Terry Green, et al vs Creditor Iustus Et Remedium

Filing 33

PRETRIAL ORDER, signed by Magistrate Judge Jennifer L. Thurston on 1/9/2015. Deadlines: Motions in Limine Filing 2/6/2015; Opposition to Motions in Limine 2/20/2015. Hearing on Motions in Limine set for 3/2/2015 at 10:30 AM at 510 19th Street (JLT), Bakersfield. Trial Submissions 3/6/2015. Jury Trial confirmed for 3/17/2015 at 08:30 AM at 510 19th Street (JLT), Bakersfield, before Magistrate Judge Jennifer L. Thurston. (Hall, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 ) ) ) Plaintiffs, ) v. ) ) ) CREDITOR IUSTUS ET REMEDIUM, LLP ) ) d/b/a/ CIR LAW OFFICES, LLP, ) ) Defendant. ) ) TERRY GREEN, et al, 19 Case No.: 1:13-cv-01414 JLT PRETRIAL ORDER Deadlines: Motions in Limine Filing: 2/6/2015 Oppositions to Motions in Limine: 2/20/2015 Hearing on Motions in Limine: 3/2/15, 10:30 a.m. Trial Submissions: March 6, 2015 Jury trial: 3/17/2015, 8:30 A.M. Plaintiffs, Terry Green and Charles Witcher, claim that Defendant engaged in unlawful debt 20 collection activities. They assert claims under the Fair Debt Collection Practices Act and California’s 21 Rosenthal Act. Upon consideration of the Joint Pre-Trial Conference Statement (Doc. 31), the parties’ 22 23 comments at the hearing on January 7, 2015, and the file in this case, the Court issues the following 24 Pre-Trial Order. 25 A. 26 JURISDICTION/ VENUE The Court has jurisdiction over the claims in this action pursuant to 42 U.S.C. § 1983 and 28 27 U.S.C. § 1367(a). (Doc. 1 at 4-5; Doc. 48 at 2.) Further, Plaintiff’s claims arise out of events that 28 occurred in Kern County, California. Accordingly, venue is proper in the United States District Court 1 1 for the Eastern District of California sitting in Bakersfield. See 28 U.S.C. § 1391. 2 B. JURY TRIAL Plaintiff included a demand for jury trial in the Complaint. (Doc. 2 at 7) Thus, trial will be by 3 4 jury. 5 C. UNDISPUTED FACTS 6 1. Plaintiffs are natural persons residing in the State of California, County of Kern. 7 2. Defendant at all times relevant was a limited liability partnership doing business of 8 collecting debts in Kern County, California operating from an address at 8665 Gibbs Dr., Suite 150, 9 San Diego, CA 92123. 3. 10 11 Defendant is engaged in the collection of debts from consumers using the mail and telephone. 12 4. Defendant regularly attempts to collect consumer debts alleged to be due to another. 13 5. Defendant is a “debt collector” as defined by the FDCPA, 15 U.S.C. §1692a(6). 14 6. Plaintiffs are “consumers” as defined by the FDCPA, 15 U.S.C. 1692a(3). 15 7. The purported debt that Defendants attempted to collect from Plaintiffs was a “debt” as 16 defined by the FDCPA, 15 U.S.C. §1692a(5). 17 8. Defendant contacted both Plaintiffs in an attempt to collect the Debt. 18 9. Defendant CIR was a debt collector. 19 10. Both Plaintiffs communicated with Defendant CIR about the subject consumer debt. 20 11. Jomo Ivory, Marisol Ward and AlmaSweezy were all debt collectors working for CIR 21 that spoke with either or both Plaintiffs, Terry Green and Charles Witcher. 12. 22 Recordings of phone calls between debt collectors at CIR and Terry Green show that 23 Plaintiff Terry Green requested that collectors from CIR call her on her cell phone while she was at 24 work during her lunch break. 25 D. DISPUTED FACTS 26 1. Defendant called with such frequency and persistence as to constitute harassment for 27 over two months. 28 2. Defendant called both Plaintiffs on a near daily basis. 2 1 3. Defendant called Ms. Green approximately once a day for approximately two months. 2 4. Defendant called Mr. Witcher approximately once a day for approximately two months. 3 5. Defendant called Ms. Green while she was working. 4 6. Ms. Green requested Defendant to stop calling her during her work hours. 5 7. Defendant ignored Ms. Green’s request and continued to call her. 6 8. Defendant told Mr. Witcher that although he is drawing social security it was “not that 7 safe” or words to that effect. 8 9. Defendant implied that it could garnish Mr. Witcher’s social security income. 9 10. Defendant stated that it could “mess up” Mr. Witcher’s credit and also “mess his life 10 11 12 up” or words to that effect. 11. Defendant stated that they were aware that Mr. Witcher owned a home and implied that Defendant would be able to put the house up for auction and take the house or words to that effect. 