Stein v. Monterey Financial Services Inc et al

Filing 89

MEMORANDUM OPINION AND ORDER: 71 MOTION to Strike Brief in Opposition, and 77 MOTION for Leave to File a Sur-reply are DENIED; 83 MOTION for Leave to File Notice of Supplemental Authority is GRANTED. 63 MOTION for Class Certificati on is DENIED. Final Pretrial Conference set for 2/17/2017, at 1:00 PM; Jury Trial set for 3/27/2017, at 9:00 AM, both at the Hugo L Black US Courthouse, Birmingham, AL before Judge Abdul K Kallon. Signed by Judge Abdul K Kallon on 1/31/2017. (YMB)

FILED
2017 Jan-31 AM 08:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ASHLEE STEIN, individually and
on behalf of a class of persons
similarly situated,
Plaintiff,

vs.
MONTEREY FINANCIAL
SERVICES, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Civil Action Number
2:13-cv-01336-AKK

MEMORANDUM OPINION AND ORDER
Ashlee Stein filed this lawsuit against Monterey Financial Services, Inc.,
Experian Information Solutions, Inc., and Equifax Information Services, L.L.C.,
asserting seven claims in her individual capacity. 1

Stein voluntarily dismissed

Experian and Equifax, leaving Monterey as the sole defendant. See docs. 21; 22;
23; 24. Stein subsequently filed a motion to amend her complaint to add a class
claim under the TCPA, which the court granted. See docs. 26; 31. Monterey then
moved for summary judgment as to Stein’s individual and class TCPA claims.
Doc. 35. The court denied Monterey’s motion and entered a scheduling order
1

Stein’s individual claims include alleged violations of the Telephone Consumer
Protection Act of 1991, 47 U.S.C. § 227 et seq. (“TCPA”) (Count I); Negligent, Reckless,
Wanton, Malicious, and/or Intentional Conduct (Count II); Negligent Hiring, Training, and/or
Supervision of Employees and/or Agents (Count III); Invasion of Privacy by Intrusion Upon
Seclusion (Count IV); Violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et
seq. (“FDCPA”) (Count V); Violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.
(“FCRA”) (Count VI); and Defamation (Count VII). See doc. 1.

which, among other things, allotted one year for class discovery. Docs. 50; 52.
Presently before the court is Stein’s motion for class certification. Doc. 63. The
motion is fully briefed, docs. 63; 69; 74, and, with the benefit of oral argument,
ripe for ruling. For the reasons stated more fully below, the court concludes that
the motion is due to be denied.2 Accordingly, this matter is SET for a pretrial
conference at 1:00 p.m. on February 17, 2017, and for trial at 9:00 a.m. on March
27, 2017, both in Courtroom 4A of the Hugo L. Black Courthouse, 1729 Fifth
Avenue North, Birmingham, AL 35203.

The court directs the parties to the

Standard Pretrial Procedures governing all pretrial deadlines, which is attached as
Exhibit A.
I.

FACTUAL BACKGROUND

Sometime before August 2012, Stein discovered that her credit report
reflected an outstanding debt for a “Luminess Air” account that Stein did not
recognize or recall creating, and which Monterey had acquired for collection. See
doc. 43-2 at 3. Subsequently, on August 28, 2012, after obtaining Monterey’s
number from the credit reporting agency, Stein contacted Monterey “to find out
why this account [she] knew nothing about was showing up on [her] credit
reports.” Id.; doc. 43-3 (recording of August 28, 2012 phone call at 1:28, 3:43).
2

Stein’s motion to strike, doc. 71, and Monterey’s motion for leave to file a sur-reply,
doc. 77, are DENIED. Monterey’s motion for leave to file notice of supplemental authority,
doc. 83, is GRANTED.
2

