Nationstar Mortgage, LLC v. Flamingo Trails No. 7 Landscape Maintenance Ass'n
2016 U.S. Dist. LEXIS 99524
D. Nev.2016Background
- Nationstar noticed a March 7, 2016 deposition of SFR manager Christopher Hardin; notice was served on counsel and by mail. SFR filed a protective-order motion on March 5 and Hardin did not appear on March 7. Nationstar moved to compel and for sanctions.
- The court previously denied earlier discovery motions without prejudice pending jurisdictional issues; after resolving jurisdiction the court directed Nationstar to refile a consolidated motion to compel and address protective-order and sanctions arguments.
- Nationstar argued Hardin is an officer/manager of SFR, attended the foreclosure sale at issue, and that his live testimony is necessary because prior Rule 30(b)(6) testimony and interrogatory answers lacked knowledge or recalled answers.
- SFR argued a subpoena was required (Hardin a nonparty), Hardin’s deposition would be duplicative of Rule 30(b)(6) testimony, the deposition would be unduly burdensome, and that its pending protective-order motion (filed two days before the deposition) and asserted meet-and-confer failures preclude sanctions.
- The court found SFR’s own admissions established Hardin as SFR’s managing agent for Rule 30 purposes, rejected arguments of improper duplication and undue burden, granted Nationstar’s motion to compel the deposition within 30 days, and granted sanctions for Hardin’s nonappearance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a deposition notice (Rule 30) sufficed or a Rule 45 subpoena was required | Hardin is SFR’s officer/sole manager; Rule 30 notice is sufficient | Hardin is a nonparty; attendance required a subpoena | Notice was sufficient because SFR’s own statements showed Hardin is an officer/managing agent, so Rule 30 applied |
| Whether a percipient deposition of Hardin is impermissibly duplicative of prior Rule 30(b)(6) testimony | Hardin has unique, personal knowledge (attended foreclosure sale); 30(b)(6) witness lacked answers | Topics overlap; parties entitled to one or the other, not both | Not duplicative: 30(b)(6) deponent could not answer many questions; Hardin’s testimony is proportionate and permitted |
| Whether compelling Hardin would impose undue burden | Deposition can be done in a few hours and outside business hours to minimize disruption | Hardin is extremely busy managing ~660 properties and multiple litigations; deposition would unduly burden SFR | Speculative/blanket assertions insufficient; burden not shown; court ordered deposition within 30 days |
| Whether sanctions are proper for failure to appear given (a) lack of meet-and-confer and (b) pending protective-order motion | Sanctions warranted; no pre-filing conference required for nonappearance sanctions; pending protective order does not excuse absence absent court order staying deposition | Nationstar failed to meet-and-confer; pending protective-order motion excused nonappearance | Sanctions awarded. No pre-filing conference needed for Rule 37(d) deposition sanctions; filing a protective-order motion on the eve of deposition without a court order does not excuse failure to appear |
Key Cases Cited
- Hallett v. Morgan, 296 F.3d 732 (9th Cir. 2002) (broad trial-court discretion in discovery)
- Crawford-El v. Britton, 523 U.S. 574 (1998) (standard on discovery relevance and scope principles)
- Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146 (9th Cir. 2010) (distinction between deposing a party vs. nonparty and subpoena requirement)
- Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257 (9th Cir. 1964) (court, not counsel/deponent, controls relief from duty to appear; last-minute protective motions do not excuse nonappearance)
- Hyde & Drath v. Baker, 24 F.3d 1162 (9th Cir. 1994) (burden on sanctioned party to show substantial justification or injustice to avoid fee award)
- Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259 (N.D. Cal. 2012) (high-level officers may be deposed as percipient witnesses despite prior 30(b)(6) testimony)