J.P. Morgan Chase Bank, N.A. v. Istrate Ionescu (2011)

MEMORANDUM OF DECISION RE MOTION TO COMPEL # 115 MOTION TO QUASH # 116

I

FACTS

On August 11, 2010, the plaintiff, J.P. Morgan Chase Bank N.A., filed a two-count complaint against the defendant, Istrate Ionescu d/b/a Law Office of Istrate Ionescu.¹  The complaint alleges that the defendant entered into an agreement with The Bank of New York pursuant to which The Bank of New York lent the defendant $50,000 and the defendant agreed to repay the loan with interest thereon.   Thereafter, the agreement was assigned by The Bank of New York to the plaintiff, which alleges that it is now the holder and owner of the agreement.   The plaintiff alleges that the defendant failed to make payments due and the plaintiff has declared the entire principal amount with interest, reasonable attorneys fees and costs immediately due and payable.   Despite demand, the defendant has failed, refused and neglected to make payment and the present action has ensued.

On February 10, 2011, the defendant filed a motion to quash notice of the deposition of the defendant (# 116) and a motion to compel production of documents (# 115).   On March 25, 2011, the plaintiff filed an objection to the defendant's motion to quash and an objection to the defendant's motion to compel.   The matter was heard on the March 21, 2011 short calendar.

II

DISCUSSION

On December 10, 2010, the defendant filed a request for production of documents seeking, in essence, all the documents in the plaintiff's possession that establish the plaintiff's standing to bring the contractual action.   It is this discovery request that is the basis for the defendant's motions to quash and compel production.   In the motion to quash, the defendant incorporates the motion to compel in further support of his position.   In both motions the defendant contends that, in response to his December 10, 2011 request for production of documents, the plaintiff provided an incomplete “Assignment and Assumption Agreement” (assignment agreement) between itself and The Bank of New York. According to the defendant, Section 3.1 and Schedule A recited in the assignment agreement are missing and therefore the plaintiff has not demonstrated that it has standing to pursue the present action against the defendant.

A

Motion to Quash

On December 15, 2010, the plaintiff filed a notice of deposition for the deposition of the defendant to take place on December 30, 2010.   The defendant, however, failed to attend the deposition.²  Thereafter, on December 30, 2010, the plaintiff filed a motion for order of compliance (# 112), which was denied without prejudice by the court, Burke, J., on February 2, 2011 (# 112.10).   According to the plaintiff, the court's ruling was based upon the defendant's express representation that he would attend the deposition which was scheduled, as noted by the court in its order, for February 13, 2011.   The deposition was thereafter continued to February 16, 2011.

The defendant now moves to quash the deposition until the plaintiff has responded to the defendant's December 10, 2010 discovery request and proved its standing to pursue the present action.   The defendant argues that the plaintiff's inability to obtain a document showing the assignment of the original agreement from The Bank of New York to the plaintiff raises uncertainty as to the authority of the plaintiff's counsel to prosecute the matter.   Moreover, the defendant argues that the plaintiff's counsel has not produced documentation showing that it represents the plaintiff or that it has the authority as an agent of the plaintiff to pursue the matter.   According to the defendant, the plaintiff's counsel “may be an interloper unauthorized by Chase Bank to respond to [the] defendant's request for production.”   Finally, the defendant argues that the plaintiff has not produced a certificate of authority, pursuant to General Statutes § 33–921(a), permitting it to transact business in Connecticut during the time period relevant to the plaintiff's cause of action.

The plaintiff objects to the motion to quash on the ground that the deposition was duly scheduled in accordance with this court's order (# 112.10).   The plaintiff argues that the defendant has no basis for the motion to quash contending, first, that lack of standing is jurisdictional and can only be raised in a motion to dismiss.   Next, the plaintiff argues that the defendant's request for a copy of the plaintiff's attorney fee agreement to prove that the plaintiff's counsel is authorized to proceed on behalf of the plaintiff is improper and irrelevant to the taking of a deposition.   Finally, the plaintiff contends that it is a national association, hence J.P. Morgan Chase, N.A., and is therefore a federally chartered bank and a United States corporation with the right to conduct business in any of the fifty states.   Notwithstanding, it is registered to do business in Connecticut and that information is available through the Secretary of the State.   The plaintiff seeks the cost of objecting to the motion to quash, $500, and the cost of scheduling two depositions, $500, neither of which the defendant attended without good cause.

Practice Book § 13–2 provides that “[i]n any civil action ․ where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter discovery of information or disclosure, production and inspection of papers, books or documents material to the subject matter involved in the pending action, which are not privileged, whether the discovery or disclosure relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, and which are within the knowledge, possession or power of the party or person to whom the discovery is addressed.   Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure.”

