1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 Case No.: 20CV2202-L(BLM) 10 PIA MCADAMS, on behalf of herself and
those similarly situated, 11 ORDER DENYING PLAINTIFF’S Plaintiff, MOTION TO COMPEL DISCOVERY 12 RESPONSES v. 13 [ECF NO. 45] NATIONSTAR MORTGAGE LLC AND DOES 1- 14 10, 15 Defendants. 16 17 Currently before the Court is Plaintiff’s March 14, 2022 Motion to Compel Discovery 18 Responses (“MTC”) [ECF No. 45-1], Defendant’s March 18, 2022 opposition to the motion 19 (“Oppo.”) [ECF No. 47], and Plaintiff’s March 23, 2022 reply (“Reply”) [ECF No. 48]. For the 20 reasons set forth below, Plaintiff’s motion is DENIED. 21 FACTUAL BACKGROUND 22 “This is a putative consumer class action where Plaintiff alleges that [Defendant] falsely 23 led Plaintiff to believe that [it] was processing Plaintiff’s loan modification application instead of 24 going through with the foreclosure process on her home.” MTC at 6 (citing ECF No. 17, First 25 Amended Complaint (“FAC”) ¶ 63). This deceptive and illegal practice, known as “dual tracking,” 26 is the basis for all of Plaintiff’s claims. Id. (citing FAC at ¶¶ 76–78, 128– 30, 140–42, 148, 162). 27 Plaintiff seeks to represent a class consisting of “[a]ll persons whose California owner-occupied 1 (‘Nationstar’) and were foreclosed on by Nationstar after having submitted a loan modification 2 application, on or after October 1, 2017 and until notice is disseminated to the Class[.]” Oppo. 3 at 6 (quoting FAC ¶ 105). 4 DISCOVERY BACKGROUND 5 On November 19, 2021, Plaintiff served her First Set of Requests for Production of 6 Documents (“RFP”) on Defendant Nationstar Mortgage, LLC. MTC at 7; see also ECF No. 45-2, 7 Declaration of Michael T. Houchin in Support of Plaintiff’s Motion to Compel (“Houchin Decl.”) at 8 ¶ 2, Exh. 1. After the parties agreed on an extension of time to respond, Defendant served 9 objections to the RFPs on January 10, 2022. Id.; see also Houchin Decl. at ¶ 3, Exh. 2. 10 The parties met and conferred on January 18, 2022 regarding Defendant’s discovery 11 responses. MTC at 7; see also Houchin Decl. at ¶ 4. Defendant agreed to supplement its 12 production for RFP No. 17, but would not agree to produce the names and contact information 13 of the putative class members. Id. at 7-8; see also Houchin Decl. at ¶ 4. On February 28, 2022, 14 Defendant supplemented its responses to Plaintiff’s First Set of RFPs, including a spreadsheet 15 with potential class members’ “(1) loan number; (2) original loan amount; (3) unpaid balance 16 of loan at time of foreclosure sale; (4) property state; (5) foreclosure sale date; (6) loan 17 modification application submitted date; and (7) loan modification application decision date.” 18 Oppo. at 7; see also ECF No. 47-1, Declaration of Mary Kate Kamka in Support of Nationstar 19 Mortgage LLC D/B/A Mr. Cooper’s Opposition to Plaintiff’s Motion to Compel Discovery Responses 20 (“Kamka Decl.”) at ¶ 3; MTC at 8; Houchin Decl. at ¶5. The parties met and conferred again on 21 March 4, 2022, but could not reach an agreement. See MTC at 8; Houchin Decl. at ¶ 7. 22 On March 4, 2022, the parties jointly contacted the Court regarding Defendant’s response 23 to RFP No. 17. ECF No. 43. In regard to the dispute, the Court set a briefing schedule. Id. 24 The parties timely filed their pleadings. See MTC, Oppo., and Reply. 25 LEGAL STANDARD 26 The scope of discovery under the Federal Rules of Civil Procedure is defined as follows: 27 Parties may obtain discovery regarding any nonprivileged matter that is relevant 1 considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ 2 resources, the importance of the discovery in resolving the issues, and whether 3 the burden or expense of the proposed discovery outweighs its likely benefit. 4 Information within this scope of discovery need not be admissible in evidence to be discoverable. 5 6 Fed. R. Civ. P. 26(b)(1). 