When Laurisa Fernandez answered Stein’s call, Stein explained that she had
“never ordered anything” from Luminess Air and was calling to “see what was on
the account.” Doc. 43-3 at 3:43. After Fernandez located Stein’s account in the
Monterey database, and before offering any additional information about the
account, Fernandez asked Stein to verify her mailing address and asked, “What’s a
good home phone number for you?” Id. at 5:00. Stein responded by verifying her
address and providing her cell phone number. Id. at 5:03. Fernandez then asked
whether the number from which Stein was calling was a “good number” to reach
her, and Stein responded, “no.” Id. at 5:08.
At this point, Fernandez informed Stein that her account reflected an
outstanding balance of $397.94 for the purchase of an “airbrush makeup kit” from
Luminess in 2010, which was transferred to collection in April 2012. Id. at 5:13,
9:47. Confused as to how she incurred the debt, Stein asked a series of questions
about the purchase and learned that the credit card used to purchase the makeup kit
was a Mastercard in Stein’s name, but which had a different last four digits than
those on the Mastercard in Stein’s possession at the time of the call. Id. at 5:30–
9:39. At one point during the conversation, Stein stated that perhaps her mother
had purchased the makeup kit on Stein’s credit card, adding that her mother
“would do something like that and not even tell [her].” Doc. 43-3 at 6:47–6:52.
Ultimately, Stein stated that she “didn’t want . . . [the charge] on her credit” and
3

that she would like to “set up payments so that can be taken care of.” Id. at 7:10.
Fernandez subsequently provided instructions for sending payment to Monterey,
which concluded the telephone conversation. Id. at 7:16–11:47.
“[A]fter thinking more about the situation” and speaking with a lawyer about
whether she should “pay for this debt that was not [hers] and that [she] did not
owe,” Stein changed her mind and chose instead to “dispute the account with the
credit reporting companies.” Doc. 43-2 at 4. Apparently, Stein never conveyed
this to Monterey, because Monterey attempted to collect the debt by continuously
using an automatic dialer to call Stein on her cell phone. Doc. 36-1 at 5. Between
August 28, 2012 and July 18, 2013 (when Stein initiated this lawsuit), Stein
received over thirty auto-dialed calls and numerous prerecorded voicemails from
Monterey debt collectors. See doc. 43-1 at 4–6.
II.

CLASS CERTIFICATION STANDARDS

Federal Rule of Civil Procedure 23 outlines the requirements for class
certification. As a threshold matter, a district court should determine whether the
proposed class is “adequately defined and clearly ascertainable.” Little v. T-Mobile
USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012) (quoting DeBremaecker v. Short,
433 F.2d 733, 734 (5th Cir. 1970)) (internal quotation marks omitted); see also
John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (“The
existence of an ascertainable class of persons to be represented by the proposed
4

class representative is an implied prerequisite of Federal Rule of Civil Procedure
23.”). Only if the court determines that this threshold requirement is met must it
then address the question of whether the four Rule 23(a) prerequisites are satisfied.
These prerequisites, commonly referred to as the numerosity, commonality,
typicality, and adequacy requirements, are “designed to limit class claims to those
fairly encompassed by the named plaintiffs’ individual claims,” Valley Drug Co. v.
Geneva Pharms., Inc., 350 F.3d 1181, 1188 (11th Cir. 2003) (citing Prado-Steiman
v. Bush, 221 F.3d 1266, 1278 (11th Cir. 2000)), and “serve as guideposts for
determining whether under the particular circumstances maintenance of a class
action is economical and whether the named plaintiff’s claim and the class claims
are so interrelated that the interests of the class members will be fairly and
adequately protected in their absence,” Piazza v. Ebsco Industries, Inc., 273 F.3d
1341, 1346 (11th Cir. 2001) (quotations and citations omitted).
If the plaintiff establishes the Rule 23(a) prerequisites, the analysis then
shifts to Rule 23(b), which requires, in pertinent part, that “questions of law or fact
common to class members predominate over any questions affecting only
individual members, and that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
“A district court must conduct a rigorous analysis of the Rule 23
prerequisites before certifying a class.” Sher v. Raytheon Co., 419 F. App’x 887,
5

889 (11th Cir. 2011) (citing Falcon, 457 U.S. at 161). While class certification
naturally focuses on the requirements of Rule 23, “the trial court can and should
consider the merits of the case to the degree necessary to determine whether the
requirements of Rule 23 will be satisfied.” Valley Drug Co., 350 F.3d at 1188
n.15. Finally, “the party seeking class certification has the burden of proof,”
Brown v. Electrolux Home Prods., 817 F.3d 1225, 1233 (11th Cir. 2016) (citing
Valley Drug. Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003))
(emphasis in original), and “if doubts remain about whether the standard [for
certification] is satisfied, ‘the party with the burden of proof loses.’” Brown, 817
F.3d at 1233 (quoting Simmons v. Blodgett, 110 F.3d 39, 42 (9th Cir. 1997)).
III.