13 12. As a result of the acts alleged above, Plaintiffs suffered emotional distress and worry. 14 13. Plaintiff Terry Green told a debt collector at CIR not to call her at work. 15 14. A debt collector at CIR, Jomo Ivory, told Plaintiff, Charles Witcher, that his social 16 security benefits could be attached, “mess up his life,” or “put his house up for auction” in order to 17 satisfy the debt in question. 18 19 15. Both Plaintiffs, Terry Green and Charles Witcher, owed a consumer debt that was the subject of collection attempts by Defendant CIR. 20 16. Both Plaintiffs agreed to pay the subject debt. 21 17. Plaintiff Terry Green did not have a land line telephone but only a cell phone. 22 23 24 25 26 27 28 Plaintiff Terry Green never told CIR not to call her on her cell phone to discuss the debt. 18. Recordings were made of some but not all of the phone calls between debt collectors with CIR and both Plaintiffs. 19. None of the recordings made contain a statement by Terry Green telling collectors from CIR not to call her while she was at work. 20. None of the recordings of phone calls between Plaintiff Charles Witcher and collectors at CIR discuss Plaintiff Witcher’s social security benefits. 3 21. 1 All of the above-named collectors went through in-house training before speaking to 2 either or both Plaintiffs about their debt. 3 E. None at this time 4 5 DISPUTED EVIDENTIARY ISSUES F. SPECIAL FACTUAL INFORMATION Both Plaintiffs allege to have suffered emotional distress and worry as a result of the collection 6 7 efforts. Plaintiffs are not claiming any medical expenses. Defendant denies any damages or 8 emotional distress was suffered as a result of the debt collection efforts. 9 G. RELIEF SOUGHT Plaintiffs seek actual damages which includes, but is not limited to, emotional distress and 10 11 damage to reputation. Plaintiff also seek statutory damages pursuant to 15 U.S.C. §1692k, costs and 12 reasonable attorney’s fees pursuant to 15 U.S.C. §1692k and for such other and further relief as the 13 Court may deem just and proper. 14 H. 15 POINTS OF LAW Under the provisions of the Fair Debt Collection Practices Act (“FDCPA”), debt collectors are 16 prohibited “from making false or misleading representations and from engaging in various abusive and 17 unfair practices.” Heintz v. Jenkins, 514 U.S. 291, 292 (1995); Donohue v. Quick Collect, Inc., 592 18 F.3d 1027, 1030 (9th Cir. 2010). California’s Rosenthal Fair Debt Collection Practices Act (“Rosenthal 19 Act”), “like its federal counterpart, is designed to protect consumers from unfair and abusive debt 20 collection practices.” Robinson v. Managed Accounts Receivable Corp., 654 F.Supp.2d 1051, 1060 21 (C.D. Cal. 2009) (citing Cal. Civ. Code § 1788.1). The provisions of FDCPA are incorporated into the 22 Rosenthal Act under Cal. Civ. Code § 1788.17. Consequently, conduct by a debt collector that violates 23 the FDCPA violates Rosenthal Act as well. See Hosseinzadeh v. M.R.S. Assocs., 387 F. Supp. 2d 1104, 24 1118 (C.D. Cal. 2005); Abels v. JBC Legal Group, P.C., 227 F.R.D. 541, 548 (N.D. Cal. 2005). 25 To establish a violation of the FDCPA and the Rosenthal Act, Plaintiffs must prove: (1) they 26 were consumers (2) who were the object of a collection activity arising from a consumer debt, and (3) 27 the defendant is a “debt collector,” (4) who engaged in an act or omission prohibited by the FDCPA or 28 Rosenthal Act. Miranda v. Law Office of D. Scott Carruthers, 2011 WL 2037556, at *4 (E.D. Cal. May 4 1 23, 2011) (citing Turner v. Cook, 362 F.3d 1219, 1227-28 (9th Cir. 2004)). 2 FDCPA defines the term “debt collector” as including: (1) “any person who uses any 3 instrumentality of interstate commerce or the mails in any business the principal purpose of which is 4 the collection of any debts,” and (2) any person “who regularly collects or attempts to collect, directly 5 or indirectly, debts owed or due or asserted to be owed or due to another.” 15 U.S.C. § 1692a(6). The Rosenthal Act definition of “debt collector” “broader than that contained in the FDCPA.” 6 7 Izenberg v. ETS Servs., LLC, 589 F. Supp.2d 1193, 1199 (C.D. Cal. 2008). Under the Rosenthal Act, a 8 “debt collector” is defined as “any person who, in the ordinary course of business, regularly, on behalf 9 of himself or herself or others, engages in debt collection.” Cal. Civ. Code § 1788.2(c). 