7 District courts have broad discretion to determine relevancy for discovery purposes. See 8 Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). District courts also have broad discretion 9 to limit discovery to prevent its abuse. See Fed. R. Civ. P. 26(b)(2) (instructing that courts must 10 limit discovery where the party seeking the discovery “has had ample opportunity to obtain the 11 information by discovery in the action” or where the proposed discovery is “unreasonably 12 cumulative or duplicative,” “obtain[able] from some other source that is more convenient, less 13 burdensome, or less expensive,” or where it “is outside the scope permitted by Rule 26(b)(1)”). 14 PLAINTIFF’S MOTION 15 Plaintiff seeks an order from the Court compelling Defendant to supplement its responses 16 to RFP No. 17 and produce the names and contact information of the putative class members. 17 Id. at 6-7. RFP No. 17 requests 18 DOCUMENTS sufficient to IDENTIFY all PERSONS in California who 19 submitted a loss mitigation application to YOU from October 1, 2017 until the present and then subsequently had their home foreclosed. 20 21 Id. at 7; see also Houchin Decl. at Exh. 1. Defendant objected to RFP No. 17 as follows: 22 Nationstar objects to this request on the grounds that it is premature, overly broad, and irrelevant to the claims and defenses as they currently exist. Plaintiff’s 23 purported class has not been certified and, thus, the requested information is 24 overbroad and irrelevant. Moreover, Plaintiff’s alleged class definition is overbroad in that it purports to include all California borrowers whose property was foreclosed 25 on by Nationstar after having submitted a loan modification application, many of 26 whom have no claim for violation of the California Homeowner Bill of Rights or fraud against Nationstar. Furthermore, determining whether any other individual 27 has similar claims against Nationstar as those alleged by Plaintiff would require a burdensome file-by-file review of the individuals’ loan modification application and 1 foreclosure history, thus illustrating why Plaintiff’s claims cannot be certified. 2 Nationstar further objects to this request as it seeks disclosure of private information of third parties who are not parties to this action, and may not even 3 be members of a class, should a class be certified. 4 Nationstar further objects to this request to the extent that it seeks information protected by the attorney-client privilege, the attorney work-product doctrine, or 5 any other applicable privilege. 6 Based on these objections, Nationstar is willing to meet and confer with Plaintiff’s 7 counsel to determine a narrower request for information relating to the alleged class members. 8 9 Id. Plaintiff argues that (1) the names and contact information of the putative class members 10 are relevant “to aid Plaintiff’s theories of liability, further develop evidence in support of class 11 certification, and to respond to Nationstar’s anticipated opposition to class certification,” (2) the 12 request is not overbroad as it tracks the proposed class definition in Plaintiff’s FAC, and (3) any 13 privacy concerns are alleviated by the protective order in this case. Id. at 9-12.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 Case No.: 20CV2202-L(BLM) 10 PIA MCADAMS, on behalf of herself and
those similarly situated, 11 ORDER DENYING PLAINTIFF’S Plaintiff, MOTION TO COMPEL DISCOVERY 12 RESPONSES v. 13 [ECF NO. 45] NATIONSTAR MORTGAGE LLC AND DOES 1- 14 10, 15 Defendants. 16 17 Currently before the Court is Plaintiff’s March 14, 2022 Motion to Compel Discovery 18 Responses (“MTC”) [ECF No. 45-1], Defendant’s March 18, 2022 opposition to the motion 19 (“Oppo.”) [ECF No. 47], and Plaintiff’s March 23, 2022 reply (“Reply”) [ECF No. 48]. For the 20 reasons set forth below, Plaintiff’s motion is DENIED. 21 FACTUAL BACKGROUND 22 “This is a putative consumer class action where Plaintiff alleges that [Defendant] falsely 23 led Plaintiff to believe that [it] was processing Plaintiff’s loan modification application instead of 24 going through with the foreclosure process on her home.” MTC at 6 (citing ECF No. 17, First 25 Amended Complaint (“FAC”) ¶ 63). This deceptive and illegal practice, known as “dual tracking,” 26 is the basis for all of Plaintiff’s claims. Id. (citing FAC at ¶¶ 76–78, 128– 30, 140–42, 148, 162). 