Davis v. Midland Funding, LLC et al

Filing 32

STATUS (PRETRIAL SCHEDULING) CONFERENCE ORDER signed by Judge Lawrence K. Karlton on 4/8/14. Discovery deadline set for 1/17/2015. Law & Motion deadline set for 3/17/2015. Motions to Compel Discovery to be noticed on the magistrate judge's calen dar, to be heard not later than 12/17/2014. Final Pretrial Conference set for 6/15/2015 at 01:30 PM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Three day Jury Trial set for 09/15/2015 at 10:30 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY DEAN DAVIS,

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No.

CIV 13-2316 LKK/CKD

Plaintiff,
v.
MIDLAND FUNDING, LLC, a
Delaware limited liability
company; MIDLAND CREDIT
MANAGEMENT, INC., a Kansas
corporation; THE BRACHFELD
LAW GROUP, A PROFESSIONAL
CORPORATION, a California
corporation; and ERICA LYNN
BRACHFELD, individually and
in her official capacity,

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Defendants.
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STATUS (PRETRIAL SCHEDULING) CONFERENCE
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READ

THIS

ORDER

CAREFULLY.

IT

CONTAINS

IMPORTANT

DATES

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WHICH THE COURT WILL STRICTLY ENFORCE AND WITH WHICH ALL COUNSEL

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AND PARTIES MUST COMPLY.

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THIS ORDER MAY RESULT IN THE IMPOSITION OF MONETARY AND ALL OTHER

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SANCTIONS WITHIN THE POWER OF THE COURT, INCLUDING DISMISSAL OR

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AN ORDER OF JUDGMENT.

A FAILURE TO COMPLY WITH THE TERMS OF

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Pursuant

to

court

order,

a

Status

(Pretrial

Scheduling)

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Conference was held in chambers on April 7, 2014.

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Roulston appeared telephonically as counsel for plaintiff; Tomio

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B.

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Midland Funding, LLC and Midland Credit Management, Inc., and

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Erica

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defendants The Brachfeld Law Group, A Professional Corporation,

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and Erica Lynn Brachfeld. After hearing, the court makes the

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following findings and orders:

Narita

L.

appeared

telephonically

Brachfeld

appeared

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All

counsel

telephonically

for

as

defendants

counsel

for

SERVICE OF PROCESS

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as

Raeon R.

parties

have

been

served

and

no

further

service

is

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permitted except with leave of court, good cause having been

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shown.

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JOINDER OF PARTIES/AMENDMENTS

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No further joinder of parties or amendments to pleadings is

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permitted except with leave of court, good cause having been

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shown.

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(9th Cir. 1992).

See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604

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JURISDICTION/VENUE

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Jurisdiction is predicated upon 28 U.S.C. §§ 1331, 1337 &

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1367, and is disputed by all defendants.

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on a motion for lack of jurisdiction within sixty (60) days from

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the date of this order.

Defendants shall bring

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MOTION HEARING SCHEDULES

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All law and motion except as to discovery is left open, save

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and except that it shall be conducted so as to be completed by

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March 17, 2015.

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all law and motion matters must be heard by the above date.

The word "completed" in this context means that

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Because this date is not necessarily a date previously set aside

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for law and motion hearings, it is incumbent upon counsel to

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contact this court's courtroom deputy, Ana Rivas at (916) 930-

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4133, sufficiently in advance so as to ascertain the dates upon

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which law and motion will be heard and to properly notice its

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motion for hearing before that date.

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refer to Local Rule 230 regarding the requirements for noticing

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such motions on the court's regularly scheduled law and motion

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calendar.

Opposition

or

statement

Counsel are cautioned to

of

non-opposition

to

all

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motions shall be filed not later than 4:30 p.m. fourteen (14)

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days preceding the hearing date, or by proof of service by mail

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not less than seventeen (17) days preceding the hearing date.

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This

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temporary restraining orders or other emergency applications, and

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is

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"MISCELLANEOUS PROVISIONS" paragraph below.