10 I. None 11 12 ABANDONDED ISSUES J. WITNESSES The following is a list of witnesses that the parties expect to call at trial, including rebuttal and 13 14 impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS SECTION, 15 MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A SHOWING 16 THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. 17 Civ. P. 16(e); Local Rule 281(b)(10). 18 Plaintiffs’ Witness List: 19 a) Terry Green 20 b) Charles Witcher 21 c) Tara Muren 22 d) Jomo Ivory 23 e) Kathy Rossman 24 f) Benny Witcher 25 g) Linda Barona 26 h) Jerry Burell 27 i) Vernon Rhodes 28 /// 5 1 Defendant’s Witness List: 2 a) Tara Muren, Esq. 3 b) Jomo Ivory 4 c) Alma Sweezey 5 d) Elizabeth Del Castillo 6 e) Mary Kilgore 7 f) Amanda Cinq-Mars 8 g) Lauren Campos 9 h) Kaitlin Garland 10 11 K. EXHIBITS, SCHEDULES AND SUMMARIES The following is a list of documents or other exhibits that the parties expect to offer at trial. 12 NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED 13 UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE 14 MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(11). 15 16 a) Summons and complaint in underlying action, GE Capital Retail Bank v. Green, Case No. S-1500-CL-277097. 17 b) CIR Employee Handbook 18 c) SOP: Employee Discipline Policy 19 d) SOP: Collector Training 20 e) SOP: FDCPA Training 21 f) Debtor Work Card (Account Notes) 22 g) Call recordings 23 h) Plaintiffs’ Interrogatories 24 i) Defendant’s Responses to Interrogatories 25 j) Plaintiffs’ Requests for Admissions 26 k) Defendant’s Responses to Requests for Admissions 27 l) Plaintiffs’ Requests for Production of Documents 28 m) Defendant’s Responses to Requests for Production of Documents 6 1 n) Notice of Deposition of Defendant 2 o) Deposition of Tara Muren 3 The parties indicate they will seek a protective order for some of the exhibits. Counsel are ordered to confer no later January 16, 2015, for purposes of pre-marking and 4 5 examining each other's exhibits. 1. 6 At the exhibit conference, counsel will determine whether there are objections to the 7 admission of each of the exhibits and will prepare separate indexes; one listing joint exhibits, one 8 listing Plaintiff’s exhibits and one listing Defendant’s exhibits. In advance of the conference, counsel 9 must have a complete set of their proposed exhibits in order to be able to fully discuss whether 10 evidentiary objections exist. Thus, any exhibit not previously provided in discovery SHALL be 11 provided at least five court days in advance of the exhibit conference. 2. 12 At the conference, counsel shall identify any duplicate exhibits, i.e., any document 13 which both sides desire to introduce into evidence. These exhibits SHALL be marked as a joint 14 exhibit and numbered as directed above. Joint exhibits SHALL be admitted into without further 15 foundation. All Joint exhibits will be pre-marked with numbers preceded by the designation “JT” (e.g. 16 17 JT/1, JT/2, etc.). Plaintiff’s exhibits will be pre-marked with numbers beginning with 1 by the 18 designation PX (e.g. PX1, PX2, etc.). Defendant’s exhibits will be pre-marked with numbers 19 beginning with 501 preceded by the designation DX (e.g. DX501, DX502, etc.). The Parties SHALL 20 number each page of any exhibit exceeding one page in length (e.g. PX1-1, PX1-2, PX1-3, etc.). If originals of exhibits are unavailable, the parties may substitute legible copies. If any 21 22 document is offered which is not fully legible, the Court may exclude it from evidence. Each joint exhibit binder shall contain an index which is placed in the binder before the 23 24 exhibits. The index shall consist of a column for the exhibit number, one for a description of the 25 exhibit and one column entitled “Admitted in Evidence” (as shown in the example below). 26 /// 27 /// 28 /// 7 INDEX OF EXHIBITS 1 2 3 EXHIBIT# 3. 4 ADMITTED IN EVIDENCE DESCRIPTION As to any exhibit which is not a joint exhibit but to which there is no objection to its 5 introduction, the exhibit will likewise be appropriately marked, i.e., as PX1, or as DX501 and will be 6 indexed as such on the index of the offering party. Such exhibits will be admitted upon introduction 7 and motion of the party, without further foundation. 4. 