27 Plaintiff seeks to represent a class consisting of “[a]ll persons whose California owner-occupied 1 (‘Nationstar’) and were foreclosed on by Nationstar after having submitted a loan modification 2 application, on or after October 1, 2017 and until notice is disseminated to the Class[.]” Oppo. 3 at 6 (quoting FAC ¶ 105). 4 DISCOVERY BACKGROUND 5 On November 19, 2021, Plaintiff served her First Set of Requests for Production of 6 Documents (“RFP”) on Defendant Nationstar Mortgage, LLC. MTC at 7; see also ECF No. 45-2, 7 Declaration of Michael T. Houchin in Support of Plaintiff’s Motion to Compel (“Houchin Decl.”) at 8 ¶ 2, Exh. 1. After the parties agreed on an extension of time to respond, Defendant served 9 objections to the RFPs on January 10, 2022. Id.; see also Houchin Decl. at ¶ 3, Exh. 2. 10 The parties met and conferred on January 18, 2022 regarding Defendant’s discovery 11 responses. MTC at 7; see also Houchin Decl. at ¶ 4. Defendant agreed to supplement its 12 production for RFP No. 17, but would not agree to produce the names and contact information 13 of the putative class members. Id. at 7-8; see also Houchin Decl. at ¶ 4. On February 28, 2022, 14 Defendant supplemented its responses to Plaintiff’s First Set of RFPs, including a spreadsheet 15 with potential class members’ “(1) loan number; (2) original loan amount; (3) unpaid balance 16 of loan at time of foreclosure sale; (4) property state; (5) foreclosure sale date; (6) loan 17 modification application submitted date; and (7) loan modification application decision date.” 18 Oppo. at 7; see also ECF No. 47-1, Declaration of Mary Kate Kamka in Support of Nationstar 19 Mortgage LLC D/B/A Mr. Cooper’s Opposition to Plaintiff’s Motion to Compel Discovery Responses 20 (“Kamka Decl.”) at ¶ 3; MTC at 8; Houchin Decl. at ¶5. The parties met and conferred again on 21 March 4, 2022, but could not reach an agreement. See MTC at 8; Houchin Decl. at ¶ 7. 22 On March 4, 2022, the parties jointly contacted the Court regarding Defendant’s response 23 to RFP No. 17. ECF No. 43. In regard to the dispute, the Court set a briefing schedule. Id. 24 The parties timely filed their pleadings. See MTC, Oppo., and Reply. 25 LEGAL STANDARD 26 The scope of discovery under the Federal Rules of Civil Procedure is defined as follows: 27 Parties may obtain discovery regarding any nonprivileged matter that is relevant 1 considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ 2 resources, the importance of the discovery in resolving the issues, and whether 3 the burden or expense of the proposed discovery outweighs its likely benefit. 4 Information within this scope of discovery need not be admissible in evidence to be discoverable. 5 6 Fed. R. Civ. P. 26(b)(1). 7 District courts have broad discretion to determine relevancy for discovery purposes. See 8 Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). District courts also have broad discretion 9 to limit discovery to prevent its abuse. See Fed. R. Civ. P. 26(b)(2) (instructing that courts must 10 limit discovery where the party seeking the discovery “has had ample opportunity to obtain the 11 information by discovery in the action” or where the proposed discovery is “unreasonably 12 cumulative or duplicative,” “obtain[able] from some other source that is more convenient, less 13 burdensome, or less expensive,” or where it “is outside the scope permitted by Rule 26(b)(1)”). 14 PLAINTIFF’S MOTION 15 Plaintiff seeks an order from the Court compelling Defendant to supplement its responses 16 to RFP No. 17 and produce the names and contact information of the putative class members. 17 Id. at 6-7. RFP No. 17 requests 18 DOCUMENTS sufficient to IDENTIFY all PERSONS in California who 19 submitted a loss mitigation application to YOU from October 1, 2017 until the present and then subsequently had their home foreclosed. 