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Burns v. Bank of America

June 4, 2007

KEVIN E. BURNS, BARBARA R. BURNS, AND RENEE A. DEFINA, PLAINTIFFS,
v.
BANK OF AMERICA, ITS AFFILIATES, SUBSIDIARIES, AND AGENTS, INCLUDING BUT NOT LIMITED TO BA MORTGAGE, DEFENDANTS.



The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge

MEMORANDUM AND ORDER

The pro se plaintiffs bring this action against the defendant, Bank of America, N.A. ("Bank of America"),*fn1 alleging violations of the Fair Credit Reporting Act (the "FCRA"), 15 U.S.C. § 1681 et seq., the Fair Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. § 1692 et seq., the Truth in Lending Act (the "TILA"), 15 U.S.C. § 1601 et seq., and a variety of Minnesota state laws. The allegations relate to a mortgage loan issued to the plaintiffs by Bank of America's predecessor-in-interest. The plaintiffs have moved for relief relating to various discovery issues. The defendant opposes the plaintiffs' motion and has cross-moved on related discovery issues. For the reasons that follow, the plaintiffs' motions are denied and the defendant's motions are granted in part and denied in part.

Background

The underlying dispute in this case relates to the defendant's foreclosure in October 1988 on a property owned by the plaintiffs.*fn2 The plaintiffs allege, among other things, that on three separate occasions from about November 2001 to May 2002, they disputed an unspecified "trade line" regarding their creditworthiness that was reported to various credit bureaus by Bank of America. (Amended Complaint ("Am. Compl."), attached as Exh. U to Declaration of Steven S. Rand, dated Oct. 30, 2006 ("Rand 10/30/06 Decl."), ¶¶ 15-25). On June 7, 2002, Douglas Norton, Bank of America's Executive Relations Officer, agreed to delete the disputed "trade line," and Bank of America subsequently contacted the Equifax, Trans Union, and Experian credit reporting services to inform them of the deletion. (Am. Compl., ¶¶ 26-27). However, in mid-July 2002, another Bank of America employee named "Diane" directed CSC Credit Services, Inc. ("CSC") to continue reporting the trade line. (Am. Compl., ¶¶ 29-31). The plaintiffs allege that CSC reported the trade line seven times, and that the plaintiffs were denied credit as a result of these reports. (Am. Compl., ¶ 33).

The instant motion concerns various items of discovery sought by the plaintiffs. They have made various requests for relief and motions for sanctions related to the defendant's conduct during discovery. The plaintiffs also appear to request summary judgment on several of their claims. In addition, they have asked that I recuse myself from further involvement in the case. The plaintiffs first made their motion in a letter dated October 9, 2006. (Letter from Barbara R. Burns, dated Oct. 9, 2006 ("Burns 10/9/06 Letter"). They then filed formal motion papers on October 16, 2006 requesting the same relief. (Plaintiffs' Motion to Compel Discovery and for Other Relief dated Oct. 16, 2006 ("Pl. 10/16/06 Memo.")). The defendant replied and cross-moved for various forms of relief by letter dated October 17, 2006. (Letter of Steven S. Rand dated Oct. 17, 2006 ("Rand 10/17/06 Letter")). Since then, the plaintiffs have filed five additional memoranda, styled variously as answers to the defendant's cross-motion, a supplemental motion for relief, and responses (and sur-responses) to the defendant's briefs. The defendant, meanwhile, has filed a memorandum in opposition and cross-motion for various relief, another memorandum in opposition and in further support of its cross-motion, and a memorandum in opposition to the plaintiffs' "supplemental motion." In its papers, the defendant opposes each of the plaintiffs' requests and cross-moves for various forms of relief and for sanctions against the plaintiffs. Each disputed issue will be discussed in turn and the relevant factual and procedural background will be discussed as it relates to each item.

Discussion

A. Plaintiffs' Requests

1. Recusal

The plaintiffs contend that I should recuse myself from this case or, alternatively, be disqualified for cause. A "justice, judge, or magistrate [judge] of the United States" is required to disqualify himself "in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The test is whether "a reasonable person, knowing all the facts, [would] conclude that the trial judge's impartiality could reasonably be questioned[.]" United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992); accord Bilello v. Abbott Laboratories, 825 F. Supp. 475, 478 (E.D.N.Y. 1993). Recusal is appropriate when a judge "expresses a personal bias concerning the outcome of the case at issue." Lovaglia, 954 F.2d at 815 (citing United States v. Diaz, 797 F.2d 99, 100 (2d Cir. 1986)).

