United States District Court, D. Arizona
Bonnie T. Ramos, et al., Plaintiffs,
Wells Fargo Home Mortgage, et al., Defendants.
MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE
before the Court are the following motions: the Motion for
Reconsideration of Defendant Wells Fargo Home Mortgage (Doc.
78); the Motions in Limine of Defendant Wells Fargo Home
Mortgage (Docs. 94, 95) and the Motion for Sanctions of
Defendant Wells Fargo Home Mortgage (Doc. 87). The Court will
also address the arguments raised by the parties in their
proposed Final Pretrial Order regarding the issue of waiver
of the right to a jury trial. Here is the resolution of the
motions and issues: The Motion for Sanctions is granted. The
Motion for Reconsideration is denied. Plaintiff has waived
her right to a jury trial and this case will therefore be
tried before the Court. The Motion in Limine regarding
adjudicated claims is granted in part and denied in part. And
finally, the Motion in Limine regarding adjudicated claims is
denied as moot.
both parties and the Court are familiar with the background
of the various motions here, a detailed factual summary is
not necessary at this point.
Wells Fargo's Motion for Sanctions
Rule of Civil Procedure 26 requires parties to provide to
opposing parties- without awaiting a discovery
request-“the name . . . 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.” Fed.R.Civ.P. 26(a)(1)(A)(i). The
rule also requires disclosure of “a copy-or a
description by category and location-of all documents,
electronically stored information, and tangible things that
the disclosing party has in its possession, custody, or
control and may use to support its claims or defenses.”
Id. (ii). Parties are excepted from the disclosure
requirements if they plan to only use the individual or
information for impeachment purposes. Id. (i)-(ii).
26(e) requires parties to supplement those disclosures
“in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during
the discovery process or in writing.” Id.
Rule of Civil Procedure 37(c)(1) provides that “[i]f a
party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Rule 37(c)
therefore establishes an “automatic sanction to provide
a strong inducement for disclosure of material.”
Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259
F.3d 1101, 1106 (9th Cir. 2001) (alterations and quotation
marks omitted). The rule represents a “broadening of
the sanctioning power” and district courts have wide
discretion to issue sanctions under it. R&R Sails,
Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240, 1245
(9th Cir. 2012) (citing Yeti by Molly, 259 F.3d at
1106)). The party facing sanctions has the burden to show
that the failure to disclose was substantially justified or
harmless. Torres v. City of Los Angeles, 548 F.3d
1197, 1213 (9th Cir. 2008).
disclosures as required by Rule 26(a) were exchanged between
the parties on or before March 31, 2017. (See Doc.
18 at 1.) The Court's case management order required that
all fact discovery in this case conclude on May 4, 2018.
(See Doc. 37.) On May 4, 2019, Ramos sent
her Fourth Supplemental Rule 26 Disclosure Statement.
(See Doc. 87-4.) In that disclosure, Ramos provided
the name of Matt Bradbury, a former employee of Wholesale
Capital Corporation, as a fact witness. She also disclosed
emails exchanged between Bradbury and Leo Ramos in December
2016. Ramos had previously identified Matt Bradbury-in an
affidavit supporting her arguments at the summary judgment
stage-as the individual who informed her that she was
ineligible for a new VA loan for her home because U.S. Bank
was the trustee of the property. (See Doc. 69 at 5.)
But Ramos did not disclose Bradbury as a fact witness or the
emails before the discovery deadline closed.
initially contends that she did not in fact violate the
requirements of Rule 26(a). Her argument rests on the fact
that the Court's Case Management Order did not contain a
separate deadline for supplementation of Rule 26(a)
disclosures. Ramos contends that under the Rules, therefore,
supplementation may occur until thirty days before trial is
set to begin, and that since a trial date has yet to be set
in this case, she cannot have violated Rule 26(a)'s
requirements. But Rule 26(e) requires supplementation of
disclosures “in a timely manner” when a party
learns that a prior disclosure was incomplete. Fed.R.Civ.P.
26(e)(1)(A). Ramos was aware of the evidence she disclosed
regarding Matt Bradbury and the emails exchanged with him
from the outset of this litigation in January 2017. She
referenced both Bradbury and the emails in an affidavit she
attached to her Motion for Summary Judgment in November 2018.
(See Doc. 69.) And yet she failed to provide either
the emails or Bradbury's name to Wells Fargo until May 8,
2019. (See Doc. 84; Doc. 87-4.)
fails to adequately justify her decision to wait so long.
Instead, Ramos contends that her counsel failed to realize
that Bradbury would be needed as a fact witness until she
read the Court's order on summary judgment. But that does
not make her disclosure timely. Ramos failed to disclose the