Calon v. Bank of Am.
| Decision Date | 18 September 2017 |
| Docket Number | No. 14-00913-CV-W-FJG,14-00913-CV-W-FJG |
| Parties | JOHN CALON, Plaintiff, v. BANK OF AMERICA, ET AL., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Currently pending before the Court is Plaintiff's Motion for Extension of Time to Complete Discovery (Doc. # 98); Plaintiff's Motion to Compel (Doc. # 99); Bank of America N.A. ("BANA's") Motion for Summary Judgment (Doc. # 101) and plaintiff's Motions for Protective Order (Docs. # 105, 107).
On December 9, 2014, plaintiff filed his initial complaint asserting five causes of action against Bank of America Corporation ("BAC"), Bank of America Corporation, N.A. ("BANA") and Brian Moynihan (Bank of America's CEO). On June 29, 2015, the Court granted in part and denied in part BANA's Motion to Dismiss1. The Court directed plaintiff to file a First Amended Complaint on or before July 15, 2015. When plaintiff did not file his Amended Complaint on or before July 15, 2015, the Court issued an Order to Show Cause Order on July 22, 2015, directing plaintiff to show cause as to why the matter should not be dismissed due to failure to comply with the Court's earlier order.In the First Amended Complaint, plaintiff was directed to list in separate counts the claims he was asserting against the various defendants. On July 24, 2015, plaintiff filed a forty-two page, three-hundred thirty-five paragraph First Amended Complaint in which he asserts twenty counts against BANA. On May 17, 2016, the Court dismissed five of plaintiff's claims. BANA filed a Motion for Summary Judgment on November 21, 2016 (Doc. # 101). Plaintiff's response was due on or before December 15, 2016. Plaintiff failed to file any response to the summary judgment motion.
Plaintiff has moved for a Motion for Extension of Time to Complete Discovery (Doc. # 98). In his Motion plaintiff requests an additional ninety days to complete discovery. Plaintiff states that he recently learned that the defendants had illegally accessed sealed court records, medical records and private financial information and that the defendant sent employees to plaintiff's property to harass and intimidate him after he paid off his loan. Plaintiff states that he is seeking information so that he may file criminal charges against these individuals. Plaintiff then states that defendant continues to withhold data, witnesses, audio and other items that plaintiff is entitled to. BANA opposes the motion, stating that plaintiff's motion is untimely and filed after the close of discovery. BANA also states that it has fully responded to plaintiff's written discovery. BANA also notes that the Court previously extended the discovery in this case from November 19, 2015 until October 24, 2016. During these eleven months, plaintiff failed to conduct any additional discovery. Finally, BANA states that despite seeking an additional ninety days to complete discovery, plaintiff fails to state or describe what additional information he needs. The Court agrees and finds that plaintiff's request foradditional time to complete discovery is both untimely and without any basis. As noted above, the Court previously granted plaintiff an extension of time to complete discovery, but plaintiff did not utilize this time to conduct any discovery. Accordingly, because plaintiff's motion was untimely and because he failed to show good cause for extending the deadline, the Court hereby DENIES Plaintiff's Motion for an Extension of Time to Complete Discovery (Doc. # 98).
Plaintiff in his Motion to Compel requests that the Court order defendant to turn over a readable copy of his deposition. Plaintiff complains that the copy that he was provided contained type which was too small for him to read. In opposition, defendant states that the Motion should be denied because plaintiff failed to comply with Local Rule 37.1 and also because the motion is moot. BANA states that the court reporter sent plaintiff a copy of the transcript and defendant also mailed plaintiff a CD which contained both a paper transcript as well as the video of the deposition. Plaintiff filed no reply suggestions refuting defendant's statements or indicating that he had not received the CD. Accordingly, because it would appear that plaintiff has received the relief he requested, the Court hereby DENIES AS MOOT plaintiff's Motion to Compel (Doc. # 99).
In his Motion for a Protective Order plaintiff states that he recently learned that BANA and their attorneys illegally accessed or had in their possession medical records, sealed court records and private financial information. Plaintiff also states that BANA sent Bank of America employees to his property to harass and intimidate him after hefiled this action. Plaintiff also claims that BANA failed to give him enough notice of his deposition and has now refused to provide him with a copy of his deposition. Plaintiff is seeking an Order that BANA be ordered not to disclose or otherwise discuss the deposition and that the deposition be stricken from the record due to the privileged nature of the material and the manner in which it was obtained.
BANA states that the motion should be denied because plaintiff failed to comply with Fed.R.Civ.P. 26(c) or Local Rule 37.1(a). Additionally, BANA argues that the motion is untimely as it was filed over three months after his deposition was taken. BANA states that Fed.R.Civ.P. 32(a)(5) states that a deposition may not be precluded unless the party seeking preclusion promptly moves for a protective order. Thus, BANA argues that this motion does not apply because plaintiff waited until after his deposition was taken to challenge it. Similarly, BANA states that plaintiff consented to the time, date and location of his deposition. BANA states that plaintiff was contacted on October 18, 2016 to determine his availability. Plaintiff indicated that he was available on October 24, 2016 and the parties agreed during the phone call that plaintiff's deposition would be taken at the Courthouse on that date. BANA states that plaintiff should not be allowed to argue that the notice was insufficient, when he agreed to the date, place and time for the deposition.
In his second motion for a protective Order, plaintiff requests that the Court order BANA's counsel to tell their client not to contact plaintiff. BANA states that the Motion should be denied because plaintiff failed to comply with Fed.R.Civ.P. 26(c) or Local Rule 37.1(a) and also because plaintiff has only made vague, general conclusory allegations and has failed to provide any evidence that he has received coercivemailings from defendant.
The Court agrees and finds that there is no basis for granting plaintiff's Motions for Protective Orders. The Court finds that plaintiff failed to comply with the Local Rules regarding discovery disputes, the motions are untimely and are unsupported and make only vague general assertions of perceived improprieties. Accordingly, the Court hereby DENIES plaintiff's Motions for Protective Orders (Docs. 105,107).
A moving party is entitled to summary judgment on a claim only if there is a showing that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party meets this requirement, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. 242, 248 (1986). In Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the Court emphasized that the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts" in order to establish a genuine issue of fact sufficient to warrant trial. In reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonablydrawn from the evidence. Matsushia, 475 U.S. 574, 588; Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984), cert. denied, 470 U.S. 1057 (1985).
Western District of Missouri Local Rule 56.1 states in part:
Plaintiff failed to file any response to defendant's Motion for Summary Judgment. Plaintiff does however refer to the Summary Judgment motion in his Reply Suggestions in Support of his Motion for a Protective Order (Doc. # 110, p. 6). In his reply suggestions, plaintiff states that the Court should deny the summary judgment motion "out of hand" and that defendant is continuing to refuse to cooperate with plaintiff's discovery and has refused to identify witnesses and records. Plaintiff also argues that defendant has failed to provide him with a copy of the video and audio from his deposition. However, other than these general arguments, plaintiff has failed to respond to either the specific factual statements in the motion for...
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