United States District Court, W.D. Pennsylvania
JAMES C. FOCHT and KAREN FOCHT, Plaintiffs,
NATIONSTAR MORTGAGE, LLC, d/b/a MR. COOPER, as successor in interest to SETERUS, INC. Defendant.
GIBSON UNITED STATES DISTRICT JUDGE.
the Court are Plaintiffs James and Karen Focht's Motion
for Sanctions (ECF No. 31) and Itemization of Attorneys'
Fees and Costs Related to Motion to Compel Discovery and
Impose Sanctions. (ECF No. 29.) Defendant Nationstar
Mortgage, LLC filed a response to both motions (ECF Nos. 30,
32) and Plaintiffs filed a reply. (ECF No. 33.) Accordingly,
the Motion is ripe for disposition. For the reasons that
follow, the Court will grant Plaintiffs' Request for
Attorneys' fees in part and deny Plaintiffs' Motion
case arises from a dispute regarding a mortgage on a home
that Plaintiffs own in Tyrone, Pennsylvania. (ECF No. 1-3
¶ 3.) Seterus, Inc. was the mortgage-servicing company
for Plaintiffs' mortgage. (Id. ¶¶
4-6.) Plaintiffs allege that Seterus-and its successor in
interest, Nationstar Mortgage, LLC,  doing business as Mr. Cooper
(collectively "Defendant") -violated federal and
Pennsylvania law by failing to accept payment to satisfy the
mortgage and failing to adequately communicate with the
Plaintiffs. (ECF No. 1-3 ¶¶ 40-100.)
The Fee Dispute
dispute stems from Plaintiffs' prior Motion to
Compel/Motion for Sanctions (ECF No. 25), which this Court
granted in part and awarded attorney's fees.
(See ECF No. 28.) Plaintiffs' counsel filed a
Supplement, itemizing their attorney's fees required to
prepare the motion and seeks a total of $3, 227.50 (6.15
hours, billed at $250.00 per hour for $1537.50; 4.1 hours,
billed at $400.00 per hour for $1640). (ECF No. 29.)
The Motion for Sanctions
second dispute arises from Defendant's alleged failure to
respond to Plaintiffs' interrogatories. (ECF No. 31.) On
February 5, 2019, Plaintiffs served interrogatories on
Defendant, and Defendant responded on June 12, 2019, along
with objections. (Id. at ¶¶ 1-2.) In its
response, Defendant did not disclose any potential individual
fact witnesses; on June 17, 2019, Plaintiffs filed their
first Motion to Compel in reply. (Id. at
¶¶ 3-4.) Defendant amended its responses to
identify Edward Hyne,  a record custodian, and later amended its
responses a second time to include Stephanie Colgrove.
(Id. at ¶¶ 7, 9, 10.)
the parties took depositions on August 8, 2019, Plaintiffs
believed that most of Defendant's employees were
terminated following its merger with Nationstar; during the
deposition of Mr. Hyne, Plaintiffs learned that several of
Defendant's employees were still employed with Defendant,
rather than having been terminated following the merger.
(Id. at ¶¶ 13-16.) Plaintiffs now wish to
take the depositions of these employees, Stephanie Colgrove,
Kayla Heady, Hyuen Nguyen, and Jennifer Moorman (the
"Employees"), or bar Defendant from introducing
their testimony at trial.
Employees are located at Defendant's Beaverton, Oregon
office, and Defendant has offered to make them available by
telephone. (ECF No. 32 at ¶ 22.) At the parties'
post-discovery status conference, the Parties and the Court
discussed the issue (see ECF No. 34), and the
parties agreed that conducting depositions via
videoconference would be appropriate.
Court will address the parties' arguments in turn.
provides the mechanism to compel discovery from a person or
party who refuses to provide discovery. See Fed R.
Civ. P. 37. Rule 37 allows this Court to levy sanctions on a
party who fails to disclose, supplement, or "provide
information or identify a witness as required by Rule 26(a)
or (e)." Id. Rule 37(c)(1). When a party fails
to provide that information, the Court may sanction that
party by barring the testimony of the witness, unless the
failure to disclose was either "substantially
justified" or "harmless." Id. The
Court may also order other sanctions, including requiring the
noncompliant party to pay attorneys' fees, inform the
jury of that party's failure, or impose "other
appropriate sanctions," including those under Rule
determining whether to preclude the testimony of witnesses
that a party fails to disclose, this Court considers several
factors: (1) the prejudice to the surprised party; (2) the
ability of the surprised party to cure that prejudice; (3)
the disruption of trial caused by a waiver of the rule
barring the calling of an unlisted witness; and (4)
willfulness or bad faith in the withholding party's
failure to comply with the Court's order. Smith v.
Allstate Ins. Co.,912 F.Supp.2d 242, 249 (W.D. Pa.
2012) (citing Meyers v. Penny-pack WoodsHome