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

Filing 65

STIPULATION and ORDER signed by Senior Judge William B. Shubb on 6/27/17. The parties shall disclose Experts and produce reports by no lather than 8/21/2017. Discovery concerning the alleged capacity of defendant's Automatic Telephone Dialing System to make autodialed calls to Plaintiffs shall be continued to 9/18/2017. With regard to expert testimony intended solely for rebuttal, those experts shall be disclosed and reports produced on or before 9/21/17. A hearing for MOTION regarding the alleged capacity of Defendant's Automatic Telephone Dialing System to make autodialed calls to Plaintiffs shall take place on 11/13/17 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 10/6/17, Opposition thereto shall be filed by 10/20/17, and Reply to such Opposition shall be filed by 10/30/17 2017. (Mena-Sanchez, L)

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6 MOLINO & BERARDINO, A Professional Law Corporation Anthony A. Molino, Esq. [SBN 156661] molino@molinolawfirm.com Steven R. Berardino, Esq. [SBN 075820] sberardino@molinolawfirm.com Michelle Cooper, Esq. [SBN 093668] mcooper@molinolawfirm.com Benjamin J. Carter, Esq. [SBN 287462] bcarter@molinolawfirm.com 4751 Wilshire Boulevard, Suite 207 Los Angeles, California 90010-3838 Telephone (323) 692-4010 Facsimile (323) 692-4015 7 Attorneys for Defendant, WILSHIRE COMMERCIAL CAPITAL, LLC 1 2 3 4 5 8 9 10 11 [Additional Counsel on Following Sheet.] UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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, ) AS AMENDED BY APRIL 24, 2017 ) ORDER (DOCUMENT #62), FOR Defendant. ) 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. ) Courtroom: 5 ) Assigned to: Judge William B. Shubb ) Complaint filed: July 6, 2015 1 ____________________________________________________________________________ STIPULATION EXTENDING TIME AND HEARING DATES 1 2 3 4 5 6 7 8 9 10 11 12 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: (415) 632-1900 Facsimile: (415) 632-1901 Scott D. Owens, Esq. admitted pro hac vice Scott D. Owens, P.A. 3800 S. Ocean Drive, Suite 235 Hollywood, FL 33019 Telephone: (954) 589-0588 Facsimile: (954) 337-0666 Attorneys for Plaintiffs, Verina Freeman, Valecea Diggs, and the potential class. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 ____________________________________________________________________________ STIPULATION EXTENDING TIME AND HEARING DATES 1 2 COMES NOW THE PARTIES TO THE ABOVE-REFERENCED ACTION AND RECITE AND STIPULATE AS FOLLOWS: 3 I. 4 5 6 INTRODUCTION By way of this stipulation, the Parties jointly request an extension of time to complete discovery regarding the alleged capacity of Defendant’s Automated 7 8 9 Telephone Dialing System (“ATDS”) and to disclose expert reports regarding the alleged ATDS. Plaintiffs have disclosed their expert, but additional discovery is 10 11 12 needed, including receiving responses to already issued third-party subpoenas to phone companies, in order to be able to provide complete expert reports. The Parties 13 14 15 16 stipulate to the following schedule and request an order from the Court setting the following:  August 21, 2017: Deadline for the Parties to disclose experts and produce 17 18 19 expert reports;  September 18, 2017: Discovery cut-off for discovery concerning the capacity 20 21 22 of Defendant’s alleged ATDS;  September 21, 2017: Deadline for the Parties to disclose rebuttal experts and 23 24 25 26 produce rebuttal expert reports;  October 6, 2017: Deadline to file any motion regarding the capacity of Defendant’s alleged Automatic Telephone Dialing System; 27 28  October 20, 2017: Deadline to file any opposition to the motion on capacity; 3 ____________________________________________________________________________ STIPULATION EXTENDING TIME AND HEARING DATES 1 2  October 27, 2017: Deadline to file reply to motion on capacity;  November 13, 2017: Hearing date for any motion regarding the capacity of 3 4 5 Defendant’s alleged Automatic Telephone Dialing System;  November 13, 2017: Following the hearing on the motion regarding the 6 7 8 9 capacity of Defendant’s alleged Automatic Telephone Dialing System, the Court will conduct a case management conference to set further dates on calendar. 