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

Filing 62

STIPULATION and ORDER signed by Senior Judge William B. Shubb on 4/21/2017 ORDERING that discovery concerning the alleged capacity of defendant's Automatic Telephone Dialing System to make autodialed calls to Plaintiffs is CONTINUED to 7/26/20 17. Designation of Expert Witnesses due 5/30/2017. With regard to expert testimony intended solely for rebuttal, those experts shall be disclosed on or before 6/30/2017. A hearing for motion regarding the alleged capacity of Defendant's Automat ic Telephone Dialing System to make autodialed calls to Plaintiffs shall take place on 8/21/2017 at 1:30 p.m. Any motion regarding the alleged capacity of defendant's Automatic Telephone Dialing System to make autodialed calls to Plaintiffs sh all be filed by 7/24/2017, Opposition thereto shall be filed by 8/7/2017, and Reply to such Opposition shall be filed by 8/14/2017. Discovery concerning class certification shall commence on 8/29/2017. Any hearing for a motion for class certificat ion shall take place on 11/13/2017 at 1:30 p.m. Any motion for class certification shall be filed by 10/2/2017, Opposition thereto shall be filed by 10/23/2017, Reply to such Opposition shall be filed by 10/30/2017. All other dates shall remain on calendar. (Zignago, K.)

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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), AS AMENDED BY FEBRUARY
liability company dba WILSHIRE
) 9, 2017 ORDER (DOCUMENT #54),
CONSUMER CREDIT,
) FOR THE BRIEFING SCHEDULE
) ON MOTION ON ALLEGED
Defendant.
) CAPACITY OF DEFENDANT’S
) AUTOMATIC 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]
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 (DOCUMENT #38), which included a dispositive motion
calendar, tiered discovery, and discreet issues relating to standing. In said order the

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expert 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 was scheduled to

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take place on April 3, 2017 at 1:30 p.m., and the motion regarding same was to be
filed by March 6, 2017. Opposition to such motion was to be filed by March 20,
2017, and a reply to such opposition was to be filed by March 27, 2017.

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Whereas, on February 9, 2017, Judge William B. Shubb granted the parties’

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stipulation extending time and hearing dates (Document #54). Discovery

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concerning the alleged capacity of defendant’s Automatic Telephone Dialing
System to make autodialed calls to Plaintiffs was continued from February 6, 2017
to May 22, 2017. The parties were required disclose experts and produce reports

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in accordance with Federal Rule of Civil Procedure 26(a)(2) by no later than April

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24, 2017 (continued from January 3, 2017). With regard to expert testimony

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intended solely for rebuttal, those experts were to be disclosed and reports
produced in accordance with Federal Rule of Civil Procedure 26(a)(2) on or before
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STIPULATION EXTENDING TIME AND HEARING DATES

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May 22, 2017 (continued from February 3, 2017). A hearing for a motion

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regarding the alleged capacity of defendant’s Automatic Telephone Dialing System

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to make autodialed calls to plaintiffs and proposed class members was scheduled
for July 10, 2017 (Continued from April 3, 2017) at 1:30 p.m., and the motion
regarding same was to be filed by June 5, 2017 (continued from March 6, 2017),

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and a opposition to such motion was to be filed by June 19, 2017 (continued from

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March 20, 2017), and a reply to such opposition was to be filed by June 26, 2017

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(continued from March 27, 2017). Discovery concerning class certification ws
ordered to commence on July 6, 2017. Hearing on the motion for class certification

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

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filed by August 21, 2017 (continued from June 26, 2017), and a reply to such

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opposition was ordered to be filed by August 28, 2017 (continued from July 3, 2017.)

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All other dates were ordered to remain on calendar.
Whereas, given the technological complexity of the discovery, despite the best
efforts to both parties, the parties have been unable to complete discovery regarding

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the capacity issue of Defendant’s ATDS, and additional written discovery has been
propounded and depositions have been noticed in May 2017.

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Whereas, on January 3, 2017, while Defendant served an expert designation
and an appropriate report, the Plaintiffs identified 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. Plaintiffs contend that

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their expert will need more discovery from Defendant before they can appropriately

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furnish a FRCP 26(a)(2) report.
Whereas, in the interests of maintaining a high standard of professional
civility, and in an effort to resolve this impasse, on April 17, 2017, the parties met

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and conferred on the most efficient course of action. As the expert report on the

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capacity of the auto dialer not only speaks to standing but also relates to an essential

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element of the Plaintiffs’ TCPA claim, the parties have stipulated to extend the
deadlines and hearing dates and request that the Court modify its scheduling order as

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follows:
1.

Discovery concerning the alleged capacity of defendant’s Automatic

Telephone Dialing System to make autodialed calls to Plaintiffs shall be continued

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from May 22, 2017 to July 26, 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 May 30, 2017
(continued from April 24, 2017).
3.

With regard to expert testimony intended solely for rebuttal, those

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experts shall be disclosed and reports produced in accordance with Federal Rule of

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Civil Procedure 26(a)(2) on or before June 30, 2017 (continued from May 22, 2017).

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4.

