JANET BOND ARTERTON, District Judge.
This suit, brought by pro se Plaintiff Genevieve Henderson ("Ms. Henderson") against Defendant Wells Fargo Bank, N.A. ("Wells Fargo"), alleges breach of contract, unfair trade practices, misrepresentation and infliction of emotional distress, arising out of Wells Fargo's foreclosure on Ms. Henderson's house.
The Court assumes the parties' familiarity with the underlying facts of the case. With respect to the instant motion, the following facts are relevant.
The Forbearance Agreement is central to at least one of Plaintiff's claims. In July 2015 Defendant filed its Motion [Doc. # 59] to Dismiss, attaching as an exhibit to its memorandum [Doc. # 60] a signed version of the Forbearance Agreement in which Plaintiff was required to make four monthly payments — three payments of $304.11 and a fourth payment of $47,556.82 (the "Four-Payment Agreement"). As part of her Opposition [Doc. # 61], Plaintiff filed an exhibit [Doc. # 62], which is an unsigned version of the Forbearance Agreement, requiring her to make only the first three payments (the "Three-Payment Agreement").
During discovery, Wells Fargo specifically requested that Ms. Henderson produce "the signed June 2011 Forbearance Agreement" in its First Request for Production of Documents in March 2016. (See Ex. B-6 (Defendant's Request for Production of Documents) to Counsel's Aff., ¶ 12.) Plaintiff did not serve any written responses or objections and simply produced a set of 88 documents, none of which was a copy of a signed forbearance agreement. (See Ex. B-1 (Henderson Tr.)) to Counsel's Aff. [Doc. # 94-4] at 219:21-25.) Wells Fargo renewed its request for the production of a signed forbearance agreement during Plaintiff's deposition on July 19, 2016. (See id. at 210:13-211:4; 220:16-19.)
Although Ms. Henderson agreed to review her files, she never produced a copy of the signed Three-Payment Agreement. (Def.'s Mot. to Strike at 4.) Wells Fargo filed for summary judgment [Doc. # 94] on September 19, 2016 and again submitted as an exhibit [Doc. # 94-3] a signed version of the Forbearance Agreement requiring four payments. On October 20, 2016 Plaintiff requested an extension [Doc. # 97] of time for submitting her Opposition to Defendant's Motion for Summary Judgment.
Defendant argues that Ex. A-3 to Plaintiff's Opposition Motion (the signed Three-Payment Forbearance Agreement) and any statements in Plaintiff's affidavit that rely on it must be precluded because (1) the Agreement is unauthenticated, (2) the existence of the signed version of the Agreement contradicts Plaintiff's prior deposition testimony, and (3) Plaintiff failed to disclose the signed Three-Payment Agreement in discovery. Only the third of these arguments has merit.
Federal Rule of Evidence 901(a) provides that in order "[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." One way this can be done is through "[t]estimony of a [w]itness with [k]nowledge ... that an item is what it is claimed to be." Fed. R. Evid. 901(b)(1). Rule 901 "does not erect a particularly high hurdle" for authenticating evidence. United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir.2001). "[T]he standard for authentication is one of reasonable likelihood, and is minimal." United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007) (internal quotation marks omitted). "Generally, a document is properly authenticated if a reasonable juror could find in favor of authenticity." Id. The proponent does not need to eliminate "all possibilities inconsistent with authenticity or to prove beyond any doubt that the evidence is what it purports to be." Id. (internal quotations omitted). The hurdle for authenticating evidence may be cleared by circumstantial evidence. See Dhinsa, 243 F.3d at 659.
Although Ms. Henderson failed to authenticate the signed Three-Payment Agreement in her initial affidavit, she remedied this defect by providing that authentication in her Opposition to Defendant's Motion to Strike. Given her pro se status, the Court accepts this supplemental affidavit as part of the record. Plaintiff's statement that "[t]he Forbearance Agreement that [she] produced. . . is a true copy of the original agreement that [she] mailed to Defendant in 2011" suffices to authenticate Plaintiff's exhibit. Therefore, Plaintiff has remedied her failure to initially authenticate the document.
Wells Fargo contends that "[t]he sudden appearance of the 3-payment Agreement contradicts Plaintiff's prior deposition testimony that she likely does not have a copy of the 3-payment Agreement with her signature and that, if she had a copy, it would have been produced" to Defendant, and consequently should be struck. (Def.'s Mot. to Strike at 8-9.) However, Ms. Henderson's prior deposition testimony is not necessarily inconsistent with later producing the signed Three-Payment Agreement.
When first asked about the signed Three-Payment Agreement, Plaintiff testified that:
(Henderson Tr. at 202:15-203:13.) Shortly thereafter, counsel for Defendant again questioned Plaintiff about the Agreement:
(Id. at 210:8-211:4.)