10 11 12  All other dates remain on calendar. II. STATUS OF DISCOVERY 13 14 The Court’s April 24, 2017 Amended Scheduling Order (Dkt. 62) required the 15 Parties to make any motion regarding the alleged auto dialer capacity of Defendant’s 16 17 18 19 Telephone Dialing System to make autodialed calls to Plaintiffs to be filed by July 24, 2017 with a hearing date of August 28, 2017. The Parties have cooperated with discovery in anticipation of this motion. 20 21 Defendant has taken the depositions of both Plaintiffs and Plaintiffs have conducted 22 five separate depositions of various Wilshire employees, and designated persons who 23 24 25 26 are most knowledgeable. Defendant has also produced 8,175 pages of documents. In addition, Plaintiffs have issued third-party subpoenas to obtain documents from Windstream Communications fka PAETEC, Defendants telephone service provider, 27 28 in order to confirm the phone records produced. Plaintiffs await the response to 4 ____________________________________________________________________________ STIPULATION EXTENDING TIME AND HEARING DATES 1 Windstream due on July 5, 2017. The results of the Windstream subpoenas are 2 required prior to taking further Wilshire depositions and producing expert reports. 3 4 5 6 Once these Wilshire depositions, currently noticed for July 20, 2017, are complete, Plaintiffs will be able to provide an expert report and then Defendant will be able to designate a rebuttal expert, and the parties will be able to brief the issue of capacity. 7 III. 8 9 PRIOR EXTENSIONS Given the technical complexity of the issues in this case, this is the Parties’ 10 11 12 third request for an extension for discovery and briefing regarding Defendant’s alleged ATDS used to call the named Plaintiffs. The Court granting the first 13 14 15 16 extension on February 9, 2017 (Dkt. 54) and the second extension on April 24, 2017 (Dkt. 62). NOW THEREFORE THE PARTIES STIPULATE: 17 18 19 The Parties have stipulated to an extension of the deadlines and hearing dates and request that the Court modify its scheduling order as follows: 20 21 22 23 1. The parties shall disclose experts and produce reports in accordance with Federal Rule of Civil Procedure 26(a)(2) by no later than August 21, 2017. 2. Discovery concerning the alleged capacity of defendant’s Automatic 24 25 Telephone Dialing System to make autodialed calls to Plaintiffs shall be continued to 26 September 18, 2017. 27 28 3. With regard to expert testimony intended solely for rebuttal, those experts shall be disclosed and reports produced in accordance with Federal Rule of 5 ____________________________________________________________________________ STIPULATION EXTENDING TIME AND HEARING DATES 1 Civil Procedure 26(a)(2) on or before September 21, 2017. 2 4. A hearing for motion regarding the alleged capacity of Defendant’s 3 4 5 6 Automatic Telephone Dialing System to make autodialed calls to Plaintiffs shall take place on November 13, 2017 at 1:30 p.m. Any motion regarding the alleged capacity of defendant’s Automatic Telephone Dialing System to make autodialed 7 8 calls to Plaintiffs shall be filed by October 6, 2017, Opposition thereto shall be 9 filed by October 20, 2017, and Reply to such Opposition shall be filed by October 10 11 27, 2017. 12 5. On November 13, 2017, following the hearing on the motion regarding 13 14 15 the capacity of Defendant’s alleged Automatic Telephone Dialing System, the Court will conduct a case management conference to set further dates on calendar. 16 6. All other dates shall remain on calendar. 17 18 So Stipulated. 