8 9 10 Each exhibit binder shall contain an index which is placed in the binder before the exhibits. Each index shall consist of the exhibit number, the description of the exhibit and the three columns as shown in the example below. INDEX OF EXHIBITS 11 12 13 EXHIBIT# 5. 14 15 DESCRIPTION ADMITTED IN EVIDENCE OBJECTION FOUNDATION OTHER OBJECTION On the index, as to exhibits to which the only objection is a lack of foundation, counsel will place a mark under the column heading entitled “Admissible but for Foundation.” 6. 16 On the index, as to exhibits to which there are objections to admissibility that are not 17 based solely on a lack of foundation, counsel will place a mark under the column heading entitled 18 “Other Objections.” 19 After the exhibit conference, each counsel SHALL develop four complete, legible sets of 20 exhibits. Counsel SHALL deliver three sets of their exhibit binders to the Courtroom Clerk and 21 provide one set to opposing counsel, no later than 4:00 p.m., on February 6, 2015. Counsel SHALL 22 determine which of them will also provide three sets of the joint exhibits to the Courtroom Clerk. 7. 23 24 25 L. The Parties SHALL number each page of any exhibit exceeding one page in length. DISCOVERY DOCUMENTS The following is a list of discovery documents – portions of depositions, answers to 26 interrogatories, and responses to requests for admissions – that the parties expect to offer at trial. 27 NO DISCOVERY DOCUMENT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE 28 ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER 8 1 SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local 2 Rule 281(b)(12). 3 Plaintiff anticipates offering the following discovery documents at trial: 4 1. Deposition transcript of Tara Muren 5 2. Defendant’s responses to interrogatories 6 3. Defendant’s responses to requests for admission 7 4. Defendant’s responses requests for production of documents 8 Defendant anticipates offering the following discovery documents at trial: 9 1. Plaintiffs’ responses to Request for Admissions (Set One) 10 2. Plaintiffs’ responses to Request for Production of Documents (Set One) 11 3. Plaintiffs’ responses to Interrogatories (Set One). 12 If either party wishes to rely upon discovery documents or deposition transcripts at trial, they SHALL 13 lodge the original discovery requests and responses and/or the original or certified copy of the pertinent 14 transcripts, no later than February 6, 2015. If the proffering party wishes the jury to view the discovery 15 document, only the request and response at issue may be visible on the page(s) and all extraneous 16 material must be redacted or the request and the response re-typed on a clean page.1 17 M. No further discovery is sought by either party. 18 19 FURTHER DISCOVERY OR MOTIONS N. MOTIONS IN LIMINE Any party may file motions in limine. The purpose of a motion in limine is to establish in 20 21 advance of the trial that certain evidence should not be offered at trial. “Although the Federal Rules of 22 Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the 23 district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 24 40 n. 2 (1984); Jonasson v. Lutheran Child and Family Services, 115 F. 3d 436, 440 (7th Cir. 1997). 25 The Court will grant a motion in limine, and thereby bar use of the evidence in question, only if the 26 moving party establishes that the evidence clearly is not admissible for any valid purpose. Id. 27 28 1 Counsel should have at least two extra copies of the redacted version for review by the Court and opposing counsel before publication is allowed 9 In advance of filing any motion in limine, counsel SHALL meet and confer to determine 1 2 whether they can resolve any disputes and avoid filing motions in limine. Along with their 3 motions in limine, the parties SHALL file a certification demonstrating counsel have in good 4 faith met and conferred and attempted to resolve the dispute. Failure to provide the 5 certification may result in the Court refusing to entertain the motion. Any motions in limine must be served on the other party and filed with the Court by February 6 7 6, 2015. The motion must clearly identify the nature of the evidence that the moving party seeks to 8 prohibit the other side from offering at trial. Any opposition to the motion must be served on the other 9 party, and filed with the Court by February 20, 2015. The Court sets a hearing on the motions in 10 limine on March 2, 2015 at 10:30 a.m. Appearances via Courtcall are authorized. The parties are reminded they may still object to the introduction of evidence during trial. 