20 21 Id. at 7; see also Houchin Decl. at Exh. 1. Defendant objected to RFP No. 17 as follows: 22 Nationstar objects to this request on the grounds that it is premature, overly broad, and irrelevant to the claims and defenses as they currently exist. Plaintiff’s 23 purported class has not been certified and, thus, the requested information is 24 overbroad and irrelevant. Moreover, Plaintiff’s alleged class definition is overbroad in that it purports to include all California borrowers whose property was foreclosed 25 on by Nationstar after having submitted a loan modification application, many of 26 whom have no claim for violation of the California Homeowner Bill of Rights or fraud against Nationstar. Furthermore, determining whether any other individual 27 has similar claims against Nationstar as those alleged by Plaintiff would require a burdensome file-by-file review of the individuals’ loan modification application and 1 foreclosure history, thus illustrating why Plaintiff’s claims cannot be certified. 2 Nationstar further objects to this request as it seeks disclosure of private information of third parties who are not parties to this action, and may not even 3 be members of a class, should a class be certified. 4 Nationstar further objects to this request to the extent that it seeks information protected by the attorney-client privilege, the attorney work-product doctrine, or 5 any other applicable privilege. 6 Based on these objections, Nationstar is willing to meet and confer with Plaintiff’s 7 counsel to determine a narrower request for information relating to the alleged class members. 8 9 Id. Plaintiff argues that (1) the names and contact information of the putative class members 10 are relevant “to aid Plaintiff’s theories of liability, further develop evidence in support of class 11 certification, and to respond to Nationstar’s anticipated opposition to class certification,” (2) the 12 request is not overbroad as it tracks the proposed class definition in Plaintiff’s FAC, and (3) any 13 privacy concerns are alleviated by the protective order in this case. Id. at 9-12. 14 DEFENDANT’S OPPOSITION 15 Defendant contends that the Court should deny Plaintiff’s motion because 16 (1) Plaintiff has failed to make the requisite showing to permit this type of discovery; (2) 17 Plaintiff’s request seeks information that is not relevant to the parties’ claims and defenses at this juncture in the case given that no class has been certified and Nationstar’s 18 dipositive Motion for Judgment on the Pleadings (“MJOP”; ECF No. 36) is currently pending; and (3) the phone numbers of the 1,280 loan account holders listed in 19 Nationstar’s list should not be compelled based on the right of privacy. 20 21 Oppo. at 5. 22 PLAINTIFF’S REPLY 23 Plaintiff replies that the Court should exercise its discretion and not require Plaintiff to 24 make a showing at this stage, but notes that regardless, she has done so. Reply at 25 5. Plaintiff also notes that while her FAC “adequately alleges that the requirements for class 26 certification are satisfied[,]” the desired information would aid her in demonstrating the 27 requirements of Fed. R. Civ. P. 23 Id. at 6. Plaintiff argues that the class member contact 1 her class allegations and rebut Defendant’s opposition to class certification. Id. at 8. Finally, 2 Plaintiff argues that any privacy concerns are alleviated by the protective order that has been 3 entered in this case. Id. at 9. 