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States ex rel. Balderas v. Real Estate Law Center, P.C.

United States District Court, D. New Mexico

July 11, 2019

STATE OF NEW MEXICO, ex rel., HECTOR BALDERAS, Attorney General of New Mexico, Plaintiff,
v.
REAL ESTATE LAW CENTER, P.C., a California professional corporation; ERIKSON M. DAVIS, an attorney and resident of California, individually, and dba Real Estate Law Center, P.C., a California professional corporation; DEEPAK S. PARWATIKAR, an attorney and resident of California, individually, and dba Balanced Legal Group, an unidentified trade name or entity, dba www.pinnaclelawcenter.com; CHAD T. PRATT, an attorney and resident of California, individually, and formerly dba Real Estate Law Center, P.C.; the BALANCED LEGAL GROUP, an unidentified trade name or entity located in California, and PINNACLE LAW CENTER, P.C., a California professional corporation, Defendants.

          Hector H. Balderas Attorney General of the State of New Mexico Angelica Anaya-Allen Lisa Giandomenico Assistant Attorneys General of the State of New Mexico State of New Mexico Office of the Attorney General Albuquerque, New Mexico Attorneys for the Plaintiff.

          Real Estate Law Center, P.C. Los Angeles, California Defendant pro se.

          Chad Thomas Pratt Los Angeles, California Defendant pro se.

          Paul J. Kennedy Jessica M. Hernandez Elizabeth Harrison Kennedy, Hernandez & Associates, P.C. Albuquerque, New Mexico Attorneys for Defendants Deepak S. Parwatikar, Pinnacle Law Center, P.C., and Balanced Legal Group.

          Erikson M. Davis Newbury Park, California Defendant pro se.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) Plaintiff's Motion to Provide Notice Under Rule 807 and to Establish Unavailability of Witness, filed April 26, 2019 (Doc. 133)(“Unavailability Motion”); (ii) Plaintiff's Pretrial Motion under Rule 902 to Provide Notice of Plaintiff's Intent to Offer Bank Records, filed April 26, 2019 (Doc. 134)(“Bank Records Motion”); and (iii) the objection of Defendants Deepak S. Parwatikar, Balanced Legal Group, Pinnacle Law Center, P.C. (collectively, the “Parwatikar Defendants”), to the Second Declaration and Affidavit of Caroline A. Dewey (executed June 6, 2016), filed May 24, 2019 (Doc. 143-1)(“Second Dewey Aff.”), in the Defendant Parwatikar's Objections to Plaintiff's Untimely Filings and Disclosures, filed May 25, 2019 (Doc. 147)(hereinafter, the “Objection”). The Court held a hearing on May 28, 2019. See Clerk's Minutes at 1, filed May 28, 2019 (Doc. 151). The primary issues are: (i) whether the Court should deem Caroline A. Dewey unavailable for purposes of rule 804 of the Federal Rules of Evidence, which provides hearsay exceptions for unavailable declarants, because she is deceased, and deem the First Dewey Affidavit[1] and the Second Dewey Aff. (collectively, the “Dewey Affidavits”), admissible pursuant to rule 807 of the Federal Rules of Evidence, the residual hearsay exception; (ii) whether the Court should disregard the Second Dewey Aff., pursuant to rule 37(c) of the Federal Rules of Civil Procedure, providing sanctions for failures to disclose pursuant to rule 26 of the Federal Rules of Civil Procedure's requirements, because Plaintiff State of New Mexico untimely disclosed the Second Dewey Aff.; and (iii) whether the Court should deem authenticated pursuant to rule 902(11) of the Federal Rules of Evidence, providing for authentication of domestic business records through certification of the record's custodian, and admissible, pursuant to rule 803(g) of the Federal Rules of Evidence, the business records hearsay exception, Bank Records of “accounts belonging to” Defendants Balanced Legal Group and Pinnacle Law Center, P.C. Bank Records Motion ¶ 2, at 1. The Court concludes that: (i) Dewey is unavailable, and that the Dewey Affidavits do not meet rule 807's requirements and are inadmissible; (ii) the Second Dewey Aff.'s late disclosure is harmless, so the Court would allow its admission were it admissible; and (iii) the Court will deem the Bank Records authenticated, because Parwatikar Defendants, and Defendant Chad T. Pratt concede their authenticity, but the Court will not make other admissibility rulings. The Court accordingly grants in part and denies in part the Unavailability Motion, grants in part and denies in part the Bank Records Motion, and overrules the Objection.