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paragraph

subject

At

the

does

to

any

time

of

not

preclude

special

filing

motions

scheduling

a

motion,

for

set

continuances,

forth

opposition,

or

in

the

reply,

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counsel are directed to email a copy in word processing format to

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[e-mail].

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The parties should keep in mind that the purpose of law and

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motion is to narrow and refine the legal issues raised by the

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case, and to dispose of by pretrial motion those issues that are

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susceptible

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purpose, the parties need to identify and fully research the

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issues presented by the case, and then examine those issues in

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light of the evidence gleaned through discovery.

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to counsel after examining the legal issues and facts that an

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issue can be resolved by pretrial motion, counsel are to file the

to

resolution

without

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trial.

To

accomplish

that

If it appears

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appropriate motion by the law and motion cutoff set forth supra.

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Unless prior permission has been granted, memoranda of law

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in support of and in opposition to motions are limited to thirty

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(30)

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pages.

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briefs to circumvent this rule.

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pages,

and

reply

memoranda

are

limited

to

fifteen

(15)

The parties are also cautioned against filing multiple

Where the parties bring motions for summary judgment, the

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court

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undisputed

will

deem
under

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reserved

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facts
Fed.

which

R.

are

Civ.

P.

apparently
56(e),

undisputed

unless

as

specifically

reservation.

and

that

party

tenders

evidence

to

support

the

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ALL

PURELY

LEGAL

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PRETRIAL

MOTION

AND

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ORDINARILY

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COUNSEL ARE CAUTIONED THAT IF ANY LEGAL ISSUE THAT SHOULD HAVE

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BEEN TENDERED TO THE COURT BY PRETRIAL MOTION MUST BE RESOLVED BY

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THE COURT AFTER LAW AND MOTION CUTOFF, FOR INSTANCE WHERE THE

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ISSUE

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AGAINST COUNSEL WHO FAIL TO TIMELY FILE AN APPROPRIATE MOTION.

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IS

BE

VIEWED

ISSUES

A

Counsel

are

FAILURE

AS

JURISDICTION,

ARE

A

TO

TO

MAKE

WAIVER

AT

SUBSTANTIAL

further

reminded

BE

RESOLVED
SUCH

THE

TIME

SANCTIONS

that

A

BY

MOTION
OF

in

WILL

PRETRIAL.

WILL

motions

TIMELY

BE

LEVIED

limine

are

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procedural

devices

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evidence.

COUNSEL ARE CAUTIONED THAT THE COURT WILL LOOK WITH

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DISFAVOR

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MOTIONS IN LIMINE

UPON

designed

SUBSTANTIVE

to

address

MOTIONS

the

PRESENTED

admissibility

IN

THE

GUISE

of

OF

AT THE TIME OF TRIAL.

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DISCOVERY

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No modifications of the discovery requirements found in the

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Federal Rules is ordered.
All discovery is left open, save and except that it shall be
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so conducted as to be completed by January 17, 2015.

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"completed" means that all discovery shall have been conducted so

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that all depositions have been taken and any disputes relative to

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discovery

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necessary and, where discovery has been ordered, the order has

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been complied with.

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on the magistrate judge's calendar in accordance with the local

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rules of this court and so that such motions will be heard not

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later than December 17, 2014.

shall

have

been

resolved

by

The word

appropriate

order

if

Motions to compel discovery must be noticed

In this regard, all counsel are to

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designate in writing and file with the court and serve upon all

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other parties a final list of the names of all experts that they

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propose to tender at trial not later than forty-five (45) days

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before the close of discovery herein established.

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experts shall submit written reports which counsel shall exchange

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at the time of designation.

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comply

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designated are to be fully prepared to render an informed opinion

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at the time of designation so that they may fully participate in

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any deposition taken by the opposing party.

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permitted to testify at the trial as to any information gathered

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or

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subsequent to designation.

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with

Fed.

evaluated,

R.