Plaintiff's testimony is not patently contradicted by her subsequently submitting a signed copy of the Three-Payment Agreement with her Opposition to Summary Judgment. Plaintiff indicated that she was not sure if she had a copy of the Agreement, and while expressing doubt, never definitively stated that she did not have one. Rather, she stated that she had "looked for everything [she] could" while acknowledging that she had not yet produced a copy of the document. (Id. at 202:15-203:5.) Plaintiff subsequently agreed to again look for the document. The fact that Plaintiff did not produce the signed Agreement until the time she filed her Opposition Motion is not inconsistent with (a) her statement that she did not know whether she has a copy of the signed Three-Payment Agreement in her possession or (b) her promise to look for the document.
Therefore, Plaintiff has not "create[d] an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." See Hayes v. New York City Dept. of Corr., 84 F.3d 614, 619 (2d Cir. 1996).
Parties are entitled to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Civ. P. 26(b)(1). Parties "are under a continuing duty to supplement [their discovery responses] by providing documents that are responsive to the discovery propounded. The fact that discovery has closed has no bearing on [a][] duty to supplement under Rule 26(e)." A & R Body Spec. & Coll. Works, Inc. v. Prog. Cas. Ins. Co., No. 3:07CV929 WWE, 2014 WL 6474285, at *2 (D. Conn. Nov. 19, 2014) (citations omitted).
When "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... unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1).
In determining whether Plaintiff's failure to produce the Agreement in a timely manner was "substantially justified or is harmless" the Court considers: (1) the party's explanation for its failure to comply, (2) the importance of the evidence, (3) any prejudice suffered by the opposing party as a result of having to prepare to meet the new evidence, and (4) the possibility of a continuance. Charles v. Cty. of Nassau, 116 F.Supp.3d 107, 121 (E.D.N.Y. 2015) (citing Design Strategy, Inc., 469 F.3d at 296). The Court addresses each factor in turn.
First, Plaintiff fails to provide a sufficient explanation for why she did not produce the signed Three-Payment Agreement during discovery. Plaintiff primarily relies on her incorrect assumption that "[b]ecause Defendant had control of the original agreement in 2011, and a copy in 2015 . . . Plaintiff had no obligation to produce it." (Pl.'s Opp'n. [Doc. # 108] to Def.'s Mot. to Strike at 9.) However, the Federal Rules do not afford a party the option of refusing to produce discovery on the basis that she believes that the requesting party is already in possession of the requested discovery. This is especially true where Plaintiff has been aware since Defendant filed its Motion to Dismiss on July 13, 2015 that Defendant claims it has in its possession only a signed Forbearance Agreement containing four payments. Moreover, counsel for Defendant made crystal clear how important it was for Plaintiff to produce the signed Three-Payment Agreement at her deposition July 19, 2016, giving her another opportunity to remedy her omission before Defendant prepared its Motion for Summary Judgment. Plaintiff's lack of any justifiable reason for her failure to produce the Agreement after being asked on multiple occasions weighs strongly in favor of preclusion.
Second, the signed Agreement is undoubtedly critical to Ms. Henderson's breach of contract claim. Plaintiff claims that Wells Fargo breached the Forbearance Agreement by not modifying her loan as promised after she performed her obligation under the contract by paying the three payments of $304.11. However, Wells Fargo contends that Plaintiff breached the contract first by failing to make the required fourth payment. See David M. Somers & Associates, P.C., v. Busch, 283 Conn. 396, 406 (2007) (A party cannot "recover damages under an agreement unless [she] has fully performed [her] own obligations under it."); Automobile Ins. Co. v. Model Family Laundries, Inc., 133 Conn. 433, 437 (1947) (holding same); see also Weiss v. Smulders, 313 Conn. 227, 263-64 (2014) ("Under contract law, it is well settled that a material breach by one party discharges the other party's subsequent duty to perform on the contract."). Thus, precluding Plaintiff's version of the Agreement will prove fatal to at least one of Plaintiff's claims. This factor weighs against preclusion.
Third, Defendant has been, and would continue to be, prejudiced by Plaintiff's extraordinarily late disclosure of the signed Three-Payment Agreement. Plaintiff argues that her omission was harmless because Defendant already has a copy of the Three-Payment Agreement, both because it has the original, and because she produced the unsigned version as an exhibit to her Motion to Dismiss. Since Defendant has never had a signed copy of the Three-Payment Agreement, Defendant was deprived of any opportunity to depose Plaintiff about it, only focusing on whether it indeed even existed. See Doe v. Hicks, No. 3:15CV01123(AVC), 2016 WL 5172814, at *10 (D. Conn. Sept. 21, 2016), reconsideration denied, No. 3:15CV01123(AVC), 2016 WL 6433828 (D. Conn. Oct. 31, 2016) (holding that defendant's failure to produce evidence in advance of plaintiff's deposition, particularly where defendant's counsel had it in his possession, is not harmless). Further, Wells Fargo invested time and resources developing a litigation strategy and drafting a comprehensive motion for summary judgment based upon the absence of any signed Three-Payment Agreement and will sustain substantial prejudice if Plaintiff's Exhibit is not stricken, and thus this factor weighs in favor of preclusion.