         FACTUAL BACKGROUND

         The Court takes its facts from the Complaint for Violations of the New Mexico Mortgage Foreclosure Consultant Fraud Prevention Act[, N.M. Stat. Ann. §§ 47-15-1 to -8 (“MFCFPA”)], Mortgage Assistance Relief Services (MARS) Rule[, 12 C.F.R. § 1015 (“MARS Rule”)], the New Mexico Unfair Practices Act[, §§ 57-12-1 to -26 (“NMUPA”), ] and Petition for Injunctive Relief, filed February 22, 2017 (Doc. 1)(“Complaint”). The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that these facts are largely New Mexico's version of events.

         This action arises from the activities of Defendants Real Estate Law Center, P.C. and Erikson M. Davis, [2] of the Parwatikar Defendants, and of Mr. Pratt. See Complaint ¶¶ 9-15, at 4-5. Davis, Mr. Pratt, and Mr. Parwatikar are residents of the State of California, and Mr. Pratt and Mr. Parwatikar are attorneys licensed in the State of California. See Complaint ¶¶ 10-12, at 4-5. Davis has been disbarred in California. See Erikson McDonnel Davis #197841, The State Bar of California, http://members.calbar.ca.gov/fal/Licensee/Detail/197841 (last visited June 22, 2019). Neither Davis nor Mr. Pratt is licensed to practice law in New Mexico. See Complaint ¶¶ 10-11, at 4-5. Real Estate Law and Pinnacle Law are “Professional Corporation[s] registered in California.” Complaint ¶¶ 9, 13, at 4-5. Balanced Legal “is a California law firm owned and/or managed by Parwatikar.” Complaint ¶ 14, at 5.

         Mr. Pratt owned and managed Real Estate Law from September, 2011, to September, 2013. See Complaint ¶ 37, at 8. Davis “assumed ownership of” Real Estate Law in 2013. Complaint ¶ 20, at 6. Real Estate Law “has an operating agreement or partnership agreement with Parwatikar and Pinnacle, ” which Mr. Parwatikar owns, Complaint ¶ 38, at 8; see id. ¶ 21, at 6, and Real Estate Law pays Pinnacle Law eighty percent of the fees that Real Estate Law receives, see Complaint ¶ 21, at 6. Balanced Legal “uses” the same address -- 695 S. Vermont Ave., Los Angeles, California 90010 -- as Real Estate Law and Pinnacle Law. Complaint ¶ 34, at 8.

         Real Estate Law provides “legal representation, mortgage foreclosure consulting and mortgage modification services to homeowners in New Mexico although RELC [(Real Estate Law)] and its attorneys are not licensed to practice law in New Mexico.” Complaint ¶ 16, at 5. Real Estate Law “has made direct telephone solicitations to New Mexico consumers and has advertised its services in filing mass joinder lawsuits and mortgage modifications.” Complaint ¶ 17, at 5. Real Estate Law “has filed dozens of frivolous mass joinder lawsuits against a variety of banks, enticing hundreds of homeowners, including at least 23 New Mexico homeowners, to join these lawsuits as a way to obtain better loan terms.” Complaint ¶ 18, at 5. The Defendants “created the fiction of . . . mass action joinder lawsuits to disguise . . . advance fees as legal fees.” Complaint ¶ 23, at 6. Balanced Legal “offers legal services including loan modification and bankruptcy services” via a website “accessible to New Mexico consumers.” Complaint ¶ 33, at 7-8.

