Martin v. Litton Loan Servicing LP

Filing 221

FINAL PRETRIAL ORDER signed by District Judge Morrison C. England, Jr on 4/25/17: Plaintiff's Motion for an Extension of Time and a New Date for Trial (ECF No. 218) is DENIED. Defendant's Motion to Strike and Motions in Limine are GRANTED as unopposed. Bench Trial set for 5/22/2017 at 09:00 AM in Courtroom 7 (MCE) before District Judge Morrison C. England Jr.. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RENEE L. MARTIN,

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No. 12-cv-00970-MCE-EFB

Plaintiff,
v.

FINAL PRETRIAL ORDER

LITTON LOAN SERVICING LP, et al.,
Defendants.

TRIAL DATE: May 22, 2017
TIME: 9:00 a.m.

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Pursuant to Court Order dated April 3, 2017, the Final Pretrial Conference

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previously scheduled for April 6, 2017, was VACATED after pro se Plaintiff Renee L.

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Martin (“Plaintiff”) failed to file a trial brief, exhibit lists, witness lists, motions in limine, or

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oppositions to the sole remaining Defendant Ocwen Loan Servicing LLC’s (“Defendant”)

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Motion to Strike (ECF No. 204) or Motions in Limine (ECF Nos. 205-208) as required by

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the Court’s Pretrial Scheduling Order (“PTSO”). See ECF Nos. 197, 211. Plaintiff was

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also ordered to show cause (“OSC”) why the remaining claims should not be dismissed

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for failure to prosecute or to comply with the rules or a court order. See ECF No. 211.

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Plaintiff responded by providing physician’s notes indicating without explanation that she

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had been placed off of work for several weeks beginning on March 8, 2017. ECF No

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213. She also subsequently filed purported oppositions to two of Defendant’s motions in

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limine and a motion to continue the trial. ECF Nos. 216-18. To date, Plaintiff has made
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no attempt to designate any witnesses or exhibits for trial, nor has she opposed

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Defendant’s Motion to Strike.

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Plaintiff’s response is wholly insufficient to warrant continuation of any of the

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dates previously set by this Court. Once a district court has issued a PTSO pursuant to

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Federal Rule of Civil Procedure 16, that Rule’s standards control. Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992). Prior to the final pretrial

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conference in this matter the Court can modify its PTSO upon a showing of “good

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cause.” See Fed. R. Civ. P. 16(b). “Rule 16(b)’s ‘good cause’ standard primarily

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considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609.

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In explaining this standard, the Ninth Circuit has stated:

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A district court may modify the pretrial schedule ‘if it cannot
reasonably be met despite the diligence of the party seeking
the extension.’ Moreover, carelessness is not compatible
with a finding of diligence and offers no reason for granting of
relief. Although the existence or degree of prejudice to the
party opposing the modification might supply additional
reasons to deny a motion, the focus of the inquiry is upon the
moving party’s reasons for seeking modifications. If that
party was not diligent, the inquiry should end.

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Id. (citations omitted). Plaintiff has not even attempted to show that she was diligent in

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seeking to continue the trial date. Nor has she shown substantive good cause

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necessitating more time. Accordingly, Plaintiff’s Motion for an Extension of Time and a

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New Date for Trial (ECF No. 218) is DENIED. Her oppositions to Defendant’s Motions in

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Limine (ECF Nos. 216-217) and her Trial Brief (ECF No. 214) are STRICKEN, and

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Defendant’s Motion to Strike and Motions in Limine are GRANTED as unopposed.1

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Based on Plaintiff’s Response to Order to Show Cause (ECF No. 215), however,

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the Court will nonetheless discharge the OSC and confirm this matter for trial. Having

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reviewed the docket in its entirety, the Court makes the following findings and orders:

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Alternatively, the Court finds the Motions supported by the law and the record in this case such
that they should be granted on the merits as well.

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I.

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JURISDICTION/VENUE
Jurisdiction is predicated upon 28 U.S.C. § 1331. Jurisdiction and venue are not

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contested.

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II.