Civ.

or

The contents of the report must

P.

opinion

All designated

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(a)(2)(B).

formed,

All

experts

so

Experts will not be

after

deposition

taken

An expert witness not appearing on said lists will not be

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permitted

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demonstrates:

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have

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exchanged;

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notified upon discovery of the witness; and (c) that the witness

been

to

testify

the

party

offering

the

witness

(a) that the necessity of the witness could not

reasonably
(b)

unless

the

anticipated

court

and

at

the

opposing

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time
counsel

the

lists

were

were

promptly

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was promptly proffered for deposition.

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MID-LITIGATION STATEMENTS

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Not later than fourteen (14) days prior to the close of

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discovery, all parties shall file with the court and serve on all

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other parties a brief statement summarizing all law and motion

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practice heard by the court as of the date of the filing of the

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statement, whether the court has disposed of the motion at the

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time the statement is filed and served, and the likelihood that

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any further motions will be noticed prior to the close of law and

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motion.

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parties

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appropriate motions as set forth above.

The filing of this statement shall not relieve the
or

counsel

of

their

obligation

to

timely

notice

all

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FINAL PRETRIAL CONFERENCE

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The Final Pretrial Conference is SET for June 15, 2015, at

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1:30

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Pretrial will in fact try the matter.

p.m.

Counsel

are

cautioned

that

counsel

appearing

for

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Counsel for all parties are to be fully prepared for trial

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at the time of the Pretrial Conference, with no matters remaining

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to

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testimony.

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relating

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Statements.

In addition to those subjects listed in Local Rule

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281(b),

the

parties

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concise

statement

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tendered to the court, and its resolution.

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WITH LOCAL RULES 280 AND 281 WILL BE GROUNDS FOR SANCTIONS.

be

accomplished

except

production

of

witnesses

for

oral

Counsel are referred to Local Rules 280 and 281
to

the

contents

are

which

to

of

and

provide

identifies

time

the
every

for

court

filing

with

Pretrial

a

plain,

non-discovery

motion

A FAILURE TO COMPLY

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The parties shall file Separate Pretrial Statements, the

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contents and timing of which are set forth in Local Rule 281,
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1

except that the parties are to prepare a JOINT STATEMENT with

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respect to the undisputed facts and disputed factual issues of

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the case.

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are reminded to include in their joint statement all disputed and

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undisputed special factual information as required by Local Rule

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281(b)(6).

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Joint Statement of Undisputed Facts and Disputed Factual Issues

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is to be filed with the court concurrently with the filing of

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plaintiff's Pretrial Statement.

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See Local Rule 281(b)(3), (4), and (6).

The parties

Notwithstanding the provisions of Local Rule 281, the

The undisputed facts and disputed factual issues are to be

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set forth in two separate sections.

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should identify first the general facts relevant to all causes of

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action.

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then identify those facts which are relevant to each separate

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cause of action.

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individual fact or factual issue.

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to agree as to what factual issues are properly before the court

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for

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"DISPUTED

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parties and explain by parenthetical the controversy concerning

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each issue.

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include the following introductory language:

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. ."

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should relate or correspond to an element of the relevant cause

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of action.

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will be read to the jury.

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In each section, the parties

After identifying the general facts, the parties should

trial,

they

FACTUAL

In this regard, the parties are to number each

should

Where the parties are unable

nevertheless

ISSUES"

all

issues

list

in

asserted

the
by

section
any

of

on
the

Each individual disputed fact or factual issue shall
"Whether or not . .

The parties should keep in mind that, in general, each fact

If the case is tried to a jury, the undisputed facts

Pursuant to Local Rule 281(b)(10) and (11), the parties are
required

to

provide

in

their

Pretrial
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Statements

a

list

of

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witnesses and exhibits that they propose to proffer at trial, no

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matter for what purpose.

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the Pretrial Statement itself, but shall be attached as separate

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documents to be used as addenda to the Final Pretrial Order.