On its website, Balanced says, in close proximity to the words “LOWER YOUR MORTGAGE PAYMENTS TODAY!!” that “[w]e work with litigation firms that sue lenders in individual or mass tort cases. Potential results of lawsuits can include but not limited to the following: -- Principal reduction -- Monetary damages -- Lowered interest rates. Cancellation of the loan if severe fraud was present”.

Complaint ¶ 35, at 8 (emphasis and alteration in Complaint).

         PROCEDURAL BACKGROUND

         New Mexico alleges that: (i) the Defendants violated the MARS Rule by accepting advance payment for mortgage relief services, and/or Mr. Parwatikar and Pinnacle Law substantially assisted other Defendants' violations, see Complaint ¶¶ 77-85, at 18-19; (ii) the Defendants, willfully and in bad faith, violated the MFCFPA, by failing to provide required warnings, notices, and disclosures, by failing to give New Mexico homeowners twenty-four hours before signing attorney-client agreements, and by requiring advance payment for their services, see Complaint ¶¶ 86-101, at 19-22; and (iii) the Defendants knowingly engaged in unlawful conduct violating the NMUPA by requiring advance fees and monthly maintenance fees while filing sham lawsuits, by leading New Mexico consumers to believe that the Defendants performed valuable legal services when the Defendants filed sham lawsuits with no value for New Mexico consumers, and by allowing New Mexico consumers to believe that the Defendants will defend foreclosure lawsuits, see Complaint ¶¶ 102-08, at 22-23. New Mexico asks that the Court enjoin the Defendants from continuing such violations, see Complaint ¶¶ 109-11, G, at 23-24, and requests restitution, disgorgement, civil penalties, and costs as the MARS Rule, the MFCFPA, and the NMUPA permit, see Complaint ¶¶ (A)-(F), at 24.

         The Parwatikar Defendants and Mr. Pratt are the only Defendants with liability issues remaining in this case. On June 11, 2018, the Court entered a default judgment against Real Estate Law on all liability issues, “reserving the issues of relief, including disgorgement, restitution and civil penalties.” Default Judgment Against Real Estate Law Center at 1, filed June 11, 2018 (Doc. 75). See id. at 1-2. On November 5, 2018, the Honorable Laura Fashing, United States Magistrate Judge for the United States District Court for the District of New Mexico, recommended entering a default judgment against Davis on issues of liability, reserving for litigation the issues of relief, see Proposed Findings and Recommended Disposition at 4, filed November 5, 2018 (Doc. 91), and, on January 18, 2019, the Court adopted Magistrate Judge Fashing's recommendation, see Memorandum Opinion and Order Adopting the Magistrate Judge's Proposed Findings and Recommended Disposition at 2, 9, 2019 WL 259121, at *1, *4, filed January 18, 2019 (Doc. 106). In the Memorandum Opinion and Order, filed July 2, 2019 (Doc. 183)(“MOO”), the Court granted summary judgment in the Parwatikar Defendants' and Mr. Pratt's favor on New Mexico's NMUPA claims, injunctive relief claims, and specific theories based on: (i) Davis' alleged MARS Rule violations; (ii) Balanced Legal and Pinnacle Law's violation of the MARS Rule independent of Real Estate Law; (iii) Mr. Parwatikar's and Mr. Pratt's participation in a common enterprise with Real Estate Law, Balanced Legal, and Pinnacle Law; and (iv) Mr. Pratt's reckless or knowing violation of the MARS Rule, or willful violation of the MFCFPA. See MOO at 183-84, 2019 WL 2804575, at *68.

         1. The Unavailability Motion.

         New Mexico provides notice that one of the New Mexico consumers -- Dewey -- is deceased, and New Mexico seeks to qualify her “two sworn statements” -- the Dewey Affidavits -- executed before Dewey's death, as admissible evidence under rule 807. See Unavailability Motion at 1-2. New Mexico provides a Notice of Suggestion of Death, County of Santa Fe, State of New Mexico, First Judicial District Court (filed December 20, 2016), filed in federal court April 26, 2019 (Doc. 133), with its Unavailability Motion. See Unavailability Motion at 3.

