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MTGLQ Investors, LP v. Wellington

United States District Court, D. New Mexico

August 29, 2019

MTGLQ INVESTORS, LP, Plaintiff,
v.
MONICA L. WELLINGTON, THE MONICA L. WELLINGTON DECLARATION OF TRUST DATED DECEMBER 28, 2007, ALTURA VILLAGE HOMEOWNERS' ASSOCIATION, INC., JP MORGAN CHASE BANK, N.A., Defendants.

          ORDER DENYING MOTION FOR SANCTIONS

          LAURA FASHING UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on defendant Monica Wellington's Motion for Sanctions for Failure to Obey Order, Failure to Make Disclosures, and Rule 26(g) Violations, filed on January 24, 2019. Doc. 146. Plaintiff MTGLQ Investors, LP (“MTGLQ”) filed a response (Doc. 150), and Ms. Wellington filed a reply (Doc. 152). Having reviewed the briefing and the applicable law, the Court finds the motion is not well-taken and it will be DENIED.

         A. Motion to Reconsider

         Ms. Wellington asks the Court to reconsider its Order Granting in Part Monica Wellington's Motion to Compel Disclosures (Doc. 128). Doc. 146 at 1. Arguments revisiting the issues addressed in that order are interspersed throughout her motion. The Court finds Ms. Wellington's request to reconsider its prior ruling is not well taken and it will be denied.

         “Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Courts should not grant relief where the movant seeks only to “revisit issues already addressed or advance arguments that could have been raised in prior briefing.” Id.

         Ms. Wellington fails to point to any change in controlling law, new evidence, or clear error. Ms. Wellington argues that the Court should reconsider its order because “the Court's order on the motion [to compel] failed to even discuss anything about the lack of witness disclosures concerning the MERS release and or/assignment allegations in plaintiff's Complaint.” Doc. 146 at 3. Ms. Wellington also states that the Court failed to consider her request to strike portions of the complaint. Id. Neither of these issues were raised in Ms. Wellington's Motion to Compel. See Doc. 99. Ms. Wellington raised these issues for the first time in her reply to the motion to compel. Doc. 105 at 3-4. New issues raised for the first time in a reply brief will not be considered. See, e.g., Plotner v. AT&T Corp., 224 F.3d 1161, 1175 (10th Cir. 2000) (citing Tenth Circuit's “general rule that we do not consider issues raised for the first time in a reply brief”); State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (issue waived if not raised in opening brief); Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 724 (10th Cir. 1993) (generally, issues raised for first time in reply brief will not be considered). Because these issues were not properly raised in the motion to compel, the Court did not consider them, and therefore cannot “reconsider” them here. Finally, Ms. Wellington urges the Court to reconsider its ruling on the Rule 26(g) sanctions she requested in her motion to compel. Doc. 146 at 12-13. Ms. Wellington fails to point to any change in controlling law, new evidence, or clear error. Ms. Wellington seeks only to “revisit issues already addressed or advance arguments that could have been raised in prior briefing.” Servants of the Paraclete, 204 F.3d at 1012. Ms. Wellington provides no basis for the Court to reconsider its prior order and the Court declines to do so.

         B. Sanctions for Failing to Comply with Court's Order

         Next, Ms. Wellington asks the Court to impose sanctions on MTGLQ or its counsel for failure to comply with the Court's December 6, 2018 order. Doc. 146 at 1. On August 20, 2018, Ms. Wellington filed a Motion to Compel Disclosures asking the Court to order MTGLQ to disclose “names and contact information of known witnesses.” Doc. 99 at 1-2. In its response to the motion to compel, MTGLQ provided for the first time a list of employees for Rushmore Loan Management Services, LLC-its loan servicer and agent-that it intends to call as its

corporate witness or witnesses to testify regarding Rushmore's and Plaintiff's relationship, Rushmore's servicing of Defendant Monica Wellington's loan, including any and all workout and loan modification efforts related to the loan, testify to the Note, Mortgage, default, amounts due, as well as all allegations made in the Complaint or any pleading, along with their process in maintaining original documents.

Doc. 102 at 2-3. On December 6, 2018, the Court granted Ms. Wellington's Motion to Compel Disclosures (Doc. 99) in part and ordered MTGLQ's counsel, Elizabeth Friedenstein, to either inform Ms. Wellington if she served as counsel for the newly disclosed Rushmore witnesses, or to provide the telephone numbers for these witnesses within seven days of the order. Doc. 128 at 3. Ms. Wellington argues that as of January 24, 2019, the date she filed her motion to compel, she had “not received any such notification.” Docs. 146 at 5, 146-1 (Declaration of Monica Wellington). The Court finds this statement is inaccurate, and further finds that any delay in complying with the Court's order is harmless.

         Rule 26(a) requires a party to provide the other parties “the name and, if known, the address and telephone number of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” Fed.R.Civ.P. 26(a)(1)(A)(i). Disclosures made under Rule 26(a) must be supplemented “in a timely manner” or “as ordered by the court.” Fed.R.Civ.P. 26(e).

         Rule 37 allows the Court to sanction a party who “fails to provide information or identify a witness as required by Rule 26(a) or (e) . . .unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). “The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court.” Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). “A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose.” Id. However, the Court should consider the following factors: “(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the [non-disclosing] party's bad faith or willfulness.” Id. The Court may also impose sanctions for failure to comply with its discovery orders. See Fed. R. Civ. P. 37(b)(2)(A).

         Ms. Wellington states that Ms. Friedenstein failed to either notify her as to whether she served as counsel for the newly disclosed witnesses, or to provide phone numbers for the witnesses, in violation of the Court's order. Docs. 146 at 5, 146-1. The Court ordered Ms. Friedenstein to provide this information to Ms. Wellington by December 13, 2019. See Doc. 128 at 3. Ms. Friedenstein does not dispute that she failed to comply with the letter of the Court's order. See Doc. 150 at 3-4. ...


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