Singh v. Wells Fargo Bank N.A., d/b/a Wells Fargo Home Mortgage et al
Filing
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ORDER signed by Magistrate Judge John F. Moulds on 5/3/2011 ORDERING that Plaintiff's request for appointment of expert is DENIED; Motion Hearing RESET for 7/14/2011 at 11:00 AM in Courtroom 26 before Magistrate Judge John F. Moulds, Initial Scheduling Conference RESET for 9/8/2011 at 11:00 AM in Courtroom 26 before Magistrate Judge John F. Moulds. (Waggoner, D)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BALBIR SINGH,
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Plaintiff,
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No. CIV 2:11-cv-0401-GEB-JFM (PS)
vs.
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WELLS FARGO BANK N.A., d.b.a.
WELLS FARGO HOME MORTGAGE,
et al.,
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Defendants.
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ORDER
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This action was referred to the undersigned pursuant to Local Rule 302(c)(21).
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On February 23, 2011, defendant Wells Fargo Bank N.A. dba Wells Fargo Home Mortgage filed
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a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and a motion for more definite
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statement. On February 25, 2011, defendant Provident Savings Bank filed a joinder to both
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motions. On April 20, 2011, plaintiff filed an ex parte application for appointment of expert. On
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April 27, 2011, plaintiff filed an opposition to defendants’ motions.
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A.
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Failure to File a Timely Opposition
Local Rule 230(c) provides that opposition to the granting of a motion must be
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filed fourteen days preceding the noticed hearing date. The Rule further provides that “[n]o party
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will be entitled to be heard in opposition to a motion at oral arguments if written opposition to
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the motion has not been timely filed by that party.” In addition, Local Rule 230(i) provides that
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failure to appear may be deemed withdrawal of opposition to the motion or may result in
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sanctions. Finally, Local Rule 110 provides that failure to comply with the Local Rules “may be
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grounds for imposition of any and all sanctions authorized by statute or Rule or within the
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inherent power of the Court.”
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Plaintiff filed an opposition on April 27, 2011, less than fourteen days before the
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May 5, 2011 hearing on the motion to dismiss and motion for more definite statement.
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Accordingly, the hearing on defendants’ motions shall be continued.
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B.
Appointment of Expert
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Plaintiff also filed an ex parte application for appointment of an expert. Plaintiff
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seeks appointment of an individual from the Federal Bureau of Investigation to serve as an expert
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“for a detailed review of the Complaint.” Plaintiff requests that this appointed expert “advise the
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Court and testify on the Plaintiff’s behalf . . . .”
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The district court has discretion to appoint an expert pursuant to Rule 706(a) of
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the Federal Rules of Evidence, which reads, in part: “The court may on its own motion or on the
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motion of any party enter an order to show cause why expert witnesses should not be
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appointed....” Fed. R. Evid. 706(a); Walker v. American Home Shield Long Term Disability
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Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (“district court ... has the discretion to appoint an
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expert sua sponte under Federal Rule of Evidence 706(a)”). Pursuant to Rule 702, “If scientific,
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technical, or other specialized knowledge will assist the trier of fact to understand the evidence or
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to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
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training, or education, may testify thereto in the form of an opinion or otherwise ....” Fed. R.
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Evid. 702.
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However, “[r]easonably construed, Rule 706 does not contemplate the
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appointment of, and compensation for, an expert to aid one of the parties.” Gamez v. Gonzalez,
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2010 WL 2228427, *1 (E.D. Cal. June 3, 2010) (internal quotations, punctuation and citations
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omitted). Rather, the principal purpose of a court-appointed expert is to assist the trier of fact,
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not to serve as an advocate. As such, district courts have authority to appoint neutral expert
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witnesses sua sponte, whether or not either party agrees, and may assess the cost of the expert as
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the court deems appropriate. Students of California School for the Blind v. Honig, 736 F.2d 538,
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549 (9th Cir. 1984) (citing Fed. R. Evid. 706), vacated on other grounds, 471 U.S. 148 (1985).
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Here, plaintiff requests appointment and payment of an expert witness to serve as
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his advocate in this action. Because there is no authority for granting this request, the motion
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will be denied.
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Good cause appearing, IT IS HEREBY ORDERED that:
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1. Plaintiff’s request for appointment of expert is denied;
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2. The hearing date of May 5, 2011 is vacated. Hearing on defendants’ motion to
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dismiss and motion for more definite statement is continued to July 14, 2011 at 11:00 a.m. in
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courtroom no. 26.
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3. The initial scheduling conference scheduled for July 14, 2011 is continued to
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September 8, 2011 at 11:00 a.m. in courtroom # 26.
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DATED: May 3, 2011.
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