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Plaintiff's

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exhibits shall be listed alphabetically.

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alphabet is exhausted, defendants' exhibits shall be marked "2A-

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2Z, 3A-3Z, etc."

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standard for the proffering of witnesses and exhibits at trial

exhibits

These lists shall not be contained in

shall

be

listed

numerically;

defendants'

In the event that the

The Pretrial Order will contain a stringent

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not listed in the Pretrial Order.

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standard

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listing of exhibits or witnesses which counsel do not intend to

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call or use will be viewed as an abuse of the court's processes.

will

be

strictly

Counsel are cautioned that the

applied.

On

the

other

hand,

the

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Pursuant to Local Rule 281(b)(12), a party is required to

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provide a list of all answers to interrogatories and responses to

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requests for admission that the party expects to offer at trial.

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This list should include only those documents or portions thereof

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which the party expects to offer in its case-in-chief.

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otherwise barred by a rule of evidence or order of this court,

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the parties remain free to tender appropriate discovery documents

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during

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impeachment or memory refreshment.

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trial

Pursuant

for

to

such

Local

purposes

Rule

as,

281(b)(8),

but

not

the

parties'

Unless

limited

to,

Pretrial

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Statements

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Each party shall commence this section by specifying as to each

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claim whether federal or state law governs, and if state law, the

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state whose law is applicable.

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shall

contain

a

"statement

of

legal

theory,

etc."

Counsel are also reminded that, pursuant to Fed. R. Civ. P.
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1

16, it will be their duty at the Pretrial Conference to aid the

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court in (a) formulation and simplification of issues and the

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elimination

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facts which should be properly admitted; and (c) the avoidance of

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unnecessary proof and cumulative evidence.

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their Pretrial Statements, and participate in good faith at the

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Pretrial Conference, with these aims in mind.

A FAILURE TO DO SO

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MAY

which

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monetary

RESULT

of

IN

frivolous

THE

claims

IMPOSITION

sanctions,

orders

or

of

defenses;

settling

of

Counsel must prepare

SANCTIONS

precluding

(b)

proof,

may

include

eliminations

of

10

claims or defenses, or such other sanctions as the court deems

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appropriate.

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TRIAL SETTING

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Trial is SET for September 15, 2015, at 10:30 a.m.

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will be by jury.

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Trial

trial will take approximately three (3) days.

The parties represent in good faith that the

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SETTLEMENT CONFERENCE

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A Settlement Conference will be set before a judge other

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than the trial judge at the time of the Pretrial Conference.
Counsel

are

cautioned

to

have

a

principal

capable

of

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disposition present at the Settlement Conference or to be fully

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authorized

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Settlement Conference.

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to

settle

the

matter

on

any

terms

and

at

the

MISCELLANEOUS PROVISIONS

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The parties are reminded that pursuant to Fed. R. Civ. P.

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16(b),

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modified except by leave of court upon a showing of good cause.

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Counsel are cautioned that changes to any of the scheduled dates

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will necessarily result in changes to all other dates.

the

Status

(pretrial

scheduling)

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Order

shall

not

be

Thus,

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even where good cause has been shown, the court will not grant a

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request to change the discovery cutoff date without modifying the

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pretrial and trial dates.

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Agreement by the parties pursuant to stipulation does not

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constitute good cause.

Nor does the unavailability of witnesses

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or

extraordinary

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good cause.

counsel,

except

in

circumstances,

constitute

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The parties are reminded of their continuing obligation to

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supplement their statements relative to the identification of

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parent corporations and any publicly held company that owns 10%

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or more of the party's stock within a reasonable time of any

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change in the information.

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The parties are admonished that they are not to cite or

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refer to any of the quotations inscribed in the pavers on the

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front plaza of the United States Courthouse in any written or

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oral presentation to the court or a jury.

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There appear to be no other matters presently pending before

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the court that will aid the just and expeditious disposition of

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this matter.

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IT IS SO ORDERED.

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DATED:

April 8, 2014.

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