Freeman et al v. Wilshire Commercial Capital L.L.C.

Filing 54

STIPULATION AND ORDER signed by Senior Judge William B. Shubb on 2/9/2017 MODIFYING the 38 Status (Pretrial Scheduling) Order; ORDERING that discovery concerning the alleged capacity of Defendants Automatic Telephone Dialing System to make autodia led calls to Plaintiffs be completed by 5/22/2017; ORDERING the parties to disclose experts and produce reports by 4/24/2017 and to disclose rebuttal experts and produce reports by 5/22/2017; ORDERING that the motion regarding the alleged capacity of Defendants Automatic Telephone Dialing System to make autodialed calls to Plaintiffs be held on 7/10/2017 at 01:30 PM; ORDERING that said motion be filed by 6/5/2017; ORDERING that any opposition to said motion be filed by 6/19/2017 and that any rep ly be filed by 6/26/2017; ORDERING that discovery concerning the merits of the class commence on 7/6/2017; ORDERING that any hearing for a Motion fo Class Certification be held on 9/18/2017 at 01:30 PM; ORDERING that said motion be filed by 8/7/2017; ORDERING that any opposion to said motion be filed by 8/21/2017 and that any reply be filed by 8/28/2017; ORDERING that all other dates remain on calendar. (Michel, G.)

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MOLINO & BERARDINO, A Professional Law Corporation
Anthony A. Molino, Esq. [SBN 156661] [e-mail]
Steven R. Berardino, Esq. [SBN 075820] [e-mail]
Michelle Cooper, Esq. [SBN 093668] [e-mail]
Benjamin J. Carter, Esq. [SBN 287462] [e-mail]
4751 Wilshire Boulevard, Suite 207
Los Angeles, California 90010-3838
Telephone [phone] Facsimile [phone]

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Attorneys for Defendant, WILSHIRE COMMERCIAL CAPITAL, LLC

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[Additional Counsel on Following Sheet.]
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA

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FREEMAN and VALECEA DIGGS,
) CASE NO.: 2:15-CV-01428-WBS-AC
individually and on behalf of all others ) [CLASS ACTION]
similarly situated,
)
) STIPULATION AND (PROPOSED)
Plaintiffs,
) ORDER EXTENDING THE TIME
v.
) SET FORTH IN THE PRETRIAL
) SCHEDULING ORDER OF
WILSHIRE COMMERCIAL
) SEPTEMBER 22, 2016 (DOCUMENT
CAPITAL, LLC a California limited
) #38) FOR THE BRIEFING
liability company dba WILSHIRE
) SCHEDULE ON MOTION ON
CONSUMER CREDIT,
) ALLEGED CAPACITY OF
) DEFENDANT’S AUTOMATIC
Defendant.
) TELEPHONE DIALING SYSTEM ,
) AND EXPERT DESIGNATION
) DATES, AND CLASS
) CERTIFICATION DISCOVERY
) AND BRIEFING DATES.
)
)
) Courtroom: 5
) Assigned to: Judge William B. Shubb
) Complaint filed: July 6, 2015

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STIPULATION EXTENDING TIME AND HEARING DATES

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KEMNITZER, BARRON, & KRIEG, LLP
BRYAN KEMNITZER, Esq. Bar No. 066401
ELLIOT CONN, Esq.
Bar No. 279920
th
445 Bush St., 6 Floor
San Francisco, CA 94108
Telephone: [phone]
Facsimile: [phone]

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Scott D. Owens, Esq.
admitted pro hac vice
Scott D. Owens, P.A.
3800 S. Ocean Drive, Suite 235
Hollywood, FL 33019
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs, Verina Freeman, Valecea Diggs, and the potential class

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STIPULATION EXTENDING TIME AND HEARING DATES

This Stipulation and [Proposed] Order is submitted based upon the following

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facts:

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Whereas, on September 26, 2016, Judge William B. Shubb issued the pretrial scheduling order, where a dispositive motion calendar was set and tiered on
discovery and discreet issues relating to standing. In said order the expert

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disclosures and expert reports were to be submitted by January 3, 2017, with

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rebuttal experts disclosed on or before February 3, 2017. A hearing for a motion

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regarding the alleged capacity of defendant’s Automatic Telephone Dialing System
to make autodialed calls to plaintiffs and proposed class members shall take place

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on April 3, 2017 at 1:30 p.m., Any motion regarding the alleged capacity of
defendant’s Automatic Telephone Dialing System to make autodialed calls to
plaintiffs and proposed class members shall be filed by March 6, 2017. Any

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opposition to such motion shall be filed by March 20, 2017. Any reply to such

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opposition shall be filed by March 27, 2017.

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Whereas, the parties have been unable to complete discovery regarding
scheduling depositions necessary to address the capacity issue of Defendant’s ATDS.
The parties have agreed that additional depositions will take place on February 23,

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2017 and February 24, 2017. Plaintiff is in the process of preparing a request for

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additional documents and additional deponents that have been identified by Wilshire.