         New Mexico explains that Dewey passed away on or about October 24, 2016, and that Dewey swore and affirmed the First Dewey Affidavit and the Second Dewey Aff. before notaries public on May 23, 2016, and June 6, 2016, respectively. See Unavailability Motion at 3. New Mexico argues that, according to rule 804(a), the Dewey Affidavits should be admitted because of Dewey's “unavailability and reliability under rule 807.” Unavailability Motion at 3. New Mexico asserts that Dewey based her Dewey Affidavits on Dewey's personal knowledge and her experiences interacting with the Defendants. See Unavailability Motion at 3. According to New Mexico, “[a]s the facts presented in the affidavits are based on Ms. Dewey's personal knowledge and her specific experience with Defendants, no other source can provide the same facts contained in the Dewey affidavits.” Unavailability Motion at 3. Further, New Mexico argues that the Dewey Affidavits' contents would not have been hearsay at trial if Dewey had been available and had testified to them. See Unavailability Motion at 3.

         New Mexico asserts that there are five requirements that determine whether evidence is admissible under rule 807: trustworthiness, materiality, probative importance, the interests of justice, and notice. See Unavailability Motion at 3 (citing Lopez v. Miller, 915 F.Supp.2d 373, 423 (E.D.N.Y. 2013)(Garaufis, J.)). New Mexico acknowledges that the United States Court of Appeals for the Tenth Circuit has held that rule 807 should be used only in “extraordinary circumstances.” Unavailability Motion at 3 (citing United States v. Harrison, 296 F.3d 994, 1004 (10th Cir. 2002)). New Mexico argues that “circumstantial guarantees of trustworthiness, ” similar to hearsay exceptions under rules 803 and 804, adhere to the Dewey Affidavits, namely that the Dewey Affidavits resemble a recorded recollection and/or former testimony. See Unavailability Motion at 4. According to New Mexico, “[t]he affidavits serve as records of matters that Ms. Dewey knew about and she made these records when the facts of this matter were fresh in her memory. See Fed. R. Evid. 803(5)(A), (B). Moreover, the sworn statements ‘accurately reflect the witness's knowledge.' Fed.R.Evid. 803(5)(C).” Unavailability Motion at 4. New Mexico argues that the Dewey Affidavits are similar to former testimony, admissible under rule 804, because, despite Dewey's expectation of and willingness to testify at trial, she cannot do so because of her death. See Unavailability Motion at 4 (citing Fed. R. Evid 804(a)(4)). New Mexico argues that Dewey's willingness to provide testimony at trial increases the probability that the Dewey Affidavits are truthful. See Unavailability Motion at 4. New Mexico asserts that Dewey swore the Dewey Affidavits' statements are true, and swore to the Dewey Affidavits before New Mexico notaries public, thereby satisfying rule 807(a)(1)'s trustworthiness requirement. See Unavailability Motion at 4.

         New Mexico asserts that it intends to use the Dewey Affidavits as evidence of multiple material facts, thereby satisfying rule 807(a)(2)'s requirement that the evidence be material. See Unavailability Motion at 4. New Mexico asserts that the Dewey Affidavits evidence that Dewey was a victim of the Defendants' scheme within New Mexico and contain a story similar to the twenty-three other New Mexico consumers' accounts regarding the procedures that the Defendants use. See Unavailability Motion at 4.

         New Mexico asserts that it has used extensive efforts to obtain evidence that would be more probative than the Dewey Affidavits on the points for which it offers the Dewey Affidavits, but that it cannot obtain that evidence. See Unavailability Motion at 5. New Mexico asserts that the Defendants did not provide New Mexico with consumer records, so the records of “each transaction, each contract, and the correspondence between Defendants and the consumers had to be obtained from other sources.” Unavailability Motion at 5. New Mexico argues that the quit-or-pay letter[3] that the Defendants sent to Dewey, which New Mexico states it includes as an exhibit to the Dewey Affidavits, demonstrates that: (i) the Defendants charged up-front retainer fees in violation of federal and state laws; and (ii) the Defendants would not perform services without first having their retainer fee paid in full. See Unavailability Motion at 5.

