. 390). In short, the Magistrate Judge
first rejected the plaintiffs' timeliness argument as
moot, because he had directed the depositions to occur on the
agreed topics. The Magistrate Judge also denied the
timeliness argument because a motion for protective order
under Fed.R.Civ.P. 26(c) is not subject to the filing
requirements of D. Kan. Rule 26.2(b)(2). The plaintiffs do
not show the Magistrate Judge's reading and application
of this rule to be wrong. In short, the court has no basis
for finding any error in the Magistrate Judge's rulings
at pages 14 and 15 of his order.
& Repeat Strategy to Avoid Depositions” (Dk.
402, p. 3)
three of their memorandum, the plaintiffs employ this section
title to then label and attack as tactical and dilatory the
defendants' efforts to narrow down the scope of the Rule
30(b)(6) deposition. (Dk. 402, p. 3). This typifies the
repeated finger pointing of blame and of delay replete in
this case. There is nothing under this title that serves as a
viable factual or legal argument or objection for review.
for Response Opposing Citigroup Protective Order”
(Dk. 402, p.3)
this heading, the plaintiffs ramble through different
filings, highlight isolated arguments, and criticize general
rulings without an organizing theme and without any clear
direction on what they regard as error and why it would be
error. The court presumes the following rulings to be in
issue and the following arguments to be made.
Magistrate Judge rejected the plaintiffs' contention that
Citigroup's discovery answers were not believable because
the “trailing document” is proof that their loan
was securitized. The Magistrate Judge first noted that this
“is a document in which CitiMortgage was the
custodian.” (Dk. 390, p. 4). He then found that the
plaintiffs have “no claim in this case based upon the
securitization of plaintiffs' 2007 loan” and that
there was no “improper conduct by Citigroup or the
other defendants concerning this document.” (Dk. 390,
p. 4). Nothing presented in the plaintiffs' objections
points to any error in this ruling, and the court finds none.
plaintiffs also complain that the Magistrate Judge kept them
from deposing on the new topic of securitization as a way of
showing Citigroup's connection to their loan transaction.
Before the Magistrate Judge, the plaintiffs, however,
“acknowledged that these topics are not for a new cause
of action, but are designed to “ferret out” a
discovery violation by Citigroup.” (Dk. 390, p. 16).
Thus, the Magistrate Judge was not persuaded that “this
was a proper use of discovery given the allegations
here” and concluded that the topics were not within
“the scope of this litigation.” Id. The
plaintiffs' changing reasons ...