The plaintiffs claim that I have displayed "favoritism" toward the defendants and cite a number of instances that allegedly evidence this bias. First, they cite my use of the term "nonsense" in characterizing a dispute between the parties.*fn3 (Plaintiffs' Response to Defendants' "Cross-Motion" dated Feb. 12, 2004 ("Pl. 2/12/07 Memo.") at 33). But "expressions of impatience, dissatisfaction, annoyance, and even anger" do not constitute bias. Liteky v. United States, 510 U.S. 540, 555-56 (1994). The mild rebuke at issue here, which was not even directed at a particular party, can therefore hardly be grounds for recusal.

Second, the plaintiffs claim that I have engaged in what are "tantamount to ex parte communications with defense counsel." (Pl. 2/12/07 Memo. at 1, 34). This allegation is untrue and the plaintiffs offer no evidence to substantiate it. The plaintiffs are likely referring to phone calls between my chambers and the individual parties to schedule conferences and the like. The Honorable Richard M. Berman, U.S.D.J., addressed this issue directly in his September 29, 2006 Order in this case. See Burns v. Bank of America, 03 Civ. 1685, 2006 WL 2819589, at *2 (S.D.N.Y. Sept. 29, 2006) (holding that scheduling call between chambers and defense counsel was not improper because "[s]uch purely procedural calls in no way bear on the merits of the proceedings to which they are related and are not ex parte communications").

Third, the plaintiffs indicate that counsel for the defendants at one point stated that they were "sure" that I would make a particular ruling with regard to one of the discovery disputes at hand. (Pl. 2/12/07 Memo. at 34). The plaintiffs do not explain why this gives rise to an appearance of favoritism. Presumably, they believe that defense counsel's confident prediction regarding a particular outcome in the dispute indicates that he is somehow in cahoots with the Court. There is no factual basis for the plaintiffs' suspicion.

Finally, and most ironically, the plaintiffs claim that the court has "unduly prolonged and delayed adjudication" of the discovery issues at bar. (Pl. 2/12/07 Memo. at 34). This, after the plaintiffs have insisted on submitting over the past five months no less than six separate memoranda of law totaling well over 150 pages, for almost all of which they requested extensions, along with many additional pages of accompanying material and countless letter motions, all relating to the instant discovery disputes.

A judge has "'an affirmative duty . . . not to disqualify himself unnecessarily, particularly where the request for disqualification was not made at the threshold of the litigation and the judge has acquired a valuable background of experience.'" McGann v. Kelly, 891 F. Supp. 128, 137 (S.D.N.Y. 1995) (quoting United States v. Yonkers Board of Education, 946 F.2d 180, 183 (2d Cir. 1991). Accordingly, the motion for recusal is denied.

2. Deposition of Timothy Mayopolous

The plaintiffs seek to depose Timothy Mayopolous, General Counsel of Bank of America. As Bank of America has declined to make him available for deposition, the plaintiffs now move pursuant to Rule 37 of the Federal Rules of Civil Procedure to compel his testimony. (Pl. 10/16/06 Memo. at 5-7). Bank of America has in turn moved pursuant to Rule 26(c) for a protective order precluding the parties from deposing Mr. Mayopolous, claiming that he lacks knowledge of relevant facts. (Rand 10/17/06 Letter at 4-6).

The Federal Rules set very liberal limits on the scope of discovery. A party may inquire about "any matter, not privileged, that is relevant to [a] claim or defense[,]" and "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Fed. R. Civ. P. 26(b)(1). "[H]ighly-placed executives are not immune from discovery. 'The fact that [an executive] has a busy schedule' is [] not a basis for foreclosing otherwise proper discovery.'". Consolidated Rail Corp. v. Primary Industries Corp., No. 92 Civ. 4927, 1993 WL 364471, at *1 (S.D.N.Y. Sept. 10, 1993)(quoting CBS, Inc. v. Ahern, 102 F.R.D. 820, 822 (S.D.N.Y. 1984)). Even where, as in this case, a high-ranking corporate officer denies personal knowledge of the issues at hand, this "claim . . . is subject to testing by the examining party." Consolidated Rail Corp., 1993 WL 364471, at *1 (citing Amherst Leasing Corp. v. Emhart Corp., 65 F.R.D. 121, 122 (D. Conn. 1974)).