         New Mexico argues that admitting the Dewey Affidavits will serve the rule 807's purposes and, pursuant to rule 807(a)(4), further the interests of justice. See Unavailability Motion at 5. New Mexico asserts that admitting the Dewey Affidavits furthers the interests of justice, because of the Dewey Affidavits' statements' trustworthiness and reliability, and because the stories and email communications that the New Mexico consumers independently provided corroborate the statements. See Unavailability Motion at 5. New Mexico also argues that it would be unjust to prevent Dewey's victimization from being presented solely on the basis that she is no longer alive to tell it. See Unavailability Motion at 5. New Mexico “requests an order of this Court establishing the unavailability of Dewey and the admissibility of her sworn statements.” Unavailability Motion at 5.

         2. The Unavailability Response.

         The Parwatikar Defendants respond. See Defendant Parwatikar's Response to Plaintiff's Motion to Provide Notice Under Rule 807 and to Establish Unavailability of Witness at 1-4, filed May 10, 2019 (Doc. 139)(“Unavailability Response”). The Parwatikar Defendants oppose the Unavailability Motion. See Unavailability Response at 1. They summarize the Unavailability Motion, stating that New Mexico is seeking an order to establish Dewey as unavailable, and to admit the Dewey Affidavit and the attached exhibits. See Unavailability Response at 2 (citing Unavailability Motion at 1, 6). The Parwatikar Defendants note that New Mexico does not attach to the Unavailability Motion the First Dewey Affidavit, the Second Dewey Aff., or any of the exhibits that New Mexico wants to admit. See Unavailability Response at 2. Further, the Parwatikar Defendants assert that New Mexico does not provide Bates numbers for the Dewey Affidavits and, consequently, the Parwatikar Defendants have been unable to locate the Second Dewey Aff., despite conducting a “reasonable search.” Unavailability Response at 2. The Parwatikar Defendants assert that the documents which New Mexico identifies with a Bates number do not appear to be attached to any affidavit and seem to refer to documents concerning: (i) a loan associated with a Jose Cedeno; and (ii) documents related to an Arlena Dickerson. See Unavailability Response at 2. The Parwatikar Defendants also note that the Dewey Affidavit to which they have access has a Bates number more than two thousand pages after the exhibits that New Mexico's initial disclosures reference. See Unavailability Response at 2. According to the Parwatikar Defendants, the “Plaintiff does not quote the Dewey affidavits in its Motion or even provide a summary of their contents.” Unavailability Response at 2.

         The Parwatikar Defendants assert that New Mexico concedes that none of the exceptions under rules 803 and 804 apply, and invokes rule 807 instead. See Unavailability Response at 2. The Parwatikar Defendants contend that rule 807 requires “‘reasonable notice'” of the “‘intent to offer' hearsay evidence” and the “‘particulars'” of the evidence so that the opposing party “‘has a fair opportunity'” to respond to it. Unavailability Response at 2 (emphasis omitted)(quoting Fed.R.Evid. 807(b)). The Parwatikar Defendants argue that New Mexico did not meet this requirement, because the Parwatikar Defendants cannot possibly respond to the admissibility of documents that they cannot identify with reasonable effort. See Unavailability Response at 2 (citing Fed.R.Evid. 807(b)). Further, the Parwatikar Defendants assert that, to make an “‘informed ruling, '” the Court needs more context about the evidence that New Mexico is trying to admit. Unavailability Response at 2 (quoting United States v. Goxcon-Chagal, No. CR 11-2002 JB, 2012 WL 3249473, at *7 (D.N.M. Aug. 4, 2012)(Browning, J.), and citing Horne v. United Parcel Serv., No. CIV 10-312 JH/GBW, 2012 WL 13013065, at *3 (D.N.M. March 13, 2012)(Herrera, J.)).