ANALYSIS

Turning to the present motion, the TCPA makes it unlawful “to make any
call (other than a call . . . made with the prior express consent of the called party)
using any automatic telephone dialing system or an artificial or prerecorded voice .
. .” 47 U.S.C. § 227(b)(1)(A). Stein seeks to certify a class of “[a]ll persons within
the United States to whom Monterey placed an ATDS-to-cellular debt-collection
call between February 13, 2013 and July 17, 2013, and who did not provide their
cellular numbers to their creditors during the transaction that resulted in the debt
owed.” Doc. 63 at 8. Stein insists that she can ascertain the members of this
proposed class by having Monterey identify “all ATDS-to-cellular calls it made
6

during the statutory period,” and then removing all potential class members who
consented to receiving the calls by having Monterey identify “any [call recipients]
who had provided their cellular phone numbers to their creditors during the
transaction resulting in the debt owed.” Id.
The parties have primarily focused on whether Stein’s theory of consent is
too narrow or, stated differently, does not exclude from the proposed class all
persons who validly consented to receiving debt-collection calls from Monterey.3
The court does not have to resolve which party’s consent theory is “correct,”
however, due to Stein’s failure to rebut a secondary argument Monterey presented:
i.e., that Stein proposes no feasible method for removing persons who received
non-debt-collection calls from the pool of proposed class members. See doc. 69 at
19; Transcript from Dec. 19, 2016 Oral Argument at 38–39. Because a plaintiff
has the burden of “propos[ing] an administratively feasible method by which class
members can be identified,” Karhu v. Vital Pharms., Inc., 621 F. App’x 945, 947
(11th Cir. 2015), for reasons explained more fully below, the court concludes that
Stein cannot satisfy Rule 23’s implied ascertainability requirement and Rule
23(a)(3)’s typicality requirement. Alternatively, the court finds that, regardless of

3

Specifically, while Stein contends that a consumer may provide consent only to her
original creditor during the transaction giving rise to the debt, doc. 63 at 5, Monterey contends
that a consumer may also provide consent to a third party and may do so after the underlying
transaction, as long as the consumer does so “in connection with” the debt, doc. 69 at 9.
7

the operative consent theory, individualized consent issues render the proposed
class unsuitable for certification under Rule 23(b)(3).
A. Ascertainability and Typicality
Monterey points out that “in addition to acting as a debt collector, [it] also
services non-delinquent accounts as a creditor or loan servicer,” and, consequently,
“there are an unknown number of alleged class-members that received calls from
[Monterey], but did not receive them from a debt collector.” Doc. 69 at 19.
Monterey contends that Stein “ignores this distinction and fails to offer any criteria
to

ascertain

these

individuals,”

thereby

rendering

the

proposed

class

unascertainable. Id.
Stein apparently agrees that the court should deny certification if the parties
cannot easily identify and remove persons to whom Monterey placed non-debtcollection calls. Indeed, at least one panel of the Eleventh Circuit, albeit in an
unpublished opinion, has held that a district court should not certify a class when
the evidence of record does not allow the court to identify only persons
encompassed by the proposed class definition.

See Bussey v. Macon Cnty.

Greyhound Park, Inc., 562 F. App’x 782, 788 (11th Cir. 2014). However, Stein
counters that the tripartite nature of Monterey’s business “presents no obstacle to
ascertainability” since Monterey’s calls are organized by division, and,
presumably, she can carve out the relevant class members, i.e., the individuals to
8

whom Monterey placed debt-collection calls. Doc. 74 at 8–9 (citing doc. 74-3 at
3–4); see also doc. 63 at 8. Relevant here, Monterey’s representative Shaun Lucas
testified that there are “different companies within Monterey,” referencing “C10
[finance],” “C11 [debt collection],” and “C12 [loan servicing]” divisions. Doc. 743 at 3–4. Lucas also testified that Monterey’s “core business is to buy performer
receivables [i.e., the C10 category],” id. at 3 (emphasis added), but that Luminess
Air, the entity on whose behalf Monterey attempted to collect a debt from Stein,
“happens to be a collection agency [i.e., a C11] client,” id. at 4. 4 Finally, and
significantly, Lucas testified that these designations may be fluid and/or that some
proposed class members could have multiple designations, as an account could be
“generated in [one of the] other two divisions, finance or loan servicing,
defaulted[,] and later transferred to [Monterey’s] collection agency.” Doc. 69-1 at
96; see also doc. 63-2 at 9.

