United States District Court, D. Kansas
RANDALL A. SCHNEIDER and AMY L. SCHNEIDER Plaintiffs,
CITIMORTGAGE, INC., et. al., Defendants.
MEMORANDUM AND ORDER
CROW, UNITED STATES DISTRICT SENIOR JUDGE
case comes before the court on the plaintiffs'
“Objections and Motion for Review” (ECF# 463) of
the Magistrate Judge's Orders (ECF# 455 and #456), both
of which were filed April 14, 2017. As this matter has been
fully briefed by the parties, the court will rule
expeditiously. The plaintiffs have filed a motion of seven
pages, a memorandum in support of 32 pages, and a reply
memorandum of 15 pages. Considering the Magistrate
Judge's orders total six pages and the defendants'
opposition is 12 pages, the plaintiff's filings total
three times more pages. The district court in its prior order
commented on the plaintiffs' “excessive and
extended filings and briefing in this case.” (ECF# 433,
p. 4). Because the plaintiffs' practice has gone
unabated, the district court gives this final warning and
notice that it reserves the right to strike summarily all
future filings of excessive and/or unwarranted length.
order (“ECF# 455”), the Magistrate Judge
summarized the ongoing conflict that has marked the taking of
Rule 30(b)(6) depositions for Citigroup and other defendants.
This summary included:
The court directed the parties to complete the Rule 30(b)(6)
depositions by December 31, 2016. Plaintiffs filed a motion
for review on November 14, 2016. The parties then consented
to an extension of time to extend the Rule 30(b)(6)
depositions. On December 19, 2016, the court granted the
extension and allowed the parties until forty-five (45) days
following a ruling by the district court on the
aforementioned motion for review and other matters to
complete the Rule 30(b)(6) depositions.
On February 17, 2017, Judge Crow denied plaintiffs'
motion for review. Following Judge Crow's order,
plaintiff's counsel sought to schedule Citigroup's
Rule 30(b)(6) deposition. Various discussions were then had
between counsel. On March 3, 2017, counsel for defendants
provided dates and a location for the Rule 30(b)(6)
depositions for CitiMortgate, Inc. and Citibank, N.A.
Plaintiff's counsel was not happy with the proposed
dates, but failed to suggest alternative dates. On March 7,
2017, counsel for defendants suggested a stipulation to
plaintiff's counsel that would eliminate the need for
Citigroup Rule 30(b)(6) deposition. Plaintiffs immediately
rejected the proposed stipulation. Plaintiffs filed its
motion for contempt the next day.
ECF#455, p. 2. This order further describes that the
defendants were granted leave to file a supplement in which
they disclose having since provided a location and other
dates for the Citigroup Rule 30(b)(6) deposition.
ruling on the plaintiffs' objection that Rule 30(b)(6)
was violated by the defendants' conduct, the Magistrate
Judge succinctly ruled:
The court is concerned that counsel have once again failed to
reach agreement on a matter without the intervention of the
court. Counsel for both sides are responsible for what
occurred here. Counsel for defendants could have acted in a
more efficient manner in responding to plaintiffs'
counsel's requests. However, there was no need for filing
of the instant motion. The parties should have come to terms
on the issues concerning the Rule 30(b)(6) deposition. The
actions of defendants' counsel, while somewhat dilatory,
certainly do not warrant sanctions. Plaintiffs' motion is
denied. With an undying sense of optimism and hope, the court
again requests that counsel work in cooperation to complete
discovery in this case.
ECF#455, p. 3. This ruling correctly assessed the
parties' respective positions and rightly expressed
disappointment with both counsel for not cooperating but
rather inviting conflict through the defendants'
questionable delay and the plaintiffs' contentious
motion. The Magistrate Judge again urged counsel to cooperate
in completing discovery. The order displays a judicious
exercise of discretion over one episode in a continuing spate
of discovery disputes that have been time consuming, wasteful
of judicial resources, and contrary to the spirit of
plaintiffs' motion contentiously describes ten objections
to this order. Each objection will not be addressed
separately, as they repetitively advance the same basic
point, that is, the Magistrate Judge erred in not doing more
against the defendants' for their dilatory actions in
designating depositions after February 17, 2017. The
plaintiffs' memoranda refer to defendants' discovery
conduct before February 17, 2017, and level objections
against it too. The court, however, will consider this other
discovery conduct for purposes of background information
plaintiffs primarily take issue with the Magistrate
Judge's finding that “[t]he actions of
defendants' counsel, while somewhat dilatory, certainly
do not warrant sanctions.” ECF# 455, p. 3. They
complain that the ruling fails to discuss the applicable
rules and the governing standards. They argue that the
defendants' delays are discovery violations on their face
requiring sanctions and that the denial of sanctions will
encourage the dilatory behavior by the defendants.
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). The plaintiffs' motion fails its burden of showing
that the Magistrate Judge's order is clearly erroneous or
contrary to the law. The plaintiffs' arguments do not
establish how the defendants' delayed responses
necessarily violated the plain requirements or deadlines
imposed by rule or order. The Magistrate Judge acted well
within his reasonable discretion in handling the
plaintiffs' motion in this manner. As has been observed,
the defendants could have acted more promptly and completely
in their responses on the deposition designations, and they
could have acted more timely in offering the proposed
stipulation. Still, the court agrees with the Magistrate
Judge that this conduct by the defendants is not in itself a
discovery violation warranting sanctions. In short, the
plaintiffs have failed to prove any error in the Magistrate
Judge's findings and conclusions.