         The Parwatikar Defendants argue that, even if New Mexico has provided sufficient notice, rule 807 is reserved for the “‘rarest of cases.'” Unavailability Response at 3 (quoting United States v. DeVillio, 983 F.2d 1185, 1190 (2d Cir. 1993)). The Parwatikar Defendants argue that New Mexico must show: (i) that the documents have “‘equivalent circumstantial guarantees of trustworthiness' as evidence that satisfies Rules 803 or 804”; (ii) that the documents are material; (iii) that the documents are more probative than any other evidence obtainable with reasonable efforts; and (iv) that admitting the documents will serve the “‘interests of justice.'” Unavailability Response at 3 (quoting Fed.R.Evid. 807). The Parwatikar Defendants argue that New Mexico has not shown “‘exceptional circumstances'” which allow admission even though the documents do not fall under any of the rules 803 and 804 exceptions. Unavailability Response at 3 (quoting United States v. Trujillo, 136 F.3d 1388, 1395-96 (10th Cir. 1998)). The Parwatikar Defendants argue that, even though the Dewey Affidavits are allegedly sworn, the criteria for admissibility are not met, because New Mexico has not provided any explanation: (i) why it would have been unable to depose Dewey; (ii) why it could not obtain other probative evidence while procuring the Dewey Affidavits; or (iii) how similarly situated Dewey is to the other consumers such that her statements might be material even though she has died. See Unavailability Response at 3.

         The Parwatikar Defendants also argue that New Mexico filed the Unavailability Motion prematurely, because dispositive motions are pending with the Court. See Unavailability Response at 3 (citing Couture v. Bd. of Educ. of Albuquerque Pub. Sch., No. CIV 05-0972 JH/DJS, 2009 WL 10708112, at *9 (D.N.M. March 30, 2009)(Herrera, J.); Defendant Parwatikar's Response to Plaintiff's Pretrial Motion to Provide Notice of Plaintiff's Intent to Offer Bank Records, filed May 10, 2019 (Doc. 138)(“Bank Records Response”)). The Parwatikar Defendants argue that rule 807 requires a document to be “‘offered as evidence of a material fact, '” and that the Parwatikar Defendants cannot discern which facts are material without knowing which parties and counts may proceed to trial. Unavailability Response at 4 (quoting Fed.R.Evid. 807(a)(2)). The Parwatikar Defendants reserve the right to object later to New Mexico's attempts to offer the Dewey Affidavits into evidence. See Unavailability Response at 4 (citing United States v. Crespin, 16 F.3d 417 (10th Cir. 1993)). The Parwatikar Defendants ask that, if the Court does not deny the Unavailability Motion on other grounds, it wait to consider the merits until it has resolved the pending dispositive motions.[4] See Unavailability Response at 4 (citing Couture v. Bd. of Educ. of Albuquerque Pub. Sch., 2009 WL 10708112, at *9).

         3. Notice.

         New Mexico provides a Plaintiff's Notice of Correction to Motion to Provide Notice Under Rule 807 and to Establish Unavailability of Witness, filed May 24, 2019 (Doc. 143)(“Notice”). New Mexico explains: “In the Motion, Plaintiff inadvertently referenced incorrect Bates numbering for the May 23, 2016, Caroline A. Dewey Affidavit and exhibits.” Notice ¶ 2, at 1. New Mexico identifies the correct Bates numbers and asserts that it provided the First Dewey Affidavit in its initial disclosures. See Notice ¶¶ 3-4, at 1. New Mexico explains: “Plaintiff also inadvertently did not provide Defendants with an additional affidavit from Caroline A. Dewey, dated June 6, 2016, which identifies an email Ms. Dewey received after the first affidavit was completed.” Notice ¶ 6, at 2. New Mexico attaches the Second Dewey Aff. to the Notice. See Notice ¶ 6, at 2. See generally Second Dewey Aff.