Lastly, "[w]hile a continuance is always theoretically possible, the closure of discovery weighs against a continuance." Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 76 (E.D.N.Y. 2012). Plaintiff filed her case in 2013; discovery closed on August 3, 2016; and three months later Plaintiff produced the long-requested document. This factor, too, weighs in favor of precluding Plaintiff's Exhibit A-3.
In sum, although the existence of a signed Three-Payment Agreement is a critical piece of evidence for Plaintiff, the Court finds that its preclusion is warranted under the circumstances of this case. Plaintiff's pro se status does not insulate her from the consequences of her utter failure to provide any legitimate justification for not having handed over a document, the importance of which she was clearly aware, despite it having been requested on numerous occasions.
Additionally, because affidavits "used to support or oppose a motion must... set out facts that would be admissible in evidence," to the extent Plaintiff's Affidavit [Doc. # 102] relies on Exhibit A-3, the excluded signed Three-Payment Agreement, those statements must also be excluded from the record. Fed. R. Civ. P. 56(c)(1)(4); see also Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004) ("Affidavits submitted in support of or in opposition to the summary judgment motion ... shall set forth such facts as would be admissible in evidence."). Therefore, the Court will not consider paragraphs 13, 17 or 19B of Plaintiff's Affidavit.
Wells Fargo also asks that the Court strike what it terms "inflammatory news articles" (Exhibits A-10 and A-11 to Pl.'s Opp'n to Def.'s Mot. for Summary Judgment) "because they are not relevant to the current action and, even if they are deemed relevant, their probative value is substantially outweighed by their prejudicial effect" (Def.'s Mot. to Strike at 11-12.). Evidence is relevant if: "(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Civ. P. 401. Here, Exhibits 10 and 11 do not meet either prong of the relevancy test because they involve matters entirely unrelated to the current action. Specifically, the attached news articles discuss instances of Wells Fargo's purported fraudulent conduct with regard to the opening of consumer accounts, foreclosures, loan modifications, and robo-signing. (See Exhibits A-10 and A-11 to Pl.'s Opp'n to Def.'s Mot. for Summary Judgment.) The articles do not, however, relate to Ms. Henderson's loan, Wells Fargo's foreclosure of her property, or the parties' loss mitigation efforts.
Moreover, any possible probative evidentiary value of Exhibits 10 and 11 is substantially outweighed by the risk of unfair prejudice where Plaintiff uses the exhibits to suggest that Wells Fargo acted improperly in this case based upon Defendant's other improper conduct portrayed by the negative press coverage. For these reasons, the Court strikes Exhibits 10 and 11.
Defendant argues that certain portions of Plaintiff's Affidavit cannot be considered by the Court because they rely on conclusory and generalized statements and are made without personal knowledge. (Def.'s Mot. to Strike at 13.) Pursuant to Fed. R. Civ. P. 56(c)(1) "an affidavit [opposing summary judgment] must be made on personal knowledge . . . and show that the affiant or declarant is competent to testify on the matters stated." Statements not made in compliance with this Rule are inadmissible. See e.g., United States v. Alessi, 599 F.2d 513, 514 (2d Cir. 1979). Furthermore, "a party cannot create a triable issue of fact merely by stating in an affidavit the very proposition they are trying to prove" through conclusory statements that lack specifics. Hicks v. Baines, 593 F.3d 159, 167 (2d Cir. 2010); see also Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) ("conclusory allegations . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist.") (internal quotation marks omitted).
The Court agrees with Defendant that the following paragraph must be stricken because it is clearly made without personal knowledge.
(Pl.'s Aff. ¶ 19A.) However, the remainder of the statements Defendant asks the Court to exclude are not so clearly made without personal knowledge that they should not be considered. However, several of them are conclusory allegations and opinions which may not be used to create an issue of material fact. See Hicks, 593 F.3d at 167. Still, the Court will not exclude those statements entirely on this Motion to Strike, but rather will assess the weight of the remaining statements accordingly when making its determination on the Summary Judgment Motion.
For the foregoing reasons, Defendant's Motion to Strike is GRANTED in part and DENIED in part. Exhibit A-3 to Plaintiff's opposition to summary judgment is stricken from the record, as are those portions of Plaintiff's Affidavit which rely upon the admissibility of that Exhibit. Plaintiff's Exhibits A-10 and A-11 to her Opposition, and paragraph 19A of Plaintiff's Affidavit are also stricken, while the remainder of the identified statements in Plaintiff's Affidavit remain part of the summary judgment record.
IT IS SO ORDERED.
Fed. R. Civ. P. 37(c)(1).
(Pl.'s Aff. ¶ 13.)
(Id. ¶ 17.)
(Id. ¶ 19B.)
(Id. ¶ 15.)
(Id. ¶ 16.)
(Pl.'s Aff. ¶ 18.)
(Id. ¶ 9.)
(Id. ¶ 19C.)
(Id. ¶ 17.)
