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Calon v. Bank of America Corp.

United States District Court, W.D. Missouri, Western Division

September 18, 2017

JOHN CALON, Plaintiff,
BANK OF AMERICA, ET AL., Defendants.


          Fernando J. Gaitan, Jr. United States District Judge.

         Currently pending before the Court is Plaintiff's Motion for Extension of Time to Complete Discovery (Doc. # 98); Plaintiff's Motion to Compel (Doc. # 99); Bank of America N.A. (“BANA's”) Motion for Summary Judgment (Doc. # 101) and plaintiff's Motions for Protective Order (Docs. # 105, 107).

         I. Background

         On December 9, 2014, plaintiff filed his initial complaint asserting five causes of action against Bank of America Corporation (“BAC”), Bank of America Corporation, N.A. (“BANA”) and Brian Moynihan (Bank of America's CEO). On June 29, 2015, the Court granted in part and denied in part BANA's Motion to Dismiss[1]. The Court directed plaintiff to file a First Amended Complaint on or before July 15, 2015. When plaintiff did not file his Amended Complaint on or before July 15, 2015, the Court issued an Order to Show Cause Order on July 22, 2015, directing plaintiff to show cause as to why the matter should not be dismissed due to failure to comply with the Court's earlier order. In the First Amended Complaint, plaintiff was directed to list in separate counts the claims he was asserting against the various defendants. On July 24, 2015, plaintiff filed a forty-two page, three-hundred thirty-five paragraph First Amended Complaint in which he asserts twenty counts against BANA. On May 17, 2016, the Court dismissed five of plaintiff's claims. BANA filed a Motion for Summary Judgment on November 21, 2016 (Doc. # 101). Plaintiff's response was due on or before December 15, 2016. Plaintiff failed to file any response to the summary judgment motion.

         II. Plaintiff's Motion for Extension of Time to Complete Discovery

Plaintiff has moved for a Motion for Extension of Time to Complete Discovery (Doc. # 98). In his Motion plaintiff requests an additional ninety days to complete discovery. Plaintiff states that he recently learned that the defendants had illegally accessed sealed court records, medical records and private financial information and that the defendant sent employees to plaintiff's property to harass and intimidate him after he paid off his loan. Plaintiff states that he is seeking information so that he may file criminal charges against these individuals. Plaintiff then states that defendant continues to withhold data, witnesses, audio and other items that plaintiff is entitled to. BANA opposes the motion, stating that plaintiff's motion is untimely and filed after the close of discovery. BANA also states that it has fully responded to plaintiff's written discovery. BANA also notes that the Court previously extended the discovery in this case from November 19, 2015 until October 24, 2016. During these eleven months, plaintiff failed to conduct any additional discovery. Finally, BANA states that despite seeking an additional ninety days to complete discovery, plaintiff fails to state or describe what additional information he needs. The Court agrees and finds that plaintiff's request for additional time to complete discovery is both untimely and without any basis. As noted above, the Court previously granted plaintiff an extension of time to complete discovery, but plaintiff did not utilize this time to conduct any discovery. Accordingly, because plaintiff's motion was untimely and because he failed to show good cause for extending the deadline, the Court hereby DENIES Plaintiff's Motion for an Extension of Time to Complete Discovery (Doc. # 98).

         III. Plaintiff's Motion to Compel

         Plaintiff in his Motion to Compel requests that the Court order defendant to turn over a readable copy of his deposition. Plaintiff complains that the copy that he was provided contained type which was too small for him to read. In opposition, defendant states that the Motion should be denied because plaintiff failed to comply with Local Rule 37.1 and also because the motion is moot. BANA states that the court reporter sent plaintiff a copy of the transcript and defendant also mailed plaintiff a CD which contained both a paper transcript as well as the video of the deposition. Plaintiff filed no reply suggestions refuting defendant's statements or indicating that he had not received the CD. Accordingly, because it would appear that plaintiff has received the relief he requested, the Court hereby DENIES AS MOOT plaintiff's Motion to Compel (Doc. # 99).

         IV. Plaintiff's Motions for Protective Order

         In his Motion for a Protective Order plaintiff states that he recently learned that BANA and their attorneys illegally accessed or had in their possession medical records, sealed court records and private financial information. Plaintiff also states that BANA sent Bank of America employees to his property to harass and intimidate him after he filed this action. Plaintiff also claims that BANA failed to give him enough notice of his deposition and has now refused to provide him with a copy of his deposition. Plaintiff is seeking an Order that BANA be ordered not to disclose or otherwise discuss the deposition and that the deposition be stricken from the record due to the privileged nature of the material and the manner in which it was obtained.