4

The undisputed evidence that debt-collection comprises only a minority of Monterey’s
business undermines Stein’s ability to prove typicality under Rule 23(a)(3) if she cannot propose
a feasible method for removing persons who received C10 and C12 calls. “[T]ypicality
measures whether a sufficient nexus exists between the claims of the named representative and
those of the class at large.” Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1323 (11th Cir. 2008).
Cf. Sharf v. Fin. Asset Resolution, L.L.C., 295 F.R.D. 664, 670 (S.D. Fla. 2014) (“Plaintiff argues
that he has established typicality because Plaintiff and the members of the class suffered from a
common practice Defendant employed, namely its issuance of form debt collection letters. The
Court agrees with Plaintiff that the sending of form debt collection letters demonstrates
typicality.”) (emphasis added). Without proposing an effective filtering method, Stein faces an
uphill battle in establishing that her claims are typical of the proposed class at-large, or, stated
differently, that Monterey engaged in the same conduct vis-à-vis Stein and the unnamed class
members.
9

Although Stein contends that the parties can distinguish each call by a
consumer account’s C10, C11, or C12 designation, she proposes no plan, based on
the evidence obtained during class discovery, for doing so. Instead, Stein attempts
to shift the burden to Monterey, stating in conclusory fashion that “if [non-debt
collection calls] actually exist, they can be easily identified and filtered out of the
class list,” doc. 74 at 9, and that “if Monterey can show that . . . persons [for whom
Monterey acts as a loan servicer or creditor] exist, the simple process of removing
them from the class will assuage any concerns about typicality,” id. at 9 n.2. These
contentions miss the mark because, again, “‘[t]he burden of establishing the [Rule
23 requirements] is on the plaintiff who seeks to certify the suit as a class action.’”
Karhu, 621 F. App’x at 947 (quoting Heaven v. Trust Co. Bank, 118 F.3d 735, 737
(11th Cir. 1997)). Moreover, “[a] party’s assurance to the court that it intends or
plans to meet the requirements [of Rule 23] is insufficient.” In re Hydrogen
Peroxide Antitrust Litig., 552 F.3d 305, 318 (3d Cir. 2008) (citing Newton v. Merill
Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 191 (3d Cir. 2001) (“[W]here
the court finds, on the basis of substantial evidence as here, that there are serious
problems now appearing, it should not certify the class merely on the assurance of
counsel that some solution will be found.”) (internal quotation marks omitted)).
To succeed, the moving plaintiff “must affirmatively demonstrate [her] compliance
with Rule 23 by proving that the requirements are ‘in fact’ satisfied.” Brown, 817
10

F.3d at 1234 (quoting Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013), in
turn quoting Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011))
(emphasis in original, some internal quotation marks omitted).

Conclusory

statements similar to those by Stein that a class is ascertainable are insufficient to
meet the moving plaintiff’s burden. See In re Wellbutrin XL Antitrust Litig., 308
F.R.D. 134, 151 (E.D. Pa. 2015) (“The [plaintiffs’] evidence in support of
ascertainability consists mainly of conclusory statements by its experts that records
exist that could be used to ascertain the class . . . . This evidence is not enough to
show by a preponderance of the evidence that the class is ascertainable.”); see also
Hill v. T-Mobile USA, Inc., No. 2:09-cv-1827-VEH, 2011 U.S. Dist. LEXIS
157669, at *34 (N.D. Ala. May 16, 2011 (class unascertainable when plaintiffs
failed to “address[] how to effectively back out from [the proposed class list] those
persons who would potentially be ineligible . . . .”).
In summary, because a plaintiff seeking certification must propose an
administratively feasible method for identifying class members and Stein proposes
no specific plan, using the evidence generated during over a year of class
discovery, to filter-out potential class members to whom Monterey made C10 or
C12 calls, Stein has failed to meet her burden of proving that the proposed class is
clearly ascertainable and that her claim — based on C11 calls — is typical of those
of the unnamed class members.