         4. The Unavailability Reply.

         New Mexico replies. See Plaintiff's Reply in Support of Plaintiff's Pretrial Motion to Provide Notice Under Rule 807 and to Establish Unavailability of Witness at 1-3, filed May 24, 2019 (Doc. 144)(“Unavailability Reply”). Preliminarily, New Mexico notes that Mr. Pratt does not respond. See Unavailability Reply at 1. New Mexico notes that the Parwatikar Defendants do not object to New Mexico's request that the Court issue an order establishing Dewey's unavailability. See Unavailability Reply ¶ 2, at 1. New Mexico acknowledges that it used the incorrect Bates numbers to reference the Dewey Affidavit and that it mistakenly failed to provide the Defendants with a copy of the Second Dewey Aff. as part of New Mexico's initial disclosures. See Unavailability Reply ¶¶ 4-6, at 2. New Mexico notes that it provided the Notice. See Unavailability Reply ¶ 5, at 2. New Mexico explains that, in the Notice, it provides the correct Bates numbers for the Dewey Affidavits and attaches the Second Dewey Aff. to the Notice. See Unavailability Reply ¶¶ 5, 7, at 2.

         New Mexico argues that it has complied with rule 807 by giving the Parwatikar Defendants and Mr. Pratt reasonable notice of its intent to offer the Dewey Affidavits as evidence, and by providing “the particulars of the evidence it intends to offer.” Unavailability Reply ¶ 10, at 2. New Mexico agrees to the Parwatikar Defendants' request that the Court postpone ruling on the Dewey Affidavits' admissibility until after the Court resolves the pending dispositive motions. See Unavailability Reply ¶ 12, at 2. New Mexico asks that the Court acknowledge that New Mexico has provided notice in accordance with rule 807(b) and that Dewey is unavailable. See Unavailability Reply at 3.

         5. The Objection.

         The Parwatikar Defendants object to New Mexico's Notice. See Objection at 1-2. The Parwatikar Defendants assert that they filed their Unavailability Response to the Unavailability Motion on May 10, 2019, and that, two weeks later, on the last business day before the scheduled May 28, 2019, hearing, New Mexico filed its Notice and its Unavailability Reply. See Objection at 2. The Parwatikar Defendants state that New Mexico changed all the Bates numbers that the Parwatikar Defendants had taken from the Unavailability Motion to formulate their Unavailability Response. See Objection at 2. Further, the Parwatikar Defendants assert that New Mexico had the Second Dewey Aff. for almost three years, but that New Mexico first disclosed it with the Notice. See Objection at 2. The Parwatikar Defendants argue that the Notice substantially alters the Unavailability Motion and does not provide the Parwatikar Defendants with an adequate opportunity to respond. See Objection at 2.

         The Parwatikar Defendants argue that the Second Dewey Aff. is “so untimely disclosed that it must be excluded.” Objection at 2 (citing Fed.R.Civ.P. 37(c)(1)). The Parwatikar Defendants assert that discovery closed on January 4, 2019. See Objection at 2. The Parwatikar Defendants contend that, when New Mexico requested an extended deadline for discovery, asking the Court for an extension until May 24, 2019, the Parwatikar Defendants opposed the requested extension and the Court subsequently deemed discovery closed as of January 9, 2019. See Objection at 2. The Parwatikar Defendant assert that New Mexico has continued to submit untimely disclosures, including supplemented discovery responses that were submitted on January 25, 2019, “without any explanation as to why the information could not have been provided earlier.” Objection at 3. The Parwatikar Defendants assert that New Mexico supplemented its responses again, without explanation, following the parties' settlement conference. See Objection at 3. Further, the Parwatikar Defendants argue that, with the Notice, New Mexico has again produced untimely materials. See Objection at 3.