19 20 21 //// //// 22 23 //// 24 //// 25 26 27 //// //// 28 6 ____________________________________________________________________________ STIPULATION EXTENDING TIME AND HEARING DATES 1 Dated: June 26, 2017 2 MOLINO & BERARDINO, APLC s/Benjamin J. Carter Steven R. Berardino, Esq. Benjamin J. Carter, Esq. Attorneys for Defendant, Wilshire Commercial Capital E-Mails: sberardino@molinolawfirm.com bcarter@molinolawfirm.com 3 4 5 6 7 8 9 Dated: June 26, 2017 KEMNITZER BARRON & KRIEG, PC 10 11 12 13 14 15 s/Bryan Kimnitzer Bryan Kemnitzer, Esq. Elliot J. Conn, Esq. Attorney for Plaintiffs, Verina Freeman and Valecea Diggs E-Mail: bryan@kbklegal.com elliot@kbklegal.com 16 17 18 19 20 21 22 23 24 25 26 27 28 7 ____________________________________________________________________________ STIPULATION EXTENDING TIME AND HEARING DATES 1 2 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, 3 4 5 6 further amended by the April 24, 2017 order, is modified as follows: 1. The parties shall disclose experts and produce reports in accordance with Federal Rule of Civil Procedure 26(a)(2) by no later than August 21, 2017. 7 8 9 2. Discovery concerning the alleged capacity of defendant’s Automatic Telephone Dialing System to make autodialed calls to Plaintiffs shall be continued to 10 11 12 September 18, 2017. 3. With regard to expert testimony intended solely for rebuttal, those 13 14 15 16 experts shall be disclosed and reports produced in accordance with Federal Rule of Civil Procedure 26(a)(2) on or before September 21, 2017. 4. A hearing for motion regarding the alleged capacity of Defendant’s 17 18 Automatic Telephone Dialing System to make autodialed calls to Plaintiffs shall 19 take place on November 13, 2017 at 1:30 p.m. Any motion regarding the alleged 20 21 22 23 capacity of defendant’s Automatic Telephone Dialing System to make autodialed calls to Plaintiffs shall be filed by October 6, 2017, Opposition thereto shall be filed by October 20, 2017, and Reply to such Opposition shall be filed by October 24 25 26 30, 2017. 5. Following the hearing on the motion regarding the capacity of 27 28 Defendant’s alleged Automatic Telephone Dialing System on November 13, 2017, the Court will conduct a case management conference to set further dates on 8 ____________________________________________________________________________ STIPULATION EXTENDING TIME AND HEARING DATES 1 2 calendar. 7. All other dates shall remain on calendar. 3 4 SO ORDERED. 5 6 Dated: June 27, 2017 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 ____________________________________________________________________________ STIPULATION EXTENDING TIME AND HEARING DATES 1 PROOF OF SERVICE (F.R.C.P. 5 (b) (2) (C)) 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 4 5 6 I, Beverly Langworthy, am employed in the County of Los Angeles, State of California. I am over the age of eighteen years and not a party to the within action, my business address is 4751 Wilshire Boulevard, Suite 207, Los Angeles, 7 8 9 10 11 12 California 90010. On June 27, 2017 I served 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), AS AMENDED BY 13 14 15 16 APRIL 24, 2017 ORDER (DOCUMENT #62), FOR THE BRIEFING SCHEDULE ON MOTION ON ALLEGED CAPACITY OF DEFENDANT’S AUTOMATIC TELEPHONE DIALING SYSTEM, AND EXPERT 17 DESIGNATION DATES, AND CLASS CERTIFICATION DISCOVERY 18 AND BRIEFING DATES on interested parties: 19 20 21 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. 22 [SEE ATTACHED SERVICE LIST] 23 24 25 I declare under penalty of perjury that the foregoing is true and correct under the law of the United States of America. Executed this 27th day of June 2017 Los 26 27 28 Angeles, California. __________________________ Beverly Langworthy 10 ____________________________________________________________________________ STIPULATION EXTENDING TIME AND HEARING DATES 1 SERVICE LIST 2 3 4 5 6 7 8 9 10 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 bryan@kbklegal.com elliot@kbklegal.com 11 12 13 14 Scott D. Owens, Esq. Scott D. Owens, P.A. 3800 S. Ocean Drive, Suite 235 Hollywood, FL 33019 scott@scottdowens.com 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 ____________________________________________________________________________ STIPULATION EXTENDING TIME AND HEARING DATES

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