Nevertheless, discovery is not boundless, and a court may place limits on discovery demands that are "unreasonably cumulative or duplicative," or in cases where the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.

Fed. R. Civ. P. 26(b)(2)(C). Likelihood of harassment and business disruption are factors to be considered in deciding whether to allow discovery of corporate executives. See Consolidated Rail Corp., 1993 WL 364471, at *1; Arkwright Mutual Insurance Co. v. National Union Fire Insurance Co., No. 90 Civ. 7811, 1993 WL 34678, at *2 (S.D.N.Y. Feb. 4, 1993). Unless it can be demonstrated that a corporate official has "some unique knowledge" of the issues in the case, "it may be appropriate to preclude a [] deposition of a highly-placed executive" while allowing other witnesses with the same knowledge to be questioned. Consolidated Rail Corp., 1993 WL 364471, at *1 (citations omitted).

Here, the plaintiffs have failed to demonstrate a need for Mr. Mayopolous' testimony, and the likelihood of harassment is significant. Mr. Mayopolous did not begin working at Bank of America until 2004, well after the events at issue in this litigation. (Rand 10/17/06 letter at 4). He has attested that he has no personal knowledge of the events alleged by the plaintiffs.

(Declaration of Timothy J. Mayopolous dated Nov. 21, 2006, attached as Exh. E to Declaration of Steven S. Rand dated Nov. 29, 2006 ("Rand 11/29/06 Decl."), ¶ 3). Bank of America has instead offered the testimony of Jacqueline Tobolski, the "bank officer who is most familiar with the facts of this case." (Rand 10/17/06 Letter at 5). The plaintiffs have refused to depose Ms. Tobolski.

The plaintiffs' arguments for deposing Mr. Mayopolous rather than Ms. Tobolski are not compelling. They contend that despite his affadivit to the contrary, there is a presumption that as General Counsel Mr. Mayopolous has "personal knowledge of all major litigation involving Bank of America" and that he is the only officer who can attest to the "propriety" of actions taken by members of legal department. (Pl. 2/12/07 Memo. at 16-17). It is unclear how Mr. Mayopolous' general knowledge of "major litigation" bears on the facts of this case; if the plaintiffs are suggesting that they would depose Mr. Mayopolous regarding Bank of America's prosecution of the instant litigation, such a tactic is clearly inappropriate.

The plaintiffs state that they are entitled to information regarding interactions between two former Bank of America lawyers, Paul Kucinski and Lawrence Wilford,*fn4 who were involved in the handling of the foreclosure at issue here, and the General Counsel, who was their supervisor.*fn5 (Pl. 2/12/07 Memo. at 17). However, Mr. Mayopolous was not General Counsel at the time of the events in question. The basis of the plaintiffs' assumption that he has discoverable information is unclear. The plaintiffs contend that "[i]n the absence of Paul Polking, the [] General Counsel who personally supervised Kucinski throughout [the period in question], the [p]laintiffs' notice of deposition of the successor General Counsel is reasonable." (Pl. 2/12/07 Memo. at 21-22). But saying something is reasonable does not make it so. If the plaintiffs believe that Mr. Polking has relevant information, they should seek to depose him just as they are seeking to depose Mr. Kucinski and Mr. Wilford, both former employees. The plaintiffs have not demonstrated that Mr. Mayopolous has knowledge of the events in question, let alone information that is "integral and key" to their case. (Pl. 2/12/07 Memo. at 18).

Plaintiffs further suggest that even though Mr. Mayopolous has disavowed knowledge of the facts in question, he should be compelled to testify regarding Bank of America "policies, reporting structures, and internal operating procedures." (Pl. 2/12/07 Memo. at 14). If Mr. Mayopolous is not available, they ask that they be permitted to depose an "executive with profit-and-loss responsibility for BA Mortgage operations." (Pl. 2/12/07 Memo. at 24). However, Bank of America policy is not relevant to the plaintiffs' claims, which concern a single set of disputed transactions. Moreover, the plaintiffs have not even attempted to obtain such information from the defendant's proferred witness, Ms. Tobolski.