         The Parwatikar Defendants argue that New Mexico's pattern of untimely filings and disclosures has impacted the Parwatikar Defendants' ability to: (i) prepare for the settlement conference on March 25, 2019; (ii) present and anticipate defenses to the Defendant Deepak S. Parwatikar's Motion for Summary Judgment, filed April 25, 2019 (Doc. 132)(“MSJ”); (iii) prepare for the May 28, 2019, hearing on the MSJ; and (iv) prepare for the trial set for July 8, 2019. Objection at 3. The Parwatikar Defendants argue that the Court has authority to disregard the untimely disclosures and filings, or otherwise prohibit their use, and asks that the Court exercise this authority. See Objection at 3 (citing Fed.R.Civ.P. 37(c)(1); Lane v. Page, 250 F.R.D. 634, 642 (D.N.M. 2007)(Browning, J.)).

         6. The Bank Records Motion.

         New Mexico files the Bank Records Motion to notify the Parwatikar Defendants and Mr. Pratt “of its intent to offer the bank records described below as evidence at trial.” Bank Records Motion at 1. New Mexico describes that it provided the Parwatikar Defendants and Mr. Pratt the Bank Records, “bates-numbered NMOAG 003759 to 010399, ” on June 18, 2018. Bank Records Motion ¶ 1, at 1. According to New Mexico, the Bank Records consist of records regarding “accounts belonging to” Balanced Legal and Pinnacle Law. Bank Records Motion ¶ 2, at 1. New Mexico explains that it “intends to offer the evidence described above at trial under Rule 803(6) as records of a regularly conducted activity and to authenticate the records by certification that complies with Rule 902(11) in lieu of live testimony.”[5] Bank Records Motion ¶ 3, at 2 (citing Fed.R.Evid. 803(6)(D), 902(11)). New Mexico explains that rule 803(6)(D) requires a showing, by custodian testimony or by certification complying with rule 902(11), that rule 803(6)(D)'s requirements are satisfied. See Bank Records Motion ¶ 4, at 2. New Mexico attaches to the Bank Records Motion the custodian's Affidavit of Bank of America Bank Office and/or Custodian of Records (executed April 27, 2018), filed April 26, 2019 (Doc. 134)(“Certification”), see Bank Records Motion ¶ 5, at 2, and, because rule 902(11), “requires reasonable notice of the intent to offer certified domestic records of a regularly conducted activity to the adverse party, ” Bank Records Motion ¶ 6, at 2 (citing Fed.R.Evid. 902(11)), New Mexico provides the Parwatikar Defendants and Mr. Pratt the Bank Records Motion as notice, see Bank Records Motion ¶ 6, at 2.

         New Mexico argues that the Bank Records are records of a regularly conducted business activity, as the Certification demonstrates and certifies. See Bank Records Motion at 3. New Mexico summarizes:

The custodian's affidavit states that the records were made at the time by someone with knowledge; that the records were kept in the course of the regularly conducted activity of the bank; and that the making of the record was a regular practice of the bank. Because the custodian shows that the records meet the requirements of Rule 803(6)(A)-(C) in the attached certification, because reasonable notice is hereby given to Defendants, and because the records and certification have been made available for inspection by Defendants, the Bank of America Records satisfy the requirements and are admissible as an exception to the hearsay rule.

         Bank Records Motion at 3. New Mexico contends that the Bank Records are not duplicative and are relevant, because they offer evidence of the Defendants' common enterprise. See Bank Records Motion at 3. New Mexico requests “that this Court enter an order granting its motion to admit the Bank of America Records as provided herein under Rule 902(11) and for such other relief as the Court deems proper.” Bank Records Motion at 3.

         In the Certification, Tia Cooper, “a duly authorized bank officer and/or custodian of the records of Bank of America N.A., ” swears:

The records produced herewith by Bank of America, N.A. are original documents or are true copies of records of a regularly conducted banking activity that:
a.) Were made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
b.) Were made and kept in the course of regularly conducted banking activity by Bank of America, N.A. personnel or by persons ...

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