United States District Court, N.D. Indiana, South Bend Division
MARIO L. SIMS, et al., Plaintiff,
NEW PENN FINANCIAL LLC d/b/a SHELLPOINT MORTGAGE SERVICING, Defendant.
OPINION AND ORDER
Michael G. Gotsch, Sr. United States Magistrate Judge.
the Court are three discovery-related motions:
Plaintiffs' Motion to Compel Defendant to Respond to
Discovery [DE 48]; Defendant's Motion for
Protective Order [DE 61]; and Plaintiffs' Motion
to Stay Discovery [DE 62]. For the following
reasons, the Court denies Plaintiffs' motion to compel
and Defendant's motion for protective order without
prejudice. In addition, the Court extends the discovery
deadline and denies Plaintiffs' motion to stay.
cases arises out of Plaintiffs' efforts to assume the
mortgage loan of Defendant's borrower, John Tiffany.
Plaintiffs purchased land on a land-sale contract from
Tiffany who stopped paying his mortgage payments to Defendant
after executing the contract with Plaintiffs. Plaintiffs
attempted to assume the loan, but were not able to do so.
Plaintiffs, proceeding pro se, initiated this
lawsuit alleging violations of the Equal Credit Opportunity
Act (“ECOA”), 15 U.S.C. § 1691 et
seq. Plaintiffs allege that Defendant made statements
that discouraged them from the credit application process and
that Defendant discriminated against them based on race by
imposing different terms and conditions on
of their discovery related to the ECOA claim, Plaintiffs
served Defendant with their First Requests for Production of
Documents on February 28, 2017. On March 30, 2017, Defendant
served responses and objections on Plaintiffs without
including any of the requested documents. Through e-mail on
the same day, however, Defendant informed Plaintiffs that the
document production would be delivered shortly either by
e-mail or on a CD via regular mail. Production of the
documents did not occur immediately resulting in e-mails and
telephone calls between Plaintiff, Mario Sims (“Mr.
Sims”), and Defendant's counsel regarding the
discovery requests. On April 6, 2017, Defendant's counsel
produced the documents provided to him by Defendant. Finding
the production incomplete, Mr. Sims exchanged additional
emails with Defendant's counsel. Defendant's counsel
sent the last e-mail in the exchange on April 11, 2017,
indicating that he would consult with his client about
additional documents and would supplement production as
necessary as soon as possible. Still dissatisfied with
Defendant's production and before any supplemental
production was served, Plaintiffs filed the instant motion to
compel on April 26, 2017. In their motion, Plaintiffs contend
that Defendant's production was untimely and incomplete.
Plaintiffs also asked the Court to award them reasonable
expenses for the filing of the instant motion to compel.
then stipulated to three extensions of Defendant's
deadline to respond to the instant motion to compel,
presumably to allow Defendant time to produce its
supplemental responses. On June 2, 2017, Defendant filed its
supplemental responses totaling about 1, 000 pages of
information. [DE 56]. Through an e-mail to Mr. Sims
dated June 6, 2017, Defendant's counsel reported
Defendant's willingness to produce additional
information, such as certain confidential and proprietary
documents namely its Fair Servicing Policy and its
Subservicing Agreement, and reminded Mr. Sims about the
proposed protective order sent to Plaintiffs for their
approval about a week earlier. [DE 58-2 at 2].
Earlier in the same e-mail, Defendant's counsel wrote
I write you to follow-up on your very brief telephone call to
me early this morning. Unfortunately, I was not afforded any
opportunity to respond to your general dissatisfaction with
my discovery responses before you ended the call. I am happy
to discuss any specific disputes you may have about my
client's document production. As you know, Rule 37
requires parties to meet and confer about any discovery
disputes. That did not occur. I find it most productive for
parties to discuss specific issues in the case rather than
resorting to disparaging remarks and angry demands. If you
would like to have such a discussion, please give me a call
at your convenience.
the same day, Mr. Sims responded via e-mail (1) accusing
Defendant's counsel of patronizing him; (2) disputing
Defendant's counsel's interpretation of the Rule 37
meet and confer requirement; (3) advocating for his legal
position based on information found in Defendant's
supplemental production; (4) advising Defendant's counsel
to read Rule 11; and (5) reminding Defendant's counsel
that his discovery responses were not complete.
[Id.]. In his email, Mr. Sims also stated: “I
am not your [n-word], . . . .” and “We are not
your [n-word]s.” [Id.]. Mr. Sims then
Neither Chief Judge Simon, nor Magistrate [Judge] Gotsch
would be happy with this continuing dilatory behavior in
light of the facts. We will no longer confer. I do not trust
you. We believe we have met the requirements. You may want to
counsel your client to take our last settlement offer. It
will be off the table forever after 5 p.m, [sic] June 15th.
15, 2017, Defendant timely filed its response opposing the
instant motion to compel for four reasons. First, Defendant
argues that Plaintiffs' efforts to meet and confer before
filing the motion to compel did not satisfy the Rule 37(a)
requirements. Second, Defendant argues that Plaintiffs'
motion, and their correspondence with Defendant before filing
the motion, did not explain their opposition to
Defendant's discovery responses in sufficient detail.
Third, Defendant contends that its supplemental discovery
responses on June 2, 2017, rendered the instant motion to
compel moot. And lastly, Defendant claims it acted in good
faith to resolve the parties' discovery dispute such that
sanctions in the form of costs related to the instant motion
should not be awarded to Plaintiffs.
20, 2017, Plaintiffs timely filed their reply brief, which
included no evidence of any further efforts to resolve the
discovery dispute with Defendant after its supplemental
discovery responses were served, and properly filed, on June
In addition, Plaintiffs reiterated the arguments originally
set forth in their motion to compel and stated that Defendant
still had not produced documents responsive to their Request
Nos. 12-26. Furthermore, Plaintiffs cited documents produced
by Defendant in support of arguments on the merits of their
ECOA claim. Plaintiffs also argued for sanctions against
Defendant based on its alleged lies and gamesmanship in this
30, 2017, Defendant properly filed and served its First Set
of Discovery Requests Directed to Plaintiffs, which included
interrogatories, requests for production of documents, and
requests for admission. Under Fed.R.Civ.P. 33(b)(2),
34(b)(2)(A), and 36(a)(3), ...