“Practice Book § 13–28(e) provides for the court's supervision over discovery based on the use of depositions and subpoenas:  The court in which the cause is pending ․ may, upon motion ․ (1) quash or modify the subpoena if it is unreasonable and oppressive ․” (Internal quotation marks omitted.)   Hackley v. Popp, Superior Court, judicial district of New Haven, Docket No. CV 07 5002241 (November 28, 2008, Rubinow, J.) (46 Conn. L. Rptr. 745).  “In ruling on discovery matters, including motions to quash deposition notices and subpoenas, the court is obligated to take a reasoned and logical approach to the relevant contest between the parties.   See, e.g., Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 7–8, 826 A.2d 1088 (2003).”  (Internal quotation marks omitted.)  Id.

In essence, the defendant is challenging the plaintiff's standing to pursue the action.   The plaintiff alleged in its complaint that it is the owner and holder of the note.  “The proper procedural vehicle for disputing a party's standing is a motion to dismiss.”  (Internal quotation marks omitted.)   D'Eramo v. Smith, 273 Conn. 610, 615 n.6, 872 A.2d 408 (2005).   The defendant has not provided any evidence suggesting that the notice of deposition is either unreasonable or oppressive.   Therefore, the motion to quash is denied.

Also, the plaintiff's request for the costs of objecting to the motion to quash and scheduling two depositions is denied.   Pursuant to Practice Book § 13–14(a), “[i]f any party has failed ․ to comply with a discovery order made pursuant to Section 13–13 ․ or has failed to appear and testify at a deposition duly noticed pursuant to this chapter ․ the judicial authority may, on motion, make such order as the ends of justice require.   Such orders may include the following ․ (2) The award to the discovering party of the costs of the motion, including a reasonable attorneys fee ․” Practice Book § 13–14(b).  “In order for a trial court's order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met.   First, the order to be complied with must be reasonably clear ․ [E]ven an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court's intended meaning ․ Second, the record must establish that the order was in fact violated ․ Third, the sanction imposed must be proportional to the violation.”  Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17–18, 776 A.2d 1115 (2001).

In the present case, the plaintiff's motion for order of compliance (# 112) was denied by the court (# 112.10).   In the order denying the motion, the court noted that the defendant's deposition was set for February 13, 2011.   Nonetheless, there was no discovery order in place which the defendant violated.   Rather, the defendant filed a motion to quash the notice of that February 13, 2011 deposition.   Moreover, although the defendant failed to attend the first deposition, it is within the discretion of the court to award sanctions.   See Rullo v. General Motors Corp., 208 Conn. 74, 78, 543 A.2d 279 (1988).

B

Motion to Compel Production of Documents

On December 10, 2010, the defendant filed a request for production of documents.   In request number one, the defendant requested the following:  “All documents in Plaintiff's possession, emails, or available to Plaintiff, that establish the Plaintiff's standing to bring this contractual action including but not limited to:  A. Copies of all assignments, contracts, documents, agreements, and other disclosure forms, emails, written communications, the ‘Note,’ memoranda and records concerning the ‘Note’ that are subject to this action, including attorney fee contracts.   B. Copies of all receipts for payment made by or to and/or received by the Plaintiff concerning the ‘Note’ that are subject to this action.”   On January 31, 2011, the plaintiff filed an objection to the defendant's request for production of documents.   With regard to request number one, the plaintiff “objects on the grounds that the request is overbroad and burdensome as it is not limited to time.   Plaintiff further objects on the ground that it seeks attorney-client or attorney work product privileged materials.   Plaintiff also objects on the ground that the request seeks documents regarding payments equally or more easily available to the defendant.   Notwithstanding said objections, Plaintiff discloses certain documents which evidence the transaction.”

In his motion to compel production of documents, the defendant requests that the plaintiff be ordered to produce all documents in accordance with the December 10, 2010 request for production.   According to the defendant, on January 31, 2011, the plaintiff produced an incomplete subset of the requested documents and the documents listed in the defendant's request for production are critical to the defendant's defense.   Specifically, the defendant contends that among the requested but missing documents are documents establishing the plaintiff's authority to bring the present action.   In response to the plaintiff's specific objections, the defendant argues, first, that the requested documents are to prove that the plaintiff has contractually based standing to legally pursue the plaintiff's cause of action and are therefore limited in time to the duration of the alleged contract between the plaintiff and the defendant.   Next, the defendant argues that the request is not overbroad because the plaintiff is required to establish standing in order to pursue the action.

According to the defendant, the plaintiff provided an incomplete assignment agreement between itself and The Bank of New York, with Section 3.1 and Schedule A recited in the assignment agreement missing.   The defendant contends that because of these missing parts, the assignment agreement does not establish that The Bank of New York sold the subject account to the plaintiff and, therefore, the plaintiff does not have standing to pursue this action.   Additionally, the defendant seeks the production of the attorney fee agreement between the plaintiff and the plaintiff's counsel, and a certificate of authority permitting the plaintiff to do business in Connecticut.