The plaintiffs have not "sought to question lower level corporate officials with similar knowledge before asking this Court to compel the depositions of [higher level executives]." Six West Retail Acqisition, Inc. v. Sony Theatre Management Corp., 203 F.R.D. 98, 104 (S.D.N.Y.). The plaintiffs object to the defendant's proposed witness Ms. Tobolski, calling her a "glorified clerk," complaining that she has no legal training, that she has insufficient knowledge of actions taken by Mr. Kucinski, and that her testimony will consist of "exactly what attorney Rand tells her to say." (Pl. 2/12/07 Memo. at 18 & n.13). It is not clear how the plaintiffs can know the extent of Ms. Tobolski's knowledge of the events in this case without ever speaking to her. The scope of Ms. Tobolski's information is best clarified by proceeding with the deposition. Her lack of legal training should be of no import as she is a fact witness; indeed, it would be inappropriate for her to offer legal opinions. Finally, the plaintiffs' disparagement of Ms. Tobolski as a "glorified clerk" and their suggestion that she will offer coached or perjured testimony are simply baseless.

The plaintiffs have cited a number of cases in support of their motion to compel Mr. Mayopolous's deposition, each of which is inapposite. Unlike the plaintiff in Six West, the plaintiffs in this case have not "support[ed] [their] allegations with evidence sufficient for this Court to infer that [the proposed deponent] has some unique knowledge on a number of relevant issues." 203 F.R.D. at 106. In General Star Indemnity Co. v. Platinum Indemnity Ltd., 210 F.R.D. 80 (S.D.N.Y. 2002), the court rejected a protective order seeking to prevent a deposition because (1) the witnesses who sought to avoid deposition had not provided affidavits attesting that they lacked relevant knowledge; (2) other deposition testimony indicated that the witnesses in question were likely to possess pertinent information; and (3) the party seeking deposition had already pursued alternative sources of information suggested by the defendant. Id. at 83-84. None of those factors is present here. In Speadmark, Inc. v. Federated Department Stores, Inc., 176 F.R.D. 116, 118 (S.D.N.Y. 1997), the court denied a protective order where the witness in question was involved in negotiations regarding the contract at issue. Mr. Mayopolous, by contrast, was not even working at Bank of America when the disputed transactions took place. See Scott v. Dime Savings Bank, No. 88 Civ. 5495, 1989 WL 140286, at *2 (S.D.N.Y. Nov. 16, 1989)(allowing bank to designate an official "most familiar with the facts" to testify). Treppel v. Biovail Corp., No. 03 Civ. 3002, 2006 WL 468314, at *3 (S.D.N.Y. Feb. 28, 2006)(deposition of senior corporate officers denied because "plaintiff has not explained why the noticed individuals are believed to have personal knowledge of the underlying events, nor why that knowledge is believed to be unique," because plaintiff had "made no attempt to depose any lower level executives," and because document discovery was not complete).

Accordingly, the plaintiffs' motion to compel Mr. Mayopolous's deposition is denied. If, after deposing Ms. Tobolski and other Bank of America employees, the plaintiffs develop a foundation for their belief that Mr. Mayopolous possesses unique, non-duplicative knowledge of relevant facts, they may seek his deposition at that time. The defendants' motion for a protective order is denied without prejudice to renewal should the plaintiff's seek to depose Mr. Mayopolous at some later date.

3. Subpoena Issued to Paul Kucinski

The plaintiffs seek an order declaring Paul Kucinski to be a party witness and additionally move to be awarded costs incurred while attempting to locate and serve him with a subpoena. Mr. Kucinski was an attorney for Bank of America during the period in which the events of which the plaintiffs complain took place. Both parties identified him as a material witness, but Bank of America informed the plaintiffs that he stopped working for them in 2005.

(Burns 10/9/06 Letter at 1). The plaintiffs claim that defense counsel initially represented that they would locate Mr. Kucinski, but never did so, and that as a result the plaintiffs incurred $90.00 in fees searching for his current whereabouts. (Burns 10/9/06 letter at 1-2). They imply that defense counsel knew of Mr. Kucinksi's location all ...


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