4 DISCUSSION 5 The scope of pre-class certification discovery lies within the sound discretion of the trial 6 court. Coleman v. Jenny Craig, Inc., 2013 WL 2896884, at *4 (S.D. Cal. June 12, 2013) (citing 7 Kamm v. Cal. City Dev. Co., 509 F.2d 205 (9th Cir.1975)). In seeking discovery before class 8 certification, Plaintiffs bear the burden of making a showing that the Fed. R. Civ. P. 9 23 requirements are satisfied or that discovery is likely to substantiate the class allegations 10 (Mantolete Burden). Salgado v. O'Lakes, 2014 WL 7272784, at *4 (E.D. Cal. Dec. 18, 2014); 11 see also Coleman, 2013 WL 2896884, at *4 (citing Mantolete v. Bolger, 767 F.2d 1416, 1424 12 (9th Cir.1985) (“Although in some cases a district court should allow discovery to aid the 13 determination of whether a class action is maintainable, the plaintiff bears the burden of 14 advancing a prima facie showing that the class action requirements of Fed. R. Civ. P. 23 are 15 satisfied or that discovery is likely to produce substantiation of the class allegations. Absent 16 such a showing, a trial court's refusal to allow class discovery is not an abuse of discretion.”)). 17 Fed. R. Civ. P 23(a) permits a class action to proceed where 18 (1) the class is so numerous that joinder of all members is impracticable; (2) there 19 are questions of law or fact common to the class; (3) the claims or defenses of the 20 representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the 21 class. 22 23 Additionally, a class action only will be certified if 24 (1) there is a risk of substantial prejudice from separate actions; or (2) declaratory 25 or injunctive relief benefitting the class as a whole would be appropriate; or (3) 26 “the questions of law and fact common to class members predominate over any questions affecting only individual members and ... a class action is superior to 27 other available methods for fairly and efficiently adjudicating the controversy. 1 Coleman, 2013 WL 2896884, at *4. “In determining whether to grant discovery the court must 2 consider its need, the time required, and the probability of discovery resolving any factual issue 3 necessary for the determination” of whether a class action is maintainable. Id. (citing Kamm, 4 509 F.2d at 210) (stating that “[t]he propriety of a class action cannot be determined in some 5 cases without discovery, as, for example, where discovery is necessary to determine the 6 existence of a class or set of subclasses. To deny discovery in a case of that nature would be an 7 abuse of discretion. Where the necessary factual issues may be resolved without discovery, it 8 is not required.”). 9 As an initial matter, the Court finds that Plaintiff’s discovery request is overbroad and 10 likely includes information with little if any relevance. Plaintiff seeks personal contact information 11 for every person who submitted a loss mitigation application to Defendant and who were 12 foreclosed upon from October 2017 to present day regardless of whether the person has a claim 13 for violation of the Homeowner Bill of Rights (“HBOR”) or fraud. MTC at 7. Defendant represents 14 that determining which, if any of these potential class members has a dual tracking claim would 15 require an “individualized file-by-file analysis of the individualized issues[,]” including the 16 individuals’ bankruptcy proceedings. Oppo. at 11. Plaintiff makes no effort to narrow the scope 17 of her request by including terms or facts that would indicate possible HBOR or fraud claims. In 18 addition, Plaintiff provides no evidence or explanation in support of her position that some, let 19 alone a significant number of the 1,282 people “identified” in Defendant’s spreadsheet, have 20 viable fraud or HBOR claims. See MTC. At this stage of the litigation, producing the personal 21 contact information for the 1,282 people is not proportional to the needs of the case. 22 Additionally, Plaintiff relies on Amaraut v. Sprint/United Mgt. Co., 2020 WL 8024170 (S.D. 23 Cal. Jan. 14, 2020) to support her argument that the contact information is relevant and 24 necessary “to aid Plaintiff’s theories of liability, further develop evidence in support of class 25 certification, and to respond to Nationstar’s anticipated opposition to class certification” and “to 26 have basic informational access to potential witnesses.” MTC at 10; Reply at 7. Amaraut is 27 distinguishable from the instant case in two important ways. First, there was no dispute in 1 discussed in Amaraut, the parties filed a Joint Motion to Conditionally Certify the Collective and 2 Facilitate Notice Pursuant to 29 U.S.C. § 