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NON-JURY
The Court granted above Defendant’s unopposed Motion to Strike Plaintiff’s Jury

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Demand. See ECF No. 204. Accordingly, this matter will be tried by the Court.

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III.

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UNDISPUTED FACTUAL ISSUES
The parties have not stipulated to any facts.

IV.

DISPUTED FACTUAL ISSUES

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The remaining claims for trial are:

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A.

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Plaintiff’s Disputed Facts
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Plaintiff disputes that Ocwen is not a debt collector by

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correspondence from Ocwen to Plaintiff identifying itself as a debt

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collector.

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2.
B.

Plaintiff disputes all of Ocwen’s facts.

Defendant’s Disputed Facts

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1.

Ocwen’s serviced debt is not a “debt” covered by the FDCPA.

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2.

Ocwen did not make repeated, harassing and abusive calls to

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Plaintiff for the purposes of debt collection.
3.

Ocwen made calls to Plaintiff to make initial contact with its new

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customer and offer her the opportunity to discuss her foreclosure

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prevention alternatives.

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4.

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Plaintiff to discuss the foreclosure prevention alternatives.
5.

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Ocwen made calls to Plaintiff because it was not able to reach

Defendant did not make calls to Plaintiff without notifying who the
caller was in a meaningful manner.

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Once Plaintiff requested that Ocwen stop calling her, Ocwen
ceased making calls.
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policies and procedure in place to avoid such violations.

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If a violation did occur, it was a bona fide error because Ocwen has

All issues of fact remaining in dispute are subject to proof at the time of trial.
V.

WITNESSES

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Plaintiff has not designated any witnesses.

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Defendant anticipates calling the witnesses listed on Attachment “A”.

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Each party may call a witness designated by the other.

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A.

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No other witnesses will be permitted to testify unless:
(1)

The party offering the witness demonstrates that the witness is

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for the purpose of rebutting evidence which could not be reasonably anticipated

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at the Final Pretrial Conference, or

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(2)

The witness was discovered after the Final Pretrial Conference

and the proffering party makes the showing required in “B” below.
B.

Upon the post-pretrial discovery of witnesses, the attorney2 shall promptly

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inform the Court and opposing parties of the existence of the unlisted witnesses so that

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the Court may consider at trial whether the witnesses shall be permitted to testify. The

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evidence will not be permitted unless:

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(1)

(2)

The Court and the opposing counsel were promptly notified upon

pretrial;

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The witnesses could not reasonably have been discovered prior to

discovery of the witnesses;

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(3)

If time permitted, counsel proffered the witnesses for deposition;

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(4)

If time did not permit, a reasonable summary of the witnesses’

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testimony was provided by opposing counsel or the pro se party.
C.

All witnesses, other than parties who will testify as witnesses, are to remain

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outside the courtroom until called to testify unless otherwise ordered by the Court.

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Witnesses who fail to comply with this order may be precluded from testifying.

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References to “attorney” or “counsel” shall be interpreted to refer to pro se parties as well.

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VI.

EXHIBITS - SCHEDULES AND SUMMARIES

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At present, Plaintiff has not designated any exhibits.

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At present, Defendant contemplates by way of exhibits those listed on Attachment

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“B”.
Defendant's exhibits shall be listed alphabetically. The parties shall use the

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standard exhibit stickers provided by the Court Clerk’s Office (blue for Defendant). After

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three letters, note the number of letters in parenthesis (i.e., “AAAA(4)” to reduce

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confusion during the trial. Exhibits shall be one-sided only, and all multi-page exhibits

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shall be stapled or otherwise fastened together with each page within the exhibit shall be

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numbered. All photographs shall be marked individually. The list of exhibits shall not

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include excerpts of depositions which may be used to impeach witnesses.

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Each party may use an exhibit designated by the other.

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A.

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No other exhibits will be permitted to be introduced unless:
(1)

The party proffering the exhibit demonstrates that the exhibit is

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for the purpose of rebutting evidence which could not be reasonably anticipated

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at the Pretrial Scheduling Conference, or

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(2)

The exhibit was discovered after the Pretrial Scheduling

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Conference and the proffering party makes the showing required in paragraph

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“B”, below.