11 12 O. The parties have not agreed upon any stipulations at this time. 13 14 P. AMENDMENTS/ DISMISSALS None at this time. 15 16 STIPULATIONS Q. SETTLEMENT NEGOTIATIONS The parties report that the court-sponsored settlement conference failed and Defendant has 17 18 served a Rule 68 offer lapsed and is deemed rejected. 19 R. None 20 21 S. T. APPOINTMENT OF IMPARTIAL EXPERTS None requested. 24 25 SEPARATE TRIAL OF ISSUES None. 22 23 AGREED STATEMENT U. ATTORNEYS’ FEES If successful at trial, Plaintiff will seek an award of attorneys’ fees according to 15 U.S.C. § 26 27 1692k. 28 /// 10 1 V. TRIAL DATE/ ESTIMATED LENGTH OF TRIAL Jury trial is set for March 17, 2015, at 8:30 a.m. before the Honorable Jennifer L. Thurston at 2 3 the United States Courthouse, 510 19th Street, Bakersfield, California. Trial is expected to last no 4 longer than 2-3 days. 5 W. TRIAL PREPARATION AND SUBMISSIONS 6 1. 7 The parties are relieved of their obligation under Local Rule 285 to file trial briefs. If any party 8 wishes to file a trial brief, they must do so in accordance with Local Rule 285 and be filed on or before 9 March 6, 2015. 10 2. 11 The parties are required to file their proposed voir dire questions, in accordance with Local 12 Trial Briefs Jury Voir Dire Rule 162.1, on or before March 6, 2015. 13 3. 14 The parties SHALL file a joint non-argumentative, brief statement of the case which is 15 Statement of the Case suitable for reading to the jury at the outset of jury selection on or before March 6, 2015. 16 4. Jury Instructions & Verdict Form 17 The parties shall serve, via e-mail or fax, their proposed jury instructions in accordance with 18 Local Rule 163 and their proposed verdict form on one another no later than February 6, 2015. The 19 parties shall conduct a conference to address their proposed jury instructions and verdict form no later 20 than February 27, 2015. At the conference, the parties SHALL attempt to reach agreement on jury 21 instructions and verdict form for use at trial. The parties shall file all agreed-upon jury instructions and 22 verdict form no later than March 6, 2015, and identify such as the agreed-upon jury instructions and 23 verdict forms. At the same time, the parties SHALL lodge via e-mail a copy of the joint jury 24 instructions and joint verdict form (in Word format) to JLTOrders@caed.uscourts.gov. 25 If and only if, the parties after genuine, reasonable and good faith effort cannot agree upon 26 certain specific jury instructions and verdict form, the parties shall file their respective proposed 27 (disputed) jury instructions and proposed (disputed) verdict form no later than March 6, 2015, and 28 identify such as the disputed jury instructions and verdict forms. At the same time, the parties 11 1 SHALL lodge via e-mail, a copy of his/their own (disputed) jury instructions and proposed (disputed) 2 verdict form (in Word format) to JLTOrders@caed.uscourts.gov. 3 In selecting proposed instructions, the parties shall use Ninth Circuit Model Civil Jury 4 Instructions or California’s CACI instructions to the extent possible. All jury instructions and verdict 5 forms shall indicate the party submitting the instruction or verdict form (i.e., joint, plaintiff’s, 6 defendant’s, etc.), the number of the proposed instruction in sequence, a brief title for the instruction 7 describing the subject matter, the complete text of the instruction, and the legal authority supporting 8 the instruction. Each instruction SHALL be numbered. 9 W. OBJECTIONS TO PRETRIAL ORDER 10 Any party may, within 10 days after the date of service of this order, file and serve written 11 objections to any of the provisions set forth in this order. Such objections shall clearly specify the 12 requested modifications, corrections, additions or deletions. 13 X. None. 14 15 16 MISCELLANEOUS MATTERS Y. COMPLIANCE Strict compliance with this order and its requirements is mandatory. All parties and their 17 counsel are subject to sanctions, including dismissal or entry of default, for failure to fully comply 18 with this order and its requirements. 19 20 21 22 IT IS SO ORDERED. Dated: January 9, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 12

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