A hearing for motion regarding the alleged capacity of Defendant’s

Automatic Telephone Dialing System to make autodialed calls to Plaintiffs shall
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STIPULATION EXTENDING TIME AND HEARING DATES

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take place on August 28, 2017 (Continued from July 10, 2017) at 1:30 p.m. Any

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motion regarding the alleged capacity of defendant’s Automatic Telephone Dialing

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System to make autodialed calls to Plaintiffs shall be filed by July 24, 2017
(continued from June 5, 2017), Opposition thereto shall be filed by August 7, 2017
(continued from June 19, 2017), and Reply to such Opposition shall be filed by

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August 14, 2017 (continued from June 26, 2017).

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5.

Discovery concerning class certification shall commence on August 29,

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2017 (continued from July 6, 2017).

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6.

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

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November 13, 2017 (Continued from September 18, 2017) at 1:30 p.m. Any motion
for class certification shall be filed by October 2, 2017 (continued from August 7,
2017), Opposition thereto shall be filed by October 23, 2017 (continued from August

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21, 2017), Reply to such Opposition shall be filed by October 30, 2017 (continued

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from August 28, 2017.)

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7.

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All other dates shall remain on calendar.

So Stipulated.
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STIPULATION EXTENDING TIME AND HEARING DATES

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Dated: April 21, 2017

MOLINO & BERARDINO, APLC

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s/Steven R. Berardino
Steven R. Berardino. Esq.
Attorney for Defendant,
Wilshire Commercial Capital
E-Mails: [e-mail]

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Dated: April 21, 2017

KEMNITZER BARRON & KRIEG, PC
s/Elliot J. Conn
Elliot J. Conn, Esq.
Attorney for Plaintiffs,
Verina Freeman and Valecea Diggs
E-Mail: [e-mail]

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STIPULATION EXTENDING TIME AND HEARING DATES

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Good cause carrying and based upon the stipulation of the parties the Court’s
September 22, 2016 scheduling order, amended by the February 9, 2017 order, is

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modified as follows:
1.

Discovery concerning the alleged capacity of defendant’s Automatic

Telephone Dialing System to make autodialed calls to Plaintiffs shall be continued

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from May 22, 2017 to July 26, 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 May 30, 2017
(continued from April 24, 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 June 30, 2017 (continued from May 22, 2017).

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4.

A hearing for motion regarding the alleged capacity of Defendant’s

Automatic Telephone Dialing System to make autodialed calls to Plaintiffs shall

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take place on August 21, 2017 (Continued from July 10, 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 July 24, 2017

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(continued from June 5, 2017), Opposition thereto shall be filed by August 7, 2017

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(continued from June 19, 2017), and Reply to such Opposition shall be filed by

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August 14, 2017 (continued from June 26, 2017).
5.

Discovery concerning class certification shall commence on August 29,

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STIPULATION EXTENDING TIME AND HEARING DATES

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2017 (continued from July 6, 2017).
6.

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

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November 13, 2017 (Continued from September 18, 2017) at 1:30 p.m. Any motion
for class certification shall be filed by October 2, 2017 (continued from August 7,
2017), Opposition thereto shall be filed by October 23, 2017 (continued from

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August 21, 2017), Reply to such Opposition shall be filed by October 30, 2017

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(continued from August 28, 2017.)

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7.

All other dates shall remain on calendar.

SO ORDERED.

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Dated: April 21, 2017

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PROOF OF SERVICE (F.R.C.P. 5 (b) (2) (C))

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STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

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I am a resident of the county aforesaid; I am over the age of eighteen years
and my business address is 4751 Wilshire Boulevard, Suite 207, Los Angeles,
California 90010.

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On April 21, 2017 I served the STIPULATION AND (PROPOSED)
ORDER EXTENDING THE TIME SET FORTH IN THE PRETRIAL
SCHEDULING ORDER OF SEPTEMBER 22, 2016 (DOCUMENT #38), AS
AMENDED BY FEBRUARY 9, 2017 ORDER (DOCUMENT #54), FOR THE
BRIEFING SCHEDULE ON MOTION ON ALLEGED CAPACITY OF
DEFENDANT’S AUTOMATIC TELEPHONE DIALING SYSTEM, AND
EXPERT DESIGNATION DATES, AND CLASS CERTIFICATION
DISCOVERY AND BRIEFING DATES on interested parties:
Via Mail by placing a true copy thereof enclosed in a sealed envelope with
postage fully prepaid, in the U.S. mail addressed as follows:
X By CM/ECF Notice of Electronic Filing. Said document was filed with the
Court using the CM/ECF system. Notice of this filing will be sent to all parties
registered to receive service by operation of the Court’s electronic filing system.

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[SEE ATTACHED SERVICE LIST]

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I declare under penalty of perjury that the foregoing is true and correct under
the law of the United States of America. Executed this 21st day of April 2017 Los
Angeles, California.

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__________________________
Beverly Langworthy

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STIPULATION EXTENDING TIME AND HEARING DATES

SERVICE LIST

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Freeman v. Wilshire Commercial Capital
Case No.: 2:15-cv-01428-WBS-AC
Bryan Kemnitzer
Elliot Conn
Kemnitzer, Barron & Krieg, LLP
445 Bush St., 6th Floor
San Francisco, CA 94108
[e-mail]
[e-mail]

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Scott D. Owens, Esq.
Scott D. Owens, P.A.
3800 S. Ocean Drive, Suite 235
Hollywood, FL 33019
[e-mail]

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STIPULATION EXTENDING TIME AND HEARING DATES