         BANA states that the motion should be denied because plaintiff failed to comply with Fed.R.Civ.P. 26(c) or Local Rule 37.1(a). Additionally, BANA argues that the motion is untimely as it was filed over three months after his deposition was taken. BANA states that Fed.R.Civ.P. 32(a)(5) states that a deposition may not be precluded unless the party seeking preclusion promptly moves for a protective order. Thus, BANA argues that this motion does not apply because plaintiff waited until after his deposition was taken to challenge it. Similarly, BANA states that plaintiff consented to the time, date and location of his deposition. BANA states that plaintiff was contacted on October 18, 2016 to determine his availability. Plaintiff indicated that he was available on October 24, 2016 and the parties agreed during the phone call that plaintiff's deposition would be taken at the Courthouse on that date. BANA states that plaintiff should not be allowed to argue that the notice was insufficient, when he agreed to the date, place and time for the deposition.

         In his second motion for a protective Order, plaintiff requests that the Court order BANA's counsel to tell their client not to contact plaintiff. BANA states that the Motion should be denied because plaintiff failed to comply with Fed.R.Civ.P. 26(c) or Local Rule 37.1(a) and also because plaintiff has only made vague, general conclusory allegations and has failed to provide any evidence that he has received coercive mailings from defendant.

         The Court agrees and finds that there is no basis for granting plaintiff's Motions for Protective Orders. The Court finds that plaintiff failed to comply with the Local Rules regarding discovery disputes, the motions are untimely and are unsupported and make only vague general assertions of perceived improprieties. Accordingly, the Court hereby DENIES plaintiff's Motions for Protective Orders (Docs. 105, 107).

         V. Defendant's Motion for Summary Judgment

         A. Standard

         A moving party is entitled to summary judgment on a claim only if there is a showing that ''there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'' Fed.R.Civ.P. 56(c). A[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party meets this requirement, the burden shifts to the non-moving party to ''set forth specific facts showing that there is a genuine issue for trial.'' Anderson, 477 U.S. 242, 248 (1986). In Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the Court emphasized that the party opposing summary judgment ''must do more than simply show that there is some metaphysical doubt as to the material facts'' in order to establish a genuine issue of fact sufficient to warrant trial. In reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. Matsushia, 475 U.S. 574, 588; Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984), cert. denied, 470 U.S. 1057 (1985). Western District of Missouri Local Rule 56.1 states in part:

         (b) Opposing Suggestions.

1. A party opposing a motion for summary judgment must begin its opposing suggestions by admitting or controverting each separately numbered paragraph in the movant's statement of facts. If the opposing party controverts a given fact, it must properly support its denial in accordance with Fed.R.Civ.P. 56(c). Unless specifically controverted by the opposing party, all facts set forth in the statement of the movant are deemed admitted for the purpose of summary judgment.

         Plaintiff failed to file any response to defendant's Motion for Summary Judgment. Plaintiff does however refer to the Summary Judgment motion in his Reply Suggestions in Support of his Motion for a Protective Order (Doc. # 110, p. 6). In his reply suggestions, plaintiff states that the Court should deny the summary judgment motion “out of hand” and that defendant is continuing to refuse to cooperate with plaintiff's discovery and has refused to identify witnesses and records. Plaintiff also argues that defendant has failed to provide him with a copy of the video and audio from his deposition. However, other than these general arguments, plaintiff has failed to respond to either the specific factual statements in the motion for summary judgment or defendant's arguments about why their motion for summary judgment should be granted.

         Fed.R.Civ.P. 56(d) does allow for the Court to defer ruling on summary judgment motions when facts are unavailable to the nonmovant. However, the Eighth Circuit has explained that, “[t]o obtain a Rule 56[d] continuance, the party opposing summary judgment must file an affidavit ‘affirmatively demonstrating . . .how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact.'” Ray v. American Airlines, Inc., 609 F.3d 917, 923 (8th Cir.2010)(quoting Humphreys v. Roche Biomedical Lab, Inc., 990 F.2d 1078, 1081 (8th Cir. 1993)). See also Ballard v. Heineman, 548 F.3d 1132, 1136-37 (8th Cir. 2008)(“Unless a party files an affidavit under Federal Rule of Civil Procedure 56[d] showing what facts further discovery may uncover, ‘a district court generally does not abuse its discretion in granting summary judgment on the basis of the record before it.'”)(quoting Nolan v. Thompson, 521 F.3d 983, 986 (8th Cir. 2008)).

         In the instant case, plaintiff has not provided an affidavit detailing what facts additional discovery may uncover. Rather, plaintiff has made only vague, general assertions that BANA has failed to provide him with the names of witnesses or documents or that he needs additional time to complete discovery. The Court finds that plaintiff has had more than ample time to conduct discovery. After the Court granted in part and denied in part, defendant's Motion to Dismiss, the Court entered an Amended Scheduling Order, giving the parties an extension of over four months to complete discovery. As previously discussed above, the Court finds that plaintiff has offered no explanation as to why discovery should be extended in this case. In his Motion to Extend Discovery, plaintiff states that he recently learned that the defendants had illegally accessed or had in their possession sealed court records, his medical records and his credit reports and bills. In his motion, plaintiff states that he is “seeking the Court's permission to investigate the above matters further as it will effect [sic] damage amounts Plaintiff may be entitled to and provide further support of Plaintiff's allegations of intimidation and mistreatment by Defendant and the continuance of such mistreatment by Defendant.” (Doc. # 98, p. 4). Plaintiff also states that he is seeking the Court's permission to “submit a subpoena to Fannie Mae to obtain the records of his payments on the note and any related documentation concerning the transfer of Plaintiff's note to Defendant.”