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Whereas, on January 3, 2017 while Defendant served an expert designation
and an appropriate report, the Plaintiffs did identify their expert witness but did not
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STIPULATION EXTENDING TIME AND HEARING DATES

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produce the Federal Rule of Civil Procedure 26(a)(2) report. In the interests of

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maintaining a high standard of professional civility, and in an effort to resolve this

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impasse, on January 17, 2017, the parties met and conferred on the most efficient
course of action. As the expert report on the capacity of the auto dialer not only
speaks to standing but also relates to an essential element of the plaintiffs’ TCPA

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claim, the parties have stipulated to extend the deadlines and hearing dates and

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request that the Court modify its scheduling order as follows related to the capacity

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issue (and not affecting the briefing schedule on Article III standing):
1.

Discovery concerning the alleged capacity of defendant’s Automatic

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Telephone Dialing System to make autodialed calls to plaintiffs shall be
continued from February 6, 2017 to May 22, 2017.
2.

The parties shall disclose experts and produce reports in accordance

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with Federal Rule of Civil Procedure 26(a)(2) by no later than April 21, 2017

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(continued from January 3, 2017).

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3.

With regard to expert testimony intended solely for rebuttal, those

experts shall be disclosed and reports produced in accordance with Federal
Rule of Civil Procedure 26(a)(2) on or before May 22, 2017 (continued from

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February 3, 2017).

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4.

A hearing for a motion regarding the alleged capacity of defendant’s

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Automatic Telephone Dialing System to make autodialed calls to plaintiffs
and proposed class members shall take place on July 3, 2017 (Continued
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STIPULATION EXTENDING TIME AND HEARING DATES

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from April 3, 2017) at 1:30 p.m. Any motion regarding the alleged capacity

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of defendant’s Automatic Telephone Dialing System to make autodialed

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calls to plaintiffs shall be filed by June 5, 2017 (continued from March 6,

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2017). Any opposition to such motion shall be filed by June 19, 2017

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(continued from March 20, 2017). Any reply to such opposition shall be

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filed by June 26, 2017 (continued from March 27, 2017).

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5.

Discovery concerning the merits of the purported class shall

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commence on July 6, 2017.

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6.

Any hearing for a motion for class certification shall take place on

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September 7, 2017 (Continued from July 10, 2017) at 1:30 p.m. Any motion

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for class certification shall be filed by August 1, 2017 (continued from June

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12, 2017). Any opposition to such motion shall be filed by August16, 2017

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(continued from June 26, 2017). Any reply to such opposition shall be filed by

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August 30, 2017 (continued from July 3, 2017.)

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7.

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All other dates remain on calendar.

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So Stipulated.
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STIPULATION EXTENDING TIME AND HEARING DATES

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Dated: February 3, 2017

MOLINO & BERARDINO, APLC

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s/Benjamin John Carter
Benjamin John Carter, Esq.
Attorney for Defendant,
Wilshire Commercial Capital, LLC
E-Mail: [e-mail]

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Dated: February 3, 2017

KEMNITZER BARRON & KRIEG, PC

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s/Elliot Conn
Elliot Conn, Esq.
Bryan Kemnitzer, Esq.
Attorney for Plaintiffs,
Verina Freeman and Valecea Diggs
E-Mail: [e-mail]

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STIPULATION EXTENDING TIME AND HEARING DATES

Good cause carrying and based upon the stipulation of the parties the Court’s

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September 22, 2016 scheduling order is modified as follows:

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1.

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Discovery concerning the alleged capacity of defendant’s Automatic

Telephone Dialing System to make autodialed calls to plaintiffs shall be continued
from February 6, 2017 to May 22, 2017.

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2.

The parties shall disclose experts and produce reports in accordance with

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Federal Rule of Civil Procedure 26(a)(2) by no later than April 24, 2017 (continued

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from January 3, 2017).
3.

With regard to expert testimony intended solely for rebuttal, those experts shall

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be disclosed and reports produced in accordance with Federal Rule of Civil
Procedure 26(a)(2) on or before May 22, 2017 (continued from February 3, 2017).
4.

A hearing for a motion regarding the alleged capacity of defendant’s

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Automatic Telephone Dialing System to make autodialed calls to plaintiffs and

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proposed class members shall take place on July 10, 2017 (Continued from April

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3, 2017) at 1:30 p.m. Any motion regarding the alleged capacity of defendant’s
Automatic Telephone Dialing System to make autodialed calls to plaintiffs shall be
filed by June 5, 2017 (continued from March 6, 2017). Any opposition to such

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motion shall be filed by June 19, 2017 (continued from March 20, 2017). Any

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reply to such opposition shall be filed by June 26, 2017 (continued from March

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27, 2017).
5.

Discovery concerning the merits of the purported class shall commence on

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STIPULATION EXTENDING TIME AND HEARING DATES

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July 6, 2017.

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6.

Any hearing for a motion for class certification shall take place on September

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18, 2017 (Continued from July 10, 2017) at 1:30 p.m. Any motion for class
certification shall be filed by August 7, 2017 (continued from June 12, 2017). Any
opposition to such motion shall be filed by August 21, 2017 (continued from June

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26, 2017).

Any reply to such opposition shall be filed by August 28, 2017

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(continued from July 3, 2017.)

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7.

All other dates remain on calendar.
SO ORDERED.

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Dated: February 9, 2017

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STIPULATION EXTENDING TIME AND HEARING DATES