Moreover, even if Stein currently possessed
11

evidence of accounts with C10, C11, or C12 designations, she completely fails to
address Monterey’s evidence that accounts are often transferred between
departments and that some accounts have multiple designations. 5 Based on this
record, Stein would experience difficulty, notwithstanding an account’s current
designation, in proving what type of call Monterey made to a particular individual
on a given date,6 and in establishing that her claims are typical of the class. See
Kreuzfeld A.G. v. Carnehammar, 138 F.R.D. 594, 598–99 (S.D. Fla. 1991) (named
representative must possess “same essential characteristics as the claims of the
class at large” to satisfy typicality requirement); Sharf, 295 F.R.D. at 670 (citing
Manno v. Healthcare Revenue Recovery Grp., L.L.C., 289 F.R.D. 674, 686 (S.D.
Fla. 2013)) (“Typicality is generally satisfied when the named representative[], in
proving the elements of [her] claim[], would also establish the elements of the
5

The totality of Stein’s rebuttal on this point is as follows:

Monterey’s unsupported contention that it may be a creditor or loan servicer to
some of the potential class members[] presents no obstacle to ascertainability.
Monterey’s call records are organized by division. For example, records of calls
made by Monterey’s loan servicing division are found on the “C12” dialer.
Accordingly, if any such calls actually exist, they can be easily identified and
filtered out of the class list.
Doc. 74 at 8–9 (record citations omitted). This contention does not rebut Monterey’s evidence
that its accounts may have fluid or multiple designations.
6

See doc. 63-2 at 9 (“[Monterey] has . . . produced a Master Spreadsheet that
demonstrates which consumers (by consumer name and [Monterey] account number) [Monterey]
has contractual documents/applications for. In certain instances, multiple [Monterey] account
numbers are associated with the same consumer and contractual obligation. The reason for this
is that when accounts are transferred amongst [Monterey’s] multiple departments, the account
number will change.”).
12

class members’ claims.”); Stemple v. QC Holdings, Inc., No. 12-cv-01997BAS(WVG), 2016 U.S. Dist. LEXIS 55011, at *14 (S.D. Cal. Apr. 25, 2016)
(typicality requirement satisfied when “Plaintiff’s and the unnamed class members’
claims ar[ose] from the same alleged conduct of Defendant — unsolicited phone
calls for debt collection purposes using an ATDS and artificial voice — and [were]
based on the same legal theory — violation of the TCPA”) (emphasis added). For
these reasons, and because “[a] district court that has doubts about whether ‘the
requirements of Rule 23 have been met should refuse certification . . . .,’” Brown,
817 F.3d at 1233–34 (citation omitted), the court concludes that the proposed class
is not ascertainable and, relatedly, that Stein has failed to show that her claims are
typical of the class of claimants she seeks to represent.
B. Predominance of Individualized Consent Issues
Alternatively, even assuming that Stein could satisfy the ascertainability and
typicality requirements, Stein cannot show that certification is appropriate under
Rule 23(b)(3) due to the predominance of individualized consent issues over any
common questions regarding Monterey’s course of conduct. Stein contends that
the court would not need to undertake any individualized inquiries under either
party’s proposed consent theory, because Monterey “obtained consent in the same
way, for every class call, by acquiring cellular numbers from the call recipients
over the phone,” doc. 74 at 13 (emphasis omitted). As an initial matter, it is not
13

clear that Monterey engages in such a uniform course of conduct. Compare doc.
43-3 at 5:00 (Monterey operator asks Stein, “What’s a good home phone number
for you?”) with doc. 69-2 at 6 (Monterey internal memorandum directing callers to
ask, “Is this a valid contact number?”). Furthermore, even if Monterey callers
asked each debtor the same question, whether a debtor perceived his or her answer
to that question as providing consent to receive subsequent calls is an
individualized inquiry that would require the court to ascertain each debtor’s
interpretation, or understanding, of that question. The facts of Stein’s own TCPA
claim exemplify the context-specific nature of consent and undergirded this court’s
denial of Monterey’s summary judgment motion:
[I]t is not exactly clear that Stein consented to the calls. Rather, the
evidence shows only that immediately after Stein called and explained
that she had never ordered anything from the creditor and wanted to
know “what was on her account,” the [Monterey] representative asked
Stein for a “good home phone number” to reach her. Whether in
providing her number, Stein was simply facilitating the process of
learning more about the purportedly mysterious entry on her credit
report — or, alternatively, consenting to receiving collection calls —
is an issue best left for a factfinder.
Doc. 50 at 8–9 (record citations omitted). Because this court would have to
examine consent — a defense Monterey intends to raise against every class
member — on a person-by-person basis, certification is not proper under Rule
23(b)(3), which requires that “questions of law or fact common to class members
predominate over any questions affecting only individual members.” See Fed. R.
14