The plaintiff objects arguing that the defendant seeks to compel the production of documents without complying with the procedures set forth in Practice Book § 13–10(c).  Moreover, the plaintiff argues that the defendant is seeking to establish standing through his motion to compel but standing is a jurisdictional issue that should be raised in a motion to dismiss.   According to the plaintiff, as the time for filing a motion to dismiss has passed, the defendant has waived his right to assert the jurisdictional issue “through the back door of a discovery motion.”   The plaintiff also asserts the attorney-client privilege and/or work product privilege with regard to the defendant's request for the fee agreement.   Finally, the plaintiff argues that it does not need to produce a certificate of authority to do business in Connecticut because it is a national association and, notwithstanding, the defendant can obtain this information through the Secretary of the State.

“Generally, information is subject to pre-trial discovery only if it would be of assistance in the prosecution or defense of the action and appears reasonably calculated to lead to the discovery of admissible evidence.”   (Internal quotation marks omitted.)   Martin v. Power Service Products, Inc., Superior Court, judicial district of New London, Docket No. CV 08 5005746 (March 3, 2011, Devine, J.) [51 Conn. L. Rptr. 531];  see Practice Book § 13–2.  “Practice Book § 13–14(a) provides, in pertinent part, that a trial court may, on motion [to compel production], make such order as the ends of justice require.   Consequently, the granting or denial of a discovery request rests in the sound discretion of the court ․” (Internal quotation marks omitted.)  Martin v. Power Service Products, Inc., supra, Superior Court, Docket No. CV 08 5005746.

“The proper procedural vehicle for disputing a party's standing is a motion to dismiss.”  (Internal quotation marks omitted.)  D'Eramo v. Smith, supra, 273 Conn. 615 n.6. “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.  Practice Book § 10–31(a).”  (Internal quotation marks omitted.)  Wilcox v. Webster, 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․ The objection of want of jurisdiction may be made at any time ․ [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention ․ The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.”  (Internal quotation marks omitted.)  Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009).   Therefore, in the present case, the defendant has not waived his right to challenge the court's subject matter jurisdiction based on the plaintiff's lack of standing.

The defendant's motion to compel specifically seeks the production of Section 3.1 and Schedule A recited in the assignment agreement.   Paragraph one of the assignment agreement states:  “Assignment and Acceptance of Assets.   Subject to and upon the terms and conditions of the Purchase Agreement, Assignors hereby sell, assign, transfer, convey and deliver, or cause to be assigned, transferred, conveyed and delivered, to Assignee all right, title and interest of each Assignor in, to and under the Contracts that are Purchased Banking Assets (other than the Banking Leases, the Excluded Banking Assets and the Contracts set forth on Schedule A hereto), as set forth in Section 3.1 of the Purchase Agreement (the ‘Acquired Banking Contracts').   Assignee hereby purchases, acquires and accepts Assignors' entire right, title and interest in, to and under the Acquired Banking Contracts.”   Schedule A and Section 3.1 of the assignment agreement identify the contracts assigned from The Bank of New York to the plaintiff.   The documents would be of assistance to the defendant in determining whether to challenge the plaintiff's standing and the discovery request appears reasonably calculated to lead to the discovery of admissible evidence.   Accordingly, the motion to compel the production of Schedule A and Section 3.1 of the assignment agreement is granted.

With regard to the defendant's discovery request for the attorney fee contract between the plaintiff and the plaintiff's counsel, the defendant failed to set forth any specific legal argument in his motion to compel entitling him to this document.   The defendant argues only that the plaintiff's counsel may be an interloper unauthorized to proceed on behalf of the plaintiff.   The plaintiff has asserted attorney-client privilege and/or work product privilege over the fee agreement.   The fee agreement is not relevant to the plaintiff's standing to pursue the present action and the discovery request will not lead to the discovery of admissible evidence.   Therefore, the motion to compel the attorney fee contract is denied.

Finally, with regard to the defendant's request for the certificate of authority to conduct business in Connecticut, this document is equally as available to the defendant as to the plaintiff through the Secretary of the State.   Therefore, the motion to compel the certificate of compliance is denied.

BY THE COURT

Richard E. Burke, Judge

FOOTNOTES

FN1. Count one is directed at Istrate Ionescu d/b/a Law Office of Istrate Ionescu and count two is directed at Istrate Ionescu, individually, as guarantee.   Count two alleges that Istrate Ionescu unconditionally guaranteed the payment of all liabilities under the agreement..  FN1. Count one is directed at Istrate Ionescu d/b/a Law Office of Istrate Ionescu and count two is directed at Istrate Ionescu, individually, as guarantee.   Count two alleges that Istrate Ionescu unconditionally guaranteed the payment of all liabilities under the agreement.

FN2. According to the plaintiff, the defendant is a pro se attorney admitted to the bar in 1988 and the defendant, without excuse or motion, failed to attend the deposition..  FN2. According to the plaintiff, the defendant is a pro se attorney admitted to the bar in 1988 and the defendant, without excuse or motion, failed to attend the deposition.

Burke, Richard E., J.