216(B), which the court granted. Id. at *2. Here, there 3 is a significant dispute as to both the scope and viability of the class. Second, the Amaraut court 4 focused on the fact that plaintiffs were seeking contact information for putative class members 5 who were, or were likely to be, percipient witnesses to the claims alleged in the FSLA case. Id. 6 at *6. Here, Plaintiffs have not established that the 1,281 people who are not parties to the 7 case at this time have an interest in, or have relevant information regarding, the dual tracking 8 class claims. While class member employees are likely to be percipient witnesses to each other’s 9 wage and hour claims in a FLSA case, the same cannot be said of the 1,281 individual 10 homeowners and borrowers in this dual tracking case.1 Defendant’s spreadsheet included each 11 potential putative class members’ “(1) loan number; (2) original loan amount; (3) unpaid balance 12 of loan at time of foreclosure sale; (4) property state; (5) foreclosure sale date; (6) loan 13 modification application submitted date; and (7) loan modification application decision date.” 14 Oppo. at 7; see also Kamka Decl. at ¶ 3; MTC at 8; Houchin Decl. at ¶ 5. Plaintiff has not 15 established why this information is insufficient for Plaintiff to bring her class certification motion. 16 Plaintiff’s discovery request is overbroad, seeks likely irrelevant information, and 17 potentially infringes on the privacy rights of uninvolved individuals as it seeks personal contact 18 information for a large number of people who may not have any interest in or relevant 19 information regarding the dual tracking claims at issue in the litigation. The Court finds that 20 Plaintiff’s need for the personal contact information at this stage and “the probability of that 21
22 1 Plaintiff also cites to Wiegele v. Fedex Ground Package System, 2007 WL 628041, at *2 (S.D. 23 Cal., Feb. 8, 2007) for the idea that “as a general rule, before class certification has taken place, 24 all parties are entitled to ‘equal access to persons who potentially have an interest in or relevant knowledge of the subject of the action” but that case also arose in the employment law context 25 and in full states “[w]age and hour disputes (and others in the same general class) routinely proceed as class actions.” “[A]s a general rule, before class certification has taken place, all 26 parties are entitled to ‘equal access to persons who potentially have an interest in or relevant 27 knowledge of the subject of the action, but who are not yet parties.” Wiegele, 2007 WL 628041, at *2 (internal citations omitted) (emphasis added). 1 information resolving any factual issue necessary for the determination” of class certification are 2 Coleman, 2013 WL 2896884, at *4 (citing Kamm, 509 F.2d at 210). 3 Finally, Plaintiff has not provided evidence making a prima facie showing that the Rule 4 || 23 class requirements are satisfied. While Plaintiff establishes numerosity, by noting there are 5 || potentially 1,281 class members at issue here [See MTC at 12], Plaintiff provides no evidence of 6 ||commonality. Plaintiff merely states that the FAC alleges “that there are several questions of 7 || law and fact common to the class including whether Nationstar has complied with HBOR.” Reply 8 || at 6 (citing FAC at § 107). Plaintiff does not address the concern that dual tracking claims likely 9 || require particularized reviews of each individual's loan interactions with Defendant to understand 10 there are fraud or HBOR claims. For similar reasons, Plaintiff fails to make a prima facie case 11 || for typicality. Because Plaintiff has not made a prima facie showing of commonality or typicality, 12 || the Court declines to evaluate whether Plaintiff has made a prima facie showing of the adequacy 13 || prong. 14 CONCLUSION 15 For the reasons set forth above, Plaintiff’s motion is DENIED. 16 IT IS SO ORDERED. 17 ||Dated: 4/1/2022 lobe Mager 18 Hon. Barbara L. Major United States Maqistrate Judde 19 20 21 22 23 24 25 26 27 28