The District Court was troubled by this case because the property owners had “tried their best to work with [the bank] in modifying their mortgage.” Slip op. 14. But the summary judgment evidence showed that the proposed modification agreement specified it was not effective until signed and the statute of frauds precluded any oral modification. Slip op. at 9-11. Thus, the District Court entered summary judgment dismissing their breach of contract, promissory estoppel, fraud, and wrongful foreclosure claims. Id. at 9-19.
A Wedding and Rule 30(d)(3)(A)
A few days before Martinez’s deposition, his counsel alerted the defense that he would need to leave mid-afternoon to make a wedding in Houston. Slip op. at 1. The parties agreed to start the deposition early, but when Martinez’s counsel exited after roughly six hours, the deposition had not been concluded. Id. Martinez opposed the continuation of his deposition, arguing that TWC had agreed to conclude the deposition in a day, “started the deposition four minutes late, [and] wasted time asking irrelevant background questions.” Id. at 2. Magistrate Judge Austin found that Martinez’s position on this issue borders on the frivolous.” Id. The deposition had not been terminated for any of the reasons permitted by Rule 30(d)(3)(A) (bad faith, annoyance, oppression, or harassment). Thus, terminating the deposition “before it was completed, and before the seven hours permitted by the rules had elapsed, plainly violated the Federal Rules of Civil Procedure.” Id.
Magistrate Judge Austin Recommends Against Summary Judgment in an Employment Case
This employment case involved only Texas state law, but it was removed on the basis of diversity jurisdiction. Slip op. at 1. Greystar moved for summary judgment on McCann’s age and disability discrimination claims, arguing that the 63 year-old apartment maintenance technician had not suffered an adverse employment action, had not been replaced by someone outside the protected class, was neither disabled nor perceived as disabled, and was subjected to adverse action (if there was any) for legitimate non-discriminatory reasons, vis, he had failed to secure a trash trailer that was later stolen. Id. McCann submitted evidence that, in response to the trailer theft, he was given the choice of resigning or termination, thus raising a fact issue on adverse employment action. Id. at 6. McCann demonstrated that his replacement was much younger and, therefore, outside the protected class. Id. at 7. Deposition testimony from a Greystar manager undercut the trailer incident as a basis for his threatened termination. Id. at 10. In combination with McCann’s testimony that his supervisor called him an “old man,” suggested he had Alzheimer’s, and fretted he might die in one of the apartments, Magistrate Judge Austin determined the evidence created a fact issue over whether Greystar’s professed reasons were pretext for discrimination. Id. at 9-10. He therefore recommended that Judge Yeakel deny Greystar’s motion. Id.