Civ. P. 23(b)(3); see also Sacred Heart Health Sys. v. Humana Military Healthcare
Servs., 601 F.3d 1159, 1170 (11th Cir. 2010) (“A plaintiff may claim that every
putative class member was harmed by the defendant’s conduct, but if . . . the
defendant has non-frivolous defenses to liability that are unique to individual class
members, any common questions may well be submerged by individual ones.”);
Gene & Gene L.L.C. v. BioPay L.L.C., 541 F.3d 318, 326–29 (5th Cir. 2008)
(reversing class certification predicated on defendant’s “common course of
conduct, fax blasting,” where the district court “did not explain how th[is] common
course of conduct . . . would affect a trial on the merits,” and where a trial would in
fact require individualized proof as to whether each class member had consented to
receipt of faxes).
In light of all of the foregoing, the court will not proceed to analyze the
remainder of the requirements set forth under Rules 23(a) and 23(b)(3). See
Bennett v. Hayes Robertson Group, Inc., 880 F. Supp. 2d 1270, 1282 (S.D. Fla.
2012) (“Because the Court is not satisfied that all of the elements of Rule 23(a)
have been met, it need not shift to an analysis under Rule 23(b)(3).”); Adair v.
Johnston, 221 F.R.D. 573, 578 (M.D. Ala. 2004) (“Because Adair’s putative class
is not adequately definite and ascertainable, class certification should be denied.
The court need not reach whether Adair’s putative class would satisfy the other
requirements of [Rule] 23.”).
15

IV.

CONCLUSION AND ORDER

In light of Stein’s failure to show that the proposed class is clearly
ascertainable, that her claims are typical of those of the group of claimants she
seeks to represent, and that common questions predominate over individualized
consent issues, the motion for class certification, doc. 63, is DENIED.
DONE the 31st day of January, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

16

EXHIBIT A
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
PRE-TRIAL DOCKET
HON. ABDUL K. KALLON, PRESIDING
BIRMINGHAM, ALABAMA
This case is set for a pre-trial hearing pursuant to Rule 16 of the Federal
Rules of Civil Procedure. A conference-type hearing will be held in chambers in
the Hugo Black Federal Courthouse in Birmingham, Alabama at the time
indicated.
The hearing will address all matters provided in Rule 16, including the
limitation of issues requiring trial, rulings on pleading motions, and settlement
possibilities.
Counsel attending the conference are expected to be well-informed about the
factual and legal issues of the case, and to have authority to enter appropriate
stipulations and participate in settlement discussions. Counsel appearing at the
conference will be required to proceed at trial notwithstanding the naming of
others as designated trial counsel.
Promptly upon receipt of this notice, plaintiff’s counsel is to initiate
discussions with other counsel aimed at ascertaining which basic facts are not in
dispute, at clarifying the parties’ contentions (for example, just what is denied
under a “general denial”) and at negotiating workable procedures and deadlines for
remaining discovery matters. At least four (4) business days in advance of the
conference, plaintiff’s counsel is to submit to chambers (via email at
[e-mail]) a proposed Pre-trial Order inWordPerfect
format, furnishing other counsel with a copy. It is anticipated that in most cases the
proposed order, with only minor insertions and changes, could be adopted by the
court and signed at the close of the hearing.
A sample of a proposed Pre-trial Order is available on the Chamber web site
(http://www.alnd.uscourts.gov/content/judge-abdul-k-kallon) to illustrate the
format preferred by the court and also to provide additional guidance and
17

instructions. Each order must, of course, be tailored to fit the circumstances of the
individual case.
Counsel drafting this proposed order should consider the utility this
document will provide for the litigants, the jury, and the court alike. The court
anticipates using the pretrial order to (1) identify and narrow the legal and factual
issues remaining for trial, and (2) provide jurors with the legal and factual context
of the dispute. This order should not revisit at length arguments made in previous
filings with the court, nor should it serve as another venue for adversarial
posturing. Pretrial orders should be simple, short, and informative.
IN ANY CASE WHERE COUNSEL HAVE ANNOUNCED
SETTLEMENT TO THE COURT, A CONSENT JUDGMENT IN
SATISFACTORY FORM MUST BE PRESENTED TO THE COURT PRIOR TO
THE SCHEDULED TRIAL DATE; OTHERWISE, THE CASE WILL BE
DISMISSEDWITH PREJUDICE.

18