         As noted above, the Court finds that plaintiff has failed to allege with the required specificity what discovery he needs to support his claims and to refute defendant's factual assertions. Nor has plaintiff explained why he could not have requested this discovery earlier or why he waited until after the close of discovery to seek the extension. In Newkirk v. GKN Armstrong Wheels, Inc., 168 F.Supp.3d 1174 (N.D.Iowa 2016), the Court stated:

[Plaintiff] as the party seeking a Rule 56(d) continuance, must do more than simply assert that he may discover additional facts, and must do more even that speculate about what those facts might be. . . .The reason underlying such requirements is that ‘it is well settled that ‘Rule 56(f) does not condone a fishing expedition' where a plaintiff merely hopes to uncover some possible evidence of [unlawful conduct]. Duffy v. Wolle, 123 F.3d 1026, 1041 (8th Cir. 1997). This is so, because “ ‘Rule 56[d] is not a shield that can be raised to block a motion for summary judgment without even the slightest showing by the opposing party that his opposition is meritorious.'” Id (quoting United States v. Light, 766 F.2d 394, 397 (8th Cir. 1985)).

Id. at 1194, n.12. The Court finds that plaintiff has failed to establish with the required degree of specificity what additional facts he could potentially uncover and how these additional facts would refute the factual allegations in BANA's summary judgment motion. Accordingly, the Court will proceed to rule on BANA's summary judgment motion and because plaintiff failed to controvert the facts in the motion, the Court will deem all of the facts asserted in the statement of facts as admitted. In Rogers v. Brouk, No. 4:16-cv-1088SNLJ, 2017 WL 3333929 (E.D.Mo. Aug. 4, 2017), the Court stated:

[p]laintiff's pro se status does not excuse him from responding to defendant's motion with specific factual support for his claims to avoid summary judgment, Beck v. Skon, 253 F.3d 330, 333 (8th Cir.2001), or from complying with local rules, see Schooley v. Kennedy, 712 F.2d 372, 373 (8th Cir.1983). However, “[t]he Eighth Circuit has determined that when a plaintiff fails to respond adequately to a motion for summary judgment, a district court should not treat such a non-response as sufficient to dispose of the motion.” Lowry v. Powerscreen USB, Inc., 72 F.Supp.2d 1061, 1064 (E.D.Mo. 1999)(citing Canada v. Union Electric Co., 135 F.3d 1211, 12113 (8th Cir. 1997)). “Courts should proceed to examine those portions of the record properly before them and decide for themselves whether the motion is well taken.” Id.

Id. at *2. Thus, the Court will proceed to analyze BANA's Summary Judgment Motion. The following facts are taken from BANA's Statement of Uncontroverted Facts.

         B. Statement of Facts

         In 2000, plaintiff took out a loan from Countrywide Home Loans, Inc. On November 29, 2000, plaintiff executed a promissory note for $20, 001 in favor of Countrywide Home Loans, Inc. The same day, plaintiff also executed a deed of trust granting a security interest in the piece of real property described as 2500 NE 57thTerrace, Gladstone, Missouri 64119. Plaintiff believed that a Countrywide eEasy Rate Reduction Plan was incorporated into his contract via the Note and the Deed of Trust. However, plaintiff admitted during his deposition that the eEasy Rate Flier was not signed by anyone. Plaintiff admitted that neither the Note nor the Deed of Trust referred to the Countywide eEasy Rate Reduction Plan.

         On July 24, 2012, a class action lawsuit, Hall v. Bank of America, N.A. et al., Case No. 1:12-cv-22700 was filed in the United States District Court for the Southern District of Florida. On July 2, 2013, a corrected Second Amended Class Action Complaint was filed in the lawsuit. BANA was a named defendant in the lawsuit. A nationwide class settlement agreement was entered into between BANA and the plaintiffs in the class action suit. On June 18, 2014, the Southern District of Florida court provisionally approved the Settlement Agreement and certified a settlement class under Fed.R.Civ.P. 23(b)(3) and on December 17, 2014, the Court entered final approval of the Settlement Agreement. On July 6, 2015, the United States Court of Appeals for the Eleventh Circuit dismissed the last remaining appeal of the Final Judgment.

         The Settlement Class certified and approved was defined as:

a. All borrowers who had mortgage loans, home equity loans, or home equity lines of credit by Bank of America, N.A. or BAC Home Loans Servicing, LP, (formerly known as Countrywide Home Loans Servicing, L.P.) who were charged a premium for lender-placed hazard insurance coverage issued by Balboa Insurance Company, Meritplan Insurance Company, Newport Insurance Company, QBE Insurance Corporation, QBE Specialty Insurance Company, Praetorian Insurance Company, or one of their affiliates within the Class Period. ...

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