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B.

Upon the post-pretrial discovery of exhibits, the parties shall promptly

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inform the Court and opposing counsel of the existence of such exhibits so that the

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Court may consider at trial their admissibility. The exhibits will not be received unless

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the proffering party demonstrates:

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(1)

The exhibits could not reasonably have been discovered prior to

(2)

The Court and the opposing party’s counsel were promptly informed

pretrial;

of their existence;
(3)

The party or the party’s counsel forwarded a copy of the exhibit(s) (if
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physically possible) to opposing counsel. If the exhibit(s) may not be copied, the

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proffering party must show that he has made the exhibit(s) reasonably available for

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inspection by the opposing counsel.

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C.

As to each exhibit, each party is ordered to exchange a copy identical to

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the Court’s copy, or other reproduction of the exhibit(s) in a three-ring binder(s) by May

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15, 2017. The attorney or representative for each party is directed to present the original

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and two (2) copies of the exhibit(s) and exhibit list to the Court Clerk’s Office, no later

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than 3:00 p.m., May 15, 2017, or at such earlier time as may be ordered by the Court.

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NO EXCEPTIONS.

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D.

The Court shall be presented with a copy of the exhibit(s) in a 3-ring

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binder(s) with a side tab identifying each exhibit by number or letter. Each binder

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shall be no larger than three inches in width and have an identification label on the

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front and side panel.

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VII.

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DISCOVERY DOCUMENTS
A.

Filing Depositions. It is the duty of counsel to ensure that any deposition

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which is to be used at trial has been lodged with the Clerk of the Court. In addition, two

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unmarked copies of the transcripts must be delivered to the Court Clerk’s Office.

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Counsel are cautioned that a failure to discharge this duty may result in the Court

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precluding use of the deposition or imposition of such other sanctions as the Court

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deems appropriate.

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B.

Use of Depositions. The parties are ordered to file with the Court and

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exchange between themselves by May 15, 2017 a statement designating portions of

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depositions intended to be offered or read into evidence (except for portions to be used

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only for impeachment or rebuttal).

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C.

Interrogatories. The parties are ordered to file with the Court and

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exchange between themselves by May 15, 2017 the portions of Answers to

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Interrogatories which the respective parties intend to offer or read into evidence at the

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trial (except portions to be used only for impeachment or rebuttal).
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VIII.

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FURTHER DISCOVERY OR MOTIONS
Pursuant to the Court’s Pretrial Scheduling Order, all discovery and law and

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motion was to have been conducted so as to be completed as of the date of the Final

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Pretrial Conference. That Order is confirmed. The parties are free to engage in informal

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agreements regarding discovery and law and motion matters. However, any such

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agreements will not be enforceable in this Court.

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IX.

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AUDIO/VISUAL EQUIPMENT
The parties are required to file electronically a joint request to the Courtroom

Deputy Clerk, Stephanie Deutsch, by May 15, 2017, if they wish to reserve and arrange

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for orientation with all parties on the Court's mobile audio/visual equipment for

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presentation of evidence. There will be one date and time for such orientation.

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X.

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DATE AND LENGTH OF TRIAL
A court trial is scheduled for May 22, 2017, at 9:00 a.m.. The estimated length of

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trial is 1 day. Counsel are to call Stephanie Deutsch, Courtroom Deputy, at (916) 930-

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4207, by May 15, 2017 to ascertain the status of the trial date. The Court will permit

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each side up to fifteen (15) minutes for closing arguments. Plaintiff will be permitted to

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reserve time for rebuttal purposes but will be required to monitor any time so reserved.

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XI.

OBJECTIONS TO PRETRIAL ORDER

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Each party is granted five (5) court days from the date of this Final Pretrial Order

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to object to any part of the order or to request augmentation to it. A Final Pretrial Order

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will be modified only upon a showing of manifest injustice. If no objection or

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modifications are made, this Order will become final without further order of the Court

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and shall control the subsequent course of the action, pursuant to Rule 16(e) of the

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Federal Rules of Civil Procedure.

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IT IS SO ORDERED.
Dated: April 25, 2017

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